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Law Offices
HOLLAND & KNIGHT LLP
2100 Pennsylvania Avenue, N.W.
Suite 400
Washington, D.C. 20037-3202

202-955-3000
FAX 202-955-5564
http://www.liklaw.com

April 14, 1999
Atlanta
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ROBERT L. RHODES, JR.
202-457-5943

Internet Address:
rrhodes@hklaw.com
Administrator Carol M. Browner
U.S. Environmental Protection Agency
401 M Street, S.W.  (Mail Code 1101)
Washington, D.C. 20460

Dear Administrator Browner:

             I am pleased to forward to you the enclosed Final Report of the Title
VI  Implementation  Committee, a Committee of the National Advisory Council for
Environmental Policy and Technology (NACEPT).  This report responds to your
request that the Committee review and evaluate state and local permitting programs
covered by Title VI.

             While the Title VI Implementation Committee did not reach consensus
on  the policies by which EPA could further develop a Title VI program, they did a
comprehensive report which  they believe will provide the Agency with a detailed
analysis of the issues necessary for the Agency's policy decisions.

             I hope you will find this report useful as EPA considers its policies in
the implementation of Title VI of the Civil Rights A.ct. The Title VI Implementation
Committee, and the NACEPT Council welcome your review and response to their
work.
                                            Sincerely,
                                            Robert L. Rhodes, Jr.
                                            Chair, NACEPT
RLR:nct
WAS1-431399

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     Outlook
Policy Forum
                  Outlook Policy Forum, Inc.
                  1199 North Fairfax Street
                  Suite 450
                  Alexandria, VA 2.2,314
7703.548.8166
F 703.548.8170
www.outlookpolicyforum.org
       March 9,1999

       Chair and Members
      -National Advisory Council
         for Environmental Policy and Technology [NACEPT]

       Dear NACEPT Chair and Members:

             We are pleased to transmit the final report of the Title VI Implementation Advisory
       Committee (Committee). The report reflects many hours of frank discussion among a diverse
      ^roup of stakeholders directly affected by EPA's implementation of Title VI of the Civil Rights
       Act, as well as experts from academia.

             The charge delivered to the Committee by EPA Administrator Carol M, Browner asked
       us to review and evaluate state and local permitting programs covered by Title VI.  Administrator
       Browner further advised us that "while finalizing EPA's Title VIInterim Guidance is not
       included in the committee charge, EPA may consider revision or supplementation to the Interim
       Guidance if necessary to fulfill the Committee's recommendations."  As predicted by this aspect
      af the charge, the Committee's discussions have inevitably returned time after time to the Interim
       Guidance, with members debating both the policies the Guidance contained and the issues it
       omitted.

             The issues involved in developing an acceptable environmental justice policy at the turn
       of this century are both complex and difficult.  Committee members have shared many hours of
       enlightening and constructive conversation On Title VI and the broader issues of environmental
      justice. While we have not reached consensus on the policies that should guide EPA's efforts to
      develop a Title VI program, we have put forth a comprehensive report which will provide EPA
      with a full analysis of the issues necessary for the Agency's policy decisions. The Committee
      does not consider the absence of consensus on these crucial questions a failure.  Instead, we
      believe this to be an inevitable outcome of a serious effort to grapple with these important issues
      in a diverse and committed group in a short period of time.

             The Committe,e hereby transmits a report that explains our divergent views regarding the
      full range of policy options available to EPA, the  states, and local governments. We also
      recommend a detailed agenda for the next steps EPA should take in revising the Interim
      Guidance, developing a model plan for state and local programs, and improving the scientific
      and technical information necessary to consider Title VI complaints in a fair and comprehensive
      manner.

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       Although the Committee believes that the report will be valuable to the EPA and that the
report should go forward to the NACEPT, the Committee recognizes that a serious impediment
in process requires some key members of the Committee to abstain from voting on the filial
report as adequately reflecting many of the views and concerns of the environmental justice
community. The demanding schedule of review of a report numbering close to 100 pages was
workable for those that earn their livings as participants in this kind of project. It was neither
accessible nor workable for grassroots activists already faced with demanding agendas hi their
-home communities. The Committee regrets this reality and hopes EPA will redouble its efforts
to involve representatives of the communities that are most directly affected by these issues.
                                                                     '   .       j

       Tfee Committee commends EPA for realizing the importance of an ongoing dialogue with
its stakeholders as it struggles to develop a fair and transparent policy for implementing Title VI.
Each of us is committed to continuing this dialogue, with the Agency and with each other. We
have worked hard and recognize that there is much more work to be done. We hope that this
report makes it easier for EPA to.make its policy decisions and to do what we managed to do
"with each other: talk straight, respect differences, and remain dedicated to righting discrimination
in the most effective way possible.
                                 Elliott P. Law^Chaip
                                 Title VI Implementation Advisory Committee
                                 National Advisory Council for Environmental
                                        Policy and Technology


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                          TABLE OF CONTENTS
INTRODUCTION AND OVERVIEW
      The Committee's Charge, Composition, and Process
      EPA's Interim Guidance and the Select Steel Decision
      Summary of the Issues and Committee Views
      Redefining the Committee's Mission
      Eight Consensus Principles
      Roadmap to This Report
                             i

NEXT STEPS FOR EPA
      Revision and Implementation of the Interim Guidance
             Step One: Stakeholder Consultations, Especially at the Grassroots
             Step Two:  Revision and Implementation,
      Beyond Permitting: Consideration of Other Areas of Concern
      Research and Data Gathering on Cumulative Risk and Synergistic Effects
      Development and Distribution of Assessment Tools
      Legal Research and Analysis
      The Utility of Pilot Projects
      The Best Context for Title VI Programs

 A TEMPLATE FOR STATE AND LOCAL GOVERNMENT PROGRAMS
       Two Paths to Equity
       Deference to State and Local Government Permitting Decisions
       State and Local Government Flexibility
       Proactive Problem Solving
       Incentives
              State and Local Governments
              Industry
              Community Groups
       Addressing Cumulative Effects
              A Comprehensive Inventory of Pollution Sources
              Evaluating Potentially Adverse Impacts
       Expansion of Existing Programs
       Public Participation
       Participation by Government
       Community Monitoring
       Significance of the Template
 1
 1
 2
 5
10
ii
11

11
16
16
II
11
20
21
22
23
23

24
25
25
28
29
33.
 34
36
 38
 41
 42
 43
 46
 47
 52
 53
 51

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EIGHT ISSUES OF SUBSTANCE
      Defining and Evaluating Effects
      Identifying the Community of Concern
      Determining Disparity
      The Role of Existing Standards
      Agency Jurisdiction
      New versus Renewal Permits
      Mitigation
      Justification

CONCLUSION

APPENDICES
55
55
63
68
70
23
78
80
88

91
                                                                            92

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INTRODUCTION AND OVERVIEW


The Committee's Charge, Composition, and Process

       The Title VI Implementation Advisory Committee (Committee) was convened on April

14, 1998 by EPA Administrator Carol M. Browner. The charge she delivered to the Committee

asked that it review and evaluate existing techniques used by state and local agencies that receive

EPA funding and operate permitting programs covered by Title VI, 42 U.S.C. §§2000d-d7. A

copy of that charge is attached to this report as Appendix A.1 The Committee commenced

deliberations with the overall goal of developing a single set of recommendations for EPA to use

in implementing its Title VI policies. This goal included developing advice for state and local

governments2 concerned about these issues, which the Committee described as developing a

"template" for state and local environmental justice programs.

       The Committee is comprised of representatives from the EPA constituencies directly

affected by Title VI and also includes advisors from academia. A list of Committee members is
       1 Two kinds of documents are included as appendices to this report: (1) additional views
 filed by members of the Committee following its approval of the final report (numbered
 appendices) and (2) additional resource materials. Unless indicated otherwise in the final report,
 the Committee has not endorsed the content of these appendices.

       2 Unless otherwise indicated, the terms "state"and "local government" are used
 throughout the report to connote the governing entity as a whole, including agencies that play
 different roles in making decisions with respect to environmental justice issues. Thus, a "state"
 would include a state environmental agency, as well as the entire executive, legislative, and
 judicial branches of state government.  Similarly, a "local government" includes agencies that
 regulate, land use decision makers, sewage treatment plants, and other executive, legislative, and
 judicial agencies, departments, or councils.  However, it is worth noting that the "state or local
 government representatives" on the Committee were environmental agency officials with
 considerable expertise in the application of environmental justice principles to government and
 industry.

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attached to this report as Appendix B.  The Committee completed its deliberations and submitted




a final report to the Administrator on March 2, 1999. The Committee held a total of four plenary




sessions, and also spent many hours considering the issues in three "workgroups" of participants.
       Workgroup I, entitled "Assessment," debated the factors involved in determining the




merits of a Title VI complaint, including such central issues as defining the affected community,




deciding what problems to include in the universe of adverse effects, and evaluating the nature




and degree of the disparate impact that violates 'the statute's prohibition on discrimination.




       Workgroup II, entitled "Mitigation," discussed the remedies that could be implemented to




lessen or eliminate discrimination in the context of individual facility permitting decisions as




well as broader programs that address disparities outside the permitting process.




       Workgroup III, entitled "Implementation," was assigned to develop a template for state




and local environmental justice programs.




       All three workgroups ultimately produced draft reports that provided one source of




material for this final report.  Those draft workgroup documents, along with the respective lists




of workgroup members, are attached to this report as Appendices C, D, and E.  It is important to




note that these drafts did not receive final endorsement by members of the workgroups because a




decision was made to focus the Committee's effort on crafting this report.




EPA's Interim Guidance and the Select Steel Decision




        Two months before the Committee convened, EPA issued the Interim Guidance for




Investigating Title VI Administrative Complaints Challenging Permits (Interim Guidance), a

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  document designed to "provide a framework" for processing Title VI complaints that allege




  "discriminatory effects resulting from the issuance of pollution control permits by state and local




  governmental agencies that receive EPA funding." Interim Guidance at 1. A copy of the Interim




  Guidance is attached to this report as Appendix F. Aware that the Interim Guidance was




  controversial and had engendered strong opposition among some of the Agency's most important




  constituencies, Administrator Browner instructed the Committee that "while finalizing EPA's




-  Title Viiaierim guidance is not included in the committee charge, EPA may consider revision or




  supplementation to the interim guidance if necessary to fulfill the Committee's




  recommendations." As predicted by this aspect of the charge, the Committee's discussions




  inevitably returned time after time to the Interim Guidance, with members debating both the




• policies it contained and the issues it omitted.




         In October 1998, several months after the Committee began deliberations, EPA issued its




  first decision under the Interim Guidance, dismissing the complaint in St. Francis Prayer Center




  v. Michigan Department of Environmental Quality. EPA File No. 5R-98-R5 (Select Steel).




  Members of the Committee read Select Steel with great interest, ultimately arriving at conflicting




   interpretations of its significance, with some members believing that it is a positive precedent,




   others viewing it as a negative precedent, and still others believing the decision will have little




   lasting impact.  A copy of the opinion is attached to this report as Appendix G.




          Although suggested revisions to the Interim Guidance - on the basis of Select Steel or




   otherwise -- were not the central mission of the Committee, reactions to  the guidance and the'




   decision had a major effect on the Committee's deliberations, serving the positive  purpose of




   expanding and clarifying the issues at stake, but at the same time underscoring how difficult




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 these issues are to resolve.




       In sum, it is safe to say that no member of the Committee is satisfied with the Interim




 Guidance. While some see it as a "good start" that needs further development, others are




 unsparing in their critiques.  As one industry representative put it, the guidance hurts all




 constituencies and "exists to make the business community think they should not locate near




 minority communities and communities think they will never win."  Many members of the




 Committee attribute these flaws to EPA's failure to consult with outside stakeholders during




 development of the guidance.




       One persistent criticism of the Interim  Guidance is that it is unclear or silent with respect




 to the substance of the crucial issues that confront pennitting authorities. State and industry




 representatives on the Committee contend that because the guidance is unclear, it operates as a de




facto stay once a complaint was filed, casting a cloud over the permit that slows and can even




 stop its implementation.  Several members believe that the inequitable outcomes caused by this




 uncertainty are especially discouraging to those who  might consider undertaking negotiations




 with communities at the beginning of the permitting process.  State representatives further note




 that the unreasonably  short time frames imposed by the guidance make it virtually impossible to




 negotiate solutions with states willing to try to correct the problem. Everyone in this group urges




 EPA to redraft the Interim Guidance as quickly as possible.




       Environmental justice advocates, including grassroots community representatives, and




 Committee members from the academy, are somewhat more satisfied with the Interim Guidance




 than their industry and government colleagues. However, they believe that aspects of the




 guidance unlawfully restrict Title VI complaints and create hurdles for prospective complainants.




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Some are more troubled by the Interim Guidance in the wake of the Select Steel decision} which




many view as an objectionable and unfortunate precedent. These members of the Committee do




not agree with the observation that the guidance operates as a de facto stay on the permitting




process. Rather, they believe that EPA's long delays in processing complaints allow harmful




projects to go forward and become an accomplished fact before EPA gets around to deciding the




complaint, thereby allowing project sponsors to reap the benefits of Agency inaction. Lastly,




these members contend that the Interim Guidance is too narrowly focused on permitting and that,




in addition to revising it quickly, EPA should proceed without delay to consider other




environmental problems confronting communities of color.




       Significantly, no member of the Committee endorses the idea of leaving the Interim




Guidance vague, a result that would mean that EPA would develop Title VI policy on a case-by-




case basis. Rather, the Committee recognizes the need of all stakeholders for coherent, uniform




standards, however much they disagree on what those standards should be.




Summary of the Issues and Cummittee Views




        As the above discussion indicates, members of the Committee have strikingly different




views regarding the parameters of the mission that was intended by the Administrator, as well as




the substance of the standards that should govern the resolution of Title VI disputes.




        Some participants believe that the group's mission is limited to the validity of Title VI




 claims raised in the context of individual permitting decisions. They argue that permitting




 should remain the primary focus of this report, and a few contend that permitting should be the




 exclusive subject addressed by the Committee. Other members believe that to solve the real

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environmental problems faced by people of color and, not incidentally, to prevent the filing of




Title VI complaints, EPA, the states, and local governments must take a significantly broader




view, addressing disparate impacts more comprehensively. They believe that confining




consideration of Title VI disputes to the permitting of whichever facility is unlucky enough to




need a renewal or modification of its permit at the moment would be unfair to the facility's




owner and to the community. Still other members maintain that the same core issues are at stake




in the full range of environmental decisions that may have discriminatory effects and that the




Committee to must come to grips with those issues however its mission is defined.




       Environmental justice .advocates recommend that the Committee take an expansive view




of the problems posed by polluting facilities located in communities comprised of a protected




class, drawing health, cultural, economic, and social concerns within the ambit of Title VI.




While some government representatives are sympathetic to this view, others agree with industry




representatives that human health effects are the only legitimate focus of the Committee's




deliberations.




       Members of the Committee generally agree on the list of the core issues that must




determine the success of a Title VI complaint. However, once again,  they have divergent views




on the appropriate resolution of those questions.




       Some members believe  that a facility's compliance with existing regulatory requirements




should defeat a Title VI claim.  Others argue that EPA and other decision makers must go




beyond those requirements to assess the cumulative risks and synergistic effects that face




communities comprised of a protected class.  They contend that proof of a disparate impact, even




if all applicable legal requirements are met, should result in either denial of a permit or




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withdrawal of federal funds. These conflicting views mark the most important fault line between




members of the Committee and are the issues that have proved the most difficult to resolve.




       Members of the Committee also disagree about the degree of disparity needed to support




a Title VI complaint, with some arguing for any statistically measurable difference in adverse




effects between a community comprised of a protected class and the general population. Others




contend that the disparity must be "substantial or significant."




       As for the troubling and difficult question of what adverse effects to include in the




analysis of disparate effects, some participants argue that the appropriate universe is defined by




the scope of federal, state, and local environmental laws.  They contend that disparate effects




under Title VI should be limited to actual harm or imminent threats to public health.  Others




strongly disagree with this approach, arguing that all of the adverse effects caused by the




permitting decision ~ including harm to the environment and the economic, social, and cultural




 well-being of people of color — must be taken into account.




        The Committee heard public testimony proposing a transparent but narrow test to




 determine disparate impact that focuses on available public health statistics for populations living




 within one-half mile of the facility to be permitted (or a greater distance  if necessary to include at




 least 1,000 residents). See Environmental Justice Protocol proposed by Jerome Baiter,




 representing the Public Interest Law Center of Philadelphia, included with this report as




 Appendix H. Some Committee members believe that such precise calculations, however




 appealing in their simplicity, could never capture the adverse effects  that should trigger




 government action. Others argue that a test based on health statistics would sweep data on




 illness that has no "causal connection" to pollution releases into the evaluation of disparate




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impact, a result they view as both illegal and undesirable.




       Members also have different views regarding the threshold question of how to define the




"affected community" versus the "general population," with some arguing for a simple "radius




approach" such as that proposed in the Environmental Justice Protocol, and others arguing for a




site-specific analysis of exposure pathways to determine the populations directly affected by a




facility's operation.




       Once a determination of disparate impact is made, members further diverge on what




should happen next in the decision making process. Many return to the complicated issue of




agency "jurisdiction," with the term used in both the remedial and geographic sense. Thus, many




participants argue that the scope of Title VI complaints cognizable by EPA and the courts, as




well as the scope of any mitigation required in response to such complaints, must be limited to




the scope of applicable regulatory requirements. They contend that state and local regulatory




agencies do not have the authority to control pollution caused by unregulated sources  or sources




located out of their jurisdiction and therefore cannot be held responsible for addressing the




disparate impact caused by such sources.




       Others argue that this view is unduly restrictive and will result in an environmental




justice program with greatly diminished effectiveness.  They believe that environmental statutes




give federal, state, and local regulators ample authority to go beyond the constraints of detailed




and prescriptive regulatory requirements, especially where those requirements are not sufficient




to address the imposition of disproportionate burdens of pollution on prohibited grounds.  They




also contend that regulators have an obligation to consider and find a way to address all sources




that threaten human health and the environment, and that it is both bad policy and illegal for




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them to invoke the technical details of the law to duck these responsibilities.




       All participants recognize that whatever the definition of appropriate mitigation,  it may




not be possible to obtain sufficient relief from a single facility. Many endorse the conclusions of




Workgroup II, calling for a "hybrid" approach that combines "narrow to moderate nexus"




mitigation on the basis of what is "reasonable" and "practical" to achieve. Under this approach,




mitigation would be targeted as narrowly as possible to address adverse effects, but more




attenuated remedies (e.g.. pollution prevention, medical monitoring, additional research into




cumulative risk) would be considered if it was very difficult to develop a narrower approach.




Some members of the Committee, however, thought that a narrow nexus approach should be the




preferred, if not exclusive, basis for addressing any adverse human health effects.




        Members further diverge on how to provide state and local regulatory agencies with an




opportunity to develop "justification" for a permit's terms and conditions, both in terms of




timing and content. Some believe that state and local governments must explore all feasible




mitigation before being given and opportunity to present a justification for a discriminatory




effect.  Others believe that state and local governments should have an opportunity to provide




justification before mitigation is required. Some believe that acceptable justification should




include economic damage to facility owners, while others would restrict it to the demonstrated




benefits to the public that would be provided by the facility.




        As for the development of "template" or "model plan" for state and local governments




 interested in developing environmental justice programs, Workgroup III was fortunate to have




 the active participation of the directors of three state environmental agencies: New Jersey, Texas,




 and Oregon. As the Workgroup studied the efforts made by the three states to develop proactive




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programs, it discovered that they approach the issues from two distinct directions, or




programmatic "tracks." In the first track, state and local governments would address the




imposition of a disproportionate burden of adverse environmental effects on communities




comprised of a protected class without regard to the constraints of the permitting process. In the




second track, state-and local environmental justice programs would address potential




discrimination against communities that results from individual permitting decisions.




       The first track is important because it takes a more proactive approach to community




concerns, potentially preventing the emergence of Title VI complaints. The model plan




developed by the Workgroup and accepted by the Committee assumes that state and local




governments would consider (developing programs along both tracks, giving them an opportunity




to address cumulative risks that may be difficult to remedy in single-facility permitting




proceedings. However, the Committee also recognizes that the first track may extend beyond the




dictates of Title VI and could pose significant resource concerns to states, local governments, and




industrial facilities.




Redefining the Committee's Mission




       While Committee members have shared many hours of enlightening and constructive




conversation regarding these and other issues, they recognize two realities that require a




fundamental revision of the Committee's overall goals. The first reality is that the issues




involved in developing an acceptable environmental justice policy at the turn of this century are




both complex and difficult. The second and related reality is that the diverse constituencies




represented by the Committee are unable to reach consensus on the most important of these
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issues at this juncture in EPA's efforts to develop a national program. The Committee does not




consider the absence of consensus on these crucial questions a failure.  Rather, it is the inevitable




outcome of a serious effort to grapple with troubling questions in a diverse and committed group.




       Rather than struggle in the face of these divergent views to develop innocuous, watered-




down recommendations for EPA's consideration, the Committee has decided to present a report




to the Agency that explores its members' divergent views regarding the implications of the full




range of policy options available to EPA, the states, and local governments. The Committee is




also recommending a detailed agenda for the next steps &PA should take in revising the Interim




Guidance, developing a model plan for state and local programs, and improving the scientific




and technical information necessary to consider Title VI complaints in a fair and comprehensive




manner. As the Committee prepared this report, members achieved consensus on several




threshold principles that should guide EPA's future efforts.





 Eight Consensus Principles




        1.      The Committee unanimously endorses the concept of environmental justice.




        2.      The Committee is united in the belief that discrimination on the basis of race,




               color, or national origin is illegal and unjust.




        3.     Members of the Committee are unanimous in the conviction that early, proactive




               intervention is necessary if one is to deter Title VI violations and complaints.




               Whether preventive steps are implemented under the auspices of state and local




               governments, in the context of voluntary initiatives by industry, or at the  initiative




               of community advocates, opportunities for potential protagonists to sit down and
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6.
 discuss their true needs before positions harden are invaluable. (Materials on the




 chemical industry's Responsible Care program are included with this report as




 Appendix I.)




 The Committee unanimously agrees that the affected community, as an actual or




 potential victim of the discrimination Title VI seeks to prohibit, should not be




 treated by EPA and other regulatory agencies as merely another stakeholder




 group. Therefore, for state and local environmental justice programs to be truly




 proactive, they must purposefully promote and ensure meaningful participation by




 these communities.




 The Committee believes that EPA must develop transparent and comprehensive




 standards and decision-making processes accessible to the community that it will




 use to evaluate Title VI complaints so that communities, industry members, and




 state and local officials will understand their prospects if a negotiated solution is




 impossible and EPA must decide the merits of a formal complaint. Although




 Committee members strongly disagree about the substance of those standards,




they agree that such standards are necessary, and recognize that uncertainty harms




everyone by wasting limited resources that could be  far better spent.




The Committee recognizes that community concerns about cumulative impacts




are at the heart of many Title VI disputes.  As described in the discussion of Track




 1, below, to address the communities' fundamental concerns effectively,




appropriate authorities and other responsible parties should recognize the




cumulative nature of such impacts and to attempt to take action to reduce and




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            ultimately, eliminate the impacts.




     7.     The Committee recognizes that cumulative exposure to pollution and synergistic




            effects are important concerns raised in the Title VI context. The Committee is




            convinced that a dearth of reliable scientific research, as well as monitoring and




            modeling data, frequently makes it difficult to address such concerns. The




            Committee urges EPA and the states to make concerted, well-supported efforts to




            research the nature and existence of cumulative exposures and synergistic effects




            and the risks they pose. The Agency has already begun this crucial work, and the




            Committee recommends that it significantly expand those efforts.




      8.     Finally, the Cpmmittee urges EPA to conduct meaningful consultations with all




            affected stakeholders, including community groups and local governments, as it




            revises the Interim Guidance and moves on to  consider other equally pressing




            applications of Title VI. The Committee has discovered during its deliberations




            that preconceptions about the positions various stakeholders will take are often




             erroneous and that it is always possible for people of good faith to gain a deeper




             understanding of the issues from each other. EPA's perception that stakeholders




             are in a state of irreconcilable difference, or that the Agency must respond




             immediately to reports of crisis in the field, should not deflect its attention from




             the very constructive efforts it has already made to encourage this ongoing




             dialogue.




Roadmap to This Report
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       Because environmental justice law and policy are at a relatively early stage of




development, the Committee's agenda for EPA's next steps is exceptionally important and is




presented as the first section of this report. The report then presents a model plan for state and




local environmental justice programs. The template adopts a two-track approach, with the first




track devoted to proactive, preventive programs with a broader agenda and the second track




focused on individual facility permitting decisions.




       With this two-track approach in mind, the next section of the report explores the




substantive issues that must be addressed in all aspects of federal,  state, and local environmental




justice environmental programs. At the risk of oversimplifying, those issues can be reduced to




eight discrete sets of questions:




1.     Defining and Evaluating Effects: Should disproportionate adverse effects be defined to




       include health effects only, or should that definition include cultural, religious, economic,




       social, or environmental harm?




2.     Identifying the Community of Concern: How should communities affected by a




       permitting or other decision be identified? Should modeling and monitoring be used to




       identify people exposed to the facility's emissions, or should regulators concentrate on




       those living within a given distance from the facility?




3.     Determining Disparity:  What degree of disproportionate adverse effect is covered by




       Title VI?  Must the effect be substantial, above generally accepted norms, significant,




       statistically in excess of the risk or rate in the general population, or subject to some other




       standard?




4.     The Role of Existing Standards: If permitting a facility will result in a disproportionate




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      adverse impact on a community of color but will otherwise comply with applicable




      regulatory requirements, is the decision illegal under Title VI?




5.     Agency Jurisdiction: Must federal, state, and local regulators go beyond the legal and




      geographic constraints imposed by agency jurisdiction in defining disproportionate




      adverse effects or in responding to Title VI complaints?  How should environmental




      justice programs address the local land use decisions that often play such a crucial role in




       creating — as well as resolving — Title VI disputes?




6.     New versus Renewal Permits: Should EPA and state and local governments apply




       different standards in processing Title VI complaints that deal with permit renewals or




       modifications, as opposed to applications for new permits? For the purposes of this




       report, the terms "renewal" or "modification"  include both the continuation of permits




       without major changes and requests that permits be revised to allow expansion of existing




       facilities. "New permits" apply to facilities that have not yet been built. See section




       entitled "New versus Renewal Permits" below.




 7.     Mitigation: What standards should apply in determining the acceptability of the




       mitigation being proposed? How closely must mitigation relate to the disparate impact




       that is discriminatory under Title VI?




 8.      Justification:  If mitigation is difficult or impossible, what standards should apply in




        determining the validity of justifications offered by respondents to a Title VI complaint?





 NEXT STEPS FOR EPA





        The Committee's recommendations to EPA fall into seven broad categories: (1) revision






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 and implementation of the Interim Guidance on the basis of broad public review and comment;




 (2) development of policy statements addressing other areas of concern, including enforcement




 policy, Brownfields redevelopment, and the control of non-regulated sources; (3) expanded




 research and data-gathering regarding cumulative risks and synergistic effects; (4) development




 and dissemination of better tools for conducting Title VI assessments; (5) analysis of precedents




 set in other areas of civil rights law; (6) implementation of pilot projects and distribution of their




 results; and (7) concerted efforts to integrate Title VI issues and constituencies into other major




 Agency initiatives.




 Revision and Implementation of the Interim Guidance





       Step One: Stakeholder Consultations, Especially at the Grassroots




       The Committee recommends that EPA continue to consult with its constituencies and




 other experts as it rewrites the Interim Guidance and develops other Title VI policy statements.




 The Committee expects that the guidance will be published for public comment before it is




 issued in final form. However, publication in the Federal Register does not constitute effective




 notice for community groups, environmental justice advocates, and some local governments, and




 the Committee urges EPA to  launch more effective outreach efforts to obtain the comments of




 these crucial stakeholder groups.




       Specifically, the Committee recognizes that grassroots environmental justice groups are




necessarily focused on the issues they have raised about potential disparate impacts in their own




communities. Composed of people who must earn their living in other ways, grassroots




advocacy groups must use human - as well as their financial - resources very carefully. If EPA







                                          16

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wishes to understand their perspectives on environmental justice, in all of its varied meanings




and implications, it must accommodate these constraints, both by assisting volunteer advocates




to attend- meetings where the issues are discussed, and making those sessions more accessible to




the communities directly affected by policies that will result from such exchanges.




       Thus, environmental justice advocates on the Committee recommend that EPA




immediately initiate communication with groups and individuals who have filed Title VI




complaints, regardless of the status of their cases, in an effort to explain how it plans to




accomplish revision of the Interim Guidance. These members of the Committee further




recommend that EPA staff make the effort to develop ongoing, consultative relationships with




the established environmental justice networks that have expressed an interest in these policies.




       EPA has already facilitated one meeting among grassroots environmental justice




 advocates to discuss revision of the Interim Guidance.  Environmental justice advocates urge the




 Agency to arrange further meetings of this nature, noting that a single meeting in one location




 during a period when people may have difficulty arranging time off their jobs or family




 obligations is insufficient to gamer the views of all the grassroots groups involved most intensely




 in these issues.




        Once it has completed these consultations, and revised the Interim Guidance, EPA should




 prepare materials that explain the process for filing a Title VI complaint to affected communities,




 translating such materials into the languages that are spoken in the communities of color where




 such problems have arisen.




        Step Two: Revision and Implementation
                                            17

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       After these consultations are completed, the Committee recommends that EPA issue




revised guidance as expeditiously as possible, especially given the backlog of Title VI




complaints now pending in the Agency's Office of Civil Rights.




       Once the Interim Guidance is made final, the Committee recommends that EPA and the




states, in consultation with affected local governments, consider using National Environmental




Performance Partnership agreements to set forth their expectations regarding state programs.




(These agreements are now the vehicle of choice for establishing the criteria EPA will use in




evaluating state implementation of delegated programs.)' The Committee recommends that EPA




monitor the implementation of such programs both to learn from these experiences and to




evaluate their effectiveness.




       In addition to continuing its consultations with community groups, environmental justice




advocates, and state and local governments regarding Title VI  issues, the Committee




recommends that EPA educate industry groups about the requirements imposed under its revised




guidance. It is the Committee's sense that although the chemical and waste management




industries are aware of the issues, other business sectors may not understand how such




considerations can affect their  business. The Committee particularly encourages proactive




efforts to educate the smaller business community.




Beyond Permitting: Consideration of Other Areas of Concern




       While it is understandable that recent, high-profile permit disputes provoked EPA and




state and local governments to focus on this aspect of their mission, environmental justice




advocates on the Committee have repeatedly noted that permitting issues are only one
                                          18

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manifestation of the problem, and may have little — if any - relevance for many communities.




The Committee's work suggests three other areas that warrant extensive consideration by the




Agency.-




       The first is enforcement policy and practice with respect to regulated entities located in




communities comprised of a protected class. There is a widespread perception among




community groups that federal, state, and local regulators are less vigorous in enforcing the law




with respect to such facilities, and the merits of this concern deserve sustained attention.




Although the Committee neither adopts nor rejects this perception, it believes that EPA and its




state and local partners, in addition to developing objective data on past enforcement actions,




should evaluate enforcement policies to determine whether they have the effect of de-




emphasizing enforcement in communities containing a protected class.




       The second area is the effect Title VI programs may have on the redevelopment of




Brownfields (abandoned and contaminated land) in the inner city. State and local representatives




have urged the Committee to think twice before endorsing the identification of communities of




 color on a geographic basis  because they are convinced that such a system will create a stigma




 that forecloses economic development. They add that this outcome would be especially




 unfortunate because programs designed to encourage the voluntary cleanup of contaminated land




 in the inner city offer productive opportunities for business to address environmental justice




 issues in partnership with communities.




        Members of the Committee who represent community interests are skeptical about the




 value of economic development that exacerbates adverse health effects in neighborhoods already




 bearing a disproportionate burden.  While they often support Brownfields  initiatives, and believe




                                            19

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 that such programs frequently avoid environmental justice disputes because they require early




 consultation with affected communities, they are not willing to relinquish-sereening or mapping




 on the basis that it may chill any form of economic development, including development that




 exacerbates discriminatory effects. All of these perspectives deserve more discussion than the




 Committee was able to afford them.




       Finally, the-difficult but important issue of pollution caused by unregulated sources




 deserves concerted attention from EPA, the states, and local governments. Industry and




 community representatives agree that unregulated sources are a major source of disproportionate




 harm in communities of color.  Industry representatives contend that it is unfair to expect large




 facilities to shoulder the burden of reducing overall emissions. Community representatives assert




 that to implement effective programs, regulators must address pollution sources outside the limits




 of their regulatory programs. Both groups agree that limited resources must be committed to the




 most severe risks, but disagree on how to accomplish that important goal.




 Research and Data Gathering on Cumulative Risk and Synergistic Effects




       The Committee is unanimous in its belief that EPA should strengthen its research




 regarding the implications of cumulative risks and synergistic effects.  Some industry




 representatives believe that the science "isn't there yet" to document the actual existence of such




 adverse effects. One state representative further contends that states should implement programs




that endeavor to address cumulative risks only where peer-reviewed, scientifically valid




methodology is available.




       Other members of the Committee disagree with these assessments, contending that
                                           20

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compelling information either exists or should oe developed through enhanced monitoring and




modeling requirements. They argue that information regarding such risks will never be perfect,




and that developing regulatory policy in the face of scientific uncertainty has always been an




integral part of EPA's mission.




       The Environmental Justice Protocol proposed by the Public Interest Law Center and




included in this report as Appendix H would cope with gaps in data regarding cumulative risks




and synergistic effects by assuming that environmental exposure has caused elevated public




health statistics in such categories as age-adjusted mortality rates, infant mortality rates, and low




birth weight rates.  The Committee did not reach consensus on the merits of this approach, but




members agree that it emphasizes the need to improve the information available to document and




assess adverse impact.                                       .    •




       EPA has launched research projects exploring the cumulative risks  and synergistic effects




presented by air toxics, and is also doing important work in assessing cumulative risk through its




program to assist the states in establishing total maximum daily loads under the Clean Water Act,




33 U.S.C. §§1313-1315.  The Committee urges EPA to increase the resources devoted to such




research and to ensure that these findings are accessible to constituencies concerned about Title




VI implementation.




       The Committee also urges EPA to investigate innovative state and  local initiatives to




 understand cumulative risks and synergistic effects.  For example, the South Coast Air Quality




 Management District has launched an innovative new program known as the Multiple Air Toxics




 Exposure Study, or MATES. That and similar projects are pioneering the  development of




 methodologies for assessing cumulative exposure and synergistic effects.  They rely on




                                           21

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monitoring that collects data on gaseous and participate emissions from stationary and mobile




sources simultaneously, providing a quantifiable assessment of localized risks. EPA assistance is




crucial to make such programs available nationwide.




Development and Distribution of Assessment Tools




       The Committee recommends that EPA continue its efforts to develop the assessment




tools necessary to implement effective Title VI programs. For example, EPA is developing




programs such as the Land View series that list and identify many types of potential emission




sources that are proximate to a community. EPA and the states are also making efforts to




computerize and make available to the public information regarding the status of facility permits,




as well as critical data about the condition of the environment, enforcement activities, and




regulatory requirements.




       EPA and the states are pioneering the development of methodologies that help industry




identify and implement pollution prevention opportunities. They are also investigating mobile




sensor technology that allows measurements of ambient air quality in communities, a category of




information that is often requested by community groups. The Committee hopes that EPA will




consider developing a checklist or inventory of the sources of pollution that are most prevalent in




urban communities of color. All of these tools are vital building blocks in the implementation of




effective programs, and the Committee recommends that EPA devote significant resources to




making them readily available to state and local governments, industry, and the public.




       Environmental justice advocates further urge EPA, the states, and local governments not




to become enmeshed in the development of complex methodology that would prove a direct link
                                          22

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between specific pollution and manifest adverse health effects. They argue that assessing




disparate impact should be a much more straightforward, less costly process of evaluating the




number and type of facilities causing pollution in a neighborhood and comparing that burden to




the comparable burden bom by other communities. They see the demand by industry




representatives for techniques that will link pollution and illness as a false test that will make it




very difficult to carry out the law's prohibition on discrimination as a practical matter.




Legal Research and Analysis




       Another subject warranting EPA's immediate attention is the analysis of the legal




precedents developed in other areas of civil rights law that may prove useful in interpreting the




application of Title VI to environmental decision making. At the Committee's request, EPA's




Office of General Counsel (OGC) prepared a summary of precedents set under other civil rights




laws on such crucial topics as the degree of disparity that must be present to find discrimination,




the nature of the justifications that would serve to overcome such a finding, and the mitigation




required to address violations that are not justified. The summary is attached to this report as




Appendix J.  The Committee's review of this lengthy report suggests that EPA would be well-




advised to convene a group of civil rights experts from the public and private sector to further




develop this  analysis. By identifying available precedents and translating their application to the




environmental arena, EPA and its constituencies will be able to take the crucial step of




identifying whether there are aspects of environmental decision making that require the




development of new law and policy.




 The Utility of Pilot Projects
                                            23

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       The Committee recommends that EPA and state and local governments work together to

                                                                                        i
develop pilot projects that address different aspects of environmental justice issues, documenting
                                  ~                                                     I
                                                                                        I

the results of these initiatives carefully and making their findings available nationwide.  The pilot


project methodology is particularly well-suited to deal with the issues raised by disparate


environmental impacts because both the science and the policy that affect such situations are at a


relatively early stage of development.


The Best Context for Title VI Programs



       The Committee recommends that EPA and its state and local partners make explicit the.


relationship between effective Title VI programs and other initiatives that address the
                                                                                        1

fundamental sources of such concerns. For example, programs that address pollution on a


watershed or airshed basis have the potential to define and ameliorate the cumulative effects of


emissions on communities more effectively than individual permit decisions, although they may


present similar technical and scientific challenges. Similarly, EPA, state, and local efforts to
                                                          , -                             I
                                                                                        I
develop cross-media permitting programs may provide better opportunities for mitigating the
                                                                                        I

adverse effects of emissions on communities. Finally, EPA, state, and local efforts to develop


and make accessible to the public data regarding environmental indicators could prove helpful in


bolstering the transparency of the public participation process recommended by the Committee in


the "A Template for State and Local Government Programs" section of this report.  EPA, state,


and local policy statements regarding Title VI, cross-media regulation, watershed and airshed


protection, and efforts to  improve environmental information should describe these


interrelationships and encourage coordination between these activities.
                                           24

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A TEMPLATE FOR STATE AND
LOCAL GOVERNMENT PROGRAMS

Guidance, Not a Mandate, for the States and Local Governments

       Webster's Third International Dictionary defines a template as a pattern or guide used to
produce a desired profile. The template described in this report is intended to serve as a model
plan for states and local governments that elect to establish environmental justice programs.  The
Committee emphasizes, however, that it does not view this model plan as the basis for a
mandatory requirement that state and local governments adopt such programs. While many
members of the Committee, including state and local government representatives, believe that
establishing proactive environmental justice programs is a desirable, even necessary, public
policy, the group did not agree to recommend a new mandate for state and local governments.
       The Committee recommends that EPA and its stakeholders encourage state and local
governments to implement environmental justice programs.  It further recommends that EPA
explore ways to motivate industry, communities, public interest groups, and other branches of
government to participate actively in such initiatives. State and local government programs are
clearly the foundation for making significant progress on these issues, and should be a top
priority for EPA.
Two Paths  to Equity
       The model plan endorsed by the Committee proposes that state and local governments
develop environmental justice programs along two distinct tracks. The first would explore and
attempt to remedy the imposition of disproportionate burdens on communities that comprise a

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protected class outside the constraints of the single-facility permitting process. The second would


address potential discrimination that may result from individual permitting decisions.  The major


advantage of the first track is its capacity to identify and ameliorate cumulative-effects that are


difficult to address in permitting proceedings.


       The Committee is aware that the first track goes beyond the dictates of Title VI and may


require a significant commitment of resources by state and local governments and regulated


industry.  We also recognize the importance of creating incentives for state and local

                                                  .;                                     •
governments, industry, business, and community groups to participate in broadly defined,
                                                                                       I

preventive programs. The Committee discussed effective incentives at some length and its


conclusions are presented in the section entitled "Incentives," below.

                                                                                      •|
Deference to State and Local Government Permitting Decisions


       Several of the incentives identified by the Committee raise important policy issues, but

                                            •
none is more significant than the possibility of EPA deferring to state and local governments in
                                                                                       i

order to encourage their implementation of proactive programs.  State and industry

                                                                                       I
representatives on the Committee have explained that EPA deference is the single most effective


incentive that EPA could offer to inspire the implementation of proactive programs. Indeed,


some members contend that deference by EPA is a condition precedent for states to even


consider establishing such.ambitious programs. They characterize Track 1 programs as asking


the states and local governments to go "beyond compliance" with Title VI, comparing that


request to other EPA reinvention initiatives aimed at industry, such as Project XL.

                                                                                       I
       These members of the Committee urge EPA to recognize that state regulators face the
                                           26

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daily dilemma of deploying limited resources to address demanding federal statutory mandates.




They argue that in this atmosphere, unless states derive clear benefits from implementing




proactive environmental justice programs, such initiatives will never become a priority.  They




add that states will be unable to persuade industry to participate voluntarily unless their final




decisions are accorded deference, eliminating the extensive delays that now affect the processing




of Title VI complaints by EPA and limiting EPA's authority to undertake a de novo "second




guessing" of state decisions made in good faith.  In short, they believe it is unrealistic to expect




Track 1 to succeed without a generous measure of deference.




       In contrast to these views, environmental justice advocates are very reluctant to endorse




deference as an incentive. They argue that the appropriate incentive for state and local




governments to implement the model plan is the prospect, that they will "win complaints"




because proactive programs produce better decisions that will withstand scrutiny in the context




 of a Title VI case. They question why it would ever be appropriate to create special incentives




 for state and local governments to comply with the law.




        These members of the Committee are especially sensitive to the risks of deference




 because they do not know what substantive standards EPA will apply in deciding to give state




 and local programs such leeway, and cannot endorse the concept of deference in a substantive




 vacuum. Even if EPA ultimately develops substantive standards that are acceptable, they




 question whether EPA will apply rigorous oversight to the actual implementation of state and




 local programs.




         Some members of the Committee, all of whom are lawyers representing a range of




 stakeholders involved in Title VI disputes, question whether EPA is authorized to defer to state




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and local programs in deciding the merits of a formal complaint. They argue that Title VI was

enacted to protect constitutional rights, protecting the people of color from "majoritarian

impulses." They believe that the statute imposes a clear mandate that EPA evaluate complaints

de novo — that is, without according any special weight to the state or local agency's views on

the merits. In this view, the most EPA should do when confronted with a complaint regarding a
                                                                                       i
permitting decision made in the context of a program based on the model plan is to acknowledge
                                                                                       i
the state or local government's efforts, while still reviewing the merits of the complaint with the

same level of attention as the Agency would apply to any other complaint.

       Other Committee members, who are also lawyers involved in Title VI matters, believe

EPA has significant authority.to defer to state and local programs.  They point out that Title VI

nowhere tells EPA how to evaluate complaints.  Thus, they argue that de novo review is neither

expressly required nor impliedly favored by the  statute.
                                                                                       I
       Several members of the Committee agreed that it is important to distinguish between

aspects of a state or local program that are "procedural" (e.g.. affording ample opportunities for

public participation), as opposed to those that are "substantive" (e.g.. measuring disparate impact
                                                                                       i
pursuant to a protocol recommended by EPA).  They add that if EPA adopts deference as an

incentive, it should parse the appropriate scope of such deference carefully.  For example, if a

complaint alleges a disparate impact, and the state or local government did not follow federal

guidance on the assessment of such impacts, it should receive no deference, even if it faithfully

followed the public participation aspects of the model plan. They are also concerned that EPA

look behind the simple fact that a state or local government has an environmental justice program

in evaluating the merits of a complaint. For example, a state may adopt elaborate public

                                          28

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participation procedures but fail to apply them in any given case. In such circumstances,^? A




decision makers should not assume that these portions of the state's plan are entitled to any




deference, credit, or even less stringent review.




State and Local Government Flexibility




       Although the Committee developed consensus regarding the desirability of a two-track




structure for environmental justice programs, members diverge on the question of how much




flexibility states and local governments should be given to translate the principles contained in




the template into an operational protocol. One state representative describes the model plan as a




"menu" of options for the states, and believes that EPA must avoid "micromanaging" state




environmental justice programs.  A second state representative contends that a "one-size-fits-aH"




approach will inhibit the development of Title VI programs.




        In contrast, environmental justice advocates urge that EPA include as much prescriptive




 detail as possible when it drafts final guidance on this subject. They agree with the observations




 of other state and local government representatives, who urge  the federal government to take a




 strong leadership role in defining the elements of an effective  program, including minimum




 prescriptive standards for making decisions with Title VI implications, in order to ensure a "level




 playing field" nationwide.




        Industry representatives generally favor greater flexibility for the states.  Although they




 agree that stronger federal leadership could help achieve greater predictability, so that




 consideration of environmental justice concerns could proceed at the same time as permits are




 processed, they also emphasize that much of the wisdom and  experience on these issues resides
                                             29

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with state and local governments.




       The Committee recognizes EPA's continuing commitment to serve as an arbiter of Title




VI claims. As EPA refines the model plan, the Committee recommends that it achieve a balance




between the need to establish a clear floor for state and local programs while still giving the




states and local governments the flexibility to adapt these principles to their own local




circumstances.




       The Committee has developed seven principles to serve as a template for incorporating




environmental justice into state and local permitting decisions. These principles are listed and




discussed below in the approximate order that they arise in the permitting process.




Proactive Problem Solving





Identify environmental justice issues proactively, with a community-based focus.




       Perhaps the single most important characteristic of the model plan proposed by this report




is its emphasis on early and proactive efforts to identify and address environmental justice issues.




This principle applies to both tracks of the model plan: efforts in Track 1 to address the




cumulative effects of pollution on communities that comprise a protected class and the




processing in Track 2 of single-facility permits that raise environmental justice concerns.




       Under the first track, state and local governments, in consultation with environmental




justice advocates, affected communities, and regulated industry, would identify areas that may




bear a disproportionate burden of adverse environmental effects. They would work to




characterize the nature and sources of those effects as accurately and comprehensively as




possible.  (See discussion of an inventory of pollution sources, below.) Once adverse effects are
                                           30

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thoroughly-understood, Track 1 programs would develop effective mitigation to reduce them.




Mitigation might involve reductions of pollution at permitted facilities, or it might involve efforts




to reduce, exposure to pollution -- or other adverse impacts - by addressing the operations of




unpermitted activities.




       For example, lead is a contaminant common in major cities that has a devastating impact




on young children.  There are many sources of lead emissions, some of which are regulated (the




ban on lead in gasoline and Clean Air Act permit restrictions on major industrial facilities) and




some of which are not (lead paint in older rental housing). Under Track 1, a state or local




government could develop programs to remediate lead paint that would reduce the overall burden




borne by a given community,, and would also alleviate the pressure to secure extraordinary




 reductions from permitted facilities.




        The Committee believes that, over time, as Track 1  efforts to address disproportionate




 adverse effects on protected communities become more sophisticated, creative, and extensive,




 the level of controversy provoked by individual permitting decisions may tend to recede. Thus,




 Track 1 programs are a crucial alternative to mitigation in the context of individual permitting




 decisions, and hopefully will be implemented thoughtfully, and then embraced by all




 stakeholders.



         With regard to Track 2, the Committee strongly recommends that EPA, state and local




  governments, and industry embrace the principle that community outreach and dialogue should




  begin as soon as possible in the permitting or pre-permilting process (e^, a transaction that




  involves trading of pollution "credits" or a decision by the permittee to renew, modify, or acquire




  a new permit). The Committee further recommends that at these initial stages, land use decision




                                             31

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 makers and environmental agency officials conduct community outreach to identify parties




 potentially interested in the decision. Informal discussions with the community, as well as the




 state and'tocal officials who may play a role in the decision, should begin as soon as possible




 once these parties are identified.  In this regard, industry representatives urge EPA and their state




 and local partners to recognize voluntary industry initiatives as a supplement to these efforts,




 giving appropriate recognition to those who implement such projects.




       The Committee believes that, in general, few constraints should be placed on those initial




 discussions. It is especially important to encourage residents who would be directly affected by




 the permitting decision to raise the full range of their concerns about the potential impact of new




 or existing facilities on their environment, defined in the broadest sense. Thus, if communities




 are concerned that truck traffic will cause an increase in vehicle accidents, or believe that the




 siting or expansion of a facility will change property values, they should be encouraged to put




 those concerns on the table during these preliminary discussions so that the facility's sponsor can




 consider them.




       On the other hand, the Committee also recognizes that in some cases, state and local




 officials and facility sponsors may believe that some or all of the community's concerns are




 beyond the scope of the environmental permitting process.  In these situations, state and local




 officials and facility sponsors may seek to draw clear and explicit distinctions between such




 open-ended problem-solving and the issues that will be considered if the parties are unable to




 reach a voluntary agreement. As discussed below in the section entitled "Mitigation" below,




many members of the Committee believe that benefits unrelated to disproportionate adverse




effects are not sufficient mitigation for discrimination under Title VI. Nevertheless, the




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Committee agrees that reaching early agreements that effectively address the community's most




significant concerns is the best way to prevent the festering of such problems to the point that




they provoke a Title VI complaint.




       It cannot be overemphasized that when the Committee recommends early intervention, it




means just that.  Ideally, a dialogue would begin even before decisions are made to allow




construction or expansion of facilities and would be underway before the permit process




officially begins. Education of land use decision makers about the environmental implications of




their actions is a crucial component of early intervention.




       In addition to giving the parties  the forum and the flexibility to find solutions to




 community concerns, early intervention reduces the possibility that delays will cost industry




 time, money, and even a competitive advantage in the siting or expansion of new and existing




 facilities. Finally, early intervention keeps the focus on .the community's true concerns, rather




 than compelling the community to fight a permit on the basis of issues that are less important,




 but which may be of great significance to facility sponsors.  This  is why the Committee strongly




 recommends a concurrent, more relational, first-track approach.




        A final issue considered by the  Committee is the extent to which environmental justice




 programs should conduct outreach in communities that have not otherwise indicated concern




 about environmental risks.  Should program staff try to educate community residents about




 environmental problems, or should they simply develop accessible notification procedures and




 terminate official consideration of environmental justice concerns if no one—or only a small




 number of residents—come forward?




         The Committee agrees that it is not the role of a state and local environmental justice




                                             33

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 program to organize opposition to permitting decisions. However, the Committee also believes

 that the first track of environmental programs should proceed even if communities are not

 demanding change.  As science and technology become more sophisticated and we are able to

 identify and measure cumulative effects, amelioration of disproportionate burdens will become

 an integral part of the overall mission of federal, state, and local environmental agencies, with or

 without public complaints.

 Incentives

 Identify and create incentives for state and local governments to establish environmental
justice programs and for the full range of stakeholders to participate in such programs.

       The Committee agrees that finding suitable incentives for state and local governments,

 affected communities, and regulated industry to participate in environmental justice programs

 will prove crucial to their long-term success. Incentives are particularly important as a

 motivation for the implementation of Track 1, proactive programs at the state and local levels.

 The Committee strongly recommends that EPA emphasize the development of such incentives as

 one of its top priorities. Possible incentives are discussed below in the context of the stakeholder

 groups they are designed to motivate: (1) state and local governments; (2) regulated industry; and

 (3) community groups. To be successful, EPA must develop equally strong incentives in all

three categories. The following discussion explains the Committee's views on the incentives that

could be offered to each group. The Committee has also included, as Appendix K to this report,

a paper dated September 28-29,1999, and entitled "Draft Preliminary Report on Incentives"

prepared for the NACEPT Committee on Reinvention, which contains further insight into this

important issue.


                                           34

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       State and Local Governments




       The Committee has identified three possible incentives for state and local governments to




implement the model plan recommended by this report: (1) EPA deference to state and local




permitting decisions; (2) expedited processing of Title VI complaints regarding decisions by




state and local governments that have implemented model plan principles; and (3) the likelihood




that decisions based on the standards contained in the model plan will prove more compelling on




their merits when they are reviewed by EPA.




       As discussed above in the section on "Deference to State and Local Permitting




Decisions," the Committee did not achieve consensus on the complex issue of whether and how




to accord deference to state and local permitting decisions made in the context of programs that




follow a model plan. State and industry representatives argue that deference is an indispensable




incentive for states to consider implementing the "beyond compliance" programs called for in




Track 1 of the model plan and for regulated industry to participate in such initiatives.




Environmental justice advocates are skeptical of deference, fearing that in the absence of strong




substantive standards and consistent EPA oversight and enforcement, it could lead to ratification




of bad state and local permitting decisions. Some of the lawyers on the Committee disagree




about how deference fits with the statutory mandates set forth in Title VI.




        Avoidance of the extensive delays that may accompany the filing of a Title VI complaint




is a second, potentially powerful incentive for state and local implementation of environmental




justice programs, particularly those modeled on the Track 1 proposals in this report.  State and




 local representatives argue that under the current system,  even if they implement an extensive
                                            35

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program of public outreach and dialogue, permitting decisions can still get "trumped" by.a Title




VI complaint filed by a handful of people who do not truly represent the community's views. If




EPA pledged to expedite its resolution of complaints regarding decisions made by state and local




governments with good programs, this deterrent to the investment of significant state and local




resources could be overcome.




       The Committee assumes that decisions made by state and local governments with




effective programs based on federal standards will include a well-developed record that considers




possible environmental justice concerns, including the nature and scope of potential




disproportionate adverse effects.  Such decisions should be more compelling upon EPA review,




both because they should not require the Agency to conduct significant additional investigation




of the merits of a Title VI complaint and because they should set forth a better-reasoned analysis




of those issues.




       One  academic member of the Committee suggests that one possible way to  describe this




approach is that the existence of a well-run environmental justice program will be considered as




evidence when EPA adjudicates a Title Vi complaint. For example, if the program is inclusive,




and provides meaningful opportunities for input, then that fact would be considered evidence that




the complainant was  not shut out of the process. She compares this approach to existing "burden




shifting" regimes developed under other civil rights laws.




       Although its review of permitting decisions is likely to be easier with respect to state and




local governments that implement robust environmental justice programs, it has also become




clear that more resources are needed to process such complaints expeditiously.  EPA is coping




with a large backlog  of cases. Although the Committee did not reach consensus on a




                                           36

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recommendation to increase funding for the Office of Civil Rights, it suggests that the EPA




Administrator evaluate the benefits of various potential resource levels and then seek a specific




appropriation for this vital function.




       Industry




       The nature of incentives offered to inspire industry participation in state and local




environmental justice program may vary between Tracks 1 and 2, and between the sectors of




industry that are affected. Industry representatives believe that industry's participation in Track




1 must remain voluntary, and urge state and local governments to be creative in developing




incentives that encourage industry — especially unregulated industry — to participate in the




voluntary reductions that are a central goal of Track 1. They reason that using Track 1 programs




to achieve a proportionate share of reductions from a comprehensive list of large and small




pollution sources is likely to garner the support and active involvement of companies that operate




 large facilities, encouraging them to go "beyond compliance"  in shouldering responsibility for




 their "fair share" of necessary mitigation.




        Thus, industry incentives fall into three distinct categories: (1) expedited decision making




 that has the potential to inspire participation by the full range  of regulated sources; (2) more




 equitable distribution of pollution prevention and reduction that has the potential to motivate the




 involvement of larger regulated sources; and (3) incentives ~  as yet unidentified -- that would




 garner the support of generally smaller, nonregulated sources, especially in the context of Track




 2 initiatives-




         Industry representatives on the Committee consistently emphasized their need for
                                              37

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  certainty and clear, timely decision making.  They argue that if regulated industry members are




  convinced that the process is likely to reduce delays and last-minute "surprises," and will




  improve industry relations with adjacent communities, their participation in both tracks is likely




"•to prove both more extensive and fruitful.  They add that uncertainty undermines their ability to




  make timely business decisions and imposes both direct and "lost opportunity" costs on




  companies. Since industry representatives have explained that Title VI complaints often function




  as a stay on a permitting decision, relief from such delays is broadly viewed as a highly desirable




  attribute of state and local programs. In sum, expedited processing of permits by state and local




  governments and expedited consideration of Title VI complaints by EPA are as powerful an




  incentive for regulated industry to participate in environmental justice programs voluntarily as




  they are for state and local governments.




         As for the possibility that Track 1 programs will rationalize the burden of pollution




  prevention and reduction between regulated and unregulated ~ and large and small — sources,




  one industry member characterizes this incentive as an opportunity to escape the typical scenario




  in which state agencies "line up the usual suspects and shoot us."




         However, for this incentive to work, federal, state, and local regulators must develop




  meaningful incentives to inspire the participation of unregulated sources, a far more challenging




  proposition.  As discussed in the section entitled "A Comprehensive Inventory of Pollution




  Sources" below, inclusion of unregulated pollution in any analysis of disproportionate adverse




  effects is central, consensus recommendation of this report.  Wide dissemination of this




  information can be a powerful tool in encouraging pollution reduction. Another possible result




  of such inventories may be state and local decisions to extend regulations to those sources. In




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the absence of legal compulsion, however, other incentives must be developed, as well to,




encourage voluntary reductions by this group, many of which are small businesses.




       The Committee did not have a full opportunity to address this difficult question.  We urge




EPA to pursue it in subsequent dialogues with environmental justice stakeholders, and to include




in those discussions further consideration of regulatory and legislative proposals that would




"carve out" pollution sources from the controls that apply to other entities in the public and




private sectors.




       Federal, state, and local regulators should also consider recognizing industry efforts to




address community concerns by including such "supplemental projects" as a term of the permit




that may, when appropriate, lessen the burden imposed by other permit conditions.




       Finally, it may prove worthwhile to study emerging Brownfields reclamation programs




 and the proceedings of the EPA NACEPT on Reinvention for examples of incentives that




 encourage industry participation in an affirmative manner. A copy of a draft preliminary report




 prepared by the NACEPT Committee is attached as Appendix K.




        Community Groups




        Members of the Committee identified three possible incentives to motivate community




 participation in environmental justice programs: (1) an accessible process that produces




 meaningful ~ and not just token - involvement; (2) technical support and assistance that allows




 community groups to participate on a "level playing field" with industry and government; and




 (3) quantifiable pollution prevention and reductions.




        The conditions for meaningful public involvement are addressed in greater detail in the
                                            39

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section of this report entitled "Public Participation" below. In addition to such important




procedural protections as meetings in accessible places during convenient times and the




translation of documents if necessary, environmental justice advocates on the Committee




emphasize the importance of assisting the community to develop technical capacity, advocating




that EPA and industry provide financial support for such initiatives. They add that technical




assistance is vital at two distinct stages of the process: (1) during the initial consideration of




permit provisions, in order to evaluate their potential impacts on the affected community and (2)




following approval of the permit, in order to  enable the affected community to monitor




compliance independently.




       Without the advice of independent technical consultants who do not have a vested interest




in approval of the permit, these members argue, the community is easily overwhelmed by the




large number of lawyers and technical experts typically retained by permit proponents. The




debate over permit conditions occurs at a level that is not easily comprehended by people from




the community, exacerbating their alienation and suspicion of government and industry and




crippling any effort it makes to'influence the outcome of the proceeding.




       One member of the Committee underscored the value of small grants that enable




community organizations to develop data gathering and analysis capability.  Her organization




recently received a grant in the range of $40-60,000 to purchase the computer software necessary




to compile its own Geographic Information System (GIS) and to hire and train a staff person to




run the system.  Faculty at the Columbia School of Public  Health will conduct this training,




which will enable to community to participate more actively and effectively in the daily decision




making that has direct effects on its health.




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       This member of the Committee also stressed the importance of small grants to support




travel to public meetings and other incidental expenses. She stated that communities without




large organizations cannot support these costs, which become an insurmountable barrier to their




participation in the process.




       Industry and state representatives oppose the creation of an ambitious, new, resource-




intensive program to provide technical support beyond the information already provided by




federal and state regulators. They argue that such information might be used to fuel  costly tort




and other litigation, rather than education and problem solving. Moreover, they believe it is the




role of the regulator to provide sound, reliable information to citizens about the permitting




process.




       Given the inadequate federal funding for processing actual Title VI complaints at the




Track 2 stage, industry representatives are also concerned about providing federal funding at the




Track 1 stage, where the nature and extent of the problem remains to be determined  in any




particular community. At a minimum, one industry representative suggests, any federal grants




should be part of a specific EPA appropriations request and should be subject to strict fiscal




controls such as regular audits and rules designed to prevent conflicts of interest.




        A state representative further argues that providing technical assistance would confuse the




issue of who actually represents the community because it would introduce "citizen  groups,




lawyers, and consultants" into the situation.  In his view, only elected officials provide reliable




representation of a community.




        The Committee did not have  an opportunity to discuss either the qualitative or




 quantitative aspects  of the technical assistance that could be provided to community groups and




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must leave the issue to other dialogue groups.

       The second incentive advocated by environmental justice advocates is the possibility that

pollution will be prevented and reduced if the community participates actively in either or both

tracks of a state or local environmental justice program. (Prevention and reduction are not

necessarily synonymous because reductions affect the overall burden of adverse impacts

shouldered by the community, while the concept of pollution prevention also includes the

elimination of new emissions  from facilities that are not yet built.)

       Environmental justice advocates stress that directly measurable benefits to public health

produced by pollution abatement are the overriding litmus test they apply to state or local

environmental justice programs. They strongly recommend that EPA incorporate this factor as a

central theme  of its guidance to state and local governments. They are  willing to remain flexible

on how pollution reduction and prevention are achieved and support creative approaches to

mitigation, especially in the context of Track 1 programs. For example, they are willing to

support the approach suggested by the lead paint example set forth in the discussion of industry

incentives immediately above. However, they believe that programs with the exclusive goal of
                                                                                        i
processing permit applications efficiently within the black letter of the  law will not win the

support of communities focused on tangible health effects.

Addressing Cumulative Effects

Define relevant pollution sources to be addressed by state and local environmental justice
programs accurately and inclusively, taking into consideration cumulative health and
environmental effects.

       Disagreements over the existence and the evaluation of cumulative effects are at the heart
                                            42

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of many environmental justice disputes. The Committee's views in this crucial area involve two




distinct stages of the problem: (1) how to assess cumulative effects in a comprehensive and




accurate-manner and (2) how to evaluate the significance of cumulative effects for the




environmental decision at issue. Members of the Committee achieved significant consensus




around the goal that cumulative effects should be evaluated when possible, but did not agree on




the nature, scope, or solution to the technical issues that arise in such evaluations.




       A Comprehensive Inventory of Pollution Sources




       The Committee believes that, within the constraints of their limited resources, federal,




state, and local agencies that choose to implement Track 1 programs should endeavor to assess




the cumulative effects on human health and the environment of all pollution sources, without




respect to the constraints of the permitting process or applicable law. Permitted and unpermitted,




private and public, stationary and mobile sources should be included in all inventories of releases




and other environmental conditions that may pose a risk to communities that comprise a




protected class. Inventories should be conducted without regard to the applicability of federal,




state, and local regulations and should include  all levels of government entities that produce




pollution or cause other significant risks.




       Environmental justice advocates and representatives of large industrial sources have




particularly strong views on the importance of including "exempt" sources of pollution. They




 are alarmed by what they see as a growing trend in legislation, EPA regulation and elsewhere




 toward exempting a variety of sources, especially small business sources, from the laws and




 regulations that apply to major industries.  Examples of this trend include nonpoint sources of
                                            43

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water pollution, which are either unregulated or subject to ineffective regulation in most states.




Recent proposals to exempt recyclers_from the Superfund program are another example of this




trend. Government agencies are also subject to special, and, in the view of these members,




unwarranted, favorable treatment. For example, one member of the Committee explained that




the New York City Board of Education recently won permission to construct schools on




Brownfields sites contaminated by chemicals that pose a direct threat to the children.




       The Committee believes that-exempting sources from the assessment of cumulative




effects can only result in inaccurate measurements of the real risks to public health, skews the




evaluation of disparate impact, and prevents the formulation of effective remedies for such




problems. Focusing exclusively on major sources is unfair to the companies that operate them,




could result in the imposition of a disproportionately heavy  burden of pollution reduction on




such facilities, and, most importantly, could leave adverse impacts unaddressed.




       In this regard, a local government representative notes that if a comprehensive analysis of




cumulative risk is undertaken that includes all sources, it could lead to situations where new




facilities would not be allowed to add to that cumulative burden unless mitigation was




accomplished, either by the new source or overall.




       Although the Committee agrees on the importance of taking a comprehensive inventory




of pollution sources in the context of Track 1 programs, taking into account the limits of




government resources, members did not achieve consensus on the role such inventories should




play in Track 2 of state and local environmental justice programs.




       Evaluating Potentially Adverse Impacts
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       Under Track 1 of the model plan proposed in this report, state and local governments




would (1) use general screening to identify communities with a significant pollution load and a




population comprised of a protected class; (2) determine whether such communities face a




disproportionate burden of adverse effects; and (3) if so, work with industry and community




organizations to find methods for decreasing such effects. State and local governments would




also consider developing compliance outreach and technical assistance to respond to such




situations, or special enforcement if appropriate.




       One state representative predicted that if state and local governments work to reduce




pollution loading in communities of color, "non-protected class communities with similar




pollution loads will demand the same treatment," potentially leading to "reverse discrimination




complaints and lawsuits."




       The Committee understands that state and local government programs must set priorities




among sources, leaving those that cause relatively minor adverse impacts out of their programs,




and tailoring the amount of scrutiny other sources receive on the basis of substantive criteria.




The development of priorities and a tiered public participation process would occur primarily in




the context of permit reviews conducted with respect to individual facilities. The Committee




recognizes that states and some local governments process hundreds, even thousands, of permits




each  year and that it would be impractical, unreasonable, and unnecessary to require a full




environmental justice process for each one.  The Committee also understands that many




permitted sources are small businesses, which may not have the resources to undertake extensive




public outreach.




        Workgroup III developed a list of potential criteria for establishing priorities among




                                            45

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permitted sources that included such factors as the nature and amount of emissions, the potential




adverse effects caused by such emissions, and the type of permit at issue, but the Committee did




not achieve consensus on this relatively detailed list.




       Further, the Committee did not reach consensus on two closely related and equally




important issues. First, how should environmental justice programs take into consideration the




cumulative risks and synergistic effects of neighboring sources when making permitting




decisions for a single facility? Second, should the process and procedures of environmental




justice analysis differ with respect to new and existing facilities under a permit-by-permit




approach?




       As  discussed in detail.in the next section of the report, members of the Committee




disagree on the adequacy of the scientific data that is available to assess cumulative and




synergistic effects. Some members argue that cumulative risks and synergistic effects are




essential factors to consider at the same time that EPA works to improve the technical basis for




such decisions.  Others believe that until the technical basis for such assessments is improved,




federal, state, and local regulators should not consider such adverse effects during the permitting




process. They are also concerned about efforts to address cumulative risk and synergistic effects




in Track 1  programs, given the current gaps in our understanding and analytical tools.




       One state representative observes that cumulative effects are already a factor in state




permitting decisions under the Clean Water Act because states conduct an assimilative analysis




of affected water bodies, and try to leave room for industrial growth. He acknowledges,




however, that the states' ability to develop remedies that address such effects vary depending on




the legal authority given to the environmental agency under existing state law.




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       Industry representatives on the Committee believe that the cumulative risk analysis




suggested by some in the context of Title VI complaints is quite different and more complex than




assimilative capacity analysis under the Clean Water Act.




       Members of the group further disagree on the issue of whether to regulate new facilities




differently than existing facilities. Some environmental justice advocates endorse an approach




sometimes described as "zero-based permitting" that would compel regulators to scrutinize




permit renewals (including upgrades and expansions) for existing facilities using the same




standards they apply to permit applications for new facilities. They argue that zero-based




permitting is fundamental to the elimination of discrimination because in certain circumstances,




it is be the only way to reduce disproportionate pollution loads.




       Committee members representing industry, as well as state and local governments,




strongly objected to this approach, contending that it is unfair, impractical, and illegal, and that it




would cause severe economic dislocation harmful to facility owners and community residents.




       In their dialogue on this difficult issue, members of Workgroup III considered ~ but did




 not reach resolution on -- a compromise approach that would include renewals and modifications




 to existing permits in a Title VI analysis, but would not require the same degree of mitigation




 from such facilities if significant economic hardship would result.  Members of the Workgroup




 discussed two alternative ways of dealing with such difficult situations: using offsets or pollution




 trading programs or adopting a pollution "budgef'approach that would be modeled on the waste




 load allocations performed under the Clean Water Act.




 Expansion of Existing Programs
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Expand existing decision making processes to incorporate environmental justice issues, rather
than creating a new and separate process, while ensuring that decision makers address such
issues in a timely, efficient, and predictable manner.


       The Committee strongly recommends that the second track of state and local


environmental justice programs — evaluation of potential environmental justice concerns raised


by individual permit applications ~ occur within the existing process for making such decisions.


To the maximum extent practical, the technical review of permit applications should occur


concurrently with the consideration of environmental justice, issues, rather than leaving such


issues to the tail end of the process, where they can trump technical review, wasting time and

                                                            '
resources.  Further, leaving the evaluation of environmental justice issues to the end of the permit


process makes it more difficult for the permitting agency and the permittee to work with the


community to develop creative approaches to mitigation.
                                                                                         i

       The Committee recognizes that there are different definitions of state and local agency
                                                                                         j

authority with respect to the terms and conditions of environmental permits, with some statutes


granting state and local agencies the authority to change the standards that apply to a given

   ...
facility in order to address cumulative effects.  In general, the Committee urges state and local


agencies to define the nature and scope of their authority clearly, both for internal purposes and


for interested parties participating  in a mediation process. However, the Committee did not


address the complicated  and controversial issues of whether and in which contexts state and local


agencies should seek new legal authority in order to implement their environmental justice


programs.  Some members of the Committee felt that adequate legal authority was essential to an


effective program, while others expressed concern about politicizing the process in a legislative


context. EPA, the states, and local governments may wish to consider addressing this issue in


                                           48

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more detail.




Public Participation




Establish a transparent, accessible, honest, and accurate process for public participation,




       The Committee identified five elements that are essential to the creation of a transparent




process for public participation .in decisions involving environmental justice issues:




        1.     Accessible, understandable notification;




       2.     Effective education regarding the legal and technical aspects of facility operation




              permitting, and environmental exposures;




        3.     A process that allows community residents to participate in the debate effectively;




        4.     The development of adequate information to inform participants about the




              implications of the decision at issue; and




        5.     Clear statements by  state and local agencies explaining the reasons for the




              decisions made with respect to environmental justice issues.




        Included with this report as Appendices L and M are the public participation guidelines




 prepared by the National Environmental Justice Advisory Council, as well as ASTM E-50.03 --




 Standard Guide to the Process of Sustainable Brawnfields Redevelopment. These documents




 give helpful guidance to state and local governments in achieving these goals.




         Another source of effective approaches to public participation is the Department of




 Energy's procurement program, which asks businesses seeking contracts to enter into a




 constructive dialogue with the affected community. EPA's recently revised 1998 guidance on




 the public's opportunity to participate in the consideration of Supplemental Environmental
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Projects may also prove helpful, especially in the context of developing mitigation measures to




address disproportionate environmental impacts.




       A state member of the Committee points out that national and state environmental




statutes contain detailed public participation public participation procedures that apply to




permitting decisions.  He adds that these procedures should be supplemented as recommended in




this report to ensure that environmental justice concerns are addressed adequately. A local




government representative stresses that communities must be given assurance that their concerns




are being heard, respected, and considered.




       The Committee also makes the following additional recommendations to EPA as it




considers this  aspect of the template.




       Notification in newspapers, even those of general distribution, may not be sufficient to




place affected communities on notice of a permit or other decision making process that will-




address environmental justice concerns.  The Committee believes that such minimal notification




should be supplemented by more aggressive community outreach. For example, New Jersey has




considered placing notices in electric or telephone bills. New Jersey has also established a




community liaison staff who develop an ongoing relationship with protected communities, even




when no decisions are before them.




       Effective notification includes educating citizens about the timelines that affect the




process, the standards that will apply to the decisions made by the permitting agencies, and the




remedies available to members of the  community if they perceive the decision to be adverse.




Members of the public must receive notification in their native languages whenever possible.




       The Committee also emphasizes the widely-recognized reality that to achieve effective




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public participation, meeting times and places must be convenient for residents who work and for




those without access to an automobile. Holding a meeting during the day or at a location that is




inaccessible gives the community the clear impression thai the conveners of the session are not




interested in what it has to say.




       Industry and state representatives suggest that ongoing advisory groups, such as the




community advisory groups established under the chemical industry's Responsible Care




program, could provide fertile opportunities for consulting with community representatives about




environmental justice issues in a timely and effective manner.




       The Committee also recommends that state and local governments consider developing




public education classes to inform the public about the operation of permit programs, the science




of assessing exposure and risk, and the technical aspects of plant operations and pollution




control. People with this base of knowledge are more likely to participate meaningfully in the




consideration of disproportionate burdens and cumulative risk, whether those issues arise in the




first or second track of a state or local environmental justice program.




       The Committee further urges EPA and state and local environmental agencies to consider




 making similar educational opportunities available to the staff of agencies responsible for




 economic development and zoning whose decisions have grave but perhaps unforeseen




 implications for environmental justice.




        The Committee recommends that early efforts to mediate permitting disputes occur in an




 informal  atmosphere where participants feel comfortable, are encouraged to ask any questions




 that occur to them, and are allowed to raise all concerns that are  related to the facility's operation.




 Early, informal participation may not obviate the need for more  formal hearings later in the




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process, but the Committee believes that it provides the most promising opportunity for timely



resolution of environmental justice disputes.



       During such deliberations, participants must have access to understandable data



concerning the facility's operations and the likely implications of the permitting decision for



public health. EPA can assist state and local governments in developing such information
                                                                                         j


through its national databases that include monitoring and release data, as well as information



about environmental conditions in the area where the facility is located.
                                       •


       The Committee agrees that permit applicants should be asked to develop additional



information if necessary to supplement materials provided by the government, especially facility-



specific facts such as compliance history, discharges and emissions, and facility processes,



including opportunities for pollution prevention.



       State and local programs should ensure that important documents are translated into



languages other than English as appropriate. Permit proceedings can involve extensive



documentation, and state and local regulatory agencies should make their best efforts to impose a



reasonable burden on permittees.



       Last but not least, the Workgroup believes that state and local governments should

                                                                                         |

articulate in writing the reasoning that underlies their decisions on environmental justice issues,



explaining to the community and the permittee why they reached the resolution they have



adopted.



       The Committee did not reach consensus on another possible aspect of public participation

                                                                                         i

programs: giving communities the financial resources to obtain their own. technical advisors.



Environmental justice advocates believe that such technical assistance is always valuable, and



                                           52

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even necessary in many circumstances. They stress that communities should be able to find their

own technical experts who are able to give them independent advice that is not influenced by

government or industry. Industry representatives are generally opposed to the mandatory

inclusion of technical assistance in environmental justice programs, arguing that it would create

an expensive new bureaucracy to support state and local permitting programs.  State

representatives respond that while some situations create a need for technical assistance, state

agencies should be able to provide it to people. A local government representative cautions,

however, that most local governments are not in the position to promise such help. One state

representative said that it was important for industry and the states to recognize that if the process

becomes hypertechnical, communities have little choice but to "go political."

Participation by Government

Inform and involve all relevant levels and types of government entities in the process of
reviewing actions that may have environmental justice implications.  It is especially important
to cooperate with local government officials, including economic development officials.

       The Committee recognizes that successful environmental justice programs prevent, avoid,

or mitigate discrimination in environmental decision making. Another important  attribute of

such programs is to avert, to the maximum extent practicable, extensive delays and inconsistent

results as the applicant traverses the web of state and local agencies that must approve its

operation of a facility. In addition to agencies with regulatory authority, other branches of

 government, such as economic  development agencies, are frequently involved in planning new or

 expanded facilities, as well as ensuring that existing facilities remain where they are and prosper.

        While the importance of including  the permit applicant and community representatives in
                                            53

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early discussions of environmental justice issues is obvious, the significance of involving these




other government entities is too often overlooked. Not only should their involvement prevent




inordinate delays in the decision making process, it may well make it possible to address




community concerns more directly.  For example, residents may be concerned about fire code




issues or the configuration of a highway used by trucks delivering materials to the plant. By




including officials with the authority to rectify such problems, both the permit applicant and the




community will benefit.




       State and local government representatives on the Committee stress that zoning and land




use decisions are frequently at the root of environmental justice concerns., which can be




characterized as the problems, caused by the proximity of industrial activities to residential




neighborhoods.  To truly prevent such problems, local officials must be consulted early and




educated on the potential future ramifications of such decisions.




       Some state representatives take this point one step further, arguing that because they have




no control over such local decisions, state agencies should not be held accountable for them in




the context of permitting decisions with respect to facilities that are clearly allowed to operate in




the area under local zoning laws.




       As important as it is to include all relevant state and local officials in the outreach effort,




the Committee believes that state or local environmental agencies must remain firmly in charge




of the process with respect to ongoing permitting decisions. Wherever possible, environmental




justice concerns should be integrated into the permitting process.  Members of the Committee




disagree, however, on the important issue of whether career permitting staff should be trained to




evaluate environmental justice issues raised by their work or whether these issues require the




                                           54

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participation of staff whose job it is to focus exclusively on environmental justice concerns, with




some members fearful that if officials without technical background and expertise are assigned




responsibility for evaluating complaints, important issues could get inadequate attention.




Community Monitoring





Build community monitoring capacity.




       The Committee recommends that, in the context of Track 2 programs, state and local




governments consider initiatives that allow communities to continue to assess the compliance of




permitted facilities after initial environmental justice issues relating to the issuance of the permit




have been resolved. Building community capacity to monitor industry performance may prove




very effective in assuaging community anxiety about the health and environmental risks posed




by individual facilities. The Committee believes that monitoring and other information reported




to the government should be readily accessible to affected communities.




       Many Committee members further believe that, in the context of Track 2 programs,




consideration should be given to incorporating terms and conditions that mitigate discrimination




in the permit, making them enforceable by state and local governments, as well as EPA.




Alternatively, such requirements could be set forth in separate, binding contracts negotiated with




the community, with provisions that permit their enforcement in court.




       Industry representatives note, however, that voluntary agreements achieved in Track  1




programs are distinguishable from Track 2 mitigation arrangements.  They are concerned that the




voluntary nature of Track 1 programs not be forgotten. Although industry has many reasons to




honor the commitments it makes to the community, turning these commitments into legally
                                           55

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enforceable obligations could undermine the basic premise of a voluntary program.




       The Committee did not reach consensus on the question of whether environmental justice




programs should facilitate the initiation of citizen suits by, for example, adding expanded




authority for private enforcement to relevant state laws. Industry and state representatives were




strongly opposed to the idea that states assist citizen efforts in this direction, while other




participants believe that citizen enforcement was an important supplement to government




authority, and would give citizens the sense that they are "empowered" to address future




concerns. A local government representative suggests that EPA examine the California Public




Utility Commission Ombudsman Program for effective approaches to these issues.




       This disagreement should be distinguished from the Committee's recommendation that




citizens be given a meaningful opportunity to monitor compliance with agreements that require




permittees to carry out mitigation measures for a period of time. As discussed in the section




entitled "Mitigation" of this report, ensuring community  capacity to enforce contracts they




negotiate with the permittee is essential so that the benefits of mitigation measures are delivered




over the long-run.




Significance of the Template




       The Committee recognizes that EPA has a difficult task ahead in ensuring that




communities are protected against discriminatory effects, dealing with state and local




government requests for flexibility, and responding to industry's need for expeditious,




predictable, and technically sound decision making.  However, the Committee believes that this




task is of the utmost importance and urges EPA to continue to give it high priority.  As one state
                                           56

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representative put it, the development of effective environmental justice programs gives •




government the opportunity to "walk its talk," fulfilling the equitable ideals that are at the heart




of Title VI.





