										Richard Grow
                                                      Berkeley, CA
                                                      August 14, 2023


Comments:	Proposed approval of San Joaquin Valley PM plan.
      FR 88 45276; July 14, 2023
      Docket ID No. EPA-R09-OAR-2023-0263
      
Subject: Civil Rights and EPA's Proposed Approval of San Joaquin State Implementation Plan.

These comments address the treatment of the issues of civil rights and environmental justice in EPA's July 14, 2023 proposed approval of the San Joaquin Valley state implementation plan (SIP) for attainment of the 1997 annual fine particulate matter (PM) standard. The comments are directed in particular at EPA's decision to accept the California Air Resources Board (CARB) submission as meeting the requirements Section 110(a)(2)(E) of the Clean Air Act as they interact with Title VI of the Civil Rights Act of 1964.

In accepting CARB's vague, aspirational and misleading "assurances" of compliance with the Civil Rights Act EPA has missed an opportunity to live up to the commitments of the Biden administration and EPA Administrator Regan to prioritize environmental justice and civil rights. To duck this opportunity 2-1/2 years into this administration is to not only roll the dice and defer the rights of the people of the San Joaquin Valley, but also to send a signal to air and environmental agencies across the country that the EPA is less than serious about civil rights.

The plain language of Section 110(a)(2)(E ) of the Clean Air Act (CAA) requires that CARB provide "necessary assurances" that implementation of the submitted plan for the San Joaquin Valley will be carried out in compliance with Title VI of the Civil Rights Act of 1964. Yet neither CARB nor the San Joaquin Valley Air Pollution Control District have the policies and procedures in place to ensure such compliance, nor has EPA ever made such a determination with regard to either agency. To nevertheless find those agencies' general "assurances" as fulfilling the requirements of the law defies both common sense and due diligence in protecting the public health and civil rights of the people of the San Joaquin Valley.

EPA's continuing failure to issue CAA Section 110(a)(2)(E) Title VI guidance

In its prior proposal in October of 2022 to disapprove the San Joaquin Valley Plan EPA acknowledged problems demonstrating compliance with the requirements of Section 110(a)(2)(E) of the Clean Air Act as they interacted with those of Title VI of the 1964 Civil Rights Act. EPA acknowledged that in the 10 years since addressing the issue in a rulemaking in 2012, it had still never issued guidance or regulations. 

EPA then committed that "such guidance is forthcoming".

Eight months after that EPA commitment, CARB, having worked to remedy the air planning flaws cited in EPA's proposed disapproval and facing deadlines to remedy those flaws, attempted to also address the Clean Air Act 110(a)(2)(E) Title VI problems cited in the proposed disapproval.  However, as EPA remained mute on what CARB might do to address this problem, CARB resorted to a posture best characterized as "we've been really busy on environmental justice and have plans for Title VI."

Most disappointing more than CARB's fundamentally flawed and weak case for "assurances" is EPA's utter failure to issue any form of guidance, or even suggestions on what such assurances might consist of. EPA's default and de facto position regarding necessary assurances has been "anything will do", an unsurprising position among media program offices and in particular among the Agency "old guard" which for the most part has never understood or believed in the practical relevance of Title VI to the air program. But why such a stale and obsolete posture should prevail 2-1/2 years into the Biden/Regan administration remains dumbfunding.
 
The absence of guidance on this crucial requirement lying at the intersection of the Clean Air Act and Civil Rights Act is unjustifiable and irresponsible when the Agency could have simply insisted that a federally approvable air plan ought to be accompanied by:
 
 some sort of equity or environmental justice assessment, and
 consideration of alternative measures to lessen or eliminate any potentially discriminatory burdens revealed by that assessment. 
      
This basic environmental justice logic has been threaded throughout numerous EPA guidance and other documents for the past many years and administrations. It should not be much of a reach to bring it onto the 110(a)(2)(E) Title VI table. 

A short history of history of CAA Section 110(a)(2)(E) and its interaction with Title VI

EPA's first assertion of the relevance and applicability of 110(a)(2)(E) came in 1997 in the context of a SIP submittal from CARB. In response to the submittal, EPA's Region 9 office responded that "we believe that the Civil Rights Act and the Clean Air Act are intertwined" and that in light of issues raised in a complaint filed under Title VI there was "uncertainty" about whether the 110(a)(2)(E) requirements had been met and thus the SIP could not be approved. Contributing to the "uncertainty" was the fact that at the time EPA had still provided no guidance on Title VI in any form, the 1997 action preceding the issuance of "draft" guidance in 1998, followed by "interim" guidance in 2000, neither ever finalized. 

