55 Vx^'y'V a
\ x/ OFFICE OF INSPECTOR GENERAL
Catalyst for Improving the Environment
Evaluation Report
EPA Needs to Consistently
Implement the Intent of the
Executive Order on
Environmental Justice
Report No. 2004-P-00007
March 1,2004
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Report Contributors: Daniel J. Carroll
Steven J. Weber
Abbreviations
CEQ Council on Environmental Quality
EPA Environmental Protection Agency
EJ Environmental Justice
FTEs Full-Time Equivalents
GAO General Accounting Office
GIS Geographical Information System
OECA Office of Enforcement and Compliance Assurance
OEJ Office of Environmental Justice
OIG Office of Inspector General
SEP Supplemental Environmental Project
Cover Photo: Image obtained from US EPA
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a
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
INSPECTOR GENERAL
March 1, 2004
MEMORANDUM
SUBJECT: Evaluation Report: EPA Needs to Consistently Implement the Intent of the
Executive Order on Environmental Justice
Report No. 2004-P-00007
FROM: Kwai Chan Ul
Assistant Inspector General for Program Evaluation
TO: Stephen L. Johnson
Acting Deputy Administrator
Attached is our final report regarding the Environmental Protection Agency's (EPA's)
implementation of Executive Order 12898 on Environmental Justice, its integration into the
mission of EPA, and associated actions to protect minority and low-income populations. This
report contains findings that describe problems and corrective actions the Office of Inspector
General (OIG) recommends. This report represents the opinion of the OIG, and the findings in
this report do not necessarily represent the final EPA position. Final determinations on matters
in the report will be made by EPA managers in accordance with established procedures.
Action Required
In accordance with EPA Manual 2750, as the action official, you are required to provide a
written response to the findings and recommendations presented in this final report within 90
days of the final report date. The response should address all recommendations. For corrective
actions planned but not completed by the response date, please describe the actions that are
ongoing and provide a timetable for completion. Where you disagree with a recommendation,
please provide alternative actions for addressing the findings reported.
If you or your staff have any questions regarding this report, please contact me
at (202) 566-0827 or Jeffrey Harris, Director for Program Evaluation, Cross-Media Issues, at
(202)566-0831.
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Attachment
cc:
Phyllis Harris, Acting Assistant Administrator for the Office of Enforcement and
Compliance Assurance
Barry E. Hill, Director, Office of Environmental Justice
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Executive Summary
Purpose
In 1994, President Clinton issued Executive Order 12898, "Federal Action to
Address Environmental Justice in Minority Populations and Low-income
Populations," to ensure such populations are not subjected to a disproportionately
high level of environmental risk. The overall objective of this evaluation was to
determine how the U.S. Environmental Protection Agency (EPA) is integrating
environmental justice into its day-to-day operations. Specifically, we sought to
answer the following questions:
• How has the Agency implemented Executive Order 12898 and integrated its
concepts into EPA's regional and program offices?
• How are environmental justice areas defined at the regional levels and what is
the impact?
Results in Brief
EPA has not fully implemented Executive Order 12898 nor consistently
integrated environmental justice into its day-to-day operations. EPA has not
identified minority and low-income, nor identified populations addressed in the
Executive Order, and has neither defined nor developed criteria for determining
disproportionately impacted1. Moreover, in 2001, the Agency restated its
commitment to environmental justice in a manner that does not emphasize
minority and low-income populations, the intent of the Executive Order.
Although the Agency has been actively involved in implementing Executive
Order 12898 for 10 years, it has not developed a clear vision or a comprehensive
strategic plan, and has not established values, goals, expectations, and
performance measurements. We did note that the Agency made an attempt to
issue an environmental justice toolkit; endorsed environmental justice training;
and required that all regional and programmatic offices submit "Action Plans" to
develop some accountability for environmental justice integration.
In the absence of environmental justice definitions, criteria, or standards from the
Agency, many regional and program offices have taken steps, individually, to
implement environmental justice policies. This has resulted in inconsistent
approaches by the regional offices. Thus, the implementation of environmental
justice actions is dependent not only on minority and income status but on the
EPA region in which the person resides. Our comparison of how environmental
Disproportionately impacted: A generic term used by EPA, regions, and stakeholders to define the adverse effects of
environmental actions that burden minority and/or low-income populations at a higher rate than the general population.
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justice protocols used by three different regions would apply to the same city
showed a wide disparity in protected populations.
We believe the Agency is bound by the requirements of Executive Order 12898
and does not have the authority to reinterpret the order. The Acting Deputy
Administrator needs to reaffirm that the Executive Order 12898 applies
specifically to minority and low-income populations that are disproportionately
impacted. After 10 years, there is an urgent need for the Agency to standardize
environmental justice definitions, goals, and measurements for the consistent
implementation and integration of environmental justice at EPA.
Recommendations
We recommended that the Acting Deputy Administrator issue a memorandum
reaffirming that Executive Order 12898 is an Agency priority and that minority
and low-income populations disproportionately impacted will be the beneficiaries
of this Executive Order. Additionally, EPA should establish specific time frames
for the development of definitions, goals, and measurements. Furthermore, we
recommended that EPA develop and articulate a clear vision on the Agency's
approach to environmental justice. We also recommended that EPA develop a
comprehensive strategic plan, ensure appropriate training is provided, clearly
define the mission of the Office of Environmental Justice, determine if adequate
resources are being applied to environmental justice, and develop a systematic
approach to gathering information related to environmental justice.
Agency Comments and OIG Evaluation
In the response to our draft report, the Agency disagreed with the central premise
that Executive Order 12898 requires the Agency to identify and address the
environmental effects of its programs on minority and low-income populations.
The Agency believes the Executive Order "instructs the Agency to identify and
address the disproportionately high and adverse human health or environmental
effects of it (sic) programs, policies, and activities." The Agency does not take
into account the inclusion of the minority and low-income populations, and
indicated it is attempting to provide environmental justice for everyone. While
providing adequate environmental justice to the entire population is
commendable, doing so had already been EPA's mission prior to implementation
of the Executive Order; we do not believe the intent of the Executive Order was
simply to reiterate that mission. We believe the Executive Order was specifically
issued to provide environmental justice to minority and/or low-income
populations due to concerns that those populations had been disproportionately
impacted by environmental risk.
A summary of the Agency's response and our evaluation is included at the end of
each chapter. The Agency's complete response and our evaluation of that
response are included in Appendices D and E, respectively.
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Table of Contents
Executive Summary
Chapters
1 Introduction 1
2 EPA Has Not Fully Implemented Environmental Justice 7
3 Regions Do Not Use Consistent Approaches When
Identifying Environmental Justice Communities 19
Appendices
A Executive Order 29
B Memorandum: EPA's Commitment to Environmental Justice 35
C Details on Scope and Methodology 37
D EPA Response to Draft Report 39
E OIG Comments on EPA's Response 59
F Distribution 67
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Chapter 1
Introduction
Purpose
The overall objective of this evaluation was to determine how the
U.S. Environmental Protection Agency (EPA) is integrating environmental justice
into its day-to-day operations, which are administered by EPA regional and
program offices. Specifically, we sought to answer the following questions:
• How has the Agency implemented Executive Order 12898, Federal Action to
Address Environmental Justice in Minority Populations and Low-income
Populations, and integrated its concepts into EPA's regional and program
offices?
How are environmental justice areas defined at the regional levels and what is
the impact?
Background
What is Environmental Justice?
In 1982, environmental justice became a nationally recognized issue. A minority
community in North Carolina protested against the proposed siting of a landfill
for polychlorinated biphenyls (PCBs) within the community. In response to the
protest, a District of Columbia delegate requested the U.S. General Accounting
Office (GAO) to investigate siting issues with respect to race and income.
A 1983 GAO report found that three of the four commercial hazardous waste
facilities in EPA Region 4 (which includes North Carolina) were in minority areas
and the fourth was in a low-income area.
Two major environmental justice conferences were held in the early 1990s:
• The University of Michigan School of Natural Resources' Conference on
Race and the Incidence of Environmental Hazards (1990)
• The Environmental Leadership Summit (1991)
Partially in response to these events, the EPA Administrator formed the EPA
Environmental Equity Workgroup in 1990. The Workgroup's mission was to
evaluate whether minority and low-income communities bear disproportional
environmental risk. In June 1992, the Workgroup noted in its report,
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"Environmental Equity: Reducing Risk in All Communities," that minority and
low-income populations bear a higher environmental risk burden than the general
population.
An EPA environmental justice biennial report defined "environmental justice"
as:
... 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. Fair treatment
means that no group of people, including a 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 and local, and tribal programs and policies. Meaningful
involvement means that: (1) potentially affected community
residents have an appropriate opportunity to participate in
decisions about a proposed activity that will affect their
environment and/or health; (2) the public's contribution can
influence the regulatory agency's decision; (3) the concerns of all
participants involved will be considered in the decisionmaking
process; and (4) the decisionmakers seek out and facilitate the
involvement of those potentially affected.
Who is Protected by the Environmental Justice Executive Order?
On February 11, 1994, President Clinton issued Executive Order 12898,
"Federal Action to Address Environmental Justice in Minority Populations and
Low-income Populations " (see Appendix A). The order states:
To the greatest extent practicable and permitted by law and
consistent with the principles set forth in the report on the
National Performance Review, each Federal agency shall make
achieving environmental justice part of its mission by identifying
and addressing, as appropriate, disproportionately high and
adverse human health or environmental effects of its programs,
policies and activities on minority populations and low-income
populations in the United States and its territories and
possessions, the District of Columbia, the Commonwealth of
Puerto Rico, and the Commonwealth of the Mariana Islands.
An outline of how the environmental justice process should work is shown in
Figure 1.1.
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Figure 1.1 : Environmental Justice Process
Identify Low-Income
/ M in o rity
Communities
[Based on Demographic Data]
No
No EJ Ana lysis /
Subject to
General Agen cy's
R e sp o n sib ilitie s
C o m m u n ity
Disproportionately
Im p a cte d ?
[Analysis using Health
Data & Cumulative Effects]/
[EPA Needs To
A d d re ss
S itu a tio n :
[EJ Grants, SEPs,
Ta rg e ted
Inspection &
.Enforcements etc.]
\
EJ: Environmental Justice
SEP: Supplemental Environmental Project
Source: EPA-OIG
The Presidential Memorandum2 accompanying the Executive Order provides that
existing laws can be used to meet the environmental justice objectives.
Specifically, the President noted that:
Environmental and civil rights statutes provide many opportunities
to address environmental hazards in minority communities and
low-income communities. Application of these existing statutory
provisions is an important part of this Administration's efforts to
prevent those minority communities and low-income communities
from being subject to disproportionately high and adverse
environmental effects.
In 1995, EPA issued its Environmental Justice Strategy to implement the
Executive Order. The stated purpose of the Strategy was to ensure the integration
of environmental justice into the Agency's programs, policies, and activities
consistent with the Executive Order. In August 2001, EPA Administrator
Presidential Memorandum Accompanying Executive Order 12898 (February 11, 1994).
3
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Christine Todd Whitman issued a memorandum reaffirming EPA's commitment
to achieving environmental justice (see Appendix B).
Who Is Responsible for Integrating Environmental Justice into the
Agency's Policies and Programs?
In November 1992, in response to the EPA Environmental Equity Workgroup's
findings, EPA established the Office of Environmental Equity (renamed the
Office of Environmental Justice in 1994). The EPA Administrator made
environmental justice an Agency priority in 1993. In 1994, the Office of
Environmental Justice started the Environmental Justice Small Grants Program to
provide financial assistance to community-based/grassroots organizations and
tribal governments dealing with local environmental justice issues.
EPA's Office of Environmental Justice resides in the Office of Enforcement and
Compliance Assurance (OECA). There is no specific environmental justice
statute to fund environmental justice activities in EPA. Consequently, the Office
of Environmental Justice performs activities using a general Environmental
Program Management appropriation budget line item; in Fiscal Year 2002, this
amounted to approximately $4.4 million or less than 1 percent of the OECA
budget. The Office of Environmental Justice also performs grant making
activities pursuant to the EPA Delegation of Authority 1-47.
The Office of Environmental Justice also manages the National Environmental
Justice Advisory Council. This Council is comprised of representatives from
academia; business and industry; State, tribal, and local governments;
environmental organizations; community groups; and non-governmental
organizations. This Council provides advice and recommendations to the EPA
Administrator on matters related to environmental justice.
The Executive Order established a Federal Interagency Working Group chaired
by EPA and comprised of 11 Federal departments and agencies, as well as several
White House offices. EPA's Office of Environmental Justice, while overseeing
the integration of environmental justice into EPA's policies, programs, and
activities, serves as the lead on the Federal Interagency Working Group to
incorporate environmental justice into all Federal agencies.
The EPA Environmental Justice Executive Steering Committee, formed in 1994,
is generally comprised of the deputy assistant administrators in each program
office, the deputy regional administrators in the regional offices, and other senior
Agency officials. The Steering Committee provides leadership and direction on
strategic planning, and cross-media policy development and coordination, to
ensure that environmental justice is incorporated into the Agency's operations. In
April 2002, the Steering Committee agreed to develop Environmental Justice
Action Plans. Headquarters' program offices and the regional offices were
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required to develop action plans based on the key elements of management
accountability, training, environmental justice assessment, and evaluation.
In each regional office there is at least one environmental justice coordinator.
The coordinators are the focal point within their organizations and serve as
liaisons to the Office of Environmental Justice. The coordinators assist their
regions in developing and implementing the action plans. The coordinators'
duties include policy advice, program development, and implementation of
programs within their regions. The regional environmental justice coordinators
receive their funding from their regions.
Figure 1.2: Groups Responsible for Environmental Justice
Nationa I
En vironm enta I
Justice Advisory
Council
EPA
Adm in istra tor
EPA Office of
Enforcem e nt &
Com plia nee
Assu ra nee
Office of
En vironm e n ta I
Ju stice
Fede ra I
Inte ragency
W orking
G rou p
EPA
P rogram m atic
Offices
/ Executive
Stee ring
Com m itte e
EPA Regiona I
Offices
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Scope and Methodology
Our evaluation focused on EPA's integration of environmental justice into its
core programs. Our work was performed at four EPA regions and EPA
headquarters offices.
The regions were selected on the basis of the State emission credit trading
programs operated within their regions. The initial focus of the evaluation was
based on allegations received from the Public Employees for Environmental
Responsibility, relating to the open market trading of air emission credits. The
allegations questioned whether credits generated by facilities located in affluent
areas were then used by facilities in minority and low-income communities. Our
preliminary research found that EPA regions identified environmental justice
areas different from one region to the next, rendering a determination on the
allegation problematic. Additionally, based on a concern raised by the EPA
Deputy Administrator in December 2002, regarding the Agency's progress in
environmental justice integration, we decided that the evaluation would be
conducted in two phases. This report covers phase one, addressing the questions
associated with integration of environmental justice into EPA programs. A
second report will address air emission credit trading's impact on environmental
justice populations.
We performed our field work from December 2002 through September 2003. We
performed this evaluation in accordance with the Government Auditing
Standards, issued by the Comptroller General of the United States as they apply
to performance audits. Further details on the scope and methodology of our
evaluation are in Appendix C of this report.
The EPA Office of Inspector General (OIG) has not conducted prior reviews of
the Office of Environmental Justice's efforts to integrate environmental justice
into the Agency's daily activities.
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Chapter 2
EPA Has Not Fully Implemented
Environmental Justice
EPA has not fully implemented Executive Order 12898 because it has not
identified minority and low-income communities, or defined the term
disproportionately impacted. Regions and program offices have taken steps,
individually, to implement environmental justice, but there has been a void in
definitions and guidance from EPA. Although the Agency has been actively
involved in implementing Executive Order 12898 for 10 years, it has not:
• Developed a clear vision.
• Developed a comprehensive strategic plan.
• Established values, goals, expectations, and performance measurements.
This has resulted in a wide array of attributes for identifying minority and low-
income communities, inconsistent application of environmental justice actions
across EPA's regions and programs, and the Agency's inability to accurately
quantify environmental justice integration efforts. Consequently, EPA has not
ensured on a consistent basis that minority and low-income populations have been
afforded the actions that will benefit and protect them as intended by the
Executive Order. Due to regional variations, populations in some States do not
receive the same level of environmental justice action as in other States. In 2001,
the EPA Administrator stressed that environmental justice is for everyone. While
this is consistent with EPA's overall mission, it does not address the Executive
Order's intent to provide specific actions for minority and low-income
populations.
Executive Order 12898 Has Not Been Fully Implemented
EPA has not fully complied with the intent of Executive Order 12898. The Order
calls for each Federal agency to make environmental justice part of its mission by
identifying and addressing disproportionately high and adverse human health or
environmental effects of its programs, policies, and activities on minority
populations and low-income populations. However, the Office of Environmental
Justice has not provided regions or program offices with:
• The definitions or attributes necessary to determine what constitutes minority,
low-income, a minority or low-income community, or
• A definition of disproportionately.
As a result, several regions have developed their own interim guidelines that
define and identify potential environmental justice areas based on demographics
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but most do not address the disproportional issue. This flexibility has impacted
limited resources because many regional and program offices' staffs have
prepared interim guidelines
and mapping attributes for
environmental justice area
definition. These disparate
definitions have created
inconsistencies among the
regions as to who should be
included in a defined
environmental justice area
(see Chapter 3). The lack of a
generic environmental justice
definition for minority and
low-income is also impacting g ^^ Creation of an interagency Working Group on
Environmental Justice.
...the Administrator of the Environmental Protection
Agency...shall convene an interagency Federal Working
Group on Environmental Justice... The Working Group
shall:
1. provide guidance to Federal agencies on criteria for
identifying disproportionately high and adverse human
health or environmental effects on minority populations
and low-income populations.
EXECUTIVE ORDER 12898
§ 1-101. Agency Responsibility.
To the greatest extent practicable and permitted by law,
and consistent with the principles set forth in the report on
the National Performance Review, each Federal agency
shall make achieving environmental justice part of its
mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or
environmental effects of its programs, policies and
activities on minority populations and low-income
populations in the United States and its territories and
possessions.... (emphasis added)
the Agency from being able to
quantify the program's
accomplishments.
