Report
of the
Title VI Implementation Advisory Committee
Next Steps for EPA, State, and Local
Environmental Justice Programs
March 1, 1999
Appendices 1 - 3, A - G
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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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EPA'S TITLE VI IMPLEMENTATION FEDERAL ADVISORY COMMITTEE
AND THE PERPETUATION OF STRUCTURAL INEQUALITY
AND ENVIRONMENTAL INJUSTICE
AN ADDENDUM TO THE FINAL REPORT
OF THE TITLE VI IMPLEMENTATION COMMITTEE
BY ENVIRONMENTAL JUSTICE AND ACADEMIC REPRESENTATIVES
We, the undersigned members of the Title VI Implementation Subcommittee of the
NACEPT, file the following addendum to the Report of our subcommittee. We file it to point
out for the record the procedural deficiencies in the federal advisory committee process,
deficiencies which seriously limited the participation of community-based environmental justice
advocates. We also file this report with the hopes that EPA will address the structural issues
identified here when constituting and operating other federal advisory committees.
I. The Title VI Federal Advisory Committee and the Perpetuation of Structural
Inequality
Perhaps ironically, given the subject matter of the Title VI Implementation
Subcommittee's work, its very creation and operation perpetuated the structural inequalities that
are at the heart of communities' Title VI complaints. The structural inequalities of the Title VI
committee were found hi almost every aspect of its process and work, from selection of members
to travel to attending meetings to drafting the final report to commenting on that report.
Committee membership. As members of the public and the committee pointed out at its
first meeting in May 1998, the Title VI committee as initially constituted had almost no
representation of those most affected by environmental justice problems and those most
experienced in using Title VI in environmental justice struggles: residents of polluted
communities. After environmental justice advocates made this an issue at the first meeting, three
new committee members were added: two community advocates and a mayor. Unfortunately,
one of the two community members selected (John Gibson of Mississippi) never participated in
the committee, for unknown reasons, and so the committee had the benefit of input from only
one community advocate who had actually used Title VI, Susana Almanza of Austin, Texas.
Travel and accommodations. EPA did not seem to realize that its policy of forcing all
committee members to pay for hotels, meals, taxis and in some cases plane flights up front, and
then await reimbursement months later, could easily have precluded community representation.
Many residents of low-income communities do not have credit cards, cannot afford to spend
i Appendix 1: Additional Views
ooootfi
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$138 a night (for several nights) on a hotel room, and cannot afford to buy a $300 plane ticket.
Some committee members surmise that this economic barrier may have been what kept John
Gibson of Mississippi from participating: had he showed up at the airport to find he had to
purchase his ticket on the spot (as several committee members, including environmental justice
and state representatives, did), he may well have turned around and gone home. Nor can such
participants afford to loan the EPA hundreds of dollars for months at a time, as all committee
members were required to do. The very structure of the committee's travel and accommodation
process had an impact on community participation.
Meeting attendance. Unlike states and industry, many environmental justice advocates do
not have the ability to devote significant amounts of time to non-paid federal advisory committee
work, and thus cannot afford to take the time off to attend each committee meeting. And, unlike
states and industry, community representatives and other environmental justice advocates do not
have entire staffs to delegate work on the committee to, or to send in our stead if we are unable to
attend a particular committee meeting. Examining the attendance at the meetings, it is clear that
environmental justice advocates' lack of proxy staff hurt their representation at the meetings. A
quick tally of absentees at each meeting, found in Table I, confirms this point: overall, no state
and only one industry member was unrepresented at any meeting. At the same time, at almost
every meeting there were environmental justice activists who were unable to make the meeting, so
at each meeting the environmental justice stakeholders were under-represented. The sacrifices
and difficulties of serving on a federal advisory committee are eloquently set forth in Susana
Almanza's letter to the committee:
TABLE I:
Absentees at Title VIFACA Meetings
May 1998: Barry McBee (represented by Jody Hennecke)
July 1998: John Gibson, Tom Goldtooth, Walter Handy, Lillian Kawasaki (2
environmental justice, 2 local government)
October 1998: Susana Almanza, Cherae Bishop, John Gibson, Jane Nishida
(represented by Art Ray), Gerald Torres (2 environmental justice, 1 academic, 1
industry)
January 1999: Robert Bullard, John Gibson, Bob Shinn (represented by
Nancy Milsten), Gerald Torres (1 environmental justice, 2 academic)
March 1999: Susana Almanza, Robert Bullard, John Gibson, Tom
Goldtooth, Charles Lee (resigned), Richard Monette, Haywood Turrentine (5
environmental justice, 1 academic, 1 tribal)
Overall: 10 environmental justice, 4 academic, 2 local government, 1
industry, 1 tribal.
000002
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We have taken time away from our local work. We have taken time away from
fundraising for our organization that struggles to survive from one year to the next. And
we have taken time away from our families and friends to participate in this process. We
do not have the luxury of sending our lawyers and our consultants to participate for us as
does industry. We do not have the luxury of having engineers and analysts under our
employ to review and analyze things for us as our counterparts in state government. We
have had to do this on our own.1
The Drafting Group. At the FACA's Tucson meeting, the contractors worked to appoint a
"Drafting Group" which was charged with working with Rena Steinzor to come up with the final
report. The initial Drafting Group was selected with sector balance hi mind, and included Sue
Briggum (industry), Eileen Gauna (academic), Lillian Kawasaki (local government), Richard
Lazarus (academic), Charles Lee (environmental justice), Lang Marsh (state government), Peggy
Shepard (environmental justice), and Richard Monette (tribal). However, it was announced that
anyone who wished could join the Group, and John Chambers (industry), Dell Perelman
(industry) and Bob Shinn (state government) signed up, skewing the group markedly. When this
was pointed out in our January 1999 meeting by an environmental justice representative, the
contractors scrambled to convince Susana Almanza to join the Group, which she did. However,
the Drafting Group still was heavily weighted toward industry and the states.
The process for commenting on the Draft Report. The process for commenting on the
Draft Report placed a huge strain on environmental justice representatives on the committee. The
turnaround tune for comments on some documents was a short as 24 hours. Community group
representatives, who have full workloads outside of the committee process and unlike other
participants do not get paid for then- work on the committee, cannot set aside other work to devote
the significant time necessary to review and comment on draft documents. As Susana Almanza
pointed out, such committee members, unlike state and industry representatives, do not have
staffers to read, analyze and comment on the documents for them. Several environmental justice
representative did not have the time to fully review the documents, and this led to Ms. Almanza
abstaining from voting on the final report. Her reasoning is simple, and damning of the
committee process: "On a very basic level, we have simply not been given enough time to review
and comment on the many drafts of the final report which have been circulated since the
beginning of the year. While this is reason enough for our abstention, our decision is further
necessitated due to the fact that our resources are so completely and utterly out-matched by those
of industry and state government."2
1 Letter from Susana Almanza to Ann E. Goode re: Abstention from Vote on Final
Committee Report, February 28,1999.
2 Id.
3 000003
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II. The Cost of Missing Community Participation
The exclusion of community members means that the Title VI committee did not have the
full range of information before it in our deliberations ana in making recommendations to the
EPA. The cost of excluding those most affected by environmental injustice is demonstrated by
considering some of the suggestions which emerged from a 10-hour "listening session" EPA held
in Dallas, Texas in February with environmental justice advocates from around the country. The
session, designed to give EPA individual input on its civil rights policies in general and, in part,
on the Draft Report of the Title VI Subcommittee, elicited a number of excellent ideas on Title VI
and its implementation. The conversation was wide-ranging, but resulted in a number of specific
recommendations from individuals to the EPA.
The comments from the Dallas meeting demonstrate the ideas which would have been
available to the Title VI committee had it had increased community participation; some of these
ideas were independently developed by the committee, but many were not articulated with the
level of sophistication found in the Dallas meeting. We note that these comments were the result
of a single "listening session" held over two days; had this group held five meetings over a dozen
days, as the Title VI subcommittee did, the ideas could have been fleshed out considerably.
The following points, in no particular order, are taken from Luke Cole's notes from the
Dallas meeting, and reflect the input of grassroots activists:
• Technical assistance grants for communities in the permitting process.
• Hold permitting process hearings at convenient times.
• There should be a thorough testing of the impacts of existing facilities (rather than
modeling) before renewal or expansion.
• Moratorium on new facilities in over-burdened communities.
• One facility in one community can have a disproportionate impact; there does not need to
be a pattern.
• We need EPA leadership to defend Title VI.
• No deference to the states.
• No moving the goal posts: first we had to show proximity, then we had to show
exposure, then toxicity, then actual health impact.
• There needs to be an appeal provision for complainants whose complaint is rejected;
states have six or seven different places in the process to have complaints dismissed, communities
have no recourse.
• There should be a presumption that a state is violating Title VI if it does not follow the
model public participation guidelines.
• There should be a presumption that a state is violating Title VI if it retaliates against
community residents or their representatives.
• There should only be a narrow nexus for mitigation measures.
• Companies should pay for technical experts to assist communities during the permitting
process.
• There can be no compromise of Title VI as it is a federal civil right.
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• The Guidance only applies to the Office of Civil Rights, but should apply to the entire
EPA.
• The states' call for deference is a rehash of the "states' rights" arguments of the 1950s
and 1960s. The federal government needs to respond now as it did then, by protecting peoples'
civil rights.
• The FACA Report has much too much deference to state governments.
• There is no discussion of procedural inequity in the FACA report; what happens if
someone violates the process?
• There are no teeth in the FACA report.
• There is no environmental justice representation on almost all of EPA's Federal
Advisory Committees.
• The template for the state is all procedural and cloes not require a lessening of the
injustice in our communities.
• States are not protecting our rights, that's why we are forced to use Title VI.
• ECOS is trying to move Title VI toward an environmental model which would allow
some pollution. '
• It is betraying civil rights to equate civil rights with a regulatory mitigation model.
• Don't devolve Title VI to the states - it is state abuses that caused Title VI to be passed
in the first place.
• EPA is not currently enforcing federal environmental law against the states, so why
would we expect it to in the civil rights context? EPA is not using the tools they have.
• Justification only applies to the agency, not the permit applicant.
• There is nothing in the FACA document on penalties.
• Loose nexus mitigation is unacceptable.
• EPA programs don't work.
• Supplemental Environmental Projects don't work; Los Angeles car scrapping offered as
an example.
• The FACA document's tone is deferential toward the states.
• There is no process for communities to deal with adverse decisions.
• The FACA document provides incentives to states to do nothing.
• There are all kinds of ways for states to appeal throughout the Interim Guidance, but
none for community.
• Public participation must be substantive.
• There were not enough women on the FACA.
• Impacts like smells, light, noise and traffic must be addressed.
• There is not one size that fits all.
• Why is Select Steel mentioned in the FACA document, and not Shintech, on which vastly
more resources and time was spent?
• The structure of the FACA was not representative and excluded community groups with
direct knowledge to Title VI.
• It was a mistake not to increase the number of community representatives on the FACA.
• EPA and the target of the complaint can resolve the complaint without the complainant;
this should be redressed.
• There are seven different steps before funding to states is cut off- too many hurdles for
000005
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community residents.
• Reductions in pollution levels in permit renewals can still have a disparate impact.
• Public participation should be mandatory, and if the states don't do it there should be a
presumption of Title VI violation.
• There needs to be teeth in the Guidance, such as 1) presumption against the state for not
following public participation guidance or retaliating against complainants; 2) recission of
delegated programs; 3) compliance reviews.
• Industry is heavily represented on the Science Advisory Board, meaning that clearly
biased people took part in the review of OCR's methodology.
• The Science Advisory Board recommended consideration of acute impacts, which the
Guidance and Select Steel ignore, and also of noise, odors and accidents.
• Arizona is working on a methodology for analyzing the risk of accidents.
• Risk of accidents, traffic (as a child hazard), light pollution, psychological impact,
stigma, and aesthetic degradation all are impacts.
• FACA should have brought in Title VI experts to inform its work.
• Members of the Science Advisory Board get corporate research money.
• What is baseline health of community? Run data by diagnoses code to find evidence of
exposure - e.g., chloracne comes from chlorine exposure.
• Communities want a medical model (preventative) rather than a regulatory model.
• Mitigation should not involve pollution trading because of the potential environmental
justice impacts.
• Polluters as part of the Science Advisory Board replicates the flaws found in states.
• The FACA report does not lay out any impacts outside of health.
• The FACA report relies on existing EPA programs that do not work.
• The Interim Guidance doesn't deal with policy or programmatic Title VI complaints.
• In considering the new vs. renewed permit, look at zoning law and non-conforming use
precedent, where it must be brought up to full compliance when renewed.
• Look to Department of Transportation guidance for definition of community; don't
reinvent the wheel.
• Dust, odors, property values, noise, all must be considered impacts.
• Don't treat new and renewed permits differently.
• There should be a moratorium on new facilities in areas that are already
disproportionately impacted.
• How do Select Steel and Shintech have an impact on EPA process, and why is only Select
Steel mentioned in the FACA report?
• The Interim Guidance does not take into account patterns of discrimination.
• Justification defeats the purpose of Title VI and should not be allowed.
• The Guidance should cover enforcement and clean-up.
• We don't have the ability to effectively engage in the processes; grants from EPA would
help.
• Model state plans should cross jurisdictional boundaries and force state agencies to
address communities' problems as a whole.
• This process [Dallas meeting] is too late in the game and is similar to the last-minute
inclusion of community residents in permitting processes.
6 oooeof
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• Just because most of the complaints are in the permitting context does not mean that
other areas are not important.
• Participation here [Dallas meeting] reminds participant of industry process -too little,
too late.
• Even if facility is reducing its emissions, from a community perspective it may still have
a disproportionate impact.
• Violations by a company override "state of the art" equipment and call into question
EPA's assumptions.
• Why weren't the comments of the Southwest Network for Environmental and Economic
Justice addressed by the FACA?
• The model state program gives too much deference to state agencies.
• Communities are filing Title VI complaints because states aren't doing their job.
• Regulations are created by industry and don't protect communities.
• No deference to the states - the feds can't surrender Constitutional rights.
• Can't incentivize civil rights - can't reward perpetrators.
• For population bearing the impact, follow exposure plume.
• No deference to the states.
• "I want to be in the room when policy makers have their rap session with industry before
a plant is even proposed."
• Justification should not be based on economics.
• No justification should be allowed.
• Lack of enforcement by states means that assumptions underlying "no impact"
determination (like Select Steel) are not real or verifiable.
• Lack of enforcement is part of disparate impact.
• We need resources to take part in public participation process - need to be trained hi this
to be effective.
• Need information in appropriate languages.
• We need problem-solving beyond jurisdictional boundaries of agencies.
• The terms in the Guidance and the FACA report are not well defined.
• States aren't going to do anything until EPA forces them to.
• Language on Title VI compliance could be written hi to Performance Partnership
Agreements.
• Performance Partnership Agreements are not working now.
• Can't look at either/or in deciding radius vs. exposure — there are many different impacts
which need to be looked at in different ways.
• Need to make explicit what public participation means.
The Title VI committee did not have the benefit of these issues and perspectives during its
deliberations, and was thus unable to flesh out several excellent suggestions which arose out of
the Dallas meeting. EPA has thus deprived itself of important input from those with the most
knowledge of pollution's impacts on communities - residents of those communities.
000007
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III. Conclusion
All of us have taken part in this federal advisory committee in the hopes that we can help
EPA develop a credible civil rights policy. It is unfortunate that some of the very hurdles to
achieving environmental justice with which we struggle in our communities on a daily basis were
replicated in the committee process, and we hope that EPA addresses these issues in the future.
s^ Nine:
Signature:
Name:
Signature:
Name:
Signature:
Name:
Signature:
Name:
Name
OH
Name:
None:
Y
LWC:ks
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- .JDL.. ._ _ -^.^THJL18'99 10 = 31 No.003 P.02
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Southwest Network for Environmental ana J&coiiuum:,
P.O. Box 7399 • Albuqueiqoe, New Mexico 87194 • (505) 242^0416 • PAX (505) 242-5609
Sybil Ltdana
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NeriHolguin
JbefKiaaatvtt
Ron Acorn
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GuRttto Context
Cc»>mfla.MX
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Accra* PuebJg Tribe
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Guam Vitadcc
B^CUifami*
October 16, 1998
Carol Browner, Administrator
U.S. EPA
401 M. Street 5W
Washington, DC 20460
FAX (202) 260-4852
Dear Ms. Browner
Wo CUP ~ rlting OK bAhnif of th« SDuttovpsr Ncnwnric fnrEnYirenroei^al and Eco-
nomlc Justice regarding the Title VI Interim Guidance.
The Southwest Network comprises over seventy (70) grassroots, community based.
student, native, and labor organizations throughout the Southwest and Western US
and border states of Mexico, formed to address environmental degradation and
other social, racial, and economic injustices that threaten our communities.
As many studies have shown and ax our personal realities reveal, people of color
and indigenous communities are often disproportionately Impacted by environmen-
tal hazards. These situations have come about through the development of unjust
land use and economic development policies as well as through the unjust applica-
tion and enforcement of environmental laws.
\
'Discriminatory policies and practices have given rise to the movement for environ-
mental justice which to date has seen many significant victories at the national
level, including the passage of the Executive Order on Environmental Justice and
the creation of the National Environmental Justice Advisory Council, as well as at
the local level, including the recent defeat of the proposed Shintech Plant near
Convent, Louisiana.
However, in almost 50 other cases nation-wide, community leaders have filed
complaints under Title VI of the Civil Rights Act to confront environmental injus-
tice in their communities with no fruition. Because of EPA's slow processing of
these complaints, several pending complaints still remain unresolved, leaving those
communities in. the pitfalls of insidious industrial development We feel that
Implementation of a policy that would process Tide VI complaints in a more
accelerated and effective manner would provide a more suitable mechanism for
protection in our communities.
Furthermore, towards the development of a more equitable implementation process,
we feel that the voices from those communities most affected arc rundaraeniaL In
view of this, we express our utmost concem about current comnuinify'inpUt and
how it Is being incorporated into the development of the guidance policy. Several
Southwest Network affiliates have given testimony, expressed concerns, and made
comments and recommendations on the guidance at the last two Title VI Advisory
Committee meetings. How are these recommendations being included in the
guidance policy?
Building Power Without Borders - In tht Spirit of Our People
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Pl _ ,_ 18'99 10:32 No-003
The following are the Southwest Network's comments and recommendations on the Title VI Interim
Guidance and on the Findings of the Title VI Implementation Advisory Committee for your
consideration. . .
Regarding the Title VI interim Guidance, fePA Should: .
• Develop a guidance policy for complaints outside the permitting context (for example, enforcement,
clean-up, etc.), since the Guidance only covers issue? involving permitting.
• Adopt a more flexible definition of "final agency action" for beginning the statute of limitations.
• Bar penuits from taking effect while & Title VI complaint Is pending. EPA must ensure that a fscili!
is not constructed between the tinw a complaint is fDcd and a final determination is made.
• Include the complainant and affected community in the investigation and processing of the complaii
as well as in the development of any mitigation measures. The Guidance should clearly set out the
complainant and the affect community's role in the process.
• Require states to compile relevant demographic information on permits or provide demographic
analyses of their entire permitting programs as part of their Title VI obligations.
• Take no action on pending cdmpl&Ints until the flaws in the interim guidance are addressed and a
final guidance is issued.
• Recognize that "exposure to pollutants" constitutes an impact which can be acted upon under Title'
of the Civil Rights Act (in other words, the risk of an adverse heal* effect and not just an actual heal
effect should be considered an impact).
• Resolve complaints within the time limits specified in the Guidance once it has been finalized.
. •
• Specify which analytic methods are to be used for resolving Title VI complaints or work with
' complainants and the affected community to choose the analytic method to be used.
• Apply the Guidance to all of EPA, not just the Office of Civil Rights.
• Remove from the Guidance the language "relevant under permitting program" which may by used
limit the facilities considered when determining whether there is disparate impact
• Eliminate the requirement that complainants (or EPA) have to examine the entire universe of faciliti
permitted by an agency to prove a pruna facie (on its fece) case of disparate impact. In addition to
placing a heavy burden on the complainant (or EPA), it mischaracterizes this approach as the only w
of proving disparate impact.
• Provide technical 'assistance grants for groups filing Title VI complaints so that they may hire
demographers*statisticians andtechnicalexperts. .
* Revise the Guidance hi order to incorporate the many suggestions provided by community groups
and environmental justice advocates.
< *••..
• Define the process by which the Guidance will be updated and specify what additional opportuniti
for comment the public wfll have..
Ffliminatr the requirement that a Title VT complaint be refused if it is filed before the decision to grani
the permit or other authorization is made. A complaint filod before a permit is granted should triggej
some sort of environmental justice analysis to be completed before the permit is granted. If the
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ID:
NO.003 P.04
decision that is anticipated in the complaint is ultimately mado, EPA should begin processing the
complaint and not require that the complaint be resubmitted.
• Prepare a citizen's guide which explains the procedures for filing Title VI complaints.
• Specify who win administer particular types of federal fluids If funding is invoked as a result of a
Title VI complaint There is a concern that our communities will suffer if funds such as CDBG ate
revoked. •
Regarding Title VI Implementation Advisory Committee findings, EPA Should:
• Provide grassroots environmental justice organizations that have not been able to participate on the
committee or attend commitTCft meetings an opportunity to comment on the findings of the committee
before a final report is issued, Grassroots organizations do not have the resources that industry and
states have to participate in processes such as this and should be given an opportunity to voice their •
opinions regarding these issues.
* Please provide die Southwest Network with a copy of the Draft Findings of the Tide VI
Implementation Advisory Committee so that we may comment on them before a final report is issued.
Lastl, the Southwest Network Indigenous affiliates have had several discussions where concerns
have been expressed regarding the legal issues and issues of sovereignty associated with the
applicability of Title Vf to Tribes andlhdigfinous people. We recommend
that grassroots Indigenous
organizations and Tribes be included in any discussions initiated by EPA to craft a consultation process
on Title VTs applicability to Tribes.
In conclusion, we ask that yon please forward these comments to the Title VI Implementation
Advisory Committee and inform us as to how these comments will be included in the guidance policy.
Thank you for your anticipated consideration. We look f onvaid to hearing from you within the next
two weeks. If you have any questions concerning this matter or would like more information
concerning our issues, please do not hesitate to call our regional office at (505) 242-0416.
Rani Alvarez,. Chair
EPA Accountability Campajglh
Rose Augustine, Chair
EPA Accountability Campaign
ive Coordinator
Richard Moore, Coordinator
SW Network Regional Office
SW Net work Regional Office
Southwest Network P>Sf affiliate and associate organizations signets:
Action for Grassroots Empowerment & Neighborhood Development Alternatives: AGENDA (CA)
Alianza Ladlgena Sin Fiontens (AZ))
Asian Immigrant Women Advocates: AIWA (CA)
California Indians for Cultural & Environmental Protection: CICEP (CA)
Casa de Colons Resource Center (TX)
Chinese ProRTcssivc Association: CPA (CA)
Citizens for Improved Community-Police Relations: dCPD (AZ)
Colorado River Native Nations Alliance (CA)
Comadres(AZ)
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fefcj bus ai8'99 10:34 No-003 P.05
Comision de Action Revolucionaria de Latinos Organizados Para Siempre: CARLOS (CA)
ComMi Organizacfon de Padres dc Azdan (AZ)
Committee for Environmental Justice Action: CEIACDO
Communities at Risk Project of CRLA: CARP (CA)
Concerned Citizens of South Central Los Angeles (CA)
Concerned Citizens of Sunland Park (NM)
Cultural Liberation Coalition: CLC (CA)
Denver Neighbors f at a Toxic Pice Community (CO)
Environmental Health Coalition: EHC (CA)
Escuela de la RazaUaida (CA)
FuerzaUnidaCTX) •
Hondo Empowerment Committee: HEC (TX)
Guardians of the Grand Canyon. Havasupai Tribe (AZ)
Korean Immigrant Workers Advocates: KTWA (C A)
La Sierra Foundation (CO)
Labor/Community Strategy Center (CA)
Laguna-Acoma Coalition far a Safe Environment (NM)
Madras del Este de Los Anodes - Santa Isabel: MELA-SI (CA)
Movimiento Estudiantil Oncaaos de Aztlan, University of New Mexico: MEChA-DNM (NM)
New Stair for a Better Environment (TX)
Nindakin - People of Color for Environmental Justice (C A)
Organizacfon en California do Llderes Campesinas (CA)
Padres Hada Una Vida Mejor (CA)
People Organized in Defense of Earth and her Resources: PODER (TX)
People Organizing to Demand Environmental Rights!: PODER! (CA)
People United for a Better Oakland: PUEBLO (CA)
Pctroglyph Monument Protection Coalition (NM)
Pibpino Workers Center (CA)
San Antonio Coalition for Environmental & Economic Justice: CEJA (TX)
San Francisco Bay Advocates for Environmental Rights!: SAFER! (CA)
Southwest Organizmg Project: SWOP (NM)
Southwest Public Workers Union: SPWU CTX)
Tonatieatra Community Development Institute (AZ)
Tucsoniaos for a Clean Environment: TCB (AZ)
Ujirna Security Council (CA)
Union de Trabajadores Aericolas Fronterizos: UTAF (TX)
Union Sin Fronteras (CA)
West County Toxics Coafidon: WCTC (CA)
Yeoani(CA)
cc: Angela Chung, Assistant to the Administrator on EJ AnaRGoode Director
USEPA, Office of the Adminisrator USEPA, Office of Civil Rigbts
?T&S?°^3cttnf5il^ctor - PeHcia Marcus, Administrator
USEPA, Office of Environmental Justice USEPA, Region 9
Greg Cookc. Regional Administratcr
USEPA, Region 6
Elliot Laws, Chair
Title VI Implementation Advisory Committee
Hay wood Turrentine* Chair
National Environmental Justice Advisory Committee
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FROM :
MflR 18*99 10:34 No. 003 P.06
«l.C SOWS ^ <=•
FftX NO. : ^729922
. 05 1998 04:S7PT1 PI
Organized la Defense of Earth »od her Resource*
February 28,1999
Ann £. Goode, Director
Office of Civil Rights (1201)
U.9- Bnvironmental Protection Agency
401M Street, 5. W.
Washington, DC 20460
Re: Abstention from Vote on Final Committee K«pori and Request that
PODER's Reasons for Aoatatnlnc a& Outlined in this Document be Reflected in the
Final Rtport of the Title VI Implementation Advisory Committee
Dear Ms. Goodei
PODER abstains from any vote on the final report of the Title VI lmpl«m«nution
Advisory Committee. On a-v»iy basicleveL wehav« simply not been given enough
time to review ind comment on the many drafts of the final report which have
been circulated since the beginning of the year. While this is reason enough for our
abstention, our decision is further necessitated due to the fact thai our resources ere
so completely and utterly out-matched by those of industry and state government.
As noted in our 2/12/99 comments on the 1/4/99 Draft of the Report of the
NACEPT Title VI Implementation Advisory Committee, this has been a very
difficult process for our organization. Our rity is growing at a remarkable rate which
has really created an overwhelming situation in terms of the local work of our
organization. Things are only made worse by the fact that our dty officials and the
state and federal agencies which have jurisdiction over the issues on which we
work only cetxn io make our struggle more difficult
W« hav« tkken time away from our local work. W« have t&en time away from
fundraising for our organisation that struggles to survive from one year to the next
And we have taken time away from our families and friends lo participate in this
process. We do not have the luxury of sending our lawyers and our consultants to
participate for us as does industry- We do not nave the luxury of having engineers
and analysts under our employ to review and analyze things for us as our
counterparts in state government We have had to do this on our own.
ss
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Tn. MHK 18 -yy lU'.^b NO.UU5 KUf
c.c_. =>co
NO. : 4729922 S.p. 05 1993 04:57R1 P2
Although we did provide comments on th* II4/99 Draft Committee Report our
comment* were incomplete. The document we were asked to review was very
lengthy (about 75 pages) and was very difficult to understand. This was a document
prepared not byour nand but bythe hand of the "expert*" you have hired, and they
hav« prepared a document written in * language understandable to other 'experts"
and not necessarily to the people who will be most impacted by the
recommendations of this committee. Somewhat troubling is the fact that the report
presents th* drafters' impression* of the deliberations of ell the working groups of
which only those of mitigation working group are familiar to us. Further, it was not
possible for us to complete our review of the report because a revised section of the
document (Le.,The Template of State Programs) was releawd only two weeks prior
to the comment deadline and was considerably longer than th« section thai we were
initially given to review. It is unclear to us why such Q change wa» even allowed.
While we did no* so much *o have on opportunity to prepare comments on "The
Template ol State Programs,* our counterparts in state government (through EGOS)
actually submitted their own template for a model state environmental justice
program. Thus, it is our (ear that this section of the report will bv particularly
skewed in favor of industry and state government. While the grassroots Title VI
Technical meeting held in Dallas, Texas last week was a good first step toward
inclusion of grassroots groups, they too were reviewing the Title VI
Implementation Advisory Committee report at a disadvantage. Cnuwroolj
environmental justice organizations n»*d resources to review such impacting
documents as a group.
A final not* on process. Numarous grassroots environmental justice organizations
have submitted comments to this committee at various tUges of the process.
Specifically, there are comments which the Southwest Network for Environmental
and Economic Justice (SNEEJ) submitted which do nol se*m to b» adequately
reflected in the report. To ignore the comnwnts of these typw of organirarions is
not just irresponsible but a show of utter disrespect to these communities.
While we do want to express our sincere gratitude for allowing us to serve on this
committee, we feel that the process which has been undertaken thus far i*
fundamentally flawed for th* reason* outlined above. Because we cannot in good
conscience vot« to approv* riu* zwport we therefore chaovr to abstain.
Sincerely
^^—U<~y~
Susan* Almanta - PODER
M«tnbcr, NACEPT Title VI Implementation Advisory Committee
cc Elliot Laws, Chair/ Title VI implementation Advisory Committee
Hay wood TunvnUne, Chair/ National Environmental Justice Advisory
Committee
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JPi.. ,^.~~.M, , ^ i.u- _«« ^SILl8'99 10:36 No.003 P.08
ROf, : FOX NO. : 4729922 Sep. 85 1998 B4:58PD P3
Carol Borwncr, Administrator US EPA
Members of NACEPT Title VI Implementation Advisory Coinmittt*
Richard Moore, SNEEJ
Tom Goldtootiv Indigenous Environmental Network
Connie Tucker, Southern Organizing Committee
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FRX ND. :
-> -
People Organized in Defense of Earth and her Resources
March 10, 1999
Ann E. Goode, Director
Office of Civil Rights (1201)
US Environmental Protection Agency
401 M Street, S.W.
Washington, DC 20460
Re: Additional Comments for Final Report of the Title VI Implementation Advisory
Committee to include in appendices
Dear Ms. Goode:
PODER is submitting two additional comments to be added to the appendices of the Title
VI Implementation Committee final report.
First, there is great concern that demographics for communities bringing Title VI
complaints be fair and accurate. There are many ways that the racial demographics of an
area can be characterized and it is crucial that the community be involved in the process of
analyzing the demographics of their own area.
Second, the Select Steel decision revealed a lack of due process for community members
bringing aTitle VI complaint. Citizens were not given an opportunity to review or rebut
evidence of Civil Rights in their decision depended largely on information and testimony
furnished by the state agency, which the citizens had no chance to review or comment on.
Both the above issues will have a large impact on how pur Title VI complaints are resolved.
I have discussed these issues with others representing Title VI communities who agree they
are important points to be raised.
There must be a total commitment by the Office of Civil Rights US EPA to environmental
justice.
Sincerely
Susana Almanza- PODER
Member, NACEPT Title VI Implementation Advisory Committee
Appendix 2: Additional Views
000009
55 /Vorf/j tH »< Hlltea
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Members of the Title VI Implementation Advisory Committee
Mr. Elliott Laws, Chair
Title VI Implementation Advisory Committee
Patton Boggs
Washington D.C.
Mrs. Sue Briggum, Director
Government and Environmental Affairs
Waste Management
Washington D.C.
Dr. Robert Bullard
Environmental Justice Resource Center
Clark Atlanta University
Atlanta, Georgia
Mrs. Cherae Bishop, Director
Energy and Natural Resources
National Association of Manufacturers
Washington D.C.
Mr. John Chambers
Brownfields Business Information Network
[at Arent, Fox, Kitner, Plotkin and Kahn]
Washington D.C.
Mr. Luke Cole
Center on Race, Poverty and the Environmen|
California Rural Legal Assistance Foundation
San Francisco, California
Mrs. Alexandra Dunn, Counsel
Chemical Manufacturers Association
Arlington, Virginia [Resigned from the Committee]
Mr. Dell Perelman, Senior Assistant General Counsel
Chemical Manufacturers Association
Arlington, Virginia [Replaced Mrs. Dunn on Committee]
Ms. Eileen Gauna, Professor
Southwestern Law School
Los Angeles, California
1
Appendix B: List of Committee Members
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Members of the Title VI Implementation Advisory Committee (CONT.)
Mr. Tom Goldtooth
Indigenous Environmental Network
Bemidji, Minnesota
Dr. Walter Handy, Jr., Assistant Commissioner
Cincinnati Department of Health
Cincinnati, Ohio
Mr. Russell Harding, Director
Michigan Department of Environmental Quality
Lansing, Michigan
Mrs. Lillian Kawasaki, General Manager
Environmental Affairs Department
City of Los Angeles
Los Angeles, California
Mr. Richard Lazarus, Professor
Georgetown University Law Center
Washington D.C.
Mr. Charles Lee, Director of Environmental Justice
United Church of Christ
New York, New York
Mr. Barry McBee, Commissioner
Texas Natural Resource and Conservation Commission
Austin, Texas [Resigned from Committee]
Mrs. Jody Henneke, Director
Office of Public Assistance
Texas Natural Resources and Conservation Commission
Austin, Texas [Replaced Mr. McBee on Committee]
Mr. Langdon Marsh, Director
Oregon Department of Environmental Quality
Portland, Oregon
Mr. Richard Monette, Professor
University of Wisconsin Law School
Madison, Wisconsin
000014
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Members of the Title VI Implementation Advisory Committee (CONT.)
Mr. Richard Moore, Coordinator
Southwest Network for Environmental and Economic Justice
Albuquerque, New Mexico
Dr. Jane T. Nishida, Secretary
Maryland Department of the Environment
Baltimore, Maryland
Mrs. Peggy Shepard, Executive Director
West Harlem Environmental Action, Inc.
New York, New York
Mr. Robert Shinn, Commissioner
New Jersey Department of Environmental Protection
Trenton, New Jersey
Mr. Gerald Torres, Associate Dean for Academic Affairs
University of Texas Law School
Austin, Texas
Mr. Haywood Turrentine
Laborers' District Council of Education and Training Trust Fund
Exton, Pennsylvania
The Honorable Rosemary Corbin, Mayor
City of Richmond, California
Mrs. Susana Almanza, Director
People Organized in Defense of the Earth and her Resources
Austin, Texas
Mr. John Gibson, President
African-Americans for Environmental Justice
Brooksville, Mississippi
000015
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National Advisory Council for Environmental
Policy and Technology
Federal Advisory Committee
Appendix-C: Workgroup I Membership
List and Draft Report on Assessment
000016
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WORKGROUP I: ASSESSMENT
REPORT
October 20,1998
00001?
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Title VI Implementation Advisory Committee: Workgroup I
Mr. Luke Cole
Center on Race, Poverty and the Environment
California Rural Legal Assistance Foundation
San Francisco, California
The Honorable Rosemary Corbin, Mayor
City of Richmond, California
Mr. Russell Harding, Director
Michigan Department of Environmental Quality
Lansing, Michigan
Mr. Charles Lee, Director of Environmental Justice
United Church of Christ
New York, New York
Mr. Richard Monette, Professor
University of Wisconsin Law School
Madison, Wisconsin
Dr. Jane T. Nishida, Secretary
Maryland Department of the Environment
Baltimore, Maryland
Mr. Dell Perelman, Senior Assistant General Counsel
Chemical Manufacturers Association
Arlington, Virginia
Mr. Haywood Turrentine
Laborers' District Council of Education and Training Trust Fund
Exton, Pennsylvania
00001$
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(OCTOBER 19,1998)
REPORT OF WORKGROUP I: ASSESSMENT
I. INTRODUCTION
Workgroup I had two overarching principles that guided its approach to developing a set of
recommendations regarding an assessment process for dealing with potential Title VI
situations.
First, it is in everyone's (all stakeholders')1 interest to have an accessible, predictable, precise,
and transparent system for addressing situations with potential Title VI complaints. Clarity
and uniformity on assessment frameworks, definitions, protocols, and thresholds are critical
to making this possible. Second, it is important to focus on a prospective strategy; the
committee strongly urges the development of a proactive program that would identify and
avoid potential impacts and thus prevent or significantly lessen the likelihood of Title VI
complaints.
Assessment questions play a key role in making these two principles a reality for state and
local environmental permitting agencies.2 The logic for this is compelling; the more we are
able to successfully identify a potential hotspot, and determine and implement the proper
form of intervention, the less likely a potential hotspot will develop into a situation where
complaints would be filed or litigation required.
In the committee's opinion, questions of assessment are critical for two significant reasons.
First they form the basis for basic understandings and working definitions of what constitutes
a protected group, an impacted community and disparate impact. Specifically, the
Committee has developed a set of factors or criteria3 for determining the applicability of Title
VI to a proposed facility or the renewal of a permit for an existing facility. In addition, a
second product is a set of indicators of when a community meets the profile of a potentially
"impacted community." This product offers programmatic and administrative guidance for
developing and maintaining a coherent outreach and networking effort along with an
effective early warning system for the state and local permitting agencies.4 Second,
assessment is an important element of any operational program because it provides the
thresholds and benchmarks for triggering certain types of actions.
1 In the Title VI context, most prominent stakeholders include but are not
limited to affected communities, business, government (federal, state, local),
and others .
2 The committee wishes to emphasize that similar principles apply to
regulatory programs as well as programs of potential applicant groups, either
individual corporations, trade associations or others.
3 Get definition of factor, criteria, and standard. (Other words are
principles, measure,
* We need some language on purpose of a set of factors . We also need language
on purpose of having a set of indicators for profile of an impacted community.
'000019
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The Committee has developed a framework that makes use of two approaches — prospective
and retrospective — to help all stakeholders assess potential Title VI cases. The prospective
approach is designed to be used by permitting agencies and permit applicants before a project
is permitted, to identify and avoid potential Title VI problems. The retrospective approach is
designed to help guide EPA in its assessment of actual Title VI complaints should such
complaints be filed.
The prospective approach involves two levels of assessment or screening, the general
screening for potential communities of concern based on demographics and overall
environmental burden, and a site-specific screening of such communities for actual impact.
These levels of assessment are discussed in more detail in Section V, below.
The prospective approach uses broader definitions and casts a wider net than the retrospective
approach, with the idea that "an ounce of prevention is worth a pound of cure." By broadly
defining concepts such as "community" and "impact" on the front end, the goal is to identify,
examine, mitigate and avoid potential impacts to protected classes which might otherwise
develop into a Title VI complaint. Because the prospective approach is undertaken by
permitting agencies (and permit applicants), the definitions used in it are different from those
narrower definitions that might be used in the retrospective approach once a case has entered
legal review.
II. BASIC PRINCIPLES FOR UNDERSTANDING THE ASSESSMENT OF
POTENTIAL COMMUNITIES OF CONCERN
GENERAL: At each level of assessment (of the community, and of the actual and potential
impacts) it is important to recognize that there is not a "one size fits all" approach that will
work in every one of the myriad of situations across the country. Thus, in defining
"community" and "impacts," and assessing them, EPA should provide several examples to
offer guidance to all stakeholders as to how these terms might be used in the assessment
process.
The definition and assessment of communities and impacts is both a quantitative and
qualitative exercise; each approach is important, and each has limitations. The definition
should be site specific.
In the prospective assessment, it is critical and is in the interests of all stakeholders to
recognize and respond to the interests of the affected community as early as possible, before
stakeholders (including community residents) become hardened into rigid positions.
IMPACT. Impacts must be discrete, identifiable and traceable to a specific permitting action.
It is important in some situations to look at cumulative impacts across different media (air,
water, etc.).
There was consensus on the committee that the following impacts, if they are under the
jurisdiction of the permitting agency, should be examined in the prospective approach; a
of the committee felt that the impacts were cognizable if they were caused by a permitting
agency whether or not they were within the jurisdiction of that agency. This report does not
000020
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purport to address the threshold question of law whether permitting agencies are responsible
for impacts outside their jurisdiction which may result from their actions. Our doing so,
however, should in no way be seen as reflecting workgroup consensus on that legal issue.
The workgroup simply decided to postpone consideration of that difficult issue and to move
on to the related policy issues so as to avoid the difficulty of the former preventing us from
providing EPA with possibly valuable input regarding the latter. Impacts to be examined in
the prospective approach may include the following:
Human health impacts caused by an agency's action, including actual illness or
injury, risk of illness. Psychological and mental health impacts were agreed to by
[Luke, Charles, Rosemary, Haywood and Richard]; not agreed to by [Russ, Dell and
Art].
Environmental impacts, including air, water, land, noise, traffic, aesthetics, odor and
blight.
Direct or indirect destruction or disruption of natural resources, including species.
Impacts to cultural, religious, spiritual and archaeological resources.
[to be discussed:] Cumulative, multiple and synergistic impacts.
DISPARATE IMPACT: Understanding of the concept of disparate impact requires the
application of common sense that is based upon the appreciation and direct knowledge of the
local conditions of the affected community. Disparate impact almost never occurs in
isolation; therefore, it is necessary to carry out a holistic analysis. As well as environmental
impacts, disparate impact can refer to the exclusion of a community from the permitting
process, from the decision-making process, or both. The process for measuring disparate
impact should be predictable, precise, inclusive, transparent and accessible. The committee
has defined "disparate impact" in the glossary.
ASSESSMENT TOOLS. A variety of tools should be developed that would serve to
examine different situations that might arise. The tools for measurement might include the
use of geographic information systems, community impact analysis, proximity and exposure
modeling, or a combination of all of these and other tools. The two prevailing methods now
being used by EPA and a number of communities for measuring disparate impact are
proximity analysis and exposure modeling. Regardless of which method is used, as much
real data (as opposed to projections, estimations or modeling) as possible should be used.
The tools must be accessible to potential complainants as well as to industry seeking permits
and to state and local government regulators; the measurement analysis process should meet
the needs of permitting agencies, applicants and affected communities. In designing the
analysis, it is important to have appropriate and effective approaches to involving the
community up front. The early inclusion of the community in the measurement analysis will
enhance the accuracy and predictability of the process.
Further discussion is necessary to determine how best to include the affected community (not
to the exclusion of other stakeholders). __ _
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The assessment tools — for measuring disparate impacts and cumulative impacts, among
others — should be based on sound, scientifically valid methodology, developed through a
peer reviewed process meaningfully involving and accessible to all stakeholders. The
scientific peer review process for measurement analysis should be balanced and objective.
III. FACTORS FOR IDENTIFYING "COMMUNITIES OF CONCERN"
There are two basic factors which come into play when identifying communities of concern
for purposes of determining potential applicability to Title VI, i.e., 1. Demographic factor,
and 2. Environmental impact (or burden) factor.
A. Demographic Factor
The first step is to identify minority communities for which Title VI concerns might arise.
Several approaches have been suggested for how to do this.
(1) The minority percentage of the population within the area affected by the facility
exceeds the average minority percentage within the reference area, in most cases the
jurisdiction of the permitting agency.
(2) The minority percentage of the population is 25% or more greater than the average
minority population within reference area, again the jurisdiction of the permitting
agency. (I.e., if the state average minority population is 10%, than any community
with a minority representation of 12.5% or greater would be a "community of
concern.")
(3) Does CEQ call for a different standard?
Discuss relative strong and weak points of the different above approaches?
B. Environmental Impact/Burden Factor
Second, the permitting agency would determine whether any of the communities identified in
#1 above are currently under a substantial environmental burden. (For the prospective
approach, this burden need not meet a standard for disparate impact, should one be
established. Such a standard would be important for the retrospective evaluation.) Again,
some standards for environmental burden have been suggested.
Language from CEQ Environmental Justice Guidance:
Disproportionately High and Adverse Human Health Effects: When determining whether
human health effects are disproportionately high and adverse, agencies are to consider the
following three factors to the extent practicable:
Whether the health effects, which may be measured in risks and rates, are significant
(as employed by NEPA), or above generally accepted norms. Adverse health effects
may include bodily impairment, infirmity, illness, or death; and
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Whether the risk or rate of hazard exposure to an environmental hazards by a
protected population is significant (as employed by NEPA) and appreciably exceeds
or is likely to appreciably exceed the risk or rate to the general population or other
appropriate comparison group; and
Whether health effects occur in a protected population affected by cumulative or
multiple adverse exposure from environmental hazards.
Disproportionately High and Adverse Environmental Effects: When determining whether
environmental effects are disproportionately high and adverse, agencies are to consider the
following three factors to the extent practicable:
Whether there is or will be an impact on the natural or physical environment that
significantly (as employed by NEPA) and adversely affects a protect group. Such
effects may include ecological, cultural, human health, economic or social impacts on
protected communities when those impacts are interrelated to impacts on the natural
or physical environment; and
Whether environmental effects are significant (as employed by NEPA) and are or
may be having an adverse impact on protected populations that exceeds or is likely to
appreciably exceed those of the appropriate reference group; and
Whether the environmental effects occur or would occur in a protected community
affected by cumulative or multiple adverse exposure from environmental hazards.
It is the combination of these two factors that will lead to a determination of a community of
concern.
The workgroup recommends the implementation of early intervention strategies, including
proactive outreach to communities of concern regarding any proposed new facility or permit
renewal for existing facilities. The purpose of the outreach will be to address any community
concerns, whether or not they rise to the level of disparate impact or other legally determined
issues. Such outreach/involvement strategies will require permitting agency initiatives and
support to permittees.
IV. INDICATORS WHEN A COMMUNITY MEETS PROFILE OF POTENTIALLY
IMPACTED COMMUNITY
Introductory explanation
List of examples
The purpose of this set of indicators is to provide a useful diagnostic tool for state and local
permitting agencies, [sentence needed] In another words, this set of indicators is not meant
009023
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to establish a legal test of whether or not a community situation violates Title VI. Rather it is
meant to help the permitting agency more effectively realize when a potential Title VI
situation may exist and thus fashion an effective early intervention.
This list of potentially cognizable impacts will then become the list of indicators of when a
community meets the profile of a potentially "impacted community." And thus offer
programmatic and administrative guidance for developing and maintaining a coherent
outreach and networking effort along with an effective early warning system for the states.
V. OPERATIONALIZING THE ASSESSMENT PROCESS
In order to operationalize the above definitions and understandings, we also need to develop
an administrative/programmatic framework into which these can become operationalized.
We need to step back and define the purpose for which we are developing these definitions
and fit the definitions into an administrative/programmatic framework that is compatible with
the principles, needs and constraints of state, federal or other environmental justice programs.
The group agreed to develop a framework that makes use of two assessment approaches, one
prospective and the other retrospective. The committee makes a distinction between
administrative/programmatic (prospective) vs. legal (retrospective) purposes. The committee
makes a distinction in its approaches between the prospective approach — to be used by
permitting agencies and permit applicants — and the retrospective approach, to be used by
EPA if a Title VI complaint is filed. The goal of the prospective approach is to obviate the
need for Title VI complaints, by broadly defining potential communities of concern,
discovering potential problems, and addressing them in the context of the permitting process
so that complaints are not filed.
The prospective approach consists of two steps, the first a general screen based on
community demographics and overall environmental burden, and the second a screen based
on actual impact to a community.
A. Prospective Approach
1. Tier 1: General Screening. The purpose of the general screening is to identify
environmentally overburdened minority areas (as well as other environmental justice areas).
This is an ongoing process of data collection and maintenance—both quantitative (e.g., census
data) and qualitative (e.g. "cursory" community profiles)—for purposes of having a full
understanding of the terrain and screening for identifying areas which warrant further
examination.
Tier 1 refers to the pre-permitting process. The general screening refers to an on-going
process of quantitative and qualitative data collection for the purposes of having a fall
understanding of the terrain and screening for identifying areas which warrant further
examination. While the committee does not advocate a mandatory process, it does note that
such a screening process must be in place in order to coherently address communities with
potential Title VI complaints. Such an ongoing process is critical for developing a coherent
methodology could be developed for community outreach and networking. The general
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screening should function as an early warning system. Finally, it is useful for strategic
planning, deployment of staff and resources.
Objectives/ Activities:
* Develop basic demographic information system and accumulate information on areas with
high environmental burdens or other potential problems.
* Use information of education of key staff and integration into day to day activities (as
outreach and early warning system).
* Develop statewide Geographic Information System (GIS) capacity.
* Develop standard set of community profiles.
* Develop a coherent methodology for community outreach and networking.
2. Tier 2: Site Specific Intervention.
Tier 2 refers to in-depth site-specific assessment for the purposes of designing and
implementing interventions. This involves in-depth site-specific assessment for purposes of
designing and implementing interventions
a. Objectives/Activities:
Outreach/relationship building
Site visits/community meetings/hearings
Detailed community profiles
Ongoing monitoring
Dispute resolution and mediation activities
Pilot projects and other interventions
Proximity and exposure modeling
Cumulative impact analysis
Early or special notification procedures
b. Assessment parameters
+ proposed by Charles Lee: (See Assessment parameters for Tier 1 and add the
following criteria.)
Imminent endangerment to public health and environment, formal complaint from
community, or another event deemed worthy of triggering such intervention.
+ proposed by Russell Harding:
The action will cause an increase over the actual documented emissions and discharges
over the average for the past three years across all media.
There are documented adverse health impacts in the minority pollution from a substance
included in the emission or discharge authorized by the action.
B. Retrospective Approach: Legal Review
-------
The retrospective approach refers to an in-depth, scientifically peer-reviewed, comparative
assessment for purposes of making a determination of violation of Title VI and/or EPA's
regulations implementing Title VI.
1. Objectives/Activities
* To provide EPA a process for evaluating and deciding Title VI complaints filed with the
agency.
* By providing such input, making the complaint resolution process a predictable, timely
and inclusive process for all involved parties.
2. Assessment parameters
Disproportionate impact: A prima facie case of disproportionate impact can be made by
demonstrating that the disparity between the affected community and the reference
population is three standard deviations or greater. A presumption of disproportionate impact
can be established by demonstrating that the disparity is greater than two standard deviations.
VI. OTHER CONSIDERATIONS (To Be Written)
This section will address some of the following issues
Summary of Proposed Questions For Further Discussion (From Minutes)
Should health based (or other stressors) indicators such as those proposed by Jerome Baiter
be used as parameters? (There are both policy and technical aspects of this question.)
How does one deal sensitively with concerns about a community being stigmatized if it has
designation as a potential environmental justice area?
Regarding Tier I: Should health-based (or other stressors) indicators such as those proposed
by Jerome Baiter be used as parameters? (There are both policy and technical aspects of this
question.) How does one deal sensitively with concerns about a community being stigmatized
if it has designation as a potential environmental justice area?
Regarding Tier 3: What constitutes harm and to what extent does this figure in a
determination of disparate impact? Is a proximity and exposure analysis sufficient to
establish some standard of harm?
Regarding Tiers 1-3: What assessment parameters should be used? What are the principles
for conducting Tier 1 and 2?
In the area of definitions:
General questions: What are these definitions to be used for? What constitutes a legal
determination of a violation of the law?
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Disparate impact. The following factors are important and require further discussion and
definition:
Human health and ecological impacts, cultural impacts, religious impacts, historical and
cultural impacts on Native American communities, decreases in property values, rising noise
levels, psychological impacts, and other quality of life concerns. How do we apply the
discrete, identifiable, traceable criteria to measuring each of them, if they can be measured?
How do we further define the terms disparate impact and harm?
There is a tension between assessment of the specific permitting action and analysis of
cumulative impacts within a community. How can innovative ways of responding to both be
encouraged?
3. Impacted community.
How would these communities be defined (geographically, linguistically, culturally, via
religious practices, etc.)?
What methods or approaches should be used to identify and to determine the interests of the
impacted community? Central to this is the role of public participation, which needs to be
better understood, defined and applied.
How can we look more effectively at community-wide impact, not just facility impact?
4. Plausible approaches for measuring disparate impact. How can we ensure the involvement
of an accurate representation of the community throughout the process?
5. Cumulative Risk.
What does the business community consider when it does a cumulative risk analysis?
What are the factors that define predicted impact?
Is the risk assessment done correctly and how can local government and the local community
play a major role?
VII. BASIC DEFINITIONS/GLOSSARY
There are certain basic concepts that require definition. For the purposes of this report, these
should be viewed as beginning definitions that a set of factors and indicators helps to refine.
Since the subject matter referred to is a unique we do not believe that there are a "one size fits
all" definition and argues against using a perfunctory approach towards defining the entities
in question. The following are thus working definitions.
Aggregation:
00082?
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American Indian: All indigenous populations, regardless of their affiliation with a federally-
recognized Tribe.
Centroid Pull: A procedure for grouping census data; all data units (such as block groups)
with centroids (geometric centers) that fall within a defined radius from a central point are
included in the analysis.
Community: A community is either a group of individuals living in geographic proximity to
one another, or a set of individuals (such as migrant workers or Native Americans), which
experiences common conditions.
Protected Group or Community: Communities/groups protected under Title VI of the Civil
Rights Act of 1964 are those which have a substantial population of persons who are
members of the following population groups: American Indian or Alaskan Native; Asian or
Pacific Islander; African American, not of Hispanic origin; or Hispanic.
The selection of the appropriate unit of geographic analysis maybe a governing body's
jurisdiction, a neighborhood, census tract, or other similar unit that is to be chosen so as to
not artificially dilute or inflate the affected population group (minority or protected group) in
question. A [minority] population also exists if there is more than one minority group
present and the minority percentage, as calculated by aggregating all [minority] persons,
meets one of the above-stated thresholds.
Reference Area/Population: The reference population to be used in the assessment
described in this document is the population within the jurisdiction of the permitting agency.
For example, if the permitting agency is a state agency, the reference population is the state's
population; if the permitting agency is a county, the reference population is the county's
population.
Geographic Information System:
Impact:
Environmental Impact: Environmental impacts (burdens) are adverse human health or
environmental effect on a particular community or segment or the population related to a
specific source or sources, resulting from cumulative or area-wide sources, and/or resulting
from inadequate or inappropriate application of government authorities.
Disparate Environmental Impact:5 The Council on Environmental Quality captures this
5 A concise definition for this has yet to be developed. I included the above
CEQ definition in full because I wanted the Workgroup to see it in full. I
placed brackets around the term [low-income population or Indian tribe].
Title VI does not apply to income; nor is it clear exactly how Title VI
applies to Indian tribes. In addition, there are other references which must
be changed. I placed this definition here as well as in the section on
Factors For Identifying Communities Of Concern. The above is really a set of
factors to consider and would more appropriately be placed under the Factors
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concept in the following definition provided:
Disproportionately High and Adverse Human Health Effects: When determining whether
human health effects are disproportionately high and adverse, agencies are to consider the
following three factors to the extent practicable:
Whether the health effects, which may be measured in risks and rates, are significant (as
employed by NEPA), or above generally accepted norms. Adverse health effects may
include bodily impairment, infirmity, illness, or death; and
Whether the risk or rate of hazard exposure to an environmental hazards by a protected
population is significant (as employed by NEPA) and appreciably exceeds or is likely to
appreciably exceed the risk or rate to the general population or other appropriate
comparison group; and
Whether health effects occur in a protected population affected by cumulative or multiple
adverse exposure from environmental hazards.
Disproportionately High and Adverse Environmental Effects: When determining whether
environmental effects are disproportionately high and adverse, agencies are to consider the
following three factors to the extent practicable:
Whether there is or will be an impact on the natural or physical environment that
significantly (as employed by NEPA) and adversely affects a protect group. Such effects
may include ecological, cultural, human health, economic or social impacts on protected
communities when those impacts are interrelated to impacts on the natural or physical
environment; and
Whether environmental effects are significant (as employed by NEPA) and are or may be
having an adverse impact on protected populations that exceeds or is likely'to appreciably
exceed those of the appropriate reference group; and
Whether the environmental effects occur or would occur in a protected community
affected by cumulative or multiple adverse exposure from environmental hazards.
Low-income population: Low-income populations in an affected area should be identified
with the annual statistical poverty thresholds from the Bureau of the Census Current
Population Reports, Series P-60 on Income and Poverty. In identifying low-income
populations, agencies may consider as a community either a group of individuals living in
geographic proximity to one another, or set of individuals (such as migrant workers or Native
Americans), where either type of group experiences common conditions of environmental
exposure or effect. (CEQ Environmental Justice Guidance)
Process impacts: Process impacts can include process violations, including no or inadequate
Section. However, a. more concise definition based upon this and other ideas
neeas to te developed. 0006L'9
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notice, linguistic exclusion or discrimination, or disparate treatment in the permitting process.
VIII. APPENDICES
Loren Hall Presentation
Region V EJ Policy Summary
Region II EJ Policy Summary
Presentation on Cumulative Impact Analysis
IX. LEGAL QUESTION FOR EPA TO RESOLVE:
Are permitting agencies responsible for impacts outside their jurisdiction which may result
from their actions? For example, would a state granting a hazardous waste permit be liable
under Title VI for the discriminatory impacts of traffic patterns.
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National Advisory Council for Environmental
Policy and Technology
Federal Advisory Committee
Appendix D: Workgroup II Membership
List and Draft Report on Mitigation
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WORKGROUP II: MITIGATION
REPORT
The Role of Mitigation in EPA's Guidance for Title VI
Administrative Complaints Challenging Permits
November 16,1998
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Title VI Implementation Advisory Committee: Workgroup II
Mrs. Susana Almanza, Director
People Organized in Defense of the Earth and her Resources
Austin, Texas
Mr. John Chambers
Brownfields Business Information Network
[at Arent, Fox, Kitner, Plotkin and Kahn]
Washington D.C.
Mrs. Lillian Kawasaki, General Manager
Environmental Affairs Department
City of Los Angeles
Los Angeles, California
Mr. Richard Lazarus, Professor
Georgetown University Law Center
Washington D.C.
Mr. Richard Moore, Coordinator
Southwest Network for Environmental and Economic Justice
Albuquerque, New Mexico
Mrs. Peggy Shepard, Executive Director
West Harlem Environmental Action, Inc.
New York, New York
Mr. Robert Shinn, Commissioner
New Jersey Department of Environmental Protection
Trenton, New Jersey
Mr. Gerald Torres, Associate Dean for Academic Affairs
University of Texas Law School
Austin, Texas
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November 16,1998
WORKGROUP II REPORT
The Role of Mitigation in EPA's Guidance
for Title VI Administrative Complaints Challenging Permits
L Introduction and Background
In EPA's Interim Guidance for Investigating Title VI Administrative Complaints
Challenging Permits, EPA discusses at some length the role of "mitigation." The Guidance
states in pertinent part:
EPA expects mitigation to be an important focus in the Title VI process, given the
typical interest of recipients in avoiding more draconian outcomes and the difficulty that
many recipients will encounter in justifying an "unmitigated," but nonetheless disparate
impact. In some circumstances, it may be possible for the recipient to mitigate public
health and environmental considerations sufficiently to address the disparate impact.
The sufficiency of such mitigation should be evaluated in consultation with experts in
the EPA program at issue. OCR may also consult with complainants. Where it is not
possible or practicable to mitigate sufficiently the public health or environmental
impacts of a challenged permit, EPA will consider 'supplemental mitigation projects"
("SMPs"), which, when taken together with other mitigation efforts, may be viewed by
EPA as sufficient to address the disparate impact. An SMP can, for example, respond to
concerns associated with the permitting of the facility raised by the complainant that are
not otherwise redressable under Title VI (i.e., because they are outside those
considerations ordinarily entertained by the permitting authority).
EPA's Interim Guidance, page 11.
Although the guidance is somewhat ambiguous, EPA seems to be using the term
"mitigation" in two different ways. The first kind of mitigation appears to involve measures that
directly "address" the disparate impact itself by mitigating the "public health and environmental
considerations" that are themselves the source of that disparate impact. The mitigation, in effect,
eliminates the disparity.
The second kind of mitigation appears to be more broad-based. It takes the form of
"SMPs" that "respond to concerns associated with the permitting of the facility..." (emphasis
added). As characterized by EPA, these concerns-extend to "considerations" that are "outside
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those" within the ordinary scope of factors relevant to the permitting authority. Presumably,
such considerations may extend to other kinds of actions that address the affected community's
"public health and environmental"' concerns. They might also extend, in theory, to considera-
tions other than public health and environmental concerns. EPA states that such mitigation
measures "may be viewed by EPA as sufficient" to address the disparate impact. Presumably,
EPA chose the "may be viewed" language deliberately in order to obscure that this second kind
of mitigation measure does not in fact eliminate the disparate impact.
Finally, in discussing the development of mitigation options, EPA's interim guidance
discusses procedures for determining their sufficiency. The guidance states that EPA "should"
consult with "experts" within the Agency. And the guidance provides that EPA staff "may" also
consult with the "complainants."
The workgroup identified several issues related to mitigation policy. Some of those
issues related to the lawfulness, in the first instance, of the entire notion that any mitigation short
of an actual elimination of the disparate impact itself could be sufficient to render lawful what
would otherwise amount to a violation of EPA Title VI regulations' nondiscrimination mandate.
Other issues relate to the secondary question whether, assuming that mitigation can play a lawful
role within the context of Title VI regulations, it is sound policy for EPA to do so. These policy
issues, in turn, relate to both the substance and procedure of sound mitigation policy, including
the proper scope of valid mitigation measures as well as the procedures that should be followed
to ensure meaningful and active community involvement in the development of those measures
and in their implementation.
An important issue, related to mitigation procedure, concerns whether the filing of a Title VI
complaint with EPA should stay the effectiveness of a permit pending resolution of the
complaint. The absence of any such stay plainly limits the types and effectiveness of mitigation
measures that might be available in the event that EPA concludes that the permitted facility
otherwise presents a disparate impact. On the other hand, the automatic imposition of a stay
could adversely affect the interests of the entity seeking a permit. The questions whether a Title
VI complaint should always, never, or only when specified criteria are met (e.g., complaint
formally accepted by EPA), stay the effectiveness of a permit that is the subject of the complaint
are clearly extremely important matters for the Agency to address. But while the EPA's answer
to these legal and policy issues are important for mitigation, it remains a threshold matter the
relevance of which extends far beyond mitigation alone. For this reason, we do not address the
issue further in this report other than to emphasize its potential significance for mitigation policy
and to urge the Agency to consider that relationship in deciding whether the filing of a Title VI
complaint should be deemed to stay the effectiveness of those permit(s) being challenged.
Nor does this report purport to address the threshold questions of law whether mitigation
policy is lawful under Title VI and EPA's implementing regulations or whether EPA may,
consistent with Title VI, consider the issue of "justification" prior to the availability of
"mitigation." For the purposes of this memorandum, the lawfulness of each will be assumed.
Our doing so, however, should in no manner be seen as reflecting workgroup consensus on either
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of these legal issues. The workgroup simply decided to postpone consideration of these issues
and to move on to the related policy issues so as to avoid the difficulty of their preventing us
from providing EPA with possibly valuable input regarding the latter. In addition, it was the
general consensus of the. workgroup that its expertise lies more in providing EPA with advice
regarding sound policy than in purporting to be "legal experts" advising the Agency about the
bounds of the law. The purpose of this report, therefore, is to discuss the merits of alternative
ways of addressing various secondary, policy issues regarding sound mitigation policy based on
the assumption that some mitigation policy is lawful.
This report is accordingly, divided into three parts. The first part discusses the pros and
cons of different approaches to the possible substantive scope of mitigation policy. And, the
second part discusses the pros and concerns of different approaches to procedural issues related
to mitigation policy. The final part of the report presents areas of agreement reached by the
workgroup. These points of consensus are expressed in terms of both specific findings and
recommendations. Because, moreover, the workgroup identified several threshold legal issues
that, while outside the scope of our inquiry, were nonetheless relevant to mitigation policy, each
of these issues is reiterated in the final, conclusory section of the report in either our findings or
recommendations.
IL Substantive Scope of Mitigation
There are, of course, infinite ways in which one could define the substantive scope of
acceptable mitigation policy. For the purposes of this report, however, it is helpful to select out
several of the more obvious approaches in order to compare and contrast their relative
advantages and disadvantages. These approaches range from very narrowly-defined mitigation
measures to more sweeping, flexible approaches. Three such possible approaches are described
below and then some of the relevant considerations in choosing one rather than another are
outlined.
A. Possible Approaches For Defining Permissible Mitigation — From
Narrow to Broad
The principal characteristic distinguishing the three approaches described in more detail
below is the extent to which each requires that the mitigation measure address the source of the
disparity in impact that serves as the basis for the Title VI complaint. This relationship between
the mitigation measure and the disparity in impact can be referred to as the "nexus." Simply
stated, the most narrow approach demands that the mitigation measure address that impact most
directly. In other words, the required nexus between the mitigation measure and the initial
disparity is very tightly drawn. By contrast, the broader approaches are less demanding in their
requirements of a narrowly-drawn nexus. They are much more willing to accept as proper
mitigation measures those that address concerns of the community other than those that serve as
the basis of the disparity.
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But for this same reason, the extent to which a "narrow" approach differs as a practical
matter from a "broad" approach necessarily turns on the scope of the impacts that are relevant in
deciding whether a disparity exists in the first place. For example, if the scope of impacts
relevant to deciding whether a disparity exists is very broadly defined, then even a very
narrowly-defined mitigation policy would necessarily allow for broad-based mitigation
measures. It is relatively easy to establish a nexus between the mitigation measure and the
disparity if the disparity itself is broadly defined. And, conversely, if the disparity is narrowly
defined, it is that much harder to claim that a mitigation measure directly addresses it.
There is, accordingly, an unavoidably elusive quality to any discussion of mitigation
policy so long as EPA has not yet clearly decided on the scope of concerns relevant to the central
"disparate impact" inquiry. A distinct, but related over-arching concern, is the lack of a clear
definition of what constitutes the adversely-affected "community" for purposes of determining
whether the impact is "disparate" and in fashioning community participatory rights. The
workgroup has identified these fundamental problems, but decided not to allow their existence to
prevent our undertaking analysis of mitigation issues. Our concern is that the entire FACA
process would otherwise be paralyzed as consideration of each issue would be postponed until
the other was first resolved.
1. Narrow Nexus Approach
The narrowest approach to mitigation policy would be to propose that the only viable
mitigation is that which directly addresses the disparity in impact that is the basis of the
discrimination claim. The mitigation measure would, moreover, have to eliminate the disparity
and do so more immediately.
If, therefore, the disparity is that the community would suffer greater adverse health
effects from exposure to certain pollution, then the validity of a proposed mitigation measure
would turn on whether it eliminated the disparity (or at least its own contribution to that
disparity) in adverse health effects from that same pollution. Or, if the disparity was in the
community's exposure to high levels of pollutants (without any need to demonstrate actual
adverse health effects), then the mitigation measure would have to reduce the levels of pollutants.
In either scenario (adverse health effects or pollutant levels), any other less direct and absolute
tradeoff would be unacceptable because it would, in effect, allow discrimination to continue.
2. Moderate Nexus Approach
A more moderate approach to mitigation policy would be to propose that mitigation
measures must relate to the same type of concerns that are the source of the disparate impact.
The mitigation measure need not, however, either eliminate that impact altogether or address it
directly. The mitigation measure might also deliver its benefits less immediately than under the
narrow approach.
For instance, if the disparity in impact relates to risks of adverse health effects caused by
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elevated levels of pollution, then any mitigation measure that reduces the health risks faced by
the community could be acceptable. The proposed mitigation might seek to reduce health risks
caused by other kinds of pollutants or even other kinds of activity. Or the mitigation might even
seek to provide better health care facilities, treatment, or screening in order to reduce the risks
associated with the operation of the facility seeking a permit. Or the mitigation might require
steps to minimize, more than legally required, the possibility of permit noncompliance, if such
noncompliance is a source of the risks of concern to the community. The latter might include
measures that enhanced the community's ability to participate in an advisory group to monitor
and make recommendations regarding the facility's operation and regulatory compliance.
Similarly, if the disparity in impact relates to adverse environmental effects caused by
elevated levels of pollution or more direct physical impacts on the environment of the activity
seeking a permit, then any mitigation measure that sought to reduce those effects or otherwise
improve the environmental quality of the community might be acceptable. It could be to
improve the quality or the community's enjoyment of the same resource, or the same type of
resource, or perhaps even a different environmental amenity in the community.
Finally, mitigation and the benefits that it offers may sometimes occur over time. There
is, in other words, a temporal dimension to mitigation. A mitigation measure might be
addressing a long term problem, which is not susceptible to an immediate solution with
immediate benefits. The measure may instead require a longer term planning process that
generates benefits only after many years. The tradeoff, accordingly, may depend on the
community's willingness to accept a short term increase in risk in return for a promise of
substantial benefits over the longer term.
3. Loose Nexus Approach
The broadest approach to mitigation policy would be to accept any kind of mitigation
measures that address community concerns, regardless of their relationship to that impact, so
long as the benefits to the community of those mitigation measures outweighed the facility's
adverse disparate impact. The community would, in effect, be allowed to trade off a
discriminatory impact for some other, presumably more weighty, community concern. Unlike the
moderate nexus approach, the mitigation measure would not need to address the same general
type of concerns that are the source of the disparate impact.
Under such a loose (or arguably nonexistent) nexus approach, mitigation of a disparate
impact related to elevated levels of pollution could be funds for better schools, better recreational
facilities, housing, health care facilities, job training, increased employment opportunities, or
higher wages. The bottom line would simply be to address the community's serious needs
whether or not those needs happen to coincide with the specific problems implicated by that
aspect of the facility that requires an environmental permit. The community might likewise be
more open to the acceptability of mitigation measures that provide benefits less immediately and
more over the longer term.
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B. Some of the Advantages and Disadvantages of Alternative
Approaches
The most obvious tradeoff in going from narrow to loose nexus requirements in
mitigation policy is between, on the one hand, strict adherence to the nondiscrimination principle
and, on the other hand, a desire to address the broader needs of a disadvantaged community. Title
VI, and the implementing regulations of federal agencies such as EPA, provide a
nondiscrimination mandate. As a practical matter, however, they provide the community
protected by that nondiscrimination mandate with significant legal leverage over a proposed
economic activity requiring a permit. And while that leverage may sometimes be used to prevent
the issuance of the permit altogether, the leverage also offers the opportunity for a bargain to be
struck that inures to the needs of the community. That is especially so to the extent that the
terms "discrimination" and "disparate impact" are unavoidably ambiguous.
