Toolkit for Assessing Potential
Allegations of Environmental Injustice
Environmental
Justice
-------
United States Enforcement and EPA 300-R-04-002
Environmental Protection Compliance Assurance November 2004
Agency (2201 A)
Office of Environmental Justice
FOR ADDITIONAL COPIES CONTACT
Office of Environmental Justice
1-800-962-6215
or send an e-mail to
environmental-iustice-epa(S)/epa.gov
Inside Front Cover
-------
PREFACE
The mission of the U.S. Environmental Protection Agency (EPA or Agency) is to protect
public health and safeguard the natural environment - the air, land, and water - upon which all
life depends. One of the single most important concerns emanating from a contaminated
environment is its potential adverse impact on human health and the environment. The Agency
is also committed to ensuring that all communities are empowered through information
dissemination and education to have a better understanding of the environment and the impact
that it may have on their health. This empowerment would, in turn, help residents of these
communities be meaningfully involved in the decisionmaking processes that directly affect the
environment in their communities.
Simply stated, environmental justice is the goal to be achieved for all communities so
that: (1) people of all races, colors, and income levels are treated fairly with respect to the
development and enforcement of protective environmental laws, regulations, and policies; and
(2) potentially affected community residents are meaningfully involved in the decisions that will
affect their environment and/or their health. Conversely, allegations of environmental injustice
describe the situations where communities believe that the goal has not been achieved because of
their belief that there is disproportionate exposure to environmental harms and risks. These
environmental harms and risks often include, for example, multiple sources of air pollution
(indoor and outdoor), water quality concerns, and the cumulative impacts associated with living
in some urban and rural areas.
Allegations of environmental injustice come in a variety of shapes and sizes. Allegations
of environmental injustice include, but are not limited to:
(1) a dispute over the siting of a pollution-generating facility in a community
that is already inundated with such facilities;
(2) allegations that government regulators are not enforcing protective
environmental laws, regulations, and policies equally;
(3) a dispute over the method of cleanup standards and operations at a
contaminated site;
(4) arguments regarding whether the approach to a cleanup/enforcement action
should address single versus multiple sources of contamination at a site;
(5) disputes over which segment of the population bears the burden, i.e., the
resident population, or the seasonal agricultural workers in the fields, or
transients (individuals at shopping centers, or people participating in
recreational activities such as a soccer field that is constructed on top of a
former landfill); or
Final-- November 3, 2004 Page i
-------
(6) the notion of proximity, e.g., the effects of pollution on the proximate
community verses the adverse health effects on the population affected by off-
site operations.
This document is a toolkit, and therefore provides tools for EPA staff to use in assessing
the environmental and human health concerns of such communities. It sets forth various research
tools and provides a systematic approach for gathering and analyzing data related to
environmental, social, economic, and health-related technical information to determine whether
or not an environmental injustice situation appears to exist or may be avoided altogether.
This document provides tools and other reference materials to assist Agency personnel in
assessing allegations of environmental injustice. The document provides a framework for
understanding national policy on the subject of environmental justice.
The federal statutory and regulatory provisions referenced in this document contain
legally-binding requirements. This document does not substitute for those provisions, nor is it a
regulation itself. Thus, it does not impose any legally-binding requirements on EPA, states,
Indian tribes, or the regulated community, nor is it intended to alter EPA's enforcement
discretion/response or small business policies. EPA retains the discretion to adopt approaches on
a case-by-case basis that differ from this framework, where appropriate. Any decisions made by
EPA will be based on the applicable statutes and implementing regulations. Therefore, interested
parties are free to raise questions about the provisions of this framework or the appropriateness of
applying this approach to a particular situation. EPA will consider whether the approaches
discussed in this document are appropriate in each situation that may arise.
This Toolkit is a living document and may be revised periodically without public notice.
EPA welcomes public comments on this document at any time and will consider those comments
in any future revision of this Toolkit.
We are very pleased to issue the "Toolkit for Assessing Potential Allegations of
Environmental Injustice" because we believe that it will enable you to better analyze allegations
of environmental injustice, and will also serve as a tool for proactively preventing environmental
justice concerns from occurring in the future.
Barry E. Hill
Director
Office of Environmental Justice
Final-- November 3, 2004 Page ii
-------
TABLE OF CONTENTS
Page
PREFACE i
1. INTRODUCTION 1
1.1 PURPOSE OF THIS TOOLKIT 1
1.2 INTENDED AUDIENCE AND SCOPE 2
1.3 ORGANIZATION OF THIS TOOLKIT 5
2. THE STATUTORY/ POLICY FRAMEWORK FOR ENVIRONMENTAL JUSTICE 7
2.1 EXECUTIVE ORDER 12898 7
2.2 EPA'S MISSION 8
2.3 ADMINISTRATOR'S MEMORANDUM 9
2.4 ENVIRONMENTAL STATUTES 12
3. ENVIRONMENTAL JUSTICE INDICATORS FRAMEWORK 15
3.1 OVERVIEW OF ENVIRONMENTAL JUSTICE ASSESSMENT
METHODOLOGY 15
3.1.1 Overview of the Methodology 18
3.1.2 Tiered Approach to Assessments 22
3.2 ENVIRONMENTAL JUSTICE INDICATORS FRAMEWORK 24
3.2.1 Background on Indicators 25
3.2.2 Environmental Justice Indicators Framework 27
3.3 ENVIRONMENTAL JUSTICE INDICATORS AND DATA SOURCES 30
3.3.1 Environmental Indicators - Examples and Data Sources 31
3.3.2 Health Indicators - Examples and Data Sources 39
3.3.3 Social Indicators - Examples and Data Sources 43
3.3.4 Economic Indicators - Examples and Data Sources 53
4. METHODOLOGY FOR ENVIRONMENTAL JUSTICE ASSESSMENT 58
4.1 PHASE 1: PROBLEM FORMULATION 58
4.1.1 Context 58
4.1.2 Scope 59
4.1.3 Participants 59
4.1.4 Affected Area 60
4.1.5 Reference Community or Communities 60
4.1.6 Assessment Endpoints 61
4.1.7 Indicators for the Assessment 61
4.1.8 Conceptual Model 62
4.1.9 Analysis Plan 62
Final-- November 3, 2004 Page iii
-------
4.2 PHASE 2: DATA COLLECTION 63
4.2.1 Identification of Environmental Sources of Stress and Likelihood of
Exposures 63
4.2.2 Collection of Data on Community of Concern and Reference Community
64
4.3 PHASE 3: ASSESSMENT OF THE POTENTIAL FOR "ADVERSE"
ENVIRONMENTAL AND HUMAN HEALTH EFFECTS OR IMPACTS ... 66
4.3.1 Assessment of the Potential for "Adverse" Environmental Effects or
Impacts 66
4.3.2 Assessment of the Potential for "Adverse" Human Health Effects or
Impacts
68
4.4 PHASE 4: ASSESSMENT OF THE POTENTIAL FOR
"DISPROPORTIONATELY HIGH AND ADVERSE" EFFECTS OR
IMPACTS 71
5. CONCLUSION 73
APPENDIX
A. Memorandum from Gary Guzy, General Counsel, to
EPA Assistant Administrators (dated December 2001) A-l
B. Statutory Provisions to Address Environmental Justice B-l
C. Example Application of the Environmental Justice
Assessment Methodology C-l
Final-- November 3, 2004 Page iv
-------
1. INTRODUCTION
1.1 PURPOSE OF THIS TOOLKIT
The Office of Environmental Justice has developed this Toolkit to serve two overarching
purposes:
To provide a conceptual and substantive framework for understanding the
Agency's environmental justice program;
To present a systematic approach with reference tools that can be used and
adapted to assess and respond to potential allegations of environmental injustice
as they occur, or to prevent injustices from occurring in the first place.
With respect to the first objective, this document provides a conceptual framework for
understanding environmental justice as both a civil rights issue as well as an environmental
policy issue. Within this context, environmental policy regarding environmental justice is
needed. The document also provides a substantive framework for explaining the environmental
justice program in the context of environmental statutes and the Agency's implementing
programs and regulations. As will be discussed in more detail in the next chapter, while
Executive Order 12898 provides direction for EPA's environmental justice activities,
environmental justice is already imbedded in EPA's own mission statement and the language of
existing environmental laws and their implementing regulations. Therefore, EPA's regulatory
programs should address environmental justice concerns as part of program implementation,
where applicable, under existing laws and their implementing regulations and appropriate in a
particular circumstance.
The second objective of this Toolkit is to present a systematic approach for responding to
potential environmental injustice situations or proactively attempting to avoid environmental
injustices in the first place. Specifically, the document presents "Environmental Justice
Indicators" as tools that can be used to assess environmental decisions, and then provides a
systematic approach for using these tools to assess a potential environmental injustice situation.
In many cases, EPA will need to evaluate potential environmental justice concerns in response to
proposed Agency actions or decisions. This activity may include reviewing permits, reviewing
or preparing National Environmental Policy Act (NEPA) documents, or preparing rules.
However, EPA may also conduct an environmental justice assessment as a result of priority
setting, enforcement targeting, etc. The general methodology is also intended to be used in
assessing both potential impacts from proposed actions and existing impacts. In addition, the
document discusses approaches for responding to and resolving apparent environmental injustice
situations, even those that center around issues that are usually not considered to be within EPA's
regulatory domain.
Final - November 3, 2004 Page 1
-------
Because of the infinitely variable nature of environmental justice concerns and
stakeholders, as well as the resources available to address any particular situation, this document
is not intended to mandate the assessment or actions to be taken in each situation. Rather, it is
intended to promote a common understanding and provide a flexible framework for assessing
such situations. The decision on whether and how to use the tools and the approach presented in
this document will be made on a case-by-case basis.
1.2 INTENDED AUDIENCE AND SCOPE
The core audience for this Toolkit is the Environmental Justice Coordinators at EPA
Headquarters and Regional Offices who are directly involved in environmental justice initiatives
and are the front-line in addressing allegations of environmental injustice. This document
provides tools that Environmental Justice Coordinators can use in addressing a broad spectrum of
environmental justice issues raised by a community or other stakeholders. These issues may
range from concerns raised by communities about conditions caused by past environmental
decisions to determinations of whether future Agency program implementation actions (e.g.,
rulemaking, permitting decisions, or enforcement actions) will have environmental justice
implications. As indicated above, each situation may require a different and unique approach,
and the Agency's offices may use their discretion in determining the appropriate method of
environmental justice analysis.
Specifically, this Toolkit presents an approach for conducting a preliminary assessment of
such allegations. However, this Toolkit is not intended for use in reviewing allegations in the
context of complaints filed with the Office of Civil Rights (OCR) pursuant to Title VI of the
Civil Rights Act of 1964, as amended,1 and in accordance with EPA's implementing regulations.2
Title VI provides that: "No person in the United States shall, on the ground of race, color, or
national origin, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance." OCR's
investigation process is discussed by the "Draft Revised Guidance for Investigating Title VI
Administrative Complaints Challenging Permits" (Draft Revised Investigation Guidance). In
addition, OCR offers suggestions to recipients of EPA financial assistance for addressing
potential Title VI concerns in the "Draft Title VI Guidance for EPA Assistance Recipients
Administering Environmental Permitting Programs" (Draft Recipient Guidance). The Title VI
investigation process focuses on whether a recipient of federal financial assistance has conducted
its programs in a manner that discriminates or has a discriminatory effect on the basis of race,
color, or national origin. Therefore, the Title VI investigation process can be used to address
formal complaints concerning a subset of environmental justice situations where complainants
believe that an adverse disparate environmental impact has resulted because of race, color, or
1 42 U.S.C. 2000d to 2000d-7.
40 CFRPartV.
Final - November 3, 2004 Page 2
-------
national origin due to the actions of a recipient of EPA financial assistance. On October 30,
1998, EPA issued its first Title VI decision on the merits of a complaint alleging discrimination
in the environmental permitting context. The complaint alleged that the issuance of a permit by
the Michigan Department of Environmental Quality (MDEQ) for the construction of a steel
recycling mini-mill by the Select Steel Corporation of America would lead to the emission of air
pollutants that would have a discriminatory effect on minority residents. In addition, the
complaint alleged that the permitting process conducted by MDEQ was discriminatory. After
investigation, OCR found no violations of Title VI or EPA's implementing regulations.3
In assessing the allegation regarding air quality impacts, EPA conducted two types of
analyses-one for criteria pollutants and another for air toxic emissions. The National Ambient
Air Quality Standards (NAAQS) for criteria pollutants are health-based standards that have been
set at a level presumptively sufficient to protect public health with an adequate margin of safety.
For volatile organic compounds (VOCs) and lead, before both the NAAQS for ozone and lead
were met, and no contradictory evidence was uncovered, EPA found no affected population
which suffers adverse impacts within the meaning of Title VI resulting from the incremental
emissions from the proposed Select Steel facility. Moreover, for lead, EPA reviewed additional
state and county information and concluded that lead emissions from the proposed facility would
have at most a de minimis incremental effect on local mean blood lead levels and the incidence
of elevated levels.
For air toxics emissions, which do not have a NAAQS, EPA reviewed the state's air
toxics analyses. In addition, the Agency also applied a modeling tool developed during the
Shintech investigation and modified after Science Advisory Board review to consider the
potential Select Steel air toxic emissions together with air toxic emissions from nearby facilities.
EPA's review found no adverse impact from air toxics in the immediate vicinity of the proposed
facility.
As to the public participation process issues, EPA found that the state satisfied all of its
regulatory requirements and that the process was not discriminatory.
It should be noted that the approaches and tools presented in this document are based on
existing federal environmental laws administered by EPA. And, as stated in the Preface, EPA
will consider whether the approaches discussed in this document are appropriate in each
situation that may arise. While there are also significant opportunities for actions to be taken by
other federal, state, tribal, and local government agencies, this Toolkit considers only EPA
authorities and Agency actions.
3 Letter from Ann E. Goode, Director, U.S. EPA Office of Civil Rights, to Father Phil Schmitter & Sister Joanne
Chiaverini, Co-Directors, St. Francis Prayer Center, and Russell Harding, Director, Michigan Department of
Environmental Quality (Oct. 30, 1998) (dismissing Title VI administrative complaint); see also, Office of Civil Rights,
U.S. EPA, Investigative Report for Title VI Administrative Complaint File No. 5R-98-R5 (Select Steel Complaint)
(1998) (recommending dismissal of complaint), (http://www.epa.gov/ocrpagel/steelcvr.htm)
Final - November 3, 2004 Page 3
-------
On a day-to-day basis, program staff have the responsibility to seek ways to integrate
environmental justice considerations into EPA's programs, policies, and activities. Therefore,
program staff should use the framework presented in this document to promote national
consistency in how environmental justice concepts are understood and addressed throughout the
Agency.
Agency staff are also encouraged to obtain environmental justice training. The Agency's
"Fundamentals of Environmental Justice Workshop" continues to be made available to Regional
and Headquarters' staff members. The Workshop explores the origins of the Environmental
Justice Movement, perceptions and definitions of environmental justice, environmental laws and
their implementing regulations, and Geographic Information Systems and other analytical tools.
The goals of the Workshop are: (1) to help EPA employees identify and address environmental
justice concerns; and (2) to help EPA employees integrate environmental justice into the
participants' work on a daily basis.
The focus of environmental justice training is to help EPA employees identify and
address environmental justice issues/concerns/matters consistent with existing environmental
laws and their implementing regulations. The ultimate determination whether a particular
situation raises an environmental justice issue/concern/matter will depend on an evaluation of the
totality of the circumstances. However, in accordance with the Department of Justice Guidance
Concerning Environmental Justice,"4 there are a number of factors that should be considered in
determining whether any individual situation does raise such an issue:
Whether individuals, certain neighborhoods, or federally recognized
tribes suffer disproportionately adverse health or environmental
effects from pollution or other environmental hazards;
Whether individuals, certain neighborhoods, or federally recognized
tribes suffer disproportionate risks or exposure to environmental
hazards, or suffer disproportionately from the effects of past under
enforcement of state or federal health or environmental laws;
Whether individuals, certain neighborhoods, or federally recognized
tribes have been denied an opportunity for meaningful involvement, as
provided by law, in governmental decisionmaking relating to the
distribution of environmental benefits or burdens. Such
decisionmaking might involve permit processing and compliance
activities.
Department of Justice, "Guidance Concerning Environmental Justice," January 9, 1995, available online
http://www.usdoi.gov/enrd/79648environmentaliusticestrategy.pdf
Final - November 3, 2004 Page 4
-------
While it is important to avoid overly narrow conceptions of possible
environmental justice situations, the mere presence of environmental
hazards in a particular community does not in and of itself mean that
an environmental justice problem is addressable in litigation.
Additional factors must be considered, such as the accumulation of a
number of environmental hazards in an affected area because of the
lack [of] public participation by the community, the lack of adequate
protection under the laws designed to protect health and the
environment, or unusual vulnerability of the community to such
hazards.5
Thus, utilizing this approach, each environmental justice issue/concern/matter would be
assessed on a case-by-case basis by EPA employees.
The National Academy of Public Administration, in their December 2001 report entitled,
"Environmental Justice in EPA Permitting: Reducing Pollution in High Risk Communities is
Integral to the Agency's Mission," provides helpful recommendations to EPA. Intended as
another information resource, this report was conducted pursuant to a cooperative agreement
with the Office of Environmental Justice.
1.3 ORGANIZATION OF THIS TOOLKIT
This Toolkit provides both a framework for understanding environmental justice issues,
and approaches and tools for addressing current and future allegations of environmental injustice.
The subsequent chapters are organized as follows:
Chapter 2: The Statutory/Policy Framework for Environmental Justice provides an
overview of Executive Order 12898, and explains that the use of existing statutory and
regulatory authorities is reaffirmed in the memorandum from Administrator Whitman.
Chapter 3: Environmental Justice Indicators Framework presents the framework for an
overall systematic approach to addressing environmental justice, and introduces
"Environmental Justice Indicators" as data sources in conducting a screening assessment
of a potential environmental injustice situation.
Chapter 4: Methodology for Environmental Justice Assessment presents a systematic
approach for using readily available data to conduct an assessment of a potential
environmental injustice situation.
A comprehensive bibliography containing references used in this Toolkit is available on the
Office of Environmental Justice's Web site (www.epa.gov/compliance/environmentaljustice).
5 Id. at§ IV.B.I, pp. 5-6.
Final - November 3, 2004 Page 5
-------
Final - November 3, 2004 Page 6
-------
2. THE STATUTORY/ POLICY FRAMEWORK FOR
ENVIRONMENTAL JUSTICE
The goal of environmental justice is to ensure that all Americans are equally protected from
adverse environmental effects or impacts. A fundamental basis for EPA's environmental justice
program is Executive Order 12898, which directed federal agencies to make environmental
justice apriority. EPA's 1995 Environmental Justice Strategy further delineated the basic
principles of EPA's environmental justice program. 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.
An August 9, 2001, memorandum from former Administrator Whitman further affirms that
environmental justice is intended for all populations, that the environmental statutes provide
opportunities for addressing environmental justice, and that application of these statutes is an
important part of the Agency's environmental justice efforts. This chapter provides more detail
on each of these important elements in the program's foundation.
2.1 EXECUTIVE ORDER 12898
On February 11, 1994, the President issued Executive Order 12898, "Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income Populations," to focus
federal agencies' attention on the environmental and human health conditions in minority and/or
low-income communities with the goal of achieving environmental justice.6 The Executive
Order directs EPA and other federal agencies to make environmental justice part of their mission
to the greatest extent practicable and permitted by law.7
With respect to each federal agency's environmental justice program, the Executive Order
mandates objectives in the following areas: (1) identify disproportionately high and adverse
human health or environmental effects on minority and low income populations; (2) coordinate
research and data collection; (3) conduct public meetings; and (4) develop interagency model
projects. The Executive Order also established the Interagency Working Group on
Environmental Justice (IWG) to accomplish these objectives.
6 59 Fed. Reg. 7629 (1994).
7 Other agencies specifically identified in the Executive Order are the Department of Defense, D epartment of Health
and Human Services, Department of Housing and Urban Development, Department of Labor, Department of Agriculture,
Department of Transportation, Department of Justice, Department of the Interior, Department of Commerce, and
Department of Energy. Independent agencies are encouraged to follow the language of the Executive Order, as well.
Final - November 3, 2004 Page 7
-------
In the Presidential Memorandum accompanying the Executive Order, the President
emphasized that certain provisions of existing laws can be used to meet the environmental justice
objectives. Specifically, he 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."8
2.2 EPA'S MISSION
Because EPA is responsible for administering many of the nation's environmental laws and
regulations, the notion of ensuring equal environmental protection to minimize environmental
stressors, harms, and risks is inherent in EPA's mission. EPA's mission statement, as set forth in
the 1997 Strategic Plan, specifies that the purpose of the Agency, among other objectives, is to
ensure that:9
All Americans are protected from significant risks to human health and the
environment where they live, learn, and work;
Federal laws protecting human health and the environment are enforced fairly and
effectively;
All parts of society - communities, individuals, business, state and local
governments, tribal governments - have access to accurate information sufficient
to effectively participate in managing human health and environmental risks; and
Environmental protection contributes to making our communities and eco-systems
sustainable and economically productive.
Building upon EPA's mission statement, the Agency defines environmental justice as a
process with the goal that all people, regardless of race, color, national origin, or income, receive
fair treatment and equal environmental protection, and that all people have the opportunity for
meaningful involvement in decisions that will affect the environment and/or the health of their
community. Specifically:
8 President William J. Clinton, Memorandum for the Heads of all Departments and Agencies. Subject: Executive
Order on Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations."
9 EPA Strategic Plan. EPA/190-R-97-002 (1997), p. 55. (http://www.epa.gov/ocfopage/plan/plan.htm)
Final - November 3, 2004 Page 8
-------
Environmental Justice is 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 racial, ethnic, or socioeconomic groups,
should bear a disproportionate share of the negative environmental consequences resulting from
industrial, municipal, and commercial operations or the execution of federal, state, local, and tribal
environmental 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 decision-making process; and (4) the
decisionmakers seek out and facilitate the involvement of those potentially affected.
2.3 ADMINISTRATOR'S MEMORANDUM
On August 9, 2001, the Administrator reaffirmed EPA's commitment to achieving
environmental justice (see following pages for the memorandum in its entirety). The
memorandum specifically addresses two key principles already based in the Executive Order, the
Agency's Environmental Justice Strategy, and EPA's mission.
The first principle is that environmental justice is not necessarily limited to low-income and/or
minority populations only. The memorandum specifically states that, "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 decisionmaking
process to have a healthy environment in which to live, learn, and work." The second principle
is that the existing statutes provide the basis for addressing environmental justice concerns. The
memorandum states that, "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."
Thus, it is the responsibility of all EPA employees to help assure that environmental justice
is, in fact, secured for all communities in the way in which we administer the protective
environmental laws. The Administrator's statement regarding the use of existing laws is
consistent with the President's Memorandum accompanying Executive Order 12898, as
discussed earlier in this chapter.
Final - November 3, 2004 Page 9
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
AUG 9 2001
THE ADMINISTRATOR
MEMORANDUM
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 decisionmaking
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
Final - November 3, 2004 Page 10
-------
-2-
(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.
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.
Christine Todd Whitman
Final - November 3, 2004 Page 11
-------
2.4 ENVIRONMENTAL STATUTES
The statutes that EPA implements provide the Agency with the authority to consider and
address environmental justice concerns. These laws encompass the breadth of the Agency's
activities including setting standards,10 permitting facilities,11 making grants,12 issuing licenses or
registrations,13 and reviewing proposed actions of other federal agencies,14 states, and tribal
authorities. These laws often require the Agency to consider a variety of factors, which generally
include one or more of the following: public health;15 cumulative impacts;16 social costs;17 and
welfare18 impacts.19 Moreover, some statutory provisions, such as under the Toxic Substances
Control Act (TSCA), explicitly direct the Agency to target low-income populations for
assistance.20 Some other statutes direct the Agency to consider vulnerable populations in setting
standards.21 In all cases, how the Agency chooses to implement and enforce its authority
(whether on a case-by-case basis or through more general policy) can have substantial effects on
the achievement of environmental justice for all communities.
Legal scholars have examined EPA's statutory authorities with respect to environmental
justice and how it could be implemented in the Agency's programs. In addition, EPA's Office of
10 See, e.g., Clean Water Act section 304(a)(lb), 33 U.S.C. 1314(a)(lb).
11
See, e.g., Resource Conservation and Recovery Act, RCRA Section 3005(c)(3)
12 See, e.g., CERCLA Section 117(e) which authorizes EPA to make Technical Assistance Grants of up to $50,000
to groups of citizens affected by Superfund sites.
13 See 7 U.S.C. § 136.
14 See National Environmental Policy Act, ( NEPA), and Clean Air Act Section 309, 42 U.S.C. § 7609.
15 The National Ambient Air Quality Standards, for example, are set to protect public health with an adequate
margin of safety. Clean Air Act 42 U.S.C. § 7409(b)(l) requires the Agency to consider sensitive populations in the
establishment of these standards. See, e.g., American Lung Ass 'n v. EPA, 134 F.3d 388, 389 (D.C. Cir. 1998).
16 See, e.g., Toxic Substance Control Act, (TSCA), 15 U.S.C. § 2603(b)(2)(A).
17 See, e.g., Clean Air Act, 42 U.S.C. § 7503(a)(5).
18 See, e.g., CAA, 42 U.S.C. § 7408(a)(2) (1994).
19 See, e.g., regulations implementing the NEPA, 42 U.S.C. 4321, at 40 CFR 1408.8.
20 See TSCA 15 U.S.C. §§ 2665(a)(6), 2666(i)(2) (providing technical and grant assistance for state programs that
address radon issues in "homes of low-income persons" for such assistance).
21 See, e.g., Federal Food, Drug, and Cosmetic Act, FFDCA, 21 U.S.C. 346a; see also, Safe Drinking Water Act,
42 U.S.C. 300(g)-l.
Final - November 3, 2004 Page 12
-------
General Counsel has analyzed the various components of statutory and regulatory authorities,
applicable to permitting, under the Resource Conservation and Recovery Act (RCRA), Clean
Water Act (CWA), Safe Drinking Water Act (SDWA), and Clean Air Act (CAA) that may be
used to address environmental justice issues through permitting (this memorandum is reproduced
in this document as Appendix A).22 Before considering the use of any statutory authority
discussed in this memorandum, however, the Regional or Headquarters Office should consult the
Office of General Counsel and the appropriate program office.
Also, in accordance with a cooperative agreement with the Office of Environmental Justice,
the Environmental Law Institute researched and published "Opportunities for Advancing
Environmental Justice: An Analysis of U.S. EPA's Statutory Authorities" in November 2001.
This comprehensive report is available on the Office of Environmental Justice's Web site and
may be used as a resource for EPA employees. Prior to considering the use of any statutory
authority discussed in this publication, however, the Regional or Headquarters Office should
consult the Office of General Counsel and the appropriate program office.
Finally, the Environmental Appeals Board (EAB) reviews certain EPA actions to determine
whether the Agency has made its decisions in accordance with statutory authority and Agency
policy.23 Consistent with statutory authority and Agency policy, the EAB may consider issues
such as the adequacy of public participation, and the environmental justice analysis of effects on
minority populations and/or low-income communities.24
While the EAB has considered a range of environmental justice issues under a variety of
statutes in the permitting context, considerations involving environmental justice concerns apply
to other EPA actions, as well. These include standard setting, environmental analysis and
review of proposed actions, grant-making activity, regulatory activity, and enforcement and
compliance.
Appendix B is a non-exhaustive list of statutory provisions that EPA may be able to use to
address environmental justice concerns. This list of statutory provisions reflects possible actions
that the Agency may take, some of which might require issuing guidance from EPA Headquarters
or rulemaking before they can be used. Before these statutory authorities are used, there needs to
Memorandum from Gary S. Guzy, Office of General Counsel, to EPA Assistant Administrators Steven A.
Herman, Robert Perciasepe, Timothy Fields, Jr. and J. Charles, Fox (December 1, 2000); see also, the Environmental
Law Institute's research report entitled, "Opportunities for Advancing Environmental Justice: An Analysis of U.S. EPA
Statutory Authorities" (November 2001). (http://www.eli.org)
23 See, e.g., In re: Knauf Fiber Glass, GmbH, PSD Permit Appeal No. No. 97-PO-06, 98-3 through 20, 1999
Lexis 2, Environmental Appeals Bd., February 4, 1999; In re: Chemical Waste Management of Indiana, RCRA Appeal
Nos. 95-2 &9S-3, 6 E.A.D. 66, June 29, 1995; In re: Envotech, L.P. Milan, Michigan, Permit Nos. MI-161-1W-0002,
MI-161-1W-0003, UIC Appeal Nos. 95-2 through 95-37, 6 E.A.D. 26, February 15, 1996.
24 In re: Chemical Waste Management of Indiana, 1995 WL 395962
Final - November 3, 2004 Page 13
-------
be discussion regarding whether they should be used in any given circumstance. Questions that
need to be addressed include, but are not limited to, the following:
whether the statutory authorities will be effective;
whether the use of the statutory authorities will conflict with other
Agency activities;
what are the economic impacts;
what are the impacts on state and local government entities; or
whether there are more efficient and effective statutory
authorities that may be available.
The Agency has available to it and is using many tools in addition to the ones listed in
Appendix B. The mechanisms listed are not the only approaches available for Agency
employees to use to address environmental justice concerns. The Agency will determine which
actions it will take once all the options are considered. The Regional or Headquarters office
should contact the Office of General Counsel and the appropriate program office before
considering the use of any statutory provisions.
Final - November 3, 2004 Page 14
-------
3. ENVIRONMENTAL JUSTICE INDICATORS
FRAMEWORK
This chapter presents the various elements that comprise a suggested or potential framework
for an overall environmental justice assessment methodology. Specifically, Section 3.1 provides
an overview of a systematic approach or methodology that can be used to assess potential
allegations of environmental injustice. Section 3.2 introduces the concept of using certain
"indicators" to evaluate environmental justice situations. More detailed descriptions of these
environmental justice indicators, and potential data sources, are provided in Section 3.3. Chapter
4 then consolidates these pieces in a more descriptive analysis of how the indicators can be used
within the various components of the methodology.
The purpose of providing this framework is to help achieve a common understanding of
how Environmental Justice Coordinators and other staff view and approach potential
environmental justice situations within the programs, policies, and activities for which they have
responsibility. In this document, the terms programs, policies, and activities mean all projects,
actions, programs, policies, and activities that adversely affect human health and the
environment, and which are undertaken or approved by EPA. These include but are not limited
to permits, licenses, and financial assistance provided by EPA.
However, the decision on whether and how to use the tools and the methodology presented
in this document should be made on a case-by-case basis. For example, in some situations, the
methodology may present a starting point for those just beginning to analyze a potential situation.
In other cases, a preliminary analysis may have already been conducted, (e.g., as part of a
permitting process); as such, staff may choose to use components of the methodology as
necessary to further clarify their assessment. In some cases, a different methodology may be
appropriate. Implementation of the methodology and the specific indicators can be adapted and
modified as necessary to most appropriately fit the situation at hand.
3.1 OVERVIEW OF ENVIRONMENTAL JUSTICE ASSESSMENT
METHODOLOGY
The environmental justice assessment framework is a basic methodology (described below
in Section 3.1.1 and in Exhibit 3-1) that can be carried out in tiered phases (described below in
Section 3.1.2). In the absence of any other preliminary assessment, the methodology can be
carried out initially at a screening level, using readily available information to provide qualitative
answers to several questions. The assessment may then proceed beyond the screening level
based on such factors as the relative significance of environmental justice issues identified and
Agency resources and priorities. The Refined Assessment usually involves additional data
collection (including site-specific information) and more quantitative analyses.
Final - November 3, 2004 Page 15
-------
Within the context of this suggested approach the Agency uses the following definitions
when conducting environmental justice assessments:
Affected area or community of concern: The affected area or community
of concern is the geographic area of analysis that the proposed project or
action will or may have an effect on.
Adverse effect or impact: Adverse effect or impact is a term used to
describe the entire compendium of "significant" (as defined under the
National Environmental Policy Act) individual or cumulative human
health or environmental effects or impacts which may result from a
proposed project or action. Examples of adverse effects or impacts
include but are not limited to:
Bodily impairment, infirmity, illness, or death;
Air, noise, soil, and water pollution or contamination;
Destruction or disruption of man-made or natural resources;
Destruction or disruption of aesthetic values;
Destruction or disruption of community cohesion or a community's
economic vitality;
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; and
Increased traffic congestion, isolation, exclusion, or separation of
individuals within a community or from a broader community.
Disproportionately high and adverse effects or impacts: Means an adverse
effect or impact that: (1) is predominately borne by any segment of the
population, including, for example, a minority population and/or a low-
income population; or (2) will be suffered by a minority population and/or
low-income population and is appreciably more severe or greater in
magnitude than the adverse effect or impact that will be suffered by a non-
minority population and/or non-low-income population.
Low-Income: Means a person whose median household income is at or
below the U.S. Department of Health and Human Services poverty
guidelines.
Low-Income Population: Means any readily identifiable group of low-
Final - November 3, 2004 Page 16
-------
income persons who live in geographic proximity, and, if circumstances
warrant, geographically dispersed/transient persons (such as migrant farm
workers or Native Americans) who will be similarly affected by a
proposed project or action, or EPA program, policy, or activity.
