[Senate Hearing 110-1106]
[From the U.S. Government Publishing Office]
S. Hrg. 110-1106
OVERSIGHT OF EPA'S ENVIRONMENTAL JUSTICE PROGRAMS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON SUPERFUND AND ENVIRONMENTAL HEALTH
of the
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
JULY 25, 2007
__________
Printed for the use of the Committee on Environment and Public Works
Available via the World Wide Web: http://www.fdsys.gov
__________
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut JOHN W. WARNER, Virginia
THOMAS R. CARPER, Delaware GEORGE V. VOINOVICH, Ohio
HILLARY RODHAM CLINTON, New York JOHNNY ISAKSON, Georgia
FRANK R. LAUTENBERG, New Jersey DAVID VITTER, Louisiana
BENJAMIN L. CARDIN, Maryland JOHN BARRASSO, Wyoming1
BERNARD SANDERS, Vermont LARRY E. CRAIG, Idaho
AMY KLOBUCHAR, Minnesota LAMAR ALEXANDER, Tennessee
SHELDON WHITEHOUSE, Rhode Island CHRISTOPHER S. BOND, Missouri
Bettina Poirier, Majority Staff Director and Chief Counsel
Andrew Wheeler, Minority Staff Director
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1Note: During the 110th Congress, Senator Craig
Thomas, of Wyoming, passed away on June 4, 2007. Senator John
Barrasso, of Wyoming, joined the committee on July 10, 2007.
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Subcommittee on Superfund and Environmental Health
HILLARY RODHAM CLINTON, New York, Chairman
MAX BAUCUS, Montana LARRY CRAIG, Idaho
FRANK R. LAUTENBERG, New Jersey DAVID VITTER, Louisiana
BENJAMIN L. CARDIN, Maryland CHRISTOPHER S. BOND, Missouri
BARBARA BOXER, California, (ex JAMES M. INHOFE, Oklahoma, (ex
officio) officio)
C O N T E N T S
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Page
JULY 25, 2007
OPENING STATEMENTS
Clinton, Hon. Hillary Rodham, U.S. Senator from the State of New
York........................................................... 1
Boxer, Hon. Barbara, U.S. Senator from the State of California... 4
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 91
Craig, Hon. Larry E., U.S. Senator from the State of Idaho....... 92
WITNESSES
Solis, Hon. Hilda L., U.S. Representative from the State of
California..................................................... 6
Prepared statement........................................... 8
Nakayama, Granta, Assistant Administrator, Office of Enforcement
and Compliance Assurance, U.S. Environmental Protection Agency. 12
Prepared statement........................................... 13
Responses to additional questions from:
Senator Clinton.......................................... 16
Senator Inhofe........................................... 17
Najjum, Wade, Assistant Inspector General for Program Evaluation,
Office of Inspector General, U.S. Environmental Protection
Agency......................................................... 18
Prepared statement........................................... 19
Responses to additional questions from Senator Inhofe........ 22
Stephenson, John B., Director, Natural Resources and Environment,
U.S. Government Accountability Office.......................... 23
Prepared statement........................................... 25
Responses to additional questions from Senator Inhofe........ 33
Mitchell, Harold, South Carolina State Legislature............... 41
Prepared statement........................................... 43
Responses to additional questions from Senator Clinton....... 44
Bullard, Robert, director, Environmental Justice Resource Center,
Clark Atlanta University....................................... 45
Prepared statement........................................... 46
Responses to additional questions from Senator Inhofe........ 53
Steinberg, Michael W., Business Network for Environmental Health
Action......................................................... 56
Prepared statement........................................... 58
Responses to additional questions from Senator Clinton....... 66
Shepard, Peggy, executive director, West Harlem Environmental
Action......................................................... 66
Prepared statement........................................... 68
Wright, Beverly, Ph.D., founder and director, Deep South Center
for Environmental Justice...................................... 72
Prepared statement........................................... 74
ADDITIONAL MATERIAL
Statements:
Miller, Paula, executive director, Alaska Community Action on
Toxics,.................................................... 93
Benson, Eugene B., Legal Counsel, Alternatives for Community
& Environment, Inc......................................... 102
Asian Pacific Environmental Network (APEN)................... 105
Comite De Apoyo A Los Trabajadores Agricolas (C.A.T.A.)
Farmworkers Support Committee.............................. 107
Community In-power and Development Association Inc. (CIDA
Inc.)...................................................... 112
Center on Race, Poverty & the Environment, San Francisco, CA
and Delano, CA I60114-120..................................
Williams, Craig, director, Chemical Weapons Working Group.... 121
Holt-Orsted, Sheila.......................................... 124
Lawyers' Committee for Civil Rights Under Law................ 129
Mohai, Paul, professor, Natural Resources and Environment,
University of Michigan..................................... 132
National Black Environmental Justice Network................. 136
Gilje, Kathryn, executive director, Pesticide Action Network
North America.............................................. 143
Williams, LaDonna, executive director, People for Children's
Health & Environmental Justice............................. 145
Fields, Leslie G., director, National Environmental Justice,
Sierra Club................................................ 152
Southwest Workers' Union..................................... 159
Charts:
Facilities with Enforcement Actions:
Minority Percent by Census Blockgroup.................... 161
Percent Poverty by Census Blockgroup..................... 162
Letters from:
Harden, Monique, Advocates for Environmental Human Rights;
Wright, Beverly, Deep South Center for Environmental
Justice at Dillard University; Dashiell, Pam, Holy Cross
Neighborhood Association; Subra, Wilma, Louisiana
Environmental Action Network; Huang, Al, Natural Resources
Defense Council; White, Bryce, People's Environmental
Center and Malek-Wiley, Darryl, Sierra Club, Louisiana,
June 8, 2007 to Mike D. McDaniel........................... 163
McDaniel, Mike D., Ph.D., Secretary, Department of
Environmental Quality, July 9, 2007 to Wilma Subra......... 167
Reports:
GAO-05-289, EPA Should Devote More Attention to Environmental
Justice When Developing Clean Air Rules, July 2005 I60168-
224........................................................
EPA, Office of Inspector General, EPA Needs to Consistently
Implement the Intent of the Executive Order on
Environmental Justice, Report No. 2004-P-00007, March 1,
2004 I60225-297............................................
EPA, Office of Inspector General, EPA Needs to Conduct
Environmental Justice Reviews of Its Programs, Policies,
and Activities, Report No. 2006-P-00034, September 18, 2006
I60298-319.................................................
United Church of Christ, Justice and Witness Ministries,
Toxic Wastes and Race at Twenty 1987-2007, Grassroots
Struggles to Dismantle Environmental Racism in the United
States, Principal Authors: Robert D. Bullard, Ph.D.; Paul
Mohai, Ph.D.; Robin Saha, Ph.D.; Beverly Wright, Ph.D.,
February 2007 I60320-338...................................
Article, Essence, July 2007, Troubled Waters, by Cynthia Gordy
I60339-345.....................................................
OVERSIGHT OF EPA'S ENVIRONMENTAL JUSTICE PROGRAMS
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WEDNESDAY, July 25, 2007
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Superfund and Environmental Health,
Washington, DC.
The subcommittee met, pursuant to notice, at 2 p.m. in room
406, Dirksen Senate Office Building, Hon. Hillary Rodham
Clinton (chairman of the subcommittee) presiding.
Present: Senators Clinton and Boxer.
STATEMENT OF HON. HILLARY RODHAM CLINTON, U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Clinton. Good afternoon, everyone, and welcome to
the Subcommittee on Superfund and Environmental Health
oversight hearing on EPA's Environmental Justice Programs.
I would like to thank all of you for joining us today, and
especially those who have traveled from communities in New
York, Louisiana, California, Tennessee, South Carolina, many
places around our country.
Community groups from across America, from Alaska to New
York, submitted statements about their difficult pursuit of
environmental justice. If there is no objection, I would like
to include their written statements as testimony in the record
of this hearing. I hear no objection.
Today's hearing represents the first Senate hearing in
history devoted to environmental justice. One only needs to
look at the statements submitted by concerned citizens and
community organizations ranging from the Asian Pacific
Environmental Network to the Farmworkers Support Committee to
the Sierra Club, to so many others, to understand the critical
importance of this issue to so many of our fellow citizens.
These personal stories and community challenges represent a
record of injustice, a record of children growing up with
asthma that keeps them home from school; suffering from lead
poisoning that harms their ability to learn and reach their
God-given potentials; a record of families living within steps
of toxic waste facilities; neighborhoods where polluted air
poses health risks.
I am entering these statements into the record because they
remind us that this is an issue that touches millions. Today,
millions live in fear that the air is unsafe to breathe, the
water unfit to drink, their home unhealthy to raise their
children in. We know that these are predominantly communities
of color and low-income populations.
Therefore, I think it is imperative that we understand we
have a moral duty to act.
A 2005 Associated Press analysis of EPA air data found that
African Americans were 79 percent more likely than their white
counterparts to live in an area where the levels of air
pollution posed health risks. About one half of lower income
homes in our Nation are located within a mile of factories that
report toxic emissions to the EPA.
Hispanic and African American children have lead poisoning
rates that are roughly double that of their white counterparts.
This is a particular problem in many parts of my State and in
older communities across our country where the housing stock is
older, and unfortunately therefore more prone to produce
unacceptable levels of lead in children's blood.
Asthma rates in East Harlem, New York, a predominantly
lower income community of color, Hispanic and African American,
are among the highest in the Nation.
I have proposed several pieces of legislation to address
these environmental injustices and to help those living with
the consequences. When Congress passed the Brownfields law, I
included a provision to target funding to communities with
higher incidence of diseases such as cancer. My Home Lead
Safety Tax Credit Act of 2007 would help to make more than
80,000 homes safe from lead each year, nearly 10 times the
capacity of current Federal efforts.
My Family Asthma Act to strengthen our study of
environmental pollution linked to asthma would help patients
better manage the disease.
I am proud of my bipartisan work on environmental justice
and proud of the work of the Clinton administration. In 1994,
the Clinton administration required all Federal agencies to
make environmental justice part of their mission and created an
Interagency Work Group on Environmental Justice to coordinate
justice activities. Throughout the Clinton administration, the
EPA worked to develop and carry out the mandate that
environmental justice was not just a rallying cry, but a real
priority of our Nation.
This is not and should not be a Democratic or Republican
priority. In fact, under the first Bush administration, the EPA
released several reports on what was then known as
environmental equity, now called environmental justice.
Unfortunately, but not surprisingly, this bipartisan priority
stops at the steps of the White House under this President, who
for 6\1/2\ long years has allowed ideology to trump science and
evidence, and permitted politics to make decisions.
The current Administration has taken us backward, and it is
millions of low-income families and citizens of color who pay
the price. The EPA has refused to recognize the crystal clear
evidence. Your income and your skin color is a good indication
of how clean your air will be when you take a breath.
The EPA has failed to take action on environmental justice
and rolled back many of the gains that we made during the
1990's. Documents from the EPA Administrators from 2001 and
2005 downplay the disproportionate impact of environmental
problems on lower income and minority communities. The
Interagency Working Group formed by the Executive order is
idling, maintaining only programs started during the Clinton
administration. The National Environmental Justice Advisory
Committee which used to meet on at least an annual basis has
not convened for a full public meeting since 2004, according to
the EPA's Website.
The Agency's failures were catalogued in a report released
earlier this year by the United Church of Christ. This report,
called Toxic Wastes and Race at 20, states that the
environmental justice movement faltered and became invisible at
the EPA under the George W. Bush administration.
A 2004 report from the EPA Office of the Inspector General
found the following: EPA has not fully implemented Executive
Order 12898, the Order issued by President Clinton, nor
consistently integrated environmental justice into its day to
day operations. In 2005, the wholly nonpartisan Government
Accountability Office released a report titled, EPA Should
Devote More Attention to Environmental Justice When Developing
Clean Air Rules. The GAO concluded that the agency has failed
to consider environmental justice in making rules that protect
families from environmental degradation and pollution.
In 2006, the Office of the Inspector General released
another report on the EPA's environmental justice record,
concluding that EPA's senior management had not sufficiently
directed program and regional offices to conduct environmental
justice reviews.
Under the Bush administration, the EPA has not lived up to
its mission to protect health and the environment. Far too many
Americans with lower incomes or from communities of color do
not have equal access to protections that safeguard health,
well being, and the potential of children and families. It is
separate. It is unequal, and it is wrong.
As I said at the outset, this hearing is a first in and of
itself, the first Senate hearing devoted exclusively to
environmental justice programs. But in my view, it is just a
first step. We have a lot more work to do on this issue as we
will explore in today's hearing. But I want to let everyone who
is here today, who is watching on the Web, who has submitted
testimony, I am committed to working with you, along with my
Chairwoman, Senator Barbara Boxer, to restore environmental
justice as a priority at EPA.
I am announcing two followup steps at this hearing. First,
I will be introducing legislation to address some of the
environmental justice concerns we have identified. The
legislation will increase Federal accountability by making sure
the Environmental Justice Working Group addresses environmental
justice concerns that cross agencies and issues, such as
housing and transportation.
Second, we want to help build community capacity through a
grant program to help communities engage in this kind of local,
multi-agency work, building on a pilot program initiated under
the Clinton administration.
Third, we want to provide access to experts by establishing
an Environmental Justice Clearinghouse to help connect
communities with technical experts who can help them address
their environmental justice issues.
Finally, I want to announce that I will be holding a
Superfund oversight hearing in my subcommittee this fall. This
is something that Senator Boxer and I both think is a critical
priority. She has been a champion of Superfund cleanup and of
dealing with these environmental justice issues for as long as
she has been in public life. She was the first person who
memorably said that when it comes to protecting the health of
our children from pollution, we cannot think of children as
miniature adults. They are much more susceptible to things like
asthma, lead poisoning and so much else.
So I am delighted to be able to convene and chair this
subcommittee hearing. I especially want to thank the
Chairwoman, because Senator Boxer's leadership on this
committee is a breath of great fresh air. We are dealing with
issues that need to be addressed, and under her leadership we
are going to make progress in a bipartisan way dealing with the
environmental and health issues confronting Americans.
Senator Boxer.
STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE STATE OF
CALIFORNIA
Senator Boxer. Senator Clinton, thank you so much. I am so
proud that you are on my committee. I am so pleased that you
chair this subcommittee. Your leadership is so important.
I think your two announcements today are very important to
me. One, your bill that you have outlined is very important and
I hope I could have the honor of being your first cosponsor
because I love what you have done here to make it simple, to
pull everything together, and to give communities the resources
they need.
I am very proud that Hilda Solis is here, by the way. I
think she has been a tremendous leader and we work together all
the time because unfortunately Congresswoman Solis sees some of
the problems first-hand in her District and needs our help.
Senator Feinstein and I are always proud to stand with her.
I also want to say that there are three people in the
audience I would like to recognize briefly, and hope that in
the next hearing that we have in the fall on Superfund that you
will allow them to be on the panel, because I think they have a
lot to say: LaVonne Stone, who is president and executive
director of the Fort Ord Environmental Justice Network and Tina
Acosta--will you stand Tina and LaVonne?--a community activist
with the Fort Ord Environmental Justice Network. They are a
Federal facility on the national priorities list and Superfund
site. EPA calls this the second most contaminated site in the
country. So I think having them would be great.
The third person is LaDonna Williams. If she would rise at
this point. She is with the People for Children's Health and
Environmental Justice in Vallejo, Midway Village residence,
that is where she is. They live directly on top of a Superfund
site that has over 400 toxins. So at the next hearing, I hope
we can work it out with your concurrence to have them come,
because we need to hear their voices. So I want to thank the
three of you for being here today.
Let me just ask unanimous consent to put my statement in
the record, and I will summarize it.
The environmental justice movement started at the
grassroots level in an effort to protect minority and low-
income people from the unfair burden they often bear from
dangerous pollution in their communities. Studies have shown
continually that toxic waste dumps are located in minority and
low-income communities far more often than would happen by pure
chance. There is a plan involved.
In fact, we will hear today from respected experts such as
Dr. Robert Bullard that key studies show that a community's
predominant race is the most important factor in predicting the
location of commercial hazardous waste dumps, more important
than the neighborhood's average education, income or other
characteristics.
Madam Chair, this is immoral. I am so glad that you are
having this hearing so we can wake up America to this fact. It
is just plain wrong that communities of color have to shoulder
an unfair pollution burden. It is an injustice that a child
born in a predominantly African American or Latino community
may face a bigger health threat from pollution than other
children in nearby communities.
Unfortunately, we will hear from the EPA Inspector General,
the Government Accountability Office, and independent academic
experts recent EPA actions have undercut efforts to ensure
environmental justice, as Senator Clinton has pointed out. This
Administration has gone so far as to redefine the term
``environmental justice'' so as to undercut the focus on racial
disparities. They have failed to carry out, again as our
Chairwoman has pointed out, the Executive order adopted by
President Clinton requiring strong steps to assure
environmental justice.
So whether it is in your State of New York or my State of
California or anywhere in between, we see people hurt. They are
hurt by the exposure to dangerous poisons; hurt again when
their own government fails to put into place the important
protections meant to help their children and families.
I think it is important to note that nationally
neighborhoods within 1.8 miles of a commercial hazardous waste
facility are 56 percent minority. Let me say it again.
Neighborhoods within 1.8 miles of a commercial hazardous waste
facility are 56 percent minority, according to the study that
Dr. Bullard will share with us, and Dr. Wright will share with
us.
So the facts and figures are there. The facts are there.
Real strides were made, and this is the sad part, real strides
were made under the Clinton administration and we thought this
fight was over. We sort of sat back and thought, well, we
fought that battle. But you know what you learn around here,
and Senator Clinton often talks about it, no fight is ever
really won as long as the sun comes up in the morning and there
are special interests out there who want to take away progress.
So Senator Clinton was the first female Senator to say to
me, you know, Barbara, every day we get up, we put on our suit,
and we get ready for battle. We are ready for battle on this.
Again, I will be by Senator Clinton's side. This is her
subcommittee. I have delegated her this responsibility to
handle these issues, environmental justice, Superfund, and we
couldn't have a better advocate.
Thank you, Senator.
Senator Clinton. Thank you very much, Senator Boxer.
We are delighted to have Congresswoman Hilda Solis with us
today. She represents California's 32d Congressional District.
She is the Chair of the Congressional Hispanic Caucus Task
Force on Health and Environment, and also serves on the
prestigious Select Committee on Energy Independence and Global
Warming.
While serving as a California State Senator, she
spearheaded efforts to enact the Nation's very first
environmental justice legislation, and was the first female
recipient of the John F. Kennedy Profile in Courage Award for
her pioneering work on environmental justice issues in
California.
Both Senator Boxer and I are just delighted and privileged
to have you here, and we look forward to your statement,
Congresswoman.
STATEMENT OF HON. HILDA L. SOLIS, U.S. REPRESENTATIVE FROM THE
STATE OF CALIFORNIA
Ms. Solis. Thank you, Senator Clinton and Chairwoman
Senator Barbara Boxer. It really is a pleasure to be here. I
can't tell you how refreshing it is in the 7 years that I have
been able to serve in the House of Representatives to know that
our leadership now resembles the face of, at least in my
opinion, California and the diversity that you bring to this
subject matter. I think it is very important and very timely.
As was stated, I represent a very diverse, heavily impacted
District in Southern California, East Los Angeles and the San
Gabriel Valley home to, I must say, 3 Superfund sites, 17
vacated gravel pits, and one of the largest surrounding
landfills in the country, the Los Angeles County Sanitation
District's Puente Hills Landfill, where I grew up in the
neighboring community.
I can go on about all the stories, the negative impacts in
our community, but it goes far beyond that. I think why we are
here today is to talk about how there needs to be a correction
and enforcement of our laws that are already on the books. I
can tell you that as a former member of the California State
Senate back in 1994, when Executive Order by President Bill
Clinton, 12898, was implemented, that was our goal, to try and
see how we could get States to begin to implement that piece of
legislation.
We worked very hard. The first year of introduction, it was
vetoed by a Republican Governor at the time, but we worked
very, very hard to see that we could try to bring people
together in a bipartisan effort to see that it could finally be
realized. Eventually it was signed into law. I am happy that
California led the way with all the help of our different
stakeholders to help move that legislation forward. We set the
goal, I think, for the rest of the country because shortly
after about 29 other States followed suit.
So I am happy that that happened. But what continues to
bother me is the lack of enforcement here at the Federal level.
Yes, as you said, Senator Clinton and Senator Barbara Boxer, we
have really abandoned the pretext of what this initial
Executive order was established to do, to protect those
communities and to provide equity and balance in a fair
assessment of where projects are placed, whether they have
positive or negative impacts on communities.
One of the things that I recall saying over and over again
in committees was that we wanted to see a level playing field,
that not only Malibu or Beverly Hills would be treated
differently, but that they would not disadvantage communities
like mine in East Los Angeles and the San Gabriel Valley.
Yet today we find ourselves in the midst of some of the
worst air pollution, contaminants in our water, heavy, heavy
negative air emissions that we find along our freeways where
schools are built, where communities live and reside, and of
course the gravel pits in the San Gabriel Valley where Senator
Boxer I know is very familiar, where there is literally no form
of legislative support to help provide assistance to
communities that want to organize and know that the devastating
effects of asthma are a direct result of freeway traffic next
to their homes, the particulate matter that comes from the
gravel pits, and then the toxicity of other air pollutants that
surround the San Gabriel Valley that almost act as though it is
a net over our community.
Our people, our children can't escape that. The EPA, in my
opinion, hasn't done enough to provide the necessary tools and
enforcement to help make these goals that were intended some
years ago to be implemented.
I am here to plead with you as someone who has also
introduced an EJ bill, environmental justice bill, that we
hope, too, we can adopt and see both of our Houses work
together on this, to see that we come to some resolution and we
give hope to the different communities that are here
represented today, but also those that are unaware that this
legislation or this Executive order that existed some time ago,
is there on the books, but has not been enforced, and that we
are asking and appealing to the stakeholders, as well as to
Members of Congress and the Senate and our President to
continue with that pattern of making this a reality for us, to
see that in fact we make those corrections; that Superfund
sites receive the immediate support that they need to clean up
those toxic landfills, in some cases, because I have three in
my District right now that thousands of dollars go into
litigation and never come to provide any relief to the
surrounding communities.
We are starving our communities also because it is very,
very important that some of that land be remediated, so
Brownfields and others can be turned around so that we can put
housing, economic development, and hopefully open space for so
many of our young children that don't have that opportunity in
the San Gabriel Valley and East Los Angeles, where it is very
hard to find an opportunity for many of our young people to go
out and enjoy recreation, when you are in fact having to use
school yards that are paved with cement because there is no
open space. You have to beware of where you go out and play
because you may be next to a site that is toxic.
These are the stories that we hear always, year-round in
our District and around the country. I am hopeful that somehow
we can provide the support, leadership and energy that is
needed here in the Congress. I am ready to do that on my part
as a member of the Energy and Commerce Committee. We are not
only looking at cleaning up our Superfund sites, but we are
also looking at hopefully setting a standard to clean up our
water, because when the water turns off because we find out
that there are contaminants, who does that affect? It affects
our families, our children.
We need EPA to also step up to the plate to help us set a
standard. California has a good standard, probably one of the
best in the country, but the EPA for the last 11 years has done
nothing, has been silent on this issue. The research, the
science is there. What are we waiting for?
We need help on the Senate side also to see that those kind
of remedies are put forward. I would ask that something that I
would like to join with you, Senator Clinton, is asking the GAO
as they look in review of our Superfund site legislation and
cleanup, that we also consider language that would address EJ
issues in that matter. Because as you know, near any of these
major sites there are communities of color that are either
disadvantaged or low income. I rarely see that kind of
information placed in the record in any kind of report that is
issued by the Federal Government. I find that the EPA really
has done nothing to really implement the Executive order that
was put in place. I don't see any funding. I don't hear enough
about grants, the grant program that they are initially
undertaking. I would like to know more about that, and see how
we can improve the conditions for all of our communities and
for all Americans.
I am delighted that this is the first hearing that you are
having. I know it won't be the last, and I hope that we can do
joint hearings as well. If you desire to come out to Los
Angeles, I am sure we can arrange to do that.
With that, I think my time might be up. I am over. But I do
want to say that it is indeed a blessing to know that we have
such leadership here in the Senate that is going to challenge
this Administration and challenge those individuals that would
deny equal treatment under the law, under this Executive order.
Hopefully, we will see the light of day of our legislation
where we can have true enforcement, implementation,
transparency, accountability, and justice for our communities,
our communities of color that so, so badly need this.
So I would thank both of you for allowing me the
opportunity to be here, and to continue our work with you on
our side of the House as well. So thank you so much.
[The prepared statement of Representative Solis follows:]
Statement of Hon. Hilda L. Solis, U.S. Representative from the
State of California
Good afternoon. Thank you for allowing me to testify here today.
My name is Congresswoman Hilda Solis and I represent the 32nd
Congressional District of California, which includes parts of East Los
Angeles and the San Gabriel Valley. I am a Member of the Energy and
Commerce Committee where I am the Vice Chair of the Environment and
Hazardous Materials Subcommittee and a Member of the Health
Subcommittee. I am also the Chair of the Congressional Hispanic Caucus
Health and Environment Task Force. Earlier this year, Speaker Pelosi
appointed me to the House Select Committee on Energy Independence and
Global Warming because of my work on environmental justice.
california's environmental justice law/profile in courage
The issue of environmental justice is one I have worked on for
quite some time and am very passionate about. When I took my oath of
office, both at the State and Federal level, I vowed to work to protect
the health of these communities who have the odds stacked against them.
As a California State Senator I introduced legislation to require
the California Environmental Protection Agency (Cal/EPA) to design,
conduct, and enforce its policies and programs in a ``manner that
ensures the fair treatment of people including minority populations and
low income populations of the state.'' This legislation directed the
Cal/EPA to ensure that the public--all communities affected--
participate in the development and implementation of environmental
policies. It also required the Cal/EPA to improve its research and data
collection on programs relating to the health and environment of all
people.
After a lengthy battle and one veto, my legislation was eventually
signed into law and California became the first state in the nation to
have an enforceable environmental justice statute. Since then, more
than 30 other states have enacted legislation to protect communities.
In 2000, I became the first woman to be awarded the John F. Kennedy
Profile in Courage Award for my work on environmental justice. I am
very proud of this award and continue to work to improve the lives of
those who cannot fight for themselves.
environmental justice
Environmental justice is about making sure that the most vulnerable
populations have clean air, clean water, safe homes and good health. It
is about ensuring that hard working families are not missing days of
work and their children are not missing school because pollution from
the local power plants has caused them to have an asthma attack. It is
about making sure that all are treated fairly and have equal chance to
make their own opportunities.
For decades, minority and underserved communities have been forced
to live in close proximity to industrial zones, power plants, and toxic
waste sites. These are the communities nationwide whose health and
quality of life are negatively impacted the most by environmental
injustices. More than 5\1/2\ million Latinos live within 10 miles of a
coal powered plant and 68 percent of all African Americans live within
30 miles, the range where health impacts are the most severe. Over 70
percent of all African Americans and Latinos live in counties that
violate federal air pollution standards, compared to 58 percent of
whites. One in four Americans live within four miles of a Superfund
site--one of America's most toxic waste sites--including 10 million
children.
These communities are not victims of choice. They are victims of
circumstance, of environmental injustice, which occur when race and
space conflict and the neighborhood is not empowered to fight for its
health of environment.
As a result of environmental injustices, Latinos in the South Bronx
are nearly 2.5 times more likely to develop asthma than whites. African
Americans visit the emergency room with asthma attacks three times more
than whites and are more than twice as likely to die from asthma as
whites. Babies born in neighborhoods with high levels of smog and
pesticides are more likely to die before their first birthday than
those who are not. In communities with high levels of large air
particle pollution, the death rate from sudden infant death syndrome
jumps by as much as 26 percent. These include the communities of
McFarland, Bakersfield, Tulare County and Los Angeles in California.
East Los Angeles and the San Gabriel Valley, the communities I
represent, are disproportionately exposed to these risks. Sixty percent
of the district I represent in Congress is Latino and nearly 20 percent
are Asian American. Forty percent have less than a high school
education, most are blue collar skilled laborers. Many are immigrants.
The water basin in the area is contaminated with rocket fuel linked to
thyroid cancer. There are 17 gravel pits--many of them abandoned--which
have opened up the aquifers and those operating leave neighborhoods
covered with gravel dust. There are three superfund sites and nearby is
one of the largest landfills in the nation.
In my community, as in others across the country, these detrimental
environmental conditions are not equitably distributed. Both the state
of California and County of Los Angeles track averages of percent
minority population and poverty levels in a 3 mile radius surrounding a
facility. Forty-three enforcement actions were taken against 39
facilities in Los Angeles County between October 2005 and May 2007.
Ninety-two percent of people living within a three mile radius of these
facilities are minority and 51 percent live below the poverty level
[see attached charts]. These environmental conditions significantly
impact the quality of life and the health of my community.
environmental injustices continue
Unfortunately, environmental justice communities have made little
to no gains under the Bush administration.
Each fiscal year since 2004, the Bush Administration has requested
at least a 25 percent cut in the environmental justice budget at the
Environmental Protection Agency (EPA) [see attached document.] The
Administration refused to provide guidance for the National
Environmental Justice Advisory Council, and in early 2005, the EPA
released a draft Strategic Plan on environmental justice which would
have disregarded race as a consideration for determining environmental
justice, a significant departure from environmental justice policies
and in direct contradiction with the intent of Executive Order 12898. I
believe that had this draft plan been implemented, it would have done
nothing to reduce existing disparate impacts suffered by minority and
low-income communities and may have contributed to the future increase
of these impacts.
In 2006, the Administration proposed significant changes to the
Toxic Release Inventory Program, a critical community right to know
program which ensures first responders and community members are aware
of the use and release of toxic chemicals. For more than 20 years this
program successfully provided communities with critical information
about what is being dumped in their backyards, while also encouraging
companies to voluntarily reduce their emissions.
Finalized in December 2006, Bush Administration changes have
exempted nearly 3,000 facilities that release up to 2,000 pounds of
toxic chemicals from issuing detailed reports and also exempted
companies that manage up to 500 pounds of the most dangerous
substances, including mercury and lead. While communities of color make
up 32 percent of the U.S. population as a whole, they make up nearly 44
percent of the population within one mile of the polluting facilities
that could have fewer protections and less information of toxic
chemicals as a result of the Administration's proposal. Environmental
justice groups across this nation were well justified in decrying these
changes as direct attacks on the health of environmental justice
communities.
Locomotives and marine vessels are major public health problems for
port and rail communities, such as those that I represent. These
communities are predominantly minority and low-income. The California
Air Resources Board (CARB) estimates that each year there are 5,400
premature deaths, 2,400 hospitalizations, 140,000 cases of asthma, and
980,000 lost days of work as a result of poor air quality--much of
which is associated with this pollution.
Recently, the EPA proudly announced that it will ``ensure that the
Agency's environmental justice considerations are accurately described
to the public when proposed and final regulations are published after
January 2007.'' However, it has already failed to live up to this
promise. The proposed rule on locomotives to address situations such as
those my communities face was released in April of this year, but did
not mention environmental justice a single time in the 800-page
rulemaking!
gao and oig underscore failures on environmental justice
I continue to be extremely concerned about the manner in which the
EPA develops and implements policies and the impact these policies have
on environmental justice communities. Reports released by the Office of
the Inspector General (OIG) in 2004 and 2006, as well as the Government
Accountability Office (GAO) in 2005, underscore the continued failures
of the EPA to place a priority on the health and welfare of vulnerable
communities.
In 2004, the OIG found that the EPA had not consistently
implemented the Executive order on Environmental Justice. The OIG found
again in 2006 that the EPA did not know the impact its policies were
having on environmental justice communities. In 2005, in response to a
report I requested, the GAO found that the EPA failed to consider the
impact of its air regulations on minority and low-income communities.
In fact, the GAO stated ``EPA generally devoted little attention to
environmental justice.''
During budget hearings before the Energy and Commerce hearing in
March of this year, Acting Inspector General Roderick testified that
while the EPA agreed with the Inspector General recommendations on
environmental justice contained in the 2006 report, it had yet to
establish a plan of action and milestones for implementation. I am
still waiting for clear indications that the EPA is taking significant,
real action to achieve implementation of the recommendations presented
by both the OIG and the GAO. In lieu of this, the rhetoric from the
Administration on environmental justice is an empty promise, leaving
the health of vulnerable communities across our nation hanging in the
balance.
congressional action
I am committed to working to protect the health of communities
which this Administration, by its failure to act, has left behind.
Earlier this year, several of my colleagues, along with Senators
Durbin and Kerry, joined me in the introduction of H.R. 1103, the
Environmental Justice Act of 2007. This legislation codifies Executive
Order 12898 to ensure that minority and low-income communities have
meaningful involvement in the implementation and enforcement of
environmental laws and access to public information. It also requires
the EPA to fully implement recommendations identified by the OIG and
the GAO, and develops reporting requirements so that Congress can
better monitor the implementation and progress in achieving these
goals.
This legislation is endorsed by more than 20 organizations,
including the Southwest Network for Environmental and Economic Justice,
the Environmental Justice Resource Center, the Labor Council for Latin
American Advancement, the Center on Race, Poverty and the Environment,
the Lawyer's Committee for Civil Rights Under Law, the Center for
Health, Environment and Justice, the Mexican American Legal Defense and
Educational Fund and the National Hispanic Environmental Council.
I am also proud to join with Congressman Frank Pallone and Senator
Lautenberg to protect community right to know through restoration of
the Toxic Release Inventory Program. I hope that soon the Energy and
Commerce Committee can consider both bills and restore rights to and
protect the health of environmental justice communities.
Finally, I have introduced legislation to require the EPA to
establish a safe drinking water standard for perchlorate. Perchlorate
is a chemical used as the primary ingredient in solid rocket fuels,
missiles and fireworks. This constituent limits the ability of the
thyroid gland to take up iodine, which is necessary to help regulate
normal human health and development and which poses a serious risk to
vulnerable populations. The Centers for Disease Control and Prevention
recently found significant changes in the level of thyroid hormones in
humans exposed to perchlorate. I am looking forward to the further
consideration of this legislation in the U.S. House this fall.
We must also address the findings of the Supreme Court in Alexander
v. Sandoval. In this case the Supreme Court ruled in a 5-4 decision
that there is no private right of action allowed in a case of disparate
impact. Rather, persons would have to prove discriminatory intent and
the federal government is left seeking remedy on their behalf. I
understand this may be a particularly divisive issue for some, but I
believe it is one we must address none the less.
Finally, we must ensure that environmental justice communities are
protected in the drafting of any global warming legislation. I am proud
to serve on both the Energy and Commerce Committee and the Select
Committee on Energy Independence and Global Warming and look forward to
the opportunity to craft legislation that achieves this goal.
conclusion
Minority and low-income communities across this country are
vulnerable to health impacts resulting from environmental conditions
which have been largely ignored by this Administration. Absent a real
commitment to environmental justice, the health and welfare of these
communities will continue to suffer. I am pleased that the Committee
will hear today from advocates and administration officials. I look
forward to working with you all to protect the health and welfare of
minority and low-income communities across this country.
Senator Clinton. Thank you so much, Congresswoman Solis. I
am pleased to note that the committee will be marking up
several of the bills that you mentioned next week. I look
forward to continuing to work with you to address these issues,
and certainly under Senator Boxer's leadership, this committee
intends to make progress on these very, very important matters.
Thank you so much for taking your time to come today.
We are now going to call our first panel to assume the
positions at the table. We have a panel from the EPA and the
Government Accountability Office: Granta Nakayama, Assistant
Administrator of the Office of Enforcement and Compliance
Assistance of the Environmental Protection Agency; Wade Najjum,
Assistant Inspector General for Program Evaluation, Office of
the Inspector General, Environmental Protection Agency; and
John Stephenson, Director, Natural Resources and Environment
Section of the U.S. Government Accountability Office.
I thank the three of you for being here. We have copies of
your written statement, so you may wish to use the 5 minutes
that you have either to summarize them or to add to them, but
we welcome all of you. Let me start with Assistant
Administrator Nakayama.
STATEMENT OF GRANTA NAKAYAMA, ASSISTANT ADMINISTRATOR, OFFICE
OF ENFORCEMENT AND COMPLIANCE ASSURANCE, U.S. ENVIRONMENTAL
PROTECTION AGENCY
Mr. Nakayama. Good afternoon, Madam Chairman and
distinguished members of the subcommittee, and Chairman Boxer.
I am Granta Nakayama, the Assistant Administrator for the
Office of Enforcement and Compliance Assurance at EPA. On
behalf of Administrator Johnson, thank you for inviting EPA to
discuss its environmental justice programs.
