|
Tired
of Being Dumped on, Bronx Groups Call in the
Feds By Dan Ackman
Nobody likes
garbage, but in the South Bronx, Congressman Jose Serrano and local
community groups have raised their fight against local sanitation policy
to a new level by inducing the federal government to investigate city and
state agencies for possible civil rights violations.
Last month, the
federal Environmental Protection Agency officially accepted a complaint
signed by Serrano and co-signed by 19 community groups alleging that the
city and state have discriminated against Hispanic and black residents of
the South Bronx by permitting waste facilities to be clustered there. ________ _________ The EPA action is
the first step in commencing an investigation into whether the waste
policies violate Title VI of the Civil Rights Act, which prevents programs
that receive federal funds from discriminating on the basis of race, color
or national origin. If the
federal agency finds that the city and state have engaged in illegal
discrimination, it could withdraw federal funding from the city Department
of Sanitation and the state Department of Environmental Conservation, the
two agencies charged with permitting privately owned waste transfer
stations and other garbage facilities. The activists say
that more important than the money would be a ruling by a federal agency
agreeing to their long held belief that their neighborhoods have been
forced to handle much more than their fair share of the city’s waste. Such a ruling could
dramatically change the terms of the debate about city sanitation policy
just as the city is struggling with its plans for what do with municipal
waste after Staten Island’s Fresh Kills landfill closes in 2001.
“The South Bronx
has no problem handling waste,” said Luis Torres, special counsel to
Congressman Serrano, “but there is no reason it should be handling half of
the [commercial] waste for the whole city.” Despite repeated
requests for comment, no policy-makers from the city or state would
respond on the record to Serrano’s allegations. One official, speaking under
the condition of anonymity, said the reason city officials are unwilling
to respond is that they are reluctant to engage in what they call racial
politics with Serrano. Privately, these
officials deny vehemently that their actions are racially motivated or
even racially insensitive.
They say that there are very few areas in the city zoned M3 for
heavy industry, and that they cannot tell waste management companies that
even these areas are unavailable for use. Every city needs to have a place
where waste can be disposed of, the officials say. The South Bronx happens to be
relatively unpopulated and geographically well-situated since it is on the
water and has an abundance of rail links, which allow for efficient
transfer of waste both in and out of the area. But South Bronx
activists say zoning is no excuse and argue that city policy is motivated
by its belief that the poor people in Hunts Point and Mott Haven will not
complain. For them, an
investigation into city policy is long overdue. “When you get
right down to it, the city knows who lives here and that we don’t really
vote,” said Majora Carter, a lifelong resident of Hunts Point and an
official of the Point Community Development Corp., a local activist
organization. Carter said the
city and state have concentrated waste facilities in the South Bronx
because “they were sure we wouldn’t do anything about it and a few years
ago they were right.” But, Carter and
other activists say they are determined to make sure that the city is
forced to respond to its complaints and that the EPA investigation should
help in that effort. Protests
about waste policy have been on the rise since 1997 when American Marine
Rail Corp. announced plans to open a 5200-ton-per-day waste transfer
station on the Hunts Point waterfront. The South Bronx
neighborhoods of Hunts Point, Port Morris, Melrose, and Mott Haven contain
over 60 waste facilities, according to the complaint. The area houses 35 waste transfer
stations, several sewage treatment plants and numerous auto salvage
operations. The complaint
charges that the South Bronx handles “approximately 50 percent of New York
City’s non-putrescible commercial waste and 30 percent of the city’s
putrescible [that is, putrid and wet, mostly food] waste.” The area is 95 percent black and
Hispanic and more than half live below the federal poverty
line. Serrano states in
the complaint that the area suffers the highest hospitalization rate for
asthma of any community in the city as well as the United States, a
condition it says is directly linked to the volume of diesel truck traffic
in the area, which comes not just from the waste transfer stations, but
from the Hunts Point food markets.
The city
Department of Health does not deny that pollution plays a role in causing
asthma, but says the overall cause for increasing asthma rates is
uncertain and that rates of asthma suffering have increased even as
overall pollution levels have decreased. The health department also cites
other possible causes such as smoking, dust mites, molds and dampness, and
cockroaches. Whatever the
specific health effects of waste stations in the area, community activists
say that was essential to invoke the law and language of civil rights to
force the state and city governments to act. “Title VI is the only thing
to do,” Carter said. “The
problem is not a particular station.
We had to go directly to the source of the problem [the city and
state agencies] who were permitting the stuff in the first place.” For years, Carter said, she and
others in the community have been writing letters and telephoning
officials without a satisfactory response. “Things that would
never happen in other parts of the city happen here on a daily basis,”
Carter said. “It’s not a
coincidence that we are all poor non-white people. I think they know what’s going
on.” Her colleague Marian
Feinberg, Health Coordinator for the South Bronx Clean Air Coalition
added, “There is a whole process that ends with a racist policy.”