Executive Order 12898,
signed in 1994, focuses
Federal agencies' attention on
the environmental and human
health conditions in minority
and low-income populations
with the goal of achieving
environmental justice. The
Executive Order calls for the
Agency to take various
actions (see box). The ^^^^^^^^^^^^^^^^^*
Agency has attempted to
address § 1-102 in part, and § 1-103, but has not addressed § 1-101.
EPA Elected Not to Provide National Definition of
Environmental Justice
§ 1-103. Development of Agency Strategies.
...each Federal agency shall develop an agency-wide
environmental justice strategy... that identifies and
addresses disproportionately high and adverse human health
or environmental effects of its programs, policies, and
activities on minority populations.
The identification of what constitutes an environmental justice area needs to be
determined in order to comply with the Executive Order's provisions. The
Executive Order requires collecting data, completing studies, sharing information,
and ensuring participation with specific populations (minority and low-income)
that have been disproportionately impacted. EPA's ability to comply with the
Order's requirements in a consistent manner is impeded if it does not first identify
the intended recipients of the environmental justice actions. Not defining what a
minority and low-income community is makes it difficult for EPA program staff
to incorporate environmental justice into its day-to-day activities. However, the
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Office of Environmental Justice Director told us that:
...Because of demographic differences, and the unique, fact
specific circumstances in which each case arises, at this point,
EPA has elected not to establish a national definition of an
"environmental justice community " or to establish specific "cut
points" for determining disproportionate impacts.
This statement is contrary to language in the Executive Order that calls for the
Agency to identify and address minority and low-income communities and to
define disproportionately impacted. In addition, the majority of regions have
either issued interim guidance that defines who makes up an environmental
justice area or have adopted specific attributes for mapping these identified areas.
While EPA has not made this determination, other Federal agencies and offices
have had working definitions for many years. The Council on Environmental
Quality (CEQ) - which has oversight of the Federal government's compliance
with the Executive Order - along with such other Federal agencies as the
Department of Transportation and Department of Defense, have defined minority,
low-income, and disproportionate impact. CEQ advises:
In order to determine whether a proposed action is likely to have a
disproportionately high and adverse human health or environmental
effects on low-income populations, minority populations, or Indian tribes,
agencies should identify a geographic scale for which they will obtain
demographic information on the potential impact area.3
EPA's approach is contrary to the CEQ guidance. We disagree with the Office of
Environmental Justice Director's current approach, and believe the Agency's
previous actions support our position. The Agency prepared an environmental
justice strategy in 1995, as well as joined an inter-agency workgroup, both in
compliance with the Executive Order's provisions. Also, the Agency's 1995
strategy provided the following:
EPA will include in its enforcement efforts identification of
communities and populations, such as low-income urban and rural
populations which suffer from disproportionately high and adverse
human health or environmental effects.
Based on the actions taken by most regions to identify an environmental justice
area, as well as the Environmental Justice Strategy's provisions, we believe the
Agency should comply with the Executive Order by identifying and defining
minority and low-income communities on a national level.
Executive Office of the President, Council on Environmental Quality "EnvironmentalJustice Guidance Under the
National Environmental Policy Act. (December 10, 1997).
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Agency De-Emphasizes Minority and Low-Income Populations
The EPA Administrator reaffirmed in August 2001 that integration of
environmental justice into its programs, policies, and activities remained an
Agency priority.4 However, the
Agency changed the focus of the
EPA Administrator
environmental justice program by de- "...Integration of environmental justice
emphasizing minority and low-income
populations and emphasizing the
concept of environmental justice for
„,. .. , ,u August 9,2001 Memorandum
everyone. This action moved the | \ \
Agency away from the basic tenet of
the Executive Order and has
contributed to the lack of consistency in the area of environmental justice
integration.
In 1998, the direction of the Office of Environmental Justice changed from an
emphasis on community outreach to an emphasis on integration of environmental
justice concepts in the Agency's activities. The Director of the Office of
Environmental Justice advised that his office had moved away from the Executive
Order. That statement is evident in the Administrator's memorandum. While
affirming a commitment to environmental justice in the August 2001
memorandum, the memorandum also made the point that environmental justice is
not limited to minority and/or low-income populations only, but is for everyone.
This interpretation was derived from EPA's overall mission, as set forth in the
1997 Strategic Plan, which is to ensure that:
All Americans are protected from significant risks to human health
and the environment where they live, learn and work.
Additionally, in June 2002, the Office of Environmental Justice advised the
Agency's staff responsible to implement environmental justice:
Senior management should recognize that the environmental justice
program is not an affirmative action program or a set-aside program
designed specifically to address the concerns of minority communities
and/or low-income communities. To the contrary, environmental justice
belongs to all Americans and it is the responsibility of Agency officials, as
public servants, to serve all members of the public.
The interpretation that environmental justice is for everyone, while consistent
with the Agency's overall mission, moved the Agency's environmental justice
Christine Todd Whitman, Administrator, U.S. Environmental Protection Agency, memorandum to Assistant
Administrators et al., "EPA's Commitment to Environmental Justice," August 9, 2001.
10
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focus away from minority and low-income populations. Based on concerns raised
in the early 1990s, these segments of the population were found not to be
benefitting from the Agency's overall mission,5 and the Executive Order was
issued in an attempt to draw more attention to this specific part of the population.
The Administrator's August 2001 memorandum and the Office of Environmental
Justices actions, returns the Agency to pre-Executive Order status, where
everyone is assumed to be afforded protection under the environmental laws and
regulations. It does not address the need to ensure that minority and low-income
populations are protected from disproportionate environmental risks. It poses the
question of why is there a need for separate environmental justice efforts at EPA.
EPA Has Not Developed a Strategic Plan for the Office of
Environmental Justice
Strategic plans are intended to be the starting point for each Agency's
performance measurement efforts. The Office of Personnel Management has
Figure 2.1 OPM's Strategic Planning Model
developed a systematic
approach to the
development of a
successful program.
The Office of Personnel
Management's model
suggests that five
essential steps are
necessary to implement
a concept like
environmental justice
(see Figure 2.1).
EPA has not developed
a comprehensive
strategic plan for
integrating
environmental justice.
In lieu of such a plan,
some offices at the
program and regional
levels developed their
own strategies for environmental justice, which inadvertently made the
coordination of all environmental justice programs at the national level more
challenging. There have been recent attempts at coordination of the program and
regional offices through action plans. These plans, which were first requested to
be submitted on September 30, 2002, asked each region and program office to
Determine
supply,
demand, and
discrepancies
Develop
an action plan
Saurcc:
' EPA "Environmental Equity-Reducing Risk for All Communities" (June 1992 EPA230-R-92-008A).
11
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follow a suggested template that will describe the region/office efforts in
integrating environmental justice into its day-to-day activities. However, this step
is out of order, since this process generally occurs subsequent to articulation of an
overall Agency strategic plan and clear vision for which the action plans are
linked.
While most program offices and regions reviewed have embarked upon some
form of strategic planning, the Office of Environmental Justice has not. We were
advised by the Office of Environmental Justice Director in March 2003 that:
. . . Consistent with the expectation that the Agency's
environmental justice strategy would evolve, several of the
Headquarters Offices and Regions have developed Region/Office
specific strategies and policies. In April 2002, the Office of
Environmental Justice proposed, and the Environmental Justice
Executive Steering Committee ("Steering Committee ") agreed,
that a more current and consistent Agency-wide strategic
approach was needed.
In response to the draft report the Director of the Office of Environmental Justice
provided a draft Office of Environmental Justice Strategic Plan for 2004.
Seven Key Areas for Effective Implementation
To evaluate the Office of Environmental Justice efforts to integrate environmental
justice into the Agency's operations despite the lack of a strategic plan, we used
OIG's "Assessing Organizational Systems: A User's Guide," issued in November
2002. This tool was designed to assess
organizational "Systems" by providing
managers with seven key areas that
establish the foundation for an
organization or program to be
successfully implemented (see
Figure 2.2). We assessed the Agency's
progress in implementing environmental
justice against these key areas. We
focused on the areas of leadership,
strategic planning, performance results,
and human capital, because they were the
most pertinent to our evaluation. We
found the following.
Figure 2.2: Seven Key Areas
1. Leadership
2. Strategic Planning
3. Customer/Stakeholder and
Market Focus
4. Information and Analysis
5. Human Capital
6. Process Management
7. Performance Results
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Agency Leadership Has Not Developed a Clear Vision for
Environmental Justice Integration
The Agency has not provided a clear vision on environmental justice integration,
or objectives that are clear, precise, and focused on environmental results. EPA
has not yet laid out what the Agency seeks to accomplish from environmental
justice integration in terms of real environmental impacts. Consequently, the
Agency has encountered difficulties in realizing effective integration of
environmental justice into the culture of the Agency staff and the programs they
manage. Agency actions are not generally consistent with the Administrator's
proclamation to make environmental justice an Agency priority. Without a plan
or established goals that can be measured or determined based on quantitative
information, the Agency cannot assess progress, provide staff with direction,
make mid-course adjustments, and generally manage the program.
Training - Key Tool in Integration
A major component of the Agency's efforts to integrate environmental justice is
through formal environmental justice training that has been made available for all
Agency employees over the past years. However, the training has had limited
success. The program's lack of definitions of terms and inconsistent training
contributed to the lack of success.
A report by the U.S. Commission on Civil Rights6 on Environmental Justice,
examined EPA's Environmental Justice training and advised:
EPA, itself, has not published comprehensive information
assessing such training or provided information on how, or if, the
training is successfully linked to the integration of environmental
justice concepts into its initiative and programs.
Office of Environmental Justice management had issued a memorandum on
June 18, 2003, that proposed development of a national approach to
environmental justice training. During a National Environmental Justice
Coordinators meeting, it was noted that environmental justice training was being
planned and managed by the Environmental Justice Coordinators according to the
action plans, but was also being conducted independently by some members of
the former Environmental Justice Collaborative. This disconnect led to some
confusion, and the Office of Environmental Justice believes that a more
formalized and structured approach to training is now needed.
We agree a more formalized and structured approach is needed, but this approach
should be expanded beyond training to include the basic definitions of a minority
U.S. Commission on Civil Rights, Not in My Backyard: Executive Order 12,898 and Title VI as Tools for Achieving
EnvironmentalJustice, October2003.
13
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and/or low-income community, as well as common goals and vision for the
environmental justice initiative. We noted a lack of consensus on a common and
shared vision for what constitutes an environmental justice community, and a
wide range of often differing visions at the program office and regional levels.
Variations often existed due to different philosophical views from senior
management of the different regions and program offices.
The U.S. Commission on Civil Rights' report stated similar concerns regarding
this area, noting:
...lack of centralized responsibility for environmental justice
implementation makes it difficult to create agencywide goals,
oversee goals when, and if, they are implemented...Most
importantly, it signals that environmental justice is not apriority
of the agency's mission.
EPA Has Not Monitored Performance Results for
Environmental Justice Integration
EPA has not monitored or evaluated offices' performance and progress against
goals and predetermined objectives. Further, the reports that both the Office of
Environmental Justice and other Agency offices prepare do not provide evidence
of the progress being made by EPA regarding environmental justice. These
reports provide details of activity that often only remotely reflect environmental
justice. For example, Region 6 highlighted as environmental justice a $20,000
grant to prepare Parent's Resource Guide on Childhood Respiratory Health.
Region 3 awarded $20,000 "to improve local watershed conditions through
resident education, site remediation and damage prevention using the efforts of
community members." While these activities may impact minority or low income
communities, they were not specifically designed to do so.
The Region 5 Environmental Justice Coordinator noted the region was in the
process of developing a database to track all environmental justice complaints and
issues, including resolution. This database has the potential to convey useful
comparative information to both EPA managers and the public. If implemented
on a nationwide basis, this database will provide the Office of Environmental
Justice the tool needed to monitor integration in real-time.
Environmental Justice Not Staffed or Organized as Agency Priority
A senior Office of Environmental Justice official advised that staffing at the
program and regional levels are not under the control of the Office of
Environmental Justice but are instead dependent on the Assistant Administrator or
Regional Administrator, respectively. Based on our review of the action plans
submitted to the Office of Environmental Justice, Table 2.1 shows the staffing
disparities in Full-Time Equivalents (FTEs) noted:
14
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Table 2.1 Environmental Justice FTEs Reported by Regional Offices
Region
FTEs
1
12.65
2
2
3
2.1
4
5.5
5
1
6
5
7
3.75
8
6.5
9
50.9
1
2.6 |
Within the regions, positions are funded from regional discretionary funds. For
program-specific environmental justice activities, funding is provided by the
individual program.
EPA Has Not Provided Policy and Guidance
The Office of Environmental Justice's efforts to develop national guidance on
environmental justice have to date been unsuccessful. Staff confused by the lack
of a clear vision and meaningful policy are further frustrated with the lack of a
road map. To fill this void, many of the program and regional offices created
their own policies, developed their own guidance, and created geographical
information system applications to identify minority and/or low-income
communities. A senior Agency official advised:
"Strongly believes that a baseline criteria needs to be established in order to
properly and adequately measure the Agency's EJ activities and actions. From a
Regional standpoint, more focus needs to be placed on those Regions that are
"less aggressive " about their focus on EJ. In other words, on those Regions who
believe that enforcement is for everybody, rather than recognizing special
circumstances exists and need to be addressed in certain types of communities.
Mentioned that some Regions do not even account for disproportional impact.
Again, focus on better definition of EJ will help address this issue. " (Principal
Deputy Assistant Administrator - OECA interview with Office of Environmental
Justice consultant)
The Office of Environmental Justice attempted to provide guidance for the
Agency by developing in 2001 a draft guidance document titled, "Guidance for
Assessing and Addressing Potential Allegations of Environmental Injustice."
This guidance was designed to provide a framework for understanding the
Agency's Environmental Justice program, and to provide a systematic approach
and reference tools to assess and respond to potential allegations of environmental
injustice and prevent injustices from occurring in the first place.
Due to potential litigation concerns, the document's title was changed in 2002 to
"Toolkit for Assessing Potential Allegations of Environmental Injustice." The
document was reviewed and approved by the program and regional offices.
However, Office of General Counsel concerns have delayed draft publication for
public comment.
15
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The toolkit was recently distributed to various stakeholders for comment.
Regional and program staff identified a number of issues, and openly questioned
if they would ever use it. According to one regional environmental justice
coordinator, the toolkit is labor intensive and would require the use of multiple
disciplines. Additionally, the deputy regional administrator for Region 9 advised
in a memorandum to the director of the Office of Environmental Justice regarding
the toolkit, "we must be deliberative in assessing our existing capacity and limited
resources," and strongly recommended that the Office "work to develop an
implementation plan before the end of the fiscal year that outlines budgetary
requirements and potential funding sources" (emphasis added).
The overall concern raised by Agency staff was that the "toolkit" did not provide
a standard definition for minority, low-income, and disproportionately impacted.
Conclusion
EPA has made limited progress in its attempt to integrate environmental justice
into the fabric of its core mission. The Agency has not developed or established:
a clear vision for environmental justice integration; a comprehensive strategic
plan; values, goals, and performance expectations for environmental justice; or
policy and guidance that identifies and addresses communities that are minority,
low-income, and disproportionately impacted. Additionally, the Agency has
made the decision not to identify the intended beneficiaries of the Executive
Order, thus making it problematic to carry out the intent of the order. Further, the
Agency has de-emphasized the focus on minority and low-income populations
through the Administrator's reaffirmation of environmental justice and other
Agency actions. As a result, progress in integrating environmental justice into its
programs has been slow. Actions to date have consisted of a wide array of
approaches and, consequently, inconsistent application of the environmental
justice concepts across EPA.
The Office of Environmental Justice was created to address the allegation that
racial minority and low-income populations bear a higher environmental risk
burden than the general population. However, the Office of Environmental
Justice does not provide funding, and has no authority over the program and
regional offices regarding efforts to integrate environmental justice. Furthermore,
after 10 years, despite the creation of the Office of Environmental Justice, major
environmental justice decisions are made on a consensus basis with the
Environmental Steering Committee. Without national policy or guidance to
follow, or a systematic approach to identify the intended populations of the
environmental justice mandate, the Agency cannot ensure that minority and low-
income populations disproportionately impacted have been afforded the actions
intended by Executive Order 12898.
16
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Recommendations
We recommend that the Acting EPA Deputy Administrator:
2-1. Issue a memorandum that reaffirms that Executive Order 12898 is the
Agency's priority and that minority and low-income populations that are
disproportionately impacted will receive the intended actions of this
Executive Order.
2-2. Clearly define the mission of the Office of Environmental Justice and
provide Agency staff with an understanding of the roles and
responsibilities of the office.
We further recommend that the Acting EPA Deputy Administrator ensure that the
Acting Assistant Administrator for the Office of Enforcement and Compliance
Assurance:
2-3 Establish specific time frames for the development of definitions, goals
and measurements that will ensure that the 1994 Executive Order is
complied with in the most expeditious manner.
2-4. Develop and articulate a clear vision on the Agency's approach to
environmental justice. The vision should focus on environmental justice
integration and provide objectives that are clear, precise, and focused on
environmental results.
2-5. Develop a comprehensive strategic plan for environmental justice. The
plan should include a comprehensive mission statement that discusses,
among other things, the Agency's major functions and operations, a set of
outcome-related goals and objectives, and a description of how the
Agency intends to achieve and monitor the goals and objectives.
2-6. Provide the regions and program offices a standard and consistent
definition for a minority and low-income community, with instructions on
how the Agency will implement and operationalize environmental justice
into the Agency's daily activities. This could be done through issuing
guidance or a policy statement from the Administrator.
2-7. Ensure that the comprehensive training program currently under
development includes standard and consistent definitions of the key
environmental justice concepts (i.e., low-income, minority,
disproportionately impacted) and instructions for implementation.
2-8. Perform a comprehensive study of program and regional offices' funding
and staffing for environmental justice to ensure that adequate resources
are available to fully implement the Agency's environmental justice plan.
17
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2-9. Develop a systematic approach to gathering accurate and complete
information relating to environmental justice that is usable for assessing
whether progress is being made by the program and regional offices.
