Category: Biden Administration

Part III: EPA Guidance – The 2000 Draft Revised Investigative Guidance

Part V: Considerations in Site Selection

An applicant for an environmental permit faces any number of hurdles in gaining approval to construct and operate a facility or even expand an existing facility. Environmental justice concerns add a layer of complexity and uncertainty to capital investment decisions. It is almost certain that environmental justice claims will be made during the permitting process for major facilities. While each situation is different and the level of effort should be based on the facts and needs in each case, consideration can be given to taking certain steps before and during that process to reduce the likelihood of success of any such claims.

It is important to note that there is little to no fact-checking during the public comment process, meaning that opponents to a facility can make any number of unsupported claims. Many environmental justice advocates seem to believe that any facility located near or in the vicinity of a disadvantaged community is, on its own and regardless of the facts, a basis to make a claim regarding environmental justice. In other words, the mere location of the facility creates an environmental injustice. Additionally, claims of environmental injustice can be made tactically to galvanize opposition to the facility, again without regard to facts or based on the flimsiest of evidentiary bases. Notwithstanding the rhetoric, there are legal standards and factual thresholds, based on Title VI and the case law interpreting it and EPA’s own regulations and policies, that must be met to prove an environmental justice claim.

It is also important to remember that administrative or judicial review of environmental permits is usually confined to an administrative record. It is critically important that information developed to counter environmental justice claims be placed into the administrative record during the application and public comment process. Without supporting information in the record, the agency and permittee will not be able to rely on and reference the information in a decision document, the permit decision will lack valuable supporting evidence, and a reviewing tribunal or court will lack a basis to uphold the permit decision.

The obvious, but perhaps unrealistic, step to limit or eliminate environmental justice claims is to locate a facility in an area where no one lives in proximity to the proposed facility. These may be located in rural areas or within much larger tracts used or set aside for industrial purposes (sometimes called ‘mega-sites’). If such tracts are available, they should be given serious consideration. However, rural tracts may not meet the needs of the proposed facility, such as access to transportation infrastructure for raw materials or products, and even the larger tracts set aside for industrial purposes may have residents in some degree of proximity.

As a result, it is more likely than not that available industrial sites will be located in areas where some population resides in some degree of proximity. Determining if those sites are suitable for selection, from an environmental, economic, and environmental justice perspective, requires a searching inquiry that should begin prior to making any purchase commitments.

Site selection can be based on a number of considerations. Economic considerations, such as price, property size, local zoning or land use ordinances, proximity and access to transportation (pipelines, rail, truck, barge, or ship), and access to electrical infrastructure, are standard. Many companies make decisions based solely on these considerations.

However, environmental considerations are also important. For example, in Louisiana, an applicant and the environmental agency must give due consideration to environmental aspects of the project and an applicant cannot simply rely on business or economic considerations. See e.g., In re: Supplemental Fuels, Inc., 94-1596 (La. App. 1 Cir. 5/9/95), 656 So.2d 29, 39. Environmental considerations could include the attainment status of the area, the amount of wetlands on or adjacent to the property, the property’s location in a floodplain, the water quality standards for the waters receiving permitted discharges from the facility, the level of emissions, and the proximity of residents to the proposed facility.

Environmental justice has added a new level of complexity and considerations to site selection, especially as to the effect the environmental aspects of the facility have on any community in proximity of the proposed facility. In general terms, the demographics of the population in proximity to the proposed site can be obtained and the effects of “pollution” (such as generated waste, wastewater discharges, and air emissions) from the facility on that population can be analyzed.

In this regard, due regard should be given to the site selection team and its organization. Team members representing real estate, economics, and environmental professionals should be included, but, should the circumstances warrant it, consideration should be given to including counsel, along with a modeler, statistician, and toxicologist. The modeler, statistician, and toxicologist should be hired by counsel as consulting experts and should report only to counsel. This will assist in preserving the confidentiality of any communications from the modeler, statistician, and toxicologist regarding the effects of “pollution” on the community.

The demographics of the community in proximity, down to zip codes and census blocks, can be obtained from the US Census and other sources. Further, there may be reliable information available regarding actual impacts in a given area. For example, the Louisiana Tumor Registry compiles actual cancer incidences and mortality data for specific cancers at the census block level.

Once available data is gathered, the modeler, toxicologist, and statistician can evaluate potential impacts on a neighboring community. In these efforts, counsel and these team members should be guided by the legal and policy framework set out in the Draft Revised Investigative Guidance and Toolkit or any other guidance issued by the Biden Administration. In other words, their efforts and analysis should be shaped and guided by the “disparate impact” framework set forth in those documents.

