ML20140F329
| ML20140F329 | |
| Person / Time | |
|---|---|
| Issue date: | 06/09/1997 |
| From: | Bangart R NRC OFFICE OF STATE PROGRAMS (OSP) |
| To: | Hankins G TEXAS, UNIV. OF, HOUSTON, TX |
| References | |
| NUDOCS 9706130043 | |
| Download: ML20140F329 (66) | |
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'JUN 0 91997 Grover G. Hankins, Esq.
Attorney for Complainants Director, Environmental Juctice Clinic l
Thurgood Marshall School of Law Texas Southern University 3100 Cleburne Avenue Houston, TX 77004
Dear Mr. Hankins:
This is to acknowledge receipt of your April 28,1997, letter to Vandy L. Miller, former Director, Office of Small Business and Civil Rights, which was received on May 16, l
1997, concerning discriminatory practices of the Texas Low-Level Radioactive Waste l
l Disposal Authority, Texas Natural Resource Conservation Commission, Maine Advisory l
l Commisson On Radioactive Waste, and Vermont Low-Level Radioactive Waste Authority.
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A response to yc,e comments is under consideration. A reply will be forwarded to you.
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Sincerely, Odgini i
RCHARD L RT Richard L. Bangart, Director Office of State Programs l
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l June 9, 1997 Grover G. Hankins, Esq.
Attorney for Complainants Director, Environmental Justice Clinic Thurgood Marshall School of Law Texas Southern University 3100 Cleburne Avenue Houston, TX 77004
Dear Mr. Hankins:
This is to acknowledge receipt of your April 28,1997, letter to Vandy L. Miller, former Director, Office of Small Business and Civil Rights, which was received on May 16, 1997, concerning discriminatory practices of the Texas Low-Level Radioactive Waste l
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Disposal Authority, Texas Natural Resource Conservation Commission, Maine Advisory Commission On Radioactive Waste, and Vermont Low-Level Radioactive Waste Authority.
A response to your comments is under consideration. A reply will be forwarded to you, l
Sincerely, l( g\\(
ASA Al Richard L. Bangart, Director Office of State Programs I
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RGUTINGt ADMINISTRATIVE COMPLAINT CONCERNING DISCRIMINATORY Callan PRACTICES OF THE TEXAS LOW-LEVEL RADIOACTIVE WASTE Jordan DISPOSAL AUTHORITY, TEXAS NATURAL RESOURCE Thompson t
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ENVIRONMENTAL JUSTICE CLINIC Thurgood MarshaD School of Law l
Texas Southern University 3100 Cleburne Avenue l
Houston,TX 77004 i
April 28,1997 Honorable Corliss S. Moody
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Director, Office of Economic Impact and Diversity United States Department of Energy 1000 Independence Avenue S.W.
l Washington, D.C. 20585 Honorable Vandy L. Miller Director, Office of Small Business and Civil Rignts United States Nuclear Regulatory Commission Washington D.C. 20555 Honorable Daniel J. Rondeau Director, Office of Civil Rights United States Environmental Protection Agency 2
401 M Street S.W.
Washington D.C. 20460 BY CERTIFIED MAIL Re: Administrative Complaint Concerning Discriminatory Practices of the Texas Low Level Radioactive Waste Disposal Authority, Texas Natural Resource Conservation Commission, Maine Advisory Commission On Radioactive Waste, and Vermont Low Level Radioactive Waste Authority.
Dear Directors Moody,
Miller and Rondeau:
On behalf of residents in Hudspeth County, Texas, Shve Sierra Blanca, Sierra Blanca Legal Defense Fund and the El Paso Regional group of the Rio Grande Chapter of the Sierra Club l
(hereafter collectively referred to as " Complainants"), we hereby file this administrative complaint pursuant to Title VI of the Civil Rights Act of 1964 (hereafter " Title VI"), international agreements l
and various other federal legislation against the State of Texas, acting through the Texas Natural Resource Conservation Commission (hereafter the "TNRCC") and the Texas 1.ow-12 vel Radioactive EDO -- G970366
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l Waste Disposal Authority (hereafter the "WDA"); the State of Maine, acting through the Maine l
Advisory Commission On Radioactive Waste (hereafter " Maine"); and the State of Vermont, acting l
l through the Vermont Low-Level Radioactive Waste Authority (hereafter " Vermont") (collectively l
referred to as " Respondents").
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INTRODUCTION
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Communities in fludspeth County, Texas, including but not limited to Sierra Blanca, were targeted in 1992 by Merco Joint Venture (hereafter "Merco") of Oklahoma City, Oklahoma, to become the home of one of the world's largest sewage sludge dumps. The sit has now been targeted i
by the State of Texas under Chapter 402 of the Texas Health and Safety Code to be developed as a 1
vast low-level radioactive disposal dump under the Texas-Vermont-Maine Nuclear Compact.
1 Consequently, Complainants are seeking redress from the federal government and the States of l
Complainants allege that the WDA and the TNRCC discriminate against People of Color and low-income individuals in Hudspeth County by ignoring their environmental protection and public health needs in violation of Title VI.' Specifically, Complainants allege that the WDA and the TNRCC have engaged in discriminatory conduct by concealing infonnation, circumventing state, federal and international laws, ignoring environmental protection regulations and responsibilities and participating in a conspiracy to deny minorities, including People of Color and low-income i
individuals, equal protection of the law.
' 42 U.S.C. I 2000d.
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Since 1992, Complainants have been exposed to toxic, hazardous and noxious substances emanating from Merco's sewage sludge dump. The sludge in question may contain in excess of 60,000 toxic substances and chemical compounds that are subject to inhalation, skin exposure and l
l ingestion by Hudspeth County residents. The Texas site is now being used because federal legislation forced the State of New York to cease dumping sludge offshore due to the bacterial contamination of fish and the increase of toxic metals in the ocean.
The Texas Iegislature has proposed that the propeny adjacent to Merco's be used as a dump for low-level radioactive waste produced in Texas, Vermont and Maine. Funhermore, the proposed site is approximately 16 miles from the Rio Grande River (the U.S.-Mexico border) and is in i
apparent violation ofinternational law, treaties and agreements.
The United States Department of Energy (hereafter the " DOE") and the DOE's Office of Economic Impact and Diversity, the United States Nuclear Regulatory Commission (hereafter the "NRC") and the NRC's Office of Small Business and Civil Rights, and the United States j
l Environmental Protection Agency (hereafter the " EPA") and the EPA's Office of Civil Rights have jurisdiction over this matter because the Respondents oversee the planning, request, negotiation, application, receipt, deployment and administration of federal funds and technical support from the DOE, NRC, and EPA for public health and environmental protection purposes, including exposure to radioactive waste materials and isotopes. The WDA gets consid:rable technical suppon from the DOE and the TNRCC receives considertble funding from the EPA.
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RESPONDENTS A. Texas Low Level Radioactive Waste Disposal Authority i
l The WDA was established for the primary purpose of siting, securing, constructing and l
t operating a radioactive waste dump in the State of Texas, but with final authority vested in the NRC since Texas is an Agreement state.
l The State of Texas became an Agreement state with the United States Atomic Energy
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l Commission effective on March 1,1963, pursuant to section 274 of the Atomic Energy Act of 1954, I
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and subsequently the NRC as amended effective March 24,1982. The Articles of Agreement (I IX) i between Texas and the NRC indicate that the NRC shall retain certain oversight authority and
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responsibility with respect to regulation as specifically provided for in Articles II(paragraphs A and B), III, IV, V, VI, \\
2, e iII and IX.
The WDA has refused to officially acknowledge the fact that citizens oppose the radioactive waste dump. The WDA has treated People of Color and low income residents of Sierra Blanca and l
Hudspeth County who are concerned about the Texas Low-Level Radioactive Waste Dump in a k disparate manner by ignoring their requests to consigr environmental jeica and critical technical i
issue. on *.he siting and permitting process. Funhermore, the WDA has ignored repeated requests c-
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by People of Color for a formal environmental impact assesment (hereafter "EIA") that falls within t
l the standards set by the NRC, which includes consideration of environmental justice and socioeconomics. One example of disparate treatment is the refusal of the WDA to consider possible i
sites in other Texas counties. There is ovenvhelnung opposition in many Texas counties to a nuclear dump and these counties are typically more populated and have fewer People of Color compared to 4
Hudspeth County.
Many Sierra Blanca residents are actively opposed to the radioactive waste dump; but, it has been difficult for them ' be heard by Texas and federal officials since People or Color communities 4
and low-income populations tend to be politically and economically less powerful to fight the siting of unwanted environmental hazards in their communities.
B. Texas Natural Resource Conservation Commission Prior to September 1,1993, there were two primary governmental agencies responsible for environmental protection services in Texas, the Texas Air Control Board (hereafter the "TACB")
and the Texas Water Commission (hereafter the "TWC"). The two bodies were separate entities with their own boards or commissioners and policies, but both received federal funds from the EPA.
l In order to facilitate their administrative operations, both the TACB and the TWC divided Texas into regions or districts (sub-sections) over which they maintained direct control. The TWC also previously underwent a consolidation in March 1992 with the Solid Wastes Division of the Texas Depanment of Health and is now in the TNRCC's Office of Waste Management as the Municipal Solid Waste Division to regulate municipal landfills.
1 On September 1,1993, the two bodies merged and became the TNRCC For example, the TACB became the Office of Air Quality within the TNRCC. The TNRCC changed the division of regions in Texas from 12 (TACB) and 14 (TWC) to 15, but it, like its predecessors, still maintains direct control over these subsections since the TNRCC's 15 regional managers are appointed by the highest officials in Austin's Central Office and follow strict guidance received directly and routinely oration from the TNRCC's central office executives in Austin. For all intents and purpose:
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of the TNRCC has remained unchanged to that of the TACB and the TWC and, while some of the substantive content of this administrative charge commenced prior to the creation of the TNRCC, the TNRCC, as the primary existing environmental protection body, is cited as the responsible agency.
The State I2gislature specifically authodzed creation of the TNRCC in 1991 to consolidate and improve environmental protection services in Texas, but, Complainants believe the TNRCC is operating in a similar, if not identical, discriminatory manner as the TACB and the TWC did prior to the merger. The TNRCC has continued to administer basically the same policies, mies and programs the Complainants allege are discriminatory. Complainants further allege that there has been essentially no improvement or changes in the degree of discrimination since the inception of the TNRCC. Indeed, the majority of the TNRCC's personnel in Austin and its yield offices are staffed by the old TACB and TWC personnel.
The TNRCC has treated Sierra Blanca and Hudspeth County residents who are concerned i
about the Texas Low-level Radioactive Waste Dump,in the same,if not identical, disparate manner 4
i that the WDA treated them on the siting and permitting process. Amazingly, this was the same treatment received by Sierra Blanca and Htidspeth County residents during the Merco registration.
Complainants allege the same complaint against the TNRCC previously asserted against the WDA.
l C. The Vermont Low Level Radioactive Waste Authority and The Maine Advisory Commission on Radioactive Waste l
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Vermont was created for the primary purpose of managing The State of Vermont's 4
radioactive waste, and subsequently to enter into a compact with Texas and Maine for the siting and 6
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l management of a radioactive waste dump. Vermont is also an Agreement state with the NRC.
Maine was created for the primary purpose of managing the State of Maine's radioactive waste, and subsequently to enter into a compact with Texas and Vermont for the siting and l
l management of a radioactive waste dump. Maine is also an Agreement state with the NRC.
l III. Nature of Allegations Complainants allege that the two Texas Respondents discriminate against People of Color residents of Texas, Sierra Blanca and Hudspeth County by ignoring their environmental protection and public heahh needs in violation of Title VI and its implementing regulations. Complainants allege that the Texas Respondents have engaged in concerted and systematic discriminatory conduct through the concealment of information, circumvention of laws, indifference to environmental protection and responsibilities, and participation in a conspiracy to deny minorities, including People of Color and low-income citizens, equal protection of the law. Respondents must comply with Title VI if they are to continue receiving federal funds fron. the DOE, NRC, and EPA.