Agency Comments and OIG Evaluation
The Agency disagreed with our interpretation of the intent of the Executive Order
because it believes that the Agency is not required to define minority, low-
income, minority population, low-income population, and disproportionate
impact. Further it does not believe it is necessary to identify and address minority
and/or low income communities where the Agency's actions may have or may
cause adverse health impacts. The Agency believes that the Executive Order
requires the Agency "to conduct internal reviews of its programs, policies, and
activities instead of seeking to establish a 'brightline' for identifying an
'environmental justice community.' "
We continue to believe that our recommendations are warranted to ensure that the
intent of the Executive Order is carried out. We believe that in order to review all
of its programs, policies, and activities, and to address disproportionately high
and adverse human health or environmental effects, it is necessary to evaluate
these rules on a certain audience. In this case, the Executive Order clearly advises
the Agency that the populations it needs to evaluate are minority and low-income
populations. While providing adequate environmental justice to the entire
population is commendable, doing so had already been EPA's mission prior to
implementation of the Executive Order; we do not believe the intent of the Order
was simply to reiterate that mission.
The Agency's complete written response to our draft report and our detailed
evaluation of that response are contained in Appendices D and E, respectively.
18
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Chapter 3
Regions Do Not Use Consistent Approaches When
Identifying Environmental Justice Communities
EPA's decision not to provide a definition for identifying communities that are
minority, low-income, and disproportionately impacted by environmental risk has
resulted in inconsistent approaches by the regional offices. As a result, the
actions intended in Executive Order 12898 to protect the public have not been
consistently applied. Additionally, limited regional office resources are being
used on a wide array of approaches. These variations have resulted in the Federal
actions provided to a minority and low-income citizen under Executive Order
being dependent not only on income and racial status but the EPA region in which
the person resides. By focusing on one city (Worcester, Massachusetts), with a
population of 172,648, we noted a wide disparity in identifying applicable
populations. For example, the Region 6 protocol identified 102,885 potential
environmental justice individuals, whereas the Region 5 protocol identified
59,731 individuals, a difference of 43,154. Agency staff indicated it is difficult to
operate a program that does not have standard definitions for low-income,
minority, and disproportionately impacted, or what represents an environmental
justice community.
Variations Existed in EPA Regional Approaches to Identifying
Environmental Justice Communities
Since the Agency has not provided national guidance for identifying a minority
and low-income community, it has necessitated the EPA regions to develop their
own interim guidelines. Most regional offices use demographic information with
a geographical information system (GIS) application with limited consistency to
identify minority and low-income communities. These variations can impact the
decision making process for the Agency, which could ultimately impact the
human health and environmental protection of a community. Examples of these
variations include:
• Five regions use income levels as major criteria, while the other five use a
variation of the Federal Poverty Level.
• Five regions compare an area's low-income percentage with the State average.
• Four regions compare minority percentage with the State average.
• Region 4 multiplies the State average by 1.2 to find the low-income threshold.
According to the Director of the Office of Environmental Justice, the Agency has
not adopted a systematic approach to environmental justice because a
predetermined methodology for all offices would impede their flexibility in
integrating the program. For example, the official noted that the approach used in
19
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the northeast section of the country may not work in the southwest section
because of the differences in population makeup. While we agree that some
flexibility is needed based on geographic differences, it is incumbent that the
Agency develop some sort of standards that ensure consistent protection is
afforded under the Executive Order.
Comparison Made of GIS Protocols by Region
The cornerstone of most regional approaches is the use of demographic data
obtained from the U.S. Census Bureau in concert with GIS mapping. (See Figure
3.1) Regions took this approach because the Agency has not created a universal
methodology or utilized a statistical model to identify potential environmental
justice areas.
We identified a wide variation
in the use of GIS applications
by the regions. We analyzed
regional GIS protocols for
EPA Regions 1, 5, and 6
to determine whether the use
of different regional protocols
on the same city's
demographic data resulted in
different geographic
protection. The City of
Worcester, Massachusetts was
judgmentally selected by the
OIG evaluation team because
it represented an average
mid-sized American city7 with
an urban center and residential
areas.
Figure 3.1
Geographical Information System (GIS)
Facilities
as Census into a
geographical analysis.
Maps can be generated
that identify low income
and minority communities
using Regional Protocols.
Concern
GIS Layering Approach
The OIG evaluation team
compiled information from the three EPA regional offices on the definitions and
measures being used to identify "potential environmental justice communities."
A GIS consultant was asked to assess the information provided by the team to
determine whether the regional methodologies could be duplicated. The GIS
consultant integrated the U.S. Census8 data on population income and
Worcester, Massachusetts is the second largest city in Massachusetts with a population of 172,648 (U.S. Census
Bureau, 2000 Census Data), with major universities, hospitals, industrial, urban, and residential areas.
Q
U.S. Census Bureau, 2000 Census Data,
20
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demographics, and produced comparative maps displaying the impacts of the
different methodologies on the existing population.
Differences in Methodologies Impact Population Covered
BLOCK GROUP:
A unit for census data reporting formed
by a cluster of census blocks. Census
block groups generally contain
between 250 and 500 housing units.
There are 167 block groups in
Worcester. Of that amount, Region 6's
protocol identified 112 for inclusion as
potential environmental justice
communities, substantially more than
the other two. Region 1 included 74
and Region 5 was the least inclusive,
covering 68 block groups (see Table 3.1 and Figure 3.2).
Table 3.1 Impact of Different Methodologies on Population
Block Groups
People Covered
Worcester
167
172,648
Region 6
112
102,885
Region 1
74
72,416
Region 5
68
59,731
Figure 3.2 Protection using different Regional Protocols
200000-
150000-
100000-
50000-
./
/
/
/
102885
72411
n
»
0 ^
172648
x — ~7
D Total Pop
D EJ Coverage
Region 1 Region 5 Region 6 Vtorcester
Regional offices generally used mapping to depict potential environmental justice
communities. We used the methodologies of the various regions on one set of
common data for Worcester, and the resulting overlays of protection are shown in
the following maps in Figure 3.3.
21
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Figure 3.3: Overlay Maps for City of Worcester
Region 1 and Region 5
Region 1 and Region 6
Legend
Town Boundary
| | Rivers, Lakes, etc.
Census 2000 Block Group
| | EPA EJ Area Overlap
^| EPAR1 EJArea
j^B EPAR5 EJArea
1 EPAR6 EJArea
Region 5 and Region 6
Worcester, MA
Environmental Justice
Potential Areas of Concern
Inter-Region Comparison
22
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Differences in Methodologies Impact How Minority and
Low-Income Determinations Are Defined
The differences in the regional methodologies impact how the regions defined and
formulated both their minority population and low-income determinations.
In regard to minority population, all three Regions used essentially the same
definition for minority individuals. Each Region differed, however, in its
quantification of what it considered to be a significant minority population
fraction.
• Region 1 identified block groups whose minority fraction ranks in the upper
85th percentile among Statewide block groups.
• Region 5 identified block groups whose minority fraction exceeds twice the
State average for block groups.
• Region 6 differed substantially from both Regions 1 and 5 in that it included
any block group whose fraction matched or exceeded the State average.
Therefore, Region 6's methodology was more inclusive.
In regard to low-income populations, all three Regions used a distinct definition
for identifying low-income block groups. Regions 1 and 5 based their definitions
of economic hardship on the Federal Poverty Level statistic, while Region 6 did
not. Examples of low-income identification are as follows:
• Region 1 defined the economic hardship threshold for a block group if it ranks
at or above the 85th percentile Statewide, that ranking based on the population
fraction having an income below twice the Federal Poverty Level.
• Region 5 defined the economic hardship threshold for a block group to be that
its population fraction with income below the Federal Poverty Level, be twice
the State average.
• Region 6 used the household income statistic.
The fundamental difference between the methodologies was how each region
formulated their definitions. The three regions used essentially the same
definition of minority. However, they used different definitions for poverty, each
referring to different census variables. For example, Regions 1 and 5, while using
the same census file and table, did not use the same variables in that table.
To illustrate the significant difference in the approaches used by individual
regions, we utilized the Region 1's GIS Team survey of all the regions to show
the variations in the GIS models being implemented by the regions. Their survey
disclosed significant variations by the regions (see Table 3.2).
23
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Table 3.2: EJ Tools Survey
Regions
1
2
3
4
5
6
7
8
9
10
Main
Attributes
ofEJ
Definition
Poverty,
Minority
Income,
Minority
Poverty,
Minority
Income,
Minority
Poverty,
Minority
Income,
Minority,
Income,
Minority
Poverty,
Minority
Poverty,
Minority
Income,
minority
Low-income/Poverty
Threshold
<2x Federal Poverty
level or ranks • 85
percentile of State
% population below
census level from
cluster analysis
Census level compared
to State average
Percentage 1 .2x State
average household
income= $15,000
> State average >2x
household income
State average %
w/household
% w/ household
income < $15,000
compared to State >
2x State average
> 25%,50%,75% with
household income <
$12,500
% w/ household
income < Census
poverty level
compared to State avg.
% < Census poverty
level displayed in 25%
levels.
& w/ household income
< $15,000 and $25,000
compared to State
average
Minority Definition
or Threshold
Percentage of
Minority • 85
percentile of State in
Census Block group
% non-white + white
Hispanic > cutoff
value calculated from
cluster analysis for
urban/rural
percentage non-white
+ white-Hispanic > to
State average
1 .2x State average for
percentage non-white
+ white-Hispanic
% of minority within
block group which
exceeds 2x State
average
% of minority within
block group exceeds
State average
>25%,50%,75%
non-white + white-
Hispanic ranking
% non-white + white-
Hispanic > State
average
% non-white + white-
Hispanic displayed in
25% levels
%> 1.2 and 1.5 State
average % of
non-white + white -
Hispanic
Comparative
Analysis
No
Yes
Yes
Yes
Yes
Yes
No
Yes
No
Yes
EJ Terminology
Potential EJ area
Community of
Concern
Potential EJ Area
Potential EJ Area
Area of high
Priority
Potential EJ Index
Potential Area of
Concern
Potential EJ Area
Disproportionately
impacted
Community/area
Disproportionately
impacted
Community
Density
Measures
No
Yes.
Cluster
analysis
urban v.
rural.
Yes
No
No
Yes
No
No
Yes
No
SOURCE: REGION 1 GIS TEAM
While regions were using their limited resources to develop maps, most had
different attributes. Region 1 recently rolled out a new environmental justice
mapping methodology to replace its current method, while Region 9, because of
budgetary constraints, had placed its environmental justice GIS mapping
application on hold. Additionally, the Office of Environmental Justice is
developing a mapping tool at the national level. In our opinion, it would be a
more economical use of GIS resources for the regions and the Agency to adopt a
consistent methodology for identification of minority and low-income
communities.
24
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Variations Existed Among Regions in Actions Identified
That Will Benefit Minority and Low-Income Communities
We found that Agency actions after being identified as a potential environmental
justice community varied greatly by region (see following and Table 3.3):
• In one region, environmental justice grants were awarded to communities the
region determined to be a potential environmental justice community.
• Inspections and enforcement activities were targeted in potential
environmental justice community in some regions but not all.
Supplemental Environmental Projects (SEPs) were negotiated with specific
communities in some regions.
• Information (brochures, etc.) is prepared in the language of the community as
needed.
• Listening sessions are held to engage stakeholders through hosting
community dialogue within their States.
Table 3.3 Environmental Justice Benefits Variations
Regions
1
5
6
9
SEPs
X
X
X
Targeted
Environmental
Justice Grants
X
Targeted
Inspections &
Enforcement
X
X
X
Multi-lingual
educational
outreach
X
X
X
Listening
Sessions
X
X
X
X
Some regions indicated the designation of a minority and low-income community
did not afford extra actions beyond the specific environmental laws and
regulations. For example, Region 5's Interim Environmental Policy clearly
states: "It is important to note that the identification of a disproportionately high
and adverse human health or environmental effect on a minority or low-income
population does not preclude a proposed Agency action from going forward."
At the Headquarters level, OECA adopted environmental justice as a performance
priority for Fiscal Year 2004. EPA's Chief Financial Officer advised that regions
should: "identify EJ communities or areas which display disproportionately high
and adverse, human health or environmental effects on minority and low-income
populations. Using this information, Regions will be expected to adjust their
inspection and investigation targeting to begin to address the risks or threats."
Because of the variations in how a minority and low-income community is
defined by regions, some communities may benefit more from this OECA
national priority.
25
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The August 9, 2001, memorandum from Administrator Whitman made integration
of environmental justice into States' Performance Partnership Agreements and
Performance Partnership Grants a priority. In response, some regions started
developing Performance Partnership Agreement and Grant language containing
environmental justice concepts with their States, but others have not. A regional
senior manager advised it was difficult to require States to incorporate
environmental justice concepts into their State Performance Partnership
Agreements when EPA is not clear on how to define a minority and low-income
community. Regional officials have suggested that the Office of Environmental
Justice develop model language to ensure consistency Agency-wide.
Conclusion
The various methods used by the Regions to address environmental justice can be
traced to the Agency's inability to provide a clear and consistent definition of a
minority and low-income community. This has resulted in the expenditure of
limited resources and inconsistent applications across EPA. These variations
have resulted in the actions provided to a minority and low-income citizen under
Executive Order 12898 being dependent not only on income and racial status but
the EPA region in which the person resides. Without a consistent, systematic
approach to identifying communities that are minority, low-income, and
disproportionately impacted, EPA cannot provide assurances that the Federal
actions designed by Executive Order 12898 have been consistently applied.
Recommendations
We recommend that the Acting EPA Deputy Administrator:
3-1. Develop a standard strategy that limits variations relating to GIS
applications, including use of census information, determination of
minority status, income threshold, and all other criteria necessary to
provide regions with information for environmental justice decisions.
3-2. Require that the selected strategy for determining an environmental justice
community is consistent for all EPA program and regional offices.
3-3. Develop a clear and comprehensive policy on actions that will benefit and
protect identified minority and low-income communities and strive to
include in States' Performance Partnership Agreements and Performance
Partnership Grants.
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Agency Comments and OIG Evaluation
The Agency disagreed with the recommendations presented in this chapter. The
Agency claimed OIG's environmental justice assessment methodology for
identifying and addressing minority and low-income populations was flawed. In
the Agency's opinion, the decisionmaking processes are predicated upon the
options for action or inaction that the Agency may be considering in a given
situation, and any action must be based on the applicable statute and
implementing regulations, as appropriate. The Agency said "this allows the
Agency to move beyond the dead-end questions relating to what is or is not an
'environmental justice community,' who are or who are not 'environmental
justice individuals,' what are or are not 'potential environmental justice
communities,' or what are or are not 'environmental justice potential areas of
concern.' "
While the Agency believes these may be dead end questions, in our opinion it is
impossible to carry out the intent of the Executive Order, which is to focus on
minority and low-income populations, without first answering these questions.
We believe the Agency has been remiss in its responsibilities to carry out the
intent of the Executive Order and believe our recommendations are valid.
The Agency's complete written response to our draft report and our detailed
evaluation of that response are contained in Appendices D and E, respectively.
27
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28
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Appendix A
February 11, 1994
EXECUTIVE ORDER
FEDERAL ACTIONS TO ADDRESS ENVIRONMENTAL JUSTICE IN MINORITY
POPULATIONS AND LOW-INCOME POPULATIONS
By the authority vested in me as President by the Constitution and the laws of the United States of
America, it is hereby ordered as follows:
Section 1-1. IMPLEMENTATION.
1-101. Agency Responsibilities. To the greatest extent practicable and permitted by law, and consistent
with the principles set forth In the report on the National Performance Review, each Federal agency shall make
achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately
high and adverse human health or environmental effects of its programs, policies, and activities on minority
populations and low-income populations in the United States and its territories and possessions, the District of
Columbia, the Commonwealth of Puerto Rico, and the Commonwealth of the Marian islands.
1-102. Creation of an Interagency Working Group on EnvironmentalJustice. (a) Within 3
months of the date of this order, the Administrator of the Environmental Protection Agency
("Administrator") or the Administrator's designee shall convene an Interagency Federal Working Group
on Environmental Justice ("Working- Group"). The Working Group shall comprise the heads of the
following executive agencies and offices, or their designees: (a)Department of Defense; (b) Department
of Health and Human Services; (c)Department of Housing and Urban Development; (d) Department of
Labor; (e) Department of Agriculture; (f) Department of Transportation; (g) Department of Justice; (h)
Department of the Interior; (i) Department of Commerce; (j) Department of Energy; (k) Environmental
Protection Agency; (1) Office of Management and Budget; (m) Office of Science and Technology Policy;
(n) Office of the Deputy Assistant to the President for Environmental Policy; (o) Office of the Assistant to
the President for Domestic Policy; (p) National Economic Council; (q) Council of Economic Advisers;
and (r) such other Government officials as the President may designate. The Working Group shall report
to the President through the Deputy Assistant to the President for Environmental Policy and the Assistant
to the President for Domestic Policy.
29
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(b)The Working Group shall:
(1) provide guidance to Federal agencies on criteria for identifying disproportionately
high and adverse human health or environmental effects on minority populations and low-income
populations;
(2) coordinate with, provide guidance to, and serve as a clearinghouse for, each Federal
agency as it develops an environmental justice strategy as required by section 1-103 of this order,
in order to ensure that the administration, interpretation and enforcement of programs, activities
and policies are undertaken in a consistent manner;
(3) assist in coordinating research by, and stimulating cooperation among, the
Environmental Protection Agency, the Department of Health and Human Services, the
Department of Housing and Urban Development, and other agencies conducting research or other
activities in accordance wit section 3-3 of this order;
(4) assist in coordinating data collection, required by this order;
(5) examine existing data and studies on environmental justice;
(6) hold public meetings at required in section 5-502(d) of this order; and
(7) develop interagency model projects on environmental justice that evidence cooperation among
Federal agencies.
1-103. Development of Agency's Strategies.
