National Environmental Justice Advisory Council Public Teleconference Meeting Washington District of Columbia August 19th & 20th 2020


NATIONAL ENVIRONMENTAL JUSTICE
ADVISORY COUNCIL

PUBLIC TELECONFERENCE MEETING

WASHINGTON, DISTRICT OF COLUMBIA

AUGUST 19th & 20th
2020

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PREFACE

The National Environmental Justice Advisory Council (NEJAC) is a federal advisory
committee that was established by charter on September 30,1993, to provide independent
advice, consultation, and recommendations to the Administrator of the U.S. Environmental
Protection Agency (EPA) on matters related to environmental justice.

As a federal advisory committee, NEJAC is governed by the Federal Advisory Committee Act
(FACA). Enacted on October 6,1972, FACA provisions include the following requirements:

•	Members must be selected and appointed by EPA.

•	Members must attend and participate fully in meetings.

•	Meetings must be open to the public, except as specified by the EPA Administrator.

•	All meetings must be announced in the Federal Register.

•	Public participation must be allowed at all public meetings.

•	The public must be provided access to materials distributed during the meeting.

•	Meeting minutes must be kept and made available to the public.

•	A designated federal official (DFO) must be present at all meetings.

•	The advisory committee must provide independent judgment that is not influenced
by special interest groups.

EPA's Office of Environmental Justice (OEJ) maintains summary reports of all NEJAC
meetings, which are available on the NEJAC web site at

https;//www,epa,gov/environmentaliustice/national-environmental-]ustice-advisory-
council-Meetings. Copies of materials distributed during NEJAC meetings are also available
to the public upon request. Comments or questions can be directed via e-mail to

)epa.gov.

NEJAC Executive Council - Members in Attendance

Richard Moore, NEJAC Chair, Los Jardines
Institute

Sylvia Orduno, Vice-Chair, Michigan
Welfare Rights Coalition
Michael Tilchin, Jacobs Engineering
Benjamin J. Pauli, PhD, Kettering
University

April Baptiste, Colgate University
Jan Marie Fritz, University of Cincinnati,
University of Johannesburg, University of
South Florida
Rita Harris, Sierra Club
Cemelli De Aztlan, El Paso Equal Voice
Network

• Melissa McGee-Collier, Mississippi
Department of Environmental Equality

Jeremy Orr, Natural Resources Defense
Council

Pamela Talley, Lewis Place Historical
Preservation, Inc

Joy Britt, Alaska Native Tribal Health
Consortium

Kelly C. Wright, Shoshone-Bannock Tribes
Na'Taki Osborne Jelks, West Atlanta
Watershed Alliance and Proctor Creek
Stewardship Council
Millicent Piazza, Washington State
Department of Ecology
Cheryl Johnson, People for Community
Recovery (PCR)

Dennis Randolph, City of Grandview,
Missouri

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• Jerome Shabazz, JASTECH Development
Services and Overbrook Environmental
Education Center

• Karen Sprayberry, South Carolina
Department of Health and Environmental
Control

• Hermila "Mily" Trevino-Sauceda, Alianza
Nacional de Campesinas

• Jacqueline Shirley, Rural Community
Assistance Corporation

• Pamela Talley, Lewis Place Historical
Preservation, Inc

• Virginia King, Marathon Petroleum LP

• John Doyle, Little Big Horn College

• Sandra Whitehead, George Washington
University

• Sacoby Wilson, Maryland Institute of
Applied Environmental Health

• Deborah Markowitz, University of
Vermont

• Ayako Nagano, JD, Common Vision

NATIONAL ENVIRONMENTAL JUSTICE ADVISORY COUNCIL
Public Teleconference
August 19 & 20, 2019

MEETING SUMMARY

The National Environmental Justice Advisory Council (NEJAC) convened by
teleconference on Wednesday, August 19, 2020. This synopsis covers NEJAC members'
deliberations during the teleconference meeting and the issues raised during the public
comment period.

1.0 Welcome and Opening Remarks

Matthew Tejada, the Director of the Office of Environmental Justice, welcomed everyone and
stated that we have a quorum. Mr. Tejada noted 193 members of the public on the call today.
He explained the roll of the NEJAC members and introduced the chair Richard Moore and
explained that we will hear from the administrator of the EPA, Administrator Wheeler.

Richard Moore, the NEJAC Chair, from Albuquerque, New Mexico welcomed everyone to the
teleconference call. Mr. Moore welcomed NEJAC members and explained the agenda for the
day, starting with comments by the Administrator and then moving into public comments. Mr
Moore thanked the Office of Environmental Justice, and the backup staff for supporting the
session today. Matthew Tejada introduced Administrator Wheeler

1.1 Remarks from the EPA's Administrator

Andrew Wheeler I want to thank you all for joining us, although we had to do this meeting
virtually. I hope all of you are well and that you're staying safe. I was looking forward to
meeting with NEJAC leadership in person back in March, but the pandemic kept that from

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happening. NEJAC plays a critical role advising the EPA on environmental justice. Many of you
recall, the agency went through a review of all our federal advisory committees last year and
reaffirmed the importance of NEJAC. In fact, this week, EPA is signing the NEJAC charter
renewal. I want to thank you for your service on the Council and I'd also like to recognize Richard
Moore for serving as the NEJAC's Chair. Thank you so much, Richard, I certainly appreciate your
service. We continue to need your help to advance environmental justice and make measurable
progress improving the health and welfare of overburdened communities. As you may know, I
began my career at EPA's Office of Pollution Prevention and Toxics back in 1991. So, I have a
longstanding passion for preventing pollution and helping rebuild communities. One of the first
laws I worked on was the Community Right-to-Know Act. I grew up in the mid-west rust belt and
I've seen firsthand our communities that lose their economic base have a limited ability to
address environmental challenges. This is why I've made it a priority to make measurable
progress improving our environment. This includes cleaning up Superfund sites at a record pace,
returning many to productive use. This reduces exposure to hazards and creates economic
activity that can rebuild and sustain communities. Over the last three years, EPA has fully or
partially delisted 57 sites from the National Priorities List and last year, we deleted all or part of
27 Superfund sites, the largest number of deletions in a single year since fiscal year 2001. In
fiscal year 2020, EPA announced the selection of 155 grants for communities and tribes totaling
over $65 million in Brownfields funding through the agency's Assessment, Revolving Loan Fund
and Cleanup. Of the communities selected this year, 118 clean up Brownfield sites within
communities that have opportunity zones. We have taken aggressive action on lead exposure.
Two years ago, the federal government released an action plan to ensure that our nation's
children, especially those in vulnerable communities, will be protected from lead exposure. Since
then, EPA has finalized stronger dust-lead hazard standards and increased enforcement and
compliance efforts. We also proposed the first major update to the Lead and Copper Rule in over
two decades. It requires systems to act faster to reduce lead, requires testing in schools and
childcare facilities and mandates communication and transparency with the public. And we
awarded over $69 million - excuse me - in the last two years to states, territories and tribes for
lead testing in schools and childcare facilities located in low income and disadvantaged
communities. In President Trump's 2020 budget, EPA is proposing a $50 million Healthy Schools
Grant Program to expand protections on children where they learn and play. EPA has prioritized
critical investment in water infrastructure. Through our various water financing programs, we
have spent $38 billion on water infrastructure in the United States since the beginning of this
administration and we will spend more in the future. EPA is also improving air quality in urban
areas. Over the past three years, we've approved over 1,200 SIPs or State Implementation Plans
both new and backlog and re-designated 49 non-attainment areas across the country back into
attainment, recognizing the pollution controls that have taken place in a number of inner cities
across the country. By 2022, working with state partners, we are on track to re-designate at
least 65 of the 166 areas that were designated non-attainment by October 2022. And in the
past three years under President Trump, air pollution has fallen seven percent. We have vastly
increased our enforcement efforts, holding polluters accountable at a record rate. In 2019, we

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reported increases in every criminal enforcement measure with 170 new cases opened, 141
defendants charged, and 123 defendants convicted with $48 million in fines and $60 million in
restitution. From 2017 to 2019, there has been a 79 percent increase in self-disclosure violations
by facilities leading to greater compliance by those facilities. And we continue to aggressively do
civil and criminal cases during the pandemic. In response to COVID-19, EPA launched a new
grant program to address the needs of communities is proportionately affected by the crisis. We
are on track to award $1 million in funding to state, local and tribal governments
disproportionately affected by the pandemic by this October. Within EPA, we have taken steps
to strengthen environmental justice. In 2018, the Office of Environmental Justice was elevated
into my immediate office to ensure your equities are considered at the highest levels of
management and in development of policy. Previously, the Office of Environmental justice was
located in the Enforcement Office. I believe firmly that we should not wait until enforcement in
order to incorporate environmental justice in the programs of the EPA. By elevating it to the
Administrator's Office, we are elevating environmental justice earlier in the process so that we
can include environmental justice issues across the board in everything we do at the agency.
Also, in 2018, President Trump's signed America's Water Infrastructure Act, the first bill ever, the
first law ever to codify environmental justice, solidifying its existence in the EPA organization.

This is the first time that a law mandates staff resources solely dedicated to serve as liaisons to
minority, tribal and low-income communities in EPA's regional offices nationwide. To ensure our
environmental justice and community revitalization efforts work cohesively, we launched the
Environmental Justice and Community Revitalization Council, a senior level body to support and
coordinate across the agency. And last year, with the regional realignment effort across all 10 of
our regions, we elevated EJ staff in each of our 10 regional offices to the RA or the Regional
Administrator's Office to better serve minority, tribal and low-income communities. While these
may be internal-facing and would seem to go unnoticed, they are important in helping the
agency address environmental challenges every single day. This administration has made some
tremendous progress and, overall, EPA has done a remarkable job in cleaning up our air, water
and land over the last 50 years. However, there is no disputing the fact that many challenges
remain for many vulnerable communities. We cannot regulate our way out of these issues, for
doing so could threaten the economic base which our communities need to survive, thrive and
grow. Instead, we need to find new opportunities to collaborate and make progress together.
Consequently, one of my top priorities moving forward in developing and implementing the
community-based approach is environmental protection. This will require a major shift in the
way we do business. One of the biggest challenges facing the EPA has been to tear down the
silos in our program offices to address the suite of environmental threats facing communities.
President Trump called me last spring to ask me to plan for the priorities for the second term.
We have identified five key priorities for the second term. I might get ahead of my boss in
announcing them, but one of the five is expanding our community-based outreach across the
board and this is going to be good news for our environmental justice communities. I welcome
your thoughts on ways that EPA can better address community environmental needs. We intend
to do so in a more holistic manner and we certainly encourage your input and your thoughts

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over the coming weeks and months. We must think creatively on how to make measurable and
enduring improvements in overburdened communities, because if we don't, we will continue to
fail those in the greatest need. And I believe EPA as an agency has a new focus in both protect
the places we love and bring back the places that have been hurt by past pollution activities. If
we focus our attention properly, we can help these places become the healthy communities they
have been striving so long to be. I want to thank you all again for your service, for your
willingness to serve on this very important committee. This committee is going to be vital as we
move into the second term and plan our approach for the community-based approach to
environmental protection. I'm looking forward to a read out from the staff on the discussions
that you have today and tomorrow and in particular, on the NEJAC Superfund Taskforce work. I
know we got started late, so I have a few brief moments for questions. So, I'll take as many as I
can. I am sitting in a car outside the airport, so I have a very hard stop in order to get to my
plane. Thank you.

Karen Martin, the Designated Federal Officer (DFO), thanked the Administrator for taking the
time to join the call. The DFO indicated that a few NEJAC members have questions and Vice-
Chair, Sylvia Orduno we will start with the first question.

Sylvia Orduno, the Vice-Chair of NEJAC, from Detroit, Michigan was pleased to know that the
Administrator had experience growing up in the rust belt and the issues that they are facing.
She noted that NEJAC was looking forward to hearing the public comments today, because of
the crises that has been happening over the past several months across the country and in
many environmental justice communities. She requested a copy of the statement that the
Administrator read to NEJAC, noting that NEJAC would like to share statement with their
stakeholders. Mrs. Orduno asked if the Administrator would come back again, so that they can
follow-up regarding the issues they learn from today's meeting.

Andrew Wheeler stated that he was familiar with the problems in the rust belt. Mr. Wheeler
said that the agency intended to finalize the Lead and Copper Rule next month, noting that it
requires mandatory testing in all schools and day care centers across the country for lead-
contaminated water.

Ayako Nagano, Board Member of Common Vision, a food school orchard program, which gives
families medicine and food. Mrs. Nagano said she has read that a lot of EPA regulations are
being rolled back. She then cited that the New York Times currently counts 100 EPA regulations
that are being rolled back; 60 roll backs have been completed, 32 are in progress, that span
everything, from roll backs for air pollution protection, drilling and extraction, infrastructure,
water pollution, toxic substances, all of these laws have been rolled back under the current
administration. She stated that she failed to understand how to make sense of how EPA has
rolled back regulations and enforcements have increased. She asked the Administrator to make
sense of these discrepancies.

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Andrew Wheeler stated that over the last two years the administration has increased criminal
enforcement statistics. Starting in 2011, they started going down and they reversed the trend
this year. He said that every single criminal enforcement statistic went up. He said they are
criticized because the number of inspections over the last 34 years have gone down. He said
that the federal EPA was doing all inspections and all the enforcement actions, but the statutes
were drafted to delegate programs to the states. Mr. Wheeler stated that more air programs
have been delegated to 48 out of the 50 states, and in water, the states are now responsible for
96 to 97 percent of all water permits, including inspections. Mr. Wheeler stated that the civil
side that conducts inspections and civil enforcement actions were states responsibility, to
justify the steadily downward trend. Mr. Wheeler says that criminal enforcement is something
that the federal EPA should be focused on. He says that he reversed the trend on criminal
enforcement professionals at the agency, and the agency has been losing criminal inspectors,
because of early retirement. Mr. Wheeler says the agency is hiring more criminal inspectors and
roll backs are a bias created by the mainstream media. Mr. Wheeler says they created a new
grant program to help schools replace their older diesel school buses with newer buses that
were cleaner. People need to know about the existence of this new grant program, and he
wanted the press to help amplify the message about the new grant program. He stated that the
new regulation on diesel truck emissions were going to take off the books two or three
guidance documents that's over 20 years old. He said that regulation did not follow the Clean
Air Act, so they rescinded that regulation because of the Supreme Court's stay, and they
replaced it with the Affordable Clean Energy Rule. The Affordable Clean Energy Rule replaced
the Clean Power Plan citing that it will get emissions reductions for the electric power sector.
Mr. Wheeler says the water criteria is the highest it's ever been and that they are getting more
Superfund sites cleaned up since 2001. The EPA has been measuring the six criteria air
pollutants for 50 years. Mr. Wheeler stated that air today is 77 percent cleaner than it was in
1970 and that he was proud of our environmental record, citing that they have 100 new
regulations to replace the 100 rollbacks. Mr. Wheeler stated that he has spent too long on that
answer, but he can take another quick question.

Karen Martin, the DFO, thanked the Administrator for taking the time and called on Melissa
Collier with her question.

Melissa Collier, the Director of the Office of Community Engagement for the Mississippi
Department of Environmental Quality, asked about the "compliance relief" that was granted to
industries at the initiation or the start of the pandemic. Mrs. Collier said since COVID has lasted
several months now, those industries have worked under this relief and have not been held to
the same compliance standards that they would be held previously. Her question is when does
the excuse of COVID no longer become used as a valid excuse? When do these industries have
to go back to their normal way of operation and be held to the same standard that their
permits require?

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Andrew Wheeler stated that EPA issued the enforcement discretion memo back in March
because so many facilities around the country were closed and each state has permits that
require different reporting. Citing that some report annually, others bi-annually, monthly, even
weekly depending upon the permit or the regulation. Mr. Wheeler said they offered discretion
only in terms of reports and monitoring reports that were required to be sent to the EPA, and
they can send it to the agency late, but they have to explain why COVID prevented them from
sending the information and the data, as identified in the discretion memo and no one was
allowed to increase emissions. Mr. Wheeler indicated that facilities still need to follow the
emission requirements and violations were issued for emitting over the limits. The agency only
allowed people to send in their paperwork late, if they could justify it having to do with COVID,
and the discretion ended at the end of August. Mr. Wheeler noted that very few facilities took
advantage of the discretion and the EPA is trying to figure out exactly which industries and
which states were going to be late on submitting data. He also said that nobody could go above
their permitted emissions levels. Mr. Wheeler stated that he was looking forward to hearing
about what was discussed over the meeting, but he had to leave.

Karen Martin thanked Administrator and noted that the meeting will move forward, and that
the next item on the agenda is the public comment period. She turned the meeting over to the
Chair, Mr. Richard Moore to make some opening remarks before Mike Tilchin starts the public
comment period.

Richard Moore stated that NEJAC will move onto the next agenda item, public comment. He
reminded people that each person will be given three minutes to make public comment and
acknowledge that it is challenging to keep comments within three minutes. He wanted to
encourage people to stick to the three-minute piece, because over 50 people have signed up
for public comment, so it is important to describe the issue, the impact of the issue and then
additionally, what is the recommendation. Mr. Moore also noted that it is important to speak
slowly because there is simultaneous interpretation taking place and to speak directly into the
phone, and identify yourself, the name of the organization you're representing, and where
you're calling in from. He also noted that this call is being taped and notes are being taken
during this comment period, that this is a two-day session with public comments today, and a
business discussion tomorrow. Mr. Moore stated that the NEJAC Council will review the
comments made during public comment, discuss them during the business section of the NEJAC
meeting, and then decide how to move those recommendations forward. Mr. Moore turned
the meeting over to the DFO.

Karen Martin explained that the she would call the public commenter's name, the operator
would unmute the line, they can begin their comment, and they would receive a one-minute
warning to wind your comments up at that time.

Michael Tilchin, the Vice Chair of NEJAC, noted that the Council will hear pre-registered
comments first today and there may not be an open call for public comments because of time
limitations. He indicated that the public could submit comments in writing to NEJAC at the

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email address: nejac@epa.gov and that the comments will go into the record and be
considered in full by the NEJAC members. Mr. Tilchin reminded the NEJAC members with
general questions to please hold them and they will address them at the business meeting
tomorrow.

2.0 Public Comment Period

2.1 Joseph Hughes - NIEHS, National Institute of Environmental Health Sciences

Joseph Hughes, National Institute of Environmental Health Sciences (NIEHS), representing the
Interagency Working Group on Environmental Justice. Mr. Hughes shared that the EJIWG is
going to continue its work on natural disaster and environmental justice concerns and issues,
especially important during the pandemic because of the impact on people of color
communities. He proposed to the NEJAC that the group is planning to convene a series of
virtual town hall meetings on EJ and disasters, during the months of September and October.
Their plan is to have three sessions that would look at specific geographic areas of the United
States and the Caribbean Basin. Mr. Hughes noted that the first session will look at the
Southeastern United States, the Carolinas, Georgia, Florida, Alabama, Puerto Rico and the
Caribbean Islands. The second town hall session will look at the Gulf Coast, Alabama,
Mississippi, Texas, and Louisiana. And the third session will look at the Southwest and the West
Coast, Arizona, New Mexico, California, Alaska. Mr. Hughes mentioned that he has spoken with
the EJ office to coordinate with the NEJAC. He would like to sit down with the NEJAC and plan
out these sessions, identify key community leaders to speak at the sessions and ensure all key
stakeholders are included in the process. He wants to be sure to include state, local, federal,
and tribal stakeholders. Mr. Hughes wanted to update NEJAC that their committee is in the
middle of finishing up its report on the impact of EJ and Disasters. Mr. Hughes noted the
committee is planning to conduct some community engagement with the communities before
the release of the report and findings. He also stated that he and Marsha Minter will continue
to follow up with NEJAC, making sure that the voices of the community are heard in the work.

Richard Moore commented that an exceptional session took place in Jacksonville and the work
of the Interagency Working Group has been obviously crucial to environmental and economic
justice issues in the communities being impacted.

Joseph Hughes thanked Mr. Moore and added that when he read the transcripts from
Jacksonville, it was amazing to see what the words that were said, especially for Puerto Rico
and the farmworkers in Florida.

April Baptiste asked if EJIWG had dates set for the planning phase? And when they set up the
dates, will they be sent to public through the EPA's Listserv?

Joseph Hughes indicated they have not established the dates, but he wanted to ask the NEJAC
if they would be part of the planning session, or on a planning call before each one to make

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sure that they had engagement from NEJAC in the process. Mr. Hughes said they would send all
the dates and all the information about the session to EPA to send out through the EJ Listserv.

2.2 Jill Witkowski Heaps - Roll backs to the National Environmental Policy Act or
NEPA

Jill Witkowski Heaps, a former NEJAC member and Vice Chair, requested that the Council take
a formal position opposing the current EPA Administration's rollback to the National
Environmental Policy Act (NEPA). She indicated that she submitted a letter by 17 organizations
detailing some of the main problems and asking NEJAC to weigh in. Mrs. Heaps noted that her
comments opposing the regulations signed by hundreds of environmental groups and
environmental justice groups and that 40 of those groups have sued and submitted a proposed
resolution to consider instead of a letter that was promulgated by the White House Council on
Environmental Quality, the CEQ is not the EPA. She indicated that if NEJAC weighs in on the
fight against these rollbacks it could make a big difference, citing that in August of 2019, NEJAC
submitted a letter to Administrator Wheeler recommending improvements to NEPA. CEQ
proposed the rollbacks, only accepted public comment for 60 days, and only held two public
meetings. In contrast, on the Waters of the United States Rule for the Clean Water Act, they
had more than 200 days of public comment and had more than 400 public meetings. The CEQ
points to its discussion with the NEJAC in February of 2020 as proof that they addressed
environmental justice issues with the rollbacks, but this is not true and misleading. Mrs. Heaps
stated that there was no analysis of environmental justice impacts pursuant to executive order
12898 and the rollbacks are terrible for all communities, especially, for communities of color
and low-income communities. She further noted that the letter NEJAC submitted, detailed
some of the problems with the rollback that the changes also allow private industry to prepare
their own environmental reviews; making it more difficult for communities to challenge
reviewed documents in court by recommending community groups submit a bond to the court
before the court will hear the challenge.

Karen Martin indicated there were questions for Mrs. Heaps.

Karen Sprayberry from South Carolina Department of Health and Environmental Control (DHEC)
wanted to know if NEJAC has a copy of the resolution and what is the resolution referring to?

Karen Martin indicated that it was shared as part of the pre-meeting materials.

Jacqueline Shirley asked if the commenter's organization or her group have a template letter or
an action, call for action template for organizations to sign in on?

Jill Witkowski Heaps indicated that she submitted a copy of the proposed resolution for NEJAC
to act before the regulations are finalized, because the only options for communities to act is by
joining one of the three lawsuits. Mrs. Heaps indicated that the communities can always take
the letter that they submitted and modify it and send it to the CEQ if they'd like to make their
voices known.

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Na'Taki Osborne Jelks asked that Mrs. Heaps clarify what is meant by check book court
challenges to NEPA, that requires the community groups pay a bond amount before the court
would pay attention to the complaints.

Jill Witkowski Heaps explained that the check book court in the new regulations limits
community participation, that a bond must be posted, that communities would have to post a
couple thousand dollars or more to the court before they determine the correct
implementation of regulations of the agency. She noted that the practice protects companies
and the government from frivolous lawsuits by the communities challenging the regulations
that challenge a project.

Ayako Nagano asked that the council review it and discuss it.

Sylvia Orduno agreed that NEJAC should review the proposed resolution during the business
meeting. Mrs. Orduno asked about any conditions under which the EPA can undo the White
House CEQ action? Is there another way to confirm that protocols were violated, and can they
be taken up for consideration as part of some injunction that by the communities or is there
something that can be done administratively?

Jill Witkowski Heaps indicated that there is a quandary here, because these are CEQ
regulations and NEJAC advises EPA, but there's a couple places where EPA can really have a big
impact on them. She noted that the CEQ sets the overall regulations, but each agency that
oversees projects and works with NEPA, have their own NEPA regulations. The EPA can be more
protective of environmental justice communities than the CEQ regulations require. EPA should
continue to provide leadership with the EJIWG to ensure that other agencies across the board
like the Federal Highway Administration, the Army Corps, Housing and Urban Development and
others have really strong success implementing NEPA regulations that do more to protect
environmental justice communities.

2.3 Lakendra Barajas - EPA's implementation of the Toxic Substances Control Act or
TSCA,

Lakendra Barajas, an attorney in the toxic health and exposure program in the New York office
of Earthjustice, expressed her concerns about EPA's implementation of the Toxic Substances
Control Act (TSCA) and its risk evaluation process. She wanted to draw attention to a letter
regarding ethylene oxide, which had a positive impact on the miscellaneous organic chemical
manufacturing rule. Her hope is that NEJAC can have a similar impact on the risk evaluation
process which requires EPA to comprehensively evaluate a chemicals exposures and risks to
determine whether the chemical substance presents is an unreasonable risk of injury without
consideration of costs. Mrs. Barajas stated that the EPA must separately consider risk to
potentially exposed or susceptible subpopulations, or groups that are susceptible to greater
exposure and face greater risk of harm than the general population. TSCA also requires EPA to
consider risks across the chemical's lifecycle, including all known or foreseeable conditions. EPA
did not properly identify the subpopulations in its recent draft scope. She noted that the EPA

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ignored the heightened exposure of the communities located in the geographic proximity to
high volume chemical facilities, including the Greater Houston area; Port Arthur, Texas;
Mossville, Louisiana and neighboring towns and in the area known as Cancer Alley. EPA found
that methylene chloride does not present an unreasonable risk of injury to workers. Mrs.
Barajas stated that this is due to unfounded assumptions that workers will have access to well-
fitting personal protective equipment, or that a failure to consider the potential for an
individual to be exposed to multiple conditions of use. Mrs. Barajas says that the EPA found no
unreasonable risk when methylene chloride is manufactured and disposed of, ignoring the
exposure to dangerous levels of the chemical that communities surrounding manufacturing and
disposal sites such as Freeport, Texas and Geismar, Louisiana experience. Mrs. Barajas asks
NEJAC to advise EPA to identify all potentially exposed and susceptible subpopulations and
conduct separate analyses to determine if these chemicals pose an unreasonable risk to these
groups, and to consider all conditions that are used and the exposure pathways to the
chemicals must be evaluated. Finally, she states that EPA must refrain from excluding uses
based on the theory that is regulated by other laws, and to stop considering workers' use of
personal protective equipment at the risk evaluation stage.

Richard Moore wanted to remind the Council, in terms of TSCA, this isn't the first time that
we've heard public comment around this issue and in Jacksonville, Florida, we heard constant
and consistent testimony about this issue. Mr. Moore wants to encourage the Council to
consider taking this up and discuss it during the business session.

Lakendra Barajas noted her contact information is in the written comments and she would be
happy to help on any TSCA-related issue.

2.4 Juan Parras - Houston, Texas

Juan Parras wanted to call to the NEJAC's attention that even with the signing of the executive
order on the environmental justice in 1994, major cities like Houston and other cities have no
environmental justice policies. He felt the NEJAC needs to push back and make sure that
environmental justice policies are in place to protect communities who are severely impacted
by environmental justice. Mr. Parras notes that the executive order should be forced to address
those issues like ozone standards for the City of Houston. The City of Houston has not met the
ozone standards since they were created by OSHA. Procedures on how to bring those issues
and environmental justice policies into implementation in major cities is needed. He indicated
that the air standards with deadlines, should not be given the extensions because those
extensions continue to expose communities to ozone and air toxins by industries, especially in
the Houston area. He stated that if you are a community-based organization that helps EJ
groups under this current administration, that they are unlikely to deal with environmental
issues.

Richard Moore reminded the Council that some of the folks that are testifying for their
organizations have been testifying in front of the NEJAC since 1994, these are not newcomers.

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Mr. Moore indicated the one of the questions for the EPA Administrator from earlier about
support for the NEJAC Charter and unanswered, so NEJAC needs an update from the EPA and
the Administrator's office regarding the signing of the NEJAC charter.

2.5 Omar Muhammad - NEPA

Omar Muhammad spoke about the importance of NEPA and based on Administrator Wheeler's
comments, there is a huge disconnect between the administration, the realities effecting
environmental justice communities and the policy from this administration. He notes that NEPA
is a bedrock environmental policy that requires several agencies to evaluate the impact of local
decisions for identification of environmental concerns with impacts from economic, social and
health. Mr. Muhammad stated that changes to NEPA under this current administration allow
polluters to continue to pollute and it weakens the power of communities in the decision-
making process for increasing the comment period, and how projects and documents shared.
He continued to say it weakens transparency by allowing industry to conduct their own
environmental reviews and that many of the projects in environmental justice community
across the country trigger the NEPA process. He cites projects like highway construction and
expansion, port and terminal constructions, expansion bridge construction, intermodal facility
construction have a disproportionate impact in environmental justice communities particularly
black and brown communities. He stated that projects are sited in low-wealth and black and
brown communities that are impacted by multiple pollution burdens which cause high
incidence of asthma, cancer, and premature death. Mr. Muhammad said that the CEQ changes
to EPA eliminates consideration of cumulative impacts from past, present, and foreseeable
future impacts from a proposed project. It also requires community groups to provide expert
level comments and it doesn't list all possible impacts of a proposed project. The impacted
community forfeits its (trial) for recourse. Improvements to NEPA must include an increase in
the public comment period. The NEPA should require not just a risk assessment, but it should
include a health impact assessment. Mr. Muhammad would like the EPA to strongly consider
replicating and supporting an extension of the EPA Region 4 Environmental Justice Academy.
Replicating that academy across the agency will allow communities to have the training, the
technical support, and gain the experience to address concerns in their community.

Sacoby Wilson asked if Mr. Muhammad could give a little bit more background on how he
would use NEPA in Charleston? And, how these changes will prevent communities, who've
used NEPA as a way for mitigation, are going address it in the future?

Omar Muhammad indicated that the Low Country Alliance for Model Communities, is the very
first grassroots organization, not only in South Carolina, but in the country to successfully use
NEPA to mitigate adverse impact from two projects and what we have been able to do was
negotiate a community-based mitigation agreement with the South Carolina State Ports
Authority and Pan AM Railway. He noted that those two mitigations secured a total of $8
million under these negotiations, addressing systemic concerns in our community around
housing, economic development, education, and environmental justice. Mr. Muhammad says

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without NEPA, communities will not be able to secure the resources necessary to address
concerns, not only from the impacts of the project, but systemic concerns over our quality of
life of that community, particularly in low-wealth communities and black and brown
communities who have struggled with for generations.

2.6 Olga Naidenko - Environmental Working Group

Olga Naidenko stated she is here on behalf of the Environmental Working Group; a nonprofit
research and non-partisan organization. She has submitted written comments and peer
reviewed articles that she and several other scientists recently published. She wanted to
provide advice to the EPA about the reuse of contaminated sites and Superfund sites. She
mentioned that it is important to look at all contaminants that are potentially present; not just
those covered by previous statutes. Mrs. Naidenko mentioned that in her written comments
and submitted paper, that it brings immediate attention to the PFOS chemicals. These
fluorinated chemicals are found in many places like firefighting foams to food packaging, and as
a result, they have become widely spread contaminants nationwide and in our bodies, but
specifically for NEJAC, the difficulties of PFOS disposal now that communities across the country
and government agencies know how harmful those chemicals are have finally decided to
incinerate, so it may end up in landfills and this will have a particularly negative impact on
certain communities near those waste disposal sites. Mrs. Naidenko said that her written
comments provide specific recommendations, like requesting NEJAC to urge EPA to classify
most toxic PFOS chemicals as hazardous substances, because communities and agencies across
the country are looking at remediation and reuse of formerly contaminated sites. But it is
important to make sure that PFOS are not remediated in this process, otherwise a site is
cleared for reuse, and it turns out that remediation was incomplete, so these chemicals are
present and still are harmful to the communities and their health.

John Doyle asked if PFOS is in burning garbage, and what the effects of the smoke are and have
there been studies that looked at these effects?

Olga Naidenko said in the paper she submitted a group of scientists reviewed the available
information, identifying data gaps, after comprehensive review of publicly available literature,
and they did not find a single study that looked at the fate of PFOS compound in a real-life
incinerator. This means all of the municipal solid waste and the hazardous waste, even sewage-
like incinerators that the NEJAC members would know, that there is PFOS in all of the waste
states. PFOS have not been classified up until now as hazardous substances. All these
incinerator facilities have had no regulatory requirement to monitor what happens to PFOS.
Does it go into the air? Does it go into the ash? If that ash sent to the land fill or does it end up
going in groundwater? Our paper really brought the attention to the fact that regulators have
to say that the EPA should investigate the ways that waste streams of PFOS have been going to
those combustion facilities. It's not just a data gap, but a huge environmental justice oversight.

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Sylvia Orduno expressed her support for the work that scientists have been doing, especially to
pay more attention to where PFOS is located across the country and all of the different dangers
associated with it, especially in our drinking water sources and as you mentioned in these other
locations that we have to be aware of. Mrs. Orduno asked if there are any proposed language
that EWG has that could help us with being able to start making some of the proposals that are
missing in terms of the regulation? Are there studies that you think would be helpful if the EPA
could comment on or develop on its own? Can you make some recommendations that will be
helpful?

Olga Naidenko asked what is a good way to provide information to NEJAC? She stated that she
would like to have a few days to compile those resources together, and then email the
information to NEJAC coordinators or any other appropriate way to deliver those
recommendations? She said she would provide them a week from now.

2.7 Delmer Bennett - Mossville, Louisiana

Delmer Bennett expressed his concerns about the environmental problems in Mossville and
the continuing problem where the director's say that a lot of these things have been solved, but
there are no differences and things have been the same since the '70s. Mr. Bennett indicated
that he didn't know why a difference was determined because the plant never stopped doing
anything different. He says they didn't get the report pertaining to our neighborhood. When
Sasol came in, the NEJAC/EPA tried to address the environmental problems and the focus was
taken away from the real problem of the buyout of our land. The buyout of land was the
beginning of the injustice to the point that they treated us differently than how they treated
other people, even though they said that it was a voluntary buyout. And what they did was to
make it look like they did it right, because they got 80 percent of the people in our community
to sell out, not realizing that they were being cheated. The others were getting 3 or 4 times
more than what we were getting. There are records that show this, so we're looking at the
injustice and how this buyout killed the environmental movement in our neighborhood. This is
where we are now. Mr. Bennett said they are beginning to get representation from Tulane and
there is still a conflict even with that. So, this is where Mossville stands now.

Richard Moore stated that there is probably representation from Region 6, on this line too, and
he affirmed that the Mossville issue has been going on a long time. Mr. Moore noted that the
Mossville folks have been testifying in front of NEJAC since the beginning of NEJAC and that the
testimony is a reminder of the unjust relocation issue.

2.8 Stepford Frank - Mossville, Louisiana

Stepford Frank is a Mossville citizen in Calcasieu Parish. He stated that it was founded by
former slaves over 150 years ago and it is about six miles northwest of Lake Charles, near
Westlake. Mr. Frank expressed that the EPA defines fair treatment in its definition of
environmental justice as no one group of people should bear a disproportional burden of
environmental harms and risk. Mr. Frank commented that there are major concerns about air

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pollution and the lack of air monitoring in Mossville, as well as concerns that the Louisiana
Department of Environmental Quality LDEQ longstanding failures to address the issues. Satellite
and EPA data indicates that Mossville is a toxic air hotspot that has disproportionately created
suffering and negative consequences through decades of permits granted to the local
petrochemical facilities by the LDEQ, as defined by EPA's own definition of fair treatment. The
air in the area is the most toxic in Louisiana. It's in the top 1% of toxicity, and LDEQ has pursued
a systematic elimination of air monitoring in this area while concurrently permitting massive
increases in industrial emissions. In May 2014, LDEQ issued air permits that allowed Sasol, one
of the largest polluters in the world, to massively increase air emissions for its Cracker Project
expansion in Westlake. Westlake monitors measured ozone levels extremely close to the
current limits before Sasol's expansion, LDEQ received EPA's approval to discontinue this
monitor in October of 2014. The LDEQ justified the removal of the Westlake monitoring by
claiming that the readings were consistently lower than Vinton and Carlyss monitors which are
15 miles away. The comparison between these two monitoring data sets do not support this
conclusion. Mr. Frank believed that EPA should been made aware of this information, but the
EPA approval should not have been granted. In contrast to other criteria polluters, there is no
monitoring for carbon monoxide or CO anywhere in or near Lake Charles area. In fact, the only
CO monitors in the state are located over 100 miles away in Baton Rouge and New Orleans. The
lack of CO monitoring in Lake Charles area is very disturbing and shocking, given that Calcasieu
Parish has the most industrial CO emissions of any parish in Louisiana. In 2014, LDEQ
deactivated PM2.5 monitors at McNeese State University in Lake Charles, Louisiana, which is
subsequently closer to major sources of industrial PM2.5 emissions as compared to the Vinton
monitor site. Yet shockingly, in its approval to deactivate the McNeese monitor, the EPA
concluded that it supported the continued operation of the PM2.5 monitor at the Vinton site;
due to its proximity to the industrial sources in the area. Mr. Frank believes the EPA made a
mistake, since the Vinton PM2.5 monitor is located nowhere near the area's major industrial
sources, which is about 15 miles away. We request EPA's team provided oversight in this matter
to ensure that the LDEQ amends their air quality monitoring plan to rectify errors in its 2020
annual network assessment. The agency should amend its monitoring plan to generate National
Ambient Air Quality Standards comparable to data for PM2.5, ozone, and carbon monoxide
monitors in the Westlake area, ideally in the town of Mossville, and maintain its Ambient Air
Monitoring Network in accordance with 40 CFR Part 58.

2.9 Diana Burdette - Environmental racism - Lake County, Illinois.

Diana Burdette expressed that every morning they wake up to a layer of soot, oil, and grime on
their cars from the coal plant down the street. Last year, a chemical plant exploded, and her
community was told it was safe to breathe the air. Months later, they discovered that the state
sued the company due to negligence of chemical storage and exposing community members to
toxins. She indicated that the community has two facilities that emit ethylene oxide, a known
carcinogen, mutagen and volatile explosive. The community is working-class citizens, that were
unable to shelter when COVID 19 first began to spread, so sickness numbers spiked. The

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community is surrounded by toxic industry, accounting for 91% of all cases in our county.

What's more concerning is that 49 miles from us, another community that had been exposed to
ethylene oxide received urgent attention and their facility was shut down for months after the
news was exposed. What is the difference? The size of our bank accounts and the color of our
skin. Environmental racism has created a population with great disparities, where the size of
our bank accounts and the color of our skin dictates the urgency of our health. Mrs. Burdette
says that a predominantly black and brown essential working-class community was told that
they must endure, at reduced risk of cancer, so the more affluent communities can live
comfortably, they fell prey to the racist disparities that created 91% burden of COVID 19 cases.
She says they are surrounded by industry that destroys community health, making us more
susceptible to disease, and they are forced to expose their children, and the elderly so as to
ensure that others with affluence and born with the birthright to health can be comfortable.
Mrs. Burdette asked that the NEJAC continue to fight against this environmental racism,
because communities like ours, where the minority is the majority, must put up with the toxins
that other communities with bigger bank accounts don't have to.

Cheryl Johnson, People for Community Recovery (PCR), in Illinois said they are seeing this type of
pattern all the time and that they are fighting General Iron from moving from an affluent
neighborhood called Lincoln Park all the way down into our neighborhood with a scrap metal
yard. She says it is a discriminatory practice that it violates our civil rights. Mrs. Johnson wants
to make this known to everyone and is just not right, because these affluent communities don't
want the waste, they dump it in our community; this is a profile form of environmental racism.

Sylvia Orduno said that Mrs. Burdette is exactly the type of community resident that we need
to hear from and that it is hard to get through to people that are powerbrokers and power
makers. Mrs. Orduno said it would be helpful to know if Mrs. Burdette has reached out to
Region 5 EPA with any of the issues? Is there an opportunity to really elevate this in better way
on issues around environmental racism? Mrs. Orduno asks if they have had the chance to have
that conversation with the regional folks and are there any specific proposals to help elevate it
at NEJAC?

Diana Burdette responded that for 2 years they have been in direct communication with
Region 5 EPA. They have been able to pass significant legislation regarding ethylene oxide and
its emissions into our ambient air. They were told that they have hit a wall, while a more
affluent community has had their facility shut down, and they were told that the current
reduction levels will stay the same. Mrs. Burdette noted they have 2 facilities; a sterilization
facility and a manufacturing facility that is used as a secondary component. Our sterilization
facility, due to COVID, is being pushed forward to operate, and public relations are being
pushed back on the community to accept a minimal rate of cancerous exposures. The EPA has
not been forthcoming and said that they can only regulate what has been legislated and there is
no new legislation insight.

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Sylvia Orduno asked for any specific communications or legislation that they can point to, and if
there's anything specific that would be helpful that NEJAC could do to help elevate the issue,
please let us know.

2.10 Caroline Peters

Caroline Peters commented on the facts, which are not grievances, they are facts, is that
President Trump, four weeks ago during a media statement said that he would sign an affidavit
stating that no low-income housing will be built in suburbia. Now, you tell me if a president can
make that kind of statement to put suburbia's mind at ease, yet he will allow industries to come
and build a refinery next door to my house. It's inconceivable. Mrs. Peters noted it is the
climate that we're in right now, where we find ourselves today, referring to Floyd, George Floyd
and collectively from my community; we feel like industry has been leaning on our necks. Mrs.
Peters is asking NEJAC and the EPA to please pay full attention to what's going on in our
community and other low-income and indigent communities around the country, that they
have been talking to you for years, but talk is just what it is, and now, it's time to take action.

Richard Moore remarked that it was said that there were no more people living in Mossville,
but we know this is not true. He acknowledged that the community had been on these calls and
at the NEJAC meetings consistently reminding us that there is a community in Mossville. Mr.
Moore noted that we need to acknowledge the historically African American roots of Mossville.
Mr. Moore reminded the council members and listeners of the gentleman that came in from
South Africa and testified at the NEJAC Council about the facility, that folks have been testifying
exactly to what has been happening in Mossville is the same that is happening in South Africa.
He said that the NEJAC Council will do everything they can to continue to support Mossville.

Jacqueline Shirley noted that NEJAC talked about how systematic racism and other elements of
our society have arisen because of COVID, and how NEJAC appreciates these citizens to share
their stories of these terrible injustices, playing out in our communities of color and low-
economic status for centuries and decades. COVID has brought to light these inadequacies and
these disparities. She said that these issues validate how NEJAC can make this an opportunity to
make real change and create action for communities find themselves in now with COVID and
how it has enlightened many, and how Mr. Floyd's murder has enlightened many globally.

Karen Sprayberry asked why the Mossville community comes to us every public meeting? What
has the EPA done within the community to assist them, knowing EPA has Technical Assistance
Programs and collaborative problem-solving opportunities. Mrs. Sprayberry wanted to know if
any of that has been used with the Mossville community and what has been done in the
community by the state or the EPA?

Karen Martin noted that this is one of the action items to discuss from the February meeting
and NEJAC will talk more about it in the business meeting.

2.11 Cemelli De Aztlan - El Paso Equal Voice Network

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Cemelli De Aztlan stated she was speaking on behalf of El Paso Equal Voice Network and serves
as the new Network Weaver dedicated to working with and directing the community. On July
10th, 2020, the D.C. Circuit Court of Appeals ordered that the U.S. Environmental Protection
Agency take a closer look at ozone's malfunction in El Paso and if it exceeds safe levels. The
decision was issued in a response to a petition filed nearly two years ago. Familias Unidas del
Chamizal testified that the EPA had ignored clear evidence showing that El Paso was violating
the public health standard and the people who live in El Paso know the air is not safe and
getting worse over the years. Mrs. De Aztlan said last year that ozone levels show dangerous
levels in our community on seven different occasions. The EPA will have no choice but to
designate El Paso as violating the clean air standard and it will trigger a requirement for the
State of Texas to develop a plan to reduce pollution. She noted that the plan should include a
requirement to install additional emission controls for major polluters like Marathon Petroleum
Refinery, El Paso Electric, and the El Paso Independent School District Bowie High School bus
hub; which was recently built on campus. This campus serves the largest population of low-
income Spanish speaking immigrant children and the massive bus hub built this year replaced a
much-needed transportation opportunity in a community that deals with the worst air in the
city. Mrs. De Aztlan says there is no oversight to understand how the bus hub impacts the
community, and the school district refuses to evaluate the compound effects of buses that use
gas and diesel, combined with the already preexisting dangerous air quality. The reality is that
these buses do not reduce the toxins as they are compounded with the NAFTA, USMCA, and
the increase of international truck traffic using diesel and asbestos lined brake pads. Between
July and August, we have had 25 dangerous ozone days alone. This environment creates a
highly toxic mixture that threatens our children and the community. Mrs. De Aztlan called on
the EPA to pay attention to the importance of this environmental justice issue; air pollution
disproportionally hurts the community. She continued to say the worse of it is that the kids are
having trouble breathing and people are getting respiratory infections causing them to miss
work. The community is facing COVID 19 and leaders are needed to fight for clean air. Research
shows that ozone pollution causes 34 deaths in El Paso, 42 emergency room visits, and 46,000
missed workdays forcibly in El Paso every year. It is unacceptable that the communities are
sickened with this pollution. Mrs. De Aztlan says it's time to phase out fossil fuel and embrace
clean alternatives like solar powered public transportation and electric vehicles and it is unclear
when the EPA will begin implementing the court's order. The court's ruling was a great first step
towards cleaning up the air in the greater El Paso region, but we urgently ask NEJAC to move
forward because the community continues to be bombarded by the polluting industry,
exasperating an already dire situation and these industries have no accountability in our
community. She noted that they will continue to organize stronger protections against
dangerous air pollutions and the lack of oversight for toxic projects like the Bowie Bus Hub.

Richard Moore asked if there had been interaction with Region 6 on these issues that Mrs. De
Aztlan is referred to? Cemelli De Aztlan said they have talked to Region 6 a number of times
over the past few years and that they have notified them about the District Court of Appeals

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outcome and they have had meetings once a season. Richard Moore said NEJAC members need
to open up a dialogue with grassroots folks up and down the Mexico - US border, because it is
very important and that's why he asked a question around Region 6 and its office in El Paso.
Cemelli De Aztlan said her personal experience is as part of our research group, and not as a
team, and they will make sure to keep them updated and informed as they move forward.

Karen Sprayberry asked what the state can do, because the state should be aware that you're
getting ready to be in non-attainment. They should be bringing together some people and
trying to come up with a plan about how they're going to address the issue. One of the ways
that we've done in the past is to provide funding to help with school buses get retrofitted to
meet standards. Is any of that going on in the community?

Cemelli De Aztlan says she can't remember if there was a 5 or 10-year plan, but there are a lot
of health issues associated with the diesel and they're really pushing for green initiatives to
move towards better alternatives. The fact is that diesel buses compounded with the already
dire situation of the area makes thing worse, and nobody is evaluating the concerns between
the particulate matter and the ozone.

Richard Moore noted that the state agencies mentioned is very crucial, not only in Texas but
also in the New Mexico Environmental Department, because there is a point where Mexico,
Texas, and New Mexico come together.

Karen Sprayberry said in South Carolina, they have coordinated air collisions and they have
pulled together all the stakeholders, community people and EJ communities; trying to make a
stay in attainment the best way we can. It impacts the industry if they're in non-attainment and
it's going to cost them money down the road.

Cemelli De Aztlan said the air monitors are disappearing and many of the air monitors are gone
at the TCEQ. These air monitors are very important for the area and they support having them.

Aya Nagano asked if the Administration counts these increases in pollution as part of the
overall 7% drop in air pollution, especially since we have now heard several cases today about
increase in pollution. Ms. Nagano asked if they are seeing some increases in the amount of
pollutants that have been put out from industries during this time, because in LA County, they
regularly had smog alerts, and they could not go out because it was too dangerous to run
around because it led to exasperation or asthma problems. Communities of color are in danger
of having asthma and COVID and it needs to be added to the priority issues, especially at the
local level. Mrs. Nagano asked if they need to ask the local air quality regulators what they are
doing to ensure that they are not increasing or exacerbating the risk of people with asthma.
Can they get numbers from the Administration about what they are learning? Are they tracking
the amount of air pollution from March 1st?

Cemelli De Aztlan said El Paso has been in non-attainment and has a plan that was successfully
accomplished January of 2020, but, they continue move forward by adding more industry; it

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was found that they skewed the numbers and now the EPA is admitting that those numbers
were skewed and so they must retest. She said the issue she is concerned about is in retesting
or reviewing, there's not enough air monitors and there is not enough accountability. El Paso is
in the attainment plan, rather than creating a plan, an equitable plan for the community. It
seems that they discarded data and hid data that was necessary for an equitable plan.

Sacoby Wilson said there is a fundamental problem with the comments and the comments
from Wheeler around air quality and he thinks Ms. De Aztlan hit the issue on the head, that
there is not enough monitoring to actually know what's happening at site-specific communities
and at a very granular neighborhood level. The EPA monitoring network right now is
inappropriate. The dataset to answer these questions are not appropriate. This speaks to a
need for action, not just overhaul, but a more pointed approach. In the case of this pandemic,
what should've happened was enhanced monitoring and implemented to bring in additional
monitoring when you need to identify hotspots for asthma and COVID. Regulatory monitors
cannot answer these questions. They don't have right kind of data. It is exposure to
classification, so that's why you saw the Harvard study actually use county-level data to look at
morbidity rates, because they couldn't get data down to a neighborhood level because we
don't have monitors at the neighborhood level. Mr. Wilson says NEJAC must push back on
Wheeler when he comments about 7% reductions, when he's talking about the criteria for air
pollutants. NEJAC must ask him if the measuring criteria for air pollutants is in site-specific
communities? The answer will be no. Has the EPA done enhanced monitoring during COVID in
site-specific communities with hotspots of air pollution and COVID? The answer will be no. This
is a huge gap and this is the place where we need to be talking about enhanced monitoring, the
use of federal equipment at the monitors, low-cost sensors, more co-location, actually getting
better space resolved data to answer the question around hotspots and around asthma, around
COVID, and around those morbidity disparities. NEJAC must push back on Wheeler and the EPA
needs to answer the questions about the human impacts. Mr. Wheeler needs to answer
question about NEPA, and we need to ask these questions to Office of Civil Rights (OCR),
especially, what the OCR is doing when it comes to Title VI.

Richard Moore said this is one of the most important roles that the Inter-Agency Working
Group (EJIWG) needs to be involved in and in fact, we've heard testimony consistently around
cumulative impact, health disparities and many other issues about impacted communities. The
health agencies, the federal health agencies and their role with the IWG needs to be addressed
and formalized for transparency and proof that these issues are being collaborated on.

Na'Taki Osborne Jelks asked if there was any reduction in air pollutants during this time, during
this year and if any of it correlates to the short period of time that a lot of cities and states were
shut down; where people were sheltering in place. School buses weren't driving, so how much
of that is around a mobile source, coming from vehicles versus pollutants that may have be
coming from industry, as some questions to add to list for the Administrator.

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Karen Martin noted that they going to spend a few minutes seeing if we have any members of
the public on the line that would make a public comment, I know some folks were not on the
line when their name was called, so they are going to turn the call over to the operator and she
will give you instructions on how to unmute your line to speak.

2.12 Stephanie Herron - Air Monitoring

Stephanie Herron from the Environmental Justice Health Alliance for Chemical Policy Reform
(EJHA) agreed with Mr. Sacoby Wilson's comment about air monitoring and noted that the EJHA
along with all our partners have worked with some congressional champions on the Public
Health Air Quality Act, which aims to do some of those things that were mentioned. Ms. Herron
encourages NEJAC to check out the Public Health Air Quality Act and she wanted to echo the
request for NEJAC to pass a resolution about the NEPA rollbacks. She says that what the
Administrator says EPA's policy of non-enforcement during the height of the coronavirus
pandemic and respiratory virus is disproportionately ravaging communities of color; showing it
to be clearly environmental racism and it is outrageous. The Administrator said that no one was
allowed to increase their emissions during the enforcement discretion, and his statement is
extremely deceptive. EPA's non-enforcement policy was like the farmer telling the fox that the
hen house guard is on vacation. We may never know the full effect of EPA's policy because of
the lapse in monitoring, but the policy of giving polluters a free pass when there's an
emergency or a time of crisis is a pattern that must be addressed. During times like a pandemic
or a hurricane like Harvey, communities need more protection, but routinely receive less. Like
the commenter who spoke about TSCA, Mrs. Herron wanted to thank the NEJAC for the
excellent letter about ethylene oxide and to pass on the thanks of Mr. Williams from New
Castle, Delaware. That letter was further echoed and valued by the March report from EPA's
own Inspector General, and last week's letter which stated that EPA needed to take prompt
action to inform residents living near ethylene oxide-emitting facilities about the cancer risk
they face. Miss Dora asked me to pass on to you that cancer doesn't see black or white, but
unfortunately, it feels like EPA policies and enforcement do. The cities that the MOCM rule, the
Miscellaneous Organic Chemical Manufacturing Rule was significantly improved as a result of
the extensive community input, including that NEJAC letter. Unfortunately, the MOCM rule and
the ethylene production rule that EPA has published still includes exemptions for periods of
non-function or force majeure events. These kinds of exemptions need to be eliminated from
every rule because communities don't get to take a break from breathing when there is an
incident. EPA should not take a break from enforcement.

2.13 Yvette Arellano

Yvette Arellano said that it is inappropriate and disrespectful that the EPA has not stepped up
and supported the NEJAC in ways that other offices have, including state offices of a delay in
information and this is a pattern that has happened with NEJAC for years. It's time for EPA to
step up and provide those resources for advocates and communities. Mrs. Arellano noted that
Poly-America plastic plant erupted and continues to burn in Grand Prairie, Texas, near Dallas.

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The petrochemical oil and gas industry continued to expand in the state and throughout the
Gulf Coast, investing in over $203 billion in over 343 new chemical facilities and projects.
Therefore, we need to provide protections when it comes to NEPA. She is requesting support
from the NEJAC and the EPA to support bill H.R. 5986, drafted along with the Break Free from
Plastics Act, H.R. 5845. It is necessary that meetings get held and hosted by virtual platform
providing proper language access for all in a growing population with diverse populations with a
variety of languages.

2.14 Isabel Segarra Torino - Clean Air Act Section 179b waivers

Isabel Segarra Torino serves as Assistant County Attorney for Harris County, Texas. She offered
four points for discussion for the NEJAC; 1) a recommendation that NEJAC look at the Clean Air
Act Section 179b waivers, because the waivers allow states to blame their poor air quality on
international emissions and say they can do nothing about them. These kinds of waivers are
affecting Imperial County, California which is a migrant farmer community; San Antonio, Texas,
and El Paso, Texas; even as far as Baltimore, Maryland, states have tried to claim these waivers;
2) the commenter from El Paso spoke about Gould High School bus depot, there is a Title VI
complaint out and I encourage the NEJAC to find it, because it elaborates on the issues raised
by that commenter, so NEJAC could work with Region 6 to see some action on that civil rights
complaint; 3) the main obstacles for improving on the air quality monitoring network annual
revisions is the EPA does not treat those revisions as a federal rulemaking; 4) EPA should be
commended because they rejected TCEQ's faulty science on the ethylene oxide standard, in
part stating that the proposed standard and measures that TCEQ encouraged EPA to take were
not peer reviewed. Mrs. Torino noted that Harris County is the most populous county along the
Gulf Coast; home to the Houston Ship Channel and the Port of Houston, both supporting the
largest petrochemical complex in the nation. Harris County is also one of the most racially and
ethnically diverse places in the nation with over 100 languages spoken and a half of our 4.7
million residents speak another language, according to the U.S. Census Bureau. She further
explained that a fifth of the population identifies as black and two-fifths identify as Hispanic and
Latino. In Harris County, they face unique challenges when trying to address environmental
issues, both from industry and natural disasters. In 2019, the county responded to 2 explosions
and a chemical fire at the Exxon Baytown Petrochemical Complex, an explosion and chemical
fire at the KMCO Crosby facility and a multi-day chemical fire at the ITC Deer Park facility. Mrs.
Torino said the community lack zoning laws, and it is not uncommon to find residential areas at
the fence line of industrial facilities like in the East Harris County community of Manchester.
Many other communities are within one mile of (TRX) facilities like Pleasantville where retired
nurse Bridget Murray works with her group ACT, and Third Ward, where the late George Floyd
called home. Harris County is also hurricane and flood prone. Hurricane Harvey brought
devastation to many of our communities and our residents are still working to restore their
lives and homes. The county seeks new approaches to meet these ever-growing challenges. We
would like to hear from community-based groups and local governments that have successfully

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implemented policies and programs to address environmental justice issues in their
community.

2.15 Cynthia Peurifoy - COVID and Grants for Communities

Cynthia Peurifoy said she is pleased to see the competition come out for funding for states to
have the opportunities to address COVID in their communities, but she would like to see a
companion type of grant program for frontline communities who are struggling with
understanding what is happening in terms of environmental issues, fresh foods, and
understanding children's health issues. Ms. Peurifoy noted that NEJAC needs to look at
something that could help the communities on frontline more.

Na'Taki Osborne Jelks said that she thinks many of us, when the announcement came out, got
excited, until we read the fine print and found that the communities and community-based
groups were not eligible. Communities could try to partner with states and municipalities, but
she wants to echo the fact that direct support is needed in these communities.

Richard Moore wanted to note that Dr. McClain was unable to make it today but wanted to
read brief comments from Dr. McClain. Mr. Moore says Dr. McClain expressed these
sentiments, "good morning, beloved, thank you so much for your prayers and support during my
illness, and surgery last Friday. The surgery went well and because of your intensive lifting me
up to our Creator and to our ancestors, a miracle is happening right in the midst of a powerful
storm. I will always be grateful. I will always love with all my heart and soul. I am being renewed
for the next level of our movement and for liberation, divine love and peaceful planet. I love you.
Please continue to lift me up during my recovery as I would do for you all."

Karen Martin indicated that before closing comments she wanted to just open the lines to see
if any NEJAC members had any comments or reflections they wanted to share on what we've
heard in the public comments today.

Matthew Tejada wanted to advise NEJAC of a few things; 1) we've had a number of folks from
Mossville with us today and as Richard and Karen pointed out that we are going to be taking it
up tomorrow, as we look at the action items from the Jacksonville meeting. He wanted to make
sure folks are aware this past Friday in one of the information emails that Karen sent out we did
have a letter that was detailed from our Region 6 folks to Mr. and Mrs. Bennett. If NEJAC is
going to have that discussion tomorrow to please review the letter ahead of that discussion,
because there's a lot of very important information and context in it. In terms of EPA's Civil
Rights Office, which EPA has two Civil Rights offices now, to be clear. Mr. Tejada believes we are
talking about our external Civil Rights compliance office that handles Title VI of the Civil Rights
Act and I know that their leadership has already discussed with the office to come and engage
with the NEJAC again. It has been a couple years since we've had our Title VI leadership come
and engage with NEJAC, but there has been a lot of progress, and it is pretty brave thing to say
about Title VI at the EPA, but there has been a lot of progress, some that progress has been
referenced recently in publications regarding what has to happened with Title VI at the EPA.

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Mr. Tejada committed to making sure next time NEJAC convenes in person that a healthy
agenda item on it will engage with Lillian and Dorka and with other folks in the Title VI external
Civil Rights Office regarding what they have been doing the last two to three years. Mr. Tejada
suggested that a lot has happened that the NEJAC is not aware. Finally, when we get through
the time, we could have a little conversation about what we are doing with grants. This would
be a good time to do it. We did receive an addition to our budget in the Environmental Justice
Program last spring. It happened halfway through the fiscal year. One of the things we did was
to put out some money for states, tribes, local governments to work on Environmental Justice.
Mr. Tejada is hoping to finalize the selections for that grant competition and award them in the
next six to eight weeks. This is not the only thing we did and a lot of the decisions around the
grant money we received this past year was made specifically because we knew that money
was needed on the streets, and we chose the quickest way to get money out on the streets. A
grant competition for states, tribes and local government was one of the quickest ways. Mr.
Tejada said they doubled the amount of money that we are awarding this year to community-
based organizations through our collaborative problem-solving grants which we haven't
announced, we almost through the awarding process. We also went back to our small grant
competition from last year and we are able to award some of the first and second-runner up
from our small grant competition from last year, so we did push out more money to
community-based organizations even quicker. A larger amount of money was pushed out to
community organizations once we knew we had that budget. Of course we don't know for sure
if we will have the same level of funding in this coming fiscal year, it would be good to have a
conversation with the NEJAC on some of your thoughts about it because we need to start
planning how to solicit for that money starting in the fall. Any thoughts from NEJAC in the short
term would be helpful.

2.16 Christine Bennett - Mossville, LA

Christine Bennett from Mossville wanted to note that people are still living in Mossville, after
the buyout happened, they said we won't have to worry about them anymore. That's how they
made us feel because they took away the monitors. Mrs. Bennett says the EPA doesn't want to
have anything to do with the community, so they took our air monitors down and the EPA
doesn't want us to know about it. Mossville is a community were the people living there are
just waiting to die. I think that's very unfair and the question that was asked, so we ask if
anybody is doing anything about Mossville, because we are sitting ducks.

Richard Moore said this is disheartening to hear and I've got to give this Council its utmost
respect and say to everyone that participated in public comment that we take this very, very
serious. Mr. Moore said that environmental issue have become quite discouraging for a lot of
people throughout the country. In our last meeting in Florida, the NEJAC heard from a
delegation that came from Puerto Rico and talked about tensions in Puerto Rico. People
throughout this country take seriously the role of the NEJAC. Region 6 has said in the past there

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is nothing that they can do, but there's always something that somebody can do. He says that
NEJAC takes the issues presented today to the Council very, very seriously.

Peggy Anthony requested to have a copy of the Region 6 letter concerning the Mossville
community be shared with some of us from the Mossville community. Will you just share it with
the rest of the Council or are you able to share it with us?

Matthew Tejada stated that the letter is addressed to the Bennetts, to Delmer and Christine.
He wants to make sure that they approve, because it was addressed to them. I am 99% sure
that they would say okay, but I just want to check with them before I forward a letter.

Christine Bennett said this is our first-time hearing about the letter, so whatever we have we
will let the community know about it.

3.0 Closing Statements

Karen Martin thanked all the public commenters for taking their time to come and speak with
us today. As Richard said earlier, we do not take this for granted and we do appreciate you
taking the time to come today. I also want to thank the NEJAC members for joining and taking
the time out of their schedules and from the busy work that they are doing to spend time with
communities from around the country. Tomorrow we begin again, at 3:00 PM sharp we have a
lot of items that we need to discuss. We have a few action items from the Jacksonville meeting
to cover and then we will spend a little bit of time talking about this meeting to see if there are
any action items from this meeting.

Sacoby Wilson expressed that revisiting the extra funding program will make sure that it's
actually a community driven process, not for the development of the grant program, but to
make sure that it is actually getting to the folks who need the funding and to include technical
assistance. He noted that he talked about technical assistance before and increasing technical
assistance resources. He thinks it could be a way to get to action, but I think what was done was
a good idea. He doesn't think the process was beneficial to grassroots frontline events in the
communities. If the money is there next time put it into technical assistance and bring the
EJIWG help with facilitation.

Matthew Tejada said it would be a great idea to talk about this further and the EPA struggles
with trying to make sure we follow all the rules around grants while trying to target those
grants to hit the bulls-eye of the frontline community groups and the technical assistance side.

Sylvia Orduno thanked the communities that came forward and she is concerned about folks
that come forward and making effort to make public comments but for some reason are not
able to be on the call at this time. She thinks that they have found that even with folks with
best intentions and beliefs have basic ability to contribute to the public comment period, and
she thinks NEJAC we can do better to be more accessible and to make sure they can do better
outreach with communities.

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Mike Tilchin thanked all the members of NEJAC and he thinks this is a technically complicated
call to pull off. There's certainly room for improvement but while that is true, the work of the
OEJ staff, the operator, and the interpreter was good. I know when there was a problem, he
could feel they were solving this problem, by making sure that we could communicate in very
complex setting. NEJAC received substantive and thoughtful comments from the presenters
and a very significant environment threat on environmental justice communities.

Karen Martin indicated that this concludes our meeting for today. We will see you all at 3:00
PM tomorrow. Thank you.

NATIONAL ENVIRONMENTAL JUSTICE ADVISORY COUNCIL
Public Teleconference
August 20, 2020

MEETING SUMMARY
1.0 Welcome and Opening Remarks

Karen Martin stated she works at the EPA as the designated federal officer for the
National Environmental Justice Advisory Council and we're going to get our meeting
started. She noted they do have quorum to start the meeting. She also reminded the
NEJAC members to please state your name and your organization when you're making
comments today and remember to speak slowly. A separate phone line for Spanish
interpretation and (CART) services for the hearing impaired has been established. She
asked NEJAC members to please keep your phones muted if you're not speaking to cut
down on any background noise and turned the call over to the chair for opening remarks.

Richard Moore from Los Jardines Institute, The Gardens Institute in Albuquerque, New Mexico,
and he wanted to thank the staff, Carmen the operator, the interpreters and all of those that
joined the call yesterday, not only as the lines were opened, not only to make public comment,
but those that were sitting in and listening to the NEJAC. He noted that quorum is required
since we are Federal Advisory Committee under the FACA rules to the U.S. at the EPA. Mr.
Moore noted that the public comments were exceptional from the public the day before. He
also noted that there were grassroots environmental justice organizations from throughout the
country along with EPA staff and other federal agencies joined the call yesterday. He knows
that there were some questions that may come up today on this call-in regard to the
presentation by the Administrator. He mentioned that he has discussed enforcement actions
with EPA leadership in the past and those comments that were made particularly around the
enforcement are important, particularly at this moment in history, as the virus is impacting our
communities. Mr. Moore said that the discussions about voluntarily enforcement actions were

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much of the comments they heard, not only from Jacksonville, Florida, but in previous NEJAC
meetings are volunteer enforcement actions that many of the industries are voluntarily
reporting. This Council is very aware that this isn't necessarily the case sometimes or from an
environmental and economic justice standpoint.

Sylvia Orduno mentioned a special appreciation to folks who really worked hard to make sure
we can get the Administrator on the call and she is interested in what we're going to be
discussing relative to many of the points from Jacksonville and the public comments made.

Michael Tilchin; indicated that the Council will want to explore issues raised by the
Administrator's speech, and that it is the foundation of a productive dialogue for the business
meeting.

Matthew Tejada noted that NEJAC has a lot of important business to get to today and he
knows folks are ready to dig in, and hear an update on the Superfund working group's progress,
talk about some of the steps we heard yesterday, and also handle the business we have left
over from our Jacksonville meeting a few months ago.

2.0 Superfund Task Force Update

Michael Tilchin presented an update report from the Superfund Task Force working group, it is
an overview presentation, and part of that presentation, they looked forward to engaging
dialogue with NEJAC. The co-chair, Kelly Wright, kicked-off the presentation, running through
an overview of the levels of strategies and recommendations, and then Tai Lung wrapped up
with the path forward.

Kelly Wright with the Shoshone-Bannock Tribes in Idaho, stated that in 2018 the NEJAC
received the charge from the EPA Superfund Task Force to help integrate environmental justice
into the cleanup and redevelopment of Superfund and other contaminated tribes across the
U.S. The overall goal of the charge is to provide recommendations to the EPA administrator
that will help identify barriers, solutions and best practices for improving our ability to achieve
cleanups of Superfund sites quickly with better outcomes for local communities. The
development of the NEJAC's strategy and recommendations for the program was guided by the
vision of the future for the Superfund Program. EPA Superfund Program more effectively
fulfilled its core mission of protecting human health and the environment by serving as a
change agent, driving community engagement and asset creation. The foundation for success
in this enhanced mission is to establish a community-driven in-state vision early on and
throughout the Superfund process from planning, remediation to reuse and development. The
EPA Superfund Program action to achieve this vision is dependent on EPA's approach to
decision-making, guidance, training, community support through technical assistance, and
financial resources, and adaptive innovative programming.

Michael Tilchin said at the overview level and looking at the process, that they have a diverse,
energized, hard-working group from the kind of wide range of stakeholders who helped

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develop the strategies and recommendations. One of the things that Tai is going to focus on is
the case studies that are going to be a very substantive part of this report in its final form. He
noted they are looking forward to releasing the next version of the report in a relatively short
period of time and looking forward to getting a detailed input from other NEJAC members.
Specifically, they want to hear from NEJAC on important aspects of the Superfund program and
its impacts on environmental justice community that the workgroup may have missed. We
assume that it is inevitable that constructive input can identify those areas and they are
interested in hearing from NEJAC's perspective. Mr. Tilchin noted the recommendations run
the gamut that EPA is currently part of in the Superfund Program, but there are issues related
to both how they deeply penetrated the program, how consistently they are applied in the
program, and if there are areas where they can be expanded productively. There are some
recommendations that are significant innovations to the program that can be handled within
the existing structure of the Superfund Program. All the resources are in place and all of the
internal institutions within Superfund are in place, but there are things the Superfund can do to
elevate the program. At the far end of the spectrum, there are several significant new
programs that we would like for EPA to institute, whether it's something that happens at the
Superfund level or agency-wide level that will benefit Superfund and raise EPA's game overall.
From an implementation perspective, that's a bigger deal. Mr. Tilchin said they have got a clear
direction to go to interpret that wasn't done artificially well, don't constrain yourself artificially
or not within what the Superfund currently does, it's about ways to break those boundaries to
really raise the level of performance of Superfund. You'll see several recommendations that
focus in that area that have transformative impact on environmental justice communities and
the Superfund Program as a whole. He said their first working strategy is to implement a more
intensive community engagement practices at Superfund sites. This is something that
Superfund does and some of the more transformative things they would like to see within that
program is the establishment of an ombudsperson role at sites with a significant level of liaison
responsibilities between the communities, helping them raise their voice in decision-making.
Another thing we think has withered is a deeper productive engagement between EPA and the
Agency for Toxic Substances and Disease Registry, so in Strategy 2, there is opportunity to
elevate, update, and improve the guidance within the program to help with quality and
consistency, because there are consistency issues. Some of the things that are under this
guidance and sort of guidance-focused strategy are to look at the limitations by guidance.
Speaking of breaking barriers under - one of the directors that says, "Superfund can only go so
far in terms of what its responsibilities are and can't really move beyond what's called
betterment within communitiesMr. Tilchin thinks this needs to be revisited, because it puts in
a barrier on what Superfund can do in the community and we're going to explore ways to see if
we can break those habits. Mr. Tilchin says another significant step forward is looking at the
consistency issue, we think that there's a real opportunity to improve both quality and
consistency and innovation by establishing formal communities of practice among the remedial
project managers working on sites with similar issues. In Strategy 3, a focus on issues related to
training, training both within the impacted communities and training within EPA, the level of

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training within the program is to establish a formal kind of investment in specific professional
trainers to elevate the way in which information is communicated, both in the content and
delivery. This doesn't exist within the program now. The other recommendation is more
community involvement on program initiatives and from the branches to be better involved.
He said they have gotten outstanding feedback from branches on the report, very helpful and a
great deal of interest. In Strategy 4, they get to the foundational aspects of the report by
elevating the future and use planning as a core element of the Superfund process, getting back
to expanding the role of Superfund, it is this strategy recommendation to establish new
programs that were recognized. They are looking into a couple of different areas, one of them
being essentially borrowing from something that exists within the Brownfield Program, and it's
called the Brownfield Area-Wide Planning Program. They think the model can be implemented
in Superfund and there are significant details in the gliding elements of that program, or what
our vision is for that program can be. Mr. Tilchin noted they would like to see the Superfund
redevelopment become successful. It's a program that can benefit from being expanded and
really penetrate the program and on a larger number of sites. In Strategy 5, they refer to this as
the culture shift within Superfund, leveraging the creation of assets for communities as an
outcome of the cleanup, and having that become a catalyst for innovation and improving the
cleanup program itself. Several of these new things are not being done within the program;
establishing an innovation incubator, so remedial project managers have a group effort they
can turn to when they're trying to promote this redevelopment and reuse at sites. A stronger
connection to the technology expertise or remediation technology expertise through a direct
link to the technology innovation and field services division, directly linking RPMs in that
division; broad penetration on a large number of sites event of health impact assessments, and
reinstituting the community action for renewed environment. This agency level program is very
productive. In Strategy 6, a very critical strategy focuses on equity. It revolves around
establishing a new program within EPA, first as a pilot, an equity pilot program for impacted
communities. When you read the report, you'll see that the program is described in substantial
detail. Taking that equity lens, filtering it through all aspects of delivery of the program,
including where money the goes. We think if the community is given the opportunity to both
deliver services and benefit from the services, which doesn't happen anywhere near to the
degree that it can and should within the program. It is important to reestablish some very clear
expectations about what will be expected to be measured. In Strategy 7, you will see in terms
of acreage, most of the pages of the report, Strategy 7 is a deep dive into both the specific
needs and what resources are going to impacted communities. A lot of that has to with how
the money flows and the coordination in the EPA, because there are multiple programs within
EPA that have a community focus. Mr. Tilchin said they have several recommendations about
how to improve the synergy across the federal family, there are multiple departments and
agencies that are working on similar things, but they're not as coordinated as they need to be.
He suggested that bringing the resources and the programs together in a much more
coordinated manner; will benefit the environmental justice communities with Superfund sites
in the process. There are several recommendations for EPA to take a more active role in

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helping communities get access to funding outside of EPA, serving in an advisory capacity to
help those impacted communities get access to philanthropic sources, other sources of funding
that can help meet the defined needs of the community. Mr. Tilchin said this is where they are
in terms of the recommendations, a broad mix and they have identified synergies that speak to
the whole and then the sum of the individual parts through individual recommendations to
really elevate the program particularly for EJ communities.

Tai Lung said the timeline for the final report planning was to have all of this completed by the
fall, but the timeline has been pushed back to share it with the NEJAC to get more detailed
comments. Mr. Lung said they would give it at least a month in advance to provide those more
detailed comments and hope to get feedback back before the holidays sometime in December.
The report will be revised based on the feedback received, and we hope to have a final version
of the report at the next NEJAC public meeting.

Michael Tilchin said this completes a quick run-through from where they are and they eagerly
awaiting any comments, questions, concerns about what they have done to date, and where
they are going. He opens the floor for comments and questions.

Karen Martin noted that she gave the members instructions earlier on how to indicate that
they wanted to speak, if they have a question or comment at this point. Are there any
questions or comments for Mike, Tai and Kelly?

Sylvia Orduno expressed her admiration for the summary and recommendations. She asked
for more in-depth information on the recommendations that are about specific barriers. She
thinks that folks from the different communities see this structural injustice, the racial inequity,
the longstanding environmental justice problems and other issues that are really calling for
attention and for real change. She wanted to hear more about barriers specific to the structural
injustice, so that they are being named in the report, but also so that no one is walking past
them in these series of recommendations. Mrs. Orduno said it is important to call out
problems; making sure that everything like basic communication gets down to the local level to
impacted residents specifically, or technology barriers that continue to happen because of lack
of active feedback. She thinks locally impacted communities say, "This is what we need,"
because they don't always align with what it is that the state, or even local, or EPA people that
are part of the strategy plan is doing for the remediation relief that is more equity-based. She
thinks even with that, this is still one of the things that is irregular and requires immediate
relief. Before folks even get started, what can you do right now, in terms of providing some
immediate relief while the long-term cleanup takes place?

Kelly Wright; said the barriers in many EJ communities tie back to getting some consistency
within EPA; this is based on personal experience, headquarters does one thing, they issue
certain orders and then it's taken back to each of the different regional offices, and then they
turn around and try to implement it themselves. What we are trying to do is to get one of our
keywords "consistency," implemented. They see that getting people involved in the process

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upfront, at the very beginning, so that they're working through the entire process, improves
consistency at Superfund sites. He said that some of the community members have
educational barriers, so using terms like "cleanup," creates inconsistency and caused confusion
in the community, because it has not been clearly defined. He said if they can get the
community involved from the start to finish, it gives ownership in the process, it is one of the
reasons he became part of the workgroup. Mr. Wright is not saying the EPA is all negative, they
do have some positive things, but they must identify the strengths and the weaknesses, by
focusing on weaknesses and finding ways to improve them.

Michael Tilchin said the report allows us to dig a little deeper and be more descriptive about
the concerns because it is the equity pilot that is a significant shift in the criteria used for EPA
grants; focusing on communities with the greatest need and actually bringing in a specific
quantitative equity dimension to EPA budgeting, making sure that funds are reaching the
communities with the greatest need. The immediate relief issue has not been fully explored in
much detail, but we're certainly are going to give that additional consideration and make sure
we capture the intent. Sylvia Orduno indicated a need to follow up on the written
recommendations and drive home this point specific immediate actions or short-term actions
are needed. They could be as simple as talking to local community who might say, "we need
three new air monitors," than give them three new air monitors. When they say, "We need new
plastic sheeting on our windows to keep out the air pollution," than give them new sheeting on
the windows immediately. She noted that these are simple things to do, and while the rest of
the remediation process takes place, then these needs should be met upfront, this shows that
there is something demonstrably different, and that they are seriously being taken in as
partners. Mrs. Orduno said it has to be part of how they get community support and buy-in,
but it also demonstrates that this is not business as usual. Michael Tilchin said that one area
they have tackled early is substantive meaningful engagement with the community that really
influences the actions taken. He thinks that this is part of what Mrs. Orduno was talking about.
Mr. Tilchin said he thinks this is extremely important in the immediacy, and it is a matter of
urgency for our communities who been impacted for years by decades of contamination from
these sites.

Hermila Trevino-Sauceda asked for more of an explanation about cleanup, not being just like
what we do at home in terms of just taking care of whatever you see. She noted she hasn't had
the opportunity to participate in the Superfund meetings and she is always going to be
concerned about any Superfund, anywhere EPA or any federal agency or state agency were
responding to situations like this. What really happens to the people when there is a whole
process of bureaucracy whenever a complaint is filed? People need to get a response, if people
are saying, "We need this," let's make sure that there's a quick response. Meanwhile, the
bureaucracy finds that cleanup is real and not an artificial cleanup, so we need to follow up with
how our community has lost so many human beings, because promises are made but not
followed up immediately. And, if it is not going to happen right away, then what will happen in
the meantime? She says we need to follow up on what is the "real" need in the community.

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Michael Tilchin said the importance of taking immediate actions that are just solely and
completely based in the needs and the concerns of the community is an oversimplification, but
may not really be part of the significant or the long-term cleanup construction project, but still
are related to quality of life. To reduce exposure to contaminants for the communities means
immediate action needs to be taken and, in some cases, this is extraordinarily important, and it
is simple and easy to do. They are going to examine the normal ways of doing businesses in the
program.

Ayako Nagano asked to have recommendation 5.3, regarding health impact assessment, be
explained more about what it entails, and what process we should go through to make that
assessment. She asked if they are considering who is not at the table in this planning process
and if they are able to talk to people on the ground at Superfund sites that have worked with
this challenging situation to get their feedback? Who have you been able to get feedback from
in general?

Michael Tilchin indicated that the workgroup has several members who are defining the
process for health impact assessment. It has been implemented at some sites and it is not
simply a risk assessment. It is a deeper dive engaging the community members on the whole
range of threats to health that are taking place in a community. It is a quantitative assessment
that looks at threats like exposure to toxic chemicals from the site and other discharges. It is a
deep dive into the concerns from the community and then a preparation of the series of
recommendations to address the environmental threats, it also addresses issues related to
socio-economic well-being and impact on the community's health. Coming out with a
structured report makes sure that the report's long-term actions are built into the report. All
sites get a risk assessment, but a limited number of sites have health impact assessment which
is a more comprehensive view of health issues impacting the communities, and then we take
this comprehensive information in a structured format and use that as a tool to develop a long-
term remedy.

Kelly Wright noted that they looked at risk assessments which has no standard protocol to
utilize evenly across the board, so they look at things in different terms than what EPA does.
The risk assessments are done on a 50 to 100-year basis. He says they must look at least seven
generations. The other part of that risk assessment they value is the micro-organisms as equal
in life and science doesn't always necessarily address that. Mr. Wright noted that it is a good
area where many cultures have differences and we need some variability. There shouldn't be
just a standard, off-the-shelf way to try to fit everything into one type of document.

Michael Tilchin; said they didn't go as deep in terms where the workgroup members were
looking at specific sites' and the needs of community members from those specific sites on a
workgroup. He said they have a lot of outstanding people on the workgroup, including several
people that are involved in the grassroots environment including equity issues, to include
membership from Superfund communities. He thinks it is helpful to provide a profile of who's

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participating in the workgroup, because they have a broad range, including a lot of community
activists working at the grassroots level.

Kelly Wright explained that they went and toured a Superfund site in Philadelphia and talked to
the community members involved and Region 3 did a great job of putting that together for us.
Mr. Wright said he comes from Region 10 and there were some major discrepancies or
differences between the Region 10 and Region 3. Therefore, he will go back to his comment
before, headquarters make the rules and regulations, but the actual implementation is done in
the regional offices, and so they want to see better consistency.

Sandra Whitehead, from George Washington University Department of Planning, said a
systematic tool used to work with communities to identify their concerns is in need. In the case
of Superfund sites, it gives community members an opportunity to raise other health and safety
concerns that can be addressed through this process. It's very collaborative and it is a way to
give a voice to the community in the Superfund redevelopment process. She recommended
this school thought because it addresses health and equity, and because there aren't a lot of
other tools that have been used in this realm of Superfund redevelopment to accomplish it.
The question of whether health impact assessments could address some of our PFOA
contamination questions, certainly, this process can be used to work with the community to
identify what the health impacts are of exposure both long term and short term, and to use the
process as a way for the community to make recommendations for cleanup and to address
their concerns. She thinks that it is a very flexible tool that is focused first and foremost on the
health of the community and giving them voice to participate in the process more broadly. Dr.
Wilson is raising another point that health impact assessments can be rapid, that can take as
little as two weeks, or they can be comprehensive which can take about a year. Either way,
what you come out with is a very good baseline of where your community is health-wise and a
prediction of what the impact will be, given different scenarios for redevelopment. It is a great
planning tool and it's a great collaborative tool.

Richard Moore said a risk analysis has never really worked for grassroots communities because
of the risks that are taking place and the community has testified repeatedly at previous NEJAC
meetings that they question the risk analysis concept. These reports are done while exchanging
with other entities and are dealing with sovereign governments in terms of tribes and the
question of sovereignty when it comes to native and indigenous folks. The equity analysis or an
equity lens is crucial to this overall report and this sort of recommendation. He thinks the
teams need to touch on it early, meaning not after the decisions have been made. It means
bringing the community to the table in the beginning. If you are going to bring early and
meaningful involvement, then it's not necessarily to operate in an advisory capacity on the part
of the community, because the community should be heard and the recommendations that the
community makes should be taken very seriously. There are several barriers, and these are just
a few. The other barrier is the language barrier. It is connected to early and meaningful
involvement. Language and the translation of materials must be looked at. Another barrier is

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the technical assistance grants that were open to community members to apply for, that is also
connected to the early and meaningful involvement. Many of the grassroots folks are
extremely educated on the impacts that their community are facing from a health standpoint.
Mr. Moore noted that he uses the word "community impact analysis," because from a
community perspective, community impact analysis is better understood than solely using a
risk analysis. There's a lot of mistrust for a lot of good reasons from the community, even what
the EPA is doing by putting technical information on the table. There should be technical
assistance grants given to grassroots folks. The last one is important in terms of the cleanup.
The community gets concerned in many cases because EPA does not entail if the cleanup they
are conducting is done in a healthy and safe way. The community worries if they are going to be
further impacted outside of initial impacts. Lastly, an avenue around economic development
and mechanisms should be in place, and include employment opportunities for young people,
but there are no employment opportunities and training for community members to work on
cleanup sites.

Michael Tilchin noted that Mr. Moore's comments are helpful to understand. In some cases, it
was very uplifting, because we're attacking that issue in the report, but we can do more. And
then in some cases, we may have missed the mark. What a great comment. So extremely
constructive and helpful.

Tai Lung noted that the workgroup is happy to take any comments right now because if you
give us comments earlier in the development of the plan, it's going to be easier for us to try to
include them. He asked NEJAC to provide comments over the next couple of weeks, then we
can incorporate that into the draft that you're going to see in October. October 1st is where
you're going to have the full description of what that health impact assessment is rather than
just this one-line summary of better incorporating HIAs into the work of Superfund. Mr. Lung
noted that the reason he gave this initial list is so that you could see the direction that we're
going, but if you see some big glaring issues that are missing from the report, please let us
know now because that's going to help us build that in so that the next time you see this report
it will have that those issues incorporated.

Karen Martin stated that the next agenda item is the NEJAC business meeting. NEJAC will
spend the rest of the meeting discussing our business meeting action items from the meeting in
Florida and then any other action items that may have come out of the discussion from
yesterday.

3.0 Discussing the business meeting action items from meeting in Jacksonville,
Florida

Sylvia Orduno indicated that the attachments of information from Karen is a summary of the
action items list from February 2020 public meeting. You will see a list of items that are
prioritized action items and next to that is potential actions for NEJAC to take, and then the
previous NEJAC/EPA action on the topic. There are 20 items listed, but it's the first nine that

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we're likely going to focus on. We wanted to make sure that we've got a list of the other items
that have come up from different NEJAC members and public comments. She said she is going
to read through the list of nine items, so everyone is familiar with them. The first item is farm
worker concerns and pesticides. The next is the Yazoo River flooding issue. Number three, risk
management/slash chemical disaster safety rule. Number four NEPA. Number five relocation,
namely Mossville, Louisiana. Number six is water in Flint, Michigan, but also connected with
the NEJAC water infrastructure report. Number seven Superfund Task Force. Number eight
miscellaneous organic chemical manufacturing and ethylene oxide. And number nine is
monitoring and screening. We wanted to see what NEJAC members are thinking in terms of
how to proceed with next steps around these items. We need to discuss the type of actions
that we would want to take and try to at least begin. These might look like initial drafts and
letters, if that is one of the objectives that NEJAC members have, requesting additional
information from EPA's staff or department, and also propose any kind of other future like
group meetings or information gathering that we need to have from other sources. You will see
that there are other things that are part of the list of 20, but these first nine are understood to
be part of the prioritized actions. If there are anything folks believe that are not on this list, we
can see about how to address that during this conversation. Aya also asked if there's any time
to get feedback on the legal angle for the Superfund site in Jacksonville. We should add that to
the list as something to discuss after we get to the nine.

3.1 Farmworkers

Sylvia Orduno addressed the farm worker concerns and pesticides, saying that some specific
recommendations in terms of what they're asking from NEJAC and from the EPA, but they need
to get some clarification and some feedback from NEJAC members about what it is that they
want to do next. Currently, we are considering a request for an EPA briefing about the issues
around pesticides effecting farm workers. Other actions to take range from writing a
recommendation letter to the EPA on this topic about the necessary types of changes to
protect farm workers against pesticides. The presentation from the farm workers had a list of
flagged pesticides that they wanted to see be abandoned. She asked for feedback from NEJAC
members about these two actions.

Hermila Trevino-Sauceda noted that a letter was sent in 2017, and a response a year later
regarding the letter in terms of the request. The letter came from our counsel requesting the
importance of the (WPS), the working protections numbers. The testimonies that these women
provided in February is an example of thousands of workers are going through daily. California
has many regulations, more than the federal government. And we still have many people
exposed to poison. The issue is not clear if workers have a representative, and what can they
do if they get poisoned? What can they do if they don't want to be poisoned? The workers are
told constantly from many companies and crew leaders, "don't worry, it's medicine sprayed on
the plants, so that there's no plague or there's no insects or no fungus." When workers are told
that it is medicine, then people don't think it's toxic. I'm just giving an example of things in

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terms of going back to February. There were two powerful testimonies. It just brought back
memories of how my family, the people that I've worked with, the people that I've known, the
people that I personally work with in the fields and the people that we continuously worked for
more than 40 years are going through the same situation. We were supposed to have a
meeting with the Administrator, but because of COVID we've ended up not having it. The
Administrator was not willing to have more than one hour of conversation. The issues needed
more than five minutes of communication and sharing of how hard it is for people right now,
because of COVID we are called essential workers. Farm workers have always been essential,
because we know that if we don't plant and the harvesting doesn't get done, then all the fruits
and vegetables will not get picked and the rest of the society will not be able to live. Farm
workers lives are invisible, and we continue to be invisible to the rest of society. We're called
essential because we need to work to make sure that people are going to have food on their
tables, but problem is that they are not treated as essential workers. We have been getting
calls not only from California, but from different states and we're represented in 11 different
states in the United States, not only dealing with what's going on with COVID, that has
increased the risks of our people in our communities, but we have been getting complaints
from people worried about not being able to speak out because they might get fired. I want to
reiterate how important it is that the NEJAC I keeps pushing for making sure that EPA brings
more immediate attention to the farm worker issues. In 2017 a letter was sent and because
there was a rollback, now little by little that has been given back. These workers don't even
know about these regulations. Why? Because they are not written in the cultural context of
the community. Why? Because we have no resources. I want to end by saying we need to
continue to support farm workers. In February, I really felt that the Council was not only feeling
it but understood how much harm there has been in our community. I don't know how much
more I can say about how importance it is for us to keep bringing attention to this and making
sure that EPA is aware. I know EPA is trying their best, but that local district offices are
responding slowly and taking their time. We need the same kind of response as in any kind of
poisoned communities that are right next to the fields or workers that are being pressured to
work while the spraying is happening. We have women that are going blind. We have workers
that are having a lot of different kind of health issues, because these pesticide poisonings keep
happening.

Sylvia Orduno noted that these issues of structural injustice and racial inequity have allowed
for no exemptions for generations of agricultural workers and how they're treated unfairly in
this country. We should not continue to set aside pesticide issues. NEJAC can have a say as to
not allowing them to be exempted from these health and safety protections. This is something
NEJAC must prioritize. Another recommendation is that we create a work group and schedule
meetings with the EPA program.

Richard Moore said this is another example of an issue that has been testified repeatedly from
our farm worker communities in many NEJAC public comment sessions. The rollbacks and
cutbacks that are taking place effect farm worker women and men on a day-to-day basis and it

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is extremely important that this issue keeps getting brought up, because the rollbacks and
cutbacks pertain to the specific pesticides that effect farm workers.

Sylvia Orduno asked the Council for consensus on what they want to do in terms of potential
actions. What actions can we take for requesting an EPA briefing, creating a work group, or
scheduling meeting with that EPA program? Should we draft a recommendation letter to the
EPA on the topic? We have drafted a letter before, we've drafted a couple of letters, at least, in
'17 and '18. And that might not be the avenue, in my opinion. I guess I'm trying to find out
what it is that NEJAC members want to do in terms of making recommendations that we can
move forward on next.

Karen Sprayberry thinks a good recommendation might be to ask the EPA to form a farm
workers stakeholder group and pull together all the various groups together and start having a
dialogue about some of the issues and how they can be addressed.

Karen Martin noted that all the information being discussed is in the meeting summary from
the February meeting. And, she has shared the new link for that information in the e-mail sent
out with the teleconference information. This is not new information, it's information that was
raised during the February meeting. Benjamin Paul from Kettering University, Flint, Michigan,
has a general question about the letters. He noticed that the responses are minimal and often
do not address the specific concerns and recommendations. His question is how typical it is to
get a more substantive response. And in the absence of such a response, what the value of
writing this sort of a letter would be. Karen Martin noted that a couple comments about the
EPA letter responses, that what happens is that the NEJAC develops a letter with
recommendations and submits it to the Administrator. Then NEJAC typically gets a response
back from the Administrator saying thank you for providing comments and the program office
will provide a more detailed response on the issue. If you are looking at something that does
not have a more detailed response, we need to go back to the program and get an update on
where we are with those recommendations that were made to the program.

Benjamin Pauli indicated that is part of what I was wondering, but also he was wondering if
there are cases where it just stops with that, sort of an acknowledgement on the part of the
agency, and then it really doesn't go any further.

Sylvia Orduno noted that NEJAC has an hour and 20 minutes left for the rest of this discussion
to consider, and what we heard yesterday in the public comments. They still have eight more
items at least to move through. For this item we have got a recommendation, that when there
is a lack of response from the EPA administration, there is an effort to go back to that program
to seek more information. She says another recommendation that we could do in terms of
potential action to create a work group and to schedule a meeting with the EPA program is to
include investigating the creation of a farm worker stakeholders' group. Is this something that
NEJAC members feel comfortable with and advancing as opposed to drafting another letter at
this time?

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Deborah Markowitz indicated her support for this important issue and moving forward on it.

Karen Sprayberry recommended bringing together the various stakeholders like OSHA into the
process. Worker Protection Standards are also part of EPA. It was approved by EPA.

Sylvia Orduno noted that no abstentions voiced, and consensus has been reached, NEJAC will
move forward with the recommendation.

3.2 Yazoo River Flooding

Sylvia Orduno started to address the Yazoo River flooding issue. A group presented some
information, through the public comments in Jacksonville. One of the recommendations is that
we table this action until current activities are concluded. There are actions taking place from
the local to the federal level in terms of interveners. Another action is to request an EPA
briefing. A third action is to draft a letter of recommendation to the EPA on the topic. And it
didn't seem that we quite had consensus. Karen, if you can maybe give us the latest as you are
aware.

Karen Martin indicated that she has shared a federal register notice for supplemental (EIS) with
NEJAC members that was published since the last meeting. The Army Corps and the EPA are
working on a new (EIS) for this particular project, so the recommendation to the Council is to
not take any action on this item until the outcome from the new actions are in place.

Michael Tilchin said that many folks are feeling impassioned that the NEJAC needs to respond
in some way to this, because one of the concerns was whether any type of response from
NEJAC would add to the complications of what is happening with the variety of different actors
who are participating in address the issue. He thinks immediate action will add complications,
but in no way are we saying that NEJAC should not respond. He thinks we should try to figure
out if NEJAC members are feeling if we should respond at this time or another time.

Ayako Nagano asked if it is customary to give the community an update before the EIS report?
Are we going to wait until the (EIS) report or, at least, for the people who came to Jacksonville
just to give them any kind of response at this point? Would that be hard to do or is that
something you do? I'm not sure.

Karen Martin replied the NEJAC can definitely do a response letter back to the community just
to let them know that NEJAC is paying attention to the issue and to let the community know
what our plan is moving forward.

Virginia King said it is fine getting back to them. I'm sure that they would love to know what
we've done since our meeting in Jacksonville. When the (EIS) statement comes out in October,
at the very least the committee, the NEJAC, should review it and potentially submit comments
to ensure that the environmental justice aspect of (EIS) is robust.

Sylvia Orduno said a review in October after the release and see what they have to say and, in
the meantime, send something that says that we are paying attention and that NEJAC will table

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this until we learn more it in October. Mrs. Orduno noted that no abstentions was voiced, and
consensus has been reached, NEJAC will move forward with the recommendation.

3.3 NEPA

Sylvia Orduno stated that the group will return to item three later, but now continues with
item four and there are four potential actions we could take. One, request an EPA briefing
future agenda topic, create a work group, and scheduling meeting with the EPA program and a
recommendation to the letter EPA on this topic. This has been something that has been flagged
by several folks and we also had some public comments on it yesterday. Mrs. Orduno thinks
NEJAC should pull in some of the public comments, in particular, there was a recommendation
that NEJAC take up a resolution. I don't know if NEJAC members had a chance yet to read it,
but I think we should include that in the discussion.

Karen Sprayberry asked how does the resolution work? Does that go through Congress? How
does a resolution actually work? Sylvia Orduno said the resolution is from NEJAC. Karen
Sprayberry indicated that a resolution was presented, so she was just curious how that would
have worked, not saying we're going to do it, but just didn't know she has ever seen a
resolution presented to NEJAC before.

Matthew Tejada explained that a resolution would be similar to expressing an opinion in one of
the letters that the NEJAC votes to draft which is sent to the Administrator, but the NEJAC, by
its charter is formed to provide advice and recommendations to the Administrator of the EPA,
so that is who the NEJAC would be communicating to on NEPA.

Sylvia Orduno indicated that because the action that had been taken by the White House
Council of Environmental Quality (CEQ), the resolution recommendation was trying to make the
NEJAC aware of those changes, and our concerns about those changes need to be sent to EPA
Administrator. We should at least get on the record about wanting to state concerns and make
part of public record that shows our opposition.

Matthew Tejada stated that was part of the motivation for our colleague to come in and
engage with the NEJAC in Jacksonville. The gentleman who attended from CEQ came because
the letter that NEJAC had written on NEPA to the Administrator was sent to CEQ, and CEQ put it
in their record as part of the NEPA rule making process. When we get something like that
addressed to the Administrator, it speaks to issues that are not solely the purview of EPA, we
do share that with other federal agencies or the CEQ at the White House.

Ayako Nagano stated that she would support NEJAC efforts and would support a work group if
there are others that are interested.

Karen Sprayberry indicated that her other concern is about being in a time crunch to do
something about this issue.

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Matthew Tejada said he thinks the previous effort by the NEJAC was incredibly timely and
received by CEQ during their deliberative process. We're now past that. He thinks what the
NEJAC would be contemplating now would be is if the NEJAC is taking a public stance on
making sure that publicly is known to those rule revisions and have they come out with the
stance or position or opinion NEJAC wants to express about them, you would be doing that
publicly, because we are past the time for the NEJAC to try to offer an opinion during a
deliberative period.

Richard Moore suggested that CEQs comment period was very short and one of the things that
was additionally testified to in Jacksonville was that the hearing in DC conflicted with the
Florida NEJAC meeting. He thinks it would be important for the NEJAC to express its opposition
to the NEPA rollback and it would be important to express opposition on the part of the NEJAC
council. Sylvia Orduno asked if the NEJAC got a chance to review the resolution? What is the
feeling about opposition to the rollback in the context of a resolution? Is the group thinking
some other different form? Richard Moore said no, and he thinks it is not about looking at it in
a different form, because things are moving very fast on this, so he thinks it's important that we
move as the Council has said, we move on this issue and address that the rollback very clearly
impacts EJ Communities.

Sacoby Wilson asked what do we need to do as it relates to the resolution or any edits,
amendments to the resolution? Is it having strong language about the need for NEPA to do
more, not less as it pertains to cumulative impacts, do more and not less as it pertains to
looking at health or potential health impacts and do more and not less as pertains to benefits of
these projects? Are we to highlight an example like in Charleston and how NEPA should help
inform mitigation with dollars to help communities with those impacts?

Melissa McGee-Collier said that based on the column that talks about our potential actions, if
you look at this legal issue and the issue of the agricultural workers and the issue of the
chemical safety, then those response letters that came back to us from EPA Administrator,
basically said nothing except that we got the letter, thank you for your time, we will investigate
it. She believes that NEJAC should ask for a meeting with the people that run the programs.
Ms. Collier noted that she wants to see what the intent is regarding our letter. She said NEJAC
should ask, how far has EPA really looked and what does EPA plan to do to address the issues
that have been raised in the letters; another letter is unnecessary unless it's a request meeting.

Sylvia Orduno suggested starting a workgroup. She noted that Ms. Nagano would like to see a
recommendation of adopting a resolution. Kelly Wright stated that the problem with the
resolution is his experience with it. He said they used it on a regular basis with a sovereign
nation and it's no different than the deal. The other problem is with the NEPA process, we had
very limited opportunity as did the citizens of the U.S., they had two hearings and that's more
of a slap in the face in my opinion. Sylvia Orduno asked for a recommendation and what more
can be done? She indicated that most are favoring a letter over a resolution, which might be
more impactful. Kelly Wright; thinks NEJAC should do a letter, and a work group, because we

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all have different areas impacted, and it all comes back to being united or stand divided and
you fall. Sylvia Orduno said it sounds like NEJAC has folks that are recommending that we go
forward with working group and providing support a letter that is extra explicit, making sure
that we're conveying that we're not happy about what was done by the White House CEQ.
NEJAC needs to show concerns with rollbacks that harm and by establishing a clear connection
between chemical safety and the harms to agricultural workers. It feels like we can also
address this in the context of a letter and a working group. Does that sound like where NEJAC
should take actions? I will ask for a vote.

Melissa McGee-Collier asked if the letter will be requesting a meeting with the EPA program or
is it just another letter?

Sylvia Orduno said she didn't mean that specifically, but that should be in it. Karen Sprayberry
asked for clarification, the workgroup would just pull together all the points of concern that we
have? She asked that the role of the workgroup would be to pull together key concerns of ours
like the resolution and other concerns heard, and then compile it on one slide. That would be
the role of the workgroup? To file the documents would be taken to the program staff, is this
the role of the workgroup?

Sylvia Orduno said, yes, it would be the basis of it. She noted that she understands some of the
concerns raised in public comments about the problems with the rollbacks. Someone made
another comment about other concerns on how NEPA should be doing more, not less, and
what that could look like. Karen Martin reminded the members to keep in mind that if you are
considering writing a letter, it must be approved and finalized in a public meeting. If it is
something we want to start working on quickly, that means we can start working and writing
the letter, but it cannot be finalized until our next public meeting. Melissa Collier mentioned
that some of these issues like getting updates and having further conversations with the
program needs to happen quickly so we can schedule a meeting with the program office and
start talking about some of these issues before we get to that point of saying you want to write
a letter or resolution. She asked if NEJAC can develop the letter outside of a public meeting,
and then when we are ready to make a final decision on that action we must do in a public
form. Sylvia Orduno replied that it is important in getting the best sequence, so that NEJAC can
move forward and work appropriately. This is what NEJAC members need to weigh in with a
yay or nay or abstention. Should NEJAC seek a meeting with the program office and ask
questions specific to NEPA? Is the information in the resolution enough to develop a letter,
after which it will be presented at the next public meeting? If there is any opposition to what
was stated, please let me know. Otherwise, we'll go forward to just getting a consensus vote.

Michael Tilchin; asked for clarification. This is a discussion about the sequence of actions? He
noted that he understands the first action is to request a meeting with relevant responsible
leaders related to whether the issue at hand whether it's NEPA or Worker Protection Standard,
however those are separate actions and separate requests. If then, they are separate and then
the first action is to request engagement with the responsible leaders within EPA working on

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that topic prior to issuing? Our next step would be to request a meeting. Do I understand that
correctly? Sylvia Orduno affirmed, Yes. Using the basis of the resolution as part of the reasons
why we need urgency in the meetings with the program offices and using the content of the
resolution as part of the objectives for the discussions. If there's no other discussion, then I'm
going to call for the soft vote.

Sylvia Orduno affirmed that the members agreed, so the next item to discuss is relocation, and
then the NEJAC water infrastructure report. Mrs. Orduno suggested that this discussion can be
short. After that is the Superfund Task Force that should also be short. And then miscellaneous
organic chemical manufacturing and ethylene oxide as well as number nine, monitoring and
screening. So, we are going to move through those a little bit quicker. She wanted to highlight
some of the things that have been flagged for us just so that NEJAC can note them. NEJAC is
looking at number 10, the item would be hiring local contractors for remediation and disaster
recovery; number 11, natural disasters/recovery; number 12, racism; number 13,
administrators meeting discussion; 14, dialogue with office policy; number 15, dialogue with
EPA Region IV; number 16, environmental justice IWG, Interagency Working Group and NIEHS.
Number 17, public notice for future meetings; 18, translation/interpretation services; 19,
agenda development; and 20, food security. A majority, of the items have potential action that
NEJAC could address as future agenda topic for a NEJAC meetings. Mrs. Orduno said NEJAC will
come back at the end to see if there's anything that we need to speak about immediately. Let
us get back to the list of the nine. Next is Mossville relocation and the potential actions, they
are requesting an EPA briefing and a recommendation letter to the EPA on this topic.

