United States           Enforcement and         EPA/300-R-00-004
     Environmental Protection       Compliance Assurance       July 20,2000
     Agency             (2201A)            www.epa.gov/oeca/oei

     Office of Environmental Justice
     Environmental  Justice in
     The  Permitting Process:
     A Report from the Public Meeting on Environmental
     Permitting Convened by the National Environmental
     Justice Advisory Council, Arlington, Virginia -
     November 30-December 2, 1999
      ?/EPA
  National Environmental Justice Advisory Council
A Federal Advisory Committee to the U.S. Environmental Protection Agency

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                         TIPS FOR THE READER

The references referred to in this report are coded as follows:

TR    Refers to the transcript page of the NEJAC plenary sessions conducted on
       November 30 and December 2, 1999, which are attached with this report.
       Each report page contains 4 transcript pages; e.g. 1-5 appears on the 2nd page
       of the attachment.

R     Refers to the page number in the Pre-Meeting Report which is available as
       Appendix A on the EPA Web Site.

   Appendices referenced in this  report are not included as part of the
           printed copy but are available from EPA's website:
                 http://www.epa.gov/oeca/main/ei/neiacpub.html

Appendix A - Pre-Meeting Report (includes Stakeholder Interviews)
Appendix B - December 1999 NEJAC  Executive Meeting Summary
Appendix C - NEJAC Air & Water Subcommittee Comments on the
                    Draft Urban Air  Toxics Strategy April 6, 1999
Appendix D - Transcripts from NEJAC Meeting
             I - November 30 Plenary Session is Attached
             II - December 1 Public Comment Session on EPA Web Site
            III - December 2 Plenary Session is Attached
                                 Disclaimer
This report and recommendations have been written as a part of the activities of the National
Environmental Justice Advisory Council, a public advisory committee providing external policy
information and advice to the Administrator and other officials of the United States Environmental
Protection Agency (EPA). The Council is structured to provide balanced, expert assessment of issues
related to environmental justice.

This report has not been reviewed for approval by the EPA and, hence, its contents and
recommendations do not necessarily represent the views and policies of the EPA, nor of other
agencies in the Executive Branch of the federal government, nor does mention of trade names or
commercial products constitute a recommendation for use.
                                   Inside Front Cover

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                      TABLE OF CONTENTS

   I. BACKGROUND                                          5

   II. KEY POLICY RECOMMENDATIONS                      9

     A.   Legal Authority to Address Environmental Justice
          Issues in Permitting                                  9

     B.   Substantive Permit Criteria                           16

     C.   Community Involvement/Public Participation            17

     D.   Enforcement                                        18

     E.   Land Use/Zoning                                    19

III.  ADDITIONAL POLICY RECOMMENDATIONS              21

IV.  APPENDICES                                            34

     Appendices A-C and D-II can be found on the EPA Web Site)

     A - Pre-Meeting Report

     B - December 1999 NEJAC Executive Council Meeting

     C - Air/Water Subcommittee Comments on Draft Urban Air Strategy

     D - Transcripts from November 30-December 2,1999 NEJAC Meeting

           I - November 30,1999, Transcript (Attached)            35

           II - December  1,1999, Transcript (On EPA Web Site)

          III - December 2,1999, Transcript (Attached)            128

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           I.      BACKGROUND

        EPA, through its Office of Environmental Justice, asked the National Environmental Justice
Advisory Council (NEJAC) to provide advice and recommendations on the following question:

        In order to secure protection from environmental degradation for all citizens, what
        factors should be considered by a federal permitting authority, as well as state or
        local agencies with delegated permitting responsibilities, in the decision-making
        process prior to allowing a new pollution-generating facility to operate in a minority
        and/or low-income community that may already have a number of such facilities?
        To address this question, NEJAC scheduled a three (3) day public meeting of industry,
government (federal, tribal, state, and local), academic, and community stakeholders to explore whether
and how the issue of environmental justice could be integrated into the permitting process.  This gathering
represented NEJAC's first public meeting to focus entirely on a single issue.

        As a prelude to the meeting, the Office of Environmental Justice commissioned a report
summarizing interviews with a representative sampling of stakeholders scheduled to participate in the
public meeting. Twenty (20) stakeholders were interviewed: eight (8) representing EPA programs, three
(3) representing industrial interests, three (3) representing academia, three (3) representing state or local
governments, two (2) representing  community organizations, and one (1) representing a Native American
tribe. The pre-meeting report presented the responses of those stakeholders to a series of questions
developed by the Office of Environmental Justice, identifying both potential areas of agreement as well as
fundamental differences in perspective.  (The Pre-Meeting Report, including a list of interviewed
stakeholders and their organizational affiliations, can be found on the EPA Web Site as Appendix A.)

        In general, stakeholders agreed on the need: (1) to address the issue of incorporating
environmental justice concerns in permitting, (2) to define more clearly what the permit writer should do
when confronted with disparate treatment, (3) to address cumulative impacts in some fashion (whether
through permitting, regulation, or cooperation with land use agencies), and (4) to involve the community
in permitting decisions.  Stakeholders differed in their view: (1) of the appropriate overall Agency goal in
permitting, and (2) of what now transpires in the permit process.  R. 6-8, 10-16, 19-21.

        For example, when asked whether the permit agency should address pre-existing conditions with
potential health or environmental impacts in permitting, community stakeholders reply simply and
emphatically "Yes!"  They cited communities where "shelter in place" alarms are a regular feature of
community life. ("Shelter in place" refers to governmental strategies which seek to minimize human
exposure to high air pollutant episodes by recommending residents go inside whenever an alarm whistle
is sounded.)  To community stakeholders, this signified that "the system is broken....  There is no study
which proves that "shelter in place" works, that [ordinary residential] structures adequately protect
people...."  They stressed the need for meaningful planning and siting so that the number of people
adversely affected in a worst-case pollution scenario is minimized or eliminated.  R. 10.

        State, local government, tribal, and academic stakeholders agreed that permit agencies should
address pre-existing conditions. One emphasized these factors "may be more important than sporadic
permit issues." Another added that such considerations "should not be an afterthought, but should be
raised early in the process and used as a guideline for determining whether any [siting] action should be
taken at all." A third concluded, "A responsible agency looking out for the community's interests should
relatively level the playing field." R  10.

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       Industry stakeholders approached this environmental justice goal more cautiously.  They
acknowledged "agencies have to deal with cumulative risk in some fashion," but stressed the need for
"legal authority," "clear criteria for injustice," "enough information on emissions and health effects to
make clear calls," "[and avoiding having] the system bog down." They questioned whether "agencies
have the resources to have permit writers become fully conversant with these issues" and emphasized that
different perceptions on the issues may exist even within the local community, further complicating
review.  R. 11.

       Nonetheless, industrial stakeholders shared with other stakeholders a willingness to explore
approaches to environmental justice in permitting.  While not endorsing any particular solution, industry
stakeholders raised the following possibilities:
           (1) Permit agencies can examine, document, and help raise awareness of pre-
               existing conditions.
           (2) There could be  further public scrutiny of zoning and land use planning for
               environmental justice impacts.
           (3) Agencies could publicize more information on what factors contribute to
               successful brownfields projects.
           (4) Rather than subject all permits ~ even minor permits ~ to full- blown
               cumulative impact  analysis, agencies could screen permits to determine which
               merit fuller scrutiny because of the size of the source, toxicity of the
               emissions, or degree of public interest in the outcome.
           (5) Corporate policies  on siting and acquisition could be changed so that
               environmental personnel are integrated into decision-making earlier in the
               process, before  companies are so heavily invested in a particular site. (Under
               current practice, siting is primarily market-driven. Only after a lengthy
               analysis of non-environmental factors,  such as access to supplies and
               transportation corridors, growth potential, etc., does a company look at the
               community, its  environment and quality of life.)
           (6) Where high risks exist due to  prior land use  planning errors, successful
               relocation efforts and voluntary buy-outs could be examined.  In the
               Netherlands, for example, when cumulative  risk analysis indicated that
               community exposure crossed a specified threshold, the government devised a
               5-10 year community relocation plan. Voluntary buy-outs to expand buffer
               zones around industrial facilities have also occurred in the United States. R.
               11-12.

       In general, EPA stakeholders agreed with the goal of addressing cumulative environmental
impacts in permitting (assuming legal authority to do so).  Some, however, expressed interest in limiting
such analysis to major permits, "cancer alleys," or "hot spots," while others appeared to embrace it for a
broader universe of permits. Several recommended greater attention to the environmental impacts  of
zoning and planning decisions, and other stakeholders concurred.  R.  12.

       Stakeholders also shared differing views as to what now transpires in the permit process.
Industry stakeholders saw the current process as largely centered on technical issues of compliance with
federal and state discharge regulations.  Government stakeholders saw themselves  addressing a somewhat
broader set of issues ~ still largely centered on compliance with technology requirements, but also
encompassing public participation,  protection of health and the environment, interagency coordination,
enforcement, and state oversight. In marked contrast, tribal and community stakeholders saw the process
as exceedingly narrow, ignoring treaty rights and community views ~ indeed, driven toward a distinctly
(from their view) biased result.  One cited situations where facility construction is underway while  the
permit application is purportedly still being considered: "Companies wouldn't invest this money if they
didn 'tfeel they could get their permit."  Another put it:  "The process proceeds with an eye  toward

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nothing but technical compliance with numbers and, if there is not compliance, then how can we help the
facility get its permit?" At least one EPA stakeholder appeared to agree: "If the objective [of the
community] is to stop the permit altogether, ... it is hard for EPA to share that goal. Our goal is to make
sure these sources have permits, unless they don't comply [with applicable regulations]." R 13.

        All stakeholders, however, agreed that, absent a stronger or more comprehensive state statute, the
current permit process does not address the type of environmental justice concerns being raised by tribal
and community organizations.  R.  13.

        With respect to potential changes in the current permit process, accord among stakeholders was
greatest on issues related to better  public outreach, expanded community participation in decision-
making, greater assurances of industry compliance, and greater attention to cumulative risks.
Stakeholders differed more sharply over a community's right to prevent siting of a facility which
otherwise complies with applicable regulatory standards.  However, stakeholders acknowledged that these
situations represent a small percentage of permit applications and can frequently be avoided by changed
industry and government behavior (such as early involvement of environmental personnel in internal
corporate decision-making and community representatives in government decision-making.) In short,
stakeholders were optimistic about the possibility  of identifying opportunities for mutual stakeholder
gain.  R. 10-16, 19-24.