(a) Except as provided in section 6-605 of this order, each Federal agency shall develop an
agency-wide environmental justice strategy, as set forth in subsections (b) - (e) of this section that
identifies and addresses disproportionately high and adverse human health or environmental effects of its
programs, policies, and activities on minority populations and low-income populations. The
environmental justice strategy shall list programs, policies, planning and public participation processes,
enforcement, and/or rulemakings related to human health or the environment that should be revised to, at
a minimum: (1) promote enforcement of all health and environmental statutes in areas with minority
populations and low-income populations: (2) ensure greater public participation; (3) improve research and
data collection relating to the health of and environment of minority populations and low-income
populations; and (4) identify differential patterns of consumption of natural resources among minority
populations and low-income populations. In addition, the environmental justice strategy shall include,
where appropriate, a timetable for undertaking identified revisions and consideration of economic and
social implications of the revisions.
(b) Within 4 months of the date of this order, each Federal agency shall identify an internal
administrative process for developing its environmental justice strategy, and shall inform the Working
Group of the process.
(c) Within 6 months of the date of this order, each Federal agency shall provide the Working
Group with an outline of its proposed environmental justice strategy.
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(d) Within 10 months of the date of this order, each Federal agency shall provide the Working
Group with its proposed environmental justice strategy.
(e) Within 12 months of the date of this order, each Federal agency shall finalize its
environmental justice strategy and provide a copy and written description of its strategy to the Working
Group. During the 12 month period from the date of this order, each Federal agency, as part of its
environmental justice strategy, shell identify several specific projects that can be promptly undertaken to
address particular concerns identified during the development of the proposed environmental justice
strategy, and a schedule for implementing those projects.
(f) Within 24 months of the date of this order, each Federal agency shall report to the Working
Group on its progress in implementing its agency-wide environmental justice strategy.
(g) Federal agencies shall provide additional periodic reports to the Working Group as requested
by the Working Group.
1-104. Reports to The President. Within 14 months of the date of this order, the Working Group
shall submit to the President, through the Office of the Deputy Assistant to the President for
Environmental Policy and the Office of the Assistant to the President for Domestic Policy, a report that
describes the implementation of this order, and includes the final environmental justice strategies
described in section 1-103 (e) of this order.
Sec. 2-2. FEDERAL AGENCY RESPONSIBILITIES FOR FEDERAL PROGRAMS.
Each Federal agency shall conduct its programs, policies, and activities that substantially affect human
health or the environment, in a manner that ensures that such programs, policies, and activities do not
have the effect of excluding persons (including populations) from participation in, denying persons
(including populations) the benefits of, or subjecting persons (including populations) to discrimination
under, such, programs, policies, and activities, because of their race, Color, or national origin.
Sec. 3 -3. RESEARCH, DATA COLLECTION, AND ANALYSIS
3-301. Human Health and Environmental Research and Analysis.
(a) Environmental human health research, whenever practicable and appropriate, shall include
diverse segments of the population in epidemiological and clinical studies, including segments at high
risk from environmental hazards, such as minority populations, low-income populations and workers who
may be exposed to, substantial environmental hazards.
(b) Environmental human health analyses, whenever practicable and appropriate, shall identify
multiple and cumulative exposures.
(c) Federal agencies shall provide minority populations and low-income populations the
opportunity to comment on the development and design of research strategies undertaken pursuant to this
order.
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3-302. Human Health and Environmental Data Collection and Analysis To the extent permitted
by existing law, including the Privacy Act, as amended (5 U.S.C. section 552a):
(a) each federal agency, whenever practicable and appropriate, shall collect, maintain, and
analyze information assessing and comparing environmental and human health risks borne by populations
identified by race, national origin, or income. To the extent practical and appropriate, Federal agencies
shall use this information to determine whether their programs, policies, and activities have
disproportionately high and adverse human health or environmental effects on minority populations and
low-income populations;
(b) In connection with the development and implementation of agency strategies in section 1-103
of this order, each Federal agency, whenever practicable and appropriate, shall collect, maintain and
analyze information on the race, national origin, income level, and other readily accessible and
appropriate information for areas surrounding facilities or sites expected to have substantial
environmental, human health, or economic effect on the surrounding populations, when such facilities or
sites become the subject of a substantial Federal environmental administrative or judicial action. Such
information shall be made available to the public unless prohibited by law; and
(c) Each Federal agency, whenever practicable and appropriate, shall collect, maintain, and
analyze information on the race, national origin, income level, and other readily accessible and
appropriate information for areas surrounding Federal facilities that are: (1) subject to the reporting
requirements under the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. section
11001-11050 as mandated in Executive Order No. 12856; and (2) expected to have a substantial
environmental, human health, or economic effect on surrounding populations. Such information shall be
made available to the public unless prohibited by law.
(d) In carrying out the responsibilities in this section, each Federal agency, whenever practicable
and appropriate, shall share information and eliminate unnecessary duplication of efforts through the use
of existing data systems and cooperative agreements among Federal agencies and with State, local, and
tribal governments.
Sec. 4-4. SUBSISTENCE CONSUMPTION OF FISH AND WILDLIFE.
4401. Consumption Patterns. In order to assist in identifying the need for ensuring protection of
populations with differential patterns of subsistence consumption offish and wildlife, Federal agencies,
whenever practicable and appropriate, shall collect, maintain, and analyze information on the
consumption patterns of populations who principally rely on fish and/or wildlife for subsistence. Federal
agencies shall communicate to the public the risks of those consumption patterns.
4402. Guidance. Federal agencies, whenever practicable and appropriate, shall work in a
coordinated manner to publish guidance reflecting the latest scientific information available concerning
methods for evaluating the human health risks associated with the consumption of pollutant-bearing fish
or wildlife. Agencies shall consider such guidance in developing their policies and rules.
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Sec. 5-5. PUBLIC PARTICIPATION AND ACCESS TO INFORMATION
(a) The public may submit recommendations to Federal agencies relating to the incorporation of
environmental justice principles into Federal agency programs or policies. Each Federal agency shall
convey such recommendations to the Working Group.
(b) Each Federal agency may, whenever practicable and appropriate, translate crucial public
documents, notices, and hearings relating to human health or the environment for limited English
speaking populations.
(c) Each Federal agency shall work to ensure that public documents, notices, and hearings relating
to human health or the environment are concise, understandable, and readily accessible to the public.
(d) The Working Group shall hold public meetings, as appropriate, for the purpose of fact-
finding, receiving public comments, and conducting inquiries concerning environmental justice. The
Working Group shall prepare for public review a summary of the comments and recommendations
discussed at the public meetings.
SEC. 6-6. GENERAL PROVISIONS.
6-601. Responsibility for Agency Implementation. The head of each Federal agency shall be
responsible for ensuring compliance with this order. Each Federal agency shall conduct internal reviews
and take such other steps as may be necessary to monitor compliance with this order.
6-602. Executive Order No. 12250. This Executive order is intended to supplement but not
supersede Executive Order No. 12250, which requires consistent and effective implementation of various
laws prohibiting discriminatory practices in programs receiving Federal financial assistance. Noting
herein shall limit the effect or mandate of Executive Order No. 12250.
6-603. Executive Order No. 12875. This Executive order is not intended to limit the effect or
mandate of Executive Order No. 12875.
6-604. Scope. For purposes of this order, Federal agency means any agency on the Working
Group, and such other agencies as may be designated by the President, that conducts any Federal program
or activity that substantially affects human health or tie environment. Independent agencies are requested
to comply with the provisions of this order.
6-605. Petitions far Exemptions. The head of a Federal agency may petition the President for an
exemption from the requirements of this order on the grounds that all or some of the petitioning agency's
programs or activities should not be subject to the requirements of this order.
6-606. Native American Programs. Each Federal agency responsibility set forth under this order
shall apply equally to Native American programs. In addition the Department of the Interior, in
coordination with the Working Group, and, after consultation with tribal leaders, shall coordinate steps to
be taken pursuant to this order that address Federally- recognized Indian Tribes.
6-607. Costs. Unless otherwise provided by law, Federal agencies shall assume the financial costs
of complying with this order.
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6-608. General. Federal agencies shall implement this order consistent with, and to the extent
permitted by, existing law.
6-609. Judicial Review. This order is intended only to improve the internal management of the
executive branch and is not intended to, nor does it create any right, benefit, or trust responsibility,
substantive or procedural, enforceable at law or equity by a party against the United States, its agencies,
its officers, or any person. This order shall not be construed to create any right to judicial review
involving the compliance or noncompliance of the United States, its agencies, its officers, or any other
person with this order.
William J. Clinton
THE WHITE HOUSE,
February 11, 1994.
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Appendix B
August 9,2001
MEMORANDUM EPA MAIL
SUBJECT: EPA's Commitment to Environmental Justice
TO: Assistant Administrators
General Counsel
Inspector General
Chief Financial Officer
Associate Administrators
Regional Administrators
Office Directors
The Environmental Protection Agency has a firm commitment to the issue of environmental
justice and its integration into all programs, policies, and activities, consistent with existing
environmental laws and their implementing regulations.
The Agency defines environmental justice to mean the fair treatment of people of all races,
cultures, and incomes with respect to the development, implementation, and enforcement of
environmental laws and policies, and their meaningful involvement in the decision making processes of
the government. Among other things, this requires the following:
(a) Conducting our programs, policies, and activities that substantially affect human health and
the environment in a manner that ensures the fair treatment of all people, including minority
populations and/or low-income populations;
(b) Ensuring equal enforcement of protective environmental laws for all people, including
minority populations and/or low-income populations;
(c) Ensuring greater public participation in the Agency's development and implementation of
environmental regulations and policies; and
(d) Improving research and data collection for Agency programs relating to the health of, and
the environment of all people, including minority populations and/or low-income populations.
In sum, environmental justice is the goal to be achieved for all communities and persons across
this Nation. Environmental justice is achieved when everyone, regardless of race, culture, or income,
enjoys the same degree of protection from environmental and health hazards and equal access to the
decision-making process to have a healthy environment in which to live, learn, and work.
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The purpose of this memorandum is to ensure your continued support and commitment in
administering environmental laws and their implementing regulations to assure that environmental justice
is, in fact, secured for all communities and persons. Environmental statutes provide many opportunities to
address environmental risks and hazards in minority communities and/or low-income communities.
Application of these existing statutory provisions is an important part of this Agency's effort to prevent
those communities from being subject to disproportionately high and adverse impacts, and environmental
effects.
In the National Environmental Policy Act of 1969 (NEPA), Congress could not have been any
clearer when it stated that it shall be the continuing responsibility of the Federal government to assure for
all Americans "safe, healthful, productive and aesthetically and culturally pleasing surroundings."
Integration of environmental justice into the programs, policies, and activities via
Headquarters/Regional Office Memoranda of Agreements and Regional Office/State
Performance Partnership Agreements is an Agency priority. The Director of the Office of
Environmental Justice, Barry E. Hill, and his staff are available to assist you. Barry Hill can be reached at
(202)564-2515.
I am positive that each of you will join me in working to secure environmental justice for all
communities.
/signed/
Christine Todd Whitman
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Appendix C
Details on Scope and Methodology
We performed our evaluation in accordance with Government Auditing Standards, issued by the
Comptroller General of the United States. Our preliminary assessment included reviews and
interviews with EPA's Offices of Air and Radiation, Enforcement and Compliance Assurance,
and the 10 regional offices, as well as three States that have air credit trading programs.
Field work for this phase of the review was performed between December 2002 and September
2003. The evaluation included Regions 1, 5, 6, 9, and Headquarters. These regions were
selected based on preliminary data that indicated that States within these regions had volatile
organic compounds trading programs. These trading programs were selected because of the
significant health problems associated with these compounds.
We conducted interviews with the Director of the Office of Environmental Justice, Deputy
Regional Administrators in the above cited regions, directors from various media offices within
the regions we visited, and Environmental Justice Coordinators at the selected regions and at
Headquarters.
Included in our evaluation were reviews and analyses of the following documents for the
purpose of gaining background information on environmental justice and how it is being
implemented in the regions and integrated into day-to-day program activities:
• Executive Order 12898, "Federal Action to Address Environmental Justice in
Minority Populations and Low-Income Populations," February 11, 1994
• Report issued by EPA Environmental Equity Workgroup to the Administrator,
"Environmental Equity - Reducing Risk for all Communities," June 1992
The 1995 Environmental Justice Strategy
• The 1996 Implementation Plan
• The Toolkit for Assessing Allegations of Environmental Injustice (Working Draft)
• National Academy of Public Administration Report, "Environmental Justice In EPA
Permitting: Reducing Pollution in High Risk Communities is Integral to the Agency's
Mission," December 2001
• Office of Environmental Justice Annual Reports (1993, 1994, 1996, 1998, and 2000)
• The 2002 Action Plans for Office of Air and Radiation and all regions
• Various articles and studies on environmental justice
We attended an environmental justice training session held in Region 5 to evaluate the topics
covered and to determine the comprehensiveness of the training.
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We consulted with OIG's Counsel on questions of interpretation on provisions contained in the
Executive Order.
We contracted for the services of a GIS consultant. This consultant prepared maps of potential
environmental justice areas using the methodologies of Regions 1, 5, and 6. The three
methodologies were mapped on the City of Worcester, Massachusetts. These maps were used to
demonstrate the effects on communities using the different attributes that identify a potential
environmental justice area.
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Appendix D
EPA Response to Draft Report
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, n.c. 20*60
SUBJECT:
FROM:
TO:
Agency Reaponacs to Proposed Recommendations Provided in the OIG
Draft Evaluation Report - No. 2002-000509 L-ntilfed, "EPA Needs to
Consistently Implement En virootnejatal Justice into its Mission"
John Peter
Assistant AdmipfsrratgS Office of Enforcement and Compliance Assurance
Kwai Chan
Assistant Inspector General for Program Evaluation
The purpose of ihis memorandum is to provide the U, S. Environmental Protection Agency's
(EPA or the Agency) responses to the proposed recommendations offered by the Office of the
Inspector Qenenal (OIG) IE the draft evaluation report entitled, "EPA Needs to Consistently
Implement Environmental Justice into its Mission" (No. 2002-000509)
The Agency is tununmed to fully integrating environmental justice into all EPA programs.
policies, and activities, consistent with environmental statutes and their implementing regulation?.
EPA=5 en viTOtuneiMrt I justice program is comprehensive and reflects thoughtful stwfsgic planning
and implementation by the Office of trwiicnmental Justice, the National Program Managers, and
the Regions. The Agency is pleased with iKe direction of the program and the progress that has been
made thus far.
Although the Agency strongly disagrees with mar,y of the majoi assertions made in the draft
evaluation report, we appreciate this opportunity to demonstrate how EPA is complying vrith (he
spirit and the letter of Executive Order 12898, "Federal Actions to Address Environmental Justice in
Minoriiy Populations and Low- Income Populations."
As a general matter, the Agency disagrees with a central premise of the draft evaluation
Jiepott, namely that Executive Order J 2898, "requires (lie Agency to identify and address specific
eommufiitiss and to define disproportionate impact." (p. 9) Executive Order 12898, rather, requires
EPA to review all of its programs, policies and acrivities in order to identify and address the
"disproportionately high and adverse human health or environmental effects. ...on minority
populations and low-income populations.'' This mandate K bused on the plain language of the
Executive Order and is supported by the accompanying Presidential Memorandum. The Agency.
therefore, takes exception la the OJO's assertion that EPA lias "jreinrerpreted'' the Executive Order's
mandate.
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The Agency's responses to the OIG's proposed recommendations are as follows:
OIG Proposed Recommendation 2-1: Issue a memorandum which reaffirms that Executive Order 12898 is the
Agency's priority and that minority and low-income populations which are disproportionately impacted will be the
beneficiaries of this executive order.
Agency Response: The Agency issued a memorandum on August 9, 2001, in support of the purpose of the
Executive Order that unequivocally expressed its commitment to integrating environmental justice into all EPA
programs, policies, and activities. Thus, the Agency does not concur with this proposed recommendation for the
following reasons.
The proposed recommendation is based on the mistaken premise that Executive Order 12898 requires "the
Agency to identify and address specific communities and to define disproportionately impacted." (p. 9) The Agency
disagrees with this recommendation because it is contrary to the plain language and intent of the Executive Order. In
support of this recommendation, the OIG cites the following language:
"To the greatest extent practicable and permitted by law, and consistent with the principles set forth in the
report on the National Performance Review, each Federal agency shall make achieving environmental justice
part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of its programs, policies and activities on minority populations and low-
income populations in the United States and its territories and possessions...." (OIG's emphasis)
By emphasizing those 7 words (identifying....addressing....disproportionately.... minority populations....low-
income populations"), the OIG concludes that the Executive Order requires the Agency to develop a national standard
or threshold for defining and/or determining a minority or low-income community. According to the Director of the
Office of Environmental Justice, who represented the American Bar Association throughout the development and
discussions with the White House Counsel's Office and the Council on Environmental Quality pertaining to
Executive Order 12898, this is a strained interpretation of the language, which appears to rest on the word
"disproportionately," which was not the intent of the drafters. Following ordinary rules of grammar, the word
"disproportionately" modifies the language that immediately follows it. Moreover, grammatically, the phrase
"identify and address" does not modify "minority populations and low-income populations" based upon normal
sentence structure. Rather, the language of the Executive Order instructs the Agency to identify and address the
"disproportionately high and adverse human health or environmental effects of it programs, policies, and activities."
This language requires EPA to review all of its programs, policies, and activities in order to identify and address the
"disproportionately high and adverse human health or environmental effects....on minority populations and low-
income populations." In sum, the Executive Order requires the Agency to conduct internal reviews of its programs,
policies, and activities instead of seeking to establish a "brightline" for identifying an "environmental justice
community." This is a commonsense interpretation of the language of the Executive Order and not a new
interpretation as proffered by the OIG.