3.4 Relocation - Mossville

Karen Martin noted that the relocation issue with Mossville, Louisiana, heard in public
comment yesterday; and at the meeting in Jacksonville is about the letter that EPA Region 6
wrote to the Bennett's. That is the information in the email you have. The Bennett's have
attended several NEJAC meetings to try and bring their issues forward, and the letter that you
have was in the minutes from 2018, and we need to decide what action we want to take on this
issue moving forward.

Richard Moore spoke regarding the letter to the Bennett's and that they stated that they never
received a copy of that letter in 2018. He thinks it would be out of place on the part of the
NEJAC to send that letter out. The letter needs to be resent to the Bennett's. Mr. Moore
mentioned the testimony regarding the lack of monitors and them not being replaced, were not
actually located near the community. The EPA has been unresponsive to the community. My
question is to Matt and to Karen, would it be important for us as a Council to open channels of
engagement with Region 6? Those who testified said that the EPA Region 6 has been
unresponsive to their concerns, and other comments about the relocation has already taken
place. It is uncertain if the relocation just or an unjust relocation. This interaction has been
very hard for the Mossville folks, who point out that the region has stated that they are finished
with Mossville, that there's nothing that the region can do about it. Does the NEJAC make a

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recommendation for further discussions to take place with Region 6 with the Office of
Environmental Justice present. Sylvia Orduno asked Mr. Moore to clarify in terms of our
recommendation, are you asking that the letter not be forwarded, is that right? And, are you
asking that the action be a discussion with Region 6? Richard Moore said he thinks that the
letter needs to be sent to Bennett's. That's number one. Number two that the NEJAC
members do not share that letter with others. That's very important because I think we would
be in violation of our first piece. And I'm asking if NEJAC should open some engagement with
Region 6?

Matthew Tejada stated that EPA has already communicated with their colleagues in Region 6.
They are going to resend the letter to the Bennett's and we also sent a digital copy to Ms.
Bennett last night. Our colleagues in Region 6 made sure of that. As Richard said the NEJAC
members have a copy of it, but please, just keep that to yourselves for now. Let's make sure
that the Bennett's get a chance to have their letter and read it and take it in first. He said that
NEJAC can and should have discussed Mossville at that meeting whether it's something on its
own or part of a community voices panel like we would at any NEJAC meeting out across the
United States. He noted that we're still hopeful that our next NEJAC meeting will be in
Houston, we are going to be talking to some communities and colleagues in Houston about
having a NEJAC in Houston as soon as we're back in a place where folks can travel and convene
in person in 2021. He thinks it would be a good forum for us obviously to continue to engage
Region 6 about Mossville, because it would obviously be featured in a meeting in Houston.
And, we will work with our regional colleagues and community folks that would be
participating.

Sylvia Orduno suggested that it will be a follow up step to connect with the community voices
panel in Houston, to make sure that folks are following this. She says we can advance in terms
of recommendations for action at this time or is there anymore? Karen Sprayberry asked what
exactly has been done in the Mossville community. She thinks if we do go back and ask Region
6 to open this engagement, leading to more meaningful engagements. It feels like there hasn't
been a lot of correspondence back and forth, so she doesn't know if there is really been any
true engagement with the community. It seems like there is a lot of opportunities with
technical assistance and opportunity to build the relationship with these people in the
community that has not been taken. Sylvia Orduno asked what would the engagement look
like? I think that you're right. What has the correspondence been in terms of some of the
questions that residents have, even if they've been relocated? Are they asking what they want
to see in terms of next steps for those ancestral lands? Karen Sprayberry sees that as one of
the questions that needs to be asked. Can NEJAC negotiate something? She thinks they need
more education and understanding about the outcome. She says NEJAC needs to address the
comments about data that's being hidden, and get it out into the open, into other rooms so
they can speak about it. Sylvia Orduno asked if the two recommendations are about additional
context and asking Region 6 for more qualitative engagements?

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Richard Moore stated it is substantive engagement. Some of the folks have moved out but
there's still folks that are living there. The EPA still has responsibility to those people that are
living there.

Dennis Randolph mentioned there needs to be some engagement with Region 6 to bring some
closure to this issue. Relocating people from their property is something that goes to the heart
of the problems we have with how people are treated. The problem with big infrastructure and
building is taking people's property and sometimes, we just forget that if we don't do it
correctly, there's a problem. He thinks this is a good opportunity to make a point, not only to
Region 6, but to a lot of other agencies that environmental justice goes to taking people's
property and how they pay it. It's speaks to how you talk to people and how Region 6 is
speaking to people. But also, the folks on the end who you're talking to buying up property,
and are doing it right now, they need to understand what the laws are. He thinks engaging with
Region 6 forcibly is important.

Michael Tilchin said there have been a number of important statements made related to
monitoring. He agreed that a good next step is an inquiry or request to Region 6. He would like
us to frame a very clear question regarding the status of monitoring in the community. I would
like to work on that question related to the status of monitoring who could help reframe that
question compelling what we heard yesterday. He wants to make sure a solid set of facts on
what is happening with respect to monitoring and to the extent that it's adequate.

Sylvia Orduno said that the NEJAC will request that reengagement include several things; an
opportunity for their community voices panel in Houston, beyond the correspondence between
the region and the community in a more qualitative way, which would include enhanced,
meaningful and impactful engagement. She mentioned including better engagement with the
academic community. She thinks it's important that there is clear questioning specific to the
status of monitoring and ensuring that there is community-driven monitoring. Richard Moore
commented that the interaction with the academic community be primarily directed towards
local folks. Sylvia Orduno said it would be part of the invitation from Mossville and Region 6.

Matthew Tejada asked if NEJAC can go through one more time the things that the NEJAC is
about to decide on? I just want to make sure that we know exactly what we're going to do. I
will share though that the letter that you all have that is being sent back to the Bennett's was a
follow up to the region engaging directly with the Bennett's and their neighbors in Mossville
about their concerns. And the relocation, EPA was aware of it, it was not our relocation, we did
not have oversight of it. I just wanted to make sure folks were aware of that context to the
situation. I am asking that we go over exactly what we're about to decide on before we do.

Sylvia Orduno said what we are going to ask for reengagement with Region 6 and the Mossville
community. She wants to make sure that the engagement is qualitative and enhanced,
meaningful, and impactful engagement that is not based on informal correspondents. We are
looking for a rebuilding and healing of the work. And there are some other areas in which we

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want to encourage additional support, and that the academic community be engaged or
reengaged. It must be done from the perspective of Region 6 taking direction from the
community. We want to also make sure that in the process of trying to improve happens in the
Mossville community communication, and there will be more community-driven monitoring
and clarity in the kind of questions that are specific to the community about the status of
monitoring they need. Lastly, we're hoping that Region 6 will also be able to participate in the
community voices panel in Houston. We want to know the results from all improved
communication and share it in Houston. Let's move forward with our vote. Members agreed to
the items outlined.

3.5 Chemical Disaster Safety Rule

Sylvia Orduno stated that the third item is risk management plan/chemical disaster safety rule,
and there are three similar actions that we can take, requesting an EPA briefing, creating the
working group, and scheduling a meeting with EPA and the EPA program, accompanied with a
recommendation letter to the EPA on this topic.

Karen Martin said this discussion was from a public commenter, Mr. Bradley Marshall, and his
comment is focused around EPA rollback that happened earlier this year right before our
meeting. We have some comments in that meeting and I think one of the things that we did
was submit a letter to EPA on this issue back in May 2019. We have not had any substantial
response from the program. We did get an acknowledgment. I think we need an update from
EPA on the issue. Richard also mentioned that we need to review these recommendations and
see if EPA has taken any action on those items in our recommendation letter and to see if
there's anything further, we need to do or recommend.

Karen Sprayberry recommended to present that to us at our next meeting and give us a follow
up to our letter and what actions they've done to follow up on the Chemical Disaster Safety
Rule.

Melissa McGee-Collier said she is not recommending that we ask them to wait until the next
meeting. She recommends that we schedule a meeting specifically to discuss with them the
recommendations that we made and any action that we've taken. I would defer and object
that point. I don't think there needs to be additional conversations, but I don't think we ought
to wait to the next NEJAC meeting. Sylvia Orduno asked Mrs. Collier that we request a meeting
with the EPA program on that. Melissa McGee-Collier said not just for that issue, but also the
issue of the agriculture and the issue of the NEPA.

Sylvia Orduno noted we have strong support for this recommendation. In terms of actions for
risk management and chemical disaster rule, what we will do is request a meeting with the EPA
program office and seek an update on the letter that we sent last year and review the
recommendations that were provided during public comment. All in favor, could you please
say yay? Members agreed to move forward.

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3.6 Water

Sylvia Orduno continued the discussion with item number six, water in Flint, Michigan and the
NEJAC water infrastructure report. She mentioned that the NEJAC sent a letter to the EPA
Administrator with concerns about the Flint water crisis and we haven't not gotten any
response. This has now been a six-year crisis for Flint. We submitted a full infrastructure
report to the EPA Administrator. We received acknowledgment of the report, but we have not
received any follow up on the report. She believes it was mentioned that it can take a year or
more to be able to get specific feedback on the recommendations in these types of charges or
reports. It seems that the Office of Water is going to be seeking NEJAC feedback on their
findings. There is an interest in having NEJAC members who want to be part of that discussion
be a part of that follow up. It is important to have some sort of follow up response to the letter
and report we sent. We know this crisis is still going on despite receiving congressional funding
for several locked cities that have been struggling like the city of Flint. We are seeing that cities
particularly urban communities of color that are east of the Mississippi have huge lead
infrastructure problems that are surfacing because these lines are rupturing and leaching lead
into drinking water system. She noted that an expansion of the Flint letter to talk more about
the lead infrastructure crisis in the context of the water infrastructure report is necessary.

Sylvia Orduno asked if NEJAC members would be okay with this and she would like to tie those
two together in this work with the Office of Water. She wants to make sure the previous letter
was mentioned to the current Administrator, making him aware of what NEJAC stated in the
letter.

Karen Sprayberry noted that Austin water might engage with NEJAC at the next full meeting for
discussion on the report and what they have done in response.

Benjamin Pauli from Kettering University Michigan, says he has served on NEJAC as a
representative of the academic community, but he is also on the board of directors of a local
environmental justice group here, the Environmental Transformation Movement of Flint. The
group was not able to get its written public comments together in time for today's meeting, but
they are in the works and they will be sent around shortly. Sylvia Orduno said that it was
mentioned that there was a settlement in Flint and noted the New York Times reported about
the $600 million in lawsuits. Benjamin Pauli said in some ways, this settlement is a victory for
residents who been waiting around for compensation for injustice that they have suffered with
in their bodies and property. He thinks it is important to people concerning environmental
justice, that we take a step back and investigate what people on the ground in the affected
community think. We should also ask to what extent does it improve a better understanding of
justice, to what extent are they still trying to identify other kinds of injustices that haven't been
remedied, and to what extent do they still need assistance.

Sylvia Orduno asked in terms of action items, let's go forward with what we are already
learning from the Office of Water, seeking a meeting about some of the preliminary
recommendations that they believe can be done from the NEJAC charge. We will combine that

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discussion with the concerns that were outlined in the Flint letter. She recommended moving
forward with resending the Flint letter to the current Administrator, indicating that we didn't
receive a response from previous administration.

Melissa McGee-Collier wanted to comment that a lot of times, there are actions taken and they
are praised and identified that they are doing and is accurate, but there is no record about what
they act on. There is nobody really looking at whether actions have been taken that impacted
the community. Are they really being made there? Are they being made whole? We must go
forward and discuss what actions or agenda items NEJAC needs to put on the list, we need to
be really looking at what kind of outcomes are really getting done. Is the community getting
accomplished what the EPA is celebrating? There is a need to look at what's really happening?

Sylvia Orduno added that we've been looking at this at the criminal action level, there's still a
number of criminal charges that have not been pursued, not to mention a whole restarting of
the criminal investigation after we change attorney generals. There's a lot of frustration
because there has been a lack of adequate regulatory response from the state agency. At that
time, Michigan Department of Environmental Quality, now, Great Lakes and Environment,
should be asked what it is that they're doing to ensure that there is not another Flint. Benton
Harbor has emergency managers who believe that more action is needed in terms of the state
and EPA through the state. This is in addition to the EJ issues around the contamination and
the health violations and risks that residents are exposed to.

Benjamin Pauli suggested resending the letter and pressure the Administrator for a response.
I just want to say that the 2017 letter has good asks in it, but some are not 100 percent relevant
anymore, so it would be good to freshen up the content and make it a little more current.

Sylvia Orduno asked Mr. Pauli how NEJAC should proceed with this? OEJ can get a letter
response for us so we don't need to resend the letter. She states that after so many years, are
there things that are no longer relevant or appropriate to update on the status. Can you, Mr.
Tejada, or Mrs. Martin give us insight into what we should do in this situation?

Karen Martin indicated that Mr. Tejada mentioned that the NEJAC does not have to resend the
letter again, because we can go to the program and ask for a response to the letter. There is
nothing wrong with creating a new letter, but it's just going to take time to do that and to
finalize the letter. We will have to finalize the letter in a public meeting. We can start a
workgroup and start working on it and gather information on the issue and finalize the letter at
the next public meeting.

Matthew Tejada agreed with Mrs. Martin that it's kind of like the NEJAC is contemplating doing
in some other areas, perhaps having an additional group of NEJAC folks that we can have
engagement with Region 5 and actually discuss some of the concerns that are different from
when they were back in 2017. He thinks that it would put NEJAC in a place to discuss it at
future meetings. Engaging Region 5 and water leadership between now and the next meeting
and then potentially crafting a new letter based upon will be more satisfying to you all as

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members and also to actually crafting some sort of a position or a recommendation pertinent
to the current status of Flint, rather than looking backwards at a 2017 letter. Sylvia Orduno
asked if NEJAC wants to say anything else about the Office of Water? Matthew Tejada said he
had an initial conversation with them yesterday and they are excited to engage with the NEJAC
at our next in-person meeting. They have got several things that they've done just in the past
year that are relevant to the recommendations that NEJAC made. They mentioned at least one
other thing that they're currently working on that they think the NEJAC will be amazed with the
responsive to the NEJAC's recommendations. The Office of Water did commit a couple of the
folks who met with the NEJAC a little over a year ago plus some of the other leadership in the
Office of Water to engaging with the NEJAC at the next upcoming meeting. And in the interim,
Sylvia Orduno and I will reach out to some of you. We will put together a small meeting with
the Office of Water leadership. They wanted to make sure that as they prepare to engage with
the NEJAC at a future meeting about the water report, they want to understand the most
important things in that report. He thinks we are shaping up for engagement with the NEJAC
on the results of that water infrastructure report.

Sylvia Orduno indicated that OEJ will send out more communication to formalize that request
and get more folks to engage in the discussion. We are going to be engaged with the Office of
Water relative to the water infrastructure charge that we did and work with them to provide
NEJAC's feedback ahead of the in-person meeting next year. We will be engaging with Region 5
regarding what has been done with Flint. This will include the infrastructure issues with Flint
providing current status information and to revise the Flint letter that will be sent to the
current Administrator, after we review it at the in-person meeting next year. Then let's go
ahead and vote on this. Members agreed to move forward.

Sylvia Orduno said that the NEJAC is at the end of time that we have allocated for this meeting.
She wanted to get a sense from OEJ's staff on how to proceed, because we still have a few
items that were part of our priority action list that we have not had a chance to review. One of
them is the Superfund Task Force and we had the list of strategies and recommendations in a
summary form on that. And then we also must get to miscellaneous organic chemical
manufacturing ethylene oxide and what kind of action we want to take on monitoring and
screening. Mrs. Martin could you give us your recommendation about what we do in terms of
next steps in time?

Karen Martin indicated that If members can stay on the line for another 15 or 20 minutes to
finish these two topics, that would help us focus the agenda for the next meeting. There is
nothing really for us to discuss around the Superfund Task Force because they've given us an
update today. Sylvia Orduno noted we would need 16 members of NEJAC to remain on the line
to have quorum. Karen Martin stated that there were 25 members on the lineand asked for a
current count.

Sylvia Orduno noted that we have still need to get feedback on comments that were given
from the public comment section of yesterday's very important meeting. I'm looking at them

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and what was mentioned in Texas the possible violations of public health centers and air, ozone
levels, emissions at the border, and the Clean Air Act waivers. There was also comments about
coal plant, soot and grime and pollution in Illinois and lack of response from Region 5 and the
comments about the frustration with our lack of digital communication. It is also important for
NEJAC to address public comments and respond to public commenters. I know that we've tried
to set aside time at our larger group gatherings like this to be able to respond or reflect on
some of the things we heard and how we can integrate them and come up with new action
items. We allow public commenters three minutes. I think in terms of the people who are
stepping up in those very vulnerable and public ways, that it would be good to have at least one
person from NEJAC offer response or appreciation or concern or something. I would like us to
consider going forward that we not allow any public comment to not have some type of
response. Every NEJAC member should make the effort at least once to respond to what public
commenters are offering.

Karen Martin mentioned that there are currently23 members on the line. Sylvia Orduno said
let's go forward then. She stated that she appreciated the NEJAC for taking the time and
commitment. She wanted to make sure if there's anything else they have to say relative to the
Superfund Task Force in terms of actions that were presented. Mike, did you want to say
anything? You and Kelly? Anything more about that?

Michael Tilchin said from his perspective, that they we're set. We've got the feedback we're
looking for at this point. We have described the path forward. He said personally he did not see
any reason to revisit this currently.

Sylvia Orduno said let's go on to chemical manufacturing and ethylene oxide. The list of
potential actions we are requesting is an EPA briefing, future agenda topic for NEJAC discussion,
and creating the workgroup or schedule a meeting with the EPA program. Does anyone want
to speak to this?

Richard Moore said it is very important for us to discuss the MON rule. One of the challenges
that we've heard is that we need the EPA to remove the exemptions on the enforcement, what
was being said was that these exemptions are providing a free pass to polluters during incidents
or emergencies. He also mentioned that EPA emission standards on hazardous air pollution
need continuous enforcement. Additionally, the EPA should require frontline monitoring at the
Croda facility. There is also another issue in Wilmington, Delaware, where the EPA inspector
general issued a follow up to their March report. It was referenced in the IG report briefly, that
came out in 2019, the letter from the NEJAC about the ETO which was helpful in getting some
of the improvements through the MON rule. The inspector general report says that EPA needs
to take immediate action to inform communities near major sources of ETO that they have an
evaluated as a cancer risk. We are talking about racial health disparities and the 25 worst
chemical plants identified in the attorney general's investigative report, particularly around
Sasol in Mossville, the Croda facility in New Castle, and the shale facility in Houston.

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Sacoby Wilson said that the NEJAC needs to really focus more on site-specific monitoring at a
neighborhood level. A lot of the current regulatory monitoring is not actually the best scientific
approach to capturing the events in the neighborhoods particularly in the frontline
communities. There are new technologies out there to capture some of the criteria for air
pollutants and there needs to be a bigger push on the EPA to actually require these type of
enhanced monitoring in areas where you have hotspots, frontline communities at risk because
we are not getting the best data to inform policy as it relates to cumulative impacts and how it
relates to permitting, to surveillance, and public health tracking and the interventions. Mr.
Wilson mentioned that there should be an overhaul of the EPA's monitoring network. These
specific communities need enhanced monitoring, particularly when we think about
nonattainment zones and the prevention of significant deterioration, and the Clean Air Act.
How can that be leveraged to ask for enhanced monitoring? Not monitoring in the right places,
gives you bad data leading to bad policy.

Sylvia Orduno asked if there is feedback on this item? What does NEJAC think about a
complete revamp? What are the next steps that NEJAC believes should be taken? Is this
something we might need to have a meeting with the EPA program or is this something that we
want to actually have a more in-depth discussion at a future NEJAC meeting? Is there
something folks believe would be important at this time?

Matthew Tejada reminded the Council that we already have NEJAC pursuing four different
engagements with potential letters, as a result of this meeting. This is a lot and NEJAC has a
limit, a natural limit, to how much and how often we can pull everyone together to pursue
things. So, I would urge folks to remember to think about what you already committed to
accomplishing, and to prioritize the work that you all want to take on.

Sylvia Orduno mentioned that as the NEJAC is figuring out how to move on these priorities, it's
still a very short list. She asked if there are ways that we can do some of the things that we've
outlined with letters and meetings in a more coherent way? Does what Mr. Moore and Mr.
Wilson outlined feel like it should be brought to a future NEJAC meeting? Do we want to try to
weave it into some of the existing action items that we've identified earlier?

Richard Moore agreed with Mr. Tejada's comments and thinks there is a couple ways of doing
it so we can move forward. One is to do a follow up letter, expanding on a NEJAC letter from
2019. I think it is better to focus on it at our next meeting, but also expand on our existing
letter.

Sylvia Orduno addressed Mr. Wilson and asked if there is anything that he thinks is the next
step as it relates to what Mr. Moore just offered? Sacoby Wilson said he would follow their
lead and to just make sure what we're doing was not overburdening NEJAC. He indicated that
he was happy to take the lead and make sure we're beneficial. Sylvia Orduno suggested moving
forward with the recommendation that he is making. Should we do a follow up letter that

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expands on the 2019 letter including specific items of concern that were outlined in this
discussion and add this to a future NEJAC discussion?

Karen Sprayberry said that her organization has done a lot of work around community, and one
of the things that we have a problem with is assessing the data collected in 2014. By the time
they evaluate it and get it out, it's 2018. One of the questions I've been curious about is why it
takes so long to get that data out? We went out with our own air sampling, and we worked
with that community to identify their concerns, and what areas they fell in around the sampling
of 2019, and several of those communities had elevated health risk. Then we did some
background sampling and we determined they needed additional air monitoring, and additional
equipment and funding to do additional sampling around these communities. A lot of states
are taking more of a lead in some of these cases.

Sylvia Orduno asked if there is a national survey of the states that asks those kinds of
questions? If they can conduct monitoring and the sampling, and does it require additional
equipment?

Matthew Tejada said we would want to follow up with our colleagues in the office of air quality
policy and standards. We have a whole team that is constantly working with states on different
emission inventories and monitoring data. We would need to follow up with them. We can
work with you or Mrs. Sprayberry to sharpen up that question and then we can get an answer
to it.

Richard Moore asked if we can proceed with that agenda item? We've already sent a letter to
the Administrator. Now we're talking about potentially adding some of the things that we've
talked about to that letter. What would be the process that we would use? Do we have to
come back to the NEJAC? Since it's not a brand-new letter, what would be the process if we
wrote a letter for approval from the NEJAC council?

Matthew Tejada said if you just count it as adding to a letter, you would be adding new
substantive content to a letter, so that's something that needs to be deliberated upon and
approved by the whole NEJAC in a public meeting.

Sylvia Orduno asked if we could get a group of NEJAC members working with the OEJ staff on
an extended letter and include the additional things that have been raised? Can we have that
ready for deliberation at the next in-person NEJAC meeting? Can we also look at where it may
be possible to incorporate some of the issues related to the chemical manufacturing and
ethylene oxide into letters that we've already agreed to do? That would be my
recommendation for this action item. Is there anyone who wants to speak to any changes? Or
object to that? Then, let's take a consensus vote. All in favor, please say aye. Members agreed
to move forward.

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Sylvia Orduno stated that the last of these action items are monitoring and screening. We are
looking at this being a future item line in NEJAC's agenda, or do we need to look at requesting
in EPA briefing on this? Can someone take the lead and start the discussion for this topic.

Michael Tilchin stated that this is a great issue for NEJAC to take on and it feels like a
contribution that NEJAC could make a nationwide impact. He said he has a vision that NEJAC
will develop a report, like the 2017 report. At risk to piling on, I don't think this is a short-term
undertaking. He envisioned this as a 2021 maybe even 2022 initiative of preparing a white
paper. The report could be something like designing and implementing a 21st century
monitoring network to advance smart and effective environmental protection and
environmental justice to communities. I'm not thinking of a research paper, but I'm sort of
thinking we have the horsepower within our Council to prepare something that is really
substantive and quite technical to promote that idea, and lead in that area within EPA

Sacoby Wilson said he was little confused because earlier in the list because the monitoring
screen was the metrics discussions. The regulatory monitoring structure does not meet the
exposure for the profile. It's not matching the exposure profile or the burden profile of the
meetings that talked about. There is a lot of new technologies when it comes to particulate
matter and some other criteria in air pollutants. There's also new work to look at that some
companies are developing centers for compounds, not just total BOCs, but also individual BOCs
like benzene. EPA's EJSCREEN has several reports that come up about screening tools, reports
came out of Michigan. There's a 2017 study comparing the EJ screening tools. They're only
currently four statewide EJ screening tools in the country. They are publicly accessible.
Maryland's EJ screen needs to be more publicly accessible. Houston has Tox File, which is a city
level tool. Minnesota MPCA has a tool. D.C.'s DOEE, has an internal EJ screen kind of tool, but
not something that's publicly accessible. There needs to be a lot of investment and every state
should have its own EJ screen tool to be required for use in decision making. Whether it is
staffing, permitting, regulations, enforcement and settlements, or whether it'd be building
stuff, where you want to target investments, where you want to target resources, where you
want to be talking? Any EJSCREEN tool is about mapping hazards and the communities
impacted. Compliance, who's been funded, who's out of compliance? Who's putting in
permits? But where's all the money going? Not from the EPA programmatic resources for
Clean Air Act, Clean Water Act, TSCA, Clean Water Act, but to and from other agencies, agency
as DLT and HUD. Where are those funds going? Where are they going based on your screening
scores to the communities that need the resources?

Sylvia Orduno said there's a lot of weight and a lot of depth to this issue around monitoring and
screening. There are conversations we need to have, and we need ways to better approach the
work and depoliticize some of the issues. It feels like it is a topic that needs further NEJAC
discussion. Are folks that are looking at monitoring issues working with states and cities on
development of EJ screening tools? Are some of the tribal governments looking at this? Is

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there a way to start outlining some of the issues that could be brought to the focus for the
discussion for the future NEJAC meeting? Does that sound like that could be workable?

Richard Moore asked if we could frame this issue up for our next NEJAC meeting? Sylvia
Orduno asked for folks who are interested in helping Mike with that, if you will please reach out
to him.

Sylvia Orduno wanted to go back to the public comments that were raised yesterday and if
anyone wants to speak to anything that we heard. What public comments are we able to
incorporate with some of the other action items? For instance, the issue around the Clean Air
Act waivers at the border and monitoring can be incorporated in the last discussion. Richard
Moore asked to have that restated. Sylvia Orduno said she wanted to make sure that
monitoring and screening could be included with what was raised yesterday in terms of
international mission (around) the border and Clean Air Act waivers that take place. Is there
anything else that anyone is remembering from the public comments that they want to raise
that we should also be flagging? She noted that she is looking for what happens in
communities, where it's not just environment justice, but it's environmental racism, and then
what needs to be done to undo and rectify it.

Jacqueline Shirley, from Rural Community Assistance Corporation, said she addressed the lady
who was talking about the NEPA and asked her to have a template or a letter of call to action.
She would like her organization to advocate with her organization on that. Karen Martin noted
there were several documents that Jill submitted in her public comment, it was five or six
documents and one of those documents is the draft resolution and we also have Jill's contact
information. We can connect you with her directly if you want to ask further questions.
Jacqueline Shirley asked if a public comment comes up and she sees something that my
organization would like to do, could I bring it to my organization? Karen Martin indicated yes,
but you would be acting in the capacity and role of your organization, not the NEJAC.

Sylvia Orduno asked if there are any other public comments items that NEJAC members want
to respond to?

Millicent Piazza indicated that it was astounding by the repeated comments about the NEJAC
being the only venue for folks to voice their concerns? She found that troubling.

Sylvia Orduno said she know right now travel is restricted, but when possible that we try to
figure out how better to work regionally. She thinks what people are seeking is help from the
EPA, indicated by the number of national calls with water activist from across the country.
Whether or not folks within the EPA understand that community members think that the EPA is
a source of relief from the problems that we can't get addressed at local or state levels. She
thinks that NEJAC has got to find a way to create better communication mechanisms and
improving some of the cultural challenges in terms of how engagement happens.

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Millicent Piazza said EPA needs to use whatever discretion and influence they have on states
and environmental regulatory agencies. She says she get calls from communities and other
states, were she has no jurisdiction. She says she gets calls from other states, asking for her
assistance because they feel like they have been shut out from their local state and
environmental regulatory agencies. EPA regional offices need to put greater influence on
state's accountability. She sees such an unevenness, and she wonders how other states and
their regional offices have forward movement. Sylvia Orduno said that there are some regions
that are good models for how this can be done better across the board.

Richard Moore noted in some cases, like permit hearings, folks are told that they can't make
public comment, they can only submit written comment, particularly during these hard times.
And some regional offices are much more proactive in their relationships with grassroots
communities and others. He thinks it is part of the comments coming out of the NEJAC that this
is the place that they feel that they can come to and people won't only just hear them, but that
the NEJAC will move forward to help them figure out some of those issues.

Ayako Nagano commented that there would seem to be a disturbing pattern, identified
yesterday by several testimonies, hotspots were identified, and she is not sure how to respond,
but wanted the Council to address that issue. And, Administrator Wheeler's talk about
delegation of environment enforcement duties to the states. They say they're going to
delegate it, but the states are not funded to do the work. This means the work doesn't happen.
She wants more clarification on what that looks like. Can we follow up on that issue with the
Administrator? Sylvia Orduno asked Mrs. Nagano to explain her thinking, because other folks
might have similar concerns, what might be the best way to continue that discussion and what
the engagement could look like.

Sacoby Wilson stated he wanted to comment on meaningful engagement. This is a point that
was brought up in this call and NEJAC must find a way to take NEJAC to the people. How can
we work with the regional offices to help them organize, listen and respond virtually, and then
make sure that the folks are getting information? NEJAC has got to put some money into
mobile libraries and put some money into technical assistance to make sure that folks could be
heard. How can we step up in that area? And, that gets back to our comment about enhanced
technical assistance. People have limited access more than before. The access has been
undermined more by the pandemic and some other stuff associated with the pandemic.

Richard Moore noted he was excited about working and being part of the NEJAC. It's an
exciting moment for NEJAC, and he truly appreciates the commitment from the Council
members. He expressed appreciation for the staff at the Office of Environmental Justice and
the tremendous work that they've been doing.

4.0 Adjournment

Sylvia Orduno asked if there is anything else, we needed to know before we close out this
meeting?

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Karen Martin indicated that there is nothing additional. She said this time spent together was
well spent. It is the kind of discussion and interaction we'd want to see in the public meetings.
Of course, NEJAC never has enough time to focus on the things that come up in these meetings.
She thinks NEJAC did a great job moving forward on some of these action items from last
meeting and from this meeting as well.

Matthew Tejada thanked everybody and NEJAC covered a lot of ground. This has been a good
meeting, with a lot of really good conversation. NEJAC had a lot of folks that hung in there and
they're still paying attention because of the quality of the discussion and the substance of the
issues that you all have been taking up. OEJ will be getting together and going over all the
action items and the follow up and then we'll be communicating with the steering committee,
and reaching out to folks to pull in for some of these other discussions and work items that
we're going to be taking on over the next few months. Hopefully, in 2021, we will come
together in person and seeing one another again in person.

Michael Tilchin indicated that it is an honor to be part of such an energized, informed, and
inspiring group. Really, a great call today. He said he knows it went long but the time flew
because we talked about really important issues with great engagement from all the members.

Karen Martin reminded the NEJAC they will be hearing from her, though e-mail, so look out for
updates from our discussions this week.

Meeting adjourned.

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APPENDIX A
AGENDA

57

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WEDNESDAY AUGUST 19, 2020

3:00 pm - 3:05 pm

WELCOME, INTRODUCTIONS, & OPENING REMARKS

o Karen L. Martin, Designated Federal Officer - U.S. EPA
o Matthew Tejada, Director, Office of Environmental Justice -

U.S. EPA

o Richard Moore, National Environmental Justice Advisory

Council Chair - Los Jardines Institute
o Sylvia Orduno, National Environmental Justice Advisory

Council Vice Chair- A/Iichigan Welfare Rights Organization
o Michael Tilchin, National Environmental Justice Advisory
Council Vice Chair - Jacobs Engineering

3:05 pm - 3:30 pm

WELCOME, EPA Updates & DIALOGUE

o Andrew Wheeler, Administrator - U.S. EPA (INVITED)

3:30 pm - 5:00 pm

PUBLIC COMMENT PERIOD

Members of the public will be given three (3) minutes to present
comments on their issue or concern to the NEJAC.

5:00 pm - 5:55 pm

NEJAC BUSINESS MEETING REFLECTION AND CONVERSATION

The NEJAC will use this time to reflect on the meeting
proceedings, public comment period, discuss and deliberate
action items, and discuss new or emerging environmental justice
issues across the United States and its territories.

5:55 pm - 6:00 pm

CLOSING REMARKS & ADJOURN

DAY 2: WEDNESDAY AUGUST 20, 2020

3:00 pm - 3:15 pm

WELCOME, INTRODUCTIONS, DAY ONE RECAP & OPENING
REMARKS

o Karen L. Martin, Designated Federal Officer - U.S. EPA

58

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o Matthew Tejada, Director of the Office of Environmental

Justice - U.S. EPA
o Richard Moore, National Environmental Justice Advisory

Council Chair - Los Jardines Institute
o Sylvia Orduno, National Environmental Justice Advisory

Council Vice Chair- A/Iichigan Welfare Rights Organization
o Michael Tilchin, National Environmental Justice Advisory
Council Vice Chair - Jacobs Engineering

3:15 pm - 4:00 pm

NEJAC SUPERFUND TASKFORCE WORKGROUP UPDATE

o Tai Lung, Workgroup Designated Federal Officer - U.S. EPA
o Michael Tilchin, National Environmental Justice Advisory

Council Vice Chair-Jacobs Engineering
o Kelly C. Wright, National Environmental Justice Advisory
Council Member - Shoshone Bannock Tribes

4:00 pm - 5:55 pm

NEJAC BUSINESS MEETING REFLECTION AND CONVERSATION

The NEJAC will use this time to reflect on the meeting
proceedings, public comment period, discuss and deliberate
action items, and discuss new or emerging environmental justice
issues across the United States and its territories.

5:55 pm - 6:00 pm

CLOSING REMARKS & ADJOURN

59

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APPENDIX B
MEETING ATTENDEES

60

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First Name

Last Name

Company

Kendra

Abkowitz

Tennessee Department of Environment and Conservation

Gerardo

Acosta

EPA Region 6

David

Ailor

American Coke and Coal Chemicals Institute

Rodolfo

Alanis

Illinois Environmental Protection agency

Rosanne

Albright

City of Phoenix

Armando

Alfonso

New Jersey Department of Environmental Protection

Teena

Anderson

Eastside Environmental Council

Peggy

Anthony

Peggy Anthony (retired)

Deyadira

Arellano

Texas Environmental Justice Advocacy Services

Al

Armendariz

Sierra Club

Andrew

Baca

EPA

Alan

Bacock

USEPA Region 9

Mahtaab

Bagherzadeh

Kentucky Division of Water

Kim

Balassiano

United States Environmental Protection Agency

Alana

Ballagh

Student

Delia

Barajas

St. Frances of Rome Church

Heather

Bartlett

Washington State Dept. of Ecology

Tarshire

Battle

Roots 2Empower

M.Lynn

Battle

ADEM

Kathryn

Becker

NMED

Laura

Berkey-Ames

National Association of Manufacturers

Deanna

Berry

Denmark Citizens for Safe Water

Molly

Birman

BASF Corporation

Hans

Bjornson

FAA

Paul

Black

Conservation Voters of South Carolina

Jenny

Boone

Southside Community Land Trust

Terry

Bowers

Department of Defense

John

Brakeall

PA DEP

Christopher

Brancart

Brancart & Brancart

Evelyn

Britton

U.S. General Services Administration

Kimberly

Bryant

FEMA

Caitlin

Buchanan

WE ACT for Environmental Justice

Sharunda

Buchanan

CDC/ATSDR

Omari

Burrell

EPA, Region 6

Robert

Byron

Montana Health Professionals for a Healthy Climate

Lance

Caldwell

EPA- Region 2

Sylvia

Carignan

Bloomberg Environment

Maria

Clark

U.S. EPA

Stephanie

Coates

University of Houston

Teresa

Colon

NCDEQ-DAQ

61

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Meredith

Comnes

US EPA

Kelly

Crain

FDEP

Rachel

Croy

EPA

Abigail

Cruz

U.S. Environmental Protection Agency

Emily

Dalgo

American Optometric Association

Valincia

Darby

DOI

Corbin

Darling

US EPA Region 8

Michelle

Davis

HHS

Viktoriia

De Las Casas

Troutman Pepper

Greg

Deangelo

Florida Department of Environmental Protection

Mike

Delaney

Mike Delaney Lab Consulting

Rafael

Deleon

US EPA

Latonya

Derrick

Stantec

Monica

Dick

AES

Amy

Dinn

Lone Star Legal Aid

Jessica

Dominguez

EPA - Region 1

Melinda

Downing

U.S. Department of Energy

A.

Edwards

EPA

Cynthia

Edwards

EPA

Natalie

Ellington

U. S. EPA Region 4

Alexandra

Ender

Dream in Green

Lena

Epps-Price

US EPA

Monica

Espinosa

EPA Region 7

Frank

Esposito

USCG

Terri

Fair

IN DOT

Andrew

Farias

Carleton College

Ericka

Farrell

EPA

Sonja

Favors

ADEM

Gabby

Fekete

US EPAOIG

Cynthia

Ferguson

Department of Justice/ Environment & Natural Resources
Division

Ashley

Fisseha

US EPA, Region 5 Superfund & Emergency Management
Division

Mark

Fite

USEPA

Catharine

Fitzsimmons

Iowa Department of Natural Resources

Mary

Foley

Carlson Foley Enterprises LLC

Tasha

Frazier

USEPA

Tamara

Freeman

EPA R7

James

Fulcher

Fulcher Family Farms

Arlene

Galindo

Environmental Justice Coalition for Water

Justin

Garoutte

New Mexico Environment Department

62

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Demi

Gary

Oak Ridge Intstitute

Andrea

Gelatt

MEA

Andrew

George

UNC

Bridget

Gilmore

Yale School of the Environment

Daniel

Gogal

US EPA

Kevin

Good

US EPA-OIG

Sheryl

Good

US EPA

Amelia

Goodingcheek

Illinois Environmental Regulatory Group

David

Graham

graham.david@epa.gov

Eve

Granatosky

Lewis-Burke Associates LLC

David

Gray

EPA

Kassandra

Grimes

University of Virginia

Liam

Gunn

Yale School of the Environment

Shauna

Hansen

Tacoma Environmental Services Dept

Dewayne

Harley

General Services Administration

Anita

Harrington

City of Detroit

Garry

Harris

Managing Director

Faith

Harris

Virginia Interfaith Power & Light

Lashan

Haynes

US Environmental Protection Agency

Anna

Hayward

Stony Brook University - School of Social Welfare

Cynthia

Herrera

NAACP

Allison

Herring

Kansas Department of Health and Environment

Tracy

Hester

University of Houston Law Center

Ariel

Hill-Davis

Industrial Minerals Association - North America

Marcus

Holmes

holmes.marcus@epa.gov

Brian

Holtzclaw

US EPA Region 4, EJ & Children's Health Program

Rebecca

Huff

EPA

Ben

Hughey

Individual

Diana

Hussey

N/A

Faith

Iseguede

Jackson State university

Juliette

Jackson

U.S. EPA

Hilary

Jacobs

Beveridge & Diamond

Kia

Johnson

FEMA

Dawn

Johnson

DCJ Global Management Solutions, LLC

Cassandra

Johnson

MDEQ

Bonita

Johnson

EPA Region 4

Jay

Jones

Dept. of Energy

Towana

Joseph

USEPA- Region 2

Kay

Jowers

Nicholas Institute, Duke University

Seigi

K

Ucb

Jorge

Kalil

Kearns & West

63

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Harichandana

Karne

EPA

Sean

Kearns

Office of Representative Barragan

Gwendolyn

Keyes Fleming

Van Ness Feldman, LLP

Carolyn

Kilgore

EPA

Ashanti

Kincannon

Student

Marva

King

PALAX-498340

Arielle

King

Vermont Law School

Jane

Kloeckner

US EPA R7

Brianna

Knoppow

EPA

Sarah

Koeppel

Department of Homeland Security

Renee

Kramer

NC DEQ

Gena

Larson

Wl DNR

Rochelle

Lee

Southside Community Land Trust

Heriberto

Leon

US EPA

Heidi

Lesane

USEPAR4

Stevie

Lewis

Public Lab

Evan

Lewis

U.S. Environmental Protection Agency

Stacey

Lobatos

EPA

Keisha

Long

SC DHEC

Elizabeth

Lopez

Groundwork Denver

Kathryn

Maccormick

Dominion Energy

Cecilia

Magos

Columbia University

Alyssa

Malcolm

EPA

Kristin

Marshall

Boeing

Marie

Martin

SCS

Vincent

Martin

V Martin EJ Consultant

Deitra

Matthews

Conservation Voters of South Carolina

Laurie

Matthews

Morgan Lewis & Bockius

Mark

Matulef

U.S. HUD

Sarah

Mazur

EPA/ORD

Amelia

Mccall

EPA

Ken

Mcqueen

EPA

Grant

Mckercher

IDEM

Ameesha

Mehta-Sampath

US EPA Region 2

Chad

Milando

BU

Sarah

Miller

Native Village of Kluti-Kaah

Amy

Minor

Southwest Research Institute

Ruben

Mojica Hernandez

U.S. EPA - Region 9

Emily

Monroe

Texas Water Resources Institute

Laura

Montoya

EPA

George

Moore

1962

64

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Trayce

Moore-Thomas

MDEQ

Christina

Morgan

EPA

Jade

Morgan

EPA

Negin

Mostaghim

EPA

Naeema

Muhammad

NC Environmental Justice Network

Michelle

Muska

ASPPH/EPA

Julie

Narimatsu

US EPA

Thomas

Neff

City of Kansas City, Missouri

Erich

Nolan

Personal

Leanne

Nurse

US EPA

Chigo

Nwaogwugwu

Harris County Attorney's Office

Shawn

Obrien

Troutman Pepper

Yasmine

Outlaw

DePaul University

Rock

Owens

Harris County, Special Assistant County Attorney for
Environmental Affairs

Alex

Owutaka

US EPA

Jeff

Pacelli

N/A

Karen

Parkhurst

Thurston Regional Planning Council

Michele

Paul

City of New Bedford, MA

Ni colette

Pavlovics

US Coast Guard

Dionicio

Pena

DP Consulting

Margot

Perez-Sullivan

EPA

Albert

Petrasek

US Department of Energy

Cynthia

Peurifoy

ReGenesis Community Development Cooperation

Victoria

Phaneuf

BOEM

Alii

Phillips

EPA

Samantha

Phill ipsbeers

Usepa

Karen

Pierce

SF Department of Public Health

Remilando

Pinga

Michigan Department of Environment Great Lakes and Energy

Kenneth

Pinnix

PTW Associates LLC.

Gilly

Plog

Town of Frisco

Shela

Poke-Williams

EPA

Dana

Powell

Appalachian State University

Chris

Pressnall

Illinois EPA

Lisa

Prince

N/A

Reginald

REPA

PATCO

Elise

Rasmussen

State Board of Health

Lisa

Reynolds

Metropolitan Washington Council of Governments

Danielle

Ridley

EPA's Office of Research and Development

Brendan

Rivers

WJCT

65

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Marvin S.

Robinson II

QUINDARO RUINS/ Underground Railroad- Exercise 2021

Walter

Robles

Ketchikan Indian Community

Anna-marie

Romero

U.S. EPA Region 7

Brandan

Roneel

Intelligent Governance LLP

Zach

Rosenblatt

CUNY

Joi

Ross

APEX Direct Inc.

Carol

Rosskam

northeastern university

Enrique

Saenz

indiana environmental reporter

Kirstin

Safakas

USEPA R5

Rian

Sallee

WA State Dept. of Ecology

Kathleen

Salyer

US Environmental Protection Agency

Keenan

Sanderson

Ketchikan Indian Community

Adam

Saslow

asaslow@kearnswest.com

Leslie

Saucedo

FEMA

Tim

Schutz

UC Irvine

Celina

Scott-Buechler

Office of Senator Cory Booker

Yodit

Semu

UCLA- Labor Occupational Safety and Health

Dawud

Shabaka

Harambee House, Inc. . Citizens for Environmental Justice

Queen zakia

Shabazz

United Parents Against Lead & Other Environmental Hazards
(UPAL)

Paul

Shoemaker

Boston Public Health Commission

Avery

Siler

Yale School of the Environment

Carl

Sivels

EPA

Katie

Slattery

EPA

Alex

Smith

Washington Department of Ecology

Thomas

Smith

US EPA

Brayndon

Stafford

EPA

Joyce

Stanley

US Department of the Interior

Katherine

Stewart

Rep. Alma Adams

Tasha

Stoiber

EWG

Eric

Stuart

Steel Manufacturers Association

Greg

Sullivan

US Environmental Protection Agency

Elyse

Sutkus

US EPA

Casey

Sweeney

Wisconsin Department of Natural Resources

Lisa

Tapia

ADOT

Joshua

Tapp

US EPA Region 7

Larry

Taylor

Kentucky Department for Environmental Protection

Valerie

Thomas

FEMA

Tami

Thomas

EPA

Rachael

Thompson

Glynn Environmental Coalition

Kristina

Torres

US EPA

66

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Serenity

Trevino

The Harris County Attorney's Office

Kathy

Triantafillou

US EPA

Michael

Troyer

USEPA

Kim

Tucker-Billingslea

General Motors LLC

Robert

Tysor

Harris County Attorney's Office

Sarah

Utley

Harris County Attorney's Office

Gloria

Vaughn

Environmental Protection Agency

Lior

Vered

Toxic Free NC

Nicole

Vermillion

Georga EPD

Esperanza

Vielma

Environmental Justice Coalition for Water

Alan

Walts

US EPA Region 5

Kenneth

Warren

Warren Environmental Counsel LLC

Julie

Weisgerber

FEMA

Christian

Wells

University of South Florida

Shanika

Whitehurst

EPA

Chad

Whiteman

U.S. Chamber of Commerce

Holly

Wilson

US EPA

Say

Yang

Center for Earth, Energy and Democracy

Deeba

Yavrom

EPA

Carolyn

Yee

California Environmental Protection Agency, Department of
Toxic Substances Contr

Victor

Zertuche

U.S. EPA

67

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APPENDIX C
WRITTEN PUBLIC COMMENTS

68

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August 19, 2020

By electronic filing

National Environmental Justice Advisory Council
U.S. Environmental Protection Agency
August 2020 Teleconference

Re: Transcript of Harris County, Texas public comment

Hello, my name is Isabel Segarra Trevino and I serve as Assistant County Attorney for Harris County,
Texas. Harris County is the most populous county along the Gulf Coast and is home to the Houston Ship
Channel and the Port of Houston, both supporting the largest petrochemical complex in the Nation.
Harris County is also one of the most racially and ethnically diverse places in the Nation: over 100
languages are spoken here and nearly half of our 4.7 million residents speak a language other than
English at home, according to the U.S. Census Bureau. A fifth of our population identifies as Black, while
over two fifths identify as Hispanic and Latino. In Harris County, we face unique challenges when trying
to address environmental issues, both from industrial sources and natural disasters.

For example, in 2019 alone, the County responded to two explosions and chemical fire at the Exxon
Baytown petrochemical complex, an explosion and chemical fire at the KMCO Crosby facility, and a
multi-day chemical fire at the ITC Deer Park facility.

These disasters resulted in lost lives, hospitalizations, pollution, and property damage.

Because we lack zoning laws, it is not uncommon to find residential areas at the fenceline of industrial
facilities, like in the east Harris County community of Manchester. Many other communities are within
one mile of TRI facilities, like Pleasantville and Third Ward, where the late George Floyd called home.

Harris County is also hurricane- and flood-prone. Hurricane Harvey brought devastation to many of our
communities and our residents are still working to restore their lives and homes, for example, residents
of the east Harris County community of Fifth Ward.

The County seeks new approaches to meet these ever-growing challenges. We would like to hear from
community-based groups and local governments that have successfully implemented policies and
programs to address environmental justice issues in their communities.

If you would like to share your policy or procedure, or set up a call with me, please email me at

isabel.segarragcao.hctx.net. Thank you.

-------
mmm,

A Non Profit Environmental ( duealum & Fumomic Development Corporation
"Greening Communities One Neighborhood at a Time"

Name: Jenna D'Ottavio

Name of Organization or Community: California Greenworks, Inc.

City and State: Los Angeles, California

Phone Number: 303-476-0390
Email: jenna@calgrnwks.org

Brief Description of Concern: California Greenworks, Inc. recognizes that many underserved and low-
income communities are disproportionately exposed to a wide array of environmental pollutants and
toxins. Residents living in neighborhoods with high levels of pollution are at an increased risk for
developing respiratory diseases, such as, but not limited to, asthma and cardiovascular diseases. Tree
canopy is directly linked to the quality of air we breathe. Here in south LA, trees are not as prevalent as
in other parts of Los Angeles. California Greenworks, Inc. primarily serves Council Districts 8,9, and 10.
Our neighborhoods on average have less than 2% tree canopy. According to the County of Los Angeles
Public Health Series, CDS's Healthy Places Index (HPI) scores in the 2nd percentile; CD9 scores in the 0th
percentile, and CD10 scores in the 22nd percentile. These numbers are calculated through 25
community characteristics, including social, economic, and environmental conditions. California
Greenworks, Inc. bears witness to structural issues which have maintained the minimal access our
communities have to healthy, green recreational spaces. CDS has 0.53 acres per 1,000 residents, CD9
has 0.33 and CD10 has 0.57. The average for LA County is 8.10 acres.

What do you want the NEJAC to advise EPA to do: Tree canopy is directly related to Median Average
Income. California Greenworks, Inc. requests that greening south LA neighborhoods be prioritized as it is
in other Council Districts. CGWs requests that the EPA partner with community organizations to address
the inequities which have resulted due to polluted air and lack of tree-canopy. An increase in south LA's
tree canopy will drastically affect cooling and heating utilities across seasons, enabling our communities
to have more capital. This is imperative for the communities we serve, as 29% of people in CDS are living

-------
below 100% the Federal Poverty Level (FPL) and 55% are below 200% FPL; in CD 9 39% are living below
100% FPL and 70% are below 200% FPL; and

23% of CD10 is living below 100% FPL and 48% is below 200% FPL. The Los Angeles Public Health Series
reports do not provide what percentage of constituents are living below 300% FPL, but as it relates to
food insecurities, which is also an environmental issue, the Series reports that 31% of CD 8 living below
300% FPL experience food insecurities, 29% of CD 9 living below 300% FPL and 23% of CD 10 living below
300% FPL report a prevalence of food insecurity in their household. California Greenworks, Inc. requests
that emergency community advisory committees for each Council District be formed to strategize
immediate and long-term remedies that can be implemented to meet dire needs as it relates to tree
canopy, air quality, and water supply and water quality. It is necessary for these committees to be
predominately made up of community members. California Greenworks, Inc. recommends that investing
in community based solutions and ideas will ensure that no one in Los Angeles is living in the 0th
percentile, nor the 2nd percentile, as it relates to a Healthy Place (HPI).

Works Cited:

Los Angeles County Department of Public Health (2018) City and Community

Health Profiles. (Reports on Council Districts 8,9, and 10). Retrieved from http://
publichealth.lacounty.gov/ohae/cchp/healthProfilePDF.htm

71

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Thompson's Island Public Access Joan and Mike
Delaney, 8/19/20 idelanevnp@msn.com.
mike@mikedelaney.org

How many of you have walked from Squaw Rock Park in Quincy, across the sand bar to Thompson's
Island? Thompson's Island is in Boston Harbor, but for a few hours at low tide you can walk to the Island
across a large sandbar.

Unfortunately, Thompson's Island Outward Bound Educational Center (TIOBEC) has posted "No
Trespassing Signs." There is a Grant of Conservation Restriction on Thompson's Island (1). In 2002,
Massachusetts residents paid four million dollars to Thompson's Island Outward Bound. In return
TIOBEC agreed to allow people unescorted public access to the island ALL YEAR ROUND. Presently, this is
not happening.

Almost all the Boston Harbor Islands are open, but only for rich white people who own a boat. The
National Park Service (NPS) has also provided boat moorings for these rich boat owners. It is important
to note that the National Park Service is one of the whitest federal agencies. About 83% of the NPS
21,000 employees are white (2). Racism has plagued the NPS since it started in 1916. Look at the history
of Shenandoah National Park. It created a segregated area known as Lewis Mountain. Black people were
not allowed anywhere else in the park. It wasn't until 2013, the NPS created the Office of Relevancy,
Diversity, and Inclusion.

The closing of Thompson's Island is an overt act of racial/social injustice. We are all aware of injustices
that happen every day. Thompson Island can be reached by bike, bus, baby stroller... by walking across
the enormous sandbar. It has the best public access of a green area for poor, black, marginalized,
people. Massachusetts paid millions of dollars to Thompson's Island for public access. And NPS and
TIOBEC have not followed through with their responsibilities.

While rich white people enjoy the privileges of the Boston Harbor Islands, we know there is no
substantive change to include everyone. The Boston harbor Islands have become a "white space."

Thompson Island Outward Bound should take down the "No Trespassing" signs. They should provide
information about the Grant of Conservation Restriction areas on the Island that allow public access.
They should encourage people to use Thompson's Island. Start the transformation. This is not someone
else's problem. Don't go back to a blissful state of denial.

"Thompson Island", Trust for the Public Land. Downloaded 8/18/10. (https://www.tpl.org/our-
work/thompson-island#:~:text=Thompson%20lsland%20was%20the%20last,the%20public%20fo
r%20recreational%20use.)

(1) "Racist roots, lack of diversity haunt national parks", Jeremy P. Jacobs and Rob Hotakainen, E&E
News, June 25, 2020. Downloaded 8/18/20. (https://www.eenews.net/stories/1063447583)

72

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To:

From:

Boston Harbor Islands Partnership

Joan Delaney (idelanevnpgmsn.com) Mike Delaney

(mikegmikedelanev.org)

RE:

Date:

July 21, 2020

Thompson Island Conservation Restriction

My name is Joan Delaney. My husband, Mike Delaney, and I have been residents of Quincy for most of
our lives and we grew up in Boston Harbor and on the Islands.

We have a significant concern regarding how Thompson Island is not providing public access and are
bringing our concern to you today.

In 2002, Thompson Island accepted $4M from the State of Massachusetts and the National Park Service
and entered into a Conservation Restriction (attached) that designated each end of the island as
conservation space and detailed how the public can access the island year-round.

For at least the past five years, and probably much longer, Thompson Island hasn't been abiding by the
specifics of this agreement, or even with its spirit. If the Island's staff sees anyone walking the beach,
they immediately tell them it's a private island and they need to leave.

The 2002 "Grant of Conservation Restriction" defines a specific conservation area on each end of the
island for unescorted recreation pursuits for the general public, such as "walking, hiking, trail use,
beach-combing, nature observation, photography, picnicking, cross-country skiing" (4(d), p.11), and
enjoyment of scenic views, in perpetuity.

The Restriction requires Thompson Island to allow "enjoyment of the natural environment of the
conservation area by members of the public on an escorted and unescorted basis" (4(c), p.10).
Unescorted public access is allowed year-round, for activities such as "cross-country skiing" (4(e), p. 12).
Access to the island is allowed by ferry, pleasure boats, and by walking across the spit from Squantum.

"Unescorted public access is permitted to the entire conservation area on weekends..." (4(h), p. 13) and
during "reasonable daylight hours on weekdays" (4(h), p. 13).

Thompson Island is required to "provide general public access by the Unescorted Public Access ferry"
(4(j), p. 13). People without previously scheduled unescorted public access (UPA) are allowed to inform
the ferry captain of their request and if space allows, they are allowed to take the ferry to the island "as
would apply with a UPA Reservation" (Exhibit B.11(d), p 25).

Unfortunately, Thompson Island is not abiding by the letter or the spirit of the Conservation Restriction.
They have posted numerous No Trespassing signs all over the island and beach. Thompson Island staff
challenges any visitors tell them this is a private island and that they need to leave. The signs are posted
so people feel they can't even be on the beach, even though this is specifically allowed in the agreement
and in Massachusetts' laws.

73

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If they can't have a ferry available year-round, as required in the agreement, they should encourage the
public to access the island via the spit from Squantum and offer tours. They should boast about the
history of the island, show off its natural beauty, and give homage to the Native Americans who first
lived on the island.

Their web page should provide accurate information on access to the island. They need to have factually
accurate signs. The staff should have proper employee identification and uniforms and should welcome
visitors to the island and inform them of their rights to access the allowed portions of the Conservation
Area and the beaches.

Thompson Island was paid a large amount of money; they are required to live up to the agreement.

We would be more than willing to work with Thompson Island to help them develop the public access
that is allowed in the agreement. The island is a beautiful environmental and cultural resource and the
public should be encouraged to enjoy it.

Here are a few actions that are needed to be in compliance with the Conservation Restriction:

There needs to be an immediate plan for UPA. (Unescorted Public Access) as document in the 2002
Grant of Conservation.

A copy of the 2002 Grant of Conservation Restriction should be readily accessible to the public. You
should not need to request information through the Freedom of Information Act. These rules should be
prominently posted at Thompson's Island and Squaw Rock. They should be prominently posted on
Boston Harbor Now, and the National Park Service Website.

* The information on Thompson Island website should reflect truthful information. For instance,
their website states if you are an "Islander" you can make a minimum donation of $1000 and you
can visit the island

"anytime." Access should not be for rich people only.

The staff at Thompson's Island needs to be properly educated. They should engage the public. They
should share this natural wonder and proudly pay homage to the American Indians who lived, worked
and died on this land.

When Thompson's Island laid the new water pipe this past spring, they rode construction
equipment onto Squaw Rock Park. They bulldozed hundreds of trees, plants, homes for animals...
When this happened, we contacted David Murphy, Commissioner of Quincy Parks. He spoke to Josh
Roy. We were told at that time there would be complete restoration of this destroyed
area. That needs to happen. When is that planned? The sandbar has been destroyed and needs to
be returned to its original condition. Squaw Rock Park is an Indian burial ground. They dug up Indian
remains.

There are huge holes that have been dug on Thompson's Island. I don't know if these holes are a
science experiment or maybe looking for broken pipes. Presently, these holes are dry and empty. The
rest of the year they are full of water. Animals fall in, can't get out, and drown. And yes, I have photos.
Some of these holes are several feet deep. There are no retaining walls in place. It would be easy for an
adult or child to fall in and be covered with dirt. Certain injury or death. In addition, this is a burial
ground for the Mosswetusset Indians. Stop digging up American Indians.

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•	The Thompson Island staff rides the Kubota across the sandbar at low tide to access Quincy for
pizza, coffee, etc. If they are telling people they can't access the island by sandbar, they should not.
They zip through people on the sandbar creating a dangerous situation. A few years ago, a Kubota
got stuck in the sandbar. It could not be retrieved and was consumed by the ocean.

Massachusetts residents are allowed to walk between the low tide and high tide mark on any beach.
The staff must be properly informed. Stop denying residents access to the beach.

Unescorted public access should start immediately. It costs nothing. According to the grant there does
not need to be an orientation to the island.

*	Please remove the misleading signs about no swimming or fishing.

Please remember, Thompson's Island was stolen from Indigenous People. It is a sacred burial ground.
The earth isn't a dead thing you can claim. The animals and plants that live here have lives and spirits
just like you and me. They have inherent worth, just like you and me. Start showing the solemn respect
that is deserved.

Attached: Grant of Conservation Restriction, 2002.

75

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Suffolk County - 20/20 Perfect Vision i2 Document Detail Report

Current datetime: 6/11/2020 2:55:07 PM	

Doc#	Document Type Town	Book/Page	File Date	Consideration

279	DEED	28699/304	06/10/2002	4000000.00

Property-Street Address and/or Description
EAST BOSTON
Grantors

THOMPSON ISLAND EDUCATION CENTER INC, THOMPSON ISLAND OUTWARD BOUND EDUCATION CNTR INC
Grantees

MASSACHUSETTS COMMONWEALTH OF, UNITED STATES OF AMERICA
References-Book/Pg Description Recorded Year

35502/269 LIEN 2004, 40828/168 ORD 2006, 50840/228 ORD 2013, 52267/196 ORD 2013, 60944/120 ORD 2019, 61036/46
ORD 2019, 61699/174 LIC 2019

Registered Land Certificate(s)-Cert# Book/Pg

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28699 30^4

97Q

I

GRANT OF CONSERVATION RESTRICTION

Thompson bland Education Center, Inc. a Massachusetts charitable corporation, having a
usual place of business at Thompson Island, P.O. Box 127, Boston, MA, 02127, awl its affiliate
Thompson Island Outward Bound Education Center, Inc., and their successors and assijps
(collectively referred to herein as the "Grantor" or "Thompson"), for consideration of Four
Million Dollars ($4,000,000), hereby grants, with Quitclaim Covenants, in perpetuity and
exclusively Tor conservation purposes, to the Commonwealth of Massachusetts, acting by and
through its Department of Environmental Management, and its successors and assigns
("DEM"), and to the United States of America, and its successors and assigns, having an
address do National Park Service (the "Park Service"), 1849 "C" Street, N.W., Room 2444,
Washington, D.C., 20240, as tenants in common (each referred herein as the "Grantee" and
collectively the "Grantees"), a Conservation Restriction pursuant to the provisions of	K

Massachusetts General Laws Chapter 184, Sections 3133 as described below, for tfikpurpdSs 5 2
set forth in Article 97 of the Amendments to the Massachusetts Constitution f Article 9T*),^ithi=pi
respect to interests in certain parcels of land containing approximately 240,51 aeries. Store ot~ r_';~
less, located in the City of Boston, Massachusetts and further described in Exhibit A kftached
hereto (referred to herein as the "Premises", "Thompson Island" or the "Island")^ ISift'PrerSses
consist of a "Building Envelope" of approximately 45.09 acres, more or less, andtheVemaiiBer
of the Premises, 195.42 acres more or less, being referred to herein as the "ConservaTfon Area",
all as shown on a plan entitled "Plan of Land Thompson Island Boston Harbor, East BostoiCMAl;
02128" prepared for MA Department of Environmental Management and the National Park
Service, dated February 19,2002, prepared by Coler & Cotantonio, Inc., to be recorded herewith
and made a part hereof and referred herein as the "Plan**.

I. Purposes.

Whereas, the Omnibus Park and Public Land Management Act of 1996, Public Law 104-333,
110 Stat. 4233,16 U.S.C. 460kkk as amended (the "Governing Legislation") establishes the

Boston Harbor Islands National Recreation Area (the "Park Area") to preserve the land and
waters which comprise the Park Area, to improve access to the Boston Harbor Islands, to
provide education and visitor information programs, and to manage the Park Area in partnership
*Xo with the private sector, the Commonwealth of Massachusetts, the municipalities surrounding
Massachusetts and Cape Cod Bays, certain private entities owning one or more of the Harbor
Islands, including the Grantor, end certain other historical, business, cultural, civic, recreational
and tourism organizations (as defined in the Governing Legislation, the "Boston Harbor Islands
Partnership" or the "Partnership"); and

Whereas, the Secretary of the Interior is authorized pursuant to the Governing Legislation to
acquire, in partnership with others, a less than fee interest in Thompson Island within the Park
Area, of which the Grantor is the sole owner, and

Whereas, the Premises possess significant scenic landscape values, framing the rural beauty of
the Island's rounded hills, open fields, woodlands, salt marsh, and shoreline against the other
Boston Harbor islands and the striking contrast of the Boston skyline to provide a unique and
dramatic visual environment; and	Liam C.Floyd

Bourbeau & Floyd, LLP
50 Beacon Street
Boston, MA 02108

m.

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f

28699 305

Whereas, the Conservation Area provides important opportunities for public access and
recreation as part of the Boston Harbor Islands National Recreation Area, including appropriate
passive recreational pursuits for the genera) public such as unescorted walking, trail use, beach-
combing. nature observation, and enjoyment of scene views; and

Whereas, the Premises constitute an outdoor classroom that afford the youth and adults of the

Greater Boston area the opportunity for unusual learning experiences and educational programs
through the continuation and further development of the educational programs of the Grantor as
a part of the Boston Harbor Islands Partnership consistent with the terms and conditions of this
Restriction, so as to provide to the citizens who utilize the Park Area the benefit of the active
environmental and educational programs of the Grantor to complement the more traditional Park
Area activities; and

Whereas, the Grantor is currently providing extensive educational programs through resident
and non-resident activities available to the public on a free and substantially subsidized basis,
focused on youth but also including adults, and such programs are educational mission programs
of benefit to the public; and

Whereas, the Premises are located on Thompson Island, which is listed in the National Register
of Historic Places in its entirety for the prehistoric archaeological resources located therein; and
whereas, the Wand may contain significant historic period archaeological resources which may
be eligible for listing in the National Register of Historic Places; and

Whereas, the Premises are an island drumlin that possess important habitat, including beach,
saltmarsh, grasslands and woodlands, for native Horn and fauna, particularly for bird species as
the Premises include the largest functioning saltmarsh of any of the Wands in Boston Harbor;
and

Whereas, the purposes of this Restriction include retaining the Conservation Area
predominantly fa its natural, scenic, and open condition; protecting and promoting the
conservation of forests, meadows, wetlands, soils, ponds, coastal resources, and wildlife;
allowing public access for nature observation, walking, and enjoyment of the scenic and open
space resources of the Conservation Area as specifically provided for herein; and consistent with
the permitted uses as set forth herein, including without limitation, the continuing education
programs of the Grantor, preventing any use of the Conservation Area that will significantly
impair or interfere with the ecological, scenic, recreational, educational, scientific,
archaeological, and open space values (collectively, "conservation values**); and

Whereas, to accomplish all of the foregoing purposes the Grantor and the Grantees have agreed
upon the terms and conditions of this Restriction as constituting an appropriate balance between
(i) the continued growth and development of the Grantor's educational programs as a part of its
unique role in providing such active outdoor environmental education programs as a part of the
Boston Harbor Islands Partnership, (ii) enjoyment of access to the natural environment of the
Conservation Area by members of the public on both an escorted and unescorted basis, and (iii)
protection of the natural environment of the Island from damage and overuse.

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,28699 306

Now, therefore, in consideration of the above and the mutual covenants, terras, conditions and
restrictions contained herein, the Grantor covenants for itself and its successors and assigns, that
the Premises will at all times be held, used and conveyed subject to and not used in violation of
the restrictions and prohibitions set forth in Section 2 below, which shall run with the Premises,
in perpetuity, as said restrictions are limited or affected by the provisions of Section 3
("Reserved Rights") or the provisions of Section 4 ("Public Access to the Conservation Area;
Coordination with Grantor's Environmental Programs").

2. Prohibited Activities.

Subject to the Reserved Rights of the Grantor described in Section 3 below and the agreement of
the parties to provide for Public Access to the Conservation Area in coordination with the
Grantor's continuing environmental programs as described to Section 4 below, the following
restrictions shall apply to the Premises:

(a)	The Conservation Ansa (including, without Emiution, any body of water thereon) shall be
continued predominantly in its present undeveloped and natural condition and shall not be used
for residential, industrial, or commercial use except as permitted by the terms ofthis Restriction,
or any other use which is inconsistent with the intent of this Conservation Restriction, being the
perpetual protection and preservation of the Conservation Area and its natural resources, except
as expressly permitted in this Restriction.

(b)	No residential dwelling or other building, mobile home, tennis court, artificial swimming
pool, landing strip, asphalt or concrete driveway or road, billboard or other advertising display,
utility pole, tower, conduit or line, equipment, fixture, trailer, antenna, dock, pier, boat landing,
septic system or other temporary or permanent structure or improvement shall be constructed,
placed or permitted to remain on the Conservation Area except such structures as are expressly
permitted in this Restriction.

(c)	No loam, peal, gravel, soil, sand, rock or other mineral resource, or natural deposit shall be
mined, excavated, dredged, or removed from the Conservation Area, except to the extent
necessary for excavation required to erect structures and facilities, construct trails, or conduct
sound agricultural, silviculture], or wildlife habitat management practices as allowed in Sections
3.2 or 4 hereof, and except for archaeological investigations pursuant to paragraph 3.2(h). No
archaeological field investigation shall be conducted for any purpose, except the field surveys
and subsurface investigations authorized by the State Archaeologist of the Massachusetts
Historical Commission pursuant to paragraph 3.2(b).

(d)	No soil, refuse, trash, vehicle bodies or parts, rubbish, debris, junk, waste, low level

radioactive or hazardous waste (except as permitted under the Massachusetts Contingency Plan)
or other substance or material whatsoever shall be placed, stored, dumped or permitted to remain
an the Conservation Area, excepting the temporary placement of soil to the extent necessary for
excavation required to install and erect the structures or facilities allowed In Sections 3*2 or 4
hereof and any debris deposited on the beaches by wave action.

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20 699 307

(e) No trees, shrubs or other vegetation on the Conservation Area shall be cut, removed or
destroyed, except that the Grantor may perform such cutting, pruning, mowing, burning, and
removal as shall be dictated by sound agricultural, silviculture! or wildlife habitat management
practices, to preserve or provide vistas, and as otherwise expressly permitted in this Restriction.

(!) No activities shall be carried out which are detrimental to drainage, flood control, water
conservation, water quality, erosion control, or soil conservation, except for any temporary
impacts permitted by applicable laws and regulations as reasonably necessary for purposes of
exercising any of the reserved rights in Sections 3 or 4.

(8) No activities shall be carried out which are detrimental to archaeological conservation.

(h)	No use will be allowed on the Conservation Area of automobiles, trucks, motorcycles,
motorized trail bikes, all-terrain vehicles, snowmobiles, or any other motorized or power-driven
vehicles, excepting from this provision motorized wheelchairs and vehicles used by the Grantor
and its employees and agents as reasonably necessary for puiposes of exercising any of the
reserved rights in Sections 3.2 or 4, or as required by police, firemen, or other governmental
agents in carrying out their lawful duties.

(i)	No commercial or industrial use of any kind shall be permitted on the Conservation Area,
including but not limited to use as a commercial camping, hunting, trapping, fishing, or spotting
club or facility, or any institutional use inconsistent with the purposes of this Restriction, except
as expressly permitted in this Restriction.

(j) No planting of any invasive exotic plant species, identified as such on lists maintained by the
Division of Fisheries and Wildlife's Natural Heritage and Endangered Species Program, shall be
permitted.

00 No use shall be made of the Premises, and no activity shall be permitted thereon, winch Is
inconsistent with the terms of this Restriction. No activity (including, but not limited to,
drainage or flood control activities) shall be carried on which is detrimental to the natural
resources of the Premises or detrimental to water quality, soil conservation, wildlife
conservation, the protection of natural plant communities, rare, endangered or threatened
species, or proper agricultural and/or forestry management practices or which is otherwise
wasteful of the natural resources of the Premises.

(1) No subdivision or division of the Premises, or any portion thereof, into two or more lots (as
compared to conveyance of the Premises in its entirety, which shall be permitted), shall bo
permitted without the express written permission of the Grantees, except for any such
subdivision of the Premises required for the purpose of complying with applicable legal
requirements for the construction, modification, renovation, repair or financing of new or
existing structures to the extent permitted in Section 3 below, in which case reasonable advance
written notice shall be given to the Grantees, but the Grantees shall not have a right to
disapprove such a subdivision. The Grantee may, at its discretion, approve such other division of
land as It deems necessary and appropriate to father the puiposes of this Restriction.

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28699 308

3» Reserved Rights.

The Grantor reserves to Itself and its successors and assigns the right to conduct or permit the
following acts and uses. The exercise of any right reserved by the Grantor under this Section 3
shall be in compliance with all applicable federal, state and local laws. The inclusion of any
reserved right in this Section 3 requiring a permit from a public agency does not imply that the
Grantees take any position on whether such permit should be issued, but the failure of the public
agency to take a position on any such permit shall not be assumed to imply disapproval by such
agency.

Notwithstanding any provisions of this instrument to the contrary, the Grantor hereby reserves to
and for itself and its successors in title the right to conduct or permit the activities described in
subsections 3.1 and 3.2 on the Premises, subject to the provisions of Section 4 below with
respect to increased public access to the Conservation Area.

3,1 Building Envelope.

(a)	The Grantor retains a Building Envelope within which the Grantor has already constructed a
pier and associated floats, access roads and paths, an athletic field, ropes course and associated
climbing tower, and 14 buildings with a total habitable area of 94,000 square feet. The
maintenance, repair, replacement and use of the existing structures and facilities are permitted by
tais Restriction.

(b)	The Grantor shall lave the right to replace, construct, repair, rehabilitate, demolish,
reconstruct, modify, move, use, own, and occupy existing and additional buildings and structures
within the Building Envelope, subject to the restrictions herein, all in compliance with applicable
laws and regulations. The Grantor shall notify the Grantee prior to commencing construction of
any new building or structure. The total habitable building square footage of permanent
structures whhin the Building Envelope (as opposed to temporary educational structures refetTed
to in Section 3.2(c)) is limited to no more than 180,000 square feet.

(c)	Within the Building Envelope, the Grantor retains the right of use, maintenance, repair,
construction, installation, relocation, removal and replacement of wells, septic systems,
underground utility tines, underground telephone lines, and other facilities in support of the
existing and additional structures permitted under paragraph (b) above. The Grantor also retains
the right to pave, improve and extend the system of roads and paths within the Building
Envelope to serve the buildings and structures permitted under this Restriction.

(d)	No buildings or structures shall be located within the area marked as the "Quad" as shown on
the Flan. No buildings or structures, except those used for marine purposes or utilities, including

storage, shall be located within the two portions of the Building Envelope marked as "buffer
strips" as shown on the Plan, except for landscaping or other structures associated with visitor
access located in the "Access Corridor" as shown on the Plan through the West buffer strip. The
buffer strips between the beaches and the trails on the East and West sides of the Building
Envelope as shown on the Plan shall be maintained as vegetated borders, allowing filtered views
to and from the interior portions of the Building Envelope and the water.

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,20699 309

(e) Repair, rehabilitation and restoration of the exterior of the Hughes (c. 1902) and Lewis
Gardner (c. 1882) buildings, as shown on the Plan, shall conform to the Secretary of the Interior's
Standards for Rehabilitation In force as of the date hereof, a copy of which is attached as Exhibit
C.

(J) New construction within the Building Envelope in addition to the currently approved
Program Building and new maintenance building in the location shown on the Plan, including
new additions to existing buildings, shall be of Ugh architectural quality and shall conform to
the following criteria:

i.	The siting, massing and spatial relationship of new constriction shall complement the
campus setting as expressed in building design derived from classical styles with buildings
generally rectangular in form that enclose courtyards and quadrangles. Individual buildings
isolated from the campus shall be allowed within the Building Envelope subject to the
limitations of paragraph 3.1(b) above, provided their siting, massing, and proportionality does
not materially intrude on or materially diminish the integrity of the campus setting of the
Building Envelope.

ii.	No building shall be taller than four stories or fifty (SO) feet in height (as height is
currently defined in the Boston Zoning Code, a copy of a portion of which is attached hereto as
Exhibit D) which is the height of the rootline of the highest building existing at the time of this
Restriction.

iii.	New buildings dull be primarily composed of masonry materials or clad in wood,
and ail buildings and struct ures shall be designed, constructed, and reconstructed of compatible,
relatively non-reflective building materials that blend into the surrounding landscape to the
extent reasonably practicable

iv.	Solar panels shall be permitted to be installed on new and existing buildings, provided
that reasonable efforts are made to make them as consistent with the design environment of the
Building Envelope as is reasonably possible within the then currently available designs of solar
panels.

(g) The use, maintenance, modification and repair of the existing septic system, and the
enlargement or replacement of the septic system within the Building Envelope as required to
service the additional buildings permitted within the Building Envelope.

3,2 Other Reserved Rights.

Notwithstanding any provisions of this instrument to the contrary, the Grantor hereby reserves to
and for itself and its successors in title the right to conduct or permit the following activities on
the Premises, subject to the provisions of Section 4 below with respect to public access to the

Conservation Area:

(a) The operation of schools, educational centers and other charitable or educational activities on
the Premises consistent with the charitable and educational purposes of the Grantor, including.

6

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28699 310

without limitation, all of the traditional uses and activities of the Grantor, the continuation of
which are recognized in the Governing Legislation and this Restriction as being of public
benefit; and to use the Premises, including all existing and any new permanent structures,
buildings and facilities permitted to be located on the Premises (as opposed to temporary
educational structures referred to in Section 3.2(c) below), for commercial, residential, and
institutional uses, activities, and purposes, as such use categories are defined under Article 8 of
the Boston Zoning Code as of the date hereof (collectively the "Permitted Uses").

(b)	Within the Conservation Area, subject to the provisions of paragraph 3.2(p) (below), the use,
maintenance, modification and repair of underground utility lines, such as telephone, electric,
and water mains, and the installation, use, maintenance, modification and repair of new utility
lines, including without limitation a sewer line, generally within the line of the road/gravel path
which runs from the location shown on the Plan as "Approximate Proposed Building &

Location" within the Building Envelope to the southerly end of the Island to the boundary of the
Premises at the Mean Low Water Line. Any relocation or installation of such utilities shall be
subject to prior written approval of the Grantee, which shall not be unreasonably delayed or
withheld, provided there is no more than reasonable short term detrimental impact on the scenic,
ecological, and/or archaeological integrity of the Conservation Area. No other new
infrastructure shall be allowed in the Conservation Area, except for those approved by the
Grantees.

(c)	The repair, maintenance, modification, replacement and use of educational structures within
the Conservation Area, including climbing towers, lean-to's and camping platforms, including
those currently existing and those authorized below in this paragraph ("temporary educational
structures** as opposed to permanent structures referred to in Section 3.1(b)). Construction of not
more than four (4) additional tent platforms, lean-to's or other similar temporary educational
structures related to the Grantor's educational programs will be permitted, subject to prior
written notification of the Grantees, in the general area of the eight (8) current Campsites shown
on the Plan (the areas around the Campsites as shown on the Plan, the Ropes Course Areas as
shown on the Plan and the Building Envelope are herein collectively called the "Activity
Areas".) All camp sites shall be limited in size to an area within a seventy-five (75) foot radius
measured from the center of the tent platform. Construction of one major additional educational
structure, such as a climbing tower or ropes course, and one smaller non-permanent educational
structure larger than a lean-to or camping platform, shall be allowed within the Building
Envelope at the general location of the Potential Future Ropes Course defined on the Plan in
addition to the buildings permitted pursuant to Section 3.1(b). Periodic relocation of all such
temporary educational structures within the Activity Areas to avoid overuse and other
detrimental impact on the scenic landscape or ecological integrity of the Premises stall be
permitted, subject to prior written notification of the Grantees. Any further or other relocation of
existing temporary educational structures, other than in the Building Envelope, shall be subject

to prior written approval of the Grantees, which shall not be unreasonably delayed or withheld,
in which event no more than reasonable short term detrimental impact on the scenic landscape or
ecological integrity of the Premises shall be permitted. Prior to undertaking any new
construction or relocation of structures permitted in this paragraph (c). Grantor shall comply
with the provisions of paragraph 3.2(p) below.

1

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28899

(d)	The reconstruction of the following two (2) historic structures on the Island, 0) the root
cdlar, and (n) the weather station, shall be permitted in their historic locations as shown on the
Plan, subject to prior written notification of the Grantees, in accordance with the Secretary of the
Interior's Standards for Reconstruction and with the provisions of paragraph 3.2(p) below.

(e)	Subject to the provisions of paragraph 3.2(p) (below) and to written approval of the Grantees,
which shall not be unreasonably delayed or withheld, the installation of a wind turbine for
alternative energy purposes, provided there is no significant and detrimental impact on the noise
level, scenic landscape, archaeological or ecological integrity of the Premises.

(0 The construction, erection, use, and maintenance and use of trails, fences, observation blinds,
boardwalks, benches, bridges, gates, stone walls, and other minor educational and recreational
structures on the Premises, as reasonably necessary for the uses thereof or hereinafter permitted,
or necessary and desirable ill controlling unauthorized use or facilitating authorized use of the
Premises. No new paved roads or paved trails shall be allowed in the Conservation Area.

(g)	The construction, erection, use, replacement, and maintenance of signs or kiosks that are
consistent with the Parte Area standards, as indicated in the Access Plan, setting forth restrictions
on the use of the Conservation Area, communicating information about trails, locations, natural

features, flora and fauna or similar items.

(h)	The conduct of archaeological activities, including without limitation survey, excavation and
artifact retrieval, following submission of an archaeological field investigation plan and its
approval by the Grantee and the State Archaeologist of the Massachusetts Historical
Commission (or appropriate successor oflicial).

(i)	The conduct of sound agricultural and horticultural uses on the Premises existing at the time
of this Restriction or which have historically been used for such purposes, including mowing and
grazing of existing Adds and meadows, the installation of fences, and the clearing of invasive
woody growth. If said agricultural uses cause significant detrimental impact on the scenic,
ecological, or geolopcat integrity of the Premises, or unreasonably impale UPA within the
Conservation Area, the Grantor shall immediately cease such activities at the written request of
either Grantee. Said agricultural uses shall be consistent with the Park Area standards and in
accordance with the Wetlands Protection Act, the standards and practices generally approved %
the University of Massachusetts, Cooperative Extension Service, or any successor thereto, and
the applicable requirements, if any, of the United States Department of Agriculture, Natural
Resource Conservation Service, regarding erosion control, sedimentation, and non-potot source
pollution control. Animal husbandry uses shall be permitted only within the Building Envelope.

(j) The conduct of sound silvicultural uses of the Premises, including selective pruning, cutting,
and replanting to prevent, control or remove hazards, disease or insect damage, fire, or to
preserve the present condition of the Premises, including vistas, woods roads, and trails.

(k) The temporary stockpiling and composting of stumps, tree and brush limbs, and similar
biodegradable materials originating on the Premises in locations where the presence of such
materials will not have a deleterious effect on the purposes of this Restriction, including scenic

8

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28699 312

values, as well as the clearing and temporary stockpiling of debris originating from areas subject
to tidal action.

(I) The management of the Conservation Area for the benefit of wildlife (including, without
limitation, (he planting and cultivation of wildHfe cover) or cutting, mowing, pruning, burning,
application ofhertricide by a licensed applicator, or removal of vegetation to enhance and
promote varied types of wildlife habitat consistent with sound wildlife management practices.

(m) The use and application within the Conservation Area and storage within the Building
Envelope, of herbicides, pesticides, insecticides, fungicides, or other chemicals or materials to
further the goals of this Restriction, subject to notification of the Grantee in accordance with the
procedures set forth in Section S below. Such use shall be conducted in a safe and prudent
manner, in conformity with existing federal and state law, the manufacturer's requirements, and
the specific recommendations, if any, of the University of Massachusetts, Cooperative Extension
Service.

(n) The installation of erosion control measures on the steep shoreline bluff in the northern

portion of the Premises, subject to prior written approval of the Grantee, which shall not be
unreasonably delayed or withheld, provided there is no significant detrimental impact on the
scenic landscape, ecological, archaeological or geological integrity of the Premises except to the
extent any such impact is offset by the benefits of said erosion control measures, in the
reasonable judgment of the Park Project Manager in consultation with the DEM Manager, and in
accordance with the provisions of paragraph 3.2(p) below.

(o) Consistent with the Grantor's obligations set forth in Section 4 below, allowing public access
to the Conservation Area compatible with the conservation values protected by this Restriction,
collecting fees for organized programs on the Premises, imposing restrictions on the uses,
activities, and hours of operations consistent with the Access Plan, maintenance and use of the
trails, roads, and pier on the Premises, and maintenance of the meadows and Selds on the
Premises.

(p) Prior to undertaking any construction that involves excavation or other ground disturbance as
permitted by paragraphs 3.2 (b),(c),(d),(e) or (n). Grantor shall consult with the Massachusetts
Historical Commission to determine whether an archaeological investigation is required and
shall adopt prudent and feasible alternatives that avoid, minimize or mitigate harm to significant
archaeological sites.

4, Public Access to the Conservation Area; Coordination with Grantor's Educational
Programs.

(a) In addition to restrictions on structures, activities and uses as set forth in Sections 2 and 3
above, this Restriction is intended by the parties to provide for a long term, mutually
advantageous sharing of activities, facilities and locations to advance the educational and
environmental interests of the Parit Area, the Partnership, the Grantor and the Grantees in a
potentially synergistic relationship. The Grantor currently provides public access to the
Premises through both its educational programs and through escorted tours of the Island

9

es.

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28899 313

(currently provided by the Friends of the Harbor Islands), Previously, it has not been within
either the charitable/educational purposes of the Grantor as an educational institution or within
its constrained charitable/educational budget to safely administer additional public access by
individual members of the public on an unescorted baas without unacceptable risk to the safety
of the individuals, the sensitive natural environment of the Premises, or the natural open space
values required for the success of its educational programs. By the mechanism of this
Restriction, the Grantor is adding the component of Unescorted Public Access (defined below) to
the public benefits the Grantor has historically provided to the community, on a bass which does
not jeopardize the viability or vitality of the outdoor-environmental educational programs which
constitute its core charitable mission. U is also anticipated, as the opportunities of the Park Area
develop, that the Grantor will be able to make its outdoor environmental education programs
available on other Harbor Islands, to further broaden the opportunities for public participation.

(b)	The applicable principles and required definitions agreed upon between the Grantor and the
Grantees with respect to such Unescorted Public Access and educational programs, which are
expected to remain relatively constant over a period of yean are set forth in this Section 4, and
the current detailed agreement and procedures for the administration of such Unescorted Public
Access in close coordination with the Grantor's ongoing educational programs, the details of
which Unescorted Public Access the Grantor and Grantees agree may be revised from time to
lime by mutual agreement of the parties, are set forth in the Access Plan attached hereto as
Exhibit B and made a part hereof (the "Access Plan"). Although it is expected that the
provisions of this Section 4 stall remain relatively unchanged over a longer period of time than
any current Access Plan (and may never be changed), the Grantor and the Grantees recognize
and explicitly agree (and by his/her acceptance of this Restriction the Secretary of
Environmental Affairs recognizes and agrees) that because of the perpetual duration of this
Restriction and the detailed operational requirements of this Section 4 to implement public
access in dose coordination with ongoing educational programs, it may be necessary to the
effective implementation of the conservation purposes for which this Restricti on is granted for
the Grantor and the Grantees to amend this Section 4 of this Restriction to more effectively
describe the then-current agreement of the Grantor and the Grantees with the approval of the
Secretary, in a manner which is no less protective of the conservation values for which this
Restriction has been established, without any necessity or requirement for legislative approval in
the context ofM.G.L. c.184, s. 31-33 or Articles?.

(c)	The Grantor and the Grantees agree that the provisions of this Restriction and the current

Access Plan constitute an appropriate balance between (a) the continued growth and
development of the Grantor's educational programs as a part of its unique rote in providing such
active outdoor environmental education programs as a part of the Boston Harbor Islands
Partnership, (b) enjoyment of access to the natural environment of the Conservation Area by
members of the public on both an escorted and unescorted basis, and (c) protection of the natural
environment of the Island from damage and overuse (hereinafter the "Education/Access
Balance" or the "Balance"). The Grantor and the Grantees agree that any modification of this
Section 4 or the Access Plan proposed or adopted shall not materially adversely affect such
continued growth and development of the Grantor's educational programs or the protection of
the natural environment of the Island from damage and overuse.

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20699 31U

(d) For purposes of this Restriction and the Access Plan, the following terms shall have the
following meanings:

"Unescorted Public Access" (or "UP A") shall mean that members of the public who (1) hive
UFA Reservations, (2) enter the Premises from a scheduled UPA Ferry, (3) receive orientation
from Thompson stuff upon arrival and acknowledge agreement to follow applicable roles and
practices, including Imitations on areas of the Island open to UPA because of educational
programs, hazards or overuse, and (4) conform to such rules and practices, shall have access to
the portions of (he Conservation Area designated pursuant to the Access Wan then in effect,
either individually or in voluntary small groups without the requirement of an assigned guide or
leader, for low-impact, non-motorized, non-comracrcial outdoor recreational use, including, but
not limited to. walking. Mking, trail use, beach-combing, swimming, nature observation,
photography, picnicking, cross-country skiing, educational walks, and other non-motorized
outdoor recreational activities that do not materially alter the landscape nor degrade
environmental quality. Unescorted Public Access includes access to the shoreline and beaches,
but the number of persons counted as UPA does not include members of the public counted as
Beach Access or Escorted Public Access.

"Beach Access" means access by members of the public torn individually-owned private boats
to, and only to, the beaches at the perimeter of the Premises, and not access to the interior of the
Conservation Area or the Building Envelope beyond the beach itself. The number of people
engaging in Beach Access is not included in Unescorted Public Access. No Unescorted Public
Access shall be allowed over the so-called "spit" from Squantum in any event.

"Escorted Public Access** means organized groups of members of the public which are actively
led and supervised during the duration of their stay on the Island by a leader with appropriate
qualifications previously approved by the Grantor, which hold a Croup Reservation.

"DEM Manager" means the person designated as such by the DEM Commissioner.

"Park Project Manager" has the meaning given to It in the Governing Legislation, which for
purposes of this Restriction shall mean the Secretary's Designee.

"Secretary's Designee" stall mean the person designated as such by the Secretary of the Interior.

"Thompson Administrator" means the person designated as such by the Grantor in writing to the
Park Project Manager, as such designation may be altered from time to time, in writing to the
Park Project Manager, by Grantor, its successors or assigns.

"UPA Reservation" means a reservation for Unescorted Public Access for a specified time
period on a specific day on which UPA is authorized, which is established and documented
under a system which is the same or substantially similar to the system adopted for the small,
sensitive public islands in the Park Area.

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28699 315

"Group Reservation" means a reservation for Escorted Public Access Tor a specified time period
on a specific day for a specific group and led by a leader with appropriate qualifications
previously approved by the Grantor.

"Summer Holidays" means Memorial Day, the July Fourth Holiday, and Labor Day,

"UPA Ferry" means any duly licensed boat authorized by the Thompson Administrator and the
Park Project Manager in consultation with the DEM Manager to discharge and pickup UPA
visitors holding UPA Reservations at the Thompson Island Pier. The designation of UPA Ferry
may be revoked by the Thompson Administrator for cause if there is reasonable evidence thai
the operation of the Ferry poses a potential risk to the safety of persons or property.

(e) The Grantor agrees to permit Unescorted Public Access to the Conservation Area on any
weekend day of the year or Summer Holiday (or portion of a weekend day or Summer Holiday
served by the UPA Ferry schedule), as described herein, and in the Access Plan as it may be
amended from time to time except on up to three (3) days in any twelve month period to
facilitate the programming of large events by the Grantor. The Activity Areas will be oif limits
to Unescorted Public Access at all times for safety reasons. Unescorted Public Access is not
permitted to the areas shown on the Plan as the Sa![marsh, the Icepond Area or the Pond Area
(hereinafter the "Saltmarsh". the "Icepond Area" and the "Pond Area", respectively, and
collectively the "Sensitive Areas"), except access to the Bird Blind as shown on the Plan (the
"Bird Blind") via the trail shown on the Plan across the Building Envelope, which is permitted,
and kayak access to the Saltmarsh originating outside the Saltmarsh around the time of high tide.
Except in the case of unusual hazards, the beaches at the perimeter of the Premi ses shall be open
to Unescorted Public Access, Escorted Public Access and Beach Access on days when each
respective Access t$ authorized. The Thompson Administrator shall manage the scheduling of
the Grantor's educations! programs and both Escorted and Unescorted Public Access so as to
achieve the Education/Access Balance as defined above in this Section 4, and subject to the
requirements for Unescorted Public Access set forth in this paragraph and the current Access
Plan. For each weekend day and Summer Holiday, depending upon the number and nature of
the educational programs which are scheduled, the Thompson Administrator shall determine, in
his/her reasonable judgment, the number of people who can be permitted Unescorted Public
Access without materially interfering with the educational programs or requiring additional
supervision. In determining this number, the Thompson Administrator shall take into account
the reasonable level of stalling required to protect the resources, and the details of the
educational values of each program scheduled to be conducted, distinguishing between those
programs which place a premium on solitude or preserving the uninterrupted atmosphere of the
natural environment, and those in which such values are less important. If sufficient demand
does not exist during the off-season winter months to justify the expense of administration and
supervision, after reasonable efforts by the Grantor, the Grantees and the Partnership to make
known the availability of the Island for seasonal activities such as cross-country skiing through
distribution of material* as described in the Access Plan, the availability of Unescorted Public
Access on winter week ends may be reduced by mutual written agreement of the Grantor and
Grantee.

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20699 316

(I) The Grantor agrees to permit Escorted Public Access to the Conservation Area, including the
Activity Areas except Activity Areas which are in use, and the Sensitive Areas, on any day of
the week, with advance approval, consistent with scheduled educational programs and
Unescorted Public Access in the reasonable discretion of the Thompson Administrator,

(g)	The Grantor reserves the right to post and close to all Escorted and Unescorted Public Access
specific areas when such areas could constitute a public safety hazard, or such areas that require
protection from foot traffic from all viators and users of the Island, such as archeologicel sites or
areas of compacted soil, or to close the entire Island to public access if necessary for safety
reasons.

(h)	In the event that the use of the Premises becomes primarily one or more of the Permitted
Uses that does not include education of members of the public as a primary part of its purposes
or mission such that the Conservation Area is no longer being used for educational
programming. Unescorted Public Access shall be permitted to the entire Conservation Area on
weekends, except the Sensitive Areas because of their environmental sensitivity and potential
hazards, subject to reasonable limitations necessary to protect and conserve the natural beauty
and ecological resources of the Conservation Area, as reasonably determined by the Thompson
Administrator and the Park Project Manager in consultation with the DEM Manager. In such
event. Unescorted Public Access may be permitted to any portion of the Conservation Area
except the Sensitive Areas during reasonable daylight hours on weekdays subject to the
provision of reasonable supervisory staffing by one or more of the Grantees or, if the Grantor, its
successors! or assigns so elects and Grantees agree, by the Grantor, it successors or assigns.

(i)	Consistent with Massachusetts General Laws chapter 21, §17C, neither the Grantor nor the
Grantees shall have any responsibility for providing active supervision of Unescorted Public
Access. The Grantor has the right to provide appropriate management of public access and use,
and the Grantor's staff shall have the right to terminate the UPA Reservation and status of any

person who does not conform to established roles and practices for Unescorted Public Access,
but the Grantor shall have no obligation to provide supervision beyond giving the orientation
presentation described in the definition of Unescorted Public Access. The Grantees shall be
under no obligation to provide such management or supervision. In connection with the
operation of UPA Ferries to provide Unescorted Public Access to the Conservation Area,
including any period when the Thompson feiry constitutes the sole UPA Ferry, the Grantor shall
not have responsibility for, or any liability to, any person engaging in Unescorted Public Access
who Ms to timely board the last scheduled UPA Ferry departing Thompson Island on any day.
The Grantor also has the right to maintain the natural beauty of the landscape by cleaning up and
removing debris and elements unsightly to the natural landscape, but the Grantor shall have no
obligation to do so in a manner which exceeds the needs and economic capabilities of its
educational and charitable mission.

(j) The Grantor shall maintain the Premises' existing pier in a safe and serviceable condition
consistent with the needs and economic capabilities of its educational and charitable mission,
and which mil provide for general public access by a UPA Feny in accordance with the Access
Plan.

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28699 317

(k) The Grantor shall maintain the existing open fields, as shown on the Plan, in a substantially
similar condition as maintained at the time of the grant of this Restriction, to ensure maintenance
of scenic vistas of the Premises, the mainland, and the other Boston Harbor Islands.

0) The Grantor shall maintain the extent of, and keep to good condition, the trail network
accessing the Ml Conservation Area. The current approximate location of the trail network is
shown on the Plan. The Grantor shall maintain such trails in a reasonable manner so that they
are reasonably free from debris, limbs and any unreasonable hazards consistent with M.G.L.
chapter 21, §17C.

(m) The Grantor Ml make reasonable efforts to prohibit any person from vandalizing, looting
or otherwise disturbing archaeological resources, and shall promptly report any such disturbance
to the Massachusetts Historical Commission.

5. Notification; Decisions.

(a) Unless otherwise provided herein or by law, the Grantor shall notify the Grantees in writing
at least forty-five (45) days prior to undertaking or allowing any uses or activities on the
Premises which require notification or approval of the Grantees under Sections 2,3, or 4 above,
or that are contrary to the express purposes of this Restriction, or that will adversely affect the
conservation interests found within the Premises. The notice shall describe the nature, scope,
design, location, time table and any other material aspect of the proposed activity in sufficient
detail to permit the Grantees to make an informed judgment as to its consistency with the
purposes of this Conservation Restriction. Whenever the Grantor's or Grantees* consent or
approval is required under the terms of this Restriction, the recipients) of the notice shall
respond within 45 days of receipt of such notice (and may, at its option, make a finding, in
writing, that the proposed activity or use shall or shall not have a deleterious impact on the
purposes of this Restriction). Failure to respond in writing within such 45 day period shall be
deemed to constitute approval of the action proposed in the notice as submitted, so long as the
notice sets forth the provisions of this paragraph relating to deemed approval after the passage of
time. In all events in which a decision, approval, judgment or agreement fin this Section 5
referred to as an "approval") is to be made by both Grantees hereunder (1) any required notice
or request for such approval shall be given by notice as specified hereunder to both Grantees; (2)
ail further communications with the Grantor in connection with such requested approval shall be
through and coordinated by the Park Project Manager, so as to avoid any duplicate, overlapping
or inconsistent exchange of information; (3) in any situation in which any approval requested by
the Grantor does not appear likely to be approved or lias been determined by either of the
Grantees on a preliminary basis will not be approved as requested by the Grantor, a
representative of the Grantor shall be afforded at least one joint meeting with the ultimate
decision makers) of both Grantees prior to the final decision; and (4) the formal approval or
determination to approve or not to approve su;h request shall be given by the Park Project
Manager in a form indicating that it is rendered on behalf of and is binding upon both of the
Grantees.

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'28689 318

(b) Any notices required by this Restriction shall be sent by registered or certified mail, return
receipt requested, or by recognized overnight delivery service to the following address or such
address hereafter as miy be specified by notice in writing:

Grantee: Commissioner

Massachusetts Department of Environmental Management

251 Causeway Street
Boston, MA 02114-2104

Grantee: Superintendent

National Park Service

408 Atlantic Avenue, Suite 228

Boston, MA 02110

Grantor; President

Thompson Island Education Cotter, Ine.

Thompson Island, P.O. Bo* 12?

Boston, MA 02127

Any such notice shall be deemed to be effective on the date received or on which delivery is
refused during regular business hours.

6. Enforcement and Legal Remedies of Grantor and Grantee,

(a)	The Grantee's duly designated officers, directors, employees, representatives, and agents
shall have the right to enter the Premises at reasonable times and fa a reasonable manner for the
sole purpose of inspecting compliance with this Restriction, provided that persons conducting
such activity shall immediately register with the Grantor's duly designated staff on site when
entering the Premises.

(b)	In the event of a violation of the terms of this Restriction by any party, except when such
violation will cause immediate irreparable harm, in which event the party seeking to enforce the
terms of this Restriction may seek injunctive relief in connection therewith, such party shall give
notice of such alleged violation to the other party, and request the other party to remedy such
violation, including such particulars as will reasonably permit the party against which
enforcement is sought to respond. If the parties cannot agree within a reasonable period of time,
the parties agree to negotiate in good faith to attempt to resolve any dispute, including
representatives of each party empowered to finalize a binding resolution of the dispute making
themselves available on a reasonable basis to permit at least two face-to-face meetings. If such
dispute shall not be resolved by agreement within thirty days of the second such face to face
meeting, then, upon request of either party by written notice to the other, such dispute shall be
submitted to a mutually-acceptable mediator for a period of sixty days from the date of such
notice in an effort to resolve such dispute by mediation. If the violation is not remedied within a
reasonable time after such mediation is completed or abandoned, the party seeking enforcement
of the terms of this Restriction may enforce this Restriction by appropriate legal proceedings,
including, without limitation, obtaining injunctive or other equitable relief against any violations.

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including without limitation relief requiring restoration of the Premises to its condition prior to
any such violation (it bang agreed that the Grantor or Grantee may have no adequate remedy at
law), and shall be in addition to, and not in limitation of, any other rights and remedies available
to either party. Enforcement of the terms of this Restriction shall be at the discretion of either
party, and any forbearance by either party Jo exercise its rights under this Restriction shall not be
deemed or construed to be a waiver.

(c) The Grantor agrees with the Grantees to continue to carry commercial general liability
insurance covering its negligent acts and omissions in connection with its educational programs
and other activities at such limits as it considers prudent for its then applicable programs and
activities, and agrees to provide certificates of such insurance to the Grantees upon request. The
Grantor further agrees to indemnify and hold harmless the Grantees for any loss, tost, damage,
injury, claim, or liability within the scope of such insurance to the extent of the available
proceeds of such insurance caused by the negligent acts or omissions of the Grantor, its
employees, agents, contractors, clients, customers and its Invitees which are related to the
Grantor's activities, as opposed to members of the public engaging in public access to the
Conservation Area pursuant to this Restriction who shall not be deemed to be invitees of the
Gmntor for purposes of this sentence. To the extent that the Grantor Is reasonably able to (i)
obtain insurance coverage covering the negligent acts or omissions of members of the public
engaging in public access pursuant to this Restriction, and/or (H) add each of the Grantees as
additional named insureds on such policies, and/or (iii) obtain confirmation in the form of such
policies or certificates thereof that the insurance company shall have no recourse against either
of the Grantees for payment of any premium or assessment, in any such case without the
payment of any additional premium or other modification of coverage, the Grantor agrees to
make reasonable efforts to obtain and maintain such modifications of its insurance.

7.	Immediate Vesting of Property Rights.

The Grantor and Grantee agree that the grant of this Restriction gives rise to a property right
which vests immediately in the Grantee, and that the Grantor has retained fee title and use rights
of substantial economic value. The Grantor and the Grantee are granting and paying for this
Restriction, respectively, effective on the date this Restriction is executed and delivered, based
upon their respective determinations as to the value of such grant and the consideration paid
therefore.

8.	Subsequent Transfer*.

(a)	The Grantor agrees to incorporate by reference the terms of this Conservation Restriction in
any deed or other legal instrument by which it divests itself of any interest in all or a portion of
the Premises.

(b)	The Grantor agrees to provide a Right of First Offer by notice to the Commonwealth of
Massachusetts, in the event that the Grantor chooses to divest itself of any permanent interest in
all or a portion of the Premises. The foregoing shall not be deemed to include any transfer,
lease, license or other arrangement to any other organization for the purpose of carrying out the
educational or charitable purposes of the Grantor, its successors and assigns. If the Grantor has

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28699 320

received a bona fide offer from another party for such interest (an "OfTer") the Right of First
Offer shall be at the amount specified in such Offer. If the Grantor has not received an Offer, the
Right of First Offer shall be at the fair market value as determined by appraisal as set forth
below. Such appraisal may be performed by a single duly qualified appraiser mutually agreed
upon by the Grantor and the Grantee, or if they cannot agree within thirty (30) days of the receipt
of the Right ofFirst Offer notice to the Commonwealth, then each party shall appoint a qualified
appraiser within the following thirty (30) days. If the two appraisers appointed by the parties
cannot agree on the fair market value of the permanent interest in the Premises proposed to be
divested within sixty (60) days of the date of the appointment of the last of them, then such
appraisers shall jointly appoint a third appraiser, who (hall submit his appraisal within forty-five
(45) days of his appointment. In such event, the fair market value for such interest shall be the
avenge of the two appraised values which are closest to each other, and the third appraisal shall
be disregarded. Following either (i) receipt of the Right of Erst Offer notice specifying the
value for the interest set forth in an Offer, or (ii) the submission of the final appraised value by
notice to the parties, as the case may be, the Commonwealth shall have a period of four (4)
months from the date of receipt of such notice to accept the Right of First Offer at the value
specified in the Offer or such final appraised value, as the case may be, by notice to the Grantor.
If the Commonwealth feils to accept such Right ofFirst Offer as provided above, then such
Right and all rights under this Section 8(b) shall expire and be of no further force or effect. If
the Commonwealth does accept such Offer or Right ofFirst Offer, as the case may be, the
closing of such purchase shall occur at 10:00 a.m. on the first business day which is sixth (60)
days after the receipt by the Grantor of the Commonwealth's notice of acceptance, at the Suffolk
County Registry of Deeds or other location in Boston that has been agreed upon by the parties in
writing.