It should be noted that this refusal to approve the SIP was based not simply on the existence of the Title VI complaint, but of uncertainty regarding "issues" raised in the complaint. It should also be noted that the issues were indeed valid and significant having to do with the inherent distributional effects of an emissions trading program in the South Coast Air Basin.

Moving ahead to 2012, EPA Region 9 again found itself in a difficult position in trying to approve a SIP in the San Joaquin Valley and in the face of comments regarding Section 110(a)(2)(E) and Title VI. In the intervening 15 years EPA had still not issued any guidance on the issue. In order to move ahead with what it felt was a needed air plan, EPA cobbled together a collection of assertions that basically the state and local agencies were doing a lot, that there were no bright line regulations or guidance on 110(a)(2)(E), and ultimately, given the void in relevant guidance, it had "discretion" to approve the pot full of "assurances" as long as it could provide a "reasoned" rationale.

Moving ahead to 2022-2023, as noted above, EPA has still done nothing at all to fill this void in guidance on 110(a)(2)(E), yet quite a lot has changed on the civil rights side. But first a brief note on EPA's use and failure to use "discretion" in favor of civil rights.

Deference, discretion, environmental justice and civil rights.
EPA in its 2023 proposed approval of the San Joaquin Valley's Title VI "assurances" avails itself of its self-imposed low hurdle requirement to simply exercise "discretion", in accepting CARB's arm waving "assurances", in this case requiring EPA simply to provide a "reasoned judgement". As remarkably flimsy as this posture may be, it nevertheless begs the question of why wouldn't EPA exercise this same discretion in favor of a more rigorous posture as to what constitutes "necessary assurances". EPA obviously, even according to its own reasoning, has an expansive range of discretion. 

In its proposal EPA attempts to differentiate between (a) finding that the State has provided the necessary assurances required by CAA Section 110(a)(2)(E) that implementation of the submitted PM plan is not "prohibited" by Title VI and (b) stating that approval of the plan "does not constitute a formal finding of compliance with Title VI...". (88 FR 45321). To put forth such pettifoggery on an issue with such real life significance as civil rights protections in the San Joaquin Valley is a disservice to the hard earned credit EPA had garnered in the areas of environmental justice and civil rights during its first two years.

The question begged by the 2023 proposal is whether under a Biden/Regan EPA one could and should hope to see more interest in exercising that discretion in favor of environmental justice and civil rights than it exhibited 11 years earlier ? According to the proposal, the answer is no and EPA retreats to its 2012 posture. The point of these comments is that the Agency should change its answer to yes if if is to retain any credibility for having moved the civil rights issue ahead. Why not embrace rather than evade civil rights ?

CARB's "assurances"

In its notice EPA points to CARB's June 15, 2023 submittal of a "Title VI Supplement" and cites five areas  in support of finding CARB's "assurances" adequate (at 88 FR 45320-45321). Regarding these, the following comments and observations are offered.

 The State's "Civil Rights Policy and Discrimination Complaint Process", including "a process for filing a complaint of discrimination against CARB"
      
      Comment: Tellingly, in the CARB civil rights supplement it describes the complaint process solely in the future tense, i.e. the Civil Rights Officer "will" review the facts etc. The reason for the use of such conditional terms is that in fact CARB has no process or procedures for dealing with a complaint originating from outside of CARB. In discussions with CARB staff this Spring it was learned that thus far CARB had received only one such complaint, for which it adapted its process for internal complaints (i.e. EEO complaints) to process that complaint, finding no discrimination. 
      
      Further, the "Policy" cited by CARB and in EPA's notice was adopted in 2016, which is say prior to EPA's processing prior (to this 2023 action but subsequent to the 2016 policy) complaints against CARB and in which it had noted several procedural deficiencies.
      
      One has to be curious whether EPA accepted CARB's "assurances" at face value, or whether it did its own fact checking to ascertain the practical reality behind CARB's submission. If there is any documented support for this finding, EPA should make such technical support documents publicly available.

 Public engagement: "Early enhanced public engagement" for the SIP, "prioritized public participation", "soliciting public input" on statewide measures.

 AB 617 program.

 Racial equity assessment lens.