EPA is a trailblazer in the implementation of environmental
justice programs. No other Federal Agency has attempted to
incorporate environmental justice into its programs, policies
and activities as comprehensively as EPA. EPA works to comply
with Executive Order 12898 and has taken significant and
meaningful steps to integrate environmental justice into its
mission.
EPA also provides technical assistance to other Federal
agencies on integrating environmental justice. EPA has
maintained a longstanding commitment to ensure environmental
protection for all people regardless of race, color, national
origin, or income.
Ensuring environmental justice means not only protecting
human health and the environment for everyone, but also
ensuring that all people are treated fairly and are given the
opportunity to participate meaningfully in the development,
implementation and enforcement of environmental laws,
regulations and policies.
In 2005, Administrator Johnson reaffirmed EPA's commitment
to environmental justice. He also identified national
environmental justice priorities such as reducing asthma and
elevated blood lead levels. For 2008, the Agency's national
program manager guidance and strategic plans are being examined
to identify activities, initiatives and strategies for
integrating environmental justice into planning and budgeting
documents.
EPA's Inspector General recently identified the need for EJ
program reviews. The Agency agreed and we will begin conducting
those reviews in March 2008. In addition, EPA's Office of
Environmental Justice was made an ex officio member of the
Agency's Regulatory Steering Committee. A significant
achievement is the mandated use of EJ template language for
regulatory actions tiered on or after January 1, 2007. The
template ensures that environmental justice will be considered
in future rulemakings.
EPA renewed the charter for the National Environmental
Justice Advisory Council, the NEJAC, so that EPA will continue
to receive valuable advice and recommendations from
stakeholders. In the wake of Hurricanes Katrina and Rita, the
NEJAC helped identify ways to ensure that EJ issues are
addressed in a timely manner, and as a result EPA modified its
incident command structure or system to ensure an EJ function
is included and incorporated into future responses.
EPA has learned that addressing EJ issues is everyone's
shared responsibility. Most EJ issues are local or site-
specific. Resolving these issues required the concerted efforts
of Federal, State, local and tribal governments, involvement by
community organizations, NGO's, business, industry and the
community residents themselves.
Since 1993, EPA has awarded more than $31 million in grants
to more than 1,100 community-based organizations. These EJ
grants promote community empowerment and capacity building.
Those are essential factors in maximizing meaningful
participation in the regulatory process. You will likely hear
more on this from Hon. Harold Mitchell in your next panel
regarding a major EJ grant success in Spartanburg, SC.
EPA has also learned that we must have a consistent
approach to identify potential areas with environmental justice
concerns. EPA is developing a prototype tool, the environmental
justice strategic enforcement assessment tool, or EJSEAT, to
enhance our ability to consistently identify potential EJ
areas.
EPA will continue to integrate EJ considerations into the
Agency's core programs, policies and activities, and engage
others in collaborative problem solving to address EJ concerns.
Again, thank you for allowing me to appear before you on
behalf of the EPA, and thank you for holding this hearing on
this very important topic, environmental justice. I will be
happy to take any questions.
[The prepared statement of Mr. Nakayama follows:]
Statement of Granta Nakayama, Assistant Administrator, Office of
Enforcement and Compliance Assurance, U.S. Environmental Protection
Agency
Good afternoon Madame Chairwoman and distinguished Members of the
Subcommittee. I am Granta Nakayama, Assistant Administrator for
Enforcement and Compliance Assurance (OECA) at the U.S. Environmental
Protection Agency (EPA). My office is responsible for enforcing the
Nation's environmental laws, as well as serving as the National Program
Manager for environmental justice. On behalf of Administrator Johnson,
thank you for inviting us to speak with you today on the significant
environmental justice accomplishments of the Agency, what we have
learned from those accomplishments, and how we plan to continue our
efforts to comprehensively address environmental justice issues.
implementing executive order 12898
EPA is a trailblazer in Federal government implementation of
environmental justice programs. No other Federal agency has attempted
to incorporate environmental justice into its programs, policies, and
activities as comprehensively as the EPA. EPA is the lead for
implementing Executive Order 12898, ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations.'' This Executive Order directs each Federal Agency to
``make achieving environmental justice part of its mission.'' EPA works
to comply with this Executive Order, and has taken significant and
meaningful steps to integrate environmental justice into its mission.
In its role as lead agency for the Executive Order, EPA provides
technical assistance to other Federal agencies on integrating
environmental justice. For example, EPA has been working with the
Centers for Disease Control and Prevention (CDC) in developing an
environmental justice policy. EPA also is working with the National
Center for Environmental Health/Agency for Toxic Substances and Disease
Registry (ATSDR) to develop a strategy for integrating environmental
justice goals within its programs and operations. Last week, EPA, CDC
and ATSDR announced a memorandum of understanding (MOU) to collaborate
on data gathering and sharing, and to find solutions for community
health problems that could be linked to environmental hazards.
Environmental justice was an important consideration in the development
of this MOU.
Under the leadership of Administrator Johnson, EPA maintains an
ongoing commitment to protect the environment for all people,
regardless of race, color, national origin, or income, so that all
people have the clean environment they deserve. We recognize that
minority and/or low-income communities may he exposed
disproportionately to environmental harms and risks. EPA works to
protect these and other communities from adverse human health and
environmental effects. Ensuring environmental justice means not only
protecting human health and the environment for everyone, but also
ensuring that all people are treated fairly and are given the
opportunity to participate meaningfully in the development,
implementation, and enforcement of environmental laws, regulations, and
policies.
integrating environmental justice into epa's mission
On November 4, 2005, Administrator Johnson reaffirmed EPA's
commitment to environmental justice. He directed the Agency's managers
and staff to integrate environmental justice considerations into EPA's
core planning and budgeting processes. As a result, EPA has made
transparent, measurable, and accountable environmental justice
commitments and targets in all five goals of EPA's Strategic Plan for
2006-2011. Administrator Johnson identified eight national
environmental justice priorities. Specifically, he directed the Agency
to work with our partners to:
Reduce asthma attacks;
Reduce exposure to air toxins;
Reduce incidences of elevated blood lead levels (ASTDR and
the Department of Housing and Urban Development);
Ensure that companies meet environmental laws;
Ensure that fish and shellfish are safe to eat (Federal
Drug Administration);
Ensure water is safe to drink;
Revitalize brownfields and contaminated sites; and
Foster collaborative problem-solving.
EPA's Program Offices and Regions each implement an Environmental
Justice Action Plan (Action Plan) to support EPA national priorities.
These Action Plans are prospective planning documents that identify
measurable commitments from each organization.
EPA's Chief Financial Officer directed the Agency's National
Program Managers (NPMs) to include language in their FY2008 National
Program Guidance that addresses the use of Action Plans and the
Agency's 2006-2011 Strategic Plan to identify activities, initiatives,
and/or strategies for the integration of environmental justice and
incorporate them into planning and budgeting documents and program
agreements. By instituting these types of programmatic requirements,
EPA is building a stronger foundation to successfully integrate
environmental justice into its Programs for the long-term.
In addition, EPA's Inspector General recently identified the need
for environmental justice program reviews. EPA agreed, and we have
embarked on an extensive effort to develop and conduct those reviews.
We are developing and piloting environmental justice review protocols
for the Agency's core function areas--rule-making/standard setting,
permitting, enforcement, and remediation/cleanup. Once these protocols
are complete, the Agency will begin conducting the reviews in March
2008.
Lastly, the Office of Environmental Justice was made an ex officio
member of the Agency's Regulatory Steering Committee. Its most
important contribution in this role so far has been to develop
environmental justice template language that assists rule writers in
developing their Federal Register publications. The template ensures
that the Agency's environmental justice considerations are accurately
described to the public when proposed and final regulations are
published after January 2007.
obtaining the best available environmental justice advice
EPA is taking actions to obtain the best available environmental
justice advice and to impart any lessons learned to those who can work
with us to address environmental justice issues at the federal, state
and local levels.
Importantly, in 2006, EPA renewed the charter for the National
Environmental Justice Advisory Council (NEJAC) thereby ensuring that
EPA will continue to receive valuable advice and recommendations on
national environmental justice policy issues from its stakeholders. The
NEJAC is comprised of prominent representatives of local communities,
academia, industry, and environmental, indigenous, as well as state,
local, and tribal governments that can identify and recommend solutions
to environmental justice problems. It is essential that EPA provide an
opportunity for such discussions and for ideas to be aired, and that
the NEJAC's advice and recommendations be appropriately integrated into
EPA's environmental justice priorities and initiatives.
During the response to Hurricanes Katrina and Rita, EPA worked
closely with NEJAC to ensure that environmental justice issues were
addressed in a timely manner. Among a number of new initiatives, EPA
has modified its Incident Command System to ensure an environmental
justice function is incorporated into future responses. As part of this
initiative, the Incident Commander is responsible for assuring that
adequate resources are devoted to environmental justice issues. In
addition, EPA Region 6's environmental justice team now participates in
the Regional Incident Command Team. EPA also provided $300,000 in grant
funding to encourage community-based organizations in EPA Regions 4 and
6 to participate in the decision-making (at all levels of government)
related to cleanup, recovery, and rebuilding the hurricane-impacted
areas in the Gulf Coast.
imparting lessons learned
During the past 13 years and through the course of our more recent
efforts, EPA has experienced first-hand the complexities of integrating
environmental justice into the programs, policies, and activities of an
agency as large and diverse as EPA.
Partnering for Maximum Effect
Most importantly, EPA has learned that addressing environmental
justice issues is everyone's shared responsibility. Most environmental
justice issues are local or site-specific--resolving these issues
requires the concerted efforts of many stakeholders--Federal, State,
local and tribal governments, community organizations, NGOs, academic
institutions, business/industry, and even the community residents
themselves. Since 1993, EPA has awarded more than $31 million in grants
to more than 1,100 community-based organizations and others to take on
an active role in our nation's environmental stewardship.
These environmental justice grants promote community empowerment
and capacity-building--essential ingredients to maximize meaningful
participation in the regulatory process. This year, EPA awarded $1
million in environmental justice grants to 10 community-based
organizations, and will award an additional $1 million later this month
to 20 community-based organizations to raise awareness and build their
capacity to solve local environmental and public health issues.
The Power of Collaborative Problem Solving
EPA is proud of the progress that our many Programs have made in
environmental justice since President Clinton signed Executive Order
12898 in 1994. I would be remiss not to highlight a particular example
that demonstrates not only EPA's success, but the success of other
Federal, State, and local partners, and community groups.
EPA's relationship with ReGenesis, a community-based organization
in Spartanburg, South Carolina, began in 1999 with a $20,000 grant
award to address local environmental, health, economic and social
issues. In 2003, EPA developed a Collaborative Problem-Solving (CPS)
Model as a framework for others to follow. The model has worked well
with amazing results. The ReGenesis Environmental Justice Partnership
used elements of the CPS Model to leverage the initial grant from EPA
to generate more than $166 million in funding, including over $1
million from EPA Region 4. ReGenesis marshaled the collaboration of
more than 200 partner agencies, and local residents, industry, and a
university to revitalize two Superfund sites and six Brownfields sites
into new housing developments, an emergency access road, recreation
areas, green space, and job training that are vital to the community's
economic growth and well-being. This result was beyond anyone's
expectation.
ReGenesis proved to be such an excellent example of what can be
accomplished with EPA's funding, training and partnerships that we
created a documentary film about it as a training tool to put thousands
of other communities on the path of collaborative-problem solving. The
DVD is being distributed across the country.
With the ongoing efforts in collaborative problem-solving and the
grant programs, EPA is creating new opportunities to effectively target
and address local environmental justice issues. By working together,
everyone can benefit from the results.
Sharing Information
Since 2002, EPA has provided environmental justice training
nationwide through the Fundamentals of Environmental Justice workshop,
to almost 4,000 people, including staff in EPA and other government
agencies. It is a long-term investment to ensure our workforce knows
how to integrate environmental justice into their daily
responsibilities. Some EPA offices have customized the training for
their own organizations. For example, Region 1 has trained 98 percent
of its workforce on environmental justice and has made it a training
requirement for all new employees,
Drawing on the success of its classroom-based training, the Office
of Environmental Justice introduced three Web-based courses during FY
2006: (1) Introduction to Environmental Justice, (2) Introduction to
the Toolkit for Assessing Potential Allegations of Environmental
Injustice, and (3) Incorporating Environmental Justice Considerations
into RCRA Permitting. By using the latest on-line technology, EPA's
training has become more cost effective and reaches a greater audience.
In addition to the importance of training, we also have learned
that we must have a consistent approach to identify potential areas for
environmental justice concern. My Office is developing a prototype
tool, the Environmental Justice Strategic Enforcement Assessment Tool
(EJSEAT), to enhance OECA's ability to consistently identify potential
environmental justice areas, and assist us in making fair and efficient
enforcement and compliance resource deployment decisions. Although we
may have a tool and a process for ensuring consistency, variations in
data availability may affect the tool's usefulness.
future epa environmental justice efforts
The EPA successes I have highlighted today demonstrate that we are
making significant headway on the road to environmental justice. To
fully integrate and implement these concerns, the EPA and its Federal,
state, tribal, local and community partners continue to work together
to build a better model for the future. We are on that path today, and
will continue to address all issues that come our way.
In moving forward, we will complete the environmental justice
program reviews so that we can appropriately evaluate the effectiveness
of EPA's actions for environmental justice. A number of successes thus
far have been the result of innovative outreach rather than traditional
EPA regulatory activity. That has to be factored into our plans for the
figure. We will focus on leveraging resources so that we can broaden
our reach and replicate successes in encouraging collaborative problem-
solving.
We will also finalize the Environmental Justice Strategic
Enforcement Assessment Tool (EJSEAT) to enhance EPA's ability to
consistently identify potential environmental justice areas of concern
and assist EPA in making fair and efficient enforcement and compliance
resource deployment decisions. We will evaluate the potential for
applying the tool in other EPA programs and activities.
Based on the lessons we have learned and our efforts over the past
13 years, we are on a path forward with EPA's environmental justice
programs. EPA will continue to integrate environmental justice
considerations into the Agency's core programs, policies and activities
and to engage others in collaborative problem-solving to address
environmental justice concerns at every turn. Whenever and wherever we
address environmental justice issues, we strive to build staying power
in those communities and share any lessons learned with others.
______
Responses by Granta Nakayama to Additional Questions from
Senator Clinton
Question 1. As part of your testimony, you note that Region 1 has
trained 98 percent of its employees about environmental justice, and
has implemented requirements to ensure that all new employees receive
this training. What is your agency doing to ensure that the training
success of Region One is implemented throughout the agency, less than a
quarter of whom have received environmental justice training in the
past 5 years?
Response. As noted in Mr. Nakayama's testimony, the U.S.
Environmental Protection Agency (EPA) is committed to providing
environmental justice (EJ) training as a long-term investment, as an
integral part of the Agency's efforts to integrate environmental
justice considerations into its core program responsibilities. Over the
past 5 years, EPA has trained approximately 4,000 employees. Priority
for training is given to staff and managers with direct involvement in
programmatic activities that may address environmental justice issues,
such as permitting and enforcement. In some offices, such as the Office
of Enforcement and Compliance Assurance (OECA) and Region 1, EPA has
trained almost all of its employees. Other programs and regional
offices have made commitments to training in their 2007-2008 action
plans. Regions 2, 6, and 8 have made commitments to train all of their
employees in 2008.
EPA continues to train its staff through three Web-based courses:
(1) Introduction to Environmental Justice, (2) Introduction to the
Toolkit for Assessing Potential Allegations of Environmental Injustice,
and (3) Incorporating Environmental Justice Considerations into RCRA
Permitting. By using the latest on-line technology, EPA's training has
become more cost effective and reaches a greater audience. We are also
in the process of tracking all classroom-based and e-training that has
taken place throughout the Agency.
In addition, EPA created a documentary film about the successful
ReGenesis environmental justice partnership in Spartanburg, South
Carolina, as a training tool to put thousands of other communities on
the path of collaborative problem-solving.
Question 2. In your testimony, you mentioned that EJ template
language must be put into place for regulatory actions tiered on or
after January 1, 2007. Could you please provide me with a copy of that
template language.
Response. Enclosed please find a copy of the environmental justice
template language.
Question 3. Your testimony also mentioned the Environmental Justice
Strategic Enforcement Assessment Tool--known as EJSEAT. When was EJSEAT
supposed to have been completed by the EPA? What is the target date for
EJSEAT's completion? How are you revising your Action Plans to reflect
this delay?
Response. OECA has made the development and implementation of
EJSEAT a high priority since 2005. Our goal is to initiate pilots of
EJSEAT in FY2008. We will take the results of these pilots into
consideration in the OECA's EJ Action Plan for FY2009.
Responses by Granta Nakayama to Additional Questions from
Senator Inhofe
Question 1. As a matter of law, do you think that we may be giving
EO 12898, a nonbinding, legally unenforceable executive order, more
official standing than is legally permissible?
Response. Executive Order 12898 (59 FR 7629, Feb. 11, 1994)
established federal executive policy on environmental justice. The
Federal agencies subject to the Order, including the U.S. Environmental
Protection Agency (EPA), were directed, to the greatest extent
practicable and permitted by law, to make environmental justice part of
their missions. EPA accomplishes this goal by utilizing existing
statutory authorities and when implementing their regulations.
Question 2. Assuming that EPA's primary responsibility is to assess
environmental risk in populations, do you think EPA is the appropriate
federal agency to perform the kind of complicated socio-economic,
demographic and public health impact determinations, normally performed
by other agencies such as the Centers for Disease Control and the
Department of Housing and Urban Development?
Response. Environmental justice is a complex issue involving
environmental, health, economic and social issues. EPA has the
expertise and statutory authority to address only some of the possible
contributing factors. Experience has taught EPA that addressing
environmental justice issues takes a collaborative effort by multiple
stakeholder groups such as Federal, State, local and tribal
governments, community organizations, NGOs, academic institutions,
business/industry, and even the community residents themselves. EPA
recognizes the roles of the other agencies mentioned, and is working
with them and others at the Federal, state and local levels to obtain
the socio-economic, demographic and public health information needed to
address environmental justice concerns.
Question 3. Assuming that all disproportionate impacts are not
automatically negative impacts; what weight do you believe is given to
the economic benefits, increased employment, social services and lower
housing costs associated with industrial development in low income
areas?
Response. Disproportionate impacts involve many issues, including
negative and positive impacts. The cited factors may very well have a
mitigating effect on adverse impacts. An analysis of such impacts is
complex. See answer to Question 2 above for how EPA coordinates with
other agencies on such matters.
Question 4. EPA's various guidance on EJ over the last 13 years is
considered an interpretive rule, stating what the agency ``thinks'' and
serves only to remind affected parties of existing duties. The courts
have decided that interpretive rules are not subject to the
Administrative Procedures Act (``APA'') and are outside the scope of
judicial review. This leaves ultimate discretion to the EPA on what are
`high and adverse impacts.' The APA, set forth by Congress 60 years
ago, created a consistent and transparent process for agency rule
makings. Do you believe that an interpretive rule, like the EJSEAT, is
meant to affect substantive change in the regulations or serve as a
basis for denying permits?
Response. The Environmental Justice Smart Enforcement Assessment
Tool (``EJSEAT'') is intended only as a screening tool. It is neither
an interpretive rule nor a guidance document. EJSEAT is not intended
to, and does not, substantively change regulations or provide a basis
for denying a permit.
Senator Clinton. Thank you very much.
Mr. Najjum.
STATEMENT OF WADE NAJJUM, ASSISTANT INSPECTOR GENERAL FOR
PROGRAM EVALUATION, OFFICE OF INSPECTOR GENERAL, U.S.
ENVIRONMENTAL PROTECTION AGENCY
Mr. Najjum. Good afternoon, Madam Chairwoman, members of
the subcommittee. I am Wade Najjum.
Senator Clinton. Mr. Najjum, could you pull the microphone
a little closer to you please, so everyone can hear you. There
you go.
Mr. Najjum. How is that?
Senator Clinton. Yes, thank you.
Mr. Najjum. I am pleased to be here today to discuss the
OIG's work on how EPA has incorporated environmental justice
within its programs and activities.
Over the past 5 years, the OIG has been examining EPA's
environmental justice activities as part of our strategic plan
to review how EPA fulfills its responsibilities. We have issued
two reports specifically dealing with EPA implementation of
environmental justice reviews.
In 2006, we completed our most recent evaluation of whether
EPA program and regional offices had performed environmental
justice reviews of their programs, policies and activities. We
sought to determine if there had been clear direction from EPA
senior management to perform environmental justice reviews; if
EPA had performed these reviews; and if EPA had adequate
guidance to conduct these reviews or if there was a need for
additional directions or protocols.
We concluded that EPA program and regional offices have not
routinely performed environmental justice reviews. Therefore,
EPA cannot determine whether its programs have a
disproportionately high and adverse human health or
environmental effect on minority and low-income populations.
We were given multiple reasons why these reviews were not
performed, including: the absence of a specific directive from
EPA management to conduct such reviews; a belief by some
program offices that they are not subject to the Order since
their programs do not lend themselves to reviewing impacts on
minority and low-income populations; and uncertainty about how
to perform the reviews.
We made four recommendations to EPA to address these
issues: to require the program and regional offices to
determine where environmental justice reviews are needed and
establish a plan to complete them; second, to ensure these
reviews include a determination if there is a disproportionate
impact on minority and low-income populations; third, to
develop specific review guidance; and fourth, to designate a
responsible office to compile the results of these reviews and
make recommendations to EPA senior leadership.
EPA agreed with our recommendations and established
milestones for completing those actions. In our 2004 review, we
reported on how EPA was integrating environmental justice into
its operations. Specifically, we sought there to determine how
EPA had implemented the Order and integrated its concepts into
regional and program offices, and how were environmental
justice areas defined at the regional levels, and what was the
impact.
We concluded that EPA had not fully implemented the Order
and was not consistently integrating environmental justice into
its day to day operations at that time. EPA had not identified
minority and low-income communities or defined the term
``disproportionately impacted.''
In the absence of environmental justice definitions,
criteria or standards from EPA, many regional and program
offices individually took steps to implement environmental
justice policies. The result was inconsistency in environmental
justice actions across EPA's regions and programs. Thus, how
environmental justice action was implemented was dependent, in
part, on where you lived.
We made 12 recommendations to EPA to address the issues we
raised. EPA disagreed with 11 of our recommendations. EPA did
agree to perform a study of program and regional offices
funding and staffing for environmental justice to ensure that
adequate resources were available to fully implement its
environmental justice plans. EPA completed that study in May
2004.
In the interests of objectivity, I should also say that
since the issuance of our reports, EPA has taken some positive
steps to address environmental justice issues. However, we
think EPA recognizes that more work needs to be done,
particularly in its efforts to integrate environmental justice
into its decisionmaking, planning, and budgeting processes.
Also, EPA still needs broader guidance on environmental
justice program and policy reviews, which EPA acknowledges is
not in place.
Thank you for the opportunity to testify before you today.
I would be pleased to answer any questions you may have.
[The prepared statement of Mr. Najjum follows:]
Statement of Wade Najjum, Assistant Inspector General for Program
Evaluation, Office of Inspector General, U.S. Environmental Protection
Agency
Good afternoon Madame Chairman and Members of the Subcommittee. I
am Wade Najjum, Assistant Inspector General for Program Evaluation with
the U.S. Environmental Protection Agency (EPA) Office of Inspector
General (OIG). I am pleased to be here today to discuss the OIG's work
on how EPA has incorporated environmental justice within its programs
and activities. EPA has made some progress in these areas over the past
5 years. However our reports show that more could be done.
environmental justice at epa
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, regulations, and
policies. Fair treatment means that no group of people should bear a
disproportionate share of the negative environmental consequences
resulting from industrial, governmental, and commercial operations or
policies. Meaningful involvement means that: (1) people have an
opportunity to participate in decisions about activities that may
affect their environment and/or health; (2) the public's contribution
can influence the regulatory agency's decision; (3) their concerns will
be considered in the decision making process; and (4) the decision
makers seek out and facilitate the involvement of those potentially
affected.
In February 1994, the president signed Executive Order 12898\1\
(Order) focusing Federal attention on the environmental and human
health conditions of minority and low-income populations with the goal
of achieving environmental protection for all communities. This Order
directed Federal agencies to develop environmental justice strategies
to help them address disproportionately high and adverse human health
or environmental effects of their programs on minority and low-income
populations. The Order is also intended to promote nondiscrimination in
Federal programs that affect human health and the environment. It aims
to provide minority and low-income communities' access to public
information and public participation in matters relating to human
health and the environment. The Order established an Interagency
Working Group on environmental justice chaired by the EPA Administrator
and comprised of the heads of 11 departments or agencies and several
White House offices.
---------------------------------------------------------------------------
\1\ Executive Order 12898 ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-income
Populations,'' February 11, 1994.
---------------------------------------------------------------------------
At EPA, the Office of Environmental Justice (OEJ) within the Office
of Enforcement and Compliance Assurance (OECA) coordinates EPA's
efforts to integrate environmental justice into all policies, programs,
and activities. Within each regional office there is at least one
environmental justice coordinator who serves as the focal point within
their organizations and as the liaison to OEJ. Among the coordinator's
duties are to provide policy advice and to develop and implement
programs within their regions. There is no specific environmental
justice statute to fund environmental justice activities at EPA.
Consequently, OEJ performs activities using a general Environmental
Program Management appropriation budget line item.
oig environmental justice work
For the past 5 years, the OIG has been examining EPA's
environmental justice activities as part of our broader strategic plan
to review how EPA fulfills its responsibilities to address
environmental threats and their impact on ecosystems, communities, and
susceptible populations. We have issued two reports focusing on EPA's
implementation of Executive Order 12898 requirements.
Evaluation of EPA's Implementation of Executive Order
In a 2004 review\2\, we reported on how EPA was integrating
environmental justice into its operations. Specifically, we sought to
answer the following questions: (1) how had EPA implemented the Order
and integrated its concepts into its regional and program offices; and
(2) how were environmental justice areas defined at the regional levels
and what was the impact.
---------------------------------------------------------------------------
\2\ ``EPA Needs to Consistently Implement the Intent of the
Executive Order on Environmental Justice,'' Report No. 2004-P-00007,
March 1, 2004.
---------------------------------------------------------------------------
We concluded that EPA had not fully implemented the Order and was
not consistently integrating environmental justice into its day-to-day
operations at that time. EPA had not identified minority and low-income
communities, or defined the term ``disproportionately impacted.''
Moreover, in 2001, EPA restated its commitment to environmental justice
in a manner that did not emphasize minority and low-income populations
which we believed was the intent of the Order. In the absence of
environmental justice definitions, criteria, or standards from EPA,
many regional and program offices individually took steps to implement
environmental justice policies. The result was inconsistency in
determining environmental justice communities across EPA regions and
programs. For example, between the regions there was a wide array of
approaches for identifying environmental justice communities. Thus, the
implementation of environmental justice actions was dependent, in part,
on where you lived.
We made 12 recommendations to EPA to address the issues we raised,
which are listed in Attachment A. Four key recommendations were: (1)
reaffirm the Executive Order as a priority; (2) establish specific
timeframes for developing definitions, goals, and measurements; (3)
develop a comprehensive strategic plan; and (4) determine if adequate
resources are being applied to implement environmental justice. EPA
disagreed with 11 of the 12 recommendations. EPA did agree to perform a
comprehensive study of program and regional offices' funding and
staffing for environmental justice to ensure that adequate resources
are available to fully implement its environmental justice plans. In
May 2004, EPA issued its report entitled ``Environmental Justice
Program Comprehensive Management Study'' conducted by Tetra Tech EM
Inc.
Evaluation of EPA Environmental Justice Reviews
In 2006, we completed our evaluation\3\ of whether EPA program and
regional offices have performed environmental justice reviews of their
programs, policies, and activities as required by the Order. We
specifically sought to determine if: (1) there had been clear direction
from EPA senior management to perform environmental justice reviews of
EPA programs, policies, and activities; (2) EPA had performed
environmental justice reviews; and (3) EPA had adequate guidance to
conduct these reviews or if there was a need for additional directions
or protocols.
---------------------------------------------------------------------------
\3\ ``EPA Needs to Conduct Environmental Justice Reviews of Its
Programs, Policies, and Activities,'' Report No. 2006-P-00034,
September 18, 2006.
---------------------------------------------------------------------------
To determine the direction, frequency, and guidance for
environmental justice reviews, we met with OECA, OEJ, and Office of Air
and Radiation representatives. We then conducted an EPA-wide survey of
each of the Deputy Assistant Administrators in EPA's 13 program offices
and each of the 10 Deputy Regional Administrators on their experience
conducting environmental justice reviews of their programs, policies,
and activities. We also asked them to describe their satisfaction with
available guidance and instructions for conducting these reviews, and
whether they needed additional directions or protocols. We did not
design our survey to draw inferences or project results. Rather we
sought to obtain descriptive information on implementing environmental
justice at EPA.
Our survey results showed that EPA program and regional offices
have not routinely performed environmental justice reviews. Reasons for
not performing these reviews included the absence of a specific
directive from EPA management to conduct such reviews; a belief by some
program offices that they are not subject to the Order since their
programs do not lend themselves to reviewing impacts on minority and
low-income populations; and confusion regarding how to perform the
reviews. In addition, we found that program and regional offices lacked
clear guidance to follow when conducting environmental justice reviews.
Survey respondents stated that protocols, a framework, or additional
directions would be useful for conducting environmental justice
reviews. We concluded that EPA cannot determine whether its programs
have a disproportionately high and adverse human health or
environmental effect on minority and low-income populations without
performing these types of reviews.
We made four recommendations to EPA to address these issues. We
recommended that EPA: (1) require program and regional offices to
determine where environmental justice reviews are needed and establish
a plan to complete them; (2) ensure that environmental justice reviews
determine whether EPA programs, policies, and activities may have a
disproportionately high and adverse health or environmental impact on
minority and low-income populations; (3) develop specific environmental
justice review guidance that includes protocols, a framework, or
directions; and (4) designate a responsible office to compile the
results of environmental justice reviews and make recommendations to
EPA senior leadership. EPA agreed with our recommendations and
established milestones for completing those actions. For example, in
response to our third recommendation EPA convened an Agency-wide
Environmental Justice workgroup in April 2007 to begin developing
protocols to provide guidance for conducting reviews. Implementation of
the protocols developed is scheduled for March 2008.
Noteworthy EPA Achievements
In the interest of objectivity I also should say that since the
issuance of our reports, EPA has taken some steps to address
environmental justice issues. In 2005, Administrator Stephen Johnson
reaffirmed EPA's commitment to environmental justice by directing staff
to establish measurable commitments that address environmental
priorities such as: reducing asthma attacks, air toxics, and blood lead
levels; ensuring that companies meet environmental laws; ensuring that
fish and shellfish are safe to eat; and ensuring that water is safe to
drink. EPA is also including language in the fiscal year 2008 National
Program Guidance that each headquarters program office should use its
environmental justice action plan and EPA's strategic plan to identify
activities, initiatives, or strategies that address the integration of
environmental justice. Finally, EPA is modifying its emergency
management procedures in the wake of Hurricane Katrina to incorporate
an environmental justice function and staffing support in the EPA's
Incident Command Structure so that environmental justice issues are
addressed in a timely manner.
These are all positive steps but EPA recognizes that more work
needs to be done, particularly in its efforts to making environmental
justice part of its mission by integrating environmental justice into
its decision making, planning, and budgeting processes. EPA needs to be
able to determine if their programs, policies, and actions have a
disproportionate health or environmental impact on minority or low-
income populations. EPA also still needs broad guidance on
environmental justice program and policy reviews, which EPA
acknowledges is not in place.
conclusion
One of EPA's goals is to provide an environment where all people
enjoy the same degree of protection from environmental and health
hazards and equal access to the decision-making process to maintain a
healthy environment in which to live and work. Our work has shown that
EPA still needs to do more to integrate environmental justice into its
programs and activities so that it may achieve this goal.
Thank you for the opportunity to testify before you today. I would
be pleased to answer any questions you may have.
__________
Attachment A
Recommendations from 2004 OIG Report ``EPA Needs to Consistently
Implement the Intent of the Executive Order on Environmental Justice''
(1) Issue a memorandum that reaffirms that Executive Order 12898 is
the Agency's priority and that minority and low-income populations that
are disproportionately impacted will receive the intended actions of
this Executive Order.
(2) Clearly define the mission of the Office of Environmental
Justice and provide Agency staff with an understanding of the roles and
responsibilities of the office.
(3) Establish specific time frames for the development of
definitions, goals and measurements that will ensure that the 1994
Executive Order is complied with in the most expeditious manner.
(4) Develop and articulate a clear vision on the Agency's approach
to environmental justice. The vision should focus on environmental
justice integration and provide objectives that are clear, precise, and
focused on environmental results.
(5) Develop a comprehensive strategic plan for environmental
justice. The plan should include a comprehensive mission statement that
discusses, among other things, the Agency's major functions and
operations, a set of outcome-related goals and objectives, and a
description of how the Agency intends to achieve and monitor the goals
and objectives.
(6) Provide the regions and program offices a standard and
consistent definition for a minority and low-income community, with
instructions on how the Agency will implement and operationalize
environmental justice into the Agency's daily activities. This could be
done through issuing guidance or a policy statement from the
Administrator.
(7) Ensure that the comprehensive training program currently under
development includes standard and consistent definitions of the key
environmental justice concepts (i.e., low-income, minority,
disproportionately impacted) and instructions for implementation.
(8) Perform a comprehensive study of program and regional offices'
funding and staffing for environmental justice to ensure that adequate
resources are available to fully implement the Agency's environmental
justice plan.
(9) Develop a systematic approach to gathering accurate and
complete information relating to environmental justice that is usable
for assessing whether progress is being made by the program and
regional offices.
(10) Develop a standard strategy that limits variations relating to
Geographical Information System (GIS) applications, including use of
census information, determination of minority status, income threshold,
and all other criteria necessary to provide regions with information
for environmental justice decisions.
(11) Require that the selected strategy for determining an
environmental justice community is consistent for all EPA program and
regional offices.
(12) Develop a clear and comprehensive policy on actions that will
benefit and protect identified minority and low-income communities and
strive to include in States' Performance Partnership Agreements and
Performance Partnership Grants.
______
Responses by Wade Najjum, to Additional Questions from Senator Inhofe
Question 1. As a matter of law, do you think that we may be giving
EO 12898, a nonbinding, legally unenforceable executive order, more
official standing than is legally permissible?
Response. I am not an attorney therefore I cannot answer this
question.
However, as a Federal employee I am required to follow the
president's executive orders to the best of my ability and authority.
Question 2. Assuming that EPA's primary responsibility is to assess
environmental risk in populations, do you think EPA is the appropriate
federal agency to perform the kind of complicated socio-economic,
demographic and public health impact determinations, normally performed
by other agencies such as the Centers for Disease Control and The
Department of Housing and Urban Development?
Response. EPA's mission is to protect human health and the
environment. The EPA Office of Inspector General (OIG) has done no work
to assess the capabilities of the Centers for Disease Control or the
Department of Housing and Urban Development relative to EPA's
capabilities.
Question 3. Assuming that all disproportionate impacts are not
automatically negative impacts, what weight do you believe is given to
the economic benefits, increased employment, social services and lower
housing costs associated with industrial development in low income
areas?
Response. The OIG has not performed any evaluation of factors
outside the scope of Executive Order 12898, which only addresses
disproportionately high and adverse human health or environmental
effects in Federal agency programs, policies, and activities on
minority and low-income populations.
Question 4. EPA's various guidance on environmental justice over
the last 13 years is considered an interpretive rule, stating what the
agency ``thinks'' and serves only to remind affected parties of
existing duties. The courts have decided that interpretive rules are
not subject to the Administrative Procedures Act (``APA'') and are
outside the scope of judicial review. This leaves ultimate discretion
to the EPA on what are ``high and adverse impacts.'' The APA, set forth
by Congress 60 years ago, created a consistent and transparent process
for agency rule makings. Do you believe that an interpretive rule, like
the EJSEAT, is meant to affect substantive change in regulations or
serve as the basis for denying permits?
Response. The OIG's environmental justice evaluations did not
consider this issue. This question would be better addressed by EPA or
the Department of Justice.
Senator Clinton. Thank you very much.
Mr. Stephenson.
STATEMENT OF JOHN B. STEPHENSON, DIRECTOR, NATURAL RESOURCES
AND ENVIRONMENT, U.S. GOVERNMENT ACCOUNTABILITY OFFICE
Mr. Stephenson. Thank you, Madam Chairman, Senator Boxer. I
am pleased to be here today to discuss GAO's report examining
the extent to which EPA incorporates environmental justice into
its rulemaking process.
