Agency Probes Plant Permit In Name Of 'Justice'

by Laura M. Litvan
Copyright 1998 Investor's Business Daily
March 25, 1998

When residents of a small county in Louisiana heard about plans to build a chemical plant in their backyard, some rejoiced at the prospect of adding 165 new jobs to the struggling area.

Others thought Shintech Inc.'s proposed plastics plant would only add to the mix of toxic fumes in the air. St. James Parish, nestled along the Mississippi River, is near several factories, including an oil refinery and two fertilizer plants.

''We are no longer willing to sacrifice our lives and our health to this kind of development,'' said Pat Melancon, president of St. James Citizens for Jobs and the Environment.

Her 100-member group is fighting the plant. And its tactics have caught the nation's attention.

The group has accused state officials, who last year issued Houston-based Shintech air pollution permits, of ''environmental racism.'' And it lodged a complaint with the U.S. Environmental Protection Agency.

The complaint claims that Shintech's plant would unfairly burden people near its site, most of whom are black, with disproportionate pollution.

If the EPA sides with Shintech's opponents, it could signal a new era for a growing ''environmental justice'' movement. As early as next month, the EPA could order Louisiana to pull or revise Shintech's permit - or risk losing federal funds.

The Shintech case will be the first decision out of 21 similar civil rights charges pending at the agency. All told, nearly 50 such complaints have been filed. Some have been thrown out.

But while this legal tool may boost the power of activists, it could hurt job creation in urban areas, some critics say. They worry more companies won't want to move to areas with high levels of minority residents - many of whom want new jobs.

''This will bog everything down,'' said Russell Harding, director of the Michigan Department of Environmental Quality. ''It's a very serious problem.''

Many on all sides think the Louisiana case foreshadows tougher battles over plant moves into minority areas.

The problems in St. James Parish began in August '96, when Shintech said it wanted to open a new plastics plant. Local and state economic development officials thought it was a boon for a parish with an 8% unemployment rate. The national jobless rate is 4.6%.

But some in the parish, which has more than 20,000 residents, were fed up with smokestack industry. They found a useful tool in the Civil Rights Act of '64.

Among other things, Title VI of that law bars recipients of federal funds from discriminating based on race, sex or national origin. State environmental agencies get millions of federal dollars each year for running permit programs under laws like the Clean Air Act.

After Louisiana officials granted Shintech permits under the Clean Air Act last summer, Melancon's group filed Title VI charges with the EPA.

To win, they don't have to show that racism motivated state officials. The EPA says it will focus on the outcome of the state's actions. If a state's permit would unfairly burden a racial group, that could be racial bias.

St. James Parish residents live among more toxic emissions than most other Louisiana residents do, says Tulane University's Environmental Law Clinic, which represents Melancon's group.

For instance, the clinic says that each St. James Parish resident in '95 was exposed to 360 pounds of toxic-air pollutant releases. By comparison, average residents of the state were exposed to 21 pounds of releases that year.

The EPA plans to decide the charge April 3. But its work already is controversial. In January, an agency report noted it isn't possible to decide whether St. James Parish residents face higher health risks because of their cumulative exposures to toxic chemicals.

So the EPA is simply analyzing the demographics of the local community, and counting the total amount of toxic factory emissions from sites within one-mile, two-mile and four-mile radii of the proposed site.

Officials will compare that with similar data for other areas in the state. The results will gauge whether St. James Parish dwellers live near higher levels of pollution than people in other communities. The county lies between Baton Rouge and New Orleans.

The agency hasn't yet determined what level proves a discriminatory outcome. But Shintech officials aren't hopeful. They're angry the EPA won't try to show a link between St. James Parish emission levels and the specific health risks residents there face.

''What is the true 'disparate impact'? That's the quandary the EPA is having to wrestle with, and it's unfortunate it's our plant that is being touted as this benchmark case,'' said David Wise, project manager for the Shintech plant.

Bob Kuehn, director of the Tulane Environmental Law Clinic said simply proving that a minority community endures a higher pollution burden should be enough.

''To require the EPA to do a body count or a cancer count is an attempt to lead the EPA toward paralysis by analysis,'' Kuehn said.

For environmental justice groups, there's a clear incentive to filing a civil rights charge. It moves permit decision- making to Washington, where the Clinton administration has been supportive of their cause.

In '94, President Clinton signed an executive order requiring agencies to take eco-justice concerns into account in their work. And the EPA has been providing seed money to eco-justice groups, with $1.3 million budgeted for this year.

Meanwhile, the EPA may be giving these advocates more room to file bias charges.

The agency recently proposed that permit renewals also could be subject to eco-justice complaints. That means existing factories or waste sites could face charges once their permits expire. Even permit modifications, common when factories change production processes, could be open to racism complaints.

Some state officials are furious.

Opening existing permits to complaints will pose big problems for businesses and hassles for state officials, Harding said.

In Michigan, he points out, auto manufacturers and other companies file thousands of permit modifications with his agency each year. Sometimes just changing the color of paint on a car model requires modifying a permit under the Clean Air Act.

''If a company can't get a permit from my agency in a reasonable time frame, it can't stay competitive in a global situation,'' Harding said.

Meantime, eco-justice groups may have more avenues for their complaints. Late last year, the U.S. Court of Appeals for the Third Circuit ruled that Chester, Pa., residents could go straight to court with a Civil Rights Act complaint instead of going to regulators. Their challenge to a waste facility in their city is pending.

But for now, all eyes are on St. James Parish.

If the EPA sides with Shintech's foes, it will make it almost impossible for local officials to attract new jobs there, says Kevin Reilly, Louisiana's secretary for economic development.

''If Shintech falls through, it will be a disaster for us in terms of business recruitment,'' Reilly said.

But others want to see economic development in St. James Parish center on less-polluting industries, like tourism or seafood. If heavy industry is the only option, some would rather have none of it.

''Industry just isn't going to be able to relocate here the way businesses did 20 years ago,'' said Mary Lee Orr, director of the Louisiana Environmental Action Network in Baton Rouge.

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