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1 SUZANNE NOVAK,* New York Registration No. 292574 JONATHAN SMITH, California State Bar No. 286941 2 Earthjustice 48 Wall Street, 19th Floor 3 New York, NY 10005 [email protected] 4 [email protected] Tel: 212-845-7376/Fax: 212-918-1556 5 * Admitted pro hac vice

6 MARIANNE L. ENGELMAN LADO,* New York Registration No. 2212579 Yale Law School 7 127 Wall Street New Haven, CT 06511 8 [email protected] Tel: (203) 432-2184 9 * Admitted pro hac vice

10 HEATHER M. LEWIS, State Bar No. 291933 Earthjustice 11 50 California Street San Francisco, CA 94111 12 [email protected] Tel: 415-217-2000/Fax: 415-217-2040 13 Counsel for Plaintiffs

14 IN THE UNITED STATES DISTRICT COURT 15 FOR THE NORTHERN DISTRICT OF CALIFORNIA 16 OAKLAND DIVISION 17 18 CALIFORNIANS FOR RENEWABLE ) Case No. 4:15-cv-03292-SBA ENERGY, ASHURST BAR/SMITH ) 19 COMMUNITY ORGANIZATION, CITIZENS ) FOR ALTERNATIVES TO RADIOACTIVE ) PLAINTIFFS’ REPLY IN SUPPORT OF 20 DUMPING, SAINT FRANCIS PRAYER ) MOTION FOR SUMMARY JUDGMENT CENTER, SIERRA CLUB and MICHAEL ) 21 BOYD ) Hearing: June 14, 2017 ) Time: 1:00 p.m. 22 Plaintiffs, ) Judge: Hon. Saundra Brown Armstrong ) Place: Courtroom 210 23 vs. ) ) 24 UNITED STATES ENVIRONMENTAL ) PROTECTION AGENCY and SCOTT PRUITT, ) 25 in his official capacity as Administrator of the ) Environmental Protection Agency, ) 26 ) Defendants. ) 27 ) )

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1 TABLE OF CONTENTS 2 TABLE OF AUTHORITIES ...... III

3 MEMORANDUM OF POINTS AND AUTHORITIES ...... 1

4 INTRODUCTION ...... 1 5 ARGUMENT ...... 2 6 I. PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR FIRST 7 FIVE CLAIMS BECAUSE EPA’S FAILURE TO COMPLY WITH REGULATORY DEADLINES IS BEYOND DISPUTE...... 2 8 II. PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR SIXTH 9 CLAIM OF A PATTERN OR PRACTICE OF UNLAWFULLY WITHHELD 10 ACTION...... 5 11 III. THIS COURT SHOULD GRANT PLAINTIFFS’ REQUESTED DECLARATORY AND INJUNCTIVE RELIEF...... 10 12 A. The Court Can and Should Grant Plaintiffs Declaratory Relief for All Claims. ...10 13 14 B. The Court Should Grant Injunctive Relief for the CARE and Sierra Club Complaints, and for all of Plaintiffs’ Pending and Future Title VI Complaints. ...13 15 CONCLUSION ...... 15 16

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1 TABLE OF AUTHORITIES 2 Page(s)

3 Cases

4 Action Alliance of Senior Citizens of Greater Philadelphia v. Heckler, 5 789 F.2d 931, 943 n.15 (D.C. Cir. 1986) ...... 12 6 Allee v. Medrano, 416 U.S. 802 (1974) ...... 6 7 American Center for Law & Justice v. U.S. Dep’t of State, 8 No. CV 16-2516 (JEB), 2017 WL 1377909 (D.D.C. Apr. 17, 2017) ...... 6, 13 9 Arik v. Astrue, 10 No. C 08-5564 SBA, 2010 WL 6490066 (N.D. Cal. Mar. 29, 2010) ...... 10 11 Ashcroft v. Mattis, 431 U.S. 171 (1977) ...... 12 12 Bernhardt v. County of Los Angeles, 13 279 F.3d 862 (9th Cir. 2002) ...... 12 14 Biodiversity Legal Foundation v. Badgley, 15 309 F.3d 1166 (9th Cir. 2002) ...... 10

16 Californians for Alternatives to Toxics v. Troyer, No. Civ. S-05-1633, 2006 WL 464084 (E.D. Cal. Feb. 27, 2006) ...... 12 17 Campos v. Nail, 18 43 F.3d 1285 (9th Cir. 1994) ...... 6 19 Center for Biological Diversity v. Brennan, 20 571 F. Supp. 2d 1105 (N.D. Cal. 2007) (Armstrong, J.) ...... 10

21 Church of Scientology of California v. United States, 506 U.S. 9 (1992) ...... 12 22 23 Citizens Task Force on Timber Sales Review v. U.S. Forest Service, 894 F.2d 409 (9th Cir. 1990) (unpublished) ...... 12 24 Clapper v. Amnesty Int’l USA, 25 133 S. Ct. 1138 (2013) ...... 14

26 Coalition of Clergy, Lawyers, & Professors v. Bush, 27 310 F.3d 1153 (9th Cir. 2002) ...... 8 28

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1 Del Monte Fresh Produce N.A., Inc. v. United States, 706 F. Supp. 2d 116 (D.D.C. 2010) ...... 7 2 DL v. District of Columbia, 187 F. Supp. 3d 1 (D.D.C. 2016), appeal docketed, No. 3 16-7076 (D.C. Cir. June 27, 2016) ...... 11 4 DocMagic, Inc. v. Ellie Mae, Inc., 5 745 F. Supp. 2d 1119 (N.D. Cal. 2010) ...... 9

6 Ensco Offshore Co. v. Salazar, Civil Action No. 10-1941, 2011 WL 121936 (E.D. La. Jan. 13, 2011), vacated in 7 irrelevant part, 781 F. Supp. 2d 332 (E.D. La. 2011) ...... 7, 8 8 Fixel v. Nevada Legislative Commission, 9 940 F.2d 1534 (9th Cir. 1991) (unpublished) ...... 9

10 Garcia v. McCarthy, 649 F. App’x 589 (9th Cir. 2016) ...... 14, 15 11 Garcia v. McCarthy, 12 No. 13-CV-03939, 2014 WL 187386 (N.D. Cal. Jan. 16, 2014) ...... 14 13 Hajro v. U.S. Citizenship & Immigration Services, 14 811 F.3d 1086 (9th Cir. 2016) ...... 5, 6, 9

15 High Sierra Hikers Association v. Blackwell, 390 F.3d 630 (9th Cir. 2004) ...... 8 16 17 Independent Towers of Washington v. Washington, 350 F.3d 925 (9th Cir. 2003) ...... 10 18 Independent Training & Apprenticeship Program v. California Dep’t of Industrial 19 Relations, 730 F.3d 1024 (9th Cir. 2013) ...... 3, 4 20 21 McElroy Electronics Corp. v. F.C.C., 86 F.3d 248 (D.C. Cir. 1996) ...... 3 22 Native Ecosystems Council v. U.S. Forest Service, 23 418 F.3d 953 (9th Cir. 2005) ...... 3

24 Native Village of Noatak v. Blatchford, 38 F.3d 1505 (9th Cir. 1994) ...... 12 25 26 Natural Resources Defense Council v. EPA, 542 F.3d 1235 (9th Cir. 2008) ...... 2 27 Natural Resources Defense Council v. EPA, 28 966 F.2d 1292 (9th Cir. 1992) ...... 11

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1 Nevada Association of Counties. v. U.S. Dep’t of the Interior, No. 3:13-cv-00712, 2015 WL 1130982 (D. Nev. Mar. 12, 2015), aff’d, No. 15- 2 15620, 2017 WL 1208591 (9th Cir. Apr. 3, 2017) ...... 8 3 New Hampshire v. Maine, 4 532 U.S. 742 (2001) ...... 14 5 Christopher P. ex rel. Norma P. v. Marcus, 915 F.2d 794 (2d Cir. 1990)...... 12 6 Norton v. Southern Utah Wilderness Alliance, 7 542 U.S. 55 (2004) ...... 15 8 Obrey v. Johnson, 9 400 F.3d 691 (9th Cir. 2005) ...... 5, 6

10 Orff v. United States, 358 F.3d 1137 (9th Cir. 2004), aff’d, 545 U.S. 596 (2005) ...... 15 11 Padres Hacia Una Vida Mejor v. Jackson, 12 922 F. Supp. 2d 1057 (E.D. Cal. 2013)...... 12 13 Padres Hacia Una Vida Mejor v. McCarthy, 14 614 F. App’x 895 (9th Cir. 2015) (unpublished) ...... 10, 12

15 Payne Enterprises, Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988) ...... 6, 9 16 17 Pearl Meadows Mushroom Farm, Inc. v. Nelson, 723 F. Supp. 432 (N.D. Cal. 1989) ...... 6 18 Price v. Stevedoring Servs. of America, Inc., 19 697 F.3d 820 (9th Cir. 2012) (en banc) ...... 4

20 Public Utilities Commission of California v. FERC, 21 100 F.3d 1451 (9th Cir. 1996) ...... 12 22 Rosemere Neighborhood Association v. EPA, 581 F.3d 1169 (9th Cir. 2009) ...... 11 23 Rutledge v. County of Sonoma, 24 No. C 07-4274 CW, 2008 WL 4414740 (N.D. Cal. Sept. 26, 2008) ...... 9

25 San Luis & Delta-Mendota Water Authority v. Haugrud, 26 848 F.3d 1216 (9th Cir. 2017) ...... 14 27 Sanes v. Budget Finance Co., 481 F. App’x 387 (9th Cir. 2012) (unpublished) ...... 2 28

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1 Seattle Audobon Society v. Moseley, 80 F.3d 1401 (9th Cir. 1996) (per curiam) ...... 10 2 Shakur v. Schriro, 3 514 F.3d 878 (9th Cir. 2008) ...... 2 4 Shoshone-Bannock Tribes v. Fish & Game Commission, Idaho, 5 42 F.3d 1278 (9th Cir. 1994) ...... 12

6 Sioux Biochemical, Inc. v. Cargill, Inc., 410 F. Supp. 2d 785 (N.D. Iowa 2005) ...... 9 7 8 Spencer v. Kemna, 523 U.S. 1 (1998) ...... 12 9 Thomas Jefferson University v. Shalala, 10 512 U.S. 504 (1994) ...... 3

11 United States v. Maricopa, County of, 151 F. Supp. 3d 998 (D. Ariz. 2015), appeal docketed, No. 15-17558 (9th Cir. 12 Dec. 31, 2015) ...... 6 13 United Steelworkers of America v. Rubber Manufacturers Association, 14 783 F.2d 1117 (D.C. Cir. 1986) ...... 12

15 Unknown Parties v. Johnson, 163 F. Supp. 3d 630 (D. Ariz. 2016) ...... 5 16 17 Vietnam Veterans of America v. CIA, No. C 09-0037, 2010 WL 291840 (N.D. Cal. Jan. 19, 2010) ...... 12 18 Statutes 19 5 U.S.C. § 706(2) ...... 15 20 Other Authorities 21 22 40 C.F.R. § 7.115 ...... 3 23 40 C.F.R. § 7.120 ...... 14 24 Brief of Appellants, Hajro v. U.S. Citizenship & Immigration Servs., 811 F.3d 1086 (9th Cir. 2015) (Nos. 11-17948, 12-17765), 2014 WL 2583551 ...... 7 25 Civil Local Rule 7-3 ...... 2 26 27 28

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1 Draft Title VI Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs (Draft Recipient Guidance) and Draft Revised Guidance for 2 Investigating Title VI Administrative Complaints Challenging Permits (Draft 3 Revised Investigation Guidance), 65 Fed. Reg. 39,650 (June 27, 2000) ...... 4 4 EPA, External Civil Rights Compliance Office, Case Resolution Manual, https://www.epa.gov/ocr/case-resolution-manual ...... 3, 4 5 Nondiscrimination in Programs or Activities Receiving Federal Assistance from the 6 Environmental Protection Agency, 80 Fed. Reg. 77,284, 77,287 (proposed Dec. 14, 2015) ...... 4, 14 7 8

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1 MEMORANDUM OF POINTS AND AUTHORITIES 2 INTRODUCTION

3 Plaintiffs demonstrated in their motion and memorandum for summary judgment, and 4 supporting evidence, (“Plaintiffs’ Motion” or “Plaintiffs’ Opening Brief”), Dkt. 98, that EPA failed 5 to issue preliminary findings regarding Plaintiffs’ underlying Title VI administrative complaints 6 within 180 days as required by law. EPA1 had missed that deadline by approximately a decade or 7 more for all of the complaints, and Plaintiffs’ Motion further showed that this egregious failure was 8 part of a pattern or practice of EPA’s unlawful withholding of preliminary findings within the 9 required time frame. Indeed, EPA began to resolve some of those administrative complaints only 10 because this lawsuit was filed.2 11 EPA submitted no evidence in opposition to Plaintiffs’ Motion. See Dkt. 100.3 Nor did EPA 12 deny that it failed to issue preliminary findings within 180 days, nor that it had a pattern or practice 13 of doing so. See id. Instead, it made a number of erroneous technical arguments, such as proposing 14 interpretations of the 180-day deadline that contradict both the plain regulatory language and 15 positions EPA has previously taken, and attempting to muddle Plaintiffs’ straightforward claims by 16 purporting to rebut straw man arguments Plaintiffs do not make. 17 EPA’s efforts at distraction fail, and Plaintiffs’ unrebutted evidence warrants summary 18 judgment in their favor. The harm Plaintiffs have suffered, EPA’s past actions, EPA’s positions in 19 this litigation, and Plaintiffs’ intentions to file future Title VI complaints together warrant the 20 declaratory and injunctive relief that Plaintiffs request. Plaintiffs should not have to combat EPA’s 21 22 23

1 24 Abbreviations used in this memorandum have the same meaning as those used in Plaintiffs’ Opening Brief unless otherwise indicated. 25 2 Plaintiffs refer the Court to their Opening Brief for a statement of the relevant facts and issues to be decided. See Dkt. 98 at 1–9. 26 3 See Defendants’ Consolidated Reply in Support of Rule 12 Motion to Dismiss and, in the 27 Alternative, Rule 56 Motion for Summary Judgment on All Claims, and Opposition to Plaintiffs’ Motion for Summary Judgment (“EPA Opposition”) (Apr. 17, 2017). 28

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1 persistent and unjustified refusal to abide by the 180-day deadline by filing a new lawsuit and 2 litigating the same arguments each time they file a Title VI Complaint.4 3 ARGUMENT 4 I. PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR FIRST FIVE CLAIMS BECAUSE EPA’S FAILURE TO COMPLY WITH REGULATORY 5 DEADLINES IS BEYOND DISPUTE.

6 Plaintiffs are entitled to summary judgment on their first five claims because EPA failed to 7 issue preliminary findings on, or otherwise resolve, their Title VI complaints within 180 days, a fact 8 EPA does not dispute in its Opposition.5 Even for the complaints EPA purports to have resolved, 9 EPA does not claim that it resolved them within 180 days, nor otherwise had a legally justifiable 10 reason for grossly exceeding the 180-day deadline and causing injury to Plaintiffs.6 EPA thereby 11 abandoned any contentions that it timely resolved Plaintiffs’ Title VI complaints “by not raising 12 them in opposition to . . . [Plaintiffs’] motion for summary judgment.” See Shakur v. Schriro, 514 13 F.3d 878, 892 (9th Cir. 2008) (internal citations and quotation marks omitted); see also Sanes v. 14 Budget Fin. Co., 481 F. App’x 387, 387 (9th Cir. 2012) (unpublished) (arguments not raised in 15 opposition to motion for summary judgment are waived). 16 Instead, in opposition, EPA attempts to skirt its responsibilities under the law by 17 unsuccessfully arguing that: (1) the 180-day deadline applies only when EPA makes an affirmative 18 4 Because this memorandum is a reply in support of Plaintiffs’ Motion, and not a sur-reply opposing 19 EPA’s Motion, Plaintiffs do not herein respond to arguments in EPA’s Opposition made solely as reply in support of EPA’s Motion. See L.R. 7-3(c),(d). Plaintiffs do not concede or waive 20 opposition to such arguments. 5 EPA mischaracterizes Plaintiffs’ argument with respect to the CARD, CARE, and Prayer Center 21 Complaints as one claiming that EPA failed to issue preliminary findings or otherwise resolve the CARD and Prayer Center Complaints at all. See Dkt. 100 at 13–14. Plaintiffs argue that EPA failed 22 to follow any of the “available pathways to resolution,” to borrow EPA’s phrase, id. at 14, within 180 days. See Dkt. 98 at 17–18. With respect to the CARE Complaint, Plaintiff argues that EPA 23 failed at any time to follow any of the available pathways because it neither informally resolved that complaint, nor issued preliminary findings about the complaint’s allegations that would allow it to 24 formally resolve or dismiss the complaint. See id. at 18–19. 6 25 Plaintiffs’ Second Amended Complaint and declarations plainly assert that they suffered a procedural injury, see Dkt. 90 ¶¶ 26, 27; Dkt. 98 at 27–28, despite EPA’s protestations to the 26 contrary. Dkt. 100 at 2–5. But whether they made these assertions is of no import. The Ninth Circuit has held that standing requirements are relaxed for procedural injuries even where plaintiffs 27 do not expressly allege that EPA denied them any procedure, especially on a motion to dismiss. See Natural Res. Def. Council v. EPA, 542 F.3d 1235, 1246 n.6 (9th Cir. 2008). 28

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1 finding that a recipient failed to comply with Title VI, and not when EPA either finds insufficient 2 evidence of such noncompliance or informally resolves the complaint; and, (2) the 180 days are 3 counted only after attempts at informal resolution prove unsuccessful. See Dkt. 100 at 13–15. The 4 Court should not adopt EPA’s tortured reading of the law for several reasons. 5 First, “no deference is due to an agency interpretation that contradicts the regulation’s plain 6 language,” as is the case here. Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 960 7 (9th Cir. 2005) (citing Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)). The 8 regulations unambiguously require that if a complaint has not been resolved within 180 days, EPA 9 must notify the recipient of “(i) [p]reliminary findings; (ii) [r]ecommendations, if any, for achieving 10 voluntary compliance; and (iii) [r]ecipient’s right to engage in voluntary compliance negotiations 11 where appropriate.” 40 C.F.R. § 7.115(c).7 The provision in no way limits the definition of 12 “preliminary findings” to only affirmative findings of noncompliance, as EPA contends. Id. The 13 regulations also state that the 180-day clock runs “from the start of the . . . complaint investigation,” 14 not from the conclusion of an unsuccessful attempt at informal resolution. Id. EPA’s position thus 15 finds no support in the text of its regulations. 16 Second, the Court should not defer to EPA’s litigation position that the requirement to issue 17 preliminary findings applies only to situations where it affirmatively finds discrimination because 18 this position is inconsistent with both the agency’s prior policies and its practice. See Indep. 19 Training & Apprenticeship Program v. California Dep’t of Indus. Relations, 730 F.3d 1024, 1034 20 (9th Cir. 2013) (no deference owed to agency’s newfound policy interpretation); McElroy Elecs. 21 Corp. v. F.C.C., 86 F.3d 248, 255 (D.C. Cir. 1996) (no deference afforded when interpretation is 22 belied by prior practice). EPA’s Case Resolution Manual, the agency’s procedural guidance for its 23 civil rights case managers, and EPA’s Draft Revised Investigation Guidance, a 2000 statement by 24 7 EPA’s Case Resolution Manual states that EPA will suspend its complaint investigation when 25 parties enter into alternative dispute resolution (“ADR”) proceedings, and will reinstate investigation upon the unsuccessful conclusion of those proceedings. EPA, External Civil Rights Compliance 26 Office, Case Resolution Manual (“Case Resolution Manual”) 21, 49 (2017), https://www.epa.gov/ocr/case-resolution-manual. Even so, no evidence exists that ADR 27 proceedings properly tolled the investigations into any of Plaintiffs’ complaints such that the 180- day deadline was not violated. 28

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1 the agency of the substantive standards investigators apply in Title VI investigations, explain that, 2 unless informal resolution is reached before 180 days, EPA must issue preliminary findings within 3 180 days following every investigation, even when EPA ultimately dismisses a complaint based on a 4 finding of compliance.8 And EPA’s practice is to issue detailed findings whenever it dismisses an 5 accepted complaint.9 These “conflicts between [EPA’s] current and previous interpretations” of its 6 regulations suggest that EPA’s “convenient litigating position . . . is no more than a post hoc 7 rationalization advanced by an agency seeking to defend past agency action against attack.” Indep. 8 Training, 730 F.3d at 1034 (quoting Price v. Stevedoring Servs. of Am., Inc., 697 F.3d 820, 830 n.4 9 (9th Cir. 2012) (en banc)). 10 Third, EPA’s argument that it need only meet the 180-day deadline if it is issuing affirmative 11 findings of noncompliance defies logic and undermines the purpose of Title VI. Under its 12 interpretation, EPA must issue a finding of noncompliance within 180 days, but EPA would be able 13 to take all the time it wants to issue a finding of insufficient evidence or compliance. This makes no 14 sense: the determination of compliance and noncompliance are two sides of the same coin. EPA 15 would have to make the determination of compliance or noncompliance at the 180-day mark to 16 know if the deadline applied. The purpose of the 180-day deadline is for the complainant and the 17 recipient to learn promptly whether there was improper discrimination and to take appropriate 18 responsive actions. With a requirement to issue findings only of noncompliance within 180 days, if

19 8 Case Resolution Manual at 28–30 (discussing EPA’s issuance of findings both of noncompliance and of “insufficient evidence” of noncompliance, i.e., compliance); Draft Title VI Guidance for EPA 20 Assistance Recipients Administering Environmental Permitting Programs (Draft Recipient Guidance) and Draft Revised Guidance for Investigating Title VI Administrative Complaints 21 Challenging Permits (Draft Revised Investigation Guidance), 65 Fed. Reg. 39,650, 39,670 § C.II.A.3 & 39,687 (June 27, 2000) (flowchart noting EPA must “issue[] preliminary findings . . . [within 180 22 days]” before a “complaint [can be] dismissed”); see also Nondiscrimination in Programs or Activities Receiving Federal Assistance from the Environmental Protection Agency, 80 Fed. Reg. 23 77,284, 77,287 (proposed Dec. 14, 2015) (“EPA Proposed Rule”) (EPA admitting that the 180-day timeframe of § 7.115(c) is a “self-imposed, inflexible deadline”). 24 9 See, e.g., Dkt. 101-1 (letter closing ABSCO Complaint and setting forth basis for finding of 25 insufficient evidence of noncompliance); Declaration of Marianne Engelman Lado, dated May 5, 2017 (“Lado Decl.”) Exs. 3, 4 (letters dismissing complaints with extensive investigative reports). 26 The findings in EPA’s June 6, 2016 letter concerning the CARE Complaint are not responsive to the complaints’ allegations and therefore do not qualify as “preliminary findings” under EPA’s 27 regulations. See Dkt. 98 at 18–19. Nevertheless, EPA’s issuance of these infirm findings is further evidence of EPA’s practice of issuing findings prior to dismissal. 28

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1 no findings are issued at that 180-day benchmark, the parties would not know whether EPA 2 determined compliance, or whether EPA had not yet completed its investigation. Thus, the parties 3 would not know which next steps might be appropriate.10 4 II. PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR SIXTH CLAIM OF A PATTERN OR PRACTICE OF UNLAWFULLY WITHHELD 5 ACTION. 6 Plaintiffs demonstrated in their opening brief that they are entitled to summary judgment on 7 their pattern or practice claim because they demonstrated both that: (1) EPA has a policy or practice 8 of unlawfully withholding issuance of preliminary findings within the required 180 days for 9 unresolved accepted Title VI complaints; and, (2) that practice will harm plaintiffs in the future. See 10 Dkt. 98 at 13–14; Hajro v. U.S. Citizenship & Immigration Servs., 811 F.3d 1086, 1103 (9th Cir. 11 2016). As the Ninth Circuit has explained, one way in which a party may demonstrate that unlawful 12 conduct is part of a “pattern or practice,” and not just an isolated event, is to provide the court with 13 evidence of “similarly situated” people “who were also harmed by the pattern or practice.” Hajro, 14 811 F.3d at 1104, 1106; see also Obrey v. Johnson, 400 F.3d 691, 694 (9th Cir. 2005) (to prevail in 15 pattern or practice case, plaintiff establishes that discrimination was company’s “standard operating

16 procedure—the regular rather than the unusual practice.”) (internal citation and quotation marks 17 omitted); Unknown Parties v. Johnson, 163 F. Supp. 3d 630, 639 (D. Ariz. 2016) (“A policy, 18 practice, or custom may be inferred from widespread practices or evidence of repeated [actions]”); 19 Dkt. 98 at 13–14. Here, sworn, unrebutted testimony and evidence shows that EPA unlawfully 20 withheld issuance of timely preliminary findings (for approximately a decade or more, and in one 21 instance over two decades) in all five of Plaintiffs’ underlying complaints. See Dkt. 98 at 3–8. The 22 existence of the underlying pattern or practice is supported not only by EPA’s failure to meet its 23 deadlines in those five instances, but also by evidence and findings regarding similarly situated 24 people in other court cases, as well as governmental and investigative reports, including reports 25 10 Even under EPA’s novel interpretation of the regulatory language, the 180-day deadline applied to 26 the preliminary findings of discrimination in the Prayer Center Complaint, and there can be no dispute that EPA was grossly out of compliance with that deadline. See Dkt. 98-8 Ex. 4. And if 27 EPA were to issue preliminary findings of noncompliance for the Sierra Club Complaint, that too would violate the law under EPA’s interpretation. 28

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1 issued by the U.S. Commission on Civil Rights and commissioned by EPA itself. See id. at 8–9, 2 14.11 3 In opposition to this showing, EPA did not argue that no such pattern or practice exists, nor 4 that Plaintiffs’ pattern or practice claims fails because Plaintiffs will not suffer future injury from the 5 pattern or practice.12 It therefore waived such arguments. See supra Section I at p. 2. Rather, 6 lacking a substantive rebuttal to this evidence, EPA attempts to evade liability with a series of 7 technical arguments. Because, as discussed below, those arguments have no merit, Plaintiffs are 8 entitled to summary judgment on their pattern or practice claim. 9 EPA falsely claims that there is an absence of Ninth Circuit authority for “the availability of . 10 . . ‘pattern or practice’ claims beyond the FOIA context.” Dkt. 100 at 22. But the Ninth Circuit, and 11 indeed the Supreme Court, have recognized “pattern or practice” claims of unlawful conduct in a 12 myriad of contexts. See, e.g., Allee v. Medrano, 416 U.S. 802, 814–16 (1974) (42 U.S.C. § 1983 13 actions against state officers for conspiring to deprive First Amendment rights); Obrey, 400 F.3d at 14 694 (employment discrimination in violation of Title VII of the Civil Rights Act); Campos v. Nail, 15 43 F.3d 1285, 1290–91 (9th Cir. 1994) (immigration judge’s unconstitutional practice of denying 16 changes of venue); see also United States v. Maricopa, Cnty. of, 151 F. Supp. 3d 998, 1021 (D. Ariz. 17 2015), appeal docketed, No. 15-17558 (9th Cir. Dec. 31, 2015) (discrimination in violation of Title 18 VI); Pearl Meadows Mushroom Farm, Inc. v. Nelson, 723 F. Supp. 432, 451 (N.D. Cal. 1989)

19 11 EPA cites American Center for Law & Justice v. U.S. Dep’t of State (“ACLJ”), No. CV 16-2516 (JEB), 2017 WL 1377909 (D.D.C. Apr. 17, 2017), Dkt. 100-2, a district court case in the District of 20 Columbia, to contend that Plaintiffs may not prove the existence of a pattern or practice with past instances of people who were harmed by the alleged pattern or practice. See Dkt. 100 at 22. But 21 such a proposition would contradict Ninth Circuit case law. See, e.g, Hajro, 811 F.3d at 1104, 1106; Obrey, 400 F.3d at 694. It would also make no sense—given that a policy or practice may be 22 informal, rather than an official statement or regulation, see Payne Enters., Inc. v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988), how else would plaintiffs prove a pattern or practice claim other 23 than by showing prior instances of delay? In any event, ACLJ does not restrict the admissibility of such evidence. Rather, that court found that the plaintiff there had failed to “spell out the actual 24 thrust of its claim with greater specificity” in its complaint because it alleged only that the agency had a “reputation” for disregarding its obligations. 2017 WL 1377909, at *6 (emphasis in original). 25 Here, by contrast, Plaintiffs specifically alleged in their Complaint that EPA has demonstrated a pattern or practice of unreasonable delay and unlawful withholding of preliminary findings for 26 accepted Title VI complaints. Dkt. 90 ¶¶ 95–100. 12 27 EPA did argue, unpersuasively, that Plaintiffs could not establish future injury with respect to other claims. See infra Section III.B. 28

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1 (workplace raids by federal officers in violation of Fourth Amendment). Plaintiffs highlighted Ninth 2 Circuit cases involving FOIA pattern or practice claims in their Opening Brief because they are 3 analogous to Plaintiffs’ claim here—an alleged pattern or practice of an agency’s failure to take 4 discrete actions within a mandatory time frame. Courts outside the Ninth Circuit have similarly 5 recognized pattern or practice claims under 5 U.S.C. § 706(1) resembling Plaintiffs’ claim here—for 6 an agency’s alleged failure to timely act. See, e.g., Ensco Offshore Co. v. Salazar, Civil Action No. 7 10-1941, 2011 WL 121936, at *10 (E.D. La. Jan. 13, 2011) (rejecting government’s motion to 8 dismiss pattern or practice claim for failure to timely decide permit applications for deepwater 9 drilling), vacated in irrelevant part, 781 F. Supp. 2d 332 (E.D. La. 2011). 10 EPA, on the other hand, has failed to point to any Ninth Circuit case law holding that a 11 pattern or practice of unlawfully withholding mandatory agency action under 42 U.S.C. § 706(1) 12 cannot, as a matter of law, be sustained. Nor has EPA identified any persuasive reason why the 13 Ninth Circuit would hold that a pattern or practice claim under § 706(1) regarding discrete 14 mandatory actions could not be sustained.13 EPA tries to hang its hat on the non-binding order in 15 Del Monte Fresh Produce N.A., Inc. v. United States, 706 F. Supp. 2d 116 (D.D.C. 2010). EPA 16 contests Plaintiffs’ distinction of Del Monte as a case where the action at issue was discretionary, 17 unlike the mandatory requirement here. Dkt. 100 at 23 & n.12; Dkt. 98 at 15–16. But the Del Monte 18 Court made that distinction itself, rejecting an analogy to Payne Enterprises., Inc. v. United States 19 because Payne involved “the repeated denial of Freedom of Information Act requests based on the 20 invocation of inapplicable statutory exemptions rather than delay of an action over which the agency 21 had discretion.” 706 F. Supp. 2d at 120. Ensco, which involved allegations of failure to timely act, 22 is more analogous than Del Monte. 23 EPA also tries to muddle the issue by claiming Plaintiffs are “assert[ing] the rights of other 24

13 25 Indeed, in Hajro, another federal agency took the position that “judicial remedies in a FOIA pattern and practice case are subject to the same limits as suits under the APA,” Brief of Appellants, 26 Hajro v. U.S. Citizenship & Immigration Servs., 811 F.3d 1086 (9th Cir. 2015) (Nos. 11-17948, 12- 17765), 2014 WL 2583551, at *43, acknowledging that if the Ninth Circuit were to recognize a 27 pattern or practice claim regarding agency failure to meet a statutory deadline under FOIA, which it has, it likely would also recognize one under the APA. 28

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1 entities not party to this action” and are “seek[ing] wholesale improvement” of EPA. Dkt. 100 at 2 20–21 (internal citation and quotation marks omitted). Neither of these arguments has any merit. 3 Plaintiffs have not asserted the rights of others, and EPA’s reliance on Coalition of Clergy, Lawyers, 4 & Professors v. Bush, 310 F.3d 1153 (9th Cir. 2002), which addresses the question whether a non- 5 detainee plaintiff may assert “next friend” standing to raise claims on behalf of detainees, is grasping 6 at straws. Third party standing is wholly distinct from the right of a plaintiff to introduce evidence 7 to establish that a defendant’s behavior establishes a pattern or practice, which, as discussed above, 8 is permitted and routine. See supra at pp. 5–6. 9 Nor do Plaintiffs seek wholesale improvement of EPA or any of its programs. Rather, they 10 seek narrow relief only for themselves and only regarding the pattern or practice of particular 11 unlawful agency action that has harmed them and is at issue in this action—withholding of 12 preliminary findings regarding accepted Title VI complaints past 180 days. As the Ninth Circuit and 13 other courts have found, such a claim does not amount to an improper request for wholesale 14 improvement, and thus is proper. See, e.g., High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 15 639 (9th Cir. 2004) (rejecting defendant’s argument that challenge to series of specific, discrete and 16 similar agency actions amounted to improper programmatic challenge); Ensco, 2011 WL 121936, at 17 *10 (rejecting allegation of improper broad programmatic attack where plaintiffs challenged 18 repeated discrete agency actions and “merely [sought] an order from th[e] [c]ourt that tells the 19 government to make a decision on a small number of specific permit applications that directly 20 affect” plaintiffs); see also Nev. Ass’n of Cntys. v. U.S. Dep’t of the Interior, No. 3:13-cv-00712, 21 2015 WL 1130982, at *2 (D. Nev. Mar. 12, 2015) (recognizing viability of challenge to multiple 22 agency actions unlawfully withheld when challenged actions are discrete, but dismissing claims 23 where plaintiffs failed to allege a single event or particular instance where federal defendants 24 violated the law), aff’d, No. 15-15620, 2017 WL 1208591 (9th Cir. Apr. 3, 2017); Dkt. 98 at 13–21. 25 EPA’s final argument in opposition, that the pattern or practice claim is redundant of 26 individual claims of unlawful withholding, Dkt. 100 at 21, also has no merit. As the Ninth Circuit 27 explained in Hajro, a claim attacking a specific agency action of past unlawful withholding 28 “differ[s] from” a claim that an agency has a pattern or practice that will impair a party’s rights in

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1 the future, and they are “two separate claims” that can be brought in the same lawsuit. 811 F.3d at 2 1102–03 (discussing viability of pattern or practice claim if plaintiffs had standing, alongside 3 resolved claim that documents were previously unlawfully withheld in particular circumstances).14 4 Indeed, a claim is redundant of another claim only if it “marshals no new factual allegations nor any 5 new legal theories upon which [the plaintiff] could obtain relief.” DocMagic, Inc. v. Ellie Mae, Inc., 6 745 F. Supp. 2d 1119, 1134 (N.D. Cal. 2010); see also Sioux Biochemical, Inc. v. Cargill, Inc., 410 7 F. Supp. 2d 785, 804 (N.D. Iowa 2005) (claims not redundant if they “require proof of different 8 elements”). Here—and generally by its very definition—Plaintiffs’ pattern or practice claim 9 marshals both additional facts and a different legal theory than the five other claims, each of which 10 involve only one administrative complaint, and thus it is not redundant of any of Plaintiffs’ 11 individual claims. See, e.g., Payne, 837 F.2d at 491 (contrasting policy and practice claim with that 12 of an isolated mistake).15 In the effort to support its redundancy argument, EPA again grasps at 13 straws, citing cases that do not involve pattern or practice claims and are wholly inapposite. See 14 Fixel v. Nev. Legislative Comm’n, 940 F.2d 1534 (9th Cir. 1991) (unpublished) (concerning a pro se 15 defendant’s two redundant access to courts claims); Rutledge v. Cnty. of Sonoma, No. C 07-4274 16 CW, 2008 WL 4414740, at *4 n.3 (N.D. Cal. Sept. 26, 2008) (regarding redundancy between claims 17 18 19 20

21 14 EPA is incorrect in contending that Hajro’s only relevance is that it demonstrates that CARE, CARD and Prayer Center’s claims must be dismissed as moot. Dkt. 100 at 22. To the contrary, the 22 Court in Hajro held that “where a plaintiff alleges a pattern or practice of FOIA violations and seeks declaratory or injunctive relief, regardless of whether his specific FOIA requests have been mooted,” 23 the plaintiff could show injury in fact to sustain a pattern or practice claim. Hajro, 811 F.3d at 1103 (emphasis added); see also infra Section III. The Hajro Court concluded that one of the plaintiffs no 24 longer maintained standing only because, having been granted citizenship, the probability of harm to him from the unlawful delay of the production of documents to support a naturalization application 25 was, unlike Plaintiffs’ documented expected harm here, remote. 811 F.3d at 1102; see infra Section III. 26 15 Indeed, EPA itself cites Payne for the proposition that a party’s pattern or practice claim can still 27 be viable even if his individual claim is moot. Dkt. 100 at 22 n.11. That proposition would make no sense if a pattern or practice claim were merely redundant of individual claims. 28

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1 of false imprisonment and false arrest that were based on same infringement by same conduct).16 2 Plaintiffs have demonstrated, and EPA has not rebutted (or even argued to the contrary) that 3 EPA has a policy or practice of unlawfully withholding issuance of preliminary findings within the 4 required 180 days for unresolved accepted Title VI complaints. See Dkt. 98 at 13–14. Plaintiffs 5 further demonstrated that they will suffer injury in the future as a result of that practice. See 6 Schmitter Decl. ¶¶ 14, 17–19, 26–27, Dkt. 98-8; Boyd Decl. ¶¶ 16–19, 32–33, Dkt. 98-1; Fields 7 Decl. ¶¶ 5, 11, 19–20, 23–24, Dkt. 98-3; Reade Decl. ¶¶ 12–16, 21, Dkt. 98-7; Gosa Decl. ¶¶ 23, 33, 8 Dkt. 98-4; see also infra Section III.A. Plaintiffs are therefore entitled to summary judgment on 9 their sixth claim. 10 III. THIS COURT SHOULD GRANT PLAINTIFFS’ REQUESTED DECLARATORY AND INJUNCTIVE RELIEF. 11 A. The Court Can and Should Grant Plaintiffs Declaratory Relief for All Claims. 12

13 As Plaintiffs explained in their Opening Brief, this Court should grant declaratory judgment 14 as to all their claims because such relief is warranted to remedy an agency’s failure to comply with a 15 legally binding deadline. See Dkt. 98 at 17–18; Ctr. for Biological Diversity v. Brennan, 571 F. 16 Supp. 2d 1105, 1132 (N.D. Cal. 2007) (Armstrong, J.). The Declaratory Judgment Act is intended to 17 avert future litigation by “declaring in one action the rights and obligations of the litigants” where, as 18 here, “defendants . . . have faced numerous lawsuits.” Biodiversity Legal Found. v. Badgley, 309 19 F.3d 1166, 1172 (9th Cir. 2002) (quoting Seattle Audobon Soc’y v. Moseley, 80 F.3d 1401, 1405 (9th 20 Cir. 1996) (per curiam)). EPA has been repeatedly sued over its delays in resolving civil rights 21 complaints. See, e.g., Padres Hacia Una Vida Mejor v. McCarthy, 614 F. App’x 895 (9th Cir. 2015) 22

16 23 EPA claims in its Opposition that Plaintiffs made a “half-hearted” attempt to distinguish such redundancy in its opening brief. See Dkt. 100 at 21. Plaintiffs’ footnote in its Motion sufficiently 24 disposed of the issue. See Dkt. 98 at 15 n.7. Regardless, however, EPA is the party that had mentioned the issue of alleged “redundancy” only in passing, and thus failed to even present the 25 issue for determination in its opening brief. Dkt. 93 at 15; See, e.g., Indep. Towers of Wash. v. Washington, 350 F.3d 925, 930 (9th Cir. 2003) (holding that appellant’s argument was not properly 26 presented on appeal because courts “require contentions to be accompanied by reasons”); Arik v. Astrue, No. C 08-5564 SBA, 2010 WL 6490066, at *3 n.1 (N.D. Cal. Mar. 29, 2010) (Armstrong, J.) 27 (“The bare assertion of an issue in an opening brief is insufficient to present the matter for determination.”). 28

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1 (unpublished); Rosemere Nbh’d Ass’n v. EPA, 581 F.3d 1169 (9th Cir. 2009). Future litigation is 2 likely because EPA refuses to admit fault, continues to violate the deadlines provided by its Title VI 3 regulations, and even disputes the clear meaning of those deadlines. See supra Section I. A court 4 order clarifying EPA’s obligations under 40 C.F.R. §§ 7.115 and 7.120 would serve the purposes of 5 the Declaratory Judgment Act. See Natural Res. Def. Council v. EPA, 966 F.2d 1292, 1299 (9th Cir. 6 1992) (declaratory judgment appropriate when doing so would “clarify and settle the legal relations 7 at issue” and “afford relief from the uncertainty and controversy giving rise to the proceedings”). 8 EPA fails to argue that the Court should not grant declaratory relief to ABSCO or Sierra 9 Club, or to all Plaintiffs on their pattern and practice claim, and therefore waives any opposition to 10 those requests. See supra Section I.17 Furthermore, EPA’s arguments as to why declaratory relief is 11 inappropriate as to the other parties and claims all fail. EPA incorrectly asserts that CARE, Boyd, 12 CARD, and the Prayer Center should not receive declaratory relief because their claims are moot and 13 such a declaration would thus be advisory. Dkt. 100 at 8–9. These Plaintiffs’ claims, however, 14 remain live under the voluntary cessation doctrine because EPA has not met the “formidable burden” 15 of demonstrating that its unlawful delay will not recur. See Dkt. 98 at 31–33.18 EPA could establish 16 mootness only by showing that Plaintiffs will not file new complaints, or that EPA would timely 17 resolve them. See id. at 31–32; Rosemere, 581 F.3d at 1174 (burden on agency to demonstrate 18 plaintiff will not file additional complaints); DL v. District of Columbia, 187 F. Supp. 3d 1, 4, 11–16 19 (D.D.C. 2016) (defendants failed to meet burden even where they had proven “robust” compliance 20 for past five years and, to prevail in future, plaintiffs would need to prove defendants’ bad faith), 21 appeal docketed, No. 16-7076 (D.C. Cir. June 27, 2016). EPA has not even attempted to make such 22 a showing. See generally Dkt. 100 at 7–13.

23 17 On May 1, 2017, EPA filed a Notice that asserts that “the claims of Plaintiff [ABSCO] are moot.” Dkt. 101. EPA’s Notice makes no assertion as to whether ABSCO is entitled to declaratory or 24 injunctive relief. Id. 18 25 EPA’s contention that the CARD Complaint is moot also contradicts assertions it recently made in an Informal Resolution Agreement with the New Mexico Environment Department (“NMED”). 26 That agreement states that EPA will monitor NMED’s compliance with its contents, may reopen the investigation should NMED fail to comply with its terms, and will close the complaint via letter only 27 once it determines that the terms have been satisfied. See Ex. 3 to Reade Decl., Dkt. 98-7. EPA has not issued a letter closing the CARD Complaint. Lado Decl. ¶ 4 . 28

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1 EPA erroneously tries to shift the burden to Plaintiffs and falsely argues that Plaintiffs failed 2 to prove their plans to file Title VI complaints in the future, and that their plans are merely 3 hypothetical. See Dkt. 100 at 8, 11. EPA’s argument is patently refuted by EPA’s April 28, 2017 4 recognition of a new complaint filed by ABSCO and the unrebutted sworn testimony of other 5 Plaintiffs. See Lado Decl. ¶ 3 & Ex. 2; Boyd Decl. ¶ 28, Dkt. 98-1 (“CARE plans to file additional 6 Title VI complaints about the Los Medanos and Delta Energy Centers” with EPA.); Schmitter Decl. 7 ¶ 23, Dkt. 98-8 (“I plan to file a Title VI complaint with EPA regarding new developments at the 8 Genesee Power Station.”); Reade Decl. ¶ 19, Dkt. 98-7 (“I will definitely file another Title VI 9 complaint on behalf of CARD with EPA.”). 10 The cases EPA cites in support of its argument that declaratory relief should not be granted 11 are inapposite. Most of those cases concerned claims that were moot, in contrast to the claims 12 here.19 Further, in Vietnam Veterans of America v. CIA the court found that the plaintiffs—unlike 13 CARE, Boyd, CARD, ABSCO, and the Prayer Center—did not plead that they could face the same 14 injury in the future absent a ruling in their favor. Vietnam Veterans, No. C 09-0037, 2010 WL 15 291840, at *5 (N.D. Cal. Jan. 19, 2010); see Dkt. 100 at 8; Dkt. 98 at 14, 22. The other cases cited 16 in EPA’s Opposition did not even involve declaratory relief. See Dkt. 100 at 9 (quoting Church of 17 Scientology of Cal. v. United States, 506 U.S. 9 (1992)); id. at 10 n.6 (quoting United Steelworkers 18 of Am. v. Rubber Mfrs. Ass’n, 783 F.2d 1117, 1120 (D.C. Cir. 1986)).20 The Court should grant 19 Plaintiffs declaratory judgment on all six of their claims.

20 19 See Dkt. 100 at 7–10 (citing Spencer v. Kemna, 523 U.S. 1, 18 (1998); Ashcroft v. Mattis, 431 21 U.S. 171, 172 (1977); Bernhardt v. Cnty. of Los Angeles, 279 F.3d 862, 871 (9th Cir. 2002); Pub. Utilities Comm’n of Cal. v. FERC, 100 F.3d 1451, 1458 (9th Cir. 1996); Shoshone-Bannock Tribes 22 v. Fish & Game Comm’n, Idaho, 42 F.3d 1278, 1282-83 (9th Cir. 1994); Native Vill. of Noatak v. Blatchford, 38 F.3d 1505, 1511 (9th Cir. 1994); Christopher P. ex rel. Norma P. v. Marcus, 915 F.2d 23 794, 802-803 (2d Cir. 1990); Citizens Task Force on Timber Sales Review v. U.S. Forest Serv., 894 F.2d 409, at *3 (9th Cir. 1990) (unpublished); Action Alliance of Senior Citizens of Greater Phila. v. 24 Heckler, 789 F.2d 931, 943 n.15 (D.C. Cir. 1986); Californians for Alternatives to Toxics v. Troyer, No. Civ. S-05-1633, 2006 WL 464084, at *6 (E.D. Cal. Feb. 27, 2006)). 25 20 EPA also misleadingly attributes the statement that “there is no useful purpose that would be 26 served by granting Plaintiffs’ requested declaratory relief” to the Ninth Circuit in Padres. Dkt. 100 at 9. The Ninth Court was merely quoting the District Court opinion, and was not stating its own 27 finding. Padres, 614 F.App’x at 896 (quoting Padres Hacia Una Vida Mejor v. Jackson, 922 F. Supp. 2d 1057, 1070 (E.D. Cal. 2013)). 28

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1 B. The Court Should Grant Injunctive Relief for the CARE and Sierra Club Complaints, and for All of Plaintiffs’ Pending and Future Title VI Complaints. 2 3 Plaintiffs demonstrated in their Opening Brief that the Court should issue an injunction that 4 requires EPA to both (1) issue preliminary findings for the unresolved accepted allegations of the 5 CARE and Sierra Club Complaints;21 and (2) comply with the 180-day timeline to issue preliminary 6 findings for any of Plaintiffs’ Title VI complaints accepted by EPA for investigation after the filing 7 of this action. Dkt. 98 at 18–22. EPA has not contested Plaintiffs’ entitlement to injunctive relief 8 for the Sierra Club and ABSCO Complaints and thus has waived any such argument to that effect. 9 See supra Section I at p. 2. 10 EPA incorrectly argues that the Court’s previous Order on Plaintiffs’ Motion for Leave to 11 File Second Amended Complaint (“Order”), Dkt. 86, bars Plaintiffs’ prayer for prospective 12 injunctive relief. But prospective injunctive relief is a proper form of just and equitable relief for 13 EPA’s violations that need not be specifically enumerated in the prayer of the complaint. See Dkt. 14 98 at 19–22 & n.11. Indeed, ACLJ, a recent case EPA attached to its Opposition, supports Plaintiffs’ 15 argument that a court may draw on its general equitable powers, in addition to those provided by a 16 specific statute, to order prospective injunctive relief to “prevent [an agency] from engaging in a 17 policy or practice . . . insofar as it [affects] [the plaintiffs’] requests,” rather than those of the general 18 public. ACLJ, 2017 WL 1377909, at *3 (emphasis in original). 19 Moreover, in the Order, this Court held only that it would not allow a specific prayer for 20 prospective injunctive relief to be added to Plaintiff’s operative complaint based on the evidence and 21 allegations before it at the time. Dkt. 86 at 9–11. But the unrefuted evidence now before the Court 22 demonstrates that Plaintiffs will likely suffer injury in the future without such relief. See supra 23 Section II.A. EPA unpersuasively argues that such future injury is conjectural, relying only on cases 24 that, unlike this one, involve entirely speculative chains of events dependent on the actions of third 25

21 26 After Plaintiffs filed their motion, EPA closed the ABSCO Complaint investigation in a letter that made findings of insufficient evidence of noncompliance with Title VI. See Dkt. 101-1. 27 Accordingly, Plaintiffs no longer seek injunctive relief compelling EPA to issue preliminary findings for the ABSCO Complaint. 28

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1 parties or uncontrollable circumstances. Dkt. 100 at 6; see Clapper v. Amnesty Int’l USA, 133 S. Ct. 2 1138, 1148 (2013) (“respondents merely speculate and make assumptions about whether their 3 communications with their foreign contacts will be acquired under [challenged provision]”); San 4 Luis & Delta-Mendota Water Auth. v. Haugrud, 848 F.3d 1216, 1233–34 (9th Cir. 2017) (plaintiff 5 alleged a “series of contingencies in weather and water temperature” that leads to its injury). EPA 6 has accepted Plaintiffs’ Title VI complaints for investigation in the past, and Plaintiffs have concrete 7 plans to file future Title VI complaints that meet EPA’s jurisdictional requirements. See Dkt. 98 at 8 20 n.11, 22. In fact, on April 28, 2017 ABSCO filed a new Title VI Complaint with EPA concerning 9 the same facility at issue in its 2003 complaint, and EPA acknowledged receipt of that complaint the 10 same day. See Lado Decl. ¶ 3 & Ex. 2.22 11 EPA also incorrectly argues that this Court’s Order bars injunctive relief for Plaintiffs’ 12 second claim under 5 U.S.C. § 706(1) that alleges unlawful withholding of a mandatory duty 13 required for the CARE Complaint.23 Dkt. 100 at 12–13. But the Order did not concern the second 14 claim. Rather, the Order concerned a proposed seventh claim under 5 U.S.C. § 706(2) that 15 challenged how EPA acted, not EPA’s failure to act under § 706(1). See Dkt. 86 at 6–9. And the 16 claim at issue in Garcia v. McCarthy, 649 F. App’x 589 (9th Cir. 2016), on which the Court’s Order 17 chiefly relied, was also a § 706(2) claim. See Garcia v. McCarthy, No. 13-CV-03939, 2014 WL 18 187386, at *4 (N.D. Cal. Jan. 16, 2014).24 The Ninth Circuit opinion in Garcia, in fact, allows for 19 22 Under EPA’s regulations, EPA must accept, reject, or refer a complaint to another agency within 20 20 days of acknowledging receipt of that complaint. See 40 C.F.R. § 7.120(d)(1)(i). Moreover, EPA’s regulations require EPA to accept and “promptly investigate all complaints” that meet 21 jurisdictional requirements, unless the parties enter ADR. 40 C.F.R. § 7.120; see also EPA Proposed Rule, 80 Fed. Reg. at 77,287 (agency proposal, ultimately withdrawn, to modify § 7.120 to remove 22 mandate that EPA accept “all” complaints that meet jurisdictional requirements). 23 EPA also argues that the SAC should have updated the factual basis for Plaintiffs’ second claim 23 about the CARE Complaint, Dkt. 100 at 13, but EPA successfully opposed Plaintiffs’ attempt to do just that. See Dkt. 79; see also Dkt. 86, at 12; Dkt. 92. EPA is judicially estopped from deriving an 24 unfair advantage from this newfound position that is clearly inconsistent with its successful prior position. See New Hampshire v. Maine, 532 U.S. 742, 750–51 (2001). 25 24 Plaintiffs cite to the district court order in Garcia only to demonstrate to the court that the claim at 26 issue in the Ninth Circuit opinion was brought under § 706(2). As Plaintiffs explained in their Opening Brief, the Garcia district court “order w[as a] nullit[y]” and thus does not constitute 27 persuasive authority. Dkt. 98 at 35 (citing Orff v. United States, 358 F.3d 1137, 1149 (9th Cir. 2004), aff’d, 545 U.S. 596 (2005)). 28

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1 judicial review of the procedural § 706(1) claims that Plaintiffs bring here. See 649 F. App’x at 592; 2 Dkt. 98 at 34–35. Nor does Norton v. Southern Utah Wilderness Alliance (“SUWA”), 542 U.S. 55 3 (2004), prevent the Court from granting injunctive relief for the second claim. As demonstrated in 4 Plaintiffs’ opening brief, Plaintiffs seek to compel a discrete agency action—issuance of preliminary 5 findings concerning the allegations in the CARE Complaint—that is expressly allowed under SUWA 6 and 5 U.S.C. § 551(13). See SUWA, 542 U.S. at 61–65; Dkt. 98 at 14–15, 22.25 7 CONCLUSION 8 For all the reasons stated in Plaintiffs’ Opening Brief and herein, this Court should grant 9 Plaintiffs’ Motion for Summary Judgment in its entirety. 10

11 DATED: May 5, 2017 Respectfully submitted, 12 /s/ Suzanne Novak 13 SUZANNE NOVAK* 14 JONATHAN SMITH 15 Earthjustice 48 Wall St., 19th Floor 16 New York, NY 10005 [email protected] 17 [email protected] 18 Tel: (212) 845-7376

19 MARIANNE L. ENGELMAN LADO* 20 Yale Law School 127 Wall Street 21 New Haven, CT 06511 [email protected] 22 Tel: (203) 432-2184

23

25 24 EPA argues that prospective injunctive relief would lead to “programmatic review” because it may force EPA to comply with regulatory deadlines for future Title VI complaints of Sierra Club, which 25 EPA asserts do not “have anything to do with the Title VI complaints filed by Plaintiffs.” Dkt. 100 at 6 n.2. As much as EPA may wish to the contrary, Sierra Club is a Plaintiff in this litigation and 26 filed one of the underlying complaints. Moreover, Plaintiffs do not “seek . . . judicial oversight of EPA’s entire Title VI program.” Id. EPA cannot deny Plaintiffs’ warranted relief narrowly tailored 27 solely to Plaintiffs and solely for the issuance or preliminary findings by claiming “wholesale programmatic review” at every turn. See also supra Section II. 28

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1 HEATHER M. LEWIS, State Bar No. 291933 Earthjustice 2 50 California Street San Francisco, CA 94111 3 [email protected] Tel: 415-217-2000

4 * Admitted pro hac vice 5 Counsel for Plaintiffs 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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1 CERTIFICATE OF SERVICE 2 I hereby certify that on the 5th day of May, 2017, I electronically transmitted the foregoing 3 document to the Clerk of Court using the ECF System for filing. 4 5

6 /s/ Suzanne Novak SUZANNE NOVAK 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 1 of 187

1 SUZANNE NOVAK,* New York Registration No. 292574 JONATHAN SMITH, California State Bar No. 286941 2 Earthjustice 48 Wall Street, 19th Floor 3 New York, NY 10005 [email protected] 4 [email protected] Tel: 212-845-4981/Fax: 212-918-1556 5 * Admitted pro hac vice

6 MARIANNE L. ENGELMAN LADO,* New York Registration No. 2212579 Yale Law School 7 127 Wall Street New Haven, CT 06511 8 [email protected] Tel: (203) 432-2184 9 * Admitted pro hac vice

10 HEATHER M. LEWIS, State Bar No. 291933 Earthjustice 11 50 California Street San Francisco, CA 94111 12 [email protected] Tel: 415-217-2000/Fax: 415-217-2040 13 Counsel for Plaintiffs

14 IN THE UNITED STATES DISTRICT COURT 15 FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION 16 17 CALIFORNIANS FOR RENEWABLE ) 18 ENERGY, et al., ) Case No. 4:15-cv-03292-SBA ) 19 Plaintiffs, ) ) DECLARATION OF 20 v. ~ MARIANNE ENGELMAN LADO 21 UNITED STATES ENVIRONMENTAL ) PROTECTION AGENCY, et ano., ) 22 ) Defendants. ) 23 24 25 26 27 28 Declaration of Marianne Engelman Lado CARE v. EPA, Case No. 4:15-cv-03292-SBA 1 Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 2 of 187

1 I, Marianne Engelman Lado, do hereby declare as follows:

2 1. I am an attorney licensed to practice law in the State of New York and was admitted

3 by the U.S. District Court for the Northern District of California to appear pro hac vice in the above-

4 captioned matter on July 23, 2015. I am employed as a Visiting Clinical Professor of Law at Yale

5 Law School and I currently represent Plaintiffs in this action and the Title VI complaints underlying

6 this action. This Declaration is filed pursuant to Local Rule 7-5 together with Plaintiffs' Reply in

7 Support of their Motion for Summary Judgment. I have personal knowledge of the facts set forth in

8 this declaration, and, if called upon to testify as a witness, I would competently do so.

9 2. On April 28, 2017 at 2:53 PM, I emailed a letter brief to Betsy Biffl of EPA's Office

10 of General Counsel and Lilian Dorka, Acting Director ofEPA's External Civil Rights Compliance

11 Office. The letter brief presented legal arguments to rebut EPA' s anticipated closure of the 2003

12 Title VI Complaint of Plaintiff Ashurst Bar/Smith Community Organization ("2003 ABSCO

13 Complaint"). In addition, the letter brief raised a new claim on behalf of ABSCO alleging that the

14 Alabama Department of Environmental Management ("ADEM") violated Title VI in granting a

15 permit renewal on February 22, 2017 for the Stone's Throw Landfill-the same facility at issue in

16 the 2003 ABSCO Complaint. The letter brief requested that EPA consider the new claim as part of

17 its ongoing investigation or open·a new case. A true and correct copy of the letter brief is attached

18 hereto as Exhibit 1.

19 3. The same day, I received an email marked 4:44 PM from Lilian Dorka that attached

20 EPA's letter closing the investigation into the ABSCO Complaint. Ms. Dorka's cover email stated

21 that "we are in receipt of the new information, letter brief and complaint, that you submitted this

22 afternoon. We will review and evaluate this information per our Case Resolution Manual. You will

23 be receiving an Acknowledgement Letter early next week." A copy of the closure letter has already

24 been submitted to the Court by EPA. See Dkt. 101-1. A true and correct copy of Ms. Dorka's cover

25 email is attached hereto as Exhibit 2.

26 4. EPA's resolution agreement with the New Mexico Environment Department 27 regarding the CARD Complaint states, " [o ]nee the terms of this Agreement are satisfied, EPA will

28 issue a letter documenting closure of its monitoring actions in [the CARD Complaint] and closure of Declaration of Marianne Engelman Lado CARE v. EPA, Case No. 4:15-cv-03292-SBA 2 Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 3 of 187

1 the complaint as of the date of that letter." Dkt. 98-7 Ex. 3 at 13-14. As of the date of this

2 declaration, I have not received a copy of any letter from EPA closing the CARD Complaint or have 3 otherwise been notified that the CARD Complaint is closed.