As you know, studies continue to show that low-income and
minority populations are disproportionately exposed to air
pollution and other environmental risk. The 1994 Executive
order, of course, stated that EPA and other Federal agencies
shall make achieving environmental justice an integral part of
their policies, programs and activities.
In July 2005, we issued a report that identified a number
of weaknesses in EPA's approach for incorporating EJ
considerations into its rulemaking process. From a list of 19
significant clean air rules promulgated from 2002 through 2004,
we focused on three specific rules for detailed study that has
a minimum mention of environmental justice in the Federal
Register, reasoning that these rules would show EPA's efforts
in the best light. So our findings were based on best case
examples, not worst case examples.
My testimony today summarizes the key findings, and that
report outlines EPA's response to our recommendations and
provides current information on subsequent EPA actions since
that time.
In summary, we found that EPA generally devoted little
attention to environmental justice when drafting clean air
rules. Our report concluded, for example, that while EPA
guidance on rulemaking states that work groups should consider
environmental justice early in the process, a lack of guidance
and training for work group members on how to identify and
address environmental justice impacts limited their ability to
analyze such issues.
Also, while EPA considered environmental injustice to
varying degrees in the final stages of the rulemaking process,
in general the Agency rarely provided a clear rationale for its
decisions. For example, in the case of the gasoline rule, EPA
analysis showed that emissions of nitrous oxides and volatile
organic compounds would actually go up in 26 of 80 counties
with refineries affected by the rule, as much as 298 tons in
the first year after implementation in one Louisiana parish.
EPA concluded that the rule would not have any
disproportionate impacts on low-income or minority communities,
but did not publish any data or provide any analysis in support
of that conclusion.
We made several recommendations that EPA has responded to
in varying degrees since we issued our report. For example, our
report recommended that EPA ensure that its rulemaking work
groups devote attention to environmental justice while drafting
and finalizing clean air rules. EPA stated in its August 2006
letter, responding to the report that it has made the Office of
Environmental Justice an ex officio member of the Regulatory
Steering Committee so that it would be aware of emerging
regulations and be able to participate in work groups as
necessary.
In response to our recommendation that EPA improve the way
environmental justice impacts are addressed in its economic
reviews, EPA stated that it was examining ways to enhance its
air models to better account for low-income and minority
populations.
In response to our recommendation that EPA respond more
fully to public comments on environmental justice, EPA stated
that it would reemphasize the need to address such comments and
better explain the rationale and supporting data for the
Agency's decisions.
Our recent discussions with EPA officials suggests that
some progress has been made to address the recommendations, but
that significant challenges remain. For example, while the
Office of Environmental Justice is not an ex officio member of
the Regulatory Steering Committee, there is no mechanism to
assure that their participation in individual rulemaking work
groups or option selection meetings, for example, where
environmental issues would actually be considered. In fact, in
over 100 air rules that had been proposed or finalized in the
past year, the Office has participated in only one work group.
In addition, while EPA has made good progress in providing
EPA staff with environmental justice awareness training, it has
not yet completed more specific training courses nor issued
guidance to help rulemakers understand how to address EJ
issues.
In conclusion, Madam Chairman, our 2004 report concluded
that EPA's actions to address environmental justice fell well
short of the goals set forth in the Executive order. In EPA's
letter to GAO and the Congress 1 year after our report, EPA
committed to a number of actions in response to our
recommendations, but as of today many of these commitments
remain largely unfulfilled.
While EPA continues to take steps in the right direction,
its progress to date suggests the need for measurable
benchmarks for making more meaningful progress in holding the
Agency accountable.
Madam Chairman, that concludes my statement. I will be
happy to take questions.
[The prepared statement of Mr. Stephenson follows:]
Statement of John B. Stephenson, Director, Natural Resources and
Environment, U.S. Government Accountability Office
Madam Chairman and Members of the Subcommittee:
I am pleased to be here today to discuss the Environmental
Protection Agency's (EPA) consideration of environmental justice,
particularly as it has been used to develop clean air rules. According
to EPA studies, low-income and minority populations are
disproportionately exposed to air pollution and other environmental
risks. In 1994 President Clinton issued Executive Order 12898, which
stated that EPA and other federal agencies, to the greatest extent
practicable and permitted by law, shall make achieving environmental
justice part of their missions by identifying and addressing as
appropriate, the disproportionately high and adverse human health of
environmental effects of their programs, policies, and activities on
minority populations and low-income populations in the United
States.\1\
---------------------------------------------------------------------------
\1\ Efforts to identify and address disproportionately high and
adverse impacts on specific populations and communities are commonly
referred to under the term ``environmental justice.''
---------------------------------------------------------------------------
To implement the order, EPA developed guidance for incorporating
environmental justice into its programs, such as the enforcement of the
Clean Air Act, which is intended in part, to control emissions that
harm human health. A key to ensuring that environmental justice is
sufficiently accounted for in agency decisions and operations is that
it be considered at each point in the rulemaking process--including the
point when agency workgroups typically consider regulatory options;
perform economic analyses of proposed rules' costs; make proposed rules
available for public comment; and finalize them in advance of their
implementation.
My testimony today is based largely on our 2005 report,\2\ which
recommended that EPA devote more attention to environmental justice
when developing clean air rules. In addition, we met with cognizant EPA
staff to understand what actions the agency has taken since the
report's issuance to improve its treatment of environmental justice
issues during its air rulemaking process.
---------------------------------------------------------------------------
\2\ GAO, Environmental Justice: EPA Should Devote More Attention to
Environmental Justice When Developing Clean Air Rules, GAO-05-289
(Washington, DC: July 22, 2005).
---------------------------------------------------------------------------
Our report examined how EPA considered environmental justice during
the drafting of these air rules (including activities of the workgroups
that typically consider regulatory options, the economic review of the
rules' costs, and the manner in which proposed rules are made available
for public comment) and their finalization (including how public
comments are addressed and how the economic review is revised). The
three rules we examined included a 2000 gasoline rule to reduce sulfur
in gasoline and to reduce emissions from new vehicles; a 2001 diesel
rule to reduce sulfur in diesel fuel and to reduce emissions from new
heavy-duty engines; and a 2004 ozone implementation rule to implement a
new ozone standard. My testimony today (1) summarizes the key findings
of our 2005 report, (2) provides both the recommendations we made to
EPA to address the problems identified and EPA's written response to
these recommendations in August 2006, and (3) provides updated
information on pertinent EPA actions.
summary
When drafting the three clean air rules, EPA generally devoted
little attention to environmental justice. Our 2005 report concluded,
for example, that while EPA guidance on rulemaking states that
workgroups should consider environmental justice in the rulemaking
process, a lack of guidance and training for workgroup members on
identifying environmental justice issues limited their ability to
identify such issues. In addition, while EPA officials stated that
economic reviews of proposed rules considered potential environmental
justice impacts, the gasoline and diesel rules did not provide
decisionmakers with environmental justice analyses, and EPA did not
identify all the types of data necessary to analyze such impacts. In
finalizing the three rules, EPA considered environmental justice to
varying degrees although, in general, the agency rarely provided a
clear rationale for its decisions on environmental justice-related
matters. In responding to comments during the final phase of the
gasoline rule, for example, EPA asserted that the rule would not raise
environmental justice concerns, but did not publish data and
assumptions to support that conclusion.
Our report made four recommendations to help EPA ensure that
environmental justice issues are adequately identified and considered
when clean air rules are being drafted and finalized. The following
includes each recommendation and summarizes the response provided in
EPA's August 24, 2006, letter to the Comptroller General and cognizant
committees of the Congress:
Ensure that the agency's rulemaking workgroups devote
attention to environmental justice while drafting and finalizing clean
air rules. Among the actions highlighted by EPA were that the Office of
Environmental Justice was made an ex officio member of the Regulatory
Steering Committee so that it would be aware of important regulations
under development and participate in workgroups.
Enhance the workgroups' ability to identify potential
environmental justice issues through such steps as (a) providing
workgroup members with guidance and training to help them identify
potential environmental justice problems and (b) involving
environmental justice coordinators in the workgroups when appropriate.
EPA responded that it would supplement its existing environmental
justice training with additional courses to create a comprehensive
curriculum to assist agency rule writers. In response to our call for
greater involvement of Environmental Justice coordinators in workgroup
activities, EPA said that as an ex officio member of the Regulatory
Steering Committee, the Office of Environmental Justice would be able
to keep the program offices' environmental justice coordinators
informed about new and ongoing rulemakings with potential environmental
justice implications. It said that the mechanism for this communication
would be monthly conference calls between the Office of Environmental
Justice and the environmental justice coordinators.
Improve assessments of potential environmental justice
impacts in economic reviews by identifying the data and developing the
modeling techniques that are needed to assess such impacts. EPA
responded that the Office of Air and Radiation was examining ways to
improve its air models so they could better account for the
socioeconomic variables identified in Executive Order 12898.
Direct cognizant officials to respond fully, when
feasible, to public comments on environmental justice by, for example,
better explaining the rationale for EPA's beliefs and by providing its
supporting data. EPA responded that it would re-emphasize the need to
respond fully to public comments and to include in those responses the
rationale for its regulatory approach and a description of its
supporting data.
Upon meeting with cognizant EPA officials on July 18, 2007, we
learned that in the two years since our July 2005 report was issued,
some progress has been made to incorporate environmental justice
concerns into EPA's air rulemaking process but that considerably more
remains to be done. For example, while the Office of Environmental
Justice may be an ex officio member of the Regulatory Steering
Committee, it has not participated directly in any air rules that have
been proposed or finalized since EPA's August 2006 letter to us. In
addition, according to EPA staff, some of the training courses that
were planned have not yet been developed due to staff turnover, among
other reasons. Regarding EPA's efforts to improve assessments of
potential environmental justice impacts in economic reviews, agency
officials said that their data and models have improved since our 2005
report, but that their level of sophistication has not reached their
goal for purposes of environmental justice considerations. They said
that economists within the Office of Air and Radiation are, among other
things, continuing to evaluate and enhance their models in a way that
will further improve consideration of environmental justice during
rulemaking. When asked about GAO's recommendation that cognizant
officials respond more fully to public comments on environmental
justice, the EPA officials cited a recent rulemaking in which this was
done; but added that they were unaware of any memoranda or revised
guidance that would encourage more global, EPA-wide progress on this
important issue.
background
Executive Order 12898 stated that to the extent practicable and
permitted by law, each federal agency, including the EPA, ``. . . shall
make achieving environmental justice part of its mission by identifying
and addressing, as appropriate, the disproportionately high and adverse
human health or environmental effects of its programs, policies, and
activities on minority populations and low-income populations in the
United States . . . .'' In response to the 1994 order, among other
things, the EPA Administrator issued guidance the same year providing
that environmental justice should be considered early in the rulemaking
process. EPA continued to provide guidance regarding environmental
justice in the following years. For example, in 1995, EPA issued an
Environmental Justice Strategy that included, among other provisions,
(1) ensuring that environmental justice is incorporated into the
agency's regulatory process, (2) continuing to develop human exposure
data through model development, and (3) enhancing public participation
in agency decisionmaking.
The Office of Environmental Justice, located within EPA's Office of
Enforcement and Compliance Assurance, provides a central point for the
agency to address environmental and human health concerns in minority
communities and/or low-income communities. However, the agency's
program offices also play essential roles. As such, the key program
office dealing with air quality issues is the agency's Office of Air
and Radiation. In fulfilling its Clean Air Act responsibilities, the
Office works with state and local governments and other entities to
regulate air emissions of various substances that harm human health. It
also sets primary national ambient air quality standards for six
principal pollutants (carbon monoxide, nitrogen oxides, sulfur dioxide,
particulate matter, ground level ozone, and lead) that harm human
health and the environment. These standards are to be set at a level
that protects human health with an adequate margin of safety which,
according to EPA, includes protecting sensitive populations, such as
the elderly and people with respiratory or circulatory problems.
The Office of Air and Radiation has a multistage process for
developing clean air and other rules that it considers a high priority.
Initially, a workgroup chair is chosen from the lead program office--
normally the Office of Air and Radiation in the case of clean air
rulemakings. The workgroup chair assigns the rule one of the three
priority levels, and EPA's top management makes a final determination
of the rule's priority. The priority level assigned depends on such
factors as the level of the Administrator's involvement and whether
more than one office in the agency is involved. The gasoline, diesel,
and ozone implementation rules were classified as high-priority rules
on the basis of these factors. They were also deemed high priority
because they were estimated to have an effect on the economy of at
least $100 million per year or were viewed as raising novel legal and/
or policy issues.\3\
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\3\ President Clinton issued Executive Order 12866 on September 30,
1993, to begin a program to reform the regulatory process and make it
more efficient. Among other things, an OMB review is conducted to
ensure that the rule is consistent with Federal laws and the
President's priorities, including Executive orders.
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For high-priority rules, the workgroup chair is primarily
responsible for ensuring that the necessary work gets done and the
process is documented. Other workgroup members are assigned from the
lead program office and, in the case of the two highest priority rules,
from other offices. Among its key functions, the workgroup (1) prepares
a plan for developing the rule, (2) seeks early input from senior
management, (3) consults with stakeholders, (4) collects data and
analyze issues, (5) analyzes alternative options, and (6) recommends
one or more options to agency management. In addition, a workgroup
economist typically prepares an economic review of the proposed rule's
costs to society. According to EPA, the ``ultimate purpose'' of an
economic review is to inform decisionmakers of the social welfare
consequences of the rule.
After approval by relevant offices within EPA, the proposed rule is
published in the Federal Register, the public is invited to comment on
it, and EPA considers the comments. Comments may address any aspect of
the proposed rule, including whether environmental justice concerns are
raised and appropriately addressed in the proposed rule. Sometimes,
prior to the publication of the proposed rule, EPA publishes an
Advanced Notice of Proposed Rulemaking in the Federal Register. The
notice provides an opportunity for interested stakeholders to provide
input to EPA early in the process, and the agency takes such comments
into account to the extent it believes is appropriate.
As required by the Clean Air Act, when finalizing a rule, EPA must
respond to each significant comment raised during the comment period.
In addition, EPA's public involvement policy states that agency
officials should explain how they considered the comments, including
any change in the rule or the reason the agency did not make any
changes. After these tasks are completed, the rule, if it is
significant, is sent to OMB for approval. Once OMB approves the final
rule and the Administrator signs it, it is published in the Federal
Register. After a specified time period, the rule takes effect.
epa generally devoted little attention to environmental justice in
drafting three rules and considered it to varying degrees in finalizing
them
When drafting the three clean air rules, EPA generally devoted
little attention to environmental justice. We found, for example, that
while EPA guidance states that workgroups should consider environmental
justice early in the rulemaking process, this was accomplished only to
a limited extent. Key contributing factors included a lack of guidance
and training for workgroup members on identifying environmental justice
issues. In addition, while EPA officials stated that economic reviews
of proposed rules considered potential environmental justice impacts,
the gasoline and diesel rules did not provide analyses of such impacts,
nor did EPA identify all the types of data that would have been needed
to perform such analyses. In finalizing the three rules, EPA considered
environmental justice to varying degrees although, in general, the
agency rarely provided a clear rationale for its decisions on
environmental justice-related matters.
For the three rules we examined, concerns about whether
environmental justice was being considered sufficiently early in the
rulemaking process first became evident by its omission on the agency's
``Tiering Form.'' Once a workgroup chair is designated to lead a
rulemaking effort, the chair completes this key form to alert senior
managers to potential issues related to compliance with statutes,
Executive orders and other matters. In each case, however, the form did
not include a question regarding the rule's potential to raise
environmental justice concerns, nor did we find any mention of
environmental justice on the completed form.
Beyond this omission, EPA officials had differing recollections
about the extent to which the three workgroups considered environmental
justice at this early stage of the rulemaking process. The chairs of
the workgroups for the two mobile source rules told us that they did
not recall any specific time when they considered environmental justice
while drafting the rules. Other EPA officials associated with these
rules said environmental justice was considered, but provided no
documentation to this effect. Similarly, the chair of the ozone
workgroup told us that his group considered environmental justice, but
could not provide any specific information. He did, however, provide a
document stating that compliance with Executive orders, including one
related to low-income and minority populations, would be a part of the
economic review that would take place later in the process.
Overall, we identified three factors that may have limited the
ability of workgroups to identify potential environmental justice
concerns early in the rulemaking process. First, each of the three
workgroup chairs told us that they received no guidance in how to
analyze environmental justice concerns in rulemaking. Second, as a
related matter, each said they received little, if any, environmental
justice training. Two chairs did not know whether other members of the
workgroups had received any training, and a third chair said at least
one member did receive some training. Some EPA officials involved in
developing these three rules told us that it would have been useful to
have a better understanding of the definition of environmental justice
and how to consider environmental justice issues in rulemaking.
Finally, the Office of Air and Radiation's environmental justice
coordinators--whose full-time responsibility is to promote
environmental justice--were not involved in drafting any of the three
rules.
As required, an economic review of the costs, and certain other
features, was prepared for all three rules. According to EPA officials,
however, the economic review of the two mobile source rules did not
include an analysis of environmental justice for various reasons,
including the fact that EPA did not have a model with the ability to
distinguish localized adverse impacts on a specific community or
population. EPA's economic review of the 2004 ozone rule did discuss
environmental justice, claiming that the rule would not raise
environmental justice concerns. However, it based this claim on an
earlier analysis of a 1997 rule that established the 8-hour ozone
national ambient air quality standard. Yet rather than indicating that
the 1997 ozone rule did not raise environmental justice concerns, this
earlier economic review said it was not possible to rigorously consider
the potential environmental justice effects because the states were
responsible for its implementation. Hence, the inability of EPA to
rigorously consider environmental justice in the economic review of the
1997 rule appears to contradict EPA's subsequent statement that there
were no environmental justice concerns raised by the 2004 ozone
implementation rule.
In finalizing each of the three rules, EPA considered environmental
justice to varying degrees, but the gasoline rule in particular
provided a questionable example of how comments and information related
to environmental justice were received and handled. As noted earlier in
this testimony, the Clean Air Act requires that a final rule must be
accompanied by a response to each significant comment raised during the
comment period. In addition, according to EPA's public involvement
policy, agency officials should explain how they considered the
comments, including any change in the rule or the reason the agency did
not make any changes. In the case of the gasoline rule, representatives
of the petroleum industry, environmental groups, and others had
asserted during the comment period that the proposed rule did in fact
raise significant environmental justice concerns. One commenter claimed
that inequities arose from the fact that while the national air quality
benefits were broadly distributed across the country, higher per capita
air quality costs were disproportionately confined to areas around
refineries.
Despite comments such as these, EPA's final rule did not state
explicitly whether it would ultimately raise an environmental justice
concern, although EPA officials told us in late 2004 that it would not.
Furthermore, EPA did not publish the data and assumptions supporting
its position. In fact, an unpublished analysis EPA developed before
finalizing the rule appeared to suggest that environmental justice may
indeed have been an issue. Specifically, EPA's analysis showed that
harmful air emissions would increase in 26 of the 86 counties with
refineries affected by the rule. According to EPA's analysis, one or
both types of emissions--nitrogen oxides and volatile organic
compounds--could be greater in the 26 counties than the rule's benefit
of decreased vehicle emissions. In one case involving a Louisiana
parish, EPA estimated that net emissions of nitrogen oxides could
increase 298 tons in 1 year as a result of the rule to refine cleaner
gasoline.
Under EPA's rulemaking process, the agency prepares a final
economic review after considering public comments. EPA guidance
indicates that this final economic review, like the economic review
during the proposal stage, should identify the distribution of the
rule's social costs across society. In the case of the three air rules,
however, EPA completed a final economic review after receiving public
comments but performed no environmental justice analyses. The
publication of the final rules gave EPA another opportunity to explain
how it considered environmental justice in the rule's development. When
EPA published the final rules, however, two of the three rules did not
explicitly state whether they would raise an environmental justice
concern. Only the ozone rule stated explicitly that it would not raise
an environmental justice concern.
gao's recommendations and epa's response
We made four recommendations to help EPA resolve the problems
identified by our study. In its June 10, 2005 letter on a draft of our
report, EPA initially said it disagreed with the recommendations,
saying it was already paying appropriate attention to environmental
justice. However, EPA responded more positively to each of these
recommendations in an August 24, 2006 letter.\4\ The first
recommendation called upon EPA rulemaking workgroups to devote
attention to environmental justice while drafting and finalizing clean
air rules. EPA responded that to ensure consideration of environmental
justice in the development of regulations, the Office of Environmental
Justice was made an ex officio member of the agency's Regulatory
Steering Committee, the body that oversees regulatory policy for EPA
and the development of its rules. The letter also said that (1) the
agency's Office of Policy, Economics and Innovation (responsible in
part for providing support and guidance to EPA's program offices and
regions as they develop their regulations) convened an agency-wide
workgroup to consider where environmental justice might be considered
in rulemakings and (2) it was developing ``template language'' to help
rule writers communicate findings regarding environmental justice in
the preamble of rules.
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\4\31 U.S.C. 720 requires the head of a Federal Agency to submit a
written statement of the actions taken on our recommendations to the
Senate Committee on Homeland Security and Governmental Affairs, the
House Committee on Oversight and Government Reform, and the House and
Senate Committees on Appropriations within 60 days of issuance of our
recommendations.
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Second, to enhance workgroups' ability to identify potential
environmental justice issues, we called on EPA to (a) provide workgroup
members with guidance and training to help them identify potential
environmental justice problems and (b) involve environmental justice
coordinators in the workgroups when appropriate. In response to the
call for better training and guidance, EPA said it was supplementing
existing training with additional courses to create a comprehensive
curriculum that will meet the needs of agency rule writers.
Specifically, it explained that its Office of Policy, Economics, and
Innovation was focusing on how agency staff can best be trained to
consider environmental justice during the regulation development
process; while the Office of Air and Radiation had already developed
environmental justice training tailored to the specific needs of that
office. Among other training opportunities highlighted in the letter
was a new on-line course offered by the Office of Environmental Justice
that addresses a broad range of environmental justice issues. EPA also
cited an initiative by the Office of Air and Radiation's Office of Air
Quality Planning and Standards to use a regulatory development
checklist to ensure that potential environmental justice issues and
concerns are considered and addressed at each stage of the rulemaking
process. In response to our call for greater involvement of
Environmental Justice coordinators in workgroup activities, EPA said
that as an ex officio member of the Regulatory Steering Committee, the
Office of Environmental Justice will be able to keep the program office
environmental justice coordinators informed about new and ongoing
rulemakings with potential environmental justice implications. It said
that the mechanism for this communication would be monthly conference
calls between the Office of Environmental Justice and the environmental
justice coordinators.
Third, we recommended that the Administrator improve assessments of
potential environmental justice impacts in economic reviews by
identifying the data and developing the modeling techniques needed to
assess such impacts. EPA responded that its Office of Air and Radiation
was reviewing information in its air models to assess which demographic
data could be introduced and analyzed to predict possible environmental
justice effects. It also said it was considering additional economic
guidance on methodological issues typically encountered when examining
a proposed rule's impacts on subpopulations highlighted in the
Executive order. Finally, it noted that the Office of Air and Radiation
was assessing models and tools to (1) determine the data required to
identify communities of concern, (2) quantify environmental health,
social and economic impacts on these communities, and (3) determine
whether these impacts are disproportionately high and adverse.
Fourth, we recommended that the EPA Administrator direct cognizant
officials to respond more fully to public comments on environmental
justice by, for example, better explaining the rationale for EPA's
beliefs and by providing supporting data. EPA said that as a matter of
policy, the agency includes a response to comments in the preamble of a
final rule or in a separate ``Response to Comments'' document in the
public docket. The agency noted, however, that it will re-emphasize the
need to respond to comments fully, to include the rationale for its
regulatory approach, and to better describe its supporting data.
epa's progress in responding to our recommendations
On July 18, 2007, we met with EPA officials to obtain more up-to-
date information on EPA's environmental justice activities, focusing in
particular on those most relevant to our report's recommendations.
While we have not had the opportunity to independently verify the
information provided in the few days since that meeting, our
discussions did provide insights into EPA's progress in improving its
environmental justice process in the two years since our report was
issued. The following discusses EPA activities as they relate to each
of our four recommendations.
First, regarding our recommendation that workgroups consider
environmental justice while drafting and finalizing regulations, EPA
had emphasized in its August 2006 letter that making the Office of
Environmental Justice an ex officio member of the Agency's Regulatory
Steering Committee would not only allow it to be aware of all important
EPA regulatory actions from their inception through rule development
and final agency review, but more importantly, would allow it to
participate on workgroups that are developing actions with potential
environmental justice implications and/or recommend that workgroups
consider environmental justice issues. To date, however, the Office of
Environmental Justice has not participated directly in any of the 103
air rules that have been proposed or finalized since EPA's August 2006
letter. According to EPA officials, the Office of Environmental Justice
did participate in one workgroup of the Office of Solid Waste and
Emergency Response, and provided comments on the final agency review
for the Toxic Release Inventory Reporting Burden Reduction Rule. EPA
officials also emphasized that its Tiering Form would be revised to
include a question on environmental justice. As noted earlier, this key
form is completed by workgroup chairs to alert senior managers to the
potential issues related to compliance with statutes, Executive orders,
and other matters. However, two years after we cited the omission of
environmental justice from the Tiering Form, EPA explained that its
inclusion has been delayed because it is only one of several issues
being considered for inclusion in the Tiering process.
Second, regarding our recommendation to (1) improve training and
(2) include Environmental Justice coordinators from EPA's program
offices in workgroups when appropriate, our latest information on EPA's
progress shows mixed results. On the one hand, EPA continues to provide
an environmental justice training course that began in 2002, and has
included environmental justice in recent courses to help rule writers
understand how environmental justice ties into the rulemaking process.
On the other hand, some training courses that were planned have not yet
been developed. Specifically, the Office of Policy, Economics, and
Innovation has not completed the planned development of training on
ways to consider environmental justice during the regulation
development process. In addition, while the EPA said in its August 2006
letter that Office of Air and Radiation had developed environmental
justice training tailored to that office, air officials told us last
week that in fact they were unable to develop the training due to staff
turnover and other reasons. Regarding our recommendation to involve the
Program Offices' Environmental Justice coordinators in rulemaking
workgroups when appropriate, EPA's August 2006 letter had said that the
Coordinators' involvement would be facilitated through the Office of
Environmental Justice's participation on the Regulatory Steering
Committee. Specifically, it said that the Office of Environmental
Justice would be ``able to keep the agency's [Environmental Justice]
Coordinators fully informed about new and ongoing rulemakings with
potential Environmental Justice implications about which the
coordinators may want to participate.'' According to EPA officials,
however, this active, hands-on participation by Environmental Justice
coordinators in rulemakings has yet to occur.
Third, regarding our recommendation that EPA improve assessments of
potential environmental justice impacts in economic reviews by
identifying the data and developing the modeling techniques that are
needed to assess such impacts, EPA officials said that their data and
models have improved since our 2005 report, but that their level of
sophistication has not reached their goal for purposes of environmental
justice considerations. EPA officials said that to understand how
development of a rule might affect environmental justice for specific
communities, further improvements are needed in modeling, and more
specific data are needed about the socio-economic, health, and
environmental composition of communities. Only when they have achieved
such modeling and data improvements can they develop guidance on
conducting an economic analysis of environmental justice issues.
According to EPA, among other things, economists within the Office of
Air and Radiation are continuing to evaluate and enhance their models
in a way that will further improve consideration of environmental
justice during rulemaking. For example, EPA officials told us that at
the end of July, a contractor will begin to analyze the environmental
justice implications of a yet-to-be-determined regulation to control a
specific air pollutant. EPA expects that the study, due in June 2008,
will give the agency information about what socio-economic groups
experience the benefits of a particular air regulation, and which ones
bear the costs. EPA expects that the analysis will serve as a prototype
for analyses of other pollutants.
Fourth, regarding our recommendation that the Administrator direct
cognizant officials to respond more fully to public comments on
environmental justice, EPA officials cited one example of an air rule
in which the Office of Air and Radiation received comments from tribes
and other commenters who believed that the proposed National Ambient
Air Quality Standard for PM10-2.5 raised environmental
justice concerns. According to the officials, the agency discussed the
comments in the preamble to the final rule and in the associated
response-to-comments document. Nonetheless, the officials with whom we
met said they were unaware of any memoranda or revised guidance that
would encourage more global, EPA-wide progress on this important issue.
concluding observation
Our 2005 report concluded that the manner in which EPA has
incorporated environmental justice concerns into its air rulemaking
process fell short of the goals set forth in Executive Order 12898. One
year after that report, EPA committed to a number of actions to be
taken to address these issues. Yet an additional year later, most of
these commitments remain largely unfulfilled. While we acknowledge the
technical and financial challenges involved in moving forward on many
of these issues, EPA's experience to date suggests the need for
measurable benchmarks--both to serve as goals to strive for in
achieving environmental justice in its rulemaking process, and to hold
cognizant officials accountable for making meaningful progress.
Madam Chairman, this concludes my prepared statement. I would be
happy to respond to any questions that you or Members of the
subcommittee may have.
[GRAPHIC] [TIFF OMITTED] T1978.003
Responses by John B. Stephenson to Additional Questions from
Senator Inhofe
Question 1. As a matter of law, do you think that we may be giving
Executive Order 12898, a non-binding, legally unenforceable Executive
order, more official standing than is legally permissible?
Response. Executive Order 12898, like other Executive orders,
provides that Federal agencies shall take certain actions. In
particular, Executive Order 12898 specifies Federal actions to address
environmental justice in minority populations and low-income
populations. Our July 2005 report \1\ found that EPA took a number of
actions to implement Executive Order 12898 after the order was issued
in 1994. However, our report also found that, in drafting three Clean
Air Act rules between fiscal years 2000 and 2004, EPA generally devoted
little attention to environmental justice. In addition, in at least one
respect, EPA did not give Executive Order 12898 the same attention at
the time of our study as it gave other Executive orders.
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\1\U.S. Government Accountability Office, Environmental Justice:
EPA Should Devote More Attention to Environmental Justice When
Developing Clean Air Rules, GAO-1-05-289 (Washington, DC: July 2005).
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Specifically, EPA included questions concerning compliance with
other Executive orders on its Tiering Form, a key form used early in
the rulemaking process to help establish the level of senior management
involvement needed in drafting rules, but it did not include a question
on environmental justice.
Question 2. Assuming that EPA's primary responsibility is to assess
environmental risk in populations, do you think EPA is the appropriate
Federal Agency to perform the kind of complicated socio-economic,
demographic and public health impact determinations, normally performed
by other agencies such as the Centers for Disease Control and the
Department of Housing and Urban Development?
Response. Executive Order 12898 provides that each Federal Agency
shall address, as appropriate, disproportionately high and adverse
human health or environmental effects of its programs, policies, and
activities on minority populations and low-income populations. Our work
has not examined the relative roles and responsibilities among agencies
implementing this order. However, we would note that the Executive
order does create an Interagency Working Group on Environmental
Justice, which, under the terms of the order, is to provide guidance to
Federal agencies on criteria for identifying the disproportionately
high and adverse human health or environmental effects on minority
populations and low-income populations. The order states that the
working group comprises the heads or designees of a number of executive
agencies and offices, including the Department of Health and Human
Services, the Department of Housing and Urban Development, and EPA.
Question 3. Assuming that all disproportionate impacts are not
automatically negative impacts; what weight do you believe is given to
the economic benefits, increased employment, social services and lower
housing costs associated with industrial development in low income
areas?
Response. Executive Order 12898, in Sec. 1-101, only refers to an
agency's responsibility to address, as appropriate,
``disproportionately high and adverse human health or environmental
effects of its programs, policies and activities on minority
populations and low-income populations'' (emphasis added). However,
another Executive order, Executive Order 12866, requires Federal
agencies to prepare assessments of the potential costs and benefits of
regulatory actions defined to be significant under the order.
Question 4. EPA's various guidance on environmental justice over
the last 13 years is considered an interpretive rule, stating what the
agency ``thinks'' and serves only to remind affected parties of
existing duties. The courts have decided that interpretive rules are
not subject to the Administrative Procedures Act (``APA'') and are
outside the scope of judicial review. This leaves ultimate discretion
to the EPA on what are ``high and adverse impacts.'' The APA, set forth
by Congress 60 years ago, created a consistent and transparent process
for agency rulemakings. Do you believe that an interpretive rule, like
the EJSEAT, is meant to affect substantive change in regulations or
serve as a basis for denying permits?
Response. Our work has not examined the extent to which EJSEAT has
a binding effect or the force and effect of law and therefore could be
subject to notice and comment requirements under the Administrative
Procedures Act.
Senator Clinton. Thank you very much, Mr. Stephenson.
We will rotate in 5-minute rounds.
Mr. Nakayama, in your testimony today you state that, ``We
recognize that minority and/or low-income communities may,''
may, and I emphasize may, ``be exposed disproportionately to
environmental harms and risks.'' But I don't think there is any
may about it. There is clearly documented evidence of
disproportionate burden in minority and/or low-income
communities.
So let me ask you, in your judgment are there communities
of color or low-income communities in our country today that
could be experiencing or have experienced disproportionately
high levels of pollution?
Would you please turn on your microphone?
Mr. Nakayama. Let me say first of all I do agree that there
are disproportionate exposures to pollutants. I don't think
there is any question about that. I think the question facing
the Agency is are we making progress with respect to the level
of disparity, do these disparities result from land use and
development patterns that have existed for decades. The issue
for us at EPA is are we making progress? Is the situation
getting better or is it getting worse?
I think there is clear evidence that we are taking action
to clean the air and water, and address these issues. We are
trying to build capacity in these communities so that people
can meaningfully participate. We do believe that meaningful
participation by community groups is the key. We believe that
collaborative problem solving is an excellent tool, based on
our experience, for getting the various parties together and
seeking commonsense solutions so that we can address these
disparities.
There are frankly other drivers that cause disparate
exposure. For example, where you have intermodal transportation
facilities like a port situation, you have marine diesel
vessels, you have freight traffic and you have rail traffic. It
makes economic and environmental sense from the efficiency
standpoint, the fuel economy standpoint, to co-locate those
facilities. Unfortunately, that generates a high environmental
stress level on the community that lives adjacent to that
facility. So these are the types of situations we are trying to
address, and there will be no magic silver bullet. This is hard
work. This is very tough work.
Senator Clinton. Well, I appreciate how hard it is. What I
am concerned about is what appears to be a limited effort in
the last 6\1/2\ years to fulfill the implementation
requirements under the Executive order. In fact, if one looks
at the history of action during this Administration, there
appears to be a dilution of environmental justice in a way that
de-emphasizes communities of color and low-income populations,
which was certainly not the intention of the Executive order.
Both the GAO and OIG reports identified training of EPA
employees as an issue that the Agency needed to address. In
your testimony, you note that since 2002, nearly 4,000
employees of EPA and other agencies have undergone
environmental justice training, but that figure represents a
very small proportion of all employees and only a quarter of
the Agency's total employees. It does not appear that the
Agency has made the provision of training a priority.
In the Office of Air and Radiation Environmental Justice
Action Plan for 2007 and 2008, they list as an accomplishment
the fact that 44 employees have undergone training--that is 44
out of hundreds. I don't see the evidence in your testimony or
in the reports by the Office of the Inspector General or the
GAO that training is being taken seriously.
Similarly, NEJAC, the National Environmental Justice
Advisory Council, has had only three full meetings during the
Bush administration, the last one of which took place in 2004.
There have been reports released, three of them in August 2006,
to which the Agency submitted responses, but I would like to
ask you, what has been done in the 11 months since those
reports from NEJAC, the Advisory Council, have been issued?
What has been the reaction of the EPA?
Mr. Nakayama. Well, I appreciate you bringing this issue to
my attention, but I can say that I personally have attended two
NEJAC meetings since I joined the Agency in August 2005, so I
am not sure with respect to the status of the NEJAC that there
has been any sort of pause in our efforts. I attended both of
those meetings because I realized EJ was a very important
issue. With respect to the recommendations to the NEJAC, the
NEJAC is staffed by volunteers. These are people who agree to
provide their expertise to the Agency.
We very much appreciate their efforts. They are volunteers.
Prior to 2005, when the NEJAC submitted recommendations--and
this goes back throughout the history of the NEJAC, it is not
an issue of one Administration versus the other--the Agency
never, never issued a written response to the NEJAC. I said
that is not right. We ought to respond. Those are
recommendations that they deserve a response to.
So we did respond in writing, placed on our Web site the
responses to the three sets of recommendations the NEJAC
provided. I thought that was the least we could do, and it
showed that we were being responsive with respect to the
NEJAC's recommendations by providing written public responses.
We did adopt a number of recommendations that the NEJAC made.