(c)	In the event that the Grantor conveys any interest in the Premises to a party other than the
Commonwealth of Massachusetts, the Grantor shall give written notice to the Grantees of the
transfer of any interest at least thirty (30) days prior to the dale of such transfer. Failure of the
Grantor to do so shall not impair the validity of this Conservation Restriction or limit its
enforceability fa any way,

(d)	The Grantor hereby agrees with the Grantees that by execution and delivery of this
restriction, it has waived its right to build or develop additional structures on the Premises except
as specifically reserved in Section 3 (Reserved Rights) that are now or hereafter allocated to,
implied, reserved or inherent in the Premises, and the Grantor and Grantee agree that such rights
are terminated and extinguished and may not be used on or transferred to any portion of the
Premises as it now or hereafter may be bounded or described, or to any other Premises adjacent
or otherwise, nor used for the purposes of calculating permissible lot yield of the Premises or any
other premises (except to the extent reasonably required to permit the uses and activities
reserved to the Grantor under the terms of this Restriction).

9. Assignment by the Grantee.

The benefits of this Conservation Restriction shall be deemed to be in gross and the Grantees
and their successors and assigns shall have the right to assign their right, title and interest

hereunder.

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28699 32

10.	Binding Effect; Release; Recordation.

Hie burdens of this Conservation Restriction shall be deemed to ran with the Premises, in
perpetuity, shall be enforceable against the Grantor, the Grantor"! successors in title to the
Premises and assigns, and any person holding any interest therein, by cither Grantee, its
successors and assigns and its duly designated officers, employees or agents as holders of this
Conservation Restriction. This Conservation Restriction shall be in addition to and not in Ecu of
any other restrictions or easements of record affecting the Premises. This Conservation
Restriction may only be released, to whole or in part other than pursuant to Section 7, by a
Grantee pursuant to the procedures established by chapter 184, section 32 of the General Laws,
or any successor statute, role or regulation and in accordance with Article 97 of the Amendments
to the Massachusetts Constitution, and any other applicable law or regulation. Grantor and
Grantees agree that Chapter 184, section 32 of the General laws and Article 97 do not apply to
the sale, lease or transfer of the Grantor's retained interests, so long as said interests are
conveyed subject to this Restriction. The Grantee is authorized to record or file any notices or
instruments appropriate to assuring the perpetual enforceability of this Conservation Restriction;
and the Grantor on behalf of itself and its successors and assigns agrees to execute, acknowledge
and deliver any such instruments promptly upon request.

11.	Costs and Taxes.

Grantor agrees to pay and discharge when and if due any and all real property taxes and any
other betterment charges or assessments levied by applicable legal authority on the Premises.

12.	Estoppel Certificates.

Upon request by the Grantor, the Grantee shall within thirty (30) days execute and deliver to the
Grantor any document requested, including an estoppel certificate, -which certifies the Grantors'
compliance with any obligation of the Grantor contained in this Conservation Restriction, and
which otherwise evidences the status of this Conservation Restriction.

13.	Value of Uses; Severability; Counterparts

A.	The fact that any of the uses prohibited herein, or other uses not mentioned, may
become greatly more economically valuable than permitted uses, or that neighboring properties

may in the future be put entirely to such non-permitted uses, has been considered by Grantor in
granting this Restriction. It is the intention of both Grantor and Grantees that any such
changes will increase the benefit to the public of the continuation of this Restriction, and that any
such change should not be deemed to be changed conditions permitting termination or
amendment of this Restriction. The inability to cany on any or all of the above non-permitted
uses, or the absence of wildlife species, shall not impair the validity of this Restriction or be
considered grounds to terminate it.

B.	If any provisions of this Restriction or the application thereof to my person or
circumstance is found to be invalid, the remainder of the provisions of this Conservation

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28699 322

Restriction, and the application of such provisions to persons or circumstances other than those
as to which it is found to be invalid, shall not be affected thereby.

C. This Agreement may be executed in counterpart originals, each one of which shall be
deemed an original for all purposes, and any one of which with the signature pages of the others
affixed thereto, dull be deemed the entire original document for recording and for all other
purposes.

14, Amendment.

If circumstances arise under which amendment to or modification of this Restriction would be
appropriate, including, without limitation, as described in Section 4(b) above, Grantor and
Grantee may by written agreement jointly amend this Restriction; provided that tio amendment
may be made that would be inconsistent with the purposes of this Restriction, affect its perpetual
duration, or adversely affect any of the significant conservation values of the Premises. Any
such amendment shall be recorded with the Suffolk County Regjstiy of Deeds.

IN WITNESS WHEREOF, Thompson Island Education Center, Inc. and Thompsonlsland
Outward Bound Education Center, Inc. have executed this instrument this to day of ~Vf )r

2002.

(rule)

(Seal)



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28699 323

Commonwealth of Massachusetts ) Date: to too ^

County or ^/ul !"
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28699 321#

Exhibit A

Legal description of the Premises

All that land lying and bring situated in Boston Harbor, City of Boston, Suffolk County,
Commonwealth of Massachusetts known as Thompson Island as shown on a plan entitled "Plan of
Land Thompson Island Boston Harbor, East Boston, MA 02128" prepared for MA Department of
Environmental Management and the National Park Service, dated Febniaiy 19,2002 and prepared
by Coler & Colantonio, Inc., referred to herein as the Plan, being the Mine island conveyed by
George W. Beale to John Tappan, John D. Williams and Samuel T. Armstrong in a deed dated
November 16,1832 and recorded in Book 98, Page 246 in the Norfolk County Regsstty of Deeds
with a confirming deed recorded in the Suffolk Registry of Deeds in Book 391, Page 275 on June
4, 1835.

Legal Description of the Building Envelope within the Premises

The Building Envelope shown on the Plan is bounded and described as follows:

Beginning at a point on the western side of Thompson Wand, said point being five hundred feel
more or less, as scaled torn the Plan, southwesterly of the pier at the Mean Low Water line;

Thence northeasterly following said Mean Low Water line one thousand six hundred eighty-five
(1,685) feet more or less to a point;

Thence S 52° 51* 52" E two hundred seventy-five (275) feet more or to to a stone bound to be
set, said bound also bring the northeast comer of the variable width buffer strip located on the
western side of the island and shown on the Plan;

Thence continuing S 52° 51' 52" E three hundred fifty-nine and twenty-seven hundredths (359.27)
feet to a stone bound to be set;

Thence N 33" 34* 22"* E one hundred seventy-seven and twenty-one hundredths (177.21) feet to a
point;

Thence % a curve to the left with a radius of eighty-four and no hundredths (84.00) feet and a
length of one hundred twenty-two and no hundredths (122.00) feet to a point;

Thence by a curve to the right with a radius of twenty-two and no hundredths (22.00) feet and a
length of fifty and seven hundredths (50.07) feet to a point;

Thence N 81° 04* 12* E for eighty-one and eighteen hundredths (81.18) feet toa point;

Thence by a curve to the left with a radius of one hundred sixteen and ninety-three hundredths

(116.93) feet and a length of seventy and ninety-four hundredths (70.94) feet to a point;

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28699 325

Thence by a curve to the right with 8 radius of one hundred fifty and no hundredths (150.00) feet
and a length of thirty-four and sixty-six hundredths (34.66) feet to a stone bound to be set;

Thence S 13° 54* 11" E two hundred eighty-seven and sixty-seven hundredths (287.67) feet to a
stone bound to be set;

Thence S 24* 22* 58" E two hundred twenty-one and seventy eight hundredths (221.78) feet to a
stone bound to be set; said bound also being the northwest comer of fifty foot buffer strip on the
eastern side of the island us shown on the Plan;

Continuing S 24® 22* 58"* E one hundred eighty-four (184) feet more or less to the Mean Low
Waterline on the eastern side of the island;

Thence following said Mean Low Waterline southwesterly one thousand two hundred sixty (1260)
feet more or less to a point;

Thence N69°31' 10" W two hundred sixty-one (261) feet more of less to a stone bound to be set;
said bound also being the southwest comer of the fifty foot buffer strip on the eastern side of the
island as shown on the Plan;

Thence N 88s 25* 25" W four hundred seventy-four and sixty-four hundredths (474.64) feet to a

stone bound to be set;

Thence N 58" 00' 47" W four hundred thirty and sixty-six hundredths (430.66) feet to a stone
bound to be set; said bound also being the southeast comer of the variable width buffer strip on the

western tide of the island as shown on the Plan;

Continuing N 58® 00' 47" W two hundred twenty (220) feet more or less to a point at the Mean
Low Water line; said point being the point ofbeginnmg.

As shown on the Plan, the Building Envelope contains 45.09 acres more or less, calculated to
Mean Low Water.

As shown on the Plan, the total Island contains 240.51 acres, more or less, calculated to Mean Low

Water.

The above described island is designated as Tract 101-01 of the Boston Haibor Islands National
Recreation Area.

•.i

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"8699 326

Exhibit B
Thompson Island Access Plan

1. This /ff day of , 2002, Ihe Commonwealth ofMassachuseits acting

through the Department of Environmental Management (DEM), the United Slates of America
acting through the National Park Service (NPS), and Thompson Island Education Center, Inc.
(T1EC) hereby enter into this cooperative management agreement and Access Plan to manage
general public access to Thompson Island within the Park Area,

2. This Access Plan is incorporated into and made a part of the Conservation Restriction on
Thompson Island conveyed by TIEC to DEM and NPS dated .~Tute_ /0 . 2002 (herein the
"Restriction") (Ml defined terms used herein shall have the meanings given to them in the
Restriction.) The Restriction establishes key parameters and principles with respect to Escorted
and Unescorted Public Access which are expected to remain relatively constant over a period of
years; this Access Plan describes the current detailed agreement and procedures for the
administration of Escorted and Unescorted Public Access in close coordination with the
Grantor's ongoing educational programs, which current details contained in this Access Plan
shall remain in effect until modified by an amendment of this Access Plan.

3. This Access Plan may be refined and amended from time to time by mutual agreement of the
Grantor and Grantees in writing, consistent with the applicable provisions of the Restriction,
including, without limitation, the Education/Access Balance. It shall be reviewed annually or as
otherwise agreed by the parties, with ongoing input ftom and coordination with the Operations
and Education Committees of the Partnership.

4. It is recognized that patterns of visitation to the individual islands and the Park Area as a
whole are evolving. The Grantor and Grantee have agreed to restrict Unescorted Public Access
to both weekend days throughout the year and Summer Holidays (or portion of a weekend day or
Summer Holiday served by the UPA Ferry schedule) except on up to three (3) days in any
twelve month period to facilitate the programming of large events by the Grantor in accordance
with paragraph 9 below in order to minimize conflicts with ongoing educational programming.

If sufficient demand does not exist during the off-season winter months to justify the expense of
administration and supervision, after reasonable efforts by the Grantor, the Grantees and the
Partnership to make known the availability of the Island for seasonal activities such as cross-
country skiing through distribution of materials as described in paragraph 16 below, the
availability of Unescorted Public Access on winter weekends may be reduced by mutual written
agreement of the Grantor and Grantee,

5. The Premises may remain closed to Unescorted Public Access for a reasonable period of time
after the execution of the Restriction, not to exceed six months, in order to allow for appropriate

planning, staffing, or construction of any needed improvements.

6. (a) The Thompson Administrator shall manage the scheduling of the Grantor's educational

programs and both Escorted and Unescorted Public Access so as to achieve the
Education/Access Balance as defined in Section 4 of the Restriction, and subject to the

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requirements for Unescorted Public Access set forth in Section 4 of the Restriction and the
current Access Plan.

(b) For each weekend day and Summer Holiday, depending upon the number and nature of the
educational programs which are scheduled, the Thompson Administrator shall determine, in
his/her reasonable judgment, the number of people, who can be permitted Unescorted Public
Access without materially interfering with the educational programs or requiring additional
supervision. In determining this number, the Thompson Administrator shall take into account
the reasonable level of staffing required to protect the resources, and the details of the
educational values of each program scheduled to be conducted, distinguishing between those
programs which place a premium on solitude or preserving the uninterrupted atmosphere of the
natural environment, and those in which such values are less important.

(c) The Activity Areas will be o if limits to Unescorted Public Access at all times for safety
reasons. Unescorted Public Access is not permitted to the Sensitive Areas, except access to the

Bird Blind via the trial shown on the Plan across the Building Envelope, which is permitted, and
kayak access to the Saltmarsh originating outside the Saltmanh around the time of high tide.
Except in the case of unusual hazards, the shoreline and beaches shall always be open to
Unescorted Public Access, Escorted Public Access and to Beach Access. Escorted Public Access
to the Conservation Area, including the Activity Areas except Activity Areas which are in use,
and the Sensitive Areas, will be permitted on any day of the week, with advance approval,
consistent with scheduled educational programs and Unescorted Public Access in the reasonable
discretion of the Thompson Administrator. The Grantor reserves the right to post and close to all
Escorted and Unescorted Public Access to specific areas when conditions in such areas could
constitute a public safety hazard, or such areas that require protection from foot traffic from all
visitors and users of the Island, such as archeotogicai sites or areas of compacted soil, or to close
the entire Island to public access if necessary for safety reasons.

7. The Grantor may designate staff to register UPA visitors upon entering the Premises, and
provide a brief orientation on the Island's education programs, history of ownership, rules,
history, and points of interest and a description of the portions of the Conservation Area open to
UPA on such date and the conditions of such use. Boaters engaging in Beach Access shall not
be required to register or attend the orientation unless they hold a UPA Reservation, but they
shall not be permitted to access the Conservation Area other than the shoreline beaches unless
they hold a UPA Reservation. No Unescorted Public Access shall be allowed over the so-called
spit from Squantum at any time. The Grantor may only charge fees to cover transportation costs,
and for elective programs above and beyond Unescorted Public Access.

8. Subject to the exceptions set forth above, UPA Reservations up to fifty (50) persons per
weekend day may be made substantially in advance, but UPA Reservations In excess of fifty
(SO) shall be permitted only within ten (10) days in advance, based on the plans for educational
programs.

9. The Grantor reserves the right to proWWl Unescorted Public Access to the entire Conservation

Area on dap when UPA would otherwise be permitted, to facilitate programming for large
events which shall not exceed a total of three one-day events in any twelve-month period. The

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Grantor shall notify the Grantee no less than ten (10) days prior to such events. The Grantor
agrees to mike reasonable efforts to accommodate the scheduling of up to three (3) major Park-
wide events in any twelve month period, subject to arrangements for adequate staffing.

10. (a) The Grantor currently provides reliable, year-round, and regular means of ferry service
to the Wand, including a scheduled boat on Saturdays fa the summer from the Federal
Courthouse at the Fan Pier. The Grantor hereby agrees to supplement this Saturday service to
provide UPA Feny service by adding service on Sundays during the summer and on Summer
Holidays from such Fan Pier dock or a similarly accessible dock in the same general vicinity,
subject to required legal rights to use any such facility. The Grantor agrees to include this UPA
Feny service in the Park Area's water transportation schedule by publishing such UPA Feny
schedule and making it available for inclusion in promotional materials concerning the Park
Area to be prepared by the Partnership, the Grantor and the Grantees. Until any other
arrangement is agreed to in writing between the Grantor and the Grantees in accordance with the
following provisions of this paragraph 10, the Thompson feny shall constitute the sole approved
UPA Feny, which wall permit Thompson to ensure that only members of the public holding
UPA Reservations or Group Reservations may embark upon the UPA Feny. The Grantor (or any
contractor as the agent of the Grantor) may charge reasonable fees for such service consistent
with the Park Area's transportation fees, recognizing that the Grantor's feny is not subsidized by
public funds and that other feny services may be so subsidized.

(b) In the event that Thompson's UPA Ferry service is Inadequate to accommodate the number
of persons holding UPA Reservations, the Grantor and the Grantee agree to work in good faith
towards permitting one or more other ferries serving the Harbor Islands to be qualified as UPA
Ferries, subject to the development of a mutually agreeable system that ensures that only holders
of UPA Reservations on Thompson Island will be permitted to 0) board any ferry bound for
Thompson Island or (ii) disembark at Thompson Island, and subject to the condition of the pier
to safely accommodate any other ferry with differing characteristics and capabilities.

(c) The Thompson feny currently makes regular runs to the EDIC beith adjacent to the Black
Falcon Terminal to pick up and discharge staff and participants in educational programs.
Although that locaiion is not intended as a primary point of embarkation for Unescorted Public
Access, the Grantor agrees, subject to the availability of space after staff and program
participants for both the trip to the Island and the return trip, to pick up and discharge persons
holding UPA Reservations at the EDIC berth adjacent to the Black Falcon Terminal, with the
understanding that such persons may not be returned to the point of embarkation.

(d) In the event that members of the public identify themselves to the captain of any Thompson
ferry authorized to transport persons holding UPA Reservations, requesting transportation to the
Island to engage in Unescorted Public Access but without a UPA Reservation made in advance,
then provided that (i) such feny captain can reasonably verify that providing access to such
persons will not cause the number of persons permitted UPA during that time period to be
exceeded, (ii) such persons agree to be bound by all other conditions applicable to Unescorted
Public Access, and (in) space is available on the applicable ferry and any required return feny,
then in the reasonable discretion of the ferry captain, such persons may be permitted access for
Unescorted Pubtic Access on all the same conditions as would apply with a UPA Reservation.

¦¦fs

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28699 329

11. The Orantor shall maintain the Premises* existing pier in a safe and serviceable condition
consistent with the needs and economic capabilities of its educational and charitable mission,
and which will provide for general public access by a UPA Ferry as provided in paragraph 10
above, but the Grantor shall not be obligated to expend its own funds to modify the existing pier
to accommodate any other feny with differing characteristics and capabilities.

12. The Grantor dull provide a minimum of three (3) publicly available moorings for private
boats and charge a reasonable fee, or provide the service as a Park Ares concession. Any
additional publicly available moorings shall be determined by mutual agreement of the Grantor
and Grantee.

13. The Grantor has the right to provide appropriate management of public access and use, and
the Thompson staff shai! have the right to terminate the UPA Reservation and status of any
person who does not conform to established rules and practices for Unescorted Pubtic Access,
but the Grantor shall have no obligation to provide supervision beyond giving the orientation
presentation described in the definition of Unescorted Public Access. The Grantees shall be
under no obligation to provide such management or supervision. The Grantor agrees to
cooperate with the Grantees in the event that the Grantees wish to provide staffing in connection
with the management and supervision of Unescorted Public Access.

14. The Grantor shall provide toilet facilities accessible to UPA visitors within the Conservation

Area substantially as presently provided at both the reception area and at the south end of the
Island.

15. The Grantor shall install appropriate signage, including an orientation kiosk or other facility
and interpretive waysides, consistent with the Park Area standards and fa a welcoming spirit for
visitors.

IS. The Grantor will cooperate with the Grantees and the Partnership in public information and
marketing to increase public visitation and utilization of education programs. The Grantor shall
provide to the Grantees copies of any materials intended for public dissemination pertaining to
the public's use of the Conservation Area. The Park Area logo and other similar and reasonable
marketing protocols adopted by the Park Area or the Partnership of which notice is given to the
Grantor mil be incorporated with reasonable promptness into all materials primarily related to
Unescorted and Escorted Public Access and Thompson's role in the Park Area, talcing into
account the reasonable utilization of existing materials.

17. As the Grantor maintains and expands its existing educational programming, the Grantor and
the Grantees shall attempt to include other Boston Harbor islands in the Grantor's activities and
programs, as appropriate, in order to reinforce the connections between the islands of the Park
Area.

18, In addition to the periodic review under paragraph 3 above, this Access Plan shall also be
reviewed and revised, as appropriate, if the Grantor ceases to operate the Premises primarily for
educational programming, or if the Grantor conveys the Premises to a party other than one or
both of the Grantees, or in the event of other material changes in circumstances. In the event

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28699 330

thai the use of the Premises becomes primarily one or more of the Permitted Uses thai does not
include education of members of the as a primary part of its purposes and mission such that the
Conservation Area is no longer betng used for educational programming. Unescorted Public
Access shall be permitted to the entire Conservation Area on weekends, except the Sanative
Areas because of their environmental sensitivity and potential hazards, subject to reasonable
limitations necessary to protect and conserve the natural beauty and ecological resources of the
Conservation Area, as reasonably determined by the Thompson Administrator and the Park
Project Manager in consultation with the DEM Manager. In such event. Unescorted Public
Access nay be permitted to any portion of the Conservation Area except the Sensitive Areas oa
weekdays subject to the provision of reasonable supervisory staffing by the Grantees. In such
event. Unescorted Public Access may be permitted to any portion of the Conservation Area
except the Sensitive Areas on weekdays subject to the provision of reasonable supervisoiy
staffing by one or more of the Grantees or, if the Grantor, its successors or assigns so elects and
Grantees agree, by the Grantor, it successors or assigns

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Exhibit C- I or2

The Secretary of the Interior** Standards for the Treatment of Historic Properties
Kay D. Weeks and Anne E Grimmer

US. Department of the Interior
Nttiotul Park Service
Cultural Resource Stewardship and Partnerships
Heritage Preservation Services
Washington, D.C
1S95

Page 62, Standards for Rehabilitation

1. A property will be Msed as it w^historicalty or be ®ven a rxw use that requires minimal change
to its distinctive materials, features, spaces, and spatial relationships.

2. The historic character ofa property will be retained and preserved. The removal of distinctive

materials or alteration of features, spaces and spatial relationships that characterize a property will
be avoided.

3. Each property will be recognized as a physical record of its time, place and ttse. Changes tin!
create a false sense ofhistorical development, such as adding conjectural features or dements
from other historic properties, will not be undertaken.

4. Changes to a property that has acquired historic significance in its own right will be retained and
preserved.

5. Distinctive materials, features, finishes and constroction techniques or examples of craftsmanship
tha characterize a property will be preserved.

6. Deteriorated historic features will be repaired rather lhan replaced. Where the severity of
detcrioral ion requires replacement ofa distinctive feature, the new feature will match the old in
design, color, texture, and, where possible, materials. Replacement of missing features will be
substantiated by documentary and physical evidence.

7. Chemical of physical treatments, ir appropriate, wilt be undertaken using the gentlest means
possible. Treatments that cause damage to historic materials will not be used.

8. Anheological resources will be protected and preserved fai place, IfsudiRsafficeaiQistbe
disturbed, mitigation measures will be undertaken.

9. New Additions, cxteri«alta^lioru, or related new coratructioowii! not destroy historic
materials, features and spatial relationships that characterize the property. The new work shall be
differentiated from the old and wUl be compatible with the historic materials, features, size, scale
and proportion and massing to protect the integrity of Use property and it environment.

10. New additions and adjacent or related new caostniction will be undertaken in such a manner that,
if removed in the future, the essential form and integrity of the historic property and it
environment would be unimpaired.

«?.

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28699 332

Exhibit C-2of 2

The Secretary of (lie Interior's Standards for the Treatment of Historic Properties
Kay D. Weeks and Anne E Grimmer

US, Department of the Interior
National Park Service
Cultural Resource Stewardship and Partnerships
Heritage Preservation Services
Washington, D.C
1995

Page 166, Standards Tor Reconstruction

1. Reconstruction wiU be used to depict vanished or non-sarviviag portions of a property when
doaanentay and physical endefltt is available to permit accurate roco6tstroctioo with minima]
conjecture and such reconstruction is essential to the public understanding of the property.

2. Reconstruction of a landscape, building, structure, or object in its historic location will be
preceded by a thorough arehcologieal investigation to identify and evaluate those features and
artifacts, which are essentia! to an accurate reconstruction. If such resources must be disturbed,
mitigation measures will be undertaken.

3. RoeoostnictionwiU include mcastsi«s to preserve any remmi^g historic materials, features and
spatial relationships.

4. Reconstruction will be based on the accurate duplication ofhistoric features and elements
substantiated by documentary or physical evidence rather than on conjectural designs or the
availability of different features from other historic properties. A reconstructed property will re-
create the appearance of the non-surviving historic property id materi ib, design, color and
texture.

5. A reconstruction will be clearly identified as a contemporary re-crcation.

6. Designs that were never executed historically will r»t be constructed.

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28699 333

Exhibit D:

"Height of building" as defined In Article 2, Section 1, Definition #23 of The
Boston Zoning Code and Enabling Act, as amended through December 31,1897.

Height of Building, the vertical distune from grade to the top or ths highest point of the
roof beams of a flat roof, or the mean level of the highest gable or of the slope of a hip roof,
excluding rocfstructures and penthouses normally built above the roof and not used or designed
to be used for human occupancy, provided that the total area of such roof structures and
penthouses does not exceed 33-1/3 percent of the roof area; except that, for any proposed Project
that (a) is subject to Article 31 and (b) is within a downtown district established under Section 3-
1C, "height of building" means the vertical distance from grade to the top of the structure of the
last occupied floor. A mansard roof shall be considered a flat roof.

PABOS2JKESSLE:434«0_l *

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Kimi Wei

13-08 Sperber Road #B

P 0 Box 626

Fair Lawn, NJ 07410

Public comment submitted to the National Environmental Justice Advisory Council (NEJAC) public
meeting, August 19-20, 2020:

Environmental Justice is a topic important to me personally, as a mother and as a US resident. It is
important to clean up pollution for everyone, but especially lower-income families, and families of color,
like mine who are exposed to more of the impacts of environmental pollution than whiter and/or more
affluent community members.

I did not have asthma as a child, but began to experience it in my early twenties as the world, and my
home state of New Jersey, became more polluted. My younger son also has asthma. I have no doubt
that this is a consequence of being exposed to heavy air pollution. New Jersey is one of the most densely
populated states, with enormous transportation traffic due to containing and being near several ports,
having a very robust highway system and being in the path of traffic moving along the East Coast
corridor as well as traffic moving in and out of New York City and to a lesser extent, Philadelphia. I have
lived within 10 miles of New York City and about half an hour's highway driving distance from Newark
and Elizabeth, most of my life.

I suffer with health issues that are indirectly related to the body stressors of pollution and also the
terrible dual impact of mold and extreme heat in the apartment in which I raised my family and still live,
where the landlord is not legally obliged to correct either black mold conditions in our apartment or to
provide electrical current sufficient to modern living or enough to power air conditioning strong enough
to comfortably cool our apartment. Our apartment has only 2 fuses of 15 and 20 amps - with the 20
amps powering the kitchen and the 15 amps powering the entire balance of our apartment. Situated in a
very warm pocket geographically, temperatures on hot days hover around 90^ even with our one 6500
BTU air conditioner and 2 fans to circulate the cooling it puts out, operating at full speed. Sometimes the
temperature in our apartment has risen over 100^ - even with the air conditioner running. We found
out the hard way that we lack enough amperage to power a second air conditioner when we purchased
one and blew out our fuses several times when both were running. In our apartment, we cannot even
run the microwave and toaster oven at the same time. And we must turn off our one air conditioner
before using either kitchen appliance in order to avoid blowing the fuses - and also damaging our
electrical appliances which are subject to damage when attempting to run on electrical current that is
insufficient.

In order to use our laser printer, we must also turn off the air conditioner to avoid overloading the fuses.

For years, we had horrible recurring incidents of black mold invading our apartment. It grew through the
electrical receptacles, up walls and ate away at the bathtub grout and tiling to the point that the wall
collapsed one day. The inner wall behind the tiles was solid black from the amount of mold covering its
surface. Two plumbers and a phone line installer told my family that there was a standing pool of water
several inches deep in our basement - which is not accessible to tenants - and one plumber said that
pipes were broken within our walls so waste bathwater was not being carried to the outside of our
building, but was being dumped on the basement floor.

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My landlord did not attempt to stop the moisture issues that led to us having so much mold for many
years during which my two sons and I were repeatedly sick. Whenever a big mold breakout occured, I
would develop bronchitis which often led to pneumonia, my older son would become debilitated and
my younger son would experience overall health problems and difficulty breathing. Eventually, I
complained to so many town officials and administrators about this problem that my landlord felt
embarrassed enough to fix the main sources of moisture. We still have mold and still have moisture, but
our mold situation is much better than it used to be.

Although I tried for many years to force our landlord to upgrade our electrical current to support
adequate air conditioning and to resolve the moisture problems that led to mold, I was only partly
successful with the latter. And I stirred up a tsunami of hostile repercussions from my landlord that
almost broke me as a person, and that robbed my family of the possibility of having a peaceful and
secure home life. Over one two-year period, our landlord sued us for eviction 11 times, and was able to
collect extra fees of over $250 every time he did. So, on top of excessive heat and black mold exposure,
not being able to cook nutritious meals for several months a year and our entire family suffering health
problems due to our living conditions, we were also constantly threatened with eviction and made to
pay extra rent if we were even a few days late with payments. We have suffered through this nightmare
for many years and only moving to a living situation with a caring and responsible landlord, in an area
with less air pollution, will bring it to an end.

As far as ongoing health problems:

I have been exposed to so much heat in our apartment that I now develop heat stroke whenever I am
exposed to temperatures over 85^ for extended periods of time. I always experience bouts of heat
stroke in the summer, which can last for up to several weeks.

Without cooking, the temperatures and air quality in our apartment are barely tolerable, meaning that it
becomes impossible to cook healthy food during periods of high heat. Adding even a few degrees of
heat, and the moisture from cooking, has an enormous, negative impact on our family members' health.
I have been a professional chef and am able to cook extremely nutritious meals at a cost low enough for
my single parent family to afford. It is grossly unfair that I am denied the ability to produce nutritious
meals every summer because of our extreme heat condition.

I learned last year that I suffer from osteoarthritis in my knees, a condition which is partially caused by
inflammation to the body over time. Asthma, mold and heat have caused me to be subjected to ongoing
inflammation. I was forced to seek physical therapy when the weakening of my knee ligaments crippled
me. The impact on my health of being barely unable to walk and move around has had a phenomenal
negative effect:

I have been unable to regulate my blood sugar and along with the long exposure to high blood sugars, I
developed a heart condition which required emergency surgery last year and I have now developed
temporary blindness in one eye. I hope this can be resolved through treatment I am receiving from a
retinopathy practice.

The illness that my sons have experienced, the lack of nutritious food during summers all their lives, and
the terrible despair of watching their mother's health deteriorate due to our substandard living
conditions and fear over what will happen to me next, have been a traumatic burden for them.

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In summary, the severe health issues my family members have suffered have largely been visited upon
us because we are poor and live in sub-standard housing that is maintained to the bare minimum
standards for the landlord and his agents to avoid legal penalties.

Exposure to extreme heat is an environmental justice issue. Asthma, bronchitis and pneumonia that are
related to housing and geography are environmental justice issues. Health problems related to black
mold caused by unrelenting moisture which is left untreated because the law does not require
remediation - are environmental justice problems. The larger environmental problems of living in a
suburb of Paterson, NJ and New York City and in northern New Jersey near several major highways
where the air quality is poor, and adjacent to the heavily polluted Passaic River, have added insult to our
housing related health injuries.

It is essential that landlords and polluters be made to clean up the local and regional messes they make
out of both housing and neighborhoods. Legislation must be enacted that provides for legal
consequences to be assessed against polluters and negligent landlords that create hazardous living
conditions that are damaging and dangerous to the health of people forced to live with them. The
consequences must make it imperative for the people behind the companies that cause the damage, to
stop doing so by imposing penalties so severe, including heavy fines and jail time for the individuals
causing or allowing violations to occur, that they will want to stop the pollution and negligence and
monitor carefully to make sure they never happen again.

People's lives should not be destroyed because of conditions arising from either environmental pollution
or administrative negligence.

Respectfully submitted,

Kimi Wei

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Hearthjustice

August 14, 2020

1 Submitted electronically to nejac@epa.gov

Chairman Richard Moore

National Environmental Justice Advisory Council
Office of Environmental Justice

U.S. Environmental Protection Agency [Mail Code 2201A]

1200 Pennsylvania Avenue, NW Washington, DC
20460

Dear Chairman Moore and Members of the National Environmental Justice Advisory Council:

This letter details concerns regarding EPA's implementation of the risk evaluation process under
the Toxic Substances Control Act ("TSCA"). In 2016, Congress amended a largely ineffective TSCA and
established a new mandatory process to systematically evaluate and manage chemical risks. We believe
that if the new statute were implemented correctly, it could provide important benefits for
communities and populations that are most exposed or most susceptible to toxic chemicals. However,
current implementation of the risk evaluation process violates the letter and spirit of the law. For this
reason, we ask the National Environmental Justice Advisory Council ("NEJAC") to issue a
statement urging EPA to identify, and consider the impact of chemicals on all potentially exposed
and susceptible subpopulations, consider all "conditions of use" and exposure pathways for the
chemicals evaluated, and refrain from considering workers' use of personal protective equipment
at the risk evaluation stage.

1. TSCA mandates a comprehensive review of a chemical's exposures and risks.

The risk evaluation process has three steps. Step one, prioritization, where EPA chooses batches
of "high-priority" chemicals. 15 U.S.C. § 2605(b)(l)(B)(i). Step two, risk evaluation, during which EPA
comprehensively evaluates a chemical's exposures and risks and determines whether the chemical
substance presents or will present an unreasonable risk of injury, without consideration of costs. 15
U.S.C. § 2605(b)(4)(A). The final step, risk management, which requires EPA to impose restrictions to
eliminate unreasonable risk. 15 U.S.C. § 2605(c).

EPA was required to skip over the lengthy prioritization phase for the first ten chemicals, which
the Agency selected without a transparent process. Of the first ten chemicals, two risk evaluations have
been completed, and the remaining eight will likely be completed by the end of the year. EPA is also in
the early stages of "step two," risk evaluation, for twenty high-priority chemicals it selected in late
2019.

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Ill

For each chemical evaluated, TSCA requires EPA to consider risks across the chemical's life
cycle. This includes all known or foreseeable conditions of use, including manufacture, processing,
distribution, use, disposal, and even after initial disposal if the chemical is still

NORTHEAST 48WALLSTREET, 15™ FLOOR NEWYORK,NY10005
T : 2 1 2 . 845 . 73 7 6 F : 2 1 2 . 9 1 8 . 1 5 5 6 NEOFFICE@EARTHJUSTICE.ORG WWW.EARTHJUSTICE.ORG

resulting in exposure. This lifecycle-based review reflects TSCA's comprehensive approach to chemical
risk management that considers the full extent of human or environmental exposure, including risks
from chemical exposures that are or could be regulated under other laws. Further, EPA must separately
consider risks to "potentially exposed or susceptible subpopulations," or groups that "due to either
greater susceptibility or greater exposure" may face greater risks of harm than the general population
from chemical exposures. 15 U.S.C. § 2605(b)(1)(A); § 2602(12). If these subpopulations face
unreasonable risk, EPA must regulate those risks, even if the risk to the general population is not
unreasonable.

2. Current TSCA implementation ignores chemically-overburdened communities.

These factors all bear greatly on environmental justice. Unfortunately, recent EPA
determinations highlight that the agency is not living up to the mandates of TSCA, to the detriment of
communities and groups who experience high exposure to toxic chemicals. As required by TSCA, EPA
recently released "draft scopes" for the twenty chemicals it designated as high-priority. These draft
scopes are required to outline the factors EPA intends to consider when conducting risk evaluations. 15
U.S.C. § 2605(b)(4)(D). However, EPA did not properly identify the potentially exposed or susceptible
subpopulations it expects to consider. Instead, EPA ignored the heightened exposure of the
communities located in geographic proximity to high-volume chemical facilities, particularly
communities in highly industrial regions, including: the Greater Houston area; Port Arthur, Texas;
Mossville, Louisiana and neighboring towns; and communities along the Mississippi River between
Baton Rouge and New Orleans in the area known as Cancer Alley. Further information about how this
lack of analysis is a detriment to these communities can be found at "Comments on Draft Scopes of the
Risk Evaluations for the First Twenty High-Priority Substances under the Toxic Substances Control Act."1

3. The methylene chloride risk evaluation ignores highly exposed communities, underestimates
worker exposures, and misapplies assumptions about worker personal protective equipment.

EPA has also recently completed its first risk evaluation under the new law - for methylene
chloride, a toxic solvent that causes cancer, and is also so acutely toxic that users can die
instantaneously when using the chemical without proper ventilation. EPA found that methylene
chloride does not present an unreasonable risk of injury to workers, due primarily to unfounded
assumptions that workers will have access to, and will perfectly use, well-fitting personal protective
equipment, and a failure to consider the potential for an individual to be exposed to multiple conditions
of use. Additionally, EPA found no unreasonable risk when methylene chloride is manufactured and

1 Earthjustice et al., Comments on Draft Scopes of the Risk Evaluations for the First Twenty High-Priority
Substances under the Toxic Substances Control Act (2019),

https://earthiustice.org/sites/default/files/files/20 05 26 tx la tsca first 20 hp appx rfs.pdf.

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disposed of, ignoring the exposures to dangerous levels of the chemical that communities surrounding
manufacturing and disposal sites, such as Freeport, Texas and Geismar, Louisiana, experience.

The NEJAC should support chemically overburdened communities and workers by urging
proper implementation of TSCA.

EPA continues to make determinations under TSCA that are not protective of human health, or
the communities most greatly affected by toxic chemicals. We are asking that NEJAC work with us to
make sure that EPA lives up to the mandates of TSCA. We ask that NEJAC advise EPA to:

1) identify all potentially exposed and susceptible subpopulations and conduct separate
analyses to determine if these chemicals pose an unreasonable risk to these groups;

2) consider all "conditions of use" and exposure pathways for the chemicals evaluated, and
refrain from excluding uses based on the theory that they might be regulated by other laws;
and

3) stop considering workers' use of personal protective equipment at the risk evaluation
stage.

We also offer our team as a resource to the NEJAC related to any TSCA risk evaluation issues.

Respectfully submitted,

Lakendra S. Barajas

Earthjustice

New York, New York

(212) 284-8025

lbaraias(5)earthiustice.org

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ENVIRONMENTAL
TRANSFORMATION
MOVEMENT OF FLINT

August 21, 2020

Chairman Richard Moore

National Environmental Justice Advisory Council
Office of Environmental Justice
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, DC 20460

Dear Chairman Moore and Members of the National Environmental Justice Advisory Council (NEJAC):

This letter is in reference to NEJAC's March 2019 report, EPA's Role in Addressing the Urgent

Water Infrastructure Needs of Environmental Justice Communities, and the council's earlier letter to EPA
Administrator Andrew Wheeler about the Flint water crisis. We first wish to express our thanks to the
council for bringing attention to Flint in both the report and the letter. As you are well aware, the EPA's
failure to act expeditiously when evidence of water contamination began to emerge in Flint was a
significant factor in prolonging the water crisis, leading to avoidable harms to infrastructure and public
health, and exacerbating the injustice suffered by residents. We hope that NEJAC can be part of the
ongoing process of repairing residents' broken trust in the EPA and other federal agencies.

We are also grateful that NEJAC is lifting up broader issues of infrastructural breakdown, water
contamination, and water affordability. We wish to affirm our support for the aforementioned report's
central recommendations, especially its calls to treat water as a human right, provide more federal
funding for water infrastructure, promote water affordability, discontinue water shutoffs and tax liens,
develop sustainable alternatives to large-scale bottled water provision in cases of contamination, and
encourage community participation in planning, policymaking, and water monitoring. As for the EPA's
general attitude toward environmental enforcement, we agree with the report that the agency must be
proactive, especially when public health is at risk. In the case of Flint, the EPA did not issue a Safe
Drinking Water Act Emergency Order until January 21, 2016, despite almost a year's worth of indications
of serious water contamination and despite receiving a petition to do so from the Natural Resources
Defense Council and ACLU in partnership with local activists in October 2015. We believe it is better for
the EPA to overstep on occasion than it is to leave affected communities to seek redress from state
enforcement agencies that have proven to be unreliable and nonresponsive, particularly when appeals
for federal help are coming directly from residents.

www.etmflint.org
etmflint@gmail.com
@ETMFIint

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In some respects, the water situation in Flint has improved considerably since NEJAC's letter to the

Administrator in July of 2017, thanks in no small part to the efforts of EPA staff on the ground in Flint to
restore water quality. Nevertheless, Flint continues to experience major challenges in the provision of
clean, safe, and affordable water, as well as lingering health impacts that will last for decades. In many
ways, the Flint water crisis is not over. To help summarize where things stand today, we take this
opportunity to return to the recommendations made in NEJAC's letter— recommendations which, we
note with disappointment, do not seem to have garnered an official response.

1. Close monitoring by EPA Region 5 of Michigan's use of Drinking Water State Revolving
Funds received in the aftermath of the Flint crisis to ensure that resources are spent effectively
to eliminate lead throughout its public water system.

In late 2016, Congress appropriated $100 million through the Water Infrastructure Improvements
for the Nation (WIIN) Act to address Flint's urgent water needs, money that was to be administered
through the State of Michigan's Drinking Water State Revolving Fund (DWSRF). The plan the City of
Flint submitted for these funds proposed to use $20 million of the appropriation to cover the cost of
service line replacement, with another $20 million provided as matching funds by the state. The
same month this money became available (March 2017), the state and city reached a settlement
agreement in a lawsuit brought by residents, Concerned Pastors for Social Action v. Khouri, which
required the state to allocate another $47 million of non-WIIN money for service line replacement.
This settlement continues to determine what funds are spent on pipes and provides the main
framework of accountability around the replacement program. Regrettably, it has proven necessary
more than once to use the legal leverage it offers to pressure the city to manage this program more
efficiently and responsibly, and work that should have been completed by now is still ongoing (see
#4 below). Furthermore, with respect to eliminating lead "throughout [Flint's] public water system,"
it is important to remember that lead service lines are not the only sources of lead within that
system. Other potential sources of lead exposure within internal plumbing remain unaddressed by
the infrastructural work completed or planned so far in Flint.

It is also important to realize that the City of Flint has proposed to use the vast majority of available
DWSRF funds for projects which, while important, are not directly related to lead elimination. Due
to factors ranging from mismanagement, to lack of capacity, to the COVID-19 pandemic, many of
these other projects have been delayed. As of February 2020, the city had submitted
reimbursement requests for less than $13 million of the $100 million WIIN appropriation. While the
EPA has asked repeatedly that the city speed up the implementation of its proposed projects, and
has encouraged the state Department of Environment, Great Lakes, and Energy (EGLE) to exercise
similar oversight, to date this pressure has not been adequate. There are some indications that the
current city administration is redoubling efforts to move water projects forward, but serious
concerns about the non-usage of federal funds remain.

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2. Reviewing MDEQ's tests of Flint resident water samples to determine if (non-lead and non-
copper) water-borne bacterial contaminants and water treatment chemicals are contributing to
new or emerging individual and public health concerns.

NEJAC was right to suggest in its letter that water quality concerns in Flint extend beyond lead-
indeed, the framing of the Flint water crisis as a "lead-in-water" crisis has had the effect of
marginalizing and obscuring many of the issues that led to public outcry about the water in the first
place. While the bulk of the EPA's water quality work in Flint has focused on reducing lead levels
through optimized corrosion control treatment, the agency has done at least some work on other
kinds of water quality issues. In 2016, it participated in a unified coordination group (UCG)
comprised of federal, state, and county agencies formed to evaluate the prevalence and causes of
water-related rashes in Flint. The UCG's research was not able to establish a clear connection
between the water and rashes, but the data it generated had some significant limitations, and the
UCG did speculate that some rashes developed prior to 2016 may have been related to high

levels of chlorine in the water. The EPA has also provided support around sampling for total
trihalomethanes and coliform bacteria, with special attention to the presence of contaminants that
may be related to skin irritation.

Insights into other contaminants of note have had to come from elsewhere, however. With respect
to bacteria, the State of Michigan funded a major study of the presence of legionella contamination
in the water system in 2016 and 2017, but the team conducting this research ultimately experienced
severe pushback from the state itself, hampering its work and leading to criminal charges being filed
against two of the state officials involved. Some Flint residents continue to feel that the prevalence
and potential health effects of legionella and other contaminants beyond lead have not been fully
investigated, and the EPA's decision to award multiple grants to Dr. Marc Edwards of Virginia Tech,
who has aggressively attacked scientists, Flint residents, and others who have conducted research
into or raised concerns about these contaminants, has contributed to the impression that the
agency is on the wrong side of this issue.

3. Funding by the EPA of a multi-year grant to Flint health agencies to evaluate blood-lead
levels in Flint residents to assess if lead exposure from public water is decreasing at a rate
consistent with required improvements in public drinking water quality.

We are not aware of any such grant being awarded. Available data suggests that on average child
blood-lead levels in Flint reached historic lows as early as 2016, although it may be that the
population-wide rush to get tested at the time was partly responsible for the decline, since
bloodlead testing is usually administered primarily to children in higher-risk categories. It is also
important to remember that blood-lead data are inherently limited by the fact that not all ages of
children are consistently tested for lead, as well as the fact that lead leaves the blood within a
month's time. Furthermore, the harms done by lead do not go away just because lead exposure has
ceased. The generation of children that was exposed to leaded water in Flint has already begun to
evidence signs of behavioral issues and learning disabilities, emphasizing how great the need is for
ongoing educational, nutritional, and medical assistance to residents.

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4. Investigating how the State of Michigan and City of Flint can expedite the pace of lead pipe
replacement so as to occur sooner than 2020.

While Flint has made great strides in this area, having replaced at the time of this writing more than
90% of its known lead and galvanized steel service lines, the replacement process has been plagued
by much unnecessary delay and inefficiency. From a logistical perspective, there is no good reason
why the process was not complete by the end of 2018. Instead, at least 2500 properties still remain
to be excavated. Although the city is now promising it will finish replacements by the end of
November, concerns remain about residents falling through the cracks: some whose homes are
eligible for pipe replacement have not been reached by outreach efforts, some have opted out of
the replacement program due to misunderstandings and mistrust, and some who consented to
excavation years ago have yet to be taken care of. Furthermore, we worry about properties without
active water accounts (one of the criteria for replacement) and homes that are currently vacant but
may become occupied sometime in the future. While the EPA has at times offered some general
advice about service line replacements and has asked that the city speed up its work, as far as we
know it has not played a substantive role in ensuring that the work is done competently and
efficiently. Instead, this role has been taken on primarily by parties to the legal settlement—
principally the Natural Resources Defense Council—by academics working on service line
identification, and by residents themselves.

5. Encouraging the State of Michigan to continue assisting Flint residents with water
affordability through water bill credits and operation of water-bottle stations.

By the time NEJAC sent its letter, the State of Michigan had stopped providing the 65% water bill
credit it offered residents through February 2017, and it did not resume the practice at any point
thereafter. It also began to scale back its support for water bottle point-of-distribution sites (PODS),
before finally withdrawing that support completely in April 2018, despite the fact that many
residents continue to rely on bottled water. Private, charitable, water provision—primarily by the
Nestle corporation, ironically, which at the same time is extracting Michigan groundwater virtually
for free at an aggressive pace—was all that was left to fill at least some of the gap left behind by
government. With the availability of free point-of-use filters and cartridges also waning, the
significance of ready access to bottled water is only magnified for many residents. We are not sure
what kind of EPA "encouragement" to keep the PODS open may have taken place behind closed
doors, but on the surface residents received little support from the EPA when the state began
withdrawing this kind of assistance.

6. Assessing state water agency funding mechanisms, operations and maintenance processes,
and procedures to ensure they are prepared to monitor and support large water infrastructure
projects.

(See #7 below)

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7. Requiring state water regulators to provide corrective action recommendations,
coordinated plans, schedules, and budgets detailing how they will resolve public health and
affordability concerns, including an assessment of effective and timely resolution of these
concerns - all of which should be factors in EPA decisions to continue or approve future State
Drinking Water Revolving Funds to the state from the federal government.

The EPA's emergency order of January 21, 2016 reflected the agency's conclusion that neither the
city nor the state were taking the necessary steps to protect public health in Flint and that both
were in need of technical assistance and oversight. The order put into place numerous reporting
requirements, stipulations about how water was to be treated and distributed in Flint, and a
mandate that the state establish an independent advisory council comprised of water experts and
members of the community to make recommendations relating to the management of Flint's water
system. To the EPA's credit, it has remained in ongoing communication with the state and city about
their compliance with the terms of the order and their progress toward implementing infrastructure
projects and ensuring public health. Nevertheless, as indicated above, this oversight has not always
translated into effective planning and implementation.

More generally, the community is still in need of assurances that the state department of
environmental quality (now called EGLE) is being run in a manner that reflects principles of
environmental justice. In January 2017, the EPA's External Civil Rights Compliance Office (ECRCO)
released a historic ruling on a 1992 civil rights complaint brought against the

MDEQ/EGLE's predecessor department, finding that the department had engaged in racial
discrimination during its permitting process for the Genesee Power Plant, a waste incinerator on the
border of the city of Flint. The ECRCO found that the discriminatory treatment stemmed from deep-
seated structural shortcomings within the department, including a lack of "procedural safeguards"
and a defined plan for public participation—shortcomings, said the office, that were passed down
across different incarnations of the department and that may have contributed to the Flint water
crisis.

Indeed, the water crisis spawned its own civil rights complaint that raised similar issues around
discrimination and participation. This complaint resulted not in any specific ruling but in an Informal
Resolution Agreement between the EPA and EGLE in December 2019. In this agreement, EGLE
points to a number of reforms to state government and initiatives coming out of the water crisis
which, while not necessarily inspired by the complaint, it claims will mitigate the concerns raised
therein. These include the creation, under Governor Rick Snyder, of an Environmental Justice Work
Group, an Environmental Justice Ombudsman, and an Environmental Justice Interagency
Workgroup, as well as implementation of environmental justice training for state and local
employees. EGLE also points to reforms within the department itself under current Governor
Gretchen Whitmer, including the creation of an Interagency Environmental Justice Response Team,
an Office of the Clean Water Public Advocate, and an Office of the Environmental Justice Public
Advocate, all of which are supposed to promote environmental justice planning and facilitate

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118

receiving and acting upon complaints and concerns from the public around drinking water and other
environmental issues.

The ECRCO is continuing to monitor EGLE for compliance with the agreement. Ironically, however,
given the agreement's emphasis on transparency and participation, we are not aware of any
reporting out to Flint residents about the resolution of the civil rights complaint, nor is it clear how
the ECRCO's assessment of EGLE's compliance will be communicated to residents moving forward.
The ECRCO should take concrete and timely steps to follow up with residents about this matter and
outline how it intends to enforce the agreement.

8. Convening a multi-stakeholder working group to develop water policies that ensure water
affordability for every household and income group in the community, including impacted
community members, local utility representatives, experts on utility law structure, state agency
employees, and EPA representation from both regional offices and headquarters.

The EPA did not, to our knowledge, convene such a group. The closest example of this sort of thing
was the Water Rates Subcommittee of the Flint Water Interagency Coordinating Committee
(FWICC), a group of experts set up by Governor Rick Snyder in January 2016, and the main group
advising the state on its crisis response. (Incidentally, FWICC—which included representatives from
the city but not from the "community," per se—did not, in our view, fulfil the stipulation of the EPA
emergency order about forming an inclusive advisory council, and reflected technocratic thinking
about whose views mattered most within the crisis response.) In its final report, released in July
2017, FWICC's rates subcommittee called for "a comprehensive and independent review of the
state's approach to regulating the water sector, including a focus on water rates and affordability,"
and recommended among other things the creation of a statewide water bill-payment assistance
program. As NEJAC members are no doubt aware, however, there is a difference between
assistance and affordability. Activists in Flint (along with allies in Detroit) have been calling for many
years for affordability plans like the one described in the council's infrastructure report.
Conversations about the future possibility of such a plan have been arranged at the local level by
the C.S. Mott Foundation and by local activists, but residents still await substantive policy change.
Decisions around water rates, as well as other aspects of water management, continue to be
obscure to the average resident, and many residents still have trouble paying their water bills.

While Flint is in some ways better off now than it was in 2017, it still has many needs that have not been
adequately addressed by the EPA or any other government agency. In addition to the challenges
mentioned above, Flint's water system and water utility are in desperate need of further investment
and support. Flint's wastewater infrastructure is in even worse shape than its drinking water
infrastructure: according to Flint's Director of Public Works, it is on the verge of "catastrophic failure"
(which would, quite possibly, impact drinking water quality in turn). Moreover, despite the EPA's
repeated expressions of concern about the staffing of Flint's water utility, the city is still having great
difficulty attracting and retaining experienced and competent personnel, and those who do work for the
utility often come in from outside the community. Communication between residents and the water
department is hardly any better now than it was at the peak of the water crisis, and the city has yet to
establish the water system advisory council now mandated by state law. With respect to funding Flint's

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119

water system sufficiently, training water staff (ideally from within the community), and providing
support for public participation, there is still much to be done.

For all of these reasons, we welcome the EPA's support, and we hope that NEJAC will continue to lift up
Flint's struggle and hold the EPA accountable for acknowledging and following through on any
recommendations. We hope it will also encourage the agency to consult with Flint residents on an
ongoing basis about their needs and concerns. Flint residents have consistently shown that they are
ready and willing to work with those government agencies that operate in good faith, listen carefully to
resident perspectives, and commit to transparent and inclusive approaches to communication and
decision-making. With NEJAC's help, we hope we can continue to build that kind of relationship with
federal partners moving forward.

Sincerely,

Mona Munroe-Younis

Executive Director

Environmental Transformation Movement of Flint

Benjamin J. Pauli

President of the Board of Directors

Environmental Transformation Movement of Flint

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Chemosphere 260 (2020) 1276.9

Contents lists avai::
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121

Disposal of PFAS-containing wastes creates
repeated cycles of
contamination.

Consumer products and various materials
discarded in landfills leach PFAS overtime.
Wastewater treatment can transform PFAS
and increase measurable PFAS concentration.
Incineration of PFAS wastes can release toxic
air pollutants and greenhouse gases.
Monitoring and eliminating all PFAS releases
into the environment are essential.

The cyclical problem of PFAS disposal

articleinfo

Article history:

Received 22 April 2020

Received in revised form

6 July 2020

Accepted 7 July 2020

Available online 11 July 2020 Handling

Editor: Myrto Petreas

Keywords: Waste disposal per- and
polyfluoroalkyl substances PFAS
Landfill leachate

Wastewater treatment

Waste incineration

abstract

Per- and polyfluoroalkyl substances (PFAS), highly stable and persistent chemicals used in numerous industrial applications
and consumer goods, pose an exceptionally difficult challenge for disposal. Three approaches are currently available for PFAS
wastes: landfilling, wastewater treatment and incineration. Each disposal approach can return either the original PFAS or
their degradation products back to the environment, illustrating that the PFAS problem is cyclical. Landfilling and wastewater
treatment do not destroy PFAS and simply move PFAS loads between sites. Consumer products and various materials
discarded in landfills leach PFAS overtime, and landfill leachate is commonly sent to wastewater treatment plants. From
wastewater treatment plants, PFAS are carried over to sludge and effluent. Sewage sludge can be landfilled, incinerated, or
applied on agricultural fields, and PFAS from treated sludge (biosolids) can contaminate soil, water, and crops. Incineration of
PFAS-containing wastes can emit harmful air pollutants, such as fluorinated greenhouse gases and products of incomplete
combustion, and some PFAS may remain in the incinerator ash. Volatile PFAS are emitted into the air from landfills and
wastewater treatment plants, and research is urgently needed on the potential presence of PFAS compounds in air emissions
from commercially run incinerators. Monitoring of waste streams for PFAS, stopping PFAS discharges into water, soil and air
and protecting the health offence-line

Abbreviations: PFAS, per-and polyfluoroalkyl substances; PFOA, perfluorooctanoicacid; PFOS,
perfluoroctanesulfonate.

* Corresponding author.

E-mail addresses: tstoiber@ewg.org, tstoiber@ewg.org (T. Stoiber), Sydney, evans@ewg.org (S. Evans),
olga@ewg.org (O.V. Naidenko).

https://doi.Org/10.1016/j.chemosphere.2020.127659 0045-6535/© 2020
Published by Elsevier Ltd.

communities close to the waste disposal sites are essential to mitigate the impacts of PFAS pollution on human health.

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1. Introduction

Discovery of widespread environmental contamination with per- and polyfluoroalkyl substances (PFAS),
particularly in drinking water, brought urgency to the issue of PFAS removal and disposal. There are
thousands of various per- and polyfluoroalkyl substances, with more than 600 compounds in commercial
use in the United States (United States Environmental Protection Agency, 2020a). PFAS are highly
persistent and stable substances that have been used for decades. The types of PFAS-containing
products are extremely diverse. Consumer products like stain- and water-resistant carpets, textiles,
clothing, packaging, food wares, and even cleaning products and personal care products contain PFAS
(Danish Environmental Protection Agency, 2018; Kotthoff et al., 2015; Lang et al., 2016; Schaider et a I.,
2017). Many industrial materials are manufactured with PFAS, such as PFAS-based aqueous film forming
firefighting foam and aerospace, automotive and medical products (Cousins et al., 2019; Hi al.,

2018; Zhu and Kannan, 2020). These products and materials end up in landfills, wastewater treatment
plants or incinerators e or might be directly discarded or discharged into the environment. In addition to
PFAS in consumer waste, there are industrial discharges of PFAS into waterways and industrial PFAS air
emissions (Becker et al., 2008; Sunderland et al., 2019). The PFAS pollution in rivers and oceans is a
source of constant, harmful exposure for wildlife (Guillette et al., 2020).

Extensive research demonstrates that exposure to PFAS can harm human health (Agency for Toxic
Substances and Disease Registry, 2018; Grandjean, 2018; Sunderland et al., 2019; Temkin et al., 2020).
Complex mixtures of PFAS occur in water, soil, and air and accumulate in people and other living
organisms. In epidemiological studies, exposure to PFAS, particularly perfluorooctanoic acid (PFOA) and
perfluoroctanesulfonate (PFOS), is associated with changes in hormonal balance and thyroid function,
weakened immune response, increased cholesterol and harm to the developing fetus (Agency for Toxic
Substances and Disease Registry, 2019). In human and animal studies, exposure to PFAS increases the
risk of cancer. The most-researched PFAS, and possibly the entire PFAS class, exhibit key characteristics
of carcinogens such as induction of oxidative stress, immunosuppressive effects, alterations in hormonal
receptor-mediated signaling as well as epigenetic alterations and increased cell proliferation (Ternkin et
al., 2020).

Waste management researchers in the U.S. and in other countries are starting to investigate the fate
and transport of PFAS in various disposal processes (Toskos et al., 2019; United States Environmental
Protection Agency, 2020b). In landfills, wastewater treatment processes, and the environment generally,
PFAS precursors such as fluorotelomer-based coatings on carpet, clothing and food wrappers can be
biologically transformed to smaller, more mobile PFAS (Arvaniti and Stasinakis, 2015; Hamid et al., 2020;
Lang et al., 2016). These smaller compounds such as PFOA, PFOS, perfluorohexanoic acid,
perfluorobutyric acid and many other shortand long-chain PFAS resist further breakdown and are
environmentally persistent. As of July 2020, there are no national-level regulations governing PFAS
disposal in the United States, except for military applications. PFAS-containing wastes have not been
classified as hazardous in the U.S. and enter the waste cycle without special consideration for the
persistence, mobility, and toxicity of this family of chemicals.

With the availability of more sensitive analytical methods, testing conducted by government agencies
and independent scientists revealed that PFAS contamination in drinking water is more common than
what was previously estimated (Stoiber et al., 2020). The contamination of drinking water with PFAS

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illustrates the persistent and repetitive problem of PFAS disposal, as the current or former waste
disposal sites themselves can become sources of water contamination (Fig. 1).

At different locations, distinct sources of PFAS pollution can impact drinking water, alone or in
combination (Galloway et a I., 2020). PFAS contamination may be due to current discharges of
industrial or municipal wastewater (Arvaniti and Stasinakis, 2015; Coggan et a!., 2019; Letcher et a I.,
2020; Masoner et a!., 2020), or due to previous industrial discharges and landfilling of industrial
wastes (Eggen et all., 2010; Hepburn et a I., 2019; Lang et a!., 2017; Wei et a!., 2019; Yan et a I., 2015).
States such as Michigan are starting to identify old, inactive landfills that may release PFAS from
materials and wastes discarded decades ago, beginning when PFAS were first manufactured in the
1940s (Michigan Waste & Recycling Association, 2019). Systematic testing is necessary to identify all
historical landfilling sites that might leach PFAS. Past use of PFASbased firefighting foam at airports
and military installations is another source of water contamination. Finally, several studies reported
the presence of PFAS in snow and rain and documented the contribution of atmospheric transfer to
global PFAS contamination (Chen et al., 2019; Muir et al., 2019; Wang et al., 2019; Xiie et a I., 2015).
The ubiquitous detection of PFAS in soils across the world illustrates the long-range transport of PFAS
(Brusseau et al., 2020).

Communities whose water supplies were contaminated with PFAS turn to PFAS removal technologies
such as granular activated carbon, ion exchange, or reverse osmosis (Appleman et al., 2014; Firanke et
al., 2019). Every treatment option produces PFAS-laden wastes, such as carbon or ion exchange media
with absorbed PFAS or reverse osmosis concentrate (also called reverse osmosis "reject water") with
elevated PFAS levels (Stoilber et al., 2020). With that, drinking water systems must dispose of spent
treatment media and reject water containing concentrated PFAS waste. Installation of PFAS-removing
technologies for drinking water cleanup would likely become more common as government agencies
in different countries and U.S. states adopt health-based guidelines and regulatory standards for PFAS
in drinking water. New Jersey's drinking water standards, the first stringent standards set in the U.S.,
were set at 13 ng/L each for PFNA and PFOS, and 14 ng/L for PFOA (New Jersey Department of
Environmental

Protection, 2020). California, Michigan, Massachusetts, Vermont, New Hampshire, and New York have
proposed or implemented state regulatory limits that are more stringent than the U.S. Environmental
Protection Agency's lifetime health advisory level of 70 ng/L for PFOA and PFOS.

In sum, the PFAS disposal problem is not just a waste management issue; it is a consequence of the
social and industrial choices that are the cause of PFAS discharges to the environment. The complex
issue of PFAS disposal points to the necessity of managing all PFAS as a class (Cousins et al., 2020;
Kwiatkowski et al., 2020), as well as of limiting PFAS production overall to prevent

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Fig. 1. Examples of sources that can contribute to the PFAS pollution of drinking water.

environmental contamination and protect public health (Cousins et al,, 2019).

2. The cyclical problem of PFAS disposal

In this discussion paper, we review recent studies on the fate and transport of PFAS following disposal
and highlight the cyclical problem of PFAS generation and disposal. The three disposal pathways for
PFAS materials e landfilling,. wastewater treatment, and incineration e are interconnected,
transferring PFAS, PFAS degradation products, or, in the case of incineration, products of incomplete
combustion, from one site to another. Both active and old landfills store decades of consumer wastes
with a mixture of PFAS chemicals (Masoner et al., 2020; Michigan Department of Environment Great
Lakes and Energy, 2020b). The long-term safety of landfill disposal for PFAS is uncertain, as PFAS
polymers can break down overtime into smaller, more mobile species (Washington and Jenkins, 2015;
Washington et al., 2015, 2019). There are also concerns about landfill stability in the potential future
scenarios of greater annual precipitation and heavier storms due to climate change (United States
Environmental Protection Agency, 2014).

Landfill leachate is often transferred to wastewater treatment plants (Masoner et al., 2020; Michigan
Waste & Recycling Association, 2019), while sewage sludge from wastewater treatment may be
transferred to landfills or incinerated. Wastewater effluent can have higher levels of detectable PFAS
compared to influent, suggesting that, in the course of wastewater treatment, PFAS are transformed
into smaller, more mobile species (Coggan et al., 2019). Treated sewage sludge (commonly called

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"biosolids" in the U.S. (United States Environmental Protection Agency, 1994)) also carries high levels
of PFAS (Letcher et al., 2020; Venkatesan and Halden, 2013). Heat treatment and composting further
increase the concentration of measured, mobile PFAS (Kim Lazcano et al., 2019). If applied on fields,
PFAS from treated sewage sludge can contaminate soil and water and contribute to PFAS pollution in
the local ecosystem. Finally, various types of incinerators de facto burn PFAScontaining wastes, and
the ash ends up in landfills (Solo-Gabriele et al., 2020). Incineration of PFAS-containing materials can
release products of incomplete combustion (Toskos et al., 2019; United States Environmental
Protection Agency, 2020b), posing a risk of air, water, and soil contamination for nearby communities.

New technologies are under development for remediating PFAS contamination in aqueous media, such
as groundwater, drinking water sources, and landfill leachate. Existing studies describe the application of
electrochemical oxidation (Niu et al., 2016; Schaefer et al., 2017; Yang et al., 2019); advanced reduction
processes (Cui et al., 2020); plasma-based technology (Lewis et al., 2020; Singh et al., 2019a,fa);
ultrasound-based sonolysis technologies (Campbell and Hoffmann, 2015; Campbell et al., 2009; Gole et
al., 2018; Laramay and Crimi, 2019; Vecitis et al., 2008) and UVbased treatment (Vecitis et al., 2009) for
the destruction of PFAS. While these advanced treatments successfully degrade PFAS in pilot studies,
their effectiveness for complex wastes and other types of media such as contaminated soils, sediments,
and sewage sludge needs further research (Pillai et al., 2019; Ross et al., 2018; Wei et al., 2019). We
direct the readers to excellent reviews on these advanced treatment technologies (Cui et al., 2020; Lu et
al., 2020; Merino et al., 2016; Nzeribe et al., 2019; Ross et al., 2018; Wei et al., 2019) and, for the rest of
this discussion, focus on the data for the three disposal processes currently applied for PFAS: landfilling,
incineration, and passage through wastewater treatments.

3. Landfill disposal

Around 140 million tons of municipal solid waste is discarded in landfills annually in the United States

(United States Environmental Protection Agency, 2017). Municipal waste includes a mixture of PFAS-
containing consumer items such as PFAS-coated food packaging material and food wares as well as
stain- and water-resistant upholstery, textiles, clothes and carpets either treated with PFAS or
manufactured with PFAS-containing materials (California Department of Toxic Substances Control, 2019;
Lang et al., 2016; Schaider et al., 2017). Some PFAS-based products sent to landfills, such as PFAS-
containing paints, varnishes, and sealants, originate from both residential settings and industrial
applications. In addition to post-consumer waste, landfills also accept wastewater sludge that can serve
as a reservoir for PFAS release (Letcher et al., 2020; Venkatesan and Halden, 2013).

3.1. PFAS in landfill leachate

Landfill leachate is a heterogenous mixture of compounds that must be captured and treated to avoid
groundwater pollution (Masoner et al., 2014, 2016; Renou et al., 2008). In the United States, landfills
constructed since 1993 must have a liner and leachate collection system (United States Environmental
Protection Agency, 1993). PFAS presence in landfill leachate has been documented in studies conducted
in the United States and other countries

(Table 1).

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A 2017 study of 18 U.S. landfills reported that total measured PFAS concentrations in leachate reached
up to 66 mg/L (Lang et a!., 2017). The study found climate may affect leachate concentrations through
changes in both biological activity and physical leaching in landfills (Lang et a I., 2017). Similar
concentration ranges for individual PFAS were reported in other U.S. studies of landfill leachate (Allred
et al., 2015; Huset et al., 2011; Michigan Waste & Recycling Association, 2019). A 2015 study from China
reported that the total concentration of perfluoroalkyl acids in leachate from five municipal landfills
ranged from 7 to 292 mg/L (Yan et al., 2015). A 2020 study from China reported measured PFAS levels of
22e46 mg/L for leachate from municipal solid waste landfills and transfer stations, while leachate from
municipal solid waste stored at incinerator sites had PFAS concentrations of 86e98 mg/L (Wang et al.,
2020).

A study in Australia reported differences in PFAS leaching from landfills of different age as well as higher
mean concentrations of PFAS in leachate from landfills that contained construction and demolition
debris compared to municipal solid waste landfills (Gallen et al., 2017). Similarly, a study in the U.S.
reported differences in PFAS content in leachate from distinct landfill types such as municipal solid
waste, construction and demolition, and ash

Table 1

Studies reporting PFAS measurements in landfill leachate.

landfills for ash from municipal solid waste incinerators (SoloGabriele et al., 2020). Leachate collected
from construction and demolition landfills had higher levels of perfluorohexanesulfonate (compound
with 6 fluorinated carbons), which could be due to its use in sealants and water repellants in building
materials (SoloGabriele et al., 2020). In contrast, leachate from ash landfills had lower PFAS
concentrations, possibly due to PFAS destruction and volatilization during the incineration process
(Solo-Gabriele et al., 2020). PFAS concentrations were the lowest in leachate from landfills which
accepted the ash from incineration facilities that, among facilties in the study, operated at the highest
temperatures (Solo-Gabriele et al., 2020).

In a recent review of leachate studies, Wei et al. (2019) reported that perfluorinated carboxylic acids
and perfluorinated sulfonic acids are the most frequently detected PFAS (Wei et al., 2019). Shorter
chain PFAS with 4e7 fluorinated carbons are more abundant in landfill leachate compared to longer-
chain PFAS (Busch et al., 2010; Fuertes et al., 2017; Huset et al., 2011; Yan et al., 2015). Biological
degradation, a process that occurs in landfills, during wastewater treatment and in the environment
generally, can convert PFAS precursors into short-chain compounds (Haniicl et al., 2020; Rhoads et al.,
2008). In a 2010 study in Germany, 4carbon fluorinated compounds perfluorobutyric acid and
perfluorobutane sulfonate accounted for more than half of the sum of PFAS measured (Busch et al.,
2010). Two U.S. landfill leachate studies reported the prevalence of 5:3 fluorotelomer carboxylic acid,
which is an intermediate degradation product between fluorotelomer substances and perfluoroalkyl
acids (Lang et al., 2017; Solo-Gabriele et al., 2020). Following aeration treatment of leachate, the
concentration of 5:3 fluorotelomer carboxylic acid decreased while the concentration of
perfluoropentanoic acid (compound with 5 fluorinated carbons) increased (Solo-Gabriele et al., 2020).

With the phase-out of the 8-carbon fluorinated compounds PFOA and PFOS, manufacturers are
switching to shorter chain PFAS alternatives, and these compounds increasingly contribute to the
waste stream. While less studied, toxicity risks of short-chain PFAS remain a concern (Kabadi et al.,
2020; Rice et al., 2020). Short-chain PFAS have higher aqueous solubility and mobility and are harder

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to remove from water compared to longer chain PFAS due to weaker adsorption of short-chain PFAS
to GAC and ion exchange resins (Khan et a I., 2020; Li et a I., 2020). Additionally, the increased solubility
of short-chain PFAS will result in increased mobility in waste streams.

3.2. Concerns about groundwater contamination

Landfill leachate collection systems should, by design, prevent groundwater contamination.
Nevertheless, landfill runoff and leakage remain a concern, especially for mixed landfills that had
received industrial waste in the past. In the United States, PFAS

groundwater contamination from older landfills has been reported in the states of Michigan,
Minnesota, and Vermont. Investigations of groundwater in Vermont near landfills revealed detections
of PFAS at all sites sampled, and PFAS were detected in drinking water sources near two unlined
closed landfills (Vermont Department of Environmental Conservation, 2018; 2019). The state of
Michigan investigated over 20 landfill and dump sites where groundwater levels exceed 70 ng/L for
PFOA and PFOS (Michigan Department of Environment Great Lakes and Energy, 2020a). PFAS

Country

Number of landfills in the study

Number of PFAS tested

Sum of PFAS concentrations reported, untreated leachate (rounded)

Australia (Gaiien etai.,. 2017)

0.2e46 mg/L

China (Yan etai.,. 2015)

7.3e292 mg/L

China (Wangetai.,. 2020)"

22e39 mg/L

Germany (Busch et al.,. 2010)

0.03el3 mg/L

U.S. (Langetai.,. 2017)

0.3e66 mg/L

U.S. (Solo-Gabriele etai.,. 202.0)"

2.8el8 mg/L

This study also reported PFAS levels in leachate from two municipal solid waste transfer stations and two incinerators. bThis study analyzed leachate from different landfill types: construction
and demolition; municipal solid waste; waste incineration ash; combined construction and demolition and municipal solid waste; and combined municipal solid waste and waste incineration ash
landfills.

contamination has been documented in groundwater near landfills in Minnesota, with the highest
levels near unlined municipal landfills that had received industrial waste (Minnesota Pollution Control
Agency, 2010; Oliaei et al., 2006). In the Minnesota study, elevated levels of PFOA were measured in
groundwater downgradient from both unlined and lined landfills, demonstrating groundwater
transport of PFOA regardless of landfill type. A study in Australia suggested that a high ratio of PFOA
to total perfluoroalkyl acids may be an indicator of groundwater contamination with PFAS due to
leaching from municipal landfills (Hepburn et al., 2019).

In response to concerns about PFAS and other emergent contaminants in landfill leachate, landfill
operators are exploring options for on-site advanced treatment of leachate (Eggen et al., 2010; Wei et
al., 2019). The use of separation technologies such as activated carbon, ultrafiltration and reverse
osmosis have been reported for landfill leachate (Busch et al., 2010; Yan et al., 2015), although matrix
effects due to the complex nature of leachate may reduce the effectiveness of treatment processes
(Wei et al., 2019). After landfill leachate treatment, PFAS-loaded carbon media or filtration
concentrate with elevated PFAS levels require disposal or destruction. Some landfills dispose of
leachate via injection to wells located near the landfill or elsewhere (Michigan Waste & Recycling
Association, 2019; Solo-Gabriele et al., 2020). More research and greater transparency about this
disposal practice are urgently needed given that injection of PFAS wastes is already happening for
landfill leachate (Markley, 2019; Michigan Waste & Recycling Association, 2019; Texas Molecular,

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2020) and for industrial wastewater from fluorochemical production facilities (Markley, 2019;

Michigan Waste & Recycling Association, 2019; Texas Molecular, 2020).

3.3. PFAS air emissions from landfills

In addition to the release of PFAS into landfill leachate, PFAS also volatilize into the air above the
landfill. Studies in Canada, Germany and China reported the presence of PFAS in the air over landfills
(Table 2). In the existing studies, 8:2 fluorotelomer alcohol was the predominant airborne PFAS
reported (Ahrens et al., 2011; Tiian et al., 2018; Wang et a 1., 2020; Weinberg, 2011). The prevalence of
neutral PFAS such as fluorotelomer alcohols in air emissions is consistent with their greater volatility
compared to perfluoroalkyl acids (Ahrens et al., 2011; Tiian et al., 2018).

Overall, the detection of PFAS in air emissions indicate that landfills, especially currently operating
landfills, act as a source of atmospheric PFAS pollution (Tiian et al., 2018). More research is needed to
address PFAS air emissions from historical landfills that no longer operate, as well as from different
landfills types.

Table 2

Summary of studies reporting PFAS detections in air above landfills.

Country

Number of landfills in the study

Number of PFAS tested

Total PFAS concentration reported (rounded)

Canada (Ahrens eta!.,. 2011)

2.8e26 ng/m3

China (Ti'an et al.,. 2018)

up to 9.5 ng/m3

China (Wang et al.,. 2020)

1.6e33 ng/m3

Germany (Weinberg,. 2011)

0.08e0.7 ng/m3

4. PFAS in wastewater

Wastewater treatment plants receive liquid PFAS-laden waste from several sources, including municipal
wastewater, leachate from landfills, and industrial wastes. Conventional wastewater treatment
processes cannot remove PFAS (Chen et al., 2018; Schultz et al., 2006). Over the course of wastewater
treatment, biological and physical processes can transform precursor PFAS compounds into smaller,
more mobile PFAS (Arvaniti and Stasiinakis, 2015). A study in Germany found that wastewater treatment
plants, especially those accepting industrial waste, were major sources of PFAS pollution to rivers
(Becker et al., 2008). A U.S. study found the number of municipal wastewater treatment plants in source
watersheds is one of the predicting factors for the detection of PFAS in drinking water (Hu et al., 2016),
although another study did not detect such correlation (Boone et al., 2019).

Comparing the results of two recent studies conducted in the U.S (Masoner et al., 2020) and in Australia
(Coggan et al., 2019), we note that the reported concentrations of total PFAS were higher both in
influent and in effluent in the U.S. study (Table 3). While the U.S. study monitored a greater number of
PFAS than the study in Australia, there also might be country-specific differences in PFAS load sent to
wastewater treatment systems. In a European study of 90 wastewater treatment plants, PFOA was the
most frequently detected PFAS in effluent, with a median concentration of 255 ng/L and a maximum of
15,900 ng/L (Loos et al., 2013).

4.1. PFAS transformation and air emissions from wastewatertreatment

Several studies have reported elevated levels of PFAS following wastewater treatment. A study
conducted in the U.S. reported that concentrations of PFOA and 6 other measured PFAS were greater in

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effluent compared to influent (Masoner et a I., 2020). Similarly, a study in Australia reported significant
increases in measured PFAS concentrations between influent and effluent (Coggan et a!., 2019). The
increase in the concentrations of small, mobile PFAS following the passage through wastewater
treatment plants is likely due to the biodegradation of precursor compounds into perfluorinated
carboxylic acids and perfluorinated sulfonic acids (Schultz et a I., 2006).

Like landfills, wastewater treatment plants are also a source of PFAS air emissions, especially during
aeration treatment (Table 4). A study conducted in Canada estimated that total mass of PFAS discharged
in wastewater effluent was 2el0 times greater compared to air emissions released from wastewater
treatment plants (Ahrens et a I., 2011). Nevertheless, air emissions from wastewater treatment sites
likely play a role in long-range transport of perfluorinated carboxylic acids from the emission of
fluorotelomer alcohols (Ahrens et a!., 2011). Another study found that the treatment type and duration
may increase the percentage of perfluoralkyl acids in the total PFAS in air emissions by increasing the
degradation of precursors (Shoeilb et a!., 2016). Vierke et al. reported that PFAS air emissions were
higher over aeration tanks compared to secondary clarifiers due to the greater aerosolization caused by
turbulence within the aeration tank (Vierke et al., 2011).

Table 3

Studies reporting PFAS measurements in wastewater.

Country Number of wastewater facilities in Number of PFAS Sum of PFAS concentration in the influent Sum of PFAS concentration in the effluent

the study tested (rounded) (rounded)

Australia (Coggan eta!.,.

9e412 ng/L

34e517 ng/L

2019)

Australia (Nguyen et al.,.

31e219 ng/L

not analyzed

2019)

China (Zhang etal., 2013)

0.04e91 ng/L

0.01el07 ng/L

European Union (Loos et

not analyzed

50,107 ng/L

al., 2013)

812 ng/L b

Sweden (Eriksson et al.,.

41e97 ng/L

31e78 ng/L

2017)

U.S. (Schultz etal.,. 2006)

39el32 ng/L

38el24 ng/L

U.S. (Masoner et al.,. 2020)

1030e3360 ng/L

330e2110 ng/L

The sum of maximum measurements for 7 individual PFAS in the study.

The sum of average measurements for 7 individual PFAS in the study.

Table 4

Summary of studies reporting PFAS detections in air above wastewater treatment plants.

Country

Number of wastewater facilities in the study

Number of PFAS tested

Total PFAS concentration reported (rounded)

Canada (Vierke et al., 2011, 2013)

3.3e33 ng/m3"

Canada (Shoeib et al., 2016)

0.04e4.6 ng/m3b

Germany (Weinberg et al., 2011)

O.lel ng/m3

Range reported for high volume air samples of gas-phase taken over aeration tank,
b Range reported for summer and winter measurements on-site at urban and rural facilities.

PFAS air emissions also correlate with the size of the population served by the wastewater treatment
plant (Shoeib et al., 2016). This finding makes sense given that a larger population uses and disposes of a
greater quantity of PFAS-based products and materials.

4.2. Landfill leachate discharge to wastewater treatment plants

Landfill leachate can contain higher concentrations of PFAS compared to wastewater (Table 1, Table 3).
However, municipal wastewater releases, due to their large volume, may release an overall greater mass

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of PFAS into the environment. A study of five wastewater treatment facilities in the U.S. reported that
PFAS levels in effluent from wastewater treatment facilities receiving landfill leachate were similar to
those that did not receive landfill leachate (Masoner et a!., 2020). Total PFAS levels in leachate were ten
times higher than wastewater influent or effluent samples, but the landfill leachate transferred to the
wastewater treatment plants in the study only represented around 18% of daily mass of measured PFAS
in those plants (Masoner et al., 2020).

Similarly, a study in Australia reported the contribution of PFAS from leachate was small compared to
the PFAS load from domestic wastewater (Gallien et al., 2017). A study in Germany reported that
leachate represented only approximately 1% of mass flow of PFAS to wastewater treatment plants
(Busch et al., 2010). However, the same study noted that high PFAS concentrations at landfill sites could
be a potential source of local PFAS pollution (Busch et al., 2010).

4.3. PFAS release from wastewater treatment: biosolids andwastewater effluent

In the United States, millions of dry tons of treated sewage sludge, commonly called biosolids, are
applied on agricultural fields every year (Baptista and Perovich, 2019; California Department of Toxic
Substances Control, 2019; National Research Council, 2000; United States Environmental Protection
Agency, 1999). While biosolids transfers nutrients such as nitrogen and phosphorus to the fields, this
practice also transfers PFAS contamination to soils, water, and the crops (Washington et al., 2010; Yoo et
al., 2009, 2011). Alternatives to the agricultural application of biosolids e landfilling or incineration of
wastewater sludge e also have significant environmental drawbacks (Fig. 2).

Partitioning of PFAS to solids/sludge in the wastewater treatment plant increases with increasing
chain length (Coggan et al., 2019). A study in Germany reported that about one-tenth of the load of
PFOA and about half of PFOS arriving with the influent to the wastewater treatment plant ended up in
sludge (Becker et al., 2008). A U.S. survey based on biosolids collected in 2001 reported that, in that
time frame, PFOS was the most commonly detected of 13 PFAS measured with an average of 403 ng/g
dry weight (Venkatesan and Halden, 2013). A study in Australia measured 9 PFAS in biosolids from 14
different wastewater treatment plants reporting total PFAS concentrations in the range of 5.2el50
ng/g (Gallien et al., 2018). With the concern about PFAS contaminants in sewage sludge, some states in
the U.S. are requiring PFAS testing of biosolids (Vermont Department of Environmental Conservation,
2019) or have suspended agricultural application (Maine Department of Environmental Protection,

2019).

PFAS have been shown to accumulate in plants grown in biosolid-amended soils (Yoo et al., 2011). A
2013 study conducted in the U.S. reported that perfluorobutanoic acid and perfluoropentanoic acid
accumulated in lettuce and tomatoes grown in soil amended with biosolids (Blaine et al., 2013). In
2019, the U.S. Food and Drug Administration reported detections of PFAS in seafood, meat and
vegetables, especially leafy greens (United States Food and Drug Administration, 2019). PFAS
chemicals were detected in milk from a dairy farm in Maine that had historically applied biosolids to
fields (Maine PFAS Task Force, 2020). The application of PFAS-contaminated biosolids on the fields
leads to contamination to crops and livestock, as well as polluted runoff that transfers PFAS pollution
further afield (Lasier et al., 2011). In addition to PFAS, other toxic contaminants may be present in
biosolids, such as metals and persistent organic pollutants (Kinney et al., 2006).

In addition to land application, biosolids may also be incinerated

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SLUDGE INCINERATION

Fig. 2. Transfer of PFAS-laden sewage sludge from wastewater treatment plants to landfills, incinerators, as well as agricultural land and crops.

or sent to landfills for disposal, typically a mixed use landfill that accepts municipal solid waste as well
(Environmental Protection Agency, 2003). Landfilled biosolids likely release PFAS into landfill leachate,
which may be sent back to the wastewater, creating a circular transfer pathway for PFAS moving
between landfills and wastewater treatment plant. For the incineration route, as discussed in Section
5, questions remain regarding the incomplete combustion of PFAS and ash disposal.

Under the current circumstances whereby wastewater influent carries PFAS, treatment of wastewater
effluent to decrease PFAS concentrations and/or remove PFAS all together may be necessary before
the effluent can be recycled for irrigation or groundwater recharge (Page et al., 2019; Szabo et al.,

2018). Wastewater sludge, due to its complex nature, is difficult to treat. Heat treatment, commonly
applied to sewage sludge to inactivate pathogenic organisms, increases perfluoroalkyl acid
concentrations (Kim Lazcano et al., 2019; Yu et al., 2009). Much more research is needed on the
methods for PFAS sequestration in wastewater treatment. For example, research is ongoing on the
potential use of polymer coagulants that may bind PFAS to sludge and remove it from effluent (Simcik,

2019). Ultimately, reduction of PFAS in wastewater effluent and in biosolids requires reducing both
direct and indirect entry of PFAS materials into the wastewater from all sources, including industrial
discharges (Michigan Department of Environment Great Lakes and Energy, 2020b; Simcik, 2019).

5. Incineration of PFAS-containing materials

The chemical stability of the carbon-fluorine bond poses a challenge for PFAS destruction via
incineration approaches (Tsang et al., 1998). Around 12%, or 34 million tons, of the municipal solid
waste in the United States is incinerated annually at about 75 municipal solid waste incinerators,
operating primarily in the northeastern part of the U.S. (United States Environmental Protection
Agency, 2017; 2019). In addition to municipal waste incineration, there are over 200 dedicated
facilities for sewage sludge incineration (United States Environmental Protection Agency, 2003), as
well as facilities for hazardous waste and medical waste incineration (Kemsley, 2017; National
Research Council, 2000). As the U.S. EPA noted in a technical brief published in February 2020, the
fate and transport of PFAS during incineration are not yet well understood (United States
Environmental Protection Agency, 2020b).

PFAS incineration or thermal treatment is de facto happening, either directly for PFAS-based materials
such as firefighting foam (Hogue, 2020), or indirectly through incineration of waste containing PFAS

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such as textiles or biosolids (California Department of Toxic Substances Control, 2019; Hufaer et a!.,
2009; Khan et al., 2020; Solo-Gabriele et all., 2020; Taylor et all., 2014). Thus, a better understanding of
the fate and transport of PFAS in the incineration process is urgently needed.

Similar to other PFAS studies, incineration studies monitor a limited number of compounds, leaving the
question of "unmonitored" PFAS unanswered (Ellis et al., 2003). Most existing studies are limited to
highly controlled laboratory conditions and report on a specific number or subset of analytes. Several of
these studies report that PFAS incineration under controlled conditions does not release the most-
studied PFAS such as PFOA (Aleksandrov et al., 2019; Taylor et al., 2014; Yamada et al., 2005). There are
also reports that specific PFAS, like PFOA, PFOS, and related compounds can be broken down with
incineration (Khan et al., 2020; Krusic and Roe, 2004; Vecitis et al., 2009).

Laboratory experiments have not addressed the full scope of potential PFAS byproducts that could form
during the combustion of PFAS wastes in commercial or municipal incinerators. Both academic studies
and government agency reports have raised concerns that PFAS incineration can release ozone-
depleting chlorofluorocarbons, fluorinated greenhouse gases such as tetrafluoromethane,
hexafluoroethane, fluoro-dioxins, fluoro-benzofurans, fluorinated aromatic compounds and
perfluorinated carboxylic acids (California Department of Toxic Substances Control, 2019; Ellis et al.,
2001; Feng et al., 2015; Hufaer et all., 2009; Merino et all., 2016). In 2003, a study from Canada noted that
incineration of fluoropolymers can release a "plethora of unidentified and previously unreported
materials, thermolysis products that await characterization" (Ellis et al., 2003). A study in Japan
investigated the fate of PFAS during thermal reactivation of granular activated carbon with absorbed
PFOA, PFOS and 6-carbon perfluorohexanoic acid, reporting that after treatment at 700 C, a significant
portion of the original compounds was converted to volatile species that escaped the final analysis
(Watanabe et al., 2018). The specific profiles of fluorinated organic compounds released depend on
incineration temperatures and operating conditions (Garcia et al., 2007; Wang et al., 2013). Thus, while
thermal treatment at temperatures of 1000 C and higher can destroy PFAS, data from full-scale, actively
operating incinerator facilities are needed to assess the impacts of PFAS incineration on human and
environmental health.

We identified three studies that considered PFAS incineration in full-scale, operating facilities: two
studies in the U.S. (Loganathan et al., 2007; Solo-Gabriele et al., 2020) and a study in China (Wang et al.,
2020). Loganathan et all. (2007) tested dewatered sewage sludge before incineration and the resulting
ash following incineration at a wastewater treatment facility. Of the PFAS measured, PFOA, PFOS, and
PFDA were present at the highest concentrations in sludge (Loganathan et al., 2007). The levels of
detected PFAS in incinerator ash were significantly lower compared to PFAS levels in sludge, in some
cases by over 10-fold. However, measurable PFAS remained in the ash after incineration (Loganathan et
al., 200/). Similarly, a 2020 study reported that the levels of 11 PFAS measured were lower in leachate
from landfills that accept incinerator ash compared to PFAS in leachate from construction and
demolition and municipal solid waste landfills, yet PFAS concentrations did not decrease to non-
detectable levels (Solo-Gabriele et al., 2020). Wang et al. tested for PFAS in air at two municipal solid
waste incinerator facilities, reporting that higher concentrations of PFOA were detected in air at the
incinerator sites compared to an upwind site, while fluorotelomer concentrations were comparable
across all samples (Wang et al., 2020).

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Much more research is needed on the PFAS breakdown species that could form as a result of incomplete
combustion (United States Environ mental Protection Agency, 2020b). A significant barrier to this
research is the limitation of emission sampling and analytical methods for measuring PFAS in air. To
address this question, robust emission sampling and analytical methods for measuring PFAS in air should
be developed. A survey of actual operating conditions at commercially run incinerator facilities, once
conducted and published, would help assess how often operating temperatures around 1000 C,
identified as optimal for PFAS destruction in pilot studies, occur in different types of incinerators
(Baptista and Perovich, 2019; California Department of Toxic Substances Control, 2019; National
Research Council, 2000). The U.S. National Defense Authorization Act for fiscal year 2020 required
incineration for the disposal of PFAS firefighting foam to be conducted in accordance with the Clean Air
Act ("National Defense Authorization Act for Fiscal Year, 2020," 2019). Yet, both practical and policy
questions remain regarding the disposal of old PFAS-based foams. There are also environmental justice
concerns about the impacts of incinerator pollution on nearby communities. In the United States,
incinerators are often located in low-income, socially disadvantaged communities (Baptista and
Perovich, 2019; California Department of Toxic Substances Control, 2019; National Research Council,
2000). Protecting the health of residents in who live near incinerators and other waste disposal sites
must become a policy priority.

6. PFAS disposal and risks to the fence-line communities nearlandfills and incinerators

PFAS waste streams disproportionately affect people and communities located near the waste disposal
sites. Martuzzi et al. reviewed studies from the U.S. and Europe and reported that waste facilities such
as incinerators and landfills are more frequently located in disadvantaged communities, causing
pollution and health inequalities in addition to economic and social injustices (Martuzzi et al., 2010). A
study in North Carolina reported that solid waste facilities were located 2.8 times more often in census
areas where more than 50% of residents were people of color compared to areas with less than 10% of
people of color (Norton et al., 2007).

Mohai and Saha analyzed the data on the locations of hazardous waste treatment, storage, and disposal
facilities in the U.S from 1966 to 1995 and found strong evidence of racial and socioeconomic disparities
(Mohai and Saha, 2015). The study reported evidence that these waste facilities are more often sited in
communities that have more people of color and high poverty rates (Mohai and Saha, 2015). The mean
property values in these areas were not significant factors for the siting of waste facilities. In contrast,
racial composition was found to be a strong and independent predictor of waste facility siting, even after
other socioeconomic characteristics were considered.

Saha and Mohai concluded that racial discrimination and racial inequality are the factors behind this
disparate exposure to pollution from waste facilities (Mohai and Saha, 2007; Saha and Mohai, 2005).

Past racial discrimination in land use and zoning likely contributed to this disparity. Even today, these
communities face the barriers of structural injustice when opposing the placement of a new waste
site. Consequently, communities of color and lowincome communities face greater exposure to PFAS
and other toxic chemicals that are transferred to, stored, incinerated, or landfilled at municipal and
commercial waste disposal facilities. In addressing human health impacts of PFAS disposal, it is
essential to protect the most vulnerable fence-line communities who face a greater and
disproportionate pollution burden relative to the general population.

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7. PFAS not measured: uncertainties around estimates of total
PFAS concentrations

Questions remain concerning the number and mass of PFAS that could not be identified or measured
with methods available at the time of each study. Comprehensive monitoring for total PFAS, mobile
perfluoroalkyl compounds and other degradation byproducts is essential in order to obtain a complete
and reliable estimate of PFAS in a disposal pathway such as landfill leachate (Hamid et a!., 2018).
Analytical capabilities are constantly improving, detecting a larger spectrum of PFAS at ever lower
concentrations. Still, current detection methodologies are far behind the wide range of PFAS
chemistries in commerce. Approaches such as the total oxidizable precursor assay have been
proposed in order to assess the PFAS content in environmental samples that could not be measured
with existing methods for individual PFAS analytes (Wang et a I., 2020; Zhang et a I., 2019).

We present two illustrations that show how methodological limitations may underestimate the total
PFAS passing through a disposal pathway. In one example, we note that there is a wide range of
estimates of the sum of PFAS in landfill leachate (Table 1). A study in China estimated that, across
China, 3110 kg of perfluoroalkyl acid compounds leach into groundwater annually (Yan et a!., 2015). A
2017 study in the U.S. estimated that the total release of PFAS in landfill leachate sent to wastewater
treatment plants in the U.S. is around 600 kg/year (Lang et a!., 2017). A 2010 study in Germany
reported that approximately 90 kg per year for 43 PFAS leach from landfills (Busch et a!., 2010), and a
2017 study in Australia reported a national estimate of 31 kg per year for perfluorohexanoate, the
PFAS that was predominantly detected in landfill leachate in that study (Gallen et a!., 2017). While
these estimates may reflect real differences in PFAS content in landfills in different countries as well as
potential differences in use and disposal of PFAS-containing products in those countries, those distinct
estimates could also be related to the specific subsets of PFAS monitored.

In a second example, laboratory studies of PFAS incineration under controlled conditions have
reported the complete or nearly complete destruction of PFAS e as monitored by the absence of
specific PFAS such as PFOA (Aleksandrov et aL, 2019). On the other hand, two studies of incineration
described in section 5 reported appreciable levels of PFAS (Loganathan et aL, 2007; Solo-Gabriele et
aL, 2020). Loganathan et al. (2007) noted that residual PFAS remained in the ash, and Solo-Gabriele et
al. (2020) reported that PFAS were detectable in leachate from landfills accepting incinerator ash.

While Solo-Gabriele et al. (2020) did not measure PFAS levels in the ash itself, the presence of PFAS in
leachate from these landfills suggests that some PFAS may have remained following incineration.

In the disposal pathways, PFAS are being partitioned between different media as well as transformed
to a variety of degradants, making the total flow of PFAS hard to monitor and quantify. Based on our
review of studies in the peer-reviewed literature, we believe that testing for a limited number of PFAS
compounds likely underestimated the total volume of PFAS and breakdown products that pass
through the disposal pathways and eventually transfer into the environment, food and sources of
drinking water.

8. Conclusions and recommendations

The persistence and mobility of PFAS means that all existing disposal options for PFAS-based materials
have drawbacks. In actual practice in the United States and likely across the world, each disposal

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pathway can pass either PFAS or PFAS breakdown products to other waste streams or to the
environment as air, water or soil pollution, unless special treatment is installed to stop such releases
(Fig. 3). Currently, direct costs and liability considerations drive disposal choices for PFAS-containing
wastes. We hope that, with a better scientific understanding of the fate of PFAS in different disposal
pathways, the full PFAS cycle as well as health and economic costs borne by the fence-line
communities will be considered in order to identify disposal options with the lowest impact on human
health and the environmental.

We posit that the solution to PFAS contamination does not reside in solving the disposal problem
alone. If PFAS continue to be manufactured and used in products, treatment and removal of wastes
will be necessary. In addition to PFAS releases from municipal solid waste disposal processes, there
are ongoing direct PFAS discharges from industrial facilities that manufacture or use PFAS-containing
products, and these releases must be addressed as well. For drinking water, communities will need to
incorporate considerations of PFAS disposal pathways in water treatment planning to minimize and
eliminate the return of PFAS back into the environment. A systemic approach to limiting PFAS
discharges and managing all PFAS as a class (Kwiatkowski et al., 2020) is essential and will be a
necessary part of long-term mitigation of the PFAS pollution globally.

We close this discussion paper with six recommendations for addressing the PFAS waste and disposal
problem:

Limiting industrial discharges. Reducing the total amount of PFAS produced and discharged and limiting
the use of PFAS-based materials to essential applications is the most efficient strategy to deal with PFAS
disposal and contamination issues.

Protecting the health of fence-line communities. Waste disposal sites and toxic chemicals emitted from
these sites disproportionately affect people of color and low-income communities. Strong, pro-active
policies, such as extensive monitoring, data transparency and waste stream elimination, must be
developed to protect the health of residents in areas adjacent to landfills and incinerators from toxic
contaminants.

Capturing and treating landfill leachate directly on site. The practice of transferring landfill leachate to
wastewater treatment facilities cycles PFAS from one location to another and does not solve the
contamination problem. Capturing, treating, and retaining PFAS at the landfill site stops the problem
from moving further afield. The same approach should be used for all other liquid sources of PFAS
pollution.

Monitoring of PFAS in all media at and near disposal sites. Monitoring should include both precursor
compounds and various degradation byproducts and address air and water emissions as well as PFAS in
soil. Monitoring should also address the fate and transport of PFAS in contexts where PFAS has not yet
been studied, such as deep well injection, and for in situ stabilization approaches that are currently
under investigation.

-------
Research on PFAS incineration. The fate of PFAS under the current operating conditions of commercial
incinerators is largely unknown. This data gap must be addressed, and studies should be done on
combustion of PFAS in various types of incinerator facilities, from municipal solid waste to biosolid
incineration and hazardous waste incineration. Research is essential on the optimal temperatures and
incinerator residence times for complete PFAS destruction in commercially run incinerators.

Research on advanced remediation technologies. PFAS in various hard-to-treat media such as
groundwater, contaminated soils, and sewage sludge pose challenges that are not effectively addressed
with current disposal options. It is our hope that future research will bring new solutions for cleaning up
these reservoirs of PFAS contamination.

Credit author statement

Tasha Stoiber: Conceptualization, Formal analysis, Resources, Writing - original draft, writing -review and
editing, Olga V. Naidenko: Conceptualization, Formal analysis, Resources, Writing original draft, writing -
review and editing, supervision, Sydney Evans: Conceptualization, Formal analysis, Resources, Writing
original draft, writing -review and editing, Visualization

Declaration of competing interest

The authors declare that they have no known competing financial interests or personal relationships
that could have appeared to influence the work reported in this paper. Acknowledgements

This research did not receive project-specific funding.

Fig. 3. PFAS emissions into air, water, and soil from different disposal pathways.

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The authors thank their colleagues David Q. Andrews and Alexis M. Temkin for valuable discussions and
comments on the manuscript. The authors also thank two anonymous reviewers who provided
informative and helpful feedback during the peer review process.

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Comments submitted to the National Environmental Justice Advisory Council
(NEJAC)

Sent via email to Nejac@epa.gov on August 27,2020

These written comments are submitted on behalf of the Environmental Working Group (EWG), a
nonprofit research and advocacy organization based in Washington, D.C. These comments are provided
in response to a request made by NEJAC following the discussion of EWG public comments presented
during the August 19, 2020, NEJAC public meeting.

EWG applauds the NEJAC leadership for advocating for environmental justice for communities, and for
your 2019 recommendations to the EPA to strengthen the Agency's PFAS Action Plan.2 The extent of
American communities' confirmed contamination with the highly toxic fluorinated compounds known as
PFAS continues to grow at an alarming rate. EWG's analysis documented that as of July 2020, 2,230
locations in 49 states are known to have PFAS contamination.2 As alarming as this information is, the full
extent of PFAS contamination has yet to be revealed, and tests continue to identify new locations where
PFAS pollution affects water, soil, air - and the people who live in those locations.

With this letter, we would like to bring to NEJAC's attention a recent peer-reviewed article on the
"Scientific Basis for Managing PFAS as a Chemical Class," published in the journal Environmental Science
& Technology Letters.3 In this study, a group of U.S.

and international scientists emphasized that the current approach to regulating and managing PFAS has
failed to protect public health. The study recommended a new approach that classifies all PFAS as
concerning and provided a scientific rationale for businesses and governments to eliminate non-
essential uses of PFAS-based materials and develop new products that avoid PFAS altogether.

PFAS chemicals affect human health at all stages of life but pose unique risks to infants and children. A
peer-reviewed study co-authored by scientists at EWG and Indiana University found that 26 different
PFAS compounds for which toxicological data could be identified in peer-reviewed scientific literature all
displayed at least one characteristic

of known human carcinogens.4 The study concluded there is strong evidence that multiple PFAS induce
oxidative stress, suppress the immune system, and modulate receptor-mediated effects, as well as

2 NEJAC Letter Regarding the PFAS Action Plan. August 14, 2019.
https://www.epa.gov/environmentaljustice/nejac-letter-regarding-pfas-action-plan 2
Environmental Working Group. PFAS Contamination in the U.S. (July 20, 2020).

https://www.ewg.org/interactive-maps/pfas_contamination/map/

3 Kwiatkowski C.F., Andrews D.Q., Birnbaum L.S., Bruton T.A., DeWittJ.C., Knappe D.R. U., Maffini M.V., Miller
M.F., Pelch K.E., ReadeA., SoehlA., Trier X., VenierM., Wagner C.C., Wang Z., Blum A.

Environmental Science & Technology Letters 2020 7 (8), 532-543.
httvs://doi. ore/10.1021/acs.estlett. 0c00255

4 Temkin A.M., Hocevar B.A., Andrews D.Q., Naidenko O.V., Kamendulis L.M. Application of the Key
Characteristics of Carcinogens to Per and Polyfluoroalkyl Substances. Int J Environ Res Public Health.
2020; 17(5): 1668. https://doi.ors/10.3390/iierphl7051668

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suggestive evidence indicating that some PFAS can induce epigenetic alterations and influence cell
proliferation. Jointly, these chemical and toxicological features of the PFAS family of chemicals make
them very harmful to human health.

With the phaseout of the 8-carbon fluorinated compounds PFOA and PFOS from use in the U.S.,
manufacturers are switching to shorter-chain PFAS alternatives, and these compounds are increasingly
found in the environment - and in drinking water.5 The toxicity risks of short-chain PFAS remain a
concern. Further, short-chain PFAS have higher aqueous solubility and mobility and are harder to
remove from water, compared with longer-chain PFAS.6

PFAS contamination in the U.S. has become a public health and environmental justice crisis that must be
urgently addressed. In EWG's assessment, in order to address the PFAS contamination crisis, the EPA
should shut off ongoing sources of PFAS contamination, fully investigate the scope of existing PFAS
contamination, promptly notify communities harmed by PFAS contamination, and dramatically
accelerate cleanup efforts.

