 

 

 June 30, 2009

STATEMENT OF LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW REQUESTING
EPA WITHDRAW REVISIONS TO THE 

DEFINITION OF SOLID WASTE RULE 

	The Lawyers’ Committee for Civil Rights Under Law (“Lawyers
Committee”) requests the Environmental Protection Agency (“EPA”)
withdraws the recently promulgated rule on the Definition of Solid
Waste.  The rule severely reduces RCRA oversight of hazardous wastes
that are allegedly “recycled,” and completely disregards the
overwhelming evidence that “recycling” of hazardous waste is a very
dangerous practice, which, if not stringently regulated, frequently
results in the release of extremely toxic chemicals.  EPA’s new rule
removes critical safeguards at these high-risk facilities which will
lead to the imminent and substantial endangerment of public health and
the environment from toxic waste.  

The Lawyers' Committee for Civil Rights Under Law, a nonpartisan,
nonprofit organization, was formed in 1963 at the request of President
John F. Kennedy to involve the private bar in providing legal services
to address racial discrimination. The principal mission of the Lawyers'
Committee is to secure, through the rule of law, equal justice under
law.  For forty-six years, the Lawyers' Committee has represented
victims of discrimination in virtually all aspects of life.  

In 1991, the Lawyers' Committee formed its Environmental Justice Project
to represent communities of color in environmental and civil rights
matters.  Minority and low income communities disproportionately bear
the burden of environmental pollution.  More than 5.1 million people of
color, including 2.5 million Hispanics or Latinos, 1.8 million African
Americans, 616,000 Asians/Pacific Islanders and 62,000 Native Americans
live in neighborhoods with one or more commercial hazardous waste
facilities.

Executive Order 12,898 directs all agencies to address the
disproportionate environmental impact their programs and policies may
have on minority and low-income communities.  This requirement is in
addition to the EPA’s overall responsibility to protect all
communities from environmental degradation.   Additionally, the
Fourteenth Amendment to the U.S. Constitution and Title VI of the Civil
Rights Act of 1964, 42 U.S.C. 2000d, require the EPA to ensure its
policies are not racially discriminatory.  

President Clinton’s memorandum accompanying the Order stressed the
Administration’s efforts to “prevent those minority communities and
low-income communities from being subject to disproportionately high and
adverse environmental effects.”  Furthermore, Title VI’s prohibition
of discrimination in any program or activity receiving federal funds and
the EPA’s regulations prohibiting any program or activity receiving
EPA assistance from discriminating on the basis of race, color, national
origin or sex demonstrate the compelling interest of the government and
the EPA to eliminate the disparate impacts of its policies and
practices.

Despite these laws and executive action, EPA’s recent history has been
to avoid addressing the burdens on environmental justice communities. 
On March 1, 2004, the EPA’s Office of the Inspector General (OIG)
issued its evaluation report entitled, “EPA Needs to Consistently
Implement the Intent of the Executive Order on Environmental Justice.”
 In this report, the OIG concludes, and, indeed, devotes a full chapter
to, the fact that the “EPA Has Not Fully Implemented Environmental
Justice,” and specifically finds that the EPA “has not fully
implemented Executive Order 12,898 nor consistently integrated
environmental justice into its day-to-day operations.”  

In July 2005, the Government Accounting Office found the EPA continuing
its failure to address environmental justice by devoting minimal
attention to environmental justice in its development of clean air
rules.  Specifically, the GAO found (1) the initial form prepared for
senior management did not address environmental justice, (2) the lack of
guidance and training limited workgroups’ ability to identify
potential environmental justice concerns, and (3) the economic reviews
did not always provide decision makers with an environmental justice
analysis.  

