LAW OFFICE OF DAVID A. LUDDER A Professional Limited Liability Company May 30, 2013 Overnight Delivery Ms. Vicki Simons, Director Of?ce of Civil Rights US. Environmental Protection Agency Mail Code 1201A 1200 Avenue, NW. Washington, DC. 20460 Re: Title VI Civil Rights Complaint and Petition for Relief or Sanction - Alabama Department of Environmental Management Permitting of Arrowhead Land?ll in Perry County, Alabama (EPA OCR File No. 01R-H-R4) Dear Ms. Simons: This Complaint is ?led pursuant to Title VI ofthe Civil Rights Act of 1964, 42 U.S.C. 2000d to 2000d-7, and 40 C.F.R. Pan 40 C.F.R. 7.35(b) provides: A recipient [of EPA ?nancial 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, national origin, or sex, or have the effect of defeating or substantially impairing 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 implementing regulations by reissuing and modifying, on September 201] and February 3, 2012 respectively, Solid Waste Disposal Facility Permit No. 53-03 authorizing Perry County Associates, LLC to construct and operate the Arrowhead Land?ll, a municipal solid waste land?ll in Perry County, Alabama which has the effect of adversely and disparater impacting African-American residents in the adjacent community. Complainants request that the EPA Of?ce of Civil Rights accept this Complaint and conduct an investigation to determine whether ADEM violated Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d to and 40 C.F.R. Pan 7. [fa violation is found and ADEM is unable to demonstrate a substantial, legitimate justi?cation for its action and to voluntarily implement a less discriminatory alternative that is practicable, Complainants petition EPA to initiate proceedings to deny, annul, suspend, or terminate EPA financial assistance to ADEM. era Tallahassee 9 Florida 32312-4208 Telephone 850-336-567! Facsimile 267-813-5848 up Email Web I. Title VI Background ?Frequently, discrimination results from policies and practices that are neutral on their face, but have the effect of discriminating.? Interim Guidance for Investigating Title Vi Administrative Complaints Challenging Permits (EPA, Feb. 5, 1998) (?Interim Guidance?) at 2 (footnote omitted); Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits 65 Fed. Reg. 3966?, 39680 (2000) Draft ?Faciallymeutral policies or practices that resalt in discriminatory effects violate Title VI regulations unless it is shown that they are justi?ed and that there is no less discriminatory alternative." interim Guidance at 2. A complete or properly pleaded complaint must (1) be in mitnig, signed, and provide an avenue for contacting the signatory phone number, address); (2) describe the alleged discriminatory act(s) that violates Title VI regulations i. e. an act that has the effect of discriminating on the basis of race, color, or national origin); (3) be ?led within i80 calendar days of the alleged act(s); and (4) identify the EPA ?nancial assistance recipient that took the alleged discriminatory act(s). interim Guidance at 6; Draft Guidance, 65 Fed. Reg. at 39672. In order to establish a primafacie case of adverse disparate impact, EPA must determine that a causal connection exists between the recipient?s facially neutral action or practice and the alleged impact; (2) the alleged impact is ?adverse;? and (3) the alleged adversity imposes a disparate impact on an individual or group protected under Title VI. Yerkwaod Landfill Complaint Decision Document, EPA OCR File No. 28R-99-R4 (July 1, 2003) at 3; New York City Envtl. JusticeAlliance v. Giuliani, 214 F.3d 65, 69 (2nd Cir. 2000); Draft Policy Papers Released for Public Comment: Title VI of the Civil Rights Act of 1964: Adversity and Compliance With Environmental Health-Based Thresholds, and Role of Complainants and Recipients in the Title VI Complaints and Resolution Process 78 Fed. Reg. 24739, 24741 (2013). ?If a preliminary ?nding of noncompliance has not been successfully rebutted and the disparate impact cannot successfully be mitigated, the recipient will have the opportunity to ?justify? the decision to issue the permit notwithstanding the disparate impact, based on the substantial, legitimate interests of the recipient.? interim Guidance at 11. See Drty?t Guidance, 65 Fed. Reg. at 3 9683. ?Merely demonstrating that the permit complies with applicable environmental regulations will not ordinarily be considered a substantial, legitimate justi?cation. Rather, there must be some articulable value to the recipient in the permitted activity.? Interim I On June 27, 2000, EPA published Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Pennits 65 Fed. Reg. 39667-3968? (2000). The Preamble to the Draft Guidance states that ?[o]nce the Draft Revised Guidance for Investigating Title VI Administrative Complaints is ?nal, it will replace the Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits (Interim Guidance) issued in February 1998.? 65 Fed. Reg. at 39650. The Dra? Guidance has never been made ?nal and consequently, the Interim Guidance issued in February 1998 has not been replaced. 2 Guidance at 11. justi?cation o?'ered will not be considered acceptable if it is shown that a less discriminatory alternative exists. if a less discriminatory alternative is practicable, then the recipient must implement it to avoid a ?nding of noncompliance with the regulations.? Id. See Draft Guidance, 65 Fed. Reg. at 39633. ?In the event that EPA ?nds discrimination in a recipient?s pennitting program, and the recipient is not able to come into compliance voluntarily, EPA is required by its Title VI regulations to initiate procedures to deny, annul, suspend, or terminate EPA funding.? Interim Guidance at 3 (footnotes omitted) (citing 4O C.F.R. 7.13003), also may use any other means authorized by law to obtain compliance, including referring the matter to the Department of Justice (DOJ) for litigation. In appropriate cases, may ?le suit seeking injunctive relie?? Id. II. Complainants person who believes that he or she or a speci?c class of persons has been discriminated against in violation of this part may ?le a complaint. The complaint may be ?led by an authorized representative.? 40 C.F.R. 2 The names, addresses and telephone numbers of the persons making this complaint are as follows: 2 The Dray? Guidance purports to establish more stringent standing requirements than are contained in 40 CPR. The former establishes the following standing requirements: A person who was allegedly discriminated against in violation of Title VI regulations; A person who is a member of a speci?c class of people that was allegedly discriminated against in violation of Title VI regulations; or A party that is authorized to represent a person or speci?c class of people who were allegedly discriminated against in violation of Title VI regulations. id, 65 Fed. Reg. at 39672. Notably, the Draft Guidance requires that a complainant be the victim of the a?eged discrimination or a member of the protected class discriminated against. The Draft Guidance omits the option in 40 C.F.R. 1120(a) that any person including a person who is not a member of a protected class who believes that a speci?c class of persons has been discriminated against in violation of 40 C.F.R. Part 7 may ?le a complaint. An agency construction of its regulations that is inconsistent with the plain language of those regulations is unlaw?il. Legal Envii. Assistance Found, Inc. v. US. Envii. Prat. Agency 276 F.3d 1253, 1263 (11th Cir. 2001); Sierra Club v. Johnson 436 F. 3d 1269, 1274 (I 1th Cir. 2006). 