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									                           UNITED STATES DISTRICT COURT
                              DISTRICT OF NEW JERSEY
                                 CAMDEN VICINAGE
                              HONORABLE ____________


CAMDEN REGIONAL LEGAL SERVICES, INC.
745 Market Street
Camden, NJ 08102
(856) 964-2010, ext. 232
By:    OLGA D. POMAR (OP 3135)

Of Counsel:
PUBLIC INTEREST LAW CENTER OF PHILADELPHIA
125 South 9th St., 7th floor
Philadelphia, PA 19107
(215) 627-7100
By:    JEROME BALTER (JB 2224)
       MICHAEL CHURCHILL (MC 8677)

CENTER ON RACE, POVERTY AND THE ENVIRONMENT
631 Howard St., Suite 330
San Francisco, CA 94105
(415) 495-8990
By:    LUKE W. COLE (LC 9668)

Attorneys for Plaintiffs

                                            :
SOUTH CAMDEN CITIZENS IN ACTION,            :
et al.                                      :
Plaintiffs,                                 :     Case No. ______________
                                            :
vs.                                         :
                                            :
THE NEW JERSEY DEPARTMENT OF                :   MEMORANDUM OF LAW IN
ENVIRONMENTAL PROTECTION,                   :   SUPPORT OF PLAINTIFFS’
                                            :   MOTION FOR
ROBERT C. SHINN, JR., Commissioner of the   :   PRELIMINARY INJUNCTION
NJ Dept. of Environmental Protection,       :
in his official capacity,                   :
Defendants                                  :
                                  PRELIMINARY STATEMENT

       Plaintiffs move pursuant to Federal Rule of Civil Procedure 65 to rescind temporarily the

operating permits issued by defendants New Jersey Department of Environmental Protection

("DEP") and DEP Commissioner Robert C. Shinn to the St. Lawrence Cement Company ("SLC")

to operate a cement grinding facility in Camden, NJ. The permits should be rescinded until such

time as a determination is made by this Court as to whether the issuance of the permit violated the

civil rights of plaintiffs. Plaintiffs are residents of Waterfront South, a neighborhood in the City of

Camden in which 91% of the population is comprised of African-Americans and Hispanics. The

area is already severely polluted. The SLC facility will release almost 60 tons of extremely fine

inhalable particulate matter and other pollutants per year. It will bring over 77,000 diesel trucks

per year into the neighborhood to deliver and distribute of its products, creating significant danger

to plaintiffs' health and degrading their quality of life. The DEP granted this permit to SLC,

claiming that the presence of this large polluting facility would have no adverse effect upon the

residents. Expert medical evidence presented here refutes that unsupported assertion.

       Plaintiffs have brought the within action pursuant to Title VI of the Civil Rights Act of

1964, 42 U.S.C. §§2000d, 2000d-1, Title VIII of the Civil Rights Act of 1968, 42 U.S.C. §3604,

and the 14th Amendment of the U.S. Constitution. Plaintiffs here demonstrate the likelihood of

success on the merits of their legal claims. The actions of the defendants create a disparate impact

upon plaintiffs and constitute intentional discrimination on the basis of race, color, and national

origin. Plaintiffs are entitled to injunctive relief because they will suffer immediate and irreparable

harm to their health, safety, and quality of life. The grant of injunctive relief would further an



                                                  1
important public interest and cause no harm to defendants.

                                     SUMMARY OF FACTS

       This action is being brought by South Camden Citizens in Action ("SCCIA"), a community

organization, and ten individual residents of a neighborhood known as Waterfront South in the

City of Camden, New Jersey. Waterfront South corresponds to U.S. census tract 6018. It contains

a total of 2,132 people. The great majority of the residents of Waterfront South are people of color,

with 63% of its residents African-American, 28.3% Hispanic, and only 9.0% non-Hispanic white.

Waterfront South is surrounded by other neighborhoods where the population is also over 90%

people of color. While the City of Camden also has a large African-American (56.3%) and

Hispanic (22.7%) population, with only 15.2% non-Hispanic white residents, non-Hispanic white

persons constitute 75.1% of the population in Camden County and 74.2% of the population in the

state of New Jersey as a whole. Certification of Olga D. Pomar (“Pomar cert.”), ¶2, Exh. A.

       Waterfront South is an environmentally devastated area. It contains two Superfund sites,

one of which has been emitting low-level radiation for approximately 80 years. There are many

other contaminated and abandoned industrial sites as well as currently operating polluting

industries, including waste facilities, food processing companies, automotive shops, a petroleum

coke transfer station, and chemical companies. Despite the high level of pollution already present

in the area, the DEP has continued to grant permits for additional facilities to come into the

neighborhood, including a large regional sewage treatment plant, a trash-to-steam incinerator and

a co-generation power plant. As a result, Waterfront South has a much higher concentration of

waste processing, pollution-releasing industrial facilities, and contaminated sites than



                                                 2
communities elsewhere in the county and region that have a predominately white population.

Certification of Dr. Michel Gelobter (“Gelobter cert.”), ¶ 16, 18; Certification of Geneva Sanders

(“Sanders cert.”), ¶ 4,5,6.

       Many of the residents of Waterfront South suffer from poor health. Asthma is especially

prevalent in the neighborhood. Most people in the neighborhood are very low-income. Pomar cert.

¶ 2, Exh. A; Sanders cert. ¶ 7. Their poor health and the other stressors they experience as a result

of their economic status make them particularly vulnerable to immediate harm from environmental

pollution.

       The defendants in this case are the New Jersey Department of Environmental Protection

(“DEP”), the state agency which is authorized to administer and regulate air pollution control laws,

and Robert C. Shinn, Jr. the Commissioner of the DEP. The DEP annually receives federal

financial assistance from the U.S. Environmental Protection Agency ("EPA"), for which the DEP

assures the EPA that the DEP will comply with EPA requirements including the requirement to

abide by the EPA's Civil Rights regulations.40 CFR §7.80(a). .

       The Saint Lawrence Cement Company ("SLC"), a multinational company which

manufactures cement and other similar materials, intends to operate a cement grinding facility in

Waterfront South. SLC has leased 11.7 acres of land from the South Jersey Port Corporation

("SJPC"), a state entity which owns and operates a port on the Delaware River waterfront. SLC

plans to process granulated blast furnace slag ("GBFS") at the site. Pomar cert. ¶ 10,11, Exh. H,

Exh. I. GBFS is a by-product of an iron manufacturing process and can be used as a partial

substitute for portland cement. It is composed of oxides of silicon, aluminum, calcium,



                                                 3
magnesium and sulfur, with traces of other metallic oxides. SLC will receive GBFS from Italy by

barge at the Beckett Street Terminal in Camden, located approximately three miles north of the

facility. SLC will use diesel trucks to transport the materials to the grinding facility, where it will

be kept in open piles. Conveyors will move the GBFS to a roller mill, mix it with gypsum, and

grind it into a fine powder. The grinding facility will operate 24 hours a day, 365 days a year,

processing 848,771 tons of GBFS annually. Pomar cert. ¶ 10,11, Exh. H, Exh. I.

       SLC will emit almost 60 tons per year of fine dust into the environment, just through the

handling and processing of the GBFS. This dust is characterized as PM-10, microscopic particles

10 microns (10 millionths of a meter) or less. Pomar cert. ¶ 6, Exh. C. The small size of the

particulates makes them capable of penetrating deeply into the lungs and affecting lung capacity.

Certification of Dr. Marc H. Lavietes (“Lavietes cert.”) ¶4. Most of the PM-10 emissions will be

of composed of even smaller size particles, known as PM-2.5, or particulates 2.5 microns or less.

Pomar cert. ¶15, Exh. M. These inhalable particles will be emitted through SLC’s emission stacks

and will be released during the transport and handling of the materials. Pomar cert. ¶ 10,11, Exh.

I. Fine particulate emissions constitute a serious health hazard. Increases in PM-10 and PM-2.5

levels in the ambient air increase area death rates, and cause and aggravate respiratory diseases.

