10019996
                            Report
                             of the
         Title VI Implementation Advisory Committee
               Next Steps for EPA, State, and Local
                 Environmental Justice Programs

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

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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,
1999
42454269
Environmental justice—United States ; Environmental policy—United
States
1 v. (various pagings) ; 28 cm.
LIBRARY CALL NUMBER LOCATION
EJBD EPA 100/1999.6 Headquarters Library/Washington, DC
Cover title. Appendices at OCLC no. 45534656. EPA 100-4-99-004
{Washington, D.C.} :
{1999}
LIBRARY Date Modified
EJB 20010615
m
99214282
20010615140319
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eng
http://cave.epa.gov/cgi/nph-bwcgis/BASIS/ncat/pub/ncat/DDW?W%3DOCLCNUM+PH...  12/18/2006

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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

A TEMPLATE FOR STATE AND LOCAL GOVERNMENT PROGRAMS                24
      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

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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

APPENDICES
                                                                             92

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INTRODUCTION AND OVERVIEW


The Committee's Charge, Composition, and Process

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

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

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

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

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

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

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

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

"template" for state and local environmental justice programs.

       The Committee is comprised of representatives from the EPA constituencies directly

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

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

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




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




sessions, and also spent many hours considering the issues in three "workgroups" of participants.









       Workgroup I, entitled "Assessment," debated the factors involved in determining the




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




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




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




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




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




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




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




and local environmental justice programs.




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




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




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




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




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




EPA's Interim Guidance and the Select Steel Decision





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




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

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




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




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




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




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




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




Title 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




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these issues are to resolve.




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




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




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




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




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




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




development of the guidance.




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




to the substance of the crucial issues that confront 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.




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


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

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


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


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


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


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


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


environmental problems confronting communities of color.


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


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


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


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


Summary of the  Issues and 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

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




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




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




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




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




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




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




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




       Environmental justice advocates recommend that the Committee take an expansive view




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




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




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




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




deliberations.




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




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




on the appropriate resolution of those  questions.




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




least 1,000 residents). See 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




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




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




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




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




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




facility's operation.




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




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




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




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




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




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




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




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




disparate impact caused by such sources.




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




imposition of a disproportionate burden of adverse environmental effects on communities




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




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




discrimination against communities that results from individual permitting decisions.




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




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




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




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




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




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




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




industrial facilities.




Redefining the Committee's Mission




       While Committee members have shared many hours of enlightening and constructive




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




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




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




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




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




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




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




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




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




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




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




also recommending a detailed agenda for the next steps 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
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       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




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              ultimately, eliminate the impacts.




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




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




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




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




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




              research the nature and existence of cumulative exposures and synergistic effects




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




              Committee recommends that it significantly expand those efforts.




       8.      Finally, the 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




              dialogue.




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




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




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




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




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




focused on individual facility permitting decisions.




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




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




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




eight discrete sets of questions:




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




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




       social, or environmental harm?




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




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




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




       those living within a given distance from the facility?




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




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




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




       standard?




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




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




       regulatory requirements, is the decision illegal under Title VI?




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




       geographic constraints imposed by agency jurisdiction in defining disproportionate




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




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




       creating — as well as resolving — Title VI disputes?




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




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




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




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




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




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




       entitled "New versus Renewal Permits" below.




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




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




       that is discriminatory under Title VI?




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




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





NEXT STEPS FOR EPA






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







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




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




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




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




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




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




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




Agency initiatives.




Revision and Implementation of the Interim Guidance





       Step One: Stakeholder Consultations, Especially at the Grassroots





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




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




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




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




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




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




these crucial stakeholder groups.




       Specifically, the Committee recognizes that grassroots environmental justice groups are




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




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




advocacy groups must use human - as well as their financial — resources very carefully. If EPA
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wishes to understand their perspectives on environmental justice, in all of its varied meanings




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




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




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




       Thus, environmental justice advocates on the Committee recommend that EPA




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




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




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




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




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




       EPA has already facilitated one meeting among grassroots environmental justice




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




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




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




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




in these issues.




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




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




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




such problems have arisen.




       Step Two:  Revision and Implementation
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       After these consultations are completed, the Committee recommends that EPA issue




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




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




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




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




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




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




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




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




evaluate their effectiveness.




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




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




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




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




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




considerations  can affect their business.  The Committee particularly encourages proactive




efforts to educate the smaller business community.




Beyond Permitting: Consideration of Other Areas of Concern





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




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




advocates on the Committee have repeatedly noted that permitting issues are only one
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manifestation of the problem, and may have little — if any — relevance for many communities.




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




Agency.




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




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




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




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




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




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




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




emphasizing enforcement in communities containing a protected class.




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




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




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




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




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




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




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




issues in partnership with communities.




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




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




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




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




consultation with affected communities, they are not willing to relinquish 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
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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




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




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




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




the comparable burden 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
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       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.
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A TEMPLATE FOR STATE AND
LOCAL GOVERNMENT PROGRAMS

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

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




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




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




difficult to address in permitting proceedings.




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




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




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




governments, industry, business, and community groups to participate in broadly defined,




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




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




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




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




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




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




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




Track 1 to succeed without a generous measure of deference.




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




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




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




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




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




for state and local governments to comply with the law.




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




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




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




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




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




local programs.




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




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




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




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




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




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




the merits. In this view, the most EPA should do when confronted with a complaint regarding a




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




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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
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with state and local governments.




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




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




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




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




circumstances.




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




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




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




Proactive Problem Solving





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




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




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




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




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




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




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




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




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




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




possible. (See discussion of an inventory of pollution sources, below.) Once adverse effects are
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thoroughly understood, Track 1 programs would develop effective mitigation to reduce them.




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




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




unpermitted activities.




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




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




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




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




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




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




reductions from permitted facilities.




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




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




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




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




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




stakeholders.




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




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




begin as soon as possible in the permitting or pre-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




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makers and environmental agency officials conduct community outreach to identify parties




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




state and 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




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




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




they provoke a Title VI complaint.




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




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




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




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




their actions is a crucial component of early intervention.




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




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




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




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




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




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




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




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




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




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




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




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




number of residents—come forward?




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




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

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

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

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

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

without public complaints.

Incentives

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

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

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

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

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

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

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

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

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

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

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

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

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

important issue.


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       State and Local Governments




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




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




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




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




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




their merits when they are reviewed by EPA.




