NCD980602163_19990422_Warren County PCB Landfill_SERB C_ECOS letter to US-EPA Office of Civil Rights-OCR

MEMO
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From: _______ _
North Carolina Department of Environment,
Health, and Natural Resources @ PrinledonRe~ledPaper
.·04 /22199 THU li:06 FAX [phone] --.-•---r---J,..-..:.J.....,_ E.C.O.S. ➔➔➔ NC ECOS
ECO S
THE
ENVIRONMENTAL
COUNCIL OF
THE STATES
444 North Capitol
Street, N.W.
Suire 305
Washington, D.C.
2000!
T c:I : [phone]
Fa.-c [phone]
email: [e-mail]
webp:ag~: \\'\vw.sso.org/ecos/
Rober,: W. Varney
Commissionor. ~~
1-hmp,hi.e D,:p•rtm•~t 0£
En•nro:-irr:c:i!.JI Services
PRESD'.::'-1
R. Lewis Shaw
O:ruty Com...,-,issionC'T,
Scurh C~roli:-:,
D,p,r,,:1cn1 of Health ~nd
En1iron:r:e~:=I Control
\,KE PR.ES!OE~'T
George E. Meyer
Socr;r~ry. \\'i,consin
Dc::.lrt:r.e:-:: of
~::m:~1 Rt:"t0urcc!
SEC RE, ARY TREASURER
Roberr C. Shinn, Jr.
Com:i~i:,:::ioncr, 1''cw
J:~ey D~p:irnncnt of
Em:irvnrr:en□l !"rot,crion
P.,ST PR!::SIDENT
Rob::n E. Roberts
E:'\c::::ti\'~ Dirci.:tor
Ms. Ann Goode, Director
Office of Civil Rights
April 22, 1999
United States Environme(ltal Prc,tection Agency
401 M Street, S.W. (1201)
Washingron, DC 20460
Dear Ms. Goode:
On March 10, 1999, you met with Mr. Robbie Roberts, Executive Director, and
Ms. Carol Leftwich, Project Manager for Environmental Justice, of the Environmental
Council of the States (ECOS) and outlined your plans for the remainder of the ye3r
regarding the development of guidance under Title VI, Civil Rights Act of 1964. In
that meeting, you invited states to submit comments directly to you pr through ECOS
regarding the guidance. l11is letter provides a number of comments from the states and
territorial environmental commissioners.
'The states are committed to environmental justice values. As we have
previously stated in a number of forums, states believe· that no segment of the
population should, because of its racial or ethnic make up, bear a disproportionate share
of the risks and consequences of environmental pollut .on or be denied access to
environment.al benefits. State environmental departm•:nts are, and must be, fully
commined to equitable treatment of all citizens. w~ find no conflict between the
requirements to protect the public health and to protect civil rights. We believe that
both can be accomplished, and we are committed to d )ing so.
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We recognize how difficult it may be to accomplish these goali. for at least two reasons. First,
we do not start \Vith a clean sheet upon which to write our programs. l!ldustrial development and local
planning decisions were being made many years before the passage of· 11e Civil Rights Act of 1964.
In 1964 environmental regulations were, in many ways, in their infancf. In many instances, industrial
facilities were sited and industrial areas determined ai: a time when the racial composition of the area
was significantly different from what it is today, Second, many of the jecisions \Vhich bear on these
issues, such as land use/zoning, are made by local governmental entities that have'the best perspective
on how to make these decisions. Implementation of ~nvironmental justice programs will require close
cooperat:ion among various levels and kinds of government.
We believe stites that voluntarily choose to adopt environmental justice programs and commit
resources to those programs must receive recognition of that activity i11 the processing of Title VI
complaints. Some credit or deference should be given in either proces~ ing time frames or the burden
of proof borne by the complainant. A "fast track" consideration of the complaints might be one
possible incentive to encourage more states to develop environmen~l .iustice programs. Most agencies
face resOL1rce constraints, which necessitate e-.·aluation of benefits and costs when deciding to allocate
resources to specific activities. Implementing environmentaljustice programs does not guarantee that
concerned cirizens will panicipate in the program, nor does it create a prohibition on complaints.
We regret that the United States Environmental Protection Agency (U.S. EPA) has determined
that meeting with state environmental commissioners about this subje ;ton a regular basis is not
possible wirhom violating the Federal Advisory Committee Act (FACA), the Paperwork Reduction
Act, and perhaps others. Jr should be noted that the states are not stak~holders, but are co-regulators.
It should also be noted that the agency had commirred to the establish nent of such a group. We
appreciate the straightforward acknowledgement ths.t the commitmen1 was in fact made and could not
now be kept. However, that inability does not diminish the irnportanc,! of states contributing to the
development of a new policy.
We commend the members of the Tirle VI FACA committee for their \vork. The principles
that they have stated arc, in many inscances, excellent. It should be n,,ted, however, that the
comminee failed to reach consensus on the majority of the issues. W2 also remain concerned about
the lack of specificity in relevant definitions, procedures, and timefranes.