4 5. Attached hereto as Exhibit 3 is a true and correct copy ofEPA's EPA's dismissal

5 letter and investigative report regarding a Title VI complaint of Plaintiff Saint Francis Prayer Center

6 not at issue in this litigation ("Select Steel").

7 6. Attached hereto as Exhibit 4 is a true and correct copy of EPA' s EPA' s dismissal

8 letter and investigative report regarding a Title VI complaint about landfill permitting in Alabama 9 not at issue in this litigation ("Yerkwood").

10

11 I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. 12

13 Dated: May 5, 2017 New Haven, Connecticut 14

15 Marianne Engelman Lado 16

17

18

19

20

21

22

23

24

25

26

27

28 Declaration of Marianne Engelman Lado CARE v. EPA, Case No. 4:15-cv-03292-SBA 3 Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 4 of 187

EXHIBIT 1 Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 5 of 187

April 25, 2017

Lilian Dorka Acting Director External Civil Rights Compliance Office Betsy Biffl Civil Rights and Finance Law OFfice Office of General Counsel U.S. Environmental Protection Agency Headquarters William Jefferson Building 1200 Pennsylvania Avenue, N.W. Mail Code 1201A Washington, D.C. 20460

Re: Title VI Civil Rights Complaint and Petition for Relief or Sanction – Alabama Department of Environmental Management Permitting of Stone’s Throw Landfill in Tallapoosa County, Alabama, EPA File No. 6R-03-R4

Dear Director Dorka and Ms. Biffl:

This letter has two purposes. First, it follows up on a January 19, 2017 phone call regarding the status of the investigation into allegations raised in the 2003 complaint filed by the Ashurst

Bar/Smith Community Organization (“ABSCO,” or the “Complainant”) against the Alabama

Department of Environmental Management (“ADEM”) under Title VI of the Civil Rights Act of

1964 (“Title VI”). Though External Civil Rights Compliance Office (“ECRCO”) staff provided information about ECRCO’s investigation during the call, the opportunity for a full discussion was limited, and by emails dated January 19th and 23rd, counsel for complainants Leah Aden and

Marianne Engelman Lado asked for more information about the investigation and time to provide additional evidence. We have not received additional information, and we thus write without the benefit of greater clarity on the reasoning outlined during that call. In this letter, we aim to clarify two issues that arose during the January 19, 2017, including ECRCO’s interpretation of ABSCO’s disparate impact claim and a factual assumption made in favor of ADEM. We also raise a new Title

VI claim relating to the February 10, 2017 permit renewal of Stone’s Throw Landfill.

Based on our understanding, ECRCO’s analysis of ABSCO’s disparate impact claim seemed based on both a mistaken legal belief and an unfounded factual assumption. As to the legal question, there seemed to be a belief that a finding of discrimination depended on the existence of Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 6 of 187 an independent obligation under state law requiring ADEM to evaluate whether the permit sought by Stone’s Throw Landfill had a disparate impact. However, ADEM’s obligation to evaluate whether the permit had an unjustified disparate impact springs from Title VI of the Civil Rights Act of 1964 and EPA’s implementing regulations, 40 C.F.R. Part 7. Of course, procedural irregularities such as the failure to conduct an analysis required by state law may be evidence of discrimination.

As to the factual assumption, ECRCO seems to be making an assumption that the Tallapoosa

County Commission (“TCC”) must have evaluated racial demographics in considering the relevant

Solid Waste Management Plan (SWMP) because it was legally obliged to do so. Clearly, an investigation should not assume compliance with the law. Ultimately, though, ABSCO claims that the permit had an unjustified disparate impact on the basis of race, and Complainants ask EPA to make a finding of discrimination or continue its investigation and—to that end—provide ABSCO with an opportunity to collect and submit further evidence.

Some of these questions are issues of fact: did the Tallappoosa County Commission in fact analyze whether granting or renewing permits to Stone’s Throw Landfill had a disparate impact on the basis of race? Is there any evidence for the assumption that ECRCO seems to be making?

Since our January conversation we have been trying to obtain County Commission Records and have submitted public disclosure requests to make sure complainants – and EPA – have the full record. In the interests of time, however, we are submitting this letter, and will supplement the record once we receive additional factual information.

Second, this letter raises a new Title VI claim against ADEM. On February 22, 2017,

ADEM granted an application to renew the Landfill’s permit until 2022—once again, without conducting a demographic analysis or otherwise considering whether the permit or its terms have an unjustified disproportionate impact on the basis of race in violation of the law. ADEM’s failure and disregard for the mandates of Title VI and EPA’s regulations is all the more egregious given that

ADEM is currently the subject of a civil rights complaint because of the adverse disparate impacts of this very facility, and that ABSCO raised concerns about civil rights compliance during the

2 Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 7 of 187 permitting process. ABSCO filed comments on November 17, 2017, which stated, among other things:

ABSCO maintains that ADEM’s grant of [the] current application would violate civil rights laws, regulations, and guidance. Indeed, the Tallapoosa County Commission’s siting of the Landfill in the Ashurst Bar/Smith community and the various permits granted to the Landfill by ADEM have had and will continue to have an adverse, disproportionate, and unjustified impact on the 98% Black population that lives in closest proximity to the Landfill.

Attached please find ABSCO’s comments, attached as Exhibit A. We urge EPA to find that

ADEM’s decision to permit the Stone’s Throw Landfill in the heart of the historic African-

American community of Ashurst Bar/Smith, without adequate protections for the health and well- being of the community, will have an unjustified disparate impact on African Americans in violation of Title VI of the Civil Rights Act of 1964 and EPA’s implementing regulations, 40 CFR

Part 7.

I. ABSCO’s Claim Arises Under Title VI Federal Law Which Prohibits Discrimination, Not State Law Requirements

A. The Complaint alleges that ADEM imposed racially disparate harms on the Ashurst Bar/Smith community.

ABSCO’s Complaint alleges that ADEM administered its solid waste permitting program in a manner that failed to prevent, and imposed, a wide range of racially disparate harms on the residents of the Ashurst Bar/Smith community. First, the Complaint alleges that by failing to consider socioeconomic factors before issuing a permit renewal approval for the Landfill, ADEM engaged in a method of administering its program that had a discriminatory effect; and second, that the operation of the permit under the permit granted by ADEM has a disproportionate and adverse impact on the basis of race.

EPA agreed to investigate these allegations in a September 7, 2005 letter accepting the

Complaint for investigation. EPA combined the two prongs of ABSCO’s disparate impact claim,

3 Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 8 of 187 and articulated the allegations thus: “ADEM’s failure to require the Tallapoosa County Commission to properly use the siting factors in the EPA June 2003 Title VI Investigative Report has created a discriminatory effect for the African-American citizens since most of Tallapoosa County’s municipal solid waste landfills are located in their communities.” EPA agreed to investigate both

ADEM’s failure to require the Tallapoosa County Commission (“TCC”) to use siting factors that consider social and economic impacts (as EPA recommended in EPA’s June 2003 Title VI

Investigative Report (“Yerkwood Report)”); and the discriminatory effect that failure imposed on

African-Americans in the Ashurst Bar/Smith community.

In the “Yerkwood Report”, EPA presciently stated that “the potential failure to consider safety or socio-economic impacts could lead to ADEM-permitted landfills that have an adverse disparate impact” on groups protected by Title VI. Yerkwood Report at 97. Indeed; this is exactly what happened with the permitting of the Landfill in the Ashurst Bar/Smith community.

As a starting point, the Complaint raises two interlocking claims of racially disproportionate harms that rest on Title VI and EPA’s implementing regulations, and stem from ADEM’s failure to require TCC to consider SES factors:

First, the Complaint alleged that ADEM administered its solid waste management permitting program for the residents of Ashurst Bar/Smith in a manner that failed to prevent—and increased the risk of—racially disparate harms. This included ADEM’s failure to provide an adequate opportunity for comment, id. at 5; ADEM’s failure to ensure that TCC considered statutorily required SES factors in approving the Permit, id. ¶ 34; and ADEM’s failure to

“undertake additional and independent analyses of such impacts during the State permitting phase for a facility if necessary,” id. (quoting Yerkwood Report at 94).

Second, the Complaint alleged a broad range of racially disproportionate harms caused by the landfill, including water runoff, Letter from unnamed individual to redacted recipient ¶ 8 (Sept.

3, 2003) (attached hereto as Exhibit 2); heavy truck traffic and unsafe road conditions, id. at ¶¶ 10-

14; proliferation of insects, rodents, and wild dogs that may serve as carriers of disease, id. at ¶ 16;

4 Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 9 of 187 contamination of wetlands, natural springs, and groundwater, id. at ¶¶ 17, 25; negative effects on gardens and livestock, id. at ¶ 18; high methane gas emissions, id. at ¶ 19; and displacement of landowners, id. at ¶ 28. The Complaint cited census data to demonstrate that these harms have a disparate effect on African-Americans, noting that the community that surrounds the Landfill was

98% Black and that the communities serviced by the Landfill were 74% white. The Complaint questioned ADEM’s racially disproportionate imposition of the burdens of waste disposal on the

Ashurst Bar/Smith community:

Tallapoosa County is a majority white county why is the African-American population bearing the burden for waste disposal in this county? The continued failure of the Commission to comply with Title VI in preventing a disparate impact on majority African-American communities (protected communities by EPA Part 7 regulation) only concerns us more that ADEM . . . are not performing its duties . . .

Id. at ¶ 32.

In sum, the Complaint contains claims under Title VI that ADEM failed to administer its solid waste management program in a manner that prevents racially discriminatory effects, and the occurrence of such racially discriminatory impacts.

B. Title VI prohibits methods of administration that fail to prevent racially disparate harms and state actions that cause racially disparate harms.

Title VI and EPA’s implementing regulations prohibit ADEM from administering its programs and siting facilities in a manner that has unjustified racially disproportionate adverse impacts. Title VI provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. §

2000d. Section 602 of Title VI authorizes each federal agency to promulgate implementing regulations or issue generalized administrative orders that specify how the agency will determine whether recipients of federal funds are engaging in racially discriminatory practices prohibited by

Title VI. Id. at § 2000d-1. Pursuant to these regulations, EPA promulgated implementing regulations for Title VI:

5 Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 10 of 187

A recipient shall not use criteria or methods of administering its program or activity which have the effect of subjecting individuals to discrimination because of their race, color, national origin, or sex, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program or activity with respect to individuals of a particular race, color, national origin, or sex.

40 C.F.R. § 7.35(b) (2016) (emphasis added). EPA’s implementing regulations impose a number of requirements on recipients of EPA funds, including, first, recipients must not impose racially disproportionate harms, and second, recipients must not “defeat[] or substantially impair[]” the objectives of such programs or activities in a racially disproportionate manner.

Recent 2017 EPA guidance re-emphasized the prohibition against disparate impact. As

EPA’s own External Civil Rights Compliance Office Complaince Toolkit states, “EPA's regulations clearly state that prohibitions against discriminatory conduct, whether intentional or through facially neutral means that have a disparate impact, apply to a recipient, whether committed directly or through contractual or other arrangements.” U.S. EPA's External Civil Rights Compliance Office

Compliance Toolkit ("Toolkit"). EPA’s implementing regulations unequivocally apply to ADEM, a recipient of federal EPA funding as defined in 40 C.F.R. § 7.35(c). See also S. Camden Citizens in

Action v. N.J. Dep’t of Envtl. Mgmt., 145 F.Supp.2d 446, 476 (D.N.J. 2001). Therefore, ADEM’s administration of its solid waste management program should be evaluated according to the racially disproportionate harms imposed on the residents of Ashurst Bar/Smith.

C. ADEM Has Title VI Obligations Regardless of Alabama State Law.

Compliance with state law requirements is not a defense to a Title VI complaint. Title VI imposes obligations under federal law and Title VI and EPA’s implementing regulations clearly contemplate that even if ADEM’s permitting process for the Landfill were compliant with Alabama law, EPA can still find ADEM in violation of Title VI. As discussed in Section I.B, the statutory language of Title VI prohibits discrimination as defined by federal law, and nothing in Title VI requires the Complainant to demonstrate a violation of state law requirements, such as those enumerated in the Solid Waste Disposal Act (“SWDA”) and its implementing regulations, to prove a

Title VI violation. Nothing in Title VI allows ADEM to invoke its compliance with state law

6 Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 11 of 187 requirements as a defense to a Title VI complaint. In fact, EPA’s implementing regulations for Title

VI, reproduced in Section I.B, clearly prohibit state actions that are racially discriminatory even if they were otherwise consistent with state law “criteria or methods of administ[ration]”. 40 C.F.R. §

7.35(b) (2016).

EPA’s focus on state procedures—namely, ADEM and TCC’s establishment of state and local SWDAs in the early 1990s—undermines Title VI in two ways. First, the permit modification challenged in the Complaint took place in 2003, about a decade after TCC and ADEM had established their SWMPs. Allowing ADEM to defend itself against a Title VI claim by pointing to a causally and temporally distant SWMP process ignores the essence of the Complaint: the unbearable adverse effects of the Landfill that the Ashurst Bar/Smith community endures every day.

Second, EPA’s interpretation is inconsistent with the “general . . . application and national . .

. scope” of the 1964 Civil Rights Act. H.R. Rep. No. 88-914, at 18 (1963). This framework was established for a remedial purpose, because “it ha[d] become increasingly clear that progress has been too slow and that national legislation is required to meet a national need.” Id. As the United

States Commission on Civil Rights noted in a 1963 report that helped drive contemporary legislative efforts, many states were complicit in discrimination across a wide array of government functions including education, employment, housing, the administration of justice, and the provision of health facilities and services. See U.S. Comm’n on Civil Rights, Civil Rights ’93: 1963

Report of the United States Commission on Civil Rights (1963). Against this backdrop, Title VI was designed to prohibit such discrimination “wherever Federal funds go to a State agency which engages in racial discrimination” and “insure the uniformity and permanence to the nondiscrimination policy.” 110 Cong. Rec. 6544 (statement of Sen. Humphrey). Simply, Title VI applies uniformly to discriminatory actions throughout the United States, regardless of whether states approve such actions.

7 Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 12 of 187

For these reasons, we urge EPA to center its investigation on the discriminatory harms alleged in the Complaint and ADEM’s abject failure to administer its solid waste permitting program in a manner that prevents or mitigates such harms.

D. ADEM has plenary authority over waste permitting in Alabama, vesting ADEM with the authority to secure Title VI compliance in Alabama.

ADEM has consistently relied on Alabama state law to disclaim authority over the

Tallapoosa County Commission’s (TCC) siting decisions relating to landfill permitting and absolve itself of its Title VI obligations. In particular, ADEM has consistently averred that the agency has no authority to consider socioeconomic factors, including disparate racial impacts, when making permit decisions. For example, in its response to comments for the February 22, 2017 permit renewal, ADEM stated that “it does not site landfills, the local host government approves siting . . . as did the Tallapoosa County Commission . . . . ADEM . . . only permits the operation of landfills in the State.” Ala. Dep’t of Envtl. Mgmt., Summation of Comments Received and Response-to-

Comments: Proposed Stone’s Throw Landfill Renewal Permit 62-11, at 6 (Feb. 10, 2017). ADEM also stated, “the governing body of a county or municipality has the responsibility and authority to assure the proper management of solid wastes generated in its jurisdiction in accordance with its

Solid Waste Management Plan.” Id. at 12.

It appears that ADEM’s statements may be an attempt to claim that TCC is the only state actor with Title VI obligations relating to the Landfill. However, ADEM’s limited view of its authority has no reasonable basis in Alabama law. ADEM holds plenary authority over an integrated solid waste disposal planning and permitting program that regulates nearly every aspect of solid waste disposal in Alabama. The SWDA makes clear that Alabama does not bifurcate duties relating to solid waste management between the state and local governing bodies. Rather, SWDA expresses a “legislative purpose” of “comprehensive local, regional, and state planning,” Ala. Code

§ 22-27-41, and a “legislative intent” “to develop an integrated system” in which the state and local

8 Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 13 of 187 governing bodies work together to manage waste, id. § 22-27-42. Within this framework, ADEM holds broad supervisory powers:

First, ADEM has “primary regulatory authority” over solid waste management in Alabama

as “necessary to enforce the requirement and purposes of [SWDA].” Id. § 22-27-9; see also

id. § 22-27-7 (conferring regulatory authority upon ADEM); id. § 22-27-11 (authorizing

ADEM to issue administrative orders and initiate civil actions to enforce the SWDA and its

regulations); id. § 22-27-12(1) (conferring regulatory authority upon ADEM).

Second, ADEM may deny permit applications based on noncompliance with SWDA, its

implementing regulations, or federal law. Id. § 22-27-12(2) (“The department may condition

the issuance of a permit for any solid waste management or materials recovery facility upon

the facility being consistent with applicable rules as are necessary to carry out the intent of

this article and the department's responsibilities under this article. Permits shall be issued for

a period of time based on design life of the facility and may include renewal periods as

determined by rules and not inconsistent with federal law.”); see also id. § 22-27-3(a)

(requiring county commissions to “make available . . . disposal facilities for solid wastes in

a manner acceptable to the department”); id. § 22-27-5(b) (clarifying that approval of

ADEM is “in addition to other approvals which are necessary,” such as approvals by county

commissions).

Third, local governing bodies like TCC are required to consider “[t]he social and economic

impacts of a proposed facility on the affected community.” Id. 22-27-48(a). As ADEM has

the authority to deny permit applications based on noncompliance with the SWDA, ADEM

may deny permit applications for failing to consider demographic factors including disparate

impact.

Fourth, ADEM has the authority to revoke permits for “good cause.” This “good cause”

includes disparate impacts caused by facilities such as the Landfill. Id. § 22-27-5(c) (“Such

permit shall be based upon performance and may be revoked for cause, including failure to

9 Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 14 of 187

perform under the provisions of this article and regulations adopted under authority of this

article.”).

Moreover, this interpretation of ADEM’s authority is consistent with the EPA’s interpretation presented in the Yerkwood Report. Yerkwood Report at 94-96. Given ADEM’s broad powers and “primary regulatory authority” over solid waste permitting in Alabama, ADEM cannot shirk its Title VI obligations by claiming that it has insufficient authority over a permit that is issued in its name.

E. The Yerkwood Report supports the claims in the Complaint.

In the January 29 phone call, EPA appeared to place weight on the non-binding nature of the

Agency’s recommendations in the Yerkwood Report. Although the Yerkwood Report was non- binding, the Complainant’s claims do not depend on whether the Yerkwood Report recommendations are binding. As we explained in Sections 1.A and 1.B, the Complaint rests on two

Title VI claims that are independent of the Yerkwood Report.

Furthermore, EPA’s findings in the Yerkwood Report do not estop the claims in the

Complaint. EPA did not find a disparate racial impact in the Yerkwood Report partly because two of the Alabama landfills investigated in the Yerkwood Report—Florence Landfill in Lauderdale

County and Pineville Landfill in Walker County—were not located in communities with a disproportionate number of of Black residents in comparison to the reference group. In contrast, tthe

Ashurst Bar/Smith community is approximately 98% African-American, presenting a very different case for EPA.

In fact, in the Yerkwood Report, EPA examined ADEM’s permitting process for landfills and expressed grave concerns about the absence of civil rights protections. EPA notably stated that

“the potential failure to consider safety or socio-economic impacts could lead to ADEM-permitted landfills that have an adverse disparate impact” on groups protected by Title VI. Yerkwood Report at 97. It turns out that EPA was indeed correct: the harms suffered by the residents of Ashurst

Bar/Smith are proof positive that EPA’s concerns were well-founded.

10 Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 15 of 187

II. EPA Should Continue Its Investigation To Determine Whether a Disparate Impact Analysis Was Conducted for the Landfill, and To Assess the On-the-Ground Harms Imposed on the Ashurst Bar/Smith Community.

EPA seems to be making two unwarranted factual assumptions in favor of ADEM and TCC.

It appears that, with no evidence, EPA has inferred that ADEM and TCC evaluated demographic factors under the theory that as governmental agencies, ADEM and TCC would act in ways consistent with state law. Both assumptions are factually unsubstantiated. In addition, assuming good-faith behavior by ADEM and TCC in an investigation of an allegation of discrimination subverts the remedial and protective purposes of Title VI. Due to the lack of factual clarity, we ask

EPA to continue its investigation into the facts and offer the Complainant with an opportunity to collect and submit further evidence.

EPA assumes that since Alabama law requires local Solid Waste Management Plans

(“SWMPs”) to account for socioeconomic (“SES”) factors, Ala. Code § 22-27-45(a), TCC’s local

SWMP for Tallapoosa County must have accounted for SES factors, including the possibility that

Black residents of the Ashurst Bar/Smith community would bear disproportionate racial harms.

Moreover, EPA also seems to assume that if the local SWMP for Tallapoosa County had accounted for SES factors, the Landfill’s host agreement and permits must have also taken into accounted those SES factors and racially disparate harms.

EPA seems to have treated both assumptions as reasonable inferences based on the requirements of Alabama’s solid waste management laws and regulations. We disagree with this investigative approach. On information and belief, ADEM has steadfastly refused to conduct demographic analyses of MSW facilities in Alabama including the Landfill in Tallassee. Moreover, to our knowledge, there is no evidence that the TCC has conducted such an analysis, neither in the process of creating its local SWMP or while permitting the Landfill.1

EPA’s investigation should be based on evidence, not assumptions in favor of ADEM. As discussed in Section I.C, Title VI was created to protect against both intentional and unintentional

1 Complainants’ ongoing investigation of the county SWMP and permit process has found no evidence that TCC conducted such analyses. 11 Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 16 of 187 state discrimination on the basis of race and ethnicity, and the history of the race discrimination is particularly significant for Black communities such as Ashurst Bar/Smith, which was founded by newly freed slaves and whose members have historically experienced intense discrimination by state authorities. Such instances of discrimination often involve asymmetries in information between the victims of discrimination and state decision-makers. Inferring compliance with Title VI from an absence of information tilts the scales in a way that is neither authorized by the history of enforcement of the Civil Rights Act and its regulations across agencies nor consistent with its basic civil rights principles.

III. ADEM violated Title VI by renewing the Landfill’s permit on February 10, 2017.

In continued violation of Title VI, ADEM renewed the Solid Waste Disposal Facility Permit for the Landfill on February 10, 2017. Before issuing the permit renewal, ADEM did not, to our knowledge, address any of the Title VI allegations ABSCO formerly levied against it. Instead,

ADEM’s failure to conduct a disproportionality assessment to analyze the social, economic, and health consequences of the Landfill on the surrounding predominately Black Ashurst Bar/Smith community again resulted in a disparate impact on African-Americans. Complainants respectfully request that EPA consider this most recent Title VI violation in its ongoing investigation or open a new investigation in response to this complaint.

To the extent that EPA treats this request as an independent complaint, the complaint meets all jurisdictional requirements pursuant to EPA’s Title VI regulations. First, the complaint is in writing. Second, the complaint alleges a cognizable claim; that is, ADEM’s method of administration has an adverse disproportionate impact, and further, the permit renewal of the

Landfill results in a disparate impact on African-Americans in the Ashurst Bar/Smith community in violation of Title VI and EPA regulations. To the extent that ADEM contends that it does not make siting decisions, but rather, Tallapoosa County Commission is responsible, section 1.D and EPA’s own Yerkwood Report make clear that ADEM nonetheless is responsible for ensuring compliance

12 Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 17 of 187 with Title VI. Third, we are filing within 180 days of the February 10 permit approval. Fourth, we are filing the complaint against ADEM, which is a recipient of federal funds.

ADEM continues to openly defy its obligation to abide by Title VI and EPA regulations. In response to public comments related to civil rights, ADEM completely ignored the specific claims of disparate impact. Instead, ADEM included a list of programs that the agency deems relevant, ignoring the requirement that ADEM’s permit of the Stone’s Throw Landfill also be consistent with

Title VI and EPA regulations. Summation of Comments Received and Response-to-Comments

Proposed Stone’s Throw Landfill Renewal Permit 62-11 The sufficiency of Alabama’s environmental justice and Title VI policies is subject for separate briefing, but even if they met general requirements, they would not shield ADEM from accountability under Title VI for discriminatory actions. ADEM’s response to the Comments submitted by the Complainant were dismissive and non-specific. In addition, however, despite the outstanding civil rights complaint regarding the previous permit granted to the facility by ADEM and the community’s continuing concerns about compliance with Title VI, ADEM extended a set of variances for the Landfill that exempt the Landfill from certain environmental requirements. ADEM determined that granting these variances would not “unreasonably create environmental pollution.” Summation of Comments

Received and Response-to-Comments Proposed Stone’s Throw Landfill Renewal Permit 62-11.

Given the adverse impacts the primarily Black Ashurst Bar/Smith community is facing, these variances are an additional slap in the face. ADEM’s continued abdication of its Title VI obligations further the already-alleged discrimination perpetrated against Black residents of the Ashurst/Smith

Bar community.

Once again, ADEM failed to conduct any analysis of whether the permit would violate Title

VI and its regulations, and its action granting a permit to Stone’s Throw Landfill without adequate protection for the health, welfare and environment of the community will have an unjustified

13 Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 18 of 187 disproportionate impact on the basis of race. ADEM’s methods of administration and permitting thus violate Title VI and its regulations.

Conclusion: EPA Should Make a Finding of Discrimination

The Ashurst Bar/Smith community has suffered racially disproportionate harms from a

Landfill that operates under an ADEM permit. This permit was granted with a deficient method of administration that subjects Black residents of the Ashurst Bar/Smith community to racially disparate harms. These allegations are supported by data about the siting of landfills in Tallapoosa

County, numerous declarations from community members, and ADEM and TCC’s failure to ever conduct even a basic disparate impact assessment for the Landfill. On these bases, we respectfully ask EPA to make a finding of discrimination. If EPA believes that there are gaps in the administrative record that preclude a conclusive finding, we respectfully ask EPA to continue its investigation and provide ABSCO with a meaningful opportunity to present further evidence so that

EPA can reach a fully informed decision.

Sincerely,

Marianne Engelman Lado Visiting Clinical Professor of Law Yume Hoshijima Ama Francis Student Clinicians Environmental Justice Clinic Yale Law School 127 Wall Street New Haven, CT 06511 (203) 432-2184 [email protected] [email protected] [email protected]

Leah Aden Senior Counsel NAACP Legal Defense & Educational Fund, Inc. 1444 I Street, NW

14 Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 19 of 187

Washington, DC 20005 (202) 682-1300

Suzanne Novak Jonathan Smith Earthjustice 48 Wall Street, 19th Floor New York, NY 10005 [email protected] [email protected] 212-845-4981

On behalf of the Ashurst Bar/Smith Community Organization

15 Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 20 of 187

EXHIBIT 2 Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 21 of 187 Thursday, May 4, 2017 at 5:54:46 PM Eastern Daylight Time

Subject: Closure of Administrave Complaint No. 06R-03-R4, Alabama Department of Environmental Management (Tallassee Waste Disposal Center, Inc.) Date: Friday, April 28, 2017 at 4:44:31 PM Eastern Daylight Time From: Dorka, Lilian To: Leah Aden, Marianne Engelman-Lado CC: Temple, Kurt, Stein, Jonathan, Covington, Jeryl, Goerke, Ariadne, Biffl, Betsy, Redden, Kenneth, Tellis, Vickie, Tommelleo, Nancy, HALIM-CHESTNUT, NAIMA, Lapierre, Kenneth Aachments: image001.gif, 2017.04.28 Leer to Engelman Lado and Aden (Complainant) re Closure of Admin Complaint 06R-03-R4.pdf

Hello Marianne and Leah,

As we stated this morning, the above-referenced case is closed as of today. Attached please find a copy of the Closure Letter which has also been mailed to each of you via certified mail. We will contact you early next week through Betsy to set up a time to discuss any questions you might have regarding this Closure Letter.

Also, we are in receipt of the new information, letter brief and complaint, that you submitted this afternoon. We will review and evaluate this information per our Case Resolution Manual. You will be receiving an Acknowledgement Letter early next week.

Thanks very much!

Lilian

Lilian Sotolongo Dorka Director, External Civil Rights Compliance Office EPA, Office of General Counsel 202-564-9649 WJC-N Room 2450

From: Biffl, Betsy Sent: Friday, April 28, 2017 11:15 AM To: Leah Aden ; Marianne Engelman-Lado Cc: Dorka, Lilian ; Temple, Kurt ; Stein, Jonathan ; Covington, Jeryl ; Goerke, Ariadne Subject: Tallassee

Marianne and Leah,

I’m reaching out to let you know that ECRCO will be issuing a closure leer on the Tallassee complaint today. You will have the leer by COB. If you want to talk briefly today, Lilian and I are available this aernoon. If you would like to talk aer you receive the leer and have a chance to coordinate with your clients, we can set up a call for next week.

Best regards,

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Betsy Bif Civil Rights and Finance Law Ofce Ofce of General Counsel (MC 2399A) U.S. Environmental Protection Agency 1200 Pennsylvania Ave, NW Washington, DC 20460 (202) 564-3389

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EXHIBIT 3 Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 24 of 187

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460

OCT 30 1998

OFFICE OF CIVTL RIGHTS

RETURN RECEIPT BEOUESTED

Father Phil Schmitter, Co-Director Sister Joanne Chiaverini, Co-Director St. Francis Prayer Center G-2381 East Carpenter Road Flint, Michigan 48505

Russell Harding, Director Michigan Department of Environmental Quality Hollister Building P.O. Box 30473 Lansing, Michigan 48909-7973

Re: EPA File No. 5R-98-R5 (Select Steel Complaint)

Dear Fr. Schmitter, Sr. Chiaverini, and Mr. Harding,

On August 17, 1998, the Office of Civil Rights (OCR) accepted for investigation an administrative complaint filed on June 9, 1998 by Father Phil Schmitter and Sister Joanne Chiaverini pursuant to Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000d et seq. (Title VI), and EPA's implementing regulations, 40 C.F.R. Part 7. The complaint alleges that the Michigan Depanment of Environmental Quality's (MDEQ) issuance of a Clean Air Act (CAA) Prevention of Significant Deterioration (PSD) permit to the Select Steel Corporation of America for a proposed steel recycling mini-mill in Genesee Township would lead to a discriminatory impact on minority residents and that the MDEQ permitting process was conducted in a discriminatory manner. In addition to the allegations contained in the complaint filed with OCR, the Complainants also submitted written information regarding alleged discrimination related to the permitting of the proposed Select Steel facility in an April 22, 1998 letter from Fr. Schmitter and Sr. Chiaverini to the Sugar Law Center, an April 29, 1998 letter to David Ullrich, Acting Regional Administrator for Region V, and a June 9, 1998 petition to EPA's Environmental Appeals Board (EAB).

Recycled/Recyclable •Printed with Vegetable Oil Based Inks on 100% Recycled Paper (20% Postconsumer) Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 25 of 187

Title VI prohibits discrimination based on race, color, or national origin under programs or activities of recipients of federal financial assistance. EPA has adopted Title VI implementing regulations that prohibit unjustified discriminatory effects which occur under federally-assisted programs or activities. 40 C.F.R. Part 7. Discrimination can result from policies and practices that are neutral on their face, but have the effect of discriminating. Facially neutral policies or practices that result in discriminatory effects violate EPA' s Title VI regulations unless they are justified and there are no less discriminatory alternatives.

l\1DEQ is a recipient of EPA financial assistance; therefore, l\1DEQ is subject to the requirements of Title VI and EPA' s implementing regulations. Section 7. 3 5(b) prohibits recipients from administering their programs in a manner that would have the effect of subjecting individuals to discrimination because of their race, color, or national origin. Section 7.30 of EPA' s Title VI regulations provides that no person may be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving EPA assistance on the basis of race, color, or national origin.

The June 9, 1998 Title VI complaint filed with OCR refers generally to the "unfair and disparate burden of pollution [which] will fall on a group of minority .. . people." However, in other information provided to EPA in writing and during interviews, the Complainants also raised specific concerns about the facility's potential emissions of volatile organic compounds (VOCs ), lead, air toxics, and dioxin.

As previously mentioned, OCR accepted the complaint for investigation in August 1998, and has completed its review of the allegations raised. In analyzing the Complainants' concerns regarding air quality and public health effects, EPA has determined that this facility would not pose an "adverse" effect on the community. In this case, EPA did not base its finding on whether the effects would be disparate since the effects did not rise to the level of "adverse." After reviewing all the facts in this case, OCR has found that neither the Complainants' concerns regarding air quality nor those regarding the opportunity for public participation rise to the level of a discriminatory effect within the meaning of Title VI and EPA's implementing regulations. Therefore, OCR dismisses Complainants' allegations in this case. The basis for this determination is explained below.

The Investigation

EPA investigated this matter consistent with its Interim Guidance for Investigating Title VJ Administrative Complaints Challenging Permits (Interim Guidance). EPA has attempted to conduct this investigation expeditiously, taking into account the need for certainty in the regulatory process associated with permitting new facilities, while at the same time seriously reviewing the concerns expressed by the Complainants.

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EPA's ability to expeditiously render this decision was facilitated significantly by the record of decision developed by the State in this case. In addition, analyses of the kind credibly undertaken by the State to address concerns raised during the permitting process not only substantially enhance the probability that State-issued permits will withstand scrutiny under Title VI, but also enables expeditious processing by EPA of administrative complaints filed under Title VI. Such analyses early in the permitting process may also facilitate the State's early identification and development of possible solutions to address potential Title VI concerns.

Alleged Discriminatory Effect Resulting from Air Quality Impacts

As outlined in EPA's Interim Guidance, EPA follows five basic steps in its analysis of allegations of discriminatory effects from a permit decision. "The first step is to identify the population affected by the permit that triggered the complaint. The affected population is that which suffers the adverse impacts of the permitted activity." Interim Guidance at 8. If there is no adverse effect from the permitted activity, there can be no finding of a discriminatory effect which would violate Title VI and EPA's implementing regulations. In order to address the allegation that MDEQ's issuance of a PSD permit for the proposed Select Steel facility would result in a discriminatory effect. EPA first considered the potential adverse effect from the permitted facility using a number of analytical tools consistent with EPA' s Interim Guidance. It is important to note that EPA believes that the evaluations of adverse, disparate impact allegations should be based upon the facts and totality of the circumstances each case presents. voes

To evaluate the impact of VOCs, EPA examined the permit application submitted by Select Steel and a variety of analyses conducted by MDEQ. With that information, EPA considered voes in their role both as precursors to ozone and, for some voes, as toxic air pollutants (see discussion below concerning air toxics). In examining VOCs as ozone precursors, EPA studied the additional contribution of VOCs from the proposed Select Steel facility and has determined those emissions will not affect the area's compliance with the national ambient air quality standards (NAAQS) for ozone.

The NAAQS for ozone is a health-based standard which has been set at a level that is presumptively sufficient to protect public health and allows for an adequate margin of safety for the population within the area; therefore, there is no affected population which suffers "adverse" impacts within the meaning of Title VI resulting from the incremental VOC emissions from the proposed Select Steel facility. Therefore, EPA finds no violation of Title VI or EPA' s implementing regulations associated with voes as ozone precursors.

The Complainants also have alleged that failure to require immediate VOC monitoring for the proposed Select Steel facility will result in a discriminatory effect. Select Steel's permit condition regarding VOC monitoring allows Select Steel one year from plant start-up to

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implement a continuous emissions monitoring system ("CEMS") for VOCs. MDEQ is not required to prescribe immediate VOC monitoring because EPA's regulations allow the permitting authority to impose post-construction monitoring as it "determines is necessary." 40 C.F.R. § 52.2l(m)(2). As discussed above, there would be no affected population that suffers "adverse" impacts within the meaning of Title VI resulting from the incremental VOC emissions from the proposed Select Steel facility. For this reason, EPA finds that, with regard to VOC monitoring, MDEQ did not violate Title VI or EPA's implementing regulations.

Lead

Similarly, to evaluate potential lead emissions from the facility, EPA studied the additional contribution of airborne lead emissions from the proposed Select Steel facility and has determined those emissions will not affect the area's compliance with the NAAQS for lead. As with ozone, there is a NAAQS for lead that has been set at a level presumptively sufficient to protect public health and allows for an adequate margin of safety for the population within the attainment area. Therefore, there would be no affected population which suffers "adverse" impacts within the meaning of Title VI resulting from the incremental lead emissions from the proposed Select Steel facility. Accordingly, EPA finds no violation of Title VI or EPA's implementing regulations.

In this case, MDEQ also appropriately considered information concerning the effect of the proposed facility's lead emissions on blood lead levels in children in response to community concerns. EPA reviewed this information along with other available data on the incidence and likelihood of elevated blood lead levels in Genesee County, particularly in the vicinity of the site of the proposed facility. EPA considered this additional information in response to the Complainants' concerns that the existing incidence of elevated blood lead levels in children in the vicinity of the proposed facility were already high. Overall, EPA found no clear evidence of a prevalence of pre-existing lead levels of concern in the area most likely to be affected by emissions from the proposed facility. Furthermore, EPA concurs with the State's finding that lead emissions from the proposed Select Steel facility would have at most a de minimis incremental effect on local mean blood lead levels and the incidence of elevated levels.

Air Toxics

For airborne toxics, EPA conducted its review based on information presented in the permit application, existing TRI data, and MDEQ documents. EPA reviewed MDEQ's analysis of Select Steel's potential air toxic emissions for evidence of adverse impacts based on whether resulting airborne concentrations exceeded thresholds of concern under State air toxics regulations. EPA also considered the potential Select Steel air toxic emissions together with air toxic emissions from Toxics Release Inventory (TRI) facilities, the Genesee Power Station, and other major sources in the surrounding area. EPA' s review of air toxic emissions from both the proposed site alone, as well as in combination with other sources, found no "adverse" impact in

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the immediate vicinity of the proposed facility. Therefore, EPA finds no violation of Title VI or EPA' s implementing regulations.

Dioxin

The information gathered from the investigation concerning the monitoring of dioxin emissions is consistent with EAB' s analysis of the issue. 1 No performance specifications for continuous emissions monitoring systems have been promulgated by EPA to monitor dioxins. Without a proven monitor, MDEQ was unable to impose a monitoring requirement on the source. Therefore, EPA finds no discriminatory effect associated with MDEQ's decision not to include monitoring requirements for dioxin and that MDEQ did not violate Title VI or EPA's implementing regulations.

Alleged Discriminatory Public Participation Process

To assess the allegations of discrimination concerning public process, EPA evaluated the information from interviews with Complainants and MDEQ, and from documents gathered from the parties. The first allegation was that the permit was "hastily sped through" by MDEQ to avoid permitting requirements (i.e. , conduct a risk assessment; provide opportunity for public comment on risk assessment; provide meaningful opportunity for all affected parties to participate in the permit process) imposed by a State trial court that are under appeal. The five months between receipt of the complete permit application and permit approval is actually slower than the average time of one and a half months for the past twenty-six PSD permits approved by MDEQ. EPA's review found that the public participation process for the permit was not compromised by the pace of the permitting process. MDEQ satisfied EPA's regulatory requirements concerning the issuance of PSD permits.

The Complainants also alleged that the relationship between an employee of Select Steel's consultant who is a former MDEQ employee and MDEQ led to improprieties in the permitting process. Neither the documents nor the interviews revealed any improper or unlawful actions by MDEQ and Select Steel's consultants during the permitting of Select Steel. Without any such evidence, EPA cannot find any impropriety existed that contributed to an alleged discriminatory process.

1 In the EAB' s analysis of Complainants' PSD appeal concerning monitoring of dioxin, the Board similarly concluded that "MDEQ's decision is not clearly erroneous." In re Select Steel Corporation ofAmerica , Docket No. PSD 98-21 , at 5 (EAB Sept. 10, 1998). That holding was based, in part, on the fact that the Complainants made "no argument and points out no data to refute MDEQ's judgment." Id.

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The Complainants alleged that the manner of publication of the notice of the permit hearing also contributed to the alleged discriminatory process. The Complainants allege that publication in newspapers was insufficient to inform the predominantly minority community because few community members have access to newspapers -- something the Complainants allege was brought to MDEQ's attention during the permitting process for another facility in Genesee Township. EPA's regulations for PSD permitting require that notice of a public hearing must be published in a weekly or daily newspaper within the affected area. 40 C.F.R. § 124. IO(c)(2)(i). In this case, MDEQ went beyond the requirements of the regulation and published notices about the hearing in three local newspapers.

Complainants also state that MDEQ's failure to provide individual notice of the hearing to more members of the community also contributed to the alleged discriminatory process. In addition to newspaper notice, EPA's regulations require that notice be mailed to certain interested community members. 40 C.F.R. § 124.IO(c)(l)(ix). MDEQ mailed hearing notification letters a month in advance to Fr. Schrnitter, Sr. Chiaverini, and nine other individuals in the community who had expressed interest in the Select Steel permit -- an action which is consistent with the requirements ofEPA's regulations. The mailing list that MDEQ developed was adequate to inform the community about the public hearing, in part, because the Complainants took it upon themselves to contact other members of the community.

The Complainants also alleged that the location of the public hearing (Mount Morris High School) made it difficult for minority members of the community to attend. Complainants felt that the hearing should have been held at Carpenter Road Elementary School. Both schools are approximately two miles from the proposed Select Steel site; however, the elementary school is located in a predominantly minority area, while the high school is in a predominantly white area.2 MDEQ explored other possible locations and chose the high school, among other reasons, because of its ability to accommodate the expected number of citizens and its close proximity to the proposed site. The high school also is accessible by the general public via Genesee County public transportation.

For all of these reasons, EPA finds that the public participation process for the Select Steel facility was not discriminatory or in violation of Title VI or EPA' s implementing regulations.

Conclusion

After reviewing all of the materials submitted and information gathered during the investigation, EPA has not found a violation of Title VI and EPA' s implementing regulations.

2 No concerns were raised about the manner in which the public hearing itself was conducted. See Telephone Interview with Complainants (September 17, 1998).

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Accordingly, EPA is dismissing the complaint as of the date of this letter. Please note that the closure of this case does not affect your right to file a complaint with OCR in the future.

Although EPA has dismissed this complaint, we believe that the Complainants raised serious and important issues that merited a careful review. To the extent the Complainants have identified general concerns about pollution in their community, including existing elevated blood lead levels in children, EPA encourages the State to continue activities to address these concerns. EPA is available to provide technical assistance in these efforts. EPA also encourages the State to continue working with this community to improve understanding of regulated activities in their local environment and the Agency is available to facilitate these efforts should the parties so desire.

More broadly, EPA believes that many of the issues raised in the context of Title VI administrative complaints could be better addressed through early involvement of affected communities in the permitting process. Such consultations will better ensure that communities are fairly and equitably treated with respect to the quality of their environment and pu blic health, while providing State and local decision makers and businesses the certainty they deserve.

In conclusion, please be aware that Title V1 provides all persons the right to file complaints against recipients of federal financial assistance. No one may intimidate, threaten, coerce, or engage in other discriminatory conduct against anyone because he or she has either taken action or participated in an action to secure rights protected under Title VI. 40 C.F.R. § 7.100. Any individual alleging such harassment or intimidation may file a complaint. 40 C.F.R. § 7.120(a). The Agency would seriously consider and investigate such a complaint if warranted by the situation.

Furthermore, under the Freedom of Information Act, it may be necessary to release this document and related correspondence and records upon request. In the event that we receive such a request, we will seek to protect, to the extent provided by law, personal information which, if released, could constitute an unwarranted invasion of privacy. s=i· AnnE. Go e ; Director cc: Mr. Robert Bosar, Vice President Dunn Industries Group, Inc. 7000 Winner Road, Suite 201 Kansas City, Missouri 64125

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RETURN RECEIPT REQUESTED

Father Phil Schmitter, Co-Director Sister Joanne Chiaverini, Co-Director St. Francis Prayer Center G-2381 East Carpenter Road Flint, Michigan 48505

Russell Harding, Director Michigan Department of Environmental Quality Hollister Building P.O. Box 30473 Lansing, Michigan 48909-7973

Re: EPA File No. 5R-98-R5 (Select Steel Complaint)

Dear Fr. Schmitter, Sr. Chiaverini, and Mr. Harding,

On August 17, 1998, the Office of Civil Rights (OCR) accepted for investigation an administrative complaint filed on June 9, 1998 by Father Phil Schmitter and Sister Joanne Chiaverini pursuant to Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000d et seq. (Title VI), and EPA’s implementing regulations, 40 C.F.R. Part 7. The complaint alleges that the Michigan Department of Environmental Quality’s (MDEQ) issuance of a Clean Air Act (CAA) Prevention of Significant Deterioration (PSD) permit to the Select Steel Corporation of America for a proposed steel recycling mini-mill in Genesee Township would lead to a discriminatory impact on minority residents and that the MDEQ permitting process was conducted in a discriminatory manner. In addition to the allegations contained in the complaint filed with OCR, the Complainants also submitted written information regarding alleged discrimination related to the permitting of the proposed Select Steel facility in an April 22, 1998 letter from Fr. Schmitter and Sr. Chiaverini to the Sugar Law Center, an April 29, 1998 letter to David Ullrich, Acting Regional Administrator for Region V, and a June 9, 1998 petition to EPA’s Environmental Appeals Board (EAB). Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 32 of 187

Title VI prohibits discrimination based on race, color, or national origin under programs or activities of recipients of federal financial assistance. EPA has adopted Title VI implementing regulations that prohibit unjustified discriminatory effects which occur under federally-assisted programs or activities. 40 C.F.R. Part 7. Discrimination can result from policies and practices that are neutral on their face, but have the effect of discriminating. Facially neutral policies or practices that result in discriminatory effects violate EPA’s Title VI regulations unless they are justified and there are no less discriminatory alternatives.

MDEQ is a recipient of EPA financial assistance; therefore, MDEQ is subject to the requirements of Title VI and EPA’s implementing regulations. Section 7.35(b) prohibits recipients from administering their programs in a manner that would have the effect of subjecting individuals to discrimination because of their race, color, or national origin. Section 7.30 of EPA’s Title VI regulations provides that no person may be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving EPA assistance on the basis of race, color, or national origin.

The June 9, 1998 Title VI complaint filed with OCR refers generally to the “unfair and disparate burden of pollution [which] will fall on a group of minority . . . people.” However, in other information provided to EPA in writing and during interviews, the Complainants also raised specific concerns about the facility’s potential emissions of volatile organic compounds (VOCs), lead, air toxics, and dioxin.

As previously mentioned, OCR accepted the complaint for investigation in August 1998, and has completed its review of the allegations raised. In analyzing the Complainants’ concerns regarding air quality and public health effects, EPA has determined that this facility would not pose an “adverse” effect on the community. In this case, EPA did not base its finding on whether the effects would be disparate since the effects did not rise to the level of “adverse.” After reviewing all the facts in this case, OCR has found that neither the Complainants’ concerns regarding air quality nor those regarding the opportunity for public participation rise to the level of a discriminatory effect within the meaning of Title VI and EPA’s implementing regulations. Therefore, OCR dismisses Complainants’ allegations in this case. The basis for this determination is explained below.

The Investigation

EPA investigated this matter consistent with its Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits (Interim Guidance). EPA has attempted to conduct this investigation expeditiously, taking into account the need for certainty in the regulatory process associated with permitting new facilities, while at the same time seriously reviewing the concerns expressed by the Complainants.

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EPA’s ability to expeditiously render this decision was facilitated significantly by the record of decision developed by the State in this case. In addition, analyses of the kind credibly undertaken by the State to address concerns raised during the permitting process not only substantially enhance the probability that State-issued permits will withstand scrutiny under Title VI, but also enables expeditious processing by EPA of administrative complaints filed under Title VI. Such analyses early in the permitting process may also facilitate the State’s early identification and development of possible solutions to address potential Title VI concerns.

Alleged Discriminatory Effect Resulting from Air Quality Impacts

As outlined in EPA’s Interim Guidance, EPA follows five basic steps in its analysis of allegations of discriminatory effects from a permit decision. “The first step is to identify the population affected by the permit that triggered the complaint. The affected population is that which suffers the adverse impacts of the permitted activity.” Interim Guidance at 8. If there is no adverse effect from the permitted activity, there can be no finding of a discriminatory effect which would violate Title VI and EPA’s implementing regulations. In order to address the allegation that MDEQ’s issuance of a PSD permit for the proposed Select Steel facility would result in a discriminatory effect, EPA first considered the potential adverse effect from the permitted facility using a number of analytical tools consistent with EPA’s Interim Guidance. It is important to note that EPA believes that the evaluations of adverse, disparate impact allegations should be based upon the facts and totality of the circumstances each case presents.

VOCs

To evaluate the impact of VOCs, EPA examined the permit application submitted by Select Steel and a variety of analyses conducted by MDEQ. With that information, EPA considered VOCs in their role both as precursors to ozone and, for some VOCs, as toxic air pollutants (see discussion below concerning air toxics). In examining VOCs as ozone precursors, EPA studied the additional contribution of VOCs from the proposed Select Steel facility and has determined those emissions will not affect the area’s compliance with the national ambient air quality standards (NAAQS) for ozone.

The NAAQS for ozone is a health-based standard which has been set at a level that is presumptively sufficient to protect public health and allows for an adequate margin of safety for the population within the area; therefore, there is no affected population which suffers “adverse” impacts within the meaning of Title VI resulting from the incremental VOC emissions from the proposed Select Steel facility. Therefore, EPA finds no violation of Title VI or EPA’s implementing regulations associated with VOCs as ozone precursors.

The Complainants also have alleged that failure to require immediate VOC monitoring for the proposed Select Steel facility will result in a discriminatory effect. Select Steel’s permit condition regarding VOC monitoring allows Select Steel one year from plant start-up to

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implement a continuous emissions monitoring system (“CEMS”) for VOCs. MDEQ is not required to prescribe immediate VOC monitoring because EPA’s regulations allow the permitting authority to impose post-construction monitoring as it “determines is necessary.” 40 C.F.R. § 52.21(m)(2). As discussed above, there would be no affected population that suffers “adverse” impacts within the meaning of Title VI resulting from the incremental VOC emissions from the proposed Select Steel facility. For this reason, EPA finds that, with regard to VOC monitoring, MDEQ did not violate Title VI or EPA’s implementing regulations.

Lead

Similarly, to evaluate potential lead emissions from the facility, EPA studied the additional contribution of airborne lead emissions from the proposed Select Steel facility and has determined those emissions will not affect the area’s compliance with the NAAQS for lead. As with ozone, there is a NAAQS for lead that has been set at a level presumptively sufficient to protect public health and allows for an adequate margin of safety for the population within the attainment area. Therefore, there would be no affected population which suffers “adverse” impacts within the meaning of Title VI resulting from the incremental lead emissions from the proposed Select Steel facility. Accordingly, EPA finds no violation of Title VI or EPA’s implementing regulations.

In this case, MDEQ also appropriately considered information concerning the effect of the proposed facility’s lead emissions on blood lead levels in children in response to community concerns. EPA reviewed this information along with other available data on the incidence and likelihood of elevated blood lead levels in Genesee County, particularly in the vicinity of the site of the proposed facility. EPA considered this additional information in response to the Complainants’ concerns that the existing incidence of elevated blood lead levels in children in the vicinity of the proposed facility were already high. Overall, EPA found no clear evidence of a prevalence of pre-existing lead levels of concern in the area most likely to be affected by emissions from the proposed facility. Furthermore, EPA concurs with the State’s finding that lead emissions from the proposed Select Steel facility would have at most a de minimis incremental effect on local mean blood lead levels and the incidence of elevated levels.

Air Toxics

For airborne toxics, EPA conducted its review based on information presented in the permit application, existing TRI data, and MDEQ documents. EPA reviewed MDEQ’s analysis of Select Steel’s potential air toxic emissions for evidence of adverse impacts based on whether resulting airborne concentrations exceeded thresholds of concern under State air toxics regulations. EPA also considered the potential Select Steel air toxic emissions together with air toxic emissions from Toxics Release Inventory (TRI) facilities, the Genesee Power Station, and other major sources in the surrounding area. EPA’s review of air toxic emissions from both the proposed site alone, as well as in combination with other sources, found no “adverse” impact in

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the immediate vicinity of the proposed facility. Therefore, EPA finds no violation of Title VI or EPA’s implementing regulations.

Dioxin

The information gathered from the investigation concerning the monitoring of dioxin emissions is consistent with EAB’s analysis of the issue.1 No performance specifications for continuous emissions monitoring systems have been promulgated by EPA to monitor dioxins. Without a proven monitor, MDEQ was unable to impose a monitoring requirement on the source. Therefore, EPA finds no discriminatory effect associated with MDEQ’s decision not to include monitoring requirements for dioxin and that MDEQ did not violate Title VI or EPA’s implementing regulations.

Alleged Discriminatory Public Participation Process

To assess the allegations of discrimination concerning public process, EPA evaluated the information from interviews with Complainants and MDEQ, and from documents gathered from the parties. The first allegation was that the permit was “hastily sped through” by MDEQ to avoid permitting requirements (i.e., conduct a risk assessment; provide opportunity for public comment on risk assessment; provide meaningful opportunity for all affected parties to participate in the permit process) imposed by a State trial court that are under appeal. The five months between receipt of the complete permit application and permit approval is actually slower than the average time of one and a half months for the past twenty-six PSD permits approved by MDEQ. EPA’s review found that the public participation process for the permit was not compromised by the pace of the permitting process. MDEQ satisfied EPA’s regulatory requirements concerning the issuance of PSD permits.

The Complainants also alleged that the relationship between an employee of Select Steel’s consultant who is a former MDEQ employee and MDEQ led to improprieties in the permitting process. Neither the documents nor the interviews revealed any improper or unlawful actions by MDEQ and Select Steel’s consultants during the permitting of Select Steel. Without any such evidence, EPA cannot find any impropriety existed that contributed to an alleged discriminatory process.

1 In the EAB’s analysis of Complainants’ PSD appeal concerning monitoring of dioxin, the Board similarly concluded that “MDEQ’s decision is not clearly erroneous.” In re Select Steel Corporation of America, Docket No. PSD 98-21, at 5 (EAB Sept. 10, 1998). That holding was based, in part, on the fact that the Complainants made “no argument and points out no data to refute MDEQ’s judgment.” Id.

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The Complainants alleged that the manner of publication of the notice of the permit hearing also contributed to the alleged discriminatory process. The Complainants allege that publication in newspapers was insufficient to inform the predominantly minority community because few community members have access to newspapers -- something the Complainants allege was brought to MDEQ’s attention during the permitting process for another facility in Genesee Township. EPA’s regulations for PSD permitting require that notice of a public hearing must be published in a weekly or daily newspaper within the affected area. 40 C.F.R. § 124.10(c)(2)(i). In this case, MDEQ went beyond the requirements of the regulation and published notices about the hearing in three local newspapers.

Complainants also state that MDEQ’s failure to provide individual notice of the hearing to more members of the community also contributed to the alleged discriminatory process. In addition to newspaper notice, EPA’s regulations require that notice be mailed to certain interested community members. 40 C.F.R. § 124.10(c)(1)(ix). MDEQ mailed hearing notification letters a month in advance to Fr. Schmitter, Sr. Chiaverini, and nine other individuals in the community who had expressed interest in the Select Steel permit -- an action which is consistent with the requirements of EPA’s regulations. The mailing list that MDEQ developed was adequate to inform the community about the public hearing, in part, because the Complainants took it upon themselves to contact other members of the community.

The Complainants also alleged that the location of the public hearing (Mount Morris High School) made it difficult for minority members of the community to attend. Complainants felt that the hearing should have been held at Carpenter Road Elementary School. Both schools are approximately two miles from the proposed Select Steel site; however, the elementary school is located in a predominantly minority area, while the high school is in a predominantly white area.2 MDEQ explored other possible locations and chose the high school, among other reasons, because of its ability to accommodate the expected number of citizens and its close proximity to the proposed site. The high school also is accessible by the general public via Genesee County public transportation.

For all of these reasons, EPA finds that the public participation process for the Select Steel facility was not discriminatory or in violation of Title VI or EPA’s implementing regulations.

Conclusion

After reviewing all of the materials submitted and information gathered during the investigation, EPA has not found a violation of Title VI and EPA’s implementing regulations.

2 No concerns were raised about the manner in which the public hearing itself was conducted. See Telephone Interview with Complainants (September 17, 1998).

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Accordingly, EPA is dismissing the complaint as of the date of this letter. Please note that the closure of this case does not affect your right to file a complaint with OCR in the future.

Although EPA has dismissed this complaint, we believe that the Complainants raised serious and important issues that merited a careful review. To the extent the Complainants have identified general concerns about pollution in their community, including existing elevated blood lead levels in children, EPA encourages the State to continue activities to address these concerns. EPA is available to provide technical assistance in these efforts. EPA also encourages the State to continue working with this community to improve understanding of regulated activities in their local environment and the Agency is available to facilitate these efforts should the parties so desire.

More broadly, EPA believes that many of the issues raised in the context of Title VI administrative complaints could be better addressed through early involvement of affected communities in the permitting process. Such consultations will better ensure that communities are fairly and equitably treated with respect to the quality of their environment and public health, while providing State and local decision makers and businesses the certainty they deserve.

In conclusion, please be aware that Title VI provides all persons the right to file complaints against recipients of federal financial assistance. No one may intimidate, threaten, coerce, or engage in other discriminatory conduct against anyone because he or she has either taken action or participated in an action to secure rights protected under Title VI. 40 C.F.R. § 7.100. Any individual alleging such harassment or intimidation may file a complaint. 40 C.F.R. § 7.120(a). The Agency would seriously consider and investigate such a complaint if warranted by the situation.

Furthermore, under the Freedom of Information Act, it may be necessary to release this document and related correspondence and records upon request. In the event that we receive such a request, we will seek to protect, to the extent provided by law, personal information which, if released, could constitute an unwarranted invasion of privacy.

Sincerely,

Ann E. Goode Director cc: Mr. Robert Bosar, Vice President Dunn Industries Group, Inc. 7000 Winner Road, Suite 201 Kansas City, Missouri 64125

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Scott Fulton Acting General Counsel U.S. EPA

David Ullrich Acting Regional Administrator Region V U.S. EPA

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U.S. Environmental Protection Agency Office of Civil Rights

INVESTIGATIVE REPORT

for

Title VI Administrative Complaint File No. 5R-98-R5 (Select Steel Complaint) Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 40 of 187

I. INTRODUCTION

On August 17, 1998, the United States Environmental Protection’s (“U.S. EPA”) Office of Civil Rights (“OCR”) accepted for investigation an administrative complaint filed on June 9, 1998 by Father Phil Schmitter and Sister Joanne Chiaverini against the Michigan Department of Environmental Quality (“MDEQ”) pursuant to Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000d et seq. (“Title VI”), and EPA’s implementing regulations, 40 C.F.R. Part 7. The complaint alleged that MDEQ’s issuance of a Clean Air Act (“CAA”) prevention of significant deterioration (“PSD”) permit to the Select Steel Corporation of America for a proposed steel recycling mini-mill in Genesee County would lead to a discriminatory impact on minority residents and that the MDEQ permitting process was conducted in a discriminatory manner. See Letter from Fr. Phil Schmitter and Sr. Joanne Chiaverini, Co-Directors, St. Francis Prayer Center, to Diane [sic] E. Goode, Director, US EPA OCR (June 9, 1998) (“Title VI Complaint”).3

In addition, Fr. Schmitter and Sr. Chiaverini provided information in an earlier letter to Kary Moss of the Maurice & Jane Sugar Law Center. Letter from Fr. Schmitter and Sr. Chiaverini to Kary Moss (April 22, 1998). That letter was transmitted to the EPA and it expressed a number of concerns over the proposed Select Steel facility.