The modeler can use air emission models to predict or identify off-site locations, or receptors, where air emissions are predicted to be located. For example, receptors can be located within the model at locations in and around the community to predict the level of emissions at that location or receptor based on the maximum levels of emissions estimated from the proposed facility. The toxicologist can utilize the predicted information from the model to determine the potential impacts on that population and the statistician can determine if that potential level of impact is statistically significant.

During the permit and public comment process, opponents are likely to insert their own information into the record to attempt to support their claims. Information such as the demographics of an area, the results of screening model runs, such as EPA’s Risk-Screening Environmental Indicators (RSEI) model, and data obtained from EPA’s EJ Screen have all been used. However, the RSEI model and EJ Screen have important caveats as to their use. For example, EPA notes that EJ Screen was developed merely to “highlight places that may be candidates for further review.” There is “uncertainty in the data” and that EJ Screen is “a screening tool and “not a detailed risk analysis.” See www.epa.gov/ejscreen/limitations-and-caveats-using-ejscreen. The applicant and its team should address and refute any comments and submissions utilizing this type of basic screening-level information.

The end result of the process should be a report that can be placed into the record for each potential site to support the decision to choose a particular site. If the analysis indicates that a particular site will not have a disparate impact, based on EPA’s own analytical framework, the site can be evaluated based on economic or environmental considerations. If the analysis indicates that a particular site will have or may have a disparate impact, that site can be ruled out, additional analysis performed to further define the extent of any impact, or perhaps there may be facts supporting a claim of substantial legitimate justification. In this way, the decision to choose a specific site has a viable and supported administrative record that should survive administrative or judicial review and should serve to counter or negate opposition and/or unsupported rhetoric in the record.

Environmental Justice: Origins, Background, and Site Selection Considerations – Part IV: EPA Guidance – The Toolkit

The article contains five parts:

Part III: EPA Guidance – The 2000 Draft Revised Investigative Guidance

Part IV: EPA Guidance – The Toolkit

On January 18, 2017, EPA issued a “Dear Colleague” letter to introduce Chapter 1 of its Compliance Toolkit and clarify existing law and policy to promote and support compliance with federal civil rights laws. After a reminder that all recipients of EPA financial assistance have an affirmative obligation to comply with federal civil rights obligations and that EPA has a duty to ensure compliance, EPA suggests that enforcement of civil rights laws and environmental laws can be achieved in a manner consistent with sustainable economic development and which ensures the protection of human health and the environment.

Generally, the Toolkit attempts to explain what constitutes intentional discrimination and disparate impact and the proof necessary to establish such claims based on the case law cited therein. Unlike the 2000 Draft Revised Investigative Guidance, which detailed EPA’s investigation and decision-making process and procedures, the Toolkit is primarily a summary of legal standards which EPA will use in investigating and resolving complaints.

EPA defines intentional discrimination (or different treatment) as occurring when a recipient intentionally treats individuals differently or otherwise knowingly causes them harm because of their race, color, national origin, disability, age or sex. Intentional discrimination requires a showing that a challenged action was motivated by an intent to discriminate but does not require showing bad faith, ill will, or evil motive.

To determine if such discrimination exists, EPA will evaluate the “totality of the relevant facts” including direct, circumstantial, and statistical evidence to determine whether intentional discrimination has occurred, citing Washington v. Davis, 426 U.S. 229, 242 (1976). EPA acknowledges that direct proof is often unavailable and, as a result, EPA will consider such evidence as statements by decision makers, the historical background of the events in issue, the sequence of events leading to the decision in issue, a departure from standard procedure (e.g., failure to consider factors normally considered), legislative or administrative history (e.g., minutes of meetings), the foreseeability of the consequences of the action, and a history of discriminatory or segregated conduct, citing Village of Arlington Heights v. Metropolitan Housing Redevelopment Corp., 429 U.S. 252, 266-68 (1977).

EPA also stated that intentional discrimination can be based on a showing of disparate impact coupled other evidence of motive, such as the evidence noted above. EPA relied on Elston v. Talladega County Board of Education, 997 F.2d 1394, 1406 (11^th Cir. 1993), which stated: “Discriminatory intent may be established by evidence of such factors as substantial disparate impact, a history of discriminatory official actions, procedural and substantive departures from the norms generally followed by the decision-maker, and discriminatory statements in the legislative or administrative history of the decision.” Thus, disparate impact is “not irrelevant” and can be used with other pertinent facts to prove intentional discrimination. Arlington Heights, 429 U.S. at p. 265.