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




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




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




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




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




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




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




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




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




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




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




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




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




local representatives argue that under the current system, even if they implement an extensive
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program of public outreach and dialogue, permitting decisions can still get "trumped" by a Title




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




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




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




resources could be overcome.




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




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




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




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




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




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




of those issues.




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




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




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




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




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




shifting" regimes developed under other civil rights laws.




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




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




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




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




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




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




appropriation for this vital function.




       Industry





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




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




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




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




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




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




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




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




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




their "fair share" of necessary mitigation.




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




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




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




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




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




2 initiatives..




       Industry representatives on the Committee consistently emphasized their need for
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certainty and clear, timely decision making. They argue that if regulated industry members are




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




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




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




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




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




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




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




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




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




they are for state and local governments.




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




private sectors.




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




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




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




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




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




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




prepared by the NACEPT Committee is attached as Appendix K.




       Community Groups





       Members of the Committee identified three possible incentives  to motivate community




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




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




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




(3)  quantifiable pollution prevention and reductions.




       The conditions for meaningful public involvement are addressed in greater detail in the
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section of this report entitled "Public Participation" below. In addition to such important




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




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




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




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




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




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




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




compliance independently.




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




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




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




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




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




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




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




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




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




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




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




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




making that has direct effects on its health.




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




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




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




participation in the process.




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




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




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




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




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




process.




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




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




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




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




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




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




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




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




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




representation of a community.




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




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




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must leave the issue to other dialogue groups.

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

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

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

necessarily synonymous because reductions affect the overall burden of adverse impacts

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

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

       Environmental justice advocates stress that directly measurable benefits to public health

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

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

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

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

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

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

incentives immediately above.  However, they believe that programs with the exclusive goal of

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




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




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




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




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




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




       A Comprehensive Inventory of Pollution Sources





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




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




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




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




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




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




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




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




pollution or cause other significant risks.




       Environmental justice advocates and representatives of large industrial sources have




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




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




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




regulations that apply to major industries. Examples of this trend include nonpoint sources of
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water pollution, which are either unregulated or subject to ineffective regulation in most states.




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




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




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




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




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




       The Committee believes that exempting sources from the assessment of cumulative




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




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




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




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




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




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




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




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




accomplished, either by the new source or overall.




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




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




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




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




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




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




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




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




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




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




situations, or special enforcement if appropriate.




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




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




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




complaints and  lawsuits."




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




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




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




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




the context of permit reviews conducted with respect to individual facilities. The  Committee




recognizes that states and some local governments process hundreds, even thousands, of permits




each year and that it would be impractical, unreasonable, and unnecessary to require a full




environmental justice process for each one. The Committee also understands that many




permitted sources are small businesses, which may not have the resources to undertake extensive




public outreach.




       Workgroup III developed a list of potential criteria for establishing priorities among




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permitted sources that included such factors as the nature and amount of emissions, the potential




adverse effects caused by such emissions, and the type of permit at issue, but the Committee did




not achieve consensus on this relatively detailed list.




       Further, the Committee did not reach consensus on two closely related and equally




important issues. First, how should environmental justice programs take into consideration the




cumulative risks and synergistic effects of neighboring sources when making permitting




decisions for a single facility? Second, should the process and procedures of environmental




justice analysis differ with respect to new and existing facilities under a permit-by-permit




approach?




       As discussed in detail in the next section of the report, members of the Committee




disagree on the adequacy of the scientific data that is available to assess cumulative and




synergistic effects. Some members argue that cumulative risks and synergistic effects are




essential factors to consider at the same time that EPA works to improve the technical basis for




such decisions. Others believe that until the technical basis for such assessments is improved,




federal, state, and local regulators should not consider such adverse effects during the permitting




process. They are also concerned about efforts to address cumulative risk and synergistic effects




in Track 1 programs, given the current gaps in our understanding and analytical tools.




       One state representative observes that cumulative effects are already a factor in state




permitting decisions under the Clean Water Act because states conduct an assimilative analysis




of affected water bodies, and try to leave room for industrial growth. He acknowledges,




however, that the states' ability to develop remedies that address such effects vary depending on




the legal authority given to the environmental agency under existing state law.




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       Industry representatives on the Committee believe that the cumulative risk analysis




suggested by some in the context of Title VI complaints is quite different and more complex than




assimilative capacity analysis under the Clean Water Act.




       Members of the group further disagree on the issue of whether to regulate new facilities




differently than existing facilities. Some environmental justice advocates endorse an approach




sometimes described as "zero-based permitting" that would compel regulators to scrutinize




permit renewals (including upgrades and expansions) for existing facilities using the same




standards they apply to permit applications for new facilities. They argue that zero-based




permitting is fundamental to the elimination of discrimination because in certain circumstances,




it is be the only way to reduce disproportionate pollution loads.




       Committee members representing industry, as well as state and local governments,




strongly objected to this approach, contending that it is unfair, impractical, and illegal, and that it




would cause severe economic dislocation harmful to facility owners and community residents.




       In their dialogue on this difficult issue, members of Workgroup III considered — but did




not reach resolution on — a compromise approach that would include renewals and modifications




to existing permits in a Title VI analysis, but would not require the same degree of mitigation




from such facilities if significant economic hardship would result. Members of the Workgroup




discussed two alternative ways of dealing with such difficult situations: using offsets or pollution




trading programs or adopting a pollution "budgef'approach that would be modeled on the waste




load allocations performed under the Clean Water Act.




Expansion of Existing  Programs
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Expand existing decision making processes to incorporate environmental justice issues, rather
than creating a new and separate process, while ensuring that decision makers address such
issues in a timely, efficient, and predictable manner.

       The Committee strongly recommends that the second track of state and local

environmental justice programs — evaluation of potential environmental justice concerns raised

by individual permit applications ~ occur within the existing process for making such decisions.

To the maximum extent practical, the technical review of permit applications should occur

concurrently with the consideration of environmental justice issues, rather than leaving such

issues to the tail end of the process, where they can trump technical review, wasting time and

resources. Further,  leaving the evaluation of environmental justice issues to the end of the permit

process makes it more difficult for the permitting agency and the permittee to work with the

community to develop creative approaches to mitigation.

       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

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more detail.




Public Participation





Establish a transparent, accessible, honest, and accurate process for public participation.