        At the meeting itself, the Office of Environmental Justice asked NEJAC to engage in a "robust
policy dialogue" aimed at identifying both deficiencies in the current permit process and remedies or
alternative approaches to permitting.  Tr. 1-40. Participants responded by identifying eighty (80) policy
recommendations for implementation by EPA, other federal agencies, states, tribes, community
organizations, and permit applicants.  (A complete list of policy recommendations is outlined below in
Section III of this report.)

        These recommendations received varying degrees of consideration by NEJAC. Some reflected
extensive deliberation by NEJAC subcommittees.  The recommendations for siting and operating waste
transfer stations, for example, were the product of a two (2) year review by NEJAC's Waste and Facility
Siting Subcommittee. The Subcommittee toured waste transfer stations in two (2) cities (New York and
Washington, D.C.) and gathered public testimony from numerous stakeholders, including private sector
witnesses, community groups, and federal, state, and local officials. Their review culminated in a nearly
fifty (50) page technical report accompanying their policy recommendation. Tr. III-143-146.  The urban
air toxic strategy recommendations likewise had been amply debated. NEJAC's Air and Water
Subcommittee had culled over 200 recommendations to EPA during the rulemaking process; many of the
Subcommittee's final recommendations have yet to be addressed and remain relevant during the
implementation stage of the strategy.  Tr. III-l 16-118. The NEJAC public meeting offered the various
subcommittees a forum to present  such findings and recommendations to a larger audience.

        Other recommendations illustrated substantial academic research.  Professor Yale Rabin from the
Massachusetts Institute of Technology reported observations gleaned from thirty-five (35) years of
scrutinizing disparities in delivery  of municipal services to low-income and minority communities in at
least sixty (60) locations throughout the United States. Tr. 1-165-169.  Professor Richard Lazarus from
Georgetown University Law Center appended a draft law review article to his recommendations on legal
factors in permitting. Tr. 1-42-59.  Again, the meeting presented an opportunity to highlight the product
of such scholarly investigation.

        Still  other recommendations emerged from Agency representatives or from other stakeholders
addressing NEJAC with their ideas ~ sometimes for the first time ~ at this public policy meeting.

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Participants had an opportunity to outline the contours of a debate on the merits of at least some of these
additional recommendations;1 others were merely noted for future reference.

       The primary purpose of this public meeting was a creative, wide-ranging identification of policy
options rather than a resolution of the relative merits and disadvantages of each proposal. The Office of
Environmental Justice promised participants a follow-up report which would serve as an interim step in
the formation of NEJAC's strategic policy advice to the Agency. Tr. III-8-16.  This report, therefore,
aims to cull the recommendations, identify the specific actions requested or implied of EPA or other
stakeholders, and present a decision document for NEJAC's review and action.

       To facilitate further review by both NEJAC and EPA, this report groups the eighty (80) policy
recommendations by key themes. Five (5) key themes emerged continually in stakeholders' discussions.
These themes,  and the recommendations related to them, affect all federal permit programs, regardless of
media, location, or implementing agency.  Since these themes form the premise of many of the more
media-specific, geographically-based, or Agency-directed policy recommendations, these proposals are
presented in detail, along with background information, in Section II below.

       At the public meeting, NEJAC approved several of the policy recommendations contained in this
report; any such approval has been noted alongside the recommendation and a copy of the relevant
NEJAC resolution can be found in the December 1999 NEJAC Executive Summary  on the EPA Web
Page as Appendix B.  The bulk of the recommendations, however, have yet to be debated fully by
NEJAC.  It is important to stress, therefore, that the policy recommendations identified in this
report do not  represent the views of the Office of Environmental Justice, the author, or NEJAC
itself. They are merely interim (albeit often extensively researched) suggestions for NEJAC's
review and approval.  Indeed, a few (primarily those pertaining to streamlined, expedited permitting
and emissions trading) could, without further clarification, be interpreted as mutually exclusive.

       Several recommendations pertained to a single site. For example,  NEJAC heard pleas to clean
up Metales y Derivados, an abandoned site in Tijuana, and Condado Prestos in Ciudad Juarez, Tr. 111-89,
and to conduct a site assessment of the El Gato Negro site in Matamoros Tamaulipas, bordering
Brownsville, Texas. Tr. 111-90.  Recommendations pertaining to single sites have not been included here,
although NEJAC subcommittees will address these issues  separately.

       Finally, for a full understanding of the policy recommendations outlined below, this report should
be read in conjunction with the Pre-Meeting Report and the December 1999 Executive Meeting
Summary, which are located on the EPA Web Site as Appendix A and B. The pre-meeting report outlines
how important the issue of environmental justice in permitting is, defines key stakeholder goals, and
critiques  the current permit process.   In short, it explains why stakeholders desire policy reforms and
what the  general nature of those reforms should be. With that backdrop, this report begins to tackle the
thorny question of how to achieve stakeholders' shared permit goals, whatever they may be.

       Several of these policy recommendations come directly from stakeholder presentations;  that is,
stakeholders identified problems, formulated solutions to those problems, and articulated a clear
methodology for accomplishing those solutions. Others emerged in a less direct fashion; stakeholders,
acting as the story-tellers for communities with little political clout, voiced their frustrations, leaving it to
policy analysts to shape their experiences into recommendations for Agency action.  Wherever possible,
these experiences, too, have been outlined in the form of implied remedies, so that the recommendations
before the Agency reflect the full range of stakeholder insights presented at the meeting.
1 See, for example, the EPA Air Program's proposal for permit flexibility in communities with proactive emission
reduction programs and some stakeholders' reservations. Cf. Tr. 1-140-148,111-25, 29-46 with Tr. 1-145-148, 227-
228,271-272,318,327-332,111-41-45,59,62-64, 113-114, 163, 167-178.

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II.     KEY POLICY RECOMMENDATIONS.

        Five (5) key themes surfaced repeatedly in both stakeholder interviews and public testimony.
These concerned: (1) the need to clarify what legal authority the permit writer has to address
environmental justice issues in permitting; (2) substantive permit criteria (including cumulative impacts,
degree of risk, community demographics, and  disproportionality of risk); (3) community involvement in
the decision-making process; (4) enforcement; and (5) the relationship between land use/zoning and
environmental decisions. This  section of this report discusses each in turn.

A. Legal Authority to Address Environmental Justice Issues in Permitting.

Background:

        Because permit  writers implement statutes and regulations, the need to clarify the permit writer's
legal authority to address environmental justice issues in permitting emerged as a primary stakeholder
concern in both pre-meeting interviews and in testimony at the public meeting.  See R. 20-21 and Tr. I-
234-240, 247-249, 264.

        In pre-meeting interviews, government stakeholders frequently cited their lack of authority to
reject projects on environmental justice grounds.  R. 20. At the public meeting, too, NEJAC heard
repeated testimony that many permit writers believe they lack any legal authority to address
environmental justice concerns in permitting decisions. Tr. 1-46-47. Others believe that environmental
justice concerns may form a basis for more exacting technical scrutiny of a permit, but are insufficient to
deny an application which otherwise complies with media-specific technical criteria. Tr.I-205-208.

        Confusion at the federal level is compounded in state and local permit agencies.  When federal
agencies fail to address environmental justice concerns, essential environmental decisions are left to states
and local governments, which,  in turn, fear tackling them because of potential "takings" lawsuits pursuant
to the "just compensation" clause of the Fifth Amendment to the U.S. Constitution.  Tr. 1-182-183, 251-
253. In addition, existing federal and/or state laws may preempt local authority to regulate.  Tr. 1-184.
(Many states have laws  prohibiting state  agencies from issuing requirements more stringent than federal
requirements.)  Then too, in the absence of clear federal rules or guidelines, states fear being overturned
in court for being "arbitrary and capricious" if they deny a permit on environmental justice grounds.  Tr.
1-204-208.  As one state official explained: "We are looking to EPA for the tools on how to do this."  Tr.
1-262-264, R. 8.

        Industry stakeholders, too, are uncertain of their obligations (beyond the need to avoid intentional
discrimination).  An industry stakeholder summarized,  "On the substance, there is real intellectual
bankruptcy.  What are the rules of the road?  What does the Executive Order forbid?  What is the basis of
a Title VI complaint?  What is the right thing to do?  Companies fear that projects will be abandoned or
delayed without reason and that others will go forward where they shouldn 't....  There is no coherent
understanding of what we're trying to do."  R. 20-21.  In short, stakeholders from government, the private
sector, academia, and community groups agree that legal clarification is a high priority.

        The issue is becoming  ever more prominent as permitting provisions of federal environmental
laws increase in practical significance; whereas once only the Clean Water Act depended primarily on
individual facility permits for implementation, now the Clean Air Act, the Resource Conservation
Recovery Act, and the Safe Drinking Water Act have matured into permitting statutes.  Tr. 1-47.

        In 1996, EPA's  Office of General Counsel prepared a document identifying nine (9) federal
statutes, including the Clean Air Act, Clean Water Act, Superfund, and RCRA, as providing opportunities

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to incorporate environmental justice issues into permit decisions.  Tr. 1-48-51, 237-240 and 247-248.
NEJAC responded by adopting a resolution calling upon EPA to utilize more systematically existing
statutory authority to address environmental justice through permitting decisions.  Tr. 1-48-49.  In
response, EPA regional offices made sporadic efforts to reform permitting practices, but stakeholders saw
little systematic effort by EPA Headquarters to develop a coherent set of guidelines promoting
environmental justice permitting practices.  Tr. 1-49.  Hence, three (3) years later, the status of the Office
of General Counsel memorandum and the extent to which permit writers may honor its suggestions
appears uncertain. Tr. 1-247-249, 264.

        Thus, permit writers face two (2) separate, seemingly unresolved questions: 1) under what
circumstances, if any, does a permitting agency have a duty to deny or condition a permit on
environmental justice grounds; and 2) if there is no mandatory duty, when, if ever, does an agency have
discretion to act? On the latter point, several legal commentators noted that important Agency initiatives
have often occurred in the statutory interstices, where EPA has discretion but no binding mandate. So not
only is there precedent for such an approach, but, indeed, this is where EPA historically exerts its
leadership in crafting an environmental agenda.  Tr. 1-50-55, 223-224, 249. Certainly, as Professor
Lazarus noted, recent decisions of the EPA Environmental Appeals Board suggest there may be
circumstances where EPA is called upon to exert similar leadership with respect to environmental justice
concerns. Tr. 1-55.