EIGHT ISSUES OF SUBSTANCE






Defining and Evaluating Effects




       As explained in the introduction to this report, members of the Committee had




profoundly different views regarding the definition of the "adverse effects" covered by Title VI.




The Committee understands that these issues inevitably will be addressed by the courts. The




Committee also recommends that EPA seek the counsel of experts in other areas of civil rights




law, in an effort to glean whatever insights are available from those better developed legal




precedents. (See the "Next Steps" section of this report.) The Committee hopes that EPA and,




for that matter, other decision makers, will keep the following considerations in mind as the




Agency rewrites the Interim Guidance, develops a model plan for state and local environmental




justice programs, and turns its attention to other areas that raise environmental justice concerns.




       The Committee's views regarding the appropriate definition of "adverse effect" can be




explained as a spectrum. At one end is what can be described as the "narrow implications"




interpretation of the statute, which defines adverse effects as health problems caused by




emissions or discharges that are directly regulated at the facility at issue.  Industry




representatives on the Committee generally subscribe to this view. The other end of the




spectrum is best described as the "broad implications" interpretation, which defines adverse




effects as changes in a community's well-being that are related to the permit under consideration.






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Environmental justice advocates on the Committee generally subscribe to this approach. >



Between these two positions are multiple shades of gray that at times perplex even those who are



certain that their views are anchored at one end of the spectrum or the other. Before considering



those shades of gray, it may be helpful to explain the two positions more thoroughly.



       Under a narrow implications reading of Title VI, adverse health effects are covered by the



statute's prohibition on discrimination.  Adverse health effects would include problems that are



described by the Committee's Workgroup I as "bodily impairment," "infirmity," "illness," or



"death." To fall within Title VI, such injuries must be caused by the  activity addressed by the



permit. Threatened as well as actual health effects would be covered by this interpretation, at



least to the extent that disparities in levels of risk can be quantified. In this view, harm to the



environment is not covered by the statute's ban on discrimination against people unless such

                                                                                         i

harm can be linked to threats or actual effects on human health.



       Members of the Committee subscribing to this view recognize that demonstrating a



causal link between a regulated activity and the manifestation of disease is a difficult and
                                                                                         I


controversial problem. For the purposes of Title VI, policy options range from a very demanding
                                                                                         j
                                                                                         i

test of causation, akin to the level of evidence that would be required in a private lawsuit seeking



damages for illness caused by a defendant's pollution, to a less demanding and more protective
                                                                                         i
                                                                                         i

test, such as one modeled on the regulation — with an ample margin of safety -- of toxic air



emissions that may cause illness at uncertain levels of exposure. The first test would require that



adverse effects be manifest and their causes provable, while the second test  would infer the



existence of adverse effects on the basis of elevated levels of pollution in the community.



       Industry representatives on the Committee advocate a test that would require Title VI



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plaintiffs to prove a direct link between the permitted activity and the adverse health effect.




While they would not necessarily require proof of causation comparable to what some courts




have required in the context of toxic tort cases, they would reject "circumstantial" evidence of a




causal link and instead require demonstrations that (1) exposure to the pollutant probably did




occur and (2) such exposure could have the effect of producing the adverse health consequences




covered by the complaint.




       Environmental justice advocates are equally strong in their opposition to this approach,




arguing that — at the least — it would require a full-blown risk assessment to quantify the precise




nature and scope of the harm at issue and -- if taken to its logical extreme -- would mandate




clinical or epidemiological studies proving causation. These  members contend that this heavy




burden, if imposed on claimants, would nullify the protections afforded by Title VI as a practical




matter.  They argue that evidence that a community is affected by from multiple industrial




facilities and that no other neighborhood in the area is similarly affected is enough - in and of




itself-to demonstrate an illegal disparate impact without undertaking a controversial analysis of




cumulative risk and associated health effects.




       One academic member of the Committee suggests that if industry representatives insist




on such a demanding standard, it should only be imposed in the context of a two-step, "burden-




shifting" approach. During the first step, a claimant would make a showing that the permit or




other environmental decision could cause disproportionate adverse effects by, for example,




demonstrating that communities of color bear a larger burden of pollution than the general




population, and this showing would constitute aprima facie case. During the second step, the




 state or local agency, in conjunction with the permittee, would be given the opportunity to rebut




                                            59

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this showing by producing a risk assessment or other convincing empirical study.




       Members of the Committee subscribing to the narrow implications interpretation of Title




VI believe equally firmly that as long as the permit conforms with applicable regulations, its




issuance cannot violate Title VI because EPA is required to set permit standards that protect all




persons. They contend that to read the law to override the health assessments in EPA's




regulations would result in the promulgation of more stringent environmental regulations on a




site-by-site, industry-by-industry, or neighborhood-by-neighborhood basis, under the authority of




a civil rights — not an environmental ~ law, an outcome that they view as both illegal and unfair.




       Environmental justice advocates respond that industry is routinely regulated site-by-site




and sector-by-sector under federal, state, and local environmental laws, and that there is no




legally cognizable prohibition on such approaches if they are necessary to eliminate illegal




discrimination.




       There remains the issue of adverse health effects caused by "cumulative risks" and




"synergistic effects."  The term "cumulative risk" is used here to connote threats to public health




caused by exposure to the sum total of releases, and the term "synergistic effects" is used to




mean adverse health effects caused by exposure to a mixture of emissions that interact with each




other to produce new risks.




       At this point, the relative simplicity of the narrow implications approach becomes more




complicated because proponents of this interpretation recognize that environmental regulations




often do not address such potentially serious threats. Or, to put it another way, proponents of the




narrow implications interpretation of Title VI recognize that risk assessment, as well as the




assessment and regulation of sources on a cross-media basis, have a role to play in the




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application of the statute even if a facility is otherwise operating in compliance with traditional




regulatory requirements. Although they recognize the potential importance of cumulative health




risks and synergistic health effects, some members of the Committee believe that the science




"isn't there yet" to identify and measure such problems with the precision necessary to support a




Title VI complaint.  Despite these reservations, they support the Committee's recommendation




that EPA make research and data gathering in these areas a high priority.




       However the causal link between pollution and an adverse health effect is defined, a




narrow implications interpretation of Title VI would draw the line at this category of harm,




excluding from the ambit of the law, as well as programs designed to implement it, any




environmental, economic, cultural, social, or psychological harm that may befall people of color




as a result of a permitted activity or other environmental decision.  Proponents of this analysis




believe that the application of Title VI to environmental programs must remain limited to the




protection of human health and aspects of the environment that affect human health, and cannot




be extended to other aspects of community life. They argue that to read Title VI more broadly




would be to import social and economic policymaking into the implementation of environmental




laws, a result never intended by Congress. They further contend that economic and social




concerns are not only amorphous, but are caused by factors way beyond the  control of facilities




seeking environmental permits. Attempting to address s\ich deep-seated problems  in this context




is impossible as a practical matter and would cause severe and unfair hardship for the owners and




 operators of permitted facilities.




       Environmental justice advocates object to this reading of Title VI, arguing that both Title




 VI and the major environmental laws have a significantly broader reach than health effects, and




                                            61

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extend to the environmental, economic, and social costs that pollution imposes upon people.




They read Title VI to encompass a broad range of potentially adverse effects, including damage




to human health, the environment, or a community's economic, cultural, social, or psychological




well-being.  Any of these harms would be an appropriate subject of a Title VI complaint if it is




linked to the permitted activity or-ether environmental decision.




       Examples are probably the best way to explain the scope of this perspective. "Adverse




effects" covered by Title VI would include contamination of the food chain, as well as damage to




other natural resources, whether used for subsistence or recreation. The term would also include




economic harm such as decreased property values or a deterioration of the quality of life in the




neighborhood that makes it more difficult for residents to maintain a decent standard of living.




Adverse effects would include interference with religious practice or cultural and spiritual




traditions, such as the destruction of sites held sacred by Native American land-based religions,




as well as damage to culturally and historically significant places or artifacts. The term would




encompass social problems that may be attributable to added truck traffic  to and from the




permitted facility, such as more prostitution on public streets.  The term would also include




psychological harm, such as people's perceptions that permitted facilities  are not safe, posing




either acute or chronic threats to the community.  Finally, environmental justice advocates




believe that excluding a community of color from the permitting process,  even if no other




adverse effect is documented, would constitute disparate treatment that is  illegal under Title VI.




       These members of the Committee suggest that EPA analyze disparate impact by




constructing scenarios and giving guidance both on how they should be handled by state and




local governments and how they will be handled if subject to a Title VI complaint filed with the




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Agency. An initial - and not exhaustive -- list of such scenarios would include:




       1.      Situations in which a state or local government has treated the permitting of




              similar facilities within its jurisdiction differently, and this disparate treatment




              affects communities of color more adversely than other communities. For




              example, the state or local government may have excluded communities of color




              from participating in the permitting process but allowed similarly situated non-




              minority communities to participate.




        2.     Situations where a state or local government has granted a permit to a facility




              located in a community of color that is already affected by a disproportionate




              burden of adverse effects related to the presence of other industrial facilities that




              are permitted by the state or local government.




        3.      Situations where a state or local government has granted a permit to a facility




               located in a community of color that is already affected by a disproportionate




               burden of adverse effects related to the presence of other industrial facilities that




               are not permitted by the state or local government.




 Environmental justice advocates on the Committee believe that if EPA takes the approach of




 describing situations that would constitute illegal discrimination under Title VI, the preventive




 goals of the law would be achieved far more effectively.




        Consistent with their broad view of the scope of Title VI, these members of the




 Committee would use a standard of causation that is expansive, encompassing adverse effects




 that are linked directly ~ and indirectly -  to the permit or other environmental decision.  For




 example, they argue that if a community is especially vulnerable to environmental pollution




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because it lacks access to medical care or has a poor diet, the community is a vulnerable .




population that deserves stronger protection than populations that do not labor under such




disadvantages.




       These members of the Committee reject the argument that the ambit of Title VI is limited




to the scope of applicable environmental law, and instead contend that adverse effects are




covered by Title VI if they are made possible or caused by the activities covered by the permit or




decision. Under this approach, a state or local agency could grant a facility a permit that




complies with all of the requirements imposed by environmental law and still violate Title VI.




       The shades of gray along the spectrum marked by these two interpretations depend on




acceptance of the concept of preventive programs that could be sponsored by EPA, the states, or




local governments.  Thus, many members of the Committee, including some industry,  state, and




local government representatives, are willing to broaden the scope of preventive programs to




encompass problems beyond adverse health effects, including environmental, economic, social,




and cultural harm.  They are willing to take this step because they believe that some of these




problems are in fact exacerbated by industrial facilities.  They also think that people of color are




convinced that this link exists. To address both the real and the perceived manifestations of such




problems, a preventive program should distribute responsibility for mitigation more equitably




than is possible in the context of permitting a single facility.  Industry representatives note that




while they share the view that preventive programs should be proactive and will prove more




expensive, such programs must be clearly distinguished from the narrower legal confines of a




Title VI complaint.




       Perhaps because these issues are difficult, and the difference in viewpoints is stark, the




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Committee spent far more time discussing preventive programs than debating the definition of


adverse effect in the context of permit decisions. EPA may be drawn in a similar direction when
         \             '                        ,

it rewrites the Interim Guidance and further develops a model plan for state and local


governments. Ultimately, however, to develop meaningful standards for permitting and other


decisions, a more precise definition of adverse effects must be developed.


Identifying the Community of Concern


       Members of the Committee generally recognize that, in the context of decisions made


with respect to individual facilities, the term "community of concern" has two distinct


components: demographics and exposure.


       The demographic factor measures the percentage of members of a protected class in the


population affected by a permit or other decision in comparison to the percentage of protected


class members in the population of a "reference area."  Obviously,, delineation of the community


of concern and the reference area is critical because it determines which areas are protected


against discrimination under Title VI.


       Many members of the Committee advocate a site-specific test to identify the community
                                                                         /

of concern that would trace the environmental releases affected  by the permitting or other


decision to the populations likely to be exposed to such releases. Neighborhoods in an exposure


pathway would be included in the community of concern. Because existing modeling and


monitoring methodology often are not accurate reflections of actual exposure, this step of the


analysis is easier said than done. The Committee's concerns about the accuracy of such


predictions, especially given the dearth of monitoring results in many places and the lack of data
                                           65

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. regarding cumulative risks and synergistic effects, are the basis for its recommendation that EPA


 commit significantly more resources in this area.


        Some members of the Committee are sufficiently concerned about imperfect data that
                                                                                     • .    i
                   '                                        !                               I
 they are willing to consider a more arbitrary but consistent, "radius" approach. Under this

                                                                                          i
 approach, a circle' of a given radius would be drawn around the facility and everyone living


 within the circle would be defined as the community of concern.   For example, as an admittedly


 arbitrary, but transparent and easily applied alternative, the Environmental Justice Protocol


 developed by the Public Interest Law Center of Philadelphia proposes a one-half mile radius,


 with the circle to be enlarged if it does not encompass 1,000 people.  The protocol is attached to

 tiiis report as Appendix H.
                                                 •
                     •
        An industry representative objects strongly to this approach, noting that site-specific

 assessments must be based on actual exposure to the releases in question, as opposed to "mere

 proximity." Even under the relatively looser approach to defining affected communities


 envisioned for Track 1, preventive programs, this member argues that exposure and effect must

                               1
 remain the measure, as opposed'to such concepts as "pollution load" or "environmental burden."


        A local government representative agrees with this perception, arguing that


 disproportionate adverse impacts must be assessed on the basis of the risk of exposure.


 However, she contends that a radius approach might very well be useful in the context of general


 screening (or mapping) conducted to identify vulnerable communities, especially in the context


 of Track 1 preventive programs. She adds that the appropriate radius distance will vary by


 pollutant (e.g., degree of toxicity) and media type (air, water, or soil) because mere proximity is


 too crude a tool to use to gauge potential  risks to public health.


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      ' Environmental justice advocates urge a more flexible, resolution of these issues that




 would depend on the adverse effect to be measured.  For example, they say that a negative




 impact on property values might be best evaluated using a radius approach, while the adverse




. health effects of air pollution could be modeled or monitored without resort to a relatively




 arbitrary radius cut-off. However, as noted elsewhere hi this report, the Committee did not reach




 consensus on such flexibility, primarily because it lacks consensus on the universe of adverse




 effects that Title VI addresses in the first place.




        Some state and industry representatives on the Committee argue that in many cases,




 people who are not adversely affected, nevertheless insist that they are members of the




 community of concern. They.contend that this problem, as well as a tendency to leave the




 process perpetually open to public participation by new people, mean that the concept of




 "community" can become a "moving target." They urge federal and state regulators to include




 local officials, both elected and appointed, in whatever definition of community of concern is




 ultimately adopted.  It is worth noting that however federal, state, and local regulators define




 communities of concern, the courts are likely to superimpose a standing requirement on plaintiffs




 when Title VI disputes reach them for decision. Discussing the status of standing doctrine and




 its likely application to Title VI cases is beyond the  scope of the Committee's work, but this




 issue could be addressed if EPA convenes the group of legal experts suggested in the "Next




 Steps" section of this report.



         As for the important issue of defining the reference  area (the same concept is sometimes




 referred to as the "general population") with which the demographics of the community of




 concern is compared, the Committee assumes that in the vast majority'of cases, this area or




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population will coincide with the state or local agency's jurisdiction.  Thus, in a dispute '




involving permitting decisions by a state, the demographics of the state's entire population would




be compared to the demographics of the community adversely affected by the decision.  Of




course, decisions made by multiple agencies or decisions that affect communities that straddle




jurisdictional lines can pose problems for this relatively straightforward approach.




       Ironically, defining the community of concern in the context of individual permitting




decisions may prove less difficult and controversial than defining such communities in the




context of preventive (or Track 1) programs. Environmental justice advocates on the Committee




generally favor the application of "mapping"-- also known as "general screening"-- to




geographic areas that appear to be vulnerable on the basis of pollution levels and demographics.




They urge federal, state, and local regulators to use such comprehensive profiles to design




innovative prevention programs, deploy limited resources, target enforcement, and undertake




more extensive research and data gathering.




       Industry and state representatives on the Committee predict that mapping, screening, or




similar efforts to identify communities of concern will chill economic development because they




will result in more stringent standards and more burdensome procedures for permitting of




facilities in the targeted area. By discouraging business interest in locating in a community,




mapping or screening could harm residents of the "protected" neighborhood as gravely as




industry.  They question why mapping is necessary if existing regulatory standards are being




met. Some industry representatives further argue that mapping technology may not reflect actual




exposure, much less a causal relationship between  exposure and adverse effects, and could result




in unwarranted decisions to exclude industrial operations from a given neighborhood.




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       State and local government members of the Committee are especially concerned dbout




the implications of mapping for Brownfields redevelopment, an aspect of state and local




environmental programs that the Agency has pledged to support. Apart from its obvious




advantages to the inner city, these members of the Committee point out that Brownfields




redevelopment is a crucial component of initiatives to combat the substantial harm to the




environment and public health caused by suburban sprawl, a growing problem in many areas of




the country.




       Environmental justice advocates counter by explaining that they recognize the




implications of screening or mapping that leads to special treatment of a neighborhood or other




geographic area and understand that such efforts could result in chilling economic development.




They view this risk as worth taking, however, in order to avoid the far more significant




possibility that disproportionate adverse effects will be overlooked. Further, they contend that




distinctions must be drawn between the beneficial kinds of economic development that are




sponsored under many Brownfields programs and development that leads to the siting or




expansion of facilities that exacerbate the burden of environmental pollution borne by a




community.




       In their final comments on the report, two members of the Committee —• one representing




industry and the other local government — commented that it is possible to discover which areas




bear a disproportionate environmental burden without talcing the analysis to the point of mapping




or screening specific neighborhoods. Indeed, these members believe that to implement a




preventive program, state and local governments must discover, with some specificity, the total




burden from regulated and unregulated sources that confronts a community of concern.




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However, to make good use of this analysis, state and local officials need not label a


neighborhood as sensitive or otherwise suspect. The Committee did not have time to explore


these possibilities further, but reiterates its recommendation that EPA devote resources to


strengthening available assessment tools in this context.


       Some members of the Committee believe that in the context of preventive - or Track 1~


programs, EPA, the states, and local governments should incorporate low income communities in


their analysis of disparate impact, especially because a 1994 Executive Order includes such

                                                   t
communities within the scope of EPA's environmental justice mission. Executive Order No.


12,898, Federal Actions to Address Environmental Justice in Minority Populations and Low-


Income Populations (February 11,1994/ However, other members of the Committee, including


some of its industry representatives, strongly disagree with this proposal, arguing that


environmental justice initiatives should remain focused on the classes protected by Title VI.


Although EPA will continue to implement Executive Order 12,898, the Committee did not reach


consensus on this important point.


Determining Disparity


       What degree of disparity in adverse effects is covered by Title VI? Is a measureable


difference in the harm experienced by a community of concern versus the reference area


population enough to trigger sanctions, or must the harm be severe in order to warrant federal


intervention? Although the Committee debated this important question, it did not develop a


consensus response.


       Workgroup I was assigned the task of discussing disparity, and the group ultimately
                                          70

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compiled a universe of five possible standards on the basis of its discussions and knowledge of


the standards used in other contexts. (A copy of the group's final draft report on these issues is


attached as Appendix C.)  The disproportionate adverse effect could be described as (1)



"significant," (2) "substantial," (3) "above generally accepted norms," (4) "appreciably


exceeding the risk to (or the rate in) the general population," or (5) "any measurable disparity."


Some members of the Workgroup favor the term "significant" as they understand that standard to


be applied under the National Environmental Policy Act. However, other members of the group


say that they do  not understand the content of such a standard, pointing out that NEPA does not
                •                                              i -\ ,

actually control  activities but rather requires that they be analyzed before they are undertaken.


       Some industry members of the Committee propose use of the term "substantial" to


summarize the degree of disparity covered by Title VI, arguing that relatively large harms are the


appropriate targets of the nation's civil rights laws.


       Environmental justice advocates disagree with this view, believing that it sets too high a


bar to proving disparate impact.  Some suggest the alternative of using a statistically-based test


that would find  aprimafacie case of illegal discrimination if the disparity between the affected


community and the reference population is two standard deviations or higher. If the disparity is


greater than two standard deviations, the proposal would create a presumption that discrimination


had occurred.


       A local government member of the Committee objects to this approach, however, arguing


that a statistical correlation is not the same as a demonstration that  a facility is causing a


disparate impact. This member of the Committee further emphasizes the importance of


monitoring and other data that reflects actual conditions in the field, to be used in conjunction



                                            71

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with the modeling and other hypothetical modes of analysis that are often employed.


       An academic member of the Committee notes that whichever standard is applied, it must
                                          ;               ;

be sufficiently sensitive to respond to communities of color that are particularly vulnerable


because, for example, they experience a high rate of asthma or other respiratory diseases. In that


context, a test that simply measured order of magnitude disparities in total pollution loads (e.g.,


X tons of emissions versus Y tons) would not sufficiently protect the community from


^discrimination.


       Whichever standard EPA, the courts, and state and local governments ultimately adopt,


given the imprecise nature of monitoring and modeling, exposure analysis, and risk assessment


in virtually any environmental context, the determination of disparity is likely to remain the


subject of debate for the foreseeable future.


The Role of Existing  Standards


       As mentioned above, the role of compliance with existing regulatory standards in


determining the merits of a Title VI complaint is among the most difficult problems tackled by


the Committee and is the issue that underlies members' differing views of fas.Select Steel


decision.  Industry representatives generally read the decision as establishing the favorable


precedent that a permit's compliance with "health-based standards" will defeat a Title VI claim.


Some environmental justice advocates and academic representatives agree with this


interpretation, but view the decision as an unfortunate precedent. Other members of the


Committee believe that the precedent set in Select Steel is limited to the relatively unusual


circumstances of the case: a permit for a facility located in an area categorized as attainment for
                                           72

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the purposes of the "Prevention of Significant Deterioration" program under the Clean Air Act,

42 U.S.C. §§ 7470-7492.

       As this last interpretation suggests, it is crucial to establish at the threshold of this

discussion what is meant by the phrase "health-based standards." Many environmental

regulations are not based on an analysis of what levels are "safe" from a health perspective, but

rather are technology-based, performance-based,3 or procedural. Technology-based standards

represent a judgment that employment of the technology is the best we can do to control

pollution at a reasonable cost. Similarly, performance standards specifying how facilities must

be designed reflect a judgment regarding the best practices available to prevent contamination,

rather than a guarantee that contamination will never occur. Procedural requirements such as the

maintenance of records or the submission of monitoring reports are essential tools to ensure

compliance but do not directly control pollution.

       The question remains, therefore, whether compliance with technology and performance-

based standards, as well as such procedural mandates as monitoring, reporting, record keeping,

and inspection requirements, should mean that a permit complies with Title VI? The Committee

has no easy answer, especially if the claim involves the possible creation of cumulative risks or

synergistic effects.

       As discussed above, some members of the Committee argue that Title VI imposes an

independent mandate that disproportionate adverse effects be controlled, even if those effects are
       3 The term "performance-based" standards is used here to connote such requirements as
the design specifications imposed under the Resource Conservation and Recovery Act and is not
intended to encompass standards that set performance targets in order to achieve "safe" levels of
pollution, such as waste load allocations under the Clean Water Act.

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 perfectly legal under existing law.  Under this view, if a community of concern is exposed to a


 level of releases higher than that experienced by the general population, Title VI requires that,


 additional relief be provided.


         But what standards should apply beyond the application of existing requirements,


 especially in the context of individual permitting decisions?  Industry and some state
                                                           i

 representatives on the Committee observe that forcing a facility to reduce emissions significantly

                                                           !         •
 more than its competitors has a range of undesirable implications, as discussed further in the


. section entitled "Mitigation," below. They argue that EPA and state and local governments lack


 the legal authority to make such standards up as they go along on a permit-by-permit basis, and


 instead must either return to Congress for additional authority or amend existing regulations


 before they require a facility to go  "beyond the law" in mitigating the effects of its emissions or


 discharges.


         On the other hand, environmental justice advocates contend that while it may seem


  logical to use health-based standards as the benchmark for determining whether an impact is


  "adverse," several factors suggest that this approach is extremely problematic.  First, statutory


  mandates that EPA implement health-based standards have not been fully implemented, for a


  variety of political, economic, scientific, and legal reasons.  Especially with respect to toxic


  pollutants, many of which are common in urban areas, EPA has been slow in crafting specific


  standards that will protect human health and the environment as the statutes mandate.


         Second, even if there is a health-based standard in place, such as the ambient air standards


  for ozone that were at issue in Select Steel, the problem of "hot spots" must be considered. The


  air across a large regional area might be clean enough to meet the standards overall, but there


                                              74

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may well be pockets of pollutants at levels well above the standards.  If such hot spots occur in




racially-disparate patterns, these members of the Committee argue, EPA should find a Title VI




violation:




       Third, EPA must take the nature of the community into account.  Communities




comprised of a protected class may include many, people who experience high levels of




respiratory illness, elevated blood lead levels, restricted access to medical care, or other problems




that make them especially vulnerable to certain types of pollution.  If health-based standards are




not sufficiently stringent to protect such "vulnerable populations,"  a disparate adverse impact




may well occur despite compliance with regulatory requirements.




       Finally, environmental justice advocates contend that health-based standards are




sometimes not sufficiently protective and it may be common knowledge in the scientific




community that they need to be tightened before such changes are  actually made.  For example,




EPA recently announced changes in National Ambient Air Quality Standards that may not be




implemented for several years.  These members of the Committee  believe that in making such




changes, EPA has acknowledged that existing standards are not sufficient to address ongoing




health risks,




 Agency Jurisdiction




        Members of the Committee advocating a narrow implications interpretation of Title VI




 believe that it is unreasonable to require state or local governments to address problems that are




 not within their jurisdiction, even if a community of concern is adversely affected by those




 matters.  In this context, jurisdiction means the agency's authority over certain activities.  For
                                            75

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example, environmental agencies often do not have authority over truck traffic to and from a



permitted facility; that role is generally left to local public works and police departments.



Jurisdiction can also mean the geographic location of a regulated activity. For example, state
                                                                                         I

agencies typically cannot affect pollution that travels across state lines from a facility regulated
                                                                                         i

by another state.  In either sense of the term, industry and some state representatives argue that



the appropriate scope of Title VI is coterminous with the jurisdiction of the state or local agency



responsible for the decision under challenge. Not only do they believe that it is bad policy to



expect state agencies to reach beyond their jurisdiction, they contend that Title VI cannot be read



to require a state agency to exert control with respect to activities over which it has no legal



authority.

                                                                                         i

       One state  representative notes that environmental agencies generally do not make facility
                                                         :                                i


siting or other potentially objectionable land use decision.  Because zoning is an activity reserved
                                                         i                                i
                                                                                         i

to local governments across the country (i.e.. counties, cities, and towns), this member argues



that environmental agencies have no control over such decisions and become involved in their



implications "very late in the game" after a "great deal of history has been created." This



member further contends that zoning has allowed industrial facilities to be located near



residential  neighborhoods. Facility-specific decisions are then made in corporate board rooms



outside the public arena.  He asserts that early, proactive involvement with communities should



occur before local land use and business location decisions are made, which is also before state



environmental regulators become involved.



       Local government representatives on the Committee also emphasize the importance of



local land use decisions.  They urge EPA to make aggressive efforts to both educate and involve



                                            76

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land use decision makers in the development and implementation of environmental justice


policies at the national, state, and local levels.


       Other members of the Committee, including other state and local government


representatives, environmental justice advocates, and academics, disagree with the position that


because local land use decisions may be the first step in the creation of discrimination,


environmental agencies are not responsible for the effects of such decisions. They argue that the


mission of environmental agencies is correctly viewed as; the protection of public health and the

                                                    ^
environment wherever and whenever necessary and that this mission cannot be limited by the


short-sighted details of particular.regulatory programs. They also contend that the true


respondent to a Title VI complaint is the state or local government as a whole, as opposed to the


environmental agency in isolation, and that all of the state's resources and authority should be


combined to redress discrimination.


       These members of the Committee believe that programs to redress Title VI concerns will


be needlessly undermined if agencies take a constricted view of problems and potential solutions,


especially in the context of Track 1 preventive programs. They point to such success stories as


EPA and state cooperation to establish emissions trading programs as a means to meet National


Ambient Air Quality Standards as a classic example of a. creative and effective response to the


perceived constraints of agency jurisdiction, and they urge federal, state, and local regulators to


take a similarly innovative approach to problems raised under Title VI.


       One representative with extensive experience at the municipal level stated that the first


step in dealing with any environmental justice issue is to identify all of the governmental entities


with influence over the outcome, including zoning boards, economic development agencies, and


                                            77

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 public works departments.  Agency officials can then be consulted, or even organized into a




 taskforce, to consider the problem cooperatively.




       It'is worth noting that one industry representative on the Committee supports proactive




 approaches, although she believes that it is important to distinguish between the legal confines of




 Title VI and the more creative Track 1 programs designed to address broader issues of




 environmental justice.




       However, another industry representative on the Committee believes that the issue of




, expanding Title VI beyond the confines of the permitting agency's jurisdiction should never have




 been considered by the Committee because it was "taken off the table" by EPA Administrator




 Carol M. Browner during a meeting with state officials in late 1998.  He adds that the




 Administrator reassured state administrators that EPA would not interpret Title VI to encompass




 activities beyond their legal jurisdiction and that he urged the Committee's Workgroup I to




 remove it from the Committee's agenda. The Workgroup did not achieve consensus on that




 point.




       Significantly, members of the Committee willing to go beyond agency jurisdiction in




 defining the appropriate scope of environmental justice programs also interpret the scope of




 federal and state environmental statutes more broadly, pointing to  federal or state versions of the




 Resource Conservation and Recovery Act, the Clean Air Act, and the Clean Water Act as




 granting state agencies authority to include permit provisions other than those specified by




 regulation if necessary to accomplish the overall mission of the statute. These members of the




 Committee, including its academic representatives, argue that the key federal environmental




 statutes contain authority for ~ and, indeed, a mandate that ~ EPA and slate and local agencies




                                            78

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 go significantly beyond actual harm or imminent threats in protecting public health and the

 environment.

       As one key example of such authority, these members t)f the Committee point to section

' 3005(c)(3) of the Resource Conservation and Recovery Act, 42 U.S.C. §6903(c)(3), which states

 that permits must contain such terms and conditions as federal, state, or local regulators decide

 are "necessary to protect human health and the environment." They further note that a decision

 by the EPA Appeals Board, In re Chemical Waste Management of Indiana, Inc., RCRA Appeals

 N0.-95-2 (June 29,1995), involved the application of this authority to an environmental justice

 complaint.  The Appeals Board concluded that this provision authorizes EPA permit writers to

 take a "more refined look" at a facility's "health and environmental impacts assessment" in

 response to environmental justice claims.

        Academic-members of the Committee also mention the Clean Air Act's requirements

 concerning the Non-attainment New Source Review Program, which calls for an analysis of

 whether the "benefits of the proposed source significantly outweigh the environmental and social

 costs imposed as a result of its location, construction, or modification." 42 U.S.C. §7503(a)(5)
                                                            i
 (emphasis added). These members contend that the most sensible reading of this and similar

 language in other statutes is that Congress intended permitting agencies to have the authority to

 consider a wide range of harms in the permitting context. One of the academic members of the

 Committee provided an extensive analysis of these issues that he helped to prepare for the

 National Environmental Justice Advisory Committee (NEJAC). A copy of that paper is included

 with this report as Appendix N.

         Once again, it is important to emphasize that members of the Committee subscribe to

                                            79

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three distinct positions with respect to the issue of reconciling agency jurisdiction and the
                                                          i         i

application of Title VI: (1) the application of Title VI is coterminous with the limits of agency


jurisdiction; (2) if an agency's action would cause a disproportionate adverse effect, the agency is
                                                          i    '     ;
responsible for that effect, whether or not the agency must go beyond the limits of its jurisdiction


in response to such discrimination; and (3) for the purposes of preventive Track 1 programs only,


agencies should make their best efforts to reach beyond their jurisdictional limits in defining and


mitigating such problems.


New versus Renewal Permits


       State and local governments are routinely faced with four kinds of permit decisions: (1)


renewal or modification of an existing permit with no significant changes in emissions or


discharges; (2)  renewal or modification of an existing permit with decreases in emissions or


discharges; (3)  renewal or modification of ari existing p'ermit with increases in emissions or


discharges; and (4) applications for new permits to cover facilities that will be built. The first


type of permitting decision, which typically does not increase emissions or discharges, is


sometimes referred to as "flipping" the permit and is viewed as the least controversial


determination an agency must make.  The difficulty of the decision required by renewal


applications that seek to expand operations is determined by the increase in emissions or


discharges that  will occur. Applications for new permits covering new facilities are generally the


most controversial.


       The Interim Guidance distinguishes between permit modifications and renewals, viewing


modifications as triggering reexamination of only those aspects of the facility's operations that
                                           80

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are covered by the proposed changes, but defining renewals as an opportunity to review the




"overall operations" of the facility. See Interim Guidance, attached to this report as Appendix F,




at page 7. Thus, the guidance states that EPA will generally treat permit renewals as if they were




applications for new facility permits, but will only examine permit modifications to determine if




the modification itself causes a disparate impact.




       Industry representatives strongly oppose this policy, once again arguing that if an existing




facility seeks to either renew or modify its permit hi full compliance with applicable regulations,




EPA and the states have no authority to deny the  request.  Indeed, these members of the




Committee believe that to approach such situations in the manner suggested by the Interim




Guidance could lead to shutdowns of facilities located near neighborhoods of people of color on




the basis that the cumulative pollution burden in the community is too large, even if the burden is




caused by many sources, including some that are unregulated and others that have permits they




do not need to renew. Industry representative say that companies are willing to play by .the rules




EPA sets forth regarding the implementation of environmental justice standards at new and




 existing facilities, but they argue that these rules must be promulgated using normal procedures,




 not developed on an ad hoc, facility-by-facility basis.




        In contrast, because environmental justice advocates believe that the exclusive goal of




 Title VI must be to prevent discrimination against protected classes, they would apply the same




 standards to all three categories of decisions. A ton of pollution emitted by an existing facility




 has exactly the same effect as a ton of pollution emitted by a new facility, so this reasoning goes,




 and to distinguish between them would flout the central meaning of the law. In fact,




 environmental justice advocates argue existing facilities are often worse offenders because they




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have polluted in a discriminatory way for years.



       Despite the difference in their views, environmental justice advocates, industry



representatives, and state and local officials all recognize that, as a practical matter, it will be

                                                          I

considerably more difficult to persuade regulators to ignore the distinction between existing and



new facilities given the economic dislocation that would be caused by so-called "zero-based



permitting."  Some urge state and local governments and EPA to apply stricter standards to



permits requests that would increase overall emissions in communities that are disproportionately



burdened, whether those requests arise in the  context of renewals, modifications, or new



applications. The possibility that, such a  standard would deter new economic development is not



persuasive to those advocating this approach, who express general skepticism that the benefits of
                                                          t         !


such development would ever reach the people actually living in the community.



       Other members of the Committee suggest that EPA and state and local governments



investigate regulatory approaches modeled on the non-attainment program under the Clean Air



Act, using bubbles, offsets, and emissions trading to compel overall reductions without imposing



an undue burden on existing facilities. However, environmental justice advocates have



expressed concern about the potential discriminatory implications of trading programs.



Mitigation



       It is necessary to answer all of the difficult questions discussed above -- from the



definition of adverse  effects and the identity of the community of concern to the role of existing



regulatory standards and the significance of agency jurisdiction — in order to reach the ultimate



issue in any Title VI dispute: what remedy is required to mitigate the discrimination? This
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question was tackled by Workgroup II, and a copy of its draft report is attached as Appendix D.




     •  At the outset, it is important to note that the Committee did not achieve consensus on .




when the question of mitigation should be addressed in the process of evaluating a Title VI




complaint. Industry representatives argue that a state or local government should first be granted




an opportunity to demonstrate "justification" for the decision under review and should only be




required to mitigate the impacts of its action if the proffered justification is inadequate. In




contrast, environmental justice advocates would reverse the order of consideration of these two




crucial issues: requiring first that mitigation be considered and giving a state or local government




the opportunity to. justify its action only if adequate mitigation is not possible.




       In any event, returning to the issue of what characterizes adequate mitigation, it is helpful




to describe the universe of possible interpretations as a continuum, which Workgroup II




categorized as "loose nexus" mitigation, "moderate nexus" mitigation, and "narrow nexus"




mitigation.  The term "nexus" is used here to connote the relationship between mitigation and the




disproportionate adverse effects that are the subject of the complaint. Thus, narrow nexus




mitigation means remedies that eliminate or reduce the disparate impact.




        The dilemma presented by this approach is that it is often impossible to accomplish full




 mitigation in the context of an individual permit proceeding. To use a simple but telling




 hypothetical suggested by an academic member of the Committee, suppose that an African




 American neighborhood supports the burden of 200 units of pollution, while the reference area to




 which it is compared has a one-unit burden. The company seeking a permit renewal contributes




 ten of those 200 units. It can operate legally under existing regulations without reducing those




 emissions. Denying the permit and shutting down the facility would not eliminate the disparity,




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and would be objectionable and arguably unfair to the facility owner.  To complicate the '


scenario, suppose that the sources contributing the remaining 190 units include facilities


regulated by federally-funded programs, as well as facilities that are either unregulated or


regulated under programs with different sources of support.
                           /                              '
       The Interim Guidance addresses this dilemma by suggesting consideration of


"Supplemental Mitigation Projects" (SMPs) that "address" the disparate impact without
                                                         i

eliminating it. See Interim Guidance attached as Appendix F, pages 10-11. But the guidance


does not articulate further criteria for developing such projects, other than to say that they could


address matters "outside those considerations ordinarily entertained by the permitting authority."


Id. at 11. This comment suggests that SMPs will more often than not  be the result of voluntary


agreements negotiated with the permit applicant, since it is not clear how a permitting agency


could compel their adoption. SMPs are modeled on the "Supplemental Environmental Projects"


(SEP) policy used by EPA and the states in the context of enforcement actions. The policy is


intended to channel resources into remediation that delivers direct benefits in the area where

violations occur.


       However, environmental justice advocates on the Committee strongly object to use of the


SEP model in the development of Title VI mitigation because the model does not provide for


adequate public participation. Instead, they argue, SEPs are developed in negotiations between


EPA and the permittee, with the community consigned to comment on, but not approve, the


measure. These members of the Committee believe that the community must be a participant in


the negotiation. They recommend that the development of a SEP occur either in the context of a


formal legal proceeding, where no parties could communicate with the regulators without


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notifying all other parties, or in the context of a formal mediation, where all parties are at'the




negotiating table on an equal footing, _with adequate technical resources and a neutral mediator.




       Beyond these important issues of a fair process, the Committee has found no easy answer




to the dilemma of mitigating adverse effects caused by multiple sources. Some members




returned to the Clean Air Act non-attainment model, urging consideration of bubbling; offset,




and emissions trading approaches. Others, including some industry representatives, advocate a




"proportional contribution" approach that would require reductions that reflect the permit




applicants share of the problem as a whole (in the above example 10:199 units). Still others




apply a narrow implications interpretation of the statute, arguing that the permittee's compliance




with existing regulatory requirements should defeat the complaint in the first instance.




       The dilemma of how to fashion a fair remedy when many sources contribute to a




disproportionate adverse impact may be easier to resolve in the context of preventive, or Track 1,




programs that are not confined to individual permit decisions.  By anticipating the problems that




may arise in individual permitting proceedings, the states, local governments,  industry, and




affected communities would have an opportunity to fashion more equitable remedies and avert a




complaint when the permitting decision must be made.




        Even if programs are created to encourage the negotiation of solutions, the contribution of




unregulated  sources to the overall pollution load remains very difficult to address. If a facility is




 only asked to make a proportional contribution, how should the overall universe of sources be




 defined for the purpose of calculating its fair share? Is it fair to the community to include




 unregulated sources that will never contribute to the achievement of complete mitigation? On




 the other hand, is it fair to industry to exclude unregulated sources, thereby raising the level of




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the reductions that permitted facilities must produce? The complexity of these issues inevitably
                                                         I
leads to consideration of "moderate" and "loose" nexus proposals.
                                                         i
       The moderate nexus approach to mitigation would allow remedies that do not eliminate

the disparity, but nevertheless address its fundamental effects.  Requiring facilities to initiate

pollution prevention measures, monitor and control fugitive emissions, conduct additional

research into the cumulative risks and synergistic effects of their emissions, or provide the

community with free medical monitoring or treatment, are examples of moderate nexus
                                                         i  .      !
remedies. Presumably, such remedies would be characterized as Supplemental Mitigation

Projects under the Interim Guidance.
                                                         i        i
       Members of Workgroup II ultimately endorsed a "hybrid" approach that combines

moderate and narrow nexus mitigation, requiring that mitigation measures be as narrowly
                                                         I        i
tailored as reasonable and practicable, but endorsing moderate nexus requirements when narrow
                                                         I
nexus mitigation is difficult or impossible to achieve. The main point of divergence within the
                                                         i        !
Workgroup was the difficult issue of how to address adverse health effects that have a disparate

impact, with some members arguing that only narrow nexus mitigation should be permissible

under Title VI, while others contend that moderate nexus mitigation should also be considered in

that context.

       Workgroup II also developed several important consensus recommendations that support

and clarify its endorsement of a moderate-to-narrow nexus hybrid model  Thus, the Workgroup

concluded that mitigation measures that require actions over time and deliver benefits in the

future are a valid form of mitigation but must be enforceable, by the permitting agency and the

community. Second, the Workgroup concluded that meaningful community involvement was  •

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not only a desirable policy goal, but was an essential component of mitigation policy and'

requirements. Third, the Workgroup found that the reasonableness of moderate nexus mitigation
                                                                           s
turns on its ability to deliver substantially greater overall benefits to the community.

The Committee did not have time to address these conclusions in depth, and refers EPA to the

Workgroup II draft report that is included as Appendix D.

          As Workgroup II points out in its report, the point at which moderate nexus mitigation

becomes "loose" depends to a large extent on how the scope of adverse effects is defined. Under

a narrow implications interpretation of Title VI, efforts to address such problems'as the safety

problems caused by increased trupk traffic, changes in property values, or deterioration in the

neighborhood's overall quality of life would alfconstitute loose nexus mitigation.  For those who

view these problems as central concerns of Title VI, efforts to ameliorate them are at least

moderate, and perhaps narrow, nexus mitigation.

       In the end, it may not matter from a public policy perspective what any of these remedies

are labeled, although such categories could take on  real significance as a legal matter when EPA

or the courts are asked to judge the merits of a Title VI complaint. Once an adverse effect is

found to be discriminatory, the courts may well decide that the only acceptable mitigation is the

elimination of the disparity, and therefore the discriminatory effect.  Thus, while EPA, the states,

and local governments may be tempted to develop more creative and equitable approaches to

such remedies, the possibility that claims will become formal complaints weighs in favor of a

narrow-to-moderate nexus approach, as recommended by the Committee's Workgroup II. While

the Committee did not achieve consensus on whether to endorse a narrow to moderate nexus

approach, members representing industry, academia, and environmental justice advocates agreed

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that this approach, on balance, was the most promising from both a policy and a legal



perspective.



       How, then, does the Committee reconcile this conclusion with its endorsement of



negotiations to address the community's true concerns, both early on in the permitting process



and in the context of Track 1, preventive programs? If no limits are placed on the topics that can


                                                        "' i          :

be raised and addressed during such discussions, what happens if community representatives



request relief that is loose nexus at best? If a settlement is reached with the facility owner, and a



Title VI complaint is nevertheless filed, what significance should such negotiated remedies have



as a legal or policy matter?                           .



       Some members of the.Committee believe that a community's right to self-determination



should prevail. As one member put it, the specter of national groups dictating to local



communities what their needs should be is unappealing and a system that allows such results is



unlikely to resolve tensions between industry and communities of people of color any time soon.
                                     •                   i          i


Another member of the Committee argues that the right to self-determination is constitutional,



and that communities should be given every opportunity to decide their own fate, however



misguided the resolution might appear to outsiders. Under this view, it would be possible for a



community to accept mitigation for disparate adverse health effects in the form of increased aid



to local public schools. As long as the decision was made "democratically," this member argues,



the negotiated settlement would block a subsequent Title VI complaint against the regulated



 entity.  (The issue of how to determine whether such decisions are made democratically is

                                                        i


 beyond the scope of this report.)



        Other members of the Committee, including representatives of grassroots community

-------
 groups, strongly disagree with these views. While they do not object to efforts to negotiate




 practical resolutions of disputes and they recognize that communities might use the leverage of a




 possible Title VI claim to win other concessions from a facility owner, they reject the argument




 that loose (or non-) nexus remedies should ever be deemed a sufficient response to a formal Title




 VI complaint. They also point out that there is no place in the current legal system for what




 would amount to a waiver of applicable legal standards by local citizens.  "Government has to be




 at the table," one community representative stated. "The whole purpose of having government is




 to protect the public good." They add that Title VI protects political minorities from majoritarian




. impulses and that, although a majority of a community might "sign off' on a particular




 agreement with industry would not mean that others in the community would be barred from




 filing a Title VI complaint.




        Some industry representatives agree with the importance of having government "at the




 table" and limiting the concept of legal mitigation to the issues addressed by underlying




 environmental laws. They worry that in the absence of an enforceable set of standards,




 negotiations with the community could veer off course into areas that have nothing to do with




 environmental quality and human health, exposing facility owners to unreasonable demands and




 the prospect that if these demands are not satisfied, necessary permits will be delayed.




        On the other hand, one industry representative suggests that if the  community accepts a




 mitigation proposal, EPA should consider this arrangement a 'Voluntary resolution" of the




 dispute and  allow it to stand.  He notes that the earlier in the dispute that such resolutions are




 negotiated, the easier it will be for EPA to follow this principle.  Once a potential case has




 progressed to the point where considerable data documenting adverse^effects has been developed,




                                            89

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the opportunities for voluntary resolution may become more severely circumscribed.


       A second industry representative agrees with this view, and suggests that early efforts to

                                                          j
find mutual solutions offer incentives for both the community and the permittee. If the parties


fail to reach a voluntary solution to their dispute, the community faces the likelihood that its real


concerns will remain unaddressed due to constraints of the permitting process and the permittee


runs the risk that it will be compelled to install expensive technology that affords little
                                                          !         i

environmental benefit. This member of the Committee believes that a Title VI complaint filed to


challenge the mitigation afforded by an early settlement should succeed only if the agreement is


shown to be a "sham" (e,g,, the community was not fairly represented by those negotiating the


agreement) or the person filing the complaint suffers a "unique and unfairly adverse" injury.

                                                          i '_
        There remains the issue of translating mitigation into a legally binding written agreement.


One obvious approach is to write required mitigation measures right into the permit, to be
                                                                   'i
enforced by the permitting agency using its existing authority.  However, depending on the


nature of the mitigation and the attitude of the agency, incorporating such remedies into the
                                                          j         !

permit may not be possible. The alternative  is a contract between the community and the


permittee. If a private contract is the vehicle of choice, provisions allowing communities to


monitor compliance by the permittee and to enforce breaches of the agreement may be necessary.


Justification


        Under the Interim Guidance, the recipient of federal funding is given an opportunity to


 "justify" a decision to issue a permit "notwithstanding the disparate impact," based on its


 "substantial, legitimate interests." See page 11 of Interim Guidance, attached to this report as
                                            90

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Appendix F. A "mere" demonstration that the permit otherwise complies with applicable




environmental regulations is not a sufficient justification under the guidance and no justification




will be accepted if a "less discriminatory alternative exists." Id.  Less discriminatory alternatives




include "mitigation measures" that "lessen or eliminate" adverse impacts or, in the terminology




developed by the Committee, narrow-to-moderate nexus mitigation.  Id.




       The Interim Guidance does not specify any examples of what would constitute sufficient




justification, although it mentions the "articulable value to the recipient" of the permitted




activity, noting that the value of a permit renewal for an existing facility would generally be




easier to demonstrate than the "speculative" value of a new facility. Id.  This example implies




that the economic value of an.industrial facility to its owner (e.g., contribution to a profitable




bottom line) or to the community (§.&, job creation) may constitute acceptable justification




under the guidance.




       EPA did not invent the concept of using economic necessity to justify discrimination.




Especially in the employment context, the courts have recognized an employer's need to apply




"necessary" criteria in screening applicants, on the basis that only applicants meeting those




criteria can perform a job efficiently. See pages 33-44 of the memorandum prepared by the EPA




Office of General Counsel, attached to this report as Appendix J. Whether these precedents can




be used to support a test based on such economic benefits as the preservation of existing jobs or




increased profitability is more controversial, however, because such a test, loosely applied, could




justify virtually any disparate impact that would cost significant amounts to mitigate.




       Members of the Committee understand the implications of this "slippery slope" and some




are uncomfortable with the idea of any form of economic justification.  Others support economic




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justification that rises to the level of business necessity - i.e.. the facility owner would not be


able to operate if mitigation was required. They especially favor this approach with respect to


existing,-as opposed to new, facilities.
                                                         I         i
                                                         i         ;
       An academic member of the Committee drew an analogy between a stringent test of
                                                         I         i

economic justification for Title VI and the takings doctrine that a property owner is entitled to


compensation if the proposed government action deprives the owner of any. economically viable


use of the property. He recommends that EPA explore the analysis used by the courts in


applying this doctrine for insight into how Title VI environmental justification might be defined.

                                                • •  '      I         i               ;
       Another member of the Committee proposes that economic justification be limited to


instances where economic benefits will be delivered directly to "proximaite" communities, in the


form of jobs or other measurable improvements in the standard of living.


       S»everal members of the Committee believe that the overall social good contributed by the


facility should serve as justification for its disproportionate adverse effects, offering as examples


a permit covering a facility that is necessary to national defense or a permit renewal application


for an existing sewage treatment plant. In the second example, the social good of avoiding


waterbome disease could not be satisfied by facilities at a greater distance from the community


of concern and the disparate impact posed by the facility would therefore be justified. But other


members of the Committee opposed the idea of using either economic benefits or the broader


public good to justify discrimination in any context, arguing that the health of a community


comprised of a protected class should never be sacrificed to'secure more attenuated benefits for


society at large.


       Finally, some members of the-Committee believe that the correct test of acceptable


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justification is a negative one: discrimination is only justified if there is no practical way to

mitigate the disproportionate adverse impact. This test would be stringent --i.e.. a failure to

mitigate is only justified if there is no effective pollution control technology that would reduce

emissions and it is impossible to lower their localized effects through trading regimes.

       Other members of the Committee disagree with this legal interpretation, contending that
                              /
the case law dictates that-state and local governments must be allowed to justify alleged disparate

impacts early in the process, prior to any requirement that they propose —  much less apply —

mitigation.  These members further argue that the Interim Guidance does not reflect this

approach and urge EPA to revisit the issue when it revises the guidance.

       A local government representative on the Committee proposes  that beyond establishing

substantive standards for acceptable justification, EPA should require that state or local agencies

potentially subject to a Title VI complaint must take two additional steps.  First, the agency

should make "findings" that document the steps it took to avoid disparate  adverse impacts,

including alternative siting or other measures considered during the permitting process and,

second, it should be required to certify that all feasible and reasonable  mitigation has been

undertaken. Only after these two steps are accomplished should justification suffice as a defense

to a Title VI complaint.


CONCLUSION


       The  Committee commends EPA for realizing the importance of an ongoing dialogue with

its stakeholders as it struggles to develop a fair and transparent policy for  implementing Title VI.

Each of us is committed to continuing this dialogue, with the Agency and with each other. We



                                            93

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worked hard together, but we recognize that there is much more work to be done. We hope that


EPA will find that this report makes it easier for the Agency to do what we managed to do with

                                                                  !
each other: talk straight, respect differences, and remain dedicated to the importance of fighting


discrimination' in the most effective way possible.
                                            94

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March 1,1999

NOTE RE: APPENDICES

Two kinds of documents are included as appendices to this report; (1) additional views filed by
members of the Committee following its approval of the final report (numbered appendices) and
(2) additional resource materials that are referenced in the body of the report (lettered
appendices). The resource materials, unless indicated otherwise in the final report, have been
included at the suggestion of one or more members because they may prove helpful to those
reviewing the report or further considering the issues  debated by the Committee and do not
necessarily reflect endorsement by the full Committee.

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 APPENDICES

      Title                                                        Page Number

1     Additional Views [Environmental Justice/Academic Representatives]    001

2     Additional Views [Susana Almanza, PODER]                        009

3     Additional Views [The Honorable Rosemary Corbin, Richmond, CA]    010
A    Title VI Committee Charge                                        012

B    List of Committee Members                                       013

C    Workgroup I Membership List and Draft Report on Assessment         016

D    Workgroup II Membership List and Draft Report on Mitigation         031

E    Workgroup III Membership List and Draft Report on a State            049
        and Local Government Template

F    EPA Interim Guidance                                           068

G    Select Steel Decision                                             079

H    Environmental Justice Protocol proposed by Public Interest Law        130
        Center of Philadelphia

I     Materials on CMA Responsible Care Program                        137

J     EPA Office of General Counsel Summary of Other Civil Rights         151
        Precedents

K    Draft Preliminary Report on Incentives Prepared for the NACEPT       203
        Committee on Reinvention

L    NEJAC Public Participation Guidelines                             214

M    ASTM E-50.03 - Standard Guide to the Process of Sustainable         223
        Brownfields Redevelopment

N    NEJAC Paper on Federal and State Legal Authority                   243

                                        95

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                  Report

                   of the

Title VI Implementation Advisory Committee


      Next Steps for EPA, State, and Local
        Environmental Justice Programs

                March!, 1999

            Appendices 1 - 3, A - G

-------
March 1,1999

NOTE RE: APPENDICES

Two kinds of documents are included as appendices to this report: (1) additional views filed by
members of the Committee following its-approval of the final report (numbered appendices) and
(2) additional resource materials that are referenced in the body of the report (lettered
appendices). The resource materials, unless indicated otherwise in the final report, have been
included at the suggestion of one or more members because they may prove helpful to those
reviewing the report or further considering the issues debated by the Committee and do not
necessarily reflect endorsement by the full Committee.

-------
 APPENDICES

      Title                                                         Page Number

1     Additional Views [Environmental Justice/Academic Representatives]     001

2     Additional Views [Susana Almanza, PODER]                         009

3     Additional Views [The Honorable Rosemary Corbin, Richmond, CA]     010
A    Title VI Committee Charge                                        012

B    List of Committee Members                                        013

C    Workgroup I Membership List and Draft Report on Assessment          016

D    Workgroup II Membership List and Draft Report on Mitigation          031

E    Workgroup III Membership List and Draft Report on a State             049
        and Local Government Template

F    EPA Interim Guidance                                            068

G    Select Steel Decision                                              079

H    Environmental Justice Protocol proposed by Public Interest Law         130
        Center of Philadelphia

I     Materials on CMA Responsible Care Program                        137

J     EPA Office of General Counsel Summary of Other Civil Rights          151
        Precedents

K    Draft Preliminary Report  on Incentives Prepared for the NACEPT        203
        Committee on Reinvention

L    NEJAC Public Participation Guidelines                              214

M    ASTM E-50.03 - Standard Guide to the Process of Sustainable          223
        Brownjields Redevelopment
N     NEJAC Paper on Federal and State Legal Authority
243

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    EPA'S TITLE VI IMPLEMENTATION FEDERAL ADVISORY COMMITTEE
           AND THE PERPETUATION OF STRUCTURAL INEQUALITY
                       AND ENVIRONMENTAL INJUSTICE
                    AN ADDENDUM TO THE FINAL REPORT
              OF THE TITLE VI IMPLEMENTATION COMMITTEE
      BY ENVIRONMENTAL JUSTICE AND ACADEMIC REPRESENTATIVES
      We, the undersigned members of the Title VI Implementation Subcommittee of the
NACEPT, file the following addendum to the Report of our subcommittee. We file it to point
out for the record the procedural deficiencies in the federal advisory committee process,
deficiencies which seriously limited the participation of community-based environmental justice
advocates. We also file this report with the hopes that EPA will address the structural issues
identified here when constituting and operating other federal advisory committees.

I.     The Title VI Federal Advisory Committee and the Perpetuation of Structural
      Inequality

      Perhaps ironically, given the subject matter of the Title VI Implementation
Subcommittee's work, its very creation and operation perpetuated the structural inequalities that
are at the heart of communities' Title VI complaints. The structural inequalities of the Title VI
committee were found in almost every aspect of its process and work, from selection of members
to travel to attending meetings to drafting the final report to commenting on that report.

      Committee membership.  As members of the public and the committee pointed out at its
first meeting in May 1998, the Title VI committee as initially constituted had almost no
representation of those most affected by environmental justice problems and those most
experienced in using Title VI in environmental justice struggles: residents of polluted
communities.  After environmental justice advocates made this an issue at the first meeting, three
new committee members were added: two community advocates and a mayor.  Unfortunately,
one of the two community members selected (John Gibson of Mississippi) never participated in
the committee, for unknown reasons, and so the committee had the benefit of input from only
one community advocate who had actually used Title VI, Susana Almanza of Austin, Texas.

       Travel and accommodations. EPA did not seem to realize that its policy of forcing all
committee members to pay for hotels, meals, taxis and in some cases plane flights up front, and
then await reimbursement months later, could easily have precluded community representation.
Many residents of low-income communities do not have credit cards, cannot afford to spend


                                         1   Appendix  1: Additional Views

                                                                    OOOOtfl

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$138 anight (for several nights) on a hotel room, and cannot afford to buy a $300 plane ticket.
Some committee members surmise that this economic barrier may have been what kept John
Gibson of Mississippi from participating: had he showed up at the airport to find he had to
purchase his ticket on the spot (as several committee members, including environmental justice
and state representatives, did), he may well have turned around and gone home. Nor can such
participants afford to loan the EPA hundreds of dollars for months at a time, as all committee
members were required to do. The very structure of the committee's travel and accommodation
process had an impact on community participation.
                                                        i         i
                                                        i         i
       Meeting attendance. Unlike states and industry, many environmental justice advocates do
not have the ability to devote significant amounts of time to non-paid federal advisory committee
work, and thus cannot afford to take the time off to attend each committee meeting. And, unlike
states and industry, community representatives and other environmental justice advocates do not
have entire staffs to delegate work on the committee to, or to send in our stead if we are unable to
attend a particular committee meeting. Examining the attendance at the meetings, it is clear that
environmental justice advocates' lack of proxy staff hurt their representation at the meetings.  A
quick tally of absentees at each meeting, found in Table I, confirms this point: overall, no state
and only one industry member was unrepresented at any meeting. At the same time, at almost
every meeting there were environmental justice activists who were unable to make the meeting, so
at each meeting the environmental justice stakeholders were under-represented.  The sacrifices
and difficulties of serving on a federal advisory committee are eloquently set forth in Susana
Almanza's letter to the committee:
                                       TABLE I:
                           Absentees at Title VIFACA Meetings

              May 1998: Barry McBee (represented by Jody Hennecke)
              July 1998: John Gibson, Tom Goldtooth, Walter Handy, Lillian Kawasaki (2
        environmental justice, 2 local government)
              October 1998: Susana Almanza, Cherae Bishop, John Gibson, Jane Nishida
        (represented by Art Ray), Gerald Torres (2 environmental justice, 1 academic, 1
        industry)
              January 1999: Robert Bullard, John Gibson, Bob Shinn (represented by
        Nancy Milsten), Gerald Torres (1 environmental justice, 2 academic)
              March 1999: Susana Almanza, Robert Bullard, John Gibson, Tom
        Goldtooth, Charles Lee (resigned), Richard Monette, Haywood Turrentine (5
        environmental justice, 1 academic, 1 tribal)
              Overall: 10 environmental justice, 4 academic, 2 local government, 1
        industry, 1 tribal.
                                                                        000002

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      We have taken time away from our local work.  We have taken time away from
      fundraising for our organization that struggles to survive from one year to the next. And
      we have taken time away from our families and friends to participate in this process. We
      do not have the luxury of sending our lawyers and our consultants to participate for us as
      does industry. We do not have the luxury of having engineers and analysts under our
      employ to review and analyze things for us as our counterparts in state government.  We
      have had to do this on our own.1

      The Drafting Group.  At the FACA's Tucson meeting, the contractors worked to appoint a
"Drafting Group" which was charged with working with Rena Steinzor to come up with the final
report. The initial Drafting Group was selected with sector balance in mind, and included Sue
Briggum (industry), Eileen Gauna (academic), Lillian Kawasaki (local government), Richard
Lazarus (academic), Charles Lee (environmental justice), Lang Marsh (state government), Peggy
Shepard (environmental justice), and Richard Monette (tribal).  However, it was announced that
anyone who wished could join the Group, and John Chambers (industry), Dell Perelman
(industry) and Bob Shinn (state government) signed up, skewing the group markedly. When this
was pointed out in our January 1999 meeting by an environmental justice representative, the
contractors scrambled to  convince Susana Almanza to join the Group, which she did. However,
the Drafting Group still was  heavily weighted toward industry and the states.

       The process for commenting on the Draft Report.  The process for commenting on the
Draft Report placed a huge strain on environmental justice representatives on the committee. The
turnaround time for comments on some documents was a short as 24 hours. Community group
representatives, who have full workloads outside of the committee process and unlike other
participants do not get paid for their work on the committee, cannot set aside other work to devote
the significant time necessary to review and comment on draft documents. As Susana Almanza
pointed out, such committee members, unlike state and industry representatives, do not have
staffers to read, analyze and  comment on the documents for them.  Several environmental justice
representative did not have the time to fully review the documents, and this led to Ms. Almanza
abstaining from voting on the final report. Her reasoning is simple, and damning of the
committee process: "On  a very basic level, we have simply not been given enough time to review
and comment on the many drafts of the final report which have been circulated since the
beginning of the year.  While this is reason enough for our abstention, our decision is further
necessitated due to the fact that our resources are so completely and utterly out-matched by those
of industry and state government."2
       1 Letter from Susana Almanza to Ann E. Goode re: Abstention from Vote on Final
 Committee Report, February 28, 1999.
         Id.
                                                                         000003

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II.     The Cost of Missing Community Participation
                                                 '         i         i
       The exclusion of community members means that the Title VI committee did not have the
full range of information before it in our deliberations and in making recommendations to the
EPA. The cost of excluding those most affected, by enviro'-jnental injustice is demonstrated by
considering some of the suggestions which emerged from a 10-hour "listening session" EPA held
in Dallas, Texas in February with environmental justice advocates from around the country.  The
session, designed to give EPA individual input on its civil rights policies in general and, in part,
on the Draft Report of the Title VI Subcommittee, elicited a number of excellent ideas on Title VI
and its implementation. The conversation was wide-ranging, but resulted in a number of specific
recommendations from individuals to the EPA.

       The comments from the  Dallas meeting demonstrate the ideas which would have been
available to the Title VI committee had it had increased community participation; some of these
ideas were independently developed by the committee, but many were not articulated with the
level of sophistication found in the Dallas-meeting. We note that these comments were the result
of a single "listening session" held over two days; had this group held five meetings over a dozen
days, as the Title VI subcommittee did, the ideas could have been fleshed out considerably.

        The following points, in no particular order, are taken from Luke Cole's notes from the
Dallas meeting, and reflect the input of grassroots activists:
                                                                   i                      I
        • Technical assistance grants for communities in the permitting process.
        • Hold permitting process hearings at convenient times.
        • There should  be a thorough testing of the impacts of existing facilities (rather than
 modeling) before renewal or expansion.
        • Moratorium on new facilities in over-burdened  communities.
        • One facility hi one community can have a disproportionate impact; there does not need to
 be a pattern.
        • We need EPA leadership to defend Title VI.
        • No deference to the states.
        • No moving the goal posts: first we had to show proximity, then we had to show
 exposure, then toxicity, then actual health impact.
        • There needs to be an appeal provision for complainants whose complaint is rejected;
 states have six or seven different places in the process to have complaints dismissed, communities
 have no recourse.
         • There should be a presumption that a state is violating Title VI if it does not follow the
 model public participation guidelines.
         • There should be a presumption that a state is violating Title VI if it retaliates against
 community residents or their representatives.
         • There should only be a narrow nexus for mitigation measures.
         • Companies should pay for technical experts to  assist communities during the permitting
 process.
         • There can be no compromise of Title VI as it is a federal civil right.


                                             4                               000004

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       • The Guidance only applies to the Office of Civil Rights, but should apply to the'entire
EPA.
       • The states' call for deference is a rehash of the "states' rights" arguments of the 1950s
and 1960s.  The federal government needs to respond now as it did then, by protecting peoples'
civil rights.
       • The FACA Report has much too much deference to state governments.
       • There is no discussion of procedural inequity in the FACA report; what happens if
someone violates the process?
       • There are no teeth in the FACA report.
       • There is no environmental justice representation on almost all of EPA's Federal
Advisory Committees.
       • The template for the state is all procedural and (floes not require a lessening of the
injustice in our communities.
       • States are not protecting our rights, that's why yve are forced to use Title VI.
       • ECOS is trying to move Title VI toward an environmental model which would allow
some pollution.
       • It is betraying civil rights to equate civil rights with a regulatory mitigation model.
       • Don't devolve Title VI to the states - it is state abuses that caused Title VI to be passed
in the first place.
       • EPA is not currently enforcing federal environmental law against the states, so why
would we expect it to in the civil rights context? EPA is not using the tools they have.
       • Justification only applies to the agency, not the permit applicant.
       • There is nothing in the FACA document on penalties.
       • Loose nexus mitigation is  unacceptable.
       • EPA programs don't work.
       • Supplemental Environmental Projects don't work; Los Angeles car scrapping offered as
an example.
       • The FACA document's tone is deferential toward the states.
       • There is no process for communities to deal with adverse decisions.
       • The FACA document provides incentives to states to do nothing.
       • There are all kinds of ways for states to appeal throughout the Interim Guidance, but
none for community.
       • Public participation must be substantive.
       • There were not enough women on the FACA.
       • Impacts like smells, light,  noise and traffic must be addressed.
       • There is not one size that fits all.
       • Why is Select Steel mentioned in the FACA document, and not Shintech, on which vastly
more resources and time was spent?
       • The structure of the FACA was not representative and excluded community groups with
direct knowledge to Title VI.
       • It was a mistake not to increase the number of community representatives on the FACA.
       • EPA and the target of the complaint can resolve the complaint without the complainant;
this should be redressed.
       • There are seven different steps before funding  to states is cut off- too many hurdles for


                                           5                           000005

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community residents.
       • Reductions in pollution levels in permit renewals can still have a disparate impact.
       • Public participation should be mandatory, and if the states don't do it there should be a
presumption of Title VI violation.
       • There needs to be teeth in the Guidance, such as 1) presumption against the state for not
following public participation guidance or retaliating against complainants; 2) recission of
delegated programs; 3) compliance reviews.
       • Industry is heavily represented on the Science Advisory Board, meaning that clearly
biased people took part in the review of OCR's methodology.
       • The Science Advisory Board recommended consideration of acute impacts, which the
Guidance and Select Steel ignore, and also of noise, odors and accidents.
       • Arizona is working on a methodology for analyzing the risk of accidents.
       • Risk of accidents, traffic (as  a child hazard), light pollution, psychological impact,
stigma, and aesthetic degradation all are impacts.
       • FACA should have brought in Title VI experts to inform its work.
       • Members of the Science Advisory Board get corporate research money.
       • What is baseline health of community?  Run data by diagnoses code to find evidence of
exposure - e.g., chloracne comes from chlorine exposure.
       • Communities want a medical model (preventative) rather than a regulatory model.
       • Mitigation should not involve pollution trading because of the potential environmental
justice impacts.
       • Polluters as part of the Science Advisory Board replicates the flaws found in states.
       • The FACA report does not lay out any impacts outside of health.
       • The FACA report relies on existing EPA programs that do not work.
       • The Interim Guidance doesn't deal with policy or programmatic Title VI complaints.
       • In considering the new vs. renewed permit, look at zoning law and non-conforming use
 precedent, where it must be brought up to full compliance when renewed,
       • Look to Department of Transportation guidance for definition of community;  don't
 reinvent the wheel.
        • Dust, odors, property values, noise, all must be considered impacts.
        • Don't treat new and renewed permits differently.
        • There should be a moratorium on new facilities in areas that are already
 disproportionately impacted.
        • How do Select Steel and Shintech have an impact on EPA process, and why is only Select
 Steel mentioned in the FACA report?
        • The Interim Guidance does  not take into account patterns of discrimination.
        • Justification defeats the purpose of Title VI and should not be allowed.
        • The Guidance should cover enforcement and clean-up.
        • We don't have the ability to effectively engage in the processes; grants from EPA would
 help.
        • Model state plans should cross jurisdictional boundaries and force state agencies to
 address communities' problems as a whole.
        «This process [Dallas meeting] is too late in the game and is similar to the last-minute.
  inclusion of community residents in permitting processes.
                                                                                  000006

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       • Just because most of the complaints are in the permitting context does not mean that
other areas are not important.
       • Participation here [Dallas meeting] reminds participant of industry process - too little,
too late.
       • liven if facility is reducing its emissions, from a community perspective it may still have
a disproportionate impact.
       • Violations by a company override "state of the art" equipment and call into question
EPA's assumptions.
       • Why weren't the comments of the Southwest Network for Environmental and Economic
Justice addressed by the FACA?
       • The model state program gives too much deference to state agencies.
       • Communities are filing Title VI complaints because states aren't doing their job.
       • Regulations are created by industry and don't protect communities.
       • No deference to the states — the feds can't surrender Constitutional rights.
       • Can't incentivize civil rights - can't reward perpetrators.
       • For population bearing the impact, follow exposure plume.
       • No deference to the states.
       • "I want to be in the room when policy makers have their rap session with industry before
a plant is even proposed."
       • Justification should not be based on economics.
       • No justification should be allowed.
       • Lack of enforcement by states means that assumptions underlying "no impact"
determination (like Select Steel) are not real or verifiable.
       • Lack of enforcement is part of disparate impact.
       • We need resources to take part in public participation process - need to be trained in this
to be effective.
       • Need information in appropriate languages.
       • We need problem-solving beyond jurisdictional boundaries of agencies.
       • The terms in the Guidance and the FACA report are not well defined.
       • States aren't going to do anything until EPA forces them to.
       • Language on Title VI compliance could be written in to Performance Partnership
Agreements.
       • Performance Partnership Agreements are not working now.
       • Can't look at either/or in deciding  radius vs.  exposure — there are many different impacts
which need to be looked at in different ways.
       • Need to make explicit what public participation means.

       The Title VI committee did not have the benefit of these issues and perspectives during its
deliberations, and was thus unable to flesh out several excellent suggestions which arose out of
the Dallas meeting. EPA has thus deprived itself of important input from those with the most
knowledge of pollution's impacts on communities - residents of those communities.
                                                                            000007

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HI.    Conclusion

       All of us have taken part in this" federal advisory committee in the hopes that we can help
EPA develop a credible civil rights policy. It is unfortunate that some of the very hurdles to
achieving environmental justice with which we struggle in our communities on a daily basis were
replicated in the committee process, and we hope that EPA addresses these issues in the future.
Signature:
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                                                                          000008

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  Sotithwest Network for Environmental antt Jkcomjuuu
                P.O. Box 7399 • Albuqueniue. New Mexico 87194 • (SQS) 242r04l6 • PAX (505) 24^5609
Richard Moor*. Coordinator
NedHolguIn
SffrtuMartvtt
Ariana:
Rw Accra
  Richmond
Gorton Mar
Daniel Fueaiw
 JVw:
  S*n Antonio
 R«y. R..T. ConUy
  Dallas
 CuiMtaCordero.
  Oohuila, MX
 JMiuhon Whho
 CsdcnaTHouii
 Manny Wao
   Aeora* Pueblo Tribe
   Coihutlt
 Conncn Viteiei
   B^J« CoJifornit
   Chlhuahv»
October 16,1998

Carol Browner, Administrator
U.S. EPA
401M. Street SW
Washington, DC 20460
FAX (202) 260^852

Dear Ms. Browner

We 
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The following aw the Southwest Network's comments and recommendations on the Title VI Interim
Guidance and on the Findings of the Title VI Implementation Advisory Comniittee for your
consideration.                                                     •

Regarding the Title VI Interim Guidance, EPA Should:     "  !~

• Davalop a guidance policy for complaints outside the permitting context (for example, enforcement,
clean-up, etc.), since the Guidance only covers issues involving permitting.

• • Adopt a more flexible definition of "final agency action" Cor beginning the statute of limitations.

• Bar permits from taking effect while a Title VI complaint is pending. EPA must ensure that a facility
is not constructed between the H"?a a complaint is fUed and a final determination is made.

• Include the complainant and affected community ja the investigation and processing of the complaint
as well as in the development of any mitigation measures. The Guidance should clearly set out the
complainant and the affect community's role in the process.                   '

 • Require states to compile relevant demographic Information on permits or ]3rovide demographic
 analyses of their entire pennittlng programs as part of their Title VI obligations.
                                                                     laints or work with
                                                                      used.
» Take no action on pending complaints until the flaws la the interim guidance are addressed and a
final guidance is issued.

* Recognize that "exposure to pollutants" constitutes an impact which can be acted upon under Title VI
of the Civil Rights Act (in other words, the risk of an adverse health effect ?uid not just an actual health
effect should be considered an impact).  .

• Resolve complaints within the time limits specified hi the Guidance once it has been finalized.

• Specify which analytic methods arc to be used for resolving Title VI comrtli
' complainants and the affected community to choose the analytic method to be

* Apply the Guidance to all of EPA, not just the Office of Civil Rights.

 • Remove from the Guidance the language "relevant under permitting program", which may by used to
 limit the facilities considered when determining whether there is disparate impact
    «             •                       •                          i                      :
 • Eliminate the requirement that complainants (or EPA) have to examine the entire universe of facilities
 permitted by an agency to prove a prima facie (on its face) case of disparate impact. In addition to
 placing a heavy burden on the complainant (or EPA), it raischaracterires mis approach as the only way
 of proving disparate impact.

 • Provide technical'assistance grants for groups filing Title VI complaints so that they may hire
 demographers, statisticians uuftcchnical experts.  .

 * Revise the Guidance hi order to incorporate the many suggestions providM by community groups
 and environmental justice advocates.

 • Define the process by which the Guidance will be updated and specify what additional opportunities
 for comment the public will have..
 Eliminate the requirement that a Title VI complaint be refused if it is filed before the decision to grant
 jhe permit or other authorization is made. A complaint filed before a permit; is granted should trigger
 some sort of environmental justice analysis to be completed before the permit is granted. If the

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decision that i* anticipated in the complaint is ultimately made, EPA should begin processing the *
complaint and not require that the complaint be resubmitted.      -      .      .       . '
* Prepare a citizen's guide which explains the procedures for'filing Title VI complaints.

» Specify who will administer particular types of federal funds if funding is revoked as a result of a
Title VI complaint* There is a concern that our communities will suffer if funds such as CDBG are
revoked.                       .                      •  •      .

Regarding Title  VI Implementation Advisory Committee  Findings, EFA  Should:

• Provide grassroots environmental justice organizations that have not-been able to participate on the
committee or attend committee meetings an opportunity to comment on the findings of the committee
before a final report is issued  Grassroots organizations do not have the resources that industry and
states have to participate in processes such as this and should be given an opportunity to voice their •
opinions regarding these issues.                                     .

» Please provide the Southwest Network with a copy of the Draft Findings of the Tide VI
Implementation Advisory Committee so that we may comment on them before a final report is issued.

Lastly, the Southwest Network Indigenous affiliates have had several discussions where concerns
 have been expressed regarding Jhc legal issues and issues of sovereignty associated with the
 applicability of Title VI to Tribes and Indigenous people. We recommend that grassroots Indigenous
 organizations and Tribes be included in any discussions initiated by EPA to craft a consultation process
 on Tide VTs applicability to Tribes.

 In conclusion, we ask that you please forward these comments to the Title VI Implementation
 Advisory Committee and inform us as to how these comments will be included in the guidance policy.

 Thank you for. your anticipated consideration. We look forward to hearing from you within the next
 two weeks. If you have any questions concerning this matter or would like more information
 concerning our issues, please do not hesitate to call our regional office at (505) 242-0416.
Rani Alvarez., Chair   U
EPA Accountability Cai
                                               Rose Augustine, Chair
                                               EPA Accountability Campaign
                      listrative Coordinator
 SW" Network-Regional Office
                                              Richard Moore, Coordinator
                                              SW Network Regional Office
  Southwest Network TI^S, affiliate and  associate  organizations slgnees:

  Action for Grassroots Empowerment & Neighborhood Development Alternatives:  AGENDA (CA)
  Alianza Jndlgena Sin Fronteras (AZ))
  Asian Immigrant Women Advocates: AIWA (CA)             ^
  California Indians for Cultural & Environmental Protection: CICEP (CA)
  Casa de .Colores Resource Center (TX)
  Chinese ProarcsslvB Association: CPA (CA)
  Citizens for Improved Community-Police Relations.: C3CPD (AZ)
  Colorado River Native Nations Alliance (CA)
  Cfcrnadres (AZ)

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 Comisidn de. Acci<5n Rcvoluclonaria de Latinos Organizados. Papa Siempre:  CARLOS (CA)
 ComlttS Organizacfon dc Padres dc Azdan (AZ)           .
 Committee for Environmental Justice Action: CEIA (TX)
 Communities at Risk Project of CRLA: CARP (CA)
 Concerned Citizens of South Central Los Angeles (CA)
 Concerned Citizens of Sunland Part (NM)
 Cultural Liberation Coalition: CLC (CA)
 Denver Neighbors for a Toxic Free Community (CO)
 El Pueblo Farm Aiie Y Agua Llmpia (CA)
 Environmental Health Coalition: EHC (CA)
 Escweli do la Raza Unida (CA)
 Fuerza XJnida (TX)
 Hondo Empowerment Committee'. HEC (TX)
 Guardians of the Grand Canyon, Havasupni Tribe (AZ)
 Korean Immigrant Woricos Advocates: KIWA (CA)
 La Sierra Foundation (CO)
 Labor/Community Strategy Center (CA)
 Laguna-Acoma Coalition for a Safe Envirorax»nt(NM)
 Madias del Este de Los Aneeles - Santa Isabel: MELA-SI (CA)
 Movfanlento Estudiantil Oucaaos de Aztlan, University of New Mexico: MEChA-UNM (NM)
 New Start for a Better Environment (TX)
 Nindakin - People of Color-fen- Envlromnental Justice (CA)
 Organizacfon en California deUderesCampeshifls
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        People Organized in Defense of

February 28,1999
Ann E. Goode, Director
Office of Civil Rights (1201)
U.S. Environmental Protection
401M Street, S.W.
Washington, DC 20460
                                           and her
                                                      7871
      Re:  Abstention from Vote on Final  Committee Report and Request that
PODER's Reasons for Abstaining as Outlined in this Document be Reflected in the
Final Report of the Title VI Implementation. Advisory Committee


Dear Ms. Goodti

PODER abstains from any vote on th« final report of the Title VI  lmpl«m«nution
Advisory Committee On «-v«iy basic level/ weh;*v« simply not b«en given enough
time to r*vi«w «nd comment on thf many  drafts ol the final report which have
bwn drcuUted since th* beginning ol the year. While this is reason enough for our
abstention, our decision is further necessiUtvd due to the fact thai our resources «re
so completely and utterly out-matched by those of industry and state government.