Fr. Schmitter and Sr. Chiaverini also submitted information regarding alleged discrimination in an earlier letter to EPA Region V. Letter from Fr. Schmitter and Sr. Chiaverini to David Ullrich, Acting Regional Administrator, EPA Region V (April 29, 1998) (“April 29th Letter”). This letter enclosed the testimony that Fr. Schmitter and Sr. Chiaverini provided to MDEQ at its April 28, 1998 public hearing on the proposed Select Steel permit. On May 15, 1998, David Ullrich forwarded the April 29th Letter to EPA because it expressed concerns about Title VI matters which are the responsibility of EPA to resolve.

Fr. Schmitter and Sr. Chiaverini also alleged that MDEQ violated Title VI in a June 9, 1998 petition to EPA’s Environmental Appeals Board (“EAB”). Letter from Fr. Schmitter and Sr. Chiaverini to EAB (June 9, 1998) (“EAB Petition”). The EAB denied review of the Title VI claim on jurisdictional grounds citing EPA’s responsibility for ensuring Agency compliance with Title VI. In re Select Steel Corporation of America, Docket No. PSD 98-21 (Sept. 10, 1998) (“EAB Decision”). The EAB also denied review of the other claims regarding the alleged deficiencies of the Select Steel permit because the petition identified neither clear error in MDEQ’s decision making processes nor an important policy consideration that justified EAB review. 40 C.F.R. § 124.19(a).

3 The complaint filed by Fr. Schmitter and Sr. Chiaverini is supported by the community group Flint-Genesee United for Action, Justice, and Environmental Safety. Letter from Lillian Robinson, President, and Janice O’Neal, Spokesperson, Flint-Genesee United for Action, Justice, and Environmental Safety, to Patrick Chang, U.S. EPA (August 1, 1998); Telephone Interview with Fr. Schmitter, Sr. Chiaverini, and Ms. O’Neal (Sept. 17, 1998).

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The MDEQ has received, and continues to receive, EPA financial assistance and, therefore, is subject to the requirements of Title VI and EPA’s implementing regulations.4

4 The $2.3 million in air grants for FY98 were awarded by EPA to MDEQ via grant A005711-98 (awarded on Sept. 30, 1997). There were three amendments: A005711-98-1 (Feb. 3, 1998); A005711-98-2 (April, 24, 1998); and A005711-98-3 (Sept. 21, 1998).

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II. ALLEGATIONS

A. Allegation Regarding Air Quality Impacts

In the Title VI Complaint, Fr. Schmitter and Sr. Chiaverini allege that MDEQ’s issuance of the Select Steel permit will result in “grievous discriminatory effects” and that a “disparate burden of pollution will fall upon a group of minority . . . people.” Title VI Complaint at 1.

In their April 29th letter, Fr. Schmitter and Sr. Chiaverini stated they were sending the information “out of deep concern that another Title VI Civil Rights Violation is in the making, as the Michigan Department of Environmental Quality rushes to grant” the Select Steel permit in an “area near high concentrations of minority . . . residents.” In that same letter, Fr. Schmitter and Sr. Chiaverini request relief from “the disregard the MDEQ has for considering high concentrations of minorities around potential sources of pollution.”

In their EAB petition, Fr. Schmitter and Sr. Chiaverini make the general allegation that MDEQ’s decision to grant this permit violates Title VI of the Civil Rights Act because “the vast majority of the people within 3 miles of the proposed site are minority Americans and will be burdened with a disparate impact of pollution in an already deeply polluted area.” EAB Petition at 1.

In the testimony enclosed in the April 29th Letter, in their EAB petition, and during EPA’s September 17th and 29th interviews, Fr. Schmitter and Sr. Chiaverini raised the following concerns about the disparate impact resulting from specific potential emissions from the proposed Select Steel facility:

1. volatile organic substances (“VOCs”) (April 29th Letter, EAB Petition, Interview with Fr. Schmitter, Sr. Chiaverini, Ms. O’Neal, in Flint, MI (Sept. 29, 1998));

2. lead, including the effect of increased emissions will have on the children of Flint (April 29th letter, EAB Petition, Interview with Complainants (Sept. 29, 1998));

3. manganese (Interview with Complainants (Sept. 29, 1998));

4. mercury (Interview with Complainants (Sept. 29, 1998)); and

5. dioxin (April 29th letter, EAB Petition, Interview with Complainants (Sept. 29, 1998)).

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B. Allegation Regarding Discrimination in Public Participation

1. Timing of permit issuance

Complainants felt that the permit was “hastily sped through, and shepherded by the DEQ permit process” to avoid a potentially adverse decision in ongoing litigation over another facility in the area, the Genesee Power Station (“GPS”).5 Title VI Complaint. In the GPS case, MDEQ appealed a trial court’s order that (1) a risk assessment must be performed before a major air pollution source may be permitted, (2) notice of the risk assessment and an opportunity to comment must be provided, and (3) all affected parties must be given a meaningful opportunity to participate in the permit process. NAACP-Flint Chapter v. MDEQ, No. 95-38228-CV (Mich. Cir. Ct. Genesee Cnty. July 28, 1997) (order granting plaintiffs’ motion for a permanent injunction). Complainants in the Select Steel case, then, argued that MDEQ issued the PSD permit to Select Steel on an expedited basis to avoid having to perform those tasks in the event the Court of Appeals upheld the trial court’s decision. See Title VI Complaint; Interview with Complainants (Sept. 29, 1998).

They indicated that the initial news about the proposed Select Steel facility came from an article published in The Flint Journal on December 6, 1997. Tom Wickham, Steel Mill Eyes Local Site, The Flint Journal (December 6, 1997). The story raised some concerns for the Complainants, so in January or February 1998, they contacted MDEQ’s Thermal Process Unit Supervisor. During the course of that conversation, Complainants allege that the Supervisor said that the Select Steel permit process would take “a long time.” Based on that conversation, Complainants felt that MDEQ misled them into thinking it would be at least a year until the permit was issued, but it was ultimately issued four months later, on May 27, 1998, shortly before the June 9, 1998 oral argument in the GPS case.

2. Relationship Between Select Steel and MDEQ

Complainants also believed that the integrity of the permitting process was compromised because Select Steel retained Dhruman Shah, a former MDEQ employee, as their consultant. From 1979 to 1995, Mr. Shah was employed by MDEQ in various positions in which he reviewed permit applications for compliance with state and federal requirements. After leaving MDEQ, Mr. Shah became a Senior Project Engineer for NTH Consultants, Ltd. Select Steel hired NTH Consultants to prepare and submit their PSD application to MDEQ. NTH Consultants, in turn, selected Mr. Shah as one of its engineers on the Select Steel project. Complainants felt that the relationship

5 Flint-Genesee United for Action, Justice, and Environmental Safety, and the NAACP- Flint Chapter filed an action in the Circuit Court for the County of Genesee against MDEQ concerning the issuance of a permit for the construction of GPS, a wood waste fired steam electric plant. MDEQ appealed. The Michigan Court of Appeals accepted the case and a stay of the Circuit Court’s decision was issued. NAACP-Flint Chapter v. MDEQ, No. 205-264 (Mich. Ct. App. Oct. 2, 1997) (ordering stay of permanent injunction pending outcome of appeal).

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between Select Steel’s consultant and MDEQ led to some improprieties in the permitting process. See Telephone Interview with Complainants (Sept. 17, 1998).

3. Notice of Public Hearing

In addition, Complainants raised issues about the notice for the public hearing on the Select Steel permit application conducted by MDEQ. MDEQ published notices about the public hearing in The Flint Journal on March 27, 1998 and March 28, 1998, in The Suburban News on March 29, 1998, and in The Genesee County Herald on April 1, 1998. Complainants felt that notifications published in newspapers were not sufficient to inform their community about the public hearing. Complainants stated that few members of their community receive newspapers because they cannot afford to subscribe and because no one would deliver the newspapers to those areas. Moreover, Complainants alleged that MDEQ was aware of the insufficiency of newspaper notice because Complainants noted that members of the community did not have ready access to newspapers during the course of the GPS litigation. See Telephone Interview with Complainants (Sept. 17, 1998). Consequently, Complainants felt that MDEQ should have done more to notify the community about the public hearing. See id.

MDEQ mailed letters to some members of the community, including Fr. Schmitter and Sr. Chiaverini, notifying them about the public hearing. Complainants argued that MDEQ should have conducted a broader mailing that encompassed larger portions of the community. See id.

4. Location of Public Hearing

Complainants also alleged that the location of the public hearing made it difficult for minority members of the community to attend. MDEQ held the hearing at the Elizabeth Ann Johnson (Mount Morris) High School, 8041 Neff Road, Mount Morris, which is located approximately two miles from the site of the proposed facility. Complainants felt that the hearing should have been held at Carpenter Road Elementary School, 6901 Webster Road, Flint, Michigan, which is also located approximately two miles from the proposed site. See Telephone Interview with Complainants (Sept. 17, 1998). Carpenter Road Elementary School, however, is located south- east of the proposed site in a predominantly minority area, whereas Mount Morris High School is located north-west of the proposed site in a predominantly white area.6

6 No concerns were raised about the manner in which the public hearing itself was conducted. See Telephone Interview with Complainants (September 17, 1998).

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III. METHODOLOGY

In order to assure that EPA had the necessary information to assess the allegations raised by Complainants, the Agency undertook a comprehensive effort to collect data. That effort began by gathering all of the information that the Agency had in its possession relevant to the complaint. Then, an investigator conducted a telephone interview on September 17, 1998 with Complainants, including Fr. Phil Schmitter and Sr. Joanne Chiaverini, Co-Directors, St. Francis Prayer Center; Lillian Robinson, President, Flint-Genesee United for Action, Justice, and Environmental Safety; and Janice O’Neal, Spokesperson, Flint-Genesee United for Action, Justice and Environmental Safety.

That was followed-up by a visit to Genesee County, Michigan and another interview with Fr. Schmitter, Sr. Chiaverini, and Janice O’Neal on September 29, 1998. That same day, investigators conducted an interview with representatives of the local health department, including Brian McKenzie, Jan Hendricks, and Toni McCrumb, Genesee County Health Department. The next day, the investigators collected documents from the Complainants.

On October 15, 1998, investigators visited Lansing, Michigan and collected documents from MDEQ. The next week, on October 21, 1998, investigators returned to Lansing and interviewed employees of MDEQ, including Brian Culham, Environmental Quality Analyst, Air Quality Division District Office; Dennis Drake, Chief, MDEQ Air Quality Division; Susan Robertson, State Assistant Administrator, MDEQ; Hien Nguyen, Permit Engineer, MDEQ; Lynn Fiedler, Supervisor, MDEQ Air Quality Division Permit Section; Robert Sills, Toxicologist, MDEQ; and Jeff Jaros, Modeling and Meteorology Unit, MDEQ.

Throughout the information collection effort, EPA was performing analyses on the available data. Regarding VOC-related concerns, EPA undertook a two-pronged approach that considered VOCs in their role both as precursors to ozone and, for some VOCs, as hazardous air pollutants. For the former approach, EPA examined the surrounding region to determine whether it satisfied the federal ambient air quality standards for ozone. Then, the Agency studied the additional contribution of ozone precursors from the proposed Select Steel facility to determine how those emissions would affect the region’s compliance with the National Ambient Air Quality Standards (“NAAQS”). For the latter approach, reviewed MDEQ’s analysis of Select Steel’s potential air toxic emissions for evidence of adverse impacts based on whether resulting airborne concentrations exceeded thresholds of concern under State air toxics regulations. EPA also considered the potential Select Steel air toxic emissions together with air toxic emissions from Toxics Release Inventory facilities, the Genesee Power Station, and other major sources in the surrounding area.

Similarly, for other hazardous air pollutants, an analysis of the distribution of airborne toxic emissions was conducted, based on the information presented in the permit application and MDEQ documents.

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To evaluate lead emissions, EPA evaluated the contribution of airborne lead from the proposed facility and the NAAQS for lead. In addition, EPA examined health data from the community surrounding the proposed facility. Particular attention was paid to children’s lead exposures based on Complainants’ allegation that “‘the children of Flint are already ‘maxed out’ on lead and are 50% above the national average of lead blood levels for children’.” EAB Petition (quoting Dr. Rebecca Bascomb, M.D.). The Genesee County Health Department submitted information about blood lead levels in local children. MDEQ provided an analysis of lead deposition that they conducted in response to comments received during the permitting process. EPA gathered that data and analyzed it in light of the complaint.

To assess the allegations concerning public process, EPA evaluated the information from interviews with Complainants and MDEQ, and from documents gathered from the parties. The Agency then organized the information to determine how the process had been conducted and whether any problems arose.

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IV. POSITION STATEMENT FROM THE RECIPIENT

A. Allegation Regarding Air Quality Impacts

MDEQ responded to the Title VI complaint on September 18, 1998. See Michigan Department of Environmental Quality’s Response to the St. Francis Prayer Center Title VI Complaint of June 9, 1998 Regarding Select Steel at 1 (Sept. 18, 1998) (“MDEQ Response to Complaint”). MDEQ argued that an analysis of the air quality impacts of the proposed Select Steel facility should be limited to the impacts that fall within one mile of the site. Beginning from that position, MDEQ found that the population within 0.5 miles of the site is 88.5-93.1% white and 4.4-7.7% black. Within one mile, MDEQ found that the population is 93.3-94.3% white and 3.8-4.2% black. MDEQ stated that inclusion of populations beyond one mile was “virtually irrelevant.” Id. at 2. MDEQ noted that the 0.5 mile and one mile population number show no disparate impact and that Michigan’s population is 83.4% white and 13.3% black. In addition, MDEQ argued that “the levels of pollution emitted by Select Steel are safe for everyone.”7 Id. MDEQ concluded that “there is no evidence that the granting of a permit for Select Steel has had any disparate impact on minorities.” Id. at 3.

1. VOCs

In their EAB petition and in the materials enclosed in the April 29, 1998 letter to EPA Region V, Fr. Schmitter and Sr. Chiaverini raise concerns that the Select Steel permit will allow VOC emissions to go unmonitored for the first eighteen months of the mill’s operation. MDEQ felt that VOC emissions would not pose a problem. The Permit Engineer believed that VOC emissions from the proposed facility would be comparable to VOC emissions from one-gallon of paint. See Interview with Hien Nguyen (Oct. 21, 1998).

2. Lead

In their EAB petition, Fr. Schmitter and Sr. Chiaverini alleged that Select Steel’s permit was deficient because it lacks a monitoring requirement for lead. In response to the EAB Petition, MDEQ stated the technology that would allow continuous monitoring of lead emissions does not exist. In the absence of such technology, MDEQ chose to ensure Select Steel’s compliance with the lead emissions limit by requiring the company to install a baghouse for the melt-shop that MDEQ determined satisfies the requirements of best available control technology (“BACT”).

MDEQ determined that “even with the addition of the lead proposed to be emitted by Select Steel, the lead concentrations would be more than ten times lower than the National Ambient Air Quality Standards” of 1.5 micrograms per cubic meter (quarterly average). Response of the Michigan Department of Environmental Quality to the Petition of the St. Francis Prayer Center at

7 MDEQ noted, “‘Safe’ does not mean risk free,” citing Natural Resources Defense Council v. U.S. EPA, 824 F.2d 1146 (D.C. Cir. 1987). MDEQ Response to Complaint at 2 n.2.

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2, In re Select Steel Corporation of America, Docket No. PSD 98-21 (Aug. 19, 1998) (“MDEQ Response to PSD Appeal”).

In the materials enclosed in the April 29, 1998 letter to EPA Region V, Fr. Schmitter and Sr. Chiaverini alleged that blood lead levels in children living in the vicinity of the proposed steel mill are already ‘maxed out’ on lead and are 50% above the national average of lead blood levels for children.” EAB Petition at 1. In response, MDEQ, however, cites a blood lead level study it conducted that indicates the “level of concern” for lead is 10 micrograms per deciliter (“Fg/dL”). Robert Sills, MDEQ, Evaluation of the Potential Dry Deposition and Children’s Exposures to Lead Emissions from the Proposed Select Steel Facility, at 2 (May 15, 1998) (“BLL Study”). At blood lead levels above this threshold, children’s development and behavior may be adversely affected. See id.

MDEQ stated that it conducted the BLL Study to estimate the potential for air deposition of lead from Select Steel into soil around the proposed facility. MDEQ estimated background levels of lead in air and soils and combined those figures with three different estimates of the amount of lead present in house dust (high, medium, and low). MDEQ then analyzed the differences between children’s environmental lead exposure under these three scenarios, in each instance comparing current estimated background blood lead levels (alternative ”a”) to estimated blood lead levels after adding in Select Steel’s projected emissions (alternative “b”). See id.

3. Manganese

In the permit application, Select Steel proposed a manganese emission limit of 0.24 lb/hr which resulted in ambient air impacts greater than the initial threshold screening level (ITSL) of Michigan Air Toxics Rule 230. Mich. Admin. Code r. 336.1230 (“Air toxics from new and modified sources”). The ITSL for manganese is 0.05 micrograms per cubic meter on a 24 hour basis. MDEQ notified Select Steel of this deficiency in a letter dated February 5, 1998. To correct this deficiency, Select Steel proposed to enclose the roof monitor above the electric arc furnace (“EAF”), and install a hood and vent the captured emissions to the EAF baghouse. Letter from John F. Caudell, NTH Consultants, to Hien Nguyen, MDEQ (Feb. 20, 1998). The size of the baghouse was increased from 350,000 actual cubic feet per minute (“acfm”) to 400,000 acfm to accommodate the added flow from the new hood. In addition to the added control equipment, MDEQ imposed a BACT emission limit of 0.054 lbs/hr based on stack test data contained in another permit application (Republic Steel). The proposed changes resulted in a maximum impact on the ambient air of 0.03 micrograms per cubic meter, which is below the level specified by the State of Michigan as protective of human health for manganese. Air Quality Division, MDEQ, Select Steel Corporation of America, Questions-and-Answers Document, at 2 (April 28, 1998). MDEQ felt that those requirements for manganese from steel and iron mills are very strict. Interview with Hien Nguyen (Oct. 21, 1998).

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4. Mercury

MDEQ stated that as a result of public comments, it requested additional analysis of mercury emissions. Briefing on Select Steel Air Use Permit (undated); Interview with Dennis Drake (Oct. 21, 1998). Because the facility is in the Mott Lake Watershed and could impact mercury levels in fish, the analysis supported the reduction of the mercury emission limit from 0.05 pound per hour in the draft permit to 0.005 pound per hour in the final permit. MDEQ personnel indicated that the mercury emission limit is the lowest of any permit issued for mini-mills and noted that most permits in EPA’s Best Available Control Technology/Lowest Achievable Emissions Rate (BACT/LAER) Clearinghouse have no mercury limits at all. Interview with Hien Nguyen (Oct. 21, 1998).

5. Dioxin

In their EAB petition and in the materials enclosed in the April 29, 1998 letter to EPA Region V, Fr. Schmitter and Sr. Chiaverini alleged that the permit allows dioxin emissions to be unmonitored for the first eighteen months of the mill’s operation. MDEQ responded that it did not require dioxin monitoring because continuous emissions monitoring systems (“CEMS”) for dioxin do not exist. MDEQ Response to PSD Appeal at 6. MDEQ also claimed that EPA conducted research on American electric arc furnaces and concluded that dioxin emissions are not a concern in the operation of such furnaces. EPA reportedly found that American electric arc furnaces do not use chlorinated solvents in the melting process, that the electric arc furnaces are operated at very high temperatures, and that radiant heat from electricity (rather than coke combustion) is used to melt the scrap metal.8 MDEQ Response to PSD Appeal at 7; Air Quality Division, MDEQ, Select Steel Corporation of America, Response to Comments Document at 8 (May 27, 1998).

B. Allegation Regarding Discrimination in Public Participation

1. Timing of permit issuance

MDEQ argues that Complainants’ allegation that it accelerated the issuance of the permit in order to avoid consequences of a potentially adverse decision the GPS case is incorrect because (1) the Circuit Court’s decision in the GPS case “expressly dismissed all disparate impact claims against the MDEQ” and (2) the Michigan Court of Appeals stayed the Circuit Court’s decision pending the outcome of the appeal. MDEQ Response to Complaint at 1.

In addition, according to MDEQ staff, the five months that lapsed between the submission of the permit application and the issuance of the permit was fairly typical. Among the last twenty-six

8 The U.S. EPA has stated, in part, “No testing of CDD/CDF emissions from U.S. electric arc furnaces has been reported upon which to base an estimate of national emissions.” Exposure Analysis and Risk Characterization Group, U.S. EPA, The Inventory of Sources of Dioxin in the United States, at 7-14 (April 1998).

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PSD permits approved by MDEQ, the average time between receipt of the application and approval of the permit was 242 days. The average time between the receipt of a complete application and approval was only 49 days. Message transmitted by facsimile from Lynn Fiedler to Richard Ida, at 4 (Oct. 28, 1998) (providing table of PSD permit processing times for last three years).

2. Relationship Between Select Steel and MDEQ

Some MDEQ employees, including Dennis Drake, Director, MDEQ Air Quality Division, noted their awareness of Mr. Shah’s job with NTH Consultants, but were not aware that Mr. Shah was involved in the Select Steel application. Interviews with Dennis Drake and Robert Sills (October 21, 1998). Those MDEQ employees who knew about Mr. Shah’s role in developing the Select Steel permit, including the Permit Engineer and Thermal Process Unit Supervisor, stated that no special treatment was given to Mr. Shah or to the Select Steel permit application. Interview with Hien Nguyen and Lynn Fiedler (October 21, 1998).

3. Notice of Public Hearing

MDEQ argued that it went beyond the requirements of the regulation and published notices about the hearing in three local newspapers: The Flint Journal on March 26, 1998, and March 27, 1998; The Suburban News on March 29, 1998; and The Genesee County Herald on April 1, 1998. Regarding direct notification about the hearing, MDEQ limited its mailings because they believed that Fr. Schmitter and Sr. Chiaverini would act as the contact point for their community and alert other interested parties about the proceedings. Interview with Lynn Fiedler (Oct. 21, 1998).

4. Location of Public Hearing

To select a site for the public hearing, MDEQ considered a number of criteria: (1) proximity to proposed facility, (2) sufficient capacity for attendees, (3) rental cost, (4) other accommodation- related considerations (e.g., lighting, acoustics, adjacent rooms), and (5) availability. Interviews with Lynn Fiedler and Brian Culham (Oct. 21, 1998). For the public hearing on the Select Steel permit application, MDEQ expected up to 200 attendees, which limited the possible venues for the hearing. Interview with Susan Robertson (Oct. 21, 1998).

A MDEQ memorandum indicates that “there would be . . . a public hearing in the local area - either Carpenter Road school or another school close to the facility.” Memorandum from Lynn Fiedler to the file (Dec. 8, 1997). The Air Quality Division Hearing Officer indicated that the first location she contacted was the Carpenter Road School. Other MDEQ employees felt that Carpenter Road School did not have adequate facilities for the Select Steel public hearing. Interviews with Brian Culham and Lynn Fiedler (Oct. 23, 1998). MDEQ also contacted the Beecher High School and its feeder schools. Telephone Interview with Judy Williams, Parent Involvement Coordinator, Beecher School District (Oct. 26, 1998). MDEQ felt that the administration of those schools seemed averse to hosting a controversial hearing. Interviews with

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Susan Robertson and Lynn Fiedler (Oct. 21, 1998). MDEQ ultimately held the public hearing at Mount Morris High School, approximately two miles from the proposed facility, which they believed was a reasonable site. Interview with Lynn Fiedler (Oct. 21, 1998).

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V. FINDINGS OF FACT AND STATUTORY/REGULATORY PROGRAMS

A. Allegation Regarding Air Quality Impacts

1. Background

a. Proposed Select Steel Corporation of America Facility

The proposed Select Steel facility is a steel mini-mill which is expected to produce 43 tons per hour of specialty steels. It will process scrap steel by “melting the scrap” in an electric arc furnace. The liquid steel is then transferred into a ladle furnace where it is reheated and chemically adjusted to required specifications. The molten steel is then cast and water-cooled in a mold to the desired shape.

The proposed Select Steel facility will be located near the boundary of census tract 122.01 within a 53 acre land parcel at the southwest corner of the intersection of Lewis Road and East Stanley Road, in Genesee County, Michigan, 48485. The facility will be located in Genesee County, Air Quality Control Region 122, see 40 C.F.R. § 81.195, less than one mile from the northern boundary of the city of Flint, Michigan at a latitude of 43E 6 '9" and longitude of 83E 40' 48".

The Select Steel facility is a major stationary source with the “potential to emit” 100 tons per year or more of the criteria pollutants, oxides of nitrogen (“NOx”), carbon monoxide (“CO”), particulate matter (“PM”), and lead. The facility is subject to the PSD regulations, 40 C.F.R. § 52.21, which require the installation of BACT for the four pollutants mentioned above. The facility is also subject to MDEQ rule 702 and 230 which requires the installation of BACT for VOC’s.

The Select Steel Corporation of America submitted its initial PSD permit application under the Clean Air Act to MDEQ for the proposed mini-mill on December 30, 1997. MDEQ reviewed the application and sent a letter of deficiencies in the permit application on February 5, 1998, and requested additional information be submitted. Select Steel submitted their response on February 20, 1998. Changes and selection of BACTs for the criteria pollutants were made, including provisions to address the ambient air impacts of toxic air contaminants as required by MDEQ rule 230. Select Steel selected BACT for PM/PM10, NOx, CO, and VOCs. EPA reviewed the permit and supporting information (e.g., staff report, BACT analysis, previous BACT determinations) and submitted comments during the public comment period. MDEQ approved the Select Steel permit on May 27, 1998.

b. Proximate Population Characteristics

In the 1990 Census, the total population of Michigan was 9,295,297 with 17.6 % minority population. The complaint alleges that minority populations within 3 miles of the proposed Select Steel will bear a “disparate impact of pollution.” At one mile from a point location representing

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the approximate center of the facility land parcel, the population is 13.8% minority, at two miles it is 37.2% minority, at 3 miles it is 51.1% minority, at 4 miles it is 55.2% minority. See Table II: EPA Estimates of Population Characteristics Near Proposed Site.

c. Air Quality Regulatory Programs

i. Overview of National Ambient Air Quality Standards

The Clean Air Act (“CAA”) requires the Administrator of U.S. EPA to publish primary and secondary NAAQS for criteria air pollutants. Section 109 of the CAA, 42 U.S.C. § 7409. NAAQS are health-based standards which are established by the Administrator as necessary to “protect the public health” and must allow for an adequate margin of safety. Section 109(b) of the CAA, 42 U.S.C.§7409(b).

Under section 107(d) of CAA, 42 U.S.C. § 7407(d), each state is required to designate those areas within its boundaries where the air quality meets or does not meet the NAAQS for each listed pollutant, or where the air quality cannot be classified due to insufficient data ("unclassifiable"). An area that meets the NAAQS for a particular pollutant is termed an "attainment" area, and an area that does not is termed a "nonattainment" area. Among the listed criteria air pollutants are ozone and lead.

NAAQS, when met, provide public health protection with an adequate margin of safety, including protection for group(s) identified as being sensitive to the adverse effects of the NAAQS pollutants. EPA recognizes that there is no discernible threshold of physiological effects identified for any of the NAAQS pollutants and that there is a wide variability of responsiveness among individuals. EPA further recognizes, however, that setting of the NAAQS ultimately requires public health policy judgments of the Agency as to when physiological effects become medically significant and a matter of public health concern.

ii. Overview of Prevention of Significant Deterioration (PSD) Standards

The Clean Air Act’s PSD program applies to all areas of the country designated as “attainment” or “unclassifiable” relative to the NAAQS. CAA section 161, 42 U.S.C. § 7471. Genesee County is classified as an attainment area for all criteria pollutants except ozone. Genesee County was initially designated as a nonattainment area for the old 1-hour ozone standard. 43 Fed. Reg. 8962 (March 3, 1978); 45 Fed. Reg. 37188 (June 2, 1980). Genesee County demonstrated compliance with the old 1-hour ozone standard based upon three years of air quality data. 63 Fed. Reg. 31014 (June 5, 1998). In practical terms, this means that the old classification of “nonattainment” has been superseded by a determination that Genesee County was meeting the old ozone standard.

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Under the Clean Air Act, each state must include a PSD program in its state implementation plan. CAA sections 110(a)(2)(C) and 161; 42 U.S.C. §§ 7410(a)(2)(C) and 7471. Among other things, a PSD program must ensure that new major stationary sources employ the best available control technology to minimize the emissions of regulated pollutants. 42 U.S.C. § 7475(a)(4); 40 C.F.R. §§ 52.21(j)(2) and 51.166(j)(2). The statute gives permitting authorities substantial discretion to determine BACT in a manner consistent with the environmental protection goals of the PSD program, requiring consideration of “energy, environmental, and economic impacts.” CAA section 169(3); 42 U.S.C. § 7469(3).

If a state does not submit an approvable PSD program, the federal PSD regulations at 40 C.F.R. § 52.21 governing permit issuance apply. EPA may in turn delegate its authority to the state to issue federal PSD permits. See 40 C.F.R. § 52.21(u). Whether EPA or a delegated state actually issues the permit, the appeal of a federal PSD permit is governed by the regulations at 40 C.F.R. Part 124.

Because Michigan’s state implementation plan lacks an approved PSD program, the applicable requirements governing the issuance and appeal of PSD permits in Michigan are the federal PSD regulations at 40 C.F.R. § 52.21 and Part 124. See 40 C.F.R. § 52.1180. On September 10, 1979, pursuant to 40 C.F.R. § 52.21(u), EPA Region V delegated its authority to implement and enforce the federal PSD program to the State of Michigan. See 45 Fed. Reg. 8348 (1980). Although EPA Region V delegated administration of the PSD program in Michigan to the State, PSD permits issued by MDEQ follow the requirements in 40 C.F.R. § 52.21 and Part 124.

Having delegated its authority to administer the federal PSD program to Michigan, the relationship between EPA Region V and the MDEQ is an arms-length one. EPA Region V exercises careful oversight of the PSD program by reviewing permit applications and commenting where appropriate. Where the state issues a deficient permit, EPA Region V may appeal the permit to the Environmental Appeals Board.

The proposed Select Steel facility is a major stationary source with the "potential to emit" 100 tons per year or more of a regulated pollutant. In addition, the facility is proposed to exceed the "significant emission rate" as defined in the federal regulations for NOx, CO, PM, and lead. See 40 C.F.R. § 52.21(b)(23). Since Genesee County is designated attainment for these pollutants, the Select Steel facility is subject to PSD review for these pollutants. 40 C.F.R. § 52.21(i). The proposed Select Steel facility also has the potential to emit 38 tons per year of VOCs and sulfur dioxide. These levels of emissions are not considered "significant" under the PSD regulations. 40 C.F.R. § 52.21(b)(23). As a result, the facility need not undergo PSD review for these pollutants.

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Select Steel submitted a BACT analysis as part of its December 30, 1997 PSD permit application. The analysis included a “top down” approach consisting of five steps to evaluate and determine BACT:

1. Identify all control technologies; 2. Eliminate technically infeasible options; 3. Rank remaining control technologies; 4. Evaluate most effective controls and document results; and 5. Select BACT.

2. Specific Criteria Pollutants of Concern

Air dispersion modeling was conducted by the Select Steel facility to support a December 1997 PSD permit application filed with MDEQ. Some changes were made to the permit at the request of MDEQ, and subsequent modeling was conducted by MDEQ. The air quality model and the methodology used followed the recommendations in EPA's Guideline on Air Quality Models (Revised), codified at 40 C.F.R. Part 51, Appendix W. The modeling conducted for the criteria pollutants (i.e., NOx, SO2, PM10, and CO) showed predicted impacts well below the NAAQS.

The largest point of particulate air releases at the plant will occur at the electric arc furnace air pollution control equipment, described as the electric arc furnace or “melt shop” baghouse. Most fugitive emissions occurring within this area are captured and ducted to the baghouse for treatment. Other sources of criteria pollutants in the facility include: the lime silo; the baghouse dust silo; the boiler and the reheat furnace; nearby sources including the ladle dryer, preheaters, and dump station; tundish dump area, and material handling operation baghouses; and fugitive emissions from roads and the slagging operations. The location of the baghouse in at the northeast corner of melt shop. Carbon monoxide and VOC emissions will occur primarily at the output of the direct evacuation system canopy exhaust.

a. Volatile Organic Compounds

i. General Information

Volatile organic compounds are common reactive hydrocarbons which, together with nitrogen oxides, form ozone. The formation of ozone is a complex function of emissions and meteorological patterns and is the result of two coupled processes: (1) a physical process involving the dispersion and transport of the precursors (i.e., VOCs and NOx); and (2) the photochemical reaction itself. Both processes are strongly influenced by meteorological factors such as dispersion, solar radiation, temperature, and humidity. At ground-level, ozone is the prime ingredient of smog.

Short-term (1-3 hours) and prolonged (6-8 hours) exposures to ambient ozone concentrations have been linked to a number of health effects of concern. For example, increased hospital

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admissions and emergency room visits for respiratory causes have been associated with ambient ozone exposures.

Exposures to ozone can make people more susceptible to respiratory infection, result in lung inflammation and aggravate preexisting respiratory diseases such as asthma. Other health effects attributed to short-term and prolonged exposures to ozone, generally while individuals are engaged in moderate or heavy exertion, include significant decreases in lung function and increased respiratory symptoms such as chest pain and cough. Children active outdoors during the summer when ozone levels are at their highest are most at risk of experiencing such effects. Other at-risk groups include outdoor workers, individuals with preexisting respiratory diseases such as asthma and chronic obstructive lung disease, and individuals who are unusually responsive to ozone. In addition, long-term exposures to ozone present the possibility of irreversible changes in the lungs which could lead to premature aging of the lungs and/or chronic respiratory illnesses. See U.S. EPA, National Air Pollutant Emission Trends, 1900-1996, EPA-454/R-97-011 (1997) (“Trends Report”).

EPA promulgated a new NAAQS for ozone on July 18, 1997 (62 Fed. Reg. 38856). The new ozone standard is set at 0.08 parts per million and is calculated over an 8-hour averaging period. It replaces the old ozone standard of 0.125 parts per million based on a 1-hour averaging period.

Genesee County was initially designated as a nonattainment area for the old 1-hour ozone standard. 43 Fed. Reg. 8962 (March 3, 1978); 45 Fed. Reg. 37188 (June 2, 1980). Genesee County demonstrated compliance with the old 1-hour ozone standard based upon three years of air quality data. 63 Fed. Reg. 31014 (June 5, 1998). In practical terms, this means that the old classification of “nonattainment” has been superseded by a determination that Genesee County was meeting the old ozone standard.

On July 18, 1997, EPA established a new standard, effective on September 16, 1997, based on an 8-hour average. 62 Fed. Reg. 38856 (July 18, 1997). EPA examined recent air monitoring data (from 1995-97) from Genesee County in the context of investigating this complaint and has determined that Genesee County is also currently meeting the new 8-hour ozone standard (although official designations will not be made until the year 2000 and will be based on monitoring data from 1997, 1998, and 1999).

ii. Select Steel Permit Conditions for VOCs

The proposed Select Steel facility’s potential to emit VOC's is not considered "significant" under the PSD regulations. However, the proposed facility is also subject to MDEQ rules 702 and 230 which requires the installation of BACT for VOCs.

In response to MDEQ concerns set forth in the deficiency letter of February 5, 1998, Select Steel reviewed additional information in EPA’s Best Available Control Technology/Lowest Achievable Emissions Rate (BACT/LAER) Clearinghouse (“the Clearinghouse”) and found an emission

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factor lower than initially proposed in the permit application. As a result of this finding, the VOC emission estimate was lowered to 32 ton/yr from the electric arc furnace. Additional controls to reduce carbon monoxide emissions will also serve to reduce VOC emissions. MDEQ approved the BACT determination in permit condition 19. EPA Region V did not object to the BACT determination.

The permit issued by MDEQ gives Select Steel one year from plant start-up to implement a continuous emissions monitoring system (“CEMS”) for VOCs. The regulations give the permitting authority discretion in implementation of post construction monitoring. 40 C.F.R. § 52.21(m)(2). Pre-application monitoring of VOCs is not mandatory because Select Steel’s potential to emit is less than the significance level, but MDEQ nonetheless retains authority under the federal PSD program to require post-construction monitoring of VOCs. 40 C.F.R. § 52.21(m)(1)(i)(a), (m)(2). Such monitoring can be required if the permitting authority determines it necessary to track the effect VOC emissions may have or are having on air quality. 40 C.F.R. § 52.21(m)(2).

b. Lead

i. General Information

Lead accumulates in the blood, bones, and soft tissues and can also adversely affect the kidneys, liver, nervous system, and other organs. Excessive exposure to lead may cause neurological impairments such as seizures, mental retardation, and/or behavioral disorders. Even at relatively low doses lead exposure is associated with changes in fundamental enzymatic, energy transfer, and homeostatic mechanisms in the body, and fetuses and children may suffer from central nervous system damage. Recent studies show that lead may be a factor in high blood pressure and subsequent heart disease and also indicate that neurobehavioral changes may result from lead exposure during a child’s first years of life. See Trends Report.

In its 1978 final decision of the lead NAAQS, EPA estimated a maximum safe blood lead level and stated, “. . . the Agency should not attempt to place the standard at a level estimated to be at the threshold for adverse health effects but should set the standard at a lower level in order to provide a margin of safety. EPA believes that the extent of the margin of safety represents a judgment in which the Agency considers the severity of reported health effects, the probability that such effects may occur, and uncertainties as to the full biological significance of exposure to lead.” 43 Fed. Reg. 46247 (Oct. 5, 1978).

Since the lead NAAQS was set in 1978, ambient air concentrations of lead have declined by 97 percent, which tracks well with the decline of 98 percent in overall emissions since 1975. See Trends Report. Most decreases in emissions were the result of the phase-out of leaded gasoline.

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ii. Select Steel Permit Conditions for Lead

The significance threshold for lead emissions under PSD is 0.6 tons per year (“tpy”). The proposed Select Steel facility’s controlled maximum lead emissions based on continuous operations would be 0.66 tpy, and would thus be significant for purposes of PSD. Select Steel concluded that 2.8% of the particulate emissions from the electric arc would be lead. MDEQ chose to ensure Select Steel’s compliance with the lead emissions limit by requiring the company to install a baghouse for the melt-shop that MDEQ determined satisfies BACT. The permit also mandates monitoring of baghouse operating parameters to ensure proper functioning, performance of a stack test to verify that lead emissions do not exceed the permit limit, visible emissions monitoring, and several maintenance and contingency measures. The lead BACT emission limit of 0.15 pounds per hour was approved by MDEQ in permit condition 18.

iii. Other Local Assessments of Lead in the Environment

In its review, MDEQ conducted an analysis of the impact of lead emissions from the proposed facility in addition to the NAAQS determination. This analysis assessed the impact on children who might be exposed to soil or household dust whose concentrations of lead would increase as a result of atmospheric emissions. MDEQ conducted this analysis based on issues raised during the permit public comment period and at the public hearing, MDEQ Response to PSD Appeal at 2, and published the results in its BLL Study, dated May 15, 1998.

The MDEQ analysis used a model of exposure to lead from several pathways (inhalation as well as ingestion of soil, house dust and water) to predict what fraction of a hypothetical group of children would have elevated blood lead levels under both baseline (existing) conditions and with the increase of emissions resulting from the operations of the proposed facility. EPA reviewed the MDEQ analysis of the predicted baseline incidence of elevated blood lead levels, and the incremental increase predicted to result from the new facility.

EPA, in addition to reviewing the assumptions used in the MDEQ lead modeling, also reviewed other available data on the incidence and likelihood of elevated blood lead levels in Genesee County, particularly in the vicinity of the site of the proposed facility. EPA conducted this additional review to respond to Complainant’s concerns that the existing incidence of elevated blood lead levels in children in the vicinity of the proposed facility were already high. See EAB Petition at 1.

iv. Background on Lead Exposures and Levels of Concern

Human exposure to lead now occurs mainly through ingestion of lead in household dust, water, food, and soil, as well as inhalation. Currently, the most likely pathways of lead exposure in young children are ingestion of interior house dust. A significant immediate source of lead in soil and dust is from deteriorating paint used before 1978, especially if unprotected renovation or remodeling activities have been conducted. Lead in exterior soils may migrate indoors on

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residents’ clothing and via winds. Other major historical sources of lead in soils include deteriorating exterior paint and rainwater runoff from structures, as well as atmospheric deposition from industry or historical use of leaded gasoline.

The Centers for Disease Control and Prevention (CDC) and EPA have identified a blood lead concentration of 10 Fg/dL as a level of concern for sensitive populations (in particular young children) and have established health policy goals to limit the risk that young children would have blood lead levels above this value. According to the most recent CDC estimates, 890,000 U.S. children age 1-5 (or approximately 4.4% overall) have elevated blood lead levels, while more than one-fifth of African-American children living in housing built before 1946 have elevated blood lead levels.

v. Impacts from Proposed Facility - MDEQ’s Lead Dispersion/Deposition Modeling

Using estimates of the modeled atmospheric concentrations of lead, the BLL Study assessed the likely impact of deposition of lead to nearby soil. MDEQ estimated background levels of lead in air and soils and combined those figures with three different estimates of the amount of lead already present in house dust (high, medium, and low). MDEQ then analyzed the differences between children’s environmental lead exposure under these three scenarios using the Integrated Exposure Uptake Biokinetic Model for Lead in Children (“IEUBK”). In each scenario, MDEQ compared current estimated background blood lead levels (scenario alternative ”a”) to estimated blood lead levels after adding in Select Steel’s projected emissions (scenario alternative “b”). MDEQ’s findings are presented in Table 4 of the BLL Study.

vi. IEUBK Model

As previously mentioned, the MDEQ BLL Study attempts to predict blood-lead concentrations (blood lead levels) for children exposed to lead in their environment. The model allows the user to input relevant absorption parameters (e.g., the fraction of lead absorbed from water), as well as rates for intake and exposure. Using these inputs, the IEUBK then rapidly calculates and recalculates a complex set of equations to estimate the potential concentration of lead in the blood for a hypothetical child or population of children (six months to seven years).

The IEUBK estimates exposure using age-weighted parameters for intake of food, water, soil, and dust. The model simulates continual growth under constant exposure levels (on a year-to-year basis). In addition, the model also simulates lead uptake, distribution within the body, and elimination from the body.

The IEUBK is intended to:

Estimate a typical child's long-term exposure to lead in and around his/her residence based on inputs concerning the presence of lead in various environmental media;

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Provide an accurate estimate of the geometric average blood lead concentration for a typical child aged six months to seven years;

Provide a basis for estimating the risk of elevated blood lead concentration for a hypothetical child;

Predict likely changes in the risk of elevated blood lead concentration from exposure to soil, dust, water, or air following activities which might increase or decrease such exposure.

A site-specific risk assessment requires information on soil and dust lead concentrations for the particular site in question. Variables affecting any consideration of lead exposure from soil and dust include: soil to indoor dust transfer; ingestion parameters for soil and dust (i.e., how much soil or dust a typical child may ingest or inhale over a set period of time); and the amount of lead that can be absorbed from the soil. The model is quite sensitive to these parameters–that is, changing one variable can significantly affect the results. The IEUBK is designed to facilitate calculating the risk of elevated blood lead levels, and is helpful in demonstrating how results may change under different assumptions of inputs.

vii. MDEQ Inputs to the IEUBK Model

In its analysis, MDEQ used the point of maximum off-site atmospheric quarterly average concentration estimated to occur from lead releases from Select Steel. This maximum concentration point was located within about a hundred meters south and west from the facility fenceline, generally in an area listed on as U.S. Geological Survey (“USGS”) map as being occupied by waste ponds. This level was used to estimate the dry deposition to soil, and in subsequent modeling of the potential effects on a population of children which were assessed as if they were exposed to soils containing the deposited lead at the maximum level.

The deposition estimate involved multiplying the quarterly maximum ambient lead concentration, determined by dispersion modeling, by a dry deposition velocity. The deposition velocity assumed was 5 centimeters per second. Although the preferable approach for calculating deposition flux values is through the use of the Industrial Source Complex (“ISC”) model, the velocity assumed in the MDEQ seems reasonable and is comparable to a settling velocity for lead calculated using equation 1-55 in Volume II of the User’s Guide for the Industrial Source Complex (“ISC2") Dispersion Models (a velocity of 6.8 cm/s can be calculated using the conservative assumption that all the particles were 10 microns in diameter). Wet deposition was not considered in MDEQ’s assessment apparently due to the lack of precipitation data. Wet deposition can account for a significant portion of the total deposition with impacts often occurring much closer to the facility than the dry deposition impacts. The modeling of soil and air impacts methodology detailed in the MDEQ report is reasonable as an estimation of dry deposition of lead.

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The BLL Study estimated the deposition rate at the point of maximum concentration, and assumed a constant deposition at that rate over a 30 year period. After mixing with the top 1 cm of soil, this would increase the estimated soil lead concentration by about 14 parts per million (“ppm”). At further distances and directions from the facility emission source, the predicted concentration and deposition would decrease, so the estimate of deposition at inhabited areas may be somewhat less. viii. Results of the MDEQ IEUBK Model

The BLL Study found that the blood lead impacts from the facility would be small. The maximum air lead concentrations from the facility were estimated to result in changes in geometric mean (typical) blood lead levels of about 0.1 Fg/dL. EPA’s review identifies some refinements that would be appropriate in similar model applications in the future. However, EPA concurs that the predicted impacts on blood lead levels would be small.

3. Overview of Air Toxics

The CAA and state programs provide protection against the effects of toxic air pollutants. Title III of the CAA identifies 189 hazardous air pollutants (“HAPs”) and establishes a regulatory program to control HAP emissions from many industrial sources. The federal program also controls air toxics from mobile sources and from area sources in urban areas. In addition, individual states, including Michigan, have developed and implemented air toxics legislation and regulatory programs.

EPA promulgates regulations for HAPs under section 112 of the CAA. 42 U.S.C. § 7412. This federal air toxics program requires maximum achievable control technology (“MACT”) in its first phase and an assessment and control of residual risk remaining after the application of MACT. Those provisions, however, are not applicable to the proposed Select Steel facility. For section 112, the source category (electric arc furnaces) that includes steel recycling mini-mills was delisted because “there are no existing facilities which qualify as a major source,”9 61 Fed. Reg. 28,197 (1996), and, as a result, those sources will not be regulated under section 112. Section 129 only concerns solid waste incineration units, see 42 U.S.C. § 7429(a), and would not apply to Select Steel.

Michigan’s Rule 230 requires permit applicants to install best available control technology for certain sources of air toxics (“T-BACT”) and to perform a modeling analysis and compare those results with the initial risk screening levels. Rule 230 also allows MDEQ to establish a lower maximum emission limit if they determine T-BACT does not protect the public or the environment adequately.

9 A major source is a stationary source “that emits or has the potential to emit considering controls, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants.” 42 U.S.C. § 7412(a)(1).

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Potential emissions of toxic air contaminants were estimated by Select Steel using the average emission factors from similar facilities previously issued permits by the MDEQ and the Air and Waste Management Association compilation of baghouse dust compositions. Toxic air contaminants associated with mini-mills include metals and toxic components of VOCs. The toxic metals of concern were identified in the permit application to be cadmium, chromium, manganese, mercury, and nickel.

Modeling done by Select Steel’s consultant indicated that the ground level impacts of air toxics were below the MDEQ screening levels for all air toxics of concern except manganese. As a result of the MDEQ review and public comment, permit changes were made to further reduce the emissions and impact of two of air toxics of concern to Complainants, namely manganese and mercury.

a. Select Steel Permit Conditions for Manganese

After the Select Steel permit application was submitted, additional stack test data was submitted to MDEQ in another permit application for Republic Steel (also a proposed steel mini mill) which indicated manganese emissions may be lower than previously predicted. Based on this information, a revised lower emission rate of 0.05 lb/hr was established for Select Steel. This emission limit along with closing the roof monitor and additional hooding resulted in predicted ambient air impacts below the MDEQ screening levels. The revised emission limit of 0.05 pounds per hour was approved by MDEQ as T-BACT in permit condition 25.

b. Select Steel Permit Conditions for Mercury

After an MDEQ review of other sources of data including the Ohio EPA’s stack testing database, MDEQ determined that the prospective mercury emission levels outlined in the permit application were not representative of T-BACT. In a letter dated April 24, 1998, Select Steel agreed to reduce the mercury emission limits by a factor of 10. The draft permit was changed and the emission rate for mercury was lowered from 0.05 pound per hour to 0.005 pound per hour. The exhaust gas concentrations for mercury were also reduced by a factor of 10 to 3.84 micrograms/dscf, as specified in permit condition 25. In addition, permit condition 51 was added to require a further assessment of the impact of mercury emissions from the facility on the Mott Lake watershed, unless source testing reveals that the mercury emissions are less than 0.0004 lbs/hr.

c. Other Air toxics

To assess air toxics emissions from the proposed Select Steel facility, EPA assessed both the facility’s air toxics emissions, as well as the existing level of air toxics in the surrounding area. Data on other sources of air toxics comes from EPA’s Toxics Release Inventory (“TRI”).

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The facilities reporting to the 1996 Toxics Release Inventory (U.S. EPA 1998) are currently those facilities which are manufacturing facilities in Standard Industrial Classification (“SIC”) codes 20- 39 and employ at least 10 people. They must report annual releases and transfers of chemicals which are on the TRI list and which are manufactured, processed or otherwise used above threshold amounts. TRI reports include separate information on releases to each environmental medium (e.g., air, water, land) and offsite transfers for treatment or disposal, as well as chemicals recycled, used in energy recovery, and present in waste streams. The list of chemicals subject to reporting in 1996 (the most recent year for which data are available) included approximately 650 chemicals and chemical classes. The TRI database contains a wide range of manufacturing facility types, including chemical, rubber, plastics, and petroleum refineries, food processing (e.g., sugar refineries), electronics manufacturing, and other miscellaneous facilities, such as soft drink bottling facilities. Many sources of air toxics, including small sources (e.g., dry cleaners or gasoline service stations) and non-manufacturing sources (e.g., waste treatment facilities and energy generation plants) were not required to report even if they met the chemical quantity thresholds.

Should the Select Steel facility operate, it is expected to report to TRI. Sixteen TRI facilities are located withing 12 miles from the approximate center of the proposed Select Steel facility. Two had zero air releases reported to TRI in 1996; therefore they were not included in the modeling analysis.

4. Dioxin Monitoring

a. General Information

Chlorinated dibenzo-p-dioxins and related compounds (commonly known simply as dioxins) are contaminants present in a variety of environmental media. Human studies demonstrate that exposure to dioxin and related compounds is associated with subtle biochemical and biological changes whose clinical significance is as yet unknown and with chloracne, a serious skin condition associated with these and similar organic chemicals. Laboratory studies suggest the probability that exposure to dioxin-like compounds may be associated with other serious health effects including cancer.

EPA promulgates regulations for dioxin emissions under sections 112 and 129 of the Clean Air Act. 42 U.S.C. §§ 7412, 7429. Those provisions, however, are not applicable to the proposed Select Steel facility. For section 112, the source category that includes steel recycling mini-mills was delisted because “there are no existing facilities which qualify as a major source,” 61 Fed. Reg. 28,197 (1996), and, as a result, those sources are not expected to be regulated at this time under section 112. Section 129 only concerns solid waste incineration units, see 42 U.S.C. § 7429(a), and would not apply to Select Steel.

In addition, EPA has no emissions data for American mini-mills to either support or contradict MDEQ’s belief. A recent inventory of dioxin sources indicates that information has not yet been

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developed to determine whether dioxin is a pollutant of concern from facilities like Select Steel. Exposure Analysis and Risk Characterization Group, U.S. EPA, The Inventory of Sources of Dioxin in the United States, at 7-14 (April 1998).

To the extent that any regulations may be applicable to dioxin in other circumstances, no continuous emission monitoring system has been proven for use with dioxin by EPA. See 40 C.F.R. Parts 60, 61, 63, and 64.

b. Select Steel Permit Conditions for Dioxin

The permit contains no monitoring or any other requirement for dioxin.

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B. Allegation Regarding Discrimination in Public Participation

According to EPA’s regulations for issuance of PSD permits, 40 C.F.R. Part 124, Subpart A, MDEQ is required to provide public notice that a draft permit has been prepared, 40 C.F.R. § 124.10(a)(1)(ii), with at least 30 days for public comment. 40 C.F.R. § 124.10(b). In addition, MDEQ must hold a public hearing whenever they find a significant degree of public interest based on requests for a hearing. 40 C.F.R. § 124.12(a). Public notice of the hearing must be given at least 30 days prior to the hearing. 40 C.F.R. § 124.10(b)(2). That notice must be provided by (1) mailing a copy of the notice to certain interested parties, (2) publishing in a weekly or daily newspaper within the affected area, and (3) any other method reasonably calculated to give actual notice. 40 C.F.R. § 124.10(c).

In this case, MDEQ published notices about the draft permit in The Flint Journal on March 26, 1998, and March 27, 1998, in The Suburban News on March 29, 1998, and in The Genesee County Herald on April 1, 1998. In the same notices, MDEQ indicated that a public hearing would be held on April 28, 1998, beginning at 7:00 p.m. at the Mount Morris High School. Mt. Morris High School is located approximately two miles from the proposed site. MDEQ also mailed the notice to Fr. Schmitter, Sr. Chiaverini, and several other individuals in the community who had expressed interest in the permit.

The permit applicant, Select Steel, and local government officials also held two informational meetings prior to MDEQ’s public hearing. The first was held February 12, 1998, at Kearsley High School, 4302 Underhill Drive, Flint, Michigan, and the second was held February 19, 1998, at Mount Morris High School. These meetings were not required by any state or federal statute or regulation, and were held without the participation of MDEQ.

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VI. ANALYSIS AND RECOMMENDED DETERMINATION

A. Allegation Regarding Air Quality Impacts

The environmental laws that EPA and the states administer generally do not prohibit pollution outright; rather, they treat some level of pollution as “acceptable” when pollution sources are regulated under individual, facility-specific permits, recognizing society’s demand for such things as power plants, waste treatment systems, and manufacturing facilities. In effect, Congress--and, by extension, society--has made a judgment that some level of pollution and possible associated risk should be tolerated for the good of all, in order for Americans to enjoy the benefits of a modern society--to have electricity, heat in our homes, and the products we use to clean our dishes or manufacture our wares. Similarly, society recognizes that we need facilities to treat and dispose of wastes from our homes and businesses (such as landfills to dispose of our trash and treatment works to treat our sewage), despite the fact that these operations also result in some pollution releases. The expectation and belief of the regulators is that, assuming that facilities comply with their permit limits and terms, the allowed pollution levels are acceptable and low enough to be protective of most Americans.

EPA and the states have promulgated a wide series of regulations to effectuate these protections. Some of these regulations are based on assessment of public health risks associated with certain levels of pollution in the ambient environment. The NAAQS established under the Clean Air Act (CAA) are an example of this kind of health-based ambient standard setting. Air quality that adheres to such standards is presumptively protective of public health. Other standards are “technology-based,” requiring installation of pollution control equipment which has been determined to be appropriate in view of pollution reduction goals. In the case of hazardous air pollutants under the CAA, EPA sets technology-based standards for industrial sources of toxic air pollution. The maximum achievable control technology standards under the Clean Air Act are examples of this kind of technology-based standard setting. After the application of technology- based standards, an assessment of the remaining or residual risk is undertaken and additional controls implemented where needed.10

10 Clean Air Act § 112(f)(2)(A)(1) states “. . . If standards promulgated pursuant to subsection (d) and applicable to a category or subcategory of sources emitting a pollutant (or pollutants) classified as a known, probable or possible human carcinogen do not reduce lifetime excess cancer risks to the individual most exposed to emissions from a source in the category or subcategory to less than one in one million, the Administrator shall promulgate standards under this subsection for such category.” 42 U.S.C. § 7412(f)(2)(A)(1).

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Title VI and EPA’s implementing regulations11 set out a requirement independent of the environmental statutes that all recipients of EPA financial assistance ensure that they implement their environmental programs in a manner that does not have a discriminatory effect based on race, color, or national origin. If recipients of EPA funding are found to have implemented their EPA-delegated or authorized federal environmental programs (e.g., permitting programs) in a manner which distributes the otherwise acceptable residual pollution or other effects in ways that result in a harmful concentration of those effects in racial or ethnic communities,12 then a finding of an adverse disparate impact on those communities within the meaning of Title VI may, depending on the circumstances, be appropriate.

Importantly, to be actionable under Title VI, an impact must be both “adverse” and “disparate.” The determination of whether the distribution of effects from regulated sources to racial or ethnic communities is “adverse” within the meaning of Title VI will necessarily turn on the facts and circumstances of each case and the nature of the environmental regulation designed to afford protection. As the United States Supreme Court stated in the case of Alexander v. Choate, 469 U.S. 287 (1985), the inquiry for federal agencies under Title VI is to identify the sort of disparate impacts upon racial or ethnic groups which constitute “sufficiently significant social problems, and [are] readily enough remediable, to warrant altering the practices of the federal grantees that had produced those impacts.” Id. at 293-94 (emphasis added).

The complaint in this case raises air quality concerns regarding several NAAQS-covered pollutants, as well as several other pollutants. With respect to the NAAQS-covered pollutants, and as explained more fully below, EPA believes that where, as here, an air quality concern is raised regarding a pollutant regulated pursuant to an ambient, health-based standard, and where the area in question is in compliance with, and will continue after the operation of the challenged facility to comply with, that standard, the air quality in the surrounding community is presumptively protective and emissions of that pollutant should not be viewed as “adverse” within the meaning of Title VI. By establishing an ambient, public health threshold, standards like the NAAQS contemplate multiple source contributions and establish a protective limit on cumulative emissions that should ordinarily prevent an adverse air quality impact.

11 Title VI of the Civil Rights Act of 1964, as amended, provides that “no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal assistance.” 42 U.S.C. section 2000d et seq. EPA's Title VI implementing regulations provide that recipients of EPA financial assistance “shall not use criteria or methods of administering its program which have the effect of subjecting individuals to discrimination” because of their race, color, or national origin. 40 C.F.R. § 7.35(b)

12 For example, scenarios involving the combined impacts of multiple pollutants, multiple pathways, and multiple plants.

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With respect to the pollutants of concern in the complaint which are not covered by the NAAQS, Title VI calls for an examination of whether those pollutants have become so concentrated in a racial or ethnic community that the addition of a new source will pose a harm to that community. Because EPA has determined that there is no “adverse” impact for anyone living in the vicinity of the facility, it is unnecessary to reach the question of whether the impacts are “disparate.”

