LAW OFFICE OF DAVID A. LUDDER A Professional Limited Liability Company January 3, 2012 Ms. Helena Wooden-Aguilar, Assistant Director Exterml Complaints and Compliance Program O?ice of Civil Rights US. Environmental Protection Agency Mail Code 1201A 1200 Ave NW Washington, DC. 20460 Re: Title VI Complaint - Alabama Department of Emil-0mm Management Permitting of Arrowhead Land?ll in Perry County, We Dear Ms. Wooden-Aguilar:- This complaint is ?led pursuant to Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d to 2000d?7, and 40 C.F.R. Part 7. 40 ORR. 735(b) provides: A recipient [of EPA ?nancial assistance] shall not use or methods of its program which have the e?'ect of individuals to discrimination because of their race, color, national origin, or sex, or have the effect of defeating or accomplishment of the objectives of the program with respect to individuals of a particular race, color, national origin, or sex. Complainants allege that the Alabama Department of Environmental Management . (ADEM) violated Title VI and implemmting regulations by reissuing Permit No. 53-03 to Perry County Associates, LLC for construction and operation of the Arrowhead municipal solid Waste land?ll in Perry Alabama which has the e?'ect of adversely and disparater impacting A?ican?American residents in the community. I. Title VI Background ?Frequently, discrimination results ?om policies and practices that'are neutral on their face, but have the effect of Facially~neutral policies or premieres that result in discriminatory e??ects violate Title VI regulations lmless it is shown that they are justi?ed and that there is no less alternative.? Boer-5m Guidmce for Invg'?m Title VI laints (available at 9150 McDougal Court 0 Tallahassee 0 Florida 32312-4203 0 telephone 350-336?5671 Facsimile 267-873-5348 0 Email or Web .. h? leak-Fit; i; .M _xhu;? . . A complete or properly pleaded complaint must (1) be in signed, and provide an avenue for contacting the signatory (cg, phone lumber, addr?ss); (2) describe the alleged discriminatory act(s) that violates Title VI regulations (11a, an act that has the e??ect of on the basis of race, color, or national origin); (3) be ?led within 180 calendar days of the alleged act(s); and (4) identify EPA ?nancial assistance recipient that took the alleged act(s). l; at 6 (citing 40 CPR. In order to EPAniustdetei-minethat?) acansal connection between the recipient?s facially neutral action or practice and the allegedly adverse disparate iinpac1; (2) the alleged impact is ?adverse;? and (3) the alleged adversity imposes a disparate impact on an individual org-011p pmtected Imder Title VI. - . - .. EPA OCR File No. zen-994m (July 1, 2003) 3 (citing 40 ca. New York Gig Envtl. Justice v. aim? 214 F.3d 65, 69 (2nd Cir. 2000)). - complies with applicable enviromnen-?lnl regulations will not ordina?ly be considered a substantial, leg?timate justi?cation. Rather, there must be some articulablc value to the recipient in the permitted activity.? justi?cation o??ered will not be considered acceptable if it is shown that a less alternative eidsts. Ifa less discriminatory alternative is practicable, then the recipient must implanent it to avoid a ?nding of noncompliance with the regulations.? it; ?In the event that EPA ?nds discrimination in a recipient?s permitting and the recipient is not able to come into compliance vollmtarily, EPA is by its Title VI Liam (footnotes omitted) (citing 40 CPR. also may use any - i - includingrefer?ngthe matte'rto the Depaztmemoth-zstice (D03) forlitigation. Inappropriatecases,DO-J may?le suit seeking The names, addresses and telephone numbers of the persons making this complaint are as follows: The Complainants are represented by the All contacls with ?ze Complainants should be made the undersigned or with the express pennission of the Imdersigned. ADEM was arecipient of?nancial assistance from EPA at the time Ofthc alleged discriminatory act. For example, EPA recently awarded grants to ADEM as shown in Exhibit A (available at . IV. Act The alleged discn'minatory act is the of Solid Waste Disposal Facility Permit No. 53-03 by ADEM to Perry County LLC for construction and operation of the Arrowhead Land?ll, a municipal solid waste land?ll. Exhibit (aVai-lable at ?Generally, permit renewals shouldbe Heatedand analyzed as ifthey were newfacilitypermits, sincepermitrenewal is, by de?nition, an occasion to review the overall Operations of a permitted facility and make any necessary changes.? Interim Guidance forInv Title VI Administrative Co - laints mm at 7. . Permit No. 53-03 authorizes the disposal of ?[n}onhazardous solid wastes, noninfectious plnrescible Wastes but not to 1d garbage, commercial waste, industrial waste, construction and demolition debris, and othe- type materials? ?om thirty-three stares. Id. ?15,060 tons ofwasteperday?the largest anthorizedwaste disposalvolmneinAlabama. Figure l. presently 256.151 acres, however Perry County LLC has recently applied for 21 169.179 acre expansion. Exhibit C. The facility is located in Perry County, Alabama at approximately Latitude 32.4113? North, Longitude 87 4675" West. Figure 2. V. '1?st 40 C.F.R. requires that acomplaim alleging discrimination under a ?led-within 180 days afterthe alleged discriminatory act. The reissuance of Solid Waste Disposal Facility Pennit No. 53-03 to Perry CormtyAssociategLLC Occurredon Septeanber27, 2011. Thiscomplaintis ?ledwithin 180 days after-the permit was-reissued. Figural AUTHORIZED WASTE DISPOSAL VOLUMES AT ALABAMA LANDFILLS Source: Pmnitted Solid WasteLand?IIs in?le State (available at - - . June 29, 201 1) I TmeLm PineTmSaniaqu mwmm?mFae?q Whim- magnum Veo?aESStarWLan?m. Vea?aESEedarl??lmm I Wmuc 2mm Bits n: Dem-?organ amt, Sauna?, Figure 2 LOCATION OF THE ARROWHEAD LANDFILL PERRY COUNTY, ALABAMA I w" A. .. :3 . to". Co Rd 1 {'30 Rd 53 Mir! mm. The impacts resulting the activities authorized by Permit No. 53?03 include the following: . 1. The frequent emission of offensive odors ?om the land?ll that cause lessened human food and water Make,- inteiference with sleep, upset appetite, irritation of the upper respiratorytract (nose and eyes,headaches, dizziness, nausea, andvomitingamong many of the Complainants. See 3.3., Exhibits (ADEM Complaint List), E1 (Audio Complaints Jul-Dec 2010), E2 (Audio Jan-Jim 2011), and E3 (Audio Complaints Jul-Nov 2011) - (available at 2. deposition on personal and real property of many of the Complainants, including homes, porches, vehicles, laundry, and plantings. See e. Exhibit (Dust Video) (available at 3. in particulate deposition on personal and real property of many of the Complainants, including homes, porches, vehicles, las-mdry, and plantings Exhibit (Mud in Road Sign) (available at 4. Increased noise ?om Operation of heavy machinery (rag. bl?ldozers, tucks, railca'rs) 24?hours per day, 7-days per week causing interference with sleep and other activities within the homes of many of the 5. Increased populations of ?ies that are bothersome in and around the homes of many of the 6. Increased pepulations of that cause around the homes of many of the Complainants. 7. Decreased property values of many of the Complainants. See also Exhibit H1 (EPA Listening Session Invitation), Exhibit H2 (EPA Listening Session Video (June 15, 2011)), and HS Public on Permit Renewal (July 14, 2011)) (available at [compares] the percentage of African Americans in [the] affected popz?ation with thepercentage ofA?