The EPA, under this new Administration, must not continue the total
disregard for the Executive Order by affirming a rule that allows for an
increase in hazardous waste in minority and low-income communities. 
Prior to promulgating the rule, EPA declined to investigate the
disparate impact of the revision to the definition of solid waste on
low-income and minority communities, arbitrarily concluding that the
revision would have no environmental impact.  The EPA’s cursory
statement that no disparate impacts are expected and its failure to
conduct any direct analysis on how the rule will affect minority and
low-income communities already suffering under the dark cloud of
industrial pollution and lack of federal enforcement is unjustified and
undercuts the goal of the Executive Order and the overall mission of
EPA.

  

The EPA’s rule exempts 1.5 million tons of hazardous waste from the
Resource Conservation and Recovery Act’s (“RCRA”) protective
“cradle to grave” management system and excuses thousands of
companies from complying with rules that protect human health and the
environment.  Under the 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.  The threat of fire or toxic exposure is most acute
for the largely minority and low-income residents who live near the more
than 5,600 industrial facilities that are now free to generate, store,
and recycle these dangerous substances without permits or adequate
oversight.  

	Given the agency’s failure to consider the environmental justice
impacts of removing vital safeguards on hazardous waste recycling, the
EPA must withdraw this rule.  People of color are disproportionately
represented in the neighborhoods surrounding hazardous waste facilities;
forming an absolute majority near most sites and often a two-thirds
majority where facilities are clustered together.  The EPA’s refusal
to evaluate how this rule would impact the low-income communities and
people of color who already face disproportionate exposure to industrial
toxins is unconscionable.  The Agency’s negligent assertion that
removing government oversight of hazardous waste recyclers will have no
environmental impact and thus no disproportionate impact on any
particular community contradicts the clear evidence already compiled by
the Agency.   

While we are asking the EPA to withdraw this rule in its entirety,
should the EPA fail to repeal the rule, the Lawyers’ Committee echoes
the recommendations of other environmental and community organizations
in demanding the Agency correct some of the rule’s most egregious
provisions, by doing the following:  

The EPA Must Set Enforceable Storage and Labeling Requirements for
Hazardous Materials and Prevent the Storage of Hazardous Materials in
Unregulated Pits, Ditches, Piles and Ponds.

Companies that Do Not Comply with the Rule’s Notification Requirements
Must Not Be Eligible for the Rule’s Exemption.

The EPA Must Create a Stringent Definition of Legitimate Recycling That
Makes Environmental and Public Health Protection Mandatory. 

The EPA Must Withdraw the Exclusion for Off-Site Handling and Recycling.


The Lawyers’ Committee respectfully requests that the EPA withdraw
this rule, which significantly weakens the public’s protection from
millions of tons of hazardous waste and further threatens the health and
safety of America’s most vulnerable communities.  It is the obligation
of EPA to seriously consider how this rule endangers the public and our
environment and take the steps necessary to ensure that hazardous waste,
if recycled, is done so safely, under clear and enforceable rules of
law, and to ensure that no community is disproportionately burdened or
endangered.  

 See Robert D. Bullard et al., Toxic Wastes and Race at Twenty
1986-2007, Executive Summary (Feb. 2007), available at
http://epa.gov/osw/hazard/dsw/abr-rule/env-prob.pdf.

 Presidential Memorandum Accompanying Executive Order 12,898 (February
11, 1994).

 Moreover, on July 21, 2005, 76 congressional members signed a letter to
EPA Administrator Stephen Johnson emphasizing the importance and
necessity of the EPA to address the disproportionate environmental
burdens on racial minorities and low-income communities.

 Revisions to the Definition of Solid Waste, 73 Fed. Reg. 64668,
64756–57 (Oct. 30, 2008).

 See Robert D. Bullard et al., Toxic Wastes and Race at Twenty
1986-2007, Executive Summary (Feb. 2007), available at
http://epa.gov/osw/hazard/dsw/abr-rule/env-prob.pdf.

 See Revisions to the Final Definition of Solid Waste; Final Rule, 73
Fed. Reg. 64668, 64756-57 (EPA Oct. 30, 2008).

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