EPA also suggested that it may analyze claims of intentional discrimination using the “burden shifting analytic framework” utilized in Title VII cases and explained in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that framework, the complainant must carry the initial burden of establishing a prima facie case of racial discrimination, which EPA stated may be done by showing that: the complainant is a member of a protected class; the complainant was eligible for the recipient’s program, activity or service; the complainant was excluded from that program, activity or service or was otherwise treated in an adverse manner; and an individual who was similarly situated with respect to qualifications, but was not in the complainant’s protected group, was given better treatment. If shown, the burden then shifts to the recipient to establish a legitimate, non-discriminatory reason for the challenged policy or decision and the different treatment.

EPA defines disparate impact (or discriminatory effect) as occurring when a recipient uses a facially neutral procedure or practice that has a significantly adverse (harmful) and disproportionate effect based on race, color, or national origin. In a disparate impact case, the focus is on the consequences of the recipient’s policies or decisions, including the failure to take action, rather than the recipient’s intent.

EPA provides only cursory discussion of a disparate impact analysis, saying that EPA must establish a prima facie case by identifying the specific policy or practice at issue; establishing adversity or harm; establishing disparity; and establishing causation.

Adversity exists when “a fact specific inquiry determines that the nature, size, or likelihood of the impact is sufficient to make it an actionable harm.” The Toolkit does not define what harms many be actionable. To analyze disparity, EPA analyzes whether a disproportionate share of the adversity/harm is borne by individuals based on their race, color, or national origin. A general measure of disparity compares the proportion of persons in the protected class who are adversely affected by the challenged policy or decision and the proportion of persons not in the protected class who are adversely affected. When demonstrating disparity using statistics, the disparity must be statistically significant.

If the prima facie case is established, EPA must then determine whether the recipient can articulate a “substantial legitimate justification” for the challenged policy or practice and determine whether there are any comparably effective alternative practices that would result in less adverse impact (that is, are there less discriminatory alternatives?).

The Toolkit also makes two important points. First, it makes clear that compliance with a NAAQS “would be insufficient … to find that no adverse impacts are occurring for purposes of Title VI.” Thus, the rebuttable presumption established by Select Steel and the 2000 Draft Revised Investigative Guidance was eliminated. Second, complainants do not bear the burden of proving adversity. EPA assumes the responsibility for conducting an investigation of the allegations to determine if there is an adverse impact.

Environmental Justice: Origins, Background, and Site Selection Considerations – Part III: EPA Guidance – The 2000 Draft Revised Investigative Guidance

The article contains five parts:

Part III: EPA Guidance – The 2000 Draft Revised Investigative Guidance

Part III: EPA Guidance – The 2000 Draft Revised Investigative Guidance

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. The goal of environmental justice will be achieved when everyone enjoys the same degree of protection from environmental and health hazards, and equal access to the decision-making process to have a healthy environment in which to live, learn, and work. See www.epa.gov/environmentaljustice. To determine whether the goal has been achieved in individual situations, EPA has issued various guidance documents over the years which govern EPA’s investigation of environmental justice complaints.

EPA issued Interim Guidance in February 1998 which provided an internal framework for EPA’s processing of complaints alleging discrimination in environmental permitting. After a series of public meetings and evaluation of public comments on the Interim Guidance, EPA issued the Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits (the Draft Revised Investigative Guidance). 65 Fed. Reg. 39650 (June 27, 2000). [1]

The Draft Revised Investigative Guidance was developed to address the application of Title VI to alleged adverse disparate impacts caused by environmental permitting. It does not address other applications of Title VI in the environmental context, such as unequal enforcement or public participation. It also does not address discriminatory intent.

The Draft Revised Investigative Guidance provides detailed information regarding EPA’s process and procedures for investigating Title VI complaints related to permitting, including acceptance and rejection of complaints, investigation procedures, informal resolution, and providing ‘due weight’ to a recipient’s submittals in an investigation. Importantly, though, the Draft Revised Investigative Guidance provides EPA’s adverse disparate impact analytical framework and the recipient’s justification of any adverse disparate impact.

EPA’s framework for an adverse disparate impact analysis consists of six steps:

Assess Applicability (determine the type of permit action at issue);
Define Scope of Investigation (determine the source or sources of an alleged impact and which of the sources should be included in an analysis);
Conduct Impact Assessment (determine if the activities of the permitted entity, either alone or in combination with other relevant sources, are likely to result in an impact);
Make Adverse Impact Decision (determine whether the estimated risk or measure of impact is significantly adverse);
Characterize Populations and Conduct Comparisons (determine whether a disparity exists between the affected population and an appropriate comparison population); and
Make Adverse Disparate Impact Decision (determine whether the disparity is significant).

The evaluation in most of the steps could result in the termination of the investigation. For example, EPA could determine in Step 1 that the permit action decreases emissions, in which case EPA would likely close the investigation. Additionally, EPA could determine in Step 4 that any impact is not adverse and if so, “the allegation will not form the basis of a finding of non-compliance.” 65 Fed. Reg. 39676 (June 27, 2000).

