[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
                              ----------                              
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.
                              ----------                              

           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

                              ----------                              
                                                                   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

                              ----------                              


                        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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \2\ See R.D. Bullard, Dumping in Dixie: Race, Class and 
Environmental Quality. Boulder: Westview Press, 2000.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \4\ Marianne Lavelle and Marcia Coyle, ``Unequal Protection,'' 
National Law Journal, September 21, 1992, pp. S1-S2.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \7\ Institute of Medicine, Toward Environmental Justice: Research, 
Education, and Health Policy Needs. Washington, DC: National Academy of 
Sciences, 1999, Chapter 1.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \8\ See ``Study: Public Housing is Too Often Located Near Toxic 
Sites.'' Dallas Morning News, October 3, 2000.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \9\ See the Center for Health, Environment, and Justice, Poisoned 
Schools report (2001) found at http://www.bredl.org/press/2001/
poisoned--schools.htm.
---------------------------------------------------------------------------
              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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.''
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \18\ Robert D. Bullard, The Quest for Environmental Justice: Human 
Rights and the Politics of Pollution. San Francisco: Sierra club Books, 
2005.
---------------------------------------------------------------------------
                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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \21\ Ibid., p. 31.
    \22\ Ibid., p. 17.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \23\ Ralph Blumenthal, ``Texas Lawsuit Includes a Mix of Race and 
Water,'' The New York Times, July 9, 2006.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \24\ Mary Meux, ``Veolia to Temporarily Stop Receiving VX 
Wastewater,'' Port Arthur News, June 18, 2007.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \25\ Jessica Star, ``Sweeter Home Alabama: Alabama PCB Suits End in 
$700 Million Settlement,'' Anniston Star, August 21, 2003.
---------------------------------------------------------------------------
                         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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