On June 5, 2010, as families of Wilmington, California, cleared their breakfast tables and slowly began the day, an explosion rattled their windows. The loud boom was a signal for Jesse Marquez, a lifelong resident of the waterfront town, to yank his car's steering wheel towards the sound.
Unfortunately, this wasn't the first time that Marquez heard something like this in his southern California neighborhood. When he was just 16, the Fletcher Oil refinery across the street from his house caught fire and exploded. The explosion was so powerful that Marquez's family and many of his neighbors were knocked off their feet; more than 300 people suffered first-, second and third-degree burns.
No one was burned in the June 5th explosion, but that day Marquez did discover a giant plume of black smoke rising from a fire at the local 'Pick Your Part' junkyard—the final resting place for many of the town's old cars, trucks and other vehicles. The fire, most likely sparked by the puncturing of a lawnmower gas tank, took more than 30 hours to put out due in part to a lack of fire hydrants and road access for firefighters.
Along with black smoke, the explosion released particulate matter, dioxins and heavy metals across a town that's already so plagued by industrial pollution from oil refineries and the nation's busiest container port that it's infamously known as the "Diesel Death Zone." Weeks after the fire, residents still had difficulty breathing, the taste of smoke lingering in their mouths.
'Pick Your Part,' which processes and recycles scrap auto parts, is just one of thousands of facilities across the U.S. that recycle about 1.5 million tons of hazardous waste generated by steel, chemical, pharmaceutical and other industrial companies each year. Often sited near residential areas, these facilities are repeat offenders when it comes to polluting their neighborhoods, whether through explosions or just day-to-day operations.
Now, thanks to a Bush-era loophole given to the hazardous waste recycling industry, many of these facilities are operating under the federal radar, which means that when shattering noises, metal sparks in the air and the stench of industrial smoke become regular occurrences in these fence-line communities, there goes the neighborhood. Earthjustice, together with a number of environmental justice and public health groups, is fighting to close the loophole.
"The government is not doing a good job of regulating these facilities," says Marquez, who, as founder of the Wilmington Coalition for a Safe Environment, has faced down a number of industrial foes in his town. "This is what happens to a community when there are either no rules or they aren't enforced."
The Environmental Protection Agency's role under the Resource Conservation and Recovery Act is to ensure that hazardous waste recycling facilities abide by strict regulations meant to keep neighboring communities safe from spills, midnight dumping and poor management practices that contaminate the air, soil and water. Over the last few decades, however, the agency has been providing piecemeal exemptions to some industries, like scrap metal recyclers. Recycling scrap parts is generally good for the environment, but the actual art of transforming items like old TVs and dump trucks, many of which are coated with or made of toxic chemicals, into recyclable products often requires high heat and heavy machinery to vaporize, shred and break down materials. This, in turn, can release hazardous pollutants into the air and water.
Though there are responsible recyclers that reduce their impact by taking preventative measures like using sound-insulated walls, watering systems to eliminate dust, and safe and secure storage for hazardous materials, hazardous waste recycling is a notoriously unstable and dangerous industry—a fact that the EPA itself has acknowledged. There are more than 200 contaminated sites from hazardous waste recycling operations across the country, including more than 100 Superfund sites. Much of this contamination occurred when recycling operations were exempted from complying fully with federal safety regulations.
But rather than tighten restrictions for hazardous waste sites, in 2008 the Bush administration passed an eleventh-hour rule that effectively eliminated federal oversight of the notoriously reckless industry. Suddenly, chemical and industrial waste that had been considered hazardous for decades was innocuous enough to be stored, transported or processed without federal oversight. The change was made despite protests from state environmental regulators, the public, environmental groups and some responsible corporations.
More than 5,600 facilities involved in hazardous waste recycling are able to take advantage of the loophole. Together, these facilities handle some of the most dangerous chemicals known to man, such as benzene, toluene and perchlorate that cause cancer, birth defects, lupus and immune disorders; and metals such as lead, hexavalent chromium, mercury and arsenic, which are potent neurotoxins and carcinogens.
"This loophole is the largest hazardous waste rollback since laws were passed in 1976 to protect the public from hazardous waste," says Earthjustice attorney Lisa Evans, who specializes in hazardous waste law. "Before this change, these facilities had to follow strict rules designed to keep communities safe. But not anymore."
Thanks to the loophole, each hazardous waste recycling facility is expected to save approximately $17,000 per year, a mere drop in the bucket when compared to the billions in profits that the industry reaps annually. The public, meanwhile, picks up the million-dollar tab for cleaning up contaminated sites. According to the EPA, 82 percent of the sites contaminated by hazardous waste recycling needed public funds for cleanup.
In 2009, Earthjustice, together with the Sierra Club, challenged the midnight rulemaking by the Bush administration in federal court. The lawsuit, coupled with broad-based citizen action, successfully pressured the federal EPA in 2011 into proposing changes to the hazardous waste rule, thereby reinstating some of the strict standards of the original regulations, as well as removing long-standing dangerous exemptions for many other hazardous waste recyclers.
And, in response to new data provided by Earthjustice on the potential environmental justice impacts that come from the rule, the EPA agreed for the first time to complete an environmental justice analysis of a regulatory proposal. The analysis confirmed what was already evident to many communities across the country—that the hazardous waste loophole disproportionately impacts low-income and minority neighborhoods. In fact, it was the "recycling" of hazardous waste in the early 1980s that launched the environmental justice movement in Warren County, North Carolina. There, communities found themselves the unwitting hosts to PCP-contaminated soil dumped in a rural, predominantly African-American county.
There are more than 200 contaminated sites from hazardous waste recycling operations across the country.
"This loophole redistributes extremely harmful toxic substances to places where oversight is already lax or nonexistent," says longtime environmental justice advocate Vernice Miller-Travis.
Though the EPA was legally obligated to issue a final rule in January 2013, the agency sought a 4-month extension, further delaying justice to impacted communities. Almost 80 facilities in Idaho, Illinois, Iowa, New Jersey, Pennsylvania, Puerto Rico and the U.S. Virgin Islands have already notified the EPA that they will take advantage of the hazardous waste loophole. Many are chronic violators located in communities where low-income populations and people of color are disproportionately represented, which make them precisely the facilities that raise the greatest public health and environmental justice concerns. Meanwhile, state regulatory agencies and thousands of other hazardous waste facilities are closely watching the EPA's actions before they, too, jump into the loophole fray.
In February of 2013, more than 100 organizations and individuals wrote to the EPA, asking that the agency finalize the proposed rule and close the regulatory gaps created by the 2008 loophole. Though the proposed rule goes a long way toward re-establishing stricter guidelines for hazardous waste recycling, the groups argue that it must go even further in protecting communities and industry workers from toxic hazardous waste. This is especially true as increasing numbers of recycling facilities set up shop near people's backyards to meet the ever-growing demand for scarce and costly materials like aluminum, lead and steel.
"This is a critical issue,"says Miller-Travis. "The health of thousands of communities across the country hangs in the balance."