Minority: Means a person, as defined by the U.S. Bureau of Census, who
is a: (1) Black American (a person having origins in any of the black racial
groups of Africa); (2) Hispanic person (a person of Mexican, Puerto
Rican, Cuban, Central or South American, or other Spanish culture or
origin, regardless of race); (3) Asian American or Pacific Islander (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 or Alaskan Native (a person having origins in any of the
original people of North America and maintains cultural identification
through tribal affiliation or community recognition).
Minority Population: Means any readily identifiable group of minority
persons who live in geographic proximity, and, if circumstances warrant,
geographically dispersed/transient persons (such as migrant farm workers
or Native Americans) who will be similarly affected by a proposed project
or action, or EPA program, policy, or activity.
Reference community: Means another community of equal size, the
surrounding county, the region or metropolitan statistical area, the state, or
the entire United States.
Within the context of this suggested approach the term "geographic areas" instead of the
term "environmental justice communities" as follows when conducting environmental justice
assessments:
Geographic areas where any readily identifiable group of minority persons
reside at a higher percentage than the state average minority populations
which are defined by the U.S. Bureau of Census as individuals who are
members of the following population groups: American Indian or Alaskan
Native; Asian American or Pacific Islander; Black American, not of
Hispanic origin; or Hispanic. This definition includes, if circumstances
warrant, geographically dispersed/transient persons who may not be
accounted for in census data. These populations include seasonal, migrant
farm workers. Sources of information regarding small pockets of minority
populations can be obtained through local churches, state and local
colleges, community centers, and expanded public participation efforts.
Final - November 3, 2004 Page 17
-------
Geographic areas where any readily identifiable group of individuals,
whose median household income is at or below the U.S. Department of
Health and Human Services poverty guidelines, who reside at a higher
percentage than the state average. Because the U.S. Bureau of Census data
related to poverty is only gathered every 10 years and may not provide the
level of detail required for analysis, local sources of information (e.g.,
university, local or state departments of economic development) can also
be used to augment census data.
Geographic areas where the percentage of children (6 years of age and
younger) and/or older individuals (65 years and older) reside at a higher
percentage than the state average.
3.1.1 Overview of the Methodology
An environmental justice assessment can be carried out using the following basic
methodology, described below. This methodology may be conducted in conjunction with, or
as a supplement to, the programmatic analysis that occurs within existing environmental
programs (e.g., RCRA permitting process). In the absence of a specific decisionmaking
process (e.g., in response to an allegation from a community), the methodology maybe
implemented independently. [Region 5, 9]
Exhibit 3-1 below provides a schematic overview of the methodology, which consists of the
following general phases:
Phase 1 - Problem Formulation
Phase 2 - Data Collection
Phase 3 - Assessment of the Potential for "Adverse" Environmental and
Human Health Effects or Impacts
Phase 4 - Assessment of the Potential for "Disproportionately High and
Adverse" Effects or Impacts
Final - November 3, 2004 Page 18
-------
Exhibit 3-1: Methodology for Assessing Potential Allegations of Environmental Injustice
C ontext
Scope
Participants
Indicators -
Inputs
Formulate problem
Inputs
Endp oints
Community definitions
Conceptual model
_£
Identify environmental
sources of stress ami
Mkehliood of exposure
1
Collect data on
community of concern
and reference community
Assess potential for adverse environmental
aiul hmnaii health impac ts
De leiiniiie w lie flier imp at ts
are disproportionate
Determine actim
Use of the specific components of this methodology is intended to be flexible. Thus, each
situation may differ in the order in which the data collection components are addressed (e.g.,
collecting information on the community of concern prior to assessing the environmental effects
or impacts), the quality and quantity of data used, the level of effort expended, and in many
cases, the greater certainty with respect to the conclusions that can be reached. However, it is
important that appropriate data collection be completed before determining whether an
environmental injustice situation has occurred or is likely to occur. In particular, a situation
should not be excluded from further consideration based solely on demographics (i.e., if a
community does not appear to be significantly lower in income or higher in minorities than the
comparison community) - since the goal of environmental justice is to ensure equal protection
for all populations. The defining issue is, rather, whether a particular community is likely to
suffer from disproportionately greater environmental effects or impacts, regardless of its
demographics.
Final - November 3, 2004
Page 19
-------
Following is a discussion of the various phases of an environmental justice assessment:
Phase 1; Problem Formulation. Problem formulation establishes the context, management
goals, and scope of the entire assessment. It also identifies the participants in the process (e.g.,
the Assessment Team),25 the endpoints that are going to be assessed to inform the
decisionmaking process, and which environmental justice indicators (see Section 3.2 below) will
be used to assess those endpoints. The process includes a conceptual model of the problem and
an analysis plan for the assessment. During this step, an affected area also is identified in at least
a general way, as are potential reference communities or statistical sources (e.g., national or state-
wide values). See Section 4.1 of Chapter 4 for more detailed guidance on this phase.
Phase 2: Data Collection. The purpose of this phase is to collect the situation-specific data
needed to conduct the analysis of whether the affected area is likely to or is already experiencing
disproportionately high and adverse effects or impacts from the situation. In this phase, two
types of data are collected: (1) Data on the environmental sources of stress and likelihood of
exposure and (2) data on the affected area and the reference community. Section 4.2 of Chapter
4 provides more detailed guidance on collecting these data, which consist of:
Identification of Environmental Sources of Stress and Likelihood of Exposure. Information
is collected to determine the sources of environmental pressures or stress that might affect
the community of concern that are different from or additional to those affecting the
reference community. This includes an assessment of existing or likely future additional
pressures or sources of stress and their proximity to the community (compared with the
reference community). All sources of stress that might stem from a decision or activity
should be identified. In addition, the other pressures to which the community already is
subjected should be identified. Examples of existing sources of stress include, for example,
abandoned hazardous waste sites, urban runoff, and other permitted facilities. In both
existing situations and proposed actions, identifying the affected area - the geographic area
of analysis that the existing or proposed project or action will or may affect - is critical.
Indicators of environmental sources of stress are discussed in Section 3.2.
Collection of Data on Affected Area and Reference Community. Health-related,
demographic, social, and economic data on the affected area and on the potential reference
communities are collected. This information will be used to compare impacts on the
affected area in comparison with the reference community. At this stage in the assessment,
it is important to define the affected area more rigorously than was done during problem
formulation. Generally speaking, the geographic boundaries for a potentially affected
community will be defined by the problem (e.g., defining an impact zone around a
hazardous waste site or permitted facility) or by the community itself. The information
25 Inmost cases, an assessment will be conducted by individual staff (e.g., the Environmental Justice Coordinator)
with possible collaboration with other, program staff, technical staff, legal counsel, etc.
Final-November 3, 2004 Page 20
-------
collected also includes other aspects of the community that directly or indirectly affect the
community's ability to respond to environmental stress (e.g., by participating in the
decisionmaking process). The rationale for selecting the reference community should be
documented.
Phase 3: Assessment of the Potential for "Adverse" Environmental and Human Health
Effects or Impacts. In this phase, the Assessment Team uses the information collected above to
determine whether the proposed actions or existing situation, either alone or in combination with
other sources of stress in the environment, might cause adverse impacts on the environment in
which the community members live or work and on the health and welfare of community
members. Whether addressing these adverse impacts is appropriate or actionable by EPA is
dependent upon the existing environmental laws and their implementing regulations governing
EPA's authorities. Section 4.3 of Chapter 4 provides more detailed guidance on carrying out this
analysis, which consists of:
Assessment of Potential for "Adverse" Environmental Effects or Impacts. For
environmental impacts, this analysis may involve using analytical tools to assess
the transport and fate of contaminants in the environment.
Assessment of the Potential for "Adverse" Human Health Effects or Impacts.
Using the data collected on the environmental sources, this analysis is conducted
to determine whether the environmental stresses or pressures could be of
sufficient magnitude to potentially cause adverse effects or impacts or on the local
population's health or welfare.
Phase 4: Assessment of the Potential for "Disproportionately High and Adverse"
Effects or Impacts. The final question to determine the extent of an environmental justice
situation is whether the potential for adverse effects on the environment or human health and
welfare is disproportionately high in the affected area compared with the reference community.
This involves a comparison of the likelihood, magnitude, and severity of potential effects in the
affected area with the likelihood, magnitude, and severity of potential effects in the reference
population(s). See Section 4.6 of Chapter 4 for more detailed guidance on carrying out this
analysis.
Historically, environmental justice concerns have focused on populations considered to be
minority and/or low-income; however, since environmental justice is defined as the fair treatment
of all people, this characterization would not necessarily cause an assessment to be considered
"closed" if the population were not considered minority or low-income area. The final decision
should be, rather, whether the affected area is likely to or is already impacted by greater adverse
effects than the reference community. In many cases, a community that is predominately low-
income or minority may have the characteristics that will increase its vulnerability or sensitivity
to environmental impacts. However, to the extent possible, the actual health indicators and other
Final-November 3, 2004 Page 21
-------
data should be collected to demonstrate how these contribute to greater adverse impacts, rather
than relying on just demographic data. Furthermore, some demographic and other social data
will be useful in determining how to address the situation (e.g., to increase public participation).
3.1.2 Tiered Approach to Assessments
A tiered approach means that the environmental justice assessment can be conducted in
steps. The environmental justice assessment framework is tiered so that the process is cost-
effective and that subsequent efforts can be focused on situations requiring greater attention from
EPA. For example, initial results from the first assessment may indicate that the situation is
more appropriately handled under the lead of another federal department/agency. The initial tier
is referred to as "The Screening-Level Assessment," while the subsequent (or additional) tier is
called "The Refined Assessment."
The Screening-Level Assessment consists of the basic methodology and begins with readily
available information. For example, the Assessment Team might start with the text of an
allegation of an injustice, a talk with its author, and a walking tour of the area at issue talking
with one or more stakeholders familiar with the situation. During the screening assessment, the
team members look for qualitative information on a wide range of parameters that might indicate
the nature of the situation. As described in Section 3.2, these parameters are known as
Environmental Justice Indicators.
The purpose of the Screening-Level Assessment is two-fold. First, in some cases, it might
be possible to demonstrate at the end of the screening that the problem is not a significant
environmental justice concern or not one in which EPA should take the lead. For example, at
this stage of the assessment, the Assessment Team might be able to conclude that a proposed
activity or an existing stress is unlikely to cause any adverse effects on the environment (e.g.,
water quality standards would not be or are not exceeded) or pose risks to human health (e.g.,
estimated cancer risk less than one in one million). In addition, the Assessment Team may
conclude that the situation is more appropriately addressed under the lead of another federal,
state, or local government agency. If this is the case, EPA's environmental justice assessment
could stop at the end of the screening analysis. Second, for those cases in which the screening
indicates a possible environmental justice concern for which EPA could be of assistance, the
screening assessment generally helps to narrow the focus of the more Refined Assessment to
those issues that the screen indicated are most important.
If, at the end of the Screening-Level Assessment, the decision is that an environmental
injustice situation might exist and that EPA might have a role to play in alleviating the injustice,
the EPA decisionmaker could choose to conduct a Refined Assessment. The phases in the
Refined Assessment are similar to the phases in the Screening-Level Assessment, but more
quantitative data are used and more certain answers to the questions generally are produced. The
next tier of the assessment would start with Phase 1 of the four-phase process based on the
Final-November 3, 2004 Page 22
-------
information gleaned from the previous tier or Screening-Level Assessment. During Phase 1 of a
more focused assessment, information obtained from the Screening-Level Assessment would be
used to further develop the conceptual model and analysis plan. In addition, the decisionmaker
should review what level of effort is likely to be commensurate with the decision at hand. That
information can be used to constrain the scope of the assessment.
In the Refined Assessment, there is an additional decision to be made at the end of Phase 4
compared with the Screening-Level Assessment. That consideration is whether or not the
information is adequate to make the decisions outlined during Problem Formulation. If the
decisionmaker concludes that the analyses to this point are inadequate to make and document a
decision, the assessment should proceed through an additional tier.
Tier One
Screening-Level Assessment
Purpose is to determine whether EPA should:
(1) conduct further Refined Assessment, (2)
refer matter to another federal, tribal, or state
entity, or (3) find no environmental injustice
Screening-Level Assessment should define the
scope of the Refined Assessment
Decision is based on readily available
information
Tier Two
Refined Assessment
Purpose is to determine: (1) whether adverse
impacts or effects exist and (2) whether there
are disproportionately high adverse impacts or
effects (environmental injustice)
Refined Assessment should determine
appropriate EPA action
Decision is based on detailed, quantitative
information
When moving to another tier, it is important to focus on those portions of the assessment or
indicators that were the most uncertain at the end of the previous tier. In many cases, it might be
clear that the uncertainty is unacceptably high in only one indicator or element of the analysis. In
other cases, the confidence limits on the estimates of risk to the community of concern might
overlap the confidence limits on the estimates of risk to the reference community, so that one
cannot determine if the risks to the community of concern are disproportionately higher. In such
cases, it often is useful to conduct a sensitivity analysis to determine which indicator(s) or
element(s) of the analysis appear to be driving the results. The Assessment Team can then focus
Phase 1 of the higher tier of the assessment on reducing the uncertainty in those element(s) of the
assessment.
By the end of the process, the Assessment Team should be able to determine whether or not
the potential or existing impacts to the community of concern are disproportionately high relative
to one or more reference communities. If the effects or impacts are not disproportionately high in
the community of concern, the situation may not warrant a more detailed assessment. That is not
to say that a problem does not exist, just that the effects or impacts are evenly spread (i.e., all
Final - November 3, 2004
Page 23
-------
surrounding communities are equally affected) and needs to be addressed from that perspective,
not with an emphasis on environmental justice. For EPA, there is an additional decision to be
made by the end of Phase 4: whether or not this is an environmental justice situation in which
EPA can be of assistance. If the answer to that question is no, the responsibility for further
assessment and definition of solutions might be shifted to those entities capable of taking the
actions needed to address the injustice.
3.2 ENVIRONMENTAL JUSTICE INDICATORS FRAMEWORK
As indicated in the previous chapter, environmental justice means that all people, regardless
of race, color, national origin, or income, receive fair treatment and equal environmental
protection, and have the opportunity for meaningful involvement in decisions that will affect the
environment and/or the health of their community. Because of the broad and encompassing
nature of this definition, there are numerous ways to interpret each aspect of the definition of
environmental justice. Historically, decisionmakers (e.g., permitting agencies) have focused on
ecological and health impacts of environmental actions, but may not have considered the
cumulative nature of such impacts (i.e., health threats coming from more than one source).
Further, decisionmakers have usually not considered such factors as quality of life (e.g., noise,
odors, traffic) and aesthetic, cultural, social, and economic impacts (e.g., reduced property
values, lost wages, and medical bills), sensitive subpopulations (i.e., pre-existing illness or
disease in a community), and synergistic impacts (e.g., two pollutants combined together to
create a more toxic substance which poses a greater health risk), which, although not traditionally
issues addressed by EPA, maybe the issues most important to minority and/or low-income
communities.
However, many of these factors are considered by federal agencies, including EPA, in the
decisionmaking process in accordance with the National Environmental Policy Act (NEPA).26
The Council of Environmental Quality (CEQ) is responsible for oversight of federal agency
compliance with NEPA. And, CEQ has issued guidance to assist federal agencies in order to
ensure that environmental justice concerns are both identified and addressed.27 Among other
things, CEQ suggested that federal agencies consider, for example, the following principles as
they incorporate environmental justice into the NEPA process:
Agencies should consider relevant public health and industry data concerning the
potential for multiple exposures or cumulative exposure to human health or
environmental hazards in the affected population, as well as historical patterns of
exposure to environmental hazards, to the extent that such information is readily
available.
26 National Environmental Policy Act, 40 C.F.R. § 1500.1
27 Council of Environmental Quality, "Environmental Justice: Guidance Under the National Environmental Policy
Act," (December 10, 1997) (http://ceq.eh.doe.gov/nepa/regs/ei/ei.pdf)
Final-November 3, 2004 Page 24
-------
Agencies should recognize "the interrelated cultural, social, occupational,
historical, or economic factors that may amplify the natural and physical
environmental effects of a proposed action." These factors should include the
physical sensitivity of a community or population to particular impacts, the effect
of any disruption of the community structure associated with the proposed action,
and the nature and degree of the impact on the community's physical and social
structure.28
EPA, in turn, has issued its own guidance to assist Agency personnel in incorporating
environmental justice into the preparation of environmental impact statements and environmental
assessments under NEPA using these same factors.29
The purpose of this section is to introduce the concept of "Environmental Justice
Indicators" as data that, when examined together, provide a comprehensive picture of a
community's economic, social, environmental, and health level status or well-being. The Office
of Environmental Justice recognizes that in most situations, only a fraction of these indicators
will actually be used in assessment. However, the Office of Environmental Justice hopes that
portraying the full universe of potential indicators will help inspire EPA staff to consider factors
that might not otherwise have been contemplated. This may help ensure that issues and concerns
important to the community are not left out of the analysis of potential environmental justice
impacts.
3.2.1 Background on Indicators
Indicators are data that highlight some aspect of current conditions and trends in the
environment or within a community or geographic area. They provide information that can be
used in an environmental justice assessment to supplement, as appropriate, information more
specific to the environmental decision being evaluated (e.g., impacts from a facility being sited or
permitted, or potential impacts from a proposed rule) and data required by the statutes and
regulations that apply to the particular situation.
EPA defines and applies various environmental performance indicators in its programs,
initiatives, and partnerships. As part of the National Environmental Performance Partnership
System (NEPPS), EPA and the states have jointly agreed to increase the use of goals and
indicators, self-assessments, joint evaluations, and other activities to improve progress toward
CEQ Environmental Justice Guidance at 9.
29 EPA Office of Federal Activities, "Final Guidance for Incorporating Environmental Justice Concerns in EPA's
NEPA Compliance Analyses." (April 1998) (http://es.epa.gov/oeca/ofa/eiepa.html)
Final-November 3, 2004 Page 25
-------
reaching environmental goals.30 EPA agreed to develop a limited number of program and multi-
media performance indicators on which each state will report. These "core" indicators: (1) have
quantifiable results; (2) are not necessarily annual measurements; (3) are linked directly to
environmental objectives; (4) have a preferred measure for moving toward results-oriented
action; (5) are results-driven; and (6) reflect changes in the state of the ambient environment,
changes in exposure, or changes in human health or ecological structure or function.31
For purposes of identifying indicators that can be used to evaluate potential environmental
justice impacts, the Office of Environmental Justice adapted the work on
"Economic/Environmental/Social Indicators" being developed by the international Organization
for Economic Co-operation and Development (OECD).32 The OECD Working Group on the
State of the Environment (of which the United States is a member, represented by the Office of
Environmental Justice) is developing "Economic/Environmental/ Social Indicators" that will be
used to review the relative status of member countries with respect to the issue of environmental
justice.33
The Office of Environmental Justice has adapted the OECD's emerging
"Economic/Environmental/Social Indicators" for use in the framework for assessing the overall
"health" of a community and identifying conditions that suggest that environmental injustices are
occurring or may likely occur. Specifically, the Office of Environmental Justice has modified or
supplemented the OECD's indicators, as appropriate, to be relevant to circumstances that occur
in U.S. communities, and has categorized these indicators into four broad areas: Environmental,
Health, Economic, and Social Indicators. Descriptions of data that would be collected under
each category are described in Section 3.2.2 below.
In developing these indicators as appropriate measures of environmental injustice, the Office
of Environmental Justice used certain selection criteria. Specifically, the Office of
Environmental Justice ensured that the indicators met as many of the following criteria as
possible:
30 EP A's Office of State and Local Relations. "Background on the National Environmental Performance Partnership
System." October 20, 1999. (http://www.epa.gov/ocirpage/pps/fal.htm)
31 EPA's Office of State and Local Relations. "Definitions and Key Characteristics of Key Terms." December 20,
1996. (http://www.epa.gov/ocirpage/pps/chart.html)
32 The OECD was created on December 14, 1960, and is headquartered in Paris. The OECD replaced the
Organization for European Economic Co-operation, which had been created in 1948 in the context of the Marshall Plan
launched by the U.S. Currently, the OECD comprises 25 member countries, of which the United States was one of the
original member countries.
33 OECD Working Group on the State of the Environment. "Indicators for the Second Cycle of Environmental
Performance Reviews: Discussion Paper." Paris, 1999.
Final-November 3, 2004 Page 26
-------
Criterion 1: Policy Relevance Each Environmental Justice Indicator should:
Provide a representative picture of the conditions within a community, pressures
on the community, and the government's responses to those pressures;
Provide a basis for comparison between various geographic units of analyses:
states, cities, counties, census blocks, or census tracts;
Be applicable to local and regional environmental and/or public health issues of
national significance;
Have a threshold or reference value against which to compare it, so that users are
able to assess the significance of the values associated with it; and
Be simple, easy to interpret, and able to show trends over time.
Criterion 2: Analytical Soundness Each Environmental Justice Indicator should:
Be well-founded in technical, empirical, theoretical, and scientific terms;
Be based on national standards and consensus about its validity as a measuring
tool;
Lend itself to being linked to computer modeling and forecasting; and
Lend itself to being incorporated into data information systems.
Criterion 3: Measurability The data required to support each Environmental Justice
Indicator should be:
Quantifiable, verifiable, and time-specific;
Readily available or made available at a reasonable cost/benefit ratio;
Adequately documented and of known quantity; and
Updated at regular intervals in accordance with reliable research procedures.
3.2.2 Environmental Justice Indicators Framework
As mentioned above, the Office of Environmental Justice organized the Environmental
Justice Indicators into four categories to best capture all impacts or stressors on any given
community: Environmental, Health, Economic, and Social Indicators. Exhibit 3-2 depicts the
interaction of these elements.
Final-November 3, 2004 Page 27
-------
These four categories represent the areas in which conditions may occur that cause or
exacerbate environmental injustice situations. In addition, a community's level of public
participation and access to environmental information can diminish or augment environmental
injustices. Each category includes several different sets of indicators to assist in organizing the
data collection and assessment process.
Environmental Indicators
Environmental Indicators provide data about the physical attributes of a community,
including potential sources of environmental stressors, the relative levels of stressors to which
community residents are being exposed, and adverse impacts that may have resulted. Specific
types of data that could be considered Environmental Indicators include:
Sources of stress placed on the community - Some Environmental Indicators may
provide data on the potential sources of stress, such as proximity to facilities
emitting environmental pollutants or other environmental sources. Data on these
stressors could be used to estimate the potential for negative environmental
impacts on the community. Regardless of the quantity of contaminants being
released, it is possible that a community that hosts regulated facilities is subject to
greater overall environmental stress, even if all of the facilities are operating
within permit conditions.
Potential exposure to stressors - Some Environmental Indicators may provide data
on ways in which the community may be exposed to sources of stress. An
example would be the level of contamination that results from an environmental
action (e.g. a new permit for a facility). Exposure indicators may also measure
other factors that adversely affect the quality of life, including nuisance concerns
such as odor, noise, and dust; degradation of aesthetics; and loss of open space
and other amenities.
Environmental conditions resulting from stressors - A subset of Environmental
Indicators may provide data on the quality of the community's environment,
including the quality of air, water, and other environmental media to which the
community is exposed.
Environmental vulnerability - Certain Environmental Indicators may provide
general information about the physical environment itself and usually are
collected to be analyzed in conjunction with other data. For example, certain
features of the physical environment, (such as the presence of a mountain range
and its effect on air quality) can increase or decrease the likelihood or magnitude
of impacts from environmental contamination.
Final-November 3, 2004 Page 28
-------
Health Indicators
Health Indicators provide information on the general health of the community's residents
and their ability to cope with environmental stresses. Some environmental stresses may pose
greater risks to populations with health sensitivities that result from age (e.g., children, the
elderly), genetics, dietary deficiencies, health impairments, lifestyle choices (e.g., smoking), and
cumulative exposure to substances during daily activities. By examining morbidity and mortality
of subsets of the population, EPA may be able to detect the presence of environmental stresses.
Specific types of data that could be considered Health Indicators include:
Existing health conditions - Some health-related statistics, such as morbidity, can
be used to assess the general health of community residents. In the environmental
justice analysis, such information may be used to assess the likelihood that
residents have been exposed to environmental contaminants or pathogens.
However, these indicators should be considered within the context of other factors
(such as occupational exposure, smoking, or poor diet) that can be responsible for
the same or similar health effects. Nevertheless, even if not caused by
environmental contamination, the presence of health problems may indicate that
community residents might be less resistant to pathogens or more sensitive to
chemical contaminants than residents in communities exhibiting fewer health
problems.
Health impacts from environmental stressors - Certain Health Indicators may
reflect whether a subset of the population has health sensitivities (i.e., show
adverse effects to toxic substances at lower doses, or show more severe or
frequent adverse effects to exposure than the average person) or might be highly
exposed (i.e., have cumulative exposure from multiple sources or pathways, food
consumption patterns, or cultural or behavioral patterns).
Social Indicators
Social indicators reveal trends about the general socio-demographic aspects of the
community. As part of the assessment methodology, EPA would collect general demographics
information such as race, ethnicity, etc. However, there are a number of additional Social
Indicators that while difficult to measure, are nonetheless useful in helping to characterize the
community. Specific types of data that could be collected as Social Indicators include:
Vulnerability to exposure - There is a wide range of Social Indicators that can
provide insight into whether a certain subpopulation is more vulnerable to
exposure because of limited access to certain amenities (e.g., hospitals, safe
drinking water, sewage treatment, public transportation) or because of certain
behaviors. Access to amenities may affect the level of exposure or ability to
offset impacts of exposure. Personal behavior, such as smoking, may make an
Final-November 3, 2004 Page 29
-------
individual more vulnerable to the effects of exposure.
Government response actions - Certain data regarding government actions can
provide information about the level of commitment shown by the local or state
government in encouraging meaningful public participation in the decisionmaking
process. A key component of this is educating the community on the issues at
hand. In addition, these indicators can provide information about the interaction
between the community and the governing agencies that are responsible for
making environmentally-related decisions.
Community participation - Some Social Indicators can measure the ability of the
population to gain access to information or to meaningfully participate in the
decisionmaking process. In addition, they can measure whether and how well the
community appears to be able to participate in the environmental decisionmaking
process.
Economic Indicators
Economic indicators reveal trends about the community's economic well-being, including
the extent to which the local economy relies on the operation of the facility that may be the focus
of the environmental injustice allegation. Assessing income levels is important to an
environmental justice assessment, because low-income populations may be more vulnerable than
the general population to adverse environmental risks and impacts (i.e., because of income based
health disparities, etc...). Some Economic Indicators provide data about the economic
relationship between the community residents and the entities that might be responsible for
exposing the community to environmental stressors. Such information is important to the
decisionmaking process should an environmental injustice situation be identified.
3.3 ENVIRONMENTAL JUSTICE INDICATORS AND DATA SOURCES
As mentioned above, the Office of Environmental Justice recognizes that only certain
Environmental Justice Indicators will be relevant for any given situation and that the overall
assessment process may be affected by limitations in resources, time, or data availability.
Furthermore, which indicators are most useful for a community or an assessment can also change
over time as knowledge increases and as perceptions of environmental justice problems continue
to evolve. For example, indicators used during a Screening-Level Assessment may not
necessarily be appropriate for a Refined Assessment. In other cases, it may be appropriate to
assess an indicator qualitatively at the Screening-Level and more quantitatively in the Refined
Assessment.
Nonetheless, different indicators can reveal trends or conditions related to the same problem,
and selection of several indicators related to the same problem can provide a more clear picture
Final - November 3, 2004 Page 30
-------
of the relationships among actions, environmental changes, and resulting effects on the quality of
life. For example, when assessing the air quality of a community, the Environmental Justice
Assessment Team might examine the number of air permits in the area, the level of emissions to
the air, and current ambient concentrations of air pollutants to better understand the reasons for
the ambient air quality problems in that community. In addition, the Assessment Team might
also examine indicators that reflect attributes of the landscape that can influence the movement
of contaminants in the environment. For example, mountain ranges can be responsible for
thermal air inversions that prevent air contaminants from dispersing away from a particular area.
The following subsections describe some of the key indicators that the Office of
Environmental Justice has identified for use in assessing a community's conditions in each of the
four broad categories. Each subsection also identifies possible data sources for these indicators
when used for the Screening-Level Assessment (S) and when used for the Refined Assessment
(R). Appropriate data sources also depend on the scale of the assessment (i.e., how the
community of concern and reference community are identified). It should be understood by staff
that data sources have strengths, limitations, and weaknesses. Thus, it may be appropriate to
confer with others who might be more keenly aware of the databases prior to making final
decisions.
3.3.1 Environmental Indicators - Examples and Data Sources
Environmental Indicators provide data about the physical attributes of a community,
including potential sources of environmental stress and the relative levels of stress to which
community residents are being exposed. As described in Section 3.2.1 above, Environmental
Indicators can be grouped into the following subcategories: (1) sources of stress; (2) potential
exposure to stress; (3) environmental conditions resulting from stress; and (4) environmental
vulnerability. The following sections provide examples of each type of Environmental Indicator,
specify whether the particular example would be used during a Screening-Level or Refined
Assessment (or both), and describe why that indicator may be relevant to an environmental
injustice situation. The table following each set of descriptions provides potential sources of
information for the indicators.
Examples of Indicators on Sources of Stress:
Some Environmental Indicators can provide data on the potential sources of stress, which
could be used to measure the potential for negative environmental impacts on the community.
Examples include:
Number of environmentally regulated facilities within a community (S) -
Regardless of the quantity and characteristics of contaminants being released, it is
possible that a community that hosts more regulated facilities is subject to a
greater overall environmental stress, even if all of the facilities are operating
within permit conditions.
Final - November 3, 2004 Page 31
-------
Length of time regulated facilities have operated within a community (S) - Even
without information on current and past permit exceedances, it still is possible to
compare communities with respect to the length of time that regulated facilities
have been in operation in the community. The longer that a facility has been
operating, the more time that has been available for accidental releases and for the
accumulation of persistent contaminants from steady low-level releases. In
addition, facilities which began operating a number of years ago may not have
been subject to as stringent (or any) regulations concerning pollution prevention
as newer facilities.
Number of current and past permit exceedances by regulated facilities (S,R)-
Examining current (within the last several years) permit exceedances can provide
a general indication of how much pollution the community is being exposed to
and what contaminants, in particular, are being emitted. Examining past permit
exceedances (from the life of the regulated facility) could indicate risks from
possible past exposures and risks from cumulative exposures. For example, if a
community had hosted several industries that frequently exceeded their permit
limits, that community would possibly have received more exposure than
communities that had hosted fewer such industries.
Number or extent of non-point sources of pollution (S,R) - Regulated facilities are
not the only sources of contaminants released into the environment; leaching and
stormwater runoff from urban and agricultural areas can contribute significantly to
the loading of contaminants in ground and surface water. Similarly, localized
sources of air pollution such as highways, transportation corridors, or dust sources
can add increased burdens to the environment.
Noise levels (S) - Environmental stresses include noise from trains, trucks, nearby
highways, airports, and other sources. Although these factors may not always be
regulated, their impact on the community may have an effect on how well the
community handles other, regulated, environmental burdens.
Final - November 3, 2004 Page 32
-------
Table 3-1: Data Sources for Indicators of Sources of Stress
Name of Indicator
Number of
enviro nme ntally
regulated facilities
within a community
Length of time
regulated facilities
have operated
within a community
Number of current
and past permit
exceedances by
those regulated
facilities
Number or extent of
non-point sources of
pollution
Noise levels
Screening or
Refined Analyses
S
S
S,R
S,R
S
Possible Data Sources
EPA's Envirofacts - database that searches 14 data systems,
including AFS, TRIS, RCRIS, CERCLIS, BRS, SDWIS, RMP,
FINDS, and PCS, for the locations of regulated facilities.
http://www.epa.gov/enviro/html/fii/fii query iava.html
Integrated Data for Enforcement Analysis (IDEA) - EPA's Office
of Enforcement and Compliance data retrieval and integration
system that provides access to data on compliance history of
regulated facilities, pulling from AIRS, CERCLIS, RCRIS, TRIS,
and others; requires user registration.
http://www.epa.gov/compliance/planning/data/multimedia/idea/inde
x.html
The Right to Know Network -- provides access to databases with
data on permit exceedances, including RCRIS and PCS.
http://www.rtk.net/rcrissearch.html
Integrated Data for Enforcement Analysis (IDEA) - EPA's Office
of Enforcement and Compliance data retrieval and integration
system that provides access to data on compliance history of
regulated facilities, pulling from AIRS, CERCLIS, RCRIS, TRIS,
and others; requires user registration.
http://www.epa.gov/compliance/planning/data/multimedia/idea/inde
x.html
EPA's Office of Water maintains a Nonpoint Source Site with
techniques on how to manage nonpoint source pollution.
http://www.epa.gov/owow/NPS/
EPA's archives - provides historical resources about noise
pollution from its Office of Noise Abatement and Control, which
closed in 1992.
http://www.epa.gov/ngispgm3/nrmp/historv/collection/aid21.htm
Additional research may be needed for up-to-date data at all levels.
Examples of Indicators of Potential Exposure to Stresses
At the screening level, enumeration and proximity of sources of stresses to the population of
concern can be mapped to identify potential exposure (as described in Section 4.2 of this
Toolkit). For more refined analyses, more quantitative information related to ambient conditions
and actual exposures could be assessed.