A. The State of Texas and Waste Industry are Creating Large Commercial Dumps Near Sierra Blanca Neighborhoods Populated by People of Color People of Color communities in Sierra Blanca and Hudspeth County were successfully targeted in 1992 to become the home of one of the world's largest sewage sludge dumps operated l
l by Merco, and is now targeted by the State of Texas and the WDA for a vast low-level radioactive l
disposal dump district. Consequently, the combined effect of pollution from existing and future environmental hazards bears a disproportionate impact on People of Color communities and low-1 7
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i income citizens in both Sierra Bhnca and Hudspeth County.
1 Complainants are comprised of concerned citizens, many of whom are People of Color and low income individuals residing within Sierra Blanca and Hudspeth County, Texas. Tha esidents have been adversely impacted, continue to be adversely impacted and will be adversely impacted by this pollution in the future from the low-level radioactive waste dump under the jurisdiction of the TNRCC and WDA, along with the existing Merco sewage sludge dump near Sierra Blanca and located within Hudspeth County.2 Furthermore, exposure to radioactive, toxic, hazardous and noxious chemicals and wastes associated with the operation of the below cited waste disposal facilities will create adverse impacts to the people of Hudspeth County.
l Complainants further allege that the Sierra Blanca area is being tumed into a viral dumping
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ground for unwanted commercial waste and forthcoming hazardous nuclear waste. The controversy
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i over dumping hazardous waste in Texas panicularly concems residents of rural areas since this may encourage other poll a io target Sierra Blanca. Large industrial companies are dumping the waste generated in metropolitan areas in rural communities, particularly along the border region. Border residents understandably are concerned about the threat posed to their environment by such dumping.
- 1. Merco Joint Venture's Sewage Sludge Dump Near Sierra Blanca, Texas Complainants living in affected neighborhoods in Hudspeth County near Merco's sewage sludge dump have been adversely exposed, since 1992, to toxic, hazardous and noxious substances j
through a variety of pathways, inter alla, breathing contaminated air, skin exposure from sludge
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2 The Merco sewage sludge ciump is!!s with!n the jurisdiction of the TNRCC.
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particle fallout and vapors, ingesting contaminated meat and bsh, and eating other contaminated foods. Merco's sludge is shipped to Texas from New York by train.
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Complainants att 3e that sewage sludge and its associated dust particles may contain more
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l than 60,000 toxic substances and chemical compounds and scientists are developing 700 to 1,000
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new chemicals every year. This type of sludge is defm' ed as a " viscous, semi-solid mixture of l
bacteria-and virus-laden organic matter, toxic metals, synthetic organic chemicals, and settled solids
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removed from domestic and industrial waste water at a sewage treatment plant."3 According to l
l information compiled by Stephen lester from researchers at Cornell University and the American Society of Civil Engineers, this type of sludge characteristically contains numerous toxic substances, l
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including but not limited to: polychlorinated biphenyl's (PCBs); chlorinated pesticides (DDT, i
l dieldrin, aldrin, endrin, chlordane, heptachlor, lindane, mirex, kepone, 2,4, 5-T, 2,4-D, and others);
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chlorinated compounds (such as dioxins, furans, etc.); polynuclear aromatic hydrocarbons; heavy l
metals (arsenic, cadmium, chromium, lead, mercury, etc.); infectious organisms (bacteria, viruses, l
protozoa parasitic worms, fungi); and miscellaneous items such as asbestos, petroleum products and industrial solvents.'
l A 1994 investigation by the U.S. General Accounting Office discovered that "the full extent of the radioactive contamination of sewage sludge, ash and related by-products nationwide is unknown."5 Much of the radioactive material is flushed down the drain by hospitals, businesses and sGareth Jones, et at, Harper Collins Dictionary of Environmental Science (1992) p. 372.
Stephen, Lester, Semge Slucye... A Dangerous Fertih2er, Everyone's Beckyard October 1992 at 9.
Citizens Clearinghouse for Hazardous Waste (1992). See also John Stauber and Sheldon Rampton, Toxic Sludge is Good For You: Wes, Damn Lies and The Public Relations industry (1995) (hereafter *Stauber").
l lim Wells, et al., Nuclear Regulation: Anion Needed to Control Radioactive Contamination at Sewage Treatment Monts, GAO Reports B255099, June 23,1994. See also, Steuber, at 104.
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decontamination laundries, a practice that has contaminated at least nine sewage plants in the last decade.'
Complainants have reasonable concems about lead pollution from a sewage sludge dump considering the volumes disposed at the Merco site. Dr. Stanford Tackett, a chemist and expert on lead contamination, expressed that the lead content in sludge may be worse than leaded gasoline.
The use of sewage sludge as a fertilizer poses a more significant threat to the land than did the use ofleaded gasoline. All sewage sludge contained elevated concentrations oflead due to the nature of the treatment process.... Lead is a highly toxic cumulative poison. Lead poisoning can cause severe mental retardation or death. It is known that lead interferes with the blood-forming process, vitamin D metabolism, kidney function, and is " safe" only if you are willing to accept a lowered IQ for the young children living in the sludge area.'
The land spreading program for sewage sludge is a scam of enormous proponions, driven mainly by money. The high sounding justifications such as " sludge is'a beneficial resource" and l
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" sludge is just as safe as manure" are clever excuses designed to fool the public.... In truth, only i
one to three percent of the sludge is useful to plants. The other 97 to 99 percent is contaminated waste that should not be spread where people live.... Land spreading d sewage sludge is not a l
tme " disposal" method, but rather serves only to transfer the pilutants in the sludge from the treatment plant to the soil, air and ground water of the disposal site.'
- Id.
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' Stanford L Tackett. 'The Myth of Sewage Sludge Safety," Speech delivered at the Municipal Sewage Sludge Conference ( May 21,1994). See alm, Stsuber, at 108 09.
s Stanford L. Tackett, The Sewage Sludge Scam, TheGazette (Indiana, PA) October 2,1994. See also, Stauber, at 109.
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I Complainants believe that Sierra Blanca was targeted for New York City sludge dumping because of the highly toxic chemical characteristics and dangerous infectious microbes found in the i
sludge. New York City sludge had been dumped into the ocean prior to 1991. In 1985, the EPA i
found that New York's ocean dumping site,12 miles offshore, suffered heavy degradation, including l
L bacterial contamination of shellfish, elevated levels of toxic metals, and accumulation of metals and toxic chemicals in fish. Following federal legislation in 1987, New York was forced to close the 12-mile dump site and subsequently began dumping sludge approximately 106-miles offshore. Shortly thereafter, fisherman close to the 106-mile site began to complain of decreased catches.
l Consequently, Congress put a halt to all ocean dumping in June 1991 by passing the Ocean Dumping Reform Act in 1988, which provides fines of up to S500,000 per day for those who fail to comply.
When small towns in Oklahoma and the Oklahoma State Legislature rejected the sludge project, 9
New York City's campaign focused its attention on an altemate site near Sierra Blanca. One reason i
for the difficulty obtaining a suitable site for the New York City sludge was that the sludge is described as " untreated" and contains a tremendous amount of chemical pollutants. Sources cited by Stauber indicate that the main problem with New Y.;rk City's sludge may stem from an estimated 2,000 unregulated companies discharging industrial waste into its sewers. Apparently, the New York City Depanment of Environmental Protection does not employ any method to determine how many such companies actually exist.' Sewage treatment is compounded by the fact that half of New York City's 14 treatment plants were built in the 1930's, and only 11 meet new sewage treatment standards.
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'Stauber, at 113-19.
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The fecal coliform bacteria in the New York City sludge is significant. EPA tests of Merco sludge at the Sierra Blanca site in August 1994 revealed 35 times the safe level.'8 Residents have noted that the sludge sometimes has a dominant chemical smell and smells less like hum- :ewage.
The risks from microbial contamination in the sludge may be more difficult to assess than that of chemicals, pesticides, acids, heavy metals, and radioactivity.
Present day science cannot comprehensively or adequately evaluate the health threat from the human disease pathogens inhabiting sewage sludge. One reason is the natural ability of mutating microbes to withstand antibiotics, thereby increasing concerns over newly emerging diseases such as the ebo:a virus, mad cow disease, killer e-coli and hanta virus. In 1993, University of Arizona researchers published a peer-reviewed study on the hazards of pathogenic microbes in land-disposed sewage sludge. The study found that significant numbers of dangerous human disease organisms infect even treated sewage sludge. Consequently, the study concluded that "no assessment of the risks associated with the land application u 3ewage sludge can ever be considered to be complete when dealing with microorganisms.""
Complainants raise health concerns over the sludge dump because sludge pathogens can move through many environmental pathways and gravely compound the increased disproportionate environmental hazards from the Texas Low-level Radioactive Waste Dump nearby. The environmental pathways for sludge pathogen dispersal are, inter alla, contact with sludge, evaporation and inhalation, wind blown dust particles transporting sludge particulate matter, "Id.
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contaminated groundwater, contamination of rodents burrowing in sludge, uptake through the roots of crops, and runoff after heavy rainfalls.
In summary, Cm.plainants emphasize that the microbes present in sewage sludge include i
different kinds of viruses, protozoa, fungi, and intestinal worms. Many of these pathogens cause i
l diseases that sicken, cripple and kill humans including salmonella, shigella, campylobacter, e-coli.
l enterovimses (which cause paralysis, menmgitis, fever, respiratory illness, diarrhea and encephalitis), giardia, cryptosporidium, roundworm, hookworm and tapeworm.
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. 2. Sierra Blanca: Targetedfor The Texas Low-Level Radioactive Waste Dump l
I The proposed Texas Low-Level Radioactive Waste Dump Site is adjacent to property purchased for the existing Merco sewage sludge disposal dump. The nuclear waste dump is scheduled to open in 1998. Its original purpose was to receive all of the so-called low-level radioactive waste generated in Texas.
This radioactive waste will consist overwhelmingly (over 90%) of the byproducts of the nuclear power industry, excluding spent fuel, transuranic waste and uranium mill tailings. Included in the same " low-level" category is a small percentage of radioactive waste generated by medical and l
research institutions.
Complainants allege that the WDA, along with other Texas officials, have attempted to artificially describe both kinds oflow-level radioactive waste, nuclear power plant waste and medical waste, similar in radioactive characteristics and radiation levels. The NRC uses a low level radioactive waste category that allows certain highly radioactive and long-lived nuclear reactor waste to be included as a low-level waste, which may be discriminatory if this classification scheme is 13
created to permit the dumping of this dangerous nuclear waste in People of Color and low-income communities like Sierra Blanca and Hudspeth County. The result is that highly radioactive and long-lived nuclear waste is included in the same low-level waste category as the generally short-lived wastes from medical treatment, diagnosis, and from some types of scientific research.
Nuclear power plant waste contains dangerous concentrations of the same isotopes found in high-level radioactive waste, including: plutonium 239 and plutonium-38, tritium, cesium-137, and strontium-90. Complainants insist that this fact be considered. This means that the vast majority of radioactive medical waste (waste that is radioactive for less than 8 months) is thrown in with nuclear power plant reactor waste that will be hazardous for hundreds of thousands of years.
Medical waste from diagnosis and treatment shipped in one year usually gives off a fraction of one curie of radiation.32 More than 90 percent of Texas' annual output of radioactive waste is considered low level.
When utilities decommission and dismantle these nuclear reactors, their share of the total volume will approach 99 percent. This is important considering that the low-level waste dump site near Sierra Blanca is no longerjust for Texas, nuclear waste from Maine and Vermont is also scheduled to be dumped there. Furthermore, both states have aging nuclear power plants. The Maine Yankee nuclear power plant is due to be decommissioned in 2008 and the Vermont Yankee nuclear power plant will be decommissioned in 2012.
