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March 4, 2004
Mr. Barry E. Hill
Director, Office of Environmental Justice
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, N.W.
Mail Code 2201A
Ariel Rios South Building
Room 2232
Washington, D.C. 20460-0001
Re: Comments on EPA's draft Toolkit for Assessing Potential Allegations of Environmental
Injustice
Dear Mr. Hill:
The U.S. Chamber of Commerce (Chamber) is pleased to provide the following comments on the U.S. Environmental Protection Agency's (EPA) draft Toolkit for Assessing Potential Allegations of Environmental Injustice (Draft Toolkit). The Chamber is the world's largest business federation, representing more than three million businesses of every size, sector, and region. In addition, more than 96 percent of our members qualify as small businesses.
The Chamber is part of the Business Network for Environmental Justice (BNEJ), a voluntary organization of businesses, corporations, industry trade associations, industry service providers, and business groups interested in environmental justice issues. The Chamber shares BNEJ's concerns that the Draft Toolkit embodies a confrontational, rather than a collaborative, approach to environmental justice decision making. In addition, the Chamber feels compelled to comment separately about EPA's statutory authority to implement its environmental justice program.
The Chamber strongly believes that all people should be treated fairly under all laws, including environmental laws, without discrimination. We support an open and informed dialogue with all stakeholders about environmental decisions that affect local communities. The Chamber also supports the use of sound science and scientifically rigorous risk assessments when evaluating and prioritizing environmental and health concerns. However, the Chamber does not believe that EPA has the statutory authority to implement its environmental justice program beyond the specific statutes it enforces.
The Draft Toolkit includes a copy of the August 9, 2001, memorandum from former EPA Administrator Christie Todd Whitman, which clarifies that EPA's authority as it relates to environmental justice is limited to existing statutory provisions. The Chamber agrees with this view. However, the Draft Toolkit also includes, in Appendix A, a copy of the earlier environmental justice memorandum written by former Clinton Administration EPA General Counsel Gary S. Guzy (Guzy memo). Included as part of Appendix B of the toolkit is a more comprehensive (and non-exhaustive ) list of other statutory provisions (the source of which is not disclosed) that might provide EPA with additional environmental justice authority. By including these additional sources, the Draft Toolkit appears to endorse the view that EPA has legal authority to implement an environmental justice program that transcends the specific statutes under which the agency operates. This view is is not supported by the Chamber.
The Guzy memo and the list of additional sources from Appendix B are contrary to the current EPA policy on environmental justice, as outlined in the memorandum from Administrator Whitman. Moreover, both the Guzy memo and the Draft Toolkit recognize the questionable legal basis upon which the notion of expanded EPA authority exists. For example, the Draft Toolkit states that the additional statutory authorities cited in Appendix B include provisions that EPA may be able to use....some of which might require issuing guidance from EPA Headquarters or rulemaking before they can be issued. The Guzy memo includes similar reservations.
EPA must understand that businesses simply cannot operate with this type of regulatory uncertainty. A business must know that when it applies to EPA for a permit, license, or registration, it can reasonably foresee the regulatory requirements it must comply with. The notion that there are other vague and undefined environmental justice requirements that it might, or might not, have to comply with is intolerable. In addition, the implication that EPA can issue a guidance document (e.g., the Draft Toolkit) that expands its legal authority by the mere recitation of other possible authorities is ridiculous.
Finally, the Chamber is concerned that EPA identifies its Draft Toolkit as a compliance tool for permit writers, while at the same time stating that the document may be revised periodically without public comment. The Chamber opposes the use of guidance documents as regulations, especially when such documents can be unilaterally revised without public notice. Not only is this approach contrary to the due process of law, it encourages a vague regulatory environment that is extremely difficult and frustrating for businesses to operate in. We strongly urge EPA to revise the Draft Toolkit and circulate it for further public review and comment.
The Chamber appreciates the opportunity to submit these comments on EPA's Draft Toolkit and thanks EPA and the Office of Environmental Justice for considering the views of the U.S. business community on this important subject.
Sincerely,
William L. Kovacs