New Jersey Dept. of Environmental Protection v. South Camden Citizens in Action Conformed Brief Amici Curiae

    Nos. 01-2224/01-2296

IN THE UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT

NEW JERSEY DEPARTMENT OF ENVIRONMENTAL 
PROTECTION, et al.,

Defendants/Appellants,

SOUTH CAMDEN CITIZENS IN ACTION, et al., 
Plaintiffs/Appellees.

ST. LAWRENCE CEMENT CO., L.L.C., 
Intervenor-Defendant/Appellant

On Appeal from the United States District Court 
for the District of New Jersey

CONFORMED BRIEF OF AMICI CURIAE LAWYERS' COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW, NATIONAL ASSOCIATION FOR THE 

ADVANCEMENT OF COLORED PEOPLE, NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC., ASIAN AMERICAN LEGAL DEFENSE 

AND EDUCATION FUND AND GARDEN STATE BAR ASSOCIATION IN 
SUPPORT OF APPELLEE AND URGING AFFIRMANCE

Thomas Henderson, Esq. 
Janette L. Wipper, Esq. 
Lawyers' Committee for Civil 
Rights Under Law 

1408 New York Avenue, N.W. 
Washington, D.C. 20005-2124

Robert J. Del Tufo, Esq.
Ellen O'Connell, Esq.
Skadden, Arps, Slate, Meagher 
& Flom LLP

One Newark Center - 18th Floor 
Newark, New Jersey 07102



Dennis Courtland Hayes, Esq. 
National Association for the 

Advancement of Colored People 
4801 Mount Hope Road 
Baltimore, Maryland 21215 
(410)486-9191

(202) 662-8600

Ronald Thompson, Esq.
Garden State Bar Association 
Law Office of Ronald Thompson 
213 South Harrison Street 
East Orange, New Jersey 07018 
(973)673-1001

Ken Kimerling 
Margaret Fung
Asian American Legal Defense 

and Education Fund 
99 Hudson St. -12th Floor 
New York, New York 10013 
(212) 966-5932

Elaine R. Jones 
Theodore M. Shaw 
Norman J. Chachkin 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street, Suite 1600 
New York, New York 10013-2897 
(212) 965-2200

(973) 639-6800

Regina Waynes Joseph, Esq.
Garden State Bar Association 
320 South Harrison Street 
16th Floor
East Orange, New Jersey 07018-1333 
(973) 744-5208



TABLE OF CONTENTS

PAG FIS)

INTEREST OF AMICUS CURIAE ................................................................  1

I. DISTRICT COURT PROPERLY HELD THAT TITLE 
VI REQUIRES NJDEP TO CONSIDER ADVERSE 
DISPARATE IMPACTS WHEN IT CONSIDERS 
WHETHER TO ISSUE AIR QUALITY PERMITS .................. 5

A. Section 601 requires NJDEP Not Only to 
Examine Narrow Environmental Standards 
but also to Consider The Consequences of 
Issuing A Permit, and the Race or National 
Origin Of Those Who Will Be Affected
Thereby............................................................................... 7

B. Compliance With EPA's Disparate Impact 
Regulations Under §602 Requires That 
NJDEP Consider Adverse Effects Other 
Than Compliance With The Narrow Envi­
ronmental Requisites It Must Consider,
And The Race And National Origin Of 
Those Who Will Be Affected By The
Issuance Of A Permit......................................................... 13

II. DISTRICT COURT PROPERLY FOUND THAT THE
PLAINTIFFS DEMONSTRATED A LIKELIHOOD 
OF SUCCESS ON THE MERITS ON THE QUES­
TION WHETHER THE GRANT OF THE PERMIT 
WOULD HAVE A DISPARATE IMPACT ON 
AFRICAN-AMERICANS AND HISPANIC-AMERI- 
CANS .........................................................................................  18

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A. The Record Clearly Establishes That Issu­
ance of the SLC Permit Would Have a
Disparate Racial Im pact.....................................................20

B. The Disparate Impact Holding Is Sup­
ported by the Apparent Disparity in Other 
Sources of Exposure That Have Been 
Authorized to Operate in Waterfront
South................................................................................... 26

C. The Disparate Impact Holding Is Sup­
ported by the Apparent Racial Pattern in 
the Distribution of NJDEP-Permitted and
EPA Regulated Facilities State-Wide ............................... 30

CONCLUSION...............................................................................................  35

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TABLE OF AUTHORITIES

CASES PAGEfS)

Adams v. Richardson. 351 F. Supp. 636 (D.D.C. 1973),
modified & affd. 480 F.2d 1159 (D.C. Cir. 1973)............................ 2

Ammons v. Dade City. Florida, 594 F. Supp. 1274 (M.D.
Fla. 1984), affd. 783 F.2d 982 (11th Cir. 1986) ..........................  29

In Re Arthur Treacher's Franchisee Litigation. 689 F.2d 1137 (3d
Cir. 1982) .........................................................................................  18

Blackshear Residents Organization v. Elousing Authority of the
City of Austin. 347 F. Supp. 1138 (W.D. Tex. 1972) ................  5, 28

Bronson v. Crestwood Lake Section 1 Holding Corp.. 724 F.
Supp. 148 (S.D.N.Y. 1989)............................................................... 33

Brvan v. Koch. 627 F.2d 612 (2d Cir. 1980) ............................................  26

Burton v. Wilmington Parking Authority. 365 U.S. 715 (19 6 1 )................ 9

Castaneda v. Partida, 430 U.S. 482 (1977)...................................................9

El Cortez Heights Residents & Property Owners Association
v. Tucson. 457 P.2d 294 (Ariz. App. 1969)...................................... 5

Griggs v. Duke Power Co.. 401 U.S. 424 (1971)......................................  19

Hodges v. Public Building Commission of Chicago. 864 F. Supp.
1493 (N.D. 111. 1994) .......................................................................  26

Huntington Branch. NAACP v. Town of Huntington. 844 F.2d
926 (2d Cir. 1988), affd. 488 U.S. 15, 17 (1989) ..........................  34

-in-



I

Instant Air Freight Co. v. C.F. Air Freight, Inc.. 882 F.2d 797 (3d
Cir. 1989) ........................................................................................  18

Jackson v. Conway. 476 F. Supp. 896 (E.D. Mo. 1979), affd. 620
F.2d 680 (8th Cir. 1980)................................................................  29