For some, any notion of a tradeoff is wholly out of bounds. A nondiscrimination mandate
should not be the subject of a bargain. That would be tantamount to allowing the right to
discrimination to be purchased. A mitigation policy that allowed such a tradeoff would,
accordingly, be no less than an improper legal sanctioning of economic blackmail. Those who
hold that position will likely be most attracted to the narrow, more demanding nexus approach to
Title VI mitigation policy.
For others, though, such a characterization of Title VI, its implementing regulations, and
the permitting process, ignores both legal and practical realities. It is not always clear what
discrimination is and what it is not in the context of Title VI regulations and disparate impact
analysis. It is therefore not at all clear that what is being bargained away is what would
otherwise amount to a legal prohibition if the community instead sought a strict enforcement of
its legal rights. The courts might, in other words, reject such a lawsuit as lacking any legal merit.
Alternatively, those resisting a narrow nexus approach might focus on what they view to
be the practical realities. They might contend that the practical reality is that the community has
substantial, immediate and long term, compelling needs and it may be more advantageous to the
community to take full advantage of the disparate impact analysis in negotiating with a company
seeking to site a facility in the community. And, one effective way to do so, they might further
argue, is to extract commitments, concessions, services, and outright transfer of funds from the
activity requiring a permit. Advocates of this position would posit that the community must, in
other words, be ready to use those few legal advantages that it possesses in the most effective
manner possible. Someone who embraced this characterization of the regulatory permitting
process might well be attracted to the loose nexus approach to mitigation policy.
By its nature, the more middle-ground, "moderate nexus" approach has some of the
advantages and some of the disadvantages of the narrower and looser nexus approaches that lie
on either side of it. By seeking to split the difference, however, the moderate approach arguably
lacks the purity of purpose that the other two contrasting views supply. For related reasons, it
also has the disadvantage (perhaps also the advantage) of obscuring the nexus requirement and
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thereby providing both the Agency and the affected community with more discretion to
determine on a case-by-case basis what kind of mitigation should be considered.
Finally, there is a further policy argument in favor of EPA's declining to adopt a "one
size fits all" approach to mitigation. Assuming still that any one of the three approaches is
legally permissible,1 there is no rigid requirement that EPA's guidance prescribe one approach to
all situations. EPA could, for instance, embrace a hybrid approach that formally adopts one
nexus approach but allows for either looser or tighter nexus requirements under specified
circumstances.
The workgroup considered formally stating that a narrow nexus requirement always had
to be used whenever the disparate impact presented an imminent and substantial endangerment to
human health. A consensus developed regarding the relative advantages of one hybrid approach.
This approach allows for mitigation measure that satisfy a moderate nexus requirement but
nonetheless mandates that mitigation measures should always be as narrowly tailored as
reasonable and practicable.
The workgroup also discussed the possibility of EPA's simply concluding in its guidance
that it is up to the permitting authority and the affected community to decide which approach was
most sensible in the circumstances of a particular facility. This kind of decentralized approach to
mitigation would have one possible advantage from an environmental justice perspective. It
would potentially provide affected communities with more authority to decide for themselves the
proper role for mitigation, rather than have that policy issue decided nationally and imposed
uniformly on all communities.
A final variation considered by the workgroup is for EPA's guidance seeking to
distinguish between different kinds of Title VI claims and suggest that some warrant a narrower
nexus approach while others warrant a moderate or looser nexus requirement. For instance, EPA
might distinguish between circumstances depending on the source of the disparity, i.e., whether
the disparity in impact results from industrial facilities that are (or are not) permitted by the state
agency subject to EPA's Title VI regulations. The larger the universe of facilities that one
subjects to disparate impact analysis, the more justifiable it might be to adopt a looser nexus
approach. A looser disparate impact inquiry, in short, may justify a looser nexus approach.
Of course, whether such a distinction is itself appropriate depends on how EPA
ultimately resolves the threshold legal question regarding the scope of facilities relevant to the
disparate impact inquiry. That legal issue is quite controversial. States generally contend that
facilities not permitted by the state agency that is the subject of the Title VI challenge are outside
the scope of disparate impact analysis. Many community groups advance a contrary view. All
1 Please recall that this memorandum assumes away legal issues relating to mitigation
and addresses only the policy implications of choosing between alternative mitigation policies
based on that threshold assumption that each option — narrow, moderate, and loose ~ is legally
permitted by Title VI and its implementing regulations. See page 2 above.
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this workgroup can do, however, is identify the legal issue and, as we have done, point out its
relevance to EPA's fashioning of mitigation policy. We cannot purport to resolve it.
III. Procedural Issues
The procedural issues pertaining to mitigation are three-fold. First, they relate to the
development of mitigation measures that might eliminate the disparity in impact altogether.
Second, they relate to the development of supplemental mitigation projects ("SMPs") that
address the disparity, but do not purport to eliminate it. And, finally, they relate to ensuring that
mitigation measures, once adopted, are in fact implemented and achieve their intended beneficial
results.
Each of these three procedural matters raises important environmental justice concerns
because of the need for meaningful, ongoing community involvement in decisions affecting the
community's essential interests. The long-standing, persistent mistake made by government
regulators and by those in the regulated community is the failure to provide for community
involvement in the permitting process. The upshot is poorer permitting decisions, greater
misunderstandings, and greater controversies at the expense of the interests of all, but especially
the legitimate interests of the affected community. This is no less true for the mitigation
dimension to permitting decisions. Indeed, because the asserted purpose of mitigation in the
Title VI context is to identify and address the community needs, community involvement is all
the more indispensable.
At least on its face, however, EPA's interim Title VI guidance does not affirmatively
provide for such enhanced community involvement on issues related to mitigation. Quite the
opposite is true. The precise wording of the document appears to downgrade the relative
importance of consultation with the community'. While the guidance instructs that the "sufficiency
of such mitigation should be evaluated in consultation with experts in the EPA program at
issuef,"] it simultaneously provides only that EPA's Office of Civil Rights ''may also consult
with complainants. ". For community representatives, however, they are themselves the "experts"
that should be consulted on issues of mitigation.
Of course, EPA's guidance can be read more benignly. The consultation to which the guidaD
refers may be intended to relate simply to technical matters regarding the ability of a proposed
mitigation measure to work. Even so, however, the guidance is lacking for neglecting to address
explicitly the need for community involvement on those mitigation issues about which the
community does unquestionably possess the most relevant expertise.
The most logical starting point for EPA in rethinking its approach to community
involvement would be to consult and incorporate into its Title VI guidance the public
participation model developed by the Public Participation and Accountability Subcommittee of
EPA's National Environmental Justice Advisory Council (NEJAC). That guidance addresses
many of the essential participatory issues, including, but not limited to the need for notice to the
community, identification of community interests, timing and scope of public participation, and
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communication with the community. The very purpose of this model is to facilitate meaningful
public participation in agency decision making affecting the community's interests. Decisions
relating to mitigation appropriate in the Title VI context implicate just such core community
environmental concerns and raise each of the issues addressed in the NEJAC Model.
There is, moreover, a palpable need for active and ongoing community involvement in
both the threshold decision whether any mitigation is appropriate in a particular instance and, if
so, what measures constitute acceptable mitigation. After all, mitigation is designed, to some
extent, to address the complaining party's concerns in order to defuse the controversy in a
manner not unlike a settlement. Unless, however, the complaining party is allowed to participate
actively in the development of mitigation measures, those measures ultimately selected are
unlikely to accomplish that settlement objective. Because the complaining party in the Title VI
permitting context are typically community members who are aggrieved as a result of the
possibility of a disparate impact, their entitlement to meaningful participatory rights is all the
more compelling.
EPA should also look to its recently-issued guidance on public participation in the
development of supplemental environmental projects ("SEPs") in the settlement of EPA
enforcement actions. The Agency's 1995 interim revised SEP guidance was criticized for failing
to provide for sufficient community involvement in the fashioning of SEPs and the Agency
responded in its final 1998 guidance with more significant opportunities for community
involvement.2
The parallels between SEPs and SMPs, moreover, are obvious. A SEP is a project that an
alleged violator of an environmental protection requirement agrees to undertake in settling an
enforcement action brought against it. Such projects typically provide benefits directly to the
community (not the plaintiff) that was adversely affected by the violation. Although SEPs and
SMPs are fundamentally different in certain respects,3 the need for community involvement in
deciding on what kind of mitigation projects are the most appropriate is compelling in both types
of mitigation measures.
Indeed, the case for active public participation in SMPs is actually far stronger than it is
for SEPs. EPA's public participation requirements for SEPs apply to cases where the Agency is
settling its own enforcement action. Where a Title VI administrative complaint has been filed,
however, the initial complainant are typically representatives of the affected community, not the
Agency itself. For this reason, those community representatives would seem plainly entitled to
2 The 1998 guidance section on "Community Input" is reproduced in Appendix A.
3 SEPs involve the alleged violator agreeing to do something beneficial for the
environment above and beyond what the law requires (which is what justifies an associated
reduction in civil penalties that would otherwise apply to the violation). It is less clear whether
SMPs are otherwise required by law, like SEPs, or are instead more properly viewed as what the
law (i.e., Title VI regulations) requires. •'.
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even greater involvement in the development of mitigation measures than they are in SEPs where
they may be the primary beneficiaries of the litigation, but not its formal instigators. They should
be actively involved in any decision-making process designed to develop acceptable mitigation
measures. Under EPA's preliminary Title VI guidance, however, community representatives
have even fewer participatory rights than they do in the development of mitigation measures for
SEPs.
IV. Workgroup Tentative Findings and Recommendations
In a series of conference calls, the workgroup discussed the various issues described in
this report. Not surprisingly, there were areas of substantial disagreement. Even when some
degree of consensus was apparent on advantages and disadvantages of possible approaches, there
was often disagreement both on their relative weight and how the ultimate policy balance should
be struck. There were nonetheless some areas of common ground, at least with respect to
findings and even with regard to some specific recommendations. They are described below.
A. Findings
The workgroup makes the following findings:
1. A series of threshold legal issues need to be resolved more definitively before
issues relating to mitigation can themselves be resolved because the answers to those
threshold issues determine, in effect, the scope of permissible mitigation. These issues
include:
a. Whether, as a matter of law, the impacts relevant to a "disparate impact" inquiry
are strictly confined to the environmental effects that are relevant under the
particular environmental law creating the permit requirement or instead extend to
all the actual social, economic, and environmental effects of a decision to grant a
permit.
b. Whether, as a matter of law, mitigation short of measures that actually eliminate a
source's creation of, or contribution to, a disparate impact can validly allow for
the permitting of that pollution source.
c. Whether, and under what circumstances, the filing of a Title VI complaint with
EPA, stays, as a matter of law, the effectiveness of a permit pending resolution of
that complaint
d. Whether, as a matter of law, EPA may consider the availability of measures
designed to mitigate a disparate impact prior to determining whether that disparate
impact is justified.
2, Assuming that mitigation need not, as a matter of law, eliminate the disparate
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impact to be created by the entity seeking a permit, or that entity's contribution to a
pre-existing disparate impact, there are a series of competing advantages and
disadvantages that warrant consideration in deciding whether EPA should, as a matter
of policy, embrace a broader rather than narrower mitigation policy.
3. The primary characteristic distinguishing possible EPA mitigation policy
relates to the extent to which the mitigation measures must address the source of the
disparity in impact that serves as the basis for the Title VI complaint, which is referred
to as the "nexus" requirement.
a. A "narrow nexus" mitigation policy would provide that the only viable mitigation
is that which directly addresses the disparity in impact that is the basis of the
discrimination claim and that immediately eliminates the disparity (or at least the
source's contribution).
b. A "moderate nexus" approach would provide that mitigation must relate to the
same type of concerns that are the source of the disparate impact, but need not
eliminate that impact or provide mitigating benefits as immediately.
c. A "loose nexus" approach would find acceptable any mitigation measures that
address community concerns, regardless of their relationship to that impact, so
long as their benefits to the community outweigh the facility's adverse disparate
impact.
4. There are policy advantages and disadvantages relevant to selecting between a
"narrow," "moderate," or "loose" nexus approach, with strict adherence to a
nondiscrimination principle favoring the first, the retention of maximum discretion to
address the broad needs of a community favoring the last, and a rough compromise of
those two more extreme views favoring the middle position.
5. A hybrid approach that allows for mitigation measures that satisfy a moderate
nexus requirements but nonetheless mandates that mitigation measures should always
be as narrowly tailored as reasonable and practicable combines several of the
advantages of each of those nexus approaches.
6. There may be grounds for EPA's distinguishing between different kinds of Title
VI claims, based on the source of the disparity, in deciding whether a narrow,
moderate, or loose nexus policy is the most appropriate.
7. Mitigation measures that require actions over time and deliver their benefits in
the future are a valid form of mitigation but must be combined with measures designed
to ensure that the mitigation in fact occurs, including measures that provide for
monitoring of the progress of mitigation and for the enforceability of the promised
mitigation.
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8. Meaningful community involvement is an essential component of any Title VI
mitigation policy applicable to permitting.
9. EPA's Interim Guidance for Investigating Title VIAdministrative Complaints
for Challenging Permits fails to provide for meaningful community involvement. The
guidance provides for even less community involvement than the Agency's final
guidance respecting "community input" in the development of supplemental
environmental projects (SEPs), although the need for community involvement in the
Title VI context is even greater than they are for SEPs.
10. The Public Participation Model developed by EPA's National Environmental
Justice Advisory Council provides a useful starting point for the fashioning of
procedures intended to ensure community involvement in Title VI mitigation policy in
the permitting context
11. There are several different opportunities for public participation relevant to
mitigation, including (i) pre-filing of a formal Title VI administrative complaint, (ii)
post-filing/pre-acceptance of a complaint, and (Hi) post-acceptance of a complaint.
12. Mitigation measure that requires action in the future for the delivery of the
promised mitigation must include community capacity (including adequate resources
and technical knowledge) to monitor implementation and enforcement of the
mitigation.
B. Recommendations
The workgroup makes the following recommendations:
L EPA's Office of General Counsel needs, in consultation with the Department of
Justice, to reach a final resolution of the four threshold legal issues described in
Finding #1 above.
2. To minimize the instances when a Title VI administrative complaint needs to be
filed with the Agency, EPA should promote the initiation of early, informal
consultative processes among the permitting authority, permit applicant, and
potentially affected members of the community and their representatives.
3. If EPA concludes that a narrow nexus mitigation policy is not required as a
matter of law, then the Agency should adopt a mitigation policy that allows for
mitigation measures that satisfy the "moderate nexus" approach described in Finding
#3(b) above, but based on the following further restrictions:
a. mitigation measures must nonetheless always be as narrowly tailored to
12
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the disparate impact as is both reasonable and practicable;
b. the reasonableness of mitigation measures that address the disparate
impact less precisely depends on their ability to provide substantially
greater benefits to the community;
c. mitigation measures that require actions over time and deliver their
benefits in the future must be combined with measures designed to ensure
that the mitigation in fact occurs, including measures that provide for
monitoring of the progress of mitigation (e.g., timelines with specific
dates) and for the enforceability of the promised mitigation in an
appropriate binding legal document (e.g., formal permit conditions,
memoranda of understanding); and
d. a fair process for developing mitigation measures must include meaningful
public participation by potentially affected community interests, including
those who initiated the Title VI complaint.
4. EPA should not adopt a "loose nexus" approach to Title VI mitigation policy.
5. EPA's Title VI guidance should provide for public participation in the
fashioning of mitigation measures that:
a. meets the minimum requirements for meaningful community involvement
set forth in the NEJAC's Public Participation Model;
b. surpasses the extent of community input set forth in EPA's final guidance
relating to supplemental environmental projects in the settlement of EPA
enforcement actions;
c. generally addresses the need to provide an up-front, pre-development
process, including procedures for early dispute resolution, for identifying,
preventing, and addressing any disparate impacts;
d. establishes a consultative process within which the complainants,
community representatives, the permit applicant, and other relevant
stakeholders are part of the decision-making processes in the fashioning of
any mitigation measures that are developed after the time that a Title VI
complaint is filed;
e. provides that mitigation measures include provisions that ensure that the
community is provided with the capacity (including resources) to monitor
implementation of the mitigation measures, especially those promising the
adoption of mitigation in the future; and
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for mitigation measures that are both adopted after EPA's formal
acceptance of a Title VI administrative complaint and that depend on the
permit applicant's taking actions in the future, the measures should
provide for the establishment of a citizen advisory board with the capacity
for monitoring implementation of those mitigation measures.
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APPENDIX A: SECTION ON COMMUNITY INPUT FROM EPA FINAL 1998 SEP GUIDANCE
In appropriate cases, EPA should make special efforts to seek input on project proposals
from the local community that may have been adversely impacted by the violations. Soliciting
community input into the SEP development process can: result in SEPs that better address the
needs of the impacted community; promote environmental justice; produce better community
understanding of EPA enforcement; and improve relations between the community and the
violating facility. Community involvement in SEPs may be most appropriate in cases where the
range of possible SEPs is great and/or multiple SEPs may be negotiated.
When soliciting community input, the EPA negotiating team should follow the four
guidelines set forth below.
1. Community input should be sought after EPA knows that the
defendant/respondent is interested in doing a SEP and is willing to seek community input,
approximately how much money may be available for doing a SEP, and that settlement of
the enforcement action is likely. If these conditions are not satisfied, EPA will have very
little information to provide communities regarding the scope of possible SEPs.
2. The EPA negotiating team should use both informal and formal methods to
contact the local community. Informal methods may involve telephone calls to local
community organizations, local churches, local elected leaders, local chambers of
commerce, or other groups. Since EPA may not be able to identify all interested
community groups, a public notice in a local newspaper may be appropriate.
3. To ensure that communities have a meaningful opportunity to participate, the
EPA negotiating team should provide information to communities about what SEPs are,
the opportunities and limits of such projects, the confidential nature of settlement
negotiations, and the reasonable possibilities and limitations in the current enforcement
action. This can be done by holding a public meeting, usually in the evening, at a local
school or facility. The EPA negotiating team may wish to use community outreach
experts at EPA or the Department of Justice in conducting this meeting. Sometimes the
defendant/respondent may play an active role at this meeting and have its own experts
assist in the process.
4. After the initial public meeting, the extent of community input and
participation in the SEP development process will have to be determined. The amount of
input and participation is likely to vary with each case. Except in. extraordinary
circumstances and with agreement of the parties, representatives of community groups
will not participate directly in the settlement negotiations. This restriction is necessary
because of the confidential nature of settlement negotiations and because there is often no
equitable process to determine which community group should directly participate in the
negotiations.
000048
15.
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National Advisory Council for Environmental
Policy and Technology
Federal Advisory Committee
000049
Appendix E: Workgroup III Membership
List and Draft Report on a State and
Local Government Template
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WORKGROUP III: OPERATIONS
REPORT
A Template for State Environmental Justice
Programs
November 13,1998
000050
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Title VI Implementation Advisory Committee: Workgroup III
Mrs. Sue Briggum, Director
Government and Environmental Affairs
Waste Management
Washington D.C.
Dr. Robert Bullard
Environmental Justice Resource Center
Clark Atlanta University
Atlanta, Georgia
Mrs. Cherae Bishop, Director
Energy and Natural Resources
National Association of Manufacturers
Washington D.C.
Ms. Eileen Gauna, Professor
Southwestern Law School
Los Angeles, California
Mr. Tom Goldtooth
Indigenous Environmental Network
Bemidji, Minnesota
Dr. Walter Handy, Jr., Assistant Commissioner
Cincinnati Department of Health
Cincinnati, Ohio
Mr. Barry McBee, Commissioner
Texas Natural Resource and Conservation Commission
Austin, Texas [Resigned from Committee]
Mrs. Jody Henneke, Director
Office of Public Assistance
Texas Natural Resources and Conservation Commission
Austin, Texas [Replaced Mr. McBee on Committee]
Mr. Langdon Marsh, Director
Oregon Department of Environmental Quality
Portland, Oregon
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10/20/98
(includes WH revision 11/13)
Report of the
National Advisory Council
for
Environmental Policy and Technology
Title VI Implementation Advisory Committee
WORKGROUP III: OPERATIONS
A Template for State Environmental Justice Programs
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INTRODUCTION
The Mission of Workgroup III
Webster's Third International Dictionary defines a template as a "pattern or guide" used
to "produce a desired profile." The mission of Workgroup III is to develop a template for state
environmental justice programs, describing both the structure and the key elements of the process
that states could use to ensure environmental justice and to identify, prevent, and resolve claims
of discriminatory treatment.
The template described in this report is intended as a model for states concerned about
these issues. It is not intended as the basis for a mandatory requirement that the states adopt such
programs. However, the Workgroup urges EPA to create strong incentives for states to
implement programs modeled on the principles described here by establishing a presumption in
favor of state decisions when it evaluates Title VI complaints against states that implemented
these principles in good faith.
Although Workgroup III devoted considerable effort to the framework and procedures
presented in this report, the template is not yet complete. Before the template can be used to
establish a presumption in favor of state programs', substantive guidance must be added that
defines such crucial concepts as the factors and methodology involved in identifying adversely
affected populations and the harm they have suffered, as well as the content of any acceptable
justifications for such results and actions-that can be taken to mitigate them. The Title VI
Advisory Committee includes two other workgroups that are addressing these issues, and
Workgroup III anticipates that their final product will be read in conjunction with this report.
Two Paths to Justice
Workgroup III was fortunate to have the active participation of the directors of three state
environmental agencies: New Jersey, Texas, and Oregon. As we studied the efforts they have
made to develop proactive environmental justice programs, it became clear that the states
approach the issues from two distinct directions. First, the programs address potential
discrimination against communities that results from permitting decisions made with respect to
individual facilities. Second, such programs explore and attempt to remedy the imposition of a
disproportionate burden of adverse environmental effects on minority communities without
regard to the constraints of the permitting process. Both tracts holds promise because of their
1 What incentives or "presumptions in favor of state programs" can be offered or created by EPA that will offset the
additional state resources necessary to comply with tract 2 "paths to justice" of these recommendations. The same
question may be asked with respect to businesses and industry and their role in tract 2 recommendations.
000053
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more proactive response to community concerns. However, the second tract goes beyond the
dictates of Title VI and may pose resource concerns.
The template we have developed assumes that state environmental justice programs could
develop along both tracks. Thus, cumulative effects that are difficult to address effectively in
single-facility permitting proceedings would be identified and addressed by other activities of the
state program.
State Flexibility
Although Workgroup III developed a strong consensus regarding the desirability of a
two-track structure for states and the importance of EPA deference to state decisions as an
incentive for states to adopt the template, members diverged on the question of how much
flexibility states should be given to translate the principles contained in the template into
an operational protocol.' One state representative described the template as a "menu" of
options for the states, while another participant urged that the template contain as much
prescriptive detail as possible. An industry representative reiterated the need for clarity and
certainty so that the consideration of environmental justice concerns could proceed at the same
time as permits are processed, eliminating inordinate delays. As EPA refines the template, the
Workgroup recommends that it achieve a balance between the need to establish a clear floor for
state programs while still giving the states the flexibility to adapt these principles to their own
local circumstances.
The Workgroup recognizes that some states believe that EPA should delegate the
resolution of Title VI claims to the states, leaving appeals of the decisions made at the state level
to the judicial system. The Workgroup, however, recognizes the EPA's continuing obligation as
arbiter of such claims.
The Best Context for Environmental Justice Programs
The Workgroup recommends that EPA and the states make explicit the relationship
between effective environmental justice programs and other initiatives that address the
fundamental sources of such concerns. For example, programs that address pollution on a
watershed or air shed basis have the potential to define and ameliorate the cumulative effects of
emissions on minority communities more effectively than individual permit decisions. Similarly,
1 The question of minimum and maximum flexibility from state to state needs to be addressed by the Committee.
Too much variability from state to state may be very confusing to national organizations (NGO's and businesses and
industries). The question of flexibility here seems directly connected with the question of incentives or
"presumptions" referenced above in #1. I believe that agreed upon minimum and maximum flexibilities have to be
established by the workgroup or the Committee.
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EPA and state efforts to develop cross-media programs may provide better opportunities for
mitigating the adverse effects of emissions on minority communities. Finally, EPA's efforts to
develop and make accessible to the public data regarding environmental indicators will prove
extremely helpful in bolstering the transparency of the public participation process envisioned by
this template.
EPA and state policy statements regarding environmental justice, cross media regulation,
watershed and air-shed protection, and efforts to improve environmental information should
describe these interrelationships and encourage coordination between these activities.
Next Steps for EPA
The Workgroup recommends that EPA take the recommendations produced by this
Advisory Committee and give them substantial weight in its efforts to produce final guidance on
environmental justice issues. We anticipate that EPA will consult with other constituencies and
experts in the course of preparing final guidance, and that the guidance will be published for
public comment before it is issued in final form.
The Workgroup further urges EPA to develop and make available to the states and the
public the tools necessary to implement the programs envisioned by the template we have
proposed. For example, EPA has made strides in developing models and other tools for
assessing the cumulative effects of exposure to environmental releases. The Agency has also
made efforts to help states computerize and make available to the public information regarding
the status of facility permits, as well as critical data about the condition of the environment,
enforcement activities, and regulatory requirements. EPA has pioneered the development of
methodologies that help industry and mineral extractive sectors identify and implement
pollution prevention opportunities. It is also developing mobile sensor technology that allows
measurements of ambient air quality in communities, a category of information that is often
requested by community groups. EPA could also consider developing a checklist or inventory of
the sources that are most prevalent in minority communities for use by citizens and the states in
assessing cumulative exposures. All of these tools are vital building blocks in the
implementation of effective environmental justice programs, and the Workgroup recommends
that EPA devote significant resources to making them readily available to state agencies,
industry, tribes and the public.
In addition to continuing its consultations with the states regarding Title VI issues, the
Workgroup recommends that EPA initiate consultations with industry groups to explain the goals
of its environmental justice guidance. It is the sense of the Workgroup that although the
chemical and waste management industries are aware of the issues, other elements of the
manufacturing sector may not understand how such considerations can affect their business. We
would particularly encourage proactive efforts to educate the smaller business community.
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Road Map to This Report
The Workgroup has developed seven principles to serve as a template for incorporating
environmental justice into state permitting processes. These principles are listed and discussed
in the approximate order that they arise in the permitting process:
1. Identify Title VI issues proactively, with a community-based focus.
2. Define relevant pollution sources to be addressed by state Title VI
programs accurately and inclusively, taking into consideration cumulative
health and environmental effects.'
3. Expand existing decision-making processes to incorporate environmental
justice issues, rather than creating a new and separate process, while
ensuring that decision-makers address such issues in a timely, efficient, and
predictable manner. In that context, ensure that states have adequate legal
authority to carry out their programs.2
4. Establish a transparent, accessible, honest, and accurate process for public
participation.
5. Inform and involve all relevant levels and types of government entities in
the process of reviewing actions that may have Title VI implications. It is
especially important to consult with local government officials, including
economic development officials.
6. Create and identify incentives for permittees to address community
concerns voluntarily.
7. Build community monitoring capacity.
1 Who will define these sources? Will the definitions and selection of these sources also take into consideration
cultural and other "quality of life" concerns?
2 Is it more advantageous for states to develop this legal authority for themselves, or may EPA develop federal law
or administrative code that can be delegated to the states.
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THE SEVEN PRINCIPLES
Proactive Problem Solving
Identify Title VI issues proactively, with a community-based focus.
Perhaps the single most important characteristic of the template proposed by this report is
early and proactive efforts to identify and address environmental justice issues. This principle is
especially important hi the context of the permitting process for individual facilities, but it
applies as well to the second track of state environmental programs — efforts to address the
aggregate effects of pollution on minority communities.
With regard to the permitting tract, the Workgroup strongly recommends that EPA, the states,
and industry embrace the principle that community outreach and dialogue should begin as soon
as possible hi the permitting or pre-permitting process (e.g., a netting transaction or
determination to renew, modify, or acquire a new permit). The Workgroup further recommends
that at these initial stages, the siting entity and state environmental agency officials conduct
community outreach to identify parties potentially interested in the decision at issue. Informal
discussions with the community, as well as all state and local officials that may play a role in the
decision, should begin as soon as possible once these parties are identified. (Lang Marsh is
concerned about statutory authority and resource requirements at a state level implied by this
language and may provide new language here.)
The Workgroup further believes that few constraints should be placed on those initial
discussions. It is especially important to encourage residents who would be directly affected by
the permitting decision to raise the full range of their concerns about the potential impact of the
new or existing facility on their environment, defined in the broadest sense. Thus, if
communities are concerned that truck traffic will cause an increase in vehicle accidents, or
believe that the siting or expansion of a facility will change property values, they should be
encouraged to put those concerns on the table during these preliminary discussions so that the
facility's sponsor can consider them.
The Workgroup recognizes that state officials and facility sponsors may not agree that the
community's concerns are covered by the environmental permitting process. We further
understand that state officials and facility sponsors mav wish to draw clear and explicit
distinctions between such open-ended problem-solving and the issues that will be
considered if the parties are unable to reach a voluntary agreement.1 Nevertheless, the
benefits of reaching early agreements that effectively address the community's most significant
Will there be any consistency between states for parameters of these agreements?
5
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concerns is the best way to prevent the festering of such problems to the point that they provoke
a Title VI complaint.
It cannot be overemphasized that when we recommend early intervention, we mean just
that. Ideally, a dialogue would begin even before zoning decisions are made to allow
construction or expansion of the facility and would be underway before the permit process
officially begins. In addition to giving the parties the forum and the flexibility to find solutions
to community concerns, early intervention reduces the possibility that delays will cost industry
tune, money, and even a competitive advantage in the siting or expansion of new and existing
facilities. Finally, early intervention keeps the focus on the community's true concerns, rather
than compelling the community to fight a permit on the basis of issues that are less important,
but which may be of great significance to facility sponsors. This is why the committee strongly
recommends a concurrent, more relational, second tract approach.
As for the second track of environmental justice programs, the Workgroup believes that over
time, as efforts to address disproportionate pollution burdens in minority communities become
more sophisticated and extensive, the level of controversy provoked by individual permitting
decisions will recede. Thus, the second track is important as an alternative to resolution of such
concerns within the permitting process and hopefully will be embraced by all stakeholders.
Members of the Workgroup recognize that pre-identification of adversely affected communities
in the context of the second track may have an impact upon development. Use of the term
"redlining" to describe this effect may be misleading and is not viewed as helpful.
A final issue considered by the Workgroup is the extent to which environmental justice programs
should conduct outreach in communities that have not otherwise indicated concern about
environmental risks. Should program staff try to educate community residents about
environmental problems, or should they simply develop accessible notification procedures and
terminate official consideration of environmental justice concerns if no one — or only a small
number of residents — come fonvard?'
The Workgroup agrees that it is not the role of a state environmental justice program to organize
opposition to permitting decisions. However, we also believe that the second track of
environmental programs should proceed even if communities are not demanding change. As
science and technology become more sophisticated and we are able to identify and measure
1 Will it be sufficient here for states or municipalities to develop and disseminate multimedia indicators of
environmental quality?
OOOOS8
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cumulative effects, amelioration of disproportionate burdens will become an integral part of the
overall mission of federal and state environmental agencies, with or without public complaints.
Addressing Cumulative Effects
Define relevant pollution sources to be addressed by state Title VI programs accurately
and inclusively, taking into consideration cumulative health and environmental effects.
As noted above, the Workgroup achieved strong consensus on one crucial point: states
should implement programs that endeavor to assess the cumulative effects on human health and
the environment of all pollution sources, without respect to the constraints of the permitting
process. Under this second track, states-would pre-identify communities with a significant
"pollution load" and a minority population, and would work with industry and community
organizations to find methods for decreasing such exposures. States should also consider
developing compliance outreach, and technical assistance to respond to such situations or special
enforcement if appropriate.
The Workgroup further agreed that state programs should set priorities among sources, leaving
those that cause relatively minor adverse impacts out of their programs, and tailoring the amount
of scrutiny other sources receive on the basis of substantive criteria. The development of
"exceptions" and a tiered public participation process would occur primarily in the context of
permit reviews conducted with respect to individual facilities. The Workgroup recognizes that
states process hundreds, even thousands, of permits each year and that it would be impractical,
unreasonable, and unnecessary to require a full environmental justice process for each one.
Potential criteria suggested by members of the Workgroup for either defining exceptions or
applying different levels of procedure include:
* the size of the facility;
* the types, amounts, and duration of emissions from the facility;
* the amount of unregulated toxic pollutants emitted by the facility;
* the nature of the adverse effects caused by such emissions;
* the nature of the permit at issue: (e.g., applications for simple renewals could be
given less scrutiny than applications requesting expansions or the construction of
a new facility);
* other harms caused by the facility (e.g.. changed property values, offensive odors,
infringement of cultural values);
* the size and qualifications of the entity sponsoring the facility;
* the existence of alternative locations for the facility; or
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* significant amount of public controversy (e.g., the public typically reacts to
landfills, incinerators, or medical waste disposal facilities with more intensity than
manufacturing facilities).
It is crucial to note that the Workgroup did not reach consensus on whether any or
all of these criteria are appropriate, and they are offered for illustrative purposes only. '
While these two points of consensus are important and noteworthy, the Workgroup did
not reach consensus on two closely related and equally important issues: how should
environmental justice programs take into consideration the cumulative impact of neighboring
sources when making permitting decisions for a single facility? Should the process and
procedures of environmental justice analysis differ with respect to new and existing facilities
under permit by permit approach? (There are a range of tools to identify cumulative impact.
There are also tools for addressing cumulative impact. The "offset" approach is a concept that
they could look at in the tract one approach. This approach has a number of problems that the
committee is aware of however. In addition, a budget approach is in a tract tw-o (relational).
Identifying remediation strategies. The committee also wishes to acknowledge that these
analyses may involve different scope and intensity of review depending upon whether the facility
is new or making a major modification of their work processes. We support EPA 's efforts to
develop tools in this regard. Eileen will work on language in this arena as these are just
exploratory approaches at the present.)2
The Workgroup has committed to continuing discussion of the answers to both
questions, with some members arguing that cumulative effects were an illegal consideration in
permitting any facility under existing environmental law and others arguing that such effects not
only should be considered, but should affect permitting decisions for new and existing facilities
equally. One member noted that cumulative effects are already a factor in state permitting
decisions under the Clean Water Act because states conduct an assimilative analysis of affected
water bodies, and try to leave room for industrial growth. He acknowledged, however, that the
states' ability to develop remedies that address such effects vary depending on the legal authority
given to the environmental agency under existing state law.
Members of the group further disagreed on the concept of zero-based permitting that would
scrutinize permit renewals under the same standards as applications for new permits. Many
members felt that this approach was either unfair or impractical, and could not be implemented at
'Are we any closer to consensus here?
; I understand that EPA is presently planning to publish on the internet health modeling data based upon TRI
information about "air pollution." Is any of that work applicable here?
8
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the state level without great disruption. But some argued that zero-based permitting was
fundamental to the elimination of discrimination because it was essential to the reduction of
disproportionate pollution loads. While the resolution of these issues may be achieved by other
workgroups, we do not believe that it is necessary to achieve consensus in order to design the
aspects of the template that are the mission of Workgroup III.
Expansion of Existing Programs
Expand existing decision making processes to incorporate environmental justice
issues, rather than creating a new and separate process, while ensuring that decision
makers address such issues a timely, efficient, and predictable manner.
The Workgroup strongly recommends that the first track of state environmental justice
programs — evaluation of environmental justice concerns raised by individual permit applications
— occur within the existing process for making such decisions. To the maximum extent
practical, the technical review of permit applications should occur concurrently with the
consideration of environmental justice issues, rather than leaving such issues to the tail end of the
process, where they can trump technical review, wasting time and resources.
The Workgroup recognizes that state laws contain different definitions of state
agency authority with respect to the terms and conditions of environmental permits, with
some statutes granting state agencies the authority to change the standards that apply to a
given facility in order to address cumulative effects. In general, the Workgroup urges state
agencies to define the nature and scope of their authority clearly, both for internal
purposes and for interested parties participating in a mediation process. However, we did
not address the complicated issue of the extent to which state agencies should seek new
legal authority in order to implement their environmental justice programs. Some
members of the Workgroup felt that adequate legal authority was essential to an effective
program, while others expressed concern about politicizing the process in a legislative
context. EPA may wish to consider addressing this issue in more detail. '
Transparent Process
Establish a transparent, accessible, honest, and accurate process for public
participation.
See comments for reference note #4 here.
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10
The Workgroup has identified five elements that are essential to the creation of a
transparent process for public participation in decisions involving environmental justice issues:
1. Accessible notification;
2. Effective education regarding the legal and technical aspects of industrial
operations, permitting, and environmental exposures;
3. A process that allows community residents to participate in the debate
comfortably; and
4. The development of adequate information to inform participants about the
implications of the decision at issue;
5. Clear statements by state agencies explaining the reasons for the decisions made
with respect to environmental justice issues.
The Workgroup has attached to this report the public participation guidelines
prepared by the National Environmental Justice Advisory Council (NEJAC), as well as ASTM
E-50.03 — Standard Guide to the Process of Sustainable Brownfields Redevelopment. The
Department of Energy also has within its procurement program a procedure by which businesses
seeking contracts must enter into a constructive dialog with the effect community. These
documents give helpful guidance to states in achieving these goals. The Workgroup would make
the following additional recommendations to EPA as it considers this aspect of the template.
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 Workgroup believes that such minimal notification
should be supplemented by more aggressive community outreach. For example, New Jersey has
considered placing notices in electric or telephone bills. New Jersey has also established a
community liaison staff who develop an ongoing relationship with minority communities, even
when no decisions are before them. In a similar vein, Oregon is contemplating expanding its
outreach efforts to local churches and community meetings.
Industry representatives agree that ongoing advisory groups, such as the community advisory
groups established under the chemical industry's Responsible Care program, could provide
fertile opportunities for consulting with community representatives about environmental justice
issues in a timely and effective manner.
The Workgroup also recommends that states consider developing citizen education
classes to inform the public about the operation of permit programs, the science of assessing
exposure and risk, and the technical aspects of plant operations and pollution control. Citizens
with this base of knowledge are more likely to participate meaningfully in the consideration of
10
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11
disproportionate burdens and cumulative risk, whether those issue arise in the first or second
track of a state environmental justice program.
The Workgroup recommends that early efforts to mediate permitting disputes occur in an
informal atmosphere where participants feel comfortable, are encouraged to ask any questions
that occur to them, and are allowed to raise all concerns that are related to the facility's operation.
Early, informal participation may not obviate the need for more formal hearings later in the
process, but we believe that it provides the most promising opportunity for timely resolution of
environmental justice disputes.
During such deliberations, participants must have access to understandable data
concerning the facility's operations and the likely environmental implications of the permitting
decision. EPA can assist the states in developing such information through its national databases
that include monitoring and release data, as well as information about environmental conditions
in the area where the facility is located.
The Workgroup agrees that permit applicants should be asked to develop additional information
if necessary to supplement materials provided by the government, especially facility-specific
facts such as compliance history, discharges and emissions, and facility processes, including
opportunities for pollution prevention.
State programs should ensure that important documents are translated into languages
other than English as appropriate. Permit proceedings can involve extensive documentation, and
state agencies should make their best efforts to impose a reasonable burden on permittees.
Last but not least, the Workgroup believes that state agencies should articulate in writing the
reasoning that underlies their decisions on environmental justice issues, explaining to the
community and the permittee why they reached the resolution they have adopted. (The
committee should think through the process of enforcement and review ability of this process.)
Participation by Government
Inform and involve all relevant levels and types of government entities in the process of
reviewing actions that may have Title VI implications. It is especially important to
cooperate with local government officials, including economic development officials.
The Workgroup recognizes that a hallmark of successful environmental justice programs
is to avoid extensive delays and inconsistent results as the permit applicant traverses the web of
state and local agencies that must approve the process. In addition to agencies with regulatory
authority, other branches of government, such as economic development agencies, are frequently
11
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12
involved in planning new or expanded facilities, or in ensuring that existing facilities remain
where they are and prosper.
The importance of including the permit applicant and community representatives in early
discussions of environmental justice issues is obvious; the significance of involving these other
government entities is too often overlooked. Not only should their involvement prevent
inordinate delays in the decision-making process; it may well make it possible to address
community concerns more directly. For example, residents may be concerned about fire code
issues or the configuration of a highway used by trucks delivering materials to the plant. By
including officials with the authority to rectify such problems, both the permit applicant and the
community may benefit.
As important as it is to include all relevant state and local officials in the outreach effort, we
believe that state environmental agencies must remain firmly in charge of the process. Where
possible, environmental justice concerns should be integrated into the permitting process and
handled by the same staff that will conduct a technical review of the permit. However, we
recognize that some states have found it more effective to establish a separate office to address
environmental justice concerns, and we urge EPA to give the states the management flexibility to
adopt the approach that will work best for them.
Incentives
Create and identify incentives to address community concerns voluntarily.
The Workgroup agrees that finding suitable incentives for industry, the public and private
sector, individuals, and small and large businesses to participate in environmental justice
programs is an important condition for their long-term success. Of course, states can make such
participation a condition of receiving a permit. But to the extent that permit applicants can be
convinced that the process is likely to reduce delays and last-minute "surprises" and will improve
industry relations with adjacent communities, their participation is likely to prove significantly
more fruitful.
Avoidance of the extensive delays that accompany the filing of a Title VI complaint is the
most obvious incentive for industry participation. Another possible incentive is more rapid
processing of permit applications. EPA and the states should also consider recognizing efforts to
address community concerns by including such "supplemental projects" as a term of the permit
that may, when appropriate, lessen the burden imposed by some other permit condition. Finally,
it may prove worthwhile to study emerging brownfield reclamation programs for examples of
incentives that encourage industry participation hi an affirmative manner. (The •committee will
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seek additional examples of incentives to motivate tract one and tract two sectors. The
Regulatory Reinvention Committee of NACEPT is currently exploring this issue.)
Community Monitoring
Build community monitoring capacity.
The Workgroup recommends that states consider initiatives that allow communities to continue
to assess the compliance of permitted facilities after environmental justice issues have been
resolved. Building community capacity to monitor permittee performance may prove very
effective in assuaging community anxiety about the health and environmental risks posed by
individual facilities.
The Workgroup believes that monitoring and other information reported to the government
should be readily accessible by the community.
The Workgroup further believes that consideration should be given to confirming commitments
made by permit applicants to address environmental justice issues in readily understandable,
binding contracts with the state agency and the community, giving community representatives
the assurance that the relief they negotiated is clear to other participants and will in fact be
delivered.
The Workgroup did not reach consensus on the question of whether environmental justice
programs should facilitate the initiation of citizen suits by, for example, adding expanded
authority for private enforcement to relevant state laws. Industry and state representatives were
strongly opposed to the idea that states assist citizen efforts in this direction, while other
participants felt that citizen enforcement was an important supplement to government authority,
and would give citizens the sense that they are "empowered" to address future concerns.
(Additional concerns were raised at the plenary session on how to evaluate the effectiveness of
such this programming on the impacted communities.)
Conclusion
The Workgroup recognizes that EPA has a difficult task ahead in balancing communities'
need for protection against discriminatory effects, state requests for flexibility, and industry's
desire for expeditious and predictable decision making. We believe, however, that this task is of
the utmost importance and urge EPA to continue to give it high priority. As one state
representative put it, the development of effective environmental justice programs gives
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14
government the opportunity to "walk its talk." fulfilling the equitable ideals that are at the heart
of the American svsteni.
14
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15
APPENDIX
New Jersey has pioneered the development of "one-stop permitting," which allows a facility to
obtain all necessary permits from one central office. In that context, New Jersey is considering a
program that would create three separate procedures for new, modified, and renewal permits. The
first step for all three processes is to put the application through an "justice screen" designed to
determine whether the operations covered by the permit affect a "burdened" community. This
screening is accomplished by a separate staff that specializes in environmental justice issues.
If the screening concludes that the permit will not burden a minority community, the application
is processed under traditional rules. However, if the screening concludes that the permit will
impose a disproportionate burden, the permit applicant, affected community residents, and other
state and local officials are notified. The permit applicant is then given a choice: it can either
volunteer to go through a mediation process aimed at resolving environmental justice concerns,
or take the risk that its permit will be denied at the end of the process in order to avoid a Title VI
complaint.
If the applicant chooses to participate, New Jersey officials undertake an "interest-based
negotiation" that is facilitated by staff experts concurrently with the technical review of the
permit application. The goal of these negotiations, which consider any issue the community
wishes to raise, are the signing of a "memorandum of understanding" or a "quality of life
document." If the parties cannot agree at this stage of the process, New Jersey would refer the
matter to a more formal dispute resolution process, in which a mediator attempts to hammer out a
solution that all can accept. If those efforts fail, the state must determine whether there is a
disparate impact that violates Title VI, requiring it to deny the permit, or whether it should deny
the application. Once again, every effort is made to ensure that the technical review of the permit
proceeds concurrently with the mediation of environmental justice disputes.
The Workgroup believes that the New Jersey program could provide useful guidance to states in
drafting the details of a process for integrating environmental justice concerns into the normal
permitting process.
15
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INTERIM GUIDANCE FOR INVESTIGATING
TITLE VI ADMINISTRATIVE COMPLAINTS
CHALLENGING PERMITS
Introduction
This interim guidance is intended to provide a framework for the processing by EPA's Office of
Civil Rights (OCR) of complaints filed under Title VI of the Civil Rights Act of 1964, as amended
(Title VI),1 alleging discriminatory effects resulting from the issuance of pollution control permits
by state and local governmental agencies that receive EPA funding.
In the past, the Title VI complaints filed with EPA typically alleged discrimination in access to
public water and sewerage systems or in employment practices. This interim guidance is intended
to update the Agency's procedural and policy framework to accommodate the increasing number
of Title VI complaints that allege discrimination in the environmental permitting context.
As reflected in this guidance, Title VI environmental permitting cases may have implications for a
diversity of interests, including those of the recipient, the affected community, and the permit
applicant or permittee. EPA believes that robust stakeholder input is an invaluable tool for fully
addressing Title VI issues during the permitting process and informally resolving Title VI
complaints when they arise.
Background
No per son in the United States shall, on the. ground of race, color, or national origin, be
excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance.
- Title VI
On February 11,1994, President Clinton issued Executive Order 12,898, "Federal Actions To
Address Environmental Justice in Minority Populations and Low-Income Populations." The
Presidential memorandum accompanying that Order directs Federal agencies to ensure compliance
with the nondiscrimination requirements of Title VI for all Federally-funded programs and
activities that affect human health or the environment While Title VI is inapplicable to EPA
actions, including EPA's issuance of permits, Section 2-2 of Executive Order 12,898 is designed
to ensure that Federal actions substantially affecting human health or the environment do not have
discriminatory effects based on race, color, or national origin. Accordingly, EPA is committed to
a policy of nondiscrimination in its own permitting programs.
42 U.S.C. §§ 2000d to 2000d-7.
Appendix F: EPA Interim Guidance
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Title VI itself prohibits intentional discrimination. The Supreme Court has ruled, however, that
Title VI authorizes Federal agencies, including EPA, to adopt implementing regulations that
prohibit discriminatory effects. Frequently, discrimination results from policies and practices that
are neutral on their face, but have the effect of discriminating? Facially-neutral policies or
practices that result in discriminatory effects violate EPA's Title VI regulations unless it is show
that they are justified and that there is no less discriminatory alternative.
EPA awards grants on an annual basis to many state and local agencies that administer continuing
environmental programs under EPA's statutes. As a condition of receiving funding under EPA's
continuing environmental program grants, recipient agencies must comply with EPA's Title VI
regulations, which are incorporated by reference into the grants. EPA's Title VI regulations
define a "[recipient" as "any state or its political subdivision, any instrumentality of a state or its
political subdivision, any public or private agency, institution, organization, or other entity, or any
person to which Federal financial assistance is extended directly or through another recipient ....'3
Title VI creates for recipients a nondiscrimination obligation that is contractual in nature in
exchange for accepting Federal funding. Acceptance of EPA funding creates an obligation on the
recipient to comply with the regulations for as long as any EPA funding is extended"?
Under amendments made to Title VI by the Civil Rights Restoration Act of 1987,5 a "program" or
"activity" means all of the operations of a department, agency, special purpose district, or other
instrumentality of a state or of a local government, any part of which is extended Federal financial
assistance.6 Therefore, unless expressly exempted from Title VI by Federal statute, all programs
and activities of a department or agency that receives EPA funds are subject to Title VI, including
those programs and activities that are not EPA-funded. For example, the issuance of permits by
EPA recipients under solid waste programs administered pursuant to Subtitle D of the Resource
Conservation and Recovery Act (which historically have not been grant-funded by EPA), or the
2 Department of Justice, Attorney General's Memorandum for Heads of Departments and
Agencies that Provide Federal Financial Assistance, The Use of the Disparate Impact Standard in
Administrative Regulations Under Title VI of the Civil Rights Act of 1964, (July 14,1994).
3 40 C.F.R. § 7.25 (1996). Title VI applies to Indian Tribes as EPA recipients only when
the statutory provision authorizing the Federal financial assistance is not exclusively for the
benefit of Tribes. Otherwise, Tribes are exempt from Title VI.
4 40 C.F.R. § 7.80(a)(2)(iii)(1996).
3 Pub. L. No. 100-259, 102 Stat. 28 (1988); S. Rep. No. 64 at 2,11-16, 100th Cong.,
reprinted in 1988 U.S. Code Cong. & Admin. News at 3-4,13-18.
6
42 U.S.C. § 2000d-4a.
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actions they take under programs that do not derive their authority from EPA statutes (e.g., state
environmental assessment requirements), are part of a program or activity covered by EPA's Title
VI regulations if the recipient receives any funding from EPA.
In the event that EPA finds discrimination in a recipient's permitting program, and the recipient is
not able to come into compliance voluntarily, EPA is required by its Title VI regulations to initiate
procedures to deny, annul, suspend, or terminate EPA funding.7 EPA also may use any other
means authorized by law to obtain compliance, including referring the matter to the Department
of Justice (DOJ) for litigation.8 In appropriate cases, DOJ may file suit seeking injunctive relief.
Moreover, individuals may file a private right of action in court to enforce the nondiscrimination
requirements in Title VI or EPA's implementing regulations without exhausting administrative
remedies.9
Overview of Framework for Processing Complaints
While this guidance is directed at the processing of discriminatory effects allegations, as a general
proposition, Title VI complaints alleging either discriminatory intent and/or discriminatory effect
in the context of environmental permitting will be processed by OCR under EPA's Title VI
regulations at 40 C.F.R. Part 7. The steps that the Agency will follow in complaint processing are
described below. EPA's Title VI regulations encourage the informal resolution of all complaints
with the participation of all affected stakeholders (see step 8 below).
1. Acceptance of the Complaint
Upon receiving a Title VI complaint, OCR will determine whether the complaint states a valid
claim. If it does, the complaint will be accepted for processing within twenty (20) calendar days
of acknowledgment of its receipt, and the complainant and the EPA recipient will be so notified.
If OCR does not accept the complaint, it will be rejected or, if appropriate, referred to another
Federal agency. 40 C.F.R. § 7.120(d)(l).
7 40 C.F.R. §§ 7.115(e), 7.130(b)(1996); Id. at7.110(c).
8 42 U.S.C. § 2000d-l; 40 C.F.R. § 7.130(a).
9 Chester Residents Concerned for Quality Living v. Seif No. 97-1125, U.S. App. LEXIS
36797 (3d Cir. Dec. 30, 1997).
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2. Investigation/Disparate Impact Assessment
Once a complaint is accepted for processing, OCR will conduct a factual investigation to
determine whether the permit(s) at issue will create a disparate impact, or add to an existing
disparate impact on a racial or ethnic population. If, based on its investigation, OCR concludes
that there is no disparate impact, the complaint will be dismissed. If OCR makes an initial finding
of a disparate impact, it will notify the recipient and the complainant and seek a response from the
recipient within a specified time period. Under appropriate circumstances, OCR may seek
comment from the recipient, permittee, and/or complainant(s) on preliminary data analyses before
making an initial finding concerning disparate impacts.
3. Rebuttal/Mitigation
The notice of initial finding of a disparate impact will provide the recipient the opportunity to
rebut OCR's finding, propose a plan for mitigating the disparate impact, or to "justify" the
disparate impact (see step 4 below regarding justification). If the recipient successfully rebuts
OCR's finding, or, if the recipient elects to submit a plan for mitigating the disparate impact, and,
based on its review, EPA agrees that the disparate impact will be mitigated sufficiently pursuant
to the plan, the parties will be so notified. Assuming that assurances are provided regarding,
implementation of such a mitigation plan, no further action on the complaint will be required.
4. Justification
If the recipient can neither rebut the initial finding of disparate impact nor develop an acceptable
mitigation plan, then the recipient may seek to demonstrate that it has a substantial, legitimate
interest that justifies the decision to proceed with the permit notwithstanding the disparate impact
Even where a substantial, legitimate justification is proffered, OCR will need to consider whether
it can be shown that there is an alternative that would satisfy the stated interest while eliminating
or mitigating the disparate impact.
5. Preliminary Finding of Noncompliance
If the recipient fails to rebut OCR's initial finding of a disparate impact and can neither mitigate
nor justify the disparate impact at issue, OCR will, within 180 calendar days from the start of the
complaint investigation, send the recipient a written notice of preliminary finding of
noncompliance, with a copy to the grant award official (Award Official) and the Assistant
Attorney General for Civil Rights. OCR's notice may include recommendations for the recipient
to achieve voluntary compliance and, where appropriate, the recipient's right to engage in
voluntary compliance negotiations. 40 C.F.R. § 7.115(c).
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6. Formal Determination ofNoncompliance
If, within fifty (50) calendar days of receipt of the notice of preliminary finding, the recipient does
not agree to OCR's recommendations or fails to submit a written response demonstrating that
OCR's preliminary finding is incorrect or that voluntary compliance can be achieved through
other steps. OCR will issue a formal written determination of noncompliance, with a copy to the
Award Official and the Assistant Attorney General for Civil Rights. 40 C.F.R. § 7.115(d).
7. Voluntary Compliance
The recipient will have ten (10) calendar days from receipt of the formal determination of
noncompliance within which to come into voluntary compliance. 40 C.F.R. § 7.115(e). If the
recipient fails to meet this deadline, OCR will start procedures to deny, annul, suspend, or
terminate EPA assistance in accordance with 40 C.F.R. § 7.130(b) and consider other appropriate
action, including referring the matter to DOJ for litigation.
8. Informal Resolution
EPA's Title VI regulations call for OCR to pursue informal resolution of administrative
complaints wherever practicable. 40 C.F.R. § 7.120(d)(2). Therefore, OCR will discuss, at any
point during the process outlined above, offers by recipients to reach informal resolution, and will,
to the extent appropriate, endeavor to facilitate the informal resolution process and involvement
of affected stakeholders. Ordinarily, in the interest of conserving EPA investigative resources for
truly intractable matters, it will make sense to encourage dialogue at the beginning of the
investigation of complaints accepted for processing. Accordingly, in notifying a recipient of
acceptance of a complaint for investigation. OCR will encourage the recipient to engage the
complainant(s) in informal resolution hi an effort to negotiate a settlement.
Rejecting or Accepting Complaints for Investigation
It is the general policy of OCR to investigate all administrative complaints that have apparent
merit and are complete or properly pleaded. Examples of complaints with no apparent merit
might include those which are so insubstantial or incoherent that they cannot be considered to be
grounded in fact.
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A complete or properly pleaded complaint is:
' 1) in writing, signed, and provides an avenue for contacting the signatory £.g., phone
number, address);
2) describes the alleged discriminatory act(s) that violates EPA's Title VI regulations
(i.e., an act of intentional discrimination or one that has the effect of discriminating
on the basis of race, color, or national origin);
3) filed within 180 calendar days of the alleged discriminatory act(sj'; and
4) identifies the EPA recipient that took the alleged discriminatory act(s).
EPA's Title VI regulations contemplate that OCR will make a determination to accept, reject, or
refer (to the appropriate Federal agency) a complaint within twenty (20) calendar days of
acknowledgment of its receipt. 40 C.F.R. § 7.120(d)(l). Whenever possible, within the twenty-
day period, OCR will establish whether the person or entity that took the alleged discriminatory
act is in fact an EPA recipient as defined by 40 C.F.R. § 7.25. If the complaint does not
specifically mention that the alleged discriminatory actor is an EPA financial assistance recipient,
OCR may presume so for the purpose of deciding whether or not to accept the complaint for
further processing.
Timeliness of Complaints
Under EPA's Title VI regulations a complaint must be filed within 180 calendar days of the
alleged discriminatory act. 40 C.F.R. § 7.120(b)(2). EPA interprets this regulation to mean that
complaints alleging discriminatory effects resulting from issuance of a permit must be filed with"
EPA within 180 calendar days of issuance of the final permit. However, OCR may waive the
180-day time limit for good cause. 40 C.F.R. § 7.120(b)(2).
OCR will determine on a case-by-case basis whether to waive the time limit for good cause. EPA
believes that, in order to encourage complainants to exhaust administrative remedies
available under the recipient's permit appeal process, thereby fostering early resolution of Title VI
issues, it is appropriate to consider in making a good cause determination a complainant's pursuit
10 EPA's Title VI regulations require that the complaint be in writing, describe the alleged
discriminatory acts that violate the regulations, and be filed within 180 calendar days of the
alleged discriminatory act(s). 40 C.F.R. § 7.120(b)(l),(2). The criteria listed above satisfy these
regulatory requirements.
11 Also, see discussion below on Timeliness of Complaints.
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8
of its Title VI concerns through the recipient's administrative appeal process. Under such
circumstances and after considering other factors relevant to the particular case, OCR may waive
the time limit if the complaint is filed within a reasonable time period <$.g., 60 calendar days) after
the conclusion of the administrative appeal process.
In addition, it is OCR's policy not to reject automatically complaints challenging permits where
such complaints are filed prior to final permit issuance by the recipient Rather, OCR should
provide the recipient with the information contained in the complaint for consideration in the
permit issuance process. OCR also may notify the complainant that the complaint is premature,
but that OCR is keeping the complaint on file in an inactive status pending issuance of a final
permit by the recipient. Should the recipient issue a final permit OCR could initiate an
investigation if OCR or the complainant believe that issuance of the final permit may be
discriminatory.
Permit Modifications
EPA believes that permit modifications that reduce adverse impacts and improve the
environmental operation of the facility should be encouraged. Similarly, the Agency does not
want to discourage merely administrative modifications, such as a facility name change, or
otherwise beneficial modifications that are neutral in terms of their impact on human health or the
environment. Because such modifications do not cause or add to adverse impacts. Title VI
discriminatory effects claims based on them are likely to be dismissed.
Permit modifications that result in a net increase of pollution impacts, however, may provide a
basis for an adverse disparate impact finding, and. accordingly, OCR will not reject or dismiss
complaints associated with permit modifications without an examination of the circumstances to
determine the nature of the modification.
In the permit modification context (as opposed to permit renewals), the matter under
consideration by the recipient is the modified operation. Accordingly, the complaint must allege,
and, to establish a disparate impact OCR must find, adverse impacts specifically associated with
the modification.
Investigations of Allegedly Discriminatory Permit Renewals
Generally, permit renewals should be treated and analyzed as if they were new facility permits.
since permit renewal is, by definition, an occasion to review the overall operations of a permitted
facility and make any necessary changes. Generally, permit renewals are not issued without public
notice and an opportunity for the public to challenge the propriety of granting a renewal under the
relevant environmental laws and regulations.
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Impacts and the Disparate Impact Analysis
Evaluations of disparate impact allegations should be based upon the facts and totality of the
circumstances that each case presents. Rather than use a single technique for analyzing and
evaluating disparate impact allegations, OCR will use several techniques within a broad
framework. Any method of evaluation chosen within that framework must be a reasonably
reliable indicator of disparity.
In terms of the types of impacts that are actionable under Title VI in the permitting context, OCR
will, until further notice, consider impacts cognizable under the recipient's permitting program in
determining whether a disparate impact within the meaning of Title VI has occurred. Thus, OCR
will accept for processing only those Title VI complaints that include at least an allegation of a
disparate impact concerning the types of impacts that are relevant under the recipient's permitting
program.12
The general framework for determining whether a disparate impact exists has five basic steps.
Step 1: Identifying the Affected Population
The first step is to identify the population affected by the permit that triggered the complaint. The
affected population is that which suffers the adverse impacts of the permitted activity. The
impacts investigated must result from the permit(s) at issue.
The adverse impacts from permitted facilities are rarely distributed in a predictable and uniform
manner. However, proximity to a facility will often be a reasonable indicator of where impacts
are concentrated. Accordingly, where more precise information is not available, OCR will
generally use proximity to a facility to identify adversely affected populations. The proximity
analysis should reflect the environmental medium and impact of concern in the case.
12 Even where a recipient's authority to regulate is unclear concerning cumulative burden
or discriminatory permitting pattern scenarios (see step 3 below), OCR will nonetheless consider
impacts measured in these terms because Title VI is a Federal cross-cutting statute that imposes
independent, nondiscrimination requirements on recipients of Federal funds. As such, Title VI,
separate from and in addition to the strictures of state and local law. both authorizes and requires
recipients to manage their programs in a way that avoids discriminatory cumulative burdens and
distributional patterns. Thus, while Title VI does not alter the substantive requirements of a
recipient's permitting program, it obligates recipients to implement those requirements in a
nondiscriminatory manner as a condition of receiving Federal funds.
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Step 2: Determining the Demographics of the Affected Population
The second step is to determine the racial and/or ethnic composition of the affected population for
the permitted facility at issue in the complaint- To do so, OCR uses demographic mapping
technology, such as Geographic Information Systems (GIS). In conducting a typical analysis to
determine the affected population, OCR generates data estimating the race and/or ethnicity and
density of populations within a certain proximity from a facility or within the distribution pattern
for a release/impact based on scientific models. OCR then identifies and characterizes the affected
population for the facility at issue. If the affected population for the permit at issue is of the
alleged racial or ethnic group(s) named in the complaint, then the demographic analysis is
repeated for each facility in the chosen universe(s) of facilities discussed below.
Step 3: Determining the Universe(s) of Facilities and Total Affected Population(s)
The third step is to identify which other permitted facilities, if any, are to be included in the
analysis and to determine the racial or ethnic composition of the populations affected by those
permits. There may be more than one appropriate universe of facilities. OCR will determine the
appropriate universe of facilities based upon the allegations and facts of a particular case.
However, facilities not under the recipient's jurisdiction should not be included in the universe of
facilities examined.
If in its investigation OCR finds that the universe of facilities selected by the complainant is not
supported by the facts, OCR will explain what it has found and provide the complainant the
opportunity to support the use of its proposed universe. If the complainant cannot adequately
support the proposed universe, then OCR should investigate a universe of facilities based upon
the facts available and OCR's reasonable interpretation of the theory of the case presented. Once
the appropriate universe(s) of facilities is determined, the affected population for each facility in
the universe should be added together to form the Total Affected Population.
Ordinarily, OCR will entertain cases only in which the permitted facility at issue is one of several
facilities, which together present a cumulative burden or which reflect a pattern of disparate
impact.1' EPA recognizes the potential for disparate outcomes in this area because most permits
control pollution rather than prevent it altogether. Consequently, permits that satisfy the base
public health and environmental protections contemplated under EPA's programs nonetheless
Ij In some rare instances, EPA may need to determine whether the impacts of a single
permit, standing alone, may be considered adequate to support a disparate impact claim. While
such a case has not yet been presented to EPA, it might, for example, involve a permitted activity
that is unique (i.e., "one of a kind") under a recipient's program.
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bear the potential for discriminatory effects where residual pollution and other cognizable impacts
are distributed disproportionately to communities with particular racial or ethnic characteristics.
Based on its experience to date, the Agency believes that this is most likely to be true either where
an individual permit contributes to or compounds a preexisting burden being shouldered by a
neighboring community, such that the community's cumulative burden is disproportionate when
compared with other communities; or where an individual permit is part of a broader pattern
pursuant to which it has become more likely that certain types of operations, with their
accompanying burdens, will be permitted in a community with particular racial or ethnic
characteristics.
Step 4: Conducting a Disparate Impact Analysis
The fourth step is to conduct a disparate impact analysis that, at a minimum, includes comparing
the racial or ethnic characteristics within the affected population. It will also likely include
comparing the racial characteristics of the affected population to the non-affected population.
This approach can show whether persons protected under Title VI are being impacted at a
disparate rate. EPA generally would expect the rates of impact for the affected population and
comparison populations to be relatively comparable under properly implemented programs. Since
there is no one formula or analysis to be applied, OCR may identify on a case-by-case basis other
comparisons to determine disparate impact.
Step 5: Determining the Significance of the Disparity
The final phase of the analysis is to use arithmetic or statistical analyses to determine whether the
disparity is significant under Title VI. OCR will use trained statisticians to evaluate disparity
calculations done by investigators. After calculations are informed by expert opinion, OCR may
make aprimafacie disparate impact finding, subject to the recipient's opportunity to rebut.
Mitigation
EPA expects mitigation to be an important focus in the Title VI process, given the typical interest
of recipients in avoiding more draconian outcomes and the difficulty that many recipients will
encounter in justifying an "unmitigated," but nonetheless disparate, impact. In some
circumstances, it may be possible for the recipient to mitigate public health and environmental
considerations sufficiently to address the disparate impact. The sufficiency of such mitigation
should be evaluated in consultation with experts in the EPA program at issue. OCR may also
consult with complainants. Where it is not possible or practicable to mitigate sufficiently the
public health or environmental impacts of a challenged permit, EPA will consider "supplemental
mitigation projects" (SMPs), which, when taken together with other mitigation efforts, may be
viewed by EPA as sufficient to address the disparate impact. An SMP can, for example, respond
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12
to concerns associated with the permitting of the facility raised by the complainant that cannot
otherwise be redressed under Title VI (i.e., because they are outside those considerations
ordinarily entertained by the permitting authority).
Justification
If a preliminary finding of noncompliance has not been successfully rebutted and the disparate
impact cannot successfully be mitigated, the recipient will have the opportunity to "justify" the
decision to issue the permit notwithstanding the disparate impact, based on the substantial,
legitimate interests of the recipient. While determining what constitutes a sufficient justificatio
will necessarily turn on the facts of the case at hand, OCR would expect that, given the
considerations described above, merely demonstrating that the permit complies with applicable
environmental regulations will not ordinarily be considered a substantial, legitimate justification.
Rather, there must be some articulable value to the recipient in the permitted activity. Because
the interests of a state or local environmental agency are necessarily influenced and informed by
the broader interest of the government of which it is a part. OCR will entertain justifications base
on broader governmental interests (i.e., interests not limited by the jurisdiction of the recipient
agency). While the sufficiency of the justification will necessarily depend on the facts of the cas
at hand, the types of factors that may bear consideration in assessing sufficiency can include, but
are not limited to. the seriousness of the disparate impact, whether the permit at issue is a renewa
(with demonstrated benefits) or for a new facility (with more speculative benefits), and whether
any of the articulated benefits associated with a permit can be expected to benefit the particular
community that is the subject of the Title VI complaint.
Importantly, a justification offered will not be considered acceptable if it is shown that a less
discriminatory alternative exists. If a less discriminatory alternative is practicable, then the
recipient must implement it to avoid a finding of noncompliance with the regulations. Less
discriminatory alternatives should be equally effective in meeting the needs addressed by the
challenged practice. Here, again, mitigation measures should be considered as less discriminators-
alternatives, including additional permit conditions that would lessen or eliminate the
demonstrated adverse disparate impacts.
The statements in this document are intended solely as guidance. This document is not intended.
nor can it be relied upon, to create any rights enforceable by any party in litigation with the Unite
States. EPA may decide to follow the guidance provided in this document, or to act at variance
with the guidance, based on its analysis of the specific facts presented. This guidance may be
revised without public notice to reflect changes in EPA's approach to implementing the Small
Business Regulatory Enforcement Fairness Act or the Regulatory Flexibility Act or to clarify and
update text.
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\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
' WASHINGTON, D.C. 20460
OCT 30 1998
OFFICE OF
CIVIL RIGHTS
RETURN RECEIPT REQUESTED
Father Phil Schmitter, Co-Director
Sister Joanne Chiaverini, Co-Director
St. Francis Prayer Center
G-2381 East Carpenter Road
Flint, Michigan 48505
Russell Harding, Director
Michigan Department of Environmental Quality
Hollister Building
P.O. Box 30473
Lansing, Michigan 48909-7973
Re: EPA File No. 5R-98-R5 (Select Steel Complaint)
Dear Fr. Schmitter, Sr. Chiaverini, and Mr. Harding,
On August 17, 1998, the Office of Civil Rights (OCR) accepted for investigation an
administrative complaint filed on June 9, 1998 by Father Phil Schmitter and Sister Joanne
Chiaverini pursuant to Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000d
et seq. (Title VI), and EPA's implementing regulations, 40 C.F.R. Part 7. The complaint alleges
that the Michigan Department of Environmental Quality's (MDEQ) issuance of a Clean Air Act
(CAA) Prevention of Significant Deterioration (PSD) permit to the Select Steel Corporation of
America for a proposed steel recycling mini-mill in Genesee Township would lead to a
discriminatory impact on minority residents and that the MDEQ permitting process was
conducted in a discriminatory manner. In addition to the allegations contained in the complaint
filed with OCR, the Complainants also submitted written information regarding alleged
.discrimination related to the permitting of the proposed Select Steel facility in an April 22, 1998
letter from Fr. Schmitter and Sr. Chiaverini to the Sugar Law Center, an April 29, 1998 letter to
David Ullrich, Acting Regional Administrator for Region V, and a June 9,1998 petition to EPA's
Environmental Appeals Board (EAB).
Appendix G: Select Steel Decision
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Title VI prohibits discrimination based on race, color, or national origin under programs
or activities of recipients of federal financial assistance. EPA has adopted Title VI implementing
regulations that prohibit unjustified discriminatory effects which occur under federally-assisted
programs or activities. 40 C.F.R. Part 7. Discrimination can result from policies and practices
that are neutral on their face, but have the effect of discriminating. Facially neutral policies or
practices that result in discriminatory effects violate EPA's Title VI regulations unless they are
justified and there are no less discriminatory alternatives.
MDEQ is a recipient of EPA financial assistance; therefore, MDEQ is subject to the
requirements of Title VI and EPA's implementing regulations. Section 7.35(b) prohibits
recipients from administering their programs in a manner that would have the effect of subjecting
individuals to discrimination because of their race, color, or national origin. Section 7.30 of
EPA's Title VI regulations provides that no person may be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any program or activity receiving
EPA assistance on the basis of race, color, or national origin.
