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 

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OVERSIGHT OF EPA’S ENVIRONMENTAL JUSTICE PROGRAMS 
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61–978 PDF 2012

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 
(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

BARBARA BOXER, California, Chairman 

MAX BAUCUS, Montana 

JOSEPH I. LIEBERMAN, Connecticut 

THOMAS R. CARPER, Delaware 

HILLARY RODHAM CLINTON, New York 

FRANK R. LAUTENBERG, New Jersey 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

AMY KLOBUCHAR, Minnesota 

SHELDON WHITEHOUSE, Rhode Island 

JAMES M. INHOFE, Oklahoma 

JOHN W. WARNER, Virginia 

GEORGE V. VOINOVICH, Ohio 

JOHNNY ISAKSON, Georgia 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming1

LARRY E. CRAIG, Idaho 

LAMAR ALEXANDER, Tennessee 

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 

FRANK R. LAUTENBERG, New Jersey 

BENJAMIN L. CARDIN, Maryland 

BARBARA BOXER, California, (ex officio) 

LARRY CRAIG, Idaho 

DAVID VITTER, Louisiana 

CHRISTOPHER S. BOND, Missouri 

JAMES M. INHOFE, Oklahoma, (ex officio) 
(III) 

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 
Page

IV 

—Continued 

Center on Race, Poverty & the Environment, San Francisco, CA and 

Delano, CA ................................................................................................. 114–120 

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 ................................. 168–224 

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........................................................... 225–297 

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 ........................................................ 298–319 

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 .................................................................. 320–338 

Article, Essence, July 2007, Troubled Waters, by Cynthia Gordy ................... 339–345 
(1) 

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 
2 

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 61⁄2 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 
3 

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. 
4 

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. 
5 

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. 
6 

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 
7 

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. 
8 

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 
9 

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 51⁄2 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 
10 

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. 
11 

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 lowincome 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. 
12 

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 
13 

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 EN- FORCEMENT 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 
14 

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 man-
15 

ner. 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 Alle-
16 

gations 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. 
17 

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. 
18 

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 lowincome 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 lowincome 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 re-
19 

gional 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. 
20 

1 Executive Order 12898 ‘‘Federal Actions to Address Environmental Justice in Minority Populations and Low-income Populations,’’ February 11, 1994. 2 ‘‘EPA Needs to Consistently Implement the Intent of the Executive Order on Environmental 

Justice,’’ Report No. 2004–P–00007, March 1, 2004. 

In February 1994, the president signed Executive Order 128981 (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. 

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 review2, 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. 

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. 
21 

3 ‘‘EPA Needs to Conduct Environmental Justice Reviews of Its Programs, Policies, and Activities,’’ Report No. 2006–P–00034, September 18, 2006. 

Evaluation of EPA Environmental Justice Reviews 

In 2006, we completed our evaluation3 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. 

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 
22 

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. 
23 

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. 
24 

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 
25 

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.’’ 2GAO, Environmental Justice: EPA Should Devote More Attention to Environmental Justice 

When Developing Clean Air Rules, GAO–05–289 (Washington, DC: July 22, 2005). 

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

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. 

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 
26 

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 pro-
27 

3President 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. 

grams, 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 highpriority 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

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. 
28 

EPA GENERALLY DEVOTED LITTLE ATTENTION TO ENVIRONMENTAL JUSTICE IN DRAFT- ING 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 pol-
29 

431 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. 

icy, 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. 

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. 
30 

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 devel-
31 

oped. 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 socioeconomic, 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. 
32 
33 

1U.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). 

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. 

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. 
34 

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 

61⁄2 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 hun-
35 

dreds. 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. 
36 

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. 
37 

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. 
38 

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. 
39 

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. 
40 

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. 
41 

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 
42 

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. 
43 

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 solu-
44 

tions 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? 
45 

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 dis-
46 

parities 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 
47 

1See 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. 2See R.D. Bullard, Dumping in Dixie: Race, Class and Environmental Quality. Boulder: 

Westview Press, 2000. 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). 4Marianne Lavelle and Marcia Coyle, ‘‘Unequal Protection,’’ National Law Journal, September 

21, 1992, pp. S1–S2. 5Presidential Memorandum (William J. Clinton) Accompanying Executive Order 12898 (February 11, 1994). 