Kennedy Park Homes Associate, Inc, v. City of Lackawanna. 436 
F.2d 108 (2d Cir. 1970k cert, denied. 401 U.S. 1010(1971)
...........................................................................................................28

Laramore v. Illinois Sports Facility Authority. 722 F. Supp. 443
(N.D. 111. 1989)........................................................................... 11,26

N.A.A.C.P. v. Wilmington Medical Central. Inc.. 657 F.2d 1322
(3d Cir. 1981) .....................................................................................16

Palmore v. Sidoti. 466 U.S. 429. 433 0 9 8 4 ) ................................................. 9

Regents of University of California v. Bakke. 98 S.Ct. 2733, 2746
(1978) ...............................................................................................  7

Resident Advisory Board v. Rizzo. 564 F.2d 126 (3d Cir.
1977).......................................................................................  8, 19,24

R.I.S.E. v. Kav. 768 F.Supp. 1144 (E.D. Va. 1991).............................. 7, 11

Scenic Hudson Preservation Conference v. Federal Power 
Commission. 354 F.2d 608 (2d Cir. 1965), cert, denied.
384 U.S. 941 (1 9 6 6 )......................................................................... 12

Shannon v. United States Department of Housing &
Urban Development. 436 F.2d 809 (3d Cir. 1970) ........  5, 10, 15, 24

Shelley v. Kramer. 334 U.S. 1 (1947)............................................................ 9

- IV -



>

South Camden Citizens in Action v. New Jersey Department of 
Environmental Protection, No. Civ.A. 01-702, 2001 WL 
392472 (D.N.J. Apr. 19, 2001) . . 6, 14, 15, 18, 21, 22, 23, 27, 31, 32

United States v. Yonkers, 96 F.3d 600 (2d Cir. 1996)................................ 9

Village of Arlington Heights v. Metropolitan Housing Develop­
ment Corp.. 429 U.S. 252 (1977)....................................................  19

Washington v. Davis. 426 U.S. 229, 242 (1976) ..................................  8,19

Watson v. Fort Worth Bank & Trust 487 U.S. 977 (1988)...................  19

STATUTES PAGE(S)

40 C.F.R. §§7.30(d), 7.85(2)........................................................................ 14

40C.F.R. § 7 .35(b).......................................................................................13

40 C.F.R. § 7.80(a)(1)..................................................................................13

40 C.F.R. § 7.80(a) ......................................................................................15

40 C.F.R. 7.85(a)(2)-(4) ...............................................................................13

40 C.F.R. § 7.85 .......................................................................................... 15

Fed. R. App. P. 29(a).......................................................................................4

65 Fed. Reg. 39650, App .............................................................................18

42U.S.C. § 2000d...............................................................................7,9, 13

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INTEREST OF AMICUS CURIAE

The Lawyers' Committee for Civil Rights Under Law ("Committee")was 

founded in 1963 by the leaders of the American bar, at the request of President John 

F. Kennedy, in order to help defend the civil rights of minorities and the poor. Its 

Board of Trustees presently includes past Presidents of the American Bar Associa­

tion, past Attorney Generals of the United States, law school deans and many of the 

nation's leading lawyers. It has local affiliates in Boston, Chicago, Denver, Los 

Angeles, Philadelphia, San Antonio, San Francisco and Washington, D.C. Through 

the Committee and its affiliates, hundreds of attorneys have represented thousands 

of clients in civil rights cases across the country. The Committee is a tax-exempt, 

nonprofit civil rights organization. Among the Committee's essential interests is the 

proper construction and implementation of Title VI of the Civil Rights Act of 1964, 

as well as of the regulations that give life to the statutory promise of nondiscrimina­

tion in Federally-assisted programs.

The National Association for the Advancement of Colored People 

("NAACP"), established in 1909, is the nation's oldest civil rights organization. The 

NAACP has state and local affiliates throughout the nation, including the State of 

Maryland where it maintains its national headquarters. The fundamental mission of

' I

the NAACP includes promoting equality of rights, eradicating caste and race



prej udice among the citizens of the United States and securing for African Americans 

and other minorities increased opportunities for employment. The NAACP has 

appeared before courts throughout the nation in numerous important civil rights 

cases.

The NAACP Legal Defense and Educational Fund Inc. ("LDF") was 

incorporated in 1939 under the laws of New York State, for the purpose, inter alia, 

of rendering legal aid free of charge to indigent “Negroes suffering injustices by 

reason of race or color.” Its first Director-Counsel was Thurgood Marshall. LDF has 

appeared as counsel of record or amicus curiae in numerous cases before the 

Supreme Court, the Courts of Appeals, and the federal District Courts, involving 

constitutional and statutory civil rights guarantees and has litigated cases under Title 

VI of the Civil Rights Act of 1964 and its implementing regulations, including efforts 

to require federal agencies to enforce the statute effectively. See Adams v. 

Richardson, 351 F. Supp. 636 (D.D.C. 1972), 356 F. Supp. 92 (D.D.C. 1973), 

modified & aff d, 480 F.2d 1159 (D.C. Cir. 1973). Based upon this experience, LDF 

believes that private litigation to enforce the Title VI requirement of nondiscrimina­

tion by recipients of federal funds is essential to effectuate the fundamental principle 

of equal treatment embodied in the Fourteenth Amendment and recognized by 

Congress in the Act.

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The Asian American Legal Defense and Education Fund (“AALDEF”),

founded in 1974, is a non-profit organization based in New York City. AALDEF 

defends the civil rights of Asian Americans nationwide through the prosecution of 

lawsuits, legal advocacy and dissemination of public information. AALDEF has 

throughout its long history fought for the rights of equal access to government for its 

constituents. Title Vi’s disparate impact regulations and guidelines have been an 

important part of that advocacy. AALDEF currently represents plaintiffs in the 

United States District Court who have asserted claims under the Title VI regulations 

and section 1983 seeking equal access to Unemployment Insurance through Chinese 

language services.

The Garden State Bar Association ("GSBA"), founded in the late 1960's 

as Concerned Legal Associates by a group of African-American law students and 

attorneys, is an affiliate of the National Bar Association. In 1975, the organization 

changed its name to the Garden State Bar Association and was incorporated in New 

Jersey. Its purposes include the elimination of discrimination and inequality in all 

aspects of life and assisting African-American and other ethnic minorities in 

becoming an effective part of the judicial and legal systems. Its membership includes 

more than 500 African-American attorneys, judges and law students throughout the 

State of New Jersey.