EWG requests NEJAC to provide the following recommendations to the EPA:

• Designate PFOA and PFOS as hazardous substances under CERCLA, and consider this designation
for additional PFAS substances, as proposed by H.R. 535

• Regulate PFOA and PFOS as hazardous air pollutants under the Clean Air Act, and consider
regulating additional PFAS substances, as proposed by H.R. 535

• Create water quality criteria, effluent limitation guidelines, and pretreatment standards for PFAS
chemicals, as proposed by H.R. 535

• Revise and strengthen EPA's interim guidance on groundwater cleanup of PFOA and PFOS

• Finalize guidance for disposal of PFAS waste that ensures the protection of vulnerable
communities from additional contamination

• Create regulations implementing section 330 of the FY 2020 National Defense Authorization Act,
which required that military PFAS waste be properly stored and that incineration of military
PFAS waste complies with all Clean Air Act requirements, completely breaks down the PFAS, and
takes place at facilities permitted under subtitle C of RCRA, as proposed by the House-passed
version of the FY 2021 NDAA

• Create drinking water standards for PFOA and PFOS, and consider regulating additional PFAS
under the Safe Drinking Water Act, as proposed by H.R. 535

• Update the sludge rule under the Clean Water Act to require mandatory tests for PFAS
chemicals in wastewater treatment sludge

3 Stoiber, T., Evans, S., Temkin, A.M., Andrews, D.Q., Naidenko, O.V., 2020. PFAS in Drinking Water: an Emergent
Water Quality Threat. Water Solutions 1:40.

6 Li F, Duan J, Tian S, Ji H, Zhu Y, Wei Z, Zhao D. (2019). Short-chain Per- and Polyfluoroalkyl
Substances in Aquatic Systems: Occurrence, Impacts and Treatment. Chemical Engineering Journal. 380.

122506. httvs://doi. ore/10.1016/i. cei. 2019.122506

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• EPA should use its data collection authorities under sections 4 and 8 of the Toxic Substances
Control Act to generate more data on PFAS chemicals. In particular,

EPA should quickly finalize the section 8 data call-in required by the FY 2020
NDAA

• Issue a moratorium on new PFAS chemicals under TSCA, as proposed by H.R. 535

• EPA should review its existing 5(e) orders for PFAS chemicals under TSCA to ensure they comply
with the new TSCA requirements and protect vulnerable populations

• EPA should ensure that PFAS chemicals are exempt from de minimis reporting exemptions under
the Toxics Release Inventory, as proposed by the House-passed FY 2021 NDAA. EPA should also
add additional PFAS to the Toxics Release Inventory.

• Develop new analytical test methods for PFAS to expand the number that can be tested for in
drinking water, as well as methods that can measure total PFAS or total organic fluorine. EPA
should also develop methods to measure PFAS in other environmental media, like air and soil.

• EPA should establish final benchmark values for GenX and PFBS, and quickly produce draft
toxicity values for the five PFAS currently undergoing risk assessment: PFDA, PFNA, PFHxA,
PFHxS, and PFBA.

Thank you for this opportunity to provide written comments,

With best regards

Olga Naidenko,

V.P. of Science Investigations, Environmental Working Group

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IE?! Tulane
w University

Tulane Law School

Tulane Environmental Law Clinic

June 17, 2020

By e-mail to: DEQ.PUBLICNOTICES@LA.GOV
Louisiana Department of Environmental Quality
Public Participation Group
P.O. Box 4313, Baton Rouge, LA 70821

EPA Region 6 Main Office
1201 Elm Street, Suite 500
Dallas, Texas 75270

Re: Comments on 2020 Louisiana Annual Monitoring Network Plan

Dear LDEQ Public Participation Group,

On behalf of Patricia Charles, Raphael Sias, Ronald Carrier, Larry Allison, Karl Prater,
McKeever Edwards, Carolyn Peters, Stafford Frank, and Peggy Anthony ("Mossville
community members"), we respectfully submit these comments concerning Louisiana's
proposed 2020 Annual Air Monitor Network Plan ("Plan"). These comments raise major
concerns about air pollution and the lack of air monitoring in Mossville, Louisiana, as well as
concerns over the Louisiana Department of Environmental Quality's ("LDEQ's")
longstanding failure to address these issues. As detailed below, multiple data sources indicate
that Mossville and neighboring communities are burdened with hotspots of air pollution that
are among the most severe in Louisiana. Yet LDEQ has sought to systematically eliminate
air monitors in this area, while concurrently permitting massive increases in industrial
emissions. These actions have resulted in disproportionate harm to Mossville - a culturally
rich, rural community, with deep roots in African American history (Fig. I)7. The 2020 Plan
provides an opportunity to begin to address the disproportionate risk that the remaining

7 Moss\'ilie History Project. h tips://www. lib. Isu. edu/oralhistorv/collections/mossville Tulane

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Mossville residents experience from air pollution, and LDEQ should revise this plan
accordingly.

Mossville community members are black Americans who have been severely
overburdened with industrial air pollution. Residents of Mossville fear for their health,
wellbeing, loss of community, and property devaluation given the exceptionally high levels
of harmful air pollutants emitted from the 14 surrounding industrial facilities. Mossville
represents the most heavily industrialized area of Calcasieu Parish, which has higher
emissions of nearly

every criteria pollutant than any other parish in Louisiana (with the exception of PMio
and lead) 2 This disproportionate impact of industrial permitting is reflected in the fact that
Mossville is a hotspot of extreme air toxicity, representing the top 1% most toxic air in
Louisiana, according to Environmental Protection Agency (EPA) data (Fig. 2).3 Mossville
community members are alarmed by the recent and ongoing industrial buildouts like those at
Sasol's Lake Charles Chemical Complex, which was recently ranked as the #2 "super
polluter" in the nation.4 These members are also concerned by the track record of serious
permit violations at the industrial facilities near this historic black community. According to
EPA data, two facilities located adjacent to Mossville (i.e. Phillips 66 and Georgia Gulf)
have had "high priority violations" of their air permits within the last 3 years, resulting in
multiple enforcement actions at each facility.5

On behalf of the Mossville community members, we respectfully request that the
LDEQ amend the air quality monitoring plan to include reliable air monitors for PM2.5, NOx,
VOCs, and ozone in Mossville, Louisiana. This information is essential to the health,
wellbeing, and economic viability of the Mossville community.

Figure 1. Satellite imagery from Google
Earth Pro, illustrating the industrialization
and destruction of Mossville from 2013 to
2018. Yellow lines indicate the approximate
boundaries of historic Mossville.

5/2013

12/2018

2 Based on LDEQ 2018 reported emissions, accessed via ERIC Emissions by Parish
Report. https://business.deq.louisiana.gov/Eric/EricReports/ParishReportSelector?.

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Calcasieu Parish 2018 emissions include: PM2.5 (2,769 tons), NOx (17,173 tons), total
VOCs (6,224 tons), CO (9,980 tons), and SO2 (29,649 tons). Calcasieu Parish's 2018 PM10
emissions are the second highest in the state. Id.

3 2018 EPA RSEI microdata. https://www.epa.gov/rsei/rsei-geographic-microdata-rsei-gm

4 Apr. 8, 2020, "Breath to the People, Sacred Air and Toxic Pollution," Environmental
Integrity Project for the United Church of Christ, p. 7, available at:

https://d3n8a8pro7vhmx.cloudfront.net/unitedchurchofchist/pages/24840/attachments/origin
al/1

5 82721312/F IN AL_BreathToThePeople_2.26.2020.pdf? 15 82721312
5 Data accessed from EPA's ECHO database on June 16, 2020. See
https://echo.epa.gov/detailedfacilitv-report?fid=l 10002054482. See also
https://echo.epa.gov/detailed-facilitvreport?fid=110000539757#pane3110000539757.

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Comments regarding the 2020 Louisiana Annual Monitoring Network Plan June

17,2020

Page 150 of 25

u«.eCharte
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Figure 2. Areas of the most (top 1%) extreme air toxicity in Louisiana (red
shading), based on toxicity-weighted concentration values from the EPA RSEI
2018 Micro Dataset. Main map depicts historic Mossville (yellow boundary;
approximate) engulfed by a toxic air hotspot. Inset illustrates the relative
location of this hotspot in southwest Louisiana. Black lines delineate 2019
Metropolitan Statistical Area boundaries. Data available from
https://www.epa.gov/rsei/rsei-geographic-microdata-rsei-gm

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Tulane Environmental Law Clinic

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504.862.8721 https://law.tulane.edu/clinics/environmental

BACKGROUND

Mossville, an unincorporated town in Calcasieu Parish, Louisiana, was founded by
formerly enslaved African people in the 1790s.6 The town is wedged between Westlake and
Sulphur, about 6 miles northwest of Lake Charles. Despite its small size, Mossville has a rich
cultural heritage and deep genealogical roots that represent an important contribution to black
American history. Many members of the community are descendants of the emancipated settlers

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Comments regarding the 2020 Louisiana Annual Monitoring Network Plan June
17, 2020
Page 151 of 25

of Mossville.7 Over the course of the past 60 years, residents of Mossville have struggled, to the
point of oppression, with air pollution, groundwater contamination, and the corresponding health
impacts.8 Community members watched their ancestral home be dismantled piece-by-piece, as
petrochemical companies continued to build and expand along their fencelines (Fig. I).9

The EPA defines environmental justice as "the fair treatment and meaningful
involvement of all people regardless of race, color, national origin, or income, with respect to the
development, implementation, and enforcement of environmental laws, regulation, and
policies."10 According to the EPA, fair treatment means that "no group of people should bear a
disproportionate burden of environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and commercial operations or
programs and policies."11 Based on EPA and satellite data, it is clear that Mossville
disproportionately suffers the negative consequences of decades of permits granted to nearby
petrochemical facilities by LDEQ (Figs. 1&2). Much of this historic community has been
demolished, literally, to advance the economic interests of petrochemical companies, particularly
Sasol (a foreign company). Yet poverty rates for Calcasieu Parish have not improved over the
last two decades, while median household income in the parish has fallen relative to U.S. median
household income (Fig. 3).8

6 https://www.nola.com/news/business/article f478381c-ff36-57b3-adc2-2116c35982d9.html.

7 https://www.lib.lsu.edu/oralhistory/collections/mossville

8 https://www.cnn.com/2010/HEALTH/02/26/toxic.town.mossville.epa/index.html

9 https://www.nola.com/news/business/article f478381c-ff36-57b3-adc2-2116c35982d9.html

10 https://www.epa.gov/environmentaljustice

11 EPA, Plan EJ 2014 at 3, available at https://nepis.epa.gov/Exe/ZyPDF.cgi/P100DFCQ.PDF?
Dockey=P 100DFCQ.PDF; see also Basis for Decision for FG LA Complex, EDMS Doc. No.

11998452 (AI No. 198351), Part IX: Environmental Justice/Civil Rights Title VI Issues, at pdf
P-

35 (in which LDEQ endorses this definition).

census.gov/data-tools/demo/saipe/#/?map_geoSelector=aa_c&s_state=22&s_county=22019 Tulane

Environmental Law Clinic
6329 Freret St., Ste. 130, New Orleans, LA 70118-6248 tel 504.865.5789 fax 504.862.8721
https://law.tulane.edu/clinics/environmental
Tulane Environmental Law Clinic
6329 Freret St., Ste. 130, New Orleans, LA 70118-6248 tel 504.865.5789 fax 504.862.8721
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Comments regarding the 2020 Louisiana Annual Monitoring Network Plan June

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Page 152 of 25

to 30

United States — Louisiana Calcasieu Parish (LA)

Calcasieu Pamli 0 Ai 905t CI

Figure 3. Economic indicators for Calcasieu Parish (green line, shading indicates 90% confidence
interval), relative to Louisiana (black line), and the U.S. overall (blue line). Note that poverty rates (top
panel) in Calcasieu Parish have not significantly improved overall during the last 5, 10, or 20 years.
Median household income (bottom panel) has increased over the last 20 years, but has fallen relative to
the U.S. overall. Data from:

census.gov/datatools/demo/saipe/#/?map_geoSelector=aa_c&s_state=22&s_county=22019.

Ozone (Os)

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Comments regarding the 2020 Louisiana Annual Monitoring Network Plan June
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Page 153 of 25

Calcasieu Parish has the highest emissions of ozone precursors13 of any parish in
Louisiana, with over 17,000 tons of nitrogen oxides (NOx), more than 6,000 tons of volatile
organic compounds (VOCs), and nearly 10,000 tons of carbon monoxide (CO) emitted in 2018,
according to LDEQ data.14 This environmental impact is clearly disproportionate; Calcasieu
Parish represents only 2% of the land area of Louisiana,9 yet it is overburdened with 10% or
more of statewide emissions for each of these three pollutants.10

While Mossville has been overburdened by industrial pollution for decades, this disparity
was recently exacerbated by a major expansion of Sasol's Lake Charles Chemical Complex. In
May 2014, LDEQ issued air permits that allowed Sasol to massively increase emissions at this
complex for its Cracker Project.11 This included drastic increases in ozone precursors: 2,673 tpy
of CO, 2,623 tpy of total VOCs, and 923 tpy of NOx.12 In addition to their direct health effects,
these pollutants cause respiratory disease and other health problems by contributing to the
formation of ground-level ozone.13 Air modeling conducted by Sasol indicated that the Cracker
Project would increase ambient ozone concentrations across a vast area, with impacts extending
to Houston, TX.20 Ozone concentrations at the Westlake monitor were expected to increase by
0.2 ppb (0.002 ppm) as a result of Sasol's Cracker Project, while ozone concentrations in nearby

13 https://www.eea.europa.eu/themes/air/air-qualitv/resources/glossary/ozone-precursor 14
NOx emissions (2018): Calcasieu Parish, 17,173 tons; Louisiana, 138,433 tons. Total VOC
emissions (2018): Calcasieu Parish, 6,224 tons; Louisiana, 57,287 tons. CO emissions
(2018): Calcasieu Parish, 9,980 tons; Louisiana, 97,553 tons. Data from LDEQ ERIC
database. 2018 Emissions by Parish Report. Statewide totals calculated as the sum of all
parishes. https://business.deq.louisiana.gov/Eric/EricReports/ParishReportSelector?

9 Land area: Calcasieu Parish, 1,064 mi2; Louisiana, 43,204 mi2. Data from the U.S. Census Bureau Quick Facts,
accessed June 13, 2020.

https://www.census.sov/auickfacts/fact/table/calcasieuparishlouisiana.LA/PST045219

10 Data from LDEQ ERIC database. 2018 Emissions by Parish Report. See footnote 12.

11 LDEQ. Basis for Decision. Lake Charles Cracker Project. Part 70 Operating Permits. Pase 26. EDMS # 9317311.
May 23. 2014.

12 Id. at page 3.

13 See https://www.epa.goV/no2-pollution/basic-information-about-no2#Effects: see also https://www.epa.sov/sround-
level-ozone-pollution/sround-level-ozone-basics# formation and https.V/toxtown. nlm.nih. sov/chemicals-and-
contaminants/volatile-orsanic-compounds-vocs and https://earthobservatorv.nasa.sov/imases/7033/carbon-monoxide-
fires-and-air-pollution and https://www. eea. europa. eu/themes/air/air-aualitv/resources/slossarv/ozone-precursor 20
LDEQ. Statement of Basis. Lake Charles Cracker Project, Proposed Part 70 Operating Permits. Page 26. EDMS #
9317309. May 23, 2014.

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Comments regarding the 2020 Louisiana Annual Monitoring Network Plan June
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Page 154 of 25

(unspecified) areas would increase by 0.5 ppb (0.005 ppm).14 Neither LDEQ nor Sasol has
informed the Mossville community about the level of expected ozone increase in their town,
despite extensive company outreach related to the Cracker Project and the company's expressed
commitment to "be a good corporate citizen and communicate forthrightly with our
neighbors."15

Before it was deactivated, the Westlake monitor measured ozone levels extremely close
to the current NAAQS threshold (implemented in 2015) of 0.07 ppm16; the value for 2010-2012
at the Westlake monitor was 0.069 ppm. Thus, the projected 0.002 ppm ozone increase from
Sasol's Cracker Plant warrants continued monitoring at this currently-inactive site. The potential
for an ozone NAAQS violation is further evidenced by LDEQ reported "actual emissions" data,
which indicates a 20-fold increase in VOC emissions (34.1 tons versus 713.7 tons) and a
llOfold increase in NOx emissions (4.1 tons versus 454.3 tons) within 1 km of the Westlake
monitoring site (30.262347, -93.284906) from 2015 to 2019.17

Despite the clear potential for an ozone NAAQS violation at the Westlake monitor,
LDEQ received EPA approval to discontinue this monitor in October 2014.18 The LDEQ
justified the removal of the Westlake ozone monitor by claiming that its readings were
"consistently lower" than the Vinton and Carlyss monitors.19 However, the monitoring data do
not support this conclusion (Fig. 4). In fact, the highest ozone levels recorded by the Westlake
monitor in 2013 and 2014 were above the highest values recorded by the Vinton monitor (Fig.
5).20

14 Id.

15 Sasol Property Purchase Program Handbook. Jul 18, 2013. (Exhibit A)

16 The .07 ppm limit is calculated as the annual fourth-highest daily maximum 8-hour concentration, averaged over 3
years.

17 Data accessed May 2020 from httvs://business, dea. louisiana. eov/Eric/EricRevorts using a 1,000 m radius and
coordinates: 30.262347, -93.284906.

18 2014 Louisiana Annual Network Assessment, LDEQ, 4, available at

https://dea.louisiana.sov/assets/docs/Air/Ambient Air Data/2014/FINAL 2014 LANA with EPA response letter.vdf.

19 Id. at 4 of 20.

20 See LDEQ Ambient Air Monitoring Data.

https://www.dea. louisiana.sov/index.cfm?md=pasebuilder&tmp=home&pid=ambient-airmonitorins-data-reports
Accessed April 2020.

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Comments regarding the 2020 Louisiana Annual Monitoring Network Plan June

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Page 155 of 25

Figure 4. Difference in ambient ozone concentrations between the Westlake and Vinton monitor
locations. Positive values indicate higher Tulane Environmental Law Clinic

o
o

CO
p

Jan Mar May Jul

Sep Nov Jan

Date

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Comments regarding the 2020 Louisiana Annual Monitoring Network Plan June

17,2020

Page 156 of 25

1.3 6329 Freret St., Ste. 130, New Orleans, LA 70118-6248 tel 504.865.5789 fax 504.862.8721

https://law.tulane.edu/clinics/environmental

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CO

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2011

2012 2013

Year

2014

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Figure 5. Ozone concentrations (8-hour averages) from LDEQ air monitors in the Lake
Charles Metropolitan Statistical Area from 2010 through 2014.

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Fine Particulate Matter (PM2.5)

Calcasieu Parish has the highest PM2.5 emissions in Louisiana by a wide margin, with
53% higher emissions than the next highest parish (East Baton Rouge Parish).28 Calcasieu Parish

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Comments regarding the 2020 Louisiana Annual Monitoring Network Plan June
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Page 157 of 25

is clearly overburdened with PM2.5, representing 2% of the land area in Louisiana, but 15% of
the state's PM2.5 emissions.29 Exposure to PM2.5 is a well-established cause of respiratory
disease, cardiovascular disease, and increased susceptibility to respiratory viruses.21 Yet, LDEQ
has systemically sought to eliminate most of the PM2.5 monitoring in the Lake Charles
Metropolitan Statistical Area (MSA), while concurrently permitting drastic increases in PM2.5
emissions.

In 2014, LDEQ deactivated the FRM PM2.5 monitor at McNeese State University,22 a
public institution that predominantly serves Louisiana residents.23 This university is substantially
closer to major sources of industrial PM2.5 emissions compared to the Vinton monitoring site,
which represents the only other FRM PM2.5 monitor in the Parish. Yet, paradoxically, in its
approval to deactivate the McNeese monitor, the EPA concluded that it "supports the continued
operation of the PM2.5 FRM at the Vinton site due to the proximity of industrial sources in the
area." The LDEQ reaffirmed this purpose in its 2016 Monitoring Plan, stating that the agency
would continue operating the Vinton PM2.5 monitor "due to the proximity of industry in the area
to provide oversight of ambient air conditions in this industrial area."24 However, these
statements ignore the fact that the Vinton PM2.5 monitor is located nowhere near the area's major
industrial sources of PM2.5 emissions (i.e. about 15 km away; Fig. 6). In fact, the monitor is

28 2018 PM2.5 emissions: Calcasieu Parish, 2,769 tons; East Baton Rouge Parish, 1,814 tons;
Louisiana, 18,442 tons. Data from LDEQ ERIC database. 2018 Emissions by Parish Report.
https://business.deq.louisiana.gov/Eric/EricReports/ParishReportSelector?

29 Id. Land area: Calcasieu Parish, 1,064 mi2; Louisiana, 43,204 mi2. Data from the U.S.
Census Bureau Quick Facts, accessed June 13, 2020.

21 See Ciencewicki, Jonathan, and Ilona Jaspers. "Air Pollution and Respiratory Viral Infection. "

Inhalation Toxicology 19, no. 14 (November 2007): 1135-46; and references therein. See also Wu, X, R. C. Nethery,
B.M. Sabath, D. Braun, and F. Dominici. "Exposure to Air Pollution and COVID-19 Mortality in the United States.
MedRxiv 2020.04.05.20054502; Doi: Https://Doi.Org/10.1101/2020.04.05.20054502. "Harvard University, April 24,
2020; and references therein.

22 2014 Louisiana Annual Network Assessment, LDEQ, 4, available at

https://dea.louisiana.sov/assets/docs/Air/Ambient Air Data/2014/FINAL 2014 LANA with E
PA response letter, vdf

23 https://www. collesefactual.com/colleses/mcneese-state-universitv/student-life/diversitv/

24 2016 Louisiana Annual Network Assessment, LDEQ, 6 of 19, available at

https://www.epa.sov/sites/production/files/2017-09/documents/laplan2016.pdfTulane Environmental
Law Clinic

6329 Freret St., Ste. 130, New Orleans, LA 70118-6248 tel 504.865.5789 fax 504.862.8721
https://law.tulane.edu/clinics/environmental
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Comments regarding the 2020 Louisiana Annual Monitoring Network Plan June
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https://www.census.gov/quickfacts/fact/table/calcasieuparishlouisianaXA/PST045219
located so far west that it provides more relevant information for Forest Hills, TX than for
Mossville or Lake Charles, LA.34 Thus, it is not surprising that ambient PM2.5 concentrations at
the Vinton site are among the lowest in the Lake Charles MSA, based on modeled satellite data
(Fig. 7).35 In contrast to Vinton, the McNeese site was relatively close to major industrial sources
of PM2.5 (i.e., ~5 km; Fig. 6) and was located at the edge of a PM2.5 hotspot (Fig. 7). Further, in
the three years prior to its deactivation, annual mean PM2.5 concentrations from the McNeese
monitor were consistently higher than those from the Vinton monitor (Table l).36 Not only did
the McNeese site provide a better opportunity for industry oversight, it was relevant to a far
larger population; based on 2010 Census data, the population density around the McNeese site
was nearly 20-fold higher than that around the Vinton site.25

In July 2014, less than two months after permitting a 606 tons per year (tpy) increase in
PM2.5 emissions for Sasol's Lake Charles Chemical Complex,26 LDEQ requested EPA approval
to discontinue the Westlake PM2.5 monitor, located at the complex's fenceline.27 The LDEQ
claimed that the sole remaining PM2.5 monitor in the Lake Charles MSA, located -15 km west
(far closer to Texas than to Sasol), would provide "sufficient PM2.5 monitoring coverage in the
region."28 The data from the Westlake monitor itself refute this claim; the following year (2015),
annual mean PM2.5 increased 19% at the Westlake monitor (compared to 2014), but only 6% at

34 In other words, the Vinton monitoring site is located only 16 km from Forest Hills, TX, but 27
km from Mossville and 35 km from Lake Charles, LA.

35 Modeled satellite data from Van Donkelaar et al., North American Regional Estimates.
Available at http://fizz.phvs.dal.ca/~atmos/martin/7page id=140.

25 Based on 2010 Census Data for the 3-mile buffer around each point location, accessed via EJScreen. McNeese
(30.176386, -93.214058): 2,110people per mi2. Vinton (30.227567, 93.579778): 109 people per mi2.

26 The 606 tpy increase includes 364 tpy for the Cracker Project and 242 tpy for the failed Gasto-Liquids Project. See:
LDEQ. Statement of Basis. Lake Charles Cracker Project. Page 25. EDMS # 9317309. May 23, 2014. See also: LDEQ.
Statement of Basis. Gas to Liquids Project. 2 of 32. EDMS 9317335. May 23, 2014.

27 2014 Louisiana Annual Network Assessment, LDEQ, 4 of 20, available at
https://dea.louisiana.sov/assets/docs/Air/Ambient Air Data/2014/FLNAL 2014 LANA with E
PA response letter, vdf

28 2014 Louisiana Annual Network Assessment, LDEQ, 4 of 20, available at

https://dea.louisiana.sov/assets/docs/Air/Ambient Air Data/2014/FLNAL 2014 LANA with EPA response letter.vdf

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Comments regarding the 2020 Louisiana Annual Monitoring Network Plan June
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Page 159 of 25

36 McNeese and Vinton PM2.5 data from LDEQ Ambient Air Monitoring Data, available at
https://deq.louisiana.gov/page/ambient-air-monitoring-data-reports. Westlake PM2.5 data
obtained from LDEQ by Public Records Request in April 2020 (Exhibit B).
the Vinton monitor (Table l).29 In fact, annual mean PM2.5 concentrations have increased every
year at the Westlake site since LDEQ requested its deactivation in 2014 and have been
consistently higher than those values for Vinton (Table l).30 Mossville community members
sincerely commend EPA for recognizing the critical need for PM2.5 data from the Westlake site
and denying LDEQ's ill-conceived request to decommission this monitor.31

One of the more alarming aspects of the 2020 Plan is that, in it, LDEQ claims that the
Westlake PM2.5 monitor data are not comparable to NAAQS, based on a 2013 letter from EPA.32
However, the cited letter does not appear to support this statement and does not appear to reflect
EPA approval of exclusion of the Westlake PM2.5 monitor data.33 And we are unaware of any
legitimate justification for excluding the Westlake PM2.5 data from NAAQS comparison. In fact,
the LDEQ relied heavily on the Westlake PM2.5 monitoring data to determine NAAQS
compliance in permitting Sasol's 606 tpy PM2.5 increase described above, claiming that "due to
the proximity of LDEQ's Westlake monitor to Sasol, LDEQ determined that nearby industrial
emissions of PM2.5, SO2, and NOx have been accounted for in the observed background
concentrations, thus precluding the need to model an offsite inventory to characterize such
impacts."34 This claim is physically impossible; information obtained from a single point
location (i.e. the Westlake monitor) cannot account for the combined effects of more than a
dozen major industrial facilities on multiple communities spread across a relatively broad
geographic area (and located in opposite directions from the monitor). It is critical that the
question of NAAQS comparability be resolved, because the Westlake monitoring data indicate
that ambient PM2.5 concentrations have consistently increased since 2014 (Table 1), concurrent
with the massive, ongoing expansion of industrial activity near the monitoring site.

29 Vinton: 6.9 jug/m3 in 2014 and 7.3 jug/m3 in 2015. Westlake: 8.9 jug/m3 in 2014 and 10.6 jug/m3 in 2015. Vinton and
McNeese data are available at

https://dea.louisiana.sov/pase/ambient-air-monitorins-data-reports. See Exhibit B for Westlake PM2.5 data.

30 Id.

31 2014 Louisiana Annual Network Assessment, LDEQ, 4 of 20, available at
https://dea.louisiana.sov/assets/docs/Air/Ambient Air Data/2014/FINAL 2014 LANA with E
PA response letter.pdf

32 2020 Louisiana Annual Network Assessment, LDEQ, 16 of 17. EDMS #12170694.

33 See Exhibit C, in globo.

34 LDEQ. Statement of Basis. Lake Charles Cracker Project. Activity No. PER20130017 through PER20130025. Page
25. EDMS# 9317309. May 23, 2014.

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Comments regarding the 2020 Louisiana Annual Monitoring Network Plan June
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Table 1. Annual Mean PM2.5 Concentrations at LDEQ Monitoring Sites in the Lake
Charles MSA

Year

Vinton

McNeese

Westlake

2012

8.0

8.3

9.2

2013

7.4

8.0

9.9

2014

6.9

7.4

8.9

2015

7.3

10.6

2016

7.6

10.9

2017

7.7

11.1

2018 8.7 NA 11.3

Carbon Monoxide (CO)

In contrast to other NAAQS criteria pollutants, there is no monitoring for carbon
monoxide (CO) anywhere in or near the Lake Charles MSA. In fact, the only CO monitors in the
state are located over 100 miles away, in Baton Rouge and New Orleans.35 This lack of CO

35 Louisiana Ambient Air Monitoring Sites. Updated May 2017. Accessed June 13, 2020.

https://www.dea.louisiana.sov/assets/docs/Air/LouisianaAmbientAirMonitorinsSites.pdf48 CO emissions (2018):
Calcasieu Parish, 9,980 tons; Louisiana, 97,553 tons. Data from LDEQ ERLC database. 2018 Emissions by Parish
Report.

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Comments regarding the 2020 Louisiana Annual Monitoring Network Plan June
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itoring in the Lake Charles MSA is concerning, given that Calcasieu Parish has the most
industrial CO emissions of any parish in Louisiana.48

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Page 162 of 25

icNeese State University

Permitted PM2.5 Emissions (tpy) by
100 • 500

500 • 1.000
1,000 1,500

1,500 2,000

2,000 2,100

=§= PM2.5 Monitor (NAAQS-comp;
Historic Mossville

Figure 6. Graduated symbol map o
emission sources relative to Mossv
FRM PMjs monitor in the Lake CI
represent permitted emissions, sum
LDEQ Agency Interest number). F
thanlOOtpy PM2.5 emissions are ex>
LDEQ's ERIC database; accessed ,

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Page 163 of 25

Vinton PM j . nonitor

• Wesilakt? PMjs manilur

Mossville ,

lake Charter.

Carlyss McNeese State University

2014-2018 Mean PM2.5 concentration Imean)

10 ITli 6.i 7.3 8.2 8.2 9.2 10.2

Figure 7. Map of it
(mean of 2014-201
illustrating Mossvi
Pollution Hotspot,
LDEQ's active (Vi
(McNeese), and co
PM15 monitors in t
Metropolitan Statis
According to LDE<
Network Plan (Pag
NAAQS-comparab
operating in the La
illustrates location
state. Modeled sate
vanDonkelaar, Aar
Chi Li, and Richarc
Estimates of Chem
Particulate Matter 1
Geoscience-Statisti
Information from S
Monitors." Envirot
Technology 53, no.
2595-2611.
https://doi.Org/10.l
These satellite data
http://fizz.phvs.dal
id= 140.

Tulane Environmental Law Clinic 6329 Freret St., Ste. 130, New Orleans, LA 70118-6248 tel 504.865.5789 fax
504.862.8721 https://law.tulane.edu/clinics/environrrierital LDEQ Failure to Consider Planned Emissions
Increases The LDEQ's July 2013 request to exclude Westlake PM2.5 data and its July 2014 request
to discontinue the Westlake ozone monitor both failed to acknowledge the massive emissions
increases planned by Sasol and reflected in April 2013 permit applications for its Cracker
Project.49 While reviewing and approving these drastic emissions increases for PM2.5 (364 tpy) and
ozone precursors (i.e., NQX [923 tpy], VOCs [2,623 tpy], and CO [2,673 tpy]), LDEQ concurrently
worked to eliminate monitoring PM2.5 and ozone at the monitoring site closest to the project area
(i.e. Westlake).50 LDEQ missed a long overdue opportunity to rectify the above errors in its 2020
Annual Network Assessment. The agency should amend its monitoring plan to generate
NAAQScomparable data for PM2.5, ozone, and carbon monoxide monitors in the Westlake area,
ideally in the town of Mossville, and maintain its ambient air monitoring network in accordance
with 40 CFR Part 58.

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Comments regarding the 2020 Louisiana Annual Monitoring Network Plan June
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Page 164 of 25

Sasol Initial Part 70 and PSD Permit Application, Lake Charles Cracker Project. AI3271.
Apr 30, 2013. EDMS # 8819331. See also: 2014 Louisiana Annual Network Assessment,

LDEQ, 4, available at

https://deq.louisiana.gov/assets/docs/Air/Ambient Air Data/2014/FINAL 2014 LANA with E
PA response letter.pdf; and Letter from Paul D. Miller, P.E., Administrator LDEQ, to Thomas
Diggs, Associate Director for Air, USEPA Region 6. RE: Request to remove PM2.5 BAM data
from comparison to NAAQS standards. July 1, 2013.

50 LDEQ. Statement of Basis. Lake Charles Cracker Project. Activity No. PER20130017
through PER20130025. Page 23. EDMS # 9317309. May 23, 2014.

See also: Letter from Paul D. Miller, P.E., Administrator LDEQ, to Thomas Diggs, Associate
Director for Air, USEPA Region 6. RE: Request to remove PM2.5 BAM data from comparison to
NAAQS standards. July 1, 2013.

See also: 2014 Louisiana Annual Network Assessment, LDEQ, 4, available at
https://deq.louisiana.gov/assets/docs/Air/Ambient Air Data/2014/FINAL 2014 LANA with E
PA response letter.pdf

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II. LDEQ Must Locate Ozone, Particulate Matter, and Carbon Monoxide Monitors

in Mossville to Best Comply with 40 CFR Part 58.

The LDEQ asserts that it maintains its ambient air monitoring network in accordance
with the quality assurance requirements of 40 CFR Part 58, Appendix A and B, utilizes the
methodology provided for each monitor in accordance with Appendix C, designs its network in
accordance with Appendix D, and locates its sites to meet all requirements of Appendix E.51 40
CFR Part 58 and its appendices guide states in the placement and maintenance of monitors. A
monitoring site may be chosen for several reasons. Appendix D lists six general site types:52

(a) Sites located to determine the highest concentration expected to occur in the
area covered by the network.

(b) Sites located to measure typical concentrations in areas of high population
density.

(d) Sites located to determine general background concentration levels.

(e) Sites located to determine the extent of regional pollutant transport among
populated areas; and in support of secondary standards.

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Comments regarding the 2020 Louisiana Annual Monitoring Network Plan June
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(f) Sites located to measure air pollution impacts on visibility, vegetation
damage, or other welfare-based impacts.

Further, EPA regulations on air monitor network assessments require that states "must
consider the ability of existing and proposed sites to support air quality characterization for areas
with relatively high populations of susceptible individuals (e.g., children with asthma) . . . ,"53

Mossville's population density, proximity to major emissions sources, and long-term
environmental health concerns make it a higher priority site for monitors for ozone and PM2.5
compared to Vinton and Carlyss (Table 2; Figs. 2,6&7). The Westlake ozone monitor, which was
deactivated at the end of 2014, was located in an area of higher population density, NATA
Respiratory Hazard, and NATA Air Toxics Cancer Risk compared to the remaining ozone sites
(i.e. Vinton and Carlyss) and the sole remaining NAAQS-comparable PM2.5 monitoring site (i.e.

51 See 2020 Louisiana Annual Monitoring Network Plan, p. 2.

52 40 CFR Part 58, Appendix D 1.1.1 (a)-(f).

53 40 CFR 58.10(d). Though we have seen no public notice or draft, LDEQ's 5-year network
assessment is due this year. See id. ("The state . . . Agency shall perform and submit to the
EPA

[RA] an assessment of the air quality surveillance system every 5 years. . . .") and
https://www.epa.gov/amtic/louisiana-network-assessments (reflecting DEQ's last 5-year
assessment in 2015).

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Vinton, Table 2). Thus, LDEQ's arbitrary decision to deactivate the Westlake ozone monitor and
McNeese PM2.5 monitor while retaining these monitors in Vinton (and an ozone monitor in
Carlyss) reflects a disregard for environmental justice and public health. Further, according to
EJScreen, the Westlake monitoring site is far closer to areas with high EJ Indices compared to
the Vinton and Carlyss monitors (Fig. 8). In other words, the communities near the Westlake
monitor are comparatively more vulnerable and therefore warrant more robust monitoring.

As described above, Mossville community members are surrounded by a large number of
industrial plants and facilities that emit exceptionally high levels of harmful air pollutants,
including thousands of tons per year of ozone precursors.54 In 2018, Sasol's Lake Charles
Chemical Complex (constructed on top of Mossville; Fig. 1) reported emitting 283 tons of PM2.5,
1,253 tons of NOx, 839 tons of VOCs, and 637 tons of CO.55 These emissions will inevitably
increase, because the Cracker Project was not fully operational in 2018.56 Yet, already, the
Cracker Project has earned Sasol's Lake Charles Chemical Complex the status of #2 "super

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Page 166 of 25

polluter" in the nation, based on 2018 reported emissions.57 Sasol and the numerous other
facilities near Mossville can reasonably considered "significant sources" and their impact on air
quality should thus be determined by locating a monitor in Mossville in accordance with
Appendix D 1.1.1 (c). Appendix D also lists the appropriate siting scale for a source impact
monitor site as "micro, middle, or neighborhood."58

The community's long-term public health concerns, location next to significant sources
of air pollution, and significant history of environmental injustice make the placement of PM2.5,
ozone, and carbon dioxide monitors essential. Accordingly, we request that LDEQ amend its
2020 Annual Monitoring Network Plan to include SLAMS monitors for ozone, PM2.5, and
carbon monoxide in the Westlake area, ideally in the town of Mossville, to determine the impact
of significant sources of air pollutants on the air quality in this heavily industrialized area.

54 https://www.eea.europa.eu/themes/air/air-qualitv/resources/glossary/ozone-precursor

55 Based on LDEQ ERIC 2018 Air Monitoring Data. Accessed June 14, 2020.

56 https://inspectioneering.com/news/2019-12-18/8926/sasol-successfullv-completes-
ethanecracker-proiect-at-lake-charles-plant.

57 Apr. 8, 2020, "Breath to the People, Sacred Air and Toxic Pollution," Environmental
Integrity Project for the United Church of Christ, p. 7, available at:

https://d3n8a8pro7vhmx. cloudfront.net/unitedchurchofchri st/pages/24840/attachments/original/l
582721312/FINAL BreathToThePeople 2.26.2020.pdf?1582721312

58 40 CFR Part 58, Appendix D, Table D-l "Relationship Between Site Types and Scales of
Representativeness."

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Table 2. Relevant characteristics for the 3-mile buffer around Ozone Monitors in Calcasieu
Parish, compared to Mossville.

O3 Monitor
Status

Population
Density"

Ozone
(PPb)"

Respiratory
Hazard^

Location

State
%tile

EPA

Region

%tile

Mossville^

None

243

34.0

95-100

Westlake

Inactive

30.262347

-93.284906

416

34.0

95-100

Carlyss

Active

30.140031

-93.368268

34.0

95-100

Vinton

Active

30.227567

-93.579778

109

33.7

95-100

"Relatively higher population density and air toxic risk of non-monitored areas emphasized with
bold text.

**Data from 2010 U.S. Census, accessed via EJScreen.

'Data from the 2014 National Air Toxics Assessment, accessed via EJScreen.

^See Figs. 1&2 for approximate Mossville geographic boundary.

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1.8 6329 FreretSt., Ste. 130, New Orleans, LA 70118-6248 tel 504 865.5789 fax
504.862.8721 https://law.tulane.edu/clinics/environrriental

Vinton O3

Westlake O3 Monitor (deactivated)

~u unction

Lake Chariea

n cftastir

B & """

Carlyss O3 Monitor

Grano Lire

May 31,2020

Ozone

(State Percentiles]

Data ''ol avalabie
Loss than 50 cercentile

1 286.895

50 -60 percentile 00 - 90 percentile ^ Cartyw Mor#lor
60 -70 percentile 90 - 95 percentile ^ Vinton Monitor
I 70 -B0 percentile ^ 96 - 100 percentile Westlake Monitor

Figure 8. Ozone EJ Index (state percentiles) from the U.S. EPA's 2014 National Air Toxics
Assessment relative to the locations of LDEQ ozone monitors (Westlake ozone monitor
deactivated in 2014). Map created in EJScreen in May 2020.

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1.9 6329 FreretSt., Ste. 130, New Orleans, LA 70118-6248 tel 504.865.5789 fax
504.862.8721 https://law.tulane.edu/clinics/environmental

II. LDEQ Must Conduct Air Monitoring in Mossville In Order to Comply with EPA

Environmental Justice Standards.

The Environmental Protection Agency (EPA) defines environmental justice as "the fair
treatment and meaningful involvement of all people regardless of race, color, national origin, or
income, with respect to the development, implementation, and enforcement of environmental
laws, regulation, and policies."36 According to the EPA, fair treatment means that "no group of
people should bear a disproportionate burden of environmental harms and risks, including those
resulting from the negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies."60 Further, EPA noted in guidance on air
monitoring that "monitors located in areas that have large low income and/or minority
populations may be of particular use for assessing environmental justice issues."37 Mossville is a
historic community with a rich African-American heritage, and many of its residents trace their
roots to the freed slaves who first settled this area.38

Mossville residents are clearly overburdened with industrial pollution, having a
Respiratory Hazard and Air Toxics Cancer Risk in the top 5% for both Louisiana and the country
as a whole. (Table 2). Further, EPA's Risk Screening Environmental Indicators (RSEI)
microdata indicate that Mossville has the most extreme toxic air pollution in Louisiana, with the
top 1% for toxicity-weighted concentration of industrial pollutants (Fig. 1).

In order to ensure facility compliance with their permits and statewide compliance with
NAAQS, LDEQ collects a variety of air quality data from both air monitoring stations positioned
throughout the state and facilities that emit pollutants. EPA uses the air monitoring data to

36 https://www. eva. sov/environmentaliustice 60 EPA,

Plan EJ 2014 at 3, available at

https.V/nepis. epa. sov/Exe/ZvPDF. csi/Pl OODFCO. PDF?Dockev=Pl OODFCO. PDF. See also Basis for Decision for
FG LA Complex, EDMS Doc. No. 11998452 (AI No. 198351), Part IX: Environmental Justice/Civil Rights Title VI
Issues, atpdf p. 35 (in which LDEQ endorses this definition).

37 EPA Ambient Air Monitoring Network Assessment Guidance, 2-3 (Feb. 2007),
https://www3.epa.gov/ttnamtil/files/ambient/pm25/datamang/network-assessment-guidance.pdf

38 David S. Martin, Toxic Towns: People of Mossville 'are like experiment.' CNN, (Feb. 26, 2010) ),
https://www.cnn. com/2010/HEALTH/02/26/toxic. town.mossville. epa/index.html. Tulane Environmental Law
Clinic

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Comments regarding the 2020 Louisiana Annual Monitoring Network Plan June
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determine whether Louisiana meets federal and state air quality standards and health
benchmarks, to forecast and report daily air quality through the Air Quality Index, and to track

trends in air pollution over time.63 Although these data provide valuable insight into regional air
quality, the National Environmental Justice Advisory Council has questioned the adequacy of
states' air quality monitoring network because of the distance between air monitoring stations
and the fact that these monitors do not reflect the air quality in environmental justice
communities.39 Mossville community members likewise believe the current air monitoring
network is inadequate and seek air quality information representative of pollution concentrations
in the community of Mossville, not just data at a regional scale.

The number of monitors in a given location typically reflects the population density of
the area with a minimum number of monitors prescribed by regulation; however, EPA
regulations indicate that state agencies may and should consider other factors when choosing
monitor locations.40 For ozone, a Metropolitan Statistical Area (MSA) of 50,000-350,000 people
will require between zero and one ozone monitors, depending on concentrations of O3 in the past
three years.41 The Lake Charles MSA requires a minimum of one ozone monitor, according to
LDEQ.42 However, EPA notes: "The total number of O3 sites needed to support the basic
monitoring objectives of public data reporting, air quality mapping, compliance, and
understanding Cb-related atmospheric processes will include more sites than these minimum
numbers required in Table D-2 of this appendix."43 According to LDEQ, there are currently two
ozone monitors in operation for Lake Charles MSA,44 which according to a 2019 U.S. Census
Bureau estimate has a population of 203,046.45

39 Id.

40 See 40 C.F.R. 58 appendix D.4.1(b).

41 Id.

42 2020 Louisiana Annual Network Assessment, LDEQ, 7 of 17. EDMS #12170694.

43 Id. at D.4.1(a).

44 In the Lake Charles MSA, LDEQ operates a SLAMS monitor for ozone at Carlyss, La., and a special purpose
monitor (SPMS) at Vinton, La. http://www. dea. louisiana. gov/page/carlvss;

https://www.dea. louisiana. gov/page/vinton

(last visited June 17, 2020); see also 2020 Louisiana Annual Network Assessment, LDEQ, 9, 16ofl7.

45 United States Census Bureau, Quick Facts, Calcasieu Parish, Population Estimates, July 1,

2019, https://www.census.gov/quickfacts/fact/table/calcasieuparishlouisiana,lakecharlescitylouisiana#.

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Comments regarding the 2020 Louisiana Annual Monitoring Network Plan June
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While Calcasieu Parish is in compliance for the number of ozone monitors, Mossville
residents rank high on EJScreen's respiratory hazard index, implicating the need for robust
monitoring of ozone and particulate matter (Table 2). These two pollutants are especially

63 National Environmental Justice Advisory Council, Recommendations and Guidance for EPA
to Develop Monitoring Programs in Communities, 26 (August 2017);

https://www.epa.gov/sites/production/files/2018-01/documents/monitoring-final-10-6-17.pdf.
relevant for evaluating human health impacts, as they have been linked to adverse health
outcomes, even at low concentration levels.46 The EPA concluded in 2013 that ozone pollution
poses serious health threats, including respiratory harm, increased likelihood of early death,
cardiovascular harm, harm to the central nervous system, and reproductive and developmental
harm.72

Ozone is formed from the emissions of the facilities surrounding Mossville. Ozone is not
emitted by sources but is formed in the atmosphere by a series of complex chemical reactions
between oxides of nitrogen (NOx), volatile organic compounds (VOC), and other compounds.
Because ozone is more likely to form in areas with major sources of both NOx and VOCs, EPA
guidance recommends that monitors be located in areas of maximum precursor emissions in
order to be most useful for modeling and control strategy design.47 EPA guidance also notes that
the "dominant activity for producing NOxis combustion processes, including industrial and
electrical generation processes," and the chemical industry is a major producer of VOC
emissions.48 The community of Mossville is surrounded on all sides by major emitters of both
NOx and VOCs, increasing the likelihood of ozone formation. Such permitted emissions include:

1. Conoco Philips, Lake Charles Refinery - Area A, 2623-V17, AI2538, located at 2200
Old Spanish Trail, Westlake, LA 70669. According to the Air Permit Briefing Sheet for
the facility's Title V regular permit modification,49 the permit allows the following
emissions of NOx and VOC:

46 Brunekreef B. ; Holgate, S. T. Air pollution and health. Lancet 2002, 360, 1233-1242. 72 U.S. EPA, Integrated
Science Assessment for Ozone and Related Photochemical Oxidants, 2013. EPA/600/R-10/076F.

47 EPA ambient air monitoring network assessment guidance, 2-2 (2007),

https://www 3. epa.gov/ttnamtil/files/ambient/pm25/datamang/network-assessment-guidance.pdf.

48 EPA Guideline on Ozone Monitoring Site Selection, 2-5 (1998),
https.V/nepis. epa.gov/Exe/ZyP URL. cgi ?Dockey=2000D45M. TXT.

49 Title VRegular Permit Modification, Air Permit Briefing Sheet, Air Permits Division, LDEQ, (Jan. 22, 2020),
EDMSDoclD: 12037107.

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Pollutant

Permitted Emissions in Tons per Year

NOx

592.86

VOC

332.97

2. Entergy, Roy S. Nelson Electric Generating Plant, AI 19588, located at 3500 Houston
River Road, Westlake, LA 70669. According to the Air Permit Briefing Sheet for the
facility's Title V regular permit modification,50 the permit allows the following emissions
of NOx and VOC:

Pollutant

Permitted Emissions in Tons per Year

NOx

19,368.67

VOC

347.35

3. Sasol Chemicals (USA) LLC — Ethylene Unit, AI 3271. LDEQ is currently reviewing
Sasol Chemicals (USA) LLC's Part 70 operating permit renewal and modification for its
Ethylene Unit within its Lake Charles Chemical Complex.51 Potential emissions of NOx
and VOC include:

Pollutant

Permitted Emissions in Tons per Year

NOx

582.62

VOC

405.02

Mossville is an environmental justice community struggling for every breath. Placing PM2.5,
ozone, and CO monitors within the community would provide LDEQ and EPA with data
representative of the citizen's lived experience, helping both agencies tailor policies and
initiatives in furtherance of environmental justice.

IV. Conclusion

50 Title VRegular Permit Modification, Air Permit Briefing Sheet, Air Permits Division, LDEQ, (May 23, 2016),
Page 4. DocID: 10204451.

51 See LDEQ Permit Approval Letter, January 21, 2017 (12014011), Air Permit Briefing Sheet, p. 1.

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Comments regarding the 2020 Louisiana Annual Monitoring Network Plan June
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Page 173 of 25

For the foregoing reasons, community members of Mossville respectfully request that LDEQ
amend its 2020 Annual Monitoring Network Plan to include SLAMS PM2.5, ozone, and carbon
monoxide monitors in Mossville to determine the impact of significant sources of air pollutants
on the air quality in Mossville.

Substantially Prepared by,

K. Blair Johnson, Law Student
Mark Allain, Law Student
TULANE ENVIRONMENTAL LAW
CLINIC

6329 Freret Street
New Orleans, LA 70118
504-865-5789

Sincerely,

/s/ Lisa Jordan

Lisa W. Jordan, Director
Devin Lowell, Supervising Attorney
TULANE ENVIRONMENTAL LAW
CLINIC

6329 Freret Street
New Orleans, LA 70118
504-865-5789

Counsel for Mossville community members

Kimberly Terrell, Ph.D., Staff Scientist
TULANE ENVIRONMENTAL LAW CLINIC
6329 Freret Street
New Orleans, LA 70118
504-865-5789

6329 Freret St.

Tulane Environmental Law Clinic

Ste. 130, New Orleans, LA 70118-6248 tel 504.865.5789 fax 504.862.8721
https://law.tulane.edu/clinics/environmental

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voluntary property purchase program

Sasol North America Inc.

For more information:

Visit www.sasolvppp.com or contact Community Interaction Consulting, Inc. (CIC) at (337) 310-8200 or visit the
Information Center at the former Mossville Elementary School located at 3301 Old Spanish Trail Westlake, LA 70669

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1.10 Content

page number

Letter from Sasol 177

Introduction 178

Program Area 180

Property Owners - Steps for Participating in the Program 181

Tenants - Steps for Participating in the Program 185

Description of Program Benefits available to Property Owners and Tenants 187

Clarification Questions and Answers 191

Program Definitions 196

Appraiser Instructions 199

Sasol Appraisal Request and Authorization Form 200

Sasol Renter Benefits Request Form 201

The information contained in this Handbook provides a description of the voluntary
property purchase program (Program) sponsored by Sasol North America Inc. (Sasol). It is
not an offer to buy property. Sasol may at any time, at its sole discretion, suspend or
terminate the Program or expand, reduce or modify the Program Area.

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-------
Letter from Sasol

July 18, 2013
Dear Neighbor,

You may be aware that Sasol North America Inc. (Sasol) has plans to expand our petrochemical plant
near your community.

In late 2012, Sasol announced its plan to start the front-end engineering and design work for a world-
scale ethane cracker and gas-to-liquids (GTL) facility at our existing site in Westlake, Louisiana. These
projects will use natural gas to make a variety of chemical products and transportation fuels, including
GTL diesel. The projects are expected to have a significant positive effect on job creation and tax
revenue for both the local region and the State of Louisiana.

We recognize that our growth plans and related property acquisitions will result in the expansion
of our facility toward our neighbors to the west and northwest of our existing facility. Although a
final investment decision on whether to start construction on the ethane cracker and GTL facility
will not be made until 2014 and 2016, respectively, we are taking steps now to address the
concerns of our neighbors.

Sasol continuously strives to be a good corporate citizen and to communicate forthrightly with our
neighbors. In the spirit of being a good neighbor to those residents that will be affected by our growth
plans, we are pleased to offer our residential neighbors to the west and northwest of our existing
operations an opportunity to sell their properties to Sasol through a voluntary property purchase
program (Program).

The Program is entirely voluntary. It is designed to give you the option to sell your property and move
to a residential area of your choosing. The Program will furthermore provide relocation support if you
rent your home, but only if your landlord also participates in the Program.

The Program will start in early August with the opening of a neighborhood Information Center at the
former Mossville

Elementary School located at 3301 Old Spanish Trail Westlake, LA 70669. Sasol selected Community
Interaction Consulting, Inc. (CIC), our real estate consultants, to manage the Program on our behalf.
Starting in early August, CIC staff will be available between 9am and 5pm Mondays through Fridays to
discuss the Program with you and answer any questions you may have.

We understand that relocating can be a difficult decision, and that you will want to take time to
consider the advantages of the Program being offered. This Handbook contains more information
about the Program. We encourage you to read it thoroughly and contact CIC if you are interested in
participating in the Program and/ or if you have any questions about the Program.

Sincerely,

MIKE THOMAS

VICE PRESIDENT: US OPERATIONS

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3 Introduction

The Program definitions on pages 27 to 30 of this Handbook apply to all sections of the Handbook.

The Program sponsored by Sasol gives you an opportunity to sell your Property and relocate to a
Property outside of the Program Area. Participation in the Program is entirely voluntary. The details of
the Program are contained in this Handbook.

Easy access to the Program is provided through our Information Center, staffed by CIC and located at
the former Mossville Elementary School at 3301 Old Spanish Trail Westlake, LA 70669. CIC staff is
available to meet with you privately to go over all the features of the Program and assist you in
understanding the potential and applicable Program options available to you.

The Program will be available to you if you, as of July 12, 2013, owned and held good title to residential
Property in the Program Area (Property Owner, as defined) or are a tenant occupying a residential
Property in the Program Area (Tenant, as defined) and your landlord participates in the Program. The
Program Area is described on page 7 and 8 of the Handbook.

Commercial property and places of worship do not form a part of the Program. However, commercial
property owners and religious leaders may approach Sasol outside of the Program to request Sasol to
consider the purchase of their properties by contacting a CIC representative at the Information Center.
Sasol will consider such requests from commercial property owners or religious leaders on a case-by-
case basis.

In order to determine if you are eligible for the Program Benefits, you must first register your interest in

the Program by completing and submitting:

(i) an Appraisal Request and Authorization Form, if you are a

Property Owner; or (ii) a Renters Benefits Request Form, if you are a

Tenant of a residential Property.

There is no cost to you in registering your interest in the Program. Sasol will pay for all costs
associated with any appraisals performed under the Program. Appraisal Request and Authorization
Forms and Renters Benefits Request Forms can be submitted in person to CIC at the Information
Center between Monday, August 12, 2013 and Wednesday, December 4, 2013.

Please note, if you are a Tenant as of July 12, 2013, you will only be eligible to receive benefits under
the Program if your landlord has entered into a Purchase and Sale Agreement with Sasol, demonstrated
that he/she has insurable title, and has confirmed that all matters between you and the landlord have
been resolved (lease terminated, rent payments current, etc.).

The Information Center will be open Mondays to Fridays from 9:00 a.m. to 5:00 p.m. and evenings
and weekends by appointment. You can contact the Information Center at (337) 310-8200 to
schedule an appointment. The support services provided by the Information Center are available
at no cost to you and meeting with a CIC representative does not in any way obligate you to sell
your Property.

The Program is entirely voluntary. Requesting an appraisal does not commit you to sell your Property.

Having an appraisal completed simply allows Sasol to present you with an Offer to purchase your
Property. Once you have received an Offer, you can choose whether or not to accept it.

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The determination of your eligibility to participate in the Program, and the Program Benefits to which
you may be entitled, shall be made by Sasol in its sole and absolute discretion.

Sasol may at any time, at its sole discretion, suspend or terminate the Program or expand, reduce or
modify the Program Area, without liability. Of course, Sasol will honor the terms of any signed
Purchase and Sale Agreements and outstanding Offers made by Sasol prior to any such change.

Note: You should consider obtaining professional advice from your attorney and financial advisor
regarding your participation in the Program.

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Program Area

The Program Area consists of the Improved and Unimproved Properties on, or abutting to any of the
streets below, which streets are also depicted on the aerial map on page 8.

Commercial property and places of worship within the Program Area do not form part of the Program.
Commercial property owners and religious leaders may approach Sasol outside of the Program to
request Sasol to consider the purchase of their properties by contacting a CIC representative at the
Information Center. Sasol will consider such requests from commercial property owners or religious
leaders on a case-by-case basis.

Properties on, or abutting to, the streets below form part of the Program Area:

all of

Benjamin Street;

Ferndale Drive;

Pattie Moss Road;

Braxton Lane;

Fisher Street;

Perkins Avenue;

Brentwood Drive;

Harvey Miller Road;

Prince Street;

Cedar Street;

J Clophus (Reynaud Road);

Princess Street;

Charles Avenue;

Junius Road;

Pryor Street;

Church Street;

King Street;

Queen Street;

Duke Street;

Lyons Avenue;

Reeves Avenue;

Duchess Street;

Mary Street;

Smith Road;

Earl Street;

Moss Avenue;

Venable Drive;

Edna Hardy Lane;

Murrell Road;

Wallace Road; and

Edwards Street;

Ora Street;

Water Tower Road.

Fairmont Drive;

Park Street;

all of Prater Road

from the Union Pacific Rail Road going north to Old Spanish Trail;

• all of the south side of Old Spanish Trail from Goodley Road to 3702 Old Spanish Trail. All of the
north side of Old Spanish Trail from 3345 Old Spanish Trail to 3701 Old Spanish Trail;

• all of Evergreen Road from Old Spanish Trail to 2282 Evergreen Road and then from 2732 to 2788
Evergreen Road;

• Independence Road from 2705 Independence Road to Houston River Road;

• the south side of Houston River Road from 3919 Houston River Road to, and including, the west
side of Evergreen Road;

• Coach Williams Drive north of 905 Coach Williams Road; • Goodley Road from 3408 to the end of
the road; and

• the east side of Bryant Street.

The Program Area as described on page 7 is also depicted on the aerial map below:

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Sasol may at any time, at its sole discretion, suspend or terminate the Program or expand, reduce or
modify the Program Area, without liability. Of course, Sasol will honor the terms of any signed
Purchase and Sale Agreements and outstanding Offers made by Sasol prior to such change.

5 Property Owners - steps for participating in the Program

Participation in the Program is entirely voluntary. The Program for Property Owners is explained
in the five steps described in figure 1 below. If you have any questions regarding these steps or
what is required from you to participate in the Program, please contact a CIC representative at

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the Information Center and/or refer to the Clarification Questions and Answers (Q&A) in the
Handbook on pages 21 to 26.

step 1 step 2 LJ step 3 LJ step 4 LJ step 5

determine if registering your determining the Closing and

^ srss: i ^ sZZSS" W

Figure 1: Steps available to Property Owners for participating in the Program

step 1: Determining if you are eligible

First, you need to determine whether you are eligible to participate in the Program. You are eligible
to participate in the Program if you, as of July 12, 2013, owned and had title to either an Improved
Property or an Unimproved Property in the Program Area, and you continue to own and hold good
title to such Property. You must sell all of your Property in the Program Area to Sasol and relocate
to a new property outside the Program Area in order to receive Program Benefits.

There are three (3) types of Property Owners, namely:

• Owner Occupant, if you own, hold good title to and occupy an Improved Property;

• Rental Property Owner, if you own, hold good title to and lease an Improved Property to a third
party or if such Improved Property is vacant; or

• Unimproved Property Owner if you own and hold good title to an Unimproved Property.

The Program Benefits that are applicable to you are described on pages 16 to 20 of this Handbook,
step 2: Registering your interest in the Program

The second step to participating in the Program is to contact a CIC representative at the Information
Center and register your interest in participating in the Program by completing and submitting the
Appraisal Request and Authorization Form on page 32 of the Handbook before December 4, 2013. Only
one of the Property Owners for a Property has to sign the Appraisal Request and Authorization Form,
but aM_Property Owners must sign the deed that transfers the Property to Sasol.

Signing an Appraisal Request and Authorization Form does not commit you to sell your Property in
the Program Area to Sasol. It simply authorizes CIC to arrange to have all of your Property located in
the Program Area appraised, surveyed, and to obtain a preliminary title search from a local law firm.

If you register your interest in participating in the Program and complete and submit an Appraisal
Request and Authorization Form before October 4, 2013 you will qualify for an Early Sign-Up Bonus of
$1,000 that is payable to you upon Closing.

You will be required to provide the following documentation as part of your Appraisal Request:

• some form of government issued picture identification such as a current driver's license, passport,
or Louisiana State Identification Card; and

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• deed and/or an abstract for the Property verifying ownership and residency as of July 12, 2013 or
other documentation verifying ownership and residency such as a last will and testament or
tax statement; and/ or

• information on any Tenants residing in, or on your Improved Properties, including a lease
agreement or similar documentation to verify that such Tenants were Tenants on July 12, 2013.

In completing the Appraisal Request and Authorization Form you will be required to choose three (3)
appraisers from a list of approved local, actively practicing appraisers that are licensed by the State of
Louisiana. The three (3) appraisers will consist of two (2) primary appraisers and one (1) reserve
appraiser. The reserve appraiser will be used only if the difference between the appraised prices
from the two (2) primary appraisers is not equal to, or less than 10% of the higher appraisal.

You do not have to choose an appraiser from the list of approved local appraisers. You may nominate
an appraiser that is not on the list, and the nominated appraiser will be accepted by Sasol so long as the
nominated appraiser meets all of the following requirements:

• full-time real estate appraiser that is licensed by the State of Louisiana; and

• holding either a Certified General Appraiser License or a Certified Residential Appraiser License; and

• member of the local Multiple Listing Service and has additional access to recent comparable sales;
and

• willing to prepare the appraisal of your residential Property in accordance with the appraiser
instructions, as described in this Handbook.

step 3: Determining the Average Appraised Price

The third step of the Program for Property Owners comprises the determination of the Average
Appraised Price for your Property and any improvements on it as of July 12, 2013. A CIC representative
will order appraisals of your Property using the two (2) primary appraisers you selected at no cost to
you. Each appraiser will independently develop an appraised price for your Property using a standard
format (Appraisal Institute form AI.100). Only appraisals ordered by CIC will be paid for by Sasol and
used in determining the Average Appraised Price.

Improvements to the Property made after July 12, 2013 will not be considered in the appraisal of the
Property.

Where a Property Owner owns two (2) Properties that are contiguous of which one (1) is defined as an
Unimproved Property, such Unimproved Property will be included in the appraisal of the Improved
Property.

You are encouraged to provide the appraiser with all information that you believe is relevant to
determine the appraised price of your Property.

If the difference between the two appraisals requested by CIC is:

• equal to, or less than 10% of the higher appraisal, then the average of the two appraisals will be
equal to the Average Appraised Price for purposes of determining the Offer for the Property; or

• greater than 10% of the higher appraisal, the CIC representative will arrange for an appraisal by the
third (reserve) appraiser of your choice. The two highest appraised prices will then be averaged to
establish the Average Appraised Price for purposes of determining the Offer for the Property.

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Copies of the appraisals will be made available to you and Sasol at the end of the appraisal process.
Appraisers must follow the Uniform Standards of Professional Appraisal Practice (USPAP). Under
USPAP's Confidentiality Clause of the Ethics Rule, the appraiser may not disclose (1) confidential
information; or (2) assignment results to anyone other than the client (which in this case is CIC).
Accordingly, any questions or comments you may have about an appraisal must be sent to the CIC
representative and the CIC representative will then forward your questions and comments to the
appraiser for review and consideration. In the event that, as a result of your questions or further
information provided regarding the appraisal, the appraiser changes his/ her appraised price, Sasol's
Offer will change accordingly, subject, however, to the process to determine the Average Appraised
Price as described above.

step 4: Accepting Sasol's Offer

Once the appraisal process is completed, the fourth step is for Sasol to make an Offer to you for your
consideration. The Offer will be in the form of a proposed Purchase and Sale Agreement prepared by
Sasol. Should Sasol make you an Offer, you will have ninety (90) days from the date of the Offer to
sign and accept the Purchase and Sale Agreement. Acceptance will be indicated by returning the
original and unaltered copy of the signed Purchase and Sale Agreement to a CIC representative at the
Information Center. The Effective Date of the Purchase and Sale Agreement will be the last day that
the buyer and/ or seller signs the Purchase and Sale Agreement. All Property Owners are required
to sign the deed that transfers the Property to Sasol.

The proposed Purchase and Sale Agreement will include the Purchase Price, qualifying Program
Benefits and the terms and conditions relating to the purchase and sale of your residential Property.
More details on the determination of the Purchase Price and qualifying Program Benefits applicable to
different ownership categories are provided as part of the Q & A on pages 21 to 26.

The Offer will contain conditions that are normal and customary for real estate transactions, including
but not limited to you having legal, marketable and insurable title to the Property. Furthermore, your
participation in the Program and receipt of any Program Benefits will require you to release Sasol
from any and all past, present or future property claims against Sasol relating to your Property at
Closing.

The Offer made by Sasol and the contractual terms and conditions of the Purchase and Sale
Agreement are non-negotiable. A Purchase and Sale Agreement that has been altered by you or your
representative will not be accepted or signed by Sasol and will not be a legally binding contract obliging
Sasol to purchase the Property in accordance with such amended Purchase and Sale Agreement.

Note: You are encouraged to obtain legal and other professional advice (including, but not limited to
financial and tax advice) on the Offer,
step 5: Vacating the Property and Closing

Closing will take place when all of the conditions of the sale process are fulfilled to the satisfaction of
Sasol. Provided, that Closing will not be later than six (6) months from the Effective Date of the
Purchase and Sale Agreement. However, a Property Owner may request an extension beyond the
original six (6) months from the Effective Date and Sasol may, at its sole discretion, extend the period to

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Closing by giving written notice of such extension to the Property Owner. All Property Owners must
sign a deed transferring the Property to Sasol before the sale will be closed.

Sasol will pay all Normal Seller Closing Costs directly attributable to the sale of your Property, except for
the costs for, or related to mortgages, real estate broker commissions, prorated real estate taxes, liens
and judgments. These exceptions must be paid by you and cleared from the title before Closing can
take place.

All Properties must be vacated on, or before Closing. You must remove all possessions and leave the
Property "Broom Clean" and in a "Neat and Safe Condition". The requirements to qualify for the Clear
Site Bonus, in addition to the "Neat and Safe Condition" will be included in the Purchase and Sale
Agreement that Sasol submits to you.

"Broom Clean" means that all possessions from any structures on the Property including, but not
limited to, furnishings, automobiles, trucks recreational vehicles, recreational equipment, lawn
maintenance equipment, tractors, trailers, tires, paints, household chemicals, automobile and motor
maintenance products, fertilizers, and weed and pest control products must be removed.

"Neat and Safe Condition" means that all utilities including water, sewer, electric, gas, telephone and
cable service must be disconnected from the Property at the street (or at the main) so that all
improvements on the Property may be safely removed in accordance with the utility providers'
guidelines. Above ground swimming pools must be drained and modified such that they will not hold
water. The location of septic tanks and wells must be clearly marked.

An authorized representative of Sasol or CIC will inspect the Property at Closing, to ensure that the
Property complies with the requirements described above and to determine if you qualify for the Clear
Site Bonus.

The Program Benefits that you qualify for will be paid to you at Closing.

Tenants - steps for participating in the Program

Participation in the Program is entirely voluntary. The Program available for a Tenant is explained in
the three steps described in figure 2 below. If you have any questions regarding these steps or what is
required from you to participate in the Program, please contact a CIC representative at the Information
Center and/ or refer to the Q & A in the Handbook on pages 21 to 26.

step 1

determining if
you're eligible
as a Tenant

Figure 2: Steps available toTenants for participating in the Program
step 1: Determining if you are eligible

First, you need to determine whether you are eligible to participate in the Program. You are eligible
to participate in the Program if you, as of July 12, 2013, were a Tenant and you continue to be a
Tenant of the Property and your landlord participates in the Program.

step 2

registering your
interest in
the Program

step 3

vacating the
Property and
Closing

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A Tenant is defined as "a person or persons named as (a) Tenant(s) in a lease that actively and
consistently rent(s) and reside(s) in a Rental Property and for whom the said residence is his/her or
their primary residence as of July 12, 2013, and does not include any persons or family members
occupying the Property who are not named as a Tenant in the lease."

The Program Benefits that are applicable to Tenants are described on pages 16 to 20 of the Handbook,
step 2: Registering your interest in the Program

If you are a Tenant, the second step to participating in the Program is to contact a CIC representative at
the

Information Office and register your interest in participating in the Program by completing and
submitting the Renters Benefits Request Form on page 33 of the Handbook before December 4, 2013.

Submitting a Renters Benefits Request Form does not guarantee that you will qualify for the Program
Benefits available to Tenants under the Program. Your landlord, as Property Owner must have
committed to sell the Property you are renting in the Program Area to Sasol before you will be eligible
to participate in the Program and/ or receive any of the Program Benefits applicable to Tenants.

If you register your interest in participating in the Program and submit the Renter Benefits Request
Form before

October 4, 2013 you will be in a position to qualify for an Early Sign-Up Bonus of $1,000 that will be
payable upon Closing. If a Closing between Sasol and your landlord (the Property Owner) is not
achieved for any reason, the Early Sign-Up Bonus will not be paid out.

You will be required to provide the following documentation as part of your request to qualify for the
Program Benefits available to a Tenant under the Program:

• current government issued picture identification like a current driver's license, passport, or
Louisiana State Identification Card; and

• documents to verify residency, such as (i) a lease for the Rental Property, or (ii) copies of canceled
rent payment checks for the months of June and July 2013, and/or (iii) copies of utility payment
statements covering the months of June and July 2013 that identify the Rental Property by address.

step 3: Vacating the Property and Closing

At Closing you will become entitled to the Program Benefits available to Tenants if:

• your landlord (the Property Owner) has accepted an Offer from Sasol and has entered into a
Purchase and Sale Agreement with Sasol for the Rental Property occupied by you; and

• Sasol is satisfied that the Property Owner can transfer insurable title to the Property; and

• you and the Property Owner have executed an agreement that your lease has been terminated and
all matters between you and the landlord are settled; and

• you have executed a release agreement with Sasol for the acceptance of the Program Benefits
available to you under the Program and all conditions contained in such agreement have been
fulfilled to the satisfaction of Sasol; and

• you provide proof to Sasol and CIC that you and any co-occupants and family members residing
with you have vacated the residence and your new residence is outside of the Program Area.

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7 Description of Program Benefits available to Property Owners and
Tenants

For the purpose of the Program there are three (3) Property Owner categories and a Tenant category.
The table below is a list of the potential Program Benefits you may qualify for and receive if you are an
eligible Owner Occupant, Rental Property Owner, Unimproved Property Owner, or Tenant. A detailed
description of the Program Benefits is provided below.

Note: It is recommended that you obtain advice from a tax professional because the Purchase Price
and all payments of allowances and bonuses will be reported to the Internal Revenue Service on
Form 1099.

Program Benefit

Owner Occupant

Rental Property Owner

Unimproved Property
Owner

Tenant

Minimum Appraised
Price

$100,000

$75,000

$5,000

N/A

Premium Payment over
Average Appraised Price

60%

50%

40%

N/A

Early Sign-Up Bonus

$1,000

Miscellaneous Expense
Allowance

$8,000

N/A

$4,000

Rent Disruption
Allowance

$1,0001

$1,000

N/A

Professional Advice
Allowance

$500

Closing Cost Assistance
Allowance (maximum)

$5,000

N/A

$5,000

Curative Title Work
Allowance
(maximum)

$5,000

N/A

Clear Site Bonus (maxi-
mum)

$15,000

N/A

Advances

Equity

N/A

Benefits

Home Finding
Assistance

Eligible

Normal Seller Closing
Cost2

Paid by Sasol

N/A

1. Available to an Owner Occupant who also owns and leases an Improved Property to a Tenant.

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2. The Program pays for Normal Seller Closing Costs on the sale of your Property. However, mortgages, real
estate broker commissions, pro-rated real estate taxes, liens, and judgments and costs related to same are
not covered under the Program and must be paid by the Property Owner(s).

Property Purchase Price

The Purchase Price offered for a Property will be determined by the higher of the Average Appraised
Price orthe Minimum Appraised Price plus the Premium Payment.

Minimum Appraised Price

A Minimum Appraised Price has been established for the Program, the amount of which will depend
on whether you qualify as an Owner Occupant, Rental Property Owner or Unimproved Property
Owner as described in the table on page 16. Therefore if the Average Appraised Price of your
Property is below the Minimum Appraised Price, the Purchase Price for your Property will be
determined using the Minimum Appraised Price.

Premium Payment

The Premium Payment is available to Property Owners for Properties in the Program Area and is
intended to assist you in purchasing property outside of the Program Area. It forms part of the Offer
for your Property and will be paid at Closing and is calculated as a percentage of the Average Appraised
Price. The amount of such Premium Payment will depend on whether you qualify as an Owner
Occupant, Rental Property Owner or Unimproved Property Owner as described in the table on page 16.

Early Sign-Up Bonus

If a Property Owner completes and submits an Appraisal Request and Authorization Form or a Tenant
completes and submits a Renters Benefits Request Form on, or before October 4, 2013 such Property
Owner or Tenant will qualify for an Early Sign-Up Bonus of $1,000 that is payable at Closing. The Early
Sign-Up Bonus is available only once to a Property Owner, regardless of the number of Properties he/
she may own, provided further that where a Property is owned by multiple Property Owners, the Early
Sign-Up Bonus will be made once to the Property Owner(s) who made the Appraisal Request for such
Property.

Miscellaneous Expense Allowance

A Miscellaneous Expense Allowance is payable to an Owner Occupant ($8,000) and Tenant ($4,000) at
Closing once all conditions to Closing have been fulfilled to the satisfaction of Sasol. The Miscellaneous
Expense Allowance is intended to cover moving and personal relocation expenses for Owner Occupants
and Tenants. In cases of multiple Property Owners, this payment will be made once to the Property
Owner(s) who occupies the Property.

Rent Disruption Allowance

A Rent Disruption Allowance of $1,000 is payable to you per Property if you are an Owner Occupant or
Rental Property Owner and you own and lease an Improved Property to a Tenant. A Rental Property
Owner will not be entitled to this Rent Disruption Allowance if an Improved Property is vacant as of July
12, 2013. The Rent Disruption Allowance will be payable to an Owner Occupant or Rental Property
Owner at Closing, provided that all Tenants have fully vacated the Property and such Property is
"Broom Clean" and in a "Neat and Safe Condition" at that date. An authorized representative of Sasol
or CIC will inspect the Property prior to Closing to ensure that these requirements have been met.

Professional Advice Allowance

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A Professional Advice Allowance of $500 will be paid to every Property Owner (defined as "a person or
persons owning and holding good title to a Property as of July 12, 2013") at the time of the Sasol Offer.
A similar amount will be payable to a Tenant (defined as "a person or persons named as (a) tenant(s) in
a lease that actively and consistently rent(s) and reside(s) in a Rental Property and for whom the said
residence is his/her or their primary residence as of July 12, 2013 and does not include any persons or
family members occupying the Property who are not named as a Tenant in the lease") at the time when
his/ her other benefits are paid at Closing. The Professional Advice Allowance is only available once to a
Property Owner, as defined, regardless of the number of Properties owned. The Professional Advice
Allowance is intended to assist a Property Owner and Tenant in the payment of any costs incurred for
any legal, financial, and/or tax advice and assistance they may obtain in reviewing the Purchase and
Sale Agreement and any other questions regarding the Program. If you are a Property Owner, the
Professional Advice Allowance is yours to keep regardless of your decision to participate any further in
the Program.

Closing Cost Assistance Allowance

If you are an Owner Occupant or Tenant and are in the process of purchasing a new residence outside
the Program Area, and a fully executed Purchase and Sale Agreement with Sasol is in place, please meet
with a CIC representative regarding your eligibility for a Closing Cost Assistance Allowance. The CIC
representative will need to have the documents listed below to establish your eligibility:

• a fully executed Purchase and Sale Agreement between Sasol and all of the Property Owners in title
to your Property; and

• a title report indicating that the Property Owner(s) has insurable title acceptable to Sasol; and

• a copy of the fully executed purchase and sale agreement for your new home that is outside of the
Program Area; and

• a preliminary closing statement from your closing agent that indicates the closing cost you have to
pay at closing.

If you qualify for a Closing Cost Assistance Allowance, Sasol will pay up to $5,000 in total, per Owner
Occupant or Tenant, toward the normal and customary buyer closing costs for your new home outside
of the Program Area such as an appraisal, survey, mortgage loan origination fee and/or discount points,
home inspection report, recording fees, transfer tax, closing fee, lender and owner title insurance
policies, and home warranty plan. Pre-paid items such as pro-rated taxes and assessments, loan
interest, escrow account deposits, and hazard insurance premiums are not considered normal and
customary buyer closing costs under the Program.

If you qualify, the Closing Cost Assistance Allowance will be paid directly to the closing agent for your
new home on the closing date of the purchase of your new home, so long as the closing is within ninety
(90) days of vacating the Property by the Owner Occupant or Tenant.

Note: Please advise your closing agent that it may take up to seven (7) business days from the time
CIC receives the preliminary closing statement from your closing agent to process and wire the
Closing Cost Allowance to such closing agent.

Curative Title Work Allowance

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An allowance of up to $5,000 is available to cover legal costs associated with curing title problems. This
allowance does not cover liens, judgments, mortgages, or delinquent taxes. A CIC representative will
advise you about qualifying for this allowance after he/ she has received and reviewed the title report
for your Property that was prepared by the law firm(s) as approved by Sasol. The Curative Title Work
Allowance will be paid directly to a law firm approved by Sasol. The list of approved law firms is
available on request from CIC.

Clear Site Bonus

Property Owners may be eligible for a Clear Site Bonus of up to $15,000 depending on the nature of the
Property and number of structures that need to be removed. To be eligible for this bonus, the Property
must be in a "Neat and Safe Condition" and all structures, and all personal property must be removed
from the Property (not buried on the land) before Closing. Below ground swimming pools must be filled
with clean soil or sand, which will be provided by Sasol. All well equipment must be removed as well. A
Sasol representative will determine the exact procedures for clearing the site, and the amount of
eligible Clear Site Bonus after inspecting your Property and/or reviewing the appraisals. The
requirements for the Clear Site Bonus will be included in the Purchase and Sale Agreement provided by
Sasol.

Obtaining an Equity or Benefits Advance

Equity Advance: The Program may provide assistance to an Owner Occupant in obtaining an Equity
Advance of up to 90% of the equity in the Property based on all eligible payments, allowances, and
bonuses due to such Owner Occupant at the time of the request for an Equity Advance if such funds are
needed to:

• make a deposit on another property outside of the Program Area;

• close a sale on a new property outside the Program Area;

• pay moving expenses or other related costs; and • clear the site of all improvements and
structures.

A CIC representative will assist such Owner Occupant in obtaining an Equity Advance in such
circumstances. The amount of the Equity Advance will be deducted from the final payment of the
outstanding Purchase Price upon Closing.

To obtain an Equity Advance, all Owner Occupants of a Property must have accepted the Offer, by
signing the

Purchase and Sale Agreement, have demonstrated that they can transfer insurable title to their
property, sign an Equity Advance addendum to the Purchase and Sale Agreement covering the amount
of the Equity Advance, and be willing to sign a release form, whereby you agree to release Sasol from
any and all past or present property claims against Sasol.

Benefits Advance: The Program may provide assistance to a Tenant in obtaining a Benefits Advance
of up to 90% of all eligible payments and allowances due to such Tenant at the time of the request for
a Benefits Advance if such funds are needed to:

• make a security deposit on another leased home outside
of the Program Area; • close a sale on a new home outside of the
Program Area; and • pay moving expenses or other related
costs.

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A CIC representative will assist such Tenant in obtaining a Benefits Advance in such circumstances. The
amount of the Benefits Advance will be deducted from the final payment of the outstanding Program
Benefits at Closing.

For a Tenant to obtain a Benefits Advance, all Property Owners must have accepted Sasol's Offer and
demonstrated that they can transfer insurable title to their Property.

Home Finding Assistance

If you are a Property Owner who received a Purchase and Sale Agreement to sell your Property to Sasol
or you are a Tenant and are considering purchasing a new home outside the Program Area, please
contact a CIC representative. The CIC representative can refer you to a local real estate broker that is
familiar with the Program for assistance in purchasing property outside of the Program Area.

Normal Seller Closing Costs

The Program pays for costs that are normally payable on property sales, such as costs related to the
preparation of deeds, recording fees, transfer tax, title exam, and a closing fee. Mortgages, real estate
broker commissions, pro-rated real estates taxes, liens, and judgements are not covered under the
Program and must be paid by the Property Owner.

Clarification Questions and Answers

Why is Sasol offering this Program?

Sasol recognizes that our growth plans and related property acquisitions will result in the expansion of
our facility toward our neighbors to the west and northwest of our existing facility. Although a final
decision on whether to start construction on the world-scale ethane cracker and GTL facility will not be
made until 2014 and 2016, respectively, we are taking steps now to address the concerns of our
neighbors. Sasol continuously strives to be a good corporate citizen and in the spirit of being a good
neighbor to those residents that will be affected by our growth plans, we are offering our residential
neighbors to the west and northwest of our existing operations an opportunity to sell their Properties
to Sasol and move to a residential area of their choice.

Why isn't Sasol offering the Program to other plant neighbors?

Sasol recognizes that our growth plans and related property acquisitions will result in the expansion of
our facility toward our neighbors to the west and northwest of our existing facility. The Program will
give those Property Owners and residents affected by the company's growth plans the option to sell
their Property to Sasol, and relocate to an alternative neighborhood, if they so choose.

How do interested parties find out more about the Program?

CIC will open an Information Center in the community in early August and launch a website,
www.sasolvppp.com to provide Program specifics, timelines and contact information. CIC will also
host small group information sessions at the Information Center for prospective residents and sellers
around mid-August. Additional information on the opening date for the Information Center and
scheduling of the information sessions will be provided as soon as it is available.

Why has it taken so long for Sasol to look seriously at relocating its nearest community neighbors?

Since commencing the front-end engineering and design (FEED) phase for our U.S. growth projects,
Sasol has engaged with our neighbors to understand and address specific community needs and

-------
concerns. During this process, we received a number of requests from our near neighbors, a voluntary
property purchase program being one such request.

What if an Owner or Tenant decides not to participate in the Program or to not accept Sasol's Offer?

Your participation in the Program is entirely voluntary. You are under no obligation to participate in the
Program or to request an appraisal from Sasol. And even if you do register your interest to participate
in the Program and request an appraisal, you are not obliged to accept any Offer that Sasol may make
to you.

However, if you have decided to participate in the Program and you have accepted Sasol's Offer and
signed the Purchase and Sale Agreement you will have to vacate the Property at Closing.

Will Sasol offer to purchase commercial property and places of worship within the Program Area?

The Program does not cover commercial properties or places of worship. Commercial property
owners and religious leaders within the Program Area may approach Sasol to consider the purchase of
their properties by contacting a CIC representative at the Information Center. Sasol will consider such
requests from commercial property owners or religious leaders on a case-by-case basis.

Does Sasol have any plans to build operating facilities on the property it purchases?

Sasol does not have any plans to use the acquired property for operations or any other purpose, at this
time.

By when do I have to register my interest to participate in the Program?

Property Owners will have from August 12, 2013 to December 4, 2013 to register their interest in
participating in the Program by completing and submitting Appraisal Request and Authorization Forms
to a CIC representative at the Information Center. Tenants also have until December 4, 2013 to register
their interest in participating in the Program by completing and submitting a Renters Benefits Request
Form to a CIC representative.

As stated above, in order to qualify for the Early Sign-up Bonus that is payable upon closing, a
Property Owner (as defined) or Tenant (as defined) will need to register their interest in participating
in the Program and complete and submit an Appraisal Request and Authorization Form and Renters
Benefit Request Form, respectively before October 4, 2013.

How do I determine if my property falls within the Program area?

You can determine if your property falls within the Program Area by referring to the Program Area
description on pages 7 and 8, which is in the form of an aerial map containing a list of the streets along
which the relevant properties are located. Alternatively, you can contact a CIC representative at (337)
310-8200 or visit the Information Office at the former Mossville Elementary School located at 3301 Old
Spanish Trail Westlake, LA 70669.

Can I participate in the Program and the Program Benefits if my property does not fall within the
program area?

No, unfortunately the Program only applies to Property located within the Program Area as identified
on pages 7 and 8. If your property falls outside the Program Area you will therefore not be able to
participate in the Program Benefits.

How do i know if i qualify to participate in the Program?

-------
You qualify to participate in the Program if you, as of July 12, 2013:

• owned, and had title to either an Improved Property or an Unimproved Property in the Program
Area; or

• are a Tenant and your landlord participates in the Program.

If you are still unsure if you qualify for the Program, contact a CIC representative at (337) 310-8200 or
visit the Information Office at the former Mossville Elementary School located at 3301 Old Spanish Trail
Westlake, LA 70669.

I rent property together with one or more other co-tenants. Will each of us be individually entitled to
benefit under the Program, or will we share the benefits jointly?

Co-tenants are viewed as a single Tenant for the purposes of the Program. Therefore, co-tenants will
share the benefits jointly.

Do I have to accept Sasol's offer to purchase my property?

No, the Program is entirely voluntary. You are under no obligation to accept any Offer that Sasol may
make to you.

How can I start talking to Sasol about my participation in the Program?

CIC, a real estate and communications services company, will administer the Program on behalf of
Sasol. Should you desire, a CIC representative is available to meet with you privately to go over all the
features of the Program and assist you in understanding Program options available to you. We invite
you to meet with a CIC representative at the former Mossville Elementary School located at 3301 Old
Spanish Trail Westlake, LA 70669 or phone the Information Office at (337) 310-8200 to discuss how the
Program features may benefit you.

Will Sasol consider buying my property if I can't clear my title after taking advantage of the Curative
Title Allowance?

Sasol may consider, on a case-by-case basis, to accept less than perfect title.

How is the Average Appraised Price calculated?

If the difference between the two appraisals requested by CIC is:

• equal to, or less than 10% of the higher appraisal, then the average of the two appraisals will be
equal to the Average Appraised Price for purposes of determining the Offer for the Property; or

In example #1, the higher appraisal is $150,000. This means that the lower appraisal must be within
10% of $150,000 or $15,000. Since the two appraisals are only $2,000 apart, a third appraisal is not
required. The two appraisals are averaged to establish the Average Appraised Price of $149,000.

In example #2, the higher appraisal is $150,000. This means that the lower appraisal must be within
10% of $150,000 or $15,000. Since the appraisals are $16,000 apart, this means a third appraisal must
be done. Now, out of the three appraisals, the two higher appraisals are averaged to establish the
Average Appraised Price of $148,000.

-------

Appraisal #1

Appraisal #2

Appraisal #3

Average Appraised
Price

Example #1

$150,000

$148,000

not required

$149,000

Average of $150,000 and $148,000

Example #2

$150,000

$134,000

$146,000

$148,000

Average of $150,000 and $146,000

Only improvements on the Property as of July 12, 2013 will be considered in the appraisal.

I own and occupy a Property in the Program Area. How will the Purchase Price of my Property be
calculated? What other Program Benefits will I qualify for?

The examples below are indicative of an Offer and potential Program Benefits available to an Owner
Occupant:

Average Appraised Price is

equal to, or greater
than $100,000

less than $100,000

Average Appraised Price

150,000

90,000

Higher of Average Appraised Price or Minimum Appraised Price

150,000

100,000

Premium Payment at 60% of Average Appraised Price

90,000

54,000

Offer Price

240,000

154,000

Early Sign-Up Bonus

1,000

Miscellaneous Expense Allowance

8,000

Rent Disruption Allowance*

Professional Advice Allowance

500

Clear Site Bonus (maximum)

15,000

Potential Program Benefits available to Owner Occupant

264,500

178,500

• Rent Disruption Allowance of $1,000 will be available to an Owner Occupant if he/she also owns and

leases an Improved Property to a Tenant

An Owner Occupant will furthermore qualify for the payment of a:

• maximum Closing Cost Assistance Allowance of $5,000 toward normal and customary buyer closing
costs for a new home outside of the Program Area, which will be payable directly to the closing
agent; and

• maximum Curative Title Work Allowance of $5,000 to cover legal costs associated with curing title
problems payable directly to the law firm.

-------
I own a Property in the Program Area that I rent out to a third party. How will the Purchase Price of
my Property be calculated? What other Program Benefits will I qualify for?

The examples in the table below are indicative of an Offer and potential Program Benefits to a Rental
Property Owner:

Average Appraised Price is

equal to, or greater
than $75,000

less than $75,000

Average Appraised Price

100,000

70,000

Higher of Average Appraised Price or Minimum Appraised Price

100,000

75,000

Premium Payment at 50% of Average Appraised Price

50,000

35,000

Offer Price

150,000

110,000

Early Sign-Up Bonus

1,000

Rent Disruption Allowance

1,000

Professional Advice Allowance

500

Clear Site Bonus (maximum)

15,000

Potential Program Benefits available to Rental Property
Owner

167,500

127,500

A Rental Property Owner will furthermore qualify for the payment of a maximum Curative Title Work
Allowance of $5,000 to cover legal costs associated with curing title problems payable directly to the
law firm.

I own a vacant, Unimproved Property in the Program Area. How will the Purchase Price of my
Property be calculated? What other Program Benefits will I qualify for?

The examples in the table below are indicative of an Offer and potential Program Benefits for an
Unimproved Property Owner:

Average Appraised Price is

equal to, or greater
than $5,000

less than $5,000

Average Appraised Price

7,000

4,000

Higher of Average Appraised Price or Minimum Appraised Price

7,000

5,000

Premium Payment at 40% of Average Appraised Price

2,800

1,600

Offer Price

9,800

6,600

Early Sign-Up Bonus

1,000

Professional Advice Allowance

500

Clear Site Bonus (maximum)

15,000

-------
Potential Program Benefits available to Unimproved Property

26,300

23,100

Owner

An Unimproved Property Owner will furthermore qualify for the payment of a maximum Curative Title
Work

Allowance of $5,000 to cover legal costs associated with curing title problems payable directly to the
law firm.

9 Program definitions

Throughout this Handbook, unless otherwise stated or the context otherwise indicates, the words in
bold have the corresponding meaning stated below them, words in the singular include the plural and
vice versa, and any reference to one gender includes the other gender.

Appraisal Request

The completion and submission of the Appraisal Request and Authorization Form on page 32 of this
Handbook.

Average Appraised Price

If the difference between the two primary appraisals is:

• equal to, or less than 10% of the higher appraisal, then the Average Appraised Price will be equal to
the average of the two appraised prices; or

• greater than 10% of the higher appraisal, then a third appraisal will be ordered and the Average
Appraised Price will be equal to the average of the two highest of the three appraised prices.

Broom Clean

All possessions from any structures on the Property including, but not limited to, furnishings,
automobiles, trucks recreational vehicles, lawn maintenance equipment, tractors, trailers, recreational
equipment, tires, paints, household chemicals, automobile and motor maintenance products,
fertilizers, and weed and pest control products must be removed.

CIC

Community Interaction Consulting, Inc., a real estate consulting firm selected by Sasol to administer
and manage the Program on its behalf.

Clear Site Bonus

A payment of up to $15,000 that is potentially available to a Property Owner at Closing to pay the cost
of clearing the site of all structures and improvements as described in more detail on page 19.

Closing (Property Owner)

The date on which all the conditions of the sale process are fulfilled to the satisfaction of Sasol, funds
are disbursed to the seller, and title to the Property is transferred to the buyer.

Closing (Tenant)

The date on which all the conditions of a release agreement between Sasol and a Tenant have been
fulfilled to the satisfaction of Sasol.

Closing Cost Assistance Allowance

-------
A maximum allowance of $5,000 that is potentially payable to the closing agent of an Owner Occupant
or Tenant in respect of a new property purchased by such Owner Occupant or Tenant outside the
Program Area provided that the closing of the purchase of such new property falls within ninety days
from vacating the Property within the Program Area.

Curative Title Work Allowance

A maximum allowance of $5,000 that is potentially available to Property Owners to cover the legal
costs associated with curing title problems which will be payable directly to the relevant law firm.

Early Sign-Up Bonus

A bonus in the amount of $1,000 paid at Closing to a Property Owner or Tenant, where on or before
October 4, 2013, such:

• Property Owner registered his/ her interest in participating in the Program and submitted an
Appraisal Request and Authorization Form; or

• Tenant registered his/ her interest in participating in the Program and submitted a Renters Benefits
Request Form.

Effective Date

The effective date of the Purchase and Sale Agreement will be the last day that Sasol and/ or seller
(Property Owner) sign the Purchase and Sale Agreement.

Equity

The proceeds from a sale after deducting all cost to pay out and discharge any outstanding mortgages,
liens, pro-rated taxes and assessments, broker commissions, and curative title work.

Equity Advance

An advance equal to up to ninety (90) percent of the Equity that may be payable to an Owner Occupant
in order to allow him/ her to, make a deposit on another property outside the Program Area, pay
moving expenses, clear the site of all improvements in accordance with the description of Clear Site
Bonus and all other related costs.

Handbook

This Program handbook describing the details of the Program and Program Benefits.

Improved Property

Property that has a structure or structures on it that is suitable and fit for a person to live in and that is
free from defects that endanger health and safety of the occupants, regardless of whether such
Property is vacant or occupied.

Information Centre

The Program office established by CIC at the former Mossville Elementary School located at 3301 Old
Spanish Trail Westlake, LA 70669 that can be contacted at (337) 310-8200.

Minimum Appraised Price

A minimum amount established for the Program to determine the Purchase Price and Offer depending
on the type of ownership category and which is more fully described on page 17.

Miscellaneous Expense Allowance

-------
A maximum allowance of $8,000 potentially available to Owner Occupants or $4,000 potentially
available to Tenants to cover their relocation/ moving expenses.

Neat and Safe Condition

All utilities including water, sewer, electric, gas, telephone and cable service must be disconnected from
the Property at the street (or at the main) so that all improvements on the Property may be safely
removed in accordance with the utility providers' guidelines. Above ground swimming pools must be
drained and modified such that they will not hold water. The location of all the septic tanks and wells
must be clearly marked.

Normal Seller Closing Costs

Costs related to preparation of deeds, recording fees, transfer tax, title exam, and a closing fee are
considered Normal

Seller Closing Costs for the purpose of the Program and are potentially payable by Sasol for the benefit
of Property Owners. Real estate broker commissions, pro-rated real estate taxes, liens, mortgages, and
judgments are not covered under the Program and will not be paid by Sasol.

Offer

An offer made in writing by Sasol to a Property Owner to purchase his/ her residential Property in the
Program Area at the Purchase Price.

Offer Period

A ninety (90) day period to accept or decline Sasol's Offer to purchase the Property of a Property
Owner, as calculated from the date of the Offer.

Owner Occupied Property

Improved Property that is occupied by an Owner Occupant.

Owner Occupant

A Property Owner that lives in a home on his/ her Improved Property.

Premium Payment

A payment in excess of the Average Appraised Price, equal to:

• 60% of the Average Appraised Price for Owner Occupants;

• 50% of the Average Appraised Price for Rental Property Owners; and •

40% of the Average Appraised Price for Unimproved Property Owners.

Program

The voluntary property purchase program sponsored by Sasol.

Program Area

The area described on pages 7 and 8 of this Handbook.

Program Benefits

The program benefits available to the Property Owners and Tenants under the Program as more fully
described on pages 16 to 20.

Property

-------
All residential property within the Program Area including Improved and Unimproved Property
regardless of whether the Property is occupied or vacant.

Property Owner

A person or persons owning and holding good title to a Property as of July 12, 2013.

Purchase Price

The purchase price as determined with reference to the higher of the Average Appraised Price or the
Minimum Appraised Price plus the Premium Payment for the relevant type of owner category.

Purchase and Sale Agreement

An non-negotiable agreement containing the Purchase Price, Program Benefits applicable to a Property
Owner and other contractual terms and conditions that are typical of real estate transactions of this
nature, which is provided to the Property Owner by Sasol.

Rental Property

Improved Property that is either vacant or occupied by a third party.

Rental Property Owner

A Property Owner of Rental Property.

Rent Disruption Allowance

An allowance of $1,000 payable to a Rental Property Owner at Closing to cover lost rental income when
the Tenant vacates the Rental Property.

Sasol

Sasol North America Inc., a Delaware corporation, having its principal place of business at 900
Threadneedle, Suite 100, Houston, Texas, 77079-2990, U.S.A.

Tenant

A person or persons named as (a) tenant(s) in a lease that actively and consistently rent(s), and
resides(s) in, a Rental Property and for whom the said residence is his/her or their primary residence as
of July 12, 2013, and does not include any persons or family members occupying the Property who are
not named as a Tenant in the lease.

Unimproved Property

Property that is not an Improved Property.

Unimproved Property Owner

The Property Owner of an Unimproved Property.

10 Appraiser instructions

Situation

Sasol North America Inc. (Sasol) is sponsoring a Voluntary Property Purchase Program (Program)
focused on purchasing Properties to the west and northwest of its existing Westlake, LA facility. It is
Sasol's firm intention to fairly compensate Property Owners for their Properties. Community
Interaction Consulting, Inc. (CIC) will administer the Program on behalf of Sasol. You have been selected

-------
by the Property Owner to complete an appraisal of his/ her Property in accordance with the guidelines
below.

Guidelines

1. Appraisers will prepare their appraisal report according to the Uniform Standards of Professional
Practice (USPAP) and any regulatory agencies of the State of Louisiana using the Appraisal Institute
form A1.100 with emphasis on the comparison approach.

2. Appraisers will contact Property Owners within three (3) business days of the appraisal being
ordered by CIC to schedule a mutually agreeable time to inspect the Property.

3. No improvements to Properties after July 12, 2013 will be taken into consideration for purposes of
the appraisal.

4. Do not use comparable sales where Sasol was the buyer or seller.

5. Do not adjust comparable sales for FHA or VA financing.

6. Provide an "as is" appraised price based on typical marketing time.

7. Accept and consider any information given to you from the Property Owner regarding their
Property and, to the extent relevant, reflect this information in your report. This information may
come in the form of a prior appraisal or broker price opinion.

8. Any adjustment deemed to be subjective shall be made to benefit the subject Property by making
the highest defendable positive adjustment.

9. Include non-permitted livable square footage in your total square footage estimate.

10. Do not consider conditional aspects of the subject property like cracked foundation slabs and
deferred maintenance. Focus on the physical characteristics like finished living area, room count,
number of bathrooms and garages, floor plan, age and lot size. Accordingly, rate the condition of
the subject property and comparable sales as fair, average or good.

11. When calculating total living area, round up all exterior dimensions to the nearest half foot.

12. Include in your report:

• Color photos of the subject Property and the front of all comparable sales

• A sketch, not necessarily to scale, of dimensions used to determine living square footage

• A map indicating the location of the subject Property and the comparable sales • Interior
photographs

13. Email your report and invoice to the CIC representative that ordered the appraisal.

11 Sasol Appraisal Request and Authorization Form

I (We), the undersigned, as an Property Owner of

, LA

request and authorize Community Interaction Consulting, Inc. (CIC) to order an appraisal of my(our)
Property as described on page 7 of the Sasol North America Inc. Voluntary Property Purchase Program
Handbook. I (We) understand that requesting appraisals for my (our) Property does not commit me (us)
to sell my (our) Property to Sasol and does not commit Sasol to purchase my (our) Property. Only a fully
executed Purchase Agreement between me (us) and Sasol commits me (us) to sell my (our) Property to
Sasol in accordance with the terms of the Purchase Agreement.

I (We) agree to provide access to my (our) Property for the following appraisers,

-------
1.

j and if required

j The Property is currently occupied by

who

may be reached:

Title to the Property

is in the name of:

Date:

Property Owner

Date:

Property Owner

Fax to CIC, at (337) 310-8215 or email appraiser selections to the CIC representative

12 Sasol Renters Benefits Request Form

I (We), the undersigned, affirm that I (we) am (are) the Tenant(s) as of July 12, 2013 for the Rental

and request the Program Benefits be paid to me (us) when a all the conditions of a release agreement
between Sasol and me (us) have been fulfilled to the satisfaction of Sasol. I (we) understand that the
Program Benefits will be reported to the Internal Revenue Service as miscellaneous income on form IRS
1099 and I (we) further understand that I (we) must release Sasol from any and all past or present
property or occupancy claims against Sasol to be eligible to receive these Program Benefits.

In the event I (we) purchase a residence outside the Program Area l(we) request that the eligible
Closing Cost Allowance be paid to the closing agent for the residence l(we) purchased.

Attached is a lease or other verifiable data indicating that I (we) am (are) the Tenant as of July 12, 2013
in accordance with the requirements of the Program.

Printed Name Printed Name
SS# SS#

Property located at:

, LA

Date:

-------
www.sasolvppp.com

-------
Bobby Jindal

GOVERNOR

Peggy M. Hatch

SECRETARY

i§>tate of Hounstana

July 1,2013

DEPARTMENT OF ENVIRONMENTAL QUALITY
OFFICE OF ENVIRONMENTAL COMPLIANCE

Mr. Thomas Diggs
Associate Director for Air
US EPA Region 6-6PDQ
1445 Ross Avenue, Suite 1200
Dallas, Texas 75202-2733

RE: Request to remove PM2.5 BAM data from comparison to NAAQS standards
Dear Mr. Diggs:

This letter and the enclosed report are being submitted to request the Region to remove PM2.5
BAM data from comparison to NAAQS standards. The Louisiana Department of Environmental
Quality (LDEQ) has operated continuous beta-attenuation monitors (BAMs) since 2009 to
monitor PM2.5 concentration in the ambient air in several ambient air monitoring sites in the
State. To date, the BAMs have proven to be inconsistent and unreliable in accurately measuring
PM2.5 in the atmospheric conditions prevalent in the region. LDEQ continues to work with the
manufacturer Met One (LDEQ uses the Met One BAM-1020 Monitor) and the EPA to resolve
these discrepancies, as operation of these monitors would be of benefit in meeting the overall
mission of monitoring the ambient air if the monitors were to perform properly. Through the
documentation presented herein and per 40 CFR 58.11(e), LDEQ is requesting that the data
collected with the PM2.5 BAMs not be compared to the NAAQS standards until issues are
resolved.

If you have any questions, please do not hesitate to contact me at 225-219-3550.

Enclosure: Request to remove PM2 5 BAM data from comparison to NAAQS standards

c: Ms. Maria Martinez, EPA: 6PD-Q
Ms. Kara Allen, EPA: 6PD-Q

Sincerely,

Paul D. Miller, P.E.
Administrator

Post Office Box 4312 • Baton Rouae, Louisiana 70821-4312 • Phone 225-219-3550 • Fax 225-219-3708

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Request to remove PM? BAM data from comparison to NAAQS standards

I presently operates six monitoring sites where PM> 5 BAMs ;irc collocated with PM? ,
federal Reference Method fl'RM) monitors. These sites arc Capitol, Port Allen, Lafayette,
fvfotitoe, Ohalmette Vista and Alexandria ['here are two PMh 4 BAMs locateil at Alexandria. 40
CTR 5K, i l(o) slates that monitoring agencies are to use the performance criteria listed in I able
C-l to subpart C of part 5"* of 40 (T R to compare and assess the data collected by I he continuous
BAMs and the PR Ms, and that the key "statistical metric"" is the bias (40 t.TK 5K.1 ] (et (>)),
which must he in the + 10% range for 1 he data from the different instruments to be comparable.