1. Volatile Organic Substances

a. VOCs as Ozone Precursor

Based on the information that was made available, EPA technical experts determined that MDEQ’s regulatory modeling was generally conducted in accordance with EPA’s Guideline on Air Quality Models. The proposed maximum allowable emissions for VOCs from the proposed Select Steel facility are 38.5 tpy. Sources with potential VOC emissions of less than 40 tons per year are not considered a significant source under federal PSD regulations. 40 C.F.R. § 52.21(b)(23)(i).

Genesee County has been effectively determined to meet the NAAQS for ozone (the pollutant of concern from VOC emissions) for both the old 1-hour standard and the new 8-hour standard. See 63 Fed. Reg. 31014 (June 5, 1998). Select Steel’s maximum modeled impacts from the criteria pollutants of concern to the Complainants are below the NAAQS. In particular, for ozone, the proposed Select Steel facility’s emissions are not expected to cause an increase in concentrations above a level deemed presumptively protective of public health. Accordingly, since the NAAQS for ozone is a health-based standard, which has been set at a level necessary to protect public health and allows for an adequate margin of safety for the population within the attainment area, there would be no affected population that suffers “adverse” impacts within the meaning of Title VI resulting from the incremental VOC emissions from the proposed Select Steel facility. For this reason, with regard to VOC emissions as ozone precursors, it is recommended that EPA find that MDEQ did not violate Title VI or EPA’s implementing regulations.

b. VOC Monitoring

In response to the Complainants’ allegation that the permit allows VOC emissions to go unmonitored for the first eighteen months of the mill’s operation, the EAB found that this was “somewhat of a misreading of the permit.” EAB Decision at 5. Permit condition 33 allows Select Steel to operate for one and possibly up to two years before it must begin VOC monitoring. MDEQ stated that because Select Steel’s potential to emit VOCs is not significant, “VOC emissions monitoring is not required under federal law.” MDEQ Response at 7. The EAB found that statement, while “technically true, is [was] somewhat misleading.” EAB Decision at 5. The EAB stated that “pre-application monitoring of VOCs is not mandatory because Select Steel’s potential to emit is less than the significance level, but MDEQ nonetheless retains authority under the federal PSD program to require post-construction monitoring of VOCs. See 40 C.F.R. § 52.21(m)(1)(i)(a), (m)(2). Such monitoring can be required if the permitting authority determines

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it necessary to track the effect VOC emissions may have or are having on air quality. 40 C.F.R. § 52.21(m)(2).” Id. at 6.

MDEQ’s permit condition regarding VOC monitoring allows Select Steel one year from plant start-up to implement a CEMS for VOCs.. However, Select Steel may choose to install an alternative monitoring system, called “parametric monitoring,” instead of the CEMS. If Select Steel does so, MDEQ must first review, test, and accept the system. If MDEQ rejects the parametric system, the permit states that Select Steel must install CEMS within two years of plant start-up. The EAB noted that “MDEQ does not explain why Select Steel is given up to two years to bring VOC emissions monitoring on-line. However, the regulations give the permitting authority discretion in implementation. 40 C.F.R. § 52.21(m)(2).” EAB Decision at 6.

MDEQ is not required to prescribe immediate VOC monitoring because EPA’s regulations allow the permitting authority to impose post-construction monitoring as it “determines is necessary.” 40 C.F.R. § 52.21(m)(2). Moreover, as discussed elsewhere, there would be no affected population that suffers “adverse” impacts within the meaning of Title VI resulting from the incremental VOC emissions from the proposed Select Steel facility. For these reasons, it is recommended that EPA find that, with regard to VOC monitoring, MDEQ did not violate Title VI or EPA’s implementing regulations.

2. Lead

Genesee County has been determined to meet the NAAQS for lead. Based on the available information, EPA technical experts determined that MDEQ’s lead modeling was generally conducted in accordance with EPA’s Guideline on Air Quality Models. Overall, the maximum predicted impacts from the Select Steel facility are generally very close in to the facility; either at or near the fenceline.

The significance threshold for lead emissions under PSD is 0.6 tpy. The proposed Select Steel facility maximum lead emissions based on continuous operations would be 0.66 tpy, and would thus be significant for purposes of PSD. MDEQ chose to ensure Select Steel’s compliance with the permit’s lead emissions limit of 0.15 pounds per hour by requiring the company to install a baghouse that MDEQ determined satisfied BACT.

Select Steel’s maximum modeled impacts from lead are below the NAAQS. Accordingly, the proposed Select Steel facility emissions are not expected to cause an increase in lead concentrations above a level deemed presumptively protective of public health. Since the NAAQS for lead is a health-based standard which has been set at a level necessary to protect public health and allows for an adequate margin of safety for the population within the attainment area, there would no affected population that suffers “adverse” impacts within the meaning of Title VI resulting from the incremental lead emissions from the proposed Select Steel facility. As discussed more fully below, EPA’s analysis of data on blood lead levels in the vicinity of the facility does not suggest a different conclusion. For these reasons, it is recommended that EPA

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find that, with regard to lead emissions, MDEQ did not violate Title VI or EPA’s implementing regulations.

a. EPA’s Review of the MDEQ BLL Study

In response to public concerns about lead in the local environment, MDEQ appropriately undertook an examination of children’s blood lead levels in the area. EPA found that the BLL Study was a conscientious attempt to address the impact of air emissions from the facility on children’s blood lead levels and that MDEQ’s use of the IEUBK model in the report was generally applied in a reasonable manner. EPA determined that MDEQ did not explicitly consider one particular pathway of exposure, namely the additional lead in house dust directly resulting from increased lead concentrations in the atmosphere (i.e., from emissions by proposed facility), but this fact did not affect EPA’s conclusions regarding the integrity of the study.

EPA reviewed the MDEQ IEUBK report’s conclusions, including the assertion that “the modeling of blood lead levels under these scenarios demonstrated little or no differences due to the proposed facility’s maximum potential impact, for each scenario.” BLL Study at 9. EPA concurs that any impacts would be small and found no reason to conclude that these results were not valid. Based on the available information concerning the releases, the additional deposits of lead in soil and dust from Select Steel are likely to have a de minimis incremental effect on local mean blood lead levels and the incidence of elevated levels.

b. EPA’s Review of Other Available Data on the Incidence and Likelihood of Elevated Blood Lead Levels in Genesee County

As previously mentioned, EPA also reviewed other available data on the incidence and likelihood of elevated blood lead levels in Genesee County, particularly in the vicinity of the site of the proposed facility, in view of complainant’s concerns that the existing incidence of elevated blood lead levels in children in the vicinity of the proposed facility were already high. EAB Petition at 1.

EPA reviewed available county health data for children with measured elevated lead levels. The overall county average in 1997 was approximately 8%. In zip code 48458, which contains the site of the proposed facility and the expected maximum ambient lead concentration resulting from plant emissions, the incidence rate above 10 Fg/dL in 1997 was about 3%, which is similar to the CDC estimate for the national average (4.4%).

In addition, EPA reviewed more specific geographic information than the zip code area totals because zip code areas are relatively large and may contain areas of high and low incidence which together combine in an average. For example, in 1995, when the Genesee County Health Department offered free testing to residents in the neighborhood of the Genesee Power Station facility at the Carpenter Road School, twenty-nine children under age 15 were tested, and none were found to have elevated levels of lead.

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Further, EPA assessed another indicator of elevated lead levels: age of housing. The HUD national survey of lead in housing found a correlation among lead in interior house dust, the presence of lead paint, and age of housing (e.g., built prior to 1950) (CDC, Screening Young Children for Lead Poisoning, 1997). While the presence of older housing units has been identified as an indicator of elevated blood lead levels, there is no explicit guidance as to the proportions which would be of concern. Interpreting these data can be informed by recent guidance on what levels might warrant a significant public health testing effort.

The Centers for Disease Control and Prevention (“CDC”) and the American Academy of Pediatrics guidance on conducting testing of children in geographic areas suggests that, depending on the presence of several factors, either universal or targeted screening may be recommended. CDC suggests conducting universal screening if the prevalence of housing units built prior to 1950 in an area is above the national average (27%), or if the prevalence of measured blood lead levels above 10 Fg/dL in 1- and 2-year olds is greater than 12%, then all children in the area should be routinely screened. If these criteria are not met, children should be screened on the basis of information collected about their specific situation (e.g., for Medicaid recipients, children living in older (pre-1950) housing units, children present during a renovation of pre-1978 housing unit).

The zip code containing the proposed facility covers a large area, and includes Mt. Morris township, which contains a larger proportion of older housing than most of the county. On average, the percentage of pre-1950 housing in zip code 48458 is about 22%, or below the CDC suggested level which would trigger universal screening of blood lead levels in young children.

Overall, EPA found no clear evidence of a prevalence of pre-existing lead levels of concern in the area most likely to be affected by lead emissions from Select Steel. EPA also concluded that lead emissions from the proposed Select Steel facility are unlikely to have significant impacts on blood lead levels of children living in the vicinity. While EPA believes that airborne lead emissions from the Select Steel facility are neither actionable under Title VI nor cause for particular concern, this does not mean that there is not a broader lead concern in Genesee County that warrants attention separate and apart from Title VI. EPA has noted that blood lead data available for Genesee County provide a basis for an ongoing lead exposure assessment. Approximately 8% of children screened for blood lead in Genesee County in 1997 exceeded the federal blood lead goal of 10 Fg/dL. The available screening data also indicate a greater risk of elevated blood lead levels among African-African children. (Four percent of African-American children screened between July 1995 and June 1998 had blood lead levels greater than 15 Fg/dL, while 1% of white children exceeded this level. Data tabulated by race were not available for all blood lead levels exceeding 10 Fg/dL.) Under these circumstances, EPA believes that, separate and apart from this case, further locally focused efforts are warranted to reduce existing prevalence of elevated blood lead levels.

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Public health efforts to mitigate existing blood lead risks can include:

C continued blood lead screening, outreach, and intervention efforts directed to at- risk populations; C generation of additional data on patterns of the occurrence of damaged lead-based paint and elevated levels of lead in residential soils and dusts; C focused educational and assistance programs to aid residents and dwelling owners in reducing existing sources of lead exposure.

EPA supports continued local efforts to assess and reduce potential lead exposures in children, and is prepared to provide assistance in the planning of intervention efforts and in the identification of resources to support this work.

3. Air Toxics

In its review of the permit for the proposed Select Steel facility, MDEQ used air models to estimate atmospheric concentrations and compare them to screening thresholds defined by the state. Modeled levels of air toxics emissions from the issued permit for the proposed facility did not exceed state thresholds of concern. These MDEQ assessments were performed on a chemical- specific basis, and did not attempt to aggregate the impacts of all releases combined.

EPA’s approach to analyzing air toxics had some elements in common with MDEQ’s NAAQS review, in that it used air models to evaluate potential concentrations of air emissions from multiple sources. It also extended this approach to include multiple chemicals, whose potential impacts were combined on the basis of similar health effects. Chemicals that may cause cancer were considered separately from those which may only cause other chronic toxic effects, because combining these different types of effects may significantly increase uncertainties. Acute effects were not considered in the analysis because neither appropriate emissions data nor toxicity data were available. For these air toxic releases, no ambient concentration regulatory standards are generally available, either singly or in combination. The EPA approach used the modeled concentration estimates along with residential population information for Census blocks to estimate exposures, and health based benchmarks to project risks of potential impacts.

a. Technical approach for air toxics evaluation

EPA conducted an analysis of the distribution of airborne toxic emissions from TRI facilities in the same area as the proposed facility. EPA modeled average concentrations at each inhabited Census block within six miles of the proposed site as a reasonable assumption of the likely maximum geographic extent of potential impacts. To assure that the contributions of the facilities outside the six-mile radius to blocks inside the circle were considered, all facilities in the analysis included those within an additional six miles (i.e., all those within twelve miles) of the proposed Select Steel site.

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The proposed Select Steel facility’s air toxics emissions were obtained from MDEQ documents listing maximum permitted limits. Modeled chemicals included arsenic, barium, cadmium, chlorine, chromium, manganese, mercury, nickel oxide, and zinc oxide, as well as lead.

In addition to the proposed facility, a total of 16 facilities were modeled, composed of 15 TRI facilities plus Genesee Power Station (“GPS”) (which was permitted to release lead and a number of other metals). Of the chemical-specific air toxics emissions listed, methyl pyrrolidone and benzo(a)pyrene (GPS only) were not modeled due to lack of available toxicity data. The proposed facility’s emissions of vanadium pentoxide and aluminum chloride were also not modeled due to lack of available EPA toxicity information. If the MDEQ ambient concentration screening levels were used to rank the potential degree of toxicity of the permitted chemicals, the ranks for these substances would be the second and third least toxic of the 10 considered, or of slightly higher concern than zinc. This ranking would also place them nearly five orders of magnitude (or a factor of 100,000) less toxic than arsenic or cadmium, which were included in the analysis.

Table X: List of Additional Facilities Modeled TRI Facility ID Facility Name Address City 48423FRNCN300SO Fernco Inc. 300 S. Dayton St. Davison 48458NVRSL1167W Universal Coating Inc 1167 W. Frances Rd. Mount Morris 48503CMMRC711W1 Oil Chem Inc. 711 W. 12th St. Flint 48503MCDNL609CH McDonald Dairy 609 Chavez Dr. Flint 48505LCKHR4701T Lockhart Chemical Co 4302 James P. Cole Flint 48505PPGND3601J PPG Industries Inc 3601 James P. Cole Flint 48506BBPNT2201N B & B Paint Co 2201 N. Dort Hwy. Flint 48506MDSTT624KE Mid State Plating Co Inc 602 Kelso St. Flint 48550BCFLN902EH GMC -Buick Motor Div 902 E. Hamilton Flint 48551GMCTRG3100 GMC Truck & Bus Group G-3100 Van Slyke Rd. Flint 48552CPCFLG3248 GM-CPC-Flint Engine Plt G-3248 Van Slyke Rd Flint 48553GMCTRG2238 GMC Metal Fabricating Div. Flint G-2238 W. Bristol Rd Flint 48554GMSRV6060W GMC Motor Service Parts Ops. 6060 W. Bristol Rd. Flint 48555CFLNT300NO GMC AC Delco Systems Div Wes 300 N. Chevrolet Ave Flint 48556CSPRK1300N AC Spark Plug GMC 1300 N. Dort Hwy. Flint NA Genesee Power Station 5300 Energy Drive Genesee Township

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EPA’s analysis was performed both with and without Select Steel to examine incremental effects, using an approach that is similar to one developed earlier for Title VI investigations and that is undergoing scientific peer review by EPA’s Science Advisory Board (‘SAB”).13 Modifications were made to address suggestions from the SAB.

To determine how permitted air toxic emissions are distributed geographically and on the basis of population subgroups, EPA used 1990 Census data and modeled average air concentrations on a census block level. The TRI air release data used was for 1996, the most recent year for which TRI data is available. The concentrations of chemicals in the various Census blocks were examined relative to known chemical-specific values such as Unit Risk Factors or Reference Concentrations (“RfCs”), and for those chemicals where these values have not yet been established, the OPPT’s Risk Screening Environmental Indicators (dated April 28, 1998) tables were used. As a conservative screening method, the carcinogenic risk estimates for all carcinogens in each block were added together as an indication of possible cumulative effects on cancer probability.

Because the probability of contracting cancer is not generally assumed to have a threshold level (i.e., there is some probability, however small, at any level of exposure), the decision regarding a level necessary to cause an adverse effect is a matter of policy. In the past, EPA has based regulatory actions at a wide spectrum of levels, generally in the range of 10-6 (one in one million) to 10-4 (one in ten thousand) lifetime cancer risk.14 Estimated lifetime individual risks below 10-6 have rarely been found to be sufficient basis for action, while in most cases, levels above 10-4 have resulted in some form of action, although not necessarily regulation.

Similarly, on the non-cancer side, the 1986 EPA guidelines for dealing with chemical mixtures discusses the concept of hazard index, where a level below 1 means that untoward effects are thought unlikely to occur. Because of the use of safety factors in determining the RfCs used to construct a hazard index, the meaning of a hazard index above 1 cannot be used to predict that unwanted health effects will occur. There are usually safety factors of from 3 to 1000 times between calculated RfC levels, which are used as screening thresholds here, and concentrations found to cause adverse effects in animals or humans. Scientists have not agreed, at this point, on a scheme for predicting if and when effects will occur based on the hazard index values between 1 and the lowest concentrations found to cause adverse health effects, often considerably higher.

Major uncertainties in this kind of analysis include the specific chemicals’ toxicity potencies, which are not always based on a comparable amount or quality of information, and may include significant “safety factors” to reflect uncertainties in the degree of potency. Other uncertainties include not being able to account for all significant sources, since mobile and area sources of

13 The approach presented for SAB review was called the Enhanced Relative Burden Analysis.

14 See, e.g., CAA § 112(f)(2)(A); 42 U.S.C. § 7412(f)(2)(A).

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certain air toxics may be as significant as point sources, especially in urban areas. The point source TRI emissions information used was based on industry-reported data which can be derived using a variety of approaches with varying degrees of accuracy, and in the case of two facilities, the maximum permitted emission levels. In interpreting combined effects of multiple chemical exposures, hazard ratios based on additive combinations of chemicals whose predicted effects are on different parts of the human body may significantly overestimate potential impacts.

Adding carcinogenic risk and construction of hazard indexes for multiple chemicals both involve "adding" various health effect "endpoints" that may result from entirely different biological mechanisms and therefore may not be strictly additive in a biological sense. In this methodology, the chemicals are added as a worst case assumption, and if added levels do not raise concern when compared to benchmarks such as a cancer risk level or a hazard index, an assumption would be that they would not be of concern if a more detailed methodology were applied.

b. Results of Air Toxics Analyses

The analysis focuses on whether the permitted Select Steel emissionsCeither in and of themselves or in combination with other emissions in the areaCresult in concentrations that may adversely impact the health of the residents in the surrounding area. The analysis found that the locations of the blocks with the maximum predicted impacts from the Select Steel Facility were very close in to the facility, near the fence line. None of the Census blocks were found to be significantly adversely impacted solely by projected emissions from the proposed facility. The Census block with the highest projected potential risk from potential carcinogens was estimated to have a lifetime risk of just above 10-6 (1 in 1 million) associated with emissions from the proposed facility. The hazard index for all blocks in the six-mile circle due to the Select Steel emissions was well below the screening threshold of 1, the highest block being about 0.03. The analysis does not support, therefore, the allegation that the proposed Select Steel facility emissions themselves, as permitted, will be the cause of health effects in the surrounding area. In addition, the levels from the Select Steel facility are also projected to be fairly low compared to the levels contributed by the other TRI sources collectively.

The cumulative results for the entire six-mile circle indicate the lifetime carcinogenic risk estimates for the highest single block is about 6x10-5. While the estimates for several blocks fall within the 10-5 range, these estimates are thought to be quite conservative for the following reason. Virtually all the blocks where risk is above the low 10-6 range are dominated by the release of chromium. The methodology makes two very conservative assumptions regarding chromium: first, that all releases are assumed to be the more toxic chromium VI valence state, as opposed to the significantly less toxic chromium III; and second, that the released particles are small enough to be carried with the wind dispersion and not fall to earth and be substantially removed through dry or wet deposition. The ratio of chromium VI to total chromium in emissions is usually much less than 1, with estimates in the 10% range not uncommon. Were this ratio factored into the methodology, none of the blocks would have shown an estimated risk

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above the 10-6 range. Even so, the conservatively derived levels are not such that they go above the 10-4 level.

On the non-cancer side, most of the blocks within the six-mile circle are below the hazard index of 1, even with all non-carcinogenic chemical effects combined. There are a substantial number of blocks, however, which have hazard indexes between one and 10, and someCjust under 6%Cwhich have hazard indexes between 10 and 80. In all of the blocks with hazard indices above 1, glycol ethers15 is the predominant cause. Therefore, uncertainties that might arise from adding different chemicals together largely do not apply.

There is considerable uncertainty about the meaning of the estimated hazard indices here, for several reasons. First, as previously discussed, scientists have not yet agreed on how to interpret hazard index values above 1. Second, the value used for glycol ethers in this screening methodology was not a formally established RfC, but a value derived from an similar type of toxicity study which used oral rather than inhalation exposure, introducing some additional uncertainty. Third, there are usually uncertainty factors applied to any RfC or reference dose calculation, so values above 1 cannot be easily (or at all) translated into predictions of probabilities of adverse health effects. At this point, these values can be termed "not necessarily safe," but neither can there be adverse health effects definitely predicted upon this basis alone. In any event, the analysis suggests that Select Steel’s emissions will contribute minimally, if at all, to the possibility of adverse health effects.

Overall, the EPA analysis does not support the contention that the combined modeled emissions in the six mile area near the proposed facility indicate the likelihood of adverse health impacts. For all of these reasons, with regards to air toxic releases, it is recommended that EPA find no violation of Title VI or EPA’s implementing regulations.

4. Dioxin Monitoring

The information gathered from the investigation concerning the monitoring of dioxin emissions is consistent with EAB’s analysis of the issue.16 No performance specifications for CEMS have been promulgated by EPA to monitor dioxins. Without a proven monitor, MDEQ was unable to impose a monitoring requirement on the source.

15 Glycol ethers are industrial solvents used in paints and other products.

16 In the EAB’s analysis of Complainants’ PSD appeal concerning dioxin monitoring, the Board similarly concluded that “MDEQ’s decision is not clearly erroneous.” In re Select Steel Corporation of America, Docket No. PSD 98-21, at 5 (EAB Sept. 10, 1998). That holding was based, in part, on the fact that the Complainants made “no argument and points out no data to refute MDEQ’s judgment.” Id.

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In addition, MDEQ believed dioxins are not emitted by steel recycling mini-mills. EPA has no emissions data for American mini-mills to either support or contradict MDEQ’s belief. The Inventory of Sources of Dioxin in the United States indicates that information has not yet been developed to determine whether dioxin is a pollutant of concern from facilities like Select Steel.

Furthermore, at this time, EPA does not expect to regulate air toxic emissions from steel recycling mini-mills under CAA section 112. Without regulations or other guidance to direct the Agency’s review of this issue, EPA is not in a position to contradict the conclusions of MDEQ.

For these reasons, a finding of no disparate impact associated with MDEQ’s decision not to include monitoring requirements for dioxin in the permit is recommended.

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B. Allegation Regarding Discrimination in Public Participation

The evidence indicates that the permitting process for the proposed Select Steel facility’s PSD permit did not violate Title VI or EPA’s implementing regulations. The investigation’s results as to each of the allegations are detailed below.

1. Timing of Permit Issuance

EPA reviewed a variety of documents from MDEQ concerning the timing of the permitting process for the proposed Select Steel facility and interviewed the MDEQ employees who participated in that process. Neither the documents nor the interviews revealed anything indicating that MDEQ expedited the permitting process for Select Steel in order to preempt an adverse holding in the GPS case or for any other improper reason. In addition, EPA’s review found that the public participation process for the permit was not compromised by the pace of the permitting process.

The five months that lapsed between the submission of the permit application and the issuance of the permit appears to be normal. Among the last twenty-six PSD permits approved by MDEQ, the average time between receipt of the application and approval of the permit was eight months, but the average time between the receipt of a complete application and approval was only one and a half months. Message transmitted by facsimile from Lynn Fiedler to Richard Ida, at 4 (Oct. 28, 1998) (providing table of PSD permit processing times for last three years). Judging by those averages, delays that may occur in the issuance of PSD permits could be attributed to incomplete applications. In this case, significant pre-application discussions occurred before the application was received on December 30, 1997. See, e.g., Memorandum from Lynn Fiedler to the file (December 8, 1997). As a result, MDEQ was able to perform a completeness determination the same day the application was submitted, thereby shortening the time required to process the application.

In addition, during a pre-application meeting with Select Steel on December 2, 1997, rather than attempting to ignore the Circuit Court’s holding in the GPS litigation, the Thermal Process Unit Supervisor said she provided a copy of the decision to the applicants. She went on to note that MDEQ “is a neutral party and . . . we would be following the process as required by the state and federal regulations.” Memorandum from Lynn Fiedler to the file (December 8, 1997).

Although Complainants may have gotten the initial impression that the permit process would take over one year based on Ms. Fiedler’s alleged comment that it would take “a long time,” subsequent communication between Complainants and MDEQ should have clarified the timetable for Complainants. On February 17, 1998, Fr. Schmitter and Ms. Fiedler discussed the timing of the hearing. Ms. Fielder indicated that it would be at least 30-45 days away. Notes from Lynn Fiedler (Feb. 17, 1998).

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Moreover, nothing in the public participation process was compromised by the pace of the permit process. MDEQ satisfied EPA’s regulatory requirements concerning the issuance of PSD permits. See infra discussion about notice and location of public hearing. For all of these reasons, it is recommended that EPA find that the circumstances surrounding the timing of the Select Steel PSD permit issuance did not violate Title VI or EPA’s implementing regulations.

2. Relationship Between Select Steel and MDEQ

EPA reviewed a variety of documents from MDEQ concerning the relationship between MDEQ and Mr. Shah, and interviewed the MDEQ employees who participated in the permitting process. Neither the documents nor the interviews revealed anything indicating improper or unlawful actions by the MDEQ, NTH Consultants, or Mr. Shah in their interactions during the permitting of Select Steel. Some MDEQ employees, including Dennis Drake, Director, MDEQ Air Quality Division, noted their awareness of Mr. Shah’s job with NTH Consultants, but were not aware that Mr. Shah was involved in the Select Steel application. Interview with Dennis Drake (October 21, 1998). Those MDEQ employees who knew about Mr. Shah’s role in developing the Select Steel permit, including Hien Nguyen, Permit Engineer, and Lynn Fiedler, stated that no special treatment was given to Mr. Shah or to the Select Steel permit application. Interview with Hien Nguyen and Lynn Fiedler (October 21, 1998).

In some government organizations, regulations prescribe certain limitations on post-employment interactions with the former government employee. In this case, Michigan does not appear to have any such regulation. See, e.g., Mich. Stat. Ann. Title 4, Part 7, Chapter 31c (1998) (Standards of Conduct); Michigan Civil Service Commission Rules § 2-12 (Retirement) and § 2- 21 (Conflict of Interest). Notwithstanding the absence of state regulations, the circumstances of this situation do not indicate any impropriety. Mr. Shah was never involved in the permitting of the Select Steel facility during his tenure at MDEQ because he resigned from MDEQ approximately two years prior to the submission of Select Steel’s application. Telephone Interview with Dhruman Shah (Oct. 23, 1998). Furthermore, even if the federal rules concerning subsequent employment had applied to this situation, Mr. Shah would have been free to participate in the Select Steel permit. See 5 C.F.R. §§ 2637.201 to 2637.204 (regulations concerning post-employment conflict of interest).

Without some evidence of impropriety in the relationship between the permit authority and the permittee, EPA cannot assume that any such impropriety existed. Accordingly, it is recommended that EPA find that nothing about the relationship between MDEQ, Select Steel, NTH Consultants, and Mr. Shah violated Title VI or its implementing regulations.

3. Notice of Public Hearing

EPA reviewed a variety of documents from MDEQ concerning the notice provided for the public hearing and interviewed the MDEQ employees who were involved in providing that notice. Neither the documents nor the interviews revealed anything indicating a violation of Title VI of

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the Civil Rights Act of 1964, as amended, or EPA implementing regulation, by the MDEQ in providing notice for the public hearing.

EPA’s regulations for PSD permitting require that notice of a public hearing must be published in a weekly or daily newspaper within the affected area. 40 C.F.R. § 124.10(c)(2)(i). In this case, MDEQ went beyond the requirements of the regulation and published notices about the hearing in three local newspapers: The Flint Journal on March 26, 1998, and March 27, 1998; The Suburban News on March 29, 1998; and The Genesee County Herald on April 1, 1998.

EPA’s regulations also require that notice be mailed to certain interested community members. 40 C.F.R. § 124.10(c)(1)(ix). MDEQ mailed letters dated March 25, 1998 to Fr. Schmitter, Sr. Chiaverini, and nine other individuals in the community who had expressed interest in the permit. That letter was also transmitted by facsimile machine to Fr. Schmitter and Sr. Chiaverini on March 25, 1998. Nonetheless, Complainants believed that MDEQ should have mailed the notice to more members of the community, particularly in light of the alleged inadequacy of the notice mentioned in the GPS case. MDEQ, however, believed that Fr. Schmitter and Sr. Chiaverini would act as the contact point for their community and alert other interested parties about the proceedings. Interview with Lynn Fiedler (Oct. 21, 1998). More importantly, the mailing list prepared by MDEQ included individuals who had expressed interest in the Select Steel permit application and who had participated in other permitting decisions that involved the area, consistent with the requirements of EPA’s regulations. See Select Steel Mailing List (undated).

The information examined during the investigation indicates that MDEQ provided sufficient notice of its public hearing. In terms of newspaper publication, MDEQ went beyond the requirements of EPA’s regulations and issued the notice in three, rather than just one, local newspapers. The mailing list that MDEQ developed also met EPA’s requirements and was not inadequate to inform the community about the public hearing, in part, because the Complainants took it upon themselves to contact other members of the community. Consequently, it is recommended that EPA find that the method of notification for the public hearing did not violate Title VI or its implementing regulation.

4. Location of Public Hearing

EPA reviewed a variety of documents from MDEQ concerning the location of the public hearing and interviewed the MDEQ employees who were involved in selecting that location. Neither the documents nor the interviews revealed anything indicating a violation of Title VI of the Civil Rights Act of 1964, as amended, or EPA implementing regulation, by the MDEQ in selecting a location for the public hearing.

Complainants wanted the hearing held at Carpenter Road Elementary School. It is not clear whether MDEQ contacted the school in its search for a hearing site. A MDEQ memorandum indicates that “there would be . . . a public hearing in the local area - either Carpenter Road school or another school close to the facility.” Memorandum from Lynn Fiedler to the file (Dec. 8,

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1997). The Air Quality Division Hearing Officer indicated that she contacted the Carpenter Road School. Interview with Susan Robertson (Oct. 21, 1998). The Principal of Carpenter Road Elementary School, however, has no recollection of being contacted about such a hearing and said that he normally welcomes such events. Telephone Interview with Charles Atwater (Oct. 23, 1998).

MDEQ contacted the Beecher High School and its feeder schools. Telephone Interview with Judy Williams, Parent Involvement Coordinator, Beecher School District (Oct. 26, 1998). MDEQ ultimately held the public hearing at Mount Morris High School, approximately two miles from the proposed facility.

Notwithstanding the uncertainty about Carpenter Road Elementary School, the location chosen for the public hearing is in close proximity to the proposed site. In addition, it is accessible by the general public. The Genesee County Metropolitan Transit Authority provides public transportation (e.g., “Your Ride”) to the location. Telephone Interview with Ronda Jenkins, Customer Service Representative, Genesee County Mass Transit Authority (Oct. 28, 1998). It is recommended that EPA find that MDEQ’s decision to host the hearing at Mount Morris High School does not raise to the level of a violation of Title VI or its regulations.

C. Conclusion

Having analyzed all of the materials submitted and information gathered during the investigation regarding each allegation, it is recommended that EPA not find any violations of Title VI and EPA’s implementing regulations by MDEQ.

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EXHIBIT 4 Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 83 of 187

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460

JUL - 1 2003

OFFICE OF CIVIL RIGHTS RETURN RECEIPT REQUESTED

Mr. Luke Cole Center on Race, Poverty & the Environment California Rural Legal Assistance Foundation 631 Howard Street, Suite 330 San Francisco, CA 94105-3907 Certified Mail #7003 0500 0003 8796 9359

Mr. James W. Warr, Director Alabama Department of Environmental Management 1400 Coliseum Boulevard Montgomery, Alabama 36110-2059 Certified Mail # 7003 0500 0003 8796 9366

Re: EPA File No. 28R-99-R4

Dear Mr. Cole and Mr. Warr:

On December 11, 2002, the EPA Office of Civil Rights (OCR) accepted for investigation an administrative complaint filed on December 17, 1999, by the Center on Race, Poverty & the Environment on behalf of six environmental justice organizations and two individuals. The complaint was filed pursuantto Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000d et seq. and EPA's implementing regulations, 40 C.F.R. Part 7. It alleges that the Alabama Department of Environmental Management (ADEM) violated Title VI and EP A's implementing regulations by discriminating against African Americans on the basis of race in issuing and modifying permits to operate municipal solid waste landfills in Alabama.

This letter and the accompanying Investigative Report constitute OCR's fmdings under Title VI and 40 C.F.R. Part 7 and dismissal of the Title VI complaint. OCR's findings, and the legal and factual bases for the finding are set forth in detail in the Investigative Report, which is incorporated herein by reference.

Legal Background for Complaint. Title VI prohibits discrimination on tl1e basis of race, color, or national origin under programs or activities of recipients of federal financial assistance. EPA has adopted regulations to implement Title VI. 40 C.F.R. Part 7. EPA's regulations prohibit intentional discrimination in the administration of an EPA recipient's programs or activities. In addition, EPA regulations specifically provide, in part, that recipients

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shall not "[ d]eny a person any service, aid or other benefit of the program," "[p]rovide a person any service, aid or other benefit that is different, or is provided differently from that provided to others under the program,'' or "[r]estrict a person in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, aid, or benefit provided by the program." 40 C.F.R. §§ 7.35(a)(l ), (a)(2), and (a)(3). EPA's Title VI regulations also prohibit practices having a disparate impact on protected groups. Under Section 7.35(b), a recipient of EPA federal assistance is precluded from using criteria or methods of administering its programs which have the effect of subjecting individuals to discrimination because of their race, color, or national origin. The Alabama Department ofEnviromnental Management is a recipient of EPA fmancial assistance and is, therefore, subject to the requirements of Title VI and EPA's implementing regulations.

The Title VI Complaint. The complaint alleges that ADEM violated Title VI and EPA' s implementing regulations by discriminating against African Americans on the basis of race in issuing and modifying permits to operate municipal solid waste landfills in Alabama. Complainants assert that, for four specific landfills in Lauderdale County (Florence Landfill), Jefferson Connty (New Georgia Landfill), St. Clair County (Cedar Hill Landfill), and Walker County (Pineview Landfill), "the permitting process is ADEM's method of discrimination," because it results (1) in adverse impacts to African American communities around the landfills, and (2) in disparate impacts because the landfills are permitted in African American communities when they serve mostly White communities. Complainants also assert that ADEM engaged in a pattern and practice of discrimination against African Americans by concentrating municipal solid waste landfills in predominantly African American communities throughout Alabama, when the landfills serve predominantly White communities.

On December 11, 2001, EPA accepted two allegations for investigation after finding that the complaint met the four jurisdictional requirements set out in 40 C.F .R. Part 7. Those two allegations are:

(I) that ADEM violated Title VI and EPA's implementing regulations by issuing and modifying permits for four municipal solid waste landfills in Lauderdale County, Jefferson County, St. Clair County, and Walker County which had the effect of adversely and disparately impacting African American residents in those communities; and

(2) that ADEM violated Title VI and EPA's implementing regulations by engaging in a pattern of discrimination against African Americans because it is ADEM' s practice to concentrate municipal solid waste landfills in predominantly African American communities, when the landfills service predominantly White communities.

On May 23, 2002, EPA informed both the complainants and the recipient that it was construing Allegation # 1 to assert a claim of disparate impact discrimination and Allegation #2 to assert a claim of intentional discrimination.

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The Title VI Investigation. In order to assure that EPA had the necessary information to assess the allegation, the Agency undertook a comprehensive effort to collect data. In addition to gathering all information in EPA 's possession relevant to the complaint, investigators visited ADEM's office in Montgomery, Alabama to review permitting files for the Florence, New Georgia, Cedar Hill, and Pineview landfills. In addition, ADEM staff answered EPA permitting and process questions as they arose throughout the investigation and provided detailed information on current landfill permits and landfill locations in Alabama The investigation included a site visit to the Pineview Landfill, although efforts to interview complainants concerned with the Pineview Landfill proved unsuccessful. Further, substantial research was undertaken to analyze potential landfill impacts utilizing available government information, including EPA technical information and background documents. Thorough review of both EPA and Alabama regulations of municipal solid waste landfills was also made.

Factual and Legal Findings for the Disparate Impact Claims. Allegation #1 asserts four disparate impact claims arising from ADEM's issuance and modification of permits for Cedar Hill Landfill, New Georgia Landfill, Florence Municipal Solid Waste Landfill, and Pineview Landfill. The specific ADEM permit actions alleged to have violated Title VI and EPA' s implementing regulations were:

• Cedar Hilt September 9, 1999, permit modification approval for the relocation of the Facility's background groundwater monitoring well.

•New Georgia: June 25, 1999, permit modification approval to dowograde the Facility's municipal solid waste landfill site to a construction/demolition-only landftll site.

•Florence: June 25, 1999, permit modification approval for structural changes to the Facility's disposal cells and surface water controls.

• Pineview: October 28, 1999, permit renewal and reissuance.

Tue adverse impacts alleged to have resulted from these actions were noise, odor, flies. wild animals, air pollution, traffic, and fear of groundwater contamination.

In assessing whether a recipient's criteria or methods of administration resulted in unlawful discriminatory effects, the Agency begins with a determination of whether a prima facie case of adverse disparate impact can be established. In order to establish a prima facie showing, the Agency must determine:(~) whether a causal connection exists between the recipient's facially neutral action or practice and tl1e allegedly adverse disparate impact; (2) whether the alleged impact is "adverse;" and (3) whether the alleged adversity imposes a disparate impact on an individual or group protected under Title VI. If the Agency cannot establish any one of these prima facie elements, then the Agency must make a finding of no violation, and dismiss the complaint. 40 C.F.R. § 7.120(g); See New York City Envtl. Justice Alliance v. Giuliani, 214 F.3d 65, 69 (2d Cir. 2000) (citing Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir. 1998); New

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York Urban League, Inc. v. New York, 71F.3d1031, 1036 (2d Cir. 1995).

Consistent with this legal analysis, EPA determines whether a causal connection exists between a recipient's permit modification approvals and a complainant's alleged adverse disparate impacts by looking to the modification at issue and the modification's effects. While permit modifications can trigger Title VI violations, modifications that do not involve actions related to the alleged impacts identified in the complaint will not form the basis for a finding of noncompliance· with EPA 's Title VI regulations because no causal connection can be established. For these same "causal connection" reasons, modifications that result in significantly decreased emissions of all pollutants concerned or all the pollutants EPA reasonably infers are the potential source of the alleged impact will not result in a Title VI violation.

Cedar Hlll Landfill The groundwater monitoring well at issue in the September 9, 1999, permit modification approval (GWA-1) for the Cedar Hill Landfill was Cedar Hill's only background groundwater monitoring well. Purs~t to ADEM's requirements, it established groundwater quality for the Facility prior to the Facility's acceptance of waste in 1977. Its relocation, approximately 20 feet to the west of its previous spot (along the gravel entrance to the Landfill), was made in order to avoid damage to the well from Landfill traffic and construction activities planned for road improvements. The evidence indicates the abandonment of GWA-1 and the relocation of GWA- lR were done according to ADEM well construction standards. In particular, the record reflects that groundwater well GWA-lR was installed properly and at a depth similar to, and in a similar hydrogeologic regime, as the old well.

There is no evidence indicating that the 20-foot relocation of the GWA-1 background groundwater monitoring well is connected or related to the alleged adverse impacts of odor, flies, wild animals, air pollution, and traffic from the Landfill operation. There is also no evidence to suggest that the abandonment and relocation of this groundwater monitoring well is related to the alleged "fear of groundwater contamination"or any potential groundwater contamination. Because there is no causal connection between the relocation of GWA-1 and complainants' alleged adverse impacts, this modification is not an action that forms a basis for a fmding of noncompliance with EPA 's Title VI regulations. The disparate impact allegation involving Cedar Hill Landfill must be, and hereby is, dismissed.

New Georgia. The Title VI trigger action noted in the complaint for the New Georgia Landfill was the June 25, 1999, conversion of30.5 acres of the Landfill from a municipal solid waste landfill approved to accept non-hazardous household garbage and industrial waste to a landfill approved to only accept construction and demolition waste. That is, as a result of the pennit modification, New Georgia's construction/demolition area could accept only a portion of \vaste compared to its previously permitted status. In particular, the Landfill could no longer accept household garbage (including organic waste subject to decay), industrial waste, municipal solid waste ash, or medical waste. The adverse impacts alleged from this permit modification action were noise, odor, flies, wild animals, air pollution, traffic, and fear of groundwater contamination.

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As with the Cedar Hill Landfill, EPA has found no causal connection between the New Georgia Landfill permit modification and the alleged impacts. Although the New Georgia fucility never accepted waste at the 30.5 acre site either as a municipal solid waste landfill or as a construction/demolition unit, the June 25, 1999, permit modification significantly reduced any potential for the impacts alleged by complainants. For example, without organic, decaying household garbage, leachate generation (which impacts both groundwater and surface water) is minimized or non-existent. The lack of organic household or industrial waste also limits odor, air emissions in the form of methane and non-methane organic compounds, and animal intruders otherwise lmown as disease vectors. In addition, because the New Georgia Landfill could now accept only a portion of the previously approved waste stream (construction/demolition waste only), and because the Landfill was not the only construction/demolition landfill in the area, the June 25, 1999, permit modification minimized potential traffic and noise from the Landfill by reducing traffic to the site. These significant reductions in potential impacts are also supported by the fact that the modification constituted a regulatory downgrade of the Landfill.

All available evidence indicates that any potential for alleged adverse impacts from New Georgia's 30.5 acre municipal solid waste landfill site were significantly reduced as a result of the modification on June 25, 1999. Modifications that result in significantly decreased emissions of all pollutants concerned or all the pollutants EPA reasonably infers are the potential source of the alleged impact will not result in a Title VI violation because such modifications are not causally connected to the alleged impacts. Because the modification at issue for the New Georgia Landfill significantly reduced the potential for the alleged adverse impacts, it is not an action that forms a basis for a finding of noncompliance with EPA 's Title VI regulations. The disparate impact allegation involving New Georgia Landfill must be, and hereby is, dismissed.

For the Florence and Pineview Landfills. To assess whether alleged adverse impacts from the Florence Landfill and Pineview Landfill permit actions (Florence: June 25, 1999, permit modification approval for structural changes to the Facility's disposal cells and surface water controls; Pineview: October 28, 1999, permit renewal and reissuance) may have a disproportionate impact on A:fi:ican Americans living around those landfills, EPA conducted an analysis to identify the popnlation potentially affected by each landfill. For reasons discussed fully in the Investigative Report, a one~mile radius proximity analysis, based on 2000 Census Data, was used to identify the affected population for the alleged adverse impacts identified by complainants as being associated with landfill operations. EPA then compared the percentage of African Americans in that affected population with the percentage of African Americans in the service area of each landfill and in the State to determine whether African Americans near the landfills were disproportionately affected by potential impacts.

Florence Landfill EPA' s one-mile radius proximity analysis revealed that the percentage of African Americans within one mile of the Florence Landfill is 6.8%. This 6.8% is significantly lower than the State percentage of African Americans (26%). It is also signlficantly lower than the percentage of African Americans in the Landfill's service area (the City of

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Florence), whi~h is 19.3%. Either comparison population fails to reveal that alleged impacts from the Landfill, even if substantiated, would disparately impact African Americans.

Pineview Lant/fill. The percentage of African Americans within one mile of the Pineview Landfill is 0.2%. This percentage is significantly lower than the percentage of Afiican Americans in the service area of the Facility (26.4%) and in the State (26%), and does not support a finding of disparity. Further, even when using a larger proximity radius (two, three, and four miles) for the Pineview Landfill based on its larger size and the specific citizen complaints contained within ADEM's permitting files for Pineview, the proximity analysis fails to support a finding of disparity when compared to the percentage of African Americans in the nine-county service area and in the State. When using a two-mile, three-mile, and four-mile proximity analysis of this site, the African American percentage of the affected population increases only to 3.2%, 7 .9%, and 7 .1 % respectively. These percentages continue to be significantly lower than the percentage of African Americans in the State (26%) and in the 9- county service area (26.4%). Finally, there is no evidence to indicate that the alleged adverse impacts from the Pineview Landfill affect only the 100% African American community of Yerkwood (located approximately 1.5 miles from the Pineview Landfill). Rather, evidence indicates that the alleged impacts, if substantiated, would potentially affect a number of the primarily non-African American communities surrounding the Landfill.

Because the demographics fail to reveal that alleged impacts from the Florence and Pineview Landfills, even if substantiated, would disparately impact African Americans, the disparate impact allegation involving both the Florence Landfill and the Pineview Landfill must be, and hereby is, dismissed.

Factual and Legal Findings for the Intentional Discrimination Claim. EPA has found no direct evidence of intentional discrimination in its investigation of ADEM's permitting process for municipal solid waste landfills in Alabama as it relates to the location of landfills. In fact, the direct evidence indicates that ADEM does not choose the location of landfills sites in Alabama and confines its analysis of permit applications to the technical suitability of sites already chosen by local governments. In analyzing the technical suitability of a landfill site, ADEM did not (and does not) consider race or any other socio-ecollomic factor relating to the location oflandfills. For example, ADEM's Pineview and Cedar Hill permitting files consistently reference ADEM' s inability to consider such "non-technical" factors when processing landfill permit applications. These references indicate that ADEM believes it cannot consider race or other socio-economic (non-technical) location factors at any point in its solid waste disposal permitting process and that local governments are tasked with making these considerations under Alabama's Solid Wastes Disposal Act.

In addition, EPA has found no circumstantial evidenc~ of intentional discrimination in its investigation of ADEM' s pennitting process for municipal solid waste landfills in Alabama. That is, EPA has found no circumstantial evidence indicating that similarly situated White people in Alabama were treated more favorably by ADEM by not having landfills permined next to their

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communities. In particular, EPA has found no evidence indicating a pattern by ADEM of permitting landfills primarily in African American communities or that ADEM permitted most municipal solid waste landfills in African American communities when such landfills serviced primarily White communities. Rather, at a one~mile proximity radius, EPA' s data on a representative sample of 13 out of29 municipal solid waste landfills indicate that over 2/3 (or 69.3%) of these landfills are not located in primarily African American communities when compared with service area demographics. There was also no pattern in pennitting found when one~mile demographics around the representative landfills were compared to the percentage of African Americans in the State. Even data reflecting demographics for two, three, and four miles around the landfills do not indicate a pattern of permitting landfills (or a concentration of landfills) in primarily African American communities while serving primarily White communities. Because the data do not indicate a pattern or concentration of landfills in primarily African American communities, they do not constitute circumstantial evidence of intentional discrimination by ADEM in its permitting of municipal solid waste landfills in Alabaroa.

Finally, even if any demographic data did exist which supported complainants' assertion as to the concentration of laodfills in Alabama, such data would be outweighed by evidence indicating that ADEM does not ( aod did not) consider race, color, or national origin in the processing of any of its landfill permit applications. The lack of permit application denials by ADEM during the relevant period of time for this investigation (1999 - present) is evidence that ADEM did not treat White communities surrounding potential landfills more favorably than African American communities by rejecting applications for landfills located near any such White community. In additio~ correspondence in ADEM's permitting files consistently reference ADE M's belief that it was unable to consider race or any other socio-economic factor when processing landfill permit applications.

For the purposes of assessing whether a prima facie case exists with regard to intentional discriminatio~ ADEM's belief in the limitations imposed upon it regarding consideration of non-technical location issues, its actions on landfill permit applications in accordance with those beliefs, and the lack of permit denials, present evidence that clearly outweighs any demographic information that may show landfills were permitted in predominantly African American communities and serving predominantly White communities. Given the lack of direct or circumstantial evidence of intentional discrimination, Allegation #2 must be, and hereby is, dismissed.

Recommendations. While no Title VI disparate impact violations were found at the four landfills subject to Allegation# I of the instant Title VI complaint, EPA 's investigation of this Title VI complaint reveals a significant potential for failure to adequately consider socio­ economic impacts (including race) at any point in the siting and permitting process for municipal solid waste laodfills in Alabama. This potential failure of consideration could lead, in the futme, to AD EM-permitted landfills that have ao adverse disparate impact on a population protected by EPA' s Part 7 regulations. Because of this possible consequence, and as discussed in more detail

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in the "Recommendations" Section of the Investigative Report, EPA offers the following four recommendations to ADEM with regard to its Solid Waste Disposal Program:

e Recommendation #1: Require that local governing bodies submit to ADEM, along with their local approval of solid waste landfill permit applications, detailed analyses of the six minimtun siting factors (as set out in the State's Solid Wastes Disposal Act and ADEM's implementing regulations) that were considered by the local body in connection with the site-specific pennit;

e Recommenda.tion #2: Where a local body's analyses of the six minimum siting factors is not sufficient (as determined by ADEM) or not done, undertake separate consideration of these factors during ADEM's pennitting of a municipal solid waste landfill;

8 Recommendation #3: Put in place a program to oversee local government implementation of local solid waste management plans; and

8 Recommendation #4: Implement the "recommendations" as contained within Phase II of the State's Solid Waste Management Plan.

Conclusion. Upon review of the materials submitted and information gathered during its investigation, as well as controlling legal authority, EPA has not found a violation of Title VI or EP A's implementing regulations. Accordingly, EPA is dismissing the complaint as of the date of this letter.

Title VI provides all persons the right to file complaints against recipients of federal financiai assistance. No one may intimidate, threaten, coerce, or engage in other discriminatory conduct against any individual or group because of action taken or participation in any action to secure rights protected under Title VI. 40 C.F.R. § 7.100.

Under the Freedom of Information Act, 5 U.S.C. § 552, EPA may be required to release this document, the Investigative Report, and related correspondence, documents, and records, upon request In the event of such a request, EPA will seek to protect, to the extent provided by law, any personal information, which, if released, could constitute an unwarranted invasion of privacy of any individual.

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In closing, I would particularly like to thank the staff of ADEM for being cooperative and helpful during this investigation. If you have any questions or would like to discuss these findings or recommendations further, please feel free to contact Nancy L. Tommelleo, EPA's Title VI Task Force, at 404~562-9571.

Sincerely, ~«icd&r.d-- Karen D. Higginbotham Director

Enclosure cc: Steve Pressman, Associate General Counsel (Acting) Office of General Counsel (MC 2399A)

Phyllis P. Harris, Principal Deputy Assistant Administrator Office of Enforcement and Compliance Assurance (MC 2201A)

Barry Hill, Director Office ofEnvirournental Justice (MC 2201A)

J. I. Palmer, Jr., Regional Administrator EPA Region 4 (4RA)

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U.S. Environmental Protection Agency Office of Civil Rights

INVESTIGATIVE REPORT

for

Title VI Administrative Complaint File No. 28R-99-R4 (Yerkwood Landfill Complaint) JUNE2003 Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 93 of 187

I. INTRODUCTION

Title VI of the Civil Rights Act of 1964, as amended (Title VI), prohibits discriminatio11 based on race, color, or national origin under any program or activity of a recipient of federal fmancial assistance. 42 U.S.C. §§ 2000d-7. Title VI prohibits intentional discrimination and authorizes federal agencies to adopt implementing regulations that also prohibit discriminatory effects. See Alexander v. Choate, 469 U.S. 287, 292-294 (1985); Guardians Ass'n v. Civil Service Con1m 'n, 463 U.S. 582, 589-593 (1983). The United States Environmental Protection Agency's (EPA or Agency) Title VI implementing regulations are codified at 40 C.F .R. Part 7. Under these regulations, the actions of a recipient of EPA financial assistance may not intentionally discriminate or have a discriminatory effect based on race, color, or national origin.

As provided at 40 C.F .R. § 7 .120, administrative complaints alleging discriminatory acts in violation of 40 C.F .R. Part 7 may be filed with the Agency. EPA reviews accepted complaints in accordance with 40 C.F.R. Part 7, Subpart E (§§ 7.105-7.135). This Investigative Report describes EPA's investigation of an administrative complaint filed on behalf of six environmental justice organizations by the Center on Race, Poverty & the Environment against the Alabama Department of Environmental Management (ADEM) and recommends that the two accepted allegations be dismissed.

A. Statutory Bacl{ground

Under Section 601 of Title VI,

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal fmancial assistance.

42 U.S. C. § 2000d. Under the Civil Rights Restoration Act of 1987, "any program or activity" is broadly defined so that Title VI prohibitions are applied institution-wide. 42 U.S. C. § 4000d-4a.

The purpose of Title VI is to ensure that public funds are not spent in a way \Vhich encourages, subsidizes, or results in discrimination on the basis of race, color, or national origin. Toward that end, Title VI bars intentional discrimination. See Alexander, 469 U.S. at 293; Guardians, 463 U.S. at 607-608.

In addition, under Section 602, Title VI authorizes and directs federal agencies to enact "rules, regulations, or orders of general applicability'' to effectuate the provisions of Section 601. 42 U.S.C.S. § 2000d-I. Most federal agencies have adopted regulations that prohibit recipients of federal funds from using criteria or methods of administering their programs that have the effect of subjecting individuals to discrimination based on race, color, or national origin. The Supreme Court has held such regulations may validly prohibit practices having a disparate

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impact on protected groups, even ifthe actions or practices are not intentionally discriminatory. Guardians, 463 U.S. at 582; Alexander, 469 U.S. at 292-94.

B. Regulatory Background

EPA's regulations implementing Title VI, promulgated under the authority of Section 602, are codified at 40 C.F.R. Part 7. Under these regulations, EPA's Office of Civil Rights (OCR) is responsible for investigating complaints alleging intentional discrimination and/or disparate impact discrimination lU1der Title VI in programs or activities receiving fmancial assistance from EPA. 40 C.F.R. § 7.20. EPA regulations governing the investigation of complaints of discrimination in EPA-funded programs and activities are codified at 40 C.F .R. § 7 .120. The regulations prohibit intentional discrimination:

No person shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination u11der any program or activity receiving EPA assistance on the basis of race, color, [or] national origin ....

40 C.F.R. § 7.30. More specifically, Section 7 .35 provides, in part, that recipients shall not "[d]eny a person any service, aid or other benefit of the program," "[p]rovide a person any service, aid or other benefit that is different, or is provided differently from that provided to others lU1der the program," or "[r]estrict a person in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, aid, or benefit provided by the program." 40 C.F.R. §§ 7.35(a)(I), (a)(2), and (a)(3).

EPA's Title VI regulatio11s also prohibit practices having a disparate impact on protected groups. Under Section 7 .35(b ), a recipient of EPA federal assistance is precluded from using criteria or methods of administering its programs which have the effect of subjecting individuals to discrimination because of their race, color, or national origin. 40 C.F.R. § 7.35(b).

C. Factual Bacl1:ground

i. Allegations in Complaint

On December 17, 1999, an administrative complaint was filed with EPA by the Center on Race, Poverty & the Environme11t on behalf of six environmental justice organizations and t\vo individuals, Aaron Head and--·1 See Letter from Luke Cole, Center on Race, Poverty & the Environment, to Carol Browner, EPA Administrator (December 17, 1999). The

1 The six environmental justice organizations are the African American Environmental Justice Action Network, Yerkwood Citizens Against Environmental Racism, the Ashurst Bar/Smith Community Landfill Opposition, the Lowndes County Friends of the Selma-to-Montgomery National Historical Trail, the Acmar/Moody Environmental Justice Society, and the Ram Branch Organization. See Letter from Luke Cole to Carol Browner (Dece1nber 17, 1999).

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complaint alleges that the Alabama Department of Environmental Management (ADEM) violated Title VI and EPA' s implementing regulations by discriminating against African Americans on the basis of race in issuing and modifying permits to operate municipal solid waste landfills in Alabarna.2 Id. Cornplainai1ts assert that "the permitting process is ADEM's method of discrimination," because it results (1) in adverse impacts to African American communities around the landfills, and (2) in disparate impacts because the landfills are permitted in African American co1nmunities when they serve mostly White communities. Id.

Specifically, complainants' allege that (1) ADEM discriminated against members of African American communities by issuing or modifying four municipal solid waste landfill permits to facilities in Lauderdale County, Jefferson County, St. Clair County, and Walker County that resulted in adverse and disparate impacts to the African American communities near these facilities; and (2) ADEM engaged in a pattern and practice of discrimination against African Americans by concentrating municipal solid waste landfills in predominantly African American communities throughout Alabama, when the landfills serve predominantly White communities. Id.

ii. ADEM's Initial Response to Complaint Allegations

Following EPA's December 27, 1999, notification to Mr. Cole and ADEM that it had received the Title VI complaint, ADEM submitted a response to EPA asserting that the complaint allegations were without merit and that the complaint should be dismissed. See Letter from James W. Warr, Director, ADEM, to Ann E. Goode, EPA Director, Office of Civil Rights (February 4, 2000). The details of ADEM's position are set out in Section IV below.

iii. Additional Information from the Center on Race, Poverty & tl1e Environment

In response to an EPA request made in May 2002, for any documents or evidence supporting the allegations and alleged impacts in the complaint, the Center on Race, Poverty & the Environment submitted additional correspondence and docmnents on October 22, 2002. See Letter from Caroline Fan·ell, Center on Race, Poverty & the Environment, to Nancy L. Tommelleo, EPA (October 22, 2002). The letter accon1panying the additional documents essentially reiterated the substance of the December 1999 complaint. Id. Additional information in the October 22, 2002, letter included footnotes to documents contained in the Appendix and a table on the demographics of Alabama communities near landfills and on the overall service area of the landfills. Id. Additional supporting documents consisted of the cover pages for the four permits issued by ADEM (Pineview, Florence, Ne\v Georgia, and Cedar Hill), EPA grant information for the State of Alabama, cover pages for permits for 26 other landfill facilities in Alabama, community opposition documents for the Tallassee Waste Disposal Center in Tallapoosa County, Alabama, the Lowndes County Landfill, and the Acmar Regional Landfill in

2 ADEM has received, and continues to receive, EPA financial assistance and, therefore, is subject to the requirements ofTitle VI and EPA's implementing regulations.

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St. Clair County, Alabama, and a 1996 engineering report for the Chilton County Landfill. Id. No supporting documents were included concerning alleged impacts from the Pineview, Florence, New Georgia, and Cedar Hill facilities.

iv. Acceptance of Complaint for Investigation

On December 11, 2001, EPA accepted two allegations for investigation after finding that the complaint met the four jurisdictional requirements set out in 40 C.F.R. Part 7.3 Those two allegations are:

(1) that ADEM violated Title VI and EPA 's implementing regulations by issuing and modifying permits for four municipal solid waste landfills in Lauderdale County, Jefferson County, St. Clair County, and Walker County which had the effect of adversely and disparately impacting African American residents in those communities; and

(2) that ADEM violated Title VI and EPA 's implementing regulati9ns by engaging in a pattern of discriminatio11 against African Americans because it is ADEM's practice to concentrate municipal solid waste landfills in predominantly African American communities, when the landfills service predominantly VVhite communities.

