Hearings - Testimony
 
Subcommittee on Superfund and Waste Management
Impact of Certain Government Contractor Liability Proposals on Environmental Laws
Tuesday, November 8, 2005
 
Dr. Beverly Wright
Founder and Director Deep South Center for Environmental Justice

Good morning Mr. Chairman. I am Dr. Beverly Wright, Director of the Deep South Center for Environmental Justice at Dillard University, formerly at Xavier University. Regrettably, both of these Historically Black Colleges are underwater now and temporarily closed due to Hurricane Katrina. I am also here today representing the National Black Environmental Justice Network (NBEJN).

Thank you for the opportunity to testify before the Subcommittee on critical issues of concern in the aftermath of the hurricanes. My professional and personal experiences of growing up, living and working in the City of New Orleans greatly influence my perspective and testimony.

Who We Are

The Deep South Center for Environmental Justice (DSCEJ), at Dillard University in New Orleans, formerly at Xavier University of Louisiana, is now temporarily relocated in Baton Rouge, Louisiana.

The Deep South Center was launched in 1992 in collaboration with community environmental groups and other universities within the southern region to address environmental justice issues. DSCEJ provides opportunities for communities, scientific researchers, and decision makers to collaborate on programs and projects that promote the rights of all people to be free from environmental harm as it impacts health, jobs, housing, education, and general quality of life. A major goal of the Center is development of minority leadership in the areas of environmental, social, and economic justice along the Mississippi River Chemical Corridor. The Deep South Center for Environmental Justice is a powerful resource for environmental justice education and training.

DSCEJ has developed and embraces a model for community partnership that is called “communiversity.” The essence of this approach is an acknowledgement that for effective research and policy-making, valuable community life experiences regarding environmental impacts must be integrated with the theoretical knowledge of academic educators and researchers. The Deep South Center for Environmental Justice has three components in terms of reaching our objectives: (1) research and policy studies, (2) community outreach assistance and education; and (3) primary, secondary, and university education.

The National Black Environmental Justice Network was founded in New Orleans, LA in December 1999. NBEJN members founded the organization in New Orleans because we felt then, as now, that Louisiana and the Chemical Corridor between the City and Baton Rouge are under siege from and epitomize environmental and economic assaults. These assaults are costing Black people their very lives. NBEJN believes in the sacred value of every human life regardless of race, ethnicity, religion or socioeconomic status. We see in the tragedy of Hurricane Katrina, Hurricane Rita and the aftermath a unique opportunity to shape the conversation and dialogue about rebuilding of New Orleans and the Gulf Coast region with the goals of environmental and economic justice for everyone.

Target Area and Population Served

DSCEJ is national in scope with emphasis on the Mississippi River Chemical Corridor and Gulf Coast Region and global emphasis on communities impacted by the petrochemical industry. The major populations served include people of color with special concentration on African Americans and the African Diaspora, students and faculty at Historically Black Colleges And Universities/Minority Serving Institutions (HBCU/MSI) and public school teachers in urban areas. DSCEJ has forged collaborations with other major research institutions and governmental agencies that can assist in the development and implementation of the center’s work.

Center Objectives

DSCEJ principal objectives include: (1) development of minority leadership in the field of environmental justice; (2) development of culturally sensitive training models for minority residents in at-risk communities; (3) development and distribution of culturally sensitive environmental justice education materials and training modules; (4) increasing environmental justice literacy among college students at HBCU/MSI’s; (5) development of a pipeline creating a new generation of environmental justice leaders at HBCU/MSI’s; (6) development and implementation of a K-12 teacher training program in environmental justice; (7) conducting research to determine the impact and extent of toxic exposure for minority communities as it affects health and the environment; (8) investigating means of addressing these problems (i.e., brownfields redevelopment, toxics use reduction, climate change, clean production and green chemistry, and economic development; and (9) creating linkages between impacted communities, scientific researchers, and government officials to address environmental justice issues as they impact health, jobs, housing, and overall quality of life.

The Katrina Aftermath

As the floodwaters recede in New Orleans and the Gulf Coast region, it is clear that the lethargic and inept emergency response immediately following this devastating storm was the real disaster that nearly overshadowed the actual storm. We were all left nearly paralyzed in front of our television sets completely unable to continue with our daily lives watching the unbelievable events unfold right before our eyes. Americans were shocked beyond belief that this could happen in America, to Americans. It also raised lingering questions and doubts about our overall security. Is government equipped to plan for, militate against, respond to, and recover from natural and manmade disasters? Can the public trust government’s response to be fair? Does race matter?

