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Environmental Justice and the NIMBY Principle

By Roberta C. Barbalace

Whenever a community is faced with the prospect of a hazardous waste facility being located in its midst, the response is usually, "Not in my back yard!" That response has been dubbed the "NIMBY principle." Such reactions are usually governed by visions of hazardous waste dumps of days gone by and of rusty dented drums oozing hazardous liquids into the environment. Those visions were all too real in the past, and remnants of these situations still exist. Were it not for modern, state of the art disposal facilities, there would be no hope of these visions ever becoming a thing of the past. The NIMBY principle, however well meaning it may be, prevents the construction of new environmentally sound sites, and forces HW facilities to be built upon pre-existing, already contaminated sites that are frequently located in depleted neighborhoods. Often the geology of these locations is less favorable for containment than new sites would be. We get stuck with them, however, because they are already grandfathered into existence.

In 1983 the NAACP protested the siting of a hazardous waste landfill in a predominantly black neighborhood. In 1987 Benjamin Chavis, executive director of the United Church of Christ (UCC) Commission for Racism and Justice and later the Executive Director of the NAACP coined the term "environmental racism." He pointed to a study reported by the UCC "Toxic Wastes and Race in the United States." According to that study, "race is the most significant factor in determining the location of hazardous waste facilities."

While the report probably had substantial validity, it was skewed by tunnel vision. The report failed to consider what came first, the facility or the demography of the area. Most hazardous waste sites are located on property that was used as a disposal site long before modern technologies were available. The communities around these sites are typically economically depressed as a result of past activities. Poor people may be forced to live there because of economic constraints. It is unfair to blame the "siting" of these particular facilities to the current demography of the area. When the study cited by Chavis was repeated, the results indicated that 76% of the landfills were located in predominantly white facilities. It is unlikely that certain communities were purposely selected for a hazardous waste disposal site because of their ethnic demography. It is hard to believe that genocide or other sinister plot was behind the selection of most hazardous waste facilities. For the most part decisions were made on the basis of economics, geological suitability and the political climate. The problem is that nobody stopped to consider the ethnic constituents of the community. In most cases it was more an error of insensitivity than vengeance.

The study also failed to consider the fact that siting of new facilities is hampered by other constraints. A site must have a soil type and geological profile insuring that hazardous materials will not find their way into the aquifer. Some pre-existing zoning ordinances exclude hazardous waste facilities from many neighborhoods. Cost of land also dictates where a facility could be located. Putting all other considerations aside, the mere cost of a site in Beverly Hills would make it economically unfeasible.

In an ideal environment there would be no hazardous waste facilities. The problem is that we don't live in an ideal environment. We live in a world that we inherited from our ancestors. There are a hundred years worth of hazardous materials that our ancestors buried and have become our responsibility. We also live in an industrialized society. We all wear clothes, drive cars and live in homes made of wood, steel, aluminum, plastics etc. and we use cleaning products, medications and cosmetics. Industry necessarily produces waste in the manufacture of our basic needs. Until some new technology is found for dealing with or eliminating hazardous waste, disposal facilities will be necessary to protect both humans and the environment. All humans who play a part in producing hazardous waste must share the burden of our society's waste, not just the poor and minorities.

Some hazardous waste companies have contended that they do not "target minority neighborhoods." Others, such as Waste Management accept the premise that for whatever reason, there is a disproportional distribution of environmental assets and liabilities among racial groups, minorities and economically depressed communities.

Michael Girrard of Arnold and Porter Law Firm and the Environmental Law Section of NY State Bar Association devised a concept for selecting sites for new hazardous waste facilities. Most communities and states reject the idea of having a hazardous waste facility in their midst because they feel that it will endanger their health and devalue their property. Some communities have seen such a facility as a way of improving their economy and quality of life. They have volunteered to allow such sites to be constructed only to have the state refuse on the basis that they would bear a disproportionate share of the total waste produced in the United States. Again, such views are usually the result of tunnel vision. When all forms of hazardous waste are considered: chemical, radioactive, biomedical and recyclables, it usually becomes obvious that while waste is entering the state from other places, much waste is going in the other direction to other states.

Many communities have benefited from a partnership of a HW facility. When CWM acquired the Emelle Facility in Alabama, the county was struggling with illiteracy and infant mortality that were among the highest in the nation. The landfill provided jobs and revenue that ultimately reduced both illiteracy and infant mortality rates (the latter by 1/2). ChemNuclear has always had a good working relationship with Barnwell, South Carolina. Most residents seem to agree that they are better off as a result of the low level radioactive waste facility.

Girrard suggests that a reverse Dutch Auction as defined by Herbert Inhaler be utilized for finding a "home" for new hazardous waste facilities. The auctioneer would propose a compensation to be offered to a community that would accept a HW facility. That bid (say $10 million) would be advertised for a month. If there were no bids, it would be raised to $20 million for a month then to $30 million. Once a bid was received, bidding would stop until the proposed site had been studied. The state would provide the bidding community with the funds to hire an attorney to oversee the study. Girrard suggested a rather elaborate referendum procedure to include all individuals living within a specific radius of the facility and a second referendum to involve residents of the county in which the site is located. Obviously the site would have to survive needs assessment, geological considerations and other studies. It would, however, assure that the facility would be "wanted" in the place where it was built. The only question would be whether Girrard's plan would achieve environmental justice or entice an impoverished community to accept something that they didn't really want in order to achieve certain economic advantages.

The problem of environmental injustice will not be solved over night, but sensitization of an industry and a society to its existence will make a difference in how HW sites are selected in the future.

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