        Community stakeholders criticized the Agency for not using existing statutory authority
creatively.  R. 20.  Some also argued that the wording of EPA's question to NEJAC (i.e., "what factors
should be considered  ... prior to allowing a new pollution-generating facility to operate") 'presumes the
permitting agency will allow a new pollution-generating facility in an already burdened community." Tr.
1-234-235, 251-253.  These advocates warned against recommendations limited solely to process (i.e., to
the inclusion of community comment and consultation) rather than to substantive environmental remedies
and argued that EPA's inquiry should be open to the possibility that environmental justice concerns
constitute valid bases for denying a permit altogether.  Indeed, one community representative pointed out
that EPA, unlike the Nuclear Regulatory Commission, had never denied a permit on environmental justice
grounds. Tr. 1-235-236.  The Nuclear Regulatory Commission,  by contrast, found racial bias in the site
selection process and reversed a staff licensing decision on that basis in the case of In re Louisiana
Energy Services. L.P.. 24 N.RC. 77 (1998).  Tr. 1-256.

        Industry stakeholders found this comparison imprecise, noting that EPA and States may advise an
applicant not to apply for a permit or to stop an application mid-process, thereby avoiding the need for
permit denial. Tr. 1-254-256. Thus, the number of permit denials, by itself, may not reflect the true
impact of environmental justice concerns in permitting.

        Where the applicant still wants to proceed, however, the question is a key one because it goes to
the weight to be given environmental justice concerns. Are environmental justice-related factors, on the
one hand, merely factors  to be studied, there to contribute to the quality of decision-making and, in
appropriate circumstances, to dissuade a reasoned agency or permittee from proceeding? Or do
environmental justice-related factors hold somewhat greater weight, increasing the scope of required
mitigation but, again, lacking sufficient weight to delay or forestall a project? Or ~ and this is the
ultimate test of their import ~ do environmental justice-related factors have the ability to stop a project
altogether? In other words, can a project which otherwise complies with all applicable environmental
criteria be denied a permit solely because the project would put undue strain on an already overburdened
community?  At the public meeting or in pre-meeting interviews, stakeholders from virtually every
interest group recommended that EPA squarely address these questions, which are subsumed within the
overarching question posed by EPA's Office of Environmental Justice.
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Recommendation:

       The EPA Administrator should request the Office of General Counsel to provide legal guidance
to federal, as well as delegated state, tribal, and local government permit writers on whether they have
either a mandatory duty or discretionary authority to deny a permit, condition a permit, or require
additional permit procedures on environmental justice grounds.  Specifically, the Office of General
Counsel should address the following questions posed, either in remarks or in prepared material, to
NEJAC at the public meeting by academicians and lawyers representing community groups:

        1.  Does the Rio Declaration on the Environment and Development, which the United
           States adopted in 1992, impose a mandatory duty on EPA, or provide
           discretionary authority, to address  the potential effects of long-term exposure to
           multiple low-level toxins  in permitting facilities in close proximity to
           environmental justice communities?

           Principle 15 of the Rio Declaration commits signatory governments to adopt a
           precautionary approach toward environmental  hazards:

            "In order to protect the environment, the precautionary approach shall be widely
           applied by States according to their capabilities. Where there are  threats of
           serious or irreversible damage, lack of full scientific certainty shall not be used as
           a reason for postponing cost-effective measures to prevent environmental
           degradation. " Tr. 1-239-240 and attachments.

       2.  Does the International Convention on the Elimination of All Forms of Racial
           Discrimination, ratified by the United States in 1994 and made applicable to
           executive agencies, including EPA, by Executive Order 13107 in 1998, impose a
           mandatory duty on EPA,  or provide  discretionary authority, to address
           environmental justice concerns in permitting?

           The International Convention  requires signatory governments to:

            "take effective measures to review governmental, national, and local policies, and to amend,
           rescind, or nullify any laws and regulations which have the effect of creating or perpetuating
           racial discrimination wherever it exists. "

           Executive Order 13107 directs "all executive departments and agencies [such as EPA]
            ... shall maintain a current awareness of United States international human rights obligations
           that are relevant to their functions and shall perform such functions as to respect and
           implement those obligations fully.  "
           Tr.  1-239-240 and attachments.

       3.   Does the National Environmental Policy Act (NEPA) require or authorize EPA to undertake
           a comprehensive environmental impact review of permits in environmental justice
           communities? Tr. 1-170-171.

           NEPA and its implementing regulations require federal agencies to explain the need for any
           proposed project which significantly  affects the quality of the human environment, analyze
           all reasonable alternatives to the proposal, evaluate the "no action" alternative,  and assess all
           impacts, including cumulative, indirect, and socioeconomic impacts. Ordinarily, federal
           permitting must comply with NEPA, but courts have exempted most EPA permits by the
           "functional equivalent doctrine" (i.e., the notion that, since EPA is primarily  an

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environmental agency, EPA accomplishes the same analysis as NEPA-type environmental
impact assessments).

The distinction is significant.  The Nuclear Regulatory Commission remanded a nuclear
material license where it found inadequate consideration of environmental justice concerns.
In re Louisiana Energy Services, L.P., 47 N.R.C. 77 (1998) Tr.  1-256. Some states, such as
California, require similar NEPA-type analysis of major permit  applications and these
analyses can elicit information about significant health and environmental issues. Tr. 1-195.

Does the Clean Air Act authorize or require EPA (and states administering EPA-delegated
programs) to take environmental justice concerns into consideration in the permitting
process?  Relevant provisions cited in a law review article presented to NEJAC include:

    •   National ambient air quality standards (and revisions to the standards)
       must protect the public health of especially sensitive subpopulations. See,
       e.g., American Lung Assn. v. EPA. 134 F.3d 388, 389 (D.C. Cir. 1998).
       (Environmental justice communities frequently include many individuals
       with heightened sensitivity to pollutants due to pre-existing physical
       conditions or environmental stresses from  multiple sources.)

    •   State implementation plans to attain and maintain national ambient air
       quality standards  must not conflict with any provision of federal law,
       including, presumably, Title VI of the Civil Rights Act.  See section
       110(a)(2)(E), 42 U.S.C. 7410(a)(2)(E).

    •   Permits in attainment areas must follow "careful evaluation of a//_the
       consequences of such a decision." Section  160, 42 U.S.C. 7470(5)
       (emphasis added).

    •   Permits in attainment areas must follow "adequate procedural
       opportunities for informed public participation in the decision-making
       process," including a public hearing offering interested  parties an
       opportunity  to appear and comment on "alternatives" and "other
       appropriate considerations" in  addition to air quality impacts and
       emission controls. Sections 160 and 165A2, 42 U.S.C. 7470 and
       7475(emphasis added).  Tr. 1-237.

    •   Sanctions for failure to attain national air quality standards include "all
       measures that can be feasibly implemented in the area in light of
       technological achievability, costs, and any  nonair quality and other air
       quality-related health and environmental impacts."  Section 179(d)(2), 42
       U.S.C. 7509(d)(2)(emphasis added).

    •   Permits for sources in nonattainment areas may only be issued if "an
       analysis  of alternative sites, sizes production processes,  and
       environmental control techniques for such  proposed source demonstrates
       that benefits of the proposed source significantly outweigh the
       environmental and social costs  imposed as a result of its location,
       construction, or modification."  Section 173(a)(5), 42 U.S.C.
       7503(a)(5)(emphasis added).
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       •   Section 112(r)(7) also authorizes the EPA Administrator to consider
           location and response capabilities in establishing requirements to prevent
           accidental releases of hazardous air pollutants.  42 U.S.C. 7412(r)(7).

       •   Requirements for the siting of solid waste incinerators must "minimize,
           on a site specific basis, to the maximum extent practicable, potential risks
           to public health or the environment."  Section 129(a)(3), 42 U.S.C.
           7429(a)(3)(emphasis added).

       •   Penalties for noncompliance with applicable Clean Air Act provisions
           must reflect "such other factors as justice may require,"  including,
           presumably, the potentially greater need for deterrence  in communities
           which have historically lacked the resources to oversee facility
           compliance. See section 113(e)(l), 42 U.S.C. 7413(e)(l)(emphasis
           added).

       •   EPA has broad discretion to impose whatever permit conditions "are
           necessary to assure compliance." Section 504, 42 U.S.C. 7661c.
           Conceivably, permit conditions could include provisions to enhance a
           community's ability to oversee facility compliance.

       •   Finally, state boards with responsibility for permitting and enforcement of
           the Act must have "at least a majority of members who represent the
           public interest."  Section 128, 42 U.S.C. 7428(emphasis added).   The
           "public interest"  standard may allow EPA to require that such boards
           include representatives of environmental justice communities.

5.   Does section 112(k) of the Clean Air Act, 42 U.S.C. 7412(k), require or authorize EPA (and
    delegated permit authorities) to address environmental justice concerns about cumulative
    burdens and  their associated health risks in urban areas?

       Section 112(k) addresses hazardous air pollutants from "area sources" (i.e., stationary
    sources that are not major) that individually or collectively present significant risks to public
    health in urban areas. The section directs EPA to monitor for a broad range of hazardous air
    pollutants, analyze contributing sources, and assess the public health risks they pose.  EPA
    also must develop a comprehensive national emission control strategy, encourage and support
    State and local emission  control strategies, and report to Congress on specific metropolitan
    areas that continue to experience high risks to public health from area source emissions. See
    also section  112(c)(3), 42 U.S.C. 7412(c)(3) and Tr. 1-294-295.

6.   Does the Resource Conservation and Recovery Act ("RCRA") require or authorize EPA (and
    delegated permit authorities) to address such environmental justice concerns as cumulative
    risk, unique exposure pathways, and sensitive populations?  Tr. 1-238. Relevant provisions
    cited in a law review article presented to NEJAC include:

       •   Standards applicable to generators and transporters of hazardous waste as
           well as hazardous waste treatment, storage, and disposal facilities must
           incorporate such protective requirements "as may be necessary to protect
           human health and the environment" language broad enough to
           encompass consideration  of cumulative impacts.  See sections 3002(a),
           3003(a), and 3004(a), 42 U.S.C. 6922(a), 6923(a), and 6924(a)(emphasis
           added).