Examination of historical data reveals that emergency response reflects the pre-existing socioeconomic and political structures of a disaster area and is based on race and class differentials. Generally communities of color receive less priority in response time than do their white counterparts where emergency response is required. We can assume that this differential response will occur in all areas relative to the resolution of the aftermath of Hurricane Katrina.

Environmental Damage

New Orleans and outlying areas suffered severe environmental damage during Katrina, the extent to which has yet to be determined. The post-Katrina New Orleans has been described as a “cesspool” of toxic chemicals, human waste, decomposing flesh and surprises that remain to be uncovered in the sediments. Massive amounts of toxic chemicals were used and stored along the Gulf Coast before the storm. Literally thousands of sites in the storms path used or stored hazardous chemicals, from the local dry cleaner and auto repair shops to Superfund sites and oil refineries in Chalmette and Meraux, La, where there are enormous stores of ultra-hazardous hydrofluoric acid. In the aftermath of the storm some sites were damaged and leaked. Residents across the Gulf Coast and the media reported, “oil spills, obvious leaks from plants, storage tankards turned on end and massive fumes.”

Short-term rebuilding objectives must not outweigh long-term public health protection for all Americans and the environment they depend upon. Some of the legislative proposals now under consideration in the aftermath of Katrina do not adhere to this principle. Congress must act now to protect our most vulnerable populations and preserve our most unique and irreplaceable resources. It is imperative that Congress responds quickly and effectively to the devastating aftermath of Hurricanes Katrina and Rita. It is also important, to temper our haste to rebuild with a strong commitment to public health and the environment. Moreover, the public has a right to clean air and water and it must be protected. No law should ever move forward that would in any way sacrifice these principles.

Have we learned anything over the last 40 years, since Hurricane Betsy struck, that should guide our decisions after Hurricanes Katrina and Rita? Much of the proposed legislation concerning rebuilding the Gulf Coast region strongly suggests that we have not. In fact, it seems that some are using the crisis of Hurricane Katrina to advance their political and policy agenda, including weakening, waiving and rolling back public health, environmental justice and environmental laws and regulations.

It is ironic that the tragedy of Hurricane Katrina is being used to justify sweeping waivers of public health, safety and environmental laws. The Gulf Coast Recovery Act (S.1761) would leave many citizens without a remedy against contractors that cause irreparable harm to the air and water. The bill gives unprecedented legal protection to contractors being paid for work related to Katrina in areas of rescue, recovery, repair and reconstruction. The bill is far reaching in that these protections do not only apply to Katrina contractors; under the bill, they will also apply to contractors in all future disasters that result in at least $15 billion dollars of federal assistance.

The Gulf Coast Recovery Act, while designed to help victims of Katrina, could very well end up helping everyone but the victims in the long run. S.1761 is particularly egregious to low income and minority communities in the Gulf Coast Region. All of the limitations apply only to actions brought by private citizens. The section 4 limitation on filing a lawsuit is specifically limited to “private parties” and section 5(e) specifically provides that nothing in that section limits an action that any governmental entity may bring. I thought that the government’s role was to protect the citizenry. This bill (S.1761) seems designed to do just the opposite.

By eliminating the threat of liability for contractors you in effect remove an essential protection for the public. Where there are no consequences there are high risk and general disregard for the public’s safety.

This bill seems to not be so well thought out. The actions taken by this bill in my opinion, aptly depicts the moral of the old adage of “throwing out the baby with the bathwater.” We should remember that, in this case, it is not the contractors who are the victims. Powerful corporations with huge government contracts will make millions in profit from the Katrina tragedy. The payments will be made with our tax dollars. This bill S.1761 should be rejected by the Senate. In essence it will ultimately defeat the overall purpose of cleaning up the Gulf Coast and setting the road for its recovery. If contractors no longer fear legitimate legal liability, where is the incentive to do good work? And, when the dust settles with possibly untold numbers of properties improperly cleaned up, debris inadequately disposed of with personal injury due to contractor’s negligence, who will then pay the bill?

The victims of Katrina have suffered immensely from first an inadequate response that caused the lives of many citizens, the loss of property, family members and their communities. Now, the government will hold harmless contractors who may further injure the citizenry through neglect and irresponsibility.

These citizens of the United States and victims of the worst natural disaster ever in North America have been placed in double Jeopardy by this event. And in each instance the government has played a major role. First, with the slow and inadequate response to Katrina and now with a quick response that fails to adequately protect citizens in the aftermath of the storm.