-icanAme?cansinthe sez'viceareao??ne] land?llandintheStateto determine whether African Americans near the [are] diSpmportionaIely affected by potemial impacts-? Yerkwood Land?ll 11: for Title VI ve Co- Complaint) (June 2003) at 10. 0 $5011 I a seams? 315. File No. (Y erkwood Land?ll The adverse impacts described above have fallen and continue to fall dispazately upon members of the A?ican?American race. This is illustrated by the 2010 censms block data . included in Figmes 3. The impacted census blocks are 87 to 100 percent A?ican?American. Figure 3 AFRICAN-AMERICAN POPULATION IN 2019 CENSUS BLOCKS TEE ARRO LANDFIIL Source: predominanrraceisWhite. Figures4and5. - Figure 4 LARGEST RACIAL AND ETHNIC GROUPS IN SERVICE AREA STATES Source: I mate I Brad; Hispanic I Asian I WWI-imn I Multiacial I Other ?eki?ib Figure 5 PERCENT AND WHITE POPULATIONS IN SERVICE AREA STATES Source: and Exhibit The percentage of A?ican-Americans among the total pepulajion in the designated thirty??nee state service area is only 15.1%. The percentage ofA?ican?Americans among the total popt?ation in Alabama is 26%. Inasm11ch as the percentage of A?ican? ?cans impacted by the Arrowheadland?ll farexceeds thepercentage ofA?ican-Americans inthe serviceareaand State of Alabama, the alleged impacts are ?disparate? impacts. See Yerkw-ood Land?ll Complaint Decision Document at 5. - Justi?cation and Less D'Bcl'in?natery Alternatives ?Ifthe recipient can neither rebut the of disparate impact nor develop an legitimate interest thatjusti?es the decision to procwd with the pamit notwithstanding the dispaiateimpact? .?danacef is: 'I'itleVIAxhninistzmive lainls Permits at 4. ?mhere must be me articulable value to the recipient in the permitted activity.? at 11. ?The justi?cation must be necessary to meet ?a legitimate, goal integal to [the recipient?s] mission.? Invm? 've for Title 60. ?Even a legitimate impact.? Interim .. - - - an a . - Permits at 4. ?Tacially-neutral pohcies or practices that result an discriminatory effects violate Title VI regulations unless it is shown that they are justi?ed and that there is no less discriminatory alternative.? 1d; at 2 (footnote omitted). ?Merely demonstrating that the permit complies with applicable environmental regulations will not ordinarily be considered a substantial, legitimate justi?cation.? E: at 11. And, ?[i]fa less discriminatory alternative is practicable, then the recipient must implement it to avoid a ?nding of noncompliance with the .Id IPG. State ofAlabamainthepermittingof Land?ll. Itis not likelythatADEM orthe State of Alabamahas asubstantial, legitimate interestinthe permitting ofthe Arrowhead Land?ll. The BFI-Selma Transfer Station is located at 1478 Ala. Hwy. 41 in Selma, Alabama (Ia?mde 3234773" North, Longitude 817.0006?" West), approximately 31miles east-somheast of Uniontown. ?Marion and Perry County?s use of Bil-Selina assures them access toafacil-itythatwillbeableto througiout the life of this plan. EFT-Selma is expected to remain an active disposal option to the City of Marion and unincorporated Perry County through 2014.? 10?Year Solid Waste :an an Plan for -- - Co -. . Alabama (Nov. 2004) at 22, Exhibitl (available at ?[G]iven their market share and ?nancial resources, BFI is not likely to run out of-space to dispose ofwaste collected at Selmadmingthelifeofthisplan.? lg at38. one mile of the BFI-Selma Transfer Station 11 The Pine Ridge Land?ll is located at 520 Murphy Road in Meridian, Mississippi (La?mde 32.37677" North, Longiurde 88.61435? West), approximme 70 miles west of Uniontown. ?The City of Uniontown send[s] waste generated its jmisdiction and the Town ofFannsdale to the Pine Ridge Land?ll. Pine Ridge is a Subtitle located approximately 75 miles west of Uniontown in Mssissippi] . . 