Disparate Impacts Analysis

1. Disparate Impacts Analysis Presented by Krishnan Ramamurthy and Michael A. Corbin

2. Purpose • To provide background information about the Disparate Impacts Analysis so that the Environmental Justice Advisory Board (EJAB) can assist in developing the DEP disparate impacts analysis process.

3. Background • Why are we considering disparate impacts? • National History • Title VI of the Civil Rights Act of 1964 • EPA Regulations • PADEP’s commitment

4. Background (Con’t) • EPA Regulations • Discrimination Prohibited on the Basis of Race, Color, National Origin or Sex. • A recipient shall not use criteria or methods of administering its program which have the effect of subjecting individuals to discrimination because of their race, color, national origin, or sex, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program with respect to individuals of a particular race, color, national origin, or sex. 40 CFR 7.35 (b).

5. Background (Con’t) • EPA Regulations • A recipient shall not choose a site or location of a facility that has the purpose or effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination under any program to which this part applies on the grounds of race, color, or national origin or sex; or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of this subpart. 40 CFR 735 ( c). • Also see applicant assurance language at 40 CFR 7.80. • PADEP’s commitment to the Environmental Justice Work Group Recommendations.

6. Definitions. • Disparity (Disparate Impact.) A measurement of a degree of difference between population groups for the purpose of making a finding under Title VI. Disparities may be measured in terms of the respective composition (demographics) of the groups and in terms of the respective potential level of exposure, risk or other measure of adverse impact. (See Draft Revised Investigation Guidance at page 49.)

7. Definitions. • Adverse Impact. A negative impact that is determined by EPA to be significant based on comparisons with benchmarks of significance. These benchmarks may be based on law, policy, or science. (See Draft Revised Investigation Guidance at page 48.)

8. RULE FOR DISPARITY. (See Draft Revised Investigation Guidance at page 42.) • Demographic disparity. A statistical significance of at least a 2 to 3 standard deviation. • Adverse impact disparity. When evaluating disparity in adverse impacts consider: • The level of adverse impact. (A lot or a little above the threshold.) • The severity of the impact. • Its frequency of occurrence.

9. The Disparate Impacts Analysis and the EJWG permit process recommendation • Review the 10 Step Process. (See page 18 of the Report.) • The Disparate Impacts Analysis is Step 6 of the 10 Step Process. “…6) determine if the impacts from the proposed activity likely will create a disparate impact on the community and, again utilizing case-by-case flexibility, conduct or require a disparate impact analysis.” (See pages 18 and 24 of the Report.)

10. Developing the Disparate Impacts Analysis • The following is an approach that can be utilized. • Steps for Identifying an EJ Community • Delineate the Area of Concern (AOC). Note the AOC for a Trigger Permit should be defined as all U.S. Census tracts contained entirely or in part within: • a circle defined by a radius of one-half mile from the center or boundary of proposed activity • Areas of impact for which DEP is authorized to require analysis. For example, .traffic corridors and groundwater plumes. • Other reasonably anticipated impacts associated with the proposed permit activity. (See page 17 of the Report.)

11. Developing the Disparate Impacts Analysis (CON’T) • Determine whether the AOC contains a minority or low-income community. (30% minority or 20% low-income. See pages 18 and 37 of the Report.) • If the AOC contains a minority or low-income community then identify the reference community (RC) for comparison against the AOC.

12. Developing the Disparate Impacts Analysis (CON’T) • Comparing the RC to the AOC • Step 1. Develop the Environmental load profile for the RC and the AOC. The profile may contain elements such as: • emissions/effluents: point and non-point sources of the proposed facility • Special focus on toxic pollutants • Existing cluster of nearby sources • Superfund sites

13. Developing the Disparate Impacts Analysis (CON’T) • Comparing the RC to the AOC • Step 1 continued. Develop the Environmental load profile for the RC and the AOC. The profile may contain elements such as: • Environmental indicators such as ambient air quality data, water quality data, soil concentrations • Health data that indicates abnormal levels of clusters of diseases, particularly environmentally influenced diseases. Such data may indicate health risks, which the proposed facility could exacerbate. • Quality of life factors: odors, noise, increased vehicular traffic and decreased property values. • Proximity to sensitive sub-populations. (For example, hospital, schools, etc.)

14. Developing the Disparate Impact Analysis (CON’T) • Step 2. The collected burden data for the environmental profile is evaluated in order to place the information into a format that can be compared from AOC to RC. • Step 3. Assess whether the environmental burden to the AOC is adverse and disproportionate when compared to the RC.

15. Addressing Authority Issues. • Currently, there is no consensus concerning DEP’s authority to conduct and use a disparate impacts analysis in DEP permitting decisions. • The Internal Work Group agrees that additional authority is needed to clarify the issue. • Time considerations for developing a new regulation or statute should be identified.

16. Next Steps. • What steps will EJAB take? For example, should a subcommittee of EJAB work with the Internal Work Group to develop the Disparate Impacts Analysis proposal?

17. Conclusion • DEP is committed to addressing disparate impacts. • EJAB is needed to help DEP address this difficult issue. • Today we should begin developing a joint plan to move forward on this issue.