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The Committee, NAACP, LDF, AALDEF, and GSBA (collectively, the 

"Amici") respectfully file this brief with the consent of counsel for the parties 

pursuant to Fed. R. App. P. 29(a).

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I. THE DISTRICT COURT PROPERLY HELD THAT 
TITLE VI REQUIRES NJDEP TO CONSIDER AD­
VERSE DISPARATE IMPACTS WHEN IT CONSID­
ERS WHETHER TO ISSUE AIR QUALITY PER­
MITS.

The District Court properly rejected the position of St. Lawrence Cement 

Company, L.L.C., ("SLC") and the New Jersey Department of Environmental 

Protection ("NJDEP") that the only obligation of NJDEP in considering a permit for 

the facility at issue was to consider whether it would meet the National Ambient Air 

Quality ("NAAQ") standards. The court held that to discharge its civil rights 

obligations under Title VI, NJDEP must consider more than such a narrow 

environmental standard, and take into account other effects resulting from the siting 

and operation of the facility.

Non-discrimination obligations under sections 601, 602 and federal 

regulations promulgated by the United States Environmental Protection Agency 

("EPA") require that when the NJDEP issues a permit, the agency must consider 

adverse disparate impacts on the neighborhood and residents where a facility is 

located. See Shannon v. United States Dep't of Housing & Urban Dev.. 436 F.2d 809 

(3d Cir. 1970); Blackshear Residents Org. v. Housing Auth. of the City of Austin. 

347 F. Supp. 1138 (W.D. Tex. 1972); El Cortez Heights Residents & Property

-5-



Owners Ass’n v. Tucson, 457 P.2d 294 (Ariz. App. 1969). Yet, NJDEP omitted these 

considerations when determining whether to issue SLC’s permit, and SLC now 

defends such limited consideration. See SLC Brief at 50-56.

SLC insists that NJDEP's obligations under Title VI do not go beyond 

ensuring compliance with the NAAQS. Id. at 51-52, 51 n.35. In other words, 

according to SLC, “compliance with federal environmental law standards — [which 

in this case is exclusively the current PM-10 NAAQ standard] — is equivalent to 

compliance with Title VI.” South Camden Citizens in Action v. New Jersey Dept, 

of Environmental Protection (“SCCIA I”), No. CIV. A. 01-702, 2001 WL 392472, at 

* 26 (D.N.J. April 19, 2001). Thus, while rejecting the existence of Title VI 

obligations altogether, SLC concludes that neither the statute nor the EPA regulations 

"create [an] obligation to conduct an adverse disparate impact analysis." See SLC 

Brief, at 52.

Reduced to its essentials, this argument renders Title VI and EPA's 

Section 602 regulations entirely surplusage. Since under federal environmental law, 

a permit can be issued only if it complies with the relevant NAAQS, the company's 

argument means that every permit issued based on compliance with the NAAQS will 

ipso facto comply with Title VI. This court should forcefully reject these contentions.

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A. Section 601 Requires NJDEP Not Only To Examine Narrow 
Environmental Standards But Also To Consider The Conse­
quences of Issuing a Permit, and the Race or National Origin 
of Those Who Will Be Affected Thereby.

To satisfy section 601, NJDEP must consider something more than just

one national air quality standard. It must ask about the affected population, and the

consequences to that population, if it grants a permit.

Section 601 states:

No person in the United States shall, on the ground of race, 
color or national origin, be excluded from participation in, 
be denied the benefits of, or be subjected to discrimination 
under any program or activity receiving Federal Financial 
Assistance.

42 U.S.C. § 2000d. Section 601 protects against intentional discrimination. See 

Regents of University of California v. Bakke. 98 S.Ct. 2733, 2746 (1978).

In order for that guarantee to be realized, an inquiry into discrimination is the first 

step. See R.I.S.E. v. Kav. 768 F.Supp. 1144 (E.D. Va. 1991), aff d without 

opinion. 977 F.2d 573 (4th Cir. 1992) (“The impact of an official action -in this 

case, the historical placement of landfills in predominantly black communi- 

ties-provides ‘an important starting point” for the determination of whether 

official action was motivated by discriminatory intent.”).

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SLC claims that Title VI is satisfied when NJDEP grants air quality 

permits because applicants must meet a neutral, national air quality standard as a 

condition of a permit. SLC Brief at 51, n.35. SLC defends the permit by arguing 

“that by basing its permitting decisions on existing environmental emissions 

standards, such as the NAAQS, the NJDEP has complied with its obligations 

under Title VI.” SCCIA I. at * 26.

However, Title VI required NJDEP to do far more. NJDEP was 

obligated under section 601 to ask whether: (1) the placement of a slag-grinding 

plant would have an adverse effect on Waterfront South; and if so, (2) whether 

such adverse effect would fall disproportionately on an affected population 

defined by race, color, or national origin. By failing to make such an inquiry, 

NJDEP abrogated its obligations under section 601.

Civil rights authorities hold that NJDEP should have commenced its 

Title VI assessment by questioning the adverse disparate impacts of the affected 

population. See Resident Advisory Bd. v. Rizzo. 564 F.2d 126, 141 (3d Cir. 1977) 

(quoting Washington v. Davis. 426 U.S. 229, 242 (1976)) (“The impact of the 

official action - whether it ‘bears more heavily on one race than another’ - may 

provide an important starting point”). Where the discriminatory impact is dra­

-8-



matic, the inquiry into discriminatory intent may well be subsumed by the inquiry 

into, and the finding of, discriminatory effect. See Castaneda v. Partida. 430 U.S. 

482, 496 (1977). By failing to conduct this inquiry, NJDEP failed to comply with 

its obligations under section 601 to avoid or prevent an intentionally racially 

discriminatory decision in issuing a permit.

Well-settled principles underlying civil rights precedent demonstrate 

that it is simply indefensible for NJDEP to exclude an inquiry from its permit 

process examining the potential adverse racial impact of its decisions while 

claiming to execute its obligations under Title VI. Without such inquiry, NJDEP 

could never assure that its permits do not give effect to intentional discrimination 

prohibited by Title VI. See Burton v. Wilmington Parking Auth.. 365 U.S. 715, 

725 (1961) (discrimination of private lessee imputed to public lessor); Shelley v. 