As noted  in our 2/12/99 comment* on the 1/4/99 Draft of the Report  of the
NACEFT  Title  VI -Implementation  Advisory  Com;mlttee, this has been a  very
difficult process for our organisation.  Our city is growing at a r«nark*We «at« which
has really created an overwhelming  situation in terms o| the local work  of our
organization- Things are only made worse by the {act that our city officials and th«
state and federal agencies which  have jurisdiction  over the  issues on which we
work only t$*m to make our struggle more difficult.
W* have thk«n time away from our local work.  Wo have fcOten time away from
fundraising for oar organization that struggles to survive from one year to the next.
And we hftve taken time away from our families and Mends to participate in this
procetw.  We do not have the luxury of sending our lawyers and our consultants to
participate for us as does industry. We do not have the luxury of hnvfng engin««rs
and  analysts  under  our employ lo review and analyze things for us as our
counterparts in state government. We have had to do this on our own.
            fff

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 Although  we did provide comments on the 1/4/ 99 Draft Committee Report our
 I^Z^r!^1"0013?16^   ^ doc^™< ™ ww asked to revkw was very
 Itngthy (about 75 pases) and was very difficult to understand.  This was « document
 pnpaNdnot tyoiir^md btrtbytJw hand of the "expert*" you have hixed/aneuC
 have prepared a document written in i language understandable to rfhet "exwrts"
 and  not  n^M^r  to the  people  wlo  will  be  moat  imputed  3^,
 recommwtdahor* o* this committee. Somewhat troubling is the fact that the report
 present* th» draftm' impre59ioi« of ftht d.Hberaticms ol5u the  woddng «U?of
 which only those of nutigation working group an familiar to tis. turth«r, tt w« not
 ponibi. far U5 to complete our revitw of the -report because a wviwd Son ol the
 document  P«P«re comments on  -The
                 Programs," our counterparts in stat* government
 actually submitt.d their own iemphi. for a model State
        v.  Thus, H is our {ear that this section of the wport will be particularly
        hi fnvor of mdustry .nd «tate govermnent.  WhiliOie gmmlte TWe  VI
Techn c*l meeting held in Dallas, Tex« last week was . good fir*t step 5w*rd
inclusion   of  grassroots  groups,  they  too  were  reviewing   ihs  Title   VI
implementation  Advisory  Committee  import  tit  a  disadvantage. Cw»sro«>l»
environmental justice organizations n»«d resources to review  such
documents as a group.
A final not^ on process. Numnrous grwsroots environmental justice oirganizations
have .submitted  comment to this committee at various  stages of ithe  process.
Specifically, there are comments which the Southwwt Network for Environmental
and Economic Janice (SNEEJ) submitted which do  nol s«rm to b. adequately
reflected in the report. To ignore tht comment* of these types of organizations is
not ju*t irresponsible but a show of utter disrespect to these communities.

While we do want to express our sincere gratitude for allowing us to s«rve on this
cornmitt.e, we feel that the process which  has been  undertaken thus far is
fundamentally flawed  for th* t«won« outlin«a .bov*.  Because we cannot in eo-od
COflMience vot« to approv* thi* report, we tk*r*for* choosr to

Sincwely
  J
+^i**^4il
\g/
Susana Almanta  -FODE1R
M«mbor, NACEPT Title VI Implemwniation Advisory Committee
                                                       !
cc ElUot Laws, Chair/ Title VI Implementation  Advisory Committee
    May wood Turr«n1lne, Chair/ National Environmental Justice Advisory
     Committee

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Carol Borvvnar, Administrator U9 EPA
Members of NACEPT Title VI Implementation Advisory Commit!**
Richard Moore, SNEEJ
Yorn Coldtooth, Indigenous JEnvironmenWl N«twork
Connie Tucker, Southern Orgnnlrin

-------

-------
                                                                         PCM-
      People _-_	
March 10, 1999
in Defense of Earth and her Resources
Ann E. Goode, Director
Office of Civil Rights (1201)
US Environmental Protection Agency
401 M Street, S.W.
Washington, DC 20460

       Re: Additional Comments for Final Report of the Title VI Implementation Advisory
       Committee to include in appendices

 Dear Ms. Goode:

 PODER is submitting two additional comments to be added to the appendices of the Title
 VI Implementation Committee final report.

 First, there is great concern that demographics for communities bringing Title VI
 complaints be fair and accurate. There are many ways that the racial demographics of an
. area can be characterized and it is crucial that the community be involved in the process of
 .analyzing the demographics of their own area.

 Second, the Select Steel decision revealed a lack of due process for community members
 bringing a Title VI complaint.  Citizens were not given, an opportunity to review or rebut
 evidence of Civil Rights in their decision depended largely on information and testimony
 furnished by the state agency, which the citizens had no chance to review or comment'on.

 Both the above issues will have a large impact on how our Title VI complaints are resolved.
 I have discussed these issues with others representing Title VI communities who agree they
 are important points to be raised.

 There must be a total commitment by the Office of Civil Rights US EPA to environmental
 justice.

 Sincerely
 Susana Almanza- PODER
 Member, NACEPT Title VI Implementation Advisory Committee
                                        Appendix 2: Additional Views

                                                                 000009
  SS

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      MAYOR
Rosemary M. Corbtn
            Comments on the Report of the Title VI Implementation Advisory Committee
            I want to thank the EPA for their commitment to Environmental Justice, and to working
     with' other levels of government so that we create a national standard which b appropriate for all.

            Every member of the Title VI FACA invested enormous thought, energy, and time into
     the process, and although-many discussions along the way were frustrating the final discussion
     seemed to reflect increased understanding by all members of each others viewpoints.

            I would like to submit a few specific clarification which I do not think contradict the
     report:

            On page 8, add at the end of the first full paragraph.  "Local Governments cannot be asked
     to do what they have no authority to dov but they do have the authority to monitor and deny
     permits."

            In nrder to carry out the intent stated in the introduction to "Step One.,.." on page 16, add
     the following paragraph on page 17 after the first full paragraph 'The E'PA must develop on going
     consultative relationships with local governments in order to understand the impacts of EPA's
     Title VI Guidelines.11

            On page 19 add "and create jobs" after the first full paragraph.

            On page 25 under "Two paths to Equity" at the  end of the first paragraph to add : "but
     may bo improved with increased enforcement of existing regulations."

            On page 30 at the end of the first flill paragraph add  "it la important for permitting
     agencies to constantly assure themselves and the community that their permitting procedure are
     identical in all neighborhoods.*

            Identifying communities of concern by labeling them in a public way, or by drawing circles
     around facilities, may hurt the communities we are trying to  help by stigmatizing them. This
     concerns arose regarding Brownfields redevelopment. Brownfields are properties which have
     been abandoned and shunned by developers because they are either contaminated or are perceived
     to possibly b< contaminated.  We don't want to have to add a new definition of a Brownfield as an


                                                    Appendix 3: Additional Views.
2600 Barrett Ave. P.O. Box 4046 Richmond Califorr                           0000^10

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area described as a "community of concern" under Title VI. It is my understanding that no
Title VI complaints .have been filed regatding Brownfields, tut there is a Teal fear that if we do not
define and respond to our communities of concern sensitively, we could chill economic
development where we need it the most. Also the assumption that Brownfields redevelopment
necessarily brings pollution is wrong. The return of abandoned inner city property to productive
and appropriate reuse should be the goal of everyone.

       We must be careful about recommending that economics should play a part in
environmental decisions. That is a two edged sword. If could be used to deny a permit because of
potential loss of property values, or U could be used to grant a permit becausft of the potential for
creating jobs. If we stay focused on environmental protection, the principals of environmental
justice and sustainable development should be met.

       The suggestion that land use decisions might be shifted away ftom local government may
be based on a bad experience that none of us would justify, but in the long run the farther you get
away from the local community, the more likely you are to experience dumping on communities
that the decision makers don't live near.
                                                          i
       We at the local level understand why the Federal Government does not want Federal Tax
dollars used for programs that discriminate, and local governments need to have pro-active
programs to insure that the principals of environmental justice are practiced  not only because it is
right, but also because local governments are subject to Title 6 claims. We look the EPA lo give
us credit for our programs in their review of claims. We look forward to working with the othw
levels of government to eliminate the claims that have been filed, and to ensure that there is no
credible basis for new claims.
                                                                         000011

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            Title VI Implementation Advisory Committee under the
     National Advisory Council for Environmental Policy and Technology

Background
       Title VI of the Civil Rights Act of 1964 (Title VI) prohibits recipients of federal financial
assistance from discriminating on the basis of race, color, or national origin in their programs or
activities.  Since 1993, the U.S. Environmental Protection Agency (EPA) has received an
increasing number of Title VI complaints that allege discriminatory effects due to the issuance of
pollution control permits by state and local governmental agencies that receive EPA funding.

       On February 5, 1998, EPA's Office of Civil Rights (OCR) released interim guidance
defining key parameters for the Agency's processing of Title VI complaints.  EPA is using the
interim guidance to process its existing backlog of cases.  However, EPA is accepting public
comment on the guidance and plans to issue final guidance after reviewing the comments.

       Apart from the process for finalizing the interim guidance, EPA recognizes the need to
work with key stakeholders in the development of implementation tools and analytic techniques to
evaluate potential Title VI concerns. For example, to assess pending Title VI complaints, EPA is
developing demographic analysis techniques, enhanced methods for assessing impacts, and other
analytic tools.  Similarly, some states, local governments, and industry will desire tools to assess
potential Title VI concerns and, where they exist, seek avenues to mitigate them before they
become the subject of complaints.
Committee Charge
       The purpose of the Title VI Implementation Advisory Committee is to review and
evaluate existing techniques that may be used by EPA funding recipients to operate environmental
permitting programs in compliance with Title VI.  Techniques may include tools for assessing
potential Title VT concerns and mitigating impacts where they occur.  The Committee will identify
existing techniques that can be used successfully as well as gaps in the availability of analytic
methods or other tools that need to be addressed.  The Committee will also identify areas where
technical assistance, education, and training may be needed to ensure  effective implementation of
Title VI programs.

       While finalization of EPA's Title VI interim guidance is not included in the committee
charge, EPA may consider revision or supplementation to the interim guidance if necessary to
fulfill the Committee's recommendations regarding implementation tools and techniques.

       The Committee will provide recommendations to the EPA Administrator and Deputy
Administrator within six months of the first meeting.  The Committee will be staffed by EPA
personnel from the Office of Civil Rights, the Office of Cooperative Environmental Management,
and several program offices.  Committee members will include state environmental
commissioners, as well as representatives from industry, the academic community, tribal and
indigenous interests, and grassroots environmental and other non-governmental  organizations.
                                                                     April 14, 1998

                                             Appendix A: Committee Charge

                                                                       000012

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             Members of the Title VI Implementation Advisory Committee

Mr. Elliott Laws, Chair
Title VI Implementation Advisory Committee
Pattern Boggs
Washington D.C.

Mrs. Sue Briggum, Director
Government and Environmental Affairs
Waste Management
Washington D.C.

Dr. Robert Billiard
Environmental Justice Resource Center
Clark Atlanta University
Atlanta, Georgia

Mrs. Cherae Bishop, Director
Energy and Natural Resources
National Association of Manufacturers
Washington D.C.

Mr. John Chambers
Brownfields Business Information Network
[at Arent, Fox, Kitner, Plotkin and Kahn]
Washington D.C.

Mr. Luke Cole
Center on Race, Poverty and the Environment
California Rural Legal Assistance Foundation
San Francisco, California

Mrs. Alexandra Dunn, Counsel
Chemical Manufacturers Association
Arlington, Virginia [Resigned from the Committee]

Mr. Dell Perelman, Senior Assistant General Counsel
Chemical Manufacturers Association
Arlington, Virginia  [Replaced Mrs. Dunn on Committee]

Ms. Eileen Gauna, Professor
 Southwestern Law School
Los Angeles,  California
                                              Appendix B: List of Committee Members
                                                                     000013

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         Members of the Title VI Implementation Advisory Committee (CONT.)

Mr. Tom Goldtooth
Indigenous Environmental Network
Bemidji, Minnesota

Dr. Walter Handy, Jr., Assistant Commissioner
Cincinnati Department of Health
Cincinnati, Ohio

Mr. Russell Harding, Director
Michigan Department of Environmental Quality
Lansing, Michigan
                                                     I         i
Mrs. Lillian Kawasaki, General Manager
Environmental Affairs Department
City of Los Angeles
Los Angeles, California

Mr. Richard Lazarus, Professor
Georgetown University Law Center
Washington D.C.
                                                     j
                                                     j         '
Mr. Charles Lee, Director of Environmental Justice
United Church of Christ
New York, New York

Mr. Barry McBee, Commissioner
Texas Natural Resource and Conservation Commission
Austin, Texas    [Resigned from Committee]

Mrs. Jody Henneke, Director
Office of Public Assistance
Texas Natural Resources and Conservation Commission
Austin, Texas  [Replaced Mr. McBee on Committee]

Mr. Langdon Marsh, Director
Oregon Department of Environmental Quality
Portland, Oregon

Mr. Richard Monette, Professor
University of Wisconsin Law School
Madison, Wisconsin
                                                                       000014

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         Members of the Title VI Implementation Advisory Committee (CONT.)

Mr. Richard Moore, Coordinator
Southwest Network for Environmental and Economic Justice
Albuquerque, New Mexico

Dr. Jane T. Nishida, Secretary
Maryland Department of the Environment
Baltimore, Maryland

Mrs. Peggy Shepard, Executive Director
West Harlem Environmental Action, Inc.
New York, New York

Mr. Robert Shinn, Commissioner
New Jersey Department of Environmental Protection
Trenton, New Jersey

Mr. Gerald Torres, Associate Dean for Academic Affairs
University of Texas Law School
Austin, Texas

Mr. Haywood Turrentine
Laborers' District Council of Education and Training Trust Fund
Exton, Pennsylvania

The Honorable Rosemary Corbin, Mayor
City of Richmond, California

Mrs. Susana Almanza, Director
People Organized in Defense of the Earth and her Resources
Austin,  Texas

 Mr. John Gibson, President
 African-Americans for Environmental Justice
 Brooksville, Mississippi
                                                                       000015

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National Advisory Council for Environmental
           Policy and Technology
           Federal Advisory Committee
                       Appendix C: Workgroup
                       List and Draft Report
  I Membership
on Assessment
000016

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WORKGROUP I: ASSESSMENT
          REPORT
         October 20,1998
                               ooooir

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              Title VI Implementation Advisory Committee; Workgroup T
Mr. Luke Cole
Center on Race, Poverty and the Environment
California Rural Legal Assistance Foundation
San Francisco, California

The Honorable Rosemary Corbin, Mayor
City of Richmond, California

Mr. Russell Harding, Director
Michigan Department of Environmental Quality
Lansing, Michigan

Mr. Charles Lee, Director of Environmental Justice
United Church of Christ
New York, New York

Mr. Richard Monette, Professor
University of Wisconsin Law School
Madison, Wisconsin

Dr. Jane T. Nishida, Secretary
Maryland Department of the Environment
Baltimore, Maryland

Mr. Dell Perelman, Senior Assistant General Counsel
Chemical Manufacturers Association
Arlington, Virginia

Mr. Haywood Turrentine
Laborers' District Council of Education and Training Trust Fund
Exton, Pennsylvania
                                                                       00001$

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 (OCTOBER 19,1998)
                  REPORT OF WORKGROUP I: ASSESSMENT

I. INTRODUCTION

Workgroup I had two overarching principles that guided its approach to developing a set of
recommendations regarding an assessment process for dealing with potential Title VI
situations.

First, it is in everyone's (all stakeholders1)1 interest to have an accessible, predictable, precise,
and transparent system for addressing situations with potential Title VI complaints. Clarity
and-uniformity on assessment frameworks, definitions, protocols, and thresholds are critical
to making this possible. Second, it is important to focus on a prospective strategy; the
committee strongly urges  the development of a proactive program that would identify and
avoid potential impacts and thus prevent or significantly lessen the likelihood of Title VI
complaints.

Assessment questions play a key role in making these two principles a reality for state and
local environmental permitting agencies.2 The logic for mis is compelling; the more we are
 able to successfully identify a potential hotspot, and determine and implement the proper
 form of intervention, the less likely a potential hotspot will develop into a situation where
 complaints would be filed or litigation required.

 In the committee's opinion, questions of assessment are critical for two significant reasons.
 First they form the basis for basic understandings and working definitions of what constitutes
 a protected group, an impacted community and disparate impact.  Specifically, the
 Committee has developed a set of factors or criteria3 for determining the applicability of Title
 VI to a proposed facility  or the renewal of a permit for an existing facility.  In addition, a
 second product is a set of indicators of when a community meets the profile of a potentially
 "impacted community."  This product offers programmatic and administrative guidance for
 developing .and maintaining a coherent outreach and networking effort along with an
 effective early warning system for the state and local permitting agencies.4  Second,
 assessment is an important element of any operational program because it provides the
 thresholds and benchmarks for triggering certain types of actions.
  1  in the Title VI context,  most prominent stakeholders include but are  not
  limited to affected communities,  business,  government (federal,  state,  local),
  and others.
  an  o.
  2  The committee wishes  to emphasize that similar principles apply to
  regulatory programs as well  as programs  of potential applicant  groups, eiuher
  individual corporations,  trade associations or others.
  3  Get definition of  factor, criteria,  and  standard.   (Other words are
  principles, measure,                                                        „-,,=„«
  «  We need some language on purpose of a  set of factors .   We also need language
  on  purpose of  having a  set of indicators for profile of an impacted  community.
                                                                          •000019

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 The Committee has developed a framework that makes use of two approaches -- prospective
 and retrospective - to help all stakeholders assess potential Title VI cases.  The prospective
 approach is designed to be used by permitting agencies and permit applicants before a project
 is permitted, to identify and avoid potential Title VI problems. The retrospective approach is
 designed to help guide EPA in its assessment of actual Title VI complaints should such
 complaints be filed.

 The prospective approach involves two levels of assessment or screening, the general
 screening for potential communities of concern based on demographics aind overall
 environmental burden, and a site-specific screening of such communities for actual impact.
 These levels of assessment are discussed in more detail in Section V, below.

 The prospective approach uses broader definitions and casts a wider net than the retrospective
 approach, with the idea that "an ounce of prevention is worth a pound of cure."  By broadly
 defining concepts such as "community" and "impact" on the front end, the goal is to identify,
 examine, mitigate and avoid potential impacts to protected classes which might otherwise
 develop into a Title VI complaint Because the prospective approach is undertaken by
 permitting agencies (and permit applicants), the definitions used in it are different from those
 narrower definitions that might be used in the retrospective approach once a case has entered
 legal review.
                                          '!               I         i
 II.  BASIC PRINCIPLES FOR UNDERSTANDING THE ASSESSMENT OF
 POTENTIAL COMMUNITIES OF CONCERN
             i '!                    '         •        ,       '         I
 GENERAL: At each level of assessment (of the community, and of the actual and potential
 impacts) it is important to recognize that there is not a "one size fits all" approach that will
 work m every one of the myriad of situations across the country.  Thus, in defining
 "community" and "impacts," and assessing them, EPA should provide several examples to
 offer guidance to  all stakeholders as to how these terms might be used in the assessment
 process.

 The definition and assessment of communities and impacts is both a quantitative and
 qualitative exercise; each approach is  important, and each has limitations. The definition
 should be site specific.
                                                         I
 In the prospective assessment, it is critical and is in the interests of all stakeholders to
 recognize and respond to the interests of the affected community as early as possible, before
 stakeholders (including community residents) become hardened into rigid positions.
                                                                  I
 IMPACT. Impacts must be discrete, identifiable and traceable to a specific permitting action.
 It is  important in some situations to look at cumulative impacts across different media (air
 water, etc.).

 There was consensus on the committee that the following impacts, if they are under the
jurisdiction of the permitting agency, should be examined in the prospective approach; a	
 of the committee felt that the impacts were cognizable if they were caused by a permitting
 agency whether or not they were within the jurisdiction of that agency. This report does not

                                                                          000020

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purport to address the threshold question of law whether permitting agencies are responsible
for impacts outside their jurisdiction which may result from their actions. Our doing so,
however, should in no way be seen as.reflecting workgroup consensus on that legal issue.
The workgroup simply decided to postpone consideration of that difficult issue and to move
on to the related policy issues so as to avoid the difficulty of the former preventing us from
providing EPA with possibly Valuable input regarding the latter. Impacts to be examined in
the prospective approach may include the following:

       Human health impacts caused by an agency's action, including actual illness or
       injury, risk of illness. Psychological and mental health impacts were agreed to by
       [Luke, Charles, Rosemary, Hay wood and Richard]; not agreed to by [Russ, Dell and
       Art].

       Environmental impacts, including air, water, land, noise, traffic, aesthetics, odor and
       blight.

       Direct or indirect destruction or disruption of natural resources, including species.

       Impacts  to cultural, religious, spiritual and archaeological resources.

       [to be discussed:] Cumulative, multiple and synergistic impacts.

 DISPARATE IMPACT: Understanding of the concept of disparate impact requires the
 application of common sense that is based upon the appreciation and direct knowledge of the
 local conditions of the affected community. Disparate impact almost never occurs in
 isolation; therefore,  it is necessary to carry out a holistic analysis.  As well as environmental
 impacts, disparate impact can refer to the exclusion of a community from the permitting
 process, from the decision-making process, or both.  The process for measuring disparate
 impact should be predictable, precise, inclusive, transparent and accessible. The committee
 has defined "disparate impact" in the glossary.

 ASSESSMENT TOOLS. A variety of tools should be developed that would serve to
 examine different situations that might arise.  The tools for measurement might include the
 use of geographic information systems, community impa.ct analysis, proximity and exposure
 modeling, or a combination of all of these and other tools. The two prevailing methods now
 being used by EPA  and a number of communities for measuring disparate impact are
 proximity analysis and exposure modeling. Regardless of which method is used, as much
 real data (as opposed to projections, estimations or modeling) as possible should be used.
 The tools must be accessible to potential complainants as well as to industry seeking permits
 and to state and local government regulators; the measurement analysis process should meet
 the needs of permitting agencies, applicants and affected communities. In designing the
 analysis, it is important to have appropriate and effective approaches to involving the
 community up front. The early inclusion of the community in the measurement analysis will
 enhance the accuracy and predictability of the.process.

 Further discussion is necessary to determine how best to include the affected community (not
 to the exclusion of  other stakeholders).

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The assessment tools ~ for measuring disparate impacts and cumulative impacts, among '
others ~ should be based on sound, scientifically valid methodology, developed through a
peer reviewed process meaningfully involving and accessible to all stakeholders. The
scientific peer review process for measurement analysis should be balanced and objective.
                  :                        i              i          !
III. FACTORS FOR IDENTIFYING "COMMUNITIES OF CONCEljlN"

There are two basic factors which come into play when identifying communities of concern
for purposes of determining potential applicability to Title VI, i.e., 1. Demographic factor,
and 2. Environmental impact (or burden) factor.

A.     Demographic Factor

The first  step is to identify minority communities for which Title VI concerns might arise.
Several approaches have been suggested for how to do this.

       (1) The minority percentage of the population within the area affected by the facility
       exceeds the average minority percentage within the reference area, in most cases the
       jurisdiction of the permitting agency.

       (2) The minority percentage of the population is 25% or more greater than the average
       minority population, within reference area, again the jurisdiction of the permitting
       agency.  (I.e., if the state average minority population is iO%, than any community
       with a minority representation of 12.5% or greater would  be a "community of
       concern.")

       (3) Does CEQ call for a different standard?

       Discuss relative strong and weak points of the different above approaches?

B.     Environmental Impact/Burden Factor

Second, the permitting agency would determine whether any of the communities identified in
#1 above are currently under a substantial environmental burden.  (For the prospective
approach, this burden need not meet a standard for disparate impact, should one be
established. Such a standard would be important for the retrospective evaluation.) Again,
some standards for environmental burden have been suggested.
                                          I              i
                                          i              i
Language from CEQ Environmental Justice Guidance:
Disproportionately High and Adverse Human Health Effects: When determining whether
human health effects are disproportionately high and adverse, agencies are to consider the
following three factors to the extent practicable:

       Whether the health effects, which may be measured in risks and rates, are significant
       (as employed by NEPA), or above generally accepted norms. Adverse health effects
       may include bodily impairment, infirmity, illness, or death; and
                                                                            000022

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      Whether the risk or rate of hazard exposure to an environmental hazards by a
      protected population is significant (as employed by NEPA) and appreciably exceeds
      or is likely to appreciably exceed the risk or rate to the general population or other
      appropriate comparison group; and

      Whether health effects occur in a protected population affected by cumulative or
      multiple adverse exposure from environmental hazards.

Disproportionately High and Adverse Environmental Effects: When determining whether
environmental effects are disproportionately high and adverse, agencies are to consider the
following three factors to the extent practicable:

      Whether there is or will be an impact on the natural or physical environment that
      significantly (as employed by NEP A) and adversely affects a protect group. Such
      effects may include ecological, cultural, human health, economic or social impacts on
      protected communities when those impacts-are interrelated to impacts on the natural
      or physical environment; and

       Whether environmental effects are significant (as employed by NEP A) and are or
      may be having an adverse impact on protected populations that exceeds or is likely to
       appreciably exceed those of the appropriate reference group;  and

       Whether the environmental effects occur or would occur in a protected community
       affected by cumulative or multiple adverse exposure from environmental hazards.

 It is the combination of these two factors that will lead to a determination of a community of
 concern.

 The workgroup recommends the implementation of early intervention strategies, including
 proactive outreach to communities of concern regarding any proposed new facility or permit
 renewal for existing facilities. The purpose of the outreach will be to address any community
 concerns, whether or not they rise to the level of disparate impact or other legally determined
 issues.  Such outreach/involvement strategies will require permitting agency initiatives and
 support to permittees.
 IV. INDICATORS WHEN A COMMUNITY MEETS PROFILE OF POTENTIALLY
 IMPACTED COMMUNITY

 Introductory explanation


 List of examples


 The purpose of this set of indicators is to provide a useful diagnostic tool for state and local
 permitting agencies, [sentence needed] In another words, this set of indicators is not meant
                                                                             000023

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to establish a legal test of whether or not a community situation violates Title VI. Rather it is
meant to help the permitting agency more effectively realize when a potential Title VI
situation may exist and thus fashion an effective early intervention.

This list of potentially cognizable impacts  will then become the list of indicators of when a
community meets the profile of a potentially "impacted community." And. thus offer
programmatic and administrative guidance for developing and maintaining a coherent
outreach and networking effort along with an effective early warning system for the states.

V. OPERATIONALIZING THE ASSESSMENT PROCESS
                                                         i         i                       '
 •                                                        '         '                       '
In order to operationalize the above definitions and understandings, we also need to develop
an administrative/programmatic framework into which these can become operationalized.
We need to step back and define the purpose for which we are developing these definitions
and fit the definitions into an administrative/programmatic framework that is compatible with
the principles, needs and constraints of state, federal or other environmental justice programs.
                                                         i  . ,      j
The group agreed to develop a framework  that makes use of two  assessment approaches, one
prospective and the other retrospective. The committee makes a  distinction between
administrative/programmatic (prospective) vs. legal (retrospective) purposes. The committee
makes a distinction in its approaches between the prospective approach — to be used by
permitting agencies and permit applicants  -- and the retrospective approach, to be used by
EPA if a Title VI complaint is filed.  The goal of the prospective approach is to obviate the
need for Title VI complaints, by broadly defining potential communities of concern,
discovering potential problems, and addressing them in the context of the permitting process
so that complaints are not filed.
                                                         i •        i
                                          i               i     '
The prospective approach consists of two steps, the first a general screen based on
community demographics and overall environmental burden, and the second a screen based
on actual impact to a community.

A. Prospective Approach

       1. Tier 1: General Screening. The purpose of the general screening is to identify
environmentally overburdened minority areas (as well as other environmental justice areas).
This is an ongoing process of data collection and maintenance—both quantitative (e.g., census
data) and qualitative (e.g. "cursory" community profiles)--for purposes of having a full
understanding of the terrain and screening for identifying areas which warrant further
examination.

Tier 1 refers to  the pre-permitting process. The general screening refers to an on-going
process of quantitative and qualitative data collectionfor the purposes of having a full
understanding of the terrain and screening for identifying areas  which warrant further
examination. While the committee does not advocate a mandatory process, it does note that
such a screening process must be in place  in order to coherently address communities with
potential Title VI complaints. Such an ongoing process is critical for developing a coherent
methodology could be developed for community outreach and networking. The general
                                                                              000024

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screening should function as an early warning system. Finally, it is useful for strategic   *
planning, deployment of staff and resource"

       Ob j ectives/Activities:

* Develop basic demographic information system and accumulate information on areas with
high environmental burdens or other potential problems.
* Use information of education of key staff and integration into day to day activities (as
outreach and early warning system).
* Develop statewide Geographic Information System (GIS) capacity.
* Develop standard set of community profiles.
* Develop a coherent methodology for community outreach and networking.

       2.  Tier 2: Site Specific Intervention.

Tier 2 refers to in-depth site-specific assessment for the purposes of designing and
implementing interventions.  This involves in-depth site-specific assessment for purposes of
designing and implementing interventions

          a.  Objectives/Activities:

Outreach/relationship building
Site visits/community meetings/hearings
Detailed community profiles
Ongoing monitoring
Dispute resolution and mediation activities
Pilot projects and other interventions
Proximity and exposure modeling
Cumulative impact analysis
Early or special notification procedures

           b.  Assessment parameters

           + proposed by Charles Lee: (See Assessment parameters for Tier 1 and add the
 following criteria.)
    Imminent endangerment to public health and environment, formal complaint from
    community, or another event deemed worthy of triggering such intervention.

           + proposed by Russell Harding:
    The action will cause an increase over the actual documented emissions and discharges
    over the average for the past three years across all media.

    There are documented adverse health impacts in the minority pollution from a substance
    included in the emission or discharge authorized by the action.
 B. Retrospective Approach:  Legal Review
000025

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The retrospective approach refers to an in-depth, scientifically peer-reviewed, comparative
assessment for purposes of making a determination of violation of Title VI and/or EPA's
regulations implementing Title VI.
                                                         i
   1. Objectives/Activities
   *  To provide EPA a process for evaluating and deciding Title VI complaints filed with the
agency.
   *  By providing such input, making the complaint resolution process & predictable, timely
and inclusive process for all involved parties.

   2. Assessment parameters

   Disproportionate impact: A prima facie case of disproportionate impact can be made by
demonstrating that the disparity between the affected community and the reference
population is three standard deviations of greater. A presumption of disproportionate impact
can be established by demonstrating that me disparity is greater than two standard deviations.
VI.   OTHER CONSIDERATIONS (To Be Written)

This section will address some of the following issues

Summary of Proposed Questions For Further Discussion (From Minutes)

Should health based (or other stressors) indicators such as those proposed by Jerome Baiter
be used as parameters? (There are both policy and technical aspects of this question.)
How does one deal sensitively with concerns about a community being stigmatized if it has
designation as a potential environmental justice area?
                                                                  I
Regarding Tier 1: Should health-based (or other stressors) indicators such as those proposed
by Jerome Baiter be used as parameters? (There are both policy and technical aspects of this
question.) How does one deal sensitively with concerns about a community being stigmatized
if it has designation as a potential environmental justice area?

Regarding Tier 3: What constitutes harm and to what extent does this figure in a
determination of disparate impact? Is a proximity and exposure analysis sufficient to
establish some standard of harm?
 Regarding Tiers 1-3: What assessment parameters should be used? What
for conducting Tier 1 and 2?

 In the area of definitions:
are the principles
 General questions:  What are these definitions to be used for? What constitutes a legal
 determination of a violation of the law?
                                                                             000026

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Disparate impact. The following factors are important and require further discussion and •
definition:

Human health and ecological impacts, cultural impacts, religious impacts, historical and
cultural impacts on Native American communities, decreases in property values, rising noise
levels, psychological impacts, and other quality of life concerns. How do we apply the
discrete, identifiable, traceable criteria to measuring each of them, if they can be measured?

How do we further define the terms disparate impact and harm"?

There is a tension between assessment of the specific permitting action and analysis of
cumulative impacts within a community. How can innovative ways of responding to both be
encouraged?

3.  Impacted community.

How would these communities be defined (geographically, linguistically, culturally, via
religious practices, etc.)?

What methods or approaches should be used to identify and to determine the interests of the
impacted community? Central to this is the role of public participation, which needs to be
better understood, defined and applied.

How can we  look more effectively at community-wide impact, not just facility impact?
4. Plausible  approaches for measuring disparate impact. How can we ensure the involvement
of an accurate representation of the community throughout the process?

5. Cumulative Risk.

What'does the business community consider when it does a cumulative risk analysis?

What are the factors that define predicted impact?

Is the risk assessment done correctly and how can local government and the local community
play a major role?
 VII.
BASIC DEFINITIONS/GLOSSARY
 There are certain basic concepts that require definition. For the purposes of this report, these
 should be viewed as beginning definitions that a set of factors and indicators helps to refine.
 Since the subject matter referred to is a unique we do not believe that there are a "one size fits
 all" definition and argues against using a perfunctory approach towards defining the entities
 in question.  The following are thus working definitions.
 Aggregation:
                                                                           000027

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American Indian: All indigenous populations, regardless of their affiliation with a federally-
recognized Tribe.
                                 _      .                 '
Centroid Pull: A procedure for grouping census data; all data units (such as block groups)
with centroids (geometric centers) that fall within a defined radius from a central point are
included in the analysis.
         .                                              i  .       i
Community: A community is either a group of individuals living in geographic proximity to
one another, or a set of individuals (such as migrant workers or Native Americans), which
experiences common conditions.

Protected Group or Community: Communities/groups protected under Title VI of the Civil
Rights Act of 1964 are those which have a substantial population of persons who are
members of the following population groups: American Indian or Alaskan Native; Asian or
Pacific Islander; African American, not of Hispanic origin; or Hispanic.

The selection of the appropriate unit of geographic analysis maybe a governing body's
jurisdiction, a neighborhood, census  tract, or other similar unit that is to be chosen so as to
not artificially dilute or inflate the affected population group (minority or protected group) in
question. A [minority] population also exists if there is more than one minority group
present and the minority percentage, as calculated by aggregating all [minority] persons,
meets one of the above-stated thresholds.

Reference Area/Population: The reference population to be used in the assessment
described in this document is the population within the jurisdiction of the permitting agency.
For example, if the permitting agency is a state agency, the reference population is the state's
population; if the permitting agency  is a county, the reference population is the county's
population.

Geographic Information System:
                                                       !
Impact:

Environmental Impact: Environmental impacts (burdens) are adverse human health or
environmental effect on a particular community or segment or the population related to a
specific source or sources, resulting from cumulative or area-wide sources, and/or resulting
from inadequate or inappropriate application of government authorities.

.Disparate Environmental Impact:5 The Council on Environmental Quality captures this
5 A concise definition for this  has yet to  be developed.   I included the above
CEQ definition in full because I wanted the Workgroup to see  it in full.   I
placed brackets around the term  [low-income population or  Indian tribe].
Title VI does  not apply  to income; nor is it clear exactly how Title VI
applies to Indian tribes.   In addition,  there are other references which  must
be  changed.  I placed this definition here as well as in the  section on
Factors For  Identifying  Communities  Of Concern.   The above ,is really a set of
factors to consider and  would more appropriately be placed under the Factors
                                                                     000028

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concept in the following definition provided:

Disproportionately High and Adverse Human Health Effects: When determining whether
human health effects are disproportionately high and adverse, agencies are to consider the
following three factors to the extent practicable:

    Whether the health effects, which may be measured in risks and rates, are significant (as
    employed by NEPA), or above generally accepted norms. Adverse health effects may
    include bodily impairment, infirmity, illness, or death; and

    Whether the risk or rate of hazard exposure to an environmental hazards by a protected
    population is significant (as employed by NEPA) and appreciably exceeds or is likely to
    appreciably exceed the risk or rate to the general population or other appropriate
    comparison group; and

    Whether health effects occur in a protected population affected by cumulative or multiple
    adverse exposure from environmental hazards.

Disproportionately High and Adverse Environmental Effects: When determining whether
environmental effects are disproportionately high and adverse, agencies are to consider the
following three factors to the extent practicable:

    Whether there is or will be an impact on the natural or physical environment that
    significantly (as employed by NEPA) and adversely affects a protect group.  Such effects
    may include ecological, cultural, human health, economic or social impacts on protected
    communities when those impacts are interrelated to impacts on the natural or physical
    environment; and

    Whether environmental effects are significant (as employed by NEPA) and are or may be
    having an adverse impact on protected populations that exceeds or is likely to appreciably
    exceed those of the appropriate reference group; and

    Whether the environmental effects occur or would occur in a protected community
    affected by cumulative or multiple adverse exposure from environmental hazards.

 Low-income population: Low-income populations in an affected area should be identified
 with the annual statistical poverty thresholds from the Bureau of the Census Current
 Population Reports, Series P-60 on Income and Poverty. In identifying low-income
 populations, agencies may consider as a community either a group of individuals living in
 geographic proximity to one another, or set of individuals (such as migrant workers or Native
 Americans), where either type of group experiences common conditions of environmental
 exposure or effect. (CEQ Environmental Justice Guidance)

 Process impacts: Process impacts can include process violations, including no or inadequate


 Section.  However, a more concise definition  based upon this and other ideas
 needs  to be developed.


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notice, linguistic exclusion or discrimination, or disparate treatment in the permitting process.

VIII.     APPENDICES

Loren Hall Presentation
Region V EJ Policy Summary
Region IIEJ Policy Summary
Presentation on Cumulative Impact Analysis
IX.
LEGAL QUESTION FOR EPA TO RESOLVE:
Are permitting agencies responsible for impacts outside their jurisdiction which may result
from their actions? For example, would a state granting a hazardous waste permit be liable
under Title VI for the discriminatory impacts of traffic patterns.
                                                                            000030

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National Advisory Council for Environmental
           Policy and Technology
           Federal Advisory Committee
                         Appendix D: Workgroup II Membership
                         List arid Draft Report on Mitigation
                                       000031

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      WORKGROUP II: MITIGATION


                 REPORT


The Role of Mitigation in EPA's Guidance for Title VI
   Administrative Complaints Challenging Permits

                November 16,1998
                                          00003*

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              Title VI Implementation Advisory Committee: Workgroup II
Mrs. Susana Almanza, Director
People Organized in Defense of the Earth and her Resources
Austin, Texas

Mr. John Chambers
Brownfields Business Information Network
[at Arent, Fox, Kitner, Plotkin and Kahn]
Washington D.C.

Mrs. Lillian Kawasaki, General Manager
Environmental Affairs Department
City of Los Angeles
Los Angeles, California

Mr. Richard Lazarus, Professor
Georgetown University Law Center
Washington D.C.

Mr. Richard Moore, Coordinator
Southwest Network for Environmental and Economic Justice
Albuquerque, New Mexico

Mrs. Peggy Shepard, Executive Director
West Harlem Environmental Action, Inc.
New York, New York

Mr. Robert Shinn, Commissioner
New Jersey Department of Environmental Protection
Trenton, New Jersey

Mr. Gerald Torres, Associate Dean for Academic Affairs
University of Texas Law School
Austin, Texas
                                                                      000033

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                                                           November 16,1998
                              WORKGROUP II REPORT

                        The Role of Mitigation in EPA's Guidance
               for Title VI Administrative Complaints Challenging Permits
       L Introduction and Background

       In EPA's Interim Guidance for Investigating Title VI Administrative Complaints
Challenging Permits, EPA discusses at some length the role of "mitigation." The Guidance
states in pertinent part:

       EPA expects mitigation to be an important focus in the Title VI process, given the
       typical interest of recipients in avoiding more draconian outcomes and the difficulty that
       many recipients will encounter in justifying an  "unmitigated," but nonetheless disparate
       impact. In some circumstances, it may be possible for the recipient to mitigate public
       health and environmental considerations sufficiently .to address the disparate impact.
       The sufficiency of such mitigation should be evaluated in consultation with experts in
       the EPA program at issue.  OCR may also consult with complainants.  Where it is not
       possible or practicable to mitigate sufficiently the public health or environmental
       impacts of a challenged permit, EPA will consider 'supplemental mitigation projects"
       ("SMPs"), which, when taken together with other mitigation efforts, may be viewed by
       EPA as sufficient to address the disparate impact. An SMP can, for example, respond to
       concerns associated with the permitting of the facility raised by the complainant that are
        not otherwise redressable under Title VI (i.e., because they are outside those
        considerations ordinarily entertained by the permitting authority).

 EPA's Interim Guidance, page 11.                         .

        Although the guidance is somewhat ambiguous, EPA  seems to be using the term
 "mitigation" in two different ways. The first kind  of mitigation appears to involve measures that
 directly "address" the disparate impact itself by mitigating the "public health and environmental
 considerations" that are themselves the source of that disparate impact.  The mitigation, in effect,
 eliminates the disparity.

        The  second kind of mitigation appears to be more broad-based.  It takes the form of
 "SMPs" that "respond to concerns associated with the permitting of the facility..." (emphasis
 added). As characterized by EPA, these concerns-extend to "considerations" that are "outside
                                                                                0000*4

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those" within the ordinary scope of factors relevant to the permitting authority. Presumably,
such considerations may extend to other kinds of actions that address the affected community's
"public health and environmental" concerns.  They might also extend, in theory, to considera-
tions other than public health and environmental concerns. EPA states that such mitigation
measures "may be viewed by EPA as sufficient" to address the disparate impact. Presumably,
EPA chose the "may be viewed" language deliberately in order to obscure that this second kind
of mitigation measure does not in fact eliminate the disparate impact.

       Finally, in discussing the development of mitigation options, EPA's interim guidance
discusses procedures for determining their sufficiency. The guidance states that EPA "should"
consult with "experts" within the Agency. And the guidance provides that EPA staff "may" also
consult with the "complainants."

       The workgroup identified several issues related to, mitigation policy.  Some of those
issues related to the lawfulness, in the first instance, of the entire notion that any mitigation short
of an actual elimination of the disparate impact itself could be sufficient to render lawful what
would otherwise amount to a violation of EPA Title VI regulations' nondiscrimination mandate.
Other issues relate to the secondary question whether, assuming that mitigation can play a lawful
role within the context of Title VI regulations, it is sound policy for EPA to do so.  These policy
issues, in turn, relate to both the substance and procedure of sound mitigation policy, including
the proper scope of valid mitigation measures as well as the procedures that should be followed
to ensure meaningful and active community involvement in the development of those measures
and in their implementation.

       An important issue, related to mitigation procedure, concerns whether the filing of a Title VI
complaint with EPA should stay the  effectiveness of a permit pending resolution of the
complaint. The absence of any such stay plainly limits the types and effectiveness of mitigation
measures that might be available in the event that EPA concludes that the permitted facility
otherwise presents a disparate impact. On the other hand, the  automatic imposition of a stay
could adversely affect the interests of the entity  seeking a permit.  The questions whether a Title
VI complaint should always, never, or only when specified criteria are met (e.g., complaint
formally accepted by EPA), stay the  effectiveness of a permit that is the  subject of the complaint
are clearly extremely important matters for the Agency to address.  But while the EPA's answer
to these legal and policy issues are important for mitigation, it remains a threshold matter the
relevance of which extends far beyond mitigation alone.  For  this reason, we  do not address the
issue further in this report other than to emphasize its potential significance for mitigation policy
and to urge the Agency to consider that relationship in deciding whether the filing of a Title VI
complaint should be deemed to stay the effectiveness of those permit(s) being challenged.

       Nor does this report purport to address the threshold questions of law whether mitigation
policy is lawful under Title VI and EPA's implementing regulations or whether EPA may,
consistent with Title VI, consider the issue of "justification" prior to the  availability of
"mitigation." For the purposes of this memorandum, the lawfulness of each will be assumed.
Our doing so, however, should in no manner be seen as reflecting workgroup consensus on either
                                                                           000035

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of these legal issues. The workgroup simply decided to postpone consideration of these issues
and to move on to the related policy issues so as to avoid the difficulty of their preventing us
from providing EPA with possibly valuable input regarding the latter. In addition, it was the
general consensus of the workgroup that its expertise lies more in providing EPA with advice
regarding sound policy than in purporting to be "legal experts" advising the Agency about the
bounds of the law.  The purpose of this report, therefore, is to discuss the merits of alternative
ways of addressing various secondary, policy issues regarding sound mitigation policy based on
the assumption that some mitigation policy is lawful.

       This report is accordingly, divided into three parts.  The first part discusses the pros and
cons of different approaches to the possible substantive scope of mitigation policy.  And, the
second part discusses the pros and concerns of different approaches to procedural issues related
to mitigation policy. The final part of the report presents areas of agreement reached by the
workgroup. These points of consensus are expressed in terms of both specific findings and
recommendations. Because, moreover, the workgroup identified several threshold legal issues
that, while outside the scope of our inquiry, were nonetheless relevant to mitigation policy, each
of these issues is reiterated in the .final, conclusory section  of the report in either our findings or
recommendations.
       II. Substantive Scope of Mitigation

       There are, of course, infinite ways in which one could define the substantive scope of
 acceptable mitigation policy.  For the purposes of this report, however, it is helpful to select out
 several of the more obvious approaches in order to compare and contrast their relative
 advantages and disadvantages. These approaches range from very narrowly-defined mitigation
 measures to more sweeping, flexible approaches.  Three such possible approaches are described
 below and then some of the relevant considerations in choosing one rather than another are
 outlined.

               A.     Possible Approaches For Defining Permissible Mitigation — From
                     Narrow to Broad

       The principal  characteristic distinguishing the three approaches described in more detail
 below is the extent to which each requires that the mitigation measure address the source of the
 disparity in impact that serves as the basis for the Title VI complaint. This relationship between
 the mitigation  measure and the disparity in impact can be referred to as the "nexus." Simply
 stated, the most narrow approach demands that the mitigation measure address that impact most
 directly. In other words, the required nexus between the mitigation measure and the initial
 disparity is very tightly drawn.  By contrast, the broader approaches are less demanding in their
 requirements of a narrowly-drawn nexus. They are much more willing to accept as proper
 mitigation measures those that address concerns of the community other than those that serve as
 the basis of the disparity.
                                                                          000036

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                                           I                !         I
       But for this same reason, the extent to which a "narrow" approach differs as a practical
matter from a "broad" approach necessarily turns on the scope of the impacts that are relevant in
deciding whether a disparity exists in the first place. For example, if the scope of impacts
relevant to deciding whether a disparity exists is very broadly defined, then even a very
narrowly-defined mitigation policy would necessarily allow for broad-based mitigation
measures. It is relatively easy to establish a nexus between the mitigation measure and the
disparity if the disparity itself is broadly defined. And, conversely, if the disparity is narrowly
defined, it is that much harder to claim that a mitigation measure directly addresses it.

       There is, accordingly, an unavoidably elusive quality to any discussion of mitigation
policy so long as EPA has not yet clearly decided on the scope of concerns relevant to the central
"disparate impact" inquiry. A distinct, but related over-arching concern, is the lack of a clear
definition of what constitutes the adversely-affected "community" for purposes of determining
whether the  impact is "disparate" and in fashioning  community participatory rights. The
workgroup has identified these fundamental problems, but decided not to allow their existence to
prevent our undertaking analysis of mitigation issues. Our concern is that the entire FACA
process would otherwise be paralyzed as consideration of each issue would be postponed until
the other was first resolved.
       1.
Narrow Nexus Approach
       The narrowest approach to mitigation policy would be to propose that the only viable
mitigation is that which directly addresses the disparity in impact that is the basis of the
discrimination claim.  The mitigation measure would, moreover, have to eliminate the disparity
and do so more immediately.

       If, therefore, the disparity is that the community would suffer greater adverse health
effects from exposure to certain pollution, then the validity of a proposed mitigation measure
would turn on whether it eliminated the disparity (or at least its own contribution to that
disparity) in adverse health effects from that same pollution. Or, if the disparity was in the
community's exposure to high levels of pollutants (without any need to demonstrate actual
adverse health effects), then the mitigation measure would have to reduce the levels of pollutants.
In either scenario (adverse health effects or pollutant levels), any other less direct and absolute
tradeoff would be unacceptable because it would, in effect, allow discrimination to continue.
       2.
Moderate Nexus Approach
       A more moderate approach to mitigation policy would be to propose that mitigation
measures must relate to the same type of concerns that are the source of the disparate impact.
The mitigation measure need not, however, either eliminate that impact altogether or address it
directly.  The mitigation measure might also deliver its benefits less immediately than under the
narrow approach.
                                                           1         i
       For instance, if the disparity in impact relates to risks of adverse health effects caused by


                                                                            000037

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elevated, levels of pollution, then any mitigation measure that reduces the health risks faced by
the community could be acceptable. The proposed mitigation might seek to reduce health risks
caused by other kinds of pollutants or.even other kinds of activity. Or the mitigation might even
seek to provide better health care facilities, treatment, or screening in order to reduce the risks
associated with the operation of the facility seeking a permit. Or the mitigation might require
steps to minimize, more than legally required, the possibility of permit noncompliance, if such
noncompliance is a source of the risks of concern to the community. The latter might include
measures that enhanced the community's ability to participate in an advisory group to monitor
and make recommendations regarding the facility's operation and regulatory compliance.

       Similarly, if the disparity in impact relates to adverse environmental effects caused by
elevated levels of pollution or more direct physical impacts on the environment of the activity
seeking a permit, then any mitigation measure that sought, to reduce those effects or otherwise
improve the environmental quality of the community might be acceptable. It could be to
improve the quality or the community's enjoyment of the same resource, or the same type of
resource, or perhaps even a different environmental amenity in the community.

       Finally, mitigation and the benefits that it offers may sometimes occur over time. There
is, in other words,  a temporal dimension to mitigation. A mitigation measure might be
addressing a long term problem, which is not susceptible to an immediate  solution with
immediate benefits.  The measure may instead require a longer term planning process that
generates benefits only after many years.  The tradeoff, accordingly, may depend on the
community's willingness to accept a short term increase in risk in return for a promise of
substantial benefits over the longer term.
       3.
Loose Nexus Avvroach
     ,  The broadest approach to mitigation policy would be to accept any kind of mitigation
 measures that address community concerns, regardless of their relationship to that impact, so
 long as the benefits to the community of those mitigation measures outweighed the facility's
 adverse disparate impact. The community would, in effect, be allowed to trade off a
 discriminatory impact for some other, presumably more weighty, community concern. Unlike the
 moderate nexus approach, the mitigation measure would not need to address the same general
 type of concerns that are the source of the disparate impact.

       Under such a loose (or arguably nonexistent) nexus approach, mitigation of a disparate
 impact related to elevated levels of pollution could be funds for better schools, better recreational
 facilities, housing, health care facilities, job training, increased employment opportunities, or
 higher wages. The bottom line would simply be to address the community's serious needs
 whether or not those needs happen to coincide with the specific problems implicated by that
 aspect of the facility that requires an environmental permit.  The community might likewise be
 more open to the acceptability of mitigation measures that provide benefits less immediately and
 more over the longer term.
                                                                           000038

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             B.     Some of the Advantages and Disadvantages of Alternative
                    Approaches

       The most obvious tradeoff in going from narrow to loose nexus requirements in
mitigation policy is between, on the one hand, strict adherence to the nondiscrimination principle
and, on the other hand, a desire to address the broader needs of a disadvantaged community. Title
VI, and the implementing regulations of federal agencies such as EPA, provide a
nondiscrimination mandate. As a practical matter, however, they provide the community
protected by that nondiscrimination mandate with significant legal leverage over a proposed
economic activity requiring a permit. And while that leverage may sometimes be used to prevent
the issuance of the permit altogether, the leverage also offers the opportunity for a bargain to be
struck that inures to the needs of the community. That is especially so to the extent that the
terms "discrimination" and "disparate impact" are unavoidably ambiguous.
                                                  /
       For some, any notion of a tradeoff is wholly out of bounds.  A nondiscrimination mandate
should not be the subject of a bargain.  That would be tantamount to allowing the right to
discrimination to be purchased. A mitigation policy that allowed such a tradeoff would,
accordingly, be no less than an improper legal sanctioning of economic blackmail. Those who
hold that position will likely be most attracted to the narrow, more demanding nexus approach to
Title VI mitigation policy.

       For others, though, such a characterization of Title VI, its implementing regulations, and
the permitting process, ignores both legal and practical realities. It is not always clear what
discrimination is and what it is not in the context of Title VI regulations aind disparate impact
analysis. It is therefore not at all clear that what is being bargained away is what would
otherwise amount to a legal prohibition if the community instead sought a strict enforcement of
its legal rights. The courts might, in other words, reject such a lawsuit as lacking any legal merit.

       Alternatively, those resisting a narrow nexus approach might focus on what they view to
be the practical realities. They might contend that the practical reality is that the community has
substantial, immediate and long term, compelling needs and it may be more advantageous to the
community to take full advantage of the disparate impact analysis in negotiating with a company
seeking to site a facility in the community. And, one effective way to do so, they might further
argue, is to extract commitments,  concessions., services, and outright transfer of funds from the
activity requiring a permit. Advocates  of this position would posit that the community  must, in
other words, be ready to use those few legal advantages that it possesses in the most effective
manner possible. Someone who embraced this characterization of the regulatory permitting
process might well be attracted to the loose nexus approach to mitigation policy.
                                                        i
       By its nature, the more middle-ground, "moderate nexus" approach has some of the
advantages and some of the disadvantages of the narrower and looser nexus approaches that lie
on either side of it. By seeking to split the difference, however, the moderate approach arguably
lacks the purity of purpose that the other two contrasting views supply. For related reasons, it
also has the disadvantage (perhaps also the advantage) of obscuring the nexus requirement arid


                                           6                             000099

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thereby providing both the Agency and the affected community with more discretion to -
determine oh a case-by-case basis what kind of mitigation should be considered.

       Finally, there is a further policy argument in favor of EPA's declining to adopt a "one
size fits all" approach to mitigation.  Assuming still that any one of the three approaches is
legally permissible,1 there is no rigid requirement that EPA's guidance prescribe one approach to
all situations.  EPA could, for instance, embrace a hybrid approach that formally adopts one
nexus approach but allows for either looser or tighter nexus requirements under specified
circumstances.
       The workgroup considered formally stating that a narrow nexus requirement always had
to be used whenever the disparate impact presented an imminent and substantial endangerment to
human health. A consensus developed regarding the relative advantages of one hybrid approach.
This approach allows for mitigation measure that satisfy a moderate nexus requirement but
nonetheless mandates that mitigation measures should always be as narrowly tailored as
reasonable and practicable.

       The workgroup also discussed the possibility of EPA's simply concluding in its guidance
that it is up to the permitting authority and the affected community to decide which approach was
most sensible in the circumstances of a particular facility. This kind of decentralized approach to
mitigation would have one possible advantage from an environmental justice perspective. It
would potentially provide affected communities with more  authority to decide for themselves the
proper role for mitigation, rather than have that policy issue decided nationally and imposed
uniformly on all communities.

       A final variation considered by the workgroup is for EPA's guidance seeking to
distinguish between different kinds of Title VI claims and suggest that some warrant a narrower
nexus approach while others warrant a moderate or looser nexus requirement. For instance, EPA
might distinguish between circumstances depending on the source of the disparity, i.e., whether
the disparity in impact results from industrial facilities that are (or are not) permitted by the state
agency subject to EPA's Title VI regulations. The larger the universe  of facilities that one
subjects to disparate impact analysis, the more justifiable it might be to adopt a looser nexus
approach. A looser disparate impact inquiry, in short, may justify a looser nexus approach.

        Of course, whether such a distinction is itself appropriate depends on how EPA
ultimately resolves the threshold legal question regarding the scope of facilities relevant to the
disparate impact inquiry. That legal issue is quite controversial. States generally contend that
facilities not permitted by the state agency that is the subject of the Title VI challenge are outside
the scope of disparate impact analysis.  Many community groups advance a contrary view. All
        1 Please recall that this memorandum assumes away legal issues relating to mitigation
 and addresses only the policy implications of choosing between alternative mitigation policies
 based on that threshold assumption that each option — narrow, moderate, and loose — is legally
 permitted by Title VI and its implementing regulations. See page 2 above.
                                                                        000040

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this workgroup can do, however, is identify the legal issue and, as we have
relevance to EPA's fashioning of mitigation policy. We cannot purport to
 done, point out its
resolve it.
       III.    Procedural Issues

       The procedural issues pertaining to mitigation are three-fold.  First, they relate to the
development of mitigation measures that might eliminate the disparity in impact altogether.
Second, they relate to the development of supplemental mitigation projects ("SMPs") that
address the disparity, but do not purport to eliminate it. And, finally, they relate to ensuring that
mitigation measures, once adopted, are in fact implemented and achieve their intended beneficial
results.
                                                                  I                       i'
                                                                  I           '            I
       Each of these three procedural matters raises impprtant environmental justice concerns
because of the need for meaningful, ongoing community involvement in decisions affecting the
community's essential interests. The long-standing, persistent mistake made by government
regulators and by those in the regulated community is the failure to provide for community
involvement in the permitting process. The upshot is poorer permitting decisions, greater
misunderstandings, and greater controversies at the expense of the interests of all, but especially
the legitimate interests of the affected community. This is no less true for the mitigation
dimension to permitting  decisions.  Indeed, because the asserted purpose of mitigation in the
Title VI context is to identify and address the community needs, community involvement is all
the more indispensable.
                                                         II                       I

       At least on its face, however, EPA's interim Title VI guidance does not affirmatively
provide for such enhanced community involvement on issues related to mitigation.  Quite the
opposite is true.  The precise wording of the document appears to downgrade the relative
importance of consultation with the community.  While the guidance instructs that the "sufficiency
of such mitigation should be evaluated in consultation with experts in the EPA program at
issuefc"]  it simultaneously provides only that EPA's Office of Civil Rights "may also consult
with complainants. ". For community representatives, however, they are themselves the "experts"
that should be  consulted on issues of mitigation.
       Of course, EPA's guidance can be read more benignly. The consultation to which the guidance
refers may be intended to relate simply to technical matters regarding the ability of a proposed
mitigation measure to work. Even so, however, the guidance is lacking for neglecting to  address
explicitly the need for community involvement on those mitigation issues about which the
community does unquestionably possess the most relevant expertise.

       The most logical starting point for EPA in rethinking its approach to community
involvement would be to consult and incorporate into its Title VI guidance the public
participation model developed by the Public Participation and Accountability Subcommittee of
EPA's National Environmental Justice Advisory Council (NEJAC). That guidance addresses
many of the essential participatory issues, including, but not limited to the need for notice to the
community, identification of community interests, timing and scope of public participation, and

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communication with the community. The very purpose of this model is to facilitate meaningful
public participation in agency decision making affecting the community's interests. Decisions
relating to mitigation appropriate in the Title VI context implicate just such core community
environmental concerns and raise each of the issues addressed in the NEJAC Model.

       There is, moreover, a palpable need for active and. ongoing community involvement in
both the threshold decision whether any mitigation is appropriate in a particular instance and, if
so, what measures constitute acceptable mitigation. After all, mitigation is designed, to some
extent, to address the complaining party's concerns in order to defuse the controversy in a
manner not unlike a settlement.  Unless, however, the complaining party is allowed to participate
actively in the development of mitigation measures, those measures ultimately selected are
unlikely to accomplish that settlement objective. Because the complaining party in the Title VI
permitting context are typically community members who are aggrieved as a result of the
possibility of a disparate impact, their entitlement to meaningful participatory rights is  all the
more compelling.

       EPA should also look to its recently-issued guidance on public participation in the
development of supplemental environmental projects ("SEPs") in the settlement of EPA
enforcement actions. The Agency's 1995 interim revised SEP guidance was criticized for failing
to provide for sufficient community involvement in the fashioning of SEPs and the Agency
responded in its final 1998 guidance with more significant opportunities for community
involvement.2

       The parallels between SEPs and SMPs, moreover, are obvious. A SEP  is a project that an
alleged violator of an environmental protection requirement agrees to undertake in settling an
enforcement action brought against it.  Such projects typically provide benefits directly to the
community (not the plaintiff) that was adversely affected by the violation. Although SEPs and
SMPs are fundamentally different in certain respects,3 the need for community involvement in
deciding on what kind of mitigation projects are the most appropriate is compelling in both types
of mitigation measures.

       Indeed, the case for active public participation in SMPs is actually far stronger than it is
for SEPs. EPA's public participation requirements for SEPs apply to cases where the Agency is
settling its own enforcement action. Where a Title VI administrative complaint has been filed,
however, the initial complainant are typically representatives of the affected community, not the
Agency itself. For this reason,  those community representatives would seem plainly entitled to
        2 The 1998 guidance section on "Community Input" is reproduced in Appendix A.
        3 SEPs involve the alleged violator agreeing to do something beneficial for the
 environment above and beyond what the law requires (which is what justifies an associated
 reduction in civil penalties that would otherwise apply to the violation). It is less clear whether
 SMPs are otherwise required by law, like SEPs, or are instead more properly viewed as what the
 law (i.e., Title VI regulations) requires.

                                                                         000042

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even greater involvement in the development of mitigation measures than they are in SEPs where
they may be the primary beneficiaries of the litigation, but not its formal instigators. They should
be actively involvedin any decision-making process designed to develop acceptable mitigation
measures. Under EPA's preliminary Title VI guidance, however, community representatives
have even fewer participatory rights than they do in the development of mitigation measures for
SEPs.
                                                         i         |
       IV.    Workgroup Tentative Findings and Recommendations
                                                         '         i
       In a series of conference calls, the workgroup discussed the various issues described in
this report. Not surprisingly, there were areas of substantial disagreement. Even when some
degree of consensus was apparent on advantages and disadvantages of possible approaches, there
was often disagreement both on their relative weight and how the ultimate policy balance should
be struck. There were nonetheless some areas of common ground, at least: with respect to
findings and even with regard to some specific recommendations. They are described below.

       A.     Findings

       The workgroup makes the following findings:
                                          1               i   ,      i
       1.      A series of threshold legal issues need to be resolved more definitively before
       issues relating to mitigation can themselves be resolved because the answers to those
       threshold issues determine, in effect, the scope of permissible mitigation.  These issues
       include:
                                                         ii
       a.      Whether, as a matter of law, the impacts relevant to a "disparate impact" inquiry
              are strictly confined to the environmental effects that are relevant under the
              particular environmental law creating the permit requirement or instead extend to
              all the actual social, economic, and environmental effects  of a decision to grant a
              permit.

       b.      Whether, as a matter of law, mitigation short of measures  that actually eliminate a
              source's creation of, or contribution to, a disparate impact can validly allow for
              the permitting of that pollution source.

       c.      Whether, and under what circumstances, the filing of a Title VI complaint with
              EPA, stays, as a matter of law, the effectiveness of a permit pending resolution of
              that complaint.

       d.      Whether, as a matter of law, EPA may consider the availability of measures
              designed to mitigate a disparate impact prior to determining whether that disparate
              impact is justified.
       2.     Assuming that mitigation need not, as a matter of law, eliminate the disparate
                                            10
                                                                         000043

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impact to be created by the entity seeking a permit, or that entity's contribution to a
pre-existing disparate impact, there are a series of competing advantages and
disadvantages that warrant consideration in deciding whether EPA should, as a matter
of policy, embrace a broader rather than narrower mitigation policy.

3.     The primary characteristic distinguishing possible EPA mitigation policy
relates to the extent to which the mitigation measures must address the source of the
disparity in impact that serves as the basis for the Title VI complaint, which is referred
to as the "nexus" requirement.

a.     A "narrow nexus" mitigation policy would provide that the only viable mitigation
       is that which directly addresses the disparity in impact that is the basis of the
       discrimination claim and that immediately eliminates the disparity (or at least the
       source's contribution).

b.     A "moderate nexus" approach would provide that mitigation must relate to the
       same type of concerns that are the source of the disparate impact, but need not
       eliminate that impact or provide mitigating benefits as immediately.

c.     A "loose nexus" approach would find acceptable any mitigation measures that
       address community concerns, regardless of their relationship to that impact, so
       long as their benefits to the community outweigh the facility's adverse disparate
       impact.

 4.     There are policy advantages and disadvantages relevant to selecting between a
 "narrow," "moderate," or "loose" nexus approach, with strict adherence to a
 nondiscrimination principle favoring the first, the retention of maximum discretion to
 address the broad needs of a community favoring the last, and a rough compromise of
 those two  more extreme views favoring the middle, position.

 S.    A hybrid approach that allows for mitigation measures that satisfy a moderate
 nexus requirements but nonetheless mandates that mitigation measures should always
 be as narrowly tailored as reasonable and practicable combines several of the
 advantages of each of those nexus approaches.

 6.     There may be grounds for EPA 's distinguishing between different kinds of Title
  VI claims, based on the source of the disparity, in deciding whether a narrow,
 moderate, or loose nexus policy is the most appropriate.

  7.     Mitigation measures that require actions over time and deliver their benefits in
  the future are a valid form of mitigation but must be combined  with measures designed
  to ensure that the mitigation in fact occurs, including measures that provide for
  monitoring of the progress of mitigation and for the enforceability of the promised
  mitigation.
                                      11
                                                                  000044

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8.     Meaningful community involvement is an essential component of any Title VI
mitigation policy applicable to permitting.
                                   i               i  '       i
9.     EPA's Interim Guidance for Investigating Title VI Administrative Complaints
for Challenging Permits fails to provide for meaningful community involvement. The
guidance provides for even less-community involvement than the Agency's final
guidance respecting "community input" in the development of supplemental
environmental projects (SEPs), although the need for community involvement in the
Title VI context is even greater than they are for SEPs.
                                   :               '         I
10.    The Public Participation Model developed by EPA's National Environmental
Justice Advisory Council provides a useful starting point for the fashioning of
procedures intended to ensure community involvement in Title VI mitigation policy in
the permitting context.

11.    There are several different opportunities for public participation relevant to
mitigation, including (i) pre-flling of a formal Title VI administrative complaint, (ii)
post-filing/pre-acceptance of a complaint, and (in) post-acceptance of a complaint.

12.    Mitigation measure that requires action in the future for the delivery of the
promised mitigation must include community capacity (including adequate resources
and technical knowledge) to monitor implementation and enforcement of the
mitigation.
       B.
Recommendations
The workgroup makes the following recommendations:

1.     EPA's Office of General Counsel needs, in consultation with the Department of
Justice, to reach a final resolution of the four threshold legal issues described in
Finding #1 above.

2.     To minimize the instances when a Title  VI administrative complaint needs to be
filed with the Agency, EPA should promote the initiation of early, informal
consultative processes among the permitting authority, permit applicant, and
potentially affected members of the community and their representatives.

3.     If EPA concludes that a narrow nexus mitigation policy is not required as a
matter of law, then the Agency should adopt a mitigation policy that allows for
mitigation measures that satisfy the "moderate  nexus" approach described in Finding
#3(b) above, but based on the following further restrictions:
       a.     mitigation measures must nonetheless always be as narrowly tailored to
                                    12
                                                      000045

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             the disparate impact as is both reasonable and practicable;
       b.     the reasonableness of mitigation measures that address the disparate
             impact less precisely depends on their ability to provide substantially
             greater benefits to the community;
       c.     mitigation measures that require actions over time and deliver their
             benefits in the future must be combined with measures designed to ensure
             that the mitigation in fact occurs, including measures that provide for
             monitoring of the progress of mitigation (e.g., timelines with specific
             dates) and for the enforceability of the promised mitigation in an
              appropriate binding legal document (e.g., formal permit conditions,
              memoranda of understanding);  and
       d.     a fair process for developing mitigation measures must include meaningful
              public participation by potentially affected community interests, including
              those who initiated the Title VI complaint.

4.     EPA should not adopt a "loose nexus" approach to Title VI mitigation policy.

5.     EPA's Title VI guidance should provide for public participation in the
fashioning of mitigation measures that:
       a.
meets the minimum requirements for meaningful community involvement
set forth in the NEJAC's Public Participation Model;
        b.      surpasses the extent of community input set forth in EPA's final guidance
               relating to supplemental environmental projects in the settlement of EPA
               enforcement actions;

        c.      generally addresses the need to provide an up-front, pre-development
               process, including procedures for early dispute resolution, for identifying,
               preventing, and addressing any disparate impacts;

        d.      establishes a consultative process within which the complainants,
               community representatives, the permit applicant, and other relevant
               stakeholders are part of the decision-making processes in the fashioning of
               any mitigation measures that are developed after the time that a Title VI
               complaint is filed;

        e.      provides that mitigation measures include provisions that ensure that the
               community is provided with the capacity (including resources) to monitor
               implementation of the mitigation measures, especially those promising the
               adoption of mitigation in the future; and
                                                                    000046
                                       13

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f.      for mitigation measures that are both adopted after EPA's formal
       acceptance of a Title VI administrative complaint and. that depend on the
       permit applicant's taking actions in the future, the measures should
       provide for the establishment of a citizen advisory board with the capacity
       for monitoring implementation of those mitigation measures.
                              14
                                                        000047

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APPENDIX A:  SECTION ON COMMUNITY INPUT FROM EPA FINAL 1998 SEP GUIDANCE

       In appropriate cases, EPA should make special efforts to seek input on project proposals
from the local community that may have been adversely impacted by the violations. Soliciting
community input into the SEP development process can: result in SEPs that better address the
needs of the impacted community; promote environmental justice; produce better community
understanding of EPA enforcement; and improve relations between the community and the
violating facility. Community involvement in SEPs may be most appropriate in cases where the
range of possible SEPs is great and/or multiple SEPs may be negotiated.

       When soliciting community input, the EPA negotiating team should follow the four
guidelines set forth below.

              1. Community input should be sought after EPA knows that the
       defendant/respondent is interested in doing a SEP and is willing to seek community input,
       approximately how much money may be available for doing a SEP, and that settlement of
       the enforcement action is likely. If these conditions are not satisfied, EPA will have very
       little information to provide communities regarding the scope, of possible SEPs.

              2. The EPA negotiating team should use both informal and formal methods to
       contact the local community. Informal methods may involve telephone calls to local
       community organizations, local churches,  local elected leaders, local chambers of
       commerce, or other groups.  Since EPA may not be able to identify all interested
       community groups, a public notice in a local newspaper may be appropriate.

              3. To ensure that communities have a meaningful opportunity to participate, the
       EPA negotiating team should provide information to communities about what SEPs are,
       the opportunities and limits of such projects, the confidential nature of settlement
       negotiations, and the  reasonable possibilities and limitations in the current enforcement
       action.   This can be done by holding a public meeting, usually in the evening, at a local
        school or facility. The EPA negotiating team may wish to use community outreach
        experts at EPA or the Department of Justice in conducting this meeting. Sometimes the
        defendant/respondent may play an active role at this meeting and have its own experts
        assist in the process.

              4. After the initial public meeting, the extent of community input and
        participation in the SEP development process will have to be determined.  The amount of
        input and participation is likely to vary with each case. Except in extraordinary
        circumstances and with agreement of the parties, representatives of community groups
        will not participate directly in the settlement negotiations. This restriction is necessary
        because of the confidential nature of settlement negotiations and because there is often no
        equitable process to determine which community group should directly participate in the
        negotiations.
                                                                     000048
                                            15

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National Advisory Council for Environmental
           Policy and Technology
           Federal Advisory Committee
                                          000049

                         Appendix E: Workgroup III Membership
                         List and Draft Report on a State and
                         Local Government Template

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 WORKGROUP III: OPERATIONS


            REPORT


A Template for State Environmental Justice
              Programs

           November 13,1998
                                   600050

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             Title VI Implementation Advisory Committee; Workgroup III
Mrs. Sue Briggum, Director
Government and Environmental Affairs
Waste Management
Washington D.C.

Dr. Robert Billiard
Environmental Justice Resource Center
Clark Atlanta University
Atlanta, Georgia

Mrs. Cherae Bishop, Director
Energy and Natural Resources
National Association of Manufacturers
Washington D.C.

Ms. Eileen Gauna, Professor
Southwestern Law School
Los Angeles, California

Mr. Tom Goldtooth
Indigenous Environmental Network
Bemidji, Minnesota

Dr. Walter Handy, Jr., Assistant Commissioner
Cincinnati Department of Health
Cincinnati, Ohio

Mr. Barry McBee, Commissioner
Texas Natural Resource and Conservation Commission
Austin, Texas   [Resigned from Committee]

Mrs. Jody Henneke, Director
Office of Public Assistance
Texas Natural Resources and Conservation Commission
Austin, Texas [Replaced Mr. McBee on Committee]

Mr. Langdon Marsh, Director
Oregon Department of Environmental Quality
Portland, Oregon
                                                                           000051

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                        10/20/98
                   (includes WH revision 11/13)
                     Report of the
                National Advisory Council
                          for
           Environmental Policy and Technology
     Title VI Implementation Advisory Committee
         WORKGROUP III: OPERATIONS
A Template for State Environmental Justice Programs
                                            &00052

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INTRODUCTION
The Mission of Workgroup III
       Webster's Third International Dictionary defines a template as a "pattern or guide" used
to "produce a desired profile."  The mission of Workgroup III is to develop a template for state
environmental justice programs, describing both the structure and the key elements of the process
that states could use to ensure environmental justice and to identify, prevent, and resolve claims
of discriminatory treatment.

       The template described in this report is intended as a model for states concerned about
these issues.  It is not intended as the basis for a mandatory requirement that the states adopt such
programs.  However, the Workgroup urges EPA to create strong incentives for states to
implement programs modeled on the principles described here by establishing a presumption in
favor of state decisions when it evaluates Title VI complaints against states that implemented
these principles in good faith.

       Although Workgroup III devoted considerable effort to the framework and procedures
presented in this report, the template is not yet complete. Before the template can be used to
establish a presumption in favor of state programs', substantive guidance must be added that
defines such crucial concepts as the factors and methodology involved in identifying adversely
affected populations and the harm they have suffered, as v/ell as the content of any acceptable
justifications for such results and actions that can be taken to  mitigate them. The Title VI
Advisory Committee includes two other workgroups that are  addressing these issues, and
Workgroup III anticipates that their final product will be read in conjunction with this report.

        Two Paths to Justice
        Workgroup III was fortunate to have the active participation of the directors of three state
environmental agencies: New Jersey, Texas, and Oregon.  As we studied the efforts they have
made to develop proactive environmental justice programs, it became clear that the states
approach the issues from two distinct directions.  First, the programs address potential
discrimination against communities that results from permitting decisions made with respect to
individual facilities. Second, such programs explore and attempt to remedy the imposition of a
disproportionate burden of adverse environmental effects on minority communities without
regard to the constraints of the permitting process.  Both tracts holds promise because of their
 1 What incentives or "presumptions in favor of state programs" can be offered or created by EPA that will offset the
 additional state resources necessary to comply with tract 2 "paths to justice" of these recommendations.  The same
 question may be asked with respect to businesses and industry and their role in tract 2 recommendations.

                                             1
                                                                               000053

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more proactive response to community concerns. However, the second tract goes beyond the
dictates of Title VI and may pose resource concerns.
       The template we have developed assumes that state environmental justice programs could
develop along both tracks. Thus, cumulative effects that are difficult to address effectively in
single-facility permitting proceedings would be identified and addressed by other activities of the
state program.
       State Flexibility
       Although Workgroup III developed a strong consensus regarding the desirability of a
two-track structure for states and the importance of EPA deference to state decisions as an
incentive for states to adopt the template, members diverged on the question of how much
flexibility states should be given to translate the principles contained in the template into
an operational protocol.1 One state representative described the template as a "menu" of
options for the states, while another participant urged that the template contain as much
prescriptive detail as possible.  An industry representative reiterated the need for clarity and
certainty so that the consideration of environmental justice concerns could proceed at the same
time as permits are processed; eliminating inordinate delays. As EPA refines the template, the
Workgroup recommends that it achieve a balance between the  need to establish a clear floor for
state programs while still giving the states the flexibility to adapt these principles to their own
local circumstances.
       The Workgroup recognizes that some states believe that EPA should delegate the
resolution of Title VI claims to the states, leaving appeals of the  decisions made at the state level
to the judicial system. The Workgroup, however, recognizes the EPA's continuing obligation as
arbiter of such claims.
                                                          i  '       j
The Best Context for Environmental Justke Programs
        The Workgroup recommends that EPA and the states make explicit the relationship
between effective environmental justice programs and other initiatives that address the
fundamental sources of such concerns. For example, programs that address pollution on a
watershed or air shed basis have the potential to define and ameliorate the cumulative effects of
emissions on minority communities more effectively than individual permit decisions. Similarly,
 1 The question of minimum and maximum flexibility from state to state needs to be addressed by the Committee.
 Too much variability from state to state may be very confusing to national organizations (NGO's and businesses and
 industries). The question of flexibility here seems directly connected with the question of incentives or
 "presumptions" referenced above in #1. I believe that agreed upon minimum and maximum flexibilities have to be
 established by the workgroup or the Committee.
                                                                             000054

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EPA and state efforts to develop cross-media programs may provide better opportunities for
mitigating the adverse effects of emissions on minority communities. Finally, EPA's efforts to
develop and make accessible to the public data regarding environmental indicators will prove
extremely helpful in bolstering the transparency of the public participation process envisioned by
this template.
       EPA and state policy statements regarding environmental justice, cross media regulation,
watershed and air-shed protection, and efforts to improve environmental information should
describe these interrelationships and encourage coordination between these activities.

       Next Steps for EPA
       The Workgroup recommends that EPA take the recommendations produced by this
Advisory Committee and give them substantial weight in its efforts to produce final guidance on
environmental justice issues. We anticipate that EPA will consult with other constituencies and
experts in the course of preparing final guidance, and that the guidance will be published for
public comment before it is issued in final form.
       The Workgroup further urges EPA to develop and. make available to the states and the
public the tools necessary to implement the programs envisioned by the template we have
proposed. For example, EPAhas made strides in developing models and other tools for
assessing the cumulative effects of exposure to environmental releases. The Agency has also
made efforts to help states computerize and make available to the public information regarding
the status of facility permits, as well as critical data about the condition of the environment,
enforcement activities, and regulatory requirements. EPA has pioneered the development of
methodologies that help industry and mineral extractive sectors identify and implement
pollution prevention opportunities.  It is also developing mobile sensor technology that allows
measurements of ambient air quality in communities, a category of information that is often
requested by community groups. EPA could also .consider developing a checklist or inventory of
the sources that are most prevalent in minority communities for use by citizens and the states in
assessing cumulative exposures. All of these tools are vital building blocks in the
implementation of effective environmental justice programs, and the Workgroup recommends
that EPA devote significant resources to making  them readily available to state agencies,
industry, tribes and the public.

        In addition to continuing its consultations with the states regarding Title VI issues, the
Workgroup recommends that EPA initiate consultations 'with industry groups to explain the goals
of its environmental justice guidance.  It is the sense of the Workgroup that although the
chemical and waste management industries are aware of the issues,  other elements of the
manufacturing  sector may not understand how such considerations can affect their business.   We
would particularly encourage proactive efforts to educate the smaller business community.
                                                                            000055

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       Road Map to This Report
       The Workgroup has developed seven principles to serve as a template for incorporating
environmental justice into state permitting processes. These principles are listed and discussed
in the approximate order that they arise in the permitting process:
                                                        !      "'
       1.     Identify Title VI issues proactively, with a community-based focus.

       2.     Define relevant pollution sources to be addressed by state Title VI
             programs accurately and inclusively, taking into consideration cumulative
             health and environmental effects. '
                                                           11      i
       3.     Expand existing decision-making processes to incorporate environmental
             justice issues, rather than creating a new  and separate process, while
             ensuring that decision-makers address such issues in a timely,  efficient, and
             predictable manner. In that context, ensure that states have adequate legal
             authority to carry out their programs.2
                                                        !         !
       4.     Establish a transparent, accessible, honest, and accurate process for public
             participation.

       5.     Inform and involve  all relevant levels and types of government entities in
             the process of reviewing actions that may have Title VI implications. It is
             especially important to consult with local government officials, including
             economic development officials.
                                                        ;
       6.     Create and identify incentives for permittees to address community
             concerns voluntarily.

       7.     Build community monitoring capacity.
1 Who will define these sources? Will the definitions and selection of these sources also take into consideration
cultural and other "quality of life" concerns?
1 Is it more advantageous for states to develop this legal authority for themselves, or may EPA develop federal law
or administrative code that can be delegated to the states.
                                                                      000056

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THE SEVEN PRINCIPLES
Proactive Problem Solving
       Identify Title VI issues proactively, with a community-based focus.
       Perhaps the single most important characteristic of the template proposed by this report is
early and proactive efforts to identify and address environmental justice issues.  This principle is
especially important in the context of the permitting process for individual facilities, but it
applies as well to the second track of state environmental programs — efforts to address the
aggregate effects of pollution on minority communities.

