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Draft Technical Guidance for Assessing Environmental Justice in Regulatory Analysis

Public Webinar: Questions and Answers

May 29, 2013

Question: Does this guidance require the rule decision maker to take any action or 

just consider the analysis done?

Kelly Maguire, EPA: The guidance itself is just that – it is guidance and recommendations. It 

doesn’t outline any requirements, both for the analyst or the decision 

maker. Any action that might be taken on the part of the decision maker is 

up to their discretion. There is nothing in this guidance itself that indicates 

the decision maker must take action or a particular type of action based on 

the results of the analysis. We see the analyst as providing the information 

to the decision maker in a consistent, transparent manner. And then how 

they use that information is up to their discretion.

Al McGartland, EPA: To add on to what Kelly said, often times it depends on what particular 

authorities we (EPA) are using to regulate pollution. So, whether it’s the 

Clean Air Act, or various titles within the Clean Air Act, or the Safe 

Drinking Water Act, or TSCA (Toxic Substances Control Act) or other 

things, it really does depend on the context of our authorities, and what 

flexibilities the decision maker may or may not have to deal with 

environmental justice issues, as well. So it’s very much context-driven. It 

would be impossible to codify the guidance and what action would be 

appropriate under various findings of environmental justice differences.

Question: Have you identified the participants in the Science Advisory Board 

review?

Kelly Maguire, EPA: Yes. The participants have been identified. We actually don’t have that 

list. That’s something that our Science Advisory Board has, and it will be 

made publicly available. I believe the federal register notice is going out 

shortly – as in next week – and at that point they should be posting the 

panelists. So that is public information. It’s just not something we have 

yet.

Question: Can you give a scenario where this guidance would change current agency 

practice, or does this guidance document current agency practice?

Kelly Maguire, EPA: This guidance doesn’t necessarily document current agency practice, 

though to a large extent many – if not all – of the major program offices 

are considering environmental justice in their rule-making activities and 

are learning various ways that they can collect and use data to inform 

environmental justice questions.

What this guidance does is outlines a set of questions, best practices and 

options for considering environmental justice in our regulatory activities 
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in a way that will bring greater consistency, rigor and transparency across 

the program offices. So right now each program is operating as almost an 

independent body to figure out ways to consider environmental justice. 

This guidance is an attempt to draw together all the learning that is 

happening across the agency, as well as to provide some information 

across the program offices to bring greater consistency.

In terms of a scenario where this guidance would change current agency

practice – I don’t have an exact scenario. But the idea behind the 

guidance is that all program offices in all rules will consider 

environmental justice in ways that perhaps haven’t been done before.

The agency to date has always relied on standard language to indicate that 

environmental justice concerns are not found because our rules are usually 

strengthening various environmental standards. Those decisions are rarely 

based on any type of in-depth analysis. So what will change in finalizing 

this particular guidance is that we will be more informative with regard to 

potential outcome in environmental justice in each of our offices in terms 

of our regulatory actions.

Question: Can the analyst waive the demographics analysis as unnecessary if the 

impact analysis finds that there is no adverse impact based on the 

appropriate health protective benchmark?

Al McGartland, EPA: If we were looking at a chemical and we found that exposures across the 

board were well below our reference concentration or our reference dose, 

and if we aren’t going to regulate, then we could waive the demographics 

analysis because there would be no regulation necessary. But I think the 

crux behind environmental justice is that there might be either sensitive 

populations based on sensitivities, or based on exposure patterns, or 

lifestyles, that we all have to worry about. Until you do the demographic 

analysis you can’t have a high degree of confidence that you would be 

below the appropriate health benchmarks if they exist for a chemical. For 

carcinogens we don’t typically have benchmarks, but we do for some noncarcinogens.

Again, it’s case-specific issue, but one of the processes is that you really

have to look hard at small populations of exposure instead of looking at 

national averages of certain kinds of exposures to be certain that there are 

no differences in risk that are meaningful.

Question: Regarding the last question on waiving the analysis, what about existing 

disproportionate impacts even though future regulation is applied 

uniformly?