Lavietes cert. ¶6 –21. SLC grinding operations will also emit other pollutants, including silica,

lead, mercury, manganese, radioactive materials, carbon monoxide, volatile organic compounds,

and sulfur oxides. Pomar cert. ¶ 6, Exh. C.

       Because of SLC, over 77,000 diesel trucks will travel through the neighborhood each year,

making deliveries of GBFS and removing the finished product. Pomar cert. ¶10,11 , Exh. I. These



                                                  4
trucks will emit carcinogenic diesel fumes and add even more PM-10 particulates. Lavietes cert.

¶22. They will also emit nitrogen oxides and volatile organic compounds, which are precursors to

ground level ozone. Waterfront South is located in a region that is already ranked as a severe

non-attainment area for ground level ozone. Pomar cert. ¶14, Exh. L. Ground level ozone irritates

lung and breathing passages and increases susceptibility to respiratory infection, particularly in

persons with asthma. Lavietes cert. ¶23. In addition, the truck traffic will severely affect quality of

life in the neighborhood, create safety hazards for pedestrians and other drivers, damage to

foundations of buildings and streets, noise, and vibrations. Sanders cert. ¶ 8, 9.

       SLC applied to the DEP for permits to construct and operate the facility in August of 1999.

SLC was required to obtain air quality permits to construct and certificates to operate for each of

its five stationary emission sources, such as its emission stacks. In addition, it needed “general”

permits governing handling and storage of materials and a waterfront development permit due to

its proximity to the Delaware River. The DEP issued the six general permits to SLC on September

7, 1999 and a waterfront development permit on November 10, 1999. Pomar cert. ¶8, Exh. E, F.

The DEP also wrote a letter to SLC on November 1, 1999, which stated that the application was

administratively complete and that SLC was allowed to construct "at risk", prior to approval of the

permit. The letter stated that the determination was made only for administrative completeness and

did not imply or guarantee that a permit would be issued. Pomar cert. ¶ 9, Exh. G. At the time the

letter was issued, the DEP had not provided any formal public notice or opportunity for public

comment regarding the proposed facility. SLC chose to exercise the option of constructing the

facility “at risk” during the permit review process. It commenced construction in late 1999.



                                                  5
Construction is now nearly complete, and the facility is about to start operations. Pomar cert. ¶19.

       While the permit review was pending, plaintiffs and other residents of Waterfront South

communicated to DEP their concerns that the siting of this facility would endanger their health and

violate their civil rights. They submitted petitions opposing the facility and requesting that a public

hearing be held. Pomar cert. ¶13; Sanders cert. ¶11.

       On July 25, 2000, the DEP issued a notice, fact sheet, and five draft air quality permits to

construct and certificates to operate with proposed regulatory conditions. Pomar cert. ¶10, 11, Exh.

H, Exh. I. No public notices were published in Spanish and none of the documents were translated

into Spanish, although a significant number of Hispanics in Waterfront South have limited English

language proficiency. Pomar cert. ¶3. A public hearing regarding the permits was held on August

23, 2000. Over 125 persons attended the hearing. Many residents, particularly residents of the

Waterfront South neighborhood, voiced their opposition to the facility. They presented evidence

that the neighborhood was predominately people of color, that many residents suffered from poor

health, and that the proposed facility would have an extremely negative affect upon their health and

safety. they also submitted written comments. Pomar cert. ¶13, Exh. K.

       The DEP documents and the statements made by DEP officials make clear that the only

criteria used by the DEP in evaluating SLC's permit application were the current National Ambient

Air Quality Standards (“NAAQS”) and other technical environmental standards. Pomar cert. ¶10, 11,

13, Exh. I, Exh. K. NAAQS are a health-based standard regulating the allowable level of fine

particulates and certain other air pollutants in the ambient air. The EPA establishes NAAQS pursuant

to its authority under the Federal Clean Air Act, 42 U.S.C. §1709. . The NAAQS currently in effect



                                                  6
regulate PM-10. 40 CFR Part 50. In 1997 the EPA proposed new, stricter standards for particulates

that would also regulate PM-2.5, on the basis that new standards were necessary to protect public

health. 62 Fed. Reg. 38652 (July 18, 1997). These standards were challenged on legal grounds by

industry groups and have not yet been put in effect. American Trucking Assn.’s v.Browner, 195 F.3d

4 (D.C. Cir. 1999), cert. granted 120 S.Ct. 2003 (2000). .Many regions in the state of New Jersey,

including in all likelihood the Waterfront South area, would not be in compliance with the new

proposed PM-2.5 standards. 1 The PM-2.5 emissions that would be released by the SLC facility

would cause even more severe non-attainment of the new PM-2.5 standards.

        There is no evidence to suggest that the DEP ever conducted an analysis of the possible

disparate impact of this facility on the basis of race, color, or national origin, to determine whether the

grant of the permits would violate federal civil rights laws, despite the DEP’s knowledge that this was

a predominately minority, heavily environmentally impacted neighborhood. The DEP did not

investigate or provide information to the public about the estimated particulate concentration of

PM-2.5 resulting from SLC operations despite the DEP’s knowledge of the new health-based

standard for PM-2.5 proposed by the EPA. Pomar cert. ¶13, Exh. K. The hearing officer told the

public at the hearing that there was no need to conduct such an analysis, because the presence of this

facility would not have a negative, or adverse, effect upon the residents of Waterfront South. Pomar

cert. ¶13, Exh. K. The DEP maintained that no one, not even people already in poor health, would

be adversely affected by the emissions if there was no violation of the NAAQS. Pomar cert. ¶13, Exh.


1
 The DEP conceded that most of the state would not be in attainment of the standard. Pomar cert. ¶14, Exh.
K In the Camden area, DEP data shows that PM-2.5 constituted 90% of the measured amount of PM-10
on a 24-hour basis, which is the only basis on which PM-2.5 data is available, Pomar cert. ¶ 13, Exh. K.
Assuming this same ratio holds through for the annual mean, the annual mean would be 18 ug/cubic meter,
above the proposed standard of 15 ug/cubic meter.
                                                    7
K.

       On October 4, 2000 the plaintiff SCCIA and other individuals filed an administrative

complaint with the EPA and a request for a grievance hearing with the DEP. Both complaints

alleged that the DEP's procedures for reviewing SLC's permit applications violated Title VI

because they did not include an analysis of racially disparate adverse impact. Pomar cert. ¶16, 17,

Exh. N.   DEP did not respond to the grievance hearing request.

       On October 31, 2000, DEP issued the five permits to construct and certificates to operate

the cement grinding facility. Pomar cert. ¶12, Exh. J. In the hearing officer's responses to the

persons who commented at the public hearing, the DEP confirmed that it considered only whether

the facility was in compliance with the NAAQS and other applicable environmental standards, and

did not consider whether the siting of the facility in this neighborhood would have a disparate

adverse impact upon the residents on the basis of race, color, or national origin. Pomar cert. ¶13,

Exh. K. DEP did not evaluate the current levels of pollution, the possible cumulative and

synergistic effects of the pollutants already present with the pollutants that would be added by

SLC, or the poor health of the residents. With regard to the truck traffic, the DEP only evaluated

the level of fugitive PM-10 emissions caused by the transport of the GBFS and the finished

product, but did not consider the other effects of the trucks on air pollution, health, safety, or

quality of life. The DEP did not regulate the use of any particular truck routes or require

construction of any sound barriers. Pomar cert. ¶13, Exh. K.

       The DEP knew of its obligations as a recipient of federal financial assistance to comply

with the EPA civil rights regulations. Commissioner Shinn has been involved in development of



                                                   8
environmental justice policies and has issued his own Environmental Equity Policy in February,

2000. This policy has not been implemented and was not utilized in the SLC permit review. Pomar

cert. ¶18, Exh. P, Exh. Q. Because DEP was fully aware of the racial composition of the

Waterfront South, its history of environmental degradation, and the civil rights violations being

alleged by the plaintiffs, the DEP knew that a meaningful investigation of the possible disparate

adverse impact caused by the SLC facility would reveal that the plaintiffs were being subject to

discrimination. DEP officials made a conscious choice not to conduct such an investigation. The

DEP subsequently ignored the plaintiffs' requests to conduct such an analysis, knowing that the

consequence was that the DEP would discriminate against the residents of this neighborhood by

permitting this facility.

