Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
SCCIA v. NJDEP
April 19, 2001
SOUTH CAMDEN CITIZENS IN ACTION, GENEVA SANDERS, PAULINE WOODS, BARBARA PFEIFFER, JULITA GILLIARD, OSCAR LISBOA, SHIRLEY RIOS, PHYLLIS HOLMES, GWEN PETERSON, LATOYA COOPER, AND JULIO LUGO, PLAINTIFFS,
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION AND ROBERT C. SHINN, COMMISSIONER OF THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, IN HIS OFFICIAL CAPACITY, DEFENDANTS, AND ST. LAWRENCE CEMENT CO., L.L.C., DEFENDANT-INTERVENOR.
The opinion of the court was delivered by: Hon. Stephen M. Orlofsky, United States District Judge.
Plaintiffs' application for preliminary injunctive and declaratory
relief presents difficult and novel issues arising under Title VI of the
Civil Rights Act of 1964, 42 U.S.C. § 2000d, which prohibits
discrimination based on race and national origin by recipients of federal
funding. At its heart, this dispute centers around the allegedly racially
discriminatory siting of an industrial facility in an impoverished
neighborhood of Camden, New Jersey, ninety-one % of whose residents are
persons of color.
To understand the nature of the issues presented, I shall set forth a
brief summary of the operative facts. Plaintiff, South Camden Citizens
In Action ("SCCIA"), is an unincorporated community organization, whose
members are residents of a neighborhood in Camden, New Jersey, known as
"Waterfront South." The individual Plaintiffs are residents of Waterfront
South and members of SCCIA. Defendant, the New Jersey Department of
Environmental Protection ("NJDEP"), a New Jersey state agency, is
responsible for enforcing the environmental laws and regulations of the
State of New Jersey, as well as federal law, where applicable. The NJDEP
receives federal funding and is thus obliged to conform its operations to
the restrictions imposed by Title VI and the regulations which have been
promulgated to implement Title VI. Defendant, Robert C. Shinn, Jr.
("Shinn"), is the Commissioner of the NJDEP. Defendant-Intervenor, St.
Lawrence Cement Co., L.L.C. ("SLC"), manufactures and distributes cement
products. SLC has built and proposes to operate a facility in Waterfront
South to grind and process granulated blast furnace slag ("GBFS"). SLC
sells the ground GBFS as an additive to portland cement.
SLC's proposed facility will emit certain pollutants into the air.
These pollutants will include particulate matter (dust), mercury, lead,
manganese, nitrogen oxides, carbon monoxide, sulphur oxides and volatile
organic compounds. The GBFS will arrive by barge at a Camden port
facility. Trucks will then deliver the GBFS to SLC's proposed facility
in Waterfront South, a distance of approximately three miles. The GBFS
will then be processed and transported back to the port by truck.
Annually, there will be approximately 35,000 inbound delivery trucks
arriving at SLC's proposed facility and approximately 42,000 outbound
truck deliveries departing from the facility. Inbound truck deliveries
will occur on about eighty days per year with approximately 500 truck
deliveries per day. Outbound truck departures from the SLC facility will
occur on approximately
225 days per year, with about 200 trucks departing
per day. The contemplated truck routes pass through the Waterfront South
The population of Waterfront South is 2,132, forty-one percent of whom
are children. Ninety-one percent of the residents of Waterfront South
are persons of color. Specifically, sixty-three percent are
African-American, twenty-eight percent are Hispanic, and nine percent are
non-Hispanic white. The residents of Waterfront South suffer from a
disproportionately high rate of asthma and other respiratory ailments.