B. Disparate Pollution Impacts on People of Color Populations: Disproportionate Percentage of Hispanic Residents in Two Hudspeth County Census Tracts Compared One curie is the measurement used to show how much radioactive energy is being emitted. One curie is equal to 37 billion radioactive emissions per second. On the other hand. nuclear reactors generate more than 200,0C0 curies in "Iow-level" waste every year.
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l to Average Percentage of Hispanics in Texas Supports the Sierra Blanca Site as Environmental Inequity The pertinent question for the Title VI complaint is whether the percentage of Hispanics in the Hudspeth County and Sierra Blanca census tracts are sufficiently disproportionate when compared to the aver re percentage of Hispanics in statewide census tracts. Hudspeth County has l
only two census tracts listed in the 1990 Census, #9501 and #9502. The state's total Hispanic population in 1990 was 4,339,900 out of a total Texas population of 16,986,510. Accordingly, the j
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Texas Hispanic population equaled 25.55 percent of the Texas population as compared with a 60.7 percent white population (10,310,812).
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According to 1990 census data, Hudspeth County is predominately low-income and Hispanic.
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Hudspeth County has a disproponionate percentage of an Hispanic population compared to the i
statewide average for Texas. Hudspeth County's numbers include 66.4 percent Hispanic,33.5 percent white and 0.1 percent other People of Color. People of Color represent 66.5 percent of Hudspeth County's population and that number is projected to reach 74 percent by the year 2000.
Moreover, Hispanics are highly disproponiona e in tracts #9501 and #9502 as compared to the Texas average for Hispanics. Since the average perceuage of Hispanics in Texas is 25.55 percent, this means tracts #9501 at 69.03 percent and #9502 at 54.64 percent contain 2.7x (270%)
and 2.1x (210%) more Hispanics respectively than the statewid. average. Hudspeth County's l
Hispanic population is 2.6 times or 260% higher than the.ctatewide average confirming that l
Hudspeth County is disproponionately populated by Hispanics. Graph A (see appendix) reflects the highly disproponionate representation of Hispanics in Hudspeth County. Graph B (see appendix) reflects census tracts #9501 and #9502, two of the closest ranch and residential areas to the proposed Texas Low-Level Radioactive Waste Dump site.
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l Sierra Blanca's population in 1990 was 892 persons with 58.7 percent Hispanic and 39.2 percent. white. People of Color equal 61.7 percent and 0.1 percent other. Sierra Blanca is representative of Hudspeth County since the Hispanic population constitutes nearly 6",.ccent or more in Sierra Blanca and Hudspeth County as a whole.
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C. Low-Income Population Characteristics of Sierra Blanca and Hudspeth County in West Texas Hudspeth County is one of the poorest rural regions of Texas. Poverty serves to highlight the targeting campaign to use poor mral regions, including the Texas-Mexico border areas as People of Color sites with the least resistance, to prey upon for dumping of hazardous waste such as nuclear and other undesirable materials. On that basis, some Texas elected officials have decided to oppose the dumping of hazardous and radioactive waste along the Texas-Mexico border areas and the l
l compact between Tc.,as, Vermont and Maine." Some Maine elected officials have also decided to l
l oppose the Texas Low-Level Radioactive Waste Dump for similar reasons."
l Hudspeth County's population was 2,915 with a per capita income of $13,029 in 1990. The j
low-income population characteristics of Sierra Blanca and Hudspeth County serve to greatly compound the issue of disproportionate environmental and social impacts for a minority of residents if the prop ed low-level radioactive waste dump is eventually sited in that location.
Iow-income levels mean that the poorest residents, which is a majority of the population in Hudspeth County, can least afford to seek health :are and treatment for adverse health affects of l
e letter from Texas State Senator Judith Zaffirini to Vermont State Representative Gary Bressor (February 22.1994).
4 Eleven Texas counties and seven ci'ies have passed resolutions in opposition of the dump.
Matthew Witten. Vermont's Sclear Pay Toiler,Vermsnt Times. March 30.1994.
16
=..-
e i
l pollution and radioactive contamination; relocate to other regions of Texas where it typically costs more to live; fully seal and insulate their residences from air pollution impacts and radioactive i
releases; purchase and ' ' stall air filtration and air conditioning equipment in order to adequately protect themselves from radioactive, toxic, particulate and odorous air pollution; replace food they i
currently grow on theirland if their gardens and land become contaminated or tainted by pollution; l
buy bottled drinking water if their water becomr.s contamiriated; and purchase, maintain and operate l
Geiger counters or similar radiation detection and warning equipment to ensure their safety from l
radiation. Because Sierra Blanca and Hudspeth County are predominantly composed of poor People j
of Color, civil rights and environmentaljustice cencerns must be considered in the licensing of a l
proposed Texas Low Level Radioactive Waste Dump.
l l
D. Executive Order 12898 on Environmental Justice and as Amended to Require Federal Agencies to Develop an Environmental Justice Strategys l
On February 11,1994, President Clinton issued Executive Order 12898 on Environmental Justice titled " Federal Actions to Address Environmental Justice In Minority Populations And kw-Income Populations."is Executive Order 12898 specifies that the concept of environmentaljustice l
shall be enforced through Title VI. This order focuses federal attention on the environmental and human health conditions of People of Color and low-income comn unities while calling on federal agencies to make the achievement of environmentaljustice pan of their mission. President Clinton l
l
Policies and practire [having discriminatory effectsj shall be eliminated unless they are shown to be necessary to the program's operation and there is no less disenminatory alternative. Memorandum from Attomey General Janet Reno to Heads of Federal I.genciec: Regarding Use of the Disparate 1:. pact Standard in Administrative Regulations Under Title VI of the Civil Rights Act of 1964 (issued July 14,1994)(on fite with the autnor).
17
1 called for federal agencies to reinvent the way they approached environmentaljustice so that their day-to-day effons would be more effective in protecting the public health and environment. Since state ent,ities, including Respondents, have a financial nexus to the federal govemment, they must also recognize Title VI precept's, as well as the Executive Order's precepts.
The Executive Order, as amended, directed federal agencies to develop, by March 24,1995, i
i an Environmental Justice Strategy that identified and addressed disproponionately high and adverse human health or environmental effects of their programs, policies, and activities on People of Color and low-income population. Moreover, President Clinton's Executive Order affirms and nrescribes fundamental requirements for federal agencies to insure that all federal programs and federally l
l funded agencies shall be strictly prohibited from increasing the disproportionate burdens of environmental hazards in People of Color communities and low-income neighborhoods, such as l
Sierra Blanca and Hudspeth County, Texas, i
The Presidential memorandum issued with Executive Order 12898 emphasized that existing i
l environmental and civil rights laws, including the National Environmental Protection Act (hereafter "NEPA") and Title VI, provide opportunities for federal agencies to address environmental hazards in People of Color and low-income communities. Federal agencies have defined responsibilities l
l under NEPA. NEPA regulation 40 C.F.R. I 1508.14 defines the human environment as the natural i
l and physical environment and the relationship of people with that environment. As required by l
NEPA, each federal agency shall include analysis of social and economic impacts when undenaking major federal actions that significantly affect the human environment."
l 42 U.S.C. t 4321, et. seq.
f
" ' President Clinton's
- Memorandum for the Heads of All Departments and Agencies" was issued attached with the Environmental Justice Executive Order 12898 (February ll,1994).
[
18 L
l l
l The Supreme Court in Aberdeen & Rockfish Railroad Co. v. Students Challenging Regulatory Agency Procedures " ruled that even when minimal federal action is taken in an independent environmental project, a hard look at envirorimental issues and an environmental impact L
l statement is required under NEPA. The Fifth Circuit Court of Appeals made it clear that NEPA '
requires an EIA that takes a good faith objective hard look at the environmental consequences of a proh>osed action and its alternatives, provides detail ' sufficient to allow others not involved in preparation ofit to understand and consider the pertinent environmental inDuences involved, and includes sufficient alternatives to allow a reasoned choice between different courses of action, when the minimum federal action is met."
Executive Order 12898 solidifies NEPA as developed in the fifth circuit for the requirements of an EIA and adds an additional requirement of including a social study of the effects of the i
agencies programs, policies, and activities on minority and low income populations in the United States, it is clear that NEPA and its judicial interpret'ations require an EIA where major federal actions significantly affecting the environment are taking place. In Goshen Road Environmental Action V. U.S. Dep't ofAgriculture,2o sufficient federal action was found where the only federal involvement was the use of federal Rinds in a local wastewater treatment facility. Therefore, since the requisite federal action exists for NEPA's applicability, and the TNRCC fail to submit an EIA as required by NEPA, NEPA has been violated.
l "95 $. Ct. 2336. 2357 (1975).
i "Sicera Club V. Sig/cr. 695 F.2d 957 (1983).
l t
f "891 F. Supp I 126 (E.D. N. C.1995).
l 19
The Presidendal memorandum directs each federal agency to analyze the environmental effects, including human health, economic and social effects of federal actions, and on People of Color and low-income communities, when such analysis is required by NEPA.2' ' Jtigation measures outlined or analyzed in an environmental assessment, EIA or record of decision, whenever l
feasible, should address significant and adverse environmental effects of proposed federal actions on People of Color and low-income communities, including Sierra Blanca and Hudspeth County.
Complainants assen that Executive Order 12898 is directly relevant to the affected i
community of Sierra Blanca and Hudspeth County, Texas. Complainants further believe that l
compliance with Executive Order 12898 is required in the Texas Low-Level Radioactive Waste Dump matter, including the pending licensing oversight and reviews by federal and state agencies, since a predominantly People of Color and low-income population is located close to the site and will be further disproponionately affected by the health, environmental, eccnornic and social impacts from the operations no pollution from the Texas Low-Level Radioactive Waste Dump.
l Applicability of Executive Order 12898 to federal agencies is additionally indicated since 1
l l
President Clinton directed all depanment and agency heads to take appropriate and necessary steps to ensure that specific directives be implemented immediately effective, Febmary 11,1994.22 The l
Texas Low Level Radioactive Waste Dump was not constructed as of February 1994. Complainants l
assen mat the nuclear waste disposal compact between the States of Texas, Vermont and Maine to l
operate the Sierra Blanca site for the Texas Low-Level Radioactive Waste Dump is a " program"
- 'Id.
i 22 Id. The Memorandum states "[iln accordance with Title VI of the Civil Rights Act of 1964, each federal agency shall ensure that all programs or activities receiving federal financial assistance that affect human heahh or the environment do not directly or through contractu 1 or other arrangements, use enteria. methods, or practices that discriminate on the basis of race, color, or national origin."
20
1 l
l and/or " activities" receiving federal financial assistance that affects human health or the environment.
Executive Order 0898,in section 1-1 " Implementation" and section 1-102 ' Creation of an l
Interagency Working Group on Environmental Justice," contains key requirements for federal agencies to carry out, including critical steps through an interagency effort to be lead by the EPA l
with involvement by other agencies, which applies to the People of Color and low-income l
l communities in Hudspeth County, especially since the proposed Texas Low-level Radioactive l
l Waste Dump is an interagency effort.2' These steps include:
l
- develop strategies for identifying and addressing disproportionately high and adverse l
l human health or environmental effects on low-income and minority populations of their I
programs, policies or activities;
- ensure minority and low-income populations have access to information related to human l
i l
health and the environment;
- consider activities related to human health and the environment in a manner that does not i
discriminate or have the effect of discriminating against low-income minority populations;
- consider disproportionately high and adverse human health or environmental hazards on I
minority and low-income populations in conducting research and data collection related l
so human health or the environment; and
- develop interagency model projects on environmental justice that evidence cooperation President Clinton's Executive Order 12898 on Environmenta! Justice requires creation of an Interager.cy Work Group by more than 17 agencies including the: Department of Defense; Depanment of Health and Human Services; Department of Housing and tJrban Development; Department of labor. Depanment of Agriculture; Depanment of Transportation; Depanment of Justice; Department of intenor; Derartment of Commerce; Department of Energy; Environrnental Protection Agency; Office of Management j
and Budget; Office of Science and Technology Policy; Office of the Deputy Assistant to the President for Environmental Policy; Office of Assistant to the President for Domestic Policy; National Economic Council; Council of Economic Advisers; and others.