        The DEP’s permitting decisions in the SLC case do not come in a vacuum. An expert

analysis of the distribution of air polluting facilities in New Jersey, done for the plaintiffs here,

reveals that Zip Code areas with higher than average population of non-whites have almost twice

as many air polluting facilities per Zip Code than those with below average non-whites. Gelobter

cert. ¶16. In fact, comparing New Jersey Zip Codes in predominately white communities (those

70% or more white) and predominately non-white communities (79% or more non-white) reveals

that there are 78% more air polluting facilities in non-white Zip Codes. This statewide pattern of

discriminatory impact on the basis of race, color, and national origin, seen so starkly in the

permitting decisions at the SLC facility in Camden, forms the basis for plaintiffs request for an

injunction here.

                                       LEGAL ARGUMENT



                                                   9
I. STANDARD FOR GRANTING PRELIMINARY INJUNCTIVE RELIEF

         When ruling on a motion for a preliminary injunction, the Court must consider four factors:

1) the likelihood of the moving party’s success on the merits; 2) the probability of irreparable harm

if relief is not granted; 3) the degree of harm to the opposing party if the injunction is granted; and

4) whether the public interest will be served. Paine Webber, Inc. v. Hartmann, 921 F.2d 507, 514

(3d Cir. 1990); Instant Air Freight Co. v. D.F. Air Freight, 882 F.2d 797, 800 (3d Cir. 1989). As

shown below, plaintiffs have a strong likelihood of success upon the merits of their Title VI claim.

As the basic elements that must be proven are similar for the Title VIII and constitutional claims,

they have a likelihood of success on those claims as well. Plaintiffs also demonstrate that they will

experience irreparable harm to their health, safety and quality of life if the injunction is not granted

and the facility is able to start operations. Defendant will suffer no harm if an injunction is issued.

Plaintiffs are acting in the public interest to protect the 2,000 residents of Waterfront South

neighborhood and the additional residents of the surrounding area. The factors therefore weigh

overwhelmingly in favor of granting injunctive relief.

   II.      THE PLAINTIFFS HAVE AN EXCELLENT LIKELIHOOD OF SUCCESS ON THE
            MERITS


            A. THE DEP HAS VIOLATED THE EPA TITLE VI CIVIL RIGHTS
               REGULATIONS BY OPERATING ITS AIR PERMITTING PROGRAM IN A
               MANNER WHICH HAS A DISCRIMINATORY EFFECT UPON PLAINTIFFS
               BASED ON THEIR RACE, COLOR, AND NATIONAL ORIGIN


         Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000d, provides that no

person in the United States shall be denied the benefits of, or be subjected to, discrimination under



                                                  10
any program or activity receiving federal financial assistance on the grounds of race, color, or

national origin. Section 602 of Title VI, 42 U.S.C. §2000d-1, authorizes federal agencies to

effectuate the provisions of Section 601 by issuing regulations. Pursuant to Section 602, the EPA

has promulgated regulations which require that no person shall be excluded from participation in,

be denied the benefits of, or be subjected to discrimination under any program or activity receiving

EPA assistance on the basis of race, color, national origin. 40 CFR §7.30. The regulations further

prohibit a recipient of financial assistance from using criteria or methods of administering its

program which have the effect of subjecting individuals to discrimination because of their race,

color, or national origin. 40 CFR §7.35(b). A claim under Section 602 of Title VI and the EPA

regulations does not require proof that a defendant acted with discriminatory intent, but rather,

requires proof that a facially neutral practice resulted in a discriminatory effect. Guardians Assoc.

v. Civil Service Comm., 463 U.S. 582 (1983); Powell v. Ridge, 189 F.2d 387, 393 (3d Cir. 1999) .2

        The DEP has discriminated against the African-American and Hispanic residents of

Waterfront South and the adjoining neighborhoods on the basis of race, color, and national origin,

in violation of Title VI and the EPA civil rights regulations. The DEP issued a permit to SLC to

operate a cement grinding facility which will affect the health, safety, and quality of life in

Waterfront South, an environmentally degraded community with a population that is more than

90% people of color. The operations of the SLC cement grinding facility will therefore increase

the disparity between the conditions of this predominately minority community and that of


2
  In Powell, the Third Circuit held that there was a private cause of action to enforce Title VI enforcement
regulations and reaffirmed its earlier decision in Chester Residents Concerned for Quality Living v. Seif,
132 F.3d 925 (3d Cir. 1999), , vac’d and dism’d as moot, 524 U.S. 974 (1998). . The question is now
pending before the U.S. Supreme Court in the matter of Sandoval v. Hagan, 197 F.3d 484 (11th Cir. 1999),
reh. den. 211 F.3d 133 (11th Cir. 2000), cert. granted 121 S.Ct. 28 (2000).
                                                    11
communities in the state of New Jersey which are predominately white. This permitting decision

perpetuates the disparate treatment given to this community by the DEP in prior permitting

decisions. It is also part of the DEP’s practice of permitting a significantly greater proportion of

facilities in communities of color than in predominately white communities throughout the state of

New Jersey. Furthermore, the DEP’s procedures for permit review do not provide for a disparate

impact analysis, meaningful public participation, or other mechanisms that ensure that there is no

disparate treatment of persons on the basis of race, color, or national origin. The DEP has therefore

violated Title VI and the EPA enforcing regulations.

1. The DEP’s actions have a disparate impact on plaintiffs and all Waterfront South residents

       The DEP violated the EPA’s civil rights regulations by discriminating against plaintiffs on

the basis of their race, color, and national origin. The DEP issued permits to SLC to operate a

polluting facility in a neighborhood which is composed almost exclusively of African-American

and Hispanic residents. Ninety-one percent of the residents of Waterfront South and an even

greater percentage in the neighborhoods immediately adjoining the SLC facility are persons of

color. This racial breakdown stands in stark contrast to the demographics of both the surrounding

region and the state as a whole, where people of color represent only approximately 25% of the

population. The operation of the facility will therefore cause the African-American and Hispanic

residents of Waterfront South and the adjoining census tracts to be exposed to greater level of

PM-10 and other air pollutants than non-minority residents of New Jersey in predominately white

communities. It will subject Waterfront South residents to a constant flow of diesel truck traffic

through their community, causing even more air pollution, health and safety hazards, traffic



                                                 12
congestion, and other negative effects on their quality of life to which non-minority residents in

New Jersey are not being exposed. There will be resulting damage to the already poor health of

these residents that white residents in other communities will not experience.

          Furthermore, the siting of this facility in Waterfront South is not an isolated incident, but

just the most recent example of the disparate treatment given to this struggling community by the

DEP. The DEP has granted permits for the Camden County Resource Recovery Facility, a

trash-to-steam incinerator; the Camden Cogen Power Plant, a co-generation facility; and the

Camden County Municipal Utilities Authority (“CCMUA”), a large regional sewage treatment

plant, all located within a few blocks of each other in this small community. Camden Cogen emits

86 tons and the incinerator emits 47 tons of PM-10 annually. Pomar cert. ¶7, Exh. D. 3 The

CCMUA, which until recently contained a very odiferous sewage sludge composting facility, has

blighted the neighborhood because of its intense odors and fumes. The DEP’s granting of permits

to SLC and these other polluting facilities has therefore increased the existing disparity between

the public health, safety, and quality of life of residents of Waterfront South and that of residents

of non-minority communities in the state.

2. The DEP’s method of administration of its permitting programs has resulted in a state-wide
disparate impact upon persons on the basis of race, color, and national origin.

          The DEP’s permitting actions across the state of New Jersey do not follow a random

pattern, nor are they equitable in their outcome. Instead, DEP’s permitting decisions across New

Jersey follow the pattern shown in Camden; they have a discriminatory impact on the basis of race,

color, and national origin.