       With regard to the permitting tract, the Workgroup strongly recommends that EPA, the states,
and industry embrace the principle that community outreach and dialogue should begin as soon
as possible in the permitting or pre-permitting process (e.g., a netting transaction or
determination to renew, modify, or acquire a new permit). The Workgroup further recommends
that at these initial stages, the siting entity and state environmental agency officials conduct
community outreach to identify parties potentially interested in the decision at issue. Informal
discussions with the community, as well as all state and local officials that may play a role in the
decision, should begin as soon as possible once these parties are identified. (Lang Marsh is
concerned about statutory authority and resource requirements at a state level implied by this
language and may provide new language here.)

       The Workgroup further believes that few constraints should be placed on those initial
discussions. It is especially important to encourage residents who would be directly affected by
the permitting decision to raise the full range of their concerns about the potential impact of the
new or existing facility on their environment, defined in the broadest sense.  Thus, if
communities are concerned that truck traffic will cause an increase in vehicle accidents, or
believe that the siting or expansion of a facility will change property values, they should be
encouraged to put those concerns on the table during these preliminary discussions so  that the
facility's sponsor can consider them.

       The Workgroup recognizes that state officials and facility  sponsors may not agree that the
community's concerns are covered by the environmental permitting process.  We further
understand that state officials and facility sponsors may wish  to draw clear and explicit
distinctions between such open-ended problem-solving and the issues that will be
considered if the parties are unable to reach a voluntary agreement.1 Nevertheless, the
benefits  of reaching early agreements that effectively address the  community's most significant
 ' Will there be any consistency between states for parameters of these agreements?

                                            5
                                                                         000057

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concerns is the best way to prevent the festering of such problems to the point that they provoke
a Title VI complaint.

       It cannot be overemphasized that when we recommend early intervention, we mean just
that. Ideally, a dialogue would begin even before zoning decisions are made to allow
construction or expansion of the facility and would be underway before the permit process
officially begins.  In addition to giving the parties the forum and the flexibility to find solutions
to community concerns, early intervention reduces the possibility that delays will cost industry
time, money, and even a competitive advantage in the siting or expansion of new and existing
facilities. Finally, early intervention keeps the focus on the community's true concerns, rather
than compelling the community to fight a permit on the basis of issues that are less important,
but which may be of great significance to facility sponsors. This is why the committee strongly
recommends a concurrent, more relational, second tract approach.
                                          ',         '      \          '
       As for the second track  of environmental justice programs, the Workgroup believes that over
time, as efforts to address disproportionate pollution burdens in minority communities become
more sophisticated and extensive,- the level of controversy provoked by individual permitting
decisions will recede.  Thus, the second track is important as an alternative to resolution of such
concerns within the permitting  process and hopefully  will be embraced by all stakeholders.

       Members of the Workgroup recognize that pre-identification of adversely affected communities
in the context of the second track may have an impact upon development. Use of the term
"redlining" to  describe this effect may be misleading and is not viewed as helpful.
                                                                   i
       A final issue considered by the Workgroup is the extent to which environmental justice programs
should conduct outreach in communities that have not otherwise indicated concern about
environmental risks.  Should program staff try to educate community residents about
environmental problems, or should they simply develop accessible notification procedures and
terminate  official  consideration of environmental justice concerns if no one — or only a small
number of residents — come forward? '

       The Workgroup agrees that it is not the role of a state environmental justice program to organize
opposition to permitting decisions. However, we also believe that the second track of
environmental programs should proceed even if communities are not demanding change. As
science and technology become more sophisticated and we are able to identify and measure
1  Will it be sufficient here for states or municipalities to develop and disseminate multimedia indicators of
environmental quality?
                                                                          000058

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                                                                                 7
cumulative effects, amelioration of disproportionate burdens will become an integral part of the
overall mission of federal and state environmental agencies, with or without public complaints.

Addressing Cumulative Effects
       Define relevant pollution sources to be addressed by state Title VI programs accurately
       and inclusively, taking into consideration cumulative health and environmental effects.

       As noted above, the Workgroup achieved strong consensus on one crucial point: states
should implement programs that endeavor to assess the cumulative effects on human health and
the environment of all pollution sources, without respect to the constraints of the permitting
process. Under this second track, states would pre-identify communities with a significant
"pollution load" and a minority population, and would work with industry and community
organizations to find methods for decreasing such exposures.  States should also consider
developing compliance outreach, and technical assistance to respond to such situations or special
enforcement if appropriate.

        The Workgroup further agreed that state programs should set priorities among sources, leaving
those that cause relatively minor adverse impacts out of their programs, and tailoring the amount
of scrutiny other sources receive on the basis of substantive criteria.  The development of
"exceptions" and a tiered public participation process would occur primarily in the context of
permit reviews conducted with respect to individual facilities. The Workgroup recognizes that
states process hundreds, even thousands, of permits each year and that it would be impractical,
unreasonable, and unnecessary to require a full environmental justice process for each one.

        Potential criteria suggested by  members of the Workgroup for either  defining exceptions or
applying different levels of procedure  include:
        *      the size of the facility;
        *      the types, amounts, and duration of emissions from the facility;
        *      the amount of unregulated toxic pollutants emitted by the facility;
               the nature of the adverse effects caused by such emissions;
               the nature of the permit at issue: (e.g.. applications for simple renewals could be
               given less scrutiny than applications requesting expansions or the construction of
               a new facility);
               other harms caused by  the facility (e.g.. changed property values, offensive odors,
               infringement of cultural values);
               the size and qualifications of the entity sponsoring the facility;
               the existence of alternative locations for the facility; or
*
                                                                     000059

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       *      significant amount of public controversy (e.g.. the public typically reacts to
              landfills, incinerators, or medical waste disposal facilities with more intensity than
              manufacturing facilities).

       It is crucial to note that the Workgroup did not reach consensus on whether any or
all of these criteria are appropriate, and they are offered for illustrative purposes only. '

       While these two points of consensus are important and noteworthy, the Workgroup did
not reach consensus on two closely related and equally important issues: how should
environmental justice programs take into consideration the cumulative impact of neighboring
sources when making permitting decisions for a single facility?  Should the: process and
procedures of environmental justice analysis differ with respect to new and existing facilities
under permit by permit approach?  (There are a range of tools to identify cumulative impact.
There are also tools for addressing cumulative impact. The "offset" approach is a concept that
they could look at in the tract one approach.  This approach has a number of problems that the
committee is aware of however. In addition, a budget approach is in a tract two (relational).
Identifying remediation strategies. The committee also wishes to acknowledge that these
analyses may involve different scope and intensity of review depending upon whether the facility
is new or making a major mo'dification of their work processes.  We support EPA 's efforts to
develop tools in this regard.   Eileen will work on language in this arena as these are just
exploratory approaches at the present..)2

       The Workgroup has committed to continuing discussion  of  the answers to both
questions, with some members arguing that cumulative effects were an illegal consideration in
permitting any facility under existing environmental law and others arguing that such effects not
only should be considered, but should affect permitting decisions for new and existing facilities
equally.  One member noted that cumulative effects are already a factor in state permitting
decisions under the Clean Water Act because states conduct an assimilative analysis of affected
water bodies, and try to leave room for industrial growth. He acknowledged, however, that the
states' ability to develop remedies that address such effects vary depending on the legal authority
given to the environmental agency under existing  state law.

       Members of the group further disagreed on the concept of zero-based permitting that would
scrutinize permit renewals under the same standards as applications for new permits.  Many
members felt that this approach was either unfair or impractical,  and could not be implemented at
                                                           1          I
'Are we any closer to consensus here?
2 I understand that EPA is presently planning to publish on the internet health modeling data based upon TRI
information about "air pollution." Is any of that work applicable here?

                                            8
                                                                            000060

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the state level without great disruption. But some argued that zero-based permitting was '
fundamental to the elimination of discrimination because it was essential to the reduction of
disproportionate pollution loads.  While the resolution of these issues may be achieved by other
workgroups, we do not believe that it is necessary to achieve consensus in order to design the
aspects of the template that are the mission of Workgroup III.

       Expansion uf Existing Programs
       Expand existing decision making processes to incorporate environmental justice
       issues, rather than creating a new and separate process, while ensuring that decision
       makers address such issues a timely, efficient, and predictable manner.

       The Workgroup strongly  recommends that the first track of state environmental justice
programs — evaluation of environmental justice concerns, raised by individual permit applications
— occur within the existing process for making such decisions. To the maximum extent
practical, the technical review of permit applications should occur concurrently with the
consideration of environmental justice issues, rather than leaving such issues to the tail end of the
process, where they can trump technical review, wasting time and resources.

       The Workgroup recognizes that state laws contain different definitions of state
agency authority with respect to the terms and conditions of environmental permits, with
some statutes granting state agencies the authority to change the standards that apply to a
given facility in order to address cumulative effects. In general, the Workgroup urges state
agencies to define the nature and scope of their authority clearly, both for internal
purposes and for interested parties participating in a mediation process.  However, we did
not address the complicated issue of the extent to which state agencies should seek new
legal authority in order to implement their environmental justice programs. Some
members of the Workgroup felt that adequate legal authority was essential to an effective
program, while others expressed concern about politicizing the process in a legislative
 context. EPA may wish to consider addressing this issue in more detail.  '

       Transparent Process
       Establish a transparent, accessible, honest, and accurate process for public
       participation.
   See comments for reference note #4 here.
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                                                                                         10
                                            !                •         I
       The Workgroup has identified five elements that are essential to the creation of a '
transparent process for public participation in decisions involving environmental justice issues:
       1.     Accessible notification;
              Effective education regarding the legal and technical aspects of industrial
              operations, permitting, and environmental exposures;
              A process that allows community residents to participate in the debate
              comfortably; and
              The development of adequate information to inform participsmts about the
              implications of the decision at issue;
              Clear statements by state agencies explaining the reasons for the decisions made
              with respect to environmental justice issues.
2.
3.
4.
5.
              The Workgroup has attached to this report the public participation guidelines
prepared by the National Environmental Justice Advisory Council (NEJAC), as well as ASTM
E-50.03 — Standard Guide to the Process of Sustainable Brownfields Redevelopment. The
Department of Energy also has within its procurement program a procedure by which businesses
seeking contracts must enter into a constructive dialog with the effect community.  These
documents give helpful guidance to states in achieving these goals.  The Workgroup would make
the following additional recommendations to EPA as it considers this aspect of the template.
                                                                    I
       Notification in newspapers, even those of general distribution, may riot be sufficient to
place affected communities on notice of a permit or other decision making process that will
address environmental justice concerns. The Workgroup believes that such minimal notification
should be supplemented by more aggressive community outreach. For example, New Jersey has
considered placing notices in electric or telephone bills. New Jersey has also established a
community liaison staff who develop an ongoing relationship with minority communities, even
when no decisions are before them. In a similar vein, Oregon is contemplating expanding its
outreach efforts to local churches and community meetings.

       Industry representatives agree that ongoing advisory groups, such as the community advisory
groups established under the chemical industry's Responsible Care program,  could provide
fertile opportunities for consulting with community representatives about environmental justice
issues in a timely and effective manner.

       The Workgroup also recommends that states consider developing citizen education
classes to inform the public about the operation of permit programs, the science of assessing
exposure and risk, and the technical aspects of plant operations and pollution control. Citizens
with this base of knowledge are more likely to participate meaningfully in the consideration of
                                           10
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                                                                                         11
disproportionate burdens and cumulative risk, whether those issue arise in the first or second
track of a state environmental justice program.

       The Workgroup recommends that early efforts to mediate permitting disputes occur in an
informal atmosphere where participants feel comfortable, are encouraged to ask any questions
that occur to them, and are allowed to raise all concerns that are related to the facility's operation.
Early, informal participation may not obviate the need for more formal hearings later in the
process, but we believe that it provides the most promising opportunity for timely resolution of
environmental justice disputes.
       During such deliberations, participants must have access to understandable data
concerning the facility's operations and the likely environmental implications of the permitting
decision.  EPA can assist the states in developing such information through its national databases
that include monitoring and release data, as well  as information about environmental conditions
in the area where the facility is located.               >

       The Workgroup agrees that permit applicants should be asked to develop  additional information
if necessary to supplement materials provided by the government, especially facility-specific
facts such as compliance history, discharges and emissions, and facility processes, including
opportunities for pollution prevention.

       State programs should ensure that important documents are translated into languages
other than English as appropriate. Permit proceedings can involve extensive documentation, and
state agencies should make their best efforts to impose a reasonable burden on permittees.

       Last but not least, the Workgroup believes that state agencies should articulate in writing the
reasoning that underlies their decisions on environmental justice issues, explaining to the
community and the permittee why they reached the resolution they have adopted. (The
committee should think through the process of enforcement and review ability of this process.)

       Participation by Government
       Inform and involve all relevant levels and types of government entities  in the process of
       reviewing actions that may have Title VI implications. It is especially important to
       cooperate with local government officials, including economic development officials.

       The Workgroup recognizes that a hallmark of successful environmental justice programs
 is to avoid extensive delays and inconsistent results as the permit applicant traverses the web of
 state and local agencies that must approve the process. In addition to agencies with regulatory
 authority, other branches of government, such as economic development agencies, are frequently
                                            11
                                                                            000063

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                                                                                         12
involved in planning new or expanded facilities, or in ensuring that existing facilities remain
where they are and prosper.

       The importance of including the permit applicant and community representatives in early
discussions of environmental justice issues is obvious; the significance of involving these other
government entities is too often overlooked. Not only should their involvement prevent
inordinate delays in the decision-making process; it may well make it possible to address
community concerns more directly. For example, residents may be concerned about fire code
issues or the configuration of a highway used by trucks delivering materials to the plant. By
including officials with the authority to rectify such problems, both the permit applicant and the
community may benefit.
       As important as it is to include all relevant state and local officials in the outreach effort,  we
believe that state environmental agencies must remain firmly in charge of the process. Where
possible, environmental justice concerns should be integrated into the permitting process and
handled by the same staff that will conduct a technical review of the permit. However, we
recognize that some states have found it more effective to establish a separate office to address
environmental justice concerns, and we urge EPA to give the states the management flexibility to
adopt the approach that will work best for them.

       Incentives
       Create and identify incentives to address community concerns voluntarily.

       The Workgroup agrees that finding suitable incentives for industry, the public and private
sector, individuals, and small and large businesses to participate in environmental justice
programs is an important condition for their long-term success.  Of course,  states can make such
participation a condition of receiving a permit.  But to the extent that permit applicants can be
convinced that the process  is likely to reduce delays and last-minute "surprises" and will improve
industry relations with adjacent communities, their participation  is likely to prove significantly
more fruitful.
                                                              '
       Avoidance of the extensive delays that accompany the filing  of a Title VI complaint is the
most obvious incentive for industry participation. Another possible  incentive is more rapid
processing of permit applications.  EPA and the states should also consider recognizing efforts to
address community concerns by including such "supplemental projects" as  a term of the permit
that may, when appropriate, lessen the burden imposed by some other permit condition. Finally,
it may prove worthwhile to study emerging brownfield reclamation programs for examples of
incentives that encourage industry participation in an affirmative manner. (The committee will
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seek additional examples of incentives to motivate tract one and tract two sectors. The
Regulatory Reinvention Committee of NACEPT is currently exploring this issue.)

       Community Monitoring
       Build community monitoring capacity.

       The Workgroup recommends that states consider initiatives that allow communities to continue
to assess the compliance of permitted facilities after environmental justice issues have been
resolved.  Building community capacity to monitor permittee performance may prove very
effective in assuaging community anxiety about the health and environmental risks posed by
individual facilities.
                                                   *.
       The Workgroup believes that monitoring and other information reported to the government
 should be readily accessible by the community.

       The Workgroup further believes that consideration should be given to confirming commitments
 made by permit applicants to address environmental justice issues in readily understandable,
 binding contracts with the state agency and the community, giving community representatives
 the assurance that the relief they negotiated is clear to other participants and will in fact be
 delivered.

       The Workgroup did not reach consensus on the question of whether environmental justice
 programs should facilitate the initiation of citizen suits by, for example, adding expanded
 authority for private enforcement to relevant state laws.  Industry and state representatives were
 strongly opposed to the idea that states assist citizen efforts in this direction, while other
 participants felt that citizen enforcement was an important supplement to government authority,
 and would give citizens the sense that they are "empowered" to address future concerns.
 (Additional concerns were raised at the plenary session on how to evaluate the effectiveness of
 such this programming on the impacted communities.)

        Conclusion
        The Workgroup recognizes that EPA has a difficult task ahead in balancing communities'
 need for protection against discriminatory effects, state requests for flexibility, and industry's
 desire for expeditious and predictable decision making.  We believe, however, that this task is of
 the utmost importance and urge EPA to continue to give it high priority.  As one state
 representative put it, the  development of effective environmental justice programs gives
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                                                                                14
government the opportunity to "walk its talk," fulfilling the equitable ideals that are at the heart
of the American system.
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                                                                                          15
                                      APPENDIX
New Jersey has pioneered the development of "one-stop permitting," which allows a facility to
obtain all necessary permits from one central office. In that context, New Jersey is considering a
program that would create three separate procedures for new, modified, and renewal permits. The
first step for all three processes is to put the application through an "justice screen" designed to
determine whether the operations covered by the permit affect a "burdened" community. This
screening  is accomplished by a separate staff that specializes in environmental justice issues.
If the screening concludes that the permit will not burden a minority community, the application
is processed under traditional rules. However, if the screening concludes that the permit will
impose a disproportionate burden, the permit applicant, affected community residents, and other
state and local officials are notified. The permit applicant is then given a choice: it can either
volunteer  to go through a mediation process aimed at resolving environmental justice concerns,
or take the risk that its permit will be denied at the end of the process in order to avoid a Title VI
complaint.                                          »
If the applicant chooses to participate, New Jersey officials undertake an "interest-based
negotiation" that is facilitated by staff experts concurrently with the technical review of the
permit application. The goal of these negotiations, which consider any issue the community
wishes to  raise, are the signing of a "memorandum of understanding" or a "quality of life
document." If the parties cannot agree at this stage of the process, New Jersey would refer the
matter to  a more formal dispute resolution process, in which a mediator attempts to hammer out a
solution that all can accept. If those efforts fail, the state must determine whether there is a
disparate  impact that violates Title VI, requiring it to deny the permit, or whether it should deny
the application. Once again, every effort is made to ensure that the technical review of the permit
proceeds  concurrently with the mediation of environmental justice disputes.
The Workgroup believes that the New Jersey program could provide useful guidance to states in
drafting the details of a process for integrating environmental justice concerns into the normal
permitting process.
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                    INTERIM GUIDANCE FOR INVESTIGATING
                    TITLE VI ADMINISTRATIVE COMPLAINTS
                             CHALLENGING PERMITS
Introduction
This interim guidance is intended to provide a framework for the processing by EPA's Office of
Civil Rights (OCR) of complaints filed under Title VI of the Civil Rights Act of 1964, as amended
(Title VI),1 alleging discriminatory effects resulting from the issuance of pollution control permits
by state and local governmental agencies that receive EPA funding.

In the past, the Title VI complaints filed with EPA typically alleged discrimination in access to
public water and sewerage systems or in employment practices. This interim guidance is intended
to update the Agency's procedural and policy framework to accommodate the increasing number
of Title VI complaints that allege discrimination in the environmental permitting context.

As reflected in this guidance, Title VI environmental permitting cases may have implications for a
diversity of interests, including those of the recipient, the affected community, and the permit
applicant or permittee. EPA believes that robust stakeholder input is an invaluable tool for fully
addressing Title VI issues during the permitting process and informally resolving Title VI
complaints when they arise.

Background

       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.
                                                           -Title VI

On February 11,  1994, President Clinton issued Executive Order 12,898, "Federal Actions To
Address Environmental Justice in Minority Populations and Low-Income Populations."  The
Presidential memorandum accompanying that Order directs Federal agencies to ensure compliance
with the nondiscrimination requirements of Title VI for all Federally-funded programs and
activities that affect human health or the environment. While Title VI is inapplicable to EPA
actions, including EPA's issuance of permits, Section 2-2 of Executive Order 12,898 is designed
to ensure that Federal actions substantially affecting human health or the environment do not have
discriminatory effects based on race, color, or national origin.  Accordingly, EPA is committed to
a.policy of nondiscrimination in its own permitting programs.
         42 U.S.C. §§ 2000dto 2000d-7.
                                               Appendix F: EPA Interim Guidance
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Title VI itself prohibits intentional discrimination.  The Supreme Court has ruled, however, that
Title VI authorizes Federal agencies, including EPA, to adopt implementing regulations that
prohibit discriminatory effects.  Frequently, discrimination results from policies and practices that
are neutral on their face, but have the effect of discriminating? Facially-neutral policies or
practices that result in discriminatory effects violate EPA's Title VI regulations unless it is show
that they are justified and that there is no less discriminatory alternative.

EPA awards grants on an annual basis to many state and local agencies that administer continuing
environmental programs under EPA's statutes. As a condition of receiving funding under EPA's
continuing environmental program grants, recipient agencies must comply with EPA's Title VI
regulations, which are incorporated by reference into the grants. EPA's Title VI regulations
define a 'Trlecipient" as "any state or its political subdivision, any instrumentality of a state or its
political subdivision, any public or private agency, institution, organization, or other entity, or any
person to which Federal financial assistance is extended directly or through another recipient ....'3
Title VI creates for recipients a nOndiscrimination obligation that is contractual in nature in
exchange for accepting Federal funding.  Acceptance of EPA funding creates an obligation on the
recipient to comply with the regulations for as long as any EPA funding is extended"?

Under amendments made to Title VI by the Civil Rights Restoration Act of 1987? a "program" or
"activity" means all of the operations of a department, agency, special purpose district, or other
instrumentality of a state or of a local government, any part of which is extended Federal financial
assistance.6 Therefore, unless expressly exempted from Title VI by Federal statute, all programs
and activities of a department or agency that receives EPA funds are subject to Title VI, including
those programs and activities that are not EPA-funded.  For example, the issuance of permits by
EPA recipients under solid waste programs administered pursuant to  Subtitle D of the Resource
Conservation and Recovery Act (which historically have not been grant-funded by EPA), or the
       2 Department of Justice, Attorney General's Memorandum for Heads of Departments and
Agencies that Provide Federal Financial Assistance, The Use of the Disparate Impact Standard in
Administrative Regulations Under Title VI of the Civil Rights Act of 1964, (July 14, 1994).

       3 40 C.F.R. § 7.25 (1996).  Title VI applies to Indian Tribes as EPA recipients only when
tfae statutory provision authorizing the Federal financial assistance is not exclusively for the
benefit of Tribes. Otherwise, Tribes are exempt from Title VI.
                                                                  j
       4 40 C.F.R. § 7.80(a)(2)(iii)(1996).

       5 Pub. L. No. 100-259, 102 Stat. 28 (1988); S. Rep. No. 64 at 2,  11-16, 100th Cong.,
reprinted in 1988 U.S. Code Cong. & Admin. News at 3-4, 13-18.

       6 42 U.S.C. § 2000d-4a.
                                                                            000069

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actions they take under programs that do not derive their authority from EPA statutes (e.g., state
environmental assessment requirements), are part of a program or activity covered by EPA's Title
VI regulations if the recipient receives any funding from EPA.

In the event that EPA finds discrimination in a recipient's permitting program, and the recipient is
not able to come into compliance voluntarily, EPA is required by its Title VI regulations to initiate
procedures to deny, annul, suspend, or terminate EPA funding.7 EPA also may use any other
means authorized by law to obtain compliance, including referring the matter to the Department
of Justice (DOJ) for litigation.8  In appropriate cases, DOJ may file suit seeking injunctive relief.
Moreover, individuals may file  a private right of action in court to enforce the nondiscrimination
requirements in Title VI or EPA's implementing regulations without exhausting administrative
remedies.9

Overview of Framework for Processing Complaints

While this guidance is directed  at the processing of discriminatory effects allegations, as a general
proposition, Title VI complaints alleging either discriminatory intent and/or discriminatory effect
in the context of environmental permitting will be processed by OCR under EPA's Title VI
regulations at 40 C.F.R. Part 7. The steps that the Agency will follow in complaint processing are
described below. EPA's Title VI regulations encourage the informal resolution of all complaints
with the participation of all affected stakeholders (see step 8 below).

1. Acceptance of the Complaint

Upon receiving a Title VI complaint, OCR will determine whether the complaint states a valid
claim. If it does, the complaint will be accepted for processing within twenty (20) calendar days
of acknowledgment of its receipt, and the complainant and  the EPA recipient will be so notified.
If OCR does not accept the complaint, it will be rejected or, if appropriate, referred to another
Federal agency. 40 C.F.R. § 7.120(d)(l).
        7 40C.F.R. §§7.1l5(e),7.130(b)(1996);Id. at7.110(c).

        8 42 U.S.C. § 2000d-l; 40 C.F.R. § 7.130(a).

        9 Chester Residents Concerned for Quality Living v. Seif No. 97-1125, U.S. App. LEXIS
 36797 (3d Cir. Dec. 30, 1997).
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2. Investigation/Disparate Impact Assessment

Once a complaint is accepted for processing, OCR will conduct a factual investigation to
determine whether the permit(s) at issue will create a disparate impact, or add to an existing
disparate impact, on a racial or ethnic population. If, based on its investigation, OCR concludes
that there is no disparate impact, the complaint will be dismissed. If OCR. makes an initial finding
of a disparate impact, it will notify the recipient and the complainant and seek a response from the
recipient within a specified time period. Under appropriate circumstances, OCR may seek
comment from the recipient, permittee, and/or complainant(s) on preliminary data analyses before
making an initial finding concerning disparate impacts.

3. Rebuttal/Mitigation

The notice of initial finding of a disparate impact will provide the recipient the opportunity to
rebut OCR's finding, propose a plan for mitigating the disparate impact, or to "justify" the
disparate impact (see step 4 below regarding justification). If the recipient successfully rebuts
OCR's finding, or, if the recipient elects to submit a plan for mitigating the disparate impact, and,
based on its review, EPA agrees that the disparate impact will be mitigated sufficiently pursuant
to the plan, the parties will be so notified. Assuming that assurances are provided regarding
implementation of such a mitigation plan, no further action on the complaint will be required.
                                                                   i            '         •  i
4. Justification

If the recipient can neither rebut the initial finding of disparate impact nor develop an acceptable
mitigation plan, then the recipient may seek to demonstrate that it has  a substantial, legitimate
interest that justifies the decision to proceed with the permit notwithstanding the disparate impact.
Even where a  substantial, legitimate justification is proffered, OCR will need to consider whether
it can be shown that there is an alternative that would satisfy the stated interest while eliminating
or mitigating the disparate impact.

5. Preliminary Finding ofNoncompliance
            •• i                              ,                    'l                       '
If the recipient fails to rebut OCR's initial finding of a disparate impact and can neither mitigate
nor justify the disparate impact at  issue, OCR will, within 180 calendar days from the start of the
complaint investigation, send the recipient a written notice of preliminary finding of
noncompliance, with a copy to the grant award official (Award Official) and the Assistant
Attorney General for Civil Rights. OCR's notice may include recommendations for the recipient
to achieve voluntary compliance and, where appropriate, the recipient's right to engage in
voluntary compliance negotiations. 40 C.F.R. § 7.115(c).
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6.  Formal Determination ofNoncompliance

If, within fifty (50) calendar days of receipt of the notice of preliminary finding, the recipient does
not agree to OCR's recommendations or fails to submit a written response demonstrating that
OCR's preliminary finding is incorrect or that voluntary compliance can be achieved through
other steps, OCR will issue a formal written determination of noncompliance, with a copy to the
Award Official and the Assistant Attorney General for Civil Rights. 40 C.F.R.  § 7.115(d).

7.  Voluntary Compliance

The recipient will have ten (10) calendar days from receipt of the formal determination of
noncompliance within which to come into voluntary compliance.  40 C.F.R. § 7.115(e).  If the
recipient fails to  meet this deadline, OCR will start procedures to deny, annul, suspend, or
terminate  EPA assistance in accordance with 40 C.F.R. § 7.130(b) and consider other appropriate
action/including referring the matter to DOJ for litigation.

8.  Informal Resolution

EPA's Title VI regulations call for OCR to pursue informal resolution of administrative
complaints wherever practicable. 40 C.F.R.  § 7.120(d)(2). Therefore, OCR will discuss, at any
point during the  process outlined above, offers by recipients to reach informal resolution, and will,
to the extent appropriate, endeavor to facilitate the informal resolution process  and involvement
of affected stakeholders.  Ordinarily, in the interest of conserving EPA investigative resources for
truly intractable  matters, it will make sense to encourage dialogue at the beginning of the
investigation of complaints accepted for processing. Accordingly, in notifying  a recipient of
acceptance of a complaint for investigation, OCR will encourage the recipient to engage the
complainant(s) in informal resolution in an effort to negotiate a settlement.

Rejecting or Accepting Complaints for Investigation

It is the general policy of OCR to investigate all administrative complaints that  have apparent
merit and are complete or properly  pleaded.  Examples of complaints with no apparent merit
might include those which are so insubstantial or incoherent that they cannot be considered to be
grounded in fact.
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A complete or properly pleaded complaint is:1
                                        .10
'!)
2)
       in writing, signed, and provides an avenue for contacting the signatory
       number, address);
                                                                                 . , phone
                                                                                         •
              describes the alleged discriminatory act(s) that violates EPA's Title VI regulations
              (i.e., an act of intentional discrimination or one that has the effect of discriminating
              on the basis of race, color, or national origin);
       3)     filed within 1 80 calendar days of the alleged discriminatory- act(sj ' ; and

       4)     identifies the EPA recipient that took the alleged discriminatory act(s).

EPA's Title VI regulations contemplate that OCR will make a determination to accept, reject, or
refer (to the appropriate Federal agency) a complaint within twenty (20) calendar days of
acknowledgment of its receipt. 40 C.F.R. § 7.120(d)(l). Whenever possible, within the twenty-
day period, OCR will establish whether the person or entity that took the alleged discriminatory
act is in fact an EPA recipient as defined by 40 C.F.R. § 7.25. If the complaint does not
specifically mention that the alleged discriminatory actor is an EPA financial assistance recipient,
OCR may presume so for the purpose of deciding whether or not to accept the complaint for
further processing.
                                                                   !          •            '
Timeliness of Complaints
                                                                   J                      I!
Under EPA's Title VI regulations a complaint must be filed within 180 calendar days of the
alleged discriminatory act. 40 C.F.R. § 7.120(b)(2). EPA interprets this regulation to mean that
complaints alleging discriminatory effects resulting from issuance of a permit must be filed with '
EPA within 180  calendar days of issuance of the final permit. However, OCR may waive  the
180-day time limit for good cause.  40 C.F.R. § 7.120(b)(2).

OCR will determine on a case-by-case basis whether to waive the time limit for good cause. EPA
believes that, in order to encourage complainants to exhaust administrative remedies
available under the recipient's permit appeal process, thereby fostering early resolution of Title VI
issues, it is appropriate to consider in making a good cause determination a complainant's pursuit
       10 EPA's Title VI regulations require that the complaint be in writing, describe the alleged
discriminatory acts that violate the regulations, and be filed within 180 calendar days of the
alleged discriminatory act(s).  40 C.F.R. § 7.120(b)(l),(2). The criteria listed above satisfy these
regulatory requirements.
                                                                   i
                                          I      ,         |   ,       |
       11 Also, see discussion below on Timeliness of Complaints.
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                                           8

of its Title VI concerns through the recipient's administrative appeal process. Under such
circumstances and after considering other factors relevant to the particular case, OCR may waive
the time limit if the complaint is filed within a reasonable time period (e.g., 60 calendar days) after
the conclusion of the administrative appeal process.

In addition, it is OCR's policy not to reject automatically complaints challenging permits where
such complaints are filed prior to final permit issuance by the recipient Rather, OCR should
provide the recipient with the information  contained in the complaint for consideration in the
permit issuance process. OCR also may notify the complainant that the complaint is premature,
but that OCR is keeping the complaint on file in an inactive status pending issuance of a final
permit by the recipient. Should the recipient issue a final permit, OCR could initiate an
investigation if OCR or the complainant believe that issuance of the final permit may be
discriminatory.

Permit Modifications

EPA believes that permit modifications that reduce adverse impacts and improve the
environmental operation of the facility should be encouraged. Similarly, the Agency does not
want to discourage merely administrative modifications, such as a facility name change, or
otherwise beneficial modifications that are neutral in terms of their impact on human health or the
environment.  Because such modifications do not cause or add to adverse impacts, Title VI
discriminatory effects claims based on them are likely to be dismissed.

Permit modifications that result in a net increase of pollution impacts, however, may provide a
basis for an adverse disparate impact finding, and, accordingly, OCR will not reject or dismiss
complaints associated with permit modifications without an examination of the circumstances to
determine the nature of the modification.

In the permit modification context (as opposed to permit renewals), the matter under
consideration by the recipient is the modified operation. Accordingly, the complaint must allege,
and, to establish a disparate impact OCR must find, adverse impacts specifically associated with
the modification.

Investigations of Allegedly Discriminatory Permit Renewals

 Generally, permit renewals should be treated and analyzed as if they were new facility permits,
 since permit renewal is, by definition, an  occasion to review the overall operations of a permitted
 facility and make any necessary changes.  Generally, pennit renewals are not issued without public
 notice and an opportunity for the public to challenge the propriety of granting a renewal under the
 relevant environmental laws and regulations.
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 Impacts and the Disparate Impact-Analysis
                                                          :
                                                          .     .    I
 Evaluations of disparate impact allegations should be based upon the facts and totality of the
 circumstances that each case presents. Rather than use a single technique for analyzing and
 evaluating disparate impact allegations, OCR will use several techniques within a broad
 framework. Any method of evaluation chosen within that framework must be a reasonably
 reliable indicator of disparity.

 In terms^of the types of impacts that are actionable under Title VI in the permitting context, OCR
 will, until further notice, consider impacts cognizable under the recipient's permitting program in
 determining whether a disparate impact within the meaning of Title VI has occurred. Thus, OCR
 will accept for processing only those Title VI complaints that include at  least an allegation of a
 disparate impact concerning the types of impacts that are relevant under the recipient's permitting
 program.12
                                                              •     i     '
 The general framework for determining whether a disparate impact exists has five basic steps.

       Step 1: Identifying the Affected  Population

 The first step is to identify the population affected by the permit that triggered the complaint. The
 affected population is that which suffers the adverse impacts of the permitted activity. The
 impacts investigated must result from the permit(s) at issue.

 The adverse impacts from permitted facilities are rarely distributed in a predictable and uniform
 manner.  However, proximity to a facility will often be a reasonable indicator of where impacts
 are concentrated. Accordingly, where more precise information is not available, OCR will
 generally use proximity to a facility to identify adversely affected populations. The proximity
 analysis should reflect the environmental medium and impact of concern in the case.
          Even where a recipient's authority to regulate is unclear concerning cumulative burden
or discriminatory permitting pattern scenarios (see step 3 below), OCR will nonetheless consider
impacts measured in these terms because Title VI is a Federal cross-cutting statute that imposes
independent, nondiscrimination requirements on recipients of Federal funds.  As such, Title VI,
separate from and in addition to the strictures of state and local law, both authorizes and requires
recipients to manage their programs in a way that avoids discriminatory cumulative burdens and
distributional patterns.  Thus, while Title VI does not alter the substantive requirements of a
recipient's permitting program, it obligates recipients to implement those requirements in a
nondiscriminatory manner as a condition of receiving Federal funds.
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                                            10

       Step 2: Determining the Demographics of the Affected Population

The second step is to determine the racial and/or ethnic composition of the affected population for
the permitted  facility at issue in the complaint. To do so, OCR uses demographic mapping
technology, such as Geographic Information Systems (GIS). In conducting a typical analysis to
determine the  affected population, OCR generates data estimating the race and/or ethnicity and
density of populations within a certain proximity from a facility or within the distribution pattern
for a release/impact based on scientific models. OCR then identifies and characterizes the affected
population for the facility at issue.  If the affected population for the permit at issue is of the
alleged racial or ethnic group(s) named in" the complaint, then the demographic analysis is
repeated for each facility in the chosen universe(s) of facilities discussed below.

       Step 3: Determining the Universe(s) of Facilities and Total Affected Population(s)

The third step is to identify which other permitted facilities, if any, are to be included in the
analysis and to determine the racial or ethnic composition of the populations affected by those
permits. There may be more-than one appropriate universe of facilities.  OCR will determine the
appropriate universe of facilities based upon the allegations and facts of a particular case.
However, facilities not under the recipient's jurisdiction should not be included in the universe of
facilities examined.

If in its investigation OCR finds that the universe of facilities selected by the complainant is not
supported by  the facts, OCR will explain what it has found and provide the complainant the
opportunity to support the use of its proposed universe. If the complainant cannot adequately
support the proposed universe, then OCR should investigate a universe of facilities based upon
the facts available and OCR's reasonable interpretation of the theory of the case presented. Once
the appropriate universe(s) of facilities is determined, the affected population for each facility in
the universe should be added together to form the Total Affected Population.

 Ordinarily, OCR will entertain cases only in which the permitted facility at issue is one of several
 facilities, which together present a cumulative burden or which reflect a pattern of disparate
 impact.13 EPA recognizes the potential for disparate outcomes in this area because most permits
 control pollution rather than prevent it altogether. Consequently, permits that satisfy the base
 public health and environmental protections contemplated under EPA's programs nonetheless
        13  In some rare instances, EPA may need to determine whether the impacts of a single
 permit, standing alone, may be considered adequate to support a disparate impact claim. While
 such a case has not yet been presented to EPA, it might, for example, involve a permitted activity
 that is unique (i.e., "one of a kind") under a recipient's program.
                                                                                000076

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                                            11

 bear the potential for discriminatory .effects where residual pollution and other cognizable impacts
 are distributed disproportionately to communities with particular racial or ethnic characteristics.
 Based on its experience to date, the Agency believes that this is most likely to be true either where
 an individual permit contributes to or compounds a preexisting burden being shouldered by a
 neighboring community, such that the community's cumulative burden is disproportionate when
 compared with other communities; or where an individual permit is part of a broader pattern
 pursuant to which it has become more likely that certain types of operations, with their
 accompanying burdens, will be permitted in a community with particular racial or ethnic
 characteristics.
                                                            ;         '
       Step 4: Conducting a Disparate Impact Analysis
               ;                             i               . •         i
               ,    ,           '              \       t         i    ,     i  i
 The fourth step is to conduct a disparate impact analysis that, at a minimum, includes comparing
 the racial  or ethnic characteristics within the affected population. It will also likely include
 comparing the racial characteristics of the affected population to the non-affected population.
 This approach can show whether persons protected under Title VI are being impacted at a
 disparate rate. EPA generally would expect the rates of impact for the affected population and
 comparison populations to be relatively comparable under properly implemented programs. Since
 there is no one formula or analysis to be applied, OCR may identify on a case-by-case basis other
 comparisons to determine disparate impact.

       Step 5: Determining the Significance of the Disparity

 The final phase of the analysis is to use arithmetic or statistical analyses to determine whether the
 disparity is significant under Title VI. OCR will use trained statisticians to evaluate disparity
 calculations done by investigators. After calculations are informed by expert opinion, OCR may
 make aprima facie  disparate impact finding, subject to the recipient's opportunity to rebut.

 Mitigation

 EPA expects mitigation to be an important focus in the Title VI process, given the typical interest
of recipients in avoiding more draconian outcomes and the difficulty that many recipients will
encounter in justifying an "unmitigated," but nonetheless disparate, impact. In some
circumstances, it may be possible for the recipient to mitigate public health and environmental
considerations sufficiently to address the disparate impact. The sufficiency of such mitigation
should be evaluated in consultation with experts in the EPA program at issue.  OCR may also
consult with complainants.  Where it is not possible or practicable to mitigate sufficiently the
public health or environmental impacts of a challenged permit, EPA will consider "supplemental
mitigation projects" (SMPs), which, when taken together with other mitigation efforts, may be
viewed by EPA as sufficient to address the disparate impact.  An SMP can, for example, respond
                                                                               000077

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                                            12

to concerns associated with the permitting of the facility raised by the complainant that cannot
otherwise be redressed under Title Vl\i.e., because they are outside those considerations
ordinarily entertained by the permitting authority).

Justification

If a preliminary finding of noncompliance has not been successfully rebutted and the disparate
impact cannot successfully be mitigated, the recipient will have the opportunity to "justify" the
decision to issue the permit notwithstanding the disparate impact, based on the substantial,
legitimate interests of the recipient. While determining what constitutes a sufficient justificatio
will necessarily turn on the facts of the case at hand, OCR would expect that, given the
considerations described above, merely demonstrating that the permit complies with applicable
environmental regulations will not ordinarily be considered a substantial, legitimate justification.
Rather, there must be some articulable value to the recipient in the permitted activity. Because
the interests of a state or local environmental agency are necessarily influenced and informed by
the broader interest of the government of which it is a part., OCR will entertain justifications base
on broader governmental interests (i.e., interests not limited by  the jurisdiction of the recipient
agency). While the sufficiency of the justification will necessarily depend on the facts of the cas
at hand, the types of factors that may bear consideration in assessing sufficiency can include, but
are not limited to, the seriousness of the disparate impact, whether the permit at issue is a renewa
(with demonstrated benefits) or for a new facility (with more speculative benefits), and whether
any of the articulated benefits associated with a permit can be expected to benefit the particular
community that is the subject of the Title VI complaint.

Importantly, a justification offered will not be considered acceptable if it is shown that a less
discriminatory alternative exists. If a less discriminatory alternative is practicable, then the
recipient must implement it to avoid a finding of noncompliance with the regulations.  Less
discriminatory alternatives should be equally effective in meeting the needs addressed by the
challenged practice.  Here, again, mitigation measures should be considered as less discriminatory
alternatives, including additional permit conditions that would lessen or eliminate the
demonstrated adverse disparate impacts.

                             ******
 The statements in this document are intended solely as guidance. This document is not intended,
 nor can it be relied upon, to create any rights  enforceable by any party in litigation with the Unite
 States. EPA may decide to follow the guidance provided in this document, or to act at variance
.with the guidance, based on its analysis of the specific facts presented. This guidance may be
 revised without public notice to reflect changes in EPA's approach to implementing the Small
 Business Regulatory Enforcement Fairness Act or the Regulatory Flexibility Act, or to clarify and
 update text.
                                                                              000078

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                  UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                WASHINGTON, D.C. 204-60


                                   OCT  30  1998
                                                                             OFFICE OF
                                                                            CIVIL RIGHTS
RETURN RECEIPT REQUESTED

Father Phil Schmitter, Co-Director
Sister Joanne Chiaverini, Co-Director
St. Francis Prayer Center
G-2381 East Carpenter Road
Flint, Michigan 48505

Russell Harding, Director
Michigan Department of Environmental Quality
Hollister Building
P.O. Box 30473
Lansing, Michigan 48909-7973

      Re:  EPA File No. 5R-98-R5 (Select Steel Complaint)

Dear Fr. Schmitter, Sr. Chiaverini, and Mr. Harding,

      On August 17, 1998, the Office of Civil Rights (OCR) accepted for investigation an
administrative complaint filed on June 9, 1998 by Father Phil Schmitter and Sister Joanne
Chiaverini pursuant to Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000d
et seq. (Title VI), and EPA's implementing regulations, 40 C.F.R. Part 7.  The complaint alleges
that the Michigan Department of Environmental Quality's (MDEQ) issuance of a Clean Air Act
(CAA) Prevention of Significant Deterioration (PSD) permit to the Select Steel Corporation of
America for a proposed steel recycling mini-mill in Genesee Township would lead to a
discriminatory impact on minority residents and that the MDEQ permitting process was
conducted in a discriminatory manner.  In addition to the allegations contained in the complaint
filed with OCR, the Complainants also submitted written information regarding alleged
discrimination related to the permitting of the proposed Select Steel facility in an April 22, 1998
letter from Fr. Schmitter and Sr. Chiaverini to the Sugar Law Center, an April 29, 1998 letter to
David Ullrich, Acting Regional Administrator for Region V, and a June 9, 1998 petition to EPA's
Environmental Appeals Board (EAB).
                                              Appendix G: "Select Steel  Decision
                                                                            000079
             Recycled/Recyclable « Printed-witti Vegetable Oil Based Inks on 100% Recycled Paper (20% Postconsumer)

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       Title VI prohibits discrimination based on race, color, or national origin under programs
 or activities of recipients of federal financial assistance.  EPA has adopted Title VI implementing
 regulations that prohibit unjustified discriminatory effects which occur under federally-assisted
 programs or activities. 40 C.F.R. Part 7.  Discrimination can result from policies and practices
 that are neutral on their face, but have the effect of discriminating.  Facially neutral policies or
 practices that result in discriminatory effects violate EPA's Title VI regulations unless they are '
justified and there are no less discriminatory alternatives.

       MDEQ is a recipient of EPA financial assistance; therefore, MDEQ is subject to the
 requirements of Title VI and EPA's implementing regulations.  Section 7.35(b) prohibits
 recipients from administering their programs in a manner that would have the effect of subjecting
 individuals to discrimination because of their race, color, or national origin.  Section 7.30 of
 EPA's Title VI regulations provides that no person may be excluded from participation in, be
 denied the benefits of, or be subjected to discrimination under any program or activity receiving
 EPA assistance on the basis of race, color, or national origin.

       The June 9, 1998 Title'VI complaint filed with OCR refers generally to the "unfair and
 disparate burden of pollution [which] will fall on a group of minority .  . . people." However, in
other information provided to EPA in writing and during interviews, the Complainants also raised
 specific concerns  about the facility's potential emissions of volatile organic compounds (VOCs),
lead, air toxics, and dioxin.

       As previously mentioned, OCR accepted the complaint for investigation in August 1998,
and has completed its  review of the allegations raised. In analyzing the Complainants' concerns
 regarding air quality and public health effects, EPA has determined that this facility would not
pose an "adverse" effect on the community.  In this case, EPA did not  base its finding on whether
the effects would  be disparate since the effects did not rise to the level  of "adverse."  After
reviewing all the facts in this case, OCR has found that neither the Complainants' concerns
regarding air quality nor those regarding the opportunity for public participation rise to the level
of a discriminatory effect within the meaning of Title VI and EPA's implementing regulations.
Therefore, OCR dismisses Complainants'  allegations in this case. The  basis for this  determination
is explained below.

The Investigation

       EPA investigated this matter consistent with its Interim Guidance for Investigating Title
VI Administrative Complaints Challenging Permits (Interim Guidance). EPA has attempted to
conduct this investigation expeditiously, taking  into account  the need for certainty in the
regulatory process associated with permitting new facilities, while at the same time seriously
reviewing the concerns expressed by the Complainants.
                                                                               000080

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       EPA's ability to expeditiously render this decision was facilitated significantly by the
record of decision developed by the State in this case. In addition, analyses of the kind credibly
undertaken by the State to address concerns raised during the permitting process not only
substantially enhance the probability that State-issued permits will withstand scrutiny under Title
VI, but also enables expeditious processing by EPA of administrative complaints filed under Title
VI. Such analyses early in the permitting process may also facilitate the State's early
identification and development of possible solutions to address potential Title VI concerns.

Alleged Discriminatory Effect Resulting from Air Quality Impacts

       As outlined in EPA's Interim Guidance, EPA follows five basic steps in its analysis of
allegations of discriminatory effects from a permit decision. "The first step is to identify the
population affected by the permit that triggered the complaint.  The affected population is that
which suffers the adverse impacts of the permitted activity." Interim Guidance at 8.  If there is no
adverse effect from the permitted activity, there can be no finding of a discriminatory effect which
would violate Title VI and EPA's implementing regulations. In order to address the allegation
that MDEQ's issuance of a PSD permit for the proposed Select Steel facility would result in a
discriminatory effect, EPA first considered the potential adverse effect from the permitted facility
using a number of analytical tools consistent with EPA's Interim Guidance. It is important to
note that EPA believes that the evaluations of adverse, disparate impact allegations should be
based upon the facts and totality of the circumstances each case presents.

       VOCs

       To evaluate the impact of VOCs, EPA examined the permit application submitted by
Select Steel and a variety of analyses conducted by MDEQ.  With that information, EPA
considered VOCs in their role both as  precursors to ozone and, for some VOCs, as toxic air
pollutants (see discussion below concerning air toxics).  In examining VOCs as ozone precursors,
EPA studied the additional contribution of VOCs from the proposed Select Steel facility and has
determined those emissions will not affect the area's compliance with the national ambient air
quality standards (NAAQS) for ozone.

       The NAAQS for ozone is a health-based standard which has been set at a level that is
presumptively sufficient to protect public health and allows for an adequate margin of safety for
the population within the area; therefore, there is no affected population which suffers "adverse"
impacts  within the meaning of Title VI resulting from the incremental VOC emissions from the
proposed Select Steel facility.  Therefore, EPA finds no violation of Title VI or EPA's
implementing regulations associated with VOCs as ozone precursors.

       The Complainants also have alleged that failure to require immediate VOC monitoring for
the proposed Select Steel facility will result in a discriminatory effect.  Select Steel's permit
 condition regarding VOC monitoring allows Select Steel one year from plant start-up to
                                                                                000081

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                                                                                           I :
implement a continuous emissions monitoring system ("CEMS") for VOCs.  MDEQ is not
required to prescribe immediate VOC monitoring because EPA's regulations allow the permitting
authority to impose post-construction monitoring as it "determines is necessary." 40 C.F.R. §
52.21(m)(2). As discussed above, there would be no affected population that suffers "adverse"
impacts within the meaning of Title VI resulting from the incremental VOC emissions from the
proposed Select Steel facility. For this reason, EPA finds that, with regard to VOC monitoring,
MDEQ did not violate Title VI or EPA's implementing regulations.

       Lead

       Similarly, to evaluate potential lead emissions from the facility, EPA studied the additional
contribution of airborne lead emissions from the proposed'Select Steel facility and has determined
those emissions will not affect the area's c.ompliance with the NAAQS for lead.  As with ozone,
there is a NA^QS for lead that has been set at a level presumptively sufficient to protect public
health and allows for an adequate margin of safety for the population within the  attainment area.
Therefore, there would be no affected population which suffers "adverse" impacts within the
meaning of Title VI resulting from the incremental lead emissions from the proposed Select Steel
facility. Accordingly, EPA finds no violation of Title VI or EPA's implementing regulations.

       In this case, MDEQ also appropriately considered information concerning the effect of the
proposed facility's lead emissions on blood lead levels in children in response to  community
concerns.  EPA reviewed this information along with other available data on the incidence and
likelihood of elevated blood lead levels in Genesee County, particularly in the vicinity of the site
of the proposed facility. EPA considered this additional information .in response to the
Complainants' concerns that the existing incidence of elevated blood lead levels  in children in the
vicinity of the proposed facility were already high. Overall, EPA found no clear evidence of a
prevalence of pre-existing lead levels of concern in the area most likely to be affected by emissions
from the proposed facility. Furthermore, EPA concurs with the State's finding that lead emissions
from the proposed Select Steel facility would have at most a de minimis incremental  effect on
local mean blood lead levels and the incidence of elevated levels.

       Air Toxics

       For airborne toxics, EPA conducted its review based on information presented in the
permit application, existing TRI data, and MDEQ documents. EPA reviewed MDEQ's analysis
of Select Steel's potential air toxic emissions for evidence of adverse impacts based on whether
resulting airborne concentrations exceeded thresholds of concern under State air toxics
regulations.  EPA also considered the potential Select Steel air toxic emissions together with air
toxic emissions from Toxics Release Inventory (TRI) facilities, the Genesee Power Station,  and
other major sources in the surrounding area. EPA's review of air toxic emissions from  both the
proposed site alone, as well as in combination with other sources, found no "adverse" impact in
                                            4
                                                                                  000082

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the immediate vicii&y of the proposed facility. Therefore, EPA finds no violation of Title VI or
EPA's implementing regulations.

       Dioxin

       The information gathered from the investigation concerning the monitoring of dioxin
emissions is consistent with EAB'3 analysis of the issue.1 No performance specifications for
continuous emissions monitoring systems have been promulgated by EPA to monitor dioxins.
Without a proven monitor, MDEQ was unable to impose a monitoring requirement on the source.
Therefore, EPA finds no discriminatory effect associated with MDEQ's decision not to include
monitoring requirements for dioxin and that MDEQ did not violate Title VI or EPA's
implementing regulations.

Alleged Discriminatory Public Participation Process

       To assess the allegations of discrimination concerning public process, EPA evaluated the
information from interviews with Complainants and MDEQ, and from documents gathered from
the parties. The first allegation was that the permit was "hastily sped through" by MDEQ to
avoid permitting requirements (i.e., conduct a risk assessment; provide opportunity for public
comment on risk assessment; provide meaningful opportunity for all affected parties to participate
in the permit process) imposed by a State trial court that are under appeal. The  five months
between receipt of the complete permit application and permit  approval is actually slower than
the average time of one and a half months for the past twenty-six PSD permits approved by
MDEQ, EPA's review found that the public participation process for the permit was not
compromised by the pace of the permitting process. MDEQ satisfied EPA's regulatory
requirements concerning the issuance of PSD permits.

       The Complainants also alleged that the relationship between an employee of Select Steel's
consultant who is a former MDEQ employee and MDEQ led to improprieties in the permitting
process. Neither the documents nor the interviews revealed any improper or unlawful actions by
MDEQ and Select Steel's consultants during the permitting  of Select Steel.  Without any such
evidence, EPA cannot find any impropriety existed that contributed to an alleged discriminatory
process.
       1 In the EAB's analysis of Complainants' PSD appeal concerning monitoring of dioxin,
 the Board similarly concluded that "MDEQ's decision is not clearly erroneous." In re Select Steel.
 Corporation of America, Docket No. PSD 98-21, at 5 (EAB Sept. 10, 1998). That holding was
 based, in part, on the fact that the Complainants made "no argument and points out no data to
 refute MDEQ's judgment." Id.
                                                                            000083

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       The Complainants alleged that the manner of publication of the notice of the permit
hearing also contributed to the alleged discriminatory process. The Complainants allege that
publication in newspapers was insufficient to inform the predominantly minority community
because few community members have access to newspapers — something the Complainants
allege was brought to MDEQ's attention during the permitting process for another facility in
Genesee Township.  EPA's regulations for PSD permitting require that notice of a public  hearing
must be published in a weekly or daily newspaper within the affected area. 40 C.F.R. §
124.10(c)(2)(i). In this case, MDEQ went beyond the requirements of the regulation and
published notices about the hearing in three local newspapers.

       Complainants also state that MDEQ's failure to provide individual notice of the hearing to
more members of the community also contributed to the alleged discriminatory process. In
addition to newspaper notice, EPA's regulations require that notice be mailed to certain interested
community members. 40 C.F.R.  § 124.10(c)(l)(ix). MDEQ mailed hearing notification letters a
month in advance to Fr. Schmitter,  Sr. Chiaverini, and nine other individuals in the community
who had expressed interest in the Select Steel permit — an action which is consistent with  the
requirements of EPA's regulations. The mailing list that MDEQ developed was adequate  to
inform the community about the public hearing, in part, because the Complainants took it  upon
themselves to contact other members of the community.

       The Complainants also alleged that the location of the public hearing (Mount Morris High
School) made it difficult for minority members of the community to attend. Complainants felt that
the hearing should have been held at Carpenter Road Elementary School.  Both schools are
approximately two miles from the proposed Select Steel site; however, the elementary school is
located in a predominantly minority area, while the high school is in a predominantly white area.2
MDEQ explored  other possible locations and chose the high school, among other reasons,
because of its ability to accommodate the expected number of citizens and its close proximity to
the proposed site. The high school also is accessible by the general public via Genesee County
public transportation.

      For all of these reasons, EPA finds that the public participation process for the Select Steel
facility was not discriminatory or in violation of Title VI or EPA's implementing regulations.

Conclusion

       After reviewing all of the materials submitted and information gathered during the
investigation, EPA has not found a violation of Title VI and EPA's implementing regulations.
       2 No concerns were raised about the manner in which the public hearing itself was
conducted.  See Telephone Interview with Complainants (September 17,  1998).
                                                                             000084

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Accordingly, EPA is dismissing the complaint as of the date of this letter. Please note that the
closure of this case does not affect your right to file a complaint with OCR in the future.

       Although EPA has dismissed this complaint, we believe that the Complainants raised serious
and important issues that merited a careful review. To the extent the Complainants have identified
general concerns about pollution in their community, including existing elevated blood lead levels in
children, EPA encourages the State to continue activities to address these concerns. EPA is available
to provide technical assistance in these efforts. EPA also encourages the State to continue working
with this community to improve understanding of regulated activities in their local environment and
the Agency is available to facilitate these efforts should the parties so desire.
                                                    /
       More broadly,  EPA believes that many  of the issues  raised  in the context of Title VI
administrative  complaints  could be  better addressed through early involvement of affected
communities in the permitting process.  Such consultations will better ensure that communities are
fairly and equitably treated with respect to the quality of their environment and public health, while
providing State and local decision makers and businesses the certainly they deserve.

       In conclusion, please be aware that Title VI provides all persons the right to file complaints
against recipients of federal financial assistance.  No one may intimidate, threaten, coerce, or engage
in other discriminatory conduct against anyone because he  or she  has either taken action  or
participated in an action to secure rights protected under Title VI.  40 C.F.R.  § 7.100. Any individual
alleging such harassment or intimidation may file a complaint.  40 C.F.R. § 7.120(a). The Agency
would seriously consider and investigate such a complaint if warranted by the situation.

       Furthermore, under the Freedom of Information Act, it may be necessary to release this
document and related correspondence and records upon request. In the event that we receive such
a request, we will  seek to protect, to the extent provided by law, personal information which, if
released, could constitute an unwarranted invasion of privacy.
                                   Sincerely,
                                            C-
                                   Ann E. Gbode
                                   Director
 cc:    Mr. Robert Bosar, Vice President
       Dunn Industries Group, Inc.
       7000 Winner Road, Suite 201
       Kansas City, Missouri 64125
                                                                             000085

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Scott Fulton
Acting General Counsel
U.S.EPA

David Ullrich
Acting Regional Administrator
Region V
U.S.EPA
                                                            000086

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       U.S. Environmental Protection Agency
              Office of Civil Rights
           INVESTIGATIVE REPORT
                      for
Title VI Administrative Complaint File No. 5R-98-R5
             (Select Steel Complaint)
                                           000087

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	1	

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I.  INTRODUCTION

On August 17, 1998, the United States Environmental Protection's ("U.S. EPA") Office of Civil
Rights ("OCR") accepted for investigation an administrative complaint filed on June 9, 1998 by
Father Phil Schmitter and Sister Joanne Chiaverini against the Michigan Department of
Environmental Quality ("MDEQ") pursuant to Title VI of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 2000d et seq. ("Title VI"), and EPA's implementing regulations, 40
C.F.R. Part 7. The complaint alleged that MDEQ's issuance of a Clean Air Act ("CAA")
prevention of significant deterioration ("PSD") permit to the Select Steel Corporation of America
for a proposed steel recycling mini-mill in Genesee County would lead to a discriminatory
impact on minority residents and that the MDEQ permitting process was conducted in a
discriminatory manner.  See Letter from Fr. Phil Schmitter and Sr. Joanne Chiaverini, Co-
Directors, St. Francis Prayer Center, to Diane [sic] E. Goode, Director, US EPA OCR (June 9,
1998) ("Title VI Complaint").3

In addition, Fr. Schmitter and Sr. Chiaverini provided information in an earlier letter to Kary
Moss of the Maurice & Jane Sugar Law Center. Letter from Fr. Schmitter and Sr. Chiaverini to
Kary Moss (April 22, 1998). That letter was transmitted to the EPA and it expressed a number of
concerns over the proposed Select Steel facility.
 Fr. Schmitter and Sr. Chiaverini also submitted information regarding alleged discrimination in
 an earlier letter to EPA Region V. Letter from Fr. Schmitter and Sr. Chiaverini to David Ullrich,
 Acting Regional Administrator, EPA Region V (April 29,1998) ("April 29th Letter").  This letter
 enclosed the testimony that Fr. Schmitter and Sr. Chiaverini provided to MDEQ at its April 28,
 1998 public hearing on the proposed Select Steel permit. On May 15, 1998, David Ullrich
 forwarded the April 29th Letter to EPA because it expressed concerns about Title VI matters
 which are the responsibility of EPA to resolve.

 Fr. Schmitter and Sr. Chiaverini also alleged that MDEQ violated Title VI in a June 9, 1998
 petition to EPA's Environmental Appeals Board ("EAB"). Letter from Fr. Schmitter and Sr.
 Chiaverini to EAB (June 9,1998) ("EAB Petition"). The EAB denied review of the Title VI
 claim on jurisdictional grounds citing EPA's responsibility for ensuring Agency compliance with
 Title VI. In re Select Steel Corporation of America, Docket No. PSD 98-21 (Sept. 10, 1998)
 ("EAB Decision").  The EAB also denied review of the other claims regarding the alleged
 deficiencies of the Select Steel permit because the petition identified neither clear error in
        3  The complaint filed by Fr. Schmitter and Sr. Chiaverini is supported by the community
 group Flint-Genesee United for Action, Justice, and Environmental Safety. Letter from Lillian
 Robinson, President, and Janice O'Neal, Spokesperson, Flint-Genesee United for Action, Justice,
 and Environmental Safety, to Patrick Chang, U.S. EPA (August 1, 1998); Telephone Interview
 with Fr. Schmitter, Sr. Chiaverini, and Ms. O'Neal (Sept. 17, 1998).
                                                                            000088

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 MDEQ's decision making processes nor an important policy consideration mat justified EAB
 review. 40 C.F.R. § 124.19(a).

 The MDEQ has received, and continues to receive, EPA financial assistance and, therefore, is
 subject to the requirements of Title VI and EPA's implementing regulations.4
                i                                      ;         I  •    '
        The $2.3 million in air grants for FY98 were awarded by EPA to MDEQ via grant
A005711-98 (awarded on Sept. 30, 1997). There were three amendments: A005711-98-1 (Feb.
3, 1998); A005711-98-2 (April, 24, 1998); and A005711-98-3 (Sept. 21, 1998).
                                                                       000089

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II. ALLEGATIONS

A. Allegation Regarding Air Quality Impacts

In the Title VI Complaint, Fr. Schmitter and Sr. Chiaverini allege that MDEQ's issuance of the
Select Steel permit will result in "grievous discriminatwy
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B. Allegation Regarding Discrimination in Public Participation

       1.  Timing of permit issuance

Complainants felt that the permit was "hastily sped through, and shepherded by the DEQ permit
process" to avoid a potentially adverse decision in ongoing litigation over another facility in the
area, the Genesee Power Station ("GPS").5 Title VI Complaint. In the GPS case, MDEQ
appealed a trial court's order that (1) a risk assessment must be performed before a major air
pollution source may be permitted, (2) notice of the risk assessment and an opportunity to
comment must be provided, and (3) all affected parties must be given a meaningful opportunity
to participate in the permit process. NAACP-Flint Chapter v. MDEQ, No. 95-38228-CV (Mich.
Cir. Ct. Genesee  Cnty. July 28, 1997) (order granting plaintiffs' motion for a permanent
injunction).  Complainants in the Select Steel case, then, argued that MDEQ issued the PSD
permit to Select Steel on an expedited basis to avoid having to perform those tasks in the event
the Court of Appeals upheld the trial court's  decision. See Title VI Complaint; Interview with
Complainants (Sept. 29,1998).

They indicated that the initial news about the proposed Select Steel facility came from an article
published  in The Flint Journal on December  6, 1997. Tom Wickham, Steel Mill Eyes Local Site,
The Flint Journal (December 6, 1997). The story raised some concerns for the Complainants, so
in January or February 1998, they contacted MDEQ's Thermal Process Unit Supervisor. During
the course of that conversation, Complainants allege that the Supervisor said that the Select Steel
permit process would take "a long time." Based on that conversation, Complainants felt that
MDEQ misled them into thinking it would be at least a year until the permit was issued, but it
was ultimately issued four months later, on May 27, 1998, shortly before the June 9, 1998 oral
argument in the GPS case.

       2.  Relationship Between Select Steel and MDEQ

Complainants also believed that the integrity of the permitting process was compromised
because Select Steel retained Dhruman Shah, a former MDEQ employee, as their consultant.
From 1979 to 1995, Mr. Shah was employed by MDEQ in various positions in which he
reviewed permit applications for compliance with state and federal requirements. After leaving
MDEQ, Mr. Shah became a Senior Project Engineer for NTH Consultants, Ltd.  Select Steel
hired NTH Consultants to prepare and submit their PSD application to MDEQ. NTH
       5 Flint-Genesee United for Action, Justice, and Environmental Safety, and the NAACP-
Flint Chapter filed an action in the Circuit Court for the County of Genesee against MDEQ
concerning the issuance of a permit for the construction of GPS, a wood waste fired steam
electric plant. MDEQ appealed.  The Michigan Court of Appeals accepted the case and a stay of
the Circuit Court's decision was issued. NAACP-Flint Chapter v. MDEQ, No. 205-264 (Mich.
Ct. App. Oct. 2, 1997) (ordering stay of permanent injunction pending outcome of appeal).
                                                                            000091

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Consultants, in turn, selected Mr. Shah as one of its engineers on the Select Steel project.
Complainants felt that the relationship between Select Steel's consultant and MDEQ led to some
improprieties in the permitting process. See Telephone Interview with Complainants (Sept. 17,
1998).  .

       3. Notice of Public Hearing

In addition, Complainants raised issues about the notice for the public hearing on the Select Steel
permit application conducted by MDEQ. MDEQ published notices about the public hearing in
The Flint Journal on March 27, 1998 and March 28, 1998, in The Suburban News on March 29,
1998, and in The Genesee County Herald on April 1, 1998. Complainants felt that notifications
published in newspapers were not sufficient to inform their community about the public hearing.
Complainants stated that few members of their community receive newspapers because they
cannot afford to subscribe and because no one would deliver the newspapers to those areas.
Moreover, Complainants alleged that MDEQ was aware of the insufficiency of newspaper notice
because Complainants noted that members of the community did not have ready access to
newspapers during the course of the GPS litigation. See Telephone Interview with Complainants
(Sept. 17, 1998). Consequently, Complainants felt that MDEQ should have done more to notify
the community about the public hearing. See id.

MDEQ mailed letters to some members of the community, including Fr. Schmitter and Sr.
Chiaverini, notifying them about the public hearing. Complainants argued that MDEQ should
have conducted a broader mailing that encompassed larger portions of the community. See id.

       4. Location of Public Hearing

 Complainants also alleged that the  location of the public hearing made it difficult for minority
 members of the community to attend.  MDEQ held the hearing at the Elizabeth Ann Johnson
 (Mount Morris)  High School, 8041 Neff Road, Mount Morris, which is located approximately
 two miles from the site of the proposed facility. Complainants felt that the hearing should have
 been held at Carpenter Road Elementary School, 6901 Webster Road, Flint, Michigan, which is
 also located approximately two miles from the proposed site. See Telephone Interview with
 Complainants (Sept.  17, 1998).  Carpenter Road Elementary School, however, is located south-
 east of the proposed site in a predominantly minority area, whereas Mount Morris High School is
 located north-west of the proposed site in a predominantly white area.6
        6 No concerns were raised about the manner in which the public hearing itself was
  conducted. See Telephone Interview with Complainants (September 17, 1998).
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 HI. METHODOLOGY

 In order to assure that EPA had the necessary information to assess the allegations raised by
 Complainants, the Agency undertook a comprehensive effort to collect data. That effort began
 by gathering all of the information that the Agency had in its possession relevant to the
 complaint. Then, an investigator conducted a telephone interview on September 17, 1998 with
 Complainants, including Fr. Phil Schmitter and Sr. Joanne Chiaverini, Co-Directors, St. Francis
 Prayer Center; Lillian Robinson, President, Flint-Genesee United for Action, Justice, and
 Environmental Safety; and Janice O'Neal, Spokesperson, Flint-Genesee United for Action,
 Justice and Environmental Safety.
             ',,,.'          •               •        ,       :         i
 That was followedrup by a visit to Genesee County, Michigan and another interview with Fr.
 Schmitter, Sr. Chiaverini, and Janice O'Neal on September 29, 1998. That same day,
 investigators conducted an interview with representatives'of the local health department,
 including Brian McKenzie, Jan Hendricks, and Toni McCrumb, Genesee County Health
 Department.  The next day, the investigators collected documents from the Complainants.

 On October 15, 1998, investigators visited Lansing, Michigan and collected documents from
 MDEQ. The next week, on October 21, 1998, investigators returned to Lansing and interviewed
 employees of MDEQ, including Brian Culham, Environmental Quality Analyst, Air Quality
 Division District Office; Dennis Drake, Chief, MDEQ Air Quality Division; Susan Robertson,
 State Assistant Administrator, MDEQ; Hien Nguyen, Permit Engineer, MDEQ; Lynn Fiedler,
 Supervisor, MDEQ Air Quality Division Permit Section; Robert Sills, Toxicologist, MDEQ; and
 Jeff Jaros, Modeling and Meteorology Unit, MDEQ.

 Throughout the information collection effort, EPA was performing analyses on the available
 data. Regarding VOC-related concerns, EPA undertook a  two-pronged approach that considered
 VOCs in their role both as precursors to ozone and, for some VOCs, as hazardous air pollutants.
 For the former approach, EPA examined the surrounding region to determine whether it satisfied
 the federal ambient air quality standards for ozone. Then, the Agency studied the additional
 contribution of ozone precursors from the proposed Select Steel facility to determine how those
 emissions would affect the region's compliance with the National Ambient Air Quality
 Standards ("NAAQS"). For the latter approach, reviewed MDEQ's 'analysis of Select Steel's
potential air toxic emissions for evidence of adverse impacts based on whether resulting airborne
concentrations exceeded thresholds of concern under State air toxics regulations. EPA also
considered the potential Select Steel air toxic emissions together with air toxic emissions from
Toxics Release Inventory facilities, the Genesee Power Station, and other major sources in the
surrounding area.

Similarly, for other hazardous air pollutants, an analysis of the distribution of airborne toxic
emissions was conducted, based on the information presented in the permit application and
MDEQ documents.
                                                                            000093
            Mil1 it  iiiJIiiilli ,

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To evaluate lead emissions, EPA evaluated the contribution of airborne lead from the proposed
facility and the NAAQS for lead. In addition, EPA examined health data from the community
surrounding the proposed facility.  Particular attention was paid to children's lead exposures
based on Complainants' allegation that '"the children of Flint are already 'maxed out' on lead
and are 50% above the national average of lead blood levels for children'." EAB Petition
(quoting Dr. Rebecca Bascomb, M;D.). The Genesee County Health Department submitted
information about blood lead levels in local children. MDEQ provided an analysis of lead
deposition that they conducted in response to comments received during the permitting process.
EPA gathered that data and analyzed it in light of the complaint.

To assess the allegations concerning public process, EPA evaluated the information from
interviews with Complainants and MDEQ, and from documents gathered from the parties. The
Agency then organized the information to determine how the process had been conducted and
whether any problems  arose.
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IV. POSITION STATEMENT FROM THE RECIPIENT

A. Allegation Regarding Air Quality Impacts

MDEQ responded to the Title VI complaint on September 18, 1998. See Michigan Department
of Environmental Quality's Response to the St. Francis Prayer Center Title VI Complaint of June
9, 1998 Regarding Select Steel at 1 (Sept. 18, 1998) ("MDEQ Response to Complaint"). MDEQ
argued that an analysis of the air quality impacts of the proposed Select Steel facility should be
limited to the impacts that fall within one mile of the site.  Beginning from that position, MDEQ
found that the population within 0.5 miles of the site is 88.5-93.1% white and 4.4-7.7% black.
Within one mile, MDEQ found that the population is 93.3-94.3% white and 3.8-4.2% black.
MDEQ stated that inclusion of populations  beyond one mile was "virtually irrelevant." Id. at 2.
MDEQ noted that the 0.5 mile and one mile population number show no disparate impact and
that Michigan*s population is 83.4% white and 13.3% black. In addition, MDEQ argued that
"the levels of pollution emitted by Select'Steel are safe for everyone."7 Id, MDEQ concluded
that "there is no evidence that the.granting of a permit for Select Steel has had any disparate
impact on minorities." Id. at 3.

       1. VOCs

In their EAB petition and in the materials enclosed in the April 29, 1998 letter to EPA Region V,
Fr. Schmitter and Sr. Chiaverini raise concerns that the Select Steel permit will allow VOC
emissions to go unmonitored for the first eighteen months of the mill's operation.  MDEQ felt
that VOC emissions would not pose a problem. The Permit Engineer believed that VOC
emissions frorn the proposed facility would be comparable to VOC emissions from one-gallon of
paint. See Interview with Hien Nguyen (Oct. 21,1998).

       2. Lead

In their EAB petition, Fr. Schmitter and Sr.  Chiaverini alleged that Select Steel's permit was
deficient because it lacks a monitoring requirement for lead. In response to the EAB Petition,
MDEQ stated the technology that would allow continuous monitoring of lead emissions does not
exist. In the absenc.e of such technology, MDEQ chose to ensure Select Steel's compliance with
the lead emissions limit by requiring the company to install a baghouse for the melt-shop that
MDEQ determined satisfies the requirements of best available control technology ("BACT").
             ,:    ,                                                j
MDEQ determined that "even with the addition of the lead proposed to be emitted by Select
Steel, the lead concentrations would be more than ten times lower than the National Ambient Air
Quality Standards" of 1.5 micrograms per cubic meter (quarterly average). Response of the
       7 MDEQ noted, "'Safe' does not mean risk free," citing Natural Resources Defense
Council v. U.S. EPA, 824 F.2d 1146 (D.C. Cir. 1987). MDEQ Response to Complaint at 2 n.2.
                                                                          000095

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Michigan Department of Environmental Quality to the Petition of the St. Francis Prayer Center at
2, In re Select Steel Corporation of America, Docket No. PSD 98-21 (Aug. 19, 1998) ("MDEQ
Response to PSD Appeal").

In the materials enclosed in the April 29, 1998 letter to EPA Region V, Fr. Schmitter and Sr.
Chiaverini alleged that blood lead levels in children living in the vicinity of the proposed steel
mill are already 'maxed out' on lead and are 50% above the national average of lead blood levels
for children." EAB Petition at 1.  In response, MDEQ, however, cites a blood lead level study it
conducted that indicates the "level of concern" for lead is 10  micrograms per deciliter ("^g/dL").
Robert Sills, MDEQ, Evaluation of the Potential Dry Deposition and Children's Exposures to
Lead Emissions from the Proposed Select Steel Facility, at 2  (May 15, 1998) ("BLL Study"). At
blood leadJevels above this threshold, children's development and behavior may be adversely
affected.  See id.

MDEQ stated that it conducted the BLL Study to estimate the potential for air deposition of lead
from Select Steel into soil around, the proposed facility. MDEQ estimated background levels of
lead in air and soils and combined those figures with three different estimates of the amount of
lead present in house dust (high, medium, and low). MDEQ  then analyzed the differences
between children's environmental lead exposure under these  three scenarios, in each instance
comparing current estimated background blood lead levels (alternative "a") to estimated blood
lead levels after adding in Select Steel's projected emissions  (alternative "b").  See id.

       3. Manganese

In the permit application, Select Steel proposed a manganese emission limit of 0.24 Ib/hr which
resulted in ambient air impacts greater than the initial threshold screening level (ITSL) of
Michigan Air Toxics Rule 230. Mich. Admin. Code r. 336.1230 ("Air toxics from new and
modified sources").  The ITSL for manganese is 0.05 micrograms per cubic meter on a 24 hour
basis. MDEQ notified Select Steel of this deficiency in a letter dated February 5, 1998. To
correct this deficiency, Select Steel proposed to enclose the roof monitor above the electric arc
furnace ("EAF"), and install a hood and vent the captured emissions to the EAF baghouse.
Letter from John F. Caudell, NTH Consultants, to Hien Nguyen, MDEQ (Feb.  20, 1998). The
size of the baghouse was increased from 350,000 actual cubic feet per minute ("acfm") to
400,000 acfm to accommodate the added flow from the new hood.  In addition to the added
control equipment, MDEQ imposed a BACT emission limit of 0.054 Ibs/hr based on stack test
data contained in another permit application (Republic Steel). The proposed changes resulted in
a maximum impact on the ambient air of 0.03 micrograms per cubic meter, which is below the
level specified by the State of Michigan as protective of human health for manganese.  Air
Quality Division, MDEQ, Select Steel Corporation of America, Ouestions-and-Answers
Document, at 2 (April 28, 1998).  MDEQ felt that those requirements for manganese from steel
and iron mills are very strict. Interview with Hien Nguyen (Oct. 21, 1998).
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       4. Mercury

MDEQ stated that as a result of public comments, it requested additional analysis of mercury
emissions. Briefing on Select Steel Air Use Permit (undated); Interview with Dennis Drake (Oct.
21, 1998). Because the facility is in the Mott Lake Watershed and could impact mercury levels
in fish, the analysis supported the reduction of the mercury emission limit from 0.05 pound per
hour in the draft permit to 0.005 pound per hour in the final permit. MDEQ personnel indicated
that the mercury emission limit is the lowest of any permit issued for mini-mills and noted that
most permits in EPA's Best Available Control Technology/Lowest Achievable Emissions Rate
(BACT/LAER) Clearinghouse have no mercury limits at all. Interview with Hien Nguyen (Oct.
21,1998).

       5. Dioxin

In their EAB petition and in the materials enclosed in the April 29, 1998 letter to EPA Region V,
Fr.  Schmitter and Sr. Chiaverini alleged that the permit allows dioxin emissions to be
unmonitored for the first eighteen months of the mill's operation.  MDEQ responded that it did
not require dioxin monitoring, because continuous emissions monitoring systems ("CEMS") for
dioxin do not exist. MDEQ Response to PSD Appeal at 6.  MDEQ also claimed that EPA
conducted research on American electric arc furnaces and concluded that dioxin emissions are
not a concern in the operation of such furnaces.  EPA reportedly found that American electric arc
furnaces do not use chlorinated solvents in the melting process, that the electric arc furnaces are
operated at very high temperatures, and that radiant heat from electricity (rather than coke
combustion) is used to melt the scrap metal.8  MDEQ Response to PSD Appeal at 7; Air Quality
Division, MDEQ, Select Steel Corporation of America, Response to Comments Document at 8
(May 27, 1998).

B.  Allegation Regarding Discrimination in Public Participation

       1. Timing of permit issuance

MDEQ argues that Complainants' allegation that it accelerated the issuance of the permit in
order to avoid consequences of a potentially adverse decision the GPS case is incorrect because
(1) the Circuit Court's decision in the GPS case "expressly dismissed all disparate impact claims
against the MDEQ" and (2) the Michigan Court of Appeals stayed the Circuit Court's decision
pending the outcome of the appeal. MDEQ Response to Complaint at 1.
       ?  The U.S. EPA has stated, in part, "No testing of CDD/CDF emissions from U.S.
electric arc furnaces has been reported upon which to base an estimate of national emissions."
Exposure Analysis and Risk Characterization Group, U.S. EPA, The Inventory of Sources of
Dioxin in the United States, at 7-14 (April 1998).
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In addition, according to MDEQ staff, the five months that lapsed between the submission of the
permit application and the issuance of the permit was fairly typical.  Among the last twenty-six
PSD permits approved by MDEQ, the" average time between receipt of the application and
approval of the permit was 242 days. The average time between the receipt of a complete
application and approval was only 49 days. Message transmitted by facsimile from Lynn Fiedler
to Richard Ida, at 4 (Oct. 28, 1998) (providing table of PSD permit processing times for last three
years).

