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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,
v.
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.

    TABLE OF CONTENTS
I. Introduction II. Procedural History III. Findings Of Fact and Conclusions of Law The Parties SLC's Proposed Facility SLC's Air Contaminant Emissions and Emissions Controls SLC's Truck Traffic SLC's Permit Application and Construction of the Facility SLC's Community Outreach and Community Support Applicable Environmental Standards NJDEP's Permitting Process Waterfront South The Health of The Community and The Effects of the SLC on Health 1. Current Health of The Community 2. Effects of PM Inhalation 3. Effects of Ozone The NJDEP's Evaluation of SLC's Permit Application Public Comment on the NJDEP's Air Permits for the SLC Facility Jurisdiction The Governing Legal Standard for Preliminary Injunctive Relief Likelihood of Success on the Merits The Existence of a Private Cause of Action Under Section 602 of Title VI Declaratory Judgement on the Requirements of Title VI Implementing Regulations Title VI Disparate Impact Analysis Plaintiffs' Prima Facie Case 1. Adverse Impact 2. Disparate Impact 3. Causation Defendants' Rebuttal Burden Irreparable Harm Irreparable Harm to Other Parties, and the Public Interest Availability of Injunctive Relief Waiver of Security
IV. CONCLUSION

OPINION

I. INTRODUCTION

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 Community.
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 neighborhood.
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.
II. PROCEDURAL HISTORY

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

A. __The Parties

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 ¶ 5.
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.
D. SLC's Truck Traffic
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 Facility
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.
In a letter dated November 1, 1999, the NJDEP informed SLC that its application was "administratively complete." Pomar Cert., Exh. G. An application is designated as "administratively complete" when the applicant has submitted all of the information the NJDEP needs to review and evaluate the proposal and decide whether to permit the facility. Id.
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 ¶ 14.
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 ¶ 18.
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
The NJDEP is responsible for regulating and monitoring the production of air, water, and ground pollutants by stationary facilities, pursuant to federal and New Jersey state regulations. See 40 C.F.R. § 70 et seq.; N.J. Admin. Code tit. 7, § 1 et seq. . .
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.
I. Waterfront South
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. A.
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 ¶ 15.
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.
The NJDEP has identified fifteen known contaminated sites in the Waterfront South neighborhood. These sites include, inter alia: (1) Camden Iron & Metal, located at the intersection of Front and Atlantic Streets; (2) Conrail, located on Chelten Ave.; (3) Lectronic Research Laboratories, at 1423 Ferry St.; (4) Consolidated Chemx Corp., located at 4th and Jefferson Streets; (5) Camden Lime, located at the intersection of South Front and Atlantic Ave.; (6) Atlantic Industrial Tank, at 212 Mechanic Street. Fourteen of these sites are currently active in the NJDEP's site remediation program. Montag Decl., Exh. C at 25-26 (Hearing Officer's Report). The NJDEP is aware of the concentration of contaminated sites in this area and has dedicated a staff member to work directly with the City of Camden to facilitate clean-up and redevelopment. Id. at 25-26.
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 South.

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, 31.
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 Camden County:
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 County;
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 County.

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 ΒΆ 4. The SLC facility will therefore be ...

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