So much for remote monitoring, environmental justice EPA comments

National Environmental Justice
Advisory Council Meeting
Atlanta,  Georgia
October 21-23, 2008


Public Comment

Environmental Justice Best Practices Limited by
Pre-Baconian Anti-Empirical Biases
St. Augustine, Florida
October 13, 2008
Dwight Hines

Rule 1B-26.003, Florida Administrative Code (1), are the rules that
all Florida state and local governments must follow for electronic
records and it is inextricably intertwined with the Florida Public
Records Act, Chapter 119, Fl. Stat. (2).   It makes sense, if you
don't know what records an agency or department are keeping, or how
the records are stored, or what the different variable and value
labels are for the data in the records, to say that it is not possible
for a City employee to respond completely or accurately to Florida
Open Records requests if the City is not in compliance with Rule
1B-26.003, F.A.C.

Given the amounts of data that a small City generates in a day for
City owned vehicles, and given the importance those data have for
establishing baselines of fuel use, and exhaust produced, and where
and when, a documented database maintained by a City would be ideal
for establishing different baselines that could be used for neutral
evaluations of novel fuel efficiency programs or air pollution
reduction strategies. Sir Francis Bacon, who many scholars credit with
introducing empiricism into science (3), would approve of people
examining the data who would not have biases caused by knowing the
drivers or having ownership of the vehicles or the wholesale gasoline
dealers.  Similarly, the Institute of Medicine Report, (4, in press),
would likely place these types of objective data collection and
analyses, if performed by qualified personnel who were not directly
involved in the program being evaluated, as equivalent to double-blind
studies, if proper controls are included.  Linking the fuel and
exhaust and locations data with health and health care indicators
could be as routine as checking outflow from waste treatment plants
and would be compatible with the objectives of the state, federal, and
international, evidence-based, environmental health programs that are
currently determining guidelines for recognition (5-12), treatment and
prevention (13-16).

Unfortunately, the limits on best practices of environmental justice
are not due to lack of data collected or lack of data stored in easily
transferred electronic formats, but are due to inabilities of local
governments and citizens to examine the data themselves.  My position
at this time is that fear of numbers, anxiety over realistic,
practical evaluation, and inability to see computers as determining
strategy are far more critical barriers to achieving environmental
justice than the old practices of racial segregation and ethnic
animosity.

One would think that given the great distress caused by the unstable
financial markets that local citizens and employees would be demanding
to see how their tax money is being spent and wanting to know how less
be spent.  One would also think that managers of public resources
would want to achieve the best measurable results possible to show
their skills and to make themselves more valuable in the marketplace.
No.  The reality is different and until the anti-empirical biases are
identified, and corrected, there will be slow progress in improving
the more superficial ethnic health and health care disparities.

The City of St. Augustine, in Florida, is a good example: Agencies
have purchased and use computer hardware and software.  Getting data
into the machine and being able to obtain simple summary data is all
that is done or expected.  Management using hard data as quantitative
guides or for evaluation or accountability, or just mere estimates of
risk parameters is not possible.  Managers act as if the amount of
money wasted due to lack of information is secondary to the risks of
being held accountable for specific responsibilities.  The actual role
of the information system in these situations is that of a frail beast
who they have tamed, but at the price of not being able to comply with
the required laws and rules of Florida for electronic records, and at
the costs of sustaining old disparities.

The historical context of my observations are similar to the contexts
of other towns that have problems with resolving real and potential
harms that act differentially on different groups.  A residual history
of government endorsed "white only" police, fire, and other City
departments basically continues, but the reasons are different.  The
fact that there are no Afro-American businesses in the old City, or
that there are no Afro-American entertainers at the bars or lounges is
not noticed and, if it is, there are reasonable explanations for their
absence.   In two large public meetings called by the NAACP,
criticisms from the Afro-American community, which has substantially
declined in population in the City in the past 50 years, about poor
City services, and differential treatment by the police have not
resulted in perceptible or real changes.  What makes the situation
difficult is that the City, after repeated requests for records,
records that are not exempt from the public records act, has failed to
comply with the laws or the rules on electronic records.