I would like to put into context exactly what has happened here, and who it has happened to, in an attempt to explain why S.1761 is so objectionable.

Before Hurricane Katrina – Pre Existing Vulnerabilities

Katrina struck a region that is disproportionately African American and poor. For example, African Americans make up twelve percent of the United States population. New Orleans is nearly 68 percent black. The African American population in the Coastal Mississippi counties where Katrina struck ranged from 25 percent to 87 percent black. Some 28 percent of New Orleans residents live below the poverty level and more than 80 percent of those are black. Fifty percent of all New Orleans children live in poverty. The poverty rate was 17.7 percent in Gulfport, Ms. And 21.2 percent in Mobile, Al. in 2000. Nationally, 11.3 percent of Americans and 22.1 percent of African Americans live below the poverty line in 2000.

New Orleans is prototypical of environmental justice issues in the Gulf Coast region. Before Katrina, the City of New Orleans was struggling with a wide range of environmental justice issues and concerns. Its location along the Mississippi River Chemical Corridor increased its vulnerability to environmental threats. The City had an extremely high childhood environmental lead poisoning problem. There were ongoing air quality impacts and resulting high asthma and respiratory disease rates and frequent visits to emergency rooms for treatment by both children and adults. Environmental health problems and issues related to environmental exposure was a grave issue of concern for New Orleans residents.

The African American community in New Orleans was already grappling with the nationally identified health disparities for minorities reported by the National Institutes of Health (NIH). These conditions were exacerbated by environmental conditions triggering asthma and exposing children to lead. High blood pressure, diabetes and cancer were also prevalent in the African American community.

Displacement Post Katrina

Residents in the Gulf Coast region fled the hurricane zone. More than a million Louisiana residents fled Hurricane Katrina. An estimated 100,000 to 300,000 Louisiana residents alone could end up permanently displaced. Nearly 100,000 Katrina evacuees are in 1,042 shelters scattered in 26 states and the District of Columbia. Katrina has left environmental contamination in Gulf Coast neighborhoods that will have to be cleaned up before residents can move back. An estimated 150,000 houses may be lost as a result of standing in water from Katrina. We are still grappling with understanding the full impacts of both Hurricanes Katrina and Rita.

Thousands of hurricane survivors along the Gulf Coast must now cope with the loss of relatives and friends, homes, and businesses and, what we term, loss of community. Katrina displaced just under 350,000 school children in the Gulf Coast. An estimated 187,000 school children have been displaced in Louisiana, 160,000 in Mississippi and 3,118 in Alabama. Katrina closed the entire New Orleans school system indefinitely. One hundred and twenty-five thousand New Orleans children alone are attending schools elsewhere. Over 93 percent of New Orleans schools students are African American. Evacuees’ children are being enrolled in schools from Arizona to Pennsylvania, including almost 19,000 who will be attending schools in Texas.

For the survivors who lost everything, it involves coping with the stress of starting all over. Two weeks after Katrina struck, more than 2,500 children were still separated from their families. One can only imagine the mental anguish these families are going through. On the heels of this disaster, Hurricane Rita struck the coastal areas again.

There is much speculation about what the new New Orleans will look like: whether the Mississippi Gulf Coast should now consider land-based Casinos versus riverboats; the social economic and political structure of “New” New Orleans; rebuilding a green and sustainable Gulf Coast region that embraces innovative green building technologies and principles; construction of a levee system that will protect New Orleans; and development of environmentally and economically sustainable communities must all be explored simultaneously. None of these concepts are relevant unless the cleanup in the region is properly conducted and completed. This conclusion is not based on speculation. The community of Agriculture Street Landfill in the City of New Orleans has lived the nightmare of discovering that their homes were built on top of a landfill that was reopened to dispose of the tons of debris resulting from Hurricane Betsy.

Hurricane Betsy – New Orleans, Louisiana

Hurricane Betsy struck the State of Louisiana and the City of New Orleans in 1965. Betsy was then the “most destructive hurricane on record to strike the Louisiana coast.” The damage and flooding throughout the State covered 4,800 square miles, killed 81 persons, caused the evacuation of 250,000 persons, and disrupted transportation, communication, and utilities services throughout the eastern coastal area of Louisiana for weeks. Betsy hit the mostly Black and poor New Orleans Lower Ninth Ward especially hard. This is the same neighborhood that was inundated by floodwaters from Katrina and then suffered the indignity of a second flooding by Rita. Over 98 percent of the Lower Ninth Ward residents are Black and a third live below the poverty level.