I Db.'Q ulili/ed the assessment tool provided by the HPA on their website
(liUp://\v\\\v.c|)a.|»ov''a>rq»iilitv/«>d rep rrmvtem.himl) to analyze the data comparing PVT <
BAMs to eollocateil I'M;> ¦, IRMs collected from January 201 1 to January 2013, I he tool is
discussed in the accompanying document by Tim 11 an ley and Adam Ret'l of OAQPK

1 httpr/'w \v\vx,pi!,gti,V'1Uiaat|ssstnjulards;jyii/da]a.;I lauleyundRen04071 I ,|xf I").

! lie article discusses the goah lor acceptable measurement uncertainty as 10 pereenl
coefficient of variation ti'V) for total precision and plus or minus It) percent total bias." The
assessment too! provides a one page nummary ofthe.se statistics and other factors for each site
where Federal fiqnivaleiil Method iFI-M) BAM ant! f'RM are collocated I hese are attached in
the accompanying Appendix A to this memorandum.

The overall biases, defined in 4ft < TR ^8 Appendix A 1.2(b) as 'The systematic or persistent
distoiiion ot'a measurement process which causes error* in one direction", for each site for the
data analyzed from January 2011 to January 201 * are summarized in the bar graph below:

-------
OVERALL BIASES FOR SITES WITH COLLOCATED PM25 FRM / FEM

JAN 2011 to JAN 2013

80
70
60

rf 50
.2

" 40
re

| 30
O

20
10

Capitol Port Allen Lafayette Monroe Alexandria Alexandria Chalmette

1 2 Vista

Monitoring Site

Clearly all sites are above +10% in bias which demonstrates that the PM2.5 readings taken by the
continuous BAMs are commonly much higher than the readings measured by the FRMs. The
bias is more dramatic when considered by season. In Louisiana, fall is the season with the most
dramatic biases, ranging from 34.9% to 67.5%.

The summary sheets for each site with collocated FRM / FEM show a variety of statistics and
measurement comparisons that show that the FEMs are typically and, in some cases,
overwhelmingly, generating readings higher in concentration than the collocated FRMs. The
overall ratios of FEM readings to FRM readings at each site are summarized in the figure below:

-------
RATIO OF AVERAGE FEM PM2.5 CONCENTRATION TO AVERAGE FRM

CONCENTRATION

Concentration Ratios

ro
¦
c
o

1.8
1.6

•2 1.4

QJ
u
C

u
~o

-------
Table - Request for Exclusion of PM;,5 Continuous FEM Data

Site Name

City

Site
ID

C
o
nt >

P ! Method

O
c

Descripti

i PM,,
| s

i Cent

Beg!
n

Date

PM,

!;>

Cont
End
Date

Continuo
us/ FRM

Sampler
pairs per
season

Slope
(m)

Interce
pt

Meets
bias
require
ment

Correla

lion
(r)

Sites with PM:<, continuous f£M* that are collocated with FRMs:
Capitol

Port Allen

Lafayette

Monroe

Alexandria
1

Alexandria
2

Chalmette

Vista

1 Bar

IM.t

" ?tm

1 Cont 1

| vvmti'i -

1.03

1 it

U.Hl

; on

CB3-

! i) m>;>

! "i -r:i

i Rou

000

; Sffilli; -

17?

g«?

I ...

• Sijmtnrr
1 k.i

l.ill- u<>

1 _

iM.tl iV!

Till

121

Frt.«

Atii'rtiuittu.i

CcMiti
nu mi;

Wmti'i -

1 01

,» W!

Mil

tT /;

Alle

000

H)4

VlltVM'l

m
1 nil • l-t?

total -• t.0&

______

: U1

siii"

}(m*

Winlef

2 2S ~

Nr«

0 Su

I riy«*

OSS

mini.:

tic

000
7

S[)ntii; t>,'
Suimr>»>t

L-l

(.1I1

1 otrtl -J ih

Witii •»

5 j ,»»

_____
Hu

(1 t".';

11)0

n/i

AlU'iuuston

mttni'

(.1

1
i

000

1 4h
Hummer

-1u
r,->n - r>a
lu.ii- :u„;

Alt"

,'bt 1

1, oust

Winti-t

ii, y.'

<. >()

0.76

xan

0/9

AttenuvitiOf

miin^

tlri.i

000

¦>01 mi', • 4,'
Slimint'l

ut
Ml S-»

lOl.ll - I'l'i

IUn,»

,'fi 11

Caoti

WhU.m

' 4 li

0-81

xai)

()/')

AtienuilW"

Fiutm;

du,i

000

!
!

'hi

^KllUUti

5-t
r-jii- sa

f ha

'?y']

B.'t.l

?U 10

Conli

IVintfi

ii.fW

0,72

l me

OH/' !

miiri!1

2!>,

000

K (Siiiii; 11

i
1

Mimmt't - j

Ml- 1':

H!S !

-------
1 I )I Q presently uses the data from the continuous BAMs !o provide an indication of the current
AQI lot P\1 on its air quality data wcbsile. Hits data is also submitted to \«.>S on a non-
regulatory basis as part of the public record of air quality (.lata for the slate. There tore the data is
used to give an indication of current AQL but not official At,)!, which is determined by the
collocated I-Rfvls which run at the locations with continuous units. The agency intends to
continue doing this, and to work with ihe manufacturer and I PA (o improve the quality of the
data obtained from the continuous units in comparison to the collocated IRMs

Due to the data and analyst^ presented in this document. LDl'Q respectfully asks bPA to allow
elimination of continuums PM ..? } > until modifications in methodology and'"or
hardware result in instrumentation that can accurately and consistently measure PMi in Ihe
ambient air. I I>1 will continue to work with the manufacturer. Mel One. ami with Id'A to
resolve the issues that present accurate measurement of PM > < concentration in ambient air m our
rcuion.

-------
PM 2.sContinuous Monitor Comparability Assessment

Site 22-033-0009: Baton Rouge. LA

FRM: R & P Mode! 2025 PM2-5 Sequeneai w/WINS-GRAVIMETRIC (118). PM2.5 - Local Conditions (88101). POC=1
Cone Mat One BAM-1020 Mass Monitor w/VSCC-Seta Attenuation (170). PM25 - Loca) Conditions (88101). POC=3

Com.
-------
PM 2.5Continuous Monitor Comparability Assessment

Site 22-121-0001: Baton Rouge. LA

FRM: R&P Model 2025 PM2.5 Sequential wWINS-GRAVIMETRfC (11 e>. PM2.5 - Local Conditions (88101). POC=1
Coot Met One BAM-1020 Mass Monitor wVSCC~3eta Attenuaton (170). PM2.5 - Local Conditions (88101). POC=3

Cont. (y) vs. FRM C*) PMm (figlm'i

501

Additov* (y) W-. Multiplicity hi 3«as

-5

0.7 0.9 1.1 13

A=AIIData, 1=2011. 2=2012. 3=2013

W=Winter. R=Spring. S=Summer. F=Fall

MejnPM,, m >

Coot mm its FRM PM ¦ : (fig/m *)

20
10
0
-10
-20
-30

ConL Reads higher

Cont. Reads Lower

01/04/2011 09/10/2011 05/17/2012 01/22/2013

° Winter ° Spring 0 Summer ° Fall

H (y) vs. FRM CCV (*>

1.001
095
0.9O|
0.85
0.80J

0.0 0.2 0.4 0.6 0.8 1.0
A=AJIData, 1=2011. 2=2012. 3=2013

W=Winter. R=Spring. S=Summer. F=Fall

Dataset

FRM

Cont

Ratio

Dataset

Bias

ICMTUMI

»•«<

AIIData

606

10.6

12-9

1.22

AIIData

606

25.2

592

26.2

Winter

158

9.2

12.4

135

Winter

158

36.1

154

38.3

Spring

164

11.2

13.1

1.16

Spring

164

16.8

161

18.5

Summer

137

11.7

11.6

1.00

Summer

137

-26

132

-05

Fall

147

10.3

14.6

1.41

Fall

147

48.6

145

46.4

2011

315

11.3

14.6

130

2011

315

33.4

314

33.7

2012

281

10.0

11.2

1.13

2012

281

15.8

270

17.1

2013

8.4

134

2013

28.4

44.3

Data Source: EPA AQS Data Mart

Generated

on: May 22. 2013

-------
PM 2.5Continuous Monitor Comparability Assessment

Site 22-055-0007: Lafayette. LA

FRM: RSP McxteJ 202S PM2.5 Sequential wAVINS-GRAVIMETR(C (116). PM2.5 - Local Conditions (88101). POC=1
Cone Met One 8AM-1020 Mass Monitor WVSCC-Seta Attenuation (170). PM2S - LocaJ Conditions (88101). POC=3

Coni iy> vs FRM vs FRMCCV0O

ConL Reads Lower

0.9 1.1 1

A=AIIData, 1=2011. 2=2012. 3=2013

W=Winter. R=Spring. S=Summer. F=Fall

Ml-.3u PM i+Lq/m

0.8OL,

0.0 0.2 0.4 0.6 0.8 1.0
A=AIIData, 1=2011.2=2012.3=2013

W=Winter. R=Spring. S=Summer. F=Fall

Appendix A SUUitlf •.

Data Source: EPA AQS Data Mart

Dataset

FRM

Cont

Ratio

Dataset

Bias

KMiriw

<>**

AIIData

238

8.8

11.4

1.29

AIIData

238

34.1

230

34.3

Winter

6.9

9.6

138

Winter

40 5

42.6

Spring

9.6

12.1

1.27

Spring

29.2

28.5

Summer

9.1

10.9

1.19

Summer

22.7

23.4

FaU

12.9

1.35

Fall

45.2

43.9

2011

122

8.9

11.9

134

2011

122

36.5

118

36.1

2012

116

8.7

108

1.24

2012

116

31.7

112

32.5

2013

Generated on: May 22. 2013

-------
PM 2.sContinuous Monitor Comparability Assessment

Site 22-073-0004: Monroe, LA

FRM; R & P Model 2025 PM2 S Sequential w.WINS-GRAVIMETRIC (118). PM2.S - Local Conditions (08101). POC=1
Cone Met One BAM-1020 Mass Monitor w/VSCC-Seta Attenuation (170). PM2S - Local Conditions (88101). POC=3

Com

Coot minus FRM PM »

•

» _»w" •

•

• « v, ' */

- - •

* •>^r * •

rX. W -

= 0.72X + 5.79

V = 0.;
R = 0.

24 30
— 1:1 line

- •- i-

ConL Reads Higher

• »

v. - Wvn*' „ • ••

» r-.V. A V «

•.v

-*v*. "

15
9j
3
-3
-9
-15

01/03/2011 09/11/2011 05/19/2012 01/25/2013

0 Winter 0 Spring 0 Summer 0 Fall

Cont Reads Lower

Additive (y) vri Wultiplic.irc <*) Bias

R (y)v* FRMCCVOt)

8
4
0
-4

-8

A 2 F
1R S

0.5 0.7 0.9 1.1 1.3 1.5
A=AIIData, 1=2011. 2=2012. 3=2013

W=Winter. R=Spring. S=Summer, F=Fall

Mean PM 23 9/m t

1.001
0.95
0.9a
0.85

0.80I-,

0.0 0.2 0.4 0.6 0.8 1.0
AnAIIData, 1=2011. 2=2012.3=2013

W=W5nter. R=Spring.S=Summer. F=Fall

0.4

Dataset

FRM

Cont

Ratio

Dataset

Bias

iCrwnwr,

1*4

*»~

AllData

213

9.1

12-4

136

AllData

213

73.5

205

43.9

Winter

10.6

1.46

Winter

111

50.0

Spring

10.6

123

1.17

Spring

66.1

23.5

Summer

11.1

13.8

124

Summer

26.9

Fall

13.2

1.61

Fall

77.1

67.5

2011

103

9.7

11.5

1.19

2011

103

32-7

100

27.9

2012

106

8.7

13.1

151

2012

106

87.6

102

56.6

2013

4.6

13.1

2.87

2013

752

143

Data Source: EPA AQS Data Mart

•

Generated on:

May 22. 2013

-------
PM 2.5Continuous Monitor Comparability Assessment

Site 22-079-0002: Alexandria, LA

FRM: R & P Model 202S PM2 5 Sequential wAVINS-GRAVIMETRIC (118). PM2.5 - Local Conditions (88101). POC=1
Cone Met One BAM-1020 Mass Monitor w/VSCC-Beta Attenuation (170). PM25 - Local Conditions (83101). POC=3

Cont vs l-RMfcclf'M,,

Cont. minus FRM I'M u

15
9
3
-3
-9
-15

. Cont Reads Hgher

• * & •
* » "v » ' k *•

¦> ~ .
: *Ss .v-

Cont Reads Lower

05/06/2011 12/01/2011 06/27/2012 01/22/2013

0 Winter 0 Spring 0 Summer ° Fall

Additivp vs FRMCCVtx)

8
4
0
-A

-8-r
0.5

2 A f s
R

0.7 0.9 1.1 1.3 1.5
A=AIIData, 1=2011. 2=2012.3=2013

W=Winter. R=Spring. S=Summer. F=Fall

Mean PM 0. (jj, ij/m }

Data Source: EPA AQS Data Mart

1.001
0.95
0.9O
0.85
0.8oi-r

0.0 0.2 0.4 0.6 0.8 1.0
A=AIIData, 1=2011.2=2012.3=2013

W=Winter. R=Spring.S=Summer. F=Fall

Appendix A Statistics

Dataset

FRM

Cont

Ratio

Dataset

Bias

ICMTWU

trfefc.

— Ju®»rrM|

AIlData

199

8.6

13.6

159

AIIData

199

89.1

190

70.8

Winter

5.8

11.9

2.04

Winter

124

111

Spring

10.1

12.5

1.24

Spring

94.0

29.6

Summer

9.4

15.7

1.67

Summer

77.4

78.0

Fall

13.4

1.61

FaD

75.7

66.7

2011

8.7

15.6

1.80

2011

127

90.8

2012

115

12.2

1.44

2012

115

62.6

109

56.7

2013

6.1

6.7

1.10

2013

9.8

Generated on: May 22.2013

-------
PM 2.5Continuous Monitor Comparability Assessment

Site 22-079-0002: Alexandria, LA

FRM: R & P Model 2025 PM2J5 Sequential wAVINS-GRAVIMETRIC (118). PM2.5 - Local Condtbons (88101). PCC=1
Cooc Met One BAM-1020 Mass Monitor w/VSCC-Seta Attenuation (170). PM25 - Local Conditions (88101). POC=4

Co..r (y>vs.FRM(x)PM

Cant minus FHM PM • ; (/igftn'i

15
9
3
-3
-9
-15

ConL Reads higher

- .. " « •

-W _2 L "

Cont. Reads Lower

Addiove (y) v; Muitipiicate U>Bias

05/03/2011 11/29/2011 06/26/2012 01/22/2013

0 Winter ° Spring 0 Summer ° Fall

R{y)vs FRMCCVtx)

8
4

1.00-
0.95

r, VS Fc

0.90-

^ i

-4

0.85

-ft

n ftrv

1
A

0.5 0.7 0.9 1.1 13 1.5
A=AIIData, 1=2011. 2=2012. 3=2013

W=Winter. R=Spring. S=Summer. F=Fall

0.0 0.2 0.4 0.6 0.8 1.0
A=AIIData, 1=2011. 2=2012.3=2013

W=Winter. R=Spring. S=Summer. F=Fall

MejnPMj, (,)£ rj/n:' 1

Appendix A Statistics

Dataset

FRM

Cont

Ratio

Dataset

Bias

(CMTRMI

!¦*«<

la*n«lDia>

All Data

194

8.3

11.9

1.42

AllData

194

61.0

183

51.8

Winter

5.8

9.7

1.67

Winter

82 8

73.2

Spring

10.6

1.15

Spring

59 6

30.1

Summer

9.4

13.4

1.42

Summer

461

48.3

Fall

8.2

12-6

153

Fall

63.3

55.8

2011

8.6

12.1

1.41

2011

66.3

49.6

2012

110

8.2

11.7

1.43

2012

110

57.1

104

53.5

2013

6.1

9.6

157

2013

57.4

Data Source: EPA AQS Data Mart

Generated

on: May 22. 2013

-------
PM ^Continuous Monitor Comparability Assessment

Site 22-087-0007: Chalmette, LA

FRM: R&P Model 202S PM2.S Sequential w/WINS-GRAVIMtTRIC (118). PM2.5 - Local Conditions (88101). POC=1
Cone Met One BAM-1020 Mass Monitor w/VSCC-Beta Attenuation (170). PM2.5- Local Conditions (88101). POC=3

Com (y) vs. FRU

= 0.89x + 4.27
t = 0.72

24 30
— 1:1 line

20
13
6
-1
-8
-15

Cont Reads Higher

<. ,v

• % •

¦ v. '

Cont Reads Lower

Additive vs FRMCCVtx)

1.00-

1 w

0.95

0.9O

-4

0.85

. w2

-R

n nn

0.5 0.7 0.9 1.1 13 1.5

0.0 0.2 0.4 0.6 0.8 1.0

A=AIIData, 1=2011. 2=2012. 3=2013

W=Winter. R=Spring. S=Summer. F=Fall

A=All Data, 1=2011.2=2012.3=2013

W=Wrnter. R=Spring. S=Summer. F=Fall

McanPMu (lifjfm'i

Appendix A Statistics

Dataset

FRM

Cont

Ratio

Dataset

Bias

ICaOIMl

I* 4

taVMlBU)

<«*»•

•3
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION 6
1446 ROSS AVENUE, SUITE 1200
DALLAS, TX 75202-2733

MAR 2 7 2014

Mr. Paul D. Miller, P.E.

Administrator, Office of Environmental Compliance
Assessment Division

Louisiana Department of Environmental Quality

Post Office Box 4301

Baton Rouge, LA 70821-4301

Dear Mr. Miller:

The U.S. Environmental Protection Agency (EPA) Region 6 has concluded its review of the
Louisiana Department of Environmental Quality's (LDEQ) 2013 PM2.s Data Exclusion
Request for the continuous Federal Equivalent Method (FEM) beta-attenuation monitors
(BAMs) to ensure it meets the requirements of Title 40 of the Code of Federal Regulations
(CFR) Part 58.11(e) and determine PM2.5 National Ambient Air Quality Standards (NAAQS)
comparability.

We are pleased to inform you that we have determined that the 2013 PM2.5 Data Exclusion
Request for all of the FEM BAMs submitted followed the required procedures of 40 CFR
Part 58.11(e) to evaluate the data. We have evaluated each site individually to determine
whether the data will be excluded from comparison to the PM2.5 NAAQS and reviewed
applicable requirements for the continuous PM2.5 air monitoring network. Details of our
evaluation for each site are provided in the enclosure.

We appreciate LDEQ's efforts to prepare and submit the 2013 PM2.5 Data Exclusion Request
for the BAMs. If you have any questions, please contact me at (214) 665-3102, or your staff
may contact Ms. Maria Martinez, Air Quality Analysis Section Chief, of my staff at
(214) 665-2230.

Sincerely yours,

Thomas H. Diggs
Associate Director for Air

Enclosure

Recycled/Recyclable » Printed with Vegetable Oil Based Inte on 100% Recycled Paper (40% Postconsumer)

-------
Louisiana Department of Environmental Quality (LDEQ)

PM2.5 Data Exclusion Request Technical Comments

The Environmental Protection Agency (EPA) has reviewed your 2013 PM2.5 Data Exclusion Request
and our comments are provided below. In addition to the exclusion request, EPA's review includes
additional information discussed with LDEQ. In order to reconcile all proposed network changes and as
required by 40 CFR §58.14, system modifications need to be submitted to EPA in writing for approval.
LDEQ will need to formally submit the requested network changes; this information can be addressed in
the 2014 network plan.

Capitol site (Air Quality System, AOS #22-033-0009"):

58.11(e) Exclusion Request

At the Capitol site, LDEQ operates a PM2.5 Federal Equivalent Method (FEM) beta-attenuation monitor
(BAM) designated as a state or local air monitoring stations (SLAMS) monitor and Parameter Code
88101. The Capitol site is also a National Core (NCore) multipollutant site which requires a PM2.5
continuous monitor to meet NCore requirements. See 40 CFR Part 58, App, D, 3(b).

We disapprove the request to exclude the FEM BAM at the Capitol site. Based on the analysis provided
by LDEQ, the data quality for the Capitol PM2.5 BAM falls within the limits of 40 CFR Part 53 Subpart
C, Table C-4 to be compared to the PM2.5 National Ambient Air Quality Standards (NAAQS). The 3
years of data for the continuous FEM BAM monitor correlates with the manual Federal Reference
Method (FRM) monitor. We understand that there is seasonal variation, but the overall data falls within
the parameters for comparison to the NAAQS. Please note if a valid 24-hour measurement is not
produced from the primary monitor for a particular day (scheduled or otherwise), but a valid sample is
generated by an FRM, FEM or approved regional method monitor, then that value shall be considered
part of the site data record.

Network Impacts

For the Baton Rouge metropolitan statistical area (MSA), LDEQ is required to operate one continuous
PM2.5 monitor to equal at least one-half of the minimum required two sites as listed in 40 CFR Part 58,
App. D, 4.7.1, Table D-5. See 40 CFR Part 58, App. D, 4.7.2. In addition, at least one of the continuous
monitors must be operated with one of the required monitors. The Capitol site meets this requirement
with the continuous PM2.5 BAM operated in conjunction with a required manual FRM monitor.

Reporting for the Air Quality Index (AQI), an indication of the current PM2.5 concentration, is required
for all individual MSAs with a population exceeding 350,000. According to the 2012 United States
Census population estimates, the Baton Rouge MSA is at 815.298 and is required to report continuous
PM2.5 for AQI.

Direction

Therefore, operation of the continuous PM2.5 BAM at the Capitol site is required to meet the minimum
PM2.5 network requirements. Please make sure the monitor is designated as SLAMS, Parameter Code
88101 and NAAQS comparable in the 2014 network plan.

-------
Port Alien site (AOS #22-121-0001):

58.11(e) Exclusion Request

At the Port Allen site, LDEQ operates a PM2.5 FEM BAM designated as a SLAMS monitor and
Parameter Code 88101. We approve the request to exclude the FEM BAM at the Port Allen site. Based
on the analysis provided by LDEQ, the Port Allen PM2.5 BAM met the performance criteria listed in 40
CFR Part 53 Subpart C, Table C-4 and bias to be excluded from comparison to the PM2.5 NAAQS.

Network Impacts

For the Baton Rouge MSA, the Capitol site meets the minimum PM2.5 network requirements for a PM2.5
continuous monitor. The continued operation of the PM2.5 BAM at the Port Allen site is not required to
meet minimum network requirements. Based on LDEQ's analysis of the monitoring data, it appears that
the discontinuance of the PM25 BAM at the Port Allen site will not compromise the data collection
needed for implementation of the PM2.5 NAAQS and the 40 CFR Part 58, App. D ambient air
monitoring requirements. Please provide LDEQ's rationale for either continued operation or
decommissioning of the PM2.5 BAM at the Port Allen site. Any request for a system modification under
40 CFR §58.14(c) should be submitted to EPA Region 6 for concurrence.

Direction

We understand that LDEQ uses the data from the continuous BAMs for reporting AQI, an indication of
the current PM2.5 concentration. Please make sure the monitor is designated as SLAMS and Parameter
Code 88502 in AQS. Please note that LDEQ is required to move and load all of the PM2.s BAM data at
the Port Allen site in EPA's national air monitoring database (AQS) from under Parameter Code 88101
to Parameter Code 88502 to ensure the data is excluded from comparison to the NAAQS. Please ensure
that the monitor is correctly identified in the 2014 network plan. '

' Chaimette Vista site (AOS #22-087-0007): '

58.11(e) Exclusion Request

At the Chaimette Vista site, LDEQ operates a PM2.5 FEM BAM designated as a SLAMS monitor and
Parameter Code 88101. We approve the request to exclude the FEM BAM at the Chaimette Vista site.
Based on the analysis provided by LDEQ, the Chaimette Vista PM2.5 BAM met the performance criteria
listed in 40 CFR Part 53 Subpart C, Table C-4 and bias to be excluded from comparison to the PM2.5
NAAQS.

Network Impacts

For the New Orleans MSA, LDEQ is required to operate two continuous PM2.5 monitors to equal at least
one-half of the minimum required three sites as listed in 40 CFR Part 58, App. D, 4.7.1, Table D-5. See
40 CFR Part 58, App. D, 4.7.2. In addition, at least one of the continuous monitors must be operated
with one of the required monitors. LDEQ currently operates a continuous PM2.S tapered element
oscillating microbalance (TEOM) monitor in conjunction with the FRM monitor at the Kenner site
(AQS #22-051-1001) to meet this requirement.

Reporting for AQI is required for all individual MSAs with a population exceeding 350,000, According
to the 2012 United States Census population estimates, the New Orleans MSA is at 1,227,096 and is
required to report continuous PM2.5 for AQI.

-------
Direction

We understand that LDEQ uses the data from the continuous BAMs for reporting AQI, an indication of
the current PM2.s concentration and that the PM2.5 continuous monitor at the Chalmette Vista site
provides critical information for the public. EPA supports the operation of a PM2.5 continuous monitor at
the Chalmette Vista site. Please make sure the monitor is designated as SLAMS and Parameter Code
88502 in AQS and not NAAQS comparable. Please note that LDEQ is required to move and load all of
the PM2.5 BAM data at the Chalmette, Vista site in EPA's AQS database from under Parameter Code
88101 to Parameter Code 88502 to ensure the data is excluded from comparison to the NAAQS. Please
ensure that the monitor is correctly identified in the 2014 network plan,

¦Lafayette USGS site (AOS #22-055-0007): ¦

58.11(e) Exclusion Request

At the Lafayette USGS site, LDEQ operates a PM2.5 FEM BAM designated as a SLAMS monitor and
Parameter Code 88101. We approve the request to exclude the FEM BAM at the Lafayette USGS site.
Based on the analysis provided by LDEQ, the Lafayette USGS PM2.5 BAM met the performance criteria
listed in 40 CFR Part 53 Subpart C, Table C-4 and bias to be excluded from comparison to the PM2.s
NAAQS:

Network Impacts

Reporting for AQI is required for all individual MSAs with a population exceeding 350,000. According
to the 2012 United States Census population estimates, the Lafayette MSA is at 474,415 and is required
to report for AQI. The Lafayette USGS BAM is the only monitor in the Lafayette MSA currently ^
reporting for AQI and is required.

Direction

Please make sure the monitor is designated as SLAMS and Parameter Code 88502 in AQS and not
NAAQS comparable. Please note that LDEQ is required to move and load all of the PM2.5 BAM data at
the Lafayette site in EPA's AQS database from under Parameter Code 88101 to Parameter Code 88502
to ensure the data is excluded from comparison to the NAAQS. Please ensure that the monitor is
correctly identified in the 2014 network plan.

Monroe site (AOS #22-073-0004): -

58.11(e) Exclusion Request

At the Monroe site, LDEQ operates a PM2.5 FEM BAM designated as a SLAMS monitor and Parameter
Code 88101. We approve the request to exclude the FEM BAM at the Monroe site. Based on the
analysis provided by LDEQ, the Monroe PM2.5 BAM met the performance criteria listed in 40 CFR Part
53 Subpart C, Table C-4 and bias to be excluded from comparison to the PM2.5 NAAQS.

Network Impacts

We understand that LDEQ uses the data from the continuous BAMs for reporting AQI, an indication of
the current PM2.5 concentration. Reporting for AQI is required for all individual MSAs with a population
exceeding 350,000. According to the 2012 United States Census population estimates, the Monroe MSA
is at 177,782 and is not required to report for AQI.

The Monroe site is not an NCore site and has zero required monitors; therefore, there is no continuous
PM2.5 requirement. The continued operation of the PM2,5 BAM at the Monroe site is not required to meet
minimum network requirements. Based,on LDEQ's analysis of the monitoring data, it appears that the

-------
discontinuance of the PM2.5 BAM at the Monroe site will not compromise the data collection needed for
implementation of the PM2.5 NAAQS and the 40 CFR Part 58, App. D ambient air monitoring
requirements. Please provide LDEQ's rationale for either continued operation or decommissioning of
the PM2.5 BAM at the Monroe site. Any request for a system modification under 40 CFR §58.14(c)
should be submitted to EPA Region 6 for concurrence. .

Direction

Please make sure the monitor is designated as SLAMS and Parameter Code 88502 in AQS. Please note
that LDEQ is required to move and load all of the PM2.5 BAM data at the Monroe site in EPA's AQS
database from under Parameter Code 88101 to Parameter Code 88502 to ensure the data is excluded
from comparison to the NAAQS. Please ensure that the monitor is correctly identified in the 2014
network plan.

Alexandria site (AOS #22-079-0002):

58.11(e) Exclusion Request

At the Alexandria site, LDEQ operates two PM2.5 FEM BAMs; both are designated as SLAMS monitors
. and Parameter Code 88101. We approve the request to exclude the FEM BAMs at the Alexandria site.
Based on the analysis provided by LDEQ, the Alexandria PM2.s BAMs met the performance criteria
listed in 40 CFR Part 53 Subpart C, Table C-4 and bias to be excluded from comparison to the PM2.5
NAAQS.

Network Impacts

We understand that LDEQ uses the data from the continuous BAMs for reporting AQI, an indication of
the current PM2.5 concentration. Reporting for AQI is required for all individual MSAs with a population
exceeding 350,000. According to the 201.2 United States Census population estimates, the Alexandria
MSA is at 154,441 and is not required to report for AQI.

The Alexandria site is not an NCore site and has zero required monitors; therefore, there is no
continuous PM2.5 requirement. The continued operation of two PM2.S BAMs at the Alexandria site is not
required to meet minimum network requirements. Based on LDEQ's analysis of the monitoring data, it
appears that the discontinuance of the two PM2.s BAMs at the Alexandria site will not compromise the
data collection needed for implementation of the PM2.5 NAAQS and the 40 CFR Part 58, App. D
ambient air monitoring requirements. Please provide LDEQ's rationale for either continued operation or
decommissioning of the two PM2.5 BAMs at the Alexandria site. Any request for a system modification
under 40 CFR §58.14(c) should be submitted to EPA Region 6 for concurrence. '

Direction

Please make sure the monitors are designated as SLAMS and Parameter Code 88502 in AQS. Please
note that LDEQ is required to move and load all of the PM2.5 BAM data at the Alexandria site in EPA's
AQS database from under Parameter Code 88101 to Parameter Code 88502 to ensure the data is
excluded from comparison to the NAAQS. Please ensure that the monitors are correctly identified in the
2014 network plan.

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NATIONAL ENVIRONMENTAL JUSTICE ADVISORY COUNCIL
PROPOSED Resolution on the National Environmental Policy Act August 20-21,

2020

WHEREAS the National Environmental Policy Act (NEPA) is a bedrock environmental law critical to
ensuring that agencies identify and mitigate the significant environmental impacts federal projects will
have on communities of color, indigenous, and low-income communities;

WHEREAS the EPA, along the White House Council on Environmental Quality and other federal
agencies on the Interagency Working Group on Environmental Justice, has recognized the importance of
NEPA in addressing environmental justice issues by creating a working group on NEPA and issuing the
2016 report. Promising Practices for EJMethodologies in NEPA RevieMs.

WHEREAS on August 14, 2019, the NEJAC recommended changes necessary to ensure that the
National Environmental Policy Act better identify and address environmental justice issues;

WHEREAS the White House Council on Environmental Quality proposed sweeping changes to its NEPA
regulations then provided the public a paltry 60 days and two public meetings to provide public input on
these major regulatory changes;

WHEREAS, on July 16, 2020, the White House Council on Environmental Quality issued final
regulations dismantling many of NEPA's most important protections without performing an analysis of
the environmental justice impacts of the regulation changes, as Executive Order 12898 requires;

WHEREAS these changes will have devastating impacts on countless communities across the country
already suffering from environmental injustice by removing cumulative impact analysis requirements,
limiting the projects to which NEPA review would apply, allowing companies to prepare their own
environmental analyses, and making it more difficult for the public to hold agencies accountable for a full
and fair analysis of projects and their impacts;

THEREFORE SO UK IT RESOLVED that the National Environmental Justice Advisory Council:

• Hereby condemns the NEPA regulations finalized by the White House Council on Environmental
Quality on July 16, 2020 due to the devastating impact these changes will have on communities
of color, Indigenous, and low-income communities;

• Requests the Administrator of the U.S. Environmental Protection Agency request that the White
House Council on Environmental Quality withdraw the new NEPA regulations until it conducts a
complete analysis of the environmental justice impacts of the regulation changes, in compliance
with Executive Order 12898, and in consultation with the NEJAC;

• Requests that the Environmental Protection Agency ensure its rules implementing NEPA

protect communities from environmental injustice and incorporate suggestions from the
NEJAC's August 14, 2019 recommendation letter; and

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• Requests that the Administrator of the U.S. Environmental Protection Agency direct the

Interagency Working Group on Environmental Justice to discuss the NEPA regulations and work
together to implement their NEPA regulations in a way that better protects communities facing
environmental injustices instead of further burdening them.

Alaska Community Action on Toxics * American Alpine Club * Center for Food Safety *
Center for Environmental Health * Environmental Defense Fund *

Environmental Justice Health Alliance for Chemical Policy Reform *

Environmental Protection Information Center * Food & Water Watch *

Friends of the Earth * National Parks Conservation Association * Ocean Conservancy *
Rio Grande International Study Center * Southern Utah Wilderness Alliance *
The Wilderness Society * WE ACT for Environmental Justice * Western Watersheds Project *

Winter Wildlands Alliance

August 16, 2020

Submitted electronically to Martin.Karen@epa.gov
Chairman Richard Moore

National Environmental Justice Advisory Council

Dear Chairman Moore and Members of the National Environmental Justice Advisory Council:

The current Administration has relentlessly rolled back environmental regulations that protect our most
vulnerable communities. On July 15, 2020, the Administration finalized an attack on our bedrock
environmental law, the National Environmental Policy Act (NEPA). These changes, which fast-track
development projects at the expense of public comments and cumulative impacts analyses, will be
devastating for communities of color and low-income communities across the country. For this reason,
the undersigned organizations ask the National Environmental Justice Advisory Council (NEJAC)
to issue a statement condemning these changes to NEPA as harmful to environmental justice
communities.

1. The NEJAC has already recognized NEPA's importance to environmental justice
communities.

As the NEJAC reminded Administrator Wheeler in its August 14, 2019 letter, "most NEJAC members have
a wealth of ground-level experiences in the use and misuse of NEPA." After months of conferring,
drafting, and ultimately deliberating, the NEJAC recommended to the Administrator "that all NEPA
reviews include more and higher quality data related to environmental justice." The NEJAC's NEPA
recommendation letter listed several improvements that were needed so that NEPA could better
analyze harms and risks to environmental justice communities, including requiring the use of Health
Impact Assessments and addressing community concerns in meaningful ways. The NEJAC

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recommended that NEPA analyses should "[ijdentify and measure the cumulative and synergistic
impacts on a community over time, from multiple sources existing inside and outside the project area."
Further, the NEJAC requested that Administrator Wheeler " [sjtress to the Council on Environmental
Quality (CEQ) the importance of increasing the health and well-being of communities by consistently
integrating environmental justice and health analyses and considerations in NEPA reviews." Ultimately,
the NEJAC emphasized that "[w]e must raise both the quality and quantity of environmental justice
analyses so the impacts affecting environmental justice communities are front and center."

2. The changes to the NEPA regulations will be devastating to our most vulnerable
communities.

Since Executive Order 12898 was adopted, NEPA has been the primary way federal agencies incorporate
environmental justice considerations into their decisionmaking process. While federal agency efforts to
identify and address the disproportionate environmental and health effects of their activities on
communities often fall short, reports such as Promising Practices for EJ Methodologies in NEPA
Reviews and its supporting materials provided agencies with guidance on how to better address
environmental justice concerns. With over 80 federal agencies required to comply with NEPA, it is one
of the most effective tools to identify and address environmental justice concerns across the federal
government.

The current Administration has eviscerated NEPA, allowing major projects to entirely avoid NEPA review,
ignore disproportionate impacts, silence community voices, and shut the courthouse door to all but
those with considerable resources.

The negative impacts to communities of color and low-income communities are vast because the
Administration made the following changes to NEPA.

The Administration reduced the number and kinds of projects subject to NEPA review: The
Administration has effectively eliminated NEPA requirement for public input and environmental
review entirely, ensuring community voices are completely left out of decisions impacting the
health, environment, and safety of their communities. Key provisions that would limit the
applicability of environmental review under NEPA include, but are not limited to, allowing
agencies to bypass NEPA with processes that serve as the "functional equivalent" of NEPA,
limiting what counts as a "major federal action," excluding more categories of projects from
review, and allowing projects with minimal federal involvement or funding to avoid NEPA
review. Taken together, these changes will allow projects with potentially enormous impacts to
move forward with no review and zero public input under NEPA.

The Administration eliminated the requirement to consider cumulative impacts and
indirect effects: The NEJAC has long recognized that, to achieve environmental justice, we must
examine and address the cumulative impacts of pollution sources and environmental stressors

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on communities of color and low-income communities. Many NEJAC members have joined
environmental justice advocates around the country in tirelessly fighting for federal and state
agencies to consider cumulative impact in permitting and when approving or financing projects.
As WE ACT has recognized, no issue is more central to residents of already environmentally
overburdened communities than whether cumulative impacts will be considered in
environmental decision-making, and no proposal could raise more significant concerns about
environmental justice than weakening the requirement that cumulative impacts be considered.
Removing NEPA's requirement to analyze the cumulative impacts of a project before it is
approved is taking a huge leap backwards in environmental protection, one that will have
devastating effects on communities of color and low impact communities.

The Administration is allowing private industry to write their own environmental reviews:
In the latest iteration of this Administration's policy of letting the fox guard the henhouse,
companies and private project proponents can now actually write their own environmental
reviews. The rules also allowing third party contractors to write reviews, even if they have a
disclosed conflict of interest in the outcome of the project. As our communities know all too
well, private companies make decisions based on private profit, not on public health, and have
no incentive to consider any alternatives to a proposal or take a hard look at its environmental
consequences. Companies seeking to build a particular project know exactly what they want
the project to look like. Allowing them to define the scope of the environmental review, define
and evaluate the project alternatives, and identify significant impacts will lead to markedly
worse environmental reviews that no longer at least pretend to be unbiased. Our communities
will undoubtedly suffer.

The Administration has made it more difficult for us to hold the federal government
accountable: Unsurprisingly, the Administration has instituted a suite of changes aimed at
stopping us from suing in cases where the government has failed to meet its responsibilities to
adequately review impacts or provide the public with meaningful opportunities to engage. For
example, the regulations now include more burdensome commenting requirements that must
be met before interested people or groups have a right to sue. The new regulations now include
a recommendation for agencies to impose a bond requirement—basically to deposit thousands
of dollars with the court—before the court will hear our claims. This stunt is a way for the
government to avoid accountability to grassroots community groups while leaving the
courthouse door wide open for deep-pocketed corporations.

3. The Administration Failed to Consider the Environmental Justice Impacts of These Changes
and then Designed the Public Comment Process to Reduce Public Input.

In addition to making sweeping rule changes to the bedrock environmental law, the Administration
failed to analyze the impact of these changes on our most vulnerable communities and then designed
the public comment process to minimize public input on the actual changes proposed. On June 20,
2018, the Administration issued an "Advance Notice of Proposed Rulemaking Requesting Public

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Comment on CEQ's NEPA regulations." The notice vaguely requested public comment on how NEPA
regulations could be changed to "ensure a more efficient, timely, and effective NEPA process." In
response, the NEJAC gathered recommendations on NEPA, urging the Administration to make
improvements to the regulations to better address environmental harms and environmental justice
issues. The Administration received over 12,500 comments on the advance notice.

Despite receiving significant public interest in its vague advanced notice and NEJAC's recommendation
that NEPA regulations should be strengthened to better address environmental justice issues, the
Administration failed to address environmental justice concerns and then failed to assess how the
changes would impact communities of color and low income communities.

The Administration failed to analyze the impacts of its NEPA changes on environmental
justice communities, shirking its duties under Executive Order 12898: In the final rule, the
Administration made a sweeping statement that it "has analyzed this final rule and determined
that it would not cause disproportionately high and adverse human health or environmental
effects on minority populations and low-income population." However, the Administration
completed no actual analysis in the public record of how these NEPA changes would impact
environmental justice communities. None. Based on our long history using NEPA to illuminate
the significant impacts proposed projects would have on communities of color and low-income
communities, we know that the Administration could not have made this conclusion had it
actually performed a full and fair analysis. Many of the changes in the rules will have
devastating impacts on low income communities and communities of color including changes
that will be imposing arbitrary page limits, redefining "major federal action," eliminating the
requirements to consider cumulative and indirect effects, imposing bond requirements, no
longer circulating documents, and allowing collective responses to public comments. The
Administration has failed to analyze how these changes will impact environmental justice across
the country and flies in the face of Executive Order 12898.

• The Administration designed the rulemaking process to reduce public input: The rulemaking
process failed to make any attempt to meaningfully engage communities of color or low-income
communities. To begin with, the public was given only 60 days to read, analyze, and draft
comments on a dense fifty-page proposal overhauling the entire set of regulations. More than
300 organizations around the country requested an extension of this comment period in order
to meaningfully engage in the process. The Administration denied that request and then limited
in person public comment to only two public hearings. These hearings were both during the
work week, and neither meeting was held west of Colorado. People who wanted to comment
on the changes had to take time off work and travel, often times at considerable expense, just
to have their concerns heard. If an individual was able to make it to either Denver or
Washington, DC, then they had to be fortunate enough to secure one of only 105 speaking
tickets that sold out within 5 minutes. Making matters worse, the Washington D.C. hearing took
place on the same day the U.S. EPA convened a NEJAC meeting in Florida -limiting even the

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possibility of environmental justice community participation. In contrast, commenters on
changes to the Clean

Water Act's definition of "waters of the United States" were given over 200 days to comment on
that proposal, and the public outreach included over 400 public meetings with various
stakeholders around the country. See 80 Fed. Reg. 37057 (June 29, 2015). The Administration
characterized its paltry public participation process as "extensive public outreach" because the
Administration "attended the National Environmental Justice Advisory Committee (NEJAC)
meeting in Jacksonville, Florida to brief NEJAC members and the public on the proposed rule
and to answer questions." 85 Fed. Reg. 43,357 (July 16, 2016).

Despite the truncated comment period, hundreds of environmental and environmental justice groups
around the country weighed in opposing the changes. To help the NEJAC understand the depth of their
concerns, we have attached some of the comments submitted during comment period.

4. The NEJAC Should Use Its Voice To Take a Stand Against These NEPA Changes.

Since its inception, the NEJAC has played a unique role in the environmental justice space. The NEJAC
serves as a place where aggrieved communities have come to ask for intervention with the EPA and to
draw attention to the environmental burdens their communities are facing. While the NEJAC is charged
with providing advice on environmental justice to the EPA, it also has spoken to and had dialog with the
Interagency Working Group on Environmental Justice in the past. These massive and devastating
changes to our bedrock environmental law serve to remove communities from being involved in
decisions that will negatively impact them and will undoubtedly result in significant harm and
environmental injustice.

For these reasons, we urge you to immediately take a formal stand against the changes to NEPA by
adopting a resolution against the changes and to asking that they be withdrawn. We also urge you to
recommend to EPA and the Interagency Working Group to reject these changes and instead take steps
to further project communities facing significant impacts and environmental injustices because of
proposed
projects.

Respectfully submitted

American Alpine Club

Pamela Miller
Executive Director

George A. Kimbrell

Alaska Community Action on Toxics

Legal Director

Taylor Luneau
Policy Manager

Center for Food Safety

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Caroline Cox
Senior Scientist

Center for Environmental Health

Rosalie Winn
Senior Attorney
U.S. Clean Air

Environmental Defense Fund

Michele Roberts

National Co-Coordinator

Environmental Justice Health Alliance for
Chemical Policy Reform

Tom Wheeler
Executive Director

Environmental Protection Information Center
(EPIC)

Adam Carlesco
Staff Attorney
Food & Water Watch

Marcie Keever

Legal Director, Oceans & Vessels Program
Director

Friends of the Earth

Ani Kame'enui

Deputy Vice President, Government Affairs
National Parks Conservation Association

Ivy N. Fredrickson
Staff Attorney
Ocean Conservancy

Tricia Cortez
Executive Director

Rio Grande International Study Center
Stephen Bloch
Legal Director

Southern Utah Wilderness Alliance
Alison Flint
Senior Legal Director
The Wilderness Society

Kerene Tayloe

Director of Federal Legislative Affairs

WE ACT for Environmental Justice

Erik Molvar
Executive Director

Western Watersheds Project

Hilary Eisen
Policy Director

Winter Wildlands Alliance

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Alaska Community Action on Toxics * Animal Legal Defense Fund
Arbor Hill Environmental Justice Corporation * Breast Cancer Action
Buffalo River Watershed Alliance * Center for Environmental Health
Center for Food Safety * Community In-Power and Development Association, Inc. (CIDA) Detroiters
Working for Environmental Justice * Ecology Center

Environmental Justice Health Alliance for Chemical Policy Reform * Food & Water Watch
Friends of the Earth * Gasp * Green Door Initiative * Harambee House
Jesus People Against Pollution * New Mexico Environmental Law Center
New York Lawyers for the Public Interest * North Carolina Environmental Justice Network
Physicians for Social Responsibility * PODER Austin * Sierra Club * Sunrise Movement
Tallahassee Food Network * Texas Environmental Justice Advocacy Services (T.E.J.A.S.)

Toxics Action Center * WE ACT for Environmental Justice
West End Revitalization Association
Marc Brenman * Adrienne Hollis * Vincent Martin * Vernice Miller-Travis Maria
Savasta-Kennedy * Ronald White * Sacoby Wilson

Edward A. Boling

Associate Director for the National Environmental Policy Act
Council on Environmental Quality
730 Jackson Place NW
Washington, DC 20503

Submitted via https://www.regulations.gov

Re: Comments on Proposed Rule, "Update to the Regulations Implementing the
Procedural Provisions of the National Environmental Policy Act," CEQ-2019-0003

Dear Council on Environmental Quality:

These comments are submitted by WE ACT for Environmental Justice and the Environmental
Justice Clinic of Vermont Law School on behalf of Alaska Community Action on

Toxics, Animal Legal Defense Fund, Arbor Hill Environmental Justice Corporation, Breast Cancer

Action, Buffalo River Watershed Alliance, Center for Environmental Health, Center for Food Safety,
Community In-Power and Development Association, Inc. (CIDA), Detroiters Working for Environmental
Justice, Ecology Center, Environmental Justice Health Alliance for Chemical Policy Reform, Food &
Water Watch, Friends of the Earth, Gasp, Green Door Initiative, Harambee House, Jesus people Against
Pollution, New Mexico Environmental Law Center, New York Lawyers for the Public Interest, North
Carolina Environmental Justice Network, Physicians for Social Responsibility, PODER Austin, Sierra Club,

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Sunrise Movement, Tallahassee Food Network, Texas Environmental Justice Advocacy Services
(T.E.J.A.S.), Toxics Action Center, WE ACT for Environmental Justice, West End Revitalization
Association, Marc Brenman, Adrienne Hollis, Vincent Martin, Vernice Miller-Travis, Maria Savasta-
Kennedy, Ronald White, and Sacoby Wilson (together, Environmental Justice Commenters) in response
to the Council on

Environmental Quality's (CEQ's) publication of "Update to the Regulations Implementing the Procedural
Provisions of the National Environmental Policy Act," CEQ-2019-0003, 85 Fed. Reg.

16 (Jan. 10, 2010). Environmental Justice Commenters write to express deep concerns about
proposed changes to the National Environmental Policy Act (NEPA) regulations which would
adversely affect environmentally overburdened communities of color and low-income
communities (hereafter, environmental justice (EJ) communities) by unreasonably constraining
opportunities for public participation and restricting consideration of the cumulative impacts of
major federal actions, among other harmful effects. These changes are proposed in the name of

modernization, but they conflict with the core goals of NEPA: to protect the environment, to
promote the gathering of environmental information, to increase government accountability, to
disseminate facts and data, to ensure that agencies are fully informed of possible environmental
impacts, and to allow agencies to take those impacts into consideration before making

decisions.52

This comment urges CEQto withdraw the proposed rule and refrain from finalizing revisions
that would damage NEPA's core functions. The EJ Commenters focus especially on CEQ's failure to
evaluate the environmental justice impacts of the proposed rule, the need for robust public participation,
and analysis of cumulative effects. Part I describes the background and purposes of NEPA. Part II
discusses the inadequacy of CEQ's assessment of the proposed rule's disproportionate impacts on
communities of color and low-income communities. Part III provides more detail on why the EJ
Commenters oppose the proposed rule. Finally, Part IV makes recommendations for CEQto improve
compliance and enforcement within its authority under current regulations.53

I. Background

52 See e.g., 42 U.S.C. §4321 (1969); Bradley Karkkainen, Toward a Smarter NEPA: Monitoring and Managing
Government's Environmental Performance, 102 COLUM. L. REV. 903, 909-16 (2002); Jonathan Poisner, A Civic
Republican Perspective on the National Environmental Policy Act's Process for Citizen Participation, 26 ENVT'L L.
S3, 54-55 (1996); Sidney A. Shapiro, Administrative Law After the Counter-Reformation: Restoring Faith in
Pragmatic Government, 48 U. KAN. L. REV. 689, 693-96 (2000).

53 To avoid duplication with comments submitted by other community-based, environmental, and environmental
justice stakeholders, scholars, and experts, these comments focus on only a subset of objections to the proposed rule.
For example, as discussed in comments submitted by David E. Adelman, et al., Law Comments on the Council on
Environmental Quality NPRM, Update to the Regulations for Implementing the Procedural Provisions of the
National Environmental Policy Act, Docket No. CEQ-2019-0003 (March 10, 2020) (Law Professor's Comments),
some of the proposed changes "ofgreatest concern and weakest legal grounding" include segmentation ofprojects,
narrowing the range of alternatives to be considered, relaxing criteria for categorical exclusion, and placing limits
on judicial review. EJ Commenters agree with and incorporate by reference these comments.

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From the inception of the modern environmental justice movement, NEPA has been a crucial
engagement tool for communities of color and low-income communities.54 The goals of NEPA align with
those of environmental justice: to "preserve ... an environment which supports diversity and variety of
individual choice" and to "achieve . . . high standards of living and a wide sharing of life's amenities."55
NEPA is an essential tool in the fight against environmental racism, promoting environmental justice by
requiring federal agencies to include a proposed project's potential environmental, economic, and
public-health impacts on low-income, communities of color, and rural communities. One of the
visionary elements of NEPA is its creation of broad opportunities for public participation in government
decisions that affect communities and their environment. NEPA was intended to involve potentially
affected parties in deliberations about projects with significant environmental effects, and it recognizes
that when the public and federal experts work together, better decisions are made. All of this is
threatened by CEQ's proposed rule.

A. For Decades, Analysis Under NEPA has Been an Essential Mechanism for Assessing Whether Federal
Projects Were Consistent with Executive Order 12,898

In 1994, President Bill Clinton issued Executive Order (EO) 12,898, Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income Populations, and identified the NEPA
process as one of the primary vehicles for achieving environmental justice.56 EO 12,898 directs federal
agencies to make environmental justice part of their mission, and to identify and address the
disproportionate environmental and health effects of their activities on communities of color and low-
income populations.57 Furthermore, the EO requires agencies to ensure effective public participation
and access to information.7

The Presidential Memorandum accompanying the EO directs all agencies to utilize NEPA to
analyze environmental, health, economic, and social effects of federal actions, including effects on
communities of color and low-income communities; develop mitigation measures that address
significant effects of actions on communities of color and low-income communities; and to provide
opportunities for public input in decision making.58 Most importantly, agencies must provide
opportunities for effective community participation in the NEPA process.59

54 See Promising Practices for EJ Methodologies in NEPA Reviews, FED 'L INTERAGENCY WORKING GRP. ON ENVT'L
Justice & NEPA Comm. (Mar. 2016),

https://www.epa.gov/sites/production/files/201608/documents/nepa_promising_practices_document_2016.pdf.
ss Vernice Miller-Travis, Promises To Keep, THE ENVT'L FORUM (Dec. 2019),

https://www.metgroup.com/assets/Promises-To-Keep_Vernice-Miller-Travis.pdf see also, 42 U.S.C. §4331.

56 Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, Exec.
Order No. 12,898, 3 C.F.R. 859 (1995), reprinted as amended in 42 U.S.C. § 4321(1998) (hereafter cited as EO
12,898).

57 Id.

7 Id.

58 The White House, Memorandum for the Heads of All Departments and Agencies, Re: Executive Order on Federal
Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (Feb. 11, 1994).

59 Id.

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Executive Order 12,898 realizes the importance of gathering data and conducting research to
identify and address disproportionately high and adverse health, environmental, social, and economic
effects of federal agency programs and policies on communities of color and lowincome communities.60
Public participation is an integral part of addressing environmental justice concerns.6162 The
Memorandum also makes clear that an environmental assessment (EA), environmental impact
statement (EIS), finding of no significant impact (FONSI), or record of decision (ROD) should "address
significant and adverse environmental effects of proposed federal actions on minority populations, low-
income populations, and Indian Tribes."12 Furthermore, each federal agency must provide opportunities
for effective community participation in the NEPA process through consultation with affected
communities and improving the accessibility of public meetings, crucial documents, and notices.63

CEQ has repeatedly upheld and published guidance documents on how to include
environmental justice in NEPA analysis. In 1997, in consultation with the EPA and other agencies, CEQ
developed guidance to "further assist Federal agencies with their NEPA procedures so that
environmental justice concerns are effectively identified and addressed."64 CEQ recognizes that
environmental justice issues may arise at any step in the NEPA process,65 and it may warrant
consideration of environmental justice issues at each stage of the NEPA process.66

In 2016, CEQ issued a report on how better to implement environmental justice in the NEPA
process. CEQ and other agencies recognize that engaging community members early and often can
inform an agency's decision-making process.67 Agencies also benefit from communicating their
objectives for the proposed activity (infra "public participation").68 The CEQ document also recognizes
that communities have varying levels of access to information, and instructs agencies to "consider
providing notice to the public (as appropriate) of the meeting date(s) and time(s) well in advance and
through methods of communication suitable for minority and lowincome populations (including LEP
populations)."69 Furthermore, when looking at impacts on environmental justice communities, NEPA
requires agencies to consider three types of effects or impacts: direct, indirect, and cumulative
impacts.70 Specifically agencies should be mindful of chemical and non-chemical stressors that may

60 EO 12,898.

61 See U.S. Environmental Protection Agency, Office of Policy, Economics, and Innovation, Engaging the American
People: A Review of EPA's Public Participation Policy and Regulations with Recommendations for Action, EPA

62 -R-00-005, December 2000, p. 1; Damu Smith, campaigner, Greenpeace Toxic Campaign, Greenpeace, USA,
Testimony, January Hearing Transcript, p. 115; Peggy Shepard, executive director, West Harlem
Environmental Action, Inc., Testimony, January Hearing Transcript, p. 123. 12 The White House, supra note 8.

63 Id.

64 Environmental Justice - Guidance Under the National Environmental Policy Act, CEQ (1997).

65 Id.

66 Id.

67 Fed 'I Interagency Working Grp. on Envt 'I Justice & NEPA Comm, supra note 3.

68 Id.

69 Id.

70 Id.

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amplify impacts from the proposed action, and it notes that EJ communities may be differently affected
by past, present, or reasonably foreseeable future impacts than the general population.7172

B. NEPA Calls for Environmental Consideration to the 'Fullest Extent Possible'

The CEQ and the EIS were born concurrently from NEPA. Before the passage of NEPA in 1970,
federal agencies contemplating an action tended to focus nearly exclusively on the economics and
feasibility of their projects without addressing the "human environmental" consequences—including
the natural and physical environment, and the relationship between people and their environment.22 In
one of the most important opinions after NEPA was passed, the D.C. Circuit articulated that "perhaps
the greatest importance of NEPA is to require . .. agencies to consider environmental issues just as they
consider other matters within their mandates."7374 NEPA not only permits, but compels environmental
consideration24—and not in a cursory way, but "to the fullest extent possible."75 NEPA is an
environment-centered, rather than a projectcentered statute, and Congress did not intend the Act to be
a "paper tiger."76

EAs and EISs are intended not only to improve the decision-making processes of their drafting
agencies, but also to inform the president, Congress, other state and federal agencies, and members of
the public.77 An interpretation of NEPA hews most closely to the language and intent of Congress when
it provides the most useful environmental information for the consideration of all these stakeholders.
"A vital requisite of environmental management is the development of adequate methodology for
evaluating the full environmental impacts and the full costs of Federal actions."78 Evaluating the full
environmental impacts and complete costs of agency actions may be an aspirational goal—"crystal-ball
inquiry" is not required—but agencies must take all reasonable measures not excluded by conflicting
law.79 Willful departure from this standard can only be classified as arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.8081

NEPA directs agencies not to balance convenience and efficiency when carrying out its
objectives, but to use "all practicable means to protect environmental values."31 For years, CEQ's
regulatory language has been based on the statutory directive to comply "to the fullest extent possible .
. . . unless the existing law applicable to such agency's operations expressly prohibits or makes full

71 Id.

72 U.S.C. §4321.

73 Calvert Cliffs' Coordinating Comm., Inc. v. U. S. A tomic Energy Comm 'n, 449 F. 2d 1109, 1112 (D. C. Cir.

74 J 24

Id.

75 Id.

76 Id. at 1114.

77 Nat. Res. Def. Council, Inc. v. Morton, 458 F.2d 827, 833 (D.C. Cir. 1972).

78 S. REP. 91-296, at 20 (1969).

79 Morton, 458 F.2d at 837; see also Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195 (D.C. Cir. 1991)
(characterizing the standard for EIS preparation as a "rule of reason ").

80 Administrative Procedure Act 5 U.S.C. § 706.

81 U.S.C. §4332.

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compliance with one of the directives impossible."82 The existing regulatory language is also grounded in
the legislative intent behind the Act: NEPA was crafted so "that no agency shall utilize an excessively
narrow construction of its existing statutory authorizations to avoid compliance."33

C. Reducing Opportunities for EJ Communities to Engage and Curtailing Consideration of Cumulative
Impacts Threaten a Return to Disastrous Pre-NEPA Decision Making

Poor decision-making prior to NEPA illustrates the importance of robust public participation and
the consideration of cumulative impacts in developing projects that serve, not harm, the public. For
example, before NEPA, it was common for urban planners to harness federal funds for highways that
carved through communities of color, destroying whole neighborhoods. These projects displaced
families, increased crime, and reinforced racial segregation and environmental injustice.83 The threats
to public participation inherent in the proposed rule threaten to return the country to this pre-NEPA era
of wasteful and environmentally destructive projects.

Some pre-NEPA highway projects involved such inadequate consultation with local
communities—and are now so widely understood to have been urban disasters—that there are now
plans to demolish them altogether. This trend, known as "freeway removal," reflects a national shift
toward projects with better health, equity, and connectivity outcomes for local communities.35 These
pre-NEPA projects often bulldozed communities of color that city officials and planners did not view as
valuable enough to protect.36 "As Justice Douglas pointed out nearly [50] years ago, '[a]s often happens
with interstate highways, the route selected was through the poor area of town, not through the area
where the politically powerful people live.'"37 These projects disproportionately harmed communities of
color and low-income communities, and they also had negative consequences for urban areas generally.
One journalist wrote about the impacts of the construction of 1-81 in Syracuse, N.Y.:

The completion of the highway, 1-81, which ran through the urban center, had
the same effect it has had in almost all cities that put interstates through their hearts. It
decimated a close-knit African American community. And when the displaced residents
from the 15th Ward moved to other city neighborhoods; the white residents fled. It
was easy to move. There was a beautiful new highway that helped their escape.

But this dynamic hurt the city's finances, too. As suburbs grew, they broke off
from cities, taking with them tax revenues, even though their residents still used city
services. Although the Syracuse region was relatively healthy, the city started to get
very sick.38

H.R. Rep. No. 91-765, at 9 (1969) (Conf. Rep.).

33 Id. at 10.

83 See generally Alan Pyke, Top Infrastructure Official Explains how America used Highways to Destroy Black
Neighborhoods, THINKPROGRESS (Mar. 31, 2016), Available at: https://thinkprogress.org/top-infrastructure-
officialexplains-how-america-used-hishwavs-to-destrov-black-neishborhoods-96cl460dl962/: David Karas,
Highway to Inequity: The Disparate Impact of the Interstate Highway System on Poor and Minority Communities
in American Cities, 7 NEW VISIONS FORPub.Aff. (SCH. OFPUB. POL 'Y & ADMIN. U. Del.) (April 2015), available
at:

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The freeway-removal movement acknowledges the racial history of urban planning as well as
the importance of community input.39 Without the effective public participation embodied by existing
NEPA guidelines, urban redevelopment is likely to foster and perpetuate segregation and
discrimination.

As described above, 1-81 cut a path directly through Syracuse's thriving 15th Ward, which was
home to 90 percent of the city's African American population at that time.40 The highway displaced
approximately 1,300 families, causing economic, social and environmental suffering

https://cpb-us-w2.wpmucdn.eom/sites.udel.edu/dist/a/7158/files/2018/01/nvpa-volume-7-final-20jbacl.pdf
(explaining 1-40 in Nashville, TN, for example, was constructed through the center of a predominately African
American neighborhood and 1-94 in St. Paul, MN similarly spliced through one of the few African American
communities in the state).

35 See Congress for the New Urbanism, Freeways without Futures (2019), at 4, available at:

https://www.cnu.org/sites/default/files/FreewaysWithoutFutures_2019.pdf (seeking to answer the question of
whether we should "continue funneling billions of taxpayer dollars into an aging system that pollutes cities, divides
neighborhoods, and occupies valuable land that could instead be used for homes and businesses?"). 36 See generally
Alana Semuels, The Role of Highways in American Poverty, The Atlantic (Mar. 18, 2006), available at:
https://www.theatlantic.com/business/archive/2016/03/role-of-highways-in-american-poverty/474282/.37 Jersey
Heights Neighborhood Ass'n v. Glendening, 174 F.3d 180,195 (4th Cir. 1999] (King, J., concurring) (quoting Triangle
Improvement Council v. Ritchie, 402 U.S. 497, 502 (1971) (Douglas, J., dissenting)).

38 Semuels, supra note 36.

39 See generally Jessica Kraft-Klehm, 21st Century Futurama: Contemplating Removal of Urban Freeways in the
World of Tomorrow, 49 Wash. U. J. L. & Pol'y 205 (2015), available at:
https://openscholarship.wustl.edu/lawJournal_law_policy/vol49/issl/14.

40 New York Civil Liberties Union, The 1-81 Story, available at: https://www.nyclu.org/en/campaigns/i-81-story.
that continues to this day.84 Now, more than 50 years after its construction, city and state officials are
considering complete demolition of the 1.4-mile project. The state Department of Transportation has
decided the best option would be to remove the corridor completely and build a street grid that would
incorporate 25 acres of land to create a walkable, "landscaped urban space in an area that was blighted
by the highway."85 Unlike the highway, the community grid has the potential to reconnect
neighborhoods, enhance livability, and support economic vitality of the region.43 If the original planners
of 1-81 had engaged in adequate public consultation, there might never have been "blight" to remove.
This transition from a project that displaced families to one with a goal of bringing a community back
together exemplifies the value of public participation in decision-making.

If public participation had been emphasized before 1970, communities might still be reaping the
benefits today. Starting in 2018, the City of New York spent over a year and $75 million renovating the

84 Id.

85 Angie Schmitt, Street Grid to Replace Old 1-81 in Syracuse, NYS Decides, STREETSBLOG USA (Apr. 22, 2019),
Available at: https://usa.streetsblog.org/2019/04/22/street-grid-to-replace-old-highway-in-syracuse-state-decides/.
43 Press Release, N.Y. Dept. ofTrans., NYSDOT Releases Preliminary Draft Design Report/Draft Environmental
Impact Statement for the Interstate 81 Project (Apr. 22, 2019).

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Sheridan Expressway in the Bronx.86 A primary goal of the project was to reconnect a section of the
borough that had been cut off by the construction of a six-lane overpass.87 The overpass had been built
in the 1960s under the supervision of Robert Moses, one of New York

City's most notorious and impactful planners. Though Moses made significant contributions to New
York, he is also known for razing communities of color and low-income communities in the process, and
for defying or ignoring community input in decision-making.88 Renovations to the Sheridan Expressway
include a pedestrian bridge, a two-way bicycle path, and new crossings to restore residents' waterfront
access.89 If decision-makers had considered the concerns and comments of community residents during
the original construction, perhaps the project could have avoided negative consequences, and the $75
million modification might not have been necessary.

Without the robust public participation and cumulative-impacts analysis required by NEPA,
federal agencies were prone to make decisions without the benefit of local knowledge, or an
understanding of local impacts. These examples, in which agencies failed to consult with the impacted
communities, were fundamentally unjust, particularly for communities of color. Such projects are not
only inefficient and wasteful, but directly harm communities, and the mandate to avoid such impacts is
at the heart of both NEPA and EO 12,898. The proposed changes to the regulations, including an
abbreviated public-comment period,48 weaken the interpretation and implementation of the Act so
substantially as to threaten a return to this ineffective, top-down decision-making process. Ensuring
that communities have meaningful participation in projects that impact their future is essential to
preserving environmental justice.

D. Public Participation Leads to More Thorough Agency Review of Environmental Effects

Public participation is one of two "twin aims" of NEPA. "First, it places upon an agency the
obligation to consider every significant aspect of the environmental impact of a proposed action.
Second, it ensures that the agency will inform the public that it has indeed considered environmental
concerns in its decision-making process."90 CEQ has stated that "early and meaningful participation in
the federal agency decision making process is a paramount goal of

NEPA."9192

86 Dennis Slattery, Bronx's Sheridan Expressway transformed into tree-lined boulevard in first part of Hunts Point
Overhaul, DAILY NEWS (Dec. 11, 2019).

87 Id.

88 See Transcript, Diane Rehm on WAMU 88.5, Transportation Secretary Anthony Foxx on the Legacy of the U.S.
Highway System (Mar. 31, 2016) (explaining when Robert Moses built Jones Beach and the Southern State Parkway
going to the beach, he purposely built the overpasses at a low height to ensure that Black New Yorkers attempting to
travel to the beach by bus would not be able to do so).

89 Slattery, supra note 44.

48 See infra Part 11(C).

90 Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983) (internal citation omitted).

91 CEQ, supra note 14.

92 C.F.R. § 1500.1.

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A major purpose of CEQ's regulation is to ensure that the NEPA procedure provides
environmental information to public officials and the public,51 increasing the overall efficiency of the
nation's projects by forcing agencies to consider externalities.9394 The regulations require agencies to
make diligent efforts to involve the public throughout the NEPA process:53 "Effective environmental
reviews protect people, wildlife, and taxpayer dollars by ensuring construction of better projects that
serve the national good,"95 and one CEQ study identified NEPA's most enduring legacy as "a framework
for collaboration between federal agencies and those who will bear the environmental, social, and
economic impacts of their decisions."96 The current regulation emphasizes that information provided by
the environmental review process must be of high quality, and that public scrutiny is essential to
implementation.97 As former EPA Administrator Russell Train has said, "public involvement and careful
consideration of alternatives has produced better outcomes—for the agencies themselves, for the
nation, and for the human environment."98 In other words, public participation is central to NEPA's
role and to agency compliance.

Public input can have a huge influence on a project and often provides better, more efficient
outcomes: "Citizens often have valuable information about places and resources that they value and the
potential environmental, social, and economic effects that proposed federal actions may have on those
places and resources."99 The Hoover Dam bypass demonstrates the potential benefits of public input.
The initial EIS for the project did not adequately explore alternative sites for the bridge, but
environmental groups provided additional options that the project manager analyzed more thoroughly.
As a result of the comments, the bypass, which opened in 2012, runs closer to developed areas rather
than cutting through pristine corridors. The incorporation of public comments reduced harmful
environmental effects and allowed the project to move forward.59

Public input has led not only to safer alternatives, but also to better projects. Colorado's I-
70 Mountain Corridor represents another success story. The initial plans to improve the corridor
included blasting through cliffs, building ugly retaining walls, and channeling the Colorado River. But
responding to public comments, the Colorado Department of Transportation chose a plan that was
safer and caused less damage to the environment. The corridor won more than 30 awards for its
innovative design and sensitivity to the environment.100

93 Id.; Jones v. District of Columbia Rede v. Land Agency, 499 F. 2d 502, 513 (D.C. Cir. 1974).

94 C.F.R. § 1506.6.

95 H.R. Rep. No. 113-246, pt. 1, at 338 (2013).

96 The National Environmental Policy Act: A Study of Its Effectiveness After Twenty-Five Years, CEQ at 7 (1997)
https://ceq.doe.gov/docs/ceq-publications/nepa25fn.pdf.

97 Id.

98 NEPA Success Stories, CEQ (2016) https://ceq.doe.gov/get-involved/success_stories.html. (citing NEPA Success
Stories: Celebrating the 40- Years of Transparency and Open Government, ELI, at 4 (2010),
https://ceq.doe.gov/docs/get-involved/NEPA_Success_Stories.pdf.

99 A Citizen's Guide to the NEPA: Having Your Voice Heard, CEQ, at 1 (Dec. 2007). 59 Elly
Pepper, Never Eliminate Public Advice: NEPA Success Stories, NRDC (Feb. 1, 2015),
https://www. nrdc.org/resources/never-eliminate-public-advice-nepa-success-stories.

100 Id.

61 Id.

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Public comments benefit both communities and their surrounding natural environments,
leading to better outcomes for all involved. State Highway 9 in Colorado demonstrates how public
comments can benefit both the community and the environment. When considering improvements to
Highway 9, Colorado's Department of Transportation and the Federal Highway Administration turned to
NEPA comments for alternatives. Based on significant public input, in the end, the project incorporated
bus signals and wider shoulders for bicycles, provided for wetland mitigation, minimized tree removal,
and included a bridge over the Blue River to avoid harming wildlife.61

In other instances, public participation has identified errors in data or analysis. In 2009 a retired
test pilot delved into a 1500-page EIS prepared by the Corps of Engineers and other state agencies. This
concerned citizen found that the EIS contained mathematical errors substantially underestimating the
risk of introducing non-native oysters into the Chesapeake Bay. The revisions led to a change in the EIS,
demonstrating that the risk was too great to approve the proposed action—potentially saving the
environment and money.101102

NEPA allows communities to propose creative solutions. In 2000, the United States Forest
Service (USFS) published a draft EIS for logging and timber sale in Ashland, Oregon. The residents
formed the Ashland Watershed Stewardship Alliance and produced a 95-page alternate proposal. The
new proposal protected homes and communities from wildfires by targeting smallerdiameter trees in
the vulnerable wildland-urban interface zone and created local jobs in brushcutting. This proposal
became the basis for the development of a plan approved by the USFS and incorporated in the final EIS
in May 2001. Because the public got involved, the USFS moved forward with community support and
was able to develop a forest-management plan.103

These stories are not exclusive or unique; there are countless examples of how public
participation has ultimately improved NEPA's efficiency, the human environment, agency decision-
making, and public health and trust. CEQ's own experiences indicate that more and earlier public
involvement improves project planning, and notably the issues raised by some projects require more
time than others. Procedural constraints enforced under the guise of streamlining often result in cutting
corners and approving harmful projects, the exact danger that NEPA was designed to protect against.
Moreover, curtailing opportunities for public participation limits the opportunity for agencies to benefit
from local knowledge, including that of marginalized communities facing linguistic or cultural barriers.
These communities have the right to be heard, and agencies can only benefit from soliciting their input.

A letter from a bipartisan group of U.S. representatives—Andre Carson, Eleanor Holmes Norton,
Donna Edwards and Janice Hahn—concerning the Water Resources and Development Act of 2013,
highlights the dangers of inadequate NEPA review: "Poorly planned [U.S. Army Corps of Engineers]
projects can lead to incomprehensible losses, like the flooding of New Orleans during Hurricane
Katrina—and can destroy natural ecosystems that provide free and effective flood protection."104 The
way to make federal projects more efficient isn't to cut corners, but to engage in "robust project review
to help ensure better, more resilient projects." These legislators concluded: "We agree with the

101 NEPA Success Stories: Celebrating 40 Years of Transparency and Open Government, ENVT'L. L. INST., 6 (Aug.

102 ), https://ceq.doe.gov/docs/get-involvecl/NEPA_Success_Stories.pdf.

101 Id. at 20.

104 H.R. Rep. No. 113-246, pt. 1, at 338.

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conclusions reached by eight past chairs of the Council on Environmental Quality from both Republican
and Democratic administrations: NEPA is 'not an impediment to responsible government action; it is a
prerequisite for it.'"

In the decades following the passage of NEPA and other environmental laws, public awareness
of and participation in environmental decision-making has increased, and so have public educational
tools.65 A 1997 CEQ report found that "Partly as a result of NEPA, public knowledge of and
sophistication on environmental issues have significantly increased over the last 25 years."66 Diminishing
public-participation guidelines, or limiting agencies in their authority to exceed minimal public-
involvement measures, risks squandering the resource of an educated and active public.

E. Detailed Environmental Review Promotes Good Decision-Making by Federal Agencies

The current NEPA compliance framework already incorporates measures to divert projects for
which environmental review is unnecessary, so only projects that threaten significant impacts are
required to undergo heavy scrutiny. First, only major federal actions67 require an EA—minor actions do
not. Even then, an action may be "categorically excluded" from review under an agency rule if it fits into
a category that has been found, individually or cumulatively, to have no significant effect. As a result of
these rules, only a relatively small number of actions require a full EIS.

An EA generally requires only a brief discussion of the need for the proposal, alternatives in
cases of conflict, environmental impacts of the proposed action and alternatives, and a listing of
agencies and persons consulted.68 If, following an EA, an agency concludes that a project involves no
threats to the human environment, it can issue a FONSI and proceed. Only in cases where an agency has
foreseen a significant impact is an EIS mandatory. By the year 1993, some 50,000 EAs were being
prepared annually, of which only about 1 percent resulted in the preparation of an EIS.69

If an agency has determined that an EIS is necessary, even then there are measures in place to
limit the amount of paperwork70 and possible delay71 involved, and an agency may use a tiering
approach to limit the scope of alternatives under consideration.72 In short, CEQ regulations already

65 See, e.g., Investigating Environmental Contamination: A Guide For Communities, Great Lakes Ctr. For
Children's Envt'l Health And U. Of III. At Chicago Sch. Of Pub. Health (2019) https://greatlakes.uic.edu/wp-
content/uploads/sites/480/2019/07/

online_comm-resource-guide_071719.pdf (Last visited Dec. 19, 2019); .4 Citizen's Guide To Using Federal
Environmental Laws To Secure Environmental Justice Envt'l. L. Inst. (2002)

https://www.epa.gov/sites/production/files/2015-04/documents/citizen-guide-ej.pdf (last visited Dec. 19, 2019);
Lauren Braden, Activist Toolkit: A Citizen's Guide To Protecting The Environment, Seattle Audubon Soc'y
http://www.seattleaudubon.Org/sas/Portals/0/Conservation/

RESOURCES_AND_PUBLICATIONS/fullhand.pdf (last visited Dec. 19, 2019).66 CEQ,
supra note 57, at 18.

67 40 C.F.R. § 1508.18.

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68 National Environmental Policy Act Review Process, EPA, https://www.epa.gov/nepa/national-

environmentalpolicy-act-review-process (last visited Dec. 18).

69CEQ, supra note 57, at 19.

70 40 C.F.R. § 1500.4.

71 Id. § 1500.5.

12 Id. §1508.28.

provide for as simple, prompt, and rigorous an environmental review as is reasonably possible within
the terms of the statute. "Unfortunately, not every Federal agency, and not every NEPA review,
complies effectively with this mandate. Meaningful efforts to improve the Act's implementation should
address the critical needs for better guidance and additional training for agency personnel and enhanced
resources for NEPA implementation by federal agencies."105

Rather than seek to exclude environmentally significant categories from agencies' duties under
NEPA, CEQ should work to strengthen agency compliance with the rule already in place. Categorical
exclusions, in particular, are ripe for abuse. For example, the Forest Service has acted to exclude broad
swathes of its forest-management activity, such as "restoration," which encompasses "activities such as
removing trees affected by insects or disease through commercial timber harvest.... These projects
could also include reducing overgrown areas around communities to reduce wildfire risk and improve
wildlife habitat through mechanical thinning and prescribed burning."106 In other words, the Forest
Service claims the right to adopt logging policies that could affect millions of acres per year, but does
not consider any such activity to have a "significant effect" on the environment, even to the extent of
assessing a potential impact before proceeding.107 CEQ should work to improve agency compliance with
the current rule, not limit the scope of environmental consideration.

F. Extensive Environmental Review Reduces Expensive, Time-Wasting Litigation

NEPA's mandate to support informed decision-making also ensures that this process results in
less litigation. More importantly the prospect of litigation has, in some cases, enabled federal officials to
review their initial plan, take an in-depth look at issues, and persuade colleagues and supervisors that
particular information is needed, or that a superficially less-attractive alternative deserves a more
substantial look.108 With the public fully engaged, litigation is far less likely because communities are
satisfied with the project, and more confident that their concerns have been taken into serious
consideration.

105 Letter from Russell E. Train, seven other former CEQ chairs, and two general counsels, to Cathy McMorris,
chair of the Task Force on Reviewing and Strengthening the National Environmental Policy Act (Sept. 19, 2005) (on
file with the Georgetown Environmental Law and Policy Institute)

http.V/gelpi. org/gelpi/research_archive/nepa/CEQChairsLetter.pdf.

106 Supporting Information for Proposed Categorical Exclusions, U.S. FOREST SERV.
https://www.fs.fed.us/emc/nepa/revisions/pcesupportinginfo.shtml (last visited Dec. 19).

107 Id.

108 Envtl. L. Inst., supra note 62, at 7.

77 Id. at 23.

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In 1993, the Wallowa-Whitman National Forest supervisor was reviewing the management plan
for the Hells Canyon National Recreation Area. Ten people representing two tribes submitted a
comprehensive "Native Ecosystem Alternative" in response to the draft EIS. Rather than plowing ahead,
the Washington Forest Service notified the Wallowa-Whitman supervisor that a new EIS should be
drafted to include the Native Ecosystem Alternative. The supervisor then met with stakeholders for 18
months. In 2003, the agency released its final EIS with the approval of the tribes and other groups. "The
Wallowa-Whitman NF was able to settle all six minor appeals . . . and no litigation ensued."77

Public participation catches potential agency mistakes, thus avoiding possible litigation. In

2006, when the Forest Service in Idaho proposed a road project to improve fish passage and reduce
sedimentation, public comments identified a discrepancy between the planned buffer zone for the
endangered boreal toad and the federal requirement for that zone. In response, the agency redesigned
the road to protect the species. By incorporating public comments, "the Forest Service avoided
irretrievably committing taxpayer dollars to a project that violated federal laws and might have led to
litigation."109

A model NEPA process brings diverse perspectives to the table in order to reach a broadly
accepted outcome. In southern Utah, off-road vehicle use on public lands was a contentious issue. To
determine how much access to allow the vehicles, the Forest Service held numerous sessions, in 2016,
with members of the public, government representatives, stakeholders, and others. Commenting was
extended for a year before a draft EIS was issued. In 2009, the Forest Service published a final EIS. The
decision was broadly accepted by those concerned with the impacts of off-road vehicle use because
they directly affected the final outcome: "[T]he publication of a broadly-accepted final EIS and Record of
Decision to close routes and roads in a state known for its vocal social divisions regarding public lands
[off-road vehicle] use is a testament to an effective NEPA process."110 After benefitting from public
input, the plan avoided litigation.

NEPA litigation is often portrayed as obstructionist and combative by project proponents but
going to court can sometimes result in parties appreciating the merits of each other's positions. In 1996,
the Utah Department of Transportation announced the 120-mile Legacy Highway project.

Environmental and transportation advocacy groups were unsatisfied with the final EIS when it was
released in 2000 because it would unacceptably hurt internationally important wetlands. As a result, in
2001, the environmental groups filed suit, and the Tenth Circuit found deficiencies in the final EIS and
noncompliance with the Clean Water Act. The decision inspired the parties to work together to prepare
a supplemental EIS. The parties successfully negotiated an alternative and the parkway opened in 2008.
Ultimately, NEPA helped bring the various parties together and combined the best aspects of the state's
original proposal with the public's best ideas.111

Of course, NEPA litigation can also correct errors when an agency's failure to comply with NEPA
has led to poor decision-making. In 2013, for example, a group of local, state and national
environmental groups filed litigation against the Farm Service Agency (FSA) and the Small Business

109 Pepper, supra note 59.

110 Id. at 22.

111 Id. at 29; see also, Nicole Warburton, Who's minding the shore? Nature preserve turns wasteland into a wetland,

DESERETNEWS (Aug. 6, 2017).

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Administration (SBA), claiming the agencies violated NEPA by guaranteeing loans to C&H Farms, a
swine facility on the banks of a tributary to the Buffalo National River, without adequately assessing the
facility's environmental impact. The FSA said that it had assessed the environmental issues, while the
SBA had simply failed to weigh the farm's environmental effects.112 Ultimately, the district court found
the approval of the loan guarantees, and FSA's FONSI, arbitrary and capricious:

[FSA's] Environmental Assessment that supported the Finding of No
Significant Impact was cursory and flawed. It didn't mention the Buffalo River. It didn't
mention Big Creek. It didn't mention the nearby Mt. Judea school. It didn't mention the
Gray Bat. The Agency concluded that any environmental effect C&H might have would
be mitigated by following the Arkansas Department for Environmental Quality's waste-
disposal plan. But the Farm Service Agency failed to give reasons for that generalized
conclusion. And while it certainly could've relied on the ADEQ's mitigation measures, at
a minimum the Farm Service Agency had to make the case for doing so in its
Environmental Assessment. It didn't. Brevity is commendable, but conclusions can't
take the place of reasons.113

Ultimately, after significant efforts by community members and the State to address impacts
that should have been considered at the front end, in 2019 the State offered the facility a buyout at a
cost of $6.2 million.114115

Again, these cases highlight the vital role public participation plays in the NEPA process and the
benefits of public participation to equitable and good decision-making. There are countless such cases,
and they all point to one conclusion—more public participation leads to greater efficiency and less
litigation. Instead of "streamlining" the public-participation process, CEQ should look for ways to
improve and increase participation.

II. CEQ's Assessment ofWhether the Proposal Will Have a Disparate Impact on EJ Communities is
Grossly Inadequate, Especially Considering NEPA's Central Role in Protecting Their Health and Welfare

In lieu of an analysis under EO 12,898, CEQ provides a conclusory statement that it "[analyzed]
this proposed rule and determined that it would not cause disproportionately high and adverse human

112 Buffalo River Watershed Alliance v. U.S. Dept. ofAg., 2014 WL 6837005, *1 (E.D.Ark. 2014).

113 Id. at *4.

114 Emily Walkenhorst, C& H Hog Farms Takes State Buyout; $6.2MDeal Cut to Preserve Buffalo River, Ark.
DEMOCRAT & GAZETTE (June 14, 2019), https://www.arkansasonline.com/news/2019/jun/14/c-h-hog-farms-
takesstate-buyout-201906/ (noting CEQ proposes to bypass decision of the Eastern District of Arkansas to exclude
as non-major federal action "the farm ownership and operating loan guarantees provided by the Farm Service
Agency (FSA) . . . and the business loan guarantee programs of the Small Business Administration. " For the
reasons stated in this subsection, the EJ Commenters agreed with and incorporate by reference Moving Forward
Network, Comments on Docket ID No. CEQ-2019-0003, Notice of Proposed Rulemaking, 40 C.F.R. Parts 1500,
1501, 1502, 1503, 1504, 1505, 1506, 1507, and 1508 (March 10, 2020).

113 C.F.R. Ill (F).

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health or environmental effects on minority populations and low-income populations."84 However, even
cursory analysis would suggest that many key provisions in the proposed rule would have a severely
disparate and adverse impact on communities of color and low-income communities. These provisions
include but are not limited to imposing arbitrary page limits;116 redefining "major federal action";117
striking required cumulative-impact analysis;118 imposing a bond requirement to stay an action;119 no
longer circulating documents;120 and allowing collective responses to public comments.90 In sum, CEQ's
boilerplate language is grossly inadequate to fulfill its obligations under EO 12,898.

A. CEQ Failed to Comply with EO 12,898
Section III F (Executive Order 12,898)

The discussion of whether the proposed rule will have a disparate impact on communities of
color and low-income communities121 is entirely inadequate, and fails to comply with EO 12,898.122 As
the Fourth Circuit recently stated, "environmental justice is not merely a box to be checked."123 CEQ
dismisses its obligation seemingly by arguing that only "in the agency implementation" should
environmental justice effects be analyzed. To the contrary, CEQ has an obligation to assess compliance
with EO 12,898 in rulemaking. NEPA has been an essential mechanism for ensuring that disenfranchised
and underrepresented communities have voice in major federal actions.124 Abridging the public's
opportunity to participate through notice and comment has real consequences. Changes in that
process, and particularly the changes discussed below—reduced commenting time, moving documents
and comment sessions online, striking cumulative impacts, and limiting publication of key documents,
among others—would have disparate and adverse consequences for EJ communities.

B. The Proposed Rule Would Limit Critical Opportunities for Public Involvement and Undermine the
Protection of EJ Communities Historically Excluded from Decision-Making Parts 1500-1508

Executive Order 12,898 recognizes the importance of gathering data and conducting research to
identify and address disproportionately high and adverse effects of federal actions on communities of

116Id. §§ 1501.5, 1502.7, 1501.10.

117Id. §§ 1500.4(a), 1501.4.

118Id. § 1508.7.

119Id. § 1500.3(4).

120Id. §§ 1500.4(o), 1501.2(b)(2), 1502.9, 1502.20, 1502.21, 1503.4(c), 1506.3,1506.8(c)(2).

90 Id. § 1503.

121 Id. § 1500.

122 See Attachment A, Memorandum of Understanding of Environmental Justice and Executive Order 12,898, 7
Charter for Interagency Working Grp. on Envt 'l Justice (stating CEQ is a participating agency in the
Interagency Working Group and "agreed in the MOU to carry out the requirements of the requirements of
Executive Order 12,898"), available athttps://www.gsa.gov/cdnstatic/MOU_Environmental_Justice.pdf.

123 See Friends of Buckingham v. State Air Pollution Control Bd., 947 F.3d 68, 92 (4th Cir. 2020).

124 CEQ, Environmental Justice Guidance Under the National Environmental Policy Act (1997), available at
https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-EJGuidance.pdf (emphasizing
the importance of procedures under NEPA for identifying and addressing environmental justice concerns).

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color and low-income communities.125 Public participation is an integral part of addressing
environmental justice concerns,126127 and CEQ itself has emphasized "the importance of NEPA's public
participation process, pointing out that the President's Memorandum accompanying the EJ Executive
Order directed 'each Federal agency shall provide opportunities for community input in the NEPA
process.'"97 The proposed rule would limit public participation by changing the publication
requirements for NEPA-related documents, eliminating language exhorting agencies to promote
accessibility, broadening the latitude for agencies to omit crucial impacts, limiting the documents made
available to the public, erecting financial hurdles to acquiring documents, setting arbitrary time and
page limits, diminishing accessibility to limitedEnglish proficiency populations, de-emphasizing
transparency, and allowing extraneous proceedings to stand in for proper efforts to involve the
public.128

Since its inception, NEPA has been seen by Congress as a mechanism to rectify inadequate
participation in government decision-making. The Senate reported in 1969: "Many of the environmental
controversies of recent years have, in large measure, been caused by the failure to consider all relevant
points of view in the planning and conduct of Federal activities."129 Appreciation of the important role
played by affected communities—and EJ communities, in particular—has only grown since then.
Evidence suggests that meaningful involvement with these communities—beginning early in the review
process and continuing throughout—leads to (1) a more efficient review and (2) less litigation following
the review. This is the outcome, and therefore the process, that best serves the health and productivity
of the American people.

Not only does the public use NEPA participation to guide and improve agency decisionmaking, it
also deters inappropriate and unlawful behavior. In a 2005 letter to U.S. Representative Cathy
McMorris, chair of the Task Force on Improving and Strengthening NEPA, a group of eight former CEQ
chairs and two general counsels wrote that "[p]ublic participation under NEPA supports the democratic
process by allowing citizens to communicate with and influence government actions that directly affect
their health and well-being."130131 In this capacity, NEPA "serves as a watchdog, ensuring that Federal
agencies fulfill their responsibilities under the law." To omit and exclude public participation and
transparency from NEPA's purpose is to undermine the purpose of the Act.

The proposed rule reveals its authors' underlying misconception of NEPA's purpose from the
very first paragraph, which asserts: "The purpose and function of NEPA is satisfied if Federal agencies
have considered relevant environmental information and the public has been informed regarding the

125 EO 12,898.

126 See U.S. Environmental Protection Agency, Office of Policy, Economics, and Innovation, Engaging the American
People: A Review of EPA's Public Participation Policy and Regulations with Recommendations for Action, EPA

127 -R-00-005, December 2000, p. 1; Damu Smith, campaigner, Greenpeace Toxic Campaign, Greenpeace, USA,
Testimony, January Hearing Transcript, p. 115; Peggy Shepard, executive director, West Harlem
Environmental Action, Inc., Testimony, January Hearing Transcript, p. 123 97 CEQ, supra note 93, at 1.

128 See infra Part 11, III.

129 S. REP. 91-296, at 20 (1969).

130 Letter from Russell E. Train et al., former CEQ chairs and general counsels, to Cathy McMorris, chair of Task
Force on Reviewing and Strengthening the National Environmental Policy Act (Sept. 19, 2005)

http.V/gelpi. org/gelpi/research_archive/nepa/CEQChair sLetter.pdf.

131 C.F.R. § 1500.1(a).

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decision making process."101 Under the established interpretation of NEPA, decision-making is an
inclusive process. Simply "informing" the public of an agency's actions falls far short of statutory
compliance. NEPA is satisfied only when an agency has taken a "hard look" at environmental effects
before deciding on a project,132 and this "hard look" includes public participation.133134

Nonetheless, multiple sections of the proposed rule would now direct agencies to "review and
publish," rather than "circulate," environmental documents.104 Specifically, under § 1502.21, the CEQ
would no longer circulate EIS summaries, but only publish them online.105 This language would place the
onus on the public to act as a constant watchdog, rather than on the lead agency to properly
communicate its efforts. It is unreasonable to expect local residents, especially members of
marginalized populations, to remain abreast of federal agency plans before ground is ever broken in
their communities—especially since the federal government is comprised of some 450 agencies and
offices.135136 Because communities targeted for destructive projects are often marginalized and
economically disadvantaged, it is doubly important that agencies employ every means practicable to
reach them in the planning process. If CEQ seeks to safeguard the right to participate in the decision-
making process, it must continue to require agencies not just to "publish," but to "circulate" NEPA
reports.

On top of the diminished circulation requirement, the proposed rule's emphasis on determining
the "significance" of environmental impacts at the earliest stage of analysis, and on "eliminating from
further study non-significant issues," threatens to limit the EIS before the public, experts and other
federal agencies have been consulted.107 Environmental justice communities in particular will suffer if
agencies have discretion to determine that a project or impact is insignificant before public participation
has occurred. Many such communities already suffer disproportionate environmental burdens precisely
because their well-being was regarded in the past as insignificant.137138

Because scoping occurs so early in the NEPA process, it is likely that potentially significant
environmental issues discovered later could be excluded from an EA or FONSI. If agencies are directed
to purge "non-significant" issues at such an early stage, "prior to the notice of intent,"109 it is likely that
they will never come to the attention of the communities they affect. Under § 1500.3(c) of the
proposed rule agencies would be allowed to perform "scoping outreach,"139 during which they "may"
hold meetings, publish information, or use other means to communicate with interested individuals.140 If
environmental issues are identified and excluded from consideration as early as the scoping process,

132 Sierra Club v. Hodel, 848 F.2d 1068, 1093 (10th Cir. 1988).

133 Webster v. United States Dep't of Agric., 685 F.3d 411, 421 (4th Cir. 2012).

134 C.F.R. §§ 1500.4(o), 1501.2(b)(2), 1502.9, 1502.20, 1502.21, 1503.4(c), 1506.3, and 1506.8(c)(2) 105
Id. § 1502.21.

135 National Archives, Federal Register, Agencies, https://www.federalregister.gov/agencies (last visited Mar. 7,
2020).

136 C.F.R. § 1501.4(b).

137 New York Civil Liberties Union, supra note 41.

138 C.F.R. § 1501.9.

139 Id. § 1500.3.

140Id. § 1501.9(c).

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then public participation must also be required as early and as often as possible, in line with CEQ's
current guidance.

The proposed rule's provisions requiring reductions in paperwork would further limit the
public's ability to participate. In the spirit of "the fullest possible extent," transparency is required
whenever possible and reasonable. The proposed rule would instead encourage agencies to incorporate
materials by reference in order to cut down on bulk, erecting more barriers rather than promoting
access to information.141 CEQ should advise that whenever possible, agencies should include, not
exclude documents. This is particularly true of electronic documents, which cost virtually nothing and
create no waste. The proposed § 1502.21, on EIS publication, calls for agencies to "transmit the entire
statement electronically (or in paper copy, if so requested due to economic or other hardship),"142
whereas the current rule requires agencies to provide documents free of charge whenever possible.143
The proposed change threatens to decrease accessibility to individuals without access to technology,
people with disabilities, and limited-English-proficient populations. Individuals requesting an important
public record should not be required to plead economic hardship to receive a paper copy. Translations
or summaries of the most crucial documents, such as solicitations of comments, EAs, EISs, and FONSIs
should be made available by request, as required by Executive Order 13,166.144145

The language of the proposal's Part 1502 also raises transparency concerns. The current rule
states at § 1502.1: "An environmental impact statement is more than a disclosure document. It shall be
used by federal officials in conjunction with other relevant material to plan actions and make
decisions."116 The proposed rule would eliminate the mention of disclosure entirely: "An environmental
impact statement is a document that informs Federal agency decision making."146
It is similarly worrisome that the proposed rule would eliminate the requirement that an agency

"make every effort to disclose" responsible opposing views omitted from draft environmental impact
statements.147 The current language is crucial to emphasizing the second of NEPA's "twin aims," and its
elimination would threaten NEPA's overall effectiveness.

Section 1502.14, again restricts rather than enhances access to information. Whereas the
current rule describes the discussion of alternatives as "the heart of the environmental impact statement"
and requires "a clear basis for choice among options by the decisionmaker and the public,"148 the
proposed rule would cut that language completely. The role of public participation is similarly
threatened by the proposed § 1506.9, which allows another analysis prepared pursuant to other
proceedings to be substituted for an environmental impact statement in proposals for rules or
regulations.149 The proposed rule would require only, vaguely, that there be "public participation before

141 Id. § 1501.12.

142 Id. § 1502.21.

143Id. § 1506.6(f).

144 Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, 65 Fed.
Reg. 50121 (Aug. 16, 2000).

145 C.F.R. § 1502.1.

146 Id. § 1502.1.

147 Id. § 1502.9.

148 Id. § 1502.14.

149Id. § 1506.9.

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a final alternative is selected." Without any guarantee that public participation in these substitutable
proceedings meets or exceeds the requirements of a NEPA-specific process, this provision would
undercut that process.

C. The Proposal to Weaken Agency Obligations to Respond to Comments and Publish Them Would
Disproportionately Impact Environmental Justice Communities Parts 1503, 1506

The proposed rule would weaken requirements for agencies to publish and respond to public
comments. By disincentivizing comments, these changes would negatively impact public
participation.150151 The current rule requires that an agency preparing a final EIS "shall assess and
consider comments both individually and collectively . . . stating its response in the final statement."122 In
contrast, the proposed rule would change "shall" to "may," removing the obligation to respond to
comments, and affording agencies new discretion.152 Public comment not only benefits an agency in
planning, but also provides an important transparency function, and lays a foundation of evidence for
affected individuals to challenge violations of NEPA.153 Altering the legal duty to consider comments
conflicts with the goals of the Act.

T154he current rule requires substantive comments to be "attached whether or not the comment is
thought to merit individual discussion by the agency in the text of the statement," whereas
§ 1503.2 of the proposed rule would allow substantive comments or summaries of them to be

"otherwise published" in some extraneous manner.125 Members of the public and experts alike would be
less likely to comment if an agency could disregard even their most substantive scientific and technical
input, or omit it from the final statement. Diminished public input would lead to decreased
consideration of environmental impacts, to the diminution of NEPA. It would also reduce the overall
efficiency of the Act through costly environmental consequences and associated litigation.

Not only does the proposed rule threaten to eliminate the legal requirement that agencies
respond to comments, it would also limit agencies' responses to those comments. Should an agency
determine that a comment "does not warrant further agency response," it would no longer be required to
"cite the sources, authorities, or reasons which support the agency's position."126 Detailed consideration
of public comments is essential to the mandatory "hard look" of the environmental review process, and
the current rule requires this consideration. The new rule would remove the incentive, the
transparency, and the safeguard.

The proposed rule would also diminish agencies' duty to notify the public of NEPA-related
activities. The proposed rule eliminates the requirement that agencies "provide notice by mail to
national organizations reasonably expected to be interested in the matter" under certain

150 See, Ohio Valley Envtl. Coal. v. United States Army Corps of Engineers, 674 F.Supp.2d 783, 792 (S.D.W. Va.
2009).

131 C.F.R. § 1503.4.

152 Id.

153 See, e.g., Nat. Res. Def. Council v. Lujan, 768 F. Supp. 870, 877 (D.D.C. 1991).

154 C.F.R. § 1503.2 ("An agency.... may individually or collectively....") (emphasis added). 126
Id. § 1503.2.

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circumstances.155156 Under the proposed rule, notification of organizations that have specifically
requested notice is not required.128 Reducing the duty of agencies to provide notice, at a time when
electronic notification is simpler to provide than ever before, would be an arbitrary and capricious
interpretation of NEPA.

D. Bond Requirements for NEPA Action Would Disproportionately Affect EJ Communities Part 1500

The proposal for new bond requirements would disproportionately and adversely affect
communities based on income, race, and national origin. Section 1500.3(4)(c) for example, would allow
agencies to impose a bond requirement on parties in order to stay an action.157 Because community
groups often lack their own resources to challenge agencies on the basis of NEPA noncompliance, the
proposal would impact them disproportionately, and without regard to the validity of their claims.158
Such bond requirements stand to benefit only parties with deep pockets.131

E. Review to the Statutory 'Fullest Extent Possible' Requires Cumulative-Impact Analysis, and
Limiting This Analysis Would Disproportionately Affect EJ Communities Part 1508

CEQ's proposal to strike specific references to direct, indirect, and cumulative effects is
arbitrary, capricious, and not in accordance with law. Consideration of cumulative impacts is required
by statute—not discretionary—but the proposed rule purports to make it optional.159 The current rule
requires that agencies take a "hard look" at cumulative impacts of a proposed action,160 and there is no
plausible basis for the proposed change.161

The current regulation defines cumulative impacts as "the incremental impact of the action
when added to other past, present, and reasonably foreseeable future actions regardless of what
agency or person undertakes such other actions. Cumulative impacts can result from individually minor
but collectively significant actions taking place over a period of time."135 As the proposal itself points
out, there have been "numerous publications on the topic,"162 and they have been extensively
documented by biologists and public health experts.163 "Perhaps the most significant environmental
impacts result from the combination of existing stresses on the environment with the individually
minor, but cumulatively major, effects of multiple actions over time."164 When Congress drafted NEPA,

155 Contrast 42 U.S.C. § 1506.6.

156 C.F.R. § 1506.6.

157 Id. § 1500.3(4) (c).

138 Id. § 1500.3(4) (c).

131 Id. 11(B) n.55.

159 Id. § 1508.

160 Id. § 1508.7; San Juan Citizens Alliance v. United States Bureau of Land Mgmt, 326 F.Supp.3d 1227, 1248 (D.
N.M. 2019).

161 See National Environmental Justice Advisory Council, Ensuring Risk Reduction in Communities With
Multiple Stressors: Environmental Justice And Cumulative Risks/Impacts, EPA (2004). 135 40 C.F.R. § 1508.7.

162 Id.

163 EPA, supra note 133.

164 CEQ, supra note 47, at 29.

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concerns about cumulative impacts were front and center. The 1968 Congressional White Paper on a
National Policy for the Environment included an entire section on ecology, and detailed, at length,
concerns that "[o]rganic nature is such a complex, dynamic, and interacting, balanced and interrelated
system that change in one component entails change in the rest of the system. Isolated analytical study
of separate components cannot yield desired insight."165 As CEQ wrote in 1997, "[t]he passage of time
has only increased the conviction that cumulative effects analysis is essential to effectively managing
the consequences of human activities on the environment. The purpose of cumulative effects analysis,
therefore, is to ensure that federal decisions consider the fill range of consequences of actions."166

As the Second Circuit held in Hanly v. Kleindienst, an environmental assessment must consider:

(1) the extent to which the action will cause adverse environmental effects in
excess of those created by existing uses in the area affected by it, and (2) the absolute
quantitative adverse environmental effects of the action itself, including the cumulative
167harm that results from its contribution to existing adverse conditions or uses in the
affected area.141

Deferring to CEQ's own regulations, the Fifth Circuit established a set of five considerations to
be included in cumulative-impact analysis.168 Each is grounded within the procedural call of NEPA § 102:

(1) the area in which effects of the proposed project will be felt;

(2) the impacts that are expected in that area from the proposed project;

(3) other actions—past, proposed, and reasonably foreseeable—that have had or are
expected to have impacts in the same area;

(4) the impacts or expected impacts from these other actions; and

(5) the overall impact that can be expected if the individual impacts are allowed to
accumulate169

This is not merely an interpretation of CEQ guidelines, but an evaluation of those guidelines
within the statutory framework. Redefining effects in a way that weakens the obligation to assess
cumulative impacts is simply inconsistent with the mandate of NEPA.

NEPA requires an EIS for all "major federal actions significantly affecting the quality of the
human environment." Federal courts have expressly rejected the argument that magnitude of a project

165 S. Comm. On Interior And Insular Affairs And H.R. Comm. On Science And Aeronautics, Congressional White
Paper On A National Policy For The Environment, 90th Cong., 4-5 (1968).

166 CEQ, Considering Cumulative Effects Under the National Environmental Policy Act (Jan. 1997),
https://www. energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-ConsidCumulEffects.pdf

167 F.2d 823, 830-31 (2d Cir. 1972).

168 Fritiofson v. Alexander, 772 F. 2d 1225, 1245 (5th Cir. 1985), abrogated by Sabine River Auth. v. United States
Dep't of Interior, 951 F.2d 669 (5th Cir. 1992).