       2. Relationship Between Select Steel and MDEQ

Some MDEQ employees, including Dennis Drake, Director, MDEQ Air Quality Division, noted
their awareness of Mr. Shah's job with NTH Consultants, but were not aware that Mr. Shah was
involved in the Select Steel application.  Interviews with Dennis Drake and Robert Sills (October
21,1998). Those MDEQ employees who knew about Mr. Shah's role in developing the Select
Steel permit, including the Permit Engineer and Thermal Process Unit Supervisor, stated that no
special treatment was given to Mr. Shah or to the Select Steel permit application.  Interview with
Hien Nguyen and Lynn Fiedler (October 21, 1998).

       3. Notice of Public Hearing

MDEQ argued that it went beyond the requirements of the regulation and published notices about
the hearing in three local newspapers: The Flint Journal on March 26, 1998, and March 27,
1998; The Suburban News on March 29,1998; and The Genesee County Herald on April 1,
1998. Regarding direct notification about the hearing, MDEQ limited its mailings because they
believed that Fr. Schmitter and Sr. Chiaverini would act as the contact point for their community
and alert other interested parties about the proceedings. Interview with Lynn Fiedler (Oct. 21,
1998).

       4. Location of Public Hearing

To select a site for the public hearing, MDEQ considered a number of criteria: (1) proximity to
proposed facility, (2) sufficient capacity for attendees, (3) rental cost, (4) other accommodation-
related considerations (e.g., lighting, acoustics, adjacent rooms), and (5) availability. Interviews
with Lynn Fiedler and Brian Culham (Oct. 21, 1998). For the public hearing on the Select Steel
permit application, MDEQ expected up to 200 attendees, which limited the possible venues for
the hearing. Interview with Susan Robertson (Oct. 21,1998).

A MDEQ memorandum indicates that "there would be ... a public hearing in the local area -
either Carpenter Road school or another school close to the facility." Memorandum from Lynn
Fiedler to the file (Dec. 8, 1997). The Air Quality Division Hearing Officer indicated that the
first location she contacted was the Carpenter Road School.  Other MDEQ employees felt that
Carpenter Road School did not have adequate facilities for the Select Steel public hearing.
Interviews with Brian Culham and Lynn Fiedler (Oct. 23, 1998). MDEQ also contacted the
                                           11
                                                                           000098

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Beecher High School and its feeder schools. Telephone Interview with Judy Williams, Parent
Involvement Coordinator, Beecher School District (Oct. 26, 1998). MDEQ felt that the
administration of those schools seemed averse to hosting a controversial hearing. Interviews
with Susan Robertson and Lynn Fiedler (Oct. 21,1998).  MDEQ ultimately held the public
Bearing at Mount Morris High School, approximately two miles from the proposed facility,
which they believed was a reasonable site. Interview with Lynn Fiedler (Oct. 21, 1998).
                                          12
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V. FINDINGS OF FACT AND STATUTORY/REGULATORY PROGRAMS

A. Allegation Regarding Air Qualify Impacts

       1.  Background

              a. Proposed Select Steel Corporation of America Facility

The proposed Select Steel facility is a steel mini-mill which is expected to produce 43 tons per
hour of specialty steels. It will process scrap steel by "melting the scrap" in an electric arc
furnace. The liquid steel is then transferred into a ladle furnace where it is reheated and
chemically adjusted to required specifications.  The molten steel is then cast and water-cooled in
a mold to the desired shape.

The proposed Select Steel facility will be- located near the boundary of census tract 122.01 within
a 53 acre land parcel at the southwest comer of the intersection of Lewis Road and East Stanley
Road, in Genesee County, Michigan, 48485.  The facility will be located in Genesee County, Air
Quality Control Region 122, see 40 C.F.R. § 81.195, less than one mile from the northern
boundary of the city of Flint, Michigan at a latitude of 43 ° 6 "9" and longitude of 83 ° 40' 48".

The Select Steel facility is a major stationary source with the "potential to emit" 100 tons per
year or more of the criteria pollutants, oxides of nitrogen ("NOx"), carbon monoxide ("CO"),
particulate matter ("PM"), and lead.  The facility is subject to the PSD regulations, 40 C.F.R..§
52.21, which require the installation of BACT for the four pollutants mentioned above. The
facility is also subject to MDEQ rule 702 and 230 which requires the installation of B ACT for
VOC's.

The Select Steel Corporation of America submitted its initial PSD permit application under the
Clean Air Act to MDEQ for the proposed mini-mill on December 30, 1997. MDEQ reviewed
the application and sent a letter of deficiencies in the permit application on February 5, 1998, and
requested additional information be submitted. Select Steel submitted their response on February
20, 1998.  Changes and selection of BACTs for the criteria pollutants were made, including
provisions to address the ambient air impacts of toxic air contaminants as required by MDEQ
rule 230.  Select Steel selected BACT for PM/PM10, NOx, CO, and VOCs. EPA reviewed the
permit and supporting information (e.g., staff report, BACT analysis, previous BACT
determinations) and submitted comments during the public comment period.  MDEQ approved
the Select Steel permit on May 27, 1998.

              b. Proximate Population Characteristics

In the 1990 Census, the total population of Michigan was 9,295,297 with 17.6 % minority
population. The complaint alleges that minority populations within 3 miles of the proposed
 Select Steel will bear a "disparate impact of pollution." At one mile from a point location

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                                                                           000100

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representing the approximate center of the facility land parcel, the population is 13.8% minority,
at two miles it is 37.2% minority, at 3 miles it is 51.1% minority, at 4 miles it is 55.2% minority.
See Table II: EPA Estimates of Population Characteristics Near Proposed Site.

              c.  Air Quality Regulatory Programs

                    i.  Overview of National Ambient Air Quality Standards

The Clean Air Act ("CAA") requires the Administrator of U.S. EPA to publish primary and
secondary NAAQS for criteria air pollutants.  Section 109 of the CAA, 42 U.S .C. § 7409.
NAAQS are health-based standards which are established by the Administrator as necessary to
"protect the public health" and must allow for an adequate margin of safety.  Section 109(b) of
the CAA, 42 U.S.C.§7409(b).

Under section 107(d) of CAA, 42 U.S.C.-§ 7407(d), each state is required to designate those
areas within its boundaries where the air quality meets or does not meet the NAAQS for each
listed pollutant, or where the air quality cannot be classified due to insufficient data
("unclassifiable"). An area that meets the NAAQS for a particular pollutant is termed an
"attainment" area, and an area that does not is termed a "nonattainment" area. Among the listed
criteria air pollutants are ozone and lead.

NAAQS, when met, provide public health protection with an adequate margin of safety,
including protection for group(s) identified as being sensitive to the adverse effects of the
NAAQS pollutants.  EPA recognizes that there is no discernible threshold of physiological
effects identified for any of the NAAQS pollutants and that there  is a wide variability of
responsiveness among individuals. EPA further recognizes, however, that setting of the NAAQS
ultimately requires public health policy judgments  of the Agency as to when physiological
effects become medically significant and a matter of public health concern.

                     ii. Overview of Prevention of Significant Deterioration (PSD)
                     Standards
                                                                  I

The Clean Air Act's PSD program applies to all areas  of the country designated as "attainment"
or "unclassifiable" relative to the NAAQS. CAA section 161,42 U.S.C. § 7471. Genesee
County is classified as an attainment area for all criteria pollutants except ozone. Genesee
County was initially designated as a nonattainment area for the old 1-hour ozone standard. 43
fed. Reg. 8962 (March  3, 1978); 45 Fed. Reg.  37188  (June 2, 1980). Genesee County
demonstrated compliance with the old 1-hour ozone standard based upon three years of air
quality data. 63 Fed. Reg.  31014 (June 5, 1998).  In practical terms, this means  that the old
classification of "nonattainment" has been superseded by a determination that Genesee County
was meeting the old ozone standard.
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                                                                            000101

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Under the Clean Air Act, each state must include a PSD program in its state implementation
plan. CAA sections 110(a)(2)(C) and_161; 42 U.S.C. §§ 7410(a)(2)(C) and 7471. Among other
things, a PSD program must ensure that new major stationary sources employ the best available
control technology to minimize the emissions of regulated pollutants. 42 U.S.C. § 7475(a)(4); 40
C.F.R. §§ 52.21(j)(2) and 51.166(j)(2). The statute gives permitting authorities substantial
discretion to determine BACT in a manner consistent with the environmental protection goals of
the PSD program, requiring consideration of "energy, environmental, and economic impacts."
CAA section 169(3); 42 U.S.C. § 7469(3).

If a state does not submit an approvable PSD program, the federal PSD regulations at 40 C.F.R. §
52.21 governing permit issuance apply. EPA may in turn delegate its authority to the state to
issue federal PSD permits. See 40 C.F.R. § 52.2l(u). Whether EPA or a delegated state actually
issues the permit, the appeal of a federal PSD permit is governed by the regulations at 40 C.F.R.
Part 124.

Because Michigan's state implementation plan lacks an approved PSD program, the applicable
requirements governing  the issuance and appeal of PSD permits in Michigan are the federal PSD
regulations at 40 C.F.R.  § 52.21 and Part 124.  See 40 C.F.R. § 52.1180. On September 10,
1979, pursuant to 40 C.F.R. § 52.21(u), EPA Region V delegated its authority to implement and
enforce the federal PSD  program to the State of Michigan. See 45 Fed. Reg. 8348 (1980).
Although EPA Region V delegated administration of the PSD program in Michigan to the State,
PSD permits issued by MDEQ follow the requirements in 40 C.F.R. § 52.21 and Part 124.

Having delegated its authority to administer the federal PSD program to Michigan, the
relationship between EPA Region V and the MDEQ is an arms-length one. EPA Region V
exercises careful oversight of the PSD program by reviewing permit applications and
commenting where appropriate. Where the state issues a deficient permit, EPA Region V may
appeal the permit to the Environmental Appeals Board.

The proposed Select Steel facility is a major stationary source with the "potential to emit" 100
tons per year or more of a regulated pollutant.  In addition, the facility is proposed to exceed the
"significant emission rate" as defined in the federal regulations for NOx, CO, PM, and lead. See
40  C.F.R. § 52.21(b)(23). Since Genesee County is designated attainment for these pollutants,
the Select Steel facility is subject to PSD review for these pollutants. 40 C.F.R. § 52.21(i). The
.proposed Select Steel facility also has the potential to emit 38 tons per year of VOCs and sulfur
dioxide. These levels of emissions are not considered "significant" under the PSD regulations.
40  C.F.R. § 52.21 (b)(23). As a result, the facility need not undergo PSD review for these
pollutants.
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Select Steel submitted a BACT analysis as part of its December 30, 1997 PSD permit
application. The analysis included a "top down" approach consisting of five steps to evaluate
and determine BACT:

       1. Identify all control technologies;
       2. Eliminate technically infeasible options;
       3. Rank remaining control technologies;
       4. Evaluate most effective controls and document results; and
       5. Select BACT.

       2. Specific Criteria Pollutants of Concern

Air dispersion modeling was conducted by the Select Steel facility to support a December 1997
PSD permit application filed with MDEQ.  Some changes were made to the permit at the request
of MDEQ, and subsequent modeling was conducted by MDEQ.  The air quality model and the
methodology used followed the recommendations in EPA's Guideline on Air Quality Models
(Revised), codified at 40 C.F.R.'F&tt 51, Appendix W.  The modeling conducted for the criteria
pollutants (i.e., NOx, SO2, PM10, and CO) showed predicted impacts well below the NAAQS.
            ''„'„!                     ,   '' "                  ' .      II               "
             •                "'           .                   .      i ' j               „:
The largest point of particulate air releases at the plant will occur at the electric arc furnace air
pollution control equipment, described as the electric arc furnace or "melt shop" baghouse.  Most
fugitive emissions occurring within this area are captured and ducted to the baghouse for
treatment. Other sources of criteria pollutants in the facility include: the lime silo; the baghouse
dust silo; the boiler and the reheat furnace; nearby sources including the ladle dryer, preheaters,
and dump station; tundish dump area, and material handling operation baghouses; and fugitive
emissions from roads and the slagging operations. The location of the baghouse in at the
northeast corner of melt shop. Carbon monoxide and VOC emissions will occur primarily at the
output of the direct evacuation system canopy exhaust.

              a. Volatile Organic Compounds

                    i. General Information
             ,                ,           ,          'I               | '• j
Volatile organic compounds are common reactive hydrocarbons which, together with nitrogen
dxides, form ozone. The formation of ozone is a complex function of emissions and
meteorological patterns and is the result of two coupled processes: (1) a physical process
involving the dispersion and transport of the precursors (i.e., VOCs and NOX); and (2) the
photochemical reaction itself. Both processes are strongly influenced by meteorological  factors
such as dispersion, solar radiation, temperature, and humidity. At ground-level, ozone is the
prime ingredient of smog.

Short-term (1-3 hours) and prolonged (6-8 hours) exposures to ambient ozone concentrations
have been linked to a number of health effects of concern. For example, increased hospital

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admissions and emergency room visits for respiratory causes have been associated with ambient
ozone exposures.

Exposures to ozone can make people more susceptible to respiratory infection, result in lung
inflammation and aggravate preexisting respiratory diseases such as asthma. Other health effects
attributed to short-term and prolonged exposures to ozone, generally while individuals are
engaged in moderate or heavy exertion, include significant decreases in lung function and
increased respiratory symptoms such as chest pain and cough. Children active outdoors during
the summer when ozone levels are at their highest are most at risk of experiencing such effects.
Other at-risk groups include outdoor workers, individuals with preexisting respiratory diseases
such as asthma and chronic obstructive lung disease, and individuals who are unusually
responsive to ozone. In addition, long-term exposures to ozone present the possibility of
irreversible changes in the lungs which could lead to premature aging of the lungs and/or chronic
respiratory illnesses. See  U.S. EPA, National Air Pollutant Emission Trends, 1900-1996,
EPA-454/R-97-011  (1997) ("Trends Report").

EPA promulgated a new NAAQS for ozone on July 18,  1997 (62 Fed. Reg. 38856).  The new
ozone standard is set at 0.08 parts per million and is calculated over an 8-hour averaging period.
It replaces the old ozone standard of 0.125 parts per million based on a 1-hour averaging period.

Genesee County was initially designated as a nonattainment area for the old 1-hour ozone
standard. 43 Fed. Reg. 8962 (March 3,1978);  45 Fed. Reg. 37188 (June 2, 1980). Genesee
County demonstrated  compliance with the old 1-hour ozone standard based upon three years of
air quality data.  63  Fed. Reg. 31014 (June 5, 1998). In  practical terms,  this means that the old
classification of "nonattainment" has been superseded by a determination that Genesee County
was meeting the old ozone standard.

On July 18, 1997, EPA established  a new standard, effective on September 16, 1997, based on an
8-hour average.  62 Fed. Reg. 38856 (July 18, 1997). EPA examined recent air monitoring data
(from 1995-97) from Genesee County in the context of investigating this complaint and has
determined that Genesee  County is  also currently meeting the new 8-hour ozone standard
(although official designations will  not be made until the year 2000 and will be based on
monitoring data from  1997, 1998, and 1999).

                     ii.  Select Steel Permit Conditions for VOCs

The proposed Select Steel facility's potential to emit VOC's is not considered "significant" under
the PSD regulations.  However, the proposed facility is  also subject to MDEQ rules 702 and 230
which requires the installation of BACT for VOCs.

 In response to MDEQ concerns set forth in the deficiency letter of February 5, 1998, Select Steel
 reviewed additional information in  EPA's Best Available Control Technology/Lowest
 Achievable Emissions Rate (BACT/LAER) Clearinghouse ("the Clearinghouse") and found an
                                           17
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 emission factor lower than initially proposed in the permit application. As a result of this
 finding, the VOC emission estimate was lowered to 32 ton/yr from the electric arc furnace.
 Additional controls to reduce carbon monoxide emissions will also serve to reduce VOC
 emissions. MDEQ approved the BACT determination in permit condition 19. EPA Region V
 did not object to the BACT determination.

 The permit issued by MDEQ gives Select Steel one year from plant start-up to implement a
 continuous emissions monitoring system ("CEMS") for VOCs. The regulations give the
 permitting authority discretion in implementation of post construction monitoring. 40 C.F.R.  §
 52,21(m)(2). Pre-application monitoring of VOCs is not mandatory because Select Steel's
 potential to emit is less than the significance level, but MDEQ nonetheless retains authority
 under the federal PSD program to require post-construction monitoring of VOCs. 40 C.F.R. §
 52.21(m)(l)(i)(a), (m)(2).  Such monitoring can be required if the permitting authority
 determines it necessary to  track the effect VOC emissions may have or are having on air quality
 40 C.F.R. § 52.2l(m)(2).

              b. Lead
                     i. General Information
                 .1 i                                                 i
Lead accumulates in the blood, bones, and soft tissues and can also adversely affect the kidneys,
liver, nervous system, and other organs. Excessive exposure to lead may cause neurological
impairments such as seizures, mental retardation, and/or behavioral disorders.  Even at relatively
low doses lead exposure is associated with changes in fundamental enzymatic, energy transfer,
and homeostatic mechanisms in the body, and fetuses and children may suffer from central
nervous system damage.  Recent studies show that lead may be a factor in high blood pressure
and subsequent heart disease and also indicate that neurobehavioral changes may result from lead
exposure during a child's first years of life. See Trends Report.

In its 1978 final decision of the lead NAAQS, EPA estimated a maximum safe blood lead level
and stated, "... the Agency should not attempt to place the standard,at a level estimated to be at
the threshold for adverse health effects but should set the standard at a lower level in order to
provide a margin of safety. EPA believes that the extent of the margin of safety represents a
judgment in which the Agency considers the severity of reported health effects, the probability
that such effects may occur, and uncertainties as to the full biological significance of exposure to
lead." 43 Fed. Reg. 46247 (Oct.  5, 1978).
                                                                  !
                                                                  i  '
Since the lead NAAQS was set in 1978, ambient air concentrations of lead have declined by 97
percent, which tracks well with the decline of 98 percent in overall emissions since 1975.  See
Trends Report.  Most decreases in emissions were the result of the phase-out of leaded gasoline.
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                    ii. Select Steel Permit Conditions for Lead

The significance threshold for lead emissions under PSD is 0.6 tons per year ("tpy"). The
proposed Select Steel facility's controlled maximum lead emissions based on continuous
operations would be 0.66 tpy, and would thus be significant for purposes of PSD. Select Steel
concluded that 2.8% of the particulate emissions from the electric arc would be lead. MDEQ
chose to ensure Select Steel's compliance with the lead emissions limit by requiring the company
to install a baghouse for the melt-shop that MDEQ determined satisfies BACT. The permit also
mandates monitoring of baghouse operating parameters to ensure proper functioning,
performance of a stack test to verify that lead emissions do not exceed the permit limit, visible
emissions monitoring, and several maintenance and contingency measures.  The lead BACT
emission limit of 0.15 pounds per hour was approved by MDEQ in permit condition 18.
                                                   /
                    iii. Other Local Assessments of Lead in the Environment

In its review, MDEQ conducted an analysis of the impact of lead emissions from the proposed
facility in addition to the NAAQS determination. This analysis assessed the impact on children
who might be exposed to soil .or household dust whose concentrations of lead would increase as a
result of atmospheric emissions. MDEQ conducted this analysis based on issues raised during
the permit public comment period and at the public hearing, MDEQ Response to PSD Appeal at
2, and published the results in its ELL Study, dated May 15, 1998.

The MDEQ analysis used a model of exposure to lead from several pathways (inhalation as well
as ingestion of soil, house dust and water) to predict what fraction  of a hypothetical group of
children would have elevated blood lead levels under both baseline (existing) conditions and
with the increase of emissions resulting from the operations of the  proposed facility. EPA
reviewed the MDEQ analysis of the predicted baseline incidence of elevated blood lead levels,
and the incremental increase  predicted to result from the new facility.

EPA, in addition to reviewing the assumptions used in the MDEQ  lead modeling, also reviewed
other available data on the incidence and likelihood of elevated blood lead levels in Genesee
County, particularly in the vicinity of the site of the proposed  facility. EPA conducted this
additional review to respond  to Complainant's concerns that the existing incidence of elevated
blood lead levels in children  in the vicinity of the proposed facility were already high.  See EAB
Petition at 1.
                     iv. Background on Lead Exposures and Levels of Concern

Human exposure to lead now occurs mainly through ingestion of lead in household dust, water,
food, and soil, as well as inhalation. Currently, the most likely pathways of lead exposure in
young children are ingestion of interior house dust.  A significant immediate source of lead in
soil and dust is from deteriorating paint used before 1978, especially if unprotected renovation or
remodeling activities have been conducted.  Lead in exterior soils may migrate indoors on
                                           19
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residents' clothing and via winds. Other major historical sources of lead in soils include
deteriorating exterior paint and rainwater runoff from structures, as well as atmospheric
deposition from industry or historical use of leaded gasoline.
            , •                            i           - •             |  ;

The Centers for Disease Control and Prevention (CDC) and EPA have identified a blood lead
concentration of 10 /^g/dL as a level of concern for sensitive populations (in particular young
children) and have established health policy goals to limit the risk that young children would
have blood lead levels above this value.  According to the most recent CDC estimates, 890,000
U.S. children age 1-5 (or approximately 4.4% overall) have elevated blood lead levels, while
more than one-fifth of Africaa-American children living in housing built before 1946 have
elevated blood lead levels.
  1               i        ,        '        <                   ,i      ,1 i ':
                    v. Impacts from Proposed Facility - MDEQ's Lead
                    Dispersion/Deposition Modeling
                                                                  i  i
Using estimates of the modeled atmospheric concentrations of lead, the ELL Study assessed the
likely impact of deposition of lead to nearby soil. MDEQ estimated background levels of lead in
air and soils and combined those figures with three different estimates of the amottnt of 4ead
already present in house dust (high, medium, and low). MDEQ then analyzed the differences
between children's environmental lead exposure under these three scenarios using the Integrated
Exposure Uptake Biokinetic Model for Lead in Children ("IEUBK"). In each scenario, MDEQ
compared current estimated background blood lead levels (scenario alternative "a") to estimated
blood lead levels after adding in Select Steel's projected emissions (scenario alternative "b").
MDEQ's findings are presented in Table 4 of the BLL Study.

                    vi. IEUBK Model

As previously mentioned, the MDEQ BLL Study attempts to predict blood-lead concentrations
(blood lead levels) for children exposed to lead in their environment. The model allows the user
to input relevant absorption parameters (e.g., the fraction of lead  absorbed from water), as well as
rates for intake and exposure. Using these inputs, the IEUBK then rapidly calculates and
recalculates a complex  set of equations to estimate the potential concentration of lead in the
blood for a hypothetical child or population of children (six months to seven years).
                                                            "      !  '
The IEUBK estimates exposure using age-weighted parameters for intake of food, water, soil,
and dust. The model simulates continual growth under constant exposure levels (on a
year-to-year basis).  In  addition, the model also simulates lead uptake, distribution within the
body, and elimination from the body.

The IEUBK is intended to:
             li •          "                                           i  !

        Estimate a typical child's long-term exposure to lead in and around his/her residence
        based on inputs concerning  the presence of lead in various environmental media;
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       Provide an accurate estimate of the geometric average blood lead concentration for a
       typical child aged six months to seven years;

       Provide a basis for estimating the risk of elevated blood lead concentration for a
       hypothetical child;

       Predict likely changes in the risk of elevated blood lead concentration from exposure to
       soil, dust, water, or air following activities which might increase or decrease such
       exposure.

A site-specific risk assessment requires information on soil and dust lead concentrations for the
particular site in question.  Variables affecting any consideration of lead exposure from soil and
dust include: soil to indoor dust transfer; ingestion parameters for soil and dust (i.e., how much
soil or dust a typical child may ingest or inhale over a set period of time); and the amount of lead
that can be absorbed from the soil. The model is quite sensitive to these parameters-that is,
changing one variable can significantly affect the results. The IEUBK is designed to facilitate
calculating the risk of elevated blood lead levels, and is helpful in demonstrating how results
may change under different assumptions of inputs.

                     vii.  MDEQ Inputs to the IEUBK Model

In its analysis, MDEQ used the point of maximum off-site atmospheric quarterly average
concentration estimated to occur from lead releases from Select Steel. This maximum
concentration point was located within about a hundred meters south and west from the facility
fenceline, generally in an area listed on as U.S. Geological Survey ("USGS") map as being
occupied by waste ponds.  This level was used to estimate the dry deposition to  soil, and in
subsequent modeling of the potential effects on a population of children which were assessed as
if they were exposed to soils containing the deposited lead at the maximum level.

The deposition estimate involved multiplying the quarterly maximum ambient lead
concentration, determined by dispersion modeling, by a dry deposition velocity. The deposition
velocity assumed was 5 centimeters per second.  Although the preferable approach for
calculating deposition flux values is through the  use of the Industrial Source Complex ("ISC")
model, the velocity assumed in the MDEQ seems reasonable and is comparable to a settling
velocity for lead calculated using equation 1-55 in Volume II of the User's Guide for the
Industrial Source Complex ("ISC2") Dispersion  Models (a velocity of 6.8 cm/s  can be calculated
using the conservative assumption that all the particles were 10 microns in diameter). Wet
deposition was not considered in MDEQ's assessment apparently due to the lack of precipitation
data.  Wet deposition can account for a significant portion of the total deposition with impacts
often occurring much closer to the facility than the dry deposition impacts. The modeling of soil
and air impacts methodology detailed in the MDEQ report is reasonable as an estimation of dry
deposition of lead.
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The BLL Study estimated the deposition rate at the point of maximum concentration, and
assumed a constant deposition at that rate over a 30 year period. After mixing with the top 1 cm
of soil, this would increase the estimated soil lead concentration by about 14 parts per million
("ppm"). At further distances and directions from the facility emission source, the predicted
concentration and deposition would decrease, so the estimate of deposition at inhabited areas
may be somewhat less.
                     viii. Results of the MDEQIEUBK Model
                                                                    i
The BLL Study found that the blood lead impacts from the facility would be small. The
maximum air lead concentrations from the facility were estimated to result in changes in
geometric mean (typical) blood lead levels of about 0.1 /ug/dL. EPA's review identifies some
refinements that would be appropriate in similar model applications in the future. However, EPA
concurs that the predicted impacts on blood lead levels would be small.

       3. Overview of Air Toxics

The CAA and state programs provide protection against the effects of toxic air pollutants. Title
III of the CAA identifies 189 hazardous air pollutants ("HAPs") and establishes a regulatory
program to control HAP emissions from many industrial sources, the federal program also
controls air toxics from mobile sources and from area sources in urban areas. In addition,
individual states, including Michigan, have developed and implemented air toxics legislation and
regulatory programs.

EPA promulgates regulations for HAPs under section 112 of the CAA. 42 U.S.C. § 7412. This
federal air toxics program requires maximum  achievable control technology ("MACT") in its
first phase and an assessment and control of residual risk remaining after the application of
MACT.  Those provisions, however, are not applicable to the proposed Select Steel facility. For
section 112, the source category (electric arc furnaces) that includes steel recycling mini-mills
Was delisted because "there are no existing facilities which qualify as a major source,"9 61 Fed.
Reg. 28,197 (1996), and, as a result, those sources will not be regulated under section 112.
Section 129 only concerns solid waste incineration units, see 42 U.S.C. § 7429(a), and would not
apply to Select Steel.

Michigan's Rule 230 requires permit applicants to install best available control technology for
certain sources of air toxics ("T-BACT") and  to perform a modeling analysis and compare those
results with the initial  risk screening levels. Rule 230 also allows MDEQ to establish a lower
maximum emission limit if they determine T-BACT does not protect the public or the
environment adequately.
       9 A major source is a stationary source "that emits or has the potential to emit considering
controls, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per
year or more of any combination of hazardous air pollutants."  42 U.S.C. § 7412(a)(l).
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Potential emissions of toxic air contaminants were estimated by Select Steel using the average
emission factors from similar facilities previously issued permits by the MDEQ and the Air and
Waste Management Association compilation of baghouse dust compositions. Toxic air
contaminants associated with mini-mills include metals and toxic components of VOCs. The
toxic metals of concern were identified in the permit application to be cadmium, chromium,
manganese, mercury, and nickel.

Modeling done by Select Steel's consultant indicated that the ground level impacts of air toxics
were below the MDEQ screening levels for all air toxics of concern except manganese. As a
result of the MDEQ review and public comment, permit changes were made to further reduce the
emissions and impact of two of air toxics of concern to Complainants, namely manganese and
mercury.
                                                   i
              a.  Select Steel Permit Conditions for Manganese

After the Select Steel permit application was submitted, additional stack test data was submitted
to MDEQ in another permit application for Republic Steel (also a proposed steel mini mill)
which indicated manganese emissions may be lower than previously predicted.  Based on this
information, a revised lower emission rate of 0.05 Ib/hr was established for Select Steel. This
emission limit along with closing the roof monitor and additional hooding resulted in predicted
ambient air impacts below the MDEQ screening levels. The revised emission limit of 0.05
pounds per hour was approved by MDEQ as T-BACT in permit condition 25.

               b. Select Steel Permit Conditions for Mercury

After an MDEQ review of other sources of data including the Ohio EPA's stack testing database,
MDEQ determined that the prospective mercury emission levels outlined in the permit
application were not representative of T-BACT. In a letter dated April 24, 1998, Select Steel
agreed to reduce the mercury emission limits by a factor of 10. The draft permit was changed
 and the emission rate for mercury was lowered from 0.05 pound per hour to 0.005 pound per
hour. The exhaust gas concentrations for mercury were also reduced by a factor of 10 to 3.84
 micrograms/dscf, as specified in permit condition 25. In addition, permit condition 51 was added
 to require a further assessment of the impact of mercury emissions from the facility on the Mott
 Lake watershed, unless source testing reveals that the mercury emissions are less than 0.0004
 Ibs/hr.

               c. Other Air toxics

 To assess air toxics emissions from the proposed Select Steel facility, EPA assessed both the
 facility's air toxics emissions, as well as the existing level of air toxics in the surrounding area.
 Data on other sources of air toxics comes from EPA's Toxics Release Inventory ("TRI").
                                            23
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                                                                                         , l :;«,
The facilities Deporting to the 1996 Toxics Release Inventory (U.S. EPA 1998) are currently
those facilities, which are manufacturing facilities in Standard Industrial Classification ("SIC")
codes 20-39 and employ at least 10 pe'ople. They must report annual releases and transfers of
chemicals which are on the TRI list and which are manufactured, processed or otherwise used
above threshold amounts.  TRI reports include separate information on releases to each
environmental medium (e.g., air,  water, land) and offsite transfers for treatment or disposal, as
well as chemicals recycled, used in energy recovery, and present in waste streams.  The list of
chemicals subject to reporting in  1996 (the most recent year for which data are available)
included approximately 650 chemicals and chemical classes. The TRI database contains a wide
range of manufacturing facility types, including chemical, rubber, plastics, and petroleum
refineries, food processing (e.g., sugar refineries), electronics manufacturing, and other
miscellaneous facilities, such as soft drink bottling facilities. Many sources of air toxics,
including small sources (e.g., dry cleaners or gasoline service stations) and non-manufacturing
sources (e.g., waste treatment facilities and energy generation plants) were not required to report
even if they met the chemical quantity thresholds.

Should the Select Steel facility operate, it is expected to report  to TRI.  Sixteen TRI facilities are
located withing 12 miles from the approximate center of the proposed Select Steel facility. Two
had zero air releases reported to TRI in 1996; therefore they were not included in the modeling
analysis.
   !              •                    -                              |

       4.  Dioxin Monitoring

              a. General Information

Chlorinated dibenzp-/7-dioxins and related compounds (commonly known simply as dioxins) are
contaminants present in a variety of environmental media. Human studies demonstrate that
exposure to dioxin and related compounds is associated with subtle biochemical  and biological
changes whose clinical significance is as yet unknown and with chloracne, a serious skin
condition associated with these and similar organic chemicals.  Laboratory studies suggest the
probability that exposure to dioxin-like compounds may be associated with other serious health
effects including cancer.

EPA promulgates regulations for dioxin emissions under sections 112 and 129 of the Clean Air
Act. 42 U.S.C. §§ 7412, 7429. Those provisions, however, are not applicable to the proposed
Select Steel facility. For section  112, the source category that includes steel recycling mini-mills
was delisted because "there are no existing facilities which qualify as a major source," 61 Fed.
Reg. 28,197 (1996), and, as a result, those sources are not expected to be regulated at this time
under section 112. Section 129 only concerns solid waste incineration units, see 42 U.S.C. §
7429(a), and would not apply to Select Steel.

In addition, EPA has no emissions data for American mini-mills to either support or contradict
MDEQ's belief. A recent inventory of dioxin sources indicates that information has not yet been
                                           24
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developed to determine whether dioxin is a pollutant of concern from facilities like Select Steel.
Exposure Analysis and Risk Characterization Group, U.S. EPA, The Inventory of Sources of
Dioxin in the United States, at 7-14 (April 1998)..

To the extent that any regulations may be applicable to dioxin in other circumstances, no
continuous emission monitoring system has been proven for use with dioxin by EPA. See 40
C.F.R. Parts 60, 61, 63, and 64.

             b. Select Steel Permit Conditions for Dioxin

The permit contains no monitoring or any other requirement for dioxin.
                                          25
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B. Allegation Regarding Discrimination in Public Participation

According to EPA's regulations for issuance of PSD permits, 40 C.F.R. Part 124, Subpart A,
MDEQ is required to provide public notice that a draft permit has been prepared, 40 C.F.R. §
124.10(a)(l)(ii), with at least 30 days for public comment.  40 C.F.R. § 124.10(b). In addition,
MDEQ must hold a public hearing whenever they find a significant degree of public interest
based on requests for a hearing. 40 C.F.R. § 124.12(a). Public notice of the hearing must be
given at least 30 days prior to the hearing.  40 C.F.R. § 124.10(b)(2). That notice must be
provided by (1) mailing a copy of the notice to certain interested parties, (2) publishing in a
weekly or daily newspaper within the affected area, and (3) any other method reasonably
calculated to give actual notice. 40 C.F.R. § 124.10(c).

In this case, MDEQ published notices about the draft permit in The Flint Journal on March 26,
1998, and March 27, 1998, in The Suburban News on March 29, 1998, and in The Genesee
County Herald on April 1, 1998. In the same notices, MDEQ indicated that a public hearing
would be held on April 28,1998, beginning at 7:00 p.m. at the Mount Morris High School.  ML
Morris High School is located approximately two miles from the proposed site. MDEQ also
mailed the notice to Fr. Schmitter, Sr. Chiaverini, and several other individuals in the community
who had expressed interest in the permit.

The permit applicant, Select Steel, and local government officials also held two informational
meetings prior to MDEQ's public hearing. The first was held February 12, 1998, at Kearsley
High School, 4302 Underbill Drive, Flint, Michigan, and the second was held February 19, 1998,
at Mount Morris High School. These meetings were not required by any state or federal statute
or regulation, and were held without the participation of MDEQ.
                                           26
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VI. ANALYSIS AND RECOMMENDED DETERMINATION

A. Allegation Regarding Air Quality Impacts

The environmental laws that EPA and the states administer generally do not prohibit pollution
outright; rather, they treat some level of pollution as "acceptable" when pollution sources are
regulated under individual, facility-specific permits, recognizing society's demand for such
things as power plants, waste treatment systems, and manufacturing facilities. In effect,
Congress—and, by extension, society—has made a judgment that some level of pollution and
possible associated risk should be tolerated for the good of all, in order for Americans to enjoy
the benefits of a modern society—to have electricity, heat in our homes, and the products we use
to clean our dishes or manufacture our wares. Similarly, society recognizes that we need
facilities to treat and dispose of wastes from our homes and businesses (such as landfills to
dispose of our trash and treatment works to treat our sewage), despite the fact that these
operations also result in some pollution releases. The expectation and belief of the regulators is
that, assuming that facilities comply with their permit limits and terms, the allowed pollution
levels are  acceptable and low enough to be protective of most Americans.

EPA and the states have promulgated a wide series of regulations to effectuate these protections.
Some of these regulations are based on assessment of public health risks associated with certain
levels of pollution in the ambient environment.  The NAAQS established under the Clean Air
Act (CAA) are an example of this kind of health-based ambient standard setting. Air quality that
adheres to such standards is presumptively protective of public health. Other standards are
"technology-based," requiring installation of pollution control equipment which has been
determined to be appropriate in view of pollution reduction goals. In the case of hazardous air
pollutants under the CAA, EPA sets technology-based standards for industrial sources of toxic
air pollution. The maximum achievable control technology standards under the Clean Air Act
are examples of this kind of technology-based standard setting. After the application of
technology-based standards, an assessment of the remaining or residual risk is undertaken and
additional controls implemented where needed.10
       10 Clean Air Act § 112(f)(2)(A)(l) states ". . . If standards promulgated pursuant to
subsection (d) and applicable to a category or subcategory of sources emitting a pollutant (or
pollutants) classified as a known, probable or possible human carcinogen do not reduce lifetime
excess cancer risks to the individual most exposed to emissions from a source in the category or
subcategory to less than one in one million, the Administrator shall promulgate standards under
this subsection for such category."  42 U.S.C.  § 7412(f)(2)(A)(l).
                                           27
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Title VI and EPA's implementing regulations11 set out a requirement independent of the
environmental statutes that all recipients of EPA financial assistance ensure that they implement
their environmental programs in a manner that does not have a discriminatory effect based on
race, color, or national origin. If recipients of EPA funding are found to have implemented their
EPA-delegated or authorized federal environmental programs (e.g., permitting programs) in a
manner which distributes the otherwise acceptable residual pollution or other effects in ways that
result in a harmful concentration of those effects in racial or ethnic communities,12 then a finding
of an adverse disparate impact on those communities within the meaning of Title VI may,
depending on the circumstances, be appropriate.

Importantly, to be actionable under Title VI, an impact must be both "adverse" and "disparate."
The determination of whether the distribution of effects from regulated sources to racial or ethnic
communities |s "adverse" within the meaning of Title VI will necessarily turn on the facts and
circumstances of each case and the nature of the environmental regulation designed to afford
protection. As the United States Supreme Court stated in the case of Alexander v. Choate, 469
U.S. 287 (1985), the inquiry for federal agencies under Title VI is to identify the sort of disparate
impacts upon racial or ethnic groups which constitute "sufficiently significant social problems,
and [are] readily enough remediable, to warrant altering the practices of the federal grantees that
had produced those impacts." Id. at 293-94 (emphasis added).
                               I,     "      !      ,    .,. •      '„ .      ,|  I                  'i ••

The complaint in this case raises air quality concerns regarding several NAAQS-covered
pollutants, as well as several other pollutants. With respect to the NAAQS-covered pollutants,
and as explained more fully below, EPA believes that where, as here, an air quality concern is
raised regarding a pollutant regulated pursuant to an ambient, health-based standard, and where
the area in question is in compliance with, and will continue after the operation of the challenged
facility to comply with, that standard, the air quality in the surrounding community is
presumptively protective and emissions of that pollutant should not be viewed as "adverse"
within the meaning of Title VI.  By establishing an ambient, public health threshold, standards
like the NAAQS contemplate multiple source contributions and establish a protective limit on
cumulative emissions that should ordinarily prevent an adverse air quality impact.
       11 Title VI of the Civil Rights Act of 1964, as amended, provides that "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 assistance."  42 U.S.C. section 2000d et seq.  EPA's Title VI
implementing regulations provide that recipients of EPA financial assistance "shall not use
criteria or methods of administering its program which have the effect of subjecting individuals
to discrimination" because of their race, color, or national origin. 40 C.F.R. § 7.35(b)
                                                                   |  i                   i
       12 For example, scenarios involving the combined impacts of multiple pollutants, multiple
pathways, and multiple plants.
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With respect to the pollutants of concern in the complaint which are not covered by the NAAQS,
Title VI calls for an examination of whether those pollutants have become so concentrated in a
racial or ethnic community that the addition of a new source will pose a harm to that community.
Because EPA has determined that there is no "adverse" impact for anyone living in the vicinity
of the facility, it is unnecessary to reach the question of whether the impacts are "disparate."

       1. Volatile Organic Substances

             a. VOCs as Ozone Precursor

Based on the information that was made available, EPA technical experts determined that
MDEQ's regulatory modeling was generally conducted in accordance with EPA's Guideline on
Air Quality Models. The proposed maximum allowable emissions for VOCs from the proposed
Select Steel facility are 38.5 tpy. Sources with potential VOC emissions of less than 40 tons per
year are not considered a significant source under federal PSD regulations. 40 C.F.R. §
52.21(b)(23)(i).

Genesee County has been effectively determined to  meet the NAAQS for ozone (the pollutant of
concern from VOC emissions) for both the old 1-hour standard and the new 8-hour standard. See
63 Fed. Reg. 31014 (June 5, 1998). Select Steel's maximum modeled impacts from the criteria
pollutants of concern to the Complainants are below the NAAQS.  In particular, for ozone, the
proposed Select Steel facility's emissions are not expected to cause an increase in concentrations
above a level deemed presumptively protective of public health. Accordingly, since the NAAQS
for ozone is a health-based standard, which has been set at a level necessary to protect public
health and allows for an adequate margin of safety for the population within the attainment area,
there "would be no affected population that suffers "adverse" impacts within the meaning of Title
VI resulting from the incremental VOC emissions from the proposed Select Steel facility.  For
this reason, with regard to VOC emissions as ozone precursors,  it is recommended that EPA find
that MDEQ did not violate Title VI or EPA's implementing regulations.

              b.  VOC  Monitoring

In response to the Complainants' allegation that the permit allows VOC emissions to go
unmonitored for the first eighteen months of the mill's operation, the EAB found that this  was
"somewhat of a misreading of the permit." EAB Decision at 5.  Permit condition 33 allows
Select Steel to operate for one and possibly up to two years before it must begin VOC
monitoring. MDEQ stated that because Select Steel's potential to emit VOCs is not significant,
"VOC emissions monitoring is not required under federal law." MDEQ Response at 7. The
EAB found that statement, while "technically true, is [was] somewhat misleading." EAB
Decision at 5. The EAB stated that "pre-application monitoring of VOCs is not mandatory
because Select Steel's potential to emit is less than the significance level, but MDEQ nonetheless
retains authority under the federal PSD program to require post-construction monitoring of
VOCs.  See 40 C.F.R. § 52.21(m)(l)(i)(a), (m)(2). Such monitoring can be required if the
                                           29
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permitting authority determines it necessary to track the effect VOC emissions may have or are
having on air quality. 40 C.F.R. § 52.21 (m)(2)." Id. at 6.

MDEQ's permit condition regarding VOC monitoring allows Select Steel one year from plant
start-up to implement a GEMS for VOCs.. However, Select Steel may choose to install an
alternative monitoring system, called "parametric monitoring," instead of the CEMS.  If Select
Steel does so, MDEQ must first review, test, and accept the system. If MDEQ rejects the
parametric system, the permit states that Select Steel must install CEMS within two years of
plant start-up.  The EAB noted that "MDEQ does not explain why Select Steel is given up to two
years to bring VOC emissions monitoring on-line.  However, the regulations give the permitting
authority discretion in implementation. 40 C.F.R. § 52.21(m)(2)."  EAB Decision at 6.

MDEQ is not required to prescribe immediate VOC monitoring because EPA's regulations allow
the permitting authority to impose post-construction monitoring as it "determines is necessary."
40 C.F.R. § 52.21(m)(2). Moreover, as discussed elsewhere, there would be no affected
population that suffers "adverse" impacts within the meaning of Title VI resulting from the
incremental VOC emissions from the proposed Select Steel facility.  For these reasons, it is
recommended that EPA find that, with regard to VOC monitoring, MDEQ did not violate Title
VI or EPA's implementing regulations.

       2. Lead

Genesee County has been determined to meet the NAAQS for lead. Based on the available
information, EPA technical experts determined that MDEQ's lead modeling was generally
conducted in accordance with EPA's Guideline on Air Quality Models.  Overall, the maximum
predicted impacts from the Select Steel facility are generally very close in to the facility; either at
or near the fenceline.

The significance threshold for lead emissions under PSD is 0.6 tpy. The proposed Select Steel
facility maximum lead emissions based on continuous operations would be 0.66 tpy, and would
thus be significant for purposes of PSD. MDEQ chose to ensure Select  Steel's compliance with
the permit's lead emissions limit of 0.15 pounds per hour by requiring the company to install a
baghouse that MDEQ determined satisfied BACT.

Select Steel's maximum modeled impacts from lead are below the NAAQS. Accordingly, the
proposed Select Steel facility emissions are not expected to cause an increase in lead
concentrations above a level deemed presumptively protective of public health.  Since the
NAAQS for lead is a health-based standard which has been set at a level necessary to protect
public health and allows for an adequate margin of safety for the population within the
attainment area, there would no affected population that suffers "adverse" impacts within the
meaning of Title VI resulting from the incremental lead emissions from the proposed Select Steel
facility.  As discussed more fully below, EPA's analysis of data on blood lead levels in the
vicinity of the facility does not suggest a different conclusion.  For these reasons,  it is
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recommended that EPA find that, with regard to lead emissions, MDEQ did not violate Title VI
or EPA's implementing regulations.

             a.  EPA's Review of the MDEQ ELL Study

In response to public concerns about lead in the local environment, MDEQ appropriately
undertook an examination of children's blood lead levels in the area. EPA found that the BLL
Study was a conscientious attempt to address the impact of air emissions from the facility on
children's blood lead levels and that MDEQ's use of the IEUBK model in the report was
generally applied in a reasonable manner. EPA determined that MDEQ did not explicitly
consider one particular pathway of exposure, namely the additional lead in house dust directly
resulting from increased lead concentrations in the atmosphere (i.e., from emissions by proposed
facility), but this fact did not affect EPA's conclusions regarding the integrity of the study.

EPA reviewed the MDEQ IEUBK report's conclusions, including the assertion that "the
modeling of blood lead levels under these scenarios demonstrated little or no differences due to
the proposed facility's maximum potential impact, for each scenario." BLL Study at 9. EPA
concurs that any impacts would be small and found no reason to conclude that these results were
not valid.  Based on the available information concerning the releases, the additional deposits of
lead in soil and dust from Select Steel are likely to have a de minimis incremental effect on local
mean blood lead levels and the incidence of elevated levels.

             b.  EPA's Review of Other Available Data on the Incidence and Likelihood of
             Elevated Blood Lead Levels in Genesee County

As previously mentioned, EPA also reviewed other available data on the incidence and
likelihood of elevated blood lead levels in Genesee County, particularly in the vicinity of the site
of the proposed facility, in view of complainant's concerns that the existing incidence of elevated
blood lead levels in children in the vicinity of the proposed facility were already high. EAB
Petition at 1.

EPA reviewed available county health data for children with measured elevated lead levels. The
overall county average in 1997 was approximately 8%.  In zip code 48458, which contains the
site of the proposed facility and the expected maximum ambient lead concentration resulting
from plant emissions, the incidence rate above 10 Mg/dL in 1997 was about 3%, which is similar
to the CDC estimate for the national average (4.4%).

In addition, EPA reviewed more specific geographic information than the zip code area totals
because zip code areas are relatively large and may contain areas of high and low incidence
which together combine in an average.  For example, in 1995, when the Genesee County Health
Department offered free testing to residents in the neighborhood of the Genesee Power Station
facility at the Carpenter Road School, twenty-nine children under age 15 were tested, and none
were found to have elevated levels of lead.
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Further, EPA assessed another indicator of elevated lead levels: age of housing.  The HUD
national survey of lead in housing found a correlation among lead in interior house dust, the
presence of lead paint, and age of housing (e.g., built prior to 1950) (CDC, Screening Young
Children for Lead Poisoning, 1997). While the presence of older housing units has been
identified as an indicator of elevated blood lead levels, there is no explicit guidance as to the
proportions which would be of concern. Interpreting these data can be informed by recent
guidance on what levels might warrant a significant public health testing effort.

The Centers for Disease Control and Prevention ("CDC") and the American Academy of
Pediatrics guidance on conducting testing of children in geographic areas suggests that,
depending on the presence of several factors, either universal or targeted screening may be
recommended. CDC suggests conducting universal screening if the prevalence of housing units
built prior to 1950 in an area is above the national average (27%), or if the prevalence of
measured blood lead levels above 10 /ug/dL in 1- and 2-year olds is greater than 12%, then all
children in the area should be routinely screened.  If these criteria are not met, children should be
screened on the basis of information collected about their specific situation (e.g., for Medicaid
recipients, children living in older (pre-1950) housing units, children present during a renovation
of pre-1978 housing unit).

TJie zip code containing the proposed facility covers a large area, and includes Mt. Morris
township, which contains a larger proportion of older housing than most of the county. On
average, the percentage of pre-1950 housing in zip code 48458 is about 22%, or below the CDC
suggested level which would trigger universal screening of blood lead levels in young children.

Overall, EPA found no clear evidence of a prevalence of pre-existing lead levels of concern in
the area most likely to be affected by lead emissions from Select Steel. EPA also concluded that
lead emissions from the proposed Select Steel facility are unlikely to have significant impacts on
blood lead levels of children living in the vicinity. While EPA believes that airborne lead
emissions from the Select Steel facility are neither actionable under Title VI nor cause for
particular concern, this does not mean that there is not a broader lead concern in Genesee County
that warrants attention separate and apart from Title VI.  EPA has noted that blood lead data
available for Genesee County provide a basis for an ongoing lead exposure assessment.
Approximately 8% of children screened for blood lead in Genesee County in 1997 exceeded the
federal blood lead goal of 10 ^g/dL. The available screening data also indicate  a greater risk of
elevated blood lead levels among African-African children. (Four percent of African-American
children screened between July 1995 and June 1998 had blood lead levels greater than 15  //g/dL,
while 1% of white children exceeded this level. Data tabulated by race were not available for all
blood lead levels exceeding 10 yUg/dL.) Under these circumstances, EPA believes that, separate
and apart from this case, further locally focused efforts are warranted to reduce existing
prevalence of elevated blood lead levels.
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Public health efforts to mitigate existing blood lead risks can include:

       »       continued blood lead screening, outreach, and intervention efforts directed to at-
              risk populations;
       »       generation of additional data on patterns of the occurrence of damaged lead-based
              paint and elevated levels of lead in residential soils and dusts;
       »       focused educational and assistance programs to aid residents and dwelling owners
              in reducing existing sources of lead exposure.

EPA supports continued local efforts to assess and reduce potential lead exposures in children,
and is prepared to provide assistance in the planning of intervention efforts and in the
identification of resources to support this work.

       3. Air Toxics

In its review of the permit for the proposed Select Steel facility, MDEQ used air models to
estimate atmospheric concentrations and compare them to screening thresholds defined by the
state. Modeled levels of air toxics emissions from the issued permit for the proposed facility did
not exceed state thresholds of concern. These MDEQ assessments were performed on a
chemical-specific basis, and did not attempt to aggregate the impacts of all releases combined.

EPA's approach to analyzing air toxics had some elements in common with MDEQ's NAAQS
review, in that it used air models to evaluate potential concentrations of air emissions from
multiple sources. It also extended this approach to include multiple  chemicals, whose potential
impacts were combined on the basis of similar health effects. Chemicals that may cause cancer
were considered separately from those which may only cause other chronic toxic effects, because
combining these different types of effects may significantly increase uncertainties. Acute effects
were not considered in the analysis because neither appropriate emissions data nor toxicity data
were available. For these air toxic releases, no ambient concentration regulatory standards are
generally available, either singly or in combination. The EPA approach used the modeled
concentration estimates along with residential population information for Census blocks to
estimate exposures, and health based benchmarks to project risks of potential impacts.

              a. Technical approach for air toxics evaluation

EPA conducted an analysis of the distribution of airborne toxic emissions from TRI facilities in
the same area as the proposed facility. EPA modeled average concentrations at each inhabited
Census block within six miles of the proposed site as a reasonable assumption of the likely
maximum geographic extent of potential impacts. To assure that the contributions of the
facilities outside the six-mile radius to blocks inside the circle were  considered, all facilities in
the analysis included those within an additional  six miles (i.e., all those within twelve miles) of
the proposed Select Steel site.
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The proposed Select Steel facility's air toxics emissions were obtained from MDEQ documents
listing maximum permitted limits.  Modeled chemicals included arsenic, barium, cadmium,
chlorine, chromium, manganese, mercury, nickel oxide, and zinc oxide, as well as lead.

In addition to the proposed facility, a total of 16 facilities were modeled, composed of 15 TRI
facilities plus Genesee Power Station ("GPS") (which was permitted to release lead and a
number of other metals). Of the chemical-specific air toxics emissions listed, methyl pyrrolidone
and benzo(a)pyrene (GPS only) were not modeled due to lack of available toxicity data. The
proposed facility's emissions of vanadium pentoxide and aluminum chloride were also not
modeled due to lack of available EPA toxicity information.  If the MDEQ ambient concentration
screening levels were used to rank the potential degree o^toxicity of the permitted chemicals, the
ranks for these substances would be the second and third least toxic of the 10 considered, or of
slightly higher concern than zinc. This ranking would also place them nearly five orders of
magnitude (or a factor of 100,000) less toxic than arsenic or cadmium, which were included in
the analysis.
Table X: List of Additional Facilities Modeled
TRI Facility ID
48423FRNCN300SO
48458NVRSL1167W
48503CMMRC711W1
48503 MCDNL609CH
48505LCKHR4701T
48505PPGND3601J
48506BBPNT2201N
48506MDSTT624KE
48550BCFLN902EH
4855 1GMCTRG3 100
48552CPCFLG3248
48553GMCTRG2238
48554GMSRV6060W
48555CFLNT300NO
48556CSPRK1300N
NA
Facility Name
Fernco Inc.
Universal Coating Inc
Oil Chem Inc.
McDonald Dairy
Lockhart Chemical Co
PPG Industries Inc
B & B Paint Co
Mid State Plating Co Inc
GMC -Buick Motor Div
GMC Truck & Bus Group
GM-CPC-Flint Engine Pit
GMC Metal Fabricating Div. Flint
GMC Motor Service Parts Ops.
GMC AC Delco Systems Div Wes
AC Spark Plug GMC
Genesee Power Station
Address
300 S. Dayton St.
1 1 67 W. Frances Rd.
711 W. 12th St.
609 Chavez Dr.
4302 James P. Cole
3601 James P. Cole
220 IN. DortHwy.
602 Kelso St.
902 E. Hamilton
G-3100VanSlykeRd.
G-3248 Van Slyke Rd
G-2238 W.Bristol Rd
6060 W. Bristol Rd.
300 N. Chevrolet Ave
1 300 N. DortHwy.
5300 Energy Drive
City
Davison
Mount
Morris
Flint
Flint
Flint
Flint
Flint
Flint
Flint
Flint
Flint
Flint
Flint
Flint
Flint
Genesee
Township
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EPA's analysis was performed both with and without Select Steel to examine incremental
effects, using an approach that is similar to one developed earlier for Title VI investigations and
that is undergoing scientific peer review by EPA's Science Advisory Board ('SAB").13
Modifications were made to address suggestions from the SAB.

To determine how permitted air toxic emissions are distributed geographically and on the basis
of population subgroups, EPA used 1990 Census data and. modeled average air concentrations on
a census block level. The TRI air release data used was for 1996, the most recent year for which
TRI data is available. The concentrations of chemicals in the various Census blocks were
examined relative to known chemical-specific values such as Unit Risk Factors or Reference
Concentrations ("RfCs"), and for those chemicals where these values have not yet been
established, the OPPT's Risk Screening Environmental Indicators (dated April 28,1998) tables
were  used. As a conservative screening method, the carcinogenic risk estimates for all
carcinogens in each block were added together as an indication of possible cumulative effects on
cancer probability.

Because the probability of contracting cancer is not generally assumed to have a threshold level
(i.e., there is some probability, however small, at any level of exposure), the decision regarding a
level necessary to cause an adverse effect is a matter of policy. In the past, EPA has  based
regulatory actions at a wide spectrum of levels, generally in the range of 10'6 (one in  one million)
to 10"4 (one in ten thousand) lifetime  cancer risk.14 Estimated lifetime individual risks below 10"6
have rarely been found to be sufficient basis for action, while in most cases, levels above 10"4
have resulted in some form of action, although not necessarily  regulation.

Similarly, on the non-cancer side, the 1986 EPA guidelines for dealing with chemical mixtures
discusses the  concept of hazard index, where a level below 1 means that untoward effects are
thought unlikely to occur. Because of the use of safety factors in determining the RfCs used to
construct a hazard index, the meaning of a hazard index above 1 cannot be used to predict that
unwanted health effects will occur. There are usually safety factors of from 3  to 1000 times
between calculated RfC levels, which are used as screening thresholds here, and concentrations
 found to cause adverse effects in animals or humans.  Scientists have not agreed, at this point, on
 a scheme for  predicting if and when effects will occur based on the hazard index values between
 1 and the lowest concentrations found to cause adverse health  effects, often considerably higher.

 Major uncertainties in this kind of analysis include the specific chemicals' toxicity potencies,
 which are not always based on a comparable amount or quality of information, and may include
 significant "safety factors" to reflect uncertainties in the degree of potency. Other uncertainties
        13  The approach presented for SAB review was called the Enhanced Relative Burden
 Analysis.
        14  See, e.g., CAA § 112(f)(2)(A); 42 U.S.C. § 7412(f)(2)(A).

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 include not being able to account for all significant sources, since mobile and area sources of
 certain air toxics may be as significant as point sources, especially in urban areas. The point
 source TRI emissions information used was based on industry-reported data which can be
 derived using a variety of approaches with varying degrees of accuracy, and in the case of two
 facilities, the maximum pensitted*emission levels. In interpreting combined effects of multiple
 chemical exposures, hazard ratios based on additive combinations of chemicals whose predicted
 effects are on different parts of the human body may significantly overestimate potential impacts.

 Adding carcinogenic risk and construction of hazard indexes for multiple chemicals both involve
 "adding" various health effect "endpoints" that may result from entirely different biological
 mechanisms and therefore may not be strictly additive in a biological sense. In this
 methodology, the chemicals are added as a worst case assumption, and if added levels do not
 raise concern when compared to benchmarks such as a cancer risk level or a hazard index, an
 assumption would be that they would not be of concern if a more detailed methodology were
 applied.
                                                                      I

              b. Results of Air Toxics Analyses
                                                                      i
 The analysis focuses on whether the permitted Select Steel emissions—either in and of
 themselves or jn combination with other emissions in the area—result in concentrations that may
 adversely impact the health of the residents in the surrounding area.  The analysis found that the
 locations of the blocks with the maximum predicted impacts from the Select Steel Facility were
 very close in to the facility, near the fence line. None of the Census blocks were found to be
 significantly adversely impacted solely by projected emissions from the proposed facility. The
 Census block with the highest projected potential risk from potential carcinogens was estimated
 to have a lifetime risk of just above 10'6 (1 in 1 million) associated with emissions from the
 proposed facility, the hazard index for all blocks in the six-mile circle due to the Select  Steel
 emissions was well below the screening threshold of 1, the highest block being about 0.03. The
 analysis does not support, therefore, the allegation that the proposed Select Steel facility
 emissions themselves, as permitted, will be the cause of health effects in the surrounding area. In
 addition, the levels from the Select Steel facility are also projected to be fairly low compared to
 the levels contributed by the other TRI sources collectively.

The cumulative results for the entire six-mile circle indicate the lifetime carcinogenic risk
estimates for the highest single block is about 6x10'5. While the estimates for several blocks fall
within the 10's range, these estimates are thought to be quite conservative for the following
reason. Virtually all the blocks where risk is above the low 10'6 range are dominated by the
release of chromium. The methodology makes two very conservative assumptions regarding
chromium: fir?k mat all releases are assumed to be the more toxic chromium VI valence state, as
opposed to the significantly less toxic chromium III; and second, that the released particles are
small enou^n to be earned with the wind dispersion and not fall to earth and be substantially
removed through dry or wet deposition. The ratio of chromium VI to total chromium in
emissions is usually much less than 1, with estimates in the 10% range not uncommon. Were
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this ratio factored into the methodology, none of the blocks would have shown an estimated risk
above the 10'6 range.  Even so, the conservatively derived, levels are not such that they go above
the 10-4 level.

On the non-cancer side, most of the blocks within the six-mile circle are below the hazard index
of 1, even with all non-carcinogenic chemical effects combined. There are a substantial number
of blocks, however, which have hazard indexes between one and 10, and some—just under
6%—which have hazard indexes between 10 and 80.  In all of the blocks with hazard indices
above  1, glycol ethers15 is the predominant cause.  Therefore, uncertainties that might arise from
adding different chemicals together largely do not apply.

There is considerable uncertainty about the meaning of the estimated hazard indices here, for
several reasons. First, as previously discussed, scientists have not yet agreed on how to interpret
hazard index values above 1.  Second, the value used for glycol ethers in this screening
methodology was not a formally established RfC, but a value derived from an similar type of
toxicity study which used oral rather than inhalation exposure, introducing some additional
uncertainty.  Third, there are usually uncertainty factors applied to any RfC or reference dose
calculation, so values above 1 cannot be easily (or at all) translated into predictions of
probabilities of adverse health effects. At this point, these values can be termed "not necessarily
safe,"  but neither can there be adverse health effects definitely predicted upon this basis alone.
In any event, the analysis suggests that Select Steel's emissions will contribute minimally, if at
all, to  the possibility of adverse health effects.

 Overall, the EPA analysis does not support the contention that the combined modeled emissions
 in the six mile area near the proposed facility indicate the likelihood of adverse health impacts.
 For all of these reasons, with regards to air toxic releases, it is recommended that EPA find no
 violation of Title VI or EPA's implementing regulations.

        4.  Dioxin Monitoring

 The information gathered from the investigation concerning the monitoring of dioxin emissions
 is consistent with EAB's analysis of the issue.16 No performance specifications for GEMS have
 been promulgated by EPA to monitor dioxins. Without a proven monitor, MDEQ was unable to
 impose a monitoring requirement on the source.
        15 Glycol ethers are industrial solvents used in paints and other products.

        16  In the EAB's analysis of Complainants' PSD appeal concerning dioxin monitoring, the
  Board similarly concluded that "MDEQ's decision is not clearly erroneous." In re Select Steel
  Corporation of America, Docket No. PSD 98-21, at 5 (EAB Sept. 10,1998). That holding was
  based, in part, on the fact that the Complainants made "no argument and points out no data to
  refute MDEQ's judgment." Id.
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11	1 -t'i
                       '"';"S  t	Hi
                                                                            i a	v"i:; i
           In addition, MDEQ believed dioxins are not emitted by steel recycling mini-mills. EPA has no
           emissions data for American mini-mills to either support or contradict MDEQ's belief.  The
           Inventory of Sources ofDioxin in the United States indicates that information has not yet been
           developed to determine whether dioxin is a pollutant of concern from facilities like Select Steel.

           Furthermore' £* thJs time, EPA does not expect to regulate air toxic emissions from steel
           recycling mini-mills under CAA section 112.  Without regulations or other guidance to direct the
           Agency's review of this issue, EPA is not in a position to contradict the conclusions of MDEQ.

           For these reasons, a finding of no disparate impact associated with MDEQ's decision not to
           include monitoring requirements for dioxin in the permit is recommended.
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B. Allegation Regarding Discrimination in Public Participation

The evidence indicates that the permitting process for the proposed Select Steel facility's PSD
permit did not violate Title VI or EPA's implementing regulations. The investigation's results as
to each of the allegations are detailed below.

       1. Timing of Permit Issuance

EPA reviewed a variety of documents from MDEQ concerning the timing of the permitting
process for the proposed Select Steel facility and interviewed the MDEQ employees who
participated in that process. Neither the documents nor the interviews revealed anything
indicating that MDEQ expedited the permitting process for Select Steel in order to preempt an
adverse holding in the GPS case or for any other improper reason.  In addition, EPA's review
found that the public participation process for the permit was not compromised by the pace of the
permitting process.

The five months that lapsed between the submission of the permit application and the issuance of
the permit appears to be normal.  Among the last twenty-six PSD permits approved by MDEQ,
the average time between receipt of the application and approval of the permit was eight months,
but the average time between the receipt of a complete application and approval was only one
and a half months. Message transmitted by facsimile from Lynn Fiedler to Richard Ida, at 4
(Oct. 28, 1998) (providing table of PSD permit processing times for last three years). Judging by
those averages, delays that may occur in the issuance of PSD permits could be attributed to
incomplete applications. In this case, significant pre-application discussions occurred before the
application was received on December 30, 1997. See, e.g., Memorandum from Lynn Fiedler to
the file (December 8, 1997).  As a result, MDEQ was able to perform a completeness
determination the same day the application was submitted, thereby shortening the time required
to process the application.

In addition, during a pre-application meeting with Select Steel on December 2, 1997, rather than
attempting to ignore the Circuit Court's holding in the GPS litigation, the Thermal Process Unit
Supervisor said she provided a copy of the decision to the applicants. She went on to note that
MDEQ "is a neutral party and ... we would be following the process as required by the state and
federal regulations." Memorandum from Lynn Fiedler to the file (December 8, 1997).

Although Complainants may have gotten the initial impression that the permit process would
take over one year based on Ms. Fiedler's alleged comment that it would take "a long time,"
subsequent communication between Complainants and MDEQ should have clarified the
timetable for Complainants.  On February 17,  1998, Fr. Schmitter and Ms. Fiedler discussed the
timing of the hearing. Ms. Fielder indicated that it would be at least 30-45 days away. Notes
from Lynn Fiedler (Feb. 17, 1998).
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Moreover, nothing in the public participation process was compromised by the pace of the permit
process. MDEQ satisfied EPA's regulatory requirements concerning the issuance of PSD
permits. See infra discussion about notice and location of public hearing.  For all of these
reasons, it is recommended that EPA find that the circumstances surrounding the timing of the
Select Steel PSD permit issuance did not violate Title VI or EPA's implementing regulations.

       2.  Relationship Between Select Steel and MDEQ

EPA reviewed a variety of documents from MDEQ concerning the relationship between MDEQ
and Mr. Shah, and interviewed the MDEQ employees who participated in the permitting process.
Neither the documents nor the interviews revealed anything indicating improper or unlawful
actions by the MDEQ, NTH Consultants, or Mr. Shah in their interactions during the permitting
of Select Steel. Some MDEQ employees, including Dennis Drake, Director, MDEQ Air Quality
Division, noted their awareness of Mr. Shah's job with NTH Consultants, but were not aware
that Mr. Shah was involved in the Select Steel application. Interview with Dennis Drake
(October 21, 1998).  Those MDEQ employees who knew about Mr.  Shah's role in developing
the Select Steel permit, including Hien Nguyen, Permit Engineer, and Lynn Fiedler, stated that
no special treatment was given to Mr. Shah or to the Select Steel permit application. Interview
with Hien Nguyen and Lynn Fiedler (October 21,1998).

In some government organizations, regulations prescribe certain limitations on post-employment
interactions with the former government employee.  In this case, Michigan does not appear to
have any such regulation. See, e.g., Mich. Stat. Ann. Title 4, Part 7,  Chapter 31c (1998)
(Standards of Conduct); Michigan Civil Service Commission Rules  § 2-12 (Retirement) and § 2-
21 (Conflict of Interest).  Notwithstanding the absence of state regulations, the circumstances of
this situation do not indicate any impropriety.  Mr.  Shah was never involved in the permitting of
the Select Steel facility during his tenure at MDEQ because he resigned from MDEQ
approximately two years prior to the submission of Select Steel's application. Telephone
Interview with Dhruman Shah (Oct. 23, 1998). Furthermore, even if the federal rules concerning
subsequent employment had applied to this situation, Mr. Shah would have been free to
participate in the Select Steel permit. See 5 C.F.R. §§ 2637.201 to 2637.204 (regulations
concerning post-employment conflict of interest).

Without some evidence of impropriety in the relationship between the permit authority and the
permittee, EPA cannot assume that any such impropriety existed. Accordingly, it is
recommended that EPA find that nothing about the relationship between MDEQ, Select Steel,
NTH Consultants, and Mr. Shah violated Title VI or its implementing regulations.

       3.  Notice of Public Hearing

EPA reviewed a variety of documents from MDEQ concerning the notice provided for the public
hearing and interviewed the MDEQ employees who were involved in providing that notice.
Neither the documents nor the interviews revealed anything indicating a violation of Title VI of
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the Civil Rights Act of 1964, as amended, or EPA implementing regulation, by the MDEQ in
providing notice for the public hearing.

EPA's regulations for PSD permitting require that notice of a public hearing must be published
in a weekly or daily newspaper within the affected area. 40 C.F.R. § 124.10(c)(2)(i). In this
case, MDEQ went beyond the requirements of the regulation and published notices about the
hearing in three local newspapers: The Flint Journal on March 26, 1998, and March 27, 1998;
The Suburban News on March 29, 1998; and The Genesee County Herald on April 1, 1998.

EPA's regulations also require that notice be mailed to certain interested community members.
40 C.F.R. § 124.10(c)(l)(ix). MDEQ mailed letters dated March 25, 1998 to Fr. Schmitter, Sr.
Chiaverini, and nine other individuals in the community who had expressed interest in the
permit.  That letter was also transmitted by facsimile machine to Fr. Schmitter and Sr. Chiaverini
on March 25, 1998. Nonetheless, Complainants believed that MDEQ should have mailed the
notice to more members of the community, particularly in light of the alleged inadequacy of the
notice mentioned in the GPS case. MDEQ, however, believed that Fr. Schmitter and Sr.
Chiaverini would act as the contact point for their community and alert other interested parties
about the proceedings. Interview with Lynn Fiedler (Oct. 21, 1998). More importantly, the
mailing list prepared by MDEQ included individuals who had expressed interest in the Select
Steel permit application and who had participated in other permitting decisions that involved the
area, consistent with the requirements of EPA's regulations. See Select Steel Mailing List
(undated).

The information examined during the investigation indicates that MDEQ provided sufficient
notice of its public hearing.  In terms of newspaper publication, MDEQ went beyond the
requirements of EPA's regulations and issued the notice in three, rather than just one, local
newspapers. The mailing list that MDEQ developed also met EPA's requirements and was not
inadequate to inform the community about the public hearing, in part, because the Complainants
took it upon themselves to contact other members of the community. Consequently, it is
recommended that EPA find that the method of notification for the public hearing did not violate
Title VI or its implementing regulation.

       4.  Location of Public Hearing

EPA reviewed a variety of documents from MDEQ concerning the location of the public hearing
and interviewed the MDEQ employees who were involved in selecting that location. Neither the
documents nor the interviews revealed anything indicating a violation of Title VI of the Civil
Rights Act of 1964, as amended, or EPA implementing regulation, by the MDEQ in selecting a
location for the public hearing.

Complainants wanted the hearing held at Carpenter Road Elementary School.  It is not clear
whether MDEQ contacted the school in its search for a hearing site. A MDEQ memorandum
indicates that "there would be ... a public hearing in the local area - either Carpenter Road
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                                                                        OOOIL'S

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school or another school close to the facility."  Memorandum from Lynn Fiedler to the file (Dec.
8, 1997). The Air Quality Division Hearing Officer indicated that she contacted the Carpenter
Road School. Interview with Susan Rpbertspn (Oct. 21, 1998). The Principal of Carpenter Road
Elementary School, however, has no recollection of being contacted about such a hearing and
said that he normally welcomes such events. Telephone Interview with Charles Atwater (Oct.
23,1998).

MDEQ contacted the Beecher High School and its feeder schools. Telephone Interview with
Judy Williams, Parent Involvement Coordinator, Beecher School District (Oct. 26, 1998).
MDEQ ultimately held the public hearing at Mount Morris High School, approximately two
miles from the proposed facility.

Notwithstanding the uncertainty about Carpenter Road Elementary School, the location chosen
for the public hearing is in close proximity to the proposed site. In addition, it is accessible by
the general public. The Genesee County Metropolitan Transit Authority provides public
transportation (e.g., "Your Ride") to the location. Telephone Interview with Ronda Jenkins,
Customer Service: Representative; Genesee County Mass Transit Authority (Oct. 28, 1998).  It is
recommended that EPA find that MDEQ's decision to host the hearing at Mount Morris High
School does not raise to the level of a violation of Title VI or its regulations.

C. Conclusion

Having analyzed all of the materials submitted and information gathered during the investigation
regarding each allegation, it is recommended that EPA not find any violations of Title VI and
EPA's implementing regulations by MDEQ.
                                          42
                                                                         0001^

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           PUBLIC INTEREST LAW
           CENTER OF PHILADELPHIA
125 South Ninth Street • Suite 700 * Philadelphia, PA 19107 • Phone; 215-627-7100 • Faxr 215-617-3183
Michael Churchill
Chttf Counsel

Jarnme Sailer
Kuril U Black
Thnmiu X. Oilhoct
Judith A. Ortn
Mwitiew M. CuR
JulmH.Hote
Klnwn E. Kacfc
FwnkJ.Uikl
BJitarn fc Ransom
Momtft

HcuOnrM. BendlC
Director af
Donild K. Juicph
Chairman of
ike Bilttrd

Edwin D. Wolf
Execulnt Dlrtftor
 AffllUlca with Ihc
 Urwycn ConuaiUoe
 tocCSvURIghU
 Under L»w
                                                  October 15, 1998
       C3oode
Director
Office of Civil Rights (1201)
US EPA
401 "M" Street, SW
Washington, DC 20460

Dear Ms. Goode;

    The problem of environmental injustice has been recognized for many years but a
workable protocol to advance environmental justice has yet to be developed.

    There are some vcho contend that a program to advance environmental justice is a
program in conflict witK the goal of converting our hazardous brownfields into
beneficial usefielda: They are wrong. The eradication of brownfields in minority and
low income urban areas is an important aspect of environmental justice.

  — To help achieve the complementary goals of environmental justice and eradication
of brownfields, the public Interest Law Center of Philadelphia has been developing an
"Environmental Justice Protocol" designed to protect residents in substandard health
communities (minority and low income) from environmental pollution whiie
empowering such communities to say "yes" to proposals for developments which
would be beneficial to community interests.

    We are enclosing a copy of our "Environmental Justice Protocol" (10/1/98), The
 protocol remains subject to revision or amendment based on your comments and
 advice. Please let us have your reaction and comments.
                                                   Yours sincerel
                                                   Jerome Balt
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]  «:

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                ENVIRONMENTAL .pTSTICE PROTOCOL
                  Proposed by Public Interest Law Center of Philadelphia
                                 - October 1, 199$
                                 INTRODUCTION:
       Title VI of the CM Rights Act of 1964, 42 U.S.C. §2QOOd (Section 601) prohibits
recipients of federal financial assistance from discriminating against persons because of race, color
or national origin. Thus, state agencies such as the Pennsylvania Department of Environmental
Protection (DEP) are subject to the requirements of Title VI.
    •   Title VI also authorizes federal agencies, such as the Environmental Protection Agency
(EPA) to promulgate regulations designed to prevent such disrcrimination.  42 U.S.C. §2000 d-1
(Section S02).
       Pursuant  to Section 602. the EPA in 1984 promulgated Title VI regulations.  40 CFR
§7,01 et seq,  Unfortunately, they were only procedural in nature and did not include any
guidance for determining whether particular actions of a recipient of EPA funds constituted
violations of the  Civil Rights law.
       Environmental injustice has been recognized as a national problem fer more than 20 years
but it was not until February, 1994 that the President issued an Environmental Justice Executive
Order requiring the EPA and other federal government agencies to develop programs to
overcome environmental injustice in minority and low income communities.  And EPA required
another four (4)  years, until February, 1998, to publish its "/««/"//« Guidance for Investigating
 Title VJ AdmMsirallve Complaints ClKillengtng Permits" (Interim Guidance),
                                          ***
        In 1998 the EPA organized an Implementation Advisory Committee (IAC) representing
 stake holders from across the country to make recommendations for improving the Interim
 Guidance. The Public Interest Law Center of Philadelphia (Law Center) presented comments on
 the Interim Guidance to the IAC at its first meeting on May 18,  1998 in Arlington, VA. The Law
 Center noted that the EPA's Interim Guidance was very complex and included too many factors
 open to conflicting opinion for the Guidance to serve as a useful tool for advancing environmental
                                                                                000131

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justice. Tho EPA's investigation of the proposed Shintech facility in Louisianna illuminates that
       ••.••   •  .      ;          i   •••  ,   •    ,       	;    •       '  - • ••. ' it 	I
complexity.
       In. an attempt to provide constructive assistance to the IAC, the Law Center presented a
substitute Protocol for lAC's consideration. Since the lAC's meeting of May 18th, the Law
Center has presented Us substitute Protocol ai numerous meetings including meetings of the
Pennsylvania Department of Environmental Protection (DEP) and the Philadelphia City Solicitors
Office.
       In contrast to the EPA's Interim Guidance which is based on complex disparate
cumulative impact analysis, the Law Center's substitute Protocol is based on a comparative public
health analysis utilizing official state public health data.
       It is well recognized that residents of minority and low-income communities suffer from
     ; ':'"'  i1.;1":!!       "'     '   ,     ' '       ,! 	  '"  :      '  : ",•; . '  „   ' •  ; is,  ,|   ; . . ,
substandard public health. This was recognized in the President's Executive Order of February
1994. The- Law Center's substitute Protocol is designed to protectl substandard  health
   „    X,;  f .nrl'l    ,    »   .  	.,:   „'          '           i:    ,,,'.'  l,,i ',  :    l> '  I "
communities from polluting facilities thereby fulfilling the purposes of environmental health
protection Jaw and civil rights law.
       The substitute Protocol requires the pollution control permitting agency  to promulgate
regulations thai would make civil rights protection an intrinsic part of the permit application
review process.  Such a requirement would greatly reduce the number of civil rights complaints to
     "  i*!  ' ":	         •  ; ••    ,  .'.    •  !      ,',   ''. ,  '   '.    ;,'"	 •,' •,  '!   1 	 •"    ;,in,
.the EPA after the issuance of pollution control permits.
       '.,,,:'           • ,:•       •          '        '  ',     '     '  ' >      ' 'i '1 i|
       And the substitute Protocol empowers the local community to override the permit
prohibition through the use of a local referendum financed by the permit applicant, affording local
residents  control of community development.
       Over the past few months the Law Center has presented its substitute Protocol to
 numerous audiences and has received some very positive feedback. The substitute protocol
 (Environmental Justice Proposal)  attached reflects the constructive comments presented to the
Law Center.
                                                                                       000132

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                         Environmental Justice Protocol
                         Public Interest Law Center of Philadelphia
                                   " October 1,1998

       1.      No state or local agency, receiving federal financial assistance, shall grant a
pollution control permit to construct or operate a new facility or to construct or operate an
enlargement of the capacity of an existing Facility in any Affected area where the public health of
the residents of the Affected area is determined to be Substandard.
       2.     The Affected area of a proposed new facility or of an enlargement of an existing
facility shall be the area within a circle one-half mile in radius except that the radius shall be
increased so that the areu within the circle contains 1000 residents. The center of the circle shall
be located at the center of the operational structure of the proposed facility
        3.     Public health shall be determined from government health department records for
 the most recently published five (5) year period at the time of the permit application.
        4.     Government health department records are to be used for assessing public health in
 respect to the following health factors:
        (a)    Age adjusted  mortality rates
        (b)    AE« adjusted cancer mortality rates
        (c)    Infant mortality rates
        (d)    Low birth weight rates
         5.     (a) Standard public health rates shall be'the races of each of the health factors  for
  the entire population within the jurisdiction of the agency which issues the pollution control
  pennies in the Affected area.
                                                                                       000133

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             (b)    The Affected area shall be deemed to be a Substandard Health Area when

   1       '        ••            '             -   •'	  '•» •': •    i ii'  |     ;    •            -  i
there is a delation of at least 20% in any of the health factors between the Standard Public Health
  ' „•'!           '  ':•:',     '        '              ,'"'!''        ' • !!                     '  '!
rate and the rate in the Affected area.


       6.     Residents of the Affected area, shall have  the right and power to override the

 .i*1 •  .             ,     "     i,.          ,    . •  ••  •!  ii;	   5  i .1     ,            •      i
prohibition of grant of permit under paragraph 1 by means of a referendum among the residents of
                                                           i  i
the Affected area, the cost of the referendum to be paid  by the applicant for the pollution control


permit.
                                                                             P. as
                                                                       000134

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                                                                                 Page 1
                      ENVIRONMENTAL JUSTICE PROTOCOL

                         Public Interest Law Center of Philadelphia

                                       Draft 2/S/99

                                   INTRODUCTION

       The Public Interest Law Center of Philadelphia (Law Center) herein presents a Draft of an
              '                                      /
Environmental Justice Protocol for use by the EPA and by State environmental protection

agencies to determine whether proposed permit applications are in compliance with the Civil

Rights Act of 1964, Title VI and with the goals of environmental justice.