See Letter front Karen D. Higginbotham, Acting Director, EPA 's Office ofCivil Rights, to Mr. James W. Warr, Director, ADEM (December 11, 2001). On May 23, 2002, EPA informed both the complainants and the recipient that it was construing Allegation #1 to assert a claim of disparate impact discrimination and Allegation #2 to assert a claim of intentional discrimination. See Letter from Nancy L. Tommelleo, EPA, to Luke Cole, Center on Race, Poverty & the Environment (May 23, 2002); Letter from Nancy L. Tommelleo, EPA, to Gerald Hardy, ADEM (May 23, 2002). Neither complainants nor recipient have objected to these constructions.

3 These four jurisdictional requirements arc (1) that the complaint be in writing; (2) that it describe the alleged discriminatory acts which violate EPA's Title VI implementing regulations; (3) that it be filed within 180 days ofthe alleged discriminatory acts (unless OCR \Vaives the time limit for good cause); and (4) that the alleged violator was a recipient of EPA financial assistance at the time of the alleged discriminatory acts. 40 C.F.R. §§ 7.15; 7.120(b).

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II. ALLEGATION #1:

ADEM VIOLATED EPA'S IMPLEMENTING REGULATIONS BY ISSUING AND MODIFYING PERMITS FOR FOUR MUNICIPAL SOLID WASTE LANDFILLS IN LAUDERDALE COUNTY, JEFFERSON COUNTY, ST. CLAIR COUNTY, AND WALKER COUNTY WHICH HAD THE EFFECT OF ADVERSELY AND DISPARATELY IMPACTING AFRICAN AMERICAN RESIDENTS IN THOSE COMMUNITIES

Allegation #1 asserts four disparate impact claims arising from ADEM's issuance and modification of four pennits for municipal solid \Vaste landfills in four separate Alabama counties. Complainants contend that ADEM's method of permitting municipal solid waste landfills resulted i11 adverse and disparate impacts on African American residents around the four landfills. Those adverse impacts were generally alleged to be noise, odor, flies, wild animals, air pollution, traffic, and fear of groundwater contamination. See Letter from Luke Cole, Center on Race, Poverty & the Environment, to Carol Browner, EPA Administrator (December 17, 1999); Letter from Caroline Farrell, Center on Race, Poverty & the Environment, to Nancy L. Tommelleo, EPA (October 22, 2002).

A. Alleged Actions by ADEM

Complainants contend that the pe1mit actions by ADEM which triggered Title VI violations were the following:

• June 25, 1999, permit modification approval for the Florence Municipal Solid Waste Landfill (Lauderdale County); •June 25, 1999, permit modification approval for the New Georgia Landfill (Jefferson County); •September 9, 1999, permit modification approval for the Cedar Hill Landfill (St. Clair County); and •October 28, 1999, permit renewal and reissuance for the Pinevie\v Lai1dfill (Walker County).

See Letter from Luke Cole, Center on Race, Poverty & the Environment, to Carol Browner, EPA Administrator (Dece1nber 17, 1999). The complaint and supplemental correspondence contain no other specific information on these triggering actions or on their relationship to the alleged adverse impacts, but complainants generally allege that "the permitting process is ADEM's method of discrimination," and the effect of this permitting process is that "African Americans and other people of color will bear disproportionate impacts from landfill operations." Id.

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B. Alleged Adverse Impacts

Complainants generally allege that adverse impacts from landfills are noise, odor, flies, wild animals, air pollution, traffic, and fear of groundwater contamination. Id,' Letter from Caroline Farrell, Center on Race, Poverty & the Environment, to Nancy L. Tommelleo, EPA (October 22, 2002). They further generally assert that:

[a]ll stages of landfill operation are associated with several environmental problems and health hazards. I-Iauli?g garbage to the site is known to cause highway congestion, highway 11oise and accidents, as well as spills of garbage along trai1sportation routes. Once at the landfill, lines to dump trash cause similar impacts - highway congestion, noise, and accidents. Even dumping the garbage creates noise. After the trash is dumped, it remains in the landfill attracting flies and rodents. ill addition, odors from the garbage and dust kicked up by the dumping cause air pollution. Uncovered garbage plus rain water generates leachate which could contribute to groundwater contamination. Treating the leachate can also cause air pollution. Fi11ally, as the garbage sits and gets compressed with more garbage, gases form, causing more air pollution.

Letter/ram Caroline Farrell, Center on Race, Poverty & the Environment, to Nancy L. Tommelleo, EPA (October 22, 2002) (citing George Noble, Siting Landfills and Other LULUs 21 (1993)).

As for adverse impacts from the Pineview Landfill, complainants specifically state that:

• potential groundwater contamination from the Pineview Landfill "contributes to tl1e psychological impact of the dump - fear that the community's health is being adversely affected by the landfill;"

• because the Burnt Cane Creek runs past the Pineveiw Landfill and into the drinking water for residents, tl1ere is concern for drinl(ing water;

• becal1se of concern for potential contamination from the Pinevie\v Landfill, residents "cannot use their wells nor can they have vegetable gardens;"

• because of a new highway that "is being constructed for trucks that will run through Yerkwood, called Corridor X," there is a concern for safety and "the increase in noise, traffic, accidents, and filth from the trucks;" and

•there are concerns over the i11crease in tl1e number of rodents, birds, and other animals in the area due to the Pinevie\V Landfill. Id.

For the Florence Lru.1dfill, complai11ants specifically state that, although the landfill is currently "considered to be a state of the art landfill with mitigation measures over and above

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ADEM regulations such as monitoring wells since the landfill is close to a creek," it formerly generated odors and "consistent dangerous truclc traffic." Id. Complainants assert that these former impacts were from "the original" site of the landfill in an African American community rather than from the current site (current at least as of June 1999) of the landfill in a neighborhood "comprised of both whites and African Americans." Id. No other information on this "former" site of the Florence Landfill and its impacts or on the "current" site and its impacts is provided by complainants.

C. Alleged Disproportionate Impact

Complainants assert that African Americans in Alabama "have been designated hosts to these municipal solid waste landfills, bearing a disproportionate share of the state's environmental dangers." See Letter from Caroline Farrell, Center on Race, Poverty & the Environment, to Nancy L. Tommelleo, EPA (October 22, 2002). This disproportionate share is apparent, according to complainants, because ADEM's permitting actions for landfills allows landfills which primarily serve White communities to be located in African American communities. Specifically, complainants contend that "by granting permits to municipal solid waste landfills in predominantly African American comm1mities, when sucl1 landfills have a service area which is predominantly white communities, ADEM has administered its program in such a \Vay as to discriminate against people based on race, color, and national origin, in violation of Title VI." See Letter from Luke Cole to Carol Browner, EPA Administrator (December 17, 1999). Similarly, complainants note in their supplemental material that "the discriminatory impact created and sanctioned by ADEM's actions - where landfills with service areas made up primarily of white Alabama residents are hosted by African American residents - is a clear violation of Title VI as implemented by EPA regulations." See Letter from Caroline Farrell, Center on Race, Poverty & the Environment, to Nancy L. Tommelleo, EPA (October 22, 2002).

In support of this alleged disparity, complainants present (in their October 2002 supplemental material) demographic data, based on the 1990 Census, in a radius of one mile, three miles, and five 1niles around each of the four landfills and for the service area for each of

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4 the four landfill permits. / 5 Complainants' data for the four landfills are based on "minority'' populations which include all non-White i11dividuals, not just African Americans.6 See Record of Communication from Nancy L. Tomme/lea, EPA, to Caroline Farrell, Center on Race, Poverty & the Environment (January 24, 2002). ill addition, complainants state that, for Pineview Landfill, the 300-person Yerlcwood community is 100% African American and is 1.5 miles "do\vnhill" from the Pineview Sanitary Landfill. See Letter from Luke Cole to Carol Browner, EPA Administrator (December 17, 1999). They also state that, for Pineview Landfill, Walker County is "just 7% people of color" and that the community "above the landfill is 100% White." Id. For the Florence Landfill, complainants clarify that the landfill "is currently [as of at least June 25, 1999] operating in a neighborhood comprised of both \Vhites and African Americans." See Letter from Caroline Farrell, Center on Race, Poverty & the Environment, to Nancy L. Tommelleo, EPA (October 22, 2002).

D. Summary of Recommendation

It is recommended that the disparate impact allegations for the four landfills which are the subject of Allegation #1 be dismissed. For both the Cedar Hill Landfill, which involved a modification to the permit allowing a 20-foot relocation of a background groundwater monitoring well, and the New Georgia Landfill, which involved a modification to the permit allowing a downgrade of the facility from a Subtitle D municipal solid \Vaste landfill to a construction/demolition-only landfill, no causal connection could be established between the modifications at issue and complainants' alleged adverse impacts. Since these modifications do not involve actions related to the alleged impacts identified in the complaint, they cannot form the basis for a fmding of noncompliance with EPA's Title VI regulations.

4 Complainants caveat their demographic data, which is based on EPA 's Land view III Program, by asserting that the 1990 Census undercounted African Americans and that "it is very possible that the Landview Program has too broad a focus and does not accurately reflect the demographics of the community. Landview only has demographic information to the Census Block level. Since the landfills do not neatly fit within such blocks, the Landview Program estimates the population within a particular radius based on the percentage of the census block within the radius. This can lead to bad data. For example, if Census Block A is 50% Black and 50o/o White, but all the blacks live next to the dump and no whites do, Landview will still tell us the demographics are 50% Black and 50% White, although 100% of the impact is on blacks." See Letterfrom Caroline Farrell, Center on Race, Poverty & the Environment, to Nancy L. Ton1mel/eo, EPA (October 22, 2002).

5 In addition, complainants use the one-mile, three-mile, and five-mile references because they believe that such distances provide a good indication of minority populations around landfills and how they are distributed over these distances. See Record of Con1munication from Nancy L. To111melleo, EPA, to Caroline Farrell, Center on Race, Poverty & the Environ1nent (January 24, 2002).

6 In addition to the landfills which are the subject of Allegation #1, complainants also present the same kind of demographic information on twenty-eight other landfills in Alabama which they contend are either operating or have pennits pending before ADEM. Five ofthese landfills (none ofwhich involve the landfills at issue in Allegation #I) have incomplete information on the Chart (four for lack of service area information and one marked as ''not operational"). See Letter from Caroline Farrell, Center on Race, Poverty & the Enviro1unent, to Nancy L. Tommelleo, EPri (October 22, 2002).

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For the Florence Landfill and the Pineview Landfill, no disproportionate impact on African Americai1s living around these landfills was identified. Using a one-mile proximity analysis, based on 2000 Census Data, EPA compared the percentage of African Americans within the one-mile proximity radius of each facility to the percentage of African Americans in the service area of each landfill and to the percentage of African Americans in the State of Alabama (26%) to determine whether African Americans near the landfills were disproportionately affected by potential impacts. This one-mile proximity radius analysis revealed that the percentage of African Americans within one mile of the Florence Landfill is 6.8% and the percentage of African Americans in the service area of the Florence Landfill is 19.3o/o.

The one-mile proximity analysis for the Pineview Landfill revealed that the percentage of African Americans living within one mile is 0.2%, and the percentage of African Americans in the Pineview Landfill service area is 26.4%. In addition, to the extent that citizen complaints in ADEM's Pineview Landfill permitting file suggested an impact zone of greater than one mile for the Pineview Landfill (approximately six times larger that the Florence Landfill), no disparity of potential impact \Vas revealed when using a two-mile (3.2% African Alnerican), three-mile (7 .9% African American), or four-mile (7 .1 % African American) proximity radius around the Landfill. Also, no evidence was discovered to suggest that alleged impacts from the Pineview Landfill affected only the Yerkwood co1nmunity (asserted to be 100% African American) to the exclusion of the other neighborhoods surrounding the Landfill.

For both the Florence Landfill and tl1e Pineview Landfill, the percentage of African Americans within one mile (and for Pineview up to four miles) of each facility is significantly lower than the percentage of African Americans in each Landfills' service area and in the State. These significantly lower percentages do not support a fmding of disparity of potential impacts. Because no disparity of potential impacts was found, no adversity analysis was made.

III. ALLEGATION #2:

ADEM VIOLATED TITLE VI AND EPA'S IMPLEMENTING REGULATIONS BY ENGAGING IN A PATTERN AND PRACTICE OF INTENTIONAL DISCRIMINATION BY CONCENTRATING MUNICIPAL SOLID WASTE LANDFILLS IN PREDOMINANTLY AFRICAN AMERICAN COMMUNITIES IN ALABAMA, WHEN THE LANDFILLS SERVICE PREDOMINANTLY WHITE COMMUNITIES.

A. Alleged Actions by ADEM

In their December 1999 complaint, complainants state that ADEM "has issued permits for thirty-one municipal solid waste landfills throughout Alabama ... ," and that "all of these landfills are located in predominantly African American communities, but serve predominantly \Vhite communities." See Letter from Luke Cole, Center on Race, Poverty & the Environment, to

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Carol Browner, EPA Administrator (December 17, 1999) (emphasis added). Complainants generally assert that ADEM violated Title VI and EPA's implementing regulations by "repeatedly permitting municipal solid waste landfills in African American communities, although the service areas for these landfills are predominantly Wlrite." Id. Through their 2002 supplemental correspondence, complainants modify their position by stating that, of the thirty­ one landfill permits issued by ADEM, "most of these landfills are located in predominantly African American communities, but serve predominantly white communities." See Letter from Caroline Farrell, Center on Race, Poverty & the Environment, to Nancy L. Tommelleo, EPA (October 22, 2002) (emphasis added}.

In support of this "pattern and practice" allegation, complainants present partial demographic information for thirty-two landfills in Alabama and complete demographic information for twenty-six of those thirty-two landfills (including the four landfills addressed in Allegation #1). Id. As in Allegation #1, the data is based on the 1990 Census and analyzes the percentage of "minority'' populations in a radius of one mile, three miles, and five miles around each of the thirty-two landfills and for the service area for twenty-seven of the thirty-two permits Id.

B. Summary of Recommendation

It is recommended that Allegation #2 be dismissed. EPA has found no direct or circumstantial evidence of intentional discrimination in its investigation of ADEM's permitting process for municipal solid waste landfills in Alabama. Because complainants' demographic data are based on 1990 Census Data and uses the broader "minority" category, it is potentially skewed and was determined to be unreliable for use as circumstantial evidence of intentional discrimination. Further, EPA 's own demographic data on a representative sample of 13 of 29 (44.8 %) of the pennitted municipal solid waste landfills in Alabama do not indicate a pattern of permitting which concentrated landfills in primarily Africm1 American communities and do not constitute circumstantial evidence of intentional discrimination by ADEM.

For example, at a 011e-mile proximity radius, EPA's data indicate that over 2/3 (or 69.3%) of the representative thirteen landfills \Vere not located in primarily African American communities when compared with service area demographics. In addition, if any demographic data did exist which supported complainants' assertion as to the concentration of landfills in Alabama, such data would be outweighed by evidence indicating that ADEM does not (and did not) consider race, color, or national origin in the processing of any of its municipal solid waste landfill permit applications.

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IV. POSITION STATEMENT FROM THE RECIPIENT

In its February 4, 2000 response, ADEM contends that these complaint allegations are without merit and that the complaint should be dismissed. See Letter from James W fVarr, Director, ADEM, to Ann E. Goode, EPA Director, Office of Civil Rights (February 4, 2000). ADEM presents three arguments in support of this position on complaint dismissal:

1. Alabama's statutory scl1eme for landfill permitting requires local governments (not ADEM) to consider impacts to affected communities in locating landfills;

2. No reasonable alternative exists to locating landfills in rural areas which may have large minority populations; ai1d

3. No adverse impacts exist with regard to properly regulated landfills.

Id.

1. Alabama's Statutory Landfill Per1nitting Sche11ie Precludes ADEM's Co11sideratio1i ofSiti1tg I1npacts. ADEM denies any discrimination in its permitting process and contends complainants' allegation is based on the "mistaken belief that ADEM is responsible for siting landfills within the state ...." See Letter from James W. Warr, Director, ADEM, to Ann E. Goode, Director, EPA Office of Civil Rights (February 4, 2000). ADEM asserts that, under Alabama law, ADEM is not responsible for deciding where facilities will be sited and cannot consider local social and economic impacts from siting decisions. Rather, under Alabama law, both the technical location standards and the local socio-economic issues arising from the siting of a facility are considered in the solid waste disposal permitting process, but the responsibility for these considerations are split between the local governments and ADEM. Id. ADEM's position is that the Alabama Legislature, through its 1989 amendment to the Alabama Solid Wastes Disposal Act, mandated that the local impact assessment for a landfill (which includes pubic health and safety, and social and economic impacts) be done by local governments (not by ADEM) through the local siting part of the permitting process. Id. In support of this assertion, ADEM cites to the Solid Wastes Disposal Act's provisions which set out the landfill permitting process scheme and require local governments to consider specific socio-economic factors when generally identifying the location of landfills in their jurisdictions and when considering specific landfill permit applications. Id. (citing Code ofAlabama (1975) §§ 22-27-47(b)(11) and 22-27- 48(a)).

ADEM states that its duty under Alabama law is solely to determine "the technical suitability of the site selected." Id. It also notes that, under this split in permitting responsibilities, ADEM "has no authority to require a change in site location once the local governing body has made its siting decision." Id. ADEM contends that all it can do "is deny a permit if the site is environmentally unsuitable for a landfill" and that, as a consequence, "the permit applicant can then solicit local approval for an alternative site, and, after the appropriate

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notice provisions are met, the local government can act on that application." Id. ADEM concludes that"[o ]nly if local government approval on the alternate site is received can ADEM consider the alternate site." Id.

According to ADEM, the reason for Alabama's split in landfill permitting responsibilities is to "allow local host goven1me11ts the ability to plan for their future solid waste disposal needs and to approve the siting of solid waste landfills within their own local jurisdictions." Id. ADEM notes that Alabama's philosophy behind this reason is that landfill siting decisions "are best made on a local level to ensure that all citizens are represented and that communities can decide for themselves as to whether or not to site a landfill in their area, as well as the service area oftl1e landfill." Id. ADEM states that it believes these procedures "ensure that solid \Vaste landfill permits do not have a discriminatory outcome" and that a remedy exists for challenging local siting decisions either through "the election process or a legal challenge against the local governing body for failure to consider public input and the six siting factors required by [the Act]." Id.

2. No Reaso11able Alternative to R11ral La11dfill Siting. Aside from Alabama's statutory scheme for landfill permitting, ADEM also contends that as a result of Alabama demographics, "most of the reasonably available land for landfills is located in rural areas which may have large minority populations," and there is no reasonable alternative to siting landfills "in those areas where land is available for such activities." Id. Rather, ADEM states that:

the alternative to siting landfills in those areas where land is available for such activities (generally rural areas which may have large minority communities) would be to deny permits in areas with a minority population. Realistically, this would halt the permitting of solid waste landfills in Alabama. If landfill permits cannot be issued or renewed, the problem of disposing of solid waste will become critical, and we would expect to see more unauthorized dumps than currently exist. These unauthorized dumps would most likely occur in poor communities and would have a much greater adverse impact on those comn1unities than regulated landfills.

Id.

3. No Adverse lnipacts fro1n Properly Regulated La11dfills. Finally, with regard to complainants' allegations of adverse impacts from landfills, ADEM asserts that Subtitle D solid waste regulations are protective of human health and the environment. Id. ADEM contends that, where properly administered and enforced, "there should be no adverse impact upon any community in which a landfill is located." Id. With regard to specific allegations "that the dumping of garbage will create noise, that the landfills will attract flies and rodents, that the odors will emanate and that dust will create air pollution," and that there is "potential for leachate to contribute to groundwater pollution, possible air pollution from treating leachate, and air pollution from gases forming as a result of compression," ADEM asserts tl1at "Subtitle D regulations are designed to prevent the attraction of rodents and flies, to minimize odors, and to

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prevent air pollution caused by dust, treatment of leachate, and gases. Those regulations also require stringent measures to avoid groundwater contamination from leachate." Id.

For allegations concerning "high\vay congestion and noise," ADEM asserts that these alleged impacts are "not environmental issues but are local land use planning issues which are best dealt with at the local level and are certainly not within ADEM's (or EPA's, for that matter) jurisdiction." Id.

V. METHODOLOGY OF THE INVESTIGATION

In order to assure that EPA had tl1e necessary information to assess the allegations raised by complainants, the Agency undertook a comprehensive effort to collect data. That effort began by gathering all of the information that the Agency had in its possession relevant to the complaint. This included all information contained in EPA 's Office of Civil Rights' files for this complaint. Permit file reviews for the Florence, New Georgia, Cedar Hill, and Pineview Landfills \Vere also conducted at ADEM's office. In addition, ADEM staff answered EPA permitting and process questions as they arose throughout the investigation and provided detailed information on current landfill permits and landfill locations in Alabama. Substantial research was also undertaken to analyze potential landfill impacts utilizing available government information, including EPA teclmical information and background documents. Thorough review of both EPA and Alabama regulations of municipal solid waste landfills \Vas also made.

Finally, although a site visit to areas surrounding the Pineview Landfill \Vas made, efforts to interview complainants concerned with the Pineview Lru1dfill proved unsuccessful. Several attempts were made over the course of four months, through counsel for complainants, to obtain names of potential interviewees, but ultimately, no names were provided. Attempts to independently contact local residents surrounding the Pineview Landfill were also unsuccessful.7

7 EPA contacted complainants' cOWlsel on October 17, 2002, and December 3, 2002, seeking local citizen contacts for the Yerkwood Commllility (Pineview Landfill). No contact information was provided. In addition, on December 10, 2002, EPA attempted to contact the Chair1nan of the Citizens Advisory Committee for the Pineview Landfill (as identified in EPA's review of ADEM's pennit files}, but the telephone call was not retumed. Finally, in January 2003, EPA contacted the Alabama African American Environmental Justice Action Network, one of the named complainants, for assistance in identifying local citizen contacts for the Yerkwood Commllility. No contact was provided. EPA's site visit took place on January 28, 2003.

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VI. FINDINGS RELATING TO STATUTORY/REGULATORY PROGRAM

A. Munic1pal Solid Waste Landfills - General

1. "Municipal Solid Waste Landfills" are a type of landfill that receives household waste (including household hazardous waste in the form of paint, cleaners, oils, batteries, and pesticides that contain hazardous components) or other wastes such as commercial solid waste, nonhazardous sludge, small quantity generator waste, and industrial solid waste. See USEPA Office of Solid Waste -Municipal Solid Waste "Basic Facts" Sheet; see also Safer Disposal for Solid Waste: The Federal Regulations tor Landfills, EPA Publication EPA/530 SW-91 092 (March 1993).

B. Potential Impacts from Municipal Solid Waste Landfills

Potential impacts fro1n municipal solid waste landfills include:

2. groitndwater contamination: contamination of groundwater Can occur ifthe landfill is not designed to preve11t waste releases into groundwater or detect them when they occur. See Criteria for Solid Waste Disposal Facilities: A Guide for Owners/Operators (EPA Publication OS-305, March 1993). Landfill leachate is the primary potential source of water pollution from a landfill. See 49 Fed. Reg. 9905, 9909 (March 12, 1996) (EPA Final Rule: Standards of Performance for New Stationary Sources and Guidelines for Control o(Rr:isting Sources: Municipal Solid Waste Landfills). Landfill leachate is a liquid generated during the waste decomposition process. See 65 Fed. Reg. 66672, 66675 (November 7, 2000) (EPA Proposed Rule: National Emission Standards for Hazardous Air Pollutants: Municipal Solid Waste Landfills).

•potential healtll/welfare impacts: potential human health risk is of drinking contaminated groundwater; potential welfare impacts from contaminated groundwater include loss of groundwater resources, loss of property value within the vicinity of the contaminated groundwater, and loss of "existence" value of the groundwater (this is the value people put on pristine resources, even if they do not intend to use these resources). See 56 Fed. Reg. at 50985 (October 9, 1991) (EPA Final Rule: Solid fVaste Disposal Facilitv Criteria).

•potential area ofimpact: Although bydrogeologic conditions vary from site to site, a one-mile radius around the landfill has been used as a regulatory gauge for human health impacts from drinking contaminated groundwater. For example, in EPA's Risk and Resource Damage Analysis for the 1991 Final Subtitle D regulations, EPA assumed no human health risks from contaminated groundwater where landfills had no population or no drinking water wells witbi11 a one-mile radius. See 56 Fed. Reg. 50978, 50985 (October 9, 1991); 53 Fed. Reg. 33314,

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33319 (August 30, 1988) (EPA Proposed Rule: Solid Waste Disposal Facility Criteria). In addition, EPA's 1991 Subtitle D regulations require that landfills be designed to meet drinking water standards at a "relevant point of compliance." This "relevant point of compliance" must be no farther than 150 meters (less than Vs of a mile) from the landfill unit's boundary and on land owned by the landfill owner. See 56 Fed. Ref>. 50978, 50996; 40 C.F.R. § 258.40(d). EPA explains that this distance was set because "EPA expects that in 1nost instances, there will be little potential for human exposure to conta1ninated ground \Vater that remains within the property line (and no more than 150 meters from the unit boundary) of a MSWL [municipal solid waste landfill]." See 56 Fed. Ref{. 50978, 51068.

State regulations also support a one-mile radius area of potential impact for groundwater containinatio11.8 Alabama's Solid Waste Management Plan notes that, with regard to health and safety impacts from groundwater, "distances on the order of one mile in the same aquifer as the facility are typically examined." See Alabama's Solid ivaste Managenient Plan, Phase I at p.8-7 (BCM Project 05- 0297-01) (November 1989); Ala. Admin. Coder. 335-13-9-.02. In accordance with this requirement, the Cedar Hill Landfill hydrogeologic site evaluation report refers to one mile as the area "immediately adjacent" to the landfill. See Letter from Thomas E. Driver, P.E., to Bill Hodges, P.E. (April 30, 1992).

3. s11rface water conta11ii11ation: Rivers, lakes, and streams are important sources of drinking water, recreational resources, and habitat for a wide variety of fish and other aquatic organisms. See 53 Fed. Reg. 33314, 33339. Solid waste disposal has led to surface water contamination from run-off of leachate, accidental spills, and drift spray occurring at landfills. Id.

•potential !tealth/welfare i111pacts: potential human health risk is exposure to contaminated surface water (either because surface water is used for drinking water or for fishing or gardening); potential welfare impacts from contaminated surface water include the loss of surface water resources, loss of property value \vithin the vicinity of the conta1ninated surface water, and loss of"existence" value of the surface water. Id.

•area ofpotential impact: Surface water tends to flow topographically, however, no reference to a calculated area of potential impact for surface \Vater contamination could be found. EPA 's Risk and Resource Damage Analysis for the 1991 Final Subtitle D regulations specifically did not consider benefits to increased protection of surface water from the 1991 regulations and so provides no information on potential impact distances. See 56 Fed. Reg. 50978, 50985.

8 Alabama's Solid Wastes Disposal Act and implementing regulations are discussed in detail in Section VI(D).

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4. landfill gas e111issio1ts: Landfill gas emissions can, at certain levels, have adverse effects on both public health and welfare. See 49 Fed. Reg. 9905, 9906. These landfill gas emissions or LGEs can contain methane, carbon dioxide, and more than 100 different non-methane organic compollllds (NMOCs), such as vinyl chloride, toluene, and benzene. Id.

•potential !1ealtll/welfa1·e impacts: Specific health and welfare effects from landfill gas emissions are as follows: NMOCs contribute to ozone formation; some NMOCs are knoWI1 or suspected carcinogens, or cause other non-cancerous health effects;9 Nl\10C can also cause an odor nuisance; methane emissions present a well-documented danger of fire and explosion on-site and off-site." 10 Id.

• area ofpotential i111pact: EPA 's Background Information Document to its Clean Air Act landfill gas emission regulation notes that "landfill gases have reportedly migrated as far as 300 meters [less thai1 "Yt mile] into structures located on or near the landfill." See EPA 's Air Eniissionsfrom Municipal Solid Waste Landfills - Background Information for Proposed Standards and Guidelines (EPA-45013-90- 011 a) (March 1991).

5. disease: Animals or insects tl1at carry diseases (referred to as "disease vectors") can be attracted to decaying waste at landfills. These disease vectors include rodents, flies, mosquitos, or other animals or insects capable of transmitting disease to humans. Application of cover at the end of each operating day generally controls or prevents vectors. See EPA 's Criteria for Solid Waste Disposal Facilities: A Guide for Owners/Operators (EPA/530-SW-91-089) (March 1993); Undated Pineview Sanitary Landfill August 7-8, 1995, EPA Region 4 Site Visit Memorandum (no author).

9 Volatile organic compound (VOC) emissions contribute to ozone formation which can result in adverse health effects to human health and vegetation. Ozone can penetrate into different regions of the respiratory tract and be absorbed through the respiratory system. See 49 Fed. Reg. 9905. Ozone can lead to alterations in pulmonary function, aggravation of pre-existing respiratory disease, damage to lung structure, and adverse effects on blood enzymes, the central nervous system, and endocrine systems. Id. at 9905, 9917. "The health effects of exposure to HAPs [hazardous air pollutants] can include cancer, respiratory irritation, and damage to the nervous system." Id. at 9905. Also, "in reviewing limited emissions data from MS\V [municipal solid waste] landfills, EPA identified both known and suspected carcinogens such as benzene, carbon tetrachloride, chloroform, ethylene dichloride, methylene dichloride, perchloroethylene, trichloroethylene, vinyl chloride, and vinylidene chloride .... EPA attempted to apply statistical methods to the limited data to generate the average annual increased cancer incidence and the maximum individual risk (IvllR). In evaluating the result of the calculations for annual incidence and MIR, the EPA could not determine reasonable estimates of either an annual incidence or the MIR. The EPA concluded ... that the uncertainties in the database are too great to calculate credible estimates of the cancer risks associated with MSW landfills." See 49 Fed. Reg. 9905, 9917.

10 "The EPA has documented many cases of acute injury and death caused by explosions and fires related to municipal landfill gas emissions. In addition to these health effects, the associated property damage is a welfare effect. Furthermore, when the migration of methane and the ensuing hazard are identified, adjacent property values can be adversely affected." See 49 Fed. Reg. 9905, 9917.

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•potential health/welfare i111pacts: 1-Iuman health impacts arise from disease carried by disease vectors. See 56 Fed. Reg. 50978, 51007. Municipal solid wastes are la1own to contain pathogenic bacteria, parasites, and viruses that can infect humans and animals. See 53 Fed. Reg. 33314, 33336. These wastes also provide food and harborage for rodents, flies, and mosquitos that then transmit disease organisms to humans and animals. Id.

•area ofpotential i111pact: No reference to a specific area of impact has been found in EPA documents or literature. However, the Consent Decree entered into in private litigation involving the Pinevie\v Landfill contains a settlement term requiring the operator of the landfill to use ''its reasonable efforts to inspect all complaints within Yi mile of the Landfill for pests (rodents or birds infestation) ...." See Consent Judgment and Decree, Ralph Beavers. et al. v. County of Walker, Alabama, et al., No. CV-91-750 (Circuit Court of Walker County, Alabama, June 29, 1995).

6. odors: Municipal landfill gas is generated largely by bacterial decomposition of organic materials in the municipal solid \vaste. As the decomposition proceeds, odiferous compounds can escape from the landfill through cracks in the landfill surface cover. See EPA 's Air Emissions from Municipal Solid Waste Landfills - Background Information for Proposed Standards and Guidelines, EPA-45013-90-0lla (March 1991). Other possible sources of odors from municipal solid waste landfills are the actual wastes themselves. Household wastes that are often disposed in municipal solid waste lai1dfills include chemicals in cleaners, paints, pesticides, and adl1esives. These consumer products often contain solvents or other compounds with distinctive odors. Id. Thus, both the nature of the wastes themselves and the gaseous decomposition process contribute to unpleasant odors. See 49 Fed. Reg. 9905, 9917.

•potential /1ealt/J/welfare i111pacts: According to EPA, "[v ]arious welfare effects maybe associated with odors, but due to the subjective nature of the impact and perception of odor, it is difficult to quantify these effects. Studies indicate that unpleasant odors can discourage capital investment and lower the socioeconomic status of an area. Odors have been shown to interfere with daily activities, discourage facility use, and lead to a decline in property values, tax revenues, and payroll." See 49 Fed. Reg. 9905, 9917.

• area ofpotential i1npact: Transport of odors from a landfill to neighboring sites is affected by such factors as the rate of gas production, operating practices (refuse coverage depth and materials used), and the local topography. See EPA 's Air Emissions from Municipal Solid Waste Landfills - Background Information for Proposed Standards and Guidelines, EPA-45013-90-0lla (March 1991). No technical information or study was found indicating a specific zone of odor impact from landfills or from any other source. I-Iowever, odors arise from landfill gases and as noted above, EPA's Background Information Document to its Clean Air

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Act landfill gas emission regulation states that "landfill gases have reportedly migrated as far as 3 00 meters [less than 1/.i mile] into structures located on or near the landfill." See EPA 's Air Emissions from Municipal Solid Waste Landfills - Background Information for Proposed Standards and Guidelines (EPA-45013-90- 011 a) (March 1991). In addition, ADEM's Pineview Landfill permitting file contained a complaint of odor "up to a mile a\vay or more." See Letter from Joe D. White, to Mr. Russell Kelly, ADEM (August 18, 1994).

7. noise and traffic (safety): Noise from landfill operations and increased truck traffic on access roads, as well as traffic congestion and increased traffic accidents from increased truck traffic have been identified by complainants as general landfill impacts. See Letter from Caroline Farrell, Center on Race, Poverty & the Environment, to Nancy L. Tonimelleo, EPA (October 22, 2002); Letter from Luke Cole, Center on Race, Poverty & the Environment, to Carol Browner, EPA Administrator (Dece1nber 17, 1999).

•potential health/Jvelfare inipacts: Noise can cause hearing loss and interfere with human activities at home and work. See EPA 's InfOrmation on Levels o( Environmental Noise Requisite to Protect Public Health and Welfizre. EPAIONAC 55019-74-004 (March 1974). Noise can also be a biological stressor which causes annoyance and disrupts communication, performance capability, and sleep. Id. Botl1 EPA 's and the Federal Highway Administration's recommended design 12 noise levels for outside of residences is 55 dBA. ll/ See U.S. Department of Transportation's Fundamentals and Abatement ofHigh1vay Traffic Noise. No. FHWA-HH1-HEV-73-7976-1 (June 1973), at 1-36; See EPA 's Information on Levels o(Environmental Noise Requisite to Protect Public Health and Welfare. EPAIONAC 55019-74-004 (March 1974) at p.27. No infonnation on traffic safety issues could be located.

•area ofpotential inipact: No studies have been found which address the potential area of impact from noise or safety associated with increased traffic from landfill operations. It would appear, however, that the potential impact area for noise necessarily depends on the amount of traffic increase attributable to the landfill, the location of the roads leading to the landfill vis-a-vis the surrounding

11 Normal voice levels produce sound levels of about 60-70 decibels at close distance. See U.S. Departnient of Transportation's Fundamentals and Abatement o(Highwav Trafflc Noise. No. FHWA-HH1-HEV-73- 7976-1 (June 1973) at 1-1. "The faint rustling of the grass or of leaves in the trees or a weak whisper might produce a sound level of about 20 decibels ...." Id.

12 EPA's recommended levels are not standards, criteria, regulations, or goals. Rather, "they should be viewed as levels below which there is no reason to suspect that the general population will be at risk from any of the identified effects of noise." See EPA 's Inforniation on Lei•els ofEnvironmental Noise Requisite to Protect Public Health and Welfare. EPAIONAC 55019-74-004 (fl.farch 1974) at p.27. These levels were derived by EPA "without concern for technical or economic feasibility, and contain a margin of safety to ensure their protective value." Id.

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communities, and the affect that distance has on sound created by the traffic. As noted directly below, general Federal Highway Administration data suggest that a one-mile impact zone from noise associated with increased traffic may be appropriate, although ADEM's Pineview Landfill permitting file contains a complaint of noise associated with the landfill "up to two miles away." See Letter from Joe D. White, to Mr. Russell Kelly, ADEM (August 18, 1994).

Federal Highway Administration data indicate that the noise emission level of a typical diesel truck averages 82 dBA. See U.S. Department of Transportation's Fundamentals and Abatement o(Highway Traffic Noise. No. FHWA-HHl-HEV- 73-7976-1(June1973), at 2-3. In addition, the Federal Highway Administration has found, as a general matter, that the cumulative effects ofbl1ildings, trees, terrai11, wind, humidity, and temperature affect the propagation of sound over large distances (\vhich the Federal Highway Administration defmes as "over 1000 feet"). Id. at 1-10. In research analyzing the affect of distance on sound, the Federal Highway Administration has also found that, as a general rule, sound spreads out uniformly as it travels away from the source, and the sound level drops off at the rate of3 - 6 decibels for each doubling of the distance. Id. at I- I 0, 1-27 thru 1-31. Using this general rule, the Federal Highway Administration calculates that sound reduction from a moving stream of diesel trucks, using a median drop-off rate of 4.5 dBA per double distance, is 35 dBA at 4,410 feet (just 3 over /4 of a mile). Id. at 1-34. Thus, at one mile from moving diesel trucks, the decibel level from those trucks would be approxi1nately 47 dBA, which is less than the 55 dBA recommended outside noise level for residences.

8. 1niscellaneous i1npact i1ifor11iation (representing a1iy otlier la1tdfill "area ofi111pact" inforniation foiind while revie1ving specific ADEM landfill permitti11gfiles):

• Jn their October 2002 supplemental correspondence, complainants state generally that the African American commUI1ities' homes that border directly on the landfill "experience the full impact from the operation." See Letter from Caroline Farrell, Center on Race, Poverty & the Environnient, to Nancy L. Tomme/lea, EPA (October 22, 2002).

•In ADEM's permitting file for the New Georgia Landfill, the solid waste disposal permit application indicates that a land use and zoning analysis was done for "a one mile radius" around the landfill. See New Georgia Landfill Permit Application (December 2, 1994).

C. EPA Regulations Addressing Municipal Solid Waste Landfills

9. EPA regulations address municipal solid \Vaste landfills primarily under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901 - 6992k, although landfill gas

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emissions from large landfills are regulated under the Clean Air Act (CAA), 42 U.S.C. §§ 7401 - 767lq. Storm water and NPDES permits can also be required under the Clean Water Act (CWA), 33 U.S.C. §§ 1251-1387.

10. RCRA. Disposal of"nonhazardous" solid \Vaste has been regulated under Subtitle D of RCRA since 1976. 13 These Subtitle D wastes include thirteen different types of waste streams, such as municipal solid waste, industrial \Vaste, and construction and demolition waste.14 See EPA Report to Congress: Solid Waste Disposal in the United States, EPA/530-SW-88-01 JB (October 1988). 15

11. In 1991, EPA promulgated revised and more stringent minimum federal criteria for municipal solid waste landfills. Codified at 40 C.F.R Part 258, these revised criteria set new minimum standards for municipal solid waste landfills to ensure the safe management of municipal solid waste and the protection of human health and the environment.16 The new regulations, effective on October 9, 1993, apply to all municipal solid waste landfills that are receiving waste on or after October 9, 1993. 17 See 56 Fed. Reg. 50978, 51000. The revised

13 RCRA was enacted in 1976 and its primary goal is to protect human health and the environment from the potential hazards of waste disposal. In addition, RCRA calls for conservation of energy and natural resources, reduction in waste generated, and environmentally sound waste management practices. See U.S.EPA Office ofSolid Waste Website - Municipal Solid Waste "Basic Facts."

14 The other waste streams are: household hazardous waste, municipal sludge, municipal waste combustion ash, infectious waste, waste tires, industrial nonhazardous waste, very-small-quantity generator hazardous waste, agricultural waste, oil and gas waste, utility waste, and mining waste. See EPA Report to Congress: Solid Waste Disposal in the United States, EPA/530-SW-88-01 lB (October 1988).

15 EPA first promulgated minimum national performance standards for municipal solid waste landfills in 1979, under the authority of Subtitle D ofRCRA. These minimum standards were established to ensure that "no reasonable probability of adverse effects on health or the environment" will result from solid waste disposal facilities or practices. See 56 Fed. Reg. 50978, 50979.

16 States and Tribes may adopt programs with requirements more stringent than the federal criteria. See Criteria for Solid Waste Disposal Facilities: A Guide (Or Owners/Operators (EPA Publication OS-305, ]!,[arch 1993).

17 EPA's revised Subtitle D regulations (part 258) do not apply to landfills that accept only nonhazardous industrial waste, such as construction and demolition debris. See EPA 's Criteria for Solid Waste Disposal Facilities: A Guide for Owners/Operators, EPA/530-SW-91-089 (March 1993). Construction and demolition waste generally includes mixed lumber, roofing and sheeting scraps, broken concrete, asphalt, brick, stone, plaster, wallboard, glass, piping, and other building materials. See EPA Report to Congress: Solid Waste Disposal in the United States, EPA/530-SW-88-01 JB (October 1988). Management options for construction and demolition waste include recycling, reclaiming, or direct disposal in municipal, industrial, and demolition debris landfills and waste piles. Id. Because most of this waste is "generally viewed as requiring less stringent disposal than MSW [municipal solid waste], special demolition debris landfills are often used." Id. Construction and demolition landfills continue to be subject to the general and less stringent requirements of part 257. See 40 C.F.R. Part 257. Under Part 257, construction and demolition landfills are not required to have liner and leachate collection systems, groundwater

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standards address six basic areas:

•Location (airport safety, floodplains, wetlands, fault areas, seismic zones, and unstable areas); • Operation (keeping out hazardous waste, covering material and controlling disease vectors, controlling explosive gases, restricting access, controlling storm water and protecting surface water, restricting liquids, and controlling air emissions); • Design (for groundwater protection); • Groundwater monito1ing and corrective action; • Closure and post-closure care (frnal cover, continued groundwater monitoring, continued landfill gas monitoring, other maintenance); and •Financial assurance (available monies to correct possible environmental problems)

12. EPA Regulation o/Grou1id1vater. EPA's 1991 RCRA Subtitle D regulations include specific measures to prevent groundwater contamination including location restrictions (floodplain, fault area, seismic impact, and unstable area restrictions), operating (prevent disposal of hazardous material, storm \Vater nm-on and run-off restrictions) and requirements for final closure and post-closure care. Id. In addition, design criteria in the 1991 regulations are focused on prevention of groundwater contamination. Designs must meet drinking water standards (e.g., ensure that Maximum Contaminant Levels (MCLs) will not be exceeded in the uppermost aquifer at a "relevant point of compliance.").18 MCLs are set out in EPA's regulations for twenty-four solid \vaste constituents, including arsenic, barium, benzene, mercury, lead, and vinyl chloride. See 40 CFR § 258.40 at Table I. Designs can either be ones approved by the State director and that meet EPA's MCLs, or can be the EPA-developed design which consists of a composite liner and leachate collection system. See 40 CFR §§ 258.40(a)(I) and (2).

13. The regulations also require groundwater monitoring systems, programs for sampling and analysis of groundwater, and corrective action. These criteria are set "as necessary to ensure that human 11ealth and the environment are protected." See Criteria for Solid Waste Disposal Facilities: A Guide (or Owners/Operators (EPA Publication OS-305, March 1993). In particular, groundwater monitoring wells must be installed in the appropriate places to accurately assess the quality of the uppermost aquifer: (!) hydrogeologically upgradient of the landfill before it has passed the landfill boundary (to determine background quality) and (2) at a relevant point of compliance (hydrogeologically down-gradient). These systems must be certified as adequate by a qualified groUI1dwater scientist or the director of an EPA-approved State program. Corrective action and financial assurance provisions are also contained in the regulations to ensure immediate and effective responses to any groundwater releases. Id.

monitoring systems, corrective action, closure and post-closure care procedures, or to provide financial assurance. Id.

18 This point is determined by the approved state director, but must be no farther than 150 meters from the landfill unit boWldary and on land uwned by the landfill owner. See 40 CFR § 258.40(d).

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14. EPA believes that the municipal solid waste landfill (MSWLF) rules achieve reduction in human health risks from drinking contaminated groundwater and that the benefit to the Subtitle D regulations is "preventing ground-water contamination that could lead to human exposure in the future, and avoiding loss of ground-water resources." Id. at 50985. In addition, ''EPA also believes that limiting contamination of ground-water from landfills will protect property values located within the vicinity of new landfills .... [and] by limiting releases to the environment, EPA believes that the final rule will protect the existence value of ground-water near landfills." Id. at 50986.

15. EPA Regulation ofSu1face water. EPA's RCRA Subtitle D regulations, at 40 C.F.R. § 258.7, require that landfills be operated in a way that ensures they do not release pollutants that violate the Clean Water Act. See EPA 's Criteria for Solid Waste Disposal Facilities: A Guide for Owners/Operators (EPA/530-SW-91-089)(March 1993). Point source discharges must be in compliai1ce with a National Pollutant Discharge Elimination System (NPDES) permit and any diScharges of non-point source pollution must be in conformance \vith ru1y established water quality management plan developed under the Clean Water Act. See 40 C.F.R. § 258.27. The regulations also prohibit landfills fi·om being located in wetland areas, unless certain conditions are met. See 40 C.F.R. § 258.12. Storm water must be controlled through run-on and run-off collection and control systems. See 40 C.F.R. § 258.26. The purpose of the run-on controls is to prevent (1) erosion, which may damage the physical structure of the landfill; (2) the surface discharge of wastes in solution or suspension; and (3) the down\vard percolation of run-on through wastes, creating leachate. See 56 Fed. Reg. 50978, 51054 (October 9, 1991). The run­ off requirement calls for the owner or operator to collect and control the run-off from the active portion of the landfill and handle the run-off in accordance with Clean Water Act requirements. Id. The run-off system must control, at a minimum, the \Vater volume resulting from a 24-hour, 25-year storm (which EPA believes is a design protective of human health and the environment). Id.

16. EPA Regulation of Odor. EPA's RCRA Subtitle D regulations address odors through daily cover and 1nethane gas emission requirements. See 40 C.F.R. §§ 258.21 and 258.23. In addition, for certain large landfills, odor reduction is achieved through air emission regulations requiring non-methane organic compound collection and control. See EPA 's Fact Sheet: Final Air Regulations for Municipal Solid Waste Landfills (March 1, 1996).

17. EPA Regulation ofDisease Vectors. EPA's RCRA Subtitle D regulations, at 40 C.F.R. § 258.22, require that each owner or operator of a municipal solid waste landfill prevent or control on-site disease vector populations using appropriate techniques to protect human health and the environment. The performance criterion set forth in Section 258.22 provides flexibility to accommodate site-specific differences in vectors and in appropriate control teclmologies and mechanisms. The standard is intended to prevent the facility from being a breeding ground, habitat, or a feeding area for disease vector populations and the requirements for vector control are to be undertaken i11 conjunction with the cover material requirements in Section 258.21.

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18. EPA Regulation ofNoise and Traffic (Safety). EPA's RCRA Subtitle D regulations do not address noise and traffic issues. However, through the Noise Control Act of 1972, 42 U.S.C. §§ 4901- 4918, Congress directed EPA to publish scientific information about the kind and extent of all identifiable effects of different qualities and quantities of noise. EPA was also directed, through the Noise Control Act, to defrne acceptable noise levels under various conditions which would protect public health and welfare with an adequate margin of safety. See EPA 's Information on Levels o(Environmental Noise Requisite to Protect Public Health and Weltare. EPA/ONAC 55019-74-004 (March 1974) at p.2. EPA collaborated with other federal agencies and the scientific community to publish its Information on Levels o(Environmental Noise Requisite to Protect Public Health and Welfare, EPAIONAC 55019-74-004 (March 1974) which fulfills these requirements and are discussed in more detail above. Id.

19. EPA Regulation ofAir E111issions. Landfill gas is generated by bacterial decomposition of organic materials in solid waste. See Municipal Solid Waste Landfills. Volume]: Summary of the Requirements for the New Source Performance Standards and Emission Guidelines for Municipal Solid Waste Landfills (EPA-453R/96-004, February 1999). By volume, landfill gas is approximately 50 percent methane, 50 percent carbon dioxide, and less than one percent of the many different NMOCs. 19 See 65 Fed. Reg. 66672, 66678. "NMOCs include volatile organic 20 21 compounds (VOC), hazardous air pollutants (HAPs) , and odorous compounds. The NMOCs originate from organic chemicals present in the municipal waste that has been placed in the landfill and from products of refuse decomposition. Municipal wastes may include waste items such as paints, solvents, pesticides, and adhesives \Vhich contain numerous organic compounds. These organic compounds are stripped from the refuse by the generation of methane and carbon

19 "A number of factors determine the specific proportion of each constituent ofMSW landfill emissions, such as the composition, age, and amount of waste in the landfill, moisture content and pH of the refuse, climate, and the presence of nutrients and/or toxic substances in the landfill. Landfill management practices, such as waste segregation, may also affect the composition of the emissions generated. Given the variability of these factors, the exact composition ofMS\V landfill emissions can vary significantly from landfill to landfill and over time. Although the types of compounds are typically the same, the complex mixture cannot be characterized quantitatively in terms of single pollutants. The EPA thus views the complex air emission mixture from landfills to constitute a single pollutant." 56 Fed. Reg. 24468, 24474.

20 EPA's CAA Section 111 landfill gas emission regulations (new source performance standards and emission guidelines) cover hazardous air pollutants (as a component ofNlvfOC). In addition, under CAA Section 112(d), EPA has listed municipal solid \vaste landfills as one of the 29 area source categories that emits one or more hazardous air pollutants. Actually, municipal solid waste landfills emit nearly 30 of 33 hazardous air pollutants listed in CAA Section l 12(b ), including, but not limited to toluene, ethyl benzene, vinyl chloride and benzene. See 65 Fed. Reg. 66672, 66675 {Tuesday, Nove1nber 7, 2000) (Proposed rnle); 67 Fed. Reg. 36460 {Thursday, May 23, 2002) (Proposed supplen1ental rnle). On January 16, 2003, EPA promulgated its final rule addressing hazardous air emissions from municipal solid waste landfills. See 68 Fed. Reg. 2227 {Thursday, January 16, 2003). The regulations set maximum available control technology (MACT) standards that track the applicability and control requirements of the new source performance standards and emissions guidelines.

21 Small landfills (i.e., those that are smaller that 2.5 million megagrams or 2.5 million cubic meters or that emit less than 50 megagrams per year ofNMOC) emit "relatively little fIAP." See 65 Fed. Reg. 66672, 66677.

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dioxide from decomposing refuse." See Municipal Solid fVaste Landfills, Volume J: Summary ofthe Requirements for the New Source Performance Standards and Emission Guidelines for Municipal Solid Waste Landfills (EPA-453R/96-004, February 1999).

20. EPA regulates landfill gas emissions at municipal solid waste landfills under both RCRA Subtitle D and the CAA. Under RCRA Subtitle D, municipal solid waste la11dfill regulations focus on methane gas emissions.22 Because of its explosive nature, the RCRA Subtitle D regulations require municipal solid waste landfills units to ensure that concentrations of methane gas do not exceed certain explosive limits and to monitor methane gas emissions. See 40 CFR § 258.23.

21. Under Section 111 of the CAA, landfill gas emissions which are comprised of methane and non-methane organic compounds (NMOC) are regulated as part of new source performance standards (NSPS) and emission guidelines (EG) for large municipal solid waste landfills.23 The NSPS regulate landfill gas emissions from ne\v landfills and the EG regulate emissions from existing landfills.24 Both the NSPS and EG require the application of a "best demonstrated system of continuous emission reduction (BDT)." See 49 Fed. Reg. 9905. Under this BDT, a gas collection and control system is required than can limit the surface methane concentration to 500 ppm or less over the landfill according to a specified monitoring pattern and that can achieve a 98% rednction ofNMOC. See 49 Fed. Reg. 9905, 9908; Municipal Solid Waste Landfills, Volume 1: Su1nmary ofthe Requirements for the New Source PerfOrmance Standards and Emission Guidelines for Municipal Solid Waste Landfills, EPA-453R/96-004 (February 1999).

22. EPA 's air emissions regulations do not prol1ibit NMOC and methane emissions but aim to control these emissions at large mm1icipal solid waste landfills to the level achievable by the best demonstrated system of continuous emission reduction.25 See 49 Fed. Reg. 9005. EPA 's NSPS

22 Landfills are the largest anthropogenic source of methane emissions in the United States, constituting about 40 percent. See EPA Fact Sheet, March J, 1996: Final Air Regulations for Municipal Solid Waste Landfills.

23 EPA's rulemaking under the authority of Section 111 of the Clean Air Act added subparts W\VW and Cc to 40 C.F.R Part 60. For methane, the CAA regulations are a "compliment" to the RCRA Subtitle D methane provisions. See 56 Fed. Reg. 24468, 24473.

24 The EG require states to submit a plan that establishes emission standards for existing sources when NSPS have been promulgated for a designated pollutant, such as landfill gas (LFG). The EPA publishes EG to establish minimwn requirements that states can use in establishing their emission standards. States have responsibility for implementing the EG and are required to submit an implementation plan to the EPA. See Municipal Solid Waste Landfills- Volume]: Sun1ma1y o(the Requirenients [Or the New Source Per(Ormance Standards and Emission Guidelines for Municipal Solid Waste Landfills. EPA-453R/96-004 (February 1999).

25 Landfills may continue to generate and emit a significant quantity of emissions for more than I 0 years after the facility has closed or has ceased to accept waste, although landfill emissions are at their highest level within the year right after closure and then begin to decrease steadily. See Municipal Solid Waste Landfills- Volume 1: Sum1na1y of the Require111ents fOr the New Source Perf0r1nance Standards and Emission Guidelines for Municipal

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and BG cover both existing and new large MSWLFs having design capacities greater than or equal to 2.5 million megagrams (Mg) or 2.5 million cubic meters.26 This design capacity level was set at level high enough to relieve as many small businesses and municipalities as possible from the regulatory requirements while still maintaining significant emission reduction.27 Id. at 9910-9911. The 2.5 million Mg design level exempts 90 percent of existing landfills (mostly owned by municipalities) while losing only 15 percent of the total NMOC emission reduction. Id. at 9910. The expressed goal of BP A's emission guidelines and NSPS is to control landfill gas emissions from the largest landfills to protect human health and the environment. See 67 Fed. Reg. 36476, 36477 (May 23, 2002) (EPA 's Supplement to Proposed Rule: National Emission Standards for Hazardous Air Pollutants: Municipal Solid Waste Landfills).

D. Alabama Regulation of Municipal Solid Waste Landfills

23. RCRA establishes a framework for federal, state, and local government cooperation in controlling the management of non-hazardous solid waste. The federal role in this arrangement is to establish the overall regulatory direction, by providing minimum nationwide standards for protecting human health and the enviro11ment, and to provide technical assistance to states for planning and developing their own environmentally sound waste management practices. The actual planning and direct implementation of solid waste programs under Subtitle D, however, remains largely state and local functions, and RCRA provides for states to devise programs to deal with state-specific conditions and needs. See 56 Fed. Reg. 50978, 50979.

24. Alabama regulates municipal solid waste landfills through its Solid Wastes Disposal Act and implementing regulations (including Phase I and II of the State Solid Waste Management Plan), and its EPA-approved RCRA Subtitle D regulations.

25. Alabania's Solid Wastes Disposal Act. The Solid Wastes Disposal Act (the Act) is

Solid Waste Landfills, EPA-453R/96-004 (February 1999); see also 65 Fed. Reg. 66672, 66677.

26 One megagram equals l.1023 tons or 2,204.6 pounds. Since some landfills record waste by volume and have their design capacities calculated in volume, EPA also established an equivalent design capacity exemption of 2.5 million m3 (meters cubed) of waste. One cubic meter equals 35.288 cubic feet or 1.3069 cubic yards. See 49 Fed. Reg. at 9906 and 9911.

27 Of the four landfills at issue in Allegation #I, only Pineview Landfill met this definition of a large landfill and is subject to the NSPS standards for landfill gas emissions. However, in accordance with the requirements of Subpart \V\VW, the Facility submitted testing reports for its NM:OC emissions in 1996 and 1997. Those test results indicated that the Landfiil's actual NM:OC emissions were less than 50 megagrams per year (actual NM:OC emissions in 1997 were l l.l megagrams or 12.23 tons). See Letter fro1n Dean Brown, BFI, to Mr. Gerald Griffies, ADEM {April 14, 1997). Because the Facility's N110C emissions were (and continue to be) less than 50 megagrams (or 55.11 tons) per year, a collection and control system for these emissions has not been required by Subpart \V\V\V. It is not anticipated that the Pineview Landfill will pass this 50 megagram threshold (triggering collection and control of the NM:OC emissions) for many years. See, Ho>v ADEM Re@lates Air Emissions ttom Landfills, prepared by Lar1y Brown and Gerald Griffies, ADEM (November 2000).

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Alabama's enabling legislation for the State's solid waste program. The broad-based goals of the Act include (1) the development of an integrated system of planning for solid waste management in the State by local governments, regional planning commissions, and ADEM, and (2) the implementation of necessary procedures so that an integrated statewide network of solid waste management facilities can be planned, developed, and operated. See Code ofAlabama§§ 22- 27-42(1)-(2) and 22-27-2(15).

26. To effectuate these goals, the Act gives ADEM regulatory control over the management of solid waste in Alabama "as maybe necessary to enforce the requirements of [ADEM] ... [and] as may be needed to meet the requirements of this article." See Code ofAlabama§ 22-27-7. In keeping \Vith this management control, the Act instructs the Director of A.DEM to develop a State Solid Waste Management Plan that takes into account "all aspects of local, regional, and state planning, zoning, population estimates, and economics." See Code ofAlabama§ 22-27- 45(3). This State Plan is to be developed in two Phases, with the first Phase focused on the development of criteria to be used by local governments in formulating Local Solid Waste Management Plans, and the second Phase reflecting the Final Master State Plan (and incorporating all of the Local Plans and making recommendations for improvements). See Code ofAlabama§ 22-27-45.

27. Pliase I. The Act sets out certain minimum requirements that ADEM inust include in the State Solid Waste Management Plan. For example, in Phase I, ADEM must set out siting factors to be used by local governments for the identification of potential locations for solid waste management facilities in their jurisdiction or region. See Code ofAlabama§ 22-27-45(4)(a)(5). The Act specifically directs ADEM to include in these siting factors, six ''minimum" criteria including:

• "the costs and availability of public services, facilities, and improvements which would be required to support a facility in this location and protect public health, safety and the environment;"

• "the potential impact a facility in any potential location would have on public health and safety, and the potential that such locations can be utilized in a manner so as to minimize the impact on public health and safety;" and

• "the social and economic impacts that any proposed location would have on the affected community, including changes in property values and social or community perception." See Code ofAlabama§ 22-27-45(4)(a)(5)(iv)-(vi).

28. The Act states that local plans are also to contain thirteen other mi11imum elements including providi11g "for the development or expansion of solid \vaste management systems in a manner that is consistent with the needs of the area, taking into account planning, zoning, population and development estimates, and economics of the jurisdiction and the protection of air, water, land, and other natural resources." See Code ofAlabama§ 22-27-47(b)(8). It also requires that local

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plans "include such other information as the department may require by regulations." See Code of Alabama§ 22-27-47(b)(l3).