3
    Other nearby Camden sources of PM-10 are the PneumoAbex Corporation, which emits 36 tons/year, also
                                                   13
        Using U.S. Census Bureau figures and the EPA’s most comprehensive, publicly-available

database, Envirofacts,4 plaintiffs’ expert Dr. Michel Gelobter analyzed the distribution of

EPA-regulated facilities across New Jersey, to determine if there was a pattern which could be

discerned in the distribution of such facilities. Dr. Gelobter used as a baseline U.S. Census Bureau

figures as of July 1, 1990, the most recent data for which Zip Code comparisons are available,

which showed that the statewide percentage of whites is 79.4%, with 20.6% non-whites. Gelobter

cert. ¶15. What he found was “that the state of New Jersey, at both the Zip Code and County level,

shows a strong, highly statistically significant, and disturbing pattern of association between the

racial and ethnic composition of communities, the number of EPA-regulated facilities, and the

number of facilities with Air Permits.” Gelobter cert. ¶24. In layman’s terms, Dr. Gelobter found

a pattern of racially disparate impact in the distribution of polluting facilities in New Jersey.

        There are an average of 36.5 EPA-regulated facilities per Zip Code in New Jersey. Zip

Codes that have a higher percentage of white residents than the state average have an average of

49.6 EPA-regulated facilities. Gelobter cert. ¶18. Zip Codes that have a higher than average

percentage of non-white residents have an average of 92.1 EPA-regulated facilities, significantly

higher than predominately white Zip Codes. In Zip Code 08104, which includes the Waterfront

South community in Camden, there are 131 EPA-regulated facilities, or 359% of the statewide

average of 36.5 facilities. Gelobter cert. ¶18. Dr. Gelobter found that this disparity places the Zip

Code in the 97th percentile for such facilities, meaning that 97% of all Zip Codes in New Jersey


in Waterfront South and G-P Gypsum, located just to the north, which emits 53 tons/year. Pomar cert. ¶7,
Exh. D.
4
  The EPA’s “Envirofacts” database includes the 13 separate databases that comprise all publicly available
data on EPA-regulated facilities – the most comprehensive data publicly available from EPA. Gelobter
cert. ¶13.
                                                   14
have fewer facilities. Gelobter cert. ¶18. Dr. Gelobter also found, using standard statistical tests,

that the odds of this occurring by chance were less than 3 in 10,000. Gelobter cert.¶18.

       Dr. Gelobter also looked at air-polluting facilities, those most similar in their impacts to

SLC. Using the U.S. EPA’s Aerometric Information Retrieval System, Air Facilities Subsystem

(“AIRS/AFS”) database, the publicly available database of air pollution emitting facilities in the

United States, and the U.S. Census data on racial demographics at the county and Zip Code level,

he was able to analyze the distribution of regulated facilities in New Jersey. Gelobter cert.¶14. Dr.

Gelobter determined that in New Jersey Zip Codes with less than the state average population of

non-whites (20.6%), there are an average of 7.8 facilities, compared to those above the state

average population of non-whites which have 14.2 facilities. Gelobter cert. ¶16. Thus, Zip Code

areas with higher than average population of non-whites have almost twice as many AIRS/AFS

facilities per Zip Code than those with below average non-whites. Gelobter cert. ¶16. Looking at

New Jersey Zip Codes in predominately white communities (70% or more white) and

predominately non-white communities (70% or more non-white), Dr. Gelobter found the pattern

held true: Zip Codes that are 70% and greater non-white have an average of 14.6 AIRS/AFS

facilities, while Zip Codes that are 70% and greater white have an average of 8.2 AIRS/AFS

facilities. Gelobter cert. ¶17. There are therefore 78% more AIRS/AFS facilities in Zip Codes of

70% or more non-white population. Gelobter cert. ¶17.

       Focusing this analysis on the Camden area yields even more disparate results: Zip Code

08104, which includes the Waterfront South community of Camden, NJ and several adjoining

census tracts, has 21 AIRS/AFS facilities. Gelobter cert. ¶16. This number of facilities is 270% of



                                                 15
the average in Zip Codes where the population of non-whites is proportionally at or below the state

average percentage of non-whites. Gelobter cert. ¶16. Since the average Zip Code in the state has

7.6 AIRS/AFS facilities, Zip Code 08104’s count represents 277% of the statewide average

calculated independent of racial composition.

       These stark statistics demonstrate that polluting facilities are not equally distributed in New

Jersey, and that something in the way New Jersey permits such facilities has allowed such a

disparate impact to occur, in violation of 40 CFR §7.35(b). Indeed, Dr. Gelobter found the

statistical significance of the disparity so strong, that “for every 10% increase in the percentage of

non-white residents, a Zip Code area would experience an approximately 20% increase in number

of facilities over the statewide average for EPA-regulated facilities (or 7.2 facilities per 10% of

non-white residents in the Zip Code area)”. Gelobter cert. ¶22. The relationship between facilities

and the percentage Hispanic population was even stronger: For every 10% increase in the

percentage Hispanic population, the number of facilities in a Zip Code could be expected increase

of approximately 45% or 15.9 facilities. Gelobter cert.¶22.

       Plaintiffs have not yet identified which particular aspect of DEP’s permitting program has

caused, or allowed, this disparity to occur across New Jersey, and to bloom with such ferocity in

Camden. However, plaintiffs have demonstrated here that DEP’s permitting actions have a

discriminatory impact on the basis of race, both in Camden and statewide, in violation of the

EPA’s Title VI regulations, 40 CFR §7.35(b).

3. The DEP’s criteria and methods of administration violate EPA’s Title VI enforcement
regulations because they result in discriminatory effects.

       a. The DEP’s exclusive reliance on the NAAQS and other environmental standards in
          permitting decisions led to discriminatory outcomes

                                                 16
       The DEP’s response to the plaintiffs’ civil rights complaints is that there is no adverse

impact to plaintiffs, and therefore no discriminatory effects, because the SLC facility air emissions

are within the established NAAQS and meet other related environmental standards. The DEP

contends that there can be no adverse effect on health from SLC’s particulate emissions, even for

persons suffering from cardiac and respiratory diseases, provided that the emissions do not result

in violation of the current NAAQS for PM-10. This position is contradicted by all of the

established medical evidence. Any measurable increase in fine particulate emissions causes a

noticeable effect on health. Lavietes cert. ¶9, 18. An increase of 10 micrograms per cubic meter of

PM-10 increases the death rate by .51%. Lavietes cert. ¶7, 8. Increases in PM-10 and especially

PM-2.5 levels cause respiratory illnesses and aggravate medical conditions such as asthma.

Lavietes cert. ¶10-17. These effects are present even when the PM-10 levels are well below the

NAAQS. Lavietes cert. ¶9. There is, in fact, no completely safe level of PM-10 at which there is

no adverse effect on health. Lavietes cert. ¶18. The EPA has recognized that the current PM-10

standard is inadequate to protect human health and has proposed a new, stricter health-based

standard for PM-2.5, the more dangerous particulate pollutant. 62 Fed. Reg. 38652 (July 18, 1977).

The Waterfront South area is projected to not be in compliance with that new standard. The added

SLC emissions would result in an even more severe degree of non-attainment.

       In its determination of whether there was an adverse impact the DEP also failed to consider

the non-attainment of the NAAQS for ground level ozone. Residents of this region, particularly the

elderly, children, and persons with respiratory diseases are already experiencing injury to health

from such high ground level ozone levels. Pomar cert. ¶14, Exh. K. The operation of the diesel


                                                 17
trucks for the SLC facility and its other emissions will release precursors5 to ozone that will tend to

increase these ground level ozone concentrations.

       The DEP has itself recognized that ozone and particulates are New Jersey’s two most

pervasive air quality problems and that more measures need to be taken to ensure that health

standards are attained in future years. Pomar cert. ¶ 14, Exh. K. The fine particulates and other

emissions that will be generated by SLC will exacerbate these pollution problems and therefore

pose a very serious threat to the health of the residents of Waterfront South, especially for those

many residents who already experience respiratory ailments. Furthermore, these residents will be

exposed to other pollutants and experience all of the other negative impacts created by the facility,

such as the noise, traffic, safety problems, decrease in property values, blighting effect on their

neighborhood, and loss of self-esteem. Sanders cert. ¶10, 11. The DEP refused to acknowledge the

existence of these numerous adverse impacts. The DEP’s reliance on such limited criteria in

evaluating the permit application resulted in a determination which has a discriminatory effect

upon plaintiffs and other African-American and Hispanic residents of Waterfront South.