Many Black New Orleans residents still believe that white officials intentionally broke the levee and flooded the Lower Ninth Ward to save mostly white neighborhoods and white business districts. In 1965, a disproportionately large share of Lower Ninth Ward residents did not receive adequate post-disaster financial assistance in the form of loans and other support to revitalize the area. Betsy accelerated the decline of the neighborhood and out-migration of many of its longtime residents. Debris from Betsy was buried in the Agricultural Street Landfill—located in a predominately Black New Orleans neighborhood. Over 390 homes were built on the northern portion of the site from 1976-1986. The Agricultural Street Landfill neighborhood was added to the National Priorities List as a Superfund site in 1994. ii

New Orleans Agriculture Street Landfill Community

Dozens of toxic time bombs along Louisiana’s Mississippi River petrochemical corridor, the 85-mile stretch from Baton Rouge to New Orleans, make the region a major environmental justice battleground. The corridor is commonly referred to as Cancer Alley. Black communities all along the corridor have been fighting against environmental racism and demanding relocation to areas away from polluting facilities. iii

Two largely Black New Orleans subdivisions, Gordon Plaza and Press Park, have special significance in terms of environmental justice and emergency response. Both subdivisions are built on a portion of land that was used as a municipal landfill for more than 50 years. The Agriculture Street Landfill, covering approximately 190 acres, was used as a city dump as early as 1910. Municipal records indicate that after 1950, the landfill was mostly used to discard large solid objects, including trees and lumber, and it was a major source for dumping debris from the very destructive 1965 Hurricane Betsy. It is important to note that the landfill was classified as a solid waste site and not a hazardous waste site.

In 1969, the federal government created a home ownership program to encourage lower income families to purchase their first home. Press Park was the first subsidized housing project of this program in New Orleans. The federal program allowed tenants to apply 30 percent of their monthly rental payments toward the purchase of a family home. In 1987, seventeen years later, the first sale was completed. In 1977, construction began on a second subdivision, Gordon Plaza. This development was planned, controlled, and constructed by the U.S. Department of Housing and Urban Development (HUD) and the Housing Authority of New Orleans (HANO). Gordon Plaza consists of approximately 67 single-family homes.

In 1983, a portion of the Agriculture Street Landfill site was purchased by the Orleans Parish School Board as a site for a school. The fact that this site had previously been used as a municipal dump prompted concerns about the suitability of the site for a school. The school board contracted engineering firms to survey the site and assess it for contamination and hazardous materials. Heavy metals and organics were detected.

Despite the warnings, Moton Elementary School, an $8 million state-of-the-art public school opened with 421 students in 1989. In May 1986, EPA performed a site inspection (SI) in the Agriculture Street Landfill community. Although lead, zinc, mercury, cadmium, and arsenic were found at the site, based on the Hazard Ranking System (HRS) model used at that time, the score of 3 was not high enough to place them on the National Priority List (NPL).

On December 14, 1990, EPA published a revised HRS model in response to the Superfund Amendments and Reauthorization Act (SARA) of 1986. At the request of community leaders, in September 1993, an Expanded Site Inspection (ESI) was conducted. On December 16, 1994, the Agriculture Street Landfill community was placed on the NPL with a new score of 50.

The Agriculture Street Landfill community was home to approximately 900 African American residents. The average family income is $25,000 and the educational level is high school graduate and above. The community pushed for a buy-out of their property and to be relocated. However, this was not the resolution of choice by EPA. A cleanup was ordered at a cost of $20 million, the community buy-out would have cost only $14 million. The actual cleanup began in 1998 and was completed in 2001. iv

The Concerned Citizens of Agriculture Street Landfill filed a class action suit against the City of New Orleans for damages and relocation costs. It took nine years to bring this case to court. The case was still pending before Katrina struck. It is ironic that the environmental damage wrought by Katrina may force the cleanup and relocation of the Agriculture Street Landfill community. But nothing can give them back their health and well being, or replace the family members and friends who might still be with them were it not for the health effects of living on a landfill.

The Most Vulnerable

The majority of households and businesses in the 12 Hurricane Katrina –affected counties in Alabama, Mississippi, and Louisiana do not have flood coverage. FEMA estimates that 12.7 percent of the households in Alabama, 15 percent in Mississippi, and 46 percent in Louisiana have flood insurance. Similarly, on 8 percent of the businesses in hurricane-affected counties in Alabama, 15 percent in Mississippi, and 30 percent in Louisiana have flood coverage.