While the Mayor’s
office and the Sanitation department would not comment, lawyers for the
city denied the allegations.
“We, of course, don’t believe there is a civil rights violation,
but it’s very early in the process, “ said Susan Kath, the chief of the
city’s environmental law division.
Most, if not all,
of the waste facilities in the South Bronx are for the processing of
private and process commercial waste, not residential waste, which is
picked up by the Sanitation Department. The complaint attacks the city not
for putting noxious facilities in the South Bronx, but for issuing and
renewing permits that permit private companies to do
so. While the Serrano
complaint states that there are 116,000 residents in Community Districts
One and Two, which make up the South Bronx, it does not acknowledge that
most of the waste stations are in areas where there is little residential
development.
In the southern
part of Hunts Point, where a majority of the waste transfer stations cited
in the complaint are located, there are fewer than 400 residents,
according to Census data. A
tour of the neighborhood indicates that most of these live near Spofford
Avenue, and not on the industrial blocks near the
waterfront. The waterfront
area is zoned for heavy industry and neither Serrano nor the community
groups say that the facilities operate illegally or that the permits at
issue were granted unlawfully.
All of the facilities mentioned in Serrano’s letter have been in
operation for years, and the specific conduct complained of does not have
to do not with issuing permits but with renewing them. Permit renewal,
according to Sanitation Department lawyer Leslie Allen, is a “ministerial
act,” automatic if the facility is operating within the
law. But Serrano says
that it doesn’t matter how the area is zoned. His counsel says that federal
civil rights law should override local laws and practices. “The EPA will look at the action
and may give consideration to the local law context. But I don’t think there is
anything [in the EPA regulations] that permits any special consideration
for local law, “ said Luis Torres, special counsel to Congressman
Serrano. “I have never heard
of any zoning defense.” The EPA agrees
with Torres’ view—to a point.
A lawyer for the agency’s Office of Civil Rights said that Title VI
law in this area was “so new and novel that no one really knows how it
works.” While the agency has
received approximately 20 complaints over the past several years attacking
local agencies for permitting an excessive number of waste facilities to
operate in minority areas, the agency has yet to rule on a single one, the
lawyer said.
How Title VI
applies to “environmental justice” claims is anything but clear, the EPA
lawyer said. While he agreed
with Torres that the civil rights rules are “wholly independent” of zoning
and other local laws, he also points to the agency’s own rules, which do
permit local interests, such as zoning, to be taken into effect.
Asked what kind of
interests the guidance contemplates, the EPA lawyer said only that the
agency has “discretion” and that “since the agency has never made an
adverse finding, no one really knows what [a violation] looks like.” Jack Greenberg, a
law professor at Columbia University who specializes in civil rights, said
that the impact of zoning and local environmental laws should depends on
whether the laws are rational in spite of the fact that they lead to a
disparate impact on minority communities. “Zoning could be taken into
account also. [The question
is] are they based on something rational and
objective.” To prove a Title
VI violation, the activists need not show that the city acted
intentionally, only that the policy has led to a “disparate impact” on the
minority community in the South Bronx, Torres says, and the agency
agrees. But EPA lawyers also
said there is no direct precedent for a case where the government’s only
action is to permit a private company to operate a waste transfer
station.
Torres emphasizes
that he supports a policy called “fair share” in which each borough
handles the waste it generates. This concept is enshrined in
the City Charter at least as far as the distribution of City facilities
are concerned. But it is not
clear whether the policy applies at all to commercial garbage, which is
picked up and disposed of by private firms. Many of these firms have chosen to
locate in the South Bronx.
Activists like
Carlos Padilla, President of the South Bronx Clean Air Coalition, say that
the Title VI action comes after years of getting the runaround. Part of the problem, Padilla says
is that the regulatory scheme is a crazy quilt. No one agency, Padilla says, is
responsible for regulating the garbage business in the area with the state
Department of Environmental Conservation, and the city departments of
Sanitation, Planning, Health department, and Transportation all playing a
role. Padilla
acknowledges that the South Bronx with its waterfront and its rail links
is a natural place for the waste transfer industry to locate. But he says it “should all be
consolidated under one roof” so it can be better regulated by the limited
number of city inspectors and to permit a reduction in truck traffic. The trucks that bring the waste to
the transfer stations probably cause more health problems and foul odors
than the stations themselves, Padilla said. Padilla advocated
transporting waste exclusively by rail and barge, which he called “the
least impactful way of doing it.”
Padilla has been at odds with his fellow environmentalist for his
support of for the American Marine Rail company’s plan to build a new and
massive transfer station on the Hunts Point waterfront. He says that the station would
allow other, dirtier facilities to be replaced and would allow garbage to
be brought in by barge rather than by truck. Padilla said that he did not believe that they will be able to remove all waste stations from Hunts Point, but “if we must house certain industries, we expect certain responsibilities.” As for the situation now, Padilla said, “It’s four pounds of baloney in a two-pound bag.” |