3 Many of the Complainants are A?iean?Arneiicans who live within one mile ofthe Arrowhead Land?ll and who believe that they have been discriminated against by ADEM in violation of Title VI and 40 C.F.R. Part 7. Figure 1. A few of the Complainants are members of the African- American race who, though not themselves discriminated against by ADEM, believe that A?ican? Amerieans as a class have been discriminated against by ADEM in violation of Title VI and 40 C.F.R. Part 7. In addition, several of the Complainants are not members of the African?American race who, though not themselves discriminated against by ADEM, believe that African?Americans have been discriminated against by ADEM in violation of Title V1 and 40 CPR. Part 7. The undersigned is the authorized representative of the Complainants. All contacts with the Complainants should be made through the undersigned or with the express permission of the undersigned. Recipient EPA awards grants on an annual basis to many state and local agencies that administer continuing environmental programs under statutes. As a condition of receiving funding under continuing environmental program grants, recipient agencies must comply with Title VI regulations, which are incorporated by reference into the grants. EPA's Title I regulations de?ne a ?[r]ecipient? as ?any state or its political subdivision, any instrumentality of a State or its political subdivision, any public or private agency, institution, organization, or other entity, or any person to which Federal ?nancial assistance is extended directly or through another recipient . . Title VI creates for recipients a nondiscrimination obligation that is contractual in nature in exchange for accepting Federal funding. Acceptance of EPA funding creates an obligation on the recipient to comply with the regulations for as long as any EPA funding is extended. Under amendments made to Title VI by the Civil Rights Restoration Act of 1987, a ?program? or ?activity? means all of the operations of a department, agency, special purpose district, or other instrumentah'ty of a state or of a local government, any part of which is extended Federal ?nancial assistance. Figure PROXIMITY OF AFFECTED AFRICAN-AMERICAN COMPLAINANTS TO ARROWHEAD LANDFILL Therefore, unless expressly exempted from Title VI by Federal statute, all programs and activities of a department or agency that receives EPA ?nals are subject to Title VI, including those programs and activities that are not EPA-Ended. For example, the issuance of permits by EPA recipients under solid waste programs administered pursuant to Subtitle of the Resource Conservation and Recovery Act (which historically have not been grant-funded by EPA), or the actions they take under programs that do not derive their authority from EPA statutes state environmental assessment requirements), are part of a program or activity covered by Title VI regulations if the recipient receives any funding from EPA. Interim Guidance at 2-3 (footnotes omitted). ADEM was a recipient of ?nancial assistance from EPA at the time of the alleged discriminatory acts. or example, EPA recently awarded grants to ADEM as shown in Exhibit A (EPA Grants to ADEM). IV. Discriminatory Acts The ?rst alleged discriminatory act is the reissuance (renewal) of Solid Waste Diaposal Facility Permit No. 53-03 by ADEM to Perry County Associates, LLC on September 27, 2011. Exhibit (Permit No. 53?03, Sept. 27', 2011). 3 The permit authorizes Perry County Associates, LLC to construct and operate the Arrowhead Land?ll, a municipal solid waste land?ll. Permit No. 53-03 authorizes the disposal of ?{n]onhazardous solid wastes, noninfectious putrescible wastes including but not limited to household garbage, commercial waste, industrial waste, construction and demolition debris, and other similar type materials? from thirty?three states. Id. The permit authorizes the disposal of 15,000 tons of waste per day the largest authorized waste disposal volume in Alabama. Figure 2. The authorized disposal area is 25 6. 151 acres. The facility is located in Perry County, Alabama at approximately Latitude 32.4115 North, Longitude 87.4675 West. Figure 3. The second alleged discriminatory act is the modi?cation of Permit No. 53-03 by ADEM on February 3, 2012. Exhibit (Permit No. 53-03, Feb. 3, 2012). The permit modi?cation authorizes Perry County Associates, LLC to expand the disposal area at the Arrowhead Land?ll by 169.179 acres 3 ?Generally, permit renewals should be treated and analyzed as if they were new facility permits, since permit renewal is, by de?nition, an occasion to review the overall operations of a permitted facility and make any necessary changes.? Interim Guidance at 4 ?Permit modi?cations that result in a net increase of pollution impacts, however, may provide a basis for an adverse disparate impact ?nding, and, accordingly, OCR will not reject or dismiss complaints associated with permit modi?cations without an examination of the circumstances to determine the nature of the mo di?cation.? Interim Guidance at 7 Figure 2 AUTHORIZED WASTE DISPOSAL VOLUMES AT ALABAMA LANDFILLS (TPD) Source: Permitted Solid Waste Land?lls in the State of Alabama (ADEM, June 29, 2011) {available a! l.pdf} Hilton Ridge Landfill Turkey Trot Land?ll Pine H?ieuI Sanitary Landfill Blacl?. Harrier Solid Haste Facility Stone?s Throtr Land?ll Highway 'r'll Land?ll I 'enrlia ES Stat Ftidge Landfill. Inc. Venlia ES Cedar Hill Land?ll. Inc. Blundidge Landfill LLI: Arroillead Land?ll City ol Decatur-Morgan Bounty Sanitary Land?ll Montgomery Land?ll Chastang Sanitary Land?ll Huntsville Land?ll Seven Mile Post Fload Land?ll Salem Haste Disposal Centel Morris Farrn Sanitary Land?ll Florence Municipal Solid Haste Landfill Green Mountain Management. LLC Solid Ilullaste Facility Jellerson Bounty Landfill No. 2 de?erson County Land?ll Ho. 1 Eastern Area Land?ll New Georgia Land?ll Scottshoro Land?ll [2in of Dothan Sanitary Landfill Timberlands Sanitary Land?ll Sand Valley Land?ll Cullman Environmental Vaste Management Center Collee County Sanitary Landfill County Regional Land?ll Three Corners Regional Land?ll Magnolia Sanitary Land?ll H1 Figure 3 LOCATION OF THE ARROWHEAD LANDFILL PERRY COUNTY, ALABAMA Arrowhead Land?lea Land?? Ca 3" ?51 '55. 9 =1 0 .0 V. Timeliness 40 C.F.R. requires that a complaint alleging discrimination under a program or activity receiving EPA ?nancial assistance must be ?led within 180 days after the alleged discriminatory act. The reissuancc of Solid Waste Disposal Facility Permith. 53-03 to Perry County Associates, LLC occurred on September 27', 2011. A complaint dated January 3, 2012 was received by EPA 101 days after the permit was reissued, i. e. on January 6, 2012. Exhibit (Letter from Rafael1 DeLeori to David A. Ladder dated June 14, 2012 Re: Acceptance of Administrative Complaints The modi?cation of Solid Waste Disposal Facility Permit No. 53-03 was granted to Perry County Associates, LLC on February 3, 2012. A complaint dated February 16, 2012 was received by EPA 18 days after the permit was modi?ed, i. a, on February 21, 2012. id. On September 26, 2012, EPA dismissed the above-referenced complaints without prejudice to re?ling ?within 60 days following termination or conclusion of" litigation styled Ethel L. Abrahams, et al'. v. Services, LLC No. No. (S.D. Ala.) and Ethel L. Abrahams, et at'. v. PhiU?Con Services, LLC andPhitt'tps Jordan, inc. Adv. Free. No. 10?00075 (Bankr. SD. Ala). Exhibit (Letter ?'am Rafael DeLean to David A. Ladder dated September 26. .2012 Re: Dismissal without prejudice of Administrative Complaint The foregoing litigation was terminated on April 16, 2013. Exhibit (Ethel L. Abraham, et at. v. Plaid-Can Services, LLC, No. (SD. Ala. Apr. 16, 2013), Doc. 44). Accordingly, re?ling of this complaint is timely if received by EPA on or before June 15, 2013. VI. Litigation As previously noted by EPA, [i]n 2010, certain residents of Perry County ?led a civil action in the U.S. District Court for the Southern District of Alabama, Northern Division, against Phill?Con Services, LLC, the operator of the Arrowhead Land?ll, to enforce an emission standard or limitation under the Clean Air Act, 42 U.S.C. and to enforce a standard, regulation, requirement, or prohibition under the Solid Waste Disposal Act, 42 U.S.C. 6901-6992k. Also in 2010, certain residents of Perry County ?led a civil action in state court against Phill-Con and Phillips 85 Jordan, inc. (a contractor at the land?ll), asserting state law claims including negligence, wantonness, nuisance, and trespass resulting from the construction and operation of the land?ll. In addition to other remedies, the Plaintiffs seek a permanent injunction that the land?ll ceases operating in such a manner as to cause certain impacts. Both of these actions were subsequently removed to the US. Bankruptcy County for the Southern District of Alabama, Selma Division, where the litigation has been consolidated. OCR understands that the litigation is still ongoing. 