       Furthermore, to the best of plaintiffs’ knowledge, based on the review of the permit

documents and related correspondence with the DEP, the DEP has no protocol for evaluating

compliance with Title VI regulations and ensuring that its permitting decisions do not have

discriminatory effects upon persons of color. The DEP’s exclusive reliance on the NAAQS and

related environmental standards appears to the procedure normally utilized by the DEP in

evaluating permits. DEP therefore has no way of meeting its assurances to the EPA that it is in



5
 Volatile organic compounds (VOCs) and nitrogen oxides are precursors to the formation of ground level
ozone. Both are components of diesel truck emissions.
                                                  18
compliance with its obligations under Title VI. The DEP’s use of the NAAQS and other

environmental standards as the sole measure of adverse impact, therefore, constitutes a “criteria or

method of administration” of its programs which results in discrimination against persons on the

basis of race, color, and national origin, in violation of 40 CFR §7.35(b).

       b. The DEP’s failure to provide public notices and information in Spanish had a
          discriminatory effect upon Hispanic persons.

       On July 25, 2000 the DEP placed a notice in the local newspaper, the Courier Post, which

announced a public hearing to be held regarding the permits for the SLC facility. This notice was

only in the English language. At the public hearing on August 23, 2000 the DEP distributed a

public notice and fact sheet about the SLC permit application. These documents were also in

English and the DEP did not provide any translations into Spanish. Pomar cert. ¶3. This failure to

provide Spanish language translations of these documents violated the EPA’s civil rights

regulations, which provide that a recipient shall not restrict a person in any way in the enjoyment

of any advantage or privilege enjoyed by others receiving any service and or benefit provided by

the program. 40 CFR §7.35(a)(3) . The regulations also provide that a recipient of financial

assistance shall not use criteria that subject individuals to discrimination or have the effect of

defeating or substantially impairing accomplishment of the objectives of the program with respect

to individuals of a particular national origin. 40 CFR §7.35(b).

       In Lau v. Nicols, 414 U.S. 563 (1974) the U.S. Supreme Court held that civil rights

regulations of the Department of Health, Education, and Welfare (“HEW”), which are almost

identical to the EPA regulations, required school districts receiving HEW financial assistance to

provide education in the Chinese language to enable Chinese children to have a meaningful


                                                  19
opportunity to participate in the educational programs. Lau at 568. The Court ruled that

discrimination against individuals on the basis of language thus constituted discrimination on the

basis of national origin under Title VI. See also Sandoval v. Hagan, 197 F.2d 484, 507-510 (11th

Cir. 1999), cert. granted 121 S.Ct. 28 (2000), on review by the Supreme Court on other grounds.

       In 1976, two years after the Supreme Court decision in Lau, the U.S. Department of Justice

promulgated a regulation to assist recipients of federal financial assistance seeking to determine

those situations which would require the recipient to publish materials in one or more languages

other than English. This regulations states as follows:

       Where a significant number or proportion of the populationlikely to be directly affected
       by a federally assisted program needs service or information in a language other than
       English in order effectively to participate in the program, the recipient shall take reasonable
       steps, considering the size and concentration of such population, to provide information in
       appropriate languages to such persons. This requirement applies with regard to written
       materials of the type which is ordinarily distributed to the public. 28 CFR §42.405(d)(1) .


       New Jersey election law, N.J.S.A. 19:14-21, provides additional guidance as to when a

state agency should provide information to the public in a language other than English. The statute

requires that in each election district in a county in which 10% or more of the registered voters have

Spanish as their primary language, the election ballot must be printed in both Spanish and English.

As a result of this requirement, all residents of the City of Camden receive election materials in

Spanish and English.

       The six census tracts in the immediate vicinity of SLC contain 3,011 persons of Hispanic

origin, or 16.8 % of the total population. Many Hispanic residents, including plaintiffs Julio Lugo

and Oscar Lisboa, are not able to read in English, but are able to read in Spanish. They would have



                                                 20
attended the public hearing if they had been notified. The DEP was required to give public notice

of the permit application and of the public right to comment. N.J.A.C. 7:27-8.1. By failing to

provide these Hispanic persons with notice and written materials in their native language, the DEP

deprived them of their rights to participate in the permit process, violating their rights under the

EPA’s civil rights regulations, 40 CFR §7.35(b) .

       c. The DEP’s failure to provide a grievance hearing violates EPA’s regulations.

       The EPA Title VI regulations requires recipients of federal funds to provide a procedure for

hearing grievances arising out of claims of violations of the regulations. 40 CFR §7.90. Plaintiffs

requested a grievance hearing on October 4, 2000 on the grounds that the DEP’s process of

evaluating the permit was in violation of Title VI. The DEP never responded to this request.

Plaintiffs therefore assume that either the DEP has no grievance hearing procedures, or that the

DEP determined that its established procedures are not applicable under the circumstances of this

case. As plaintiffs are entitled to a grievance hearing, the DEP has not complied with the

provisions of §7.90.

     B. THE DEFENDANTS VIOLATED SECTION 601 OF TITLE VI BY
INTENTIONALLY DISCRIMINATING AGAINST PLAINTIFFS ON THE BASIS OF RACE,
COLOR, AND NATIONAL ORIGIN.

       Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000d, provides that no

person in the United States shall be denied the benefits of, or be subjected to discrimination under

any program or activity receiving federal financial assistance on the grounds of race, color, or

national origin. To sustain a claim under Section 601, a plaintiff must demonstrate the defendant’s

intent to discriminate. Guardians, supra. at 589-90. The DEP’s course of conduct in this case and



                                                 21
in its other permitting decisions demonstrates that the DEP intentionally and knowingly engaged in

discrimination against plaintiffs.

       In Washington v. Davis, 426 U.S. 229 (1976) and Village of Arlington Heights v.

Metropolitan Housing Development Corporation, 429 U.S. 252 (1977), the United States Supreme

Court examined what proofs are needed to support a claim of intentional racial discrimination.

The Court recognized that in many cases it may not be possible to ever obtain direct evidence of a

party’s actual motives, and found that circumstantial evidence could also be used to establish

intent. The Supreme Court also held that a plaintiff is not required to prove that a challenged

action rested solely on racially discriminatory purposes, or even that a particular purpose was

dominant or primary, as it is rare that a legislature or administrative body operating under a broad

mandate makes a decision motivated by a single concern. However, proof that invidious

discriminatory purpose played a part in the decision must be shown. Arlington Heights at 265.

       In Arlington Heights, the Court enumerated the following factors that could be used to

establish discriminatory intent: 1) the disparate impact of the decision, i.e. whether it bears more

heavily on one race than another; 2) the historical background of the decision, especially if it

reveals a series of official actions taken for invidious purposes; 3) the specific sequence of events

leading up to the challenged decision, which could shed light on the decisionmaker’s purposes; 4)

departures from the normal procedural sequence; and 5) substantive departures, such as when

factors usually considered important by the decisionmaker strongly favor a decision contrary to the

one reached. Id. at 267-68. The Court also noted that the legislative or administrative history may

be relevant to show the intent of the decisionmaking body. The Court further held that in rare cases



                                                 22
there can be such a stark pattern that is unexplainable on grounds other than race, even when the

governmental action in question appears neutral on its face, that proof of the impact alone may be

determinative. Id. at 266. In this case, there is disparate impact on persons of color, the historical

background of the DEP’s decision reveals of pattern of similar discrimination against communities

of color, and the DEP’s knowing and deliberate disregard of the discriminatory effects of its

actions reveal the DEP’s discriminatory purposes. Almost every one of the Arlington Heights

factors is present, demonstrating the DEP’s intentional discrimination.

       In this case, the DEP’s actions in granting SLC its permits clearly had a far greater negative

impact upon African-American and Hispanic persons than upon white persons, as discussed above.

The first criterion of Arlington Heights is therefore satisfied.