The June 9, 1998 Title VI complaint filed with OCR refers generally to the "unfair and
disparate burden of pollution [which] will fall on a group of minority.. . people." However, in
other information provided to EPA in writing and during interviews, the Complainants also raised
specific concerns about the facility's potential emissions of volatile organic compounds (VOCs),
lead, air toxics, and dioxin.
As previously mentioned, OCR accepted the complaint for investigation in August 1998,
and has completed its review of the allegations raised. In analyzing the Complainants' concerns
regarding air quality and public health effects, EPA has determined that this facility would not
pose an "adverse" effect on the community. In this case, EPA did not base its finding on whether
the effects would be disparate since the effects did not rise to the level of "adverse." After
reviewing all the facts in this case, OCR has found that neither the Complainants' concerns
regarding air quality nor those regarding the opportunity for public participation rise to the level
of a discriminatory effect within the meaning of Title VI and EPA's implementing regulations.
Therefore, OCR dismisses Complainants' allegations in this case. The basis for this determination
is explained below.
The Investigation
EPA investigated this matter consistent with its Interim Guidance for Investigating Title
VI Administrative Complaints Challenging Permits (Interim Guidance). EPA has attempted to
conduct this investigation expeditiously, taking into account the need for certainty in the
regulatory process associated with permitting new facilities, while at the same time seriously
reviewing the concerns expressed by the Complainants.
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EPA's ability to expeditiously render this decision was facilitated significantly by the
record of decision developed by the State in this case. In addition, analyses of the kind credibly
undertaken by the State to address concerns raised during the permitting process not only
substantially enhance the probability that State-issued permits -will withstand scrutiny under Title
VI, but also enables expeditious processing by EPA of administrative complaints filed under Title
VI. Such analyses early in the permitting process may also facilitate the State's early
identification and development of possible solutions to address potential Title VI concerns.
Alleged Discriminatory Effect Resulting from Air Quality Impacts
As outlined in EPA's Interim Guidance, EPA follows five basic steps in its analysis of
allegations of discriminatory effects from a permit decision. "The first step is to identify the
population affected by the permit that triggered the complaint. The affected population is that
which suffers the adverse impacts of the permitted activity." Interim Guidance at 8. If there is no
adverse effect from the permitted activity, there can be no finding of a discriminatory effect which
would violate Title VI and EPA's implementing regulations. In order to address the allegation
that MDEQ's issuance of a PSD permit for the proposed Select Steel facility would result in a
discriminatory effect, EPA first considered the potential adverse effect from the permitted facility
using a number of analytical tools consistent with EPA's Interim Guidance. It is important to
note that EPA believes that the evaluations of adverse, disparate impact allegations should be
based upon the facts and totality of the circumstances each case presents.
VOCs
To evaluate the impact of VOCs, EPA examined the permit application submitted by
Select Steel and a variety of analyses conducted by MDEQ. With that information, EPA
considered VOCs in their role both as precursors to ozone and, for some VOCs, as toxic air
pollutants (see discussion below concerning air toxics). In examining VOCs as ozone precursors,
EPA studied the additional contribution of VOCs from the proposed Select Steel facility and has
determined those emissions will not affect the area's compliance with the national ambient air
quality standards (NAAQS) for ozone.
The NAAQS for ozone is a health-based standard which has been set at a level that is
presumptively sufficient to protect public health and allows for an adequate margin of safety for
the population within the area; therefore, there is no affected population which suffers "adverse"
impacts within the meaning of Title VI resulting from the incremental VOC emissions from the
proposed Select Steel facility. Therefore, EPA finds no violation of Title VI or EPA's
implementing regulations associated with VOCs as ozone precursors.
The Complainants also have alleged that failure to require immediate VOC monitoring for
the proposed Select Steel facility will result in a discriminatory effect. Select Steel's permit
condition regarding VOC monitoring allows Select Steel one year from plant start-up to
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implement a continuous emissions monitoring system ("CEMS") for VOCs. MDEQ is not
required to prescribe immediate VOC monitoring because EPA's regulations allow the permitting
authority to impose post-construction monitoring as it "determines is necessary." 40 C.F.R. §
52.21(m)(2). As discussed above, there would be no affected population that surfers "adverse"
impacts within the meaning of Title VI resulting from the incremental VOC emissions from the
proposed Select Steel facility. For this reason, EPA finds that, with regard to VOC monitoring,
MDEQ did not violate Title VI or EPA's implementing regulations.
Lead
Similarly, to evaluate potential lead emissions from the facility, EPA studied the additional
contribution of airborne lead emissions from the proposed Select Steel facility and has determined
those emissions will not affect the area's compliance with the NAAQS for lead. As with ozone,
there is a NAAQS for lead that has been set at a level presumptively sufficient to protect public
health and allows for an adequate margin of safety for the population within the attainment area.
Therefore, there would be no affected population which suffers "adverse" impacts within the
meaning of Title VI resulting from the incremental lead emissions from the proposed Select Steel
facility. Accordingly, EPA finds no violation of Title VI or EPA's implementing regulations.
In this case, MDEQ also appropriately considered information concerning the effect of the
proposed facility's lead emissions on blood lead levels in children in response to community
concerns. EPA reviewed this information along with other available data on the incidence and
likelihood of elevated blood lead levels in Genesee County, particularly in the vicinity of the site
of the proposed facility. EPA considered this additional information in response to the
Complainants' concerns that the existing incidence of elevated blood lead levels in children in the
vicinity of the proposed facility were already high. Overall, EPA found no clear evidence of a
prevalence of pre-existing lead levels of concern in the area most likely to be affected by emissions
from the proposed facility. Furthermore, EPA concurs with the State's finding that lead emissions
from the proposed Select Steel facility would have at most a de minimis incremental effect on
local mean blood lead levels and the incidence of elevated levels.
Air Toxics
For airborne toxics, EPA conducted its review based on information presented in the
permit application, existing TRI data, and MDEQ documents. EPA reviewed MDEQ's analysis
of Select Steel's potential air toxic emissions for evidence of adverse impacts based on whether
resulting airborne concentrations exceeded thresholds of concern under State air toxics
regulations. EPA also considered the potential Select Steel air toxic emissions together with air
toxic emissions from Toxics Release Inventory (TRI) facilities, the Genesee Power Station, and
other major sources in the surrounding area. EPA's review of air toxic emissions from both the
proposed site alone, as well as in combination with other sources, found no "adverse" impact in
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the immediate vicinity of the proposed facility. Therefore, EPA finds no violation of Title VT or
EPA's implementing regulations.
Dioxin
The information gathered from the investigation concerning the monitoring of dioxin
emissions is consistent with EAB's analysis of the issue.1 No performance specifications for
continuous emissions monitoring systems have been promulgated by EPA to monitor dioxins.
Without a proven monitor, MDEQ was unable to impose a monitoring requirement on the source.
Therefore, EPA finds no discriminatory effect associated with MDEQ's decision not to include
monitoring requirements for dioxin and that MDEQ did not violate Title VI or EPA's
implementing regulations.
Alleged Discriminatory Public Participation Process
To assess the allegations of discrimination concerning public process, EPA evaluated the
information from interviews with Complainants and MDEQ, and from documents gathered from
the parties. The first allegation was that the permit was "hastily sped through" by MDEQ to
avoid permitting requirements (i.e., conduct a risk assessment; provide opportunity for public
comment on risk assessment; provide meaningful opportunity for all affected parties to participate
in the permit process) imposed by a State trial court that are under appeal. The five months
between receipt of the complete permit application and permit approval is actually slower than
the average time of one and a half months for the past twenty-six PSD permits approved by
MDEQ. EPA's review found that the public participation process for the permit was not
compromised by the pace of the permitting process. MDEQ satisfied EPA's regulatory
requirements concerning the issuance of PSD permits.
The Complainants also alleged that the relationship between an employee of Select Steel's
consultant who is a former MDEQ employee and MDEQ led to improprieties in the permitting
process. Neither the documents nor the interviews revealed any improper or unlawful actions by
MDEQ and Select Steel's consultants during the permitting of Select Steel. Without any such
evidence, EPA cannot find any impropriety existed that contributed to an alleged discriminatory
process.
1 In the EAB's analysis of Complainants' PSD appeal concerning monitoring of dioxin,
the Board similarly concluded that "MDEQ's decision is not clearly erroneous." In re Select Steel
Corporation of America, Docket No. PSD 98-21, at 5 (EAB Sept. 10, 1998). That holding was
based, in part, on the fact that the Complainants made "no argument and points out no data to
refute MDEQ's judgment." Id
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The Complainants alleged that the manner of publication of the notice of the permit
hearing also contributed to the alleged discriminatory process. The Complainants allege that
publication in newspapers was insufficient to inform the predominantly minority community
because few community members have access to newspapers — something the Complainants
allege was brought to MDEQ's attention during the permitting process for another facility in
Genesee Township. EPA's regulations for PSD permitting require that notice of a public hearing
must be published in a weekly or daily newspaper within the affected area. 40 C.F.R. §
124.10(c)(2)(i). In this case, MDEQ went beyond the requirements of the regulation and
published notices about the hearing in three local newspapers.-
Complainants also state that MDEQ's failure to provide individual notice of the hearing to
more members of the community also contributed to the alleged discriminatory process. In
addition to newspaper notice, EPA's regulations require that notice be mailed to certain interested
community members. 40 C.F.R. § 124.10(c)(l)(ix). MDEQ mailed hearing notification letters a
month in advance to Fr. Schmitter, Sr. Chiaverini, and nine other individuals in the community
who had expressed interest in the Select Steel permit — an action which is consistent with the
requirements of EPA's regulations. The mailing list that MDEQ developed was adequate to
inform the community about the public hearing, in part, because the Complainants took it upon
themselves to contact other members of the community.
The Complainants also alleged that the location of the public hearing (Mount Morris High
School) made it difficult for minority members of the community to attend. Complainants felt that
the hearing should have been held at Carpenter Road Elementary School. Both schools are
approximately two miles from the proposed Select Steel site; however, the elementary school is
located in a predominantly minority area, while the high school is in a predominantly white area.2
MDEQ explored other possible locations and chose the high school, among other reasons,
because of its ability to accommodate the expected number of citizens and its close proximity to
the proposed site. The high school also is accessible by the general public via Genesee County
public transportation.
. For all of these reasons, EPA finds that the public participation process for the Select Steel
facility was not discriminatory or in violation of Title VI or EPA's implementing regulations.
Conclusion
After reviewing all of the materials submitted and information gathered during the
investigation, EPA has not found a violation of Title VI and EPA's implementing regulations.
2 No concerns were raised about the manner in which the public hearing itself was
conducted. See Telephone Interview with Complainants (September 17, 1998).
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Accordingly, EPA is dismissing the complaint as of the date of this letter. Please note that the
closure of this case does not affect your right to file a complaint with OCR in the future.
Although EPA has dismissed this complaint, we believe that the Complainants raised serious
and important issues that merited a careful review. To the extent the Complainants have identified
general concerns about pollution in their community, including existing elevated blood lead levels in
children, EPA encourages the State to continue activities to address these concerns. EPA is available
to provide technical assistance in these efforts. EPA also encourages the State to continue working
with this community to improve understanding of regulated activities in their local environment and
the Agency is available to facilitate these efforts should the parties so desire.
More broadly, EPA believes that many of the issues raised hi the context of Title VI
administrative complaints could be better addressed through early involvement of affected
communities in the permitting process. Such consultations will better ensure that communities are
fairly and equitably treated with respect to the quality of their environment and public health, while
providing State and local decision makers and businesses the certainty they deserve.
In conclusion, please be aware that Title VI provides all persons the right to file complaints
against recipients of federal financial assistance. No one may intimidate, threaten, coerce, or engage
in other discriminatory conduct against anyone because he or she has either taken action or
participated in an action to secure rights protected under Title VI. 40 C.F.R. § 7. 100. Any individual
alleging such harassment or intimidation may file a complaint. 40 C.F.R. § 7.120(a). The Agency
would seriously consider and investigate such a complaint if warranted by the situation.
Furthermore, under the Freedom of Information Act, it may be necessary to release this
document and related correspondence and records upon request. In the event that we receive such
a request, we will seek to protect, to the extent provided by law, personal information which, if
released, could constitute an unwarranted invasion of privacy.
Sincerely,
' Ann E. Goode
Director
cc: Mr. Robert Bosar, Vice President
Dunn Industries Group, Inc.
7000 Winner Road, Suite 201
Kansas City, Missouri 64125
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Scott Fulton
Acting General Counsel
David Ullrich
Acting Regional Administrator
Region V
U.S. EPA
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U.S. Environmental Protection Agency
Office of Civil Rights
INVESTIGATIVE REPORT
for
Title VI Administrative Complaint File No. 5R-98-R5
(Select Steel Complaint)
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I. INTRODUCTION
On August 17, 1998, the United States Environmental Protection's ("U.S. EPA") Office of Civil
Rights ("OCR") accepted for investigation an administrative complaint filed on June 9,1998 by
Father Phil Schmitter and Sister Joanne Chiaverini against the Michigan Department of
Environmental Quality ("MDEQ") pursuant to Title VI of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 2000d et seq. ("Title VI"), and EPA's implementing regulations, 40
C.F.R. Part 7. The complaint alleged that MDEQ's issuance of a Clean Air Act ("CAA")
prevention of significant deterioration ("PSD") permit to the Select Steel Corporation of America
for a proposed steel recycling mini-mill in Genesee County would lead to a discriminatory
impact on minority residents and that the MDEQ permitting process was conducted in a
discriminatory manner. See Letter from Fr. Phil Schmitter and Sr. Joanne Chiaverini, Co-
Directors, St. Francis Prayer Center, to Diane [sic] E. Goode, Director, US EPA OCR (June 9,
1998) ("Title VI Complaint").3
In addition, Fr. Schmitter and Sr. Chiaverini provided information in an earlier letter to Kary
Moss of the Maurice & Jane Sugar Law Center. Letter from Fr. Schmitter and Sr. Chiaverini to
Kary Moss (April 22, 1998). That letter was transmitted to the EPA and it expressed a number of
concerns over the proposed Select Steel facility.
Fr. Schmitter and Sr. Chiaverini also submitted information regarding alleged discrimination in
an earlier letter to EPA Region V. Letter from Fr. Schmitter and Sr. Chiaverini to David Ullrich,
Acting Regional Administrator, EPA Region V (April 29, 1998) ("April 29th Letter"). This letter
enclosed the testimony that Fr. Schmitter and Sr. Chiaverini provided to MDEQ at its April 28,
1998 public hearing on the proposed Select Steel permit. On May 15,1998, David Ullrich
forwarded the April 29th Letter to EPA because it expressed concerns about Title VI matters
which are the responsibility of EPA to resolve.
Fr. Schmitter and Sr. Chiaverini also alleged that MDEQ violated Title VI in a June 9,1998
petition to EPA's Environmental Appeals Board ("EAB"). Letter from Fr. Schmitter and Sr.
Chiaverini to EAB (June 9,1998) ("EAB Petition"). The EAB denied review of the Title VI
claim on jurisdictional grounds citing EPA's responsibility for ensuring Agency compliance with
Title VI. In re Select Steel Corporation of America, Docket No. PSD 98-21 (Sept. 10, 1998)
("EAB Decision"). The EAB also denied review of the other claims regarding the alleged
deficiencies of the Select Steel permit because the petition identified neither clear error in
3 The complaint filed by Fr. Schmitter and Sr. Chiaverini is supported by the community
group Flint-Genesee United for Action, Justice, and Environmental Safety. Letter from Lillian
Robinson, President, and Janice O'Neal, Spokesperson, Flint-Genesee United for Action, Justice,
and Environmental Safety, to Patrick Chang, U.S. EPA (August 1,1998); Telephone Interview
with Fr. Schmitter, Sr. Chiaverini, and Ms. O'Neal (Sept. 17,1998).
1
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MDEQ's decision making processes nor an important policy consideration that justified EAB
review. 40 C.F.R. § 124.19(a).
The MDEQ has received, and continues to receive. EPA financial assistance and. therefore, is
subject to the requirements of Title VI and EPA's implementing regulations/
" The S2.3 million in air grants for FY98 were awarded by EPA to MDEQ via grant
A005711-98 (awarded on Sept. 30. 1997). There were three amendments: A005711-98-1 (Feb.
3. 1998): A005711-98-2 (April. 24. 1998): and A005711-98-3 (Sept. 21. 1998).
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II. ALLEGATIONS
A. Allegation Regarding Air Quality Impacts
In the Title VI Complaint, Fr. Schmitter and Sr. Chiaverini allege that MDEQ's issuance of the
Select Steel permit will result in "grievous discriminatory effects" and that a "disparate burden of
pollution will fall upon a group of minority ... people." Title VI Complaint at 1.
In their April 29th letter, Fr. Schmitter and Sr. Chiaverini stated they were sending the
information "out of deep concern that another Title VI Civil Rights Violation is in the making, as
the Michigan Department of Environmental Quality rushes to grant" the Select Steel permit in an
"area near high concentrations of minority ... residents." In that same letter, Fr. Schmitter and
Sr. Chiaverini request relief from "the disregard the MDEQ has for considering high
concentrations of minorities around potential sources of pollution."
In their EAB petition, Fr. Schmitter and Sr. Chiaverini make the general allegation that MDEQ's
decision to grant this permit violates Title VI of the Civil Rights Act because "the vast majority
of the people within 3 miles of the proposed site are minority Americans and will be burdened
with a disparate impact of pollution in an already deeply polluted area." EAB Petition at 1.
In the testimony enclosed in the April 29th Letter, in their EAB petition, and during EPA's
September 17th and 29th interviews, Fr. Schmitter and Sr. Chiaverini raised the following
concerns about the disparate impact resulting from specific potential emissions from the
proposed Select Steel facility:
1. volatile organic substances ("VOCs") (April 29th Letter, EAB Petition, Interview
with Fr. Schmitter, Sr. Chiaverini, Ms. O'Neal, in Flint, MI (Sept. 29,1998));
2. lead, including the effect of increased emissions will have on the children of Flint
(April 29th letter, EAB Petition, Interview with Complainants (Sept. 29, 1998));
3. manganese (Interview with Complainants (Sept. 29, 1998));
4. mercury (Interview with Complainants (Sept. 29,1998)); and
5. dioxin (April 29th letter, EAB Petition, Interview with Complainants (Sept. 29,
1998)).
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B. Allegation Regarding Discrimination in Public Participation
1. Timing of permit issuance
Complainants felt that the permit was "hastily sped through, and shepherded by the DEQ permit
process" to avoid a potentially adverse decision in ongoing litigation over another facility in the
area, the Genesee Power Station ("GPS").5 Title VI Complaint. In the GPS case, MDEQ
appealed a trial court's order that (1) a risk assessment must be performed before a major air
pollution source may be permitted, (2) notice of the risk assessment and an opportunity to
comment must be provided, and (3) all affected parties must be given a meaningful opportunity
to participate in the permit process. NAACP-Flint Chapter v. MDEQ, No. 95-38228-CV (Mich.
Cir. Ct. Genesee Cnty. July 28,1997) (order granting plaintiffs' motion for a permanent
injunction). Complainants in the Select Steel case, then, argued that MDEQ issued the PSD
permit to Select Steel on an expedited basis to avoid having to perform those tasks in the event
the Court of Appeals upheld the trial court's decision. See Title VI Complaint; Interview with
Complainants (Sept. 29,1998).
They indicated that the initial news about the proposed Select Steel facility came from an article
published in The Flint Journal on December 6, 1997. Tom Wickham, Steel Mill Eyes Local Site,
The Flint Journal (December 6,1997). The story raised some concerns for the Complainants, so
in January or February 1998, they contacted MDEQ's Thermal Process Unit Supervisor. During
the course of that conversation, Complainants allege that the Supervisor said that the Select Steel
permit process would take "a long time." Based on that conversation, Complainants felt that
MDEQ misled them into thinking it would be at least a year until the permit was issued, but it
was ultimately issued four months later, on May 27,1998, shortly before the June 9,1998 oral
argument in the GPS case.
2. Relationship Between Select Steel and MDEQ
Complainants also believed that the integrity of the permitting process was compromised
because Select Steel retained Dhruman Shah, a former MDEQ employee, as their consultant.
From 1979 to 1995, Mr. Shah was employed by MDEQ in various positions in which he
reviewed permit applications for compliance with state and federal requirements. After leaving
MDEQ, Mr. Shah became a Senior Project Engineer for NTH Consultants, Ltd. Select Steel
hired NTH Consultants to prepare and submit their PSD application to MDEQ. NTH
5 Flint-Genesee United for Action, Justice, and Environmental Safety, and the NAACP-
Flint Chapter filed an action in the Circuit Court for the County of Genesee against MDEQ
concerning the issuance of a permit for the construction of GPS, a wood waste fired steam
electric plant. MDEQ appealed. The Michigan Court of Appeals accepted the case and a stay of
the Circuit Court's decision was issued. NAACP-Flint Chapter v. MDEQ, No. 205-264 (Mich.
Ct. App. Oct. 2,1997) (ordering stay of permanent injunction pending outcome of appeal).
000091
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Consultants, in turn, selected Mr. Shah as one of its engineers on the Select Steel project.
Complainants felt that the relationship between Select Steel's consultant and MDEQ led to some
improprieties in the permitting process. See Telephone Interview with Complainants (Sept. 17,
1998).
3. Notice of Public Hearing
In addition, Complainants raised issues about the notice for the public hearing on the Select Steel
permit application conducted by MDEQ. MDEQ published notices about the public hearing in
The Flint Journal on March 27,1998 and March 28, 1998, in The Suburban News on March 29,
1998, and in The Genesee County Herald on April 1, 1998. Complainants felt that notifications
published in newspapers were not sufficient to inform their community about the public hearing.
Complainants stated that few members of their community receive newspapers because they
cannot afford to subscribe and because no one would deliver the newspapers to those areas.
Moreover, Complainants alleged that MDEQ was aware of the insufficiency of newspaper notice
because Complainants noted that members of the community did not have ready access to
newspapers during the course of the GPS litigation. See Telephone Interview with Complainants
(Sept. 17, 1998). Consequently, Complainants felt that MDEQ should have done more to notify
the community about the public hearing. See id.
MDEQ mailed letters to some members of the community, including Fr. Schmitter and Sr.
Chiaverini, notifying them about the public hearing. Complainants argued that MDEQ should
have conducted a broader mailing that encompassed larger portions of the community. See id.
4. Location of Public Hearing
Complainants also alleged that the location of the public hearing made it difficult for minority
members of the community to attend. MDEQ held the hearing at the Elizabeth Ann Johnson
(Mount Morris) High School, 8041 Neff Road, Mount Morris, which is located approximately
two miles from the site of the proposed facility. Complainants felt that the hearing should have
been held at Carpenter Road Elementary School, 6901 Webster Road, Flint, Michigan, which is
also located approximately two miles from the proposed site. See Telephone Interview with
Complainants (Sept. 17,1998). Carpenter Road Elementary School, however, is located south-
east of the proposed site in a predominantly minority area, whereas Mount Morris High School is
located north-west of the proposed site in a predominantly white area.6
6 No concerns were raised about the manner in which the public hearing itself was
conducted. See Telephone Interview with Complainants (September 17,1998).
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III. METHODOLOGY
In order to assure that EPA had the necessary information to assess the allegations raised by
Complainants, the Agency undertook a comprehensive effort to collect data. That effort began
by gathering all of the information that the Agency had in its possession relevant to the
complaint. Then, an investigator conducted a telephone interview on September 17,1998 with
Complainants, including Fr. Phil Schmitter and Sr. Joanne Chiaverini, Co-Directors, St. Francis
Prayer Center; Lillian Robinson, President, Flint-Genesee United for Action, Justice, and
Environmental Safety; and Janice O'Neal, Spokesperson, Flint-Genesee United for Action,
Justice and Environmental Safety.
That was followed-up by a visit to Genesee County, Michigan and another interview with Fr.
Schmitter, Sr. Chiaverini, and Janice O'Neal on September 29,1998. That same day,
investigators conducted an interview with representatives of the local health department,
including Brian McKenzie, Jan Hendricks, and Toni McCrumb, Genesee County Health
Department. The next day, the investigators collected documents from the Complainants.
On October 15,1998, investigators visited Lansing, Michigan and collected documents from
MDEQ. The next week, on October 21,1998, investigators returned to Lansing and interviewed
employees of MDEQ, including Brian Culham, Environmental Quality Analyst, Air Quality
Division District Office; Dennis Drake, Chief, MDEQ Air Quality Division; Susan Robertson,
State Assistant Administrator, MDEQ; Hien Nguyen, Permit Engineer, MDEQ; Lynn Fiedler,
Supervisor, MDEQ Air Quality Division Permit Section; Robert Sills, Toxicologist, MDEQ; and
Jeff Jaros, Modeling and Meteorology Unit, MDEQ.
Throughout the information collection effort, EPA was performing analyses on the available
data. Regarding VOC-related concerns, EPA undertook a two-pronged approach that considered
VOCs in then- role both as precursors to ozone and, for some VOCs, as hazardous air pollutants.
For the former approach, EPA examined the surrounding region to determine whether it satisfied
the federal ambient air quality standards for ozone. Then, the Agency studied the additional
contribution of ozone precursors from the proposed Select Steel facility to determine how those
emissions would affect the region's compliance with the National Ambient Air Quality
Standards ("NAAQS"). For the latter approach, reviewed MDEQ's analysis of Select Steel's
potential air toxic emissions for evidence of adverse impacts based on whether resulting airborne
concentrations exceeded thresholds of concern under State air toxics regulations. EPA also
considered the potential Select Steel air toxic emissions together with air toxic emissions from
Toxics Release Inventory facilities, the Genesee Power Station, and other major sources in the
surrounding area.
Similarly, for other hazardous air pollutants, an analysis of the distribution of airborne toxic
emissions was conducted, based on the information presented in the permit application and
MDEQ documents.
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To evaluate lead emissions, EPA evaluated the contribution of airborne lead from the proposed
facility and the NAAQS for lead. In addition, EPA examined health data from the community
surrounding the proposed facility. Particular attention was paid to children's lead exposures
based on Complainants' allegation that '"the children of Flint are already 'maxed out' on lead
and are 50% above the national average of lead blood levels for children'." EAB Petition
(quoting Dr. Rebecca Bascomb, M.D.). The Genesee County Health Department submitted
information about blood lead levels in local children. MDEQ provided an analysis of lead
deposition that they conducted in response to comments received during the permitting process.
EPA gathered that data and analyzed it in light of the complaint.
To assess the allegations concerning public process, EPA evaluated the information from
interviews with Complainants and MDEQ, and from documents gathered from the parties. The
Agency then organized the information to determine how the process had been conducted and
whether any problems arose.
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IV. POSITION STATEMENT FROM THE RECIPIENT
A. Allegation Regarding Air Quality Impacts
MDEQ responded to the Title VI complaint on September 18, 1998. See Michigan Department
of Environmental Quality's Response to the St. Francis Prayer Center Title VI Complaint of June
9,1998 Regarding Select Steel at 1 (Sept. 18,1998) ("MDEQ Response to Complaint"). MDEQ
argued that an analysis of the air quality impacts of the proposed Select Steel facility should be
limited to the impacts that fall within one mile of the site. Beginning from that position, MDEQ
found that the population within 0.5 miles of the site is 88.5-93.1% white and 4.4-7.7% black.
Within one mile, MDEQ found that the population is 93.3-94.3% white and 3.8-4.2% black.
MDEQ stated that inclusion of populations beyond one mile was "virtually irrelevant." Id. at 2.
MDEQ noted that the 0.5 mile and one mile population number show no disparate impact and
that Michigan's population is 83.4% white and 13.3% black. In addition, MDEQ argued that
"the levels of pollution emitted by Select Steel are safe for everyone."7 Id. MDEQ concluded
that "there is no evidence that the granting of a permit for Select Steel has had any disparate
impact on minorities." Id. at 3.
1. VOCs
In their EAB petition and in the materials enclosed in the April 29,1998 letter to EPA Region V,
Fr. Schmitter and Sr. Chiaverini raise concerns that the Select Steel permit will allow VOC
emissions to go unmonitored for the first eighteen months of the mill's operation. MDEQ felt
that VOC emissions would not pose a problem. The Permit Engineer believed that VOC
emissions from the proposed facility would be comparable to VOC emissions from one-gallon of
paint. See Interview with Hien Nguyen (Oct. 21,1998).
2. Lead
In their EAB petition, Fr. Schmitter and Sr. Chiaverini alleged that Select Steel's permit was
deficient because it lacks a monitoring requirement for lead. In response to the EAB Petition,
MDEQ stated the technology that would allow continuous monitoring of lead emissions does not
exist. In the absence of such technology, MDEQ chose to ensure Select Steel's compliance with
the lead emissions limit by requiring the company to install a baghouse for the melt-shop that
MDEQ determined satisfies the requirements of best available control technology ("BACT").
MDEQ determined that "even with the addition of the lead proposed to be emitted by Select
Steel, the lead concentrations would be more than ten times lower than the National Ambient Air
Quality Standards" of 1.5 micrograms per cubic meter (quarterly average). Response of the
7 MDEQ noted, "'Safe' does not mean risk free," citing Natural Resources Defense
Council v. U.S. EPA, 824 F.2d 1146 (D.C. Cir. 1987). MDEQ Response to Complaint at 2 n.2.
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Michigan Department of Environmental Quality to the Petition of the St. Francis Prayer Center at
2, In re Select Steel Corporation of America, Docket No. PSD 98-21 (Aug. 19, 1998) ("MDEQ
Response to PSD Appeal").
In the materials enclosed in the April 29, 1998 letter to EPA Region V, Fr. Schmitter and Sr.
Chiaverini alleged that blood lead levels in children living in the vicinity of the proposed steel
mill are already 'maxed out' on lead and are 50% above the national average of lead blood levels
for children." EAB Petition at 1. In response, MDEQ, however, cites a blood lead level study it
conducted that indicates the "level of concern" for lead is 10 micrograms per deciliter ("//g/dL").
Robert Sills, MDEQ, Evaluation of the Potential Dry Deposition and Children's Exposures to
Lead Emissions from the Proposed Select Steel Facility, at 2 (May 15,1998) ("BLL Study"). At
blood lead levels above this threshold, children's development and behavior may be adversely
affected. See id.
MDEQ stated that it conducted the BLL Study to estimate the potential for air deposition of lead
from Select Steel into soil around the proposed facility. MDEQ estimated background levels of
lead in air and soils and combined those figures with three different estimates of the amount of
lead present in house dust (high, medium, and low). MDEQ then analyzed the differences
between children's environmental lead exposure under these three scenarios, in each instance
comparing current estimated background blood lead levels (alternative "a") to estimated blood
lead levels after adding in Select Steel's projected emissions (alternative "b"). See id.
3. Manganese
In the permit application, Select Steel proposed a manganese emission limit of 0.24 Ib/hr which
resulted in ambient air impacts greater than the initial threshold screening level (ITSL) of
Michigan Air Toxics Rule 230. Mich. Admin. Code r. 336.1230 ("Air toxics from new and
modified sources"). The ITSL for manganese is 0.05 micrograms per cubic meter on a 24 hour
basis. MDEQ notified Select Steel of this deficiency in a letter dated February 5, 1998. To
correct this deficiency, Select Steel proposed to enclose the roof monitor above the electric arc
furnace ("EAF"), and install a hood and vent the captured emissions to the EAF baghouse.
Letter from John F. Caudell, NTH Consultants, to Hien Nguyen, MDEQ (Feb. 20, 1998). The
size of the baghouse was increased from 350,000 actual cubic feet per minute ("acfrn") to
400,000 acfm to accommodate the added flow from the new hood. In addition to the added
control equipment, MDEQ imposed a BACT emission limit of 0.054 Ibs/hr based on stack test
data contained in another permit application (Republic Steel). The proposed changes resulted in
a maximum impact on the ambient air of 0.03 micrograms per cubic meter, which is below the
level specified by the State of Michigan as protective of human health for manganese. Air
Quality Division, MDEQ, Select Steel Corporation of America, Ouestions-and-Ans-wers
Document, at 2 (April 28, 1998). MDEQ felt that those requirements for manganese from steel
and iron mills are very strict. Interview with Hien Nguyen (Oct. 21, 1998).
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4. Mercury
MDEQ stated that as a result of public comments, it requested additional analysis of mercury
emissions. Briefing on Select Steel Air Use Permit (undated); Interview with Dennis Drake (Oct.
21,1998). Because the facility is in the Mott Lake Watershed and could impact mercury levels
in fish, the analysis supported the reduction of the mercury emission limit from 0.05 pound per
hour in the draft permit to 0.005 pound per hour in the final permit. MDEQ personnel indicated
that the mercury emission limit is the lowest of any permit issued for mini-mills and noted that
most permits in EPA's Best Available Control Technology/Lowest Achievable Emissions Rate
(BACT/LAER) Clearinghouse have no mercury limits at all. Interview with Hien Nguyen (Oct.
21,1998).
5. Dioxin
In their EAB petition and in the materials enclosed in the April 29,1998 letter to EPA Region V,
Fr. Schmitter and Sr. Chiaverini alleged that the permit allows dioxin emissions to be
unmonitored for the first eighteen months of the mill's operation. MDEQ responded that it did
not require dioxin monitoring because continuous emissions monitoring systems ("CEMS") for
dioxin do not exist. MDEQ Response to PSD Appeal at 6. MDEQ also claimed that EPA
conducted research on American electric arc furnaces and concluded that dioxin emissions are
not a concern in the operation of such furnaces. EPA reportedly found that American electric arc
furnaces do not use chlorinated solvents in the melting process, that the electric arc furnaces are
operated at very high temperatures, and that radiant heat from electricity (rather than coke
combustion) is used to melt the scrap metal.8 MDEQ Response to PSD Appeal at 7; Air Quality
Division, MDEQ, Select Steel Corporation of America, Response to Comments Document at 8
(May 27,1998).
B. Allegation Regarding Discrimination in Public Participation
1. Timing of permit issuance
MDEQ argues that Complainants' allegation that it accelerated the issuance of the permit in
order to avoid consequences of a potentially adverse decision the GPS case is incorrect because
(1) the Circuit Court's decision in the GPS case "expressly dismissed all disparate impact claims
against the MDEQ" and (2) the Michigan Court of Appeals stayed the Circuit Court's decision
pending the outcome of the appeal. MDEQ Response to Complaint at 1.
8 The U.S. EPA has stated, in part, "No testing of CDD/CDF emissions from U.S.
electric arc furnaces has been reported upon which to base an estimate of national emissions."
Exposure Analysis and Risk Characterization Group, U.S. EPA, The Inventory of Sources of
Dioxin in the United States, at 7-14 (April 1998).
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In addition, according to MDEQ staff, the five months that lapsed between the submission of the
permit application and the issuance of the permit was fairly typical. Among the last twenty-six
PSD permits approved by MDEQ, the average time between receipt of the application and
approval of the permit was 242 days. The average time between the receipt of a complete
application and approval was only 49 days. Message transmitted by facsimile from Lynn Fiedler
to Richard Ida, at 4 (Oct. 28, 1998) (providing table of PSD permit processing times for last three
years).
2. Relationship Between Select Steel and MDEQ
Some MDEQ employees, including Dennis Drake, Director, MDEQ Air Quality Division, noted
their awareness of Mr. Shah's job with NTH Consultants, but were not aware that Mr. Shah was •
involved in the Select Steel application. Interviews with Dennis Drake and Robert Sills (October
21,1998). Those MDEQ employees who knew about Mr. Shah's role in developing the Select
Steel permit, including the Permit Engineer and Thermal Process Unit Supervisor, stated that no
special treatment was given to Mr. Shah or to the Select Steel permit application. Interview with
Hien Nguyen and Lynn Fiedler (October 21,1998).
3. Notice of Public Hearing
MDEQ argued that it went beyond the requirements of the regulation and published notices about
the hearing in three local newspapers: The Flint Journal on March 26,1998, and March 27,
1998; The Suburban News on March 29,1998; and The Genesee County Herald on April 1,
1998. Regarding direct notification about the hearing, MDEQ limited its mailings because they
believed that Fr. Schmitter and Sr. Chiaverini would act as the contact point for their community
and alert other interested parties about the proceedings. Interview with Lynn Fiedler (Oct. 21,
1998).
4. Location of Public Hearing
To select a site for the public hearing, MDEQ considered a number of criteria: (1) proximity to
proposed facility, (2) sufficient capacity for attendees, (3) rental cost, (4) other accommodation-
related considerations (e.g., lighting, acoustics, adjacent rooms), and (5) availability. Interviews
with Lynn Fiedler and Brian Culham (Oct. 21,1998). For the public hearing on the Select Steel
permit application, MDEQ expected up to 200 attendees, which limited the possible venues for
the hearing. Interview with Susan Robertson (Oct. 21,1998).
A MDEQ memorandum indicates that "there would be ... a public hearing in the local area1-
either Carpenter Road school or another school close to the facility." Memorandum from Lynn
Fiedler to the file (Dec. 8, 1997). The Air Quality Division Hearing Officer indicated that the
first location she contacted was the Carpenter Road School. Other MDEQ employees felt that
Carpenter Road School did not have adequate facilities for the Select Steel public hearing.
Interviews with Brian Culham and Lynn Fiedler (Oct. 23, 1998). MDEQ also contacted the
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Beecher High School and its feeder schools. Telephone Interview with Judy Williams. Parent
Involvement Coordinator. Beecher School District (Oct. 26. 1998). MDEQ felt that the
administration of those schools seemed averse to hosting a controversial hearing. Interviews
with Susan Robertson and Lynn Fiedler (Oct. 21. 1998). MDEQ ultimately held the public
hearing at Mount Morris High School, approximately two miles from the proposed facility.
which they believed was a reasonable site. Interview with Lynn Fiedler (Oct. 21. 1998).
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V. FINDINGS OF FACT AND STATUTORY/REGULATORY PROGRAMS
^
A. Allegation Regarding Air Quality Impacts
1. Background
a. Proposed Select Steel Corporation of America Facility
The proposed Select Steel facility is a steel mini-mill which is expected to produce 43 tons per
hour of specialty steels. It will process scrap steel by "melting the scrap" in an electric arc
furnace. The liquid steel is then transferred into a ladle furnace where it is reheated and
chemically adjusted to required specifications. The molten steel is then cast and water-cooled in
a mold to the desired shape.
The proposed Select Steel facility will be located near the boundary of census tract 122.01 within
a 53 acre land parcel at the southwest comer of the intersection of Lewis Road and East Stanley
Road, in Genesee County, Michigan, 48485. The facility will be located in Genesee County, Air
Quality Control Region 122, see 40 C.F.R. § 81.195, less than one mile from the northern
boundary of the city of Flint, Michigan at a latitude of 43° 6 '9" and longitude of 83° 40' 48".
The Select Steel facility is a major stationary source with the "potential to emit" 100 tons per
year or more of the criteria pollutants, oxides of nitrogen ("NOx"), carbon monoxide ("CO"),
paniculate matter ("PM"), and lead. The facility is subject to the PSD regulations, 40 C.F.R. §
52.21, which require the installation of B ACT for the four pollutants mentioned above. The
facility is also subject to MDEQ rule 702 and 230 which requires the installation of BACT for
VOC's.
The Select Steel Corporation of America submitted its initial PSD permit application under the
Clean Air Act to MDEQ for the proposed mini-mill on December 30, 1997. MDEQ reviewed
the application and sent a letter of deficiencies in the permit application on February 5,1998, and
requested additional information be submitted. Select Steel submitted their response on February
20,1998. Changes and selection of BACTs for the criteria pollutants were made, including
provisions to address the ambient air impacts of toxic air contaminants as required by MDEQ
rule 230. Select Steel selected BACT for PM/PM10, NOx, CO, and VOCs. EPA reviewed the
permit and supporting information (e.g., staff report, BACT analysis, previous BACT
determinations) and submitted comments during the public comment period. MDEQ approved
the Select Steel permit on May 27,1998.
b. Proximate Population Characteristics
In the 1990 Census, the total population of Michigan was 9,295,297 with 17.6 % minority
population. The complaint alleges that minority populations within 3 miles of the proposed
Select Steel will bear a "disparate impact of pollution." At one mile from a point location
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representing the approximate center of the facility land parcel, the population is 13.8% minority,
at two miles it is 37.2% minority, at 3 miles it is 51.1% minority, at 4 miles it is 55.2% minority.
See Table II: EPA Estimates of Population Characteristics Near Proposed Site.
c. Air Quality Regulatory Programs
i. Overview of National Ambient Air Quality Standards
The Clean Air Act ("CAA") requires the Administrator of U.S. EPA to publish primary and
secondary NAAQS for criteria air pollutants. Section 109 of the CAA, 42 U.S.C. § 7409.
NAAQS are health-based standards which are established by the Administrator as necessary to
"protect the public health" and must allow for an adequate margin of safety. Section 109(b) of
the CAA, 42 U.S.C.§7409(b).
Under section 107(d) of CAA, 42 U.S.C. § 7407(d), each state is required to designate those
areas within its boundaries where the air quality meets or does not meet the NAAQS for each
listed pollutant, or where the air quality cannot be classified due to insufficient data
("unclassifiable"). An area that meets the NAAQS for a particular pollutant is termed an
"attainment" area, and an area that does not is termed a "nonattainment" area. Among the listed
criteria air pollutants are ozone and lead.
NAAQS, when met, provide public health protection with an adequate margin of safety,
including protection for group(s) identified as being sensitive to the adverse effects of the
NAAQS pollutants. EPA recognizes that there is no discernible threshold of physiological
effects identified for any of the NAAQS pollutants and that there is a wide variability of
responsiveness among individuals. EPA further recognizes, however, that setting of the NAAQS
ultimately requires public health policy judgments of the Agency as to when physiological
effects become medically significant and a matter of public health concern.
ii. Overview of Prevention of Significant Deterioration (PSD)
Standards
The Clean Air Act's PSD program applies to all areas of the country designated as "attainment"
or "unclassifiable" relative to the NAAQS. CAA section 161,42 U.S.C. § 7471. Genesee
County is classified as an attainment area for all criteria pollutants except ozone. Genesee
County was initially designated as a nonattainment area for the old 1-hour ozone standard. 43
Fed. Reg. 8962 (March 3,1978); 45 Fed. Reg. 37188 (June 2,1980). Genesee County
demonstrated compliance with the old 1 -hour ozone standard based upon three years of air
quality data. 63 Fed. Reg. 31014 (June 5,1998). In practical terms, this means that the old
classification of "nonattainment" has been superseded by a determination that Genesee County
was meeting the old ozone standard.
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Under the Clean Air Act, each state must include a PSD program in its state implementation
plan. CAA sections 110(a)(2)(C) and 161; 42 U.S.C. §§ 7410(a)(2)(C) and 7471. Among other
things, a PSD program must ensure that new major stationary sources employ the best available
control technology to minimize the emissions of regulated pollutants. 42 U.S.C. § 7475(a)(4); 40
C.F.R. §§ 52.21(j)(2) and 51.166(j)(2). The statute gives permitting authorities substantial
discretion to determine BACT in a manner consistent with the environmental protection goals of
the PSD program, requiring consideration of "energy, environmental, and economic impacts."
CAA section 169(3); 42 U.S.C. § 7469(3).
If a state does not submit an approvable PSD program, the federal PSD regulations at 40 C.F.R. §
52.21 governing permit issuance apply. EPA may in turn delegate its authority to the state to
issue federal PSD permits. See 40 C.F.R. § 52.2l(u). Whether EPA or a delegated state actually
issues the permit, the appeal of a federal PSD permit is governed by the regulations at 40 C.F.R.
Part 124.
Because Michigan's state implementation plan lacks an approved PSD program, the applicable
requirements governing the issuance and appeal of PSD permits in Michigan are the federal PSD
regulations at 40 C.F.R. § 52.21 and Part 124. See 40 C.F.R. § 52.1180. On September 10,
1979, pursuant to 40 C.F.R. § 52.2 l(u), EPA Region V delegated its authority to implement and
enforce the federal PSD program to the State of Michigan. See 45 Fed. Reg. 8348 (1980).
Although EPA Region V delegated administration of the PSD program in Michigan to the State,
PSD permits issued by MDEQ follow the requirements in 40 C.F,R. § 52.21 and Part 124.
Having delegated its authority to administer the federal PSD program to Michigan, the
relationship between EPA Region V and the MDEQ is an arms-length one. EPA Region V
exercises careful oversight of the PSD program by reviewing permit applications and
commenting where appropriate. Where the state issues a deficient permit, EPA Region V may
appeal the permit to the Environmental Appeals Board.
The proposed Select Steel facility is a major stationary source with the "potential to emit" 100
tons per year or more of a regulated pollutant. In addition, the facility is proposed to exceed the
"significant emission rate" as defined in the federal regulations for NOx, CO, PM, and lead. See
40 C.F.R. § 52.21(b)(23). Since Genesee County is designated attainment for these pollutants,
the Select Steel facility is subject to PSD review for these pollutants. 40 C.F.R. § 52.21(i). The
proposed Select Steel facility also has the potential to emit 38 tons per year of VOCs and sulfur
dioxide. These levels of emissions are not considered "significant" under the PSD regulations.
40 C.F.R. § 52.21 (b)(23). As a result, the facility need not undergo PSD review for these
pollutants.
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Select Steel submitted a BACT analysis as part of its December 30, 1997 PSD permit
application. The analysis included a "top down" approach consisting of five steps to evaluate
and determine BACT:
1. Identify all control technologies;
2. Eliminate technically infeasible options;
3. Rank remaining control technologies;
4. Evaluate most effective controls and document results; and
5. Select BACT.
2. Specific Criteria Pollutants of Concern
Air dispersion modeling was conducted by the Select Steel facility to support a December 1997
PSD permit application filed with MDEQ. Some changes were made to the permit at the request
of MDEQ, and subsequent modeling was conducted by MDEQ. The air quality model and the
methodology used followed the recommendations in EPA's Guideline on Air Quality Models
(Revised), codified at 40 C.F.R. Part 51, Appendix W. The modeling conducted for the criteria
pollutants (i.e., NOx, SO2, PM10, and CO) showed predicted impacts well below the NAAQS.
The largest point of particulate air releases at the plant will occur at the electric arc furnace air
pollution control equipment, described as the electric arc furnace or "melt shop" baghouse. Most
fugitive emissions occurring within this area are captured and ducted to the baghouse for
treatment. Other sources of criteria pollutants in the facility include: the lime silo; the baghouse
dust silo; the boiler and the reheat furnace; nearby sources including the ladle dryer, preheaters,
and dump station; tundish dump area, and material handling operation baghouses; and fugitive
emissions from roads and the slagging operations. The location of the baghouse in at the
northeast comer of melt shop. Carbon monoxide and VOC emissions will occur primarily at the
output of the direct evacuation system canopy exhaust.
a. Volatile Organic Compounds
i. General Information
Volatile organic compounds are common reactive hydrocarbons which, together with nitrogen
oxides, form ozone. The formation of ozone is a complex function of emissions and
meteorological patterns and is the result of two coupled processes: (1) a physical process
involving the dispersion and transport of the precursors (i.e.. VOCs and NOJ; and (2) the
photochemical reaction itself. Both processes are strongly influenced by meteorological factors
such as dispersion, solar radiation, temperature, and humidity. At ground-level, ozone is the
prime ingredient of smog.
Short-term (1-3 hours) and prolonged (6-8 hours) exposures to ambient ozone concentrations
have been linked to a number of health effects of concern. For example, increased hospital
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admissions and emergency room visits for respiratory causes have been associated with ambient
ozone exposures.
Exposures to ozone can make people more susceptible to respiratory infection, result in lung
inflammation and aggravate preexisting respiratory diseases such as asthma. Other health effects
attributed to short-term and prolonged exposures to ozone, generally while individuals are
engaged in moderate or heavy exertion, include significant decreases in lung function and
increased respiratory symptoms such as chest pain and cough. Children active outdoors during
the summer when ozone levels are at their highest are most at risk of experiencing such effects.
Other at-risk groups include outdoor workers, individuals with preexisting respiratory diseases
such as asthma and chronic obstructive lung disease, and individuals who are unusually
responsive to ozone. In addition, long-term exposures to ozone present the possibility of
irreversible changes in the lungs which could lead to premature aging of the lungs and/or chronic
respiratory illnesses. See U.S. EPA, National Air Pollutant Emission Trends, 1900-1996,
EPA-454/R-97-011 (1997) ("Trends Report").
EPA promulgated a new NAAQS for ozone on July 18, 1997 (62 Fed. Reg. 38856). The new
ozone standard is set at 0.08 parts per million and is calculated over an 8-hour averaging period.
It replaces the old ozone standard of 0.125 parts per million based on a 1-hour averaging period.
Genesee County was initially designated as a nonattainment area for the old 1-hour ozone
standard. 43 Fed. Reg. 8962 (March 3, 1978); 45 Fed. Reg. 37188 (June 2, 1980). Genesee
County demonstrated compliance with the old 1-hour ozone standard based upon three years of
air quality data. 63 Fed. Reg. 31014 (June 5,1998). In practical terms, this means that the old
classification of "nonattainment" has been superseded by a determination that Genesee County
was meeting the old ozone standard.
On July 18,1997, EPA established a new standard, effective on September 16,1997, based on an
8-hour average. 62 Fed. Reg. 38856 (July 18,1997). EPA examined recent air monitoring data
(from 1995-97) from Genesee County in the context of investigating this complaint and has
determined that Genesee County is also currently meeting the new 8-hour ozone standard
(although official designations will not be made until the year 2000 and will be based on
monitoring data from 1997,1998, and 1999).
ii. Select Steel Permit Conditions for VOCs
The proposed Select Steel facility's potential to emit VOC's is not considered "significant" under
the PSD regulations. However, the proposed facility is also subject to MDEQ rules 702 and 230
which requires the installation of B ACT for VOCs.
In response to MDEQ concerns set forth in the deficiency letter of February 5,1998, Select Steel
reviewed additional information in EPA's Best Available Control Technology/Lowest
Achievable Emissions Rate (BACT/LAER) Clearinghouse ("the Clearinghouse") and found an
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emission factor lower than initially proposed in the permit application. As a result of this
finding, the VOC emission estimate was lowered to 32 ton/yr from the electric arc furnace.
Additional controls to reduce carbon monoxide emissions will also serve to reduce VOC
emissions. MDEQ approved the BACT determination in permit condition 19. EPA Region V
did not object to the BACT determination.
The permit issued by MDEQ gives Select Steel one year from plant start-up to implement a
continuous emissions monitoring system ("CEMS") for VOCs. The regulations give the
permitting authority discretion in implementation of post construction monitoring. 40 C.F.R. §
52.21(m)(2). Pre-application monitoring of VOCs is not mandatory because Select Steel's
potential to emit is less than the significance level, but MDEQ nonetheless retains authority
under the federal PSD program to require post-construction monitoring of VOCs. 40 C.F.R. §
52.21(m)(l)(i)(a), (m)(2). Such monitoring can be required if the permitting authority
determines it necessary to track the effect VOC emissions may have or are having on air quality.
40 C.F.R. §52.21 (m)(2).
b. Lead
i. General Information
Lead accumulates in the blood, bones, and soft tissues and can also adversely affect the kidneys.
liver, nervous system, and other organs. Excessive exposure to lead may cause neurological
impairments such as seizures, mental retardation, and/or behavioral disorders. Even at relatively
low doses lead exposure is associated with changes in fundamental enzymatic, energy transfer,
and homeostatic mechanisms in the body, and fetuses and children may suffer from central
nervous system damage. Recent studies show that lead may be a factor in high blood pressure
and subsequent heart disease and also indicate that neurobehavioral changes may result from lead
exposure during a child's first years of life. See Trends Report.
In its 1978 final decision of the lead NAAQS, EPA estimated a maximum safe blood lead level
and stated, "... the Agency should not attempt to place the standard at a level estimated to be at
the threshold for adverse health effects but should set the standard at a lower level in order to
provide a margin of safety. EPA believes that the extent of the margin of safety represents a
judgment in which the Agency considers the severity of reported health effects, the probability
that such effects may occur, and uncertainties as to the full biological significance of exposure to
lead." 43 Fed. Reg. 46247 (Oct. 5,1978).
Since the lead NAAQS was set in 1978. ambient air concentrations of lead have declined by 97
percent, which tracks well with the decline of 98 percent in overall emissions since 1975. See
Trends Report. Most decreases in emissions were the result of the phase-out of leaded gasoline.
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ii. Select Steel Permit Conditions for Lead
The significance threshold for lead emissions under PSD is 0.6 tons per year ("tpy"). The
proposed Select Steel facility's controlled maximum lead emissions based on continuous
operations would be 0.66 tpy, and would thus be significant for purposes of PSD. Select Steel
concluded that 2.8% of the paniculate emissions from the electric arc would be lead. MDEQ
chose to ensure Select Steel's compliance with the lead emissions limit by requiring the company
to install a baghouse for the melt-shop that MDEQ determined satisfies BACT. The permit also
mandates monitoring of baghouse operating parameters to ensure proper functioning,
performance of a stack test to verify that lead emissions do not exceed the permit limit, visible
emissions monitoring, and several maintenance and contingency measures. The lead BACT
emission limit of 0.15 pounds per hour was approved by MDEQ in permit condition 18.
iii. Other Local Assessments of Lead in the Environment
In its review, MDEQ conducted an analysis of the impact of lead emissions from the proposed
facility in addition to the NAAQS determination. This analysis assessed the impact on children
who might be exposed to soil or household dust whose concentrations of lead would increase as a
result of atmospheric emissions. MDEQ conducted this analysis based on issues raised during
the permit public comment period and at the public hearing, MDEQ Response to PSD Appeal at
2, and published the results in its ELL Study, dated May 15,1998.
The MDEQ analysis used a model of exposure to lead from several pathways (inhalation as well
as ingestion of soil, house dust and water) to predict what fraction of a hypothetical group of
children would have elevated blood lead levels under both baseline (existing) conditions and
with the increase of emissions resulting from the operations of the proposed facility. EPA
reviewed the MDEQ analysis of the predicted baseline incidence of elevated blood lead levels,
and the incremental increase predicted to result from the new facility.
EPA, in addition to reviewing the assumptions used in the MDEQ lead modeling, also reviewed
other available data on the incidence and likelihood of elevated blood lead levels in Genesee
County, particularly in the vicinity of the site of the proposed facility. EPA conducted this
additional review to respond to Complainant's concerns that the existing incidence of elevated
blood lead levels in children in the vicinity of the proposed facility were already high. See EAB
Petition at 1.
iv. Background on Lead Exposures and Levels of Concern
Human exposure to lead now occurs mainly through ingestion of lead in household dust, water,
food, and soil, as well as inhalation. Currently, the most likely pathways of lead exposure in
young children are ingestion of interior house dust. A significant immediate source of lead in
soil and dust is from deteriorating paint used before 1978, especially if unprotected renovation or
remodeling activities have been conducted. Lead in exterior soils may migrate indoors on
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residents' clothing and via winds. Other major historical sources of lead in soils include
deteriorating exterior paint and rainwater runoff from structures, as well as atmospheric
deposition from industry or historical use of leaded gasoline.
The Centers for Disease Control and Prevention (CDC) and EPA have identified a blood lead
concentration of 10 //g/dL as a level of concern for sensitive populations (in particular young
children) and have established health policy goals to limit the risk that young children would
have blood lead levels above this value. According to the most recent CDC estimates, 890,000
U.S. children age 1-5 (or approximately 4.4% overall) have elevated blood lead levels, while
more than one-fifth of African-American children living in housing built before 1946 have
elevated blood lead levels.
v. Impacts from Proposed Facility - MDEQ's Lead
Dispersion/Deposition Modeling
Using estimates of the modeled atmospheric concentrations of lead, the ELL Study assessed the
likely impact of deposition of lead to nearby soil. MDEQ estimated background levels of lead in
air and soils and combined those figures with three different estimates of the amount of lead
already present in house dust (high, medium, and low). MDEQ then analyzed the differences
between children's environmental lead exposure under these three scenarios using the Integrated
Exposure Uptake Biokinetic Model for Lead in Children ("IEUBK"). In each scenario, MDEQ
compared current estimated background blood lead levels (scenario alternative "a") to estimated
blood lead levels after adding in Select Steel's projected emissions (scenario alternative "b").
MDEQ's findings are presented in Table 4 of the BLL Study.
\i. IEUBK Model
As previously mentioned, the MDEQ BLL Study attempts to predict blood-lead concentrations
(blood lead levels) for children exposed to lead in their environment. The model allows the user
to input relevant absorption parameters (e.g., the fraction of lead absorbed from water), as well as
rates for intake and exposure. Using these inputs, the IEUBK then rapidly calculates and
recalculates a complex set of equations to estimate the potential concentration of lead in the
blood for a hypothetical child or population of children (six months to seven years).
The IEUBK estimates exposure using age-weighted parameters for intake of food, water, soil,
and dust. The model simulates continual growth under constant exposure levels (on a
year-to-year basis). In addition, the model also simulates lead uptake, distribution within the
body, and elimination from the body.
The IEUBK is intended to:
Estimate a typical child's long-term exposure to lead in and around his/her residence
based on inputs concerning the presence of lead in various environmental media;
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Provide an accurate estimate of the geometric average blood lead concentration for a
typical child aged six months to seven years;
Provide a basis for estimating the risk of elevated blood lead concentration for a
hypothetical child;
Predict likely changes in the risk of elevated blood lead concentration from exposure to
soil, dust, water, or air following activities which might increase or decrease such
exposure.
A site-specific risk assessment requires information on soil and dust lead concentrations for the
particular site in question. Variables affecting any consideration of lead exposure from soil and
dust include: soil to indoor dust transfer; ingestion parameters for soil and dust (i.e., how much
soil or dust a typical child may ingest or inhale over a set period of time); and the amount of lead
that can be absorbed from the soil. The model is quite sensitive to these parameters-that is,
changing one variable can significantly affect the results. The IEUBK is designed to facilitate
calculating the risk of elevated blood lead levels, and is helpful in demonstrating how results
may change under different assumptions of inputs.
vii. MDEQ Inputs to the IEUBK Model
In its analysis, MDEQ used the point of maximum off-site atmospheric quarterly average
concentration estimated to occur from lead releases from Select Steel. This maximum
concentration point was located within about a hundred meters south and west from the facility
fenceline, generally in an area listed on as U.S. Geological Survey ("USGS") map as being
occupied by waste ponds. This level was used to estimate the dry deposition to soil, and in
subsequent modeling of the potential effects on a population of children which were assessed as
if they were exposed to soils containing the deposited lead at the maximum level.
The deposition estimate involved multiplying the quarterly maximum ambient lead
concentration, determined by dispersion modeling, by a dry deposition velocity. The deposition
velocity assumed was 5 centimeters per second. Although the preferable approach for
calculating deposition flux values is through the use of the Industrial Source Complex ("ISC")
model, the velocity assumed in the MDEQ seems reasonable and is comparable to a settling
velocity for lead calculated using equation 1-55 in Volume II of the User's Guide for the
Industrial Source Complex ("ISC2") Dispersion Models (a velocity of 6.8 cm/s can be calculated
using the conservative assumption that all the particles were 10 microns in diameter). Wet
deposition was not considered in MDEQ's assessment apparently due to the lack of precipitation
data. Wet deposition can account for a significant portion of the total deposition with impacts
often occurring much closer to the facility than the dry deposition impacts. The modeling of soil
and air impacts methodology detailed in the MDEQ report is reasonable as an estimation of dry
deposition of lead.
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The BLL Study estimated the deposition rate at the point of maximum concentration, and
assumed a constant deposition at that rate over a 30 year period. After mixing with the top 1 cm
of soil, this would increase the estimated soil lead concentration by about 14 parts per million
("ppm"). At further distances and directions from the facility emission source, the predicted
concentration and deposition would decrease, so the estimate of deposition at inhabited areas
may be somewhat less.
viii. Results of the MDEQIEUBK Model
The BLL Study found that the blood lead impacts from the facility would be small. The
maximum air lead concentrations from the facility were estimated to result in changes in
geometric mean (typical) blood lead levels of about 0.1 ,ug/dL. EPA's review identifies some
refinements that would be appropriate in similar model applications in the future. However. EPA
concurs that the predicted impacts on blood lead levels would be small.
3. Overview of Air Toxics
The CAA and state programs provide protection against the effects of toxic air pollutants. Title
III of the CAA identifies 189 hazardous air pollutants ("HAPs") and establishes a regulatory
program to control HAP emissions from many industrial sources. The federal program also
controls air toxics from mobile sources and from area sources in urban areas. In addition,
individual states, including Michigan, have developed and implemented air toxics legislation and
regulatory programs.
EPA promulgates regulations for HAPs under section 112 of the CAA. 42 U.S.C. § 7412. This
federal air toxics program requires maximum achievable control technology ("MACT") in its
first phase and an assessment and control of residual risk remaining after the application of
MACT. Those provisions, however, are not applicable to the proposed Select Steel facility. For
section 112, the source category (electric arc furnaces) that includes steel recycling mini-mills
was delisted because "there are no existing facilities which qualify as a major source,'"9 61 Fed.
Reg. 28,197 (1996), and, as a result, those sources will not be regulated under section 112.
Section 129 only concerns solid waste incineration units, see 42 U.S.C. § 7429(a), and would not
apply to Select Steel.
Michigan's Rule 230 requires permit applicants to install best available control technology for
certain sources of air toxics ("T-BACT') and to perform a modeling analysis and compare those
results with the initial risk screening levels. Rule 230 also allows MDEQ to establish a lower
maximum emission limit if they determine T-BACT does not protect the public or the
environment adequately.
9 A major source is a stationary source "that emits or has the potential to emit considering
controls, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per
year or more of any combination of hazardous air pollutants." 42 U.S.C. § 7412(a)(l).
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Potential emissions of toxic air contaminants were estimated by Select Steel using the average
emission factors from similar facilities previously issued permits by the MDEQ and the Air and
Waste Management Association compilation of baghouse dust compositions. Toxic air
contaminants associated with mini-mills include metals and toxic components of VOCs. The
toxic metals of concern were identified in the permit application to be cadmium, chromium,
manganese, mercury, and nickel.
Modeling done by Select Steel's consultant indicated that the ground level impacts of air toxics
were below the MDEQ screening levels for all air toxics of concern except manganese. As a
result of the MDEQ review and public comment, permit changes were made to further reduce the
emissions and impact of two of air toxics of concern to Complainants, namely manganese and
mercury.
a. Select Steel Permit Conditions for Manganese
After the Select Steel permit application was submitted, additional stack test data was submitted
to MDEQ in another permit application for Republic Steel (also a proposed steel mini mill)
which indicated manganese emissions may be lower than previously predicted. Based on this
information, a revised lower emission rate of 0.05 Ib/hr was established for Select Steel. This
emission limit along with closing the roof monitor and additional hooding resulted in predicted
ambient air impacts below the MDEQ screening levels. The revised emission limit of 0.05
pounds per hour was approved by MDEQ as T-BACT in permit condition 25.
b. Select Steel Permit Conditions for Mercury
*
After an MDEQ review of other sources of data including the Ohio EPA's stack testing database,
MDEQ determined that the prospective mercury emission levels outlined in the permit
application were not representative of T-BACT. In a letter dated April 24, 1998, Select Steel
agreed to reduce the mercury emission limits by a factor of 10. The draft permit was changed
and the emission rate for mercury was lowered from 0.05 pound per hour to 0.005 pound per
hour. The exhaust gas concentrations for mercury were also reduced by a factor of 10 to 3.84
micrograms/dscf, as specified in permit condition 25. In addition, permit condition 51 was added
to require a further assessment of the impact of mercury emissions from the facility on the Mott
Lake watershed, unless source testing reveals that the mercury emissions are less than 0.0004
Ibs/hr.
c. Other Air toxics
To assess air toxics emissions from the proposed Select Steel facility, EPA assessed both the
facility's air toxics emissions, as well as the existing level of air toxics in the surrounding area.
Data on other sources of air toxics comes from EPA's Toxics Release Inventory ("TRI").
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The facilities reporting to the 1996 Toxics Release Inventory (U.S. EPA 1998) are currently
those facilities which are manufacturing facilities in Standard Industrial Classification ("SIC")
codes 20-39 and employ at least 10 people. They must report annual releases and transfers of
chemicals which are on the TRI list and which are manufactured, processed or otherwise used
above threshold amounts. TRI reports include separate information on releases to each
environmental medium (e.g., air, water, land) and offsite transfers for treatment or disposal, as
well as chemicals recycled, used in energy recovery, and present in waste streams. The list of
chemicals subject to reporting in 1996 (the most recent year for which data are available)
included approximately 650 chemicals and chemical classes. The TRI database contains a wide
range of manufacturing facility types, including chemical, rubber, plastics, and petroleum
refineries, food processing (e.g., sugar refineries), electronics manufacturing, and other
miscellaneous facilities, such as soft drink bottling facilities. Many sources of air toxics,
including small sources (e.g., dry cleaners or gasoline service stations) and non-manufacturing
sources (e.g., waste treatment facilities and energy generation plants) were not required to report
even if they met the chemical quantity thresholds.
*
Should the Select Steel facility operate, it is expected to report to TRI. Sixteen TRI facilities are
located withing 12 miles from the approximate center of the proposed Select Steel facility. Two
had zero air releases reported to TRI in 1996; therefore they were not included in the modeling
analysis.
4. Dioxin Monitoring
a. General Information
*
Chlorinated dibenzo-p-dioxins and related compounds (commonly known simply as dioxins) are
contaminants present in a variety of environmental media. Human studies demonstrate that
exposure to dioxin and related compounds is associated with subtle biochemical and biological
changes whose clinical significance is as yet unknown and with chloracne, a serious skin
condition associated with these and similar organic chemicals. Laboratory studies suggest the
probability that exposure to dioxin-like compounds may be associated with other serious health
effects including cancer.
EPA promulgates regulations for dioxin emissions under sections 112 and 129 of the Clean Air
Act. 42 U.S.C. §§ 7412, 7429. Those provisions, however, are not applicable to the proposed
Select Steel facility. For section 112, the source category that includes steel recycling mini-mills
was delisted because "there are no existing facilities which qualify as a major source," 61 Fed.
Reg. 28,197 (1996), and, as a result, those sources are not expected to be regulated at this time
under section 112. Section 129 only concerns solid waste incineration units, see 42 U.S.C. §
7429(a), and would not apply to Select Steel.
hi addition, EPA has no emissions data for American mini-mills to either support or contradict
MDEQ's belief. A recent inventory of dioxin sources indicates that information has not yet been
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developed to determine whether dioxin is a pollutant of concern from facilities like Select Steel.
Exposure Analysis and Risk Characterization Group, U.S. EPA, The Inventory of Sources of
Dioxin in the United States, all-14 (April 1998).
To the extent that any regulations may be applicable to dioxin in other circumstances, no
continuous emission monitoring system has been proven for use with dioxin by EPA. See 40
C.F.R. Parts 60, 61, 63, and 64.
b. Select Steel Permit Conditions for Dioxin
The permit contains no monitoring or any other requirement for dioxin.
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B. Allegation Regarding Discrimination in Public Participation
According to EPA's regulations for issuance of PSD permits, 40 C.F.R. Part 124, Subpart A,
MDEQ is required to provide public notice that a draft permit has been prepared, 40 C.F.R. §
124.10(a)(l)(ii), with at least 30 days for public comment. 40 C.F.R. § 124.10(b). In addition,
MDEQ must hold a public hearing whenever they find a significant degree of public interest
based on requests for a hearing. 40 C.F.R. § 124.12(a). Public notice of the hearing must be
given at least 30 days prior to the hearing. 40 C.F.R. § 124.10(b)(2). That notice must be
provided by (1) mailing a copy of the notice to certain interested parties, (2) publishing in a
weekly or daily newspaper within the affected area, and (3) any other method reasonably
calculated to give actual notice. 40 C.F.R. § 124.10(c).
In this case, MDEQ published notices about the draft permit in The Flint Journal on March 26,
1998, and March 27,1998, in The Suburban News on March 29, 1998, and in The Genesee
County Herald on April 1,1998. In the same notices, MDEQ indicated that a public hearing
would be held on April 28, 1998, beginning at 7:00 p.m. at the Mount Morris High School. Mt.
Morris High School is located approximately two miles from the proposed site. MDEQ also
mailed the notice to Fr. Schmitter, Sr. Chiaverini, and several other individuals in the community
who had expressed interest in the permit.
The permit applicant, Select Steel, and local government officials also held two informational
meetings prior to MDEQ's public hearing. The first was held February 12,1998, at Kearsley
High School, 4302 Underbill Drive, Flint, Michigan, and the second was held February 19, 1998,
at Mount Morris High School. These meetings were not required by any state or federal statute
or regulation, and were held without the participation of MDEQ.
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VI. ANALYSIS AND RECOMMENDED DETERMINATION
A. Allegation Regarding Air Quality Impacts
The environmental laws that EPA and the states administer generally do not prohibit pollution
outright; rather, they treat some level of pollution as "acceptable" when pollution sources are
regulated under individual, facility-specific permits, recognizing society's demand for such
things as power plants, waste treatment systems, and manufacturing facilities. In effect,
Congress—and, by extension, society—has made a judgment that some level of pollution and
possible associated risk should be tolerated for the good of all, in order for Americans to enjoy
the benefits of a modern society—to have electricity, heat in our homes, and the products we use
to clean our dishes or manufacture our wares. Similarly, society recognizes that we need
facilities to treat and dispose of wastes from our homes and businesses (such as landfills to
dispose of our trash and treatment works to treat our sewage), despite the fact that these
operations also result in some pollution releases. The expectation and belief of the regulators is
that, assuming that facilities comply with their permit limits and terms, the allowed pollution
levels are acceptable and low enough to be protective of most Americans.
EPA and the states have promulgated a wide series of regulations to effectuate these protections.
Some of these regulations are based on assessment of public health risks associated with certain
levels of pollution in the ambient environment. The NAAQS established under the Clean Air
Act (CAA) are an example of this kind of health-based ambient standard setting. Air quality that
adheres to such standards is presumptively protective of public health. Other standards are
"technology-based," requiring installation of pollution control equipment which has been
determined to be appropriate in view of pollution reduction goals. In the case of hazardous air
pollutants under the CAA, EPA sets technology-based standards for industrial sources of toxic
air pollution. The maximum achievable control technology standards under the Clean Air Act
are examples of this kind of technology-based standard setting. After the application of
technology-based standards, an assessment of the remaining or residual risk is undertaken and
additional controls implemented where needed.10
10 Clean Air Act § 112(f)(2)(A)(l) states "... If standards promulgated pursuant to
subsection (d) and applicable to a category or subcategory of sources emitting a pollutant (or
pollutants) classified as a known, probable or possible human carcinogen do not reduce lifetime
excess cancer risks to the individual most exposed to emissions from a source in the category or
subcategory to less than one in one million, the Administrator shall promulgate standards under
this subsection for such category." 42U.S.C. § 7412(f)(2)(A)(l).
