of the
         Title VI Implementation Advisory Committee
               Next Steps for EPA, State, and Local
                 Environmental Justice Programs

                         March 1, 1999
' 100/
 1999.6     National Advisory Council For Environmental Policy and Technology


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Report of the Title IV Implementation Advisory Committee : next steps for
EPA, state, and local environmental justice programs /
National Advisory Council for Environmental Policy and Technology (U.S.).
Title IV Implementation Advisory Committee.
U.S. Environmental Protection Agency,
Environmental justice—United States ; Environmental policy—United
1 v. (various pagings) ; 28 cm.
EJBD EPA 100/1999.6 Headquarters Library/Washington, DC
Cover title. Appendices at OCLC no. 45534656. EPA 100-4-99-004
{Washington, D.C.} :
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                          TABLE OF CONTENTS

INTRODUCTION AND OVERVIEW                                                1
      The Committee's Charge, Composition, and Process                              1
      EPA's Interim Guidance and the Select Steel Decision                             2
      Summary of the Issues and Committee Views      ,                              5
      Redefining the Committee's Mission                                          10
      Eight Consensus Principles                                                  11
      Roadmap to This Report                                                    13

NEXT STEPS FOR EPA                                                          15
      Revision and Implementation of the Interim Guidance                            16
            Step One: Stakeholder Consultations, Especially at the Grassroots            16
            Step Two: Revision and Implementation                                1_7
      Beyond Permitting: Consideration of Other Areas of Concern                      ]_8
      Research and Data Gathering on Cumulative Risk and Synergistic Effects            20
      Development and Distribution of Assessment Tools                              2J_
      Legal Research and Analysis                                                 22
      The Utility of Pilot Proj ects                                                  23
      The Best Context for Title VI Programs                                        23

      Two Paths to Equity                                                        25
      Deference to State and Local Government Permitting Decisions                    25_
      State and Local Government Flexibility                                        28
      Proactive Problem Solving                                                   29
      Incentives                                                                33_
            State and Local Governments                                          34
            Industry                                                            36
            Community Groups                                                  3_8
      Addressing Cumulative Effects                                               41
            A Comprehensive Inventory of Pollution Sources                          42
            Evaluating Potentially Adverse Impacts                                  43.
      Expansion of Existing Programs                                              46
      Public Participation                                                         47
      Participation by Government                                                 52
      Community Monitoring                                                     53_
      Significance of the Template                                                 55

EIGHT ISSUES OF SUBSTANCE                                                55
      Defining and Evaluating Effects                                             55
      Identifying the Community of Concern                                       61
      Determining Disparity                                                     68
      The Role of Existing Standards                                              70
      Agency Jurisdiction                                                       73
      New versus Renewal Permits                                               78
      Mitigation                                                              80
      Justification                                                             88

CONCLUSION                                                                91



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


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

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 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."  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


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 permitting 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.


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 Committee 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

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


       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


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 EnvironmentalJustice 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


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


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


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

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 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. 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

       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.)

4.      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.

5.      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.

6.      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


              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 Committee 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


Roadmap to This Report

       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


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


       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?


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


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

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

       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

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


       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


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

consultation with affected communities, they are not willing to relinquish screening 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

compelling information either exists or should be 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


monitoring that collects data on gaseous and particulate 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

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 born 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

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

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

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

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

develop cross-media permitting programs may provide better opportunities for mitigating the

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.


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


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,

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

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

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.

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

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


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

permitting decision made in the context of a program based on the model plan is to acknowledge

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.

       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

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


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

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-all"

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

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


       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

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


       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-permitting process (e.g., 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


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 local 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


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


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.


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.


       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

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


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.


       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

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


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

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.


       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


       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


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

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

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

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

       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


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


       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.


       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

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.

       The Committee recognizes that there are different definitions of state and local agency

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


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 operations,

              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 Brownfields 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

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


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 that 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


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

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


       The Committee did not reach consensus on another possible aspect of public participation

programs: giving communities the financial resources to obtain their own technical advisors.

Environmental justice advocates believe that such technical assistance is always valuable, and


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

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


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

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

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.


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.


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

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

controversial problem. For the purposes of Title VI, policy options range from a very demanding

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

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


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 aprimafacie case. During the second step, the

state or local agency, in conjunction with the permittee, would be given the opportunity to rebut


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


       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


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 such 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


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 other 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


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


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


       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


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

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

they are willing to consider a more arbitrary but consistent "radius" approach.  Under this

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

this 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

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.


       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 in 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


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. Qf

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.


       State and local government members of the Committee are especially concerned about

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 bome by a


       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 taking 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.


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

communities within the scope of EPA's environmental justice mission. Executive Order No.

12,898, Federal Actions to Address EnvironmentalJustice 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

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

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


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


       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 the 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

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.


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

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


       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


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


       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

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

agencies typically cannot affect pollution that travels across state lines from a facility regulated

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


       One state representative notes that environmental agencies generally  do not make facility

siting or other potentially objectionable land  use decision.  Because zoning is an activity reserved

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


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


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


       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 state and local agencies


go significantly beyond actual harm or imminent threats in protecting public health and the


       As one key example of such authority, these members of 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

No. 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)

(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


three distinct positions with respect to the issue of reconciling agency jurisdiction and the

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

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 an 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

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 in 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


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

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

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.


       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

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,


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

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


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


the reductions that permitted facilities must produce?  The complexity of these issues inevitably

leads to consideration of "moderate" and "loose" nexus proposals.

       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

remedies. Presumably, such remedies would be characterized as Supplemental Mitigation

Projects under the Interim Guidance.

       Members of Workgroup II ultimately endorsed a "hybrid" approach that combines

moderate and narrow nexus mitigation, requiring that mitigation measures be as narrowly

tailored as reasonable and practicable, but endorsing moderate nexus requirements when narrow

nexus mitigation is difficult or impossible to achieve. The main point of divergence within the

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


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

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 truck traffic, changes in property values, or deterioration in the

neighborhood's overall quality of life would all constitute 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


that this approach, on balance, was the most promising from both a policy and a legal


       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

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.

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

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,


the opportunities for voluntary resolution may become more severely circumscribed.

       A second industry representative agrees with this view, and suggests that early efforts to

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

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.

       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

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

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.


       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

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 (e.^, 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


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.

       An academic  member of the Committee drew an analogy between a stringent test of

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.

       Another member of the Committee proposes that economic justification be limited to

instances where economic benefits will be delivered directly to "proximate" communities, in the

form of jobs or other measurable improvements in the standard of living.

       Several 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


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.


       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


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.

March 1, 1999


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.



      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

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