       In addition, the DEP has engaged in a historical pattern and practice of making permitting

decisions which result in disparate impacts, both with regard to this particular neighborhood and

throughout the state. DEP issued permits to three other large polluting facilities in Waterfront

South. As demonstrated in Section II.A.2 and detailed in the Certification of Dr. Michel Gelobter,

permitting decisions in New Jersey have led to a systemic pattern of discriminatory impact on the

basis of race, color, and national origin. The DEP also failed to develop or implement criteria and

procedures that ensure there will be no discrimination in its permitting decisions. The DEP’s

historical practices also support a finding of intent.

       Furthermore, the specific events that took place with regard to the SLC permit application

reveal the DEP’s intent. The DEP knew that the residents of Waterfront South and the surrounding

neighborhoods were predominately African-American and Hispanic, and was therefore fully aware



                                                  23
of the disparate impact created by the siting of the SLC facility in Waterfront South. The DEP was

also aware that if it were to conduct a full analysis of the possible disparate adverse effects,

comparing the racial composition, the number of other polluting facilities and contaminated sites,

and the health of the residents of Waterfront South to the conditions found in other, predominately

white communities, such an analysis would reveal that the permitting of the SLC facility would

have a discriminatory impact upon plaintiffs. The DEP also knew of its obligations, as a recipient

of federal assistance, under Title VI. It therefore knew that use of the NAAQS and other

environmental standards as the sole permitting criteria, the failure to consider all of the negative

effects of the facility, and the refusal to conduct an analysis of the disparate impact would be a

violation of Title VI. The DEP, however, intentionally chose to use the NAAQS and related

environmental standards as the sole criteria for determining whether a permit should be issued. It

ignored the plaintiffs’ request for a grievance hearing in which plaintiffs requested that DEP

conduct a full investigation before issuing the permit. The DEP issued the permits to SLC,

therefore, with full knowledge of the unlawful discriminatory impact it would have upon the

plaintiffs.

        The DEP also acted knowingly and intentionally when it refused to provide Spanish

language translations of public documents and thus deprived Hispanic persons of their rights o

participate in the public comment process. DEP knew or had reason to know that 16.8% of the

population in the area were persons of Hispanic origin. The DEP purposefully violated the

Department of Justice (“DOJ”) regulation and the EPA Title VI regulations. The DEP also ignored

very recent notification by the EPA in which it warned recipients of financial assistance to take



                                                  24
reasonable steps to communicate in written documents as well as orally, in language other than

English, when called for by the DOJ regulation, and further stated that failure to provide

documents in languages other than English could constitute a violation of EPA’s civil rights

regulations. Draft Title VI Guidance for EPA Assistance Recipients, 65 Fed. Reg. 39658 (June 27,

2000). The DEP also ignored a DOJ Guidance to recipients of federal financial assistance

regarding their obligation to provide materials in languages other than English, issued just one

week before the SLC public hearing. Enforcing Title VI of the Civil Rights Act of 1964 – National

Origin Discrimination Against Persons with Limited English Proficiency. 65 Fed. Reg. 50123

(August 16, 2000).

       In decisions subsequent to Washington and Arlington Heights, the United States Supreme

Court has recognized the probative value of evidence that a defendant acted with knowledge of the

likely result of its action as a means of proving discriminatory purpose. While voluntary acts and

"awareness of consequences" alone do not necessitate a finding of discriminatory intent, Personnel

Administrator v. Feeney, 442 U.S. 256, 279 (1979) , "actions having foreseeable and anticipated

disparate impact are relevant evidence to prove the ultimate fact, forbidden purpose, “ Columbus

Board of Education v. Penick, 443 U.S. 449, 464 (1979). .

       In Penick, 443 U.S. 464, the Court upheld a finding of intentional discrimination based in

part on foreseeability. The Court recognized that actions having foreseeable and anticipated

disparate impact can serve as evidence of the ultimate fact, the “forbidden purpose” of

discriminatory intent. As stated in the Court’s decision: “Adherence to a particular policy or

practice, with full knowledge of the predictable effects of such adherence upon racial imbalance in



                                                25
a school system, is one factor among many others which may be considered by a court in

determining whether an inference of segregative intent should be drawn” Penick at 464. See also

Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). (Deliberate indifference to

improper or illegal conduct of another with full knowledge of that conduct can amount to

intentional discrimination).

       The Eleventh Circuit, relying on Penick, emphasized the importance of foreseeability in

two cases where intentional discrimination was found in the allocation of municipal resources and

services among neighborhoods, Ammons v. Dade County, 783 F.2d 982 (11th Cir. 1986) and

Dowdell v. City of Apopka, 698 F.2d 1181 (11th Cir. 1983). In these cases the Eleventh Circuit set

forth the following factors as probative of intent: discriminatory impact, foreseeability, legislative

and administrative history, and knowledge. The courts found that a discriminatory purpose can be

found when it was foreseeable that a certain decision or policy, in this case the allocation of

municipal resources, would lead to the outcome of a deprived black residential community. See

also Baker v. City of Kissimmee, 645 F.Supp. 571 (M.D. Fla. 1986), applying the same factors and

finding civil rights violations in another case involving municipal services.

       In addition, in Baker, the court noted that the factor of "knowledge", while perhaps difficult

to disentangle from "foreseeability" and/or "legislative/administrative history" if additionally

present may support a court's findings of intentional discrimination. In that case, the court stated:

“ That [the county’s] actions would result in a discriminatory impact on the residents of the black

community was not unknown to defendants. A brief visit to the black community makes obvious

the need for street paving and storm water drainage control. “ 645 F.Supp. at 588. A visit to



                                                 26
Waterfront South would similarly make obvious the need for environmental protection. As

discussed above, even without this new facility, Waterfront South is visibly environmentally

devastated, with abandoned contaminated sites, smokestacks spewing pollutants into the air,

noxious odors, and high volume of diesel truck traffic. DEP’s willingness to issue the SLC permit

in the face of the existing enormous burden upon the 91% African American and Hispanic

community clearly supports a finding of discriminatory intent.

        DEP’s permitting decision communicates an unconstitutional message to the citizens of

Waterfront South. In cases brought under the First Amendment’s Establishment Clause, the Supreme

Court has held constitutionally impermissible government actions that send a message to members

of a minority group that “’they are outsiders, not full members of the political community.’” Santa

Fe Independent School District v. Doe, 530 U.S. 290, 315 (2000) (quoting Lynch v. Donnelly, 465

U.S. 668, 689 (1984) (O’Connor concurring). It is clear that the Equal Protection Clause similarly

prohibits government actions that stigmatize a racial minority group by communicating that such a

group is not as worthy of the government’s concern as the majority group. As the Court stated in

Strauder v. West Virginia, 100 U.S. 307-308 (1879), the Equal Protection Clause grants racial

minorities “the right to exemption from legal discrimination, implying inferiority in civil society,

lessening the security of their enjoyment of the rights which others enjoy.” Id. at 307-308. More

recently, in decisions concerning the creation of majority-minority voting districts, the Supreme

Court has held that in certain instances, such districts are unconstitutional because of the political

message these districts send to voters. See, e.g. Shaw v. Reno, 509 U.S. 630, 648 (1993) (a

majority-minority district in which voters are widely separated by geographical and political



                                                   27
boundaries “reinforces perception[s]” about racial groups and sends an “equally pernicious” message

to elected representatives).

           Residents of Waterfront South reasonably view DEP as less concerned with their health and

the well-being of their community than with the health and community of all of the white

communities in New Jersey that do not suffer such environmental degradation. When the DEP

granted the SLC permit mindful of the existing environmental and public health conditions suffered

by Waterfront South residents, and particularly ignoring residents’ requests for a study of the

potential for cumulative harm to the residents not take into account by the environmental review,

DEP sent a message to the community that they are outsiders, not full members of the political

community. Santa Fe Independent School District, 530 U.S. at 315. Such a pernicious message

cannot withstand constitutional scrutiny. Shaw, 509 U.S. at 648.

           In this case, therefore, plaintiffs have established almost all of the factors found significant

in Arlington Heights. The obvious disparate impact resulting from the DEP’s issuance of the SLC

permit upon African-Americans and Hispanics, the DEP’s prior history of discriminatory

permitting decisions, the DEP’s knowing disregard of its obligations under civil rights laws, and

the DEP’s decision to issue the permit despite awareness of its discriminatory effects, as

demonstrated by the administrative record of the permit review process, establish that defendants

intended to and did discriminate against plaintiffs on the basis of race, color, and national origin.