Final - November 3, 2004
Page 33
-------
Proximity of regulated facilities to the majority of the community's population
(S)- In general, populations residing closer to regulated facilities are more likely to
be exposed to contaminants if contaminants were to be released from those
facilities. Thus, "proximity" and "majority" are relative terms used to assess
whether a particular community may be affected by greater environmental burdens
than other communities. In addition, those living adjacent to such facilities might
experience other stresses, such as noise or an unpleasant appearance of the
facility, which although not always regulated, should be considered when
assessing the impacts on the community as a whole.
Proximity to multiple contaminant sources (R)- With the advent of geographic
information systems (GIS) and federal and state databases detailing the locations
of different types of sources of hazardous materials (e.g., Superfund sites,
releases reported to EPA's Toxic Release Inventory, facilities that release
hazardous air pollutants (HAPs) to the environment, wastewater treatment plants,
CWA Section 303 list of impaired waters), it is possible to identify locations with
"clusters" of several different types of sources of environmental contaminants. A
GIS "snapshot" identifying geographic locations with multiple contaminant
sources in close proximity to each other often is compared with the distribution of
different subpopulations in the region to identify locations that might have
environmental justice concerns.
Potential or actual cumulative exposures across multiple locations (S,R) -
Because the health response to exposure to environmental contaminants depends
on the total exposure to the contaminants, consideration of cumulative daily
exposures, including possible exposure at home, the workplace, and school, is
important.
Potential or actual exposure to multiple stressors (S,R) - There are numerous
chemical compounds in existence today for which there is as yet no data or
limited data on their toxicity or potential to cause adverse effects in humans and
ecosystems. There are other chemicals for which some controversy exists
concerning their toxic potential or potency (e.g., dioxins, lead, mercury, Agent
Orange). It is important to remember that an assessment of a community's
potential for exposure to the well-characterized contaminants might not reflect
exposures to additional toxic substances in their environment. Moreover, the
uncertainty inherent in assessments of the toxic potency of well-studied
compounds also should be acknowledged.
Number ofbiomarkers of exposure that are evident (S,R) - For some
environmental contaminants, it is possible to assess exposure levels by sampling
the blood or other tissues of people and analyzing the tissues for the contaminant
Final - November 3, 2004 Page 34
-------
or metabolites of the contaminant. Where such data are available, they can
provide direct evidence of exposure to the contaminant, with limited possibilities
for confounding factors. The sources of the contaminants, however, cannot be
determined based on these measures alone.
Table 3-2: Data Sources for Indicators of Potential Exposure to Stresses
Name of Indicator
Screening or
Refined Analyses
Possible Data Sources
Proximity of
regulated facilities
to the majority of
the community's
population
Data sources from above indicator overlaid with US Census data on
population per square mile at county and sub-county (usually
boroughs of a city) levels, http://www.census.gov/
population/www/censusdata/densitv.html
LandView III34 -- a Windows-based desktop mapping program that
contains information about EPA-regulated sites, plus demographic
data and street-level maps from the Bureau of
the Census.
Also see US Census data for state-specific data by county, place,
census tract, block group, and Zip code.
http://www.census.gov/sdc/www
This indicator can also be viewed geographically through the
Environmental Justice Geographical Assessment Tool.
Proximity to
multiple
contaminant sources
NCHS - provides data on the percentage of people living in
counties that meet air quality standards for individual chemicals
that might be from multiple sources, by race at the national level
only, http://www.cdc.gov/nchs
Locations of facilities or geographic areas identified as potential
sources of stressors (see first group of indicators, e.g., RCRIS,
CERCLIS, AIRS) that are considered to be sources of actual
environmental releases (e.g., permit violations) can be overlaid on
maps of population density .
This indicator can also be viewed geographically through the
Environmental Justice Geographical Assessment Tool.
Potential or actual
cumulative
exposures across
multiple locations
S,R
Relatively sophisticated modeling of the behavior of members of a
community with respect to the amount of time spent near different
sources of contaminants (e.g., time spent at contaminated work sites
plus time spent at home near hazardous waste site).
To use the program, you must download a copy and install it on your Windows (version 3.1 or higher) machine.
For now, the Mac version of this program is not available through RTK NET.
Final - November 3, 2004
Page 35
-------
Name of Indicator
Screening or
Refined Analyses
Possible Data Sources
Potential or actual
exposure to multiple
stressors
S,R
HAZDAT database - shows which contaminants are present on
EPA's National Priorities List (NPL) sites, and provides
information for each on how it can affect health. Thus, for any
given NPL site, the number of different toxic substances identified
at the site can be identified. The results from this database can be
overlaid with population data to determine the percentage of the
population that might potentially be exposed to contaminants from
these sources.
http://www.atsdr.cdc.gov/hazdat.html
See also proximity to multiple contaminant sources and potential
for exposure to toxic substances across multiple locations.
Number of
Biomarkers of
Exposure that are
evident
S,R
Blood lead levels is a classic example, and there are data sources
with records of contaminants in samples of adipose (fat) tissues -
NHANES (I-IV) - a national survey of the U.S. population that
includes contaminant levels in blood and urine samples and some
data on contaminant concentrations in adipose tissues. Public use
computer Tapes for I and II, National Center for Health Statistics.
Stored samples for III and IV.
NHATS - National Human Adipose Tissue Survey (terminated
1990). EPA Field Studies Branch, Washington DC.
NHEXAS - National Human Exposure Assessment Survey, started
recently and data are not yet available. EPA ORD.
Examples of Indicators of Environmental Conditions
A subset of Environmental Indicators may measure quality of the community's environment
by providing data on the quality of air, water, and other environmental media to which the
community is exposed. Examples include:
"Quality" of the air, water, and other environmental media (S,R)- For several
decades, federal, state and local agencies have been reporting air and water quality
as concentrations (or other measures) of specific contaminants compared with air
and water quality standards for those contaminants. Communities exposed to air
or water contaminants at concentrations that exceed the quality standards for those
media are assumed to be at some risk for adverse health effects. Where there are
no exceedances, comparisons of ambient concentrations with media-specific
quality criteria standards within the community of concern can be used to indicate
existing margins of safety between ambient concentrations and concentrations that
might pose health risks to some individuals.
Density of contaminants in biota (living organisms) (S,R) - Contamination of
terrestrial, freshwater, or marine organisms can indicate movement of
Final - November 3, 2004
Page 36
-------
contaminants into food webs and possibly into foods consumed by the local
community. Contaminant concentrations in plants and animals can be compared
with concentrations that are considered hazardous (e.g., health advisory levels for
fish tissue residues) or with background concentrations to provide a more
meaningful indicator of risk to the community.
Table 3-3: Data Sources for Indicators of Environmental Conditions
Name of Indicator
Screening or
Refined Analyses
Possible Data Sources
"Quality" of the air,
water, and other
environmental
media
S,R
EPA's Center for Environmental Information and Statistics (CEIS)35
- has maps showing contamination levels for water and other media
at a state level. It also allows users to customize the data by creating
maps, http://www.epa.gov/ceiswebl/ceishome/atlas
AIRS Air Quality Subsystem (AIRS-AQS) -- air quality
measurements and meteorological data from approximately 10,000
monitoring stations nationally.
http://www.epa.gov/Compliance/planning/data/air/
AIRS Facility Subsystem (AIRS-AFS) -- pollutant emissions and
compliance data on air pollution stationary sources regulated by
EPA. http://www.epa.gov/Compliance/planning/data/air/
Density of
contaminants in
biota (living
organisms)
S,R
Biomonitoring of Environmental Status and Trends -- a study in the
Mississippi basin that assesses many classes of chemicals in a wide
variety of habitats. http://www.cerc.usgs.gov
EPA's National Listing of Fish and Wildlife Advisories - data on
fish, shellfish, and wildlife consumption advisories at the national
and state level, http://www.epa.gov/ost/fish
Further research may be needed for county and sub-county level
data.
EPA has assessed major EPA databases to characterize their overall quality and applicability for non-
programmatic and secondary uses such as evaluating the local state of the environment, identifying pollution sources and
hot spots, promoting environmental education, and tracking corporate accountability. The assessment process resulted
in descriptions of each of the major databases that include information on coverage, spatial characteristics, temporal
characteristics, consistency within the data system, ability to link to other systems, accuracy, limitations, access, and
documentation.
Final - November 3, 2004
Page 37
-------
Examples of Indicators of Environmental Vulnerability
Some Environmental Indicators may provide general information about the physical
environment itself, and usually are collected to be used in conjunction with other data. For
example, certain features of the physical environment, such as air quality, can increase or
decrease the likelihood or magnitude of impacts from environmental contamination. Such
indicators include:
Climate (S) - While climate is dynamic, many regions have prevailing climate
patterns, and these patterns may exacerbate or mitigate the tendency for
contaminants to reach or accumulate in the area or region. For example, the
prevailing climate patterns in the Midwest cause the transport of emissions from
coal-burning power plants to communities in the East. In this case, the population
that suffers from the environmental stressor is not likely to be the host
community. Understanding and recognizing the effect of climate on the
movement of contaminants in the environment can help an Assessment Team
identify geographic locations that are already susceptible to contamination.
Geomorphic features (S) - Like climate, geomorphic features can increase or
decrease the tendency of contaminants to reach or accumulate in the local area or
region.
Hydrogeomorphic features (S) - A community's drinking water is one potential
pathway of exposure to environmental contaminants. Some sources of drinking
water are more vulnerable to contamination than others. If a community uses a
ground-water aquifer for its drinking-water source, indicators of the vulnerability
of the aquifer to contamination would be useful to evaluate. If surface-water
bodies are present, an additional potential exposure pathway is the consumption of
fish caught in those surface waters, either recreationally or by subsistence fishers.
Presence of ecologically sensitive areas (S, R) - Certain geographic areas such as
rivers, streams, wetlands, and endangered species habitats may be particularly
sensitive to exposure from environmental contaminants.
Final - November 3, 2004 Page 38
-------
Table 3-4: Data Sources for Indicators of Environmental Vulnerability
Name of Indicator
Climate
Geomorphic
features
Hydrogeomorphic
features
Presence of
ecologically
sensitive areas
(rivers, streams,
wetlands)
Screening or
Refined Analyses
S
S
S
S,R
Possible Data Sources
EPA's ORD and RTP have modeling capabilities that can be
accessed to analyze how contaminants may disperse in certain areas
with certain climatic and Geomorphic conditions.
The National Climatic Data Center - has general resources to assist
in making a qualitative assessment of climate data.
http://www.ncdc.noaa.gov
The National Geophysical Data Center - has general resources to
assist in making a qualitative assessment of geological data.
http://www.ngdc.noaa.gov/
USGS's Water Resources - has databases relating to watersheds
and water conditions, http://water.usgs . go v/
The EPA Office of Water's Storage & Retrieval (STORE T) system
provides a repository for water quality, biological, and physical
data used by EPA, other government agencies, and the public.
http://www.epa.gov/storet
3.3.2 Health Indicators - Examples and Data Sources
As described above, Health Indicators include general statistics on the existing health
conditions of community residents, such as morbidity, as well as health impacts from
environmental stressors (particularly impacts on a sensitive subpopulation). The following
sections provide examples of these types of Health Indicators, specify whether the particular
example would be used during a Screening-Level or Refined Assessment (or both), and describe
why that indicator may be relevant to an environmental injustice situation. The table following
each set of descriptions provides potential sources of information for the indicators.
Indicators of Existing Health Conditions
Statistics on the general health of community residents can shed light into potential
exposure to contamination or indicate a vulnerability in the population to the affects of such
exposure. Examples of such health-related statistics include:
Infant mortality rate defined as the number of deaths under the age of 1 per 1,000
live births (R) - In the context of environmental justice, above-average infant
mortality in a community might reflect environmental hazards, including the
possible cumulative effect of various environmental contaminants. However, this
Final - November 3, 2004
Page 39
-------
statistic is sensitive to a variety of community health factors that impact pregnant
women and newborn infants, including nutrition, drug and alcohol use, and
disease status.
Low birth weight rate defined as the number of births <2,500gper 100 live births
(R) - As for the case with infant mortality, if the average birth weight in a
community is considerably lower than the average birth weight of the surrounding
area, then the population in the community might be experiencing more
environmental stress. Again, this statistic is sensitive to a variety of community
health factors that impact pregnant women, including nutrition, drug and alcohol
use, and disease status. Recent studies have indicated that low birth-weight
children tend to continue to have health problems throughout childhood. Such
children, therefore, might be more sensitive and less resistant to environmental
hazards than other children.
Age-adjusted mortality rate defined as the number of deaths from all causes,
except homicides/suicides, per 100,000 people (R) - Assigning an accurate cause
of death to adults is generally easier than for infants. Higher death rates among
adults due to illnesses that tend to have environmental components, such as
asthma and bronchitis, cancer, and diseases due to pathogens, might indicate that
the community is subject to higher levels of environmental contamination than
other communities. Further assessment would attempt to demonstrate a true
disparity, however, and to determine causation.
Life expectancy at birth (R) - Life expectancy is a widely accepted and standard
measure of health outcomes and is included here as a broad-based measure of
human health.
Final-November 3, 2004 Page 40
-------
Table 3-5: Data Sources for Indicators of Existing Health Conditions
Name of Indicator
Screening or
Refined
Analyses
Possible Data Sources
Infant mortality rate
defined as the
number of deaths
under the age of 1
per 1,000 live births
R
The National Center for Health Statistics (NCHS)36 - publishes National
Vital Statistics Reports, which provide infant mortality rates by age, sex,
and race at the national and state level only.
http://www.cdc.gov/nchs/datawh/statab/unpubd.htm
The US Census - provides the infant mortality rate at the county level
but does not break down the data by population characteristics.
http://www.census.gov
Additional research may be needed for data at the sub-county level. See
http://www.cdc.gov/other.htmffstates.37
Low birth weight
rate defined as the
number of births
<2,500g per 100
live births
NCHS - provides the percentage of low birth weights by age and race
of the mother at the national level only.
http://www.cdc.gov/nchs/fastats/birthwt.htm
Additional research may be needed for data at the sub-county level.
Age-adjusted
mortality rate
defined as the
number of deaths
from all causes,
except
homicide s/suicides,
per 100,000 people
NCHS - provides death rates by age, race, and cause of death for the
national and state level only. The disease rate is available only when
disease caused death.
http://www.cdc.gov/nchs/default.htm
Additional research may be needed for data at the sub-county level.
The US Census - provides the number of deaths per thousand people at
the county level but does not break down the data by population
characteristics, http://www.census.gov
Life expectancy at
birth
NCHS Life - provides life expectancy by race and sex at the national
level only, http://www.cdc.gov/nchs/datawh/statab/pubd/47 9st6.htm
Additional research may be needed for data at the sub-county level.
NCHS is the federal government's principal vital and health statistics agency. Since 1960, when the National
Office of Vital Statistics and the National Health Survey merged to form NCHS, the agency has provided a wide variety
of data with which to monitor the nation's health.
37 This CDC site provides links to state (and some county) health departments. It must be noted that these sites vary
widely in the content and quality of their data. However, at the very least, this link should provide useful contact
information for pursuing further state and local health-related data.
Final - November 3, 2004
Page 41
-------
Indicators of Health Impacts from Environmental Stressors
Certain Health Indicators may reflect whether a subset of the population has health
sensitivities or might be highly exposed. Examples include:
Number of illnesses attributable to chemical contaminants (R) - (if contaminant
stressors are in question) - Some types of diseases or health conditions can be
caused by exposure to abiotic contaminants in the environment. Comparison of
the incidence of particular types of disease or health conditions in a community of
concern with the incidence of those conditions in other communities (or with
national averages) can provide an indication of whether the community of concern
is actually experiencing a disproportionate share of those adverse health effects.
Such comparisons should be conducted with applicable statistical techniques
using appropriate principles of epidemiological research (e.g., consideration of
possible confounding factors) and, alone, do not constitute evidence of causation.
Furthermore, the size of a community of concern often is too small to demonstrate
statistically significant increases in the incidence of a disease compared with other
communities. Diseases with long latency periods, such as cancer, might be
indicative of exposures that occurred decades earlier. Thus, it usually is not
possible to conclusively demonstrate the existence or cause of increased
incidences of diseases related to exposure to such contaminants. If a community
appears to be experiencing a higher than expected incidence of diseases that might
be caused by chemical contaminants, however, examination of other indicators is
warranted. This might include indicators of possible sources of such
contaminants, exposures to the contaminants, and other health effects expected
from exposure to those contaminants. Moreover, individuals in such communities
might be at greater risk of (i.e., more sensitive or exhibiting less resistance to)
contracting an illness or developing other adverse health effects from a future
exposure than would communities with lower disease incidence rates.
Number of diseases attributable to pathogens (R) - (ifpathogenic stressors are in
question) - Other types of diseases or health conditions are caused by exposure to
living organisms such as viruses and bacteria. Some of these are associated with
specific vectors (e.g., mosquitos) that affect fate and transport in the environment.
Others of these are typically associated with specific types of environmental
contamination (e.g., animal feces) with predictable routes of human exposure
(e.g., drinking water). Many of the same considerations apply to the assessment
of incidence of these diseases as to the incidence of diseases attributed to
chemical contamination. The adverse health effects of many water-borne
pathogens, however, often are manifest within hours of an exposure, however,
making it easier to identify the source of the pathogens. Communities
experiencing higher rates of pathogen-caused diseases indicate the existence of
problems that need to be addressed quickly.
Final-November 3, 2004 Page 42
-------
Table 3-6: Data Sources for Indicators of Health Impacts from Environmental Stressors
Name of Indicator
Screening or
Refined Analyses
Possible Data Sources
Number of illness
attributable to
chemical
contaminants (as a
percent of the
community
population)
R (see above)
NCHS database for Cancer: Surveillance, Epidemiology and End
Results (SEER) Data - has cancer rates by age, race, and sex at
state and county levels, http://wonder.cdc.gov/seerj.shtml
NCHS - provides data on chronic diseases by age and sex at the
national level only, http://www.cdc.gov/nchs
Other diseases can be searched individually on the NCHS page.
http://www.cdc.gov/nchs
Additional research may be needed for data at the sub-county
level.
Number of diseases
attributable to
pathogens (as a
percent of the
community
population)
R (see above)
NCHS database for Cancer: Surveillance, Epidemiology and End
Results (SEER) Data - has cancer rates by age, race, and sex at
state and county levels, http://wonder.cdc.gov/seerj.shtml
NCHS - provides data on chronic diseases by age and sex at the
national level only, http://www.cdc.gov/nchs
Other diseases can be searched individually on the NCHS page.
http://www.cdc.gov/nchs
Additional research may be needed for data at the sub-county
level.
3.3.3 Social Indicators - Examples and Data Sources
As described in Section 3.2.3 above, Social Indicators cover a wide variety of
information, from general demographics to access to amenities, governmental response actions,
community participation, and potential for public participation. The following sections provide
examples of these types of Social Indicators, specify whether the particular example would be
used during a Screening-Level or Refined Assessment (or both), and describe why that indicator
may be relevant to an environmental justice situation. The table following each set of
descriptions provides potential sources of information for the indicators. At the Screening Level
Assessment, qualitative and other readily available data can be used for several of these. For the
Refined Assessment, more quantitative information can be sought.
Final - November 3, 2004
Page 43
-------
General Demographic Social Indicators
Social indicators can include data on the distribution of certain population characteristics
to provide EPA a general description of the community's composition. Given that one of the
goals of Executive Order 12898 is to protect minority populations from disproportionate
environmental stressors, it is important to determine the race and ethnic composition of the
community in question, as well as collect other general demographic information such as age and
gender distribution. In this context, the term minority means a person, as defined by the U.S.
Bureau of Census, who is a: (1) Black American (a person having origins in any of the black
racial groups of Africa); (2) Hispanic person (a person of Mexican, Puerto Rican, Cuban, Central
or South American or other Spanish culture or origin, regardless of race); (3) Asian American or
Pacific Islander (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 or Alaskan Native
(a person having origins in any of the original people of North America and maintains cultural
identification through tribal affiliation or community recognition). A minority population means
any readily identifiable group of minority persons who live in geographic proximity, and, if
circumstances warrant, geographically dispersed/transient persons (such as migrant farm workers
or Native Americans) who will be similarly affected by a proposed project or action, or EPA
program, policy, or activity.
Moreover, it is important to recognize that some proposed actions that cause only limited
environmental effects or impacts nevertheless could, because of demographic or social
conditions, have a significant secondary or tertiary effect on certain populations. For example,
actions that limit or reduce access to traditional hunting or fishing areas, or that limit or reduce
the availability of wild game or fish, may cause a series of ripple affects throughout the culture
that is based on these traditional livelihoods. The cultural implications of programs or actions
should not be ignored in examining social indicators.
Other indicators include:
Percent of population that is of various ethnic and national origins or other
factors such as age (S,R) - Given that one of the goals of Executive Order 12898
is to protect minority populations from disproportionate environmental stressors,
it is important to determine the race and ethnic composition of the community in
question.
Population density, including distribution of urban and rural populations (S,R)-
Population density affects both risks of adverse health effects and the ability of a
local community to influence decisions that affect their environment. For
example, a decision to locate a hazardous waste facility is likely to depend, in
part, on the population density of the area because a higher population density
would (a) put more people at risk (with everything else being equal) and
Final-November 3, 2004 Page 44
-------
(b) increase the number of people who might oppose the site and possibly increase
the costs of buying out and relocating residents. These factors mean it is more
likely for facilities to be sited in less urban areas, where education, income, and
general public involvement in the decisionmaking process may be less.
Percent of population that is Native American (S,R) - There are several Executive
Orders that require federal departments/agencies to address possible impacts to
tribal communities separately.38 These orders provide an opportunity for the tribal
governments to interact with federal departments/agencies in a "government-to-
government" manner. Because of this, it is critical to determine the Native
American tribe or tribes that comprise the "community."
Distribution of languages spoken in population (S,R) - Information on whether
languages other than English are spoken among the population, and percentage
distribution of these languages, is important information in determining how to
address public participation.39
Percent of the population that is literate in English or other languages (S,R) - The
level of literacy for the adult population provides a critical measure of the
likelihood and the ability of the community to know about and participate in
public meetings, to comment on written proposals, and to otherwise participate in
the process. If tools used to encourage public participation are not tailored to
local literacy rates, the outreach process can be ineffectual. [OEJ]
38 For example, Executive Order 13175, "Consultation and Coordination With Indian Tribal Governments,"
requires federal agencies to respect tribal self-government and sovereignty, tribal rights, and tribal responsibilities
whenever they formulate, polices "that have tribal implications." 65 Fed. Reg. 67249 (November 6, 2000). Executive
Order 12866, "Regulatory Planning and Review," 58 Fed. Reg. 51735 (October 4, 1993) objectives are to enhance
planning and coordination with respect to both new and existing regulations; to reaffirm the primacy of federal agencies
in the regulatory decision-making process; to restore the integrity and legitimacy of regulatory review and oversight; and
to make the process more accessible and open to the public.
39 This is also complimentary to Executive Order 131 66 on "Limited English Proficiency," 65 FR 50121 (August
16, 2000) which ensures meaningful access to information by persons who are not proficient in English.
Final-November 3, 2004 Page 45
-------
Table 3-7: Data Sources for Indicators of General Demographics
Name of Indicator
Screening
or Refined
Analyses
Possible Data Sources
Percent of
population that is of
various ethnic and
national origins or
other factors, such
as age
S-Local
S-County
R-Local
Self-reporting by community.
U.S. Census Bureau - has population by race, ethnicity, national origin, age
and sex at numerous levels. The following URL provides summary tables
at the national, state, and county levels, http://www.census.gov/sdc/www
Data from local, county, and State governments.
This indicator can also be viewed geographically through the
Environmental Justice Geographical Assessment Tool.
Population Density
(including
distribution of urban
and rural
populations)
S-Sub-
county
R-Other
U.S. Census Bureau - has population per square mile at county and sub-
county (usually boroughs of a city) levels, but is not broken down by
population characteristics, http://www.census.gov/sdc/www
This indicator can also be viewed geographically through the
Environmental Justice Geographical Assessment Tool.
Percent of
population that is
Native American
S-Local
R-County
Community-self reporting
U.S. Census Bureau - has data available for indigenous populations at
numerous levels. The following URL provides summary tables at the
national, state, and county levels, http://www.census.gov/sdc/www
This indicator can also be viewed geographically through the
Environmental Justice Geographical Assessment Tool.
Language spoken
S - Local
R-County
Community self-reporting
U.S. Census Bureau - has data available for languages spoken at numerous
levels. The following URL provides summary tables at the national and
state levels, for language use, English ability, and linguistic isolation for
various populations, http://census.gov/population/www/cen2000/phc-
t20.html
Percent of
population that is
literate
S-Local
R-County
National Center for Educational Statistics - has literacy rates at the national
level only, http://www.nces.ed.gov/naal
Additional research may be needed for data at the sub-county level.
Final - November 3, 2004
Page 46
-------
Indicators of Potential Vulnerability to Stress
A certain subpopulation in the community may be more vulnerable to exposure because
of less access to certain amenities (e.g., hospitals, safe drinking water, sewage treatment, public
transportation) and because of certain behaviors. Examples include:
Percent of community with access to public transportation and services (S,R) -
The availability of transportation services in a community often determines its
economic and social viability. In particular, low-income groups and some elderly
and disabled individuals, with limited or no access to private transportation,
require public transportation to access urban and other amenities.
Percent of community with access to health care facilities (S,R) - Not all groups or
communities have equal access to health care facilities. Those without access
generally go undiagnosed and untreated. Groups without easy access to health
care facilities include those without health insurance (including low-income
families, the homeless, migrant farm workers) and those unable to travel to health
care facilities (including the elderly). Some groups, such as Native American
reservation inhabitants and inner city residents, might have access only to what
might be considered low-quality facilities. Other groups, including young, high-
risk pregnant women, or individuals with AIDS or HIV, might be unwilling to
access facilities where their condition might be brought to the attention of their
family or the community. Data on access to health care facilities can be used to
assess the vulnerabilities of those groups. The issue of the quality of care
delivered at facilities was highlighted by the National Cancer Institute's Office of
Special Populations Research:
Patterns of cancer care received often differ among populations
categorized by race or ethnicity. For example, it has been
demonstrated that black men with localized prostate cancer are less
likely to receive aggressive therapy when compared to whites. The
reasons for this and other disparities in cancer care are unclear, and this
is an area clearly in need of more study. Studies have shown that some
disparities are due to cultural differences, in the acceptance of having a
disease and in acceptance of treatment. In other cases, treatment
disparities are due to socio-economic barriers such as lack of
insurance, lack of access to treatment, as well as discrimination. A
very active area of research with significant opportunity is the
assessment of treatment outcomes in various populations. In colon,
breast, and prostate cancers, the majority of studies to date indicate that
Final-November 3, 2004 Page 47
-------
equal treatment yields equal outcome with race not being an influence.
This makes patterns-of-care studies showing disparities in care even more
significant.40
Percent of community that uses regulated (cigarettes, alcohol) and unregulated
(drugs) substances (S,R) - These substances can dramatically impair the overall
health of individuals who use them, thereby making those individuals more
susceptible to other environmental hazards. According to the Surgeon General's
report, Healthy People 2010, both tobacco use and substance abuse are listed as
"Leading Health Indicators." With respect to cigarette smoking, the report states
that, "Environmental tobacco smoke (ETS) increases the risk of heart disease and
significant lung conditions, especially asthma and bronchitis in children. ETS is
responsible for an estimated 3,000 lung cancer deaths each year among adult
nonsmokers."41 With respect to substance abuse, the report states that, "Alcohol
and illicit drug use are associated with many of this country's most serious
problems . . . The annual economic costs to the United States from alcohol use
were estimated to be $167 billion in 1995, and the costs from drug abuse were
estimated to be $110 billion."42 EPA has long considered the potential for use of
those substances to cause cumulative or synergistic effects when combined with
exposure to other environmental contaminants (e.g., examining radon in drinking
water in relation to use of cigarettes).
Percent of community with access to alternative sources of drinking water (R) -
Access to safe drinking water is essential to the standard of living that is expected
by the public in this country. Assuming that situation as the baseline, one
indicator of vulnerability for a community would be access to an alternative water
supply should contamination affect their primary water supply. Several factors
affect access to alterative sources of safe water, including the financial resources
to access them (e.g., to build new pipelines, to temporarily use bottled water).
Percent of community with sewage treatment (R)- Communities without adequate
sewage treatment have an increased potential to experience water-borne diseases,
including diseases caused by viruses (e.g., hepatitis, various gastrointestinal
illnesses), by bacteria (e.g., salmonella poisoning and cholera), or by protozoa
(e.g., Giardia, Cryptosporidiosis).
40 National Cancer Institute, Race as a Factor in Cancer Care, (http://ospr.nci.nih.gov/race.html)
41 Office of Disease Prevention and Health Promotion, U.S. Department of Health and Human Services, "Leading
Health Indicators," Healthy People 2010. (http://www.healthypeople.gov/Document/htm 1/uih/uih bw/uih 4.htm)
42 Id.
Final-November 3, 2004 Page 48
-------
Percent of community that relies on local food sources (R)- Some ethnic groups
are more likely to grow their own food crops or to rely upon subsistence fishing
from local surface waters. Such groups would be more likely to be exposed to
contaminants that accumulate in soils, plants, and fish than other groups which
purchase their foods at commercial stores. Sport fishers who consume their catch
also can be more likely to experience such exposures.
Table 3-8: Data Sources for Indicators of Potential Vulnerability to Stress
Name of Indicator
Screening
or Refined
Analyses
Possible Data Sources
Percent of community
with access to public
transportation and
S,R
State and local departments of transportation may provide mass
transit routes to help determine what percentage of the population is
within 1/4 mile of mass transit. The Department of Transportation
also provides a variety of related statistics, http://www.dot.gov
Percent of community
with access to health
care facilities
S,R
NCHS 1999 Health Report - shows the percentage of persons with
health insurance, by age and race at the national level only.
http://www.cdc.gov/nchs/products/pubs/pubd/hestats/healthinsur.html
Additional research may be needed for data at the sub-county level.
Percent of community
that uses regulated
(cigarettes, alcohol) and
unregulated (drugs)
substances
S,R
NCHS has compiled data on use of drugs, alcohol and tobacco by
age, race, and sex at the national level only.
http://www.cdc.gov/nchs
Additional research may be needed for data at the sub-county level.
Percent of community
with access to alternative
sources of drinking
water
EPA's Office Of Water provides resources on water quality, drinking
water and watersheds with data at national, state and local levels, that
may help determine the percentage of the population with safe
drinking water, http://www.epa.gov/ow/
The Safe Drinking Water Information System (SDWIS) - shows
water quality violations by local water providers, http://www.epa.gov/
docs/enviro/html/sdwis/sdwis gov.html
Percent of community
with sewage treatment
The US Census - provides data showing the percentage of homes
with indoor plumbing at the national, state, and county levels.
http://www.census.gov
Additional research may be needed for data at the sub-county level.
More detailed data, such as the percentage of the population with
unsafe septic systems or limited access to public sewers, will require
additional research from sources such as municipal construction
programs and local zoning boards.
Final - November 3, 2004
Page 49
-------
Name of Indicator
Screening
or Refined
Analyses
Possible Data Sources
Percent of community
that relies on local food
sources
R
EPA has compiled data from national and local studies of subsistence
and sport fishing on ingestion rates for self-caught fish and shellfish
from local surface waters. Depending on the similarity of the
populations studied with the community of concern, data from one or
more of such studies might be applicable. See EPA's
www.epa.gov/ncea/sociodeg.htm (US EPA 1999c) concerning highly
exposed populations.
Additional research may be needed for on local patterns of
subsistence and sport fishing and gardening.
Indicators of Government Response Actions
Certain data regarding government actions can provide information about the level of
commitment the local or state government has for encouraging meaningful public participation in
the decisionmaking process. Examples include:
Expenditure/investment on providing access to environmental information (as a
percent of total community budget) (S,R) - These data can provide an indication of
the commitment of the government to ensuring that the public obtains sufficient
information to allow them to get involved in the decisionmaking process.
Expenditure/investment on environmental education and training (as a percent of
total community budget) (S,R) - These data could be used to evaluate the efforts
to educate and train the community on relevant technical and policy issues.
Number and frequency of public meetings on proposed actions and policy
decisions (S,R) - The frequency of meetings can indicate whether the
decisionmakers are involving the public in all appropriate stages of the
decisionmaking process.
Number of different types of materials distributed (R) - An assessment of how
environmental information is distributed in the community would indicate
whether residents are likely to be getting sufficient information. An example of
such information distribution could be to make meeting notices available via
Internet and local newspapers, church, and community organizations.
Percent of households that received distributed materials (S) - Since public
participation is directly linked to the level of awareness on any environmental
issue, the percent of households who received distributed materials can be a direct
measure of the potential to participate in the decisionmaking process.
Final - November 3, 2004
Page 50
-------
Number of documents available in the various languages associated with a
community (R) - If the initial community demographic assessment determines that
such translations are needed, an assessment of the process and frequency of
translating notices and fact sheets into languages other than English would
indicate whether residents are likely to be getting sufficient information.
Table 3-9: Data Sources for Indicators of Government Response Actions
Name of Indicator
Screening
or Refined
Analyses
Possible Data Sources
Expenditure/investment
on providing access to
environmental
information (as a percent
of total community
budget)
S, R
Budget records for federal, state, and local governments may provide
dollars expended on providing access to environmental information for
the public.