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           Permits for hazardous waste treatment, storage, or disposal facilities
           "shall contain such terms and conditions as the Administrator (or the
           State) determines necessary to protect human health and the
           environment" Section 3005(c)(3), 42 U.S.C. 6925(c)(3)(emphasis
           added). EPA's own Environmental Appeals Board has read this language
           to allow the Agency to "tak[e] a more refined look" at health and
           environmental impacts which disproportionately affect a low-income or
           minority population.   See In re Chemical Waste Management, Inc., 1995
           WL 395962 (E.P.A June 29, 1995).
       •   Standards applicable to hazardous waste treatment, storage, and disposal
           facilities "shall specify criteria for the acceptable location of new and
           existing treatment, storage, and disposal facilities as necessary to protect
           human health and the environment." Section 3004(o)(7), 42 U.S.C.
           6924(o)(7)(emphasis added).  See also section 3004(a)(4), 42 U.S.C.
           6924(a)(4). Defining an "acceptable location" from a human health
           perspective presumably permits the Agency to account for environmental
           justice concerns regarding risk aggregation.

       •   Enforcement penalties must take into account the "seriousness of the
           violation." Section 3008(a)(3), 42 U.S.C. 6928(a)(3)(emphasis added).
           Violations can be more serious when risks are aggregated,
           disproportionate, or inequitable, or when risks impact an especially
           sensitive community.

       •   Guidelines for state solid waste management  plans must consider "the
           political, economic, organizational, financial, and management problems
           affecting comprehensive solid waste management." Section 4002 (c)(9),
           42 U.S.C. 6942(c)(9) (emphasis added). These factors are sufficiently
           broad to encompass many environmental justice concerns.

7.   Does the Clean Water Act authorize or require EPA (and delegated states) to assess
    cumulative risk? Relevant provisions cited in a law review article presented to NEJAC
    include:

       •   Water quality standards under the Act must protect both public health and
           the "designated use" of each individual waterbody.  Sections 302, 303,
           and 304, 33 U.S.C. 1312, 1313, and 1314. "Designated uses"  could
           include economic or cultural uses (such as subsistence fishing or uses
           reflecting tribal traditions).

       •   The statute requires watershed protection, which, in turn, requires
           gathering loading data and evaluating pre-existing  environmental
           stressors.  See section  303(d), 33 U.S.C. 1313(d), and Tr. 1-237, 243-244.

       •   Until all implementing actions have been taken under the statute, the Act
           gives EPA broad authority to condition discharge permits on "such
           conditions as the Administrator determines are necessary to carry out the
           provisions of this chapter." See section 402(a), 33 U.S.C.
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        1342(a)(emphasis added).  These permit conditions could include
        provisions promoting environmental justice.

    •   Finally, civil and administrative penalties for violations of the Act must
        be based on the seriousness of the violation and "such other matters as
       justice may require."  Section 309(d) and (g), 33 U.S.C.  1319(d) and
        (g)(emphasis added).

Do the Safe Drinking Water Act, Toxic Substances Control Act, and Federal Insecticide,
Fungicide, and Rodenticide Act require or authorize EPA to address environmental justice
concerns in permitting?  Relevant provisions cited in  a law review article presented to
NEJAC include:
       The Safe Drinking Water Act directs EPA to set national primary
       drinking water regulations after considering, among other things, "other
       factors relevantto protection of health." Section 300g-l(b)(7)(C)(l), 42
       U.S.C. 1412 (b)(7)(C)(l)(emphasis added). Cumulative impacts in
       environmental justice communities would seem to be such a relevant
       factor.

       State variances from national primary drinking water regulations for
       public water systems "shall be conditioned on such monitoring and other
       requirements as the Administrator may prescribe," including, presumably,
       enhanced public participation opportunities and resource assistance where
       appropriate in environmental justice communities. See section 300g-
       4(a)(l)(B), 42 U.S.C. 1415(a)(l)(B)(emphasis added).

       Civil penalties for violations of the Safe Drinking Water Act shall
       consider "the seriousness of the violation" and "such other matters as
       justice may require."  Section 300h-2(c)(4)(B), 42 U.S.C. 1423
       (c)(4)(B)(emphasis added).

       The Toxic Substances Control Act directs EPA to consider "cumulative or
       synergistic effects" in setting testing requirements for chemical substances
       and mixtures ~ precisely the effects environmental justice advocates
       contend have been too often overlooked in considering the risks posed by
       toxic substances in low-income and minority communities.  See section
       4(b)(2)(A), 15 U.S.C. 2603(b)(2)(A).

        The Toxic Substances Control Act further directs EPA to consider the
       "environmental, economic, and social impact of any action" taken under
       the Act.  Section 2(c), 15 U.S.C. 2601(c)(emphasis added).

       Finally, the Toxic Substances Control Act targets "low-incomepersons"
       for technical and grant assistance in State radon programs.  Sections
       305(a)(6)  and 306(i)(2), 15 U.S.C. 2665(a)(6) and 2666(i)(2).

       The Federal Insecticide, Fungicide, and Rodenticide Act gives EPA broad
       authority to prevent "unreasonable adverse effects" on the environment,
       including effects on farmworkers. See section 3(a), 7 U.S.C. 136a(a).
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         9.    Finally, to what extent must states, tribes, and local governments administering
               delegated programs adhere to the same restrictions and, to the extent that they
               must, should these requirements be embodied in rulemaking?  This question of
               rulemaking is important, not only to bind states, tribes, and local governments,
               but also to protect them from suits alleging that they are "arbitrary and
               capricious" when they deny a permit on environmental justice grounds. Tr. 1-204-
               208.

B.  Substantive permit criteria.

Background:

        EPA's 1997 Strategic Plan commits the Agency to ensure that "all Americans are protected from
significant risk to human health and the environment where they live, learn, and work." The same
Strategic Plan binds the Agency to enforce all federal laws protecting human health and the environment
"fairly and  effectively." Finally, the Plan guarantees that all segments of society have access to
information sufficient to participate effectively in managing health and environmental risk."  Tr. 1-16-17.

        Despite these assurances, NEJAC heard repeated and compelling testimony from a multiplicity of
low-income and minority communities that
polluting sources are being located in sufficient proximity to residential areas and/or to each other to form
cancer alleys, cancer hotspots, or other health risks.  As Professor Lazarus explained, "Risks that may
seem acceptable in isolation may properly be seen as presenting unacceptably high risks when the
broader social context, including associated health and environmental risks, is accounted for in total
aggregation." Tr. 1-45.

        Where such conditions exist, permit writers remain confused as to whether they can address such
risks, how to address them (assuming they have legal authority to do so),  and even which of many
different types of aggregate risks to consider.

Recommendation:

    The EPA Administrator should direct permit writers to issue only permits  consistent with EPA's
mission; namely, protecting the health of all citizens. Specifically, permit writers should ensure that any
permit: a) complies with all applicable provisions of law, including state and local health, environmental,
and zoning laws (where such laws are not preempted), and b) adequately  protects health and the
environment.  Specific factors which academicians and community groups believe the Agency should
consider in determining the bases for modifying or denying permits in low-income or minority
communities include:

        (1) negative health risks;
        (2) racially disproportionate burdens;
        (3) cumulative and synergistic adverse impacts on human health and the environment;
        (4) high aggregation of risk from multiple sources;
        (5) community vulnerability based on the number of children, elderly, or asthmatics;
        (6) cultural practices, including Tribal  and indigenous cultures and cultural reliance on land and
           water that may become pathways of toxic exposure;
        (7) proximity to  residential areas and adequacy of buffer zones;
        (8) health and ecological risk assessment;
        (9) the economic burden of medical costs and lost productivity;
        (10) access to health care;
        (11) psychological impacts;

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        (12) the risk of chemical accidents;
        (13) emergency preparedness;
        (14) community right-to-know in permitting;
        (15) the impact on the quality of life in the surrounding community;  and
        (16) an applicant's compliance history. Tr. 1-45-46, 195, 225-227, 234-237, 240-246, 250-251,
           268, 271-272, 281-282, 293-296, 301, 318,111-20-23, 50-59, 77-85, R. 10-11, 13-14.

        Business and state stakeholders  emphasized that, if EPA decides to incorporate such factors in the
permitting process, it must do so through rulemaking in order to ensure that the terms are clearly
understood and uniformly employed.  Tr. 1-206-208, 218-219, R. 11, 18, and 20-21. Community groups
and some academicians, by  contrast, stress that EPA could use existing regulatory authority more
creatively to accomplish this end.  Tr. 1-46-51, 169-173, 181, 187, 237, and 247-249. At least one
business representative also suggested that, if EPA incorporates such factors in permitting, it screen
permits to determine which  merit fuller  scrutiny because of the size of the source, toxicity of the
emissions, or degree of public interest in the outcome. R. 12.

         (Additional recommendations on appropriate substantive permit standards and siting criteria are
contained in Section III below.)

C.  Community involvement/public participatioa

Background:

        Non-Agency stakeholders agree that one of the most serious ~ and easily remedied flaws ~ in
current permitting is the way environmental agencies fail to engage the public in permit decision-making.
Tr. Ill-13, 22, R. 14-16. The issue is a key one because inadequate public comment processes generate
community mistrust, delay or disrupt industry plans, and impair agency  decision-making.  Indeed, EPA
Administrator Carol M. Browner stressed to NEJAC that when permit agencies succeed in engaging a
local community in a meaningful manner, the quality of the Agency's environmental decision-making is
dramatically improved. Tr.  1-106. Stakeholders generated a wealth of suggestions for improving the
public participation process, most of which centered on the concept that consultation with potentially
affected communities should occur "early and often."

