HD33 - Solid Waste Facility Management in Virginia: Impact on Minority Communities

  • Published: 1995
  • Author: Joint Legislative Audit and Review Commission
  • Enabling Authority: House Joint Resolution 529 (Regular Session, 1993)

Executive Summary:
In 1993, the Virginia General Assembly passed House Joint Resolution 529 directing JLARC to study practices related to the siting, monitoring, and clean-up of both hazardous and non-hazardous solid waste facilities, specifically focusing on the impact of these activities on minority communities. While there are no hazardous waste disposal facilities in Virginia, local governments and private companies operate more than 240 non-hazardous solid waste facilities across the State.

The majority of these facilities in the State are sanitary, industrial, and demolition debris landfills which are used to dispose of various types of solid waste by burying the refuse in the ground. The State agency responsible for ensuring that regulations governing the management and disposal of solid waste are properly implemented is the Department of Environmental Quality (DEC). In 1988, the responsibilities of this agency increased significantly with the adoption of a sweeping set of solid waste regulations that were designed to protect the environment from possible contamination related to the disposal of solid waste.

The key issue raised in this mandate is whether a pattern of racial discrimination has developed in the process for siting and monitoring solid waste management facilities which disproportionately exposes minorities to certain health risks. While the study found no evidence of an intent to discriminate against minorities, the analysis revealed that, in some cases, siting and monitoring practices have had a disproportionate impact on minority communities. Significant findings of the report include:

• Only 17 percent of the solid waste facilities sited since 1988 are located in communities which have a minority population rate that exceeds 50 percent. This calls into question the view that minority communities are routinely targeted to host solid waste facilities in Virginia.

• However, almost four out of every ten solid waste facilities that have been sited in the State since 1988 are located in disproportionately minority communities. In nearly half of these communities, the difference between the community and locality-wide minority population rate is substantial.

• While there is no evidence of an intent to discriminate by local governing bodies that approve site locations, local governments generally do a poor job of proactively involving the community in the siting process.

• Critical gaps exist in DEC's solid waste regulatory oversight program. Management within DEC have not implemented systems to monitor the compliance status of solid waste facilities with respect to groundwater monitoring and landfill closure activities. Nor is attention given to whether the agency's major compliance programs - monitoring and enforcement - are consistently implemented.

• Due to staffing problems, the performance of the agency's inspectors has been inconsistent, and data for a sample of waste facilities indicates less inspection activity for facilities in minority neighborhoods. DEC has not adequately enforced the closure requirements for landfills that are no longer receiving waste and does not routinely monitor these facilities to ensure that they are not creating problems for the environment.

• There has been some growth in the number of private regional landfills in Central Virginia. This has created geographic and racial equity issues as a disproportionate amount of solid waste is disposed of in Central Virginia which has a large proportion of minorities.

Minorities Are Disproportionately Impacted by 35 Percent of SWMF Sitings

To determine the impact on minorities of recently sited SWMFs, JLARC staff conducted an analysis of the racial composition of the communities surrounding the recently sited SWMFs. Analysis of the communities around these facilities reveal that approximately seven out of every ten residents who live within communities around new newly permitted SWMFs are white. In addition, only seven out of 41 communities (17 percent) around these sites have a minority population that exceeds 50 percent (see Figure, page III).

Nonetheless, legitimate questions can be raised about facility sitings patterns which show that minorities live near SWMFs at rates which are higher than should be expected based on their numbers in the overall population of the locality. This type of disproportionate representation suggests that minorities are, either coincidentally or as a matter of public policy, being forced to bear a disproportionate share of any burdens or risks which may be associated with living in close proximity to a SWMF.

The study findings suggest that minorities are disproportionately impacted by 35 percent of the SWMF sitings (see Figure, page IV). Fourteen of the 40 (35 percent) planned or established facilities since 1988 are in communities that are disproportionately minority. In seven of these 14 facility sitings that are considered to have a disproportionate impact, the differences between the community and the locality-wide minority rate are greater than 20 percentage points.

No Evidence of Intent to Target Minority Communities

Despite the disproportionate impact on minorities, there is no evidence of an intent to discriminate against these communities. A review of the local decision-making process in these and other communities did not reveal significant differences between the siting process for sites in disproportionately minority communities and sites that are not in disproportionately minority communities. Localities that approved solid waste sites in minority communities were just as likely to have conducted formal independent siting studies and objectively evaluated alternative sites, and were almost as likely to have had minority representatives on the local governing board who supported the siting decision.

Public Participation in the Process Needs to Be Improved

One aspect of the siting process that needs to be improved is public participation. Ina number of localities visited by JLARC, it was apparent that there was a lack of public involvement during the early stages of the siting process. In some of the more urban localities, much of the planning for the site wash and led by professional staff and consultants. In some of the more rural localities, county administrators and members of the board of supervisors worked closely on the project without much outside involvement.

A survey of residents in communities with SWMFs that have been permitted under the 1988 regulations indicates that public participation in the siting process generally has not been cultivated. Only15percent of those responding to the survey had any knowledge of how the facility came to be located in their community, and 77 percent indicated that they had no knowledge about the siting of the facility in their community. The number of minority residents with any knowledge of the siting process was even lower - only eight percent. In minority communities, failure to involve the public in a meaningful way during the siting early stages of the process may give rise to suspicion and resentment that the site is being "dumped' in the community because of the racial composition of the residents.