Senator Clinton. Well, let me just say that if NEJAC
meetings have been happening, then how come the Agency's own
Website says that they have met 19 times since formed back in
the Clinton administration, but only three times in the Bush
administration. So if the Website information is wrong, please
give us corrected information for our records.
Finally, I want to raise a very personal concern with you.
In our second panel, we will hear from Peggy Shepard, executive
director of the West Harlem Environmental Action Group. She has
great frustration at the EPA's delay in establishing a regional
listening session in Region II so that residents of New York
and other Region II areas have the opportunity to convey their
EJ concerns directly to the EPA staff.
Planning on this meeting to meet with the Region II
representatives and concerned citizens began in 2002. Five
years later, no such meeting has occurred. Mr. Nakayama, would
you give me your commitment that the EPA will hold a listening
session in Region II by the end of this year?
Mr. Nakayama. I have not heard about this issue before. I
will be glad to look into it.
Senator Clinton. Will you give me your commitment that the
EPA will meet with Region II for a listening session before the
end of this year?
Mr. Nakayama. I see no reason why we shouldn't be able to
hold such a listening session.
Senator Clinton. I take that as a commitment and this
committee will hold you and the EPA to that commitment. My
constituents deserve answers to their legitimate questions.
They have been waiting for 5 years. I look forward to having a
representative at that meeting when it is held before the end
of this year.
Mr. Nakayama. Let me, if I could, discuss regional
listening sessions. I think they are very valuable. We do need
to hear from the public. We do need to hear from community
groups. Shortly after Katrina and Rita, we held one of the few
listening sessions down in the Gulf Coast. It was very unusual
for the Federal Government to come in right after the hurricane
and ask, how can we do a better job. But we did. We went down
there. We went down to both Mississippi and Louisiana. We held
those Gulf Coast listening sessions, focused on EJ. We got
wonderful feedback from the community groups.
I personally thought that was one of the most valuable
things we could have done. I think listening sessions are very
important. I do not know why we haven't had one since 2002. I
will definitely go look into it. I see no reason, as I said,
that we should not have one. I personally have a rule in my own
office: any EPA employee that has a policy issue, they can call
me up Friday at 5 p.m. and I will be in my office and we will
have a discussion. I can't help my employees with their boss,
their raise or their office, but I will address policy issues.
I think that is the best way to get input directly from the
people involved.
So I will look into it and I see no reason, as I said, why
we couldn't have that listening session.
Senator Clinton. Well, I will look forward to the date of
that being scheduled as soon as possible.
Senator Boxer.
Senator Boxer. Senator Clinton, I certainly hope that after
the listening session in New York, you will have a better
outcome than what happened when they listened in Katrina.
[Applause.]
Senator Boxer. The people down there--no, don't do this.
I mean, the people down there are now suffering with
formaldehyde in the trailers. So you know, let's do better.
Let's really listen. It is one thing to say you are listening.
It is another to really listen. So I look forward to the
results of that.
Mr. Najjum, the Inspector General issued valued and
forceful reports on EPA actions on environmental justice in
2004 and 2006. Is that correct?
Mr. Najjum. Yes, ma'am, that is correct.
Senator Boxer. Did the Inspector General draft, but not
issue, another report on environmental justice in 2005?
Mr. Najjum. Yes, we have a draft report that we are looking
at to see why it wasn't issued.
Senator Boxer. Well, OK, so there was a report that was
written in 2005 on environmental justice and it was never
brought to the public light. Is that correct?
Mr. Najjum. It was issued in draft and then before it was
issued in final, it was brought back. The effort was refocused
into the work that was released in the 2006 report.
Senator Boxer. I need to see that 2005 report.
Mr. Najjum. Yes, ma'am.
Senator Boxer. We need to see it. So will you please send
to us at your earliest convenience, and that would mean at the
end of business today if you can, this unissued, unedited draft
report.
Mr. Najjum. Certainly as unissued, Senator. What it is,
what we are doing at the current time, if I could explain just
a moment, is when we found that we had a report that made it
almost to the point of final issuance and was not issued,
reworked and then issued later on as a report, we are doing an
internal quality control review to see why that happened. So
that is in process. It is not a case of where we took a report
and decided not to issue it.
We are looking at the rationale for why the IG at the time
decided not to issue that report, what happened to it. On the
positive side, the work was refocused and the recommendations
are similar to the recommendations in the 2006 report, but that
is a cause of concern within the IG's office itself as to why
that happened.
Senator Boxer. Well, the IG should conduct independent
oversight on EPA, and did EPA concerns contribute in any way to
the IG's failure to issue this report?
Mr. Najjum. At this point, I couldn't say yes or no, but I
don't think that that was the sole reason why.
Senator Boxer. I didn't ask if it was the sole reason.
Mr. Najjum. Yes, ma'am.
Senator Boxer. Did the EPA concerns contribute in any way
to the IG's failure to issue this report in 2005?
Mr. Najjum. I don't believe I can answer that because I
have no actual trail that would show----
Senator Boxer. Well, let me give you a trail.
Mr. Najjum. OK.
Senator Boxer. I want you to look at the Office of Air and
Radiation and see whether or not they are the ones responsible
for not letting this report out. That is giving you some hints.
Mr. Najjum. I understand that, Senator, and I also
understand that the responsibility for not issuing that report
lies with the Office of the Inspector General. If there was a
mistake made in not issuing it, it was our mistake.
Senator Boxer. Well, whether it is a mistake, whether it
conveniently got buried because the people in EPA didn't want
it, I am not really that interested. What I am interested in is
seeing it.
Mr. Najjum. Yes, ma'am.
Senator Boxer. So is Senator Clinton. You know, we have had
experiences in other committees where reports have somehow
magically never seen the light of day. I had a couple of them
in Commerce. It was just interesting, Senator Clinton, because
the results of these independent reports conflicted with what
the Bush administration wanted to do, so they got deep sixed.
So I am asking you for the record, will you do everything
in your power to get us this report unedited, the draft report?
Mr. Najjum. Yes, Senator.
Senator Boxer. Thank you. We will follow up.
Can I have another few minutes here?
Senator Clinton. Please.
Senator Boxer. Good.
Mr. Najjum, you said that there have been some positive
steps taken by the EPA in this area. Are you aware that in
2005, 2006, 2007 and 2008 in their budget request, EPA has
asked for cuts in these programs, the environmental programs
and management account and the hazardous waste Superfund
account.
Mr. Najjum. Yes, Senator, I am.
Senator Boxer. So what good steps have they taken?
Mr. Najjum. Not doing the budget review Senator, but what
we have seen is that in response to our report and the
recommendations that we made as compared to the 2004 report
where we got complete nonconcurrence and a disagreement on just
about everything that we recommended on the 2006 report, the
recommendations, which I might add are consistent with what we
recommended in 2004 because the team kept coming back to the
same issue since it was not being implemented correctly, we did
get a corrective action plan. We did get agreement and we do
have some motion to implement the recommendations that we made.
So we consider that positive.
Senator Boxer. OK. I would consider it positive if there
was some interest in funding some of these programs at the
level they need to be at. Even in a Republican Congress, we saw
the Republican Congress vote more money. So this has been an
amazing situation here.
Mr. Nakayama, the 2007 Toxic Waste and Race Study found
that minorities make up 90 percent of the people who live near
hazardous waste facilities in Los Angeles. OK? Doesn't it show
that EPA should include a focus on minorities in addressing
environmental justice?
Mr. Nakayama. I think the issue with respect to any
particular statistic like that is, are we making progress. In
other words, was it 95 percent 5 years before that? The issue
really is are we making progress and are the toxic waste sites
or the hazardous waste facilities, are they meeting their
environmental responsibilities under law and regulations.
Senator Boxer. Well isn't it true that the original
Executive order said that EPA should reduce health threats for
people in communities like L.A. by focusing on minority and
low-income people. Wasn't that the original Executive order's
intention?
Mr. Nakayama. That was certainly the Executive order's
intention, but the Executive order did not provide any separate
statutory authorities to EPA. It is the extent permitted by
law. When we act under our authorities of the Clean Water Act,
under RCRA/CERCLA, we act according to the statutory
authorities we have available to us. There is no separate
statutory authority where if a facility meets its
responsibilities and meets all the permitting requirements and
other requirements, that we can take action.
Senator Boxer. Look, I know what you are doing here. You
are literally changing the whole point of the original
Executive order. What you are saying is we are just going to
make progress for everybody. I know you don't doubt what I say
that minorities make up 90 percent of the people who live near
hazardous waste facilities in L.A. and who knows, it may be
higher in New York and other places. I don't know the figures.
I am amazed that you continue to pretend, and EPA does,
that race isn't a crucial factor. I guess you are confirming
the argument that EPA continues to believe it shouldn't focus
on minority groups when implementing environmental justice
activities. It is just putting your head in the sand.
Well, you said there were legal reasons. So do you support
new legal authority that we could put into law to consider
environmental justice? Would you support that?
Mr. Nakayama. Let me make two suggestions, if I could as we
go forward. That would be helpful. It would be very helpful
with respect to environmental justice. There are authorities
that would be very helpful to EPA. One is clarification of our
ability to have supplemental environmental projects. We have a
very robust enforcement program, $20 billion in settlements
over the last 3 years; $26 million every work day. The last 3
years have been the first, second and third highest years in
the Agency's history with respect to our enforcement results.
Often, respondents or defendants prefer to fund a
supplemental environmental project.
Senator Boxer. I don't have too much time for this.
Do you support new legal authority to consider
environmental justice? Yes or no? If you do, that would be
great for Senator Clinton and I. We can work with you. Do you
support that? You said you couldn't do it because you hadn't
the legal authority. I am asking you, does it help you to have
the legal authority?
Mr. Nakayama. I would have to look at the specific proposal
before I am in a position I think----
Senator Boxer. Well, I am not asking about a specific
proposal. I am asking you, since you said that there was
nothing in the law, would it help you to have something in the
law?
Mr. Nakayama. It depends what the law is.
Senator Boxer. You are just evading.
I would just ask unanimous consent to place in the record
the Inspector General's report of 2004. We are going to look
for the one of 2005, in which it says the Agency changed the
focus of the environmental justice program by de-emphasizing
minority and low-income populations, emphasizing the concept of
environmental justice for everyone. This action moved the
Agency away from the basic tenet of the Executive order and has
contributed to the lack of consistency in the area of
environmental justice integration.
I just think this is a sad legacy of this Administration
because the people who are here will tell you they are the ones
that are suffering. They are the kids who are getting the
asthma and worse.
So I hope you think about working with us on changing the
law since this Executive order has been twisted away from what
President Clinton said it ought to be. We are never going to
make progress if we just dance around this.
Again, I look forward to getting the 2005 report.
Thank you very much, Senator Clinton.
Senator Clinton. Thank you very much, Senator Boxer. The
material will be entered into the record.
Senator Clinton. I just want to end this panel with a
question or two for Mr. Stephenson. You have heard Mr. Nakayama
consistently say that the important point is how much progress
is being made. In the initial GAO report in 2005, you
identified issues at the Agency and in your testimony today you
note that the EPA has taken steps to incorporate environmental
justice concerns into the rulemaking process. In your view, has
the EPA made significant progress in seeking to address
environmental justice concerns?
Mr. Stephenson. The problem as we see it is that, while EPA
made the Office of Environmental Justice an ex officio member
of the Regulatory Steering Committee, that is at a very high
level. What we don't see is the crosswalk or the
institutionalization of that high level committee into the many
individual rulemakings. It is difficult for people in the EJ
office to identify which rules they should pay attention to,
and as a result there is almost no participation in the
individual work groups on individual rules.
So in our view, EPA has not yet institutionalized
environmental justice and as a result there is no way to
determine exactly what progress has been made.
Senator Clinton. Based on your study, does the EPA at this
time have a memorandum, guidance or strategic plan that would
enable the Agency to make broad-based progress on environmental
justice issues?
Mr. Stephenson. No, that is why we are suggesting that
there needs to be some benchmarks with which EPA can be held
accountable, similar to what it did in the grants management
process. We would like to see a plan like that where you can
actually hold someone's feet to the fire on actions that have
been implemented.
Senator Clinton. Well, we would like to see such a plan as
well. That will be one of the reasons why we will be
introducing legislation to try to actually bring about
implementation on the environmental justice issues that we care
so much about.
Thank you very much to this panel.
I would ask that the second panel come forward. The second
panel is a very distinguished one indeed. As they take their
seats, let me introduce to you Representative Harold Mitchell
from the South Carolina State Legislature. Representative
Mitchell founded the group ReGenesis, an environmental justice
group based in Spartanburg, S.C. He received the 2002 EPA
National Community Excellence Award and the 2004 Urban League
Humanitarian Award. In 2005, Mr. Mitchell was elected to the
South Carolina State Legislature.
Second, Dr. Robert D. Bullard is director of the
Environmental Justice Resource Center at Clark Atlanta
University. Dr. Robert Bullard is the ware professor of
Sociology and director of the Environmental Justice Resource
Center at Clark Atlanta University. He is one of the leading
authorities in the Nation regarding environmental justice. As
an environmental sociologist, he has conducted research and
written extensively on issues about urban land use,
environmental quality, and housing.
Peggy Shepard is the executive director of the West Harlem
Environmental Action, WE ACT. She is the founder, in fact, of
WE ACT, New York's first environmental justice organization.
From January 2001 to 2003, Ms. Shepard served as the first
female chair of the National Environmental Justice Advisory
Council. That is NEJAC that some of you have heard us refer to,
that serves as an advisory council to the Environmental
Protection Agency. She received the Heinz Award for the
Environment in 2004.
Finally, Dr. Beverly Wright--we have to get to Mr.
Steinberg; I am sorry--Dr. Beverly Wright, founder and director
of the Deep South Center for Environmental Justice, which
develops minority leadership in the struggle for environmental,
social and economic justice along the Mississippi River
corridor of Louisiana. For more than a decade, Dr. Wright has
been a leading scholar, advocate and activist in the
environmental justice arena. She is the co-author of the Toxic
Waste and Race at 20 report.
Mr. Michael Steinberg is representing the Business Network
for Environmental Justice, a lawyer whose practice focuses on
environmental law matters, with special emphasis on litigation
and counseling involving the Resource Conservation and Recovery
Act, Superfund law, and environmental justice issues under
Federal and State civil rights laws.
We will start with Hon. Harold Mitchell and we will go
right down the panel, ending with Dr. Beverly Wright.
Representative Mitchell.
STATEMENT OF HAROLD MITCHELL, SOUTH CAROLINA STATE LEGISLATURE
Mr. Mitchell. Good afternoon. I would like to take this
opportunity to thank you for this historic opportunity to talk
about environmental justice in Spartanburg, SC. I first want to
tell you, Senator Clinton, thank you for your leadership back
on the Hill once again on the subject of environmental justice.
I questioned the sickness and mortality in my neighborhood
of the two Superfund sites and six Brownfields sites, of the
Arkwright/Forest Park neighborhoods in Spartanburg, SC. The
property line of the home I grew up in was directly adjacent to
the IMC Global Fertilizer facility, the largest producer and
supplier of concentrated phosphates and potash fertilizers.
This facility was closed in 1986 and was given a clean bill of
health.
We later found that toxic furnace dust from Georgia was
sent to the facility for disposal and was used as a filler for
the fertilizer. The facility never passed its stack emissions
test, but did take responsibility for anything that was metal
in the community, including my parent's car and repainted cars
almost eight tenths of a mile away from the facility.
Located in the rear of my parents' home was the old city
landfill, which according to the State Environmental Agency
said that the landfill did not exist. Later, I found that 99.9
percent of all medical, auto and industrial waste was dumped
there. One of the things about that was that the residents were
all on drinking water wells at that particular time. To the
rear was an operating chemical facility, which was supposed to
have been an apartment complex. Due to zoning in Spartanburg
County, a developer came in and turned this into a chemical
storage facility, which is now a full-blown operating chemical
plant.
I am convinced that the early deaths of my sister and my
mother's sister's daughter from sepsis encephalitis, a germ
poisoning, which was in front of our home, was where the raw
materials area for this fertilizer plant was located.
My father, who died of lymphoma, was the exact same thing,
that I first got involved with with this project, which was
never diagnosed, but he had all the exact same symptoms I had
and was later diagnosed and died New Year's Day of 1997.
In 1998, I formed an organization called ReGenesis to
address the environmental conditions in the three neighborhoods
surrounding the fertilizer plant. These abandoned sites became
incubators for illegal activity and drug use, and the social
and economic deterioration of the community and chronic health
problems were overwhelming when you look at the numbers of high
infant mortality and cancer within the area.
In 1998, with about 1,400 members of our community group,
we requested that EPA Region IV come and conduct workshops and
talk to the community. We began to talk about cleanup and reuse
of contaminated sites. This is where I saw the opportunity to
regain what was lost during the urban renewal programs, when 60
black-owned businesses left the south side of Spartanburg. This
was the pivotal point in the process for our community because
of the earlier efforts of the environmental justice movement
that made sure that communities became equal stakeholders in
the public participation process.
I attended my first NEJAC meeting here in Washington. I
found that other communities were impacted around the country
just like the one that I grew up in myself and heard those
testimonies. It was helpful at this point to hear the lessons
learned, good and bad, from other impacted communities around
the country.
At this NEJAC meeting, that is where I first learned about
the Executive Order 12898 on environmental justice that was
signed by President Clinton. The Executive order got the
attention of the city and county officials. Your former
colleague and my former U.S. Senator Fritz Hollings gave us
support from the Hill which also grabbed the attention of many
of those within our local governments because, as you know, the
limited resources that we hear continually to address these
issues were very complex. When you talk about accountability
and the unknown, a lot of the decisionmakers just refuse to
come to the table.
But in 2000, EPA Region IV awarded ReGenesis with a $20,000
small grant to help build the capacity of the community, which
created a lot of the partnerships that we knew were necessary
to address our issue. This grant brought the attention with
local leaders to look at other grant opportunities such as the
Superfund Redevelopment Initiative and the Brownfields
assessment grant.
After creating this vehicle that many wanted to stay away
from, now it became a vehicle that no one wanted to be left out
of. So at this point, I traveled once again back to Washington
and it was at that point where I began to see other Federal
agencies addressing environmental justice in their initiatives
that I felt could be used in Spartanburg.
From that point, the $20,000 we have leveraged into $167
million in our community, where are addressing through citizen
involvement housing, transportation, job creation, community
health, entrepreneurial opportunities for the south side of
Spartanburg. I have sponsored just this year because of what
has happened in Spartanburg the first environmental justice
bill in South Carolina, House Bill 3933.
A national comprehensive environmental policy should foster
the unique relationship between environmental protection, human
health and economic well being. At the same time, such policies
should assure that its benefits and risks accrue to all people.
I see I am out of time.
[The prepared statement of Mr. Mitchell follows:]
Statement of Harold Mitchell, South Carolina State Legislature
Good afternoon Chairman Clinton, Senator Craig, ranking member of
this subcommittee and all the subcommittee members. I would like to
thank you for this historic opportunity to talk about environmental
justice in Spartanburg, SC.
I questioned the sickness and mortality in my neighborhood of the
two Superfunds sites and six Brownfields sites, the Arkwright/Forest
Park neighborhoods in Spartanburg, South Carolina. The property line of
the home I grew up in was directly adjacent to the abandoned IMC Global
Fertilizer facility, the world's largest producer and supplier of
concentrated phosphates and potash fertilizers. This facility closed in
1986, and was given a ``Clean Closure.'' We found later that toxic
furnace dust from Georgia was sent to this facility for disposal and
was used as filler for the fertilizer. The facility never passed its
stack emissions test but did take responsibility for replacing metal
products in the neighborhood, including my parents' car and re-painted
other automobiles.
Located in the rear of the property was the old City of Spartanburg
landfill, which according to the State Department of Health and
Environmental Control, did not exist. Later, we found that 99.9 percent
of all medical, auto, and industrial waste was dumped here. To the left
and rear, was an operating chemical facility which was supposed to have
been developed into an apartment complex. Due to no zoning in
Spartanburg County, it was sold to a developer who turned it into a
chemical storage facility and later it became what is now a full blown
operating chemical plant.
I am convinced that the early deaths of my sister and father were
connected to the inhalation of the contaminated dust that came from the
plant.
In 1998, I formed an organization called Regenesis to address the
environmental conditions in 3 neighborhoods surrounding the fertilizer
plant. These abandoned sites became incubators for illegal activity.
The social and economic deterioration of this community and chronic
health problems were overwhelming. U.S. EPA Region 4 conducted a
community workshop to look at the clean up and re-use of the
contaminated sites. This is where I saw the opportunity to regain what
was lost during the urban renewal programs when 60 black-owned
businesses left the Southside. This was a pivotal point in the process
for our community because of earlier efforts in the environmental
justice movement that made sure communities became equal stakeholders
in the public participation process.
I attended my first NEJAC meeting here in Washington, and found
other impacted communities around the country with similar testimonies.
It was helpful, at this point, to hear the lessons learned, good and
bad, from other impacted communities across the country. And it was
then that I learned about the Executive Order 12898 on Environmental
Justice by President Clinton. The perception that the EO had teeth got
the attention of city and county officials. Your former colleague and
my former U.S. Senator, Earnest Hollings, gave us support on the Hill
which also grabbed the attention of local leaders. Like most
communities, funding is the greatest challenge we face, along with the
struggle to build capacity and sustainability in our organizations.
In 2000, U.S. EPA Region 4 awarded ReGenesis a $20,000 grant to
help build capacity and the community partnerships. This grant allowed
us to bring in city and county officials to look at additional grant
opportunities, such as the Superfund ReDevelopment Initiative and the
Brownfields Assessment Grant. After creating the vehicle everyone
wanted to stay away from now we were organizing regular meetings and
forums to address not only the environmental problems but also the
solutions for social and economic challenges we face. I traveled to
several meetings where other Federal agencies were addressing
environmental justice issues. I began to see initiatives that could fit
our project in Spartanburg from U.S. HHS with the Community Health
Center Initiative; U.S. HUD, U.S. Federal Highway, U.S. Department of
Justice, and U.S. Department of Energy. This is where U.S. EPA's
presence in the Federal Inter-Agency Work Group on Environmental
Justice paved the way for leveraging additional funding and building
the partnerships necessary to address our project.
All of these efforts have resulted in Regenesis leveraging over
$167 million since 1998. We are addressing--through citizen
involvement--housing, public safety/crime, transportation, job-training
and creation, community health, and entrepreneurial opportunities in
the Southside of Spartanburg and the project area--Arkwright/Forest
Park. Please see attached ReGenesis Leverage Report.
The 2007 S.C. Environmental Justice Law charges S.C. DHEC to study
and consider the practices of S.C. State agencies as they are related
to economic development and revitalization. This resolution will
provide the vehicle for communities, like my own, to investigate and
revitalize their blighted communities.
A national, comprehensive environmental policy should foster the
``unique relationship between environmental protection, human health,
and economic well-being. At the same time, such policy will assure that
its benefits--and risks--accrue to all people.''
It provides an opportunity for reuse of Superfund and Brownfields
sites. For example, in Charleston, a $26 million cleanup investment by
SCE&G and the City of Charleston resulted in recouping their investment
within 5 years and now they generate over $9 million a year in net
profit.''
Developing Successful Strategies for Integrating Environmental
Justice and Sustainable Communities.--Regenesis revitalization efforts
have become recognized as a national model and its Revitalization
Project and celebrated its progress with a full day of activities on
June 14. This included the premiering of the U.S. Environmental
Protection Agency documentary, The Power of Partnerships, the
Collaborative Problem Solving Model at Work in Spartanburg.
__________
Responses by Harold Mitchell to Additional Questions from
Senator Clinton
Question 1a. ReGenesis first began receiving funding during the
Clinton administration, and, in no small part due to your dedication to
this issue, managed to leverage that funding into a series of grants
from multiple agencies that helped to ensure sustainable environmental
and economic opportunity in the area. However, there have been
significant cutbacks in grant funding since the Clinton administration,
as part of an overall de-emphasis of environmental justice by the Bush
EPA.
Response. ReGenesis begin to receive funding during the Clinton
administration, and we have been able to leverage that initial funding
to a total in excess of $168 million. If we were just starting out in
2007, I believe that it would be much more difficult to ensure
sustainable environmental and economic opportunity in Spartanburg for
those in greatest need. The opportunities to receive and leverage
federal funding have become more difficult today.
Question 1b. If ReGenesis were starting out today, do you think you
would have the same opportunities to receive and leverage federal grant
funding?
Response. No, it is unlikely that we could have leveraged the
amount of funding we have under the Bush administration because the
initial programs that built the program foundation are no longer in
place. The intact Interagency Working Group on Environmental Justice
(IWG), the National Environmental Justice Advisory Council (NEJAC) and
the U.S. EPA Office of Environmental Justice (OEJ) under the Clinton
administration provided communication, coordination, and a clear line
of authority and advocacy. Due to funding cuts, this has not been in
operation under the Bush administration. This has had the cumulative
effect of a regression in environmental progress, e.g., Brownfields
clean ups, and an increase in the conditions that result in the
disparities of low income, black communities. The focus has been on the
perimeter of the problem and not the Community Small Grants, the IWG,
the NEJAC, and other programs that helped build capacity for the people
affected by the contamination. This was the foundation that the Clinton
EPA was built upon.
Question 2. What changes can we make at the Federal level to
improve the ability of communities to work with their governments and
reduce and eliminate contaminates that adversely impact health?
Response. ReGenesis supports the need for Federal environmental
justice legislation. Such legislation would improve the environmental
conditions of our communities, make government more responsive, and
serve to empower communities to work with public and private sector
partners. I believe that federal legislation should include elements
such as the following:
Collaborative Problem Solving Environmental Justice (EJ)
Cooperative Agreements and EJ Small Grants for community-based
organizations.
Establishment of a State Program EJ Grants Program to
provide technical assistance to States in addressing the needs of
communities having EJ issues.
Establishment of a Federal Interagency Workgroup on EJ to
facilitate coordination and communication by Federal agencies on EJ
matters.
Establishment of a National Environmental Justice Advisory
Council to provide external stakeholder advice to EPA on EJ matters.
Require that all appropriate Federal agencies develop
strategies and action plans on how best to integrate EJ into Federal
programs, activities, and policies.
Senator Clinton. Thank you very much. We look forward to
getting more information about that, too, Representative
Mitchell.
Dr. Bullard.
STATEMENT OF ROBERT BULLARD, DIRECTOR, ENVIRONMENTAL JUSTICE
RESOURCE CENTER, CLARK ATLANTA UNIVERSITY
Mr. Bullard. Good afternoon, Madam Chairman. My name is
Robert Bullard. I direct the Environmental Justice Resource
Center at Clark Atlanta University in Atlanta, GA.
I, too, want to thank this subcommittee for holding this
historic hearing. For the past three decades, I have written
on, lectured on, and worked with communities around
environmental justice all across this country. I have seen too
many cases, enough to fuel at least a dozen books that I have
written. It has now been 13 years since President Clinton
signed Executive Order 12898. Communities still have not
achieved environmental justice.
We have heard the various studies that have been done, a
string of them by governmental agencies, the GAO, the Office of
Inspector General, showing that EPA has not over the last 13
years been able to integrate environmental justice into its
decisionmaking.
I think it is important that we understand that this is not
a game. This is not accidental. This is life and death. This
year represents the 20th anniversary of the landmark Toxic
Waste and Race Report that was produced by the United Church of
Christ. To celebrate that 20th anniversary, I was asked to
assemble a team of researchers to update that report and to do
a new study, and that is Toxic Waste and Race at Twenty. I am
one of the co-authors along with Dr. Beverly Wright of Dillard
University, Dr. Paul Mohai of the University of Michigan, and
Dr. Robin Saha from the University of Montana.
Toxic Waste and Race examined regional, State, national and
metropolitan disparities in the numbers, and some of the
numbers have been given already, 56 percent of the residents
living within a 2-mile radius of commercial hazardous waste
sites are people of color.
When you look at the clustering of commercial hazardous
waste facilities, that number increases to almost 70 percent of
the residents who are people of color living within a 2-mile
radius. This is not a southern phenomena, even though I wrote a
book called Dumping in Dixie. Nine out of the 10 EPA regions
have racial disparities in siting, and 40 of the 44 States, so
this is a national phenomenon.
In looking at the findings they are very disturbing, things
are getting worse. They are not getting better. Based on these
findings, I along with my co-authors and more than 100
environmental justice, civil rights, human rights, faith-based
and health organizations have submitted as part of this
testimony a letter of endorsement of the major findings of the
report and 10 recommendations.
The first recommendation is hold congressional hearings on
EPA response to contamination in the environmental justice
communities. I think this is important that this is the first
hearing in the Senate for this.
Pass and codify the environmental justice Executive order.
We need a law. We just can't depend on the whims of who is in
the White House. We need a law.
Provide a legislative fix for Title VI of the Civil Rights
Act of 1964, which was gutted by the Alexander v. Sandoval
decision of 2001.
Require assessments of cumulative pollution burdens in
facility permitting. Right now, if you get 1 facility, you can
get 10. There is nothing that deals with cumulative impacts
that EPA assesses.
Require safety buffers in facility permitting. We have
schools that are next to fence lines with some of the most
dangerous facilities. As we just heard, children are not little
adults.
Protect and enhance community and worker right-to-know. We
have seen strategies and attempts to gut, dismantle and weaken
TRI.
Enact legislation promoting clean production and waste
reduction.
Adopt green procurement policies and clean production tax
policies.
ReinState the Superfund. This is important.
Finally, establish a tax increment finance fund to promote
environmental justice-driven community development as it
relates to Brownfields redevelopment.
Getting Government to respond to environmental and health
concerns of low-income and people of color communities has been
an uphill struggle. The time to act is now. Our communities
cannot wait another 20 years. Achieving environmental justice
for all makes us a much healthier, stronger and more secure
Nation as a whole. It is the right thing to do.
Thank you, Madam Chairman. I will answer questions.
[The prepared statement of Mr. Bullard follows:]
Statement of Robert Bullard, Ph.D. Director of the Environmental
Justice Resource Center, Clark Atlanta University
Good afternoon. My name is Robert D. Bullard and I direct the
Environmental Justice Resource Center at Clark Atlanta University in
Atlanta, GA. Madam Chairwoman and members of the Subcommittee, I want
to first thank you for the opportunity to appear before you today at
this historic Senate Subcommittee Hearing on Environmental Justice and
to share with you some of the recent research and policy work my
colleagues and I have completed on environmental justice, toxic wastes
and race, and government response to the needs of low-income and people
of color populations. For the past three decades I have researched,
worked on, lectured about, testifies at public hearings and in court,
and written on environmental justice policy issues in the United States
and abroad. I have traveled in hundreds of communities from New York to
Alaska and seen with my own eyes and heard with my own ears enough
environmental justice ``horror'' stories to fill at a dozen of my
books.\1\
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\1\ See R.D. Bullard, Invisible Houston: The Black Experience in
Boom and Bust. College Station: Texas A&M University Press, 1987; R.D.
Bullard, Dumping in Dixie: Race, Class and Environmental. Quality. 3rd
ed., Boulder: Westview Press, (1990, 1994), 2000; R.D. Bullard, (ed.),
Confronting Environmental Racism: Voices From the Grassroots. Boston:
South End Press, 1993; R.D. Bullard, (ed.), Bullard, R.D., J. Eugene
Grigsby, III, and Charles Lee, Residential Apartheid: The American
Legacy. UCLA Center for African American Studies, 1994; Unequal
Protection: Environmental Justice and Communities of Color. 2nd ed. San
Francisco: Sierra Club Books, 1996; R.D. Bullard and G.S. Johnson,
eds., Just Transportation: Dismantling Race and Class Barriers to
Mobility. Gabriola Island, BC: New Society Publishers, 1997; R.D.
Bullard, G.S. Johnson, and A.O. Torres, eds., Sprawl City: Race,
Politics and Planning in Atlanta, Washington, DC: Island Press, 2000;
J. Agyeman, Robert D. Bullard, and Bob Evans, Just Sustainabilities:
Development in an Unequal World. MIT Press, 2003; R.D. Bullard, G.S.
Johnson, and A.O. Torres, Highway Robbery: Transportation Racism and
New Routes to Equity. Boston: South End Press, 2004; R.D. Bullard,
(ed.), The Quest for Environmental Justice: Human Rights and the
Politics of Pollution. Sierra Club Books, 2006; R.D. Bullard, Growing
Smarter: Achieving Livable Communities, Environmental Justice and
Regional Equity. MIT Press, 2007; and R.D. Bullard, The Black
Metropolis in the Twenty-First Century: Race, Power, and the Politics
of Place. Rowman & Littlefield, 2007.
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The environmental justice movement has come a long way from its
humble beginnings in rural and mostly African American Warren County,
North Carolina.\2\ It has now been twenty-five years since the
controversial 1982 decision to dump 40,000 cubic yards (or 60,000 tons)
of soil in the mostly black county. The soil was contaminated with the
highly toxic polychlorinated biphenyls (PCB) illegally dumped along 210
miles of roadways in fourteen North Carolina counties in 1978. The
roadways were cleaned up in 1982.
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\2\ See R.D. Bullard, Dumping in Dixie: Race, Class and
Environmental Quality. Boulder: Westview Press, 2000.
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Warren County won the dubious prize of hosting the toxic dump. The
landfill decision became the shot heard around the world and put
environmental racism on the map and the catalyst for mass mobilization
against environmental injustice. Over 500 protesters were arrested,
marking the first time any Americans had been jailed protesting the
placement of a waste facility.
After waiting more than two decades for justice, victory finally
came to the residents of predominately black Warren County when
detoxification work ended the latter part of December 2003. State and
federal sources spent $18 million to detoxify contaminated soil stored
at the PCB landfill.
After mounting scientific evidence and much prodding from
environmental justice advocates, the EPA created the Office of
Environmental Justice in 1992 and produced its own study, Environmental
Equity: Reducing Risks for All Communities, a report that finally
acknowledging the fact that low-income and minority populations
shouldered greater environmental health risks than others.\3\
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\3\ United States Environmental Protection Agency. Release of
Environmental Equity Report. Press Release. 1992, http://www.epa.gov/
history/topics/justice/01.htm. (accessed 1/16/2007).
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In 1992, staff writers from the National Law Journal uncovered
glaring inequities in the way the federal EPA enforces its laws. The
authors found a ``racial divide in the way the U.S. government cleans
up toxic waste sites and punishes polluters. White communities see
faster action, better results and stiffer penalties than communities
where blacks, Hispanics and other minorities live. This unequal
protection often occurs whether the community is wealthy or poor.''\4\
These findings suggest that unequal protection is placing communities
of color at special risk and that their residents who are
differentially impacted by industrial pollution can also expect
different treatment from the government.
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\4\ Marianne Lavelle and Marcia Coyle, ``Unequal Protection,''
National Law Journal, September 21, 1992, pp. S1-S2.
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On February 11, 1994, environmental justice reached the White House
when President Clinton signed Executive Order 12898, ``Federal Actions
to Address Environmental Justice in Minority Populations and Low-Income
Populations.''\5\ 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, regulations and
policies. Fair treatment means that no group of people, including
racial, ethnic, or socio-economic groups should bear a disproportionate
share of the negative environmental consequences resulting from
industrial, municipal, and commercial operations or the execution of
federal, state, local, and tribal programs and policies.''\6\
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\5\ Presidential Memorandum (William J. Clinton) Accompanying
Executive Order 12898 (February 11, 1994).
\6\ U.S. Environmental Protection Agency. Guidance for
Incorporating Environmental Justice in EPA's NEPA Compliance Analysis.
Washington, DC: USEPA, 1998.
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Numerous studies have documented that people of color in the United
States are disproportionately impacted by environmental hazards in
their homes, neighborhoods, and workplace. A 1999 Institute of Medicine
study, Toward Environmental Justice: Research, Education, and Health
Policy Needs, concluded that low-income and people of color communities
are exposed to higher levels of pollution than the rest of the nation
and that these same populations experience certain diseases in greater
number than more affluent white communities.\7\
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\7\ Institute of Medicine, Toward Environmental Justice: Research,
Education, and Health Policy Needs. Washington, DC: National Academy of
Sciences, 1999, Chapter 1.
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A 2000 study by The Dallas Morning News and the University of
Texas-Dallas found that 870,000 of the 1.9 million (46 percent) housing
units for the poor, mostly minorities, sit within about a mile of
factories that reported toxic emissions to the U.S. Environmental
Protection Agency.\8\
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\8\ See ``Study: Public Housing is Too Often Located Near Toxic
Sites.'' Dallas Morning News, October 3, 2000.