       This is a Draft. Jt is recognized that adjustments will be needed in response to comments

and suggestions, all of which are welcome.
       1.      No State or local environmental protection agency which receives federal financial

assistance shall grant a pollution control permit to construct or operate a new facility or to enlarge

an existing facility in any Affected area where th* Public Health of the residents is determined to

be Substandard; except that such prohibition may be overridden by a referendum of the residents

of the Affected area (see  paragraph 7).

       2.      The Affected area of a proposed new facility or of a proposed enlargement of an

existing facility shall be the area within a circle of radius	__(Distance)  except that

the radius shall be increased so that the Affected area contains a minimum of (	) residents.

The center of the circle shall be the center of the property owned or leased by the permit applicant

for the operation of the proposed facility.

                                                                               000135

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           ,         ;                                           . „  .     ;  ;     ..     Page 2

    ""'  3.     The Public Health of residents of a geographical area shall be determined from the

records of state or local health departments for the five (5) year period preceding  the time of the

permit application and the most recent records published by the U.S. Census Bureau.
                    -!               '                  '•'..,!  " '  '  I  !
       4.     The following factors shall be used to determine the' Public Health of residents of
              '  .-  '  "i                        '       ,   ' '      ,'  '.::'   •  .1  I  .'   4
              .i'  :  :).!  !            ••                                    • I  i     "i
any geographical area:

              a. Age adjusted mortality rates per 100,000 population;

              b. Age adjusted cancer mortality rates per 100,000'population

              c. Infant mortality rates per ICOO live births

              d. Low Baby Birth Weight Rate (under 2500 grams) per 1000 live  births

       5.     Standard Public Health shall be determined from the health factors  for the

population of the entire state or county in which the Affected area exists.

       6.     The Affected area shall be deemed to have Substandard Public Health when there

is a deviation of at least (_	%) in (each, all) of the health factors in the Affected  area as

compared to the Standard Public Health.

       7.     Residents  of an Affected area determined to be a Substandard Public Health area

shall have the right to override a permit prohibition by a referendum, paid for by the permit
                                                                         i
applicant.
                                                                                  000136
                                                                                              I	Ir

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I *rl
           Rexponilble Care*
Appendix I: Materials on CMA
Responsible Care Program
                          000137

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 Guiding Principles
" ii
                                                            CM* member ,-,nn Panne* commitment to
                                                    chemicals- Members fln
      • To recogni?o ,ind respond co communiiy c.onrcrr.N ;,uout chemicals and our operations.


      • To develop ?nd produce chemicals rhar ran Ix- wnuUtuetf. transported  used and
       disposed of safely.
                                                                                     j

      •To make health, safety and environmental considerations a priority in our panning lot all
       existing and new products and processes


      "To report promptly to officials, employers. ««mmcri and the public, information on
       cncrrucal-related health or environiwr,i>,i hcviifds and to recommend protective measures.
                                                                      .     ,        ,  |
      ' To couns«j cusipmors on UiSOlVe pr°blemS mM* hy P'1M '«'"<»'"» and disposal of hazardous
     -To_pank:ipate with gowrnmonl jincl others in creating responsible-: l,,ws, regulations and
      standards to safeguard ih<- cwnmunicy, workplace and <-;nviron«i(.-nt.


     •To promote tncprinciples and practices of fes,,onsi!;H- Co.c" Oy sharing experiences and
      Offering assistance to others who produce, handle, use. transport or dispose of chemicals.
                                                                                            000138

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10 Elements of Responsible Care"
Guiding Principles

These1. Statements of ihc philosophy of Responsible Can-"
outline each CMA manlier and Partners commitment in
environmental, health and safely responsibility in managin
chemicals. Member* and Partners pledge to manage iheir
businesses according to these principles.

Codex of Managoment Practices

At the heart of the .Responsible Care* initiative are the six
Codes of Management Piac-tices. The Codes focus on
management practices in specific was o!'chemical opciatiuns.
Members and IVmois must make continuous process in
attaining the goals of each ("ode.
  - The Community Awareness and Emergency Response
   (CAl'RJ Code promotes emergency response platminj',
   and calls for ongoing dialnguu with local communities;
  •Th« Pollution Prevention Cnde commits industry 10
   ihe safe management and reduction of wastes;
  • The Process Safety Code is designed to prevent fires,
   explosions and accidental chemical releases;
  • The Distribution Code focuses rrieiU-vs and take action on advancing the
iinplcmemaiioi) of Responsible Care*.

Mutual Assistance

Direct compxny-to-company mutual assistance has
surfaced as one uf the most ciTccuve methods for advancing
Uc-sponsihle Care*. Members and Partners at rhe. cxcvuuvc
contact. Responsible Care" Oordlnatur and practirioncr
 levels rej'.ularly share information through the mutual
 aNsistHiici; network,  often through state cluanical associations.
•whitlt «re vital 10 the success of the network.

 Partnership  Program

 The  Pai iiH-isliip Program provides an opportunity for those
 who otherwise may not be eligible for membership in CMA
 10 |innic'panr directly in the Responsible. Care* itiiuacivc.
 Companies that take ownership or jKissession of chemicals
 and chemical related associations are eligible for membership
 in the Responsible Care" Partnership Program.

 Obligation »f Membership
 (:MA Uylaws obligate member companies to participate in
 Responsible. Care" as defined by the Hoard. This includes
 ascribing to  the- Guiding Principles, participating in live
 deve.lopmi.iit of the iniriativc and making good faith efforts
 to implement the program clejuent-s of rhe. Responsible
 Care* initiative.
                                                                                                          000139

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 Community  Awareness and Emergency Response
 Code  Of Management  Practices
Purpose

The goal of the Community Awyrcm-ss and bmc.-iu.aicy Nv^jomf (CACRj Code of Managemeru Practices is 10 assure
emergency preparedness and to foster community j'cjhHf>know. li (temnnds a commitment to openness and
community dialogue, The Code has two major components: fir si, U> awure ihat member facilities that manufacture,
process" UJC, dlstribuic or store hazardous materials iniiiaie and maintain a community outreach program to openly
comrflunkuie relevant, useful Information responsive ro the public* questions and concerns aboul svtfay. health, and
the environment. and second, 10 help protect employees and communities by assuring thai o/ich facility has an
cmcrgcnry rcsnorw program ro respond rapidly and ef/eitivc'ly to
    j .•!  •          '*:   ' ji-i'i           •  . ;l     '"   .  !  ..    '' y
     .                   -           •  .         .   ..            .       ,     .       .. .
1heS?na'T1un'!y 0(JIl'enrh rlliry-rommuniiy dinlooue to cover the full range of safely, health and
environmental issues

Relationship to Guiding Principles
The Code helps achieve several of chip Responsible f. foi key facility and
      company personnel who communicate with
      employees 4nd the public concerning sjfcty, health,
      and environir.enul issui-s.
   2>  Txhiratton ofcmplnyecx nhour rhe facilirys
      emergency response plan and safety, he.ilrh, nnd
      cnviionmcntal programs.
   4,  An ongoing dialogue wirli employees re respond ro
      ihcir questions and concerns and involve them in
      community outreach dibits.
   S.  A tcgulai evaluation of the cfTectivcncss ol'tlir
      ongoing employee communications efToris.
                                                  C.r.w by sharing experiences and offerina assistance to
                                                   of chemicals.
            Hir the Community:

            6. An ongoing assessment of community questions
               mid i-.onf.crns .ihour the fndliry.
           7. Ail outreach  program e<> eduoato responders,
              government officials, the medu, other businesses
              and the community about ihc fidlky's emergency
              rcspvnsi- projjrstiu xnd lislts to the voiimi unity
              assocJaicd wuh ih< faeiliiy.
           8. A continuing dialogue with local citizens to respond
              to questions and concerns about safety, health, and
              the viivuonmeiu, and to address cihcj issue* of
              interest to the community.
           '). A policy of openness th.ir provides convenient ways
              fnr iiiTcirsted persons ro hccomr familiar wirh rhc
              faciliry, its operations, and products, and its efforts
              u> }
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B. Emergency Response and Preparedness

   Member facilities that manufacture, process, use,
   distribute or store hazardous materials shall have an
   emergency response program that includes:

   1.  An ongoing asseismcm of potential risks to
       employees and local communities resulting from
       accidents or other emergencies.
   2.  A current, wriucn facility emergency response plan
       which addresses, jmonp other things, communications
       and the recovery needs of the community after au
       emergency.
   3.  An ongoing training pingram for those employees
       who have response or  communications
       responsibilities in the cvcnr of an emergency.
   4.  Emergency exercises, at least  annually, to icsi
       opcrabiliry of the wrinr.it emergency response plan,
   5.  Comrminiration of relevant and useful emergency
       response planning information to
       Emergency Planning Committee.
   6.  Facility tours for emergency rcspondcrs to promote
       emergency preparedness and  to provide current
       knowledge of facility operations.
   7.  Coordination of the written facility emergency
       response plan with chc comprehensive community
       emergency response plan and other facilities. If net
       plan exists, the facility should initiate community
       efforts to create a plan.
   8.  1'articiparinn in the community cmcrgrney ivspunscr
       planning proc«$ to develop and periodicnlly test the
       coittprehenjiivc communilx ejnergency response
       plan developed hy rhc !<"«! Emergency Planning
       Committee.
   9.  .Sharing of inlbinuiiuii and experience iclaiinj; to
       emergency response planning, exercises, and the
       handling of incidents with orlicr laciliiies in the
       community,
            ApfnatA /y (W> BMnt efiiincnn fu> Ntunhr 6. I 'J(C9.
                                                                                                        000141

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 Pollution Prevention
 Code Of Management  Practices
 Purpose

 This Code is designed to achieve ongoing reduct.ons in the .imuunt of .ill contaminants c'uid pollurnnis released to
 Oys o>r, water. ana land from member company facilities. Thcst- icdut lions arc Intended to respond ro public concerns
 with the existence of such rele-ises, and to further increase the rriaryin of SAfety for puhlic health and the environment.

 1he Code is also designed to .xiifcve ongoing reductions in u ic amount of wastes gennicUfU at facilities. These
 reductions are intended to help relieve (he burden on industry ;mui planning foe all existing and new
   products and processes.
  «1o report promptly to officials, employees, custorntas vmti the public information on chemiccil-telaieo1 healrh or
   environiTienta/ Hji^iirds and ro recommend protective measures.
  >To operate our plants and facilities in a maruicr ihar protrcts tfie environment and the health &n
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7.  Measurement of piogresis at each facility in reducing the
    generation of wastes and in reducing, release* to thr: ;iii,
    water, and IHIK|, by updating the quantitative inventory
    at least annually.
8.  Ongoing dialogue with employees and members »f ilic
    public regarding WASIC and release information, progivss
    ill achieving reductions, and future plans, This dialogue-
    should be at a personal, faee-ro-face IcvoJ, where possiUlt,
    Mid should emphasiv. listening to otheis and discussni|;
    their concerns and ideas.
9.  Inclusion  of waste and relff Turmx
A? ij.?r,l in niK Cntit, kfy leiitu uic- (Jcfineo as set fnrtn nrtrn*/.
MM* Dm ih«e cldlni'tions mfly tx> hrtwrtcr 1(1.111 iryuloluiy
(Ivfiniliutu. «irtl t/iaf adhcrcnrp to init Code iloo not relieve 3
ton-fwrv ni ihi> iM>lig;Uion to meet Federal, stale- and locjil
       • A>iH; u^wl for chemica
ic'ifiinij. (.mcluKjinq, R&U, (IKtrttjlilion Oi icatcd commercial
;ir.tiviry.
Recycle • A p/ticticc which ref)tnfrMt^ fit \m.v.v>wi a /iwtcrial
fioiM ii (.''oi.csi to recovfir n l|;i||. jlijchufgc or disposal to
tnr MI; rind, (ir vy the' consumer
Reuse • A practice that reempfcyi ;i rriutcriol from a prorp.tt
either w an »i(ji«lifnl in a ptoccu to m?ke 3 pmouct. w .« >-ui
irlortivi? suteututc- for a commcrrial prortud in r< pvit'tftulur
function. 01 .ippfcation.
Sourtt! n«Juc(i.on - A piiicUcc that reduce.1; rhc amount of ony
icliMitf or wiiitc pcnerrired ar me souiCr. including closed loop
recycle and rauw wfore exil Ircin iri(l prorndums rnm}iticMion!i. icTormufation and mdo.dijn
erf fMritiiH. uilniiiuiiuri of ijwipylcrtals, and Improvemenb in
rifiii'*!ii?(:|iiiK). itiiiintcrsancc1. tr.iinfnfj snd inventory Contiol.
Tnsjurncni - A pntctice, cthsr rnjn recycle or Cc-mc, that altnrs
the- physiuil, chemiral, or Mok^Keri c! waclc-ristics or rhs volume
of 
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                Process  Safety
                Code Of Management Practices
Wj!

iff '
                Purpoi*

                Tljp Proc;cs> Safely Code is cJespcjfied to prevent Ilrci. explosions ;-incl accidental chemical relcasey The Code is
                colhpfbctJ of a ierici of rinan«!C|cmeru practices irwi relied this yocil. wiih trie expccuuiori of cyntinuoui performance
                Wptovema'il for ci< iisi'-d of m,-in,:tgi;:rrieni
                Itidtyitiuilty, wch pffU >i iiupui(»ini 10 preventing fircj. explosions ond sX
                ci.H^iH'cdl reledio. Cc>IIcx|jvely. tdc pidtiiccs cmoinpcw |jim<.'» scifely fiyrri the dc'ilgn >'«19<-- ihiough ypereiliun,
                rnafncenanie and i(^[nirig.  The scope of this  Code includes nWriulaclurirtg. pfocesii/Kj, handliricj and oh-site sto/aye
                of chemicals. This Code must be implemented with full recognition ol the corrimuhiry's interest, expectations and
                pariiclpntibn in achieving saf« operations.

                The process safety management program In  each facility is complementad-by workplace health and safety programs.
                as well as waste and release reduction programs which address and minimize releases and waste generation. These
                three programs, and oth'ers, will help assure  that (IMA member facilities are operated in a mariner that protects the
                cnvirorwncrit find  Irk- health sine) stiffly wfpcfwxinvi ''"d Uio puUic.

                Ralntlonxhip to  Guiding Principle!

                The Code helps achieve sevcra! ol the Responsible Care11 Guiding Principles:
                  -b       	       '!    ,.::;!  ;        ;                            , •        ,;;.••.:  1  ,
                  • To recognize and respond to community  concerns about chwnirnls nnd our operations.
                  •To make health, safety and environmental considerations ;i priority in our planning for all existing and new plants
                    and processes
                  • To operate our plants and processes in a  manner thai protects the environment and the health and safery of our
                    employees and the public.
Technology

'I. C'tirrenr, complete documentation of process design
   and operating pai-amercrs nnd proecdui-cs.
8. CuriTiu, complete documentation of information
   u-laiiiip, u> il>c lu«jxds ol'inaioiinU and piuwis
   technology.
   I'criodic assessment snd documentation of process
   h;i7-ii'iG£iam dial includes:

Munugcnicnl Lentlership

1,  Lc^derthip by senior management through policy,
    pauidp(' expansions, aioUifiujiiuns »nd new sites on
                                                                           ihc co/nn\uniiy, enviromnciu, and triuployees.
                                                                        12. l;aciliry design, construction nnd maintenance using
                                                                           sound engineering practices consisrcnt with recognized
                                                                           codes .u ul standards.
                                                                                                                             000144

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13. Saft-ty reviews on all new and modified facilities during
    design and prior to srmT-up.
14. Documented maintenance ami inspection programs
    that ensure facility integrity.
15. Sufficient layers of protection through technology,
    facilities and employees to prevent escalation from a
    single failure to a carnstropluc event.
16. Provision for control of processes and equipment dining
    emergencies resulting from natural events, utiiiry
    disrupikms and other external conditions.

Personnel

17. Identification of the skills and knowledge necessary to
    perform each job.
18. Establishment of procedures and work practices for safe
    operating and maintenance. Activities.
19. Training for all employees to leach and maintain
    proficiency in safe work practices and the skills and
    knowledge necessary to perform their job,
20. Demonstrations and documentation of skill proficiency
    prior u> assignment 10 independent work, and
    periodically thereafter.
?.J. Programs designed to assure thar employees in safety
    critical jobs .ire fii for duty and arc not compromiwil  by
    external influences, including alcohol and drug abuse.
22. Provisions thm contractors either have programs for
    their o^n employee* consistent with applicable sections
    of this Code or be included in the member company's
    program, or some combination of ihc two.
Gloxjnry
i.'iii Code us.n key lemis in a mnuxi that may be Broader than
the* Asuwiaicd regulatory ovfinitionj. However; adherence jo
mK C'fxle docs not relieve a company of the oblir).=wt'ciii to meet
Federal, cute ond local raguWory fequimmenK.
Process  Safety • The ii|j|jlication of nvtnagcmenr anrt
fiK|!MC!:rinii principles to prevent fires, explosions ana ^(.u'duntal
chemicfll rMr-.«.t"i »u chemical process facilities.
Sound Engineering Practice TMv application of nuir>datory
cooas ,=j-itj \i,iMd«rds supplemented by the use 01 vntui Mty codes.
mnrVml} ond guidelines, tetnpcred by professioi'irfjudyrncnr.
S.ifcty Critical Jobs • Jobs, activirins Ar«i (kv. if improperly
|A7fo'med, th« have Die potential ro sigciifiointly inrj-ease  the
risk of A fa?, explosion or ardfJiTii/il (.Mtmical releas«.
Accldentiil Chemical  Release • Unplanned, sudden /cleasta of
chemical.'. r'rr«fi urcniuratturinq. processing, handlinfl anrt (in s;te
stor.ifjf loiilitics to thp air. wAtrt or land. Ir rioe< not inducJe
IM.-irniued ot other reieasei.


      .   Affrtfni t/j CMA'i KajrJ cfllinMtn ta Stftttxba 11, 1930.
                                                                                                                 000145

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Distribution
Code of Management Practices
Purpose

(he purpose of the Distribution Code o/ Manogr-meni hvicrices is ro reduce the risX of harm posed by the distribution
of chemicals to thg general public; lo carrier, distrihuror. contractor and themkyl industry employees; .ind to the
environment. Adherence to the Code will lead jo :              "'  .        '      •  ••'                        "i  "       I  I  '•'  •  '      ':.
Relationship to Guiding Principles

the Code helps achieve several Kesponsiblo Care* Guiding Principles:
            ,  'i  Jr ',    .nil!	   ' i                                          ,,'"'.       	,,i       ii     ,'       ;
  c 10 recognize and respond to community I.C.HK n/n /I[KJI/I  f iviv.iViM rind our operations.
  »Tp riiiike heal^fi. scifety is  in chemical distribution safety.
The program should include the following elements;

T, Rijlc Management
   1.1  Riguljr evaluations oCf.hc-mie.il disrrihiirion risks
       •which consider the ha*nds of the material, the
        likelihood of accidcnis/inridenrs and rhf porenri.il
        for huiiuu jud uwiroiuncnul exposure fi-om
        rclcoic of tltc nuierul over the loutc of tr.insj>fin
   1.2 linplcinciiuiioii of Uiulnicnl distiibuiion ri.n activities, and for implemcnring
                                                             those icguhuons and  standards.
                                                         2.2 Jiaining for all affected company employees in the
                                                             piopci iinplcmcnrarion nr'npplirnhle regulations
                                                             and, company requirunuits.
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    2.3 A program for providing guidance and information
        to curlers, distributors and contractors who perform
        distribution ar.liviiics for the company on ttic
        company's training and compliance requirements
       ' for the activities.
    2A Regular reviews of company employee, carrier,
        dixtribmor and contractor compliance with
        applicable regulations and company requirement::.
3.  Carrier Safety

    3.1 A process for querying earners of all modes and types
        (common, contract, private and customer conuullcd)
        thai transport chemicals to and From company
        facilities that emphasize* carrier safety fitness and
        regulatory compliance, and includes regular reviews
        of their performance and compliance.
    3.2 Feedback to carriers on their safety pc.rfoi mmiu:
        and  suggfiitions for imptuvvfiivnt.
4.  Handling and Storage
    4.1  Documented proccduics for the selection and use
        of containers that arc.  appropriate for the chcmUnd
        being sliippvd,  in compliance with testing and
        certification requirements, and free of leaks and
        visible defects.
    4,7. Douimented procedures for loadinp chemicals ai
        company facilities (hat will reduce emissions to the
        environment, protect .personnel and provide
        seaircmem of the lading during transit.
    4.3  Documented piucedures for unloading chemicals
        at the company's facilities that will reduce emissions
        to the environment, protect personnel, and provide
        for safe unloading imo proper storage facilities.
    4.4  Defined criteria for the cleaning and return of rank
        cars, tank trucks, marine vessels, and returnable/
        refutable bulk and semi-bulk containers, and for the.
        proper disposal  of dcaninf, residues.
    4.5  A program for providing guidance and inform.uiort
        to customers, distributors, and other receivers on
        proper procedures for  unloading nnd MOiing tin-
        company's chemicals.
    4.6 A process for selecting distributors and other
       facilities that srore or handle the company's
       chemicals in transit ibat cinphasJ7.es safety limes*
       and regulatory compliance and includes regular
       rcvkvvs of their  perforniance »nd compliance.
   4.7 Feedback ro distributors ,-ind operators of other
       facilities thai store or handle chemicals in transit
       on their safety performance and suggestions for
       improvement.
5.   J'jnvrjjf ncy 1'rcpjirediiess
    .S.I  A prc-a-ss for responding to chemical distribution
        aej-idcms/incidenfs Involving the company's
        chemicals,
    5.2  Documented piucedurcs for making informarion
        about the company's chemicals in distribution
        available 10 response agencies.
    5.3  A piogiam for mskinj facilkies and/or ivaining
        materials available to emergency response agencies.
    $.4  Dialogue, with state and local emergency
        planning organizations on tlw distribution and
        hi/aids of the company's chemicals to improve
        conununiry prrpaicdmwx to respond to  chemical
        distribution emergencies.
    5.5  1 Jiiiloguv. with the public on their concerns
        about chemical distribution safety, actions taken
        by the industry and the company  to improve the
        safVty of chemical distribution, ind  the effectiveness
        of emergency preparedness and emergency
        response -Assistance.

            AffnotJly CM/l't twiiJafDiitam an Nef,»,b,r -f, iyj>a.
                                                                                                           000147

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 Employee Health and Safety
 Code of Management Practices
 purpose
 fjje goal of ih« f-mptoycc Health and Safety Code, of M continuously improve work site health
 Jjnd safety, These practices provide a multidisciplinnry mMm ID identify ;ind Assess hazards, prevent unsafe acts and
  pruivciitig
    aiid pivmoiiit)* the health and safety of people walking
    at or visiting memhcr company woik sites, ihroiigli:
    publiilicJ policies; accountability for  implementation;
    and provision of sufficient rcsoiuces, including
    qtulifi«) health and safety personnel.
2S  Opportunities for employees to participate in
    developing,  implementing, and reviewing he.nlrh and
    tafcry programs.
5.  Provivionv. including tclccrion criteria, to confirm
    thai on-site contractors' programs me consistent with
    applicable Msiugcinciu I'nukcs of this Ctodc.
!' Ill ....... llli.l'i'lll
7.  Methods to identify and evaluate potential heal ih iintl
    safety hazards in planned or existing facilities, im-.luHmg
    fadlitics to be modified.
8.  Exposure asseiimcnts and safety analyses  to cvnUiHU-
    health and salo.iy lia/Ji^s 10 vinploycei- from  processes;
   .equipment: potentially ha'/arduus chemical, physical, or
    biological apents; or other woik site conditions.
9.  1 Icahh avsessments to dcicrinine employee medical
    fiuifss f»r specific job tasks.
10. r.mployce occupational medical surveillance programs
    tailored to work site hazards.

Prevention and Control

11. MccJiaiiisms for reviewing the design and modification
    ol facilities itid job tasks, raking into account the
    following hierarchy of controls:  inhcrciii safe design,
    material substitution, engineering controls, adroinistrarivc
    controls, and personal protective equipment.
12. Systems to verily rh»v health and safely equipment is
    propelly selected, maintained, and used,
13. I'rcvcmivc maintenance and housekeeping programs to
    maintain the salety of facilities, tools, and equipment.
M. J imcly investigation of woik site illnesses, injuries, and
    incidviiis; collective actions ro prevent 1'ccumsnce; and
    evaluation ol the effectiveness of rorrcciivc actions taken.
If'. Security procedures and systems to control entry and
    cue of personnel and  matciials at the work site and
    restricted areas,
16. Provisions for emergency medical assistance for people
    at work sires.

Communications and Training

17. Communication of health and safety information that
    is iclrv.ini co specific job tasks and the woik  site.
)tt. Health and safety training progutiu. including
    documentation ofihe.iA pio^rMins, and methods to
    evaluate tin1, cffeaivencss of hoth tnining and
    communications activities.
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  Product  Stewardship
  Code Of Management Practices
Purpose and 5cop«

The purpose of ihe Product ^.wardship Cane <,i Management Practices is 10 make Health, safrty end environmental
protection an intcflfdl part of reigning. maniAviunVKj. marking. crtxiributing. usir.y. recycling *ncl disposinn of
         CK' ThcCeKte provi<1" guidance as wrii ,» « mains m measure continuous imrovement in the  oli
                                    .              .          .           . ur.y. recycng *ncl disposinn of
    ™*  ,' ThcxCeKte provi<1" guidance as wrii ,» « mains m measure continuous improvement in the police
 or product stewardship.

 The scope of UK- Code covm «n stages oil  product* life. M/«csifiil implwncnlalion is a .shared lesponsibiliiy.
      0'              C product "* teP°riiiu"'IiK ro fl implement
    and maintain product stewardship praciic«s.

 Information  ami Characterisation

4.  Health, Safety a«acts induding the use of
                                                       cncj-gy and n.iiuial tesourccs key Considenrions in
                                                       di-sifyti/tg, developing and improving products and
                                                       processes.
                                                    8.  Hjnploycc Fdtication and Product Use Feedhack:
                                                       lyucitcs and ttaius employees, bised on job function,
                                                       on UK- proper handling, recycling, use.  and disposal of
                                                       pxxluux and known product uses. Implements « system
                                                       ihai encourages employees 10 feed back information on
                                                       new u.scs, idniiiflctl misuse* or adverse  effects for use in
                                                       pioJua risk duracterir-irion,
                                                                                                000149

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9,  Centner Mftrjutacturers: Selects eomraa manufac-
    turer* who employ appropriate practices for hcahh,
    safety six! environmental protection for die operations
    under contract, or works with contMct mamifnaurcis
    co help them implement such practices. Provides
    infornuiion jnd guidance approiwiaic to the pioriiui
    ana process risk to fatter proper harvdling, use, recycling
    and disposal. fct todtcally review* performance of
    contract roar^i(j«.tiirers.
10. Suppliers: Requires suppliers to provide appiopriaitf
    health. safety and awiroRmcninl infurinatlon and
    guidance on rKcir products, Faciurs adherence lo
    jound hc.ilth, jafccy, and cny'iruiuuenta! principles,
    jueh as rhnsv- combined in Rcsjionwhle Care*' into
    procurement decisions.
11, Diitriblitors: Provides health, safety and cnviron-
    mcmal tnfurinacion to dinriburorx. Coiuiuensurarc
    •with product risk, wlects. worla wirh and periodically
    reviews distributor to foster proper use, handling,
    recycling, disposal and rransiliitlal of appropriate.
    Information to downstream IKCIS. When  a company
    identifies imptojvi practices involving a piodact, it will
    work with the distributor to improve those pracrir,r.v. If,
    in the company's independent judgment, improvement
    I< not evident, then live company should  take further
    mrawes — up to and indudiii[; termination of the
    business relationship. Tim Management Puctice should
    be implemented ill unijunction with the Di-s-trihtition
    Code of Man«ige,m.eM Pratciccs.
12. Customer* and Other Direct Product lte
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                UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                           .   WASHINGTON, D.C. 20460

                                 OCT r 5  1998
                                                                         OFFICE OF
                                                                        CIVIL RIGHTS
Dear Title VI Implementation Advisory Committee Member,              .   .

       At the July 1998 meeting, the Title VI Implementation Advisory Committee (Committee)
requested EPA's Office of General Counsel (OGC) provide information on relevant case law that
might assist you in your work. Attached is the draft cas6 digest prepared by OGC in response to
Committee's request.  As is noted in the,attached transmittal memorandum, the case summaries
are provided for information and do  not reflect EPA's interpretation of the holdings.  I look
forward to seeing you In Tucson
                                Sincerely,
                                 Ann E. Goode
Attachment
                                             Appendix J: EPA Office of General
                                             Counsel Summary  of Other Civil Rights
                                             Precedents             000151
            Recycladfl?«cyclabl« -Printed with Vegetable Oil Based Inks on 100% Recycled Paper (20% Postconsumer)

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                  UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                WASHINGTON, D.C. 20460
                                    OCT  -5  i998
                                                                         OFFICE OF
                                                                      GENERALCOUNSEL
 MEMORANDUM
 TO:
 FROM:
 SUBJECT:
Ann E. Goode
Director
Office of Civil Rights
Mary M: O'Lon
Civil Rights Law Office

Response to EPA's Title VI Implementation Advisory Committee (Title VI
Committee) Request for Legal Research
 Attached is a draft of the digest of legal research requested by EPA's Title VI Implementation
 Advisory Committee (Title VI Committee) from the Office of General Counsel at the Title VI
 Committee's meeting in Philadelphia in July 1998.  The request for information was broad and not
 limited to Title VI of the Civil Rights Act of 1964 (Title VI) or civil rights case law. Due to time
 and resource constraints, and the desire to provide information on the topics requested in advance
 of the October Title VI Committee meeting in Tucson, the research and digesting focused
 primarily on Title VI case law, then Titles VT1, IX and other areas of civil rights law.

 As you know, EPA has begun work on a comprehensive and representative Tribal consultation
 .process regarding the applicability of Title VI to Tribes. In an August 31, 1998 letter to
 Haywood Turrentine, Chairman of EPA's National Environmental Justice Advisory Committee,
 Kathy Gorospe, the Director of EPA's American Indian Environmental Office, outlines EPA's
 efforts and plans for the consultation process (attached).  Therefore, the digest does not focus on
 the questions related to Title VI and Native Americans.

 The enclosed digest is draft and provided at the request of and as a service to Title VI Committee
 members to help direct them to cases that might be useful in their work. The case summaries are
 provided for information only and do not reflect EPA's interpretation of the holdings. The case
 digest has not been approved by the Department of Justice and should not be cited or quoted for
 other purposes. The digest does not necessarily represent all case law relevant to each of the
' questions asked nor concerning each of the identified areas of law.  Should Title VI Committee
                                                                  \

                                                                           '000152
                                                                         $& Printed on Recycled Paper

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                                        -2-

members know of other cases that they.believe EPA should be aware of, they should be
encouraged to contact me at (202) 260-1487.
  ; ""|     "''   : ,t 1  	!|        s                                    • ,  i
  I!"1         1 :: 'I;1 .,  	!!'                     '          , '        ;        !
Attachments (2)

cc:   , Scott Fulton
      Acting General Counsel

      Rafael DeLeon
      Acting Associate General Counsel
      Civil Rights Law Office
                                                                      000153

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DRAFT
                              10/5/98
            Response to EPA's Title VI Implementation Advisory Committee
                              Request for Legal Research

DISPARATE IMPACT

       A. What constitutes "disparity"; how much mest the difference be?

             Title VI

Villanueva v. Carere. 85 F.3d 481, 487 (10th Cir. 1996).  Court rejected Plaintiffs' Title VI-
disparate impact claim that the opening of a non-traditional school to address the needs of "at
risk" and minority students disparately impacted Hispanic students, on the ground that there was
no disparate effect. The experimental school's enrollment was approximately 50% Hispanic
"compared with approximately the same proportion of students" in the school district.

New York Urban Leasue v. New York, 11 F.3d 1031 (2d Cir. 1995)'.  The Metropolitan Transit.
Authority (MTA)  operates New York City's bus and subway, and commuter rail systems. The
bus and subway systems carry 1.5 billion passengers per year and  the rail system carries 135
million passengers per year (the court did not break that down, any further). MTA proposed to
increase bus and subway fares by 20%. Plaintiffs alleged that bus and subway riders, who were
predominantly minorities, paid a higher percentage of the  cost of operating that system (i.e.,
"farebox recovery ratio"), than did commuter rail users, who were predominantly white. The
court held, in part, that the farebox recovery ratio is not a sufficient basis for a finding of disparate
impact, thereby reversing the district court's preliminary injunction. The two transit systems are
so fundamentally different in terms of operating schedules, maintenance, subsidies; etc., that the
court felt comparisons of farebox recovery ratios were not meaningful.     .

Chicaso v. Lindlev. 66 F.3d 819 (7th Cir. 1995). The Older Americans Act (OAA), 42 U.S.C.
3001-3058ee, directed the federal government to distribute funds to the states in order to provide
services to "older individuals" (iie., over 60 years of age). The State of Illinois developed a
formula to allocate its money among the local jurisdictions." That formula considered, among
other tilings, the number of older individuals who are members of minority groups, who live in
rural areas, and who are at least 75 years of age. The City of Chicago claimed that the latter two
factors discriminated against minorities because older individuals  living in rural areas are 98%
 non-minority and 13.7% of the state's older individuals are minorities, but only 10.7% of them are
 over 75.                ,.      •               '
        The court concluded that no disparate impact existed, affirming the district court's
 summary judgment against plaintiffs on Title VI.  The court found that Chicago actually received
 a disproportionately large share of the OAA money because Illinois' formula provides additional
 distributions for minority areas like Chicago.  Moreover,  even if Illinois' formula had not lead to a
 favorable result for Chicago, Title VII precedent does not indicate a disparate impact here.  In
 Connecticut v.  Teal. 457 U.S. 440, 450-51 (1982), the Supreme  Court found that use of a test to
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  DRAFT
                                                                                    10/5/98
  screen out candidates for promotion caused a disparate impact on minorities because it created a
   discriminatory bar to opportunities," notwithstanding the fact that a higher percentage of black
  employees ultimately received promotions.  In this case, Illinois' formula benefitted minorities by
  including an explicit factor for minorities and it never deprived minorities of any opportunity for
  benefits.                                 ,                  "   .       ,
Riles 793 F.2d 969 (9th Cir. 1984).  In the mid-1960s, the state of
         .                              .               .      .           -,
  California established a program for students with educational problems. Students were placed in
  various parts of the program on the basis of I.Q. tests.  Plaintiffs alleged that the program
  discriminated against black students as evidenced by the disproportionately high percentage of
  blacks in the "educable mentally retarded" (EMR) program.  Students classified as EMR would
  not return to the schools' mainstream program.  The court agreed with plaintiffs on the basis of
  the statistical data.  Specifically, the court noted that black students comprised about 9% of the
  state school population, but they accounted for 27% of the EMR population, and that the
  Kkelihood of a colocrblind system leading to such a result was one-in-a-million.  Id at 973.
  Ultimately, the court found the state in violation of Title VI.  Id at 983 .
     ,i,l'     '' :''" Hi'T"1  '„ " ''a''  ''  ' ''"l|11 '  ' ' ''"       '' '''!•     '','"•'   ''  ~   '' ,' '  '. .•"  . '  !  ! '  '
            '   'i' ' ''    " .....                 '         '
            eor uWmatety found that defendants justified the location of the highway for
 nondiscriminatory reasons.  Id. at 127-29.
     jjl, ,  •      •  niir j   •;,..'         ,                ,         ,          |     , !  J •

              title Vn
     ,   '    •  :l .....  ^ ..... ;:  i.           -i    •     •  :•   .      •   -i-i  .-     -I
 Watson v. Ft. Worth Bank & Tntxt  487 U.S. 997, 101 L. Ed 2d 827 (1988). The Court
 established  the general principle that the statistical disparity must be sufficiently substantial that it
 raises an  inference that the allegedly discriminatory act caused the alleged detrimental effect on
 members of a protected group because of their membership in that  group. The Court refused to
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DRAFT
                                    10/5/98
set a rigid mathematical formula for determining a discriminatory disparity and held that case-by
case determination of substantial significance is appropriate with consideration of all surrounding
facts and circumstances. The Court recognized that Courts of Appeals have sometimes used the
mathematical "Standard deviation" (S/D) analysis (explained in case summary ofOttaviani, infra)
as guidance in applying this general principle to specific cases. However, the Court emphasized
that neither this formula, nor any alternative formula can be determinative in establishing a
sufficiently substantial disparity to raise an inference of discrimination and make out a.primafacie
case of disparate impact based on the disparity alone.

                    Standard Deviation Analysis ("S/D")

Oasteneda v. Partida. 430 U.S. 482, 496 n.17, 51 L. Ed. 2d 498 (1977). (Jury selection case
which courts have applied in Title VII context.) The Court recognized that for a large sample,
where the actual selection rate for the protected group is greater than 2-3 S/Ds from the expected
rate, the selection procedure is suspect. For a 11-year period, 870 Mexican-American residents
were summoned for jury duty jn a Mexican-American population of at least 120,766.  Statistical
disparities between white residents summoned and Mexican-American residents summoned which
ranged from 12 S/Ds to 29 S/Ds was sufficiently substantial to establish aprimafacie case of
discrimination.

HazelwoodSchoolDist. v. U.S.. 433  U.S. 299, 309-311, 53 L.Ed. 768, 778-79 (1977).  Court
recognized that the standard deviation analysis is useful as a method for interpreting statistical
evidence in employment discrimination cases.  First, the Court examined statistics comparing the
numbers of teachers on Hazelwood's staff for two school years with the numbers of qualified
black teachers in the relevant labor market.  By the end of the 1972-73 school year, 16 of 1107
staff teachers were black, and at the  end of the 1973-74 school year 22 of 1231 staff teachers
were black. There were 19,000 qualified teachers in the St. Louis area's workforce, 15.4% of
whom were black. Hazelwood contended that statistics concerning the racial composition of
qualified teachers in city of St. Louis should be excluded from the relevant labor market resulting
in a market which was only 5.7% black.  (The Court adopted the 5.7% figure arguendo.) In
analyzing these statistics,  the Court recognized the Castanenda "greater than two or three
standard deviations"  rule for statistical significance and found that differences between the
expected and actual number of black teachers on staff in the Hazelwood School district given the
percentage of qualified black teachers in the relevant labor market for 1972-73  school year of
more than 6 S/Ds and for 1973-74 school year of more than 5 S/Ds were "on their face
substantial."
        Secondly, the Court examined statistics which compared the percentage of black teachers
hired of the total number of teachers hired in the two school years with the percentage of black
qualified teachers in the relevant labor market. Of 280 new teachers hired in 1972-73 school year
 10 (or 3.52%) were black, and of the 123 new teachers hired in the 1973-74 school year 5 (or
4.1%) were black. Combining the statistics for the two years: of the 405 new teachers hired, 15
or (3.7%) were black.  The Court held that if the 5.7% figure for the number of black teachers in
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  •linll :; , : ITU ...... i- : ' ....... 1 ..... 1!, ! ....... .1 IN ...... II' K
    •      '
                     ' .......... I'' ............ I'l \ ..... I, I,. 1
                                                                       I'll"1" '•':!'  "tifli
                                                                          il-   r  •
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                                                                                 10/5/98
 the relevant labor market were used for these statistics (yielding results of less than 2 S/Ds for
 1972-73, less than 1 S/D for 1973-74, and less than 2 S/Ds for  1972-74) this statistical evidence
 would weaken theGovernment's other proof of discrimination. On the other hand if the 15.4%
 figure was used (yielding results of more than 5 S/Ds for 1972-73, more than 3 S/D for 1973-74,
 and more than 6 S/Ds for 1972-74) this statistical evidence would strengthen the Government's'
 other proof of discrimination. The Court remanded the case for consideration of the appropriate
 comparative figures. (There is no record of the remanded case.)
     :       "" "	   • '•:          • -            ....    .        i    . ; i    „ , ,  ,  i h     	     ^ , .
 Ottaviani v. State University of New York at NewPaltz. 875 F.2d 365 (2d Cir. 1989), cert..
 defied, 493 U.S. 1021 (1990). (Disparate treatment case relied upon by some disparate impact
 cases.)  The Second Circuit explained that the standard deviation method is commonly used to
 calculate whether a statistical disparity raises an inference of discrimination in a disparate
 treatment case. This method measures the probability that the difference between an actual result
 and predicted result is random: the greater number of standard  deviations between an actual and
 a predicted result, the less likely that chance alone is the cause of the disparity and the more likely
 that the disparity is caused by other factors. '
       A standard deviation of "2" (approximately a '.05 probability) means that there is a 1 in 20
 chance that the explanation for the. difference between actual and predicted result is random and a
 19 in 20 chance that the disparity was caused by other factors. A finding of 2-3 S/Ds is
 approximately one in 384 chance that the result is random.  An S/D of 4-5 corresponds to a
 probability of 1 chance in 15,786 to 1 chance in 1,742,160. [The Court refers to M. Abramowitz
 & I. Steigan, Handbook of Mathematical Functions, National Bureau of Standards, U.S. GPO,
 Applied Mathematics Series No.- 55 (1966) tables 26.1, 26.2 for these calculations] The Court  .
 recognized that federal courts have generally held that a showing of more than two standard
 deviations allows the plaintiff to establish zprima facie case of discriminatory treatment based on
 the statistical disparity alone. Although the Court agreed that a result of 2-3 S/Ds CAN BE
 highly probative of discriminatory treatment, it refused to establish any minimum threshold of   :
 statistical significance mandating a finding that zprimafacie case has been made.

Anderson v. Douelas & Lomason Co.. Inc.. 26 F.3d 1277 (5th Cir. 1994), cert, denied, 513 U.S.
 1149 (1995)-  Court explained that the standard  deviation formula used in HazehvoodSchool
District v. United States was as follows:
       NUMBER OF STANDARD DEVTATIONS= O-NP/ /NP (1-P)
       O= Number of blacks who  received a promotion
       N=Number of workers who received a promotion
       P=Probability of a black being promoted from the relevant population

 Waisome v- Port Authority of New York and New Jersey. 948 F.2d 1370 (2d Cir.  1991).  Court
recognized the rule that aprima facie case of disparate impact can be shown either by (1)
showmg a gross statistical disparity or (2) statistically significant disparity coupled by other
eYidence of discrimination (does not specify what is a "gross" disparity as opposed to a
  3!!i;!:  ,    ,   Ji!«5  :>!  '   '   '     '!	"    '         : ,    !'•.•''„ >'£"'   'li  •','',•" V'      '    :
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  «!„'  '    '   '	•  , r1	1     «       .. i  ' .  ' • '     -       • '	  •  •	"' ', •  '  "  I     "   	•    ' • I"   '. t.
                                                                               000157

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DKAJPI
                                10/5/98
"significant" disparity- and does not describe what types of other evidence is acceptable).  Court
stated "Statistical evidencjp may be probative where it reveals a disparity so great that it cannot be
accounted for by chance;" Generally, a finding of 2-3 S/Ds is highly probative of discrimination
(citing Ottaviani), but there is no minimum threshold which mandates a finding that Title VII is
violated. Other considerations are necessary: (1) sample size must be considered (the larger the
sample size, the more reliable the statistical disparity is in showing discrimination because when a
sample is relatively small, a difference in the status of one or two members of the protected class
can determine whether the result is statistically significant), and (2) whether the groups analyzed
are the proper groups. In this case, the court found that a standard deviation of 2.68 was
statistically significant but did NOT establish a sufficiently substantial disparity because the
statistics were of a limited magnitude: if two more black candidates had passed the examination at
issue, the statistical result would no longer be significant. Six hundred seventeen persons took the
test, 508 of whom were white and 65 of whom were black.  Of the 539 persons who passed the
test, 455 were white and 50 were black. The white, passage rate was 89.57% and-the black
passage rate was 78.13% Thus the black pass rate was 87.23% of the white pass rate. (The court
also used the 80% EEOC rule described on p. 12, infra, to find no inference of discrimination.)

Emanuel v. Marsh. 897 F.2d 1435, 1442  (8th.Or.  1990), reh'gdenied, 1990 U. S. App. LEXIS
7869 (8th Cir. 1990). Employer used receipt of performance awards as one factor in promotions.
Nine hundred nineteen performance awards were granted. Black employees received 22 or
18.2% of the performance awards granted.  However, blacks employees constituted 30.5% of the
workforce or 1022 of 4187 total employees, and thus the expected'number of awards to be
granted to black employees was 55. The  actual number of awards granted to black employees
differed from the expected number by 4.9 S/Ds.  The court found that this disparity was
statistically significant and, in light of evidence of past discrimination against the plaintiff, made
out aprimafacie case that use  of the performance awards had a disparate impact,

Bridgeport Guardians. Inc v. City of Bridgeport. 933 F.2d 1140, 1146 (2d Cir. 1991), cert.
denied,  502 U.S. 924 (1991). The Second Circuit stated: "[I]f a given pattern can be expected to
"occur at least five times in  100 (i.e., once in 20 times [or approximately 2 S/Ds]) it can reasonably
be attributed to "chance; a pattern of test results that would be expected to occur less often is
considered to be statistically significant."  Of the 170 persons who took the test, 115 were white,
28 were Hispanic, and 27 were black. Of the 99 persons who passed the test, 78 were white, 13
were Hispanic and 8 were black.  The Second Circuit accepted the results of a "Mann-Whitney
analysis" (statistical analysis used for small samples which is  not explained in the case and which is
not specifically cited by more that a few court decisions) of this data which determined that the
likelihood of the actual black versus white test results occurring by chance was 1  in 10,000 and
the actual Hispanic versus white test results occurring by chance was 2 in 10,000. The Second
Circuit held that both results were statistically significant and demonstrate a.prima facie case of
disparate impact.
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Peiehtal v. Metropolitan Dade Countv~26 F.3d 1545, 1556 (llth Cir. 1994). Reverse-
discrimination case.  Eighty-six firemen were hired.  Court held that where the difference between
the expected and actual percentage of hiring of Hispanics in fire department, given the percentage
of age-eligible population was 17.6 S/Ds (the result would occur once in one billion cases by
chance), the statistics inferred race-based selection.  (Population sample size unavailable.)

Rivera v. City, of Wichita Falls. 665 F.2d 531, 536 (5th Cir. 1982). Court held that a disparity of 9
S/Ds between the actual and expected passage rates of Mexican-American test-takers was
sufficient to raise a compelling inference that language test had a disparate impact on Mexican-
Americans since a result of more than 2-3 S/Ds is generally sufficient. Of 422 test takers, 35 were
Mexican American and 387 were white.  Of the 35 persons who failed, 14 were Mexican
American and121 were white.

Rendon v. AT&T Technologies. 883 F.2d 388 (5th Cir. 1989). The court examined 122
promotions.  Court held that a disparity of 2.9 S/Ds between the expected and actual number of
promotions of black  and Hispanic employees was sufficient evidence of discrimination. Court
rejected the Defendant's argument that there must be at least 3 S/D before an inference of
discrimination to arise.
                                                             • .    i
           	        .                  .      	.. •!
                    Ratios—And Other Common Sense Judgments  of Sufficient
                    Substantiality
 (Most of the ratios included below were calculated by Schlei and Grossman (designated .by
'•S&G") in the treatise, Employment Discrimination Law, Second Ed. at p. 99 (1976). This
treatise is repeatedly cited by court opinions and law review articles. The ratios were computed
according to the following formula:

       S1/S2 = Selection Ratios where X/NP= S1 and Y/P= S2

       X= Total number of non-protected persons selected
       NP= Total number of non-protected persons in the pool
       S1= percentage of non-protected persons selected
       Y= Total number of protected persons selected
       P= Total number of protected persons in the pool
       S2= Percentage of protected persons selected

Dothardv. Rawlinson. 433 U.S. 321 (1977). Alabama's minimum height and weight
requirements for hire of correctional counselors had an actionable disparate impact on women
where: (a) the height requirement excluded 33.29% of the women in the U.S., but only excluded
1,28% of the men in  the U.S.; (b) the weight requirement excluded 22.29% of women and only
2.35% of men; and (c) only 58.87% of the women in the U.S. met both the height and the weight
requirements while 99% of the males in the U.S. met both requirements.
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Griszs v. Duke Power Co.. 401 U.S. 4-25 (1971).  Court addressed employer's requirement of
high school degree and passage of general intelligence test as conditions of hire and transfer.
Court held that where 32% of white males in state had completed high school while only 12% of
black males in state had completed high school, the. high school diploma requirement had a
sufficiently substantial disparate impact on blacks. Court also 'held that where 58% of whites
passed the general intelligence test while only 6% of blacks passed the test, the requirement of a
passing score had a sufficiently substantial disparate impact on blacks.  (Sample size is not
available.)

Chance v. Board of Examiners of the City of New York. 458 F.2d 1167, 1171-73 (2d Cir. 1972).
From a survey of 6000 applicants who took a supervisory school licensing test, where the test
passage rate of non-protected grbup was 1.5 times the passage rate of the protected group, a
sufficiently substantial disparity was shown. S&G noted that this may be the lowest disparity held
to constitute the required "sufficiently substantiaTdisparity for aprimafacie disparate impact
case.  SQQ Employment Discrimination Law, Second Ed. at p. 99.

Fraiser v. Garrison ISP. 980 F.2d 1514 (5th Cir. 1993).  Court held that a difference of 4.5% in
the teacher competency passage rates of blacks vs. whites was not a sufficiently substantial
disparity to make out aprimafacie case. (Sample and pool sizes are unavailable.)

Bunch'v.  Bullard. 795 F.2d 384, 395  (5th Cir. 1986). Court found-sufficiently substantial
disparity where 12 of 14 white test-takers passed test while only 3 of 13 black test-takers passed
the test. No other evidence of discrimination was presented.  The court explained that although
the S/D analysis is often helpful as a measure of disparate Impact, it is not the only measure,
especially where, as in this case, sample sizes are too small to subject to S/D analysis.

Bushev v. New York State Civil Service Commission.  733 F.2d 220, 225-26 (2d Cir. 1984), cert.
denied, 469 U.S. 1117 (1985).  Court held that where a test passage rate of non-minority group
was twice the passage rate of the minority group, the required "sufficiently substantial"disparity
was shown.  Of the 275 total test takers, 243 were non-minority and 32 were minority.  Of the
127 test takers who passed, 119 were non-minority and 8 were minority.

Crais v. County of Los Anveles. 626 F.2d 659, 661-62 (9l:h! Cir. 1981), cert, denied, 450 U.S. 919
(1981).  Court found that the following statistics constituted a sufficiently substantial disparity to
make out aprimafacie  case: For one hiring test, 45% of the Mexican-Americans who took the
test failed while only 23% of whites failed.  For a second test, 33% of Mexican-Americans failed
while only 13% of whites failed. (Sample and pool sizes are unavailable.)

United States v. County of Fairfax. 629 F.2d 932 (4th Cir. 1980), cert, denied, 449 U.S. 1078
(1981).  Court found a sufficiently substantial disparity where passage ratios (all S&G) for several
tests were:
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        1.77:1- Of 624 test takers, 422 of 544 whites passed (77.6%), and 35 of 80 blacks passed
 (43.8%) •
        1.84:1-Of 174 test takers, 153 of 166 whites passed (92.2%), and 4 of 8 blacks passed (50%)
        1.28:l~Of 460 test takers, 264 of 325 whites passed (81.2%), and 85 of 135 blacks passed (63 %)
        1.67:1-Of 1274 test takers, 300 of 324 whites passed (92.6%), and 525 of 950 blacks passed
 (55.3%)
        7.49:1-0/360 test takers, 184 of 346 whites passed (53.2%), and 1 of 14 blacks passed (7.1%)
• However, the court remanded for consideration of the Defendant's "bottom line defense." [It is
 unclear whether the court would have considered the 1.28:1 ratio to be sufficiently substantial if it
 were considered separately from the other greater disparities.]             .

•Moore v. Southwestern Bell Tel. Co.. 593 F.2d 607, 608, ti.l, 2 (5th Or. 1979). A test passage
 rate differential of 7.1% (S&G's ratio of 1.08:1) was not sufficiently substantial disparity. Of the
 746 persons taking the test, 469 were white and 277 were black. Of the 701 persons who passed
 the test, 453 (or 96.6%) were white and 248(or 89.5%) were black,
                                                                     |
 Firefighters Institute for Racfal Eaualitvv. City of St. Louis. 549 F.2d 506, 510 n.4 (8th Cir.
 1977), cert, denied, 434 U.S. 819 (1977).  Firefighter exam passage ratio (S&G) of 1.71:1 was
 sufficiently substantial disparity.  Twenty-five and one half percent of blacks taking test passed,
 and 43,65% of whites taking test passed.  (Sample size is unavailable.)
 '',,'!' „         I!1  .1' ' '"i'l'l      '!!:    • • '          -!' , '  .      .     ,      „  sil"*'  i   i •  II     •   •        '

 United States v.  Citv of Chicago.549 F.2d 415,429 (1977), cert, denied, 434 U.S. 875 (1977).
 potential promotion ratios (S&G) of 2:1  anA3.17:l were sufficiently substantial disparities. Of
 6555 persons  who took patrolman's exam, 1298 were black or Hispanic and 5257 were not.  Of
 the 1918 patrolman who passed the test only 400 had a realistic chance of promotion, 29' of whom
 Were black or Hispanic (2.23% of the 1298 who  passed) and 371 of whom were white. Only
 1,77% of the blacks who passed the test had a realistic chance of promotion.

 Watkins v. Scott Paper Co.. 530 F.2d 1159,1186 (1976), cert, denied, 429 U.S. 861 (1976).
 Hiring test passage ratio (S&G) of 1.37:1 was not sufficiently substantial disparity. Of the 68 test
 takers, 7 were black and 61 were white.  Of the 26 persons who passed, 2 were black (or 28.6%
 df the blacks taking the test) while 24 were white (39.6% of the whites taking the test). Court
 also stated that even if disparity was larger, the sample size was too  small for .the statistics to have
 meaning.
 .,«", ii" « .    , ,   •	  14	  ,     ., ,                      „.          , •  ,,|,,       .1  'I ,' ,   •	          	' ','
 ,f,, , I,           ,!',," I  I    „             '           ,|          „ ,  ,|i,      . .1  j i „                '
Bridgeport Guardians v.  Bridgeport Civil Service Commission. 482 F.2d 1333, 1335 (2d Cir.
 If 75). Court examined policeman's written exam passage rates.  Of 644 exam takers, 568
 (88.2%) were white and 76 (11.8%) were black or Hispanic.  Of the 342 test takers who passed,
 329 (58%) of the white test takers passed while only 13 (17%) of the black and Hispanic test
 takers passed. Thus the passing rate for white test takers was 3.5 times the passing rate for black
 anil Hispanic test takers.  Court held that this disparity was sufficiently substantial.
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Newark Branch ofNAACP v. Harrison:940 F.2d 792 (3d Cir. 1991).  Where police department
had no black employees and traditionally hired from a geographic area containing 214,747 black
residents, the Eighth Circuit found that a discrimination was'at least suggested.

Carter v. Gallagher. 452 F.2d 1167, 1171 (8th Cir. 1971), cert, denied, 406 U.S. 950 (1972).
Where no member of the protected groups were employed by a fire department having 535
employees, adverse impact was found.

                    29 U.S.C. 1607 (4D) Standard

       Some cases use the EEOC Uniform Guidelines on Employment Selection Procedures as a
"rule of thumb" in determining whether a disparity is significantly substantial to raise an inference
of discrimination.  See Watson v. Ft. Worth Bank & Trust. 487 U.S. 997, 995 n.3 (1988), and
authority cited therein. The Guidelines provide that discrimination will generally be inferred
where, assuming a sufficiently large-sample, the members of a protected group are selected at less
than 4/5 or 80% of the rate of selection of members of the group with the highest selection rate.
(EEOC 80% or 4/5 rule.) Conversely, discrimination will generally not be inferred where the
members of a protected group are selected at more than 4/5 or 80%, although smaller differentials
may infer adverse impact where they are significant in statistical and practical terms.  See
Wdisome. 948  F.2d 1370, 1376 (2d Cir. 1991) (evidence that pass rate of black candidates was
more than 4/5 of the pass rate of white candidates is "highly persuasive proof that the adverse
impact was not substantial and did not support finding of disparate impact). This 80% formula
has been criticized on technical grounds, as noted in Watson (487 U.S. at 997, 995 n.3 and
authority cited therein).                           .

                    Other Considerations

Bazemore v. Friday. 478 U.S. 385, 400 n.9 (1986). The Court found that to be probative of
discrimination, a plaintiffs statistics need not take into account all of the measurable variables, but
only those major factors that are potentially responsible for any disparity.

Mozee v. American Commercial Marine Service Co.. 940F.2d 1036,  1037 (7th Cir. 1991), cert.
denied, 506 U.S. 872 (1992).  Court found that a hiring rate of whites that was six times the
hiring rate of blacks was statistically significant.  But the court noted that even where the disparity
is statistically significant, the court must take into account variables that one might expect would
account for the disparity.

Coatesv. Johnson & Johnson. 756 F.2d 524, 532-33 (7th Cir. 1985).   The court found that to be.
probative of discrimination, a plaintiffs statistics must account for the most common non-
discriminatory explanations for any disparity.
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 Smith v. Trovan. 520 F.2d 492, 497-98-(6th Cir. 1975), cert, denied, 426 U.S. 934 (1976).
 Hiring ratio (S&G) of 1.14:1 was not sufficiently substantial disparity. Thirty-three percent of the
 applications received were from blacks and 29% of hirees (7 of 24) were black. (Total number of
 applicants is not available.)

 Douslas v. Hampton. 512 F.2d 976, 982 (B.C. Cir. 1975).  Test passage ratios (S&G) of 4.85:1
 and 5.1:1 were both sufficiently substantial disparities. In colleges which were 95% black, the
 test passage rate was 12.4% as compared to a 60.2% passage rate for schools which were 95%
 white.  In colleges which were 99% black, the test passage rate was 11.5% as compared to a
 57.8% passage rate for schools which were 99% white.  Sample size: 50,000 students.

 Ylthas v, Libbv Owens Ford Co.. 562 F.2d 496 (7th Cir. 1972), cert, denied, 435 U.S. 934
 (1978).  Court found that no-spouse hire rule caused sufficiently substantial disparity where 71 of
 74 applicants who were disqualified by the rule were female.
                                                                   !
 Castro v. Beecher. 459 F.2d 725, 735 (1st Cir 1972).  Of 80 black applicants who took policeman
 civil service exam, only 20 (or 25%) passed.  Only 10% of the Spanish-sumamed applicants
 passed, and 65% of all other applicants passed. Court held that this result showed a sufficiently
 substantial disparity.
           • '•    '"'                  "'                        '       |
                                            ,  •,             ";      ,  j                    j
                     "Inexorable Zero"
 International Brotherhood of Teamsters v. US. 431 U.S. 324, 342 n.23 (1977).  Evidence that no
 member of a protected class were hired by an employer in a population containing a sizable
 number of the members of the protected class is highly probative of discrimination.  This
 statistical result is known as the "inexorable zero."

 NAACP v. Town of East Haven. 70 F.3d 219 (2d Cir. 1995). Second Circuit found that where a
 town with sizable black population had never hired a black full time employee, a high probability
 of discrimination existed.

 EEOC v.  Steamship Clerks Union Local 1066. 48 F.3d 594, 605 (1st Cir. 1995), cert, denied,
* 516 U.S.  814 (1995). Union policy, which required that new applicants be sponsored by an
 existing union member sponsor new applicants, caused sufficiently substantial disparate impact
 where no black or HQspanics had been granted union membership while the local labc*" force was
 21% black and 6% Hispanic.
                                                                   I
 EEOC v,  O & G Spring Wine Farms. 38 F.3d 872, 878 (7th Cir. 1994), cert denied, 131 L. Ed.
 2d 148 (1994). Court held that the defendant could not overcome the inference of discrimination
 established by evidence showing that it had no black employees despite the fact that applicant
 pool was 20% black.
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Thomas v. MetroflizHt. 814 F.2d 1506," 1509 (10th Cir. 1987). Where "no-spouse" hiring rule
was only enforced in two instances, and in both instances a female was excluded from hiring
process, this statistical evidence alone was insufficient to estaiblish a prima facie case of disparate
impact because "a sample of 2 is too small to make even 100% impact rate significant."

Harper v.  TWA. 525 F.2d 409 (8th Cir. 1975).  Evidence that 4 of 5 applicants rejected because
of no-spouse rule were female was inadequate without other evidence to show disparate impact of
rule on females because sample size was too small.                     .

Robinson  V. City of Dallas. 514 F.2d 1271, 1273 (5th Cir. 1975). Court held that sample size of
7 was too small to yield a significant statistical disparity.

Morita v.  Southern California Permanente Medical Grow. 541 F.2d 217, 220 (9th Cir.  1976),
cert, denied, 429 U.S. 1050 (1977)^  Court held that sample size of 8 persons who received
promotions was too small to yield a significant statistical disparity in promotions even where only
one of the eight was black.                                         .

Drake v. Citv of Ft. Collins. 927 F.2d 1156, 1161 (10th Cir. 1991).  Court held that sample of
• one is too small to yield a significant statistical disparity.

              Title Vm

Edwards v. Johnston Cntv. Health Dev 't. 885 F.2d 1215 (4th Cir. 1989).  The Johnston County
Health Department (JCHD) issued permits to operate housing facilities for migrant farm workers,
 90% of whom are minorities in Johnston County (the number of workers in the county is not
 mentioned). Owners of two farms received permits from JCHD, but their facilities failed to satisfy
 JCHD's standards:  Plaintiffs, six black migrant farm workers, alleged violations of Title VTJI, the
 Fair Housing Act of 1968, by JCHD for issuing permits to substandard facilities. To determine
 Whether minorities suffered a greater adverse impact, the court looked at "whether the policy ia
 question had a disproportionate impact on the minorities in the total group to which the policy
 was applied." Id at 1223  (citation omitted).  Plaintiffs had to prove that JCHD's actions affected
 minorities to a greater degree than white. Id For example, if JCHD approved substandard
 housing for minorities,, but not for whites, the court would have found their argument compelling.
 Id at 1224. Plaintiffs, however, were only able to show a "statistical imbalance" (court  did not
 define that term), which the court found to be inadequate arid, therefore, they upheld the district
 court's dismissal of plaintiffs' claims.  Id at 1223.  The court's opinion did not delve into
 statistics  other than to note that more minorities than whites would be affected by the living
 conditions simply because 90% of migrant farm workers were minorities.
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iff
                         Title DC
Cohen v. Brown University. 991 F.2d 888, 894 (1st Cir. 1993).  Court held that, in athletic
discrimination suits, a Title IX violation may not be found solely on the basis of a disparity
between the gender composition of the institution's student body on the one hand and the gender
composition of those students actively participating in athletics on the other. Statistical evidence
must be accompanied by further evidence of discrimination such as unmet need amongst the
members of the disadvantaged gender. However, the court held that there is no Title DC disparity
when an institution distributes athletic opportunities in numbers which are "substantially
proportionate'' to the gender composition of the student body— substantial proportionality
provides a "safe harbor" for schools. In this case, the court found that an 11.6% disparity
(females had 36.6% of the athletic opportunities, but comprised 48% of the student body) "did
not even approach" the substantially proportionate threshold.  No sample size is given for the
student body. Before the University cut four varsity teams (the act challenged in the case), there
were 328 females participating in varsity sports and 566 males participating in varsity sports at the
University. The court did not specify the number of male and female students who  participated in
varsity sports after the four teams were cut, but found that the relative percentages  of
participation did not change significantly.

Pederson v. LSU. 912 F. Supp. 892 (M.D. La. 1996). Court expressly disagreed with Cohen in
hojding that there is no "safe harbor" for schools which distributes athletic opportunities in
"substantially proportionality" to the gender composition of the student body. Even where a
spool's. athle|ic program is precisely proportionate, it could still violate Title DC if it disparately
accommodates the desire and abilities for athletic opportunity between the two genders. In this
case, 51% of student body was male while 71% of LSU's athletic participants were male.  This
evidence in combination with evidence showjng that LSU was not accommodating at least those
females who wanted to play collegiate softball, suggested that LSU had violated Title DC. (Sample
and pool sizes are unavailable.)

Beaslev v. Alabama State University. 966 F. Supp. 1117, 1125 (M.D. Ala.  1997).  Court held
tljat plaintifFs allegation of a 32% disparity between numbers of female students who actively
participated in athletics and numbers of females enrolled was sufficient to state a claim under Title
D>.  (Sample and pool sizes are not available.)
        ! _   ..,. ,  .,.,,,„              ,     .              ,  ,             ',,!],

Fervid v. Indiana Univ. of Pa.. 812 F.  Supp. 578, 585 (W.D. Pa. 1993). Court noted that where
37.77% of a university's intercollegiate athletes were female and the university's student body
was 55,61% female, the university did not provide substantially proportionate athletic
opportunities.  (Sample and pool  sizes are not available.)

Roberts v. Colorado State University. 814 F. Supp. 1507 (D.  Colo. 1993), aff'dinpart and
reversedon other grounds, 998 F.2d 824 (10th Cir. 1993), cert, denied, 510 U.S. 1004, 126 L.
 nl ''"  '  " " '     ' ''   	            "                 '   	   	   	I ' " "'     	      '
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Ed. 470 (1993). Court held that a 14.1% average disparity (over a 12-year period) between
numbers of female students who actively participated in athletics and numbers, of females enrolled
was not substantially proportionate.  Court also held that three-year disparities of 7.5%, 12.5%
and 12.7% demonstrated that athletic opportunities were not substantially proportionate, and that
a one-year disparity of 10.6% was not substantially proportionate".  (Sample and pool sizes are not
available.)   •                                                            .

Cook v. Co/gate University. 802 F. Supp. 737 (N.D.N.Y. 1992), vacated on other grounds, 992
F.2d 17 (2d Cir. 1992).  Court held that University which spent fifty times the financial support on
the men's varsity hockey team that it spent on.the women's club hockey team and afforded male
athletes other amenities not afforded to female athletes, did not provide equal athletic
opportunities under Title DC.  Total annual expenditure on'male hockey players was $238,561
and total annual expenditure on female hockey players was $4600. Total enrollment was 269(
1450 or 52% male and 1240 or 47% female.

Sharif Bv Salahuddin v. New York State Education Department. 709 F. Supp. 345 (S.D.N.Y.
1989). Court found a disparate impact Title DC violation where using SAT scores as sole criteria
in awarding scholarships yielded an actual number of female receiving scholarships which differed
from the expected number by 15.8 S/Ds for Empire State scholarship and 31.7 S/Ds for Regents
scholarship.  Court recognized that the level of statistical significance for a  disparity was .05.
probability (approximately 2 S/Ds).  Twenty-five thousand Regent scholarships were awarded in
the year studied, and 1000 Empire State Scholarships were awarded. While males we're 47% of
the scholarship competitors, males received 57% of the Empire State Scholarships and 72% of. the
Regents Scholarships.  (Total number of competitors not given.)

Heffer v. Temple University. 678 F. Supp. 517, 530 (E.D. Pa. 1987). Court held that a genuine
issue of fact existed as to whether university that spent $2100 more per male athlete than per .
female athlete and had a student body which was 50% female while only 1/3 of its athletes were
female violated Title DC by not providing substantially proportionate athletic opportunities.
(Sample and pool sizes are unavailable.)

              Other Analogous Areas of Federal Civil Rights Law

Bean v. Southwestern Waste Management Cory.. 482 F. Supp. 673 (S.D. Tex. 1979). The Texas
Department of Health (TDH) approved a permit for Southwestern Waste Management Corp. to
 operate a landfill in Houston and neighboring Harris County.  The target area, an area roughly
 conforming to the local school district and City Council district, was 70% minority.  Plaintiffs
 alleged TDK's decision was motivated by racial discrimination in violation of 42 U.S.C. § 1983
 and sought a preliminary injunction. In order to prevail, the court noted that plaintiffs had to
 show that TDK's decision "is attributable to an intent to discriminate on the basis of race."  Id  at
 677. That can be proven by statistical data or supplemental proof. Id The court concluded that
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 plaintiffs had not provided sufficient evidence of discriminatory intent.
       First, plaintiffs tried to prove that Southwest's permit was part of a pattern or practice of
 discrimination by TDK. Supporting data, however, showed that 59% of the sites operating in
 Houston with TDK permits were located in Census tracts with 25% or less minority population.
 Moreover, in the target area, the only other TDH facility was located in a census tract with less
 than 10% minorities at the time it opened.  IdL at 677-78.
       Second, plaintiffs sought to show that TDK's approval constituted discrimination in the
 context of exJSting landfills and the history of Southwest's application. Plaintiffs first noted that
 both of Houston's type I municipal landfills were in the target area. The court, however, felt that
 tn5 ]ocati°n of two facilities was not statistically significant and that, in any case, the other facility
 was in a census tract with only 18% minorities.  Plaintiffs then indicated that the target area
 contained 15% of Houston's solid waste sites, but comprised only 7% of its population.  The
 court pointed out that half of those solid waste sites were in census tracts with more than 70%
 Anglo population. • Finally, plaintiffs showed that 68% of Houston's solid waste sites were located
 in eastern Houston, which is where 62% of the minority population resides. The court looked at
 the local surroundings of each facility and found that 42% were in minority tracts (i.e., more than
 3^% minorities) and 58% were in Anglo tracts (i.e., more than 61% Anglos). Id, at 678-80.  In
 the end, the court concluded that the issuance of Southwest's permit was "both unfortunate and
 insensitive," but that plaintiffs had not established a substantial likelihood of proving intentional
 racial discrimination. Id at 680.

       B. What constitutes relevant "impact"; must it be kind of impact that is the
       primary focus  of the permitting agency or can it be any impact that would be
       Proxim?telv caused by the facility's operation (i.e., can it extend to social and
       economic concerns that result from the permitting facility, but are not the
       autn9nzed basis of the permitting authority's decision whether to grant a permit for
       the activity)?

              Title VI
  ,,,          '•.',;                                                , , ,i  1 '        ' ' '   '
Allen v. Wriqht, 468 U.S. 737 (1984).  Plaintiff alleged that the IRS's failure to adopt sufficient
standards and guidelines to enforce a tax code provision that denied tax-exempt status to racially
discriminatory private schools violated Title VI.. The Court stated that a diminished ability of
minority students to receive an education in a racially integrated school because of the tax
exemptions granted to schools that discriminate  is a legally'cognizable injury while finding that the
injury in this case was not "fairly traceable"  to the challenged government's conduct. Moreover,
the Court commented that stigma caused by racial discrimination "is one of the most serious
consequences of discriminatory government action" and is also a legally cognizable injury.

Rozar v. Mullis, 85 F.3d 556 (llth Cir. 1996).  The County Board of Laurens County, Georgia
voted to construct a new landfill in a "mixed racial neighborhood" by a vote of 3-2, in which the
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only black member of the Board voted against the site. A local community association sued the
county and state alleging the facility would have a discriminatory impact under Title VI by
harming the black residents' property values, health, and welfare. -The court upheld the district
court's summary judgment for defendants and concluded that plaintiffs claim against the county
was time-barred, id at 562-63, and that plaintiffs failed to produce any evidence of intentional
discriminatory conduct by the state.  Id. at 564-65.

Grimes ex rel. Grimes v. Cavazos. 786 F. Supp, 1184 (S.D.N.Y. 1992). Plaintiffs, students of the
New York City school system, alleged that the City curriculum favored European culture, thereby
implying that African-Americans are inferior, which lead to a variety of social problems such as
high crime and dropout rates among African-American youth.  Plaintiffs claimed the curriculum
violated Title VI.  The court noted that an action that "singles out and stigmatizes plaintiffs on
account of their race" is sufficient to constitute injury for standing. Id. at 1186.  The court,
however, dismissed the claim because plaintiffs failed to assert intentional discrimination.as
required under the statute,       :.                                                       .
       Later, in Grimes ex rel. Grimes v. SoboL 832 F. Supp. 704 (S.D.N.Y. 1993), aff'd.
Grimes ex rel. Grimes v. SoboL 37 F.3d  857 (2d Cir. 1994), plaintiffs amended their earlier
complaint to allege that defendant violated DOEd's Title VI regulations.  A violation of the
regulations occurs when the "criteria or methods of administration" have the effect of
discriminating on the basis of race. The court held that the regulations do not encompass
curricular content, based on DOEd's conclusion that its own Title VI and DC regulations did not
apply to curriculums.   '

 Villanueva v. Carere. 85 F.3d 481, 487 (10th Cir. 1996). Court rejected plaintiffs' claim that the
closing of two schools and the transferring of the students to various other  schools resulted in a
disparate impact on Hispanic students. The alleged impact was the deprivation of the high quality
education formerly provided by the closed schools and the subjection of the relocated students to
 overcrowded classrooms and poorer quality education of the transferee schools.  The court
 affirmed the district court's finding,  as not clearly erroneous, that there was no adverse effect on
 the transferred students since (1) the transferee schools had facilities comparable to the closed
 schools, (2) there was no evidence that the transferee schools would be overcrowded, (3) the
 transferred students who had participated in a special educational program  while at the closed
 could continue to participate at the tranferee school, and (4) that the closed schools and the
 transferee schools had similarly high percentages of at-risk and minority students.

 Gomez v. Illinois State Bd ofEduc.. 811 F.2d 1030 (7th Cir. 1987).  Court reversed district
 court grant of 12(b)(6). motion on the grounds that, inter alia, a private plaintiff had stated a
 viable disparate impact under the Title VI regulations.  The impact alleged  was the denial of
 transitional bilingual educational services caused by the Board of Education's failure to provide
 proper guidelines for identifying students with limited English proficiency.
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  ,:      " Iih        • •             •          '     •              •"'         i •
 Qoshen Road Envtl. Action v. U.S. Pep't of Aerie.. 891 F. Supp. 1126 (E.D.N.C. 1995).  The
 city of Pollocksyille constructed a water treatment facility with loans and grants from the Farmers
 Housing Administration by condemning land belonging mainly to low to moderate income
 African-Americans. Plaintiffs, who reside adjacent to Pollocksville, alleged that the site was
 selected for discriminatory reasons. The plaintiffs contend that proximity of the facility to the
 plaintiffs' homes (less than 500 feet) posed "environmental concerns of possible leaks and other
 d^ages." Jd^ at 1128.  The court never reached the merits of this case, but instead, asked for
 additional briefs on a variety of issues.  The case was ultimately affirmed without an opinion.
'Goshen Road Envtl. Action Team v.  U.S. Dep't of Aerie.. 103 F.3d 117 (4th Cir. 1996).
                               '..      . •        •       ',     ,..    ,  ,  I:
              Title VII (Terms and Conditions of Employment)

                     Disparate Impact Cases

 Garcia v. Spun Steak Co.. 998 F.2d 1480, 1484 (9th Cir. 1993.), reh'gen bane denied, 13 F.3d
 296 (1994), cert, denied, 512 U.S. 1228 (1994). Ninth Circuit held that a policy must'disparately
 impact members of a protected group with respect to either (1) their opportunities for hiring and
 promotion or (2) a term, condition, or privilege of employment in order to violate Title Vn~ a
 bare assertion that the policy has harmed members of a protected group is not sufficient even if it
 disproportionately harms members of the protected group. The plaintiff must prove (a) that the
 policy has adverse effects, (b) that the impact of the policy is oh a term, condition or privilege of
 employment, (c) that the adverse effects are significant, and (d) that the employee population in
 general is not affected by the policy.
       In this case, the court held that being able to converse with co-workers at work was a
 privilege of employment and that a English-only rule could have an adverse impact prohibited by
 Title VTI for employees who cannot speak English, but not on bilingual employees. The court
 also recognized that work environment is a condition of employment, and held that where a policy
 disparately causes members of the protected group to feel "inferior, isolated, and intimidated"
 based on their protected characteristic to such.a degree that the work environment becomes
 infused with discrimination, the policy adversely impacts a condition of employment and is
ac^onable under Tit16 VH.. However, in this case, the plaintiffs had not shown that the English-
 only rule caused feelings of severe inferiority, isolation, or intimidation among members of the
protected group.

Sherr v. Woodland School Comm 'n Council Dist. -No. 50. 867 F.2d 974, 983 (7th Cir. 1988).
Court held plaintiff could make out zprima facie case of disparate impact based on the maternity
leave Poli°y °CtIie employer since leave is a term, condition, or privilege of employment.

 Wambheim v. J.C.Permev. Inc.   705 F.2d 1492, 1494, (9th Cir. 1983), cert denied, 467 U.S.
 1255 (1984). Court held that employer's policy of providing medical care coverage to the
spouses of employees only if the employee was a head of household (the employee earns more
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than 50% of the combined family income) disparately affected female employees (far fewer female
employees qualified as a head of household than did male employees) and was actionable under
Title vn:                    .

                    Disparate Treatment Cases

                           What is an Actionable Adverse Effect
[A showing of an adverse effect caused by intentional discrimination is one element of a disparate
treatment case.  The definition of "adverse effect" (as described in the following disparate
treatment cases) is useful in disparate impact cases because it is this same adverse effect which
may be addressed by the disparate impact theory if caused by a facially neutral oolicv, and if
disparately borne by a protected group.]

Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1985).  Court held that in order for sexual
harassment to be actionable,, it must be sufficiently severe or pervasive to alter the conditions of
the victim's employment and create an abusive working environment.

Lederberser v. Stansler. 122 F.3d 1142 (8th Cir. 1997). Court held that in order to constitute an
actionable adverse employment action, the action must have a material (as opposed to a.
tangential) adverse impact on a term, condition, or privilege of employment. Here, employer's
action of reassigning employee's staff, which allegedly caused employee a loss of status and
prestige, did not effect a material change in the terms or conditions of her employment.

Rabinovitz v. Pena. 89 F.3d 482, 488 (7th Cir. 1996).  The court held that adverse employment
action must materially affect terms or conditions of employment in order to be actionable. The
action must be more disruptive than causing inconvenience or alteration of job responsibilities.
The court gives the following examples of actionable adverse employment actions: termination,
demotion accompanied by decrease in pay, given less distinguished title, material loss of benefits,
or significantly diminished job responsibilities.  Here, decrease in job performance rating from
"exceptional" to "fully successful" where worst consequence thereof was to foreclose employee
from the opportunity to receive a discretionary $600 bonus was not actionable adverse
 employment  action. Court also found that not permitting plaintiff to start work early and sending
 plaintiff away when the EEOC investigator visited the employer were not actionable adverse
 employment  actions.

 Jefferies v. State of Kansas. 1998 U.S. App. Lexis 12952, 77 FEP Cases 28. Court holds that
 1 Oth Circuit  does not have the "materiality" requirement, and instead takes a case-by-case
 approach to  determining whether a given employment action is adverse.

 Savers v. Salt Lake County. 1 F.3d 1122, 1128 (10th Cir. 1993).  Court found that  reassignment
 of plaintiff against her wishes was an adverse employment action.  Court did not employ a

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 "materiality" requirement.
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Berry v. Stevenson Chevrolet  74 F.3d 980, 986-87 (10th Cir. 1996). Court held that employer's
reporting of plaintiff as suspected of a crime causing employee humiliation was an adverse
employment action actionable under Title VII's retaliation provision.

Grease? v- State °tMissouri> 145 F-3d 979 (8th Cir. 1998). Court found that threatening and
sarcastic comments made by director of corrections center to the plaintiff was not actionable
adverse employment action since the conduct did not have a material impact on a term, condition,
pr privilege of employment.