In this continuing saga of non-transparency, the City was found guilty
of illegal toxic dumping into the old City Reservoir, a place people
used to fish.  The dumping killed all the fish.  The City successfully
negotiated with the FL-DEP to return the toxic materials to the
original place but citizens, mostly Afro-American citizens, blocked
that decision so they and their families would not have more exposures
to the toxic materials.  The City successfully avoided responding to
subpoenas for records and testimony so it's unknown how the toxic
mistakes were made.

It was recently revealed that the pipeline from the City's wastewater
treatment plant into the Matanzas River was cracked and approximately
half of the volume flowed into the river and half into the saltwater
marsh.   The City did not report the broken pipe to the FL-DEP, or to
the citizens, for five years.  Later I learned, as I was going through
other records at FL-DEP, that for approximately three months the City
had dumped untreated sewage into the Matanzas River and onto the
saltwater marsh.  Again, no citizens were notified.  FL-DEP was
notified, but they kept the secret.

City attorneys have still not released records on how much money
outside attorneys have cost the taxpayers so far in defending the
wrongful actions of the City. The City continues to refuse to produce
other records as required by state law, although the City will provide
you with an inadequately, according to Florida Rules, documented copy
of one City SQL database.

That environmental justice is secondary to the City being
anti-empirical is supported by the fact that the City has never
conducted an economic analysis to aid decision making on any topic.
Of course, it's desirable to avoid such analyses because the amounts
of money would be difficult to explain for an economic valuation of
wetlands disrupted or of fishing areas destroyed, or the health costs
of establishing E. coli colonies in the saltwater marsh adjacent to
the river.  The E. coli sampling and counts, conducted after citizens
made complaints about the complete lack of biological testing on the
affected areas before the biologist said there was no harm done to the
marsh, were unacceptably high.   It may be worth considering that one
of the key indicators of anti-empiricism is that once valuable
properties are not seen as diminished in value by pollution, there can
be no recognition of the specific dollar amount of harms that
occurred.  Fortunately, there are a number of different acceptable
methods (21) to determine the value of the loss of an ecosystem or
habitat, and these valuations help in determining what strategy is
best for ecological restoration (17-19).  Although some contaminant
induced changes in the St. Augustine Matanzas River habitats, like
those observed in dominant taxa moving from oligochaetes to amphipods,
as well as significant changes in the number of taxa, are likely
irreversible (20), long term direct, indirect, and ripple effects on
human beings, mostly Afro-Americans (22—30), are not measured.

Because of the high levels of E. coli and other contaminants, the
Florida Department of Aquaculture prohibits the taking of shellfish
from the Matanzas and San Sebastian Rivers in St. Augustine.   There
are no warning signs about the prohibition of shellfish near or in the
rivers.  The Aquaculture Department says that they don't "do" signs.
They say call the health department.  The health department states
that they don't "do" signs.  The City also does not "do" signs —
"everybody knows not to eat shellfish from there", according to one
City Commissioner.

Interpreting the illegal dumping of toxic materials in the old City
Reservoir and not repairing the broken wastewater pipeline — spewing
out millions of gallons of sewage into the River and the saltwater
marsh — and keeping it secret for five years — are actions complicated
by the absence of basic health care status of Afro-Americans in St.
Augustine.   The St. Johns County Health Department has collected data
from random surveys distributed in St. Augustine's County of St. Johns
for 2002 and 2007 (31).  Reviewing the results you can see that all
the categories for Afro-Americans and Hispanics are empty.  The
explanation, which has been acceptable for at least five years, is
that the random sampling didn't produce large enough numbers to be
meaningful.  No one has suggested that an alternative and valid
sampling technique (stratified, etc.) be used.  I would argue that
because the health of a community is influenced by all its members,
Afro-American or white or Hispanic, the results reported are not
generalizable or valid or reliable.  And it makes relating
environmental factors to individual or group factors impossible.  That
is not blatant old-time racism, it is anti-empiricism.

Remedies to the wrongs caused by anti-empiricism, if the wrongs impact
an individual right (32), likely will not be considered by courts in
the United States in the near future, but there are some wonderful
international developments moving in beneficial directions for all
human beings (33) that provide mechanisms for relief.

References

(1) Rule 1B-26.003, Florida Administrative Code, Electronic Records.
http://dlis.dos.state.fl.us/barm/rules/1B26_003FAC.cfm (accessed on
October 11, 2008).