Second, the Executive Order does not require the Agency to define "disproportionately impacted" as asserted
by the OIG. Indeed, the phrase "disproportionately impacted" is not in the Executive Order. However, the concept is
useful for conducting an environmental justice assessment, and the Agency believes that this phrase should be used in
reference to certain communities that may be exposed disproportionately to environmental harms and risks and suffer
adverse impacts as contemplated by the Executive Order. The Agency has embraced this interpretation, and is
seeking advice and recommendations from the National Environmental Justice Advisory Council (NEJAC) at its
upcoming meeting (April 13-16, 2004) in New Orleans, Louisiana on how to determine/measure cumulative
risks/cumulative impacts. The specific questions that have been developed by the Office of Environmental Justice,
the Office of Research and Development, and the Office of Air and Radiation, and formally posed on April 16, 2003,
to the NEJAC and its Workgroup are as follows:
"(1) How should the Agency proactively address the issue of using the various existing statutory
authorities and their implementing regulations relating to cumulative risks which were identified by
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the Environmental Law Institute in their November 2001 research report entitled, "Opportunities for
Advancing Environmental Justice: An Analysis of U.S. Statutory Authorities"?
"(2) What factors should the Agency consider when conducting a cumulative risk assessment of
vulnerable minority, indigenous, and/or low-income communities disproportionately exposed to
environmental harms and risks, and cumulative impacts? These may include, but should not be
limited to: (a) multiple durations, pathways, sources, or routes of exposure; (b) multiple effects or
impacts; (c) nonconventional stressors or risk factors (e.g., lifestyles, access to health care); and (d)
quantification of risks. In addition, what short-term actions should the Agency take to ensure that it
can proactively respond to community concerns about the above-stated factors, in parallel with
Agency efforts to develop adequate scientific methodology for conducting cumulative risk
assessments?
"(3) How should the Agency ensure that vulnerability of certain segments of the population are
incorporated into the cumulative risk assessment? In addition, what short-term actions should the
Agency take to ensure that it can proactively respond to community concerns related to
vulnerability, in parallel with Agency efforts to develop adequate scientific methodology for
incorporating this factor into cumulative risk assessments?
"(4) How can the Agency promote more effective participation by vulnerable minority, indigenous,
and /or low-income communities disproportionately exposed to environmental harms and risks, and
cumulative impacts to improve community health through cumulative risk assessment, particularly
during the planning, scoping, and problem formulation phase of a cumulative risk assessment?
"(5) How can the Agency partner with an affected community to more effectively use the results of a
cumulative risk assessment to develop appropriate intervention and prevention strategies, including
use of models of conducting cumulative risk assessment that promote communities and technical
experts working and reaching decisions together?
"In sum, in order to ensure environmental justice for all communities and tribes, what short-term and long-
term actions should the Agency take in proactively implementing the concepts contained in its Cumulative
Risk Assessment Framework (i.e., using the concepts of cumulative risk to determine: (a) disproportionate
exposure to multiple stressors; (b) the resulting cumulative impacts; and (c) developing appropriate
intervention and prevention strategies)?"
Thus, the Agency is actively seeking to clarify how the phrase "disproportionately impacted" should be interpreted
and applied at an operational level by EPA, communities, industry, academia, non-governmental organizations, and
state, local and Tribal governments.
Third, the Agency has deliberately and consistently sought to ensure that the spirit and intent of the 1994
Executive Order is adhered to. For example, former Administrator Christine Todd Whitman's August 9, 2001,
memorandum, and the Presidential Memorandum accompanying the Executive Order have almost identical language.
The former Administrator's memorandum states in pertinent part that:
"The purpose of this memorandum is to ensure your continued support and commitment in
administering environmental laws and their implementing regulations to assure that environmental
justice is. in fact, secured for all communities and persons. Environmental statutes provide many
opportunities to address environmental risks and hazards in minority communities and/or low-
income communities. Application of these existing statutory provisions is an important part of this
Agency's effort to prevent those communities from being subject to disproportionately high and
adverse impacts, and environmental effects." (Emphasis added)
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Whereas, the Presidential Memorandum states in pertinent part that:
The purpose of this separate memorandum is to underscore certain provision[s1 of existing law that
can help ensure that all communities and persons across this Nation live in a safe and healthful
environment. Environmental and civil rights statutes provide many opportunities to address
environmental hazards in minority communities and low-income communities. Application of these
existing statutory provisions is an important part of this Administration's efforts to prevent those
minority communities and low-income communities from being subject to disproportionately high
and adverse environmental effects." (Emphasis added)
Based upon the above, it is clear that the Agency has not reinterpreted the Executive Order. Rather, the
Agency seeks to ensure that all communities and persons across this Nation secure environmental justice and live in
safe and healthful environments. This does not suggest that the Agency is "de-emphasizing minority and low-income
populations" as preferred by the OIG. (p. 10) Most significantly, it is clear that both memoranda specifically indicate
the use of existing environmental laws to address environmental justice issues. As a result, the Agency has focused a
considerable amount of attention and resources to integrate environmental justice into EPA's decisionmaking
processes. The Office of Environmental Justice provided this information to the OIG reviewers at a September 24,
2002, meeting, and in response to a series of basic questions. (Attachment A, See Response No. 2)
Fourth, it should be noted that the Executive Order specifically states that:
"6-609 Judicial Review. This order is intended only to improve the internal management of the
executive branch and is not intended to, nor does it create any right, benefit or trust responsibility,
substantive or procedural, enforceable at law or equity by a party against the United States, its
agencies, its officers, or any person." (Emphasis added)
Therefore, the Agency disagrees with the OIG's assertion at p. 7 that, "EPA has not ensured on a consistent basis that
minority and low-income populations have been afforded the benefits and protections intended by the Executive
Order." No special benefits and protections have been created or conferred by the Executive Order. Thus, as stated
by the OIG at p. 10, consistent with "EPA's overall mission, as set forth in the 1997 Strategic Plan, which is to ensure
that: 'All Americans are protected from significant risks to human health and the environment where they live, learn
and work,'" the Agency firmly believes that its commonsense interpretation of the Executive Order's plain language
and its subsequent activities manifest compliance rather than non-compliance as proffered by the OIG.
In sum, issuing a memorandum which reaffirms that Executive Order 12898 is the Agency's priority and that
minority and low-income populations which are disproportionately impacted will be the beneficiaries of this
Executive Order is not necessary. The Agency's focus should be that of implementing the 1994 Executive Order, the
accompanying Presidential Memorandum, and the former Administrator's memorandum, consistent with existing
environmental laws and their implementing regulations.
OIG Proposal Recommendation 2-2: Establish specific time frames for the development of the previously
mentioned definitions, goals and measurements that will ensure that the 1994 Executive Order is complied with in
the most expeditious manner.
Agency Response: The Agency does not concur with this proposed recommendation for the following reasons.
The 1994 Executive Order required the Agency to complete a number of tasks including: (1) chairing the
Interagency Working Group; and (2) developing an Environmental Justice Strategy and submitting that document to
the President. As pointed out in the OIG draft evaluation report at p. 8, these tasks have been accomplished. Several
of the other tasks are ongoing which include: (1) engaging in human health and environmental research and analysis;
(2) engaging in human health and environmental data collection and analysis; (3) reviewing consumption patterns of
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fish and wildlife of various populations; and (4) expanding opportunities for public participation and access to
information. Additionally, the Executive Order required the Federal government to "develop interagency model
projects on environmental justice that evidence cooperation among Federal agencies." (Section 1-102 (b)(7)) As
pointed out by the OIG at p. 4, the Office of Environmental Justice serves as the lead on the Federal Interagency
Working Group, and has been the catalyst behind developing 30 interagency model projects on environmental justice.
A description of the 30 interagency model projects is available on the Office of Environmental Justice's Web site at:
http://www.epa.gov/compliance/environmentaliustice/interagencv/index.html. Accordingly, the Agency continues to
focus on implementing all aspects of the Executive Order in a coordinated and comprehensive manner. These efforts
have required collaboration across the Agency. Despite many impediments over the 12 years of the program, EPA
has made tremendous strides in integrating environmental justice into all programs, policies, and activities at EPA and
other Federal agencies, through the Office of Environmental Justice.
With respect to several of the ongoing tasks described above, the Agency, through the Office of
Environmental Justice, has sought advice and recommendations from the NEJAC pertaining to specific broad-based
public policy questions as follows:
"Advancing Environmental Justice Through Pollution Prevention" - a report developed from the
NEJAC meeting of December 9-13, 2002, in Baltimore, MD. Transmitted to EPA on July 9, 2003.
"Fish Consumption and Environmental Justice"- a report developed from the NEJAC meeting of
December 3-6, 2001, in Seattle, WA. Transmitted to EPA on November 19, 2002.
"NEJAC Report on Integration of Environmental Justice in Federal Programs" - a report developed
from the NEJAC meeting of December 11-14, 2000, in Arlington, VA. Transmitted to EPA on
June 25, 2002.
"Environmental Justice and Community-Based Health Model Discussion" - a report developed
from the NEJAC meeting of May 23-26, 2000, in Atlanta, GA. Transmitted to EPA on February 8,
2001.
"Environmental Justice in the Permitting Process" - a report developed from the NEJAC meeting of
November 30-December 2, 1999, in Arlington, VA. Transmitted to EPA on August 3, 2000.
• NEJAC's "Model Plan for Public Participation" - transmitted to EPA in February 2000.
Thus, it is clear that the Agency continues to carry out its responsibilities set forth
in the Executive Order. More importantly, the Agency continues to utilize effectively its Federal advisory committee,
and seeks advice and recommendations to specific public policy questions related to environmental justice. All of
these documents and the proceedings of the NEJAC meetings are available to the public on the Office of
Environmental Justice's Web site at:
http://www.epa.gov/compliance/resources/publications/ei/nejacj3ublications.html.
A key component of the Agency's efforts to integrate environmental justice into all policies, programs, and
activities, consistent with the Executive Order, and the former Administrator's August 9, 2001, memorandum have
been the development of comprehensive strategic Environmental Justice Actions Plans by Regional and Program
Offices. These Action Plans are based on a detailed strategic action plan template developed by the Office of
Environmental Justice in conjunction with the Environmental Justice Executive Steering Committee. Over the course
of the past 3 years, Regional and Program Offices have developed 2 sets of Environmental Justice Action Plans. In
June 12, 2003, the Office of Environmental Justice advised Deputy Regional Administrators and Deputy Assistant
Administrators that:
"The two most significant changes [from the initial template] are the : (1) conversion of the Action
Plan to a two-year cycle; and (2) development of common measures of performance to best gauge
the overall success of EPA's Environmental Justice Program. The new approach will provide
greater balance between consistency across all environmental justice efforts and flexibility in each
program."
This memorandum and the attachments were also sent to the OIG at the same time (Attachment
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B). Thus, the goals and common measures of performance for integrating environmental justice have been
established by the Office of Environmental Justice, National Program Managers and Regional Offices, consistent with
the Executive Order and the former Administrator's memorandum.
In sum, the OIG's proposed recommendation which calls for establishing specific time frames for the
development of goals and measurements is duplicative of existing goals and measurements that have been established
by the Office of Environmental Justice, and each National Program Manager and Regional Office. The Agency
continues to focus on implementing all of its responsibilities set forth in Executive Order 12898, and the former
Administrator's memorandum.
OIG Proposed Recommendation 2-3: Develop and articulate a clear vision on the Agency's approach to
environmental justice. This vision should focus on environmental justice integration and provide objectives that are
clear, precise, and focused on environmental results.
Agency Response: The Agency does not concur with this proposed recommendation for the following reasons.
First, the former Administrator's memorandum clearly spelled out the vision for the Agency's efforts to
integrate environmental justice. She specifically stated that:
"The Agency defines environmental justice to mean the fair treatment of people of all races,
cultures, and incomes with respect to the development, implementation, and enforcement of
environmental laws and policies, and their meaningful involvement in the decisionmaking processes
of government. Among other things, this requires the following:
(a) Conducting our programs, policies, and activities that substantially affect human health and the
environment in a manner that ensures the fair treatment of all people, including minority populations
and/or low-income populations:
(b) Ensuring equal enforcement of protective environmental laws for all people, including minority
populations and /or low-income populations:
(c) Ensuring greater public participation in the Agency's development and implementation of
environmental regulations and policies: and
(d) Improving research and data collection for Agency programs relating to the health of. and the
environment of all people, including minority populations and/or low-income populations.
"In sum, environmental justice is the goal to be achieved for all communities and persons across this
Nation. Environment justice is achieved when everyone, regardless of race, culture, or income,
enjoys the same degree of protection from environmental and health hazards and equal access to the
decision-making process to have a healthy environment in which to live, learn, and work."
(Emphasis added)
As a direct result of this clearly articulated vision, the Regional and Program Offices developed their
Environmental Justice Action Plans with goals and measures that seek to integrate environmental justice into the
fabric of EPA which focus on environmental results. For example, in its FY2004-2005 Action Plan, for "Objective 1.
Risk Reduction and Protection of Environment and/or Public Health," Region 1 intends to continue its initiative to
eliminate childhood lead poisoning in Dorchester and Roxbury, which are described as "areas of concern." Region
1's output is to ensure that there are no new cases of elevated blood lead levels higher than 20mg/dl and an annual
percentage decrease each year. As another example, in its FY2004-5 Action Plan, Region 8 intends, as its stated
objective, to reduce the risk of exposure to environmental hazards to migrant farm workers by conducting Worker
Protection Standard inspections. Region 8 seeks to reduce the exposure of workers at risk from drinking nitrate -
laden water. It is clear that Regions 1 and 8, and all other Regional Offices are focused on achieving environmental
results in their comprehensive strategic Action Plans.
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All of this information related to the Action Plans is available to the public on the Office of Environmental
Justice's Web site at: http://www.epa.gov/compliance/resources/reports/actionplans/ei/index.html.
In sum, the OIG's proposed recommendation for the Agency to develop and articulate a clear vision that provides
objectives that are clear, precise, and focused on environmental results has already been done. The Agency's focus
over the next several years will be implementing all Regional Office and Program Office comprehensive strategic
Action Plans.
OIG Proposed Recommendation 2-4: Develop a comprehensive strategic plan for environmental justice. The plan
should include a comprehensive mission statement that discusses, among other things, the Agency's major functions
and operations, a set of outcome-related goals and objectives.
Agency Response: The Agency does not concur with this proposed recommendation for the following reasons.
First, as pointed out by the OIG at p. 3, "In 1995, EPA issued its Environmental Justice Strategy to
implement the Executive Order. The stated purpose of the Strategy was to ensure thejntegration of environmental
justice into the Agency's programs, policies, and activities consistent with the Executive Order. In August 2001, EPA
Administrator Christine Todd Whitman issued a memorandum reaffirming EPA's commitment to achieving
environmental justice." The OIG failed to mention, however, that the Agency also issued in April 1996 its
"Environmental Justice Implementation Plan" which supplemented the Strategy by providing timetables and realistic
measures of success.
In the March 25, 2003, response to the following OIG follow-up question — What is the status of the 1996
Environmental Justice Implementation Plan? Have the goals in the plan been met? If not, what are the target dates
for completion? — the Office of Environmental Justice stated that:
"The 16 specific goals of the Environmental Justice Implementation Plan were written as ongoing
and aspirational goals. However, the Implementation Plan does identify specific 'Key Efforts....
"As provided in the Implementation Plan, the lead Office or Region designated for each Key Effort
was to measure the progress made, and report its success to the Office of Environmental Justice.
The annual and biennial reports covering the years for which [the] Implementation Plan was in
effect, and which are based on submissions from the headquarters and regional offices, are available
for review online at the following:
http://www.epa.gov/compliance/resources/publications/ei/ei annual project reports.html."
(Attachment N)
In short, the Agency continues to focus on environmental justice integration as reflected in the Regional and
Program Office Action Plans. Therefore, the need to develop and issue a new comprehensive strategic plan is not
warranted since, "The whole is equal to the sum of its parts," and the Template of the Action Plans provides the
necessary coordination.
As stated previously, the Agency has already embarked on a comprehensive strategic planfor integrating
environmental justice by requiring all Regional and Program Offices to develop Environmental Justice Action Plans
and implementing what is contained in those plans. The progress in integrating environmental justice will be
reflected in the FY2003 Progress Reports, which are due to the Office of Environmental Justice in February 2004.
In sum, this proposed recommendation is unnecessary because it is duplicative of existing efforts under
Regional and Program Office Environmental Justice Action Plans.
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OIG Proposed Recommendation 2-5: Provide the regions and program offices a standard and consistent definition
for an environmental justice area, with instructions on how the Agency will implement and operationalize
environmental justice into the Agency's daily activities. This could be done through issuing guidance or a policy
statement from the Administrator.
Agency Response: The Agency does not concur with this proposed recommendation for the following reasons.
First, the Agency vigorously objects to the "outline of how the environmental project should work" as
reflected in Figure 1.1 at p. 3. The OIG's flowchart indicates that only after identifying minority communities or low-
income communities will the Agency take action. The EPA is an environmental regulatory agency that administers
environmental laws to protect human health and the environment for all communities, and its decisions should not be
based on attempting to transpose a civil rights paradigm into an environmental law paradigm. If this approach were
accepted as the way for the Agency to do business, the following questions arise because the OIG is proposing to use
race, income or economic status as the initial basis for Agency action or inaction:
What if the minority community has been identified as having 26.5 percent minorities in the
particular community and 26.5 percent is the "threshold" or "brightline" established by EPA for
defining what is or what is not a so-called "environmental justice community"?
What happens if another community has 26.4 percent minorities?
Does this mean that the Agency will not expend any resources because the "threshold" or
"brightline" has not been reached?
Do the environmental laws and their implementing regulations that the Agency administers provide
EPA with the authority to make decisions on the basis of race or economic status alone?
This proposed OIG approach, although quite simple and easy to apply, strains credulity, and is also not practicable.
Environmental laws and their implementing regulations are not crafted with this oversimplified approach to
administering those laws that are designed for the protection of the general public. Both the Presidential
Memorandum and the former Administrator's memorandum spoke in terms of using existing environmental laws and
their implementing regulations to address the public health and environmental concerns/issues for all communities,
including minority and low-income communities. Neither of those documents suggests or requires that there must be
any arbitrary number/threshold/brightline that EPA needs to develop which would cause the Agency to act or not to
act depending solely on the racial makeup or economic status of the residents of a community. Such demographic
data alone should not control or determine Agency action or inaction.