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Even schools are not safe from environmental assaults. A 2001
Center for Health, Environment, and Justice study, Poisoned Schools:
Invisible Threats, Visible Action, reports that more than 600,000
students in Massachusetts, New York, New Jersey, Michigan and
California were attending nearly 1,200 public schools, mostly populated
by low-income and people of color students, that are located within a
half mile of federal Superfund or state-identified contaminated
sites.\9\
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\9\ See the Center for Health, Environment, and Justice, Poisoned
Schools report (2001) found at http://www.bredl.org/press/2001/
poisoned--schools.htm.
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epa response to environmental justice needs
Thirteen years after the signing of Executive Order 12898,
environmental justice still eludes many communities across this nation.
In its 2003 report, Not in My Backyard: Executive order and Title VI as
Tools for Achieving Environmental Justice, the U.S. Commission on Civil
Rights (USCCR) concluded that ``Minority and low-income communities are
most often exposed to multiple pollutants and from multiple sources. .
. . There is no presumption of adverse health risk from multiple
exposures, and no policy on cumulative risk assessment that considers
the roles of social, economic and behavioral factors when assessing
risk.''\10\
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\10\ U.S. Commission on Civil Rights, Not in My Backyard: Executive
Order 12898 and Title VI as Tools for Achieving Environmental Justice.
Washington, DC: U.S. Commission on Civil Rights, 2003, p. 27.
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A March 2004 EPA Inspector General report, EPA Needs to Conduct
Environmental Justice Reviews of Its Programs, Policies, and
Activities, concluded that the agency ``has not developed a clear
vision or a comprehensive strategic plan, and has not established
values, goals, expectations, and performance measurements'' for
integrating environmental justice into its day-to-day operations.\11\
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\11\ U.S. EPA Office of Inspector General, EPA Needs to
Consistently Implement the Intent of the Executive Order on
Environmental Justice. Washington, DC: GAO, September 18, 2006.
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In July 2005, the U.S. Government Accountability Office (GAO)
criticized EPA for its handling of environmental justice issues when
drafting clean air rules. That same month, EPA proposed major changes
to its Environmental Justice Strategic Plan. This proposal outraged EJ
leaders from coast to coast. The agency's Environmental Justice
Strategic Plan was described as a ``giant step backward.''\12\ The
changes would clearly allow EPA to shirk its responsibility for
addressing environmental justice problems in minority populations and
low-income populations and divert resources away from implementing
Executive Order 12898.
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\12\ Robert D. Bullard. EPA's Draft Environmental Justice Strategic
Plan--A ``Giant Step Backward.'' (7/15/2005). Environmental Justice
Resource Center, http://www.ejrc.cau.edu/BullardDraftEJStrat.html.
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The agency then attacked community right-to-know by announcing
plans to modify the Toxic Release Inventory (TRI) program--widely
credited with reducing toxic chemical releases by 65 percent.\13\ In
December 2006, the EPA announced final rules that undermine this
critical program by eliminating detailed reports from more than 5,000
facilities that release up to 2,000 pounds of chemicals every year; and
eliminating detailed reports from nearly 2,000 facilities that manage
up to 500 pounds of chemicals known to pose some of the worst threats
to human health, including lead and mercury.
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\13\ OMB Watch. Changing the ``Right to Know'' to the Right to
Guess: EPA's Plans to Modify Toxics Release Inventory Reporting. (No
Date), http://www.ombwatch.org/tricenter/TRIpress.html.
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In September 2006, EPA's Inspector General issued another report
chastising the agency for falling to ``conduct environmental justice
reviews of its programs, policies, and activities.''\14\
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\14\ Office of the Inspector General, Evaluation Report: EPA Needs
to Conduct Environmental Justice Reviews of Its Programs, Policies, and
Activities. Washington, DC: US Environmental Protection Agency. Report
No. 2006-P-00034, 2006, p. 7.
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And in June 2007, the U.S. General Accountability Office (GAO)
issued yet another report, Hurricane Katrina: EPA's Current and Future
Environmental Protection Efforts Could Be Enhanced by Addressing Issues
and Challenges Faced on the Gulf Coast, that criticized EPA's handling
of contamination in post-Katrina New Orleans and the Gulf Coast.\15\
The GAO found inadequate monitoring for asbestos around demolition and
renovation sites. Additionally, the GAO investigation uncovered that
``key'' information released to the public about environmental
contamination was neither timely nor adequate, and in some cases,
easily misinterpreted to the public's detriment.''
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\15\ U.S. General Accountability Office, Hurricane Katrina: EPA's
Current and Future Environmental Protection Efforts Could Be Enhanced
by Addressing Issues and Challenges Faced on the Gulf Coast.
Washington, DC: GAO Report to Congressional committees, June 2007.
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In December 2005, the Associated Press released results from its
study, More Blacks Live with Pollution, showing African Americans are
79 percent more likely than whites to live in neighborhoods where
industrial pollution is suspected of posing the greatest health
danger.\16\ Using EPA's own data and government scientists, the AP
study found blacks in 19 states were more than twice as likely as
whites to live in neighborhoods with high pollution; a similar pattern
was discovered for Hispanics in 12 states and Asians in seven states.
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\16\ Pace, David. 2005. ``AP: More Blacks Live with Pollution,''
ABC News, December 13, 2005, available at http://abcnews.go.com/Health/
wireStory?id=1403682&CMP=OTC-RSSFeeds0312.
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The AP analyzed the health risk posed by industrial air pollution
using toxic chemical air releases reported by factories to calculate a
health risk score for each square kilometer of the United States. The
scores can be used to compare risks from long-term exposure to factory
pollution from one area to another. The scores are based on the amount
of toxic pollution released by each factory, the path the pollution
takes as it spreads through the air, the level of danger to humans
posed by each different chemical released, and the number of males and
females of different ages who live in the exposure paths.
toxic wastes and race at twenty
This year represents the twentieth anniversary of Toxic Wastes and
Race. To commemorate this milestone, the United Church of Christ (UCC)
asked me to assemble a team of researchers to complete a new study,
Toxic Wastes and Race at Twenty 1987-2007.\17\ The Executive Summary of
the new study was released at the 2007 American Association for the
Advancement of Science (AAAS) in San Francisco. I have attached a copy
of the summary to my testimony. The full report was released in March
2007 at the National Press Club in Washington, DC. In addition to
myself, the principal authors of new UCC report are Professors Paul
Mohai (University of Michigan), Beverly Wright (Dillard University of
New Orleans), and Robin Saha (University of Montana).
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\17\ R.D. Bullard, P. Mohai, R. Saha, and B. Wright, Toxic Wastes
and Race at Twenty: 1987-2007. Cleveland, OH: United Church of Christ
Witness & Justice Ministries, March 2007. The full report is available
at http://www.ejrc.cau.edu/TWART-light.pdf.
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Toxic Wastes and Race at Twenty is the first national-level study
to employ 2000 Census data and distance-based methods to a current
database of commercial hazardous waste facilities to assess the extent
of racial and socioeconomic disparities in facility locations.
Disparities are examined by region and state, and separate analyses are
conducted for metropolitan areas, where most hazardous waste facilities
are located.
The new report also includes two detailed case studies: one on
environmental cleanup in post-Katrina New Orleans and the other on
toxic contamination in the mostly African American Eno Road community
in Dickson, Tennessee.
study findings
People of color make up the majority (56 percent) of those
living in neighborhoods within 3 kilometers (1.8 miles) of the nation's
commercial hazardous waste facilities, nearly double the percentage in
areas beyond 3 kilometers (30 percent).
People of color make up a much larger (over two-thirds)
majority (69 percent) in neighborhoods with clustered facilities.
Percentages of African Americans, Hispanics/Latinos, and
Asians/Pacific Islanders in host neighborhoods are 1.7, 2.3, and 1.8
times greater in host neighborhoods than non-host areas (20 percent vs.
12 percent, 27 percent vs. 12 percent, and 6.7 percent vs. 3.6
percent), respectively.
9 out of 10 EPA regions have racial disparities in the
location of hazardous waste sites.
40 of 44 states (90 percent) with hazardous waste
facilities have disproportionately high percentages of people of color
in host neighborhoods--on average about two times greater than the
percentages in non-host areas (44 percent vs. 23 percent).
Host neighborhoods in an overwhelming majority of the 44
states with hazardous waste sites have disproportionately high
percentages of Hispanics (35 states), African Americans (38 states),
and Asians/Pacific Islanders (27 states).
Host neighborhoods of 105 of 149 metropolitan areas with
hazardous waste sites (70 percent) have disproportionately high
percentages of people of color, and 46 of these metro areas (31
percent) have majority people of color host neighborhoods.
study conclusions
Environmental injustice in people of color communities is
as much or more prevalent today than two decades ago.
Racial and socioeconomic disparities in the location of
the nation's hazardous waste facilities are geographically widespread
throughout the country.
People of color are concentrated in neighborhoods and
communities with the greatest number of facilities; and people of color
in 2007 are more concentrated in areas with commercial hazardous sites
than in 1987.
Race continues to be a significant independent predictor
of commercial hazardous waste facility locations when socioeconomic and
other non-racial factors are taken into account.
toxic cases on the fenceline
Clearly, low-income and communities of continue to be
disproportionately and adversely impact by environmental toxins.
Residents in fenceline communities comprise a special needs population
that deserves special attention. Toxic chemical assaults are not new
for many Americans who are forced to live adjacent to and often on the
fence line with chemical industries that spew their poisons into the
air, water, and ground.\18\ When (not if) chemical accidents occur,
government and industry officials often instruct the fence-line
community residents to ``shelter in place.'' In reality, locked doors
and closed windows do not block the chemical assault on the nearby
communities, nor do they remove the cause of the anxiety and fear of
the unknown health problems that may not show up for decades.
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\18\ Robert D. Bullard, The Quest for Environmental Justice: Human
Rights and the Politics of Pollution. San Francisco: Sierra club Books,
2005.
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tce contamination in dickson, tennessee
This case is about slow government response to toxic contamination
in a mostly black enclave on Eno Road in Dickson, Tennessee, small town
located about 35 miles west of Nashville. Harry Holt and his family
owned 150-acres farm in Dickson County's segregated African American
Eno Road community for more than five generations. The Holt family
wells were poisoned by the leaky Dickson County Landfill, located just
54 feet from their property line.
According to government records, Scovill-Shrader and several other
local industries, buried drums of industrial waste solvents at ``open
dump'' landfill site in 1968.\19\ Contaminated waste material was even
cleaned up from other areas in this mostly white county and trucked to
the landfill in the mostly black Eno Road community. For example,
Ebbtide Corporation (Winner Boats) removed material from an on-site
dump and transferred it to the Dickson County Landfill for
disposal.\20\ The company disposed of drummed wastes every week for 3
to 4 years.
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\19\ Tetra Tech EM, Inc., Dickson County Landfill Reassessment
Report. A Report Prepared for the U.S. EPA, Region IV. Atlanta: March
4, 2004.
\20\ Ibid., p. 17.
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Scovill-Shrader Automotive manufacturing plant buried drums of
industrial waste solvents at the landfill. The company's wastes were
known to have contained acetone and paint thinner.\21\ A 1991 EPA Site
Inspection Report notes that soil containing benzene, toluene,
ethylbenzene, xylenes, and petroleum hydrocarbons from underground
storage tank cleanups were brought to the landfill. In 1988, the
Dickson County Landfill accepted 275 to 300 cubic yards of solid waste
from the CSX White Bluff derailment cleanup.\22\
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\21\ Ibid., p. 31.
\22\ Ibid., p. 17.
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Government officials first learned of the trichloroethylene (TCE)
contamination in the Holt family wells as far back as 1988--but assured
the black family their wells were safe. TCE is a suspected carcinogen.
The wells were not safe. Three generations of Holts are now sick after
drinking contaminated well water up until 2000. The family was placed
on the city tap water system--after drinking TCE-contaminated water for
twelve years-from 1988 to 2000. In 2003, the Holt family sued the city,
county, and Schrader. The case is still pending.
poisoned wells in an east texas oilfield
A 2007 New York Times article, ``Texas Lawsuit Includes a Mix of
Race and Water,'' detailed a Texas family who is struggling for
environmental in the East Texas oilfields.\23\ Frank and Earnestene
Roberson and their relatives who live on County Road 329, a
historically black enclave in the oilfields of DeBerry, Texas, wells
were poisoned by a deep injection well for saltwater wastes from
drilling operations that began around 1980. The Roberson family is the
descendants of a black settler, George Adams, who bought 40 acres and a
mule there in 1911. Oil was discovered in the area in the 1920s.
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\23\ Ralph Blumenthal, ``Texas Lawsuit Includes a Mix of Race and
Water,'' The New York Times, July 9, 2006.
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The Roberson family first complained to the Texas Railroad
Commission back in 1987--the same year the UCC Toxic Wastes and Race
issued its report. Nearly a decade later, in 1996, the railroad
commission took samples and found ``no contamination in the Robersons'
household water supply that can be attributed to oilfield sources.''
Because of the contamination, the family had to drive 23 miles to a
Wal-Mart near Shreveport for clean water.
In 2003, the railroad commission tests found benzene, barium,
arsenic, cadmium, lead and mercury in the families 'wells at
concentrations exceeding primary drinking water standards. Still, no
government cleanup actions were taken to protect the Robersons and
other black families in the community.
In June 2006, the Roberson family filed suit in federal court,
accusing the Texas Railroad Commission, which regulates the state's oil
and gas industry, of failing to enforce safety regulations and of
``intentionally giving citizens false information based on their race
and economic status.'' The Robersons point to the slow government
response to the toxic contamination in their mostly black community and
the rapid clean-up response last summer by the railroad commission in
Manvel, a largely white suburb of Houston.
incineration of vx gas wastewater in port arthur, texas.
The incineration of the deadly nerve agent VX waste water in Port
Arthur, Texas typifies the environmental justice challenges facing
African Americans. About 60 percent of the city's population is African
American. Veolia Environmental Services of Lombard, Ill. won a $49
million contract from the U.S. Army to incinerate 1.8 million gallons
of caustic VX hydrolysate waste water near Port Arthur's Carver Terrace
housing project. Army and city officials did not announce the project
until the deal was sealed. Residents in New Jersey and Ohio fought off
plans to incinerate the waste there. It is ironic that the first batch
of VX hydrolysate was incinerated in Port Arthur on April 22, 2007--
Earth Day.
Jim Crow segregation forced Port Arthur's African Americans to the
west part of town. There the city built the Carver Terrace housing
development for low income blacks. Port Arthur is encircled by major
refineries and chemical plants operated by such companies as Motiva,
Chevron Phillips, Valero and BASF. Residents whose homes are located at
the fence line are riddled with cancer, asthma, and liver and kidney
disease that some blame on the pollution from nearby industries.
The Carver Terrace housing project abuts the Motiva oil refinery.
Jefferson County, where Port Arthur is located, is home to one of the
country's largest chemical-industrial complexes and is consistently
ranked among the top 10 percent of America's dirtiest counties. In June
2007, the U.S. Army temporarily suspended the shipments of a former
nerve gas agent, now in the form of caustic wastewater, from Indiana
while the federal court in Terre Haute, Ind. sets a date for a
preliminary injunction hearing on the matter.\24\
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\24\ Mary Meux, ``Veolia to Temporarily Stop Receiving VX
Wastewater,'' Port Arthur News, June 18, 2007.
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PCB Contamination in Anniston, Alabama
The Sweet Valley/Cobb Town neighborhood in Anniston, Alabama
typifies the toxic chemical assault on a fenceline community. The
mostly black neighborhood was contaminated by Solutia, Inc., a spin-off
company of the giant Monsanto chemical company. The Sweet Valley/Cobb
Town neighborhood residents organized themselves into a task force and
filed a class action lawsuit against Monsanto for contaminating their
community with polychlorinated biphenyls (PCBs). Monsanto manufactured
PCBs from 1927 thru 1972 for use as insulation in electrical equipment
including transformers. The EPA banned PCB production in the late 1970s
amid questions of health risks.
In April 2001, a group of 1,500 Sweet Valley/Cobb Town plaintiffs
reached a $42.8 million out-of-court settlement with Monsanto in the
federal District Court of the Northern District of Alabama. In August
2003, a $700 million settlement of two separate trials, involving more
than 20,000 plaintiffs, was reached with Monsanto and Solutia.\25\
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\25\ Jessica Star, ``Sweeter Home Alabama: Alabama PCB Suits End in
$700 Million Settlement,'' Anniston Star, August 21, 2003.
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policy recommendations
The Toxic Wastes and Race at Twenty report gives more than three
dozen recommendations for action at the Congressional, state and local
levels to help eliminate the disparities. The report also makes
recommendations for nongovernmental agencies and the commercial
hazardous waste industry. Base on these findings, I along with my
colleagues and more than a hundred environmental justice, civil rights
and human rights, and health allies are calling for steps to reverse
this downward spiral. The sign-on letter and the organizations are also
attached to my testimony. We recommend the following policy actions:
1. Hold Congressional Hearings on EPA Response to Contamination in
EJ Communities. We urge the U.S. Congress to hold hearings on the U.S.
Environmental Protection Agency's (EPA's) response to toxic
contamination in EJ communities, including post-Katrina New Orleans,
the Dickson County (Tennessee) Landfill water contamination problem and
similar problems throughout the United States.
2. Pass a National Environmental Justice Act Codifying the
Environmental Justice Executive Order 12898. Executive Order 12898
``Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations'' provides significant impetus
to advance environmental justice at the federal level and in the
states. Congress should codify Executive Order 12898 into law. Congress
will thereby establish an unequivocal legal mandate and impose federal
responsibility in ways that advance equal protection under law in
communities of color and low-income communities.
3. Provide a Legislative ``Fix'' for Title VI of the Civil Rights
Act of 1964. Work toward a legislative ``fix'' of Title VI of the Civil
Rights Act of 1964 that was gutted by the 2001 Alexander v. Sandoval
U.S. Supreme Court decision that requires intent, rather than disparate
impact, to prove discrimination. Congress should act to reestablish
that there is a private right of action for disparate impact
discrimination under Title VI.
4. Require Assessments of Cumulative Pollution Burdens in Facility
Permitting. EPA should require assessments of multiple, cumulative and
synergistic exposures, unique exposure pathways, and impacts to
sensitive populations in issuing environmental permits and regulations.
5. Require Safety Buffers in Facility Permitting. The EPA (states
and local governments too) should adopt site location standards
requiring a safe distance between a residential population and an
industrial facility. It should also require locally administered
Fenceline Community Performance Bonds to provide for the recovery of
residents impacted by chemical accidents.
6. Protect and Enhance Community and Worker Right-to-Know.
Reinstate the reporting of emissions and lower reporting thresholds to
the Toxic Release Inventory (TRI) database on an annual basis to
protect communities' right to know.
7. Enact Legislation Promoting Clean Production and Waste
Reduction. State and local governments can show leadership in reducing
the demand for products produced using unsustainable technologies that
harm human health and the environment. Government must use its buying
power and tax dollars ethically by supporting clean production systems.
8. Adopt Green Procurement Policies and Clean Production Tax
Policies. Require industry to use clean production technologies and
support necessary R&D for toxic use reduction and closed loop
production systems. Create incentives and buy-back programs to achieve
full recovery, reuse and recycling of waste and product design that
enhances waste material recovery and reduction.
9. Reinstate the Superfund Tax. Congress should act immediately to
re-instate the Superfund Tax, re-examine the National Priorities List
(NPL) hazardous site ranking system and reinvigorate Federal Relocation
Policy in communities of color to move those communities that are
directly in harms way.
10. Establish Tax Increment Finance (TIP) Funds to Promote
Environmental Justice-Driven Community Development. Environmental
justice organizations should become involved in redevelopment processes
in their neighborhoods to integrate brownfields priorities into long-
range neighborhood redevelopment plans. This will allow for the use of
Tax Increment Finance funds for cleanup and redevelopment of
brownfields sites expressly for community-determined uses.
Getting government to respond to the environmental and health
concerns of low-income and people of color communities has been an
uphill struggle long before the world witnessed the disastrous
Hurricane Katrina response nearly two years ago. The time to act is
now. Our communities cannot wait another twenty years. Achieving
environmental justice for all makes us a much healthier, stronger, and
more secure nation as a whole.
______
Responses by Robert Bullard to Additional Questions from
Senator Inhofe
Question 1. Recognizing that past decisions to locate a facility in
a particular community occurred long before significant number of low
income and minorities resided there, do you think that it is misleading
to cite racism and discrimination for the resulting low property values
and the housing migration pattern in the community?
Response. The most recent evidence shows that the
disproportionately high percentages of minorities and low-income
populations were present at the time that the commercial hazardous
waste facilities were sited. In a 2001 study published in the Journal
of Urban Affairs, researchers Pastor, Sadd, and Hipp confirm this
phenomenon in Los Angeles County. Likewise in a 2005 study published in
the journal, Social Problems, researchers Saha and Mohai report that in
Michigan during the last 30 years commercial hazardous waste facilities
were sited in neighborhood that were located disproportionately poor
and disproportionately non-white at the time of siting.
Earlier studies by researchers Oakes, Anderton, and Anderson (1996)
and Been and Gupta (1997) also addressed this question but the results
of this research were inclusive. The difference between these latter
studies and those of Pastor et al. (2001) and Saha and Mohai (2005) is
that the earlier studies employed methods which have since been shown
to not adequately count the residential population living in close
proximity to hazardous sites. This has been shown in recent studies
published in the journals Demography and Social Problems by Mohai and
Saha (2006, 2007).
Although the question of which came first, the hazardous waste
facilities or the minority and low-income populations, was not
addressed in Toxic Waste and Race at Twenty, at the February 2007
meeting of the American Association for the Advancement of Science
(AAAS), Mohai and Saha presented a paper providing evidence of the
demographic composition at or near the time of siting for the
neighborhoods of the 413 facilities examined in Toxic Waste and Race at
Twenty. This research found that nationally commercial hazardous waste
facilities sited since 1965 have been sited in neighborhood that were
disproportionately minority at the time of siting.
References:
Been, Vicki, and Frances Gupta. 1997. ``Coming to the Nuisance or
Going to the Barrios? A Longitudinal Analysis of Environmental Justice
Claims.'' Ecology Law Quarterly 24: 1-56.
Mohai, Paul, and Robin Saha. 2006. ``Reassessing Racial and
Socioeconomic Disparities in Environmental Justice Research.''
Demography 43(2): 383-399.
Mohai, Paul, and Robin Saha. 2007. ``Racial Inequality in the
Distribution of Hazardous Waste: A National-Level Reassessment.''
Social Problems 54(3): 343-370.
Mohai, Paul and Robin Saha. 2007. ``Which Came First, People or
Pollution? How Race and Socioeconomic Status Affect Environmental
Justice.'' Paper Presented at the Annual Meeting of the American
Association for the Advancement of Science (AAAS) held in San
Francisco, CA (February 17).
Oakes, John Michael, Douglas L. Anderton, and Andy B. Anderson.
1996. ``A Longitudinal Analysis of Environmental Equity in Communities
with Hazardous Waste Facilities.'' Social Science Research 25: 125-148.
Pastor, Manuel, Jim Sadd, and John Hipp. 2001. ``Which Came First?
Toxic Facilities, Minority Move-In, and Environmental Justice.''
Journal of Urban Affairs 23: 1-21.
Saha, Robin and Paul Mohai. 2005. ``Historical Context and
Hazardous Waste Facility Siting: Understand Temporal Trends in
Michigan.'' Social Problems 52(4): 618-48.
Question 2. Title VI of the Civil Rights Act prohibits intentional
discrimination in the siting, permitting, and enforcement process. Do
you think the federal government should go a step further in using
federal antidiscrimination law as a means of addressing complex
environmental problems, where no discriminatory intent exists?
Response. I expect EPA to enforce the law. EPA should enforce Title
VI of the Civil Rights Act in a way that is consistent with the recent
court decisions, including the 2001 Alexander v. Sandoval U.S. Supreme
Court decision.
Question 3. In your testimony, you recommended that industry
increase industrial safety buffers. Have you consulted with local
government about this since they would be the ones to implement this
recommendation? Are you suggesting that EPA take over land use
planning?
Response. Land use planning is a job primarily for local, regional
and state jurisdictions. I am not suggesting EPA take over land use
planning. In my three decades of work on environmental justice cases, I
have spoken with a number of local governments, industry, and residents
whose homes and in some instances schools are fenceline with industrial
facilities. Generally, residents look to their local government to
address land use problems.
Nevertheless, some federal government decisions and guidances
impact local and regional land use from zoning regulations to the
construction of transportation systems (highways vs public transit and
other alternatives to driving) that respond to a region's needs to
comply with the federal Clean Air Act. For example the January 2001 EPA
report, EPA Guidance: Improving Air Quality Through Land use
Activities, supports this point. It reads:
``In recent years, many of EPA's stakeholders have explored
using land use activities as strategies for improving air
quality. These stakeholders, including state and local planning
agencies, have suggested that EPA improve guidance on how to
recognize land use strategies in the air quality planning
process that result in improvements in local and regional air
quality'' (p. 1).
EPA further explains the purpose of the guidance. The guidance``is
intended to inform state and local governments that land use activities
which can be shown (through appropriate modeling and quantification) to
have beneficial impacts on air quality, may help them meet their air
quality goals'' (p. 2).
The report also speaks to the role of various agencies in land use
decision making.``Local, regional and state government agencies all
have a role a role in land use decision-making. In addition,
individuals, community organizations, and developers play important
roles in the process'' (p. 5).
The EPA report adds: ``While the federal government does not have
jurisdiction over land use decision making, federal statues and funding
policies do influence local land use decision. Grant programs that
assist stats in redeveloping abandoned brownfields, earmarking federal
funding assistance for `empowerment zones' in older urban areas, and
partnership between federal agencies and state and local governments to
test land use planning tools are some examples.'' (p. 8)
The EPA report described the role of the federal government in the
following passage:
``Although federal agencies are not involved in land use
decisions, federal statues such as environmental laws, tax
codes, federal mortgage lending policies, and transportation
infrastructure policies can influence local land use planning.
Examples of such policies include assessment requirements in
the National Environmental Policy Act (NEPA), transportation
planning requirements found in U.S. Department of
Transportation regulations, and specification on property use
included in the EPA's Superfund regulations.'' (p. 7)
The Federal Aviation Administration (FAA) rules also impact certain
local land uses, such as the location of solid waste disposal
facilities, near airports. Any solid waste disposal facility (i.e.
sanitary landfill) which is located within 1,500 meters (about 5,000
feet) of all runways planned to be used by piston-powered aircraft, or
within 3,000 meters (about 10,000 feet) of all runways planned to be
used by turbojets is considered by the Federal Aviation Administration
(FAA) to be an incompatible land use because of the potential for
conflicts between bird habitat and low-flying aircraft. Refer to FAA
Advisory Circular 150/5200.33 ``Hazardous Wildlife Attractants on or
Near Airports'' and FAA Order 5200.5,``FAA Guidance Concerning Sanitary
Landfills on or Near Airports.''
Some regional authorities have taken action regarding buffer zones.
The South Coast Air Quality Management District in Los Angeles
(SCAQMD), the air pollution control agency for all of Orange County and
the urban portions of Los Angeles, Riverside and San Bernardino
counties, requires buffer zones for such sensitive receptors as schools
to protect against the risks posed by toxic emissions from high impact
sources. The SCAQMD guidance provides suggested policies that school
districts can use to prevent or reduce potential air pollution impacts
and protect the health of their students and staff. The objective of
the guidance document is to facilitate stronger collaboration between
school districts and the SCAQMD to reduce exposure to source-specific
air pollution impacts. See SCAQMD, Air Quality Issues in School Site
Selection: Guidance Document, June 2005 (revised 2007).
Question 4. In your testimony you quote the U.S. Commission on
Civil Rights study on tools for achieving environmental justice. Can
you comment on a study where out of the eight commissioners, 4 refused
to sign the final draft stating ``the report's recommendations were
based on a misguided application of federal antidiscrimination laws to
complex environmental problems and the that the report failed to meet
the standards of balance and academic rigor that the taxpayers expect
of an independent federal agency and that the study should not be
permitted to bear the seal of government approval.'' Please comment.
Response. The U.S. Commission on Civil Rights study, Not in My
Backyard: Executive Order 12898 and Title VI as Tools for Achieving
Environmental Justice, was published as a federal USCCR report in 2003.
The study is currently posted at http://www.usccr.gov/pubs/envjust/
ej0104.pdf as a USCCR report. The transmittal letter in the report
indicates that it was sent forward to the President, Speaker of the
House, and the President of the Senate. The 2003 USCCR report is also
cited in a number of scholarly books. It is quoted and cited on pages
13 and 14 of the EPA Office of Inspector General EPA Needs to
Consistently Implement the Intent of the Executive Order on
Environmental Justice report (March 2004).
Question 5. Quoted often is the United Church of Christ
continuation study ``Toxics Waste and Race at Twenty'' of which Dr.
Bullard and Wright are principle authors, which states that the
universe of commercial hazardous waste disposal facilities in the
United States is 413, yet when you go to the EPA's compliance data
base, ECHO, and look for operating facilities under hazardous waste
disposal, you only get 203 facilities including both commercial and non
commercial sites, which is less than half the facilities the University
of Michigan study claims. Can you please explain this conflicting data?
Response. The EPA's ECHO database is an environmental enforcement
and compliance database. According to the EPA website, ``ECHO reflects
state/local and Federal compliance and enforcement records under those
statutes that have been entered into EPA's national databases'' (see:
http://www.epa-echo.gov/echo/about--data.html#data--quality). This Web
site indicates that searches of the database will return a list of
facilities that have been inspected or evaluated for enforcement
actions. It appears that ECHO does not contain all treatment, storage,
and disposal facilities, but just those that have been inspected and
inspection records entered into the database, primarily by state
environmental agencies.
Several databases were used in Toxic Waste and Race at Twenty to
identify commercial hazardous waste facilities in the United States
that were operating in 1999 (the year that corresponds to year the 2000
Census data that were employed were gathered).: EPA's Biennial Report
System (BRS); EPA's Resource Conservation and Recovery Information
System (RCRIS); and the Environmental Services Directory (ESD), a
private industry listing. The EPA's Envirofacts Data Warehouse, which
is a compilation of multiple EPA databases, was also consulted. A
facility was included in our study if it met all the following
criteria: (1) it was a private, non-governmental business, (2)
designated in 1999 as a hazardous waste Treatment, Storage and Disposal
Facility (TSDF) under the Resource Conservation and Recovery Act (RCRA)
and (3) operated as a commercial facility in 1999, i.e., received off-
site wastes from another entity for pay.
Toxic Waste and Race at Twenty used sources similar to those used
in the other studies. It is notable that the original 1987 UCC report
and a 1994 update by Benjamin Goldman and Laura Fitton identified 415
and 530 facilities, respectively. In their 1997 national study
(referenced in our response to question 1), Vicki Been and Francis
Gupta (and in another 1995 study by Vicki Been published in the Journal
of Land Use and Law) used a universe of 608 facilities. The 1996 study
by University of Massachusetts researchers (by Oakes et al, also
referenced in our response to question 1) identified 476 facilities,
though in earlier UMass studies identified 454 facilities (Anderson et
al 1994 and Anderton et al. 1994). Thus, the number of facilities in
Toxic Wastes and Race at Twenty has been in line with the other
studies. More details about the methods used to identify commercial
hazardous waste facilities in the U.S. operating in 1999 are provided
in the Methods Appendix of Chapter 4 of Toxic Wastes and Race at Twenty
(see, e.g., p. 68).
References:
Anderson, Andy B., Douglas L. Anderton, and John Michael Oakes,
1994. ``Environmental Equity: Evaluating TSDF Siting Over the Past Two
Decades.'' Waste Age 25(7): 83-100.
Anderton, Douglas L., Andy B. Anderson, John Michael Oakes, and
Michael R. Fraser. 1994. ``Environmental Equity: The Demographics of
Dumping.'' Demography 31(2): 229-47.
Goldman, Benjamin A. and Laura Fitton. 1994. Toxic Waste and Race
Revisited: An Update of the 1987 Report on the Racial and Socioeconomic
Characteristics of Communities With Hazardous Waste Sites. Washington
D.C.: Center for Policy Alternative.
Question 6. In the study, Toxic Wastes and Race at Twenty, you
mentioned that racial and socioeconomic disparities in the location of
hazardous waste facilities remain after 20 years. Wouldn't this have to
be the case since RCRA hazardous waste facilities are required to
maintain post-closure permits at least 30 years after they close? How
many new hazardous waste facilities have opened in the past 20 years?
What was the makeup of the communities at the new facilities?
Response. Toxic Waste and Race at Twenty did not examine facilities
that had closure or post-closure permit status. It analyzed facilities
that reported to be operating in 1999. Although Toxic Wastes and Race
at Twenty did separately examine facilities sited in the last twenty
years, at the February 2007 AAAS meeting, Mohai and Saha presented of
research of theirs showing that 84 commercial hazardous waste
facilities, or 20 percent of the 413 facilities examined in Toxic
Wastes and Race at Twenty, were sited since 1985. Mohai and Saha also
provided evidence that host neighborhoods of these facilities had
disproportionately high percentages of African American, Hispanics and
Asian Americans/Pacific Islanders around the time of siting: these
minorities comprised approximately 37 percent of population compared to
24 percent in areas without facilities.
In fact, Mohai and Saha examined the racial makeup of hazardous
waste host neighborhoods around the time of siting for facilities sited
from 1966 to 1975, from 1976 to 1985, and after 1985. Their research
showed that neighborhoods had already become disproportionately
minority by the time the facilities for facilities sited in all three
time periods, though the racial disparities at the time of siting were
greatest for those sited from 1976-1985. These national finding are
also consistent with those reported by Pastor, Sadd, and Hipp (2001)
and Mohai and Saha (2005).
Senator Clinton. Thank you very much, Director Bullard.
Mr. Steinberg.
STATEMENT OF MICHAEL W. STEINBERG, BUSINESS NETWORK FOR
ENVIRONMENTAL HEALTH
Mr. Steinberg. Good afternoon. On behalf of the Business
Network for Environmental Justice, I am pleased to be here. The
Business Network is committed to working with EPA, the States,
our host communities and other stakeholders to address
environmental justice concerns.
Our members are strongly committed to the nondiscrimination
mandates of Title VI of the Civil Rights Act of 1964, as well
as Executive Order 12898. We also seek to be responsible
community members in the communities where we operate.
My brief remarks this afternoon are focused on EPA's tool
kit for addressing complaints of environmental justice issued
in November, 2004. For the reasons I will go into briefly
today, we believe that the tool kit is seriously flawed and
should not be used until EPA acts to correct its many
deficiencies.
I will focus here on three main problems with EPA's tool
kit. I want to say at the outset that each of these was
specifically raised in written comments filed with EPA when the
tool kit was first proposed. Unfortunately, EPA never responded
to our comments.
First, the tool kit sets up a confrontational approach to
environmental justice, instead of a collaborative, problem-
solving approach. The tool kit includes some of the worst
features of EPA's highly controversial guidance on Title IV
from back in 2000, guidance which Congress actually de-funded
some years ago.
Like the Title VI guidance, the tool kit sets up a reactive
approach that focuses on whatever facility is currently seeking
a permit. Complaints may be filed at any time, even on issues
that were never raised during the permitting process, or issues
that were raised and resolved by the permitting agency. EPA
acts on complaints that it receives, but it may do so without
ever seeking the input of the facility affected by the
complaints. So on and so on. The process is confrontational
when it should be collaborative.
Our second point is that the tool kit uses 51 indicators of
environmental injustice, many of which don't appear to indicate
environmental injustice at all. I will give just a few
examples: climate, cultural dynamics and percentage of
community that uses cigarettes, alcohol, and illegal drugs.
Our point is that EPA can't just put out a list of 51
indicators and tell staff to go figure out where environmental
injustice is occurring. EPA needs to explain where these
indicators came from and how they should be used in making
decisions. Unfortunately, EPA has never done that.
Third and last, the tool kit mistakenly equates
disproportionate impacts with environmental injustice. The tool
kit seems to suggest that EPA will seek to eliminate all
disproportionate impacts. We think this is probably not the
right goal, because the law requires equal treatment, not equal
results. Let me explain.
The Business Network emphatically believes that all people
should be treated equally under our laws, including
environmental laws, without discrimination based on race, color
or national origin. This means that environmental standard-
setting, environmental permitting, and environmental
enforcement should all be neutral and nondiscriminatory.
It does not mean that persons can or should be guaranteed
equal environmental results. For one thing, it is impossible to
place identical facilities equally distant from all people in
all communities. Even identical facilities would cause unequal
exposures in different locations and different circumstances.
So differences in exposure are inevitable and they are not
necessarily the same thing as environmental injustice.
So the key point is that differences do exist. There will
always be some differences. What EPA's staff really needs is a
way to distinguish between differences that are the result of
unlawful discrimination and differences that are not. On this
basic point, the tool kit provides no useful guidance.