       The Committee identified five elements that are essential to the creation of a transparent




process for public participation in decisions involving environmental justice issues:




       1.     Accessible, understandable notification;




       2.     Effective education regarding the legal and technical aspects of facility 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
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Projects may also prove helpful, especially in the context of developing mitigation measures to




address disproportionate environmental impacts.




       A state member of the Committee points out that national and state environmental




statutes contain detailed public participation public participation procedures that apply to




permitting decisions. He adds that these procedures should be supplemented as recommended in




this report to ensure that environmental justice concerns are addressed adequately. A local




government representative stresses that communities must be given assurance that their concerns




are being heard, respected, and considered.




       The Committee also makes the following additional recommendations to EPA as it




considers this aspect of the template.




       Notification in newspapers, even those of general distribution, may not be sufficient to




place affected communities on notice of a permit or other decision making process that will




address environmental justice concerns. The Committee believes that such minimal notification




should be supplemented by more aggressive community outreach. For example, New Jersey has




considered placing notices in electric or telephone bills. New Jersey has also established a




community liaison staff who develop an ongoing relationship with protected communities, even




when no decisions are before them.




       Effective notification includes educating citizens about the timelines that affect the




process, the standards that will apply to the decisions made by the permitting agencies, and the




remedies available to members of the community if they perceive the decision to be adverse.




Members of the public must receive notification in their native languages whenever possible.




       The Committee also emphasizes the widely-recognized reality that to achieve effective




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public participation, meeting times and places must be convenient for residents who work and for




those without access to an automobile. Holding a meeting during the day or at a location that is




inaccessible gives the community the clear impression 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




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process, but the Committee believes that it provides the most promising opportunity for timely




resolution of environmental justice disputes.




       During such deliberations, participants must have access to understandable data




concerning the facility's operations and the likely implications of the permitting decision for




public health. EPA can assist state and local governments in developing such information




through its national databases that include monitoring and release data, as well as information




about environmental conditions in the area where the facility is located.




       The Committee agrees that permit applicants should be asked to develop additional




information if necessary to supplement materials provided by the government, especially facility-




specific facts such as compliance history, discharges and emissions, and facility processes,




including opportunities for pollution prevention.




       State and local programs should ensure that important documents are translated into




languages other than English as appropriate. Permit proceedings can involve extensive




documentation, and state and  local regulatory agencies should make their best efforts to impose a




reasonable burden on permittees.




       Last but not least, the Workgroup believes that state and local governments should




articulate in writing the reasoning that underlies their decisions on environmental justice issues,




explaining to the community and the permittee why they reached the resolution they have




adopted.




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




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




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




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even necessary in many circumstances.  They stress that communities should be able to find their

own technical experts who are able to give them independent advice that is not influenced by

government or industry. Industry representatives are generally opposed to the mandatory

inclusion of technical assistance in environmental justice programs, arguing that it would create

an expensive new bureaucracy to support state and local permitting programs.  State

representatives respond that while some situations create a need for technical assistance, state

agencies should be able to provide it to people. A local government representative cautions,

however, that most local governments are not in the position to promise such help. One state

representative said that it was important for industry and the states to recognize that if the process

becomes hypertechnical, communities have little choice but to "go political."

Participation by Government

Inform and involve all relevant levels and types of government entities in the process of
reviewing actions that may have environmental justice implications. It is especially important
to cooperate with local government officials, including economic development officials.

       The Committee recognizes that successful environmental justice programs prevent, avoid,

or mitigate discrimination in environmental decision making.  Another important attribute of

such programs is to avert, to the maximum extent practicable, extensive delays and inconsistent

results as the applicant traverses the web of state and local agencies that must approve its

operation of a facility. In addition to agencies with regulatory authority, other branches of

government, such as economic development agencies, are frequently involved in planning new or

expanded facilities, as well as ensuring that existing facilities remain where they are and prosper.

       While the importance of including the permit applicant and community representatives in
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early discussions of environmental justice issues is obvious, the significance of involving these




other government entities is too often overlooked. Not only should their involvement prevent




inordinate delays in the decision making process, it may well make it possible to address




community concerns more directly.  For example, residents may be concerned about fire code




issues or the configuration of a highway used by trucks delivering materials to the plant. By




including officials with the authority to rectify such problems, both the permit applicant and the




community will benefit.




       State and local government representatives on the Committee stress that zoning and land




use decisions are frequently at the root of environmental justice concerns, which can be




characterized as the problems caused by the proximity of industrial activities to residential




neighborhoods. To truly prevent such problems, local officials must be consulted early and




educated on the potential future ramifications of such decisions.




       Some state representatives take this point one step further, arguing that because they have




no control over such local decisions, state agencies should not be held accountable for them in




the context of permitting decisions with respect to facilities that are clearly allowed to operate in




the area under local zoning laws.




       As important as it is to include all relevant state and local officials in the outreach effort,




the Committee believes that state or local environmental agencies must remain firmly in charge




of the process with respect to ongoing permitting decisions. Wherever possible, environmental




justice concerns should be integrated into the permitting process.  Members of the Committee




disagree, however, on the important issue of whether career permitting staff should be trained to




evaluate environmental justice issues raised by their work or whether these issues require the




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participation of staff whose job it is to focus exclusively on environmental justice concerns, with




some members fearful that if officials without technical background and expertise are assigned




responsibility for evaluating complaints, important issues could get inadequate attention.




Community Monitoring





Build community monitoring capacity.




       The Committee recommends that, in the context of Track 2 programs, state and local




governments consider initiatives that allow communities to continue to assess the compliance of




permitted facilities after initial environmental justice issues relating to the issuance of the permit




have been resolved. Building community capacity to monitor industry performance may prove




very effective in assuaging community anxiety about the health and environmental risks posed




by individual facilities. The Committee believes that monitoring and other information reported




to the government should be readily accessible to affected communities.




       Many Committee members further believe that, in the context of Track 2 programs,




consideration should be given to incorporating terms and conditions that mitigate discrimination




in the permit, making them enforceable by state and local governments, as well as EPA.




Alternatively, such requirements could be set forth in separate, binding contracts negotiated with




the community, with provisions that permit their enforcement in court.




       Industry representatives note, however, that voluntary agreements achieved in Track 1




programs are distinguishable from Track 2 mitigation arrangements. They are concerned that the




voluntary nature of Track 1 programs not be forgotten. Although industry has many reasons to




honor the commitments it makes to the community, turning these commitments into legally
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enforceable obligations could undermine the basic premise of a voluntary program.