Second, of course, the race or economic status of the residents of a community are important factors in
identifying potential risks or harms, but this demographic information are not the only factors that the Agency needs
to consider and analyze before making any decision to act or not to act, nor does the Agency have the statutory
authority to make decisions based on race and income demographic data alone. The Agency's draft "Toolkit for
Assessing Potential Allegations of Environmental Injustice" (which is currently undergoing a public comment period
until March 4, 2004) points out that other information/data are equally important (e.g., Social, Health, Economic and
Environmental Indicators, in addition to Public Participation and Access to Information). (See Attachment C) The
draft Toolkit provides tools that EPA staff can use in addressing a broad spectrum of environmental justice issues.
Specifically, the draft Toolkit presents an approach for conducting a preliminary assessment of such potential
allegations. It was never intended to provide the overly simplistic "brightline" since environmental justice as a major
public policy issue is much more than mere demographic information.
Although the comment period has not ended, the Office of Environmental Justice has not received any
negative comments thus far regarding the draft Toolkit. One of the commenters is Wilma Subra who is not only a
current member of the NEJAC's Executive Council but also serves as the Vice Chair of EPA's National Advisory
Council on Environmental Policy and Technology. More importantly, she is a representative of the Louisiana
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Environmental Action Network, an environmental justice organization. On October 9, 2003, she sent an e-mail which
states as follows:
"Thank you for the opportunity to review the EJ Toolkit for EPA employees. The document sets
forth an excellent system for identifying and responding to environmental injustice situations. The
incorporations of social and economic indicators in addition to environmental and health indicators
is critical to evaluating injustices in EJ communities.
"EPA is to be commended for committing the resources necessary to compiling the toolkit. Through
the implementations of the toolkit, EJ communities will benefit from fewer insults." (Attachment D)
Consistent with the Agency's strategy, Vice Chair Wilma Subra's e-mail regarding the draft Toolkit
indicates, in her view, that race and income demographic information alone (which is part of the Social Indicators)
should not be the sole determining factors in conducting an environmental justice assessment.
In sum, the OIG's proposed recommendation that EPA should provide a threshold number or "brightline" for
defining/determining what is an "environmental justice community" misses the point entirely. There is, indeed, many
factors/information/data that the Agency must consider in the comprehensive decisionmaking processes that do not
begin or rest solely on the demographic data pertaining to any particular community.
OIG Proposed Recommendation 2-6: Ensure that the comprehensive training program currently under
development includes standard and consistent definitions of the key environmental justice concepts (i.e., low-income,
minority, disproportionately impacted) and instructions for implementation.
Agency Response: The Agency concurs with this proposed recommendation in part while, at the same time, does not
concur with certain aspects for the following reasons.
First, the Agency, with the Office of Environmental Justice as the lead, has a comprehensive environmental
justice training program which includes the highly acclaimed "Environmental Justice Fundamentals Workshop."
Information regarding the Workshop is available on the Office of Environmental Justice's Web site at:
http://www.epa. gov/compliance/training/index.html. The Office of Environmental Justice also serves as the lead for
developing environmental justice training for permit writers in the Clean Air Act, Clean Water Act, and Resource
Conservation and Recovery Act permitting programs. Moreover, the Office of Environmental Justice serves as the
lead for the inspector training for the Office of Enforcement and Compliance Assurance. Finally, the Office of
Environmental Justice is currently assisting other offices in developing environmental justice training, e.g., the Office
of Pesticides and Toxic Substances; the Office of Water; the Office of International Affairs; and the Office of
Enforcement and Compliance Assurance. The Agency has demonstrated its commitment to a comprehensive training
program, and believes that the greater number of EPA employees who receive training will help to integrate
environmental justice into all programs, policies, and activities.
Second, for the reasons stated previously, the Agency does not believe that "standard and consistent
definitions of the key environmental justice concepts (i.e., low-income, minority, disproportionately impacted) and
instructions for implementation" are needed nor warranted. The Agency categorically rejects the OIG's assertion at p.
12 that environmental justice "training has had limited success" and that "The program's lack of definition of terms
and inconsistent training contributed to the lack of success." In fact, to the contrary, the environmental justice
training has been quite successful given participant evaluations.
The Fundamentals of Environmental Justice Workshop, for example, has trained over 2,500 people across the
country. The Fundamentals Workshops conducted at Headquarters by the Office of Environmental Justice and the
Office of Air and Radiation have received an overall evaluation score of 9.6 out of a possible 10. The Fundamentals
Workshop has received the National Enforcement Training Institute's highest ratings. There have also been over 150
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people who have participated in the " Train-the-Trainer" Workshop with participants from Federal, state and local
governments, academia, business and industry, and grassroots organizations.
The following is a very small sample of quotes and remarks taken directly from the evaluations of the participants
from both workshops:
"Fundamentals Workshop" comments:
• "All of the instructors were very knowledgeable on the information they presented. This course was an eye
opener and I suggest everyone at EPA take it." Clifton Townsend, Office of Water.
• "Very educational and informative which created an awareness in issues and concerns to all of us. I will
think environmental justice in my work as well as in my community. I will cultivate the values of
environmental justice to others." Abdallah Khasawinah, Office of Pollution Prevention.
• "I really liked the variety of learning modules used in the course including the variety of speakers. I also
liked the open and relaxed atmosphere created and maintained throughout the course. This is a great
course." Carolyn Scott Office of Pollution Prevention and Toxic Substances.
• "This environmental justice workshop has opened my eyes to the injustices that could be directly attributed
to the decisions I make within my organization, as a result I want to learn more and become more involved."
Tawanda Spears, Office of Pollution Prevention.
• "Great job on a complex and sometimes controversial topic." Shrabhi Shah, Office of Water.
• "I found the workshop to give me a better understanding of environmental justice. I feel more comfortable
discussing the topic of environmental justice with management and promoting it within my organization."
Elaine Johnson, Office of Pollution Prevention and Toxic Substances.
• "This was a great and essential training that should be mandatory for management and heavily encouraged
for all employees." Sabrina Johnson, Office of Air and Radiation.
• "This class was a wonderful introduction to environmental justice. I think the information gained will prove
useful to assisting me in my current job." Artensie Flowers, Office of Pollution Prevention and Toxic
Substances.
• "Thank you. This is a super course. I hope I can take the Train the Trainer course. I plan to share the course
materials within my agency." Sarah Bridges, United States Department of Agriculture.
• "This course taught me that environmental justice is many things to different people. I gained a lot of useful
information. Even though I don't work on environmental justice issues, I enjoyed the course and would
recommend it to others." Victoria Green, Office of Water.
• "I thoroughly enjoyed myself. This is hands down the best training I've ever taken since I started at EPA."
Marlisa Stewart, Region 5.
"Train-the -Trainer" Workshop comments:
• "This was an excellent course, great job." Gloria Tatum, Mississippi Department of Environmental Quality.
• "Thanks for an informative and entertaining experience." Lora Lee Schroeder, U.S. EPA.
• "Great Job, Best Training Ever." Sedar Ertep, U.S. EPA
• "Excellent Course." Michael Spring, U.S. EPA- OEI
• "Excellent course." Linda Diane Long, North Carolina Department of Environment and Natural Resources.
• "I really enjoyed this workshop." Donna Bledsoe, U.S. EPA-OSWER
• "This was fabulously presented. I both enjoyed and learned the information with ease." Dr. Soloman Pollard,
U.S. EPA.
• "I really enjoyed this course." Keera Cleare, Army Environmental Policy Institute.
• "This is the best training class/seminar I have ever experienced." Nacostia C. Ward, U.S. EPA
• "I loved this training and I look forward to working with EPA in the future." John Taylor, Southern
Organizing Committee.
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• "This was a great course. I like the diversity of participants and the learning theories." Priscilla Oliver, U.S.
EPA.
• "The entire workshop was helpful to me. I really enjoyed the interaction and role play exercises." Toshia
King, U.S. EPA-OSWER.
In sum, the environmental justice training has indeed been successful without the use of a definition of an
"environmental justice community." All of the evaluation forms are available to the OIG. The Office of
Environmental Justice understands that it will, however, take a number of years to quantify the impact of the
environmental justice training on the day-to-day work of EPA employees.
OIG Proposed Recommendation 2-7: Perform a comprehensive study of program and regional offices' funding and
staffing for environmental justice to ensure that adequate resources are available to fully implement the Agency's
environmental justice plan.
Agency Response: The Agency concurs with this proposed recommendation for the following reasons.
On June 12, 2002, the Office of Environmental Justice provided the Regions and Program Offices with it
comprehensive "Suggestions On Developing An Effective Environmental Justice Program." (Attachment E) Since
the Office of Environmental Justice cannot dictate to any office how its limited resources should be expended, the
intent of the document was to provide the Regions and Program Offices with the Office's perceptions regarding the
basic components of an effective environmental justice program. Each Regional and Program Office has been
advised to implement its program based on this guidance to more fully determine the nature and extent of their
environmental justice integration initiatives.
The Office of Environmental Justice retained the services of Tim Fields, Vice President of Tetra Tech EMI,
(and former Assistant Administrator of the Office of Solid Waste and Emergency Response) to help the Agency
refine the Action Plan approach and to conduct discussions with each Deputy Regional Administrator and Deputy
Assistant Administrator, and others regarding developing performance measures for their program and to prepare a
summary on those interviews (all of this information and documents have been provided to the OIG reviewers).
(Attachment Q) As a follow-up to this work and in response to the OIG recommendation, the Office of Environmental
Justice will have Tetra Tech EMI conduct a comprehensive study of Regional and Program Office funding
inconsistencies and staffing disparities for environmental justice. Once the study has been completed, the Agency
will confer with the OIG regarding the recommendations and EPA's response to those recommendations.
OIG Proposed Recommendation 2-8: Clearly define the mission of the Office of Environmental Justice and provide
Agency staff with an understanding of the roles and responsibility of the office. While doing so, assess whether the
Office of Environmental Justice, an office based on a non-traditional regulatory/statutory concept, is best located in
OECA or would be better in another organizational location.
Agency Response: The Agency does not concur with this recommendation for the following reasons.
First, the roles and responsibilities of the Office of Environmental Justice have not changed since its creation:
they have evolved over the last 12 years because of the maturation of the environmental justice program at the
Agency.
In the Green Border review package to establish the Office of Environmental Equity, the predecessor office to the
Office of Environmental Justice, that cleared September 30, 1992, the activities were described as follows:
"advising the Administrator on the impacts of environmental risks, programs, regulations and
legislation on racial minority and low-income populations;
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establishing an Agency equity program, coordinating with Environmental Equity Cluster activities,
tracking implementation of Equity Workgroup and Cluster activities, and preparing periodic
progress reports;
• administering the Minority Academic Institutions (MAI) Program by implementing MAI Task
Force recommendations; and enhancing MAI interaction with the EPA through technical assistance
and technology transfer;
enhancing environmental-equity outreach, training and education programs for [the] public and
other groups through conferences, symposia and meetings;
providing minority and low-income communities with technical and financial assistance for
community/economic development activities to address environmental equity;
serving as a centralized clearinghouse and dissemination point for equity information to EPA staff
and the public;
developing environmental equity training for EPA managers and staff;
providing interagency coordination of equity programs;
supporting consultation among EPA and outside equity organizations; and
supporting key research and environmental risk reduction projects." (Attachment F)
In light of the above, the Agency disagrees with the OIG's statement that the Office of Environmental
Justice was, "[Generally regarded as a public relations office until recently...." It is true that in 1992, the issue of
environmental justice was new and controversial and people had a negative view of the issues because of the
allegations of "environmental racism." It was, therefore, necessary for the Office of Environmental Equity at that
time to focus a great deal on attention on seeking to address the negative perceptions about the issue of many
segments of the public. However, perceptions evolved as the issue also evolved. Beginning in 1998 as the current
Director assumed the position, the emphasis of the program changed, but not the role, responsibilities, and mission of
the Office. Thus, the roles and responsibilities of the Office remain the same as defined in September 1992.
Therefore, "clearly defining the mission of the Office of Environmental Justice and providing the Agency staff with
an understanding of the roles and responsibilities of the office" is unnecessary.
Second, it is true that, "the Office of Environmental Justice has become more proactive with the program and
regional offices, attempting to coordinate various efforts to integrating environmental justice" as stated by the OIG at
p. 14. That is why the Director of the Office of Environmental Justice shared with the OIG reviewers the Office's 5-
step strategy (e.g., [1] Advice and Recommendations; [2] Analysis, legal and administrative; [3] Training; [4]
Implementation; and [5] Evaluation) for integrating environmental justice into the RCRA, CAA, and CWA permitting
processes. (Attachment G) In a March 14, 2002, e-mail, the Director of the Office of Environmental Justice
explained the 5-step strategy to the Deputy Regional Administrators, and the Deputy Assistant Administrators.
(Attachment H) The Agency is just beginning the "Implementation" stage of the 5-step strategy.
The Director of the Office of Environmental Justice also shared with the OIG reviewers a 1-page document
with the heading, "Everything is connected to everything else." (Attachment I). The purpose of this document is to
attempt to depict many of the activities that the Office of Environmental Justice is engaged in under the headings: (1)
Stakeholder Communication; (2) Studies/Reports; (3) Tool Making; (4) Support; and (5) Training. Underlying each
and every one of these activities is the current primary emphasis of the Office, which is to assist the Agency in
integrating environmental justice into the fabric of EPA's day-to-day work and decisions.
Both the 5-step strategy and the "Everything is connected to everything else" diagrams have been shared
with EPA employees and the public in countless presentations. Therefore, there is or should be no misunderstanding
of the roles and responsibilities of the Office. Moreover, the Director of the Office of Environmental Justice has
provided Agency staff the Office's priorities for FY02 and FY03 via memoranda. (Attachments J and K)
Additionally, the Director of the Office of Environmental discussed the Office's strategic planning process
with the OIG reviewers. A revised draft of the current strategic plan, which is attempting to match individual
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employee's performances with various segments of the strategic plan and the Agency's new goal structure which is
still under development, is attached. (Attachment L) Therefore, the OIG's statement at p. 11 that, "While most
program offices and regions reviewed have embarked upon some form of strategic planning, the Office of
Environmental Justice has not," is, most assuredly, not accurate.
Based on the above, the Office of Environmental Justice does, in fact, have a clear mission, roles and
responsibilities. It should also be clear that no office, in government or in the private sector, remains static:
otherwise, there is no progress. The Office of Environmental Justice's emphasis on its different responsibilities have
evolved over the last 12 years based upon the facts and circumstances at the time confronting the Agency, in general,
and the Office, in particular.
Third, with respect to the location of the Office of Environmental Justice in OECA, the Agency does not
believe that moving the Office to some other AA-ship or to the Administrator's Office is needed primarily because
the reasons why OECA was chosen as the home for the Office are still valid. In the August 1995 package for the
"Request for Change in Organization Structure" it was stated that:
"The move of the Office of Environmental Justice from OARM to OECA has been under
consideration for more than 3 years. At the time that OEJ was first established, outside community
organizations and stakeholders in environmental justice issues questioned the rationale of placing a
multimedia programmatic office in an almost exclusively administrative management organization.,
The need to place OEJ in a multimedia organization has been under discussion for some time.
Therefore, this realignment is in keeping with the duties and responsibilities currently a part of the
OEJ and does not interfere with any current of future operations. OECA will not incur any changes
in its operations as a result of absorbing OEJ. The move provides an opportunity for environmental
justice, enforcement and compliance assurance to better coordinate their activities to more
effectively address the needs of impacted communities." (Emphasis added) (Attachment M)
The move of the Office of Environmental Justice to OECA came about as a result of then — Administrator Carol
Browner hiring a consultant to develop and submit an options paper for her consideration. Following is a description
of the deliberative process regarding relocation of the Office which was contained in the "Request for Change in
Organization Structure" package:
"Because outside groups played a major role in making EPA aware of the need for
environmental justice, these same groups have remained strong advocates for how the Office is
organized and have served as advisers to the Administrator on these issues. In the summer of 1994
the Administrator hired a consultant, Dr. Michael Gelobter, to evaluate EPA's approach at
incorporating environmental justice into its activities. Dr. Gelobter was requested to develop an
options paper on how the Agency could assimilate environmental justice into day-to-day activities
and specifically into which organization the Office of Environmental Justice could be placed to best
continue EPA's progression toward environmental protection for all communities. Dr. Gelobter's
report was submitted in October 1994 and has been under consideration since that time.
"Numerous discussions were held among the Administrator, Senior Managers and
members of the National Environmental Justice Advisory Council (NEJAC), a Federal Advisory
Committee to the Administrator on environmental justice issues. OECA was among the
recommended offices for OEJ placement. The Administrator announced her decision for the OEJ
realignment at the NEJAC meeting on July 25, 1995." (Emphasis added) (Attachment M)
In sum, placement of the Office of Environmental Justice in OECA was a good decision on November 6,
1994, and remains a good decision today since the goal was and is "to best continue EPA's progression toward
environmental protection for all communities" in a multi-media organization. Again, as pointed out in the Agency's
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response to the OIG's proposed recommendation 2-1, seeking "environmental protection for all communities" does
not indicate any retreat whatsoever by the Agency from addressing the issue of environmental justice or that EPA is
"de-emphasizing minority and low-income populations" as proffered by the OIG at p. 10.
OIG Proposed Recommendation 2-9: Develop a systematic approach to gathering accurate and complete
information relating to environmental justice that is usable for assessing whether progress is being made by the
program and region offices.
Agency Response: The Agency does not concur with the proposed recommendation for the following reasons.
In a March 25, 2003, e-mail to the OIG, the Director of the Office of Environmental Justice stated that, in
conjunction with the Environmental Justice Executive Steering Committee, a "Template and Instructions for Action
Plans to Integrate Environmental Justice" was developed. (Attachment N) The Template provided the 7 areas for the
Office of Environmental Justice to conduct an assessment of the Regional and Program Offices environmental justice
programs. The Template identified specific objectives that Regional and Program Offices should address which
included:
Management accountability;
Internal organizational engagement;
External stakeholder engagement;
Data collection, management, and evaluation;
Professional and organization development;
Environmental justice assessment process; and
Program evaluation.
