Deregulation of hazardous wastes will increase health risks to vulnerable communities.
On Tuesday, dozens of environmental justice community leaders, scientists, academics, and lawyers from around the country testified in Arlington, VA at a public hearing asking the Environmental Protection Agency ("EPA") to withdraw a rule finalized during the waning days of the Bush administration to revise the definition of solid waste. Under the new rule, unlicensed and barely supervised companies will handle hazardous industrial wastes, some of which are highly flammable, explosive and corrosive, that contain dangerous chemicals known to cause cancer, neurological damage, birth defects, lupus and immune disorders.
Environmental justice leaders are calling on the Obama Administration to bring relief to communities that find themselves on the front line of toxic assaults. Many of these impacted communities are not unlike the Southside Chicago neighborhood and the Altgeld Gardens housing development where the young Barack Obama worked as a community organizer. Longtime environmental justice pioneer Hazel Johnson described her Altgeld Gardens community as a "toxic doughnut" because it is surrounded by all kinds of wastes facilities and other locally unwanted land uses. Environmental justice leaders from New York to California want EPA administration Lisa Jackson to put protection back in the Environmental Protection Agency. In short, they want to see change that was promised in the historic November election.
Tracking Wastes from Cradle to Grave
Under this new rule, hazardous wastes destined for recycling are no longer included within the definition of "solid waste" subject to Resource Conservation and Recovery Act's (RCRA) regulation. The loophole exempts 1.5 million tons of hazardous waste from the RCRA protective "cradle to grave" management system and excuse thousands of companies from complying with rules that protect human health and the environment. Thus, facilities that claim to recycle hazardous wastes are no longer required to comply with RCRA's safe-handling and reporting requirements. One need not be a rocket scientist to predict which neighborhoods will become the unofficial "dumping grounds" for the unregulated wastes.
Clearly, recycling is the green, clean, and safe way to go. However, all recycling is not created equal. Sending more dangerous hazardous wastes into already overburdened communities under the pretense of recycling is a clear case of environmental injustice. Recycling "shams" and "fly-by-night" operations place low-income and people of color communities at special risk. Recycling is only part of the solution. More emphasis on pollution prevention is needed to reduce or eliminate the use and waste of toxic materials throughout the life cycle.
It is important that we not forget that is was a sham recycler in 1978, more than three decades ago, that illegally dumped oil contaminated with polychlorinated biphenyls (PCB) along 210 miles of North Carolina's roadways. The contaminated dirt was later scooped up and dumped in a 142-acre landfill in rural, poor, and mostly black Warren County, North Carolina in 1982-sparking protests, arrests, and the national Environmental Justice Movement.
Deadly Mix of Wastes and Race
The Warren County protests led the United Church of Christ Commission for Racial Justice in 1987 to produce its landmark Toxic Wastes and Race report, the first national study to correlate hazardous waste sites and demographic characteristics. Race was the most significant factor in locating the waste facilities. The 1987 study was revisited in 1994 and found that people of color were 47 percent more likely to live near a hazardous waste facility than white Americans. It took more than two decades for Warren County residents to get the leaky landfill site detoxified by the state and federal government. In all, a private contractor was paid $18 million to dig up and burn more than 81,500 tons of contaminated soil in a kiln on site. The 2007 UCC Toxic Wastes and Race at Twenty report found people of color make up 56 percent of residents living in neighborhoods within two miles of a commercial hazardous waste facility. People of color make up 69 percent of residents of neighborhoods with clustered facilities.
Over the past two decades, too many African American and other people of color communities have become environmental "sacrifice zones" where polluting industries routinely expose nearby residents to dangerous emissions and releases into the air, water, and ground. Given the waste industry's dismal environmental record, less EPA oversight is a recipe for "toxic overload" on our most vulnerable population, including children, and more expensive clean-ups. The new solid waste rule completely disregards the overwhelming empirical evidence-at superfund sites across this country-that "recycling" of hazardous waste is a very dangerous practice, which, if not stringently regulated, frequently results in the release of extremely toxic chemicals. In the new rule, the EPA removed critical safeguards at these high-risk facilities, and history has shown that this will lead to the generation of Superfund sites and the imminent and substantial endangerment of public health and the environment from toxic waste.
Government Response to Unequal Protection
A 1992 National Law Journal uncovered a racial divide in the way the U.S. government cleans up toxic waste sites and punishes polluters. White communities see faster action, better results and stiffer penalties than communities where blacks, Hispanics and other people of color live. This unequal protection often occurs whether the community is wealthy or poor. Clearly, unequal protection and the "politics of pollution" exacerbate environmental health disparities in our society.
In its January 2007 assessment of problems associated with recycling of hazardous secondary materials, the EPA identified 208 damage cases of serious contamination of air, water and soil from unsafe hazardous waste recycling. An additional 600 potential damage cases were not examined by EPA in its rush to finalize the rule. Nearly 96 percent of the damage cases included in the study occurred at facilities that were exempt from RCRA's strict oversight. In contrast, only 4 percent of these cases occurred at facilities controlled by RCRA permits that set stringent standards for storage, transport, treatment and disposal. Thus, it is clear that strict oversight of this high-risk activity is absolutely critical. Exempting millions more tons of hazardous waste will only increase the public's exposure to toxic chemicals and raise the need for taxpayer-funded cleanups. Sham waste recycling operations in 38 states have created hundreds of contaminated sites, including more than 100 Superfund sites, totaling more than $436 million in cleanup costs.
During the rule-making process, EPA failed to evaluate how the new RCRA exemption conforms with the 1994 Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which seeks "to ensure that no segment of the population, regardless of race, color, national origin, income, or net worth bears disproportionately high and adverse human health and environmental impacts as a result of EPA's policies, programs and activities." Under this Order, each Federal agency must make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health and environmental effects of its programs, policies, and activities on minorities and low-income populations.
Over the past eight years, the EPA routinely neglected its legal and moral obligation to avoid and redress environmental injustice, and this rule is yet another disturbing example of that neglect. A March 2004 Office of Inspector General (OIG) report, EPA Needs to Consistently Implement the Intent of the Executive Order on Environmental Justice, summed up the agency's treatment of environmental justice. The report reads, after a decade, EPA "has not developed a clear vision or a comprehensive strategic plan, and has not established values, goals, expectations and performance measurements" for integrating environmental justice into its day-to-day operations. A 2005 U.S. Government Accountability Office (GAO) report, EPA Should Devote More Attention to Environmental Justice When Developing Clean Air Rules, chastised the agency for devoting little attention to environmental justice when drafting three clean air rules.
And in September 2006, the EPA's OIG released yet another report, EPA Needs to Conduct Environmental Reviews of Its Program, Policies and Activities, criticizing the agency for falling down on the job when it comes to implementing environmental justice. There is little question that the EPA should have conducted a thorough equity analysis under Executive Order 12898 to assess the impact of the new rule on low-income and minority populations. This was not done. The EPA irrationally claimed that removing government oversight of hazardous waste recyclers will have no environmental impact, and therefore cannot have a disproportionate impact on anyone. The agency presents no data to support this outrageous claim.
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