1d,, ?Pine Ridge?s Land?ll Operations Manager es?matedthatthe facilityhas capacity'to dispose ofwasteforat least?re next 30 years.? _Ig_1._a123. Thereappearto be anumberofresidences within one mile of the Pine Ridge Land?ll along Murphy Road and Sweet Gum Bottom Road. 2010 census data for Census Blocks 106.4000 and 106.5000 indicate that the A?ican-Ametican Arrowhead Land?ll. The Choctaw County Regional Land?ll is located at 1106 Fire Tower Road in Butler, Alabama (Latitude 32.04541? Norm, Longitude 8827016? West), approximately 52 miles southwest of Uniontown. The Choctaw Cormty Regional Land?ll is authorized to accept solid waste?-omallofAlabama. area. The BFI-Selma Transfer Station, Pine Ridge Land?ll, and Choctaw County Regional Land?ll offer less and practicable alternatives to the Arrowhead Land?ll for the . disposal of municipal solid waste generated in Perry Cormty. IX. ADEM?sAssmandm With each application for EPA ?nancial assistance, ADI-EM is required to provide assurances that it "Will comply with the requirements 01? 4O C.F.R. Part 7 implementing Title VI. 40 CPR. See Standard Form 424B (?As the duly authorized representative of the applicant, I certifytharthe applicant: 5? Federal stahrtes relatingto nondiscrimination. These include but are not to: Title VI of the Civil Righm Act of 1964 (PL. 88-352) which prohibits discrimination on the basis of race, color or . . As mentioned above, 40 CPR. 7.35(b) prohibits ADEM ?om criteria or methods of its program(s) in a manner which has the effect of subjecting individuals to discrimination on the basis of race. However, ADEM has no arrdsority to consider disparate .: as .. A e. s: 2 EMC DooketNos. 03-01 and 03-02, 2003 AL ENV LEXIS 6, *28 (Mar. 13, 2003) has not been granted the statutory authority to consider racial impact issues where there?s an appeal ofthe granting ofa. permit?); Holmes v. of Envtl. 1 'sm EMC Docket No. 98-04, 1998 AL ENV LEXIS 1, *30-31 (Feb. 17, 1998) (?The governing Statutes and regmations do not confer on the Department any power to consider [the racial makeup of the neighborhood] in deciding whether or not to issue a permit?). Without such authority, assurances of compliance with Title VI and 40 C.F.R. Part 7 are empty .: 12 Inthiscase, applicable laws and without regard to the racial composition of any impacted commrmities. This allegation is, in essence, a claim actions do not intentionally have adverse impacts on racial minorities. While this may be so, it fails to recognize obligation rmder Title VI to avoid 1minterrtional e?'ects. ?Frequently, discrimination results from policies and practices that are neutral on their face, but have the e?ect of Facially?nernral policies or practices that result in e?'ects violate Title VI regulations unless it is shown that they are justi?ed and that there is no less ry alternative.? Interim Guime for Inv?'mg? . Title VI - . 1 - Pwmitsat2(foomote omitted). . F4 3. Often, ADEM asserts that it grants permits in accordance with applicable laws and regulations (?criteria?) that are designed to protect human health and the environment. Compliance'with these ?criteria,? ADEM suggests, ensures that racial minorities are impacted no di?t?erently than other races. This allegation ignores the fact that (1) members of the A?-ican- American race are disparater a?-?ected by the Arrowhead Land?ll, notwithstanding compliance wi?zl?ae applicable and (2) the applicableeriteriado notaddress myofthe adverse e?ects su??ered by members of the race near the ?Merely demonstrating that the permit complies with applicable envirormental regulations will not ordinarily be considered a substantial, legitimatejus??cation.? at 11.