       The Committee did not reach consensus on the question of whether environmental justice




programs should facilitate the initiation of citizen suits by, for example, adding expanded




authority for private enforcement to relevant state laws. Industry and state representatives were




strongly opposed to the idea that states assist citizen efforts in this direction, while other




participants believe that citizen enforcement was an important supplement to government




authority, and would give citizens the sense that they are "empowered" to address future




concerns. A local government representative suggests that EPA examine the California Public




Utility Commission Ombudsman Program for effective approaches to these issues.




       This disagreement should be distinguished from the Committee's recommendation that




citizens be given a meaningful opportunity to monitor compliance with agreements that require




permittees to carry out mitigation measures for a period of time.  As discussed in the section




entitled "Mitigation" of this report, ensuring community  capacity to enforce contracts they




negotiate with the permittee is essential so that the benefits of mitigation measures are delivered




over the long-run.




Significance of the Template




       The Committee recognizes that EPA has a difficult task ahead in ensuring that




communities are protected against discriminatory effects, dealing with state and local




government requests for flexibility, and responding to industry's need for expeditious,




predictable, and technically sound decision making.  However, the Committee believes that this




task is of the utmost importance and urges EPA to continue to give it high priority. As one state
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representative put it, the development of effective environmental justice programs gives




government the opportunity to "walk its talk," fulfilling the equitable ideals that are at the heart




of Title VI.





EIGHT ISSUES OF SUBSTANCE






Defining and Evaluating Effects





       As explained in the introduction to this report, members of the Committee had




profoundly different views regarding the definition of the "adverse effects" covered by Title VI.




The Committee understands that these issues inevitably will be addressed by the courts. The




Committee also recommends that EPA seek the counsel of experts in other areas of civil rights




law, in an effort to glean whatever insights are available from those, better developed legal




precedents.  (See the "Next Steps" section of this report.)  The Committee  hopes that EPA and,




for that matter, other decision makers, will keep the following considerations in mind as the




Agency rewrites the Interim Guidance, develops a model  plan for state and local environmental




justice programs, and turns its attention to other areas that raise environmental justice concerns.




       The Committee's views regarding the appropriate  definition of "adverse effect" can be




explained as a spectrum. At one end is what can be described as the "narrow implications"




interpretation of the statute, which defines adverse effects as health problems caused by




emissions or discharges that are directly regulated at the facility at issue. Industry




representatives on the Committee generally subscribe to this view. The other end of the




spectrum is best described as the "broad implications" interpretation, which defines adverse




effects as changes in a community's well-being that are related to the permit under consideration.






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Environmental justice advocates on the Committee generally subscribe to this approach.




Between these two positions are multiple shades of gray that at times perplex even those who are




certain that their views are anchored at one end of the spectrum or the other. Before considering




those shades of gray, it may be helpful to explain the two positions more thoroughly.




       Under a narrow implications reading of Title VI, adverse health effects are covered by the




statute's prohibition on discrimination. Adverse health effects would include problems that are




described by the Committee's Workgroup I as "bodily impairment," "infirmity," "illness," or




"death." To fall within Title VI, such injuries must be caused by the  activity addressed by the




permit.  Threatened as well as actual health effects would be covered by this interpretation, at




least to the extent that disparities in levels of risk can be quantified. In this view, harm to the




environment is not covered by the statute's ban on discrimination against people unless such




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




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plaintiffs to prove a direct link between the permitted activity and the adverse health effect.




While they would not necessarily require proof of causation comparable to what some courts




have required in the context of toxic tort cases, they would reject "circumstantial" evidence of a




causal link and instead require demonstrations that (1) exposure to the pollutant probably did




occur and (2) such exposure could have the effect of producing the adverse health consequences




covered by the complaint.




       Environmental justice advocates are equally strong in their opposition to this approach,




arguing that -- at the least -- it would require a full-blown risk assessment to quantify the precise




nature and scope of the harm at issue and — if taken to its logical extreme — would mandate




clinical  or epidemiological studies proving causation.  These members contend that this heavy




burden, if imposed on claimants, would nullify the protections afforded by Title VI as a practical




matter.  They argue that evidence that a community is affected by from multiple industrial




facilities and that no other neighborhood in the area is similarly affected is enough - in and of




itself- to demonstrate an illegal disparate impact without undertaking a controversial analysis of




cumulative risk and associated health effects.




       One academic member of the Committee suggests that if industry representatives insist




on such a demanding standard, it should only be  imposed in the context of a two-step, "burden-




shifting" approach. During the first step, a claimant would make a showing that the permit or




other environmental decision could cause disproportionate adverse effects by, for example,




demonstrating that communities of color bear a larger burden of pollution than the general




population, and this showing would constitute aprimafacie case. During the second step, the




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




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this showing by producing a risk assessment or other convincing empirical study.




       Members of the Committee subscribing to the narrow implications interpretation of Title




VI believe equally firmly that as long as the permit conforms with applicable regulations, its




issuance cannot violate Title VI because EPA is required to set permit standards that protect all




persons. They contend that to read the law to override the health assessments in EPA's




regulations would result in the promulgation of more stringent environmental regulations on a




site-by-site, industry-by-industry, or neighborhood-by-neighborhood basis, under the authority of




a civil rights — not an environmental — law, an outcome that they view as both illegal and unfair.




       Environmental justice advocates respond that industry is routinely regulated site-by-site




and sector-by-sector under federal, state, and local environmental laws, and that there is no




legally cognizable prohibition on such approaches if they are necessary to eliminate illegal




discrimination.




       There remains the issue of adverse health effects caused by "cumulative risks" and




"synergistic effects." The term "cumulative risk" is used here to connote threats to public health




caused by exposure to the sum total of releases, and the term "synergistic effects" is used to




mean adverse health effects caused by exposure to a mixture of emissions that interact with each




other to produce new risks.




       At this point, the relative simplicity of the narrow implications approach becomes more




complicated because proponents of this interpretation recognize that environmental regulations




often do not address such potentially serious threats. Or, to put it another way, proponents of the




narrow implications interpretation of Title VI recognize that risk assessment, as well as the




assessment and regulation of sources on a cross-media basis, have a role to play in the




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application of the statute even if a facility is otherwise operating in compliance with traditional




regulatory requirements. Although they recognize the potential importance of cumulative health




risks and synergistic health effects, some members of the Committee believe that the science




"isn't there yet" to identify and measure such problems with the precision necessary to support a




Title VI complaint. Despite these reservations, they support the Committee's recommendation




that EPA make research and data gathering in these areas a high priority.