Expenditure/investment
on environmental
education and training
(as a percent of total
community budget)
S, R
Budget records for federal, state, and local governments may provide
dollars expended on providing environmental education and training
for the public.
Number and frequency
of public meetings on
proposed actions and
policy decisions
S, R
EPA, local government, and industry leaders may keep records on
public meetings that will help determine the number of public
participation events. Other national and state agencies, or local
newspapers, may have similar records.
Number of different
types of materials
distributed
R
A qualitative assessment showing how governments publicize meetings
and events, communicate their goals, and facilitate public awareness of
environmental problems will be performed primarily through local
assessment.
Percent of households
that received distributed
materials
R
A quantitative assessment of the number of materials distributed as a
percent of the number of households in the community.
Number of documents
available in the various
languages associated
with a community
R
A qualitative assessment of whether translations are being performed
(if needed, as determined by initial demographic assessment).
Final - November 3, 2004
Page 51
-------
Indicators of Community Participation
Some Social Indicators would measure of the ability of the population to gain access to
information or to meaningfully participate in the decisionmaking process. Examples include:
Community identification (S)- As discussed earlier, communities are difficult to
define. The Postal Service defines communities by zip codes, but that delineation
is based on ease of service and not on neighborhoods. Local government defines
communities for voting districts and schools, but again, these delineations are
sometimes politically based and do not necessarily reflect distinct
neighborhoods. Thus, a community of concern could be a community board
district, sanitation district, school district, hospital district, zip code, and health
department catchment area. Community members also often self-define their
community based on proximity to a physical feature, such as a subway station, or
an element of similarity, such as a cluster of persons with the same ethnic
heritage. It is important to assess the various community definitions within the
potentially impacted area. This will help identify all communities of concern and
recognize attributes of each community that might modify impacts to that
community.
Cultural dynamics (S,R) - Understanding the cultural dynamics of a community
helps one design an appropriate public process to allow their participation in the
decisions that will affect them. For example, within many Native American
cultures, values of the tribal community are more important than those of the
individual. Tribal decisions are reached by consensus, ensuring that everyone has
an opportunity to provide input in the process and is satisfied by the decision
reached. Emphasis placed on process is equal to, if not greater than, that which is
placed on culturally incompatible economic development. In addition, decisions
are based on long-term consequences and are made in light of their effects on the
next seven generations. Given the different dynamics of tribal decisionmaking
compared with U.S. democratic governmental processes, appropriate contacts
with and representation of the Tribes in the process should be established.
Quality of public participation of community residents (R) - A qualitative
assessment of public participation efforts would indicate whether members of
communities have meaningful opportunities to participate directly in decisions
and actions that affect their community.
Number of community residents participating in non-governmental organizations
(NGOs) (S,R) - Measures of the level of involvement of community members in
civic organizations can indicate the community's desire and ability to involve
themselves in matters affecting the community. While a lack of participation of
Final - November 3, 2004 Page 52
-------
community members in these organizations might indicate that there are few
issues requiring civic attention, it also might indicate that community members
do not believe that they can affect the conditions of their community.
Number of community members participating in the decisionmaking process (S,R)
The more involved that community members are in the environmental
decisionmaking process, generally speaking, the greater the level of environmental
protection achieved.
Table 3-10: Data Sources for Indicators of Community Participation
Name of Indicator
Screening
or Refined
Analyses
Possible Data Sources
Community
identification
A qualitative assessment showing who identifies themselves in a given
community and what boundaries they define will be obtained primarily
through local assessment.
Cultural dynamics
S,R
A qualitative assessment showing how community members identify
cultural or ethnic differences, and what NGOs or institutions may be in
place to facilitate cross-cultural ties will be obtained primarily through
local assessment.
Quality of public
participation of
community residents
EPA docket - EPA regional offices may keep records on public meetings
that will help determine the number and frequency of participation of
community residents at public participation events. Other national and
state agencies may have similar records.
Number of community
residents participating
in non-governmental
organizations
S,R
Research providing quantitative and qualitative data showing the rate of
participation in NGOs will be obtained primarily through local
assessment.
Number of community
members participating
in the decisionmaking
process
S,R
EPA docket - EPA regional offices may keep records on public
meetings, which will help determine the number and frequency of
participation of local leaders at statutorily required public participation
events. Other national and state agencies may have similar records.
3.3.4 Economic Indicators - Examples and Data Sources
Economic Indicators reveal trends about the community's socio-economic well-being.
Assessing income levels is crucial to an environmental justice assessment, because one of the
goals of environmental justice is to protect low-income populations against adverse,
disproportionate environmental and health impacts. In this context, low-income means a person
Final - November 3, 2004
Page 53
-------
whose median household income is at or below the U.S. Department of Health and Human
Services poverty guidelines. Low-income population means any readily identifiable group of
low-income persons who live in geographic proximity. If circumstances warrant, it also means
geographically dispersed/transient persons (such as migrant farm workers or Americans Indians
or Alaska Natives) who will be similarly affected by a proposed project action, or EPA program,
policy, or activity.
Examples of Economic Indicators that provide data about economic well-being include:
Unemployment rate (S)- This is defined as the percentage of persons in the labor
force who are seeking employment and is an indicator of the degree to which the
economy provides jobs for those seeking work. This statistic is a measure of the
economic opportunities in a community and the degree to which a particular
community is able to meet their basic needs. In the absence of income data (see
below), this indicator provides a measure of community members' financial
independence.
Income levels and distribution (S)- This statistic measures the overall income
levels of the community and the proportion of the total households that are in
different income categories. As previously discussed, low incomes can be
associated with poor health and low levels of civic participation. According to the
National Cancer Institute's Office of Special Populations Research:
Poor people have increased incidence and mortality rates from cancer
compared with the mainstream of American society. An estimated
35.6 million people in the United States are poor based on the national
standard of poverty. The effects of poverty are disproportionately
reflected in the African and Hispanic American populations. Thus,
26.5 percent of African Americans and 27.1 percent of Hispanic
Americans are poor, whereas only 11 percent of white Americans are
poor. Among Asian and Pacific Islanders 14 percent are poor. Poverty
is associated with low educational level, substandard living conditions,
unemployment, poor nutrition, risk-promoting lifestyles, an inadequate
social-support network, and diminished access to health care. All of
these factors contribute to an increased risk of developing and dying of
cancer. The present racial/ethnic patterns of poverty in the U.S. and
the differences in cancer among the medically underserved and poor
serve to define challenges for the control of cancer in the U.S. The
greatest challenge remains to decrease the gap in cancer incidence and
improve survival between the economically disadvantaged. The
second challenge is to focus appropriate health and research resources
to this high-risk group with the hope of eliminating cancer disparities
Final - November 3, 2004 Page 54
-------
and improving cancer cure rates. The third challenge is to educate
economically disadvantaged groups as well as health care providers
about the important role socio-economic factors can have on cancer
incidence and mortality.43
Percent of homeowners in a community or the percent of renters in a community
(S) - In an environmental justice context, the percentage of owner-occupied units
versus renter-occupied could, in some cases, have an impact on the community's
interest, willingness, and availability to participate in environmental decisions
affecting the community.
Percent of community residents with a reliance on polluting industries for jobs
and economic development (R) - The degree to which a community is
economically dependent on potentially environmentally detrimental facilities
should be assessed. Communities with greater dependence may be more willing
to assume higher risks and to tolerate some health impacts because the
community members feel they have no alternative. This situation can help to
create allegations of environmental injustice, because the community members are
unlikely to speak out or raise concerns against their primary source of income.
Percent of community residents with employment in pollution-generating
industrial facilities or services (R) - These statistics could provide one indication
of the degree to which the local community benefits economically from such
facilities. The number of residents employed and the types of jobs and income
levels they obtain are important measures of economic benefit.
Number of brownfields in the community (R) - The number of active brownfields
sites in a community is indicative of: (1) the economic, environmental, and
community concerns surrounding brownfields redevelopment initiatives; and (2)
the issues of economics and equality in revitalizing urban communities. The
goals of brownfields initiatives in redeveloping the land, remediating
contaminated properties, promoting economic development, and, ultimately,
expanding the tax base, address some of the main concerns of community
residents, e.g., a cleaner, healthier environment, economic development and jobs,
and, finally, an opportunity to rebuild a crumbling infrastructure with meaningful
involvement of the residents in the decisionmaking process.
Reliance on natural resources for the community's economic base (as a percent of
total community budget) (R) - If a community's economic base relies primarily on
its natural resources, an environmental release of hazardous materials that impacts
43 National Cancer Institute, Cancer and Poverty, (http://ospr.nci.nih.gov/poverty.html)
Final - November 3, 2004 Page 55
-------
those natural resources, such as a major oil spill, can have a devastating adverse
impact, not only on wildlife and ecosystems, but also on the community that relies
on those natural resources to survive and prosper.
Table 3-11: Data Sources for Economic Indicators
Name of Indicator
Screening
or Refined
Analyses
Possible Data Sources
Unemployment rate
Bureau of Labor Statistics - has information available at the state and
county level, and some major cities, but is not broken down by
population characteristics, http://www.bls.gov/lau/home.htm
Or, users can build their own unemployment tables with more detailed
population characteristics, http://www.bls.gov/sahome.html
Income levels and
distribution
U.S. Census Bureau - has data on income level for various population
percentiles at the national level only, http://www.census.gov/
hhes/www/p60191 .html
Additional research may be needed for data at the sub-county level.
Percent of
homeowners in a
community or the
percent of renters in a
community
U.S. Census Bureau - has data at the national level showing the
percentage of the population that owns or rents housing at the national
level only, http://www.census.gov/hhes/www/hvs.html
Additional research may be needed for data at the sub-county level.
Percent of community
residents with a
reliance on polluting
industries for jobs and
economic
development
To make a qualitative assessment of how the population is economically
linked to a polluting facility, a survey of local employers can be used.44
Percent of community
residents with
employment in
pollution-generating
industrial facilities or
To determine the percentage of the population that is employed in large
pollution-generating facilities (e.g., petrochemical facilities, refineries,
etc.), a survey of local employers can be used.
Number of
brownfields in the
community
Landview III - a spatial resource for determining brownfield location
relative to the affected community.
Additional research may be needed for up-to-date data at all levels.
' Any local survey will need to consider the requirements of the Paperwork Reduction Act.
Final - November 3, 2004
Page 56
-------
Name of Indicator
Reliance on natural
resources for the
community's
economic base (as a
percent of total
community budget)
Screening
or Refined
Analyses
R
Possible Data Sources
The Natural Resources Inventory - may help determine the percentage of
population within a specified distance of open space, natural land, or
recreational areas through its data on land cover, land use, wetlands,
habitat diversity, and selected conservation practices at national,
statewide, and multi-county levels.
http://waterhome.brc.tamus.edu/NRIAI/
Final - November 3, 2004
Page 57
-------
4. METHODOLOGY FOR ENVIRONMENTAL JUSTICE
ASSESSMENT
The purpose of this chapter is to explain how the Environmental Justice Indicators
presented in the previous chapter can be incorporated into the general methodology for assessing
both potential impacts from proposed actions and existing impacts. It explains how, for example,
to use readily available data on Environmental Indicators (e.g., information obtained from a site
visit, communications with local communities, previous assessments, available GIS framework)
to conduct the assessment at a screening level. The Screening Level Assessment generally is
concluded with a decision about whether an environmental injustice situation is likely to exist,
whether it is a situation in which EPA can be of assistance, and whether a more Refined
Assessment is appropriate. More refined analyses are conducted if necessary and only until EPA
has sufficient information to make a decision. An example of how this methodology would be
applied to a hypothetical situation is provided in Appendix C.
4.1 PHASE 1: PROBLEM FORMULATION
The first phase of the assessment is to determine, at least qualitatively, the context, scope,
participants, community of concern, reference communities, assessment endpoints, and indicators
that can be used to evaluate the assessment endpoints, and level of effort needed to conduct a
preliminary examination of the questions or issues that started the assessment. At the screening
stage, the goal of problem formulation is a conceptual model of the issue and an analysis plan.
Each item is discussed in turn below.
4.1.1 Context
The context of a problem depends on how the issue was brought to EPA's attention. EPA
might proactively identify a need for an environmental justice assessment to inform a decision
the Agency must make. For example, EPA Headquarters might be conducting a national-level
assessment to support the development of a new regulation. In this context, EPA's questions
might involve the distribution of impacts on minority and/or low-income communities caused by
a proposed plan of action versus alternative actions. This context indicates a need for an
assessment of the potential consequences of an action and its alternatives. On the other hand, an
environmental justice assessment might be initiated by an allegation of an existing injustice. In
this context, EPA's questions might concern existing conditions. This context suggests an
assessment of current conditions and a retrospective assessment of what might have caused those
conditions. In some cases, the assessment will be conducted as part of the overall process for a
specific decision (e.g., issuing a permit). EPA's role in scoping the environmental justice
assessment (Section 4.1.2) would depend in part on the context in which the issue arose.
Final - November 3, 2004 Page 58
-------
4.1.2 Scope
Different starting points provide different types of information that can be used initially to
determine the scope of the Assessment in terms of participants (e.g., the Assessment Team and
other potential contributors to the analysis), level of effort, duration, and cost of the screen. A
first step in scoping would be to identify the readily available sources of information to help
formulate the problem. For example, a citizen complaint might include a list of community
representatives and stakeholders (e.g., businesses or local governments) involved in the issue. A
national-level cost-benefit assessment might already have been conducted for a national
regulation. A RCRA facility manager might have supplied a permit application identifying
hazardous wastes handled or stored at the facility. Information on the toxicity of some of those
substances is likely to be readily available in EPA's Integrated Risk Information System, while
other substances might have little toxicity information available. A history of local operating
permits or postings offish advisories also might be readily available. Consideration of the
readily available information substantially assists the process of problem formulation.
4.1.3 Participants
With allegations of environmental injustice, it can be very helpful to involve members of
the community of concern and other stakeholders (e.g., RCRA facility owner, the city and county
governments) in formulating the problem. There are many reasons to do this, some of which are:
1. The community of concern and other potentially affected stakeholders generally
have extensive knowledge of the current situation, how it arose, characteristics of
the community, and constraints and other pressures faced by the stakeholders.
2. Members of a community and other stakeholders are more likely to accept the
results of an assessment if they had a voice in planning the assessment in the first
place.
3. The community and other stakeholders often already have innovative ideas for
how to resolve a problem, including potential roles of each party in developing a
solution.
Thus, for allegations of environmental injustice, at the outset of problem formulation,
EPA should consider ways to involve members of the community and other stakeholders in
formulating the problem. At the Screening-Level Assessment, informal discussions with
stakeholders and representatives of the community might suffice. (The Refined Assessment
options for involving the community include public meetings, inviting members of local
organizations and governments to join the EPA team in developing the assessment plan, and
formal meetings with key players.) During problem formulation, the potential for participation
of the local community and governments in the next steps of the assessment can be evaluated.
Final - November 3, 2004 Page 59
-------
The best strategy for involving the community and other stakeholders depends on the magnitude
of the issue, EPA's experience with different methods for involving stakeholders, and other
contextual factors. EPA also should examine its potential roles and responsibilities in the
assessment. For example, does EPA have authority under its legislative mandates to participate
in the assessment or the solution or should EPA assist the local governments in conducting the
assessment? By the end of problem formulation, the initial role of EPA and local communities
and other entities in the Screening-Level Assessment should have been defined. In addition, the
identity of those who will be conducting the assessment (i.e., the Assessment Team) will also be
identified. This may, again, include not only the Environmental Justice Coordinator but also
representatives from program offices, and representatives from other government agencies, if
appropriate.
4.1.4 Affected Area
At this point, EPA and the other participants in problem formulation should define both
the affected, or potentially affected, area and/or community. At the Screening-Level Assessment,
the boundaries of the community might be somewhat ambiguous, but the core of the affected area
should be clear. The size and geographic extent of the affected area will vary depending on the
context and scope of the assessment.
The initial approach for identifying the affected area will differ if the assessment is being
conducted in response to an allegation of environmental injustice, or is part of an environmental
decisionmaking process (e.g., permitting). In an assessment of an allegation of an existing
environmental injustice situation, the affected population is defined by the nature of the
allegation, on a case-by-case basis. In such circumstances, the community may define itself, e.g.,
based on common demographics or other social, cultural, or economic factors.
4.1.5 Reference Community or Communities
For purposes of ascertaining whether the affected area is disproportionately affected, a
reference community or set of statistics should be identified. In identifying the reference
community (or communities), attributes that a community used to define itself can be helpful- a
community might define itself in part by referring to other communities that it perceives to be
spared the environmental injustice.
At the Screening-Level Assessment, it is important to consider data availability in
selecting a reference community. Options for obtaining data on a reference community include
national, state, metropolitan statistical area, and county-level statistics that already have been
compiled for Environmental Justice Indicators and are readily available (see Sections 3.3 and
3.4). More than one type of reference community might be identified, for example, both national
and state-wide populations.
Final - November 3, 2004 Page 60
-------
If the later steps in the assessment indicate disproportionate effects on the affected area
relative to state-level, but not national-level statistics, the responsibility for the assessment and its
solutions might be shifted from EPA to the state. In localized environmental justice situations,
an appropriate reference community might be as small as the other side of town.
4.1.6 Assessment Endpoints
A next step in problem formulation is to identify and agree upon the endpoints of concern
in the assessment. Given that an environmental injustice situation is at issue, many of the
ultimate assessment endpoints are in essence already defined. These include the potential for
disproportionately high adverse effects or impacts on environmental conditions, human health,
and welfare (including economic and social welfare) in the community of concern compared with
other communities. More specific assessment endpoints depend on the nature of the problem,
and can include one or more of the following:
Cumulative risks due to exposure to stresses of all types;
Factors that increase the potential for exposure;
Limitations of the infrastructure that exacerbate stresses or the effects of stresses;
Existing health impairments that can affect sensitivity to additional stresses;
Existing health impairments that result from the stresses under consideration;
Existing levels of government response actions;
Ability of community members to participate in the decisionmaking process; and
The economic well-being of the community and its members.
At the Screening-Level Assessment, some consideration should be given to all of these
endpoints. It is useful to attempt to collect as much information as possible about the community
of concern and its situation, recognizing that not all data will be readily available, nor will all
data be relevant to the particular circumstances. Nevertheless, a broad view of the situation at
the screening level will ensure that the range of community concerns and issues about overall
quality of life can be taken into account in the decisionmaking process. Otherwise, EPA in
general, and the Assessment Team, in particular, might not be aware of conditions or subtleties
of the situation that are important to the residents. Based on the findings of the Screening-Level
Assessment, efforts in more Refined Assessments might focus on several or a few of these
endpoints.
4.1.7 Indicators for the Assessment
A next step in problem formulation is determining which Environmental Justice
Indicators will be used to assess the endpoints identified above. As described in Section 3.3 of
this Toolkit, several different measures can indicate the status or trends in each of the
assessment endpoints identified above. Evaluation of more than one indicator for the same
endpoint can provide a more clear picture of the relationships among actions, environmental
Final - November 3, 2004 Page 61
-------
changes, and resulting effects on the quality of life. Thus, all of the indicators identified with an
(S) in Section 3.3 should be considered when determining which ones to actually use. Factors
that will influence which indicators are selected for the screening assessment include resources,
data availability, and relevance to the problem (e.g., proactive or retrospective assessment of
environmental justice). See Section 3.3 for further guidance on the selection of indicators for the
assessment.
4.1.8 Conceptual Model
One of the key products of problem formulation is a conceptual model of the problem,
which might include a flow diagram of causes and effects and a map of the community of
concern relative to a larger community. At the screening stage, the conceptual model would be
relatively simple and serve as a communication tool among the Assessment Team, the
community of concern, and other stakeholders. It provides a concrete expression of the current
understanding of the problem, and allows other participants to identify parameters that might be
missing from the model. At the screening level, the conceptual model also identifies those
parameters for which data will not be collected during the Screening-Level Assessment, and for
which conservative assumptions might be adopted for the analyses that follow. In the more
Refined Assessment, a formal diagram of the conceptual model identifies all of the linkages and
interactions inherent in the system, all assessment endpoints and indicators for those endpoints,
as well as the information gleaned from the Screening-Level Assessment.
4.1.9 Analysis Plan
The final product of problem formulation is the assessment or analysis plan. The analysis
plan specifies the participants and their responsibilities, the time-frame and level of effort for the
assessment, which Environmental Justice Indicators will be evaluated, which data sources will be
used or investigated, the processes by which data will be gathered, milestones in the process, and
decisions that the screen will be used to support. At the screening level, the plan for data
collection might be as simple as scheduling a meeting with community representatives and a
walking tour of the area, specifying who will participate in those activities. An advantage of
developing a written analysis plan is that participants in the assessment, representatives of the
community of concern, and other stakeholders can "weigh in" and perhaps suggest improvements
to the plan. If stakeholders accept the analysis plan at the beginning of the assessment, it is much
more likely that they will accept the results of the assessment.
In some contexts, the analysis plan for a Screening-Level Assessment might simply call
for the collection of data in Phase 2 to initially screen areas and populations for the potential for
environmental justice concerns. Only those areas and populations identified in Phase 2 would be
carried through the remaining steps in the screening analysis.
Final - November 3, 2004 Page 62
-------
If the Refined Assessment is being conducted, a more detailed description of the data
gathering steps, models to be used (e.g., to estimate dispersion and exposure), and bases for
decisions (e.g., risk level exceeding 10~5, statistical difference with p < 0.10 instead of p < 0.05)
should be specified in the analysis plan.
4.2 PHASE 2: DATA COLLECTION
The purpose of this phase is to collect data on: (1) the environmental actions or entities
(e.g., a facility) that create the environmental and health effects; and (2) the community of
concern where these impacts will be manifested.
4.2.1 Identification of Environmental Sources of Stress and Likelihood of Exposures
At this stage, the Assessment Team would identify sources of environmental stressors
being placed (or potentially placed) on the community of concern, such as emitting facilities. For
a prospective assessment of the consequences of a specific decision or proposed activity, all
sources of stress that might stem from the decision or activity should be identified. For example,
if the environmental justice assessment is being conducted in the context of a specific permitting
action or NEPA analysis, the source (i.e., the facility or operation) will be known. In a
rulemaking, identifying the potential sources of stressors maybe included as part of the
Regulatory Impact Analysis (RIA). In addition, the other pressures to which the community
already is subjected should be identified.
In cases where the Agency is responding to an allegation about health impacts from
unknown sources or multiple potential sources, EPA should review potential sources in the area
and assess emissions pathways that may cause the effects described in the allegation. This
review should include analysis of background sources (e.g., mobile source air emissions, non-
point source runoff) whose air, water, noise and/or other emissions may together affect a
population.
At the screening level, the most common indicators of environmental sources of stress
and the likelihood of exposure to those stresses include:
the number of environmentally regulated facilities within a community;
the proximity of those facilities to the majority of the community's population and
the proximity of special groups within the community (e.g., schools) to multiple
stresses,
and behavioral factors that could affect exposure of the community, such as
subsistence fishing and gardening.
Tables 3-1 and 3-2 of the previous chapter provide more information on potential Environmental
Indicators of stress and possible sources of data for those indicators.
Final - November 3, 2004 Page 63
-------
Often a first screening step is to conduct a Proximity Analysis, which involves mapping
the locations of the sources of environmental stress in relation to the location of communities, in
order to identify those populations most likely to be exposed to the stresses. This type of analysis
is helpful when people living closer to a source are likely to be exposed to higher levels of stress
(e.g., soil contaminants or noise) than people living further from the source. Likewise, an
affected population may not be limited to those people in close proximity to a source. For
example, water pollution in a river may affect populations significantly downstream.
The Proximity Analysis can be conducted two ways: from the perspective of the facilities
and from the perspective of individuals or groups in the community. From the perspective of the
facility, the indicator expresses the proximity of individual facilities to the majority of the
community's population. From the perspective of individual groups, the indicator expresses the
number of different sources to which an individual or group of individuals might be exposed, i.e.,
the proximity to multiple contaminant sources indicator. At a screening level, for example, that
indicator might be assessed for a school, which is found to be generally downwind of three
different sources of air contaminants.
A more refined estimate of the likelihood of exposure can be developed using the Total-
Mass-Release Analysis. That approach takes into consideration not only the location of the
sources, but also the quantities of pollutants emitted from those sources. This type of analysis
helps to identify those sources releasing the largest quantities of contaminants to the environment
and those that might release what is considered a de minimis amount (e.g., would be diluted to
non-hazardous levels upon release into the air or water). This analysis requires information on
the quantities released to the environment, and those data are often obtained from national
databases. In more refined analyses, a GIS platform might be used to provide a spatial overlay of
the location of sources and total mass released with the locations of community residences,
schools, and work places. The GIS platform also would allow a more precise assessment of the
number of contaminant sources to which a subgroup of individuals might be exposed.
4.2.2 Collection of Data on Affected Area and Reference Community
The purpose of this step is to collect health, social, and economic indicator data on the
community of concern and the reference community (or communities). This information will be
used in later analyses to determine the potential for adverse effects on the community of concern
and to determine whether those effects are disproportionate, compared to the reference
community.
Data should be collected on the existing health conditions of the community to be used
later in assessing the potential for adverse effects on human health. Indicators that might be used
in a Refined Assessment of existing health conditions include existing levels of infant and adult
mortality and morbidity, birth weight, and life expectancy at birth. Data for those indicators
generally are not available at the screening level. Thus, consideration of those indicators at the
Final - November 3, 2004 Page 64
-------
screening level might be restricted to self-reporting by the community concerning infant
mortality, etc. In the absence of information on health conditions, qualitative information on
factors such as diet, smoking, and the other factors that can influence health status listed above
can be sought from representatives of the community of concern and the reference community.
Tables 3-5 and 3-6 of the previous chapter provide more information on potential Health
Indicators and possible sources of data for those indicators. In addition, data should also be
collected on factors that might increase the vulnerability of the community to stress, including
access to health care services (see Table 3-8);
Specific Social and Economic Indicators that should be collected are identified in Section
3.3.3 of the previous chapter, and data sources are provided in Tables 3-7 through 3-11. Some of
these data may be used later to determine the appropriate actions that the Agency might take to
alleviate concerns about lack of participation in the decisionmaking process. These indicators
include the following:
Ethnic or minority status, language(s) spoken, age distribution (see Table 3-7);
Level of commitment of the local, state, or federal government to providing
information to and encouraging participation of the community (see Table 3-9);
Existing levels of community participation in environmental decisionmaking (see
Table 3-10); and
The economic status of the community and its members (see Table 3-11).
At the screening level, EPA might use readily available data, such as national or state-
wide statistics, to compare to the community of concern, as specified in the analysis plan
developed during Problem Formulation. In more Refined Assessments, the reference population
might be carefully chosen to emphasize certain characteristics of the population or to represent
the likely jurisdictional entities that might be involved with a solution (e.g., county, city or
municipality). Throughout this data collection process, it will be important to collect comparable
data for the community of concern and the reference community.
Historically, environmental justice concerns have focused on populations considered to be
minority and/or low income. However, since environmental justice is defined as the fair treatment of
all people, characterization of the community of concern is intended to assist EPA in choosing its
course of action to address the situation. For example, if this step reveals that the community of
concern is similar in economic status to the national norm (e.g., median values of unemployment, value
of homes), but is low-income with respect to the other communities in that county, EPA may assist or
work with the county in completing the assessment. If the community does appear to be a minority
and/or low-income area, EPA might assume more responsibility for determining the potential for
disproportionately high and adverse impacts on that community, and identifying solutions.
Final - November 3, 2004 Page 65
-------
4.3 PHASE 3: ASSESSMENT OF THE POTENTIAL FOR
"ADVERSE" ENVIRONMENTAL AND HUMAN HEALTH
EFFECTS OR IMPACTS
The purpose of this phase is to use the data collected on environmental stresses and the
community to determine whether the stresses are likely to cause adverse environmental and
human health/welfare impacts, taking into account community-specific considerations. Within
this context, the term adverse effect or adverse impact means the entire compendium of
"significant" (as defined by the National Environmental Policy Act) individual or cumulative
human health or environmental effects that may result from a proposed project or action.
Examples of adverse effects include but are not limited to:
Bodily impairment, infirmity, illness, or death;
Air, noise, soil, and water pollution or contamination;
Destruction or disruption of man-made or natural resources;
Destruction or disruption of aesthetic values;
Destruction or disruption of community cohesion or a community's economic
vitality;
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; and
Increased traffic congestion, isolation, exclusion, or separation of individuals
within a community or from a broader community.
4.3.1 Assessment of Potential for "Adverse" Environmental Effects or Impacts
The first step in the analysis is to determine whether the proposed actions or existing
situation, either alone or in combination with other sources of stress in the environment, might
cause adverse impacts on the environment in which the members of the community live and
work. This can be done from two perspectives: one is to determine the potential effects of the
stresses on the environment, and the other is to look at characteristics of the environment that
might influence its potential vulnerability to those stresses.
The endpoints for this step include environmental conditions such as air and water
quality, contaminants in soils and drinking water, and ambient concentrations of toxic substances
outdoors and indoors. Indicators of existing environmental conditions include what is known
about levels of contaminants in the air, water, soils, and other environmental media, including
plants and animals. Table 3-3 of the previous chapter provides more information on potential
indicators of environmental conditions and possible sources of data for those indicators.
Information on existing conditions is important to the assessment of an alleged existing
Final - November 3, 2004 Page 66
-------
environmental injustice situation. Information on existing conditions also is important for
prospective assessments, in which new sources might add to the existing contamination that is at
levels already near environmental quality limits.
In addition to existing levels of environmental contamination, other factors can increase
or decrease the likelihood that new stresses would cause adverse environmental impacts. These
include features of the environment such as climate, hydrogeomorphic features, and the presence
of ecologically sensitive areas. At the screening level, the Assessment Team would evaluate
readily available information qualitatively. For example, is the area frequently subject to thermal
inversions in the air that can trap contaminants at ground level? Does the area include known
wetlands, national, state, or local parks for the protection of wildlife? Table 3-4 of the previous
chapter provides more information on potential indicators of environmental vulnerability and
possible sources of data for those indicators.
At the screening level, this step might be very rudimentary, because environmental
monitoring data usually are not readily available and site-specific fate and transport models can
require a substantial level of effort. However, for prospective assessments, the Assessment Team
can generally rely on the impact analyses conducted under the related program initiative such as a
NEPA review or a permitting evaluation. The Assessment Team should consult with experts in
the field of potential impact. For example, if there is concern about a potential air impact, the
Office of Air and Radiation should be consulted. In addition, EPA has reviewed several
assessment tools as part of an effort to identify and develop methods for conducting impact
assessment. The findings were presented in the December 1998 report (An SAB Report: Review
of Disproportionate Impact Methodologies; A Review by the Integrated Human Exposure
Committee (IHEC) of the Science Advisory Board (SAB). The report is on the Internet at
http://www.epa.gov.sab/ihec9907.pdf.)
For allegations of existing environmental injustice situations, readily available data
sources might not provide information for the area of concern, particularly if the scope of the
assessment is at the county or sub-county level.
In the Refined Assessment, this step can involve using monitoring data for contaminants
in the environment. Where such data are unavailable or insufficient for the assessment, a
Refined Assessment might include analytical models and site-specific data that can be used to
determine contaminant concentrations in environmental media by location. For example, EPA
may use an air dispersion simulation model to estimate the air concentrations of contaminants
downwind from a source. The area over which contaminants might spread from a source may be
irregularly shaped due to environmental factors or other conditions such as wind direction,
stream direction, or topography. A GIS platform could allow estimates of the spatial extent of air
contaminants exceeding different benchmarks for risk.
Final - November 3, 2004 Page 67
-------
If a Refined Assessment indicates that releases from existing facilities exceed established
environmental or human health benchmarks, the appropriate EPA program office or the Office of
Enforcement and Compliance Assurance should be notified so they may take appropriate action
under environmental laws and regulations. Exceedances of current ambient or exposure
standards is considered an indication of the potential for adverse impacts.
4.3.2 Assessment of Potential for "Adverse" Human Health Impacts
The second step in the analysis is to determine whether the community of concern might
be exposed to environmental stresses or pressures of sufficient magnitude to potentially cause
adverse effects on their health or welfare. This can be done from two perspectives: one is to
determine the potential effects of the stressors, and the other is to look at the population's current
health status and its potential vulnerability to those stressors. How this step is conducted
depends on whether the assessment is prospective or retrospective. A prospective assessment
basically is a risk assessment to assess the likelihood of future impacts, which is typically done as
part of a decisionmaking process. A retrospective analysis of an existing situation is a risk
assessment to determine whether the sources and contaminants at issue could be causing the
existing effects (i.e., there are exposures above toxicity reference values for those contaminants)
and a weight-of-evidence assessment, which estimates the likelihood that the contaminants are
causing the effects.
Existing Health Conditions
Both a risk assessment and a weight-of-evidence assessment involve examination of the
data collected on the existing health conditions in the community of concern. Regardless of
whether the existing health conditions can be attributed to specific sources of environmental
stress, such information does indicate whether the community might be more sensitive to some
stresses than other communities. People with poor or compromised health status, whether from
exposure to environmental contaminants, genetics (e.g., sickle cell anemia), poor nutrition,
obesity, smoking, or abuse of alcohol or drugs, can be less resistant to infections (i.e., have a
compromised immune system) and less capable of detoxifying contaminants absorbed into their
systems (i.e., have compromised liver function) than people in better health.