 Community air monitoring networks

The latter four areas of CARB effort (public engagement, AB 617 program, equity lens, community air monitoring) are all commendable features of an increasingly forward leaning environmental justice program. However, whether they might or will be applied in any sort of systematic manner to avoid actual disproportionate effects is not addressed at all by either CARB or the U.S. EPA. One reason for this appears to be that, at this point, CARB has yet to take or even commit to such a systematic approach.

Title VI and environmental justice. EPA's proposed action appears to be reverting to its prior long time posture of conflating the statutory requirements of Title VI with the largely policy-based and unenforceable imperatives of its EJ programs and policies, substituting procedural justice for substantive justice. CARB's own confusion on this is reflected in its 2016 Civil Rights Policy, in which it seems to acknowledge a core requirement of federal civil rights requirements in prohibiting "[u]sing criteria or methods of administering its program with the effect of discriminating against a user, or potential user, of the program offered by CARB", but then includes this only under its definition of "denial of fair and equal access." Thus CARB, as did EPA for so many years, has substituted procedural requirements for the more substantive core requirement of Title VI. Fair access is not the same as requiring a fair, or nondiscriminatory, result.

EPA's attempt to conflate environmental justice with civil rights in the context of fulfilling statutory civil rights requirements suffers from at least one major flaw. While environmental justice policies, measures and practice are indeed commendable, their statutory basis is much less exact than the requirements of civil rights. EPA's basic posture has been that agencies must "address" rather than resolve environmental justice issues. By way of contrast, to establish compliance with statutorily based and enforceable civil rights requirement, a party subject to those requirements should be able to show how it addresses those requirements systematically with a defined methodology. Indeed the core civil rights requirements at 40 CFR 7.35 require that entities subject to Title VI "...shall not use criteria or methods of administering its program or activity." (italics added.)

What has changed since EPA's 2012 CAA 110(a)(2)(E) finding ?

Since 2012 there have been numerous advances in the available methodologies and technical tools for evaluating whether recipient agency actions, policies or practices (i.e. "criteria or methods") may result in disproportionate impacts on populations protected under Title VI of the Civil Rights Act.

There is simply no excuse for not considering (nor requiring consideration of) whether a particular action of a recipient agency, whether issuing a permit, adopting a SIP or other action, is taking an action which could cause or contribute to a disproportionate impact on a protected population. The basic logic and methodology has been long established and substantially enhanced by further actions under the Biden/Regan administration. Whether these have been issued under the rubric of "environmental justice", "civil rights, "equity" etc. should be irrelevant when considering that there are in fact numerous tools and methodologies available. Among these are:

 Mapping tools including EJ Screen, CalEnviroScreen, etc.

 Guidance on development and approval of regulatory actions; this could include SIPs:

 2015: "Guidance on Considering Environmental Justice During the Development of Regulatory Actions", May, 2015. https://www.epa.gov/sites/default/files/2015-06/documents/considering-ej-in-rulemaking-guide-final.pdf

 2016: "Technical Guidance for Assessing Environmental Justice in Regulatory Actions", June, 2016. https://www.epa.gov/sites/default/files/2016-06/documents/ejtg_5_6_16_v5.1.pdf

 Legal Tools: "EPA Legal Tools to Advance Environmental Justice", May, 2022; https://www.epa.gov/system/files/documents/2022-05/EJ%20Legal%20Tools%20May%202022%20FINAL.pdf

Several of these are noted in EPA's notice at footnote 429 on page 88 FR 45320 and described by EPA as "resources of general applicability concerning Title VI obligations for recipients of federal financial assistance"(emphasis added). It is notable that while these resources been available for quite some time, it seems apparent that CARB availed itself of none of them in carrying out its programmatic responsibilities. One has to be curious whether EPA, in preparing this notice and noting these resources, inquired of CARB as to its awareness and/or use of these resources and, if there was a lack of such, whether finding CARB's assurances adequate was premature. It is this commenter's position that in fact the finding was substantially premature. 
The basic logic and methodology for addressing civil rights in permitting action was well laid out in EPA's August, 2022 document, "Interim Environmental Justice and Civil Rights in Permitting Frequently Asked Questions (FAQs)". While this document's stated purpose is with regard to permitting, the basic logic can and should readily be translated and applied to other agency actions including SIPs, planning etc. The document is available at: https://www.epa.gov/system/files/documents/2022-08/EJ%20and%20CR%20in%20PERMITTING%20FAQs%20508%20compliant.pdf.
As also noted in the 2023 proposal, EPA's Civil Right Office issued a Title VI "Toolkit and Chapter 1" in January, 2017. That same month the U.S. Department of Justice issued an update of its "Title VI Legal Manual". There has been no lack of available guidance and advice for any recipient of federal aid wanting to "assure" EPA of its commitment to not violating Title VI.