       However the causal link between pollution and an adverse health effect is defined, a




narrow implications interpretation of Title VI would draw the line at this category of harm,




excluding from the ambit of the law, as well as programs designed to implement it,  any




environmental, economic, cultural, social, or psychological harm that may befall people of color




as a result of a permitted activity or other environmental decision. Proponents of this analysis




believe that the application of Title VI to environmental programs must remain limited to the




protection of human health and aspects of the environment that affect human health, and cannot




be extended to other aspects of community life. They argue that to read Title VI more broadly




would be to import social and economic policymaking into the implementation of environmental




laws, a result never intended by Congress. They further contend that economic and social




concerns are not only amorphous, but are caused by factors way beyond the control of facilities




seeking environmental permits.  Attempting to address 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




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extend to the environmental, economic, and social costs that pollution imposes upon people.




They read Title VI to encompass a broad range of potentially adverse effects, including damage




to human health, the environment, or a community's economic, cultural, social, or psychological




well-being. Any of these harms would be an appropriate subject of a Title VI complaint if it is




linked to the permitted activity or 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




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Agency. An initial - and not exhaustive -- list of such scenarios would include:




       1.      Situations in which a state or local government has treated the permitting of




              similar facilities within its jurisdiction differently, and this disparate treatment




              affects communities of color more adversely than other communities.  For




              example, the state or local government may have excluded communities of color




              from participating in the permitting process but allowed similarly situated non-




              minority communities to participate.




       2.      Situations where a state or local government has granted a permit to a facility




              located in a community of color that is already affected by a disproportionate




              burden of adverse effects related to the presence  of other industrial facilities that




              are permitted by the state or local government.




       3.      Situations where a state or local government has granted a permit to a facility




              located in a community of color that is already affected by a disproportionate




              burden of adverse effects related to the presence  of other industrial facilities that




              are not permitted by the state or local government.




Environmental justice advocates on the Committee believe that if EPA takes the approach of




describing situations that would constitute illegal discrimination under Title VI, the preventive




goals of the law would be achieved far more effectively.




       Consistent with their broad view of the scope of Title VI, these members of the




Committee would use a standard of causation that is expansive, encompassing adverse effects




that are linked directly ~ and indirectly ~ to the permit or other environmental decision. For




example, they argue that if a community is especially vulnerable to environmental pollution




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because it lacks access to medical care or has a poor diet, the community is a vulnerable




population that deserves stronger protection than populations that do not labor under such




disadvantages.




       These members of the Committee reject the argument that the ambit of Title VI is limited




to the scope of applicable environmental law, and instead contend that adverse effects are




covered by  Title VI if they are made possible or caused by the activities covered by the permit or




decision. Under this approach, a state or local agency could grant a facility a permit that




complies with all of the requirements imposed by environmental law and still violate Title VI.




       The shades of gray  along the spectrum marked by these two interpretations depend on




acceptance  of the concept of preventive programs that could be sponsored by EPA, the states, or




local governments. Thus, many members of the Committee, including some industry, state, and




local government representatives, are willing to broaden the scope of preventive programs to




encompass  problems beyond adverse health effects, including environmental, economic, social,




and cultural harm.  They are willing to take this step because they believe that some of these




problems are  in fact exacerbated by industrial facilities.  They also think that people of color are




convinced that this link exists.  To address both the real and the perceived manifestations of such




problems, a preventive program should distribute responsibility for mitigation more equitably




than is possible in the context of permitting a single facility.  Industry representatives note that




while they share the view that preventive programs should be proactive and will prove more




expensive, such programs must be clearly distinguished from the narrower legal confines of a




Title VI complaint.




       Perhaps because these issues are difficult, and the difference in viewpoints is  stark, the




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Committee spent far more time discussing preventive programs than debating the definition of




adverse effect in the context of permit decisions. EPA may be drawn in a similar direction when




it rewrites the Interim Guidance and further develops a model plan for state and local




governments. Ultimately, however, to develop meaningful standards for permitting and other




decisions, a more precise definition of adverse effects must be developed.




Identifying the Community of Concern





       Members of the Committee generally recognize that, in the context of decisions made




with respect to individual facilities, the term "community of concern" has two distinct




components: demographics and exposure.




       The demographic factor measures the percentage of members of a protected class in the




population affected by a permit or other decision in comparison to the percentage of protected




class members in the population of a "reference area." Obviously, delineation of the community




of concern and the reference area is critical because it determines which areas are protected




against discrimination under Title VI.




       Many members of the Committee advocate a  site-specific test to identify the community




of concern that would trace the environmental releases affected by the permitting or other




decision to the populations likely to be exposed to such releases.  Neighborhoods in an exposure




pathway would be included in the community of concern.  Because existing modeling and




monitoring methodology often are not accurate reflections of actual exposure, this step of the




analysis is easier said than done. The Committee's concerns about the accuracy of such




predictions, especially given the dearth of monitoring results in many places and the lack of data
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regarding cumulative risks and synergistic effects, are the basis for its recommendation that EPA




commit significantly more resources in this area.




       Some members of the Committee are sufficiently concerned about imperfect data that




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.




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       Environmental justice advocates urge a more flexible resolution of these issues that




would depend on the adverse effect to be measured. For example, they say that a negative




impact on property values might be best evaluated using a radius approach, while the adverse




health effects of air pollution could be modeled or monitored without resort to a relatively




arbitrary radius cut-off. However, as noted elsewhere 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




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population will coincide with the state or local agency's jurisdiction. Thus, in a dispute




involving permitting decisions by a state, the demographics of the state's entire population would




be compared to the demographics of the community adversely affected by the decision. 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.




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       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




community.




       In their final comments on the report, two members of the Committee — one representing




industry and the other local government — commented that it is possible to discover which areas




bear a disproportionate environmental burden without 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.




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However, to make good use of this analysis, state and local officials need not label a




neighborhood as sensitive or otherwise suspect.  The Committee did not have time to explore




these possibilities further, but reiterates its recommendation that EPA devote resources to




strengthening available assessment tools in this context.




