The opinion of the court was delivered by: DALZELL
This case arises out of the process defendants employ to issue permits for the construction of waste facilities. In particular, at issue is their grant of a waste facility permit to Soil Remediation Services, Inc., to open such a facility in the City of Chester, a community in southeastern Pennsylvania with a predominantly African-American population.
Compl. at P 21.
Plaintiffs are residents of Chester and Chester Residents Concerned for Quality Living, a Pennsylvania non-profit corporation (which we shall refer to collectively as "Chester Residents"). Chester is in Delaware County, which has a population that is 86.5% white and 11.2% black. Compl. at P 25(a). The Chester Residents allege violations of Title VI, 42 U.S.C. § 2000d et seq.,
and the EPA's regulations adopted pursuant thereto.
The Chester Residents essentially argue that the process defendants use to determine whether to grant a waste facility permit has the effect of discriminating against them by concentrating the burden of pollution and the negative health effects it causes, within the African-American community in Chester while leaving the white residents of Delaware County essentially free of the pollution their waste caused. See Compl. at PP 31, 44. In this regard, the United States Environmental Protection Agency has noted that:
The City of Chester has among the highest concentration of industrial facilities in Pennsylvania. Chester hosts a number of waste processing plants . . . all solid waste from Delaware County is incinerated in Chester and at least 85% of raw sewage and associated sludge is treated there. A large infectious medical waste facility was also recently sited in Chester. Many of the plants are located in close proximity to low income, minority residential neighborhoods. In fact, a clustering of waste treatment facilities have been permitted within 100 feet of over 200 Chester homes.
Chester residents are concerned about the health effects of living and working amid toxic substances and complain of frequent illness. Of [all the] cities of the State [sic ], Chester has the highest infant mortality rate . . . and the highest death rate due to certain malignant tumors.
Compl. at 2 (quoting EPA Draft Environmental Justice Strategy for Executive Order No. 12898, January 1995)(alteration added in original). Plaintiffs contend that by placing this disparate burden upon the African-American community of Chester, defendants violated Title VI and the EPA's regulations promulgated thereunder. Compl. at PP 51, 55, 58.
Defendants move for dismissal, arguing, inter alia, that (i) plaintiffs have failed to state a claim under Title VI because they did not allege discriminatory intent, and (ii) plaintiffs have failed to state a claim under EPA the regulations because there is no private right of action under them.
Plaintiffs' Attempt to Amend Through Their Response
Plaintiffs, apparently realizing the error in their complaint, allege discriminatory intent in their response to defendants' motion, Pls. Resp. Br. at 5-9, contending that the Court can infer intent from the troubling facts about the unequal distribution of waste facilities in Delaware County. Pls. Resp. Br. at 5 (quoting Village of Arlington Heights v. Metro Housing Dev., 429 U.S. 252, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977)).
In particular, plaintiffs point to the defendants' grant since 1987 of five waste facility permits for facilities to be located within Chester that would increase the total permit waste capacity by over 2,000,000 tons per year. Pls. Resp. Br. at 6. This capacity was in addition to the permit capacity of the DELCORA plant, operating in Chester, which "had a permit for a sewage waste facility to treat 44,000,000 gallons of sewage ...