The Waterfront South neighborhood is already a popular location for the
siting of industrial facilities. It contains the Camden County Municipal
Utilities Authority, a sewage treatment plant, the Camden County Resource
Recovery facility, a trash-to-steam plant, the Camden Cogen Power Plant,
a co-generation plant, and two United States Environmental Protection
Agency ("EPA") designated Superfund sites. Four sites within one-half
mile of SLC's proposal facility are currently being investigated by the
EPA for the possible release of hazardous substances. The NJDEP has also
identified fifteen known contaminated sites in the Waterfront South
As described in greater detail in this Court's Findings of Fact and
Conclusions of Law set forth below, the NJDEP granted the necessary air
permits to SLC to allow its proposed facility to begin operations. In
doing so, the NJDEP considered only whether the facility's emissions
would exceed technical emissions standards for specific pollutants,
especially dust. Indeed, much of what this case is about is what the
NJDEP failed to consider. It did not consider the level of ozone
generated by the truck traffic to and from the SLC facility,
notwithstanding the fact that the Waterfront South community is not
currently in compliance with the National Ambient Air Quality Standard
("NAAQS") established by the EPA for ozone levels, nor did it consider
the presence of many other pollutants in Waterfront South. It did not
consider the pre-existing poor health of the residents of Waterfront
South, nor did it consider the cumulative environmental burden already
borne by this impoverished community. Finally, and perhaps most
importantly, the NJDEP failed to consider the racial and ethnic
composition of the population of Waterfront South.
At this stage of these proceedings, this Court must resolve the
following complex questions: (1) Whether the criteria and methods used
by the NJDEP to evaluate air permit applications, namely, its exclusive
reliance on EPA emissions maximums, especially the NAAQS for particulate
matter ("PM-10"), without consideration of the totality of the health and
environmental circumstances of the community in which the proposed
facility will be located, violates the regulations promulgated by EPA to
implement Title VI of the Civil Rights Act of 1964, which prohibits
discrimination based on race and national origin; and (2) Whether the
NJDEP's decision to issue the necessary air permits to SLC to operate its
proposed facility in the Waterfront South Community constitutes disparate
impact discrimination based on race and national origin in violation of
EPA regulations promulgated to implement section 602 of the Civil Rights
Act of 1964, 42 U.S.C. § 2000d-1.
Accordingly, I shall grant Plaintiffs' application for a preliminary
injunction, vacate the NJDEP's issuance of SLC's air permits, and remand
this case to the NJDEP and Commissioner Shinn to make appropriate
findings consistent with this Opinion. The NJDEP's findings shall be
filed with the Court within thirty days of the date of this Opinion. SLC
shall be enjoined from operating its proposed facility pending further
order of this Court. This Court shall retain jurisdiction.
SLC selected and signed a lease for the site of the proposed facility
in March, 1999. Shortly thereafter, it began preliminary negotiations
with the NJDEP. SLC submitted its formal air permit applications to the
NJDEP on August 5, 1999. The NJDEP designated SLC's application
"administratively complete" on November 1, 1999. This designation allowed
SLC to begin construction of the facility at its own risk pending final
approval of the permits.
The NJDEP issued draft air permits for the facility on July 25, 2000.
The NJDEP invited public comment on the draft air permits and scheduled a
public hearing on the permits. Montag Decl., Exh. A; Pomar Cert., Exh. H.
The public hearing was held on August 23, 2000. Montag Decl., Exh. B. On
October 31, 2000, NJDEP simultaneously issued a written response to the
comments made at the public hearing and final approval for SLC's air
permits. Montag Decl., Exh. C; Diosey Decl., Exh. E.
After the public hearing, but before the NJDEP responded to the public
comments or the final permits were issued, Plaintiffs filed an
administrative complaint with the EPA's Office of Civil Rights ("OCR") by
letter dated October 4, 2000. Montag Decl. at Exh. D. On the same date,
Plaintiffs filed a complaint with the NJDEP, requesting a grievance
proceeding pursuant to 40 C.F.R. § 7.90 of the EPA's Civil Rights
Regulations. Pomar Cert., Exh. N. There is no evidence in the record to
indicate that any action has been taken by the NJDEP or EPA's OCR in
response to the filing of these administrative complaints.
On February 13, 2001, Plaintiffs filed a verified Complaint with this
Court against the NJDEP and the NJDEP's Commissioner, Robert C. Shinn,
alleging that the method the NJDEP used to evaluate and grant SLC's air
emissions permits violated Title VI of the Civil Rights Act of 1964. On
February 22, 2001, this Court signed a consent order allowing SLC to
intervene in this action as a defendant. See Consent Order (filed
February 22, 2001). Oral argument on Plaintiffs' application for a
preliminary injunction was held on March 23, 2001.