Kelly Maguire, EPA: What we have tried to do with this guidance is to get analysts to think 

about looking at the baseline – that is any existing differences – as well as 
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across options. So it could be the case that there’s a pretty uneven 

distribution in the baseline, and even though a standard is being put in 

place uniformly.

We are asking analysts to specifically highlight for the decision maker, 

who may not be aware of that particular outcome without having looked at 

the baseline as distinct from the option under consideration. We are 

asking analysts to consider whether or not, in doing the analysis, the 

options under consideration either exacerbate or ameliorate any 

preexisting differences and to highlight that information for the decision 

maker.

Al McGartland, EPA: Sometimes it may not be the actual standard that has an uneven 

distribution. For example, focusing on monitoring placement of certain 

ambient air quality standards it’s really a question of where would we 

monitor to make sure that the standards are being maintained. 

Question: Will states be bound to this guidance when rule making is delegated? 

What obligations will this guidance create for state and local government 

when rules are specific to particular regions?

Kelly Maguire, EPA: The guidance is currently written, it applies across rule-making activity. 

This question has been raised within the agency itself – as to how this 

guidance applies to regional or state or other actions, and that’s something 

that is currently under discussion right now – as to what kind of definitive 

statement it should or should not be making in regard to application to 

state actions. It’s not something that is addressed at all in the guidance, 

but it’s something we are aware of. It’s a question that’s come from our 

regional partners in developing of this guidance.

Addendum: The guidance applies to EPA regulatory actions. It does not 

apply to state or local actions.

Question: Regarding the existing disproportionate impact, how close does the rule 

have to be to those impacts? For example, if the community is highly

exposed to toxics but the rule is a NAAQS what does the analyst consider? 

Kelly Maguire, EPA: I believe what you’re asking here is about multiple and cumulative 

exposures. The agency does not have definitive guidance on how to 

consider cumulative effects within a particular rule making, but it’s 

something we’re engaged in.

We will update the guidance as that information becomes available. But 

at this point, since the agency does not have uniform ways of considering 

cumulative effects, we direct analysts to be aware of and consider as these 

effects as they can. But we don’t have any definitive guidance.
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Question: Could you have the team of speakers introduce themselves and their roles 

at EPA?

Kelly Maguire, EPA: I’m an economist in the Office of Policy.

Anne Wolverton, EPA: I’m also an economist in the Office of Policy.

Gelena Constantine, EPA: I’m the Office of Research and Development, Environmental 

Justice Coordinator.

Charles Lee, EPA: I’m the Deputy Associate Assistant Administrator for 

Environmental Justice. 

Al McGartland, EPA: I’m the Director of the National Center for Environmental 

Economics in the Office of Policy.

Kelly Maguire, EPA: We have two more people on our core writing team, Carlton Eley, 

who is an analyst in the Office of Environmental Justice. And 

Jennifer Bowen is a Division Director in the National Center for 

Environmental Economics.

Question: Will the assessment of environmental justice and regulatory action require 

additional time for the EPA to develop and propose regulatory action? If 

so, how much more time is estimated?

Kelly Maguire, EPA: The time component is not something we specifically address. What we 

have tried to do with this guidance is be very cognizant of the many

constraints that face our program offices when developing their regulatory

analyses in general. We do not want to delay that process, and sometimes 

we can’t because of deadlines or court orders that exist.

We’ve introduced enough flexibility within the guidance itself so that the 

incorporation of EJ effects can be assessed using existing data and 

regulatory analyses, and not, in fact delay the issuance of any proposed or 

final rule.

Question: Will the powerpoint be available after this call?

Kelly Maguire, EPA: Yes, it will be loaded to the docket. My contact information is also the 

final slide here. So, if for some reason you have trouble accessing that 

docket, you can e-mail me at maguire.kelly@epa.gov, and I’ll be happy to 

send the presentation to you.

Question: Are we able to contact you through e-mail if we have future questions?

Kelly Maguire, EPA: Yes. Or by phone (202-566-2273). 
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END