This Template sets forth a systematic approach by which the Office of Environmental Justice gathers
accurate and complete information relating to progress being made by Regional and Program Offices in integrating
environmental justice into their decisionmaking processes. On December 18, 2002, the Office of Environmental
Justice developed specific assessment questions to be used by the Environmental Justice Executive Steering
Committee's Accountability Workgroup regarding the Action Plans. (Attachment O) These assessment questions
serve as the vehicle
for gathering accurate and complete information relating to the integration of environmental justice that is usable for
assessing whether progress is being made by the Regional and Program Offices.
OIG Proposed Recommendation 3-1: Develop a standard strategy that limits variations relating to GIS applications,
including use of census information, determination of minority status, income threshold, and all other criteria
necessary to provide regions with information for environmental justice decisions.
Agency Response: The Agency does not concur with this proposed recommendation for the following reasons.
First, the Agency believes that the OIG's conclusions pertaining to the environmental justice assessment
methodology are severely flawed. The fundamental flaw stems from the mistaken interpretation of what the
Executive Order actually requires of EPA, in particular, and the Federal government, in general. As pointed out
earlier in this memorandum, the Executive Order does not call for identifying and addressing minority populations
and low-income populations but rather "identifying and addressing....disproportionately high and adverse human
health or environmental effects of its programs, policies, and activities on minority populations and low-income
populations..." The OIG's mistaken interpretation of the language was bound to lead to flaws in the understanding of
the approach towards, and the methodology for the Agency conducting an environmental justice assessment. While
terms such as "environmental justice communities", "environmental justice individuals", "potential environmental
justice communities", "environmental justice potential areas of concern", or "environmental justice decisions" are
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expedient, it is more accurate to describe the work of the Agency as that of integrating environmental justice
considerations into the Agency's decisionsmaking processes.
The decisionmaking processes are predicated upon the options for action or inaction that the Agency may be
considering in a given situation, and any action must be based on the applicable statute and implementing regulations,
as appropriate. This allows the Agency to move beyond the dead-end questions relating to what is or is not an
"environmental justice community;" who are or who are not "environmental justice individuals;" what are or are not
"potential environmental justice communities;" or what are or are not "environmental justice potential areas of
concern." The Agency, in sum, cannot make "environmental justice decisions" in a vacuum as suggested by the OIG.
Moreover, from the perspective of using geographic information systems and geographical databases, it is more
appropriate that the Agency uses the term "geographic areas" which is much more precise than the question - begging
word "community." Many of the issues raised by the OIG have been addressed by the Environmental Justice/GIS
Workgroup and reflected in the Environmental Justice GIS Assessment Tool which is available to the public on the
Office of Environmental Justice's Web site at: http://www.epa.gov/compliance/environmentaliustice/assessment.html.
Second, the OIG determined that there was some variation in methodology from region to region. However,
there was no analysis provided by the OIG of the full nature of the variations and why the variations existed in the
first place or the implications of each variation. Thus, it is premature for the OIG to conclude whether or not such
variations are positive or negative unless there is some cogent analysis of why the Regional Office(s) chooses a
particular methodology. The OIG must understand and appreciate that conditions vary greatly from region to region,
and, therefore, it is most appropriate for the regions to determine how best to understand the conditions in their areas
of jurisdiction and responsibility. Simply applying a methodology used by one or two other regions and forcing it to
fit in another region without analysis begs the question. The variations include differential environmental conditions,
population groups, institutional histories and relationships, and require different approaches and strategies. The OIG
draft evaluation report unfortunately, however, simply conveys the impression that such variations are negative
merely because the Agency has not come up with some hard and fast number regarding the "determination of
minority status, income threshold, and all other criteria necessary to provide regions with information for
environmental justice decision." The Deputy Regional Administrators (in addition to the other members of the
Environmental Justice Executive Steering Committee) determined after a full day of discussion and deliberation that
they believed that flexibility in methodology was what they needed to conduct these environmental justice
assessments. The Action Item Summary Report on the April 17, 2002, facilitated dialogue states that:
"Handbook as a Toolbox
• Unanimity that the document would be used as a toolbox which offers a range of tools and
approaches for conducting an environmental justice assessment.
OEJ will make changes to the document to explicitly reflect this intended use, and include
specific language (see Region 9's suggested wording in Tab 8 of the briefing binder) to
indicate that each region has the flexibility to make its own judgment regarding when and
how the tools will be used.
• Somewhere in the assessment process, there is a nexus between environmental impacts and
demographics. The sequencing may vary and, depending on the surrounding facts and
circumstances, the more in-depth analysis may start at different points, but the end result is
the same regardless of approach.
Thresholds
The participants reached a conscious decision to be silent on the issue of thresholds. There
will not be a national definition for thresholds. No "brightline."
The document should maintain the demographic metrics to help Regions reach their own
decisions.
The participants approved the existing language and metrics in the draft document, and
asked OEJ to ensure this decision is reflected explicitly and consistently throughout the
document. (OEJ will also take out references to "culture" and "education" that were
previously proposed by some regions but keep "race" and "income" as some of the
metrics.)" (Emphasis added) (Attachment P)
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Third, there is a major distinction between a "standard approach" and a "systematic approach". The OIG, on
one hand, has recommended that a standard approach should be used to determine what is an "environmental justice
community" because it has found that variations exist among the regions although it failed to point out in the analysis
why these variations are, in fact, negative. The Agency, on the other hand, has determined that the challenges of
effectively integrating environmental justice considerations into all policies, programs, and activities requires a
systematic approach to account for such variations. Uniformity is not the most effective approach in the Agency's
view.
Fourth, the Agency strongly believes that the OIG did not accurately quote the statement of the Director of
the Office of Environmental Justice because he has repeatedly argued for a systematic approach to addressing the
issue of environmental justice. In the September 24, 2002, response to the OIG question — How are "potential
environmental justice communities" identified and what are the benefits or implications of being so designated?— he
stated that the:
"OEJ has developed a proposed draft reference guide entitled, 'Toolkit for Assessing and
Addressing Potential Allegations of Environmental Injustice,' which provides tools that EPA staff
can use in addressing a broad spectrum of environmental justice issues raised by a community or
other stakeholders. Specifically, the proposed Draft Toolkit presents an approach for conducting a
preliminary assessment of such allegations. The Methodology for Environmental Justice
Assessment, is found at Chapter 4. Attached. Because of demographic differences, and the unique,
fact-specific circumstances in which each case arises, at this point, EPA has elected not to establish
a national definition of an environmental justice community, or to establish specific 'cut-points' for
determining disproportionate impacts. The proposed Draft Toolkit, was approved by the EPA
Environmental Justice Executive Steering Committee, however, due to policy concerns raised by the
Office of General Counsel, the document has not yet been issued.
"In addition to the proposed Draft Toolkit, the Environmental Justice-GIS (Geographic Information
System) Work Group was established to assist in the development of a national GIS-based
environmental justice assessment tool. This tool seeks to make readily available to the user a robust
set of indicators relevant to environmental justice. It follows the framework developed for the
assessment methodology in the proposed Draft Environmental Justice Toolkit (i.e., use of
environmental health, economic and social factors). The Work Group reached consensus that an
environmental justice assessment should go beyond merely the use of demographic thresholds (i.e.,
race and income) to make an determination on whether an area is an 'environmental justice
community.' Selection of indicators will also follow the criteria developed in the proposed Draft
Toolkit. The Work Group consists of representatives from both the GIS and environmental justice
staffs from all the regional offices and several headquarter programs offices. It is co-chaired by the
Office of Environmental Information and the Office of Environmental Justice." (Attachment A)
His full written statement focused on the lack of necessity for absolute uniformity only and did not suggest
the lack of a systematic approach.
The Agency takes issue with the OIG's apparent premise that a set of uniform thresholds for minority status
and low-income status represents a systematic approach. And, hence, the OIG believes the lack of having these
thresholds represents a lack of a systematic approach. The OIG's assumption that a set of nationally uniform
thresholds can be characterized as anything close to a systematic methodology is mistaken. As discussed previously,
the challenges of integrating environmental justice considerations into the Agency's decisionmaking processes
requires a systematic approach that accounts for variations from region to region. Moreover, the Agency strongly
believes that a uniform approach based solely upon what will be, at best, an arbitrary predetermined national
threshold value for race or income is not only, in fact, not workable but will inevitably produce more harm than good.
In sum, the Agency strongly believes that developing a standard strategy that limits variations relating to GIS
applications is not the appropriate approach for EPA to take. Programmatic consistency as reflected in a systematic
approach is the appropriate and practicable course of action.
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OIG Proposed Recommendation 3-2: Require that the selected strategy for determining an environmental justice
community is consistent for all EPA program and regional offices.
Agency Response: The Agency does not concur with this proposed recommendation because it calls for determining
what is or what is not "an environmental justice community." Please see the Agency's responses to the OIG's
proposed recommendations 2-1, 2-2, 2-5, 2-6, and 3-1.
OIG Proposed Recommendations 3-3: Develop a clear and comprehensive policy on benefits and protections that
should be afforded to identified environmental justice communities and strive to include in States' Performance
Partnership Agreements and Performance Partnership Grants.
Agency Response: The Agency does not concur with this proposed recommendation because it calls for "a clear
and comprehensive policy on benefits and protections that should be afforded to identified environmental justice
communities." This is flawed not only because it attempts to inject a civil rights law paradigm into the environmental
law arena but it also seeks to identify "environmental justice communities" with the threshold demographic values
that the Agency rejects. Moreover, the OIG is arguing that these "environmental justice communities" should have
special "benefits and protections" based upon its mistaken interpretation of the Executive Order. Again, the
Executive Order specifically provides no such special "benefits and protections." Please see the Agency's response
to the OIG proposed recommendation 2-1.
The Agency, however, believes that integration of environmental justice considerations into states'
Performance Partnership Agreements and Performance Partnership Grants is appropriate. This is reflected in the
former Administrator's memorandum which states that:
"Integration of environmental justice into the program, policies and activities via
Headquarters/Regional Office Memoranda of Agreements and Regional Office/State Performance
partnership Agreements in an Agency priority. The Director of the Office of Environmental Justice,
Barry E. Hill, and his staff are available to assist you."
Additionally, in order to examine how states are attempting to integrate environmental justice, the Office of
Environmental Justice, through a cooperative agreement, asked the National Academy of Public Administration
(NAPA) to develop and issue its report, entitled, "Models For Change: Efforts by Four States To Address
Environmental Justice," (June 2002). NAPA provided 39 specific recommendations to states in its comprehensive
report. The report is available to the public on the Office of Environmental Justice's Web site at:
http://www.epa.gov/compliance/resources/publications/ei/ei annual_proiect_reports.html.
Factual Inaccuracies
In addition to the Agency's concerns expressed in the above responses, the OIG may want to correct the
following factual inaccuracies in the draft evaluation report:
Page 4, paragraph 5: "The EPA Environmental Justice Executive Steering Committee, formed in
1994, is generally comprised of the deputy assistant administrators in each program office, and the
deputy regional administrators in the regional offices." The Environmental Justice Executive
Steering Committee is actually comprised of the deputy assistant administrators in each program
office, the deputy regional administrators in the regional offices, the Director of the Office of
Environmental Justice, the Associate General Counsel of Cross-Cutting Issues, and the Assistant
Inspector General for Program Evaluation or his representative. The Steering Committee is
comprised of more offices and individuals.
Page 9, paragraph 3: "We disagree with the Office of Environmental Justice Director's current
approach, and believe the Agency's previous actions support our position." It is not "the Director's
current approach." It was a concerted decision made by the Environmental Justice Executive
Steering Committee at the April 17, 2002, facilitated dialogue in Washington, D.C. related to the
draft Toolkit. See Attachment O. This decision was reaffirmed as recently as August 28, 2003, in
the Tim Fields' report discussed previously, which the OIG reviewers were sent at the same time.
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In the "Summary of Major Findings and Recommendations Regarding the Development and
Implementation of Environmental Justice Performance Measures," with respect to the definition of
an "EJ Community or EJ Area," the report specifically stated that:
"Only a few of the EPA senior managers presented differing opinions as to how
an EJ community or area should be defined. These officials believe that there
should be one national definition of an EJ community or EJ area, which is
consistently applied across all EPA Regions and laboratories. However, the vast
majority believe that there is a need for flexibility, and that efforts required to
develop one consistent definition are not the best use of EPA resources. Tetra
Tech recommends the flexible approach and that development of one uniform
definition of an 'EJ community or EJ Area' is not appropriate." (Emphasis added)
(Attachment Q)
Page 7, paragraph 7: "The EPA's Office of Environmental Justice has not fully complied with
Executive Order 12898...." Although the Agency strongly disagrees with the OIG's
conclusion, it would be more accurate for the OIG to state that it is the Agency and not the
Office of Environmental Justice who is not in compliance with the Executive Order since it
was a concerted decision by the Environmental Justice Executive Steering Committee at the
April 17, 2002, facilitated dialogue in Washington, D.C. related to the draft Toolkit. See
Attachment P and also Attachment Q.
Page 11, paragraph 3: "While most program offices and regions reviewed have embarked upon
some form of strategic planning, the Office of Environmental Justice has not." This statement
is not accurate. See Attachment L. Also, after countless hours talking to the OIG reviewers
about the Office's strategic planning, the OIG did not ask the Director for a copy of any
particular strategic planning document. Moreover, the language that the OIG quoted is taken
out of context in that it was a response to the OIG's specific question: "1. In 1995, EPA issued
the Environmental Justice Strategy. What is the implementation status of the strategy?" See
Attachment N.
Page 15, paragraph 3: "The Office of Environmental Justice Director said the Agency was
being 'pummeled' over having issued guidance used against it." It should read, instead, that,
"The Office of Environmental Justice Director said that several appellate courts had recently
ruled against the Agency concluding that guidance documents should have been subjected to
the standard regulatory review process." The statement, as written by the OIG, does not make
sense.
Page 16, paragraph 2: "The Office of Environmental Justice was created to be the national
coordinator to oversee the Agency's implementation of the Executive Order...." The Office of
Environmental Justice was not created for that purpose. The Executive Order was issued
February 11, 1994: whereas the Office was created in 1992. See Attachment F.
Page 14, paragraph 2: "However, critics of the slow progress of environmental justice
integration point to the office being moved from the Office of the Administrator to OECA as
being tantamount to de-emphasizing environmental justice." The Office of Environmental
Justice was never in the Office of the Administrator: it was originally part of the Office of
Administrative and Resources Management. See Attachment F and Attachment M.
Page 25, paragraph 1: "Supplemental Environmental Projects (SEPs) were awarded to specific
communities but not most." SEPs are not awarded to specific communities. In the Fiscal Year
2002, OECA Accomplishments Report entitled, "Environmental Results Through Smart
Enforcement," SEPS are explained at page 31, as follows:
"Supplemental Environmental Projects (SEPs) provide opportunities for environmental
violators to undertake environmentally beneficial projects. A SEP is part of an enforcement
settlement connected with the violation of a statutory or regulatory environmental requirement.
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"SEPs are environmentally beneficial projects that may be proposed by a violator or EPA
during the settlement of an enforcement action. We examine whether a violator is committed
to, and has the ability to, perform a SEP when determining the appropriateness of including a
SEP in the settlement. If a violator agrees to perform a SEP, its cash penalty may be lowered.
The SEP must reduce risks to improve or project public health or the environment." (Emphasis
added)
The OIG may want to review the following Agency documents related to enforcement
targeting and environmental justice:
"Memorandum,: Assistant Administrator OECA, "Compliance and Enforcement
Strategy Addressing Combined Sewer Overflows and Sanitary Sewer Overflows,"
Section IV, B. 2. "Priorities for SSO Enforcement Response" (April 27, 2000)
(directing OECA to target compliance assurance/enforcement activities in areas
raising environmental justice concerns).
Supplemental Environmental Project Policy, §§ A.2 and E (May 1, 1998)
(encouraging the use of SEPs that address environmental justice issues and specifying
that environmental justice should be considered in the SEP mitigation percentage).
Guidance on the Use of Section 7003 of RCRA, § II, Bullet 1 (Oct. 1997) (directing
OECA to target compliance assurance/enforcement activities in areas raising
environmental justice concerns).
Memorandum, Assistant Administrator, OECA, "Issuance of the Interim Policy on
Settlement of CERCLA § 106(b)(l) Penalty Claims and § 107(c)(3) Punitive
Damages Claims for Noncompliance with Administrative Orders," (September 20,
1997) (establishing environmental justice as a penalty consideration factor).
Page 25, paragraph 3: "At the Headquarters level, OECA adopted environmental justice as a
performance priority for Fiscal Year 2004... Because of the variations in how an 'EJ
community' is defined by regions, some communities may benefit more from this OECA
national priority." The OIG does not appear to understand OECA's "Smart Enforcement"
Program which essentially requires EPA to use the most appropriate enforcement or
compliance tools to address the most significant problems to achieve the best outcomes. Smart
Enforcement means, for example, compliance monitoring and data analysis to:
"Identify and select priorities for the enforcement and compliance program;
Identify environmental problems and patterns of noncompliance that may need to be
addressed through a targeted initiative;
• Identify and address environmental justice problems in communities in which
significant noncompliance is occurring;
Assess the state of compliance in a particular sector or population of regulated
entities;
Measure environmental outcomes resulting from program activities;
Measure progress addressing priorities, initiatives and annual performance goals; and
Provide public access to enforcement and compliance data."
(Emphasis added)
Source: Fiscal Year 2002, OECA Accomplishments Report, "Environmental Results
Through Smart Enforcement," at page 10.
Thus, OECA's targeting efforts, in actuality, will not be based on the definition of an
"environmental justice community." Instead, it is based on identifying and addressing the
environmental justice problems in communities regardless of who resides in the communities,
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where there is significant noncompliance occurring. Therefore, no community will be
punished or receive greater benefit because of some small variation in methodology in the
regions.
Conclusion
The Agency disagrees with the major assertions made by the OIG in the draft evaluation report because
we strongly believe that those assertions were based on a mistaken interpretation of the language of the
Executive Order. In light of the above, the Agency asks the OIG to reconsider its basic premise and
interpretation of the language of the Executive Order since every recommendation flows from that mistaken
interpretation.