29. The Act also gives enabling authority to local governing bodies "to assure the proper management of solid wastes generated within its jurisdiction in accord with its Solid Waste Management Plan," and further provides local governing bodies with authority to approve or disapprove disposal sites in its jurisdiction, with the caveat that:

such approval or disapproval of services or activities described in the local plan shall be in addition to any other approvals required from other regulatory authorities and shall be made prior to any other approvals necessary for the provision of such services, the development of a proposed facility or the modification of permits for existing facilities.

See Code ofAlabama§ 22-27-48(a) (emphasis added); see also ADEM State Solid Waste Disposal Plan -Phase I at 8-1 ("the local governing body's approval is in addition to and prior to any other required approvals.'). In keeping with this provision requiring prior local approval, the Act prohibits ADEM from considering an application for a new or modified permit for a facility "unless such application bas received approval by the affected unit of local government having an approved plan." See Code ofAlabama§ 22-27-48(a).

30. The Act directed local governments to submit their Local Solid Waste Management Plans to ADEM for approval by the end of 1990.

31. Pliase II. The Act also requires that the second phase of the State Solid Waste Management Plan "incorporate the local plans and develop a final master plan for solid waste management in the state." See Code ofAlabania § 22-27-45(4)(b). It specifies eight minimum requirements for this second phase, including that it "rnalce such other determinations and recornmendatio11s as the director shall deem necessary or appropriate in keeping with the fmdings and purposes of the Legislature ...." See Code ofAlabama§ 22-27-45(4)(b)(8). The Act allows for periodic amendments and revisions to the State Plan including revisions to evaluate "the development and implementation of local solid waste management programs ...."and revisions to make recommendations to the Governor and the Legislature "to improve the management and recycling of solid waste in this state." See Code ofAlabama§§ 22-27-45(4)(c)(3) and (c)(?). Finally, the Act provides that Phase I and Phase ll of the State Plan be adopted by ADEM as final regulations. See Code ofAlabama§ 22-27-45(4)(d).

32. ADEM's State Plan Regulations. Under this enabling authority, ADEM developed both Phase I and II of the State Solid Waste Management Plai1 and adopted each Phase into its regulations at ADEM Regulations §§ 335-13-9-.01 and .02. Chapter 8 of the Phase I State Plan discusses solid \Vaste facility siting criteria. It notes that state and federal regulations tend to provide "technical" location standards while the local governing bodies consider mostly socio­ economic issues (although some socio-economic issues co11tain technical location considerations). See Phase I ofADEM Solid fVaste Disposal Plan at 8-1 through 8-3. The Plan

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discusses the six minimum criteria specified in the Act that local governing bodies must consider and further notes that "any site selected will have some socioecono1nic effect on some portion of the populations, and the site with the least impact should be considered the most viable." Id. at 8-3. In discussing the local siting criteria, Phase I oftl1e State Plan notes, among other considerations, that:

• 'lhe population or number of households within various distance rings surrounding the site should be evaluated. The total affected population can be adjusted using weighting factors to give more significance to the population closer to the site. For landfills and waste-to-energy (WTE) facilities, predominant wind directions and the likelihood and significance of various potential impacts should also be considered relative to population distribution. The maximum distance to be considered as having a potential impact is at the discretion of the local government and will differ by facility and locale. Specific comparisons can be developed that give priority to sites that have the lowest effect on the local government's population." Id. at 8-5.

• "The number of residential households along local access routes to tl1e site should be determined. Dependi11g on setbacks ai1d existing truck traffic on various highways, some households may not be counted as subject to an additional impact. Sites that impact large numbers of households along access roads should be given a low priority." Id.

• "Level of service/accident rating of principal access route to the site should be considered. Even though the site may be accessible by way of major highways, either traffic or safety conditions may make the site less desirable." Id. at 8-6.

•For health and safety impacts, the Phase I State Plan notes that "the primary safeguards against health and safety impacts specific to MSW [municipal solid waste] landfills are through ADEM and EPA regulations .... From the local viewpoint, health and safety impacts are mitigated by siting in locations that are less susceptible to the impact because of the natural attributes of the site and adequate setback distances from potential points of impact." Id. at 8-7. For example, criterion involving distance/groundwater time of travel to public water s11pply wells (noting "distances on the order of one mile in the same aquifer as the facility are typically examined"). Id.

• Phase I notes "air quality status" as a criterion to consider in siting facilities. In non­ attainment areas, emissions above a de minimis level would require an offset. Emissions in a prevention of significant deterioration (PSD) attainment area would require best available control technology (BACT). It also notes that there are regulations addressing volatile organic compound (VOC) emissions from landfills. Id. at 8-8.

33. Phase I of the State Plan also discusses the state and federal siting (technical) stai1dards which are "superimposed upon and independent of the requirements of localities." Id. at 8-9. It notes that RCRA Subtitle D places locational restrictions on landfills regarding:

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• proximity to airport runways; • floodplains; •wetlands; • fault areas; • seismic impact zones; and • unstable areas

Id. at 8-10. There are also regulatory criteria involving threatened or e11dangered species, point or non-point source water discharges, coastal area elevations, depth of water tables, and archaeologically or historically sensitive areas. Id. at 8-9 and 8-10. Phase I also states that "for the most part, neither ADEM nor Federal regulations address the local socioeconomic perspective on solid waste facility site suitability, since land use planning has traditionally been a role of local government." Id. at8-10.

34. fu. response to Phase I, a total of 80 local solid waste disposal plans were submitted to ADEM for review on November 18, 1990. ADEM evaluated each plan and made a determination of whether the plan met the requirements of the State's Phase I Solid Waste Plan. See Phase II ofState Solid Waste Disposal Plan at p.5. ·

35. The second phase of the State Plan was effective in 1991 and incorporated the approved local plans in the development of a master plan for the management of solid waste. Id. at p. 7. ADEM stated that the two primary objectives of Phase II of the State Plan were to (I) revise databases to incorporate information from the local plans; and (2) to analyze "local plan information to assess the overall condition of solid \Vaste management in the State and to make recommendations on what steps should be implemented to improve solid waste management. Id. The key element to Phase II "are the recommendations for improvements in the State's solid waste management system" made in the form of"legislative recommendations that cover all aspects of solid waste management." Id. at p.8.

36. The recommendations, among other things, provide in Section 5, under the Powers and Duties of ADEM: that ADEM can deny a permit or refuse to issue a permit where (1) the local agency fails to submit annual reports on the implementation of the local plan; or (2) in order to force compliance with a local plan. See Phase II ofthe State Solid Waste Disposal Plan at pps. 128-129. It also recommends that local solid waste advisory committees be formed to develop and review plans and policies relating to solid waste management. These advisory committees are to be made up of community leaders, educators, industry representatives, environmental organization representatives, and the media. Id. at p.130. Section 24 recommends that a local Conflict Resolution Program be established to resolve disputes over issues such as "traffic, buffers, land value, hours of operation .... "Id. at p. 158. "Any such agreement may then be added as conditions to the permit issued by the Department." Id.

37. Alabania's Subtitle D Regulations. The third component to Alabama's solid waste disposal program are ADEM's Subtitle D RCRA regulations. The State's Subtitle D program (except for

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the financial assurance provision) was approved by EPA in1994 and incorporated the minimum federal Subtitle D requirements for solid waste landfills noted previously (location, operation, design, ground water monitoring and corrective action, and closure and post-closure care requirements). See Ala. Admin. Cader. 335-13-4-.01 through 335-13-4-.29.

38. Alabama's Storm Water Regulations. ill addition to its RCRA Subtitle D program, Alabama is an authorized state for storm water permitting. See Letter from James W Warr, Director, ADEM, to Arbon L. Cordell (February 29, 2000). This authorization provides that ADEM can implement its own regulations as long as the regulations are at least as stringent as EPA's regulations. Id. Alabama regulates storm water from landfills under its General Storm Water Permit No. ALG160000. See ADEM Public Hearing Transcript for Pineview Sanitary Landfill at 21-25. The General Permit is designed to promote Best Management Practices by requiring a Best Management Practice Plan which:

I. provides sediment and erosion control necessary to maintain compliance with the suspended solids limitations of the permit; 2. prevents storm water from flowing into the active portion of the landfill from adjacent areas; 3. prevents the exposure of storm water to fluids from vehicle and equipment maintenance; 4. prevents or minimizes the storm water contact with waste in the landfill; 5. designates a person or persons as responsible for the day-to-day implementation of the Best Mm1agement Practices; 6. provides for daily inspection on the days when the landfill is manned to ensure that all measures in place to prevent storm water contamination are operative; 7. if leachate is produced at the landfill, provides for prevention of the inixing of leachate \vith discharged storm \Yater; and 8. provides a diagram of the facility showing all features of storm water control or leachate collection.

See ADEM Public Hearing Transcript for Pineview Sanitary Landfill at 22-23. ADEM's storm water strategy is to control storm water pollution through these Best Management Practices - ADEM believes that by properly managing and operating a landfill, storm Water contact with waste and other pollutants can be minimized. Id. at 22. These eight items form the "the basis for preventing the contamination of storm water by leachate or other means. To measure the success of this plan, the permit requires that the permittee monitor pollutants that are commonly found in leachate. These pollutants are:

* biochemical oxygen demand, \Vhich is a measure of oxygen demand caused by biodegradable matter, * chemical oxygen demand, which is a measure of organic substance, *cadmium, *chromium,

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*copper, * oil and grease, *total dissolved solids, * total organic carbon, and * total suspended solids.

Flow and pH must also be monitored." Id. at 23-24. Any discharge of leachate is a violation of the permit. Id. at 24. The General Storm Water permit requires covered landfills to monitor storm water runoff for certain pollutants. The three metals (cadmium, chromium, and copper) are monitored as indicators for the presence of leachate. The General Storm Water Permit also requires facilities to monitor their non-leachate storm water discharges twice per year. See Letter from James W. Warr, ADEM, to Mr. Arbon L. Cordell (February 29, 2000).

E. ADEM's Statement of its Authority under Alabama's Solid \Vastes Disposal Act

39. ADEM states that the Alabama Solid Wastes Disposal Act mandates that siting and local i1npact assessments for a landfill (which include public health, safety, and social and economic impacts such as noise, traffic, and decreased home values) be do11e exclusively by the local government. See Letter from James W. Warr, Director, ADEM, to Ann E. Goode, EPA Director, Office of Civil Rights (February 4, 2000). According to ADEM, its duty under Alabama law is solely to determine "the technical suitability of the site selected," and that under this split in permitting responsibilities, it "has no authority to require a change in site location once the local governing body bas made its siting decision." Id. ADEM contends that all it can do "is deny a permit if the site is environmentally unsuitable for a landfill" and that, as a consequence, "the permit applicant can then solicit local approval for an alternative site, and, after the appropriate notice provisions are met, the local government can act on that application." Id. ADEM concludes that "[o]nly if local government approval on the alternate site is received can ADEM consider the alternate site."28 Id.

40. This position on the split of responsibility for siting and technical environmental considerations has been consistently reflected in correspondence contained within ADEM's solid waste permitting files for various landfills. See Letter from Sue R. Robertson, ADEM, to Walk:er County Disposal, Inc. (March 12, 1993) (response to public hearing comments for Pineview Landfill permit); Letter from Wm. Gerald Hardy, ADEM, to Rick Losa, BF! Disposal Systems of Alabama, Inc. (July 24, 1996) (response to public comments on modification ofPineview Landfill permit); Letter from James L. Bryant, ADEM, to Adjacent Land Owners and Public Commentors (March 13, 2002) (Pineview Landfill); Letter from Russell A. Kelly, ADEM, to Mr. Paul Manning, St. Clair County Commission (March 20, 2000) (Cedar Hill Landfill).

28 When asked whether it had denied any permits within the relevant time period for this Title VI

complaint (1999 w present), Larry Bryant, ADEM's Chief of the Solid \Vaste Branch stated that ADEM has not denied any solid waste landfill pennit applications during this time period. See Notes ofNancy L. Tonznielleo, EPA (October 24, 2002).

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VII. FINDINGS OF FACT ON DEMOGRAPHICS OF STATE-WIDE LANDFILL PERMITTING

41. There are a total of twenty-nine (29) municipal solid waste landfills currently operating in Alabama. See Notes ofNancy L. Tommelleo, EPA (October 24, 2002). The majority of these landfills are located in the mid-to-northern portions of the State, with Jefferson County hosting the most with four active municipal solid waste landfills.29 See Alabama Map of Operating Sanitary Landfills (October 24, 2002). Since the time of the filing of the instant Title VI complaint in 1999, ADEM has issued two new solid waste disposal permits for sanitary landfills (Tallawassee Ridge Solid Waste Landfill in Lowndes County and the Tallassee Waste Disposal Center in Tallapoosa County).30 See Notes ofNancy L. Tommelleo, EPA (October 24, 2002). In addition, since 1999, ADEM has renewed and reissued permits for nineteen municipal solid waste landfills. Id.

29 The twenty-nine municipal solid waste landfills currently permitted are: Magnolia Sanitary Landfill, Three Comers Regional Landfill, Coffee County Sanitary Landfill, Cullman Environmental Waste Management Center, Sand Valley Landfill, Timberlands Sanitary Landfill, City of Dothan Sanitary Landfill, Scottsboro Landfill, New Georgia Landfill, Eastern Area Landfill, Jefferson County Landfill No. 1, Jefferson County Landfill No. 2, Florence Municipal Solid \Vaste Landfill, Morris Fann Sanitary Landfill, Salem Waste Disposal Center, Seven Mile Post Road Municipal Solid Waste Landfill, Huntsville Landfill, Bishop Landfill, Chastang Sanitary Landfill, North Montgomery Landfill, City of Decatur-Morgan County Sanitary Landfill, Brundige Landfill, LLC, Superior Cedar Hill Landfill, Superior Star Ridge Landfill, Highway 70 Landfill, Tallassee Waste Disposal Center, Black \Varrior Solid Waste Facility, Pineview Sanitary Landfill, and \Villow Ridge Landfill. However, only twenty-five of the landfills are currently operating as municipal solid waste landfills. The four exceptions are New Georgia (modified permit to accept only construction/demolition waste), Seven-Mile Post (never built), Bishop Landfill (closed), and \Villow Ridge Landfill (has not build its municipal solid waste cells yet). See Electronic 1nail from Larry Bryant, ADEM, to Nancy L. Tom1nelleo , EPA (June 19, 2003). Complainants' supplemental correspondence to EPA states that a survey by members of the Alabama chapter of AAEJAN revealed that "a majority of landfills are located in Southern Alabama .... " See Letter from Caroline Farrell, Center on Race, Poverty & the Environment, to Nancy L. Tommelleo, EPA (October 22, 2002). This survey assessment was not supported by EPA's investigation, at least with respect to operating municipal solid waste landfills (rather than closed municipal solid waste landfills or construction/demolition landfills).

30 The Tallawassee Ridge permit was nullified in Alabama's Circuit Court and there is no pennitted landfill by that name at this time. See Electronic mail fi·om Larry Bryant, ADEM, to Nancy L. Ton11nelleo, EPA (February 20, 2003). The permit was nullified because the court ruled that ADEM did not properly notify an adjacent landowner of the pending pennit action. See Electronic mail from Larry Bryant, ADEM, to Nancy L. Tommelleo, EPA (April 21, 2003).

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42. EPA conducted a demographic review of a representative sample of thirteen of twenty-nine, or 44.8%, of the operating municipal solid waste landfills in Alabama.31/32 This demographic review \Vas based on 2000 Census Data.33 The revie\v revealed the following:

31 These thirteen landfills include the four landfills which are the subject of Allegation #1, plus nine additional landfills. The nine additional landfills were chosen as a representative sample of the 29 permitted sanitary landfills in Alabama based on type of landfill (municipal solid waste), size (comparable to the Pineview Landfill in permitted tons of waste per day- 1500 tons) and location (throughout the State). See Notes ofNancy L. Tommel/eo, EPA (October 24, 2002).

32 According to EPA's demographic information (as reflected in this Chart), less than one-third (30.7o/o) of the 13 landfills had a higher percentage of African American residents within one mile of the landfill than in the corresponding service area (the "service area" for a given landfill is the county or counties served by the landfill). As compared to the State, 38.4% of the 13 landfills had a higher percentage of African American residents than in the State and 61.6% of the landfills did not. At two miles [not reflected in the Chart] this percentage rose to 53.8% of the landfills with a higher percentage of African American residents than in the corresponding service area; at three miles [not reflected in the Chart], 46.1% of the landfills had a higher percentage of African American residents than in the corresponding service area; and at four miles [not reflected in the Chart], 38.4% had a higher percentage of African American residents than in the corresponding service area. See Proximity Demographic Analysis and Maps, by La;vrence Lelzr1nan, EPA Region 5 (April 2003) and EPA Demographic Analysis (January 2003); see also Investigative Report, Section VIII Paragraphs 46, 55, 65, and 73, infra.

33 The methodology used by EPA to estimate the specified populations as reflected in this Chart and the Charts appearing in Section YID, infi·a \Vas as follows: 2002 Census information for individual blocks partially or totally within a specified area, representing a given distance from the facility (e.g., a one mile radius), was collected. If a census block was entirely within the area considered, the estimate of the entire population segment of interest (e.g., African American) \Vas used. If the census block was partially within the area considered, it was assumed that the population of interest was evenly distributed within the block. The percentage of the population of interest equivalent to the potiion of the census block within the area of concern was estimated. The entire population segment of interest for census blocks entirely \vi thin the area of interest and the population calculated for the portion of census blocks partially within the area of interest were added to estimate the population within a given distance of the facility. The methodology employed calculated the percentage of the Black or African American population in an area by dividing the Black or African American population by the total population, estimated using the above method.

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Name of Total Percent o/o African o/o African Landfill Population '\V/in African American in American in 1 mile radius34 American Service State lv/in 1 mile Area radius

Chastang 146 88.4°/o 33.3% 26% (Mobile Co.)

Tallassee Waste 69 89.9% 34.9% 26% Disposal Center (Tallapoosa Co)

Brundige 19 31.6% 35.2% 26% (Bullock Co.)

Salem Waste Center 149 8.lo/o 35.6% 26% (Lee Co.)

Black Warrior 164 1.8% 26% 26% (Tuscaloosa Co.)

Highway 70 Landfill 61 4.9°/o 27.5°/o 26°/o (Shelby Co.)

Superior Star Ridge 750 13.5% 26% 26% (St. Clarr Co.)

Sand Valley 21 0% 11.4% 26% (Dekalb Co).

Morris Fann 22 100% 16.4% 26% (Lawrence Co.)

Superior Cedar Hill 101 0% 26% 26% (St. Clair Co.)

Pineview 430 0.2% 26.4°/o 26% (Walker Co.)

Florence 414 6.8% 19.3% 26% (Lauderdale Co.)

New Georgia 2259 77.3% 39.3% 26% (Jefferson Co.)

34 Longitude and latitude infonnation for each of the thirteen landfills was used to locate the landfills for the purpose of the proximity demographic analysis as reflected in this Chart and the Charts appearing in Section VIII, infra. See Proximity Demographic Analysis and Maps. by Lawrence Lehrntan, EPA Region 5 {April 2003) and EPA Demographic Analysis (January 2003). Longitude and latitude information was provided by ADEM and represents the front gate location of each landfill. See Electronic 1nailfro1n Larry B1yant, ADEM, to Nancy L. To1nmelleo, EPA (April 21, 2003).

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See Proximity Demographic Analysis and Maps, by Lawrence Lehrman, EPA Region 5 (April 2003) and EPA Demographic Analysis (January 2003).

VIII. FINDINGS OF FACT ON THE FOUR SPECIFIED LANDFILLS (CEDAR IDLL, NEW GEORGIA, FLORENCE, AND PINEVIEW)

1. Cedar Hill Landfill (St. Clair County)

43. Background. The Cedar Hill Municipal Solid Waste Landfill, previously lmown as the Harmon Sanitary Landfill, is located on an abandoned stip mine off Alabama I-Iighway 144 in St. Clair County, Alaba1na, approximately 10 miles northeast of Pell City. See Letter from Jon A. Spoiler, P.G., Geosciences, to Bill Hodges, P.E. (April 30, 1992) (enclosing report of hydrogeologic site evaluation for Harmon Sanitary Landfill). The Landfill began operation in 1972 with 40 disposal acres and an existing groundwater monitoring system consisting of 4 monitors. See Solid fVaste Disposal Permit No. 58-0JR (April 30, 1987). It was originally permitted by the State of Alabama in 1977 and was initially authorized to accept 300 tons per day of non-hazardous household and commercial waste from 8 counties.35 Id.; Letter from Donnie D. Todd, Jr., St. Clair County Commission, to Thomas E. Walker (April 22, 1992).

44. Site description. The topography of the site, located at the top of the watershed, drains to the northeast and to the southeast by tributaries of No Business Creek, a tributary of Broken Arrow Creek. See Letter from Jon A. Spa/fer, P. G., Geosciences, to Bill Hodges, P.E. (April 30, 1992) (enclosing report ofhydrogeologic site evaluation for Harmon Sanitary Landfill). Because t11e Landfill is located on the side and top of a northeast trending ridge, groundwater moves downward vertically in the soil and flo\v directions follow the surface topography (northeast and southeast). Id. Groundwater flow in the rock aquifer is more complex and is influenced by various bedding planes and rock joi11ts which produce flows that can go northwest, northwest/southeast, and nearly east-west. Id.

45. In 1987, there were no houses or water wells located within 1500 feet of the site. See Solid Waste Disposal Permit (April 30, 1987). The 1992 Hydrogeologic Site Evaluation (performed for 1995 modification to make the Facility Subtitle D compliant) indicated that"[ a] road reconnaissance survey for water wells oft11e area immediately adjacent (1 mile) to the landfill was conducted [and found that] most homes in the area adjacent to the landfill are served by municipal water. No well houses were observed along Alabama Highway 144." See Letterfro1n Jon A. Spoiler, P.G., Geosciences, to Bill Hodges, P.E. (April 30, 1992) (enclosing Report of

35 The Service Area for the Cedar Flill Landfill initially covered eight counties: Calhoun, Etowah, Shelby, Jefferson, Blollilt, Talladega, Marshall, and St. Clair. See Transcript ofPublic Hearing on Harmon Sanitary Landfill permit renewal and modification application (December 2, 1993). By 1995, the service had expanded to include Clay County for a total service are of9 coWlties. See Letter from Russell A. Kelly, ADEM, to Vernon S1nith, Superior Service, Inc. (March 17, 2000).

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Hydrogeologic Site Evaluation for Harnion Sanitary Landfill).

46. Demographics. The demographics, as they relate to African American populations around the Cedar Hill Landfill, the senrice area, and the State of Alabama are as follows:

Name of Miles Total African Percent % African % African Landfill (Radius) Population American African American in American in Population American Service State Area

Cedar Hill 1 101 0 0% 26% 26o/o

2 1006 19 1.9% 26% 26%

3 2009 40 2% 26% 26%

4 3222 51 1.6% 26% 26%

See EPA Demographic Analysis (January 2003).

47. Pern1itti11g History. The Permit history is as follows:

• 1995 - permit was reissued and modified to develop the remainder of the site as a Subtitle D landfill (with the required liner and a leachate collection system). 36 See Letter from T.L. Harmon Jr., to Donnie Todd, Chairman, St. Clair County Commission (May 8, 1992); Solid Waste Disposal Permit No. 58-0lR (effective December 4, 1995 ).

• 1997 - permit was modified to increase the volume accepted to 600 tons per day and to provide for the use of an alternate liner and the relocation of a leachate line. See, Solid Waste Disposal Permit No. 58-0IR (effective December 4, 1995).

• 1998 - permit was modified for an name change.

• 919199 - permit was modified for the relocation of background groundwater monitoring well(GWA-1).

• 3/17/00 - permit was modified to add an additional 40 acres of disposal area for a total of 78 acres. See Letter from Russell A. Kelly, ADEM, to Vernon Smith, Superior Services, Inc. (March 17, 2000).

36 The initial permit application for the reissuance and Subtitle D modification was submitted in 1992, with the public healing held oq. December 2, 1993. In accordance with ADEM regulations adopted 11/2/93, the Facility continued operation at the site past the October 9, 1993, date of Subtitle D by vertically expanding over areas previously used for the disposal of solid waste. See Letter from Scott W. Ford, to Gerald Hardy, ADEM (October 21, 1993); Transcript ofPublic Hearing on Harmon Sanitary Landfill (December 2, 1993).

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• 10/9/01 - pennit reissued.37 See Letter from James L. Bryant, ADEM, to Vernon Smith, Superior Services, Inc. (October 9, 2001).

48. Title VI Trigger. The September 9, 1999, permit modification is the trigger action cited by complainants as violating EPA' s Title VI regulations. See Letter from Luke Cole to Carol Browner, EPA Administrator (December 17, 1999). This modification involved the relocation of the background groundwater monitoring well (GWA-1) at the Superior Cedar Hill Landfill. See Letter from Russell A. Kelly, ADEM, to Mr. William F. Hodges, Superior Cedar Hill Sanitary Landfill (September 9, 1999). The Facility has a total of five groundwater monitoring wells: one background (GWA-1) and four downgradient (GWC-JR, GWC-2R, GWC-3R, and GWC-4R). See Letter from William F. Hodges, P.E., to Charles D. Bush, ADEM (August 13, 1999).

49. The 39-foot deep GWA-1 was the Facility's only backgroundlupgradient well and had been located along a gravel landfill entrance road next to an approximate 20-foot lrigh embanlanent. Id.; see also Letter from Thomas D. Trent, Atlanta Testing & Engineering, to William F. Hodges, P.E. (January 31, 1996) (referring to GWA-1 as an "upgradientlbackground" well); Solid Waste Disposal Permit 58-0lR, Section IV(A)(2) (effective December 4, 1995/expires December 3, 2000)(requiring GWA-1 to be maintained as the background groundwater monitoring well for the entire facility). The purpose of the background monitoring well was to establish background water quality and the Facility's Permit and ADEM's regulations required that the inonitoring well be sampled and analyzed prior to the initial receipt of waste at the facility. See Solid Waste Disposal Permit 58-0lR, Section IV(B)(3)(citing ADEM Rules 335-l 3- 4-.27(2)(j); 335-l 3-4-.27(2)(a)(l)). The Permit required only this initial sampling of the background well (while the other four do\Vllgradient mo11itoring wells were required to sample and analyze on a semi-annual basis throughout the active life of the Facility and post-closure care period). Id. at Sections IV(A)(2) and (B)(3). Pursuant to ADEM's requirements, the background monitoring well, GW A-1, had established groundwater quality for the Facility prior to the Facility's acceptance of waste in 1977. See Transcript ofPublic Hearing on Harmon Sanitary Landfill Permit Renewal and Modification, p.13 (December 2, 1993).

50. The request for the relocation of GWA-1 was made by Superior Cedar Hill's consulting

37 Both the 1995 Permit and the reissued 2001 Permit allowed disposal of:

All non-hazardous, non-infectious putrescible and non-putrescible wastes including but not limited to household garbage, industrial waste, construction and demolition debris, tires, appliances, trees, limbs, stumps, dried sludges, paper and similar type materials, household solid \Vaste, commercial solid waste, wood boiler ash, etc.

See Solid Waste Disposal Permit 58-0JR, Table III.l(B)(effective Deceniber 4, 1995/expires December 3, 2000). The Permit also authorized the disposal of the fqllowing "special \vaste:" asbestos waste, folUldry sand, petroleum contaminated waste, and municipal solid waste ash. See Solid Waste Disposal Permit 58-0lR, Table Ill.J(C)(l- 4)(effective December 4, 1995/expires Decenzber 3, 2000).

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engineers on August 13, 1999.38 See Letter from William F. Hodges, P.E., to Charles D. Bush, ADEM (August 13, 1999). The reason given for the need for the relocation was that the well was "immediately adjacent to the access road and it is in danger of damage from landfill vehicles if not moved off the edge of the road." Id. The accompanying permit modification application further explained that:

Monitoring well G\VA-1 will need to be abandoned and relocated to allow for improvements needed 011 the landfill access road. At the current location the well is subject to damage from landfill traffic and construction activities plaru1ed for road improvements.

Id. Site construction activities included cutting the embankment back and improving the landfill entrance road. Id. Because of this, GWA-1 was subject to damage from landfill traffic and the construction activities involved in cutting the embankment back from the road. Id.

51. The new monitoring well, GWA-lR, was to be installed in accordance with Alabama well construction standards at a new location approximately 20 feet to the \Vest of the original well after grading activities had been completed. See Letter from William F. Hodges, P.E., to Charles D. Bush, ADEM (August 13, 1999). The 11e\v well was to be installed as a 2-inch diameter Type Il monitoring well with a 10-foot screened interval, and was to be installed "to a depth similar to, and in a similar hydrogeologic regime, as the well that is being replaced (GWA-1), approximately 45 feet deep". Surveying of the new well was to occur after installation to ensure horizontal and vertical control. Id. According to a December 17, 1999, Ground-Water Monitoring Well GWA-lR Installation Report, the GWA-1 background monitoring well was abandoned in accordance with the Workplan and \Vith Alabama well abandonment standards. See, Letter from Mark S. Preddy, P.G., to Mr. William F. Hodges, P.E. (December 17, 1999); see also Letter from Mork S. Preddy, P.G., to Mr. Whit Slagle, P.G. (August 10, 1999); Letter from Russell A. Kelly, ADEM, to William F. Hodges, Superior Cedar Hill Landfill (January 5, 2000). Under ADEM's regulations, this relocation was considered to be a "minor" modification not subject to public notice and hearing. See Letter from Russell A. Kelly, ADEM, to Mr. William F. Hodges, Superior Cedar Hill Sanitary Landfill (September 9, 1999).

2. New Georgia Landfill (Jefferson County)

38 A review of ADEM's permitting file for this Facility reveals that all of the downgradient groundwater monitoring wells had also been abandoned and relocated at some point during the Facility's permitting history. For example, groundwater monitoring well G\VC-2 was replaced by G\VC-2R in 1994 (See Letter from William F. Hodges, P.E., to Mr. Russell A. Kelly, ADEM (December 15, 1993)); GWC-4 was abandoned and replaced by GWC-4R in 1996 (See LetterfromThonias D. Trent, to Mr. Willia1n F. Hodges, P.E. (January 31, 1996)); G\VC-1 was abandoned and replaced by GWC-lR in 1997 (See Letter from William F. Hodges, P.E., to Mr. Russell A. Kelly, ADEAf (September 9, 1997)). No documents were found for GWC-3, however, reference to GWC-3R in the 1999 Groundwater Monitoring \Veil Installation Report for G\VA-IR indicates that G\VC-3 \vas abandoned and replaced by GWC-3R at some time prior to 1999. See Letter ji·o1n J...fark S. Preddy, P.G., to Mr. William F. Hodges, P.E. (December 17, 1999).

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52. Background. The New Georgia Landfill is located approximately five miles north of downtown Birmingham, Alabama (Jefferson County), but is within the City limits. See 1994 Permit Application. The Landfill is operated by the City of Birmingham and services Jefferson County (which includes the City of Birmingham). The Landfill consists of approximately 700 acres and was opened in 1955. It operated as an open dump before becoming a fully compliant sanitary landfill in 1971. See 1994 Permit Application; Solid Waste Disposal Permit, No. 37-11 (effective November 2, 1998). Within a three-mile radius of the site there are at least three other permitted solid waste landfills used for disposal of foundry wastes, asbestos and construction/demolition wastes. Id. From 1892-1951, a portion of the site underlying what is now the construction/demolition part of the Landfill was mined for coal.39 See Assessment of Potential For Coal Mine Subsidence and Subsidence Mitigation lvfeasures, New Georgia Landfill Expansion, submitted to HDR Engineering, Inc. (October 1994).40

• 53. Site Description. The Facility is located in a mixed use area (industrial, residential, mining, and forest uses) and is bounded by I-65 to the southeast, Southern Railroad to the sol1th and southwest, and Five Mile Creek along the northern boundary of the site. See 1994 Permit Application. The main entrance to the Landfill is across a two-lane bridge which, as of the 1994 application, provided the only access to the Landfill. See Landfill Permit Application, New Georgia Landfill (December 1994). The 700-acre site currently consists of three areas: an old closed sanitary landfill site ( 105 acres), a vertical expansion sanitary landfill site ( 40 acres), and a 30.5 acre construction/demolition waste site. See Notes ofNancy L. Tommelleo, EPA (October 2002 ADEM File Review); Meeting Minutes City ofBirmingham (March 19, 1993).

54. The Landfill is situated on a topographic high with surlace drainage almost in all directions (radial) but predominantly northward towards Five Mile Creek and subsequently, into the Black Warrior River. See Landfill Permit Application, New Georgia Landfill (December 1994). The ei1tire site is located \Vithin the Five Mile Creek Basin. Id. Groundwater flow at the site is predominantly toward the north-northeast in t11e area of the Subtitle D cell. See Landfill Permit Application, New Georgia Landfill (December 1994). A north-northwest component is also

39 In 1993, ADEM's Groundwater Branch evaluated the problems associated with underground coal mines with relation to the permitting of Subtitle D Landfills. The evaluation determined that certain concerns must be addressed at landfill sites where underground coals mines are present. These concerns are: verification of location of mines; structural stability of the mine; and identification of all surface water discharges from the mine and evaluation of impacts of the development of the site for use as a landfill. See }l,femorandumfro1n David }l,f. Lovoy, ADEM, to Gerald Hardy, ADEM {Septenzber 8, 1993). For the New Georgia Landfill, this verification and assessment was done in October 1994 for the 100-acre Subtitle D portion of the Landfill and concluded that potential subsidence impacts would be minor and would be accounted for within the regular landfill design. See Assessnient ofPotential for Coal }I.fine Subsidence and Subsidence Mitigation Afeasures, New Georgia Landfill Expansion, sub1nitted to HDR Engineering, Inc. (October 1994).

40 "Mine Subsidence" refers to movements of the ground surface (i.e., sinkholes or troughs or sags) that occur in response to the collapse or adjustment of Wlderlying abandoned mine workings under the influence of gravity. See Assessment ofPotential For Coal Mine Subsidence and Subsidence Mitigation Measures, New Georgia Landfill, submitted to HDR Engineering, Inc. (October 1994).

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present along the northwest side of the Subtitle D cell. Id. The City's 1994 Permit Application states that "according to a report prepared by the Alabama Department of Environmental Management (Lovoy, 1992), there are no public water supply wells within a two (2) mile radius of the landfill." See 1994 Pern1it Application (citing Area 4 Report, Geohydrology and Susceptibility ofMajor Aquifers to Surface Contamination in Alabama - Planer! and Pritchett !989).

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55. De111ographics. The demographics, as they relate to African American populations around the Cedar Hill Landfill, the service area, and the State of Alabama are as follows:

Name of Miles Total African Percent o/o African % African Landfill (Radius) Population American African American in American in Population American Service State Arna

New Georgia 1 2,259 1,746 77.3% 39.3% 26%

2 11,724 8,575 73.1% 39.3% 26%

3 28,678 19,372 67.6% 39.3% 26%

4 52,309 35,840 68.5% 39.3% 26%

See EPA Demographic Analysis (January 2003).

56. Permitting History. The permitting history is as follows:

1971: original Solid Waste Disposal Permit issued by ADEM.

1994: In 1994, the City of Birmingham sought approval from ADEM to modify its Solid Waste Permit to construct and operate a new 30.5 acre Subtitle D-com.pliant (lined disposal area) on a portion of the Landfill.

November 2, 1998: ADEM issued Solid Waste Disposal Permit, No. 37-11, to the City for the Landfill on November 2, 1998, approving the ne\v 30.5 acre Subtitle D landfill with a maxim.um. average daily volume of 1200 tons per day ofwaste.41

January 1999: Two months after receiving th.is "Subtitle D permit," the City of Binningham requested a modification of its Permit to re-designate the entire 30.5 acre Subtitle D portion of the landfill as "an unlined construction/demolition landfill." See Letter from James Stewart, Director ofStreets and Sanitation, City ofBirmingham, to Rao Malladi, ADEM (January 28, 1999).

June 25, 1999: The Permit was modified on June 25, 1999 allowing for a disposal area of30.52 acres designated only for construction/demolition waste. See Solid Waste Disposal Permit No. 37-11, at Section IIIA.(2).

41 There are no point source water discharges from the Landfill and storm\vater discharges under regulated by ADEM under an NPDES general Stormwater permit. See Landfill Permit Application, Ne\1,' Georgia Landfill (Deceniber 1994).

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May 2001: The City of Birmingham requested approval to close the vertical expansion area oftl1e Landfill.

57. Title VI Trigger. The June 25, 1999 modification was the trigger action cited by complainants as violating EPA's Title VI regulations. See Letter from Luke Cole to Carol Browner, EPA Ad1ninistrator (December 1999). This modification was considered by ADEM to be "minor modification" because it was a downgrade of the Facility from a Subtitle D-compliant landfill to a construction/demolition (C/D) landfill. See Notes ofNancy L. Tommelleo, EPA (from October 2002 ADEMfile review}.

58. The 1998-approved Subtitle D portion of the Landfill was to contain a 30.5 acre waste disposal cell, with a composite liner, ground\vater and explosive gas monitoring systems, a leachate collection system, and run-on/run-off control systems, frnancial assurance, and plans for closure and post-closure maintenance (maxi1num life expectancy oft\ventyyears). A public hearing on the new Subtitle D portion of the Landfill was held January 24, 1995 and a certificate of local approval dated January 24, 1995, was submitted to ADEM. See Landfill Permit Application, New Georgia Landfill (December 1994) (Letter of Consistency from the Birmingham Regional Planning Commission). Approved municipal solid \Vaste consisted of"all non-hazardous, non-infectious petruscible and non-petruscible wastes including but not limited to household garbage, industrial waste, construction and demolition debris, tires, appliances, trees, limbs, stumps, dried sludges, paper and similar type materials." See Solid Waste Disposal Permit, No. 37-11 (effective November 2, 1998). Approved "special wastes" were asbestos waste, foundry sand, petroleum contaminated waste, municipal solid waste ash, and medical \Vaste. Id.

59. Two months after receiving this Subtitle D Permit approval (in January 1999), the City of Birmingham requested a modification of the Permit to re-designate and downgrade the entire 30.5 acre Subtitle D portion of the Landfill to a CID landfill.42 This request was approved on June 25, 1999, and left the 3 areas to the Landfill as: the vertical expansion sanitary landfill area, the new CID area, and the old closed sanitary landfill portion. See Notes ofNancy L. Tommelleo, EPA (October 2002 ADEM File Review). Approved co11structio11 and demolition waste for 30.5 the acre CID portion of the Landfill includes (but is not limited to): \vood, sheet rock, roofing, paper, glass, plastic, cardboard, insulation, scrap metal, masonry, asbsestos. See Solid Waste Disposal Permit No. 37-11 at Table VIII.I and Section VIIIB. Municipal solid waste ash and medical waste are not permitted for disposal in the CID waste disposal area. Id. at Section VIIIB

60. Because the entire permitted Landfill area still consisted of a sanitary waste landfill (in the vertical expansion area ai1d in the old closed sanitary landfill), the June 25, 1999 modified Permit continued to req1tire the City ofBinningham to monitor groundwater for all areas of the Landfill, including the CID area. Id. There are three ground\vater monitoring wells located i11 the CID

42 ADEM staff speculate that this request for a downgrade was politically motivated. See Notes ofNancy L. Tommelleo, EP'"1 (October 2001 ADEM File Review).

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area. Id. In addition, the modified Permit requires the City to cover all the CID waste disposal area working face "at the conclusion of each week's operations with a minimum of six inches of soil or alternative cover as approved by the Department." Id. at Section VIII C.

61. Despite the approved modification to a CID landfill in June 1999, no construction or demolition waste has been accepted for disposal at the Facility and as of April 2000, no waste of any kind was being accepted under the 1999 modified pennit. See Notes ofNancy L. Tommelleo, EPA (October 2002 ADEM File Review). In May 2001, the City requested approval to close the vertical expansion area of the Landfill. This closure was supposed to begin in January 2002 and is scheduled to be concluded by February 2003. See Letter from ADEM, to Stephen Fancher, Sanitation Director, City ofBirmingham (May 8, 2001); Notes ofNancy L. Tommelleo, EPA (October 2002 ADEM File Review).

3. Florence Landfill (Lauderdale County)

62. Backgro11nd. The Florence Sanitary Landfill is operated by the City of Florence and encompasses approximately 74 acres at the intersection of Savannah Highway (Hwy 20) and Waterloo Road in Lauderdale County, Alabama. The Landfill services 011ly the City of Florence and was originally permitted by ADEM as a sanitary landfill in 1984. As of 1987, the Facility was receiving approximately 205 tons per day of sanitary waste. See Florence Sanitary Landfill Solid Waste Disposal Application (December 27, 1987).

63. Site Description. The 74-acre Facility has seve11 areas or cells that have been permitted for sanitary waste disposal. Cells A-1 and A-2 were used for sanitary/municipal solid waste disposal areas but have been closed. Cell A-3 is currently used for municipal solid waste disposal and is located closest to the Facility's entrance. See Letter from David Koonce, City ofFlorence, to Russell A. Kelly, ADEM (July 29, 1999) (attaching map ofLandfill). Cells B-1 and B-2 were permitted for municipal solid waste but were not constructed as of 1999. Cells C-1 and C-2 are used for CID waste disposal. See Letter from Russell A. Kelly, ADEM, to David Koonce (June 25, 1999).

64. Surface water from the site flows northeast toward Cypress Creek (which flows south and into the Tem1essee River approximately 2 miles to the south of the Landfill). See Memorandum from Dale Case, ADEM. to Gerald Hardy, ADEM (January 7, 1993). Topography in the area is hilly to gently rolling and surface elevation range from 440 feet to 590 feed above sea level. Id. Groundwater flow is predominantly toward the southeast. See Florence Sanitary Landfill Solid Waste Disposal Permit Application, prepared by Ground Engineering and Testing Service, Inc. (December 21, 1987); Memorandum from Dale Case, ADEM, to Gerald Hardy, ADEM (January 7, 1993). As of 1993, all residences nearby are on a public water supply system, except for one residence located on Waterloo Road. Memorandum from Dale Case, ADEM, to Gerald Hardy, ADEM (January 7, 1993).

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65. De111ographics. The demographics, as they relate to African American populations around the Florence Landfill, the service area, ai1d the State of Alabama are as follows:

Name of Miles Total African Percent o/o African % African Landfill (Radius) Population American African American in American in Population American Service State Arna

Florence 1 414 28 6.8% 19.3% 26%

2 6,736 2,460 36.5% 19.3% 26o/o

3 18,889 4,961 26.3% 19.3% 26%

4 34,011 7,398 21.8% 19.3% 26%

See EPA De1nographic Analysis (January 2003).

66. Permitting History. The permitting history is as follows:

• 1/5/84: The City was originally issued a Solid Waste Disposal Permit (No. 39-05) by ADEM for a sanitary landfill.

• 1987: Renewal and re-issuance of Permit No. 39-05 was made by ADEM.

• 1991: Permit was modified in 1991 to provide for an unlined inert disposal area, and to revise groundwater monitoring parameters. See Undated "Summary" for Florence Sanitary Landfill, prepared by Ground Engineering and Testing Service, Inc.

• 1993: Renewal and modification of the Permit sought by the City of Florence in 1993. Modification was for Landfill to become Subtitle D compliant (liner and leachate design for new disposal areas and financial assurance .plans to be added to existing permit). See Permit Modification Application for Florence Sanitary Landfill (September 16, 1993).

• 1994: Permit modification request made in 1994 to laterally expand into a lined cell with a leacl1ate collection. See Permit Modification Application, prepared by Ground Engineering and Testing Service, Inc. (December 9, 1994).

•April 13, 1995: Permit Renewal and modification to make Landfill Subtitle D­ compliant.

• June 25, 1999: Permit modification approved by ADEM for structural changes to cells and surface water controls.

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• 6/2/00: Pennit was modified (to increase tonage per day to 250 tons, changes in the design of cells, and the permitting of a construction/demolition area) and reissued by ADEM on June 2, 2000. See Solid Waste Disposal Pennit (effective June 2, 2000).

67. Title VI Trigger. The trigger date of Title VI complaint was the June 25, 1999 modification. This modification changed some existing cell and surface water control structures. More specifically, the inodification entailed 1) an extension of the existing composite liner in Cell A-3 (currently used for municipal solid waste disposal) up a portion of the slope of Cell A-2 (closed municipal solid waste cell) with the designation of this area as CellA-2/A-3; (2) a inodification of the cell liner elevations in Cells B-1 and B-2 (municipal solid waste cells not constructed yet) - this modification would not entail any expansion into areas not previously permitted as municipal solid waste; (3) changes to the closure elevations/contours of Cells A-2, A-3, B-1, B-2, C-1, and C-2 (municipal solid wastes and construction/demolition waste cells); and (4) some changes to the surface water control structures (surface elevations and drainage structures for the closure of the vertical expansion area of Cell A-2).43 See Letter from Russell A. Kelly, ADEM, to David Koonce (June 25, 1999). The modification was not a proposal to change the size of the facility, the facility's service area, or the maximum daily volume of wastes that would be disposed. See Solid Waste Disposal Permit (effective June 2, 2000); Letter from Russell A. Kelly, ADEM, to David Koonce (November 28, 1998).

4. Pinevielv Sanitary Landfill {\Valker County)

68. Backgroztnd. The Pineview Sanitary Landfill is a municipal solid waste landfill that is O'\Vlled and operated by Browi1ing-Ferris Industries (BFI) and located at 2730 Bryan Road, approximately two miles south of Sumiton on Hwy #22 in Walker County, Alabama. 44 This location is about 30 miles north of Birmingham. The Landfill is a regional landfill which services 9 counties (Walker, Jefferson, Shelby, Cullman, Blount, Winston, Fayette, Marion, and Tuscaloosa).45 It began operation in 1993 and accepts non-hazardous, non-infectious wastes,

43 ADEM determined to the modification to be "major" under 335-13-5-.06(1) because of the proposed addition of the liner and leachate collection system, as an expansion of Cells B-2 and B-2, into the CID disposal areas C-1 and C-2. See Letter from Russell A. Kelly, ADEM, to David Koonce {i'vfay 28, 1999).

44 The Walker County Commission considered the cost to the County to operate its own Subtitle D landftll to be too great for that option to be feasible, given the fact that a majority of the County's residents already refused to use the waste disposal service the County was then operating, for which only a small fee was charged. Consultants to the County estimated that it would cost the County approximately $2.5 million to $3 million to construct a landfill meeting Subtitle D requirements, approximately $750,000 per year to operate the landfill, and greater than $1 million more for post-closure monitoring requirements. See Beavers v. County of Walker, Alaba1na et al., CV-91- 750 (Sup. Ct. Alabama June 24, 1994).

45 Actually, there were a total of five (5) landfills in \Valker County in the early 1990's. The County's Argo Sanitary Landfill to the \Vest of the Pineview Landfill was not Subtitle D compliant and could not accept waste after October 9, 1993. Beavers v. Count}' of Walker, Alaba1na et.al, CV-91-750 (Sup.Ct. Alabama June 24, 1994). The City of Jasper, Alabama's sanitary landfill was also not Subtitle D-compliant and had to close or become inert

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including household garbage, industrial wastes, construction and demolition debris, tires, appliances, yard wastes, dried sludges, ashes, paper and similar waste. The site is permitted to handle a daily volume of 1500 tons per day. See Solid Waste Disposal Permit, No. 64-11 (Effective October 28, 1999).

69. Site Description. The site comprises 691 total acres in a staircase-type configuration (that moves left-ta-right). One hundred and sixty-six (166) of the 691 acres of the site are designated for disposal. The Southern Railroad runs east-west across the site and essentially divides it in half. Topography of the site is generally characterized by ridges and valleys in a northeast­ southwest trend. Elevations across the site range from 320 to 530 feet displaying generally moderate to steep (10 to 25 percent) slopes. See Pine View Site Characterization Study, prepared by Walker County Disposal, Inc. (September 1991).

70. The Pineview Landfill site impacts several water bodies that ultimately flow into the Warrior River. A portio11 of the Landfill site is situated on Burnt Cane Creek which is a tributary of the Mulberry Fork of the Warrior River. See Letter from Joel Rhaly, The Bir1ningham Water Works Board, to Gerald Hardy, ADEM (February 3, 1993). Intermittent streams drain the site west of Byran Road (which co11sists of most of the Landfill property and all of the cells) into Burnt Cane Creek (to the west), \Vhile the area east of Bryan Road drains to the Locust Fork of the Black Warrior River.46 See Pine View Site Characterization Study, prepared by Walker County Disposal, Inc. (September 1991). The Facility has a storm water management system with both permanent and temporary control structures, including diversio11 berms and sediment ponds. See BFI's Pineview Sanitary Landfill Fact Sheet.

71. Groundwater flows primarily southwest over a majority of the Landfill site, although in the

(take only yard waste/construction and demolition waste) after October 9, 1993. Two other landfills in \Valker County were already closed by 1990 - the Lost Coal Company landfill approximately 5 miles west of Jasper and a closed Jasper landfill just to the south outside the City of Jasper. See Solid Waste Management Plan for Walker County, prepared by PERC Engineering Co., Inc. (Nove1nber 15, 1990). \Valker County also had, as of 1990, one waste transfer station/inert landfill - the Carbon Hill Transfer Station and Inert Landfill, which was located approximately 5 miles west of Jasper on U.S. 78. Id.

46 This drainage was confinned by a 1995 EPA investigation ofthe Pineview Landfill and its potential impact on the Yerkwood community. See Letter from Dan J. Rondeau, Director, EPA Office of Civil Rights, to Connie Tucker, Executive Director, Southern Organizing Conzmittee for Economic and Social Justice (June 8, 1995); Letter from Dan J. Rondeau, Director, EPA Office of Civil Rights, to Connie Tucker, Executive Director, Southern Organizing Committee for Economic and Social Justice (September 28, 1995). Pursuant to this 1995 investigation (discussed in more detail below), a 7 .5 minute series topographic map (confmned by a site visit) revealed that most of the Landfill property does not drain directly through the Yerkwood cornrnunity, but rather drains into Burnt Cane Creek. Letter from Dan J. Rondeau Director, EPA Office ofCivil Rights, to Connie Tucker, Executive Director, Southern Organizing Com1nitteefor Economic and Social Justice (September 28, 1995). This Creek then flows by the Yerkwood community at its northeastern end. The investigation concluded that run-off from only a small area of the Landfill property along the perimeter "could flow through Yerkwood .. " See Letter from Dan J. Rondeau, Director, EPA Office of Civil Rights, to Connie Tucker, Executive Director, Southern Organizing Co1nmitteefor Economic and Social Justice (June 8, 1995). 47 Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 139 of 187

northern portion of the site groundwater flows to the north. See BFJ's Statistical Analysis of Ground Water Quality First Semi-Annual Event 1995, Pineview Landfill (March 14, 1995 Potentiometric Map Shallow Saturated Zone); BF! Ground Water Statistical Analysis Report (September 2002 Sampling Event). There are seven groundwater monitoring wells on site: three upgradient (or background) wells and four downgradient wells. BF! Ground Water Statistical Analysis Report (September 2002 Sampling Event). The three upgradient wells are located at the northeast corner, east side, and southeast comer of the site. Id. The four downgradient groundwater monitoring wells are located at a central northern point, the northwest comer, the west side, and at the southwest comer of the site. Id. As of 1993, there were 32 active private wells within a one-mile radius of the site.47 See Letter from Sue R. Robertson, ADEM, to Walker County Disposal, Inc. (March 12, 1993).

72. The Landfill contains 7 cells, each comprising a 15-35 acre area and has a design capacity of 21 million cubic yards (thus making it a "large" landfill subject to federal air emission regulations), and bas an operational lifetime of approximately 30 years. See BF! Pineview Sanitary Landfill Fact Sheet. The cells are centered i11 the middle-to-northern portion of the site (all north of the Southen1 Rail\vay line which divides the site in half). See Site Characterization Study for Pine View Sanitary Landfill (September 1991). The Landfill entrance is on the east side of the site. Id. The incoming solid waste is dumped near the working face of the active cell. Several bulldozers spread and compact the waste i11to approximately 8-foot lifts which are covered daily with 6 inches of soil or other approved alternate daily cover. See March 27, 1996 Pine View Sanitary Landfill Summary (from EPAfiles)(no author). No \vaste can be seen from the entrance to the Facility. See Trip Report from Nancy L. Tommelleo, EPA (January 28, 2003).

47 In response to comments on the Pineview Permit Application, ADEtvl states that of these 32 active wells, 13 are located in such a way that they will not receive groundwater from beneath the site; six of the remaining 19 \Velis are hydraulically up gradient from regional ground\vater flow and are not considered to be in the direction of the groundwater flow from the Landfill. See Letter from Sue R. Robertson, ADE.Al to Walker County Disposal, Inc. {March 12, 1993). ADEM also stated that ofthe remaining 13 active wells, one well was located on the opposite side of Burnt Cane Creek (\vhich acts as a hydraulic barrier between the well and the Landfill) and landfill operations \Vere not planned for the area north of the other 12 wells. Id. 48 Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 140 of 187

73. Deniographics. The de1nographics, as they relate to African American populations around the Pineview Landfill, the service area, and the State of Alabama are as follows:

Name of lvfiles Total African Percent % African o/o African Landfill (Radius) Population American African American in American in Population American Service State "''" Pineview I 430 1 0.2% 26.4% 26o/o

2 l,860 59 3.2% 26.4°/o 26%

3 5,893 464 7.9% 26.4% 26%

4 9,983 712 7.1% 26.4% 26%

See EPA Demographic Analysis (January 2003).

74. The Pineview Landfill is surrounded by a number of small conununities at varying distances from the site. The Sellers community is directly north of the Landfill along either side of Bryan Road (\vhich is the main artery into the Landfill - running north/south along the Landfill's eastern border), the community of Bryan abuts the south/southeast corner of the Landfill and has a number of residences along Bryan Road and Ball Park Road, the community of Morgan Chapel is directly to the south, the community of Quinton is further south, the community of Burnell is directly to the west, the community of Dora is further to the north of the Landfill, and the community ofYerkwood is located to the south/southwest of the Landfill. See Pineview Landfill Neighborhood Map; Trip Report ofNancy L. Tommelleo, EPA (January 28, 2003). The communities of Bryan and Sellers are closest to both the entrance of the Landfill and to the active portions of the Landfill. Trip Report ofNancy L. Tommelleo, EPA (January 28, 2003). Except for the Y erkwood community, the other communities surrounding the Pinevie\v Landfill are primarily non-African American. See EPA Demographic Map for Pineview Sanitary Landfill. The Y erkwood community is 100% African American. See EPA Demographic Map for Pineview Sanitary Landfill.

75. Truck traffic for the Landfill currently comes only from the north side of the Landfill - from the Highway 78 corridor which is a major state highway running north/south through Sumiton. See Trip Report ofNancy L. Tommelleo, EPA (January 28, 2003). Trucks enter Bryan Road from the north of the Landfill at Highway 78 (at Sumiton) and travel approximately two miles south on Bryan Road to the Landfill entrance. Id. Through posted "NO TRUCKS" signs, trucks are prohibited from using Bryan Road south of the Landfill entrance and are prohibited from using other neighborhood streets in the communities that surround the Landfill area. Id. Groundbreaking is well underway for what looks to be a major state high\vay running east-west through the Bryan and Yerkwood communities, just south of the Landfill entrance. Id.

76. Con1111u1iity Opposition. Community opposition to the Landfill began in 1990 at the public hearing for Walker County's Solid Waste Disposal Plan. The Plan had already identified the

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Bryan site for a regional landfill and the County Commissioners had already entered into a contract \Vith BFI to run the Landfill. See Public Hearing Before Walker County Commission Regarding Sanita1y Landfill (November 1, 1990). Continuing concern over local government approval for the Bryan site led to a 1991 lawsuit by residents of the Bryan community against the County and BFI. See Ralph Beavers. et al. v. County oflValker, Alabama et al .. Case No. CV- 91-750 (Sup. Ct. Ala. 1994). 48 As a result of that litigation, the original County approval for the Pineview Landfill was voided by the Alabama Supreme Court and the matter was remanded to Circuit Court. Id. Subsequently, new County approval was obtained for the Pineview Landfill at the Bryan site and a Consent Agreement \Vas reached with the Bryan commm1ity plaintiffs. See Ralph Beavers, et al. v. County o(Walk:er. Alabama, et al., Case No. CV-91-750 (Cir. Ct. Ala. June 29, 1995) (Order CertifYing Class Action, Approving Settle1nent and Final Judgment). As part of the Consent Agreement, a Citizens Advisory Committee of The Pineview Landfill was established. Id. This Advisory Committee was made up of members from the Bryan community, the Sellers community, the Morgan Chapel community, and the Yerkwood community. Id., see also Letter from Ralph Beavers, Citizens Advisory Committee of The Pineview Landfill, to ADEM (April 6, 1999).

77. The Advisory Committee has remained actively concerned with the Landfill, complaining in April 1999 of odor, birds, traffic, wrecks, dust, mud, and rats on behalf of the "1200 residents that live around the landfill," See Letter from Ralph Beavers, Citizens Advisory Committee of The Pineview Landfill. to ADEM (April 9. 1999)(with attached list ofresidents along Bryan Road and Ball Parle Road), and agai11 of odors in February and October 2000. See Letter from Russell A. Kelly, ADEM, to Ralph Beavers, Citizens Advisory Conimittee of The Pineview Landfill (February 8, 2000); Letter from Ralph Beavers, Citizen Advisory Committee of The Pineview Landfill, to Bill Wood, ADEM (October 11, 2000). The Advisory Committee also complai11ed to ADEM in January 2002 of"excessive truck traffic, inappropriate tarping of garbage, the obnoxious "odor" (seven days a week), and excessive and disturbing noise." See letter from Ralph Beavers, Citizens Advisory Committee of The Pineview Landfill, to Russell A. Kelly, ADEM (January 9, 2002 facsimile). 49

48 There were also several nuisance cases filed against BFI regarding the Pineview Landfill. See Letter from Rebecca Williams Block, Burr & Forman LLP, to Russell Kelly (January 18, 2000). Trial on these cases was scheduled in February 2000. Id. No other information has been obtained by the investigation team regarding these cases.

49 In addition to the Advisory Committee, general community opposition to the Landfill was voiced at the public hearing for ADEM's solid waste disposal permit and general stonn water permit for the Facility in 1993. See Transcript ofPublic Hearing on Pineview Sanitary Landfill per1nit application (January 14, 1993). The Binningham \Vater \Yorks Board also expressed concern that any surface water contamination of Burnt Cane Creek would affect the Board's water intake location which, at that time, supplied the Birmingham metropolitan area with 22% of its water. See Letter ji·om Joel Rhaly, Birmingham Water Works Board, to Gerald Hardy, ADE!vf (February 8, 1993). In response, ADEM noted that proper storm water management from the Facility would prevent surface water contamination. See Letterfi·om Sue Robertson, ADE,w, to Commentors (March 12, 1993). \Vith regard to this specific issue, U.S.E.P.A. also stated that ADEM had indicated that "in the unlikely event ofa release, surface water that might flow from the site would enter the Warrior River down stream of the intake for Birmingham \Vaterworks,

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78. Per111itting History. The permitting history is as follows:

Solid Waste Disposal Permit

•March 12, 1993. Original Solid Waste Disposal Permit #64-11. Average daily volume permitted at 1500 tons per day. The Landfill was permitted to accept:

All non-hazardous, non-infectious, putrescible and non-putrescible, wastes including, but not limited to, household garbage, approved industrial wastes, approved special wastes, construction and demolition debris, tires, appliances, tree stumps, dried sludges, ashes, paper, and similar type material.