169 Id.

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can be separated from its impact.170 If a cumulative impact is significant, therefore, it statutorily
requires an EIS. Without an understanding of cumulative-impact measures, there can scarcely be a
detailed discussion of potential mitigation measures as required. "One more factory polluting air and
water in an area zoned for industrial use may represent the straw that breaks the back of the
environmental camel. Hence the absolute, as well as comparative, effects of a major federal action must
be considered."171

As the National Environmental Justice Advisory Council wrote in its December 2004 report,

Ensuring Risk Reduction in Communities with Multiple Stressors: Environmental Justice and Cumulative
Risks/Impacts'.

The sense of anguish expressed . . . and uniformly experience by disadvantaged,
underserved, and environmentally overburdened communities reflects a complex web
of combined exposures. In recent years, this combination has come to be described as
'cumulative risks and impacts.' Manifested ... is the concept of vulnerability, a matrix
of physical, chemical, biological, social and cultural factors which result in certain
communities and sub-populations being more susceptible to environmental toxins,
being more exposed to toxins, or having compromised ability to cope with and/or
recover from such exposure.172

Over time, scientific evidence has further demonstrated the health consequences of the
cumulative impacts of social vulnerability, individual susceptibility and exposure to environmental
hazards.173 No issue could be more central to residents of already environmentally overburdened
communities than whether cumulative impacts will be considered in environmental decisionmaking,
and no proposal could raise more significant concerns about environmental justice than weakening the
requirement that cumulative impacts be considered.

F. Redefining 'Effects or Impacts' Threatens to Eliminate Analysis of Climate Impacts, Which Will
Disproportionately Affect EJ Communities

Part 1508

170 Minnesota Pub. Interest Research Grp. v. Butz, 498 F. 2d 1314, 1321 (8th Cir. 1974).

171 Hanly, 471 F.2dat831 (2d Cir. 1972).

172 National Environmental Justice Advisory Council, Ensuring Risk Reduction in Communities with Multiple
Stressors: Environmental Justice and Cumulative Risks/Impacts, at 1 (Dec. 2004).

173 See Rachel Morello-Frosch et al., Understanding the Cumulative Impacts of Inequalities in Health:
Implications for Policy, 30 Health Affairs (May 2011),

https://www .healthaffairs.org/doi/full/10.1377/hlthaff.2011.0153. 148 See generally Kathy Lynn et al, Social
Vulnerability and Climate Change: Synthesis of the Literature, USDA

Gen'L TECH. ReportPNW-GTW-838 (Aug. 2011), at 1, https://www.fs.fed.us/pnw/pubs/pnwjgtr838.pdf ("effects
of climate change are expected to be more severe for some segments of society than others because of geographic
location, the degree of association with climate-sensitive environments, and unique cultural, economic, or
political characteristics of particular landscapes and human populations"). 149 40 C.F.R. § 1508.

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Although comments on NEPA's "Draft National Environmental Policy Act Guidance on
Considerations of Greenhouse Gas Emissions" are outside the scope of this document, EJ Commenters
profoundly disagree with any definition of "[e]ffects or impacts" that would weaken the responsibility of
agencies to assess the climate impacts of major federal actions. Omitting these impacts would have a
disproportionate effect on communities of color and low-income communities.148

By cutting any mention of "cumulative" effects or impacts, the proposed rule threatens to
eliminate the analysis of climate impacts,149 an important cumulative effect that is, by the nature of its
scale, incremental. Without guidance to consider less greenhouse-gas-intensive alternatives, agencies
may mistakenly dismiss them as meaningless externality,174 to the great cost and detriment of the
country.175 The populations most vulnerable to climate change impacts include "low income, some
communities of color, immigrant groups (including those with limited English proficiency), Indigenous
peoples, children and pregnant women, older adults, vulnerable occupational groups, persons with
disabilities, and persons with preexisting or chronic medical conditions."152 As the NAACP recognized,
environmental justice is inextricable from climate justice.176

CEQ must address not only small-scale environmental impacts, but global ones as well. In 1969,
a House of Representatives Report on NEPA quoted testimony asking: "Is the climate changing in an
unnatural manner? Is there likely to be an oxygen shortage? . . . How much production of inorganic
products can we produce without fouling the global environment?"177178 Congress was likewise prescient
in its concerns about generational equity, noting that NEPA should help to "fulfill the responsibilities of
each generation as trustee of the environment for succeeding generations."155 This statement recognizes
that each generation has a responsibility to improve, enhance, and maintain the quality of the
environment to the greatest extent possible for the continued benefit of future generations.179180
Likewise, the text of NEPA requires not just CEQ, but all federal agencies, to "recognize the worldwide
and long-range character of environmental problems."157

Federal courts have also endorsed this view. "We think NEPA is concerned with indirect effects
as well as direct effects. There has been increasing recognition that man and all other life on this earth
may be significantly affected by actions which on the surface appear insignificant."181182 Courts

174 SeeArmon Rezai et al., Global Warming and Economic Externalities, SCHWARTZ CTR. FORECON. POLICY
Analysis, New School for Social Research, Working Paper No. 2009-3

https://www. economicpolicyresearch.org/images/docs/research/climate_change/SCEPA%20Working%20Paper%20
2009-3.pdf.

175 Climate Change Impacts, NOAA & U.S. DEP'T OF COMMERCE, https://www.noaa.gov/education/
resource-collections/climate-education-resources/climate-change-impacts (last visited Dec. 15, 2019).

152 The Impacts of Climate Change on Human Health in the United States: A Scientific Assessment, Ch. 9:
Populations of Concern, U.S. GLOBAL CHANGE RESEARCH PROGRAM,
https://health2016.globalchange.gov/populations-concern (last visited Dec. 15, 2019).

176 Environmental and Climate Justice, NAACP, https://www.naacp.org/issues/environmental-iustice/ (last visited
Dec. 18, 2019).

177HR. REP. 91-378, at 119 (1969).

178 U.S.C.A. § 4331(b)(1) (West); see also S. REP. 91-296, at 2 (1969).

179 S. REP. 91-296, at 18.

180 U.S.C.A. § 4332(2)(F) (West).

181 Minnesota Pub. Interest Research Grp. v. Butz, 498 F. 2d 1314, 1322 (8th Cir. 1974).

182 F.Supp. 2d 491, 517 (M.D. N. C. 2010); see also San Juan Citizens Alliance v. United States Bureau of Land
Mgmt, 326F.Supp.3d 1227, 1248 (D. NM. 2019).

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considering more recent cases such as North Carolina Alliance for Transp. Reform v. Dep't ofTransp.,
still endorse this view after more than 30 years: "Defendants had an obligation to take a 'hard look' at
'any adverse environmental effects' of the project.... these include 'indirect effects,' which are those
that 'are caused by the action and are later in time or farther removed in distance, but are still
reasonably foreseeable.'"159 The scope of an EIS properly includes climaterelated impacts, and
excluding them categorically would be arbitrary and capricious.183

III. Key Provisions in the Proposed Rule Would Undermine the Reasonable Consideration of
Environmental Impacts Required by NEPA

NEPA doesn't require that environmental harms take precedence over other factors, but it does
require that these harms be taken into consideration.184185 Although CEQ has declared that the
proposed rule would "promote better decisions consistent with the national environmental policy set
forth in section 101 of NEPA,"162 many key provisions in the proposed rule would instead undermine
considerations of environmental impacts. Provisions in the rule that are inconsistent with NEPA's
substantive goals include: redefining "major federal action;"186 limiting another agency's ability to do
more under NEPA;187 limiting the scope of reasonably foreseeable environmental impacts;188 and adding
a confusing exception to the provision that governs supplemental EIS requirements.166

Congress directed federal agencies to comply "to the fullest extent possible" with 189NEPA's
procedural requirements, such as the inclusion in an EIS of environmental impacts, any adverse effects,
and alternatives to a proposed action.167 Federal courts have interpreted this directive as a "rule of
reason,"190191 requiring all reasonable measures to delineate and consider the components of an
environmental impact statement. This requirement includes adherence to the "multidisciplinary" and
"social science" approaches described by NEPA § 102(a). The current NEPA rule reflects this
multidisciplinary approach by observing that "[a]ccurate scientific analysis, expert agency commentary,
and public scrutiny are essential to implementing NEPA."169 However, the proposed rule would
eliminate this important language without justification and undermine the purpose of the statute.

A. Redefinition of 'Major Federal Action' Threatens Overburdened Communities

183 Wyoming v. United States Dep't of Ag., 661 F.3d 1209, 1251 (10th Cir. 2011).

184 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 333 (1989).

185 C.F.R. 1500.

186Id. §§ 1500.4(a), 1501.4.

187Id. §§ 1500.3, 1507.3.

188Id. §§ 1501.8(b)(7), 1502.13.

166 Id. § 1502.

189 U.S.C. § 4332.

190 Scientists' Inst, for Pub. Info., Inc. v. Atomic Energy Comm'n, 481 F.2d 1079, 1092 (D.C. Cir. 1973).

191 CFR § 1500.1 (b.)

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CEQ's proposal to redefine major federal actions to exclude swathes of decisions that have
significant environmental impacts on environmental justice communities is arbitrary and capricious, and
inconsistent with NEPA. Incremental impacts hit hardest when they affect already overburdened
communities of color and low-income communities. Even impacts that have little or no public-health
effect individually can cumulatively devastate a community. While some toxins are unsafe at any level
of exposure,192 others may become dangerous at specific thresholds, a phenomenon known as a "non-
linear impact." This means that one federal agency decision, individually insignificant, could have
extreme health consequences by exacerbating existing or reasonably foreseeable future conditions.
Furthermore, otherwise-unrelated activities and pollutants may have "synergistic effects" more
significant than either in isolation. For example, lead is an immunosuppressant, which increases
susceptibility to bacterial infections.193 Together, lead and bacteria are disproportionately more
dangerous than lead or bacteria. For this reason, "a comprehensive, integrated, and unified approach
toward multiple environmental hazards in overburdened communities is critical to properly addressing
cumulative risks and impacts."194195

For example, CEQ provides no reasonable justification for excluding loan guarantees from the
Farm Services Agency and the Small Business Administration from the definition of major federal
action.196 The impact of loan guarantees by the FSA and SBA can't be underestimated: from 2012 to
2016, for example, the SBA alone guaranteed 1,524 loans to poultry facilities, totaling approximately
$1.8 billion.197 And the environmental impacts of industrial animal operations, particularly on
environmental justice communities, are significant. The concentration and under-regulation of confined
animal feeding operations in North Carolina has resulted in severe and well-documented public health
impacts associated specifically with Black, Latinx and Native American communities.175

B. CEQ Must Not Hinder or Limit Agency Procedures to Comply with NEPA Parts 1500-1501, 1507

In contrast to the Act's directive that agencies comply to "the fullest extent possible," and its
spirit of inclusion, the proposed rule would limit the power of agencies to adopt additional procedures
or requirements to ensure compliance with NEPA. The proposed § 1500.3 states that

"[a]gency NEPA procedures to implement these regulations shall not impose additional procedures or
requirements beyond those set forth in these regulations, except as otherwise provided by law or for
agency efficiency."176 This limiting language is reiterated in § 1507.3 of the proposal: "Except as
otherwise provided by law or for agency efficiency, agency NEPA procedures shall not impose
additional procedures or requirements beyond those set forth in these regulations."177 But to comply with

192 See T. Vorvolakos et al., There is no safe threshold for lead exposure, PSYCHIATRIK1, July-Sept. 2016, at 204.

193 Biologic Markers in Immunotoxicology, NAT 'L RESEARCH COUNCIL (US) SUBCOMMITTEE ONiMMUNOTOXICOLOGY
(1992), at 63-64.

194 EPA, National Environmental Justice Advisory Council, Ensuring Risk Reduction in Communities with Multiple
Stressors: Environmental Justice and Cumulative Risks/Impacts, at 7 (2004).

195 C.F.R. § 1508.7.

196 Update to the Regulations, at 1709.

197 Office of Inspector General, Small Business Administration, Evaluation of SBA 7(A) Loans Made to Poultry
Famers, Report 18-13, at 2 (March 6, 2018) https://www.sba.gov/sites/default/files/oig/SBA-01G-Report-18-13.pdf.

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NEPA, federal agencies must be free to conduct environmental review "to the fullest extent possible,"
which may vary according to agency resources, the details of the project, and the particularities of
potential sites. In other words, CEQ seeks to impose arbitrary limitations on "the fullest extent possible."
Placing limits on agencies' environmental consideration is not within CEQ's authority under NEPA.

Other provisions would specifically limit agencies' freedom to engage the public, solicit
comments or incorporate them into the project-planning process. Under § 1500.3(b)(3), the proposed
rule would limit the comment period on a final EIS to 30 days, after which any right to comment would
be "deemed unexhausted and forfeited."178 Especially for large and complex projects, the current 45 days
is already an all-too-short period for other agencies, governments and community stakeholders to
receive, disseminate, digest and respond to documents.179 Moreover, many of the local residents most
affected by a major federal project are initially neither educated

175 V. Guidry et al., Connecting Environmental Justice and Community Health Effects of Hog Production in North
Carolina, 79 North Carolina Medical J. 324-328 (Sept. 2018) (citing J. Johnston and S. Wing, Industrial Hog
Operations in North Carolina Disproportionately Impact African-Americans, Hispanics and American Indians,
Chapel Hill, NC: Dep'tof Epidemiology, Uni. of North Carolina at Chapel Hill (2014)) (demonstrating the
disproportionate impacts of the swine industry on African American, Latinx, and Native American communities
that led the North Carolina Environmental Justice Network, Rural Empowerment for Community Help (REACH)
and Waterkeeper Alliance, Inc., to file a complaint against the state Department of Natural Resources for
permitting more than 2,000 hog operations in violation of Title VI of the Civil Rights Act. In 2017, EPA issued a
Letter of Concern to the state agency raising concerns about the negative impacts of the facilities on communities
of color.); see also Letter to William G. Ross, Department of Environmental Quality, from Lilian Dorka, External
Civil Rights

Compliance Office, EPA, EPA Case # 11R-14-R4 (Jan. 12, 2017), available at
https://www.epa.gov/sites/production/files/2018

05/documents/letter_of_concern_to_william_g_ross_nc_deq_re_admin_complaint_llr-14-r4_.pdf; For the
reasons stated in this subsection, the EJ Commenters agreed with and incorporate by reference Christina Stella,
Animal Legal Defense Fund, Comments on Update to the Regulations Implementing the Procedural Provisions of
the National Environmental Policy Act (Docket No. CEQ-2019-0003) (March 10, 2020).176 40 C.F.R. § 1500.3.

111 Id, § 1507.3.

178 Id. § 100.3(b)(3).

179Exec. Office Of The President, Fact Sheet: CEQ On Length OfEnvironmental Impact Statements, CEQ (2019)
https://www.whitehouse.gov/wp-content/uploads/2017/ll/20190722EISPageLengthFactSheet.pdf (last visited
Dec. 19, 2019).

about198 the project nor organized to respond to it. The proposed rule states that it "is the Council's
intention that any actions to review, enjoy, stay, or alter an agency decision on the basis of an alleged
NEPA violation be raised as soon as practicable," but the practical effect of these "streamlining"
measures may be that communities are unable to exercise their rights before irreversible actions are
taken.

The proposed rule would require that agencies provide for the electronic submission of
comments,180 but it fails to acknowledge that many individuals affected by major federal projects may

198 C.F.R. § 1503.1 (3)(c).

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experience technical or linguistic barriers to electronic publication and processes. In doing so, it
threatens their right to participate. Other provisions allowing agencies to conduct public hearings and
meetings by electronic communication199 and publish documents electronically200 threaten to
disenfranchise individuals with limited English proficiency or limited financial means and violate the
spirit of NEPA.

C. The Proposed Rule Would Set Arbitrary Limits and Inhibit Consideration of Reasonably Foreseeable
Environmental Impacts

Parts 1501, 1502, 1508

The scope of necessary and practicable environmental review is variable by geography and
project type. For example, construction of an airport would involve different and more extensive
environmental considerations than a large office building. However, CEQ's proposed rule would set
arbitrary time and page limits for environmental reports.201 The current rule states clearly and
specifically that "the Council has decided that prescribed time limits for the entire NEPA process are too
inflexible."202 However, the proposed rule would establish arbitrary timeframes of one year for
environmental assessments, and two years for environmental impact statements.203 Although the
current version of the rule allows an agency to set project-specific timelines, that is considerably
different from setting an arbitrary global deadline, which would only inhibit consideration to "the fullest
possible extent."

NEPA specifically requires an EIS to include a detailed discussion of alternatives.204 This includes
considering alternatives that might be outside of the lead agency's scope of expertise.205206 But, under §
1501.8(b)(7) of the proposed rule, a cooperating agency would be required to limit its comments "to
those matters for which it has jurisdiction by law or special expertise."188 Cooperating agencies are also
required to work under the timelines of lead agencies, risking the possibility that process will devolve
into rubber-stamping exerices. By potentially limiting the input and thoroughness of other agencies—
which may have been brought to the project specifically because of their relevant authority or
expertise—this provision conflicts with the overall goals of the NEPA process.

Similarly, § 1502.13 of the proposed rule, regarding environmental impact statements, would
require that "[w]hen an agency's statutory duty is to review an application for authorization, the agency
shall base the purpose and need on the goals of the applicant and the agency's authority."207 However,

199 Id. § 1506.6(3) (c).

200 Id. § 1507.4.

201 Id. §§ 1501.5, 1502.7, 1501.10.

202 Id. § 1501.8.

203 Id. § 1501.10.

204 Morton, 458 F. 2d at 834.

205 Id.

206 C.F.R. § 1501.8(b)(7).

207 Id. § 1502.13.

190 Id. § 1502.14.

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the current rule explicitly requires consideration of "reasonable alternatives not within the jurisdiction of
the lead agency/'190 meaning the proposed change would markedly reduce the statutorily required
consideration of alternatives. As CEQ explained in a 1986 memo, in addition to alternatives "outside the
legal jurisdiction of the lead agency," an EIS must also consider alternatives involving potential legal
conflicts.208209 "Alternatives that are outside the scope of what Congress has approved or funded must
still be evaluated in the EIS if they are reasonable, because the EIS may serve as the basis for modifying
the Congressional approval or funding in light of NEPA's goals and policies."192

By considering only the "goals of the applicant and the agency's authority," CEQ threatens to
unacceptably diminish the consideration of alternatives—the means to accomplish the agency's
purpose—and reduce the utility of the EIS to Congress and other NEPA stakeholders. For example, the
Federal Highway Administration (FHWA) might consider the problem of rush-hour traffic in a major city
and weigh the possibility of constructing a new highway. Under the proposed rule, the only goals under
consideration would be those of the FHWA (to alleviate congestion). The only authority under
consideration would be the authority delegated to FHWA (to fund highways). It is therefore implied that
the only consideration would be whether a new highway would alleviate traffic. Another way to achieve
FHWA's goal might be to subsidize the construction of affordable housing in the city center, but
because this does not fall under FHWA authority, it would be excluded from the discussion of the need
for a project. In the same way, the language of the proposed rule would unacceptably exclude the
jurisdiction of other agencies. Using the same example, FHWA might state a goal of reducing traffic-
related deaths, but the diminished airquality resulting from increased local highway traffic might cause
many more deaths than the traffic alleviation prevents, and directly conflict with the goals of EPA or the
Department of Health and Human Services. To limit discussion of the need for a project to "the goals of
the applicant" in this case would literally disregard environmental effects—precisely counter to the
goals of NEPA.

The proposed rule retains a requirement to consider the "no-action alternative," but this
requirement is practically meaningless if the scope of considering project goals and necessity is limited
to agency goals and jurisdiction. If a lead agency's goals conflict with those of another agency, or if other
agencies are better positioned to solve a problem, this information should be communicated to
Congress, policymakers, and the public. This big-picture consideration is central to the role of an EIS,
and to ban its inclusion would arbitrarily and capriciously diminish the value and effectiveness of NEPA
environmental review.

CEQ limitations on the breadth and depth of NEPA reporting also have negative implications for
state-level environmental protection. When CEQ issued its advance notice of proposed rulemaking on
this issue, it received a comment from the attorneys general of California,

Illinois, Maryland, Massachusetts, New Jersey, New York, Oregon, Vermont and Washington, and the
secretary of the Pennsylvania Department of Environmental Protection. The number of signatory states
is remarkable, but the list should by no means be read as exhaustive of those in opposition to "any

208 Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations, 46 Fed. Reg.

209 (March 23, 1981) (as amended in 1986). 192
Id. at 18027.

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revisions that would threaten or destroy the fundamental environmental protections in NEPA."210 The
commenting States found, as we do, that "existing data do not demonstrate a need for any significant
changes to NEPA regulations implied by this Advance Notice," and insisted that CEQ must "continue to
prioritize protection of public health and the environment, and to ensure public participation in
accordance with NEPA, over mere administrative expedience."

States have their own, specific interest in ensuring that the NEPA process is thorough and
involves public participation: They are injured when their residents "suffer from the effects of
environmental pollution or degradation, including cumulative impacts in environmental justice
communities." States have a duty to protect their residents from environmental health risks. Moreover,
states are required to undertake NEPA review when they partner with federal agencies on joint
projects. Major changes to the process would "require revisions to the States' internal processes and
significant investments of time and training resources to accommodate disruptive changes to long-
settled processes."211

Some states, such as New York, have historically accepted a federal EIS in lieu of a state EIS, but
"[wjeaker federal review, less comprehensive federal EISs, or preparation of fewer EISs under NEPA
may require that more EISs be prepared under a state process, leading to increased expenditures of state
resources."212213 In California, limiting the federal review of alternatives or cumulative impacts could
make coordinated review under state and federal environmental framework statutes impossible. By
upsetting state statutes, administrative procedures and caselaw—and limiting the involvement and
recourse of affected citizens—the suggested revisions to the NEPA process threaten to increase
litigation while decreasing the efficiency of the projectplanning process.

D. CEQ's Exclusion of Effects that May be Distant in Time or Geography Violates the Letter and
Spirit of NEPA
Part 1508

In addition to eliminating any mention of cumulative actions or effects, the proposed rule also
attempts to exclude from reporting requirements any effects that are "remote in time, geographically
remote, or the result of a lengthy causal chain."196 This violates the letter and spirit of NEPA, and
represents a misinterpretation of court precedent. No court has held that any reasonably foreseeable
environmental effect lies outside the scope of agency contemplation for the purposes of NEPA analysis,
and there is no specific distance in time or geography that would excuse an agency from its duty to
consider effects to the "fullest possible extent" within the "rule of reason."

210 Attorneys General of California, Illinois, Maryland, Massachusetts, New Jersey, New York, Oregon, Vermont
and Washington, and secretary of the Pennsylvania Department of Environmental Protection, comments on advance
notice ofproposed rulemaking, Update to the Regulations for Implementing the Procedural Provisions of the
National Environmental Policy Act, 83 Fed. Reg. 28591 (published June 20, 2018).

211 Id.

212 Id.

213 C.F.R. § 1508.1(g)(1).

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To excuse an agency from its statutory duty to reasonably consider geographically or temporally
distant effects would be a capricious disregard of CEQ's statutory authority. As the D.C. Circuit stated
in 1973, "the agency need not foresee the unforeseeable, but by the same token neither can it avoid
drafting an impact statement simply because describing the environmental effects of an alternative to
particular agency action involves some degree of forecasting."214

For example, it could hardly have escaped the notice of Congress that dumping toxins into the
headwaters of a stream could potentially affect the entire length of a watercourse,215 and such obvious
impacts are well within the scope ofNEPA's "detailed statement." Likewise, consideration of the
chronic degradation of the country's air, water and soil, whether by erosion and deforestation, or by the
gradual addition of so-called "forever chemicals,"216 is not beyond an agency called to investigate
potential threats to the world's supply of oxygen,200 among other environmental impacts.

Congress was especially clear on the issue of impacts remote in time: "In order to carry out the
policy set forth in this chapter, it is the continuing responsibility of the Federal Government to use all
practicable means ... to the end that the Nation may— (1) fulfill the responsibilities of each generation
as trustee of the environment for succeeding generations . . . ." An agency can hardly fulfill its
environmental responsibilities to succeeding generations without considering the long-term
consequences of its actions. Today this concept is known as "intergenerational equity,"217 and in 1969,
our leaders were prescient in calling for its consideration. Eliminating it would be a step backward, and
contrary to the clear intent of Congress.

E. The Proposed Rule Conflicts with CEQ's Role Under NEPA Part 1500

For the past 50 years, provisions have been in place that create accountability when agencies
fail to properly consider environmental impacts, including resorting to litigation when needed.

However, the proposed rule seeks to limit agency accountability. For example, allowing agencies to
require the payment of a bond in exchange for a stay would have a chilling effect on community
lawsuits. Similarly, § 1500.3(d) declares "the Council's intention that minor, nonsubstantive errors that
have no effect on agency decision making shall be considered harmless and shall not invalidate an
agency action."202 This statement could be interpreted as placing another burden on complainants not
only to prove that NEPA compliance was inadequate, but that the failure to comply affected agency
decision-making—a nearly impossible burden in such a complex decision-making process. Without the
power to hold agencies accountable for their noncompliance, the public participation function so
central to NEPA would be greatly devalued.

214 Scientists' Inst, for Pub. Info., Inc., 481 F.2d at 1092.

215 See Impacts of Mismanaged Trash, EPA, https://www.epa.gov/trash-free-waters/impacts-mismanaged-trash (last
visited March 3, 2020).

216 See Sydney Evans et al., PFAS Contamination of Drinking Water Far More Prevalent Than Previously
Reported, EWG (Jan. 22, 2020), https://www.ewg.org/research/national-pfas-testing/ (last visited March 3, 2020)
200 H.R. REP. 91-378, at 119 (1969).

217 See J.K. Summers & LM. Smith, The Role of Social and Intergenerational Equity in Making Changes in
Human Weil-Being Sustainable, AMBIO (October 2014), 718,

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4165836/ (last visited March 3, 2020). 202 40 C.F.R. § 1500.3(d).

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F. The Proposed Rule Would Arbitrarily Muddle the Requirement of a Supplemental EIS Part 1502

The proposed rule would establish a new and incoherent standard for supplemental
environmental impact statements. Currently, a supplemental EIS is required if (1) "[t]he agency makes
substantial changes .. . that are relevant to environmental concerns" or (2) "[t]here are significant new
circumstances or information relevant to environmental concerns."218 The proposed rule would add an
exception when "changes to the proposed action or new circumstances or information relating to
environmental concerns are not significant and therefore do not require a supplement." In other words,
the proposed rule would insert an exception for when circumstances that have been determined either
substantial or significant are somehow deemed not significant. It is inherently contradictory that
"significant new circumstances relevant to environmental concerns" (therefore requiring a
supplementary statement) could also be "not significant" (therefore not requiring a supplement).219220221

G. The Proposed Rule Falls Short of Statutory Information Gathering Requirements Part 1502

NEPA requires agencies to take all reasonable measures to report the impact of major actions
significantly affecting the human environment, and this includes an element of information-gathering.
In addition to preparing a "detailed statement" of an action's environmental impact, including
alternatives, NEPA requires an agency to "study, develop, and describe appropriate alternatives to
recommended courses of action in any proposal which involves unresolved conflicts concerning
alternative uses of available resources."205 This requirement is reflected in the current rule's section titled
"Incomplete or unavailable information."206 However, the proposed rule includes language seemingly
nullifying the existing requirement. The proposed § 1502.24 states that agencies "are not required to
undertake new scientific and technical research to inform their analyses."222 Absolving agencies of
responsibility for technical analysis would contradict the language of the Act itself.

H. Allowing Early, Irreversible Commitments of Resources Violates NEPA Part 1506

The proposed rule would specifically allow an agency considering a proposed action for federal
funding to authorize activities including acquisition of land interests and purchase of equipment.223 CEQ
also invited comment on "whether there are circumstances under which an agency may authorize
irreversible and irretrievable commitments of resources."209 Allowing such commitments during the
NEPA process undermines the integrity of the process itself and violates 42 U.S.C. § 4332(C)(v), which

218 Id. § 1502.9(c).

219 Id.

220 U.S.C. § 4332(E).

221 C.F.R. § 1502.22.
222Id. § 1502.24.

223 Id. § 1506.1(b).
209 Id. § 1504.

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requires an agency to disclose "any irreversible and irretrievable commitments of resources which would
be involved in the proposed action should it be implemented" in an environmental impact statement
before embarking on an action within the scope of NEPA.224 "The purpose of an EIS is to apprise
decisionmakers of the disruptive environmental effects that may flow from their decisions at a time
when they "retain a maximum range of options."225226 This bar on irreversible commitments of resources
is important because such a commitment makes it difficult or impossible for an agency to take the
objective "hard look" at environmental effects central to NEPA's procedural elements. It puts the
agency's thumb on the scale of a specific course of action before environmental review has occurred,
and before other agencies, experts and community members are allowed to weigh in, diminishing the
effectiveness and significance of environmental review.

IV. Instead of Limiting Public Participation and Analysis of Cumulative Impacts, CEQ Should
Strengthen NEPA Implementation and Enforcement

The proposed rule changes are arbitrary, capricious, and not in accordance with law. NEPA
regulations do not need to be changed, and the Environmental Justice Commenters call on CEQto
withdraw the rule. As demonstrated above and in the paragraphs that follow, CEQ can "reduce
paperwork and delays, and promote better decisions consistent with the national environmental policy
set forth in section 101 of NEPA"212 without engaging in rulemaking. The current regulations already
provide the CEQ with all the necessary tools it needs to complete these objectives. Instead, the CEQ
should improve compliance and enforcement.

A. CEQ Should Incorporate Its Own and Inter-Agency Best Practices

If its goal is to improve public participation, CEQ should implement existing compilations of best
practices. The Federal Interagency Working Group on Environmental Justice and the NEPA Committee in
2016 developed a list of best practices that included measures to streamline and standardize
implementation of NEPA across agencies.227 They recommend engaging communities of color, low-
income communities, and other interested individuals and communities when: "1) defining the affected
environment; 2) identifying potentially affected communities of color and low-income populations; 3)
assessing potential impacts to communities of color and low-income populations; 4) assessing potential
alternatives; 5) determining whether potential impacts to communities of color and low-income
communities are disproportionately high and adverse . . . ; and 6) developing mitigation and monitoring

224 Conner v. Burford, 848 F.2d 1441, 1446 (9th Cir. 1988) (holding that the sale of an easement without preparing
an EIS violated NEPA).

225 Id.

226 C.F.R. § 1500.

227 Fed'I Interagency Working Grp. on Envt'l Justice & NEPA Comm., supra note 3.

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measures."228 Thus, effective public participation should occur in every step of the process, beginning in
the scoping process.

When doing so, the Working Group recommends to "consider identifying .... concerns such as
any cultural, institutional, geographic, economic, historical, linguistic, or other barriers to achieve
meaningful engagement" with those communities.215 Additionally, the agencies should solicit and
consider input "from each segment of the community of color or low-income community that may
potentially be affected," so it should target particularly affected groups, such as people of color-owned
small businesses, low-income transit riders, subsistence fishers.

B. CEQ Could Expedite the NEPA Process Without Reducing the Overall Level of Review

Cumulative-impact analysis is not only reasonable but also necessary for the full consideration
of significant impacts.216 In this era of advanced computing and information technology—with concerns
about the community environmental health more pressing than ever before217—cumulative-impact
analysis is even more manageable and crucial than it was in the

1970s, especially for environmentally overburdened communities. The CDC has reported that

"residents in mostly minority communities continue to have lower socioeconomic status, greater barriers
to health-care access, and greater risks for, and burden of, disease compared with the general
population living in the same county or state."218 But modern mapping tools and other technology have
made data on cumulative impacts more available than it has ever has been before.219 Consequently,
consideration of that data is more reasonable than ever before. The current rule acknowledges these
"state of the art analytic techniques,"220 and the technology has only progressed.

CEQ has repeatedly found and reiterated that developing and making better use of these data
tools improve the efficiency of NEPA compliance. Rather than lowering the standard of environmental
consideration and threatening NEPA's effectiveness, CEQ should incorporate the results of its own
studies into practice. From 2011 to 2015, CEQ sponsored a set of five pilot projects to establish
recommendations and best practices to streamline the EIS process.221 Based on the results of these
projects, CEQ announced that data-gathering and public participation could be simplified (without being
diminished), consultation coordinated, efficiency, quality and transparency of decision-making
improved, and project time and cost reduced via the following measures:222

1. Agencies should refine and develop their NEPA management and public engagement IT
tools by leveraging existing tools and working collaboratively across the federal
government to ensure the compatibility of IT tools.

228 Id. at 9.
215 Id.

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216 Hanly, 471 F.2d at 83031.

217K. Gebbie et al., Who Will Keep the Public Healthy, Nat'l Acads. Press (2003),
https://www.ncbi.nlm.nih.gov/books/NBK221190/ (last visited Feb. 26, 2020).

218 CDC, CDC Health Disparities and Inequalities Report — United States (2013).

219 See, e.g., NEPAssist, EPA, https://www.epa.gov/nepa/nepassist (last visited Dec. 2, 2019); EJSCREEN:
Environmental Justice Screening and Mapping Tool, EPA, https://www.epa.gov/ejscreen (last visited Dec. 1, 2019);

TOXMAP, NIH, https://toxmap.nlm.nih.gov/toxmap/app/ (last visited Dec. 1, 2019); California Office of Health

Hazard Assessment, CalEnviroScreen, https://oehha.ca.gov/calenviroscreen (last visited March 6, 2020); NCDEQ
Community Mapping System, N.C. Dep't Of Envt'l. Quality,

https://ncdenr.maps.arcgis.com/apps/webappviewer/index.html (last visited Dec. 1, 2019).

220 40 C.F.R. § 1501.8.

221 Memorandum from Michael Boots, CEQ chair, to interested parties and heads of federal agencies, on National
Environmental Policy Act Pilot Projects Report and Recommendations,

https://ceq.doe.gov/docs/ceqreports/CEQ_NEPA_Pilots_Conclusion Recommendations_Jan2015.pdf

(Jan. 26, 2015) (last visited Dec. 2, 2019).222Id.

2. Agencies should have a suite of NEPA IT tools at their disposal and be able to choose
which ones they need to meet their needs, depending on the project and step in the
NEPA review process.

3. Agencies should review the Best Practice Principles for developing EAs and incorporate
them into their NEPA practices.

4. Agencies should provide comments to CEQ on which Best Practice Principles for
Environmental Assessments should be incorporated into CEQ guidance.

5. Agencies should encourage use of EPA's NEPAssist geospatial IT tool by program and
project managers as well as NEPA practitioners.

6. Agencies should ensure their IT tools are compatible to ensure ease of use with
NEPAssist.

7. Agencies should consider developing and using a Statement of Principles in lieu of the
more complex and time-intensive process required to adopt a formal Memorandum of
Understanding when developing cooperating or participating agency agreements with
other Federal, tribal, state, or local governmental entities.

8. Agencies should review the final best practices report for the FRA's Northeast Corridor
Future project when developing a large-scale (temporal and spatial) NEPA review.

9. Agencies should review the final reports for the USFS 4FRI and Fivemile-Bell restoration
projects and use the best practices when developing a large-scale (temporal and spatial)

NEPA review.

10. Agencies should optimize the use of collaborative stakeholder groups for developing and
implementing monitoring for the effects of proposed projects and the effectiveness of
proposed mitigations.

C. CEQ Must Improve the NEPA Process by Ensuring Linguistic Accessibility

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CEQ should take measures consistent with Executive Order 13,166, "Improving Access to
Services for Persons with Limited English Proficiency," which requires federal agencies to identify the
need for language-access services, and to develop and implement systems to provide language access
to persons who are limited English proficient. Early in the scoping process, an agency should analyze
whether there are any segments of the affected communities whose primary language is not English. If
there are, notices and other vital documents should be translated into appropriate languages, and an
interpretation made available for any public meeting.

D. Meaningful Participation Requires More Engagement with Stakeholder Communities and Addressing
Barriers to Participation

A 1997 CEQ study "concluded that creating a true partnership with the community involves
more than holding a hearing and making documents available. Public involvement takes effort—and
time."229 Among other measures, hearings should also be made more accessible.

In reading the more than 12,000 public comments on the Advance Notice of Proposed
Rulemaking, organizations across the board articulated the need for a more modernized notification

process, for both NOI's and Notices of Availability. For instance, the Women's

Mining Coalition ("WMC") commented the "use of the Federal Register to publish NOIs and Notices of
Availability should be modernized to capitalize upon the widespread use of electronic communications
(e.g., email, agency websites, social media, etc.),"230 and the International Association for Public
Participation (IAP2) suggested "that options for public notice referenced in §1506.6(b) be broadened to
allow for the use of new, technological, and innovative communication methods developed since the
regulations were written.231 Many of these methods (such as cellphone and web-based applications)
can be used to reach much wider audiences including low income, minority, and disabled
individuals."232 Webinars, social media and listservs may be effective for some but may exclude others,
so it should not be the only form of communication. The language must also be accessible, there must be
"multiple forms of communication (e.g., written, oral, pictorial) to accommodate varied levels of
reading proficiency, to facilitate meaningful engagement, and to account for limited-English
proficiency."233

E. Venue Selection Should be Appropriate for all Persons

Meaningful public participation in a hearing or in-person meeting requires that the chosen
space must be one that is not intimidating nor inaccessible to interested parties. The parties should be
invited to a familiar place to them and set on equal ground with everyone else; no should have to talk

229 CEQ, supra note 57, at 18.

230 WMC, 2018.

2311AP2, 2018.

232 WMC, 2018; 1AP2, 2018.

233 Id.

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up to a stage for their voices to be heard. Those who come to public hearings should feel that they have
a seat at the table. The location of public hearings should be readily accessible, as EO 12,898 dictates.234
Moreover, meaningful engagement if communities of color and low-income communities requires
outreach.

F. Timing of Events Could be Improved Through Proper Scheduling

Events with a public participatory element should be scheduled at times when people in
potentially affected populations are able to attend. Communities and populations vary, and choosing an
appropriate time requires a basic survey and analysis. Simply scheduling events on weekends is
insufficient, as many individuals, particularly those from low-income populations who work in the
service industry, work extensively on weekends. Weekend events prioritize those who work in
industries in which weekends are observed. In some regions, Sunday may be a particularly poor choice,
as conflicts with church may become an issue.

Moreover, public meetings should begin at a very early stage in the process. "When
[community members] are invited to a formal scoping meeting to discuss a well-developed project
about which they have heard little, they may feel they have been invited too late in the process. In
addition, public 'hearings' at times are seen as parties 'talking past each other,' with very little
listening."229

G. CEQ Should Enhance Technical Assistance Programs for EJ Communities

A community's technical understanding can be enhanced through technical assistance grants and
by disseminating scientific information in language understandable to the general public. Based on the
information gathered, federal agencies experience varying d235egrees of success providing technical
assistance to the affected communities. The degree to which communities of color and low-income
communities can participate in the decision-making process is strongly dependent on their knowledge
of the environmental hazards and the effects of these hazards on their health. Therefore, in addition to
providing more opportunities for data collection and gathering scientific information on the connection
between hazards and health, the information gathered through these efforts must be made accessible
to communities.

Over time, many agencies have provided technical assistance grants for various purposes. For
example, Congress made public involvement in decision-making an important part of the Superfund
process when the program was established by the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) of 1980.230 Congress aimed to ensure that the people whose
lives were affected by abandoned hazardous wastes would have a say in the actions taken to clean up
sites. The role of community members in the Superfund process was further strengthened in the

234 EO 12,898 at 7632 (§ 5-5).
229 CEQ, supra note 57, at 18.

235 U.S.C. §9601.

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Superfund Amendments and Reauthorization Act of 1986 (SARA).236 With SARA, Congress created
EPA's Technical Assistance Grant (TAG) program. TAGs are available at Superfund sites on EPA's
National Priorities List (NPL) or proposed for listing on the NPL, and for which a response action has
begun. Groups, including unincorporated associations, can receive up to $50,000. The grant helps pay
for technical advisors who can do any of the following:

• Review site-related documents from EPA or other agencies.

• Meet with a group and other community members to explain site information.

• Make site visits, when appropriate and necessary, to learn more about site activities.

• Travel to meetings and hearings about the site.

• Evaluate plans for reusing the site after it is cleaned up.

• Interpret and explain health-related information.

• Participate in public meetings.

EPA also has a list of technical assistance groups available for community organizations that
might have difficulty finding assistance.237238

Furthermore, there are additional resources to inform approaches to technical assistance. In
2000, EPA released a Draft Title VI Guidance document which detailed what effective public
participation would look like.233 EPA recommends providing supplemental technical information and
technical assistance to make data more meaningful.239 In 2011, the IWG on Environmental Justice
published the Community-Based Federal Environmental Justice Resource Guide.240 The purpose of the
guide is to assist communities with technical or financial assistance to reduce exposure.241 The EPA also
provided technical assistance for their Environmental Justice Showcase Communities Project.242 The
project aimed to achieve real success in EJ communities by helping design future EJ projects and helping
EPA increase its ability to address local challenges in an efficient way.238 Other agencies that have
provided technical assistance with the NEPA process include the National Oceanic and Atmospheric
Administration (NOAA). NOAA provides technical assistance, as well, for the NEPA requirement that the
agency "[f]ully consider the impacts of NOAA's proposed actions on the quality of the human
environment; including consideration of Executive Order 12,898 addressing Environmental Justice in
NEPA documentation for decision making."243

236 Pub. I. No. 99499.

237 Technical Assistance Grant Program: Fact Sheet, EPA (Oct. 2018),
https://semspub. epa.gov/work/HQ/l 00001770.pdf.

238 C.F.R. § 14207 (2000).

239 Id.

240 Community-Based Federal Environmental Justice Resource Guide, IWG (2011),
https://www.epa.gov/sites/production/files/2015-02/documents/resource-guide.pdf.

241 Id. at 3.

242 Id. at 42.

238 Id.

243 Id. at 26.

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The Bureau of Indian Affairs has a technical assistance grant program to help tribes prepare
NEPA documents.244 The Bureau of Reclamation also provides opportunities for affected Indian tribes to
participate in the NEPA investigation process.245

The Department of Energy (DOE) provides technical assistance and leadership needed to ensure
compliance with NEPA and other environmental review related requirements.246 The DOE states the
purpose of the technical assistance program is to foster sound planning and decision making while
building public trust.247 The DOE's Office of Legacy Management also has an EJ program and hosts a
number of capacity-building activities to help local community groups gain and sustain tools to achieve
EJ for themselves.248 In addition, the Office of Fossil Energy (FE) also offers technical assistance: "[FE] is
committed to Environmental Justice (EJ) efforts that achieve the greatest benefit for all our
stakeholders. FE continues to make consistent, measurable progress in implementing EJ through its
strong National Environmental Protection Act (NEPA) program, while adhering to the highest applicable
standards for environment, safety and health."249

V. Conclusion

For these reasons, the Environmental Justice Commenters strongly object to the weakening of
critical protections proposed in this rulemaking and call on CEQ, rescind the proposed rule and to fulfill
the promise of NEPA by strengthening implementation and enforcement.

Sincerely,

Marianne Engelman Lado
Director
Jerry Thomas
Jon Turner
Clinicians

Environmental Justice Clinic
Vermont Law School
164 Chelsea Street
P.O.Box 96

South Royalton, VT 05068
Mengelman-Lado@vermontlaw.edu

244 DOI, Response to Interrogatory Question 3 7.

245 Id.

246IWG, supra note 82, at 36.

247 Id.

248 Id. at 38.

249Id. at37.

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JerryThomas@vermontlaw.edu
JonTurner@vermontlaw.edu
917-608-2053 (cell)

Kerene Tayloe

Director of Federal Legislative Affairs
WE ACT for Environmental Justice
50 F Street, NW 8th Floor
Washington, DC 20001
kerene@weact.org 212-
961-1000 x323

On behalf of:

Susana Almanza
PODER Austin
Martha Dina Arguello
Physicians for Social Responsibility
Marc Brenman
I DARE LLC*

Scott Edwards
Food & Water Watch
Leslie Fields
Sierra Club
Jeff Gearhart
Ecology Center
Michael Hansen
Gasp

Adrienne L. Hollis

Hollis Environmental Consulting Services, LLC*

Karuna Jaggar
Breast Cancer Action
Eric Jantz

New Mexico Environmental Law Center
Shaina Kasper
Toxics Action Center
Pastor Dr. Charlotte Keys
Jesus People Against Pollution
Hilton Kelley

Community In-Power and Development
Association Inc. (CIDA)

Aaron Mair

Arbor Hill Environmental Justice Corporation

Vincent Martin
Detroit, Michigan
Dr. Mildred McClain
Harambee House
Pamela Miller

Alaska Community Action on Toxics
Vernice Miller-Travis
WE ACT for Environmental Justice*

M. Miaisha Mitchell
Tallahassee Food Network
Naeema Muhammad

North Carolina Environmental Justice Network
Marti Olesen

Buffalo River Watershed Alliance
Juan Parras

Texas Environmental Justice Advocacy Services
(T.E.J.A.S.)

Erich Pica

Friends of the Earth
Varshini Prakash
Sunrise Movement
Michele Roberts

Environmental Justice Health Alliance for
Chemical Policy Reform
Amy van Saun
Center for Food Safety
Maria Savasta-Kennedy
UNC School of Law*

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Cristina Stella

Animal Legal Defense Fund
Rachel Spector

New York Lawyers for the Public Interest
Kaya Allan Sugerman
Center for Environmental Health
Kerene Tayloe

WE ACT for Environmental Justice
Donele Wilkins

Green Door Initiative
Guy Williams

Detroiters Working for Environmental Justice
Sacoby Wilson

University of Maryland-College Park*

Omega & Brenda Wilson
West End Revitalization Association (WERA)
*: Institutional affiliation for identification
purposes only

March 10, 2020

Ms. Mary Neumayr, Chair

Council on Environmental Quality 730 Jackson
Place, N.W.

Washington, D.C. 20503

RE: CEQ-2019-0003

PROPOSED REVISIONS TO REGULATIONS IMPLEMENTING THE
NATIONAL ENVIRONMENTAL POLICY ACT

Dear Chairman Neumayr:

This letter represents the collective comments of 328 organizations and tribal nations,
representing millions of members and supporters, responding to the Council on

Environmental Quality's (CEQ) proposed revisions to regulations implementing the National
Environmental Policy Act (NEPA or the Act). Many of our organizations and members will also be
submitting individual comments.

This proposed revision of CEQ's NEPA regulations is deeply flawed, violates the letter and intent
of NEPA and will not satisfy the objectives of this exercise as articulated in the preamble. It is therefore
arbitrary and capricious and must be withdrawn.

I. INTRODUCTION

NEPA is the lodestar of this country's environmental conscience and actions. In NEPA, Congress
clearly articulated environmental policies and goals for the United States, while acknowledging the
"worldwide and long-range character of environmental problems". 1 Fully implemented, NEPA could
help Americans meet today's dual challenges of climate change and loss of biological diversity. As
Senator Henry Jackson, the primary Senate sponsor of the Act, explained, NEPA "serves a constitutional
function in that people may refer to it for guidance in making decisions where environmental values are
found to be in conflict with other values."2 While full implementation of NEPA has yet to be realized,
NEPA's procedural requirements, as interpreted through CEQ's regulations have fundamentally

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changed the nature of federal decision making for the better by providing thorough analysis and public
involvement.

1 42 U.S.C. § 4332(F).

2 Statement in National Environmental Policy: Hearing before the Committee on Interior and Insular
Affairs, United States Senate, 91st Congress, 1st Session, April 16, 1969, Appendix 2, p. 206, quoted in
Caldwell, Lynton Keith, The National Environmental Policy Act: An Agenda for the Future, p. xvi,
Indiana University Press (1998).

NEPA currently requires "that environmental information is available to public officials and
citizens before decisions are made and before actions are taken."3 Through NEPA, communities have
been able to learn ahead of time when their government is proposing to permit the expansion of an
airport, a new management plan on a nearby national forest, or a new deepwater port for export of
coal. Through NEPA, Americans living, working and recreating near or on public lands have had an
opportunity to consider proposed changes to land management plans and actions such as proposed
timber harvest, oil and gas leasing and road construction, and to influence those decisions.

Marginalized communities have had an opportunity to have their voices heard before construction of a
proposed highway that might divide their community.

Receiving public comment is only part of the purpose of the NEPA process. Those comments
must be evaluated and considered by the agencies when they are making decisions. Through
compliance with the current regulations, federal agencies have learned that they are expected to stop,
look and listen to the taxpayers they are serving before committing resources. Through public
comments and comments from other agencies, lead agencies have learned of better alternatives to
achieve a particular goal while minimizing harm to communities, public land and the environment.
Federal agencies have learned important new information about an area that an agency manages or a
community in which it operates. In short, while implementation has been far from perfect, Americans
as a whole have benefitted from the important information and public involvement achieved through
NEPA's implementation.

In a response to CEQ's Advance Notice of Proposed Rulemaking4 (ANPRM), many of the signatories to
this letter urged that, "CEQ invest its modest resources and most importantly, its leadership position, in
a systematic initiative to enforce [the regulations]." We pointed out that, "[c]hanges to the regulations
will not result in improvements unless federal agencies have the organizational structure and resources
that facilitate their implementation." We explained, painstakingly, that the current regulations hold
the key to almost all of the efficiency issues suggested by the ANPRM and that, "[w]hat is lacking is the
capacity and will to fully implement the regulations." 5 Unfortunately, that wellgrounded advice was
fundamentally disregarded. While we welcome the long-overdue recognition of tribal nations
throughout the regulations, the extreme reversals of long-held CEQ positions would serve neither
tribes nor the public well but instead would have a significantly detrimental and adverse impact on
decisionmaking.

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We incorporate by reference the response to the ANPRM6 to this letter (Attachment A) and ask that
CEQ respond to each point raised in that letter along with responses to this Notice of Proposed
Rulemaking (NPRM).

3 40 C.F.R. § 1500.1(b).

4 83 Fed. Register 28591 (June 20, 2018).

5 Letter from 341 public interest organizations to Mary Neumayr, Council on Environmental Quality, in
response to Docket No. CEQ-2018-0001, August 20, 2018.

6 Id.

The proposed revisions fundamentally mischaracterize and attempt to rewrite the purpose of
NEPA. They seek to substantially reduce both the breadth and depth of NEPA analysis as well as
eviscerate available remedies for inadequate compliance. They try to reduce or eliminate the
applicability of NEPA to a wide range of actions. They dismiss conflict of interest concerns along with
the public's interest in being able to enforce the law. Instead of the public's interest in sound
decisionmaking being central to the NEPA process, they elevate the profit-driven objectives of private
corporations.

Given the emphasis in the ANPRM on efficiency, it is particularly startling to see that the
proposal contains several stunning reversals of long-held CEQ positions and decades of practice and
case law. While agencies can change their position, it must show awareness of the change, give a
reasoned explanation for it, and explain how the change is permissible under the relevant statute. In
this instance, some changes are not even acknowledged in CEQ's preamble. For example, there is no
acknowledgement that the proposed revision would eliminate all systematic public involvement in the
referral process.250 There is also no acknowledgement that CEQ is eliminating the rule that EISs must
be available for 15 days prior to a hearing on the EIS.251 Other changes are acknowledged but brushed
off with a broad reference to providing "more flexibility"252 or stating that provisions in the current
regulations are "unnecessarily limiting"253254255and are devoid of a reasoned explanation and supporting
rationale. For example, CEQ states in the preamble that NEPA does not contain the terms "direct
indirect, or cumulative effects"11 that it proposes to simplify the definition by simply eliminating those

250 Proposed revisions to §1504, 85 Fed. Reg. at 1704.

251 Proposed § 1506.6(f), 85 Fed. Reg. at 111705.

232 Proposed 1506.5(c), 85 Fed. Reg. at 1705 (giving agencies more flexibility by allowing applicants to prepare
EISs).

253 Preamble to Proposed § 1502.22(a), 85 Fed. Reg. at 1703 (proposing to delete the word "always" from the
obligation to obtain information relevant to reasonably foreseeable significant adverse impacts in certain
circumstances).

254 Fed. Reg. at 1707. This statement about the lack of the precise terms being in the statute is reminiscent of the
Department of Labor's partial reliance on the lack of the term "service advisor " as a reason for reversing a long-
standing position under the Fair Labor Standards Act. Encino Motorcars, LLC v. Navarro, 136 S. Ct. 217, 2127
(2016).

255 Fed. Reg. at 1707-08.

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terms and eliminate the requirement to analyze cumulative effects all together, referencing excessively
lengthy documentation and irrelevant or inconsequential information.12 But CEQ never explains the
basis on which they reached these conclusions, let alone acknowledge the fundamental importance of
cumulative effects in meeting NEPA's mandate. CEQ cannot cure these deficiencies by providing a new
rationale in a preamble to final regulations.

Other proposed revisions delete long-standing criteria that are replaced with the vaguest of
direction - for example, the proposed deletion of the definition of "significantly" at 40 C.F.R. § 1508.27
and the substitution of vague, ambiguous language amenable to numerous interpretations. Neither of
these tactics will result in efficiency; rather, they will result in further delays and inefficiencies and in a
substantial amount of litigation.

The proposed revisions not only fail to satisfy the effectiveness objectives set forth 256by CEQ
but also violate the Congressionally mandated purpose of NEPA of, among other goals, fulfilling the
responsibilities of each generation as trustee of the environment for succeeding generations.13

Today, our country and our world face some of the most significant challenges to life on earth
that we have encountered in recorded history. The science is clear that human caused activity is
inducing both major changes in climate and in the extinction of flora and fauna. A plethora of
authoritative studies and reports tell us that we have a rapidly closing window of time in which we can
possibly prevent or slow continued warming that will harm humans' existence on earth for centuries as
well as jeopardize the continued existence of about one million animal and plant species.257 As the
United States Global Change Research Program stated,

The last few years have also seen record-breaking, climate-related weather extremes, the
three warmest years on record for the globe, and continued decline in arctic sea ice. These
trends are expected to continue in the future over climate (multi-decadal) timescales.
Significant advances have also been made in our understanding of extreme weather events and
how they relate to increasing global temperatures and associated climate changes. Since 1980,
the cost of extreme events for the United States has exceeded $1.1 trillion; therefore, better
understanding of the frequency and severity of these events in the context of a changing
climate is warranted.258

Climate change poses significant national security and economic risks to the United
States. As the Department of Defense stated in 2019, "The effects of a changing climate are a national
security issue with potential impacts to Department of Defense missions, operational plans, and

256 U.S.C. § 4331(b)(1).

257 "Global Assessment Report on Biodiversity and Ecosystem Services", Intergovernmental Science-Policy
Platform on Biodiversity and Ecosystem Services, 2019; "Global Warming of 1.5°C, Intergovernmental Panel on
Climate Change, 2018, available at https://www. ivcc. ch/srl 5/.

258 Special Report: Fourth National Climate Science Assessment, Vol. 1, U.S. Global Change Research Program,
Washington, D. C. pp. 12-34 (2017), available at https://www.ipcc. ch/srl5/download/.

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installations." The report identifies climate-related events such as flooding, drought, desertification
and wildfires on 79 military installations within the next twenty years.259 In addition, the Executive Vice
President of the New York Federal Reserve Bank recently stated that, "Climate change has significant
consequences for the US economy and financial sector through slowing productivity growth, asset
revaluations and sectorial reallocations of business activity."260

This nation's minority and low-income communities 261 and Native American tribes19
experience and will continue to experience disproportionately severe effects of climate change. As the
most recent climate change assessment for the United States says,

"People who are already vulnerable, including lower-income and other marginalized communities, have
lower capacity to prepare for and cope with extreme weather and climate-related events and are
expected to experience greater impacts."262 And the same study finds that:

The health risks of climate change are expected to compound existing health issues in Native
American and Alaska Native communities, in part due to the loss of traditional foods and
practices, the mental stress from permanent community displacement, increased injuries from
lack of permafrost, storm damage and flooding, smoke inhalation, damage to water and
sanitation systems, decreased food security, and new infectious diseases.263

Our national parks are particularly impacted by climate change, warming twice as fast as the
rest of the country on average, given their geographic distribution in the U.S.22 Moreover, many parks
contain unique geological and ecological features—e.g., high mountains and arid deserts—that are
particularly vulnerable to changes in the climate. For instance, Cape Hatteras National Seashore is
eroding into the sea from rising tides; Rocky Mountain National Park is experiencing record wildfires,
scaring the landscape and devastating nearby communities and local economies; and namesake
features at Glacier and Saguaro National Parks are disappearing from loss of snow and ice and other
changes to the landscape resulting from warming temperatures. The changes within National Park

239 Report on Effects of a Changing Climate to the Department of Defense, Office of the Under
Secretary of Defense for Acquisition and Sustainment, January 2019, available at
https://media.de fense.sov/2019/Jan/29/2002084200/-l/-l/l/CLIMATE-CHANGE-REPQRT2019.PDF.

260 "Climate events have cost the US economy more than $500 billion over the last 5years, Fed official says",
https://markets.businessinsider.com/news/stocks/climate-chanse-impact-oneconomv-has-cost-500-billion-fed-2Q19-
11-1028675379.

261 "A Roadmap to an Equitable Low-Carbon Future: Four Pillars for a Just Transition ", the Climate Equity
Network, April 2019, available at:

https://dornsife.usc.edu/assets/sites/242/docs/JUST TRANSITION Report FINAL 12-19.pdf19
http://www.ncai.ors/policv-issues/land-natural-resources/climate-chanse.

262 Fourth National Climate Change Assessment, Vol. II, Summary Findings, available at:
https://nca2018. slobalchanse. gov/.

263 Id., chpt. 14. See also, Climate Change Forcing Some Alaskan Villages to Relocate, Insurance
Journal, June 20, 2019, available at

https://www.insuranceiournal.com/news/west/2019/06/20/53000Q.htm. 22 "Disproportionate
Magnitude of Climate Change in United States National Parks ", Environmental Research Letters,

Volume 13, Number 10, available at: https://iopscience, iop. ors/article/10.1088/1748-9326/aade09.

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landscapes put wildlife and cultural and natural resources in jeopardy, as well as increase risks to
visitors. These treasured places must be protected and preserved, not only because they tell the
stories of our nation's diverse history and provide unforgettable experiences, but also because they are
important to the health of the ecosystems of which they are a part, protecting the air we breathe and
the water we drink. Nor are these impacts limited to our parks - they apply equally to our national
forests, national wildlife refuges, national monuments, and other public lands and resources. In short,
now is precisely the wrong time to limit the way our nation considers climate impacts through the
proposed evisceration of the NEPA process.

II. CEQ'S PROCESS FOR PROPOSING REVISIONS TO ITS

REGULATIONS HAS BEEN GROSSLY INADEQUATE AND INAPPROPRIATE. CEQ IS
ALSO IN VIOLATION OF ITS OWN NEPA REGULATIONS AND THE ENDANGERED
SPECIES ACT.

A. The Public Process Has Been Grossly Inadequate.

CEQ has demonstrated its unfortunate and newfound contempt for both the NEPA process and
the public by its design of a deeply inadequate public process for this proposed revision. It has made
no effort whatsoever to approach this effort in a thoughtful, collaborative manner or even in a way
designed to allow the most affected individuals to engage in it.

Despite CEQ's repeated public statements that it has engaged in significant public outreach, in
fact, it has simply conducted the minimal processes. If there has been significant outreach, it has not
been to the public. In no respect has this process mirrored the thoughtful process in which CEQ
engaged when it developed the current regulations. As Nicholas Yost, former CEQ general counsel and
the primary author of the current regulations has explained, that process involved not just soliciting
ideas, but engaging in an iterative dialogue with a number of stakeholders with the goal of reaching
common ground on a path forward. At that time, CEQ sought out complaints and concerns and
discussed those concerns directly with the affected parties. As Mr. Yost observed, "The resulting
public response to the final regulations was everything we had hoped for and worked to achieve," with
support for the regulations offered by both the public interest and the business community.264

The short ANPRM process was not a well-designed outreach effort but merely a list of broad
and often repetitive questions, much more friendly to NEPA specialists than the public. The breadth of
the questions provided no real focus what CEQ's intentions really were in terms of its proposed
rulemaking.

The process for the proposed revisions is considerably worse. We have identified over 80
issues that warrant comment in the proposed regulations, including the 23 extra questions CEQ poses
in the NPRM. Indeed, we continue to find new issues and are not at all certain that all of the
problematic text has yet been identified and analyzed. Most of the issues raised involve complex legal

264 https://www.eli.ors/sites/default/files/docs/vost forum 2019 nov-dec.vdf.

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issues and decades of case law; some involve other areas of the law entirely, such as tort law and
Constitutional law. CEQtook 18 months to develop this proposal behind closed doors. Any expectation
that the public can comprehensively respond to this proposal in 60 days is appallingly wrong at best,
and highly cynical at worst.

The public meeting arrangements were equally and dramatically inadequate. Since the
proposal has national implications, public meetings should have been held in a number of different
regions around the country and the failure to do so seriously eroded the ability of many who could not
go to Denver or Washington, D.C. (and even if they had, might not have been able to secure a speaking
slot) to directly address the agency. CEQ provided only a short, 90-minute notice of sign-up times on
the website, during the daytime, thus making it almost impossible for anyone working and/or not at
their computers during that time period to sign up. This is especially true given that all slots were
signed up within 15 minutes. Indeed, the whole idea of holding meetings in restricted space with the
need to get "tickets" to participate twists the ideals of democracy that NEPA represents into something
more akin to a lottery.

All of us have been to dozens of NEPA scoping sessions and public hearings held in large
auditoriums associated with various schools or community centers. CEQ's choice of venue, especially in
Denver, speaks loudly to its disinterest in hearing from the public.

Finally, CEQ's refusal to respond to the requests of thousands of citizens and 167 Members of Congress
for an extension of this comment period until five days before the end of the comment period is
unfathomable and the response, when it finally came, extremely disappointing. By not providing a
TIMELY response, CEQ breaks the bounds of rudimentary civility, let alone accountability and
responsiveness to the public it was intended to serve.

B. CEQ Has Violated Its Own Regulations for this Proposed Revision and Must Prepare an
Environmental Impact Statement (EIS) on this Proposal.

As CEQ noted in its preamble, it is disregarding its own past practices in failing to prepare NEPA
analysis on these proposed revisions.265 More bluntly, for the first time, it is violating its own
regulations.266267 CEQ's definition of "major federal action" specifically identifies proposed regulations

265 Council on Environmental Quality, National Environmental Policy Act, Incomplete or

Unavailable Information, Final Rule, 51 Fed. Reg. 15618, 15619 (April 25, 1986); Council on Environmental
Quality, National Environmental Policy Act, Implementation of Procedural Provisions; Final Regulations, 43 Fed.
Reg. 55978, 55989 (November 29, 1978).

266 "CEQ, itself, of course, under established principles found in the Administrative Procedure Act, is required to
adhere to its own regulations". Wingfield v. Office of Management and Budget, 7 E.L.R. 20362 (D.D.C. 1977). In
that case, the Court found that CEQ was not the cause of the plaintiffs alleged injury. However, in this situation,
all the action is CEQ's and CEQ's alone. 26 40 C.F.R. §1508.18(a) and (b)(1).

267 C.F.R. § 1502.5(d); proposed 1502.5(d).

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and interpretations adopted pursuant to the Administrative Procedures Act. This proposed, massive
revision, which would significantly alter how

NEPA is implemented, clearly falls within the current definition as a major federal action.26 The current
regulations and the proposed regulations also state that in the context of informal rulemaking, the
draft EIS shall normally accompany the proposed rule.27 Thus,

CEQ should have issued a draft EIS on January 10, 2020, when it published this proposal.268 269CEQ
states that it need not comply with NEPA because the proposed rule would not authorize any activity or
commit resources to a project that may affect the environment. Courts have established that an
agency's interpretation of a statute can be subject to NEPA review when that interpretation can lead to
subsequent, significant effects on the environment. For example, in both 1987 and 1997, the Office of
Surface Mining Reclamation and Enforcement prepared an EIS analyzing several alternative ways of
interpreting Valid Existing Rights for coal mining.29 Similarly, attempts to use categorical exclusions to
address regulations have been rejected. The Forest Service's attempt to use its categorical exclusion
for rules and regulations to avoid preparing a EA or EIS on its nation-wide forest planning regulations
was unsuccessful.270271 Among other changes, the 2005 planning regulations included a significantly
different approach in regards to NEPA's applicability to forest plans, arguing that EISs were not
required for plans that did not authorize site specific actions. The Court found that the planning
regulations did not come within the scope of the CE, not just because it was a nationwide rule, but
because "the USDA appears to have charted a new path and adopted a new policy approach regarding
programmatic changes to environmental regulations."31 The Court stated that the issue was not just
whether the action would cause significant impact but '"whether the path taken to reach the
conclusion was the right one in light of NEPA's procedural requirements'"272 The Court also noted that
"No Ninth Circuit case involving invocation of a CE, that was upheld on appeal, involved broad, far-
reaching programmatic actions such as the 2005 Rule."33

Here, CEQ has clearly not taken the right path. These revisions will change the environmental impact
assessment process for the entire executive branch of government, covering millions of federal actions.
The scope and impact of the Forest Service's planning regulations, while very significant, pale beside
the impact of CEQ's regulations. The proposed regulations, clearly under the sole control and fully the
responsibility of CEQ, a federal agency, will have a very significant effect on the quality of the human

268 While we strongly believe that the impacts from this rulemaking rise well above the threshold for significance, as
CEQ knows, it's own regulations require, at a minimum, preparation of an EA for a proposed action that is not
normally categorically excluded. 40 C.F.R. § 1501.4(b).

269 Fed. Reg. 20138 (April 25, 1997) 52 Fed. Reg. 2421 (January 22, 1987).

270 Citizens for Better Forestry v. U.S. Dept.of Agriculture, 481 F. Supp. 2d 1059 (N.D. Cal. 2007). See also,

Natural Resources Defense Council v. Duvall, 777 F. Supp. 1533 (E.D. Ca. 1991) (Bureau of Reclamation was
required to prepare an EIS on its proposed regulations setting the price of water utilized from its irrigation
infrastructure.) See also, Cal. Ex rel. Lockyer v. U.S. Dep't. of Agriculture, 459 F. Supp. 2d 874, 1014 (N.D. Cal.
2006), affirmed, 575 F.3d 999 (9th

Cir. 2009) (USDA's reliance on categorical exclusion for repeal of roadless rule and promulgation of new state
petitions rule for roadless area was improperly and unreasonably categorically excluded as merely a procedural
rule).

271 F. Supp. 2d at 36.

272 Id. at 38. 33 Id. at
39.

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environment. We attach two set of examples that identify just a few of the differences between the
current regulations and the proposed regulations in particular circumstances and demonstrate how
these changes would affect birds273 and the ocean environment.35

C. CEO's Proposed Revision Triggers the Need for Consultation under Section 7 of the
Endangered Species Act

Section 7 of the Endangered Species Act (ESA) requires each agency to engage in consultation
with the U.S. Fish and Wildlife Service (FWS) and/or the National Marine Fisheries Service (NMFS)
(collectively, the Services) to "insure that any action authorized, funded, or carried out by such
agency...is not likely to jeopardize the continued existence of any endangered species or threatened
species or result in the adverse modification of habitat of such species... determined...to be critical..."36

As the Supreme Court has made clear, a Section 7 Consultation is required for each
discretionary agency action that "may affect listed species or critical habitat."37 Agency "action" is
broadly defined in the ESA's implementing regulations to include "(a) actions intended to conserve
listed species or their habitat; (b) the promulgation of regulations; (c) the granting of licenses, contracts,
leases, easements, rights-of-way, permits, or grants-inaid; or (d) actions directly or indirectly causing
modifications to the land, water, or air."38

The trigger for consultation is very low.39 The "may affect" standard broadly includes "any possible
effect, whether beneficial, benign, adverse or of an undetermined character."40 Even if the Services
and action agency ultimately conclude that an action is not likely to adversely affect listed species, any
possible effect riggers the consultation requirement.41 Only if an agency action truly has "no effect" on
listed species, and the action agency makes such a finding, is the consultation requirement waived. 42
The Services' regulations clearly anticipate the use of "programmatic" consultations on federal,
nationwide rulemakings that impact listed species that may affect listed species.43

Since the decision to completely re-write the NEPA regulations clearly represents an agency
action of the kind that falls within the scope of section 7, the only question is whether the proposed
changes "may affect" endangered species or their designated critical habitats, and therefore require
consultations. The clearest demonstration as to how the regulations may affect listed species is the
proposed change that allows agencies to ignore cumulative impacts. By allowing all federal agencies to
ignore cumulative impacts, environmental impacts that occur downstream, downwind or otherwise
outside the action areas of an agency's proposed action will never be evaluated.

For example, the cumulative impacts of degraded water quality will harm listed species — such
as salmon, steelhead and bull trout — in downstream waters through higher

36 16 U.S.C. § 1536(a)(2).

273 Attachment B, "Impacts to Birds of Proposed Changes to NEPA. " 35 Attachment
C, "Ocean Impacts of Proposed Changes to NEPA

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37 See Ass 'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007); 50 C.F.R. § 402.14.38 50
C.F.R. § 402.02 (emphasis added).

39 5 0 C.F.R. § 402.14(a).

40 51 Fed. Reg. 19,926 (Jun. 3, 1986).

41 51 Fed. Reg. 19,926 (June 3, 1986)). See Karuk Tribe v. Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1027
(9th Cir. 2012) ("[Ajctions that have any chance of affecting listed species or critical habitat—even if
it is later determined that the actions are 'not likely' to do so—require at least some consultation
under the ESA.")

42 Fuel & PetrochemicalMfrs. v. EPA, 937 F.3d 559, 598 (D.C. Cir. 2019).

43 See 50 C.F.R. § 402.02 (defining "action"); Id. (defining "programmatic consultation").

pollution levels. Similarly, the failure to assess the cumulative effects of energy development projects
on climate change will result in very significant impacts to all listed species. But because the NEPA
regulations will allow federal agencies to ignore cumulative pollution impacts, these harms will never
be assessed. And these impacts will not be consulted upon because the harm will occur beyond the
scope of the NEPA assessment.

Under the joint regulations implementing the ESA, if an impact on a listed species may occur, then the
EPA must complete consultations with the Services.274 If EPA elects to first complete an informal
consultation, it must first determine whether its action is "not likely to adversely affect" (NLAA) a listed
species or is "likely to adversely affect" (LAA) a listed species.275 The Services define "NLAA"
determination to encompass those situations where effects on listed species are expected to be
"discountable, insignificant, or completely beneficial."276 Discountable effects are very rare, and
limited to situations where it is not possible to "meaningfully measure, detect, or evaluate" harmful
impacts.277 Any harm or take of an individual member of a listed species crosses the LAA threshold and
requires formal consultations with the Services.278

During a programmatic formal consultation process, the Services would assess the
environmental baseline, potential cumulative effects to the species, and determine if the CEQ's
regulatory changes would jeopardize any listed species or action jeopardizes the continued existence
of each species impacted by the agency action.49 CEQ would be required to implement Reasonable and
Prudent Measures for species that are not jeopardized by the rule change, and implement Reasonable
and Prudent Alternatives for species that are jeopardized (or equally protective alternative measures).

Additionally, the proposed regulatory changes would gut the sole program that CEQ oversees
to protect species listed under the ESA, replacing that program with an insignificant measure, in

274 U.S. Fish and Wildlife Service and National Marine Fisheries Service. 1998. Endangered
Species Consultation Handbook: Procedures for Conducting Consultation and Conference
Activities Under Section 7 of the Endangered Species Act (hereafter CONSULTATION HANDBOOK).

275 Id.

276 Id.

277 Id.

278 Id. 49 Id.

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violation of ESA section 7(a)(1). The proposed rule changes would gut the sole program that CEQ
provides to conserve species listed under the

ESA, replacing that program with an insignificant measure, in violation of ESA section

7(a)(1). "[Sjection 7(a)(1) imposes a specific obligation upon all federal agencies to carry out programs
to conserve each endangered and threatened species."279 "Total inaction is not allowed."280 "[W]hile
agencies might have discretion in selecting a particular program to conserve...they must in fact carry
out a program to conserve, and not an 'insignificant' measure that does not, or is not reasonably likely
to, conserve endangered or threatened species. To hold otherwise would turn the modest command of
section 7(a)(1) into no command at all by allowing agencies to satisfy their obligations with what
amounts to total inaction."52 "Conservation" means to use all necessary methods and procedures to
bring any listed species to the point at which ESA protections are no longer necessary.53 An agency
cannot strip away the sole existing conservation measure it provides for listed species without violating
the duty to conserve imposed by section 7(a)(1).54

CEQ's current NEPA regulations provide benefits that promote the conservation of listed
species by requiring an assessment of cumulative impacts that includes consideration of the cumulative
impacts of future federal actions, unlike the regulations implementing the ESA itself, which limit the
analysis to "those effects of future State or private activities, not involving Federal activities[.]"55.
Further, the existing CEQ NEPA regulations require the assessment of impacts that do not necessarily
cause jeopardy in violation of the ESA, but nonetheless may be significant. The CEQ's proposed
regulatory changes would strip away those benefits by barring the assessment of cumulative impacts
entirely and otherwise weakening the analysis of impacts that do not amount to violations of other
federal laws, making the remaining consideration of impacts merely an "insignificant measure" that
cannot satisfy the section 7(a)(1) duty. In sum, the proposed NEPA regulation revisions take away the
additive value that NEPA analysis provides to informing decisions above and beyond the analysis that
would occur in the course of an ESA section 7(a)(2) consultation, and do not provide any substitute for
those stripped benefits.

D. Proposed § 1506.13 - Effective Date.

CEQ proposes to give agencies the discretion to apply the revised regulations to activities and
environmental documents begun before the effective date of the final rule.56 Given the emphasis in the
proposal on efficiency and clarity, this proposed change is seriously counterproductive. This step would
allow for agencies to change course in midstream. Under this proposed approach, an agency could
decide to switch the regulatory approach after the public comment period has ended, creating
confusion and wasting work already done.

279 Fla. Key Deer v. Paulison, 522 F. 3d 1133, 1146 (11th Cir. 2008) (citing Sierra Club v.
Glickman, 156F.3d 606, 616 (5th Cir. 1998)).

280Id. (citing Glickman, 156F.3d at 617-18; Nat'l Wildlife Fed'n, 332 F. Supp. 2d 170, 187 (D.
D.C. 2004) (section 7(a)(1) confers discretion, but that "discretion is not so broad as to excuse

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total inaction"); Defenders of Wildlife v. Sec V, U.S. Dep't of the Interior, 354 F. Supp. 2d 1156, 1174
(D. Or. 2005) ("compliance is not committed to agency discretion by law")).52 Fla. Key Deer v.
Paulison, 522 F.3d at 1147.

5316 U.S.C. § 1532.

54 Cf Ctr. for Biological Diversity v. Vilsack, 276 F. Supp. 3d 1015, 1032 (D. Nev. 2017), amended, No.
2:13-CV-1785-RFB-GWF, 2018 WL 3059913 (D. Nev. June 19,

2018j (terminating conservation program without providing any substitute measures to address
adverse impact violated affirmative 7(a)(1) duty to conserve).

55 5 0 C.F.R. §402.02.

56 85 Fed. Reg. 1684, 1706 (Jan. 10, 2020), proposed 40 C.F.R. § 1506.13.

Here are just some of the EISs that could be subject to this sudden switch in rules:

EISs for a number of national forests in the process of forest plan revision as required by
the National Forest Management Act (NFMA). The forests are in various phases of the
revision effort, and a number are about to release for public comment/administrative
review the draft environmental impact statement or the final environmental impact
statement and proposed Record of Decision. These national forests include: Custer-
Gallatin, Helena-Lewis & Clark, Grand MesaUncompahgre-Gunnison, Carson, Cibola,
Gila, Santa Fe, Sequoia, and Sierra National Forests.

The EIS for the Draft North Cascades Grizzly Bear Restoration Plan57

The EIS for the Columbia River System Operations58

The EIS for the SPOT Terminals LLC, Deepwater Port License
Application, Texas.59

A switch in the rules mid-stream would negate the public involvement purpose of NEPA and
create massive confusion. Any such new regulations should apply only to NEPA processes begun after
publication of any final rule in the Federal Register.

III. THE PROPOSED REVISIONS ARE FUNDAMENTALLY

INCONSISTENT WITH THE PURPOSE OF NEPA AND CONGRESS' CLEAR
DIRECTION

CEQ's proposed revisions wrongfully mischaracterize the very purpose of NEPA and CEQ's
implementing regulations. They do so by turning today's substantively robust process with a clear
purpose and linkage to NEPA's policies into a paperwork "check the box" exercise. The current
regulations make it clear that the President, the executive branch agencies and the courts "share
responsibility for enforcing the Act so as to achieve the substantive requirements of section 101."60

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The current regulations remind all branches of government and the public of the statutory duty to
"interpret and administer the policies, regulations, and public laws of the United States in accordance
with the policies set forth in the Act and in these regulations."61 Their overriding focus is on utilizing a
common

57 Draft EIS available at

https://parkplanning. nps.gov/docu ment.cfm?parklD=327&proiectlD=44144&documentlD=7702

Notice of availability of draft EIS available at: https://www.govinfo.gov/content/pkg/FR2020-Q2-
28/pdf/2020-04107.pdf.

59 Notice of availability of draft EIS available at: https://www.govinfo.gov/content/pkg/FR2020-Q2-
07/pdf/2020-02452.pdf.

60 85 Fed. Reg. 1684, at 1706; 40 C.F.R. § 1500.1(a).

61 40 C.F.R. § 1500.2(a); 42 U.S.C. § 4332(1).

sense and public281-friendly process as an "action-forcing" mechanism for achieving the goals of
NEPA.62

In contrast, the proposed revisions, beginning with the statement that NEPA is a procedural statute,282
fundamentally mischaracterize NEPA and strip the process of its true purpose. Despite a partial
repetition of the current regulation's admonition that NEPA's purpose is to provide for informed
decision making and to foster excellent action,283 a number of key changes make clear that the
proposed regulations would dramatically undermine these critical goals. Such an intent runs
throughout the proposed revisions but the proposed changes below particularly highlight this
diminished, crabbed approach:

A. Proposed § 1500.1 - Purpose and Policy.

This section begins by characterizing NEPA as merely procedural and states that the "purpose
and function of NEPA is satisfied if Federal agencies have considered relevant environmental
information and the public has been informed regarding the decision making process."284285 In fact,
going through the process in and of itself does not satisfy the purpose and function of NEPA as the
current Section 1500.1 makes clear. Rather, the purpose and function of the process is reflected in
decisionmaking informed by the NEPA process. If the process is completed only by virtue of a
paperwork exercise, then the federal agency has not considered the information "before decisions are
made and before actions are taken" as currently required.66

281 C.F.R. § 1500.1(a).

282 Proposed C.F.R. § 1500.1 (a).

283 Id.

284 Id.

285 C.F.R. § 1500.1(b).

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Further, the proposed articulation of the "purpose and function of NEPA" would recast the role
of the public from its current iterative form to a more passive role of merely being informed; compare
"Accurate scientific analysis, expert agency comments and public scrutiny are essential to implementing
NEPA"286 with "The purpose and function of NEPA is satisfied if Federal agencies have considered
relevant environmental information and the public has been informed regarding the decision making
process."287

Both changes are a retrenchment from the current regulations and should be abandoned.

B. Section 40 C.F.R. § 1500.2 - Policy.

CEQ proposes to eliminate this section, which directs agencies to comply with various
requirements of NEPA "to the fullest extent possible", from the regulations entirely.

Section 102(2) of NEPA directs agencies to interpret and administer the policies, regulations and
public laws of the United States in accordance with NEPA's policies "to the fullest extent
possible".69 In their deliberations on this provision of NEPA, Congress made it clear that:

... It is the intent of the conferees that the provision "the fullest extent possible" shall
not be used by any Federal agency as a means of avoiding compliance with the
directives set out in Section 102. Rather, the language in section 102 is intended to
assure that all agencies of the Federal Government shall comply with the directives set
out in said section "to the fullest extent possible" under statutory authorizations and
that no agency shall utilize an excessively narrow construction of its existing statutory
authorizations to avoid compliance.70

CEQ's proposal to drop this section reinforces its inexplicable intention to define NEPA much more
narrowly than the plain statutory language and Congressional require. Nothing in the preamble
addresses the reason for doing this other than simplifying and eliminating redundancy and repetition,
but the preamble never explains how dropping part of the law is justifiable simplification nor does it
point the readers to provisions which make the current provision redundant or repetitious.71 Section
1500.2 should be restored in full to the regulations.

C. Proposed § 1500.3. "Mandate" and §1507.3(a) - Agency NEPA Procedures (retitled from "Agency
Compliance").

This section purports to forbid agencies from imposing additional procedures or requirements
beyond those set forth in the CEQ regulations "except as otherwise provided by law or for agency
efficiency."72 Of course, CEQ cannot override statutory direction and thus we believe agencies are free

286 Id.

287 Proposed 40 C.F.R. § 1500.1(a).

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to implement whatever procedures or requirements they believe will, in fact, implement NEPA "to the
fullest extent possible."73

However, CEQ's intent is clear even though the language is ambiguous. The proposed
regulation is intended to strongly discourage any such efforts by line agency leadership who might
actually want to implement the statute more robustly and comprehensively than outlined in the
proposed regulations. It is appalling that CEQ, charged by Congress with overseeing implementation of
all of NEPA, would characterize its regulations as a ceiling rather than a floor for agency NEPA
implementation. CEQ has no authority to direct agencies to ignore the requirements of the law or to
limit those agencies' discretion. All federal agencies are charged with implementing their own

69 42 U.S.C. §4332.

70 House of Representatives, Conference Report to accompany S. 1075, National Environmental Policy
Act of 1969, Dec. 17, 1969, Report No. 91-765, at 9-10, available at, https://ceq.doe.gov/docs/laws-
regulations/Senate-Report-on-NEPA.pdf.

71 85 Fed. Reg. at 1693.

72 Proposed 40 C.F.R. § 1500.3(a).

73 42 U.S.C. § 4332; 40 C.F.R. § 1500.2.

statutory responsibilities in a manner consistent with NEPA's purposes and directives, whether CEQ's
regulations captures the statute's requirements or not.74 CEQ states in the preamble that this is a
clarifying change, but it presents no argument in the preamble that this proposed regulation and
prohibition is warranted or justified.75 and it should be removed throughout the regulations.

D. Proposed § 1500.6 - Agency Authority.

Similar to the other provisions noted above, the proposed change in this regulation would
narrow the concept of "full compliance with the purposes and provisions of the Act [NEPA]" to
compliance with CEQ's new regulations. The current regulations correctly explain that each agency
must interpret the provisions of NEPA as a supplement to its existing authority and as a mandate to
interpret its policies and mission activities in that light. Again, CEQ demonstrates its intent to strip the
statute down to the bare bones of its own regulations rather than a follow the letter of the law. This
change should be rejected.

E. Proposed § 1502.1 - "Environmental Impact Statement Purpose".

Again reflecting its desire to reduce the NEPA process to paperwork, the proposed regulations
abandon the current regulatory explanation that an EIS is intended to serve as "an action-forcing device
to insure that the policies and goals defined in the Act are infused into the ongoing programs and
actions of the Federal Government."76 Instead, the proposal characterizes the "primary purpose" of an
EIS as ensuring the agencies consider the environmental impacts of their actions in decisionmaking. No
one disputes that agency consideration of environmental impacts is a major purpose of an EIS, but the
question is to what end that consideration is intended to achieve. Once again, the preamble offers no
justification for this proposed change.77 The current regulation should stand.

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F. Proposed § 1502.9 - "Draft. Final and Supplemental EISs".

As the preamble notes, CEQ proposes to substitute the word "practicable" for the term
"possible" throughout the proposed regulations. Both words have an appropriate place in the
regulations. CEQ provides one sentence on this proposed change, merely stating that practicable "is
the more commonly used term in regulation."78 CEQ should not conflate these two words as they have
different definitions and different appropriate application in this context. According to Black's Law
Dictionary, "practicable" is defined to mean "[a]ny idea or project which can be brought to fruition or
reality without any unreasonable demands."79 In contrast, "possible" is defined to mean "[cjapable of
existing or happening; feasible."80 CEQ's proposal disregards this distinction.

74 42 U.S.C. §4332.

75 85 Fed. Reg. at 1706.76 40 C.F.R. § 1502.1.

77 85 Fed. Reg. at 1700.

78 85 Fed. Reg. at 1692.

79 Black's Law Dictionary (11th ed. 2019).

80 Id.

The current regulations use the word "practicable" for certain process requirements; for
example, they require the lead agency to publish a notice of intent "as soon as practicable after its
decision to prepare an EIS".81 However, the proposed regulatory change that states that a draft EIS
"must meet, to the fullest extent practicable, the requirements established for final statements in
section 102(2)(C) of NEPA"82 is directly contrary to the statutory language to comply with the
requirements for the detailed statement now known as an EIS "to the fullest extent possible".83 It must
be revised to conform to the statutory language.

Additionally, we are concerned about proposed §1502.19(b) that directs agencies to prepare a
supplemental draft if a draft EIS "is so inadequate as to preclude meaningful analysis." The current
regulations direct agencies to prepare a revised draft in these circumstances. The preamble does not
explain why the proposed regulation makes this change so we are unable to comment on CEQ's
rationale if it has one. But if a draft EIS is fundamentally inadequate, the entire EIS needs to be revised
and republished. If only one particular section is inadequate, a supplemental draft EIS would be
appropriate.

In all these respects, the current regulation should stand.

G. Proposed § 1504.3 - "Pre-Decisional Referrals to the Council of Proposed Federal Actions
Determined to be Environmentally Unsatisfactory".

We are concerned about an omission in 1504.3(c)(1). The current regulation states that the
agency referring a matter to CEQ should request that "no action be taken to implement the matter
until the Council acts upon the referral." The proposed revision does not include that requirement nor

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any direction to a lead agency to not proceed with the action during the course of the referral except in
the instance of the lead agency requesting an extension of the time to respond at 1504.3(d).

When involved in a referral, CEQ considers the whole of NEPA's policies and goals, not just an
agency's compliance with procedural requirements. Thus, CEQ's recommendations have often dealt
with whether a proposed action should proceed at all,84 or if it does, how it should proceed.85
Obviously, for the process to work, the proposed

81 40 C.F.R. § 1501.7.

82 40 C.F.R. § 1502.9(b).

83 42 U.S.C. §4332.

84 For example, in late 1981, CEQ recommended that the proposed Dickey-Lincoln School Lakes Project
that would have been built on the St. John River be deauthorized. President Reagan subsequently
signed a bill deauthorizing the Dickey portion of the project and after a feasibility study, the rest of
the project was dropped. Rand, Sally and Tawater, Mark, "Environmental Referrals and the Council
on Environmental Quality", Environmental Law Institute, February, 1986, pp. 248-266, available at:
https://www.slideshare.net/whitehouse/august-1986-theseventeenth-annual-report-of-the-council-
on-environmental-quality.

85 See, for example, Findings and Recommendations of CEQ regarding the Tennessee-Tombigbee
Waterway Wildlife Mitigation Feasibility Study, March 26, 1985, 50 Fed. Reg. 12850 (April 1, 1985).

action must not proceed while the referral is ongoing. Because there is no specific explanation for this
omission in the preamble, it is impossible to tell if the omission was deliberate, and if so, what the
rationale might be for removing this sentence. Whatever the reason for its omission, the underlying
direction to the lead agency not to proceed with the action until the referral process has been
concluded needs to be added back into this section.

H. Proposed § 1506.1(b) - "Limitations on Actions During the NEPA Process".

The proposed revision to this section would expand the types of actions that can be taken
before completion of the NEPA process. The current regulation was drafted both to minimize the
possibility of biasing the decisionmaking process, including the possibility of foreclosing alternatives,
and to address concerns that the limitations on pre-decisional action "would impair the ability of those
outside the Federal government to develop proposals for agency review and approval."86 Thus, the
current regulation states that applicants are not precluded from developing plans or other work
necessary to support an application for government permits or assistance and gives the Rural
Electrification Administration authority to approve minimal expenditures not affecting the environment
(e.g., long lead time equipment and purchase options) made by non-governmental entities seeking loan
guarantees.

The proposed amendment to this regulation expands this by specifically proposing that
agencies be authorized to engage in "such activities, including, but not limited to "acquisition of
interests in land" while the NEPA process is still underway. This addition is of deep concern. Even with
the best of intentions, advance acquisition of land is almost certainly going to bias the analytical and

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decisionmaking process. The preamble presents no justification for this dangerous addition other than

a vague reference to making the process "more efficient and flexible "81 We question how an

applicant expending resources prior to the conclusion of the NEPA process achieves either efficiency or
flexibility. In fact, it makes the process more efficient only if one assumes that the outcome is
predetermined. The flexibility it affords runs only to the applicant, not to the public's interest in a fair
and unbiased process.

Courts have made it clear, often in the context of deliberating on injunctive relief, that allowing
action to proceed before the completion of an adequate NEPA process undermines the purposes of the
law. As the Court of Appeals for the First Circuit said in Sierra Club v. Marsh,88 "The way that harm
arises may well have to do with the psychology of decision makers, and perhaps a more deeply rooted
human psychological instinct not to tear down projects once they are built." As that Court noted, there
is great "difficulty in stopping a bureaucratic steam roller, once started "89

We believe that prior to the completion of the NEPA process project proponents should be
limited to activities necessary to support their various applications for assistance,

86 43 Fed. Reg. 5598, 55986 (November 29, 1978).

87 85 Fed. Reg. at 1704.

88 8 7 2 F.2d 497, 504 (1st Cir. 1989).

89 Id.

permits or approval and that this provision should not be broadened to acquisition of interests in land
or other, unnamed activities that are not specifically for the purpose of supporting applications. Going
beyond that fundamentally starts moving the horse behind the cart with likely bad results. No
explanation for making these changes is offered in the preamble.90 The regulation should not be
amended.

Whether it should make any additional changes to 1506.1, including whether there are circumstances
under which an agency may authorize irreversible and irretrievable commitments of resources

We believe the answer to this question is no, there are no such circumstances. Should there be
a bona fide emergency situation that requires an action that would normally require an EIS, CEQ can
address that need through the development of alternative arrangements.91 The Act itself flags
"irreversible and irretrievable commitments of resources" as an element that must be included in the
"detailed statement" (now termed an EIS) so that those considering the decision would understand the
gravity and permanence of their actions.92 To allow such actions to proceed without completion of the
NEPA process would be an illegal mockery of the law.

Proposed § 1506.2(d) - Elimination of Duplication with State. Tribal and Local Procedures.

While supporting the addition of tribal governments in the regulations, we note the addition of
the sentence that reads, "While the statement should discuss any inconsistencies, NEPA does not
require reconciliation." Why this is this a desirable addition? What problem is it trying to solve? NEPA
is replete with references to the need to cooperate with other levels of government to achieve NEPA's

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goals. The preamble does not explain what advantage there is in including this addition.93 We oppose
the provision.

Proposed § 1508.1(s), Definition of "Mitigation"

Similar to the addition noted above, CEQ has chosen to affirmatively state that NEPA does not
mandate the form or adoption of any mitigation. The CEQ regulations have never stated that
mitigation is required under NEPA, although the current regulations do require consideration of
mitigation measures as part of the analysis of alternatives,94 environmental consequences,95 and when
a cooperating agency requires certain mitigation measures to address concerns.96 Further, mitigation
measures chosen by an agency must

Fed. Reg. at 1704.

C.F.R. §1506.11.

U.S.C. §4332(2)(C)(v)

Fed. Reg. at 1704.

C.F.R. § 1502.14(f).

Id.

§ 1502.16(h).

Id.

§ 1503.3(d).

be included in any Record of Decision,288 and, of course, implemented.98 Mitigation may also be
utilized to support an agency's Finding of No Significant Impact.289290

We believe that fifty years after NEPA's passage, federal agencies are well aware that there is
not an enforceable duty under NEPA to mitigate each adverse impact. However, NEPA encourages
them to try to do so in its admonition to administer the policies, regulations and public laws of the
United States in accordance with NEPA's policies.100 As the Supreme Court stated, "omission of a
reasonably complete discussion of possible mitigation measures would undermine the "action forcing"
function of NEPA."291292 CEQ's proposed statement undermines the core purpose of the analysis and
should be struck. This new and narrowed view from CEQ undercuts the law's purposes and policies.
Juxtapose these proposed prohibitory statements with this statement made during the Senate debate
about NEPA:

288 Id. § 1505.2(c). 98 Id. §

1505.3.

289 Council on Environmental Quality, "Appropriate Use of Mitigation and Monitoring and

Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact", January 14, 2011. Additionally, of
course, there may be considerable mitigation requirements under other laws such as the Clean Water Act and
Endangered Species Act in particular situations.

290 U.S.C. § 4332.

291 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352 (1989).

292 Cong. Rec. 21, 20956 (1969).

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"An environmental policy is a policy for people. . . Its basic principle of the policy is that we
must strive in all that we do to achieve a standard of excellence in man's relationships to his
physical surroundings. If there are to be departures from this standard they will be exceptions
to the rule and the policy. And as exceptions they will have to be justified in the light of public
scrutiny."102

CEQ's proposed statements about what NEPA does not require as a procedural matter inserted into
the regulations reinforce the appearance that CEQ's apparent goal to reduce NEPA to a paperwork
process, untethered from environmental policy. Agencies will clearly get the message that they should
do only the minimum required by these regulations and may, in fact, be prohibited from doing more.293
They should be removed from the regulations.

IV. CEQ UNJUSTIFIABLY PROPOSES TO ELIMINATE NEPA'S APPLICABILITY TO A
WIDE VARIETY OF FEDERAL ACTIONS.

A. Proposed §§ 1501.1. 1507.3(c) and 1508.1(g) - Major Federal Action/NonMajor Federal

Action.

CEQ proposes to reverse its long-standing position that if a proposed federal action has a
significant impact, including a significant cumulative impact, it is a federal action significantly affecting
the human environment. In place of the unitary reading of the direction to agencies to "include in
every recommendation or report on proposals for legislation and other major federal action
significantly affecting the quality of the human environment," CEQ wants to go back to a minority line
of cases from the early 1970's that interpreted the phrase "major federal actions significantly affecting
the quality of the human environment" as meaning that first, a determination of whether an action is a
"major federal action" needed to be made, followed by a determination of significance.

From the beginning of its formal interpretation of NEPA, CEQ explained that:

(b) The statutory clause "major Federal actions significantly affecting the quality of the human
environment" is to be construed by agencies with a view to the overall, cumulative impact of
the action proposed (and of further actions contemplated). Such actions may be localized in
their impact, but if there is potential that the environment may be significantly affected, the
statement is to be prepared. Proposed actions, the environmental impact of which is to be
highly controversial, should be covered in all cases. In considering what constitutes major
action significantly affecting the environment, agencies should bear in mind that the effect of
many Federal decisions about a project or complex of projects can be individually limited but
cumulatively considerable. This can occur when one or more agencies over a period of years
puts into a project individually minor but collectively major resources, when one decision
involving a limited amount of money is a precedent for action in much larger cases or

293 Proposed sections 1500.3 and 1507.3(a).

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represents a decision in principle about a future major course of action, or when several
Government agencies individually make decisions about partial aspects of a major action. The
lead agency should prepare an environmental statement if it is reasonable to

anticipate a cumulatively significant impact on the

environment from Federal action.294

CEQ adopted a similar approach in the next iteration of guidelines published in 1973 after
public review and comment.295 Those guidelines explained that even if a proposed action was localized
in its potential impact, "if there is potential that the environment may be significantly affected, the
statement is to be prepared." 296 The guidelines stated that the words "major" and "significantly" were
intended to imply thresholds of importance and impact that had to be met before an EIS was required,
discussed "federal control and responsibility" and pointed to the example of general revenue sharing
funds as an example of when such control and responsibility did not exist.297

Subsequently, CEQ specifically adopted the reasoning in Minnesota Public Interest Research Group v.
Butz.108 As that decision explained:

To separate the consideration of the magnitude of federal action from its impact on the
environment does little to foster the purposes of the Act, i.e., to 'attain the widest range of
beneficial uses of the environment without degradation, risk to health and safety, or other
undesirable and unintended consequences.' By bifurcating the statutory language, it would be
possible to speak of a 'minor federal action significantly affecting the quality of the human
environment,' and to hold NEPA inapplicable to such an action. Yet if the action has a
significant effect, it is the intent of NEPA that it should be the subject of the detailed
consideration mandated by NEPA; the activities of federal agencies cannot be isolated from
their impact upon the environment. This approach is more consonant with the purpose of
NEPA and is supported in S.Rep. No. 91-296, supra, and the CEQ Guidelines.109

Thus, the preamble to the final regulations explained, "any Federal action which significantly
affects the quality of the human environment is 'major' for purposes of NEPA."110 CEQ proposes to
remove the sentence, "[m]ajor reinforces but does not have a meaning independent of significantly".111
A close look at CEQ's rationale set out in its preamble for removing this sentence and at the associated
case law reveals that CEQ's concerns with the current regulation are not well-founded. First, Congress
itself characterized "major" actions quite broadly. Note the wording in Section 102(2)(C) which states
that, "all agencies of the Federal Government shall .... include in every recommendation or report on
proposals for legislation and other major Federal action significantly affecting the quality of the human
environment, a detailed statement " 112 The use of the word "other" clearly means that Congress

294 Council on Environmental Quality, Statements on Proposed Federal Actions Affecting the Environment,
Guidelines, 36 Fed. Reg. 7724-25 (April 23, 1971).

293 Council on Environmental Quality, Preparation of Environmental Impact Statements, Guidelines, 38 Fed. Reg.
20550, 20551 (August 1, 1973).

296 Id. at 20551.

297 Id. at 20552.

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considered "every recommendation or report on proposals for legislation" to be major Federal actions.
Consider also the Senate report language interpreting this provision that states:

108 498 F.2d 1314, 1321 (8th Cir. 1974). As one commentator has pointed out, although the discussion
in CEQ's 1973 guidelines influenced some courts to think that there were dual standards, "[t]he
unitary standard adopted by CEQ appears correct." Daniel R. Mandelker, et al., NEPA Law and
Litigation, 544 (2019) (citing NAACP v. Medical Center, Inc., 584 F.2d 619, 627 (3rd Cir. 1978)).
Further as noted below, the case CEQ relied upon for its current regulation, in turn, found support
for the unitary approach in the 1973 CEQ guidelines.

109 Id. at 1321-22. Note that the Court found the 1973 Guidelines to be supportive of this
interpretation.

110 Council on Environmental Quality, Final Regulations, 43 Fed. Reg. 55978, 55979 (November 29,
1978).

111 40 C.F.R. § 1508.18. It is also important to note that the Guidelines addressed only Subsection (C) of
Section 102(2) of NEPA. 43 Fed. Reg. 55978 (November 29, 1978). It was not until promulgation of
the 1978 NEPA regulations that CEQ developed the categorical exclusion provision that allows
agencies to designate certain classes of actions as typically not requiring preparation of either an EA
or an EIS.

112 42 U.S.C. § 4332(C) (emphasis added).

Each agency which proposes any major actions, such as project proposals, proposals for new
legislation, regulations, policy statements, or expansion or revision of ongoing programs, shall
make a determination as to whether the proposal would have a significant effect upon the
quality of the human environment. If the proposal is considered to have such an effect, then
the recommendation or report supporting the proposal must include statements by the
responsible official of certain findings "113

This language simply does not support any interpretation of NEPA that suggests there is some subset of
federal actions that have significant effects but are not "major". Indeed, CEQ's current regulation on
this point is quite consistent with the Senate report language.

CEQ's proposed reinterpretation of the phrase "major Federal actions significantly affecting the
environment" focuses on giving independent meaning to a single word: "major" But "interpretation of
a word or phrase depends upon reading the whole statutory text, considering the statute's purpose
and context." CEQ's existing interpretation is, moreover, more consistent with NEPA's "overall
statutory scheme," That scheme starts with NEPA's ambitious directive that the Federal government
should "use all practicable means ... to improve and coordinate Federal plans, functions, programs,
and resources" to, e.g., "fulfill the responsibilities of each generation as trustee of the environment for
succeeding generations," "assure for all Americans safe, healthful, productive, and esthetically and
culturally pleasing surroundings," and "attain the widest range of beneficial uses of the environment
without degradation, risk to health or safety, or other undesirable and unintended consequences." 42
U.S.C. § 4331(b). It would not have been consistent with that goal for Congress to exempt federal
actions with significant adverse impacts on the environment from NEPA's action-forcing requirement

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simply because, by some non-environmental metric, an agency deemed the action not "major." By far
the more compelling interpretation is the one CEQ has held for decades, that any federal action
significantly affecting the environment is, for purposes of NEPA, a major action.

Further, CEQ's existing language does not make the term "major" meaningless, as the preamble
alleges.114 Rather, the current regulation - a large portion of which CEQ proposes to retain - focuses
on actions "that may be major and which are potentially subject to Federal control and
responsibility."115 That language is consistent with the Supreme Court's in Department of
Transportation v. Public Citizen116 that held that when an agency has no ability to prevent certain
effects, the agency need not consider those effects when determining whether its action is a 'major
Federal action."117 And, in fact, the Court cited the current regulatory definition of "major federal
action" in explaining NEPA's requirements and focusing on "federal control and responsibility" as a key
element of the

113 Report of the Senate Committee on Interior and Insular Affairs to accompany S. 1075, No. 91296,

July 6, 1969, p. 20 (emphasis added).

114 85 Fed. Reg. at 1709.

115 40 C.F.R. § 1508.18.

116 541 U.S. 752 (2004).

111 Id. at 770.

definition.118 Nothing in the Court's unanimous opinion suggested in any way that CEQ's current
regulation was problematic.

The focus of the decision in NAACP v. Medical Center, Inc., the case typically cited as authority
for the so-called "dual standard" approach (that is, asking first whether a proposed federal action is
"major" and second, whether it will have significant impacts) is actually consistent with the current
regulatory definition. The case focused on the fact that the Department of Health, Education, and
Welfare (HEW)'s involvement in approving a capital expenditure by the Wilmington Medical Center was
ministerial.119 The underlying statute proscribed detailed standards by which HEW was obligated to
reimburse states for certain health care and hospital costs. The decision observed that the regulations
specifically excluded situations in which federal aid is distributed in a program such a revenue sharing,
in which there is 'no Federal agency control over the use' of the funds. We believe that Medicare,
Medicaid, and child health payments are analogous to payments under revenue sharing because the
Secretary may not control their disbursal. Rather, he pays the hospital for its services to its patient
under certain prescribed programs. The agency's decision as to allocation of those funds is controlled
by the health care provider's costs and the agency is obligated to make payment except in narrow
circumstances."

A careful reading of this case shows that the same result would likely be reached under CEQ's current
regulations. While there was federal involvement in the form of funding, as the court pointed out, it
was analogous to general revenue funds, which are excluded from the language of the current
regulations.120 The current regulations also define "proposal" in a manner that requires that an agency

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"has a goal and is actively preparing to make a decision one or more alternative means of
accomplishing that goal."121 That definition makes it clear that an agency has to have discretion to
choose among alternatives, and thus the situation in NAACP v. Medical Center would likely be decided
the same way under the current regulations.

In short, there is no sound rationale or non-arbitrary justification for the proposed deletion of the
second sentence in Section 1508.18. There is also no case that we know of that holds a discretionary
federal agency action - that is, a proposed action where an agency has sufficient control and
responsibility - and that has significant environmental effects can be treated as "minor" and therefore
outside of the scope of NEPA.

The major immediate impact of this proposed change would likely be massive confusion and
uncertainty and certainly a great deal of litigation. If this standard were actually adopted, we
anticipate agencies would identify some further subset of proposed federal actions with significant
environmental impacts as not being actions for purposes of NEPA. We see the beginnings of this within
the proposed definition itself with the specific exclusion of certain programs run by the Farm Service
Agency and Small Business

118 Id. at 763.

119 584 F.2d 619 at 629.