In closing, we believe that EPA's tool kit is seriously
flawed and should not be used until EPA acts to address these
deficiencies.
Thank you and I will be pleased to answer questions.
[The prepared statement of Mr. Steinberg follows:]
Statement of Michael W. Steinberg on Behalf of the Business Network for
Environmental Justice
executive summary
EPA's Environmental Justice ``Toolkit.'' In November of 2004, EPA
issued its Toolkit for Assessing Potential Allegations of Environmental
Injustice. The Toolkit was meant to provide EPA's Environmental Justice
Coordinators with a systematic approach for evaluating complaints of
alleged environmental injustice.
Unfortunately, EPA's Toolkit has many serious shortcomings that
limit its usefulness. These include:
Confrontation instead of collaboration. Rather than encouraging
collaborative approaches to problem-solving in affected communities,
the Toolkit embodies a confrontational approach similar to EPA's highly
controversial guidance, issued in 2000, under Title VI of the Civil
Rights Act of 1964.
Uncritical acceptance of complaints. Using an elaborate
``hypothetical example,'' the Toolkit suggests that EPA's EJ
Coordinators should view the facts from the perspective of citizens who
complain, and should pay little heed to the views of state and local
government officials, or to those of business and industry
stakeholders. EPA's ``hypothetical example,'' with its ``charismatic''
citizen leaders and its furtive, secretive facility owner, is nothing
short of disgraceful.
Unexplained and subjective indicators of environmental injustice.
The Toolkit uses 51 different indicators, many of which have no
apparent connection to environmental injustice. Examples include:
``climate,'' ``cultural dynamics,'' ``percent of the population that is
literate,'' ``percent of the population with access to public
transportation and services,'' and ``percent of community that uses
regulated (cigarettes, alcohol) and unregulated (drugs) substances.''
Equating all disproportionate impacts with environmental injustice.
The Toolkit mistakenly equates all disproportionate impacts with
environmental injustice. But the law requires equal treatment, not
equal results. Moreover, as a practical matter, equal results cannot be
achieved in a free society.
Lack of meaningful public comment. The Business Network for
Environmental Justice (``BNEJ'') filed detailed comments with EPA when
the Toolkit was proposed in November of 2003. Yet EPA never responded
to those comments. EPA issued the Toolkit in final form without
addressing the issues raised by the BNEJ.
statement
I. Introduction
The Business Network for Environmental Justice (``BNEJ'') is a
voluntary organization of businesses, corporations, industry trade
associations, industry service providers and business groups interested
in environmental justice issues. Formed in 1995, the BNEJ believes all
people should be treated fairly under all laws, including environmental
laws, without discrimination based on race, color, or national origin.
We support open and informed dialogue with citizens about environmental
decisions that affect local communities. We also support continued
sound scientific research into factors affecting human health and the
environment, and the use of scientifically sound risk assessments in
evaluating and prioritizing health and environmental risks.
The BNEJ's statement today focuses on EPA's Toolkit for Assessing
Potential Allegations of Environmental Injustice (the ``Toolkit''),
issued in November of 2004. We believe the Toolkit fails to provide a
useful framework for assessing allegations of environmental injustice.
Rather than encouraging collaborative approaches to problem-solving in
affected communities, the Toolkit embodies a confrontational approach
that bypasses state environmental regulators and affected industrial
facilities. In many respects, EPA's Toolkit outlines an approach
similar to that found in EPA's highly controversial proposed
investigation guidance, issued in 2000 under Title VI of the Civil
Rights Act of 1964.
Given our serious concerns with the Toolkit, the BNEJ submitted
detailed written comments to EPA when the Toolkit was proposed in
November of 2003. Unfortunately, EPA never responded to the BNEJ's
comments, but simply issued the Toolkit in final form without
addressing any of the issues raised by the BNEJ. Thus, it is especially
appropriate for the Subcommittee to examine the Toolkit as part of its
consideration of EPA's environmental justice programs.
II. The Toolkit Sends EPA's Environmental Justice Coordinators Down the
Path of Confrontation, Rather than Collaboration
EPA's target audience for the Toolkit is ``the Environmental
Justice Coordinators at EPA Headquarters and Regional Offices who are
directly involved in environmental justice initiatives and are the
front-line in addressing allegations of environmental injustice.''
Toolkit at 2. The stated objective of the Toolkit is to provide the EJ
Coordinators with both
``a conceptual and substantive framework for understanding
the Agency's environmental justice program''; and
``a systematic approach with reference tools that can be
used . . . to assess and respond to potential allegations of
environmental injustice . . . .''
Toolkit at 1. The BNEJ agrees that it would be beneficial to
provide these tools to the Agency's EJ Coordinators. Unfortunately, the
Toolkit falls well short of the mark. Specifically, the Toolkit
embodies a confrontational approach to potential environmental justice
problems, rather than the collaborative problem-solving approach that
is far more likely to succeed.
A. The EJ Coordinators Should Serve Primarily as
Facilitators and Problem Solvers.
In order to address potential environmental justice issues most
effectively, EPA's EJ Coordinators should seek to serve as facilitators
and problem solvers, rather than fact-finders. By promoting
collaborative discussions among state and local government, business
and industry, and communities, the EJ Coordinators are in the best
position to help achieve ``win-win'' solutions.
This means that the EJ Coordinators should focus on identifying
potential solutions to the various problems they encounter, rather than
on studying those problems. To help the EJ Coordinators do their jobs,
they might benefit from some technical assistance in (1) understanding
the nature of the various complaints they may receive, and (2) setting
priorities among those complaints. But the Toolkit does not provide
that assistance. Instead, as shown below, it departs from the
collaborative problem-solving model and reflects a more confrontational
approach to environmental justice issues.
B. The Toolkit Departs from the Collaborative Problem-
Solving Model
The approach taken in the Toolkit is curiously out of touch with
some of the best and most current thinking--both within EPA and
elsewhere--on the collaborative problem-solving model. Consider the
work of the National Environmental Justice Advisory Council
(``NEJAC''), the advisory committee chartered and overseen by the
Office of Environmental Justice (``OEJ''). In the past several years,
the NEJAC has released a series of major advisory reports intended to
guide EPA policy on environmental justice issues. These reports embrace
a constructive problem-solving approach that contrasts sharply with the
adversarial, fragmented approach advocated in the Toolkit.
For example, in its seminal study of the potential to advance
environmental justice through pollution prevention, the NEJAC in its
consensus chapter advocated a move ``toward a multi-stakeholder
collaborative model to advance environmental justice through pollution
prevention.'' The NEJAC specifically advised that: A community-driven
multi-stakeholder model would feature the common goal of a healthy
local environment and highlight the need to share responsibility for
achieving that goal. A community-driven model would take a broad look
at environmental concerns in the community, identify the most effective
ways to improve health, and utilize the potential of collaboration and
mobilizing local resources to make progress in improving the health
status of local residents. A community-driven collaborative model would
acknowledge the importance of sharing information and establishing a
level playing field for all participants. This kind of collaborative
model can help build sustainable community capacity to understand and
improve the environment.
National Environmental Justice Advisory Council, Advancing
Environmental Justice through Pollution Prevention 21 (June 2003)
(emphasis supplied).
The approach that underpins the NEJAC pollution prevention report
is not an aberration, but is an approach that has been endorsed by
EPA's Office of Environmental Justice in numerous other settings. It is
the OEJ, after all, that chairs the federal Interagency Working Group
that has gained such acclaim for its piloting and institutionalization
of the collaborative model. See, e.g., Charles Lee, ``Collaborative
Models to Achieve Environmental Justice and Healthy Communities,''
Human Rights (ABA), Volume 30, Issue 4 (Fall 2003). See also National
Environmental Policy Commission, Final Report to the Congressional
Black Caucus at 10 (consensus recommendations) (Medical University of
South Carolina September 26, 2003).
The effectiveness of the collaborative approach was well
articulated in another recent report prepared by EPA's Office of
Policy, Economics and Innovation, which summarized:
Multi-stakeholder collaboration can act as a transformative
mechanism for enabling communities and associated stakeholders to
constructively address complex and long-standing issues concerning
environmental and public health hazards, strained or nonexistent
relations with government agencies and other institutions, and economic
decline.
Office of Policy, Economics, and Innovation, Towards an
Environmental Justice Collaborative Model, p. 6 (EPA/100-R-03-001
January 2003), www.epa.gov/evaluate.
The National Association of Manufacturers, a founding member of the
BNEJ, was an active and enthusiastic participant in the NEJAC pollution
prevention report quoted above. The BNEJ membership is, frankly,
dismayed to see EPA's Office of Environmental Justice encourage its EJ
Coordinators to turn away from the collaborative problem-solving model
and to focus instead on a confrontational approach that--as we show
below--pits one ``team,'' consisting of EPA's EJ Coordinators and the
community activists, against another ``team'' made up of state and
local government officials and the business community.
C. The Toolkit Outlines a Process Similar to EPA's Highly Controversial
Title VI Guidance.
Not only is the Toolkit not premised upon a collaborative process,
but it actually outlines a process similar to EPA's highly
controversial proposed guidance on Title VI investigations, issued in
2000. The BNEJ commented extensively on that proposed guidance. In
particular, we emphasized that the proposed Title VI Guidance adopts a
reactive strategy that promotes uncertainty for all involved. Instead
of defining clear standards about which facilities and operations will
be allowed in which communities, [it] encourages ad hoc challenges to
proposed or existing environmental permits. The results are: (1)
affected communities and other environmental justice advocates are
always reacting to specific projects, rather than proactively
establishing clear standards to protect their communities; (2) the
momentum of an existing or even proposed facility can be difficult to
stop; (3) state permitting agencies and facility owners/operators face
substantial uncertainty about whether a proposed activity will be found
to have an impermissible disparate impact . . . and (4) a facility
owner/operator can invest substantial amounts in a particular facility
(including an established, long-permitted facility) and/or permit
application only to have it unpredictably investigated and rejected. .
. .
August 28, 2000 BNEJ Comments at 4-5, quoting Craig Arnold, Land
Use Regulation and Environmental Justice, 30 Env'tl L. Rptr. (ELI)
10395, 10397-98 (June 2000) (emphasis supplied).
The Toolkit, in turn, shares many of these same defects. We mention
below some of the more glaring flaws in the Toolkit:
1. Complaints May Be Raised By Anyone At Any Time, With or Without
Evidence.--A basic concern with the Toolkit is its assumption that
anyone may raise a complaint of environmental injustice at any time and
in any manner, with or without any supportive evidence. This seems to
invite ad hoc challenges to virtually any regulatory or permitting
decision, even after the final rule or permit is issued. This in turn
means that there will be no predictability and no finality in the
regulatory and permitting processes.
Apparently complaints of environmental injustice need not meet any
particular threshold of significance in order to warrant a screening-
level assessment by EPA. The complaints need not even be made in
writing. Moreover, these complaints can be made even after previous
complaints of environmental injustice--based upon the same fact
pattern--have been made, reviewed, and found to lack merit.
What is more, the Toolkit does not even require the complaining
parties to exhaust their administrative remedies with state and local
government agencies. This is a very serious flaw, because the
community, the regulators, and the permittee(s) all benefit when these
issues are pursued to the greatest extent possible during the
regulatory or permitting processes.
In fact, requiring exhaustion would help in two ways. First, if the
complaining party achieves its objectives through the regulatory or
permit process, then there is no need to file a complaint of alleged
environmental injustice. Second, if the complaining party does not
achieve its objectives because the regulatory or permitting agency
considers and rejects the arguments being advance, then the complaining
party may well reconsider the merit of filing a complaint with EPA.
Moreover, even if a complaint is eventually filed, exhaustion helps
insure that EPA will have readily at hand a well-developed factual
record on which to base its decision-making. The regulatory or
permitting agency likely will not be required to gather new data, as
the issue(s) will already have been aired. Additionally, the community,
the agency, and the permittee(s) would all benefit from early awareness
of the issues underlying the complaint, rather than being surprised
when new issues are raised in a complaint filed with EPA months after
the regulatory or permit decision at issue.
2. EPA Defines the ``Affected Community'' and then Selects a
``Reference Community'' for Comparison.--A key step in analyzing
potential disproportionate adverse impacts is to identify, and
determine the characteristics, of the affected community, which then
provides a basis for comparison to an appropriate reference community.
The results of the analysis will hinge on whether the affected
population differs significantly from the comparison population.
Unfortunately, the Toolkit fails to clarify how EPA will approach this
vital task.
The Toolkit seems to envision using proximity to a pollution source
as a proxy for actual exposure to pollution. This suggests that EPA
will draw circles of various radii around the source(s) and then assume
that the population within the circles is somehow ``affected'' by air
emissions or other impacts. This approach leaves the community, the
regulatory agency, and the permittee completely unable to predict the
outcome of the analysis, because they cannot predict what the
``affected community'' will be. They have no way of knowing how large
or how small the circles should be or will be. Nor do they have any way
of telling how accurately any circles can reflect the realities of
exposure, given that emissions are rarely distributed in circular
patterns. There can be neither predictability nor certainty to EPA's
investigations when no one knows in advance whether EPA will rely on
proximity approaches and, if so, how EPA will determine the size of the
circles.
Similar problems arise when EPA selects a reference community for
comparison purposes. There is no ``control'' reference group for
comparison with the affected community that precisely matches its
demographic composition and that lacks the presence of the facility of
concern. No theoretical standard exists with which to determine what
demographic reference population is the most ``appropriate.'' A
reference community thus must be selected based on arbitrary choices.
These choices may include demographic groups located within a greater
distance, or within a larger jurisdiction, or within a ``comparable''
jurisdiction in another location.
The inherently arbitrary selection of a reference community has
significant consequences, because the racial and ethnic composition of
communities is not uniform. Consequently, it will be a rare event that
any particular community will contain the same demographic composition
as the jurisdictions that surround it. ``Generally, population
variables are not 'well-mixed': they are not randomly distributed in
groups and clusters . . . .''\1\ Therefore, if proximity alone is used
to define the ``affected community,'' we should expect to find on a
fairly routine basis statistically significant disparate impacts
between smaller ``affected community'' jurisdictions and larger
``reference community'' jurisdictions. As explained below in Section
IV, these disparate impacts should not be equated with environmental
injustice.
---------------------------------------------------------------------------
\1\ Leslie Kish, Survey Sampling 163 (1965).
---------------------------------------------------------------------------
In sum, EPA's Toolkit fails to explain how the Environmental
Justice Coordinators are to make the all-important comparison between
the ``affected'' community and the ``reference'' community. Without
clarity on that basic point, no one can ever know in advance whether
EPA will decide that any particular situation involves ``environmental
injustice.''
3. EPA Sets the Bar Too Low on Data Quality.--EPA's Toolkit
indicates a preference for valid and reliable data, but also a
willingness to use other data--data that are not valid and/or not
reliable--in cases where good data are unavailable. This approaches
disserves the community, the regulatory agency, and the permittee(s) by
allowing decisions to be made on the basis of information or analytic
methods that may not be sufficient to justify the conclusions drawn
from the available data, or that may not present an accurate picture of
the actual situation.
This problem is most readily apparent in EPA's discussion of the
causation aspect of its analysis. The issue here is individual or
aggregate causation: Does the facility, either alone or in combination
with other sources, actually cause a disparate adverse impact?
To EPA's credit, the Toolkit acknowledges the difficulty of
establishing causation in many situations. Toolkit at 69. But EPA does
not explain how it will ensure that any proxy for an actual exposure
that is evaluated is the cause of a discriminatory disparate impact.
For example, EPA states that it will consider as an ``indicator''
of environmental injustice ``the number of environmentally regulated
facilities within a community'' and ``the length of time'' they have
been in operation. Toolkit at 31-32. In other words, EPA will look at
potential exposure scenarios and make various assumptions in order to
use this information in support of overall findings about adverse
impacts. But the use or storage of pollutants cannot be equated with
actual releases or actual exposure. It would be highly inappropriate
for EPA to evaluate the specifics of such use and storage in order to
predict the likelihood of possible future releases. See Fertilizer
Institute v. United States EPA, 935 F.2d 1303 (D.C. Cir. 1991) (even
CERCLA's very broad definition of ``release'' does not include
storage). This kind of prediction should not be considered to support a
complaint of environmental injustice.
The point here is not that EPA must always have current pinpoint
emissions monitoring data in order to draw any conclusions about
releases and exposures from a facility. Estimates of emissions may be
entirely appropriate where actual data are unavailable. However, actual
releases and actual exposures, not potential releases, should be the
focus of any adverse impact determination.
Finally, despite EPA's stated preference for valid and reliable
data, some of the databases and other potential sources discussed in
the Toolkit fall short of the mark. TRI reporting data, for example,
are widely recognized as having built-in limitations due to the ``one
size fits all'' rules that govern the way facilities must calculate or
estimate their own TRI data. The CERCLIS database maintained by the
Superfund program is also known to have varying data quality among the
EPA Regional offices. It may not be possible to specify in advance
which data sources will and will not be considered in all cases. EPA
should recognize, however, that data from some of the most common
databases may well be unsuitable for use in assessing complaints
because they are neither valid nor reliable.
4. EPA May Not Involve the Permittee in the Assessment.--EPA should
recognize that the permittee typically has a strong and legitimate
interest in any government activity relating to its facility. The issue
need not be viewed solely in terms of whether a permit amounts to a
legally protected property interest. Instead, it can be viewed in terms
of ensuring that all persons with an interest in the issues are
informed and afforded a reasonable opportunity to submit any
information they believe may be useful.
The permittee will likely be in possession of the most up-to-date
information about actual facility emissions, available pollution-
control technologies, the cost of installing them and their technical
practicability. Clearly, there is a role for the permittee(s) in
assessing any complaint of environmental injustice, and EPA should
recognize such a role.
The permittee's perspective may be particularly crucial in cases
where a regulatory benchmark, rather than a risk level, is used to
assess the facility's emissions. Regulatory limits on emissions are
often established through a lengthy process that considers various
margins of safety, impacts on sensitive sub-populations and other
complexities. In the Select Steel case, for example, one critical fact
was that the National Ambient Air Quality Standards were established to
protect human health with an adequate margin of safety. The permittee
will often have a unique appreciation of issues such as these from
having participated in the standard-setting process. To leave the
permittee uninvolved is to risk the loss of this potentially vital
information.
Finally, not notifying the permittee of the complaint is simply not
being fair to a stakeholder with a strong and legitimate interest in
the issues. Permittees may be investing substantial amounts in
facilities that may never be allowed to operate, and they obviously
need to know that their permits are potentially at risk.
5. EPA May Pressure the State Agency to Take Action Against the
Permittee Even If its Facility Has Little Impact on Overall Pollution
Levels.--Despite EPA's frequent acknowledgment that a single permitted
facility is rarely the sole cause of an disparate adverse impact, there
is no mention in the Toolkit of how the remedy for such an impact
should be distributed among the various sources that contribute to it.
For all that appears, the complaining party could simply focus on
the facility that received the most recent permit (or permit renewal)
and demand of that facility sufficient emissions reductions or offsets
to address any impacts of concern, even though the facility in question
contributed very little to those impacts in the first place. Indeed,
this is exactly how EPA proceeds in the ``hypothetical example'' it
presents in Appendix C to the Toolkit.
The BNEJ believes that EPA must commit itself strongly and
explicitly to a rule of proportionality--a facility that is a minor
part of the problem should not be expected to bear a major share of the
solution. This basic rule of proportionality is absent from the
Toolkit.
Focusing on the most recent permit, and attempting to hold that one
facility accountable for the impacts of many other sources, is
blatantly unfair and completely unworkable. What is more, expecting one
permittee to remedy or mitigate the cumulative adverse impacts of other
businesses, governmental sources, and the general public is also
unlawful. Again, the Toolkit simply fails to provide the EJ
Coordinators with a coherent framework for addressing this important
recurring issue.
6. EPA's Actions May Be Unreviewable.--Finally, the Toolkit fails
to provide any right of administrative appeal or judicial review of the
actions taken by EPA's EJ Coordinators in response to complaints of
environmental injustice. In the ``hypothetical example'' given in
Appendix C, for example, EPA decides that the permittee should pay for
an assessment of environmental justice issues and that the state should
deny the air quality permit. It is manifestly unfair for the EJ
Coordinators to make decisions of this magnitude in a vacuum, shielded
from review by anyone else. EPA should expressly acknowledge the
desirability of administrative and judicial review for all Agency
decisions in the area of environmental justice that significantly
affect the rights of any person. The Toolkit itself should also
acknowledge the presumption that such review is available.
D. EPA's ``Hypothetical Example'' Dramatically Illustrates the
Toolkit's Confrontational Approach.
The confrontational approach underlying the Toolkit is illustrated
most dramatically in EPA's ``hypothetical example'' of ``Census Tract
9999'' in Chestnut Heights County, which is Appendix C to the Toolkit.
Taken as a whole, Appendix C suggests that EPA's EJ Coordinators should
view the facts from the perspective of citizens who complain, and
should pay little attention to the views of state and local government
officials, or to those of business and industry stakeholders. The BNEJ
does not believe that this is how EPA's EJ coordinators actually
perform their work. Nor would this be a constructive approach for them
to begin using.
Among the many elements of EPA's ``hypothetical example'' that
illustrate the one-sided and confrontational approach are the
following:
No written complaint is ever filed by ``Citizens for
Environmental Justice (CEJ),'' but CEJ ``insists'' that EPA staff
accompany them on a walking tour of their small community, and EPA
readily agrees to do so (pp. C-1, C-3);
EPA observes what it describes as ``huge'' tractor
trailers, a ``mammoth'' landfill, abandoned buildings that ``on their
face'' indicate possible contamination, and a facility owner who
``immediately'' shuts his doors as soon as he sees an unfamiliar face
(p. C-1);
EPA never mentions the zoning or other approved land use
plan(s) for the community;
EPA quickly adopts the CEJ perspective that their
minority, low-income neighborhood is widely referred to as ``The
Pits,'' and EPA itself consistently uses that term, apparently as a
gesture of solidarity (p. C-1 and throughout);
EPA describes the President of CEJ as ``charismatic,'' in
contrast to the industrial facility owner who is described as behaving
in a highly suspicious manner (pp. C-1, C-2);
EPA echoes CEJ's claim that their neighborhood ``is
targeted by the decisionmakers'' because the residents are minority and
low-income, yet EPA apparently finds no evidence to support such a
claim (p. C-3);
EPA fails to mention the state permitting agency's
facially neutral permitting practices, or the fact that state law
typically requires permitting decisions to be based on technical
criteria, not on demographics;
After the walking tour, EPA's notes ``strongly indicate an
environmental justice situation,'' apparently because numerous
potential sources of pollution are located in a small community whose
residents are heavily minority and low-income (p. C-4);
EPA invites CEJ to send two representatives to help EPA
plan its screening-level assessment, but makes no effort to involve
either the owner of the proposed facility whose air quality permit
application is pending, or any of the other industrial stakeholders in
the community (p. C-5);
EPA decides that the reference community for comparison
purposes is the entire county (Chestnut Heights County), based solely
on the way in which CEJ has articulated its (verbal) complaint (pp. C-5
to C-6);
EPA meets repeatedly with CEJ and takes pains to insure
that the assessment plan, the conceptual model, etc., are acceptable to
CEJ, yet EPA fails to provide information to, or seek input from, any
of the industrial stakeholders (p. C-6);
EPA asks the state permitting agency to re-do its air
quality modeling for the proposed facility, this time ``assuming more
extreme weather conditions for the area than assumed previously,''
although there is no indication that the original assumptions were
inaccurate in any way or that the new ``more extreme'' assumptions are
more realistic (p. C-11);
Based on the ``more extreme'' modeling, EPA concludes that
the proposed facility could have adverse health effects on the
community ``given the possible existing levels of air contamination''
(p. C-13);
Although the state DEQ held a public hearing on CEJ's
concerns less than a month ago, and released extensive documentation on
its approach to the air quality permitting issues, EPA faults the DEQ
because the CEJ members were unable to read its documentation (pp. C-4,
C-11);
EPA expresses concern that ``the state DEQ might not deny
the [proposed facility's air quality] permit'' (C-14) (emphasis
supplied), even though the facility apparently meets all of the
technical standards for obtaining the requested air quality permit;
EPA then convinces the state DEQ ``that a more Refined
Assessment is needed'' and that ``the owners of the proposed facility
should contribute resources for the assessment'' (p. C-14); and
EPA also suggests to the state DEQ various ``mitigation
options that the state can discuss with the facility owners . . . or
consider for state actions . . . .'' (p. C-14).
In sum, EPA responds to CEJ's verbal complaint by devoting
substantial resources to a new investigation, viewing the facts in the
light most favorable to CEJ, second-guessing the findings of the state
regulatory agency, bypassing the views of the affected industrial
facility, and then pressuring the state agency to extract both a
financial contribution and also unspecified ``mitigation'' measures
from the facility owner. This is a textbook example of confrontation
and intrigue being pursued where collaborative problem-solving would
have achieved better results. Yet the Toolkit presents this case study
to the EJ Coordinators as an illustration of how they should perform
their official duties. For EPA to encourage this kind of conduct by its
employees is nothing short of disgraceful.
III. EPA Must Explain and Document the Toolkit's 51 Different EJ
``Indicators''
The Toolkit presents a total of 51 ``Environmental Justice
Indicators'' to be used by the EJ Coordinators in assessing potential
complaints. According to the Toolkit, EPA developed these 51 indicators
by ``adapt[ing]'' various indicators used by the Organization for
Economic Co-Operation and Development (OECD). Toolkit at 26. But upon
closer examination, it is clear that EPA has not fully explained, or
adequately documented, most of the 51 indicators it now seeks to use.
The OECD's most current published work in this area is entitled
``OECD Environmental Indicators--Towards Sustainable Development''
(2001). This publication includes indicators approved by the
Environment Ministers of the OECD member countries for use in
performing environmental assessments. In this 2001 publication, OECD
presents 34 such indicators, divided into 2 groups--environmental
indicators and socio-economic indicators.
EPA's Toolkit, on the other hand, presents a total of 51
indicators, divided into 4 groups--environmental, health, social, and
economic. According to the Toolkit, EPA has ``modified or supplemented
the OECD's indicators.'' Toolkit at 26.
But it appears that EPA has done much more than that. Of the 51
indicators presented in the Toolkit, very few are OECD indicators. Most
of the others--particularly those presented as ``health'' and
``social'' indicators--are not even loosely related to any of the
OECD's indicators. In other words, EPA created many of these indicators
on its own, without offering any explanation or documentation for them.
At a minimum, then, EPA must now independently explain and support
the manner in which it developed each of these 51 indicators, as well
as its rationale for proposing to use them in evaluating environmental
justice complaints. The Toolkit simply does not present this
explanation or this support.
Even without this explanation or support, many of the 51 indicators
in the Toolkit raise significant questions because on their face, they
do not appear to be indicative of either environmental problems or
environmental injustice. We address below just a few examples taken
from 3 of the 4 sub-groups in the Toolkit.
Climate is listed as an Environmental Indicator, even
though every community obviously has a climate and the presence of a
climate is not by itself an indicator of any environmental quality
issue or environmental justice issue;
Infant mortality rate is listed as a Health Indicator,
even though EPA acknowledges that this rate ``is sensitive to a variety
of community health factors . . . including nutrition, drug and alcohol
use, and disease status,'' Toolkit at 39-40, which may have nothing to
do with environmental quality or environmental justice issues;
Percent of the population that is literate in English or
other languages is listed as a Social Indicator, when the literacy rate
in and of itself is obviously not an indicator of either environmental
quality or environmental injustice;
Percent of the population with access to public
transportation and services is listed as a Social Indicator because
low-income persons may ``require public transportation to access urban
. . . amenities,'' Toolkit at 47, which on its face is not an indicator
of either environmental quality or environmental injustice;
Percent of community that uses regulated (cigarettes,
alcohol) and unregulated (drugs) substances is listed as a Social
Indicator because these substances can make users ``more susceptible to
other environmental hazards,'' Toolkit at 48, yet their use is a matter
of personal choice and respect for the law, not an indicator of
environmental quality or environmental injustice; and
Cultural dynamics is listed as a Social Indicator, without
any clear definition of what it means or how it can be measured, yet it
is not an indicator of environmental quality or environmental
injustice.
In sum, EPA has yet to explain (1) how it derived these 51
indicators from the OECD's drastically different set of 34
environmental indicators, or (2) how EPA's 51 Indicators can be
reliably measured and used in conducting assessments, or (3) most
fundamentally, why EPA believes these 51 indicators actually
``indicate'' the existence of environmental injustice. Until EPA
provides the essential explanation and documentation, the Toolkit
should not be used by EPA's EJ Coordinators.
IV. By Equating All Disproportionate Impacts with Environmental
Injustice, The Toolkit Promises Far More Than EPA Can Deliver
The final problem with the Toolkit is also the most fundamental: It
promises far more than EPA can deliver. Based on the term ``fair
treatment,'' as found in EPA's Mission Statement, the Toolkit seemingly
equates all disproportionate impacts with environmental injustice. See,
e.g., Toolkit at 71-72. This is not sound public policy, because EPA is
promising more than it can possibly deliver.
As noted earlier, the BNEJ emphatically believes all people should
be treated fairly under all laws, including environmental laws, without
discrimination based on race, color, or national origin. This means
that environmental standard-setting, permitting, and enforcement should
be free of any such discrimination.
But this does not mean that all persons can or should be guaranteed
equal environmental results. See, e.g., Alexander v. Choate, 469 U.S.
287, 304 (1985) (Congress sought to assure ``evenhanded treatment'' and
equal opportunity to participate in federally-funded programs, not to
guarantee ``equal results'' from such programs) (Rehabilitation Act);
Jersey Heights Neighborhood Ass'n v. Glendening, 174 F.3d 180, 194 (4th
Cir. 1999) (noting that, in the context of highway construction,
``equal benefits'' would mandate ``a twisting, turning roadway that
zigs and zags only to capture equally every ethnic subset of our
population,'' and rejecting ``equal benefits'' approach as an
``absurdity'') (Fair Housing Act).
As a practical matter, a guarantee of equal results would be
impossible to implement or enforce in a free society. Identical
facilities cannot be placed everywhere, and even identical facilities
cause unequal impacts in different locations for different populations.
Consequently, some individuals within the community and some
communities as a whole will inevitably face greater exposure than
others to any given facility. Differences in exposure are not the same
thing as environmental injustice. The key point is that differences do
exist, and so the EJ Coordinators must have some way to distinguish
between those differences that are significant and those that are not.
This point was clearly articulated by the Environmental Hearing
Board of the Commonwealth of Pennsylvania in an early phase of the
environmental justice litigation arising in Chester, Pennsylvania:
Life in organized society necessarily involves risks, burdens and
benefits. These all increase as society grows larger and more complex.
Ideally, they should be shared equally by all members of the society,
but that is rarely, if ever, possible. Transportation facilities cannot
be everywhere; some persons will be close to one, others will not.
Whether this is looked upon as benefit or burden will depend on the
outlook and interests of each person. Parks and recreational facilities
also cannot be in every neighborhood. Those not near to such a facility
may feel burdened by the distance while those adjacent to it may feel
burdened by the proximity. . . . The point is that all persons in
society have a mixture of risks, burdens and benefits in varying
proportions to other persons.
Chester Residents Concerned for Quality Living v. Commonwealth of
Pennsylvania, Environmental Hearing Board Docket No. 93-234-MR, slip
op. at 1518 (Oct. 20, 1993) (emphasis added).
Thus, the Toolkit should not suggest that all disproportionate
adverse impacts amount to ``environmental injustice'' that EPA will
strive to eliminate. Such an approach is not supported by EPA's legal
authorities, is not sound public policy, and is ultimately not a
realistic objective in a free society.
V. Conclusion
The BNEJ is committed to working with the EPA, states, our host
communities and other stakeholders on environmental justice concerns.
Our members are committed to the non-discrimination mandates of Title
VI of the Civil Rights Act of 1964 and Executive Order 12898, and they
seek to be responsible community members.
We believe that EPA's Toolkit is so severely flawed that it should
not be used by the EJ Coordinators until EPA takes action to address
these many deficiencies. We hope that this statement concerning EPA's
Toolkit will ultimately assist EPA in its efforts to develop better
tools for its EJ Coordinators.
______
Responses by Michael W. Steinberg to Additional Questions from
Senator Clinton
Question 1. Can you provide some history on the background of the
Business Network for Environmental Justice (BNEJ)? Under whose auspices
does the BNEJ function?
Response. The Business Network for Environmental Justice (BNEJ) was
formed in 1995. It is a voluntary organization of businesses,
corporations, industry trade associations, industry service providers
and business groups interested in environmental justice issues. The
BNEJ believes all people should be treated fairly under all laws,
including environmental laws, without discrimination based on race,
color or national origin. We support open and informed dialogue with
citizens about environmental decisions that affect local communities.
We also support continued sound scientific research into factors
affecting human health and the environment, and the use of
scientifically sound risk assessments in evaluating and prioritizing
health and environmental risks. As an unincorporated association, the
BNEJ functions under the auspices of the National Association of
Manufacturers (NAM).
Question 2. You are also a lawyer for a private firm, Morgan Lewis.
Is NAM your client in this matter? If not, who was billed for your time
testifying at this hearing?
Response. I represent the BNEJ in this matter, as opposed to NAM,
The BNEJ is billed directly for legal services provided by Morgan
Lewis, including my time testifying at this hearing.
Senator Clinton. Thank you.
Peggy Shepard, please.
STATEMENT OF PEGGY SHEPARD, EXECUTIVE DIRECTOR, WEST HARLEM
ENVIRONMENTAL ACTION
Ms. Shepard. Good afternoon, Madam Chair. Thank you for
this historic hearing and thank you for the effective work you
do for New Yorkers.
I am director of WE ACT for Environmental Justice, a 19-
year-old non-profit advocacy organization based in Harlem. We
work to build community power to improve environmental health
policy and protection in communities of color.
I have lived and worked for 22 years in Northern Manhattan,
a community of mostly African American and Latino residents,
with a median household income of $16,000. There are multiple
environmental exposures, a high rate of learning disabilities,
low birth weight, and excess mortality from asthma, cancer and
heart disease. This area has the highest asthma rates in the
Nation, and more broadly, Manhattan is a non-attainment area
for clean air standards and is ranked number on in cancer risk
from air toxics by the EPA.
In 1988, WE ACT was born out of community struggles around
the use of Northern Manhattan as the dumping ground for the
downtown elite. We began organizing around the operations of
the North River Sewage Plant, whose odors and emissions were
exacerbating respiratory disease. Then in 2000, WE ACT filed a
Title VI administrative complaint with Federal DOT against the
Metropolitan Transit Authority because Northern Manhattan
neighborhoods bear the disparate impact of hosting one-third of
the largest diesel bus fleet in the Nation. Of the six diesel
bus depots in Manhattan, five are in uptown communities.
So WE ACT began a process of inquiry that led to
collaborative research projects of the last 8 years with the
Columbia Mailman School of Public Health. In 1995, WE ACT and
Columbia were awarded an EPA community-university partnership
grant that allowed us to begin relationship building and
community identification of research needs.
In 1997, WE ACT was awarded a grant from the National
Institute of Environmental Health Sciences. They had a new
program called Environmental Justice Through Communication.
That program is now ending.
Now, through training to develop 200 environmental health
leaders and to educate youth as field technicians, WE ACT and
our academic partners have provided the scientific and
regulatory foundation of environmental health issues that
affect residents.
Three years ago, the Kellogg Foundation identified the WE
ACT-Columbia partnership as one of 10 community-based
participatory research projects that document the impact of
that kind of research on health policy. In a peer-reviewed
article published last January in the Journal of Urban Health,
the authors found that carefully designed community-based
research that is committed to strong science, high-level
community involvement, engagement in policy steps and
activities, and the strategic use of study findings to help
impact policy can be an important part of the broader struggle
for urban health and environmental justice.
They went on to say that conversion of New York City's bus
fleet to clean diesel and installation by the EPA of permanent
air monitors in Harlem and other hot spots were among outcome
for which this partnership's research and policy work was given
substantial credit.
Now, from 2001 to 2002, I served as chair of the National
Environmental Justice Advisory Council to the EPA, the NEJAC.
During this current Administration, the Office of Environmental
Justice budget has been reduced and important grant programs
have been cut. The Administration has micromanaged the EPA by
editing scientific public health documents such as the
Statement on Air Impacts from the 9/11 World Trade Center
disaster, as you well know.
It has attempted to roll back environmental laws and
supported regulations that would increase levels of air
pollution. It has introduced schemes to trade mercury, while
failing to look at the full range of impacts of mercury
emissions. It has sponsored research studies that were
ethically compromised, such as the recently abandoned
pesticides study in Florida. It has reduced the resources of
the Office of Child Health Protection, which was an important
catalyst in the field of children's environmental health
protection.