21
I among federal agencies.
1 E. Failure to Develop a Draft Environmental Impact Statement as Evidence of l
Significant Environmental Justice Disparity and Compelling Need for Equity Redress t
1 l
Complainants assen that the DOE, NRC and EPA should prepare an EIA for the proposed Texas Low-Ixvel Radioactive Waste Dump prior to its operation. Executive Order 12898 mandates j
compliance by the NRC, DOE, EPA and all federa' agencies and federally funded programs including the Sierra Blanca site. Lack of an EIA is one manner in which citizens are being denied J
l environmentaljustice in this matter.
l The Rio Grande River is already contaminated from human sewage to a great extent and drought conditions have decreased water levels even more in recent years, including the severe drought of 1996. Radioactive waste release and con' amination of the Rio Grande River would increase the pollution burden in the border a ca. Complainants respectfully insist that the DOE, j
NRC and EPA require the preparation of an EIA for the Sierra Blanca site.
. l. Particulate Matter and PM10 Emissions - Premature Mortality Due to Particulate Air Pollution in 239 American Cities Complainants allege that Hudspeth County and Sierra Blanca have significant but undetermined environmental hazards due to particulate air pollution. Tiny manmade particulates, paniculate matter ten micrometers or less in diameter (hereafter "PM 10"), are unsafe particles in the air and are a major form of harmful air pollution of serious community concem in the sewage sludge 22
{
district? Hudspeth County has both background and manmade emissions of PMIO, but neither the background or manmade PM10 levels have been evaluated, including the dust and PM10 from the proposed Texas Low-Level Radioactive Waste Dump site. The primary health hazard posed by l
l PM10 is they are directly respirable into the deepest parts of the human lung, the minute alveolar i
i sacs where pollutants gain direct access to the blood stream, tissues and cells in the body. Harmful, l
toxic and hazardous substances travel on the surfaces of PMIO or leach out, and so are readily I
transported into the deepest, most sensitive and vulnerable lung tissues and dump their toxic load right into the blood stream damaging the human body. PM 10 is a mixture including carbon; lead; nickel; compounds such as nitrates, organics, and sulfates; acid aerosols; and complex mixtures of diesel exhaust and other pollutants. Complainants are gravely concerned about unsafe PM10 levels l
in their neighborhoods contaminating the community air supply downwind from the affected sites.
Dust and PMIO emissions produced by the Texas Low-Level Radioactive Waste Dump may carry radioactive pollutants to contaminate the air, ground water and food supply in a multi-county region.
Complairants assert that the Texas PM10.tandards are too weak to adequately protect public health from the large sewage sludge dump in Hudspetl. County and that the TNRCC has failed to carry out its mission to protect public health and the air resources of Texas. The TNRCC has performed no ambient air tests to measure the levels of particuL:es either as background or from manmade sources as an objective indicator of particulate pollution. Substantial scientific evidence of weak PM10 standards and public health concems are explained by three reports from the l
l f
Paul Conon, Best Data Yet Say Air Pollution Kills Belowlaris Currently Considered Safe,269 J AM A 3087, 3o87 l
88 (1993).
l 23
i i
i American Lung Association (hereafter the "ALA")," the State of Californiit and the Natural t
Resources Defense Council." The ALA sued the EPA in 1993 to revise the weak PM10 standards j
and the EPA is preparing a Criteria Review Document on new particle and PM10 star + -is.28 i
t 4
i Complainants raise legitimate scientific concerns over the Texas PMIO standards. The State of California maintains a far more stringent PM1024-hour standard than the EPA and Texas because i
the adverse health effects considered during the adoption of the state standard.were premature death 3
and respiratory illness. Populations at risk included individuals with a history of confirmed respiratory problems. The California Department of Health Services concluded that these serious i
The American Lung Association published a report in April 1994, The Perils o/Particulates An Estimation of
}
Populations At Risk ofAdverse Health Consequencesfrom Particulate Marterin Areas uith Particulate Matter Levels Above the 1
National Ambient Air Quality Standards (NAAQS) of the Clean Air Act and the State of California's Air Quality Standard. This i
repon focuses on PMIO health hazards as a consequence o(growing public health concems over PM 10.
l l
Prospectsfor Attaining the State Ambient Air quality Standardsfor Suspended Particulate Matter (PM10), Visibility Reducing Particles. Sulfarer '~l andHydrogen Suffde, A Report To The legislature, Approved by the Califomia Air Resources i
Board (CARB), April 11, Ibl. Like CARB, the ALA considers PMIO concentrations above the 50-55 pg/m' range unsafe and is j
300% below the existing 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> average PM10 standard set at 150 p/gm'. While EPA *> PM10 standarJ average for 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> is 150 p/gm', apparently the EPA does not consider it a PM10 exceedence until it reaches 155 /gm' or more. The State of Califomia recognizes the hazards of paniculates, especially PM 'O since it adopted standards in December 1982 more protective than the EPA's f
and Texas'. The Califomia Air Resources Board adopted a 24-hour average PM 10 standard of 50 p/m' and an annual standard of j.
30 p/gm' California adopted the PMIO standards to protect the public from the health effects of short-term exposure to ambient PM10 Ohe 24-hour PM10 standard) and long term exposure (the annual PMio s>.andard). The California Department of Health Services determined that a new 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> PMIO standard was necessary and was based on studies showing that people with serious j
respiratory illnesses suffer increased death rates when exposed to increased concentrations of ambient PMlO. Califomia public heahh j
i officials also discovered a need for an annual health-based standard from studies showing that long term exposure to PMIO causes decreased oreathing capability and increased respiratory illness in susceptible populations such as children. Another necessity for l
i an atar.ual Califomia standard of 30 p/gm'is based on consideration of substances in PMlO that cause cancer.
I l
Breath Toking: Premature Mortality Due to Particulate Air Polh, tion in 239 American Cities. Deborah Sheiman Shprentz and contributors, May,1996 Report by the Natural Resources Defense Council. Washington, D.C.
ALA, non profit association: Arizona Lung Association. Inc. (ALA/Az), nonprofit corporation. Dans Larsen and Brian McCarthy, Plaintiffs, vs. Carol Browner,in her official capacity as Administrator of the United States Emironmental Protection Agency,and EPA, Defendants in t e United States District Court for the District of Arizona. CIV 93 - 6431UC ACM, filed October h
13,1993, The EPA is under a suit in federal court in Arizona by the ALA because the existing PM IO 24-hour NAAQS of 150 p/gm' has been determined by epidemiological and medical research to be grossly inadequate to protect public health in the U.S. because particulate matter levels between 51 /gm' and 150p/gm' were found in recent scicntific studies to be associated with a variety of harmful health effects. Of direct relevance to Sierra Blanca is that the State of Texas and the TNRCC use the same FMIO standards as the EPA for PMIO NAAQS, and therefore, the Texas PM10 24-hour standard is grossly inadequate to protect public health, especially from industrial and other particulate emissions as characteristi ally occur in Sierra Blanca's industrial dump district and adjacent residential areas.
24
l health effects occur at PMIO levels well below the EPA's national (and Texas') 24-hour PM10 1
i standard. It is noteworthy that, in contrast to the California PM10 standard, the national and Texas l
PMIO standards were '.ased primarily on reversible decreases in respiratory action, and not i
j premature death. Funhermore, the populations at risk were school-aged children with normal health l
status, not necessarilyindividuals with prior respiratory health problems. The results, analyses and c
conclusions of studies published after the California 24-hour PM1O standard was adopted strongly 4
confirm that the national and Texas 24-hour PMIO standard do not include any margin of safety, and therefore, do not adequately protect health.
The State of Texas and the TNRCC continue to use non protective PMIO standards adopted in 1987 even though the California Department of Health Services called for and had the state air j
agency adopt a 24-hour PMIO standard 300'7c more stringent than the EPA's and an annual PM10 standard 167% more stringent than the EPA's? The Perils ofParticulates repon by the ALA does I
not identify Hudspeth County as an area of greater risk to the population due to unsafe PMIO concentrations in the air supply and as measured by the TNRCC.)
" Note 27. supra, The Estimated Prevalence and incidence ofI.ang Disease by Lung Association Territory. American Lung Association. April 1993. Based upon the 1991 total population of Hudspeth County at 2915 several sub-populations are more at risk to PMIO exposure. The 1993 ALA repon states that there are 21 individuals with emphysema in Hudspeth County. Hudspeth County residents documented with pediatric asthma number 53 and with adult asthma at 72. Pediatric asthma is calculated in the population at less than 18 years of age. The population suffering from chronic obstructive pulmonary disease CCOPD")is 170.
COPD includes chronic bronchitis and emphysema. Acute diseases such as acute bronchitis numbers 129,innuenza numbers 1304, common cold numbers 762, and pneumonia numbers 43. The fact is that many members of these populations live within or in the vicinity of the large sewage sludge dump near Sierra Blanca. One key health factor not inc!udd in the ALA report is that racial smups such as African-Americans are medically known to be more vulnerable to respiratory problems than other racial groups. Texas Depanment of Health, Bureau of Epidemiology and Health Risk Assessment Program, May 16,1994. Draft for Public Comment on the Holly Street Power Plant. Austin, Texas. The Texas Department of Health Experts cited numerous published pidemiological and medical studies on PM IO data suggesting that a dose-response relationship across the entire range of panicle concentrations was studied with no evidence of a threshold for safe exposure, thus indicating that a safe level of PMlO exposure may not exist. Public
[
health experts (toxicologists in health effects division)in the TNRCC have not recommended revisions to Texas PMIO standards in consideration esf public health data since 1982.
l I
l The definitive public health basis of Califomia's action is that the California Department of 3
Health Services made recommendations indicating that PMIO levels above 50 p/gm were not protective of human health and asked for safer standards in order to insure that extremely serious health effects would not occur. Funbermore, the Califomia law contained no deadline for attainment; nonetheless, the Board's overriding concern was health protection. California's PM10 standards are public health goals and regulatory objectives. Since the PMIO problem is recognized as a mixture of a number of highly diverse substances and chemicals, the State of Califomia considers PMlO to be the state's more complex air pollution problem and one of its most challenging.
A recent scientific study states that epidemiological evidence confirms an association between increased PMIO and increased mortality rates. Elevated PM10 below the NAAQS are common. Sietra Blanca and Hudspeth County residents living in the sludge dump neighborhoods believe that very unsafe, elevated PMIO levels are present in their communities and may be responsible for increased mortality rates. Pertinent PMIO ambient ai monitoring data is not available for Sierra Blanca making it difficult to stress why Complainants believe that PMIO levels near or downwind of sludge dsmp facilities are too high to be safe in the air supply. A wealth of Dockery D.W., Pope A.. et al, An Association Between Air Pollution and Monality in Six U.S. Cities, New England 3oumal of Medicine. December 9,1993, vol. 329:17531759 (commonly referred to as the Harvard Six Cities Study). Researchers studied 8.111 people for 14 to 16 years and found a 26% higher rate of premature death in the most versus the least polluted cities.
The study focused on smoking, environmental differences between communities and other possible confounding factors, a major j
problem in vinually all previous studies. The study found that mortahty rates are more strongly associated with mean concentrations i
of respirable particles and sulfates than with total suspended particulate matter or sulfur dioxide, ozone, and aerosol acidity most l
commonly associated with air po!!ution risks. The ALA suggests that 66.000 deaths a yeat nationwide may be from unsafe PM10 l
exposure and deaths in Sierra Blanca probably contribute to this total. For each 10 p/gm' increase above the suggested safe level of 50 p/gm' averaged over 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />, the epidemiological evidence concludes there is at least a one nercent increase in associated i
I mortality and that may rise to as much as two to three percent higher m ittality with each 10 p/gm' increase beyond 50 p/gm'.