Kramer. 334 U.S. 1, 20 (1947) (imputing intentional discrimination of other 

parties to public authority that enforced it). Thus, when NJDEP considers a 

permit, any underlying discrimination that is either unquestioned or unnoticed but 

is nevertheless effectuated by the permit, becomes NJDEP’s own discrimination. 

See United States v. Yonkers. 96 F.3d 600, 612 (2d Cir. 1996) (citing Palmore v. 

Sidoti. 466 U.S. 429, 433 (1984)) (“Private biases may be outside the law but the

-9-



law cannot, directly or indirectly, give them effect.”). How then could NJDEP 

possibly assure that its permits do not give effect to intentional discrimination 

prohibited by Title VI if it does not inquire into the discriminatory consequences 

of those permits?

When NJDEP failed to ask questions about the racial character of the 

actual neighborhood in which the plant would operate, notwithstanding its 

compliance with the NAAQS, it failed to comply with Title VI. According to the 

civil rights precedent of this Court, an inquiry into racially discriminatory impacts 

is required under Title VI. See Shannon v. HUD. 436 F.2d 809, 821 (3d Cir. 1970) 

(holding that an agency must utilize some institutionalized method whereby, in 

considering site selection or type selection, it has before it the relevant racial and 

socio-economic information necessary for compliance with its duties under Title 

VI and Title VIII). Indeed, the passage of the statute gave rise to this requisite 

inquiry. See id. at 821. To define such inquiry, this Court directed government 

agencies, when considering whether a program was workable, both to look at the 

effects of the proposed action and the race of the affected population in order to 

prevent discrimination. Id. at 816.

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When NJDEP failed to ask questions about adverse effects on the 

actual neighborhood in which the plant would operate, notwithstanding its 

compliance with the NAAQS, it again failed to comply with Title VI. Courts have 

interpreted non-discrimination statutes to require consideration of diverse factors 

in assessing whether a decision will have an adverse racial impact. In R.I.S.E. v. 

Kay, a Virginia state landfill siting process was deemed by the court to have a 

racially disparate impact based on an inquiry considering adverse impacts such as 

dust, noise, odor, property values, interference with worship, need for road 

improvements, and damage to a historic church and community. RISE. 768 

F.Supp. 1144 (E.D. Va. 1991), aff d without opinion. 977 F.2d 573 (4th Cir.

1992). Another court, when examining whether the siting of a facility was inten­

tionally discriminatory, ruled that increased noise and light, higher rent and taxes, 

reduced employment base, and isolation from neighboring communities were 

legally cognizable impacts relevant to that inquiry. See Laramore v. Illinois Sports 

Facility Authority. 722 F.Supp. 443 (N.D. 111. 1989). These examples illustrate the 

variety of factors the NJDEP should have considered in assessing the impact of the 

permit, instead of limiting the inquiry solely to the NAAQS.

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Finally, by failing to consider any adverse effects by race, NJDEP 

may very well have failed to adhere to its own administrative duties. It is a well- 

settled principle of administrative law that an agency has a duty in its decision­

making to consider all relevant factors based on applicable statutes. See Scenic 

Hudson Preservation Conference v. Federal Power Comm’n. 354 F.2d 608, 612, 

620 (2d Cir. 1965) (stating that an agency has an “affirmative duty to inquire into 

and consider all relevant facts” and make decisions based upon “careful consider­

ation which the statute contemplates”. Therefore, although NJDEP considered the 

NAAQS, it disregarded the adverse and racial impacts of its permit, which was a 

failed to give “careful consideration” to the factors Title YI contemplates. This 

alone justifies the District Court’s decision to order NJDEP to conduct the requi­

site analysis. Without it, NJDEP failed to fulfill its duty as an administrative 

agency.

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B. Compliance With EPA’s Disparate Im­
pact Regulations Under §602 Requires 
That NJDEP Consider Adverse Effects 
Other Than Compliance With The Nar­
row Environmental Requisites It Must 
Consider. And The Race And National 
Origin Of Those Who Will Be Affected 
By The Issuance Of A Permit.

Section 602 of Title VI of the Civil Rights Act of 1964 states:

Each federal agency which is empowered to extend 
Federal financial assistance to any program or activity ... 
is authorized and directed to effectuate the provisions of 
section 2000d of this title with respect to such program 
or activity by issuing rules, regulations, or orders of 
general applicability.

42 U.S.C. § 2000d-l.

The law authorizes federal agencies to enact regulations to implement

section 601 of Title VI. Pursuant to section 602, NJDEP's Title VI obligations are

established in EPA regulations which state:

A recipient shall not use criteria or methods of adminis­
tering its program which have the effect of subjecting 
individuals to discrimination because of their race, color, 
national origin, or sex, or have the effect of defeating or 
substantially impairing accomplishment of the objectives 
of the program with respect to individuals of a particular 
race, color, national origin, or sex.

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40 C.F.R. § 7.35(b).

Applicants for EPA assistance shall submit an assurance 
with their applications stating that, with respect to their 
programs or activities that receive EPA assistance, they 
will comply with the requirements of this part.... The 
applicant’s acceptance of EPA assistance is an accep­
tance of this assurance and this part.

40 C.F.R. § 7.80(a)(1).

Each recipient shall collect, maintain, and on request of 
the OCR, provide the following information to show 
compliance with this part:... racial/ethnic, national ori­
gin, sex or handicap data; a log of discrimination 
complaints...; and reports of any compliance reviews...

40 C.F.R. 7.85(a)(2)-(4).

The District Court correctly found that NJDEP did not comply with 

these requirements when it failed to consider the racially disparate impacts of the 

permit. SCCIA I. 145 F.Supp.2d 446, 475. NJDEP's failure was at the core of the 

District Court’s judgment revoking NJDEP's air quality permits for the slag­

grinding plant and ordering NJDEP to consider the adverse disparate impacts. The 

District Court held that, “NJDEP considered only whether the facility’s emissions 

would exceed technical emissions for specific pollutants” without considering the 

increased “level of ozone generated by truck traffic to and from the SLC facility”

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even though the facility is located within an ozone non-attainment area. SCCIA I

at *32. Nor did it consider the presence of “other pollutants,” the “pre-existing 

poor health” of residents, the “cumulative environmental burden” on the commu­

nity, or the “racial and ethnic composition of the population of Waterfront South.” 

SCCIA I at *32.