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiff, South Camden Citizens in Action ("SCCIA"),
is an unincorporated community organization. Its
members are residents of a neighborhood in Camden, New
Jersey, known as "Waterfront South." Compl. at ¶
The individual Plaintiffs, Geneva Sanders
("Sanders"), Pauline Woods ("Woods"), Barbara Pfeiffer
Julita Gilliard ("Gilliard"), Oscar
Lisboa ("Lisboa"), Shirley Rios ("Rios"), Phyllis
Holmes ("Holmes"), Gwen Peterson ("Peterson"), Latoya
Cooper ("Cooper"), and Julio Lugo ("Lugo"), are
residents of Waterfront South and members of SCCIA.
Compl. at ¶¶ 6-15. Sanders, Woods, Gilliard, Rios,
Holmes, Peterson, and Cooper are African-American.
Pfeiffer is white. Lisboa and Lugo are Hispanic. Id.
Defendant, the New Jersey Department of Environmental
Protection ("NJDEP"), a New Jersey State Agency, is
responsible for implementing and enforcing the
environmental laws and regulations of the State of New
Jersey.*fn1 Defendant, Robert C. Shinn, Jr.
("Shinn"), is the Commissioner of the NJDEP.
Defendant-Intervenor, St. Lawrence Cement Co., L.L.C.
("SLC"), is a member of the Holderbank Financiere
Glaris Ltd. ("Holderbank") group of companies.
Meadows Decl. at ¶ 2. SLC is a multinational
company which is a manufacturer and distributor of
"cementitious products." Id. at ¶ 3. In the United
States, SLC has facilities located in Hagerston,
Maryland and Catskill, New York. Id. at ¶ 2.
B. SLC's Proposed Facility
In 1998, SLC forecast an increase in construction and
therefore an increase in demand for its products. SLC
decided to construct a new manufacturing facility on
the mid-Atlantic seaboard. After considering other
locations in Delaware, Pennsylvania, and New Jersey,
SLC selected a site owned by the South Jersey Port
Corporation ("SJPC"), located in the Waterfront South
neighborhood of Camden, New Jersey. Meadows Decl. at
¶¶ 5-8. On March 8, 1999, SLC signed a 25-year
lease agreement with the SJPC, with an option for two
10-year renewals. Id. at ¶ 9.
SLC plans to use the proposed Camden facility to grind
and process granulated blast furnace slag ("GBFS").
GBFS is a by-product of the steel-making industry. SLC
will market the ground GBFS ("GGBFS") under the trade
name GranCem. GranCem is used as an additive to
strengthen portland cement. Meadows Decl. at ¶ 3.
SLC plans to import, by barge, and process
approximately 850,000 tons of GBFS and 16,500 tons of
gypsum annually. Because the on-site Broadway port
cannot accommodate the import barges, barges will
arrive and be offloaded at the Beckett Street
Terminal. Trucks will then transport the GBFS and
gypsum three miles to the SLC facility, where they
will be offloaded into large, open piles. Front-end
loaders will transfer the GBFS to a feed hopper. From
the feed hopper, the GBFS will be transported by
conveyor belt to a vibrating screen, which will sift
out oversize materials. The remaining material will
proceed via conveyor belt to the roller mill, where it
will be heat dried and then ground into smaller
particles. The GGBFS will be stored in storage silos
until it is transported out of the facility by truck.
Pomar Cert. at Exhs. H, I.
Before processing, GBFS particles are the size and
texture of beach sand. After processing, the ground
GBFS ("GGBFS") material will be the size and texture
of powdered sugar. Pomar Cert. at Exh. H.
C. SLC's Air Contaminant Emissions and Emission Controls
Air contaminant emissions will be generated at the
following stages of GBFS processing: (1) fugitive dust
emissions will be generated from the handling and
movement of GBFS when it is offloaded from trucks,
piled, and then placed in the hopper; (2) GBFS
particles may be blown into the ambient air once on
the conveyor belt; (3) various air pollutants will be
produced during the heating and grinding processes;
and (4) GGBFS emission may occur when the GGBFS is
stored and offloaded for delivery off-site. Pomar
Cert. at Exh. I.
SLC proposes to manage and minimize the air pollution
by: (1) keeping the GBFS wet by spraying it with water
while it is being offloaded, transported by truck, and
piled, thereby minimizing fugitive emissions; (2)
watering and sweeping the roads at the facility; (3)
covering the vibrating screen and conveyor belts,
thereby protecting the GBFS from the wind; (4)
utilizing baghouse controls, which function like
vacuum cleaners, to siphon off particles before
discharging the exhaust stream from the roller mill
into the atmosphere; (5) monitoring visible dust
emissions pursuant to a "dust management plan"
("DMP"); and (6) monitoring the radioactivity levels
of the raw materials. Pomar Cert. at Exh.I.