Harhtonv. McDonald Douglas Corp.. 37 F.3d ,379, 382 (8th Cir. 1994). The court held that
reassignment to a different and more stressful position did not constitute actionable adverse
employment, action.                                                ,
            . ,„                        , _                 .,         . ,,  ,|         ,
            "',	  ,',',             *        " (-	 ,	"  ' ".	"  •	I'   	  •	';  '   '""' 	
Seelv v- Runy°."' ?66 F- SuPP- 1Q60, 1064 (D. Utah 1997). The court held that where plaintiff
could not show that the alleged" actions of her employer, which made her feel threatened,
embarrassed, and humiliated, effected a material change in the terms or conditions of her
employment, she could not make out a Title VII case.  Actions that have a tangential effect on
employment do not rise to the level of ultimate employment actions that are actionable under Title
vn.
  ' •	-    •      	-        •     .              .          :.  : |               •••    •
Flaherty v. Gas Research Inst. T 31 F.3d 451, 457 (7th  Cif. 1994). Court held that employer's
action of changing employee's title thereby causing embarrassment to the employee was not
actionable adverse employment action since pay and benefits remained the same.

Rogers v. EEOC. 454 F 2d 234, 238 (5th  Cir. 1971), cert. denied406 U.S. 95 (1972).  Fifth
c%l¥t.H?l4 t%t Tllle VTTs protections extend beyond the economic aspects of employment to
the full range of the expansively defined "terms, conditions or privileges of employment" including
work environment.  The court held that employer's practice of providing discriminatory service to
Hispanic customers which, in turn, created a hostile and offensive work environment for Hispanic
employees was actionable under Title VTI.
                         •                                           I

                    Impact Must Be Caused by a Specific Employment Policy/Practice
            ..,!.,          '                  ,              n      '.' 1
^T>auldinv v- Universitv °f Washington^ 740 F.2d 686 (9th Cir. 1984), cert, denied,  469 U.S.
1036 (1984), overruled on other grounds  as noted in Beard v. Whitlev County REMC. 840 F.2d
40J (7th Cir. 1988). Court notes, in a Title VH case, that the disparate impact model "was
developed as a form of pretext analysis to  handle specific employment practices not obviously job
related...." The court explains that the disparate impact model was meant to be applied where a
clearly delineated employment policy has been adopted by an employer that has the discretion  not
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to adopt the policy or to adopt alternatives to the policy. The court holds that the disparate
impact model is not suited for a "wide ranging attack on the cumulative effects of a company's
employment practices" because where the plaintiff is not challenging a discreet policy instituted
via an exercise of independent business judgment,  the disparate impact analysis is too vague to be
applied and there is a substantial risk that the employer will be held liable for disparities which it
has not caused. For example, in the instant case, the plaintiff challenged the employer's use of
competitive market prices to set wages.  The court found that this was not a discrete policy
instituted by the employer exercising independent business judgment, and thus the employer
should not be liable for any disparity caused.
       This case has been cited by the State of Michigan's response to the Select Steel complaint
as support for its claim that the disparate impact model is also not suited for evaluating permitting
decisions in Title VI litigation because (1) a decision to grant a permit to an applicant who has
met EPA health and welfare standards does not, itself, cause any disparity and (2) since there are
so many legitimate non-discriminatory reasons for the permitting decision,  the mere existence of a
substantial disparate impact does not justify an inference that the impact is  borne by the residents
because of their minority status.

              Title IX

Trent v. Perrit. 391 F. Supp: 171 (D.C. Miss. 1975). Court held that a high school grooming
code, which prohibited only male students from wearing hair below ear, was not sex
discrimination even where male students who violate this policy are not allowed to attend school.

Hall v. Lee College. Inc.. 932 F. Supp. 1027  (E.D. Term. 1996).  Court held that private college's
policy of suspending students (male or female) who engage in premarital sex did not violate Title
IX absent proof that females were treated differently under the policy than were males. [This
holding suggests that a school policy which does have a disparate impact on one gender with
respect to discipline concerning the private affairs of its students may violate Title DC.] Court also
recognizes that 34 C.F.R. Sec 106 prohibits discrimination on basis of sex  with respect to rules of
behavior.

              Other Analogous Areas of Federal Civil Rights Law

Alexander v.  Choate. 469 U.S. 287 (1985). Plaintiffs claimed that (1) a state's reduction of
Medicare coverage for hospital visits from 20 to-14 days per year and (2) a state's imposition of
any annual limit on the number of Medicaid-covered hospital days would disproportionately deny
health care adequate to meet the increased health care needs of disabled persons. The Court held
that although Section 504 of the Rehabilitation Act and/or its implementing regulations prohibit
some disparate impact discrimination (which  the Court did not define), the alleged disparate
impact alleged in this case was not actionable because the purpose of the Medicaid program is not
to provide the precise level of health care adequate to meet the particular needs of its
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 beneficiaries. Instead, the Medicaid program "is a particular package of health care
 services..,.[that] has the general aim of assuring that individuals will receive necessary medical
 care, but the benefit provided remains the individual services offered- not 'adequate health
 care."'
        c°urt ajsp, recpgnized that Title VI delegated to federal agencies "in the first instance the
 complex determination of what sorts of disparate impacts upon minorities constituted sufficiently
 significant social problems, and were readily enough remediable, to warrant altering the practices
 of the federal grantees that had produced those impacts."

 &I.S.E. v. Kay, 768 F. Supp. 1144 (E.D. Va. 1991). King and Queen County sought to construct
 a new landfill in a predominantly black community.  Plaintiffs, local residents who opposed the
 landfill, clajmed that it would deprive them of equal protection of the laws under the 14th
 Amendment by (1) reducing quality of life, by increasing noise, dust, and odor, (2) decreasing
 property values, (3) interfering with activities at a local church, (4) requiring major road
 improvements, and (5) blighting the community. The court reviewed the case under Village of
 Arlington Heights v. Metropolitan Housing Development Corp.  429 U.S. 252 (1977), which
 requires a finding of intentional racial discrimination, and found that the Board acted in a
 responsible  and conscientious manner with no intentional discriminatory motivation.

 Aiellov. Brownine-Ferris. Inc. 244 ELR 20771 (N.D. Ca. 1993).  Court addressed plaintiffs'
 challenge under 42 U.S.C. Sections 1983 and 1985, to a decision of the defendant county to
 locate and approve a landfill near a high proportion of the county's minority residents.  Plaintiffs'
, *f eSed that the decision caused dust, toxic substances, odors, and excess to afflict their residences
 **$• h88 redu£^d their property values. Court dismissed the plaintiffs claims for lack of ripeness
 arid for being untimely, but did not find that a constitutional claim of discrimination could not be
 based on such effects.
   • •      ;     ",;:;;':-  '      :  ,             •• .     ••   .   >       .'     :i I     •    •  '   :    '•=
 iGramore v. Illinois Sports Facilities Authority. 722 F. Supp. 443 (N.D. 111. 1989).  The Illinois
 SPorts JfcfHffies Authority ("the Authority") sought to build a new stadium for the Chicago White
 S°* at a site in wnl9n the "residents were almost exclusively black." Id at 446. Plaintiffs,
 residents of the areas adjacent to the site, alleged violations of the Equal Protection clause and
 Title VI. They claimed that they would suffer a variety of injuries from construction of the
 stadium including: (1) increased noise and light; (2) increased rent and tax; (3) reduced
 employment base; and (4) isolation and segregation from neighboring areas. Considering those
 e%cts'tlie cou,rt held that plaintiffs adequately alleged a racially disparate impact under the Equal
 P^ection cIaHPe Ifd 42 U-S.C. § 1983,  thereby denying part  of defendant's motion to dismiss.
tt at 449- AS |°r, fitle VI, however, the court concluded that plaintiffs failed to allege that
 defendant was a recipient of federal funds, thereby granting part of defendant's motion to dismiss.
 Id. at 451.
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             NEPA
NOTE: The National Environmental Policy Act (NEPA) may be of limited usefulness in
interpreting Title VI because NEPA is essentially a procedural, not substantive, statute.

Robertson v. Methaw Valley Citizens Council.. 490 U:S. 332 (19S9). Supreme Court notes that
"NEPA itself does not mandate particular results, but simply prescribes the necessary process."

                    Statute

The policy established by NEPA is to use all practicable means and measures to, among other
things, "fulfill the social, economic, and-other requirements of present and future generations of
Americans." NEPA § 101(a).  The general ends of NEPA include ascertaining for all Americans:

       [S]afe, healthful, productive, and esthetically and culturally pleasing surroundings; ... the
       widest range of beneficial uses of the environment without degradation, risk to health or
       safety, or other undesirable and unintended consequences;... an environment which
       supports diversity and variety of individual choice;.  . . [and] a balance between population
       and resource use which will permit high standards of living and a wide sharing of life's
       amenities.

       NEPA § 101(b).

                    Regulations

The Council on Environmental Quality's (CEQ) NEPA regulations note that ."environmental
effects" or "impacts" that must be considered under NEPA include historic, cultural, economic,
and social effects.  40 C.F.R. § 1508.8.

Further, 40 C.F.R. § 1508.14 states that effects on the "[h]uman environment" include social and
economic impacts when interrelated to natural and physical  environmental effects and that social
or economic impacts do not by themselves require preparation of an environmental impact
statement.
                    Case law

Metropolitan v. PANE. 460 U:S. 766, 773 (1982). Congress intended NEPA to focus on impacts
to the physical environment and natural resources.

Como-Falcon Community v. Dept of Labor. 609 F.2d 342, 345 (8th Cir. 1979). Numerous
courts note that socioeconomic effects do not need to be considered if there is no primary impact
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on the physical or natural environment (citing cases).
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Nonetheless, several courts have noted that under NEPA 102(2)(C), socioeconomic effects must
be considered if there is some primary physical impact on the environment. Hanlev v. Mitchell.
460 F.2d 640 (2d Or.  1972); NAGE v.Rumsfield. 418 F. Supp. 1302 (E.D. Pa. 1976); McDowell
v, Schtesmzer. 404 F.  Supp. 221 (W.D. Mo.1975).
MITIGATION
                                                                   , . ,|
       A. Is the only relevant mitigation that which directly reduces the disparate impact
 ;  '    itself?'   .........         ' ' '        ...... '               .;
Bryan v. Koch. 627 F.2d 612 (2d Cir. 1980).  The court addressed a Title VI challenge to a
closing of a city hospital located in Harlem. The- court first noted that Title VI does not explicitly
require a federal fund .recipient to consider alternatives to a proposed placement or closure of a
public facility. The Court explained that unlike in the Title Vn context where mere selection
procedures are at issue, and the comparable alternatives inquiry is focused on other selection
devices, in the Title VI context the less discriminatory alternative inquiry "could frequently
become open-ended." In the instant case, the court found that Title VI did not require the
defendant to consider alternatives to address New York City's financial crisis beyond "an
assessment of all the municipal hospitals in order to select one or more for closing." The court
he^d. that to require a more extensive consideration of alternatives would result in the court' s
"assessing the wisdom of competing political and economic alternatives." This result was to be
 8" 'n! r m'  ,i ~ • ,, if IP. : ..... : ",i,i, • , •     , '  .„„,*,  ........ . «— ' 1    „  ,    •  .....   „, ,     ..........................
avoided since, it wpuld mean that "such policy choices would be made without broad public
participation and without sufficient  assurance that the alternative selected will ultimately provide
more  of a benefit to the minority population."
       However, the court also  noted that a Title VI defendant might be required to consider
alternatives which have "obvious advantages" to the option of closing a facility which has a
significant disproportionate racial impact. The alternatives proposed by the plaintiffs (hospital
mergers, increasing Medicare reimbursement to  hospital; increase health care provided by
hospital) were best suited for the political process, not the courts.
       Finally, the court mentioned in a footnote, but did not consider in its decision,  that the
defendant had agreed to mitigate the racial impact of the hospital closing by setting aside money
for a 5-year project to provide health care to Harlem residents, including allowing a community
group to lease the closed hospital for $1 per year in order to operate a drug and  alcohol treatment
center.
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NAACPv. Medical Center. Inc.. 657 F.2d 1322 (3d Cir. 1981).  Plaintiffs challenged defendant's
decision to relocate medical center from inner city to outlying suburban areas as, inter alia,
having a disparate impact on racial minorities.  The district court ordered HEW to perform a
departmental review and HEW found a disparate impact.  The defendant then entered into an
agreement with HEW to mitigate this impact by (1) providing free transportation to the new
location from'the inner city, (2) appointing an ombudsman to process discrimination complaints,
(3) creating in-patient service plans to prevent racial identifiability and (4) operating the remaining
inner city medical center and the new medical center on a unitary basis. The court noted that
other cases (including Bryan) did not require a Title VI defendant to search for less discriminatory
alternative before attempting to establish its business necessity defense, and indicated its
agreement with this principle. However, the court noted that the district court in the instant case
did require the defendant to go forward with evidence showing that it has chosen the least.
discriminatory alternative.  The court found that the district court's holding that the defendant met
this burden by considering 50 alternative plans, each of which it rejected for bonafide reasons
was not clearly erroneous. The Third Circuit also noted that the district court, itself, also
examined five alternatives, none of which would serve the defendant's needs.  The Third Circuit
also relied upon its assumption that the defendant would abide by its agreement with HEW in
affirming the district court's holding.
       The dissent criticized the majority's assumption that the defendant would comply with the
HEW agreement because it "short-circuit[ed] the process of reasonable accommodations which
Title VI is designed to foster" by obviating the need to rebut the plaintiffs' alleged major impacts.
The dissent argues that had the majority not short-circuited the process, the defendant might have
tried to meet the plaintiffs' prima facie case by mitigating the alleged disparate impacts by, for
example, replacing the general promise to provide free transportation with a specific allocations of
funds for expanded service, by adjusting services at the new medical center, or by creating a
contingency plan which satisfied plaintiffs' concerns.

              title VH

                     Less Discriminatory Alternative ("LDA")/AIternative Employment
                     Practice ("AEP")

       The Civil Rights Act of 1991 ("1991 CRA") provides that an unlawful employment
practice based on disparate, impact is established only when (1) the plaintiff establishes a disparate
impact on the basis of race color, etc., and the defendant fails to demonstrate that the challenged
practice is job-related and "consistent with business necessity," or (2) the plaintiff demonstrates
the existence of an alternative employment practice and the defendant refuses to adopt such
alternative employment practice. 42 U.S.C. Section 2000e-2(k)(l)(A),  The.1991 CRA
specifically provides that the concept of an "alternative employment practice" should be defined in
accordance with case law preceding Wards Cave. Generally, before Wards Cove, an alternative
employment practice was defined as a practice that had a less undesirable racial effect than the
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challenged practice and serves the legitimate interest established by the defendant. (See
Albemarle. below.)
                                 ,                     ,              i
Albemarle Paper Co. v. Moody. 422 U.S. 405, 425 (1975). Court defined alternative
employment practices (AEP) as: "...tests or selection devices, without a similarly undesirable
facial effect, [and which would] also serve the employer's legitimate interest in 'efficient and
trustworthy workmanship.'" The Court also noted that a showing of an AEP by. the plaintiff
"would be evidence that the employer was using its tests merely as a 'pretext' for discrimination."
(CitingMcDonnell Douglas Corp. v. Green. 411 U.S. 792, 804-805 (1973) (a disparate treatment
else)). The Court did not reach the issue of whether an AEP existed in the case.   .
Bailor v. Alcana County Road Comm 'n. 1997 U.S. Dist LEXIS (E.D.N.Y. 1997). Court defined
alt alternative employment practice (the existence of which a plaintiff must prove to overcome the
employer's proof of business necessity) as one which has a lesser disparate impact that would
serve the employer's legitimate interests. The court noted the following factors for determining
whether an AEP exists: (1) subsequent practices adopted by the employer, (2) policies of
comparable businesses, (3) marginal cost of the proposed AEP and (4) the safety implications for
public safety of the proposed AEP. In this case the court found that the plaintiff failed to identify
i specific discriminatory employment practice and failed to identify an AEP.

Levin v. Delta Air Lines. Inc.. 730 F.2d 994, 1000 (5th Cir. 1984).: Court held that an AEP is a
practice which (1) serves the employer's legitimate purpose, and (2) has a discriminatory effect on
fewer of the protected group or has a less severe effect on the protected group (even if the same
number of protected group members are effected). Here, airline's  policy of removing pregnant
flight attendants from duty was job-related and was a business necessity since policy promoted
safety of airline passengers.  Furthermore airline was not required to implement proposed
alternative of transferring pregnant flight attendants to ground crew since training for flight
ajtendants was significantly different than training for ground crew.

Moslevv. ClarksvilleMem. Hasp.. 574 F. Supp. 224 (M.D. Tenn. 1983).  Court noted that an
AEP must be "without an adverse effect" and must serve the employer's legitimate interest.
 :   •       .-'•  -;i     .       •       	'       '    "•';!.
Pezues v. Mississippi State Employment Serv.. 699 F.2d 760,  773  (5th Cir. 1983), reh'g. denied,
7j>5 F4d 450 (1983), cert, denied, 464 U.S. 991 (1983). Court held that an AEP is a practice
tfat is less discriminatory than the challenged practice.
iuniffav. Ktebitr? County Hasp.. 692 F.2d 986 (5th Cir. 1982). Court found hospital's practice
of firing pregnant X-ray technicians violated Title VTI even though hospital showed a business
necessity for the policy.  An alternative policy of laying the plaintiff off, instead of firing her, was
available and would have a less severe impact.
 .. •'-  '       ; i1 •  '''SI      • .                 .                   .        !
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Neloms v. Southwestern Elec. Power Co.. 440 f. Supp, 1353, 1370 (W.D. La. 1977).  Court held
that an AEP is a practice without the undesirable racial impact of the challenged practice that
would also serve the employer's legitimate interest in efficient and trusty workmanship. The court
stated: "an employer may not even use a job-related selection device if there is another device that
will accomplish the same result without the undesirable racial imp'act."

              5th Amendment Due Process Clause/ 14th Amendment Equal Protection
              Clause

Adarand Constructors, Inc v. Pena. 515 U.S. 200 (1995).  Court reviewed a Federal government
affirmative action program for government contracting. Court holds that all governmental race-
based classifications must be subjected to a strict scrutiny analysis under the 5th Amendment's
Due Process Clause (Federal government action ) or under the 14th Amendment's Equal
Protection Clause (state and local government action). Strict scrutiny requires that the racial
classification at issue both serves a compelling governmental interest and is narrowly tailored to
further that interest. Remedying the effects of past discrimination against minority groups may be
a governmental interest compelling enough to justify a racial classification, as long as the
classification is narrowly tailored to fulfill this need.  Court noted that factors to consider  in
determining whether the classification is "narrowly tailored" include: (1) whether the government
considered the use of race neutral means of satisfying the compelling interest and (2) whether the
racial classification is limited in scope so that it "will not last longer than the discriminatory effects
it is designed to eliminate."

Richmond v. J.A.  Croson Co.. 488 U.S. 469 (1989).  Court held that in order for a government to
establish that a racial classification furthers a need or remedies past discrimination, it must show a
"strong basis in evidence for its conclusion that remedial action was necessary." The "strong
basis in evidence" required is generally a showing approaching a prima facie case of discrimination
not of general  societal discrimination, but of discrimination caused by the parties implementing the
racial classification.  Court repeatedly noted that in the instant case, the weak predicate of
discrimination could not justify the rigid racial quota at issue, suggesting that the less compelling
the interest, the more narrow tailoring is required and, conversely, the more compelling the
interest, the less narrow tailoring is required.

United States v. Paradise. 480 U.S. 149, 171  (1987). Court held that the following factors were
relevant to a "narrowly tailored" analysis in the employment context: (1) whether the government
considered race neutral criteria before adopting the racial classification, (2) whether race is one
factor to be used as a.criterion or whether race is the sole or dominant factor, (3) whether there is
a reasonable and non-arbitrary relationship of the racial classification to the size of the disparity
which it has been adopted to reduce, (4) the scope of the racial classification program, (5) the
duration of the racial classification program, and (6) the impact of the  racial classification program
on minorities.
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       •B,. What kind of guidance exists from other areas of law (SEPs?) for how tightly (or
       broadly) the nexus must be?

       Supplemental Environmental Projects (SEPs)
            "i*lH   '.•ijiliii   '       '	   "  : , . ' ' '  '  i          ,„       ',!•»'    i I
              Environmental Statutes Penalty Provisions

Topically, administrative civil penalty enforcement provisions in EPA statutes direct that the
Administratoj: rnay impose a civil penalty for violation of the statute, up to a specified dollar
aiiiount either per violation or per day of violation (e.g., Emergency Planning and Community
Sight to Know Act (EPCRA) §325(b)(l), 42 U.S.C. §11045(b)(l)).  Judicial civil penalty
provisions are similar (e.g., Clean Water Act (CWA) §309(d), 33 U.S.C. §1319(d)).
  H,,:11;!,; i	"", ii'"ir  „!: ill       ,  ' .  '    '     * '    . ' '    ',!'•'      • in,,,'",i '  	  i|, r;  •      i
Accordingly, JEPA has discretion to assess a penalty for an amount less than the maximum amount
specified in the statutes.  Courts defer to agency determinations on penalties:

NL Indus.. Inc. v. Pep't of Trdnsp.. 901 F.2d  141 (D.C. Cir. 1990), administrative agency is
entitled to substantial deference in assessing civil penalty appropriate for violation of its
regulations.         •      .

Cox v. U.S. Dejy 't of Aerie.. 925 F.2d 1102 (llth Cir. 1991), cert, denied 112 S. Ct, 178 (1991).
Assessing penalties for violation of the Animal Welfare Act was an exercise of a discretionary
grant of power by USD A, and review by the court is limited.

Mendelson v. Macv. 356 F.2d 796, 799 n.4 (D.C. Cir. 1966).  Court suggests that penalty
assessments within the range authorized by statute are virtually unreviewable.

Many of EPA's statutes include penalty assessment provisions that set out criteria that EPA or the
court must consider in determining the appropriate penalty. EPCRA § 325(b)(l)(C) is typical of
those penalty provisions:

       In determining the amount of any penalty assessed pursuant to this subsection, the
       Administrator shall take into account the nature, circumstances, extent, and gravity of the
       violation qj violations a^id, with respect to the violator, ability to pay, any prior history of
       such yiplations, the degree of culpability, economic benefit or savings (if any) resulting
       from the violation, and such other matters as justice may require.

       42 U.S.C. §11045(b)(l) (Class-I administrative penalties).
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              Supplemental Environmental Projects (SEPs) Policy
In the settlement context, EPA generally follows these criteria in exercising its discretion to
establish an appropriate settlement penalty. To further EPA's goals to protect and enhance public
health and the environment, in certain instances environmentally beneficial projects, or
Supplemental Environmental Projects (SEPs), may be part of the settlement.  EPA's Final
Supplemental Environmental Projects Policy, effective as of May 1, 1998, sets forth the types of
projects that are permissible as SEPs, the penalty mitigation appropriate for a particular SEP, and
the terms and conditions under which they may become part of a settlement.

EPA considered two Comptroller General opinions (In the Matter of: Nuclear Regulatory
Commission's Authority to Mitigate Civil Penalties (NRG opinion) (B-238419), 70 Comp. Gen.
17(1990); In the Matter of: Commodity Futures Trading Commission B-210210 (Sept. 1983)
(CFTC opinion.) in developing the Final SEP Policy.  Both matters involved agencies proposing
to allow violators to donate money to educational institutions for research in lieu of civil penalties,
and in both instances, the Comptroller General thought that the agencies would be improperly
augmenting appropriations by'such actions.            .

In a July 7, 1992 letter (B-247155) (unpublished) responding to Congressman John D. Dingell,
the Comptroller General concluded that EPA did not have authority to settle mobile source air
pollution enforcement actions under §205 of the  Clean Air Act by allowing violators to fund
certain public awareness projects and that EPA's enforcement authority did not extend to these
remedies which were  unrelated to correction of the violation.

EPA's Final  SEP Policy has addressed the Comptroller General's concerns.  General public
educational or public  environmental  awareness projects, (e.g., sponsoring seminars public
seminars, conducting  tours of environmental controls at a facility, promoting recycling in a
community), are not acceptable SEPs. The Final SEP Policy requires that all projects advance at
least one of the objectives of the environmental statutes that are the basis of the enforcement
action and must have adequate nexus. "Nexus'^is defined in the Final SEP Policy as the
relationship between the violation and the proposed project, and exists only if:

       the project is designed to reduce the likelihood-that similar violations will occur in the
       future; or the  project reduces the adverse impact to public health or the environment to
       which the violation at issue contributes; or the project reduces the overall risk to public
       health or the environment potentially affected by the violation at issue.
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                                                                   ...  |
        C. What is the role of mitigation? Must states use mitigation before attempting to
        show "legitimate" justification for the disparity? Can it be used to justify a
        "legitimate" justification for the disparity?
              Title VI
                     Mitigation

Brvan v. Koch. 627 F.2d 612 (2d Cir. 1980). The court addressed a Title VI challenge to a
closing of a city hospital located in Harlem. The court first noted that Title VI does not explicitly
require a federal fund recipient to consider alternatives to a proposed placement or closure of a
plMc facility. The Court explained that unlike in the Title VH context where mere selection
procedures are at issue, and the comparable alternatives inquiry is focused on other selection
devices, in the Title VI context the less discriminatory alternative inquiry "could frequently
become open-ended." In the instant case, the court found that Title VI did not require the
defendant to consider alternatives to address New York City's financial crisis beyond "an
assessment of all the municipal hospitals in order to select one or more for closing." The  court
held that to require a more extensive consideration of alternatives would  result in the court's
"assessing the wisdom of competing political and economic alternatives." This result was to be
avoided since it would mean that "such policy choices would be made without broad public
participation and without sufficient assurance that the alternative selected will ultimately provide
more of a benefit to the minority population."
       However, the court also noted that a Title VI defendant might be required to consider
alternatives which have "obvious advantages" to the option of closing a facility which has a
significant disproportionate racial impact. The alternatives proposed by the plaintiffs (hospital
mergers, increasing Medicare reimbursement to hospital, increase health care provided by
hospital) were best suited for the political process, not the courts.
       Finally, the court mentioned in a footnote, but did not consider in its decision, that the
defendant had agreed to mitigate the racial impact of the hospital closing  by setting aside money
f°r a 5-year Pr°Jert to provide health care to Harlem residents, including  allowing a community
group to lease the closed hospital for $1  per year in order to operate a drug and alcohol treatment
center.  	         .            .          '     '         '     -...-.

NAACPv. Medical Center. Inc.. 657 F.2d  1322 (3d Cir. 1981).  Plaintiffs challenged defendant's
decision to relocate medical center from inner city to outlying suburban areas as, inter alia,
having a disparate impact on racial minorities.  The district court ordered HEW to perform a
departmental review and HEW found a disparate impact.  The defendant  then entered into an
agreement with HEW to mitigate this impact by (1) providing free transportation to the new
location from the inner city, (2) appointing an ombudsman to process discrimination complaints,
(3) creating in-patient service plans to prevent racial identifiability and (4) operating the remaining
inner, city medical center and the new medical center on a unitary basis. The court noted that
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other cases (including Bryan) did not require a Title VI defendant to search for less discriminatory
alternative  before attempting to establish its business necessity defense, and indicated its
agreement with this principle.  However, the court noted that the. district court in the instant case
did require the defendant to go forward with evidence showing that it has chosen the least
discriminatory alternative.  The court found that the district court's holding that the defendant met
this burden by considering 50 alternative plans, each of which it rejected for bonafide reasons
was not clearly erroneous. The Third Circuit also noted that the district court, itself, also
examined five alternatives, none of which would serve the defendant's needs.  The Third Circuit
also relied upon its assumption that the defendant would abide by its agreement with HEW in
affirming the district court's holding.
       The dissent criticized the majority's assumption that the defendant would comply with the
HEW agreement because it "short-circuitfed] the process of reasonable accommodations which
Title VI is designed to foster" by obviating the need to rebut the plaintiffs' alleged major impacts.
The dissent argues that had the majority not short-circuited the process, the defendant might have
tried to meet the plaintiffs' primafacie case by mitigating the alleged disparate impacts by, for
example, replacing the general promise to provide free transportation with a specific allocations of
funds for expanded service, by adjusting services at the new medical center, or by creating a
contingency plan which satisfied plaintiffs' concerns.

                     Less Discriminatory Alternatives

Elston v. Taladesa County Bd. ofEduc.. 997 F.2d 1394, 1407 (llth Cir. 1993), reh'gen bane
denied, 7 F.3d 242 (11th Cir.  1993).  Court held that defendant met its burden to show that
building a new school in a predominately white neighborhood instead of expanding an existing
school in a predominately black neighborhood was "necessary to meeting a goal that was
legitimate, important, and integral to the defendant's institutional mission" by demonstrating that
there was not enough land at the existing school site to accommodate the new school. The court
did not require that the defendant consider less discriminatory alternatives before deciding on the
location of the school, nor did the court require that the defendant mitigate the disparate impact
which the court assumed arguendo was caused by the siting decision.  Furthermore, the court"
found that the plaintiffs did not propose alternative sites for the school that would have had a less
discriminatory impact, or propose a solution to the lack of space at the existing school site.  The
court also found that since there was no evidence that discriminatory animus motivated the
school's decision, the plaintiffs could not show that the location decision was pretextual.

Youne v. Montgomery County. 922 F. Supp. 544 (M.D.  Ala. 1996).  Court held that the
defendant school board successfully established that the goal of preventing athletic recruiting was
a substantial legitimate justification for a policy which required students transferring schools to sit
out of interscholastic sports for one year after transfer.  The plaintiffs proposed use of the existing
grievance procedure of the state athletic association as an alternative to the policy which would
not have a disparate impact on black students. Court found that the defendant would not  have to
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l tne ProP?sed alternative since it Had been shown to be ineffective in preventing athletic
          P.*?*-  Furthermore, the court did not require the school board to have considered
          'n
                 .
 this alternative or any other alternative before establishing the existence of their substantial
 legitimate justification.

 Coalition of Concerned Citizens Against I-67Q v. Damian. 60S F. Supp. 110 (D.C. Ohio 1984).
 Plaintiffs claimed that a city's decision to locate a highway through predominately minority
 neighborhoods caused a disparate adverse impact on minorities. Citing Bryan and NAACPv.
         Center, the Court noted that there is some question whether Title VI requires a fund
 recipient to consider alternatives with less disparate impact before making the decision at issue.
 However, in the instant case, the court found that it was unnecessary to answer the question since
 (1) FHWA regulations required consideration of alternatives, (2) the city did, in fact consider a
 mass transit alternative, at the plaintiffs urging which was designed to minimized the disparate
 racial impact, and rejected this alternative, and (3) the plaintiffs failed to proposed any appropriate
 alternatives to be considered.
        Title
              Less Discriminatory Alternative ("LDA")/AIternative Employment Practice
              ("AEP")

        SEE ALSO CASES DIGESTED IN JUSTIFICATION SECTION

        There is disagreement among federal courts as to whether or not Title YE (as amended by
 the 1 99 1 CRA) requires the defendant to search for and/or use every existing AEP or LD A before
 attempting to show that the challenged practice is "job-related" and is "consistent with business
 necessity."  The 1991 CRA clearly places the burden of establishing the existence of an AEP/LDA
.on the plaintiff!

 Dothardv. Rawlinson. 433 U.S. 321 (1977). Alabama's minimum height and weight
 re4uirements for hire of correctional counselors was not shown to be significantly related to job
 performance so as to justify the requirements' disparate impact on women. The Court rejected
 ?mpl°yer's argument that the requirements were justified because they have a "relationship to
 strength, a sufficient but unspecified amount of which is essential to effective job performance  as a
 correctional counselor" noting that "the appellants produced no evidence correlating the height
 and weight requirements with the requisite amount of strength thought essential to good job
 performance." The Court then stated that "if the job-related quality that the appellants identify is •
 bona fide", the employer could have adopted a test to directly measure strength instead of relying
 on height and weight statistics. However, the Court indicates that the plaintiff has the burden of
 proof of showing the existence of other selection devices which would serve defendant's goals of
        , .    ..... i   *,.'      .   •  ,              •    .        ..... ,,,  •' ,i: ...... ;::   \ » .•( !• :   ,      °
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 "efficiency and trustworthy workmanship" without a "similarly undesirable racial effect."

 Albemarle Paper Co. v. Moody. 422 U.S. 405, 425 (1975). Court held that it is plaintiffhas the
 burden of proof of showing the existence of other selection devices which would serve
 defendant's goals of "efficiency and trustworthy workmanship" without a "similarly undesirable
 racial effect."

 Donnelly v. Rhode Island Bd. of Governors, 929 F. Supp. 583 (D.R.I. 1996). The court noted
 that if the defendant was required to prove that it had no alternative to the challenged practice in
 order to establish business necessity, then no AEP could possibly exist and the plaintiff would
 have nothing to prove.. Thus, section 2000e-2(k)(A)(ii) of the 1991 CRA, which places the
 burden of establishing the existence of an AEP on the plaintiff would be meaningless.

 Bradley v. Pizzaco of Nebraska. Inc.. 7 R'3d 795 (8th Gin 1993). Court held that under Prizes.
 in order for a defendant to show a substantial business justification for the challenged practice, it
 must show (a) the practice  has a "manifest relationship to the employment in question" and (b) a
 compelling need to maintain the practice and that there is no alternative to the challenged practice.

 Levin v. Delta Air Lines. 730 F.2d 994 (5th Cir. 1984). Court suggests that where a LDA is
 apparent  and easily utilized and yet a defendant does not adopt it, the defendant may have
 difficulty  establishing a business necessity defense. On the other hand, where an LDA is less
 apparent  and not as easy to utilize, the burden may be on the plaintiff to identify and prove the
 existence of an LDA.

 Wrishtv. Olin Corp.. 697 F.2d 1172 (4th Cir 1982). Court subjected employer's fetal protection
. policy to  a disparate impact analysis. (NOTE: Fetal protection policies are now usually analyzed
 under the disparate treatment standard.) Court held that the defendant could show a.prima facie
 business necessity defense with proof that (1) the risk of harm which the  policy attempts to lessen
 or eliminate must be sufficiently compelling to overcome the disparate effect which the practice
 causes, and (2) the policy effectively avoids the harm and is reasonably necessary to avoid the
 harm.  The Court noted that the defendant must prove a business necessity objectively:
 defendant's belief that the policy is necessary is not sufficient.  However, defendant is not required
 to show a general consensus among experts on the degree of risk of harm and necessity of the
 policy to  address the risk, but only "a considerable body of opinion" such that "an informed
 employer could not fail to act on the assumption that the opinion is an accurate one."
        The Court also overruled its decision in Robinson v. Lorillard, 444 F.2d 791 (4th Cir
 1971) insofar as it held that the defendant, in establishing its business necessity defense, must
 prove that no acceptable alternatives exist.  The Court noted that while the Supreme Court has
 never explicitly repudiated this aspect of the Lorillard decision, the Court's  decisions in Beazer,
 Albemarle. and Dothard "have so clearly indicated that proof of'acceptable alternatives' is the
 claimant's burden in 'rebuttal' that we must consider Lorillard's formulation to that extent no
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 longer authoritative."
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 Chrisnerv. Complete Auto Transit. Inc.. 645 F.2d 1251 (6th Cir. 1981). The district court
 rejected the defendant's business necessity defense for a two-year experience hiring requirement
 because although the defendant showed a compelling business necessity for the employment in
 question, the defendant had not shown the unavailability of alternative hiring practices which
 would have less of a disparate impact. The Sixth Circuit reversed on the grounds that the lower
 court improperly placed burden of proving the existence of an AEP on the defendant. The Sixth
 Circuit explained that the district court "unjustifiably collapsed the three-step [disparate impact]
 test employed in Griggs into a two-step examination in which the defendant was burdened with
 proving... that its hiring requirements would have the least disparate impact of all conceivable
 requirements which satisfactorily measure applicants for employment," making the third step
 superfluous.  The Sixth Circuit noted that although many court opinions interpret "business
 necessity" to require that the challenged practice is absolutely necessary or inherently essential,
 this interpretation has not been adopted by the Supreme Court. Instead, the Supreme Court's'
 articulation of the business necessity test in Griggs [manifestly related to employment and
 necessary to safe and efficient job performance] should be followed. "The Sixth Circuit expounds
 on^the Griggs standard stating: "For a practice to be necessary... it need not be the sine qua non
 of job performance; indispensability is not the touchstone. Rather, the practice must substantially
 promote the proficient operation of the business." The Sixth Circuit cites Board of Trustees v.
 Sweeney, 439 U.S. 27 (1978) in support of its holding explaining that in Sweeney, the Supreme
 Court found that Collapsing the three-step disparate treatment analysis into a two-step analysis by
 requiring the defendant to prove absence of pretext was improper.

 Clanton  v  Orleans Parish School Bd. 649 F.2d 1084, .1098 (5th Cir. 1981). Court held that the
 defendant's at*?m£tto establish a business necessity justification "fails as a matter of law" because
 of the existence of less discriminatory alternatives.  The court found decisive that the defendant
 school board admitted that achievement of its fiscal objective did not require it to use pregnancy
 as a basis for determining who to retain and that, less discriminatory alternatives such as (1) filling
 available positions on the basis of seniority or other objective factors, (2) laying off teachers by
 random selection, or (3) deferring the return of teachers on leave.

 Conterasv. City of Los Angeles. 656 F.2d 1267 (9th Cir. 1980), cert, denied, 455 U.S. 1021
 (1982). Court held that placing the burden of establishing the non-existence of an AEP/LDA on
 the employer clearly misallocates the AEP burden of proof.  Once a defendant shows that the
 challenged practice is job-related, the plaintiff must show that an LDA would satisfy the
 employer's legitimate interests.  The plaintiff in this case failed to establish that using oral
 interviews for hiring is an AEP/LDA to using written examinations because he did not show that
 oral interviews would satisfy the city's civil service hiring needs.  Evidence that oral interviews
were used in hiring in other city department was not relevant to show that oral interviews would
satisfy needs of the hew department at issue.
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Kirbvv. Colony Furn. Co... 613 F.2d 696 (8th Cir. 1980). Court held that to prove job-
relatedness and business necessity, the defendant must show that there is a compelling need for
the maintenance of the practice and that there is no alternative to the challenged practice.

Nelomsv. Southwestern Elec. Power Co.. 440 F. Supp.  1353, 1370 (W.D. La. 1977).. Court held
that in order for a defendant to show a business necessity and thus relieve itself from liability for a
practice which causes a disparate impact, the practice must be "essential to safety and efficiency"
and "[t]here must be no other alternative to achieve the same result as the test in question, and the
result desired from the test in question must be essential to the operation of the business."  The
court further stated: "an employer may not even use a job-related selection device if there is
another device that will accomplish the same result without the undesirable racial impact."

Parson v. Kaiser Aluminum & Chemical Corp.., 575 F.2d 1374, 1389  (5th Cir. 1978), reh'g
denied,  583 F.2d 132, cert, denied, 441 US. 968 (1978).  To establish business necessity,
defendant must show (1) that practice is essential to goals of safety and efficiency, (2) there is no
acceptable alternative that will accomplish these goals equally well with a lesser differential racial
impact.                              ,

JUSTIFICATION

       A.  What legal precedent is there from other areas of civil rights law for "justifying"
       what would otherwise be an impermissible disparity?

              Title VI

Coalition of Concerned Citizen Against 1-670 v. Damian. 608 F. Supp. 110 (D.C. Ohio 1984)
Although a proposed highway project to  relieve traffic congestion disparately impact
predominantly African American neighborhoods, the court found that defendants met their burden
of justifying the disparity by articulating legitimate nondiscriminatory reasons for the chosen
location.  The court also ruled that the less discriminatory alternatives articulated by the plaintiff
failed to meet the project's program objectives and therefore did not constitute a Title VI
violation.

Georgia State Conference of Branches ofNAACP v.  State of Georgia, 775 F.2d 1403, 1417
(ilth Cir. 1985).  African American students were disproportionately placed in low level
achievement groupings. The court found that Defendant's achievement groupings bore a manifest
demonstrable relationship to classroom education and were justified by lowering student-teacher
ratios, improving class manageability, and student motivation.

Larry P. v. Riles. 793 F.2d 969, 982 (9th Cir. 1984),  A school system used an intelligence test
that disproportionately placed African American students in classes for the learning disabled.  The
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court found that the unvalidated test was not an educational justification under Title Vf.
Elston v. Talladeza County Bd. OfEduc.. 997 F.2d 1394 (1 1th Cir. 1993), Plaintiffs alleged that
a school board's decision to place a new school in a predominantly- white neighborhood increased
the racial identifiability of the formerly segregated school system." The court found that even if the
new school increased the racial 'identifiability of the school system, the siting decision was justified
by the absence of adequate land in the African American neighborhood.

MA.'A.CP. v: Medical Ctr.. Inc.. 651 F.2d 1322, 1332 (3rd Cir.  1981). A city hospital decided to
rf!?cate to a iS^i3311 are,a to 1^ the financi^ profits needed to improve the quality of care and
keep the hospital's educational accreditation.  The court found that the defendant's plan to
relocate was a substantial legitimate justification for the racial disparity.it created. The court also
found that the provision of shuttle bus service between the old location and the new hospital
mitigated much of the racial disparity created by the plan.

New York Urban League v. New York 71 F.3d 1031 (2d Cir. 1995). Users of New York's public
transit system alleged that subsidies provided to commuter rail users disparately benefitted the
predominantly white commuter rail users.  The court found that the benefits that commuter rail
subsidies produced for the city (minimized road congestion, decreased pollution, increased
subway and bus rider ship) constituted a substantial legitimate justification for the disparate rates
payed by the different transit system users.

Linton Bv Arnold v. Carney Bv Kimble. 779 F. Supp. 925 (M.D. Tenn. 1990), The court found.
tlgt the defendant's explanation that "self-selection preferences"  of minorities, based upon
reliance upon the extended family, lack of transportation, and fear of institutional care are
inadequate justification for the minority under representation in nursing homes.
            """'''    ' '         "         •...,-      .           .....   ^     I          v

                ,  724 F. Supp. 888 (S.D. Fla.  1987), A funding mechanism used by Florida to  •
provide assistance for elderly residents disproportionately benefitted white residents.  The court
found no justification for disparity in funding where the defendant failed to show that the
intrastate funding formula used by Florida bore a."manifest demonstrable relationship" to
achieving the goals mandated by the Older Americans Act.
  •           ..........             •     '        '     "      ....,)          '     ,    .
Groves v. Alabama State Bd. ofEduc.. 776 F. Supp. 1518 (M.D. Ala 1991). The requirement
that college entrants achieve a minimum score on the American College Test (ACT)
disproportionately excluded minority students from college entrance . The court found that the
State Board of Education requirement of a college entrance examination was not justified as
essential to participation in college.
  v  !   ,    '."..  !,:"' :       .  :  •••    :       •,     '•   ..,;'   •  :*: ;•!.••   .!]  ,  .   •'   ,..•     •  "
Chicago v. Lindlev^ 66 F.3d 819 (7th Cir. 1995). The Older Americans Act (OAA), 42 U.S.C.
3<301-3058ee, directed the federal government to distribute funds to the states in order to provide
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services to "older individuals" (i.e., over 60 years of age). The State of Illinois developed a
formula to allocate, its money among the local jurisdictions. That formula considered, among
other things, the number of older individuals who are members of minority groups, who live in
rural areas, and who are at least 75 years of age. The City of Chicago claimed that the latter two
factors discriminated against minorities because older individuals'living in rural areas are 98%
non-minority and 13.7% of the state's older individuals are minorities, but only 10.7% of them are
over 75. The court found that the disparity caused by the rural factor in Illinois' formula was
justified by the language of the OAA requiring a minimum spending amount for elderly persons
residing in rural areas.

Grimes exrel. Grimes v. Sobol. 832 F. Supp. 704  (S.D.N.Y. 1993), aff'd, Grimes ex rel. Grimes
v. Sobol. 37 F.3d 857 (2d Cir. 1994), plaintiffs amended their earlier complaint to allege that
defendant violated DOEd's Title VT regulations. A violation of the regulations occurs when the
"criteria or methods of administration" have the effect of discriminating on the basis of race. The
court held that the regulations do not encompass auricular content, based on DOEd's conclusion
that its own Title VI and DC regulations did not apply to curriculums.

Young v. Montgomery County. 922 F. Supp. 544 (M.D. Ala. 1996). Plaintiffs, African American
student athletes seeking to transfer through a minority to majority program, challenged the
discriminatory effect caused by a board of education policy requiring them to forego one year of
athletic involvement. The court found that the policy was not adverse in that it benefitted the
minority, schools that students were transferring from. The court also stated that the Board of
Education's intent to prevent athletic recruiting from majority high schools served as a substantial
legitimate justification of the adverse impact experienced by transferring students.

Bryan v. Koch. 627 F.2d 612 (2d Cir. 1980), Closing a hospital which served a 98% minority
.population for financial reasons did not show discriminatory intent. Even assuming a disparate
impact - the city showed "appropriateness" (fiscal  realities) of closing hospital which was justified
on the grounds that the closure would reduce expenditures and increase efficiency within the
municipal hospital system.  Dissent (in part) argued that the city had made no showing that
closing this hospital was the result of a "rational decision making process." Among the criteria
evaluated by the court was a comparison of each of the municipal hospitals with regard to (a)  ,
hospital size, scope of patient services, and extent of usage; (b) patient access to  comparable
alternative facilities;  (c) quality of plant and operations;  and (d) present and predicted fiscal
performance. Summarized in Grant v. New York State Office of Mental Health, 646 N.Y.S.2d
 1018, 1023 (N.Y. Sup. 19'96).

Gomez v. Chodv. 1987 WL 9574, *5 (N.D. 111. 1987). Assuming that plaintiffs had  made a
showing of discrimination based on national origin, the court concluded that the evidence
establishes a legitimate, nondiscriminatory purpose in displacing the residents. The Grove Street
Apartments had been declared a public nuisance, living conditions were unsafe and generally
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 intolerable.  Condemnation proceedings had begun, and the apartments were going to be torn
 down in any event.  The documented "uninhabitability" of the apartments provides ample
justification for Defendants' targeting the site for either demolition or rehabilitation.
           *               *                                          '!
African American Leeal Defense Fund. Inc. v. New York State Pep 't ofEduc.. 1998 Lexis
 (S.D.N.Y. 1998), Substantial legitimate justifications were "obvious and essentially not disputed"
 where legislation provided for state wide distribution of financial aid to public schools on the basis
 of student attendance rather than enrollment (resulting in greater dollars per pupil of state aid to
 non-city public schools). The state has an interest in paying only for those students who actually
 attend classes in order to encourage schools to improve attendance and spend funds effectively.
Here, the court found no disparate impact under Title VI where differences resulted from societal
 factors having a disproportionate impact on minorities.
                     •
                                              '
                 ^ 7 F. Supp.2d 1234, 1264 (M.D. Ala.  1998). The policy and regulation of
                                                   .      .
Alabama Department of Public Safety under which driver's license examinations were
administered only in English had impermissible disparate impact on basis of national origin in
violation of Title VI, It was npt supported by substantial legitimate justification, which may be
that the challenged policy was necessary Jo meeting a goal that was legitimate, important, and
integral to defendant's institutional mission.  Alleged safety concerns did not provide substantial
legitimate justification because non-English speakers with valid licenses from other states and
countries were allowed to drive in Alabama, nothing indicated that deaf or illiterate English-
speaking drivers, for whom accommodations were made, posed any less of a safety risk, and
utilization of international highway symbols meant that non-English speakers could drive safely in
Alabama.  Alleged administrative concerns did not provide substantial legitimate justification since
Department had in the past successfully administered examinations in 14 foreign languages for
over a decade, and Department expended substantial resources making accommodations for deaf
or illiterate English speakers who took examination.

Scelsa v. City University of New York.  806 F. Supp.  1126, 1140 (S.D.N.Y^ 1992),'while CUNY
may be able to proffer non-discriminatory reasons for discrete actions and for employment
decisions taken with respect to specified individuals,  plaintiffs may still prove their case if CUNY
cannot legitimate an employment regime in which almost two decades of stated commitment to
increase the representation of Italian- Americans has yielded no significant progress. Defendants
have not presented any reason, legitimate or not,  as to why this is the case. Secondly, defendants
h|ye provided no reasons for the current low employment percentage of Italian- Americans in the
CUNY staff and faculty workforce. When defendants in a civil rights case such as this can
provide no reasons for the under-representation of a protected class within a workforce, the
inference is that the only rational way to explain the disparity is discrimination.
         v. City ofDothan. 818 F.2d 755 (llth Cir. 1987). Plaintiffs were minority residents who
claimed that city improvement projects had discriminatory impact because projects in
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 predominantly white areas received higher percentage of municipal funds than projects in black .
 areas. The court of appeals found that the effect of the project at issue was that blacks had to pay
 a higher cost of the improvements than whites had to pay for similar improvements in past
 projects.  The court also rejected the district court's finding of "surrounding circumstances"
 which canceled out any discriminatory effect the improvement project may have had on the city's
 black citizens. One such circumstance was the fact that whites owned 50% of the property in the
 improvement area and would be responsible for the assessments on those properties. While the
 court agreed that this fact was relevant, it noted that ultimately blacks would be responsible for
 these costs as most of the property in the area was at least occupied by blacks, if not owned by
 them. Overall, the percentage of blacks living in the project area was much higher than the
 percentage of blacks in the population.  The court found that the plaintiffs had carried their
 burden of showing a disparate impact and remanded the case to the district court for a
 determination and award of appropriate relief.

              Title Vn

                     "Business Necessity/Job-relatedness"

       SEE ALSO CASES DIGESTED IN MITIGATION SECTION

       The Civil Right Act of 1991 ("1991 CRA") provides, that when a plaintiff in a disparate
 impact case has shown that a particular practice causes a disparate impact, the defendant has the
 burden of proving "that the challenged practice is job-related  for the position in question and is
 consistent with business necessity." 42 U.S.C. Sec. 2000e-2(k)(l)(A)(i).

 Wards Cove Packing v. Antonio, 490 U.S. 642 (1989). Court generally described a policy or
 practice which is justified by "business necessity" and/or " job-relatedness" as one which serves,
 in a significant way, the legitimate interest of the employer, but which is not necessarily essential
 or indispensable to the employer's interests. Note: There is some doubt that this holding is still
 good law since the 1991 CRA specifically overruled Wards Cove as to the allocation of the
. burden of proving business necessity and as to the definition of an "alternative employment
 practice," but did not specifically overturn Ward Cove's definition of business necessity or even
 define business necessity in a way that is obviously inconsistent with Wards Cove's definition.
 However,  some recent court decisions hold that the history of the 1991 CRA indicates that
 "Section 2000e-2(k)(l)(A) was designed to codify the concepts of'business necessity' and 'job
 relatedness' as they existed before . . . Wards Cove [Le., the definitions articulated in Griggs v.
 Duke Power Co.  and NYC Transit Authority v. Beazer, infra]." See also Donnelly v. Rhode
 Island Board of Governors, 929 F. Supp. 583, 593 (D.RJ. 1996).

 NYC Transit Authority v. Beazer. 440 U.S. 568, 587 (1979).  Employer rule excluding use of all
 narcotics, barbituates, amphetamines, and most methadones is justified as job-related in that it
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promotes legitimate employer goals of safety and efficiency.  The Court agreed with the District
Court that these goals are "significantly served by—even if they do not require—[defendant's rule]
.... The record thus, demonstrates that the ... [defendant's] rule bears a 'manifest relationship
to the employment in question.' Griggs, 401 U.S. at 432. See Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975)."

Griszs v. Duke Power Co.. 401 U.S. 424 (1971). Court held that to meet its burden of
establishing "job relatedness" or "business necessity," a defendant has "the burden of showing that
any given requirement [has]... a manifest relationship to the employment in question." Applying
this standard, the Court held that the employer's requirement of a high school degree and passage
of general intelligence test as conditions of hire and transfer was not shown to be significantly
related to job performance so as to justify the requirement's disparate impact on blacks.

Dothardv. Rawlinson. 433 U.S. 321 (1977). Alabama's minimum height and weight
requirements for hire of correctional counselors was not shown to be significantly related to job
performance so as to justify the requirements' disparate impact on women. The Court rejected
employer's argument that the requirements were justified because they have a "relationship to
Strength, a sufficient but unspecified amount of which is, essential to effective job performance as a
correctional counselor" noting that "the appellants produced no evidence correlating the height
and weight requirements with the requisite amount of strength thought essential to good job
performance." The Court then stated that "if the job-related quality that the appellants identify is
bona fide", the employer could have adopted a test to directly measure strength instead of relying
cp height and weight statistics. However, the Court indicated that, an argument (not made by the
eiriployer) that apparent strength, rather than actual strength (which might be measured by height
atid weight statistics) could be sufficiently necessary to the position of correctional counselor so
as to justify disparate impact on women.

Dalev v. City of Omaha. 107 F.3d 587 (8th Cir. 1997).  Court held that city's purpose in
^classifying library positions to (1) bring employees' wages into conformity with wages paid in
comparable cities and (2) promote fairness were valid business justifications for the disparate
impact on female employees caused by the reclassification. [Note: this case applies the Wards
Cove definition of business necessity and not the standard as articulated by the 1991 Civil Rights
Act because the Civil Rights Act was not retroactive, so it did not apply to the case.]

Donnellyv. Rhode Island Bd. of Governors. 929 F. Supp. 583 (D.R.I. 1996).  Court finds that
the history of the 1991 Civil Rights Act indicate that "Section 2000e-2(k)(l)(A) was designed to
codify the concepts of'business necessity' and 'job relatedness' as they existed before .. . Wards
Cove [i.e., the definitions articulated in Griggs v. 'Duke Power Co. and NYC Transit Authority v.
Beazer. supra]." The court noted that a previous version of the 1991 CRA used the phrase
"required by necessity," but was replaced by the language "consistent with business necessity"
suggesting that Congress "meant to require something less than a showing of indispensability."
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The court also noted that if a demonstration of business necessity required defendant to show that
the practice was indispensable, then no alternative less discriminatory practice could exist and the
provision of the 1991 CRA which places the burden of establishing the existence of an alternative
employment practice on the plaintiff would be meaningless. The court concludes that "What the
[1991 CRA] appears to require [from defendants] is proof that the challenged practice is
reasonably necessary to achieve an important business objective." In this case, the court found
that the defendant showed  that a three-tiered system of minimum salaries for its teachers, while
not absolutely necessary to any business goal, was justified as reasonably necessary to achieve the
important business purpose of maintaining the highest quality professors at a relatively low cost.

EEOC v. Steamfttn Clerks Union Local 1066. 48 F.3d 594, 605 (1st Cir. 1995), cert  denied,
516 U.S. 814 (1995).  Court addressed a union policy which required that new applicants be
sponsored by an existing union member. The court rejected the Union's argument that the policy
was necessary to "continue family traditions" and held that the disparate impact on black
applicants caused by this policy w^s not justified since continuing family traditions was not
necessary to the business of steamship clerks.

Lonsv. First Union Corp.  of Virginia. 894 F. Supp. 933, 941 (E.D. Va. 1995), aff'd, 86 F.3d
1151 (1995).  Court held that employer established business justification for its English-only rule
where the rule was enacted to prevent bilingual employees from intentionally speaking in Spanish
in order to isolate and intimidate members of other ethnic groups. Court also held that the
employer's revocation of the rule did not establish that the rule was not necessary for business.

Fitzpatrickv. City of Atlanta. 2 F.3d 1112, 1118-19 (11th Cir. 1993).  City's prohibition of
shadow beards on firefighters was job-related as necessary to protect the firefighters from a health
and safety risk. However,  the court emphasized that an employer must do more than merely
recant a safety reason in order to establish business necessity or job-relatedness; the employer
must prevent convincing evidence that the challenged practice is required to protect employees or
third parties from documented hazards.

Bradley v. Pizzaco of Nebraska. Inc.. 7 F.3d 795 (8th Cir. 1993). Court held that the  1991
CRA's standard for establishing business necessity requires a defendant to show (a) that the
practice at issue have a manifest relationship to the employment in question; (b) that there is a
compelling need to maintain the practice; and (c) that there is no alternative to the challenged
practice. Applying this standard, the court found that the defendant pizza place failed to justify a
"no beard rule" which disparately impacted black males as necessary to its business.

Newark Branch ofNAACPv. Harrison. 940 F.2d 792 (3d Cir. 1991). Court addressed a
residency requirement for uniformed and non-uniformed employees of town police department
that had a substantial disparate  impact on blacks. Court rejected Town's argument that the
requirement was justified for uniformed employees because (a) it promoted quick response to
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 emergencies, (b) the employees would know the neighborhood better and would be more diligent
 in protecting it due to their increased loyalty as residents, and (c) allowing non-residents to apply
 would dramatically increase the number of applications received and would cost the Town too
 much to process. The court also rejected the Town's argument that the residency requirement
 was necessary for non-uniformed employees because residents would have more loyalty to the
 police department. The court ultimately held that the residency requirement, which prevented any
 blacks from being hired, was not justified as a business necessity or as job-related.

 Nash v. Consolidated City of Jacksonville. 905 F.2d 355, 358 (llth Cir. 1990), cert, denied, 498
 U.S. 1098(1991). City failed to establish that examination qualification for firefighters was
 justified as business necessity-or as sufficiently job-related.

 Stephen v. PGA Sheraton Resort. 873 F.2d 276 (11th Cir. 1989). Court held that business
 justification existed for termination of non-English speaking employee since language barrier
 prevented employee from adequately performing his job as a deliverer of supplies.

 Chambers v. 'dmaha Girls Club. 834 F.2d 697 (8th Cir.  1987), reh'g denied en bane, 840 F.2d
 583 (1988). Court held that "role-model" rule which.banned single parent pregnancies among
 s|afFmembers: was justified by business necessity since there was a manifest relationship between
 the Club's fundamental purpose (to provide girls with positive life options) and the rule.

 Cra/gv. Alabama State  University. 804 F.2d 682 (11th Cir. 1986). Assuming ASU's study leave
 golicy, which granted hiring preferences to current employees, caused a sufficiently substantial
 disparate impact on women (since it tended to freeze the status quo), it was not justified as a
 business necessity. The  court held that ASU's argument, that the policy promoted a better
 qualified staff, was not supported by competent evidence.

 Davis v. Richmond 803 F.2d 1322 (4th Cir. 1986).  City's requirement that applicants for
 apprentice engineer positions must have previous train experience,  was not justified as business
 necessity since persons without train experience could do well in apprentice program.
            ",-,,!;, I, ,':„;,:!  ' :"    :   "' '..-'   ," .    'i:,:.    "" :.',''"    :"    • .  (•'»! i,1' '•.  ." fit1,  111 i „ •'•„'   , ':  •  ,     •:•'•'
Aguilera v. Cook County Merit Board. 760 F.2d 844 (7th Cir. 1985), cert, denied, 106 S. Ct. 237
 (1985). County requirement that its corrections officers have a high school diploma or
 ^fuivalency certificate was sufficiently job-related so as to justify any disparate impact on
 Kspanics.

Davis v. Citv of Dallas.  777 F.2d 205 (5th Cir. 1985), cert, denied, 106 S. Ct. 1972 (1986).
 ^^uisites for police academy applicants of (a) 45 semester hours of college; (b) no recent or  .
 ^Sjepiye marijuana use; and (c) no recent hazardous driving convictions were sufficiently job-
 related because the prerequisites tend to ensure that police (a) will have "professionally maturity;
 (b) will enforce laws in unbiased manner; (c) and will have safe driving habits. Court also
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reasoned that the prerequisites were justified because there is an extraordinary risk involved in
having unqualified police officers.

Hawkins v. Bounds. 752 F.2d 500, 502 (10th Cir. 1985). Court held that no business necessity
justified adverse impact created by employer's policy of assigning employees to temporary
positions and then weighing experience in these temporary assignments heavily when hiring for
permanent positions.

Merwine v. State Inst. o f Higher Learning Bd. of Trustees. 754 F.2d 631 (5th Cir. 1985), cert.
denied, 474 U.S. 823 (1985). Court held that requirement that applicants for faculty librarian
position hold master's degree was justified as business necessity.

Craw ford v. Wester Elec.  Co.. 745 F.2d 1373 (llth Cir. 1984),,reh'g en bane denied, 751 F.2d
394.  Employers wholly subjective employee evaluation system which had no written standards
for evaluation, no requirement that reasons for promotions be documented, and did not require
that decision makers keep written records of the quality and efficiency of employee's work was
not justified by business necessity.

Zahorikv. Cornell Univ.. 729 F.2d 85 (2d Cir. 1984).  Court held that disparate impact caused by
university's professor selection criteria which included consideration of accomplishment and skills
in scholarship as judged by peers was justified since these selection criteria were job-related.

Carpenter v.  University of Wisconsin Svs. Bd. Of Resents. 728 F.2d 911 (7th Cir. 1984). Court
found that tenure criteria which included demonstration of reasonable likelihood of future growth,
performance in teaching, research and scholarly writing, service to the community, and at least a .
minimal level of competence were job-related.

Caviale v. Wisconsin Pep't of Health and Social Serv.. 744 F.2d 1289, 1294 (7th Cir. 1984).
Court held that the disparate impact on women caused by State's policy of hiring only persons
who participated in a Career Executive Program was not justified because policy was not job-
related.                                            .••'..•

Wright v. Olin Corp.. 697 F.2d 1172 (4th Cir 1982). Court subjected employer's fetal protection
policy to a disparate impact analysis. (NOTE: Fetal protection policies are now usually analyzed
under the disparate treatment standard.) Court held that the defendant could show zprimafacie
business necessity defense with proof that (1) the risk of harm which the policy attempts to lessen
or eliminate must be sufficiently compelling to overcome the disparate effect which the practice
causes, and (2) the policy effectively avoids the harm and is reasonably necessary to avoid the
harm.  The Court noted that the defendant must prove a business necessity objectively;
defendant's belief that the policy is necessary is not sufficient.  However, defendant is not required
to show a general consensus among experts on the degree of risk of harm and necessity of the
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 policy to address the risk, but only "a considerable body of opinion" such that'"an informed  •
 employer could not fail to act on the assumption that the opinion is an accurate one."

 BoniUav. Oakland Scavenger Co.. 697 F.2d 1297,1303 (9th Cir. 1982), cert, denied, 467 U.S.
 1251 (1984).  Court found that nepotism is not a legitimate business justification for policy
 limiting share ownership to employees of Italian ancestry who were related to or were close
• fiends of current share holders and then giving better jobs and more hours to the shareholder
 ftnployees which had a disparate impact on black and Spanish-surnamed employees.

 Wambheim vJ.CPennev.  Inc..  705 F.2d 1492, 1494 (9th Cir. 1983), cert denied, 467 U.S.
 1255 (1984).  Court held that employer's policy of providing medical care coverage to spouses
 only if the employee was a head of household (the employee earns more than 50% of the
 combined family income) which disparately affected female employees (far fewer female
 employees qualified as a head of household than did male employees) was justified as business
 necessity because the policy sought to provide medical insurance to employees most in need of
 coverage (the spouse who earns more than 50% of the family's combined income will usually
 have the better medical policy thus the only employees who need spouse coverage are those who
 e=|m more than his/her spouse) while keeping costs of the plan as low as possible.

 Colbv v. J.C. Pennev Co.. Inc.. 811 F.2d 1119 (7th Cir. 1987).  Seventh Circuit criticized Ninth
 Circuit's finding in Wambheim that business justification existed for Penney's "Head of
 Household" policy. The Seventh Circuit argues that if Penney is correct in assuming that an
 employee who earns less than his/her spouse does-not need coverage since he/she would be
 covered under the plan of his/her higher paid spouse, the employee would not elect coverage
 anyway, and thus the  cost of the medical program would not be affected by abrogating the head
 of household rule. However, since the parties had not addressed the issue of business necessity,
 court did not decide the issue.
 Chrisner v. Complete Auto Transit. Inc.. 645 F.2d 1251 (6th Cir. 1981). The district court
 rejected the defendant's business necessity defense for a two-year experience hiring, requirement
 Because although the defendant showed a compelling business necessity for the employment in
 question, the defendant had not shown the unavailability of alternative hiring practices which
 would have less of a disparate impact.  The Sixth Circuit reversed on the grounds that the lower
 c;ourt improperly placed burden of proving the existence of an AEP on the defendant. The Sixth
 Circuit explained that the district court "unjustifiably collapsed the three-step [disparate impact]
 test employed in Griggs into a two-step examination in which the defendant was burdened with
 proving .. . that its hiring requirements would have the least disparate impact of all conceivable
 requirements which satisfactorily measure applicants for employment," making the third step
 superfluous.  The Sixth Circuit noted that although many court opinions interpret "business.
 necessity" to require that the challenged practice is absolutely necessary or inherently essential,
 this interpretation has not been adopted by the Supreme Court.  Instead, the Supreme Court's
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articulation of the business necessity test in Griggs [manifestly related to employment and
necessary to safe and efficient job performance] should be followed. The Sixth Circuit expounds
on the Griggs standard stating: "For a practice to be necessary ... it need not be the sine qua non
of job performance; indispensability is not the touchstone. Rather, the practice must substantially
promote the proficient operation of the business."

Burwettv. Eastern Airlines. 633 F.2d361  (4th Cir. 1980), cert, denied, 450 U.S. 965 (1981).
Court held that airline's policy of forbidding flight attendants to fly while pregnant was business
necessity and job-related since it promoted goal of passenger safety which goal was sufficiently
compelling to overcome the disparate impact.

Grant v. Bethlehem Steel Corp.. 635 F.2d 1007, 1019 (2cl Cir. 1980).  Court held that nepotism
was not legitimate business justification for policies which had a disparate impact on protected
groups by maintaining the status quo.

Horace v. Pontiac. 624 F.2d 765 (6th Cir  1980). Mandatory height requirement of 5ft Sin for
police officers was not justified by business necessity. Court rejected employer's argument that
requirement was necessary since there was a greater likelihood that a shorter police officer would
be assaulted on the street than would a taller one.

Pea-son v. Kaiser Aluminum & Chemical Corp.. 575F.2d 1374, 1389  (5th Cir. 1978), reh'g
denied, 583 F.2d 132, cert, denied, 441 U.S. 968 (1978). To establish business necessity,
defendant must show (1)  that practice is essential to goals of safety and efficiency, and (2) there is
no acceptable alternative  that will accomplish these goals equally well  with a lesser differential
racial impact. Court remanded case for determination under this.itandard.

Spurlock v.  United Airlines, Inc.  475 F.2d 216 (10th Cir. 1972). Prerequisites for commercial
pilot training of: (a) a commercial pilot license, (b) 500 logged flight time,  and (c) college degree
was justified as job-related since pilots require a high degree of skill, and an unqualified pitot .
causes a significant risks. The court stated:  "When a job requires a small amount of skill and
training, and the consequences of hiring an unqualified applicant are insignificant, the court should
examine closely any pre-employment standards which discriminate against minorities .... [But]
when a job clearly requires a high degree of skill and the economic and human risks involved are
great, employers bear a corresponding lighter burden to show that its  employment criteria are job-
related."          .

 White v. Carolina Paverboard Co.. 564 F.2d 1073 (4th Cir. 1977) and Pettwav v. American Cast
Iron Pipe Co.. 576 F.2d  1157 (5th Cir. 1978), reh'g denied, 581 F.2d 267 (1978), cert, denied,
439 U.S. 1115 (1979). Employer's policy of promotion based on "lines of progression" justified
as business necessity where employer can show by competent evidence that progression was
functionally related to job.
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              Title EX
       Cases discussing the justification issue under Title IX do riot set out a standard for what
might justify a disparate impact. Rather, the few cases that address the issue merely reject the
specific argument of Defendants attempting to justify the disparate impacts found. The message
seems to be that nothing can justify a disparity under Title DC.

Roberts v. Colorado State Univ.. 814 F. Supp. 1507 (D. Colo. 1993), off'din part and reversed
on other grounds, 998 F.2d 824 (10th Cir 1993), cert, denied, 510 US 1004, 126 L. Ed. 470
(1993). Court held that school's financial crisis did not justify gender discrimination under Title
'DC.      ,    .   ,	        .<                              .   . ,..  .   ,,_  j.;

Favia v. Indiana Univ. of Pa.. 812 F. Supp.  578 (W.D. Pa. 1993), ajf'd, 7F.3d 332 (1993).
Court held that school could not justify elimination of women's gymnastics program by showing
that NCAA did not sponsor a women's gymnastic championship.
  :;,,, , ,;   ;;:,   :-  ;,;„;; '    •  .   ..:,         ;,  „• ;      „/  .  ;,   '  '  '   •    ":  \   •' ''   '
Women Prisoners of District of Columbia Dev 't of Corrections v. District of Columbia. 877 F.
Supp.634 (D.D.C 1994), vacated in part, tnodified in part on other grounds, 899 F. Supp. 659
CO.D.C. 1995;),vacated, in part, on other-grounds, remanded, (D..C. Cir. 1996), cert,  denied, 137
!«,Ed.2d 701 (1997).  Disparity between education and work programs available to male and
female prisoners was not justified by the following purported reasons: (a) female prisoners might
need greater supervision if working along side of male prisoners; (b) female prisoners are more
o||en yictims cjif sex abuse; (c) female prisoners have more problems with substance abuse; or (d)
female prisoners have greater responsibility for children.

STANDING ;:"   " •    '    '  '    :"       '         ;   '     ..     '
  1'	i,  ':	;li  !!' till :   	•''.,'     .         .',..!•  "!!', ,    ', •'  '  |l ' . ,       . "
       A. What is the nature of injury required to maintain a Title VI cause of action?
       B. What is the nature of injury required for communities  to maintain a Title VI
       cause of action?
Bryant v. NJ. Den't ofTransp.. 998 F. Supp. 438 (D.N.L March 18, 1998) Residents of minority
community alleged harm from construction of bridge and tunnel to facilitate access to the site of a
future casino was discriminatory in that their homes would be subject to condemnation. Plaintiffs
interests fall within zone of interests Title VI is designed to protect—i.e., persons being
discriminated against by the administration of a federally funded program. Court applied Supreme
Court ruje frqm Nat'I Credit Union rejecting the intended beneficiary doctrine. Court also relies
upon regulations promulgated by DOT.

Sandoval v. L.N. Hasan. 1 F. Supp. 2d 1234 (M.D. Ala. 1998). Plaintiff challenged Department
of Public Safety's policy of administering driver's license examination in English only.  Court
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applied the Lujan standing test and found that Plaintiff suffered particularized injury, that a causal
connection exists between injury complained of and Defendants' actions, and that plaintiff's injury
is capable of redress via a favorable court decision. Court states that plaintiff was an intended
beneficiary, and thus the confusion caused by Nat'l Credit. Union does not affect plaintiffs
standing,

Jackson v. Katv Independent School Dist.. 951 F. Supp. 1293 (S.D. Tex. 1996). Parents allege
school district discriminated against biracial student in adverse discipline administered;  parents
lacked standing to assert damages under Title VI in their own right, as they were not intended
beneficiaries of or participants in federally funded program, but could bring action on behalf of
their son who, as intended beneficiary of school district, had standing to assert claim of racial
discrimination under Title VI.

Neighborhood Action Coalitions v. City of Canton. Ohio. 882 F. 2d 1012 (6* Cir., 1989).
Citizens and association allege inferior provision of services to minority neighborhoods resulting
in diminution of property values and challenges application of HUD Block Grants. Residents had
standing to sue under Title VI in their own right, while organization had standing to seek
injunctive relief, but did not have standing to  seek damages.

De Jesus-Keolamphu v. Village ofPelham Manor. 999 F; Supp. 556 (S.D.N.Y., 1998).
Residents of neighborhood challenge placement of residential home for mentally retarded.
Residents contend that mentally retarded residents would be disadvantaged by being located in a
minority community.  Quotes from Supreme Court precedent that plaintiffs may not claim
standing to vindicate the constitutional or statutory rights of third parties unless 1) third parties
have suffered an "injury in fact," 2) plaintiff has a "close relation" to the third parties such that the
plaintiff will effectively represent the third parties' interests, and 3) the third parties are hindered
in their ability to protect their own interests. .The court did not apply the Supreme Court's
rejection of the intended beneficiary doctrine in National Credit Union, supra.

Alabama State Univ. v. Baker & Taylor. 998 F. Supp.  1313, 1315 (M.D. Ala. 1998) State
universities are "state instrumentalities" and thus lacks standing to seek an injunction under Title
VI. See also Dekalb County School District v. Schrenko, 109 F.3d 680, 689 (11th Cir. 1997)
(school district, as political subdivision, cannot sue same state for breach of Title VI; also , for
standing, taxpayers  must allege an injury in fact distinct from that suffered by all.or a large class of
citizens under Worth v. Seldin, 422 U.S. 490 (1975)). But see City of Chicago v. Lindley, 66
F.3d 819, 828 n. 11  (7th Cir. 1997) (city has standing to raise Title VI because it has been harmed
directly by discriminatory funding formula, and because it is an advocate,under a program specific
statute for its residents/beneficiaries).

Freedom Republicans. Inc., v. Federal Election Comm 'n. 13 F.3d 412 (D.C. Cir. 1994).
Plaintiffs do not sufficiently allege a causal nexus between-Federal agency actions and the
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 allegedly discriminatory actions of recipient. Also, no adequate likelihood that injury could be
 redressed.

 Laramore v. Illinois Sports Facilities Authority. Ill F. Supp. 443 (N.D. HI. 1989). Residents of
 area adjoining site selected for new baseball stadium alleged adverse impact on minority
 neighborhood—z.e.,  forced from their homes because of increased living costs. Plaintiffs not
 intended beneficiaries of federal tax exemptions for bonds sold by stadium authority.

 Jaimesv. Toledo Metro. Housinz Authority. 758 F.2d 1086, 1100 (6th Cir. 1985).  Plaintiffs did
 not establish standing under Title VI because they failed to demonstrate a personal, particularized
 injury inflicted by defendants by not demonstrating a substantial probability that but for
 defendants' alleged violations, plaintiffs would have been able to obtain low-rent public housing
 outside Toledo.
GENERAL TITLE VI BURDEN OF PROOF

Elstonv. Taladeza County Bd. ofEduc.. 997 F.2d 1394, 1407 (llth Cir. 1993), reh'gen bane
denied, 1 F.3d 242 (llth Cir.  1993). Court recognized the following shifting burdens of proof for
a disparate impact case brought pursuant to Title VI regulations:

       "A plaintiff must first demonstrate that a facially neutral practice has a disproportionate
       adverse effect on a group protected by Title VI. If the plaintiff makes such a showing, the
       defendant then must prove that there exists a substantial legitimate justification for the
       challenged practice in order to avoid liability.  If the defendant carries this burden, the
       plaintiff will still prevail if able to show that there exists a comparably effective alternative
       practice which would result in less disproportionality, or that the defendant's proffered
       justification is a pretext for discrimination." Citing Georgia State Conference of Branches
       ofNAACP v.  State of Georgia, 775  F.2d 1403, 1417 (1 1th Cir. 1985).
             .                '          *         •' '           '         f
The court also noted that "in deciding Title VI disparate impact claims we borrow from standards
formulated in Title VIC disparate impact cases," and that although Wards Cove shifted the burden
of persuasion on the issues of the justification prong to the plaintiff, the Civil Rights Act of 1991
shifted the persuasion burden of the justification prong back to the Defendant. Thus, the court
implies that all Title VI cases decided after the effective date of the Civil Rights Act of 1991
should follow the Act's burden of proof allocations.
                                                  "
      .V' Montgomery County 922 F. Supp. 544 (M.D. Ala. 1996). Court, in education context,
recognized the following shifting burdens of proof for a disparate impact case brought pursuant to
Title VI regulations:

       "Initially, a plaintiff must show by a preponderance of the evidence that a facially neutral
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       educational practice has a racially disproportionate adverse effect. Georgia State
       Conference of Branches ofNAACP v. State of Georgia, 175 F.2d 1403, 1417 (llth Cir.
       19§5).  If the plaintiff makes such a showing, the burden shifts to the defendant to prove a
       valid justification for the practice.  Id. Should the defendant prove a valid justification, the
       plaintiff may still prevail by proffering an equally effective alternative practice which
       results in less racial disproportionality or by presenting evidence that the legitimate
       practice is a pretext for discrimination. See id"
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                            Request from Title VI Committee

         Jurisdictional Legal Issues Warranting Further Background Information

I.      Disparate Impact

       A.    What constitutes "disparity": how much must the difference be?
             1.     prior Title VI precedent (outside environmental area)
                    a.     judicial decisions
                    b.     agency guidance/decisions
             2.     prior Title VII precedent
             3.     prior Title DC precedent (?)
             4.     other analogous areas of federal civil rights law

       B.    What constitutes relevant "impact": must it be kind of impact that is the primary
            • focus of the permitting agency or can it be any impact that would be proximatelv
             caused bv the facility's operation (i.e., can it extend to social and economic
             concerns that result from the permitting facility but are not the authorized basis of
             the permitting authority's decision whether to grant a permit for the activity)
              1.     prior Title VI precedent (outside environmental area)
                    a.      need not involve a "permit"
                    b.      issue arises anytime a federally-funded entity disburses the benefits
                            of that federally-funded program (like awarding of grants,
                            construction of facilities)
              2.     prior Title VII precedent ("terms and conditions of employment"?)
              3.     prior Title.IX precedent (?)   .
              4.      other analogous areas of federal civil rights law (statutory and
                     constitutional)
              5.      NEP A and SEP As

 II.    Mitigation

       A.     Is the only  relevant mitigation that which directly reduces the disparate impact
              itself?                                                  .             .
              1.     prior use in other areas of civil rights law
              2.     prior use in other areas of environmental law
              3.     prior use in any other area of law .

      . B.     If answer to "A" is no (i.e.. tradeoffs need not be so direct! what kind of guidance
              exists from other areas of law fSEPs?~> for how tightly (or broadly) the nexus must
              be? .         '
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IV,
       C.     What is the role of mitigation?
              1.     Must states use mitigation before attempting to show "legitimate"
                     justification for the disparity?
              2.     Can it be used ,tp justify a "legitimate" justification for the disparity?
Ill    Justification
       A.     What legal precedent is there from other areas of civil rights law for "justifying"
              what would otherwise be an impermissible disparity?
              1.      Title VI or Title VII (''business necessity," etc.)
              2.      equal protection? (substantially related to compelling state interest and no
                     less restrictive alternative)
              3.      any other precedent in constitutional/statutory civil rights law

       B.     If  justifications are valid, what precedent exists for discerning legitimate scope?
              1.      emergency
              2.      public health
              3.      national security
              4.      economic profit?
Native American
       A.     Are tribal members individuals protected from discrimination by Title VI?

       B.     Are tribes the recipients of federal funds subject to Title VI' s nondiscrimination
              mandate?
  T         .'••''  "
  I!' i  :        t !j  '
V.     Standing
                                                                      i
                                                         •. .   •	  i    . .
       A.     What is the nature of injury required to maintain a Title VI cause of action?
       B.     What is the nature of injury required for communities to maintain a Title VI cause
              of action?
             	            '         	' •     ''      •     '         i
VI.     General Questions of Proof (for I-ni)
                                                                      i
                     .                                                ' '
       A.     What difference is there between proving prima facie  case and actual proof of
  	       discrimination?
                                                                      |
       B.     What level of evidence is used to decide?
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                               Appendix K: Draft Preliminary Report on
                               Incentives -Prepared for the NACEPT
                               Committee on Reinvention
                      NACEPT Reinvention Committee
                   Draft Preliminary Report on Incentives
                        (Communities and Individuals)
                             September 28-29,1998
Introduction

EPA's Reinvention efforts are part of an overall strategy aimed at making the federal
government work better, cost less, and get better environmental results.  At EPA, reinvention
means streamlining and innovating within existing programs, but it also means testing more
integrative, holistic approaches with the potential to better address unresolved environmental
problems.