10 Exhibit (Letter from Rafael DeLecm to David .4. Ladder dated September 26, .2012 Re: Dismissal without prejudice of Administrative Complaint at 1. 0n the basis of these ?ndings, EPA dismissed the January 3, 201 1 and February 16, 2012 complaints without prejudice pending results of the litigation. OCR may choose not to proceed with a complaint investigation if the allegations in the complaint were actually litigated and substantively decided by a Federal court. For example, if a Federal court reviewed evidence presented by both parties and issued a decision that stated the allegations of discrimination were not true, OCR may choose not to investigate allegations in the complaint that deal with those same issues. In addition, if a state court reviewed evidence presented by both parties and issued a decision, then OCR may consider the outcome of the court?s proceedings to determine if they inform decision making process. Generally, OCR may choose to investigate if the complaint raises issues that were not actually litigated or substantively decided by a Federal court, or if it raises unique and important legal or policy issues. Dray?: Guidance, 65 Fed. Reg. at 39673. On April 16, 2013, the foregoing litigation was dismissed with prejudice On motion of the parties. Exhibit (Ethel L. Abrahams, et ai. v. Plaid-Con Services, LLC No. 2: (SD. Ala. Apr. 16, 2013), Doc. 44). The Court did not review any evidence, make any findings of fact, or otherwise decide any substantive issues. Accordingly, the new terminated litigation does not present an impediment to EPA investigation and disposition of this C0mplah1t.5 5 The permittee of the Arrowhead Land?ll, Perry County Associates, LLC., was not a party to Ethel L. Abrahams, ei ai. v. Services, LLC No. No. (SD. Ala.) or Ethel L. Abrahams, et ai. v. Pbiil-Caa Services, LLC and Phillips d: Jordan, Inc. Adv. Free. No. 10-00075 (Bankr. S.D. Ala). Perry County Associates, LLC was a ?debtor? in banluuptcy. In re Perry Conan; Associates, LLC No. 10-00277 (Bankr. SD. Ala. ?led Jan. 26, 2010). The only asset possessed by Perry County Associates, LLC was Permit No. 53?03. The land?ll itself was owned by Perry-Uniontown Ventures i, LLC, which was also a ?debtor? in bankruptcy. In re Perry-Uniaatonm Features I, LLC No. 10-00276 (Bankr. SD. Ala. ?led Jan. 26, 2010). Perry-Uniontown Ventures 1, LLC was the sole member of Perry County Associates, LLC. Phill?Con Services, LLC and Phillips and Jordan, Inc. ceased doing work at the land?ll in October 2011. The Arrowhead Land?ll is now owned by Howling Coyote, LLC, a who lly?owned subsidiary of Green Group Holdings, LLC. Exhibit (Letter from T. Shane Lovett to David A. Ladder dated November 5, 2012 An application for permit transfer from Perry COunty Associates, LLC to Howling Coyote, LLC was submitted to ADEM on or about January 4, 2012. Exhibit (Applicatianfar Transfer ofPermit dated December 27, 201' 2 noti?cation must be submitted to and approved by the Department prior to any proposed transfer ?'om one person 11 VII. Impacts The impacts resulting horn the activities authorized by Permit No. 53-03 include the following: A. The frequent emission of odors from the land?ll that are unpleasant to persons and that cause lessened human food and water intake, interference with sleep, upset appetite, irritation of the upper respiratory tract (nose and throat) and eyes, headaches, dizziness, nausea, and vomiting among many of the Complainants; and interference with outdoor activities and the enjoyment of property of many of the Complainants. See e. g. Exhibit J1 (2010 Odor Complaints), Exhibit J2 (2011 Odor Complaints), Exhibit J3 (2012 Odor Complaints), and Exhibit J4 (2013 Odor Complaints). B. Increased populations of ?ies in and around the homes of many of the Complainants that are bothersome and that may be carriers of dozens of infectious viruses, bacteria, and parasites. Exhibit (2013 Fly Complaints). C. increased populations of birds around the homes of many of the Complainants that deposit droppings and that may be carriers of dozens of infectious viruses, bacteria, and parasites. Exhibit L1 (Video), Exhibit L2 (2011 Bird Complaints), Exhibit L3 (2012 Bird Complaints), and Exhibit L4 (2013 Bird Complaints). D. Increased noise from operation of heavy machinery( e. g. steel wheel eompactor, bulldozer, excavator, off-road haul truck, small farm tractor, clamshell buckets, railcars) 24-hours per day, "ii-days per week causing headaches and interference with sleep, conversations, television and radio listening and other activities within and without the homes of many of the Complainants. Exhibit M1 (2010 Noise Complaints), Exhibit M2 (2011 Noise Complaints), Exhibit M3 (2012 Noise Complaints), and Exhibit M4 (2013 Noise Complaints). E. The frequent emission of fugitive dust from the land?ll that causes particulate deposition on personal and real preperty of many of the Complainants, including homes, porches, vehicles, laundry, and plantings. See e. Exhibit N1 (2010 Dust Complaints), Exhibit N2 (2011 Dust Complaints), Exhibit N3 (2012 Dust Complaints), and Exhibit N4 (2010 Dust Video). or company to another or name change of any permitted facility.? Ala. Admin. Code R. 335-13? There is no evidence in the ADEM eFile system that ADEM ever approved the transfer of Permit No. 53-03 to Howling Coyote, LLC. Perry County Associates, LLC was dissolved on October 31, 2012. Exhibit I (Articles of Dissolution dated October I I, 2012 If the permit transfer has not been approved by ADEM, the Arrowhead Land?ll is being operated by a party that does not have a permit. 12 F. Decreased property values of many of the Complainants. See e. Exhibit 01 (Af?davit of Diane Hite), Exhibit 02 (Cameron, T.A. ?Directional Heterogeneity in Distance Pro?les in Hedonic Preperty Value Models,? Journal of Environmental Economics anar Management 51(1) (2006): 26-45), Exhibit 03 (Guntermann, KL. ?Sanitary Land?lls, Stigma and Industrial Land Values,? Journal of Real Estate Research 10(5) (1995): 531-542), Exhibit 04 (Hirshfeld, S. et a1. ?Assessing the True Cost of Land?lls,? Waste Management and Research 10 (1992): 471-484), Exhibit 05 (Hits, D. Random Utility Model of Environmental Equity,? Growth and Change 31(4) (2000): 40-53), Exhibit 06 (Hite, D. ?Information and Bargaining in Markets for Environmental Quality,? Land Economics 74(3) (1993): 303-316), Exhibit 07 (Hite, D., et ?Property Value Impacts of an Environmental Disamenity: The Case of Land?lls,? Journal of Real Estate Finance and Economics 22 (2001): 185-202), Exhibit 08 (Kinnaman, T.C. Land?ll Closure and Housing Values,? Contemporary Economic Policy 27(3) (2009): 380-389), Exhibit 09 (Lim, et a1. ?Does size really matter? Land?ll scale impacts on property values,? Applied Economics Letters 14 (2007): 9-723), Exhibit 010 (Nelson, A.C., et a1. ?Price eilects of land?lls on house values,? Land Economics (1992)), Exhibit 011 (Ready, R.C., ?Do Land?lls Always Depress Nearby Property Values??,? Journal of Real Estate Research 32(3) (2010): 321-339), Exhibit 012 (Reichert, A.K., et al. ?The Impact of Land?lls on Residential Property Values,? Journal ofReal Estate Research 7(3) (1992): 297-314), Exhibit 013 (Wilson, S.E., ?Evaluating the potential impact of a proposed land?ll,? Appraisal Journal 77 (2009): and Exhibit 014 (Spector, K., et a1. ?Review of Current Property Valuation Literature,? Industrial Economics, Inc. (1999)). See also Exhibit P1 (EPA Listening Session Invitation), Exhibit P2 (EPA Listening Session Video, June 15, 2011), and Exhibit P3 (ADEM Public Hearing on Permit Renewal, July 14, 2011)6 and Exhibit P4 (Nov 2012-May 2013 Written Complaints). ADEM Authority EPA guidance provides that will accept for processing only those Title VT complaints that include at least an allegation of a disparate impact concerning the types of impacts that are relevant under the recipient?s permitting program.? interim Guidance at 8; Draft Guidance, 65 Fed. Reg. at 39628. ?In determining the nature of stressors chemicals, noise, odor) and impacts to be considered, OCR would expect to determine which stressors and impacts are within the recipient?s authority to consider, as de?ned by applicable laws and regulations.? Draft Guidance, 65 Fed. Reg. at 39678. See lot, 65 Fed. Reg. at 39670, 39671. Complainants 5 In the complaints ?led on January 6, 2012 and February 21, 2012, Complainants also alleged ?the ?equent tracking of dirt and other solids ?'om the land?ll onto County Road 1 where through tra?ic causes the dirt and other solids to become airborne particulates resulting in particulate deposition on personal and real property of many of the Complainants, including homes, porches, vehicles, laundry, and plantings. See Exhibit (Mud in Re ad Sign)? Subsequently, the Arrowhead Land?ll relocated its entrance to Tayloe Road off U.S. Highway 82. Exhibit (Letter from William F. Hodges to Scott Story dated October 30, 2W2 This relocation has eliminated tracking of dirt on County Road 1. 13 submit that both the Interim Guidance and Draft Guidance are wrong as a matter of law on this point. 40 C.F.R. 7.30 provides that persOn shall. . . be subjected to discrimination under any program or activity receiving EPA assistance on the basis of race . . In addition, 40 C.F.R. 7350:) provides that 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 . . To establish discrimination under these provisions, EPA must ?nd that ??rst, a facially neutral policy casts an effect on a statutorily-protected group; second, the effect is adverse; and ?nally, the effect is disproportionate.? Sandoval v. Hagan, 197 F.3d 484, 508 (11th Cir. 1999) (citing Elston v. Taliadega County 30'. of Educ. 99'? F.2d 1394, 1407 (11th Cir.1993)), revs 'd on other grounds, Alexander v. Sandovai 532 US. 275 (2001). In Sandoval, the Director of the Alabama Department of Public Safety had imposed an English-only language requirement for giving driver?s license examinations. Sandoval sued contending that the requirement violated Title VI of the Civil Rights Act of 1964. The Court held that Sandoval was correct the English?only language requirement resulted in discrimination based on national origin because ?the inability to drive a car adversely affects individuals in the form of lost economic opportunities, social services, and other quality of life pursuits.? id. Although these adverse effects were not within the authority of the Department to consider, the Court recognized them as su?icient to establish disproportionate adverse effects on a group protected by Title VI. As discussed below, ADEM has express authority under the Alabama Administrative Code to regulate land?ll practices that may cause odor and disease vectors. It also has express authority to establish bu?br zones to protect against adverse aesthetic impacts noise, odor, and fugitive dust). ADEM does not, however, have express authority to address reductions in property values that o?en occur as a consequence of land?ll operations. Nevertheless, the permits granted by ADEM which authorize the construction and operation of the Arrowhead Land?ll have had the disproportionate adverse effect of Subjecting persons of a protected race to reductions in the value of their property. This adverse economic effect is cognizable under Title VI, notwithstanding contrary pronouncements in the Interim Guidance and Drcg?i Guidance. To hold otherwise would allow state legislatures and state administrative agencies to de?ne what is and is not actionable discrimination under Title VI and would ?ustrate the purpose of Title VI. A. Odors ADEM has ample authority to regulate and control odor emissions from land?lls. For example, Ala. Admin. Code R. provides: Owners or operators of all must ensure that the units do not violate any applicable requirements developed under a State Implementation Plan (SIP) approved or promulgated by the Administrator pursuant to Section 1 10 of the Clean Air Act, as amended. 14 Ala. Admin. Code R. 335?3-1- and 3356?1-33, discussed below, have been approved by the Administrator of the U.S. Environmental Protection Agency as part of the State Implementation Plan for Alabama under section 110 of the Clean Air Act, 42 U.S.C. 7410. See 40 CPR. 52.50, 52.53. 1 Ala. Admin. Code R. provides: No person shall permit or cause air pollution, as de?ned in Rule of this Chapter by the discharge of any air contaminant for which no ambient air quality standards have been set under Rule ?Air Pollution? means ?the presence in the outdoor atmosphere of one or more air contaminants in such quantities and duration as are, or tend to be, injurious to human health or welfare, animal or plant life, or property, or would interfere with the enjoyment of life or property . . Ala. Admin. Code R. (emphasis added). ?Air Contaminant? means ?any solid, liquid, or gaseous matter, any odor, or any combination thereof, from whatever source.? Ala. Admin. Code R. (emphasis added). ?Odor? means ?smells or aromas which are unpleasant to persons or which tend to lessen human food and water intake, interfere with sleep, upset appetite, produce irritation of the upper respiratory tract, or cause or nausea, or which by their inherent chemical or physical nature or method or processing are, or may be, detrimental or dangerous to health. Odor and smell are used interchangeably herein.? Ala. Admin. Code R. Ala. Admin. Code R. 335-134?220) provides: Daily Operation. All waste shall be covered as follows: 1. A minimum of six inches of compacted earth or other alternative cover material that includes but is not limited to foams, or waste products, and is approved by the Department shall be added at the conclusion of each day?s operation or as otherwise approved by the Department to control disease vectors, ?res, odors, blowing litter, and scavenging. (Emphasis added).E Permit No. 53-03 provides that ?[t]his land?ll may be subject to ADEM Admin. Code Division 3 . . . and the Federal Clean Air Act.? Exhibit (Permit No. 53-03, Sept. 27', 2011) at Section Exhibit (Permit No. 53-03, Feb. 3, 2012) at Section VI. The Arrowhead Lant??ill Permit Renewal Application and Arrowhead Landfill Permit Expansion Application provide that ?[tlhis facility will comply with all Clean Air Act requirements.? Exhibit R1 at 2-33; Exhibit 51 at 2?33. 3 Permit No. 53-03 grants a variance from the requirement to use compacted earth as daily cover and authorizes the use of alternative cover materials (petroleum contaminated soil, automotive shredder residue, tarps and posi-sheli). Exhibit (Permit No. 53-03, Sept. 15 Ala. Admin. Code R. provides: All waste shall be con?ned to as small an area as possible and spread to a depth not exceeding two feet prior to compaction, and such compaction shall be accomplished on a face slope not to exceed 4 to or as otherwise approved by the Department.? 