Recommendation:

        The EPA Administrator should  adopt binding public participation requirements which ensure that
permit writers will consult with affected communities "early and often." Tr. 1-87-88, 91-99, 129-130,
198-199, R. 14-16, 19-20. Specifically, these requirements should direct permit agencies to:

        a.  Contact potentially affected communities as soon as an agency is aware that a
           permit application may be filed or that emissions from a facility may increase, but
           in no event later than immediately upon receipt of the permit application or notice
           that emissions could increase. Tr.  1-91-92, 129-130, 132-133, 198-199, R. 19.

        b.  Hold an initial hearing or informal meeting with the potentially affected
           communities  immediately after receipt of a permit application.  This will afford an
           early opportunity to apprise the community of the pendency of the application,
           identify community concerns, avoid the mistrust created by  prolonged agency and
           industry negotiations outside the public  eye, and establish a basis for an ongoing,
           credible dialogue. R. 14-16, 19-22.
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       c.  Identify community leaders accurately; do not rely on local government to
           represent environmental justice communities, because many low-income and/or
           minority communities do not have local visibility or political influence. Tr. 1-129-
           130.

       d.  Develop a plan for community involvement in conjunction with the community.
           Tr. 1-91-92.

       e.  Require a community outreach plan modelled on those used with success in the
           brownfields grants program; follow up to ensure that the plan is implemented. Tr.
           1-131-132, R. 12.

       f.  Use broadcast media and other effective forms of communication to advertise the
           public participation process.  Tr. 1-94-95, R. 19.

       g.  Require permit notices in newspapers to be printed in legible print and to be
           placed in spots likely to attract the attention of affected residents. Tr. 1-82-83,
           355. (Community stakeholders persistently criticized notices which are printed:
           solely in the Federal Register or state equivalent, in publications not read by the
           community, or in obscure legal notices and other fine print. R. 14.)

       h.  In public notices of proposed permits, describe what the discharge/emission
           means to the community in lay, rather than technical, terms.  Otherwise, comment
           periods end before communities learn about potential impacts.  Tr. 1-87-88, 101-
           103, 132-133,111-20, R. 14.

       i.   Utilize local government resources as well by bringing local government into the
           process as early as possible. Tr. 1-95-97, 187-189.

       j.   Make technical reports accessible to the community as soon as they are available,
           rather than holding them internally until commencement of a 30-day comment
           period.  Community stakeholders criticized the 30-day comment  period as an
           inadequate time in which to obtain independent technical advice on the
           complicated issues involved in permitting.  (Presumably, this recommendation
           would require agencies to establish a  publicly accessible permit docket.) Tr.  I-
           132-133, R. 14.

       k.  Extend the 30-day public comment period for complicated permits. Tr. 1-132-
           135.

    (Additional recommendations on community involvement are outlined in Section III below.)

D.  Enforcement.

       Stakeholders recognized an integral relationship between permitting and enforcement. As several
stakeholders repeatedly emphasized, permit writers need to think about how enforceable their permits will
be, while enforcers need to rely on the permits to ground their prosecutions.  Tr. 1-359,111-25-26, 62-63.
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Recommendation:
        The EPA Administrator should ensure that environmental justice guidance and requirements are
effectively enforced in federally adopted, approved, or required environmental programs.  Specifically,
the Administrator should:

    1.   Ensure that EPA guidance on environmental justice reaches beyond the headquarters
        level to each of the regional offices and, in particular, regional permit writers.  Tr. I-
        155-160, 277.

    2.   Ensure that EPA guidance on environmental justice reaches beyond to state personnel,
        especially permit writers, administering federally approved or required programs. Tr.
        1-160.

    3.   Assess all delegated state permit programs for compliance with federal legal
        requirements and withdraw federal program delegation in states which fail to
        implement the requirements. Tr. 1-84, 102.

    4.   Address unpermitted or underpermitted activity, since this is a major problem. Tr. I-
        144,111-62-63.

    5.   Be more assertive in exercising regulatory authority to reopen permits for
        grandfathered facilities, many of which would not have been approved under modern
        standards.  Tr. 1-169-170.

    6.   Use enforcement programs to capture the economic benefits of permit violations so
        that corporations cannot profit from pollution. (See the NEJAC Enforcement
        Subcommittee's resolution and report on "Credible Deterrence," which can be found
        in Appendix B  on the EPA Web Site).  Tr. III-164-165.

    (Additional recommendations concerning enforcement are outlined in Section III of this report.)

E.   Land use/zoning.

Background:

        The relationship of land use and zoning to environmental justice was highlighted by the
presentation of Professor Yale Rabin from the Massachusetts Institute of Technology.  Professor Rabin
reported observations gleaned from thirty-five (35) years of scrutinizing disparities in delivery of
municipal services to low income and minority communities in at least sixty (60) locations throughout the
United States.  He noted that many pre-existing environmental injustices in minority and low-income
communities can be traced to racially discriminatory local government actions ~ actions taken in
compliance with local zoning ordinances and compounded by other government policies.

        For example, racially discriminatory real estate covenants were widely used before the adoption
of comprehensive zoning.  These covenants restricted minorities to certain geographic locations, which
were then the host sites for polluted or undesirable land uses. The rigidly controlled boundaries of these
neighborhoods caused severe overcrowding.  Later, comprehensive zoning (mainly but not exclusively in
the south) designated existing black residential areas as the site for further industrial or commercial
growth. Because these  residentially incompatible but permitted uses resulted in the frequent displacement
of black residents, Dr. Rabin dubbed this phenomenon "expulsive zoning."  In other words,

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comprehensive zoning had an opposite result in white and black neighborhoods. In white neighborhoods,
zoning prevented intrusive traffic, noise, and pollution; in black neighborhoods, zoning induced such
nuisances.  These origins, though not widely understood, are important to note to the extent that current
policy-makers are tempted to rely on local zoning to alleviate environmental injustice.

        Compounding the zoning impact, municipalities frequently permitted substandard construction in
minority neighborhoods ~ in violation of town building code requirements governing adequate living
space, lot size, ventilation, electricity, water supply, and sanitation.  In addition, local governments, again
especially in the south, often failed to provide municipal services such as paved streets, streetlights, storm
and sanitary sewers, fire hydrants, and adequate water supply to black neighborhoods.  Thus, although the
racially discriminatory local government actions that generated these conditions have long since been
mainly discontinued, the consequences remain in probably thousands of black neighborhoods.  Tr.  1-165-
169, 185-186.

        Research presented by Paula Forbis on behalf of the Environmental Health Coalition echoed
Professor Rabin's findings.  The Environmental Health Coalition studied historical local land use
decisions in the communities of Barrio Logan, Logan Heights, Sherman Heights, and National City,
California, finding that racially discriminatory past land use decisions have current and immediate health
impacts. Tr. 1-174-181.

        More recently, in some (usually larger) cities, Professor Rabin observed that some inequitable
conditions (such as substandard housing) have been improved, but only when a court ordered a town to
equalize its facilities or blacks became the majority and assumed governance. In either case,
improvements occurred only when outside funding was available. By analogy, Professor Rabin
concluded that pre-existing conditions adversely impacting health and the environment in low- income
and minority communities will only be corrected when substantial outside funding becomes available to
these communities. Tr. 1-165-169, 185-186.

        In addition to highlighting funding issues, stakeholders also focussed on other aspects of EPA's
leadership responsibilities. While stakeholders recognized that EPA cannot intrude on local land use
decisions, they shared a sense that EPA has  not fully explored  its opportunities both to address
environmental injustices caused by past local land use/zoning decisions and to assist localities in avoiding
future injustices.

Recommendation:

        The EPA Administrator should exert leadership and become a full partner with local government
in eliminating environmental injustice.  Specifically, the Administrator should:

    1.   (In conjunction with other federal agencies) establish a fund to remedy pre-existing
        environmental injustices in hard-hit low income and minority communities. Tr. 1-164-
        169, 185-186, R 11.

    2.   Consider the discriminatory impact  of historical land use patterns in deciding whether
        to use whatever discretionary authority EPA may have to remedy environmental
        injustices through the state and federal permit process. Tr. 1-225-266,111-64.

    3.   Provide land use guidance for local  governments regarding the environmental justice
        considerations involved in permitting and siting of facilities. Tr. 1-184-189,  196, III-
        47-48.
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    4.   Insist that federally mandated permits to respect local zoning ordinances which protect
        communities against increases in pollution.  (Citizens allege that one such model
        ordinance in Chester, Pennsylvania was given no weight in the permit process.)  Tr. I-
        74-80.

    (Additional recommendations concerning land use/zoning as well as funding are outlined in Section
III of this report.)

III. ADDITIONAL POLICY RECOMMENDATIONS.

        This section lists all policy recommendations which emerged from the NEJAC meeting
(including, for comparison purposes, those identified in Section II). The recommendations cover a wide
range of issues, including, in addition to the themes  already discussed above, siting criteria, data-
gathering for permits, funding, concentrated animal  feeding operations, urban air pollution,
streamlining/trading/offsets and other alternative compliance schemes, and private sector initiatives.

        While many of the general recommendations pertain to tribes among other stakeholders, six
recommendations exclusively address the issue of environmental justice for tribal and indigenous peoples.
These recommendations are necessary because Indian reservations present unique challenges for applying
the principles of environmental justice. As defined by EPA, environmental justice means "The fair
treatment and meaningful involvement of all people, regardless of race, color, national origin, or income
with respect to the development, implementation, and enforcement of environmental laws,  regulations,
and policies."  The "fair treatment" component of the term means that "no group of people, including
racial, ethnic, or socioeconomic group should bear a disproportionate share of the negative environmental
consequences resulting from industrial, municipal and commercial operations or the execution of federal,
state, local, and tribal programs and policies." [U.S. EPA, Interim Final Guidance for Incorporating
Environmental Justice Concerns in EPA's NEPA Compliance Analyses (1997).] This definition includes
Indian tribes in two  ways.  First, tribes are minority groups that can be disadvantaged in socioeconomic
terms, and thus tribes are one of the kinds  of groups that environmental justice seeks to protect from
disproportionate impacts. Second, tribes are also sovereign governments, with the power and
responsibility to carry out environmental protection  programs.  Thus, the challenges of environmental
justice for Indian tribes, as outlined by tribal representatives, are two-fold.

        First, the communities on Indian reservations tend to fit the definition of environmental justice
communities. They are comprised of minority populations and tend to be socially and economically
disadvantaged.  Indian tribes are diverse, and generalizations should be taken with caution. Many
reservation communities have suffered disproportionate impacts to their environments, some of which are
the long-term impacts of "development" activities that occurred years or decades ago.  Other reservation
communities face the prospect of environmental  degradation that would result from proposals intended to
create jobs and generally improve socioeconomic conditions.  Given the rural nature and broad
geographic area of many reservations, just to carry the message of environmental justice to the people of
reservations is a particular challenge.  Communities tend to be far-flung, and the task of outreach when
considering a particular environmental permitting issue is difficult at best. Because reservations were
established as homelands where tribes could continue to live as separate,  self-governing communities,
tribal representatives stress that Indian people tend to see themselves as different from other minorities.
To the extent that reservation Indians are even aware of the concepts of environmental justice, they may
perceive it as something designed to serve the interests of minority groups other than reservation Indians.
Many reservations have substantial populations of non-Indians as well as Indians who are members of
other tribes. On some reservations, such groups could be considered minorities; on other reservations, the
presence of such groups has rendered tribal members minorities within their own homelands.
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        Second, tribal governments are developing their own environmental programs.  Federal
environmental laws authorize tribes to operate regulatory programs similar to those administered by the
states.  The tribal provisions in the federal laws were not enacted, however, until a decade or two after the
laws authorizing state programs.  The neglect of Indian reservations by Congress in the first generation of
federal environmental laws has resulted in less environmental protection infrastructure in Indian country,
which can itself be seen as an environmental justice issue. In recent years, many tribes have chosen to
establish regulatory programs like those of the states, but they face enormous challenges, in part because
tribes generally do not have nonfederal sources of revenue for governmental operations comparable to the
states.  Tribes also must cope with a confusing body of Supreme Court decisions that opponents of tribal
sovereignty can use to challenge tribal programs,  and tribes must be prepared to defend against such
challenges. Thus, tribes as  governments may see environmental justice as another obstacle to the
development of effective environmental protection programs. Nevertheless, tribal representatives
emphasize that tribes as governments need to understand (1) the legal underpinnings  of the principles of
environmental justice, and (2) when tribal governments need to apply these principles. Such knowledge,
they stress, will take time to develop, and tribes therefore need special consideration  from EPA on the
underlying issues before being expected to apply  the principles  of environmental justice as governmental
entities.  Similarly, much work is still needed on the part of EPA to educate its own staff on the principles
of tribal sovereignty and federal Indian law, as well as  on the importance of the environment for tribal
cultures and philosophies. EPA should therefore  proceed with some deliberation and should make extra
efforts to ensure that tribes are well informed on the basic environmental laws and environmental justice
principles prior to entering into discussions about permits in Indian country.