Potential for Adverse Effects or Impacts from Stressors Under Consideration
For prospective environmental justice assessments that evaluate a proposed action or
policy and its alternatives, this step basically represents a prospective health risk assessment. A
health risk assessment for chemical contaminants compares likely contaminant exposure
concentrations and intake with information on the toxicity of the contaminants. At the screening
level, the risk assessment is largely qualitative. The Environmental Justice Assessment Team
would compare the available indicators of exposure to readily available information on the
toxicity of the contaminants (e.g., from IRIS). In more Refined Assessments, the tools of
quantitative risk assessment would be employed.
Final - November 3, 2004 Page 68
-------
At the screening level, various approaches are possible depending on the type of
information gathered in the previous steps. For example, if sufficient data were available to
conduct a Total-Mass-Release analysis (discussed in Phase 2), a Toxicity Analysis might be
conducted that, in conjunction with the Total-Mass-Released Analysis, identifies toxicity-
weighted emissions that may be associated with significant risks. For this analysis, existing
health benchmarks or data on the toxicity of each chemical stressor are identified to assess
relative toxicity. Combining information on the total mass released and relative chemical
toxicity provides a more accurate indicator of health risks associated with emissions than is
possible using one or the other type of analysis alone. For example, EPA could assess each
chemical stressor at a source, multiply it by a chronic toxicity potency score, then sum the
products across chemicals to yield a total toxicity-weighted stressor score per source. Sources
with higher levels of weighted stressors would be expected to be associated with a higher
likelihood of causing potential adverse impacts. This approach can be limited by a lack of
appropriate toxicity benchmarks for comparison for some chemicals.
If the previous analysis on adverse environmental impacts indicates measures or estimates
of the concentrations of some contaminants in environmental media, those can be compared with
chemical-specific environmental quality benchmarks for those media (e.g., water quality criteria)
to estimate whether any of the benchmarks have been exceeded. In the absence of benchmarks
for some chemicals, risks to the community of concern can be compared with risks to the
reference community by comparing the indicators of exposure to the same contaminant for the
two communities. Another measure of risk would be the number of contaminants to which only
the community of concern is exposed (i.e., to which the reference community is not likely to be
exposed). Where conservative assumptions have been used in the exposure or toxicity
assessment, the same assumptions should be applied to both the community of concern and the
reference community.
Usually at the screening level, only a comparative assessment of some of the risk factors
is conducted for the community of concern and the reference community. To facilitate that
comparison, it can be helpful to simply rank the potential magnitude of the indicator values for
each community as low, medium, or high. Establishing the comparative assessment in this step
will facilitate the conduct of the final assessment (Phase 4). More refined analyses that can
predict risks of "adverse" health effects require a more complete exposure assessment including
site-specific information.
Evidence of Impacts Possibly Due to Stressor
It usually is very difficult to prove that an existing source or set of contaminants is
responsible for observed adverse health effects. Environmental justice indicators do not reveal
cause-and-effeet relationships. For example, although indicators may reveal both a high
incidence of cancer and a generally low-income population in the same area, those factors alone
do not necessarily show an environmental injustice situation unless there is a link between the
Final - November 3, 2004 Page 69
-------
cancer and contamination in the area. Even if indicators do demonstrate that there are a large
number of pollution-generating facilities within that area, further examination would be needed
to show that these facilities, in fact, are contributing to the environmental stressors causing health
effects.
At the screening level, a retrospective assessment of an alleged environmental injustice
situation can be based on a simple risk assessment (as described above) that indicates whether or
not the alleged sources could possibly be causing the alleged effects. Could the population be
exposed at high levels or levels exceeding toxicity benchmarks? Are the observed health effects
in the community consistent with the effects that are known to be caused by the contaminants at
issue? If the answer to either of those questions is no, it is unlikely that a cause-and-effect
relationship exists between the alleged sources and the alleged health effects.
If the answer to both of those questions is yes, then several lines of evidence can help
determine whether the sources or set of contaminants are causing adverse health effects in the
community. These include:
Evidence that other known sources or contaminants cannot be causing or
contributing to the observed effects;
Temporal consistency (e.g., the particular health effects did not appear until after
the facility started operation or contaminants were released into the environment);
and
Demonstration of a stressor-response relationship (e.g., the health effects become
more frequent and more severe the closer the residences are to the source).
Assessment of these or other further lines of evidence generally is only possible in more Refined
Assessments.
At this stage of the assessment, the Assessment Team might be able to conclude that a
proposed activity or an existing source is unlikely to cause any adverse effects on the
environment (e.g., water quality standards would not be or are not exceeded) or pose risks to
human health (e.g., estimated cancer risk less than one in one million). Or, the Assessment Team
might conclude that the situation is more appropriately addressed under the lead of another
federal, state, or local agency. If it is not possible to conclude with an acceptable level of
certainty that there are negligible risks of adverse effects on the community, the assessment
continues to Phase 4.
Final-November 3, 2004 Page 70
-------
4.4 PHASE 4: ASSESSMENT OF THE POTENTIAL FOR
"DISPROPORTIONATELY HIGH AND ADVERSE" EFFECTS OR
IMPACTS
The purpose of this final analysis is to assess whether the incidence and severity of
adverse impacts that might result from the sources of stressors identified above is
disproportionately higher in the community of concern than in the reference community.
Because the definition of environmental justice assumes a relative comparison of impact
("disproportionate share of negative environmental consequences"), the indicators of community
trends are examined within the context of the reference area outside the community. Thus, the
affected area is examined/evaluated in a way to show that it is distinct from the larger reference
community. While indicators may suggest that a community is adversely affected, until those
impacts are compared to impacts on an appropriate reference community, the community of
concern cannot be classified as disproportionately affected. In other words, an adverse impact is
not necessarily an environmental injustice impact. An action that equally affects many may be an
adverse effect, but would not necessarily trigger environmental justice concerns.
In this context, the term disproportionately high and adverse effects or impacts means an
adverse effect or impact that: (1) is predominately borne by any segment of the population,
including a minority population and/or a low-income population; or (2) will be suffered by a
minority population and/or low-income population and is appreciably more severe or greater in
magnitude than the adverse effect or impact that will be suffered by a non-minority population
and/or non-low-income population.
At the Screening-Level Assessment phase, it is appropriate to rely on some evidence of
different potentials for disproportionate exposure and adverse impacts in the community of
concern compared with the reference community. In the more refined analyses, the differences
should be assessed quantitatively.
To assess whether the potential for adverse impacts is disproportionately high in the
affected area or not, the Assessment Team would use the information obtained in the earlier steps
of the screen to compare, to the extent possible, the likelihood, magnitude, and severity of
potential impacts on the community of concern compared with the likelihood, magnitude, and
severity of potential impacts on the reference population(s). At the Screening-Level, this
determination might involve qualitative comparisons between the two groups. In a more Refined
Assessment, the determination might involve an assessment of statistically significant differences
between the two groups in one or more measures of risk.
By the end of this phase in a Screening-Level Assessment, the Assessment Team should
be able to determine whether or not potential or existing adverse effects or impacts on the
community of concern might be disproportionately high relative to one or more reference
Final-November 3, 2004 Page 71
-------
communities. If they are not disproportionately high in the community of concern, the situation
may not warrant a more detailed assessment. That is not to say that a problem does not exist, just
that the impacts are evenly spread (i.e., all surrounding communities are equally affected) and
needs to be addressed from that perspective, not with an emphasis on environmental justice. For
EPA, there is an additional decision to be made by the end of Phase 4: whether or not this an
environmental injustice situation in which EPA can be of assistance. If the answer to that
question is no, the responsibility for further assessment and definition of solutions might be
shifted to those entities capable of providing the actions needed to address the injustice.
At the Screening-Level Assessment, Phase 4 concludes with a decision of whether an
additional assessment is appropriate. If an environmental injustice situation cannot be ruled out
on the basis of the Screening-Level Assessment, the more refined analysis would be appropriate.
The screen should have provided some information by which to further refine the problem to be
addressed and provided an idea of which indicators are likely to be most useful in a more refined
analysis. The screen also should have indicated whether EPA should continue its lead in the
assessment or shift responsibilities for further assessment to other entities.
Final-November 3, 2004 Page 72
-------
5. CONCLUSION
As intended, this Toolkit provides analytical tools for EPA staff to use in assessing the
environmental and human health concerns of community residents. It sets forth various research
tools and provides a systematic approach for gathering and analyzing data related to
environmental, social, economic, and health-related technical information to determine whether
or not an environmental justice situation appears to exist or may be avoided altogether. This
Toolkit will enable EPA employees to better analyze allegations of environmental injustice, and,
will hopefully serve as a tool for proactively preventing environmental justice concerns from
occurring in the future.
Final-November 3, 2004 Page 73
-------
APPENDIX
-------
Appendix A
Memorandum (December 1, 2000) from Gary Guzy, General Counsel,
to EPA Assistant Administrators
MEMORANDUM
SUBJECT: EPA Statutory and Regulatory Authorities Under Which Environmental Justice
Issues May Be Addressed in Permitting
FROM: Gary S. Guzy //signed//
General Counsel
Office of General Counsel (2310A)
TO: Steven A. Herman
Assistant Administrator
Office of Enforcement and Compliance Assistance (2201 A)
Robert Perciasepe
Assistant Administrator
Office of Air and Radiation (6101 A)
Timothy Fields, Jr.
Assistant Administrator
Office of Solid Waste and Emergency Response (5101)
J. Charles Fox
Assistant Administrator
Office of Water (4101)
This memorandum analyzes a significant number of statutory and regulatory authorities
under the Resource Conservation and Recovery Act, the Clean Water Act, the Safe Drinking
Water Act, the Marine Protection, Research, and Sanctuaries Act, and the Clean Air Act that the
Office of General Counsel believes are available to address environmental justice issues during
permitting. The use of EPA's statutory authorities, as discussed herein, may in some cases
involve new legal and policy interpretations that could require further Agency regulatory or
interpretive action. Although the memorandum presents interpretations of EPA's statutory
authority and regulations that we believe are legally permissible, it does not suggest that such
actions would be uniformly practical or feasible given policy or resource considerations or that
there are not important considerations of legal risk that would need to be evaluated. Nor do we
assess the relative priority among these various avenues for addressing environmental justice
concerns. We look forward to working with all your offices to explore these matters in greater
detail.
Final -- November 3, 2004
Page A-l
-------
I. Resource Conservation and Recovery Act (RCRA)
RCRA authorizes EPA to regulate the generation, transportation, treatment, storage, and
disposal of hazardous wastes and the management and disposal of solid waste. EPA issues
guidelines and recommendations to State solid waste permitting programs under RCRA sections
1008(a), 4002, or 4004 and may employ this vehicle to address environmental justice concerns.
The primary area where environmental justice issues have surfaced, however, is in the permitting
of hazardous waste treatment, storage, and disposal facilities (e.g., incinerators, fuel blenders,
landfills). Pursuant to RCRA section 3005, EPA is authorized to grant permits to such facilities
if they demonstrate compliance with EPA regulations.
Upon application by a State, EPA may authorize a State's hazardous waste program to
operate in lieu of the Federal program, and to issue and enforce permits. The State's program
must be equivalent to the Federal program to obtain and retain authorization. When EPA adopts
more stringent RCRA regulations (including permit requirements), authorized States are required
to revise their programs within one year after the change in the Federal program or within two
years if the change will necessitate a State statutory amendment. 40 CFR § 271.21(e). EPA and
most authorized States have so-called "permit shield" regulations, providing that, once a facility
obtains a hazardous waste permit, it generally cannot be compelled to comply with additional
requirements during the permit's term.
The scope of EPA's authority to address environmental justice issues in RCRA hazardous
waste permits was directly addressed by the Environmental Appeals Board (EAB) in Chemical
Waste Management. Inc.. 6 E.A.D. 66, 1995 WL 395962 (1995)
(http://www.epa.gov/eab/disk 11 /cwmii.pdf). The Board found "that when the Region has a basis
to believe that operation of the facility may have a disproportionate impact on a minority or low-
income segment of the affected community, the Region should, as a matter of policy, exercise its
discretion to assure early and ongoing opportunities for public involvement in the permitting
process." Id at 73. It also found that RCRA allows the Agency to "tak[e] a more refined look at
its health and environmental impacts assessment in light of allegations that operation of the
facility would have a disproportionately adverse effect on the health or environment of low-
income or minority populations." Id. at 74. Such a close evaluation could, in turn, justify permit
conditions or denials based on disproportionately high and adverse human health or
environmental effects, while "a broad analysis might mask the effects of the facility on a
disparately affected minority or low-income segment of the community." Id. However, while
acknowledging the relevance of disparities in health and environmental impacts, the Board also
cautioned that "there is no legal basis for rejecting a RCRA permit application based solely upon
alleged social or economic impacts upon the community." Id. at 73.
Consistent with this interpretation, there are several RCRA authorities under which EPA
could address environmental justice issues in permitting:
Final -- November 3, 2004 Page A-2
-------
A. Hazardous Waste Treatment, Storage and Disposal
1. RCRA section 3005(c)(3) provides that "[e]ach permit issued under this section shall
contain such terms and conditions as the Administrator (or the State) determines
necessary to protect human health and the environment." EPA has interpreted this
provision to authorize denial of a permit to a facility if EPA determines that operation of
the facility would pose an unacceptable risk to human health and the environment and
that there are no additional permit terms or conditions that would address such risk. This
"omnibus" authority maybe applicable on a permit-by-permit basis where appropriate to
address the following health concerns in connection with hazardous waste management
facilities that may affect low-income communities or minority communities:
a. Cumulative risks due to exposure from pollution sources in addition to the
applicant facility;
b. Unique exposure pathways and scenarios (e.g., subsistence fishers, farming
communities); or
c. Sensitive populations (e.g., children with levels of lead in their blood, individuals
with poor diets).
2. RCRA section 3013 provides that if the Administrator determines that "the presence of
any hazardous waste at a facility or site at which hazardous waste is, or has been, stored,
treated, or disposed of, or the release of any such waste from such facility or site may
present a substantial hazard to human health or the environment," she may order a facility
owner or operator to conduct reasonable monitoring, testing, analysis, and reporting to
ascertain the nature and extent of such hazard. EPA may require a permittee or an
applicant to submit information to establish permit conditions necessary to protect human
health and the environment. 40 CFR § 270.10(k). In appropriate circumstances, EPA
could use the authority under section 3013 or 40 CFR § 270.10(k) to compel a facility
owner or operator to carry out necessary studies, so that, pursuant to the "omnibus"
authority, EPA can establish permit terms or conditions necessary to protect human health
and the environment.
3. RCRA provides EPA with authority to consider environmental justice issues in
establishing priorities for facilities under RCRA section 3005(e), and for facilities
engaged in cleaning up contaminated areas under the RCRA corrective action program,
RCRA sections 3004(u), 3004(v), and 3008(h). For example, EPA could consider factors
such as cumulative risk, unique exposure pathways, or sensitive populations in
establishing permitting or clean-up priorities.
4. EPA adopted the "RCRA Expanded Public Participation" rule on December 11, 1995.
See 60 Fed. Reg. 63417. RCRA authorizes EPA to explore further whether the RCRA
permit public participation process could better address environmental justice concerns
Final -- November 3, 2004 Page A-3
-------
by expanding public participation in the permitting process (including at hazardous waste
management facilities to be located in or near low-income communities or minority
communities).
5. In expanding the public participation procedures applicable to RCRA facilities, EPA also
would have authority to expand the application of those procedures to the permitting of:
(a) publicly owned treatment works, which are regulated under the Clean Water Act; (b)
underground injection wells, which are regulated under the Safe Drinking Water Act; and
(c) ocean disposal barges or vessels, which are regulated under the Marine Protection
Research and Sanctuaries Act. These facilities are subject to RCRA's permit by rule
regulations, 40 CFR § 270.60, and are deemed to have a RCRA permit if they meet
certain conditions set out in the regulations. 40 CFR § 270.60.
6. EPA's review of State-issued permits provides additional opportunities for consideration
of environmental justice concerns. Where the process for a State-issued permit does not
adequately address sensitive population risks or other factors in violation of the
authorized State program, under the regulations EPA could provide comments on these
factors (in appropriate cases) during the comment period on the State's proposed permit
on a facility-by-facility basis. 40 CFR § 271.19(a). Where the State itself is authorized
for RCRA "omnibus" authority and does not address factors identified in EPA comments
as necessary to protect human health and the environment, EPA may seek to enforce the
authorized State program requirement. 40 CFR § 271.19(e) Alternatively, if the State is
not authorized for "omnibus" authority, EPA may superimpose any necessary additional
conditions under the "omnibus" authority in the federal portion of the permit. These
conditions become part of the facility's RCRA permit and are enforceable by the United
States under RCRA section 3008 and citizens through RCRA section 7002.
7. RCRA section 3019 provides EPA with authority to increase requirements for applicants
for land disposal permits to provide exposure information and to request that the Agency
for Toxic Substances and Disease Registry conduct health assessments at such land
disposal facilities.
8. RCRA section 3004(o)(7) provides EPA with authority to issue location standards as
necessary to protect human health and the environment. Using this authority, EPA could,
for example, establish minimum buffer zones between hazardous waste management
facilities and sensitive areas (e.g., schools, areas already with several hazardous waste
management facilities, residential areas). Facilities seeking permits would need to
comply with these requirements to receive a permit.
9. RCRA-permitted facilities are required under RCRA section 3004(a) to maintain
"contingency plans for effective action to minimize unanticipated damage from any
treatment, storage, or disposal of... hazardous waste." Under this authority, EPA could
require facilities to prepare and/or modify their contingency plans to reflect the needs of
Final -- November 3, 2004 Page A-4
-------
environmental justice communities that have limited resources to prepare and/or respond
to emergency situations.
10. RCRA additionally provides EPA with authority to amend its regulations to incorporate
some of the options described in 1 through 6 above so they become part of the more
stringent federal program that authorized States must adopt.
II. Clean Water Act (CWA)
The CWA was adopted "to restore and maintain the chemical, physical, and biological
integrity of the Nation's waters." To achieve this goal, Congress prohibited the discharge from a
point source of any pollutant into a water of the United States unless that discharge complies
with specific requirements of the Act. Compliance is achieved by obtaining and adhering to the
terms of an NPDES permit issued by EPA or an authorized State pursuant to section 402, or a
dredge and fill permit issued by the Army Corps of Engineers or an authorized State pursuant to
section 404.
NPDES permits must contain: (1) technology-based limitations that reflect the pollution
reduction achieved through particular equipment or process changes, without reference to the
effect on the receiving water and (2) where necessary, more stringent limitations representing
that level of control necessary to ensure that the receiving waters achieve water quality standards.
Water quality standards consist of (1) designated uses of the water (e.g., public water supply,
propagation of fish, or recreation); (2) criteria to protect those uses including criteria based on
protecting human health and aquatic life; and (3) an antidegradation policy. EPA requires that
States designate all waters for "fishable/swimmable" uses unless such uses are not attainable.
EPA issues water quality criteria guidance to the States pursuant to CWA section 304(a).
Permits issued under CWA section 404 authorize the discharge of "dredged or fill
material" to waters of the United States. The types of activities regulated under section 404
include filling of wetlands to create dry land for development, construction of berms or dams to
create water impoundments, and discharges of material dredged from waterways to maintain or
improve navigation. Section 404 permits issued by the Corps of Engineers must satisfy two sets
of standards: the Corps' "public interest review" and the section 404(b)(l) guidelines
promulgated by EPA. The public interest review is a balancing test that requires the Corps to
consider a number of factors, including economics, fish and wildlife values, safety, food and
fiber production and, public needs and welfare in general. 33 CFR § 320.4(a). The section
404(b)(l) guidelines provide that no permit shall issue if: (1) there are practicable,
environmentally less damaging alternatives, (2) the discharge would violate water quality
standards or jeopardize threatened or endangered species, (3) the discharge would cause
significant degradation to the aquatic ecosystem, or (4) if all reasonable steps have not been taken
to minimize adverse effects of the discharge. 40 CFR § 230.10.
There are several CWA authorities under which EPA could address environmental justice
issues in permitting:
Final -- November 3, 2004 Page A-5
-------
A. State Water Quality Standards
States are required to review their water quality standards every three years and to submit
the results of their review to EPA. CWA section 303(c)(l). EPA Regional offices must approve
or disapprove all new or revised State water quality standards pursuant to section 303(c)(3).
EPA will approve State standards if they are scientifically defensible and protective of designated
uses. 40 CFR § 131.11. If a State does not revise a disapproved standard, EPA is required to
propose and promulgate a revised standard for the State. Section 303(c)(4)(A). The
Administrator is also required to propose and promulgate a new or revised standard for a State
whenever she determines that such a standard is necessary to meet the requirements of the Act
and the State does not act to adopt an appropriate standard. CWA section 303(c)(4)(B).
1. State water quality standards currently are required to provide for the protection of
"existing uses." 40 CFR § 131.12(a)(l). These are defined as uses actually attained in the
water body on or after November 28, 1975. 40 CFR § 131.3(e). To the extent that
minority or low-income populations are, or at any time since 1975 have been, using the
waters for recreational or subsistence fishing, EPA could reinterpret the current
regulations to require that such uses, if actually attained, must be maintained and
protected. The CWA provides EPA with authority to require, through appropriate means,
that high rates offish consumption by these populations be considered an "existing use"
to be protected by State water quality standards. Under the current regulations, existing
uses cannot be removed.
2. EPA regulations provide that all waters must be designated for the protection and
propagation of fish, shellfish, and wildlife and for recreation in and on the water
("fishable/swimmable") unless the State documents to EPA's satisfaction that such uses
are not attainable. 40 CFR § § 131.6(a), 131.100).
EPA interprets "fishable" uses under section 101(a) of the CWA to include, at a
minimum, designated uses providing for the protection of aquatic communities
and human health related to consumption of fish and shellfish. In other words,
EPA views "fishable" to mean that not only can fish and shellfish thrive in a
waterbody, but when caught, can also be safely eaten by humans (stated in
10/24/00 "Dear Colleague" letter from Geoffrey H. Grubbs, Director Office of
Science and Technology, and Robert H. Wayland, HI, Director Office of
Wetlands, Oceans and Watersheds). Therefore, EPA currently recommends that
in setting criteria to protect "fishable" uses, that the State/Tribe adjust the fish
consumption values used to develop criteria to protect the "fishable" use,
including fish consumption by subsistence fishers (USEPA 2000, Methodology
for Deriving Ambient Water Quality Criteria for the Protection of Human Health,
EPA-822-B-00-004, Chapter 2.1). For example, in deriving such criteria, states or
tribes could select their fish consumption value based on site-specific information
or a national default value for subsistence fishing (Chapter 4).
Final -- November 3, 2004 Page A-6
-------
In the future, EPA could reinterpret it regulations to mean that any human health
use must have a criterion that would protect consumption by subsistence fishers
unless there is a showing that water is not used for subsistence fishing.
3. The CWA provides EPA with authority to recommend that State CWA section 303(c)(l)
triennial reviews of water quality standards consider the extent to which State criteria
provide for protection of human health where there exists subsistence fishing. EPA
Regional offices may disapprove a criterion that does not provide protection to highly-
exposed populations. The Administrator further has the discretionary authority to
determine that such criteria are necessary to meet the requirements of the CWA and then
must promptly propose and promulgate such criteria.
4. Consistent with CWA section 101 (e), EPA could encourage States to improve public
participation processes in the development of State water quality standards through
greater outreach and by translating notices for limited English speaking populations
consistent with Executive Order 12898 on environmental justice.
B. Issuance of NPDES Permits
1. Assuming EPA adopts the interpretation described in paragraph A. 1., above, NPDES
permits issued for discharge to waters where a high level of fish consumption is an
"existing use" should contain limitations appropriate to protect that use. The CWA
provides EPA authority to take this approach when it issues NPDES permits in States not
authorized to run the NPDES program, and to object to or ultimately veto State-issued
permits that are not based on these considerations. CWA section 402(d).
2. Consistent with CWA section 101(e), where EPA issues NPDES permits, environmental
justice concerns can also be taken into account in setting permitting priorities and
improving public participation in the permitting process (greater outreach to minority
communities and low-income communities including translating notices for limited
English speaking populations consistent with Executive Order 12898 on environmental
justice).
3. CWA section 302 authorizes EPA to propose and adopt effluent limitations for one or
more point sources if the applicable technology-based or water quality-based
requirements will not assure protection of public health and other concerns. This
determination requires findings of economic capability and a reasonable relationship
between costs and benefits. The Agency has never used this authority, but could evaluate
whether this authority could be used with respect to pollutants of concern to minorities or
low-income communities. Prior to adopting such limitations by regulation, EPA could
use its authority under CWA section 402(a)(l) to incorporate such limitations in specific
NPDES permits issued by EPA. The Clean Water Act does not appear to provide any
general authority to impose conditions on or deny permits based on environmental justice
considerations that are unconnected to water quality impacts or technology-based
limitations.
Final -- November 3, 2004 Page A-7
-------
4. Pursuant to CWA section 104 and other authorities, EPA may provide technical
assistance to Indian Tribes, where appropriate, in the development of water quality
standards and the issuance of NPDES permits.
C. CWA Section 404
1. The broadest potential authority to consider environmental justice concerns in the CWA
section 404 program rests with the Corps of Engineers, which conducts a broad "public
interest review" in determining whether to issue a section 404 permit. In evaluating the
"probable impacts . . . of the proposed activity and its intended use on the public interest,"
the Corps is authorized to consider, among other things, aesthetics, general environmental
concerns, safety, and the needs and welfare of the people. 33 CFR § 320.4(a). This
public interest review could include environmental justice concerns.
2. EPA has discretionary oversight authority over the Corps' administration of the section
404 program (i.e., EPA comments on permit applications, can elevate Corps permit
decisions to the Washington, B.C. level, and can "veto" Corps permit decisions under
section 404(c) that would have an unacceptable adverse effect on "municipal water
supplies, shellfish beds and fishery areas, wildlife, or recreational areas"). The CWA thus
authorizes EPA to use these authorities to prevent degradation of these public resources
that may have a disproportionately high and adverse health or environmental effect on a
minority community or low-income community. Such effects can be addressed when
they result directly from a discharge of dredged or fill material (e.g., the filling of a
waterbody), or are the indirect result of the permitted activity (e.g., the fill will allow
construction of an industrial facility that will cause water pollution due to runoff).
III. Safe Drinking Water Act (SDWA)
The SDWA includes two separate regulatory programs. The Public Water Supply
program establishes requirements for the quality of drinking water supplied by public water
systems. This program contains no federal permitting. The Underground Injection Control
(UIC) program establishes controls on the underground injection of fluids to protect underground
sources of drinking water.
Under the UIC program, the Administrator must establish requirements for State UIC
programs that will prevent the endangerment of drinking water sources by underground injection.
EPA has promulgated a series of such requirements beginning in 1980. The SDWA also
provides that States may apply to EPA for primary responsibility to administer the UIC program.
EPA must establish a UIC permitting program in States that do not seek this responsibility or that
fail to meet the minimum requirements established by EPA.
There are several SDWA authorities under which EPA could address environmental
justice issues in UIC permitting:
Final -- November 3, 2004 Page A-8
-------
A. EPA-issued Permits
Underground injection must be authorized by permit or rule. The SDWA provides that
EPA can deny or establish permit limits where such injection may "endanger" public
health. "Endangerment" is defined to include any injection that may result in the
presence of a contaminant in a drinking water supply that "may...adversely affect the
health of persons." 40 CFR § 144.52(b)(l). As a result, in those States where EPA issues
permits and an injection activity poses a special health risk to minority or low-income
populations, the SDWA provides EPA with authority to establish special permit
requirements to address the endangerment or deny the permit if the endangerment cannot
otherwise be eliminated. As in its Chemical Waste Management RCRA permit appeal
decision discussed in Part I above, the EAB has addressed EPA's authority to expand
public participation and to consider disproportionate impacts in the UIC permitting
program. Envotech. 6 E.A.D. 260, 281, 1996 WL 66307 (1996)
(http://www.epa. gov/eab/disk 10/envotech.pdf).
B. Pending regulatory action
The Office of Water is currently revising the regulations under this program governing
"Class V" injection wells (i.e., shallow wells where nonhazardous waste is injected). In
determining which wells to regulate and the standards for those where EPA determines
regulations are necessary to prevent "endangerment," the SDWA provides EPA with
authority to take into account environmental justice issues such as cumulative risk and
sensitive populations.
C. Other regulatory actions
Likewise, the SDWA provides EPA with authority to address environmental justice
issues related to potential endangerment of drinking water supplies by injection for all
types of wells. For example, EPA could revise its regulatory requirements for siting
Class 1 (hazardous waste) wells to address cumulative risk and other risk-related
environmental justice issues.
IV. Marine Protection, Research, and Sanctuaries Act (MPRSA)
The MPRSA, commonly known as the Ocean Dumping Act, 33 USC § 1401 ff,
establishes a permitting program that covers the dumping of material into ocean waters. The
ocean disposal of a variety of materials, including sewage sludge, industrial waste, chemical and
biological warfare agents, and high level radioactive waste, is expressly prohibited.
EPA issues permits for the dumping of all material other than dredged material. 33
U.S.C. § 1412(a). The Army Corps of Engineers issues permits for the dumping of dredged
material, subject to EPA review and concurrence. 33 U.S.C. § 1413(a). (As a practical matter,
EPA issues very few ocean dumping permits because the vast majority of material disposed of at
Final -- November 3, 2004 Page A-9
-------
sea is dredged material.) EPA also is charged with designating sites at which permitted disposal
may take place; these sites are to be located wherever feasible beyond the edge of the Continental
Shelf. 33 U.S.C. § 1412(c)(l).
When issuing MPRSA permits and designating ocean dumping sites, EPA is to determine
whether the proposed dumping will "unreasonably degrade or endanger human health, welfare,
amenities, or the marine environment, ecological systems, or economic potentialities." 33 USC §
1412(a), (c)(l). EPA also is to take into account "the effect of... dumping on human health and
welfare, including economic, esthetic, and recreational values." 33 U.S.C. § 1412(a)(B), (c)(l).
Thus, in permitting and site designation, EPA has ample authority to consider such factors as
impacts on minority or low-income communities and on subsistence consumers of sea food that
would result from the proposed dumping. In addition, the MPRSA provides specifically that
EPA is to consider land-based alternatives to ocean dumping and the probable impact of
requiring use of these alternatives "upon considerations affecting the public interest." 33 U.S.C.
§ 1412(a)(G). This authorizes EPA to take impacts on minority populations or low-income
populations into account in evaluating alternative locations and methods of disposal of the
material that is proposed to be dumped at sea.
V. Clean Air Act (CAA)
There are several CAA authorities under which EPA could address environmental justice
issues in permitting:
A. New Source Review (NSR)
NSR is a preconstruction permitting program. If new construction or making a major
modification will increase emissions by an amount large enough to trigger NSR
requirements, then the source must obtain a permit before it can begin construction. The
NSR provisions are set forth in sections 110(a)(2)(C), 165(a) (PSD permits), 172(c)(5)
and 173 (NSR permits) of the Clean Air Act.
Under the Clean Air Act, states have primary responsibility for issuing permits, and they
can customize their NSR programs within the limits of EPA regulations. EPA's role is to
approve State programs, to review, comment on, and take any other necessary actions on
draft permits, and to assure consistency with EPA's rules, the state's implementation
plan, and the Clean Air Act. Citizens also play a role in the permitting decision, and must
be afforded an opportunity to comment on each construction permit before it is issued.
The NSR permit program for major sources has two different components-one for areas
where the air is dirty or unhealthy, and the other for areas where the air is cleaner. Under
the Clean Air Act, geographic areas (e.g., counties or metropolitan statistical areas) are
designated as "attainment" or "nonattainment" with the National Ambient Air Quality
Standards (NAAQS)-the air quality standards which are set to protect human health and
the environment. Permits for sources located in attainment (or unclassifiable) areas are
Final November 3, 2004 Page A-10
-------
called Prevention of Significant Deterioration (PSD) permits and those for sources
located in nonattainment areas are called NSR permits.
A major difference in the two programs is that the control technology requirement is more
stringent in nonattainment areas and is called the Lowest Achievable Emission Rate
(LAER). On the other hand, in attainment or PSD areas, a source must apply Best
Available Control Technology (BACT) and the statute allows the consideration of cost in
weighing BACT options. Also, in keeping with the goal of progress toward attaining the
national air quality standards, sources in nonattainment areas must always provide or
purchase "offsets"-decreases in emissions which compensate for the increases from the
new source or modification. In attainment areas, PSD sources typically do not need to
obtain offsets. However, PSD does require an air quality modeling analysis of pollution
that exceeds allowable levels; this impact must be mitigated. Sometimes, these
mitigation measures can include offsets in PSD areas.
1. Under the Clean Air Act, section 173(a)(5) provides that a nonattainment NSR permit
may be issued only if: "an analysis of alternative sites, sizes, production processes, and
environmental control techniques for such proposed source demonstrates that benefits of
the proposed source significantly outweigh the environmental and social costs imposed as
a result of its location, construction, or modification." For example, this provision
authorizes consideration of siting issues. Section 165(a)(2) provides that a PSD permit
may be issued only after an opportunity for a public hearing at which the public can
appear and provide comment on the proposed source, including "alternatives thereto" and
"other appropriate considerations." This authority could allow EPA to take action to
address the proper role of environmental justice considerations in PSD/NSR permitting.