(2) Florida Public Records Act.
http://www.leg.state.fl.us/statutes/index.cfm?app_mode=display_statute&url=ch0119/ch0119.htm
(accessed on October 11, 2008)

(3) Muntersbjorn, M. "Francis Bacon's Philosophy of Science: machina
intellectus and forma indita."
http://philsci-archive.pitt.edu/archive/00001089/ (accessed October
13, 2008).

(4)  Eden, J., Wheatley, B.,  McNeil, B., Sox, H. (Editors). Knowing
What Works in Health Care: A Roadmap for the Nation.  Committee on
Reviewing Evidence to Identify Highly Effective Clinical Services,
Institute of Medicine, National Academies, in press 2008, National
Academies Press, Washington, D.C.

(5) AGREE Collaboration. 2003. Appraisal of Guidelines for Research &
Evaluation (AGREE) Instrument,  www.agreecollaboration.org (accessed
October 13, 2008);   http://www.guideline.gov/

(6) AHRQ (Agency for Healthcare Research and Quality). 2007. Effective
Health Care—Home Page.  http://effectivehealthcare.ahrq.gov/ (accessed
October 10, 2008).  See National Guideline Clearinghouse, 2008,
National Guideline Clearinghouse (accessed October 13, 2008).

(7) CADDIS (Causal Analysis/Diagnosis Decision Information System),
Environmental Protection Agency, http://cfpub.epa.gov/caddis/index.cfm
(accessed on October 13, 2008).

(8) Krieger, N., et al, The Public Health Disparities Geocoding
Project,  http://www.hsph.harvard.edu/thegeocodingproject/ (accessed
on October 11, 2008).

(9) American Public Health Association, Health Disparties Database,
http://www.apha.org/programs/disparitiesdb/  (accessed October 13,
2008).

(10)  U.S. Department of Health and Human Services, Community Health
Status Indicators, http://communityhealth.hhs.gov/homepage.aspx?j=1
 (accessed October 13, 2008)

(11) Association of State and Territorial Health Officials, Community
Health Status Indicators,
http://www.astho.org/?template=health_status_indicators.html,
(accessed on October, 13, 2008).

(12) U.S. Department of Health and Human Services, National Health
Care Disparities Report, 2003, Rockville, Maryland,
http://www.ahrq.gov/qual/nhdr03/nhdr2003.pdf (accessed on October 13,
2008).

(13) National Association of County and City Health Officials,
Protocol for Assessing Community Excellence in Environmental Health,
http://www.naccho.org/topics/environmental/CEHA/paceeh.cfm, (accessed
October 13, 2008).

14) U.S. Department of Health and Human Services, Centers for Disease
Control, Environmental Public Health Performance Standards,
http://www.cdc.gov/nceh/ehs/envphps/, (accessed on October 13, 2008).

(15) _________, National Center for Environmental Health, Ten
Essential Services of Environmental Health,
http://www.cdc.gov/nceh/ehs/envphps/default.htm, (accessed on October
13, 2008).

(16) U.S. EPA, Final Report: US EPA Environmental Management System
Pilot Program for Local Government Entities. 2000,
http://www.epa.gov/owm/iso14001/emsrepor.pdf, (accessed on October 13,
2008).

(17)  World Resources Institute, Economic Valuation of Coastal
Ecosystems in the Caribbean: Project Overview — January, 2008,
http://pdf.wri.org/fisheries_valuation_tool_users_manual.pdf,
(accessed October 13, 2008); Costanza, R. & Farber, S. Introduction to
the special issue on  the dynamics of ecosystem services: integrating
economic perspectives.  Ecological Economics 41  (2002) 367-373.

(18) Casadesus-Masanell, R. HBS Cases: The Value of Environmental
Activists. http://hbswk.hbs.edu/item/5797.html (accessed October 13,
2008); King, D., Mazzota, M. & Markowitz, K.  Introduction to Relative
Ecosystem Valuation,
http://www.ecosystemvaluation.org/Indicators/about.htm#ipurpose
(accessed October 13, 2008);

(19)  Sunstein, C.  Irreversibility.  Harvard Law School Working
Paper, 08-25, Preliminary draft, July 12, 2008,
http://www.ssrn.com/abstract=126-323,  (accessed on October 13, 2008)

(20) U.S. Environmental Protection Agency, Benefits of Restoration,
http://www.epa.gov/owow/wetlands/restore/benefits.html, (accessed
October 13, 2008).