2?7, 2011) at Section 111., Exhibit (Permit No. 53-03, Feb. 3, 2012) at Section 111., H. Alternative cover materials may be inferior to compacted earth cover in the control of odors. In any case, the use of alternative cover materials is contrary to Alabama law. Ala. Code 22-27? - 2(23) de?nes a ?municipal solid waste land? as a ?sanitary land?ll.? Ala. Code ?22-27-2(32) de?nes ?sanitary land?ll? as controlled area of land upon which solid waste is deposited and is compacted and covered with compacted earth each day as deposited, with no on?site burning of wastes, and so located, contoured, and drained that it will not constitute a source of water pollution as determined by the department.? (Emphasis added). ADEM is authorized to ?adopt such rules and regulations as may be needed to meet the requirements of this article" and to ?[a]dopt rules to implement this article." Ala. Code 22?27?7' and 22-27-121; 1). Ala. Code Title 22, Article 1 provides for no exceptions or variances from the requirement to use compacted earth as daily cover. Therefore, that language in Ala. Admin. Code R. 33 which purports to permit ADEM to authorize the use of alternative cover materials is unlaw?rl and void. See Ex parte Cresnvooal Hosp. Nursing Home. Inc. 670 So.2d 45, 4? (Ala. 1995) (?It is settled law that the provisions of a statute will prevail in any case in which there is a conflict between the statute and a state agency regulation?); Ea: parts Jones Mfg. Co. 589 So.2d 203, 210 (Ala. 1991) (?An administrative agency cannot usurp legislative powers or contravene a statute. A regulation Cannot subvert or enlarge upon statutory policy?); Je?eison County v. Alabama Criminal Justice Information Cir. Comm ?n 620 So.2d 651, 658 (Ala. 1993) (an administrative agency cannot ?claim implied powers that exceed andfor con?ict with those express powers contained in its enabling legislation?). The variance in Permit No. 53-03, Section 111., H. is also UI?anlli and void. Permit No. currently authorizes six inches of compacted earth, petroleum contaminated soil, and automotive shredder residue as daily cover. Exhibit (Permit No. 53?03, Sept. 27, 2011) at Section 111., Exhibit (Permit No. 53?03, Feb. 3, 2012) at Section 111., H. Greater depths of cover material are authorized and may be necessary to effectively control odors. Permit No. 53-03 currently authorizes the same minimum cover ?equency as provided in ADEM rules, i.e. daily cover. Exhibit (Permit No. 53-03, Sept. 27, 2011) at Section 111., Exhibit (Permit No. 53?03, Feb. 3, 2012) at Section 111., H. See Ala. Admin. Code R. 335?13- More frequent application of cover material is authorized and may be necessary to effectively control odors- 9 Permit No. 53-03 requires that ?[a]ll waste shall be con?ned to an area as small as possible . . .. Arrowhead Land?ll is granted a variance to operate two working one for the placement of MSWiConstruction and Demolition waste, and one for the placement of coal ash waste (See Section X., A). Each of the two working faces should still be con?ned to as small on 16 Ala. Admin. Code R. provides: Buffer zones, screening and other aesthetic control measures. Buffer zones around the perimeter of the land?ll unit shall be a minimum of 100 feet in width measured in a horizontal plane. No disposal or storage practices for waste shall take place in the bullet zone. Roads, access control measures, earth storage, and buildings may be placed in the bu?er zone. Finally, Ala. Admin. Code R. provides: Notwithstanding this Rule, additional requirements for operating and maintaining a may be imposed by the Department, as deemed necessary, to comply with the Act and this Division. The foregoing authorize ADEM to require that land?ll operations not result in o?ensive odors. In addition, the foregoing authorize ADEM to require the use of compacted earth as cover, to require that the depth of cover be more than six inches, to require that waste be covered area as possible-? (Emphasis added). Exhibit (Permit No. 53-03, Sept. 27, 2011) at Section 111., Exhibit (Permit No. 53~03, Feb. 3, 2012) at Section 111., The Arrowhead Lanayill Permit Renewal Applicaiion and Arrowhead Landfill Permit? Expansion Application indicate that the maximum size of each of two working faces shall be 200 feet by 200 feet when waste receipts equal er exceed 1,500 tons per day and 150 feet by 100 feet when waste receipts are less than 1,500 tons per day. Exhibit R1 at 2-28; Exhibit 81 at 2?28. Reducing the size of the working face is authorized and would reduce the solid waste exposed to the air and thus odor emissions. '0 Permit No. 53-03 contains no speci?c requirements for buffer zones. However, Permit No. 53-03 provides that the permittee shall operate and maintain the disposal facility consistent with ADEM Admin. Code Division 13. Exhibit (Permit No. 53?03, Sept. 27, 2011) at Section IL, Exhibit (Permit No. 53-03, Feb. 3, 2012) at Section II., A. Thus, the minimum buffer zone for all aesthetic impacts is 100 feet. Ala. Admin. Code R. 335-13-4?. The Arrowhead Lanaj?ill Permit Renewal Application and Arrowhead Landfill Pemii! Expansion Application indicate that 100 foot minimum waste disposal buffer zone has been established around the perimeter of the site.? Exhibit R1 at 2-3; Exhibit SI at 2?3. Bu??er zones for land?ll odor impacts can be scienti?cally determined. See e. g. Exhibit T1 (Cooper, David C-, Atmospheric Dispersion Modeling for Odor Ba?er Disiances??om Florida Landfills University of Central Florida (Report ii 16207042, June 2009), Exhibit T2 (Figueroa, V.K., Determining Florida Land/ill Odor Biyj?er Distances Using Aermod University of Central Florida (Masters Thesis, Summer 2008), and Exhibit T3 (Tart, J., An Evaluation ofParlicalaie M'aiier, Hydrogen Sab?ide, and Non~Meihane Organic ompoands ?oor the Arrowhead Lanaj'ill (Aug. 2012)). Permit No. 53-03 provides that ?[t]he Department may enhance or reduce any requirements for operating and maintaining the land?ll as deemed necessary by the Land Division." Exhibit (Permit No. 53-03, Sept. 27, 2011) at Section 111., Exhibit (Permit No. 53-03, Feb. 3, 2012) at Section 111., T. 17 more frequently than once each day, to prohibit leachate recirculation, ?2 and to ?irther restrict the size of the working face. Moreover, the foregoing authorize ADEM to establish a larger buffer zone for aesthetic purposes, including odor reduction. B. Flies and birds ADEM has ample authority to regulate and control disease vectors such as flies and birds. For example, Ala. Admin. Code R. 335-13-4- 22(1) provides: Daily Operation. All waste shall be covered as follows: I. A minimum of six inches of compacted earth or other alternative cover material that includes but is not limited to foams, or waste products, and is approved by the Department shall be added at the conclusion of each day?s operation or as otherwise approved in: the Department to control disease vectors ?res, odors, blowing litter, and scavenging. '3 3 '2 Permit No. 53-03 currently authorizes leachate recirculation and states that leachate distribution should be at a rate and manner that does not cause odor. Exhibit (Permit No. 53- 03, Sept. 27, 2011) at Section Exhibit (Permit No. 53?03, Feb. 3, 2012) at Section VII . Recirculation accelerates organic decomposition and generates more off?gases. EPA ?recognizes that potential operational problems associated with leachate recirculation, such as increase in leachate production, clogging of the leachate collection system, buildup of hydraulic head within the unit, increase in air emissions and odor problems, and increase in potential of leachate pollutant releases due to drift andlor run-off, may result in adverse impacts on human health and the environment.? 56 Fed. Reg. at 51056 (1991). See Solid Waste Disposal Facility Criteria Technical Manual Nov. 1993) at 3.10-3 (?In some cases, {leachate} discharge points have been a source of 13 Permit No. 53-03 provides that ?{t]he Permittee shall provide for vector control as required by ADEM Admin. Code Division 13.? Exhibit (Permit No. 53u03, Sept. 27, 2011) at Section 11., Exhibit (Permit No. 53-03, Feb. 3, 2012) at Section 11-, Q. The Arrowhead Lantp?ill Permit Renewal Application and Arrowhead Landfill Permit Expansion Application state that ?