Adequacy of CARB "assurances"

EPA, while referring to its own previous arm-waving in 2012 regarding the adequacy of assurances with regard to Title VI, and engaging in further wanderings this time around, neglects a plain reading of its own 2013 guidance, to which it referred in its October 5, 2022 proposal for this action, and which suggested that, to meet the requirements of Section 110(a)(2)(E) a plan should include:

    "...detailed explanation of how the existing SIP...meets each of the applicable requirements of section 110(a)(2)(E)(i). This should include a description of the correlation between the requirements of this element and an equivalent set of statutory, regulatory, and/or nonregulatory provisions, as appropriate."

While such guidance may be unenforceable by the courts, EPA certainly has "discretion" to make a "reasoned judgement" to apply such a perspective in considering the adequacy of the San Joaquin Valley SIP's compliance with 110(a)(2) requirements. This could quite plausibly require a "detailed explanation" of the SIP submission's "correlation" with the requirements of Title VI.

More to the point of EPA's proposal to approve the CARB submittal, for the past 10 years CARB has agreed to terms and conditions in accepting federal assistance from EPA that CARB:

    "...has an affirmative obligation to implement effective Title VI compliance programs and ensure that its actions do not involve discriminatory treatment and do not have discriminatory effects even when facially neutral. The recipient must be prepared to demonstrate to EPA that such compliance programs exist and are being implemented or to otherwise demonstrate how it is meeting its Title VI obligations."
 
This would appear to be a minimum, as well as "reasoned", criteria for accepting CARB's "assurances". Where then is CARB's demonstration, to which it has agreed for the past 10 years, "...that such [Title VI} compliance programs exist and are being implemented or to otherwise demonstrate how it is meeting its Title VI obligations" ?  Where is EPA's review of such demonstration, and where and when will EPA's review of that demonstration be available for public review and comment ? 

It is simply unacceptable for EPA to even attempt to avail itself of the same rationale as used in 2012 for this action taking place in 2023, three years after the murder of George Floyd and under the a Biden/Harris/Regan administration which had pledged to prioritize environmental justice and civil rights. In avoiding application of meaningful rigor to this plan submission, EPA arguably is itself applying "criteria or methods" with potentially discriminatory effect on the people of the San Joaquin Valley for whom civil rights are supposed to be protected by the EPA. 

Conclusion
In conclusion, it is obvious that EPA's rationale for accepting CARB's submission as adequate with regard to "necessary assurances" is one forced by the Agency's hesitation to hold up approval of the San Joaquin Valley clean air plan based on civil rights concerns. This follows from EPA's having failed to issue guidance on Section 110(a)(2)(E) of the Clean Air Act with regard to Tile VI, some 11 years after its first fumbling attempt at conjuring such a rationale, 26 years after in this same EPA Region, EPA in fact rejected a CARB submission based exactly on this same Section 110(a)(2)(E) Title VI requirement. While the principled stance taken by EPA in 1997 was in a different air basin, the 2012 action and the currently proposed one are with regard to the San Joaquin Valley in the same state of California . EPA should consider whether it views civil rights as applicable differently in the San Joaquin Valley than elsewhere.
EPA should withhold finding that the State has provided adequate necessary assurances for the purposes of CAA Section 110(a)(2)(E). EPA should recognize that the circumstances surrounding its 2012 finding for the same air basin have substantially changed over the subsequent 11 years, and proceed with issuing guidance taking into account developments since that time both within the Administration and EPA and in the broader societal context in which EPA is currently acting.   
Finally we note that in the past the Agency has taken actions characterized as "conditional approvals". The Agency should consider the option of conditionally approving the San Joaquin Valley submittal with regard to the requirements which it is deemed to have met, accompanied by an enforceable condition requiring CARB, and the San Joaquin Valley, to bring their programs into complete and demonstrated compliance, as required by statute and the terms and conditions of EPA's grants to CARB, with Title VI within a defined time frame, for instance one year.  

Respectfully,

Richard Grow
U.S. EPA Retired
Berkeley, California