120 40 C.F.R. § 1508.18(a).

121 40 C.F.R. § 1508.23.

Administration.122 But the harm will not stop there. The proposed regulations invite all agencies to
identify other actions that they deem to be "[n]on-major Federal Actions".123 Within the context of this
rulemaking, the harm includes the issues discussed below.

1. Proposed §1508.l(q) - Excluding Projects with Minimal Federal funding or Minimal Federal
Involvement.

CEQ's proposal to exempt projects with minimal federal funding or minimal federal involvement
(where the agency cannot control the outcome of the project) is extremely vague and could lend to
significant environmental harm. Even the example given in the preamble raises questions. What if
that "very small percentage" of federal funding actually is critical for a small community? How is an
agency supposed to determine the value of a particular contribution to whether a proposed action will
or will not proceed without federal involvement? Where and how does an agency draw the line on
mining and oil and gas operations on split estate lands? For good neighbor/shared stewardship
projects on national forest land? What are examples of the problem this provision is trying to solve?

2. Proposed § 1508.1(q) - Excludes actions that do not result in final agency action under the
Administrative Procedure Act and specifically exempts an agency's "failure to act" from "major federal
action" definition.

CEQ proposes to narrow the definition of "major federal action" such that the NEPA process would
exclude actions that do not result in final agency action under the APA. It would also strike from CEQ's

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current definition circumstances where a responsible agency official fails to act "and that failure to act
is reviewable by courts or administrative tribunals under the Administrative Procedure Act or other
applicable law" as agency actions. 124 CEQ's explanation for this proposed deletion is that in the
circumstances described in the current regulation, "there is no proposed action and therefore no
alternative that the agency may consider. S. Utah Wilderness All., 542 U.S.

at 70-73."12S

But CEQ's proposal is based on a misreading of the Supreme Court's holding in regards to the APA.
The Court found that in that case, there was neither a proposal by the Bureau of Land Management to
act nor a requirement to do so. NEPA did not apply, in the Court's view, because there was no
proposed action for it to apply to in the context of that particular land management plan. But the
Court was extremely clear that the Section 706(1) of the APA did authorize courts to compel an agency
to act when

122 Proposed § 1508.1(q)(l), 85 Fed. Reg. 1712, 1729 (January 10, 2020).

123 Proposed § 1507.3(c)(1), 85 Fed. Reg. at 1728.

124 40 C.F.R. § 1508.18.

125 85 Fed. Reg. at 1709. We note that the case was actually titled as Norton v. Southern Utah
Wilderness Alliance in the Supreme Court. But then, as we point out, CEQ misread the holding also.

agency action is required and is unlawfully withheld.126 And that is precisely the type of action to which
CEQ's current regulation applies:

The reference in that Section to a 'failure to act' was not intended by the Council to require the
preparation of an EIS where no Federal decision was required and none had been made. The phrase
'failure to act' was intended rather to describe one possible outcome in those situations where a
Federal decision has been or was required to be made.127

CEQ's proposal to remove this provision, which on its face is bounded by the APA or other applicable
law, is actually inconsistent with the Supreme Court's holding in Norton v. SUWA as well as the plain
language of the APA.128 CEQ should withdraw this proposed deletion. Leaving it in violates agency
responsibilities under the APA.

3. Proposed § 1508.1(g) - Exempts loans, loan guarantees and other forms of financial assistance

This section would specifically exclude farm ownership and operating loan guarantees by the
Farm Service Agency (FSA) pursuant to 7 U.S.C. 1925 and 1941-1949 and Small Business Administration
(SBA) pursuant to 15 U.S.C. 636(a), 636(m) and 695697ffrom being considered a major federal action
or action for purposes of NEPA. More generally, it states that actions do not include "loans, loans
guarantees, or other forms of financial assistance where the Federal agency does not exercise sufficient
control and responsibility over the effects of the action."129

There is no legal justification for CEQ proposing to exclude these broad classes of actions from
NEPA. Indeed, NEPA specifically states that:

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it is the continuing policy of the Federal Government, in cooperation with State and local
governments, and other concerned public and private organizations, to use all practicable
means and measures, including financial and technical assistance, in a manner calculated to
foster and promote the general welfare, to create and maintain conditions under which man
and nature can exist in productive harmony, and fulfill the social, economic, and other
requirements of present and future generations of Americans.130

Courts have found sufficient federal control and responsibility in the context of financial loans
and other forms of financial assistance to warrant application of NEPA for loans, loan guarantees and
other forms of financially generally and for FSA and SBA actions specifically. For example, Buffalo River
Watershed Alliance v. Department of

126 542 U.S. at 63.

121 Defenders of Wildlife v. Andrus, 672 F.2d 1238, 1245 (D.C. Cir. 1980), quoting from letter by CEQ
General Counsel Nicholas C. Yost to the Department of Justice.

128 542 U.S. at 63; 5 U.S.C. § 706(1).

129 85 Fed. Reg. at 1729.

130 42 U.S.C. § 4331(a) (emphasis added).

Agriculture298 dealt with a large hog farm (6,500 swine) backed by both a SBA and FSA loan guarantee.
Importantly, a condition for eligibility for these guarantees was that the company could not obtain
financing on reasonable terms from other institutions. In holding for the plaintiffs, the court
distinguished the situation from a case where loan guarantees are given with no oversight and/or by
virtue of nondiscretionary criteria. In enjoining FSA and SBA from making payment on their loan
guarantees pending the agencies' compliance with NEPA and the Endangered Species Act, the court
stressed that on "balance, the interest in getting the environmental assessment right outweighs any
harm that enjoining the guaranties will cause the federal agencies. And the public interest is best-
served by ensuring that federal tax dollars aren't backing a farm that could be harming natural
resources and an endangered species."299 The court also found that plaintiffs' injuries were redressable
because of the agencies' continuing oversight responsibilities.300301

In Food & Water Watch v. U.S. Department of Agriculture,134 the court faced a similar factual situation
involving a FSA loan guarantee for a poultry concentrated animal feeding operation. Again, the court
found that without the FSA loan, it was unlikely that that the operation could have proceeded, since
"an applicant for an FSA loan guarantee must certify that the applicant is 'unable to obtain sufficient
credit elsewhere without a guarantee to finance actual needs at reasonable rates and terms.' 7 C.F.R. §
762.120(h)(1)."302 Again, the court found the plaintiff's injuries were redressable, whether through

298 No. 13-cv-450, 2014 WL 6837005 (E.D. Ark. Dec. 2, 2014) (appeal dismissed (8th Cir. 151310) (April 24, 2015)).

299 Id. at *6.

300 Id. at *3-4.

301 F. Supp. 3d 39 (D.D.C. 2018).

302 Id. at 54.

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imposition of mitigation measures or through withdrawal of the loan guarantee.303 Similarly, the
actions of the Rural Utilities Service (RUS) within the Department of Agriculture were the subject of two
decisions involving the proposed expansion of the Sunflower Electric Power Corporation's coal-fired
generating plant.304305 The court determined that the RUS assistance in the form of debt forgiveness
and consent to a lien subordination as well as approvals relating to the expansion of the power plant
were major federal actions under NEPA and that an EIS was required.138

The preamble to this proposed revision argues that these types of actions are not actions for purposes
of NEPA because the federal agencies involved do not operate the facilities themselves, control the
bank, expend funds unless there is a default, or take physical possession of the property. Those
factors, by themselves, are not determinative. The case law demonstrates that in some of these
situations, the agencies retain ample control and responsibility through their legal authority to impose
conditions, including mitigation measures, as part of the terms of financial assistance or to decline to
grant the assistance in the first place. CEQ's revisionist interpretation is thus contrary to law.

CEQ also invites comment on whether any types of financial instruments, including loans and loan
guarantees, should be considered non-major Federal actions and the basis for such an exclusion.

CEQ must not exclude financial instruments, such as loans and loan guarantees, from what may
be considered major federal actions triggering NEPA review. As discussed above, CEQ must also not
narrow the definition of major federal action so as to exclude certain financial instruments from NEPA's
reach. These proposed changes defy the purpose and language of NEPA, undermine longstanding
precedent and agency practice, and generate confusion, rather than achieve clarity.139

Excluding or otherwise narrowing CEQ regulations to exclude certain financial instruments
would violate the language, structure, and purpose of NEPA.140

NEPA's substantive policy directs the federal government to "use all practicable means" to "improve
and coordinate Federal plans, functions, programs, and resources" so that the nation may achieve its
environmental policy goals.141 Congress's inclusion of the word "resources" recognizes that a
commitment of significant federal funding may impact the environment, thus warranting NEPA review.
Moreover, the statute explicitly states that the Federal Government is "to use all practical means and
measures, including financial and technical assistance, ... to create and maintain conditions under
which man and nature can exist in productive harmony . . . and fulfill the . . . requirements of present
and future generations of Americans." 42 U.S.C. § 4331(a) (emphasis added). Thus, it is Congress's
clear, express intent that financial assistance, such as loans and loan guarantees, be included in NEPA
review.

303 Id. at 55-57.

304 Sierra Club v. U.S. Department of Agriculture, 777 F. Supp. 2d 44 (D.D.C 2011); Sierra Club v. U.S.
Department of Agriculture, 841 F. Supp. 349 (D.D.C. 2012).

303 F. Supp. 2d at 56-64; 841 F. Supp. 2d 349, 357-360 (D.D.C. 2012) (enjoining RUS from granting additional
future approvals or financial support for Holcomb Expansion prior to completing an EIS).

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Congress's intent for NEPA to apply to financial instruments is further supported by the
statute's explicit requirement that agencies comply with NEPA "to the fullest extent possible." 142
Agency loans and loan guarantees can be substantial—even, at times, reaching billions of dollars. These
large commitments of resources may have significant environmental impacts in that they can enable
projects with enormous long-term environmental impacts that would not have come to fruition
without federal agency financial support. In order for agencies to effectuate Congress's national
environmental policy, these financial instruments properly fall within NEPA's reach.

139 See 85 Fed. Reg. 1684 (noting one of CEQ's goals with the proposed rulemaking is to
"provide greater clarity").

140 See Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 609 (2013) ("It is a basic tenet that
'regulations, in order to be valid, must be consistent with the statute under which they are
promulgated.'") (citation omitted).

141 42 U.S.C. § 4331(b) (emphasis added).

142 42 U.S.C. §4332.

Courts and agencies have long-recognized that federal action triggering NEPA includes when a
federal agency enables a private party to act.306 Commitments of federal financing to private parties
falls within this category of NEPA-eligible actions.307 Applying NEPA to financial instruments makes
sense given that NEPA "guarantees that the relevant information [concerning environmental impacts]
will be made available to the larger audience that may also play a role in the decisionmaking process
and the implementation of the decision."308 In other words, because federal financial tools enable
private projects that may have significant environmental effects, decisionmakers must have the
relevant information available to inform their decision.309

CEQ's proposals to exclude certain types of financial instruments from NEPA's reach, therefore,
undermine decades of court precedent and agency practice. CEQ offers no explanation for eliminating

306 See Save Barton Creek Ass'n v. FHWA, 950 F.2d 1129, 1134 (5th Cir. 1992); Scientists' Inst, for Pub. Info. v.
Atomic Energy Comm 'n, 481 F.2d 1079, 1088 (D.C. Cir. 1973) ("there is Federal action' within the meaning of the
statute not only when an agency [acts], but also whenever an agency makes a decision which permits action by
other parties which will affect the quality of the environment").

307 Found, on Econ. Trends v. Heckler, 756 F.2d 143, 155 (D.C. Cir. 1985) ("Federalfunding has long been
recognized as an appropriate basis to enforce NEPA's requirements on non-federal parties. ").

308 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).

309 See, e.g., Scientists' Inst, for Pub. Info. v. Atomic Energy Comm'n, 481 F.2d 1079, 1088 (D.C. Cir. 1973)

("there is Federal action' within the meaning of [NEPA]. . . whenever an agency makes a decision which permits
action by other parties which will affect the quality of the environment"); Named Individual Members of San
Antonio Conservation Society v. Texas Highway Dept., 446 F.2d 1013, 1027 (5th Cir. 1971), cert, denied, 406 U.S.
933 (1972) (federal funding "triggered the advertisement for contract bids, the letting of contracts, and the
commencement of construction, " thus implicating NEPA); NEPA Law and Litig. § 8:20 (federal financing of a
private entity's project is sufficient to require NEPA "because it is the federal agency that has 'enabled' the
nonfederal entity to act. ").146 147See 85 Fed. Reg. 1684 (CEQ'sproposed rule "would modernize and clarify the
regulations"). 148Id. at 1729 (emphasis added).

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these longstanding practices and consequent protections. Moreover, rather than providing clarity—one
of CEQ's purported goals in the rulemaking—CEQ's proposed changes would instead result in confusion
among courts, agencies, and private parties seeking financial assistance as these stakeholders scramble
to adjust to new expectations.147 For these reasons CEQ must remove the proposed language relating
to financial instruments.

In addition to soliciting comments on whether federal loans, loan guarantees, and other financial
tools ought to be considered non-major federal actions, CEQ is proposing to redefine "Major Federal
action" in such a way so as to unreasonably exclude certain financial instruments.148. CEQ's proposed
redefinition provides:

(q) Major Federal action ....

(1) Actions do not include loans, loan guarantees, or other forms of financial assistance
where the Federal agency does not exercise sufficient control and responsibility over the effects
of the action.

The proposed language above—limiting NEPA applicability to financial instruments unless
certain new criteria are met—is problematic for several reasons. First, agency control has historically
been but one factor when evaluating whether NEPA applies to financial instruments; courts and
agencies also evaluate the amount of financial assistance. It would be unreasonable for NEPA
applicability to turn on control and responsibility alone. CEQ's proposed language undermines
established case law recognizing that agency control does not always equate "responsibility over" an
action's effects.310311312 Last, CEQfails to offer support for creating what amounts to an exclusion of
many significant financial instruments from NEPA's reach, and nor does CEQ explain or support this
departure from past policy and practice.

CEQ's proposed language creates a barrier to NEPA applicability based, unreasonably, solely on
an agency's "control and responsibility over the effects of an action."150 In contrast, CEQ's existing
regulations define "major Federal action" as an "action[ ] with effects that may be major and which [is]
potentially subject to Federal control and responsibility."151 Operating against CEQ's existing
requirement that control and responsibility may be possible—but not required—for NEPA to apply,
courts have taken the approach of examining both the amount of a federal financial instrument and the
potential for agency control.313314 CEQ's proposal eliminates one part of this evaluation—the financial
instrument's amount—without explanation. Given that federal financial commitments are often
millions, and even billions, of dollars, it is unreasonable and irresponsible to remove this factor when
evaluating whether an action may significantly affect the environment.

310 Scientists' Institute for Public Information, Inc. v. Atomic Energy Comm 'n, 481 F.2d 1079 (D.C. Cir. 1973)
(recognizing major federal action occurs when an agency enables a private party to act).

111 Fed. Reg. 1729.

312 C.F.R. § 1508.18 (emphasis added).

313 See, e.g., Ka Makani 'O Kohala Ohana Inc. v. Water Supply, 295 F.3d 955, 960 (9th Cir.

314); Indian River Cty. v. Rogoff 201 F. Supp. 3d 1, 18 (D.D.C. 2016) ("The Court does not have before it any
persuasive authority that financial assistance at the level provided by the PAB allocation, when paired with federal-
agency control, cannot make up major federal action. ") (emphasis in original).

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CEQ's proposed language requiring control and responsibility over the effects also misconstrues
the type of control relevant to NEPA and financial instruments. Typically, agencies exercise control in
the context of financial instruments by, for example, evaluating whether a project meets certain
eligibility criteria.315 Agencies may then place conditions on a commitment of financial assistance.316
Eligibility criteria and conditions on a financial instrument—sufficient controls to trigger NEPA—are
nonetheless distinct from the kind of "responsibility over the effects" CEQ is prescribing. CEQ's
proposed language, therefore, fails to align with the realities of federal financial tools and must be
removed.

Finally, CEQ's proposed language is arbitrary and capricious on several grounds, necessitating
its removal. CEQ's docket accompanying this rulemaking offers no support for excluding financial
instruments from NEPA's reach, or otherwise narrowing the definition of major federal action so as to
exclude financial instruments absent sufficient control and responsibility over the effects of the action.
In this way, CEQ lacks reasonable grounds for making this change.

4. Proposed § 1508.1(q)(2)(i) - Recharacterizes the nature of "action" for treaties, international
conventions and agreements.

This proposed revision would recharacterize the federal action for purposes of NEPA in the case
of a treaty, international convention or agreement. Under the current regulation,155 agencies have
prepared NEPA analyses either prior to negotiations or prior to ratification. The proposed revision
change would delay NEPA compliance until a treaty, convention or agreement has already been
negotiated and ratified or executed by the United

States and is being implemented. The proposed revision also removes the statement that "Proposals
for legislation include requests for ratification of treaties" from the current definition of
"Legislation".156 Thus, U.S. positions during negotiations and the decision whether to sign or ratify such
an instrument would be devoid of analysis and public involvement. But if NEPA analyses are not
conducted until after negotiations have been completed and agreements signed or ratified, those
decisions will have been made uninformed by any NEPA analysis. For this reason, the proposed
revision is contrary to law.

The proposed change is also contrary to decades of agency NEPA practice. CEQfails to provide any
explanation for the change. For example, in 1973, the Department of State prepared a draft and final
EIS on the proposed ratification of the Convention on the Prevention of Marine Pollution by Dumping
of Wastes and Other Matters. The National Oceanic and Atmospheric Administration prepared and a
draft and final EIS in 1979-1980 in cooperation with the Department of State for the proposed Interim
Convention on Conservation of North Pacific Fur Seals prior to its submission to the U.S. Senate. The
Department of State prepared draft and final EISs in 1982 prior to negotiations for an international

315 See, e.g., 10 C.F.R. §611.100 (eligibility criteria for loan guarantees under the Department ofEnergy's Title XVII
program).

316 See, e.g., Indian River Cty. v. Rogoff 201 F. Supp. 3d 1, 19 (D.D.C. 2016) (noting that an agency's "discretion
to condition its loan award on the recipient's compliance with various

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regime for Antarctic Mineral Resources, in 1984 prior to submitting the Compact of Free Association for
Micronesia to Congress for ratification, and in 1988, prior to negotiations on the proposed Montreal
Protocol on Substances that Deplete the Ozone

conditions, including environmental mitigation measures" proved sufficient to trigger NEPA); Friends of
the Earth v. Mosbacher, 488 F. Supp. 2d 889, 915 (N.D. Cal. 2007) (when evaluating agency financing to
a project, "the Court must consider carefully the nature of [agency] involvement in these projects and
particularly what conditions, if any, the agencies impose in connection with financing.").

155 40 C.F.R. § 1508.18 (b)(1).

156 40 C.F.R. § 1508.17.

Layer. In 1988, the Department of the Army prepared an Environmental Assessme317nt for the
Intermediate Range Nuclear Forces Treaty. Any departure from that practice, as well as from
Congress's expressed intention that federal actions be informed by advance consideration of
environmental impacts, demands a lawful and rational justification that the proposed rule's preamble
does not provide.

5. Proposed § 1501.8(g)(2) - Guidance Documents.

This provision proposes to strike the word "guide" from the current
definition of major federal action in the context of stating that, "Adoption of formal plans, such as
official documents prepared or approved by federal agencies which guide or prescribe alternative uses
of Federal resources, upon which future agency actions will be based."157

The rationale for this proposed deletion is simply that "guidance is nonbinding." This statement
significantly underestimates the impact of guidance. Guidance may vary in its nature and effect, but
some guidance functions as the equivalent of a directive, setting a firm policy position that has legal
effect. And "it is well established that an interpretative guidance issued without formal notice and
comment rulemaking can qualify as final agency action."318 In fact, CEQ's own guidance has been given
"substantial deference" by the federal courts.319

CEQ should abandon this entire effort to re-interpret the most well known phrase in NEPA.

ADDITIONAL QUESTIONS RELATED TO "MAJOR FEDERAL ACTION"

317 C.F.R. § 1508.18(b)(2) (emphasis added).

318 State of Arizona v. Shalala, 121 F. Supp. 2d 40, 48 (D.D.C. 2000), citing, among other cases, Bennett v. Spear,
520 U.S. 154, 177-78 (1997) for a two-prong test that (1) the action must first mark the "consummation " of the
decisionmaking process and secondly must cause "legal consequences" or "determine rights or obligations. "

319 League of Wilderness Defenders-Blue Mountains Biodiversity Project v. U.S. Forest Service, 549 F. 3d 1211 (9th
Cir. 2008) (giving Auer deference to CEQ guidance on consideration of past actions in cumulative effects analysis);
Seattle Audubon vs. Lyons, 871 F. Supp. 1291, 1319-20 (W.D. Wash. 1994) (relying in part on CEQ General
Counsel's memo advising on correct formulation of the no action alternative to affirm Forest Service's framing of
no action alternatives in regards to the proposed Pacific Northwest Forest Plan).

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Should CEQ make any further changes to this paragraph [the definition of "major federal action"
paragraph], including changing "partly" to predominantly" for consistency with the edits to the
introductory paragraph regarding "minimal Federal funding." CEQ also invites comment on whether
there should be a threshold (percentage or dollar figure) for "minimal Federal funding." and if so. what
would be an appropriate threshold and the basis for such a threshold.

For good reason, CEQ has never equated the amount of federal funding for a proposed action with the
level of analysis required for NEPA compliance. It should not take that step now. The level of
environmental impact may be relatively small despite a large amount of federal funding or quite
significant despite a modest amount of federal funding. For example, federal approval of the
introduction of a foreign species for purposes of biological control may not involve a large amount of
federal funding, but has the potential for significant ecological impact. Conversely, a decision to invest
a significant amount of federal funding for preservation of a historic site may, by maintaining the site in
its current condition, not have a significant impact.

Creating a financial threshold to determine whether a proposed action should be analyzed under
NEPA would not be wise or supported by any evidence or rationale identified in the proposed rule's
preamble. The threshold analysis for NEPA purposes turns on environmental and related social and
economic effects, not funding levels. Categorical exclusions are the appropriate way to treat actions
without significant impacts. Imposing funding limitations would invite efforts to avoid any such
threshold and ultimately would be arbitrary and capricious. For the reasons stated above, we also
oppose changing "partly" to "predominantly."

Whether the definition of "major Federal action" should be further revised to exclude other per se
categories of activities or to further address what NEPA analysts have called "the small handle
problem." Commenters should provide any relevant data that may assist in identifying such categories
of relevant data that may assist in identifying such categories of activities.

As discussed above, we strongly disagree with CEQ's proposed reinterpretation of the key phrase in
Section 102(2)(C) of NEPA, "proposals for legislation and other major Federal actions significantly
affecting the quality of the human environment". That proposed reinterpretation would reverse
decades of consistent CEQ and case law interpretation to further the apparent goal of narrowing NEPA
review. Thus, we do not support CEQ adding additional categories of federal actions allegedly exempt
from NEPA review.

We also do not believe that the CEQ regulations should be revised to address what is informally
characterized as the "small federal handle" issue. The preamble cites the discussion of this issue in a
treatise by Professor Mandelker.320 As Professor Mandelker's discussion illustrates, court decisions in
this area depend largely on the facts of a particular case.321322 For example, the 9th Circuit's decision in
Save Our Sonoran, Inc., v. Flowers162 affirmed the lower court's determination that while the Corps'

320Mandelker, Daniel R., Glicksman, Robert L., Aughey, Arianne Michalek, McGillivray, Donald, Doelle,
Meinhard, MacLean, Jason, NEPA Law and Litigation, § 8.20, Thomas Reuters (2019), cited at 85 Fed. Reg. 1709.

321 Id.

322 F.3d 1113 (9th Cir. 2004).

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direct jurisdiction was over the desert washes at a development site, these washes were like
"capillaries through tissue".163 Thus, "any development the Corps permits would have an effect on the
whole property .... [and] [t]he NEPA analysis should have included the entire property."164 As the
Court of Appeals decision explained, the Supreme Court's decision in Dept. of Transportation v. Public
Citizen165 is consistent with this reasoning:

In Public Citizen, the Supreme Court excluded from the scope of NEPA analysis any
environmental effect that does not have a 'reasonably close causal relationship' to the
proposed development. Here, the district court found that any development permitted by the
Corps would affect the entire property. Public Citizen's causal nexus requirement is
satisfied.166

Agencies have substantial guidance from case law. CEQ should not proceed to further rulemaking on
this issue.

B. Proposed § 1508.17 - Legislation.

The current definition of legislation that reads "'[legislation' includes a bill or legislative
proposal to Congress" should be retained. The proposed revision of the definition substitutes the word
"means" for "includes." However, there are potentially other instruments that a department may send
to Congress besides a bill or legislation. For example, the action at issue in NRDC v. Lujan167 was
neither a bill nor legislation, but rather a report that Congress required the Secretary of the Interior to
submit. The report had to include certain factual information, analysis and recommendations about
the Arctic National Wildlife Refuge.168

CEQ offers no explanation for this narrowing of the definition of legislation and it should be
withdrawn.

CEQ also asks for comments on whether the legislative EIS requirement should be eliminated or
modified because the President proposes legislation, and therefore it is inconsistent with the
Recommendations Clause of the U.S. Constitution, which provides the President shall recommend for
Congress' consideration 'such [mleasures as he shall judge necessary and expedient...." U.S.
Constitution. Ar. II. 3. The President is not a Federal agency. 40 CFR 1508.12. and the proposal of
legislation by the President is not an agency action. Franklin v. Mass.. 505 U.S. 788. 800-01 (1992).

163 Id. at 1122.

164 Id. at 1122.

165 541 U.S. 752 (2004).

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166 Save Our Sonoran, Inc., 408 F.3d at 1122 (citation omitted). See also, White Tanks Concerned
Citizens, Inc. v. Strock, 563 F.3d 1033 (9th Cir. 2009).

167 768 F. Supp. 870 (D.D.C. 1991).

168 16 U.S.C. § 3142(h).

CEQ cannot eliminate the legislative EIS (LEIS) requirement. The sole type of action that
Congress specifically identified as being the subject of the "detailed statement" required by Section
102(2)(C) of NEPA is a "report on proposals for legislation."169

Nothing in the Supreme Court's decision in Franklin v. Massachusetts stands for the proposition that
Congress cannot require an agency to submit information to it in a systematic manner, which is exactly
what Congress did in Section 102(2)(C) of NEPA. Rather, Franklin holds that in a situation in which the
President's "personal transmittal of the [decennial census] report to Congress settles the
apportionment," there is no final agency action for purposes of the APA.170 But as has been pointed
out, "[o]f course, there is a big difference between saying that APA review is unavailable and saying
that officials do not have to comply with NEPA when they suggest legislation."171 As the Court in Public
Citizen stated:

Franklin is limited to those cases in which the President has final constitutional or
statutory responsibility for the final step necessary for the agency action directly to
affect the parties. . .. When the President's role is not essential to the integrity of the
process, however, APA review of otherwise final agency actions may well be
available.172

C. Proposed §§ 1502.4(b), 1502.4(c)(3) - Programmatic EISs.

CEQ proposes to eliminate the language in the current regulation that states
that programmatic EISs "are sometimes required"173 and to eliminate the requirement that
programmatic EISs "shall" be prepared for federal or federally assisted research, development of
demonstration programs for new technologies that, if applied, could significantly affect the quality of
the environment.174 Both proposed changes are unlawful and unwarranted.

Many years before CEQ's current regulations were promulgated, the U.S. Court of Appeals
for the D.C. Circuit determined that a programmatic EIS may be "sometimes required" in the context of
the development of new technology. In the seminal decision of Scientists' Institute For Public Info,
Inc. v. Atomic Energy Commission,115 the Court observed that the:

169 42 U.S.C. §4332(2)(C).

170 Franklin v. Massachusetts, 505 U.S. 788, 799 (1992). Note that the Court did not find that Congress
was precluded from including the President under the Administrative Procedures Act.

Rather, it found that "textual silence" was not enough to bring the Presidency within its purview and
that out of respect for separation of powers, it "would require an express statement by Congress

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before assuming it intended the President's performance of his statutory to be reviewed" under the
APA. Id. at 800-01.

171 Public Citizen v. U.S. Trade Representative, 5 F.3d 549, 554 (D.C. Cir. 1993) (Powell, J., concurring).
112 Id. at 552.

173 40 C.F.R. § 1502.4(b).

174 40 C.F.R. § 1502.4(c)(3).

175 481 F.2d 1079 (D.C. Cir. 1973).

Application of NEPA to technology development programs is further supported by the
legislative history and general policies of the Act. When Congress enacted NEPA, it was well
aware that new technologies were a major cause of environmental degradation. The Act's
declaration of policy states:

The Congress [recognizes] the profound impact of man's activity on the interrelations
of all components of the natural environment, particularly the profound influences of .
. . new and expanding technological advances. National Environmental Policy Act, §
101(a), 42 U.S.C. §4331(a) (1970).

And the Senate report notes, as one of the conditions demanding greater concern for the
environment:

A growing technological power which is far outstripping man's capacity to understand
and ability to control its impact on the environment. S.Rep. No. 91-296.

NEPA's objective of controlling the impact of technology on the environment cannot be
served by all practicable means, see 42 U.S.C. §4331(b) (1970), unless the statute's action
forcing impact statement process is applied to ongoing federal agency programs aimed at
developing new technologies which, when applied, will affect the environment. To wait
until a technology attains the stage of complete commercial feasibility before
consideration the possible adverse environmental effects attendant upon ultimate
application of the technology will undoubtedly frustrate meaningful consideration and
balancing of environmental costs and other benefits. Modern technological advances
typically stem from massive investments in research development, as is the case here.
Technological advances are therefore capital investments and, as such, once brought to a
stage of commercial feasibility the investment in their developments acts to compel their
application. Once there has been, in the terms of NEPA, "an irretrievable commitment of
resources" in the technology development stage, the balance of environmental costs and
economic and other benefits shifts in favor of ultimate application of the technology.323

323 Id. at 1089-90.

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The Court stated that it "tread firm ground in holding NEPA requires impact statements for major
federal research programs . . . aimed at development of new technologies which, when applied, will
significantly affect the quality of the human environment."324 While as in all NEPA case law, holdings
most typically depend on the facts of a particular situation, the articulation of NEPA law in the D.C.
Circuit's decision in Scientists' Institute v. AEC stands.

Also before CEQ's current regulations were promulgated, the U.S. Supreme Court recognized that in
some cases, an EIS on a proposed program could be required. While determining that in the particular
case at hand, factually there was not a proposed program, 325the Court in Kleppe v. Sierra Club 178
made it clear that in "certain situations," a comprehensive EIS would be required.179 The Supreme
Court further explained that "when several proposals for coal-related actions that will have cumulative
or synergistic environmental impact upon a region are pending concurrently before an agency, their
environmental consequences must be considered together. Only through comprehensive
consideration of pending proposals can the agency evaluate different courses of action."326327

Far from clarifying NEPA's requirements or making the process more efficient, CEQ's proposed
deletion of the fact that programmatic EISs are "sometimes required" and the proposed change from
"shall" to "should" in relationship to programmatic EISs at an appropriate stage of technological
development will mislead and confuse agencies and likely result in violations of law. There is no
explanation in the preamble for these changes181 and they should be rejected in any final rulemaking.

Whether the regulations should clarify that NEPA does not apply extraterritoriallv. consistent with
Kiobel v. Royal Dutch Petroleum Co.. 569 U.S. 108. 115-16 (2013). in light of the ordinary presumption
against extraterritorial application when a statute does not clearly indicate that extraterritorial
application is intended by Congress.

The regulations should not state that NEPA does not apply to federal agency decisions in regards to
federal actions that would take place outside of the United States or with effects outside of the United
States. The "extraterritoriality issue" is a red herring in the context of NEPA.

The presumption against extraterritoriality "serves to protect against unintended clashes between our
laws and those of other nations which could result in international discord."328 The presumption also
"helps ensure that the Judiciary does not erroneously adopt an interpretation of U.S. law that carries

324 Id. at 1091.

325 U.S. 390 (1976). 179Id. at 409.

326 Id. at 410. The Courtwent on to say that, "[cjumulative environmental impacts are, indeed, what requires a
comprehensive impact statement." Id. at 413.

327 Fed. Reg. at 1700.

328 Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 108 (2013) (quoting EEOC v. Arabian American Oil Co.,
499 U.S. 244, 248 (1991)).

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foreign policy consequences not clearly intended by the political branch."329 Examples of situations in
which the presumption has been applied include the applicability of the Eight Hour Law to American
workers in foreign countries where the U.S. law would have applied to citizens working in their own
country for an American contractor were the statute applied abroad,330 the application of
U.S. security laws when the statements at issue were made from a foreign company's headquarters in
its home country,331 and allegations that certain corporations violated the law of nations in a foreign
country.332

In contrast, implementation of NEPA does not regulate the conduct of either individuals or
corporations. Where courts have found that application of NEPA would, in fact, have serious foreign
policy implications, they have excused agencies from compliance.333 But in a case where the federal
agency decisionmaking occurs primarily in the U.S. and a case does not present a conflict between U.S.
and foreign sovereign law, the presumption against extraterritoriality does not apply to NEPA
implementation of federal agency decisionmaking.334 Further, courts have analyzed the presumption
differently when the proposed action in question has effects in the U.S.335

NEPA's legislative history and statutory language clearly evidence concern and awareness about
environmental degradation of the worldwide environment and biosphere.336 Shortly after the law's
passage, Congressional Members and Congressional committees that had been involved in NEPA's
enactment stated that the EIS requirement was meant to apply to federal agency actions wherever
they were proposed to occur. In responding to a suggestion made during an oversight hearing that
perhaps NEPA did not apply fully to the international environmental effects of agency actions, a
Merchant Marine and Fisheries Committee report contained the following admonition:

Stated most charitably, the committee disagrees with this interpretation of NEPA. The history of the
Act makes it quite clear that the global effects of environmental decisions are inevitably a part of the
decision-making process and must be considered in that context.337

329 Id. at 116.

330 Foley Bros. v. Filardo, 336 U.S. 281, 287 (1949).

331 Morrison v. Nat'I Australia Bank, 561 U.S. 247, 255 (2010).

332 Kiobel v. Royal Dutch Petroleum Co., 569. U.S. 108, 124-25 (2013).

333 See, e.g., Nat. Res. Def. Council v. Nuclear Regulatory Comm 'n, 647 F.2d 1345, 1366 (D.C. Cir. 1981).

334 Envtl. Def. Fund v. Massey, 986F.2d528, 533 (D.C. Cir. 1993).

335 Nat'l Org. for the Reform of Marijuana Laws v. Dep't of State, 452 F. Supp. 1226, 1233 (D.D.C. 1978); see also,
U.S. v. Nippon Paper Indus. Co., 109 F.3d 1 (1st Cir. 1997).

336 See, e.g., 115 CONG. REC. 29,082 (1969) ("Although the influence of U.S. policy will be limited outside its
borders, the global character of ecological relationships must be the guide for domestic activities. Ecological
consideration should be infused into all international relations. "); 115 CONG. REC. 26,576 (1969) ("It is an
unfortunate fact that many and perhaps most forms of environmental pollution cross international boundaries as
easily as they cross state lines. "). 42 U.S.C. § 4321 ("The purposes of this chapter are ... to promote efforts which
will prevent or eliminate damage to the environment and biosphere"); 42 U.S.C. § 4332(F) (recognizing the
"worldwide and long-range character of environmental problems").

337 Administration of the National Environmental Policy Act, Merchant Marine and Fisheries Committee, H.R. REP.
NO. 92-316, pt. 1, at 53 (1971).

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When Congress was debating proposed legislation (which did not pass) to exempt the Export-Import
Bank from NEPA, Senator Muskie stated that he was amazed at: [b]ureaucratic descriptions of
legislative intent 180 degrees opposite from what I know the actual legislative intent to have been. The
thought never occurred to me that somewhere down the line nine years later the argument would be
made that because major Federal actions impacting on areas outside the United States were not
specifically referenced that, therefore, they were excluded.338339

The Agency for International Development (A.I.D.) has followed regulations implementing NEPA since
1976 for projects such as irrigation projects, road construction, water and sewage projects and
resettlement projects.193 When site specific NEPA analysis is prepared for actions in host countries,
A.I.D. representatives hold consultations with the host government throughout the process, including
appropriate public participation.340341

NEPA also applies to transboundary effects caused by U.S. federal agency actions. In Backcountry
Against Dumps v. Perry,195 the Court held that NEPA required DOE to consider the effects in Mexico of
a proposed transmission line that would be partly constructed in the United States and partly in
Mexico.342 Similarly, the Bureau of Reclamation was required to analyze the impacts of transferring
water from the Missouri River Basin to the Hudson Bay Basin and the associated concerns regarding
biota transfer in Canada.343

In short, in many circumstances that do not involve the presumption against extraterritoriality,
agencies have a responsibility to assess actions and effects outside of the United States. CEQ should
not proceed with rulemaking on this issue.

D. Proposed §§1501.1(a)(2) and 1507.3(c) - NEPA Threshold Applicability. Non-Discretionary Actions.

This proposed threshold would state that actions that are non-discretionary actions, in whole
or in part, are not subject to NEPA. The CEQ regulations and applicable case law make it clear that an
agency has to have some discretion for NEPA's procedural requirements to apply.344 This makes sense
given the relationship of the NEPA process to decisionmaking. On the other hand, far too often, we
have found that agencies proffer a much more modest view of their discretion when considering

338 Export-Import Bank Amendments of1978: Hearings before the Subcommittee on Resource Protection of the
Senate Committee on Environment and Public Works, 95th Cong., 2d Session (1978), p. 220.

339 C.F.R. pt. 216.

340Id. at§216.8.

341 WL 3712487 (S.D. Cal. 2017).

342 Id. at 4-5.

343Manitoba v. Salazar, 691 F. Supp. 2d37, 51 (D.D.C. 2010); see also, Swinomish Tribal Cmty.v. FERC, 627F. 2d
499 (D.C. Cir. 1980); Wilderness Soc'y v. Morton, 463 F.2d 1261 (D.C. Cir. 1972).

344 A "proposal, "for purposes of NEPA "exists at that stage in the development of an action when an agency
subject to the Act has a goal and is actively preparing to make a decision one or more alternative means of
accomplishing that goal. ..." 40 C.F.R. § 1508.23. See also, State of South Dakota v. Andrus, 614 F.2d 1190,
1193 (8th Cir. 1980), Milo Cmty. Hosp. v. Weinberger, 525 F.2d 144, 148 (1st Cir. 1975).

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NEPA's applicability than they do in other contexts. And agencies have sometimes incorrectly asserted
that a statutory authorization to undertake an action excuses the need to comply with NEPA.199

Even if legislation directs an agency to construct a particular structure at a particular location,
the agency typically retains considerable discretion as to design, construction and mitigation measures.
While we believe it is unnecessary to include this provision in the CEQ regulations at all, we particularly
object to the proposed language suggesting that an action is not subject to NEPA if there is a lack of
discretion "in part". If such a situation truly exists, the agency must still comply with NEPA for the
remainder of the action and explain its rationale for not analyzing alternatives for the non-discretionary
portion of the action. The current wording invites confusion and abuse and should be removed or
modified.

E. Proposed §§ 1501.1(a)(4) and 1507.3(c) - NEPA Threshold Applicability and Congressional Intent.

This provision invites agencies to judge for themselves whether Congress intended there to be
compliance with NEPA for a particular type of action. The preamble does not identify any legal
authority or justification for this proposal and we do not believe there is any such authority. Congress
included in NEPA the admonition, as we need to keep reminding CEQ, that agencies should implement
the provisions of Section 102(2) "to the fullest extent possible."200 Congress is quite capable of
exempting either a class of actions or a particular project from NEPA and has done so unequivocally on
several occasions. The U.S. Supreme Court has stated quite clearly that:

NEPA's instruction that all federal agencies comply with the impact statement requirement - and with
all the other requirements of § 102 - 'to the fullest extent possible,' 42 U.S.C. § 4332, is neither
accidental nor hyperbolic. Rather, the phrase is a deliberate command that the duty NEPA imposes
upon the agencies to consider environmental factors not be shunted aside in the bureaucratic shuffle.
This conclusion emerges clearly from the statement of the Senate and House conferees, who wrote the
'fullest extent possible' language into NEPA" 'The purpose of the new language is to make it clear that
each agency of the Federal Government shall comply with the directives set out in [§ 102(2)] unless the
existing law applicable to such agency's operations expressly prohibits or makes full compliance with
one of the directives impossible. Thus, it is the intent of the conferees that the provision 'to the fullest
extent possible' shall not be used by any Federal agency as a means of avoiding compliance with the
directives set out in section 102. Rather, the language in section 102 is intended to assure that all
agencies of the Federal

Government shall comply with the directives set out in said section 'to the fullest extent
possible' under their statutory authorizations and that no agency shall utilize an excessively
narrow construction of its existing statutory authorizations to avoid

199 See, e.g., Friends of Columbia Gorge, Inc. v. U.S. Forest Serv., 546 F. Supp. 2d 1088, 1094- 95 (D.

Or. 2008).

200 4 2 U.S.C. §4332.

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compliance.'115 Cong. Rec. 39703 (1969) (House conferees. See id. at 40418 (Senate
conferees). See also 40 CFR §1500.4(a) (1975).345

Courts have also been clear that legislation authorizing a particular project does not relieve an
agency from the obligation to evaluate the project under NEPA. In Izaak Walton League of America v.
Marsh,346 appellants argued that Congressional authorization for a particular lock and dam project on
the Mississippi River demonstrated that Congress did not mean for the Corps to undertake the NEPA
process subsequent to the authorization's passage. Citing to the U.S. Supreme Court's consistent
position that repeal by implication is disfavored, the Court held that passage of the authorization bill
did not relieve the Corps from its NEPA obligations.347 As the Court said in Izaak Walton:

We note, however, that NEPA itself states that all government action must be taken in
accordance with the goals set forth in the Act. [cite omitted] Moreover, Congress has shown

that it is fully capable of expressing its desire to exempt projects from NEPA Given

Congress' clearly expressed desire to ensure that all government actions are taken in
accordance with NEPA, and its ability to expressly override the requirements of the Act, we
believe that, even when substantive legislation is involved, repeal by implication should be
found only in the rarest of circumstances. Absent very strong evidence in the legislative history
demonstrating a congressional desire to repeal NEPA, or a direct contradiction between that
Act and the new legislation, claims under NEPA should be reviewed."348

Thus, the law is already clear that the only statutory conflict that can excuse an agency from NEPA
compliance is when Congress "expressly prohibits" or makes full compliance with some aspect of
NEPA's requirements "impossible". CEQ's proposed invitation to agencies to second guess Congress'
intent invites agencies to go down an unlawful pathway. This proposal should be withdrawn.

F. Proposed § §1501.1(5) and 1507.3(b)(6) - NEPA Threshold Applicability and Functional
Equivalence.

These proposed sections invite all agencies to substitute any other analysis or process for
NEPA. According to the proposed text, the analysis or process could be mandated by another law or by
an executive order for proposed regulations or in the case of other proposed actions, apparently a
process developed by the agency itself. The open invitation to abandon the NEPA process comes with
three general criteria that are so broad and vague as to be open to multiple interpretations: 1) there
are substantive and procedural standards that ensure full and adequate consideration of
environmental issues; 2) there is public participation before a final alternative is selected, and 3) a

345 Flint Ridge Dev. Co. v. Scenic Rivers Ass'n, 426 U.S. 776, 788 (1976) (emphasis added).

346 Izaak Walton league of America v. Marsh, 655 F.2d 346 (D.C. Cir. 1981).

347 Id. at 368. The court also noted that prior decisions had come to the conclusion that Congressional
appropriations do not eliminate an agency's responsibility to comply with NEPA. Id. at 367.

348 Id. at 367.

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purpose of the review that the agency is conducting is to examine environmental issues. The preamble
provides no legal rationale for this proposal.349

While some public participation is required under CEQ's proposal, it does not have to be
equivalent to NEPA. Limiting public participation runs counter to CEQ's long standing position that
"public scrutiny [is] essential to implementing NEPA."206 Allowing another statutory process that is not
primarily focused on environmental issues to replace the NEPA process runs counter, of course, to the
whole purpose of NEPA. And there is no requirement that reasonable alternatives, the very core of
NEPA analyses, need to be analyzed. In fact, pretty much any process that includes some look at
environmental issues and some modicum of public participation could, under the proposed rule, be
substituted for NEPA.

There is neither a policy rationale nor a legal basis for this wholesale abandonment of NEPA in
CEQ's regulations. The government-wide implementation of the functional equivalence
exemption would trigger considerable debate in every agency and within every affected
community of interest. Is this meant to be the end of NEPA implementation for federal land
management planning? For military installation planning? For fishery management plans? For
all permit processes? Would all of these various other processes need to be supplemented
with elements that they currently rely on the NEPA process for in reaching a decision? What
level of public participation would suffice?

Throughout NEPA's fifty years of implementation, the functional equivalence doctrine has been
narrowly approved by federal courts for the Environmental Protection Agency (EPA) in the context of
implementing certain pollution control laws such as particular activities under the Clean Air Act350 and
RCRA.351 Those cases have rested on the notion that EPA's mission in carrying out those particular
statutory responsibilities was primarily environmental protection. That specific application of the
functional equivalence doctrine has support in NEPA's legislative history.209 But as the D.C. Circuit said
in the context of a decision applying the functional equivalent doctrine to EPA's cancellation of most
uses of DDT, "We are not formulating a broad exemption from NEPA for all environmental agencies or
even for all environmentally protective regulatory actions of such agencies. Instead, we delineate a
narrow exemption from the literal requirements for those actions which are undertaken pursuant to
sufficient safeguards so that the purpose and policies behind NEPA will necessarily be fulfilled."352

In light of the Bureau of Land Management's recent statement that they may promulgate
regulations exempting the planning process under the Federal Land Policy and Management

349 See, 85 Fed. Reg. at 1695. 206 40 C.F.R.

§ 1500.1(b).

350 Portland Cement Ass 'n v. Ruckelhaus, 486 F. 2d 375 (D.C. Cir. 1973).

351 State of Alabama ex rel. Siegelman v. U.S. EPA, 911 F.2d 499 (11th Cir. 1990). 209 Colloquy between Senator
Boggs and Senator Muskie, differentiating between "what we might call the environmental impact agencies rather
than the environmental enhancement agencies ", identifying as the later the Federal Water Pollution Control
Administration and the National Air Pollution Control Administration, later subsumed into EPA, 115 Cong. Rec.
40425 (December 20, 1969).

352 Environmental Defense Fund v. EPA, 489 F.2d 1247, 1257 (D.C. Cir. 1973).

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Act from NEPA,353 it is important to understand that when the Senate deliberated on the
passage of NEPA, they were fully cognizant of the "procession of landmark conservation
measures on behalf of recreation and wilderness, national recreational planning, national
water planning and research . . . urban planning for open space . . ." and other related
measures.354 However, Congress also perceived a "very real reason for concern" given the
absence of an environmental policy that applied to all federal agencies and a procedure that
would be used by "all agencies and all Federal officials with a legislative mandate and a
responsibility to consider the consequences of their actions on the environment. This would be
true of the licensing functions of independent agencies as well as the ongoing activities of the
regular Federal agencies."355

Courts have rejected attempts by other agencies to utilize the functional equivalence doctrine,
including attempts by the Forest Service for timber harvests,356 the U.S. Fish and Wildlife Service for
sport hunting regulations in national wildlife refuges around the country,357 and the National Marine
Fisheries service for issuance of permits under the Marine Mammal Protection Act.358 As the District
Court in Alaska said in the latter decision:

The mere fact an agency has been given the role of implementing an environmental statute is
insufficient to invoke the 'functional equivalent' exception. To extend the doctrine to all cases
in which a federal agency administers a statute which was designed to preserve the
environment would considerably weaken NEPA, rendering it inapplicable in many situations.
Given that NEPA requires that 'all agencies of the Federal Government' shall 'to the fullest
extent possible' incorporate the EIS into their decision making, it is clear Congress did not
intend this result. See 42 U.S.C. §4332.359

CEQ now proposes to go far beyond Congress' intent and case law and open functional equivalence to
every agency in the government, regardless of their mission. This is a prescription for a complete lack
of predictability with agencies able to create ad hoc processes on a case by case basis. A less efficient
way to manage the environmental review process can scarcely be imagined. This proposal should be
withdrawn.

G. Proposed § 1506.9 - Use of functional equivalence doctrine for proposed regulations and
Proposed § 1502.4. Deletion of regulations as a type of action appropriately subject to
preparation of a programmatic EIS.

353 https://thehill.com/policv/enersv-environment/481477-blm-weishs-cuttins-environmentalreview-when-craftins-
public-lands.

334 Report of the Senate Committee on Interior and Insular Affairs to accompany S. 1075, No. 91296, July 6, 1969, p.
14.

355 Id.

336 Texas Committee on Natural Resources v. Bergland, 573 F.2d 201, 208 (5th Cir. 1978), reh 'g denied, 576 F.2d
931 (5th Cir. 1978).

357 Fund for Animals v. Hall, 448 F. Supp. 2d 127, 134 (D.D.C. 2006).

358 Jones v. Gordon, 621 F. Supp. 7, 13 (D Alaska 1985), aff'd in part, rev'd in part, 792 F.2d 821 (9th Cir. 1986).

359 Id. at 13.

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We strongly oppose proposed Section 1506.9 that authorizes the blanket utilization of other
processes to replace the NEPA process for proposed regulations. CEQ's stated rationale for this revision
is that it would "promote efficiency and reduce duplication in the assessment of regulatory
proposals."218 To the contrary, the proliferation of a variety of processes would promote inefficiency.
The proposed change is also unlawful.

There is no doubt that proposed regulations are actions for purposes of NEPA.219 The question,
then, becomes why CEQ would seek to substitute other processes for the NEPA process for this entire
class of actions. To the extent that any other processes applicable to rulemaking contain similar
requirements as the NEPA process, just as for all other actions subject to NEPA, CEQ has consistently
directed the NEPA process to be integrated into those processes. The current regulations themselves
direct agencies to prepare draft EISs "concurrently with and integrated with" environmental impact
analyses and other requirements of other laws and executive orders "to the fullest extent possible".220

CEQ has emphasized the need for agencies to comply concurrently, rather than sequentially,
with all applicable requirements for a proposed action for many years. For example, CEQ's Final
Guidance on Improving the Process for Preparing Efficient and Timely Environmental Reviews Under
the National Environmental Policy Act221 states in relevant part that:

Agencies must integrate, to the fullest extent possible, their draft EIS with environmental
impact analyses and related surveys and studies required by other statutes or Executive
Orders. Coordinated and concurrent environmental reviews are appropriate whenever other
analyses, surveys, and studies will consider the same issues and information as a NEPA analysis.
Such coordination should be considered when preparing an EA as well as when preparing an
EIS. Techniques available to agencies when coordinating a combined or a concurrent process
include combining the scoping, requests for public comment, and preparation and display of
responses to public comments, [fn. 61. 40 CFR 1502.25(a). Examples provided in the Regulation
are: The Fish and Wildlife Coordination Act (16 U.S.C. 661 etseq.); the

218 85 Fed. Reg. at 1,705.

219 Indeed, one of the earliest appellate court decisions interpreting NEPA dealt with proposed
regulations, Calvert Cliffs' Coordinating Committee v. U.S. Atomic Energy Commission, 449 F.2d
1109 (D.C. Cir. 1972), cert, denied, 404 U.S. 942 (1972). See also, New York v. U.S. Nuclear
Regulatory Comm 'n, 824 F.3d 1012 (D.C. Cir. 2016); Humane Soc. of U.S. v. Johanns,

520 F. Supp. 2d 8 (D.D.C. 2007), American Public Transit Ass 'n v. Goldschmidt, 485 F. Supp. 811 (D.D.C.
1980), rev'd on other grounds, 655 F.2d 1272 (D.C. Cir. 1981).

219 40 C.F.R. § 1502.25(a).

220 40 C.F.R. § 1502.25(a).

221 77 Fed. Reg. 14473 (March 12, 2012).

National Historic Preservation Act (16 U.S.C. 470 et seq.); and the Endangered Species Act (16
U.S.C. 1531 et seq.).]

The goal should be to conduct concurrent rather than sequential processes whenever
appropriate. In situations where one aspect of a project is within the particular expertise or

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jurisdiction of another agency an agency should consider whether adoption or incorporation by
reference of materials prepared by the other agency would be more efficient.

A coordinated or concurrent process may provide a better basis for informed decision making,
or at least achieve the same result as separate or consecutive processes more quickly and with
less potential for unnecessary duplication of effort. In addition to integrating the reviews and
analyses, the CEQ Regulations allow an environmental document that complies with NEPA be
combined with a subsequent agency document to reduce duplication and paperwork, [fn.62,
40 C.F.R.

15006.4, 1500.4(k), 15004(n).]360

There is no legal authority or justification for a wholesale substitution of any other process for
the NEPA process. Regulatory review and the NEPA process have fundamentally different
purposes. The details of the processes differ; for example, regulatory review has no
requirement for scoping, nor does it provide for public meetings held in affected communities.
Substituting the executive order-based regulatory impact analysis process for the statutorily
mandated NEPA process is unacceptable and this proposed regulation must not be carried
forward in any final rulemaking. Such a substitution would likely also eliminate judicial review
given that Executive Order 12866 and subsequent related executive orders, like most executive
orders, includes language that states that it is not enforceable by law.361 As one federal court
decision stated in response to an argument that the Administrative Procedures Act is sufficient
to replace NEPA because it affords public notice comment, "An exception of such staggering
breadth would render NEPA meaningless."224

Finally, regulations should be included in Section 1502.4(b) describing the types of actions that
are appropriately subject to preparation of a programmatic EIS.225

Neither of these proposed changes should go forward.

H. Proposed §1501.1(b) - NEPA threshold applicability analysis.

360 Id. at 14478-79. See also, Council on Environmental Quality and Governor's Office of

Planning and Research, State of California, NEPA and CEQA: Integrating Federal and State Environmental
Reviews" (February, 2014) for a step-by-step guide to how to integrate compliance with NEPA and a state
environmental quality review act to avoid duplication of both process and documentation.

361 E.O. 12866, 58 Fed. Reg. 51,735 (October 4, 1993) ("§10 Judicial Review. Nothing in this

Executive order shall affect any otherwise available judicial review of agency action. This Executive order is
intended only to improve the internal management of the Federal Government and does not create any right or
benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies or
instrumentalities, its officers or employees, or any other person"); E.O. 13563, 76 Fed. Reg. 3,821 (January 21,
2011) (supplementing EO 12866 and reading "§ 7(d)This order is not intended to, and does not, create any right or
benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its
departments, agencies, or entities, its officers, employees, or agents, or any other person"). 224 In re Polar Bear
Endangered Species Act Listing and 4(d) Rule Litigation, 818 F. Supp. 2d 214, 237 (D.D.C. 2011).

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This provision would allow federal agencies to make determinations about whether particular
actions are exempt from NEPA under one of the many theories discussed above either in their agency
NEPA procedures or an individual basis for a particular proposed action. First, we strongly disagree that
there are legally sound rationale for the proposed "exemptions" discussed above. To the extent an
agency believes that there is a class of actions exempt from NEPA, the agency should identify that in its
draft NEPA procedures subject to public review and comment. Inviting this type of analysis on an ad
hoc basis invites behind-closed-door negotiations between agencies and project proponents and will
lead to confusion, inconsistency, and inefficiency as well as likely resulting in an unprecedented
proliferation of litigation.

V. FOR THOSE ACTIONS THAT WOULD REMAIN SUBJECT TO NEPA

UNDER THE PROPOSED REVISIONS, CEQ'S PROPOSAL WOULD ILLEGALLY
ELIMINATE KEY COMPONENTS OF EFFECTS ANALYSIS.

A. Proposed § 1508.1(g) - Cumulative Effects.

CEQ's shocking and arbitrary proposal to delete cumulative impacts from all levels of NEPA
analysis cannot stand. It is true, as the preamble states, that NEPA simply references environmental
impacts and effects and does not use the "terms direct, indirect and cumulative impacts." It also
doesn't contain the term "environmental impact statement," or, for that matter, the term "reasonably
foreseeable". However, Section 102(2)(C) of NEPA directs agencies to provide a "detailed statement"
on "the environmental impacts". It doesn't say a subset of impacts or impacts that are convenient to
analyze.

NEPA's legislative history is replete with references to the complexity of environmental
impacts, the consequences of "letting them accumulate in slow attrition of the environment" and the
"ultimate consequences of quiet, creeping environmental decline" - all of which pointed to the need
for an analysis of proposed impacts beyond the immediate, direct effects of an action226. For 50 years,
CEQ has interpreted the law to accomplish just that.

225 We have further comments on the treatment of programmatic EISs in the proposed revisions,
supra in Section IV (C).

226 115 Cong. Rec. 29070 (October 8, 1969); see also, report accompanying S. 1075, National
Environmental Policy Act of 1969, Senate Committee on Interior and Insular Affairs, July 9, 1969.

Within a few months of its establishment, CEQ explained that, "The statutory clause 'major
Federal actions significantly affecting the quality of the human environment' is to be construed by
agencies with a view to the overall, cumulative impacts of the action proposed (and of further actions
contemplated)."362363 It also explained that the requirement in Section 102(2)(C) of NEPA to identify

362 Council on Environmental Quality: Statements on Proposed Federal Actions Affecting the
Environment; Interim Guidelines, April 30, 1970, Section 5(b) (filed with Fed. Reg. May 11,

363 ), available in Environmental Quality, The First Annual Report of the Council on

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"the relationship between local short-term uses of man's environment and the maintenance and
enhancement of long-term productivity" in the detailed statement (now known as an EIS) required the
agency "to assess the action for cumulative and long-term effects from the perspective that each
generation is trustee of the environment for succeeding generations."364 CEQ has consistently
interpreted NEPA ever since then as requiring analysis and consideration of cumulative effects; indeed,
it has been a primary focus of CEQ's work. In 1973, CEQ's revised Guidelines repeated the statement
from the 1971 Guidelines with the additional admonition to agencies that:

In considering what constitutes major action significantly affecting the environment, agencies
should bear in mind that the effect of many Federal decisions about a project or complex of
projects can be individually limited but cumulative considerable. This can occur when one or
more agencies over a period of years put into a project individually minor but collectively major
resources, when one decision involving a limited amount of money is a precedent for action in
much larger cases or represents a decision in principle about a future major course of action, or
when several Government agencies individually make decisions about partial aspects of a
major decision. In all such cases, an environmental statement should be prepared if it
reasonable to anticipate a cumulatively significant impact on the environment from Federal
action365.

Federal courts recognized the importance of cumulative effects analysis long before CEQ's 1979
regulations. In 1975, the Court of Appeals for the Second Circuit reversed a lower court decision in part
on the grounds that the analysis in the EIS at issue evaluated only the effects of the particular proposed
action, a proposal for dumping two million cubic yards of polluted spoil in Long Island Sound.366 The
Court made it clear that the Navy should have considered the cumulative environmental impacts of
other closely related projects (e.g., the Corps' further deepening of the Thomas River channel, the
maintenance

of that channel, the dredging of the Thames by the Electric Boat
Division of General Dynamics and the Coast Guard's Thames River dredging project in its NEPA analysis.
Alluding to the legislative history referenced above, the Court pointed out that:

As was recognized by Congress at the time of passage of NEPA, a good deal of our present air
and water pollution has resulted from the accumulation of small amounts of pollutants added
to the air and water by a great number of individual, unrelated sources. 'Important decisions
concerning the use and the shape of man's future environment continue to be made in small
but steady increments which perpetuate rather than avoid the recognized mistakes of previous
decades.' S. Rep. No. 91296, 91 Cong., 1st Sess. 5 (1969). NEPA was, in large measure, an
attempt by Congress to instill in the environmental decisionmaking process a more

Environmental Quality, 288 (1970) available at https://www.slideshare.net/whitehouse/ausustl970-environmental-
aualitv-the-first-annual-revort-of. The Interim Guidelines were published in final form with similar text. 36 Fed.
Res. 7.724 (April 23. 1971).

364 Id. at Section 7(a)(iv); see also. 42 U.S.C. § 4331(b)(1).

365 Council on Environmental Quality, Guidelines, Preparation of Environmental Impact Statements, 38 Fed. Reg.
20550, 20551 (August 1, 1973).

366 Natural Resources Defense Council v. Callaway, 524 F.2d 79, 87-90 (2nd Cir. 1975).

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comprehensive approach so that long term and cumulative effects of small and unrelated
decisions could be recognized, evaluated and either avoided, mitigated, or accepted as the
price to be paid for the major federal action under consideration, [cites omitted]. The fact that
another proposal has not yet been finally approved, adopted or funded does not foreclose it
from consideration, since experience may demonstrate that its adoption and implementation is
extremely likely.367

The Court explained that the fact that the other dredging projects in question had not been
proposed by the Navy and, in fact, had not yet been approved were not the deciding factors.
Rather, "all are to occur in the same geographical area, all are related in that they involve
dredging and disposal of spoil, all present similar problems of pollution, and the spoil from each
project is likely to be dumped in the New London area. Clearly the projects are closely enough
related so that they can be expected to produce a cumulative environmental impact which
must be evaluated as a whole."368

In 1976, the U.S. Supreme Court acknowledged the importance of cumulative impacts. While ruling
that in the particular situation at issue an EIS was not required, the

Court stated that, "when several proposals for coal-related actions that will have cumulative or
synergistic environmental impact upon a region are pending concurrently before an agency, their
environmental consequence must be considered together.369 The Court reasoned that "[o]nly through
comprehensive consideration of pending proposals can the agency evaluate different courses of

action."370371372

Given this long and consistent interpretation of NEPA, it likely surprised no one that CEQ included a
regulatory definition of cumulative effects235 when it promulgated the current regulations. In fact, at
the time the regulations were issued in final form in 1978, the preamble did not identify any comments
critical of the requirement to analyze cumulative effects.236 Similarly, cumulative effects were not the
subject of any of the "40 Most Asked Questions Regarding the NEPA Regulations."373

The Fifth Circuit Court of Appeals also provided important guidance to agencies by laying out a widely
accepted step-by-approach to analyzing cumulative effects in Fritiofson v. Alexander, a case involving
permits for dredging canals around West Galveston Island, Texas.238 The Court's direction was simple
to understand and feasible to follow, consisting of 1) identifying the area in which effects of the
proposed project will be felt; 2) identifying the impacts expected in that area from the proposed
project; 3) identifying past, present and reasonably foreseeable actions that have had or are expected

367 Id. at 88-89.

368 Id. at 89.

369 Kleppe v. Sierra Club, 427 U.S. 390, 410 (1976).

370 Id. (emphasis added).

371 C.F.R. § 1508.7.

372 Fed. Reg. 55978 (November 29, 1978).

373 Council on Environmental Quality, Forty Most Asked Questions Concerning CEQ's National Environmental
Policy Act Regulations, 46Fed. Reg. 18,026 (March 23, 1981).

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to have impacts in the same area; 4) identifying the expected impacts from these other actions, and 5)
considering the overall impacts that can be expected if the individual impacts are allowed to
accumulate.239

It is especially tragic that CEQ would attempt to abandon the requirement to analyze cumulative
effects even as our country and our world are increasingly experiencing the impacts of cumulative
change, for as one court stated, "the impact of greenhouse gas emission on climate change is precisely
the kind of cumulative impacts analyses that NEPA requires agencies to conduct."240 In fact, this
proposed and wrenching change in the NEPA process is so fundamental and so ill advised that one has
to ask why this is being proposed now. The preamble explanation is strikingly brief to justify the
removal of the most important requirements in the NEPA regulations. The preamble alludes primarily
to wanting agencies to focus their time and resources on the most significant effects rather than
producing "encyclopedic documents" that include irrelevant or inconsequential information.241 But the
direction to avoid producing encyclopedic documents and to focus on the most significant effects
simply mirrors CEQ's current regulations.242

In fact, contrary to the preamble's suggestion that the requirement to assess cumulative
impacts diverts agencies from focusing their time and resources on the most significant effects, leading
to excessively long documentation that includes irrelevant or inconsequential information, cumulative
effects analysis has lead to some important changes in agency decisionmaking. Sometimes cumulative
impacts are, in fact, the most significant effects of an action.

One example is the U.S. Forest Service's 2019 decision not to allow oil and gas leasing in the
Ruby Mountains of Humboldt-Toiyabe National Forest in Nevada, expressly based on its
analysis of cumulative impacts under NEPA. In response to a request from BLM to offer 52,533
acres of Forest Service lands in the Ruby Mountains for leasing, USFS initially proposed to make
the lands available for leasing, subject to stipulations to

238 Fritiofson v. Alexander, 772 F.2d 1225 (5th Cir. 1985), abrogated by Sabine River Auth. v. U.S.
Dep't of Interior, 951 F.2d 669 (5th Cir. 1992).

239 Id. at 1245. See also, Grand Canyon Trust v. FAA, 290 F.3d 339 (D.C. Cir. 2002).240 Center for
Biological Diversity v. National Highway Traffic Safety Administration, 508 F.3d 508 (9th Cir. 2007),
amended at 538 F.3d 1172 (9th Cir. 2008).

241 85 Fed. Reg. at 1708.

242 40 C.F.R. § 1500.1.

protect surface resources.374 Based on the analysis in an EA that the Forest Service prepared, the Forest
Supervisor concluded that, "Even with multiple No Surface Occupancy stipulations applied, the
cumulative effects would be noticeable. These effects include increased noise, dust and light pollution,
and disturbance to wildlife and fisheries. These adverse effects outweigh the benefits that could result

374 See USDA Forest Service, Ruby Mountains Oil and Gas Leasing Availability Environmental
Assessment, March 2019, at 8, available at

https://www.fs.usda.sov/nfs/11558/www/nepa/107601 FSPLT3 4630840.pdf and at Attachment E.

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from oil and gas development."375 The Forest Supervisor stated that his final decision to select the No
Leasing Alternative instead was based on the combined impact of a list of "primary factors" that
included these cumulative effects.376 Notably, these impacts were not only cumulative, but also
indirect effects in the Forest Service's view, as the EA stated: "For the majority of resources analyzed,
the effects from the leasing decision would be indirect since no ground disturbing activities are
authorized at the leasing stage."377 In sum, the analysis of indirect cumulative effects played a primary
role in reversing the Forest Service's position from proposing to allow leasing to instead making the
lands unavailable for oil and gas development.

Another example is the Tennessee Valley Authority's (TVA) 1993 decision to deny requests
from three companies separately seeking authorization to build barge terminals along a 12-mile stretch
of the Tennessee River in Alabama and Tennessee that would serve adjacent wood chip mills,378379
which was expressly based on the analysis of cumulative impacts in its final EIS. Chip Mill Terminals on
the Tennessee River—Record of Decision.248 TVA identified the no action alternative as the preferred
one "after weighing the potential benefits of the requests with the likelihood of substantial, cumulative
localized impacts and the risk of significant timber harvesting impacts." Id. at 28,431. The cumulative
impacts were traffic associated with the chip mills that would be served by the barge terminals. See id.
at 28,432-33 ("In addition to the potential risk of significant timber harvesting impacts, localized
impacts in the vicinity of the chip mill facilities themselves are of concern to TVA. TVA estimates that
the movement of logs into the three chip mills would add approximately 1,080 truck movements to the
daily average traffic flows in and around South Pittsburg. On State Route 156, approximately 93 trucks
per hour (or more than one per minute) would be added.... the potential cumulative localized impacts,
especially truck traffic impacts, are a serious concern."). Although TVA recognized that an action
alternative that required obtaining agreement from the state forestry agencies, the mill operators, the
forestry associations, and the timberland owners to employ better protective practices was
environmentally preferable, it was unable to obtain the necessary agreements, and therefore selected
the no action alternative. Id. at 28,431. Whereas the cumulative localized impacts were a key factor in
the decision, the final EIS specifically noted that the "localized environmental impacts associated with
each mill by itself are expected to be insignificant on an individual basis."380

Further, the TVA decision to deny the barge terminal authorizations also "weighed heavily" the
indirect effects on ESA-listed wildlife from increased timber harvesting associated with the three chip
mills. TVA explained that:

375 USDA Forest Service, Decision Notice and Finding of No Significant Impact for Ruby Oil and Gas Leasing
Availability Analysis, May 2019, at 3, available at

https.V/www.fs.usda.gov/nfs/l 1558/www/nepa/l 07601 FSPLT3 4646040.pdf and at Attachment D.

376 USDA Forest Service, Decision Notice and Finding of No Significant Impact for Ruby Oil and Gas leasing
Availability Analysis at 2-3.

377 USDA Forest Service, Ruby Mountains Oil and Gas leasing Availability Environmental Assessment, March
2019, at 15.

378 One of the companies was also seeking permission from TVA related to building a chip mill facility.

379 Fed. Reg. 28,429 (May 13, 1993). Available at Attachment F.

380 Tennessee Valley Authority, Final Environmental Impact Statement Chip Mill Terminals on the Tennessee
River, Feb. 1993, Volume 1, at 32. Available at Attachment G. 250 58 Fed. Reg. 28,432.

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Although TVA does not think that the Endangered Species Act precludes approving one or
more of the requests, TVA has weighed heavily the Service's technical determination of likely
impacts to listed species if harvesting occurs. TVA's own assessment of potential impacts to
listed species concluded that some species could be significantly impacted depending on where
and how timber harvesting may occur.250

Thus, even though TVA believed that its decision to deny the authorizations for the barge terminals
was not required by the ESA, the analysis of significant impacts of timber harvesting, along with the
analysis of localized cumulative impacts, were the driving factors that led TVA to select the no action
alternative.

Reference is also made in the preamble to the notion that determining the geographic and temporal
scope of such effects "has been difficult."381382 Agencies already need to determine the appropriate
geographic and temporal scope of all impacts, even for direct impacts. There is no explanation given as
to why the guidance CEQ has provided in the handbook on cumulative effects is inadequate or what
particular aspects of this work is the most challenging. Ironically, we note that E.O. 12866, "Regulatory
Planning and Review"252 which CEQ suggests might be used as a substitute for the NEPA process for
proposed regulations, requires agencies to assess the impact of cumulative regulations on a particular
business sector, communities and government entities.383

While federal courts have found some NEPA documents to be legally inadequate because of an
agency's failure to assess cumulative effects, the identified problems are quite amenable to being
addressed (and often are in revised documents). Common failures include presenting general, broad
statements "devoid of specific, reasoned conclusions"384 or identifying reasonably foreseeable actions
that will affect the same resource as the proposed action but then failing to actually do the analysis.255
More recently, federal courts have held that agencies have failed to meet the challenge of assessing the
incremental impacts of proposed oil and gas projects on climate change. For example, in its NEPA
analyses for oil and gas leasing on federal land in three western states, the Bureau of Land
Management's (BLM) documents acknowledged that the additional oil and gas wells it was considering
would contribute incrementally to total regional and global GHG emission levels.256 BLM declined to go
further, arguing that in order to analyze or disclose cumulative climate impacts the agency would have
to identify every past, present, or reasonably foreseeable project on earth to produce a separate
cumulative impact analysis. The reviewing court correctly stated that NEPA does not require that feat.
But as the court noted, there is often an option between global analysis and nothing, and here, the
court directed BLM to quantify emissions from individual leasing decisions when added to GHG
emissions from other BLM projects in the region and nation. "To the extent other BLM actions in the
region - such as other lease sales - are reasonably foreseeable when an EA is issued, BLM must discuss
them as well."257

381 Ibid, at 1708.

382 Fed. Reg. 51735 (October 4, 1993).

383 See id. § l(b)(ll).

384 Muckleshoot Indian Tribe v. U.S. Forest Service, 177 F. 3d 800, 811-12 (9th Cir. 1999)

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Neither the vague statements in the preamble nor the fact that agencies have lost some cases
because of their failure to follow the current regulation are justification for reversing CEQ's long held
position articulated through multiple notice and comment periods and upheld by dozens of court
opinions. CEQ's decision to bar consideration of cumulative effects will have real world environmental
consequences by thwarting the development of information that has in the past altered agency
decision-making. CEQ must withdraw this arbitrary proposal. If the agencies need further guidance on
how to analyze cumulative effects, CEQ can provide that guidance. But it cannot obliterate a fifty-
yearold legal requirement that is based on consistent interpretation of the law.

Additionally. CEQ asks whether it should codify any aspects of its proposed GHG guidance in the
regulation, and if so. how CEQ should address them in the regulations.

We do not think CEQ should include its proposed GHG guidance in the regulations in any form. The
courts have made it clear for many years that climate change is among the impacts to be assessed.258
CEQ's draft guidance fell woefully short of the mark in many respects. Among other problems, it
significantly failed to reflect relevant judicial decisions regarding issues such as quantification of GHG
emissions and analysis of the

255 See, e.g., Sierra Club v. U.S. Dept. of Agr., 116 F.3d 1482 (7th Cir. 1997) (unpublished table decision)
("the discussion fails to analyze the effects of the various activities in combination ... to determine
whether the sum of these incremental disturbances will create a significant detrimental effect.").

256 WildEarth Guardians v. Zinke, 368 F. Supp. 3d 41, 56 (D.D.C. 2019).

251 Id. at 77. See also, The Wilderness Society, "Measuring the Climate Impact of Trump's
Reckless Leasing of Public Lands," (July 16, 2019),

https://www.wilderness.org/sites/default/files/media/file/TWS%20Report Measuring%20the%20
climate%20impact%20of%20Trump%20reckless%20leasing July%202019.pdf (last accessed
July 28, 2019).

258 Mid States Coal, for Progress v. Surface Transp. Bd., 345 F.3d 520 (8th Cir. 2003); Border Power

Plant Working Grp. v. Dep't of Energy, 260 F. Supp. 2d 997 (S.D. Cal. 2003).
actual effects resulting from them, the scope of that analysis, upstream and downstream effects,
alternatives, cumulative effects analysis, the effects of climate change on vulnerable populations and
on the proposed action itself. We are including more comprehensive criticisms submitted during the
comment period on that draft guidance as part of the record with this letter.259

B. Proposed § 1508.1(g) - Indirect Effects.

CEQ's proposed deletion of the definition and references to indirect effects is unlawful and will
lead to confusion and litigation. Like cumulative effects, indirect effects have long been the subject of
CEQ direction and guidance and the need for agencies to analyze indirect or secondary effects has also
been the subject of numerous federal court decisions. Analysis of indirect effects is required whether
CEQ's regulations specify them or not.

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Along with the above-noted statements about cumulative effects, CEQ first addressed the need
to analyze indirect or secondary effects in the 1970 Interim Guidelines.260 Those guidelines explained
that, "Both primary and secondary significant consequences for the environment should be included in
the analysis". The example given of secondary effects - the implications of a proposed action for
population distribution or concentration and the effects of such a population change on resources such
as water and public services in the area, was included in the 1971 Guidelines.261 The 1973 Guidelines
expanded on this discussion by explaining that:

"Secondary or indirect, as well as primary or direct, consequences for the environment should
be included in the analysis. Many major Federal actions, in particular those that involve the
construction or licensing of infrastructure investments (e.g., highways, airports, sewer systems,
water resource projects, etc.), stimulate or induce secondary effects in the form of associated
investments and changed patterns of social and economic activities. Such secondary effects,
through their impacts on existing community facilities and activities, through inducing new
facilities and activities, or through changes in natural conditions, may often be even more
substantial than the primary effects of the original action itself. For example, the effects of the
proposed action on population and growth may be among the more significant secondary
effects. Such population and growth impacts should be estimated if expected to be significant
(using data identified as indicated in § 1500.8(a)(1) and an assessment made of the effect of
any possible change in population patterns or growth upon the resource base, including land
use, water, and public services, of the area in question."262

259 Letter from forty-one organizations in response to Docket No. 2019-0002, Attachment H.260 35 Fed.
Reg. 7390, 7391 (May 12, 1970).

261 36 Fed. Reg. 7724, 7725 (Apr. 23, 1973). ("Significant adverse effects on the quality of the human
environment include both those that directly affect human beings and those that indirectly affect
human beings through adverse effects on the environment.").

262 40 C.F.R. § 1500.8(a)(3)(ii) (1973).

CEQ succinctly explained the necessity and challenges of analyzing secondary, or what is now
called indirect impacts, in its Fifth Annual Report. In that report, CEQ pointed out that:

"Impact statements usually analyze the initial or primary effects of a project, but they very
often ignore the secondary or induced effects. A new highway located in a rural area may
directly cause increased air pollution as a primary effect. But the highway may also influence
residential and industrial growth, which may in turn create substantial pressures on available
water supplies, sewage treatment facilities, and so forth. For many projects, these secondary
or induced effects may be more significant than the project's primary effects."385

In the 1975 annual report, CEQ again pointed out that agencies needed to improve their
analysis of secondary impacts as those impacts were often the public's major concerns about

385 CEQ, THE FIFTH ANNUAL REPORT OF THE COUNCIL ON ENVIRONMENTAL QUALITY, 410-11 (1974).

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various types of development projects, transportation plans and projects involving social and
economic effects.386

After a discussion of CEQ's work in analyzing secondary effects of public infrastructure projects and
sponsoring studies to investigate better methodologies for prediction, CEQ stated that:

"While the analysis of secondary effects is often more difficult than defining the first-order physical
effects, it is also indispensable. If impact statements are to be useful, they must address the major
environmental problems likely to be created by a project. Statements that do not address themselves
to these major problems are increasingly likely to be viewed as inadequate. As experience is gained in
defining and understanding these secondary effects, new methodologies are likely to develop for
forecasting them, and the usefulness of impact statements will increase."387388389

CEQ then codified the current definition of indirect effects266 with no apparent objections or concerns
evidenced in the preamble to the current regulations regarding the definition.

Federal courts affirmed that NEPA requires agencies to consider indirect or secondary effects in long
before promulgation of the regulations. In City of Davis v. Coleman,267 the Court held that an EIS
prepared for a proposed highway interchange in a hitherto agricultural area did not meet NEPA's
requirements because it failed to analyze the growth-inducing effects of the proposed interchange.
Although the highway agencies maintained that the proposed interchange was for highway safety
reasons, there was considerable evidence leading the court to conclude that it was intended to help
support what was elsewhere in the record characterized as a "rapid change to urban development."390
The Court stated that:

"We think that this is precisely the kind of situation Congress had in mind when it enacted
NEPA: substantial questions have been raised about the environmental consequences of
federal action, and the responsible agencies should not be allowed to proceed with the
proposed action in ignorance of what those consequences will be. NEPA and CEQA require
that the interchange's environmental impact be studied and analyzed in good faith before
CDHW and FHWA decide whether the project is to be completed as planned, or to be modified
or abandoned."391

386 CEQ, THE SIXTH ANNUAL REPORT OF THE COUNCIL ON ENVIRONMENTAL QUALITY, 656 (1975).

387 Id. at 411.

388 C.F.R. § 1508.8(b) (2020).

389 F.2d 661 (9th Cir. 1975).

390 Id. at 674.

391 Id. at 675-76.

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Courts have been clear that when the record shows that growth-inducing impacts or other
indirect impacts are reasonably foreseeable, agencies must analyze these impacts.392393 Courts have
also been clear that the Supreme Court's holding in Department of Transportation v. Public Citizen271
did not obliterate the obligation to analyze indirect effects when they are reasonably foreseeable as a
result of an agency's proposed decision. For example, in Florida Wildlife v. U.S. Army Corps of
Engineers,212 the court found the Corps' reliance on DOT v. Public Citizen to be misplaced when the
Corps had jurisdiction over a development and the record showed that the proposed development was
explicitly anticipated to serve as a "catalyst for growth".394 Similarly, the D.C. Circuit held that FERC
should have considered potential downstream greenhouse gas emissions from power plants burning
natural gas supplied by the proposed pipeline when conducting its NEPA analysis.395

The justification for striking the terms "direct" and "indirect" and deleting the definition of
"indirect effects" from the regulations is as transparent and inadequate as the justification for deleting
the requirement to analyze cumulative effects. The rationale is simply that it is too hard. In fact, we
seriously disagree with that proposition.

To the extent agencies are truly having difficulty with how to go about assessing effects, CEQ should be
working on further guidance or workshops or whatever would be the best mechanism for transmitting
information on how to best and most efficiently meet the goals and requirements of the law. To the
extent the difficulties are either self-imposed (for example, by agencies feeling pressured to omit
references to climate change) or because they lack the capacity to prepare or oversee adequate NEPA
analyses, CEQ should also address those problems. We remind CEQ that lack of agency resources is not
a valid excuse for failing to comply with the law.396 But CEQ cannot arbitrarily delete requirements

392 Friends of the Earth, Inc. v. U.S. Army Corps ofEng'rs, 109 F.Supp.2d 30, 41 (2006) (holding that the Corps'
practice of issuing individual environmental assessments on floating gambling casinos along the Mississippi coast
without analyzing the indirect effects of what the Corps' did concede would likely be future development resulting
from the proliferating number of gambling barges along the coast).

393 U.S. 752 (2004). (It should be noted that the decision in Public Citizen also referenced with approval the
lead agency's assessment of cumulative effects); See also, id. at 769-70. 272 401 F. Supp. 2d 1298 (S.D. Fla.

2005).

394 Id. at 46. See also, Barnes v. U.S. Dep'tofTransp., 655 F.3d 1124 (9th Cir. 2011) (finding that the indirect
effects ofpermitting an additional runway at an airport 12 miles west of the City of Portland were so obvious that
the FAA had a responsibility to analyze them even absent a comment specifically identifying concerns regarding
"growth inducing effects.").

395 Sierra Club v. Federal Energy Regulatory Comm 'n., 867 F.3d 1357, 1374 (D.C. Cir. 2017) ("We conclude that
the EIS for the Southeast Market Pipelines Project should have either given a quantitative estimate of the
downstream greenhouse emissions that will result from burning the natural gas that the pipelines will transport or
explained more specifically why it could not have done so. "). See also, Wilderness Workshop v. U.S. Bureau of
LandMgmt., 342 F. Supp. 3d 1145 (D. Colo. 2018) ("BLMfailed, in part, to take a hard look at the severity and
impacts of GHG pollution. Namely, it failed to take a hard look at the reasonably foreseeable indirect impacts of oil
and gas.").

396 Pub. Emps. for Envtl. Responsibility v. U.S. Fish and Wildlife Serv., 177 F. Supp. 3d 146, 155

(D.D. C. 2016) ("The Court is aware of no case condoning an agency's failure to examine alternatives in an EA
solely on the ground of unavailability of resources. ").

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that would strip NEPA analyses down to solely direct effects, thereby recreating one of the
fundamental problems that NEPA was intended to address.

For all of the reasons stated above, we strongly oppose both the deletion of the definition of indirect
effects in CEQ's regulation and any possible attempt in the final regulation or future rulemaking to
affirmatively state that agencies are not required to analyze indirect effects. In fact, agencies are
required to analyze the full array of reasonably foreseeable impacts, including indirect effects, along
with direct impacts and cumulative impacts. The current regulatory provisions should stand.

C. Proposed § 1508.1(g) - Definition of "Effects or Impacts".

The proposed revision of the definition of effects directs agencies to focus their efforts on an
extremely narrow range of what effects would, under the proposed revision, remain to be analyzed
once cumulative and possibly indirect effects are eliminated.

In support of amending the definition of effects, CEQ cites two Supreme Court cases with distinct fact
patterns that apply proximate cause to NEPA cases.397398 As laid out below, the holdings of
Metropolitan Edison and Public Citizen narrowly apply to distinct factual scenarios and cannot be
extrapolated to all NEPA cases.

In Metropolitan Edison, the Supreme Court attempted to give greater context to the meaning of the
terms effects and impacts within NEPA.277 TheMetropolitan Edison plaintiffs challenged the proposed
restart of one of the reactors at the Three Mile Island Nuclear Power Plant and argued NEPA required
the Nuclear Regulatory Commission to consider the threats to the psychological health of residents in
an environmental impact statement.399 In describing the rationale for the effect and impact
requirements, the court described the requirements as "like the familiar doctrine of proximate cause
from tort law." 400 However, this description is dicta. The court's holding focused on the congressional
intent of promoting human welfare and effects on the physical environment.401 Given this, the court
concluded that fear of a nuclear accident did not have a sufficiently close connection to the physical
environment and NEPA does not apply. In making this ruling, the operative reasoning was not
proximate cause, but the lack of a sufficiently close connection to the physical environment.402

Lik e Metropolitan Edison, the facts of Public Citizen also involved unique circumstances. Public Citizen
involved rules issued by the Federal Motor Carrier Safety Administration (FMCSA) that concerned
safety regulations for Mexican motor carriers.403 After issuing the proposed rules, FMCSA issued a
programmatic environmental assessment and made a finding of no significant impact.404 Environmental

397 Dep't of Transp. v. Pub. Citizen, 541 U.S. at 766, (2004); Metro. Edison Co. v. People Against Nuclear Energy,
460 U.S. at 766.

398 U.S. at 774.

399 Id. at 768-69.

400 Id. at 774.

401 Id. at 773.

402 Id. at 778.

403 Pub. Citizen, 541 U.S. at 758-79.

404 Id.

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groups filed petitions for judicial review for FMCSA's rules and argued that the rules were promulgated
in violation of NEPA.405 Subsequently, the President lifted a moratorium on qualified Mexican motor
carriers and the court of appeals held the EA was deficient for not considering the environmental
impact of lifting the moratorium.285

In making the holding, the Public Citizen court quoted language in Metropolitan Edison
pointing to the proximate cause requirement in tort law. Ultimately, the court held the EA did not need
to consider the environmental effects arising from the entry of Mexican motor carriers. The main
reasoning behind this holding was not proximate cause, but that the lifting of the moratorium was a
result of the President's actions. The court concluded that FMCSA had no discretion to prevent the
entry of Mexican trucks and therefore did not need to consider the environmental effects in its EA.

Courts are reluctant to apply a proximate cause requirement to NEPA based on Metropolitan Edison
and Public Citizen. For example, in San Luis Obispo Mothers for

Peace v. NRC, 449 F.3d 1016, 1029, the Ninth Circuit declined to apply Metropolitan Edison and its
proximate cause analogy to its case. The Mothers for Peace court laid out a chain of three events at
issue: (1) a major federal action; (2) a change in the physical environment; and (3) an effect.406 The
court found that Metropolitan Edison was concerned with the relationship between events 2 and 3 (the
change in the physical environment and the effect), whereas the case at bar concerned the relationship
between events 1 and 2 (the major federal action and the change in the physical environment).407
Mothers of Peace demonstrates the narrow application of Metropolitan Edison to cases where the
impact is not on the physical environment and there is a missing link in the chain of causation.408409410

Public Citizen also has a narrow application. For example, in the 2019 decision in Birkhead v.
FERC,289 the D.C. Court of Appeals discussed FERC's claim that it need not consider downstream
greenhouse-gas emissions if it 'cannot be considered a legally relevant cause' of such emissions due to
lack of jurisdiction over any entity other than the pipeline applicant. The court stated:

But this line of reasoning [from Public Citizen] gets the Commission nowhere. . Because the
Commission may therefore 'deny a pipeline certificate on the ground that the pipeline would
be too harmful to the environment, the agency is a 'legally relevant cause' of the direct and
indirect environmental effects of pipelines it approves - even where it lacks jurisdiction over
the producer or distributor of the gas transported by the pipeline. . . . Accordingly, the
Commission is 'not excuse[d]

.. from considering these indirect effects'in its NEPA analysis.411

405 Id. 285 Id.

406 San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm 'n, 449 F.3d 1016, 1029 (9th Cir. 2006).

407 Id. at 1029-30 (citingMetropolitan Edison, 460 U.S. at 775 n.9).

408 Id. (citing No GwenAll. of Lane County, Inc. v. Aldridge, 855 F. 2d 1380, 1385 (9th Cir.

409 J J

410F.3d510 (D.C. Cir. 2019).

411 Id. at 519.

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Other courts recognize the limited application of Public Citizen and its holding.412413 The
proposed rule supports the changes using dicta from these two cases but ignores the fact
patterns and reasoning behind the holdings. Importantly, the case law cited in the preamble
represents narrow factual applications that do not provide an adequate legal basis for the new
definition of effects in the regulations. The current definition of effects should be retained.292

D. Proposed § 1508.1(aa) - Definition of "reasonably foreseeable".

CEQ proposes to adopt a definition of "reasonably foreseeable" as being "sufficiently likely to occur
such that a person of ordinary prudence would take it into account in reaching a decision."293 Although
the preamble does not specifically say so, we assume this is another attempt to graft tort law onto
NEPA law. In the context of tort law, however, the appropriate definition would specifically reference a
"reasonably prudent decision maker" and not an "ordinary person". Under the Restatement 2d of
Torts, "[i]f an actor has skills or knowledge that exceed those possessed by most others, these skills or
knowledge are circumstances to be taken into account in determining whether the actor has behaved
as a reasonably careful person."414

In the context of NEPA compliance, the decision maker is an actor with a high level of skills, which
would be taken into account when determining whether the duty to discuss impacts is present. In
other words, the reasonable person is a reasonable decision maker in the agency with the knowledge
and skills to evaluate the impacts. And that decision maker must remember that:

[t]he basic thrust of an agency's responsibilities under NEPA is to predict the environmental
effects of proposed action before the action is taken and those effects are known. Reasonable
forecasting and speculation is thus implicit in NEPA, and we must reject any attempts to shirk
their responsibilities under NEPA by labeling any and all discussion of future environmental
effects as 'crystal ball inquiry.' 'The statute must be construed in the light of reason if it is not
to demand what is, fairly speaking, not meaningfully possible. . . ' [cite omitted] But implicit in
this rule of reason is the overriding statutory duty of compliance with impact statement
procedures to 'the fullest extent possible.'415

We do not believe a definition of "reasonably foreseeable" is needed nor we do we believe that this
definition is either in conformance with the law nor helpful. It should not be retained.

412 Fla. Wildlife Fed'n v. United States Army Corps ofEng'rs, 401 F. Supp. 2d 1298, 1324-25 (S.D. Fla. 2005)
(rejecting reliance of Public Citizen where the agency has discretion to prevent or manage indirect effects); Sierra
Club v. Mainella, 459 F. Supp. 2d 76, 105 (D.D.C. 2006) (Public Citizen applies only to "situations where an
agency has 'no ability' because of lack of 'statutory authority' to address the impact") Humane Soc'y of the United
States v. Johanns, 520F. Supp. 2d8, 25-26 (D.D.C. 2007) ("The holding in Public Citizen extends only to those
situations where an agency has "no ability" because of lack of "statutory authority" to address the impact. NPS, in
contrast, is only constrained by its own regulation from considering impacts on the Preserve from adjacent surface
activities"). 292 40 C.F.R. § 1508.8 (2020).

413 Fed. Reg. at 1730.

414 Restatement (Third) of Torts: Phys. & Emot. Harm § 12 (2010).

415 Scientists' Institute for Public Information, Inc. v. Atomic Energy Comm'n, 481 F.2d 1079, 1092 (D.C. Cir.
1973).

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CEQ also asks for comments on whether to include in the definition of effects the concept that the
close causal relationship is "analogous to proximate cause in tort law." and if so. how CEQ could
provide additional clarity regarding the meaning of this phrase."

CEQ should not attempt further imposition of tort law in the context of its regulations implementing
NEPA. The two bodies of law have quite different purposes. Tort law is a system of determining
liability for harm that has already occurred. A fundamental purpose of NEPA and the NEPA process is
to predict and prevent harm. Given those differences, it is quite necessary for NEPA to require a
broader analysis of potential impacts than tort law's post-event analysis of causation. Imposing tort
concepts into NEPA law narrows the agencies' responsibilities and ultimately is likely to lead to the
harm to the environment and to present and future generations that NEPA seeks to prevent.

E. Proposed Deletion of Current Definition of Significance at 40 C.F.R. §1508.27 and Proposed § 1501.3
- Definition of Significance and Appropriate Level of NEPA Review.

416With one brief and unenlightening phrase in the preamble, "Because the entire definition of
significantly is operative language/'296 CEQ proposes to eliminate without further explanation the long-
standing factors of context and intensity and arbitrarily reference only a subset of the effects that are
cognizable under NEPA. If the goal of this exercise is to foster uncertainty and confusion, these
proposals are perfect. If, however, as articulated, the goal includes efficiency, these proposed changes
are about the most unproductive measures imaginable. The question of whether a proposed action
has

"significant impacts" is the single most common inquiry in the context of NEPA compliance. CEQ's
proposal to remove clear direction on this point and substitute poorly drafted, inadequate text is
irresponsible. For decades, agencies at all levels of government and the public at large have become
familiar with the current criteria for significance and used them systematically as a roadmap to
evaluate a proposed action. Courts have also used the criteria as a guide.417

CEQ fails to justify its proposed change from its well-established previous position. How does the
notion that "significantly" is an operational term in NEPA eliminate the need for regulatory direction on
how the term should be interpreted? Further, the one brief sentence in the preamble directs the
reader to proposed §1501.4 for a further discussion of significance. Proposed §1501.4 addresses
categorical exclusions. We assume that the reference is meant to be to proposed § 1501.3 that
discusses "the appropriate level of NEPA review".418 However, that proposed regulation is similarly
inadequate. The preamble acknowledges that "significance" is "central to determining the appropriate
level of review". But CEQ proposes to "simplify" the definition by omitting "context" and intensity",
two key terms with decades of utilization, and substituting ""the potentially affected environment" for
context and nothing at all for "intensity" with no explanation of whether there is some difference in

416 Fed. Reg. at 1710.

417 For instance, in Friends of Back Bay v. U.S. Army Corps ofEng 'rs, the court considered these factors in
determining that consideration of a proposal that would impact an estuary designated as nationally significant by
the EPA required preparation of an E1S. 681 F.3d 581, 589 (4th Cir. 2012). Similarly, in Fund for Animals v.
Norton, the court used these factors to determine that preparation of an E1S was required before authorizing a
permit to the state of Maryland to manage the population of mute swans. 281 F. Supp. 2d 209 (D.D.C. 2003).

418 Id. at 1714.

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meaning intended by the change in terms for "context" and and no substitute for "intensity".419
Proposed §1501.3 then goes on to identify only two types of effects in this section. Specifically, the
proposed revision omits or weakens (with no explanation in the majority of instances) the following
criteria that are in CEQ's current regulation in the definition of "significantly":

The following should be considered in evaluating intensity:

(1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the
Federal agency believes that on balance the effect will be beneficial.

(3) Unique characteristics of the geographic area such as proximity to historic or cultural
resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical
areas.

(4) The degree to which the effects on the quality of the human environment are likely to be
highly controversial.

(5) The degree to which the possible effects on the human environment are highly uncertain
or involve unique or unknown risks.

(6) The degree to which the action may establish a precedent for future actions with
significant effects or represents a decision in principle about a future consideration.

(7) Whether the action is related to other actions with individually insignificant but
cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively
significant impact on the environment. Significance cannot be avoided by terming an action
temporary or by breaking it down into small component parts.

(8) The degree to which the action may adversely affect districts, sites, highways, structures,
or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss
or destruction of significant scientific, cultural, or historical resources.

(9) The degree to which the action may adversely affect an endangered orthreatened species
or its habitat that has been determined to be critical under the Endangered Species Act of 1973.

(10) Whether the action threatens a violation of Federal, State, or local law or requirements
imposed for the protection of the environment.300

Out of these ten factors for agencies to consider, CEQ weakens the first by deleting the second
sentence explaining that a significant impact may exist even if the Federal agency official believes "that
on balance the effect will be beneficial,"301 and weakens the last consideration by changing "threatens
a violation" to "violates" and then states affirmatively that there is no need to try to reconcile any such
differences.302 It completely abandons historic or cultural resources, park lands, prime farmlands,
wetlands, wild and scenic rivers and ecologically critical areas, highly controversial effects, highly

419 Id. at 1695.

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uncertain, unique or unknown risks, precedential action, cumulatively significant impacts, significant
scientific, cultural, or historical resources, endangered and threatened species and their habitat. In
short, CEQ proposes to abandon seven of the criteria entirely, and weaken two of them, leaving only
public health and safety intact. Are agency officials now supposed to assume that impacts on air,
water, soil, wildlife, historic and cultural resources, aesthetic values, social effects, are now not to be
evaluated for significance? This is both illogical

300 40 C.F.R. §1508.27(b).

301 40 C.F.R. § 1508.27(b)(1).

302 Proposed 40 C.F.R. § 1506.2(d).

and unlawful. Congress made it clear that consideration of all of the factors currently listed in the
effects definition is part of the federal government's continuing responsibility.303 What is the rationale
for removing them as criteria for significance?

Astonishingly, the preamble only explains the deletion of two of these factors. First, CEQ states that it
is removing controversy as a consideration "because this has been interpreted to mean scientific
controversy".304 But CEQ never explains why scientific controversy isn't worthy of being a
consideration in determining the significance of the effects of a proposed action. In fact, the current
regulation already makes it clear that the controversy referenced is controversy about the effects and
not about the action itself. What is the rationale for removing this factor?

Additionally, CEQ states that it did not include the seventh factor in the current regulation, dealing
with individually insignificant but cumulatively significant impacts because it is addressed in two other
regulations. But those regulations deal with scoping and EISs respectively, not the threshold question
of whether an EIS is needed in the first place. Further, only a portion of the current criteria is
addressed in those other sections while all references to cumulatively significant impacts are deleted.
The preamble fails to note this. The preamble also fails to address any reason at all for removal of
criteria (3), (4), (6), and (8), (9).

The current definition of "significantly" is extremely useful and should be retained.

F. The Proposed Revisions Gut the Alternatives Requirement - the Heart of the NEPA Process.

Two statutory provisions of NEPA clearly state that the required analysis must include: "a detailed
statement by the responsible official on .. . alternatives to the proposed action"305 and that agencies
must "study, develop, and describe appropriate alternatives to recommended courses of action in any
proposal which involves unresolved conflicts concerning alternative uses of available resources".306
These requirements are essential to NEPA's purpose of ensuring informed decision-making. The
thoughtful and thorough consideration of reasonable alternatives ensures that federal agencies have
considered the information "before decisions are made and before actions are taken".307 A number of
key

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303 42 U.S.C. § 4331(b)

304 85 Fed. Reg. atl695; see also NPCA v. Babbitt, 241 F.3d 722, 736 (9th Cir. 2000) ("Agencies must
prepare environmental impact statements whenever a federal action is 'controversial/ that is, when
'substantial questions raised as to whether a project may cause significant degradation of some
human environmental factor/ . . . cites omitted. A substantial dispute exists when evidence, raised
prior to the preparation of an EIS or FONSI ... casts serious doubt upon the reasonableness of an
agency's conclusions") (citations omitted); Sierra Club v. Bosworth, 510 F.3d 1016, 1032 (9th Cir.
2007).305 42 U.S.C § 4332(C)(iii). 306 42 U.S.C. § 4332 (E).

307 40 C.F.R. § 1500.1(b).

changes make clear that CEQ intends to downgrade the importance of alternatives. 420The proposed
changes below particularly highlight this diminished, crabbed approach:

Proposed §1502.14 - Heart of the EIS Process.

CEQ begins its proposed revisions in this section by ripping from the current regulation the
statement that alternatives are "the heart of the environmental impact statement."308 The original
phrase is there for a reason.421 Without a robust analysis of alternatives, the NEPA process becomes a
process documenting the effects of a "done deal" rather than contributing to a decisionmaking process.
There is no explanation in the preamble of why CEQ is proposing to delete the phrase.422Deleting this
phrase signals to agencies and to the public CEQ's intent to downgrade the importance of alternatives
and many of the other changes to this key regulation substantiate that intent.

1. Proposed §1502.14(a) - "Rigorously explore and objectively evaluate all
reasonable alternatives".

The proposed text would (1) eliminate the direction to "rigorously explore and objectively
evaluate" alternatives and, (2) would eliminate "all" before the phrase "reasonable alternatives." The
deletion of "rigorously explore and objectively evaluate" is another example of downgrading the
importance of the alternatives analysis. CEQ has directed agencies to rigorously explore and objectively
evaluate alternatives since at least April, 1970. 423424 The deletion of that direction does not "simplify
and clarify" the regulations, as the preamble suggests,312 but rather weakens them.

The preamble also states that CEQ's proposes to delete "all" in this sentence because "NEPA
itself provides no specific guidance concerning the range of alternatives an agency must consider." But
the preamble cites the very guidance CEQ issued to interpret the alternatives requirement in 40 C.F.R. §
1502.14 as the rationale for amending 40 C.F.R. §1502.14. As the very first question in CEQ's 40 Most

420 C.F.R. § 1502.14.

421 In fact, many years before promulgation of the current CEQ regulations, a court characterized alternatives as
the "linchpin " of the impact statement - a less elegant, but similar way of making the same point. Monroe County
Conservation Council, Inv. v. Volpe, 472 F.2d 693, 697 (2d Cir. 1972).

422 See 85 Fed. Reg. at 1701-02.

423 Council on Environmental Quality: Statements on Proposed Federal Actions Affecting the Environment; Interim
Guidelines, April 30, 1970, Section 7(a)(iii), supra atfh. 92.

424 Fed. Reg. at 1701.

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Asked Questions document makes clear, the interpretation of the alternatives requirement is informed
by the rule of reason and has never required agencies to examine, for example, every single possible
iteration of an alternative. 425 There is no need to drop "all" from the direction to analyze "all
reasonable alternatives." Doing so would send a signal that the requirement to fully analyze and
consider all reasonable alternatives, including those identified and presented in a timely manner from
the public, is now less than it once was.426427

Deletion of 40 C.F.R. § 1502.14(c) - Reasonable alternatives not within the jurisdiction
of the lead agency.

Once again, CEQ proposes to overturn a principle established long before the current NEPA
regulations were promulgated by entirely removing the requirement for an agency to consider
reasonable alternatives to the proposed action not within its own jurisdiction. The issue of whether
Congress intended to bound an agency's responsibility to analyze alternatives by its jurisdiction was
decided early in NEPA's history. In the landmark case of Natural Resources Defense Council v.
Morton,315 the Court of Appeals for the District of Columbia considered whether the Department of the
Interior was obliged to consider an alternative outside of its jurisdiction in the context of an EIS
prepared for a proposed off-shore oil and gas lease sale off the coast of eastern Louisiana.428 As the
court noted, the proposal was responsive to President Nixon's directive on supply of energy.
Alternatives analyzed within the EIS focused on possible changes to the proposed offering that would
help mitigate environmental impacts.

Plaintiffs had argued that the EIS should include an alternative of eliminating oil import quotas.
Department of the Interior officials rejected this idea, arguing in the EIS that such an alternative
involved many complex factors and concepts, including foreign affairs and national security. Further,
the Department officials argued that the alternatives required under NEPA were only those alternatives
that could be adopted and implemented by the agency issuing the EIS.

The Court understood that NEPA's broad purposes did not support this narrow approach. In reflecting
on NEPA's legislative history and statutory language, it said:

What NEPA infused into the decisionmaking process in 1969 was a directive as to
environmental impact statements that was meant to implement the Congressional objectives
of government coordination, a comprehensive approach to environmental management, and a
determination to face problems of pollution 'while they are still of manageable proportions and
while alternative solutions are still available' rather than persist in environmental decision-
making wherein 'policy is established by default and inaction' and environmental decisions

425 Council on Environmental Quality, "Forty Most Asked Questions Concerning CEQ's National Environmental
Policy Act Regulations", 46 Fed. Reg. 18026, 18026-27 (March 23, 1981).

426 See, e.g., Colo. Envtl. Coal. v. Salazar, 875 F. Supp. 2d 1233 (D. Colo. 2012), in which the Court found that the
Bureau of Land Management failed to analyze a reasonable "community alternative. "

427F.2d827 (D.C. Cir. 1972).

