UNITED STATES OF AMERICA
BEFORE THE ENVIRONMENTAL PROTECTION AGENCY
Complaint of Discrimination
Pine Bluff for Safe Disposal
Chemical Weapons Working Group
Evelyn Elaine Yates
Dale Muhammad
Brainard Bivens
Complainants,
-vs-
Arkansas Department of Environmental Quality
Respondents
I. INTRODUCTION
This is a complaint of discrimination on account of race and poverty on behalf of people of African-American ancestry and of low income who will be disproportionately harmed as a consequence of the action of the Respondent Department in authorizing the operation of a chemical weapons incinerator at the United States Army's Pine Bluff Arsenal near Pine Bluff, Arkansas. This proposed facility poses a disproportionate risk of harm to human health among people of color and low income living nearby. This discrimination is contrary to the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, Title VI of the Civil Rights Act of 1964, Presidential Executive Order 12898 on Environmental Justice and EPA Regulations providing for nondiscrimination in programs receiving federal financial assistance, 40 C.F.R. Part 7B. Complainants ask that this matter be referred for investigation to the EPA Office of Civil Rights and that compliance be achieved through the denial of the subject facility permits or that the discriminatory impact be avoided by requiring the use of an available alternative treatment technology which poses less risk of harm.
II. JURISDICTION
The Agency has jurisdiction to receive, investigate and remedy complaints of discrimination on account of race pursuant to 40 C.F.R. Section 7.120 and 7.130. Executive Order 12898 imposes a duty on the Agency to identify and address disproportionately high and adverse human health and environmental effects of its programs, policies and activities on minority populations and low- income populations.
PARTIES
Pine Bluff for Safe Disposal (PBSD) is a citizen's organization which seeks to protect human health and the environment in the Pine Bluff, Arkansas area. Evelyn Elaine Yates 5613 West Jones; Dale Muhammd 6B Cottonwood Circle; and Brainard Bivens of South Olive Street are members of Pine Bluff for Safe Disposal of African American origin who live in Pine Bluff and will be impacted by the incineration facility. PBSD has actively opposed plans by the United States Army to construct and operate an incinerator at the Pine Bluff Arsenal for the purpose of burning stockpiled chemical warfare agents and munitions on the grounds that incineration poses unacceptably high risks to human health and the environment. PBSD has advocated the use of safer alternative technologies for treatment of these agents and munitions. PBSD has over 30 members, the majority of which are African American and low income who live in the Pine Bluff area, within 17 miles of the Depot. The Chemical Weapons Working Group (CWWG) is an international coalition of citizens' organizations and individuals in the U.S. and Pacific advocating for safe disposal of the chemical weapons stored in their communities. The CWWG has members at all nine U.S. chemical weapon stockpile sites, including Pine Bluff, Arkansas and has members in Pine Bluff and elsewhere who are of African American ancestry, as well as low income members. The CWWG is united in opposing incineration and advocating safer disposal methods.
The Arkansas Department of Environmental Quality (ADEQ) is an agency of the State of Arkansas which is responsible for, among other duties, administering the federally approved and federally assisted program to implement the federal Resource Conservation and Recovery Act (RCRA) including the licensing and regulation of facilities for the treatment, storage and disposal of hazardous wastes. As part of this federally assisted RCRA program the ADEQ issued Hazardous Waste Facility Permit on January 15, 1999, CSN: 35-0116; #1789-A, to the United States Army, Pine Bluff Arsenal for the Pine Bluff Chemical Demilitarization Facility for the incineration of chemical weapons agents and munitions.
IV. COMPLAINT OF DISCRIMINATION
On July 26, 1998 the respondant published a Legal Notice on the proposed decision to issue an RCRA hazardous waste permit for treatment and storage of the chemical weapons stockpile at the Pine Bluff Arsenal in Pine Bluff, Jefferson County, Arkansas. The Public comment period continued through September 28, 1998. On September 28, 1998, complaintants submitted 136 pages of comments, including concerns about environmental justice. The Arkansas Department of Environmental Quality issued a permit on January 15, 1999 and responded to comments on environmental justice by stating that its agency is "not the appropriate agency to relieve and investigate formal complaints related to Title VI of the Civil Rights Act of 1964, Presidential Executive Order 12898 on Environmental Justice, and 40 CFR Part 7B."
The operation of the proposed chemical weapons incinerator at the Pine Bluff Army Depot as authorized by the Respondent Arkansas Department of Environmental Quality (ADEQ) will disproportionately and adversely harm people of African- American ancestry and low income living near the facility.