       Some members of the Committee believe that in the context of preventive ~ or Track 1—




programs, EPA, the states, and local governments should incorporate low income communities in




their analysis of disparate impact, especially because a 1994 Executive Order includes such




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
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compiled a universe of five possible standards on the basis of its discussions and knowledge of




the standards used in other contexts. (A copy of the group's final draft report on these issues is




attached as Appendix C.)  The disproportionate adverse effect could be described as (1)




"significant," (2) "substantial," (3) "above generally accepted norms," (4) "appreciably




exceeding the risk to (or the rate in) the general population," or (5) "any measurable disparity."




Some members of the Workgroup favor the term "significant" as they understand that standard to




be applied under the National Environmental Policy Act.  However, other members of the group




say that they do not understand the content of such a standard, pointing out that NEPA does not




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




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with the modeling and other hypothetical modes of analysis that are often employed.




       An academic member of the Committee notes that whichever standard is applied, it must




be sufficiently sensitive to respond to communities of color that are particularly vulnerable




because, for example, they experience a high rate of asthma or other respiratory diseases.  In that




context, a test that simply measured order of magnitude disparities in total pollution loads (e.g..




X tons of emissions versus Y tons) would not sufficiently protect the community from




discrimination.




       Whichever standard EPA, the courts, and state and local governments ultimately adopt,




given the imprecise nature of monitoring and modeling, exposure analysis, and risk assessment




in virtually any environmental context, the determination of disparity is likely to remain the




subject of debate for the foreseeable future.




The Role of Existing Standards





       As mentioned above, the role of compliance with existing regulatory standards in




determining the merits of a Title VI complaint is among the most difficult problems tackled by




the Committee and is the issue that underlies members' differing views of 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
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the purposes of the "Prevention of Significant Deterioration" program under the Clean Air Act,

42 U.S.C. §§ 7470-7492.

       As this last interpretation suggests, it is crucial to establish at the threshold of this

discussion what is meant by the phrase "health-based standards." Many environmental

regulations are not based on an analysis of what levels are "safe" from a health perspective, but

rather are technology-based, performance-based,3 or procedural. Technology-based standards

represent a judgment that employment of the technology is the best we can do to control

pollution at a reasonable cost. Similarly, performance standards specifying how facilities must

be designed reflect a judgment regarding the best practices available to prevent contamination,

rather than a guarantee that contamination will never occur. Procedural requirements such as the

maintenance of records or the submission of monitoring reports are essential tools to ensure

compliance but do not directly control pollution.

       The question remains, therefore, whether compliance with technology and performance-

based standards, as well as such procedural mandates as monitoring, reporting, record keeping,

and inspection requirements, should mean that a permit complies with Title VI? The Committee

has no easy answer,  especially if the claim involves the possible creation of  cumulative risks or

synergistic effects.

       As discussed above, some members of the Committee argue that Title VI imposes an

independent mandate that disproportionate adverse effects be controlled, even if those effects are
       3  The term "performance-based" standards is used here to connote such requirements as
the design specifications imposed under the Resource Conservation and Recovery Act and is not
intended to encompass standards that set performance targets in order to achieve "safe" levels of
pollution, such as waste load allocations under the Clean Water Act.

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perfectly legal under existing law. Under this view, if a community of concern is exposed to a




level of releases higher than that experienced by the general population, Title VI requires that




additional relief be provided.




       But what standards should apply beyond the application of existing requirements,




especially in the context of individual permitting decisions?  Industry and some state




representatives on the Committee observe that forcing a facility to reduce emissions significantly




more than its competitors has a range of undesirable implications, as discussed further in the




section entitled "Mitigation," below.  They argue that EPA and state and local  governments lack




the legal  authority to make such standards up as they go along on a permit-by-permit basis, and




instead must either return to Congress for additional authority or amend existing regulations




before they require a facility to go "beyond the law" in  mitigating the effects of its emissions or




discharges.




       On the other hand, environmental justice advocates contend that while  it may seem




logical to use health-based standards as the benchmark for determining whether an impact is




"adverse," several factors suggest that this approach is extremely problematic.  First, statutory




mandates that EPA implement health-based standards have not been fully implemented, for a




variety of political, economic, scientific, and legal reasons.  Especially with respect to toxic




pollutants, many of which are common in urban areas, EPA has been slow in crafting specific




standards that will  protect human health and the environment as the statutes mandate.




       Second, even if there is a health-based  standard in place, such as the ambient air standards




for ozone that were at issue in Select Steel,  the problem of "hot spots" must be considered. The




air across a large regional area might be clean  enough to meet the standards overall, but there




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may well be pockets of pollutants at levels well above the standards.  If such hot spots occur in




racially-disparate patterns, these members of the Committee argue, EPA should find a Title VI




violation.




       Third, EPA must take the nature of the community into account. Communities




comprised of a protected class may include many people who experience high levels of




respiratory illness, elevated blood lead levels, restricted access to medical care, or other problems




that make them especially vulnerable to certain types of pollution.  If health-based standards are




not sufficiently stringent to protect such "vulnerable populations," a disparate adverse impact




may well occur despite compliance with regulatory requirements.




       Finally, environmental justice advocates contend that health-based standards are




sometimes not sufficiently protective and it may be common knowledge in the scientific




community that they need to be tightened before such changes are actually made. For example,




EPA recently announced changes in National Ambient Air Quality Standards that may not be




implemented for several years. These members of the Committee believe that in making such




changes, EPA has acknowledged that existing standards are not sufficient to address ongoing




health risks.




Agency Jurisdiction





       Members of the Committee advocating a narrow implications interpretation of Title VI




believe that it is unreasonable to require state or local governments to address problems that are




not within their jurisdiction, even if a community of concern is adversely affected by those




matters.  In this context, jurisdiction means the agency's authority over certain activities.  For
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example, environmental agencies often do not have authority over truck traffic to and from a




permitted facility; that role is generally left to local public works and police departments.




Jurisdiction can also mean the geographic location of a regulated activity.  For example, state




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




authority.




       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




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land use decision makers in the development and implementation of environmental justice




policies at the national, state, and local levels.




       Other members of the Committee, including other state and local government




representatives, environmental justice advocates, and academics, disagree with the position that




because local land use decisions may be the first step in the creation of discrimination,




environmental agencies are not responsible for the effects of such decisions. They argue that the




mission of environmental agencies is correctly viewed as the protection of public health and the




environment wherever and whenever necessary and that this mission cannot be limited by the




short-sighted details of particular regulatory programs. They also contend that the true




respondent to a Title VI complaint is the state  or local government as a whole, as opposed to the




environmental agency in isolation, and that all of the state's resources and authority should be




combined to redress discrimination.