NJDEP violated the obligations created by 40 C.F.R. §§ 7.30(d), 

7.85(2) to inquire into all adverse impacts of the proposed facility upon racial 

minorities. NJDEP must consider and prevent issuing permits that have an 

unjustified racially disparate impact. See Shannon. 436 F.2d at 816 (discussing 

Title VI obligations as requiring that recipient agencies “look at the effects” of its 

actions and “prevent discrimination resulting from such actions”).

Under the regulations, NJDEP must also provide evidence of such 

compliance. That is, NJDEP must guarantee that its permits do not have a racially 

disparate impact, and must collect and maintain data verifying such guarantee. See 

40 C.F.R. § 7.85 (“each recipient shall collect, maintain, and provide” upon 

request “racial/ethnic, national origin” data; a log of discrimination complaints; 

etc...).

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Most importantly, this duty is not only rooted in the regulations, but 

was undertaken and accepted by NJDEP itself when it accepted the federal money. 

See 40 C.F.R. § 7.80(a) (“. . .acceptance of EPA assistance is an acceptance of the 

obligation of [Title VI].”). On its own word alone, NJDEP cannot justifiably 

claim that compliance with the NAAQS equals compliance with Title VI. It 

promised EPA that it would do otherwise.

In addition, EPA regulations do not limit the objects of NJDEP's 

inquiry to environmental standards, much less the NAAQS. Rather, they prohibit 

actions that have the effect of “subjecting individuals to discrimination,” without 

specifying types of effects. See id. This Court has recognized that the types of 

effects relevant to a Title VI inquiry are broad. See N.A.A.C.P. v. Wilmington 

Medical Cent.. Inc.. 657 F.2d 1322, 1326 (3d Cir. 1981) (ruling that broad impacts 

such as available public transportation, health risks, access to treatment, quality of 

care, linguistic discrimination, as well as the identity of the affected population are 

relevant to an inquiry under Title VI). Thus, relying solely on compliance with 

the NAAQS is not only unsupported by the language of EPA’s regulations, but 

also contradicts judicial precedent interpreting such language.

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In sum, there is no question that NJDEP must consider factors, other 

than NAAQS emission levels, when determining if a permit should have been 

issued. These factors include (1) the adverse impacts of the permit on the commu­

nity, including the health impact to the residents and the emissions levels already 

present in the community; and (2) the racially disparate effect of issuing a permit in 

a particular community, especially when that community suffers preexisting 

disproportionate adverse health effects related, at least in part, to other facilities 

operating under permits issued and regulated by the same agency. Therefore, this 

Court should find that NJDEP breached its obligation to consider factors other than 

NAAQS emission standards when determining whether to issue SLC's permit. 

Accordingly, the District Court's grant of declaratory and preliminary injunctive 

relief should be affirmed.

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II. DISTRICT COURT PROPERLY FOUND THAT 
THE PLAINTIFFS DEMONSTRATED A LIKELI­
HOOD OF SUCCESS ON THE MERITS ON THE 
QUESTION WHETHER THE GRANT OF THE 
PERMIT WOULD HAVE A DISPARATE IMPACT 
ON AFRICAN-AMERICANS AND HISPANIC- 
AMERICANS.

The District Court reviewed the factual record to evaluate the 

"likelihood of success on the merits" component of the standard for preliminary 

relief. See Instant Air Freight Co. v. C.F. Air Freight. Inc.. 882 F.2d 797, 800 (3d 

Cir. 1989); In Re Arthur Treacher's Franchisee Litig.. 689 F.2d 1137, 1143 (3d Cir. 

1982). The Court held that plaintiffs had established a prima facie case of adverse 

disparate impact, and otherwise established an entitlement to preliminary relief. 

SCCIA I. at * 2.

Amici here focus specifically on disparate impact} The District 

Court's ruling in this regard is entirely consistent with established precedent and is 

the only conclusion that can properly be drawn from the record. i

i

This brief focuses on the disparate impact portion of the adverse disparate 
impact analysis. The District Court’s findings of fact as to harm and risk from 
exposure to emissions from the SLC facility, together with the ample record 
evidence provide the basis for the court’s holding that the disparate impact is 
adverse. Those findings are addressed in the briefs of Appellees and other amici 
and will not be given significant treatment here.

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Disparate impact analysis is simply a means of assessing “[t]he impact 

of the official action -  whether it bears more heavily on one race than another.” 

Village of Arlington Heights v. Metropolitan Hous. Dev. Corp.. 429 U.S. 252, 266 

(1977) (quoting Washington v. Davis. 426 U.S. 229, 242 (1976)). See Resident 

Advisory Bd. v. Rizzo. 564 F.2d 126, 141 (3d Cir. 1977), cert, denied sub norm, 

435 U.S. 908 (1978). Thus, disparate impact analysis involves an examination of 

the racial composition of the population that will be adversely affected by the 

challenged action in relation to the racial character of relevant populations that will 

not bear significant adverse effects. See Griggs v. Duke Power Co.. 401 U.S. 424 

(1971); Watson v. Fort Worth Bank & Trust. 487 U.S. 977 (1988). Disparate 

impact analysis must be applied flexibly in a wide variety of contexts on the basis 

of the facts and circumstances presented in each case.2

Application of established disparate impact analysis to this record 

demonstrates that NJDEP's grant of the air quality permit had a disparate impact on

2

In this case, SLC refers the Court to the EPA Draft Guidance for its 
definition of “disparate impact” as “[a] measurement of a degree of difference 
between population groups ... [which] may be measured in terms of the respective 
composition (demographics) of the groups, and in terms of the respective potential 
level of exposure, risk or other measure of adverse impact.” SLC's Brief at 58 n.40 
(quoting 65 Fed. Reg. 39650, App. A (June 27, 2001)).

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the basis of race, and that the Court’s holding is supported by several analyses of 

the available data. First, there is conclusive evidence that issuing the challenged 

permits will have a disparate racial impact on the essentially racially segregated 

population of Waterfront South — the community in which the facility will operate. 

Further, this disparate racial impact is aggravated by other sources of pollution that 

have been authorized to operate in this same neighborhood, as well as the 

correlation between race and the pattern of permits issued by NJDEP state-wide.

A. The Record Clearly Establishes That
Issuance of the SLC Permit Would Have a 
Disparate Racial Impact

Plaintiffs' complaint challenged issuance of the permit for operation of 

the SLC facility in the Waterfront South neighborhood. (See Plaintiffs' Complaint 

at §§ 98-101). The stark facts regarding the racial composition of that community 

and the exposure of the community to emissions from the SLC facility establish a 

clear and unmistakable disparate impact. This, together with the Court’s factual 

findings of the adverse health effects and risks that operation of the facility would 

have on that community, clearly establish adverse disparate impact.