[v]ectors shall be controlled by compaction and the use of daily cover, or approved ADC materials.? Exhibit R1 at 2-32; Exhibit SI at 2-32. Permit No. 53?03 currently authorizes the use of alternative cover materials (petroleum contaminated soil, automotive shredder residue, tarps and posi-shell). Exhibit (Permit No. 53-03, Sept. 27', 2011) at Section 111., Exhibit (Permit No. 53-03, Feb. 3, 2012) at Section 111., H. Such alternatives are not authorized under Alabama law. See supra 11. 8. Moreover, requiring compacted earth cover is an authorized and recognized method for controlling disease vectors. Solid Waste Disposal Facility Criteria Technical Manual Nov. 1993) at 3.4.3. Permit No. 53-03 currently authorizes six inches of compacted earth, petroleum 18 (Emphasis added). Ala. Admin. Code R. 335-134?229) provides: Measures shall be taken to prevent the breeding or accumulation of disease vectors. 1f determined neces5ary by the Department or the State Health Department, additional disease vector control measures shall be conducted. '4 Ala. Admin. Code R. 335-13?4? 22(1)(b) provides: All waste shall be coo?ned to as small an area as possible and spread to a depth not exceeding two feet prior to compaction, and such compaction shall be accomplished on a face slope not to exceed 4 to or as otherwise approved by the Department. 15 Finally, Ala. Admin. Code R. provides: contaminated soil, and automotive shredder residue as daily cover. Exhibit (Permit No. 53-03, Sept. 27, 2011) at Section 111., Exhibit (Permit No. 53?03, Feb. 3, 2012) at Section 111., H. Increasing cover thickness is an authorized and recognized method for controlling disease vectors. Solid Waste Disposal Facility Criteria Technical Manual Nov. 1993) at 3.4.3. Permit No. 53-03 currently authorizes the minimum cover frequency provided in ADEM rules, i.e. daily cover. Exhibit (Permit No. 53-03, Sept. 2011) at Section 111., Exhibit (Permit No. 53?03, Feb. 3, 20I2) at Section 111., H. See Ala. Admin. Code R. 335-13?4- .22(1)(a)l . More ?'equent application of cover material is an authorized and recognized method for controlling disease vectors. Solid Waste Disposal Facility Criteria Technical Manual (EPA530-R-93-017, Nov. 1993) at 3.4.3. EPA has recognized that ?if cover material requirements prove insuf?cient to ensure vector control, this criterion would require that other steps be taken by the owner or operator to ensure such control.? 53 Fed. Reg. at 3333 6. ?[O]ther vector control alternatives may be required. These alternatives could include: reducing the size of the working face; other operational modi?cations increasing cover thickness, changing cover type, density, placement frequency, and grading); repellents, insecticides or rodenticides; composting or processing of organic wastes prior to diaposal; and predatory or reproductive control of insect, bird, and animal pOpulations.? Solid Waste Disposal Facility Criteria Technical Manual Nov. 1993) at 3.4.3. 15 See supra 11. 9. EPA has recognized that reducing the size of the working face may be appropriate to control disease vectors. Solid Waste Disposal Facility Criteria Technical Manual Nov. 1993) at 3.4.3. 19 Notwithstanding this Rule, additional requirements for operating and maintaining a may be imposed by the Department, as deemed necessary, to comply with the Act and this Division. The foregoing authorize ADEM to require that land?ll Operations incorporate controls on disease vectors, such as ?ies and birds, in addition to daily cover. C. Noise ADEM has ample authority to regulate and control noise impacts. For example, Ala. Admin. Code R. 335?13?4?. 13(2)(f) provides: Buffer zenes, screening and other aesthetic control measures. Buffer zones around the perimeter of the land?ll unit shall be a minimum of 100 feet in width measured in a horizontal plane. No diaposal or storage practices for waste shall take place in the buffer zone. Roads, access control measures, earth storage, and buildings may be placed in the butter zone. In addition, Ala. Admin. Code R. 335?13?4? 22(3)(b) provides: Notwithstanding this Rule, additional requirements for operating and maintaining a may be imposed by the Department, as deemed necessary, to comply with the Act and this Division. The foregoing authorize ADEM to require buffer zones exceeding 100 feet where necessary to control adverse impacts on aesthetics from land?ll operation. Such aesthetics are not limited to visual aesthetics. They include auditory aesthetics. Thus, ADEM is authorized to require an increased bu?er zone to reduce disturbing noise at the Complainants? residences ?5 See supra 11. ll. Permit No. 53-03 contains no specific requirements for buffer zones. However, Permit No. 53-03 provides that the permittee shall operate and maintain the disposal facility consistent with ADEM Admin. Code Division 13. Exhibit (Permit No. 53?03, Sept. 27, 2011} at Section 11., Exhibit (Permit No. 53-03, Feb. 3, 2012) at Section IL, A. Thus, the minimum buffer zone for all aesthetic impacts is 100 feet. Ala. Admin. Code R. The Arrowhead Permit Renew! Application and Arrowhead Lam?? Permit Expansion Application indicate that 100 foot minimum waste disposal buffer zone has been established around the perimeter of the site.? Exhibit R1 at 2?3; Exhibit SI at 2?3. Buffer zones for land?ll noise impacts can be scienti?cally determined- See e. g. Exhibit U1 (ARM Group Inc, Noise Impact Assessment Resource Recovery Land?ll (ARM Project 041 17', Mar. 2006)) and Exhibit U2 (Barton 8.: Loguidice, P.C., cast}! of rankiin Solid Waste ManagememAarhority Proposed Lana?ii Expansion Noise Assessment (Sep. 2008)). '8 See supra 11. ll. 20 D. Fugitive Dust ADEM has ample authority to regulate and control ?igitive dust emissions from land?lls. For example, Ala. Admin. Code R. 33 provides: Owners or operators of all must ensure that the units do not violate any applicable requirements developed under a State Implementation Plan (SIP) approved or promulgated by the Administrator pursuant to Section 1 10 of the Clean Air Act, as amended. Included in the EPA?approved State Implementation Plan is Ala. Admin. Code R. 33 5-34-32. 40 CPR. Rule as it appears in the approved State Implementation Plan, provides: Fugitive Dust and Fugitive Emissions (I) No Person shall cause, su??er, allow, or permit any materials to be handled, transported, or stored; or a building, its appurtenancesused, constructed, altered, repaired, or demolished without taking reasonable precautions to prevent particulate matter ?'om becoming airborne. Such reasonable precautions shall include, but not be limited to, the following: Use, where possible, of water or chemicals for control of dust in the demolition of existing buildings or structures, construction operations, the grading or reads, or the clearing of land; Application of aSphalt, oil, water, or suitable chemicals on dirt roads, materials stock piles, and other surfaces which create airborne dust problems; Installation and use of hoods, fans, and fabric ?lters (or other suitable control devices) to enclose and vent the handling of dusty materials. Adequate containment methods shall be employed during sandblasting or other similar operations. (2) Visible Emissions Restrictions Beyond Lot Line. No person shall cause or permit the discharge of visible ?igitive dust emissions beyond the lot line of the property on which the emissions originate. Although ?igitive dust rule was declared to be unconstitutional by the Alabama Supreme Court in Ross Neely Express, Inc. v. Alabama Department of Environmental Management, 437 So.2d 82 (Ala. 1983), Alabama has neither repealed the rule nor sought or obtained EPA approval of a revision of the State Implementation Plan. Accordingly, the rule continues to be included in the ?applicable implementation plan? under the Clean Air Act. See Gen. Motors Corp. v. United States 496 US 530, 540 (1990) (?There can be little or no doubt that the existing SIP remains the ?applicable implementation plan" even after the State has 21 submitted a propUSed revision?); Safe Air for Everyone v. United States Envti. Prat. Agency 425 F.3d 1096, 1105 (9th Cir. 2007) state may not unilaterally alter the legal commitments of its SIP once EPA approves the plan?). in addition, Ala. Admin. Code R. provides: Bu??er zones, screening and other aesthetic control measures. Bu?'er zones around the perimeter of the land?ll unit shall be a minimum of 100 feet in width measured in a horizontal plane. No disposal or storage practices for waste shall take place in the buffer zone. Roads, access control measures, earth storage, and buildings may be placed in the louder zone. 19 In addition, Ala. Admin. Code R. provides: Notwithstanding this Rule, additional requirements for operating and maintaining a may be imposed by the Department, as deemed necessary, to comply with the Act and this Division. 