Trucks will be used to deliver the GBFS from the
Beckett Street Port to the SLC facility, which is
approximately three miles away. Annually, there will
be approximately 35,000 inbound delivery trucks
arriving at the SLC facility annually and
approximately 42,000 outbound delivery trucks
departing from the SLC facility. Inbound truck
deliveries to the facility will occur about 80 days
per year, with approximately 500 truck deliveries per
day; outbound truck departures will occur
approximately 225 days per year, with approximately
200 trucks departing per day. Pomar Cert. at Exh. I.
The contemplated truck route passes through
residential areas of the Waterfront South community.
Smith Decl. at ¶ 19. In response to community
input, SLC modified the original truck delivery route
to minimize the number of residential streets used by
SLC-contracted delivery trucks. Id.
E. SLC's Permit Applications and Construction of the
After executing the lease with the SJPC, SLC began the
process of applying for the necessary construction and
operating permits from the NJDEP. SLC retained the
services of environmental engineers and consultants to
assist with the permitting process. From SLC's
perspective, the primary focus of the permitting
process was to obtain air permits. Air permits are
necessary because the grinding process used by SLC
creates, inter alia, dust and particulate emissions,
which are regulated by the state. Meadows Decl. at
¶¶ 11, 12.
SLC began "pre-application" discussions with the NJDEP
in March, 1999. Meadows Decl. at ¶ 10. These
discussions continued for five months and culminated
in the formal submission of SLC's air permit
applications to the NJDEP on August 5, 1999. Diosey
Decl. at ¶ 6.
Once an application is deemed "administratively
complete" by the NJDEP, however, the applicant may
commence construction on the proposed facility. See
N.J. Admin. Code tit. 7, § 27-8.24 ("[A]n
applicant may construct, reconstruct, install, and/or
put in place a source . . . while the Department
reviews an application if . . . (1) The applicant has
submitted a complete application to the Department. . . .
[and] (4) The construction, reconstruction,
installation and/or placement is not prohibited by any
Federal law or requirements, including but not limited
to PSD requirements [and] acid rain requirements.")
If an applicant decides to proceed with construction
of a proposed facility while awaiting review of its
permit application, it does so at its own risk. This
policy is reflected in the NJDEP's November 1, 1999
letter to SLC, in which the NJDEP stated that:
[T]his determination is only for administrative
completeness and does not imply or guarantee that an
Air Pollution Control Permit will be issued for the
source. In addition, based on the technical review, the
source may be subject to more additional [sic] control
and operating requirements than is [sic] currently
proposed by the company in the referenced applications.
Pomar Cert., Exh. G. SLC was fully aware of this policy
when it undertook construction of the facility. Meadows
Decl. at ¶ 13.
In late 1999, after receiving the NJDEP's letter
indicating that its application was "administratively
complete," SLC elected to begin construction of the
proposed facility. Meadows Decl. at ¶ 18. SLC was
very eager to have the facility operational in order
to: (1) off-set construction expenses; and (2) beat
its competitors in accessing and providing product to
East Coast markets. Meadows Decl. at ¶ 14.
SLC expected to receive the final permit approvals
from the NJDEP by June, 2000 and to have the facility
operational by September, 2000. Meadows Decl. at
¶ 15. According to SLC, its expectation that it
would receive final approval from the NJDEP for the
facility was based on three considerations: (1) SLC
intended to build a state-of-the-art facility; (2) SLC
planned to install all required pollution control
equipment; and (3) SLC believed the facility would be
within applicable federal and state environmental,
health, and emission standards. Meadows Decl. at
As of March 2, 2001, the facility was still under
construction and not yet ready to begin operations.
Meadows Decl. at ¶ 17. SLC attributes the
difference between the estimated and actual readiness
date of the facility to unanticipated construction
delays and delays in the permitting process. Id. at
¶ 16. SLC expected that the facility would be
operational as of March 31, 2001. Id. at ¶ 17.