So I hope that this hearing signifies a real commitment by
this subcommittee to strong oversight of the EPA's
implementation of the Executive order, as well as an assessment
of the goals and objectives of the other 17 agencies. I believe
that the Office of Environmental Justice should be based in the
Office of the EPA Administrator from which it can draw
strength, resources and clarity in how that order should be
implemented.
I think that the Office must have a Director with a strong
profile in environmental justice, who is a member of the EPA
executive staff, who can integrate the environmental justice
perspective throughout the EPA. That Office must be accountable
to this committee through annual reports here.
Now, let me say that during my tenure as the NEJAC Chair,
the NEJAC, made up of volunteers, submitted well-researched and
peer-reviewed reports on community-based participatory
research, pollution prevention, cumulative impact, and fish
consumption. Yet there was rarely feedback or response after
the submission to the Administrator.
I think the bottom line here is that the current
Administration has failed to ensure that EPA managers integrate
EJ into all departments and aspects of the Agency. According to
the Inspector General's report, the EPA has failed to ensure
the goals, objectives and performance measures set to ensure
that environmental justice is achieved.
I think this lack of Federal leadership has shifted the
focus of advocates to State initiatives, where there has been
more opportunity. But even there, the EPA's lack of definitions
such as of ``disparate impact,'' despite the studies that
demonstrate those impacts, it continues to paralyze innovative
efforts in the States. The lack of protocols to measure
cumulative impact continues to stymie real progress.
So I echo the recommendations that have been advanced by
Dr. Bullard in the 2000 Toxic Waste and Race Report, to which I
was a contributor. We need strong congressional oversight and
support to ensure that the Inspector General's recommendations
are implemented. We need the Executive order fully implemented
and codified. We need leadership and commitment.
[The prepared statement of Ms. Shepard follows:]
Statement of Peggy Shepard, Executive Director, Co-Founder, WE ACT For
Environmental Justice
Good afternoon Madame Chair and committee members. I am Peggy
Shepard, co-founder and executive director of WE ACT For Environmental
Justice, a 19-year old non-profit advocacy organization based in Harlem
in New York City. WE ACT works to build community power to fight
environmental racism and to improve environmental health, protection
and policy in communities of color. WE ACT has developed a national
reputation for its community-based participatory research partnerships
to improve environmental health locally, to develop a national
environmental health research agenda to address a broad array of
community-based environmental exposures, and to translate research
findings into reformed public policy. My aim today is to portray an
urban community of color and low income that is disproportionately
impacted by pollution, and to address the impact of EPA programs on
community capacity to advance environmental justice and children's
environmental health. I am also a former chair of the National
Environmental Justice Advisory Committee (NEJAC) to the EPA from 2001-
2002.
The EJ Frame challenges the current environmental protection model
in addressing environmental inequities, disparate impact and unequal
protection. The frame is a precautionary one and seeks to prevent
environmental threats before they occur and shift the burden of proof
to the polluter. The vision of EJ places human health at the center of
environmental struggles, understanding that communities of color and
low income are home to more susceptible populations, that multiple
environmental exposures must be addressed by studying their cumulative
impact and synergistic effects on health, that children, in their early
stages of development, are more vulnerable to environmental exposures,
and that children of color living in communities of color
disproportionately impacted by pollution are the most disadvantaged.
I have lived and worked for 22 years in Northern Manhattan, an area
of 7.4 square miles composed of four neighborhoods where over 600,000
mostly African-American and Latino residents live on a median household
income of $16,000. There are multiple environmental exposures, high
proportion of learning disabilities, low birth weight, and excess
mortality from asthma, cancer, and heart disease. This area has the
highest asthma rates in the nation in East Harlem, and has two
neighborhoods that rank in the top 12 in New York City for new lead
poisoning cases. Significant broader impacts are that Manhattan is a
non-attainment area for clean air standards and is ranked #1 in cancer
risk from air toxics by the EPA.
In 1988, WE ACT was born out of community struggles around the use
of Northern Manhattan as the dumping ground for the downtown elite. We
began organizing around the operations of the North River sewage
treatment plant whose odors and emissions were exacerbating respiratory
disease. And in 2000, WE ACT filed a Title VI (of the Civil Rights Act
of 1964) Administrative Complaint with federal DOT against the
Metropolitan Transit Authority because Northern Manhattan neighborhoods
bear the disproportionate burden of hosting one third of the largest
diesel bus fleet in the nation. There are six diesel bus depots in
Manhattan and Northern Manhattan communities host five of those. Poor
urban communities everywhere are burdened by a multitude of toxic
exposures, often at high levels of concentration due to factors like:
disproportionate siting of industry and infrastructure, to the aged and
deteriorated buildings that serve as affordable housing, and to
transportation-related air toxins.
To respond to community concern about these environmental impacts,
WE ACT, no longer an unincorporated volunteer group (due to funds from
the settlement of WE ACT vs. NYC DEP) began a process of inquiry,
outreach and relationship building that led to discussions and
ultimately, collaborative research projects with clinicians at Harlem
Hospital and researchers at the Columbia Mailman School of Public
Health. In 1995, WE ACT and Columbia were awarded an EPA Community-
University Partnership (CUP) grant that allowed us to begin
communication, relationship building, and community identification of
concerns with our academic partners. Then in 1997, WE ACT was awarded a
three-year grant from the National Institute of Environmental Health
Sciences (NIEHS) new grant program, Environmental Justice Through
Communication. We began work with the understanding that there was room
for us to reshape and redirect the research agenda to include our
critical concerns.
We have had a total of eight years of these partnership grants that
have allowed us to develop capacity. We have been able to hire staff
with advanced degrees in environmental health and science and provide
technical assistance within our local, regional and national
environmental justice community. WE ACT has leveraged additional
funding for our research partnerships, and one Columbia Center alone
has leveraged over $6 million in grants, due, according to them, to the
effective community component. We have sustained the partnership for 10
years and continue as a matter of course to develop collaborative
projects. We have developed new tools such as GIS, curricula, and air
monitoring procedures. There is policy and system change with all
levels of government, academic institutions and community groups who
want to consult or work with us. And importantly, we are having impact
on the field through our trainings, findings, publications, policy
changes, new models of action, and the new perception--that it can be
beneficial to work with affected communities.
Our engagement in community-based participatory research (a method
where scientists work closely with community partners involved in all
phases of research, from inception of research questions, to study
design, to collection of data, monitoring of ethics, and participation
in the interpretation and communication of study results) has allowed
us to answer community questions regarding their exposures from a
variety of sources of pollution. According to a study conducted by
Meredith Minkler, Dr PH, ``The 8-year partnership between WE ACT/
Columbia's NIEHS Center/Children's Environmental Health Center produced
credibly scientific research and helped bring about environmental
health policy change . . . From a research perspective, the 1996 Earth
Crew (WE ACT's youth group that was trained to collect data) study, and
the WE ACT partnership's careful look at the relationship between bus
diesel emissions and asthma are still widely cited by the EPA and
academic researchers . . . Policy makers commented on the strength of
having research partners with recognized and respected staff
scientists. These scientists, well-received by regulatory agencies, do
the research that the community partner has access to and ownership of
to present convincing health and public risk arguments.''
WE ACT has engaged in research that has studied the relationship
between community-level environmental exposures and environmental
health outcomes of mothers and children in West and Central Harlem,
Washington Heights, and the South Bronx. WE ACT is making environmental
data and research accessible and relevant to community residents
through citywide campaigns such as Our Housing Is our Health that
translates relevant findings into practice and policy. We work to
ensure that city policies related to environmental health and indoor
air quality are informed by the latest and most relevant research.
Through Environmental Health and Justice Leadership Trainings for over
200 residents, we and our academic partners have provided the
scientific and regulatory foundation of environmental health issues
that affect community residents. It has been a rewarding experience to
educate youth as field technicians to engage in CBPR, and to co-author
several peer-reviewed articles on our CBPR work: Diesel Exhaust
Exposure Among Adolescents In West Harlem (PI: Dr. Northridge) and
Airborne Concentrations of PM2.5 and Diesel Exhaust
Particles On Harlem Sidewalks (PI: Dr. Kinney).
Three years ago, the Kellogg Foundation identified the WE ACT/
Columbia partnership as one of ten CBPR projects that document the
impact of CBPR on health policy. In a peer-reviewed article published
last January 2007 in the Journal of Urban Health, a bulletin of the NY
Academy of Medicine, the authors found that ``carefully designed CBPR
that is committed to strong science, high level community involvement,
engagement in policy steps and activities, and the strategic use of
study findings to help impact policy can be an important part of the
broader struggle for urban health and environmental justice . . .
``Conversion of NYC's bus fleet to clean diesel and installation by the
EPA of permanent air monitors in Harlem and other hot spots were among
outcomes for which the partnership's research and policy work was given
substantial credit.
The partners' roles in creating awareness of, and leading the fight
for environmental justice and the reduction in health disparities
around asthma has been widely recognized and cited (Brown et al, 2003;
Lee, 2004; Corburn, in press; Blackwell et al, 2005). As Brown et al
(2003) have noted: ``Asthma has become perhaps the primary disease in
which poor and minority people have pointed to social inequality and
have engaged in widespread political action. The case of asthma
demonstrates how environmental justice approaches place ethics and
rights issues in the center of health policy'' [40]. (Promoting
Environmental Health Policy Through Community Based Participatory
Research: A Case Study from Harlem, New York by Vasquez V., Minkler M.,
Shepard P., Jan. 2007, Journal of Urban Health, NY Academy of
Medicine.)
When I first began organizing around these issues in 1985, I
recognized that the lack of scientific literacy, information, data, and
context was and is a serious void that contributes to the systemic
exclusion of communities of color and low income from decision making
that affects their families and their communities. Around the nation,
environmental justice advocates have realized that evidence-based
campaigns move policymakers and empower residents. Though we understand
that science cannot always correlate exposures with suspected point
sources, or confirm community suspicions about exposures and outcomes,
we recognize that science and technology are important tools that can
impact our ability to develop safe, sustainable communities.
To achieve that goal, we must ensure translation of research
findings, scientific data, health information and government
regulations into policy reform and educational materials for a broad
range of stakeholders including research participants, residents,
health care providers, elected officials, policy makers and civic and
advocacy organizations. For that information exchange to be effective,
we need to build and expand the capacity of low-income communities of
color to improve children's environmental health pre-natally and post-
natally by training area residents and organizations to apply this
information in ways that will help to inform individual choices and to
modify current policies to improve community environmental conditions.
In the 90s, the Environmental Justice Movement with little
resources and capacity (i.e. the report Green of Another Color authored
by Faber and McCarthy, published by the Aspen Institute in 2001, which
found that just 12 foundations provided most of the environmental
justice funding between 1996-99, and that the EJ Movement receives one-
half of one percent of all environmental funding nationally), focused
its attention on federal initiatives and achieved an Environmental
Justice Executive Order 12898 by President Clinton, an Office of
Environmental Justice (OEJ) at the EPA, and the National Environmental
Justice Advisory Committee (NEJAC) to the EPA. WE ACT is here because
we understand--the Environmental Justice Movement understands--that we
must all hold each other accountable to ensure that the promise of that
executive order is fulfilled.
I have had the challenge of being a member of NEJAC for seven years
since 1995: serving two years as chair, and vice chair for one. From
the beginning, the NEJAC was an important opportunity for environmental
justice advocates to interact with policymakers on environmental
policy, to dialogue with the business and academic sectors, and to have
their voices heard on long standing issues that had gone unheard and
ignored. There were many successes that were celebrated: The 1995
Interagency Meeting at Clark Atlanta University where the director of
the NIEHS told me to contact Dr. Joe Graziano at Columbia School of
Public Health which set me on our present course of CBPR, the first
relocation of 358 African-American residents living next to the
Escambia Wood Treatment plant in Pensacola, Fla., and in 1997. the
partial denial by the EPA of Louisiana's Title V air permit to Shintech
which led to Shintech's withdrawal of their application to locate in
Convent, La., also known as Cancer Alley, because of the proliferation
of chemical and oil companies emitting toxic pollution. That was a time
of heady and exciting redress of longstanding abuse.
Though the executive order called on 17 agencies to address EJ
concerns, the EPA has taken the lead in convening the Interagency Task
Force that has had achievements--including the commitment to
environmental justice and CBPR by the NIEHS, planning grants from the
Department of Energy for groups in Empowerment Zones, and the inclusion
of environmental justice advocates on other agency federal advisory
groups. Those were not small steps for communities that had been locked
out for so long. The federal Interagency Task Force is crucial to
informing the goals, objectives, and initiatives of its 17 agencies. We
must ensure that the Interagency Task Force is chaired by a senior
manager with vision, experience navigating the federal bureaucracy, and
a heart felt commitment to reducing environmental exposures in
communities of color. We must remember that environmental protection,
public health, and community sustainability issues are shared by these
17 agencies, and it will take them all to address the challenges we
encounter in cleaning up contaminated sites, encouraging green economic
investment, reducing health disparities, transportation-related
impacts, and ensuring equal environmental protection. But there came a
time when these exciting successes became mired in bureaucracy and
ambivalence, and unfortunately, it was on my watch, shortly after I
became chair of NEJAC.
During the Bush Administration, the OEJ budget has been reduced,
and important grant programs have been cut. To make matters worse, the
Bush Administration has micro managed the EPA by editing scientific
public health documents such as the statement on air impacts from the
9/11 World Trade Center disaster. It has attempted to roll back
environmental regulations and supported regulations that would increase
not reduce levels of air pollution. It has introduced schemes to trade
mercury while failing to look at the full range of impacts of mercury
emissions. It has sponsored research studies that were ethically
compromised such as the recently abandoned pesticide study in Florida,
and it has reduced the resources of the Office of Child Health
Protection, an important office that was once a catalyst in the field
of children's environmental health protection.
In the beginning, the NEJAC held two to three public meetings
around the nation to solicit public testimony and concerns, and to
review NEJAC-identified issues for recommendation to the EPA. By my
tenure in 2001, there was one meeting every 12 to 16 months. Finally, I
recommended that we hold regional public sessions where the EPA
regional staff would host the meetings and follow up on the issues and
concerns. A few of these ``listening sessions'' have been held, but I
am embarrassed to say that Region 2 where I live, where Senator Clinton
lives, began planning for a session in 2002. A session in Region 2 has
never been held, despite the fact that I personally attended planning
meetings with city and state officials for two years. The regions must
be held accountable to implement goals and objectives that have been
determined by the regional EJ coordinators. Any assessment of EPA
regional initiatives on EJ will show the disparate and uneven
implementation of the executive order's goals.
I hope that this hearing signifies a commitment by this
subcommittee to strong oversight of the EPA's implementation of the
executive order as well as an assessment of the goals and objectives of
the other 17 agencies. I believe that the Office of Environmental
Justice (OEJ) should be based in the Office of the EPA Administrator
from which it can draw strength, authority, resources, credibility, and
clarity in how the executive order should be implemented. Otherwise it
can be a stepchild with no jurisdiction, few resources and staff.
The OEJ needs to have a director with not only a strong profile on
environmental justice, but who is a member of the EPA ``executive
staff,'' someone who has had the experience of navigating a huge
government bureaucracy, a leader who can interact and integrate the
environmental justice perspective within EPAs departments and its
``permanent government.'' We have an opportunity to identify a leader
of OEJ who can be held accountable to strategic objectives through
annual reports to this committee. NEJAC members have complained about
the year-long reports they work on and submit to the EPA with little or
no response. During my tenure we submitted well researched and peer
reviewed reports on CBPR, Pollution Prevention, Cumulative Impact, and
Fish Consumption. The work on these reports was well done, the dynamics
were frustrating, the members are all volunteers, and there was rarely
any feedback or response after my letter accompanied the report to the
Administrator. In some cases, the report sat for months in the OEJ
without timely submission to the Administrator.
The bottom line is that the Bush Adminstration has failed to ensure
that EPA managers integrate EJ into all departments and aspects of the
agency. According to the EPA's own Inspector General, the EPA has
failed to ensure that goals, objectives, and performance measures have
been set to ensure that environmental justice is achieved. This lack of
federal leadership has shifted the focus of advocates to state
initiatives where there has been more opportunity. But even there, the
lack of definitions of disparate impact--despite the studies that
demonstrate those impacts--continues to paralyze innovative efforts in
the states. The lack of protocols to measure cumulative impacts
continues to stymie real progress.
I hope that I have articulated some of the challenges and how we
may move forward to address them. Our goal is to improve the health and
lives of all communities especially communities of color and low income
those that are disproportionately burdened by pollution and health
disparities. I echo the recommendations that have been advanced by Dr.
Bullard in the 2007 Toxic Waste and Race At Twenty report to which I
was a contributor. We need strong congressional oversight and support
to ensure that the Inspector General's recommendations are implemented.
We need the Executive Order 12898 fully implemented and codified. We
need leadership and commitment.
Senator Clinton. Thank you very much, Ms. Shepard.
Dr. Wright.
STATEMENT OF BEVERLY WRIGHT, Ph.D., FOUNDER AND DIRECTOR, DEEP
SOUTH CENTER FOR ENVIRONMENTAL JUSTICE
Ms. Wright. Good afternoon, Madam Chair. I really want to
thank you for this hearing. I certainly appreciate having a
voice. I would like to thank this Senate Subcommittee for
holding the first of what we hope will be a series of
environmental justice hearings.
I am here today representing the National Environmental
Justice Network and thousands of Hurricane Katrina survivors
who are struggling with the Federal Environmental Protection
Agency and the Louisiana Department of Environmental Quality to
address post-Katrina environmental contamination and risk
reduction concerns in New Orleans. I thank you for the
opportunity to testify on these critical issues.
My professional and personal experiences of growing up,
living and working in the city of New Orleans greatly
influenced my perspective and testimony. I am a life-long
resident of New Orleans, LA and a hurricane survivor. I, like
many others, lost everything that I owned in this storm--my
home, my church, university and community were all destroyed.
Nearly every relative and close friend that I had living in the
city also lost everything. Our family had only one family
member whose house was not destroyed, and needless to say is
very crowded today.
I am speaking to you today with not only great personal
knowledge of the impact of Federal policy on victims of this
storm, but also as a professional working with community
residents to return home safely to their communities.
Hurricane Katrina represents the greatest environmental
disaster to ever occur in North America, but the response of
the Federal Government has not paralleled our problems. To
illustrate, I would like to acquaint you with a project that
has concentrated its efforts in New Orleans East and is focused
on the safe return of residents to the area. It is called A
Safe Way Back Home. We have formed a collaborative that
includes the United Steel Workers, Common Ground, faith-based
organizations, and colleges and universities to complete soil
remediation projects in several neighborhoods in eastern New
Orleans. The process for completing the project requires
residents to contact and organize their neighbors in their
block. The result is that we are bringing back neighborhoods
block by block, rather than house by house.
I can tell you without hesitation that I am disappointed in
our government's response to this disaster's consequences of
Katrina in my community. I am broken-hearted and disappointed
in the inaction of government. But the actions that have been
taken by our government have hampered our safe and speedy
return. The Safe Way Back Home project emerged out of the
frustration of many citizens over the lack of information
available on the environmental contamination, health, and
safety. Even more disconcerting was the actual double-talk that
we were receiving from the Environmental Protection Agency on
contamination levels and risk and how residents should respond.
In our attempt to respond in the midst of what we saw to be
slow to no action in the cleanup of neighborhoods by
government, and at the same time watching residents return to
their homes every day without protective gear or information on
risk levels of sediment, we decided to implement a
demonstration project that the government could model in the
cleanup of the city.
In the project's development, we spoke to EPA, FEMA, the
United Steel Workers Union, volunteer organizations, and
student organizations. After a short planning period and
coordination of partners, the DSCEJ at Dillard and the United
Steel Workers developed a plan to remediate 25 homes or one
block in New Orleans East. With approximately 180 volunteers,
over 2 weekends we removed 6 inches of topsoil, deposited clean
soil and planted 5 of the 25 homes where residents agreed to
the terms of application.
FEMA committed to pick up the soil. The Red Cross agreed to
provide supplies. The volunteers agreed to assist. The bottom
line is that the Federal Government actually to some extent,
EPA in particular and the Louisiana Department of Environmental
Quality, really worked against our efforts. First and foremost
EPA did not assess and properly mitigate Katrina environmental
impacts in this case, as cited in the GAO report. In December
2005, the assessment stated that a majority of sediment
exposure was safe, but 8 months later, August 2006, the Agency
revealed that this measure was for short-term visits such as
assessing immediate exposure damage and not to live near or in
the area.
Our volunteer neighborhood cleanup project was in March
2006. I believe that it was this inconsistent and misleading
information that led to FEMA's decision to disengage with our
project and resulted in the LDEQ reporting that our project was
unnecessary. As a result, residents on our block were actually
left to handle on their own large mounds of contaminated soil
piled on the street in the front of our houses.
What has become clear through my interaction with EPA and
this experience is that the Agency has lost sight of its true
mission to protect the public health and the environment. We
experienced a bureaucratic response in a crisis situation. The
Agency followed the letter of the law and not the spirit of the
law. For example, the State and Federal officials labeled the
volunteer cleanup efforts as ``scare mongering.'' EPA and LDEQ
officials said that they tested soil samples from the
neighborhood in December 2005 and that there was no immediate
cause for concern.
While I was initially totally confused by EPA's response to
contamination threats in my home town presented on their Web
site, I was truly angry after reading the June 2007 GAO report.
It is clear that existing policies are not adequate to protect
the public in matters related to disasters, especially
catastrophic events like Hurricane Katrina. It would seem that
the existing policies actually worked in a manner that is
diametrically opposed to the Agency's mission, that being the
environmental health and safety of the public.
The Safe Way Back Home project has caused excitement and
increased hope for the neighborhood's return. All of this is
happening without any assistance from local, State or Federal
Government. My recommendation would be to reexamine the policy
of a National Flood Insurance Program Act that allows for up to
$30,000 in additional funds to homeowners to demolish or even
raise their houses. I recommend that the Federal Government
appropriate a $3,000 to $5,000 grant to homeowners to remediate
front and back yards from sediment left by Hurricane Katrina.
I think my time is up. Thank you.
[The prepared statement of Ms. Wright follows:]
Statement of Beverly Wright, Ph.D., Director of the Deep South Center
for Environmental Justice, Dillard University
Good afternoon. I am Dr. Beverly Wright, Director of the Deep South
Center for Environmental Justice at Dillard University. I too would
like to thank this Senate Subcommittee for holding the first of what,
we hope, will be a series of environmental justice hearings. I am here
today representing the National Black Environmental Justice Network
(NBEJN) and thousands of Hurricane Katrina survivors who are struggling
with the federal Environmental Protection Agency and the Louisiana
Department of Environmental Quality to address post-Katrina
environmental contamination and risk reduction concerns in New Orleans.
I thank you for the opportunity to testify before the Subcommittee on
critical issues of concern in the aftermath of the hurricane and flood.
My professional and personal experiences of growing up, living and
working in the City of New Orleans greatly influence my perspective and
testimony.
mission statement
The Deep South Center for Environmental Justice (DSCEJ) was founded
in 1992 in collaboration with community environmental groups and
universities within the region to address issues of environmental
justice. The DSCEJ Community/University Partnership, under the auspices
of Dillard University in New Orleans, provides opportunities for
communities, scientific researchers, and decision makers to collaborate
on programs and projects that promote the rights of all people to be
free from environmental harm as it impacts health, jobs, housing,
education, and general quality of life.
who we are
A major goal of the Center has been the development of minority
leadership in the areas of environmental, social, and economic justice
along the Mississippi River Corridor. The DSCEJ has become a powerful
resource of environmental justice education and training. A major aim
of the Center has been the development of curricula that are culturally
sensitive and tailored to the educational and training needs of the
community. Over the past thirteen years, the Center has made great
strides in the accomplishment of these goals. We have observed the
incredible metamorphosis of local grassroots community residents into
national and international leaders, advocates, and spokespersons for
environmental justice.
The DSCEJ has developed and embraces a model for community
partnership that is called ``communiversity''. This model emphasizes a
collaborative management or partnership between universities and
communities. The partnership promotes bilateral understanding and
mutual respect between community residents and academicians. In the
past, collaborative problem-solving attempts that included community
residents and academicians were one-sided in terms of who controlled
the dynamics of the interaction between the two, who was perceived as
knowledgeable, and who was benefited. The essence of this approach is
an acknowledgment that for effective research and policy-making,
valuable community life experiences regarding environmental insult must
be integrated with the theoretical knowledge of academic educators and
researchers. Either group alone is less able to accomplish the goal of
achieving environmental equity, but the coming together of the two in a
non-threatening forum can encourage significant strides toward
solutions. The DSCEJ has advanced the communiversity model with the
formation of the Mississippi River Avatar Community Advisory Board
(CAB). The board consists of representatives from grassroots
organizations and leaders of affected communities in the corridor. The
Center has been involved in valuable environmental research aimed at
providing technical assistance. Additionally, the Center has developed
environmental justice education curriculum infusion modules that New
Orleans Public Schools (NOPS) teachers in grades kindergarten through
6th were trained to incorporate across disciplines into their teaching.
We trained over 200 elementary teachers to implement these curriculum
modules and disseminated curriculum guides to sixty-two elementary and
middle schools in the greater New Orleans area. The DSCEJ provides
educational seminars to college-level students and integrates student
interns and workers into its programs, research, and community
outreach. Toward that end, the Center sponsors Environmental Justice
clubs on university campuses and supports their projects.
The DSCEJ has gained a considerable reputation in the field of
hazardous waste worker training. Over the past twelve years, in
partnership with the Environmental Justice Resource Center at Clark
Atlanta University, the DSCEJ has forged a new, culturally sensitive
training model designed to meet the specific needs of urban city youth
living in environmentally contaminated communities through the
implementation of Minority Worker Training Programs and Brownfields
Minority Worker Training Programs in New Orleans, Baton Rouge, and
Shreveport, LA; Biloxi/Gulfport, MS; West Dallas, TX; Atlanta, East
Point, and Savannah, GA, and Ft. Lauderdale and Miami, FL.
Additionally, the DSCEJ has worked with two military communities in
Biloxi and Gulfport, Mississippi. This project was designed to
strengthen the ability of communities living in close proximity to
military bases to participate effectively in environmental restoration
decisions. The project resulted in greater knowledge and participation
in local Restoration Advisory Boards (RAB) and the election of several
community residents to a local RAB.
Since its inception in 1992, the DSCEJ has implemented numerous
grants in the areas of research, capacity building, and education and
training. Projects have been conducted in the areas of community
assistance and education, research and policy, and primary, secondary,
and university education. In its long-standing history of providing
service to communities that have sustained negative environmental
impact, the DSCEJ has continued to forge ahead, training communities
and building capacity.
For the last fifteen years, the Deep South Center for Environmental
Justice (DSCEJ) has worked with communities that have sustained
negative impacts from environmental contamination along the Mississippi
River Chemical Corridor. In the aftermath of Katrina, we find ourselves
fighting for the health and safety of our university, our city, and our
homes. A major objective of our center initiatives was to remove the
veil of secrecy that surrounds the issues of environmental
contamination.
In the Post Katrina era, the Center has directed its programmatic
components and research efforts toward finding solutions and providing
technical assistance for community residents along the Gulf Coast.
Community projects specifically directed toward clean up and
rebuilding, and worker training programs for displaced residents,
represent the Center's first efforts in what is intended to be a long-
term investment in the restoration of the devastated communities.
We have assisted in the mobilization and education of the citizenry
to fight for the proper clean-up of our land. The center has addressed
the research and policy, community outreach, education and training
needs of displaced residents of the city of New Orleans, with special
attention to issues of race and class. There are critical issues of
health and environmental restoration that must be monitored for
fairness as it relates to standards of cleanup for re-settlement.
Additionally, in the area of jobs and economic development, the center
engages in job training and placement related to environmental clean-
up. Our focus has been on training displaced citizens of New Orleans
and job placement for those citizens who have already been trained
through our Minority Worker Training and Brownfields Minority Training
programs funded by National Institute of Environmental Health Sciences
(NIEHS).
The task of the center continues to be to provide a space for
dialogue between community leaders who are concerned about how the
``new'' New Orleans will be shaped by race and class. Of utmost concern
is the potential for permanent displacement and permanent removal of
poor and working class African Americans who have called New Orleans
home for generations. Also at stake is the loss of a culture that is
deeply rooted in the African American community and that has been
preserved and practiced by the grassroots. First and foremost are the
goals of returning residents who wish to return, and the monitoring of
all aspects of government and commerce that may hinder that effort.
To date, we have been extremely involved with our state legislators
and city councilpersons. We have organized briefing sessions on both
legal and environmental issues of importance to rebuilding the city.
The NAACP Legal Defense Fund and NRDC have assisted us in these
efforts. We are participating in numerous work groups sponsored by EPA
(including FEMA) in an attempt to guide their responses to Katrina. We
have also been working on the ground with our grass roots community
based and civic organizations that we partnered with before Katrina to
respond to the many needs to our community. All of the work that we
plan will continue to be in partnership with these and other
organizations with which we have developed relationships since Katrina.
We successfully implemented a demonstration project to assist community
residents in removing toxic top soil, replacing it with new sod, and
cleaning up their neighborhoods.
Our Center has trained:
Over sixty small businessmen and contractors in Hazardous
Waste Removal, Mold Remediation, and Health & Safety for devastated
communities;
Displaced New Orleans residents in Baton Rouge, LA and
Houston, TX in worker training programs aimed at providing technical
skills that will allow them to embellish the workforce involved in the
clean-up and rebuilding of New Orleans;
Over 200 volunteers in Health & Safety training for
devastated communities so they could clean up homes targeted in the
``Safe Way Back Home'' project;
Over 2,000 community members educating them about toxic
exposure risks associated with the reality of post Katrina New Orleans.
Additionally, I have testified before congress and produced
scholarly papers, monographs, and reports on the impact of Katrina.
Moreover, the Deep South Center for Environmental Justice has
played a critical role in servicing the citizens of New Orleans who
have been displaced by Katrina, providing important information and
serving as an advocate for the cause of rebuilding the city along race
and class lines. The impacts are far-reaching and the center once again
has set itself apart from many by introducing ground-breaking ideas and
methods to address some of the most devastating effects of this
terrible storm.
Further evidence of the center's outstanding accomplishments and
commitment has been the recognition of my work for leadership in
addressing the challenges of Post Katrina New Orleans. I was honored
with the Environmental Health Leader Award by the Robert Wood Johnson
Foundation in 2006.
katrina impacts
As a resident of New Orleans East (also known as West Lake Forest)
and a professor of sociology and director of the Deep South Center for
Environmental Justice at Dillard University in New Orleans, I would
like to express my sincere gratitude to Senator Clinton and the
Subcommittee on Superfund and Environmental Health of the Senate
Environment and Public Works Committee for holding this hearing on
environmental justice. I am a life-long resident of New Orleans, LA and
a Hurricane Katrina survivor.
I, like many others, lost everything that I owned in this storm. My
home, church, university, and community were all destroyed. Nearly
every relative and close friend that I had living in the city also lost
everything. Our family had only one family member whose house was not
destroyed. I am speaking to you today with not only great personal
knowledge of the impact of federal policy on victims of this storm but
also as a professional working with community residents to return home
safely to their communities.
More than a million Louisiana residents fled Hurricane Katrina, of
which 100,000-200,000 could end up permanently displaced. Katrina
displaced just under 350,000 school children in the Gulf Coast, 187,000
in Louisiana, and closed the entire Orleans Parish Public School
System. More than 110,000 of the 180,000 homes in New Orleans were
flooded. Katrina affected over 20,000 black owned businesses and 60,000
in the Gulf Coast, totaling sales of 3.3 billion a year.
Katrina toppled offshore oil platforms and refineries, sending
shock waves throughout the economy, with the most noticeable effects
felt at the gas pumps. Katrina and Rita temporarily closed oil
operations in the Gulf Region that supply twenty-nine percent of US-
produced oil and nineteen percent of US sourced natural gas. Katrina
caused six major oil spills, releasing 7.4 million gallons of oil. The
Hurricane also hit 60 underground storage tanks, five superfund sites,
and numerous hazardous waste facilities.
Hurricane Katrina represents the greatest environmental disaster to
ever occur in North America. This could cause enormous consequences to
health and the environment. It has been described as the biggest
Brownfield and may be the largest reconstruction project in US history.
Evidence thus far shows that many flood impacted areas are
contaminated, and the contamination in large measure exceeds the
Environmental Protection Agency's (EPA) clean-up standards. Testing
done by the Natural Resources Defense Council (NRDC), EPA and others
shows sediments contaminated with heavy metals, petroleum, pesticides,
and industrial chemicals from oil and soot. In the immediate aftermath
of the storm, dangerously high mold counts were found in the air with
some neighborhoods showing mold spore counts as high as 645,000 per
cubit meter. The recommended safe level by EPA for mold spores is
50,000 spores per cubic meter.
The response to the health implications related to this enormous
environmental catastrophe falls far below any logical or reasonable
response to this disaster. Second only to ``rebuilding the levees'',
environmental health should be the issue of greatest concern in the
rebuilding and repopulating plan for the city. Unfortunately, issues
related to health and the environment have hardly been mentioned in the
discussions of rebuilding the city. This piece of the rebuilding
process is missing. Its omission is giving life to numerous rumors and
panic that can stall the rebuilding process. At stake is not only the
health of the community but also the loss of property and wealth for a
large portion of the New Orleans African American community, and a
possible dramatic shift in the demographics of the city, with negative
implications for the black electorate.
To illustrate, I would like to acquaint you with a project that has
concentrated its efforts in New Orleans East and is focused on the safe
return of residents to the area. It is called ``A Safe Way Back Home.''
(www.dscej.org) As a professor and Director of the Deep South Center
for Environmental Justice at Dillard University that is located in the
Gentilly area, I have been actively involved in projects that assist
community residents returning to the city and rebuilding their homes.
Our emphasis, however, has been on their safe return and on
environmental contamination issues. To this end, we have formed a
collaborative that includes the United Steele Workers, Common Ground,
faith based organizations (i.e. the United Methodist Church), and
colleges and universities to complete soil remediation projects in
several neighborhoods in eastern New Orleans. The process for
completing the project requires residents to contact and organize their
neighbors in their block. The result is that we are bringing back
neighborhoods block by block rather than house by house.
We have also experienced a ``tipping point'' in the project in that
we are beginning to see other houses and blocks in the area replicating
the project. New lawns are cropping up all around the neighborhood.
That means that residents have not only improved the aesthetics of the
neighborhood but are now also protected from environmental
contamination.
I can tell you without hesitation that I am disappointed in our
government's response to the disastrous consequences of Katrina on my
community. I am broken hearted and disappointed, not by the
``inaction'' of government, but by the actions that were taken by our
government that hampered our safe and speedy return to our homes.
The ``Safe Way Back Home'' project emerged out of the frustration
of many citizens over the lack of information available on
environmental contamination, health and safety. Even more disconcerting
was the actual ``double-talk'' that we were receiving from the EPA on
contamination levels and risks, and on how residents should respond.
The DSCEJ at Dillard University has been conducting environmental
remediation training with a grant from NIEHS for the last 12 years. The
specialized expertise and the trained workforce that it provided was a
great benefit to the city after Katrina. It also meant that our
university center could and would play a critical role in providing a
vital service in the clean-up of the city. We could supply trainers and
workers in areas gravely needed to clean-up and rebuild the city. But,
there was one more thing that we could provide besides our professional
expertise, and that was the implementation of a program that would
result in the actual clean-up of a site.
After Katrina, however, there was mass confusion on the ground. The
information that we received from EPA's website showed contamination
levels for lead, arsenic, and PCB's to be extremely high, exceeding
both EPA's and LDEQ's recommended safe risk levels.
We consulted with scientists from the Natural Resource Defense
Council (NRDC) and consulted EPA's website that reported sampling data,
to determine the type and extent of remediation needed to reduce the
risk of exposure from chemicals found in the soil.
[GRAPHIC] [TIFF OMITTED] T1978.001
In our attempt to be responsive in the midst of what we saw to be
slow to no action in the clean-up of neighborhoods by government and at
the same time watching residents return to their homes everyday without
protective gear or information on risk levels for sediment, we decided
to implement a demonstration project that the government could model in
the clean-up of the city. In the project's development, we spoke with
EPA (off the record), FEMA, the United Steelworkers Union, volunteer
organizations and student organizations.
After a short planning period and coordination of partners, the
DSCEJ at Dillard University and the United Steelworkers developed a
plan to remediate 25 homes or one block in the New Orleans East area.
With approximately 180 volunteers over two weekends, we removed six
inches of top soil, deposited clean soil and planted sod on the 25
homes where residents agreed to the terms of participation.