2? The foregoing rules authorize ADEM to require controls on fugitive dust emissions and bu??er zones exceeding 100 feet where necessary to control adverse impacts on aesthetics from land?ll operation. Thus, ADEM is authorized to require reductions in the adverse impacts of fugitive dust at the Complainants? residences. E. Property values As explained above, Title VI and its implementing regulations at 40 (1F .R. Part 7' do not limit the scope of cognizable discrimination to those adverse effects within the authority of the ?nancial assistance recipient to regulate. Sandoval v. Hagan 197' F.3d 484, 508 (11th Cir. 1999), revs ?d on other grounds, Alexander v. Sandoval 532 US. 275 (2001). In Sandoval, the Court held that the Alabama Department of Transportation?s English-only language requirement for ?9 Permit No. 53-03 contains no speci?c requirements for bu??er zones. However, Permit No. 53~03 prowdes that the permittee shall operate and maintain the diaposal facility consistent with ADEM Admin. Code Division 13. Exhibit (Permit No. 53-03, Sept. 2011) at Section 11., Exhibit {Permit No. 53?03, Feb. 3, 2012) at Section 11., A. Thus, the minimum buffer zone for all aesthetic impacts is 100 feet. Ala. Admin. Code R. 33 5?13?4-. The Arrowhead Land?ll Permit Renenai Appiicaiion and Arrowhead Land?ll Pennii Expansion Application indicate that 100 foot minimum waste diSposaI bu?'er zone has been established around the perimeter of the site." Exhibit R1 at 2-3; Exhibit SI at 2-3. Buffer zones to protect against adverse aesthetic impacts, such as from ?igitive dust, are authorized. It may be possible to model these impacts. See Exhibit T3 (Tarr, ., An Evaluation of Particulate Matter; Hydrogen Sul?de, and Non-Methane Organic Compounds from the Arrowhead (Aug. 2012)). 2" See srgora n. 11. 22 motor vehicle license testing resulted in discrimination based on national origin in violation of Title VI because its adversely affected individuals in the form of lost economic opportunities, social services, and other quality of life pursuits. Similarly, the construction and operation of the Arrowhead Land?ll, with all its associated odor, noise, birds, ?ies, and fugitive dust, has an adverse effect on the property values of Complainants and other members of the A??ican? American race in the community. ADEM cannot escape its obligation to ensure that its actions do not have discriminatory effects merely because it does not have authority to regulate or consider property values. ADEM does have authority to regulate land?ll construction and operation (including bu?'er zones) which directly impact property values. Disparate Impacts [compares] the percentage of African Americans in [the] affected population with the percentage of A?'ican Americans in the service area of [the] land?ll and in the State to determine whether African Americans near the land?ll[] [are] disproportionately affected by potential impacts.? Yerknood Loncp?ili Complaint Decision Document EPA OCR File No. 99-R4 at 5. See Investigative Report for Title VI Administrative Complaint File No. 28R-99-R4 (YerknoodLonaj?ili Complaint) (June 2003) at 10. The adverse impacts desoribed above have fallen and continue to fall disparater upon members of the A?ican?American race. This is illustrated by the 2010 census block data included in Figure 4. The impacted census blocks are 87 to 100 percent A?ican?American. The designated service area for the Arrowhead Land?ll is thirty-three states. Exhibit (Permit No. 53-03, Sept. 27, 2011) and Exhibit (Permit No. 53-03, Feb. 3, 2012). The predominant race in these states is White. Figures 5 and 6. The percentage of African? Americaus among the total population in the designated thirty?three state service area is only 15.1%. The percentage of A??ican-Arnericans among the total population in Alabama is 26%. Inasmuch as the percentage of A??ican?Americans impacted by the Arrowhead Land?ll far exceeds the percentage of African-Americans in the service area and State of Alabama, the alleged impacts are ?disparate? impacts. See Yeriuvood Land?ll ComplainiDec-ision Document EPA OCR File No. at 5. 23 Figure 4 AFRICAN-AMERICAN POPULATION IN 2010 CENSUS BLOCKS SURROUNDING THE ARROWHEAD LANDFILL Source: htlp? .usa.govll Legend: Data Classes 0.: r: a 7.11 - HE 75.1 - 110,-: 53.1 - ?5.13 - 55.1 . - 911 - 95.0 - 95.1 - um: 24 Figure 5 LARGEST RACIAL AND ETHNIC GROUPS IN SERVICE AREA STATES Source: Now Scoli Vermont New Hampshim Massachusetts Rhode island Connection." New Jersey Delaware District of I White Columbia I Black Hispanic Asian Native Amerin Multiracial Other mxico Figure 6 PERCENT AFRICAN -AMERICAN AND WHITE POPULATIONS IN SERVICE AREA STATES Source: and Exhibits and 25 IX. Justi?cation and Less Discriminatory Alternatives ?If the recipient can neither rebut the initial ?nding of disparate impact nor develop an acceptable mitigation plan, then the recipient may seek to demonstrate that it has a substantial, legitimate interest that justi?es the decision to proceed with the permit notwithstanding the disparate impact.? Interim Guidance at 4. ?[T]here must be some articulable value to the recipient in the permitted activity.? Id. at 11. ?The justi?cation must be necessary to meet ?a legitimate, important goal integral to [the recipient?s] mission.? Investigative Report for Title WAdministrative Complaint File No. at 60. ?Even where a substantial, legitimate justi?cation is proffered, OCR will need to consider whether it can be shown that there is an alternative that would satisfy the stated interest while eliminating or mitigating the disparate impact.? Interim Guidance at 4. ?Facially?neutral policies or practices that result in discriminatory effects violate Title VI regulations unless it is shown that they are justi?ed and that there is no less discriminatory alternative.? Id. at 2 (footnote omitted). erer demonstrating that the permit complies with applicable environmental regulations will not ordinarily be considered a substantial, legitimate justi?cation.? Id. at 11. And, a less discriminatory alternative is practicable, then the recipient must implement it to avoid a ?nding of noncompliance with the regulations." Id. ADEM has not articulated a value to ADEM or the State of Alabama in the permitting of the Arrowhead Land?ll- It is not likely that ADEM or the State of Alabama has a substantial, legitimate interest in the permitting of the Arrowhead Land?ll. Less discriminatory and practicable alternatives to the Arrowhead Land?ll are available for the disposal of municipal solid waste generated in Perry County. The BFl-Selma Transfer Station is located at 1478 Ala. Hwy. 41 in Selma, Alabama (Latitude 32.34773 North, Longitude 87.00067 West), approximately 31miles east-southeast of Uniontown. ?Marion and unincorporated Perry County?s use of BFI-Selma assures them access to a facility that will be able to accommodate the changing MSW needs of its residents throughout the life of this plan. BFl-Selma is expected to remain an active disposal option to the City of Marion and unincorporated Perry County through 2014.? Exhibit (I 0- Year Solid Waste Management Plan [for] Perri: County, Alabama (Nov. 2004)) at 22,. ?