See Pineview Solid ivaste Disposal Permit (No. 64-11), issued October 28, 1999. Approved "special waste" for the Landfill is asbestos waste, foundry sand, petroleum contaminated waste and municipal solid \Vaste ash. 50 Id.

•November 4, 1994: modified Solid Waste Disposal Permit #64-11 to reflect ne\V "local approval" date (local approval by the Walker County Commission following a court decision which voided the pre\rious local approval).

•July 24, 1996: modified Solid Waste Disposal Permit #64-11 to transfer the name of permittee to BFI Disposal Systems of Alabama, Inc. In addition, alternate daily cover was approved which consisted of a polyethylene tarp with cover soil applied at least once every four days.

• August 26, 1988: modified Solid Waste Disposal Permit #64-11 to allo\v for other alternate daily cover.

• October 28, 1999: Solid Waste Disposal Permit #64-11 re-issued/renewed.

•March 12, 2002: Solid Waste Disposal Pennit #64-l I inodified to provide for an alternative liner.

and would not be dra\vn into the water system." See Letter fronz Patrick Af. Tobin, Acting Regional Administrator, to Ralph Beavers, Concerned Citizens for a Better Environnzent (June 18, 1993).

50 An Industrial and Special Waste Management Plan has been developed specifically for the Pineview Landfill which outlines the steps required of a generator to characterize its waste, provide analytical data, or submit · samples for complete analysis. fu addition to initial sampling and analysis, wastes are periodically tested for compatibility with the manifest and the generator's waste characterization data sheet. Gate house personnel, equipment operators, spotters, facility managers and laborers undergo in-depth semiannual training to identify acceptable and unacceptable wastes. See Draft March 27, 1996 Pineview Sanitary Landfill Summary {from EPA files) (author unknown).

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Air Permits

•Title V Permit/Air Emission Regulations. Because the Pineview Landfill has a design capacity of 12 million megagrams, it became subject to Subpart WWW of the NSPS in 1996. Subpart WWW requires the Facility to obtain a Title V major source operating permit.51 BPI submitted its Title V permit application for the Pineview Landfill on January 6, 2000. The Title V permit was issued by ADEM on November 20, 2000 (Facility# 414-0013). See Memorandum from Gerald Griffies, ADEM, to Larry Brown, ADEM (November 16, 2000) . .

Water Permit

• Storm \Vater permit: EPA Regulations required facilities to apply for storm water permits by October I, 1992. Alabama issued General Permit #ALG 160000 for landfills on January 10, 1992. On November 24, 1992, Walker County Disposal Inc. submitted a Notice of Intent to be covered under the General Permit for storm water discharges from the proposed Pineview Sanitary Landfill to unnamed tributaries of Burnt Cane Creek and Locust Fork. See ADEM Public Hearing Transcript for Pineview Sanitary Landfill at 20- 21.

• NPDES permit. The facility has no NPDES permit because it makes no discharge to surface waters from a point source.

79. Title VI Trigger. The October 28, 1999 Solid Waste Disposal Permit re11ewal and reissuance is the trigger action cited by complai11ants as violating EPA's Title VI regulations. See Letter from Luke Cole, Center on Race, Poverty & the Environment, to Carol Browner, EPA Administrator (December 17, 1999). Except for a name change for the operator, this permit re­ issuance and renewal did not substantively alter or change the previously approved permit (i.e., service area, disposal volume, engineering designs, or plans). See Letter fron1 Russell A. Kelly, ADEM, to Adjacent Land Owners (September 20, 1999). Public notice and comment on the permit re-issuane/renewal was sought by ADEM in September 1999. Id. In addition to the name of o\vner change (to BFI Waste Systems of North America, Inc.), several "minor" modifications were made in renewal as noted below:

•gas monitoring points located at maximum spacing of300 feet along the landfill permit boundaries (instead of 1,000 feet);

•gas monitoring points spaced at 100 feet or less where an off-site dwelling is within !ODO feet of the boundaries (instead of spaced every 50 feet);

• monitoring of gas will measured at least once per quarter and submitted to

51 40 C.F.R. § 60.752 (b).

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ADEM within 30 days (instead of annually and submitted upon ADEM's request);

• industrial waste generator certifications and approvals required to renewed biennially (every two years) - (instead of annually).

• groundwater monitoring wells and gas monitoring points will be clearly marked and identified, protected and maintained in good repair and easily accessible (rewording original permit condition only slightly).

80. Prior EPA Enviro1in1ental Justice I1zvestigation (1995196). In February 1995, several complaints were received by EPA Region 4 from concerned residents and organizations regarding contaminated conditions in their neighborhood \Vhich they believed to be caused by the Pineview Landfill. See Letter from Connie Tucker, Southern Organizing Committee for Economic and Social Justice, to John Hankinson, EPA Region 4 (February 25, 1995); Letter from to fVilliam Reilly, EPA (August 14, 1995). In response to these citizens' complaints, EPA Region 4 conducted an enviro11me11tal justice investigation spanning an 11- month time frame (August 1995 - June 1996).52 An initial investigation occurred in August 1995 and a 2-phase follow-up investigation occurred in February and April of 1996.

81. During the initial inspection visit (August 7-8, 1995), EPA Region 4 representatives evaluated the operation of the Landfill for compliance with the Clean Water Act and RCRA's Municipal Solid Waste Landfill Criteria. See Undated Memorandum to File re: Pineview Landfill Site Visit, August 7-8, 1995. The RCRA portion of the site visit focused on the operating, design, and ground water monitoring portions of Subtitle D requirements ai1d found:

• no "significant odors encountered during site visit;" • no disease vectors; • no methane gas detected at the property boundary permanent wells; • no evidence of open burning of solid waste (this was "air criteria" analysis); and •no statistically significant increase of constituents from review of 1995 ground water monitoring data.

82. Neither the EPA Region 4 water representatives nor the EPA Region 4 waste representatives could substantiate any of the allegations during August 1995 inspection and meeting, finding, instead that " ... our inspection did not indicate that the landfill was the source of the citizen's environmental concerns of odor, rodent and insect infestation, and water quality degredation ...." See Electronic mail fi·om Jeannie McNeil, EPA Region 4, to Roger Pfaff, EPA Region 4 (August 30, 1995). In particular, the investigation team concluded that:

52 This environmental justice investigation was requested by the Region's Water Management Division in support of the Environmental Justice Program and in response to environmental concerns as expressed to the Region by Yerkwood residents about the Pineview Sanitary Landfill. See USEPA Region IV Environmental Justice Investigation Report, Pineview Sanita1y Landjill/Yerkwood Conznzunity, Walker County, Alaba1na (April 1996).

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the information gathered during our site visit to the Pineview Sanitary Landfill does not support the allegation that the facility is having significant adverse effects on the Yerkwood commllllity. Odor problems were not encountered. Storm water and leachate appeared to be managed in a manner that is protective of human health and the environment, and the storm water discharge date supports this fmding. The ground water is being monitored for contamination, and a statistically significant increase has not been observed. A methane monitoring program has been implemented. Daily cover appears to be controlling odors and disease vectors. The facility appears to be operating llllder the requirements established under the federal municipal solid waste landfill criteria.

See Memoranduni to EPA Region 4 File "Pineview Landfill Site Visit (undated). The team also noted that:

antifreeze, motor oil, and other such containers had been discarded behind an automobile repair shop in the Y erh."Wood community into a small tributary of the creek, and there was a pile of ho1isehold waste (soda bottles, paper plates, etc.) placed next to the creek behind the community church. These and other practices may be a contributing source of contamination for the creek and provide conditions conducive to rat infestation.

Id. The investigation team recommended that "the Agency for Toxic Substances and Disease Registry (ATSDR) along with EPA work with the commllllity to investigate possible sources and causes of rodent and insect infestations, odors, and water quality degradation of the stream which flows arolllld their community." Id. In addition, following a meeting \Vith a representative of the Southern Organizing Committee, EPA Region 4 agreed to take storm water samples during a period of wet weather to furtl1er respond to the concerns of the community. See Letter from J. Kelly Ewing, EPA Region 4, to Afr. Rick Losa, Walker County Disposal, Inc. (November 3, 1995); Memorandum from EPA Region 4 files (no author), "BFI/Yerkwood, Alabama Environmental Justice Complaint (March 26, 1996).

83. Phase I of the follow-up investigation was conducted during February 26-29, 1996, and focused primarily on the characterization of the water streams within the Landfill and the Yerlcwood Community and the evaluation of the overall physical conditions of the entire area. Phase II, which occurred during April 22-25, 1996, focused on answering follow-up questions from findings made in Phase I. See USEPA Region IV Environmental Jztstice Investigation Report, Pineview Sanitary Landfill/Yerlcwood Community, Walker County, Alabama (April 1996). Under both Phases, the objectives of the investigation were to (1) characterize the water streams surrollllding the Landfill and the Yerkwood Community under both dry and wet weather condition; (2) evaluate the overall physical conditions of the areas surrounding the Landfill and the Yerkwood Commllllity; (3) collect water, wastewater, sediment, and air samples from the Landfill; (4) evaluate the overall operation and maintenance of the Landfi11's wastewater treatment system; and (5) revie\V records of the wastewater treatment system's performance and overall history. Id. at p.3.

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84. The 1najor fmdings of the Phase I and II inspection were:

•the major source of high fecal coliform counts in Burnt Cane Creek were attributable to sewage seepage from a broken manhole adjacent to a tributary of Burnt Cane Creek;

•high fecal coliform counts in 2 unnamed creeks that ran through the Yerkwood Community were from sewage seeping from home septic tank lines; discharges from the Landfill did not flow into either unnamed creek.

•elevated fecal coliform counts from the Land:fill's stormwater outfall #002 were possibly caused by a small sewer from a trailer outside the Landfill property;

•fecal coliform counts from the Landfill's stormwater outfall #004 increased significantly after rainfall events and.were possibly caused by a truck wash-do\Vll pad and vehicle waiting area at the Landfill entrance;

• the Landfill 's stormwater discharges may have some impact on water quality in Burnt Cane Creek;

• air samples collected in the Yerkwood Community did not detect VOC concentrations appreciably higher than those found in the background sample and no unusual levels of voes were detected at the Landfill;

• isolated areas of discarded solid wastes were found in the Yerkwood Community which could contribute to vector problems;

• drainage of storm water from the Yerkwood Co1nmunity did not appear to be adequate; and

• the solid waste disposal operations at the Landfill appeared proper.

85. During Phase II of the inspection, EPA was accompanied by ATSDR whose representative foc11sed on locating the source of the community's alleged rodent and insect infestation (mosquitos) problems. See Memorandum to EPA Region 4 File "Pineview Landfill Site Visit (undated); Notes ofNancy L. Tommelleo, EPA, from meeting with Bob Safay, ATSDR (December 9, 2002). ATSDR's inspection of the Yerkwood Community during Phase II revealed clogged drainage ditches (from debris and trash), leaking septic tanks, and open dumps behind houses and near Burnt Cane Creek.53 Id. According to ATSDR's representative, the Yerkwood Community's odor, rats, and insects (mosquitos) were coming from the community itself and not from the Landfill. See Notes ofNancy L. Tommelleo, EPA, from meeting with Bob Safay, ATSDR (December 9, 2002).

53 ATSDR has a short videotape of this inspection which it has offered to make available.

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86. Prior Title VI Complaint (199 5). One month after the citizens' complaints were initially made to EPA Region 4, a Title VI complaint was filed \Vi th EPA's Office of Civil Rights by the Southern Organizing Committee for Economic and Social Justice on behalf of citizens of the Yerkwood community concerning the Pineview Landfill (March 8, 1995). See Letter from Connie Tucker, Southern Organizing Committee for Economic and Social Justice, to Daniel Rondeau, EPA 's Office of Civil Rights (March 8, 1995). The Title VI complaint was based on the November 1994 SWD permit modification and asserted that the Landfill caused: leachate contaminatio11 of groundwater, contaminated storm water run-off which drains into the Yerkwood community, and truck traffic, noise, odors, disease vectors (rodents and insects). Id. Tue complaint alleged that adverse health effects from these alleged impacts were respiratory and eye ailments, and cancer. Id. The complaint also alleged lack of public participation and that neither the local authority or ADEM had considered the six socioeconomic factors as required by Alabama's Solid Waste Disposal Act. Id.

87. Following two requests for further information, a supplemental complaint filed on April 18i 1995 (which primarily restated the March 1995 complaint but emphasized the disproportionate impacts related to drainage and run-off, rodent infestation, odors, and flooding on the Yerkwood community), several telephone conversations with the Southern Organizing Committee, receipt of information from ADEM and BF!, information from EPA Region 4's August 7 - 8, 1995 site visit, and a demographic analysis, EPA's Office of Civil Rights found:

•No measurable disparate impact (based on demographic data from the 1990 Census). The data showed 4,405 (6.5%) African Americans in Walker County, 291 (15.2%) Africai1 Americans in the Yerkwood census tract, and 290 (24.7%) in the Yerkwood block group. The Yerkwood block group did not have a disproportionately high percentage of African Americans (24.7%) compared to the State of Alabama (25.3%) or to the Landfill's nine-county service area (24.8%). In addition, of the nine counties served by the Landfill, four had a higher population density and percentage of African Americans than Walk:er County, and three had a higher number of African Americans; and

•That underlying facts did not support the allegations. This finding was based on OCR's conclusion that (1) run-off from the Landfill does not drain directly through Yerk\vood; (2) storm water permits for the site do not allow the discharge of leachate from the Landfill and ADEM inspections showed no violations; (3) Region 4 personnel visited the site and did not see any evidence of violations (odor, rodents, insects, methane gas emissions, ground water degradation, surface water degradation); and ( 4) there was no road access to the Landfill from the Y erk-wood side.

See Letter from Dan J. Rondeau, EPA 's Office of Civil Rights, to Ms. Connie Tuclcer, Southern Organizing Committee for Economic and Social Justice (September 28 ,1995). For these reasons, OCR did not pursue further processing or investigation of the complaint. Id.

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88. Co11tpliance: 1999-Present. ADEM perfonns, at minimum, quarterly unannounced inspections of the Landfill to detennine compliance with the Facility's Solid Waste Disposal Permit and General Storm Water Permit. See Ala. Admin. Coder. 335-13-6-.01. These inspections cover twenty general operational requirements, seventeen municipal solid waste landfill requirements, seven record-keeping and groundwater monitoring requirements, and eight storm water permit requirements. See ADEM Compliance Inspection Report (August 12, 2002). Of the fifteen inspections conducted by ADEM on the Pineview Landfill from December 17, 1998 through August 12, 2002, there \Vas only one violation identified in May 2000 for failure to lock one of the groundwater monitoring wells.54

89. In additio11, the Facility's Solid Waste Disposal Permit requires that the 7 groundwater monitoring wells (3 up-gradient; 4 down-gradient) be monitored semi-annually. See Pineview Solid Waste Disposal Permit No. 64-11. A review of groundwater monitoring reports from 1999 to the present reveals no evidence of groundwater contamination. In five of the seven sampling events during this time period, none of the parameters monitored at these wells exhibited statistically significant increases and no volatile organic compounds were detected.ss Of the remaining two sampling events, statistically significant increases in selenium (i11 September 2001) and potentially statistically significant increases in zinc (in March 1999) were noted but \Vere unverified at the next sampling event (that is, no presence of these metals was detected in the next sampling event).s6 See Ground Water Statistical Analysis Report, September 1999 Sampling Event, prepared by Herst & Associates (November 1999); Ground Water Statistical Analysis Report, Pineview Landfill, prepared by Herst & Associates (November 2001).

90. Similarly, a review of ADEM's storm water permitting files revealed that storm water monitoring from 1999 - 2002 showed no exceedance of any parameters. See Notes ofNancy L. Tommelleo, EPA (October 21, 2002). 57 The facility bas no NPDES permit because it makes no

54 One ADEM compliance inspection in May 2000 revealed an unlocked groundwater monitoring well in violation of ADEM Rule 335~13-4-.22(2)(e). As a result, a noncompliance warning was issued by ADEM to the Landfill on May 30, 2000. See ADEM NonC01npliance Warning to Pineview {May 30, 2000).

ss Groundwater is 1nonitored semi-annually for eighteen different metals: antimony, arsenic, barium, beryllium, cadmium, calcium, chromium, cobalt, copper, lead, magnesium, mercury, nickel, selenium, silver, thallium, vanadium, and zinc. See Ground Water Analysis Report, March 2002 Sanzpling Event, Pineview Landfill, prepared by Herst & Associates {lvfay 2002). In addition, 48 different volatile organic compounds are monitored including acetone, benzene, chloroform, styrene, and toluene. Id.

s6 The statistically significant increase in selenium in September 2001 was thought to be due to the natural variability at the site or from a source other than the landfill, since it appeared in both upgradient and down.gradient monitoring wells. See Ground Water Statistical Analysis Report, Pineview Landfill, prepared by Herst & Associates (November 2001). There was no statistically significant increase in selenium during the March 2002 sampling event. See Ground Water Statistical Analysis Report, Pineview Landfill, prepared by Herst &Associates (May 2002).

s7 The Pineview Landfill is permitted for 5 storm water outfalls. Four of the permitted outfalls are for landfill activities that do not contain leachate and one is for uncontaminated storm water from vehicle, equipment

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discharge to surface waters from a point source. Leachate from the facility is treated at ai1 on-site water treatment facility and is either trucked to the local waste water treatment plant for disposal or it used for dust control with the active cell and then recycled to the onsite waste water treatment plant. The treated leachate is not discharged with the storm \Vater. 58 See Letter from John H Hankinson, Jr., Regional Administrator, EPA Region 4, to Connie Tucker (March 7, 1995); Undated EPA Region 4 Memorandum to File re: Pineview Sanitary Landfill EPA Site Visit August 7-8, 1995.

91. Air co1npliance. Because the Facility's design capacity is 12 million megagrams, it is subject to the requirements of Subpart WWW of the federal New Source Performance Standards. Under these requirements, the Facility tested the actual non-methane organic compound emissions and found them to be under 50 megagrams per year (11.1 megagrams or 12.23 tons in 1997). See Letter from Dean Brown, EFL to Gerald Griffies, ADEM (April 14, 1997). With the Facility's non-methane organic compound emissions less than 50 megagrams, no collection and control system for these emission is required, although the Facility must submit periodic emissions reports and do periodic emissions recalculations. 59 See How ADEM Regulates Air Emissions from Landfills. prepared by Larry Brown and Gerald Grijjies, ADEM (November 2000).

92. Solely on the basis of being subject to Subpart WWW, the Facility was required to obtain a Title V major source operating permit, which was issued to the Facility by ADEM in November 2000. 60 The Title V permit only reflects the Subpart WWW requirements for periodic emissions

maintenance and storage and petroleum storage and refueling, that also does not contain leachate. Id. Two of the four permitted storm water outfalls (001 and 002) have treatment prior to discharge to surface \vaters. Outfall 001 has a temporary pond of unknown size at the lower end of the existing active area and a permanent pond which is designated as No. 1 and has an area of approximately 3.5 acres. Outfall 002 has pond No.2 which has an area of less than I acre. The ponds serve as sedimentation basins and provide some suspended solids removal. Outfalls 003 and 004 have no ponds or other forms of treatment. See Draft March 27, 1996 Pine View Sanitary Landfill Summary (from EPA files) (no author).

58 The facility generates approximately 185,000 gallons/month of leachate from the active landfill (as of 1996). The liquid leachate is collected by a network of perforated HDEP pipe installed on top of the composite liner. The collection system transfers the leachate to a sump at the lower end ofthe active area. The sump is equipped with a diesel-powered electric pump which is float operated. The pumping system transfers the liquid to the leachate treatment system which is designed to normally operate as a closed loop-recirculation system, i.e., no surface water discharge and thus no NPDES discharge permit is required. The leachate is collected, treated and recirculated back to the lined area of the site for dust control. Undated EPA Region 4 Memorandu1n to File re: Pineview Sanitary Landfill EPA Site Visit August 7-8, 1995.

59 40 C.F.R. § 60.752(b)(l).

60 No other criteria air pollutants are emitted at the Landfill in sufficient quantities, actually or potentially, to exceed the major source thresholds Wider the Clean Air Act. See Statement ofBasis, prepared by Gerald Griffies, ADEM (August 16, 2000). 58 Case 4:15-cv-03292-SBA Document 102-1 Filed 05/05/17 Page 150 of 187

reports and recalculations. 61 No violations of the Faciliy's Title V permit have been found. See Letter from Gerald Griffies, ADEM, to Mr. Paul Barnett, BF! (March 6 ,2002).

IX, TITLE VI ANALYSIS FOR ALLEGATION #1

ALLEGATION#]: ADEM VIOLATED EPA'S IMPLEl"1ENTING REGULATIONS BY ISSUING AND MODIFYING PERMITS FOR FOUR MUNICIPAL SOLID \VASTE LANDFILLS IN LAUDERDALE COUNTY, JEFFERSON COUNTY, ST, CLAIR COUNTY, AND \V ALKER COUNTY WHICH HAD THE EFFECT OF ADVERSELY AND DISPARATELY IMPACTING AFRICAN AMERICAN RESIDENTS IN THOSE COMl\fUNITIES

Allegation #1 asserts four disparate impact claims arising from ADEM's issuance and modification of four permits for municipal solid waste landfills in Alabama. Complainants contend that ADEM's method of permitting municipal solid waste landfills resulted in adverse and disparate impacts on African American residents around the following four landfills: Cedar Hill Landfill (St. Clair County), New Georgia Landfill (Jefferson County), Florence Municipal Solid Waste Landfill (Lauderdale County), and Pineview Landfill (Walker County). The adverse impacts alleged to have resulted from these actions were noise, odor, flies, wild animals, air pollution, traffic, and fear of groundwater contamination.

EPA's Title VI regulations require, among other things, that a complaint alleging a Title VI violation (1) describe the alleged discriminatory act which violates the regulations, and (2) be filed ''within 180 calendar days" of that allegedly discriminatory act. In the instant Title VI complaint, Complainants allege certain specified permitting actions as the discriminatory acts which violated EPA' s Title VI regulations. These specific actions were certain pelTilit modifications at three of the landfills (Cedar Hill, Ne\v Georgia, and Florence) and a permit renewal and re-issuance action at one landfill (Pineview). More specifically, the allegedly discriminatory acts which fall within the 180-day time-frame \Vere identified by Complainants as the following:

•Cedar Hill: September 9, 1999, permit modification approval for the relocation of the Facility's background groundwater monitoring well.

•New Georgia: June 25, 1999, permit modification approval to downgrade the Facility's Subtitle D landfill to a construction/demolition-only landfill.

•Florence: June 25, 1999, permit modification approval for structural changes to the Facility's disposal cells and surface water controls.

61 The Facility's Title V permit also requires it to submit annual emissions estimates for purposes of calculating its armual operating permit fees.

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•Pineview: October 28, 1999, pennit renewal and reissuance.

A. Framework for A1ialyzing Title VI Disparate I1npact Co11iplaints

In assessi11g \vl1ether a recipient's criteria or methods of administration resulted in unlawful discriminatory effects, the Agency relies, in part, on case law developed under Title VI and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. See Elston v. Talladega Cnty. Bd. ofEduc., 997 F.2d 1394, 1407 n.14 (11" Cir. 1993). ("In deciding Title VI disparate impact claims \Ve borrow fi·om standards fonnulated in Title VII disparate impact cases."). This case law sets forth the legal standard for establishing an adverse disparate impact.

The analysis begins with a detennination of \Vhether a prim a facie case of adverse disparate impact can be established. In order to establish aprimafacie showing, the Agency must detennine: (1) \Vhether a causal connection exists between the recipient's facially neutral action or practice and the allegedly adverse disparate impact; (2) whether the alleged impact is "adverse;" and (3) whether the alleged adversity imposes a disparate impact on an individual or group protected under Title VI. If the Agency cannot establish ai1y one of these primafacie eleme11ts, then the Agency must make a finding of no violation, and dismiss the complaint. 40 C.F.R. § 7.120(g); See New York City Envtl. Justice Alliance v. Giuliani, 214 F.3d 65, 69 (2d Cir. 2000) (citing Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir. 1998); New York Urban League, Inc. v. New York, 71F.3d1031, 1036 (2d Cir. 1995).

If a prima facie case of adverse disparate impact is established, the Agency must then detennine if the recipient can provide a "substantial legitimate justification" for the action that caused the adverse disparate impact. Elston, 997 F .2d at 1413. The justification must be necessary to meet "a legitimate, important goal integral to [the recipient's] mission." Id. If the recipient cannot provide such justification, then the Agency \Viii find that the recipient violated EPA' s Part 7 regulations. If the recipient can provide a justification, then the Agency must determine if there was a "less discriminatory alternative" to the recipient's action. Id. ·at 1407. If a less discriminatory alternative did exist, then the Agency \Vill find that the recipient violated EPA's Part 7 regulations. If no less discriminatory alternative existed, then the Agency will make a finding of no violation and dismiss the complaint.

B. Per111it Modifications for Cedar Hill and New Georgia Landfills Do Not Resitlt in Title VI Violatio11s.

Consistent with this legal analysis, EPA determines \vhether a causal connection exists between a recipient's pennit 1nodification approvals and a complainant's alleged adverse disparate impacts by looking to the modification at issue and the modification's effects. While

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pennit modifications can trigger Title VI violations, modifications that do not involve actions related to the alleged impacts identified in the complaint will not fonn the basis for a finding of noncompliance with EPA's Title VI regulations because no causal connection can be established. For these same "causal connection" reasons, modifications that result in significantly decreased emissions of all pollutants concerned or all the pollutants EPA reasonably infers are the potential source of the alleged impact will not result in Title VI violation.

1. Cedar Hill Landfill (St. Clair County)

The 78-acre Cedar Hill Landfill in St. Clair County, Alabama, was originally pennitted by ADEM as a municipal solid waste landfill in 1977. 111e pennitting history reflects t\vo permit re-issuances: 011e in 1995 to make the Facility Subtitle D-compliant, and one in October 2001. In between these re-issuances were a number ofpennit modifications, including one to increase tonage accepted to 600 tons per day, one to add 40 additional acres for a total of78 acres, one for a name change, and several modifications involving the relocation of groundwater monitoring wells. See Investigative Report, Section VIII(l), Paragraphs 43 and 47, above.

The Title VI trigger action noted in the complaint for the Cedar Hill Landfill is the September 9, 1999, permit modification which allowed for the abandonment and relocation of groundwater monitoring well GWA-1. See Investigative Report, Section VIII(J),Paragraph 48, above. Adverse impacts alleged from this action were noise, odor, flies, wild animals, air pollution, traffic, and fear of groundwater contamination. See Letter from Luke Cole, Center on Race, Poverty & the Environment, to Carol Browner, EPA Administrator (December 17, 1999). No other information \Vas provided in the complaint as to the correlation between the permit modification approval and the alleged adverse impacts. Id.

GWA-1 was the Facility's background monitoring well (also referred to as "upgradient"). ADEM regulations require the establishment of a background monitoring well so that background groundwater quality can be detennined at the landfill prior to the initial acceptance of any waste. The Facility is also required to have do'Wllgradient ground\vater monitoring wells that then monitor groundwater quality in specified locations on a semi-annual basis throughout the life of the Facility. See Investigative Report, Section VIII(l), Paragraph 49, above. Abandonment and relocation ofupgradient and downgradient groundwater monitoring wells are "minor" modifications under ADEM regulations which must conform to Alabama's well construction standards. See Investigative Report, Section VIIJ(l), Paragraph 51, above.

The GWA-1 monitoring well \Vas Cedar Hill's only background groundwater monitoring well. Pursuant to ADEM's requirements, it established groundwater quality for the Facility prior to the Facility's acceptance of \vaste in 1977. See Investigative Report, Section VJII(l), Paragraph 49, above. Its relocation, approximately 20 feet to the \vest of its previous spot (along the gravel entrance to the Landfill) was made in order to avoid damage to the well from Landfill traffic and construction activities planned for road improvements. See Investigative Report,

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Section VIII(l), Paragraphs 50 and 51, above. The evidence indicates the abandonment of GWA-1 and the relocation of GWA-lR were done according to ADEM well construction standards. See Investigative Report, Section VIII(l), Paragraph 51, above. In particular, the record reflects that groundwater well GWA-lR was installed properly and at a depth similar to, and in a similar hydrogeoloic regime, as the old well. Id.

There is no evidence indicating that the 20-foot relocation of the GWA-1 background groundwater monitoring well is connected or related to the alleged adverse impacts of odor, flies, wild animals, air pollution, and traffic from the Landfill operation. See Investigative Report, Section VI(B), Paragraphs 4 through 7, above. There is also no evidence to suggest that the abandonment and relocation of this groundwater monitoring well is related to the alleged "fear of ground\vater contamination"or any potential groundwater contamination. See Investigative Report, Section VI(B), Paragraph 2, above. First) the \Yell at issue bad already established background ground\vater quality prior to its relocation. Second, the well was not used to monitor groundwater quality downgradient from the landfill activity and any inappropriate relocation of the well would not be related to identifying any potential gro1mdwater contamination from the landfill. Third, the evidence indicates that, in any event, the well was installed properly and in a similar hydrogeoloic regime as the original well, so that the relocated well was equally capable of producing reliable background groundwater quality for future reference. Because there is no causal connection between t11e relocation of GW A-1 and complainants' alleged adverse impacts, this modification is not an action that forms a basis for a finding of noncompliance with EPA's Title VI regulations. It is recommended that the disparate impact allegation involving Cedar Hill Landfill be dismissed.

2. New Georgia

The New Georgia Landfill is located just outside of Birmingham, Alabama, in an area that supports industrial, residential, mining, and forest uses. The Landfill became permitted as a municipal solid waste landfill by ADEM in 1971, and prior to 1998, consisted of an old closed sanitary (105 acres) landfill and a vertical expansion sanitary landfill (40 acres). See Investigative Report, Section VIII(2), Paragraphs 52 and 53, above. In 1998, the City of Birmingham was given approval by ADEM to convert 30.5 unused Landfill acres to a new Subtitle D-compliant solid \Vaste disposal landfill area. Two months after this approval, the City of Birmingham requested that the Landfill permit be modified to change the 30.5 acre Subtitle D­ approved area to a construction and demolition only area. This permit modification request \Vas approved on June 25, 1999. See Investigative Report, Section VIII(2), Paragraphs 56 through 59, above. No waste, either municipal solid waste or construction/demolition, l1as been accepted at this 30.5 acre area portion of the Landfill. See Investigative Report, Section VIII(2), Paragraph 61, above.

The Title VI trigger action noted in the complaint for the Ne\v Georgia Landfill was the June 25, 1999, conversion of the Subtitle D-complaint municipal solid \Vaste landfill area to a construction/demolition only landfill area. See Investigative Report, Section VIII(2), Paragraph

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57, above. Adverse impacts alleged from this action were noise, odor, flies, wild animals, air pollution, traffic, and fear of groundwater contamination. See Letter from Luke Cole, Center on Race, Poverty & the Environment, to Carol Browner, EPA Administrator (December 17, 1999). No other information was provided in the complaint as to the correlation between the permit modification and the alleged adverse impacts. Id.

The 30.5 acre Subtitle D-compliant landfill area was approved by ADEM in 1998 to accept municipal solid \Vaste, including construction and demolition \Vaste. fu particular, the Landfill was approved to accept "all non-hazardous, no11-infectious petruscible and non­ petn1scible wastes including but not limited to household garbage, industrial waste, construction and demolition debris, tires, appliances, trees, limbs, stumps, dried sludges, paper and similar type materials." Approved "special wastes" were asbestos waste, foundry sand, petroleum contaminated waste, municipal solid waste ash, and medical waste. See Investigative Report, Section VIII(2), Paragraph 58, above. Because the area was approved to accept mm1icipal solid waste, it had to comply with the more stringe11t Subtitle D requirements addressing location, operation, design (liner and leachate collection), groundwater and storm water monitoring, closure and post-closure care, and financial assurance. Id.

As a result of the June 25, 1999, permit modification approval, New Georgia's 30.5 acre site was now one of four construction/demolition landfills in a three-mile radius in the Birmingham area. See Investigative Report, Section VIII(2), Paragraph 52, above. Also as a result of the modification, New Georgia's construction/demolition area could accept only a portion of waste compared to its previously permitted status as a Subtitle D landfill. In particular, the Facility could no longer accept (at this 30.5 acre site) 11ousehold garbage (including organic waste subject to decay), industrial waste, municipal solid waste ash, or medical waste. It was allo\ved to accept wood, sheet rock, roofing, paper, glass, plastic, cardboard, insulation, scrap metal, masonry, and asbestos. See Investigative Report, Section VIII(2), Paragraph 59, above.

Although the Facility never accepted waste at the 30.5 acre site either as a Subtitle D unit or as a construction/demolition unit, the June 25, 1999, permit modification significantly reduced any potential for the iinpacts alleged by complainants. For example, without organic, decaying household garbage, leachate generation (which impacts both groundwater and surface water) is minimized or non-existent. See Investigative Report, Section VI(B), Paragraphs 2 through 7, above. The lack of organic household or industrial \vaste also lin1its odor, air emissions in the form of methane and non-methai1e organic compounds, and animal intruders otherwise known as disease vectors. See Investigative Report, Section VIII(B), Paragraphs 4 and 5, above. In addition, because the Facility could now accept only a portion of the previously approved waste stream (constructio11fdemolition \Vaste only), and because the Facility was not the only construction/demolition landfill in the area, the June 25, 1999, permit modification minimized potential traffic and 11oise from the Facility by reducing traffic to the site. See Investigative Report, Section VI(B), Paragraph 7, and Section VIII(2), Paragraph 52, above.

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These significant reductions in potential impacts are also supported by the fact that reduced regulatory requirements apply to construction/demolition areas (as compared to municipal solid waste landfills). See Investigative Report, Section VIJI(2), Paragraphs 58 and 59, above. In fact, the June 1999 permit modification to re-classify New Georgia's Subtitle D area to a construction/demolition only landfill site \Vas considered by ADEM to be a regulatory downgrade of the Facility. See Investigative Report, Section VIII(2), Paragraph 57, above. EPA also views construction/demolition landfills as requiring less stringent disposal than municipal solid waste landfills. See Investigative Report, Section VI(C), Paragraph 11, footnote 17, above. For example, EPA's more stringent Subtitle D regulations (at Part 258) do not apply to construction/demolitio11 landfills, rather construction/demolition landfills continue to be subject to the general and less stringent requirements of Part 257. Id. Under Part 257, construction and demolition landfills are not required to have liner and leachate collection systems, groundwater monitoring systems, closure and post-closure care procedures, or to provide fmancial assurance and corrective action. Id.

All available evidence indicates that any potential for alleged impacts fro1n New Georgia's 30.5 acre Subtitle D site were significantly reduced as a result of the modification on June 25, 1999. Modifications that result in significantly decreased emissions of all pollutants concerned or all the pollutants EPA reasonably infers are the potential source of the alleged impact will not result in a Title VI violation because such modifications are not causally connected to the alleged impacts. It is therefore recommended that the disparate impact allegation involving New Georgia Landfill be dismissed.

C. No Disproportionate Inzpactfrom ADEM's perniitting actions for Florence and Pineview.

To assess whether alleged adverse impacts from the Florence and Pineview Landfills may have a disproportionate impact on African Americans living around those landfills, EPA conducted an analysis to identify the population potentially affected by each landfill. EPA then compared the percentage of African Americans in that affected population with the percentage of African Americans in the service area of each landfill to determine whether African Americans near the landfills were disproportionately affected by potential impacts. See New York Urban League, Inc. v. State ofNew York, 71 F.3d 1031, 1038 (2d Cir. 1995) (Disparity in Title VI cases may be proved through the use of"appropriate statistical measures."). This analysis revealed no disparity of impact on African Americans living around the Florence and Pineview Landfills. Where no disparity of impact exists, no violation of Title VI occurs. See New Yorlc City Environmental Justice Alliance v. Giitliani, 214 F.3d 65, 70-71 (2d Cir. 2000) (Title VI adverse disparate impact claim rejected where plaintiffs failed to demonstrate disparity).

As discussed more fully below, a one-mile radius proximity analysis, based on 2000 Census Data, was used to identify the affected population for the alleged adverse impacts identified by complainants as being associated with landfill operations. This one-1nile radius proximity analysis revealed that the percentage of African Americans within one mile of the Florence Landfill is 6.8%. The percentage of African Americans \Vithin one mile of the

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Pinevie\V Landfill is 0.2%. These percentages are significantly lower than the percentage of African Americans in the service area of the facilities (19.3% for Florence and 26.4% for Pineview) and in the State (26%), and do not support a fmding of disparity.

One-Mile Radius Proximity Analysis

A one-mile radius proximity analysis \Vas used to identify the potentially affected populations for several reasons. First, the complexity of identifying affected populations for numerous alleged adverse impacts with numerous potential impact areas at four distinct landfills warrants a more holistic and simpler approach, especially where, as here, a combined total of seven different adverse impacts are generally alleged by complainai1ts as affecting African American communities near the four landfills in Alabama (and seven are specifically alleged as impacting the Y erkwood commu11ity from the Pineview Landfill). As the fmdings of fact indicate in Section VI (potential areas of impact) and Section VIII (individual landfill site descriptions), each of these alleged impacts can take different and potentially multiple pathways from landfills to receptor populations at various and different locations beyond a landfill's boundaries. See Investigative Report, Section VI(B), Paragraphs 2 through 7, above. For example, potential groundwater contamination from landfills depends on varied hydrogeologic conditions at each landfill site, with groundwater flowing generally in more than one direction. See Investigative Report, Section VI(B), Paragraph 2, above. At the Cedar I-Iill Landfill, shallo\V groundwater flow follows the surface topography and moves both northeast and southeast, while groundwater flow in the rock aquifer is more complex and can flow northwest, northwest/southeast, and nearly east-west. See Investigative Report, Section VIII(l), Paragraph 44, above. Similarly, at the Pineview Landfill, while groundwater flows primarily southwest over a majority of the site, groundwater flows to the north in a part of the northern portion. See Investigative Report, Section VIII(4), Paragraph 71, above.

Potential surface water contamination can also take multiple routes over landfill sites due to its tendency to follow site topography and can potentially impact various water bodies depending on their location. See Investigative Report, Section VI(B), Paragraph 3, above. At the New Georgia Landfill, which sits on a topographic high, surface drainage flows in all directions, while at the Florence Landfill, surface water flows northeast to Cypress Creek, but then south and into the Tennessee River. See Investigative Report, Section VIII(2), Paragraphs 54 and 64, above. Odor impacts also depend on varying factors such as wind direction, the rate of gas production, operating practices, and local topography and alleged noise and traffic impacts cru1 depend on the location of the roads and the affect that distance has on sound. See Investigative Report, Section VI(B), Paragraphs 6 and 7, above.

To allow for this complexity of potential impact areas and to capture all of the alleged potential impacts around each landfill, a proximity analysis is warranted. Use of the proximity analysis also conforms to the approach used by complainants in data submitted in support of their complaint. In their supplemental information, complainants present their "demographics of communities hosting landfills" by utilizing a proximity radius of 1, 3, ahd 5 miles. See Letter

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from Caroline Farrell, Center on Race, Poverty & the Environment, to Nancy L. Tommelleo, EPA (October 22, 2002).

Second, a separate analysis for each alleged impact reveals that a proximity analysis with a one-mile radius in scope is appropriate and most likely to capture all pote11tial impacts around landfills generally. See Investigative Report, Section VI(B), Paragraphs 2 through 7, above. For example, both EPA and the State of Alabama have associated a one-mile radius with the potential impact area for groundwater contamination. See Investigative Report, Section VI(B), Paragraph 2, above. In its Risk and Resource Damage Analysis for the 1991 Final Subtitle D regulations, EPA assumed no human health risks from containinated groundwater where landfills bad no population or no drinking water wells within a one-mile radius. Id. Similarly, Alabama's Solid Waste Management Plan notes that, with regard to health and safety impacts from ground\vater, distances of one mile in the same aquifer are typically examined. Id. To this end, Alabama regulations require all solid waste permit applicants to perform a water well survey in a one-mile radius around the facility. Id.

Potential areas of impact for landfill gas emissions (including odor), disease vectors, and noise and traffic also appear to generally fall within the one-mile radius. See Investigative Report, Section VI(B), Paragraphs 4 through 7, above. Info1mation on landfill gas emissions shows migration less than a quarter of a mile and one odor complaint from the Pineview Landfill file reflected odors "up to a mile away or more." See Investigative Report, Section VI(B), Paragraphs 4 and 6, above. Concern for disease vectors appears within one-half mile of the landfills, and Federal Highway Administration data suggest a one-mile impact zone from associated with increased traffic may be appropriate (although one Pineview complaint mentions noise "up to two miles away''). See Investigative Report, Section VI(B), Paragraphs 5 and 7, above. Informatio11 on impact zones for potential surface water contamination and traffic were not available. See Investigative Report, Section VI(B), Paragraphs 3 and 7, above. Based on available information, a one-mile radius potential impact area clearly encompasses all potential impacts as alleged by complainants.

Third, analyzing potential landfill impacts using a proximity radius around a particular facility is a method supported by ADEM and recommended to local governments in conjunction with local governing bodies' obligations to analyze siting impacts from municipal solid waste landfills. In See Investigative Report, Section VI(D), Paragraph 32, above. Phase I of the State's Solid Waste Management Plan, ADEM states that with regard to local siting critieria, "[t]he population or number ofl1ouseholds withi11 various distance rings surrounding the site should be evaluated. The total affected population can be adjusted using \veighting factors to give more significance to the pop11lation closer to the site." Id.

Finally, use of the one-mile proximity radius, in particular, best addresses complainants' concern that use of Census Block level data can lead to "bad data" by failing to distinguish the populations living closest to the landfill within the Block level group. See Letter fro1n Caroline Farrell, Center on Race, Poverty & the Environment, to Nancy L. Tommelleo, EPA (October 22,

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2002). The one-mile proximity radius (rather than a 2, 3, or 5 mile radius) limits any such potential "bad data" effect by capturi11g the population closest to the landfill border. This particular radius also addresses complainants concern that African American communities experience the "full impact" of landfill operations and that this "full impact" occurs where homes border directly on the landfill. See Investigative Report, Section VI(B), Paragraph 8, above. Because ho1nes that border directly on the landfill are generally within a one-mile radius of the landfill, the one-mile radius proximity analysis captures this alleged "full impact" zone.62

All of these reasons combine to make the one-mile radius proximity analysis an appropriate mechanism for identifying the potentially affected population around all of the landfills. For the Florence Landfill in particular, a one-mile radius proximity analysis, based on 2000 Census Data, indicates that the affected population within this radius is 6.8% African American (28 out of 414 individuals). For the Pineview Landfill, a one-mile proximity analysis, based on 2000 Census Data, indicates that the affected population within this radius is 0.2% African American (I out of 430 individuals).

Pineview Landfill a11d the Yerk\vood Community

Complainants specifically assert that the affected population for the Pineview Landfill is the 100% African American community in Yerkwood, which is located approximately 1.5 miles south/southwest of the Landfill. See Letter from Luke Cole, Center on Race, Poverty & the Environment, to Carol Browner, EPA Administrator (December 17, 1999). This assertion raises two issues: (1) is a larger proximity radius of affected populations appropriate for the Pineview Landfill; and if so (2) do the impacts alleged as being adverse affect only the Yerkwood community such that disparity of impacts based on the I 00% African American population of the Yerkwood community can be shown.

Larger Proxi1nity radi11s. There is some evidence in ADEM's Pineview permitting file

62 \Vhen measuring this one-mile proximity radius from the front gate of a landfill as EPA has done (as opposed to the landfill's boundary), this still remains true for small landfills such as the Florence Landfill (74 acres) where the Landfill's acreage represents only a small portion of the one mile radius (i.e., 74 acres is l l.6o/o of one square mile) and where both the active portion of the Landfill and the nearest African American conununity is closest to the Facility's entrance. See Investigative Report, Section VIII(3), Paragraph 63, above. For larger landfills such as Pineview (691 acres), measuring the one-mile proximity from the front gate of the landfill may skew demographics for certain populations around the landfill. However, as discussed infra, this potential skewing of demographic data does not impact the instant disparate impact analysis since, for the Pineview Landfill, no disparity of potential impact was found even when the proximity radius was extended to two, three, and four miles from the Facility's entrance.

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to suggest alleged impacts greater than one-mile for the Pineview landfill.63/64 An April 6, 1999 letter from the Citizens Advisory Committee of The Pineview Landfill references nuisance impacts ''for the 1200 residents that live around the Landfill." See Investigative Report, Section Vlll(4), Paragraph 77, abave. Based on 2000 Census Data, this 1200-resident figure would fall somewhere between a one mile (430 persons) and two mile (1,860) radius. See Investigative Report, Section VIII(4), Paragraph 73, above. Similarly, on August 18, 1994, a citizen complaint to ADEM regarding the Pineview Landfill referenced odor "up to a mile away or more" and noise associated with the Landfill ''up to two miles away." See Investigative Report, Section VI(B), Paragraph 6, above. ill additio11, as noted previously, for larger landfills such as Pineview (691 acres), measuring the one-mile proximity from the front gate of the landfill may skew demographics for certain populations around the landfill.

These citizen complaints and tl1is potential skewing suggest that an expanded proximity analysis might be warranted for the Pineview Landfill. Yet, as discussed below, even expanding the proximity analysis for the Pineview Landfill to two, three, and even four miles, fails to support a fmding of disparity when compared to the percentage of African Americans in the service area and in the State.

Yerkwood-01ily i111pacts. Complainants also assert, however, that certain identified and allegedly adverse impacts affect only the "downhill" African American community of Y erk\vood (\vhich complainants contend is 1OOo/o African American). See Letter from Lulce Cole, Center on Race, Poverty & the Environment, to Carol Browner, EPA Administrator (December 17, 1999). Complainants assert the community "above" the Landfill is 100% White and by implication suggest that the White community is not impacted by the Landfill. Id. The specific impacts alleged to be affecting only the Y erkwood community are:

• potential groundwater contamination from the Pineview Sanitary Landfill which "contributes to the psychological impact of the dump - fear that the community's health is being adversely affected by the landfill"and causes residents to not use their wells or have vegetable gardens;

• concern for drinking water because the Burnt Cane Creek runs past the Landfill and into the drinking \Vater for residents;

• concern for safety and "the increase in noise, traffic, accidents, and filth from the trucks" because of a new highway that "is being constructed for trucks that will run

63 No other references to distances of impacts were discovered during the file review for the other three facilities: Cedar Hill, New Georgia, and Florence.

64 \Vhen compared to the Florence Landfill, the Pineview Landfill is approximately six times larger in terms oftons of waste accepted per day. Pineview is also approximately nine times larger than the Florence Landftll in terms of acreage.

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through Yerkwood, called Corridor X,"; and

• concerns over the increase in the number of rodents, birds, and other animals in the area due to the Landfill. Id.

There is no evidence, ho\vever, to suggest that these alleged impacts potentially affect only the Y erkwood community to the exclusion of the other neighborhoods surrounding the Pineview Landfill. See Investigative Report, Section VIII(4), Paragraphs 68 through 77, above. To the contrary, evidence indicates that the alleged impacts, if substantiated, would potentially affect a number of the communities sUirounding the Landfill. Id. For example, while groundwater flows primarily to the southwest over a majority of the Landfill (and thus in the direction of the Yerk\vood community), it flows to the north in a portion of the northern part of the site. See Investigative Report, Section VIII(4), Paragraph 71, above. Thus, downgradient groundwater monitoring wells at the Facility are located not just in the southwestern comer of the site, but at a central northern point (towards the Sellers community), the northwest comer, and the west side (towards the Burnell community). See Investigative Report, Section VIII(4), Paragraphs 71 and 74, above. While a revie\v of groUI1dwater monitoring data from the date of the Title VI complaint (1999) to the present reveals no exceedances of any parameters and thus there is no evidence of groundwater contamination, clearly, the groUI1dwater flow directions at the Facility indicate that the alleged impacts from any off-site groundwater contamination could potentially affect the Sellers and Burnell communities, as well as the Yerkwood community. See Investigative Report, Section VIII(4), Paragraphs 71, 74 and 89, above.

Similarly, any potential contamination of drinking water through surface water contamination of Burnt Cane Creek potentially impacts a community larger than the Y erkwood community. See Investigative Report, Section VIII(4), Paragraphs 70 and 74, above. Indeed, such concerns have been raised by non-Yerk\vood community persons. See Investigative Report, Section VIII(4), Paragraph 77,footnote 49, above. It was the Birmingham Water \Yorks Board which first raised this issue at the pl1blic hearing on the Landfill's Solid Waste Disposal Permit in 1993. In a follow-up letter to ADEM, the Board expressly noted that potential contamination of Burnt Cane Creek would affect the Board's water intake location which, at that time, supplied the entire Birmingham metropolitan area with 22o/o of its water. Id. While a review of storm water monitoring data from the date of the Title VI complaint (1999) to the present reveals no exceedance of any parameters, and while evidence indicates that any surface water contamination to Burnt Cane Creek would not be drawn into the water system in any event, any possible contamination of the \Vat er system from Burnt Cane Creek would impact, according to the Birmingham Water Works Board, not only the Yerkwood community, but the entire Birmingham metropolitan area. See Investigative Report, Section VIII(4), Paragraphs 74, 77 at footnote 49, 89, and 90, above. Nevertheless, as noted above, groundwater monitoring data indicates that there is no evidence of actual groundwater contamination from the landfill.

The "increase in noise, traffic, accidents, and filth from the trucks" because of the

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construction of a ne\V highway also appears to be an alleged impact that, even if substantiated, would potentially affect more tl1an the Yerkwood community residents. See Investigative Report, Section Vlll(4), Paragraphs 68 through 77, above. While evidence indicates that a major highway is currently being constructed that will run east-west to the south of the Landfill entrance, this highway is not yet completed and there no evidence to indicate that it has any connection to the Landfill. See Investigative Report, Section VIII(4), Paragraph 75, above. Even assuming this highway is somehow connected to the Landfill, evidence indicates that it runs tlJJ:ough the Byran community as well as through the Yerkwood community. Id. Thus, impacts from this under-construction highway do not affect only the Yerkwood community residents.

In addition, current truck traffic to and from the Landfill site is confined to Bryan Road from the Landfill entrance 11orth to Highway 78 at Sumiton. Id. As such, current truck traffic does not run by or through the Yerkwood community, and in fact, truck traffic is expressly prohibited along neighborhood roads leading i11to and away fro1n the Yerkwood community. Id. The communities of Bryan and Sellers which directly abut the only road access to the Landfill are the most affected by the current truck traffic from the Landfill. See Investigative Report, Section VIII(4), Paragraphs 74 and 75, above. That current truck traffic impacts are a concern for communities other than the Y erkwood community is further supported by The Citizens Advisory Committee of the Pineview Landfill (made up of representatives from the communities of Bryan, Sellers, Morgan Chapel, and Yerkwood) which raised concerns to ADEM over traffic and safety "on behalf of the 1200 residents that live around the Landfill" in 1999 and again in 2002. See Investigative Report, Section VIII(4), Paragraphs 76 and 77, above. Of the potentially impacted com1nunities in the area, the Yerkwood community appears to be least affected by truck traffic.

Finally, allegations concerning the increase in the number of rodents, birds, and other animals due to the Landfill are allegations, if substantiated, that potentially affect a number of communities surrounding the Landfill, rather than only the Yerkwood community. See Investigative Report, Section VIII(4), Paragraphs 68 through 77, above. Again, support for this conclusion is found in the Advisory Committee's complaints to ADEM in 1999 "on behalf of the 1200 residents that live around the Landfill" concerning birds and rats. See Investigative Report, Section VIII(4), Paragraph 77, above. Proximity to the Landfill also reveals, agai11, that the Sellers and Bryan communities are nearest both to the entrance of the Landfill and to the active cells. See Investigative Report, Section VIII(4), Paragraph 74, above. Proximity of other neighborhoods and sources of complaints to ADEM constitute evidence that alleged impacts, if substantiated, potentially affect more than the Yerkwood community. See Investigative Report, Section VIII(4), Paragraphs 74, 76, and 77, above.

Given that complainants' alleged impacts potentially affect a number of the communities surrounding the Landfill, there is no support for defining the "affected population" around the Pineview Landfill as only the Yerkwood community.

Identification of Appropriate Comparison Population

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The identification of the appropriate comparison population for a disparity analysis is driven by the disparate impact allegations in the complaint. In the instant matter, complainants' disparate impact discri1nination allegations focus on certain activities of a State agency (ADEM), and then compare the alleged impacts of those activities on populations surrounding landfills to the populations within the service area of the landfills. The nature of these allegations results, therefore, in the identification of both the State and the service area as the appropriate comparison populations for a disparity analysis.

State as co1nparison pop11latio1i. First, comparison of the percentage of African American populations around a landfill to the percentage of Africa11 Americans in the State of Alabama is appropriate because complainants assert Title VI violations by ADEM, a State agency. In particular, complainants contend that very specific permit actions by ADEM triggered Title VI violations. See Letter from Luke Cole, Center on Race, Poverty & the Environment, to Carol Browner, EPA Administrator (December 17, 1999),' Letter from Caroline Farrell, Center on Race, Poverty & the Environment, to Nancy L. Tommelleo, EPA (October 22, 2002). Those specific actions were ADEM's June 25, 1999, permit modification approval for the Florence Landfill, June 25, 1999, permit modification approval for the Ne\v Georgia Landfill, September 9, 1999, permit modification approval for the Cedar I-fill Landfill, and October 28, 1999 permit renewal and reissuance for the Pineview Landfill. See Letter from Luke Cole, Center on Race, Poverty & the Environment, to Carol Browner, EPA Administrator (December 17, 1999). These allegations concerning actions by a State agency make the State of Alabama an appropriate comparison population (the percentage of African Americans in the State of Alabama is 26%). See Investigative Report, Section VIL Paragraph 42, above.

For the Pineview Landfill, however, complainants appear to assert that the appropriate comparison population is Walker County (which complainants contend is ''just 7% people of color"). See Letter from Luke Cole, Center on Race, Poverty & the Environment, to Carol Browner, EPA Administrator (December 17, 1999). However, complainants' allegation of discrimination in violation of Title VI is not made against Walker County, but rather against ADEM, a State agency. Id. Because the allegations focus solely on the activities of an agency of the State, comparison of African American populations by County is inappropriate and not connected to the allegatio11s. Nonetheless, even using Walker County's 7% "people of color" as a comparison still does not yield a disparity of potential impacts when compared either with the 3.2o/o African American population within a two-mile radius of the Facility (so as to include the Yerkwood community), or with the 0.2% African American population within a one-mile radius of the Facility. See Investigative Report, Section VIII(4), Paragraph 73, above.

Service area as coniparison pop11latio11. In addition to tl1e State, a second appropriate comparison population is the landfill's "service area" because complainants specifically allege that the disparity exists with regard to this comparison population. For example, complainants allege that ADEM's pennitting actions for the landfills allows landfills which primarily serve White communities to be located in African Ame1ican comml1nities. See Letter from Luke Cole, Center on Race, Poverty & the Environment, to Carol Browner, EPA Administrator (December

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17, 1999); Letter from Caroline Farrell, Center on Race, Poverty & the Environment, to Nancy L. Tommelleo, EPA (October 22, 2002). Specifically, complainants contend that "by granting permits to municipal solid waste landfills in predominantly African American communities, when such landfills have a service area which is predominantly white, ADEM has administered its program in such a way as to discriminate against people based on race, color, and national origin, in violation of Title VI." See Letter from Luke Cole, Center on Race, Poverty & the Environment, to Carol Browner, EPA Administrator (December 17, 1999). Similarly, complainants note in their supplemental material that "the discriminatory impact created and sanctioned by ADEM's actions - where landfills with service areas made up primarily of white Alabama residents are hosted by African American residents - is a clear violation of Title VI as implemented by EPA regulations." See Letter from Caroline Farrell, Center on Race, Poverty & the Environment, to Nancy L. Tommelleo, EPA (October 22, 2002).

Thus, the nature of the disparate impact allegations make the "service area" an appropriate comparison population. This conclusion is also supported by complainants' own demographic data \Vhich co1npares "minority populations" within one, three, and five miles of the facilities to "minority populations within the service area." Id.

Use of 2000 Census Data

Census data from the 2000 Census was used to analyze demographic information for the four landfills which are the subject of Allegation #1. As compared to the use of 1990 Census Data, EPA believes that the 2000 Census data more accurately captures the demographics around these landfills at the time of the filing of the Title VI Complaint (December 1999).

No Disparity for the Florence and Pinevielv Landfills

Florence Landfill. Using 2000 Census Data for the one-mile radius proximity analysis around the Florence Landfill reveal a population that is 6.So/o African American. See Investigative Report, Sections VII and VIJI(J), Paragraphs 42 and 65, above. This 6.8% is significantly lower than the State percentage of African Americans (26%). It is also significantly lower than the percentage of African Americans in the Landfill's service area (the City of Florence), which is 19.3%. See Investigative Report, Section VIII(3), Paragraphs 42 and 65, above. Either comparison population fails to reveal that alleged impacts from the Landfill, even if substantiated, would disparately impact African Americans.

Pi1ieview Landfill. Similarly, 2000 Census Data do not support any disparate impact to African Ainericans for the allegations of adverse impact from the Pineview Landfill. A one-mile radius proximity analysis indicates an African American population of0.2% around the Landfill. See Investigative Report, Sections VII and VIIJ(4), Paragraphs 42 and 73, above. \Vhen compared with the State perce11tage of African Americans (26%) and with the 9-county service area percentage of African Americans (26.4%), no disparity of alleged impacts can be shown. See Investigative Report, Section VII and VIII(4), Paragraphs 42 and 73, above.

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Even when using a two-mile, three-mile, and four-mile proximity analysis of this site, the African Americai1 percentage of the affected population increases only to 3.2%, 7.9%, and 7.1% respectively. See Investigative Report, Section VIII(4), Paragraph 73, above. These percentages continue to be significantly lower than the percentage of African Americans in the State (26%) and in the 9-county service area (26.4%). See Investigative Report, Sections VII and VIII(4), Paragraphs 42 and 73, above.

Thus, for both the Florence Landfill and the Pinevie\v Landfill, it is recomme11ded that no disparity of alleged impacts be found and that the complaint's disparate impact allegations concerning these two landfills be dismissed.

