NCD980602163_19980901_Warren County PCB Landfill_SERB C_Soil and Groundwater Cleanup - Environmental justice guidance lacks any definitive guidelines-OCR

eon ECOS
Environmental justice guidance
lacks any definitive guidelines
By William Kucharski
ye on ECOS is a column that is designed to
provide up to date information on the
states. This issue's article concerns
environmental justice, a topic that is of
utmost importance to anyone who has any
responsibility for permitting or plant
location selection. In 1994, as Secretary of the Louisiana
DEQ, I wrote the first permitting decision in the
country that directly addressed environmental justice
issues. I stated in that decision that there were no
relevant or consistent standards by which to measure
environmental justice nor was there any definition as to
what environmental injustice meant.
It is four years later and we are no closer to having
these definitions today than we were when I wrote my
decision. Comments on this article and on the topic
itself are welcomed. There is a long road ahead of us
upon which many, many intense debates will have to
occur before this issue will be settled.
William Kucharski is former Secretary of the Louisiana
Department of Environmental Quality. He can be reached
at [e-mail]. Robert E. Roberts is the
executive director of EGOS. Molly Conrecode is editor of
ECOStates. Carol Leftwich is project manager for
several EGOS projects.
By Robert E. Roberts,
Molly Conrecode, and Carol Leftwich
In the past year, the two most important movements
in the second half of the 20th Century have come into
confh.tencP. in a potential conflict that is less about
environmental protection and civil rights than it is
about federal mandates, the rights of state and local
governments to govern, and determining who is to
decide environmental issues. The unfortunate losers in
this contest may be the minority communities although
the program is designed for their protection.
Organizations in communities near industries became
alarmed that their communities might be exposed to a
disproportionate and dangerous amount of pollution
associated with the industries. These groups, often
aided by environmental or legal groups, filed suits or
complaints under Title VI of the 1964 Civil Rights Act
which outlaws discrimination under any program or
activity receiving federal financial assistance.
As state environmental agencies receive federal
monies to implement EPA regulations, and as those
state agencies often make the permitting decisions
which allow industries to operate, the complaints or
suits were directed toward the environmental agencies,
alleging that the agencies had been guilty of
discrimination.
There was almost always no evidence that such
decisions were intentionally discriminatory. States
work to make permitting decisions based only on the
facts presented. Nonetheless, there was a feeling of
environmental and civil rights violations. After the
number of complaints reached a substantial number,
EPA issued Interim Guidance for Investigating Title VI
Violation Co111ploints Challenging Permits.
26 August/September 1998 Soil & Groundwater Cleanup
Reactions to the Guidance
Reaction to the Guidance has been almost uniformly
negative. The National Association of Black County
Officials (NABCO) opposed the Guidance in April. The
letter from NABCO stated: "The Guidance as proposed
is punitive to local governments and does not facilitate
the continued growth of community-level participation
in environmental protection."
The National Association of Counties had already
taken a strong position regarding what they see as a
loca l issue, and they reiterated that position in May in
a letter to the EPA. Two days later, 14 State Attorneys
General went on record with their concerns about the
Guidance. Late in June, the United States Conference of
Mayors passed a resolution also asking that the
Guidance be suspended.
ECOS first raised the issue with EPA in February 5
letter to EPA Administrator Carol Browner asking that
states be extended the maximum opportunity to help
draft the document, and that EPA not promulgate,
implement or rely upon draft guidance until the states
could become involved. ECOS has established a
workgroup to address these issues with the Guidance
and the broader subject of environmental justice. This
workgroup is headed by Russ Harding, director of the
Michigan Dept. of Environmental Quality.
On March 26, at the spring meeting in New Orleans,
ECOS passed a resolution which, mncng other things,
calls upon EPA to withdraw the Guidance until
outstanding issues can be worked through. Five state
commissioner have been appointed to the Title VI
Implementation advisory committee. They are:
Harding; Robert Shinn, commissioner of the N.J. Dept.
of Environmental Protection and president of ECOS;
Jane Nishida, secretary of the Maryland Dept. of
Environment; Lang Marsh, director of the Oregon
Dept. of Environmental Quality; and Barry McBee,
commissioner of the Texas Natural Resource and
Conservation Commission.
The group is to make recommendation$ to Browner
before the end of the calendar year. ECOS also has a
representative on the National Environmental Justice
Advisory Committee. Addressing many of these same
issue, ECOS has also established a location on its
homepage -www.sso.org/ecos -to post the
environmental justice policies of various states.