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

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. 

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

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. 

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 envi-
48 

6 U.S. Environmental Protection Agency. Guidance for Incorporating Environmental Justice in 

EPA’s NEPA Compliance Analysis. Washington, DC: USEPA, 1998. 7 Institute of Medicine, Toward Environmental Justice: Research, Education, and Health Policy Needs. Washington, DC: National Academy of Sciences, 1999, Chapter 1. 8See ‘‘Study: Public Housing is Too Often Located Near Toxic Sites.’’ Dallas Morning News, 

October 3, 2000. 9See the Center for Health, Environment, and Justice, Poisoned Schools report (2001) found 

at http://www.bredl.org/press/2001/poisoned—schools.htm. 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. 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. 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. 13OMB 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. 

ronmental consequences resulting from industrial, municipal, and commercial operations or the execution of federal, state, local, and tribal programs and policies.’’6

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

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

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

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

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

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. 

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 
49 

14Office 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. 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. 16Pace, 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. 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. 

pounds of chemicals known to pose some of the worst threats to human health, including lead and mercury. 

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

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.’’ 

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. 

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). 

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). 
50 

18 Robert D. Bullard, The Quest for Environmental Justice: Human Rights and the Politics 

of Pollution. San Francisco: Sierra club Books, 2005. 19Tetra 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. 21 Ibid., p. 31. 

• 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. 

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. 

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 con-
51 

22 Ibid., p. 17. 23 Ralph Blumenthal, ‘‘Texas Lawsuit Includes a Mix of Race and Water,’’ The New York 

Times, July 9, 2006. 

taining 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

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. 

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 WalMart 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 chemicalindustrial 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 In-
52 

24Mary Meux, ‘‘Veolia to Temporarily Stop Receiving VX Wastewater,’’ Port Arthur News, 

June 18, 2007. 25 Jessica Star, ‘‘Sweeter Home Alabama: Alabama PCB Suits End in $700 Million Settlement,’’ Anniston Star, August 21, 2003. 

diana while the federal court in Terre Haute, Ind. sets a date for a preliminary injunction hearing on the matter.24

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

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 environ-
53 

ment. 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 lowincome 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. 
54 

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) 
55 

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. 
56 

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. 
57 

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 dis-
58 

crimination 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. Unfortu-
59 

nately, 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 
60 

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 
61 

1Leslie Kish, Survey Sampling 163 (1965). 

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. 

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 
62 

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. 
63 

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 screeninglevel 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); 
64 

• 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; 
65 

• 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. 
66 

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-yearold 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. 
67 

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 ACTColumbia 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 
68 

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, cofounder 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. 
69 

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 AfricanAmerican 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 transportationrelated 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 
70 

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 peerreviewed 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 
71 

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 
72 

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 
73 

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 meas-
74 

ure 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 
75 

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. 
76 

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. 
77 

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 
78 

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 cleanup 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. 
79 

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 
80 

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 shortterm 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. 
81 

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. 
82 

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 51⁄2 feet of increased levee protection, that means 51⁄2 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 
83 

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: 

Sample Location Street Address Arsenic concentration 

(mg/kg) 

Einstein Charter ....................................................................... 5100 Cannes .......................................... 0.4 

Mary Bethune Accelerated School ........................................... 4040 Eagle St. ........................................ 0.4 

Moton Elem .............................................................................. 3000 Abundance Street .......................... 0.4 

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. (Andrew Jackson Bldg) 0.6 

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 Ave. .......................... 10.6 

Medard H. Nelson Elementary School ..................................... 1111 Milan St. (McDonogh 7 Bldg) ....... 12.4 

McMain Magnet Secondary School .......................................... 5712 South Claiborne Ave. ..................... 12.6 

Craig Elementary ..................................................................... 1423 St. Philip St. .................................. 16.1 

Drew Elementary ...................................................................... St. Claude Avenue & Pauline St. ........... 20.3 

Dibert ....................................................................................... 4217 Orleans Ave. .................................. 22.8 

McDonogh Elementary (#42) ................................................... 1651 North Tonti St. ............................... 34.4 

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 postKatrina 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 
84 

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 
85 

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 
86 

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 
87 

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 
88 

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 ev-
89 

erybody. 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 communitybased 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 
90 

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. 
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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. 
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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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Æ