26
\\
I PMIO data since 1985 indicates many days when unsafe concentrations of PM10 were collected and measured at PMIO sites. But, essentially no action was taken by the TNRCC to reduce PM10 l
j.
emissions. It is noted that t"..ational schedule for PM J O monitoring is typically done or : every l
six days. Monitoring, thus,is done 16.7 percent of the days a yea and that means no PMIO data is available 83.3% of the year. The ALA did not list Hudspeth County among the top ten counties in Texas with unsafe levels of fine particulate matter.82 l
A major public health concem is potential synergistic health interactions between particulate matter and volatile organic compounds breathed by citizens. Different pollutants have different synergistic and/or additive adverse effects. Ozone, and/or acid exposure, substantially impairs clearance ofinhaled paniculates from the lungs for as long as 60 days.') The possibility exists that even if people adapt to low levels of pollution, their ability to clear fibrinogenic or carcinogenic l
particles from their lungs may have become impaired, thereby increasing the risk of fibrosis or cancer due to enhanced retention of those panicles." Medical scientists suspect interactions between i
gases and particles lead to greater adverse effects of environme. ital pollution than with single exposures to one gas or one type of particle.35 In Sierra Blanca, the PM10 emissions are a complex i
mixture of substances and chemicals emitted from the sewage sludge dump, which in all probability l
"ALA 1994 Report.inra. at note 26 l
" Cotton int;, y note 25.
i f
8"Id I
881d.
1 4
27 l
.l
~
interacts in unknown synergistic pattems with wide variety and large volumes of other air pollutants, including hydrocarbons, pesticides, polynuclear aromatic compounds, heavy metals, infectious
]
l organisms and miscellaneous substances. One aspect of the Complair. ants allegations is that inadequate PM10 monitoring, if any ambient air monitoring is done by the TNRCC at all, is occuning to downplay the PM10 concentrations and adverse health impacts to nearby citizens.
Citizens have observed evidence over several years of a particle air pollution problem in their neighborhoods that is mainly attributable to t'-
,iudge dump. Residents near the dump areas typically found significant dump dust coating their homes, vehicles and properties for which the TNRCC has never issued a single violation. Sewage sludge dump paniculate emissions may be corrosive in some instances resulting in damage to paint on cars and homes. Once again, the TNRCC has neverissued violations for such problems even though the Texas Clean Air Act requires the TNRCC to vigorously enforce the statutory mandates of these environmental protection laws.
Nonetheless, the TNRCC has historically failed to cany out its mission. Citizen complaints of dump particulates and dust have been improperly handled by the TNRCC to the detriment of the affected public. Compla'nants allege that the TNRCC, as a matter of daily practice, typically avoids confirming and issuing air pollution violations resulting in a disparate effect on the People of Color communities.
l i
I An aerial view of the sludge dump made a number of observations. From ground lew! perspective,it is impossible i
to observe the whole sludge dump (stretching out many miles) at a glance to see how significant the particulate maner is being emitted into the air on a continuous basis from the dump when the wind blows, here have been no PMlO measurements to confirm this point, and the TNRCC needs to thoroughly assess PMIO impac's to citizens in downwind neighborhoods. To date, too little attention has been paid to PM10, which the ALA now appears to view more of a public heahh threat than ozone, sulfur dioside, nitrogen oxides, and other common pollutants.
4 28
' 2. Examples ofRespondents' Discriminatory Practices in Environmental Protection and Enforcement ofRegulations: Specific Acts ofDiscrimination and Omissigns
- a. The Respondents Have Demonstrated Bias or Preiudice in Favor of Siting New Industries and Polluters. and Against Citizens and Have Not Provided Comolainants the Oooortunity to Address All EnvironmentalIssues Complainants assen that the siting of the proposed Texas Low-I.evel Radioactive Waste Dump near Sierra Blanca, Texas, is evidence ofintentional racial discrimination by the Respondents.
This allegation implicates the WDA, the TNRCC, Vermont and Maine. Furthermore, other states are also contemplating the use of the Sierra Blanca site for their low-level radioactive waste disposal if the Sierra Blanca site becomes permitted and operational.
The siting and future enhancement of the Texas Low-Level Radioactive Waste Dump at Siena Blanca offers a case study in the sort of planning consequences that result from the failure of l
Respondents to incorporate meaningful environmental justice reviews into their planning processes.
The WDA conducted seve:al investigations of the environmental, geological and hydrological pros and cons of the site for the placement oflarge containers of radioactive waste materials. Although the WDA and other Respont.'mts knew, or should have known, that the existing Merco sewage sludge dump creates environmental hazards, a geological fault lies beneath the Texas IAw-1.evel
' Radioactive Waste Dump site and is sited adjacent to Sierra Blanca and area Hudspeth County residents. The WDA and other Respondents have not identified viable alternatives to this location for this proposed siting as the Title VI environmentaljustice mandates and Executive Order 12898 l
require.
l 29
l l
l l
Although racial effects could easily have been examined at the same time as technical matters l
were being examined Respondents inexplicably, but steadfastly refused to accord Sierra Blanca and Hudspeth County "7ple of Color and inw-income residents this same serious treatment. This failure is despite the fact that during the course of the multi-year planning process, residents l
repeatedly reminded the WDA and other Respondents of their duty to gather data on the site and then -
to scrutinize seriousl; the racial effect of the project's various activities. Such consideration of environmental justice issues is mandated by Title VI and Executive Order 12898 since this is a federally funded project. Title VI and Executive Order 12898 require that, in federally funded programs, racially disparate allocation of either burdens or benefits must be avoided whenever 1
possible. This means that at the siting and permitting stages, the WDA 'and other Respondents were and continue to be obligated to canvass the range of possible sites and seek out alternative options regarding the placement of thousands of containers of radioactive waste materials that can avoid racially unfair impacts. Such disparate impacts are interant under Title VI and Executive Order 12898 only if(1) they are necessary and (2) there do not exist any possible altemative routes having a lesser racial impact.
I Complainants further assert that part of the WDA technical review of the proposed Texas Low-level Radioactive Waste Dump was inadequate with respect to the crucial consideration of a i
geokgical fault mnning through the dump site Recent earthquake activity in the Sierra Blanca area indicates the technical issue of geological faults needs to be evaluated prior to permitting and operation.
Citizen opposition to the low-level dump is suppor+ed by a 1992 telephone opinion survey i
I (contracted by the WDA) conducted in Hudspet!) and Culberson Counties on the Texas Low-Level Radioactive Waste Disposal Dump site. The survey revealed that 56 percent of respondents believed 30
l l
l the Sierra Blanca location was a " poor" location and 63 percent stated that they " oppose" a radioactive dump site in their county. Nonetheless, when citizens discovered problems with the l
survey, they atternpted to Hse those issues only to be ignored. Complainants maintain %t a major survey flaw is that only 33 percent of the Hudspeth County survey respondents were Hispanic and 67 percent were non-Hit,nic, despite the fact that Hudspeth County's demographic data confirms 66.4 percent are Hispanic and 33.6 percent non-Hispanic. Moreover, most Hudspeth County residents are People of Color with low-income do not have phones. These figures point out a critical statistical error by ignoring a significant ponion of the Hispanic population in Hudspeth County.
The surve; 's scientific methodology was,in theory, designed to reduce sampling errors, but when agencies such as the WDA pay for self-serving surveys, it may be difficult from a public perspective to avoid major errors. Accordingly, many of the survey respondents emphasized many serious concerns about a radioactive dump site, including certain issues that the WDA is completely ignoring, such as: transpoitation accidents that may release plutonium, cesium, and.suantium; declining land values; contamination of soil and ground water; health hazards such as cancer, respiratory problems and others; leakage from storage tanks; explosions; fires; water entering and carging away radioactive wastes; corrosion of repository containers; reduction of safety to cut costs; flash flooding; eanhquakes, or other natural disasters; accidental intrusion into repository; workers' safety; and communities will have a tarnished image for development of clean industry, among others.
- b. Merco Joint Venture Sewage Sludge Dumo l
31
c In 1992, the TNRCC approved a permit to construct and operate a sewage sludge dump in j
i record time. At least 240,000 tons of sewage sludge (semi-treated human and industrial wastes) l l
from New York City oser a six year period was permitted. The dump is described as a " range land.
fertilization" project by Merco and is the largest such project in the nation. The sewage sludge is l
brought by railroad cars and will ultimately cover over 90,000 acres. Due to the eastern states ban l-on ocean dumping of sewage sludge and by their regulating sewage sludge out of their region, the sludge waste brokers have come to West Texas to find solutions to their waste dumping needs.
)
The TNRCC failed to conduct or seek public notification, public hearings, public comment or EIAs as they were determined to expedite the permitting process and totally ignore Complainants' l
civil rights. As a result, the Merco sewage sludge dump site's permit was processed in a record 23 days.
The 1992 siting and near instant permittir.g of the Merco sewage sludge dump near Sierra Blanca offers a case study in the sort of planning consequences that result from the failure of i
Respondent TNRCC to incorporate meaningful environmental justice reviews into its planning processes. The TNRCC conducted several investigations of the environmental and hydrological pros and cons of the site for the placement of large volumes of sewage sludge waste. Although the TNRCC knew, or should have known, that a sewage sludge dump creates environmental hazards, the TNRCC did not identify viable alternatives to the Sierra Blanca location for this proposed siting as the environmental justice mandates of Title VI and Executive Order 12898 require. Moreover, racial effects could easily have been examined at the same time as the technical matters were examined; however, the TNRCC inexplicably, but steadfastly refused to accord Sierra Blanca and 32
Hudspeth County People of Color and low-income residents this same serious treatment. This failure is despite the fact that during the course of the multi year planing process, residents repeatedly reminded the TNRCC ofits duty to gather data on the site and then to seriously scrutinize the racial effect of the project's various activities. Title VI and Executive Order 12898 require that, in
' federal 1y funded programs, racially disparate allocation of either burdens or benefits must be avoided whenever possible. This means that at the siting and permitting stages, the TNRCC was and continues to be obligated to canvass the range of possible sites and seek out ahernative options regarding the placement of thousands of containers of radioactive waste materials that can avoid l
l unfair racial impacts. Such disparate impacts are tolcrant under Title VI and the Executive Order only if(l) they are necessary and (2) there do not exist any possible attemative routes having a lesser racial impact.
Complainants maintain that the foregoing omissions and procedural deficiencies on the part of the Respondents violate Title VI and 40 CFR 6 7.35 (b) and (c) in that they clearly have a l
discriminatory effect on People of Color living and working in and around Sierra Blanca and l
4 similarly affected areas within and near Hudspeth County. The Respondents have not given appropriate consideration, if any, to its legal obligations under the foregoing authorities.
l Complainants have raised and continue to raise the question of environmental inequity; however, l.
the Respondents have repeatedly failed to formally review its permitting decisions on any of the l
Sierra Blanca area dump district facilities.
The Respondents claim that they have no set of policies, rules, regulations or statutory i
l directives that require them to address requests, such as those of Complainants, to review disparate l
33
_.m__
l L
1 I
environmental hazards in People of Color communities. Consequently, these communities and neighborhoods are being selectively targeted. Citizens living in Sierra Blanca already have to bear a heavy burden of' aful polluting facilit ac from recent targeting, ineffective regulations, grossly i
inadequate complaint response, lax enforcement, inadequate ambient air monitoring, and new permits that only serve to increase cptrent disparities of environmental hazards in the area.
l l
l l
4 f
34
F. Applicability of the Clean Air Act l
The State of Texas b -51igated to follow the minimum requirements of the federal Dean Air l
Act. In fact, the " Clean Air Act was based in important part on a policy of nondegradation of i
existing clean air; regulation permitting states to submit plans which allow pollution levels of clean air to rise to secondary standard levels of pollution [is] contrary to the legislative policy of the Act, and is therefore invalid."" Here, the contract the State of Texas, through its agency, the TNRCC, l
created a contract that is invalid on its face, and is a violation of the Clean Air Act.