SLC estimates that it will lose approximately
$200,000 per week in actual earnings if it does not
commence operations in April, 2001. Meadows Decl. at
F. SLC's Community Outreach and Community Support
In July 1999, shortly before submitting its final air
permit applications to the NJDEP, SLC began to solicit
public support for the facility from the residents of
Waterfront South. Smith Decl. at ¶¶ 2-4. SLC hired
a local consultant, Morris Smith, Esq. ("Smith"), to
manage its outreach
and community involvement
initiative. Id. at ¶ 1.
Smith arranged meetings between SLC representatives
and municipal officials, local business leaders,
community organizations, and residents. Smith Decl. at
¶¶ 2-4. The purpose of these meetings was to share
information about the facility and obtain community
input. SLC Br. at 16, Smith Decl. at ¶¶ 2-4.
SLC representatives held a "community support meeting"
with members of the Plaintiff organization, SCCIA, in
August, 1999, at the home of the SCCIA president, Rose
Townsend. The purpose of the meeting was to obtain a
letter of support for the SLC facility from SCCIA.
Smith Decl., Exh. B. Those who attended the meeting
discussed the operation of the facility, the
prospective employment of Waterfront South residents
by SLC, and environmental issues relating to the
facility. Smith Decl. at ¶ 6, Exh. C.
SCCIA convened a community meeting on September 22,
1999, at the Camden Fellowship House, to discuss the
impact of the facility on the Waterfront South
neighborhood. Smith Decl. at ¶ 7.
When SCCIA did not convene another meeting, SLC
decided to take the initiative in creating a community
advisory committee. The "Community Advisory Panel"
("CAP") began meeting in January, 2000 at the SLC
office. This group met a total of eighteen times
between January, 2000 and October 31, 2000, when the
final NJDEP permit was issued.
The CAP created a "Technical Advisory Group" ("TAG").
The purpose of the TAG was to provide CAP members and
other interested parties with an "independent
assessment of the environmental issues implicated by
the Facility's operations." Smith Decl. at ¶ 12.
Members of the CAP nominated and selected technical
experts to evaluate the impact of the proposed
facility on traffic, air quality, stormwater
management, and health. See Smith Decl. at ¶ 13
and Exhs. G, H, I.
SLC provided funding to contract technical experts
selected by the CAP to perform independent
evaluations. The CAP selected: (1) Horner & Canter
Associates ("Horner & Canter"), to study traffic
issues; (2) Professor Ronald A. Chatterton of
Villanova University, to study water impact issues;
and (3) Dr. Irwin Berlin of Trinitas Hospital, to
study health issues. Smith Decl. at ¶ 15 and
Exhs. L, N, and Q.
In January, 2000, SCCIA decided not to participate in
the CAP sponsored by SLC. Smith Decl. at ¶ 9. Olga
Pomar, Esq., attorney for the Plaintiffs, however,
attended several of the CAP meetings. Ms. Pomar
participated in the nomination and final selection of
Dr. Berlin ("Dr. Berlin"), to perform the TAG health
analysis, and Dr. Chatterton ("Dr. Chatterton"), to
perform the TAG water impact analysis. At some point,
SCCIA instructed Ms. Pomar to discontinue her
participation in the CAP. Smith Decl. at ¶ 16.
After the NJDEP granted SLC's permit requests, on
October 31, 2000, the focus of the CAP meetings
changed. The CAP meetings in November, 2000 and
December, 2000 focused primarily on whether the State
would acquire the Terraces, a housing development
located near SLC. Smith Decl. at ¶ 28. SLC
committed to assist residents of the Terraces in a
"joint effort . . . to persuade the State of New
Jersey to support acquisition of the Terraces homes
and relocation of the Terraces residents." Smith
Decl., Exh. U.
G. Applicable Environmental Standards
The CAA requires that new stationary sources of air
pollutants, such as the proposed SLC facility, must
meet established NAAQS. "Stationary sources" include
buildings, structures, facilities, and installations.