Contrary to law, the actions of the Respondent have the effect of denying service, aid or other benefit to persons on the basis of race and income; have the effect of restricting the enjoyment of advantage and privilege enjoyed by others on the basis of race and income and by the use of criteria or methods of administering its program has the effect of subjecting persons to discrimination because of their race or income. In addition the Respondent ADEQ has approved the selection of a site or location for the proposed incinerator facility which has the purpose or effect of discrimination because of race or income. Because this site is an African American community with a high level of poverty and pollution, the respondent had an obligation to take these things into account in permitting another pollution source. Finally, upon information and belief the State of Arkansas has long practiced official racial discrimination and, therefore, has a duty to take affirmative action to remedy the racially disparate impact of the permitting of this facility.
According to the U.S. Army's "Disposal of Chemical Agents and Munitions Stored at Pine Bluff, Arkansas Revised Final Environmental Impact Statement" April 1997, 4.10 Environmental Justice section, analyzing census tracks, these data show that Jefferson County has a much larger minority population relative to the population size than the State, and has a slightly higher incidence of poverty than the State. To the east, southeast and northwest of the arsenal, lies the city of Pine Bluff, the second largest city in Arkansas, where African Americans make up on average 65% of the population with 12 census blocks that exceed the state's percentage minority by 20 percentage points or more. Jefferson County also has a high poverty rate with 24% of its residents living below the poverty level, in Pine Bluff, 28% live below the poverty level according to the 1990 Bureau of Census. The national average is 13.2%.
The Army's FPEIS goes on to state that "If the minority and low income populations have less access to transportation, have poorer general health, and/or are less educated than the general population, then those populations could be affected more significantly if an accidental release were to occur." Further it states that" the siting analysis does not consider the distribution of human health risks with regard to minority and/or low income populations."
The Pine Bluff Chemical weapons incinerator will routinely release unburned chemical warfare agents, heavy metals and other toxic substances which harm human health. Notable among these routine releases are the powerfully toxic family of dioxin-like substances which are known to cause harm to humans including cancers, reproductive damage, neurological damage and birth defects. The risk assessment for the Army's Utah chemical weapons incinerator disclosed that routine operations will expose particularly vulnerable breast-feeding infants living near the facility to risks exceeding the EPA's acceptable risk standard. Since the draft permit allows for release of 2,3,7,8-Tetrachlorodibenzo-p-dioxin and its congeners, it cannot protect the health of Pine Bluff residents or nursing infants. Since nursing infants in the African American and low income communities of Pine Bluff and Jefferson County are already subjected to high background levels of pollution from area industries, additional contaminants from the incinerator stacks will cause additional cumulative and synergistic health effects in this communities.
In addition to the risk posed by the proposed incinerator, African- Americans and poor people living near the Pine Bluff Army Depot have been disproportionately and adversely impacted by pollution from other industries and the U.S. military. Respondent ADEQ has failed to consider such cumulative and synergistic health effects of incinerator emissions on a community which has already had high levels of toxic exposure. The African American and poor population residing near the PBA incinerator site and down wind have been exposed to many other pollutants over their life times in this heavily polluted area.
Already nearly 2 million pounds of chemicals are released annually into Jefferson County's air, ranking it in the top 20% of all US counties for cancer hazards, non cancer hazards, and air releases of recognized carcinogens according to the Environmental Defense Fund. It also ranks in the top 20% on water releases of recognized carcinogens, and air releases of suspected carcinogens. In 1996, 1,945,057 pounds of chemicals were self reported by industry to be released in Jefferson County's air, according to the Toxics Release Inventory National Report. Additionally, 221,221 pounds were reported as fugitive air releases, and 33,855 pounds were released into the water, and 58,963 released to the land.
Known toxic air releases in Jefferson County (pounds reported in 1996 Toxic Release Inventory):
163,983 were recognized carcinogens,
43,162 suspected carcinogens,
388,309 suspected cardiovascular or blood toxicants,
77,202 recognized developmental toxicants,
1,835,147 suspected developmental toxicants,
5,164 suspected endocrine toxicants,
184,935 suspected immunotoxicants,
353,485 suspected kidney toxicants,
2,034,965 suspected gastointestinal or liver toxicants,
1 musculoskeletal toxicant,
2,072,475 suspected neurotoxicants,
4,914 recognized reproductive toxicants,
374,325 suspected reproductive toxicants,
2,166,268 suspected respiratory toxicants, and
2,142,043 suspected skin or sense organ toxicants.
* Note: Some chemicals are associated with more than one health effect, so their release may be counted multiple times in this table. Health effects computed by the Environmental Defense Fund.
Jefferson County is also located near prime agricultural land, where pesticides are used on crops further adding to pollution levels. The Army performed a study in 1992 showing a synergistic interaction between pesticides and nerve agent.
Synergistic and cumulative effects of these pollutants, chemicals, pesticides, insecticides and herbicides combined with the agent and other pollutants emitted from the incinerator will deleteriously effect the health of the African American and poor population of the area. Those at the greatest risk are infants, and children, who are more sensitive to many of the chemicals released.