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Title VI and EPA's implementing regulations" set out a requirement independent of the
environmental statutes that all recipients of EPA financial assistance ensure that they implement
their environmental programs in a manner that does not have a discriminatory effect based on
race, color, or national origin. If recipients of EPA funding are found to have implemented their
EPA-delegated or authorized federal environmental programs (e.g., permitting programs) in a
manner which distributes the otherwise acceptable residual pollution or other effects in ways that
result in a harmful concentration of those effects in racial or ethnic communities,12 then a finding
of an adverse disparate impact on those communities within the meaning of Title VI may,
depending on the circumstances, be appropriate.
Importantly, to be actionable under Title VI, an impact must be both "adverse" and "disparate."
The determination of whether the distribution of effects from regulated sources to racial or ethnic
communities is "adverse" within the meaning of Title VI will necessarily turn on the facts and
circumstances of each case and the nature of the environmental regulation designed to afford
protection. As the United States Supreme Court stated in the case of Alexander v. Choate, 469
U.S. 287 (1985), the inquiry for federal agencies under Title VI is to identify the sort of disparate
impacts upon racial or ethnic groups which constitute "sufficiently significant social problems,
and [are] readily enough remediable, to warrant altering the practices of the federal grantees that
had produced those impacts." Id. at 293-94 (emphasis added).
The complaint in this case raises air quality concerns regarding several NAAQS-covered
pollutants, as well as several other pollutants. With respect to the NAAQS-covered pollutants,
and as explained more fully below, EPA believes that where, as here, an air quality concern is
raised regarding a pollutant regulated pursuant to an ambient, health-based standard, and where
the area in question is in compliance with, and will continue after the operation of the challenged
facility to comply with, that standard, the air quality in the surrounding community is
presumptively protective and emissions of that pollutant should not be viewed as "adverse"
within the meaning of Title VI. By establishing an ambient, public health threshold, standards
like the NAAQS contemplate multiple source contributions and establish a protective limit on
cumulative emissions that should ordinarily prevent an adverse air quality impact.
11 Title VI of the Civil Rights Act of 1964, as amended, provides that "no person in the
United States shall, on the ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any program or
activity receiving Federal assistance." 42 U.S.C. section 2000d et seq. EPA's Title VI
implementing regulations provide that recipients of EPA financial assistance "shall not use
criteria or methods of administering its program which have the effect of subjecting individuals
to discrimination" because of their race, color, or national origin. 40 C.F.R. § 7.35(b)
12 For example, scenarios involving the combined impacts of multiple pollutants, multiple
pathways, and multiple plants.
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With respect to the pollutants of concern in the complaint which are not covered by the NAAQS,
Title VI calls for an examination of whether those pollutants have become so concentrated in a
racial or ethnic community that the addition of a new source will pose a harm to that community.
Because EPA has determined that there is no "adverse" impact for anyone living in the vicinity
of the facility, it is unnecessary to reach the question of whether the impacts are "disparate."
1. Volatile Organic Substances
a. VOCs as Ozone Precursor
Based on the information that was made available, EPA technical experts determined that
MDEQ's regulatory modeling was generally conducted in accordance with EPA's Guideline on
Air Quality Models. The proposed maximum allowable emissions for VOCs from the proposed
Select Steel facility are 38.5 tpy. Sources with potential VOC emissions of less than 40 tons per
year are not considered a significant source under federal PSD regulations. 40 C.F.R. §
52.21(b)(23)(i).
Genesee County has been effectively determined to meet the NAAQS for ozone (the pollutant of
concern from VOC emissions) for both the old 1 -hour standard and the new 8-hour standard. See
63 Fed. Reg. 31014 (June 5, 1998). Select Steel's maximum modeled impacts from the criteria
pollutants of concern to the Complainants are below the NAAQS. In particular, for ozone, the
proposed Select Steel facility's emissions are not expected to cause an increase in concentrations
above a level deemed presumptively protective of public health. Accordingly, since the NAAQS
for ozone is a health-based standard, which has been set at a level necessary to protect public
health and allows for an adequate margin of safety for the population within the attainment area,
there would be no affected population that suffers "adverse" impacts within the meaning of Title
VI resulting from the incremental VOC emissions from the proposed Select Steel facility. For
this reason, with regard to VOC emissions as ozone precursors, it is recommended that EPA find
that MDEQ did not violate Title VI or EPA's implementing regulations.
b. VOC Monitoring
In response to the Complainants' allegation that the permit allows VOC emissions to go
unmonitored for the first eighteen months of the mill's operation, the EAB found that this was
"somewhat of a misreading of the permit." EAB Decision at 5. Permit condition 33 allows
Select Steel to operate for one and possibly up to two years before it must begin VOC
monitoring. MDEQ stated that because Select Steel's potential to emit VOCs is not significant,
"VOC emissions monitoring is not required under federal law." MDEQ Response at 7. The
EAB found that statement, while "technically true, is [was] somewhat misleading." EAB
Decision at 5. The EAB stated that "pre-application monitoring of VOCs is not mandatory
because Select Steel's potential to emit is less than the significance level, but MDEQ nonetheless
retains authority under the federal PSD program to require post-construction monitoring of
VOCs. See 40 C.F.R. § 52.21 (m)( 1 )(i)(a), (m)(2). Such monitoring can be required if the'
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permitting authority determines it necessary to track the effect VOC emissions may have or are
having on air quality. 40 C.F.R. § 52.21 (m)(2)." Id. at 6.
MDEQ's permit condition regarding VOC monitoring allows Select Steel one year from plant
start-up to implement a CEMS for VOCs.. However, Select Steel may choose to install an
alternative monitoring system, called "parametric monitoring," instead of the CEMS. If Select
Steel does so, MDEQ must first review, test, and accept the system. If MDEQ rejects the
parametric system, the permit states that Select Steel must install CEMS within two years of
plant start-up. The EAB noted that "MDEQ does not explain why Select Steel is given up to two
years to bring VOC emissions monitoring on-line. However, the regulations give the permitting
authority discretion in implementation. 40 C.F.R. § 52.21(m)(2)." EAB Decision at 6.
MDEQ is not required to prescribe immediate VOC monitoring because EPA's regulations allow
the permitting authority to impose post-construction monitoring as it "determines is necessary."
40 C.F.R. § 52.21(m)(2). Moreover, as discussed elsewhere, there would be no affected
population that suffers "adverse" impacts within the meaning of Title VI resulting from the
incremental VOC emissions from the proposed Select Steel facility. For these reasons, it is
recommended that EPA find that, with regard to VOC monitoring, MDEQ did not violate Title
VI or EPA's implementing regulations.
2. Lead
Genesee County has been determined to meet the NAAQS for lead. Based on the available
information, EPA technical experts determined that MDEQ's lead modeling was generally
conducted in accordance with EPA's Guideline on Air Quality Models. Overall, the maximum
predicted impacts from the Select Steel facility are generally very close in to the facility; either at
or near the fenceline.
The significance threshold for lead emissions under PSD is 0.6 tpy. The proposed Select Steel
facility' maximum lead emissions based on continuous operations would be 0.66 tpy, and would
thus be significant for purposes of PSD. MDEQ chose to ensure Select Steel's compliance with
the permit's lead emissions limit of 0.15 pounds per hour by requiring the company to install a
baghouse that MDEQ determined satisfied BACT.
Select Steel's maximum modeled impacts from lead are below the NAAQS. Accordingly, the
proposed Select Steel facility emissions are not expected to cause an increase in lead
concentrations above a level deemed presumptively protective of public health. Since the
NAAQS for lead is a health-based standard which has been set at a level necessary to protect
public health and allows for an adequate margin of safety for the population within the
attainment area, there would no affected population that suffers "adverse" impacts within the
meaning of Title VI resulting from the incremental lead emissions from the proposed Select Steel
facility. As discussed more fully below, EPA's analysis of data on blood lead levels in the
vicinity of the facility does not suggest a different conclusion. For these reasons, it is
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recommended that EPA find that, with regard to lead emissions, MDEQ did not violate Title VI
or EPA's implementing regulations.
a. EPA's Review of the MDEQ ELL Study
In response to public concerns about lead in the local environment, MDEQ appropriately
undertook an examination of children's blood lead levels in the area. EPA found that the BLL
Study was a conscientious attempt to address the impact of air emissions from the facility on
children's blood lead levels and that MDEQ's use of the IEUBK model in the report was
generally applied in a reasonable manner. EPA determined that MDEQ did not explicitly
consider one particular pathway of exposure, namely the additional lead in house dust directly
resulting from increased lead concentrations in the atmosphere (i.e., from emissions by proposed
facility), but this fact did not affect EPA's conclusions regarding the integrity of the study.
EPA reviewed the MDEQ IEUBK report's conclusions, including the assertion that "the
modeling of blood lead levels under these scenarios demonstrated little or no differences due to
the proposed facility's maximum potential impact, for each scenario." BLL Study at 9. EPA
concurs that any impacts would be small and found no reason to conclude that these results were
not valid. Based on the available information concerning the releases, the additional deposits of
lead in soil and dust from Select Steel are likely to have a de minimis incremental effect on local
mean blood lead levels and the incidence of elevated levels.
b. EPA's Review of Other Available Data on the Incidence and Likelihood of
Elevated Blood Lead Levels in Genesee County
As previously mentioned, EPA also reviewed other available data on the incidence and
likelihood of elevated blood lead levels in Genesee County, particularly in the vicinity of the site
of the proposed facility, in view of complainant's concerns that the existing incidence of elevated
blood lead levels in children in the vicinity of the proposed facility were already high. EAB
Petition at 1.
EPA reviewed available county health data for children with measured elevated lead levels. The
overall county average in 1997 was approximately 8%. In zip code 48458, which contains the
site of the proposed facility and the expected maximum ambient lead concentration resulting
from plant emissions, the incidence rate above 10 ,ug/dL in 1997 was about 3%, which is similar
to the CDC estimate for the national average (4.4%).
In addition, EPA reviewed more specific geographic information than the zip code area totals
because zip code areas are relatively large and may contain areas of high and low incidence
which together combine in an average. For example, in 1995, when the Genesee County Health
Department offered free testing to residents in the neighborhood of the Genesee Power Station
facility at the Carpenter Road School, twenty-nine children under age 15 were tested, and none
were found to have elevated levels of lead.
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Further, EPA assessed another indicator of elevated lead levels: age of housing. The HUD
national survey of lead in housing found a correlation among lead in interior house dust, the
presence of lead paint, and age of housing (e.g., built prior to 1950) (CDC, Screening Young
Children for Lead Poisoning, 1997). While the presence of older housing units has been
identified as an indicator of elevated blood lead levels, there is no explicit guidance as to the
proportions which would be of concern. Interpreting these data can be informed by recent
guidance on what levels might warrant a significant public health testing effort.
The Centers for Disease Control and Prevention ("CDC") and the American Academy of
Pediatrics guidance on conducting testing of children in geographic areas suggests that,
depending on the presence of several factors, either universal or targeted screening may be
recommended. CDC suggests conducting universal screening if the prevalence of housing units
built prior to 1950 in an area is above the national average (27%), or if the prevalence of
measured blood lead levels above 10 Mg/dL in 1- and 2-year olds is greater than 12%, then all
children in the area should be routinely screened. If these criteria are not met, children should be
screened on the basis of information collected about their specific situation (e.g., for Medicaid
recipients, children living in older (pre-1950) housing units, children present during a renovation
of pre-1978 housing unit).
The zip code containing the proposed facility covers a large area, and includes Mt. Morris
township, which contains a larger proportion of older housing than most of the county. On
average, the percentage of pre-1950 housing in zip code 48458 is about 22%, or below the CDC
suggested level which would trigger universal screening of blood lead levels in young children.
Overall, EPA found no clear evidence of a prevalence of pre-existing lead levels of concern in
the area most likely to be affected by lead emissions from Select Steel. EPA also concluded that
lead emissions from the proposed Select Steel facility are unlikely to have significant impacts on
blood lead levels of children living in the vicinity. While EPA believes that airborne lead
emissions from the Select Steel facility are neither actionable under Title VI nor cause for
particular concern, this does not mean that there is not a broader lead concern in Genesee County
that warrants attention separate and apart from Title VI. EPA has noted that blood lead data
available for Genesee County provide a basis for an ongoing lead exposure assessment.
Approximately 8% of children screened for blood lead in Genesee County in 1997 exceeded the
federal blood lead goal of 10 ,ug/dL. The available screening data also indicate a greater risk of
elevated blood lead levels among African-African children. (Four percent of African-American
children screened between July 1995 and June 1998 had blood lead levels greater than 15 //g/dL,
while 1% of white children exceeded this level. Data tabulated by race were not available for all
blood lead levels exceeding 10 /ug/dL.) Under these circumstances, EPA believes that, separate
and apart from this case, further locally focused efforts are warranted to reduce existing
prevalence of elevated blood lead levels.
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Public health efforts to mitigate existing blood lead risks can include:
• continued blood lead screening, outreach, and intervention efforts directed to at-
risk populations;
• generation of additional data on patterns of the occurrence of damaged lead-based
paint and elevated levels of lead in residential soils and dusts;
• focused educational and assistance programs to aid residents and dwelling owners
in reducing existing sources of lead exposure.
EPA supports continued local efforts to assess and reduce potential lead exposures in children,
and is prepared to provide assistance in the planning of intervention efforts and in the
identification of resources to support this work.
3. Air Toxics
In its review of the permit for the proposed Select Steel facility, MDEQ used air models to
estimate atmospheric concentrations and compare them to screening thresholds defined by the
state. Modeled levels of air toxics emissions from the issued permit for the proposed facility did
not exceed state thresholds of concern. These MDEQ assessments were performed on a
chemical-specific basis, and did not attempt to aggregate the impacts of all releases combined.
EPA's approach to analyzing air toxics had some elements in common with MDEQ's NAAQS
review, in that it used air models to evaluate potential concentrations of air emissions from
multiple sources. It also extended this approach to include multiple chemicals, whose potential
impacts were combined on the basis of similar health effects. Chemicals that may cause cancer
were considered separately from those which may only cause other chronic toxic effects, because
combining these different types of effects may significantly increase uncertainties. Acute effects
were not considered in the analysis because neither appropriate emissions data nor toxicity data
were available. For these air toxic releases, no ambient concentration regulatory standards are
generally available, either singly or hi combination. The EPA approach used the modeled
concentration estimates along with residential population information for Census blocks to
estimate exposures, and health based benchmarks to project risks of potential impacts.
a. Technical approach for air toxics evaluation
EPA conducted an analysis of the distribution of airborne toxic emissions from TRI facilities in
the same area as the proposed facility. EPA modeled average concentrations at each inhabited
Census block within six miles of the proposed site as a reasonable assumption of the likely
maximum geographic extent of potential impacts. To assure that the contributions of the
facilities outside the six-mile radius to blocks inside the circle were considered, all facilities in
the analysis included those within an additional six miles (i.e., all those within twelve miles) of
the proposed Select Steel site.
33
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The proposed Select Steel facility's air toxics emissions were obtained from MDEQ documents
listing maximum permitted limits. Modeled chemicals included arsenic, barium, cadmium,
chlorine, chromium, manganese, mercury, nickel oxide, and zinc oxide, as well as lead.
In addition to the proposed facility, a total of 16 facilities were modeled, composed of 15 TRI
facilities plus Genesee Power Station ("GPS") (which was permitted to release lead and a
number of other metals). Of the chemical-specific air toxics emissions listed, methyl pyrrolidone
and benzo(a)pyrene (GPS only) were not modeled due to lack of available toxicity data. The
proposed facility's emissions of vanadium pentoxide and aluminum chloride were also not
modeled due to lack of available EPA toxicity information. If the MDEQ ambient concentration
screening levels were used to rank the potential degree of toxicity of the permitted chemicals, the
ranks for these substances would be the second and third least toxic of the 10 considered, or of
slightly higher concern than zinc. This ranking would also place them nearly five orders of
magnitude (or a factor of 100,000) less toxic than arsenic or cadmium, which were included in
the analysis.
Table X: List of Additional Facilities Modeled
TRI Facility' ID
48423FRNCN300SO
48458NVRSL1167W
48503CMMRC711W1
48503MCDNL609CH
48505LCKHR4701T
48505PPGND3601J
48506BBPNT2201N
48506MDSTT624KE
48550BCFLN902EH
48551GMCTRG3100
48552CPCFLG3248
48553GMCTRG2238
48554GMSRV6060W
48555CFLNT300NO
48556CSPRK1300N
NA
Facility Name
Fernco Inc.
Universal Coating Inc
Oil Chem Inc.
McDonald Dairy
Lockhart Chemical Co
PPG Industries Inc
B&B Paint Co
Mid State Plating Co Inc
GMC -Buick Motor Div
CMC Truck & Bus Group
GM-CPC-Flint Engine Pit
GMC Metal Fabricating Div. Flint
GMC Motor Service Parts Ops.
GMC AC Delco Systems Div Wes
AC Spark Plug GMC
Genesee Power Station
Address
300 S. Dayton St.
1 1 67 W. Frances Rd.
711 W. 12th St.
609 Chavez Dr.
4302 James P. Cole
3601 James P. Cole
2201 N. Dort Hwy.
602 Kelso St.
902 E. Hamilton
G-3100VanSlykeRd.
G-3248 Van Slyke Rd
G-2238 W. Bristol Rd
6060 W. Bristol Rd.
300 N. Chevrolet Ave
1 300 N. Dort Hwy.
5300 Energy Drive
City
Davison
Mount
Morris
Flint
Flint
Flint
Flint
Flint
Flint
Flint
Flint
Flint
Flint
Flint
Flint
Flint
Genesee
Township
34
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EPA's analysis was performed both with and without Select Steel to examine incremental
effects, using an approach that is similar to one developed earlier for Title VI investigations and
that is undergoing scientific peer review by EPA's Science Advisory Board ('SAB").13
Modifications were made to address suggestions from the SAB.
To determine how permitted air toxic emissions are distributed geographically and on the basis
of population subgroups, EPA used 1990 Census data and modeled average air concentrations on
a census block level. The TRJ air release data used was for 1996, the most recent year for which
TRI data is available. The concentrations of chemicals in the various Census blocks were
examined relative to known chemical-specific values such as Unit Risk Factors or Reference
Concentrations ("RfCs"), and for those chemicals where these values have not yet been
established, the OPPT's Risk Screening Environmental Indicators (dated April 28,1998) tables
were used. As a conservative screening method, the carcinogenic risk estimates for all
carcinogens in each block were added together as an indication of possible cumulative effects on
cancer probability.
Because the probability of contracting cancer is not generally assumed to have a threshold level
(i.e., there is some probability, however small, at any level of exposure), the decision regarding a
level necessary to cause an adverse effect is a matter of policy. In the past, EPA has based
regulatory actions at a wide spectrum of levels, generally in the range of 10~6 (one in one million)
to 10"* (one in ten thousand) lifetime cancer risk.14 Estimated lifetime individual risks below 10~6
have rarely been found to be sufficient basis for action, while in most cases, levels above 10"4
have resulted in some form of action, although not necessarily regulation.
Similarly, on the non-cancer side, the 1986 EPA guidelines for dealing with chemical mixtures
discusses the concept of hazard index, where a level below 1 means that untoward effects are
thought unlikely to occur. Because of the use of safety factors in determining the RfCs used to
construct a hazard index, the meaning of a hazard index above 1 cannot be used to predict that
unwanted health effects will occur. There are usually safety factors of from 3 to 1000 times
between calculated RfC levels, which are used as screening thresholds here, and concentrations
found to cause adverse effects in animals or humans. Scientists have not agreed, at this point, on
a scheme for predicting if and when effects will occur based on the hazard index values between
1 and the lowest concentrations found to cause adverse health effects, often considerably higher.
Major uncertainties in this kind of analysis include the specific chemicals' toxicity potencies,
which are not always based on a comparable amount or quality of information, and may include
significant "safety factors" to reflect uncertainties in the degree of potency. Other uncertainties
13 The approach presented for SAB review was called the Enhanced Relative Burden
Analysis.
14 See, e.g., CAA § 112(f)(2)(A); 42 U.S.C. § 7412(f)(2)(A).
35
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include not being able to account for all significant sources, since mobile and area sources of
certain air toxics may be as significant as point sources, especially in urban areas. The point
source TRI emissions information used was based on industry-reported data which can be
derived using a variety of approaches with varying degrees of accuracy, and in the case of two
facilities, the maximum permitted emission levels. In interpreting combined effects of multiple
chemical exposures, hazard ratios based on additive combinations of chemicals whose predicted
effects are on different parts of the human body may significantly overestimate potential impacts.
Adding carcinogenic risk and construction of hazard indexes for multiple chemicals both involve
"adding" various health effect "endpoints" that may result from entirely different biological
mechanisms and therefore may not be strictly additive in a biological sense. In this
methodology, the chemicals are added as a worst case assumption, and if added levels do not
raise concern when compared to benchmarks such as a cancer risk level or a hazard index, an
assumption would be that they would not be of concern if a more detailed methodology were
applied.
b. Results of Air Toxics Analyses
The analysis focuses on whether the permitted Select Steel emissions—either in and of
themselves or in combination with other emissions in the area—result in concentrations that may
adversely impact the health of the residents in the surrounding area. The analysis found that the
locations of the blocks with the maximum predicted impacts from the Select Steel Facility were
very close in to the facility, near the fence line. None of the Census blocks were found to be
significantly adversely impacted solely by projected emissions from the proposed facility. The
Census block with the highest projected potential risk from potential carcinogens was estimated
to have a lifetime risk of just above 10"6 (1 in 1 million) associated with emissions from the
proposed facility. The hazard index for all blocks hi the six-mile circle due to the Select Steel
emissions was well below the screening threshold of 1, the highest block being about 0.03. The
analysis does not support, therefore, the allegation that the proposed Select Steel facility
emissions themselves, as permitted, will be the cause of health effects in the surrounding area. In
addition, the levels from the Select Steel facility are also projected to be fairly low compared to
the levels contributed by the other TRI sources collectively.
The cumulative results for the entire six-mile circle indicate the lifetime carcinogenic risk
estimates for the highest single block is about 6x10~5. While the estimates for several blocks fall
within the 10'5 range, these estimates are thought to be quite conservative for the following
reason. Virtually all the blocks where risk is above the low 10"6 range are dominated by the
release of chromium. The methodology makes two very conservative assumptions regarding
chromium: first, that all releases are assumed to be the more toxic chromium VI valence state, as
opposed to the significantly less toxic chromium III; and second, that the released particles are
small enough to be carried with the wind dispersion and not fall to earth and be substantially
removed through dry or wet deposition. The ratio of chromium VI to total chromium in
emissions is usually much less than 1, with estimates in the 10% range not uncommon. Were
36
0001*3
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this ratio factored into the methodology, none of the blocks would have shown an estimated risk
above the 10"6 range. Even so, the conservatively derived levels are not such that they go above
the 10-4 level.
On the non-cancer side, most of the blocks within the six-mile circle are below the hazard index
of 1, even with all non-carcinogenic chemical effects combined. There are a substantial number
of blocks, however, which have hazard indexes between one and 10, and some—-just under
6%—which have hazard indexes between 10 and 80. In all of the blocks with hazard indices
above 1, glycol ethers15 is the predominant cause. Therefore, uncertainties that might arise from
adding different chemicals together largely do not apply.
There is considerable uncertainty about the meaning of the estimated hazard indices here, for
several reasons. First, as previously discussed, scientists have not yet agreed on how to interpret
hazard index values above 1. Second, the value used for glycol ethers in this screening
methodology was not a formally established RfC, but a value derived from an similar type of
toxicity study which used oral rather than inhalation exposure, introducing some additional
uncertainty. Third, there are usually uncertainty factors applied to any RfC or reference dose
calculation, so values above 1 cannot be easily (or at all) translated into predictions of
probabilities of adverse health effects. At this point, these values can be termed "not necessarily
safe," but neither can there be adverse health effects definitely predicted upon this basis alone.
In any event, the analysis suggests that Select Steel's emissions will contribute minimally, if at
all, to the possibility of adverse health effects.
Overall, the EPA analysis does not support the contention that the combined modeled emissions
in the six mile area near the proposed facility indicate the likelihood of adverse health impacts.
For all of these reasons, with regards to air toxic releases, it is recommended that EPA find no
violation of Title VI or EPA's implementing regulations.
4. Dioxin Monitoring
The information gathered from the investigation concerning the monitoring of dioxin emissions
is consistent with EAB's analysis of the issue.16 No performance specifications for GEMS have
been promulgated by EPA to monitor dioxins. Without a proven monitor, MDEQ was unable to
impose a monitoring requirement on the source.
15 Glycol ethers are industrial solvents used in paints and other products.
16 In the EAB's analysis of Complainants' PSD appeal concerning dioxin monitoring, the
Board similarly concluded that "MDEQ's decision is not clearly erroneous." In re Select Steel
Corporation of America, Docket No. PSD 98-21, at 5 (EAB Sept. 10,1998). That holding was
based, hi part, on the fact that the Complainants made "no argument and points out no data to
refute MDEQ's judgment." Id.
37
000124
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In addition, MDEQ believed dioxins are not emitted by steel recycling mini-mills. EPA has no
emissions data for American mini-mills to either support or contradict MDEQ's belief. The
Inventory of Sources ofDioxin in the United States indicates that information has not yet been
developed to determine whether dioxin is a pollutant of concern from facilities like Select Steel.
Furthermore, at this time, EPA does not expect to regulate air toxic emissions from steel
recycling mini-mills under CAA section 112. Without regulations or other guidance to direct the
Agency's review of this issue, EPA is not in a position to contradict the conclusions of MDEQ.
For these reasons, a finding of no disparate impact associated with MDEQ's decision not to
include monitoring requirements for dioxin in the permit is recommended.
38
000125
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B. Allegation Regarding Discrimination in Public Participation
The evidence indicates that the permitting process for the proposed Select Steel facility's PSD
permit did not violate Title VI or EPA's implementing regulations. The investigation's results as
to each of the allegations are detailed below.
1. Timing of Permit Issuance
EPA reviewed a variety of documents from MDEQ concerning the timing of the permitting
process for the proposed Select Steel facility and interviewed the MDEQ employees who
participated in that process. Neither the documents nor the interviews revealed anything
indicating that MDEQ expedited the permitting process for Select Steel in order to preempt an
adverse holding in the GPS case or for any other improper reason. In addition, EPA's review
found that the public participation process for the permit was not compromised by the pace of the
permitting process.
The five months that lapsed between the submission of the permit application and the issuance of
the permit appears to be normal. Among the last twenty-six PSD permits approved by MDEQ,
the average time between receipt of the application and approval of the permit was eight months,
but the average time between the receipt of a complete application and approval was only one
and a half months. Message transmitted by facsimile from Lynn Fiedler to Richard Ida, at 4
(Oct. 28, 1998) (providing table of PSD permit processing times for last three years). Judging by
those averages, delays that may occur in the issuance of PSD permits could be attributed to
incomplete applications. In this case, significant pre-application discussions occurred before the
application was received on December 30,1997. See, e.g., Memorandum from Lynn Fiedler to
the file (December 8,1997). As a result, MDEQ was able to perform a completeness
determination the same day the application was submitted, thereby shortening the time required
to process the application.
In addition, during a pre-application meeting with Select Steel on December 2, 1997, rather than
attempting to ignore the Circuit Court's holding in the GPS litigation, the Thermal Process Unit
Supervisor said she provided a copy of the decision to the applicants. She went on to note that
MDEQ "is a neutral party and... we would be following the process as required by the state and
federal regulations." Memorandum from Lynn Fiedler to the file (December 8, 1997).
Although Complainants may have gotten the initial impression that the permit process would
take over one year based on Ms. Fiedler's alleged comment that it would take "a long time,"
subsequent communication between Complainants and MDEQ should have clarified the
timetable for Complainants. On February 17,1998, Fr. Schmitter and Ms. Fiedler discussed the
timing of the hearing. Ms. Fielder indicated that it would be at least 30-45 days away. Notes
from Lynn Fiedler (Feb. 17, 1998).
39
000126
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Moreover, nothing in the public participation process was compromised by the pace of the permit
process. MDEQ satisfied EPA's regulatory requirements concerning the issuance of PSD
permits. See infra discussion about notice and location of public hearing. For all of these
reasons, it is recommended that EPA find that the circumstances surrounding the timing of the
Select Steel PSD permit issuance did not violate Title VI or EPA's implementing regulations.
2. Relationship Between Select Steel and MDEQ
EPA reviewed a variety of documents from MDEQ concerning the relationship between MDEQ
and Mr. Shah, and interviewed the MDEQ employees who participated in the permitting process.
Neither the documents nor the interviews revealed anything indicating improper or unlawful
actions by the MDEQ, NTH Consultants, or Mr. Shah in their interactions during the permitting
of Select Steel. Some MDEQ employees, including Dennis Drake, Director, MDEQ Air Quality
Division, noted their awareness of Mr. Shah's job with NTH Consultants, but were not aware
that Mr. Shah was involved in the Select Steel application. Interview with Dennis Drake
(October 21,1998). Those MDEQ employees who knew about Mr. Shah's role in developing
the Select Steel permit, including Hien Nguyen, Permit Engineer, and Lynn Fiedler, stated that
no special treatment was given to Mr. Shah or to the Select Steel permit application. Interview
with Hien Nguyen and Lynn Fiedler (October 21,1998).
In some government organizations, regulations prescribe certain limitations on post-employment
interactions with the former government employee. In this case, Michigan does not appear to
have any such regulation. See, e.g., Mich. Stat. Ann. Title 4, Part 7, Chapter 3Ic (1998)
(Standards of Conduct); Michigan Civil Service Commission Rules § 2-12 (Retirement) and § 2-
21 (Conflict of Interest). Notwithstanding the absence of state regulations, the circumstances of
this situation do not indicate any impropriety. Mr. Shah was never involved hi the permitting of
the Select Steel facility during his tenure at MDEQ because he resigned from MDEQ
approximately two years prior to the submission of Select Steel's application. Telephone
Interview with Dhruman Shah (Oct. 23, 1998). Furthermore, even if the federal rules concerning
subsequent employment had applied to this situation, Mr. Shah would have been free to
participate in the Select Steel permit. See 5 C.F.R. §§ 2637.201 to 2637.204 (regulations
concerning post-employment conflict of interest).
Without some evidence of impropriety in the relationship between the permit authority and the
permittee, EPA cannot assume that any such impropriety existed. Accordingly, it is
recommended that EPA find that nothing about the relationship between MDEQ, Select Steel,
NTH Consultants, and Mr. Shah violated Title VI or its implementing regulations.
3. Notice of Public Hearing
EPA reviewed a variety of documents from MDEQ concerning the notice provided for the public
hearing and interviewed the MDEQ employees who were involved in providing that notice.
Neither the documents nor the interviews revealed anything indicating a violation of Title VI of
40
0001*7
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the Civil Rights Act of 1964, as amended, or EPA implementing regulation, by the MDEQ in
providing notice for the public hearing.
EPA's regulations for PSD permitting require that notice of a public hearing must be published
in a weekly or daily newspaper within the affected area. 40 C.F.R. § 124.10(c)(2)(i). In this
case, MDEQ went beyond the requirements of the regulation and published notices about the
hearing in three local newspapers: The Flint Journal on March 26,1998, and March 27, 1998;
The Suburban News on March 29, 1998; and The Genesee County Herald on April 1, 1998.
EPA's regulations also require that notice be mailed to certain interested community members.
40 C.F.R. § 124.10(c)(l)(ix). MDEQ mailed letters dated March 25,1998 to Fr. Schmitter, Sr.
Chiaverini, and nine other individuals in the community who had expressed interest in the
permit. That letter was also transmitted by facsimile machine to Fr. Schmitter and Sr. Chiaverini
on March 25,1998. Nonetheless, Complainants believed that MDEQ should have mailed the
notice to more members of the community, particularly in light of the alleged inadequacy of the
notice mentioned in the GPS case. MDEQ, however, believed that Fr. Schmitter and Sr.
Chiaverini would act as the contact point for their community and alert other interested parties
about the proceedings. Interview with Lynn Fiedler (Oct. 21,1998). More importantly, the
mailing list prepared by MDEQ included individuals who had expressed interest in the Select
Steel permit application and who had participated in other permitting decisions that involved the
area, consistent with the requirements of EPA's regulations. See Select Steel Mailing List
(undated).
The information examined during the investigation indicates that MDEQ provided sufficient
notice of its public hearing. In terms of newspaper publication, MDEQ went beyond the
requirements of EPA's regulations and issued the notice in three, rather than just one, local
newspapers. The mailing list that MDEQ developed also met EPA's requirements and was not
inadequate to inform the community about the public hearing, in part, because the Complainants
took it upon themselves to contact other members of the community. Consequently, it is
recommended that EPA find that the method of notification for the public hearing did not violate
Title VI or its implementing regulation.
4. Location of Public Hearing
EPA reviewed a variety of documents from MDEQ concerning the location of the public hearing
and interviewed the MDEQ employees who were involved in selecting that location. Neither the
documents nor the interviews revealed anything indicating a violation of Title VI of the Civil
Rights Act of 1964, as amended, or EPA implementing regulation, by the MDEQ in selecting a
location for the public hearing.
Complainants wanted the hearing held at Carpenter Road Elementary School. It is not clear
whether MDEQ contacted the school in its search for a hearing site. A MDEQ memorandum
indicates that "there would be ... a public hearing in the local area - either Carpenter Road
41
OOOl^S
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school or another school close to the facility." Memorandum from Lynn Fiedler to the file (Dec.
8.1997). The Air Quality Division Hearing Officer indicated that she contacted the Carpenter
Road School. Interview with Susan Robertson (Oct. 21,1998). The Principal of Carpenter Road
Elementary School, however, has no recollection of being contacted about such a hearing and
said that he normally welcomes such events. Telephone Interview with Charles Atwater (Oct.
23,1998).
MDEQ contacted the Beecher High School and its feeder schools. Telephone Interview with
Judy Williams, Parent Involvement Coordinator, Beecher School District (Oct. 26,1998).
MDEQ ultimately held the public hearing at Mount Morris High School, approximately two
miles from the proposed facility.
Notwithstanding the uncertainty about Carpenter Road Elementary School, the location chosen
for the public hearing is in close proximity to the proposed site. In addition, it is accessible by
the general public. The Genesee County Metropolitan Transit Authority provides public
transportation (e.g., "Your Ride") to the location. Telephone Interview with Ronda Jenkins,
Customer Service Representative, Genesee County Mass Transit Authority (Oct. 28, 1998). It is
recommended that EPA find that MDEQ's decision to host the hearing at Mount Morris High
School does not raise to the level of a violation of Title VI or its regulations.
C. Conclusion
Having analyzed all of the materials submitted and information gathered during the investigation
regarding each allegation, it is recommended that EPA not find any violations of Title VI and
EPA's implementing regulations by MDEQ.
42
000 i £9
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Report
of the
Title VI Implementation Advisory Committee
Next Steps for EPA, State, and Local
Environmental Justice Programs
March 1, 1999
Appendices H - N
-------
March 1, 1999
NOTE RE: APPENDICES
Two kinds of documents are included as appendices to this report: (1) additional views filed by
members of the Committee following its approval of the final report (numbered appendices) and
(2) additional resource materials that are referenced in the body of the report (lettered
appendices). The resource materials, unless indicated otherwise in the final report, have been
included at the suggestion of one or more members because they may prove helpful to those
reviewing the report or further considering the issues debated by the Committee and do not
necessarily reflect endorsement by the full Committee.
-------
APPENDICES
Title Page Number
1 Additional Views [Environmental Justice/Academic Representatives] 001
2 Additional Views [Susana Almanza, PODER] 009
3 Additional Views [The Honorable Rosemary Corbin, Richmond, CA] 010
A Title VI Committee Charge 012
B List of Committee Members 013
C Workgroup I Membership List and Draft Report on Assessment 016
D Workgroup II Membership List and Draft Report on Mitigation 031
E Workgroup III Membership List and Draft Report on a State 049
and Local Government Template
F EPA Interim Guidance 068
G Select Steel Decision 079
H Environmental Justice Protocol proposed by Public Interest Law 130
Center of Philadelphia
I Materials on CMA Responsible Care Program 137
J EPA Office of General Counsel Summary of Other Civil Rights 151
Precedents
K Draft Preliminary Report on Incentives Prepared for the NACEPT 203
Committee on Reinvention
L NEJAC Public Participation Guidelines 214
M ASTM E-50.03 - Standard Guide to the Process of Sustainable 223
Brownfields Redevelopment
N NEJ AC Paper on Federal and State Legal Authority 243
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DEC-32-199S 11:56
CIUIL RIGHTS
202 253 4580 P.04x08
PUBLIC INTEREST LAW
CENTER OF PHILADELPHIA
125 South Ninth Street • Suite 700 • Philadelphia. PA 19107 • Phoae: 215-627-7100 • FSXT 215-617-3183
Michael Ctaireiil!
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October 15, 1998
Ann/E. Goode
Director
Office of Civil Rights (1201)
US EPA
401 "M" Street, SW
Washington, DC 20460
Dear Ms. Goode;
The problem of environmental injustice has been rtcognized for many years but a
workable protocol to advance environmental justice has yet to be developed.
There are some -who contend that a program to advance environmental justice is a
program in conflict with the goal of converting our hazardous brownfields into
beneficial usefields: They are wrong. The eradication of brownfi&ldsin minority and
low income urban areas is an important aspect of environmental justice.
To help achieve the complementary goals of environmental justice and eradication
of brownfields, the Public Interest Law Center of Philadelphia has been developing an
"Environmental Justice Protocol" designed to protect residents in substandard health
communities (minority and low income) from environmental pollution while
empowering such communities to say "yes11 to proposals for developments which
would be beneficial to community interests.
We are enclosing a copy of our "Environmental Justice Protocol" (10/1/98). The
protocol remains subject to revision or amendment based on your comments and
advice. Please let us have your reaction and comments.
Yours sincerel
Jerome Baltfl
Environmental Project
JB/jm
attachments
000130
Appendix H: Environmental Justice
Protocol proposed by Public Interest Law
Center of Philadelphia
'ON
LU'-OJ UJH BD-OJ-UJU
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DEC-aa-1993 11=56 CIVIL RIGHTS 202 263 4SB0
ENVIRONMENTAL .RJSTICE PROTOCOL
Proposed by Public Interest Law Center of Philadelphia
October 1. 1998
INTRODUCTION
Title VI of the Civil Rights Act of 1964,42 U.S.C. §2000d (Section 601) prohibits
recipients of federal financial assistance from discriminating against persons because of race, color
or national origin. Thus, state agencies such as the Pennsylvania Department of Environmental
Protection (DEP) are subject to the requirements of Title VI.
Tide VI also authorizes federal agencies, such as the Environmental Protection Agency
(EPA) to promulgate regulations designed to prevent such discrimination. 42 U.S.C. §2000 d-1
(Section $02).
Pursuant to Section 602. the EPA in 1984 promulgated Title VI regulations. 40 CFR
§7.01 et seq. Unfortunately, they were only procedural in nature and did not include any
guidance for determining whether particular actions of a recipient of EPA funds constituted
violations of the Civil Rights law.
Environmental injustice has been recognized as a national problem for more than 20 years
but it was not until February, 1994 that the President issued an Environmental Justice Executive
Order requiring the EPA and other federal government agencies to develop programs to
overcome environmental injustice in minority and low income communities. And EPA required
another four (4) years, until February, 1998, to publish its "Interim Guidance for Investigating
Title VT Administrative Complaints Challenging Permits" (Interim Guidance),
•*»
In 1998 the EPA organized an Implementation Advisory Committee (IAC) representing
stake holders from across the country to make recommendations for improving the Interim
Guidance. The Public Interest Law Center of Philadelphia (Law Center) presented comments on
the Interim Outdance to the IAC at its first meeting on May 18, 1998 in Arlington. VA. The Law
Center noted that the EPA's Interim Guidance was very complex and included too many factors
open to conflicting opinion for the Guidance to serve as 8 useful tool for advancing environmental
000131
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K-C-02-1998 i;:SS CIUIL RIGHTS 202 263 45=3
justice. The EPA's investigation of the proposed Shintech facility in Louisianna illuminates that
complexity.
In an attempt to provide constructive assistance to the IAC, the Law Center presented a
substitute Protocol for lAC's consideration. Since the lAC's meeting of May 18th, the Law
Center has presented its substitute Protocol at numerous meetings including meetings of the
Pennsylvania Department of Environmental Protection (DEP) and the Philadelphia City Solicitors
Office.
In contrast to the EPA's Interim Guidance which is based an complex disparate
cumulative Impact analysis, the Law Center's substitute Protocol is based on a comparative public
health analysis utilizing official state public health data.
It is well recognized that residents of minority and low-income communities suffer from
substandard public health. This was recognized in the President's Executive Order of February
1994. The Law Center's substitute Protocol is designed to protectl substandard health
communities from polluting facilities thereby fulfilling the purposes of environmental health
protection law and civil rights law.
The substitute Protocol requires the pollution control permitting agency to promulgate
regulations thai would make civil rights protection an intrinsic part of the permit application
review process. Such a requirement would greatly reduce the number of civil rights complaints to
the EPA after the issuance of pollution control permits.
And the substitute Protocol empowers the local community to override the permit
prohibition through the use of a local referendum financed by the permit applicant, affording local
residents control of community development.
Over the past few months die Law Center has presented its substitute Protocol to
numerous audiences and has received some very positive feedback. The substitute protocol
(Environmental Justice Proposal] attached reflects the constructive comments presented to the
Law Center.
000132
'ON XtfJ Hd 10:20 G3.1 86-30-030
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DEC-02-1936 li:57 CIUIL RIGHTS 202 260 4590 P.97/03
Environmental Justice Protocol
Public Interest Law Center of Philadelphia
October 1.1998
1. No state or local agency, receiving federal financial assistance, shall grant a
pollution control permit to construct or operate a new facility or to construct or operate an
enlargement of the capacity of an existing facility in any Affected area where the public health of
the residents of the Affected area is determined to be Substandard.
2. The Affected area of a proposed new facility or of an enlargement of an existing
facility shall be the area within a circle one-half mile in radius except thai the radius shall be
increased so that the area within the circle contains 1000 residents. The center of the circle shall
be located at the center of the operational structure of the proposed facility
3. Public health shall be determined from government health department records for
the most recently published five (5) year period at the time of the permit application.
4. Government health department records are to be used for assessing public health in
respect to the following health factors:
(a) Age adjusted mortality rates
(b) Age adjusted cancer mortality rates
(c) Infant mortality rates
(d) Low birth weight rates
5. (a) Standard public health rates shall be the rates of each of the health factors for
the enure population within the jurisdiction of the agency which issues the pollution control
permits in the Affected area.
'ON XVJ Wd 80:20 Q3M 86-80-03(1
-------
DcC-02-1993 U:S7 CIUIL RIGHTS 2322604530 P.29/08
(b) The Affected area shall be deemed to be a Substandard Health Area when
there is a deviation of at least 20% in any of the health factors between the Standard Public Health
rate and the rate in the Affected area.
6. Residents of the Affected area shall have the right and power to override the
prohibition of grant of permit under paragraph 1 by means of a referendum among the residents of
the Affected area, the cost of the referendum to he paid by the applicant for the pollution control
permit.
C:\WORXUESRYWO lOCOL
TOTfiL P.B3
00013*
80/80 -d 'ON XW Wd 8Q:ZO GH 8B-EO-03G
-------
7025488170; 25 Feb'99 12:17PM;Job 449;Page 2/3
Pagel
EflVTRONMENTAL JUSTICE PROTOCOL
Public Interest Law Center of Philadelphia
Draft2/S/99
INTRODUCTION
The Public Interest Law Center of Philadelphia (Law Center) herein presents a Draft of an
Environmental Justice Protocol for use by the EPA and by State environmental protection
agencies to determine whether proposed permit applications are in compliance with the Civil
Rights Act of 1964, Title VI and with the goals of environmental justice
This is a Draft. It is recognized that adjustments will be needed'in response to comments
and suggestions, all of which are welcome.
»«•*
I. No State or local environmental protection agency which receives federal financial
assistance shall grant a pollution control permit to construct or operate a new facility or to enlarge
an existing facility in any Affected area where the Public Health of the residents is determined to
be Substandard; except that such prohibition may be overridden by a referendum of the residents
of the Affected area (see paragraph?).
2. The Affected area of a proposed new facility or of a proposed enlargement of an
existing facility shall be the area within a circle of radius ___(Distance) except that
the radius shall be increased so that the Affected area contains a minimum of ( ) residents.
The center of the circle shall be the center of the property owned or leased by the permit applicant
for the operation of the proposed facility.
000135*
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Sent Bv: .' 7035488170;
25 Feb'99 12:17PM;Job 449;Page 3/3
Page 2
3. The Public Health of residents of a geographical area shall be determined from the
records of state or local health departments for the five (5) year period preceding the time of the
permi: application and the most recent records published by the U.S. Census Bureau.
4. The following factors shall be used to determine the Public Health of residents of
any geographical area:
a. Age adjusted mortality rates per 100,000 population;
b. Age adjusted cancer monalijy rates per 100.000'popuJation
c. Infant mortality rates per 1C 00 live births
d. Low Baby Binh Weight Rate (under 250C grams) per 1000 live births
5. Standard Public Health shall be determined from the health factors for the
population of the entire state or county in which the Affected area exists.
6. The Affected area shall be deemed to have Substandard Public Health when there
is a deviation of at least ( %) b (each, al!) of the health factors in the Affected area as
compared to the Standard Public Health.
7. Residents of an Affected area determined to be a Substandard Public Health area
shall have the right to override a permit prohibition by a referendum, paid for by the permit
applicant.
000136
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ID: FEE 25'99 16:54 No.002 P.02
e?
Responsible C«r«*
Appendix I: Materials on CMA
Responsible Care Program
000137
-------
ID: FEB 25'99 15:54 No.002 P.03
Guiding Principles
These statemenu of the philosophy of fJsspon$ii;le Cart* outline each f MA member ;>na Partner!. coinrnitmenl lo
environmental, health and safely responsibility in rruuuujiruj chemicals Members and P.vtrif-rs pledge 1
Iheir businesses according to these principles:
• To recogrwr: ana respond to commun/iy coi if I.-HIN iibuut chemicals and our operations.
• To develop .ind produce chemicals rhar ran lx- rrwriufdiiurtu transported, used and
disposed of safely.
•To fnake health, safey nntl cnvironrricnuti considerations a priority in our planning for al!
existing and nrw proQucts and processes
• To rc-pori promptly to officials, employers. f.uMnrncvi and the public, information on
chcmical-reteted health or ^nvironmf-rtirti twwds and to recommend proiecilvc mc-
•To counsel customers on tfn? >
-------
ID:
FEB 25'99 16:55 No.002 P.04
1O Elements of Responsible Care*
Guiding Principles
w statements of the philn»ij>]iy of RctponsiUe (liir"
outline eatri CMA manlier and Partners commitment HI
enviioouienul, health and wfiriv responsibility in managing
chemicals. MemK«j and I'irtncrs pledge to manage their
hutincsscs atxnrding to these principles.
Codex of Management Practices
At the hean ofilie Responsible Care* initiative *rc the si\
Cndes of Minsjj:mcnt Piaitice*. The Codes fiicm on
management pnaiccs in specific. arras oi diemical opciauous.
Members and Parmeis must rrnfcc continuous pioyv« ui
aiaiiiing nc goal* of each ("ode.
• The in»lunity Awareness and Emergency lUspeiiw
(tlAl'RJ Code pmmnrci emergency response plamunj:
and calls for ongoing dbtngin with local comir) Jiiincv,
• Tlie Pollution Prevention Code- conuuiu iuduwry 10
i he ufe management ond reduction of wastes:
• 'llie I'rneest Safety Code it rlcsiguol to prevcni fiiv*.
expWiorec and acvidcntal chemical icleuo;
• The DJJtfiVjurion Code fo^u*e» on reducing eni}il")r<-
and jHiblii. rulo. rroro (he shipment nf chrmic^k and
Ifinlkl 10 the crant;v>r|,iik>ii, ttura^e. handling, irjiiilrr
and repackaging of c'taniuils:
• The Fjiipiuyrc Health and Safety Cnrlr picKccu cnijilnyw-5
and visiiort at company liiev; and
• The Producr Strw^'dslup CwJe mjkcs hcallli. safrry and
enwtonmenral proicoion an integral part of design in j>,
rnanu&cruring, marketing, di^rributiiig, usinj;. re-ry.'lin£
ajiJ disposing ttf pioJu.u.
Public Advisory Panel
A group of enviioiuiicuul, hcjlrh and safety thought
leaden jrats the indasuy in identifying and developinj;
progruru and actions thai sir responsive lo public cnnrr inf.
Self-Evaluations
Members and JSrmrm submit rcpiirrs annually on their
profii«i iii implemenrinfi each of rhr C.odrs. Tlirie sclf-
evaluaiioiu p«rwidr a measure of company progreu jiiri
arc a valuable managancnt tool frr CMA and individual
cuinpaniet in directing anisancr rOTons.
Measures of Performance
Kccagniriiip the nctxl for nx.iturcincnt thic goes Wyond
self-evihurifliu, performance mcj>um are hein» dcvi-io;«rd
fw C«.h of the Codes, lliroui^i rhrsc measure*, the inji jtry
and ibc public will oalr a UfUer apprrctaiion for rhr j>in^i:^>
CMA mcrorwn and T^rtncn are making in tarrying cut
Rejponsible C»re*.
Management Systems Verification
The Manxgemcnr Sysiejiu Verification pmccxj assists
mtr.ihn* aiul I'arrnere in tlirir m.injgojuent and
itnplrnirnuiinn of RcsjXdisiblc (lire*. "J lie process piuviJcs
I'lrticipatine companies wilh an external view of the
d]i.xT.ivcnrm oi ihtir management systcmj for Citiying out
Responsible C jrf* aiul helps demonstrate rhc integrity of
ihr iniiiiin-c to key audicJK.cs.
Executive Leadership Groups
Srnioj kvtrl support for RnpomiSIc C»Je" tontinucs to
he an rwnrial ingicdieju of rhe iniiiatives success. Regular
Hponal meetings provide a foi uin for senior executives, ro
slurt «|viif nixa and take action on jdvancing ihc
iniplemrniaiion of Rc*pon*!l>li- Ore*.
Mutual Assistance
Hirrri cujiip»ny-to-corapany nmruil aciicance lias
surfaced a« one uf the most rflcciive methods for advancing
]U'ijvm«Mc <'.-.ic*. Members and I'artner.s ar rhc CACIUUVC
luiiuct. Kctponsiblc Cire" C>x>idi»aioi and praeririonu
lvvd» rcp.ulaily *lisie iafurmation through the murnal
nvk«tiuii.v ncrwoik, often thmiiph ttnic cliianical a«jociaiion*.
wliidi are v:t.il 10 tlu; »u>.«si of rhc network.
Partnership Program
'j hr I'ninu-islnp I'rogram provides ai upporuinity for rh<>se
whrv othci wise may not be eligible fnr mrmbasliip in CMA
tn piii'[ct[Mtc directly ir. the Htsponsihlr Care* iiiiiiative.
Ownjwmcs tiut take ownership or poneKioQ of ckcmicaU
jnd rhrmiul reklcd aasociarions are diphle fen meJiibenhip
in the Responsible Care* 1'irtnciship I1ro(?am.
Obligation of Membership
(:MA UjUwj o'alijpte mernbu tumpinir* to participate in
llespoiMibii. Care" as defined by the Board. This includes
asiihing ii- llic Guiding Principles, participating u» die
drvrlnpnitiit of t'ne iniriaiivc xiid aiatinp good faith cfltirts
ui impU-iiuiu the program clenienc. of
(larr* ir.itiaiive.
000139
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ID: FEB 25'99 16:55 No.002 P.05
Community Awareness and Emergency Response
Code Of Management Practices
Purpose
The goal of the Community Awiiraic-i* anil fcmno,cnc y Nvspomr1 [CAIIRJ Code of Management Practices is 10 assure
emergency preparedness and to fosttr community r ••qhi-uMnow. I! ttonvinds a commitment to openness and
community dialogue. The Code has two major components: fir JL to y assuring ilvil e/ich facility has an
emergency rwpomr- program to respond rapidly and ef let lively to en ic-iy a ic /cs.
Tr»e community nuiffinrh component will communicate prtxjwn ci'.tviiic^ ciiid performance under all codes of
management practices and will promote an open. onycjmy ck-iiugur- wiih employees and the community. Information
should be provided about such activities as watfr mini/ ni/;ii ion emission reduction health eltecis of chcmic<. CAf-0 supports ihe
communityi ricjht to know atjout chemical Industiy operations and their erfeci on iafety, hc-cillM. aruJ ihf- cnvironmpni.
C/VCR oiicjiiwlly wds d voluntciry Infttoilve fbcusr-d on rmprgency responie issues. TTie new CAFR Ccxic uf
Manacjcmenl PriiciiCCS Oro<'iflcn<: ihc ffx Iliry community diniogue to cover the full rancje of wfc-ly, ii«iltn ^nd
environmenta) issues
Relationship to Guiding Principle*
The Code helps achieve several o1 the Responsible Giro* (-mining Wnciplf<:
• To recognise and respond rn community concerns ;it>out themiciili and our opt'iotions.
•To report promptty to ollicitils. ewpltyec'S, CIMIMMC-IN. *mi ihr puhhi , information on chemical related health or
environmenul hd/ards and ifcyfirmend proic-f live nicvisuus
• To pfiriirlpaie with government and others in creating responsible laws regulations, arid *ltind;irc!v to wley^wrd
ihe communiy workplace and environment.
•To promoif UK: iwinciplo yncl p'cKl'Ces of Responsible C.-iw"- by stenng experiences and offering assistance to
others who produce, htinjlf. use. ir?nspon c>r dfxpMp of chemicals.
Mnn*gament Practices
A. Coi«'»uniiy Awareness and Our reach Iw the Community:
Member facilities thai numiiacuirc, process, use, f>- An ongoing awcssmcnt of community questions
distribute or sture liusrdoux uuiciuU dull luvc it .inri i'/tnrrrn.< .ihour the fnciliry.
community outreach program tlul includes: 7. An outreach program to cJut»tr respundcn,
- ,- | i-ovcrnmcnt officials. :hr mccjii, otlicr biuincncx
For Employees: '• . . ,
and the community about the fdulitys emergency
1 . An ongoing assessment uf employee questions xnU ivsjit-uif program and risks u> tlie cultunuiiity
cuuccrm alxjui die fiuliiy. associjicd with the faciliiy.
2. CcmrnHmcations naininj> Toi key Facility and 8. A continuing dialogue with local citizens to respond
company personnel who communicate with tn questions and conoenu about safety, health, xncl
employees and the public u.
-------
ID:
FEB 25'99 16:56 No.002 P.06
B. Emergency Response and Prq.*r«lacss
Member facilities that manufacture, process, usi-,
distribute or store hazardous materials shall have art
emergency rcspoiiic program »hai induces:
1. An ongoing aue«mpm ofpoter.tial risks to
employee* and local conununirics resulting from
accidents or oihcr emergencies.
2. A current, written facility emergency response pl-in
which addresses, amonp mhrr ihings, eomrmmicaiiojis
and the recovery need: of tile community after an
cmcigency.
3. An ongoing mining piogram for those emplcycii
whn have rei}xjn>c or cnmniunicaiiun*
responsibilities in the cvenr of* .in cmeigtncy.
4. Fni£rgcr.cy exercises, ai lc*ii annually, in irst
operabilit)- of the wriiirn tniergency response plan.
5. Cnmmiiniratioti of reievanr and ti^cful emergency
response planning information to rhc Local
Emergency Phoning Conimirtee.
6. Facility tours for emergency reipondm 10 pjoiiiuie
emergency pirriaicdne» and n> provide currwu
knnwlcdgc of facility operation*.
7. Coordination of the written raciliiy cnwi^iicy
rrxjK>nJ* plan with the comprdieusive community
emcrgriicy response ptin and other fccilities. If IMI
jtlan CX!A£. the facility should initiate community
dTons ic crea» i phn.
8. Participation in the community emrrgnu-y f«jx)ii«r
planning pmcna to drvclup and periodiralry test tin
comprehensive community emergency response
plan developed Viy the I<>faJ tatergency Planning
Committee.
9. Sharing of infoiiiuiioii and cxr>cr!cncc rclaiing to
emergency response pbnning. cvtrciset. and the
handling of iiiudene with other Udliiics in the
community.
Wi fait cfbmmn
C. I VK-J
000141
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FEE 25'99 Ib'-bb NO.UU^ K.Uf
Pollution Prevention
Code Of Management Practices
Purpose
This Code is designed to achieve ongoing redun.orw in the /uriuurit of .ill rontaminnnu diiJ poltuwiK released to
the sir, water. and land from mr-mbcr company fariiities. Th«i- i«Ju< ibns arc Intended 10 ropond to public conrerns
with the existence of such relews. and to further increase the rridiuin of wfay for public hc-aiih and the wivironmeiu.
Ihc Code is also designed to .xhicvte ongoing rcciuction.? in liic ctrnounr r>r wastes generated at facilities. These
reductions are intended to help relieve the burden tin industry ;HVJ s-ociery of managing such wastes in future years.
In Implementing the Code each company should urive for nnrujcii iccluuions. recognizing iiva production r;>(e*, new
operations, and orher factors may result in jncrKwrv i >cspite these HuxiuatiorK. however the goal is ro esrablisn a
long-icrni, suoswnwi downward rrc-na in the amount yf wastes gr-neicueu and contaminants rind pollutants rHeasetl.
QuanUUilive reducrion goals will be established for giving priority rn mosc polluwnK. contaminanis ;ind xvasres of
highest nedlih and cnvtronmenral concern.
This Code also includes procuco that addrp^s the troader w-ijtc rnanagem^nj issues beyond source reduction and
other wr rorujjiiny mu<;r manage remaining wastes ^nd refcaies in a
manner trial protecrs the crivironmpnr and tfie he.ilih d(wy of rmpioyces and rhe puWic
This Code compicmenrs and should be irpplftniecitvU ir\ tc>njun<-iiriri with current and future Codes of MaaTgnment
Practices. Key terrrii are defined in tho Glossary, which should he rniiu.iitccl for assisit'iritc: in inrerprrflnQ the provisions
of this Code.
Relationship to Guiding Principles
The Coae. helps achieve several ol the Respomibli.- Cote*' Gutting Printiples:
• To recognize and respond to communiiy concerns .inotji i.'icrnitals ^nn nur operations.
• To develop arid produce rncrnicals that ran w iriciriulacturert, tr^invported. used ano Oiipaseri of «ifcry.
• lo make health, safety and environmental con «i priority in our planning for ;>!! existing and new
products and processes
-'lo report promptly to officials, employees, customs ,mcj the public, information on chemicdMelaied henfrh or
environmental hsi<:«irds and to rcrrimmonci prorer livf- niciisutcs.
• To operate our plants and facilities in a mariner ttar protrrn the environment arid the henlrh and safety of our
employees and rr»c public.
•To extend Knowledge Ly conduaing or supporting msr;irt h C.TI the hea'rh, safety, and environmental effens of
our products, processes, anci waste materials .
-To promote the prinrlplf s i.nir ltiw>. regulations ^ncl standards to saiecjusrd
the community, workplace «'ind environment
•10 promote the principles and prar.ii<« of Responsible- (.<<«." by stwring r-xperiences and offering assistance- to
others who produce, handle use. iransport or dispose of uiemicflls.
Management Practices
Each member couipuiy »hill have a pollution prevention 4. Fxlucation nf, and dialogue with, employees and
program which shill include members of rhc public alwur rhc invmior)'. impct
cvalujiinn, and risks 10 the community.
1 . A clear ununiimcnt by sc«ior nu«^n>cai ibraunh fMMidmtM of priomi^ K»i\* and plam for w«c
poky. commumcano.U. »»1 «*n,r««. I. .ng«nf ^ ^ ^ .
.«
rcdu«,ons « each ofihe co.npnn/, facJ-uos. u, «. M11,,nillli concern$ and lhe rtential hwhh, S3fcry,
n> the air. watr, and land a,,d » th, pcncrat.on of w*w. y . ^ ucf
. ^^ ulldcf
2. A quanritativc iiivencoiy at well facility of wastes Hrar.iiws H and 4
e^crated and rdc»o « chc air, water, and Und, m««,,«l ^ o 01 , rcdllclion of wasr« and ,,,„„. pv;
or «timatcd ar the poi» of ccncmt.o,, or rdc«c. pItfcmK* finr ro source redaction, S«oad to
3. £v»liurinn, sufTiciciit to >s»55 in es^blishmg ,«iuaion lfu$f alK, l||jKj w ctcirmciu. j-^^ techniques nuy be
prifuiiK. of the poicmial impact of relcsK* on the ^ >..[,.(ralejy „, in combiiution with one suiocher.
euvironmcnt and the health and safciy of employee*
000142
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ID:
FEB 25'99 16=57 No.002 P.08
?. Mcxsuicniciu of'piogins at e-Ji.li facility in reducing the
generation of wastes d
release reduction leduiiquo:
c. Awisriiig in establishment uf rcgiorul air
monitoring networks:
d. ftmcination in dloru to develop cnraeruu<
appnurhrs to thr rvaluaiiu:t uf environmental.
health, and Kifrry impacts of rclcast.;
c. Piwidiiiu eJuciUoiial workshops and craini up
materials;
f. Assisting local govrrnmcnt; and others in
esuhlishmenr nf*wnite mitinion prograiiu
Ulicfitinj; the general public.
11. Ptriadk nolvuiicm of waste management pracuccs
anodated with operarioni and rqiiipmcnt zt CJuli
member tumpiny facility, tilting into account community
concerns and health, safety, and aiviroitmenui impacti
and unplcmcm.iiion ol ongoing improvement*.
12. Implementation of a process forsdociing. reuiiuni-,.
and reviewing <.-ni xml k'l
wutking with others to rctnrvr identified problcliu at
cadi auive or imrnve fad'ity owned by * rnemhci
company nlcing into account ujnuiiuuiry cnnccrat .ind
health, afery, and rnviiontnmtal i
Gloimry of Terms
As i.sr.T « win CMe. key teiim uic Jcfmco ss scrrmrtn nwnw.
N'ii-iii..i ihoc drfnitiore mayhohnwrtrt i!mi ir-yiAnt! tli5 CC\1c Uoti ntt relieve s
torrrvirv M me rotgaKon w m«3 Fcdersi. swte ?n«J ftpf chcmiral nwni/fsriurtnfj.
:HH.C»O u niuicrial
nx'uil «t mytcnVil tor TOJSK.
Firm/try.
Recycle • A ixycticc which
TIUIII ' wnis^ion. pAXo-m. >ijil(. (Kiihivgc w disposal to
ir>r wr. ivnn. or w,vtei; ol jiy pulluUint or con»minw>r.
f<.Mitiri.» or .v.-iijmi^i. *i ui ftwi r j fjtffiy Tho term aoes not
nrnrt*- -JujKiinu ot diiUibution of crvmirei pmnuCt. nor
in it ii- cJivwc of a
:««ILK.I Cy the tonsumer
Reuie • /\ practice rrwt rtemfjlcyi j nutcru-U from a pnvp«
c-ithtr K' AH n v(ii>«ii«ii oi fl piLtm to rvke s pmotjri. nr ,v. .«i
fB«t.vi> hiiiitiiulv fora commcnvu nrtxijfl »i s fMiiiiuU
Sourer ftrclucnon • A y^KiJU: tlwt rcdurp? m»> ,irnoijni of any
"ck-vin.- or wnsic pcncrfliKl •« mf sou«. intiuUing cloicc) loop
r-mi-r.j «jiv-t ^dtiiCei cqut»nc nr anrt rw rmf*»y nKHlil
pictcii .u*l pmrKluw! .mnailir.iliotii. rffcrmutonoo
r/ f*jr*1i«iv. ^ulrviiiuiicMi uT low rrutchals ?nfl ffTiprfivemeri
ficjr>.r»'iiii>y lujiiuctuntc. tr.i^nirvj end inventory cuiiud.
TnrMmcnt - A punace ctfipt tn?n recycle Of feu»c. th.* *tors
l chemiral.
.
of ;i w»src mrsn^n n process Cf atwj^ jcpswrcr from tn?
prf>.:irfii( .* i MimiieiLlof pruUua or the provision or A **i»kv.
\v«!tt- /W-' luv«*tJw»J» ur non rwwrdexjf. rtv^ti1: not US£*J fiwlfic/ in
ihe pjvc.'ji.ucr» cla commwripf piTwltiri rv i^vivivari yf «i service
a;icl wiwt. ir«-lt is not » roinmriikii pr wluil.
^pfMMJt, (-AM. lirmleflMiKtvnApllS l?jri t*t SepirMlit, 5. 1991.
000143
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ID:
FEB 25'99 16:58 No .002 P.09
Process Safety
Code Of Management Practices
Purpose
1>ie Procrsi Sat«y Code is cJeiiyriecl irj prevent liro. explosions and iK.uclt.Ttui! chcrniwl iclciiici The Code ij
comprised of a jerici of minicigcmcni practices iMcii tcHeci itii> i/iwi. with ihe expectation of curuinuoui performance
imptovcmcr'ii for cocri manege-mem practice. Vie i»'i< IKO <"c- uis«*s «n ir«: principle ihjii fociWcs will be safe if they
.ire designed .iccrirding to sound engineering pvinirw. hurt. aptwiir-ri nnri maintained properly and periodically
reviewed for conformance.
Process safety is •">" mif-rdisopfiiviry effort. Consc^ue-nily. the- Coilv is riivirlml inio the following four elements.
inanagcmcoi Icvidcrstiip. icclniulogy facilities ;a«i \*IMVU:-I. I-M\\ t-k-incni is compriSt-d of rrwirh-tgc-mcni
Individually, wch pfcxlKC dcsculxs i inipuK.ini 10 pnvcnilng fires, irxpiosiciiis t>nd chemical operations to
maintain or enhance the safety originally designed inco
the facility.
facilities
11. Consideration and mitigation of the potential safety
cfTci.i.v vf expansions, intxliliLalioiis and new sites, on
il-c «.ini)uiniiy, ciivironmciit, and employees.
12. l:aciliry design, construction and maintenanee using
sound cngineerinj; practices consistent with recognized
cudes and standards.
000144
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ID:
FEB 25'99 16:58 No.002 P.10
13 Safety reviews on ill new and nuxiificd faciiitie* during
design and prior to srsrt-up.
\4. Documented maintenance mil inspection programs
that ensure ficiliiy integrity.
15. Sufficient layers <>f protection through icchuoliify,
facilities .ind employees TO piocnr escalation from a
single failure to a catntrrojiluc event.
16. Provision for control ofprnct-wj and equipment dining
emergencies requiring from natural events, utility
ditniptious and other cximul conditions.
Personnel
17. Idcmifiuticm of the skills am) knowledge nece.«.iiy to
perform each job.
18. Establishment of procedures nnd work practice* for safe
operating and maintenance activities.
19. Training tor all cuipJuyen to iracll and mainnin
proficiency in safe wurk practices and the slulK and
knowledge necessary to perform ihur job.
2fl. Dcmonstntioni and docuniencatinn of skill proficiency
prior to assignment 10 indcycixlcn: wotlc, and
pc/iodicJly thenaftrr.
?.). PnjgMim designed to issurc th.ir rmployen in safely
cricica] jftb« arc fii (i-r duty ind arc 1101 compromi^wl hy
cuunal influences, including alcnho! And drug abuse
22. Provisions tiuc uintracrors either hive programs fur
rhcir own employers consistent with applicable svau>n.v
of diU Gide or Sc ineJudeti in the mcmbu company's
program, nr some combination of the two.
Glossary
i'ii> Code us^ Iny lefiru in x rnntsai Uuitmay h*> Broadw than
their A«(viMrd rtgutofory ar'iMJyns. Hnufvtr. aJhcrtnce rr;
rnlt C ,-HJr dcx-s not mli«ve o company 01 tht obiinsf'nn to rneel
Federal. «•»!«? .'iKl local reguwlwy tequirempnu.
Proecii Safety • Ine jpplication of rrtitwyemonr ana
Ki/Wtv to pm/snrfirei explosions arxJcnri by prtWKK*KI! juJymcr.r.
Safety Critical Jobs Juts, activities *r»J IrtJcs. if improperly
lA-ifwrncS. thai nave UK potenrlai to siynifiuinty inrrea^e trie
n'sk or ^ iir?. rxplysion of ^rctiVr't J t^urmical rcieasft.
Accldenuil Chemical Rele«e - Unplsnn«3. suin ot land It rlo« not include
ixiiinunl or otfiw remses
l. 1990.
000145
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FEE 25'99 16:59 No. 002 P. 11
Distribution
Code of Management Practices
Purpose
me purpose of the Distriouliun f.'oclc Of Mflnogr-mpnt lYiicrices is ro reduce the riik of haim posed by Ihe distribution
of chemicals to the general public: to carrier, distributer, contractor and Uievrrital industry employees; ,ind to the
cnvirdnmenr. Adherence to the Code will lead lo ( oniintrty snlpr chemical clisiriDufon and help member companies ro:
• evaluate the risks associated with chemical distribution l distribution:
• provide emergency <*dvlr e .inri/or assistance to people on the suvn- in Iho event of a chemical
distribution emergency;
• develop new ic-chnoioglM and methods to improve che»weii riMriiiuiion wfery
The Code will also promote improvements in:
• employee preparedness i tJiMiii>uin»i services;
• rhe public's preparedness in rciponcJing 10 rnsiw/il distribution emergencies:
unflerswnding of. and confidence «\ irtilmuy rtloiis to improve chemical distribution safety.
The pisiriDuiion Code of Management Practices api'lk's tw pubiir.
• lo participate with government and otncrs in ensuing rrsponsinio laws, regulations and standards to safeguard
the community workplace and environment.
• To promote the principles anU ptcCtiCCS Of Knponsu.k- f/ir^ hy sharing experiences and ofle/int) assisumce to
Others who produce, handle, use transport 01 clispusi.' or
Manngement Practices
Ivich member oc«nP4iiysliilllu«, an ongoing ehcmic-il
iupc< implementation of npplicnhlr rrgulnrions
ami company requirements.