In the Step 3 impact assessment, EPA assesses whether the alleged discriminatory act may cause or is associated with one or more impacts. EPA will review whether the entity emits or releases pollutants or substances (called stressors by EPA) that could be the source of the alleged impacts and whether there is a plausible exposure route. For example, the entity could release fine particulate matter into the air and the alleged impact is respiratory ailments or asthma. In this step, EPA reviews, among other things, any direct links to potential impacts, the risks associated with compounds, and concentration levels.

Assuming there is an impact, EPA will determine in Step 4 whether an estimated risk or measure of impact is significantly adverse. EPA would evaluate the risk or measure of impact compared to benchmarks for significance provided under any relevant environmental statute, EPA regulation, or EPA policy and if the risks or other measure of potential impact meet or exceed a relevant significance level, the impact generally would be recognized as adverse under Title VI.

EPA provided an example of potential outcomes of this Step 4 evaluation using a range of risk values. EPA would expect that cumulative cancer risks of less than 1 in 1 million (10^-6) would be very unlikely to support a finding of adverse impact while cumulative cancer risks above 1 in 10,000 (10^-4) would likely support a finding of adverse impact. EPA may make an adverse impact finding when the risks fall in between those ranges.

EPA also provided guidance on the role of the National Ambient Air Quality Standards (NAAQS) in a finding of adverse impact. NAAQS are set at levels that are protective of human health and the environment with an adequate margin of safety. As such, air quality that adheres to such standards “is presumptively protective of public health in the general population” and “emissions of that pollutant should not be viewed as ‘adverse’ within the meaning of Title VI.” 65 Fed. Reg. 39680 (June 27, 2000). However, this presumption may be overcome, or rebutted, “if the investigation produces evidence that significant adverse impacts may occur.” Id.

This “rebuttable presumption” originated in an EPA decision in 1998 on a Title VI complaint regarding Select Steel Corporation. However, in 2013, EPA stated that it would “eliminate application of the rebuttable presumption when investigating allegations about environmental health-based thresholds.” 78 Fed. Reg. 24740 (April 26, 2013). Although compliance with a health-based threshold “is a serious consideration in an evaluation of whether adverse disparate impact exists” and “strongly suggests that the remaining risks are low and at an acceptable level,” applying the presumption “may not give sufficient consideration to other factors that could also adversely impact human health.” 78 Fed. Reg. 24740-24741 (April 26, 2013). EPA did eliminate application of the rebuttable presumption on January 18, 2017 when it issued its Compliance Toolkit (discussed in Part IV).

EPA would then, in Step 5, determine whether a disparity exists between the affected population and an appropriate comparison population. The affected population is one which suffers the adverse impacts of the stressors from assessed sources. The comparison population would be drawn from those who live within a reference area and may include the general population or the non-affected population for the reference area.

Disparity will be assessed using comparisons both of the different prevalence of race, color, or national origin of the two populations and comparisons of the level of risk of adverse impacts experienced by each population. There is no one formula or analysis to be applied and EPA will “use appropriate comparisons to assess disparate impact depending on the facts and circumstances of the complaint.” 65 Fed. Reg. 39681 (June 27, 2000). EPA could compare the demographic characteristics of most likely affected to the least likely affected or the average risk or measure of

adverse impact by demographic group within the general population or within an affected population.

EPA will then determine in Step 6 whether the disparity is significant. EPA will review the comparisons in Step 5 to determine if the results are consistent across the various comparisons made. Further, EPA announced that disparity “would normally be statistically evaluated to determine whether the differences achieved statistical significance to at least 2 to 3 standard deviations.” 65 Fed. Reg. 39682 (June 27, 2000). EPA will also consider uncertainties, such as the accuracy of predicted risk levels. Regardless, EPA made clear that the significance of a given level of disparity may vary depending upon the facts and circumstances of the complaint.

Based on the above analysis, EPA may make a finding that an impact is both adverse and borne disproportionately by a group of persons. That, however, does not end the inquiry. The recipient may be able to show that the impact is justified. To do so, the recipient must show “that the challenged activity is reasonably necessary to meet a goal that is legitimate, important, and integral to the recipient’s institutional mission.” 65 Fed. Reg. 39683 (June 27, 2000). Such a showing could include such interests as economic development “if the benefits are delivered directly to the affected population and if the broader interest is legitimate, important, and integral to the recipient’s mission.” Id.

Environmental Justice: Origins, Background, and Site Selection Considerations – Part I: The Statute

The article contains five parts:

Part III: EPA Guidance – The 2000 Draft Revised Investigative Guidance