No wonder the folks at Chemical Waste Management Inc. were pumped up after winning approval in January to build California's first commercial toxic-waste incinerator. Since 1987, they had been haggling with state and county officials to get permission to burn hazardous waste at their Kettleman Hills dump site in the rural San Joaquin Valley.
But weeks after winning the nod, the nation's largest hazardous-waste company, the state, and the county were slapped with a novel suit alleging they had discriminated by placing the incinerator near mostly Hispanic Kettleman City. Filed by People for Clean Air & Water, the suit claims the Oak Brook (Ill.) company's decision was part of a national pattern of siting hazardous-waste facilities near minority areas.
PROFIT PLUNGE. Lawsuits are routine in the $10 billion hazardous-waste business. But this one is unusually worrisome. The suit marks one of the first uses of the civil rights laws to fight a waste facility. If successful, it would give activists another weapon to attack "Lulus"--locally unpopular land uses. "We are taking this lawsuit very seriously," says Chem Waste Senior Counsel Philip L. Comella.
Chem Waste hardly needs more woes. On Apr. 16, it reported a 31% plunge in first-quarter earnings, to $24 million. Last year, it agreed to pay the Environmental Protection Agency a record civil penalty--$3.75 million--for polluting at its Chicago South Side facility. And the EPA just disclosed its intent to fine Chem Waste $7.1 million for improprieties at its landfill in Model City, N. Y.
At a minimum, the Kettleman suit could delay construction of the facility. Kay Hahn, a Chicago Corp. analyst, estimates that the incinerator would burn 100,000 tons of toxic waste annually and add $25 million to Chem Waste's $1.1 billion in yearly revenues. She says the incinerator is key to the company's long-term strategy because federal rules last year began barring untreated land disposal of hazardous wastes. Now, it must ship its untreated waste in California to another state to be processed.
While the Kettleman suit tests the theory of "environmental racism," the issue isn't just local. The EPA is studying whether minorities bear the brunt of the nation's toxic pollution. And studies by the General Accounting Office, the United Church of Christ, and others show that waste sites are mostly in black or Hispanic communities.
Sometimes poor areas welcome the sites--they bring jobs and more taxes. But mostly, "it's a pattern of picking the path of least resistance," argues Robert D. Bullard, a University of California at Riverside professor. "Minority communities are the least likely to fight."
Chem Waste doesn't dispute that its incinerator sites are in largely minority areas (table). But it says it didn't engage in discriminatory siting, because the sites had incinerators or landfills when it bought them.
PROTRACTED BATTLE. Chances are Chem Waste will defeat the civil rights claims. In the only prior case alleging civil rights violations over a dump siting, the plaintiffs failed in 1979 to prove the company intentionally discriminated. But even if the industry avoids such awards, it can expect more battles. "We're just not ready to accept them at their word that these incinerators are a safe method of disposal," says plaintiff Joe Maya.
In one sense, the Kettleman suit is just a variation of the "not in my backyard" syndrome. The poor and minorities, like everyone else, don't want to live next to toxic dumps. And that's a key reason few incinerators have been built lately--despite federal laws designating incineration as the preferred destruction method for most toxic waste. Building the sites near nobody's backyard would seem to be the optimal solution. But even that's no guarantee: A few years ago, Chem Waste abandoned plans to burn toxic waste at sea because of environmentalists' protests. A more practical fix? Set national policies for deciding where to put the Lulus.