428 The lower court had enjoined the proposed sales, Nat. Res. Def. Council, Inc. v. Morton, 337 F. Supp. 165
(D.D.C.), supplemented, 337 F. Supp. 167 (D.D.C. 1971), and the government appealed that decision.

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'continue to be made in small but steady increments' that perpetuate the mistakes 429of the
past without being dealt with until 'they reach crisis proportions.'317

Given this background, the court felt that it would be "particularly inapposite" for the Department to
limit its analysis of alternatives by jurisdictional lines of authority. The issue of energy supply was a
national one with a broad scope, broader than that of any one particular entity in the federal
government. The court held that, "When the proposed action is an integral part of a coordination plan
to deal with a broad problem, the range of alternatives that must be evaluated is broadened."430

While it was true that the Department of the Interior did not have the authority to modify or eliminate
oil import quotas, the court noted that both the Congress and the President did have such authority. A
broad examination of alternative ways of fulfilling a goal would be useful, not just for the "exposition of
the thinking of the agency" but also for the guidance of other decision-makers who would be provided
with the environmental effects of all reasonably achievable alternatives.

Finally, the court noted that there were pragmatic ways to address concerns about the challenge of
analyzing alternatives outside of an agency's jurisdiction. In a frequentlyquoted discussion, the court
stated:

We reiterate that the discussion of environmental effects of alternatives need not be exhaustive.

What is required is information sufficient to permit a reasoned choice of alternatives so far as
environmental aspects are concerned. As to alternatives not within the scope of authority of the
responsible official, reference may of course be made to studies of other agencies - including other
impact statements431. Nor is it appropriate, as Government counsel argues, to disregard alternatives
merely because they do not offer a complete solution to the problem. If an alternative would result in
supplying only part of the energy that the lease sale would yield, then its use might possibly reduce the
scope of the lease sale program and thus alleviate a significant portion of the environmental harm
attendant on offshore drilling.320

As CEQ explained in its guidance about this requirement:

An alternative that is outside the legal jurisdiction of the lead agency must still be
analyzed in the EIS if it is reasonable. A potential conflict with local or federal law does
not necessarily render an alternative unreasonable, although such conflicts must be
considered. Section 1506.2(d). Alternatives that are outside the scope of what
Congress has approved or funded must still be evaluated in the EIS if they are

429 f 2d at 836 (quotingS. Rep. No. 91-296, 91st Cong., IstSess. (1969), p. 5).

430 Id. at 835

431 The CEQ regulations explicitly permit adoption of other agencies' EISs, 40 C.F.R. § 1506.3, and
incorporation by reference of other publicly available material, 40 C.F.R. § 1502.21. 320 458 F.2d at 836.

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reasonable, because the EIS may serve as the basis for modifying the Congressional
approval or funding in light of NEPA's goals and policies. Section 1500.1(a).432433

In our collective experience, this issue tends to be raised more in the abstract than in the actual NEPA
administrative process. Most of the time, most of us are focused on reasonable alternatives that are
within the lead agency's jurisdiction. But there are situations in which it is reasonable to evaluate
alternatives outside of an agency's jurisdiction. CEQ's preamble actually cites two such examples -
when preparing a legislative EIS and to respond to specific Congressional directives.322 But there are
also other times when it is reasonable to consider such alternatives. For example, in the context of the
NEPA process for a proposed land exchange between the Forest Service and Weyerhaeuser Co., the
Muckleshoot Indian Tribe raised the possibility of the Forest Service purchasing the land it desired
through the Land and Water Conservation Fund. Although the funds to do so would have had to have
been appropriated by Congress, the Forest Service could have made a request for them to do so. Given
that such an acquisition appeared compatible with the agency's goal, consideration of that alternative
was required.434 CEQ should not rescind this requirement.

CEQ also asked for comment on whether the regulations should establish a presumptive maximum
number of alternatives for evaluation of a proposed action, or alternatively for certain categories of
proposed actions. CEQ seeks comment on (1) specific categories of actions, if any, that should be
identified for the presumption or for exceptions to the presumption; and (2) what the presumptive
number of alternatives should be (e.g., a maximum of three alternatives including the no action
alternative).

CEQ should not establish a maximum number of alternatives for proposed actions or for certain
categories of proposed actions. There is neither a rationale nor legal support for such an approach.
Setting an artificial number could, on the one hand, encourage the development of 'strawman"
alternatives (that is, made up alternatives that are not actually reasonable but created for the sake of
having a certain number of alternatives) and, on the other, would certainly discourage legitimately
reasonable alternatives. It could certainly discourage development, analysis and consideration of
community-developed alternatives, an important mechanism for members of the public to
meaningfully and constructively engage in the NEPA process in a solutions-oriented fashion.

H. Proposed §1502.22 - Incomplete and Unavailable Information.

CEQ proposes two ill-advised and unsupported changes to this important section. First, it proposes to
remove the word "always" from the first statement in the current regulation that reads, "When an
agency is evaluating reasonably foreseeable significant adverse effects on the human environment in
an environmental impact statement and there is incomplete or unavailable information, the agency
shall always make clear that such information is lacking."324 The sole reason given in the preamble for

432 CEQ, Forty Most Asked Questions, Q. 2(b), 46 Fed. Reg. 18026 (Mar. 23, 1981).

433 Fed. Reg. at1702.

434 Muckleshoot Indian Tribe v. U.S. Forest Service, 177 F. 3d 800, 814 (1999).

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this proposed deletion is that the word "always" is "unnecessarily limiting".325 Indeed, the word
"always" is supposed to be prescriptive and that is precisely why it should stay in the regulation. As the
Court of Appeals for the D.C. Circuit made clear early in its consideration of NEPA's requirements, "one
of the functions of a NEPA statement is to indicate the extent to which environmental effects are
essentially unknown."326

This is no adequate justification proffered in the preamble as to why "always" should be deleted nor is
there is any indication of what criteria an agency should use to determine in what instances incomplete
or unavailable information about reasonably foreseeable significant adverse effects should, per the
proposed revision, not be identified. This proposed change runs counter to CEQ's avowed goal of
efficiency by creating uncertainty over when an agency has to make clear that such information is
lacking.

The second proposed change to this regulation is to replace the term "exorbitant" with
"unreasonable" in the portion of the regulation that excuses an agency from obtaining complete
information relevant to reasonably foreseeable significant adverse impacts. In other words, under the
current regulation, an agency has to obtain such information if that is possible unless the overall costs
of obtaining it are "exorbitant"; the proposed amendment would change the criteria to "unreasonable
costs." We oppose the change in terminology. "Exorbitant" is a term that is more objectively evaluated
than "unreasonable". The preamble cites no actual problems that the term "exorbitant" has caused
any

agencies.327

In both instances, the original language of 40 C.F.R. § 1502.22 should be retained.

CEQ also asks for comments on whether the 'overall costs' of obtaining incomplete or unavailable
information warrants further definition to address whether certain costs are or are not unreasonable.

The preamble cites no problems with implementation of the current language in the regulation. We
believe that language should be retained and that additional regulatory language on "overall costs" is
not needed.

I. Proposed § 1502.24 - Methodology and scientific accuracy.

CEQ proposes to amend this regulation by adding the astonishing statement that, "Agencies . . . are
not required to undertake new scientific and technical research to inform their analyses."

324 40 C.F.R. § 1502.22 (holding added).325 85
Fed. Reg. at 1703.

326 Scientists' Institute for Public Information, Inc. v. Atomic Energy Comm 'n, 481 F.2d 1079, 1092 (D.C.
Cir. 1973), cited in CEQ's preamble to the proposed revision of 40 C.F.R. § 1502.22, 50 Fed. Reg.

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32,234, 32,236 (Aug. 9, 1985) and the preamble to the final revised rule, 51 Fed. Reg. 15,618, 15,620
(Apr. 24, 1986).

327 85 Fed. Reg. at 1703.

NEPA's legislative history evidences a high degree of interest in scientific and technical research to
inform decisionmaking.435 And while there was increasing awareness in the late 1960's of the need for
much more scientific research on environmental issues, NEPA was unique:

An important difference between the proposals before the 90th Congress and the efforts and proposals
described in the preceding paragraphs is that in pending legislation the knowledge assembled through
survey and research would be systematically related to official reporting, appraisal and review. The
need for more knowledge has been established without doubt. But of equal and perhaps greater
importance at this time is the establishment of a system to insure that existing knowledge and new
findings will be organized in a manner suitable for review and decision as matters of public policy.436437

Indeed, the first mandate to agencies in NEPA is that "all agencies of the Federal Government shall ....
utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and
social sciences and the environmental design arts in planning and decisionmaking which may have an
impact on man's environment.330

Judicial decisions reflect the importance of obtaining information prior to making a decision, even if
that involves undertaking new scientific research. "NEPA requires each agency to undertake research
needed adequately to expose environmental harms."438 For example, when the National Park Service
proposed to significantly increase cruise ship traffic in Glacier Bay National Park and Preserve, the EA it
prepared to support that decision identified numerous gaps in information about the impacts on
marine mammals and other wildlife. There was evidence that there would be environmental effects
but uncertainty over the intensity of those effects. However, the agency issued a Finding of No
Significant Impact (FONSI). As the Court of Appeals for the 9th Circuit described the situation:

The Park Service proposes to increase the risk of harm to the environment and then perform its

study This approach has the process exactly backwards. See Sierra Club, 843 F.2d at

1995. Before one brings about a potentially significant irreversible change to the environment,
an EIS must be prepared that sufficiently explores the intensity of the environmental effects it
acknowledges. A part of the preparation process here could well be to conduct the studies
that the Park Service recognizes are needed

435 Lynton K. Caldwell, The National Environmental Policy Act: An Agenda for the Future, Indiana University
Press, pp. 55-58 (1998).

436 Lynton K. Caldwell & William J. Van Ness, A National Policy for the Environment, Special Report to the Senate
Committee on Interior and Insular Affairs, introduced by Senator Henry M. Jackson, Legislative History ofS. 1075,
Cong. Rec.-Senate, 29071, October 8, 1969.

437 U.S.C. § 4332(2)(A).

438 Save Our Ecosystems v. Clark, 747 F.2d 1240, 1248 (9th Cir. 1984).

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The Park Service's lack of knowledge does not excuse the preparation of an EIS; rather it

requires the Park Service to do the necessary work to obtain it.439

Obtaining new science in the context of NEPA can also be extremely useful in developing for
future proposed actions. For example, The Northwest Forest Plan requires the Forest Service to survey
for rare species, and to protect them with no-harvest buffers prior to implementing ground-disturbing
activities such as logging. These surveys are then used in the agency's effects analysis and the general
location, number, and prevalence of the species occurrence is disclosed to the public. In many cases,
citizens have collected survey data and provided it to the Forest Service for consideration during the
NEPA process. Often, the surveys and related effects analysis results in "new research" that not only
limits project effects (because acres are buffered from harvest), but also results in new information
about rare species that is relevant to future projects and scientific study more broadly.

The proposed amendment to Section 1502.24 is wrong as a matter of law and contrary to the
purpose and policies of NEPA. There is explanation for this proposed regulation in the preamble.333 It
must be withdrawn.

J. Proposed §§ 1501.4(a). 1508.1(d) - Categorical Exclusions Definition.

CEQ proposes to revise the definition of categorical exclusion (CE) by deleting the explanation
that these are categories of actions "which do not individually or cumulatively have a significant effect
on the human environment" and adding the word "normally". It also deletes the sentence in the
current definition that states that an agency may decide, in its procedures or otherwise, to prepare
environmental assessments to aid its compliance with NEPA even if the actions falls within a CE. All
three changes are problematic.

As explained earlier,440 cumulative impact analysis is an integral part of NEPA compliance and
cannot be ignored or removed. That is just as true in the context of an agency's promulgation of a CE
as it is for an EA or an EIS. For example, the Forest Service was required to take into consideration the
cumulative effects of promulgating a categorical exclusion for certain fuel reduction projects on
national forests.441 The notion that the agency might catch cumulative effects in the context of project
level analysis (presumably, as an extraordinary circumstance) was not adequate. The court pointed to
specific aspects of the CEthat could result in significant cumulative effects and held that "In order to
assess significance properly, the Forest Service must perform a programmatic cumulative impacts
analysis for the Fuels CE."442 The court stated that if "assessing the cumulative impacts of the Fuels CE

439NPCA v. Babbitt, 241 F.3d 722, 733 (9th Cir. 2001); see also Sierra Club v. Norton, 207F. Supp. 2nd 1310,
1335 (S.D. Ala. 2002) ("NEPA was designed to prevent uninformed action. . . . Defendant's argument in this case
would turn NEPA on its head, making ignorance into a powerful factor in favor of immediate action where the
agency lacks sufficient data to conclusively show not only that proposed action would harm an endangered
species, but that the harm would prove to be 'significant. "). 333 See, 85 Fed. Reg. at 1703.

440 Supra at Section V. (A).

441 Sierra Club v. Bosworth, 510 F.3d 1016 (9th Cir. 1007).

442 Id. at1029.

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as a whole is impractical, then use of the categorical exclusion mechanism was improper."443444445
Cumulative impacts must go back into the definition of a CE.

The addition of the word "normally" to the definition of a CE is also troublesome. The rationale
for this change given in the preamble is to take into account the possibility of extraordinary
circumstances that may require an agency to prepare an EA or an EIS. But that provision already exists
in the current definition338 so the need to change the definition and delete the specific reference to
extraordinary circumstances only to insert "normally" into it to reference what was deliberately deleted
is not well reasoned.339 A reader could easily interpret this change to indicate that the standard for a CE
has been changed and weakened. The current definition should be retained.

Finally, the preamble gives no reason for the deletion of the statement that agencies can
choose to do EAs even if an action might potentially qualify as a CE. We can think of no good reason for
this deletion ourselves. The sentence should be retained. K. Proposed § 1501.4(b)(1) - Extraordinary
Circumstances.

We are concerned with the proposed regulatory language and associated preamble language that
would authorize an agency to consider whether "mitigating circumstances or other conditions are
sufficient to avoid significant effects and therefore categorically exclude the proposed action."
Obviously, we want to see effects on resource conditions mitigated. However, doing so in the context
of a categorical exclusion allows an agency to essentially do the type of analysis that is required for an
EA without any public notice or involvement. If the proposed action truly will have no effect on a
particular resource, there should not be a need for analysis. If it appears that the proposed action may
have an impact on a resource, the agency should move to an EA. If it appears that it may have a
significant impact, the agency must do an EIS.446 This language should be withdrawn. L. Proposed §
1507.3(e)(5) - Borrowing Another Agency's CE.

This proposed provision would allow agencies to apply another agency's categorical exclusion. This is a
dangerous erosion of the whole concept of CEs which has always been based on each individual
agency's experience with its normal activities in its normal context and organization and based on its
administrative record.447

There is no reasonable legal or policy justification for this provision. CEQ has issued
comprehensive, detailed guidance on how to establish or revise a CE, how to apply CEs and how to

443 Id. at 1028.

444 C.F.R. § 1508.4 ("Any procedures under this section shall provide for extraordinary circumstances in which a
normally excluded action may have a significant environmental effect. ")

445 C.F.R. § 1508.4.

446 Citizens for Better Forestry v. U.S. Dept. of Agriculture, 481 F. Supp. 2d 1059, 1090 (N.D. Cal. 2007).

447 We note that CEQ does not propose that each agency be bound by other agency's categories of actions that
require the preparation of ElSs.

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conduct periodic reviews of CEs.448 The guidance also addresses an appropriate way to use another
agency's experience with a particular categorical exclusion.449

Clearly, given the number of CEs in the executive branch, it is simply not that difficult to go through the
regular process of documenting the justification for a CE, consulting with CEQ, going out for public
notice and comment and, as appropriate, finalizing the CE. We are already concerned that many CEs
rest on insufficient record and are subject to being misused. That concern is widespread.450 This
proposed endorsement of co-mingling CEs throughout the executive branch will exacerbate that
concern about misuse and abuse. Furthermore, as we discuss below,451 this proposal would enable an
agency to use a CE without even the minimal public notice provided in situations where agencies use
other agencies' analysis. CEQ should withdraw the regulation and disavow this direction in the
preamble.

Additionally, CEQ asks whether there are any other aspects of CEs that CEQ should address in its
regulations. Specifically. CEQ invites comment on whether it should establish government-wide CEs in
its regulations to address routine administrative activities, for example, internal orders or directives
regarding agency operations, procurement of office supplies and travel, and rulemakings to establish
administrative processes such as those established under FOIA. Alternatively. CEQ invites comment on
whether and how CEQ should revise the definition of major Federal action to exclude these categories
from the definition, and if so. suggestions on how it should be addressed.

Since its establishment, CEQ has avoided making determinations about the level of analysis
needed for specific categories of proposed actions and we would advise CEQ to maintain that posture
unless there is a compelling reason to do otherwise. No such reason has been cited here. In regards to
major Federal action, as discussed earlier, we oppose CEQ's unwarranted interest in reversing decades
of law and agency practice to impose a two-step process.

M. Proposed §§ 1501.6(a) and 1508.1(1) - Finding of No Significant Impact.

There is a discrepancy in the definition of a Finding of No Significant Impact (FONSI) between proposed
§ 1501.6(a), where it describes a FONSI as being appropriate when the proposed action is "not likely to
have significant effects" and the definition of a FONSI at § 1508.1(1) that correctly explains that a FONSI
briefly presents the reason why a proposed action will not have a significant effect. The provision in
§1501.6(a) needs to conform to the definition. There is no rationale or justification for changing the
phrase "will not" to "not likely". Since the preamble itself uses the "will not" construct in relationship

448 Council on Environmental Quality, "Establishing Applying, and Revising Categorical Exclusions under the
National Environmental Policy Act" (Nov. 23, 2010), httvs://cea. doe, sov/docs/cea-resulations-and-
suidance/NEPA CE Guidance Nov232010.pdf.

449 Id. at 9.

450 Daniel R. Mandelker, etal., NEPA Law and Litigation, § 7.17, "Categorical Exclusions - Use, abuse, and
proposals for reform, " Thomas Reuters (2019).

451 Infra at Section VI. (H).

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to the proposed § 1501.6(a) regulatory language,346 we trust this is a mistake that will be corrected if
and when the regulations become final.

N. Proposed §§ 1502.9(c)(4), 1507.3 - Changes to Proposed Action or New Circumstances and

Information Deemed Not Significant

A proposed addition to the current provisions for supplementing EISs would, as the preamble notes,
codify the existing practice of some federal agencies that prepare a nonNEPA document to determine
whether a supplemental NEPA analysis is required. We oppose those agencies' use of this type of
documentation. For example, the Bureau , avoid NEPA review and, in effect, to inappropriately justify a
distinct implementation-level "proposal" on the basis of an existing NEPA analysis developed for a
separate, typically programmatic level decision. For example, BLM has sought to use DNAs to justify
the sale of geographically discrete oil and gas leases on the basis of land use plan-level NEPA analyses.
But BLM's programmatic NEPA analyses—which can cover millions of acres— does not provide the
requisite site-specific analysis of impacts or consider alternatives calibrated to geographically specific
proposed oil and gas leases, including the option not to issue the oil and gas lease or to condition the
lease on site-specific stipulations or mitigation measures. A DNA, which is not a NEPA document,
cannot be used to provide for that analysis. It should therefore be no surprise that these DNAs—
because of conflicts with NEPA's statutory framework—have triggered litigation.

We have seen this attempted dodge of analysis before by agencies trying to rely on a
programmatic NEPA analysis that simply does not cover a proposed site-specific action. The DNA
process is simply putting a new label on it. To the degree that agencies think implementation-level
actions should not require further NEPA review, the proper course is not to contrive a new, non-NEPA
mechanism, but to correctly utilize the tiering process347 improve the robustness of programmatic
NEPA analyses that address these implementation-level issues in advance or to consider and justify
appropriate categorical exclusions.

346 85 Fed. Reg. 1684, 1698.

347 See Council on Environmental Quality, Effective Use of Programmatic NEPA Reviews,

December 18, 2014; available at https://ceq.doe.gov/docs/ceq-regulations-
andguidance/Effective Use of Programmatic NEPA Reviews Final Dec2014 searchable.pdf.

Similarly, for many years, some agencies, such as the U.S. Army Corps of Engineers, have
utilized a Supplemental Information Report (SIR) as a mechanism for evaluating new information
related to an action analyzed in an EIS. Except for new information that clearly has no potential for
significance relevant to environmental concerns or substantial changes related to the proposed action,
this type of analysis should be evaluated through the NEPA process. The analysis could be presented in
an EA available for public review or, of course, through a supplemental EIS. Further, an SIR is not an
appropriate place to present new analysis of information available at the time the original NEPA
documentation was provided. As one court explained:

The Forest Service may use a [supplemental information report] to analyze the significance of

information that is 'truly new'", but may not use a [supplemental information report' for

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information that it 'knew or should have known' at the time it prepared the original [NEPA
document]. It is 'inconsistent with NEPA for an agency to use [a supplemental information
report], rather than a supplemental [environmental assessment] or [environmental impact
statement], 'to add information it knew or should have known. Environmental consideration
documents must be 'prepared early enough so that [they] can serve practically as an important
contribution to the decisionmaking process and will not be used to rationalize or justify
decisions already made.'348

Generally, the default mechanism for evaluating new information, especially in the context of a
proposed action analyzed in an EIS, should be, at a minimum, an EA with public involvement. Agencies
continue to lose cases by relying on the very types of documents that CEQ proposes to authorize.349 A
brief EA with public involvement is the most appropriate and efficient way to assess the significance of
new information or changed circumstances.

O. Proposed § 1501.10 - Time Limits

CEQ proposes to set time limits of one year for preparation of an EA and two years for preparation of
an EIS. Time is to be measured from the date of a decision to prepare an EA to the publication of a final
EA or publication of a Notice of Intent (NOI) for an EIS until publication of a Record of Decision. A
senior agency official of the lead agency may approve a longer period based on certain enumerated
factors.350

348 Rock Creek Alliance v. U.S. Forest Service, 703 F. Supp. 2d 1152, 1180-81 (D. Mont. 2010).349 See,
e.g., Triumvirate LLC v. Bernhardt, 367 F. Supp. 3d 1011 (D. Alaska 2019) (in forgoing an EA, BLM
improperly relied on DNAto issue another outfitter's permit even though the permits would have had
similar effects); W. Watersheds Project v. Zinke, 336 F. Supp.3d 1204, 1212 (D. Idaho 2018) (enjoining
oil and gas leasing in sage grouse habitat via DNAs without additional public notice and comment);
Friends of Animals v. BLM, 232 F. Supp. 3d 53 (D.D.C. 2017) (approving use of DNA where the new
gather was part of an ongoing action in the same herd management area); Friends of Animals v. BLM,
2015 WL 555980 (D. Nev. 2015) (reliance on DNA violated NEPA where the new gather was an action of
different scope and intensity).

350 85 Fed. Reg. at 1717; proposed § 1501.10.

452There are several problems with this proposed regulation. First, the measurement of time for EISs is
glaringly wrong. An accurate assessment of how long an EIS takes should begin with the NOI and end
with the publication of the final EIS. The time period between publication of a final EIS and a Record of
Decision is not driven by NEPA, but rather by a variety of factors that the decision maker may or may
not even control. For example, there may be change in leadership and a change in policy direction or
direction to delay making certain decisions. A project proponent may ask for a "time out" because of
changed circumstances (including changed project economics). National security concerns may dictate

452 C.F.R. § 1610.5-2(a)(l).

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a different course of action. The possibilities are many, but they are not driven by NEPA since absent
the unusual circumstance of an agency being required to supplement a final EIS, there are no
procedural requirements under NEPA between a final EIS and the Record of Decision.

Second, the proposed regulation's use of the ROD as the end of the two-year period is arbitrary
because it will put at particular disadvantage those agencies that provide by regulation a pre-decisional
period in which draft decisions may be protested or objected to. Both the Forest Service and the
Bureau of Land Management have adopted such procedures as a way to identify areas of disagreement
with stakeholders, and to provide the agency an opportunity to modify draft proposals to reduce the
potential for future litigation. The purpose of increasing public support and reducing litigation would
seem to be one CEQ would support.

BLM regulations mandate that after a final EA or an EIS on a land use plan or amendment is
filed, the public has 30 days to file a protest.351 BLM regulations set no deadline for completion of
agency review of protests, stating only that "[t]he Director [of

BLM] shall promptly render a decision on the protest."453 BLM guidance states that "[i]t will be the
BLM's goal to resolve all protests within 90 days."454 Only "after protests are resolved" does BLM issue
a ROD.455 Thus, assuming that BLM prepares an EIS on a land use plan revision, agency regulations and
guidance anticipate that the pre-decisional administrative protest process will take 120 days, all of
which occur prior to the ROD's issuance.456 This post-analysis process thus could consume roughly one-
sixth (or more) of the entire two-year period the draft rule provides for an agency to complete the EIS
from notice of intent to ROD.

The Forest Service provides for pre-decisional challenges to agency decisions both at the plan
and project implementation level. Forest Service regulations permit interested parties to file written
objection to a new plan, plan amendment, or plan revision within 60 days of the proposed decision,
and following completion of the FEIS.457 The Forest Service "must issue a written response ... within 90
days," but "[t]he reviewing officer has the discretion to extend the time when it is determined to be
necessary to provide adequate response to objections or to participate in discussions with the

453 Id. § 1610.5-2(a)(3).

454 Bureau of Land Management, Land Use Planning Handbook, H-1601-1 (Mar. 11, 2005), at
Appendix E, page 1, available at

https://www.blm.sov/sites/blm.sov/files/uploads/Media Library BLM Policy Handbook h!601 -l.vdf (last viewed
Mar. 8, 2020).

455 Id. at Appendix F, page 20.

436 In practice, BLM can take many months to resolve all objections and issue a ROD. For example, BLM issued its
Final EIS and proposed Resource Management Plan for the

Uncompahgre Field office in June 2019; eight months later, the agency still has not ruled on the protests or issued a
ROD. See BLM, Uncompahgre Field Office Resource Management Plan webpage, available at
https://eplannins.blm. sov/epl-

frontoffice/eplannins/planAndProiectSite.do?methodName=dispatchToPatternPase¤tPaseId=8 6003 (last
viewed Mar. 8, 2020).

457 Id. § 219.56(a).

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parties."458 Thus, the time period between completion of a Forest Plan FEIS and a ROD can be 150 days
or longer, or more than 20% of the two-year period provided in the draft rule.

For projects implementing a forest plan, Forest Service regulations require the agency to
provide the public 30 days after the Final EIS to file a pre-decisional objection if the proposal is an
authorized hazardous fuel reduction project, and 45 days for all other projects.459 The Forest Service
has the following 45 days to issue a written decision, although the regulations permit "[t]he reviewing
officer... to extend the time for up to [an additional] 30 days when he or she determines that additional
time is necessary to provide adequate response to objections or to participate in resolution discussions
with the objector(s)."460 The Forest Service regulations do not require the Forest Service to issue the
ROD by a certain deadline after the objection decision is issued. All told, the Forest Service may take
120 days or longer after the FEIS is complete to issue the ROD.

By placing a two-year cap on the period between the Notice of Intent and the ROD, the
proposed rule may thus have the perverse effect of compressing the time to prepare NEPA analysis for
numerous BLM and Forest Service decisions when compared to other agencies who do not provide a
pre-decisional protest or objection period. We request that CEQ explain why it takes this position, and
that CEQ identify all agencies that have a predecisional protest, objection, or appeal period so that the
public and CEQ can understand the disparate (and so far undisclosed) impact of this proposed rule on
agencies with such processes.

A third problem is agency capacity. Today, many agencies lack sufficient capacity to
competently execute their NEPA responsibilities, whether preparing their own analyses and conducting
their own public involvement or overseeing contractors. In that context, forcing a "one size fits all"
timeframe will likely result in longer time periods before compliance is actually completed. Rushed
NEPA documents will result in badly flawed results, increased litigation, decreased agency credibility
with the public and distorted, poorly reasoned decisionmaking.

The exception to the proposed rule allowing for an extended period to be approved by a senior agency
official does not fix the problem. Understanding the pressure to produce faster and faster, agency staff
will be reluctant to even ask for an extension. Further, the criteria for a senior agency official to
consider regarding time period considerations360 have been revised to delete the time required for
obtaining information.361

This proposed regulation should be withdrawn.

P. Proposed §§ 1501.5(e). 1501.7. 1502.7 - Page Limits

While recognizing that the length of environmental review documents are influenced by, "the
complexity and significance of the proposed action and environmental effects the EIS considers,"362
CEQ proposes to afford agencies less flexibility to navigate these factors by setting more rigid

458 Id. § 219.56(g).

459 Id. §§ 218.7(c) (2) (iv) & 218.26(a).
460Id. § 218.26(b).

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"presumptive" page limits and adding more bureaucracy by adding a requirement for senior agency
officials to approve lengthier documents in writing. The additional requirement of written approval
only adds time to the environmental review process and does not serve CEQ's stated purpose of
advancing regulatory changes that will reduce delay. Additionally, if implemented as currently
proposed, it appears the preparers of an EIS may seek the additional pages late in the drafting process,
once it is realized it may not be possible to comply with the set limits. The time to consider and set
page limits reflecting the complexity of review is early in the process, which is why the current
regulations wisely encourage agencies to set page limits during the scoping process in § 1501.7.

The proposed regulation also fails to acknowledge the direction at both current and proposed 40
C.F.R. § 1502.25 regarding integration of an EIS with other information required by other
environmental review requirements.

CEQ should withdraw the proposed changes to page limits. To reduce the length of
environmental review documents, CEQ should retain the current flexibility of the regulations and focus
on ensuring agencies have the resources necessary to produce timely reviews.

V. CEQ PROPOSES A NUMBER OF CHANGES INTENDED TO ELEVATE THE ROLE
OF A PRIVATE SECTOR APPLICANT WHILE DIMINISHING THE ROLE OF THE PUBLIC.

A. Proposed § 1506.5(c) - Agency Responsibility for Environmental Documents.

This now misnamed section would reverse CEQ's prohibition against private sector applicants
preparing EISs for their own projects. It would also delete the current conflict of interest provisions
prohibiting consultants who have a financial interest or other interest

360 40 C.F.R. § 1501.8(b).

361 85 Fed. Reg. at 1717; also see, discussion proposed § 1502.24 362 85 Fed. Reg. at 1700.

in the outcome of the proposed action to prepare EISs for their own projects. The proposal attempts to
assuage concerns about the bias that would be introduced by requiring that the agency provide
guidance, participate in its preparation, independently evaluate the EIS and take responsibility for its
scope and content.

CEQ's preamble states that, "These changes are intended to improve communication between
proponents of a proposal for agency action and the officials tasked with evaluating the effects of the
action and reasonable alternatives, to improve the quality of NEPA documents and efficiency of the
NEPA process."461

461 Id. at 1705.

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In the immortal words of Ludovico Ariosto, "This dog won't hunt. This horse won't jump."462463 CEQ's
solicitude for contractor-agency communication is misplaced. The current regulations already direct
agencies to designate policies or staff to advise potential applicants of studies or other information
foreseeably required for later Federal action,365 to involve applicants to the extent practicable in
preparing environmental assessments,464 set time limits at the request of an applicant,367 assist the
applicant by outlining the types of information required,465 and specifically states that nothing is
intended to prohibit any agency from requesting any person to submit information to it or to prohibit
any person from submitting information to any agency.466 In short, it is hard to identify any barriers to
communication with an applicant. Importantly, CEQ neither identifies any such barriers nor explains
why this change is needed to improve communications.

This change would negate the purpose of EISs by allowing a biased party to conduct the analysis. CEQ
clearly understands the risks of conflict of interest because it previously published guidance
interpreting Section 1506.5(c) and the conflict of interest provision. That guidance addressed the
importance of this provision:

Some persons believe these restrictions are motivated by undue and unwarranted suspicion about the
bias of contractors. The Council is aware that many contractors would conduct their studies in a
professional and unbiased manner. However, the Council has the responsibility of overseeing the
administration of the National Environmental Policy Act in a manner most consistent with the statute's
directives and the public's expectations of sound government. The legal responsibilities for carrying out
NEPA's objectives rest solely with federal agencies. Thus, if any delegation of work is to occur, it should
be arranged to be

performed in as objective a manner as possible. Preparation of environmental impact
statements by parties who would suffer financial losses if, for example, a "no action"
alternative were selected, could easily lead to a public perception of bias. It is important to
maintain the public's faith in the integrity of the EIS process, and avoidance of conflicts in the
preparation of environmental impact statements is an important means of achieving this
goal.370

In that guidance, CEQ again stressed that there was no barrier to applicants communicating with
agencies by providing them with information, nor were consulting firms barred from competing
because they might have a future interest in the action.371 Thus, CEQ sought to walk a careful line
between balancing the public interest and acknowledging the role of outside consultants to
supplement the agency's capacity, or lack thereof to prepare EISs.

462 Ariosto, Ludovico, Orlando Furiorso, Canto VII (1532). See also, Jennings, Waylon, "That Dog Won't Hunt",
© Sony/ATV Music Publishing LLC (1986) ("You think you can say some words, take away the hurt, . . . But when it
ain't working out we got a saying down South, Baby that dog won't hunt").

463 C.F.R. § 1501.2(d)(1).

464 Id. § 1501.4(b). 367 Id. §

1501.8(a).

465Id. § 1506.5(a).

466 Id. § 1506.5(c).

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CEQ now proposes to erase that line entirely. It fails to address the complete elimination of the
conflicts of interest provisions in the regulations other than a vague reference to commenters urging
that CEQ allow "greater flexibility for the project sponsor to prepare NEPA documents." But CEQ never
explains why it proposed to reverse its position on conflict of interest and why it thinks doing so is in
the public interest.

In Davis v. Mineta,372 the Court of Appeals identified precisely the type of harm that can occur when
an applicant prepares a NEPA document. In that case, the applicant for several connected highway
projects hired a consultant to distribute an EA. The contract with the consultant also required that a
FONSI be signed and distributed by a date certain. The Court unsurprisingly found that the consultant
had an "inherent, contractually-created bias in favor of issuance of a FONSI rather than preparation of
an EIS."373

It is true that federal agencies themselves are proponents of actions for which they prepare EISs. State
and local governments may also act as both proponent and as a joint preparer under CEQ's current
regulations.374 But there is an important difference. The responsibility of government agencies is to
act in the public's interest. The responsibility of companies is to act in their shareholders' interest.

Both segments of society have legitimate - but quite different roles to play and NEPA law has
recognized that difference.

CEQ's proposes to eliminate the conflict of interest provision and in its place institutionally codifies an
inherent conflict of interest. This is counter to widely accepted ethical standards that restrict people
with a conflict of interest from influencing important government decisions. That is why senior level
federal government employees must file public financial disclosure statements and why conflicts of
interests are broadly interpreted and regulated by the Office of Government Ethics. Indeed, a federal
employee who fails to recuse him or herself from a particular matter if it would have a direct and
predictable

370 48 Fed. Reg. 34,263, 34,266 (July 28, 1983).

371 Id.

372 302 F.3d 1104 (10th Cir. 2002).

373 Id. at 1112.

374 40 C.F.R. § 1506.2.

effect on that employee's own financial interests or certain other financial interests that are 467treated
as the employee's own are subject to potential criminal prosecution.375 That is why there are rules
about judges recusing themselves from cases in which they have an interest468 and why the American
Bar Association's Model Rules of Professional Conduct, adopted by a number of jurisdictions, have
detailed rules and prohibitions related to conflict of interest.469 It is why responsible newspapers

467 U.S.C. § 208.

468 See 28 U.S.C. § 455for recusal rules for Supreme Court Justices, federal judges, and federal magistrate judges.

469 American Bar AssModel Rules of Professional Conduct, §§ 1.7 - 1.12.

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identify any conflict of interest inherent in their reporting, such as interests of their ownership. 470471
There are also important considerations regarding conflicts of interest in the medical field, especially
pharmaceutical industry, the financial industry and many other spheres of modern life. People
generally understand that no matter how good one's intentions are, self-interest is a powerful
motivation and that therefore, conflict of interest rules have an important public policy purpose. It is
difficult to think of any context in which conflicts of interest provisions have been eliminated once
imposed. CEQ should not aim at setting a precedent in this regard.

CEQ's proposal, if finalized, would undermine the integrity of the NEPA process. It should be
withdrawn.

B. Proposed § 1502.13 - Purpose and Need

CEQ proposes to reword the brief definition of purpose and need to highlight the needs of the
applicant and diminish the role of alternatives. Specifically, the definition would be altered to direct an
agency to base the purpose and need "on the goals of the applicant and the agency's authority." It also
changes the context for purpose and need from alternatives to the proposed action.379 Neither change
is acceptable.

The purpose and need of a proposed action is fundamentally related to the public purpose underlying
a federal agency's authority to act on a particular proposal. Every time a federal agency considers
whether to grant permit or license, approve funding or take some other federal action at the request of
an applicant, it does so because Congress decided there was a national interest in a federal agency
making a decision in the public's interest. The public interest is what the agency needs to be
considering when conducting a NEPA analysis, not the goals of the applicant.472

Obviously, the agency has to communicate with the applicant about the project, and as we have
discussed immediately above, there is no barrier to doing that. The agency needs to do due diligence
in understanding the applicant's purposes for the process to make sense.

In proposing this change, the preamble cites a 2003 letter sent by Chairman James

Connaughton to Secretary of Transportation Norman Mineta discussing CEQ's interpretation of
purpose and need.473 The specific quote utilized from that letter is that, "Thoughtful resolution of the
purpose and need statement at the beginning of the process will contribute to a rational environmental

470 See, e.g., Ethical Journalism, A Handbook of Values and Practices for the News and Editorial Departments, NEW
YORK TIMES, https://www.nytimes.com/editorial-standards/ethicaljournalism.html (last visited Mar. 4, 2020).

471 Fed. Reg. at 1720.

472 Obviously, the agency has to communicate with the applicant about the project, and as we have discussed
immediately above, there is no barrier to doing that. The agency needs to do due diligence in understanding the
applicant's purposes for the process to make sense.

473 Id. at 1701.

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review process and save considerable delay and frustration later in the decision[-]making process."474
We agree, especially given that the purpose and need statement frames the alternatives that an agency
evaluates. But what the letter does not do is support the notion of putting an applicant's needs up
front in the purpose and need statement. Indeed, the entire letter is in the context of transportation
projects where local and state governments have specific statutory roles in the planning process. It
does not address purpose and need in the context of an applicant from the private sector. But even in
the transportation context, the Connaughton letter cautions that agencies must not "put forward a
purpose and need statement that is so narrow as to 'define competing "reasonable alternatives" out of
consideration(and even out of existence)," Simmons v. U.S. Army Corps of Engineers, 120 F.3d 664 (7th
Cir. 1997); [see also,] Alaska Wilderness Recreation & Tourism Ass 'n v. Morrison, 67 F.3d 723 (9th Cir.
1995) "475476

Several federal court decisions have addressed the appropriate way to frame the purpose and need
when an agency is considering an application for a federal permit, approval or benefit of some sort.
For example, in Simmons v. U.S. Army Corps of Engineers, 384 the Corps argued that they were
restricted to analyzing the particular alternative that the applicant proposed. The Court disagreed and
explained that:

This is a losing position in the Seventh Circuit. . . . The general goal of Marion's application is to
supply water to Marion and the Water District -not to build (or find) a single reservoir to
supply that water. ... An agency cannot restrict its analysis to those 'alternative means by
which a particular applicant can reach his goals.' [cites omitted] This is precisely what the
Corps did in this case. The Corps has 'the duty under NEPA to exercise a degree of skepticism
in dealing with selfserving statements from a prime beneficiary of the project.'" [cite omitted]
And that is exactly what the Corps has not shown in its wholesale acceptance of Marion's
definition of purpose.477

In 478National Parks & Conservation Ass 'n v. Bureau ofLand Management,386 the proposed
action was construction of a landfill near Joshua Tree National Park. A land exchange with the Bureau
of Land Management ("BLM") was part of the applicant's plan. The purpose and need statement in
the EIS included three goals of the proponent and one goal of BLM. BLM did not dispute "that the
majority of these purposes and needs respond to Kaiser's goals, not those of the BLM."479 While the
court acknowledged that agencies had to consider the goals of a private applicant, it pointed out that
it "is a far cry from mandating that those private interests define the scope of the proposed

474 Id. (citing Letter from the Hon. James L. Connaughton, Chairman, Council on Environmental
Quality, to the Hon. Norman Y. Mineta, Secretary, Department of Transportation (May 12, 2003)

(' 'Connaughton Letter''), httvs://cea.doe.sov/docs/cea-resulations-and-suidance/CEODOT PurvoseNeed Mav-
2013.pdf.

475 Id.

476 F.3d 664 (7th Cir. 1997).

477 Id. at 669 (internal citations omitted).

478 F. 3d 1058 (9th Cir. 2010).

479 Id. at 1070.

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project."480 The Court held that the purpose and need statements unlawfully narrowed BLM's
examination of other alternatives to meet Kaiser's objectives and thus eliminated from analysis
reasonable alternatives that would have been responsive to BLM's own purpose and need. "The BLM
adopted Kaiser's interests as its own to craft a purpose and need statement so narrowly drawn as to
foreordain approval of the land exchange."481

These decisions make clear that an agency should not confine the purpose and need to an applicant's
goals. Rather, an agency should frame the purpose and need to be responsive to the public purpose as
well. Thus, the proposed revision of the purpose and need definition should not be finalized because it
unduly elevates the goals of an applicant over needs of the public. The current definition should be
retained.

C. Proposed § 1508.1(z) - Definition of "Reasonable Alternatives"

CEQ proposes to add a definition of "reasonable alternatives" to the regulations. The proposed
definition would, among other things, state that reasonable alternatives "meet the purpose and need
for the proposed action, and, where applicable meet the goals of the applicant."

Similar to our position on the insertion of the applicant's goals into the definition of purpose and
need, we oppose including an applicant's goals as an intrinsic criterion for the definition of "reasonable
alternatives." CEQ articulated the correct position in its "Forty Most Asked Questions", published
shortly after promulgation of the current regulations. In that guidance, in response to the question of
whether an agency had the responsibility for analyzing alternatives outside of the capability or the
applicant, CEQ stated:

Section 1502.14 requires the EIS to examine all reasonable alternatives to the proposal. In
determining the scope of alternatives to be considered, the emphasis is on what is
"reasonable" rather than on whether the proponent or applicant likes or is itself capable of
carrying out a particular alternative. Reasonable alternatives include those that are practical or
feasible from the technical and economic standpoint and using common sense, rather than
simply desirable from the standpoint of the applicant.390

A number of federal court decisions have affirmed this approach. For example, in Van Abbema v
Fornell,391 the Court of Appeals for the Seventh Circuit focused on the Corps of Engineers' evaluation of
alternatives prior to its decision on a permit application for coal loading facility proposed for
construction on the Mississippi River. The Court found the Corps' evaluation of alternatives to be
inadequate and stated that:

At the outset we note that the evaluation of "alternatives" mandated by NEPA is to be an
evaluation of alternative means to accomplish the general goal of an action; it is not an
evaluation of the alternative means by which a particular applicant can reach his goals. In the

480 Id. at 1072.

481 Id.; see also, Backcountry Against Dumps v. Chu, 215 F. Supp. 3d 966, 977-80 (S.D. Cal. 2015) (finding the
purpose and need statement for a permit to construct an electric transmission line was unlawful because it limited
consideration of alternatives to the project).

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current proposal the general goal is to deliver coal from mine to utility In some discussion

of alternatives to the proposal, the Corps has suggested that an alternative may not be feasible
at least partly because the applicant does not own the necessary land or perhaps cannot gain

access to it The fact that this applicant does not now own an alternative site is only

marginally relevant (if it is relevant at all) to whether feasible alternatives exist to the
applicant's proposal. This is particularly true because an existing facility in Quincy, Illinois is
presently transloading the mine's coal from truck to barge.392

The Court of Appeals for the First Circuit issued a similar holding in Dubois v. U.S. Deptartment
of Agriculture.393 In that case, instead of "rigorously exploring" various alternatives raised by members
of the public, the Forest Service evaluated only alternatives that provided an advantage to that
particular applicant. The court found that the agency's evaluation was not in accordance with the

law.394

Agencies must independently assess whether an alternative is a reasonable alternative to
meeting the purpose and need and not rely solely on the assessment of the applicant. For example, in

Southern Utah Wilderness Alliance v. Norton,395 the Bureau of

Land Management's "unquestioning acceptance" of the project proponents for oil and gas

390 Council on Environmental Quality, Forty Most Asked Questions Concerning CEQ's National
Environmental Policy Regulations, 46 Fed. Reg. 18,026, 18,027 (March 23, 1981) (emphasis in
original).

391 807 F.2d 633 (7th Cir. 1986).

392 807 F.2d 633, 638-39 (7th Cir. 1986) (emphasis in original) (internal citations omitted).393 102 F.3d
1273 (1st Cir. 1996).

394 Id. at 1288-90. To the extent CEQ's 1983 guidance on alternatives suggested that the First Circuit's
decision in the earlier case of Roosevelt Campobello International Park Commission v. U.S. EPA,
684 F.2d 1041 (1st Cir. 1982), is contrary to the decisions in Dubois or Van Abbema, we must point
out that CEQ's analysis failed to note a critical part of court's reasoning. Plaintiffs in that case did
not identify and suggest to the lead agency any alternatives it thought should be studied in the EIS
during the administrative process. The Court concluded that, "petitioners' argument that EPA erred
by restricting its consideration to alternative sites in Maine must fail, because they did not suggest
any reasonable alternatives to EPA during the comment period." Id. at 1047.

395 237 F. Supp. 2d 48 (D.D.C. 2002).

leasing inappropriately limited the agency's alternative analysis.482 And in the context of restoration
projects funded by British Petroleum (BP) in the wake of the Deepwater Horizon disaster, the
responsible federal agencies erred by limiting the alternatives to only those alternatives that BP and the
Trustees thought were reasonable.483

482 Id. at 52-53.

483 See Gulf Restoration Network v. Jewell, 161 F. Supp. 3d 1119, 1130 (S.D. Ala. 2016) ("The Trustees point to the
PEIS's 'purpose and need' statement—to accelerate meaningful restoration—and argue that they have fulfilled their

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Requiring alternatives to meet the purpose and need of an applicant also overlooks the
importance of alternatives developed outside of the agency but which must be considered by the
agency. For example, in 2008, the Bureau of Land Management leased the entire Roan Plateau for oil
and gas development. That decision was challenged by a coalition of sportsmen and conservation
groups. In 2012, a federal court ruled that BLM had violated NEPA by failing to consider a reasonable
alternative of protecting the top of the plateau while allowing oil and gas development on less sensitive
areas around the base of the plateau.398 Following that ruling, the parties to the lawsuit reached a
settlement that led BLM to prepare a supplemental NEPA analysis considering an alternative protecting
almost the entire top of the plateau, while allowing drilling around the base. In 2016, the agency
selected that alternative in a new resource management plan for the Roan. Under that plan, the
wildlife, pristine lands and other resources atop the plateau are protected, while oil and gas
development is currently proceeding on less sensitive lands around the base.

The proposed definition of reasonable alternatives is fatally flawed and must be withdrawn.

D. Proposed § 1501.9(a) - Scoping

CEQ proposes to reverse its long-standing position that the publication of a NOI triggers the
scoping process. Our concern with the proposed section is the sentence that reads, "Scoping may
include appropriate pre-application procedures or work conducted prior to publication of the notice of
intent."

This sentence is confusing in part because the term "pre-application procedures" generally refers to
what an applicant needs to do to submit a complete application to a federal agency. Some agencies
have very detailed pre-application procedures that includes distribution of information to other
agencies and to the public,484 but other have a much more informal process that is basically conducted
between the agency and the applicant. However, either a formal or informal pre-application process
does not serve the same purposes as scoping.

CEQ has previously stated that scoping can be a useful tool prior to publication of an NOI, "so
long as there is appropriate public notice and enough information available on the proposal so that the
public and relevant agencies can participate effectively." Further, CEQ stated that "scoping that is done
before the assessment, and in aid of its preparation, cannot substitute for the normal scoping process
after publication of the NOI, unless the earlier public notice stated clearly that this possibility was under
consideration, and the NOI expressly provides that written comments on the scope of alternatives and
impacts will still be considered."400

duty to consider a reasonable range of restoration alternatives. Since there could be no early restoration project
absent an agreement with (and funding from) BP, no other project could achieve the stated goal. . . . This is the
paradigm of a self-fulfilling prophecy. While 'no minimum number of alternatives' must be considered, [] agencies
must present a reasoned alternatives analysis. " (internal citation omitted)). 398 Colo. Envtl. Coal. v. Salazar, 875 F.
Supp. 2d 1233 (D. Colo. 2012).

484 See, e.g., 18 U.S.C. § 5.6 (detailing the Federal Energy Regulatory Commission's preapplication procedures).

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CEQ should not allow agencies to count communications between it and an applicant to be
considered scoping unless the public has notice and opportunity to also participate in scoping at the
same stage.

E. Proposed §§ 1502.16, 1504.2 - Environmental Consequences and Criteria for Referral to CEQ

CEQ proposes to add to the environmental consequences that must be evaluated in an EIS,
"where applicable, economic and technical considerations, including the economic benefits of the
proposed action" as a required part of the discussion of environmental consequences in an EIS. This is
confusing, redundant and in part, outside of the scope of NEPA. Economic effects interrelated with
environmental effects are currently included in the definition of effects401 and would remain in the
definition in the proposed revision of that regulation.402 Technical considerations are not really
"effects", but would normally be part of an agency's assessment as to whether an alternative was a
reasonable alternative.

The proposed additions of economic and technical considerations as a required part of effects
analysis in an EIS are troubling and misguided. The preamble says that this section is being proposed
"[t]o align with the statute."403 Presumably, the reference is to Section 102(2)(B) of NEPA which directs
agencies to:

(B) identify and develop methods and procedures, in consultation with the Council on
Environmental Quality established by subchapter II of this chapter, which will insure that
presently unquantified environmental amenities and values may be given appropriate
consideration in decision making along with economic and technical considerations!.].404

400 Council on Environmental Quality, Forty Most Asked Questions Concerning CEQ's National
Environmental Policy Regulations, 46 Fed. Reg. 10826, 10830 (Mar. 23, 1981).

401 40 C.F.R. § 1508.8(b).

402 85 Fed. Reg. at 1729.

403 85 Fed. Reg. at 1702.

404 42 U.S.C. §4332 (2)(B).

CEQ appears to misunderstand the meaning of this provision. The Senate report accompanying
NEPA explains its purpose:

In the past, environmental factors have frequently been ignored and omitted from
consideration in the early stages of planning because of the difficulty of evaluating them in
comparison with economic and technical factors. As a result, unless the results of planning are
radically revised at the policy level and this often means the Congress-environmental
enhancement opportunities may be forgone and unnecessary degradation incurred. A vital

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requisite of environmental management is the development of adequate methodology for

evaluating the full environmental impacts and the full costs of Federal actions.485

In other words, this provision was included in NEPA to try to even out the playing field by
directing agencies to develop "methods and procedures, in consultation with

CEQ," to insure that environmental values and impacts were given consideration along with (not as part
of) economic and technical considerations. Congress was not worried that economic and technical
considerations weren't being considered; it was concerned that environmental impacts were not being
considered. To the extent that economic factors are referenced, the Senate report refers to the "full
costs" of federal actions. This could appropriately include analysis of the costs of environmental
attributes such as natural barriers to flooding that could be adversely affected by federal actions. CEQ's
proposed addition turns Congress' intent on its head.486487

The federal courts have correctly understood for many years that purely economic interests do
not fall within NEPA's zone of interest. Because NEPA claims are brought under the A PA, plaintiffs must
show that they are "adversely affected or aggrieved by agency action within the meaning of a relevant
statute".407 Courts "have long described the zone of interests that NEPA protects as being
environmental."488 In the words of the D.C. Circuit Court of Appeals, "NEPA is meant to supplement
federal agencies' other nonenvironmental objectives."409

For the same reasons, CEQ should delete proposed § 1504.2(g), which would add economic and
technical considerations as a criteria for agencies to weigh in deliberating on whether to refer a
proposed action to CEQ.

CEQ should delete these proposed additions from any final rulemaking.

F. Proposed § 1506.6(c) - Public Involvement - 15 Days

CEQ says it is proposing to update the public involvement section to give agencies "greater
flexibility to design and customize public involvement to meet the specific circumstances of their
proposed actions."410 We can think of no circumstances which would require holding a public hearing
on an EIS immediately after the publication of an EIS, nor does the preamble or proposed regulation
identify any such circumstances.411 We are left without any rational explanation, then, of why the
proposed regulation deletes the current requirement for an agency to make an EIS available to the
public for at least 15 days prior to such a hearing. This is outrageously unfair. The EIS needs to be

485 S. Rep. No. 91-296, at 20 (1969) (emphasis added).

486 It is also dismaying to see that under this proposed provision, the economic benefit need only be assessed for the
proposed action, typically the preferred alternative and/or the applicant's proposal. For other types of impacts in
Section 1502.16 (environmental consequences), analysis is to be undertaken for the proposed action and reasonable
alternatives. This difference clearly reinforces the notion that this proposed revision is intended to be for the benefit
of private proponents.

487 U.S.C. § 702.

488 Ashley Creek Phosphate Co. v. Norton, 420 F. 3d 934, 940 (9th Cir. 2005) (citations omitted). 409 Glass
Packaging Inst. v. Regan, 737 F.2d 1083, 1092 (D.C. Cir. 1984) (citing 42 U.S.C. § 4335).

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released in sufficient time before the hearing so that the public can properly prepare. The current
requirement at Section 1506.6(c)(2) should be retained.

G. Proposed § 1506.6(f) - Public Involvement - FOIA Exemption

CEQ proposes to delete the provision in the current regulations that makes agency comments
on EISs available to the public pursuant to the Freedom of Information Act (FOIA) without regard to the
exclusion for interagency memoranda.412 The preamble explains this deletion by stating that FOIA has
been amended numerous times since NEPA was enacted. That is a true statement but it fails to explain
the rationale for this deletion. The only amendment to the provision for exclusion for interagency
memoranda caps the time period in which the exclusion can be claimed to twenty-five years. Twenty-
five years is obviously not a relevant timeframe for NEPA purposes and that time limit has no rational
connection to the deletion that CEQ proposes. 413 This proposed deletion should be withdrawn.

H. Proposed § 1503.4 - Response to Comments

CEQ's current regulations state that agencies "shall assess and consider comments both
individually and collectively."414 The proposed revision "clarifies" that agencies

"may respond individually and collectively." To be clear, this proposed revision is not a clarification; it
is a rollback of agency's responsibility to address each substantive comment (or summaries thereof, if
the response has been exceptionally voluminous). Does this mean that any response to comments
whatsoever is optional? Does it mean that an agency can

410 85 Fed. Reg. at 1,705; see also 40 C.F.R. § 1506.6(f).

411 Emergency situations involving proposed actions that would normally require an agency to prepare
an EIS are, of course, already covered under current 40 C.F.R. § 1506.11 or proposed § 1506.12.

412 40 C.F.R. § 1506.6(f).

413 5 U.S.C. § 552(b)(5) ("[l]nter-agency or intra-agency memorandums or letters that would not be
available by law to a party other than an agency in litigation with the agency, provided that the
deliberative process privilege shall not apply to records created 25 years or more before the date on
which the records were requested[.]").

414 40 C.F.R. §1503.4(a).

choose to summarize their responses to comments collectively even if there were only 65
489comments? CEQ needs to explain rationale for changing "shall" to "may" and for removing the
responsibility to assess comments both individually and collectively.

Additionally, there is no explanation as to why CEQ is proposing to remove the "detailed
language",415 from paragraph 5(a), governing an agency's response when it believes comments do not
require an agency response. The current language requiring an agency to cite sources, authorities, or
reasons which support the agencies position that no response is warranted and setting out what might

489 Fed. Reg. at 1704.

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change an agency's thinking is intended gives the public some level of assurance that all comments are
being considered.

Neither of these changes should be adopted and the current regulation regarding response to
comments should be retained.

I. Proposed § 1506.3 - Adoption

CEQ proposes to amend the section on one agency adopting another agency's EIS to allow
adoption of both EAs and CEs. But it fails to provide the safeguard that is built into the adoption
process for EISs - public notification - for either EAs or CEs and fails to explain that omission.490 We
want to emphasize how extraordinarily disturbing this is from the public's perspective.

For EAs, the proposed regulation states at § 1506.3(d) that notice will be given "consistent with
§ 1501.6." But proposed §1501.6 deals solely with FONSIs and FONSIs are not a type of document
subject to adoption. Any such adoption provision should specifically state that EAs can only be adopted
after appropriate public involvement is afforded in compliance with §1506.6, at a minimum.

As discussed earlier,491 we strongly oppose the proposal to allow one agency to use another
agency's categorical exclusion. The provision at § 1506.3(f) dramatically highlights our concern. This
provision would transform the adoption process - up until now, a relatively transparent one - into a
process shielded from any outside scrutiny. This process is much worse than the current categorical
exclusion process, where at least the public can reference an agency's approved NEPA procedures to
determine what type of actions are likely to be categorically excluded. This proposed adoption
provision, however, leaves the public totally in the dark, without any sense of which of the some 2,000
categorical exclusions that exist might be utilized by an agency.

We strongly object to categorical exclusion "adoption" and urge that it be withdrawn entirely.

J. Proposed §§ 1504.3(e), 1504.3(f) - Procedures for Referral and Response.

The proposed revision to the referral procedure drops the provisions that currently provides for
an opportunity for the public to submit written comments on the matter under referral, as well as
deleting the specific option of "holding public meetings or hearings." No rationale is offered for these
changes in the preamble other than a vague, general allusion to simplification and efficiency.

Matters referred to CEQ are among the most highly visible and potentially significant federal
actions. CEQ has always entertained outside comments under this regulation and depending on the
nature of the referral, held public meetings or hearings, conducted site visits and/or provided for a
written public comment period. For example, during the referral process for the proposed Manteo
(Shallowbag) Bay Project located in Dare County, North Carolina (more commonly referred to as the
Oregon Inlet matter), CEQ sought public comments on the referral and received extensive comments

490 See, 85 Fed. Reg. at 1704-05.

491 Supra at Section V. (L).

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from the public, their elected representatives, and interested state agencies. CEQ also held a public
meeting in Manteo, North Carolina.492

In other words, while retaining flexibility CEQ has customarily conducted the referral process in
a manner consistent with the basic NEPA principles of public involvement and transparency. It is very
disturbing and consistent with the current CEQ's disdain for the public, that CEQ is proposing to remove
all provisions for public involvement are being removed. CEQ should retain the current provisions for
public involvement.

VI. THE PROPOSALS TO LIMIT OR ELIMINATE JUDICIAL REVIEW ARE OUTSIDE
OF THE SCOPE OF CEQ S AUTHORITY.

A. Proposals to Limit or Eliminate Judicial Review

CEQ proposes multiple regulatory changes that are clearly intended to limit or eliminate judicial
review under the APA's judicial review provisions, 5 U.S.C. § 701-706. For example, the proposed
regulations attempt to: establish burdensome commenting requirements (§ 1503.3); purport to define
"final agency action" for purposes of judicial review (§ 1500.3(c)); purport to interpret the judicially-
created exhaustion doctrine (§ 1503.3(b)); purport to instruct federal courts on what causes of action
exist and what remedies are available (§1500.3(d)); and direct agencies to self-certify compliance with
the regulations with the notion that said certification would act as a shield from courts' traditional
"hard look" at agency compliance by creating a "conclusive presumption" of compliance (§ 1502.18).
CEQ also invites agencies to structure their decision making processes in a manner that would allow for
a stay pending judicial review, possibly contingent on a bond and security requirements or other
conditions (§1500.3(c)).

CEQ lacks statutory authority to interpret the APA through its NEPA regulations in a manner that would
bind other federal agencies or that would warrant judicial deference, let alone limit by regulation
judicial review of NEPA challenges. It is black letter law that courts do not defer to regulations
construing statutes that the agency does not administer. Where courts have afforded deference to
CEQ regulations, they have done so solely within the confines of interpreting NEPA's requirements.
Nothing in NEPA or the APA bestow upon CEQthe authority to interpret the APA in the NEPA
regulations to be followed by the entire executive branch. Since no single agency oversees
administration of the APA, the courts do not defer to agencies' interpretation of the stastute. As the
Supreme Court said in United States v. Florida East Coast Railroad Co.:

[The Administrative Procedure Act] is not legislation that the Interstate Commerce

Commission, or any other single agency, has primary responsibility for administering. An

492 Resolution of the October 16, 2001 National Oceanic and Atmospheric Administration referral to the Council on
Environmental Quality for the Army Corps of Engineers' Manteo (Shallowbag) Bay Project, available at:
https: //seorsewbush-

whitehouse. archives, sov/cea/text/cea frnotice. html and
https://seorsewbushwhitehouse.archives.sov/cea/oresoninlet

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agency interpretation involving, at least in part, the provisions of that Act does not carry the
weight, in ascertaining the intent of Congress, that an interpretation by an agency "charged
with the responsibility" of administering a particular statute does.419

See also Adams Fruit Co. v. Barrett420 ("A precondition to deference under Chevron is a congressional
delegation of administrative authority."); Envirocare of Utah, Inc. v. Nuclear
Regulatory Comm 'n421 ("[W]hen it comes to statutes administered by several different agencies-
statutes, that is, like the APA []—courts do not defer to any one agency's particular interpretation.").

This principle is at its strongest when applied to Chapter 7 of the APA. The APA's judicial review
provisions are administered solely by the courts. Congress did not delegate to CEQ or any other agency
authority to speak with the force of law in administering and interpreting this chapter. Because any
final regulation purporting to interpret the APA's provisions as applied to NEPA challenges does not fall
within CEQ's delegated interpretive authority to resolve ambiguities and fill gaps in NEPA, it would
warrant no deference whatsoever.422

The proposed regulations are replete with instances where CEQ oversteps its bounds and
intrudes on the authority of the judiciary to administer, interpret, and apply the

APA's judicial review provisions. Proposed § 1500.3(c) states CEQ's "intention" that

419 410 U.S. 224, 252 n.6 (1973) (citations omitted).

420 494 U.S. 638, 649 (1990) (citing Bowen v. Georgetown University Hospital, 488 U.S. 204, 208 (1988)).

421 194 F.3d 72, 79 n.7 (D.C. Cir. 1999) (citation omitted).

422 See Crandon v. United States (Chevron deference inappropriate where "[t]he law in question .

. . is not administered by any agency but by the courts"); Sorenson Communications Inc. v. FCC ("To
accord deference would be to run afoul of congressional intent [in enacting the APA] From the outset,
we note an agency has no interpretive authority over the APA. . .we cannot find that an exception
applies simply because the agency says we should.").

judicial review "not occur before an agency has issued the [ROD] or taken other final agency action."
The federal judiciary, however, has developed an extensive body of caselaw on what constitutes final,
reviewable agency action under 5 U.S.C. § 704.493 A reviewing court will not be bound by CEQ's
regulation in determining whether the action at issue in a particular NEPA challenge is final and
reviewable. Federal agencies cannot limit the subject matter jurisdiction of federal courts under the
APA by regulation.494

Similarly, CEQ's language in this subsection regarding agencies' authorities to structure their
decision making to incorporate administrative procedures for private parties to seek stays, including
procedures establishing bond or other security requirements, encroaches on a well-developed body of
caselaw interpreting and applying the language of 5 U.S.C. § 704 and § 705. CEQ's opinion as to the

493 See, e.g., Bennett v. Spear, 520 U.S. 154, 177-78 (1997).

494 See Munsell v. Dep'tofAgric., 509 F.3d 572, 580 (D.C. Cir. 2007).

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propriety of such rulemaking will neither expands federal agencies' authorities to promulgate rules
structuring their NEPA decision making nor meaningfully inform a court determining whether a party's
compliance (or lack thereof) with such rules has affected the finality of an agency decision. Likewise,
CEQ's "intention" that "minor, non-substantive errors that have no effect on agency decision making
shall be considered harmless," proposed § 1500.3(d), is superfluous to the harmless error doctrine that
the courts have developed under 5 U.S.C. § 706(2). To the extent CEQ seeks to expand this doctrine, it
is without authority to do so.

Just as CEQ lacks delegated interpretive authority for the APA, so too does it lack authority to
interpret the body of statutory and common law that establishes the judiciary's powers and
limits thereto and enshrine this interpretation in the NEPA regulations. CEQ may not instruct a
reviewing court sitting in equity as to what it may or may not presume when determining
whether a NEPA violation is a basis for irreparable harm or injunctive relief under applicable
judicial precedents, although CEQ purports to do so in proposed § 1500.1(d). Nor may CEQ
impose binding regulatory exhaustion requirements that originated in judicially-created and
prudential doctrines subject to exceptions to restrict judicial review, as it attempts to do in
proposed § 1500.3(b)(3) ("Comments or objections not submitted shall be deemed exhausted
and forfeited."). Finally, CEQ cannot create a "conclusive presumption" that restricts a
reviewing court's discretion to determine whether an agency "has considered the information
in the submitted alternatives, information, and analyses section submitted by public
commenters," as stated in proposed § 1502.18, merely because the agency decision maker has
certified in the ROD that she has done so. See also proposed § 1500.3(b)(4) (certification
requirement). These draft regulatory changes inappropriately encroach on the judiciary's
constitutional functions to interpret and apply the law, including both statutory and common
law.

Any federal agency relying on CEQ's regulations purporting to interpret the APA or the federal
judiciary's powers and constraints as applied to NEPA challenges to defend its actions or
support its arguments does so at its peril. That agency will be unable to take advantage of the
pass-through deference courts otherwise accord to CEQ's NEPA regulations (where valid).

CEQ's attempts to stick its oar into what are plainly—and exclusively—judicial waters will only
lead to potential confusion within agencies, inconsistencies in amendments to agency-specific
NEPA regulations, and protracted litigation. CEQ should abandon these attempts.

VII. CEQ'S PROPOSAL FUNDAMENTALY UNDERMINES

ENVIRONMENTAL JUSTICE CONSIDERATIONS AND PUTS FRONTLINE COMMUNITIES
AT RISK.

It is accepted fact that frontline communities are disproportionately impacted by pollution and other
environmental and health hazards.495496 However, it is these low-income, rural, and minority
communities that would be most severely impacted by CEQ's proposed revisions, placing them at

495 American Bar Association, Resolution on Environmental Justice and Report to the House of Delegates, Approved
by House of Delegates, Aug. 11, 1993, reprinted in Hill, Barry E., Environmental Justice Legal Theory and
Practice, pp. 407-414, ELI Press (2009).

496 U.S.C. § 4332(C)

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extreme risk by ignoring cumulative impacts, limiting scientific analysis, narrowing the scope of review,
shielding significantly impactful projects from any type of meaningful public input or disclosure of
impacts, limiting consideration of alternatives, and making it much more difficult for environmental
justice ("EJ") communities to hold the government accountable by limiting or eliminating judicial
review.

While the substance of these technical comments writ large contains a litany of concerns with the
effect that CEQ's draft rule will have on EJ communities, we wish to use this section to bond them
together in greater detail in order to better illustrate CEQ's shameful disregard of the frontline
communities most at risk by ill-considered projects or decisions.

In NEPA, Congress presciently placed environmental justice concerns at the core of the statute by
recognizing that each person "should enjoy a healthful environment" and by premising the entire
requirement for an environmental impact statement on "major Federal actions significantly affecting
the quality of the human environment."426

The term "environmental justice" formally entered the federal lexicon in 1994 when President Clinton
signed an Executive Order addressing "Environmental Justice in

Minority and Low-Income Populations." Critically, the Executive Order was the first acknowledgment
that exposure to environmental hazards is related to race and income levels, mandating federal
agencies to develop strategies for "identifying and addressing...[the] disproportionately high and
adverse human health or environmental effects of [their] programs, policies, and activities on minority
populations and low-income populations."497 That President Clinton, in a memorandum subsequently
cited by CEQ itself its "Environmental Justice Guidance Under the National Environmental Policy Act"
("EJ Guidance), recognized "the importance of procedures under NEPA" and emphasized

"the importance of NEPA's public participation process" in implementing later EO 12898 ("Federal
Action to Address Environmental Justice in Minority Populations and Lowlncome Populations") lends
great strength to the statement that NEPA and the current regulations are the most effective way to
identify and address environmental justice concerns.

CEQ notes in its EJ Guidance that EJ issues "may arise at any step of the NEPA process and
agencies should consider these issues at each and every step of the process."498 In this sweeping
proposal that will fundamentally change nearly every step of the NEPA review process, CEQ has
provided no explanation or analysis of how the development and implementation of this rule would
affect implementation of EO 12898 and, consequently, EJ communities. The potential for
disproportionate impacts should have been considered in a NEPA analysis on this proposal, but as
noted above429, CEQ has disregarded its own responsibility to comply with NEPA and prepare an EIS on
the proposal. 499500 Further, without providing the analysis CEQ says it prepared under EO 12898 for

497 "Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, " Exec.
Order No. 12,898, 59 Fed. Reg. 7629 (Feb. 11, 1994), amended by Exec. Order No. 12,948, 60 Fed. Reg. 6381 (Jan.
30, 1995).

498 "Environmental Justice Guidance Under the National Environmental Policy Act, " CEQ. 1997. 429 Supra at
Section 11 (B).

499 Id.

500 Fed. Reg. at 1711-1712.

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review by the public at large or the affected environmental justice communities, 431 CEQ cursorily
concluded that the proposed rule "would not cause disproportionately high and adverse human health
or environmental effects on minority populations and low-income." 501 Further, CEQ's EJ Guidance,
which outlines environmental justice principles and considerations in the NEPA process, would be
rescinded.

Of particular concern is CEQ's proposal to eliminate the requirement to consider cumulative
impacts, which CEQ identifies as one of the six general principles that agencies should consider in
environmental reviews as they seek to incorporate environmental justice concerns under EO 12898. 433
502 Eliminating cumulative effects analysis will disproportionately and adversely affect EJ communities.
As CEQ noted, "Evidence is increasing that the most devastating environmental effects may not result
from the direct effects of a particular action, but from the combination of individually minor effects of
multiple actions over time."435 This is particularly true with EJ communities. The EPA recently found
that people of color and the poor are much more likely to be exposed to pollution, impacting their
health. The pollution to which communities are exposed does not come from a single action or source,
but rather from multiple actions over a period of time. Cumulative effects analysis under NEPA is one of
the few tools available to agencies to consider exactly how a proposed project may contribute to past,
present, and future pollution burdens.503

The current proposal not only eliminates critical cumulative impact analysis on which EJ
communities rely, it sidelines these communities by multiple provisions with the current proposal
which would limit or entirely eliminate meaningful public input. Specifically, CEQ narrows the scope of
review and unjustifiably proposes to eliminate

NEPA's applicability to a wide variety of federal actions.437 Additional measures, such as new limitations
on additional scientific analysis438, the proposal to gut the alternatives requirement439, elimination of
the requirement to give the public 15 days to review an EIS,440 and establishing burdensome
commenting requirements441 will severely limit the public's access to information on impacts to their
communities and make it nearly impossible to meaningfully engage in the decisionmaking process.

Taken together, the proposed changes in CEQ's proposal will institutionalize a decisionmaking
process across the federal government that unconscionably shields EJ communities from the most
relevant information on impacts to their communities and unconscionably silences their voices in the
decisionmaking process.

VII. CONCLUSION

501 Id.433 Id.

502 Id. ("Agencies should consider relevant public health data and industry data concerning potential for multiple or
cumulative exposure to human health or environmental hazards in the affected population and historical patterns of
exposure to environmental hazards. ") 433 Ibid.

503 See Louisiana Energy Servs, L.P. (Claiborne Enrichment Center), CLI 98-3, 47 N.R.C. 77 (1998); Private Fuel
Storage, L.L. C. The Louisiana Energy Services Corporation applied to the

U.S. Nuclear Regulatory Commission for a license to construct and operate a nuclear fuel

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We urge CEQ to withdraw this entire regulatory proposal and work to enforce the sensible and lawful
provisions of the current CEQ regulations. We remind CEQ again that studies conducted to determine
the cause of delay in federal actions coming under NEPA have consistently found that NEPA is not the
primary driver of delay.442 Further, we believe that the outcome of upending five decades of NEPA law
and attempting to redesign the process will actually result in more, not less, time spent on NEPA. But
most urgently, the consequences of finalizing these proposed revisions will be to do lasting damage to
the quality of our human environment and will restrict the public's ability to actively engage in
decisionmaking.

enrichment facility near the small rural community of Homer, Louisiana. The proposed site was located
near two unincorporated communities populated primarily by low-income, minority families that were
descendants of freed slaves. Among other social and economic impacts, the facility would have
eliminated a road connecting the two communities, causing residents to experience greatly increased
travel times to work, school, and other activities.

437 Supra, Section IV.

438 Supra at Section V (I). 439 Supra at Section V (F).

440 Supra at Section VI (F).

441 Supra at Section VI.

442 USDA Forest Service, Environmental Analysis and Decision Making: The Current
Picture (Phoenix, Az. Sept. 2017), Department of Treasury report by Toni Horst, et al., 40

Proposed U.S. Transportation and Water Infrastructure Projects of Major Economic
Significance, (December, 2016) Congressional Research Service, The Role of the Environmental Review
Process in Federally Funded Highway Projects: Background and Issues for Congress, R42479, (April
11, 2012).

March 10, 2020

Submitted via Regulations.gov and via email to fn-ceq-nepa@ceq.eop.gov

Mary B. Neumayr
Chair

Council on Environmental Quality
730 Jackson Place NW
Washington, DC 20503

Re: Docket No. CEQ-2019-0003, Notice of Proposed Rulemaking, Update to the Regulations for
Implementing the Procedural Provisions of the National Environmental Policy Act

Dear Ms. Neumayr:

On behalf of our millions of members and supporters across the country, the undersigned 331
conservation, health, and justice organizations and businesses urge the Council on Environmental

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Quality (CEQ) to withdraw the Notice of Proposed Rulemaking (NPRM) and retain the existing CEQ
regulations that properly implement the National Environmental Policy Act (NEPA).504

The deeply flawed and illegal changes in the NPRM would silence public input and purge informed,
science-based decision-making from the federal environmental review process. They would put
industry, developer, and polluter interests before public health and safety, and before the health of our
waters, lands, air and wildlife. The changes create significant risks for frontline and indigenous
communities that are already disproportionately harmed by pollution, flooding, and climate change.

NEPA is a critical tool for saving lives and protecting the environment for the health, safety, and
wellbeing of future generations. The existing CEQ regulations correctly implement NEPA's action forcing
procedures that include giving the public a voice in federal decisions that affect the environment,
carefully reviewing the environmental impacts of proposed actions, and investigating less
environmentally harmful alternative actions. Reviews carried out under the current regulations have
exposed the true cost of environmentally damaging and ill-conceived proposals, leading to better
solutions and substantial savings for federal taxpayers.505

For example, NEPA review led to an inter-agency agreement halting construction of a dangerous new
levee, protecting vulnerable Mississippi River communities from flooding, preventing the loss of 50,000
acres of wetlands, and saving taxpayers more than $345 million. NEPA review of a Corps of Engineers'
proposal to dredge California's Bolinas Lagoon showed that the project would cause extensive harm to
one of the most pristine tidal lagoons in California and was not necessary. The misguided proposal was
then abandoned, saving taxpayers $133 million, and the non-federal sponsor developed a
communitysupported plan to restore and manage the lagoon. NEPA review protected public health and
the environment by allowing a coalition of tree planters, rural residents and scientists in the Pacific
Northwest to work with the Forest Service to develop an effective, less-costly, and safer nonchemical
weed control alternative in lieu of toxic herbicides.

The changes proposed in the NPRM would unravel the vital protections provided by NEPA, threatening
the health, safety, and well-being of people and wildlife across the country. Among many other
unacceptable and illegal changes, the NPRM would:

1. Eliminate NEPA review for many projects: The proposal attempts to exclude many projects
from environmental review and public input under NEPA. Among other things, the NPRM
creates new tests for determining whether NEPA applies at all to a project (including by
changing the definition of "major federal action") and allows agencies to exempt a project from
NEPA review by determining that some other type of analysis would serve the same purpose.

304 Many of our organizations will also be submitting individual comments and/or joining other group comments
urging CEQ to withdraw the NPRM.

303 While NEPA implementation has been far from perfect, the information and public involvement obtained through
the NEPA process has provided enormous benefits to people, wildlife, and the environment across the country.

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These changes could allow agencies to move forward with controversial projects - including
building pipelines, roads, dams, floodgates, and levees - without any NEPA review or
opportunity for public comment.

2. Ignore severe environmental, public safety, and health impacts: The proposal would severely
limit the types of impacts examined during a NEPA review. The NPRM's directive that analysis of
cumulative effects "is not required" would eliminate review of a project's role in increasing
climate change and many other types of harm. It would also dispense with review of rising sea
levels, stronger storms, and other climate change impacts on the effectiveness and resilience of
a proposed project. Agencies could also ignore many types of severe impacts based on the
NPRM's elimination of all references to "indirect" effects, and its directive to review only
impacts with a "reasonably close causal relationship" to the proposed action. These changes
could let agencies ignore the long-term impacts of toxic pollution from gold or copper mines;
the risks of new levees diverting floodwaters onto other communities; and loss of wetlands
caused by reservoir management practices that starve a river of the water flows needed to
sustain those wetlands.

3. Allow projects to be approved even if critical scientific and technical information is missing:

The proposal would give agencies the green light to make decisions without scientific and
technical information essential to making a reasoned choice among project alternatives. The
NPRM specifically states that agencies "are not required to undertake new scientific and
technical research to inform their analyses." This could let agencies approve navigation
infrastructure, major river dredging projects, reservoir operating plans, and large flood projects
without conducting the research needed to understand the impacts of those projects on
flooding, habitat loss, or ecosystem health.

4. Significantly weaken the review of alternatives: The proposal would significantly weaken the
assessment of alternatives during a NEPA review, dramatically undermining NEPA's fundamental
purpose of exploring less environmentally harmful approaches to achieving the project purpose.
The NPRM eliminates the requirements to "rigorously explore and objectively evaluate all
reasonable alternatives" and to consider reasonable alternatives not within the jurisdiction of
the lead agency. The NPRM instead directs a much less extensive review, requiring only that
agencies "evaluate reasonable alternatives to the proposed action."

5. Allow agencies to ignore critical public input: The proposal creates loopholes that could let
federal agencies ignore public comments, effectively silencing the communities and individuals
that could be harmed most by a federal action. The NPRM would let agencies ignore public
comments that they deem are not "specific" enough or do not include reference to data sources
or scientific methodologies. The NPRM improperly places the burden on the public to list any
and all possible impacts of a proposed project; to provide specific language changes; and to
"explain why an issue raised is significant" to the consideration of impacts to the environment,
the economy, employment and potential alternatives. Comments most likely to be ignored
include those from the general public; those from frontline communities without resources to
fund technical reviews; and those that rely on traditional knowledge rather than technical data.
The NPRM also creates new hurdles to challenging a flawed environmental review in court.

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6. Allow project applicants to write their own environmental reviews without conflict of interest
safeguards: The proposal eliminates longstanding safeguards designed to protect the
independence and integrity of environmental reviews. Under the current regulations, the
federal agencies prepare NEPA reviews and agencies can only hire consultants to assist in a
NEPA review after obtaining disclosures of any conflicts of interest or financial stakes in the
project the contractor would be reviewing. The NPRM, however, lets companies prepare their
own NEPA reviews - despite their clear interest in obtaining project approval. Agencies could
also hire contractors without obtaining a conflicts of interest disclosure.

The changes proposed in the NPRM would wreak havoc on communities, wildlife, and the environment.
We urge CEQto withdraw the NPRM and retain the existing NEPA implementing regulations that have
properly served the nation for more than 40 years.

Sincerely,

Bo Webb
Don Riepe
Campaign Director
Director, NE Chapter

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ACHE American Littoral Society

Cindy E Lowry

Katherine Robb

Executive Director

Senior Program Manager

Alabama Rivers Alliance American Public Health

Association

Maria De Luna

Eileen Shader

National Policy & Advocacy Coordinator
Director, River Restoration
Alianza Nacional de Campesinas
American Rivers

Susan Inman
Joseph Zupan

Altamaha Coastkeeper Executive
Director

Altamaha Coastkeeper Amigos Bravos

Steve Holmer Thomas
Anderson Vice President of
Policy Administrative Director
American Bird Conservancy
Amigos De Bolsa Chica
Trey Sherard
Interim Riverkeeper
Anacostia Riverkeeper
Olivia Anderson

Project Coordinator and Development Lead
Anacostia Riverkeeper Inc.

Marjorie Levine
Director

Angler Action Foundation

Bethany Cotton
Terrestrial Wildlife Director
Animal Welfare Institute
Georgia Ackerman
Riverkeeper & Executive Director
Apalachicola Riverkeeper
Mary Varson Cromer
Deputy Director

Appalachian Citizens' Law Center, Inc.

Joe Lovett

Executive Director

Appalachian Mountain Advocates

Brendan Mysliwiec

Director of Federal Policy and Legislation
Appalachian Trail Conservancy

Jim Vogt
President

Aquashicola/Pohopoco Watershed Conservancy

Francisco Lopez President
Arrecifes Pro Ciudad Inc.

Constantino Aucca
President of ECOAN

Asociacion Ecosistemas Andinos - ECOAN

Kathy Phillips

Assateague COASTKEEPER
Assateague Coastal Trust
Dean A. Wilson
Executive Director
Atchafalaya Basinkeeper
Heather Cantino
Steering Committee Chair

Athens County's Future Action Network, a.k.a. Athens
County (OH) Fracking Action Network

Scott Zucker
Vice President
Audubon Everglades
Jill Mastrototaro
Policy Director
Audubon Mississippi
Dan VanNorman

President of Audubon Chapter and Alternate
Delegate to the Everglades Coalition
Audubon of Southwest Florida

Connie M. Ericson
Advocacy Chair

Audubon Society Northern Virginia

Bob Sallinger
Conservation Director
Audubon Society of Portland
Kevin Graff
Vice-President
Baltimore Bird Club
Kevin Emmerich
Director

Basin and Range Watch

Jordan Macha

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Executive Director & Waterkeeper
Bayou City Waterkeeper

Bob Fisher

Communications Chair
Bird Conservation Network
Charles Scribner
Executive Director
Black Warrior Riverkeeper
David C Perry
Executive Director

Blue Ridge Land Conservancy and Central Virginia
Land Conservancy

Jenn Aiosa
Executive Director
Blue Water Baltimore

Rebecca Roter
Chairperson

Breathe Easy Susquehanna County

Beth K. Stewart

Executive Director

Cahaba River Society

Myra A Crawford

Executive Director

Cahaba Riverkeeper

Sean Bothwell

Executive Director

California Coastkeeper Alliance

Nick Jensen

Lead Conservation Scientist
California Native Plant Society

Bill Jennings
Executive Director

California Sportfishing Protection Alliance

Linda Castro

Assistant Policy Director

California Wilderness Coalition

Michael J. Painter
Coordinator

Californians for Western Wilderness

John Cassani

Calusa Waterkeeper

Lori Haus-Bulcock

Board of Directors

Cape Coral Friends of Wildlife

Kemp Burdette

Cape Fear Riverkeeper

Cape Fear River Watch

Parker Agelasto

Executive Director

Capital Region Land Conservancy

Glenn Wahl

Co-Founder

Cattaraugus-Chautauqua for Clean Water

David C. Kyler

Co-Director Center for a Sustainable
Coast

Joe Laszlo
Facilitator

Central Illinois Healthy Community Alliance

Reed Perry

Government Relations Specialist
Chesapeake Conservancy

Judy Pollock
President

Chicago Audubon Society

Michael William Mullen
Riverkeeper/Executive Director

Choctawhatchee Riverkeeper

John Koeferl
President

Citizens Against Widening the Industrial Canal

Aimee Erickson

Executive Director

Citizens Coal Council

Natasha Leger

Executive Director

Citizens for a Healthy Community

Anne Coglianese

Coastal Resilience Program Manager City of New

Orleans

Jennifer Peters

National Water Programs Director
Clean Water Action

Ken Dolsky
Organizer

Coalition Against Pilgrim Pipeline - NJ

Emily Vuxton

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Policy Director

Coalition to Restore Coastal Louisiana

Bayard Ewing

Chair, Conservation Committee
Colorado Native Plant Society
Brett VandenHuevel
Executive Director
Columbia Riverkeeper
Clark Bullard
Director

Committee on the Middle Fork Vermilion River

Brigid Lawlor

U.S. Provinces Advocacy Liaison

Congregation of Our Lady of the Good Shepherd, U.S.

Provinces

Heather A. Govern, Esq.

Vice President and Director, Clean Air and

Water Program

Conservation Law Foundation (CLF)

Jesse Demonbreun-Chapman
Executive Director & Riverkeeper
Coosa River Basin Initiative/Upper Coosa
Riverkeeper

Larry Baldwin
Waterkeeper

Crystal Coast Waterkeeper

William Franks
President

Cumberland-Harpeth Audubon Society

Peg Furshong

Director of Programs

CURE (Clean Up the River Environment)

Frank James

Staff Director

Dakota Rural Action

John Murtaugh

Representative, Rockies and Plains

Defenders of Wildlife

Diane Rosencrance

Executive Director

Delaware Highlands Conservancy

Matthew Sarver

Conservation Chair

Delaware Ornithological Society

Maya K. van Rossum the Delaware
Riverkeeper

Delaware Riverkeeper Network

Anne Bekker

Conservation Co-Chair

Delaware Valley Ornithological Club

Angelo DePaola
Owner and operator
Depe Oysters LLC

Babak Tondre President & Co-
Owner

DIG Cooperative Inc.

Mary Gutierrez Director
Earth Ethics, Inc.

Amy Rosmarin
Executive Director
Earthkeeper Health Resources
Aaron Mintzes
Senior Policy Counsel
Earthworks

Daneeta Loretta Jackson Producer
ElektrikZoo Films, Inc.

Dan Silver
Executive Director
Endangered Habitats League
Morgan Patton
Executive Director

Environmental Action Committee of West Marin

Maureen Cunningham

Senior Director for Clean Water

Environmental Advocates of New York

Caitlin Hart

Senior Legislative Analyst
Environmental Defense Fund

Thomas Wheeler
Executive Director

Environmental Protection Information Center

Michelle Roos
Executive Director
Environmental Protection Network
Steve Box
Executive Director
Environmental Stewardship
Jim La Rochelle

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President

Evanston North Shore Bird Club

Carol Hoover / Skye Steritz
Executive Director / Program Manager
Eyak Preservation Council / Copper River Delta
Sound Waterkeeper

Blair Schilling
Attorney

Fishman Haygood, LLP

Bill Tanger

Vice President and Conservation Chair
Float Fishermen of Virginia

Emma Haydocy
Director

Florida Bay Forever

Michael Chenoweth
President

Florida Division of the Izaak Walton League of
America

Mark Perry

Executive Director

Florida Oceanographic Society

Liz Kirkwood

Executive Director

FLOW (For Love of Water)

Dave Peterson

Conservation Chair

Fly Fishers International

Sherry Pease

Executive Director

Foothill Conservancy

Spring D Ligi

Nature Instructor

Frederick Bird Club - MOS

Judith Rodd

Director

Friends of Blackwater, Inc.

Ivy Frignoca
Casco Baykeeper
Friends of Casco Bay

Glenda Booth
President

Friends of Dyke Marsh

Andrew N Tyler

Consultant

Friends of Fakahatchee

Kevin Chapdelaine
President
Friends of Pool 2
Scott Beauchamp
Policy Director
Friends of the BWCA
Bob Clarke
President

Friends of the Central Sands

Amanda Pitzer
Executive Director
Friends of the Cheat

Jim Pfiffer
Executive Director

Friends of the Chemung River Watershed

Kristin Larsen
Executive Director

Friends of the Cloquet Valley State Forest

Robert Burns
Detroit Riverkeeper
Friends of the Detroit River

Marcie Keever

Director, Oceans & Vessels Program
Friends of the Earth

Barbara Ullian
Chair

Friends of the Kalmiopsis

Dawn Buehler

Kansas Riverkeeper & Executive Director
Friends of the Kaw

John C McCue
Chairman

Friends of the Middle River

Trevor A Russell
Water Program Director
Friends of the Mississippi River

Scott C Yaich
Board Member

Friends of the North Fork and White Rivers

Ronald Martin Stork
Policy Director
Friends of the River

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Bill Tanger
Chair

Friends of the Rivers of Virginia

Kathleen J. Vasvary
Missionary

Friends of the Santa Cruz River

Bob Stokes
President

Galveston Bay Foundation

Yvonne Taylor

Vice President

Gas Free Seneca

Peter Duffey

Board Director

George's River Land Trust

Michael Worley

President & CEO

Georgia Wildlife Federation

Linda Stone

VP Admin & Gulf Coast Programs

Global Green

Rachael Thompson

Executive Director

Glynn Environmental Coalition

Pam Young

Executive Director

Golden Gate Audubon Society

Rick Eichstaedt

Director/Attorney

Gonzaga University Environmental Law and Land Use
Clinic

Fred Akers
Administrator

Great Egg Harbor Watershed Association

Shelley Silbert

Executive Director

Great Old Broads for Wilderness

Bruce A. Morrison
President

Great Rivers Environmental Law Center

David Stokes

Executive Director

Great Rivers Habitat Alliance

Veronica Warnock

Conservation Director
Greater Hells Canyon Council

Fran Teplitz
Executive Co-director
Green America
Sascha Bollag
Attorney
Green Justice
Charlie Cray

Business and Political Strategist

Greenpeace

Theaux Le Gardeur

Gunpowder RIVERKEEPER

Captain Bill Sheehan

Riverkeeper & Executive Director

Hackensack Riverkeeper

Emily Sutton

Haw Riverkeeper

Haw River Assembly

Sean Grace

President

Hawk Mountain Sanctuary

Cynthia Sarthou
Executive Director

Healthy Gulf (formerly Gulf Restoration Network)

April Peebler
Executive Director
Heirs To Our Oceans

Stephen Buczynski
President

Hendry-Glades Audubon Society

Matt Reed

Public Lands Director

High Country Conservation Advocates

Patricia Adams
Attorney

Holy Cross Neighborhood Association

Indra Frank

Director of Environmental Health and Water
Policy

Hoosier Environmental Council

Aaron Lehmer-Chang

Co-owner

House Kombucha

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Richard Webster
Legal Director
Hudson Riverkeeper

Jennifer Kalt
Director

Humboldt Baykeeper

Colleen McNally-Murphy
Associate National Director
Hydropower Reform Coalition
Nic Nelson
Executive Director
Idaho Rivers United
Bonnie Duman
Board Member
Illinois Audubon Society
Edward L Michael
Government Affairs Chair
Illinois Council of Trout Unlimited
Tamima Itani

Vice President and Treasurer
Illinois Ornithological Society

Liz Stelk

Executive Director
Illinois Stewardship Alliance

Howdy Henritz
President

Indian Creek Watershed Association

Michael Conner
Executive Director
Indian Riverkeeper
Emily A Wood
Executive Director
Indiana Wildlife Federation
Megan Brousseau
Associate Director
Inland Empire Waterkeeper
Vicki Nichols Goldstein
Founder & Director
Inland Ocean Coalition
Shiney Varghese
Senior Policy Analyst

Institute for Agriculture and Trade Policy

Michael R. Schmidt
Staff Attorney

Iowa Environmental Council

Joe Wilkinson
President

Iowa Wildlife Federation

Jared Mott

Conservation Director

Izaak Walton League of America

Jim Scheff
Director

Kentucky Heartwood

Tom Fitzgerald
Director

Kentucky Resources Council

Pat Banks
Director

Kentucky Riverkeeper

Ward G. Wilson
Executive Director
Kentucky Waterways Alliance
Kimberly Baker
Executive Director
Klamath Forest Alliance
Joseph Vaile

Climate Program Director
Klamath-Siskiyou Wildlands Center

Patricia Schuba
President

Labadie Environmental Organization (LEO)

Lori Fisher

Executive Director

Lake Champlain Committee

Sandy Bihn

Executive Director

Lake Erie Waterkeeper

Reinaldo Diaz

Waterkeeper

Lake Worth Waterkeeper

Rena Cohen

President

Lake-Cook Chapter, Illinois Audubon Society

Cindy Brown
Executive Director
Land Trust for Louisiana

Deborah A Aldridge

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President

Last Stand

Rebecca Jim Tar

Creekkeeper

LEAD Agency, Inc.

Matthew Davis

Legislative Director

League of Conservation Voters

Nancy Porter

Director

League of Women Voters of Iowa

Cathy Eisenhofer
President

League of Women Voters of Johnson County
Iowa

Jessica Jones Capparell

Legislative and Policy Affairs Senior Manager

League of Women Voters of the United States Mary

Ploeser

Co-Chair

League of Women Voters Upper Mississippi
River Region Inter League Organization (LMVURRILO)

Sandy Rosenthal

Founder and President

Levees.org

Angela Shugart

Executive Director

Little River Waterkeeper

John Weisheit

Conservation Director

Living Rivers & Colorado Riverkeeper

Michael Myers

Executive Director

Loudoun Wildlife Conservancy

Dr. Barry Kohl

President

Louisiana Audubon Council

John A. Ruskey
Founding Director

Lower Mississippi River Foundation

Ted Evgeniadis

Lower Susquehanna Riverkeeper

Lower Susquehanna Riverkeeper Association

Laura Paul Executive
Director lowernine.org
Drew Martin
Conservation Chair
Loxahatchee Group
Karen Forget
Executive Director
Lynnhaven River NOW
Colin Rees

Steering Committee Chair

Maryland Bird Conservation Partnership

Kurt R. Schwarz

Conservation Chair

Maryland Ornithological Society

Jen Lomberk, Esq.

Matanzas Riverkeeper

Michael Collins

President

Memphis Tennessee Ornithological Society

Rachel Silverstein

Executive Director & Waterkeeper

Miami Waterkeeper

Sean Hammond Policy Director

Michigan Environmental Council

Ayako Nagano Managing Attorney

Midori Law Group, P.C.

David Schmitt

Executive Director

Mill Creek Alliance

Cheryl Nenn

Riverkeeper

Milwaukee Riverkeeper

Albert Ettinger
Legal Counsel

Mississippi River Collaborative

Kelly McGinnis
Executive Director
Mississippi River Network

Heather Navarro
Executive Director

Missouri Coalition for the Environment Rachel Bartels
Director

Missouri Confluence Waterkeeper

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Dana Ripper
Director

Missouri River Bird Observatory

Craig Sterle
Division Past President

MN Division-lzaak Walton League of America

Meredith Diskin
Program Coordinator
Mobile Baykeeper

Patrice Tomcik

Project Manager, State Campaigns
Moms Clean Air Force

Eric Harder

Youghiogheny Riverkeeper
Mountain Watershed Association

Gray Jernigan

Southern Regional Director and Green

Riverkeeper

Mountain True

Darryl E Malek-Wiley

CEO

M-W & Associates

Cynthia Routledge
President

Nashville Chapter of Tennessee Ornithological
Society

Lawrence E. Couch
Director

National Advocacy Center of the Sisters of the Good
Shepherd

Ani Kame'enui

Deputy Vice President, Government Affairs

National Parks Conservation Association

Laura Daniel Davis

Chief of Policy and Advocacy

National Wildlife Federation

Veronica Bowers

Director

Native Songbird Care & Conservation

Diana and Byron Steskal

Nebraska Landowners

Nebraska Easement Action Team (NEAT)

George Cunningham
Board Member

Nebraska Wildlife Federation

Elliott Ruga

Policy & Communications Director
New Jersey Highlands Coalition

Susan Michelle Silber
Director

NorCal Resilience Network

Carrie Clark
Executive Director

North Carolina League of Conservation Voters

Matt Norton
Policy Director

Northeastern Minnesotans for Wilderness

Michael J. Goff
President and CEO
Northeast-Midwest Institute

Nina Bell

Executive Director

Northwest Environmental Advocates

Jonah Sandford
Staff Attorney

Northwest Environmental Defense Center

Gregory Remaud
Baykeeper & CEO
NY/NJ Baykeeper
William Rossiter
Vice President
NY4WHALES
Kathryn Heintz
Executive Director
NYC Audubon
Michael Stocker
Director

Ocean Conservation Research

Courtney Vail

Director of Strategic Campaigns
Oceanic Preservation Society

Damon Mullis

Executive Director/Riverkeeper
Ogeechee Riverkeeper
Rich Cogen
Executive Director
Ohio River Foundation
Jackie Antalan

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Director of Outreach & Programs
Operation HomeCare

Mark Salvo
Program Director

Oregon Natural Desert Association

Doug Heiken

Conservation and Restoration Coordinator
Oregon Wild
J. Sam Miller
Organizer

Our Water, Our Air, Our Rights

Vivian Stockman
Executive Director

OVEC-Ohio Valley Environmental Coalition

Brenda Curtis

Board Member & Conservation Chair
Peace River Audubon

Rev. Sandra L. Strauss

Director of Advocacy and Ecumenical Outreach

Pennsylvania Council of Churches

Howard Penn

Executive Director

Planning and Conservation League

Pat Lupo, OSB and Sarah Peelman

Co-chairs

PLEWA, Pennsylvania Lake Erie Watershed
Association

Peter Hudiburg
Founder

Plymouth Friends for Clean Water

Phillip Musegaas

Vice President of Programs and Litigation
Potomac Riverkeeper Network

Marcia Westkott
Chair

Powder River Basin Resource Council

Nancy Hilding
President

Prairie Hills Audubon Society of Western South Dakota

Ryan Grosso

Water Resources Associate
Prairie Rivers Network

Roseanna Sacco
President

Preserve Monroe

Lucia Bogatay
President

Presidio Historical Association

Alyssa Barton
Policy Manager
Puget Soundkeeper

Joe Siegrist
President/CEO

Purple Martin Conservation Association

John Ruskey
Owner, Founder
Quapaw Canoe Company

Tom Sobal
Director

Quiet Use Coalition

Phil Irwin
Vice President

Rappahannock League for Environmental Protection

Bill Shultz

Raritan Riverkeeper

Eleanor Hines

North Sound Baykeeper

RE Sources for Sustainable Communities

Marianne Cufone

Executive Director

Recirculating Farms Coalition

Jen Pelz

Rio Grande Waterkeeper

Rio Grande Waterkeeper (WildEarth Guardians)

Lisa Wittenborn

Program Director

Rivanna Conservation Alliance

Raj Shukla

Executive Director

River Alliance of Wisconsin

Katherine Baer

Director of Science and Policy

River Network

Barbara L. Walsh

Executive Director

Rockbridge Area Conservation Council (RACC)

Roz McClellan
Coordinator

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Rocky Mountain Recreation Initiative

Stacey Detwiler

Conservation Director

Rogue Riverkeeper

Don McEnhill

Executive Director

Russian Riverkeeper

Trygve B. Sletteland

Founder and Executive Director

Sacramento River Council (subsumed into Sa

River Preservation Trust)

David Harrison

Conservation Director

Salem Audubon Society

Diane Wilson

Executive Director

San Antonio Bay Estuarine Waterkeeper

Sejal Choksi-Chugh
Executive Director
San Francisco Baykeeper

Christine Canaly
Director

San Luis Valley Ecosystem Council

Gail Musante official signer
Sanford-Oquaga Area Concerned Citizens (S-
OACC)

Laura Early
Executive Director
Satilla Riverkeeper

Tonya Bonitatibus
Riverkeeper

Savannah Riverkeeper/Waterkeeper

Carol Campbell

Member

Save EPA

Joseph Bogaard

Executive Director

Save Our Wild Salmon Coalition

Kate McPherson

Narragansett Bay Riverkeeper

Save the Bay

Michael Rice Director Save
the Cape, Inc.

Gary Wockner

Executive Director
Save The Colorado
Kay Charter
Executive Director
Saving Birds Thru Habitat
Joseph Campbell
President

Seneca Lake Guardian, A Waterkeeper Affiliate

Matt Pluta

Choptank Riverkeeper

ShoreRivers

Dalai Aboulhosn

Deputy Legislative Director

Sierra Club

Carol Adams-Davis

Vice Chair

Sierra Club Mobile Bay Group

Sandra Seberger
Chairman

Sierra Club-Black Hills

Charles Marsh
Kathy Hawes
President
Executive Director

Sleepy Creek Watershed Association
Tennessee Clean Water Network

Snake River Waterkeeper
David Whiteside
Executive Director
Executive Director
Snake River Waterkeeper
Tennessee Riverkeeper
Dave Willis

Rhiannon Lewis-Stephenson
Chair

Communications and Development Coordinator

Soda Mountain Wilderness Council

The Environmental Protection Information

Laura Sue Fuderer

Conservation Chair

Barbara Heskins Davis

South Bend-Elkhart Audubon Society

Vice President Programs
Brad K. Evans

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Waterkeeper
Mike Petersen

South Platte River Waterkeeper

Executive Director
The Lands Council

Bob Lukinic
Conservation Chair
Steve Shimek

Southern Maryland Audubon Society

Executive Director
Sharon Yoker

Secretary of TriLakes Fly Fishers
Heather Smith

Southwest Missouri Fly Fishers

Grand Traverse Baykeeper

The Watershed Grand Traverse Bay

Lisa Rinaman
Riverkeeper
Ann Witsil

St. Johns Riverkeeper

Interim Executive Director
The Wetlands Conservancy

Suzannah Glidden
Co-founder
Paul Botts

Stop the Algonquin Pipeline Expansion (SAPE)

President & Executive Director

The Wetlands Initiative

Andre Mele

Executive Director

Drew McConville

Suncoast Waterkeeper

Sr. Managing Director, Government Relations

The Wilderness Society

Angela Howe

Legal Director

Richard McNutyt

Surfrider Foundation

President

Tidewaters Gateway Partnership Inc. Justin Bloom

Director

Jennifer Mckay

Tampa Bay Waterkeeper

Policy Director

Tip of the Mitt Watershed Council

Ashley Short

Riverkeeper & In-House Counsel
Tualatin Riverkeepers
Sandra Schubert
Executive Director
Tuleyome
Lee First

Twin Harbors Waterkeeper

Richard M Frank

Professor of Environmental Practice
U.C. Davis School of Law

Andrew Rosenberg

Director, Center for Science and Democracy

Union of Concerned Scientists

Guy Alsentzer

Executive Director

Upper Missouri Waterkeeper

Mary Rafferty

Executive Director

Virginia Conservation Network

Christina Hausman Rhode

Executive Director

Voyageurs National Park Association

David Groenfeldt, PhD
Director

Water-Culture Institute

Betsy Nicholas

Executive Director

Waterkeepers Chesapeake

Jen Lomberk, Esq.

Vice Chair, Waterkeepers Florida

Waterkeepers Florida

Rhiannon Tereari'i Chandler-'lao Executive Director

Waterkeepers Hawaiian Islands

Angie Rosser

Executive Director

West Virginia Rivers Coalition

Troy Redding

Community Organizer

Western Colorado Alliance

Barbara Vasquez

Oil and Gas Chair

Western Organization of Resource Councils

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Larry Baldwin
Advocacy Director

White Oak-New Riverkeeper Alliance

Jeremy Nichols

Climate and Energy Program Director
WildEarth Guardians

Christine Ellis
Executive Director
Winyah Rivers Alliance

Julie E Wille

Co-founder of Women for Wild Lands

I, Richard Moore, Chair of the National Environmental Justice Advisory Council, certify that
this is the final meeting summary for the public meeting held on August 19-20, 2020, and it
accurately reflects the discussions and decisions of the meeting.

11/19/2020

Richard Moore, NEJAC Chair

Date

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