The Agency believes that it has a vibrant environmental justice program and has made a considerable
amount of progress in integrating the issue into the EPA decisionmaking processes. There is, however, more
work to be done before there is full integration. The Agency is committed to ensuring that this is accomplished.
The Agency appreciates the work done by the OIG reviewers and sincerely hope that EPA's responses
have provided useful information to the OIG about our comprehensive environmental justice program.
cc: Greg Marion, OECA
Jeff Harris, OIG
Steven Weber, OIG
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Appendix E
OIG Comments on EPA's Response
General Comments
The OIG and the EPA Office of Environmental Justice clearly disagree regarding the
intent of Executive Order 12898. The OIG believes that the intent of the Executive
Order is to specifically outline the Federal actions needed to address environmental
justice^or minority and low-income population, while the Agency believes the
Executive Order and the concept of environmental justice should apply to everyone and
not just focus on specific populations. However, the Executive Order was issued
following specific concerns raised about minority and low-income communities being
disproportionately impacted by environmental risk, and the Executive Order
specifically refers to minority and low-income populations, including in the actual title
of the Executive Order itself ("Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations"). Therefore, we believe EPA
needs to specifically address providing environmental justice to minority and low
income populations. While providing adequate environmental justice to the entire
population is commendable, doing so had already been EPA's mission prior to
implementation of the Executive Order; we do not believe the intent of the Executive
Order was simply to reiterate that mission.
It is important to note that other Federal entities, as well as many officials at the EPA
regional level, appear to share our opinion that the specific intent of the Executive
Order is to draw attention to minority and low-income populations that may be
disproportionately impacted by environmental risk. To sufficiently provide
environmental justice to minority and low-income communities that may be
disproportionately impacted, it is critical to define affected populations. Standard
definitions related to such terms as minority, low-income, and disproportionate impact
have already been provided by other Federal groups. For example, the White House
Counsel on Environmental Quality (CEQ), on December 10, 1997, issued Guidance for
Federal Agencies on Key Terms in Executive Order 12898, and included the following
definitions:
Low-income population: Low-income populations in an affected area should
be identified with the annual statistical poverty thresholds from the Bureau of
the Census' Current Population Reports, Series P-60 on Income and Poverty. In
identifying low-income populations, agencies may consider as a community
either a group of individuals living in geographic proximity to one another, or a
set of individuals (such as migrant workers or Native Americans), where either
type of group experiences common conditions of environmental exposure or
effect. (Emphasis added)
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Minority: Individual(s) who are members of the following population groups:
American Indian or Alaskan Native; Asian or Pacific Islander; Black, not of
Hispanic origin; or Hispanic.
Minority population: Minority populations should be identified where either:
(a) the minority population of the affected area exceeds 50 percent or (b) the
minority population percentage of the affected area is meaningfully greater than
the minority population percentage in the general population or other
appropriate unit of geographic analysis. In identifying minority communities.
agencies may consider as a community either a group of individuals living in
geographic proximity to one another, or a geographically dispersed/transient set
of individuals (such as migrant workers or Native American), where either type
of group experiences common conditions of environmental exposure or effect.
(Emphasis added)
The selection of the appropriate unit of geographic analysis may be a governing
body's jurisdiction, a neighborhood, census tract, or other similar unit that is to
be chosen so as to not artificially dilute or inflate the affected minority
population. A minority population also exists if there is more than one minority
group present and the minority percentage, as calculated by aggregating all
minority persons, meets one of the above-stated thresholds.
Disproportionately high and adverse human health effects: When
determining whether human health effects are disproportionately high and
adverse, agencies are to consider the following three factors to the extent
practicable: (a) Whether the health effects, which may be measured in risks and
rates, are significant (as employed by NEPA), or above generally accepted
norms. Adverse health effects may include bodily impairment, infirmity, illness,
or death; and (b) Whether the risk or rate of hazard exposure by a minority
population, low-income population, or Indian tribe to an environmental hazard
is significant (as employed by NEPA) and appreciably exceeds or is likely to
appreciably exceed the risk or rate to the general population or other appropriate
comparison group; and (c) Whether health effects occur in a minority
population, low-income population, or Indian tribe affected by cumulative or
multiple adverse exposures from environmental hazards. Disproportionately
high and adverse environmental effects: When determining whether
environmental effects are disproportionately high and adverse, agencies are to
consider the following three factors to the extent practicable: (a) Whether there
is or will be an impact on the natural or physical environment that significantly
(as employed by NEPA) and adversely affects a minority population, low-
income population, or Indian tribe. Such effects may include ecological,
cultural, human health, economic, or social impacts on minority communities,
low-income communities, or Indian tribes when those impacts are interrelated to
impacts on the natural or physical environment; and (b) Whether environmental
effects are significant (as employed by NEPA) and are or may be having an
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adverse impact on minority populations, low income populations, or Indian
tribes that appreciably exceeds or is likely to appreciably exceed those on the
general population or other appropriate comparison group; and (c) Whether the
environmental effects occur or would occur in a minority population, low-
income population, or Indian tribe affected by cumulative or multiple adverse
exposures from environmental hazards.
Further, to comply with Executive Order 12898, the U.S. Department of Transportation
issued the Order to Address Environmental Justice in Minority Populations and Low-
Income Populations, which contains the following definitions:
• Low-Income means a person whose median household income is at or below
the Department of Health and Human Services poverty guidelines.
• Minority means a person who is:
(1) Black (a person having origins in any of the black racial groups of
Africa);
(2) Hispanic (a person of Mexican, Puerto Rican, Cuban, Central or South
American, or other Spanish culture or origin, regardless of race);
(3) Asian American (a person having origins in any of the original peoples
of the Far East, Southeast Asia, the Indian subcontinent, or the Pacific
Islands); or
(4) American Indian and Alaskan Native (a person having origins in any of
the original people of North America and who maintains cultural
identification through tribal affiliation or community recognition).
• Low-Income Population means any readily identifiable group of low-income
persons who live in geographic proximity, and, if circumstances warrant,
geographically dispersed/transient persons (such as migrant workers or
Native Americans) who will be similarly affected by a proposed DOT
program, policy or activity.
• Minority Population means any readily identifiable groups of minority
persons who live in geographic proximity, and if circumstances warrant,
geographically dispersed/transient persons (such as migrant workers or
Native Americans) who will be similarly affected by a proposed DOT
program, policy or activity.
• Adverse effects means the totality of significant individual or cumulative
human health or environmental effects, including interrelated social and
economic effects, which may include, but are not limited to: bodily
impairment, infirmity, illness or death; air, noise, and water pollution and
soil contamination; destruction or disruption of man-made or natural
resources; destruction or diminution of aesthetic values; destruction or
disruption of community cohesion or a community's economic vitality;
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destruction or disruption of the availability of public and private facilities
and services; vibration; adverse employment effects; displacement of
persons, businesses, farms, or nonprofit organizations; increased traffic
congestion, isolation, exclusion or separation of minority or low-income
individuals within a given community or from the broader community; and
the denial of, reduction in, or significant delay in the receipt of, benefits of
DOT programs, policies, or activities.
• Disproportionately high and adverse effect on minority and low-income
populations means an adverse effect that:
(1) is predominately borne by a minority population and/or a low-income
population, or
(2) will be suffered by the minority population and/or low-income
population and is appreciably more severe or greater in magnitude than the
adverse effect that will be suffered by the non-minority population and/or
non-low-income population.
EPA regional personnel have also noted the importance of providing environmental
justice, including definitions. For example, Region 9 states in its Environmental Justice
Assessment Project:
"EPA Region 9 has begun to identify and address environmental justice (EJ)
issues in the Region through an EJ Assessment Project. The purpose of the
project is to identify low-income communities and minority communities where
existing and potential sources of environmental hazard and risk are numerous;
identify potential options for addressing the most significant environmental
problems in these communities; and begin to address the problems in these
communities through EPA action and through the involvement of other agencies
with jurisdiction.
"Utilizing Geographic Information System (GIS) mapping, the Agency will
target low-income communities and minority communities in the Region which
are in close proximity to a high number of potential pollution sources. These
"EJ communities" have a greater likelihood of high environmental exposures
and potential for higher end risks. The Agency will then examine current
federal, state, and local activities aimed at reducing or eliminating potential
exposures and risks in these "EJ communities," in order to identify communities
where environmental needs are not being adequately addressed."
Further, Region 1 Senior Officials expressed concerns about how the various regions
were developing their own separate definitions:
"Noted that the myriad of definitions for an EJ community presents a challenge.
Each region has a different definition, threshold, or mechanism to describe an
affected community and actions taken to address issues in such communities.
The fact the OEJ is addressing this issue through such mechanisms as the recent
meeting in San Francisco is positive, but the agency still has a long way to go to
standardize EJ definitions and language. The agency may be supporting
regional definitions in the future, this would be fine in Region 1 because they
have created definitions and thresholds, and have even mapped communities
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using GIS." (Senior Region 1 Officials interview with Office of Environmental
Justice consultant)
Based on its mission, we believe EPA should be a leader in providing environmental
justice, and should have a program in place that is equal to if not greater than those used
by other agencies, such as CEQ and the U.S. Department of Transportation. While EPA
has made progress at the regional level, the EPA Office of Environmental Justice needs
to provide more leadership at the national level. In particular, the Office of
Environmental Justice needs to provide definitions on such key terms as minority
population, low-income population, and disproportionately impacted. Overall, the
Agency cannot carry out its responsibilities to enforce the Executive Order's intent
without considering the effects of its actions on minority and low-income populations.
In addition to the above general comments, we noted the following regarding the
Agency's comments on the specific recommendations.
OIG Response to Comment on Recommendation 2-1
The EPA Administrator's August 9, 2001, memorandum does not address EPA's
responsibilities for implementing Executive Order 12898. The memorandum speaks of
EPA's efforts on integrating environmental justice concepts into the Agencies policies,
programs, and activities. This memorandum attempts to include minority and low-
income considerations into the Agency's overall mission statement. The memorandum
should not be considered a substitute for the Executive Order. In its draft toolkit on
environmental justice, the Agency noted:
"A fundamental basis for EPA's environmental justice program is Executive
Order 12898, which directed federal agencies to make environmental justice a
priority ... However, while the Executive Order focused on minority and
low-income populations, EPA's mission statement demonstrates that the
environmental justice concepts should be applied to all communities
regardless of race, ethnicity or income status. Existing environmental
statutes and their implementing regulations provide EPA with the opportunity
for applying these principles in carrying out this fundamental mission. A recent
memorandum from Administrator Whitman further affirms that
environmental justice is intended for all populations..." (emphasis added)
As noted, we disagree that the intent of the Executive Order was to focus on all
populations, since that was already the overall mission of EPA.
We further disagree with the Agency's contention that the Executive Order does not
require it to define disproportionately impact. The Executive Order's Section 102 (b)
states:
"The Working Group shall: (1) provide guidance to Federal agencies on criteria
for identifying disproportionately high and adverse human health or
environmental effects on minority populations and low-income populations."
OIG paraphrased this requirement as "disproportionately impacted," a term already in
use by the EPA Office of Environmental Justice as well as several regional offices.
While the specific phrase is not in the Order, we used it because it is a generic term
already in use by the Agency, regional offices, and stakeholders.
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Also, the intent of the Executive Order as interpreted by regional offices and other
Federal entities, does provide actions that are intended as protections and/or benefits
that are incumbent within existing law, regulation, policies, and actions. While the
Executive Order may not use the exact words "special benefits and protections," it was
clearly intended as a mechanism to ensure that Federal agencies take action so that
minority and low-income populations are afforded the protections and benefits
contained within Federal environmental law. If it was not the intention of the Executive
Order to afford benefits and protections, it begs the question why was it enacted at all.
OIG Response to Comment on Recommendation 2-2
The issue of developing definitions, goals, and measurements is addressed by our
preceding general comment.
The original action plans' template from the Office of Environmental Justice was not a
detailed strategic plan as provided by the Office of Environmental Justice in its
response. The original template in 2002 asked a series of questions of the regional and
Headquarter offices, such as:
"What is your Regional/Headquarter Office's environmental justice policy?"
"Identify the aggregate full-time equivalents in your Regional/Headquarter
office that will specifically focus on environmental justice issues."
"What are the functions and day-to-day responsibilities of your environmental
justice coordinators and/or team?"
These template questions are more indicative of the Office of Environmental Justice
asking the region and Headquarter offices for basic information the national office
should have already had after being in existence for 12 years. Also, while we believe
that the Office of Environmental Justice's decision to require action plans in order to
establish some accountability over the program was appropriate, it was initiated late
into the process.
OIG Response to Comment on Recommendation 2-3
The Agency's response provides a definition for environment justice, not a vision. Our
recommendation is valid. The Agency does not have a vision with clear objectives
showing how the Agency will achieve the goal of environmental justice, as it is defined.
OIG Response to Comment on Recommendation 2-4
It should be noted that on the various occasions we met with the Office of
Environmental Justice Director, it was made very clear to us that Office of
Environmental Justice did not have a strategic plan. In its response, the Agency stated
it allowed each region and program office to establish its own strategies and considers
this to be its strategic plan. However, we maintain there is a need to develop a national
plan. It should be noted that subsequent to our draft report being issued, the Office of
Environmental Justice developed and provided to us a draft Strategic Plan for 2004.
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OIG Response to Comment on Recommendation 2-5
Regarding the providing of definitions, we believe such definitions are needed, as
discussed in our general comment. Regarding the Agency's concern with our flow
chart, the OIG's outline was an attempt to show how the Agency should respond under
the Executive Order, since the Executive Order calls for the Agency to identify and
address impacts on minority and low-income populations. The outline is based on
guidelines being used by various EPA regions and other Federal agencies. The OIG
believes that demographics alone are not sufficient, but demographics (along with a
definition of disproportionate) is nonetheless needed to identify an environmental
justice area.
OIG Response to Comment on Recommendation 2-6
As provided in its draft Strategic Plan for 2004, the Office of Environmental Justice
plans to have 10 percent of EPA employees trained in the basic fundamentals training
by December 2004. This seems to be a small portion of employees for an effort that
started in 2002. Additionally, per the 2004 draft Strategic Plan, training for permit
writers and inspectors is targeted to only be developed by December 2004. As the lead
for this type of training, it does not appear that the Office of Environmental Justice has
developed this training in a very timely manner. Also, in June 2003, training was
discussed at an National Environmental Justice Coordinators meeting because of
inconsistency among the regions in how the training was being delivered. While the
Agency decided it would therefore be appropriate to coordinate environmental justice
training at the national level, we did not consider the training to be sufficient because it
did not provide definition of such key areas as minority population, low-income
population, and disproportionately impacted.
OIG Response to Comment on Recommendation 2-7
The Agency concurred with our recommendation to perform a comprehensive study of
program and regional offices' funding and staffing for environmental justice.
OIG Response to Comment on Recommendation 2-8
We disagree with the Agency's contention that the mission of the Office of
Environmental Justice has not changed since 1992. The office itself noted 10 years
later in its Fall 2002 EJ Quarterly publication:
"OEJ has redefined itself and the very notion of environmental justice. Its
mission is clear and ongoing: In a nutshell, environmental justice is for all
communities."
Staff at the regional and Headquarters level expressed uncertainty regarding the role of
the Office of Environmental Justice. Therefore, we believe that office needs to more
clearly define its mission and provide Agency staff with an understanding of its roles
and responsibilities of the office.
OIG Response to Comment on Recommendation 2-9
We believe our recommendation is valid and should be implemented. Additionally, it
should be noted that the Office of Environmental Justice recognized the need to have
performance measures to assess the program's accomplishments. It contracted with a
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consultant in 2003 to provide recommendations on the development and
implementation of environmental justice performance measures for the Office of
Environmental Justice. The consultant advised the Office of Environmental Justice that
performance measurement is "an integral part" of the environmental justice action plans
to monitor and report a program's accomplishments.
OIG Response to Comment on Recommendation 3-1
We believe that our recommendation is valid and should be implemented. We can
provide the Agency with our consultant's methodology used to formulate the
differences in mapping between the regions. The differences between the regions is not
as dramatic as stated by the Agency. All the regions use variations of demographics
from the Census Bureau. The Office of Environmental Justice questioned why OIG did
not determine the reasons for the regional variations. The most immediate answer is
that since the Office of Environmental Justice never issued any definitions or guidance,
each region took it upon itself to define what constitutes an environmental justice area.
Additionally, the Agency stated that it was premature for the OIG to conclude whether
such variations are positive or negative. The OIG never stated or drew any conclusion
that one method was negative or positive. The OIG's report demonstrates that lack of
consistency between the regions in defining and mapping of potential environmental
justice areas can lead to inconsistent implementation of the Executive Order 12898 by
the Agency. In addition, if other Federal agencies can define minority and low-income
populations on a national basis, as noted in our "General Comments," it should also be
possible for EPA to do the same.
OIG Response to Comment on Recommendation 3-2
We believe that our recommendation is valid and should be implemented. The issues
raised by the Agency our addressed in the "General Comments" and responses to other
recommendations.
OIG Response to Comment on Recommendation 3-3
We believe that our recommendation is valid and should be implemented. The issues
raised by the Agency are addressed in the "General Comments" and responses to other
recommendations. The Agency did note that it agrees the integration of environmental
justice considerations into States' Performance Partnership Agreements and
Performance Partnership Grants is appropriate. However, without a clear and
comprehensive policy from EPA, this cannot be implemented.
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Appendix F
Distribution
EPA Headquarters
Administrator
Acting Deputy Administrator
Acting Assistant Administrator for Enforcement and Compliance Assurance
Director, Office of Environmental Justice
Acting Associate Administrator, Office of Public Affairs (1101 A)
Agency Followup Official (the CFO) (2710A)
Agency Audit Followup Coordinator (2724A)
Audit Followup Coordinator, Office of Enforcement and Compliance Assurance
Audit Followup Coordinator, Office of Public Affairs
Associate Administrator for Congressional and Intergovernmental Relations (1301 A)
Director, Office of Regional Operations (1108 A)
EPA Regions
Regional Administrators
Regional Audit Followup Coordinators
EPA Office of Inspector General
Inspector General (2410)
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