(21) Viscusi,W., Huber, J., Bell, J.  The Economic Value of Water
Quality.  Vanderbilt Law School, 2008,
http://ssrn.com/abstract_id-1084077 (accessed October 11, 2008)

(22)  Scott, D.  Confronting chronic pollution: A socio-legal analysis
of risk and precaution.  CLPE Research Paper 23/2008, forthcoming,
Osgood Hall Law Journal 46(2) Special Issue on Environmental Law
(2008), http://ssrn.com/abstract=1262791 (accessible October 13, 2008)

(23)  Borchardt MA,  Chyou P,  Devries EO,  Belongia EA.  Septic
system density and infectious diarrhea in a defined population of
children. Environ Health Perspect 2003;111:742-748.

(24)  Borchardt MA.  Biologically active contaminants in aquitards.In:
Cherry JA, Parker BL, Bradbury KR, Eaton TT, Gotkowitz MG, Hart DJ,
Borchardt MA (ed).  Contaminant Transport Through Aquitards: A
State-of-the-Science Review, American Water Works Association Research
Foundation:  Denver, CO,  2006, pp:126. (accessible October 13, 2008)

(25) Comer, P. & Goodin, K. Biodiversity at Risk in Isolated Wetlands.
Wetlands Newsletter, 28(2), 2006, Environmental Law Institute,
http://www.natureserve.org/publications/isolatedwetlands.jsp,
(accessible October 13, 2008)

(26) Comer, P., et al, Biodiversity Values of Geographically Isolated
Wetlands in the United States, 2005, NatureServe, Arlington, Virginia,
http://www.natureserve.org/library/isolated_wetlands_05/isolated_wetlands.pdf
(accessible October 13, 2008)

(27) Madden, Goodin, K.  Ecological classification of Florida Bay
Using the Coastal Marine Ecological Classification Standard (CMECS),
2007, Natureserve, Arlington, Virginia,
http://www.natureserve.org/library/munson_final.pdf (accessible
October 13, 2008)

(28) Beauvais, G. et al, Element Distribution Modeling: A Primer.
Version 2, June 1, 2006. Natureserve, Arlington, Virginia,
http://www.natureserve.org/prodServices/pdf/EDM_white_paper_2.0.pdf,
(accessible October 13, 2008). Or Musings Upon Depicting the
Geographic Arrangement of Biota, with Ample Reference to the Harsh
Lessons of the Master Experience.

(29) Florida State University, Florida Resources and Environmental
Analysis Center, Florida Natural Areas Inventory, Biodiversity Matrix,
and Guide to the Natural Communities of Florida, February 1990,
http://www.fnai.org/index.cfm, (accessible October 13, 2008).

(30)  Robert Wood Johnson Foundation, Unrealized Health Potential:
Florida, 2008, http://www.commissiononhealth.org (accessed on October
13, 2008).

(31)  Johnson, T., Yu, B., Murray, M. & Huang, Y.  2007 Florida
Behavioral Risk Factor Surveillance System (BRFSS) Data Report.  2008,
Division of Disease Control, Florida Department of Health, Bureau of
Epidemiology, Chronic Disease Epidemiology Section.
http://www.doh.state.fl.us/Disease_ctrl/epi/BRFSS_Reports/2007BRFSS/StJohns.pdf
(accessed October 14, 2008).

(32)  Trucios-Haynes, E. & Powell, C.  The Rhetoric of Colorblind
Constitutionalism: Individualism, Race and Public Schools in
Louisville, Kentucky. 112 Penn State Law Review 947, 2007-2008.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1188662 (accessed
October 14, 2008)

(33)  Mahon, Claire  "Progress at the Front: Draft Optional Protocol
to the International Covenant on Economic, Social, and Cultural
Rights.  October, 2008, abstract accessible at
http://ssrn.com/abstract=1259694, in press, Oxford Human Rights Law
Review, 8 (4), 2008.


**********************************************************************
For Listserv Instructions, see http://www.lawlists.net/cyberia
Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot
Need more help? Send mail to: Cyberia-L-Request@...
**********************************************************************