42 U.S.C. § 7411.
Presently, the EPA has established NAAQS for the
following six pollutants: (1) particulate matter less
than 10 microns in diameter ("PM-10"); (2) ozone; (3)
sulfur dioxide; (4) carbon monoxide; (5) nitrogen
dioxide; and (6) lead. 42 U.S.C. § 7409(a);
40 C.F.R. § 50.
While the EPA is responsible for establishing the
NAAQS, states are charged under the CAA with the
primary responsibility for implementing the NAAQS
within their borders and monitoring compliance. See
42 U.S.C. § 7407 (a)("Each State shall have the
primary responsibility for assuring air quality within
the entire geographic area comprising such State by
submitting an implementation plan for such State which
will specify the manner in which national primary and
secondary ambient air quality standards will be
achieved and maintained within each air quality
control region in such State.") States are required to
develop "state implementation plans" ("SIPS") which
explain how they plan to measure and monitor
pollutants, and to submit their SIPS to the EPA for
approval. 42 U.S.C. § 7410.
The CAA established separate pollution control
requirements for motor vehicle emissions. See
42 U.S.C. § 7521. Tailpipe emissions of vehicles
are regulated under Title II of the CAA and are
exempted by federal and state law from inclusion as
secondary emissions from stationary facilities.
Emissions are measured by the regular state inspection
and monitoring of individual vehicles. Id.; see also
N.J. Admin. Code tit. 7, § 27-14.
The NJDEP is required by law to apply the NAAQS
established by the EPA in evaluating permit
applications for facilities which, like the SLC's
proposed facility, will emit air pollutants. In
evaluating a permit request, the NJDEP assesses
whether the operation of facility will cause or
significantly contribute to a violation of the NAAQS.
NJDEP Br. at 11.*fn2
The EPA has also established Prevention of Significant
Deterioration ("PSD") levels for some pollutants,
including PM-10. "A PSD increment is the maximum
increase in a pollutant's concentration that is
allowed to occur above an earlier established baseline
value as long as air concentrations stay below the
standard." Montag Decl., Exh. C at 17; see also
40 C.F.R. § 52.21.
H. NJDEP Permitting Process
Based on its projected activities, SLC was required to
apply to different offices of the NJDEP for several
different types of permits. SLC applied for: (1) a
Waterfront Development Permit, from the NJDEP Office
of Sediment and Dredging Technology; (2) a Pollutant
Discharge Elimination Permit, from the NJDEP Water
Quality Division; (3) several "general permits"
governing handling and storage of materials; and (4)
air quality permits for each of the five stationary
emission sources SLC planned to operate, from the
NJDEP Air Quality Permitting Program. Pomar Cert. at
¶ 8, Exh. E, F; Montag Decl., Exh. G, H.
The primary pollutants to be produced by the SLC
facility will be emitted into the air. Diosey Decl.
at ¶ 4. These pollutants include particulate
matter (dust), mercury, lead, manganese, nitrogen
oxides, carbon monoxide, sulfur oxides, and volatile
organic compounds. Diosey Decl., Exh. D(4).
Because the most significant source of pollutants
produced by the SLC facility will be airborne
emissions from stationary sources, the focus of SLC's
application, and of the NJDEP's review, was on SLC's
air permit applications. See Diosey Decl. at ¶ 4
and Exh. B, C, D.
The NJDEP Air Quality Permit Program Office is
responsible for reviewing and approving permits for
stationary sources of air pollutants. The requirements
and the application process for air permits are set
forth at N.J. Admin. Code tit. 7, § 7:27-8.1-28.
SLC submitted its air permit applications to the NJDEP
Air Quality Permit Program Office on August 5, 1999.
The permit applications, which are several hundred
pages long, include narrative text, a site plan,
diagrams of various parts of the facility, facility
emission estimates for each of the emission stacks,
and a list of applicable state and federal
regulations. Diosey Decl., Exh. B.
With its application, SLC was required to submit an
air dispersion modeling protocol. The SLC air
dispersion modeling proposal was based on an
EPA-approved model which is capable of handling
multiple layers of information. Diosey Decl. at ¶
10. Modeling is used is to predict the environmental
impact of a pollutant emission source, such as the
proposed SLC facility, by estimating emission flow
based on air patterns and other meteorological data.
"The modeling predicts ambient air concentrations
downwind from the source of the emissions,
meteorological conditions-including wind speed and
wind direction, temperature, and turbulence in the
atmosphere — buildings, and other man-made and
natural influences." Diosey Decl. at ¶ 7. The
results of the modeling are then compared to the NAAQS
to determine whether a particular facility will cause
or significantly contribute to a violation of the
NAAQS. Diosey Decl. at ¶ 8.
The NJDEP approved the modeling protocol selected by SLC.
Diosey Decl. at ¶ 10, Exh. C.