000146
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ID:
FEB 25'99 16:59 No.002 P.12
23 A program foi jj^ividinp guidance and infos iiiJiitin
to carriers, distributors and coiuiaciorx who |vilorm
distribution activities for the company on the
company's training and compliance requirements
fe>r the activities.
2.4 Regular reviews of company employee, tamer,
dUrrihiuor and contractor compliance with
applicable regulations and company requirements.
3. Carrier Safety
3.1 A process for quJiryingciuiers of a!J modes and ivjics
(common, contract, private and cuiromcr tvmiollnJ]
thai uaruporr rliemicaU lu and from company
facilities that emphasizes carrier safety fitness and
regulatory rompluuu. and includes regubr review*
(.•T their performance and minpliance.
3.2 IVolUadi u> carriers on iheir safery pci her«>niicl and provide
(ceurrment of the lading during traocit.
43 Documented piocvdure: for unloading chctnic.ih
ax the comj^nys facilities rkir will reduce cinix^iiins
to the environmeai, prutcct |wrsonncl, and provide
(or safe unloading into proper sniragr factliiiis.
4.4 Defined criteria for the cleaning and return of rank
can. lank uuUu, marine vends:, and rrrurnahlc/
rcfilbhlc hullc and semi-bulk containers, and fur the
proper disposal of cleaninp, t«idii«.
4.5 A piogram for providing guidance and information
10 customers, H'usrribuioiv, and other rcccivct; uu
proper pmcedurr^ for ur.luadinf, and ci«ihi£ iln-
cvnipanyt chemicals.
4.6 A process for spire ring liuuiLutors and other
fidliiies that srere or handle the compn i/s.
dicrnicab in mniit dial ciiiphaxiicT safety /ili)CS>
JiiJ regulatory compliant and indudes icgulr.i
reviews of their performance and compliance.
4.7 feedback to disiributon nnrt operators of other
facilities that XLOIC or luuidlc chemicals ill iraruii
on thai fifery nerfonrunce and juggctiiom for
improvcmcnr.
5. )-i!urj',cncy Preparedness
S. ] A ]>IOCCM /or responding uj thrm!«il disifibjrion
.icridenis/iitcidenrc involving the compjnyt
chernicAU.
').'). IVitumenred pioccdures for m»lcing inform.irion
the company's chcmif.il« in distribution
to response agencies.
5.3 A piogi.im for making facilities and/or training
materials xvailalile to emergency response ng«ities.
5.4 l)i.iln>ur wiih sutc snd local emergency
planninporganizarion^nn the Jutnbution and
In/aids of die company's cliemicals to improve
community prrpai ccinvss to rcspnnd 10 dicjnial
ilisiribtition emcrgciiciia.
5.5 ni.ilijgiii- will; the public on their concerns
jlvnir chemical distrihmion safety, actions rakcn
hy ific indnsuy and the company 10 improve the
«fcty of chemical disiribuiiuii,
of cmci£iMicy prep.irrdness and
irsj!rtii$c assistance.
000147
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ID:
FEE 25'99 17:00 No.002 P.13
Employee Health and Safety
Code of Management Practices
Purpose
The goal of rhft f-mpioycc Health and Safely Cc>tic- of WxirieK/erriau Practices is to protect and promote the he.alrh
and safely of people working at or visiting rnfrinljo (.unfairly work sta
To achieve this goal, the Code providca rranagemen! pr.inros rti^ignfrt to continuouvly improve work site health
and safety. These practices provide a mulc'disriplirwy me.vK ID irjr-niify ;inci assess hazards, prevent unsafe acts and
conditions, maintain «inrt Improve employee healrh. iw.u *nd promotes ihe health and safety
of employees, contractors, and ihc public and protects the environment
Relationship to Guiding Principles
TTn; Code helps nr.hirvr- several ol the Responsible Ore* Cnminuj Knnr.ipiq.-s:
• To rc-fognuv ctfiU respond to community concern:. cibyul chemicals .inrt our operations.
•To rrwkc health, scile'iy. and environment;!! er>mifi:Yrn;on<. # priority in our planning for all existing »ina new
products and p/ocesses
•To opewie GUI plant* and facilities in a mnnnc-r iru'ii |)roicxt> Hit environment and the healrh ^nd wfcly Ol our
emplryccs ruu-cting
and piviiiiouug tlic hulth and snfery of people walking
at or visiting tnemher cnmpaiiy woik siies, dirougli.
published policies; accoun-.jhiliiy for implcnicntjiiun;
and prnvijion ofsvifficicm resources, including
<|iulifi«l health and safety personnel.
2. Opportunities for employees to participate in
developing, implementing, and reviewing health snd
safety programs.
3. Provisions, including selection critciia, CO confirm
thai on-site contractnn* pmgr.ims .ire consisiciu with
applifaWc Miiiagcinciu I'ritiiccs of this Code.
't. Written, up-to-date health ami wfcly progranu and
piccrttures appropriatr to the facility.
5. Meant i<» verilj1 ilwi hcJili and safety ptopams and
procedures are effective and ilui iaua! practices nrr
cnnsimninnicaiion of health and snfny iiifoniwiion that
is irlfv.mi to specific job tasks and the woiksitc,
IS. Hcv.lih and safety training progtaiiu, including
documcntnu'iu ofilies^ pio^ranut and methods to
evnliiair. ilit c/Ttctiveness of hoth mining and
(.vniinunicitions activities.
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ID:
FEB 25'9S 17:00 No.002 P.14
Product Stewardship
Code Of Management Practices
Purpose and Scop*
The purpose of ihe Product Mtwdrdship Corn- vi Management Pr^ctites is 10 mew health wfny and envirorvncr itdl
protection an inicxlfdi par! of n«lgning. mrmuf.viunntj. rrwrkMiny. cnstn&unng. usmy. /etyrJinrj ana disposing of
our products. The Code provide? guidance .is wrn cis s mwri tn mrAure ronrinuoui improvement in the prar.iice
of product stewardship.
The SCOOP of the Code cc«n>. uu
Inc Ccxie rwogni/cs that endi f.ornpany must c«ritue indrpf:ii(Jt.-fii judgmpnr and discretion ic; iutt.tsifijl|y apply
the Code to its produce, customcii TV> on tis wfc u$«. iranspwl.iiinn jnd Jisprivi ol chemiMl procJuus
• To rppnrt promptly 10 off oais employees. to«omr-i-s cinU ne puhlir. intormarion on (.hefnir^l-rctetcd tieairh or
environmental h,vit.rdi cind to recommend proir< ivc intfrniirt-t
• To promote the principles ?nd pr^cKe^ of RwponciiMc C?re* ny uwHncj experencw iincJ offcnntj diiiitanre to
orhrrs wHa prcdurr , hcint!!e use. transport or rtKpojf of chomic.il*.
M«n«g«ment Praetleas
Fadi compny tlijll luve ut ongoing fiuduer sicw.mlsli!p
pmrcsj tliit:
Minigcment Lcadcrthip and Commitment
1. Leadership: Dcmonsimes scnioi nuiugcmcnr
Iradnship through wriucn policy, a .'live pjrtirifotion
and communiatipn.
2. Accountability and Performance Measurement:
foablishes ftcult and rciponsihiliiies fur implcmrmm)'.
pnxiuit ttruirc'tlup cKroLgnoui ilieorpniuik>'i.
Measures pcrforminrt i}>,ainH'»!uiis and Icncrwn jiruducr uses. Implcmrnu a lyjum
ir).ii fiuuungcs employee^ in feed luck information on
no- u.vcs identified aiUuse^ or adverse rfFrcu for uic in
pivJiKt ri«lc characterijarion.
000149
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ID:
FEB 25'99 17:01 No.002 P.15
9. Contract Manufacturers: Selects coinuu manufac-
turers who employ appropriate practices for health,
safety .iixl environmental protection for die operations
under contract, or works with comma nuntifaauicis
to help them implement such practices. Provides
information jnd p.uidancc appropriate to the prorfiu i
and prorcre risk to rosier proper handling, usr, recycling
and disposal. Periodically reviews performance of
contract manufacturers.
10. Suppliers: Requires- suppliers to provide appropriate
health, safety and environmental information and
guidance on their products. Factors adherence lo
sound hc.ilth, safety, and r.nriruiuucntal principle,
such as rlinsv- contained in Responsible Care* into
procurement derisions.
11. Distributors: 1'invMcs hexltlu ufcty and cnvimn-
meni.ll information to distributors. Ccuiuuensurare
with product risk, .tricots, works with and paiodicilly
reviews distributors to foster piupcr use, handling,
recycling, disposal and rmnsmiual of appropriate
information to downstream liters. When a conijwn/
ideniifies impropci ]>r«uiccs involving a piuducr, it will
work with the dUiribmor to improve tlwse practicr*. 1C
in flic company'* independent jiid^mrnt, improvement
it not evident, then the company should cake further
measures — up to and including termination of the
business relationship. This Management Prartice shniilj
be implemented in conjunction v/illi the Distribution
Code of Management 1'racticcs.
12. Customers and Other Direct Product Receivers:
Provides health, safety and environmental information in
direct product feccivirt Commensurate with jiroduu rivk,
wnrfes with lhe.Ti to foster proper use. Kindling, rccydinf,-
disposal, and tiansminal of appropriate infennaiiun ui
downxrrcam users. \t/htn s roni|Kiiiy idenrifies imprppa
practices iitvolvj.ig * product, ir will work with the
product receiver to improve those practices. If, in the
company's independent judgment, improvement it not
evident, tlien the company should take further measures
— up to and inducting rcrmiiuticn of product sale.
Jlffmifi *» GNU > &<'rf afOintait»» Afril 14 ! FX
000150
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\ UNITED STATES ENVlRpNMENTAL PROTECTION AGENCY
I . • WASHINGTON, D.C. 20460
' OCT ~ 5 1998
OFFICE OF
CIVIL RIGHTS
Dear Title .VI Implementation Advisory Committee Member,
At the July 1998 meeting, the Title VI Implementation Advisory Committee (Committee)
requested EPA's Office of General Counsel (OGC) provide information on relevant case law that
might assist you in your work. Attached is the draft case digest prepared by OGC in response to
Committee's request. As is noted in the attached transmittal memorandum, the case summaries
are provided for information and do not reflect EPA's interpretation of the holdings. I look
forward to seeing you in Tucson
Sincerely,
Ann E. Goode
Attachment
Appendix J: EPA Office of General
Counsel Summary of Other Civil Rights
Precedents 000151
Printed with VegeHMe Ol Based Inks on 100% Recycled Paper (20% Postconsumer)
-------
I r*9!^7 I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
CCT
OFFICE OF
GENERALCOUNSEL
MEMORANDUM
TO: Ann E. Goode
Director
Office of Civil Rights
FROM: Mary M
Civil Rights Law* Offio
SUBJECT: Response to EPA's Title VI Implementation Advisory Committee (Title VI
Committee) Request for Legal Research
Attached is a draft of the digest of legal research requested by EPA's Title VI Implementation
Advisory Committee (Title VI Committee) from the Office of General Counsel at the Title VI
Committee's meeting in Philadelphia in July 1998. The request for information was broad and not
limited to Title VI of the Civil Rights Act of 1964 (Title VI) or civil rights case law. Due to time
and resource constraints, and the desire to provide information on the topics requested in advance
of the October Title VI Committee meeting in Tucson, the research and digesting focused
primarily on Title VI case law, then Titles VTL, DC and other areas of civil rights law.
As you know, EPA has begun work on a comprehensive and representative Tribal consultation
process regarding the applicability of Title VI to Tribes. In an August 31, 1998 letter to
Haywood Turrentine, Chairman of EPA's National Environmental Justice Advisory Committee,
Kathy Gorospe, the Director of EPA's American Indian Environmental Office, outlines EPA's
efforts and plans for the consultation process (attached). Therefore, the digest does not focus on
the questions related to Title VI and Native Americans.
The enclosed digest is draft and provided at the request of and as a service to Title VI Committee
members to help direct them to cases that might be useful in their work. The case summaries are
provided for information only and do not reflect EPA's interpretation of the holdings. The case
digest has not been approved by the Department of Justice and should not be cited or quoted for
other purposes. The digest does not necessarily represent all case law relevant to each of the
questions asked nor concerning each of the identified areas of law. Should Title VI Committee
000152
i Printed on Recycled Paper
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-2-
members know of other cases that they believe EPA should be aware of, they should be
encouraged to contact me at (202) 260-1487.
Attachments (2)
cc: Scott Fulton
Acting General Counsel
Rafael DeLeon
Acting Associate General Counsel
Civil Rights Law Office
000153
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DRAFT 10/5/98
Response to EPA's Title VI Implementation Advisory Committee
Request for Legal Research
DISPARATE IMPACT
A. What constitutes "disparity"; how much must the difference be?
Title VI
ViUamteva v. Carere. 85 F.3d 481, 487 (10th Cir. 1996). Court rejected Plaintiffs' Title VI
disparate impact claim that the opening of a non-traditional school to address the needs of "at
risk" and minority students disparately impacted Hispanic students, on the ground that there was
no disparate effect. The experimental school's enrollment was approximately 50% Hispanic
"compared with approximately the same proportion of students" in the school district.
New York Urban Leaeue v. New York. 71 F.3d 1031 (2d Cir. 1995). The Metropolitan Transit
Authority (MTA) operates New York City's bus and subway, and commuter rail systems The
bus and subway systems cany 1.5 billion passengers per year and the rail system carries 135
minion passengers per year (the court did not break that down any further). MTA proposed to
increase bus and subway feres by 20%. Plaintiffs alleged that bus and subway riders, who were
predominantly minorities, paid a higher percentage of the cost of operating that system (i.e.,
"farebox recovery ratio"), than did commuter rail users, who were predominantly white. The
court held, in part, that the farebox recovery ratio is not a sufficient basis for a finding of disparate
impact, thereby reversing the district court's preliminary injunction. The two transit systems are
so fundamentally different in terms of operating schedules, maintenance, subsidies, etc., that the
court felt comparisons of farebox recovery ratios were not meaningful.
CMcaeo v. Lirullev. 66 F.3d 819 (7th Cir. 1995). The Older Americans Act (OAA), 42 U.S.C.
3001-3058ee, directed the federal government to distribute funds to the states in order to provide
services to "older individuals" (i.e., over 60 years of age). The State of Illinois developed a
formula to allocate its money among the local jurisdictions. That formula considered, among
other things, the number of older individuals who are members of minority groups, who live in
rural areas, and who are at least 75 years of age. The City of Chicago claimed that the latter two
factors discriminated against minorities because older individuals living in rural areas are 98%
non-minority and 13.7% of the state's older individuals are minorities, but only 10.7% of them are
over 75.
The court concluded that no disparate impact existed, affirming the district court's
summary judgment against plaintiffs on Title VI. The court found that Chicago actually received
a disproportionately large share of the OAA money because Illinois' formula provides additional
distributions for minority areas like Chicago. Moreover, even if Illinois' formula had not lead to a
favorable result for Chicago, Title VII precedent does not indicate a disparate impact here. In
Connecticut v. teal. 457 U.S. 440, 450-51 (1982), the Supreme Court found that use of a test to
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000154
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DRAFT 10/5/98
screen out candidates for promotion caused a disparate impact on minorities because it created a
"discriminatory bar to opportunities," notwithstanding the fact that a higher percentage of black
employees ultimately received promotions. In this case, Illinois' formula benefitted minorities by
including an explicit factor for minorities and it never deprived minorities of any opportunity for
benefits.
Larry P. ex rei Lucille P. v. Riles. 793 F.2d 969 (9th Cir. 1984). In the mid-1960s, the state of
California established a program for students with educational problems. Students were placed in
various parts of the program on the basis of I.Q. tests. Plaintiffs alleged that the program
discriminated against black students as evidenced by the disproportionately high percentage of
blacks in the "educable mentally retarded" (EMR) program. Students classified as EMR would
not return to the schools' mainstream program. The court agreed with plaintiffs on the basis of
the statistical data. Specifically, the court noted that black students comprised about 9% of the
state school population, but they accounted for 27% of the EMR population, and that the
likelihood of a color-blind system leading to such a result was one-in-a-million. Id, at 973.
Ultimately, the court found the state in violation of Title VI. Id. at 983.
NAACP (Georzia State Conference) v. Georgia. 775 F.2d 1403 (llth Cir. 1985). Plaintiffs, 35
black schoolchildren, allege that the use of achievement grouping in Georgia public schools was
intended to achieve or resulted in segregation. The court did not reach the district court's
analysis of disparity and instead affirmed the district court's conclusion that sufficient justification
existed. Id. at 1417. The court did, however, note, "[T]he elements of a disparate impact claim
[under Title VTj may be gleaned by reference to cases decided under Title VEL, 42 U.S.C. § 2000e
etseq." Id
Coalition of Concerned Citizens Azcrinst 1-670 v. Damian. 608 F. Supp. 110, 121 (S.D. Ohio
1984). Plaintiffs alleged that the city of Columbus, the state of Ohio, and the federal government
failed to assess the disproportionate impact on minorities caused by the extension of a highway.
The court felt that plaintiffs had established that the construction would have a disparate impact
on minorities for the following reasons: (1) the highway would be built through neighborhoods
with 50-90% minority populations; (2) nearly 75% of the people displaced by the construction
would be minorities; and (3) the disruptions and negative impacts caused by construction and
operation of the highway would fall primarily on minority neighborhoods. Id. at 127. The court,
however, ultimately found that defendants justified the location of the highway for
nondiscriminatory reasons. Id. at 127-29.
Title VH
Watson v. Ft. Worth Bank & Trust. 487 U.S. 997, 101 L. Ed. 2d 827 (1988). The Court
established the general principle that the statistical disparity must be sufficiently substantial that it
raises an inference that the allegedly discriminatory act caused the alleged detrimental effect on
members of a protected group because of their membership in that group. The Court refused to
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set a rigid mathematical formula for determining a discriminatory disparity and held that case-by
case determination of substantial significance is appropriate with consideration of all surrounding
facts and circumstances. The Court recognized that Courts of Appeals have sometimes used the
mathematical "Standard deviation" (S/D) analysis (explained in case summary ofOttaviam, infra)
as guidance in applying this general principle to specific cases. However, the Court emphasized
that neither this formula, nor any alternative formula can be determinative hi establishing a
sufficiently substantial disparity to raise an inference of discrimination and make out &prima facie
case of disparate impact based on the disparity alone.
Standard Deviation Analysis ("S/D")
Casteneda v. Partida. 430 U.S. 482,496 n. 17, 51 L. Ed. 2d 498 (1977). (Jury selection case
which courts have applied in Title VH context.) The Court recognized that for a large sample,
where the actual selection rate for the protected group is greater than 2-3 S/Ds from the expected
rate, the selection procedure is suspect. For a 11-year period, 870 Mexican-American residents
were summoned for jury duty in a Mexican-American population of at least 120,766. Statistical
disparities between white residents summoned and Mexican-American residents summoned which
ranged from 12 S/Ds to 29 S/Ds was sufficiently substantial to establish zprimafacie case of
discrimination.
Hazelwood SchoolDist. v. U.S., 433 U.S. 299, 309-311, 53 L.Ed. 768, 778-79 (1977). Court
recognized that the standard deviation analysis is useful as a method for interpreting statistical
evidence in employment discrimination cases. First, the Court examined statistics comparing the
numbers of teachers on Hazelwood's staff for two school years with the numbers of qualified
black teachers in the relevant labor market. By the end of the 1972-73 school year, 16 of 1107
staff teachers were black, and at the end of the 1973-74 school year 22 of 1231 staff teachers
were black. There were 19,000 qualified teachers in the St. Louis area's workforce, 15.4% of
whom were black. Hazelwood contended that statistics concerning the racial composition of
qualified teachers in city of St. Louis should be excluded from the relevant labor market resulting
in a market which was only 5.7% black. (The Court adopted the 5.7% figure arguendo.) In
analyzing these statistics, the Court recognized the Castanenda "greater than two or three
standard deviations" rule for statistical significance and found that differences between the
expected and actual number of black teachers on staffin the Hazelwood School district given the
percentage of qualified black teachers in the relevant labor market for 1972-73 school year of
more than 6 S/Ds and for 1973-74 school year of more than 5 S/Ds were "on their face
substantial."
Secondly, the Court examined statistics which compared the percentage of black teachers
hired of the total number of teachers hired in the two school years with the percentage of black
qualified teachers in the relevant labor market. Of 280 new teachers hired in 1972-73 school year
10 (or 3.52%) were black, and of the 123 new teachers hired in the 1973-74 school year 5 (or
4.1%) were black. Combining the statistics for the two years: of the 405 new teachers hired, 15
or (3.7%) were black. The Court held that if the 5.7% figure for the number of black teachers in
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the relevant labor market were used for these statistics (yielding results of less than 2 S/Ds for
1972-73, less than 1 S/D for 1973-74X and less than 2 S/Ds for 1972-74) this statistical evidence
would weaken the Government's other proof of discrimination. On the other hand if the 15.4%
figure was used (yielding results of more than 5 S/Ds for 1972-73, more than 3 S/D for 1973-74,
and more than 6 S/Ds for 1972-74) this statistical evidence would strengthen the Government's
other proof of discrimination. The Court remanded the case for consideration of the appropriate
comparative figures. (There is no record of the remanded case.)
Ottaviani v. State University of New York at New Paliz. 875 F.2d 365 (2d Cir. 1989), cert.
denied, 493 U.S. 1021 (1990). (Disparate treatment case relied upon by some disparate impact
cases.) The Second Circuit explained that the standard deviation method is commonly used to
calculate whether a statistical disparity raises an inference of discrimination in a disparate
treatment case. This method measures the probability that the difference between an actual result
and predicted result is random: the greater number of standard deviations between an actual and
a predicted result, the less likely that chance alone is the cause of the disparity and the more likely
that the disparity is caused by other factors.
A standard deviation of "2" (approximately a .05 probability) means that there is a 1 in 20
chance that the explanation for the difference between actual and predicted result is random and a
19 in 20 chance that the disparity was caused by other factors. A finding of 2-3 S/Ds is
approximately one in 384 chance that the result is random. An S/D of 4-5 corresponds to a
probability of 1 chance in 15,786 to 1 chance in 1,742,160. [The Court refers to M. Abramowitz
& I. Steigan, Handbook of Mathematical Functions, National Bureau of Standards, U.S. GPO,
Applied Mathematics Series No. 55 (1966) tables 26.1,26.2 for these calculations] The Court
recognized that federal courts have generally held that a showing of more than two standard
deviations allows the plaintiff to establish aprimafacie case of discriminatory treatment based on
the statistical disparity alone. Although the Court agreed that a result of 2-3 S/Ds CAN BE
highly probative of discriminatory treatment, it refused to establish any minimum threshold of
statistical significance mandating a finding that aprimafacie case has been made.
Anderson v. Douglas &Lomason Co.. Inc.. 26 F.3d 1277 (5th Cir. 1994), cert, denied, 513 U.S.
1149 (1995). Court explained that the standard deviation formula used in Hazehvood School
District v. United States was as follows:
NUMBER OF STANDARD DEVIATIONS= O-NP/ /NP (1-P)
O= Number of blacks who received a promotion
N=Number of workers who received a promotion
P=Probability of a black being promoted from the relevant population
Wcdsome v. Port Authority of New York and New Jersey. 948 F.2d 1370 (2d Cir. 1991). Court
recognized the rule that aprimafacie case of disparate impact can be shown either by (1)
showing a gross statistical disparity or (2) statistically significant disparity coupled by other
evidence of discrimination (does not specify what is a "gross" disparity as opposed to a
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"significant" disparity- and does not describe what types of other evidence is acceptable). Court
stated "Statistical evidence may be probative where it reveals a disparity so great that it cannot be
accounted for by chance." Generally, a finding of 2-3 S/Ds is highly probative of discrimination
(citing Ottaviani), but there is no minimum threshold which mandates a finding that Title VII is
violated. Other considerations are necessary: (1) sample size must be considered (the larger the
sample size, the more reliable the statistical disparity is in showing discrimination because when a
sample is relatively small, a difference in the status of one or two members of the protected class
can determine whether the result is statistically significant), and (2) whether the groups analyzed
are the proper groups. In this case, the court found that a standard deviation of 2.68 was
statistically significant but did NOT establish a sufficiently substantial disparity because the
statistics were of a limited magnitude: if two more black candidates had passed the examination at
issue, the statistical result would no longer be significant. Six hundred seventeen persons took the
test, 508 of whom were white and 65 of whom were black. Of the 539 persons who passed the
test, 455 were white and 50 were black. The white passage rate was 89.57% and the black
passage rate was 78.13% Thus the black pass rate was 87.23% of the white pass rate. (The court
also used the 80% EEOC rule described on p. 12, infra, to find no inference of discrimination.)
Emanuelv. Marsh. 897 F.2d 1435, 1442 (8th Cir. 1990), reh'gdenied, 1990 U. S. App. LEXIS
7869 (8th Cir. 1990). Employer used receipt of performance awards as one factor in promotions.
Nine hundred nineteen performance awards were granted. Black employees received 22 or
18.2% of the performance awards granted. However, blacks employees constituted 30.5% of the
workforce or 1022 of 4187 total employees, and thus the expected number of awards to be
granted to black employees was 55. The actual number of awards granted to black employees
differed from the expected number by 4.9 S/Ds. The court found that this disparity was
statistically significant and, in light of evidence of past discrimination against the plaintiff, made
out zprima facie case that use of the performance awards had a disparate impact.
Bridgeport Guardians. Inc v. City of Bridgeport. 933 F.2d 1140, 1146 (2d Cir. 1991), cert.
denied, 502 U.S. 924 (1991). The Second Circuit stated: "|Tjf a given pattern can be expected to
occur at least five times in 100 (i.e., once in 20 times [or approximately 2 S/Ds]) it can reasonably
be attributed to chance; a pattern of test results that would be expected to occur less often is
considered to be statistically significant." Of the 170 persons who took the test, 115 were white,
28 were Hispanic, and 27 were black. Of the 99 persons who passed the test, 78 were white, 13
were Hispanic and 8 were black. The Second Circuit accepted the results of a "Mann-Whitney
analysis" (statistical analysis used for small samples which is not explained in the case and which is
not specifically cited by more that a few court decisions) of this data which determined that the
likelihood of the actual black versus white test results occurring by chance was 1 in 10,000 and
the actual Hispanic versus white test results occurring by chance was 2 in 10,000. The Second
Circuit held that both results were statistically significant and demonstrate aprima facie case of
disparate impact.
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Peishtal v. Metropolitan Dade County. 26 F.3d 1545, 1556 (11th Cir. 1994). Reverse-
discrimination case. Eighty-six firemen were hired. Court held that where the difference between
the expected and actual percentage of hiring of Hispanics in fire department, given the percentage
of age-eligible population was 17.6 S/Ds (the result would occur once in one billion cases by
chance), the statistics inferred race-based selection. (Population sample size unavailable.)
Rivera v. City of Wichita Falls. 665 F.2d 531, 536 (5th Cir. 1982). Court held that a disparity of 9
S/Ds between the actual and expected passage rates of Mexican-American test-takers was
sufficient to raise a compelling inference that language test had a disparate impact on Mexican-
Americans since a result of more than 2-3 S/Ds is generally sufficient. Of 422 test takers, 35 were
Mexican American and 387 were white. Of the 35 persons who failed, 14 were Mexican
American and 21 were white.
Rendon v. A T&T Technologies. 883 F.2d 388 (5th Cir. 1989). The court examined 122
promotions. Court held that a disparity of 2.9 S/Ds between the expected and actual number of
promotions of black and Hispanic employees was sufficient evidence of discrimination. Court
rejected the Defendant's argument that there must be at least 3 S/D before an inference of
discrimination to arise.
Ratios—And Other Common Sense Judgments of Sufficient
Substantiality
(Most of the ratios included below were calculated by Schlei and Grossman (designated by
"S&G") in the treatise, Employment Discrimination Law, Second Ed at p. 99 (1976). This
treatise is repeatedly cited by court opinions and law review articles. The ratios were computed
according to the following formula:
S1/S2 = Selection Ratios where X/NP= S1 and Y/P= S2
X= Total number of non-protected persons selected
NP= Total number of non-protected persons in the pool
S1 = Percentage of non-protected persons selected
Y= Total number of protected persons selected
P= Total number of protected persons in the pool
S2= Percentage of protected persons selected
Dothardv. Rawlinson. 433 U.S. 321 (1977). Alabama's minimum height and weight
requirements for hire of correctional counselors had an actionable disparate impact on women
where: (a) the height requirement excluded 33.29% of the women in the U.S., but only excluded
1.28% of the men in the U.S.; (b) the weight requirement excluded 22.29% of women and only
2.35% of men; and (c) only 58.87% of the women in the U.S. met both the height and the weight
requirements while 99% of the males in the U.S. met both requirements.
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Gr/ggy v. Duke Power Co.. 401 U.S. 425 (1971). Court addressed employer's requirement of
high school degree and passage of general intelligence test as conditions of hire and transfer.
Court held that where 32% of white males in state had completed high school while only 12% of
black males in state had completed high school, the high school diploma requirement had a
sufficiently substantial disparate impact on blacks. Court also 'held that where 58% of whites
passed the general intelligence test while only 6% of blacks passed the test, the requirement of a
passing score had a sufficiently substantial disparate impact on blacks. (Sample size is not
available.)
Chance v. Board of Examiners of the City of New York. 458 F.2d 1167, 1171-73 (2d Cir. 1972).
From a survey of 6000 applicants who took a supervisory school licensing test, where the test
passage rate of non-protected group was 1.5 times the passage rate of the protected group, a
sufficiently substantial disparity was shown. S&G noted that this may be the lowest disparity held
to constitute the required "sufficiently substantiaFdisparity for zprima facie disparate impact
case. See Employment Discrimination Law, Second Ed. at p. 99.
Fraiserv. Garrison ISP. 980 F.2d 1514 (5th Cir. 1993). Court held that a difference of 4.5% in
the teacher competency passage rates of blacks vs. whites was not a sufficiently substantial
disparity to make out aprimafacie case. (Sample and pool sizes are unavailable.)
Bunch v. Bullard. 795 F.2d 384, 395 (5th Cir. 1986). Court found sufficiently substantial
disparity where 12 of 14 white test-takers passed test while only 3 of 13 black test-takers passed
the test. No other evidence of discrimination was presented. The court explained that although
the S/D analysis is often helpful as a measure of disparate impact, it is not the only measure,
especially where, as in this case, sample sizes are too small to subject to S/D analysis.
Bushev v. New York State Civil Service Commission, 733 F.2d 220, 225-26 (2d Cir. 1984), cert.
denied, 469 U.S. 1117 (1985). Court held that where a test passage rate of non-minority group
was twice the passage rate of the minority group, the required "sufficiently substantiaTdisparity
was shown. Of the 275 total test takers, 243 were non-minority and 32 were minority. Of the
127 test takers who passed, 119 were non-minority and 8 were minority.
Craig v. County of Los Anzeles. 626 F.2d 659, 661-62 (9th Cir. 1981), cert, denied, 450 U.S. 919
(1981). Court found that the following statistics constituted a sufficiently substantial disparity to
make out aprimafacie case: For one hiring test, 45% of the Mexican-Americans who took the
test failed while only 23% of whites failed. For a second test, 33% of Mexican-Americans failed
while only 13% of whites failed. (Sample and pool sizes are unavailable.)
United States v. County of Fairfax. 629 F.2d 932 (4th Cir. 1980), cert, denied, 449 U.S. 1078
(1981). Court found a sufficiently substantial disparity where passage ratios (all S&G) for several
tests were:
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1.77:1- Of 624 test takers, 422 of 544 whites passed (77.6%), and 35 of 80 blacks passed
(43.8%)
1.84:1-Of 174 test takers, 153 of 166 whites passed (92.2%), and 4 of 8 blacks passed (50%)
1.28:l-Of 460 test takers, 264 of 325 whites passed (81.2%), and 85 of 135 blacks passed (63 %)
1.67:1-Of 1274 test takers, 300 of 324 whites passed (92.6%), and 525 of 950 blacks passed
(55.3%)
7.49:1-Of 360 test takers, 184 of 346 whites passed (53.2%), and 1 of 14 blacks passed (7.1%)
However, the court remanded for consideration of the Defendant's "bottom line defense." [It is
unclear whether the court would have considered the 1.28:1 ratio to be sufficiently substantial if it
were considered separately from the other greater disparities.]
Moore v. Southwestern Bell Tel Co.. 593 F.2d 607, 608, n.l, 2 (5th Or. 1979). A test passage
rate differential of 7.1% (S&G's ratio of 1.08:1) was not sufficiently substantial disparity. Of the
746 persons taking the test, 469 were white and 277 were black. Of the 701 persons who passed
the test, 453 (or 96.6%) were white and 248(or 89.5%) were black.
Firefighters Institute for Racial Equalityv. City of St. Louis. 549 F.2d 506, 510 n.4 (8th Cir.
1977), cert, denied, 434 U.S. 819 (1977). Firefighter exam passage ratio (S&G) of 1.71:1 was
sufficiently substantial disparity. Twenty-five and one half percent of blacks taking test passed,
and 43.65% of whites taking test passed. (Sample size is unavailable.)
United States v. City of Chicago. 549 F.2d 415,429 (1977), cert, denied, 434 U.S. 875 (1977).
Potential promotion ratios (S&G) of 2:1 and3.17:l were sufficiently substantial disparities. Of
6555 persons who took patrolman's exam, 1298 were black or Hispanic and 5257 were not. Of
the 1918 patrolman who passed the test only 400 had a realistic chance of promotion, 29 of whom
were black or Hispanic (2.23% of the 1298 who passed) and 371 of whom were white. Only
1.77% of the blacks who passed the test had a realistic chance of promotion.
Watfdns v. Scott Paper Co.. 530F.2d 1159, 1186 (1976), cert denied, 429 U.S. 861 (1976).
Hiring test passage ratio (S&G) of 1.37:1 was not sufficiently substantial disparity. Of the 68 test
takers, 7 were black and 61 were white. Of the 26 persons who passed, 2 were black (or 28.6%
of the blacks taking the test) while 24 were white (39.6% of the whites taking the test). Court
also stated that even if disparity was larger, the sample size was too small for .the statistics to have
meaning.
Bridgeport Guardians v. Bridgeport Civil Service Commission. 482 F.2d 1333, 1335 (2d Cir.
1975). Court examined policeman's written exam passage rates. Of 644 exam takers, 568
(88.2%) were white and 76 (11.8%) were black or Hispanic. Of the 342 test takers who passed,
329 (58%) of the white test takers passed while only 13 (17%) of the black and Hispanic test
takers passed. Thus the passing rate for white test takers was 3.5 times the passing rate for black
and Hispanic test takers. Court held that this disparity was sufficiently substantial.
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Smith v. Trovan, 520 F.2d 492, 497-98 (6th Or. 1975), cert, denied, 426 U.S. 934 (1976).
Hiring ratio (S&G) of 1.14:1 was not sufficiently substantial disparity. Thirty-three percent of the
applications received were from blacks and 29% of hirees (7 of 24) were black. (Total number of
applicants is not available.)
Douglas v.Hampton, 512 F.2d 976, 982 (D.C. Cir. 1975). Test passage ratios (S&G) of 4.85:1
and 5.1:1 were both sufficiently substantial disparities. In colleges which were 95% black, the
test passage rate was 12.4% as compared to a 60.2% passage rate for schools which were 95%
white. In colleges which were 99% black, the test passage rate was 11.5% as compared to a
57.8% passage rate for schools which were 99% white. Sample size: 50,000 students.
Yuhas v. Libbv Owens Ford Co. 562 F.2d 496 (7th Cir. 1972), cert, denied, 435 U.S. 934
(1978). Court found that no-spouse hire rule caused sufficiently substantial disparity where 71 of
74 applicants who were disqualified by the rule were female.
Castro v. Beecher, 459 F.2d 725, 735 (1st Cir 1972). Of 80 black applicants who took policeman
civil service exam, only 20 (or 25%) passed. Only 10% of the Spanish-surnamed applicants
passed, and 65% of all other applicants passed. Court held that this result showed a sufficiently
substantial disparity.
"Inexorable Zero"
International Brotherhood of Teamsters v. US. 431 U.S. 324, 342 n.23 (1977). Evidence that no
member of a protected class were hired by an employer in a population containing a sizable
number of the members of the protected class is highly probative of discrimination. This
statistical result is known as the "inexorable zero."
NAACP v. Town of East Haven. 70 F.3d 219 (2d Cir. 1995). Second Circuit found that where a
town with sizable black population had never hired a black full time employee, a high probability
of discrimination existed.
EEOC v. Steamship Clerks Union Local 1066. 48 F.3d 594, 605 (1st Cir. 1995), cert, denied,
516 U.S. 814 (1995). Union policy, which required that new applicants be sponsored by an
existing union member sponsor new applicants, caused sufficiently substantial disparate impact
where no black or Hispanics had been granted union membership while the local labor force was
21% black and 6% Hispanic.
EEOC v.O&G Sprinz Wine Farms. 38 F.3d 872, 878 (7th Cir. 1994), cert denied, 131 L. Ed.
2d 148 (1994) Court held that the defendant could not overcome the inference of discrimination
established by evidence showing that it had no black employees despite the fact that applicant
pool was 20% black.
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Newark Branch ofNAACP v. Harrison. 940 F.2d 792 (3d Cir.1991). Where police department
had no black employees and traditionally hired from a geographic area containing 214,747 black
residents, the Eighth Circuit found that a discrimination was at least suggested.
Carter v. Gallagher. 452 F.2d 1167, 1171 (8th Cir. 1971), cert, denied, 406 U.S. 950 (1972).
Where no member of the protected groups were employed by a fire department having 535
employees, adverse impact was found.
29 U.S.C. 1607 (4D) Standard
Some cases use the EEOC Uniform Guidelines on Employment Selection Procedures as a
"rule of thumb" in determining whether a disparity is significantly substantial to raise an inference
of discrimination. See Watson v. Ft Worth Bank & Trust. 487 U.S. 997, 995 n.3 (1988), and
authority cited therein. The Guidelines provide that discrimination will generally be inferred
where, assuming a sufficiently large sample, the members of a protected group are selected at less
than 4/5 or 80% of the rate of selection of members of the group with the highest selection rate.
(EEOC 80% or 4/5 rule.) Conversely, discrimination will generally not be inferred where the
members of a protected group are selected at more than 4/5 or 80%, although smaller differentials
may infer adverse impact where they are significant in statistical and practical terms. See
Waisome. 948 F.2d 1370, 1376 (2d Cir. 1991) (evidence that pass rate of black candidates was
more than 4/5 of the pass rate of white candidates is "highly persuasive proof that the adverse
impact was not substantial and did not support finding of disparate impact). This 80% formula
has been criticized on technical grounds, as noted in Watson (487 U.S. at 997, 995 n.3 and
authority cited therein).
Other Considerations
x
Bazemore v. Friday. 478 U.S. 385, 400 n.9 (1986). The Court found that to be probative of
discrimination, a plaintiffs statistics need not take into account all of the measurable variables, but
only those major factors that are potentially responsible for any disparity.
Mozee v. American Commercial Marine Service Co.. 940F.2d 1036, 1037 (7th Cir. 1991), cert.
denied, 506 U.S. 872 (1992). Court found that a hiring rate of whites that was six times the
hiring rate of blacks was statistically significant. But the court noted that even where the disparity
is statistically significant, the court must take into account variables that one might expect would
account for the disparity.
Coatesv. Johnson & Johnson. 756 F.2d 524, 532-33 (7th Cir. 1985). The court found that to be.
probative of-discrimination, a plaintiffs statistics must account for the most common non-
discriminatory explanations for any disparity.
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Thomas v. Metroflieht. 814 F.2d 1506, 1509 (10th Cir. 1987). Where "no-spouse" hiring rule
was only enforced in two instances, and in both instances a female was excluded from hiring
process, this statistical evidence alone was insufficient to establish zprima facie case of disparate
impact because "a sample of 2 is too small to make even 100% impact rate significant."
Harper v. TWA. 525 F.2d 409 (8th Cir. 1975). Evidence that 4 of 5 applicants rejected because
of no-spouse rule were female was inadequate without other evidence to show disparate impact of
rule on females because sample size was too small.
Robinson v>. City of Dallas. 514 F.2d 1271, 1273 (5th Cir. 1975). Court held that sample size of
7 was too small to yield a significant statistical disparity.
Morita v. Southern California Permanente Medical Group. 541 F.2d 217,220 (9th Cir. 1976),
cert denied, 429 U.S. 1050 (1977)^ Court held that sample size of 8 persons who received
promotions was too small to yield a significant statistical disparity in promotions even where only
one of the eight was black.
Drake v. City of Ft. Collins. 927 F.2d 1156, 1161 (10th Cir. 1991). Court held that sample of
one is too small to yield a significant statistical disparity.
Title vm
Edwards v. Johnston Cntv. Health Pep't. 885 F.2d 1215 (4th Cir. 1989). The Johnston County
Health Department (JCHD) issued permits to operate housing facilities for migrant farm workers,
90% of whom are minorities in Johnston County (the number of workers in the county is not
mentioned). Owners of two farms received permits from JCHD, but their facilities failed to satisfy
JCHD's standards. Plaintiffs, six black migrant farm workers, alleged violations of Title VJH, the
Fair Housing Act of 1968, by JCHD for issuing permits to substandard facilities. To determine
whether minorities suffered a greater adverse impact, the court looked at "whether the policy in
question had a disproportionate impact on the minorities in the total group to which the policy
was applied." Id at 1223 (citation omitted). Plaintiffs had to prove that JCHD's actions affected
minorities to a greater degree than white. Id For example, if JCHD approved substandard
housing for minorities,, but not for whites, the court would have found their argument compelling.
Id at 1224. Plaintiffs, however, were only able to show a "statistical imbalance" (court did not
define that term), which the court found to be inadequate and, therefore, they upheld the district
court's dismissal of plaintiffs' claims. Id at 1223. The court's opinion did not delve into
statistics other than to note that more minorities than whites would be affected by the living
conditions simply because 90% of migrant farm workers were minorities.
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Title IX
Cohen v. Brawn University. 991 F.2d 888, 894 (1st Cir. 1993). Court held that, in athletic
discrimination suits, a Title IX violation may not be found solely on the basis of a disparity
between the gender composition of the institution's student body on the one hand and the gender
composition of those students actively participating in athletics on the other. Statistical evidence
must be accompanied by further evidence of discrimination such as unmet need amongst the
members of the disadvantaged gender. However, the court held that there is no Title EX disparity
when an institution distributes athletic opportunities in numbers which are "substantially
proportionate" to the gender composition of the student body— substantial proportionality
provides a "safe harbor" for schools. In this case, the court found that an 11.6% disparity
(females had 36.6% of the athletic opportunities, but comprised 48% of the student body) "did
not even approach" the substantially proportionate threshold. No sample size is given for the
student body. Before the University cut four varsity teams (the act challenged in the case), there
were 328 females participating in varsity sports and 566 males participating in varsity sports at the
University. The court did not specify the number of male and female students who participated in
varsity sports after the four teams were cut, but found that the relative percentages of
participation did not change significantly.
Pederson v. LSU. 912 F. Supp. 892 (M.D. La. 1996). Court expressly disagreed with Cohen in
holding that there is no "safe harbor" for schools which distributes athletic opportunities in
"substantially proportionality" to the gender composition of the student body. Even where a
school's athletic program is precisely proportionate, it could still violate Title IX if h disparately
accommodates the desire and abilities for athletic opportunity between the two genders. In this
case, 51% of student body was male while 71% of LSU's athletic participants were male. This
evidence in combination with evidence showing that LSU was not accommodating at least those
females who wanted to play collegiate softball, suggested that LSU had violated Title IX. (Sample
and pool sizes are unavailable.)
r
Beaslev v. Alabama State University. 966 F. Supp. 1117, 1125 (M.D. Ala. 1997). Court held
that plaintiffs allegation of a 32% disparity between numbers of female students who actively
participated in athletics and numbers of females enrolled was sufficient to state a claim under Title
DC. (Sample and pool sizes are not available.)
Favia v. Indiana Univ. of Pa.. 812 F. Supp. 578, 585 (W.D. Pa. 1993). Court noted that where
37.77% of a university's intercollegiate athletes were female and the university's student body
was 55.61% female, the university did not provide substantially proportionate athletic
opportunities. (Sample and pool sizes are not available.)
Roberts v. Colorado State University. 814 F. Supp. 1507 (D. Colo. 1993), off'd in part and
reversed on other grounds, 998 F.2d 824 (10th Cir. 1993), cert denied, 510 U.S. 1004, 126 L.
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Ed. 470 (1993). Court held that a 14. 1% average disparity (over a 12-year period) between
numbers of female students who actively participated in athletics and numbers of females enrolled
was not substantially proportionate. Court also held that three-year disparities of 7.5%, 12.5%
and 12.7% demonstrated that athletic opportunities were not substantially proportionate, and that
a one-year disparity of 10.6% was not substantially proportionate. (Sample and pool sizes are not
available.)
Cookv. Colgate University. 802 F. Supp. 737 (N.D.N.Y. 1992), vacated on other grounds, 992
F.2d 17 (2d Cir. 1992). Court held that University which spent fifty times the financial support on
the men's varsity hockey team that it spent on the women's club hockey team and afforded male
athletes other amenities not afforded to female athletes, did not provide equal athletic
opportunities under Title EX. Total annual expenditure on male hockey players was $238,561,
and total annual expenditure on female hockey players was $4600. Total enrollment was 2690:
1450 or 52% male and 1240 or 47% female. '
Sharif Bv Salahuddin v. New York State Education Department. 709 F. Supp. 345 (S.D.N.Y.
1989). Court found a disparate impact Title DC violation where using SAT scores as sole criteria
in awarding scholarships yielded an actual number of female receiving scholarships which differed
from the expected number by 15.8 S/Ds for Empire State scholarship and 31.7 S/Ds for Regents
scholarship. Court recognized that the level of statistical significance for a disparity was .05
probability (approximately 2 S/Ds). Twenty-five thousand Regent scholarships were awarded in
the year studied, and 1000 Empire State Scholarships were awarded. While males were 47% of
the scholarship competitors, males received 57% of the Empire State Scholarships and 72% of the
Regents Scholarships. (Total number of competitors not given.)
Hefferv. Temple University. 678 F. Supp. 517, 530 (E.D. Pa. 1987). Court held that a genuine
issue of fiict existed as to whether university that spent $2100 more per male athlete than per
female athlete and had a student body which was 50% female while only 1/3 of its athletes were
female violated Title DC by not providing substantially proportionate athletic opportunities.
(Sample and pool sizes are unavailable.)
Other Analogous Areas of Federal Cwl Rights Law
Bean v. Southwestern Waste Management Corp.. 482 F. Supp. 673 (S.D. Tex. 1979). The Texas
Department of Health (TDH) approved a permit for Southwestern Waste Management Corp. to
operate a landfill in Houston and neighboring Harris County. The target area, an area roughly
conforming to the local school district and City Council district, was 70% minority. Plaintiffs
alleged TDK's decision was motivated by racial discrimination in violation of 42 U.S.C. § 1983
and sought a preliminary injunction. In order to prevail, the court noted that plaintiffs had to
show that TDK's decision "is attributable to an intent to discriminate on the basis of race." Id at
677. That can be proven by statistical data or supplemental proof. Id The court concluded that
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plaintiffs had not provided sufficient evidence of discriminatory intent.
First, plaintiffs tried to prove that Southwest's permit was part of a pattern or practice of
discrimination by TDH. Supporting data, however, showed that 59% of the sites operating in
Houston with TDH permits were located in census tracts with 25% or less minority population.
Moreover, in the target area, the only other TDH facility was located in a census tract with less
than 10% minorities at the time it opened. Id at 677-78.
Second, plaintiffs sought to show that TDH's approval constituted discrimination in the
context of existing landfills and the history of Southwest's application. Plaintiffs first noted that
both of Houston's type I municipal landfills were in the target area. The court, however, felt that
the location of two facilities was not statistically significant and that, in any case, the other facility
was in a census tract with only 18% minorities. Plaintiffs then indicated that the target area
contained 15% of Houston's solid waste sites, but comprised only 7% of hs population. The
court pointed out that half of those solid waste sites were in census tracts with more than 70%
Anglo population. Finally, plaintiffs showed that 68% of Houston's solid waste sites were located
in eastern Houston, which is where 62% of the minority population resides. The court looked at
the local surroundings of each facility and found that 42% were in minority tracts (i.e., more than
39% minorities) and 58% were in Anglo tracts (i-e., more than 61% Anglos). Id^ at 678-80. In
the end, the court concluded that the issuance of Southwest's permit was "both unfortunate and
insensitive," but that plaintiffs had not established a substantial likelihood of proving intentional
racial discrimination. Id. at 680.
B. What constitutes relevant "impact"; must it be kind of impact that is the
primary focus of the permitting agency or can it be any impact that would be
proximately caused by the facility's operation (Le., can it extend to social and
economic concerns that result from the permitting facility, but are not the
authorized basis of the permitting authority's decision whether to grant a permit for
the activity)?
Title VI
Allen v. Wrizht. 468 U.S. 737 (1984). Plaintiff alleged that the ERS's failure to adopt sufficient
standards and guidelines to enforce a tax code provision that denied tax-exempt status to racially
discriminatory private schools violated Title VI. The Court stated that a diminished ability of
minority students to receive an education in a racially integrated school because of the tax
exemptions granted to schools that discriminate is a legally cognizable injury while finding that the
injury in this case was not "fairly traceable" to the challenged government's conduct. Moreover,
the Court commented that stigma caused by racial discrimination "is one of the most serious
consequences of discriminatory government action" and is also a legally cognizable injury.
Razor v. Muttis. 85 F.3d 556 (11th Cir. 1996). The County Board of Laurens County, Georgia
voted to construct a new landfill in a "mixed racial neighborhood" by a vote of 3-2, in which the
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only black member of the Board voted against the she. A local community association sued the
county and state alleging the facility would have a discriminatory impact under Title VI by
harming the black residents' property values, health, and welfare. The court upheld the district
court's summary judgment for defendants and concluded that plaintiffs claim against the county
was time-barred, idl at 562-63, and that plaintiffs failed to produce any evidence of intentional
discriminatory conduct by the state. Id. at 564-65.
Grimes ex rel. Grimes v. Cavazos 786 F. Supp. 1184 (S.D.N.Y. 1992). Plaintiffs, students of the
New York City school system, alleged that the City curriculum favored European culture, thereby
implying that African-Americans are inferior, which lead to a variety of social problems such as
high crime and dropout rates among African-American youth. Plaintiffs claimed the curriculum
violated Title VI. The court noted that an action that "singles out and stigmatizes plaintiffs on
account of their race" is sufficient to constitute injury for standing. Id at 1186. The court,
however, dismissed the claim because plaintiffs failed to assert intentional discrimination as
required under the statute.
Later, in Grimes ex rel. Grimes v. SoboL 832 F. Supp. 704 (S.D.N.Y. 1993), afTd.
Grimes ex rel. Grimes v. SoboL 37 F.3d 857 (2d Cir. 1994), plaintiffs amended their earlier
complaint to allege that defendant violated DOEd's Title VI regulations. A violation of the
regulations occurs when the "criteria or methods of administration" have the effect of
discriminating on the basis of race. The court held that the regulations do not encompass
cunicular content, based on DOEd's conclusion that its own Title VI andTX regulations did not
apply to curriculums.
Villamieva v. Carere. 85 F.3d 481,487 (10th Cir. 1996). Court rejected plaintiffs' claim that the
closing of two schools and the transferring of the students to various other schools resulted in a
disparate impact on Hispanic students. The alleged impact was the deprivation of the high quality
education formerly provided by the closed schools and the subjection of the relocated students to
overcrowded classrooms and poorer quality education of the transferee schools. The court
affirmed the district court's finding, as not clearly erroneous, that there was no adverse effect on
the transferred students since (1) the transferee schools had facilities comparable to the closed
schools, (2) there was no evidence that the transferee schools would be overcrowded, (3) the
transferred students who had participated in a special educational program while at the closed
could continue to participate at the tranferee school, and (4) that the closed schools and the
transferee schools had similarly high percentages of at-risk and minority students.
Gomez v. Illinois State Bd. ofEduc.. 811 F.2d 1030 (7th Cir. 1987). Court reversed district
court grant of 12(b)(6) motion on the grounds that, inter alia, a private plaintiff had stated a
viable disparate impact under the Title VI regulations. The impact alleged was the denial of
transitional bilingual educational services caused by the Board of Education's failure to provide
proper guidelines for identifying students with limited English proficiency.
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Goshen RoadEnvtl. Action v. 'U.S. Dey'tofAzric.. 891 F. Supp. 1126 (E.D.N.C. 1995). The
city of Pollocksville constructed a water treatment facility with loans and grants from the Farmers
Housing Administration by condemning land belonging mainly to low to moderate income
African-Americans. Plaintiffs, who reside adjacent to Pollocksville, alleged that the site was
selected for discriminatory reasons. The plaintiffs contend that proximity of the facility to the
plaintiffs' homes (less than 500 feet) posed "environmental concerns of possible leaks and other
damages." Icl at 1128. The court never reached the merits of this case, but instead, asked for
additional briefs on a variety of issues. The case was ultimately affirmed without an opinion.
Goshen Road Envtl. Action Team v. U.S. Dep'tofAzric.. 103 F.3d 117 (4th Cir. 1996).
Tide VII (Terms and Conditions of Employment)
Disparate Impact Cases
Garcia v. Spun Steak Co.. 998 F.2d 1480, 1484 (9th Cir. 1993), reh'gen bane denied, 13 F.3d
296 (1994), cert, denied, 512 U.S. 1228 (1994). Ninth Circuit held that a policy must disparately
impact members of a protected group with respect to either (1) their opportunities for hiring and
promotion or (2) a term, condition, or privilege of employment in order to violate Title VH— a
bare assertion that the policy has harmed members of a protected group is not sufficient even if it
disproportionately harms members of the protected group. The plaintiff must prove (a) that the
policy has adverse effects, (b) that the impact of the policy is on a term, condition or privilege of
employment, (c) that the adverse effects are significant, and (d) that the employee population in
general is not affected by the policy.
In this case, the court held that being able to converse with co-workers at work was a
privilege of employment and that a English-only rule could have an adverse impact prohibited by
Title VIE for employees who cannot speak English, but not on bilingual employees. The court
also recognized that work environment is a condition of employment, and held that where a policy
disparately causes members of the protected group to feel "inferior, isolated, and intimidated"
based on their protected characteristic to such a degree that the work environment becomes
infused with discrimination, the policy adversely impacts a condition of employment and is
actionable under Title Vn. However, in this case, the plaintiffs had not shown that the English-
only rule caused feelings of severe inferiority, isolation, or intimidation among members of the
protected group.
Sherr v. Woodland School Comm 'n Council Dist. No. 50. 867 F.2d 974, 983 (7th Cir. 1988).
Court held plaintiff could make out aprima facie case of disparate impact based on the maternity
leave policy of the employer since leave is a term, condition, or privilege of employment.
Wambheim v. J.C. Penney. Inc.. 705 F.2d 1492, 1494, (9th Cir. 1983), cert, denied, 467 U.S.
1255 (1984). Court held that employer's policy of providing medical care coverage to the
spouses of employees only if the employee was a head of household (the employee earns more
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than 50% of the combined family income) disparately affected female employees (far fewer female
employees qualified as a head of household than did male employees) and was actionable under
Title YE.
Disparate Treatment Cases
What is an Actionable Adverse Effect
[A showing of an adverse effect caused by intentional discrimination is one element of a disparate
treatment case. The definition of "adverse effect" (as described in the following disparate
treatment cases) is useful in disparate impact cases because it is this same adverse effect which
may be addressed by the disparate impact theory if caused by a facially neutral policy, and if
disparately borne by a protected group.]
Meritor Savings Bank v. Vinson. 477 U.S. 57, 67 (1985). Court held that in order for sexual
harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of
the victim's employment and create an abusive working environment.
Lederberger v. Staneler. 122 F.3d 1142 (8th Cir. 1997). Court held that in order to constitute an
actionable adverse employment action, the action must have a material (as opposed to a.
tangential) adverse impact on a term, condition, or privilege of employment. Here, employer's
action of reassigning employee's staff, which allegedly caused employee a loss of status and
prestige, did not effect a material change in the terms or conditions of her employment.
Rabinovitz v. Pena. 89 F.3d 482, 488 (7th Cir. 1996). The court held that adverse employment
action must materially affect terms or conditions of employment in order to be actionable. The
action must be more disruptive than causing inconvenience or alteration of job responsibilities.
The court gives the following examples of actionable adverse employment actions: termination,
demotion accompanied by decrease in pay, given less distinguished title, material loss of benefits^
or significantly diminished job responsibilities. Here, decrease in job performance rating from
"exceptional" to "fully successful" where worst consequence thereof was to foreclose employee
from the opportunity to receive a discretionary $600 bonus was not actionable adverse
employment action. Court also found that not permitting plaintiff to start work early and sending
plaintiff away when the EEOC investigator visited the employer were not actionable adverse
employment actions.
Jefferies v. State of Kansas. 1998 U.S. App. Lexis 12952, 77 FEP Cases 28. Court holds that
10th Circuit does not have the "materiality" requirement, and instead takes a case-by-case
approach to determining whether a given employment action is adverse.
Savers v. Salt Jake County. \ F.3d 1122, 1128 (10th Cir. 1993). Court found that reassignment
of plaintiff against her wishes was an adverse employment action. Court did not employ a
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"materiality" requirement.
Berry v. Stevenson Chevrolet. 74 F.3d 980, 986-87 (10th Cir. 1996). Court held that employer's
reporting of plaintiff as suspected of a crime causing employee humiliation was an adverse
employment action actionable under Title VII's retaliation provision.
Greaser v. State of Missouri. 145 F.3d 979 (8th Cir. 1998). Court found that threatening and
sarcastic comments made by director of corrections center to the plaintiff was not actionable
adverse employment action since the conduct did not have a material impact on a term, condition,
or privilege of employment.
Harhtonv. McDonald Douslas Corp.. 37 F.3d 379, 382 (8th Cir. 1994). The court held that
reassignment to a different and more stressful position did not constitute actionable adverse
employment, action.
Seelv v. Runvon. 966 F. Supp. 1060, 1064 (D. Utah 1997). The court held that where plaintiff
could not show that the alleged actions of her employer, which made her feel threatened,
embarrassed, and humiliated, effected a material change in the terms or conditions of her
employment, she could not make out a Title VII case. Actions that have a tangential effect on
employment do not rise to the level of ultimate employment actions that are actionable under Title
vn.
Flaherty v. Gas Research Inst.. 31 F.3d 451, 457 (7th Cir. 1994). Court held that employer's
action of changing employee's title thereby causing embarrassment to the employee was not
actionable adverse employment action since pay and benefits remained the same.
Rozers v. EEOC. 454 F.2d 234, 238 (5th Cir. 1971), cert, denied406 U.S. 95 (1972). Fifth
Circuit held that Title VII's protections extend beyond the economic aspects of employment to
the full range of the expansively defined "terms, conditions or privileges of employment" including
work environment. The court held that employer's practice of providing discriminatory service to
Hispanic customers which, in turn, created a hostile and offensive work environment for Hispanic
employees was actionable under Title VH.
Impact Must Be Caused by a Specific Employment Policy/Practice
Spaulding v. University of Washington. 740 F.2d 686 (9th Cir. 1984), cert, denied, 469 U.S.
1036 (1984), overruledon other grounds as noted in Beard v. Whitlev County REMC. 840 F.2d
405 (7th Cir. 1988). Court notes, in a Title YE case, that the disparate impact model "was
developed as a form of pretext analysis to handle specific employment practices not obviously job
related...." The court explains that the disparate impact model was meant to be applied where a
clearly delineated employment policy has been adopted by an employer that has the discretion not
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to adopt the policy or to adopt alternatives to the policy. The court holds that the disparate
impact model is not suited for a "wide ranging attack on the cumulative effects of a company's
employment practices" because where the plaintiff is not challenging a discreet policy instituted
via an exercise of independent business judgment, the disparate impact analysis is too vague to be
applied and there is a substantial risk that the employer will be held liable for disparities which it
has not caused. For example, in the instant case, the plaintiff challenged the employer's use of
competitive market prices to set wages. The court found that this was not a discrete policy
instituted by the employer exercising independent business judgment, and thus the employer
should not be liable for any disparity caused.
This case has been cited by the State of Michigan's response to the Select Steel complaint
as support for its claim that the disparate impact model is also not suited for evaluating permitting
decisions in Title VI litigation because (1) a decision to grant a permit to an applicant who has
met EPA health and welfare standards does not, itself, cause any disparity and (2) since there are
so many legitimate non-discriminatory reasons for the permitting decision, the mere existence of a
substantial disparate impact does not justify an inference that the impact is borne by the residents
because of their minority status.
Title IX
Trent v. Perrit. 391 F. Supp. 171 (D.C. Miss. 1975). Court held that a high school grooming
code, which prohibited only male students from wearing hair below ear, was not sex
discrimination even where male students who violate this poEcy are not allowed to attend school.
Hall v. Lee College. Inc.. 932 F. Supp. 1027 (E.D. Tenn. 1996). Court held that private college's
policy of suspending students (male or female) who engage in premarital sex did not violate Title
IX absent proof that females were treated differently under the policy than were males. [This
holding suggests that a school policy which does have a disparate impact on one gender with
respect to discipline concerning the private affairs of its students may violate Title DC] Court also
recognizes that 34 C.F.R. Sec 106 prohibits discrimination on basis of sex with respect to rules of
behavior.
Other Analogous Areas of Federal Civil Rights Law
Alexander v. Choate. 469 U.S. 287 (1985). Plaintiffs claimed that (1) a state's reduction of
Medicare coverage for hospital visits from 20 to 14 days per year and (2) a state's imposition of
any. annual limit on the number of Medicaid-covered hospital days would disproportionately deny
health care adequate to meet the increased health care needs of disabled persons. The Court held
that although Section 504 of the Rehabilitation Act and/or its implementing regulations prohibit
some disparate impact discrimination (which the Court did not define), the alleged disparate
impact alleged in this case was not actionable because the purpose of the Medicaid program is not
to provide the precise level of health care adequate to meet the particular needs of its
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beneficiaries. Instead, the Medicaid program "is a particular package of health care
services....[that] has the general aim of assuring that individuals will receive necessary medical
care, but the benefit provided remains the individual services offered— not 'adequate health
care.'"
Court also recognized that Title VI delegated to federal agencies "in the first instance the
complex determination of what sorts of disparate impacts upon minorities constituted sufficiently
significant social problems, and were readily enough remediable, to warrant altering the practices
of the federal grantees that had produced those impacts."
R.I.S.E. v. Kav. 768 F. Supp. 1144 (E.D. Va. 1991). King and Queen County sought to construct
a new landfill in a predominantly black community. Plaintiffs, local residents who opposed the
landfill, claimed that h would deprive them of equal protection of the laws under the 14th
Amendment by (1) reducing quality of life by increasing noise, dust, and odor, (2) decreasing
property values, (3) interfering with activities at a local church, (4) requiring major road
improvements, and (5) blighting the community. The court reviewed the case under Village of
Arlington Heights v. Metropolitan Housing Development Corp.. 429 U.S. 252 (1977), which
requires a finding of intentional racial discrimination, and found that the Board acted in a
responsible and conscientious manner with no intentional discriminatory motivation.
Aiello v. Browning-Ferris. Inc.. 244 ELR 20771 (N.D. Ca. 1993). Court addressed plaintiffs'
challenge under 42 U.S.C. Sections 1983 and 1985, to a decision of the defendant county to
locate and approve a landfill near a high proportion of the county's minority residents. Plaintiffs'
alleged that the decision caused dust, toxic substances, odors, and excess to afflict their residences
and has reduced their property values. Court dismissed the plaintiff's claims for lack of ripeness
and for being untimely, but did not find that a constitutional claim of discrimination could not be
based on such effects.
Laramore v. Illinois Sports Facilities Authority. 722 F. Supp. 443 (N.D. Dl. 1989). The Illinois
Sports Facilities Authority ("the Authority") sought to build a new stadium for the Chicago White
Sox at a site in which the "residents were almost exclusively black." Id. at 446. Plaintiffs,
residents of the areas adjacent to the site, alleged violations of the Equal Protection clause and
Title VI. They claimed that they would suffer a variety of injuries from construction of the
stadium including: (1) increased noise and light; (2) increased rent and tax; (3) reduced
employment base; and (4) isolation and segregation from neighboring areas. Considering those
effects, the court held that plaintiffs adequately alleged a racially disparate impact under the Equal
Protection clause and 42 U.S.C. § 1983, thereby denying part of defendant's motion to dismiss.
Id at 449. As for Title VI, however, the court concluded that plaintiffs failed to allege that
defendant was a recipient of federal funds, thereby granting part of defendant's motion to dismiss.
Id. at 451.
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NEPA
NOTE: The National Environmental Policy Act (NEPA) may be of limited usefulness in
interpreting Title VI because NEPA is essentially a procedural, not substantive, statute.
Robertson v. Methaw Valley Citizens Council. 490 U.S. 332 (1989). Supreme Court notes that
"NEPA itself does not mandate particular results, but simply prescribes the necessary process."
Statute
The policy established by NEPA is to use all practicable means and measures to, among other
things, "fulfill the social, economic, and other requirements of present and future generations of
Americans." NEPA § 101(a). The general ends of NEPA include ascertaining for all Americans:
[S]afe, healthful, productive, and esthetically and culturally pleasing surroundings;... the
widest range of beneficial uses of the environment without degradation, risk to health or
safety, or other undesirable and unintended consequences;... an environment which
supports diversity and variety of individual choice;... [and] a balance between population
and resource use which will permit high standards of living and a wide sharing of life's
amenities.
NEPA § 101(b).
Regulations
The Council on Environmental Quality's (CEQ) NEPA regulations note that "environmental
effects" or "impacts" that must be considered under NEPA include historic, cultural, economic,
and social effects. 40 C.F.R. § 1508.8.
Further, 40 C.F.R. § 1508.14 states that effects on the "fh]uman environment" include social and
economic impacts when interrelated to natural and physical environmental effects and that social
or economic impacts do not by themselves require preparation of an environmental impact
statement.
Case law
Metropolitan v. PANE. 460 US. 766, 773 (1982). Congress intended NEPA to focus on impacts
to the physical environment and natural resources. .
Como-Falcon Community v. Dent of Labor. 609 F.2d 342, 345 (8th Cir. 1979). Numerous
courts note that socioeconomic effects do not need to be considered if there is no primary impact
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on the physical or natural environment (citing cases).
Nonetheless, several courts have noted that under NEPA 102(2)(C), socioeconomic effects must
be considered if there is some primary physical impact on the environment. Hartley v. Mitchell.
460 F.2d 640 (2d Cir. 1972); NAGE v. Rumsfield. 418 F. Supp. 1302 (E.D. Pa. 1976); McDowell
v. Schlesineer. 404 F. Supp. 221 (W.D. Mo. 1975).
MITIGATION
A. Is the only relevant mitigation that which directly reduces the disparate impact
itseH?
Title VI
Brvan v. Koch. 627 F.2d 612 (2d Cir. 1980). The court addressed a Title VI challenge to a
closing of a city hospital located in Harlem. The court first noted that Title VI does not explicitly
require a federal fund recipient to consider alternatives to a proposed placement or closure of a
public facility. The Court explained that unlike in the Title VII context where mere selection
procedures are at issue, and the comparable alternatives inquiry is focused on other selection
devices, in the Title VI context the less discriminatory alternative inquiry "could frequently
become open-ended." In the instant case, the court found that Title VI did not require the
defendant to consider alternatives to address New York City's financial crisis beyond "an
assessment of all the municipal hospitals in order to select one or more for closing." The court
held that to require a more extensive consideration of alternatives would result in the court's
"assessing the wisdom of competing political and economic alternatives." This result was to be
avoided since it would mean that "such policy choices would be made without broad public
participation and without sufficient assurance that the alternative selected will ultimately provide
more of a benefit to the minority population."
However, the court also noted that a Title VI defendant might be required to consider
alternatives which have "obvious advantages" to the option of closing a facility which has a
significant disproportionate racial impact. The alternatives proposed by the plaintiffs (hospital
mergers, increasing Medicare reimbursement to hospital, increase health care provided by
hospital) were best suited for the political process, not the courts.
Finally, the court mentioned in a footnote, but did not consider in its decision, that the
defendant had agreed to mitigate the racial impact of the hospital closing by setting aside money
for a 5-year project to provide health care to Harlem residents, including allowing a community
group to lease the closed hospital for $1 per year in order to operate a drug and alcohol treatment
center.
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NAACP v. Medical Center, Inc. 657 F.2d 1322 (3d Cir. 1981). Plaintiffs challenged defendant's
decision to relocate medical center from inner city to outlying suburban areas as, inter alia,
having a disparate impact on racial minorities. The district court ordered HEW to perform a
departmental review and HEW found a disparate impact. The defendant then entered into an
agreement with HEW to mitigate this impact by (1) providing free transportation to the new
location from the inner city, (2) appointing an ombudsman to process discrimination complaints,
(3) creating in-patient service plans to prevent racial identifiability and (4) operating the remaining
inner city medical center and the new medical center on a unitary basis. The court noted that
other cases (including Bryan) did not require a Title VI defendant to search for less discriminatory
alternative before attempting to establish its business necessity defense, and indicated its
agreement with this principle. However, the court noted that the district court in the instant case
did require the defendant to go forward with evidence showing that it has chosen the least
discriminatory alternative. The court found that the district court's holding that the defendant met
this burden by considering 50 alternative plans, each of which it rejected for bonafide reasons
was not clearly erroneous. The Third Circuit also noted that the district court, itself, also
examined five alternatives, none of which would serve the defendant's needs. The Third Circuit
also relied upon its assumption that the defendant would abide by its agreement with HEW in
affirming the district court's holding.
The dissent criticized the majority's assumption that the defendant would comply with the
HEW agreement because it "short-circuitfed] the process of reasonable accommodations which
Title VI is designed to foster" by obviating the need to rebut the plaintiffs' alleged major impacts.
The dissent argues that had the majority not short-circuited the process, the defendant might have
tried to meet the plaintiffs' prima facie case by mitigating the alleged disparate impacts by, for
example, replacing the general promise to provide free transportation with a specific allocations of
funds for expanded service, by adjusting services at the new medical center, or by creating a
contingency plan which satisfied plaintiffs' concerns.