[Gjiven their market share and ?nancial resources, BFI is not likely to run out of space to dispose of waste collected at BFl?Selma during the life of this plan." Id. at 38. There appear to be no more than a few residences within one mile of the BFI-Selrna Transfer Station. The Pine Ridge Land?ll is located at 520 Murphy Road in Meridian, Mississippi (Latitude 32.3 767?? North, Longitude 88.61435 West), approximately miles west of Uniontown. ?The City of Uniontown send[s] waste generated within its jurisdiction and the Town of Faunsdale to the Pine Ridge Land?ll. Pine Ridge is a Subtitle facility located approximately 75 miles west of Uniontown in Meridian [Mississippi] . . Id. ?Pine Ridge?s Land?ll Operations Manager estimated that the facility has enough remaining capacity to dispose of waste for at least the next 30 years." Id. at 23. There appear to be a number of residences within one mile of the Pine 26 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?American population surrounding the Pine Ridge Land?ll is signi?cantly less than that surrounding the Arrowhead Landfill. The Choctaw County Regional Land?ll is located at 1106 Fire Tower Road in Butler, Alabama (Latitude 32.04541 North, Longitude 88.27016 West), approximately 52 miles southwest of Uniontown. The Choctaw County Regional Land?ll is authorized to accept solid waste ?om all of Alabama. The Choctaw County Regional Land?ll is located in an unpopulated area. X. Assurances and Defenses With each application for EPA ?nancial assistance, ADEM is required to provide assurances that it ?will comply with the requirements of? 40 C.F.R. Part 7 implementing Title VT. 40 C.F.R. See Standard Form 4243 (?As the duly authorized representative of the applicant, I certify that the applicant: Will comply with all Federal statutes relating to nondiscrimination. These include but are not limited to: Title VI of the Civil Rights Act of 1964 (PL. 88?3 52) which prohibits discrimination on the basis of race, color or national origin; . . As mentioned above, 40 C.F.R. 7.35(b) prohibits ADEM from using criteria or methods of administering its pro gram(s) in a manner which has the effect of subjecting individuals to discrimination on the basis of race. In this case, as in others, ADEM alleges that it grants permits in accordance with applicable laws and regulations without regard to the racial composition of any impacted communities. See Exhibit (Latterfrom Lance LeFlear to Rafael DeLean dated July 19, 2012). This allegation is, in essence, a claim that permitting actions do not intentionailjz have adverse impacts on racial minorities. While this may be so, it fails to recognize obligation under Title VI to avoid unintentional discriminatory effects. ?Frequently, discrimination results 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 2i Effective January 23, 2013, EPA is requiring that grant recipients (including states) agree to the following grant condition: In accepting this assistance agreement, the recipient acknowledges it has an af?rmative obligation to implement effective Title VI compliance programs and ensure that its actions do not involve discriminatory treatment and do not have discriminatory effects even when facially neutral. The recipient must be prepared to demonstrate to EPA that such compliance pro grams exist and are being implemented or to otherwise demonstrate how it is meeting its Title VI obligations. Exhibit (Civil Rights Obligations 27 Title VI regulations unless it is shown that they are justi?ed and that there is no less discriminatory alternative.? Interim Guidance at 2 (footnote emitted). 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 differently than other races. See Exhibit (Letter from Lance LeFleur to Rafael DeLeon dated July 19, 201' 2). This allegation ignores the fact that members of the A??ican-American race are disparately affected by the Arrowhead Land?ll, notwithstanding alleged compliance with the applicable criteria. Exhibit (Drty?t Title VI Guidance Documents Questions and Answers at 4.22 ADEM has also been known to allege that it does not make land?ll siting decisions and that its pennitting of a land?ll cannot cause adverse impacts on Complainants. See Exhibit (Summation of Comments Received and Responseuto-Comments, Proposed Arrowhead L?l?ld?? Renewal, Pemnit 53-03 (Sept. 27, 20] l) alleged discriminatory impact would come as a result of the actual siting of the land?ll near an area whose residents are protected by Title VI. ADEM, however, does not site land?lls; that responsibility lies with the local host This position ignores several facts. First, the permit granted by ADEM to Perry County Associates, LLC is to construct and operate a landfill at a speci?c site Sections 21, 22, 27, and 28, Township 17 North, Range 6 East in Perry County. Exhibit (Permit No. 53-03, Sept. 27, 2011) and Exhibit (Permit No. 53-03, Feb. 3, 2012). But for the ADEM permit authorizing construction and operation of the land?ll at this speci?c site, adverse impacts to Complainants might not result. Second, ADEM determined that the land?ll site is compliant with ?Land?ll Unit Siting Standards? at Ala. Admin. Code R. 335-13-4? 01. But for determination that the land?ll site is compliant with the siting standards, the land?ll might not have been constructed at the site and might not result in adverse irnpacts to Complainants. Finally, ADEM has imposed or failed to impOSe, permit conditions on the operations of the land?ll that have allowed odors, leachate recirculation, minimal cover depth, minimal cover ?equency, alternative daily cover, disease vectors (birds and ?ies), working face areas, noise, 22 Dra?? Title VI Guidance Documents Questions and Answers states: 13. Does compliance with existing Federal and state environmental regulations constitute compliance with Title A recipient?s Title VI obligation exists independent ??om Federal or state environmental laws governing its permitting program. Recipients may have policies and practices that are compliant with Federal or state regulations but that have discriminatory e?ects (such as an adverse disparate irnpact) on certain populations based on race, color, or national origin, and are therefore noncompliant with Title VI. Exhibit (Dra?? Title VI Guidance Documents Questions and Answers at 4. 28 nighttime and weekend operations, fugitive dust, minimal bu?'er zones and property devaluation. Operation of the land?ll under these conditions causes adverse impacts to the Complainants. EM Based upon the foregoing, Complainants request that the U.S. Environmental Protection Agency - Of?ce of Civil Rights accept this complaint and conduct an investigation to determine whether ADEM violated Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000(1 to 2000d?7?, and 40 C.F.R. Part 7 in the issuance and modi?cation of Solid Waste Disposal Facility Permit No. 53-03 on September 27, 2011 and February 3, 2012, respectively. If a violation is found and ADEM is unable to demonstrate a substantial, legitimate justi?cation for its action and to voluntarily implement a less discriminatory alternative that is practicable, Complainants further petition the EPA to initiate proceedings to deny, annul, Suspend, or terminate EPA ?nancial assistance to ADEM, and after the conclusion of those proceedings, deny, annul, or terminate EPA ?nancial assistance to ADEM. Sincerely, (0W David A. Ludder Attorney for Complainants Enclosures: Compact Disc 1 of 5 (Exhibits A thru L4) Compact Disc 2 of 5 (Exhibits M1 thru 014) Compact Disc 3 of 5 (Exhibits P1 thru R1) Compact Disc 4 of 5 (Exhibits R2 thru SI) Compact Disc 5 of 5 (Exhibits SZ thru Z) 29