On June 18, 34 state commissioners signed a letter to
Browner offering to help meet the environmental
justice demands inherent in all of their positions. Two
more commissioners joined the letter later to bring the
total to 36. Under development are a workshop for
states to share ideas about state environmental justice
programs and a conference next year to address the
recommendations made by the Title VI committee.
Continues on page 28 ➔
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Eye on ECOS, from page 27
Problems with the Guidance
Why has the reaction to EPA' s efforts been so
negative? Unfortunately, the Guidance doesn't provide
much guidance. It states that actions that result in a
discriminatory effect violate Title VI and that EPA
"will determine whether the permit at issue will create
a disparate impact or add to an existing disparate
impact on a racial or ethnic population."
Disparate impact is not defined, nor are there any
indicators for measuring it. No procedure is suggested
for measuring a cumulative impact or what that phrase
might mean. No guidance is given on how to assign
responsibility for impacts from a variety of sources.
Assume, for example, a location exists with four
facilities making discharges to the air. One is new and
needs a permit. One needs a permit renewal. One
needs a permit modification not related to discharge.
One is fully permitted. Assume further that, through a
procedure not yet specified, this cumulative impact
which is not as yet defined is found by EPA to be
disparate. Whose permit gets denied?
Equally important, the Guidance does not consider
the geographic parameter of disparate impact. How
does one define the disparate impact-shed? Do the
environmental risks have to be borne by the
community immediately surrounding the facility? Or
are impacts measured that may take place much
further away?
A more subtle failing of the Guidance is the lack of
suggested solutions when the local minority
community has, through a democratic process,
supported a facility only to have it stopped by groups
from outside the community or, perhaps, from outside
the state. To whom must the state environmental
department and EPA listen?
The Guidance discusses that disparate impact
arguments can be made for any number of
environmental impacts stemming from any media in a
facility. Does this mean that separate consideration
must be made for every potential risk? The reporting
and permitting required by this rule might pose a
heavy burden on both the regulator and the regulated
community.
The document also suggests that the burden of proof
-or disproof -is on the state. Once there is an initial
finding of disparate impact, the burden of proof shifts
to the state to disprove, justify or mitigate rather than
resting on the complainant to show harm. In fact, no
health harm is required to be shown, nor are there any
ways indicated to justify or mitigate the impact,
though both are addressed as possibilities in the
Guidance.
Major deficiencies in the Guidance
While all of these issues are important, four potential
impacts seem most critical.
• The system may encourage industrialization in
greenfields because such an action may avoid the issue
of cumulative impact and may lack minority
communities to raise the issue. This may increase
environmental damage rather than reduce it. Such
development is also inconsistent with newly
established growth management or sustainable
development programs, as it encourages industries to
move out of central urban areas to cleaner, greener
spaces.
• The system may discourage redevelopment of
brownfields because it does not encourage industries
to occupy space where other facilities reside or where
urban areas are searching for economic redevelopment
through increased tax base and employment
opportunities. These areas tend to be located in urban
centers and tend to have large minority populations. ln
other words, two programs designed by EPA to
improve the lot of minority groups appear to be in
direct opposition.
• The system may encourage industrial flight offshore
where businesses won't be burdened with repetitive
permitting. This would not only undermine economic
development in our states, but it might add to global
environmental problems if offshore facilities do not
maintain the same standards required by U.S.
jurisdictions.
• The system unnecessarily affects the division of
governmental re~ponsibilities among local
government, states and the federal government. Local
zoning and land use decisions are local government
decisions. The Guidance suggests a federal permitting
system for environmental justice compliance. For
example, a local zoning decision establishes an
industrial zone. The state approves a permit for a
facility to be built in the locally designated industrial
zone only to have the federal environmental agency
overrule that decision.
ECOS does not have a lack of interest in equal
treatment. Rather, ECOS members believe state
environmental agencies are probably more sensitive: to
the issues of fair treatment that serve as a basis for
environmental justice than the EPA is if for no other
reason than that state agencies are generally more
accessible to people with complaints than a federal
agency.
If people do not like actions taken by their state
agencies, their redress of grievances runs directly
through their state legislative representative to the
agency's budget and procedures and through the
voting booth to the agency's ultimate boss -the
governor.
However, guidance which is not thought through,
which is contrary to other efforts to help
disadvantaged groups, and which cannot be
administered does not help anybody or anything-
not the regulator, not the regulated community, not the
protected community and not the environment.I
28 August/September 1998 Soil & Groundwater Cleanup