Title VH
Less Discriminatory Alternative ("LDA")/AIternative Employment
Practice ("AEP")
The Civil Rights Act of 1991 ("1991 CRA") provides that an unlawful employment
practice based on disparate impact is established only when (1) the plaintiff establishes a disparate
impact on the basis of race color, etc., and the defendant fails to demonstrate that the challenged
practice is job-related and "consistent with business necessity," or (2) the plaintiff demonstrates
the existence of an alternative employment practice and the defendant refuses to adopt such
alternative employment practice. 42 U.S.C. Section 2000e-2(k)(l)(A), The 1991 CRA
specifically provides that the concept of an "alternative employment practice" should be defined in
accordance with case law preceding Wards Cove. Generally, before Wards Cave, an alternative
employment practice was defined as a practice that had a less undesirable racial effect than the
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challenged practice and serves the legitimate interest established by the defendant. (See
Albemarle. below.)
Albemarle Paper Co. v. Moody. 422 U.S. 405. 425 (1975Y Court defined alternative
employment practices (AEP) as: "...tests or selection devices, without a similarly undesirable
racial effect, [and which would] also serve the employer's legitimate interest in 'efficient and
trustworthy workmanship.'*' The Court also noted that a showing of an AEP by the plaintiff
"would be evidence that the employer was using its tests merely as a 'pretext' for discrimination."
(CitingMcDonnell Dounlas Corp. v. Green. 411 U.S. 792, 804-805 (1973) (a disparate treatment
case)). The Court did not reach the issue of whether an AEP existed in the case.
Bailor v. Alcana County Road Comm 'n. 1997 U.S. Dist LEXIS (E.D.N.Y. 1997). Court defined
an alternative employment practice (the existence of which a plaintiff must prove to overcome the
employer's proof of business necessity) as one which has a lesser disparate impact that would
serve the employer's legitimate interests. The court noted the following factors for determining
whether an AEP exists: (1) subsequent practices adopted by the employer, (2) policies of
comparable businesses, (3) marginal cost of the proposed AEP and (4) the safety implications for
public safety of the proposed AEP. In this case the court found that the plaintiff failed to identify
a specific discriminatory employment practice and failed to identify an AEP.
Levin v. Delta Air Lines. Inc.. 730 F.2d 994, 1000 (5th Cir. 1984). Court held that an AEP is a
practice which (1) serves the employer's legitimate purpose, and (2) has a discriminatory effect on
fewer of the protected group or has a less severe effect on the protected group (even if the same
number of protected group members are effected). Here, airline's policy of removing pregnant
flight attendants from duty was job-related and was a business necessity since policy promoted
safety of airline passengers. Furthermore airline was not required to implement proposed
alternative of transferring pregnant flight attendants to ground crew since training for flight
attendants was significantly different than training for ground crew.
Moslevv. ClarksvilleMem. Hasp.. 574 F. Supp. 224 (MD. Tenn. 1983). Court noted that an
AEP must be "without an adverse effect" and must serve the employer's legitimate interest.
Pezues v. Mississippi Slate Employment Serv.. 699 F.2d 760, 773 (5th Cir. 1983), reh 'g. denied,
705 F.2d 450 (1983), cert, denied, 464 U.S. 991 (1983). Court held that an AEP is a practice
that is less discriminatory than the challenged practice.
Zoning v. Kleburz County HOSD.. 692 F.2d 986 (5th Cir. 1982). Court found hospital's practice
of firing pregnant X-ray technicians violated Title VII even though hospital showed a business
necessity for the policy. An alternative policy of laying the plaintiff off, instead of firing her, was
available and would have a less severe impact.
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Neloms v. Southwestern Elec. Power Co.. 440 F. Supp. 1353, 1370 (W.D. La. 1977). Court held
that an AEP is a practice without the undesirable racial impact of the challenged practice that
would also serve the employer's legitimate interest in efficient and trusty workmanship. The court
stated: "an employer may not even use a job-related selection device if there is another device that
will accomplish the same result without the undesirable racial impact."
5th Amendment Due Process Clause/ 14th Amendment Equal Protection
Clause
Adarand Constructors. Inc v. Pena. 515 U.S. 200 (1995). Court reviewed a Federal government
affirmative action program for government contracting. Court holds that all governmental race-
based classifications must be subjected to a strict scrutiny analysis under the 5th Amendment's
Due Process Clause (Federal government action) or under the 14th Amendment's Equal
Protection Clause (state and local government action). Strict scrutiny requires that the racial
classification at issue both serves a compelling governmental interest and is narrowly tailored to
further that interest. Remedying the effects of past discrimination against minority groups may be
a governmental interest compelling enough to justify a racial classification, as long as the
classification is narrowly tailored to fulfill this need. Court noted that factors to consider in
determining whether the classification is "narrowly tailored" include: (1) whether die government
considered the use of race neutral means of satisfying the compelling interest and (2) whether the
racial classification is limited in scope so that it "will not last longer than the discriminatory effects
it is designed to eliminate."
Richmond v. J.A. Croson Co., 488 U.S. 469 (1989). Court held that in order for a government to
establish that a racial classification furthers a need or remedies past discrimination, it must show a
"strong basis in evidence for its conclusion that remedial action was necessary " The "strong
basis in evidence" required is generally a showing approaching a prima facie case of discrimination
not of general societal discrimination, but of discrimination caused by the parties implementing the
racial classification. Court repeatedly noted that in the instant case, the weak predicate of
discrimination could not justify the rigid racial quota at issue, suggesting that the less compelling
the interest, the more narrow tailoring is required and, conversely, the more compelling the
interest, the less narrow tailoring is required.
United States v. Paradise. 480 U.S. 149, 171 (1987). Court held that the following factors were
relevant to a "narrowly tailored" analysis in the employment context: (1) whether the government
considered race neutral criteria before adopting the racial classification, (2) whether race is one
factor to be used as a criterion or whether race is the sole or dominant factor, (3) whether there is .
a reasonable and non-arbitrary relationship of the racial classification to the size of the disparity
which it has been adopted to reduce, (4) the scope of the racial classification program, (5) the
duration of the racial classification program, and (6) the impact of the racial classification program
on minorities.
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B. What kind of guidance exists from other areas of law (SEPs?) for how tightly (or
broadly) the nexus must be?
Supplemental Environmental Projects (SEPs)
Environmental Statutes Penalty Provisions
Typically, administrative civil penalty enforcement provisions in EPA statutes direct that the
Administrator may impose a civil penalty for violation of the statute, up to a specified dollar
amount either per violation or per day of violation (e.g., Emergency Planning and Community
Right to Know Act (EPCRA) §325(b)(l), 42 U.S.C. §11045(bXl))- Judicial civil penalty
provisions are similar (e.g., Clean Water Act (CWA) §309(d), 33 U.S.C. §1319(d)).
Accordingly, EPA has discretion to assess a penalty for an amount less than the maximum amount
specified in the statutes. Courts defer to agency determinations on penalties:
NL Indus.. Inc. v. Pep't of Transp.. 901 F.2d 141 (D.C. Cir. 1990), administrative agency is
entitled to substantial deference in assessing civil penalty appropriate for violation of its
regulations.
Caxv. U.S. Dep't of Aerie.. 925 F.2d 1102 (llth Cir. 1991), cert denied 112 S. Ct. 178 (1991).
Assessing penalties for violation of the Animal Welfare Act was an exercise of a discretionary
grant of power by USD A, and review by the court is limited.
Mendelson v. Macv. 356 F.2d 796, 799 n.4 (D.C. Cir. 1966). Court suggests that penalty
assessments within the range authorized by statute are virtually unreviewable.
Many of EPA's statutes include penalty assessment provisions that set out criteria that EPA or the
court must consider in determining the appropriate penalty. EPCRA § 325(bXlXQ is typical of
those penalty provisions:
In determining the amount of any penalty assessed pursuant to this subsection, the
Administrator shall take into account the nature, circumstances, extent, and gravity of the
violation or violations and, with respect to the violator, ability to pay, any prior history of
such violations, the degree of culpability, economic benefit or savings (if any) resulting
from the violation, and such other matters as justice may require.
42 U.S.C. §11045(bXl) (Class I administrative penalties).
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Supplemental Environmental Projects (SEPs) Policy
In the settlement context, EPA generally follows these criteria in exercising its discretion to
establish an appropriate settlement penalty. To further EPA's goals to protect and enhance public
health and the environment, in certain instances environmentally beneficial projects, or
Supplemental Environmental Projects (SEPs), may be part of the settlement. EPA's Final
Supplemental Environmental Projects Policy, effective as of May 1, 1998, sets forth the types of
projects that are permissible as SEPs, the penalty mitigation appropriate for a particular SEP, and
the terms and conditions under which they may become part of a settlement.
EPA considered two Comptroller General opinions (In the Matter of: Nuclear Regulatory
Commission's Authority to Mitigate Civil Penalties (NRC opinion) (B-238419), 70 Comp. Gen.
17(1990); In the Matter of: Commodity Futures Trading Commission B-210210 (Sept. 1983)
(CFTC opinion.) in developing the Final SEP Policy. Both matters involved agencies proposing
to allow violators to donate money to educational institutions for research in lieu of civil penalties,
and in both instances, the Comptroller General thought that the agencies would be improperly
augmenting appropriations by such actions.
In a July 7, 1992 letter (B-247155) (unpublished) responding to Congressman John D. Dingell,
the Comptroller General concluded that EPA did not have authority to settle mobile source air
pollution enforcement actions under §205 of the Clean Air Act by allowing violators to fund
certain public awareness projects and that EPA's enforcement authority did not extend to these
remedies which were unrelated to correction of the violation.
EPA's Final SEP Policy has addressed the Comptroller General's concerns. General public
educational or public environmental awareness projects, (e.g., sponsoring seminars public
seminars, conducting tours of environmental controls at a facility, promoting recycling in a
community), are not acceptable SEPs. The Final SEP Policy requires that all projects advance at
least one of the objectives of the environmental statutes that are the basis of the enforcement
action and must have adequate nexus. "Nexus'vis defined in the Final SEP Policy as the
relationship between the violation and the proposed project, and exists only if:
the project is designed to reduce the likelihood that similar violations will occur in the
future; or the project reduces the adverse impact to public health or the environment to
which'the violation at issue contributes; or the project reduces the overall risk to public
health or the environment potentially affected by the violation at issue.
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C. What is the role of mitigation? Must states use mitigation before attempting to
show "legitimate" justification for the disparity? Can it be used to justify a
"legitimate" justification for the disparity?
. Title VI
Mitigation
Brvan v. Koch. 627 F.2d 612 (2d Cir. 1980). The court addressed a Title VI challenge to a
closing of a city hospital located in Harlem. The court first noted that Title VI does not explicitly
require a federal fund recipient to consider alternatives to a proposed placement or closure of a
pubEc facility. The Court explained that unlike in the Title VII context where mere selection
procedures are at issue, and the comparable alternatives inquiry is focused on other selection
devices, in the Title VI context the less discriminatory alternative inquiry "could frequently
become open-ended." In the instant case, the court found that Title VI did not require the
defendant to consider alternatives to address New York City's financial crisis beyond "an
assessment of all the municipal hospitals in order to select one or more for closing." The court
held that to require a more extensive consideration of alternatives would result in the court's
"assessing the wisdom of competing political and economic alternatives." This result was to be
avoided since it would mean that "such policy choices would be made without broad public
participation and without sufficient assurance that the alternative selected will ultimately provide
more of a benefit to the minority population."
However, the court also noted that a Title VI defendant might be required to consider
alternatives which have "obvious advantages" to the option of closing a facility which has a
significant disproportionate racial impact. The alternatives proposed by the plaintiffs (hospital
mergers, increasing Medicare reimbursement to hospital, increase health care provided by
hospital) were best suited for the political process, not the courts.
Finally, the court mentioned in a footnote, but did not consider in hs decision, that the
defendant had agreed to mitigate the racial impact of the hospital closing by setting aside money
for a 5-year project to provide health care to Harlem residents, including allowing a community
group to lease the closed hospital for $1 per year in order to operate a drug and alcohol treatment
center.
NAACPv. Medical Center. Inc.. 657 F.2d 1322 (3d Cir. 1981). Plaintiffs challenged defendant's
decision to relocate medical center from inner city to outlying suburban areas as, inter alia,
having a disparate impact on racial minorities. The district court ordered HEW to perform a
departmental review and HEW found a disparate impact. The defendant then entered into an
agreement with HEW to mitigate this impact by (1) providing free transportation to the new
location from the inner city, (2) appointing an ombudsman to process discrimination complaints,
(3) creating in-patient service plans to prevent racial identifiability and (4) operating the remaining
inner city medical center and the new medical center on a unitary basis. The court noted that
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other cases (including Bryan) did not require a Title VI defendant to search for less discriminatory
alternative before attempting to establish its business necessity defense, and indicated its
agreement with this principle. However, the court noted that the district court in the instant case
did require the defendant to go forward with evidence showing that it has chosen the least
discriminatory alternative. The court found that the district court's holding that the defendant met
this burden by considering 50 alternative plans, each of which it rejected for bonafide reasons
was not clearly erroneous. The Third Circuit also noted that the district court, itself, also
examined five alternatives, none of which would serve the defendant's needs. The Third Circuit
also relied upon its assumption that the defendant would abide by its agreement with HEW in
affirming the district court's holding.
The dissent criticized the majority's assumption that the defendant would comply with the
HEW agreement because it "short-circuitfed] the process of reasonable accommodations which
Title VI is designed to foster" by obviating the need to rebut the plaintiffs' alleged major impacts.
The dissent argues that had the majority not short-circuited the process, the defendant might have
tried to meet the plaintiffs' prima facie case by mitigating the alleged disparate impacts by, for
example, replacing the general promise to provide free transportation with a specific allocations of
funds for expanded service, by adjusting services at the new medical center, or by creating a
contingency plan which satisfied plaintiffs' concerns.
Less Discriminatory Alternatives
Elston v. Taladeza County BeL ofEduc.. 997 F.2d 1394, 1407 (11th Cir. 1993), reh'gen bane
denied, 7 F.3d 242 (11th Cir. 1993). Court held that defendant met its burden to show that
building a new school in a predominately white neighborhood instead of expanding an existing
school in a predominately black neighborhood was "necessary to meeting a goal that was
legitimate, important, and integral to the defendant's institutional mission" by demonstrating that
there was not enough land at the existing school site to accommodate the new school. The court
did not require that the defendant consider less discriminatory alternatives before deciding on the
location of the school, nor did the court require that the defendant mitigate the disparate impact
which the court assumed arguendo was caused by the siting decision. Furthermore, the court
found that the plaintiffs did not propose alternative sites for the school that would have had a less
discriminatory impact, or propose a solution to the lack of space at the existing school site. The
court also found that since there was no evidence that discriminatory animus motivated the
school's decision, the plaintiffs could not show that the location decision was pretextual.
Younv v. Montgomery County. 922 F. Supp. 544 (M.D. Ala. 1996). Court held that the
defendant school board successfully established that the goal of preventing athletic recruiting was
a substantial legitimate justification for a policy which required students transferring schools to sit
out of interscholastic sports for one year after transfer. The plaintiffs proposed use of the existing
grievance procedure of the state athletic association as an alternative to the policy which would
not have a disparate impact on black students. Court found that the defendant would not have to
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adopt the proposed alternative since it had been shown to be ineffective in preventing athletic
recruiting in the past. Furthermore, the court did not require the school board to have considered
this alternative or any other alternative before establishing the existence of their substantial
legitimate justification.
Coalition of Concerned Citizens Azainst 1-670 v. Damian. 608 F. Supp. 110 (D.C. Ohio 1984).
Plaintiffs claimed that a city's decision to locate a highway through predominately minority
neighborhoods caused a disparate adverse impact on minorities. Citing Bryan and NAACPv.
Medical Center, the Court noted that there is some question whether Title VI requires a fund
recipient to consider alternatives with less disparate impact before making the decision at issue.
However, in the instant case, the court found that it was unnecessary to answer the question since
(1) FHWA regulations required consideration of alternatives, (2) the city did, in fact consider a
mass transit alternative, at the plaintiffs urging which was designed to minimized the disparate
racial impact, and rejected this alternative, and (3) the plaintiffs failed to proposed any appropriate
alternatives to be considered.
Title VH
Less Discriminatory Alternative ("LDA")/Alternative Employment Practice
("AEP")
SEE ALSO CASES DIGESTED IN JUSTIFICATION SECTION
There is disagreement among federal courts as to whether or not Title VII (as amended by
the 1991 CRA) requires the defendant to search for and/or use every existing AEP or LDA before
attempting to show that the challenged practice is "job-related" and is "consistent with business
necessity." The 1991 CRA clearly places the burden of establishing the existence of an AEP/LDA
on the plaintiff.
Dothardv. Rawlinson. 433 U.S. 321 (1977). Alabama's minimum height and weight
requirements for hire of correctional counselors was not shown to be significantly related to job
performance so as to justify the requirements' disparate impact on women. The Court rejected
employer's argument that the requirements were justified because they have a "relationship to
strength, a sufficient but unspecified amount of which is essential to effective job performance as a
correctional counselor" noting that "the appellants produced no evidence correlating the height
and weight requirements with the requisite amount of strength thought essential to good job
performance." The Court then stated that "if the job-related quality that the appellants identify is
bona fide", the employer could have adopted a test to directly measure strength instead of relying
on height and weight statistics. However, the Court indicates that the plaintiff has the burden of
proof of showing the existence of other selection devices which would serve defendant's goals of
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"efficiency and trustworthy workmanship" without a "similarly undesirable racial effect."
Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975). Court held that it is plaintiff has the
burden of proof of showing the existence of other selection devices which would serve
defendant's goals of "efficiency and trustworthy workmanship" without a "similarly undesirable
racial effect."
Donnellvv. Rhode Island Bd of Governors 929 F. Supp. 583 (D.R.I. 1996). The court noted
that if the defendant was required to prove that it had no alternative to the challenged practice in
order to establish business necessity, then no AEP could possibly exist and the plaintiff would
have nothing to prove. Thus, section 2000e-2(k)(A)(ii) of the 1991 CRA, which places the
burden of establishing the existence of an AEP on the plaintiff would be meaningless.
Bradley v. Pizzaco of Nebraska. Inc.. 7 F.3d 795 (8th Gin 1993). Court held that under Gr/ggy.
in order for a defendant to show a substantial business justification for the challenged practice, it
must show (a) the practice has a "manifest relationship to the employment in question" and (b) a
compelling need to maintain the practice and that there is no alternative to the challenged practice.
Levin v. Delta Air Lines. 730 F.2d 994 (5th Cir. 1984). Court suggests that where a LDA is
apparent and easily utilized and yet a defendant does not adopt it, the defendant may have
difficulty establishing a business necessity defense. On the other hand, where an LDA is less
apparent and not as easy to utilize, the burden may be on the plaintiff to identify and prove the
existence of an LDA
Wrizhtv. OlinCorp.. 697 F.2d 1172 (4th Cir 1982). Court subjected employer's fetal protection
policy to a disparate impact analysis. (NOTE: Fetal protection policies are now usually analyzed
under the disparate treatment standard.) Court held that the defendant could show aprima facie
business necessity defense with proof that (1) the risk of harm which the policy attempts to lessen
or eliminate must be sufficiently compelling to overcome the disparate effect which the practice
causes, and (2) the policy effectively avoids the harm and is reasonably necessary to avoid the
harm. The Court noted that the defendant must prove a business necessity objectively:
defendant's belief that the policy is necessary is not sufficient. However, defendant is not required
to show a general consensus among experts on the degree of risk of harm and necessity of the
policy to address the risk, but only "a considerable body of opinion" such that "an informed
employer could not fail to act on the assumption that the opinion is an accurate one."
The Court also overruled its decision in Robinson v. Larillard. 444 F.2d 791 (4th Cir
1971) insofar as it held that the defendant, in establishing hs business necessity defense, must
prove that no acceptable alternatives exist. The Court noted that while the Supreme Court has
never explicitly repudiated this aspect of the Larillard decision, the Court's decisions \nBeazer.
Albemarle. and Dothard"ha.ve so clearly indicated that proof of'acceptable alternatives' is the
claimant's burden in 'rebuttal' that we must consider Larillard'5 formulation to that extent no
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longer authoritative."
Chrisner v. Complete Auto Transit. Inc., 645 F.2d 1251 (6th Cir. 1981). The district court
rejected the defendant's business necessity defense for a two-year experience hiring requirement
because although the defendant showed a compelling business necessity for the employment in
question, the defendant had not shown the unavailability of alternative hiring practices which
would have less of a disparate impact. The Sixth Circuit reversed on the grounds that the lower
court improperly placed burden of proving the existence of an AEP on the defendant. The Sixth
Circuit explained that the district court "unjustifiably collapsed the three-step [disparate impact]
test employed in Griggs into a two-step examination in which the defendant was burdened with
proving... that its hiring requirements would have the least disparate impact of all conceivable
requirements which satisfactorily measure applicants for employment," making the third step
superfluous. The Sixth Circuit noted that although many court opinions interpret "business
necessity" to require that the challenged practice is absolutely necessary or inherently essential,
this interpretation has not been adopted by the Supreme Court. Instead, the Supreme Court's
articulation of the business necessity test in Griggs [manifestly related to employment and
necessary to safe and efficient job performance] should be followed. "The Sixth Circuit expounds
on the Griggs standard stating: "For a practice to be necessary ... it need not be the sine qua non
of job performance; indispensability is not the touchstone. Rather, the practice must substantially
promote the proficient operation of the business." The Sixth Circuit cites Board of Trustees v.
Sweeney, 439 U.S. 27 (1978) in support of its holding explaining that in Sweeney, the Supreme
Court found that collapsing the three-step disparate treatment analysis into a two-step analysis by
requiring the defendant to prove absence of pretext was improper.
Clanton v. Orleans Parish School Bd.. 649 F.2d 1084, 1098 (5th Cir. 1981). Court held that the
defendant's attempt to establish a business necessity justification "fails as a matter of law" because
of the existence of less discriminatory alternatives. The court found decisive that the defendant
school board admitted that achievement of its fiscal objective did not require it to use pregnancy
as a basis for determining who to retain and that less discriminatory alternatives such as (1) filling
available positions on the basis of seniority or other objective factors, (2) laying off teachers by
random selection, or (3) deferring the return of teachers on leave.
Conteras v. City of Los Angeles. 656 F.2d 1267 (9th Cir. 1980), cert, denied, 455 U.S. 1021
(1982). Court hdd that placing the burden of establishing the non-existence of an AEP/LDA on
the employer clearly misallocates the AEP burden of proof. Once a defendant shows that the
challenged practice is job-related, the plaintiff must show that an LDA would satisfy the
employer's legitimate interests. The plaintiff in this case failed to establish that using oral
interviews for hiring is an AEP/LDA to using written examinations because he did not show that
oral interviews would satisfy the city's civil service hiring needs. Evidence that oral interviews
were used in hiring in other city department was not relevant to show that oral interviews would
satisfy needs of the new department at issue.
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Kirbvv. ColonvFurn. Co.. 613 F.2d 696 (8th Cir. 1980). Court held that to prove job-
relatedness and business necessity, the defendant must show that there is a compelling need for
the maintenance of the practice and that there is no alternative to the challenged practice.
Neloms v. Southwestern Elec. Power Co.. 440 F. Supp. 1353, 1370 (W.D. La. 1977).. Court held
that in order for a defendant to show a business necessity and thus relieve itself from liability for a
practice which causes a disparate impact, the practice must be "essential to safety and efficiency"
and "[t]here must be no other alternative to achieve the same result as the test in question, and the
result desired from the test in question must be essential to the operation of the business." The
court further stated: "an employer may not even use a job-related selection device if there is
another device that will accomplish the same result without the undesirable racial impact."
Parson v. Kaiser Aluminum & Chemical Corp., 575 F.2d 1374, 1389 (5th Cir. 1978), reh 'g
denied, 583 F.2d 132, cert, denied, 441 U.S. 968 (1978). To establish business necessity,
defendant must show (1) that practice is essential to goals of safety and efficiency, (2) there is no
acceptable alternative that will accomplish these goals equally well with a lesser differential racial
impact.
JUSTIFICATION
A. What legal precedent is there from other areas of civil rights law for "justifying"
what would otherwise be an impermissible disparity?
Title VI
Coalition of Concerned Citizen Aeainst 1-670 v. Damian. 608 F. Supp. 110 (D.C. Ohio 1984)
Although a proposed highway project to relieve traffic congestion disparately impact
predominantly African American neighborhoods, the court found that defendants met their burden
of justifying the disparity by articulating legitimate nondiscriminatory reasons for the chosen
location. The court also ruled that the less discriminatory alternatives articulated by the plaintiff
foiled to meet the project's program objectives and therefore did not constitute a Title VI
violation.
Georgia State Conference of Branches ofNAACP v. State ofGeoreia, 775 F.2d 1403, 1417
(llth Cir 1985) African American students were disproportionately placed in low level
achievement groupings. The court found that Defendant's achievement groupings bore a manifest
demonstrable relationship to classroom education and were justified by lowering student-teacher
ratios, improving class manageability, and student motivation.
Larrv P. v. Riles. 793 F 2d 969, 982 (9th Cir. 1984), A school system used an intelligence test
that disproportionately placed African American students in classes for the learning disabled. The
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court found that the unvalidated test was not an educational justification under Title VI.
Elstonv. Talladesa County Bd. OfEdvc.. 997 F.2d 1394 (llth Cir. 1993), Plaintiffs alleged that
a school board's decision to place a new school in a predominantly white neighborhood increased
the racial identifiabilhy of the formerly segregated school system. The court found that even if the
new school increased the racial identifiabilhy of the school system, the siting decision was justified
by the absence of adequate land in the African American neighborhood.
NA.A.C.P. v. Medical Ctr.. Inc.. 657 F.2d 1322, 1332 (3rd Cir. 1981). A city hospital decided to
relocate to a suburban area to gain the financial profits needed to improve the quality of care and
keep the hospital's educational accreditation. The court found that the defendant's plan to
relocate was a substantial legitimate justification for the racial disparity it created. The court also
found that the provision of shuttle bus service between the old location and the new hospital
mitigated much of the racial disparity created by the plan.
New York Urban League v. New York. 71 F.3d 1031 (2dCir. 1995). Users of New York's public
transit system alleged that subsidies provided to commuter rail users disparately benefitted the
predominantly white commuter rail users. The court found that the benefits that commuter rail
subsidies produced for the city (minimized road congestion, decreased pollution, increased
subway and bus rider ship) constituted a substantial legitimate justification for the disparate rates
payed by the different transit system users.
Union Bv Arnold v. Carney By Kimble. 779 F. Supp. 925 (M.D. Term. 1990), The court found
that the defendant's explanation that "self-selection preferences" of minorities, based upon
reliance upon the extended family, lack of transportation, and fear of institutional care are
inadequate justification for the minority under representation in nursing homes.
Meek v.Martinez. 724 F. Supp. 888 (S.D. Fla. 1987), A funding mechanism used by Florida to
provide assistance for elderly residents disproportionately benefitted white residents. The court
found no justification for disparity in funding where the defendant failed to show that the
intrastate funding formula used by Florida bore a "manifest demonstrable relationship" to
achieving the goals mandated by the Older Americans Act.
Graves v. Alabama State Bd. ofEduc.. 776 F. Supp. 1518 (M.D. Ala 1991). The requirement
that college entrants achieve a minimum score on the American College Test (ACT)
disproportionately excluded minority students from college entrance . The court found that the
State Board of Education requirement of a college entrance examination was not justified as
essential to participation in college.
Chicago v. Undlev. 66 F.3d 819 (7th Cir. 1995). The Older Americans Act (OAA), 42 U.S.C.
3001-3058ee, directed the federal government to distribute funds to the states in order to provide
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services to "older individuals" (i.e., over 60 years of age). The State of Illinois developed a
formula to allocate its money among the local jurisdictions. That formula considered, among
other things, the number of older individuals who are members of minority groups, who live in
rural areas, and who are at least 75 years of age. The City of Chicago claimed that the latter two
factors discriminated against minorities because older individuals living in rural areas are 98%
non-minority and 13.7% of the state's older individuals are minorities, but only 10.7% of them are
over 75. The court found that the disparity caused by the rural factor in Illinois' formula was
justified by the language of the OAA requiring a minimum spending amount for elderly persons
residing in rural areas.
Grimes ex reL Grimes v. Sobol. 832 F. Supp. 704 (S.D.N. Y. 1993), qff'd, Grimes ex reL Grimes
v. Sobol. 37 F.3d 857 (2d Cir. 1994), plaintiffs amended their earlier complaint to allege that
defendant violated DOEd's Title VI regulations. A violation of the regulations occurs when the
"criteria or .methods of administration" have the effect of discriminating on the basis of race. The
court held that the regulations do not encompass auricular content, based on DOEd's conclusion
that its own Title VI and DC regulations did not apply to curriculums.
Young v. Montgomery County. 922 F. Supp. 544 (MJX Ala. 1996). Plaintiffs, African American
student athletes seeking to transfer through a minority to majority program, challenged the
discriminatory effect caused by a board of education policy requiring them to forego one year of
athletic involvement. The court found that the policy was not adverse in that it benefitted the
minority, schools that students were transferring from. The court also stated that the Board of
Education's intent to prevent athletic recruiting from majority high schools served as a substantial
legitimate justification of the adverse impact experienced by transferring students.
Brvan v. Koch. 627 F.2d 612 (2d Cir. 1980), Closing a hospital which served a 98% minority
.population for financial reasons did not show discriminatory intent. Even assuming a disparate
impact - the city showed "appropriateness" (fiscal realities) of closing hospital which was justified
on the grounds that the closure would reduce expenditures and increase efficiency within the
municipal hospital system. Dissent (in part) argued that the city had made no showing that
closing this hospital was the result of a "rational decision making process." Among the criteria
evaluated by the court was a comparison of each of the municipal hospitals with regard to (a)
hospital size, scope of patient services, and extent of usage; (b) patient access to comparable
alternative facilities; (c) quality of plant and operations; and (d) present and predicted fiscal
performance. Summarized in Grant v. New York State Office of Mental Health, 646 N.Y.S.2d
1018, 1023 (N.Y. Sup. 19*96).
Gomez v. Chodv. 1987 WL 9574, *5 (N.D. HI. 1987). Assuming that plaintiffs had made a
showing of discrimination based on national origin, the court concluded that the evidence
establishes a legitimate nondiscriminatory purpose in displacing the residents. The Grove Street
Apartments had been declared a public nuisance, "living conditions were unsafe and generally
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intolerable. Condemnation proceedings had begun, and the apartments were going to be torn
down in any event. The documented "uninhabitabilhy of the apartments provides ample
justification for Defendants' targeting the she for either demolition or rehabilitation.
African American Legal Defense Fund, Inc. v. New York State Dep't ofEdtic.. 1998 Lexis
(S.D.N.Y. 1998), Substantial legitimate justifications were "obvious and essentially not disputed"
where legislation provided for state wide distribution of financial aid to public schools on the basis
of student attendance rather than enrollment (resulting in greater dollars per pupil of state aid to
non-city public schools). The stale has an interest in paying only for those students who actually
attend classes in order to encourage schools to improve attendance and spend funds effectively.
Here, the court found no disparate impact under Title VI where differences resulted from societal
factors having a disproportionate impact on minorities.
Sandaval v. Haean. 7 F. Supp.2d 1234, 1264 (M.D. Ala. 1998). The policy and regulation of
Alabama Department of Public Safety under which driver's license examinations were
administered only in English had impermissible disparate impact on basis of national origin in
violation of Title VI. It was not supported by substantial legitimate justification, which may be
that the challenged policy was necessary,to meeting a goal that was legitimate, important, and
integral to defendant's institutional mission. Alleged safety concerns did not provide substantial
legitimate justification because non-English speakers with valid licenses from other states and
countries were allowed to drive in Alabama, nothing indicated that deaf or illiterate English-
speaking drivers, for whom accommodations were made, posed any less of a safety risk, and
utilization of international highway symbols meant that non-English speakers could drive safely in
Alabama. Alleged administrative concerns did not provide substantial legitimate justification since
Department had in the past successfully administered examinations in 14 foreign languages for
over a decade, and Department expended substantial resources making accommodations for deaf
or illiterate English speakers who took examination.
Scelsa v. Citv University of New York. 806 F. Supp. 1126, 1140 (S.D.N. Y. 1992), While CUNY
may be able to proffer non-discriminatory reasons for discrete actions and for employment
decisions taken with respect to specified individuals, plaintiffs may still prove their case if CUNY
cannot legitimate an employment regime in which almost two decades of stated commitment to
increase the representation of Italian-Americans has yielded no significant progress. Defendants
have not presented any reason, legitimate or not, as to why this is the case. Secondly, defendants
have provided no reasons for the current low employment percentage of Italian-Americans in the
CUNY staff and faculty workforce. When defendants in a civil rights case such as this can
provide no reasons for the under-representation of a protected class within a workforce, the
inference is that the only rational way to explain the disparity is discrimination.
Williams v. Citv ofDothan. 818 F.2d 755 (11th Cir. 1987). Plaintiffs were minority residents who
claimed that city improvement projects had discriminatory impact because projects in
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predominantly white areas received higher percentage of municipal funds than projects in black
areas. The court of appeals found that the effect of the project at issue was that blacks had to pay
a higher cost of the improvements than whites had to pay for similar improvements in past
projects. The court also rejected the district court's finding of "surrounding circumstances"
which canceled out any discriminatory effect the improvement project may have had on the city's
black citizens. One such circumstance was the fact that whites owned 50% of the property in the
improvement area and would be responsible for the assessments on those properties. While the
court agreed that this fact was relevant, it noted that ultimately blacks would be responsible for
these costs as most of the property in the area was at least occupied by blacks, if not owned by
them. Overall, the percentage of blacks living in the project area was much higher than the
percentage of blacks in the population. The court found that the plaintiffs had carried their
burden of showing a disparate impact and remanded the case to the district court for a
determination and award of appropriate relief.
Title VH
"Business Necessity/Job-relatedness"
SEE ALSO CASES DIGESTED IN MITIGATION SECTION
The Civil Right Act of 1991 ("1991 CRA") provides, that when a plaintiff in a disparate
impact case has shown that a particular practice causes a disparate impact, the defendant has the
burden of proving "that the challenged practice is job-related for the position in question and is
consistent with business necessity." 42 U.S.C. Sec. 2000e-2(k)(l)(A)(i).
Wards Cave Packme v. Antonio. 490 U.S. 642 (1989). Court generally described a policy or
practice which is justified by "business necessity" and/or " job-relatedness" as one which serves,
in a significant way, the legitimate interest of the employer, but which is not necessarily essential
or indispensable to the employer's interests. Note: There is some doubt that this holding is still
good law since the 1991 CRA specifically overruled Wards Cove as to the allocation of the
burden of proving business necessity and as to the definition of an "alternative employment
practice," but did not specifically overturn Ward Cove's definition of business necessity or even
define business necessity in a way that is obviously inconsistent with Wards Cove's definition.
However, some recent court decisions hold that the history of the 1991 CRA indicates that
"Section 2000e-2(k)(l)(A) was designed to codify the concepts of'business necessity' and 'job
relatedness' as they existed before ... Wards Cove [Le., the definitions articulated in Griggs v.
Duke Power Co. and NYC Transit Authority v. Beazer, infra]" See also Donnelly v. Rhode
Island Board of Governors, 929 F. Supp. 583, 593 (D.R.I. 1996);
NYC Transit Authority v. Beazer, 440 U.S. 568, 587 (1979). Employer rule excluding use of all
narcotics, barbituates, amphetamines, and most methadones is justified as job-related in that it
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promotes legitimate employer goals of safety and efficiency. The Court agreed whh the District
Court that these goals are "significantly served by—even if they do not require—[defendant's rule]
.... The record thus, demonstrates that the .. . [defendant's] rule bears a 'manifest relationship
to the employment in question.' Griggs, 401 U.S. at 432. See Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975)."
Griszs v. Duke Power Co.. 401 U.S. 424 (1971). Court held that to meet its burden of
establishing "job relatedness" or "business necessity," a defendant has "the burden of showing that
any given requirement [has]... a manifest relationship to the employment in question." Applying
this standard, the Court held that the employer's requirement of a high school degree and passage
of general intelligence test as conditions of hire and transfer was not shown to be significantly
related to job performance so as to justify the requirement's disparate impact on blacks.
Dothardv. Rawlinson. 433 U.S. 321 (1977). Alabama's minimum height and weight
requirements for hire of correctional counselors was not shown to be significantly related to job
performance so as to justify the requirements' disparate impact on women. The Court rejected
employer's argument that the requirements were justified because they have a "relationship to
strength, a sufficient but unspecified amount of which is essential to effective job performance as a
correctional counselor" noting that "the appellants produced no evidence correlating the height
and weight requirements with the requisite amount of strength thought essential to good job
performance." The Court then stated that "if the job-related quality that the appellants identify is
bona fide", the employer could have adopted a test to directly measure strength instead of relying
on height and weight statistics. However, the Court indicated that, an argument (not made by the
employer) that apparent strength, rather than actual strength (which might be measured by height
and weight statistics) could be sufficiently necessary to the position of correctional counselor so
as to justify disparate impact on women.
Daley v. City of Omaha. 107 F.3d 587 (8th Cir. 1997). Court held that city's purpose in
reclassifying library positions to (1) bring employees' wages into conformity with wages paid in
comparable cities and (2) promote fairness were valid business justifications for the disparate
impact on female employees caused by the reclassification. [Note: this case applies the Wards
Cove definition of business necessity and not the standard as articulated by the 1991 Civil Rights
Act because the Civil Rights Act was not retroactive, so h did not apply to the case.]
Donnelly v. Rhode Island Bd. of Governors. 929 F. Supp. 583 (D.RJ. 1996). Court finds that
the history of the 1991 Civil Rights Act indicate that "Section 2000e-2(kXl)(A) was designed to
codify the concepts of'business necessity' and 'job relatedness' as they existed before... Wards
Cove [i.e., the definitions articulated in Grrggy v. Duke Power Co. and NYC Transit Authority v.
Beazer. supra]." The court noted that a previous version of the 1991 CRA used the phrase
"required by necessity," but was replaced by the language "consistent whh business necessity"
suggesting that Congress "meant to require something less than a showing of indispensability."
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The court also noted that if a demonstration of business necessity required defendant to show that
the practice was indispensable, then no alternative less discriminatory practice could exist and the
provision of the 1991 CRA which places the burden of establishing the existence of an alternative
employment practice on the plaintiff would be meaningless. The court concludes that "What the
[1991 CRA] appears to require [from defendants] is proof that the challenged practice is
reasonably necessary to achieve an important business objective." In this case, the court found
that the defendant showed that a three-tiered system of minimum salaries for its teachers, while
not absolutely necessary to any business goal, was justified as reasonably necessary to achieve the
important business purpose of maintaining the highest quality professors at a relatively low cost.
EEOC v. Steamship Clerks Union Local 1066. 48 F.3d 594, 605 (1st Cir. 1995), cert, denied,
516 U.S. 814 (1995). Court addressed a union policy which required that new applicants be
sponsored by an existing union member. The court rejected the Union's argument that the policy
was necessary to "continue family traditions" and held that the disparate impact on black
applicants caused by this policy was not justified since continuing family traditions was not
necessary to the business of steamship clerks.
Lon?v. First Union Corp. of Virginia. 894 F. Supp. 933, 941 (E.D. Va. 1995), aff'd, 86 F.3d
1151 (1995). Court held that employer established business justification for its English-only rule
where the rule was enacted to prevent bilingual employees from intentionally speaking in Spanish
in order to isolate and intimidate members of other ethnic groups. Court also held that the
employer's revocation of the rule did not establish that the rule was not necessary for business. .
Fitzpatrickv. Citv of Atlanta. 2 F.3d 1112, 1118-19 (llth Cir. 1993). City's prohibition of
shadow beards on firefighters was job-related as necessary to protect the firefighters from a health
and safety risk. However, the court emphasized that an employer must do more than merely
recant a safety reason in order to establish business necessity or job-relatedness; the employer
must prevent convincing evidence that the challenged practice is required to protect employees or
third parties from documented hazards.
Bradley v. Pizzaco of Nebraska. Inc., 7 F.3d 795 (8th Cir. 1993). Court held that the 1991
CRA's standard for establishing business necessity requires a defendant to show (a) that the
practice at issue have a manifest relationship to the employment in question; (b) that there is a
compelling need to maintain the practice; and (c) that there is no alternative to the challenged
practice. Applying this standard, the court found that the defendant pizza place failed to justify a
"no beard rule" which disparately impacted black males as necessary to its business.
Newark Branch ofNAAC.P v. Harrison. 940 F.2d 792 (3d Cir. 1991). Court addressed a
residency requirement for uniformed and non-uniformed employees of town police department
that had a substantial disparate impact on blacks. Court rejected Town's argument that the
requirement was justified for uniformed employees because (a) it promoted quick response to
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emergencies, (b) the employees would know the neighborhood better and would be more diligent
in protecting it due to their increased loyalty as residents, and (c) allowing non-residents to apply
would dramatically increase the number of applications received and would cost the Town too
much to process. The court also rejected the Town's argument that the residency requirement
was necessary for non-uniformed employees because residents would have more loyalty to the
police department. The court ultimately held that the residency requirement, which prevented any
blacks from being hired, was not justified as a business necessity or as job-related.
Nash v. Consolidated City of Jacksonville, 905 F.2d 355, 358 (llth Cir. 1990), cert, denied, 498
U.S. 1098 (1991). City foiled to establish that examination qualification for firefighters was
justified as business necessity or as sufficiently job-related.
Stephen v. PGA Sheraton Resort. 873 F.2d 276 (11th Cir. 1989). Court held that business
justification existed for termination of non-English speaking employee since language barrier
prevented employee from adequately performing his job as a deliverer of supplies.
Chambers v. Omaha Girls Club. 834 F.2d 697 (8th Cir. 1987), reh'g denied en bane, 840 F.2d
583 (1988). Court held that "role-model" rule which banned single parent pregnancies among
staff members was justified by business necessity since there was a manifest relationship between
the Club's fundamental purpose (to provide girls with positive life options) and the rule.
Crcdzv. Alabama State University. 804 F.2d 682 (11th Cir. 1986). Assuming ASU's study leave
policy, which granted hiring preferences to current employees, caused a sufficiently substantial
disparate impact on women (since it tended to freeze the status quo), it was not justified as a
business necessity. The court held that ASU's argument, that the policy promoted a better
qualified staff, was not supported by competent evidence.
Davis v.Richmond. 803 F.2d 1322 (4th Cir. 1986). City's requirement that applicants for
apprentice engineer positions must have previous train experience, was not justified as business
necessity since persons without train experience could do well in apprentice program.
Azuilera v. Cook County Merit Board. 760 F.2d 844 (7th Cir. 1985), cert, denied, 106 S. Ct. 237
(1985). County requirement that its corrections officers have a high school diploma or
equivalency certificate was sufficiently job-related so as to justify any disparate impact on
Hispanics.
Davis v. City of Dallas. 777 F.2d 205 (5th Cir. 1985), cert, denied, 106 S. Ct. 1972 (1986).
Prerequisites for police academy applicants of (a) 45 semester hours of college; (b) no recent or
excessive marijuana use; and (c) no recent hazardous driving convictions were sufficiently job-
related because the prerequisites tend to ensure that police (a) will have "professionally maturity";
(b) will enforce laws in unbiased manner, (c) and will have safe driving habits. Court also
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reasoned that the prerequisites were justified because there is an extraordinary risk involved in
having unqualified police officers.
Hawkins v. Bounds. 752 F.2d 500, 502 (10th Cir. 1985). Court held that no business necessity
justified adverse impact created by employer's policy of assigning employees to temporary
positions and then weighing experience in these temporary assignments heavily when hiring for
permanent positions.
Merwinev. State Insf. of Higher Learninz Bd. of Trustees. 754F.2d 631 (5th Cir. 1985), cert.
denied^ 474 U.S. 823 (1985). Court held that requirement that applicants for faculty librarian
position hold master's degree was justified as business necessity.
Crawford v. Wester Elec. Co.. 745 F.2d 1373 (1 1th Cir. 1984), reh'g en bane denied, 751 F.2d
394. Employers wholly subjective employee evaluation system which had no written standards
for evaluation, no requirement that reasons for promotions be documented, and did not require
that decision makers keep written records of the quality and efficiency of employee's work was
not justified by business necessity.
Zahorikv. Cornell Univ.. 729 F.2d 85 (2d Cir. 1984). Court held that disparate impact caused by
university's professor selection criteria which included consideration of accomplishment and skills
in scholarship as judged by peers was justified since these selection criteria were job-related.
Carpenter v. University of Wisconsin Svs. Ed. O1 'Resents. 728 F.2d 911 (7th Cir. 1984). Court
found that tenure criteria which included demonstration of reasonable likelihood of future growth,
performance in teaching, research and scholarly writing, service to the community, and at least a
minimal level of competence were job-related.
Caviale v. Wisconsin Dev 't of Health and Social Serv. . 744 F.2d 1289, 1294 (7th Cir. 1984).
Court held that the disparate impact on women caused by State's policy of hiring only persons
who participated in a Career Executive Program was not justified because policy was not job-
related.
Wright v.Olin Corp.. 697 F.2d 1 172 (4th Cir 1982). Court subjected employer's fetal protection
policy to a disparate impact analysis. (NOTE: Fetal protection policies are now usually analyzed
under the disparate treatment standard.) Court held that the defendant could show aprimafacie
business necessity defense with proof that (1) the risk of harm which the policy attempts to lessen
or eliminate must be sufficiently compelling to overcome the disparate effect which the practice
causes, and (2) the policy effectively avoids the harm and is reasonably necessary to avoid the
harm The Court noted that the defendant must prove a business necessity objectively;
defendant's belief that the policy is necessary is not sufficient. However, defendant is not required
to show a general consensus among experts on the degree of risk of harm and necessity of the
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policy to address the risk, but only "a considerable body of opinion" such that "an informed
employer could not fail to act on the assumption that the opinion is an accurate one."
Bonilla v. Oakland Scavenger Co.. 697 F.2d 1297,1303 (9th Cir. 1982), cert, denied, 467 U.S.
1251 (1984). Court found that nepotism is not a legitimate business justification for policy
limiting share ownership to employees of Italian ancestry who were related to or were close
friends of current share holders and then giving better jobs and more hours to the shareholder
employees which had a disparate impact on black and Spanish-sumamed employees.
Wambheim v. J.C. Permev. Inc.. 705 F.2d 1492, 1494 (9th Cir. 1983), cert denied, 467 U.S.
1255 (1984). Court held that employer's policy of providing medical care coverage to spouses
only if the employee was a head of household (the employee earns more than 50% of the
combined family income) which disparately affected female employees (far fewer female
employees qualified as a head of household than did male employees) was justified as business
necessity because the policy sought to provide medical insurance to employees most in need of
coverage (the spouse who earns more than 50% of the family's combined income will usually
have the better medical policy thus the only employees who need spouse coverage are those who
earn more than his/her spouse) while keeping costs of the plan as low as possible.
Colby v. J.C. Pennev Co.. Inc.. 811 F.2d 1119 (7th Cir. 1987). Seventh Circuit criticized Ninth
Circuit's finding in Wambheim that business justification existed for Penney's "Head of
Household" policy. The Seventh Circuit argues that if Penney is correct in assuming that an
employee who earns less than his/her spouse does not need coverage since he/she would be
covered under the plan of his/her higher paid spouse, the employee would not elect coverage
anyway, and thus the cost of the medical program would not be affected by abrogating the head
of household rule. However, since the parties had not addressed the issue of business necessity,
court did not decide the issue.
Chrisnerv. Complete Auto Transit. Inc.. 645 F.2d 1251 (6th Cir. 1981). The district court
rejected the defendant's business necessity defense for a two-year experience hiring requirement
because although the defendant showed a compelling business necessity for the employment in
question, the defendant had not shown the unavailability of alternative hiring practices which
would have less of a disparate impact. The Sixth Circuit reversed on the grounds that the lower
court improperly placed burden of proving the existence of an AEP on the defendant. The Sixth
Circuit explained that the district court "unjustifiably collapsed the three-step [disparate impact]
test employed in Griggs into a two-step examination in which the defendant was burdened with
proving ... that its hiring requirements would have the least disparate impact of all conceivable
requirements which satisfactorily measure applicants for employment," making the third step
superfluous. The Sixth Circuit noted that although many court opinions interpret "business.
necessity" to require that the challenged practice is absolutely necessary or inherently essential,
this interpretation has not been adopted by the Supreme Court. Instead, the Supreme Court's
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articulation of the business necessity test in Griggs [manifestly related to employment and
necessary to safe and efficient job performance] should be followed. The Sixth Circuit expounds
on the Griggs standard stating: "For a practice to be necessary... it need riot be the sine qua non
of job performance; indispensability is not the touchstone. Rather, the practice must substantially
promote the proficient operation of the business."
Burwell v. Eastern Airlines, 633 F.2d 361 (4th Cir. 1980), cert denied, 450 U.S. 965 (1981).
Court held that airline's policy of forbidding flight attendants to fly while pregnant was business
necessity and job-related since it promoted goal of passenger safety which goal was sufficiently
compelling to overcome the disparate impact.
Grant v. Bethlehem Steel Corp.. 635 F.2d 1007, 1019 (2d Cir. 1980). Court held that nepotism
was not legitimate business justification for policies which had a disparate impact on protected
groups by maintaining the status quo.
Horace v. Pontiac. 624 F.2d 765 (6th Cir 1980). Mandatory height requirement of 5ft Sin for
police officers was not justified by business necessity. Court rejected employer's argument that
requirement was necessary since there was a greater likelihood that a shorter police officer would
be assaulted on the street than would a taller one.
Parson v. Kaiser Aluminum & Chemical Corp.. 575 F.2d 1374, 1189 (5th Cir. 1978), reh'g
denied, 583 F.2d 132, cert, denied, 441 U.S. 968 (1978). To establish business necessity,
defendant must show (1) that practice is essential to goals of safety and efficiency, and (2) there is
no acceptable alternative that will accomplish these goals equally well with a lesser differential
racial impact. Court remanded case for determination under this standard.
Spurlockv. United Airlines. Inc. 475 F.2d 216 (10th Cir. 1972). Prerequisites for commercial
pilot training of: (a) a commercial pilot license, (b) 500 logged flight time, and (c) college degree
was justified as job-related since pilots require a high degree of skill, and an unqualified pilot
causes a significant risks. The court stated: "When a job requires a small amount of skill and
training, and the consequences of hiring an unqualified applicant are insignificant, the court should
examine closely any pre-employment standards which discriminate against minorities [But]
when a job clearly requires a high degree of skill and the economic and human risks involved are
great, employers bear a corresponding lighter burden to show that its employment criteria are job-
related."
White v CarolwnPaperboardCo.. 564 F.2d 1073 (4th Cir. 1977) and Pettway v. American Cast
Iron Pipe Co., 576 F.2d 1157 (5th Cir. 1978), reh'g denied, 581 F.2d 267 (1978), cert^denied
439 US 1115 (1979) Employer's policy of promotion based on "lines of progression justified
as business necessity where employer can show by competent evidence that progression was
functionally related to job.
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Title IX
Cases discussing the justification issue under Title EX do not set out a standard for what
might justify a disparate impact. Rather, the few cases that address the issue merely reject the
specific argument of Defendants attempting to justify the disparate impacts found. The message
seems to be that nothing can justify a disparity under Title IX.
Roberts v. Colorado State Univ.. 814 F. Supp. 1507 (D. Colo. 1993), affd in part andreversed
on other grounds, 998 F.2d 824 (10th Cir 1993), cert denied, 510 US 1004, 126 L. Ed. 470
(1993). Court held that school's financial crisis did not justify gender discrimination under Title
IX.
Faviav. Indiana Univ. of Pa.. 812 F. Supp. 578 (W.D. Pa. 1993), affd, 7 F.3d 332 (1993).
Court held that school could not justify elimination of women's gymnastics program by showing
that NCAA did not sponsor a women's gymnastic championship.
Women Prisoners of District of Columbia Pep't of Corrections v. District of Columbia. 877 F.
Supp.634 (D.D.C 1994), vacated in part, modified in part on other grounds, 899 F. Supp. 659
(D.D.C. 1995), vacated, in part, on other grounds, remanded, (B.C. Cir. 1996), cert, denied, 137
L. Ed.2d 701 (1997). Disparity between education and work programs available to male and
female prisoners was not justified by the following purported reasons: (a) female prisoners might
need greater supervision if working along side of male prisoners; (b) female prisoners are more
often victims of sex abuse; (c) female prisoners have more problems with substance abuse; or (d)
female prisoners have greater responsibility for children.
STANDING
A. .What is the nature of injury required to maintain a Tide VI cause of action?
B. What is the nature of injury required for communities to maintain a Tide VI
cause of action?
Bryant v. N.J. Pep't of Transp.. 998 F. Supp. 438 (D.N.J. March 18,1998) Residents of minority
community alleged harm from construction of bridge and tunnel to facilitate access to the she of a
future casino was discriminatory in that their homes would be subject to condemnation. Plaintiffs
interests fall within zone of interests Title VI is designed to protect-/.e., persons being
discriminated against by the administration of a federally funded program. Court applied Supreme
Court rule from Nat 'I Credit Union rejecting the intended beneficiary doctrine. Court also relies
upon regulations promulgated by DOT.
Sandoval v. L.N. Hasan. 1 F. Supp. 2d 1234 (M.D. Ala. 1998). Plaintiff challenged Department
of Public Safety's policy of administering driver's license examination in English only. Court
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applied the Lujan standing test and found that Plaintiff suffered particularized injury, that a causal
connection exists between injury complained of and Defendants' actions, and that plaintiff's injury
is capable of redress via a favorable court decision. Court states that plaintiff was an intended
beneficiary, and thus the confusion caused by Nat'l Credit Union does not affect plaintiffs
standing.
Jackson v. Katv Independent School Dist.. 951 F. Supp. 1293 (S.D. Tex. 1996). Parents allege
school district discriminated against biracial student in adverse discipline administered; parents
lacked standing to assert damages under Title VI in their own right, as they were not intended
beneficiaries of or participants in federally funded program, but could bring action on behalf of
their son who, as intended beneficiary of school district, had standing to assert claim of racial
discrimination under Title VI.
Neighborhood Action Coalitions v. City of Canton. Ohio. 882 F. 2d 1012 (6* Cir., 1989).
Citizens and association allege inferior provision of services to minority neighborhoods resulting
in diminution of property values and challenges application of HUD Block Grants. Residents had
standing to sue under Title VI in their own right, while organization had standing to seek
injunctive relief, but did not have standing to seek damages.
De Jesus-Keolamphu v. Village ofPelham Manor. 999 F. Supp. 556 (S.D.N.Y., 1998).
Residents of neighborhood challenge placement of residential home for mentally retarded.
Residents contend that mentally retarded residents would be disadvantaged by being located in a
minority community. Quotes from Supreme Court precedent that plaintiffs may not claim
standing to vindicate the constitutional or statutory rights of third parties unless 1) third parties
have suffered an "injury in fact," 2) plaintiff has a "close relation" to the third parties such that the
plaintiff will effectively represent the third parties' interests, and 3) the third parties are hindered
in their ability to protect then" own interests. The court did not apply the Supreme Court's
rejection of the intended beneficiary doctrine in National Credit Union, supra.
Alabama State Univ. v. Baker & Taylor. 998 F. Supp. 1313, 1315 (M.D. Ala. 1998) State
universities are "state instrumentalities" and thus lacks standing to seek an injunction under Title
VI. See also Dekalb County School District v. Schrenko, 109 F.3d 680, 689 (11th Cir. 1997)
(school district, as political subdivision, cannot sue same state for breach of Title VI; also, for
standing, taxpayers must allege an injury in fact distinct from that suffered by all or a large class of
citizens under Worth v. Seldin, 422 U.S. 490 (1975)). But see City of Chicago v. Lindley, 66
F.3d 819, 828 n. 11 (7th Cir. 1997) (city has standing to raise Title VI because it has been harmed
directly by discriminatory funding formula, and because it is an advocate under a program specific
statute for its residents/beneficiaries).
Freedom Republicans. Inc.. v. Federal Election Comm 'n. 13 F.3d 412 (D.C. Cir. 1994).
Plaintiffs do not sufficiently allege a causal nexus between Federal agency actions and the
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allegedly discriminatory actions of recipient. Also, no adequate likelihood that injury could be
redressed.
Lor amore v. Illinois Sports Facilities Authority. 722 F. Supp. 443 (N.D. m. 1989). Residents of
area adjoining site selected for new baseball stadium alleged adverse impact on minority
neighborhood—i.e., forced from their homes because of increased living costs. Plaintiffs not
intended beneficiaries of federal tax exemptions for bonds sold by stadium authority.
Jcdmesv. Toledo Metro. Housins Authority. 758 F.2d 1086, 1100 (6th Cir. 1985). Plaintifis did
not establish standing under Title VI because they foiled to demonstrate a personal, particularized
injury inflicted by defendants by not demonstrating a substantial probability that but for
defendants' alleged violations, plaintiffs would have been able to obtain low-rent public housing
outside Toledo.
GENERAL TITLE VI BURDEN OF PROOF
Elston v. Taladeza County Bd ofEduc.. 997 F.2d 1394, 1407 (11th Cir. 1993), reh 'g en bane
denied, 1 F.3d 242 (11th Cir. 1993). Court recognized the following shifting burdens of proof for
a disparate impact case brought pursuant to Title VI regulations:
"A plaintiff must first demonstrate that a facially neutral practice has a disproportionate
adverse effect on a group protected by Title VI. If the plaintiff makes such a showing, the
defendant then must prove that there exists a substantial legitimate justification for the
challenged practice in order to avoid liability. If the defendant carries this burden, the
plaintiff will still prevail if able to show that there exists a comparably effective alternative
practice which would result in less disproportionality, or that the defendant's proffered
justification is a pretext for discrimination." Citing Georgia State Conference of Branches
ofNAACPv. State of Georgia, 775 F.2d 1403, 1417 (llth Cir. 1985).
The court also noted that "in deciding Title VT disparate impact claims we borrow from standards
formulated in Title W disparate impact cases," and that although Wards Cove shifted the burden
of persuasion on the issues of the justification prong to the plaintiff, the Civil Rights Act of 1991
shifted the persuasion burden of the justification prong back to the Defendant. Thus, the court
implies that all Title VI cases decided after the effective date of the Civil Rights Act of 1991
should follow the Act's burden of proof allocations.
Youne v. Montgomery County. 922 F. Supp. 544 (M.D. Ala. 1996). Court, in education context,
recognized the following shifting burdens of proof for a disparate impact case brought pursuant to
Title VI regulations:
"Initially, a plaintiff must show by a preponderance of the evidence that a facially neutral
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educational practice has a racially disproportionate adverse effect. Georgia State
Conference of Branches ofNAACP v. State of Georgia, 775 F.2d 1403, 1417 (llth Cir.
19§5). If the plaintiff makes such a showing, the burden shifts to the defendant to prove a
valid justification for the practice. Id. Should the defendant prove a valid justification, the
plaintiff may still prevail by proffering an equally effective alternative practice which
results in less racial disproportionality or by presenting evidence that the legitimate
practice is a pretext for discrimination. See id."
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Request from Tide VI Committee
Jurisdictional Legal Issues Warranting Further Background Information
I. Disparate Impact
A- What constitutes "disparity": how much must the difference be?
1. prior Title VI precedent (outside environmental area)
a. judicial decisions
b. agency guidance/decisions
2. prior Title VH precedent
3. prior Title IX precedent (?)
4. other analogous areas of federal civil rights law
B. What constitutes relevant "impact": must it be kind of impact that is the primary
focus of the permitting agency or can it be any impact that would be proximatelv
caused by the facility's operation (i.e., can it extend to social and economic
concerns that result from the permitting facility but are not the authorized basis of
the permitting authority's decision whether to grant a permit for the activity)
1. prior Title VI precedent (outside environmental area)
a. need not involve a "permit"
b. issue arises anytime a federally-funded entity disburses the benefits
of that federally-funded program (like awarding of grants,
construction of facilities)
2. prior Title VII precedent ("terms and conditions of employment"?)
3. prior Title EX precedent (?)
4. other analogous areas of federal civil rights law (statutory and
constitutional)
5. NEPAandSEPAs
n. Mitigation
A. Is the only relevant mitigation that which directly reduces the disparate impact
itself?
1. prior use in other areas of civil rights law
2. prior use in other areas of environmental law
3. prior use in any other area of law .
B. If answer to "A" is no (i.e.. tradeoffs need not be so direct), what kind of guidance
exists from other areas of law (SEPs?) for how tightly (or broadly) the nexus must
be?
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C. What is the role of mitigation?
1. Must states use mitigation before attempting to show "legitimate"
justification for the disparity?
2. Can it be used to justify a "legitimate" justification for the disparity?
HI Justification
A. What legal precedent is there from other areas of civil rights law for "justifying"
what would otherwise be an impermissible disparity?
1. Title VI or Title VH ("business necessity," etc.)
2. equal protection? (substantially related to compelling state interest and no
less restrictive alternative)
3. any other precedent in constitutional/statutory civil rights law
B. If justifications are valid, what precedent exists for discerning legitimate scope?
1. emergency
2. public health
3. national security
4. economic profit?
5.
IV. Native American
A. Are tribal members individuals protected from discrimination by Title VI?
B. Are tribes the recipients of federal funds subject to Title VTs nondiscrimination
mandate?
V. Standing
A. What is the nature of injury required to maintain a Title VI cause of action?
B. What is the nature of injury required for communities to maintain a Title VI cause
ofaction?
VI. General Questions of Proof (for I-HI)
A. What difference is there between proving prima facie case and actual proof of
discrimination?
B. What level of evidence is used to decide?
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Appendix K: Draft Preliminary Report on
Incentives Prepared for the NACEPT
12/1/98 DRAFT Committee on Reinvention
NACEPT Reinvention Committee
Draft Preliminary Report on Incentives
(Communities and Individuals)
September 28-29,1998
Introduction
EPA's Reinvention efforts are part of an overall strategy aimed at making the federal
government work better, cost less, and get better environmental results. At EPA, reinvention
means streamlining and innovating within existing programs, but it also means testing more
integrative, holistic approaches with the potential to better address unresolved environmental
problems.
As part of its reinvention efforts, EPA is interested in exploring the use of incentives for
achieving greater environmental stewardship. Traditionally, EPA has relied upon regulatory
approaches that are often viewed as disincentives or negative incentives. There are, however,
positive incentive structures, as well, that can be used to motivate environmental improvements
on the part of businesses, communities, states, and individuals. While a number of EPA
programs have been increasing their reliance on different types of incentives, there is no
explicit conceptual framework or policy regarding how incentives are employed or relate more
broadly to the Agency's mission.
Charge to the NACEPT Committee
EPA has asked the NACEPT Committee on Reinvention to advise the Agency on its use of
incentives. The committee's charge includes helping the Agency understand how incentives
can be used most successfully to inspire industry, communities, and individuals to go beyond
mere compliance with existing regulations and to begin the process of addressing outstanding
environmental problems. In particular, EPA is interested in the following questions:
• What opportunities exist for EPA to use incentives to promote environmental stewardship
in industry, states, local communities, and the general public? (i.e., what is needed to create
an incentive structure that will drive continuous environmental improvement?)
How can EPA evaluate the effectiveness of incentives to encourage environmental
stewardship that lead to improved environmental results?
What can EPA do to ensure that incentives promote and enhance public confidence?
•
How can EPA measure the impact that incentives have on public confidence?
•
What criteria should be used to decide whether the use of incentives is appropriate?
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How can the concept of performance ladders be used to tailor incentives most effectively?
Definition of Incentives
EPA defines incentives very broadly. Anything that motivates a company, an individual, a
community, a state, or any other organization or institution to make changes in the direction of
improved environmental protection is considered an incentive. Within this context, incentives
can include both negative and positive motivators. Negative incentives may include penalties,
fines, or even criminal prosecution. Positive incentives are often harder to define and
categorize, but may include such things as public recognition and certification, environmental
information and education, regulatory flexibility, permit expedition, or compliance assistance.
The Committee has decided not to devote substantial effort to developing precise definitions or
taxonomies for incentives. Both EPA and the Committee agree that the primary issue of
interest is how EPA can better employ what are generally viewed as positive incentives.
However, the Committee would note that positive incentives usually cannot and should not be
separated from negative incentives. In many instances, the negative incentives embodied in
traditional regulatory requirements, in fact, create the opportunity to establish positive
incentives. For example, incentives such as expedited or flexible permits, are possible only
because the regulatory system requires such permits in the first place. Secondly, positive and
negative incentives must be viewed in tandem because the Agency needs both kinds. The
value and effectiveness of these various incentives may depend upon the industry sector, the
level of motivation and knowledge, the environmental problem to be solved, or a variety of
other factors.
Committee Overview
The Committee has agreed to structure its deliberations by focusing on the use of incentives in
four different arenas: communities, individuals, industry, and states. Separate meetings will be
devoted to each of these sectors, with presentations at each meeting that offer information and
perspective from a variety of different programs and experiences. The Committee's schedule is:
September 28,1998 Individuals
September 29, 1998 Communities
December 8-9, 1998 Industry
March 1999 States
In general, it should be noted that the Committee supports EPA's efforts to seek opportunities
to use incentives because the Committee believes that incentives can be useful tools for
improving environmental quality when used within the existing regulatory framework, as a
complement to the regulatory system, and in addressing environmental problems that are not
amenable to regulatory approaches.
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This report presents the Committee's preliminary conclusions regarding EPA's use of
incentives for individuals and communities. These two sectors were the focus of the
Committee's September 28-29, 1998 meeting. In the future, the Committee will provide
recommendations regarding EPA's use of incentives with industry and states, as well as a more
comprehensive conceptual framework that addresses the relationship among incentives of
various types.
Incentives for Individuals
General Conclusion: There are opportunities that EPA should pursue to use incentives to help
individuals make the connection between their behavior and environmental results.
The committee concludes that in pursuing the use of incentives for individuals, EPA should:
1. Understand what motivates individual behavior
EPA has traditionally focused its attention on industry and businesses that it regulates. The
Agency is beginning to be more sophisticated in understanding what motivates businesses to
change their behavior. However, there is less attention being paid to understanding what
motivates individuals. The large number of individuals in the U.S. and their cumulative
environmental impacts make them an important population to recognize. Because of their
importance, the Agency needs to begin to understand what motivates individuals to both learn
and act. In particular. EPA should involve behavioral scientists in the design of its
incentive programs and incorporate the lessons learned from behavioral research. Funds
spent on social science research at EPA is insufficient; more funding is needed to research
the avenues that might be used to motivate individuals. Don't assume you know what
motivates people; ask them.
It is important for EPA to think of the individual as a consumer. To a large extent, individuals
make decisions as consumers, based on the value that they receive for a certain product or set
of products. As a group, individuals as consumers play a large role in influencing
companies from which they buy. Thus, if EPA can influence decisions that individuals
make as consumers, it can also influence industry.
Consumers gain information about products from the products themselves. They gain
information about its value from the price of the product and from its label. One way EPA can
influence consumers is by affecting labels on the products that they buy. Making adequate
information available on a label is one way to motivate consumer choices. Through the
Consumer Labeling Initiative, EPA's Pollution Prevention Division has found that an effective
way to determine how to motivate consumers with labels and other information is to hold
panels and focus groups composed of consumers.
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One important lesson from the Consumer Labeling Initiative is that motivating information is
effective only if it comes from sources that individuals trust. For example, private citizens tend
to trust people and institutions with similar value sets - their churches, their neighbors, etc.
They may not trust government agencies or business advertisements. Therefore, EPA should
consider how to deliver information to individuals using sources that they trust.
One example of identifying motivators for individuals comes from the German recycling
system. Germans found two major incentives for individuals to recycle: fees for disposal of
garbage, and ease of recycling. One incentive captures those with no prior interest in recycling,
and one simply eliminates a barrier that exists for those who are already motivated.
Research conducted by Resources for the Future shows that individuals are more willing to pay
for individual pollution than societal pollution. For example, they are more willing to pay a tax
on the miles that they drive their own car than they are willing to pay a general air pollution
tax.
2. Recognize that education is more than information
Environmental education (EE) is one of the most direct ways to motivate private citizens to
take action or change their behavior in environmentally beneficial ways. EE can help motivate
individuals who are not already motivated to be environmentally responsible by making them
aware of new issues, or it can enable those who are already motivated to take action by giving
them information about how to act.
Environmental education needs to be more than just giving information. Many times,
information is out of context for the individual, they cannot make sense out of it, or it strikes
them as unimportant. EPA's Office of Environmental Education is working to broaden EPA
staffs understanding of how to present environmental information in a meaningful way.
Information is most helpful when it is accompanied bv suggested action strategies and
helps to develop investigative and problem-solving skills. EE should be based upon
recognition of the following continuum:
• awareness of issue
• information gathering
• attitude development
• problem solving and critical thinking
• participation in actions to help protect the environment
Simple information about environmental problems is usually not enough to help
individuals progress up this continuum and get to the point of taking action. EPA needs
to ensure that it provides education that is meaningful for individuals at all points of the
continuum.
3. Be sensitive to different needs and circumstances
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It is important to understand what types of information an individual needs to know and when
he or she needs to know it. Everyone does not have the same values, economic circumstances,
or level of knowledge. Thus, different people will want and need different information at
different times. People invariably pay more attention to information that they are looking for
than to unsolicited information that may appear irrelevant.
For example, focus group data from the Consumer Labeling Initiative (CLI) indicates that
consumers read product labels for information about danger that the product may pose to
themselves, their children, or their pets. They do not pay much attention to other information
about potential danger to the environment. Therefore, EPA needs to be aware of the type of
information that is important to different segments of society and convey information with that
in mind. Also, EPA needs to think about when consumers need to hear information about
products. They look for certain information when purchasing a product, but different
information when they are getting ready to use it. EPA needs to learn more about the needs of
consumers and ensure that those needs are met with appropriate information.
4. Work in partnership
EPA neither is, can, nor should be the sole motivator of human environmental stewardship
behavior. Other organizations or institutions are often more credible or effective messengers.
It is more likely that consumers will pay attention to information given to them by
organizations they are familiar with than it is that they will pay attention to information put out
by EPA. Therefore, EPA should seek opportunities to work with others and look for
"pathways" for offering incentives to individuals. For example, EPA teamed up with industries
who own household cleaning products to bring information to individuals hi a new way. In
addition, EPA can learn a great deal about marketing and reaching individuals from working
with businesses that depend upon good marketing for survival.