Waterfront South is a neighborhood located in the City
of Camden, New Jersey. Waterfront South corresponds to
United States Census Tract 6018. Pomar Cert., Exh. A.
The population of Waterfront South consists of 2,132
people, approximately 41% of whom are children. Pomar
Cert., Exh. A, K. There are approximately 464
households in Waterfront South. Pomar Cert., Exh. A.
The most recent census figures available, from the
1990 census, reveal that 91% of the residents of
Waterfront South are persons of color. Specifically,
63% are African-American, 28.3% are Hispanic, and 9%
are non-Hispanic White. Pomar Cert. at ¶ 2, Exh.
In 1990, the median household income of residents of
Waterfront South was $15,082, and the per capita
income was $4,709. Over 50% of the residents of
Waterfront South live at or below the federal poverty
level. Pomar Cert. at Exhs. A, N.
Waterfront South is located in the City of Camden,
which is part of Camden County, New Jersey. According
to 1990 census figures, the residents of Camden County
are 75.1% non-Hispanic white, 16.2% African-American,
and 7.2% Hispanic. Pomar Cert., Exh. A.
In 1990, the median household income of residents of
Camden County was $40,027, and the per capita income
was $15,773. Id.
Camden County is one of twenty-one counties in the
State of New Jersey. The residents of the State of New
Jersey are 79.4% non-Hispanic white and 20.6%
non-white. Pomar Cert., Exh. A; Gelobter Cert. at
Many pollutant-producing municipal and industrial
facilities are located in or near Waterfront South.
Pomar Cert., Exh. D, Exh. K; Montag Decl., Exh. C.
Municipal or County facilities in the area include:
(1) the Camden County Municipal Utilities Authority
("CCMUA") sewage treatment plant, which treats sewage
for approximately 35 municipalities in Camden County;
(2) the Camden County Resource Recovery facility, a
trash-to-steam incinerator; and (3) the Camden Cogen
Power Plant, a cogeneration facility, which is an
industrial facility that converts waste energy to
produce heat or electricity. Pomar Cert., Exh. D.
Industrial facilities located in or near Waterfront South
include the Pneumo Abex Corporation, the G-P Gypsum
Corporation, United Parcel Service, and the Coastal Eagle
Point Oil Company Refinery. Pomar Cert., Exh. D.
There are two Superfund sites located in Waterfront
South. The first is the Welsbach/General Gas Mantle
site, and consists of two abandoned factories and
neighboring residential lots on Arlington Street. The
site is contaminated with thorium and was discovered
to be radioactive in 1981. The second is the Martin
Aaron Drum Company site, which is located on
Broadway. Pomar Cert., Exh. K at 1.
There are four sites within one-half mile of the
proposed SLC facility that the EPA has identified and
has already or is currently investigating for the
release or threatened release of hazardous
substances, including: (1) Kramer Chemicals, located
at the intersection of Atlantic and Delaware Avenues;
(2) Camden Gas Works, at the intersection of 2d and
Spruce Streets; (3)the Front Street Warehouse, at 1229
Front Street; and (4)the Camden Coke Plant, on Front
Street between Walnut and Kaighn Streets. Pomar
Cert., Exh. K at 2.
It is uncontested that, in addition to those sites
listed above, all of which are subject to some federal
or state regulation, there are numerous other
industrial facilities in the area. These include: (1)
four scrap yards on or near Ferry Avenue; (2) Jen Cyn
Industries: (3) Lambertsky Poultry; and (4) four
automotive shops. Montag Decl., Exh. K at 3.
The City of Camden recently commissioned a study of
Waterfront South, and, after analyzing the study
results, designated Waterfront South as "an area in
need of redevelopment," pursuant to N.J.S.A. §
40A:12A-3. The study found that:
Properties in [unsanitary, dilapidated or obsolete]
condition are not only harmful to themselves, but also
constitute a clear and present danger to the
surrounding community. . . . Properties which are
deleterious in their use, or are poorly arranged have
— or threaten to — become safety and
health hazards to their users as well as to those who
come in contact (even incidentally) with such
properties. Buildings and land which produce air, land
or water pollution-particularly radiation-are prime
examples of property uses which are detrimental to the
community's welfare. Additionally businesses which
generate excessive noise, dust, odors, etc. or cause
immoderate vehicle traffic (especially trucks) which
introduces safety hazards for pedestrians (especially
children and the elderly) and other motorist; and such
truck traffic which produce noise and vibrations
harmful to the mostly residential structures found on
unintended truck routes . . . are examples not only of
deleterious land uses but show how faulty or obsolete
site design can prove harmful to the rest of the
community. . . . The dense arrangement of buildings,
the close proximity of residential and industrial
uses, and unregulated truck traffic makes the
spillover effects of noxious manufacturing or related
industrial activity . . . detrimental to surrounding
property users and residents throughout Waterfront
Montag Decl., Exh. K at 4 n. 8.