- Inthis case, as in others, ADEM allegesthat it doesnotm-ake land?ll sitingdecisions and that its permitting of a land?ll cannot cause adverse impacts on Comlainarrts. See Of'Ce aria-lain: - easemen- grammar. new? at v: . Permit 53-03 (Sept. 27, 2011) all impact would come as a result of ADEM, however, does not site lies with the local host government?); V. grit?; as ?t ?am EMC DocketNo. 06?08, 2008 AL LEGS 4, *9 (Aug. 22, 2008) (?The law nm ?3 position is 11m it does not on the basis of race, color, national origin, sex, religion, age or disability in the ethninistration ofits programs or activities, in accordmce with applicable laws and regulations. ADEM does not site land?lls. This lies with the local host government?); Lotta James W. Warr Director ADE to Ann B. Goode A O?ce Civil - EPA OCR File No. 28R-99-R4 (February4,2000) (same). severalfacts. First?iepermitgrantedby PerryCourrtyAssociates, LLC-isto site? Sections 21, 22, 27, and 28, Township 17 North, Range 6 East in Perry County. Exhibit B. But for-the land?ll atthis speci?c site, adverseimpactsto site is compliant with ?Land?ll Unit Siting Stmniards? at Ala. Admin. Code R. 335-13- 4-.01. But for his land?ll site is compliant Withthe Sim standards, the land?ll could notbe constructedatthe site and couldnotresult in adverse impactsto Complainants. Thirdthepermitallows operationofthe land?ll, includingdie disposal of 15,000 tons per day of solid waste, and certain operational practices (3.3., recirculation of leachate, alternative daily cover, 24?horns day, 7-days per week operation, etc.). Exhibit l3 B. Operation of the land?ll is as much a. cause of the adverse impacts to the Complainants as the siting of the land?ll. X. Ernst Based upon the foregoing, Complainants that: the US. Environmental Protection Agency- O?ce ofCivil Rights acceptthis determine whether ADEM violated Title VI of the Civil Rights Act of 1964, 4-2 U.S.C. 2000d to 2000d-7, and 40 C.F.R. Part ?7 in the issuance of Solid Waste Disposal Facility Permit No. 53-03 to Perry County Associates, LLC for construction and operation of the Arrowhead land?ll on September 27, 2011. Ifa violation is found and ADEM is unable to demonstrate a substantial, legitimate justi?cation for its action and to voluntarily iraplernent a'less discriminatory alternative that is practicable, Complainants ?nther request that EPA proceedings to deny, atom]a snapend, or terminate EPA funding to ADEM. - Sincerely, QWM David A. Ludder A?omeyfor Complainants cc (without enclosures): Hon. Lisa P. Jackson, Administrator U.S. Protection Agency (via electronic mail: jacksonlisa@epa_gov) Hon. Rafael DeLeon, Director . US. Environmental Protection Agency, Of?ce of Civil Rights (via electronic mail: deleonlafael@epa.gov) Hon. Gwendolyn Kaye's-Fleming Regional Administrator US. Environmental Protection Agency, Reg?on 4' (via electronic mail: Hon. Lance LeFleur, Director - Alabama Department of Environmental Management (via electronic mail: director@adem.state.al.us) Hon. Robert J. Bentley, Governor State of Alabama (via electronic mail: info@governor.alabama.gov) 14 Hon. Terri A. Sewell, Congresswoman House of Representatives, 7th District (via fax: (334) 683?2201) Hon. Bobby Singleton, Chair Alabama Legisla?ve Black Caucus (via electronic mail: bsingle164@yahoo.com) Hon. Linda Coleman, Chair Alabama Senate Black Caucus (via electronic mail: lindacoleman60@bellsomh.net) Hon. Ralph Howard, Representative Alabama House of Represenlaiives, 72nd District (via electronic mail: Ialphhoward@alhouse.org) Hon. Thomas E. Perez, Assistant Attorney General US. Department of Justice, Civil Rights Division (via electronic mail: ?aomas.perez@usdoj .gov) Hon. Kenyon R. Brown, US. Attorney Southern District of Alabama (via electronic mail: kenyen.brown@usdoj.gov) 15