On November 15, 2023, the Environmental Protection Agency (“EPA”) announced that it was opening a 60-day public comment period as it considers updates it plans to make to its document entitled: Technical Guidance for Assessing Environmental Justice in Regulatory Analysis (the “Guidance Document”). Public Comments need to be submitted by January 15, 2024.

It is important to understand that this Guidance Document is not a regulation, but businesses with an environmental aspect (e.g. manufacturers, waste processors, etc) should be aware of the key aspects of these materials, if only for the purpose of gaining insight on how to successfully work with the EPA in resolving environmental concerns in an effective and efficient manner.

By way of background, the initial version of this Guidance Document was first published in 2016. According to the EPA, the purpose of this update is:

[T]o reflect the state of the science; new peer-reviewed agency guidance; and new terminology, priorities, and direction, including Executive Order 14096. The purpose of this guidance is to outline analytic expectations and discuss technical approaches and methods that can be used by agency analysts to evaluate EJ concerns for regulatory actions. This technical guidance builds on the EPA’s experience in evaluating environmental justice concerns within the rulemaking analytic process and underscores the EPA’s ongoing commitment to ensuring the just treatment and meaningful involvement of all people with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.

The Guidance Document is currently 130 pages long and filled with technical considerations and challenging guidance for both the private businesses and agency officials. However, while these are not enforceable rules, the EPA explicitly encourages senior EPA managers to: “find this document useful for understanding what role analysis can play in ensuring that [Environmental Justice] concerns are appropriately considered and addressed in the development of regulatory actions. In other words, the EPA encourages its regulators to consider the Guidance Document as they develop regulations and enforce those regulations.

Therefore, as the EPA continues to move forward with using Environmental Justice as a marker and guideline to measure “success” businesses (particularly those that interact with or potentially interact with the EPA) should be aware of some of the basic strategies contained in the Guidance Document.

How This Document Will Be Used By the EPA’s Analysts

The Guidance Document makes the four overarching recommendations to its analysts:

  1. While analysts should use best professional judgement to decide on the type of analysis that is feasible and appropriate, when risks, exposures, outcomes, or benefits are quantified, some level of quantitative Environmental Justice analysis is recommended.
  2. Analysts should integrate Environmental Justice into the planning of a risk assessment conducted for the regulatory action.
  3. Analysts should strive to characterize the distribution of risks, exposures, or outcomes within each population group, not just average effects.
  4. Analysts should follow best practices appropriate to the analytic questions at hand.
  5. As relevant, analysts should consider any economic challenges that may be exacerbated by the regulatory action for relevant population groups of concern.

A substantial portion of the Guidance Document provides additional information, metrics, and considerations by which the EPA hopes to “guide” its analysts in these matters.

What Businesses Should Consider in Light of this Guidance

Business owners often do not have the extensive resources required to navigate the time-consuming, expensive aspects of interacting with a government agency such as the EPA. However, it may be beneficial to take some preemptive steps on the front end in order to avoid unwanted repercussions on the back end. In effect, by taking small, proactive steps to implement at least some of this guidance, small businesses can attempt avoid attracting the EPA’s unwanted attention and unwarranted scrutiny.

  1. Be aware that Environmental Justice is now a factor and consideration routinely utilized by the EPA;
  2. Have an extensive understanding of what your business needs to do to comply with any applicable environmental regulations and comply with them;
  3. Relatedly, be aware of the constant evolving regulatory environment and potential hire an environmental lawyer to stay abreast of changes that impact your business;
  4. Engage with the community in which you operate. Businesses with environmental aspects to their business (particularly if those aspects could be perceived as adverse to the health of the community) should attempt to be a good corporate citizen by working with local leaders to improve communication and consider feedback; and
  5. Finally, if something goes wrong and there is an environmental emergency, having a strong response plan will not only reduce long-terms costs it will demonstrate goodwill

While this Guidance Document does not have the force of law, the EPA encourages its officials and private businesses to implement its guidance. However, because of this encouragement, businesses can expect the EPA to consider these recommendations when it conducts analysis and as it develops more regulatory framework in the context of this Guidance Document.

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