       These members of the Committee believe that  programs to redress Title VI concerns will




be needlessly undermined if agencies take a constricted view of problems and potential solutions,




especially in the context of Track 1 preventive programs. They point to such success stories  as




EPA and state cooperation to establish emissions trading programs as a means to meet National




Ambient Air Quality Standards as a classic example of a creative and effective response to the




perceived constraints of agency jurisdiction, and they urge federal, state, and local regulators to




take a similarly innovative approach to problems raised under Title VI.




       One representative with extensive experience at the municipal level stated that the first




step in dealing with any environmental justice  issue is to identify all of the governmental entities




with influence over the outcome, including zoning boards, economic development agencies, and




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public works departments. Agency officials can then be consulted, or even organized into a




taskforce, to consider the problem cooperatively.




       It is worth noting that one industry representative on the Committee supports proactive




approaches, although she believes that it is important to distinguish between the legal confines of




Title VI and the more creative Track 1 programs designed to address broader issues of




environmental justice.




       However, another industry representative on the Committee believes that the issue of




expanding Title VI beyond the confines of the permitting agency's jurisdiction should never have




been considered by the Committee because it was "taken off the table" by EPA Administrator




Carol M. Browner during a meeting with state officials in late 1998.  He adds that the




Administrator reassured state administrators that EPA would not interpret Title VI to encompass




activities beyond their legal jurisdiction and that he urged the Committee's Workgroup I to




remove it from the Committee's agenda.  The Workgroup did not achieve consensus on that




point.




       Significantly, members of the Committee willing to go beyond agency jurisdiction in




defining the appropriate scope of environmental justice programs also interpret the scope of




federal and state environmental statutes more broadly, pointing to federal or state versions of the




Resource Conservation and Recovery Act, the Clean Air Act, and the Clean Water Act as




granting state agencies authority to  include permit provisions other than those specified by




regulation if necessary to accomplish the overall mission of the statute. These members of the




Committee, including its academic representatives, argue that the key federal environmental




statutes contain authority for — and, indeed, a mandate that — EPA and state and local agencies




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




environment.




       As one key example of such authority, these members 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




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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
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are covered by the proposed changes, but defining renewals as an opportunity to review the




"overall operations" of the facility. See Interim Guidance, attached to this report as Appendix F,




at page 7. Thus, the guidance states that EPA will generally treat permit renewals as if they were




applications for new facility permits, but will only examine permit modifications to determine if




the modification itself causes a disparate impact.




       Industry representatives strongly oppose this policy, once again arguing that if an existing




facility seeks to either renew or modify its permit 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




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have polluted in a discriminatory way for years.




       Despite the difference in their views, environmental justice advocates, industry




representatives, and state and local officials all recognize that, as a practical matter, it will be




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.




Mitigation





       It is necessary to answer all  of the difficult questions discussed above — from the




definition of adverse effects and the identity of the community of concern to the role  of existing




regulatory standards and the significance of agency jurisdiction — in order to reach the ultimate




issue in any Title VI dispute: what remedy is required to mitigate the discrimination? This
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question was tackled by Workgroup II, and a copy of its draft report is attached as Appendix D.




       At the outset, it is important to note that the Committee did not achieve consensus on




when the question of mitigation should be addressed in the process of evaluating a Title VI




complaint. Industry representatives argue that a state or local government should first be granted




an opportunity to demonstrate "justification" for the decision under review and should only be




required to mitigate the impacts of its action if the proffered justification is inadequate. In




contrast, environmental justice advocates would reverse the order of consideration of these two




crucial issues: requiring first that mitigation be considered and giving a state or local government




the opportunity to justify its action only if adequate mitigation is not possible.




       In any event, returning to the issue of what characterizes adequate mitigation, it is helpful




to describe the universe of possible interpretations as a continuum, which Workgroup II




categorized as "loose nexus" mitigation, "moderate nexus" mitigation, and "narrow nexus"




mitigation. The term "nexus" is used here to connote the relationship between mitigation and the




disproportionate  adverse effects that are the subject of the complaint.  Thus, narrow nexus




mitigation means remedies that eliminate or reduce the disparate impact.




       The dilemma presented by this approach is that it is often impossible to accomplish full




mitigation in the context of an individual permit proceeding.  To use a simple but telling




hypothetical suggested by an academic member of the  Committee, suppose that an African




American neighborhood supports the burden of 200 units of pollution, while the reference area to




which it is compared has a one-unit burden. The company seeking a permit renewal contributes




ten of those 200 units.  It can operate legally under existing regulations without reducing those




emissions. Denying the permit and shutting down the  facility would not eliminate the disparity,




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and would be objectionable and arguably unfair to the facility owner. To complicate the




scenario, suppose that the sources contributing the remaining 190 units include facilities




regulated by federally-funded programs, as well as facilities that are either unregulated or




regulated under programs with different sources of support.




       The Interim Guidance addresses this dilemma by suggesting consideration of




"Supplemental Mitigation Projects" (SMPs) that "address" the disparate impact without




eliminating it. See Interim Guidance attached as Appendix F, pages 10-11.  But the guidance




does not articulate further criteria for developing such projects, other than to say that they could




address matters "outside those considerations ordinarily entertained by the permitting authority."




Id. at 11. This comment suggests that SMPs will more often than not be the result of voluntary




agreements negotiated with the permit applicant, since it is not clear how a permitting agency




could compel their adoption. SMPs are modeled on the "Supplemental Environmental Projects"




(SEP) policy used by EPA and the states in the context of enforcement actions. The policy is




intended to channel resources into remediation that delivers direct benefits in the area where




violations occur.




       However, environmental justice advocates  on the Committee strongly object to use of the




SEP model in the development of Title VI mitigation because the model does not provide for




adequate public participation.  Instead, they argue, SEPs are developed in negotiations between




EPA and the permittee, with the community consigned to comment on, but not approve, the




measure. These members of the Committee believe that the community must be a participant in




the negotiation. They recommend that the development of a SEP occur either in the context of a




formal legal proceeding, where no parties could communicate with the regulators without




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notifying all other parties, or in the context of a formal mediation, where all parties are at the




negotiating table on an equal footing, with adequate technical resources and a neutral mediator.