        Unless  otherwise indicated, each of the following eighty (80) recommendations is addressed to
EPA.

Refraining or expanding the nature of the inquiry:

    1.   Reword EPA's inquiry as follows:

         In order to secure protection from environmental degradation for all citizens,
         what factors should be determinative when a federal permitting authority (or
         state or local agency with delegated permitting responsibilities) makes a
         decision regarding a new pollution-generating facility proposing to operate in a
         minority and/or low-income community that  already has  a number of such
         facilities?  Tr. 1-235.

    2.   Reconvene the Interagency Task Force on Environmental Justice because
        environmental permitting involves a broader range of agencies than EPA (e.g., the
        Department of Defense, Department of Energy, Army Corps of Engineers, Bureau
        of Indian Affairs).  Tr. 1-297-327, III-223-225.

    3.   Address permits issued by state, regional, and local agencies as well as those
        required under federal law.  Tr. 1-64-65.

    4.   Ensure broader representation of environmental justice  populations and community
        organizations on federal advisory committees, especially those developing
        guidelines to be applied in permits. Tr. 1-214.

    5.   Ensure that each relevant regulatory and permitting office,  at EPA  and in other
        federal  agencies, has a diverse work force. Tr.  1-214-216.
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Legalfactors

    6.   Find legal authority to address the potential effects of long-term exposure to
        multiple low-level toxins in permits issued in environmental justice communities in
        Principle 15 of the Rio Declaration on the Environment and Development. Tr. 1-239-
        240 (and attached prepared statement).

    7.   Find legal authority to address environmental justice concerns in permitting in the
        International Convention on the Elimination of All Forms of Racial Discrimination,
        ratified by the United States in  1994 and made applicable to executive agencies,
        including EPA, by Executive Order 13107. Tr. 1-239-240 (and attached prepared
        statement).

    8.   Find legal authority to address environmental justice concerns in permitting in the
        National Environmental Policy  Act (NEPA). Tr. 1-170-171.

    9.   In the alternative, since NEPA provides the best mechanism for ensuring wide-
        ranging consideration of needs, impacts, and alternatives, voluntarily subject more
        EPA permits to the NEPA process, utilizing the CEQ guidelines for cumulative
        impact  review in the environmental justice context. Tr. 1-170-171.

    10.  Find legal authority to address environmental justice concerns in permitting in the
        general provisions of the Clean Air Act. Tr. 1-46-59, 237-240 (and attachments).

    11.  Find legal authority to address environmental justice concerns about cumulative
        burdens and their associated health risks in permits issued in urban areas in section
        112(k) of the Clean Air Act, 42 U.S.C. 7412(k). Tr. 1-293-296.

    12.  Find legal authority to address environmental justice concerns in permits issued
        under the Clean Water Act. Tr. 1-46-59, 237-240 (and  attachments).

    13.  Find legal authority to address environmental justice concerns in permits issued
        under the Resource Conservation and Recovery Act. Tr. 1-46-59, 237-240 (and
        attachments).

    14.  Find legal authority to address environmental justice concerns in permits issued
        under the Safe Drinking Water, Toxic Substances Control, and Federal Insecticide,
        Fungicide, and Rodenticide Acts. Tr. 1-46-59, 237-240 (and attachments).

    15.  Finally, make environmental justice criteria applicable to permitting through
        rulemaking so as to bind states  and also protect them from suits alleging that they
        are arbitrary and capricious when they deny a permit on environmental justice
        grounds.  Tr. 1-204-208, 285-287.

Substantive permit criteria:

    16.  Address the following factors as bases for denying permits: (1) negative health risks;
        (2) racially disproportionate burdens; (3) cumulative and synergistic adverse impacts
        on human health and the environment; (4) high aggregation of risk from multiple
        sources; (5) community vulnerability based on the number of children, elderly, or
        asthmatics; (6) cultural practices, including Tribal and indigenous cultures and
        cultural reliance on land and water that may become pathways of toxic exposure;
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      and (7) proximity to residential areas and adequacy of buffer zones. Tr. 1-45-46, 74-
      80, 195, 225-227, 234-237, 240-246, 250-251, 268, 271-272, 281-282, 293-296,
      301, 318,111-20-23, 77-83, R. 13, 20.

  17. Explore using both a substantive alternatives analysis and a rigid sequencing
      approach for permitting in highly impacted communities.  Begin with an alternatives
      analysis.  Deny a permit if there is a practicable alternative to siting the facility in or
      near an impacted community and use regulatory incentives to facilitate permitting at
      the alternative site (e.g., expedited permitting, emission trades, alternative
      compliance requirements such as emission caps and budgets, etc.).  If a facility must
      be sited in a highly impacted community, strive to avoid adverse impacts; then
      minimize adverse impacts that cannot be avoided (e.g., through  specialized control
      technology,  alternative production processes, site-specific land management
      practices, buffer zones, alternative traffic routes, etc.); finally, provide compensatory
      mitigation (such as reducing emissions from other sources in the area) for the
      remaining risks. Similar approaches can be found in the Clean Water Act section
      404 permit program,  the Endangered Species incidental takings permit program, and
      transferable  development rights used to protect historic buildings.   Tr. 1-228-229
      and attachment.2

  18. In addition to cumulative exposure, consider: (1) health and ecological risk
      assessments; (2) the economic burden of medical costs and lost productivity; (3)
      access to health care; (4) psychological impacts; (5) the risk of chemical accidents;
      (6) emergency preparedness; (7) community right-to-know in  permitting; and (7) an
      applicant's compliance history in issuing permits in low-income and minority
      communities. Tr. 1-224-227,111-50-59, 84-85.

  19. Recognize that a community's environmental concerns may be considerably broader
      than the media-specific technical criteria used by federal and state permit agencies.
      Indeed, community concerns encompass such quality-of-life issues as: (1) noise; (2)
      dust; (3) constant truck traffic; (4) roadway congestion; (5) blocked roadway access
      due to truck parking violations; (6) debris falling from trash trucks; (7) safety issues
      raised by trucks speeding through residential areas; (8) rats; (9) odors; (10) house
      vibrations; (11) sleep deprivation due to all-night traffic; (12)  deteriorated property
      values; and (13) general neighborhood decline. EPA should clarify that federally
      required permits need to consider such affronts, because states administering
      delegated permit programs have told adjacent communities that  permit writers lack
      jurisdiction over such problems. Tr. 1-68-72, 224-227, 360-361.

  20. Use health-based statistics to identify geographic areas that need to be treated more
      cautiously for permitting purposes; work in and around Philadelphia provides a
      model for such an approach.  Tr. 111-38-39, 53-54, 84.

  21. Consider the level of franchise (i.e., access to, and ability to influence, government)
      of different communities in permitting and establish more preventative approaches
      where necessary to protect the integrity of the permit process.  Tr.  111-58-59. (This
      recommendation stems from the fact that low-income and minority communities
      historically have lacked the resources necessary to monitor polluting facilities in
      their communities and, if violations are found, either to persuade government
A letter dated April 18, 2000 from Eileen Gauna to NEJAC outlines this approach in more detail.
                                                                                               24

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        officials to take enforcement action or to bring their own citizen enforcement
        actions.)  Tr. 1-45-46.

    22.  Require federally mandated permits to respect local zoning ordinances which protect
        communities against increases in pollution; citizens allege that one such model
        ordinance in Chester, Pennsylvania was given no weight in the permit process. Tr.
        1-74-80.

    23.  Consider the discriminatory impact of historical land use patterns in deciding
        whether to use whatever discretionary authority EPA may have to remedy
        environmental injustices through the state and federal permit process. Tr. 1-225-266,
        111-64.

    24.  Require an allocation mechanism that addresses future projects so that the first
        permit applicant does not absorb all of a neighborhood's potential for growth (e.g.,
        traffic capacity or clean air increment). Tr.  1-226, R 11.

    25.  Take cognizance of whether permit applicants propose to displace older, more
        polluting facilities. Tr. 1-169-170.

    26.  Expedite the permit process for facilities that have been invited into communities
        and enjoy widespread community support since speed and predictability offer
        important market advantages to permit applicants.  Tr. 1-171-174, R. 12.

    27.  Focus more attention on pollution prevention activities, both as a condition of
        permits and as a way to avoid toxic releases altogether.  Tr. 1-195-196.

Siting criteria and land use:

    28.  Adhere to the recommendations of NEJAC's  Waste and Facility Siting
        Subcommittee as currently being detailed in a draft brochure entitled "Social
        Aspects of Siting RCRA Hazardous Waste  Facilities." Tr. 1-210-211,111-46-47.

    29.   Adhere to the recommendations of NEJAC's Waste and Facility Siting
        Subcommittee as detailed in their report and related resolution on waste transfer
        stations.3 The report outlines the need for best management practice manuals for
        both facility siting and operations.  In addition, the report calls for siting criteria, a
        planning process to assure a more equitable distribution of facilities, design and
        operating practice requirements, potential emission reduction requirements,
        increased community participation, and enhanced enforcement, among other
        measures. The report reflects a two (2)-year study of transfer stations demonstrating
        that, absent a federal baseline, there is enormous variability in the operating
        practices of waste transfer stations and strong community dissatisfaction,
        particularly where facilities were clustered as  they are in New York City and
        Washington, D.C.  Tr. III-143-152. (A copy of the Subcommittee's report and
        resolution can be found in the NEJAC Executive Summary Report on the EPA Web
        Site as Appendix B. For additional discussion of the problems associated with waste
        transfer stations, see Tr.  1-33-34, 189-190.)
3 Waste transfer stations are facilities where municipal waste is unloaded from collection vehicles and subsequently
re-loaded onto larger transport vehicles to be taken to a disposal site. Waste transfer stations allow communities to
move waste economically over long distances.
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    30.   Provide land use guidance for local governments regarding the environmental
       justice considerations involved in permitting and siting of facilities.  Tr. 1-184-189,
        196,111-47-48, R. 12.