J. The Health of the Community and the Effects of the SLC
Facility on Health_
(1) Current Health of the Community
Plaintiffs claim that the health of the residents of
Waterfront South is already poor, and that the
proposed SLC facility will aggravate and adversely
impact the health of the residents of Waterfront South
in two specific ways: (1) through the facility's
emissions of inhalable particulate matter; and (2)
through the ozone which will be produced by the
emissions of approximately 77,000 trucks traveling
through Waterfront South annually to transport
materials to and from the SLC facility.
To support their concerns regarding the current health
status of the community with respect to the adverse
implications of the proposed SLC's facility's
operation, Plaintiffs have submitted the deposition of
Dr. Irwin Berlin. Dr. Berlin was asked by the
Community Advisory Board's Technical Advisory Group to
study the health consequences of the proposed SLC
facility. His report to the CAP was submitted to this
Court by SLC. Smith Decl., Exh. R. Dr. Berlin is the
only physician on the NJDEP's 40-member Environmental
Equity Council. He was appointed to that position in
1999 by NJDEP Commissioner Shinn. Berlin Dep. at 7,
In his deposition testimony, Dr. Berlin testified that
he had been asked by Morris Smith, Esq., consultant
for SLC, on behalf of the CAP, to evaluate the overall
SLC facility design and emission protections, with
specific attention to particulate emissions. Berlin
Dep. at 13. In the letter he submitted to Mr. Smith
documenting his findings, Dr. Berlin identifies Camden
County as a "Community of Concern" ("COC") based on
initial findings of a study Dr. Berlin is currently
performing regarding the bronchial and lung cancer and
asthma rates of residents of New Jersey. Smith Decl.,
Exh. R at 3. The initial findings of Dr. Berlin's
study, which are not challenged, indicate that in
1) The age-adjusted cancer rate for black females is
higher than 90% of the rest of the state;
2) The age-adjusted cancer rate for black males is
higher than 70% of the rest of the state;
3) The rate of cancer is significantly higher for
black males than for white males;
4) The age-adjusted rate of death of black females
in Camden County from asthma is over three times the
rate of death for white females from asthma in Camden
5) The age-adjusted rate of death of black males in
Camden County from asthma is over six times the rate
of death for white males from asthma in Camden
Smith Decl., Exh. R at 3; see also Berlin Decl. at ¶ ¶ 31-32.
Furthermore, the self-reported asthma rate for
Waterfront South residents is 33%, more than twice the
self-reported rate of asthma in other parts of the
City of Camden. Montag Decl., Exh. K at 4. It is
undisputed that as many as 61% of Waterfront South
residents have problems coughing and catching their
breath, compared to 36-39% of the residents in North
Camden. Id. Finally, it is undisputed that 48% of the
residents of Waterfront South report experiencing
tightness in their chests as a symptom, as compared to
23% of the residents of North Camden. Id.
Neither the NJDEP Defendants, nor SLC, have disputed
the deposition testimony of Dr. Berlin regarding the
impact on the health of the community by the proposed
SLC facility, nor have they disputed the conclusions
contained in Dr. Berlin's letter to Mr. Smith.
(2) Effects of PM Inhalation
Because inhalation of particulate matter is a known health
hazard, the EPA has established a NAAQ standard for
particulate matter emissions and also regulates facilities
which emit PM-10. The currently enforceable NAAQ standard
for PM-10 was set in 1987. See 40 C.F.R. § 50.
It is undisputed that, with all proposed emissions
controls in place as stated in the permit
applications, the SLC facility will emit 59.1 tons
of particulate matter size PM-10 or smaller per year.
Diosey Decl. at ¶ 4. The SLC facility will
therefore be ...