2. In addition to these statutory provisions, EPA directly issues PSD/NSR permits in certain
situations (e.g., in Indian country and Outer Continental Shelf areas) and, through the
EAB, adjudicates appeals of PSD permits issued by States and local districts with
delegated federal programs. In such permit and appeal decisions, it is possible to
consider environmental justice issues on a case-by-case basis, without waiting to issue a
generally applicable rule or Handbook . EPA already considers environmental justice
issues on a case-by-case basis in issuing PSD permits consistent with its legal authority.
3. The EPA Environmental Appeals Board (EAB) has addressed environmental justice
issues in connection with PSD permit appeals on several occasions. The EAB first
addressed environmental justice issues under the CAA in the original decision in
Genessee Power (September 8, 1993). In that decision the EAB stated that the CAA did
not allow for consideration of environmental justice and siting issues in air permitting
decisions. In response, the Office of General Counsel filed a motion for clarification on
behalf of the Office of Air and Radiation (OAR) and Region V. OGC pointed out, among
other things, that the CAA requirement to consider alternatives to the proposed source,
and the broad statutory definition of "best available control technology" (BACT),
provided ample opportunity for consideration of environmental justice in PSD permitting.
Final November 3, 2004 PageA-11
-------
In an amended opinion and order issued on October 22, 1993, the EAB deleted the
controversial language but did not decide whether it is permissible to address
environmental justice concerns under the PSD program. 4 E.A.D. 832, 1993 WL 484880,
(http://www.epa.gov/eab/disk4/genesee.pdf). However, in subsequent decisions,
Ecoelectrica. 7 E.A.D. 56, 1997 WL 160751 (1997)
(http://www.epa.gov/eab/diskll/ecoelect.pdf). and Puerto Rico Electric Power Authority.
6 E.A.D. 253, 1995 WL 794466 (1995) (http://www.epa.gov/eab/disk9/prepa.pdf). the
EAB stated that notwithstanding the lack of formal rules or guidance on environmental
justice, EPA could address environmental justice issues. In 1999 in Knauf Fiber Glass. 8
E.A.D. PSD Appeal Nos. 98-3 through 98-20, 1999 WL 64235 (Feb. 4, 1999)
(http://www.epa.gov/eab/disk 11 /knauf.pdf). the EAB remanded a PSD permit to the
delegated permitting authority (the Shasta County Air Quality Management District) for
failure to provide an environmental justice analysis in the administrative record in
response to comments raising the issue.
4. In the 1990 CAA Amendments, Congress provided that the PSD provisions of the Act do
not apply to hazardous air pollutants (HAPs), see CAA section 112(b)(6), so the role of
hazardous air pollutant impacts as environmental justice issues in PSD permitting is not
straightforward. Thus, BACT limits are not required to be set for HAPs in PSD permits.
However, the Administrator ruled prior to the 1990 Amendments that in establishing
BACT for criteria pollutants, alternative technologies for criteria pollutants could be
analyzed based on their relative ability to control emissions of pollutants not directly
regulated under PSD. EPA believes that the 1990 Amendments did not change this
limited authority, and EPA believes it could be a basis for addressing environmental
justice concerns. In addition, EPA may have authority to take into account - and to
require States to do so in their PSD permitting - effects of HAPs that are also criteria
pollutants, such as VOCs.
B. Title V
Title V of the CAA requires operating permits for stationary sources of air pollutants and
prescribes public participation procedures for the issuance, significant modification, and
renewal of Title V operating permits. Unlike PSD/NSR permitting, Title V generally
does not impose substantive emission control requirements, but rather requires all
applicable requirements to be included in the Title V operating permit. Other permitting
programs may co-exist under the authority of the CAA, such as those in State
implementation plans (SIPs) approved by EPA.
1. Because Title V does not directly impose substantive emission control requirements, it is
not clear whether or how EPA could take environmental justice issues into account in
Title V permitting - other than to allow public participation to serve as a motivating
factor for applying closer scrutiny to a Title V permit's compliance with applicable CAA
requirements. EPA believes, however, that in this indirect way, Title V can, by providing
Final November 3, 2004 Page A-12
-------
significant public participation opportunities, serve as a vehicle by which citizens can
address environmental justice concerns that arise under other provisions of the CAA.
2. Under the 40 CFR Part 70/71 permitting process, EPA has exercised its CAA authority to
require extensive opportunities for public participation in permitting actions. State
permitting authorities also have the flexibility to provide additional public participation.
3. Other permitting processes under the CAA such as SIP permitting programs can include
appropriate public participation measures, and these can be used to promote consideration
of environmental justice issues. For example, EPA regulations require that "minor NSR
programs" in SIPs provide an opportunity for public comment prior to issuance of a
permit (40 CFR § 51.161(b)(2)). (Note, however, that many state programs do not at
present meet this requirement.)
C. Solid Waste Incinerator Siting Requirements
The CAA provides specific authority to EPA to establish siting requirements for solid
waste incinerators that could include consideration of environmental justice issues. CAA
section 129(a)(3) provides that standards for new solid waste incinerators include "siting
requirements that minimize, on a site specific basis, to the maximum extent practicable,
potential risks to public health or the environment." These would be applicable
requirements for Title V purposes. The new source performance standards (NSPS) for
large municipal waste combustors (40 CFR part 60, subpart Eb) and
hospital/medical/infectious waste incinerators (40 CFR part 60, subpart EC) both currently
contain such requirements. In the large municipal waste combustor NSPS, the specific
requirement in section 129(a)(3) was incorporated and requirements for public notice, a
public meeting and consideration of and response to public comments were added.
However, to reduce the burden on the much smaller entities which typically own and
operate hospital/medical/infectious waste incinerators, that NSPS only incorporates the
specific section 129(a)(3) requirement. EPA is subject to a court ordered deadline for
taking final action on NSPS for commercial/industrial waste incinerators, and has
proposed to follow the approach to the siting analysis adopted in the
hospital/medical/infectious waste NSPS in that rule.
40 CFR Part 71 Tribal Air Rule
The Part 71 federal operating permit rule establishes EPA's Title V operating permits
program in Indian country. Where sources are operating within Indian country, and
Tribes do not seek authorization to implement Title V programs, the Part 71 rule clarifies
that EPA will continue to implement federal operating permit programs. These Title V
permit programs are limited to Title V and other applicable federal CAA requirements
and are not comprehensive air pollution control programs. Thus, the opportunities for
addressing environmental justice issues may be similar to those discussed in section B
above.
Final November 3, 2004 PageA-13
-------
cc: Michael McCabe
Barry Hill
Lisa Friedman
Susan Lepow
Alan Eckert
James Nelson
Final November 3, 2004 Page A-14
-------
Appendix B
Statutory Provisions to Address Environmental Justice
This list of statutory provisions reflect possible actions that the Agency may take, some of
which might require issuing guidance from EPA Headquarters or rulemaking before they can be
used. Before these statutory authorities are used, there needs to be discussion regarding whether
they should be used in any given circumstance. Questions that need to be addressed include, but
are not limited to, the following:
whether the statutory authorities will be effective;
whether the use of the statutory authorities will conflict with other
Agency activities;
what are the economic impacts;
what are the impacts on state and local government entities; or
whether there are more efficient and effective statutory
authorities that may be available.
The Agency has available to it and is using many tools in addition to the ones listed in
Appendix B. The statutes listed are not the only approaches available for Agency employees to
use to address environmental justice concerns. The Agency will determine which actions it will
take once all the options are considered. The Regional or Headquarters office should contact the
Office of General Counsel and the appropriate program office before considering the use of any
statutory provisions.
Final-November 3, 2004 Page B-l
-------
Comprehensive Environmental Response, Compensation, and Liability Act
("CERCLA")
42 U.S.C. §§9601-9675
Activity
General Provisions
Response Actions
Abatement Actions
Federal Facilities
Statutory Provision
§§104(a)(l), 101(24),
101(23)
§§106(a), (c)
§120(h)
Regulatory Provision
40C.F.R. §300subpartE
40C.F.R. §300subpartE
OSWER, Interim Policy
on the Use of Permanent
Relocations as Part of
Superfund Remedial
Actions
(June 30, 1999)
40 C.F.R. §300 subpartE
40 C.F.R Part 373
Implementation Action
Consider environmental
justice concerns, such as
cumulative risk,
vulnerability of sensitive
populations.
Consider environmental
justice issues in
relocation actions.
Consider environmental
justice issues, such as
sensitive or vulnerable
populations,
infrastructure, and
unique exposure
pathways when making
"imminent and
substantial
endangerment"
determinations.
Ensure that the
potentially impacted
communities have
substantial involvement
in proposals to transfer
contaminated Federal
properties.
Final-November 3, 2004
PageB-2
-------
Activity
Statutory Provision
Regulatory Provision
Implementation Action
Administrative Record
and Public Participation
§§H3(k)
40 C.F.R. §300.800
sub part E
Ensure that members of
the public have
convenient access to the
administrative record and
translated documents, as
appropriate, and a
meaningful opportunity to
participate in the
development of the
reco rd.
Standard Setting/Rule-
Making
Designating Hazardous
Substance and
Reportable Quantities
§§102 (a), 103 (a)
40 C.F.R. §302
National Contingency
Plan
§105 (a)
Assessment and Listing
Facilities
§§116(a), (b), 105(a)
40 C.F.R. §§300.317,
Part 300 app. A
40 C.F.R. §300.425
Consider environmental
justice issues when
designating hazardous
substances and their
reportable quantities,
such as cumulative
exposure scenarios,
sensitive populations, and
consumption patterns.
Consider environmental
justice issues when
establishing priorities or
listing facilities.
Prioritize consideration
of facilities located in
minority and/or low-
income communities for
listing. Consider
environmental justice
issues such as cumulative
impacts and sensitive
populations.
Final-November 3, 2004
PageB-3
-------
Activity
Statutory Provision
Regulatory Provision
Implementation Action
Standard Setting/Rule-
Making continued
Assessment and Listing
Facilities continued
§105(d)
40 C.F.R. §300.420(b)(5)
§104 ft) (11)
40 C.F.R. §300.430
Remedy Selection
§118
§121 (b)
40 C.F.R. §§
300.430(e)(3)(9) & (f);
OSWER Directive No.
9355.7-04 at 2, 5, and 6
(May 25, 1995).
40 C.F.R. §300.430
§121 (c)
§121(d)
40 C.F.R. §§ 300.400(g)
and 300.415 (j),
300.430(2)(e)(i)(A)(2)
Publicize in minority or
low-income communities
the right to petition for a
preliminary assessment of
public health hazards.
Consider environmental
justice when responding
to an assessment showing
significant risks to the
public, including
relocation. More fully
utilize ASTDR in
examining health issues.
Provide priority attention
to communities facing
environmental justice
issues that have closed or
contaminated drinking
water wells.
Consider environmental
justice issues when
developing and
implementing remedy
selection, under the nine
selection criteria.
Review on-site remedies
for environmental justice
issues.
Ensure that ARARs are
"at least"protective of
affected community.
including sensitive and
vuln erab le papula tions.
Final-November 3, 2004
Page B-4
-------
Activity
Statutory Provision
Regulatory Provision
Implementation Action
State and Tribal Roles in
Program Implementation
§104(c)(3)
40 C.F.R. §35.6105(b)(5)
§104(d), §126
40 C.F.R. Part 35,
Sub part O
Ensure that institutional
controls are adequately
addressed through
cooperative agreements
between EPA and the
State or Tribe.
Ensure through
cooperative agreements
that States and Tribes
have sufficient capacity to
address appropriate
environmental justice
issues.
Enforcement
Fines and Penalties
§§ 109(a)-(c),103(b),
122(1), (104)(e)(5)(B)
40 C.F.R. §§22.39,
302.8(m), 300.400)(iv)(D)
Public Participation for
Cleanup Agreements,
Consent Decrees, and
Cost Recover De Minimis
Settlements
§122(d)(2), 122(f),
40 C.F.R. §§
300.400 (c) (4),
300.430(c),304.20
subsection B, Exec. Order
13125
Ensure that penalties are
assessed consistently
across populations.
Consider environmental
justice concerns in
determining gravity.
Consider use of SEPs.
Include SEPs explicitly as
part of stipulated
penalties in consent
orders.
Solicit public comment
from the affected
community, and provide
translation, as
appropriate.
Final-November 3, 2004
PageB-5
-------
Activity
Information Gathering
(Research, Monitoring,
and Reporting)
Monitoring
Reporting and Record-
Keeping
Federal Facility
Reporting Requirements
EPA Reporting
Requirements
Statutory Provision
§104(b)
§104(e)
§103(d)
§§120(b), (c), (e)(3),
(e)(5)
§§121(c), 301(h), 311(e)
Regulatory Provision
40 C.F.R. §§ 300.410,
300.420 and 430
40 C.F.R. §§300.400
(esp. (c)(8) and (d)(2)-
(4)), 300.430(c),
300.430(e)(9)(I),
300.430(J)(6) (ii)
40 C.F.R. §§300.400
(esp. (c)(8) and (d)(2)-
(4)), 300.430(c),
300.430(f)(6) (n)
As above, other statutory
sections not
implemented through
EPA regulations.
Implementation Action
Consider environmental
justice issues in
establishing
"investigations,
monitoring, surveys,
testing, and other
information gathering. "
Ensure that information
requests address issues of
concern to the community
and include
environmental justice
issues.
Examine record- keeping
system to ensure that
information regarding
communities with
environmental justice
issues is accessible to
public health and
environmental agencies.
Publicize availability of
reports to affected
communities, provide
technical assistance and
translation.
As above
Final-November 3, 2004
Page B-6
-------
Activity
Information Gathering
(Research, Monitoring,
and Reporting) continued
Research, Development
and Demonstration
Agency for Toxic
Substance and Disease
Registry Programs
Statutory Provision
§311(b)
§311(c)
§3 11 (a)
§§104(i)(2) - (6)
Regulatory Provision
40 C.F.R.
§300.175(b)(8)(i),
300.400(f), and
300.400(c)(ii)
Implementation Action
Ensure that
demonstration projects
take into consideration
environmental justice
issues.
Conduct and support
research oriented
towards environmental
justice issues.
Support basic research
and training that supports
environmental justice
goals. Encourage
community -based
research.
Address environmental
justice issues through
research, establishment
of priorities, training, and
performing health
assessments at sites in
communities with
environmental justice
concerns.
Final-November 3, 2004
PageB-7
-------
Activity
Statutory Provision
Regulatory Provision
Implementation Action
Financial Assistance
Cooperative Agreements
with States and Tribes
Reimbursement to Local
Government for
Temporary Emergency
Measures
Research Grants
§104(d)
§123
40 CFR Part 310
§311(d)
40 C.F.R. §311(d)
Provide adequate
assistance to Tribes,
including Alaska Native
Villages.
Publicize the availability
of funding in communities
with environmental
justice concerns.
Ensure that research
grants address issues of
environmental justice and
that the results are
adequately disseminated.
Public Participation in
Remedial Action Plans
§§117(a)-(d)
40 C.F.R. §§430(c),
300.415(n), Part 350,
Sub part O
Promote public
involvement of the
affected community, for
example, through active
solicitation for
participation, translation
of documents, and, as
appropriate, providing
assistance informing
community advisory
boards.
Final-November 3, 2004
PageB-8
-------
Clean Air Act
("CAA ")
42 U.S.C.§§ 7401-7671q
Activity
General Provisions
Advisory Committee
Standard Setting/Rule-
Making
Nonattainment
Designation
Siting Requirement
Monitoring Requirement
Statutory Provision
§§117 (a), (b)
§§182(a)-(e)
§129(a)(3)
§129(c)
Regulatory Provision
Implementation Action
Include individuals
knowledgeable about
environmental justice
concerns and health
disparities issues.
Make data submissions
accessible to the affected
population with
environmental justice
concerns.
Ensure that siting
requirements consider
environmental justice
concerns.
Ensure that the affected
community has access to
monitoring data.
Final-November 3, 2004
PageB-9
-------
Activity
Statutory Provision
Regulatory Provision
Implementation Action
Standard Setting/Rule-
Making continued
Urban Area Sources
Program
§112(k)(2)
Motor Vehicle and
Heavy-Duty Truck
Emissions
continued
219(c)(2), 219(c)(2)(C)
40 C.F.R. §§ 68.12(a),
6822, 68.30
Consider the relevance of
existing health disparities
in research, priority
setting, and program
design.
Support state and local
government efforts to
identify and address
urban air "hot spots. "
Consider health
disparities, sensitive
populations, and other
environmental justice
issues when deciding
whether to extend PM
and clean fuel
requirements to cities
with populations under
750,000.
Require risk management
plans to consider issues
of limited English
proficiency, socio-
economic and cultural
characteristics.
Encourage good
neighbor
policies/com munity
advisory groups.
Permitting and Other
Appro vals
Title V Operating Permits
§505(a)-(c)
40 C.F.R. §§70.7(h),
70.6, 70.7
Review and address
permits for environmental
justice issues under, and
general compliance with,
the Clean Air Act, the
State SIP and applicable
State law. Solicit the
affected population in the
public participation
pro cess.
Final-November 3, 2004
Page B-10
-------
Activity
Statutory Provision
Regulatory Provision
Implementation Action
Permitting and Other
Approvals continued
New Source Review
§173(a)(5)
PSD/NSR Permitting
§§172(c)(5),
17 3 (a) (5), 161,
165 (a) (2)
40 C.F.R. Parts 51,
165 (a)(2), App. S to Part
SI
40 C.F.R. §§
51.165(a)(2), 51.166(q),
App. S to Part SI,
52.21(q), 51.100(o)(2)
Consider environmental
justice issues in the
alternatives and
balancing requirements.
Consider environmental
justice issues in PSD/NSR
permitting actions, EPA
oversight of state
permitting, and EAB
Appeal Decision by rule-
making, guidance, or on
a case-by-case basis.
Consider local health
conditions and
alternatives in BACT
determinations.
Final-November 3, 2004
Page B-ll
-------
Activity
Statutory Provision
Regulatory Provision
Implementation Action
Delegation of Programs
to States and Tribes
NAAQS
PSD Requirements
§164(b)
EPA Oversight and
Discretionary Sanctions
§110(a)(2)(E)
§§ 110(c), 502(i), 173,
179
State Implementation
Plans and EPA Review
§§108(e), (f),
110(a)(2)(E), 110(1)
Encourage States to
address environmental
justice in State
Implementation Plans.
Ensure that the full range
of impacts on affected
communities is
considered prior to re-
designation and that a
forum for identifying
community concerns
takes place.
Ensure that all necessary
assurances have been
made and implemented to
comply with other
applicable laws.
Case-by-case sanction
and FIP decision; remedy
for non-implementations;
consider environmental
justice issues when
making enforcement and
remedy decisions.
Ensure that the State
Implementation Plan
conforms to public
participation and other
legal requirements.
Encourage States to
solicit participation from
communities with
environmental justice
concerns.
Final-November 3, 2004
Page B-12
-------
Activity
Statutory Provision
Regulatory Provision
Implementation Action
Enforcement
40 C.F.R. Part 22
§303
Consider environmental
justice issues when
exercising enforcement
discretion.
Solicit the affected
community's comment
during 30 day settlement
agreement period.
Consider environmental
justice issues, such as
cumulative or multiple
impacts and sensitive
populations, when
making "imminent and
substantial
endangerment"
determination.
Consider environmental
justice issues, such as
cumulative or multiple
impacts and sensitive
populations, when
enforcing general duty
clause. Target
enforcement actions in
areas with environmental
justice issues.
Financial Assistance
§§103(a)(l)&(2)&
40 C.F.R. Parts 30, 31, &
40.
Provide technical
services and provide
financial assistance to
public or nonprofit
private entities to conduct
research, investigations,
experiments, etc.
regarding the causes,
effects, extent, prevention,
and control of air
pollution as they relate to
environmental justice
issues.
Final-November 3, 2004
Page B-13
-------
Activity
EIP
Waiver for Innovative
Technological Systems
Statutory Provision
§§110(a)(2)(E), 110(1)
§1110)
Regulatory Provision
40 C.F.R. §61.12
Implementation Action
Ensure compliance
alternatives do not result
in loss in protection;
ensure credits are real,
quantifiable, permanent,
and enforceable.
Consider cumulative
impacts on public health.
Final-November 3, 2004
Page B-14
-------
Activity
Information Gathering
Monitoring
Research and
Development
Statutory Provision
§ 114(d), (c)
§§ 112(r)(7),114(a)(3)
§§110(a)(2)(B),
110(a)(2)(F),
11 0(1) (2) (K)
§§ 103(a)(l), (a) (3), (b),
(d)
§112(l)(3)
Regulatory Provision
40 CFR Part 1400
40 CFR Part 35
Implementation Action
Ensure generation and
dissemination of
information relevant to
concerns of surrounding
community.
Establish monitoring
requirements that address
environmental justice
issues, including
monitoring, recording
keeping, reporting,
training, etc...
On a case-by-case basis
modify SIP monitoring
requirements to include
environmental justice
issues, as appropriate.
Address environmental
justice issues through
research, investigations,
and /or surveys with
others, as appropriate,
and disseminate findings.
Provide technical
information to State and
local agencies, and
others regarding air
toxics as they relate to
environmental justice
issues.
Final-November 3, 2004
Page B-15
-------
Federal Water Pollution Control Act
("Clean Water Act" or "CWA")
33U.S.C. §§1251-1387
Activity
Statutory Provision
Regulatory Provision
Implementation
Action
Permitting and Other
Appro veils
National Pollutant
Discharge Elimination
System (NPDES Permits)
§§402(a)(l)(B),
(a)(2), and 302(a)
40 C.F.R. Part 122,
§402(d)
40 C.F.R. S 123.44
§402(a)
§402(a)
40 C.F.R. §122.62(a)(2)
Where EPA is the permitting
authority, include additional
water-quality conditions
where consistent with these
statutory provisions that
protect public health, public
water supplies, and fisheries,
taking into consideration
specific water quality impacts
raising environmental justice
issues. Consider whether to
include additional reporting
requirements to address
environmental justice issues
where appropriate.
Review and comment on, and
object to, as necessary,
NPDES permits issued by a
state or tribe that are
"outside the guidelines and
requirements of" the Act.
Where EPA is the permitting
authority, consider
environmental justice issues
when issuing the permit in
accordance with the Act.
Where EPA is the permitting
authority, consider
cumulative impacts to
impaired waters when new
permits are proposed.
Where EPA is the permitting
authority, consider whether
new information, involving
environmental justice issues,
constitutes cause to modify
existing NPDES permits.
Final-November 3, 2004
Page B-16
-------
Activity
Statutory Provision
Regulatory Provision
Implementation
Action
Permitting and Other
Appro vals
CAFOs
'402
40 C.F.R. §122.23
Section 404 Dredge-and-
Fill Permitting
§§ 404(a), 404(b)(l)
33 C.F.R. § 320.4(a)(l),
40 C.F.R. §§230.10(a)-
(d),
40 C.F.R. § 230.ll(g)
§ 404(c), 404(1)
40 C.F.R. Part 231, Part
230.10(a)-(d)
Consider environmental
justice issues related to water
quality impacts when
determining whether an
animalfeeding operation is a
"significant contributor of
pollution to the waters of the
United States" and,
therefore, should be
designated as a CAFO and
increase inspections at state
and Federal level.
Comment on and encourage
Army Corps of Engineers to
consider cultural, social
subsistence, "way of life, "
historic values and
cumulative impacts when
conducting public interest
review and applying the
404(b)(l) Guidelines.
Consider environmental
justice issues relating to
aquatic ecosystem
degradation when
determining whether to
exercise veto authority or
object to state issued permit.
Enforcement
§§309(a)-(g)
40 C.F.R. Part 22
Consider issues of
environmental justice in
enforcement actions as an
element in determining the
amount of civil or
administrative penalty,
and/or in fashioning
injunctive relief. The statute
provides for consideration of
a number of penalty factors
including "such other
matters as justice may
require. " Encourage use of
SEPs.
Final-November 3, 2004
Page B-17
-------
Activity
Statutory Provision
Regulatory Provision
Implementation
Action
Enforcement
§504
§309
Consider issues of
environmental justice related
to water quality impacts
when determining whether to
bring suit on behalf of the
United States to restrain any
person causing or
contributing to a pollution
source that is presenting an
"imminent and substantial
endangerment to the health
of persons or to the welfare
of persons where such
endangerment is to the
livelihood of such persons. "
Pursue enforcement actions
where appropriate in
communities with
environmental justice
concerns related to water
quality impacts.
Final-November 3, 2004
Page B-18
-------
Activity
Information Gathering
Research
Reporting
Statutory Provision
§ 104 (a) and (b)
§§104(p)
§308
Regulatory Provision
Implementation
Action
Undertake research, training,
surveys, studies, etc... to
better address issues of
environmental justice
relating to water quality.
Provide technical
information to pollution
control agencies and other
appropriate public or private
agencies, institutions,
organizations, and
individuals, including the
general public, to address
environmental justice issues.
Develop and disseminate to
the public and farmworkers,
the latest scientific
information available
indicating the kind and extent
of effects on public health
and welfare from the
presence of pesticides in
water
Make available records,
reports, or information
regarding effluent discharges
obtained under 308(a) to
affected members of the
public in an accessible
manner.
Final-November 3, 2004
Page B-19
-------
Em ergency Planning Comm unity Right to Know Act
("EPCRA")
42 U.S.C.§ §11001-11050
Activity
Statutory Provision
Regulatory
Provision
Implementation Action
Standard Setting/Rule-
making
Petitions for Deletions
and Additions to List of
Toxic Chemicals Subject
to Toxic Chemical
Release Form Reporting
Requirements
Petitions for Deletions
and Additions to
Extremely Hazardous
Substance (EHS) List
§313(d) ,
302(a)(4)
Part 355,
appendices A & B
Take into account sensitive or
vulnerable populations when
determining whether a chemical
is known to cause or can
reasonably be anticipated to
cause significant adverse acute
human effects.
Factors to consider include
toxicity, which includes any
short-term or long-term health
effect which may result from
short-term exposure. Although
unlikely to be based on human
health (animal species usually
more sensitive), listing or
delisting determination could
take into account affects on
susceptible populations
Delegation of Programs
to States and Tribes and
Federal Adherence
Generally
§301 (a)
Encourage State Emergency
Response Commissions (SERCs)
and Local Emergency Planning
Committees (LEPCs) to address
environmental justice issues (e.g.,
composition of SERCs and
LEPCs, addressing vulnerable or
sensitive populations and
infrastructure concerns).
Federal Compliance
(Executive Order 13148)
Ensure Federal compliance with
EPCRA and the Pollution
Prevention Act of 1990. Federal
agencies should consider
environmental justice issues in
determining, for example,
whether to apply exemptions
Final-November 3, 2004
Page B-20
-------
Activity
Statutory Provision
Regulatory
Provision
Implementation Action
Enforcement
General
§326
40 C.F.R. Part 22
Penalties
§§325(a) - (c), 326
40 C.F.R. 370.25
Special Enforcement
Provisions for Health
Profession als
§§325(e), 323
40 C.F.R. Part 21
Consider environmental justice
issues in establishment of
enforcement priorities and
penalty determination.
Provide information obtained to
SERCs, LEPCs, and Tribal
Emergency Response
Commissions, as appropriate.
Consider environmental justice
issues when targeting facilities,
sectors, exercisingprosecutorial
discretion, and when determining
penalty amount (e.g., when
considering the nature,
circumstances, extent, and
gravity of the violation).
Consider use of Supplemental
Environmental Projects.
Evaluate compliance assistance
opportunities to help ensure that
health professionals have ready
access to the information
provided under §323.
Final-November 3, 2004
Page B-21
-------
Activity
Statutory Provision
Regulatory
Provision
Implementation Action
Information Gathering
Emergency Planning
Notification
Requirements
§§ 302(c) and (d)
§40 C.F.R.
355.30
Emergency Notification
Release Reporting
Requirements
Translation (Executive
Order 13166)
§304(a)-(c)
§40 CFR355.40
§304(c)
Make information collected and
transmitted to EPA available, in
a useful and accessible form, to
communities with environmental
justice issues (e.g., CIS maps,
with demographic and other
environmental justice indicators).
Ensure that information is
transmitted in a timely and
complete manner to EPA by State
entities.
Provide targeted compliance
assistance to help ensure that
information required to be
transmitted is done so in a timely,
accurate and complete manner.
Encourage states or local
authorities to promote
environmental justice goals (e.g.,
making emergency notices
available to affected populations
in appropriate languages and in
plain language, etc...).
Final-November 3, 2004
Page B-22
-------
Activity
Statutory Provision
Regulatory
Provision
Implementation Action
Information Gathering
cont'd
Material Safety Data
Sheets
§§ 311 (a), (c) and (d)
40 C.F.R.
§370, Subpart B
Emergency and
Hazardous Chemical
Inventory Forms
Toxic Chemical Release
Forms
§§311(a)-(d)
40 C.F.R. §370,
Subpart C
$313
40 C.F.R.
§370.25
3130)
Provide targeted compliance
assistance to facilities located in
communities with environmental
justice issues to ensure timely and
complete transmittal of
information required under
§311 (a) and (d).
Encourage and assist in actions
that facilitate dissemination of
information in an accessible form
to communities with
environmental justice issues.
Provide targeted compliance
assistance to facilities located in
communities with environmental
justice issues to ensure timely and
complete transmittal of
information required.
Develop tools to disseminate
information and trends in an
accessible manner.
Final-November 3, 2004
Page B-23
-------
Activity
Statutory Provision
Regulatory
Provision
Implementation Action
Information Gathering
cont'd
Public Information
Regarding Material
Safety Data Sheets
§311(c)(2)
Provision of Emergency
and Hazardous Chemical
Inventory Forms Tier II
Information
§312(e)(3)(A), (B)
40C.F.R. 370.30
Availability of Material
Safety Data Sheets,
Forms, andFollow-Up
Notices
Petitions for Disclosure
of Specific Chemical
Identity
§324(a), (b)
40C.F.R. 370.31
§§322(c) - (e), 322(h)(l)
Provide assistance to help states
and tribes ensure that accurate
information is accessible to
communities with environmental
justice concerns, and that the
public is aware of the availability
and use of such information.
Provide targeted compliance
assistance to SERCs andLEPCs,
encourage dissemination of
information to communities with
environmental justice issues.
Publicize availability and use of
such information in areas with
environmental justice issues.
Publicize the availability and use
of information in communities
with environmental justice issues.
Encourage State or local entities
to publicize the availability of
information to the public.
Provide guidance to states
regarding the petition process for
obtaining chemical identity for
chemicals otherwise protected as
trade secret.
Financial Assistance
§305(a)(l)
Provide training to small and/or
low tax-base municipalities, with
environmental justice issues, in
hazard mitigation, emergency
preparedness, fire prevention and
control, disaster response, long-
term disaster recovery, national
security, technological and
natural hazards and emergency
process.
Final-November 3, 2004
Page B-24
-------
Federal Insecticide Fungicide and Rodenticide Act ("FIFRA ")
7 U.S.C. 136-136y; Federal Food, Drug, and Cosmetic Act ("FFDCA ");
21 U.S.C. 301-397; as Amended by Food Quality Protection Act of 1996 ("FQPA")
Activity
General Provisions
Public Participation
Worker Protection
Statutory Provision
7 USC §136s(c)
FIFRA §2(bb)
7 U.S.C. 136w.
Regulatory Provision
40C.F.R. §§154.7(a)(6),
166.3(j)
40 C.F.R. Part 170
(Worker Protection
Standard)
Implementation Action
The Administrator may
solicit participation in
decisionm aking process
(e.g., taking action with
respect to a pesticide
registration) from the
affected population with
environmental justice
concerns, or "other
qualified persons. "
Consider issues relating
to environmental justice
concerns (e.g.,
subsistence, unique
exp osu re pa thways, etc. .)
when undertaking the
"unreasonable adverse
effects" determination.
On a chemical-by-
chem ical basis address
environmental justice
issues more fully (e.g.,
pesticide safety training,
consideration of
language barriers).
Final-November 3, 2004
Page B-25
-------
Activity
Education and Outreach
Statutory Provision
7U.S.C. §§ 136i-l, 136r,
136u, 136w
Regulatory Provision
Implementation Action
Address environmental
justice issues through
improved training of
medical professionals to
recognize and diagnose
injuries related to
pesticide exposure,
establishment of a
national pesticide injury
reporting system (e.g.,
"Pesticides and National
Strategies for Health
Care Providers " - an
effort to get pesticide
information into the
training of health care
providers).
Conduct education and
outreach to farmworkers
and others regarding
special needs of children
in and around fields
where pesticides are
applied. Conduct
education and outreach
to communities living
near fields where
pesticides are applied.
Final-November 3, 2004
Page B-26
-------
Activity
Statutory Provision
Regulatory Provision
Implementation Action
Licensing And Other
Appro veils
Pesticide Registration
Generally
§3(c)
40 C.F.R. §§152.15,
172
Unlawful acts
Labeling
§12 (a)
40 C.F.R. §156.10(a)(3)
Classification of Pesticide
§3(c) and (d)
40 C.F.R. Part 152
subpart I
When determining
whether a pesticide poses
an unreasonable risk to
communities, consider
environmental justice
issues (e.g., vulnerable or
sensitive populations,
lack of medical care,
proximity to pesticide
exposed areas).