Public participation and community involvement:

    31.   Direct the Inspector General to conduct a full audit of the State of Louisiana
        permitting programs with particular attention to violations of EPA public
        participation regulations, NEJAC's public participation guidelines, and the U.S.
        Constitution. Tr. 1-284, 344-358, 360-362, III-189-198. (A copy of the Resolution
        adopted by NEJAC can be found in the NEJAC Executive Summary Report on the
        EPA Web Site as Appendix B.) See also Tr. 1-82.

    32.   (From the Council on Environmental Quality), convene community-level
        interagency meetings modelled on successful meetings in Los Angeles and New
        York City. The meetings would serve to apply principles of environmental justice at
        the community level, generate a mutually agreed upon agenda, and spotlight local
        environmental justice problems.  Participants should include community leaders,
        government officials, and Congressional representatives.  The meeting should
        endeavor to produce a series of commitments to the local community.  Tr. 1-29-37.
        (While the agenda at such a meeting probably would range well beyond permitting,
        the meeting could provide a forum to resolve permit issues, among other community
        concerns.)

    33.   Adopt binding public participation requirements which ensure permit writers will
        consult with affected communities  "early and often."  Tr. 1-87-88, 91-99, 129-130,
        198-199, R. 14-16,  19-20.  Specifically:
           a.  Contact potentially affected communities as soon as an agency is aware that
               a permit application may be filed or that emissions from a facility may
               increase, but in no event later than immediately upon receipt of the permit
               application or notice that emissions could increase. Tr. 1-91-92,  129-130,
               132-133, 198-199, 272, 279, R. 19.
           b.  Hold an initial hearing or informal meeting with the potentially affected
               communities immediately upon receipt of a permit application. R. 14-16,
               19-22.
           c.  Accurately identify community leaders; do not rely on local government to
               represent low-income or minority communities. Tr. 1-129-130.
           d.  Develop a plan for community involvement in conjunction with the
               community. Tr. 1-91-92.
           e.  Require a community outreach plan modelled on those used with success in
               the brownfields grants program; follow up to ensure that the plan is
               implemented.  Tr. 1-131-132, R.  12.
           f  Use broadcast  media and other effective forms of communication to
               advertise the public participation process. Tr. 1-94-95, R.  19.
           g.  Require permit notices in newspapers to be printed in legible print and to be
               placed in spots likely to attract the attention of potentially affected residents.
               Tr. 1-82-83, 355, R. 14.
           h.  In public notices of proposed permits, describe what the discharge/emission
               means to the community in lay, rather than technical, terms. Otherwise,
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           comment periods end before communities learn about potential impacts.  Tr.
           1-87-88,  101-103, 132-133,111-20, R. 14.
       i.   Utilize local government resources as well by bringing local government
           into the process as early as possible. Tr. 1-95-97, 187-189.
       j.   Make technical reports accessible to the community as soon as they are
           available, rather than holding them internally until commencement of a 30-
           day comment period.  The 30-day comment period is often an inadequate
           time in which to obtain independent technical advice on the complicated
           issues involved in permitting. (Presumably, this recommendation would
           require agencies to establish a publicly  accessible permit docket.) Tr. 1-132-
           133, 274-275, R.  14.
       k.  Extend the 30-day public comment period for complicated permits.  Tr. I-
           132-135.

34.  Adopt permit conditions which provide communities with adequate test data and
    sufficient control over ongoing monitoring to ensure the safe operation of a facility.
    Tr. 1-45-46, 202. In pre-meeting interviews, stakeholders identified a variety of
    obvious, as well as innovative, ways to  accomplish this objective, including:
       a.  bucket brigades in which citizens learn  how to collect and send samples to
           EPA-approved labs (used as the basis for at least one successful
           enforcement action in Region IX),
       b.  requiring companies with continuous emission monitoring to have digital
           printouts on stacks reporting their emission limits,
       c.  Community Advisory Committees,
       d.  monitoring and enforcement by other governmental entities (e.g., tribes and
           local governments),
       e.  use of qualified consultants,
       f  community-facility good neighbor agreements, and
       g.  daily posting of compliance data on the web.  R. 22-23.

35.  Assess, for the purposes of developing benchmarks, whether required public
    participation programs associated with permitting are working effectively because
    there is considerable testimony to the effect that such efforts are extremely
    problematic. Tr. III-132-133.

36.  Make qualified, independent experts available to the local community to review
    permit technicalities. Tr. 1-101.

37.  Require permit applicants to certify under penalty of perjury that the information
    they provide to the public is complete and accurate.  Tr. 1-133-134.

38.  Provide training for citizens and tribal governments on the permitting process itself.
    Tr. 1-101, 210-211, 365-366,111-20-21.

39.  Develop a citizens' guide to grandfathered facilities to facilitate citizen monitoring
    and involvement in permit reissuance for these facilities.  Tr. III-l 15-116.

40.  Identify existing legal authority to address cumulative impacts in permitting; make a
    list of these authorities available to  environmental justice communities. Tr. III-l 16.
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    41. Require permit applicants to make geographic information system ("GIS"),
       demographic, and other computerized data (including the computers to review the
       data) available to local communities. Tr. 1-191-194.

    42. Address, through permits, communication networks extending from the community
       to the upper echelons of EPA in the event of chemical accidents or explosions.  Tr.
       111-59-60.

Data gathering for permits:

    43. (To EPA and other agencies), recognize the  excellent health effects research now
       being done by community organizations and support further community-driven (i.e.,
       community controlled) health effects research to ensure better permitting decisions.
       Tr. 111-55-56.

    44. (To ATSDR), incorporate more communities of color in research, such as the recent
       report on the economic burden of medical costs and lost productivity, since such
       information is relevant to permitting.  Tr. 111-84-85.

Funding:

    45. (To EPA, in  conjunction with other federal agencies), establish a fund to remedy
       pre-existing environmental injustices in hard-hit low income and minority
       communities. Such a fund is an essential precondition to improved permitting.  Tr. I-
       164-169, 185-186, R. 11.

    46. (To EPA as well as to the National Institute  for Environmental Health Sciences,
       Agency for Toxic Substance Disease Registry, the National Institutes of Health,
       Center for Disease Control, and other agencies with health responsibilities), fund
       research on cumulative exposure analysis analogous to the research conducted by
       Communities for a Better Environment along the Aladema Corridor in Los Angeles.
       There, researchers used GIS mapping systems, demographic data, the Toxic Release
       Inventory database, other facility siting information, and a physical inventory
       conducted by community members to publish a report on cumulative exposure
       entitled "Holding Our Breath." Noteworthy  findings  included the fact that 70% of
       area facilities were not reporting to environmental agencies and, hence, were not
       identified in agency databases. In addition,  an industrial chrome plating facility had
       been permitted  immediately adjacent to an elementary school.  Such research can be
       an essential tool for community empowerment, enabling communities to identify
       appropriate permit terms and conditions or circumstances in which permitting
       should not go forward. (The Los Angeles research was funded by the National
       Institute of Environmental Health Sciences,  UCLA School of Public Health, Center
       for Occupational Environmental Health, Labor Occupation Safety and Health
       Divisions, and the USC Southern California Environmental Health Science Center.)
       Tr. 1-60-65.

    47. Attach environmental health funds to permits, with special emphasis on
       communities of color, children, women, and elders. Tr. 1-203,111-59.

    48. Provide funds for universities to provide independent technical advice on permitting
       issues to affected communities.  Tr. 1-134, 215-216.
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    49. Make funding available to states to engage in activities related to improved
       permitting in environmental justice communities, including site and community
       data-gathering and evaluation, expanded public participation, and community
       training. Tr. 1-207.

    50. Make funding available to encourage youth in low-income and minority
       communities to pursue environmental careers so that permit agencies can employ a
       diverse workforce. Tr. 1-214-216.

    51. Recognize the special funding needs of tribes to develop regulatory and permitting
       infrastructure. Tr. 1-241-245.

Enforcement of permits and related regulatory requirements:

    52. Ensure that EPA guidance on environmental justice reaches beyond the headquarters
       level to each of the regional offices and, in particular, regional permit writers.  Tr. I-
       155-160, 277.

    53. Ensure that EPA guidance on environmental justice reaches beyond to state
       personnel, especially permit writers, administering federally approved  or required
       programs. Tr. 1-160.

    54. Assess all delegated state permit programs for compliance with federal legal
       requirements and withdraw federal program delegation in states which fail to
       implement the requirements.  Tr. 1-84,  102.

    55. Address unpermitted or underpermitted activity, since this is a major problem.  (For
       example, NEJAC heard testimony that a facility in Arizona is  being allowed to
       operate even though EPA Region  IX believes that the facility  does not have an
       effective permit.) Tr.  I- 144,111-62-63.

    56. (To EPA and States), use enforcement programs to capture the economic benefits of
       permit violations so that corporations cannot profit from pollution.  (See the NEJAC
       Enforcement Subcommittee's resolution and report on "Credible Deterrence," can be
       found in the NEJAC Executive Summary Report on the EPA Web Site as Appendix
       B.) Tr. III-164-165.

    57. Be more assertive in exercising regulatory authority to reopen permits for
       grandfathered facilities, many of which would not have been approved under
       modern standards. One stakeholder asserted that, under modern "takings" case law,
       old polluting facilities can be shut down where there is  a documented technical basis
       that they are causing an adverse impact. Tr. 1-169-170.

    58. Explore an initiative to clean up 1,712 high priority RCRA facilities. Tr. 111-47.

    59. Conduct a pilot test of enforcement options against waste transfer stations in New
       York City. Tr. III-152-153.