Indeed, SLC does not, and could not, contest the evidence establishing 

that this community in which its plant would operate is comprised almost entirely

-20-



of African-American and Hispanic-American residents. The undisputed evidence 

shows, and the Court found, that Waterfront South residents are 63% African- 

American, 28.3% Hispanic, and only 9% white (non-Hispanic) -  a combined 

minority population of greater than 91%. SCCIA I, at * 10. The undisputed 

evidence also demonstrates that the racial composition of this neighborhood differs 

dramatically from that of the larger community. The District Court’s comparison 

of Waterfront South to the demographics on both the county and the State levels 

illustrates this fact quite clearly:

Waterfront South County of Camden State of New Jersey

63% African-American 16.2% African-American

28.3% Hispanic 7.2% Hispanic

91.3% Non-White 

9% White(non-Hispanic)

23.4% Non-White 

75.1% White(non-Hispanic)

20.6% Non-White 

79.4% White(non-Hispanic)

Thus, there can be no question that actions that impact on the Waterfront South 

community will “bear more heavily on one race than another,” the heart of 

disparate impact analysis.

SLC does not contest that this community of racial minorities would 

be exposed to a number of air "pollutants" from the operation of the SLC facility, 

including "particulate matter (dust), mercury, lead, manganese, nitrogen oxides,

-21-



carbon monoxide, sulfur oxides, and volatile organic compounds." See SCCIA I,

at * 4; see also SLC's Brief at 8. Instead, SLC argues only that exposure to those 

pollutants will not be harmful, and therefore not be adverse (See SLC Brief at 59- 

66) a conclusion that is belied by the record and the findings of the District Court. 

Nor does SLC argue, or the record support, a contention that the effects of the 

plant’s emissions would have significant effects, adverse or otherwise, on a 

substantially broader population than that of Waterfront South.3 See id.

The only argument that SLC directed squarely at the District Court's 

disparate impact analysis was to question the Court's measures of disparity the 

merit of statistics. The argument does not address the direct and immediate 

disparate impact of the SLC facility and its emissions on the Waterfront South 

residents. See SCCIA I. at * 36. Moreover, the District Court applied precisely 

what SLC suggests is the appropriate measure of disparity -  “environmental 

exposures” — in determining that the heavily minority population of Waterfront 

South would be adversely affected by emissions from the SLC facility. Moreover,

3

Even if the adverse effects of the SLC facility would reach somewhat 
beyond the Waterfront South neighborhood, the record establishes that the 
communities immediately surrounding Waterfront South are also populated 
predominately by persons of color. See SCCIA I.

-22-



the finding that the adverse effects of those emissions would fall more heavily on 

one race than another does not require sophisticated statistical analysis when, as 

here, the population of the affected community is 91% minority and represents a 

racial concentration four times the county average.

Accordingly, the undisputed facts that the SLC facility is located in a 

predominately minority community and that its operation will result in the 

exposure of residents of that community to its emissions establish conclusively 

that the issuance of the permit would have a disparate racial impact on Waterfront 

South.4 This record, together with the District Court’s findings of fact regarding 

the adverse effects and risks of that exposure, establish adverse disparate impact.

Analysis of disparate impact in similar contexts demonstrate that this 

analysis is not only entirely appropriate, but routine. For example, this Court in

4

Although the District Court generally did not repeat its findings establishing 
the disparate impact of the permit on the Waterfront South community under the 
heading “Disparate Impact” in its opinion, see SCCIA I at *32, those findings 
precede and both shape and form the basis for its conclusions regarding the 
community and the adversity of the health effects and risks associated with the 
facility’s emissions. Even if the opinion were read to exclude this analysis of 
disparate impact, the uncontested facts and District Court's findings clearly 
establish the disparate impact of the issuance of the permit on the Waterfront 
South neighborhood as a basis for affirmance of the court’s order.

-23-



Resident Advisory Board v. Rizzo analyzed disparate impact with respect to a

claim that a city's refusal to issue a permit for construction of a low-income 

housing project was discriminatory by identifying the racial character of the 

population affected by the decision -  those waiting for low-income housing, "95% 

of whom [we]re nonwhite” -  relative to the “now-all-white portion" of the city in 

which the project was to be built and from which those waiting for low-income 

housing would be excluded. 564 F.2d at 143. This Court concluded that "the 

discriminatory impact of the City's obstruction of the project could hardly be 

clearer. . . . The City's opposition to the construction of the project had an 

undeniable effect of bearing more heavily on one race than another." Id.; accord 

Shannon. 436 F.2d at 820 (holding that an agency must consider "the relevant 

racial and socio-economic information necessary for compliance with its duties" 

under the Civil Rights Act in considering site selection or type selection for low 

income housing).

Similarly, in Coalition of Concerned Citizens v. Damian, minority 

residents challenged as racially discriminatory a state's construction of a new 

highway through their community. 608 F. Supp. 110 (S.D. Ohio 1984). The

-24-



Court found that plaintiffs stated a prima facie case of disparate impact based on

the racial disproportion of the population that would be affected by the highway:

[t]here is no dispute that parts of [the highway] would 
travel through neighborhoods that range from 50% to 
over 90% racial minorities. Further, of 355 persons 
displaced by the construction of [the highway], 260 or 
nearly 75% are members of racial minorities. There is 
also ample evidence to support that the disruptions and 
negative impacts of highway construction and after the 
highway is operating will fall primarily upon 
neighborhoods that are mostly comprised of minorities.

Id. at 127.

Likewise in East Bibb Twiggs Neighborhood Association v. 

Macon-Bibb County Planning & Zoning Commission, involving a disparate 

impact challenge to the approval of a private landfill, the court "observefd] the 

obvious — a decision to approve a landfill in any particular census tract impacts 

more heavily upon that census tract than upon any other. Since census tract No. 

133.02 contains a majority black population equaling roughly sixty percent (60%) 

of the total population [of that area], the decision to approve the landfill in census 

tract 133.02 of necessity impacts greater upon that majority population." 706 

F.Supp. 880, 884 (M.D. Ga. 1989), affd, 896 F.2d 1264 (11th Cir. 1989).