The DEP’s issuance of the permits to SLC, therefore, violated Title VI, 42 U.S.C. §2000d.

    III.       PLAINTIFFS WILL SUFFER IRREPARABLE HARM FROM THE DEP’S
               PERMITTING THE SLC FACILITY

             If the SLC cement grinding facility is allowed to commence operations, it will cause


                                                     28
severe, immediate, and irreparable harm to plaintiffs and the other area residents. Most

significantly, the facility will injure the plaintiffs’ health. In addition, the cement plant will greatly

affect plaintiffs’ quality of life, interfere with the their use and enjoyment of their homes, and

create a long-term blighting effect on their community.

          The grinding operations of the SLC facility will emit almost 60 tons per year of very fine

powder, known as PM-10, or particulate matter ten microns or less. Most of these particulates will

constitute PM-2.5, or particles sized 2.5 microns or less. The heavy truck traffic will generate

significant additional amounts of PM-10.

          Substantial medical evidence establishes that fine particulate emissions pose a severe

health risk. Studies show that the level of PM-10 is associated with the rate of death from all

causes and particularly from cardiovascular and respiratory illnesses. A recent study conducted the

Department of Epidemiology and Biostatistics at the Johns Hopkins University School of Hygiene

and Public Health assessed the effects of PM-10 and four other major outdoor air pollutants in 20

of the largest cities and metropolitan areas of the United States, including Philadelphia. Lavietes

cert. ¶7, Exh. B. The PM-10 levels in these cities were generally well below the current NAAQS

for PM-10. 6 The researchers compared 24-hour PM-10 levels with numbers of deaths per day

over a period of seven years, taking into account potential confounding by the other pollutants,

socioeconomic status, and other factors. The study established that the estimated increase in the

relative rate of death from all causes was .51 percent and from cardiovascular and respiratory

causes was .68 percent for each increase in the 24-hour PM-10 level of micrograms per cubic



6
 The EPA’s PM-10 NAAQS 24-hour standard is 150 ug per cubic meter, and the annual standard is 50 ug
per cubic meter.
                                                   29
meter. Lavietes cert. ¶7 , Exh. B. This research corroborated the results of earlier studies, which

had also investigated death rates in relation to PM-10 pollution. Lavietes cert. ¶8. All of these

studies showed a linear, or straight line, statistical increase in risk directly proportional to increased

fine particle concentrations, and a definitive increase in mortality in areas well within attainment

of the NAAQS. The studies therefore demonstrate that any increase in PM-10 increases the death

rate and there is no safe level for fine particles. Lavietes cert. ¶ 18.

          In addition to the risk of premature death, inhalation of fine particulates causes and

aggravates cardiovascular and pulmonary diseases. Lavietes cert. ¶12-17. Fine particles can harm

the respiratory tract. By damaging the lungs and decreasing oxygen flow they cause stress to the

heart and can lead to cardiac failure. Lavietes cert. ¶12. Studies have shown that increases of fine

particulates in the air lead to increase in asthma attacks, as measured by asthma-related emergency

room visits and hospital admissions. Lavietes cert. ¶10. Fine particulate pollution is also linked to

incidence of bronchitis. Lavietes cert. ¶17. In addition, fine particulates cause a variety of other

respiratory symptoms such as cough, running nose, and burning eyes. Lavietes cert. ¶17.

          PM-2.5, the finer particulates, are considered the most dangerous to health. Lavietes cert.

¶19. In response to the studies linking mortality with fine particulates and other health data, the

U.S. EPA proposed new standards to regulate PM-2.5 (cite to fed. Register). The EPA has not

been able to implement the new standards due to legal challenges by industry groups. However,

subsequent studies done in response to the legal challenges, including the work of Johns Hopkins

University, support the earlier findings that PM-2.5 is the most dangerous portion of particulate

matter. Lavietes cert. ¶7.



                                                   30
         In this case, even without calculating the significant truck-generated PM-10 emissions,

the SLC facility will emit PM-10 maximum 24-hour levels of 23.7 micrograms per cubic meter.

Applying the results of the Johns Hopkins study, SLC will cause an increase in the overall death

rate of over 1.2%, and an increase in cardiovascular and respiratory deaths of 1.6%, among persons

in the immediate vicinity of the facility who will experience the maximum impact levels. Lavietes

cert. ¶20. This extreme danger of premature death alone warrants the granting of injunctive relief.

The danger to the residents is made even greater due to the fact that most of the SLC emissions will

be PM-2.5. Pomar cert. ¶15.

         It is clear, therefore, that the particulate emissions from SLC’s stacks will cause injury to

the residents. They are likely to increase the already high rate of asthma. Lavietes cert. ¶21. The

particulates will aggravate the medical condition of those already suffering from respiratory

problems, causing pain and suffering, lost time from work and school, increased numbers of visits

to doctors and emergency rooms, more frequent and longer hospitalization, and greater physical

impairment. Lavietes cert. ¶21.

         In addition to the measurable PM-10 stack emissions, SLC will pollute the air through the

emissions generated by the diesel truck traffic. Approximately 70 days each year trucks will

transport GBFS from Beckett Terminal to the Broadway facility, making 500 deliveries between

the hours of 6:00 a.m. and 11:00 p.m. This results in 1,000 daily truck trips through the area. If the

truck traffic flow is spread evenly throughout the 17 hour period, that would result in a truck

drive-by every 61 seconds. Otherwise, there will even greater truck traffic concentration at certain

times. On the 225 days of the year when trucks are being used only to transport the finished product



                                                 31
out of the facility, there will be 183 daily truck trips out of the facility site. Since the facility will

operate 365 days a year, the truck flow will be constant. Pomar cert. ¶11, Exh. I.

          Truck tailpipe emissions produce further PM-10 pollution, thus creating even greater

danger to health. The emissions also generate hydrocarbons, carbon monoxide, and other toxic

chemicals, including benzene, butadiene, and formaldehyde. Scientific evidence has shown that

truck tailpipe emissions are carcinogenic. Lavietes cert. ¶22. Furthermore, the emissions of

nitrogen dioxide and volatile organic compounds generated by diesel trucks contribute to the

production of ground level ozone. Pomar cert. ¶14, Exh. K. Ozone pollution aggravates respiratory

ailments and causes discomfort through irritation of eyes, lungs and breathing passages. There

have been demonstrated links between ozone levels and death rates. Lavietes cert. ¶23. Camden is

in an area already rated as severe for non-attainment of the health-based ozone levels mandated by

the EPA. Pomar cert. ¶14. Greater diesel truck traffic in this area will likely result in higher

concentration of ground level ozone in the region.

          The harm is particularly acute because the health of many residents of Waterfront South

is already poor. Many of the plaintiffs, their children, and other neighborhood residents suffer

from asthma. As discussed above, PM-10 aggravates asthma. In general, persons of poor health

are likely to suffer immediate effects of pollution such as exacerbation of preexisting medical

conditions. Lavietes cert. ¶22. The increased pollution from the SLC cement facility presents a

particularly severe danger for the residents of this community.

          There is no question, therefore, that the operation of the facility will endanger the health

of plaintiffs and other area residents. The grant of injunctive relief is necessary to protect against



                                                    32
this immediate and serious injury.

           The plaintiffs will also suffer other forms of irreparable harm, in addition to the damage

to their health, if injunctive relief is not granted. The massive volume of truck traffic will have an

immediate and significant effect upon health, safety, and quality of life. The trucks will generate

noise and vibrations, interfere with the flow of traffic, create safety hazards for both other drivers

and pedestrians, and damage streets and the foundations of houses. The truck traffic and the very

presence of the SLC facility will also create an irreparable blighting effect on the community.

Once the facility is operating, the perception will be created that the facility has become a

permanent part of the neighborhood, and this perception will likely cause a lasting effect on the

reputation and self-image of the area.