    60. Adhere to the NEJAC Enforcement Subcommittee's resolution recommending that
       EPA refrain from recognizing state and local authority to grant variances from
       federally mandated air pollution permit requirements in cases  of alleged
       malfunction, start-up,  shut down, and maintenance. The Subcommittee cautioned
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       that, in practice, state and local variances receive little scrutiny, reflect highly
       subjective standards, and are relatively easy to obtain. Federal recognition of these
       variances would preclude both federal and community enforcement suits, potentially
       increasing emissions in low-income and minority communities which
       disproportionately host polluting facilities. Instead, the Subcommittee
       recommended that EPA exercise case-by-case prosecutorial discretion to determine
       whether or not Clean Air Act violations  due to alleged malfunction, start-up, shut
       down, or maintenance merit enforcement.  (A copy of the Subcommittee's resolution
       can be found in the NEJAC Executive Summary Report on the EPA Web Site as
       Appendix B.) Tr. III-164.

Concentrated animal feeding operations:

    61. Accelerate the schedule for permitting concentrated animal feeding operations
       because now there is virtually a complete lack of permitting and a tremendous need
       for enforcement.  Tr. 111-25-26, 129-131, 178-180.

    62. Require states to assume responsibility for permitting concentrated animal feeding
       operations within their jurisdiction.  (A corollary recommendation is to educate
       states that have not had much experience with concentrated animal feeding
       operations about the associated environmental problems, because states often
       assume that these facilities do not discharge and, hence, do not require permits.)
       Where states are not interested in permitting these facilities, conduct federal
       inspections. Tr. III-130-131.

    63. Investigate compliance with permit and  regulatory requirements in Oklahoma where
       there has been a rapid proliferation of concentrated animal feeding operations in a
       small geographic area.  Tr. I- 332-344, III-131-132, 180. (See related resolutions
       pertaining to tribal land, below.)

Urban air pollution:

    64. Adhere to the recommendations of the NEJAC Air and Water Subcommittee on the
       urban air toxics strategy. (See their report, a copy of which can be found  as
       Appendix C on the EPA Web Site.) Many of these recommendations address
       significant outstanding issues, such as choice of pollutants, selection of monitoring
       location and technology  ~ issues which remain relevant during the implementation
       phase of the strategy. Tr. III-l 16-120.

    65. Structure public hearings and workshops around the country on implementation of
       the urban air toxics strategy to address monitoring questions, choice of technology,
       and state and local pilot projects.  Tr. III-l 16-120.

    66. Develop model materials on urban air toxics so  that when state and local
       governments start implementing the program, communities can participate
       effectively. Tr. III-120-121.

    67. Address the environmental justice implications of energy generation. Tr. III-l 19-
       127.

    68. Address the environmental justice implications of Tier II reductions in the amount of
       sulfur in commercially sold gasoline.  The concern is that, as refineries tighten
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        production processes to produce cleaner fuels, they will emit more locally.  Trading
        programs may allow facilities to offset local emission increases with estimates of
        emission reductions from cleaner fuels.  Tr. III-127-129.

    69.  Create a two (2)-page document informing communities impacted by Tier II-related
        local emission increases how to ensure new source review of plant process changes
        and reasonable reductions in local emissions.  Tr. Ill-127-129.

    70.  Assess the pollution effects of permitted and proposed nuclear incinerators such as
        that proposed for Idaho Falls. Tr. III-134.

    71.  Take specific actions with respect to Puerto Rico's state implementation plan (SIP);
        namely,  a) require Puerto Rico to revise the SIP because the regulations for power
        plants do not include federally mandated emission limitations on sulfur dioxide and
        particulates, even in nonattainment areas, b) require these power plants to use clean
        fuel (i.e., sulfur content of no more than 0.5%), and c) require these power plants to
        install continuous emission monitoring for sulfur dioxide. Tr. III-135-143,  183.

    72.  In consultation with the U.S. Department of Transportation, convene a meeting of
        the New Jersey Department of Transportation, the New Jersey Department of
        Environmental Protection, and the South Jersey Transportation Authority to address:
        a) long-term air quality issues associated with the Atlantic City Tunnel Project, b)
        community exposure to contaminated soil during construction, c) potential post-
        construction impacts such as flooding and safety, and d) the broader policy issues
        implicated by this project. Tr. III-153-155.  (A copy of the NEJAC Resolution can
        be found in the NEJAC Executive Summary Report on the EPA Web Site as
        Appendix B.)

Streamlining, trading, offsets and other alternative  compliance schemes:

    73.  Five different recommendations for "alternative compliance schemes" emerged;
        some of these are mutually exclusive:

        a)  (From EPA's Air Program), explore whether, in certain communities heavily
           burdened by toxics or large concentrations of pollutants, the desire for economic
           development can be harnessed to  drive reduced total loadings of toxics.
           Specifically,  communities could proactively undertake toxic reductions (e.g.,
           replace diesel-fueled buses with natural gas-fueled vehicles, retrofit pollution
           controls on existing trucks and buses, replace oil-based solvents with water-
           based products) and identify still further potential emission reductions.
           Accomplished emission reductions would provide room for new growth;
           targeted, desired reductions  would identify potential offsets for new sources.
           Both types of reductions ~ and the streamlined, expedited permitting EPA
           would offer new sources in these  communities ~ would make the communities
           more attractive to new development than communities where further growth
           would cause  environmental justice problems. Tr. 1-140-148,111-25, 29-46.

        b)  Explore whether global facility permits, used in several states, provide an
           opportunity to reduce total emission loadings. Tr. 111-39.

        c)  Recognize that compliance alternatives are a huge potential loophole in
           permitting. Trading, in particular, allows a company to bypass public
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           involvement and obviate community gains in permitting.  EPA, therefore,
           should adhere to the recommendations of the Enforcement Subcommittee of
           NEJAC as outlined in their comments on the Economic Incentive Program
           document, a copy of which can be found in the NEJAC Executive Summary
           Report on the  EPA Web Site as Appendix B. Tr. 1-145-148, 318, 327-332, III-
           62-64, 167-178.

       d)  If trading is to be allowed, consider some or all of the following limitations on
           it:
               •  restrict its use to situations that directly and favorably impact conditions
                  in environmental justice communities.  Tr. III-113-114.
               •  avoid  using counties as a geographic area for emission trading purposes
                  because  California has counties (like San Bernadino) that are as big as
                  Connecticut, Rhode Island, and Massachusetts combined. Reducing
                  pollution in the county as a whole may still impact environmental
                  justice communities adversely or disproportionately. Tr. 111-41-45.
               •  avoid  emission trading of lead emissions. Tr. III-163.
               •  consider that less poisoning of a community is still poisoning.  Tr. I-
                  271-272,111-59.
               •  prohibit  streamlining or expediting the permit process in overly
                  impacted communities because additional time may be needed to
                  evaluate the additional complex issues presented in these communities.
                  Tr. 1-227-228.

       e)  Create an environmental emission trading review board of representatives of
           environmental justice communities; federal, state, and local officials; and
           experts in health, engineering,  and real estate. The board would rank and
           prioritize environmental justice projects, contract for professional services
           where necessary, use a pre-funded $50 million emission trading bank to address
           disparate impacts, and auction emission reduction credits.  Tr. 1-230-234.

Tribal and Indigenous Peoples:

    74. Recognize that EPA  has a special legal relationship with tribes who are sovereign
       governments. In recognition of that relationship, educate representatives of both
       regulated communities (e.g., industry) and regulators (i.e., state and federal
       government agencies) on indigenous cultural values. Lack of understanding of
       indigenous cultural, religious, and historical values permeates permitting on or
       adjacent to tribal lands.  Tr. 1-240-246,111-20-23, 77-83.

    75. Notify potentially  affected tribal governments and members directly of pending
       review of permits as  soon as a permit application is submitted. Tr. 1-245,111-20.
       Identify community leaders accurately; do not rely on local government to represent
       environmental justice communities, because many low-income and/or minority
       communities do not have visibility or political influence. Tr. 1-129-130. However,
       consistent with the government-to-government relationship with tribal governments
       and the federal trust responsibility owed to them, in the case of Native American
       communities, initial outreach efforts should, in the first instance, be directed to the
       tribal governments as representatives of their communities and to their tribal
       members. Additional outreach to other potentially affected persons and
       nongovernmental organizations  also may be needed to ensure optimal public
       participation.
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    76.  Encourage and support ongoing consultation between tribes and the permitting
        agency throughout the permit process.  Tr. 1-242-245,111-20.

    77.  Modify public participation requirements to account for the special problems
        attendant in reaching small, isolated rural communities on tribal lands.  Tr. 1-86-88.

    78.  Develop core water quality standards for permitting on tribal lands lacking such
        standards. Federal action is necessary because tribes which have adopted their own
        standards have found those standards attacked approved water quality standards,
        protect the quality of reservation waters from excessive degradation due to licensing
        or permitting activities by developing, in consultation and agreement with tribes,
        core water quality standards. Tr. 1-127-128.

    79.  Include tribal lands in best management practice and regulatory requirements
        applicable to waste transfer stations. Tr. 1-127-128.

    (Note related recommendations #16, pertaining to substantive permit criteria, #38,
    pertaining to training, #51, pertaining to funding, and #63 pertaining to concentrated
    animal feeding operations on tribal land.)

Private sector initiatives:

    80.  Encourage the private sector to address environmental justice issues.  Specific
        initiatives suggested by industry representatives for the private sector include:

               •   Utilize the NEJAC guidelines on public participation.  Tr. 1-198-199.

               •   Commit to listen, record, and respond to every  question asked of a
                   permit applicant at a public meeting.  Tr. 1-198-199, R. 20.

               •   Change corporate policies on siting and acquisition so that
                   environmental personnel are integrated into decision-making earlier in
                   the process, before companies are heavily invested in a particular site.
                   (Under current practice, siting is primarily market-driven. Only after a
                   lengthy analysis of non-environmental factors,  such as access to
                   supplies and transportation corridors, growth potential, etc., does a
                   company look at the community, its environment and quality of life.)  R.
                   12.
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IV.  APPENDICES (On EPA Web Site)

A - Pre-Meeting Report
          http://www.epa.gov/oeca/main/ei/neiacpub.html

B - December 1999 NE JAC Executive Council Meeting
          http://www.epa.gov/oeca/main/ei/neiac/past  nmeet.html

C - Air/Water Subcommittee Comments on Draft Urban Air Strategy
          http://www.epa.gov/oeca/main/ei/neiacpub.html

D - Transcripts from November 30-December 2,1999 NEJAC Meeting
      I - November 30,1999, Plenary Session w/Permitting Public Comment
           Session
     II - December 1,1999, General Public Comment Period
     III - December 2,1999, Plenary Session
          http://www.epa.gov/oeca/main/ei/neiacpub.html
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