-25-



Such analyses of racial divergence of the populations that will be 

affected by the authorization, termination or modification of particular facilities in 

determining disparate impact are commonplace and well established.5 

Accordingly, the disparate racial impact of a permit authorizing operation of the 

SLC facility in Waterfront South is thoroughly established in the record and 

findings of the District Court.

B. The Disparate Impact Holding Is 
Supported by the Apparent Racial 
Disparity in Other Sources of Exposure 
That Have Been Authorized to Operate in 
Waterfront South.

5

See, e.g.. Bryan v. Koch. 627 F.2d 612, 616-17 (2d Cir. 1980) (in challenge 
to closing of hospital, racial "disparity appears from comparing the 98% minority 
proportion of the [hospital's] patients with the 66% minority proportion of the 
patients served by the City’s municipal hospital system," plaintiffs "ha[d] 
sufficiently shown a disproportionate racial impact"); Hodges v. Public Bldg. 
Comm'n of Chicago. 864 F. Supp. 1493, 1501 (N.D. 111. 1994) (in challenge to 
revised expansion plan for school, court observed that 85% percent of the school's 
students and 90% of the applicant pool were minorities, and that "minorities have 
borne and would continue to bear the brunt of prolonged overcrowding and lack 
of program space" caused by the plan, and concluded that plaintiffs adequately 
showed a disparate impact); Laramore v. Illinois Sports Facilities Auth.. 722 F. 
Supp. 443, 449 (N.D. 111. 1989) (in challenge to construction of stadium in 
neighborhood with population that was "almost exclusively black," court 
compared the "alleged immediate impact" on black residents against the "indirect, 
and perhaps speculative impact" on white residents in concluding that plaintiffs 
"have adequately alleged a racially disparate impact").

-2 6 -



The record establishes that the Waterfront South neighborhood is not 

simply a 91% minority community, but a 91% minority community in which a 

host of regulated and unregulated facilities and sources of pollution and exposure 

previously have been authorized to operate. SCCIA I. at 1-2. Specifically, the 

District Court found that:

The Waterfront South neighborhood is already a popular 
location for the siting of industrial facilities. It contains 
the Camden County Municipal Utilities Authority, a 
sewage treatment plant, the Camden County Resource 
Recovery facility, a trash-to-steam plant, the Camden 
Cogen Power Plant, a co-generation plant, and two 
United States Environmental Protection Agency ("EPA") 
designated Superfund sites. Four sites within one-half 
mile of SLC's proposed facility are currently being 
investigated by the EPA for the possible release of 
hazardous substances. The NJDEP has also identified 
fifteen known contaminated sites in the Waterfront South 
neighborhood.

SCCIA I, at *2.

The practices of regulatory agencies, including the NJDEP, have 

already had a disparate impact on the area's African-American and Hispanic 

population. This heavy concentration of contaminated and polluting facilities 

suggests a cumulative disparate impact were the SLC facility were to be added.

-27-



In R.I.S.E. v. Kay, for example, the court held that "[t]he placement

of landfills in King and Queen County from 1969 to the present has had a

disproportionate impact on black residents." 768 F. Supp. at 1149. Similarly, in

Blackshear. the court found that a history of siting public housing had a racial

impact in perpetuating residential racial segregation. 347 F. Supp. 1138, 1148

(W.D. Tex. 1972); see also Kennedy Park Homes Assoc., Inc, v. City of

Lackawanna. 436 F.2d 108 (2d Cir. 1970). cert, denied. 401 U.S. 1010(1971)

(finding that Lackawanna's long history of trying to keep 99.9% of its African-

American residents confined to one of the City's three wards was substantial

evidence of disparate racial impact).

Disparate impact has also been established through evidence

suggesting that African-American or other minority communities have not been

afforded equal treatment in the administration of governmental services. For

example, in Hawkins v. Town of Shaw, the Fifth Circuit considered statistical

evidence which showed that:

[t]here are 451 dwelling units occupied by blacks in 
town, and, of these, 97% (439) are located in 
neighborhoods in which no whites reside. . . . Nearly 
98% of all homes that front on unpaved streets in Shaw 
are occupied by blacks. Ninety-seven percent of the

-28-



homes not served by sanitary sewers are in black 
neighborhoods. The record discloses that similar 
statistical evidence of grave disparities in both the level 
and kinds of services offered ... was also brought forth 
and not disputed.

437 F.2d 1286, 1288 (5th Cir. 1971). The Shaw Court found that the City had 

clearly employed a policy to administer disparate municipal services to different 

sections of town, which "led to substantially less attention being paid to the black 

portion of town." Id. As a result, the Shaw Court concluded that plaintiff had 

presented "enough evidence to establish a prima facie case of racial 

discrimination." Id.; see also Jackson v. Conway, 476 F. Supp. 896, 904 (E.D.

Mo. 1979). affd. 620 F.2d 680 (8th Cir. 1980) (recognizing that courts have 

acknowledged Title VI violations where "a municipality would provide a certain 

service to a predominantly white section of town and a disparate or inferior service 

in a predominantly black section of town"); Ammons v. Dade City. 594 F. Supp. 

at 1301 (holding that racial disparity in municipal services gave rise to inference 

of intent)(citing Casteneda v. Partida. 420 U.S. 482, 494 (1977)).

We do not suggest that the record evidence regarding the 

concentration of polluting facilities in Waterfront South presented in this hastily- 

prepared preliminary injunction proceeding is sufficient for a finding of

-29-



discrimination. However, the issue before the District Court was whether there

was evidence to establish a prima facie case of disparate treatment in determining 

whether plaintiffs were likely to succeed on the merits of their disparate impact 

claim. SCCIA I. at * 2. In that context, the evidence of an apparent concentration 

of such facilities, and an evident history of authorizing their operation in this 

minority community is probative, particularly in light of the undisputed disparate 

impact of the most recent one -  the SLC facility.

C. The Disparate Impact Holding Is 
Supported by the Apparent Racial 
Pattern in the Distribution of NJDEP- 
Permitted and EPA Regulated Facilities 
State-Wide.

The District Court's finding of disparate impact is amply supported by 

the facts proffered to support the two analyses set forth above. But beyond that 

evidence, South Camden Citizens presented prima facie evidence that NJDEP's 

permitting practices have a disparate impact across the State, with proofs that 

pollutant-producing facilities are disproportionately located in communities of 

color across New Jersey. SCCIA I. at * 42.

Plaintiffs' expert, Dr. Michel Gelobter, analyzed the correlation 

between race and the distribution of facilities that emit air pollution in New Jersey.