       Beyond these important issues of a fair process, the Committee has found no easy answer




to the dilemma of mitigating adverse effects caused by multiple sources. Some members




returned to the Clean Air Act non-attainment model, urging consideration of bubbling, offset,




and emissions trading approaches.  Others, including some industry representatives, advocate a




"proportional contribution" approach that would require reductions that reflect the permit




applicants share of the problem as a whole (in the above example 10:199 units).  Still others




apply a narrow implications interpretation of the statute, arguing that the permittee's compliance




with existing regulatory requirements should defeat the complaint in the first instance.




       The dilemma of how to fashion a fair remedy when many sources contribute to a




disproportionate adverse impact may be easier to resolve in the context of preventive, or Track 1,




programs that are not confined to individual permit decisions.  By anticipating the problems that




may arise in individual permitting proceedings, the states, local governments, industry, and




affected communities would have an opportunity to fashion more equitable remedies and avert a




complaint when the permitting decision must be made.




       Even if programs are created to encourage the negotiation of solutions, the contribution of




unregulated sources to the overall pollution load remains very difficult to address. If a facility is




only asked to make a proportional contribution, how should the overall universe of sources be




defined for the purpose of calculating its fair share? Is it fair to the community to include




unregulated sources that will never contribute to the achievement of complete mitigation? On




the other hand, is  it fair to industry to exclude unregulated sources, thereby raising the level of




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




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




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not only a desirable policy goal, but was an essential component of mitigation policy and




requirements.  Third, the Workgroup found that the reasonableness of moderate nexus mitigation




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




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




perspective.




       How, then, does the Committee reconcile this conclusion with its endorsement of




negotiations to address the community's true concerns, both early on in the permitting process




and in the context of Track 1, preventive programs?  If no limits are placed on the topics that can




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

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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,




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the opportunities for voluntary resolution may become more severely circumscribed.




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




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.




Justification





       Under the Interim Guidance, the recipient of federal funding is given an opportunity to




"justify" a decision to issue a permit "notwithstanding the disparate impact," based on its




"substantial, legitimate interests." See page 11 of Interim Guidance,  attached to this report as
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Appendix F.  A "mere" demonstration that the permit otherwise complies with applicable




environmental regulations is not a sufficient justification under the guidance and no justification




will be accepted if a "less discriminatory alternative exists." Id. Less discriminatory alternatives




include "mitigation measures" that "lessen or eliminate" adverse impacts or, in the terminology




developed by the Committee, narrow-to-moderate nexus mitigation. Id.




       The Interim Guidance does not specify any examples of what would constitute sufficient




justification, although it mentions the "articulable value to the recipient" of the permitted




activity, noting that the value of a permit renewal for an existing facility would generally be




easier to demonstrate than the "speculative" value of a new facility.  Id.  This example implies




that the economic value of an industrial facility to its owner (e.g., contribution to a profitable




bottom line) or to the community (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




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justification that rises to the level of business necessity - i.e., the facility owner would not be




able to operate if mitigation was required. They especially favor this approach with respect to




existing, as opposed to new, facilities.




       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




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justification is a negative one: discrimination is only justified if there is no practical way to




mitigate the disproportionate adverse impact. This test would be stringent ~ i.e.. a failure to




mitigate is only justified if there is no effective pollution control technology that would reduce




emissions and it is impossible to lower their localized effects through trading regimes.




       Other members of the Committee disagree with this legal interpretation, contending that




the case law dictates that state and local governments must be allowed to justify alleged disparate




impacts early in the process, prior to any requirement that they propose — much less apply —




mitigation. These members further argue that the Interim Guidance does not reflect this




approach and urge EPA to revisit the issue when it revises the guidance.




       A local government representative on the Committee proposes that beyond establishing




substantive standards for acceptable justification, EPA should require that state or local agencies




potentially subject to a Title VI complaint must take two additional steps. First, the agency




should make "findings" that document the steps it took to avoid disparate adverse impacts,




including alternative siting or other measures considered during the permitting process and,




second, it should be required to certify that all feasible and reasonable mitigation has been




undertaken.  Only after these two steps are accomplished should justification suffice as a defense




to a Title VI complaint.





CONCLUSION






       The Committee commends EPA for realizing the importance  of an ongoing dialogue with




its stakeholders as it struggles to develop a fair and transparent policy for implementing Title VI.




Each of us is committed to continuing this dialogue, with the Agency and with each other. We







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worked hard together, but we recognize that there is much more work to be done. We hope that




EPA will find that this report makes it easier for the Agency to do what we managed to do with




each other: talk straight, respect differences, and remain dedicated to the importance of fighting




discrimination in the most effective way possible.
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March 1, 1999

NOTE RE: APPENDICES

Two kinds of documents are included as appendices to this report: (1) additional views filed by
members of the Committee following its approval of the final report (numbered appendices) and
(2) additional resource materials that are referenced in the body of the report (lettered
appendices). The resource materials, unless indicated otherwise in the final report, have been
included at the suggestion of one or more members because they may prove helpful to those
reviewing the report or further considering the issues debated by the Committee and do not
necessarily reflect endorsement by the full Committee.

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 APPENDICES

      Title                                                         Page Number

1     Additional Views [Environmental Justice/Academic Representatives]     001

2     Additional Views [Susana Almanza, PODER]                         009

3     Additional Views [The Honorable Rosemary Corbin, Richmond, CA]     010


A    Title VI Committee Charge                                        012

B    List of Committee Members                                        013

C    Workgroup I Membership List and Draft Report on Assessment          016

D    Workgroup II Membership List and Draft Report on Mitigation          031

E    Workgroup III Membership List and Draft Report on a State             049
        and Local Government Template

F     EPA Interim Guidance                                            068

G    Select Steel Decision                                              079

H    Environmental Justice Protocol proposed by Public Interest Law         130
        Center of Philadelphia

I     Materials on CMA Responsible Care Program                         137

J     EPA Office of General Counsel Summary of Other Civil Rights          151
        Precedents

K    Draft Preliminary Report on Incentives Prepared for the NACEPT        203
        Committee on Reinvention

L     NEJAC  Public Participation Guidelines                              214

M    ASTM E-50.03 -- Standard Guide to the Process of Sustainable          223
        Brownfields Redevelopment

N    NEJAC  Paper on Federal and State Legal Authority                    243

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