Expedite decisions where
worker and community
exposure is a concern.
Require labeling in
languages most
appropriate for end user
and "as is considered
necessary to protect the
public. "
Consider restricting
pesticides that raise
environmental justice
issues. Issue locale
specific restrictions on
pesticide uses that have
unreasonable adverse
effects for communities
that bear a
disproportionate risk
from pesticide use (i.e.,
areas with subsistence
populations).
Final-November 3, 2004
Page B-27
-------
Activity
Licensing And Other
Approvals continued
Data Collection
Minor Us Registration
Setting Tolerances and
Granting Exemptions
Statutory Provision
§3(c)(2)(b)
§3(c)(3)(C)
FFDCA § 408(b)(2)(C) &
(D)
Regulatory Provision
40 C.F.R. §158.75
Implementation Action
Consider whether, based
on scientific reasons, to
initiate "data call-in"
when environmental
justice issues are raised
regarding a pesticide or
its use and insufficient
information necessary to
address concerns is
available. Consider data
needs associated with
spray drift.
Consider environmental
justice issues when
allowing use of minor use
pesticides, anti-
microbials, andpublic
health pesticides.
When establishing
tolerances and exempts,
consider aggregate
exp osure and dose to
sensitive, susceptible,
vulnerable, or subsistence
populations, children,
infants and "sensitivities
of major identifiable
subgroups of
consumers. " Also
consider interactions with
"other substances, " and
"other relevant factors"
to address environmental
justice issues.
Final-November 3, 2004
Page B-28
-------
Activity
Data Needs
Licensing And Other
Approvals continued
Pesticide Registration
Public Participation
Cancellation or
Suspension of Pesticide
Registration
Statutory Provision
FFDCA§408(b),(f),
FIFRA § 3
§3(c)(4)
§§6(a)-(d), 19(b)
Regulatory Provision
40 CFR §158
Implementation Action
Require submission of
data addressing
environmental justice
issues, "reasonably
required, " to support the
continuation of a
tolerance or exemption in
effect or when assessing
chronic dietary risks in
connection with the
establishment of a
tolerance.
Solicit participation and
assure availability of data
concerning
environmental
justice issues for new
chemicals or uses.
Cancel or modify use
conditions based on
unreasonable adverse
effects to a community
with environmental
justice concerns, or if
pesticide presents an
imminent hazard to a
community with
environmental justice
concerns. Note that
unreasonable adverse
effects is a balancing of
costs and benefits.
Final-November 3, 2004
Page B-29
-------
Activity
Statutory Provision
Regulatory Provision
Implementation Action
Setting Tolerances and
Granting Exemptions
FFDCA section 408
40 C.F.R. Part 180, 40
C.F.R. § 152.112(g), As
described in U.S. EPA
Office of Pesticide
Programs, Agency
Actions Under the
Requirements of the Food
Quality Protection At PR
Notice 97-1 (Jan. 31,
1997)
Data Needs
§408(b), (f)
When establishing
tolerances and
exemptions consider
aggregate exposure and
cost to sensitive,
susceptible, vulnerable,
or subsistence
populations, children,
infants, and "sensitivities
of major identifiable
subgroups of
consumers. "
Consider the need for
additional submission of
data addressing
environmental justice
issues, "reasonably
required, " to support the
continuation of a
tolerance or exemption in
effect, when assessing
chronic dietary risks in
connection with the
establishment of a
tolerance and based on a
risk health.
Final-November 3, 2004
Page B-30
-------
Activity
Statutory Provision
Regulatory Provision
Implementation Action
Delegation of Authority
to States and Tribes to
Cooperate in
Enforcement
State Regulatory
Authority
§24 (c)
40 C.F.R. Part 162
Tribe and State
Cooperative Enforcement
Authority
State Enforcement
Authority for Pesticide
use Violations
§23(a)(l)
§26(a), (b)
None
40 C.F.R. §173
State/Tribe Certification
of Pesticide Applicators
§§11 (a), 23 (a) (2)
States 40 C.F.R. Pan 171
Tribes and States §§
171.1-171.6 (general
standards); 171.7-8
(States), 171.10 (tribes)
Consider environmental
justice issues when
reviewing State registered
pesticides or state's
registration authority.
Enter into cooperative
agreements to assist in
enforcement efforts.
Track state responses to
enforcement petitions and
enforcement actions.
Take protective actions to
the extent that State does
not, or cannot,
adequately respond.
Include such information,
reporting, and other
provisions as are
required to assure that all
sub-populations are
protected, and consider
environmental justice
issues when evaluating
adequacy of State/Tribe
implementation.
Emergency Exemptions
§18
40 C.F.R. Part 166
Consider emergency
exemptions to address
exigent circumstances
facing communities with
environmental justice
issues. Consider also the
effects of granting
emergency exemptions on
communities with
environmental justice
issues in determination
process.
Final-November 3, 2004
Page B-31
-------
Activity
Enforcement
Inspection
Stop Sale Order
Civil Penalties
Tailor Remedy
Statutory Provision
§§9 (a), 8, 7
§13(a)
§12
§16(c)
Regulatory Provision
Implementation Action
Train inspectors to be
aware of environmental
justice issues when
conducting inspections.
(Consider targeting
inspections to areas
where environmental
justice issues may be of
concern)
Conduct more
inspections, and enhance
wh istleblower pro tection .
Consider environmental
justice in the
determination of whether
a pesticide or devise is or
is intended to be used or
sold in violation of the
Act.
Consider targeting
enforcement actions
where issues of
environmental justice
may be of concern.
Consider environmental
justice issues in penalty
and gravity assessment.
Consider Supplemental
Environmental Projects.
Consider environmental
justice issues when
fashioning injunctive
relief.
Final-November 3, 2004
Page B-32
-------
Activity
Information Gathering
Research
Monitoring and Data
Collection
Information Gathering
continued
Monitoring and Data
Collection continued
Statutory Provision
§§20(a) and
23(c)
7U.S.C. §136r
§25(d)(l)
Regulatory Provision
None
Implementation Action
Conduct research to
identify and address
potential "unreasonable
adverse effects" on
communities with
environmental justice
issues from pesticides.
Research alternatives for
reduced, safer use, or
application of pesticides
(i.e. integrated pest
management, training,
worker /consumer
education). Disseminate
information with State to
individuals and
communities facing
environmental justice
issues.
In consultation with the
Department of
Agriculture, ensure that
restricted pesticide data
collected addresses
information relevant to
environmental justice,
and is maintained in a
manner that allows
environmental justice
issues to be tracked and
identified.
Appoint members of the
scientific advisory panel
who are well versed in
environmental justice
issues. Use panel to peer
review methodological
modifications to address
issues of environmental
justice.
Final-November 3, 2004
Page B-33
-------
Activity
Statutory Provision
Regulatory Provision
Implementation Action
Information Gathering
continued
Estrogenic Substances
Screening Program
FFDCA §408 (p)
None
In carrying out the
estrogenic substances
screening program,
consider testing of other
substances that may have
an effect that is
cumulative to an effect of
a pesticide chemical if the
Administrator determines
that a substantial
population may be
exposed to such
substance.
Consider requiring
information collection
concerning substances
that may have an
estrogenic or other
endocrine effect on
communities with
environmental justice
issues.
Final-November 3, 2004
Page B-34
-------
Activity
Statutory Provision
Regulatory Provision
Implementation Action
Information Gathering
continued
Monitoring and Data
Collection continued
FFD CA § 4 08 (b) (2) (c)
Reporting
§6 (a) (2)
40 C.F.R. §152.125, and
Part 159
Certification of Restricted
Use Pesticide Applicators
None
§(8)(a)
40 C.F.R. §169.2(i)
FFDCA § 408 (o)
In consultation with the
Department of
Agriculture and the
Department of Health
and Hum an Services,
ensure that the
"increased sampling of
foods most likely
consumed by infants and
children," consumed by
sensitive, vulnerable, and
subsistence populations.
Require reporting of
information by
registrants, germane to
environmental justice
concerns.
Require collection and
reporting of information,
in State or Tribal Plans
germane to
environmental justice
concerns.
Analyze pesticide
disposal records of
registrants with respect to
environmental justice
issues.
Provide to large retail
gro cers for public
displays targeted
information about
pesticide residues and
recommendations for
dietary reductions.
Final-November 3, 2004
Page B-35
-------
Activity
Statutory Provision
Regulatory Provision
Implementation Action
Financial Assistance
§23(a)(2)
40 C.F.R. § 35.240
§§ 20(a), 136r-l
Assist States and Tribes
to train and certify
pesticide applicators to
be aware of
environmental justice
situations and issues.
Make grants available to
conduct such research,
development, monitoring,
public education,
training, demonstrations,
and studies, "as may be
necessary to carry out the
purposes of [FIFRA], "as
they relate to
environmental justice
issues.
Final-November 3, 2004
Page B-36
-------
National Environmental Policy Act
("NEPA ")
40U.S.C. §§4321-4370d
Activity
Statutory Provision
Regulatory Provision
Implementation Activity
General Provisions
Administering Other
Laws in Accordance with
NEPA
§§102(1), 105, 102(2) (H)
40C.F.R. §1500.2(a),
1500.6
§102(2)(A), (B), (E)
40C.F.R. §1501.2(a)-(c)
§102(2)(G)
40C.F.R. §1500.l(b),
1500.2(f)
Implement other statutes
"to the fullest extent
possible... in accordance
with the policies set forth
in [NEPA], " bearing in
mind that NEPA 's goals
are "supplementary to
those set forth in existing
authorizations of Federal
agencies." Consider
using this authority to
address environmental
justice issues in
conjunction with other
statutory authority.
Utilize a systematic,
"interdisciplinary
approach which will
insure the integrated use
of the natural and social
science ... in planning
and decisionmaking
which may have an
impact on m an 's
environment, " whether or
not such actions require
development of NEPA
compliance documents.
Provide government at all
levels, institutions, and
individuals, advice and
information useful in
restoring, maintaining,
and enhancing the quality
of the environment, "
including issues relating
to environmental justice.
Final-November 3, 2004
Page B-37
-------
Activity
Statutory Provision
Regulatory Provision
Implementation Activity
Implementation ofNEPA
General
§102(2)(C)
Council on
Environmental Quality,
Environmental Justice:
Guidance under the
National Environmental
Policy Act
EPA, Office of Federal
Activities, Notice of
Policies and Procedures
for Voluntary
Preparation of National
Environmental Policy Act
(NEPA) Documents
(1998)
Consider environmental
justice issues identified in
CEQ Guidance. Review
for consistency.
Conduct NEPA reviews
voluntarily, when
functional equivalence
doctrine or exemption
applies, in instances
when environmental
justice issues are
implicated.
Final-November 3, 2004
Page B-38
-------
Activity
Implementation ofNEPA
continued
General
Public Participation
Cooperating Agency
Statutory Provision
§ 102(2) (C)
Regulatory Provision
40 C.F.R. §§6.400,
1503.1, 1506.6(a),
1506. 10(c), 1500. 2(d)
40 CFR§§1501.6,
1508.5, CEQ
Memorandum for Heads
of Federal Agencies:
Cooperating Agencies in
Implementing the
Procedural Requirements
of the National
Environmental Policy
Act, 30 January 2002,
CEQ Memorandum,
Environmental Quality:
Designation of Non-
Federal Agencies to be
Cooperating Agencies in
Implementing the
Procedural Requirements
of the National
Environmental Policy Act
Documents (1998)
Implementation Activity
Solicit involvement of
affected public with
environmental justice
concerns in the
dec isionm akin g pro cess.
Consider cultural, social,
economic, technical, and
language barriers to
participation.
Solicit Tribal
participation, including
Alaska Native Villages, in
NEPA process as
cooperating agencies.
Promote dissemination of
information and solicit
early involvement.
Final-November 3, 2004
Page B-39
-------
Activity
Implementation ofNEPA
continued
Triggering EIS/EA
Development
Statutory Provision
42 U.S.C. §4332(2)(C)
Regulatory Provision
40 C.F.R.
§§1507.3(b)(2)(ii),
1508.4
40 C.F.R. §§1508.8,
1508.14, 1508.27
40 C.F.R. Part 6, 40
C.F.R. §§6.400(d),
1501. 3(b), 1501. 4(b),
1501. 4(c), 1501. 4(e),
1508. 9(a), Final
Guidance For
Incorporating
Environmental Justice
Concerns in EPA's NEPA
Compliance Analyses
(April 1998), 3.1-3 and
4.2
Implementation Activity
Whenever appropriate,
avoid use of categorical
exclusions for activities
that may result in
environmental justice
issues.
Consider environmental
justice issues in
"significance"
determination.
Consider environmental
justice issues in
development of
Environmental
Assessment (EA) and
determination whether a
Finding of No Significant
Impact (FONSI) is
warranted. Follow EPA
EJNEPA Guidance.
Issue FONSI and EA in
draft and in an accessible
format. Solicit comment
from individuals and
entities with
environmental justice
concerns. Mitigate
unavoidable impacts that
result in environmental
justice issues.
Final-November 3, 2004
Page B-40
-------
Activity
Statutory Provision
Regulatory Provision
Implementation Activity
Preparing Environmental
Impact Statements
Scoping
40 C.F.R. §§1501.7,
1508.25, CEQEJ
Guidance at 11-12; EPA
EJ Guidance at 3.2 and
4.1
Development of
Alternatives
40 CFR§§1502.14,
1508.20, CEQEJ
Guidance at 15-16, EPA
EJ Guidance at 3.2.
Affected Environment
40 C.F.R. §1502.15, CEQ
EJ Guidance all4, EPA
EJ Guidance at 3.2.4
Solicit assistance of
communities and Tribal
cooperating agencies in
scoping process to
identify potential
environmental justice
issues and develop
alternatives. Address
issues identified in CEQ
andEPAEJNEPA
Guidance documents.
Ensure that affected
communities with
environmental justice
concerns play a
meaningful role in the
development of
alternatives and
mitigation measures.
Develop appropriate
geographic scale for
NEPA inquiry, taking into
consideration
vulnerabilities of
infrastructure, the
human-built environment,
natural environment and
sensitive or vulnerable
populations. Follow
procedures
identified in CEQ and
EPA EJ Guidance
documents.
Final-November 3, 2004
Page B-41
-------
Activity
Statutory Provision
Regulatory Provision
Implementation Activity
Preparing Environmental
Impact Statements
continued
Environmental
Consequences
Records of Decision
40 C.F.R. §§1502.16,
1508.7, 1508.8, and
1508.14, CEQ
Considering Cumulative
Effects Under the
National Environmental
Policy Act
(January 1997), EPA EJ
Guidance at 2.2.2, 5.3
40 C.F.R. §§ 1503.1(b),
1503.4, 1505. (2), CEQ EJ
Guidance at 15, EPA EJ
Guidance at 1.2, 3.2.8
Address issues identified
in CEQ and EPA EJ
NEPA Guidance
documents. Consider
direct, indirect, and
cumulative impacts.
Solicit participation of
cooperating Tribal
agencies and ensure
meaningful opportunities
to participate by the
affected public.
Explain in the Record of
Decision how
disproportionately high
and adverse effects to
environmental justice
communities were
identified. If any such
impacts were identified,
describe how they were
made a factor in the
Agency's decision.
Follow procedures
identified in CEQ and
EPA EJ Guidance
Documents.
CAA 309 Review of
NEPA Documents
CAA §309(a) and (b)
40 C.F.R. §1504.1-3, US
EPA Office of Federal
Activities, EPA Guidance
for Consideration of
Environmental Justice in
Clean Air Act Section 309
Reviews (July 1999).
Coordinate with lead
agency to assist with
development of
environmental justice
NEPA strategy. Follow
EPA 309 EJ Guidance.
Consider environmental
justice issues in
determinations of whether
to refer NEPA documents
to CEQ.
Final-November 3, 2004
Page B-42
-------
Resource Conservation and Recovery Act
("RCRA")
33 U.S.C.§§6901-6992k
Activity
Statutory Provision
Regulatory Provision
Implementation Action
General Provisions
§1002 (a) (3)
§1002 (a) (4)
§1001(b)(2)
Recognize special
environmental justice
issues faced by urban
Encourage federal
leadership in addressing
solid waste concerns in
communities with
environmental justice
issues by providing
financial and technical
assistance and
leadership.
Consider front-end
siting/planning issues to
address environmental
justice issues.
Permitting and Other
Appro vals
Permitting for Hazardous
Waste Management
Under Subtitle C
§3005(c)(3)
40 C.F.R. §270.32(b)(2)
Subtitle C authority
40CFR270.10(k)
Consider perm it
conditions under
"omnibus" authority to
address environmental
justice issues on a case-
by-case basis.
Require, evaluate, and
disseminate information
pertaining to
environmental justice
issues during the
perm itting process.
Request ATSDR to
conduct a health
assessment if a disposal
facility "poses a
substantial potential risk
to human health.
Final-November 3, 2004
Page B-43
-------
Activity
Statutory Provision
Regulatory Provision
Implementation Action
Permitting for Hazardous
Waste Management
Under Subtitle C
Public Participation in
Permitting
§4005(c)
40 C.F.R § 239.10
Evaluate sufficiency of
state permitting systems
for management of
facilities that receive
household hazardous
waste and small quantity
generator waste that is
exempted from regulation
under Subtitle C.
Delegation of Programs
To States and Tribes
Hazardous Waste
Regulation
§30 06 (a)
40 C.F.R. Part 271
§3006
§§3006(b), 3009
40 C.F.R. §§271.19(a),
40 C.F.R. §271.19(e)
Revise state program
guidelines to include
consideration of
environmental justice
issues, consistent with the
requirements of the
Federal program, and
encourage states to adopt
environmental justice
consideration in their
programs, more
gen erally.
Comment on proposed
state permits during
public comment period.
Ensure that State RCRA
programs' consideration
of environmental justice
is "no less stringent"
than the Federal
program.
Enforcement
Administrative Orders,
Civil Actions, and Citizen
Suits
§§3008, 3008(g)
RCRA Civil Penalty
Policy (October 1990)
Consider issues of
environmental justice in
penalty phase of actions,
Final-November 3, 2004
Page B-44
-------
Activity
Statutory Provision
Regulatory Provision
Implementation Action
Enforcement cont.
§3008
§3008(d)
Criminal Enforcement
Imminent and Substantial
Endangerment
Corrective Actions
§7003
§3005(c)(3)
Guidance on the Use of
Section 7003 of RCRA,
Section II., Bullet 1 (Oct.
1997)
40 C.F.R. 270.32(b)(2);
264.101
and/or in fashioning
injunctive relief.
Encourage use of
Supplemental
Environmental Projects.
Set priorities for
enforcement, compliance,
and permitting activities
with attention to
environmental justice
issues.
Consider issues of
environmental justice in
exercise ofprosecutorial
discretion and targeting.
Consider issues of
environmental justice
when making "imminent
and substantial
endangerment"
determination and
establishing "necessary"
actions to address
conditions.
Esta blish p erm it
corrective action
requirements that address
environmental justice
issues, such as sensitive
or vulnerable
populations, and other
requirements "necessary
to protect human health
and the environment. "
Information Gathering
Research
§§2002(a)(2),
(a) (5), 80 01 (a)
§§3012, 3016
40 C.F.R.
260.2,
Undertake research and
develop capacity with
others, as appropriate, to
address better the
environmental justice
issues.
Assist states and federal
Final-November 3, 2004
Page B-45
-------
Activity
Statutory Provision
Regulatory Provision
Implementation Action
263.22 (B)
agencies in assessing and
making available
information regarding
TSDFs and transporters.
Information Gathering
continued
Monitoring, Sampling
and Inspecting
§§3007(a), 3005(c)(3),
3013(d)
40C.F.R. §279.10(k)
§3 007 (a)
Require facility owners,
as appropriate and
necessary, to carry out
studies or risk
assessments necessary to
determine the nature or
extent of hazard posed by
hazardous waste, and
where appropriate
establish permit
conditions under
"omnibus" authority.
Involve members of
proximate community in
inspection process.
Financial Assistance
§§3011,P.L.105-276
40 C.F.R. Part 35.210-218
and 40 CFR 35.720-
35.725
Include consideration of
environmental justice
issues as a factor in
allocating and awarding
funds for hazardous waste
management program
gran ts.
Final-November 3, 2004
Page B-46
-------
Safe Drinking Water Act
("SD WA ")
42 U.S.C. § § 300f-300j-26
Activity
Statutory Provision
Regulatory Provision
Implementation Action
General Provisions
National Drinking Water
Advisory Council
§1446
Ensure that membership
of the National Drinking
Water Council includes
individuals with
knowledge of
environmental justice
issues.
Standard Setting/Rule-
Making
Public Water Systems
§§ 1412, 1412(b)(3)(C),
and 1412(b)(l)(C)
§ 1414(c)
40 C.F.R. §141.32 and
Part 141, Subparts O and
Q
Establish Maximum
Contaminant Levels
(MCL) and Maximum
Contaminant Level Goals
that take into
consideration sensitive,
vulnerable, or other sub-
populations. Establish
priorities based on public
health criteria.
As required under the
public notice and
consumer confidence
report regulations, help
public water systems to
develop and provide
information to
vulnerable, sensitive, or
subsistence populations
about drinking water
risks, and present such
information in an
understandable manner.
Final-November 3, 2004
Page B-47
-------
Activity
Statutory Provision
Regulatory Provision
Implementation Action
Standard Setting/Rule-
Making continued
cont'd
§1415
40 C.F.R. §142.313(b)
40 CFR part 142, subpart
C
§1415(a)(l)
40 CFR part 142, subpart
C
§1415(a)(l)(F)
40 CFR part 142, subpart
C
Consider environmental
justice issues when
determining whether to
grant a variance. Review
and object to State
granted variances that
are not protective of
surrounding community.
Periodically review state
variance programs to
help ensure that
variances are protective
ofsubpopulations.
Consider whether a
variance granted,
because of the condition
of raw water, would
result in "an
unreasonable risk to
health " to vulnerable,
sensitive, or other
subpopulations.
Consider environmental
justice issues when
conducting 3-year
reviews of State granted
variances.
Standard Setting/Rule-
Making continued
'1416
40 C.F.R. §§142.22 -
142.24
Ensure that State or
Federal granted
exemptions do not result,
either individually or in
the aggregate, in an
"unreasonable risk to
health " to sensitive,
vulnerable or other sub-
populations. Consider
environmental justice
issues when conducting a
"comprehensive review of
exemptions granted... by
the States. "
Final-November 3, 2004
Page B-48
-------
Activity
Enforcement
Imminent and Substantial
Endangerment
Civil Actions
Underground Injection
Control
Statutory Provision
§1431 (a)
§1414
§142 3 (a)
Regulatory Provision
40 CFR Part 22
Implementation Action
Consider environmental
justice issues when
deciding whether to take
action to protect the
health of persons based
on information that a
contaminant present in or
likely to enter a public
water system or
underground source or
drinking water may
present an imminent and
substantial endangerment
of the health of persons.
Consider environmental
justice in establishing
enforcement priorities
and civil and
administrative penalty
determinations. The
statute provides for a
court to consider the
"population at risk, and
other appropriate
factors" in establishing a
penalty in a civil action.
Consider environmental
justice issues when
fashioning remedy.
Encourage use ofSEPs.
Consider environmental
justice in establishing
enforcement priorities
and civil and
administrative penalty
and related
determinations, as above.
Final-November 3, 2004
Page B-49
-------
Activity
Source Water Protection
Programs
Wellhead Protection
Program
Source Water Quality
Assessment
Sole Source Aquifer
Protection
Statutory Provision
§1428
§1453, 1454
§1424(e)
Regulatory Provision
40 CFR Part 149
Implementation Action
Review State biennial
status reports for
completeness and with
respect to environmental
justice issues.
Recommend to the States
that they use source water
quality assessment to help
identify potential
environmental justice
issues (e.g., cumulative
impacts, local knowledge
of conditions) and use
this information in source
water protection efforts.
Encourage States to
solicit participation of
sensitive or vulnerable
sub -populations in
technical and citizens'
advisory committees and
in the decisionmaking
process.
Solicit participation in
identification,
designation, and
protection of sole source
aquifers.
Final-November 3, 2004
Page B-50
-------
Activity
Information Gathering
Reporting
Research
Monitoring
Statutory Provision
§1414(c)(3)
§1442 (a)
§1458
§1445
§1445(g)
Regulatory Provision
Implementation Action
Review State annual Safe
Drinking Water Act
reports for environmental
justice issues. Use
reports as the basis for
making compliance
assurance
reco mm endations.
Research and investigate
environmental justice
issues, and direct use of
assistance authorities to
systems or contaminants
affecting sensitive or
vulnerable sub-
populations.
" [Cjonduct a continuing
program of studies to
identify groups... that
may be at greater risk
than the general
population of adverse
health effects from
exposure to contaminants
in drinking water. "
Require information
collection and
maintenance of records
sufficient to determine the
adequacy of protection of
sensitive, vulnerable or
other sub populations.
Establish and maintain a
database of the
occurrences of regulated
and unregulated
contaminants in public
water system in a manner
that is widely accessible
and easy to use.
Final-November 3, 2004
Page B-51
-------
Activity
Statutory Provision
Regulatory Provision
Implementation Action
Financial Assistance
§144 3 (a)
§1443(b)
40 CFR 35.170-35.178
and 40 CFR 35.670-35-
678
40 CFR 35.190-35.198
and 35.680-35.688
Consider including
environmental justice as
a factor for allotting
funds to states and
awarding grants to tribes.
Provide grants to eligible
Tribes to develop and
implement UIC
programs.
Final-November 3, 2004
Page B-52
-------
Toxic Substances Control Act
("TSCA")
15 U.S. C. §§2601-2692
Activity
Statutory Provision
Regulatory
Provision
Implementation Action
General Provisions
Public Information and
Assistance Provisions
§§21, 212, 405(d),
406, 405(e)
40 C.F.R. §§745.80,
745.225, 745.85
Solicit and respond to concerns
relating to environmental justice
issues. Provide direct assistance
or training to populations at high
risk of exposure to asbestos or lead
hazards.
Standard Setting/Rule-
Making
Regulation of Existing
Chemicals Generally
40 C.F.R. §§720.1,
721.1
Regulation of Existing
Chemicals Generally
Consider environmental justice
concerns on a case-by-case basis in
determining whether a substance
poses an unreasonable risk of
injury to health or the environment.
When considering whether a
chemical creates an imminent and
unreasonable risk of serious or
widespread risk, consider issues of
environmental justice, prior to
taking appropriate action under §6.
Final-November 3, 2004
Page B-53
-------
Activity
Statutory Provision
Regulatory
Provision
Implementation Action
Standard Setting/Rule-
Making continued
Regulation of Existing
Chemicals Generally
Poly chlorinated
Biphenyls
§6(e)
40 C.F.R. §§
761.75(c)(3)(ii),
761.70
Permitting and Other
Appro vals
§5(e)
40 C.F.R. §§
761.75(c)(4),
761.70(d)(5)
40 C.F.R.§720.45
§5(b)
40 C.F.R.§720.50
Include requirements addressing
environmental justice concerns
necessary to ensure the operation of
the chemical waste landfill or
incinerator does not present an
"unreasonable risk of injury. "
Solicit, as appropriate,
participation of
individuals/community with
environmental justice concerns
prior to issuing decisions.
When reviewingpre-manufacturing
notices, consider whether
environmental justice issues would
create unreasonable risks, or
whether sufficient information
exists to make that determination.
Consider environmental justice
issues when identifying the list of
substances with respect to which
activities may present an
unreasonable risk of injury to
health or the environment.
Delegation of Programs
to States and Tribes
§404
40 C.F.R. §745.327
Consider environmental justice
issues when reviewing state
certification and application for
authorization. Ensure adequate
review of state certifications.
Provide compliance assistance to
build state capacity to address
environmental justice issues.
Final-November 3, 2004
Page B-54
-------
Activity
Statutory Provision
Regulatory
Provision
Implementation Action
Enforcement
Civil Penalties
Asbestos in Schools
Lead-Based Paint
§16(a)
§11
§§207(a), 208(d)
§§ 402 work
practice standards,
lead hazard level;
and 403 practice
standards, lead
hazard level; 406
lead hazard
information
pamphlet;
407 Record-
keeping; 409
Prohibited Acts;
Residential Lead-
Based Paint Hazard
Reduction Act
Section 1018
40 C.F.R. §§22.4,
745.87, 761.135
40 C.F.R. §745.118
40 C.F.R.
§745.226(b)
40 C.F.R. §763.97
40 C.F.R. §§745.87,
Sub-part E, 745.118,
745.85
Sub part F
85,86,87,107,113(b)(
c), 115,118
Consider environmental justice in
establishing enforcement priorities
and penalty determination.
Consider environmental justice
issues when targeting facilities,
sectors, exercising prosecutorial
discretion, and when determining
penalty amount (e.g., when
considering the nature,
circumstances, extent, and gravity
of the violation). Consider use of
SEPs.
Target inspections to areas with
environmental justice concerns.
Train inspectors to identify
environmental justice issues.
Target schools with environmental
justice concerns in the evaluation
whether local education agencies
are taking sufficien t action to
address asbestos concerns.
Focus attention on the lessee
provisions of Section 1018.
Disseminate compliance assistance
information, and take
environmental justice issues into
consideration when undertaking
enforcement actions. Consider
SEPs.
Final-November 3, 2004
Page B-55
-------
Activity
Statutory Provision
Regulatory
Provision
Implementation Action
Information Gathering
Testing Chemical
Substances
§4 (a)
40 C.F.R. §790.40
§4(b)(5)
§8(c)
40 C.F.R. §790
40 C.F.R. §717
Reporting and Record-
Keeping
§8(e)
40 C.F.R. §717
Research
§10, P.L. 106-74
In determining whether a chemical
substance may pose an
unreasonable risk, consider fully
the potential health and
environmental risks to communities
with environmental justice issues
(e.g., unique exposure pathways,
subsistence, vulnerable, or sensitive
populations).
Solicit the involvement of
individuals with, and/or expertise
in, issues of environmental justice.
Inspect and assess records of
"alleged " significant adverse
reactions and consider information
in context of specific areas of
environmental justice concern.
Provide compliance assistance to
chemical manufacturers and other
appropriate entities to facilitate full
compliance of reporting
requirements.
Conduct research and monitor the
use, processing, distribution, etc...
of chemical substances relating to
issues of environmental justice.
Provide grants or cooperative
agreements to community-based
organizations or others to conduct
research, development, monitoring,
public education, training,
demonstrations, and studies
necessary to carry out the purposes
ofTSCA.
Final-November 3, 2004
Page B-56
-------
Activity
Statutory Provision
Regulatory
Provision
Implementation Action
Financial Assistance
§28
40 C.F.R. § §
35.310, 35.312
§27
Make grants to states, on a case-by-
case basis, to implement programs
that prevent or eliminate
unreasonable health and
environmental risks associated
with a chemical substance where
the states demonstrated a priority
need relating to environmental
justice concerns.
Consult with the Department of
Health and Human Services
regarding grantmaking to non-
profit organizations to address
environmental justice concerns.
'305, 306
40 C.F.R. .
-35.298
'35.290
When providing technical
assistance under § 305, to the
maximum extent practicable and
consistent with the objectives of the
demonstration, homes of low-
income persons should be selected
for evaluation and demonstration of
mitigation methods.
Evaluate whether attention to
environmental justice concerns
should be deemed a criterion
necessary to promote the goals of
the radon grant program and an
activity to be given priority when
state applications for funds exceed
the total funds available.
Final-November 3, 2004
Page B-57
-------
Appendix C
Example Application of the
Environmental Justice Assessment Methodology
This example application of the environmental justice assessment methodology is
intended to be a teaching tool only. It is written to clearly indicate a situation where there is a
valid concern about an environmental injustice. In the interest of clarity and to provide an
illustration of the use of the entire environmental justice assessment methodology, the storyline
uses exaggerated characterizations of situations and individuals. EPA recognizes that the vast
majority of individuals in the real world who are depicted do not fit the descriptions provided in
this hypothetical case study.
PART 1: THE HYPOTHETICAL ENVIRONMENTAL INJUSTICE SITUATION
You are an EPA employee who has been assigned the responsibility of conducting an
assessment of an allegation of environmental injustice that has been brought to the Agency's
attention by a multi-racial and ethnic community group, Citizens for Environment Justice, from a
small community in Chestnut Heights County. Various members of the community group have
asked you to accompany them on a walking tour through their urban community. As the tour
begins, you see broken glass strewn about the streets, vacant lots, and boarded-up buildings.
There are large abandoned industrial facilities that, on their face, suggest contamination problems
since the old signs indicate that these buildings at one time housed manufacturing operations
involving chemical dyes, petrochemicals, and paint. You notice a steady stream of huge tractor
trailers filled with garbage headed for the mammoth regional hazardous waste landfill that is
located nearby. The huge tractor trailers leave a distinctive odor of decaying trash as they go by.
As the walking tour continues, the residents complain not only about their quality-of-life
problems because of the continuous noise and odors from the tractor trailers but also of the high
incidence, in their view, of the cancer and asthma they believe result from several pollution-
generating facilities in the community. They complain about the fact that although there are a
considerable number of community residents with upper respiratory ailments, the closest
hospital, the primary health care facility for the community, is 50 miles away. Moreover, they
complain about the fact that the only jobs that are available to community members are at the two
regional waste transfer stations located in the middle of a residential community, and, altogether,
there are only 10 low-paying jobs at those facilities.