In order to minimize the problems with future SWMF sitings, the State should develop some guidelines which outline strategies that may be used to ensure community involvement in the siting process. Local governments need to be certain that members of the communities in which SWMFs may be established are involved in the planning, siting, and development of operational guidelines for these facilities. The Department of Environmental Quality, in consultation with the Virginia Association of Counties and the Virginia Municipal League, should develop a technical assistance guide for local governments on the process for siting solid waste management facilities. In addition, the Secretary of Natural Resources should require DEQ to develop a geographical mapping database to help identify the racial characteristics of residents surrounding all sites in which SWMFs are proposed. If the communities are predominantly or disproportionately minority, the permit applicant should be required to demonstrate that representatives from the affected community were given the opportunity to participate in the process for siting the facility.

Critical Gaps Exist in DEQ's Oversight Program

In response to the 1988 Solid Waste Management Regulations, DEQ has established a program of oversight to enforce the regulatory requirements. However, this oversight program has some significant problems which appear to be at least partly the result of several reorganizations that the solid waste program has undergone in recent years. Some staff are not clear on their responsibilities for oversight, and very little attention is given to supervising and coordinating the work of the field staff who are responsible for conducting facility inspections. While it appears that DEQ has established a system to enforce many of the major new regulatory requirements, the agency has given only minimal attention to key regulatory requirements regarding groundwater monitoring and landfill closure. In the area of groundwater monitoring, DEC's lack of enforcement may have allowed higher rates of noncompliance for landfills in minority communities to go undetected.

The department needs to substantially improve its oversight program in these areas. This can be accomplished by clearly defining the oversight responsibilities for all central office staff and developing a reporting system that requires regional staff to report quarterly on compliance rates for both active and closed facilities.

DEQ's Inspection Process Is Inconsistent and Varies by Race

Examination of DEC's inspection process over the last 23 years revealed significant problems with the process which are at least partly the result of chronic staff shortages among inspectors and a lack of guidance from the department's central office. The analysis revealed that inspectors are not able to consistently conduct inspections of SWMFs in their region. Further, the length of time between inspections is considerable and especially long for sites in minority neighborhoods. Also, the length of time that sites remain out of compliance with solid waste regulations has increased over time, and the periods of non-compliance have been especially lengthy for sites in minority communities.

Solid waste operators that do not resolve violations are referred to the agency's enforcement unit. Data analyzed for this study indicate that the process is underutilized, protracted, and weak. Since 1980, only 148 cases have been officially referred to the unit. Most of these cases are still pending after an average of three years since the initial referral. Because DEC does not have the authority to levy administrative penalties without the consent of the operator, some cases are referred to the Attorney General's office for legal action. These cases remain unresolved after an average of six years.

DEQ needs to institute several reforms to improve the agency's inspection process. The agency needs to conduct a workload analysis for each region and determine the number of inspectors that will be required to enhance the integrity of the inspection process. In addition, the agency should implement a notice of violation point system like the one used in the water division to bring greater consistency to the inspection process. DEC should also develop an automated data management system which will allow inspectors to more efficiently track the compliance status of all SWMFs in the State and enable central office staff to provide better oversight of the inspection process. Finally, the enforcement process could be strengthened if the Code of Virginia were amended to give an administrative law judge the authority to impose civil penalties on recalcitrant solid waste operators who are in violation of the State's regulations.

DEQ Needs to Improve Enforcement of the Closure Requirements

Because landfills pose a risk to the environment even after they have stopped receiving waste, it is important that inactive facilities be closed properly. Although DEC is required by the regulations to regularly inspect inactive and closed landfills to ensure that the closure standards are implemented, the agency has provided only minimal oversight in this area. Almost half of the landfills that have stopped receiving waste have never been inspected by DEQ. Additionally, the majority of inactive landfills that are required to close under the regulations have not been forced to do so, and less than 30 percent of these sites were being reviewed by enforcement at the time of this study. Managers of the enforcement and compliance units within DEQ should develop a plan to identify all inactive landfills which are out of compliance with State closure regulations so that these sites can be officially closed and routinely monitored.

Landfill Capacity Does Not Need to Be Regulated

With the construction of several large regional landfills in the State over the last several years, there has been a substantial increase in the amount of waste being imported to the State. In 1993, imported waste accounted for about 14 percent of the solid waste disposed of in the Commonwealth and by 1995 it will account for nearly 18 percent.

The trend in private regional landfills has generated both geographical and racial equity issues. Most of the regional landfills are located in Central Virginia which, as a result, receives a disproportionate share (42 percent) of all the solid waste that is buried in the State. In addition, most of the counties which host these regional facilities and the neighborhoods in which the sites are located have minority populations that are substantially larger than can be observed statewide.

Despite this trend, local governments still control most of the State's landfill capacity, if remaining capacity is measured in terms of the number of years that a facility can continue to receive waste. Specifically, local governments control 92 percent of the remaining landfill capacity which is fairly evenly distributed across the State. Based on these findings and potential legal barriers, there is not a compelling reason to support State regulation of the construction of new private landfills.