X. TITLE VI ANALYSIS FOR ALLEGATION #2

ALLEGATION#2: ADEM VIOLATED TITLE VI AND EPA'S IMPLEMENTING REGULATIONS BY ENGAGING IN A PATTERN AND PRACTICE OF INTENTIONAL DISCRIMINATION BY CONCENTRATING MUNICIPAL SOLID WASTE LANDFILLS IN PREDOMINANTLY AFRICAN AMERICAN COMMUNITIES IN ALABAMA, \VHEN THE LANDFILLS SERVICE PREDOMINANTLY WHITE COMMUNITIES.

Complainants assert that ADEM violated Title VI and EPA's implementing regulations by "repeatedly permitting municipal solid waste landfills in African American conununities, although the service areas for these landfills are predominantly White." See Letter from Luke Cole, Center on Race, Poverty & the Environment, to Carol Browner, EPA Administrator (December 17, 1999). More specifically, complainants initially contended that ADEM "has issued permits for thirty-one municipal solid waste landfills throughout Alabama .... " and that "all of these landfills are located in predominantly African American communities, but serve predominantly \Vhite conununities." Id. (emphasis added). Through their 2002 supplemental correspondence, however, complainants modify their position by stating that, of the thirty-one landfill permits issued by ADEM, "most of these landfills are located in predominantly African American conununities, but serve predominantly wl1ite communities." See Letter from Caroline Farrell, Center on Race, Poverty & the Environment, to Nancy L. Tommelleo, EPA (October 22, 2002) (emphasis added). 65

In support of this "pattern and practice" pennitting allegation, complainants present partial demographic information for tl1irty-two landfills in Alabama and complete demographic information for twenty-six of those thirty-two landfills (including the four landfills addressed in

65 At the initiation of this Title VI investigation, EPA informed complainants that it was construing Allegation #2 as an allegation of intentional discrimination. See Letterfi·om Nancy L. Tom111elleo, EPA, to Luke Cole, Center on Race, Poverty & the Environnzent (May 23, 2002). Complainants have not objected to this construction of Allegation #2.

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Allegation #1). Id. As in Allegation #1, the data is based on the 1990 Census and analyzes the percentage of "minority" (all non-White) populations in a radius of one mile, three miles, and five miles around eacl1 of the thirty-two landfills and for the service area for twenty-seven of the thirty-two permits Id. Complainants identify no specific ADEM permitting activities that violate Title VI, but instead focus on the location of the landfills being permitted by ADEM.

In response, ADEM denies any discrimi11ation in its permitting process and contends complainants' allegation is based on the "mistaken belief that ADEM is responsible for siting landfills within the state ...." See Investigative Report, Section VI(E), Paragraph 39, above. ADEM asserts that, under Alabama law, ADEM is not responsible for deciding where facilities will be sited and cannot co11sider local social and impacts from siting decisions. ADEM's position is that the Alabama Legislature, through its 1989 amendment to the Alabama Solid Wastes Disposal Act, mandated that the local impact assessment for a landfill (which includes pubic health and safety, and social and economic impacts) be done by local governments (not by ADEM) through the local siting part of the permitting process. In support of this assertion, ADEM cites to the Solid Wastes Disposal Act's provisions which set out the landfill permitting process scheme and requires local governments to consider specific socio-economic factors when generally identifying the location of landfills in their jurisdictions and when considering specific landfill permit applications. Id.

ADEM states that its duty under Alabama la\V is solely to determine "the technical suitability of the site selected." Id. It also notes that, under this split in responsibilities, ADEM "has no authority to require a change in site location once the local governing body has made its siting decision." Id. ADEM contends that all it can do "is deny a permit if the site is environmentally unsuitable for a landfill" and that, as a consequence, "the permit applicant can then solicit local approval for an alternative site, and, after the appropriate notice provisions are met, the local government can act on that application." Id. ADEM concludes that "[o]nly if local government approval on the alternate site is received can ADEM consider the alternate site." Id.

Intentional Discrimination Analysis

Federal case law informs EPA's analysis ofa Title VI complaint. In particular, case law developed under Title VI and under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended (Title VII), has established standards for reviewing a discrimination matter. To make an affirmative finding of intentional discrimination by ADEM, EPA must conclude that for the allegation under consideration, a preponderance of the evidence shows that ADEM intended to treat complai11ants less favorably than similarly situated persons because of their race. Elston v. Talladega County Bd. ofEduc., 997 F.2d 1394, 1406 (11 •Cir. 1993), reh 'g denied, 7 F.3d 242 (I I th Cir. 1993). Evidence of discriminatory intent may be direct or circumstantial and may be found in various sources including statements by decision-makers, the historical background of the events at issue, tl1e sequence of events leading to the decision at issue, a departure from standard procedures, the minutes of meetings, a past history of discriminatory

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conduct, and evidence of a substantial disparate impact on a protected group. See Arlington Heights v. Metropolitan Haus. Redevelopment Corp., 429 U.S. 252 at 266-68 (1977) (evaluation of intentional discrimination claim under the Fourteenth Amendment).

Applying the court standards for assessing circumstantial evidence within the Title VI administrative complaint process, EPA will establish a prima facie case of Title VI discrimination if it finds that (I) complainants are members of a protected class; (2) they are eligible for the benefits of ADEM's solid waste disposal program; (3) they did not receive those benefits; and ( 4) other similarly situated individuals \Vho are not members of their protected class did receive those benefits, or that ADEM otherwise denied complainants' the benefits because of their race. Cf Bass v. Board of Comm 'rs, Orange County, Fla., 256 F.3rd 1095, 1104 (II" Cir. 200 I) (describing elements ofprim a facie case under Title VII). If a prim a facie case exists with regard to the allegation at issue, EPA must then determine if ADEM can articulate a legitimate, nondiscriminatory reason for the cl1allenged action. If so, EPA must determine if there is sufficient evidence to establish that ADEM's stated reason is a pretext for discrimination. See McDonnell Douglas Corp. v. Green, 41 I U.S. 792 (1973) (Title VII case setting forth burden­ shifting analysis for plaintiffs bringing employment discrimination claims). EPA may establish pretext if it frnds that "a discriminatory reason more likely motivated" ADEM's permitting of municipal solid waste landfills in Alabama, or ifit frnds that ADEM's explanation for its permitting activity is "unworthy of credence." See Texas Dep 't of Comm. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

Similar principles may be used to analyze claims that a recipient of federal financial assistance has engaged in a "pattern or practice" of intentional discrimination. Such claims may be proven by a sl1owing of "1nore than the mere occurrence of isolated or 'accidental' or sporatic discriminatory acts." See International Bd. of Teamsters v. United States, 431 U.S. 324, 336 (1977). Tl1e evidence inust establish that a pattern of discrimination based on race, color, or national origin was the recipient's "standard operating procedure, the regular rather than the unusual practice." Id.

1. No direct evidence of intentional discrimination in ADEM's permitting of municipal solid 'vaste landfills in Alabama

Complainants allege that ADEM intentionally discriminated against African Americans in Alabama by repeatedly permitting municipal solid waste landfills in African American communities when those landfills service primarily "White communities. This allegation focuses only on the location oftl1e landfills vis-a-vis ADEM's permitting activity. Complainants make no allegation of discrimination concerning any other aspect of ADEM's landfill permitting process. See Letter from Lulce Cole, Center on Race, Poverty & the Environment, to Carol Browner, EPA Administrator (December 19, 1999).

EPA has found no direct evidence of intentional discrimination in its investigation of ADEM's pennitting process for municipal solid waste landfills in Alabama as it relates to the

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location of landfills. In fact, the direct evidence indicates that ADEM does not choose the location of landfills sites in Alabama and confmes its analysis of pe1mit applications to the technical suitability of sites already chosen by local governments. See Investigative Report, Section VI(E), Paragraph 40, above. In analyzing the technical suitability of a landfill site, ADEM did not (and does not) consider race or any other socio-economic factor relating to the location of landfills. Id. For example, ADEM's Pineview and Cedar Hill permitting files consistently reference ADEM's inability to consider such "non-technical" factors when processing landfill permit applications. Id. These references indicate that ADEM believes it cannot consider socio-economic (or non-technical) location factors at any point in its solid waste disposal permitting process and that local governments are tasked with making these considerations under Alabama's Solid Waste Disposal Act. Id,· Letter from James W. Warr, Director, ADEM, to Ann E. Goode, Director, EPA Office ofCivil Rights (February 4, 2000).

2. No prima facie case for intentional discrimination in ADEM permitting of municipal solid waste landfills in Alabama

As with the lack of direct evidence, no circumstantial evidence has been uncovered during this investigation that would support a prima facie case of intentional discrimination by ADEM in its permitting process as it relates to locations of landfills in Alabama. That is, EPA has found no circumstantial evidence indicating that similarly situated White people in Alabama were treated more favorably by ADEM by not having landfills permitted next to their communities. In particular, EPA has found no evidence indicating a pattern by ADEM of permitting landfills primarily in African American communities or that ADEM permitted most municipal solid waste landfills in African American communities when such landfills serviced primarily White communities.

Complainants' demographic data on location of landfills is not circumstantial evidence of intentional discrimination. While complainants do present demographic data that they contend sho\v tl1at most of Alabama's permitted municipal solid waste landfills are located in predominantly African American communities, but serve predominantly White communities, complainants' data do not constitute circumstantial evidence of intentional discrimination for the following reasons.

First, complainants' data calculate the percentage of "minority'' populations at varying distances around currently permitted landfills. This "minority'' population reference is, as complainants' concede, larger than just the "African American" population and encompasses all non-White individuals. See Record ofCommunication from Nancy L. Tommelleo, EPA, to Caroline P'arrell, Center on Race, Poverty & the Environment (January 24, 2002). Because the "minority" population reference is a broader category than "African American," complainants' data for each landfill is potentially skewed towards a higher number of "minorities" and may not accurately reflect the percentage of African Americans living near the landfills. Since complainants allege intentional discrimination by ADEM solely against African Americans in particular, this potentially skewed data are unreliable for use as circUinstantial evidence.

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Second, complai11ants' data are based on 1990 Census information. While this information was the only available Census data at the time of the complaint filing in 1999, the 2000 Census data now available present more accurate demographic information of the populations living arotmd Alabama's landfills as of December 1999.

EPA 's de11iographic data do not i1idicate a patter1i ofper11zitting whiclz co11centrated landfills i11 priniarily Africa11 Anierica1i co111ni11nities a1td are 1zot circunzstantial evide1ice of intentional discrimi11ation. EPA' s demographic data, based on the 2000 Census, fail to support complainants' assertion that ADEM engaged in a pattern of permitting that concentrated most of the landfills in Alabama near African American cormntmities while serving primarily White commllllities. The data do not reflect any pattern of permitting landfills primarily in African American commtmities, but rather indicate that most municipal solid waste landfills in Alabama are not permitted primarily in African American communities when compared to service area demographics. See Investigative Report, Section VII, Paragraphs 41and42, above.

EPA' s demographic data analyzed the percentage of African Americans living within the relevant one-mile radius for a representative State-wide sample of thirteen landfills. See Investigative Report, Section VIL Paragraph 42, above. In addition to the four landfills which are the subject of Allegation #1 (Cedar Hill, Florence, New Georgia, and Pineview), nine other landfills \Vere chosen as representative samples of the remaining landfills in Alabama. See Investigative Report, Section VII, Paragraph 42, above. These nine additional landfills were chose11 as representative based on type of landfill (mtmicipal solid \Vaste), size (comparable to Pineview Landfill in permitted tons pers of waste per day- 1500 tons), and location (throughout the State). See Investigative Report, Section VIL Paragraph 42,footnote 31, above. Thus, the data presents demographic information on almost half (44.8%) of the twenty-nine mtmicipal solid waste landfills currently permitted in Alabama (a total of 13 of 29). See Investigative Report, Section VIL Paragraphs 41and42, above. In addition to the one-mile proximity data, a demographic proximity analysis was also made covering a two-mile, three-mile, and four-mile radius arotmd each facility. See Investigative Report, Section VIL Paragraph 42, above. Unlike complainants' data, EPA's demographic information is based on the 2000 Census and is specifically analyzed with regard to the African American sector of the population (rather than the broader "minority" category). See Investigative Report, Section VIL Paragraph 42, above.

EPA 's demographic data do not indicate a patter11 of permitting \Vhich concentrated most of the landfills in the State primarily in African American communities. Rather, according to EPA's demographic analysis, less than Va (or 30.?o/o) of the thirteen representative landfills state­ wide had a higher percentage of African American residents within one mile of the landfill than in the corresponding service area. See Investigative Report, Section VII, Paragraph 42,footnote 34, above. This means that at a one-mile proximity radius, over 2/a (69.3%) of the thirteen representative statewide landfills in Alabama were permitted in areas that were not primarily African American when compared to the percentage of African Americans in the corresponding service area. See Investigative Report, Section VIL Paragraph 42, above.

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In addition, there was also no pattern in pennitting found when one-mile demographics around the representative landfills were compared to the percentage of African Americans in the State. This comparison indicated that 38.4% of the representative thirteen state-wide landfills (slightly more than a third of the representative state-wide landfills) bad a higher percentage of African American residents within one mile of the landfill than in the State (and thus, 61.6% of the representative state-wide landfills were pennitted in areas that were not primarily African American when compared to the percentage of African Americans i11 the State. Id.

These data reveal that the clear majority of representative landfills in Alabama are not pennitted in primarily African American communities when compared to the service area and the State. Therefore, these data do not iI1dicate a pattern ofpennitting landfills (or a concentration of landfills) in primarily African American communities while serving primarily White communities.

Even data reflecting demographics for two miles, three miles, and four miles around the landfills do not i11dicate a pattern of pennitting landfills (or a concentration of landfills) in primarily African American communities while serving primarily White communities. See Investigative Report, Sections VII and VIII, Paragraphs 42, 46, 55, 65, and 73, above. For example, as reflected i11 the Chart below, 53.8% of the thirteen landfills had a higher percentage of African American residents within two miles of the landfill than in the corresponding service area while 46.2% did not. See Investigative Report, Section VIL Paragraph 42,footnote 32, above. At tlrree miles, 46.1 % of the thirteen landfills had a higher percentage of African American residents withi11 that range than in the corresponding service area while 53.9% did not. Id. At four miles, 38.4o/o of the thirteen landfills had a higher percentage of African American residents within that range than in the corresponding service area while 61.6% did not. Id.

Miles radius around % of 13 landfills with o/o of 13 landltlls with lower landfill hi2her o/o African o/o of African American American residents around residents around landltll landfill than in service area tl1an in service area

2 miles 53.8% 46.2%

3 miles 46.1% 53.9%

4 miles 38.4% 61.6%

At best, the data at two and three miles sho\v a near even split in the number of landfills with a higher percentage of African American residents within that radius than in the corresponding service area versus the number of landfills with a lower percentage of African American residents within that radius than in the corresponding service area. In other words, about as many landfills are located in areas in \vhich the proportion of African Americans living nearby is less than that in the State overall, as there are landfills located in areas in which African Americans are represented in a greater proportion (i.e., there is no correlation between population

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and landfill location). These percentages, even at two and three miles, do not indicate a pattern of permitting landfills (or a concentration of landfills) in primarily African American communities while serving primarily White communities. Because the data do not indicate a pattern or concentration of landfills in primarily African American communities, they do not constitute circumstantial evidence of intentional discrimination by ADEM in its permitting of municipal solid waste landfills in Alabama.

Any deniograpltic infor1nation supporting complai1ia11ts' assertion is ouhveighed by evide11ce that ADEM does not consider no11-technicalfactors, such as racial 1nakeup oft/re comm11nity, in its per111itti1ig process and does 11ot cltoose the location oflandfills. Assuming, for the sake of argument only, that demographic information did support the assertion that most Alabama landfills are permitted in predominantly African American communities while serving predominantly White communities, such demographic evidence \vould still not support a prima facie case of intentional discrimination by ADEM i11 its permitting of landfills in Alabama. This is because other available evidence outweighs any such demographic evidence when considering whether similarly situated White people in Alabama were treated more favorably by ADEM by not having landfills permitted next to their communities.

First, the lack of any landfill permit application denials by ADEM during the relevant period of time for this investigation (1999 - present), constitutes evidence that ADEM did not treat White communities surrounding potential landfills more favorably than African American communities by rejecting applications for landfills located near any such White communities. See Investigative Report, Section VI(E), Paragraph 39, footnote 28, above. Second, as noted above, evidence from ADEM's permitting files indicates that ADEM did not (and currently does not) consider race or any other socio-economic factor in the processing of any of its landfill permit applications. See Investigative Report, Section Vl(E), Paragraphs 39 and 40. Rather, ADEM's permitting files consistently reference its inability to consider such "non-technical" factors involving the surrounding communities when processing landfill permit applications. See Investigative Report, Section VI(E), Paragraph 40, above. These references confirm that ADEM believes it cannot consider socio-economic (or non-technical) location factors at any point in its solid waste disposal permitting process and that it relies, instead, on local governments to determine the location of landfills. See Investigative Report, Section VI(E), Paragraphs 39 and 40, above. There is no indication in any permit files reviewed by EPA during this investigation that ADEM has acted contrary to these beliefs when permitting landfills in Alabama. See Investigative Report, Section VI(E), Paragraph 40, above. Thus, as implemented, ADEM's permitting process for solid waste landfills simply does not call for ADEM to be involved in initial landfill location decisions and does not provide for the consideration of racial or other non-technical factors when ru1alyzing landfill location suitability.

For the purposes of assessing whether a primafacie case exists with regard to intentional discrimination, ADEM's belief in the limitations imposed upon it regarding consideration of non-technical location issues, its actions on landfill permit applications in accordance with those

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beliefs, and the lack of permit denials, present evidence that clearly outweighs any demographic information that may show landfills were permitted in predominantly African American communities and serving predominantly White communities. This assessment on the \Veight of the evidence is supported by a recent decision from the United States Court of Appeals for the Eleventh Circuit involving allegations of intentional discrimination in permitting relating to the location of landfills where the state agency did 11ot determine the location of landfills and where no other evidence of intentional discrimination in the permitting process existed. See Rozar v. Mullis. 85 F.3rd 556, 564-565 (I I'' Cir. 1996) (Where landfill location selection was made by the county rather than by the state and where the state's pri11cipal responsibility lay in ascertaining the technical suitability of an already chosen site, court granted summary judgment to the state after fmding that it was "unclear to this moment on what factual basis plaintiffs now charge that the state defendants' granting of the permit was racially motivated"). 66

Given the lack of direct or circumstantial evidence of intentional discrimination by ADEM in the permitting of landfills in Alabama, it is recommended that Allegation #2 be dismissed.

XI. RECOMMENDATIONS CONCERNING ALABAMA'S SOLID WASTE DISPOSAL PROGRAM

EPA's investigation of this Title VI complaint (which included review of ADEM permit files for four specific landfills and an analysis of Alabama's Solid Wastes Disposal Act, the State's Solid Waste Management Plan and Subtitle D regulations, and several local solid waste management plans) reveals a significant potential for failure to adequately consider safety or socio-economic impacts at any point in the siting and permitting process for municipal solid waste landfills in Alabama. While no Title VI violations were found at the four landfills which were the subject of Allegation #1 of the instant Title VI complaint (for other reasons as noted in the ffivestigative Report), this potential failure of consideration could lead, in the future, to ADEM-permitted landfills that have an adverse disparate impact on a population protected by EPA 's Part 7 regulations. Because of this possible co11sequence, EPA offers the following four recommendations to ADEM with regard to Alabama's Solid Waste Disposal Program:

• ADEM should require that local governing bodies submit to ADEM, along with their local approval of solid waste landfill permit applications, detailed analyses

66 The Eleventh Circuit did not conduct a detailed analysis of the Georgia Environmental Protection Division's (GA EPD's) statutory or regulatory authority in support of its finding that "the principal responsibility of the state defendants Jay in ascertaining the tecimical suitability of an already chosen site." Rather, it appears to have relied on the siting and permitting activities as they played out factually in the case, together with a reference to Georgia's Comprehensive Solid Waste Management Act prohibiting construction or operation of a solid waste disposal facility without a pennit fro1n GA EPD and requiring county pennit applicants to notify the public of meetings at which siting decisions are to be made. Rozar. 85 F.3d at 559.

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of the six minimum siting factors (as set out in the State's Solid Wastes Disposal Act and ADEM's implementing regulations) that were considered by the local body in connection with the site-specific permit;

•Where a local body's analyses of the six minimum siting factors is not sufficient (as determined by ADEM) or not done, ADEM should undertake its own consideration of these factors during its permitting of a municipal solid waste landfill;

• ADEM should put in place a program to oversee local government implementation of local solid waste management plans; and

• ADEM should implement its own "recommendations" as contained within Phase Il of the State's Solid Waste Management Plan.

As discussed more fully below, EPA believes that ADEM's current statement of the limits of its authority under Alabama's Solid Wastes Disposal Act (the Act) is unnecessarily restrictive and that the Act already provides ADEM \Vith the authority to implement these four recommendations.67 The bases for EPA's recommendations and its position on the scope of ADEM's authority are set out in the discussion \Vhich follows. This discussion highlights (1) the general framework of Alabama's Solid Waste Disposal Program, (2) ADEM's statement of its authority under this Program, (3) the Pineview Landfill example of the possible problems \Vith this interpretation, and (4) EPA's analysis of ADEM's authority under Alabama's Solid Waste Disposal Program.

1. The General Frame,vork of Alabama's Solid Waste Disposal Program

There are three components to Alabama's Solid Waste Disposal Program: the State Solid Wastes Disposal Act, ADEM's regulations \Vhich implement this Act, and ADEM's RCRA Subtitle D regulations. 68

Alabania's Solid Wastes Disposal Act. The Solid Wastes Disposal Act is Alabama's enabling legislation for the State's solid waste program. The broad-based goals of the Act include (1) the development of ru1 integrated system of planning for solid waste management in the State by local governments, regional planning commissions, and ADEM, and (2) the implementation of necessary procedures so that an integrated statewide network of solid waste

67 The Taskforce also believes that there is nothing \vithin ADEM's current regulations to preclude ADEM's implementation ofthese recommendations.

68 ADEM's Solid Waste Program regulations are found at Ala. Ad.min. Coder. 335-13-lthrough 335-13-9. Chapters I - 4 contain ADEM's Subtitle D regulations, Chapter 5 contains ADEM's pennitting requirements, Chapters 6 - 8 contain various other Program requirements (i.e., inspections, variances) and Chapter 9 contains Phase I and Phase II of the State's Solid \Vaste Management Plan.

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management facilities can be planned, developed, and operated. See Code ofAlabama§§ 22- 27-42(1)-(2) and 22-27-2(15).

To effectuate these goals, the Act gives ADEM regulatory control over the management of solid waste in Alabama "as may be necessary to enforce the requirements of the department [ADEM] ... [and] as maybe needed to meet the requirements of this article." See Code of Alabama§ 22-27-7. In keeping with this management control, the Act instructs the Director of ADEM to develop a State Solid Waste Management Plan that takes into account "all aspects of local, regional, and state planning, zoning, population estimates, and economics." See Code of Alabama§ 22-27-45(3) (emphasis added). This State Plan is to be developed in two Phases, with the first Phase focused on the development of criteria to be used by local governments in formulating Local Solid Waste Management Plans, and the second Phase reflecting the Final Master State Plan (and incorporating all of the local plans and making recommendations for improvements). See Code ofAlabama§§ 22-27-45(3) and 22-27-45(4)(b).

Pliase I. The Act sets out certain minimum requirements that ADEM must include in the State Solid Waste Management Plan. For example, in Phase I, ADEM must set out siting factors to be used by local governments for the identification of potential locations for solid waste management facilities in their jurisdiction or region. See Code ofAlabama§ 22-27-45(4)(a)(5). The Act specifically directs ADEM to include in these siting factors, six "minimum" criteria including:

• "the costs and availability of public services, facilities, and improvements which would be required to support a facility in this location and protect public health, safety and the environment;"

• "the potential impact a facility in any potential location would have on public health and safety, and the potential that such locations can be utilized in a manner so as to minimize the impact on public health and safety;" and

• "the social and economic impacts that any proposed location would have on the affected community, including changes in property values and social or community perception." See Code ofAlabama§ 22-27-45(4)(a)(5)(iv)-(vi).

The Act states that local plans are also to contain thirteen otl1er minimum elements including providing "for the development or expansion of solid waste management systems in a manner that is consiste11t with the needs of the area, taking into account planning, zoning, population and development estimates, and economics of the jurisdiction and the protection of air, water, land, and other natural resources." See Code ofAlabama§ 22-27-47(b)(8). It also requires that local plans "include such other information as the department may require by regulations." See Code ofAlabama§ 22-27-47(b}(13).

The Act also gives enabling authority to local governing bodies "to assure the proper

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management of solid wastes generated within its jurisdiction i11 accord with its Solid Waste Management Plan," and further provides local governing bodies with authority to approve or disapprove disposal sites in its jurisdiction, with the caveat that:

such approval or disapproval of services or activities described i11 the local plan shall be in addition to any other approvals required from other regulatory authorities and shall be made prior to any other approvals necessary for the provision of such services, the development of a proposed facility or the modification of permits for existing facilities.

See Code ofAlabama§§ 22-27-48(a); 22-27-48(a) (emphasis added); see also ADEM State Solid Waste Disposal Plan -Phase I at 8-1 ("the local governing body's approval is iii additio11 to and prior to any other required approvals. '') (emphasis added). In keeping \vith this provision requiring prior local approval, the Act prohibits ADEM from considering an application for a new or modified permit for a facility "unless such application has received approval by the affected unit of local government having an approved plan." See Code ofAlabama§ 22-27- 48(a). Under the Act, local plans were to be submitted to ADEM for approval by the end of 1990. See Code ofAlabama§ 22-27-47(a).

Pliase II. The Act also requires that the second phase of the State Solid Waste Management Plan "incorporate the local plans and develop a final master plan for solid waste management in the state." See Code ofAlabama§ 22-27-45(4)(b). It specifies eight minimum requirements for this second phase, including that it "make such other determinations and recommendations as the director shall deem necessary or appropriate in keeping with the fmdings and purposes of the Legislature ...." See Code ofAlabama§ 22-27-45(4)(b)(8). The Act allows for periodic amendments and revisions to the State Plan including revisions to evaluate "the development and implementation of local solid waste management programs ...." and revisions to make recommendations to the Governor and the Legislature "to improve the management and recycling of solid waste in this state." See Code ofAlabama§ 22-27- 45(4)(c)(3) and (c)(l). Finally, the Act provides that Phase I and Phase II of the State Plan be adopted by ADEM as final regulations. See Code ofAlabama§ 22-27-45(4)(d).

ADEM's State Plan Regulations. Under this enabling authority, ADEM developed both Phase I and II of the State Solid Waste Manageme11t Plan and adopted each Phase into its regulations at ADEM Regulations§§ 335-13-9-.01 and .02. Chapter 8 of the Phase I State Plan discusses solid \Vaste facility siting criteria. It notes that state and federal regulations tend to provide "technical" location standards while the local governing bodies consider mostly socio­ economic issues (although some socio~economic issues contain technical location considerations). See Phase I ofADEM Solid Waste Disposal Plan at 8-1 through 8-3. The Plan discusses the six mi11imum criteria specified in the Act that local governing bodies must consider and further notes that "any site selected will have some socioeconomic effect on some portion of the populations, and the site with the least impact should be considered the most viable." Id. at 8-3. In discussing the local siting criteria, Phase I of the State Plan notes, ainong other considerations, that:

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• "The population or number of households within various distance rings surrounding the site should be evaluated. The total affected population can be adjusted using weighting factors to give more significance to the population closer to the site. For landfills and WTE facilities, predominant wind directions and the likelihood and significance of various potential impacts should also be considered relative to population distribution, The maximum distance to be considered as having a potential impact is at the discretion of the local government and will differ by facility and locale. Specific comparisons can be developed that give priority to sites that have the lowest effect on the local government's population." Id. at 8-5.

•"The number of residential households along local access routes to the site should be determined. Depending on setbacks and existing truck traffic on various highways, some households may not be counted as subject to an additional impact. Sites that impact large numbers of households along access roads should be given a low priority." Id.

• "Level of service/accident rating of principal access route to the site should be considered. Even though the site may be accessible by way of major highways, either traffic or safety conditions may make the site less desirable." Id. at 8-6.

•For health and safety impacts, the Phase I State Plan notes that "the primary safeguards against health and safety impacts specific to MSW [mm1icipal solid waste] landfills are through ADEM and EPA regulations .... From the local viewpoint, health and safety impacts are mitigated by siting in locations that are less susceptible to the impact because of the natural attributes of the site and adequate setback distances from potential points of impact." Id. at 8-7. For example, criterion involving distance/groundwater time of travel to public water supply wells (noting "distances on the order of one mile in the same aquifer as the facility are typically examined"). Id.

• Phase I notes "air quality status" as a criterion to consider i11 siting facilities. In non­ attainment areas, emissions above a de minimis level would require an offset. Emissions in a prevention of significant deterioration (PSD) attainment area would require best available control technology (BACT). It also notes that there are regulations addressing volatile organic compound (VOC) emissions from landfills. Id. at 8-8.

Phase I of the State Plan also discusses the state and federal siting (technical) standards which are "superimposed upon and independent of the requirements of localities." Id. at 8-9. It notes that RCRA Subtitle D places locational restrictions on landfills regarding:

• proximity to airport runways; • floodplains; •wetlands; • fault areas; • seismic impact zones; and

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• UI1stable areas

Id. at 8-10. There are also regulatory criteria involving threatened or endangered species, point or non-point source water discharges, coastal area elevations, depth of water tables, and archaeologically or historically sensitive areas. Id. at 8-9 and 8-10. Phase I also states that "for the most part, neither ADEM nor Federal regulations address the local socioeconomic perspective on solid waste facility site suitability, since land use planning has traditionally been a role of local government." Id. at 8-10. Phase I contains no express prohibition against ADEM's consideration of siting (or non-technical) factors. See Phase I ofADEM Solid Waste Disposal Plan.

In response to Phase I, a total of 80 local solid waste disposal plans were submitted to ADEM for review on November 18, 1990. ADEM evaluated each plan and made a determination of whether the plan met the requirements of the State's Phase I Solid Waste Plan. See Phase II ofState Solid Waste Disposal Plan at p.5.

The second phase of the State Plan was effective in 1991 and incorporated the approved local plans in the development of a master plai1 for the management of solid waste. Id. at p. 7: ADEM stated that the t\.Vo primary objectives of Phase II of the State Plan were to (1) revise databases to incorporate information from the local plans; and (2) to analyze "local plan information to assess the overall condition of solid waste management in the State and to make recommendations on what steps should be implemented to improve solid waste management. Id. Tl1e key element to Phase II "are the recommendations for improvements in the State's solid waste management system" made in the form of"legislative recommendations that cover all aspects of solid waste management." Id. at p.8.

ADEM's recommendations, among other things, are to add the following to its Powers and Duties:

• ADEM cai1 deny a permit or refuse to issue a permit where (1) the local agency fails to submit annual reports on the implementation of the local plan; or (2) in order to force compliance with a local plan. See Phase II ofthe State Solid Waste Disposal Plan at pps. 128-129;69

• that local solid waste advisory committees be formed to develop and review plans and policies relating to solid waste management. These advisory committees are to be made up of community leaders, educators, industry

69 Current ADEM regulations provide for denial of a permit application where (1) the Director of ADEM determines that there is "substantial non-compliance with Department regulations or pennits at any facility owned or operated by the applicant;" (2) the Director detennines that a permit could not be issued that would result in compliance with applicable solid waste standards; or (3) the applicant could not comply \vith the pennit as issued. See Ala. Adn1in. Coder. 335-13-5-.02(5)(a) and (b).

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representatives, environmental organization representatives, and the media. Id. at p.130; and

• that a local Conflict Resolution Program be established to resolve disputes over issues such as "traffic, buffers, land value, hours of operation .... "Id. at p. 158. "Any such agreement may then be added as conditions to the permit issued by the Department." Id.

There is no indication that any of these recommendations have been implemented to date.

Alabanta 's Subtitle D Reg11lations. The third co1nponent to Alabama's solid waste disposal program are ADEM's Subtitle D RCRA regulations. The State's Subtitle D program (except for the financial assurance provision) was approved by EPA in 1994 and incorporated the mi11imum federal Subtitle D requirements for solid \Vaste landfills noted previously (location, operation, design, ground water monitoring and corrective action, and closure and post-closure care requirements). See Ala. Admin. Coder. 335-13-4-.01 through 335-13-4-.29.

2. ADEM's Statement of its Authority under Alabama's Solid Waste Disposal Program

Socio-econo11iic siti1ig factors. ADEM states that the Alabama Solid Wastes Disposal Act mandates that siting and local impact assessments for a landfill (which include public health, safety, and social and economic impacts such as noise, traffic, and decreased home values) be done exclusively by the local government. See Letter from James W. Warr, Director, ADEM, to Ann E. Goode, EPA Director, Office of Civil Rights (Februa1y 4, 2000); Letter from James W. Warr, Director, ADEM, to Karen Higgenbotham, Acting Director, EPA Office of Civil Rights (January 15, 2002) (reiterating the contents ofits February 4, 2000 correspondence to Ann E. Goode). According to ADEM, the Act creates a bifurcated process under which its duty is solely to determine "the technical suitability of the site selected," and that it "has no authority to require a change in site location once the local governing body has made its siting decision." See Letter fron1 James W Warr, Director, ADEM, to Ann E. Goode, EPA Director, Office a/Civil Rights (February 4, 2000); Letter from James W. Warr, Director, ADEM, to Karen Higgenbotham, Acting Director, EPA Office a/Civil Rights (January 15, 2002). ADEM contends that all it can do "is deny a permit ifthe site is environmentally unsuitable for a landfill" and that, as a consequence, "the permit applicant can then solicit local approval for an alternative site, and, after the appropriate notice provisions are met, the local government can act on that application." See Letter from James fV. fVarr, Director, ADEM, to Ann E. Goode, EPA Director, Office of Civil Rights (February 4, 2000); Letter from James W Warr, Director, ADEM, to Karen Higgenbotham, Acting Director, EPA Office a/Civil Rights (January 15, 2002). ADEM concludes that"[o ]nly if local government approval on the alternate site is received can ADEM consider the alternate site." See Letter from James fV. Warr, Director, ADEM, to Ann E. Goode, EPA Director, Office of Civil Rights (February 4, 2000); Letter from James W. Warr, Director, ADEM, to Karen Higgenbotham, Acting Director, EPA Office of Civil Rights (Janua1y 15,

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2002).

In support of its position on the scope of its authority under the Act, ADEM cites to Section 22-27-47(b)(l 1) of the Act which sets out the minimum requirements of local solid waste management plans and lists the mandatory factors that local governing bodies must consider in identifying locations of landfills. See Letter fron1 James W. JVarr, Director, ADEM, to Ann E. Goode, EPA Director, Office of Civil Rights (February 4, 2000); Letter from James W. Warr, Director, ADEM, to Karen Higgenbotham, Acting Director, EPA Office of Civil Rights (January 15, 2002). ADEM also cites to Section 22-27-48(a) of the Act which gives enabling authority to local governing bodies "to assure the proper management of solid wastes generated within its jurisdiction in accord with its Solid Waste Management Plan," and further provides local governing bodies with authority to approve or disapprove disposal sites in its jurisdiction. Section 22-27-48(a) also reiterates the six minimum siti11g criteria that "the governing body shall consider ...." in determining whether to recommend approval of a new solid waste management site or modification of an existing one. See Letter from James W Warr, Director, ADEM, to Ann E. Goode, EPA Director, Office of Civil Rights (February 4, 2000); Letter from James W. Warr, Director, ADEM, to Karen Higgenbotha1n, Acting Director, EPA Office of Civil Rights (January 15, 2002).

On October 3, 2002, EPA requested that ADEM provide any other legal support for its position that it is precluded from considering anything but the technical suitability of a landfill site under Alabama's Solid Wastes Disposal Act. See Electronic mail from Nancy L. Tommelleo, EPA, to Larry Bryant, ADEM (October 3, 2002). In response to the question of '\vhat additional legal authority sets out ADEM's duties and responsibilities as to siting of solid waste facilities in Alabama," ADEM's General Counsel's Office referred to two Alabama cases and one Eleventh Circuit case as "supporting the reasoning set out in ADEM's letters referenced above." See Memorandum from S. Shawn Sibley, Associate General Counsel, to Gerald Hardy, ADEM (October 21, 2002).

These cases, Ex parte Lauderdale County, 565 So.2d 623 (Ala. 1990); Fitzgerald v. City afHuntsville, 597 So.2d 1378 (Ala. Civ. App. 1992); and Rozar v. Mullis, 85 F.3d 556 (11" Cir. 1996), do not, however, support ADEM's assertion of its limitations under the Act and the General Counsel's memorandum cites to no language in these cases that explicitly or implicitly limits ADEM's authority in the siting and permitting of solid waste landfills. Rather, both Alabama cases deal with the issue of local government authority, not ADEM's authority. For example, in f!x parte Lauderdale Count}', the Alabama Supreme Court addressed the constitutionality of Alabama's Solid Wastes Disposal Act as it applied to local governments ai1d, in upholding the co11stitutionality of the Act, noted that the process for establishing solid waste disposal sites begins with the county or local government and that, under the Act, an entity "must first have the approval of the local government, and then the approval of both the health department and ADEM.

Similarly, the Court of Civil Appeals in Fitzgerald v. City ofHuntsville, 597 So.2d 1378

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(Ala. Civ. App. 1992) addressed the issue of whether the City's siting of a landfill was arbitrary and capricious and reiterated the same provisions of the Act as relied on by the Ex parte Lauderdale Cottnty Court. Neither decision recognizes any limitations on ADEM's authority. In fact, the Ex parte Lauderdale County Court, 565 So.2d at 622, stated that, under the Act, "ADEM is required to exercise regulatory control over the disposal of solid waste," and the Fiztjarrald court, 597 So.2d at 1380, emphasized that local approval "is in addition to any other approvals required ...." The Eleventh Circuit Rozar case does not involve Alabama or Alabama's Solid Wastes Disposal Act.

Oversiglit oflocal plans. In addition, and despite pe1mit file correspondence that suggests otl1erwise, ADEM also indicates that it does not oversee implementation or enforcement of local plans because the Act "does not grant ADEM authority to enforce against a local government for failure to enforce or comply with their own plan." See Electronic mail fro1n Larry Byrant, ADEM, to Nancy L. Tommelleo, EPA (April 21, 2003); but see Letter from Leigh Pegues, ADEM, to the Honorable John Ed Roberts (February 19, 1991) (In approving Walker County's Local Plan, ADEM indicates that it would be monitoring Wallcer County's solid waste program to "ensure it is being implemented in accordance with the approved plan and schedule.'). No statutory citation or other legal authority \Vas offered by ADEM in support of this position on oversight.

3. Potential for Failure to Adequately Consider Socio-Economic or Safety Impacts

Pursuant to its view of its authority under the Alabama Solid Wastes Disposal Act, ADEM neither oversees the local government's required impact analysis for siting (as set out in approved local plans) nor engages in any additional analysis of local safety and socio-economic impacts associated with the siting of a municipal solid waste landfill in Alabama. Rather, ADEM focuses 011 ensuring that local approval has been obtained prior to the processing of a permit application, and to that end, requires only that a statement of local approval be submitted with the application. Potential problems with this interpretation are highlighted by the history of the Pineview Landfill in Walker County.

Walker Co11nty's Local Solid Waste Managen1ent Pla11. In accordance with the Alabama Solid Wastes Disposal Act, Walker County developed its Local Solid Waste Management Plan (Local Plan). The Local Plan noted that, as of 1990, the County was facing "a solid waste emergency'' due to the fact that the County's only sanitary landfill (the Argo Sanitary Landfill) was rapidly nearing capacity (less than one year of remaining capacity as of 1990 and not Sl1btitle-D compliant).70 Id. at 3. At the time (1990), Walker County was generating approximately 58,000 to11s of solid waste annually (22% of which \vas being illegally dumped by

70 The City of Jasper also operated a sanitary landfill (2 miles west of Jasper) exclusively for City of Jasper residents. This landfill was not Subtitle D-compliant and closed upon the opening the County's new Pineview Landfill in 1993.

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County residents at over 1,000 illegal dump sites in Walker County). 71 Id. at 19.

Following an analysis of waste collection, waste generation, recycling efforts, and waste disposal cost for the County, and after consultation with three large private waste disposal companies, the Local Plan states that the County entered into an agreement with BFI to build a Subtitle D-compliant sanitary landfill that would accommodate the County's needs for the next thirty years. Id. at 4. Under the agreement, the County would receive 30 years of guaranteed disposal space at the facility with the first 20 years at no charge for waste generated in-county. Id. at 25.

A Public tlearing on the draft version of the Local Plan was had on Nove1nber 1, 1990. According to initial statements made by County representatives at this public hearing, the County's process for selecting the site for a new landfill included:

• excluding land in Walker County that could not accommodate a landfill such as:

• a natio11al forest or wildlife management area; • large lakes such as Lewis Smith Lake including the Lake's drainage area of 21,000 acres; • all flood plain areas; •all areas that have underground coal mines (SEGCO which covers 13 sections, Mary Lee I, Mary Lee 2, Gorgas Number 7, Maxine; Old Praco) - Walker County is a heavily underground mined area; • all areas with geological faults or that have possible subsidence; and • areas within 10,000 feet of any airports.

• identifying large parcels of land (600-700 acre blocks) that owners are \Villing to sell within the remaining available land in the County; and

• identifying transportation/access road availability.

Id. at Public Hearing Transcript on County Plan, pps. 7-10.

No mention was made of any consideration of public health and safety issues or of socio­ economic concerns for potential sites. In addition, further statements in the public hearing record indicate that BFI (and not the County Commissioners or the Walker County Solid Waste Authority) made the actual site selection for the new landfill. Id. at Public Hearing Transcript on County Plan, pps. 23; 33 (John Ed Roberts - County "I'm going to let BF! answer that. They're the one's that selected this site [referring to Pineview}." p. 23) (Joe Matthews - County

71 In 1990, the \Valker County Solid Waste Department serviced rural areas of\Valker County and charged residents $6.50/month for garbage collection services. See Walker County Solid Waste Managenzent Plan, prepared by PERC Engineering Co., Ind. (Nove111ber 15, 1990) at p.12.

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" ... once we made a decision to go with BF! . .. the site selection process was no longer ours, it was BFI's site selection process. They had to select a site that was suitable/or their needs as well as for Walker Countys'." p. 30) (Rick Losa.:. BF! "It's our first choice [referring to Pineview]. The contract provides that we will go through with this site ttnless the State rejects it. If the State does reject it for an environmental reason, then we will select an agreeably mutual site between the authority and the commission." p. 33),· see also Letter from to unaddressed (Noven1ber 7, 1990) (Attachment "D" to Public Hearing Transcript on County Plan) ("BF! has made the decision that the [Pineview] site is optimum/or their facility. The Walker County Commission did not select this (or any other) site." "Since the Walker County Commission has had no involvement in the site selection, there have been no meetings public or othe!Wise. Again, the site selection has bee11 solely up to BFL ').

In choosing the Pineview site, BFI stated that their primary concern was to "pick the best environmentally safe site," and "one of the reasons why we \Vere attracted to this [Pineview] particular piece of property was because it was owned by Drummond Coal and they had a complete history of the property." Id. at Public Hearing Transcript on County Plan. In addition to the Pinevie\v site, BPI had identified "possibly three more sites in the county for the county to look at" should alternative sites be necessary. Id. at Public Hearing Transcript on County Plan, p. IO. Ho\vever, during the public hearing on the County's Plan, neither the County Commissioners nor BPI would identify (upon repeated requests by hearing participants) the location of the other possible sites. Id. at Public Hearing Transcript on County Plan, pps. 30-31.

In response to citizen concerns over whether environmental impact studies had been made of all available sites, whether comparative studies including economic impacts had been made, and whether traffic safety surveys were conducted regarding traffic flow in the Bryan area, the Walker County Commission stated that such concerns \vere premature at this stage (public hearing on the County Plan) and were appropriately raised "during the permitting process, which bas not even started yet." Id. at Public Hearing Transcript on County Plan, p. 47; Letter fron1 to unaddressed (November 7, 1990) (Attachment "D" to Public Hearing Transcript on County Plan). 72 The Chairman of the Walker County Commission further noted that if tl1ese types of concerns indicated that the area is not suited for a landfill, "then the permit will not be issued by the State." Id. at Public Hearing Transcript on County Plan, p. 51 (emphasis added). When asked about a potential decli11e in property values, the Chairman indicated that he "didn't kno\v anything about real estate values" and further i11dicated that perhaps BFI had some information from other areas. Id. at 55.

72 Approximately 600 form letters were sent in by residents following the public hearing on the County's Plan on November 1, 1990. All citizen comments and concerns involved the site selection of the facility- the Pineview site. In response to these form letters, attorneys for the County Commission noted that an environmental impact study would be done during the permitting process stage. See Letter fro111- to unaddressed (November 9, J990){Attachn1ent "D" to County Plan). The response to comments did not indicate any comparison studies would be conducted regarding traffic, economics, or other residential concerns, but rather simply indicated that ''BFI has made the decision that the Bryan site is optimum for their facility. The Walker County Commission did not select this {or any other) site." Id.

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Follo\ving the public hearing, Walker County submitted its Local Solid Waste Management Plan to ADEM for approval. ADEM initially disapproved the Local Plan because it did not include (1) the guidelines to be considered by the County Commission for the approval/disapproval of solid waste management facilities (i.e., the six minimum siting factors set out in the Solid Waste Disposal Act), and (2) an implementation schedule for each component of the Local Plan. See Letter from Leigh Pegues, ADEM, to the Honorable John Ed Roberts (December 10, 1990).

In response, Walker County submitted two Addendums to its Local Plan purporting to address these deficiencies. See Letter from Rex A. Wingo, P.E., to Mr. Jack Honeycutt, ADEM (December 19, 1990). Addendum No. 1 indicated that certain guidelines, including the six minimum siting factors, had been considered and utilized in developing the Local Plan (and that proposed facilities "have been or will be reviewed according to the criteria."). Id. Based on this correspondence, ADEM approved Walker County's Local Plan on February 19, 1991. See Letter ji-om Leigh Pegues, ADEM, to the Honorable John Ed Roberts (February 19, 1991). In its approval letter, ADEM indicated that it would be monitoring Walker County's solid waste program to "ensure it is being implemented in accordance with the approved plan and schedule." Id.

Pineview Per1nitting Process. The Walker County Commission held its "permitting" public hearing on the proposal to site the new Pineview Landfill in 1991. The Commission approved the siting on August 19, 1991.73 See ADEM's Solid Waste Permit Public Hearing Transcript at 12. A statement of consistency was received by the Birmingham Regional Commission on September 20, 1991 (indicating only tl1at the Landfill was consistent with regional needs). Id.

In September 1991, BFI submitted its permit application to ADEM for the Pineview Landfill. The application, which addressed technical requirements for the site, was accompanied by the local approval certification (consisting only of a signed statement by the Walker County Commissioners indicating that the siting had been approved and that the six siting criteria had been considered) ai1d the statement of regional consistency. No documents from the CoUI1ty's "permitting" 11earing or transcript from the County Co1nmissioners' permit approval meeting were included with the permit application and none were found by the Taskforce in its file review of the ADEM permitting file for Pineview.

73 As a result ofa decision by the Alabama Supreme Court in Ralph Beavers, et al. v. Countv of Walker. Alabama, et al., Case No. 1921871 (Ala. Sup. Ct. June 24, 1994), the 1991 local approval of the Pineview Landfill site was voided because the Court found the original contract between BFI and the County Commission to be an exclusive franchise. On Septe1nber 19, 1994, the Walker County Commission granted BFI a new local approval for the Pineview Landfill. On October 26, 1994, BFI requested that ADEM modify its pennit to reflect this new local approval date. See Letter from Rick Losa, BFl to Sue Robertson, ADEM (Octboer 26, 1994). This modification was granted by ADEM on November 4, 1994. See Letter fro111 Sue Robertson, ADEM. to Mr. Rick Losa (Nove1nber 4, 1994).

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Following its review of the permit application, ADEM held a public hearing on the "techniCal aspects" of the permit on January 14, 1993. According to ADEM's solid waste permit public hearing transcript, there continued to be vocal local opposition to the Pineview Landfill and a number of lawsuits were filed by the communities surrounding the Landfill against both BFI and the Walker County Commission. The permit \Vas approved by ADEM on March 12, 1993.

Pineview Problems. The history of the siting and permitting of the Pineview Landfill reveals several proble1ns. First, the public hearing transcript for Walker County's Local Plan clearly indicates that the County did not consider any safety or socio-economic factors in the identification of possible landfill locations in the County (e.g., Pineview Landfill), but rather relied exclusively on BFI to make landfill site selections based on other factors (such as the availability of a full histo1y of the site). It also indicates that County officials were, at best, confused about who should undertake safety and socio-economic considerations at the permitting phase (e.g., CoUI1ty official referencing potential consideration of such factors by the State).

This failure of consideration runs directly contrary to the requirements of Alabama's Solid Wastes Disposal Act and to ADEM's Phase I State Plan requirements. Although ADEM initially disapproved Walker County's subsequently submitted Local Plan because it did not articulate a process for considering the six mini1num siting factors, ADEM apparently accepted as adequate the County's responsive statements that such consideration "were or would be made." However, as noted above, the pubic hearing transcript on the Local Plan clearly indicates that such considerations were not made for the Pineview Landfill site when it was included by the County in the County's Local Plan. In addition, because ADEM did not (and does not) require local governments to docUinent the extent of their consideration of the six minimum siting factors at the local site-specific permit approval stage, it is unknown whether such considerations were made and whether they were adequately made. Compounding this unknown is the fact that at the State permitting phase for Pineview, ADEM did not consider any safety (including traffic) or socio-economic (including noise) impact factors because of its view that its review is confrned to RCRA Subtitle D "technical" considerations for a facility once that facility is sited by the local governing body.

4. EPA's Analysis of ADEM's Authority Under the Alabama Solid \Vaste Disposal Program

EPA finds nothing in Alabama's Solid Wastes Disposal Act, or ADEM's implementing regulations that prohibits or limits ADEM's authority not only to substantively oversee local governing bodies' consideration safety and socio-economic impacts from landfill siting, but to undertalce additional, i1idependent analyses of such impacts during the State permitting phase for a facility if necessary. Rather, Alabama's Solid Wastes Disposal Act, \Vhose "terms and obligations ... shall be liberally construed to achieve remedies intended," gives ADEM broad authority to manage and regulate all aspects of solid waste disposal in Alabama. See Code of Alabama§ 22-27-41.

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Oversight A11tliority. The Act directs ADEM, in developing the State Solid Waste Management Plan to ensure that "all aspects of local, regional, and state planning, zoning, population estimates, and economics are taken into consideration." See Code ofAlabania § 22- 27-45(3) (emphasis added). It also grants ADEM, in Section 22-27-7, broad authority to "adopt such rules and regulations as may be needed to meet the requirements of this article," and specifically directs ADEM to "exercise such regulatory control over the management of solid wastes as may be necessary to enforce the requirements of the department [ADEM] ...."

Local government authority under the Act is notably second or subordinate (not equal as a bifurcated system might suggest) to ADEM's authority. For example, Section 22-27-3(a) of the Act requires that local governing bodies' establishment of disposal facilities for solid waste be done "in a manner acceptable to the department [ADEM]." Further, the Act specifies tl1at "in addition to any other approvals which are necessary for any contract between private or corporate agencies and governmental entities for the disposal of solid wastes, approval of the department [ADEM] shall be obtained." See Code ofAlabama§ 22-27-5(b). In addition, any agreements or contracts entered into by local governing bodies for solid waste disposal can be canceled by a health officer ''with the concurrence of the department [ADEM], anytime said contracts or agreements fail to be in the best interest of the health, safety, and welfare of the citizens residing in the affected area." See Code ofAlabania § 22-27-5(a). Similarly, under the Act, local plai1s must contain "such other information as the department [ADEM] may require by regulations." See Code afAlabama§ 22-27-47(b}(l 3). The Act further requires that ADEM approve all local plans and specifies that if a local plan is not submitted or the plan does not meet the minimum requirements of the Act, ADEM is to prepare a plan for the county or city (\vith such plans including potential site locations for municipal solid waste landfills). See Code ofAlabama§§ 22-27-47(a) and (h).

Additio11al/Independent ADEM Consideration ofSiting Factors. In addition to the broad authority noted above, the Act specifically requires "the evaluation of facility sites based on a broad group of factors including, but not limited to, environmental conditions, local needs for waste management, social and economic impacts on the host community, the availability and impact on pubic services, and the consistency of a proposed facility with any fmal Solid Waste Management Plan." See Code ofAlabama§ 22-27-40(5). That it also authorizes local governments to engage in solid waste disposal management and prescribes certain n1ini11ic111z elements for local solid waste management plans (which include these considerations), does not appear to reflect a legislative intention to create a bifurcated solid waste disposal siting and pennitting process in Alabama. Rather, the Act clearly articulates that Alabama Legislative intent was: "to develop an i11tegrated system of planning for solid waste management in the state by local governments, regional planning commissions, and the department [ADEM]," and "to put into place the necessary procedures so that an effective and integrated statewide network of solid waste management facilities may be planned, developed, and operated for the benefit of the people of the state." See Code ofAlabama§§ 22-27-41(1); 22-27-42(2) (emphasis added).

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'Ibis integrated approach does not limit ADEM' s authority to engage in additional analyses of siting factors for specific landfills. In fact, in addressing the local governments' role in solid waste disposal, the Act takes great care to note that local approval (which includes analysis of safety and socioeconomic factors) for disposal sites is "i1i addition to any other approvals which are necessary, ... ,"including ADEM's approval. See Code ofAlabama§ 22- 27-5(b) (emphasis added). Section 22-27-48(a) of the Act reiterates this concept by stating that for local approval of a solid waste disposal site, "such approval or disapproval ... is in addition to any other approvals required from other regulatory authorities ...." The only prescription made in the Act relating to siting of disposal facilities is that local approval of a particular landfill site be made prior to any other approvals. See Code ofAlabama§ 22-27-48(a}. To this end, the Act prohibits ADEM from considering an application for a new or modified disposal facility ''unless such application has received approval by the affected unit of local government having an approved plan." See Code ofAlabama§ 22-27-48(a); see also ADEM State Solid Waste Plan - Phase I at 8-1 ("the local governing body's approval is in addition to and prior to any other required approvals.''.).

Neither the "prior local approval" nor its "additional" characteristic create a bifurcated system whereby only local governing bodies can consider safety or socio-economic issues in locating solid waste disposal facilities. Similarly, the fact that the Act sets out minimum factors for local authorities to consider during the siting phase of a disposal facility (including safety and socio-economic factors) does not create an implication that such considerations are only to be made at the local level, particularly when read against the Act's grant of broad authority to ADEM. Rather, the Act's characterization of local siting approval as "additional," combined with the Act's broad grant of authority to ADEM to develop a State Solid Waste Management Plan that ensures that "all aspects of local, regional, and state planning, zoning, population estimates, and economics are taken into consideration," provides substantial support for interpreting the Act as allo\ving ADEM to implement the follo\ving three Recommendations: 74

• ADEM should require that local governing bodies submit to ADEM, along with their local approval of solid waste landfill permit applications, detailed analyses of the six minimum siting factors (as set out in the State's Solid Wastes Disposal Act and ADEM's implementing regulations) that were considered by the local body in connection \Vith t11e site-specific permit;

•Where a local body's analyses oftl1e six minimum siting factors is not sufficient (as determined by ADEM) or not done, ADEM should undertake its own consideration of these factors during its permitting of a municipal solid waste landfill; and

• ADEM should put in place a program to oversee local government implementation of local solid waste management plans.

74 As noted previously, the three c~ses cited by ADEM's General Counsel on this matter do not support ADEM's position on the limitations on its authority under the Act.

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State Plan Reco1nn1endations. In addition, EPA also recommends that ADEM implement three of its own recommendations as contained in Phase II of the State's Solid Waste Management Plan. These three recommendations focus on improved ADEM oversight of local plans and improved considerations of safety and socio-economic factors at proposed landfill sites. These recommendations are:

• to add under the Powers and Duties of ADEM - that ADEM can deny a permit or refuse to issue a permit where (1) the local agency fails to submit annual reports on the implementation of the local plan; or (2) in order to force compliance with a local plan. See Phase II ofthe State Solid Waste Disposal Plan at pps. 128-129;

• that local solid waste advisory committees be formed to develop and review plans and policies relating to solid waste management. These advisory committees are to be made up of community leaders, educators, industry representatives, environmental organization representatives, ru1d the media. Id. at p.130; and

• that a local Conflict Resolution Program be established to resolve disputes over issues such as "traffic, buffers, land value, hours of operation .... "Id. at p. 158. "Any such agreement may then be added as conditions to the permit issued by the Department [ADEM]." Id.

Although the contents of both Phase I and II of the State Plan have been adopted into ADEM's regulations, it is unclear whether or not these Phase II recommendatio11s are already a part of ADEM's regulatory requirements. This is because, in adopting the State Plan into its regulations, ADEM noted only that each Phase was adopted "to the extent allowed by la\v." See ADEM Regulation 335-13-9-101 (Phase I) and 335-13-9-.02 (Phase II). During the course of this Title VI investigation, EPA requested clarification on this point from ADEM's General Counsel's Office but was informed that this issue is currently "in litigation/appeal now and responding to your inquiry at this time could impact those case(s)." See Electronic Message from Shawn Sibley, ADEM Associate General Counsel, to Nancy L. Tommelleo, EPA (February 21, 2003). In any event, pursuant to the above discussion on ADEM's authority under the State's Solid Wastes Disposal Act, EPA believes that ADEM already has the authority to implement tl1ese Phase II State Plan recommendations.

CONCLUSION

As noted in detail in this Investigative Report, there is no evidence to support Part 7 disparate impact violations for the four landfills which are the subject of Allegation #1 and the recommendation is for Allegation #1 to be dismissed. In addition, there is no evidence supporting an intentional discrimination claim against ADEM for its permitting of solid waste landfills in Alabama and the recommendation is for Allegation #2 to be dismissed. Finally, EPA notes that the administration of ADEM's Solid Waste Program may nevertheless lead to

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violations of EPA's Title VI regulations in the future because the potential failure to consider safety or socio-economic impacts could lead to ADEM-pennitted landfills that have an adverse disparate impact on a population protection by EPA 's Part 7 regulations. In light of this, EPA recommends that ADEM take the following actions with regard to its solid waste program:

• ADEM should require that local governing bodies submit to ADEM, along with their local approval of solid waste landfill permit applications, detailed a1talyses of the six minimum siting factors (as set out in the State's Solid Wastes Disposal Act and ADEM's implementing regulations) that were considered by the local body in connection with the site-specific pennit;

•Where a local body's analyses of the six minimum siting factors is not sufficient (as detennined by ADEM) or not done, ADEM should undertake its own consideration of these factors during its permitting of a municipal solid waste landfill;

• ADEM should put in place a program to oversee local government in1plementation of local solid \Vaste management plans; and

• ADEM should implement its own "recommendations" as contained within Phase II of the State's Solid Waste Management Pla11.

96