]
The Clean Air Act and its amendments stress the importance of not only reducing, but i
eliminating the emission of hazardous substances into the environment. Paragraph (C) of section 7401 of Title 42 states that "a primary goal of this chapter is to encourage or otherwise promote i
reasonable Federal, State, and local government actions, consistent with this chapter, for pollution prevention." Plaintiff submits that the addition of a low-level radioactive nuclear waste site uar the already highly toxic sewage sludge dump does not contribute to or promote pollution prevention.
Funber, in the aforementioned section, Congress found that " air pollution control at its source is the primary responsibility of States."" Here, the State of Texas through the TNRCC did not put the health ofits citizens and the preservation of the environment ahead c,f the potential monetary benefits of transponing environmentally hazardous wastes from Vermont and Maine to Texas.
Complainants contand that the State of Texas was grossly negligent in granting permission for the 87 Sierra Club v. Ruclelshaus,344 F.Supp. 253 (D.C.D.C.1972).
- asid, l
35 e
1-s v
w.
i l
i i
low-level radioactive nuclear waste site to bp located so closely to a human habitation. As a result, the State of Texas is subject to civil penalties for its violations.3*
l G. Applicability of the Clean Water Act l
The dumping oflow-level radioactive nuclear waste near Sierra Blanca, as aforementioned, poses a severe threat to the purity of the groundwater undemeath the dumping site, which means that humans will consume toxic drinking water. The TNRCC utilizes the grossly inadequate PM 10 24-hour standard employed by the EPA as a standard for protecting human health. The State of Texas has a legal duty to its citizens to ensure that the jevels of toxic waste emitted into our water ways is emitted at a level that is safe for human consumption, if admitted at all. Complainants assert that the State of Texas and the TNRCC intentionally disregarded the health and welfare ofits citizenry by granting this permit to dump low-level radioactive nuclear waste near Sierra Blanca.
j l
l The Clean Water Act's purpose "is to restore and maintain the chemical, physical, and
~ biological integrity of the Nation's waters.'* Funher, the national policy concerning the discharge i
of toxic pollutants is that the discharge of such pollutants in toxic amounts be prohibited. d The l
State of Texas, by granting such permit, has violated the Clean Water Act by creating a strong 8'
42 U.S.C. I 205(c); 42 U.S.C. I 205(a); 42 U.S.C. I 211(d)(1).
l "33 U.S.C. I 1251.
l 4
41 1d.
36
possibility that radioactive nuclear wastes will seep into groundwater in the Sierra Blanca area.
causing its inhabitants to ingest poisonous compounds.
In addition, the EPA has negligently administered the requirements of this chapter by failing to monitor the State of Texas in its capacity to grant such permits. Complainants submit that the placing of a low-level radioactive nuclear dump site near an already toxic sewage sludge dump site is highly hazardous to the health of the citizens in Sierra Blanca. Funher, the EPA administrator has failed to adequately involve the inhabitants of said area in the Acision making process for the dump site. A poll was taken of the inhabitants regarding whether they wanted the dump site located near
)
Sierra Blanca, but the results of the poll, in which the citizens objected to Sierra Blanca as a cite for dumping, were ignored. Complainants submit that the State of Texas and the EPA have ignored l
their obligations to the citizens of Sierra Blanca and countless others, all to their damage, for which they now sue.
j In addition to violations of the federal Clean Air and Clean Water Acts, the State of Texas, through the TNRCC, has violated the Texas Clean Air Act, generally Chapter 382, Texas Health and l
Safety Code, and the Texas Clean Water Act, generally Chapter 26 of the Texas Water Code. The Texas provisions contain most of the same language and principles of their federal counterparts.
l Specifically, Complainants assert that the State of Texas has violated Section 382.003 of the Texas Clean Air Act, which states,in pertinent part:
i (3) " Air pollution" means the presence in the atmosphere of one or more air contaminants or combination of air contaminants in such concentration and of such duration that:
(A) are or may tend to be injurious to or to adversely affect human health or welfare, animal life, vegetation, or property; or (B) interfere with the normal use or enjoyment of animal life, vegetation, or property.
37
i Complainants contend that unless an injunction is granted to enjoin the State of Texas from l
building the low le ' cadioactive woo
- siu near the Merco sludge dump, the long and short term combined effects of hazardous particles emitted into the air and groundwater from both sites would be extremely toxic to human and animal health, potentially destroying the food chain for animals, and eventually, human.
IV. DISPROPORTIONATE IMPACTS OF POLLUTION ON PEOPLE OF COLOR AND THE POOR A. Scholarly Studies and Analysis Complainants recognize that the DOE, NRC and EPA are well aware of the studies and anecdotal evidence establishing that the hazards posed by pollution, including radioactive, toxic and hazardous wastes in the United States are disproportionately borne by People of Color communities and the poor.
B. Legal Authorities: Title VI of the 1964 Civil Rights Act Complainants note that the subject of their complaint also implicates the Constitution of the United States. Complainants further acknowledge the DOE's, NRC's and EPA's expertise in this area oflaw, and will only briefly, and for the purposes of clarity, review the mandate of Title VI for each of the three federal agencies. Section 601 of Title VI states in relevant part "[n]o person in the l
United States shall, on the ground of race, color, or national origin, be excluded from participation 3 aA*
3y rf WSN' ppfu&/g.h6sv>uA) 6l9lQ 38 t
j ef JO i.
{T yD TQ in, be denied the benefits of, or be subjected to discrimination under any program or activity 1
l receiving federal financial assistance." Section 602 also provides:
l
[e]ach federal department and agency which is empowered to extend federal financial l
assistance to any program or activity... is authorized and directed to effectuate the l
provisions of Section 2000d of this Title with respect to such program or activity by issuing rules, regulations and orders... which shall be consistent with the achievement of the objectives of the Statute authorizing the financial assistance in connection with which the action is taken.
The DOE's, NRC's and EPA's applicable regulations prohibit not only intentional discrimination, but also uses of federal funds that have discriminatory effects. The EPA regulations specifically implementing Title VI state:
[a] recipient shall not use criteria or methods of administrating its program which has the efect of subjecting individuals to discrimination because of their race, color, national origin, or sex, or have the efect 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."
The NRC regulations specifically implementing Title VI state under Specific Discriminatory Actions Prohibited:
[a] recipient in detemuning the types of services, financial aid, or other benefits, or facilities which will be provided under any such program, or the class of individuals to whom, or the situations in which, such services, financial aid, other benefits, or facilities will be provided under any such program, or the class of individuals to be afforded an opportunity to participate in any such program, may not, directly or through contractual or other arrangements, utilize criteria or methods of administration which have the efect of defeating or substantially impairing accomplishment of the objectives of the program as respects I
f a:40 C.F.R. I 7.35 (b) (emphasis added).
39
individuals of a particular sey. race, creed, or national origin."
l
\\
The DOE regulations specifically implementing Title VI state under Specific discriminatory Actions Prohibited:
[a] recipient shall not use criteria or methods of administering its program which has th e.[fect of subjecting individuals to discrimination because of their race, color national or sex, or have the effect of defeating or substan'ially impairing accomplishment of the objectives of the program with respect to indiviwals of a panicular race, color, nationa origin, or sex.
Thus, under Title VI and the DOE's, NRC's and EPA's implementing regulations, any programs receiving DOE, NRC and EPA funds may not be administered in a manner t practical effect of subjecting individuals to discrimination based upon race. As set forth a however, the Respondents' environmental programs dojust that. The Complainants allege that t Respondents, using federal funds, provide environmental protection services that reflec for the environmental protection needs of People of Color and poor ac>idents of Texas. In short, th Respondents provision of environmental protection services discriminate, if not by intent th cenainly by effect, against the People of Color and poor residents of Texas. Complainants fur assen that the defendants have no persuasive justification for their discrirmnatory acts and omissio "10 C.F.R. ? 4.11 temphasis added).
I
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40
V. BACKGROUND TO U.S.-MEXICO ENVIRONMENTAL RELATIONS l
l A. Treaties and Agreements j
i Intemational law disputes may be resolved through the settlement procedures provided for j
l within the many intematior.al tribunals." Unfortunately, there are no clear guidelines which provide i
l j
adequate remedies under a particular court for a particular cause of action." In the instant case, l
numerous jurisdictional avenues encourage fomm shopping which could create delays in cleanup 1
l activities.**
\\
Health problems resulting from enviromaental pollution along the 2,000 mile U.S.-Mexico l
border have been the topic of numerous negotiations between the two governments. In 1944, the i
U.S. and Mcxico established the Intemational Boundary and Water Commission, which has authority l
over projects dealing with water quality monitoring and data collection. In 1983, the U.S. and 1
l Mexico negotiated the Agreement on Cooperation for the Protection and Improvement of the l
Environment in the Border Area (hereafter the "La Paz Agreement")," which provides for l
cooperation in the protection of the environment within a 100-kilometer area on each side of the i
1.aRue Corbin. Lisa Kirby. Bill S:ith & Debra Weldon. Comrnent. The Environment, Free Trade, ar.d Ha:ardous Waste: A Study of the U.S. Mexico Border Endronmental Problenu in the Light of Free Trade. I 'IEX. WESLEYAN L REV.183 202 (1994).
"Id.
"Id.
d Treaty on the Utilization of Waters of the Colorado and the Tijuana Rivers and of the Rio Grande. Feb. 3.1994. U.S.-
Mex 59 Stat.1219.
AFreement on Cooperation for the Protection and improvement of the Environment in the Border Area, Aug.14 1983. U.S..M ex., 221.L.M.1025, 41
m.m _ _. _
-. _ _ _ _ _ -._._ _ _ _.~..-
intemational boundary. The La Paz Agreement was followed by the Integrated Environmental Plan for the U.S.-Mexico Border Area (hereafter the " Border Plan"), which encouraged informational exchanges between the respective country"s environmental enforcement agency."
The North American Free Trade Agreement (hereafter "NAFTA") was signed by the U.S.,
i Canada and Mexico to focus primarily on the development of free trade.5
- However, environmentalists were concemed that by focusing on free trade, any harmful effect on the l
l environment would be secondary in nature.5' Consequently, President Clinton recognized the passage of NAFTA could be seriously affected and, therefore, initiated the North American Agreement on Environmental Cooperation (hereafter the "NAAEC"), which is considered NAFTA's attempt at solving the environmental' conditions on the border."
(
The La Paz Agreemen' was the first to make a concerted effort to regulate environmental l
issues on the border." In 1991, the Integrated Environmental Plan for the Mexican-U.S. Border Area was added to the La Paz Agreement, whereby, emphasis would be placed on enforcement actions Integrated Environmental Plan for the U.S.. Mexico Border Area, First Stage. 19921994 (1991), U.S. Mex.,
microformed on EPl.2 (U.S. Environmental Protection Agency).
" North American Free Trade Agreement, Dec. 17,1992, U.S.-Can. Mex.,321.L.M. 605 (entered into force Jan.1,1 p) Elizabeth A. Ellis, Note, Bordering on Disaster:
A New Attempt so Control the Transboundary Efects ofMaquiladora Pollution.f0 VAL U. L REV. 621,625 (1996).
Id. North American Agreement on Environmental Ccoperation, Sept. 14,1993, U.S.-Can. Mex.,321.L.M.
1480.
t "Ellis, alma, at 642.
42 l
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i l
l by each govemment in promoting pollution prevention and waste minimization." The Border Plan attempted to incorporate the " polluter pay" theory into its framework to provide for cr>ntinued 1
l
(
funding." The Border Plan recommends that the respective governmental agencies take steps to l
ensure that each party complies with the environmental standards and requirements ofits respective agency."
l Conversely, NAFTA's environmental side agreement, the NAAEC, established an i
enfprcement network, the North American Commission for Environmental Cooperation (hereafter the "NACEC"), that conducts cooperative enforcement activities and promotes effective enforcement of each government's environmental laws." The NACEC's authority includes administrative i
proceedings to seek appropriate sanctions or remedies." The NAAEC also requires "each party to ensure that enforcement proceedings are available to sanction or remedy violations of that party's l
environmental laws and regulations."" Failure to implement a remedy could lead to the imposition
" Scott C. Fulton & Lawrence 1. Sperling. The Network of Environmental Enforcement and Compliance Cooperation h North America and the Western Hemisphere 30 INTL LAW. lll l19 (l596).
li, at 650.