FEMA committed to pick-up the soil. The Red Cross agreed to provide
supplies, and the volunteers agreed to assist. The United Steelworkers
operated the bobcats to remove the soil. We were well on our way to
completion of what we saw as a precedent-setting event when on the
third day, FEMA stopped picking up the soil. All of our efforts to get
them to honor their commitment were thwarted. We were actually stuck
with several large piles of contaminated soil on the street of a block
we had just returned to normal with beautiful green grass on front and
back lawns, safe enough for children to play outside. We could not
understand why FEMA discontinued picking up the soil. We were latter
informed that the soil was contaminated and considered Hazardous
Material and under the Stafford Act could not removed by FEMA. EPA and
the LDEQ were insisting that the soil was not contaminated. The
residents were caught in the middle of an unbelievable dispute. What
were we to do with these large mounds of soil now sitting in the street
in front of our houses?
The story does have an ending, but not because the Federal
Government resolved this issue. Eventually, the city of New Orleans
removed the soil from the median where we moved it so as not to re-
contaminate the entire block.
The U.S. General Accountability Office (GAO) June 2007 report,
Hurricane Katrina: EPA's Current and Future Environmental Protection
Efforts Could Be Enhanced By Addressing Issues and Challenges Faced on
the Gulf Coast, speaks directly to actions taken by EPA.1
First and foremost, the agency did not assess and properly mitigate
Katrina environmental impacts in this case. As cited in the 2007 GAO
report, EPA's December 2005 assessment stated that a ``majority'' of
sediment exposure was safe. But eight months later August 2006, the
agency revealed that this measure was for short-term visits such as to
assess immediate exposures damage, not to live near or in the area.
Our voluntary neighborhood clean up project was in March 2006. I
believe that it was this inconsistent and misleading information that
led to FEMA's decision to disengage with our project and resulted in
the LDEQ reporting that our project was unnecessary. As a result,
residents on our block were left to handle on their own large mounds of
contaminated soil piled on the street in front of our houses.
What has become clear through my interaction with EPA and this
experience is that the agency has lost sight of its true mission to
protect the public health and the environment. We experienced a
bureaucratic response in a crisis situation. The agency followed ``the
letter of the law and not the spirit'' of the law. For example, state
and federal officials labeled the voluntary clean-up efforts as
``scaremongering.'' EPA and LDEQ officials said that they tested soil
samples from the neighborhood in December 2005 and that there was no
immediate cause for concern. According to Tom Harris, administrator of
LDEQ's environmental technology division and state toxicologist, the
government originally sampled 800 locations in New Orleans and found
cause for concern in only 46 samples. Generally, the soil in New
Orleans is consistent with ``what we saw before Katrina'' says Harris.
He called the ``Safe Way Back Home,'' program completely unnecessary.
A week after the March 2006 voluntary neighborhood clean-up project
began, a LDEQ staffer ate a spoonful of soil scraped from the piles of
soil left by FEMA in front of the beautiful new lawns planted by
volunteers of the ``Safe Way Back Home'' project. The soil-eating
publicity stunt was clearly an attempt to disparage the proactive
neighborhood clean-up initiative. I immediately invited Mr. Harris back
to eat a spoonful of soil every day for the next 10 years. Only then
would I be convinced that his exposure to the chemicals in the soil
would be comparable to my children or grandchildren playing outside in
the soil everyday. I offered to buy him lunch and bury the hatchet if
he were still alive and well.
While I was initially totally confused by EPA's response to
contamination threats to my hometown presented on their website, I was
truly angry after reading the June 2007 GAO report. It is clear that
existing policies are not adequate to protect the public in matters
related to disasters especially catastrophic events like Hurricane
Katrina. It would seem that the existing policies actually work in a
manner that is diametrically opposed the agencies' mission; that being
the environmental health and safety of the public.
The ``Safe Way Back Home'' project has caused excitement and
increased hope for the neighborhood's return. All of this is happening
without any assistance from local, state, or the federal government. It
has been the unrelenting resolve of New Orleans East residents to
rebuild their homes and their lives that has given us a glimmer of hope
for recovery.
In attempting to understand how and why the federal agencies (EPA,
FEMA, Army Corps of Engineers) were unable to assist citizens in their
quest to remediate their own properties after the storm, the GAO's
Hurricane Katrina: EPA's Current and Future Environmental Protection
Efforts Could Be Enhanced by Addressing Issues and Challenges Faced on
the Gulf Coast report offers much insight on the inner workings of
these agencies that fostered their failure to act. In fact, their
actions served as a deterrent to citizens' efforts.
While it is still my deepest contention that the federal government
should be responsible for the assessment and mitigation of impacts from
Katrina, in the absence of appropriate response that would lead to the
mitigation of exposure, I would expect and strongly contend that the
EPA and /or LDEQ should assist citizens in the mitigation of their
property when necessary.
The project, however, has been seriously hampered by the actions of
government to negate its necessity and the inaction of government with
some assistance in removing the soil. Ironically, although the EPA and
LDEQ officials say that the soil is ``safe,'' FEMA refused to pick up
the soil because it was contaminated. We have been unable to find any
government agency that will take responsibility for disposing of this
material and we are left to find our own individual solution. The
phrase ``Let Them Eat Dirt,'' is appropriate in this situation but much
more menacing in that this ``dirt'' is contaminated.2 I have
also been told that money not safety is the driver in this instance.
Although government officials insist the soil in residents' yards
is safe, Church Hill Downs Inc., the owners of New Orleans' Fair
Grounds, felt it was not safe for its million dollar thoroughbred
horses. The owners hauled off soil tainted by Hurricane Katrina's
floodwaters.3 Certainly, if tainted soil is not safe for
horses, surely it is not safe for people--especially children who play
and dig in the dirt.
My recommendation would be to re-examine the policy of the National
Flood Insurance Program/Act that allows for up to $30,000 in additional
funds to homeowners to demolish or even raise their houses. I recommend
that the federal government appropriate a $3,000 to $5,000 grant to
homeowners to remediate front and back yards from sediment left by
Hurricane Katrina flood waters.
What however is most significant in our struggle is that all of our
efforts may be for naught. The latest report including flood maps
produced by the Army Corps of Engineers show no increase in levee
protection to New Orleans East residents since Katrina.2
I would like to see this subcommittee investigate why a
disproportionately large swath of Black New Orleans once again is left
vulnerable to future flooding. After nearly two years and $7 billion of
levee repairs, the Army Corps of Engineers has estimated that there is
a 1 in 100 annual chance that about one-third of the city will be
flooded with as much as six feet of water.4 Mostly African
American parts of New Orleans are still likely to be flooded in a major
storm. Increased levee protection maps closely with race of
neighborhoods with black neighborhoods such as the Ninth Ward,
Gentilly, and New Orleans East receiving little if any increased flood
protection. This is clearly an environmental justice issue since this
could lead insurers and investors to think twice about supporting the
rebuilding efforts in these vulnerable areas.
[GRAPHIC] [TIFF OMITTED] T1978.002
All things being equal, my neighbors and I can expect the same
amount of flooding as occurred with Katrina. The injustice lies in the
fact that this same scenario does not exist for all New Orleanians who
were affected by the storm. The Lakeview area can expect 5\1/2\ feet of
increased levee protection, that means 5\1/2\ feet less water than what
they received from Katrina. The fact is that Lakeview is mostly white
and affluent; New Orleans East is mostly black and middle class. Where
is the justice? I cannot believe that this is still happening to us.
This same scenario is also true for the mostly black Lower Ninth
Ward, Upper Ninth Ward, and Gentilly. There is a racial component to
this injustice. Whether you are rich, poor, or middle class, if you are
a black resident of New Orleans, you are less protected and you have
received less increased protection from the federal government than the
more white and affluent community of Lakeview.
agriculture street landfill
Hurricane Katrina is not the first time New Orleans residents have
heard from official sources that a place is safe, only to discover
evidence to the contrary. New Orleans' Agricultural Street community,
which includes the Gordon Plaza subdivision, Housing Authority of New
Orleans (HANO) housing and the Press Park residential area and
community center, was built in the early 1980s on top of the
Agricultural Street Landfill site. The 95-acre site was used as a
municipal landfill (that included debris from Hurricane Betsy in 1965)
for more than 50 years prior to being developed for residential and
light commercial use. It closed in 1966.
Metals, pesticides and polycyclic aromatic hydrocarbons (PAHs) were
found in surface and subsurface soils in the Agricultural Street area
during environmental studies in 1993. The EPA refused to declare the
site eligible for the Superfund program in 1986, but, using standards
that gave more weight to soil contamination, added the landfill to the
National Priorities List as a Superfund site in 1994.5
Residents immediately pushed for a property buy-out and relocation from
the contamination. But the federal EPA disagreed, and ordered a $20
million ``clean-up,'' which began in 1998 and was completed in 2001.
Government officials assured the Agricultural Street community
residents that their neighborhood was safe after the ``clean-up'' in
2001. But the Concerned Citizens of Agriculture Street Landfill
disagreed and filed a class-action lawsuit against the city of New
Orleans for damages and relocation costs. Unfortunately, it was Katrina
that accomplished the relocation--albeit a forced one. This year, after
thirteen years of litigation, Seventh District Court Judge Nadine
Ramsey ruled in favor of the residents, describing them as poor
minority citizens who were ``promised the American dream of first-time
homeownership,'' though the dream ``turned out to be a
nightmare.''6 Her ruling could end up costing the city, the
Housing Authority of New Orleans and Orleans Parish School Board tens
of millions of dollars.7
The case is currently on appeal. ``It was a long and hard struggle,
but we won,'' says resident Elodia Blanco. ``It's a bitter-sweet
victory because we lost our community before Katrina.'' A dozen or so
FEMA trailers now house residents on the contaminated site, where post-
Katrina government samples have turned up levels of benzo(a)pyrene
exceeding EPA's residential guidelines.
The Agriculture Street Landfill story, however, does not end here.
Since Katrina, toxic hot spots have been identified on the site by EPA,
the Katrina flood waters evidently stirred up a toxic soup that has
further exacerbated the problem. When we inquired about the
contamination problem at the site some months after the storm, EPA's
retort was that ``there were hot spots but it was no longer an
environmental justice issue because all the people were gone.'' Wrong!!
A visit to the site showed people living in FEMA travel trailers and
others preparing to re-enter their homes after remediation.
In closing, I would like to call to the attention of the committee
a situation of grave concern to parents of children attending New
Orleans public schools.
In March of 2007, a coalition of community and environmental groups
collected over 130 soil samples in Orleans Parish. Testing was
conducted by Natural Resources Defense Council (attached to my
testimony). Sampling was done at 65 sites in residential neighborhoods
where post-Katrina EPA testing had previously shown elevated
concentrations of arsenic in soils. Sampling was also done at 15
playgrounds and 19 schools. We strongly believe the results of the
testing indicate the need for additional investigation into the safety
of a number of school grounds. Results from the independent laboratory
testing for the 19 schools are as follows:
------------------------------------------------------------------------
Arsenic
Sample Location Street Address concentration (mg/
kg)
------------------------------------------------------------------------
Einstein Charter................ 5100 Cannes........ 0.4
Mary Bethune Accelerated School. 4040 Eagle St...... 0.4
Moton Elem...................... 3000 Abundance 0.4
Street.
Dr. MLK Jr...................... 2503 Willow St..... 0.5
Lake Forest Elementary.......... 12000 Hayne Blvd... 0.5
Lusher Elementary/Middle School. 7315 Willow St..... 0.5
McDonogh 28..................... 401 Nashville Ave.. 0.5
Laurel Elementary............... 820 Jackson Ave.... 0.5
Reed Elementary................. 2521 Marais St..... 0.6
International School of LA...... 1400 Camp St. 0.6
(Andrew Jackson
Bldg).
P.A. Capdau Middle School....... 3821 Franklin Ave.. 1.1
S.J. Green Middle School........ 2319 Valence St.... 1.3
Lafayette Academy............... 2727 S. Carrollton 10.6
Ave..
Medard H. Nelson Elementary 1111 Milan St. 12.4
School. (McDonogh 7 Bldg).
McMain Magnet Secondary School.. 5712 South 12.6
Claiborne Ave..
Craig Elementary................ 1423 St. Philip St. 16.1
Drew Elementary................. St. Claude Avenue & 20.3
Pauline St..
Dibert.......................... 4217 Orleans Ave... 22.8
McDonogh Elementary (#42)....... 1651 North Tonti 34.4
St..
------------------------------------------------------------------------
The six results against the grey background indicate levels of
arsenic in excess of the LDEQ's soil screening value for arsenic. The
LDEQ soil screening value of 12 milligrams per kilogram (mg/kg)
normally requires additional sampling, further investigation, and a
site-specific risk assessment. It is clear that the levels of arsenic
in the sediment are unacceptably high for residential neighborhoods. We
are especially concerned about potential health risks to children
playing in areas with arsenic contaminated sediments. At some of the
sites sampled in March, lab results indicate that arsenic levels have
increased in the time passed since earlier post-Katrina studies.
In June 2007, the coalition sent a letter to LDEQ requesting it to
take action (letter is attached as part of my testimony) and
recommending that it take advantage of the window of opportunity
provided by the upcoming summer vacation to (1) conduct additional
sampling of school playgrounds in previously-flooded areas; (2) conduct
a site-specific risk assessment; and (3) work with the schools and
community to examine potential remediation options. Because we feel it
would be unethical to withhold this data from potentially affected
parties, we have notified school officials in the six schools with the
elevated arsenic levels detected in their sediments. The response that
we received from the USEPA (attached to my testimony) was basically
that they were reviewing our letter and would respond within 30 days.
The response that we received from LDEQ (attached to my testimony)
concerning the high arsenic levels found on the school grounds of New
Orleans public schools, once again supports the criticism of EPA's
response to Katrina cited by the June 2007 GAO report, that being, the
agency did not assess and properly mitigate Katrina environmental
impacts.
Specifically, the letter from LDEQ first of all addresses the fact
that ``15 of the 19 schools sampled fell below health-based levels of
concern and are consistent with background levels for Louisiana.'' Our
data actually show 13 of the 19 schools at safe levels. However, this
was not the point. We were and presently are only interested in those
schools with problems.
Secondly, the letter from LDEQ immediately speaks to their process
for collecting samples and the fact that LDEQ and USEPA together
collected more than 2,000 sediment and soil samples in the impacted
area and that NRDC ``collected only one sample.'' What is implied in
this statement is that the sampling that we did, although the results
were high, does not warrant further testing or concern. Consequently,
we were told that we should inform the schools in question. But,
although LDEQ was under no legal obligation, since the public schools
are strapped for funds, they would provide further testing if the
principal of the school made the request. My reply to that is, ``well,
thanks for the favor,'' but is it the job of citizens to assess and
mitigate the impacts of Katrina?
In the letter from LDEQ, there is an attempt to educate the
coalition on a few facts that we were not aware of. These involved the
possibility of the arsenic contamination existing on these school
grounds before Katrina. I find this to be an absolutely incredible
statement coming from this agency. Does this mean that LDEQ was
actually aware of the fact that elevated arsenic was on the playgrounds
of these schools? If not, then why are we discussing pre-Katrina
arsenic levels?
The point is that LDEQ and USEPA seem much more interested in
justifying their existing position, that being that they are not
obligated or even forbidden by law to clean up pre-Katrina
contamination, than they are in protecting the public. It is our hope
that LDEQ and USEPA rise to the challenge of its mission to ensure that
Louisiana's citizens ``have a clean and healthy environment to live and
work in for present and future generations'' by responding to this data
in a time-sensitive manner.
End Notes
1U.S. General Accountability Office, Hurricane Katrina:
EPA's Current and Future Environmental Protection Efforts Could Be
Enhanced by Addressing Issues and Challenges Faced on the Gulf Coast.
Washington, DC: GAO Report to Congressional committees, June 2007.
2See Robert D. Bullard, ``Wrong Complexion for
Protection,'' The Next American City, (Winter 2006/2007), found at
http://www.americancity.org/article.php?id--article=206.
3Brett Martell, ``Horse Racing Returns to New Orleans,''
Associated Press, November 23, 2006.
4John Schwartz, ``Army Corps Details Flood Risks Facing
New Orleans,'' The New York Times, June 20, 2007.
5See Agency for Toxic Substances and Disease Registry,
Public Health Assessment--Agriculture Street Landfill, New Orleans,
Orleans Parish, Louisiana, Atlanta, GA: ATSDR (June, 1999); Alicia
Lyttle, Agriculture Street Landfill Environmental Justice Case Study,
University of Michigan School of Natural Resources, Ann Arbor, Michigan
(January 2003).
6Ibid.
7Susan Finch, ``Ag Street Landfill Case Gets Ruling:
City Ordered to Pay Residents of Toxic Site,'' The Times-Picayune,
January 27, 2006.
Senator Clinton. Thank you very much, Dr. Wright.
I appreciate all of the panelists being here. I have a few
questions that I would like to followup with.
Let me start with you, Dr. Wright, because that was a very
compelling testimony. I really applaud the efforts that you,
your organization and your community have taken to try to bring
New Orleans back. As you know, I have been there several times.
I was privileged to be at Dillard University to deliver the
commencement. I am just heartbroken, as you are, with the
response of our government to what is a national disaster and
deserves better.
I am pleased you were able to highlight the environmental
justice aspects of this disaster. They continue now nearly 2
years after Katrina. Just last week, we learned that the
trailers FEMA finally provided to victims may be contaminated
with dangerous levels of formaldehyde. This is absolutely
unconscionable and it is a perfect example of why we are having
this hearing today, to highlight the increased exposures to
environmental hazards faced by low-income and minority
communities.
In this particular example, FEMA has stated that they are
doing all they can to rectify the situation. But I intend,
along with my colleagues, to keep a very close eye on FEMA to
ensure that testing for contaminated trailers is conducted and
that people living in these contaminated trailers are moved out
and into uncontaminated living space.
But of course, it is a problem because we don't yet have
enough living spaces because, as you pointed out, we haven't
done enough to mitigate against the effects of the disaster and
find places for people to be able to live safely so that they
can return. It has become a very unfortunate vicious cycle. We
can't get the public services back in New Orleans and the
surrounding parishes because we don't have enough people. We
can't get the people back because we don't have hospitals, fire
stations, police stations, retail stores, and so much else.
I think it is especially critical that we keep an eye on
EPA as they go forward because certainly your testimony about
the detail concerning the soil sampling that was done in these
neighborhoods raises some very serious questions.
I want to ask you specifically, I believe that in your
submitted testimony you spoke about the levels of arsenic being
higher than what is acceptable in six of the schools where soil
sampling was done. What action do you believe, Dr. Wright, EPA
needs to take in order to protect the children who attend these
schools?
Ms. Wright. Well, I believe they need to do something. So
far, we have gotten nothing but a letter from them basically
saying that we have received this data; we are reviewing it;
and we will get back to you in about 30 days. So what we would
like to see them do is to do what protocol calls for when there
are high arsenic levels that are existing. But we need them to
speed up the process because the children will be back in those
schools in September, so we need them to do the extensive
testing that they need to do and an immediate cleanup is
necessary.
To be honest with you, the citizens of New Orleans are so
tired of waiting that we are actually ready to move forward on
our own to help our schools get cleaned up. The project that I
am involved in would do it, but we don't believe that this
should be the citizens' obligation to do this. Our actions are
reactive in that we can't get a straight response on levels of
contamination. We get double-talk and then no action.
So what we are doing we hope is presenting a model for
government to follow in terms of protecting the health of
people in the city of New Orleans. The city right now is
covered with weeds because grass won't even grow. So at some
point, somebody is going to have to remove the topsoil in the
manner that we are asking it to be done in order for it to be
safe, but also just for aesthetic reasons. Community people
would come back if they came back to a neighborhood that looked
different from what it looks now. Our project has encouraged
people when they come back and they see the green grass, they
say, oh maybe I can go back home, and how do I get my yard in
front and back safe for my children to play in.
Senator Clinton. Dr. Wright, I would appreciate your
working with my staff and Senator Boxer's staff to help us
draft a letter to the EPA asking for answers to your questions.
We will work with you as expeditiously as possible to get such
a letter and also with your organization any other experts and
those with whom you have worked to try to get some answers
before school starts, and also some answers with respect to
what you have run into with sediment removal and collection and
replacement.
Thank you very much for your leadership.
Ms. Wright. Thank you.
Senator Clinton. Representative Mitchell, your observations
are very compelling. You have lived this experience. Your
family has been affected by the results of environmental
injustice. Your voice has become very important, not just in
South Carolina, but around the country because you have led a
very impressive effort to try to deal with what you found in
Spartanburg.
I want to ask, you know, do you believe that the EPA should
have an active National Environmental Justice Advisory
Committee that does regularly convene and discuss the concerns
of disempowered group of people? How best can we get the voices
that you eloquently represent, of your neighbors, your now-
constituents, to be heard more effectively in the setting of
policy when it comes to protecting our citizens from
contamination, from the effects of toxic sites and pollution
and so much else that people are suffering from?
Mr. Mitchell. Yes, thank you. I thank you first of all from
headquarters to the regions and with the State agencies because
of the importance of having such meetings such as the NEJAC. If
there were not a NEJAC, I wouldn't be sitting here now and the
situation in Spartanburg would probably be as what we first saw
it back in 1997. So yes, I do think that that is important, and
I think just having the simple presence, and what you are
currently doing here now, of putting it back on the radar
screen. Because at that point when we were designated one of
the demonstration projects through the Federal Interagency
Working Group, this was something that was unknown. No one knew
as far as the mandates that they were required to assist the
communities, but we were able to with the presence of EPA at
that point to leverage other Federal agencies who were looking
at environmental justice initiatives in their various agencies.
This is where we incorporated and leveraged these other
agencies to do what EPA couldn't do regarding housing and
health care. With Health and Human Services, Senator Hollings
was able to help me after we identified and categorized as far
as the nature of the extent of the chronic disease in the
community. He was able to help us to get our community health
center established there in Spartanburg to where now we treat
some 14,000 patients a year that otherwise didn't have a
medical home, and looking at early prevention.
Senator Clinton. Thank you very much, and thank you for
your leadership on this issue. I know you are working in the
South Carolina Legislature to try to further this agenda. I
wish you well on that.
Mr. Mitchell. Senator Clinton?
Senator Clinton. Yes, sir?
Mr. Mitchell. I might add too, though, that it is a very
complex situation and that is why I think that, as Dr. Bullard
stated and Peggy, this is something that needs to continually
happen as far as the dialog. Without the dialog, we will never
find the answers to some of the complex problems across the
country because they are very complex in different regions of
the country. I think until we have the listening sessions and
get the regions more active in the communities like Region IV
was in our case. I know that there are some regions that
respond more or better than some of the others, but I think we
need to have a blanket approach.
I think with your leadership and what you are doing here
now will get us to that point that we need to address these
communities across the country.
Senator Clinton. Thank you very much. I look forward to
having your continuing involvement and advice.
Dr. Bullard, as part of your testimony, you submitted a
letter signed by 100 organizations and individuals urging
immediate action on the recommendations to Congress that were
contained within the Toxic Waste and Race at Twenty report. I
hope we are starting to accomplish it. The first
recommendation, as you know, is to hold congressional hearings
on the EPA response to contamination in environmental justice
situations. I look forward to working with you and the
coalitions that have formed to advocate for these findings, to
enact additional recommendations.
With that in mind, I am hoping you might be able to provide
in greater detail information about another recommendation:
reinstating the Superfund tax. Can you explain the benefits
that this action would have for America in general, but
specifically for communities of color and low-income that are
impacted by questions of environmental justice?
Mr. Bullard. Yes, Senator. I think it is important that
when we look at the data and look at the statistics as to where
these sites are located, they are disproportionately located in
communities of color. There are so many communities of color
and low-income communities that right now have no--there is
nothing that you can hang your hat on to get them action.
So I think having Superfund reinstated would not only help
these communities that are fence line or they are nearby or
that are suffering, but it also would help the Nation as a
whole. I think having communities that don't have to worry
about leaky landfills and whether or not it will get cleaned
up, or whether or not there is money available to clean it up;
families that are struggling, that are suffering.
Somehow there may have been sites that should have been
listed on Superfund, but were not, such as the example in
Dixon, TN, the landfill that is leaking, that is creating lots
of problems for families that are next door, 54 feet from a
150-acre farm.
I think the fact that we don't have a program that is in
place, and the reason why the communities are asking, well,
what can we do? Can we get national leadership on this issue? I
think it is important to know that some States are doing
something, but to have national leadership on this, I think
that is very important.
Senator Clinton. Well, I know that my Chairman, Senator
Boxer, agrees completely. She has pointed out every year the
number of Superfund sites that are targeted for cleanup has
continued to decrease. The work that is undertaken and
completed is less and less, compared to the problems that we
know are out there. The fact that we did away with the basic
principle that polluters should pay, and we don't have a
dedicated stream of revenue to deal with these cleanups is one
of the reasons we are not doing this work. So I certainly agree
with your recommendation.
In the executive summary of the report that you submitted
along with your testimony, you note that in recent years the
EPA has mounted an all-out attack on environmental justice and
environmental justice principles. You know, we have heard from
the first panel as to some of the inaction and the failures
that have been the track record with respect to environmental
justice. But what are some of the proposals that you have made
in the report that would try to reinstate a more vigorous
approach? Could you answer this question about what we need to
do to implement the Executive order compared to what needs to
be codified? Do you recommend trying to codify the Executive
order or support the Executive order through appropriations,
the reinstatement of the Superfund, a polluter pays revenue
stream? Could you give us some guidance on that, Dr. Bullard?
Mr. Bullard. Yes, Senator. I think it is important that we
first of all, the fact that there is an Executive order that is
still in place that is somehow not being addressed adequately.
I think the complication of the Executive order, which is
basically based on two laws: the Title VI of the Civil Rights
Act of 1964 and the National Environmental Policy Act of 1969,
NEPA and Title VI. Those are two laws, but when you put them
together, you have the order.
I think the fact that the way that EPA operates is to say,
well, we can't do EJ because there is no statute. So if we had
a statute, had a law, then they wouldn't have that excuse.
I think it is important to look at the way that the Agency
has operated in the last 6 years has been an attempt to
dismantle, redefine, not just the Executive order, but also a
very important piece of legislation like the right to know,
TRI, to try to like weaken it, and instead of the right to know
more, the right to know less.
This whole idea of NEJAC, and I have heard a discussion
about NEJAC. NEJAC, I served on the first NEJAC--not knee-jerk,
NEJAC.
[Laughter.]
Mr. Bullard. I think the fact that the only thing that
brought NEJAC back was a catastrophe of Katrina. Now, that is
not good news. So when we talk about trying to take race and
income out of the Executive order or redefine environmental
justice is for everybody. If you redefine environmental justice
in the Executive order as for everybody, you don't have an
Executive order.
The looking at how you are closing the EPA regional
libraries. Well, a lot of the research and legal work is done
on environmental justice in the regions. There are just too
many attempts and initiatives that are going in the opposite
direction of where we need to go. So I think if we had laws
that were in place that you could point to and say, this is the
law; you need to enforce the law. Those are very important
things.
The Title VI hook that environmental justice legal
litigation had, a big point was lost after the Supreme Court
decision. So that Supreme Court decision in 2001, it was a very
chilling effect on a lot of the environmental justice work
around the country. To some extent, there are some agencies--I
won't quote any names, but the initials are like DOT and DOE--
say that we don't have to EJ anymore because, you know, you
have this lawsuit and it was lost and EPA is not doing it, and
they looked at EPA as the lead. So if EPA is not doing it, that
means a whole lot of other agencies are not doing it.
So I think having laws, having clear guidance so that you
can say that this is what environmental justice is. It has been
13 years and I think 13 years for very smart people is long
enough.
Senator Clinton. Thank you very much, Dr. Bullard.
Finally, I want to turn to Peggy Shepard. I really want to
thank you for all the work you have done on behalf of the
residents of Harlem and Washington Heights and other
neighborhoods in Northern Manhattan, and the pioneering
partnership between WE ACT and Columbia.
I am particularly concerned, as you pointed out in your
testimony, about asthma, lead poisoning, the impacts of all of
the concentrations of pollution and contamination on our
children. I have seen that first-hand, and I appreciate your
always emphasizing that.
In your testimony, you discuss the important role of
community-based participatory research in not only advancing
science, but in improving community knowledge. Earlier this
year, the National Institute of Environmental Health Sciences
convened a panel to examine the Institute's children's centers,
which perform important research on the environmental
pollutants that pediatric populations are exposed to on a daily
basis.
The panel recommended that the National Institute of
Environmental Health Sciences remove guidelines that make
community involvement an essential component of the Center's
research. I wrote a letter to Director David Schwartz
expressing concern about this recommendation because as we have
seen from your testimony today and your 20 years of work,
community-based research that involves the community gives us
important information upon which to make policy decisions.
I wanted to ask you, Ms. Shepard, would you comment on the
Bush administration's record regarding community-based
participatory research, and the real significance of this
pioneering work that you and others have done?
Ms. Shepard. Well, you know, I do think that the NEJAC was
able to highlight community-based participatory research, and I
do believe that the National Institute of Environmental Health
Sciences at the EPA has put some funds into those children's
centers, as well as the NIHS. So I think that that has been
excellent and we should applaud them for that.
But there is a different turn that has been taken at the
NIHS just as we have had 10 solid years of partnerships where
even communities that might be in the South or looking to
partner with communities even in California because they need
that kind of help. Just as we have partners really beginning to
work well together, because you know, it is a challenge. There
are differences in power. There are differences in resources
between residents and universities. But now we have been fairly
comfortable and now it is coming to an end.
Schwartz is saying yes, we have community partners with
these research centers, but now you don't need to do that
anymore. Some researchers think that perhaps they will be
looked on more favorably if they are not diverting, you know,
10 percent of their funds to community translation of research.
So I think that we have to not only hold the line there and
certainly hope that EPA will continue to fund those children's
centers, which NIHS would also like to de-fund, but we also
should ensure that other national institutes of health are
providing grant programs that do support this kind of research,
because we know that it is working.
Senator Clinton. Well, it is also part of the continuing
education effort. While we are trying to make progress to clean
up some of these sites, people need to know how to protect
themselves. They need to know what actions they can take for
themselves and their families. Involving the community is the
best way to get that information going in both directions. So I
will continue to try to make that case.
We will be submitting questions to each of you for the
record and would very much appreciate getting your responses in
writing.
In closing, I would like to thank our witnesses, those who
are here in person, those who submitted testimony, even though
you may not have been able to deliver it here on the panels, I
thank you for coming, especially the people who came all the
way from California.
I want to thank my Chairman, Senator Boxer.
This is just a first step, but I think it is a very
important one. I want to reiterate my commitment to continue
working for environmental justice with all of you. As I
announced, I will be introducing legislation to address a
number of the problems that we have identified today.
I will be holding a Superfund oversight hearing in my
subcommittee this fall. Environmental justice is one of the
aspects we will be looking at during that additional hearing.
We are very grateful to all of you. Some of you have
literally labored in the vineyards for decades. You have been
at the forefront of the environmental justice movement. You
helped to identify it and name it and bring it to life. It may
be on life support, but we are going to give it back a good
positive future through our joint efforts working together.
I am very grateful again that everyone would participate in
this historic hearing, and the hearing is adjourned.
[Whereupon, at 4 p.m., the subcommittee was adjourned.]
[Additional statements submitted for the record follow:]
Statement of Hon. James M. Inhofe, U.S. Senator from the
State of Oklahoma
Today we are going to take a hard look at EPA's environmental
justice program and its application. EPA's attempts to interpret the
broad and largely undefined concept of environmental justice have been
challenging. A series of highly criticized internal guidance documents
have created confusion on the practice of executing the duties of
President Clinton's executive order 12898. Today, environmental justice
means many things to many people, creating a complicated and
inconsistent understanding of its purpose and application. It is not a
formal rule, but often it is treated like one. As a matter of law, I am
concerned that we may be giving a non-binding, legally unenforceable
executive order more official standing than is legally permissible.
EPA does not currently provide an official definition or specific
guidance regarding the full effects to consider in environmental
justice complaints. The community impact analysis, which takes into
account the socio-economic and public heath effects of a targeted
population, is complicated and often lacks the required data needed to
calculate the net benefits industrial development can have in the
community. We must make sure that environmental justice programs don't
discourage Brownfields redevelopment efforts and other programs that
would bring jobs to low income areas.
For example, in 1997, a group of environmentalists opposed
Louisiana's issuance of air permits to a $700 million plastics
manufacturing facility in Covenant, Louisiana. The coalition argued
that the facility would impose a disproportionate pollution burden on
the mostly African-American community. The city, its elected officials,
and the local chapter of the NAACP supported the project and eagerly
awaited the 165 jobs, the $5.6 million in expected school revenue, and
the associated health benefits from increased community prosperity.
Unfortunately, however, the charges of environmental racism led to
EPA's objection to issuance of the permits. In response, the company
decided to relocate the facility to Texas. In this case the
environmental justice advocates may have won, but at the expense of the
state and the local community. The term environmental justice was used
as a rhetorical tool and prevented much needed and desired development
in the community. Unfortunately it lacked the cumulative impact
analysis required of such a comprehensive sociological issue.
In an attempt to clarify the agency's policy on environmental
justice and in response to the criticisms of inconsistent application,
EPA created the Environmental Justice Smart Enforcement Assessment Tool
(``EJSEAT''). Although the EJSEAT is considered strictly by the agency
as an internal management document for screening agency actions, I am
concerned that this internal document alters the rights of outside
parties and acts outside its legal reach and its intended purpose.
EPA's various guidance on environmental justice over the last 13
years is considered an interpretive rule, stating what the agency
``thinks'' and serves only to remind affected parties of existing
duties. The courts have decided that interpretive rules are not subject
to the Administrative Procedures Act (``APA'') and are outside the
scope of judicial review. This leaves ultimate discretion to the EPA on
what are ``high and adverse impacts.'' The APA, set forth by Congress
60 years ago, created a consistent and transparent process for agency
rule makings. An interpretive rule, like the EJSEAT, is not meant to
affect substantive change in regulations or serve as a basis for
denying permits, as it has effectively done in the past.
EPA's continued efforts to protect vulnerable communities from
intentional discrimination are commendable. But I fear for every
success story of where an EPA justice grant made it possible for a
community to educate its residents and improve public health, there is
an example of where the term environmental racism was used as a
rhetorical tool to mobilize activists, cast blame, and generate
unfounded pressure on targeted institutions. I look forward to hearing
from the Administration on its progress in implementing its
Environmental Justice program, and ideas for making the program more
uniform and predictable in its application.
Statement of Hon. Larry E. Craig, U.S. Senator from the State of Idaho
The purpose of today's hearing is to examine EPA's Environmental
Justice Program and its practical application. Executive Order Number
12898 issued by President Clinton in 1994 has a variety of practical
interpretations and legal sideboards. EPA quotes Environmental Justice
``as the fair treatment and meaningful involvement of ALL people with
respect to the development, implementation, and enforcement of
environmental laws, regulations, and policies.''
Generally speaking, there are three areas where environmental
justice can be applied:
First, permitting a new facility or proposing a new rule; second,
regulating current facilities or updating rules; and third, cleaning up
old industrial facilities and revitalizing a community.
Environmental Justice has had exceptional success stories. For
example, later today you'll hear about the efforts in Spartansburg,
South Carolina where a community banded together to create something
better for themselves by utilizing grant programs and community
leadership.
However, while there have been some successes, I believe the
program has had unintended consequences. In Convenant, Louisiana, local
citizens and community leaders were supportive of a manufacturing
facility, but due to charges of environmental racism under Title 6 of
the Civil Rights Act, EPA objected to the issuance of the needed
permits. The facility moved to another state--taking with it 165 jobs
and millions in expected school revenue.
The EPA Inspector General and the Government Accountability Office
have both been critical of EPA's implementation of the program and the
lack of overall implementation direction.
However, we must keep in mind the legal sideboards that apply to
this executive order. Environmental Justice in this instance can only
be considered an interpretive rule and is not subject to the
Administrative Procedures Act (APA). It is outside the scope of
judicial review and is not meant to bring about significant change in
regulations or serve as a basis for denying permits as it has
effectively done in the past.
It is also important to remember that Environmental Justice isn't
just an executive order, but an overarching philosophy. At the Federal
level, it is very difficult to equitably apply such a broad stroke
executive order. States like New York and Idaho are different in so
many ways and face problems that are often unique to each state.
Therefore, it is important that implementation include local
communities and officials and planning and zoning boards, utilize
collaborative groups with industry representation and we--the Federal
Government--make assistance available through programs like Brownfield
grants and environmental cooperative grants.
With that, Madam Chair, I look forward to hearing the testimony.
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