As part of its reinvention efforts, EPA is interested in exploring the use of incentives for
achieving greater environmental stewardship. Traditionally, EPA has relied upon regulatory
approaches that are often viewed as disincentives or negative incentives. There are, however,
positive incentive structures, as well, that can be used to motivate environmental improvements
on the part of businesses, communities, states, and individuals. While a number of EPA
programs have been increasing their reliance on different types of incentives, there is no
explicit conceptual framework or policy regarding how incentives are employed or relate more
broadly to the Agency's mission.
Charge to the NACEPT Committee

EPA has asked the NACEPT Committee on Reinvention to advise the Agency on its use of
incentives.  The committee's charge includes helping the Agency understand how incentives
can be used most successfully to inspire industry, communities, and individuals to go beyond
mere compliance with existing regulations and to begin the process of addressing outstanding
environmental problems.  In particular, EPA is interested in the following questions:

•   What opportunities exist for EPA to use incentives to promote environmental stewardship
    in industry, states, local communities, and the general public? (i.e., what is needed to create
    an incentive structure that will drive continuous environmental improvement?)
    How can EPA evaluate the effectiveness of incentives to encourage environmental

    stewardship that lead to improved environmental results?
    What can EPA do to ensure that incentives promote and enhance public confidence?

    How can EPA measure the impact that incentives have on public confidence?

    What criteria should be used to decide whether the use of incentives is appropriate?
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   How can the concept of performance ladders be used to tailor incentives most effectively?
Definition of Incentives
EPA defines incentives very broadly.  Anything that motivates a company, an individual, a
community, a state, or any other organization or institution to make changes in the direction of
improved environmental protection is considered an incentive. Within this context, incentives
can include both negative and positive motivators. Negative incentives may include penalties,
fines, or even criminal prosecution. Positive incentives are often harder to define and
categorize, but may include such things as public recognition and certification, environmental
information and education, regulatory flexibility, permit expedition, or compliance assistance.

The Committee has decided not to devote substantial effort to developing precise definitions or
taxonomies for incentives. Both EPA and the Committee agree that the primary issue of
interest is how EPA can better employ what are generally viewed as positive incentives.
However, the Committee would note that positive incentives usually cannot and should not be
separated from negative incentives. In many instances, the negative incentives embodied in
traditional regulatory requirements, in fact, create the opportunity to establish positive
incentives.  For example, incentives such as expedited or flexible permits, are possible only
because the regulatory system requires such permits in the first place. Secondly, positive and
negative incentives must be viewed in tandem because the Agency needs both kinds.  The
value and effectiveness of these various incentives may depend upon the industry sector, the
level of motivation and knowledge, the environmental problem to be solved, or a variety of
other factors.
Committee Overview
  ...       	                         .            ...      ..,.,(,

The Committee has agreed to structure its deliberations by focusing on the use of incentives in
four; different; arenas: communities, individuals, industry, and states. Separate meetings will be
devoted to each of these sectors, with presentations at each meeting that offer information and
perspective from a variety of different programs and experiences. The Committee's schedule is:
       September 28, 1998
       September 29,1998
       December 8-9, 1998
       March1999
Individuals
Communities
Industry
States
In general, it should be noted that the Committee supports EPA's efforts to seek opportunities
to use incentives because the Committee believes that incentives can be useful tools for
improving environmental quality when used within the existing regulatory framework, as a
complement to the regulatory system, and in addressing environmental problems that are not
axnehable to regulatory approaches.
                                                                         000204
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This report presents the Committee's preliminary conclusions regarding EPA's use of
incentives for individuals and communities. These two sectors were the focus of the
Committee's September 28-29, 1998 meeting. In the future, the Committee will provide
recommendations regarding EPA's use of incentives with industry and states, as well as a more
comprehensive conceptual framework that addresses the relationship among incentives of
various types.
Incentives for Individuals

General Conclusion: There are opportunities that EPA should pursue to use incentives to help
individuals make the connection between their behavior and environmental results.

The committee concludes that in pursuing the use of incentives for individuals, EPA should:

1. Understand what motivates individual behavior
EPA has traditionally focused its attention on industry and businesses that it regulates. The
Agency is beginning to be more sophisticated in understanding what motivates businesses to
change their behavior. However, there is less attention being paid to understanding what
motivates individuals. The large number of individuals in the U.S. and their cumulative
environmental impacts make them an important population to recognize. Because of their
importance, the Agency needs to begin to understand what motivates individuals to both learn
and act. In particular, EPA should involve behavioral scientists in the design of its
incentive programs and incorporate the lessons learned from behavioral research. Funds
spent on social science research at EPA is insufficient: more funding is needed to research
the avenues that might be used to motivate individuals. Don't assume you know what
motivates people;-ask them.

It is important for EPA to think of the individual as a consumer. To a large extent, individuals
make decisions as consumers, based on the value that they receive for a certain product or set
of products. As a group, individuals as consumers play a large role in influencing
companies from which they buy! Thus, if EPA can influence decisions that individuals
make as consumers, it can also influence industry.

Consumers gain information about products from the products themselves. They gain
information about its value from the price of the product and from its label. One way EPA can
influence consumers is by affecting labels on the products that they buy.  Making adequate
information available on a label is one way to motivate consumer choices. Through the
Consumer Labeling Initiative, EPA's Pollution  Prevention Division has found  that an effective
way to determine how to motivate consumers with labels and other information is to hold
panels and focus groups composed of consumers.
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 I":
             One important lesson from the Consumer Labeling Initiative is that motivating information is
             effective only if it comes from sources that individuals trust. For example, private citizens tend
             |p trust people and institutions with similar value sets - their churches, their neighbors, etc.
             They may not trust government agencies or business advertisements. Therefore, EPA should
             consider how to deliver information to individuals using sources that they trust.

             One example of identifying motivators for individuals comes from the German recycling
             system. Germans found two major incentives for individuals to recycle: fees for disposal of
             garbage, and ease of recycling. One incentive captures those with no prior interest in recycling,
             and one simply eliminates a barrier that exists for those who are already motivated.

             Research conducted by Resources for the Future shows that individuals are more willing to pay
             for individual pollution than societal pollution. For example, they are more willing to pay a tax
             on the miles that they drive their own car than they are willing to pay a general air pollution
             tax.
            2. Recognize that education is more than information
            Environmental education (EE) is one of the most direct ways to motivate private citizens to
            take action or change their behavior in environmentally beneficial -ways. EE can help motivate
            individuals who are not already motivated to be environmentally responsible by making them
            aware of new issues, or it can enable those who are already motivated to take action by giving
            them information about how to act.
Environmental education needs to be more than just giving information. Many times,
information is out of context for the individual, they cannot make sense out of it, or it strikes
them as unimportant. EPA's Office of Environmental Education is working to broaden EPA
staffs understanding of how to present environmental information in a meaningful way.
i,	liii •   • .. ', "I  ,,1,1	1	  i«l	il ,,P.	  , ,,   *,   , ,	  .    -      	 O     J
Information is most helpful when it is accompanied bv suggested action strategies and
helps to develop investigative and problem-solving skills.  EE should be based upon
recognition of the following continuum:
    •  awareness of issue
	          , „            , ,     ,      ,,,;!,
    •  information gathering '
    •  attitudedevelopment
    •  problem solving and critical thinking
    •  participation in actions to help protect the environment
             Simple information about environmental problems is usually not enough to help
             individuals progress up this continuum and get to the point of taking action. EPA needs
             to ensure that it provides education that is meaningful for individuals at all points of the
             continuum.

             3. Be sensitive to different needs and circumstances
                                                                                        000206
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It is important to understand what types of information an individual needs to know and when
he or she needs to know it. Everyone does not have the same values, economic circumstances,
or level of knowledge. Thus, different people will want and need different information at
different times. People invariably pay more attention to information that they are looking for
than to unsolicited information that may appear irrelevant.

For example, focus group data from the Consumer Labeling Initiative (CLI) indicates that
consumers read product labels for information about danger that the product may pose to
themselves, their children, or their pets.  They do not pay much attention to other information
about potential danger to the environment. Therefore, EPA needs to be aware of the type of
information that is important to different segments of society and convey information with that
in mind. Also, EPA needs to think about when consumers need to hear information about
products. They look for certain information when purchasing a product,  but different
information when they are getting ready to use it.  EPA needs to learn more about the needs of
consumers and ensure that those needs are met with appropriate information.

4. Work in partnership
EPA neither is, can, nor should be the sole motivator of human environmental stewardship
behavior. Other organizations or institutions are often more  credible or effective messengers.
It is more likely that consumers will pay attention to information given to them by
organizations they are familiar with than it is that they will pay attention to information put out
by EPA. Therefore, EPA should seek opportunities to work with others  and look for
"pathways" for offering incentives to individuals. For example, EPA teamed up with industries
who own household cleaning products to bring information to individuals in a new way. In
addition, EPA can learn a great deal about marketing and reaching individuals from working
with businesses that depend upon good marketing for survival.

5. Build in evaluations
When new incentive approaches are initiated, whether on broad scales or as pilots, an
evaluation component must be included in the program. Evaluating whether incentives are
having the desired affect and whether there are unanticipated secondary results is critical. Not
only should such evaluations help to determine if the incentive is effective, but they should be
used to compare incentives to alternative approaches thai: could be used to achieve the same
goal.

In addition, understanding and communicating the efficacy of incentives will help to ensure
public confidence.  Given that the use of incentives (particularly those that involve "rewards"
 such as regulatory flexibility) can engender distrust, it is critical that EPA be able to
 demonstrate the value of incentives in more than a theoretical way.
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6. Integrate incentives into packages
Iscentiyes are not, in and of themselves, the best nor most effective approach to achieving
: environmental goals. They should be integrated into comprehensive strategies and not used in
isolation. It is important to realize that incentives can be used in many different contexts.
 IJihillj !< JM . '  i|'"1  flliJ'ill 'f 15	, ,   ,	,   ,i ,	  ,"  : •. 	iiLU'jr . :  i	 
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Second, most community organizations and decision-making processes are not oriented around
environmental issues.  Utilizing existing community structures, organizations and processes to
address environmental and other issues can be more efficient than trying to create new forums
for discussion and decision-making, and can link environmental solutions to other goals.

Finally, citizen involvement is key to effective environmental decision-making. More citizens
will be involved, and will be involved more productively, if they believe they are helping to
solve the key issues of concern to their community.

In using incentives to help communities integrate environmental concerns with other
community issues, EPA should:
1. Promote and support "bridge" organizations
Given the vast number of local units of government in the U.S., EPA cannot possibly be
directly involved in many of those communities, nor should it try to be. EPA can be most
effective if it focuses on working with "bridge" organizations - states, regional governmental
organizations, and national and regional public interest organizations — that already have
connections to community organizations.

EPA's primary role in working with bridge organizations, or directly with some communities,
should be that of facilitator. EPA should not lead the process nor set the agenda.  As facilitator,
EPA should focus on providing assistance (environmental data in useful formats, analysis
tools, information on different technologies and options, etc.) that will support, rather than
guide, community decision-making.

Many projects have demonstrated that collaboration across all levels of government can work,
and in fact is necessary to successfully address community environmental concerns. For
example, EPA has supported a series of projects in states and localities to compare risks and set
environmental priorities. These "comparative risk" projects typically involve representatives
from all relevant state and local agencies, as well as public interest organizations and members
of the public. By involving all levels of government in a project — from the problem
assessment phase to the final phase of implementation ~ EPA can support a strategic process
that harmonizes with regulatory requirements and is more likely to lead to lasting solutions.

To support community  deeision-making, EPA should look for opportunities to work with
existing organizations.  Such organizations can provide links to local communities and can
serve as channels for environmental education and information. It will often be important to
work with community-based organizations that focus on issues such as housing, crime,  or
economic development, to identify and address environmental issues as well. For example,
community leaders in a Boston neighborhood brought their concerns about drug-dealing and
other criminal activities occurring on vacant lots to the attention of a local environmental
justice advocacy group  - which led to a coordinated effort to address the problem.
                                                                            000209

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jjiifx
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2. Be responsive to the varying levels of understanding and motivation in different
communities.
Levels of environmental understanding and motivation for action vary widely from community
to community.  EPA and bridging organizations need to respect these differences and develop
Iducational approaches, analysis tools, and information in useful formats, that are appropriate
for differing community needs.
             Many communities are not yet actively dealing with significant environmental issues. In such
             circumstances, EPA can help to build awareness about environmental issues and potential
             solutions by linking environment issues to the communities' other concerns. EPA can provide
             and encourage the use of assessment tools, such as simple mapping techniques, geographic
             information systems, and risk assessment methodologies. EPA can support educational
             initiatives ...

             Communities that are already motivated to tackle their environmental issues may need different
             types of incentives to take constructive action. EPA should support these communities in
             addressing the needs they have identified. Information and tools that will help them analyze
             problems and evaluate options are likely to be most valuable.

             3.  Focus on environmental performance and results.
             As NAPA emphasized in its recent report on the future of environmental protection1,
             environmental management approaches that focus on performance are superior to the more
             prescriptive approaches that are typical of the current regulatory system. Performance-based
             approaches encourage innovation and the development of more cost-effective solutions. In
             supporting communities in their efforts to make sound environmental decisions, EPA should
             focus on community goals and achievements — and should avoid imposing EPA's criteria for
             success on communities.
             Community decision-making involves both knowledge and judgment. EPA can be helpful in
             building knowledge by educating and informing decision-makers, for example by providing
             scientific, econoinic and other information about environmental problems. EPA can also
             provide help with the process and analytical tools that communities can use to determine
             priorities and set clear goals. But decisions about what problems are priorities, and what
             fblutions are appropriate, are made by the community blending information about
             Environmental issues with its values and judgements.

             EPA needs to demonstrate a commitment to helping communities solve the problems of local
             concern.  In fact, EPA needs to acknowledge that sometimes EPA's media-based regulations
             obstruct the achievement of solutions to cross-cutting problems, and EPA should be willing to
             ^ork to find ways to implement needed solutions. In many casesj EPA's media-based
             organization (air, water, waste, toxics) still poses very real difficulties for solving the multi-
               national Academy of Public Administration, Resolving the Paradox of Environmental Protection, 1997.
                                                                                       0002
                                                                                   10

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media problems that communities are struggling with. EPA's regional offices need to develop
strong, cross-media capabilities for facilitating environmental problem-solving in communities.
EPA "field staff, " permanently located in communities where EPA does not have a regional
office, can be useful in this regard.

In some cases, EPA is directly involved in communities, for example in making decisions
about cleaning up hazardous waste sites. In these situations, EPA needs to ensure that the
decision-making process includes meaningful public involvement and is responsive to that
public input. The decision-making process must be transparent to the public and there must be
a commitment to implementing the decisions made in public  processes.

4. Provide information and education that can help communities solve environmental
problems.
As several of the previous recommendations suggest, provision of information and education is
perhaps the most important incentive that EPA can provide to communities to make
responsible environmental decisions. EPA is  making significant strides to improve the
accessibility of the information it collects, but greater effort is needed to make this — and more
— information available to environmental decision makers in communities.

Communities need to know the potential environmental impacts of their actions, the potential
alternatives, and the costs  and benefits of different alternatives. What are the environmental
impacts of continued development of greenfields? What are  the alternatives to that
development? For many communities, developers are the only source of information regarding
the costs and benefits of development. EPA, working with partners, could serve as a source or
clearinghouse of information for local communities on alternatives, and costs  and benefits,
addressing issues such as the relative costs of new infrastructure to support different residential
development densities. Also, EPA could provide accurate cost information on alternatives to
help communities answer  questions like, "Can subsidies for water-conserving appliances
reduce consumption sufficiently so that a community could avoid construction of a new water
or wastewater treatment plant?"

EPA should provide information about the environment in ways that are meaningful to
communities. The definition of "environment" in a community may  differ significantly from
EPA's definitions under the Clean Air Act, Clean Water Act, Superfund, etc.  EPA can support
communities in efforts to  adopt and publicize environmental indicators that measure what is
truly important  to a community. For example, in Seattle, polls have consistently  demonstrated
that citizens are willing to pay for efforts to restore salmon in Puget Sound. Salmon and
related environmental  quality measures are important environmental  indicators for that
community and can be used to inform the.public about progress in protecting  their
environment.

EPA can also provide  tools that help communities make sense of information. For example,
simple mapping or more complex GIS tools can help a community develop a picture of their
                                                                         000211

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 community, including the location of environmentally sensitive areas and potential threats.
 Creating such a picture can help a community develop a sense of priorities and spur action.
5. Develop and use a broad range of incentives appropriate for different community
circumstances.
While providing information that communities can use is critical, by itself, information is
insufficient. EPA needs to develop a range of incentives that can be made available to
communities.  For example:
;;;	         ,;;,;    ;;  	     • ;   .- •           .  •     :'.,,'.' ,.' ; :	;,!' ,. ;  ; ;. :	j     '   '.'.,".,,,'•  ';„ ,: ,  ",
Funding is always at the top of the list for cash-strapped localities struggling to solve
environmental problems. Beyond the state revolving funds for water and wastewater treatment,
arid the Superfund for clean-up of hazardous waste sites,  EPA has very limited funds that can
go directly to communities. Most frequently, EPA has small amounts of funding that can be
used to fund projects in a handful of communities. An important lesson is that even a small
amount of funding is valuable to a community, in so far as it can often be used as seed funding
to garner additional funding from other sources.
f' !     •   , :	!'	 •.  	"   ;;;;,; ;".  •, :  ,,  ":  :   .•'•;•'  • :-.  ' "	;    !;  '[;   , .  .  . "..   . • .
Training is another potential incentive that EPA should emphasize. EPA could sponsor
training targeted to personnel in potential "bridge" organizations on how to support informed
community decision-making on environmental issues.  Such training should be broad-based
and include all stakeholder perspectives.  (In addition to offering training as an incentive to
community organizations, it is important that EPA also train its own staff who deal with
community leaders.  That training should include, among other things, how to identify and help
empower community-based environmental leaders.)

Technical assistance. EPA should focus more of its staff resources on providing assistance to
communities to promote understanding environmental problems and options for solving them.
Such assistance can be particularly important for community-based advocates and concerned
members of the public who are'impacted by agency decision-making, but lack adequate
resources or information to be meaningfully engaged in the decision-making process.
,>	„ ,        , ,	    •                 ,          "   	.,.  •  :,  | "
Dependable partnerships. Once EPA gets involved in a specific community, it needs to remain
a dependable partner throughout the process.

Support networks of change agents. An important outgrowth of EPA's comparative risk
projects has been the development of "peer networks" so that community practitioners can
support one another and share lessons learned.

Flexibility. Allowing communities to identify and solve environmental problems in their own
way can, itself, be an incentive.

An instructive example is provided by the new directions underway in The Nature
Conservancy, a non-profit organization dedicated to the preservation of biodiversity.
                                           10
OQ021.2
                                                                                      	i	I

-------
Traditionally, TNC has focused on buying land to create nature preserves in ecologically
valuable areas. Recently, TNC has recognized that this approach is insufficient - its nature
preserves are affected by what goes on in the surrounding watersheds, and buying entire
watersheds is not a feasible solution.  TNC is now turning to community-based environmental
protection, and is working with communities through strategic planning processes to ensure
environmentally and economically compatible development.

What are the lessons for EPA here? A "command and control" approach is insufficient for
protection of the environment. To complement national programs, a collaborative approach
with communities offers great promise for improving environmental protection. Working as
partners with communities means integrating environmental concerns with local concerns
about economic security and quality of life. And,  reinvention of a large national organization
is possible -- and necessary ~ if we are to realize continued gains in protection of our health
and our natural resources.
                                            11
                                                                            000213

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-------
Appendix L: NEJAC Public Participation
Guidelines             000214

-------
                                     1	!!'!	I
-
                                                   National  Environmental Justice
                                                            Advisory Council	
                                     Dear Colleasues and Friends:

                                         The National Environmental Justice Advisory Council (NEJAC)
                                     considers public participation crucial in ensuring that decisions affecting human
                                     health and the environment embrace environmental justice.  To facilitate such
                                     public participation, the NEJAC requested that its Public Participation and
                                     Accountability Subcommittee develop recommendations for methods
                                     by which EPA can institutionalize public participation in its environmental
                                     programs.  In 1 994, the Public Participation and Accountability
                                     Subcommittee developed the Model  Plan for Public Participation.  The
                                     plan is based on two guiding principles and four critical elements.  The
                                     NEJAC adopted the model plan as a living document to be reviewed
                                     annually and revised as needed.
                                         We are pleased to send you a copy of the Model  Plan for Public
                                     Participation. We also have enclosed -the Core Values for the Practice of
                                     Public Participation  developed by Interact: The Journal of Public Participation
                                     and the Environmental Justice Public Participation Checklist developed by the
                                     Interagency Working Group on Environmental Justice for use by Federal and
                                     State agencies. We invite you to consider the model plan as a  tool that will
                                    'guide the public participation process.  Please share this document with others
                                     who may be  interested in encouraging  broader community participation in the
                                     environmental decision-making process.

                                         Please forward any written comments to:

                                             NEJAC Public Participation and Accountability Subcommittee
                                             c/o U.S.  Environmental Protection Agency
                                             Office of Environmental Justice
                                             401 M Street,  SW (Mail  Code: 2201 A)
                                             Washington, DC 20460
                                             Phone:   (202)564-2515
                                             Hotline:  (800)962-6215
                                             Fax:      (202)501-0740
                                             Internet E-mail: environmental.justice.epa@epamail.epa.gov

                                        Sincerely,
                                        Richard Moore, Chairman
                                        National Environmental Justice
                                        Advisory Council
                                                                                                                          000215
                                                                                                        r VIC1 :4

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• that was established by charter on September 30, 1 993, to pr
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ENVIRONMENTAL JUSTICE


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Recognize community and indigenous knowledge
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Provide effective outreach, education and communications. Findings should be
shared with community members, with an emphasis on being sensitive and
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                                      •Ill   	Ill
I illi'SIM'1" '  !" '
                                                             You are the local government
                                                      You havn juct Hamttad a BrewnfoUt property mat tai
                                                           redevelopment potential. \&tat c*n you do?
                                                                    Qamer Imormuon »Bout the
                                                                      property tar and Invn v»
                                                                           ccrnmunnjr.
                              Figure B-1
                                       II 0» property t> » poME
                                             nuunce.
                                       D» local government can
                                            attocwnta
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                                                                                                                                      I
                                                                                                                               Fsllun to relmbum tor |
                                                                                                                               ttatemem cam m»y
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                                                                    Work witn h* owner ID
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                                                                        ItwDtvvnienl
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      «om
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                                          •(pare nOneDprrmf vfcora vtn tf coromunty, Enture tna commuiny ina PUMC n*»im  I
                                         ccneerm »r» Inhxl to a* railevelopmeni. CorMoer o»rwc zoning toM I Dior »™ "»> con»da«rrt|
                                                         wtniainmuiilly CBne»iTaiiinamg»v»la|iiTiDmchoieTC           	I
                                                                                                        group »nd tulU cDntDima uetig
                                                                                      YES
                                                    n aoOBonnl funding tor the raronveKiprnini • neeaed, look m puMc
                                                     •M piMte Kinfflng nurcn Irthay am avalkpto. Ir nay ir» not
                                                   ivaiaiaa. ox tcoi govemmeni can comBer pmviaina «o">e funaing
                                                  Begin aw conom toon >nts ndewibpfTiinl The bal povBmm.m
                                                   enouU a»:ii   ..• i-'i  <,,,:' i i fll)	ii»;.,.!;. j. ,i;; i:,< !•
                                                                                                                                                            111

-------
                                 You are a member of the
                                           community
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                                            Wlwt can you so?
     Figure B-2
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                                       territorial or Oib3i«rvlror>n«rrttl
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                                                     communfly n»«Bn0e.
                                                    Work Mtth emer •ponconio
                                                                                           communltr-4>eee
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                            You are a private,  nonprofit, or
                                public sector developer wn>
                             pbnt fct iBrowrrTelos projaetrat roy aflwueeraenoor
                                    oowc itiemlxrs ol nejroy communDot •
    Figure B-3
                                                          YES
                                          ColMO InfwmaBon on ftot
                                           community VWilcri local
                                          govxtniMnt •pcncbi Mvo
                                           Juraotnon? VUhrt u in*
                                                                  NO/ia O»«T the community
                                                                     t cnonEi ta Irffluano your
                                                                       joct up front man
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                                       tingle 'Mil IMJ^IO mvoK» mo pubec
                                                                  AM tne local 0oMmn>n!, e\e
                                                                 or evvn tt eomm
                                                                  & WOflC
                                                                   puotc mmng ID o«t»rmhe
                                                                      communrv Irevml
          indbr
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nprennentra. eommmny
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                                                                            LOW
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                                                                                     Irftxmal oommem from t
                                                                                          communiv.
                                                                              UED.
to KMdulo Kfcmorai
cnmmunftf m«Mng«.
                                                                           f IGH
                                                                                     Marx wm oour irpomom
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                                               roouttr m«euno imm Bun •
                                                  o»nnn>l>nt bcatiotv
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                                                  IMMBUBH wci in Inaimci Imwcc in rt« fnjrtt, inch •> Ouck-numara or
                                                                 c«ra about m* vtemt In tht am. TMy we »houB
                                                               tescoroao ah *pfionunKy to pvncpato.
                                                                                                       000242

-------
  Draft Memorandum --''•'"Not For Quotation Or  Citation In  Anv
        MEMORANDUM'ON INTEGRATING ENVmONMENTAL JUSTICE
                      INTO EPA PERMUTING AUTHORITY

                                  Prepared by the
                        Subcommittee on Enforcement of the
                   National Environmental Justice Advisory Council
                                Deeoha Ferris, Chair

       A recurrent issue in tfifr discussions of both the National Environmental Justice Advisory
Council (NEJAC) and its Subcommittee on Enforcement has been the extent to which EPA
possesses the authority to condition on environmental justice grounds permits that the Agency
(and States with federally-apptaved programs) issues to regulated entities pursuant to the various
federal environmental protection laws administered by EPA. A related question is the extent to
which  the permitting authority (state or federal) may  deny a permit altogether solely on
environmental justice ground*,

       The purpose of this inernoraridum is to question the apparent assumption of many that
no such permit conditioning or denial authority exists relating to environmental justice concerns.
The memorandum is concerned exclusively with the issue whether EPA possesses authority that
it has not yet chosen to exercise.  The memorandum does not comprehensively address the
distinct question whether EPA is required under existing statutory provisions to impose such
conditions or deny such permits. Plainly, EPA's statutory authority is broader tfr*n its statutory
obligations.  The Agency possesses wide ranging authority. The question posed is to what extent
may EPA,  in  its discrctiony exercise such authority  in the permitting process to promote
environmental justice concerns.   But, of course,  if one concludes that such discretionary
authority does exist, there wifi inevitably be circumstances in which die failure to exercise such
discretion would amount to abuse of discretion and therefore be unlawful.

       The memorandum is  divided into  four parts.   First, the memorandum describes,  in
general terms,  both  what kinds of factors might be implicated hi the permitting context by
"environmental justice" and the types of conditions  that might be imposed in response to those
concerns.  Second, the memorandum describes and discusses the  four EPA  Environmental
Appeals Boards decisions that have addressed the relevancy to EPA's permitting authority of
environmental justice concerns. Third, the memorandum surveys various federal environmental
laws for statutory and regulatory language that might provide a legal basis for EPA conditioning
permits, or  denying them altogether, on  environmental justice grounds.   Included  in this
discussion is a brief analysis' of certain provisions within each of the laws that readily lend
themselves  to  injecting environmental justice concerns into the  environmental  protection
standards themselves. Presumably, EPA is currently already doing so as part of its overall effort
to comply with the President** executive order. Finally,  there Is a brief conclusion.

                                       Appendix N: NEJAC Paper on Federal
                                        and State Legal Authority
                                                                    000243

-------
raft
                                  ,For  0uotatiorL ...... Or ,.cit:gti,Q? ........  n  Anv,,,Manrlgr
        L     The Mean&tf of "Enrlronmental Justice1' in the EPA Permitting Context
  «;  ;   ;  |   ;;;  ;;=';; ::  ; ;;::;;; ,,;::  ;; ;,'   ;;'•;• ;'. ?   ' '. • ........ ,   ^'''i'"" .....  ;~»: ...... ; i;r:f  :"^- —  '   <   .....
        In the context of an EPA peiniitiing decision,  environmental justice's core expression is
 likely that  EPA should take into account the racial and/or  socioeconomic makeup of the
 community most likely  to be affected adversely by the environmental risks to be created by the
 activity seeking a permit. Notwithstanding the common misapprehension of many, tairing into
 account the makeup of the cbnmumty does not mean that EPA must automatically deny a permit
 sgfely because the  affected: are* is a community of color or a low-income community.  The
 Agency's inquiry into the chaficter of the community — i.e,t whether it is a community of color
'or a low-income community4 ^- is' instead necessary to allow the Agency to make an informed
 perrrutting decision regarding *te ac^ud environmental and health effects of a permit applicant's
.................................................. activity.
       For example, because-EPA knows that certain cc>mrnunities are more likely to be exposed
 to cumulative enviromnenrat^ind health risks from varied sources than are other communities,
 EPA can take that relevant "tier into account in deciding whether, or to what extent, to permit
 additional risks from  the newry-proposed activity.  The bottom line for  EPA's permitting
 decision remains environing nil and health risks. Knowledge of the character of the community
 is necessary  for the permrtrJBg' agency  to apprehend fully what those risks actually are — to
 consider those risks in jggregiitJoxL  Risks that may seem acceptable in isolation may be more
 properly seen as being unacceptably high when the broader social context, including associated
 health and environmental risks, are accounted for in a total aggregation. Hence, one question
 fa whether ERA'S  statutory; authority allows  the permitting authority to consider the true
 cumulative impact of the activity srrHng a permit — in aggregation with other sources of risks -
 - or instead confines the Agency to considering solely the risks of the permitted activity.

       A distinct inquiry concerns- me Agency's authority to take into account  equity  or
 disproportionaliry concerns.' The disproportionaiity issue is plainly related to the unacceptably
 high aggregation (or cumulative impact) issue.   Aggregation is the  fjinrfanwnfai cause  of
 disproportionaiity.   And; in' many circumstances, aggregation and disproportionaiity  occur
 simultaneously - for instance! when atwtnmfag for aggregation makes it possible for the Agency
to ........... realize that one community  is exposed to unacceptably high levels of risk  and' another
corrumiruty is" not.  .....  .....  •
  in in
  in fi>i
         at,
           many, equity is a legitimate consideration, regardless of whether aggregation of
             \'s established environmental or frim«n health  norms for what constitutes
risk violates
acceptable risk.  They would Bke to see EPA deny or condition a permit based on the fact that
the affected community wo^ otherwise be subject to a disproportionate share of environmental
risk.  Proof of dis^rMrtJoisiilxty would be sufficient.  There would be no additional need to
establish that the level of risk-being imposed was otherwise unacceptably high from either a
strictly health or environmental perspective.  In short,  disprpportionality would, by itself, be
presumptively unreasonable or	perhaps 'even per se unreasonable,  absent,  mitigating permit
                '"'Sill
                •' Ifflil
                                                                      000244

-------
 Draft Memorandum •--'•'Not For  Quotation Or Citation  In Anv  Manner

conditions.

       A third aspect of environmental justice of possible relevance to a permitting decision
relates to community enforcement and compliance assurance.  Congress deliberately included
citizen suit enforcement provisions in federal environmental protection laws because of its
awareness that  govemtnest enforcement resources would necessarily be  insufficient (and
unreliable) to establish the credible enforcement threat needed to promote compliance.  One of
the central  teachings of  environmental justice,  however,  is  that  environmental justice
communities have historically jacked the resources needed to monitor polluting facilities in their
neighborhoods for possible: violations and, when found, negotiate their correction, persuade
federal or state enforcement officials to take action, or, if necessary,  to bring a citizen suit
enforcement action against the facility in violation. Promoting community enforcement capacity
is, accordingly, a central goal of the Enforcement Subcommittee. To that end, permit conditions
might be designed to redres* this resource deficiency by providing communities with greater
oversight and enforcement'capacity.  Conditions could range from making monitoring reports
more  readily available  to the community to the  more ambitious .possibility of providing
community access for inspection or even the funding of a community oversight operation.

       These three example* of envatomnental justice considerations relevant to permitting —
accounting for risk aggregation, fet1iti.tti.ng risk disproportionality, and promoting community
enforcement capacity - are merely illustrative. No  doubt there are many other ways in which
environmental justice considerations could be factored into Agency permitting decisions. For the
purpose of this memorandum^ however; the list need not be exhaustive. What this memorandum
seeks  to address is the thresbokl issue whether environmental justice  can in any manner be
relevant to  EPA's exercise of its permitting authority under the various environmental laws.
These three examples offer a- basis for addressing that mreshold issue.  If the answer is in the
affirmative  — permitting  agencies may  deny or condition  permits  on such  grounds —
consideration of the  full reach of environmental justice in the permitting context may then be
ripe.
       n.    USEPA Earircfflinettfjd Appeal! Board Decisions Regarding the Relationship
             of Enriroameatai Justice to EPA Permitting Authority

       Apparently, neither th| fiPA Administrator nor her General Counsel has spoken directly
to the question addressed by" this mgnwrandum  Each has rrnrft^frfr'^ their commitment to
fulfilling the mandates of Executive Order 12898 as well as their overall support for reforming
Agency practices as necessary to  promote  environmental justice concerns.   But neither has
considered the extent to whudj EPA might affirmatively use its permitting authority to promote
environmental justice.  (Or if either has, they have not done so publicly).

       Unfortunately, the issoiehas irsfctd arisen before the Agency only on a case by case bar's
                                                                      000245

-------
  bfaf't  Memorandum  --'Not For  Quotation  Or  Citation 'TIT Any

 and in a  defensive posture--;-"A Regional EPA Office or a  State environmental agency with
 plnnitting authoriry pursuant to a federal environmental law has initially refused to account for
 environmental justice factors m exercising its permitting authority.  Disappointed environmental
 justice advocates have challenged 'those negative determinations before EPA's  Environmental
 Appeals Board.  And,  hi all four cases, the Environmental Appeals Board has rejected the
 appeals andaffirmed the pel mining authority's negative rulings.
 -	;••                     ' • ; *•" ;;;•'; . .•>  	;     ••     "—  :  •••   ; n  •    ' ;, ' | ",
       The disadvantages of: the Agency's  considering the issue only  in  this posture are
 considerable.  First, case by case adjudication does not readily lend itself to the  kind of broad,
 systemic  Agency reforms required for the promotion of environmental justice.  In a more
 adversarial setting, the natural' impulse for most Agency decisionmakers is to deny the existence
 of a legal oSIiga'Bbn — in tfia context, the obligation to consider environmental justice in a
 permitting decision.  There "is also a substantial  risk that in mairi^g that argument, agency
 personnel will  take the furifcer step of denying authority.   Although "authority" and "legal
 q||igatipn" are legally i_distiiit^- concepts,  one can always bum-ess one's denial of the latter by
 extending if to a denial oF the'former.  And, conversely, any admission of "authority" nrek^ it
.harder„to,deny that such authority may,  in some  circumstances, become a "legal obligation"
 based, for example  on a pasty's  claim of abuse of discretion.   There  is reason -to expect,
 therefore, that  the tendency.-, of case  by  case adjudication will be to make  systemic reform
promoting environmental justice more difficult. Overcoming this tendency will require top-down
directives that the Agency wants to exercise its discretionary authority to promote  environmental
justice,'extending11	beyond what the Agency Is legally obligated to do.
    '  A closer look at each-' of the four Environmental Appeals Board decisions underscores
these limits of case by case adjudication.  It also Hfan at how the Agency might, through the
exercise of permitting authority,  exploit currently  untapped avenues  for furthering  the
environmental justice goals of Executive Order 12898.

       A.    In the Matter if Ctoi«xtf* Power Station UmxUd Partnership, PSD Appeal Noa.
             9-1  through S§-7  (September JS,  1993) (Gtnesce 7),  order on motion for
             clarification (October 22, 1993) (Gtneset IT)
 ,,,       ,.   ...    ,,  ,    ,  " ...\:^..''.".-Jv.i   '•-'	-	::' - :	•' ••  , •  :~- !•-	   :
       In this matter, a local eavuDuiueWl justice community organization (the Society, of Afro-
American People) challenged a state, agency's decision to grant a Prevention of Significant
Deterioration (PSD) Permit under the Clean Air Act.  The citizen group contended, inter alia,
that the decision to locate the facility in a predominantly Afro-American community reflected
environmental racism.
In its initial ruling, tbe-~ Appeals Board
liie state agency
                                                                              authority
under the provisions of the 'federal. Clean Air Act the agency was administering to consider
community opposition and>  therefore, its failure to do so, was entirely appropriately and,
therefore, could not be deemed evidence of racially discriminatory intent  The state agency's
                                                                       Q0024&

-------
Draft  Memorandum -^ 'Not  For
                                                    Or Citation In
                                                                             M
 inquiry is properly conflaed:under the federal statute, the Appeals Board stated, to the question
 whether the facility would nseet federal air quality requirements.  A matter such as. community
 opposition, the Board reasoned, would normally be a matter for consideration by a local zoning
 board.                  •

        The Appeals Board ftjtther found that even if the state agency had authority under some
 state law to consider commmiity opposition - and the Appeals Board had authority to review
 the state's compliance wife-Hit state law - the state agency's actions in this cases were not
 discriminatory.   The Board rejected the community group's  claim of disparate impact  which
 was based on the state agency's having denied a permit to  an incinerator  opposed by white
 residents.  The Board found that there were "legitimate, nondiscriminatory reasons" for denying
 the pennit in that other case} jbut not. in the instant case (e.g., local zoning approval had been
 denied, the incinerator's proximity to it wetland would violate the federal Wild and Scenic Rivers
 Act, and the facility would: not comply with state law).  And, while noting that the citizen
 plaintiSs had not proven the; ifete agency's intent to discriminate, as required to make out an
 Equal Protection claim, me Board also specifically declined to reach mat constitutional issue.

       EPA's Office of Geneni Counsel (OGQ responded to the Appeals Board ruling by filing
 a Motion for Clarification, is which OGC requested that the Board revise its reasoning, but not
 the results.  Specifically, OGC challenged the Board's rationale that a state agency (acting as a
 PSD permitting authority under federal delegation)  lacks authority to consider community
 opposition to the proposed facility location so long as this air quality impacts of the facility meet
 federal requirements. Althotigfi the Board responded in a hostile fashion to the OGC's motion -
 - "The Board does not view hs function as that of making  its legal views consistent with those
 of program and  Regional offices * * *  * for the Board was created in part to ensure that  the
 controversies pending before it are decided fairly and impartially " - the Board ultimately agreed
 to excise the portions of the> initial opinion considered objectionable by OGC.   The excised
 portions included the Board' $ statements that the permitting authority lacked authority under
 federal clean air legislation toxxmsider community opposition. The Board reasoned that excision
 was appropriate because these1 were issues of national importance that deserved greater attention,

       The  two  Ctnesee Pdwer  administrative rulings  illustrate  the pitfalls of having
 environmental justice adriresaird, in the first instance, in case by case adjudication.  Both  the
 state agency and EPA - in toe form of the Appeals Board - followed their natural impulse to
 deny the legitimacy of a new claim , here, one promoting environmental justice concerns. Rather
 than look for ways to read statutory authorities expansively, they instead read them narrowly,
presumably in order to insulate agency decisionmaking from secondguessing by outsiders.

       Juxtaposing the two decisions, however, also illustrates the potential for positive reforms
should EPA take the initiative outside the adjudicatory process to read its authorities  more
expansively.  Because the Office of General Counsel in this case took the initiative, the Appeals
Board's modified its reasoning  so aa not  to preclude the Agency  from embracing a  more
                                                                      000247

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  Draft  Memorandum --'Sbf For  Quotation Or Citation  In Anv  Manngr

 proactive approach to environmental: justice in die future.  The challenge the Agency  faces,
 however, is now to fill itje gap currently existing in the law regarding the relevancy of
 environmental justice concertii hi permitting decisions before those gaps are filled in a manner
 unsympathetic to environmental justice by agency employees and state environmental agencies
 interpreting relevant authoritfai in adjadicatory settings.  For, once the government has "dug in"
 to a legal position, it will be to harrier to effectuate needed reforms.
        finally, tnere is one- more lesson to fake away from the Genesee Power case — the
 significance of community-'enforcement  capacity.   The Board concluded that  there were
 "legitimate ~-^|^^^^|^-geasot^» jor wky ^ ^^ ^ ^^ — pennit to be located hi
 the white community but granted the  pennit for the facility to  be located in the African
 American community.  Perhaps so. But perhaps not, if similar violations of state law might
 have been developed had the 'African American community had the legal resources and political
 power necessary to do so.  But, absent such a level playing  field, even what appears to be
 entirely "legitimate nondiscrnaonatory reasons1' may in fact be the product of yet a different lnn4
 ofihequity. 	          	   .               •   "

       B.    In n Chm^Wasti Management of Indiana, flic., RCRA Appeals Nos. 95-2
  ,!=,; ','" In this	matter, local citizens challenged on environmeiflal justice grounds EPA Region'
V^( decision	to	.grant a pennit to.a  landfill pursuant to  Section 3005 of the Resource
CQjiservatipnjind	Recovery Aict. 42 U.S.C. 6925.  The Region held an mfonnational meeting
with  concerned citizens  and  industry  representatives  to  discuss, among other  items.
               ..............
               SSce ...... issues.; ;And, to Region also prepared a demographic study (based on a
one-mUe 'radius around           ..... '' ...................                    ' .......
       The citizens1 challenge included several arguments based explicitly on environmental
justice. The citizens claimed that the Region had acted in a clearly erroneous fashion and bad
abused its discretion in seeking, to implement Executive Order 12898 in the absence of the
Agency's having promulgated a national environmental justice: strategy.  And, they contended
that the demographic study wi* clearly erroneous, because of fa restricted one-mile radius scope
and because the Region had ignored certain evidence regarding the racial and socio-economic
composition of the affected area and" the impacts of the permitted facility.

       The Appeals Board rejected both contentions. The Board concluded, at the outset, that
Executive Order 12898 "does not purport to,  and does  not have the effect  of  changing the
substantive requiremertta  for the issuance of  a permit under RCRA and its  implementing
regulations." The Board further concluded that "if a permit applicant meets the requirements
of RCRA and its implemecting'regulations, the  Agency must issue the permit, regardless of the
racial or socio-economic  composition  of the surrounding community and regardless of the
economic effect of the facility on the surrounding community.1'
                                                                    000248

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  Draft  Memorandum. -- NSC For Quotation Or Citation  In  Anv

       The Appeals Board den sought to temper what  otherwise appeared to be a blanket
rejection of any statutory at^ority to consider environmental justice concerns in the permitting
context.  First, the Board heM that "when a Region has a basis to believe that operation of the
facility may -have a disproportionate impact on a minority or low-income segment of the affected
community, the Region should, as a matter of policy, exercise its discretion to assure early and
ongoing opportunities far po&iic involvement in the permitting process. The Board, therefore,
supported enhancing avenues- for pubHc participation when environmental justice concerns  are
raised.

       The more  significant-part of the opinion, however, is when the Board went beyond
procedural requirements to cassider the possible substantive significance to environmental justice
of the omnibus clause under Section 3003 (c)(3), which provides:
                         * •' " '.
       Each permit issued under this section shall contain such terms and conditions as  the
       Administrator (or th«; State) determines  necessary to protect human health and  the
       environment,

42 U.S. C. 6925(c)(3),  The. Board agreed that this clause requires that the Agency condition,
and if necessary deny altogether, a permit "if the operation of a facility would have an adverse
impact on the health or envixx&snent of the surrounding community * * * as necessary to prevent
such impacts." The Board cdnchided that EPA was permitted imdrr RCRA to take "a more
refined look at its health and environmental impacts assessment" hi response to  environmental
justice claims. And, the Board specifically acknowledged that an ^wrmem that looked only
at a  "broad cross-section of me community * * * might  m»*V the effects  of the facility on a
disparately affected minority "or  low-income segment of  the community:* Accordingly,  the
Board held, "when a commenfrr submits at least a superficially plausible claim  that operation
of the facility will have a disproportionate impact on a minority or low-income segment of  the
affected community, the Region should, as a matter of  policy, exercise its discretion under
Section 3003(c)(3) to include within its health and environmental impacts asseygnrertt an analysis
focusing particularly on the minority or low-income community whose health or environment
is alleged to be threatened by the facility. "
                          •';..'.   f
       Finally, the Board stressed that the omnibus clause of Section 3005(c)(3) could not be
used as a statutory basis for Injecting into the analysis factors other than "ensuring the protection
of the health or environment or low-income populations. "The Region would not have discretion
to redress impacts unrelated or only tenuously related to human health and the environment, such
as disproportionate impacts -on the  economic  well-being of a  minority  or low-income
community. "

       Notwithstanding the  stark terms of the Board's threshold suggestion that "the racial or
socio-economic composition of the  surrounding community"  are irrelevant to a the permitting
authority under RCRA, the Board's opinion leaves substantial room for EPA to exercise its
                                                                        000249

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  Draft Memorandum -"-Not For  Quotation  Or  Citation' In Anv  Manng-r

authority to promote environmental justice in exercising its permitting authority ^TVJCT RCRA.
It allows for the Agency to engage  in  the idol  of risk aggregation  analysis upon which
environmental justice claims ire frequently bottomed.  This includes both a closer examination
of ^ CIjLmujatjve impacts of various risk producing facilities affecting community as well as the
possibility  that certain  subpopolations may be  especially  susceptible  to being harmed by
environmental' pollutants. Tip Board also suggested a potentially low threshold trigger
preparation of such analysis:' "a superficially plausible claim  * * * [of] disproportionate
on a minority or low-income "segment of the affected community."
                                                                                  for the
                                                                                  impact
         Perhaps even more significantly, the Board ***mn to have ruled mat permit conditions
  or denials need not depend orf the showing of a violation of some pre-established environmental
  standard.  The Board opinion; provides that EPA has authority to condition a permit whenever
  ^L IBM I1! ' I1 ",! 5 ' ....... li!i,i;,!,i'':i'i!|!:, lln'l ..... MINI'! liiBI'l1 1 1 ....... i!l",,:,i,t 'h1 ,A ........ i ..... ,i, , • ,•„ ft ..... .,,1.111-   [[[ s, [[[  i»
   the operation of a  faculty would have an adverse impact on the health or environment of the
  surrounding community * * *'as necessary to prevent such impacts. " The Board does not matra
  clear  what it means by "an; Adverse impact"  and how it intends to square this  aspect of its
  opinion with its initial admozxishmeoi that "if a permit applicant meets  the requirements of
  RCRA and  its implementing regulations, the Agency must issue  the permit."  Presumably,
  though, they are reconciled b? the Administrator being given discretion in Section 30Q5(c)(3)'s
  omnibus provision to determine what constitutes an adverse impact warranting  a condition (or
  possibly a permit denial).' Tie' Board, therefore, does not deny the Administrator authority in
  RCRA permitting to take, account of the socio-economic or racial composition of a community
  so long as she does so onfy in the first instance as a reason to  take a closer look at the human
  health aiid environinenial effects of tfae facility seeking a permit. The final permit condition or
  denial must rest on those human health' and environmental effects and not simply on the socio-
  economic or racial composition of the community.
                             .".                                       !
         C.     In rr Puerto Rico Electric Power Authority, PSD Appeal No. 95-2 (Dec. 11,
                1995)
                                     .   "                            i
         In this  matter, a citizen -group in Puerto Rico sought review of Region ITs issuance of
  a Prevention of Significant deterioration (PSD) permit to the Puerto Rico Electric Power
  Authority (PREPA). The group claimed, among  other things, diat PREPA and Puerto Rico
  should have prepared an epidemiologies! study of the area surrounding the proposed facility and
  that their  failure to do  so violated Executive Order 12898 and the federal Constitution. The
  Board rejected the claim, relying on Region ITs explanation that it had fully responded to
  environmental justice issues raised during the comment period, including the  preparation of
  demographic analysis of the affected area. The Region had concluded mat the facility "would
  cause no (proportionate- adverse health impacts to lower-income populations.  Finally, the
  Bgar4 likewise rejected die citizen group's contentions that the Region had relied on flawed
  meteorological data and had tailed adequately to consider PREPA "history of violations" in the
  past .............       '   '•
                                                                         000250
a	•	i; JtM.Mi	.a	liliilllill...
              	ilii!

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 Draft Memorandum  --  Not  For Quotation Or Citation In  Anv Manner

       The precedential signiRi ance of this decision is fairly limited because the citizen group's
petition for review appears td; have been too cursory (two-pages) to be persuasive. The matter
is  nonetheless significant because it underscores both the ifrnfofi resources available to most
community-based enviroiauerital justice organizations and the importance of EPA's taking a more
proactive view  of its affirmative  ability to promote environmental justice  in the permitting
context. .It is no great surprise that where, as in this case, the EPA Regional  Office declines to
actively pursue the environtnetctal justice concerns of an affected community, the Appeals Board
will almost always affirm tnajrruling.  Unless the local community group has managed to obtain
substantial legal expertise arid resources, they are unlikely to be able to articulate their concerns
in a manner likely to prompt the Appeals Board to second guess the Region. As stressed by the
Appeals Board in this matter, .the Board will not grant a petition for review "unless to decision
is based on either a clearly erroneous  finding of fact or conclusion of law, or involves an
important matter of policy or exercise of discretion that warrants review."

       Effective promotion &. environmental justice will  instead turn mostly on a Region's
willingness to respond to a lodd community group's concerns by exercising its discretion to take
the initiative to become closely engaged with those in the community. Where, as in this matter,
the issue becomes what the Agency is required to do, those promoting environmental justice will
most often lose. And, as here, one cannot really know wherein lie the merits of the  group's
claim.  Because, without EPA's active and affirmative support, citizen groups were unlikely to
be able to make the case necessary to overturn EPA, once the Agency had initially decided to
grant PREPA the PSD permit-

       D.    In re EnvottcX. L.P.,  UIC Appeals Nos. 95-2 through 95-37 (February 15,
             1996)

       In this matter, local  residents and nearby municipalities challenged  EPA-Xegion Vs
decision to grant two Underground Injection Control (UIC) permits under the Safe Drinking
Water Act. The permits autficttize the permittee^ Envotech, to drill, construct, test, and operate
two hazardous waste injection-'wells in Washtenaw County, Michigan.   The local opposition
raised many contentions, jreftiriing the permittee's poor history of environmental compliance,
the unsafe- and unproven nature of underground injection, the absence of necessary, state and
local governmental approvals, flawed geological assessments, errors in characterizations of the
hazardous  wastes  to be received by  the facility,  and  failure  to provide required waste
minimization certification. The residents also raised distinct environmental justice claims.

       The Appeals Board rejected afl the claims except for the claim that a waste minimisation
certification is  required.   TSe  Board specifically denied the  contention of a  community
organizations opposed to the facility, Michigan Citizens Against Toxic Substances, that local
opposition provides a basis for UIC permit denial;  The Board reasoned that "local opposition
alone is simply not a factor that the Region may consider in its permit decision" and that "[m]ore
fundamental issues, such as siring of the wells, are a matter of state or local jurisdiction rather
                                                                        000251

-------
                       FWi 1!

                       I'lili'
         ..... Memorandum ....... --:',Ngt ..... For Quotation Or Citation 'in
                                                                                  An

Iff .
Uii i'

!!!,*.•
IS'1
            than a legitimate inquiry for _EPA. "

             =;; - , .,;The ...... Board ...... ^w ;rejec^^oppositipn to .the permit that was based on the past
            (or lack thereof) with environmental requirements of companies affiliated with the     _
            lie Board concluded that ,.aa& a „„ concern "simply does not present a link to a conditioii of (lie
            UIC permits  at issue here :' sufficient to invoke the Board's authority to review the permit
            ,c-:..:__ "  """ ""^ -^^ found no basis for relief in any of the eavironmental justice
 decision,"  The Board
 claims, which rbcussed on the fact that the area surrounding the facility was already host to
 numerous burdensome land uses.

       The Appeals Board, however, used the matter as another opportunity to state its views
 OH the significance of environmental justice in the permitting context. Citing to its earlier ruling
            Waste Mana^ern&tfln&cma (CWM), previously discussed, the Board stated that,
              'tTing''undfer Section 3005, "if a UIC permit applicant meets the requirements
                 Wc rcgu&Sons, ti» "'Agency must issue .the permit, regardless of the racial
           rumc composition of the surrounding community and regardless of the economic
                   on to a*10"11                 (citing CWM. at 9). But, as in CWM. the
            a  with
           of
Board ...... went onto ..... identify _ "two- areas in the UIC permitting scheme in which the Region has the
'necessary ..... discretion to implement the mandates of ""the "Executive Order."
  til! I"!' I'1;1 ,ii '"''!«•,! "i* ,'' ,'!'•' il,,, II,,  ..... :,!!,! "!,„"'!'"  '  !"••, '"',,. :,
-------
  Draft Mpmnrandnm  — "Not  For Quotation  Or  Citation In Anv Manner

       The Appeals Board'* rOEng is positive for environmental justice advocates to the extent
that it demonstrates the Bofccd's willingness  to find that the Agency can base discretionary
authority to promote envkonfflental justice in its regulations and, therefore, presumably need not
rely on statutory language iff me first: instance. In CW3f, the omnibus authority was contained
in statutory language.  Second, the omnibus language upon which the Board relied on in
Envotech was less obviottsiy:exparafoe frmn that construed in CWM (Section 3005(c)(3) of
RCRA).  The Board's willingness to find such broad based authority In the regulatory language
^necessary to prevent migration, of fluids" increases the possibility that similar omnibus authority
can be found in other environmental statutes and regulations. As footnoted by the Board, the
Board has already indicated' mat "necessary" could "arguably extend to imposition of more-
stringcni financial responsibility requirements than are generally prescribed for UIC permittees. "
If  so,  "necessary"  might .likewise: 'extend to mores  stringent  monitoring  and reporting
requirements,  or even  «mh'«*-eiiienf of community  enforcement capacity, for those facilities
located where there is reason to bdieve mat absent such a condition, there will not be the kind
of oversight necessary for
       The more sobering assessment of the Board's qpinion in Envotech is its reiteration that
 EPA* a exercise of expansive pjermit authority to promote environmental justice will most likely
 occur only if the Agency take* the initiative.  As in Envotech (and CWM), neither the Appeals
 Board or a reviewing court frvery likely to order EPA to take such action (either by denying
 or conditioning a permit). .The' Board's decision not to do so here is entirely consistent with its
 repeated characterization of BPA's authority as "discretionary" and the narrow scope of the
 Board's review of a Region^ p^mittmg determination. Hence, the challenge EPA now faces
 is to persuade the Regions tad delegated state permitting authorities to seize and exploit the
 discretionary authority that the Board has now made clear they possess to fulfill Executive Order
 12898's mandates.

        m.   Surrey of Fo&iral ferironmental Statutory Prorisions Authorizing Permit
              Conditions orTJeniali Based On Enyu-onmentsd Justice Considerations

        The history of environmental law is replete witii example* of instances in which broadly
 worded statutory language or adulations have been successfully enlisted in support of arguments
 that EPA has authority  beyond mat  initially  contemplated by  the regulated  entities,
 environmentalists,  affected comnronities, or even the  Agency itself.   The Refuse Act's
 restrictions on water pollution; NEPA's strict procedural requirements, the Clean Air Act's PSD
 program,  and, more recently. Section 401 of the Clean Water Act, are all very much products
 of such innovative and expansive interpretations of existing statutory language.

        The issue now before rie Agency is whether existing statutory and regulatory language
 can similarly be resurrected on behalf of environmental justice.  Notwithstanding their generally
 rigid  outlook, the Appeals Board opinions discussed above set forth two possibilities:   the
 omnibus clause contained in Section  3005(c)(3) of RCRA,  discussed in CWM of Indiana, and
                                          11
                                                                        000253

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1 lu-
                                                                                                ll II I Illllll
  Draft|Memorandum -'/Not  For	Quotation  Or  Citation In Any Marrney

 the  pnmibus  clause  contained  in  the Safe Drinking  Water Act regulation, 40  C.F.R.
 144.52(a)(9),  discussed in. the Env&tech.  What this portion of this  memorandum seeks  to
 accomplish is to examine the-'statutory language of each of the several environmental protection
 laws, one statute at a time,, in an effort to identify other clauses that might similarly support
 expansive understandings of EPA's authority to promote environmental justice through permit
 conditions and denials. This; review does not purport to be exhaustive of all possibilities.  The
 hope is uiisteaZ'tnat this nkaibraiidum. may serve as a catalyst to prompt others, eapecially.those
 farp more familiar nwith the stBstt^l^aad"regulato'ry iifliicacies of the various programs, to find
 other examples as well.     '	"'  ' ""	

       A.     Clean Air Adf

       Within the Clean Air/Act, mtrie are plainly many opportunities to infuse environmental
justice concerns more into the'Act's substantive standards »han the Agency has historically done.
 For instance,, determination of National Ambient Air Quality Standards (NAAQS) under Section
 109  are supposed to be based on subpopuiations that are especially sensitive to the adverse
 effects of pollutants. 42 U.S.d. 7409-. see Lead Industries Assoc. v. EPA 647 F.2d 1130 (D.C.
 Cir.  1980).  Looking more ta me subpopuiations having me diaracteristics of those residing in
 low-income communities airf comratniities of color,  which often  have the  most sensitive
subpopuiations,  would make those  air pollution control  standards  more responsive to the
teachings of environmental justice. Air quality criteria, upon which the NAAQS are based are
supposed to include mjbronrfon on  "those variable factors * '"* * which'pf tnemselves or in
combination with other factors may alter the effects on public health or welfare.' 42 U.S.C.
74J|8, ,'Xfrese	*v|riablf factotj",,should, likely include many of the kmds of characteristics of
environmental Justice communities that render the harmful effects of pollutants on those already
environmentally stressful ccmOninitia even more harmful.
                                   *r;,y™yirmrggt, provisions also  offer several opportunities.  An
          , explicit objective of the Subdiapter D' s Nonattainment Program' is "to assure 'that'" any "decision
          to permit increased air pollution in any area to which this section applies is mi4g only after
          careful	evaluation	of	all the consequences of such a decision and after adequate procedural
          opportunities jar i^m^^                                              42 U.S.C. 7470.
          Prior to any rcdesignation of any noniaainznent area, there mutt be notice and a public hearing
          in the areas proposed to be redeiignated. And, prior to that bearing, "a satisfactory description
          and analysis of the health, envgoumental, economic, social, and energy effects of the proposed
          redesignation shall be prepared." Id. Environmental justice  concerns naturally fall within the
          legitimate scope of such analysis.  Sanctions for failure to meet nonattainment requirements
          .would likewise seem to offer- a basis for redressing environmental-justice concerns.   Such
          sanctions extend to "such addjfional measures as the Administrator may reasonably prescribe,"
          which seems sufficiently open-ended to extend to environmental justice concerns in appropriate
          circumstances. 42 U.S.C. 75Q9(dX2).
                   :;!,",  .;i	,  Ufa
                   ;;  '!|i  I'	i.
                       i Si  ; it,
                                                   12
                                                                                 000254

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 flraffc MemoranflW  --'^ot  For  Quotation  Or  Citation In Anv Manner

       Another example  of a  Clean Air Act provision  potentially allowing for greater
importation of envirormena£jttstice's concern with risk aggregation ^ the waiver provision for
innovative technological systems of continuous emission reduction applicable to Section Ill's
new source performance standards.  A condition for determining whether an applied for a
waiver from certain requirements otherwise applicable to a person proposing to own or operate
& new source is "demonstm{$cin] to tfee satisfaction of the Administrator that the propose system
will not cause or contribute t#~unr#ua*able risk to public health. " 42 U.S. C. 7411j(l)(A)(iii).
The statutory rmphn«"« on.pcifcKc **•***» and inclusion of "contribute to" would seem to permit
the Administrator to take mm account the cumulative public health impact of the facility on the
affected community.

       EPA's enforcement anmority under the Clean Air Act likewise allows the Agency to take
account of environmental justice in allocating its enforcement resources.  EPA's decision to
maintain a civil or criminal1 ' enforcement action is generally a matter of administrative agency
discretion to exercise as the Adniinisirator deems  "appropriate."  There is reason to believe that
historically federal and state enforcement of environmental protection laws has not occurred at
a  level  commensurate  witnt the environmental risks presented  in environmental justice
communities.  Under the statute, EPA has the discretion to reallocate its enforcement resources
in a manner that more  sctT^y promotes those communities for government oversight and
enforcement.

       Even more specifically- the Clean Air Act's penalty assessment criteria, would seem to
allow the Ao^ninistrator to take account of the special need for a credible enforcement threat in
those communities that have :flbt generally 'benefited from enforcement in the past. Section 113
provides that "in determining tfifc amount of any penalty to be assessed, " the Administrator shall
take into consideration several' specific factors and 'such other factors as justice may require. "
42 U S C  7413.  The Adnmtistrator could deem environmental justice concern with the absence
of. government enforcement ni the past and the lack of community resources to oversee a
facility's compliance as cause of enhanced penalties for violations in certain communities.

       For the purposes of tn^-mern6riffldum, the Clean Air Act provisions of greatest interests
are  those  that may allow  the- permitting  authority greater discretion to take  into account
environmental justice concern* IB the permitting process, including use of the permitting process
to build community enforcement capacity. Section 50* would seem to confer onEPA just such
authority.  Subsection(a)pro>icMthat-[e}achpe^
 * *  * such other conditions a* are necessary to assure compliance with applicable requirements
of this chapter.'  A major component for achieving compliance assurance under the Clean Air
 Act is the citizen suit component of that statute.  For, absent a credible enforcement tfceat, there
 will be no compliance assuniee. Subsection (a), therefore, would seem to authorize EPA to
 impose as a condition on those receiYing Clean  Air Act permits that they take certain steps in
 order to enhance the affected community's ability to ensure the permitted facility s compliance
 with applicable environmental protection laws. Steps could range from simply providing more
                                          13
                                                                    000255

-------
Draft  Memorandum  -'-•'. Sot  For Ouotatio^ Qr
                                                                        Anv Manne-r
 ready access to the information necessary to oversee the permitted facility's operation arid
 compliance to even perhaps'; working to enhance the resources of a citizen group charged with
 overseeing  environmental  enforcement and compliance assurance.    To tfm» -Mm<»  effect,
 subsection  (b)  authorizes :me  Administrator  to  prescribe  "procedures  and  methods for
 determining compliance" and' subjection (c) requires that each permit "set forth inspection, entry,
 monitoring, compliance certification, and reporting requirements to assurance compliance."
 EPA could  make the enhancement 'of community enforcement capacity an explicit objective of
 Uie requirements that the Agency establishes pursuant to these subsections.

       Finally,  Section 128 of  the: Act, 42 U.S.C. 7428, provides the Administrator with
 authority to ensure That state permitting boards and pollution control enforcement authorities arc
 more likely  to take environmental justice concerns into account. Section 128 mandate that state
 implementation plans require: thai "any board or body which approves permits or enforcement
 orders under this ...... chapter shall have ...... at least a majority of members who represent the  public
 interest"* * *".'""  "The «puj^li'j1^,i»lli^ai3!^n| Cfmi^ ....... iflow" the  Adrnmistrator to require that
persons with concerns about etrvironraenial justice and/or representative of those cornmunities
be included on state boards brbodiw with permitting or enforcement authority.

  B.   Clean Water Act
             '» ......       . ..... ' .^ • '   ' •     • '    ••     • • ;  •    •;•'•• A .'   .'"•!:-„  : .    .  .>.•.'."
  m          , |   (,      . - rumr*  f that water
quality "in" a ...... sp^ffic'rwrrioir'af ; the-" navigable waters which"" shall ......... assure' " protection" of ...... public
health, public water supplies * * *.•"'  Although the Agency has historically been wary of
invoking Section 302, the provision does provide EPA  with some statutory authority beyond
technology-based controls to address environmental justice copcerns related to public health,
public water supplies, and otBcr ...... water"' 'quality objectives'. ....... Tie Admimfflnator also "'possesses'
sunilarly-worded statutory asrmority  in developing  individual control strategies for toxic
pollutants under Section 3040fr)(AX5).
  ..............  ,  The ,CJeaa;; ..... Water, ,,, AM ..... alsq 'confers  authority  on  the  Administrator  to  promote
environmental justice m imposing monitoring and reporting requirements on  owners and
operators of point sources. In order to assist the Administrator in developing pollution control
effluent limitation or standard or in determining whether there has. been a violation of a
limitation or  standard, Section 308 authorizes the Administrator to require point sources to
rrijinqin records, make reports, use monitoring equipment, sample effluent, and "provide such
other information as he may reasonably require."  33 U.S.C. 1318(a).  It rurther provides that
the Administrator "or his authorized repiesentative' shall have right to reasonable access and
inspection." Here, too,  the A^miinisttttor could invoke these authorities creatively to promote
                                          14
                                                                                        I ,	I  Si!
                                                                         000256

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 Draft Mfttnnyandum  --'Not For Quotation Or Citation  In Any Marmer

community enforcement capacity.  Monitoring reports and general compliance information could
be  directed to community  groups in the first instance, obviating  the  need to travel  ?o
inconvenient locations.  In ayttt'-opriatg circnTn stances. a local community organizatiea jaif !if. ?lss
become an "authorized representative" of the Administrator, which would allow the orgsafeidem
a right of entry and inspection.

       In addition to  provfcSBig EF& with discretionary authority to target its resources  in
enforcing the Clean Watet Ait in a manner more  responsive to the needs of environmental
justice communities, the Cleia: Water Act also permits administrative and civil penalties to take
into account environmental Justice concerns, perhaps as a reason for increasing the fine (in order
to ensure compliance in an srea long subject to aoncompliance).  Section 309(d) provides that
civil penalties may be calculated based'On several factors including "such other marten as justice
may require" and subsection Qj), regarding administrative penalties, includes identical language.
33  U.S.C.  1319(d), (g).   T&e use of "justice"  in  this context confers on EPA considerable
discretionary  authority beyoefd that provided in those instances where the  exclusive statutory
touchstone  is  "health  and tbff enyirocmenL "  Environmental justice's distinct concern with
disproportionality and equity ieasiry rails within the  "justice" rubric.

       Section 402 of the Act/' Kowevet, is- likely the most significant potential source of permit
conditioning authority. SectsenV4d2 provides that the Administrator may issue a permit for the
discharge of any pollutant

       upon condition that s&K discharge will meet either (A) all applicable requirements under
       sections 301. 302,  306, 307, 308,  and 403  of thia title, or (B) prior to the taking of
       necessary implementajg! actions relating to all such requirements, such conditions as the
       Administrator determines are necessary to cany out the provisions of this chapter. "

42 U.S.C. 1342(a)(l).  Clauie (B) would seem to  confer on the Administrator wide ranging
authority to  impose  permit ''coaJMbtts promoting environmental justice.   There are two
limitations: (1) the authority exists only prior to taking of certain implementing actions;  and (2)
the conditions must carry oiitthe provisions of this Act.   But,  both  could be met.  The
Administrator has most certaiaiy  not taken all implemeating actions under several provisions,
including, for instance, Sectipa 302 discussed above. And, because the purpose of the condition
would be to protect public heafth,  public water supplies, promote compliance assurance,  and the
like, it should not  be difficult to fashion permit conditions, that both promote environmental
justice', including coinmunrty enfoTcement capacity, risk aggregation, and  that "carry  out the
provisions of this chapter."

        C.  Resource Conaenittoa aicril Recoverf Act
        The Resources Conservation and Recovery Act (RCRA) includes many provisions the
 broad wording of which leaves EPA with substantial authority to take environmental justice
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           in ii       li 1  i in i      '         ,i .  ,  ,  i'  i  - •    I        i
           Draft Memorandum  -- Not  For Quotation  Qr  gj,Cation In Anv Mannffr
                                                                    1111 	
          concerns into aracnmt in the Agency's implementation of this law,  The touchstone for the
          Agency's promulgation underRCRA of regulations applicable to generaiozs, transporters, and
          owners and operators of hasaitdous waste treatment, storage, and disposal facilities is the same:
          "as may be. necessary to protect human health and the environment"  42 U.S.C.  3002(a)]
          3003(a),  3004(a).   Because;  as  discussed in Part I above, oik; of  the major lessons of
          environmental justice is that EPA's past failure to account for the effects of aggregation of risks
          'arM cumulative impacts has caused EPA's existing standards not to protective of human health >
          and,.dig	^environment"  in	certain	cc?nmunities, EPA's authority under RCRA to correct this'
          problem cannot be gainsaid. The relevant statutory language specifically directs the Agency to
          do what it can only do by  considering the actual  human health and environmental effects of
          managing hazardous waste on disparately affected low-income communities or communities of
          color.  	       '                           	      . ,.|.  .     ..

                Section 3004 of RCHA, which applies to owners and operators of hazardous waste
          treatment, storage, and disposal 'facilities," further" elaborates' on the kinds'of .standards that EPA
          j^y promulgate.  Several have significant implications for environmental justice. For insfoTV-g
          Section 3QQ4(a) provides that EPA standards *h«n include requirements respecting:

                (2)  satisfactory reporting, monitoring, and inspection * * *;

                (4)  the location, design, and construction of such hazardous waste treatment, disposal,
                or storage facilities;

                (5)  contingency plan* for effective action to minimi^ unanticipated damage * * *;
                (6)   the maintenance- of operation, of such facilities and requiring such additional
                qualifications as to ownership, * * *  training for personnel  as may be necessary or
           	-	desirable*	*'"*.  	'' "                 "' '	"

         EPA could fashion  "reporting-, monitoring, and inspection' requirements in a manner more
         responsive  to  the needs of  environmental justice communities, which tend  to have  fewer
         "n^aS^tb'ra|ip mefftacdHre	owjmgWbf a'rqj^^                                      '"
         performance standards. EPA'is authorized to impose requirements relating to the "location" of
         facilities, which would  seem to permit the.  Agency at the very least  to  arrrnmt  for risk
         aggregation in the siting of such facilities.  The reference to "contingency plans" would yym
         to allow EPA to require contingency plans that reflect the aeeds of environmental justice
         communities that, because of their own limited resources, may require the owner and operator
         to invest more of its own resources into the community to develop and implement such plans.
         Finally, EPA could  consider  the socio-economic, racial, and ethnic makeup of a community in
         promulgating requirement regarding * qualifications of ownership" and' "training for personnel."
         A major problem in the past has been- the lack of adequate training 'in bridging the gap between
         the community and a regulated facility located within that community.  Special training may be
                                                  16
                                                                               000258
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Draft
                        --'Not For  Quotation  Or  Citation In Anv  Manner
needed for personnel operating facilities within communities, including, quite possibly, the hiring
of more individuals who are themselves residents of the affected community.

       EPA- also possesses Under RCRA the authority to target its enforcement resources in a
manner more responsive to the'' needs of environmental justice communities. RCRA is different
from the Clean Air Act and Clean Water Act because it does not similarly include an express
provision that the  penalty nay  be based on "justice," but the Administrator is instructed to
account for the "seriousness of the violation" in caigutaring the  appropriate penalty  in a
compliance order.  In marry .circumstances, environmental justice concerns could relate to the
"seriousness" of a partial hnr :Vioiation:

       EPA's inspection authority is likewise susceptible to being implemented in a manner more
responsive to environmental justice.  EPA has inspection authority, but so too does a "duly
designated * * * representatirc" of the Agency.  42 U.S.C. 6927(a). Records, reports, or other
information obtained by EPi*E pursuant to its inspection authority is also supposed to be marlis
publicly available.  42 U.S.C 6927(fc).   EPA could strive to ensure that such information is
meaningfully available to those-who- reside in communities who might otherwise not have ready
access to documents that are •'available" only in name. EPA is also authorized to "distinguish
between classes and categories- of facilities commensurate with the risks posed by each class or
category"  in ensuring thcrbegfa  and adequate inspection of regulated facilities.  42 U.S.C.
3007(e)(l).  Arguably, one class or category of facilities warranting special attention are those
located in environmental justice communities.

       With regard to permit conditions, EPA has considerable authority to take environmental
justice concerns into account in its permitting decisions  by considering the possibility  that a
particular community is being? subject to  disparate environmental risks.  As described by die
Environmental Appeals Board in CtiM cf Indiana, Section-3005(c)(3) provides that "[ejach
permit issued under this section shall contain such terms and conditions as the Administrator (or
the State) determines necessary to protect human health and the environment."  42 U.S.C.
6925(c)(3).   As in Sections 3002, 3003, and 3004,  already discussed, this language  in the
permitting provision perrmlJr the Agency to "takjej  a more refined look at its health and
environmental impacts assetninent in light of allegations that operation of the facility would have
a disproportionately adverse.effect on the health or erwiromnennd of low-income or minority
populations."  Such a closer exarnination could justify permit conditions (or presumably denials)
based on adverse  effects  oi a  disparatery affected cornmunity that would  otherwise  be
"mask[ed]"  if the  regulator undertook only an  "analysis of  a broad cross-section of the
community."

       Permit conditions coufif; 'however, be more far ringing.  Protection of human health and
the environmental turns on cotnpliance  assurance and permit conditions  might, accordingly,
extend to  those needed to promote community enforcement capacity.  As previously discussed,
such enforcement capacity S essential  to  the statute's  accompiishmcnts of its objectives,
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  Draft Memorandum -~- Not  ?or Quotation  Or  Citation In Any

 especially in low-income communities and communities of color that, lacking that capacity in
 the past, have been the i epeitted victims of environmental noncompliance.

        Finally, one other RCRA provision worthy of special mention is Section 4002, which
 governs "the  federal guideSaes  for  state solid waste management  plans.   Among  the
 considerations relevant to tife promulgation of those guidelines are "the political, economic * *
 * problems affecting compn&ensive solid waste management.'' 42 U.S.C. 6942(c)(9).  There
 are many disagreements regtitfiag the fnenm'ng and portent of claims of environmental injustice.
 There can be little dispute, :' However; mat environmental justice presents a major "political * *
 * problemO affecting solid -waste management."
                          • ',                                      |
       D.    Safe Drinkfef Wato Act
                        .:;... •  :;  ,       • ,      ,    .;:,: v.l  ,"",   :          : ...... i
       The Safe Drinking Water Act includes mwh of the same fcin*fc of opportunities already
 mentioned in the context of theClean Air Act, Clean Water Act, and the Resource Conservation.
 and Recovery Act.   The- Administrator retains  the usual  significant discretion to  target
 enforcement based on environmental- justice factors and civil penalties are assessed based on
 several factors including J'such other matters as justice may require." 42 U.S.C. 300h-2.

       In some respects, titoagfe, the Safe Drinking Water Act may be especially susceptible to
 infusion of environmental justice concerns because of the statute's broad wording.  For instant^
 the Act directs the Administrator, in promulgating national primary drinking water regulations
 to consider several specific factors, but then also "other factors relevant to protection of health. "
 42 U.S.C. 300g-l(b)(7)(C)(i>* The kinds of risk aggregation and cumulative impacts disparateiy
 affecting environmental, justice communities  would wm to  be  such a relevant factor.   In
 addition, in establishing the list of conQuninam level goals, the Administrator forms an advisory
 working group that must include members from several specified  offices  (e.g..  Office of
 Drinking Witer^  Pesru&La^Toxic  Substances)  "and any  others the  Administrator deems
 appropriate." 4i"U.8.'Cl 30tjfM(bX3)(B).  In light of Executive  Order  12898,  the. Office of
 Environmental Justice could jflbw easily be considered another "appropriate" office  for this
 advisory working group.     ""                                               •

       Likewise, although tn8':Act permits a State with primary enforcement to grant variances
in certain circumstances, die statute farther provides that any such variance "shall be conditioned
on such monitoring and other requirements as the Administrator may prescribe." Here,  too, the
Administrator could strive to- fashion  conditions that reflect tin; kinds of risks of noncompliance
      espagi'aiTy by many gnvlirfmrngrrfal justice cqmmuqfriea.
       Finally, although this- memorandum does not purport to undertake an exhaustive review
(let alone an^ ^_ mcaning^^rffvicw) of Agency regulations in search of those providing the Agency
with open-ended, authority relevant to environmental justice, the Appeals Board has already
identified one such regulation implementing the Safe Drinking Water Act.  In Envotech, the
                                         18
                                                                  )00260
              	 tlliilllilill	i.l.	iiiilL	I	,: 1.11	.diillin i,ii,i	

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Draft  Memorandum --  Not For  Quotation
                                                       Citation In Any
Board ruled that EPA possesses substantial discretionary authority deriving from "regulatory
'omnibus authority' containe4 in 40 C.F.R.  144.52(a)(9).  As described by the Board, that
regulation  "authorizes  permit conditions  'necessary to  prevent migration of  fluids into
underground source of drinking water."  The Board reasoned that "there is nothing in the
omnibus authority that prevents a Region from performing a disparate impacts analysis when
there is an  allegation that the drinking water  of minority or low-income communities may be
particularly threatened by a proposed underground injection well. "
       E.
           Toxic Sobstaacei Control Act
      The Toxic Substances : Control Act (TSCA) is one of the few environmental laws to
include  an explicit  envirotsnfental justice program, albeit  of  a quite limited scope.   The
provisions dealing with f*y*i*>tfo* and grant assistance to the States for radon programs expressly
target "homes of low-income i 'person*" for such assistance.  15 U.S.C. 2665(a)(6), 2666"(i)(2).
Although the assistance provisions of the other laws do not include such a mandate, they do not
preclude such a preference and, based on the Executive Order,  EPA plainly has the authority
to provide it.

      Like the other environmental laws,  TSCA's substantive standards  are responsive to
environmental justice. Environmental justice is implicated in testing and data gathering under
TSCA.  TSCA also looks to "camulatlve"  and "synergistic effects" in determining the regulatory
border between reasonable and "unreasonable  risk to health or the environment"  (15 U.S.C.
2603(a), (b)(2)(A)), which are precisely  those effects that environmental justice teaches have
been too often overlooked in considering  risks  imposed on low-income  cornrnunities and
communities of color.
     Finally, TSCA is
                                because Congress instructed the Administrator to "carry out
the law by considering  the  "environmental,  economic and social impact of any action the-
Administrator takes * * *." 15 U.S.C.2601(c). Hence, wholly apart from the Executive Order,
the EPA possesses wide ranging authority in implementing TSCA to consider environmental
justice concerns in fashioning 'and enforcing the Act's- requirements.
                               f
       F.    Federal Insecticide,  Ftmgkide, and Rodentidde Act

       The Federal Insecticide. Fungicide, and Rodenticide Act confers substantial authority on
the Administrator to address  environmental justice concerns. EPA's principal responsibility in
administering FIFRA is  in its registration of pesticides 63 guard against "unreasonable (adverse
effects on the environment."  7 U.S.C. 136a.  Environmental justice is concerned with FIFRA's
administration for many  reason*, but one major reason is because of the substantial threat to the
health of farmworkers posed by unreasonably dangerous use of pesticides. FIFRA provides EPA
with significant  authority  to *itmma«g these unreasonable risks, including use and disposal
restrictions, labeling requirements,  registration denials, and conditional registrations.  EPA's
                                          19
                                                                      000261

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                                                                   Citation, In  Anv
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            IlSthority is broadly TOrde(£ tfiercby leaving the Agency with significant discretionary authority
            19 take into account wide rinjpng concerns in implementing FIFRA.  Environmental justice
            concerns wfthrisk accumulation, ....... aamdatiyej^t3f worker notice, all fall easily within the core
            §l"the 'Agency's ........ regulatory ' £IIt|J2r^1 ^n^lllpIt^A_ '^ 7 u.S.C. 136a.
 ;;;	!, ;        	 .;.   :• ,;  f  , :.   ;   CONCLUSION	

       This memorandum iff intended 'merely as an opening salvo in an effort to prompt EPA
 to_ strive	more	systematically	to  use its  considerable penniiting  authority  to  promote
 ||y,|tpfnmental justice.	S^sttsssed^^ the outset,, this, memgrajKJum,,,,doe5,i,,iot purport to set forth
 for discussion all of the many authorities that EPA possesses.  Its purpose is far more modest:
 to survey some of the provisions of the major laws for examples of open-ended statutory
 ^-^.-•^	==LC	^ ;«&,^wi."environmental justice concema more,into  the lawmaking and
                  Tiere are-undoubtedly significant provisions missing from this presentation.
tie memorandum, moreover;; Barely begins to explore the potential presented by similariy open-

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