The community residents insist that you visit the waste transfer stations. At both waste
transfer stations, there are six huge tractor trailers neatly lined up in a row with their engines
running. The smell of diesel fuel is apparent. The operators of the waste transfer stations
recognize the residents walking with a stranger and, immediately, the doors to the facilities are
shut.
This is a predominantly African-American neighborhood, commonly known as "The
Pits" to the rest of the city and as "Census Tract 9999" to the city planners. To demographers, a
Final-November 3, 2004 Page C-l
-------
"census tract" is "a small statistical subdivision of a county with a clearly identifiable population
of about 4,000 persons." However, this particular census tract has a total population of 500
residents, of whom 300 are African-American; 50 are Hispanic; 50 are urban-dwelling Native
Americans; 50 are Asians; and 50 are White (Non-Hispanic). Regardless of the race, color, or
national origin, the vast majority of residents (approximately 95%) are renters, whose median
income is $6,000 per year. The residents inform you that the community was founded by newly
freed slaves after the Civil War. All of the African-Americans are descendants of the original
founders, and all attend the same church. The church pastor is the charismatic Reverend Dr.
Donald Murray who is also President of the Citizens for Environmental Justice.
The Hispanic community members are recent arrivals from Mexico, the majority of
whom are farm workers who work at farms that are located on the outskirts of the city. There is
a particular corner in the community where the men gather each morning and are hired on-the-
spot by supervisors from the farms. Each day, the men come home and their clothes smell of
pesticides that have been sprayed on the crops, exposing the women who wash the clothes and
their children to those chemicals.
The Native Americans are also fairly recent arrivals who have left the reservation with the
hope of improving the quality of their lives. Their former reservation, which is 100 miles from
the city is, unfortunately, a Superfund site now. It is located downstream from 3 industrial plants
that were contaminating the Kojo River. The part of the river near the reservation no longer has
any fish, and the regional USEPA office has stated that the riverbed and the reservation soil are
contaminated with a variety of hazardous and toxic substances. Therefore, any crops grown on
the reservation are suspect because of the contaminated soil.
The Asians are from Viet Nam who are working diligently to establish fishing businesses.
However, the local river, which is a tributary of the Kojo River, is also contaminated by
industrial wastes. The state environmental regulatory agency, the Department of Environment
Quality (DEQ), has posted several fish advisories that these and other local fishermen ignore
because they and their families need to eat the fish to survive.
Finally, the whites represent families primarily from Scandinavia who, at one time,
worked at the former industrial facilities. Some of these families own their meager homes. All of
the men are old and sick. They believe that their illnesses (lung cancer and emphysema) were
caused by the plants where they worked and are exacerbated by the air that they now breathe.
The representatives of Citizens for Environmental Justice assert that the state
environmental regulatory agency licensed a disproportionate number of regional commercial
waste-processing facilities in their community in violation of federal law. They state that the
agency issued six air quality permits (among other types of permits) in the last 10 years, and is
considering issuing a seventh permit over the community's objection. The representatives
provide you with a list of commercial waste facilities that have operating permits, including air
emissions permits that they obtained from the DEQ:
Final-November 3, 2004 Page C-2
-------
(1) Webster's Regional Hazardous Waste Incinerator (which incinerates liquid
hazardous wastes from industrial plants throughout the state) with a permit
capacity of 250,000 tons per year;
(2) Johnson Regional Recycling Company (which repairs and recycles oil drums and
has a very spotty environmental record based upon the state's enforcement and
compliance records as reported by a well known journalist) with a permit capacity
of 400, 000 tons per year;
(3) National Hospital Disposal Operations (which burns hazardous and other
chemical wastes from state and private hospitals, nursing homes or other health
care facilities) with a permit capacity of 150,000 tons per year;
(4) Environmental Protection Regional Landfill (which accepts any kind of industrial
and household waste) with a permit capacity of 500,000 tons per years; and
(5) Gerrardos Regional Waste Transfer Stations (which handles industrial and
household wastes going to and coming from the regional landfill for shipment out
of state) has 2 facilities with a combined total capacity of 300,000 tons per year.
The air quality permit application that is under consideration is for Re-Tellus, Inc., which
will be a waste processing facility of oil contaminated soil with a permit capacity of 200,000 tons
per year. Representatives of Citizens for Environmental Justice point out that the agency has
issued only three such permits to other regional commercial waste operators in three other census
tracts of Chestnut Heights County, totaling a permit capacity of 600,000 tons per year.
Citizens for Environmental Justice believe that their community is targeted by the
decisionmakers because it is predominately minority and all of the residents are low-income and
because they are not familiar with environmental laws, regulations, and policies. Furthermore,
they believe that their community is targeted because it lacks representation on the County Board
of Supervisors. The representatives of Citizens for Environmental Justice tell you that they
decided not to file a formal Title VI complaint but they want their environmental justice concerns
to be addressed.
As stated previously, their community is only 4.77 square miles and is the smallest of
Chestnut Heights County's 140 census tracts. The Pits has no representation on the County
Board of Supervisors because it is unincorporated, and all environmental and land use decisions
regarding the community are made by others who reside elsewhere. In fact, there has never been
any representation from a minority group in the history of the County Board of Supervisors.
This may be the reason, from the community's point of view, why the Pits is not connected to the
County's wastewater treatment system and the homeowner residents and the landlords continue
to use antiquated septic systems that are known to be leaking into the groundwater. Furthermore,
the community has no access to the County's public transportation system and, therefore, the
residents must rely on old cars (if they own one) to get to the nearest hospital 50 miles away.
The Pits is the only census tract in Chestnut Height County that finds itself in this unenviable
position.
Final-November 3, 2004 Page C-3
-------
In response to complaints by Citizens for Environmental Justice, the state DEQ
conducted one public hearing less than a month ago. The documentation provided by the DEQ
was written in highly technical language and is more than 3 inches thick. At this public hearing,
there was no translation of the documents or testimony into Spanish or Vietnamese, although the
community requested such assistance because approximately 40% of both of those groups do not
speak or read English. Finally, the community has no access to independent technical advisors or
environmental attorneys.
Citizens for Environmental Justice is a grassroots group that was formed less than 2 years
ago. It was formed because of the community's concerns regarding the application for a permit
filed by Re-Tellus, Inc. This grassroots group has incorporated various tactics in their fight
against environmental injustice. They have used public protests and demonstrations to intensify
public debate on the issue and community hearings and "fact-finding" reports to educate the
community. They have sought to place maximum public pressures on the existing "polluters"
and the state environmental regulatory agency. Except for the employees of the waste transfer
stations, all residents of the community are united in their fight against the permit being issued to
Re-Tellus, Inc.
As you finish your walking tour, you review your notes, which strongly indicate an
environmental justice situation However, you have heard facts only from the Citizens for
Environmental Justice representatives and need more information before you can determine if
this situation represents an environmental justice situation in which EPA should be involved and
if so, what next steps are most appropriate. You therefore assemble a small group of EPA staff
to begin a Screening-Level Assessment of readily available information from your tour and from
other relevant sources.
PART 2: APPLICATION OF ENVIRONMENTAL JUSTICE METHODOLOGY
To conduct the Screening-Level Assessment of the allegations raised by Citizens for
Environmental Justice, your Assessment Team will use the four-phase methodology described in
Chapter 4 of this Toolkit. The Assessment Team uses the data collected during the walking tour
of the community and supplements those data with other readily obtainable information as
necessary.
The subsections below indicate how data from the walking tour are used in the six steps
of the methodology, what additional data might be collected, and what conclusions may be drawn
from the data available.
Phase I: Problem Formulation
At your first meeting with the Assessment Team, you begin to formulate the problem to
be addressed by your assessment. You define the context, scope, and participants for the process.
Once the full Assessment Team is convened, additional attributes of the problem are defined.
These include the community of concern, reference communities, assessment endpoints,
indicators that can be used to evaluate the assessment endpoints, and level of effort needed to
conduct the preliminary investigation. Each item is discussed in turn below.
Final-November 3, 2004 Page C-4
-------
Context - The situation in question was brought to EPA's attention by the multi-racial
and ethnic community group, Citizens for Environmental Justice, who assert that their
community is suffering disproportionate environmental impacts because a large number
of nearby commercial waste-processing facilities have been granted air quality permits.
Of particular concern to the group is that the state is considering issuing a permit for yet
another facility. In this case, EPA might have a role because it involves permits under
EPA's Title V air permitting program, even though permitting facilities have been
delegated to the state. The Assessment Team suggests that it would be appropriate to
consider the environmental impacts from both the existing conditions (e.g., the facilities
already in operation) as well as the potential impacts from the new facility.
Scope - The situation involves one relatively small community in one county in the state
and is focused (for now) on the issuance of an air permit to one new facility; however,
there already are several other permitted facilities in the community. Much of the
available data for the Screening-Level Assessment was obtained during the walking tour.
The Citizens for Environmental Justice are likely to be of assistance in obtaining more
community-specific information. The Team decides to obtain other pertinent data from
the state agency that reviewed and approved the air quality permits for the existing
facilities.
Participants - The Assessment Team decides to involve the Citizens for Environmental
Justice in the assessment process, given that they have extensive knowledge of the
community and the history of the current situation. Involving this group will also ensure
that the Assessment Team analyzes factors that are of importance to the community and
that any potential decisions are discussed in consultation with the community
representatives. You therefore invite the Citizens for Environmental Justice to send two
representatives to join your Team to plan the assessment.
Affected Area or Community of Concern - During problem formulation, the
Assessment Team defines the affected or potentially affected area and/or community. In
this case, the community of concern has defined its own boundaries to consist of the
predominantly African-American neighborhood, commonly known as "The Pits" to the
rest of the city, and as "Census Tract 9999" to the city planners. The representatives for
Citizens for Environmental Justice bring data they have collected from several agencies
over the past several months. The data indicate that this particular census tract has a total
population of 500 residents, of whom African-Americans make up 60% of the
population; Hispanics represent 10% of the population; Native Americans represent 10%
of the population; Asians represent 10% of the population; and Whites (Non-Hispanic)
represent 10% of the population. Regardless of the race, color, or national origin, the vast
majority of residents (approximately 95%) are renters, whose median income is $6,000
per year.
Reference Community or Communities - For purposes of ascertaining whether the
community of concern is disproportionately affected, a reference community or set of
statistics is identified. The reference community can be defined as another community of
Final-November 3, 2004 Page C-5
-------
equal size, the surrounding county, the region or metropolitan service area, the state, or
the entire United States. The Citizens for Environmental Justice group has described its
environmental burden in comparison with communities in the rest of the county outside
of the Pits where the facilities could have been located. Thus, the Assessment Team
decides that county-level statistics would be an appropriate reference point for the
Screening-Level Assessment. In Chestnut Heights County, whites comprise 92.4 % of
the population, exclusive of the Pits.
Assessment Endpoints - A next step in problem formulation is to identify and agree
upon the endpoints of concern in the assessment. In environmental injustice situations,
the ultimate assessment endpoints include the potential for disproportionately high
adverse impacts on environmental conditions, human health, and welfare (including
economic and social welfare) in the community of concern compared with other
communities. In the current situation, the citizen's group has identified health risks from
releases by permitted facilities as an important endpoint for them. While meeting with
your Assessment Team, the representatives from Citizens for Environmental Justice
indicate that they are also concerned about risks from traffic accidents involving wastes
and other quality of life issues including noise. Your Assessment Team agrees to include
those endpoints in the screening assessment, although you indicate that their group will
probably need to take up those issues with the local agencies and planners.
Indicators for the Assessment - The next step in problem formulation is determining
which environmental justice indicators will be used to assess the endpoints identified
above. The Assessment Team writes down the questions that the assessment is designed
to answer and the indicators that address each question. The Assessment Team then
reviews the information collected during the walking tour to identify the environmental
indicators for which it already has information and those for which information will need
to be collected during the assessment.
Conceptual Model - Next, the Assessment Team lays out a conceptual model of the
problem. They use a county map to delineate the Pits and mark the locations of the
existing facilities and the location of the facility for which the new permit is being
developed. The EPA members of the team develop a flow diagram that identifies the
facilities as the sources of substances released to the air, how those releases combine to
influence ambient air concentrations of those substances, and possible routes of exposure
for the citizens of the Pits in addition to breathing the air (e.g., backyard gardens). Your
Assessment Team uses the map and data from the U.S. Weather Service on prevailing
wind conditions to indicate the likely direction of emissions flows from the facilities to
the communities. The representatives from the Citizens for Environmental Justice
indicate that EPA has missed its point about accidental releases. Your team adds that
concern to the flow diagram and highlights the likely locations of accidental releases,
including major road intersections at which a traffic accidents involving waste transport
vehicles might occur. After several discussions, the representatives from Citizens for
Environmental Justice agree that the map, flow diagram, questions, and proposed
indicators for the questions do capture the issues that are of concern to them.
Final-November 3, 2004 Page C-6
-------
Analysis Plan - The final product of problem formulation is the assessment or analysis
plan. The EPA members of the team agree to obtain information available in EPA
databases (e.g., TRT) while the Citizens for Environmental Justice will provide data more
specific to the community. The full Team will meet again in two weeks to present and
discuss their findings. The Team writes these agreements down with a checklist of
information needs and agreed upon Team member responsibilities. The representatives
for Citizens for Environmental Justice take this plan, the map, and the flow diagram back
to the community for review and discussion by interested members. The community
appears satisfied that its concerns will be fairly examined. The EPA members of the
Team provide the plan to the state DEQ and the County planning board. The DEQ and
County planning board agree that the plan appears unbiased and agree to cooperate by
providing actual data for some of the indicators that the citizen's groups had volunteered
to find.
Phase II: Identification of Environmental Sources of Stress and Likelihood of Exposure
The purpose of this step is to determine whether the proposed actions or existing
situation, either alone or in combination with other sources of stress in the environment, might
cause adverse impacts on the environment in which the community lives and works. To answer
this question, the Assessment Team considers the following factors: (1) the existing sources of
stress to which the community is already being subjected; (2) potential impacts from the
proposed new facility; (3) environmental conditions (potentially resulting from stresses); and (4)
environmental vulnerability. The analysis plan called for information on several indicators:
Existing sources of stress:
Number of environmentally regulated facilities within a community. The Assessment
Team has already determined that the community contains a regional hazardous waste
incinerator, an oil drum repair and recycling facility, a medical waste incinerator, a
regional hazardous waste landfill, and two regional waste transfer stations. The EPA
members of the Team check with the DEQ and EPA regional office to determine whether
there are additional facilities in or near this community.
Length of time regulated facilities have operated within a community. The EPA
members of the Team review the state and EPA regional records to determine the length
of time each of those permitted facilities has operated both before and after permitting.
Number of current and past permit violations by those regulated facilities. The
Assessment Team was informed that the oil drum repair and recycling facility has had
compliance problems. After checking EPA's IDEA database for any data on the
facilities, the EPA members of the team examine EPA regional records and records
provided by the state's DEQ for the compliance history of each facility. The number of
abandoned sites and boarded up facilities observed during the walking tour indicate that
there may have been several historical facilities. The DEQ provides information on
several facilities that used to operate in the community but have since closed.
Final-November 3, 2004 Page C-7
-------
Number of non-point sources of pollution. The conceptual model has laid out several
non-point sources that could contribute to contaminant levels in the environment,
including mobile air emission sources (e.g., diesel trucks, highways, and heavily traveled
roads), and storm water and agricultural runoff. One Team member works with the state
DEQ to identify the major sources of mobile air emissions and storm water and
agricultural runoff in the county as a whole on the county map. There are many such
sources all over the county.
Noise Levels. High-levels of noise can place additional stress on community residents.
In the Pits, the community residents have complained of continuous noise from the truck
traffic associated with the regional hazardous waste facilities. As specified in the analysis
plan and agreed to by the Citizen's for Environmental Justice, the proximity of other
communities to major highways in the county also are considered. Based on a discussion
of traffic flow with the County planning office, the Assessment Team concludes that the
traffic noise levels in the Pits are probably comparable or even substantially less than
traffic noise levels in other communities in the county situated near Route 1, the port city,
and several other urban centers. Since EPA does not regulate noise, any further analysis
of noise levels would be conducted by the County or State.
Potential Exposure to Stress:
Proximity of those regulated facilities to the majority of the community's population. The
Pits is only four square miles. The Assessment Team use the map to determine the exact
distances of each facility to (1) the center of the Pits; and (2) to border of the community.
For the hazardous waste landfill, the Team finds the distance to the center of the
community to be 3 miles and to the border of the community to be 1 mile. Thus, the
Team concludes that those community members living closer to the landfill are more
likely to be exposed or might be exposed at higher levels to air emissions from the
landfill than the rest of the community.
Proximity to multiple contaminant sources. During the walking tour, EPA was informed
that a Superfund site is located within 100 miles of the community. The Assessment
Team used EPA databases and GIS files to identify the locations of other Superfund sites
and other potential sources of environmental contamination within 100 miles of the Pits
and throughout Chestnut Heights County. These files indicate two smaller Superfund
sites 50 miles north of the Pits, but also a larger cluster of Superfund sites near the
renovated and upscale "old town" district of the port city in the county.
Potential cumulative exposures across multiple locations. The Assessment Team has
been made aware that certain subpopulations in the area may have been exposed to
environmental contamination at significantly higher levels because of their jobs. For
example, many of the farm workers are exposed to pesticides and other chemicals in their
daily work outside the city, and their families are also exposed from the contaminants still
remaining on their clothing. EPA regional records indicate that the nearby Superfund site
is contaminated with pesticides. Thus, it is possible that the farm workers are exposed to
pesticides at their jobs and from the Superfund site. As specified in the analysis plan and
Final-November 3, 2004 Page C-8
-------
agreed to by the Citizens for Environmental Justice, this information is considered
qualitatively, and no further data are collected for this indicator during the Screening-
Level Assessment.
Potential or actual cumulative exposures to multiple stresses. The Team gleans from
EPA regional records that the Superfund site is contaminated with several other
dangerous and unsafe contaminants, toxic substances, and chemicals including benzene,
toxic coke, polychlorinated biphenyls (PCBs), polyaromatic hydrocarbons (PAHs),
selenium, arsenic, lead, and mercury. The air permits for the existing facilities in the
community indicate low-level releases of PAHs, sulfur dioxide, and particulate matter.
Data from one air monitoring station 75 miles east of the Pits indicates that the air at that
location does meet state air quality standards for both priority pollutants and other
hazardous air pollutants under the environmental conditions sampled to date. However,
air quality in or within a few miles of the Pits has never been measured. The DEQ
provides data indicating that high levels of lead used to be released from one of the closed
facilities bordering the community.
Potentially highly exposed groups. The Assessment Team is aware of the subpopulations
in the area, such as the Asians from Viet Nam, who rely on subsistence fishing despite the
concerns about the high concentrations of contaminants in the local fish. The Team flags
a potential concern for that group of mercury bioaccumulation in fish. Similarly, the
Native Americans rely on crops grown on contaminated soil, and might be exposed to
lead that accumulated over several years of past releases.
Number ofbiomarkers of exposure that are evident. In some cases, it may be appropriate
to sample the blood or other tissues of the community members to obtain additional
information on exposure to contaminants. The Assessment Team flags the Native
American subpopulation for possible measurement of blood-lead levels if the soil sample
analyses (see below) indicate lead concentrations above typical background levels for this
county and state.
Environmental Conditions
"Quality" of the air, water, and other environmental media. The Assessment Team has
observed that the overall air, water, and soil quality in and surrounding the Pits appears
poor. For example, part of the Kojo River appears to have been contaminated by the
three industrial plants, and the river no longer supports fish life. Further, the riverbed and
soil near the Indian Reservation have been found to be contaminated with a variety of
hazardous substances. The analysis plan specifies several data sources to check for
measurements of contaminants in soils, surface water, and sediments. The plan specifies
further that where existing data are inadequate for screening purposes, EPA will have
some samples collected and analyzed for contaminants. Recent measurements of
contaminant concentrations in the river's surface waters and sediments are found in
STORET and in state DEQ records for the river. EPA staff collect and send several soil
samples to a CLP laboratory for analysis of persistent contaminants of concern including
lead, mercury, arsenic, PAHs, and PCBs.
Final-November 3, 2004 Page C-9
-------
Contaminants in biota (living organisms). DEQ posted signs regarding contaminated
fish in the local river, which is a tributary of the Kojo River. As agreed to in the analysis
plan, DEQ provides the Assessment Team with the data it used to make its posting
determinations. The Team requests assistance from an EPA statistician, who uses the
data to estimate a mean contamination level representative of all seasons of the year and
the 95% confidence interval on the mean. The confidence interval turns out to be quite
large because of the limited number of measurements available.
Environmental Vulnerability
Climatic, geomorphic, and hydrogeomorphic features. The Assessment Team consults
with the local weather station to identify any atmospheric conditions that might influence
levels of contamination in the air and finds no notable conditions. The Team also
consults with the DEQ, and finds that water contamination levels are highest during the
spring thaw and snow melt. Moreover, the sediment contamination in the Kojo River is
highest at a bend near the Pits where most of the sediment is deposited.
Phase II: Characterization of the Community of Concern (continued)
The purpose of this step is to compare the community of concern and the reference
community (or communities) with respect to several different endpoints, including
demographics; factors that might increase the vulnerability of the community to stress; level of
commitment of the local, state, or federal governments to providing information to and
encouraging participation of the community; existing levels of community participation in
environmental decisionmaking; and the economic status of the community and its members. The
Assessment Team evaluates each of these endpoints as discussed below.
Demographics (including percent of population from various ethic and national origins,
population density, and population literacy). The Citizens for Environmental Justice find
and bring several demographic statistics to the Assessment Team. The data indicate that
the population of the "affected area" is 500 residents, of whom 300 are African-
American; 50 are non-white Hispanic; 50 are urban dwelling Native Americans; 50 are
Asians; and 50 are White. Thus, total minority population is 300 + 50 + 50 + 50 = 450,
and percent minority is 450/500 = 90%. Furthermore, the median income of the affected
population is $6,000, which indicates that the affected population is likely to fall below
the national poverty level.
Vulnerability factors, including community access to certain amenities ( such as health
care, public transportation, sewage treatment, and safe drinking water} and certain
behavioral patterns (e.g., smoking). The Assessment Team was told during the walking
tour that the community does not have access to public transportation or sewer service
and the nearest hospital is over 50 miles away. Members of the Assessment Team
confirm this information by examining the county's public transportation routes. The
Team also considers community access to other services, such as employment services
and re-training facilities. Furthermore, the Assessment Team was informed during the
Final-November 3, 2004 Page C-10
-------
assessment that there may be ground-water contamination. The Team meets with the
state DEQ to discuss this new complaint. The DEQ provides its records on tests of
drinking water samples for the water source used by this community, which indicate no
violations of drinking water quality standards. The Assessment Team was not provided
any information about patterns of behavior (e.g., smoking, alcohol use) that might
exacerbate the vulnerability of certain residents.
Government commitment, including expenditures for providing access to information and
for education and training, numbers of public meetings, materials distributed, and efforts
to translate documents. The data collected during this process and on the walking tour
suggest that the community has had little ability to participate in previous environmental
decisionmaking processes within the community. In consultation with the state DEQ, the
Assessment Team confirms that only one public hearing was conducted by DEQ
regarding the proposed facility, and that the supporting documents provided to the public
were too technical to be of use. Furthermore, there was no translation into Spanish or
Vietnamese, despite the large number of citizens for whom these are the only fluent
language. This assessment led by EPA is the first chance the community has had to
consult with technical experts.
Community participation, including community identification, cultural dynamics, and
levels of public participation. The Citizens for Environmental Justice have already
informed the Assessment Team that the community residents lack representation on the
County Board of Supervisors because the Pits is unincorporated.
Economic status. The County board of planning provides statistics on median and mean
income levels for the county based on the state tax assessment records. The walking tour
revealed that the two regional waste transfer facilities are the only facilities employing
local workers and that only involves ten, low-wage positions. The Assessment Team has
no difficulty concluding that the community in the Pits is economically disadvantaged
compared with the county as a whole.
Phase III: Assessment of Potential "Adverse" Environmental and Human Health Effects
or Impacts
Based on the information gathered to this point, the Assessment Team now evaluates the
likely quality of the air, soils, surface water, and sediments in and surrounding the Pits. The local
air quality has not been measured, but the state DEQ has modeled likely air concentrations using
a simple air dispersion model. The DEQ determined that even if all facilities were releasing
contaminants at the currently permitted levels, the average yearly concentration of each
contaminant in the air in the Pits and its vicinity would be below current air quality standards.
EPA members of the Assessment Team re-examine the model and ask DEQ to rerun it assuming
more extreme weather conditions for the area than assumed previously. In the new runs, the
model indicates that it is possible for PAH and particulate matter concentrations in the air to
exceed the benchmarks several times each year. Next, the EPA members of the Assessment
Team examine the assumptions used by the DEQ to estimate air releases from the proposed soil
Final-November 3, 2004 Page C-l 1
-------
remediation facility, and find them to be adequate. However, the Team members note that the
facility might increase ambient concentrations of lead, PAHs, aresenic, and particulate matter in
the air by as much as 50 percent if operating at full capacity. The Team recommends that the
screening-level risk assessment conducted in Step 4 focus on cumulative exposures to lead,
arsenic, PAHs, and particulate matter (PM). It also notes that a Refined Assessment of potential
air contamination levels may be needed before one can conclude that the air would continue to
meet air quality standards if the proposed facility were permitted to operate. STORET indicates
that the surface waters meet the state water quality standards for the contaminants of concern, but
that sediments at the bend in the river are contaminated with lead, mercury, and PAHs at levels
that exceed the state average for each contaminant by more than two orders of magnitude.
The purpose of this step is to determine whether the community of concern might be
exposed to environmental stresses or pressures of sufficient magnitude to potentially cause
adverse effects on their health or welfare. This can be done from two perspectives: one is to
determine the potential effects of the stressors, and the other is to look at the population's current
health status and its potential vulnerability to those stressors. Data collected for both
assessments include indicators on existing health conditions, which can suggest both that the
community has been exposed to stresses, as well as whether the community might be more
sensitive to some stresses than other communities would. Based on the analysis plan and the
results of Step 3, the Assessment Team focuses on health conditions associated with exposure to
lead, arsenic, PAHs, and PM.
Health Indicators data on the overall health of the community residents (e.g., percent of
infant mortality, average birth weight, adult mortality, life expectancy at birth). In
general, health-related statistics may shed light into potential exposure to contamination
or indicate a vulnerability to the affects of exposure. The analysis plan for this
assessment, however, does not call for use of this indicator because the number of
individuals living in the Pits is small. Statistics on mortality rates, birth weight, and life
expectancy for this community could not be meaningfully compared with statistics for the
county, because the community is too small for differences from county-wide values to be
detected statistically.
Indicator of Health Impacts for Environmental Stressors (e.g., number of illnesses
attributable to contaminants and number of diseases attributable to pathogens). Certain
indicators may reflect whether a subset of population has health sensitivities or might be
highly exposed. As with health-related statistics, these data are generally not available at
the Screening Level. The Citizens for Environmental Justice group believes that its
community suffers a very high incidence and severity of health problems, including upper
respiratory ailments (e.g., bronchitis, asthma) and cancer, which they attribute to the
pollution-generating facilities. In particular, a number of elderly residents believe that
their illnesses (lung cancer and emphysema) were caused by their employment at the
now-closed industrial facilities, and that these illnesses are exacerbated by the current air
quality. The Assessment Team compares the air concentrations of PM, PAHs, and the
other contaminants from the "worst case" air dispersion modeling results with health-
based reference concentrations from EPA's IRIS database. For both PM and PAHs, the
predicted worst case air concentrations did exceed the health-based reference
Final-November 3, 2004 Page C-12
-------
concentrations by an order of magnitude. Thus, it is possible that air contamination from
the existing facilities do indeed exacerbate the existing health problems of the elderly
residents under extreme, but possible, weather conditions. A more refined exposure
assessment using more realistic assumptions would be needed to conclude that the
existing facilities do not adversely affect the health of the elderly residents. Similarly, the
worst case predicted levels of lead in the air from the proposed soil remediation facility
exceeded levels considered safe for children. Thus, the Assessment Team concludes that
there is a potential for adverse health effects on the community from the proposed facility
given the possible existing levels of air contamination.
Phase IV: Assessment of Potential for "Disproportionately High and Adverse
Environmental and Human Health Effects or Impacts"
In the final step, the Assessment Team uses the data collected to assess whether it is
possible that the incidence and severity of adverse impacts from the sources of stressors
identified could be disproportionately higher in the Pits than in the county as a whole.
Because the definition of environmental justice assumes a relative comparison of impact
("disproportionate share of negative environmental consequences"), the indicators of community
trends for the Pits are examined within the context of the county as a whole. Data obtained
during the walking tour and from the Citizens for Environmental Justice indicated that the four
square-mile area of the Pits contains five permitted regional commercial waste facilities having a
combined permit capacity of 1.6 million tons per year and a proposed facility that would have an
additional capacity of 200,000 tons per year. In addition, the Pits community supports a regional
hazardous waste facility and two waste transfer stations. In the remainder of the 500 square-mile
county, containing 140 census tracts, the state only issued three similar permits in three separate
census tracts for a total permit capacity of 600,000 tons per year. This suggests that even if all
three of the facilities are incinerators, it is unlikely that their cumulative effects could be
significant because the map indicates these facilities are widely spaced across the county. On the
other hand, the three incinerators in the Pits are concentrated near the residents of the Pits,
resulting in a disproportionate potential for adverse health impacts from the cumulative effects in
the Pits compared with the other communities in the county. In addition, the other
Environmental, Health, Economic, and Social Indicators indicate to the Assessment Team that
the Pits community might be more vulnerable and susceptible to the impacts of these stresses
than other communities in the county. It also is clear that the Pits community has had limited
means of participating in decisions related to the location of these facilities.
Tentative Conclusion
At the end of the Screening-Level Assessment, the Assessment Team concludes that the
environmental justice concerns have some validity. A more Refined Assessment using more
realistic assumptions, however, is needed to demonstrate whether adverse health impacts are
likely from the proposed facility. A more Refined Assessment also is needed to demonstrate
whether those impacts are disproportionately high for the Pits community compared with the rest
of the county.
Final-November 3, 2004 Page C-13
-------
The question now is how should EPA address the concerns because the state DEQ might
not deny the permit. The Assessment Team shares its results with the state DEQ, which in turn
agrees that a more Refined Assessment is needed and that the owners of the proposed facility
should contribute resources for the assessment. To provide more room for negotiation between
the state and the proposed facility owners, the Assessment Team identifies possible mitigation
options that the state can discuss with the facility owners (e.g., measures to reduce the proposed
emission levels) or consider for state actions (e.g., establishing and maintaining additional health
care facilities closer to the community). The Assessment Team also identifies ways in which
EPA can be of assistance (e.g., providing grant funds to the state agency to improve its screening-
level air models or test cleaner burning fuels for use in the diesel trucks at the waste transfer
stations).
Final-November 3, 2004 Page C-14
-------
The Environmental Justice Assessment Methodology:
Chestnut Heights County Example
An allegation of environmental injustice is brought to the EPA by Citizen's
for Environmental Justice (CE J) from Chestnut Heights County
EPA employee conducts preliminary tour of area and review of information
Is there any evidence that an EJ issue may exist?
There is some evidence that a potential EJ issue may exist
EPA action ends here
EPA begins a Screening-Level Assessment (SLA) by assembling a diverse team of EPA employees and
involving community members from CEJ to create a Screening-Level Assessment Team. The Team gathers
and evaluates information according to the EJ Assessment methodology:
Phase 1: Problem Formation
Phase 2: Data Collection
Phase 3: Assessment of the Potential for Adverse Environmental and Human Health Effects or Impacts
Phase 4: Assessment of the Potential for Disproportionately High and Adverse Effects or Impacts
Team determines that the environmental justice concerns of the community have some validity, but more
research needs to be conducted to make a final determination. Given the critical nature of the circumstances,
EPA offers recommendations to start immediate, mitigating action and ways in which the EPA can be of
assistance.
Is it appropriate for EPA to be the lead agency in this next stage of assessment and for possible future action?
Yes
SLA Team recommends action by
another agency and may offer other
advice. EPA involvement ends here
EPA begins the more quantitative and detailed Refined Assessment using the EJ Assessment methodology:
Phase 1: Problem Formation
Phase 2: Data Collection
Phase 3: Assessment of the Potential for Adverse Environmental and Human Health Effects or Impacts
Phase 4: Assessment of the Potential for Disproportionately High and Adverse Effects or Impacts
Conclusion: EPA determines (1) whether there are adverse impacts or effects, (2) whether the adverse
impacts are high and disproportionate (environmental injustice), and (3) what action EPA will take.
Final-NovemberS, 2004
Page C-15
-------
xvEPA
United States
Environmental Protection Agency
1200 Pennsylvania Avenue, NW.
(2201 A)
Washington, DC 20460
Official Business
Penalty for Private Use $300
EPA-300-R-04-002
February 2006
Recycled/Recyclable-Printed with vegetable oil based inks on 100% postconsumer, process chlorine free recycled paper.
------- |