-30-



See SCCIA I, at * 42. Dr. Gelobter's findings are summarized at length in SCCIA

I and will not be repeated here. As to the Waterfront South neighborhood, he 

reported that this neighborhood has 21 air-polluting facilities compared to a 

statewide average of 7.8. Dr. Gelobter concluded that ZIP code 08104, which 

includes the Waterfront South area, contains 70 EPA-regulated facilities, which is 

185% of the state-wide average of 36.5 EPA-regulated facilities per ZIP code. 

SCCIA I. at * 43. Finally, considering the distribution of regulated facilities State­

wide, Dr. Gelobter's regression analysis of the relationship between EPA-regulated 

facilities and the percentage of non-whites in a ZIP code area showed that for 

every 10% increase in the percentage of non-white residents in a given ZIP code, 

the ZIP code would experience a 16% increase over the average number of 

EPA-regulated facilities. He said, based on his statistical analysis, “the odds that 

there is no relationship between the percentage of non- white residents and the 

number of facilities in a ZIP code area are less than 3 in 10 million.” SCCIA I. at * 

43.

On the basis of statistical evidence, the District Court found that in 

the State of New Jersey there is “a strong, highly statistically significant, and 

disturbing pattern of association between the racial and ethnic composition of

-31-



communities, the number of EPA regulated facilities, and the number of facilities

with Air Permits.” Id. at * 43. The District Court concluded:

At this stage of the proceedings, I find the evidence in 
the record amply supports a finding or disparate impact.
Moreover, plaintiffs' expert, Dr. Michel Gelobter's 
conclusion is further supported by the undisputed fact 
that 91 percent of the population of Waterfront South 
consists of members of racial or ethic minorities.

SCCIA I. at * 43.

The District Court found that the facts support a prima facie showing of disparate 

racial impact in NJDEP's procedures for approving air quality permits. Id. at * 44.

Courts have based findings of disparate impact on statistical evidence 

showing correlation between the effects of multiple decisions and race in cases 

involving employment, zoning, fair housing, and other topics. These cases show 

the trial court's discretion to fashion the disparate impact analysis using statistical 

evidence as the basis for the prima facie case. For example, in Bronson v. 

Crestwood Lake Section 1 Holding Corp.. 724 F. Supp. 148, 153-155 (S.D.N.Y.

1989), the court in a housing case relied on statistics showing disparate impact to 

prove a pattern of racial discrimination.

-32-



There, the court granted a preliminary injunction in a Title VIII case 

brought by African-American section 8 voucher recipients. The court examined a 

landlord's policy requiring tenants to have an income level three times the amount 

of monthly rent. Plaintiff used statistical evidence of all renters in Yonkers, New 

York who — after payment of taxes and rent — would have an income level equal 

to or greater than the State "standard of need" level. See id. at 154. According to 

1980 census figures, that pool consisted of 16,883 households of which 2,820 

(16.70%) were minority households, and 14,063 (83.30%) were non-minority 

households. See id. Applying the three-times-income standard to the applicant 

pool would effectively disqualify 6.25% of minority families from renting, but 

only serve to disqualify 0.25% of non-minority households from the pool. See id. 

The Court observed that "the odds of being excluded from [renting] by the triple 

income test are 2.5 times greater for minority persons than non-minority persons." 

Id. The court concluded that on an application for preliminary injunction, the 

evidence in the record "amply supports a finding of disparate impact." Id.

See also Huntington Branch. NAACP v. Town of Huntington. 844 F.2d 926, 929 

(2d Cir. 1988), affd. 488 U.S. 15, 17 (1989)("Without endorsing the precise

-33-



analysis of the court of appeals, we are satisfied on this record that disparate 

impact was shown..." ).

Thus, the statistical evidence shows a correlation between distribution 

of regulated facilities and the percentage of minority residents. This is competent 

evidence of disparate impact and supports the District Court's holding.

-34-



CONCLUSION

WHEREFORE, for the foregoing reasons the undersigned Amici 

urge this Court to affirm the findings of the District Court that NJDEP violated 

Title VI of the Civil Rights Act of 1964 and the implementing regulations.

Resile ubmitted,

Thomas Henderson, Esq. 
Janette L. Wipper, Esq. 
Lawyers' Committee for Civil 
Rights Under Law 

1408 New York Avenue, N.W. 
Washington, D.C. 20005-2124 
(202) 662-8600

Robert J. Del Tufo, Esq.
Ellen O'Connell, Esq.
Skadden, Arps, Slate,
Meagher & Flom LLP 

One Newark Center - 18th Floor 
Newark, New Jersey 07102 
(973) 639-6800

Dennis Courtland Hayes, Esq. 
National Association for the 

Advancement of Colored People 
4801 Mount Hope Road 
Baltimore, Maryland 21215 
(410) 486-9191

Elaine R. Jones 
Theodore M. Shaw 
Norman J. Chachkin 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street, Suite 1600 
New York, New York 10013-2897 
(212) 965-2200

-35-



Ronald Thompson, Esq.
Garden State Bar Association 
Law Office of Ronald Thompson 
213 South Harrison Street 
East Orange, New Jersey 07018 
(973)673-1001

Regina Waynes Joseph, Esq.
Garden State Bar Association 
320 South Harrison Street 
16th Floor
East Orange, New Jersey 07018-1333 
(973) 744-5208

Ken Kimerling 
Margaret Fung
Asian American Legal Defense 

and Education Fund 
99 Hudson St. -12th Floor 
New York, New York 10013 
(212) 966-5932

-36-



CERTIFICATION OF BAR MEMBERSHIP

I, THOMAS J. HENDERSON, hereby certify that I am a member in good 

standing of the Bar of the United States Court of Appeals for the Third Circuit.

Dated: July 31, 2001
Washington, D.C.

CERTIFICATION OF SERVICE

I, THOMAS J. HENDERSON, an attorney at law and Member of the Bar of 

the United States Court of Appeals for the Third Circuit, do hereby certify that I 

have caused to be served on the parties listed on the attached service list, by first 

class mail and overnight delivery service, a true and correct copy of the foregoing 

Brief.

Dated: July 31, 2001
Washington, D.C.

-37-



CERTIFICATION OF COMPLIANCE

I, THOMAS J. HENDERSON, hereby certify that the brief complies with 

the type-volume limitation of R. 32(a)(7)(B). The brief contains 6890 words.

Dated: July 31, 2001
Washington, D.C.