Border Plan. Emra-as l
NAAEC, Emr.3, art. 5(1).
87
- ld.
"'Fulton, tunta, at 129.
l I
i l
43 l
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of trade sanctions.*
l Therefore, Maxico could seek redress from the EPA for failure to comply with the NAAEC.
l Funhermore, failure to comply with the NAAEC by the EPA could result in a violation of federal law. Hence, Complainants may also look to the EPA for compliance of all applicable laws and i
regulations by the WDA and the TNRCC.
B. International Environmental Law Sovereign States are charged with the responsibility of preventing any damage or harm to the environment. Specifically, States have the sovereign right to exploit their own resources, but must ensure "that activities within theirjurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction."6' Under intemational law," activities which might have an impact on nature shall be controlled, and the best available technologies that minimize significant risks to nature or other adverse effects shall be used."62 Accordingly, the WDA and the TNRCC have a duty to perform an EIA to determine the impact of the consequences of their activities in Sierra Blanca prior to the "Id.
j l
Principle 21,16 June 1972,111.LM.1416 (1972); see also, Rio Declaration on Environmen: and Development, Prir.ciple 2,13 June 1992,311.LM. 874 (1992).
World Chaner for Nature, Adopted by the U.N. General Assembly,28 Oct.1982 U.N. Doc. N37/51,221 LM. 455 (1983).
t 44
1 e
l l
1 l
implementation and use of the low level radioactive waste dump.63 However, Congress has not l
l ratified the CEIATC.
Nonetheless, statements and declarations made by a sovereign State are binding and assume l
l the character of a legal undertaking if the declaring State made the statement with the intent to be bound by the terms of the. statement? Funhermore, the declaring State is legally bound to " follow a course of conduct consistent with the declaration."65 By signing the CEIATC, the United States openly declared its intent to be bound by the terms and provisions of the CEIATC, regardless of Congress' inaction to ratify the CEIATC. Thus, the WDA and the TNRCC are bound by the terms and provisions of the CEIATC.
On the other hand, a State that gives adequate notice to a neighboring State ofits intent to place an environmentally-questionable facility near the border is exempt from liability to the l
l 66 aggrieved State In Lake Lanoux Arbitration, Spain unsuccessfully objected to a French hydroelectric power plan that, if effectuated, would alter the natural flow of a river crossing from France into Spain. A Tribunal convened and concluded that the interpretation of a 1866 treaty between France and Spain could not resolve the conflict. Accordingly, the Tribunal applied See Convention on Environmental impact Assessment in a Transboundary Context,25 Feb.1991,301.LM. 800 (1991)(hereafter CEIATC).
Nuclear Test Cases (N.Z. v. Fr.) 1974 I.C.J. 253.
id.
" Lake Lanoux Arbitration (Spain v. Fr.),12 U.N.R.I.A.A. 281 (1957).
45
t i
L intemational common law and held that France had the right to initiate its scheme and could consult Spain if Spain presented an altemate scheme." However, France need not implement Spain's j
scheme so long as Spain's interests were taken into consideration. Ultimately, Spain and France could not agree and the Tribunal held that France had sufficiently involved Spain in the preparation i
ofits hydroelectric scheme."
In the instant case, Respondents might argue that the Complainants and Mexico are on notice and have done nothing to recommend an alternate scheme. Furthermore, the State of Texas might further argue that the low-level radioactive waste dump site satisfies the relevant state, federal and international environmental regulations. Hence, the WDA and the TNRCC properly issued the necessary permits for the proposed waste dump site and the project may proceed as planned.
However, focus must be placed on the fact that the WDA and the TNRCC failed to conduct the necessary EIA: thus, the Complainants and Mexico do not have proper notice on the impact of the proposed scheme.
The Restatement (Third) of the Foreign Relations Law of the United States (hereafter the
" Restatement") maintains that a State must conform to "Fenerally accepted intemational rules and i
i standards" to prevent, reduce and control the extent ofinjury to the intemational environment and l
l 1d.
l
- 1d.
l 46 I
~..___
areas beyond nationaljurisdiction." Furthermore, a State is responsible to all other States for any violations ofits obligations resulting in any significar.t injury.7 Likewise, where an international rule or standard has been violated, or where there is a threat ofinjury, the injured or threatened State, "or any state acting on behalf of threatened common interests," is entitled to act to bring about the termination of the illegal activity.7' Moreover, section 602 of the Restatement provides that remedies are available to an injured l
or threatened State. Usually, the injured or threatened State must first issue a formal protest against the violation, accompanied by a demand that the offending State terminate the violation and desist from funher violations.72 If an adequate solution cannot be settled through diplomatic negotiations, then the injured or threatened State may seek resolution through conciliation, mediation, arbitration or adjudication."
In the instant case, Respondents have created a significant risk of injury to the people living along both sides of the U.S.-Mexico border. Accordingly, inhabitants of Sierra Blanca and Hudspeth County have access to the state and federal courts. Similarly, the responsible State must accord to "REsTATEMEvr (THIRD) OF Feat:GN RELATIONS I.,AW OF THE U%TFD STATES 5 601 (1987).
l' "Id.
l "Id., at cmt. b.
"Id, i 602, cmt. a.
\\
"Id.
47
l l
1 the injured or threatened party the "same judicial or administrative remedies as are vailable in similar circumstances to persons within the state."" Therefore, Respondents must agree to seek an adequate solution through diplomatic means. If diplomatic negotiations fail, then Complainants may seek resolution through conciliation, mediation, arbitration or adjudication. Otherwise, the aggrieved parties must be granted access to the same judicial and administrative remedies available to injured t
citizens of the State of Texas.'8 Finally, Complainants and Mexico may look to the Trail Smelter Arbitration for guidance.
In Trail Smelter Arbitration,76 a Canadian smelter plant was emitting sulfur dioxide fumes into the atmosphere, seven miles from the Canada-Washington border. The transboundary pollution resulted in damage to the State of Washington. The Tribunal found that under the principles ofinternational
!aw, no State has the right to permit i:s territory to be used in an injurious manner to the territory of another, especially where the injury is established by clear and convincing evidence. Under intemational law, Canada was held responsible for the actions of corporations within its sovereign territory. Thus, the Tribunal concluded that the plant had caused the damage, the plant must compensate the State of Washington for damage done, and that the plant must cease operations until
- 1d., at i 602(2).
78See i IV (D), infra.
l l
780.S. v. Can. (1941),3 U.N.R.I.A.A. 1938(1949) i 771d.
48
l such time conditions improve." Furthermpre, the Tribunal held that the damages incurred were recoverable under the decisions of the courts of the U.S."
In the instant case, the United States and Respondents are responsible for injuries resulting from transboundary pcllution originating within its sovereign territory and said injuries can be proved by clear and convincing evidence. Funhermore, Respondents must cease their scheme until such time they can prove that injuries are not likely to occur. Moreover, Complainants and Mexico l
l should have access to remedies under thejurisdiction of the U.S. courts.
C. The La Paz Agreement l
The spirit and intent of the La Paz Agreement may also be violated by the operation of the Texas Low-Level Radioactive Waste Dump. More specifically, the La Paz Agreement prohibited the siting of commercially-operated hazardous waste disposal facilities within 50 miles of the Texas-1 Mexico border unless the State of Texas, acting through the TNRCC, had previously conferred with l
the United States and Mexican governments. When the La Paz Agreement was signed, the two countries agreed to prevent, reduce and eliminate sources of pollution which affect the border area.
1 The Texas low-Level Radioactive Waste Dump site is approximately 16 miles from the Mexican border.
i Id.
i 1
"Id.
l l
49
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l The Mexican government and its border states along the Texas-Mexico border were never consulted or conferred with on the proposed radioactive waste dump. Mexican officials have also expressed strong opposition to the waste site because it is too closc to Mexico. Moreove Mexican officials from several border communities protested recently at the state Capitol in Austin, Texas, against the nuclear dump at Sierra Blanca. But, the systematic campaign by many Texas officials and others to site the low-level waste dump near Sierra Blanca, Texas, against overwhelming citizen opposition, is further evidence of blatant disregard for environmental justice and the La Paz
)
Agreement. Mexico has never been conferred with regarding the proposed dump site and strongly
,3
,[ ' opposes the project due to concerns regarding a threat of water contamination for communities in Mexico. The Ciudad Acuna, the Congreso de Chihuahua and the Congreso de Coahuila were all l
denied party status in a contested case hearing.
- 1. /
...s One and Two l
l Anicles One and Two establish the objectives of the parties to the agreement, which are to
" establish the basis for cooperation between the Parties for the protection, improvement and i
conservation of the environment and the problems which affect it,... to agree on necessary l
I l
mear"res to prevent and control pollution in the border area, [and] to provide the framework for development of a system of notification for emergency situations."" This language simply creates l
l a background against which persons reading the treaty may understand the terms of the agreement.
I 2
k There is no language related to enforcement of these objectives found in Article One.
l t
"La Paz Agreement, Anicle 1,14 Aug.1983,T.I.A.S. No. 19827 (1984).
50 1
i
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Anicle Two follows the background theme of Article One in that it states that the panies 1
"undenake, to the fullest extent practical, to adopt th.: appropriate measures to pre"ent, reduce and l
eliminate sources of pollution in their respective territory which affect the border area of the other."
In the instant case, Respondents did not, to the fullest extent practical, adopt appropriate measures to prevent, reduce and eliminate sources of pollution in their respective territory when they granted i
approval for the dumping oflow-level radioactive waste 16 miles from the Mexican border near Sierra Blanca, Texas. The word "undenake" implies that it is the inantion of the panies to adopt such measures.
l The La Paz Agreement does state that the parties "shall cooperate in the solution of the environmental problems of mutual concem in the border area." The potential dumping of hazardous wastes from both Vermont and Maine concems persons on both sides of the border. In addition, the word "shall" usually implicates mandatory actions that panies must take in order to be in compliance with particular mies oflaw. A treaty has the force and effect oflaw, and therefore should be adhered to.
I 51
l
- 2. Article Four l
l l
Anicle Four states that the area " situated within 100 kilometers on either side of the inland l
l and maritime boundaries between the panies" constitutes the " border area." The treaty calls for no i
i pollution within these areas, and the proposed dumping site is clearly within the purview of this l
Anicle.
1
- 3. Article Six l
Article Six addresses the implementation of the La Paz Agreement, and provides several i
options for the panies to consider. It states, in pan, that the panies "shall consider, and as appropriate, pursue in a coordinated manner practical, legal, institutional and technical measures for protecting the quality of the environment in the border area." The EPA is charged with the duty, under Anicle 8 to the La Paz Agreement, to be the national coordinator for the implementation and monitoring of said treaty. Therefore, the EPA may be recponsible for failing to prevent the State of Texas from approving such a waste site in violation of the La Paz Agreement.
1 Funher, this Article states that forms of cooperation between the parties may include
" periodic exchanges of information and data on likely sources of pollution in their respective territory which mayproduce environmentallypolluting incidents" (emphasis added). It is unclear l
whether the United States, through the State of Texas, gave proper notice to Mexico regarding the j
potential dumping of hazardous waste near Sierra Blanca. However,it could be implied from the language of this Anicle that such notification to the residents of Mexico that could be effected by 52
- - _ ~.
~. -. - - - - -
the dumping site rneans that the same should have a voice in deciding whether the dumping site should be approved in this area, or that they should be placed on notice in order to enforce the treaty prior to such dumping, or prior to the approval of such dumping.
l
- 4. Article Seven Article Seven provkles that an EIA be performed regarding the border area, where appropriate, and "in accordance with respective national laws, regulations, and policies... so that l
appropriate measures may be considered to avoid or mitigate adverse environmental effects" l
(emphasis added). In the instant case, no EIA was performed by the appropriate authorities (EPA l
or otherwise) and made available to the public for its examination and subsequent action. This inaction by respondents is a clear breach of the terms of the La Paz Agreement.