Further, we do nol understar1d the neeci for an "internal'' guidance and an "external" guidance,
and do noc agree that such a division is necessary. Jssuing two differ,:nt guidance documents may
resulr in conflicts between the guidances. We continue to stress the i nportance for a single statement
that could be understood and used by all panicipants.
Fundamental Principles
Definicion of Impact/Disparate Impact: We believe in cases alleging a Title VI violation of
health based standards that "impact" means "exposure" and that "dis ,arate impact" means kvels of
exposme which subje~t a group to substantially greater health risks t'ia.n another group. Compliance
with such health based;-Gtandards creates a rebuttable presumption. \Ve believe the central rule in the
Select Steel decision is that where there is no adverse impact from a proposed environmental action,
rhere can be no finding of a discriminatory effect ,vhich would viola· e Title VI. While we believe it
may be possible to mitigate adverse impacts frorn specific environm-mtal actions, the decision \Vhether
to pursue both the project and the mitigation should be made in consultation with the community to be
affected.
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Clarity of Program: We believe that fundamental requirements are clarity of terms, predictability, and
certainty. If we are to administer these programs effectively, we mu~t u 1derstand what is required and
what actions constitute compliance. The parameters for program complimce must be clearly stated.
Compatibility with Other Programs: As stewards of the environment wi :h primary, day-to-day
responsibility for environmental protection, we are concerned that legitimate environmental justice
concerns not conflict with other important public interests. As we have previously expressed to you,
we are very concerned that envirornnental justice policy must be consis :ent with efforts to clean up
brownfields, reinvigor1:1te inner city areas, and protect existing greenfields. ,
Timeliness of Consideration: Consideration of Title VJ issues must be 3ccomplished in a timely
manner, and the Title VJ complaint process must not become an alternative to, for example, the permit
process. If Title VI complaints are to be accepted up to 180 days after 1 he event upon which the
complaint is based, the value of the permit process is greatly undermined. Title VI considerations
must be incorporated early imo both the permit and the other environm ~ntal decision-making
processes of government. Once these considerations have been honestly and thoroughly considered,
further complaints in the same area should be accepted only fo rare cas:s. Timeframes must also be set
for investigation and resolution of accepted complaints.
Scope of Consideration: We believe that Title VI corn plaints should Mt be accepted for consideration
by the U.S. EPA when they allege a disparate impact which the state e11vironmental agency has no
authority to consider. In short, if the state could not consider it, the feceral government should not
consider ir. For example, environmental permits are often required for facilities that possess
undesirable traits that are not regulated (e.g. increased traffic, declining property values). While there
are many bases upon which an environmenraljustice complaint to sucl1 a facility might rest--
discharge to a body of water being the clearest example--artributes wh .ch are not part of a state
agency's regulatory .authority should not be the basis for such a comp! 1.int.
Public Participation: We believe that the quality of public participatior1 rests in large part on the early
identification and involvement of affected groups and individuals as" ell as the timely dissemination
of accurate, reliable and understandable information on the impacts which facilities have on the
environment. Current state programs have madc:: substantial progress n that area. \Ve believe that
better infonnation, gathered in a more timely manner, and made available to the public more quickly
may improve the qllality of public participation by providing needed ca.ta. This responsibility is
shared with local governments when zoning decisions are made and by industry when siting decisions
are made. Both of these decisions nom1al!y occur before states receive a permit application.
When we do receive a permit application, almost all states ha·,e public notice and participation
requirements which ensure that sufficient notice is given to a commu11ity of a proposed governmental
action. We believe that federal officials seeking to ensure that citizens receive such notice and have an
opportunity to make their views known should accord these program! significance. We note that in
addition to public noti;::e requirements, citizens may have a number o:~opportunities to influence
environmental and faci1iry siting decisions--through federal, state, ml nicipal, and other elections of
officials; through votes on public indebtedness to support facilities (bonding authority); through the
initiative and referendum process where it exists; through access top .1blic media; and in a number of
other \Vays. Citizens who oppose particular environmemal decisions are, quite simply, not limited to a
choice between the Title VI process and acceptance of an environme1ital risk.
ECOS stands ready to assist yoll in any way to distribute information to environmental
commissioners; to survey them regarding their programs, attitudes, a 1d concerns: and to provide you
\Vith a forum whenever you believe that such activity would be beneiicial to the resolution of these
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issues. We look forward to continuing to work with you on this impor:ant national issue. This letter
was approved to be sent by the ECOS membership at their Spring Mec:ting, Mar.ch 30-April 1, in
Charleston, South Carolina.
Sincerely,
Robert W. Varney
Commissioner
New Hampshire Department of Environmental Services
ECOS President
R. Lewis Shaw
Deputy Commissioner, SC
Department of Health and
Environmental Control
£COS Vice-President
George Meyer
Secretary, WI Depaitment
of Natural Resources
ECOS Secretar1-TrE:asmer
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Roh!rt C. Shinn, Jr.
Conmissioner, NJ
Department of
Enviro11mental Protection
ECC S Past President