    IV.      THE PUBLIC INTEREST AND BALANCING OF HARMS FAVOR AN
             INJUNCTION

          Once a moving party has established the threat of irreparable harm and the likelihood of

success on the merits of the claim, the court must weigh the relative harms that would result from

the issuance or denial of the injunction. In this case, the balance clearly supports granting

injunctive relief.

          While plaintiffs are threatened with irreparable harm, the defendants will not be harmed at

all by the injunction. The injunction would only require the DEP to meet its obligations under Title

VI and other civil rights laws. It is not contrary to the interests of the agency to obtain court review

of its permitting procedures to ensure that they comply with federal civil rights law. Furthermore,

the DEP is a public agency charged with protecting the health and safety of the residents of this

state. This injunction furthers that purpose by protecting the health and safety of the residents of


                                                  33
Waterfront South. In addition, it is in the interests of the DEP, as a recipient of federal financial

assistance, to ensure that its federal funding is not jeopardized by violating the EPA's civil rights

regulations.

        Balancing the interests of the public and other parties also weighs in favor of injunctive

relief. The underlying basis for the plaintiffs' claim is not some personal gain, but the protection of

the health and safety of the 2,000 residents of the Waterfront South neighborhood and the 15,000

Camden City residents living in the immediately surrounding area. The injunction would also

vindicate the civil rights of these residents. The grant of the injunction thus serves a compelling

public interest.

        It is only SLC that would be adversely affected by the granting of the injunction, as the

facility is almost ready to commence operations. The potential harm to SLC, however, cannot

outweigh the important public interest being served. This is particularly true because SLC

assumed the risk. SLC knew when it selected the site that the Waterfront South neighborhood was

composed almost entirely of African-American and Hispanic persons and that it was heavily

burdened with contaminated and polluting industries. SLC also was fully aware of the possibility

that civil rights claims would be raised by the plaintiffs even before they completed their permit

application, as residents voiced concern about the facility at numerous meetings held by SLC in the

neighborhood.

        Furthermore, SLC was granted its "pre-construction" permits only three months ago. If it

had waited to receive its permits before beginning construction, it would not be harmed by the

issuance of an injunction such a short time after receiving the permit. SLC made the decision,



                                                  34
however, to begin construction while the permit review was pending. This decision was made with

full knowledge of the risks. The DEP notified SLC in September of 1999, prior to the

commencement of construction, that because of the demographics of the area, an environmental

equity analysis may be needed as part of permit review. Pomar cert. ¶5, Exh. B. DEP also warned

SLC when it allowed the start of construction that there is no guarantee that the DEP would grant

the operating permits. Pomar cert. ¶9, Exh. G. SLC was also aware that under New Jersey law,

while an applicant is allowed to begin construction prior to the issuance of the permit, the statute

and regulations expressly state that any costs incurred by an applicant in connection with such

construction may not be used by the applicant as grounds for an appeal of the department’s

decision on the permit application. N.J.S.A 26:2C-9.2J; N.J.A.C. 7:27-8.24. They should similarly

not serve as a basis for limiting the public’s right to challenge the issuance of the permit.

       SLC was repeatedly put on notice during the course of the permit review process that

plaintiffs intended to challenge the DEP's actions on civil rights grounds if the DEP decided to

grant the permit. Environmental justice concerns were raised at community meetings and at the

public hearing on August 23, 2000. Pomar cert. ¶13, Exh. K. The issue was discussed in the DEP's

responses to the public comments. Pomar cert. ¶13, Exh. K. The filing of the administrative

complaints with the EPA and the DEP received a good deal of local press coverage. Newspaper

reports included responses by SLC representatives to the civil rights complaints. One

representative was quoted as recognizing that Waterfront South may have had a history of being

subject to environmental racism.

       SLC has been constructing the facility since November of 1999, so construction was near



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completion by the time of the issuance of the permit. Plaintiffs are bringing this action after the

issuance of the permit because the DEP failed to respond to the grievance complaint they filed

before the permits were granted. Plaintiffs have filed the action promptly, approximately three

months after learning of DEP’s final decision. They have not significantly disadvantaged SLC by

this slight delay, and the amount of investment made by SLC during this 90-day period is

presumably a very small portion of its overall costs. In addition, the delay that would be caused by

the grant of preliminary injunctive relief pending trial would not be significant in light of the

overall length of time of this project. Although some discovery will be needed, many of the facts

in this case are based on documentary evidence and will most likely not be in dispute. There

should not be extensive delay, therefore, before the case is heard on the merits.

        If plaintiffs’ request for relief was to be denied due to SLC’s financial interests in this

project, the plaintiffs would be denied their only opportunity to challenge the issuance of an

unlawful permit. Plaintiffs have used every available opportunity to assert their legal rights. They

communicated their concerns through correspondence and meetings with the DEP. They

participated in the public comment process. They filed an administrative complaint with the DEP

prior to the issuance of the permit, requesting a grievance hearing. The plaintiffs could not bring

action against the DEP for violation of the law until the DEP made evident that it was ignoring the

administrative grievance and issued the permit. Plaintiffs are filing this action a very short time

after DEP’s final agency decision, well within the two year statute of limitations for filing a Title

VI claim.7


7
 The circuit courts which have addressed this issue have held that the statute of limitations for Title VI
actions is the same as that for personal injury suits. See e.g.Rozar v. Mullis, 85 F.3d 556 (11th Cir. 1996);
Egerdahl v. Hibbing Community College, 72 F.3d 615 (8th Cir. 1995); Taylor v. Regents of Univ. of
                                                     36
        The interests of SLC, therefore, cannot take precedence over the need to protect the health

and safety and enforce the civil rights of plaintiffs. SLC brought on whatever harm the injunction

could cause it through its own actions. As the interests of the public clearly support the grant of an

injunction and there is no harm to the defendants, injunctive relief is warranted.

IV. PLAINTIFFS REQUEST THAT SECURITY BE WAIVED.

        This Court has discretion whether to order posting of a bond when granting an injunction.

Temple University v. White, 941 F.2d 201 (3d Cir. 1991), cert. den. sub. nom. Snider v. Temple

University, 501 U.S. 1032 (1992). In Temple University, the Third Circuit adopted a test for

waiver of a bond requirements which requires the court to first consider the possible loss to the

enjoined party together with the hardship that a bond requirement would impose on the applicant.

Special consideration must be given to suits to enforce important federal rights or public interests,

and the court must consider the impact that a bond requirement would have on enforcement of such

a right, in order to prevent undue restriction of it. In Temple University, the bond requirement was

waived because the insolvent applicant would not have been able to post a bond, no risk existed for

the defendant, and the applicant was acting clearly in the public interest, preserving its role as a

provider of medical services to low-income patients. See also McCormack v. Township of Clinton,

872 F.Supp. 1320 (D.N.J. 1994) (bond requirement waived in case challenging township

ordinance restricting political signs because township is unlikely to suffer any loss, imposition of

more than a nominal bond would constitute a severe hardship to plaintiff, and vindication of a

constitutional right is both a significant right and matter of tremendous public significance).



California, 993 F.2d 710 (9th Cir. 1993), cert. den. 510 U.S. 1076 (1994) . The statute of limitations in New
Jersey for personal injury actions is two years. N.J.S.A. 2A:14-2.
                                                     37
       In this case, the DEP would incur no financial harm by the grant of the injunction. The

plaintiffs are very low-income persons, eligible for free legal services. Pomar cert. ¶20. The

organizational plaintiff, SCCIA, has no financial resources. Pomar cert. ¶20. Requirement of

anything other than nominal security would render it impossible for plaintiffs to obtain relief. The

plaintiffs are seeking to vindicate important civil rights and protect the public’s health and safety.

Pursuant to the standards set forth by the Third Circuit in Temple University, security should be

waived.

                                          CONCLUSION

       For the foregoing reasons, plaintiffs request that this Court order the DEP to rescind the

permits issued to SLC until a determination is made on the merits of plaintiffs’ claims.



                                                       Respectfully submitted,

                                                       _____________________
                                                       OLGA D. POMAR, ESQ.
                                                       CAMDEN REG. LEGAL SERVICES
                                                       Attorneys for Plaintiffs




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