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In 1994 President Clinton issued Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, charging each federal agencies with the task of “making environmental justice part of its mission…” In the years since, the EPA has taken strides toward achieving this goal by developing tools, guidance and activities to increase public participation and make EJ an integral part of rulemaking, compliance and enforcement.
In 2011, the EPA updated its EJ strategy in the document titled Plan EJ 2014, providing a “roadmap” for the ongoing, agency-wide integration of EJ principles and practices. In the EPA’s Plan EJ 2014 Progress Report released in early 2013, the agency outlined several related accomplishments, including how it is incorporating EJ in the core rulemaking process, one of its primary goals.
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Perhaps the most important accomplishments are the issuance oftwo related documents for agency use:
1) Interim Guidance on Considering Environmental Justice During the Development of an Action (EJ Rulemaking Process Guidance) – a step-by-step guide to help EPA staff identify EJ considerations at key points throughout the rulemaking process and identify early-on how to gain meaningful public participation, and
2) Draft Technical Guidance for Assessing Environmental Justice in Regulatory Analysis (EJ Technical Guidance) – a guide to analyzing and assessing EJ concerns with recommendations for ensuring consistency and quality within the regulatory analysis scheme. The document also assists with how to best assess the distribution of environmental/health impacts across different demographic groups of concern.
From 2010 to 2012,use of these documents by EPA staff has resulted in a record number of EJ analyses related to the rulemaking process. According to EPA, during that time, more than 20 EJ analyses were performed on average per year, while from 1995 through 2009, less than two were performed on average per year. These analyses provide the EPA with a wealth of information necessary to determine whether or not a rulemaking or revision will “prevent and mitigate adverse environmental and health impacts that disproportionately affect minority and low-income populations.”
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For example, in 2011 the EPA performed an EJ analysis for the Definition of Solid Waste Rule (DSW) following an administrative petition seeking to revoke the rule. The 2008 DSW was intended, in part, to encourage recycling by allowing certain hazardous secondary materials rule to no longer be regulated as hazardous waste when certain conditions were met. The petition raised several concerns about the protectiveness of the rule including the disproportionate risk to the health and safety of minority and low-income populations.
The analysis compiled information about community health vulnerabilities and environmental impacts, making “qualitative connections between increased vulnerability factors (relating to increased exposure and increased susceptibility).” This information helped to assess the level of risk of negative health and/or environmental impacts to people impacted by the rule. Specifically, the vulnerability factors in the analysis included:
1) Multiple and cumulative effects,
2) Ability to participate in the decision-making process,
3) Physical infrastructure,
4) Susceptible populations, and
5) Unique exposure pathways.
Based on the findings, the EPA concluded that indeed minority and low-income populations could be negatively impacted by potential safety, health and environmental impacts of the rule.
Another very targeted EJ analysis was also completed in 2011 for the National Emissions Standards for Hazardous Air Pollutants (NESHAP) for power plants. The analysis specifically looked at how mercury emissions from power plants affect people who regularly rely on freshwater fish as part of their diet. The analysis looked at fish consumption patterns of different ethnic populations including white, black, Hispanic, Vietnamese, Laotian, and Native American, in diverse areas of the country including South Carolina, California, and the Great Lakes region. The EPA concluded that the analysis and benefits of reducing mercury exposure from power plant emissions made the final rule appropriate and necessary.