ADEQ fails to consider how additional exposures will impact low income people who may not have access to adequate health care or nutrition. It also fails to adequately consider the impact of these chemicals on those who are most vulnerable, infants and children.
Numerous accidents, fires, explosions, nerve agent leaks, and other mishaps at the Army's existing chemical weapons incinerators suggest that such an event at the Pine Bluff facility may release toxic nerve or mustard agent causing death or severe injury to nearby populations. African-Americans and people of low income are threatened with disproportionately high and adverse human health and environmental effects from the Respondent Department's action in authorizing the operation of the chemical weapons incinerator at the United States Army's Pine Bluff Arsenal near Pine Bluff, Arkansas.
Safer non-incineration alternatives are readily available to effectively destroy the chemical weapons arsenal stockpiled at the Army's Pine Bluff Arsenal which would avoid exposing people of African-American ancestry and low income to the disproportionately high and adverse human health and environmental effects posed by incinerator emissions. In 1996, President Clinton vowed to make development of non-incineration alternatives the "highest priority" in the chemical weapons disposal program and legislation was passed placing a moratorium on incinerator construction in Kentucky and Colorado. A new program was established, the Assembled Chemical Weapons Assessment (ACWA) to look at alternatives for disposal of assembled chemical weapons. Six non- incinerator alternative technologies for destroying chemical warfare agents passed the initial evaluation process required by Congress as part of its directive to identify non-incineration alternative technologies, and three technologies have completed demonstrations with reports due to Congress in September.
The ACWA program includes a Dialogue which involves citizens from all chemical weapons stockpile sites and is a model for solving complicated environmental problems. The ACWA program has recently been selected by Harvard University's School of Government's Innovations in American Government Program as one of 98 semi-finalists based on its novelty, effectiveness, significance, and transferability. Although residents from Pine Bluff have participated in the ACWA dialogue, the granting of this incineration permit by the ADEQ denies the opportunity for Pine Bluff residents to benefit from these technologies.
Safer non-incineration technologies, neutralization, and bioremediation are already being used on stockpiles at Aberdeen Proving Ground in Maryland and Newport Army Depot in Indiana, where the Army abandoned incineration plans in 1996. The stockpile at Pine Bluff Arsenal is 83% identical to the stockpile at Aberdeen Proving Ground which is made up of mustard agent in one ton containers which will be disposed of using neutralization methods. However, the demographics on race and income differ dramatically. The population of Harford County, according to the Aberdeen Proving Ground Site Report prepared by Battelle Pacific Northwest Laboratories, is 90% white and 8% African American, with only 5% living below the poverty level, compared with the population of Jefferson County, where the Pine Bluff Arsenal is located, which is 43% African American with 24% of its population living below the poverty level.
Respondent ADEQ is granting of this permit in effect denies communities surrounding the arsenal the benefit of safer technologies which are being used in other communities.
Respondent ADEQ's granting of this permit reinforces a pattern of discrimination by the U.S. Army in which lower income communities of color are being asked to accept chemical weapons incinerators, while other communities move forward with safer technologies. In order for environmental justice to be achieved, the safest technologies must be made equally available to all communities regardless of race, income, or national origin.
Lastly, the Respondent ADEQ's permission to transport out-of-state non-stockpile chemical weapons to PBA adds further insult to injury, and reinforces local fears that once an incinerator is built it will be used for years to come for toxic and chemical waste from across the country. The Pine Bluff Arsenal is already the second largest chemical weapons storage site in the United States, and one of only two sites which is permitted to accept out-of-state shipments of non-stockpile weapons. In March of 1999, the Army announced plans to ship chemical weapons found in the affluent D.C. neighborhood of Spring Valley to Pine Bluff Arsenal for disposal. Pine Bluff Arsenal has also accepted non-stockpile weapons from Mississippi, New Jersey, and elsewhere. Information has been presented to Respondent ADEQ by Anthony Flippo, a former chief weapons inspector, showing that he raised concerns as far back as 1994 about serious storage hazards at Pine Bluff Arsenal. Among his concerns, non-stockpile weapons have been misidentified, and are being stored incompatibly with other weapons. He called the non-stockpile storage situation at Pine Bluff an "accident waiting to happen." These concerns remain unaddressed, and the respondent continues to allow out-of-state weapons shipments to Pine Bluff despite the risks to the community.
RELIEF
For the foregoing reasons complainants ask that this matter be referred for investigation to the EPA Office of Civil Rights and that compliance be achieved through the denial of the subject facility permits or that the discriminatory impact be avoided by requiring the use of an available alternative treatment technology which poses less risk of harm. Respectfully submitted,
June , 1999
Robert Guild
314 Pall Mall
Columbia, South Carolina
(803) 252-1419
ATTORNEY FOR COMPLAINANTS
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