5. Build in evaluations
When new incentive approaches are initiated, whether on broad scales or as pilots, an
evaluation component must be included in the program. Evaluating whether incentives are
having the desired affect and whether there are unanticipated secondary results is critical. Not
only should such evaluations help to determine if the incentive is effective, but they should be
used to compare incentives to alternative approaches that could be used to achieve the same
goal.
In addition, understanding and communicating the efficacy of incentives will help to ensure
public confidence. Given that the use of incentives (particularly those that involve "rewards"
such as regulatory flexibility) can engender distrust, it is critical that EPA be able to
demonstrate the value of incentives in more than a theoretical way.
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6. Integrate incentives into packages
Incentives are not, in and of themselves, the best nor most effective approach to achieving
environmental goals. They should be integrated into comprehensive strategies and not used in
isolation. It is important to realize that incentives can be used in many different contexts.
There are opportunities to use incentives in both regulatory and voluntary programs. And there
are opportunities to use incentives to address both regulated and non-regulated areas (e.g, urban
sprawl, climate change, individual resource consumption). It is the synergy of regulation,
reward, and education that must be recognized and used to create more effective integrated
approaches.
7. Acknowledge and challenge constraints
EPA may often encounter constraints or limitations on its ability to employ incentives. Some
of those constraints may be legal, but others may be more subtle, coming in the form of agency
cultural aversions to innovation, administrative barriers, or lack of understanding and
knowledge. One of the specific examples of an administrative barrier that has come to the
Committee's attention are the OMB regulations regarding surveys. Requirements for
Information Collection Requests (ICRs) can be so onerous that they deter collection of
information regarding such things as consumer habits and motivational factors. In addition, the
traditional command-and-control culture at EPA can be a barrier to effectively employing other
incentive-based approaches. Whether the constraint is an internal one related to EPA culture or
whether it is an externally imposed constraint, EPA should explicitly acknowledge such
limitations and seek ways to either eliminate or change them.
Incentives for Communities
General Conclusion: EPA should pursue opportunities to use incentives that will help
communities link solutions to environmental problems with the achievement of economic,
quality of life, or other community goals.
Most communities in the U.S. are faced with myriad issues demanding their attention: building
the tax base, employment, crime, housing, schools, public health, water and wastewater
treatment, waste disposal, roads .... environmental concerns are but one among many problems.
For several reasons, the most promising avenue for making progress on environmental
concerns lies in solutions that can help communities address environmental and other concerns
in tandem with other community issues.
First, many environmental problems arise from other pressures facing a community. For
example, proposals for residential or industrial development may spur concerns about loss of
habitat or lack of adequate drinking water or sewage facilities. Alternative proposals that allow
development while ameliorating environmental concerns can help a community achieve
multiple goals.
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Second, most community organizations and decision-making processes are not oriented around
environmental issues. Utilizing existing community structures, organizations and processes to
address environmental and other issues can be more efficient than trying to create new forums
for discussion and decision-making, and can link environmental solutions to other goals.
Finally, citizen involvement is key to effective environmental decision-making. More citizens
will be involved, and will be involved more productively, if they believe they are helping to
solve the key issues of concern to their community.
In using incentives to help communities integrate environmental concerns with other
community issues, EPA should:
1. Promote and support "bridge" organizations
Given the vast number of local units of government in the U.S., EPA cannot possibly be
directly involved in many of those communities, nor should it try to be. EPA can be most
effective if it focuses on working with "bridge" organizations — states, regional governmental
organizations, and national and regional public interest organizations — that already have
connections to community organizations.
EPA's primary role in working with bridge organizations, or directly with some communities,
should be that of facilitator. EPA should not lead the process nor set the agenda. As facilitator,
EPA should focus on providing assistance (environmental data in useful formats, analysis
tools, information on different technologies and options, etc.) that will support, rather than
guide, community decision-making.
Many projects have demonstrated that collaboration across all levels of government can work,
and in fact is necessary to successfully address community environmental concerns. For
example, EPA has supported a series of projects in states and localities to compare risks and set
environmental priorities. These "comparative risk" projects typically involve representatives
from all relevant state and local agencies, as well as public interest organizations and members
of the public. By involving all levels of government in a project - from the problem
assessment phase to the final phase of implementation - EPA can support a strategic process
that harmonizes with regulatory requirements and is more likely to lead to lasting solutions.
To support community decision-making, EPA should look for opportunities to work with
existing organizations. Such organizations can provide links to local communities and can
serve as channels for environmental education and information. It will often be important to
work with community-based organizations that focus on issues such as housing, crime, or
economic development, to identify and address environmental issues as well. For example,
community leaders in a Boston neighborhood brought their concerns about drug-dealing and
other criminal activities occurring on vacant lots to the attention of a local environmental
justice advocacy group — which led to a coordinated effort to address the problem.
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2. Be responsive to the varying levels of understanding and motivation in different
communities.
Levels of environmental understanding and motivation for action vary widely from community
to community. EPA and bridging organizations need to respect these differences and develop
educational approaches, analysis tools, and information in useful formats, that are appropriate
for differing community needs.
Many communities are not yet actively dealing with significant environmental issues. In such
circumstances, EPA can help to build awareness about environmental issues and potential
solutions by linking environment issues to the communities' other concerns. EPA can provide
and encourage the use of assessment tools, such as simple mapping techniques, geographic
information systems, and risk assessment methodologies. EPA can support educational
initiatives...
Communities that are already motivated to tackle their environmental issues may need different
types of incentives to take constructive action. EPA should support these communities in
addressing the needs they have identified. Information and tools that will help them analyze
problems and evaluate options are likely to be most valuable.
3. Focus on environmental performance and results.
As NAPA emphasized in its recent report on the future of environmental protection1,
environmental management approaches that focus on performance are superior to the more
prescriptive approaches that are typical of the current regulatory system. Performance-based
approaches encourage innovation and the development of more cost-effective solutions. In
supporting communities in their efforts to make sound environmental decisions, EPA should
focus on community goals and achievements — and should avoid imposing EPA's criteria for
success on communities.
Community decision-making involves both knowledge and judgment. EPA can be helpful in
building knowledge by educating and informing decision-makers, for example by providing
scientific, economic and other information about environmental problems. EPA can also
provide help with the process and analytical tools that communities can use to determine
priorities and set clear goals. But decisions about what problems are priorities, and what
solutions are appropriate, are made by the community blending information about
environmental issues with its values and judgements.
EPA needs to demonstrate a commitment to helping communities solve the problems of local
concern. In fact, EPA needs to acknowledge that sometimes EPA's media-based regulations
obstruct the achievement of solutions to cross-cutting problems, and EPA should be willing to
work to find ways to implement needed solutions. In many cases, EPA's media-based
organization (air, water, waste, toxics) still poses very real difficulties for solving the multi-
National Academy of Public Administration, Resolving the Paradox of Environmental Protection, 1997.
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media problems that communities are struggling with. EPA's regional offices need to develop
strong, cross-media capabilities for facilitating environmental problem-solving in communities.
EPA "field staff," permanently located in communities where EPA does not have a regional
office, can be useful in this regard.
In some cases, EPA is directly involved in communities, for example in making decisions
about cleaning up hazardous waste sites. In these situations, EPA needs to ensure that the
decision-making process includes meaningful public involvement and is responsive to that
public input. The decision-making process must be transparent to the public and there must be
a commitment to implementing the decisions made in public processes.
4. Provide information and education that can help communities solve environmental
problems.
As several of the previous recommendations suggest, provision of information and education is
perhaps the most important incentive that EPA can provide to communities to make
responsible environmental decisions. EPA is making significant strides to improve the
accessibility of the information it collects, but greater effort is needed to make this — and more
— information available to environmental decision makers in communities.
Communities need to know the potential environmental impacts of their actions, the potential
alternatives, and the costs and benefits of different alternatives. What are the environmental
impacts of continued development of greenfields? What are the alternatives to that
development? For many communities, developers are the only source of information regarding
the costs and benefits of development. EPA, working with partners, could serve as a source or
clearinghouse of information for local communities on alternatives, and costs and benefits,
addressing issues such as the relative costs of new infrastructure to support different residential
development densities. Also, EPA could provide accurate cost information on alternatives to
help communities answer questions like, "Can subsidies for water-conserving appliances
reduce consumption sufficiently so that a community could avoid construction of a new water
or wastewater treatment plant?"
EPA should provide information about the environment in ways that are meaningful to
communities. The definition of "environment" in a community may differ significantly from
EPA's definitions under the Clean Air Act, Clean Water Act, Superfund, etc. EPA can support
communities in efforts to adopt and publicize environmental indicators that measure what is
truly important to a community. For example, in Seattle, polls have consistently demonstrated
that citizens are willing to pay for efforts to restore salmon in Puget Sound. Salmon and
related environmental quality measures are important environmental indicators for that
community and can be used to inform the public about progress hi protecting their
environment
EPA can also provide tools that help communities make sense of information. For example,
simple mapping or more complex GIS tools can help a community develop a picture of their
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community, including the location of environmentally sensitive areas and potential threats.
Creating such a picture can help a community develop a sense of priorities and spur action.
5. Develop and use a broad range of incentives appropriate for different community
circumstances.
While providing information that communities can use is critical, by itself, information is
insufficient. EPA needs to develop a range of incentives that can be made available to
communities. For example:
Funding is always at the top of the list for cash-strapped localities struggling to solve
environmental problems. Beyond the state revolving funds for water and wastewater treatment,
and the Superfund for clean-up of hazardous waste sites, EPA has very limited funds that can
go directly to communities. Most frequently, EPA has small amounts of funding that can be
used to fund projects in a handful of communities. An important lesson is that even a small
amount of funding is valuable to a community, in so far as it can often be used as seed funding
to gamer additional funding from other sources.
Training is another potential incentive that EPA should emphasize. EPA could sponsor
training targeted to personnel in potential "bridge" organizations on how to support informed
community decision-making on environmental issues. Such training should be broad-based
and include all stakeholder perspectives. (In addition to offering training as an incentive to
community organizations, it is important that EPA also train its own staff who deal with
community leaders. That training should include, among other things, how to identify and help
empower community-based environmental leaders.)
Technical assistance. EPA should focus more of its staff resources on providing assistance to
communities to promote understanding environmental problems and options for solving them.
Such assistance can be particularly important for community-based advocates and concerned
members of the public who are impacted by agency decision-making, but lack adequate
resources or information to be meaningfully engaged hi the decision-making process.
Dependable partnerships. Once EPA gets involved in a specific community, it needs to remain
a dependable partner throughout the process.
Support networks of change agents. An important outgrowth of EPA's comparative risk
projects has been the development of "peer networks" so that community practitioners can
support one another and share lessons learned.
Flexibility. Allowing communities to identify and solve environmental problems in their own
way can, itself, be an incentive.
An instructive example is provided by the new directions underway in The Nature
Conservancy, a non-profit organization dedicated to the preservation of biodiversity.
10
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Traditionally, TNC has focused on buying land to create nature preserves in ecologically
valuable areas. Recently, TNC has recognized that this approach is insufficient — its nature
preserves are affected by what goes on in the surrounding watersheds, and buying entire
watersheds is not a feasible solution. TNC is now turning to community-based environmental
protection, and is working with communities through strategic planning processes to ensure
environmentally and economically compatible development.
What are the lessons for EPA here? A "command and control" approach is insufficient for
protection of the environment. To complement national programs, a collaborative approach
with communities offers great promise for improving environmental protection. Working as
partners with communities means integrating environmental concerns with local concerns
about economic security and quality of life. And, reinvention of a large national organization
is possible — and necessary — if we are to realize continued gains in protection of our health
and our natural resources.
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Appendix L: NEJAC Public Participation
Guidelines 000214
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National Environmental Justice
Advisory Council
-T-
Dear Colleagues and Friends:
The National Environmental Justice Advisory Council (NEJAC)
considers public participation crucial in ensuring that decisions affecting human
health and the environment embrace environmental justice. To facilitate such
public participation, the NEJAC requested that its Public Participation and
Accountability Subcommittee develop recommendations for methods
by which EPA can institutionalize public participation in its environmental
programs. In 1 994, the Public Participation and Accountability
Subcommittee developed the Model Plan for Public Participation. The
plan is based on two guiding principles and four critical elements. The
NEJAC adopted the model plan as a living document to be reviewed
annually and revised as needed.
We are pleased to send you a copy of the Model Plan for Public
Participation. We also have enclosed the Core Values for the Practice of
Public Participation developed by interact: The Journal of Public Participation
and the Environmental Justice Public Participation Checklist developed by the
Interagency Working Group on Environmental Justice for use by Federal and
State agencies. We invite you to consider the model plan as a tool that will
guide the public participation process. Please share this document with others
who may be interested in encouraging broader community participation in the
environmental decision-making process.
Please forward any written comments to:
NEJAC Public Participation and Accountability Subcommittee
c/o U.S. Environmental Protection Agency
Office of Environmental Justice
401 M Street, SW (Mail Code: 2201 A)
Washington, DC 20460
Phone: (202)564-2515
Hotline: (800)962-6215
Fax: (202)501-0740
Internet E-mail: environmental.justice.epa@epamail.epa.gov
Sincerely,
Richard Moore, Chairman
National Environmental Justice
Advisory Council
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BACKGROUND
The National Environmental Justice Advisory Council (NEJAC) ii i federal advisory
committee that wai established by charier on September 30, 1993, |o provide
Independent advice, consultation, and recommendations to the Administrator ol the U.S.
Environmental Proteclion Agency (EPA) on matters related to environmental Justice.
The NEJAC is made up ol 25 members, and one designated federal official (DFO), who
serve on a parent council that has six subcommittees—Enforcement, Health and Research,
Indigenous Peoples, International, Public Participation and Accountability, and Waste and
Facility Siting. Along with the NEJAC members who fill subcommittee posts, an additional
34 Individuals serve on the various subcommittees. The NEJAC has held meetings in
locations across the United States, Including Washington, D.C.; Albuquerque, New
Mexico; Herndon, Virginia, Atlanta, Georgia/ Arlington, Virginia; and Detroit, Michigan.
As a federal advisory committee, the NEJAC is bound by all requirements ol the Federal
Advisory Committee Act (FACA) ol October 6, 1 978. Those requirements include:
• Members must be selected and appointed by EPA
• Members must attend and participate fully in meetings of the NEJAC
• Meetings must be open to the public, except as specified by the Administrator
• All meetings must be announced in the Federal Register
• Public participation must be allowed at all public meetings
• The public must be provided access to materials distributed during the meeting
• Meeting minutes must be kept and made available to the public
• NEJAC must provide independent judgment that is not influenced by special
interest groups
Each subcommittee, foimed to deal with a specific topic and to facilitate the conduct of the
business ol the NEJAC, has a DFO and is bound by the requirements ol FACA.
Subcommittees of the NEJAC meet independently ol the lull NEJAC and present their
findings to the NEJAC for review. Subcommittees cannot make recommendations
independently to EPA. In addition to the six subcommittees, the NEJAC has established a
Protocol Committee, the members of which are the chair of NEJAC and the chairs of each
subcommittee.
EPA's Office of Environmental Justice (OEJ) maintains transcripts, summary reports, and
other material distributed during the meetings. Those documents are available to the public
upon request.
Comments or questions can be directed to OEJ through the Internet. OEJ's Internet E-mail
address is: cnvlronmcnl«l.|uillci.cpi@cpimill.cpi.gov.
Executive summaries ol the reports of the NEJAC meetings aie available on the Inlemtt at
OEJ's World Wide Web home page http://ci.lncl.gOv/oec.a/oeJ.html.
TABLE OF CONTENTS
Background
The Model Plan for Public Participation ........................ 2
Core Values for the Practice of Public Participation
5
Environmental Justice Public Participation Checklist
for Government Agencies .......................................... 6
Acknowledgments ................................ inside back cover
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GUIDING PRINCIPLES
A. PUBLIC PARTICIPATION
I. Encourage public participation in all aspects of environmental
decision making.
Communities, including all types of stakeholders, and agencies should bt
seen as equal partners in dialogue on environmental justice issues. In
order to build successful partnerships, interactions must:
• Encourage active community paiticipation
• Institutionalize public participation
• Recognize community knowledge
• Utilize cross-cultural formats and exchanges
II. Maintain honesty and integrity in the process and articulate goals,
expectations, and limitations.
CRITICAL ELEMENTS
A. PREPARATION
I. Developing co-sponsoring and co-planning relationships with community
organizations is essential to successful community meetings. To ensure a
successful meeting, agencies should provide co-sponsors the
resources they need and should share all planning roles.
These roles include:
• Decision making
• Development of the agenda
• Establishment of clear goals
• Leadership
• Outieach
II. Educating the community to allow equal participation and provide a
means to influence decision making,
III. Regionalizing materials to ensure cultural sensitivity and relevance.
IV. Providing a facilitator who is sensitive and trained in environmental
justice issues.
B. PARTICIPANTS
I. As the NEJAC model demonstrates, the following communities should
be involved in environmental justice issues:
• Community and neighborhood groups
• Community service organizations (health, welfare, and others)
• Educational institutions and academia
• Environmental organizations
• Government agencies (federal, state, county, local, and tribal)
• Industry and business
• Medical community
• Nongovernment organizations
• Religious communities
• Spiritual communities
II. Identity key stakeholders, including:
• Educational institutions
• Affected communities
• Policy and decision makers (for example, representatives of
agencies accountable for environmental justice issues, such as
health officials, regulatory and enforcement officials, and
social agency staff).
C. LOGISTICS
I. Where:
• The meetings should be accessible to all who wish to attend
(public transportation, child care, and access for the disabled
should be considered).
• The meeting must be held in an adequate facility (size and
conditions must be considered).
• Technologies should be used to allow more effective
communication (teleconferences, adequate translation,
equipment, and other factors).
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II. men:
How:
The time ol day and year ol the meeting should accommoditf
the needs ol affected communities (evening and weekend
meetings accommodate working people, and caielul scheduling
can avoid conflicts with other community or cultural events)
An atmosphere of equal participation must be created
(avoid using a "panel" or "head table").
A two-day meeting, at a minimum, is suggested. The fiisl diy
should be reserved (01 community planning and education.
The community and the government should share leadership
and presentation assignments.
D. MECHANICS
Maintain clear goals by referring to the agenda/ however, do
not be bound by it.
Incorporate cross-cultural exchanges in the presentation of
information and the meeting agenda.
Provide a professional facilitator who is sensitive to, and
trained in, environmental justice issues.
Provide a timeline that describes how the meeting lits into the
overall agenda of the issues at hand.
Coordinate follow-up by developing an action plan and
determining who is the contact person who will expedite the
work products from the meeting.
Distribute minutes and a list of action items to facilitate
follow-up.
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H*
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CORE VALUES FOR THE PRACTICE
OF PUBLIC PARTICIPATION
1. People should have a say in decisions about actions which affect their lives.
8. Public paiticipation includes the promise that the public's contribution will
influence the decision.
3. The public participation process communicates the interests and meets the
process needs of all participants.
4. The public paiticipation process seeks out and facilitates the involvement of
those potentially affected.
5 The public participation process involves participants in defining how they
participate.
6 The public participation process communicates to participants how their input
was, or was not, utilized.
7. The public participation process provides participants with the information they
need to participate in a meaningful way.
Sot*t« ffttrtffl The Jou/njl of Public Pjiticipjtion, Volume 2, Number 1, Spiing 1996. /ritetjcttl
International Association of Public Participation Practitioners, a nun profit corporation
i/i 1990 to serve prdctiliorieil (hrouglioul the world seeding poetical experience designing
•nd conducting public involvement prugrdms.
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ENVIRONMENTAL JUSTICE
PUBLIC PARTICIPATION CHECKLIST
FOR GOVERNMENT AGENCIES
Please note that this checklist was developed by Federal agencies for use by Ftdtitl
and State agencies. It serves as an example of a process to be followed and don
not include regulatory requirements. Please contact the U.S. Environmental
Protection Agency Office of EnvironmentalJustice for more information about tnt
public participation process, within the regulatory framework.
Ensure that the Agency's public participation policies are consistent with the
requirements of the Freedom of Information Act, the Emergency Planning and
Community Right to Know Act and the National Environmental Policy Act.
2. Obtain the support of senior management to ensure that the Agency's policies
and activities are modified to ensure early, effective and meaningful public
participation, especially with regard to Environmental Justice stakeholders.
Identify internal stakeholders and establish partnering relationships.
3. Use the following Guiding Principles in setting up all public meetings:
• Maintain honesty and integrity throughout the process
• Recognize community and indigenous knowledge
• Encourage active community participation
• Utilize cross-cultural formats and exchanges
4. Identify external Environmental Justice stakeholders and provide opportunities
to offer input into decisions that may impact their health, property values and
lifestyles. Consider at a minimum individuals from the following organiialions
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Media/Press
Indigenous people
Tribal governments
Industry
White House
Religious groups
Universities and schools
as appropriate:
Environmental organizations
Business and trade organizations
Civic/public interest groups
Grassroots/community-based organizations
Congress
Federal agencies
Homeowner and resident organizations
International organizations
Labor unions
Local and State government
Identify key individuals who can represent various stakeholder interests. learn
as much as possible about stakeholders and their concerns through personal
consultation, phone or written contacts. Ensure that information-gathering
techniques include modifications for minority and low-income communities (for
example, consider language and cultural barriers, technical background, literacy,
access to respondents, privacy issues and preferred types of communications)
I 6. Solicit stakeholder Involvement early in the policy-making process, beginning in
I the planning and development stages and continuing through implementation and
oversight.
i 7. Develop co-sponsoring/co-planning relationships with community organizations,
I providing resources for their needs.
8. Establish a central point of contact within the Federal agency to assist in
information dissemination, resolve problems and to serve as a visible and
accessible advocate of the public's right to (mow about issues that affect
health or environment.
Regionalize materials to ensure cultural sensitivity and relevance. Make
information readily accessible (for example, access for the handicapped and
sight- and hearing-impaired) and understandable. Unabridged documents
should be placed in repositories. Executive summaries/fact sheets should be
prepared in layman's language. Whenever practicable and appropriate,
translate targeted documents for limited English-speaking population.
10 Make information available in a timely manner. Environmental Justice
stakeholders should be viewed as full partners and Agency customers. They
should be provided with information at the same time it is submitted for formal
review to Stale, Tribal and/or Federal regulatory agencies.
1 1. Ensure that personnel at all levels in the Agency clearly understand policies for
transmitting information to Environmental Justice stakeholders in a timely,
accessible and understandable fashion.
19. Establish site-specific community advisory boards where there is sufficient and
sustained interest. To determine whether there is sufficient and sustained interest,
at a minimum, review correspondence files, review media coverage, conduct
interviews with local community members and advertise in local newspapers.
Ensure that the community representation includes all aspects and diversity of the
population. Organize a member selection panel. Solicit nominations from the
community. Consider providing administrative and technical support to the
community advisory board.
13. Schedule meetings and/or public hearings to make them accessible and
user friendly for Environmental Justice stakeholders. Consider time frames
that do not conflict with work schedules, rush hours, dinner hours and other
community commitments that may decrease attendance. Consider locations and
facilities that ate local, convenient and represent neutral turf. Ensure that the
facility meets American with Disabilities Act Statements about equal access.
Provide assistance for hearing-impaired individuals. Whenever practical and
appropriate, provide translators for limited-English speaking communities.
Advertise the meeting and its proposed agenda in a timely manner in the
print and electronic media. Provide a phone number and/or address for
communities to find out about pending meetings, issues, enter concerns or
to seek participation or alter meetings agendas.
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I 14. Consider other vehicles to increase participation of Environmental Justice
stakeholders including:
• Posters and Exhibits
• Participation in Civic and Community Activities
• Public Database and Bulletin Boards
* Surveys
• Telephone Hotlines
• Training and Education Programs, Workshops and Materials
| 1 5. Be sure that trainers have a good undemanding of the subject matter both
technical and administrative. The trainers are the Ambassadors of this program.
If they don't understand — no one will.
16. Diversity in the workplace: whenever practical be sure that those Individuals that
are the decision makers reflect the intent of the Executive Order and come from
diverse backgrounds, especially those of a community the Agency will have
extensive interaction with.
I 1 7. After holding a public forum in a community, establish a procedure to
follow up with concrete action to address the communities' concerns. This
will help to establish credibility for your Agency as having an active role in the
Federal government.
j 1 8. Promote interagency coordination to ensure that the most far reaching aspects of
environmental justice are sufficiently addressed in a timely manner. Environmental
problems do not occur along departmental lines. Therefore, solutions require
many agencies and other stakeholders to work together efficiently and effectively.
I 1 9. Educate stakeholders about all aspects of environmental justice (functions, roles,
jurisdiction, structure and enforcement).
I 20. Ensure that research projects identify environmental justice issues and needs in
communities, and how to meet those needs through the responsible agencies.
I 21. Establish interagency working groups (at all levels) to address and coordinate
issues of environmental justice.
| 22. Provide information to communities about the government's role as it pertains
to short-term and long-term economic and environmental needs and
health effects.
I 23. Train staff to support inter-and inlra-Agency coordination, and make them aware
of the resources needed for such coordination.
I 24. Provide Agency staff who are trained in cultural, linguistic and community
outreacli techniques.
I 25. Hold workshops, seminars and other meetings to develop partnerships between
agencies, workers and community groups. (Ensure mechanisms are in place to
ensure that partnerships can be implemented via cooperative agreements, etc.)
| 86. Provide effective outreach, education and communications. Findings should be
shared with community members, with an emphasis on being sensitive and
respectful to race, ethnicity, gender, language, and culture.
| 97. Design and implement educational efforts tailored to specific communities and
problems. Increase the involvement of ethnic caucuses, religious groups, the
press, and legislative staff in resolution of Environmental Justice issues.
I 28. Assure active participation of affected communities in the decision-making process
I (or outreach, education, training and community programs -• including
representation on advisory councils and review committees.
29. Encourage Federal and State governments to "reinvent government" -- overhaul
the bureaucratic in favor of community responsive.
I 30. Link environmental issues to local economic issues to increase level of interest.
I 31. Use local businesses for environmental cleanup or other related activities.
I 32. Utilize, as appropriate, historically Black Colleges and Universities (HBCU) and
I Minority Institutes (Ml), Hispanic Serving Colleges and Universities (HSCU)
and Indian Centers to network and form community links that they can provide.
I 33. Utilize, as appropriate, local expertise for technical and science reviews.
I 34. Previous to conducting the first Agency meeting, form an agenda with the
I assistance of community and Agency representatives.
I 35. Provide "open microphone" format during meetings to allow community members
to ask questions and identify issues from the community.
Bibliography:
"Interim Report ol the Federal Facilities Environmental Restoration Dialogue Committee,"
February 1993, U.S. Environmental Protection Agency and the Keystone
Center.
"Community Relations in Superlund: A Handbook," January 1992, U.S. Environmental
Protection Agency, Documents# EPA-540-R-92 009and # PB92-963341.
DRAFT "Partnering Guide for DoD Environmental Missions," July 1994, Institute for
Water Resources, U.S.A.C.E.
"Improving Dialogue with Communities: A Short Guide for Government Risk
Communications," September 1991, Environmental Communications Research
Program, New Jersey Agricultural Experiment Station, Cook College, Rutgers
University.
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NOTES
10
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000222
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W»iiC|V.
(Mil 1IMUI.FAK. UI-JB-IJK. IMiiL pU
cod Iirtrartniuir f>»A
TliltAU P CutUDd. IO Irti, till* m
o»«r. VIU/IM H TI-IIIWAK. P^,, V MuU>, lir. im llihdN V.^U^MK DC
IttJimiMWIH !»II.IAX:NJJUIOa, UOil: •
n*to*y HlllM A. W«tucMt ^tiu EnvanAnvnt*! rrmMiiot\ Bu
.
Stiff M**in- (IA»I P ClKXllie, (IK) ID-Oil, tMu) K
June 15. 1998
To. Committee E-SO; Sfkcomttitt« E-SO 03
Frtnn BUIOuOedgc
ITEM?
RE
Redevdopmenl"
An toUtrvti*imi of lhiidocumeiilw«i ballot oliiJunnny. 1991 All commmfc recdwJ
on tlei bsllot mul uUilional suggdiore provided and apfrovtd M tuk group meetingi in
A|m1.1998, uu) May, \9V». were hompoi«led into tbe atttchn) tevistri, bultrjl tnK. We
krc noouiRKBl by t*c mivt, jxrnlvr cmtrihulUiM of nil ink grnip mtmbcrt tnd
oomMnu to the doanrntil. I btVevt Ibe outdcrd U wbttudl&D) hnprovtd in Ills recent
revisbn.
rlmM rMpimd by the rfue rhle iha»Ti on the baOol fbitn Conmadi received wfll b«
conritered rt out n«U t«tk poup metfnfl in Aiutti in Septtmba, t\t*M frrf ftw lo
eonttct re« 70J-716-3627, MileTiylw 20J-210-MI3. or Jim Rocoo I16-5M-6706, if
you htvt my queitfnu. W« look ftrwod to feeing you is Scptarber.
Appendix M: ASTM E-50.03 - Standard
Guide to the Process of Sustainable
o Brownfieids Redevelopment
o
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ro
GMr/tthij i CiMi/Ttf Suni»ili
70
i, ISniicn, Sftua 4/!m»n
ITEM
Staidard Guide to the Process of Sustainable Brownftelda
Tabki of Contents
1.0 SCOPE
2.0 REFERENCED DOCUMENTS
11 ASTMStafer*
9.0 TERMNOLOGY
4.0 SIGNIFICANCE AND USE
S.OSUSTAtNABLEBROVTNFJELDS REDEVELOPMENT PROCESS
e.OINTflATlON
tl UhUi PrMn
* I I Omen, Praqwt*^ Trantferat end Ucvcfcpcrt
6 1 J NrtTw-Frofil O^nintim
fe 1.4 Local &J-KIUJ ml
6.2 I O»rp,
TBnsfate pr DcntJpycf
6J.1
6 J J.I LocH Ocfmrorrrt
6 3.1 J f«4t»l Otntamert
« J < Unitm* kittUatiai
DEVALUATION
M Dtlcndbt P»)Kt VilbWlj
4
4
*
9
9
9
10
to
10
10
II
II
II
II
II
II
13
U
79
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7J Mraltfrtnt I»i<
7J I Itapcny Aomnmi
A-S
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7J.J tfcteralnlat RMHtf AwMlUrariuiJ Aetna AJkrwtlm
1 1 ) Mi* Cntmnkutn
7.J Mm** *„».** Urn, -0 Rotate.
7,4 riMtl*l M* AM!}*
8.0 TRANSACTION
III biiliuunuml UiMlrty OBTOM
1 l.llT)»mfen'iU«aiivB
I.I. 1.4 Ctonnm Ublaorc: rnuaian Im Ltabil«r
tl Mtab«7 nrf rn^fc^, AtnnM,
M *H«ntta| UrntW M, 8 REOCVEIJOPMENT
/W Unlurtaf Urn*
June 1, 16M
M
14
It
II
l(
l«
ir
17
17
17
IB
II
1*
II
19
n
Id
;o
n
11
11
21
11
it
it
14
14
14
M
M
A-* P
APPENDIX B - COtUKTUNmr IKTERACTION
• inn n )tji..w.
it»l«t trim « in Hj
u
27
*7
17
n
n
•-• M^nJ Aa^taK* rf btpmlMUtfe* to rnm
APPENDIX C - AOOrrtONAL (NFOflMATION RESOI/RCES
TM* (Soup rtelM Own
JuM I, 1MB
80
81
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I
a
en
CO
ASTM E-6U03
Stutdud Quid* to the PTOCMI of Surtalrutohi BrownfltId*
216 E 1SB-93
1.0 Scope
Ihb doeunwnt It to ad ei • | uida to all tMuihoUf r» \M* an kitavtl hi rodev^bpnort of •
BnMrrffeMs pwimty. The gutto Wsrttfle* impe«ro«n1» to BrownfiaMa (towtoprmnl ml
SUQQWNI aOTUnOna to IfcuHfau fe00>WOfWnV1TlL BOvk O^VerWnenl afro ClUIIIUIUnity QfOifll an)
conoemad wrth the qtflHty otBrtMMiffeW* redevaloemeftt and wt«l> to witurv Hid the
(Bdawfvpment wflt not ofity protect putttc heaMi amd envfromwcrt, but aho be eoonomtortly
vi«Me md bmmm ttw wmmirtty. Ita itaWntbto BtvwnfWtto rvtovvfopmvnl poems ft •
volm<*ry effort thai Mtfvvty mfla»»»ptop«rty cwMr«, tfv»lop«n, Bowmmvnt «8*noh» end
m« axmimlty hi ctmductng uiinUnt KttKt, «oonocnte evakinlfcui »nd pttwr aetjons to
nMM t
d
nl **»«• H MTComQ** •eonwdc vfc*tyo»«fi
povwty, imomptoyrnofrt mil otm».
II to ttta Wwil et thi» guMi to «n»unqje •
iWA
In wr« mm, th»
Lil«iiBl«»d ffnanttel, c«gu)«toiy, and ncmnnunlty
redavckixtwnlthoutdRltataBdrirMMil. DacMem mad* (n onnol tone anal rrwy aff«d
retfxmBm hi othn Bva. Foraxamfto, aoDmmnn»yt t^!fw*si*irateia8of npfoporty
m«Y attert omectiv* artwn am) th« owl of potential rwrwdhl tdton that h him. may
This proosM b nol kwar and nol
i of tifeproceu for effective hnpfcmentrion.
The fcey to the prooeu It the tcttve engagement ot government, developers and ihe
oommunly (o ensura auooa*sful turtaitaMe BnwmrMds rwtevefepment prooau,
2.0 Referenced Docunwnts
2.1 ASTM Sttmtonh
2.1.1 E-173B-BS Rsfc Barod Conccttv* AtMonAppliadal P«trgtoum RoteaMS«a*
2.1.3
2.1.4
2.1.S
E-XXXX
E-90.01
ConUuiiliianU (Ptisw III)
E-XXXX
SKc*
E1627-M
ftemodttionbyNBtutfll Attenuation
En\*onrn«rtil Stta AtMMmenl Prooan
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. laas
2.1.7 E-XXXX Gukte for AcoAtoraM Site Cto
3,0 Terminology
3.1 Tt» Mtot/^itofrnfltofliiroqvtMdcrncty from neJiiy 1995 reviilon ot RBgutottorvt
Gowmlng A31M Tatftirleat Cuininftteo. As d«finltoMi devetoptd by tw Cwirmilte* on
Swrxfanh (COS), ttwia doltrWDCB are provited tor hifaimUuml purposvt onV, and are not
tiibjtd ID Inkit or revbkmi unrt«r thto Standan) GuUo.
9.1 1 Btendtrd • m ui«d hi ASTM, • dDamwnl th«t hei bean d»vo(op»d and citaMkhsd
«4lhh ttx oomeniiu pdnd^vt d ttt* Soctoty tmi) thai mwb tha apfxtjnil taqufrtitMrrrt* ol
ASTM prooKtins ind reguUiatu.
Ottojnion -TtM tain 'standanrMivvKn ASTM u an ntjoctivi in tha title ol
docurnrnb. cvch M toil mattods or tpudkatiwa. to oornirt* spwifnd ctmmnsut
indanxovil ttn varioui typ«* d »tanrftid doamwnts nm bai«d on th« rt*«ds and
utae«i as prwoltwd by tha tedmlcal cxmmlHoes ol the SooKrly.
3.1.2 Oufcte • an mgmltarfcoteclien o( •fuinnten or t»n»i ol cpfem Km I itxa nol
lacoiuiMiid a spacffjc oom^ ol actfon.
Dbcuti>on • A guide ricroaM* Uw twarvntu of hfomtalmn and Bppmacfws rn a
olwn aibtad *raa
3.1.3 Prmctio* • a deRnWira »t of hwlnjcfensforperfoiTtinB ot>« ormom »p«driccpflTBlionj
thai tots ml pro due* a test tetutt..
Enamptos ol practloaf rdude.but am nol TimAed to application,
, daoorrtarmiation,lrttp«ctjon, rmtaliatJan, prepanitiDn,
, tooafvno,
31.4
J.2
Dltaui'on • Enmpfet of tan mathods tntiiifrs, bul am nrl Ignited to: Idflrrttfjcnton,
maauinmanl, and evaluation ot on* ot mow qua««». chaTnc(«niUc«, « propaittoc.
Daspriplioii of terms tpvdTic b> this rtanriirt:
Abstidorred,
iyHmted
iitBJ madta.
potertisl or tarfrmti axntenoo ol ch*mloJ(l) or
)77 Brownnitda RedevBtopmBni Cooii*intof - B total « regional government officiat
tuuna.'nlt d»o4jtxiiui< apency or non-profit oiaanimtion nspojuibte for t
BrowntreldS nrdavelcinnant
mi. 1MB
NgefS
T
ro
82
83
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... -...--..~,,. vjinnaua^i; QI comvm may tncajot
i. nMWi and eternal! ralaM to (nd«tml adMfiat
•nd o« «*rkkia <«M «ht aor^ ipw r
eomKrOTcm of irtnx remov»l»tn»tfmii«iil netfnufa Hvrt g« protedivc
w humm h«»f»i wNkt iltowfnt coH-Bffuctfv* proparfy r«d»v»fopm«m.
o
o
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Jim« 1, 1W1
ro
3 2 0 RoproMMttotfcn - • stoltmNrrrt of pall or piuanl fad, bun on Ui« date tracift. glrai by
trrrtpirty to/nduco »xrtt»»i tDflfrtw Irrta n contract
3710 nnfc-Rn4d Conectna AcWtm • n fnrrrwwork In wfibh axpcuurw md fit* ojMsinwit
pre«>w»»i»til>ui»l»dwitf>pteygrty«.»«tm»nlactlvllto end fwtmtii I notion notodon to
ma an thai ttw cfionn icton I* pnrtoetrva of himvnhMlh ind tha enWrorwwml
3 7 1 1 S«e-S»«offie Tarynl Level (SSTL) - RMi-fcoMd tmv»l tsvoU for cfwmicriv«bpm»nl
tx»oniton • SM«holdvn JndUtXt, M »r» ml fimtod to OWIMD. buymi. ctow>!ip«rs.
ktnten, Itwurtn. pov«mm«nt aponcMs and community pmupc
32.13 Suifarwbta fhownfWils Rmtamlofimonl Piooras • A vnhintaiy effort th(( aoNvvly
•rgipOT propnty cMAMtc, dtvalopcn, oovrmwrt Bpentiot *nd tt« conrnin*y In condurtr^
uiuwilva tttitn. 8cono»rtc «va)ua1ion natdottwr acDont to promots tfmtonn twm productlv*
reuse of • BromfoUt prapvty
37.M T ranjfwirt • Tha buytr. othar radptorrt by (food M fetiaa of ttw Brownfalds
rwJ»y»topmenl pivperty.
3 2 .15 Tmtufiror - T»« »oM«r or ta«sw o< t)n BrwmfWrJj tvttevotopmarl proptrly.
3.2 18 Wvmrty - A «pnnortetjon mw»« by ona party to a ceornidpvTty of a CDtrtrattol ttw
•wstenco crl • r»d upm »vWrfi th« sBBind party msy mly («.B.. tfirt the pnjpwty te In
tnrrptoiw w«h cottah bwt)thus mVawtnotha BBCOIX! party of ettaWttMriB Bwl fact
4.0 Srgnitlcanc* and Use
This doaimenl cuitKn tfw tH*e»x»*»r tf,^,,*, 8 pmcaM tor Brownrtoldi rwJsyftepmflrrt thM
»i»ponttBi rejmWwy, cormntmlty and bmuKtaral l$iu»i Grvan the icononln endsooi*)
torwfiM of cuttalrnbl* rettomlion of &CT*rfteWj propwrBBS. Bi*tonoo o« • ptoows for
etojmrB.W! n^rvBteprtwrl OMM be morf uwfid In frwurirfl tho BcraptabWy, and ttwrtfrnti
vabJIty. of tuch rnto
« prtxlu«i« r^iMol
rornMrt trwif own mwh. Beth tfweurrwrtmvltomMntelwndttfMuiKidttw ruUraos* of m«
Homvar. tW* ouife does not
llw sprafic oteria fot assotting the uitterabAttyol a BrownfreWs rB*MHopn«ml profBet.
Tmk Cioup BMW Dial
Jint 1. 10M)
-------
H is recognized thai certain communitJei hava iJMdy tarmulatH rhrt mm, effoctive,
pnx»«»*t. H l« not *• puipna of till document to Impute a Ml ol oultl«»ine« wham
succeartiM formulae axil L lrrf«»d, «tom«ntecliuDoe«jMn\wWt(rornBroumlth«sco«tTtry
have rJnt»Bitl(>d»fl)iii>H» Standard Guide. Th*«udiencaforthtedocumtnlso1
il tteJceholdare,
Radavetopment ol untautttud pntarttot li a k*j otyacttva of fedtral. rtota, and too*
•nvtmmwrrtal •gandii In envdonnaiilal poSey, Many itrtw taw davetopad RrownfeUi
toflliMKmtoftdll(ate«Msr»fcv«)cfmenlv)roo*»t U ra\ fnaai imd n»4 avery
ptojert mquk«i (Ul u«« ol eO Gompommli ol M»» pnc**5 f«f aff»e«yfl ItnptamwtoBon. 1 works
b^wtiwBwlnt«rOTUofUj)fil^dc»ereir™WDni for
eirplaoe of rasid«noa erd bustrejis. TlJs vision maybe based In hatory
Ju» 1,11X11
87
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61.4 local Oovemr«fi)
0.2
. wrp * SaHMoftMra
6.2.1 Om»r, Pnupeetivo T
0.2.1.1
0.2.12
82.1.3
02.1.4
021.5
8.2.1.0
02.1.7
Ptawtwl UM of «w prap«v
Cort of cwnrcttv* Ktfcn end mtocfatod hblHy
Mtnid tin* (Map BUMMud wtm ooimiive Ktott
»tonomie vkbBty ol urmundrig prooertw,
,
Btftotm to tho BnmnrWd* radr»«fanran<
02.1.9 Bucurity
02.1.9
82.1.10
8.2.1,11
B 2.1.12 PicpmlytaicnandtMndglhioBnttws
B.2J CWnmunily
Thow
proetM. Tlw unMnobto arwnfuHH rtdn
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00
!«k Omup tttlW t>rfl
88
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po««4d0
8773 Pre«nl«(luii ol the oonoefrtual ptan to ttn oomrtunlty
0.776
0720 Efl»ttiv» tummi»V
67 7 7 Ww cxxnivnfty tfwnjfnfetic*
02771 Sbfei* of tta fnfrastruotun
62372 ANwnrttv* »f idd*on«| propmtfm tor r»««v»lopmant
6277J Ad(«i«nl oommunlttef •xp»ri»no« with Bnwmrntt* md«v»te»)(n«n1
0.2.3 Uovamrmnt
6 2 3 1
T>>« local gov«Mmiml is toy b the •u«(a/n»M« Btwnr»)di rmtovnlopnwil ptnant Loc,l
gcvitrtTwrl iwUgtu tt» b«MAU and eonwini of ftcnnwnfc dvvalopmant on th» raHntrimJly,
local povwnrmrri traj/ ba «fn BmwnfnW j coonfcwtmo ogoncy wtioM funoliorn may Mude:
1731.1
873. \2
(7.3.1.3
«7 3.1.4
ioura on tfwJrwifmntol omdWont el Bro^nfmtl* anmrOJet
V./^.I.D ootcrof oT(wv»M>ffn gtdftMnaal frttHutiorMi tmd
«2.3.1.0 C*^(twtal^Ju^«lIf»l«v^ciovOTlr^m^B|>pro\^BS4ncte$»^to7i)h«
o^AQni B UMIIMMigOQlol WftV^tpplIMfrt,
«.2J.2 Sftite Covcmmwrt
Stein Bo«rr»n»fii on wshl witii oeorwmle rf«v»lo?fn«n1 »nd maotino wwitonrnmttl
lbj»ctrv»». The ttat* JOVBTTTI»«TI may oonlbcn
«7 322 FtenMity n»d itraBmtailng \n ttie oongdvo acttm ptocou toadrsvs
•nJroniTwrttl ob^dtvos IndudoiB uio »t:
82.8.2J.I RW(-li«f»d detfiton m»Wng
BJ3J?JJ? P»P<»tytp«dTic tend uw andBroundw»l»f uta ag i tasalm eongctivn
ocnofi dudilotu
023274 "^WnMAtodelemimhBi^nfldtalnrtonBtomwivttnclutfno
nrtttutbnal and Bngfnwrinp controb
B.232J5 PioixnliniMKificoxpoMmi B»*umpljo(u wtmn mtaWtlmg Mute
wv"»*ll »u«naTIV3
67.3776 Mtcfimifenu forrefaasaof KnbWin* Mcovenants nol tostw.
Tmh Gnrj
Jun«1. 19(0
-------
923.33
AMriitlno bcal e«wmm«nU In rmtowtopawnl «nort» thnMtpli pravWon of hcttnlat
•ipArtrte, M«a«im«m «nd mm»(fal *dfc>ti tochrralogf**, ffwitt ml ta»tu to local
Qounmnanl for property UMUTMnl. i)«>non»l«
BnwmtMiU rectoMlopnwnl property, mi community •ducatlon en •nvfronrantel
hunt
Provtdhi8hmd>njo««sii$*tBtnoW«)nho funding, orwr*i«nd«c«m»to bcal
oovammonl (or GramAMi mtftvefcpnenl pnomly MMumfml, tftmoWon tnd
mrnttW ecMon.
. Federal Gowmmarf
iri* teetotal aov*rmn«nl m«y anW «Wi aconoa*: i«v«lcvm«ra «vl mMtfng ««wln>nTwntal
abjactlvM by upportNo rU*-bi»«d tfaeWoni bi coractiva aeUon tor BniwnfMdi propfftfei
andeanddai;
87.3.3.1
•7.3.9 J
6-233.J
02334 VVha
redav»)opin»nl property MMumanl, d*mafctun and imnadial action
AMatiinanti, tmMng ban* and <«x tmj»frtl»t»,
UM rt ri»Mi«ad tfaoMou for cen«ctidln BtwmBehfa tadaifttopffwn. They may
jrmvhJfl part ot tho nocwssmy (innHnfl tot dowiopimrrt and thus tax* on a portion of the
rtttndclrMc associated wtthipro|»tl Naigtrboihood «oonoiri)e and «ocM ctabiity ore often
mottratan. tinoa a harfthfer mlgtibo4iood aconomi b b*r0fldal to tondfog rnstHitiimi h the
ore*. Intddil^.faarAscanaccAMandlnvMlFao^ralConrmvmlylUMvMlmWTlActtCRA)
fvnd* for Brownfwfda mtevoltpment
67.5 OBwr lntoro»«»d PottM
SofrM partka may not be comldarcd itokehaWffi at ttiU p«tn1 dtM to tha rm'tod ftxtont to Owl
patty may b« Wltectod by adMly el tfaj r»dawtopnHnt pnjparty of »»• nKtevatopmenl precn»«.
HCTWVK. tueft Mnr»tted partkM often ptay rmportnl rotet tn tha prooou ami (to Invotemenl
ot th»s« partfa* wW depvnd on tha na»d» and kifemtt rt V* vstwu« gtukeJiddeis
Ihorefms, ottiw hitanMtad paiKai wro ara acbiaHy hvolv»4 thouM be tfotaniiliial by thi
o
o
o
ro
to
CO
Tnk Oroup BaM Drnfl
Aim 1,1«M
90
I
o
CO
7.0 Evaluation
Th»putpoMd ttM «v»luetion ecmpooonlIt to <»4tonmln» th* vtobWy at prooMdmu *«i the
BtwmflefcU r»tfe<*»«pmaT>» midriitlonta M4lti»n*1tMlectotoluuei, aru^bcr of
•nvituiiiiKitil *nrJ hgil itues thotrld ba svmlustw).
Isbta 3: Exanvto ol StafostioliJtr Gwte for ttw Evaluation Component
GOA1
Oommimty
- E fTvliiXwrwuifli ft Wwwi
Cnun* r«d>«« KtoM «« pvtoctn* <4 human
: KiilcvM ton mDy Kid
<|>tnn lo «4 wa «nd
* to condlv
ll VIlfM ftlft tt%l] iHWlly,
(Nttar vnd«rAne hirp»d ofuxlrtng nnd potental (ubnohtnd uw In the juncwidlng irea
rvwdl oKh#ajmmunl1y
atxM« to mofcsts
nitutumlnvBrtnerrt
7,1.1
7.1.7
7.1.S
7.1.4
7.1.5
7.1.6
7.1.7
7.1.7.1 Tradittonal tanitng oourtBf
7.1.7.2 Comtnunityradawlnprnenlfind
7.1.7.3 fedaml, tteii wd local gmnt and li>an pioRnmi
7.1.7.4 existing ond nnt kuuranoe products.
TJ Mwrttfrtng Gtvkvnmgnlat Rt»k*
Iho »uoDB»«tul fcnptofMnUBm of th« tutto'nabt* Btwmfelds r»
-------
7.2.1 Prupcity AstMtmenl
A^Jl!Sn!r •H-x"*nn °* *» N»tonwl and enrol UMI ef tin property end iraa
•uTrountirtB *• property H oondudMI to Identity icum arm n • anwi ^hw, " rf»
Of (Ming to m*» ttul wfllb* hn«>(ti9rt«d;
mtoncM* poteirtW Mhim mapmv, fvto mK tcntport
7.2.1.1.1
7.2.1.1}
to detarmtna atmt th«1 rmy requlti
7.2,1.1.4 (d»rtrN/tnBd*wryc«((i)o1onrniero,
77.118 l^nrtflying (r» rmHSi to to sampled.
7-21.1.7 D«tem*dn; pumtnl and maotaMn potential Mure told ute,
77.1.18 Datoniikilng cummt end msonaMa prtrrtial Mum oround water use.
7.2.1.2 frrfn/m Inmstrgntioa
loWMrtffy
«) «ndto coted eutrnimrf drta on Ihe dl»ita.mton ^d
oonoml»rtonofch»n4a((«)rfcnnaiTi(n(h»mw»H. THs WormtBon ta owftswry to
""l^l11 "* ""^""^w*" addition of (he pnnj«rty ami to dotmmln* ttw npwwrfU.
wrrmfal «c*tm ovHorii AS1M Ein».9S Standard GuUa l»r Risk Bated CornWiw Arfun Bt
P»lTOl«uniReta«s«Snft$
77,1.2.1 O«^trmt>«pTt»^K«andcmiD»rrfcir*nioltTeil»einh^B)e>1a>n«imln
77.1.2.11 OoandnnpirlcBldara,
771.212
77.121.3
72.1.2.1.4 Conduct Initial retpontaacttoni
7.2,1.2-1.5
O
o
o
ro
T«k Oitx^i IMM DraA
Jinm1.1NI
o
722 Oelfltnining Ri»K and A&»BM Rrrnodial Action Allomalivm
RHk sswunwil end any mtiMng rerrKxtlsl Bchon(») stmuW bo (JMlyral and brtp4mn«nfad as
pml of Hm BnwnfMdi rrd««Blo(xnenl ol BIB propfrty. (Umd on Uw hrlcniiotjon arx) data
torryjfed during ttx (TOfxrrty MHiiimortt, tiB potential rUki msocivtvtiwMh ttw dmmcal(g) of
cannni end rtatoncMa pohrtial future land UM ftould tw avsriuatad f«f potortal human nnd
rwtovHnl •outoflitaf tna«p(oot«, Tho «^f^hBrrs«(CCTmiiJiA»tionmDf^ud«d
In the ASTM E-WWX ProvWonal GuWa for RHK Band Ccmwive Attonol Chmilcal Raloaso
Btoi. Itteito&rtwitortwtd^otortK^tohrafaiaiptonoiafrmwofrfo
making ruk-boiod d*oWon> tx comtctrve ect'on.
JS MMntial tt unrfmtand patrapfonB of iMt in outer ID pfwi and dasinn communicatbr*
»«trDrt»f cxwroretton r»8i« ttwn confrontation The objailw. K to prewtto ths epportunrty for
ifljpirrtmimvTA^totawiniundoiBtimdlniiolBrerBlUBidUMplmstem^iiWthmT^ Trusl
md omiMily *n> key lacttrs in o^ttno cocpB«>8lno tho
riunrty m »» d™ton mat* p. theiaby prowlino a gnets, torn* ol rnnbol own ttw
wrtrninirly mid otfMrr InJmroUd paths. CwmnunlwtTmi molhods rrrny tadudo p.i
Wwm"ton l«nyyrt»((nrfudhB ewy-te-rMd dtmti. and tebta.). pabNc fwum., nows media
ffxrth tmnt and TV), trato modnllon mu«ti«B». W»» urtonl, and tfw rrt»m»l
lr'art'110 "" *'k •1BO<*rted with aiBrowtold* piDjad, the teUovkio rtsuei m»d to
7.Z.3.1
Cwnml ondnutforabto potantol (utura uso of BM BrownfeWj mdavtbtimanl
propnty
77.37 Cumrrl ami nexonabta potential Mure fumsn expoiure and eroJoglal concami «l
ImkCnupRaMDnrn
Jan 1. 1KB
ci
T
to
03
-------
7.2.33 C wrtnt and rBfttOMbla palantii) future urn of thaerainMr the property
77.3.4 Inland ml oonowra of ifwiWtatioldani
72.36 ComreBvB roBtm nd proparty mma|>aimn» opfcm»
7.2.3.6 Health Mnc^iB»ocialedw1*tr»ccnac^artOT
UfltfWII
7.2.3.7
7J
The uiioMifut (mptomanittf m ot th« BrwmfiiMs radavatepmanl prcfacl It daptrtdant upon •
ctaturetertiaTriinoofltttlaaislatfovBnlrfaUlator^
tfw risk manaowrwrrt •room MenMcatkm and datormln«tton ol ttma nj<»utrori>ert* nd
pofcyteuAll«n«iMUwypi1trlatMBh¥iln||t)«pnx»ti. H *houM ateo to racoanized Ihrt
mort than tma reputably profram n*y apply to • BrcMmflakfe redawfapntent poparty md
mora tfian oi» regulatory agoncy may need ID b* rnvotodfri addnuslng the •rmnmrnontal
condWon(s) at • BrawmfMds PKl«v»topa«nl prop«rty-
7.3.1 1h«l«aliMiv«tndraouMoiyrequii«(mntcindpolcytuMitndtKmiM)no, fBgufateiy aanoty approval an
74J.3
(a rfocurwnl oondtions d cto«ff« and illow«rwrormmrtB) rUki to b* manapvd and
allocated • part c» a prepatty trancacten (SMSactfon B.1.3).
AHnMng hvnbnent bonkers, undarviriton and othvrs financtio CHI pro^od to mtka
d«teiiTilivrtiora eoiw»mmfl th» attxplaMllly ot lh» ftiandel rbfc «md rafca pmp»t
ditdoium fri ottaing documartfi.
AHooina rnurrano* undatwrilara to dahnrnina fte aimiptatiilrty ol thcfm»nci«l rtrt.
J«lnmh« ipecfflcrnsuranoe needs, and nl uypioiiiiate pranlums.
7.3.1.8 CiM«tfci for UM ol IruMiiUDngl cnrtmte and *no*mi<1no rantroti.
7.3.14
7.3.2 Smtw ol (to poKcytaua* refect poftical.temomiG and tooMal (adore ertdw* «X
BieprindpiM. Th» a«jtk«b»ty of the WlwAig r»«d to N
UxaM, tfirtB nnd tatwal tew»
PeuiJts find
7.3.2.1
7.3^.2
7.3 J?. 3
7.3 J.4 PwnOfngdalmi. Wi9afon and Item
7A nmncMfRMAnftMi
Flnmdalilftk amlytUl b vi AMhaMM of tfw finmcto cimwquancM of (h« project tnrfurteig
oiivrmmMital risk ktmtffiad bj a propmty «*setrm«nrt »nd ravtawof eppHcabte Inn and
re0uWoAS(SMS«ctkn7.1(n7.4). Unittie gnvlipmnantfll risk aaaamxnmiU and du>
tHI^snui, ftiymonl iHlt vnalyn) dmu not naoa&ariV have to b« itpeeted by djfftxwil panttej
If msuronoB is hnatvBddurine "^ EMtjMbon ttaga. the undatwtitex'i iM anriyuli may ten*
7.4.1
o
o
o
ro
co
7.4.2.1
proms* Bvctudfng:
II a ftmaactkn h Inwlvmi, itertnc the tantforee or tender to Ktyonv
coTKlitioraim^may(HiedtDbanwrai0«dwt«m«dlod»ft9f etailnj. lltanbaUMd
Jim 1. 1068
8.0 Transaction
OwmnNp often crnti^M during this uwi^oiranl Fre^uerrtfj' perrnitf m transftrrad and r»*
ttimvrt onfon fm vriurtary corr»cSvo BO*n» m nvenanti not to au» an» ertabtlshtd
l»tw««fi ttta TOW owner andttm regulatcKy •D«ne]r. Trias* permits, ordors, or actiona ihouW
pn^v(cJ« rw in«jno»rt)«^ rBHAition o( tftsputoa H b> aotmtfinM artvantaomiB for the ttto to
• BroMmfifttdt fnjpery to a Igcai govonvrranl onbty or eccmmlc dawfl tllB KBLtlDCl Sfl^K^fJPl VW HIViUIIIIMlt3l Bbld plWfe flOuBl gt*c!$
CWTrf UVB BJU (llfcJV pn of KB vnvtwvnetital prnvistora of arty trartsadlim rnvt/wd in the EistainaUa
oveto^nwrrl piooecs is driven prindprfy by KM real or pDroarvBdpotontM
r CCTrerfvoaeHnn trf tha propwty and, to • totan extent, by eonoem wrth EaMity for
a, E 1 527-94 Standard PrattipB for Envlra-FTWtrtsJ Site
A«ottmanl« Phojo I Environmental S*fl AdMowrmerrt Praaas end E 1S39-S3 Btendarf
Practice for Fnvtrorrmantsl Stt» Acsassnwnts: TransatSon Stwn ProoMS^mviiie »
tottinlon rf tfa o«na«l potantial envirorwmnttl lltbitty tfist m«y arin In reaj «tat>
tiruadltms.
f 1 . 1 . 1 Tnansfene's Qtyecfrws
Ininsf areas of a pruparty may bo conoorrmd with parcefved or rant Sabitly vndrn sista end/or
fMkval statute* for pw-enttag eiivfronmenlBl liablfcss. Trarofemes may saafc
TuA Oral» BrtW Orrt
Juw 1. «»ai
94
-------
n 1.1 i i
B1.1.1I
e 1.1.1.1
6.1.1.14
8.1.1.1.J
8.1.1.1*
O
O
o
U«bttty protection Iram pDterriil thkit pwty rj»m»
Fulldisdocure of nmwrt»nvhwim«r*alcrmrf«jeni ralrtwl to the property
An hid»rnffic*Hm w c*»« envhwnrmtrtol riiH tntufei nwdtmiLjm cowing any
B«WW(« «rttfng out of pr» CkMhig operation (») M oon«fflon(i).
IP got tmraferor b bem tniti ol Irtveit^nttfon
1o •ntun prep*ily to iiMbto to> omtompMtd uw{»)
1o obtain cental evw hflfmerttalfcm ol the nmrnfal ec«on(s}
Off 2 Tniraferwr'i Ob/tecttes
Tiernfaiori t>1 • prcpvry mey be ceramod wdh pen»lve iormt tabMty under rtria and/or
federal (Mutes hx • (MMM «t • ch«it«»*|i) ol concern on thi tend *t*e they o*ned tx
property or rtiuovery «f • etonfcalft of tonovm on the tend durkg their ownwtfrfc («vwi It
there wit no dtepOM* durrnp tt«i tin*) when they Mtod to dlufot* tt» wnvlrennontal
contRUon to « tnrttfmv*. In •cMltten, fru tnnMaioitmy afco ba art>Ui to th» tr»if»rMlc
to obtain IB»»»I«I «ndlnJ»nir*tiBf from pro«p»ctrv»tiwn»nvHtnl
. to:
611.231 require nrttae otcr fcrfl xutuBtfiatrt •tfionn by tha tnmrfmai tfial m»y
cciiblxito to 01 UNifrtitvte ttni %mufinifi IflbWIy or oonvclJra noUu>
rvc|ufnirmnts mfl oottK for pr^vAliVii| tzTfntff DTU
81.173.2 raqulr» tta Umalwin to unyumte (IndLKfnfl ygirt'iig accmti (o th«
prapotty) fti ituutMuiy (of biitttww to AUCDRsfi4ty widnm kib^fy for
pmH act] o» nrgilitafy vfotetiom
B.1.t.2.3.3 ivijufro tftf IrenAhMW) to umil tmttvfiwf liQlils to mitfuutv vKvl
maMiuru gMng iH» to minimi^ UbiHV
Of.f.1
Gamwn1!/. ttw lomtorv may BW*. homd en th« pro^nly irrvntoatkin, to mtmmlt» ttmtr rhk ol
Birt*y fM oorraetfvii action, rmmWnthe cutetenM value of tta re4»wtopni0nt pctperty «rrt to
obtam pioUiUiun (tan bonowwt oWii*ng or • «*«k0nrng ol th» bonoxMr't finincra) jxsttkm
dun to Hi wivtonnmiiUil Itabffly
tt 1.1.4 Comrmw Ob/iscftve: Woteriton from Lmbtily
forth ItM trfltisf9(%9 flEnd tfio tinwfofuf ii tny transaction swV nyyululoty piotvt^lDfi from
«rrvii»irKijil«lfabft1y Manyttatet affca ptotedion BgaMU tebity to purSM thfl vpluilarfy
CDtnpkrti comtcHva action puoucnl (• vokmttny oonocUva tftian fmyrtmi
13 ftotfirrfrmry
The ti/mber pnd
type of ptodmhaiy and pn>doshxi •fp'fl'Wintt thai ant n«eas«i»y will dipoid on the
tmmadiwv Prallmlnfln; «gn>«m«rrti rm igrvemvnb thai im reitdwd «nrty In tht proDMi o)
n«Bo(Mftig • tmnsadl«n thai may nducta apeeniante on tte nvonsvy rapt«MntaGoiu arid
vnmtnH«s. indnrmtttat and cfnnflei hi ttt» Mnractbn ttruttuio « MithdrewsJ from the
l «houtd tt» inwstlgation Identify unacooptaWe envfrDrmflntal rWui, Pro-dosrij
«(T*«raHTt3 m eet»«m«nU •«> that machld furthor along In the nat^BnB \n>tati tial may
lrUud« property •oo«i BsnemwiU «nd catt*etiv« action•Breemvnls.
• J Aflocrt/ng OfMfrcfc/ «/»* Wroivh Pra^/«toM /n TnttMrlbn Oocutmnta
Ni ord#i to (twle the rwpnrtl mwk»t»bt». »m« mrthodW ntwuld be foimrf to mimaqflor
•MoccM envtronrtwrrtiJ kWiiV. 3ut*i rrwthnd(s) mty bs found wttrtn o» cuUide ol ttw
ttinsaction dooumtfik.
8.3.1 RapraMnted!(ms0rdW*nBrrt>«s
Even « no erWtomneirtH condltlon(«) b cHswvww) on On property befom dowifl (w Us
trvuntion U rt« »ttm«*« »id rmanctally wund In epita rt the p«»eno» of in »nv*WTtie«itBl
ooreJWoo). potMiW m»fTtmi»ern«l (WWHtoi mey b* mtntmhod by setwrtnu approprtate
mv.emfiteliom end*rnian»t (n ««e pun*BM «niJ sale «BitM««etit. ReposenWkxu »nd
»«nwilliM can be Me4 to *n hdoimitfluHloti eore«nfOTt nippoitod by hoUlMKfcs. bondi. NiBat«
of ore* or •nrtioitinnlaJ inajmnou to cnvw the rt* thm thmtiic»l(t> ol conoem tney tm> up
tot»t on the pnperty. Exprsu WBtr»nt)«» «nd mptwonielonJ rndudd Ito ttactaaur* imd
CDfliilJlllBUun trf.'
831.1
trf reoniory pemttt.
J, approvals, told UH rmtrldiorB,
0.3. M. Conytence»Bth unvliomaitel towt, into* and regulations
6.3. 1.3 Artypwndliv, ttraUened o* ontJripotm) dalmt, bwsurte, lrdmloltlmllv» actions Of
or nrtoB ol eny ol thoee
Owtosum Bl the pmwnot of towwn chwnlc»l(5) Ot cwnoem end ropcrts of relaaM*
ol such rfianfca'd) of
8315 UadDinii tl anvhnrm»nbil stiiilnB or reports ocmtfuctod tegading ttx pioptrty.
83. 1.0 TheexJttcnoa of underground ttorB0n tanks orundenjtoundpipalinti
8.3.2 Enviromnwitsl Covenmrta
Th« tmufwaH may ertnUirfi a eoranenl to cxmpWn uinw-UvB action ri tlio [tcjiflrty, to
mnrrtai-t adaqngtn InwEtmonl to ccmptetB fie red« w!opn«nl ol the p;op«ity 01 to maintain
Imurroe pointaj to benefrl tw tmniteny. Atov«nimti7eatetacaso-vpeorficoorTtrntltig
cWipatitm. In n «Mo 01 kum tTnnadimi an hnportanl pnxfaship txrvonort is thnl ttm Irmsfatofl
Of trtfufejoi w(ll iiKi'iiVUii the property h> ctmphmoD with •! enviiumiwito! biws ntxi wfl n>-
»ffVtn Btcurecy ol ths nyi UMiiluliorn and OBiiuiHtos at at the dosing data. Aoovanonl
mqtAfng thut tcfion rrt be tokan t» a negtfive orwinnnl In uxna C«MH. a triranMTK may
prant to obtain r»g»rflv» oovrtturtH. Vmttrng ^ pttnoertva transferee's pbiHty to croaM stwafic
ha/ard). Post4*>ilr\Qoovenirrti may b«re^uinKl for a tmtstoroa in « loan Ij8irtflcton.cn •
tonmil hi a IBOM transadion.
Tmd Onup BalM Draft
Jim 1.1VM
-------
8.3.3 kirfwnntflcation
A transferor that believe* no llgrMctnt riik exists tfiouM ke wIMirq to Indemnify • pnuvective
tr»arferM«p»birttokl«y»ormypr»^«j«^BOTviit)mriontalcori)»kin(«). Howiver. tture me
Mwrerrt Rmtotfons to tuch WemntfM. The tepil effect may be unclear. the Indemnity may
be only •« good ai tt* ftntnctel worti of fcidemnltor or the kitfomhNy operate* efler ihe 1mA
(cash ffew problem*). hytermfflart^eyeementicaii toi^ppcrtedbyholifcacM, totter* of
cnxH at vuunmoa.
8.3.4 Environmental Inmreno*
6-8.4,1 CnvhomnentaltrMUTmca may be an atteinaUve m»m nt lieiafanlim HaMltty.
luiumno berneensforpartiei totwtranurtontawMWMbJbraa «h»«t« oontwmi
httuianee poflefei may otfet mtwtarttil nptoUattm rnuh^l* y»« pefictot, ftodMHy rn policy
wwr(*i8 »nd rMliitic prtdng ot oowrf 9*.
D.3.42
rnturanoi potttet am bo ixd at a rtmd rtonoiUlc tuntftt iinUuaitun o> to
lupptoflMnton IrtdtmnHy tgiMmiTTl (murara can ofTw suppon Mrvtem Midh «
tuitiitt nflnd^nQ ttn4 Iocs ctijiliul. LMbflfss or OMttllUons
|jf u|Hity iliuu^o,
Envlmimtel imift*! •cttcn oort», pcvf iutm»l| and off-prcptrty.
R3.47.3
Q3.4JZ/4 BU»|M»M lifcuupltoi aid Beat* olprcfrditetey.
B3.42.5 Envfjonrmrtol twmdW octon eotl cap o ttnp los*.
a 3.4 .2.0 CeMmal v*» or (oanml omdto tes.
R3.4.2.7
n»suD»d fron »
imil propwty.
0.3.4.3 TypM ol kuurvtos
B 3.4.3.1 Cunnmiolal (ntironw pottctei. •spwdslfy.
B343.1.1
63.4 3. 1i
for the tnxfronmtntBl btbiNtie* (&M taction B.9.4J2).
audits
contradoft pofUten taWHy «W •nvfromMnW oort«iAmt'8pref»ialonal
MIHypdolM.
B 3.4.3.2 Sunrty and bond*
A tunty tt B person or oiganlailioii Ural oorrtmchnlV qummt»«» to ono praty ttut Brwlhet
pmrty v*l pmfoim «i promts**. 8om*insur«ni*claMira1ieibyluu)nob)ed tn SfH ol fj»tBTiH«ed
omrecttve ecdon ecfiviy. Trie umietiive action nuy be oonductad pureuanl to • stele
volurrtory oorrediw adkjri DrcgrBm (See Settitm 75 2). II the Ijumteiuu tteddos to
unfartefce oormdive ertton, H thould omsiter raqirfrtg H» ovmer to chare the risk of
reganfing (KMT much en acoeptobte corrective action xrtll cost
9.0 Imptemefltttlon
DemofiCnci. reno\«tion and axredivB action occur during till oompomnl The rormctna
BdJon rnay be bated on an Integrated tend u*e werario vrtiere remsdlal action may be tied lo
B tend uv» mticb'Dn or to a dsvBfcptnarrt *rft umEtricted land use (tee Tabte 5).
TinX tsmat RnTrt Oral!