- 5. The Annexes Under Annex II, the Agreement of Cooperation Between the United States of America and the United Mexican States Regarding Pollution of the Environment Along the Inland International Boundary By Discharges of Hazardous Substances states at Article I (a) that "a polluting incident" means a discharge or the threat of a discharge of any hazardous substance on one side of the inland l
l intemational boundary of a magnitude which causes, or threatens to cause, imminent and substantial l
l adverse effects on public health, welfare, or the environment. The potential dumping of the low i
level radioactive waste near Sierra Blanca constitutes "a polluting incident" as that term is defined in the above entitled agreement.
t 53
)
Further, examination of Article I(c) deems the contents of the waste schedgled for dumping at Sierra Blanca as a " Hazardous Substance." " Hazardous Substances" are elements and compounds which if discharged or present may present an imminent and substantial danger to the public health, i
i welfare or the environment according to the laws of each party (United States and Mexico)." The low-level radioactive waste has the potential of being carried across into Mexico by wind, and has q
the possibility of being ingested by Mexican border residents possibly causing cancer and other i
debilitating physical conditions.
Finally, under Article 1(d), the Agreement defines the U.S.-Mexican border area as the "non-maritime area which is the area situated 100 kilometers on either side of the inland international i
boundary."" The area in which Sierra Blanca is located is within this proscribed area-Analyzed harmoniously with Article ID of Annex H, which declares that the United States and Mexico will develen " response plans designed to permit detection of the existence or the imminent possibility of the occurrence of polluting incidents within their respective areas" and that the l
l countries want to " provide adequate response measures to eliminate to the extent possible the threat l
l posed by such incidents," one can determine that Respondents clearly violated Annex H of this l
Agreement." The location of the proposed dump cite constitutes "a polluting incident" that is supposed to be kept far and away from human residences. Because the site will contain hazardous "1990 WL 525899,2 (Treaty)
"Id i
l "Id., at 3.
sa l
l I
l l
substances, it poses a threat to the livelihood of Sierra Blanca residents through possible consumption and inhalation of particles blown from the area and possible seepage into their 1
groundwater systems. The EPA and the Secretaria de Desarrollo Urbano y Ecologfa of Mexico could be liable to U.S. residents for neglecting to bring an action against Respondents as Article 8 of the treaty determines that they are the parties responsible for responding to any polluting incident.
l l
Others that may be responsible for the detection and aversion of polluting incidents are only vested l
with power to act after a polluting incident occurs. Contamination by the Merco sewage sludge dump has already occmred, thereby satisfying the after language.
l Finally, under Annex III, Agreement of Cooperation Between the United States of America i
and the United Mexican States Regarding the Transboundary Shipments of Hazardous Wastes and l
l Hazardous Substances at Article II, General Obligations, Respondents violated Part 2 by failing to l
l
" ensure that its domestic laws and regulations are enforced with respect to transboundary shipments of hazardous waste and hazardous substances that pose dangers to the public health, property, and the environment."" Here, Respondents failed to' follow the provisions of the La Paz Agreement, which prohibits the location of a dump cite within 50 miles of the U.S.-Mexico border. As stated above, the proposed dump cite is only 16 miles from the Rio Grande river and the U.S.-Mexico l
border.
Conversely, the State of Texas might argue that under Principle 21, which the La Paz Agreement incorporates, the State of Texas may exploit its natural resources to any extent as long i.
j "Id.,at8.
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as its actions do not adverscly affect the environment of other States. Again, the State of Texas could argue the issue of standing to sue, and it could also argue by giving the waste dump its approval, the State of Texas recognized the projeu as environmentally friendly, even in the absence of an EIA. Nonetheless, to do so would be against the great weight of authority calling for environmentally sound practices.
D. The La Paz Agreement in Federal Courts A treaty made under the authority of the United Stees "shall be the supreme law of the land
"" However, there are some exceptions to this rule, and the treaty must be self-executing in order for it to be binding domestically in the federal courts. Section 111(2) of the Restatement states that " cases arising under... international agreements of the United States are within the Judicial Power of the United States and, subject to Constitutional and statutory limitations and requirements ofjusticiability, are within the jurisdiction of the federal courts." This section of the Restatement illustrates the exceptions that must be analyzed before a conclusion can be drawn as to the domestically binding effect of the La Paz Agreement in the federal courts. These exceptions can be categorized as the following: constitutional limitations; statutory limitations; and the requirements ofjusticiability.
The constitutional limitations arise from the language of the U.S. Constitution itself, For l
l cxample, section 7 of article I of the Constitution states that "{a]Il Bills for raising Revenue shall 851f CoNsT. art. VI, i 2.
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originate in the House of Representatives." Therefore, a treaty cannot " raise revenue.""' There is l
nothing in the U.S. Constitution that precludes a treaty from regulating the environment. Therefore, i
the Constitution does not limit the United States from treating the La Paz Agreement as domestically l
binding in the federal courts. There are no statutory laws that limit the domestically binding effect of the La Paz Agreement in the federal courts, and there is no authority that suggests that the La Paz l
Agreement creates any non-justiciability issues. Therefore, these latter two exceptions do not need to be analyzed.
The controversy is sure to come from the issue of whether the La Paz Agreement is self-executing, since Congress hrs not made the treaty executory. Section 111(3) of the Restatement j
states that "[c]ourts in the United States are bound to give effect to... intemational agreements of the United States, except that a 'non-self-executing' agreement will not be given effect as law in absence ofnecessary implementation"(emphasis added). In order to analyze whether the La Paz Agreement is self-executing, it will be necessary to discuss the Restatement's defm' ition of non-self-executing and the United States case law's interpretation of self-executing.
Section 111 (4) of the Restatement states that "[a]n international agreement of the United States is
'non-self-executing'[:] (a)if the agreement manifests an intention that it shall not become effective as domestic law without the enactment ofimplementing legislation [:] (b) if the Senate in giving consent to a treaty, or Congress by resolution, requires implementing legislation, or[;) (c) if implementing legislation is constitutionally required." Because Congress or the Constitution does not require implementing legislation, the main controversy will come about in the form of an "RESTATEENT, BlpH. I I I 1. Cmt. i l
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argument that the La Paz Agreement manifests an ir.tention that it shall not become effective as l
l domestic law without the enactment of implementing legislation. The opponents to having the La l
Paz Agreement treated as domestica!!y binding law will advocate that the ambiguous language of the treaty manifests an intention that the treaty is non-self-executing. However,"[t]he intention of the United States determines whether an agreement is to be self-executing in the United States...
[and] whether an agreement is to be given effect without further legislation is an issue that a coun
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must decide when a pany seeks to invoke the agreement as law...."" It is also imponant to note that the Reponers' Notes to the Restatement suggest that there is a strong presumption that a treaty i
l is self-executing, and this is especially true when some time has passed since the treaty has come into force.
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The Supreme Court in Asakura v. City ofSeattle held that similar type treaty language to the La Paz Agreement language made the treaty in question self-executing. Both treaties use the verb "shall" when identifying the obligations of the party states. However, the Court of Appeals l
l have established objective criteria in order to evaluate the overall intention of the United States
]
l conceming the self-executing language of a treaty. The factors used to determine whether a treaty is self-executing are: the purposes of the treaty and the objectives ofits creators, the existence of domestic procedures and institutions appropriate for direct implementation, the availability and feasibility of alternative enforcement methods, and the immediate and long range consequences of t
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l Id., i l 11, cmt. h.
8 "265 U.S. 332 (1924).
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self-or non-self execution."
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The purpose of the La Paz Agreement is to prevent pollution in the border area of Mexico l
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and the United States. Anicic II of Annex II of the treaty established the U.S.-Mexico Contingency I
Plan and declared that an objective of the treaty is to " provide cooperative measures to deal l
effectively with polluting incidents." The fact the treaty can establish a plan that can c.bligate betii countries evidences that the treaty does not need additional implementing legislation to make the treaty binding domemcally. This illustrate 3 that the treaty is self-uecuting. Additionally, this Anicle evidences a strong policy to enforce violations of the treaty.
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The opponents to finding the La Paz Agreement self-executing will undoubtedly cite United States v. Postal, because there the treaty was found non-self-executing. However, it is imponant to note that this case is distinguishable from the present case, because in that case, there was specific 1
language in the treaty that said implementing legislation may be necessary. This is not consistent with the La Paz Agreement.
i A finding of self-execution in a treaty in People ofSaipan v. United States Dep't ofinterior, created a source of rights enforceable by an individual litigant in a domestic coun oflaw. Therefore, if a finding of self-execution in the La Paz Agreement is found, then the treaty likely creates a source of rights enforceable by an individual litigant in a domestic court of law.
" UnitedStarts v. Postal, SR9 F.2d 862 (5th Cir.1979), citing with approval Prop!c cfSaipan v. United Stores Dep'r efinierior. 502 F.2d 90. 97 (9th Cir,1974), cert, denied. 420 U.S.1003 0975).
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In summary, because the treaty doci r.ot fall into an exception that would preclude the finding that it is binding domestically, and there is sufficient evidence that the treaty is self-executing, as l
illustrated above, the La Paz Agreement is bindi..,, domestically in the federal courts.
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l Under international law, conflicting States must first look to relevant treaties in seeking l
l resolution to the conflict at hand. The integretation of relevant treaties provides a framework for l
a just resolution. In the absence of appropriate language or a valid enforcement mechanism, States must then apply the principles of customary international law, which generally provide that a State may use its sovereign territory for its own benefit se long ts a neighboring State is not subject to injury resulting from said use."
In the instant case, the La Paz Agreement does not provide adequate remedies for injuries likely to occur from the placing of a low-level radioactive waste dump site in Hudspeth County near the U.S.-Mexico border. Furthermore, Respondents failed to provide adequate notice of the likely impact of placing such a dump site. Accordingly, Respondents are in clear violation of customary international law and Complainants have the right to enforce the La Paz Agreement, customary international law and state and federal laws under thejurisdiction of U.S. federal courts.
VL CONCLUSION & PRAYER Based upon all the foregoing reasons, it is clear that the Respondents' environmental programs are designed and administered in a fashion that encourages siting, permitting and polluting
" Principle 21,1gp.Ig, at note 58.
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activities by exceptionally large commercial facilitie3 in areas that are largely inhabited by People i
of Color and low-income. Complainants respectfully request that the DOE, NRC and EPA cooperate l
tojointly investigate the aforementioned allegations and recommend to the President of the United States and Congress that the States of Texas, Vermont and Maine be required to administer their respective health and environmental protection programs in a manner that does not discriminate against People of Color or low-income citizens of the State of Texas, and specifically Hudspeth County and Sierra Blanca, Texas.
Funbermore, the Complainants urge that your respective agencies direct its prompt attention to the Respondents' activities with regard to the Siena Blanca site for the Texas Low-Level Radioactive Waste Dump and related Hudspeth County sources of environmental hazards. Finally, Complainants respectfully request your offices' assistance in securing the Respondents full and continuous compliance with the foregoing authorities in remedying the effects of discrimination that have already occurred for several years without abatement.
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O In conclusion, Complainants stand ready to prov:Je any additional information at their disposal. Please contact us should you have any questions concerning the matters set fonh in this Formal Complaint. Finally on behalf of Complainants, thank you for your consideration and attention. We look forward to your prompt response.
1 Sincerely yours, b.Mb Grover G. Hankins, Esq.
l Attomey for Complainants
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Director, Environmental Justice Clinic Thurgood Marshall School of Law Texas Southern University (713) 313-7287 (713) 313-1089 Fax GGH:rao 1
Encl: La Paz Agreement Sierra Blanca Legal Defense Fund Literature i
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