Generally, people of color have higher levels of physical damage than whites largely due to segregated housing in older, poorly built homes. Black households are less likely to have insurance to cover storm losses and temporary living expenses. Because of racism and racial redlining, blacks are more likely than whites to receive insufficient insurance settlement amounts. Blacks are less likely than whites to have insurance with major companies as a result of decades of insurance redlining.

Because of the legacy of “Jim Crow” segregation, many African American consumers in the Louisiana, Mississippi, and Alabama Gulf Coast region may be concentrated in the secondary insurance market—smaller and less well-known insurance firms. This could prove problematic for Katrina victims. Nearly a dozen small insurance companies collapsed after Hurricane Andrew, which cost the industry about $23 billion in today's dollars. Andrew was the most expensive single hurricane until Katrina. The same thing could happen after Katrina. Many, if not most, Katrina low and moderate-income victims may not have resources to hire lawyers to fight the insurance companies.

Cleanup-up Standards and Protection of Public Health

Hurricane Katrina has left environmental contamination in Gulf Coast communities that will have to be cleaned up. In the New Orleans area alone an estimated 22 million tons of debris must be cleaned up and 145,000 cars ruined by hurricane floodwater will have to be disposed of. How, when, and at what level (methods of clean-up and clean-up standards) contaminated neighborhoods get cleaned up is a major environmental justice concern for African American communities.

Where the hurricane debris and waste end up is another issue that causes concern because of pre-existing power arrangements and the historical legacy of unequal protection and differential treatment provided to communities of color. It is important that government officials not repeat the mistakes made in 1965 with debris from Hurricane Betsy disposed in an African American area—later to become the Agricultural Street Landfill Superfund site community. Black communities in the South, as documented in Dumping in Dixie: Race, Class, and Environmental Quality, are dotted with landfills, toxic waste dumps, and hazardous waste disposal sites.

Katrina toppled offshore oil platforms and refineries sending shock waves throughout the economy with the most noticeable effects felt at the gas pump. Katrina and Rita temporarily closed all oil operations and most natural gas operations in the Gulf region that supplies 29 percent of U.S.-produced oil and 19 percent of U.S.-sourced natural gas.

Katrina caused an unprecedented environmental and health crisis. The powerful storm caused 11 oil spills releasing 7.4 million gallons of oil. It also hit 60 underground storage tanks, five Superfund sites, and numerous hazardous waste facilities. More than 1,000 drinking-water systems were disabled and lead and e. coli in the floodwaters have far exceeded the EPA’s safety levels.

Tests from the U.S. EPA and independent sampling conducted by the Louisiana Environmental Action Network (LEAN) in several New Orleans areas exceed federal standards for residential communities. LEAN sampling found high levels of polynuclear aromatic hydrocarbons (PAHs) exceeding residential standards. Many PAHs are known or suspected of causing cancer. The testers found 12 PAHs in sediments the Lower 9th Ward. One, benzo (a) pyrene, was at 195 parts per billion, three times greater than the EPA residential standard of 62 parts per billion. Arsenic, another known cancer-causing agent, was found at concentration 75 times higher than residential standards. Tests revealed elevated levels of heavy metals and volatile organic chemical associated with petroleum products. Ten PAHs were found on Agricultural Street, designated a Superfund site, with benzo (a) pyrene at concentration 2.7 times higher than EPA residential standards. The arsenic level in the Morrison Road area was 13.3 times higher than EPA residential standards.

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i Craig E. Colten and John Welch. “Hurricane Betsy and Its Effects on the Architecture Integrity of the Bywater Neighborhood: Summary.” May 2003.
ii See Agency for Toxic Substances and Disease Registry, Public Health Assessment - Agriculture Street Landfill, New Orleans, Orleans Parish, Louisiana, Atlanta, GA: ATSDR (June, 1999); Alicia Lyttle, Agriculture Street Landfill Environmental Justice Case Study, University of Michigan School of Natural Resources, Ann Arbor, Michigan (January 2003).
iii Robert D. Bullard, The Quest For Environmental Justice: Human Rights and the Politics of Pollution (San Francisco: Sierra Club Books, 2005.

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iv Alcia Lyttle, “Agricultural Street Landfill Environmental Justice Case Study,” University of Michigan School of Natural Resource and Environment found at http://www.umich.edu/~snre492/Jones/agstreet.htm. (Accessed on October 6, 2004).
v Robert D. Bullard, The Quest For Environmental Justice: Human Rights and the Politics of Pollution.

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