99
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m
I
to
Trite 5: Ewmpta of BUtaholitor Gmli fw th« taplwiMnteflon Cornpemxil
OwMimtrtl
cow
nKh»n
inMiy BQmpMfmf tfH r
• ntun an toMtmrt
TMr«tiv»lm'ii«iil frat**liinulitmlwttttfwlmin4i(iriaHimi
Th> ttdgyi^qui afil Mrfodr
l.t
Local, »W» (TO) hK*«T»l •ntrtt** mvykiut p*m*ti Miod ipon ay»wn«nl» raadiotf wlfi
tMntioUnt In prevtott oonvonmti nl th« suitainabl* BmwnftoU* radawtopmnl p
If tf» BrwimTH** rwfBwtepmnt prowu KM !>Mfic«irM(MwiRl
proo»« b nwtf* mot* •fflohnl
9.2
Rjvnwfiil ictim cvn occuf prtor to radBMtiipnivil, durfr^ rv^vt^opnTCTTf or Mfmt of
(vnn nftk rvduchon iNUf IHJM. SliihwuwM Iwy-ln fliu fiuUtitiiuiiit uiiibuu moy bo i
ID Han» a MDtohvMBtMtontkm pnceu ii begtmbul Htm fraiTHi ttiouhJ !>• fl«xtite to
•IUUTB tturi Bw n»»t DMl-et!«ctTV« mAitton Hurt prorkfen kng-fant rt»k rtduttiofi b
Intptommttd. faononfc dav^lepmirt Itirt ptnUdat »ail«»>Bbt« bpnefifr to tfx tontmmilty b
DM connwn goal ol «tl rta*t»tt*l»r».
h to t»«p (hte axryonant M «tx>rt M poufcto.
fi.3 EvflStrvfvgy
1h« B°"lrt ftHfra
«o «5trf)*h • ctwar B«n«»» not t w»a(n « Brtwmflrfds prof«rtytn the tiiii™ Kay oiu«s ttral
nMd to k« tfttolved In cmtet that ttw property exS ttw tinWnnbto ftwmftaWs re*v»*)(ttwni
pnx»n tiduito:
93.1 RmtoMtopmatl It tmdetway
».3J Remodml Mtkn it hiiptouaited
933 hrttutoml »nd mi9)n»erinO(xrtrols, M appropriate, an) In ptaoe and mantated
p o,, ^ii|rfufimtotluii tf tend UM fftsuhiiunv f1iiuiU01 porfcpntMtntB modnnttrm)
B 3.4 Local, (M* an) todMal (•BtMtan nquirwrBrts hov« to«n m*l
Ihe »UEt»tnab4» BrownteMs mto
Bumut*
Mcti BmwnftfiJdt r»dr«(opm*n1 propertj1 b diftanm (e.g., vmtottt hrvoli irt • cf»«mal(«| ol
n, tfifl«f»nt cotntKunHy ntlingf, mutttpto forms ot r»ui«) each BnMnTiMdi
nl pfuyBul rmy (ntfif>rti dttfuiHit czyrnporHinls. 7TM procft£& outfnod k A
O
c:
o
cc
. ieet
Juvi I. tta
100
•J
rs
101 -
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Appendix A - The Rote* of Local Government hi Sustainable
Brownftotd* Redevelopment
Local o»vanimenla an Idaefy eNuaW to ftctrtafa and promote DM auceeufu) muH of
Brcwmfbki* tvdevctofinerit poperMes. Local offieiile and murtfdpal managers often etay an
frrtegralrole in brirtpkrf tnprttMr al of the drvere* htererti mvolwKj hi a Brownfieldi
mt«uil»pmarri project Their roto u fmJlalun k oftan dfficuN. dwm the many different
group* Involved and tta comptajdfy tf the teuai. for aaampla, th» lapUahJiy fniraou*. that
detomVne* the fata olimny BnwmfMdi mfavafopnBnt propertJai his tmrJar tha JurMldton
by private financial Iratitiiliuiii. and rrtany dwWoni about properly reuee wil beta the hands
of the property owner. Local jovemmenta afro haw an vrpoitantrola In ha^tngto araun» thai
community orpanintioni and dbzan group* directr) effected by aBnnmfieti* redevelopment
project have tuffic^eooee* awl Influence In tha torrecSre action and rauta dacMoni.
Ihe (oaowrnp are examples ef the rt*e lhat local (pvwitnwiH on ptoy In tfn» rtdewtcprrwnl
of • Bnwmfleld* rad«^opmanl ptojtd Thay ara nol kitoiited to ba mad at an all-lndmiva
guM*. m th«ra It not the "omT mocM for tha d«dcfoni of a tocal |ov*mm«nt E»di dual
povemaanl has ditTering conoamt and attribute* tfnl play a rote h BrownHaM*
redawtapmanl
A-f ftitepnttfr>fl OrmmflMrfa ftaoVt^fapment i»ftt Dtfw CotnminHf Prterttfaa
Local BDvcrrmwntt mi in a unlqufl ptiHIon In look M PiponfialdirettextupiTunl In the
oontejd ef the commurtty's bfMder plan* and naadr B«cana of Ihh pwtpactto, th«y can ad
Mmmapjlii prov«»i fmnctol eupport for th« davwbpnwnl of a ahoppkig oantei viithe
fuU-Wfvra greoafy «tt*> In KM northwest area ol tomi. Thfc shopjAij; oontor daaVwod an
importer* benefit to wsWonH, who praviouiry had b dm* t utstta rh* nelgtiKXf»od or f»y
high prit»» at eoriMinltnta ttorei. A beat oovemrntnl ate« can asbl in W»n«rhB
priority Mtttons of Ihn crrf and fccut 0^0111 rot BrowrrteUf raojavatapmenl and ottar
Early (nvolvemertl of rh» cornmunrly In tha rente pfenning process to hiymLtnl to suooajstul
DnMTtfnHS r&uevelupiseiil Bfu olw> betjn to ertsun) tturt a community csn ajjriow Its
tai^j-terrn redovelopjnenl goofa, Local QOveiuiiitfiiJofficittli BhouU anoooa dlkjuu in ttie
d»caioTHTmkinfl procem. pnrvkle then wi* good and trrrmV iifamialiuii, and aerlousry
consider ths^ Input Todo thU, local tovemriieito oflene»tebU»h»tMsory or *ad hoc*
ujinnjirfy groups or ufftza existkig cDmmunHy pnH|>» to irtomsi Brownftolde radevetofrmnt
CoOanonrCv* ptartntno tnd comMmtuKiuBrtria HppnnehM ensure equHabla and meaningful
communty rnput For «xampt», bcelotrMelg In New Ortoans estatflslied a BnynnTMtte
redevetefment eoniorttm omattlrnfl of community oajanbrtioTtt. local government oflWab.
and developen) to team and maHe oedslons about tte BrowrflakArodevetopmerlpToeasa.
Local gowmments cenhefriQtheanM. Tlwcrtywmalile to laatUrtB«n«gn«>m«nluii(}w»tiichTtio
compmy morad into tha vacant factory.
A-4 PrvvWng FutnUrtff
Local floxMuwrU tan usattteir own tMouroes to fund portigrtt ol BnmntmWi recta yetopmart
cotts. Thtt finding ii particutef jr uMiul If I Is uted for up-fronl cotta uch at for property
fnventory, BW«M»iiMt. rvmerfial action, and preptraliofiol prnpartfei. Local p^emtmitbi
often havs tht raacwtea to (oeata the owner ot a BrownfleWi n>davBto(mi«Tilp^jpertywho
ha» th« pdertrol to OT>sW9 Kmds for ctaarup By payrng for atfessrnerrl and rtrratfU action,
the dty of Chbaoo't BrowmfiaWfi Ptel Program apiimd pritera oornpantai to rrwad In and
rout* a number of Bmmrrlettt redevelopment properttm. Other types ol firatndal benafita,
eudi a« tax Ircentfvw, can elio be us«tJ la eneeurooe miM Cook Coitrty, limalt, albtM
wmen of some BrwrnflftMsrHtovBlapmonl prtpwtiei to pay reduced prooorty taxm Jurtno
A-6 Cbova^wrfny PuMc Fumttng md Rwourca*
Both Ktato ant Meral B°vemn«irl» hava programs that ran pay for lome ol tha cods of
BrwrrrrrotdJ rxtovehamant property reuu), Local povwrmflnte can IrrloTm privstD-sactrr
parlte* aJxml theae pmgnfiu, appiy for piuui IUIB thai retire tocal rjovBrnmeiil Inwtvwtiant.
and look for way* to M»o?iil» rfrffamnt funding «o»roe«. Cnurirve UMI d vl«rt» fundnig Iralpod
Lawrarwe. Maisecnutettt, nose the property of an oM ptpnr factory. Br ihrftna the location
d an almady ptonrwdroadwiy by 100 fml, tho ciy wa* EWe to use ttato hlptoray fundt for
domoCtJon and mv>ro ramodW acion cosb tha agwncy had absorbed fright ywrs earttw. Atte; the crty asked that
Ihe tefibarotesed, EPA dterowf^thrttfw statute oirmrlatwra tied Belied 8iri fo^ tha
Ktti.
A-7 AjButrttogUtbmfytorEnvfron/netitatConifltion
h some onset, ttmsy make eerue for lDcnl(fo«nimmiti to agree to taka ontJaiiMy for
retrwdlBl action ed piuy«tiM vltwt) tho porooptton ef liabitry b praveritrnf davdDpnnnt THs
tan qiMdy renov* th« primary deterrent to mus». Boeaute it eoutd be etdremey costtV, this
•top should batifcentttih a goal deal ol nurJon. VWchHa. Kansas found thai retovejooment
ptons for much of Its downtown aeemad to lava bean derated by ttw discovery ot cfierrrical(«)
ot concern (n grand water. The dty entered Into am agnwrnanl unrfar whicri H dvidad
ojponstftty for i»m»ifaJ acton costs wtth tM principal potentially respDM&fe party (PHP).
CO
en
TM* Ootrp BnlM DraJt
JUMI. <»«
103
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BrownfhMt
o
o
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104
Appflndli B - Community Interaction
B-f Community Invotovmont
G«m»!ly, tfMMTtef frH cortmunlty It brougtitntto (to pieoaiR, tta bettor Hb for IK
hvoMnfl th» mmiiuiiKy In • DrownfMds mdftvttopnwflt projod cm
*T»
O
H
n»diinfanmiBiilpn>o»t». Ttwytray quKtfcnwtwtfw
tnvofvwd 'n «n» Mluma tool tend UM tfctitkini. Orm Uuianflg for tpctuon o< Drtmnfialdi
rarf»v»topn>fnl profscti It (o Mcimin* how to oonyfme Iht tuinimrrfly tmt tcOtt fnwKwnvnl
1* vnxtffivHk md to pnjvM* t«m «*ti MI O)ipurtiiiom& DrownfMd* mfswbpminil
Hmntof* fci conjuntttn ««! >uWic ftMltti oflWahi iharfd «d«eate the anmuniv «nd osher
iMalioldvn on th» arrant rWts, H any, po*ad by ft« Bfwmfielda fsdewtopmanl prrjmtes
ind comprnv ttoM tttfcz to ottw rttk* ki IN oommmHy. Thin wH)atowtw»CDTmiurrtyend
Btfw tt9lwhoU«n to B«C»I abetmnd dmMon ond«valn>r™mt ol th« projwrly.
Th» tsommmttj mty ro4 hsvn tha technical m fhimtjal msowcos to utess Ht« l»d»il«J
tacton InKjtvTu a BnvmBOdj r»d«v»lopmnnl pn^Brty. Thli H aftm Uiecaca tutuwB ptl*c
»»elthcM«IdOTi«oroiBxn8(titop<«y. The mmmuilty «l»Ud hav» lha op
Iw procw* ^"^<»' data ttnJ am oorracfly fntetfimttd ana maantnjful
.
r«v«) «"i w« «»*!» n to m**.fl an Infomwd anaVeii. Tim point (» to Morni th» ootmiurfly
«6ou» tho ran»» ol felma at hwirf and Bw nwourtw avafabto for ttw tnttrpnrtaton d data.
Hie HnmidBl traouroos naed*d by Hie ootnmunity rtvnM be detarnHrwd. and w)l be
h(*«fTO»d by a numbw ol h*for». tncliidHfl the siM o(Bi« Browrrftadh ftctevotopOMtrt
propwty. thfl omoiwl rt fitwrotal ratourcai efmarfy BvotaUa Tor the Pit*scL anrflhe tntewt
pr»wnl withki tw cmrrramity.
Whfa oxnmunty gratis mvynmd Irrfcxriiahjii aboul technical tnj«is tfn dev«bpcr
(owfrmxrnl offers and oth« (iakvholdm may need trahmo In communicating «teip8t<'ic
bchnleat mfamwfon to oornirunKy groups th« comtiuniceton process rtioyld hdudo 9
fwrouflti cxplnaiixi el toctirital nspects crt • pro^d ptoi to Us impletmntatlofi.
Wh«th«f dwlgnho «n effsdhB communlly paiflnpstfon prooram front I priwrte rfevrrfopor
Inert, date oi rerfwml tfTtcials^porvpectivfl, Kb boslto cxnn'dw th» WlovAig BLMIng
Subromml»»olttw NaUonil
£mrrmmn«ital Juste* Artrkory Couiiefl, Tta mo««l PUm fm PuWio Pnrtlclpttlon, U.8 EPA. Hovmber
If W *
Tfnk Gmup Brtfkl Draft
105
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B-4.1 Encourage •«*>» eermtunilynartlcipBtion mal aspect* o! environmental detisiov
reeking. fit* community thouU be M«n at equal partners ki dfebBue onBrewnietd*
redevelopment They mwd to know (I pmtlmnt deMta about the project ID ev&trala Us
Importune*), ants end benefit*. Through controlled, early Maittilon. oonmunlty
support needs to be buM.
B-4.Z Maintain hbMBV*rtdH*0my tl thapriKttM, From tha earfcwl ««•»»»,
nnFhrthTyfle.lt!
IM,S OrnUef utJnp • variety of pufaHmJUittolpetkn tadinla.ua> faf oDffarant thud
BnmnfMd* redevelopment projects. The single. ons-stee-fitt-el apptaatfi will ntl work
far all ttuattoru.
B-4.4 Oondut* at^ and eriMUlva outreach to th* public II I* better to be as hdusrve as
pC4s^ganeiBling a (IchntoMldaM arid approaches. The community has much to
ofler •bowl effect^* tatortcBoM end approertHw, Irarfrlroaal «nd non-hadtlviial
oetreach meanl should be attempted PmcntoUor* in ptttl end v«fe« rmdja w*
efiictha mMnt ol cotmriunlcBton M «« butotin boardi tA oomrnuntty focal polrto
(BQ., houMt of wontil^, ptootty ttonu. hunlnjmrt and oomminlty wnton). Other
method* «uch m isktgthB hitmwt chouM abo bs ouiaMtmd
B-5
Tha Wtovrng (top« we lupQMted «pyiotcl^« for Mttarg 19 «nd (nptomontfnfl
IXNIf lU/nfty p*»*iiJ|m1imi JJUjyiUh t
B-5.1 Wsn«ify»n*viduBlttol>«eiorrtiictod,lndudina tftov* *»e«r «flBd»d by a Browrt(l««j
rahwm put hitorvil in local tend UM fj<»r»iirio and
do nrttiBtflUgruity partfcjpina. autfiaa
minority and tow-(noonw comiiunitiu.
Ertablbh »duc«tion pnitfBim anl/m m«mn» to BOCOTI da»> BO thai prouys 01
h*vWv»l» can obtain timely. Kxumto fnfonfBtion to enable Item to have mMnhglul
Input in dechkrvmeWnp.
BeBtenatee matortala to annn euferal t»n>Hiv-»txin»oiiin and eo-plmnlng KteBonghtpt wtth nammunHy group» altowtng
»sm shtmd idee * ag«ndi devutopmvrt. gt>al aatftia. t«d«it*ilp and outreach.
Plan meoDng* t>»1 imnvxruftto and autxniKKtafna. MNtings fhoutt b» A*e to
public (rampCTfabon. CemMxrtiini tttotAf kfl ijtvcn to »u«h Uiuu 03 chiM raw,
nxest for ttw dinbM, end tanguaoa Intetprattim. Ptan tohtdules to accommodate
O .
O
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ro
co
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106
nee* of tha effected comrnunitioi Schedule roeeBngs on avenhi|fs and weekends
to ev»ld conlttcU wtti community or cUltwaJ ovwts. Craott an atmotthere of equal
participation. Avoid • twax* taWe1 and ensure thai tha pubfie shwms h assigimwofj.
MairiMndesreoatotiycettinasmioenda. Coontnate follow-up and dsvetapan
action plan. FarikUte foUoMMhroiijti by dlimbu1n0 minutes end Nsi 01 action Items.
6-4 ComtM/nftyUnt«'« mfn*t*udun».
attametivB or adrfrtfonel propertiec considered for Oownffelds radeveropinent, ond
WenWeation ol adjacent uwinmilUB* **Ji BrowrmekH radevetoprrHrrt ecperranM
Onne tha reMfirh rs comphrtj end tncmpontad. the attivt dWoflue prccoss should two in
becaum tho edual BrmmltoUa nrfewlopment profcd may noed to be reffned erx) dixcuis«d
*«h the commiolty. At thh point, any oomnunrty outrench strategy eMaify in ptaoo should
ke bn»d9ri*d b InckiM the majority c) ttfltehoMeo. SfrnUHan«ouxly, creative ptrtneohips
forboththethMtandk7ncjleimn«*dtobetomMd. Th« tWrnato goal ror tho dialocjtKi
lestlons Is to «*M*e* muhMl acnptanoe ol mspflnnblWJu to the prooeij
M v . m. if^f. .
D-f f WIVC3
Iho prtttioil n«Kt>M ol each naa ahouM be BMASKnt and Incorporated lilo the uutnlnable
Bnwnlwlds rodovelopinenl process, Foi example, In Form ottos, requests foi zcntog dvmiQm
tre chmineted firouohthe total govarnmentrepresiintatlves. Thus, any plans for Bnwnffelrft
red*velopmenlneed approval by local gowvment offciah
Other political omtldaattons nay hdude hew the munic%>tfity vfwrt hidutfrial nterrtionand
fob creation. Inaddtton, a Brwmflehh redevelopment property may te within an
Empo**»iHBnl tone, aTan tnonment Flnsmttig (TTF) tapa. or a htehnfcoly designated fijtrid
That* en) all pMWcal constdanit'ons that na«d to b« resoairh«d and woven mtolhe praooss
f»r retfevetopnwrt
B-8 MututlAa*ftmnc#afRQ&pon»8iliHI*a toPrvco&a
With tfraighlfoavanl ard honeM cnrrtmLmlortcm between dl parbM, raspwisitufitns to the
pnoos» should be ewj to ejtfblriJi end acoept Thase responsibiitiM should b« dear and
omsalent AnyehanoMnreipontibflltiea thoutd ba dlscuMBd and ocjiBBd upon. Ashipta,
ewy to mad o^xumartrhDisy be potted prtnisieittV «nd di6S
cn
oo
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I—
I
en
BB1 Community lnvctv«rMmlMMrp1»no» et u»miiMi h •n«ffort
-------
o
ro
CO
CD
' — *
Figure 1
The Brownfields Redevelopment Process
Hnlthrta
Initiation
Evaluation
pmr«-M 1 irf W«ntiV \ fc/^ tWtarmrn* X f Fjivtrrmmental h fci flnni
^"^J x^0^/ ^V^v^i? ^y^Zry1 \^
• Rrcopiire inecdorviiionof
the ledcvctopmail in reuic
• Rccopiiie tht dcvelvpmml
opportunity
• Tnkeiniliriive
• Compile inftiil informrtJon
• CriliMledivilyoft))ein-btnuivc invistigtlKn
• intrusive ittvidigAkin
• Dctcnnjneritk
• As»e»t mneditl optiooi
• RUk comniniatim
• the Ht(nmfield» proofs*
* pntontuu mks andplxnocd
nv^igdlion
tmlneN.
Mbte jk
htloruj^
1 • '
«nd approval
• Conedivc lotion object ires
' fnrtitulioniJ and eoginccnig
ocmlrolt
• Rctnediit option tdcction '
• Ddcnnmercuceoptinni: '
• lDlq?ntcpnnmunrlyneoli
with rrtiire land u«;
Transaction
hnptertrortation
X ^"N. /^jsvt(oi\?°*\ /"" ^X /" *"X /•"" ""X
k_/ Financial Rbfc \ , w / rfnoru-lnl 1 ... kl PrrmtHlnn k fe> 1 nnmnHIl) ArtinnY. . „ fcl e n n
^8h^/ V^A^,/ V__L/ xT!^/ v:L
• Alerting to mvimninautel
caidHimi thtt ra»y need to
bemtnneed
• Dctatnino Hie itcqitability
oflbe flxciil riA, aad
mikepropn diirfouna
• tXrrminc tpedlic btatmoe
ami*
• Prdtm'miry tad pre^lotme
cgrccmerrU
• Allocating fintnciil K«k
• Hitmu
icrJomJ
docurncoti
* orttldp
Imnuotiafiil
doctmntli
• SI«J(JC*O]C!CT
• CoordifutQ v
Egrccnoit
redevelopment
• Mere rfUcunl permMng
pioecs)
• Implnnon remedial action, u
spproprule
• hitegnaci'.ilhraievdopmml
• pnor
• during
• longurm
• Meet comdlve notion
objectives
ralegy }.
1 Hie commit to fauuTclJi«l new
BrovnTuldi arc not created
• rcdevelopmoil under*«y
• remof «J action
implmentod
• institutional or engineering
oonbtiirnplice
• regulator)' rcquiremmla
met
!
t
ji
I
3
3!
yo
O
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JUL-DE-SB 15:15
T-SB1 P.11/11 Job-2E7
You are the local government
You hava juct ManBftad a BnMmMd* property But lt»
Figure B-1
applgtm. p»p»a« » putte fcium
«I«oi» i*J»»»cp»^»0[Ooi»voitr»
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000242
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JUN-12-199S 11=05 FROM GULC TO . 82S045S0 _ P.002x015
Draft Memorandum -V-ffot For Quotation Or Citation In Anv Manner
MEMORANDUM'ON INTEGRATING ENVIRONMENTAL JUSTICE
INTO EPA PERMITTING AUTHORITY
-;-•; Prepared by the
Subcommittee on Enforcement of the
Nation^ EnrfromnentaJ Justice Advisory Coundl
Deeoho Ferris, Chair
A recurrent issue in mV discussions of both die National Environmental Justice Advisory
Council (NEJAC) and its Subcommittee on Enforcement has been die extent to which EPA
possesses the authority to condition on environmental justice grounds permits that the Agency
(and States with federaUy-apptoved programs) issues to regulated entities pursuant to the various
federal environmental protection laws administered by EPA. A related question is the extent to
which the permitting authority (state or federal) may deny a permit altogether solely on
environmental justice grounds.
The purpose of this mlemorandum is to question the apparent assumption of many that
no such permit conditioning or denial authority exists relating to environmental justice concerns.
The memorandum is concerned exclusively with the issue whether EPA possesses authority that
it has not yet chosen to exercise. The memorandum does not comprehensively address the
distinct question whether EPA is required nnder existing statutory provisions to impose such
conditions or deny such permits. Plainly, EPA's statutory authority is broader than Us statutory
obligations. The Agency possesses wide ranging authority. The question posed is to what extent
may EPA. in its discretion; exercise such authority in the permitting process to promote
environmental justice concerns. But; of course, if one concludes mat such discretionary
authority does exist, there wiH inevitably be circumstances in which the failure to exercise such
discretion would amount to abuse of discretion and therefore be unlawful.
« • ' "•
The memorandum is divided into four parts. First, the memorandum describes, in
general terms, both what loads of factors might be hnplicafffd in the permitting context by
"environmental justice" and the types of conditions that might be imposed in response to those
concerns. Second, the memorandum describes a"d d'*T"*3fff die four EPA Environmental
Appeals Boards decisions that have addressed the relevancy to EPA's permitting authority of
environmental justice concerns. Third, die memorandum surveys various federal environmental
laws for statutory and regulatory language tiiat might provide a legal basis for EPA conditioning
permits, or denying diem altogether; on environmental justice grounds. Tnr.mdBd in this
discussion is a brief analysis of certain provisions within each of the laws that readily lend
tiiexnselves to injecting environmental justice concerns into die environmental protection
standards themselves. Presumably, EPA is currently already doing so as pan of its overall effort
to comply with the President^ executive order. Finally, there "la a brief conclusion.
Appendix N: NEJAC Paper on Federal
and State Legal Authority
000243
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JUN-12-1998 11 = 25 FRCM GLLC TU tfcbtf<3bt!id
Draft Memorandum -.Not For- Quotation Or Citation in Any
I. The Meanfisf-of "Environmental Justice" in the EPA Permitting Context
In the context of an EPA pennittmg decision, environmental justice's core expression is
likely that EPA should take into account the racial and/or socioeconomic makeup of the
community most likely to be affected adversely by the environmental risks to be created by the
activity spiring a permit. Notwithstanding the common misapprehension of many fating jog,
account the makeup of tfaecommnniry does not mean that EPA must automatically deny a permit
solely because the affected ares is a community of color or a low-income community. The
Agency's inquiry into the character of the community — i.e., whether it is a community of color
'or a low-income community-- is instead necessary to allow
'
allow the Agency to mafc* an informed
permitting decision regarding' the actual environmental and health effects of a permit applicant's
proposed activity.
For example, because EPA knows mat certain communities are more likely to be exposed
to cumulative environmental and health risks from varied sources than are other communities,
EPA can take that relevant fact Into armimt in deriding whether, or to what extent, to permit
additional risks from die newly-proposed activity. The bottom line for EPA's pennitnng
decision remains environmental and health risks. Knowledge of the character Of the community
is necessary for the pennimag agency to apprehend fully what those risks actually are — to
consider those risks in aggregation. Risks that may seem acceptable in isolation may be more
properly s^ga as being unacceptably high when the broader social gpntett fjcinritpg associated
health and environmental risks, are accounted for in a total aggregation. Hence, one question
is whether EPA's statutory authority allows the permitting authority to consider the true
cumulative impact of die activity vflring a permit - in aggregation with other sources of risks -
- or instead confines the Agency to cnrnirirring solely the risks of the permitted activity.
A distinct inquiry concerns me Agency's authority to take into account equity or
disproportionaliry concerns.' The dispruportionaliry issue is plainly related to the unacceptably
high aggregation (or cumulative in !['•"**) issue Aggregation is thg f»TirfBTri«»nni cansr of
dispropoitionaliry. And, in many circumstances, aggregation «"4 disproportionality occur
simultaneously — for instance^ when accounting for aggregation rngfr*f it possible for thg Agency
to realize that one numimi'iity is exposed to unacceptably high levels of risk; and another
community is not. . .
But, for many, equity is 4 legitimate consideration, regardless of whether aggregation of
risk violates EPA's established *mijpvnrM>ntai or human health norms for what constitutes
acceptable risk. They would Eke to see EPA deny or condition a permit based on the fact that
the affected community would otherwise be subject to a disproportionate share of environmental
risk. Proof of dispropordottttity would be sufficient There would be no additional need to
establish that the level of risk: being imposed was otherwise unacceptably high from either a
strictly health or environmental perspective. In short, disproportionality would, by itself, be
presumptively unreasonable or perhaps even per se unreasonable, absent mitigating permit
000244
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JUN-12-19S8 11 = 06 FROM GULL' lu
Draft Memorandum --Not For Quotation Or Citation Tn Anv Manner
conditions.
A third aspect of environmental justice of possible relevance to a pei mitting decision
relates to community enforcement and compliance assurance. Congress deliberately included
citizen suit enforcement provisions in federal environmental protection laws because of its
awareness that government: entonxrrgttt resources would necessarily be insufficient (and
unreliable) to establish the credible enforcement threat needed to promote compliance. One of
the central rrar.hingi of euvuuuuieBal justice, however, is that environmental justice
communities have historically'lacked the resources ngfded to monitor polluting facilities in their
neighborhoods for possible: violations and. when found, negotiate their correction, persuade
federal or state enfuicemear officials to take action, or, if necessary, to bring a citizen suit
enforcement action against thev facility in violation. Prnmnffag community enforcement capacity
is, accordingly, a central goat of the Enforcement Subcommittee. To that end, permit conditions
might be designed to redress this resource deficiency by providing communities with greater
oversight and enforcement capacity. Conditions could range from making monitoring reports
more readily available to the corannmity to Che more ambitious possibility of providing
community access for inspection; or even the funding of a community oversight operation.
These three examples^ of envHOnmental justice considerations relevant to permitting —
accounting for risk aggregation, redressing risk disproportionality, and promoting community
enforcement capacity — are merely illustrative. No doubt there are many other ways in which
environmental justice considerations could be factored into Agency permitting decisions. For the
purpose of this memorandum, however; the list need not be exhaustive. What mis memorandum
seeks to address is the tfapgfHpV* issue whether environmental justice can in any ™««ngr be
relevant to EPA's exercise of its permitting authority under the various environmental laws.
These three examples offer * basis ft* addressing that threshold issue. If the answer is in the
affirmative — permitting agencies may deny or condition permits on such grounds —
consideration of the full reach of environmental justice in the permitting context may then be
ripe.
H. USEPA Emlfoamaitai Appeals Board Decisions Regarding the Relationship
of EnTirtjomeabrf Justice to EPA Permitting Authority
Apparently, neither the EPA Administrator nor her General Counsel has spoken directly
to the question addressed by this menur?™*"" Each has gmpfiasrred their commitment to
fulfilling the mandate* of Executive Order 12898 as well as their overall support for reforming
Agency practices as necessary to promote environmental justice concerns. But neither has
considered the extent to wfaicfe EPA might affirmatively use its permitting authority to promote
environmental justice. (Or if either has, they have not done so publicly).
Unfortunately, the issuehis haetd arisen before the Agency only on a case by case basis
000249
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JUN-12-1SS8 11=07 FRCM GLLC TO 62504560 P.005/015
t MgrroTanduin -~ Net For OuotBuion Or Citation Tn Anv
and in a defensive pcstom. A Regional EPA Office or a State environmental agency with
pgi mitring authority pursuant to a federal envimnmgn**! law has initially refused to account for
environmental justice factors in exercising its permitting authority. Disappointed environmental
justice advocates have challenged those negative determinations before EPA's Environmental
Appeals Board. And, in all four cases, the Environmental Appeals Board has rejected the
appeals and affirmed the permitting authority's negative rulings.
The disadvantages of the Agency's considering the issue only in this posture are
considerable. First, case by case adjudication does not readily lend itself to the kind of broad,
systemic Agency reforms required for the promotion of environmental justice. In a more
adversarial setting, the natural impulse for most Agency decxsiomnakers is to deny the existence
of a legal obligation — in ma context, the obligation to consider environmental justice in a
permitting decision. There is also a «itoan»iai risk that in making that argument, agency
personnel will take the flutter step of denying authority. Although 'authority* and "legal
obligation" are legally distinct-concepts, one can always buttress one's dmial of the latter by
extending it to a denial of me'former. And, conversely, any admission of "authority" makes it
fmrW to deny that such authority may, in some circumstances, become a "legal obligation"
based, for example on a party's dam of abuse of discretion.. There is reason-to expect,
therefore, that the tendency.of case by case adjudication will be to make systemic reform
promoting environmental justk«mc« difficult. Overcoming this tendency will require top-down
directives that the Agency wants to exercise its discretionary authority to promote environmental
justice, extending beyond what the Agency is legally obligated to do.
A closer look at each/of the four Environmental Appeals Board decisions unde
rxurcs
these limits of case by case adjudication. It also h«tf* at how the Agency might, through the
exercise of permitting authority, exploit currently untapped avenues for furthering the
environment' justice goals of Executive Order 12898.
Station Uin^ Partnership, PSD Appeal No*.
9-1 through 93-7 (September 8, 1993) (Genese* I), order on motion for
clarification (October 22, 1993) (Genera 11}
In this matter, a local environmental justice rammunity organization (the Society of Afro-
American People) challenged a state agency's decision to grant a Prevention of Significant
Deterioration (PSD) Permit ***~ me Clean Air ACL The citizen group contended, inter alia,
that the decision to locate the facility in a predominantly Afro-American community reflected
environmental racism.
In its initial ruling, the :Appetli Board concluded that me state agency lacked authority
under the provisions of the federal dean Air Ac: the agency was administering to consider
community opposition and, therefore, its failure to do so. was entirely appropriately and,
therefore, could not be dgcmnri evidence of racially disCTirninatory intent. The state agency s
000246
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JUN-12-1998 11:07 FROM GULC TO 82604580 P.00S/015
Draft Memorandum -^ Not For Quotation Or Citation Tn Anv Manner
inquiry is properly confined under the federal statute, the Appeals Board stated, to the question
whether the facility would meet federal air quality requirements. A man>r such as community
opposition, the Board reasoned, would normally be a matter for consideration by a local zoning
board.
The Appeals Board farther found mat even if the state agency had authority "n«ter some
state law to consider ujmnmuity opposition — and the Appeals Board had authority to review
the state's compliance with that state law — the state agency's actions in this cases were not
discriminatory. The Board rejected the community group's claim of rfi^nw impact, which
was based on the state agency's having denied a permit to an incinerator opposed by white
residents. The Board found *"•* there were "legitimate, rtemdisam^rnateay reasons" for denying
the permit in that other case; Tbut not in the instant case (e.g. , local zoning approval had been
denied, the incinerator's proximity to A wetland would violate me federal Wild and Scenic Rivers
Act. and the facility would not comply with state law). And, while noting mat the citizen
plaintiffs had not proven the state agency's intent to discriminate, as required to make out an
Protection claim, the Board also specifically declined to reach that constitutional issue.
EPA's Office of General Counsel (OGQ responded to the Appeals Board ruling by filing
a Motion for Clarification, in which OGC requested that the Board revise its reasoning, but not
the results. Specifically, OGC challenged the Board's rationale mat a state agency (acting as a
PSD permitting authority under federal delegation) lacks authority to consider community
opposition to the proposed facility location so long as the air quality impacts of the facility meet
federal requirements. Although die Board responded in a hostile fashion to the OGC's motion -
- "The Board does not view its function as mat of making hs legal views consistent with those
of program and Regional offices * • * * for the Board was created in part to ensure that the
controversies pending before it are decided fairly and impartially* - the Board ultimately agreed
to excise the portions of the- initial opinion considered objectionable by OGC. The excised
portions included the Board's statements that the permitting authority lacked authority under
federal clean air legislation to consider community opposition. The Board reasoned that excision
was appropriate because these' were issues of national importance that deserved greater attention.
The two Genesec Pdwcr administrative rulings illustrate the pitfalls of having
environmental justice addressed, in the first instance, hi case by case adjudication. Both the
state agency and EPA - in the form of the Appeals Board - followed their natural impulse to
deny the legitimacy of a new rf«im; here, one promoting environmental justice concerns. Rather
than look for ways to read statutory authorities expansively, they instead read mem narrowly,
presumably ha order to insulate agency deciaonmaking from secondguessing by outsiders.
Juxtaposing the two «Jyfrh"«, however, also illustrates the potential for positive reforms
should EPA take the mitittrte outside the adjudicatory process to read its authorities more
expansively. Because the Office of General Counsel in tins case took the initiative, the Appeals
Board's modified its reasonm* so as not to preclude the Agency from embracing a more
000247
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JUN-12-1990 11=08 FROM GULC TO 82504580 P.007/015
Draft Memorandum -- Not For Quotation Or Citation Tn An
proactive approach to environment!! justice in the future. The challenge the Agency faces,
however, is now to fill the gap oirzestly existing in the law regarding the relevazcy Of
environmental justice concersi hi permitring decisions before those gaps are filled in a manner
unsympathetic to environmental justice by agency employees and state environmental agencies
interpreting relevant authoritfai ha adjddicatory settings. For, or** the government has "dug in"
to a legal position, it will be far hgnfrr to effectuate needed reforms.
.- Finally, there is ont more lesson to take away from the Gcnesee Power case — the
significance of efimtnmrity aufnrrj-iiffMir capacity. The Board concluded tfrmt there were
"legitimate nondiscriminatorr reasons' for why the state had dcnfed the permit to be located in
the white community but graded the permit for the facility to be located in the African
American community. Perhaps so. But perhaps not, if *i™ii«r violations of state law might
have been developed had the "African American community had the legal resources aad political
power necessary to do so. But, absent such a level playing field, even what appears to be
entirely "legitimate noodiscrirninatory reasons* may in fact be the product of yet a different Hnd
of inequity.
B. In re Oumtcai Wdstt Management of Indiana, Inc., RCRA Appeals Nos. 95-2
& 95-2 < Jam », 1999
In this matter, local citizens challenged on environmental justice grounds EPA Region
V's decision to grant a permit to a landfill pursuant to Section 3005 of the Resource
Conservation and Recovery Act. 42 U.S.C. 6925. The Region held an informational meeting
with concerned citizens and: industry representatives to discuss, among odier items,
environmental justice issues. -And, me Region also prepared a demographic study (based on a
one-mile radius around the facility).
The citizens' challenge included several arguments based explicitly on environmental
justice. The citizens <*fa««7*^ that me Region fc"* acted in a clearly erroneous fashion Bnf* kgf*
abused its discretion in wkitig to implffi ITEBF Executive Order 12898 in tfrg- abyncg of the
Agency's having promulgated a national environmental justice strategy. And, they contended
that the demographic study wife clearly erroneous, bcraiiy of its restricted one-mile radius scope
and because the Region had ignored certain evidence regarding the racial and socio-economic
composition of rf^ afffrcwt area and the itnri*vtT of the permitted facility.
The Appeals Board rejected both contentions. The Board concluded, at the outset, that
Executive Order 12898 "does not purport to, and does not have the effect of changing the
substantive requirements for the f«T*yrr* of a permit "ryk* RCRA and its implementing
regulations." The Board former concluded that "if a permit applicant nvt* the requirements
of RCRA and its implernentmg regulations, the Agency must issue the permit, regardless of the
racial or socio-economic composition of the surrounding ** immunity and regardless of the
economic effect of the facility on the sunoundmg community.
000248
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JUN-12-1998 11:08 FRCM GULC TO 82604580 P.008/015
Draft Memorandum -•- NoC For Quotation Or Citation In Anv
The Appeals Board ten sought to temper what otherwise appeared to be a blanket
rejection of any statutory authority to consider environmental justice concerns in the permitting
context. First, the Board held that "when a Region has a basis to believe that operation of the
facility may have a dispropoiitonate impart on a minority or low-income segment of the affected
community, the Region should, as a matter of policy, exercise its discretion to assure early and
ongoing opportunities for panic involvement in the permitting process. The Board, therefore,
supported enhancing avenues- for public participation when environmental justice concerns are
raised. : * .
The more significant'-part of the opinion, however, is when the Board went beyond
procedural requirements to consider the possible substantive significance to environmental justice
of the omnibus clause under Section 3005(c)(3), which provides:
Each permit issued under this section shall contain such terms and conditions as the
Administrator (or tfi*; State) determines necessary to protect Jnmnan health »"<* the
environment.
42 U.S.C. 6925(c)(3). The Beard agreed that mis clause requires that the Agency condition,
and if necessary deny altogether, a permit "if the operation of a facility would have an adverse
impact on the health or environment of the surrounding community * * * as necessary to prevent
such impacts.1' The Board conchufod that EPA was permitted under RCRA to take "a more
refined look at its health and environmental impacts acm««iiiem* in response to environmental
justice claims. And, the Board specifically acknowledged that an assessment mat looked only
at a "broad cross-section of the community * * * might mask the effects of the facility on a
disparately affected minoritjr or low-income segment of the community.' Accordingly, the
Board held, "when a commenter submits at least a superficially plausible claim mat operation.
of the facility will have a disproportionate impact on a minority or low-income segment of the
affected community, the Region should, as a matter of policy, exercise its discretion under
Section 3005(c)(3) to include within its health and environmental impacts assessment an analysis
focusing particularly on tee .minority or low-income community whose health or environment
is alleged to be threatened by me facility."
Finally, the Board stressed that the omnibus clause of Section 3005(c)(3) could not be
used as a statutory basis for ffir*l"g into the analysis factors other than "ensuring the protection
of *he health or w " pntpgff p* i«w-tnenmg populations. "The Region would not have discretion
to redress impacts unrelated or only teoBOusly related to hunian health and the environment, such
as disproportionate impacts on the economic well-being of a minority or low-income
community."
Notwithstanding the stark terms of the Board's threshold suggestion that "the racial or
socio-economic composition of the surrounding community* are irrelevant to a the permitting
authority under RCRA, the Board's opinion leaves substantial room for EPA to exercise its
000249
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JUN-12-19S8 11=09 FROM GULC TQ 82604580 P.009/015
Draft Memorandum — Not For Quotation Or Citation In An
authority to promote eavirumnental justice in exercising its pein lifting authority ""H*T RCRA
It allows for the Agency to engage in the Iriad of risk aggregation analysis upon which
environmental justice gJ«n**« are frequently bottomed. This includes both a closer examination
of the cumulative impacts of various risk producing facilities affecting community as well as the
possibility that certain subpopalations may be especially susceptible to being harmed by
environmental pollutants. lift Board also suggested a potentially low threshold trigger for the
preparation of such analysis: "a superficiaUy plausible claim • * * [of] disproportionate impact
on a minority or low-income segment of the affected community."
Perhaps even more significantly, the Board «*»n« to have ruled mat pen nit conditions
or denials need not depend otfthe showing of a violation of some pre-established environmental
standard. The Board opinion; provides that EPA has authority to condition a permit whenever
"the operation of a facility would have an adverse i^p"^ on die health or environment of the
surrounding community * * * as necessary to prevent such impacts." The Board does not maVg
clear what it means by "an adverse impact" and how it intends to square mis aspect of its
opinion with its ini^'l arfrn/miahmeni mat "if a permit applicant meets the requirements of
RCRA and its implementing regulations, the Agency must issue me permit." Presumably,
though, they are reconciled by the Administrator being given discretion in Section 30Q5(c)(3)'s
omnibus provision to determine what constitutes an adverse impact warranting a condition (or
possibly a permit denial). Tbe Board, therefore, does not deny the Administrator authority in
RCRA permitting to take account of the socio-economic or racial composition of a community
jo long as she does so onfy in the first instance as a reason to take a closer look at the human
health and environmental effects of the facility wiring a permit The final permit condition or
Ami*\ nw5t rest on those fawnan health and environmental effects »nd not simply on the socio-
economic or racial composition of the community.
C. In n Puerto JHco Electric Power Authority, PSD Appeal No. 95-2 (Dec. 11,
1995)
la this matter, a citizen group in Puerto Rico sought review of Region ITs fsmianrr of
a Prevention of Significant Deterioration (PSD) permit to the Puerto Rico Electric Power
Authority (PREPA). The group g»ainysdt among other things, that PREPA and Puerto Rico
should have prepared an epidemiological study of the area surrounding the proposed facility and
that their failure to do so violated Executive Order 12898 and the federal Constitution. The
Board rejected the qi«q". relying on Region El's explanation that it had fully responded to
environmental justice issues raised during the comment period, including the preparation of
demographic analysis of the affected area. The Region had concluded that me facility "would
cause no disproportionate advene health impacts to lower-income populations. Finally, the
Board likewise rejected the 'W""* group's contentions that the Region had relied on flawed
meteorological data and had failed adequately to consider PREPA "history of violations" in the
past
000250
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JUN-12-1998 11 = 09 FROM GULC TO 82604bUtf
Draft Memorandum --' Not For Quotation Oy Citation In Anv Manner
The precedential significance of this decision is fairly limited because the citizen group's
petition for review appears to; tare been too cursory (two-pages) to be persuasive. The matter
is nonetheless signifiwt bfcttiy it underscores both the limfaid resources available to most
community-based environmental justice organizations and the importance of EPA's tafrtny a more
proactive view of its affirmative ability to promote environmental justice in the
context. .It is no great surprise that where, as in this case, the EPA Regional Office d^-ifa** to
actively pursue the euvkonmeiaal justice concerns of an affected community, the Appeals Board
will almost always affirm thalrruiing. Unless me local community group has managed to obtain
substantial legal expertise and" resources, they are unlikely to be able to articulate their concerns
in a mamy likely to prompt me Appeals Board to second guess the Region. As stressed by the
Appeals Board in this matter, the Board will not grant a petition for review "unless to decision
is based on either a clearly erroneous findmg of fact or conclusion of law, or involves an
important Tnattgr of policy or exercise of discretion that warrants review."
Effective promotion oj environmental justice will instead turn mostly on a Region's
tf» respond to a lodri community group's concerns bv exercising its discretion to take
me initiative to become closely engaged with those in the community. Where, as in this matter.
the issue becomes what me Agency is required to do, those promoting environmental justice will
most often lose. And, as here, one cannot really know wherein lie the merits of the group's
claim. Because, without EPA's active and affirmative support, arizen groups were unlikely to
be able to ™a*« the case necessary to overturn EPA, once the Agency had initially decided to
grant PREPA the PSD permit.
D. Inn EKHXK*, L.P., UIC Appeals Nos. 95-2 through 95-37 (February 15,
199$)
In mis matter, local residents and nearby municipalities challenged EPA Region V's
decision to grant two Underground Injection Control (UIC) permits under the Safe Drinking
Water Act. Tie permits aurntirize the permittee; Envotech. to drill, consttuct, test, and operate
two hazardous waste injection wells in Washtenaw County, Michigan. The local opposition
raised many contentions, including mo permittee's poor history of environmental compliance,
the "nM*» and unproven nature of underground injection, the absence of necessary, state and
local governmental approvals, flawed geological aswmnents, errors in characterizations of the
hazardous wastes to be received by Ac facility, and feilnre to provide required waste
ininimization certification. The residents also raised distinct environmental justice claims.
The Appeals Board rejected afl the claims except Cor me dam that a waste nrimmTTatipn
certification is required. Tfie Boaxd specifically denied die contention of a community
organizations opposed to the facility, Michigan Citizens Against Toxic Substances, that local
opposition provides a basis for UIC permit denial. The Board reasoned that local opposition
alone is simply not a fcctor mat the Regionmay consider in its permit decision' and that [m]ore
fundamental issues, such as siting of the wells, are a matter of states local jrinsdiction rather
000251
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Draft Memorandum --Not Per Quotation Or Citation m Anv
than a legitimate inquiry for EPA."
The Board also rejected opposition to the permit that was based on the past cca?»iksce
(or lack thereof) with environmental requirements of companies affiliated with the pe^meee.
The Board concluded that sash a concern "simply does not present a link to a condition of ti«e
UIC permits at issue here sufficient to invoke the Board's authority to review the permit
decision." The Board sirmlsrry found no basis for relief in any of the environmental justice
claims, which fbcussed on the fact mat the area surrounding the facility was already host to
burdensome fo™^ uses.
The Appeals Board, however, nsed the matter as another opportunity to state its views
on the significance of environmental justice in the permitting context. Citing to its earlier ruling
in Chemical Waste Managcmeat of Indiana (CWM), previously HT*"»y^. the Board stated Hm,
as with RCRA permitting "~^ Section 3005, "if a UIC permit applicant mcrts the requirements
of the SDWA and UIC reguiiriom, the "Agency must issue the permit, regardless of the racial
or socio-economic composition of the surrounding community and regardless of the economic
effect of the facility on the surrounding community. ' ' (citing CWM. at 9). But, as in CWM. the
Board went on to identify "two areas in the UIC permitting scheme in which the Region has the
ssary discretion to implement the manrfarg* of the Executive Order. "
The "two areas" described by the Board as existing within the Safe Drinking Water Act
UIC program are virtually the same as1 those described by the Board in CWM as existing within
RCRA. The first is the right to public participation, allowing the Region to "exercise its
discretion to assure early and ongoing opportunities for public involvement in the permitting
process." The second area of discretionary authority the Board derived from 'regulatory
'omnibus authority' contained in 40 C.F.R. 144.52(aX9)." which authorizes "permit conditions
sssary to prevent migration of fluids into underground source of drinking water." The
Board reasoned that "there is nothing in the omnibus authority that prevents a Region from
performing a disparate impacts analysis when there is an allegation that the drinking water of
minority or low-income immmuHttiea may be particularly threatened by a proposed underground
injection well. Finally, the Board concluded mat die Region should exercise its discretionary
authority to "n^^rtain* such art analysis "when a commenter submits at least a superficially
plausible claim that a propo«d underground injection well will disproportionately impact the
drinking water of a minority or low-income segment of the community in which the well ia
located."
Applying this framework to the Region's actions in this case, the Appeals Board
concluded that the Region took adequate steps to implement the Executive Order 12898. The
Board took note of the two days of informal hearings convened by the Region to allow
surrounding communities to voice their concerns and the demographic analysis performed of the
area surrounding the site. The Board upheld the Region's decision to base that analysis on a
two-mile area, rejecting miimaiiilty opponent arguments that the subject area was too small
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Draft Memorandum -:- Not For Quotation Or Citation In Anv Manni»T
The Appeals Board's ruling is positive for environmental justice advocates to die extent
that it demonstrates die Bojirti's wflhngness to find that die Agency can base discretionary
authority to promote environmental justice in its regulations and. therefore, presumably need not
rely on statutory language iff die first instance, m CWM, die omnibus authority was contained
in statutory language. Second, die omnibus language upon which the Board relied on in
Envotech was less obviously "expansive dan that construed in CWM (Section 3005(c)(3) of
.RCRA). The Board's willmgness to find such, broad based audiority in die regulatory language
"necessary to prevent migration of fluids" increases die possibility fhat similar omnibus audiority
can be found in odier environmental statutes and regulations. As footnoted by die Board, die
Board has already indicated mat "necessary" could "arguably extend to imposition of more-
stringent financial re3ponaibn% requiremojisu^ are generaUy prescribed for inCpenmttees.'
If so. "necessary11 might likewise: extend to more stringent monitoring and reporting
requirements, or even enhanaiiient of community enforcement capacity, for dwse facilities
located where there is reason to believe that absent such a condition, there will not be die ldT*4
of o'rersighi necessary for cohipliance assurance.
The more sobering assessment of me Board's opinion in Envotech is its reiteration that
EPA's exercise of expansive permit authority to promote environmental justice will most likely
occur only if the Agency takes nx initiative. As in Envotech (and CWM), neidier die Appeals
Board or a reviewing court is very likely to order EPA to take such action (either by denying
or conditioning a permit). Tile Board'! decision not to do so here is entirely consistent with its
repeated characterization of EPA's authority as "discretionary" and die narrow scope of me
Board's review of a Region^ permitting determination. Hence, die challenge EPA now faces
is to persuade die Regions End delegated state permitting authorities to seize and exploit die
discretionary audiority diat die Board has now mad* clear diey possess to fulfill Executive Order
12898's Trn™1"***
TTT. Surrey of Federal Environmental Statutory Provisions Authorizing Permit
Condition* or Denials Based On Environmental Justice Considerations
The history of environmental I** is replete widi exanales of instances m which broadly
worded statutory language or regulations have been successfully gnlittcrt in support of arguments
dial EPA has authority beyond that initially contemplated by die regulated entities,
environmentalists, affected ftfritiBfmafaa. or even the Agency itself. The Refuse Act's
restrictions on water pollution, NEPA's strict procedural requirements, die Clean Air Act's PSD
program, and, more recently. Section 401 of die Clean Water Act, are all very much products
of such innovative and expansive interpretations of existing statutory language.
The issue now before d>e Agency is whedier misting statutory and regulatory language
can similarly be resurrected on behalf of environmental justice. Notwithstanding their generally
rigid outlook, die Appeals Board opinions discussed above set forth two possibilities: die
omnibus clause contained in Section 3005(cK3) of RCRA, discussed in CWM of Indiana, and
11
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the omnibus clause cormrftrd in the Safe Drinking Water Act regulation, 40 C.F.JL
144.52(a)(9), discussed in the Envottxh. What this portion of oils memorandum »fr« to
accomplish is to exarnme the statutory language of each of the several environmental protection
laws, one statute at a time,, in. an effort to identify other clauses that might similarly support
expansive understandings of .EPA's authority to promote environmental justice through permit
conditions and denials. This review does not purport to be exhaustive of all possibilities. The
hope is insrrari that this memorandum may serve as a catalyst to prompt others, especially.those
far more familiar with the statutory and regulatory intricacies of the various programs, to find
other examples as welL
A. dean Air Act
Within the Clean Air Act, there are plainly many opportunities to infuse environmental
justice concerns more into the Act's substantive standards than the Agency has historically done.
For instance, determination of National Ambient Air Quality Standards (NAAQS) qq^rr Section
109 are supposed to be based on subpopulations that are especially sensitive to the adverse
effects of pollutants. 42 U.S.C. 7409; see Lead Industries Assoc. v. EPA 647 F.2d 1130 (D.C.
Cir. 1980). Looking more to me subpopulations having the characteristics of those residing in
low-income communities and commtmities of color, which often have the most sensitive
subpopulations, would make"those air pollution control standards more responsive to the
Aching* of environmental justice. Air quality criteria, upon which the NAAQS are based are
supposed to include infbrmstien on "those variable factors * * * which of themselves or hi
combination with other factor* may after the effects on public health or welfare.* 42 U.S.C.
7408. These "variable factor*' ahnHlri likely include many of the kinds of characteristics of .
gnvimnTTienfai justice eniTimimiriea that render the harmful effects of pollutants on those already
environmentally stressful communities even more harmful.
The Clean Air Acf s aprattanimenf provisions also offer several opportunities. An
explicit objective of the Subcaapter D's Nonacainment Program is "to assure mat any decision
to permit increased air pollution in any area to which mis section applies is marir only after
careful evaluation of all the consequences of such a decision and after adrquatt procedural
opportunity for informed pubBcparticipation in the decisionmnldng process.' 42 U.S.C. 7470.
Prior to any rcdesignation of any Tjc)nEgi"'"m^n* area, there nroit be notice >tv^ a public fr^rrpg
in the areas proposed to be redesignated. And, prior to that hearing, "a satisfactory description
and analysis of the health, environmental, economic, social, and energy effects of dw proposed
redesignation «fr«H be uicytrBJ * Id, F*wrnnmgnft>i justice concerns naturally fan within the
legitimate scope of rocfa analysis. Sanctions for failure to TDfft aooattainment requirements
would likewise seem to offer a basis for redressing environmental-justice concerns. Such
sanctions extend to "such «A*fSfip»l measures as the Adininistrator may reasonably prescribe,*
which sfrn« sufficiently open-ended to MT^TK? to environmental justice concerns in appropriate
circumstances. 42 U.S.C. 7509
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Draft Memorandum -•--•Rot For Quotation Or Citation In Anv Manner
Another example of a Clem Air Act provision potentially allowing for greater
importation of envirouiueuutt Justice's concern with risk aggregation is the waiver provision for
innovative technological systems of continuous emission reduction applicable to Section Ill's
new source performance standards. A condition for determining whether an applie&oK for a
waiver from certain requirements otherwise applicable to a person proposing to own or operate
anew source is "demonstratfjidn] to die satisfaction of the Administrator mat the propose system
will not cause or contribute Umnreascttable risk to public health. * 42 U.S. C. 741 lj(l)(A)(iii).
The statutory emphasis on. public health and inclusion of "contribute to" would seem to permit
the Administrator to take ions account the cumulative public health impact of the facility on the
affected community.
EPA's enforcement aumotity under the Clean Air Act likewise allows the Agency to take
account of environmental justice in allocating its enforcement resources. EPA's decision to
a civil or criminal enforcement action is generally a ""**?* of administrative agency
discretion to exercise as the Aininistrator deems 'appropriate." There is reason to believe that
historically federal and state enforcement of environmental protection laws has act occurred at
a level commensurate widt the environmental risks presented in environmental justice
communities. Under the statute, EPA has the discretion to reallocate Us enforcement resources
in a manner that more actively promotes those communities for government oversight and
enforce
Even more specifically i the Clean Air Act's penalty assessment criteria, would seem to
allow the Administrator to take account of the special need for a credible enforcement threat in
those communities that have not generally benefited from enforcement in the past. Section 113
provides that "in H<.M^miiwiff tf* *tnannt nt any penalty m hg amesied," the Administrator shall
take into consideration several specific factors and "such other factors as justice may require."
42 U.S.C. 7413. The Administrator could deem environmental justice concern with the absence
of government enforcement m the past and the lack of community resources to oversee a
facility's compliance as cause of *nh"T'*< penalties for violations in certain communities.
For the purposes of tftirmemoraadum, the Clean Air Act provisions of greatest interests
are those that may allow ute permitting authority greater discretion to take into account
environmental justice concerfli Sa the permitting process, mr.hiding use of the permitting process
to build community enfoimnent capacity. Section 504 would seem to confer on EPA just such
authority. Subsection (a) provides that- '[ejach permit issued under this subcrapteslian include
* * * such, other conditions a* are necessary to assure compliance with applicable requirements
of this chapter." A major component for achieving compliance assurance under the Clean Air
Act is the citizen suit component of that statute. For, absent a credible enforcement threat, there
will be no compliance asstniaaGe. Subjection (a), therefore, would seem to authorize EPA to
impose as a condition on the* recefrmg Clean Ah- Act permits that they take certain steps in
order to enhance the affected community's ability to ensure the permitted facility's compliance
with applicable environmeaal; protection laws. Steps could range from simply providing more
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access to the mforma^bnaecessary to oversee the permitted facility's operation and
compliance to even perhap«.working to ffihnirr the resources of a citizen group charged with
overseeing environmental enforcement and compliance assurance. To tfrar
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conunumty enforcement capij'ity. Momtonng reports and general gfmTpliariffy information could
be directed to community groups in the first instance, obviating the need to &avsl to
inconvenient locations. In a^u^iiatgciiuuuLffimMs. a local community organization sijk[ ?Iss
become an "authorized representative1' of the Administrator, which would allow the orgasiiificjc.
a right of curry and inspectfoo.
In addition to providing EPA: with discretionary authority to target its resources in
enforcing the Clean Water Act in a manner more responsive to the needs of environmental
justice coraraunities, the Clean Water Act also permits administrative and civil penalties to tale
into account •*pqmiiii)»iiiMi-jniftiig conn us, perhaps as a reason for increasing the fine (hi order
to ensure compliance in an ami long subject to ncncompliance). Section 309(d) provides that
civil penalties may be calcrtfitittl based on several factors including "such other matters as justice
may require" »«j subsection (g), regarding administrative penalties, includes ^^ntrr^i language.
33 U.S.C. 1319(d), (g). Tbfi use of "justice" in this context confers on EPA considerable
discretionary authority beyofld that provided in those instances where the exclusive statutory
touchstone is "health and the environment." Environmental justice's distinct concern with
disproportionality and equity easily tails within the "justice" rubric.
Section 402 of the Act, however, is likely the most significant potential source of permit
conditioning authority. Section 402 provides mat the Administrator may issue a permit for the
discharge of any pollutant
upon condition that such discharge will meet either (A) all applicable requirements under
sections 301. 302, 306, 307, 308, and 403 of this title, or (B) prior to the taking of
necessary implementing, actions relating to all such requirements, such conditions as the
Administrator determines are necessary to cany out the provisions of Ms diopter.9
42 U.S.C. 1342(a)(l). Clause (B) would seem to confer on me Administrator wide ranging
authority to impose permit ""conditions promoting environmental justice. There are two
limitations: (1) die authority exists only prior to taking of certain anplffmrnfrng actions: and (2)
the conditions must carry out' the provisions of this Act But, bo* could be met. The
Administrator has most certainly not taken all implementing actions tinder several provisions,
for instance, Section 302 discussed above. And, brcimsft the purpose of the condition
» . • m »» _ _ ^__ j --*- _
provisions of this chapter.
C. Resource CoaaeniBod tail Recovery Act
The Resources Conservation and Recovery Act (RCRA) includes many provisions die
broad wording of which leaves EPA with substantial authority to take environmental justice
15
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concerns into accxnmf in the Agency's implementation of mis law. The touchstone for the
Agency's promulgation under RCRA of regulations applicable to generators, transporters, and
owners and operators of hazardous waste treatment, storage, and disposal fadlitira is the same:
"as may be. necessary to protect human health and the environment.11 42 U.S.C. 3002(a),
3003(a), 3004(a). Because; as discussed in Part I above, OK of the major lessons of
environmental justice is mat EPA's past failure to account for the effects of aggregation of "«VE
and cumulative impacts has caused EPA's existing standards not to protective of human health :
and the environment* in certain commnnirira. EPA's authority under RCRA to correct this
problem cannot be gainsaid. The relevant statutory language specifically directs the Agency to
do what it paf* only do by c^nf^ter '"n the a<**nai hrnnan health rtyj environmental effects of
waste OIL disparatsiy affected low-income gnrnnmyiitiyT OT gniMIIIITTlifW5 Of
color.
Section 3004 of RCBA, which applies to owners and operators of hazardous waste
treatment, storage, and disposal facilities, further elaborates on the kinds of standards that EPA
may promulgate. Several have significant implications for environmental justice. For instance,
Section 3004**•»«<* of their own limited resources, may require the owner and operator
to invest more of its own leaouim into the community to develop and implrmrnt such plans.
Finally, EPA could consider the socio-economic, racial, and ethnic makmp of a community in
promulgating requirements regarding "qualifications of ownership1' and * training for personnel."
A major problem in the past has been the lack of adequate training in bridging the gap between
the comrnoniry and a regiilattd facility loca^ wiiMn u^ Special training may be
16
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needed for personnel upeiailag facilities within communities, tnehidfag (fast possibly, the hiring
of more individuals who are themselves resident* of die affected community.
EPA- also possesses under RCRA the authority to target its enforcement resources in a
manner more responsive to ther needs of enviromuental justice communities. RCRA is different
from the Clean Air Act and Clean Water Act because it does not similarly inchide an express
provision that the penalty may be based on "justice," but the Administrator is instructed to
account for the "seriousness of the violation" in eafatiaring the appropriate penalty in a
compliance order. In many circumstances, environmental justice concerns could relate to the
"seriousness" of a particular violation;
EPA's inspection authority is likewise susceptible to being ""p^^refffffl in a m**wr more
responsive to environmental justice. EPA has inspection authority, but so too does a "duly
designated * * * representative" of the Agency. 42 U.S.C. 6927(a). Records, reports, or other
information obtained by EPA pursuant to its inspection authority is also supposed to be made
publicly available. 42 U.S.C, 6927(b). EPA could strive to ensure that such information is
meaningfully available to those who- reside in communities who might otherwise not have ready
access to documents that are— available" only in name. EPA is also authorized to "
between classes and categories of facflftiea commensurate with the risk? posed by each class or
category" in ensuring thorough and adequate inspection of regulated facilities. 42 U.S.C.
3007(e)(l). Arguably, one class or category of facilities warranting special attention are those
in Bnvir?n^rc^tiT?l justice
With regard to permit conditions, EPA has considerable authority to take environmental
justice concerns into account in its permitting decisions by considering the possibility that a
particular community is berny subject to disparate environmental risks. As described by the
Environmental Appeals Board in CWM of Indiana, Section 3005(c)(3) provides mat "[ejach
permit issued under this wtK*n «h*Ti tyntam such, term* atid gnn^itinng as the Administrator (or
die State) determines unyt''^ to protect human health and the euvuoiiment.* 42 U.S.C.
6925(c)(3). As in Section* 3002, 3003, and 3004, already discussed, this language in the
permitting provision 'permits' the Agency to "takfe] a more refined took at its health and
environmental hBprTf ******** m tight of allegation* that operation of the facility would have
a disproportionately advene effect on the health or environmental of low-income or minority
populations." Such a closer Damnation could justifypermit conditions (or presumably denials)
based on adverse effects on a disparatery affected community mat would otherwise be
"mask[edl" if the regulator undertook only an "analysis of a broad cross-section of the
community."
• : ^
Permit conditions coulfc however, be more far ranging. Protection of human health and
the environmental turns on dwmliance assurance and permit conditions might, accordingly,
extend to those needed to |»miote conniunity enfbrceiMnt capacity. As previously discussed,
such enforcement capacity i» essential to the statute's accompushments of Us objectives,
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Draft Memorandum --: frot ?or Quotation Or citation m Anv
especially in low-income rjimtnirnftirs and communities of color that, i«-v™g tjiat edacity in
the past, have been the I'epnfrd victims of environmeaial noncompliance.
Finany, one other RCRA provision worthy of special mention is Section 4002, which
governs the federal guiddfnes for state solid waste management plans. Among the
considerations relevant to m* promulgation of those guidelines are "the political, economic * •
* problems affecting compnftensive solid waste management," 42 U.S.C. 6942(c)(9). There
are many disagreements regarding the fnenm'ng and portent of claims of environmental injustice.
There can be little dispute,. Bbwever, mat environmental justice presents a major "political * •
* problemQ affecting solid wxste management.''
D. Safe Drinkfef Water Act
The Safe Drinking Water Act mcludirs much of the «mg kinds of opportunities already
mentioned in the context of mfe Clean Air Act, Clean Water Act, and the Resource Conservation
and Recovery ACL The Administrator retains the usual «igntfieaTit discretion to target
enforcement based on environmental justice factors and civil penalties are assessed based on
several factors including "such other matters as justice may require." 42 U.S.C. 300hr2.
In some respects, tnotqjh, the Safe Drinking Water Act may be especially susceptible to
infusion of environmental justice concerns because of the statute's broad wording. For instat*^
the Act directs the Adftiinkmtm , in promulgating national primary drinking water regulations
to consider several specific factors, but men also "other factors relevant to protection of health. *
42 U.S.C. 300g-l(b)(7)(C)(i). The kinds of risk aggregation and cumulative impacts disparatery
affecting environmental justice communities would seem to be such a relevant factor. In
addition, in establishing the list of contaminant level goals, the Administrator forms an advisory
working group that must farindg members from several specified offices (e.g.. Office of
Drinking. Water, Pesticides, Toxic Substances) "and any others the Administrator At*m*
appropriate.* 42 U.S.C. 300grl(b)(3)(B). In light of Executive Order 12898, the Office of
Environmental Justice could now easily be considered another "appropriate" office for this
advisory working group.
Likewise, although met Act pennies a State with primary enforcement to grant variances
in certain circumstances, the itatmy further provides that any ?jch variance "shall be conditioned
on such monitoring and other requirements as the Administrator may prescribe." Here, too, the
Administrator could strive to- fashion conditions that reflect the kinds of risks of noocompliance
faced especially by many environmental justice communities.
Finally although tni«. mgmCTramfam does not purport to UT^T^^ an exhaustive review
Get alone any meaningful review) of Agency regulations in search of those providing the Agency
with open-ended authority relevant to environmental justice, the Appeals Board has already
identified one such regulation mmlememing the Safe Drinking Water ACL In Envotedt, the
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Draft; Memorandum —' Wot For Quotation Or Clfcatlon In Anv
Board ruled that EPA possesses substantial discretionary authority deriving from "regulatory
'omnibus authority' contained in 40 C.F.R. 144.52(a)(9). As described by the Board, that
regulation "authorizes peinut conditions 'necessary to prevent migration of fluids into
underground source of drinking water.'" The Board reasoned that "there is nothing in the
omnibus authority mat prevents a Region from performing a disparate impacts analysis when
there is an allegation that the drinking water of minority or low-income communities may be
particularly threatened by a proposed underground injection well."
E. Toxic Sobstaricei Control Act
The Toxic Substances Control Act (TSCA) is one of the few environmental laws to
include an explicit environmental justice program, albeit of a quite Kmftrd scope. The
provisions dealing with t»**h"fcjF and grant assistance to the States for radon programs expressly
target "homes of low-income persons" for such affiisftnra. 15 U.S.C. 2665(a)(6), 2666(i)(2).
Although the assistance provisions of the other laws do not include such a mandate, they do not
preclude such a preference and, based on the Executive Order, EPA plainly has the authority
to provide it.
kite the other environmental laws, TSCA's substantive standards are responsive to
environmental justice. Environmental justice is implicated in testing and data gathering under
TSCA. TSCA also looks to 'cumulative" and "synergistic effects" in determining the regulatory
border between reasonable and "unreasonable risk to health or the environment" (15 U.S.C.
2603(a), (b)(2)(A)), which are precisely those effects that environmental justice reaches have
been too often overlooked in considering risks imposed on low-income communities and
communities of color.
Finally. TSCA is «g™*fc«tf because Congress instructed the Administrator to "carry out"
the law by considering the 'environmental, economic and social impact of any action the
Administrator takes * * *." 15 U.S.C.2601(c). Hence, wholly apart from the Executive Order.
the EPA possesses wide ranging authority in implementing TSCA to consider environmental
justice concerns in fashioning'and enforcing the Act's requirements.
F. Federal T-—"•*"**», Ftmgidde, and Rodortidde Act
The Federal Insecticide, Fungicide, and Rodenticin^ Act ccmlOT substantiil aumorh^ on
the Adrninistrator to address eirvironmental justice concerns. EPA's principal responsibility in
administering FIFRA is in itr registration of pesticides to guard against munreasonable adverse
effects on the environment.- 7 U.S.C. 136a. Environmental justice is concerned with FIFRA's
adrninistration for many reasoat, but one major reason is because of the substarrial threat to the
health of farmworkers posed by unreasonably dangerous use of pesticides. FIFRA provides EPA
with significant authority to ****** these unreasonable risks, including use and disposal
restrictions, labeling requirements, registration denials, and conditional registrations. EPA's
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Draft Memorandum -- Net For Quotation Or citation Tn Anv
authority is broadly worded, thereby leaving the Agency with significant discretionary authority
to take into account wide ranging concerns in implementing FIFRA. Environmental justice
concerns with risk accumulation, cumufarive effects, worker notice, all fall easily within the core
of the Agency's regulatory authority urtrirr FIFRA. See 7 U.S.C. 136a.
CONCLUSION
This memorandum is Irifnulni merely as an opening salvo in an effort to prompt EPA
to strive more systematically to use its considerable penni&ng authority to promote
environmental justice. As stressed at the outset, this memorandum does not purport to set forth
for discussion all of the many authorities that EPA possesses. Its purpose is far more modest:
to survey some of the provisions of the major laws for examples of open-ended statutory
language capable of ™fa«fag ^environmental justice concerns more into the lawmaking and
permitting process. There are undoubtedly significant provisions mowing from rt»« presentation.
The memorandum, moreover, 'barely begins to explore the potential presented by similarly open-
ended authorities created by EPA regulations rather than by congressional statutes. And,
conversely, there may well be statutory provisions that have been tnrin/fr*} that, upon further
reflection, would prove capable of carrying the weight that this memorandum may too
optimistically assign to them (at least without changes in existing Agency regulations).
But whatever the risks of under- and overindusxveness inherent in this
what remains clear is that EPA has considerable authority to promote environmental justice
through permit conditions and *fg«"0* (and registration conditions and denials) mat the Agency
has yet to enlist effectively. One area plainly ripe for exploitation is EPA's substantial authority
to account better for the aggregation *"d accumulation of risks in environmental Justice
communities in the Agency's permitting decisions. EPA has far more authority than it has
historically acknowledged to restrict and deny the operation of environmentally risky facilities
based on the factor mat the annimurrify- to be exposed is already disparately subject to such risks
from other sources. EPA aliso possesses considerable authority to use its permitting authority
to condition petnift? in « mimyigr ffap* requires the regulated entity itself to help the exposed
community to build the enmmanity gHfmrgment capacity necessary for the community to oversee
and ensure the facility's corngitance with applicable environmental laws. Nor is there anything
nntntimrri nr hnpmper about tegnirigg me regulated facility to do so. Indeed, quite the opposite
is true. Such community enforcement is an indispensable element of the statutory scheme
by Congress and a necessary ffe"ygT* of any executive branch program Lulrmtrd to fulfill
die President's environmental justice ^Mtviatg in Executive Order 12898.
20 000262
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