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Statement of

Norris McDonald, President

African American Environmentalist Association

Before the

New York Department of Environmental Conservation

Office of Environmental Justice

on

Environmental Justice Proposed Regulations

 

Notice of Proposed Addition of 6 NYCRR Part 487, Analyzing Environmental Justice Issues in Siting of Major Electric Generating Facilities Pursuant to Public Service Law Article 10

 

at the


NYS Department of Public Service

90 Church Street, 4th Floor

New York, NY 10007

 

Tuesday, March 6, 2012

 

 

 

My name is Norris McDonald and I am founder and president of the African American Environmentalist Association (AAEA). My comments are on the Environmental Justice Proposed Regulations related to issues in the siting of major electric generating facilities pursuant to Public Service Law Article 10.

The African American Environmentalist Association was founded in 1985 and is a national, nonprofit environmental organization dedicated to protecting the environment, enhancing human, animal and plant ecologies, promoting the efficient use of natural resources and increasing African American participation in the environmental movement. AAEA is the outreach arm of the Center for Environment, Commerce & Energy.

AAEA's main goals are to deliver environmental information and services directly into communities. We work to clean up neighborhoods by implementing toxics education, energy, water and clean air programs. AAEA includes an African American point of view in environmental policy decision-making and resolves environmental racism and injustice issues through the application of practical environmental solutions. We are the nation's oldest African American-led environmental organization and we welcome all races interested in working for improvements in the African American community.

We commend the New York State Legislature for passing a new Article 10 law. We thank Governor Andrew Cuomo for signing the legislation into law. We commend the New York State Department of Public Service for promulgating Article 10 regulations. We commend the New York State Department of Environmental Conservation (DEC) and the Office of Environmental Justice (EJ) for promulgating the Article 10 environmental justice regulations.

AAEA recommends that the New York State Department of Environmental Conservation (DEC) should replace the one-half mile radius designated in the proposed regulation as the Impact Study Area to be two (2) miles. Section 487.4: Defining the Impact Study Area, should be modified to state that: (a) At a minimum, the Impact Study Area must be the geographic area that is encompassed within a two mile radius around the proposed location of the facility. We believe the one-half mile area is too small and will limit the effectiveness of the environmental justice analysis. The expanded impact area designation is needed in order to include more facilities in the assessment of whether an area suffers from disproportionate environmental impacts. Although the applicant is given the option of increasing the Impact Study Area based on site-specific factors, we believe the regulation should specifically refer to the two mile radius. We also recommend the two mile designation for the alternate locations.

The Article 10 law allows for, 'A cumulative impact analysis of air quality within a half-mile of the facility, or other radius as determined by standards established by Department of Environmental Conservation regulations..."

AAEA is concerned about the proposed approach for the evaluation of a potentially significant and adverse disproportionate environmental impact area. The evaluation is left up to the applicant. We are concerned that there are no established criteria proposed in the proposed regulation that can definitively evaluate a 'tipping point' that would trigger rejection of the application based on significant and adverse disproportionate environmental impacts. We are concerned because even the DEC EJ Work Group had trouble agreeing upon a disproportionate impact methodology. If these professional EJ participants had trouble establishing disproportionate impact methodology, we are concerned that applicants will have the capacity to provide an adequate framework for the EJ evaluation.

A DEC EJ Work Group was unable to agree on a disproportionate impact methodology. The CP-29 description stated, "Although the Advisory Group report recommended a basic methodology for conducting such an analysis, further definition and specific criteria are needed..."[1] AAEA-NY also submitted comments to the DEC Work Group Final Report that indicated the difficulty in establishing research and policy parameters for determining 'disproportionate impact.' The AAEA-NY comments stated:

AAEA is disappointed that the Work Group was unable to reach a consensus on the most important items being considered by the review of the environmental impact assessment process.

The Work Group failed to reach consensus on the following items:

         How to conduct a disproportionate impact analysis

         Whether or not or to what extent existing conditions or burdens should be incorporated into a project-specific disproportionate adverse impact analysis.[2]

AAEA also developed an 'environmentally disadvantaged community,' in proposed legislative language that was included in the Environmental Justice Act that we drafted as a member of the Environmental Justice Coalition.[3] The description states:

(15) The term `environmentally disadvantaged community' means an area within 2 miles of the borders of a site on which a facility for the management of solid waste (including a facility for the management of hazardous waste) is proposed to be constructed and in which both of the following conditions are met, determined using the most recent data from the Bureau of the Census:

(A)(i) The percentage of the population consisting of all individuals who are of African, Hispanic, Asian, Native American Indian, Pacific Island, or Native Alaskan ancestry is greater than either--

(I) the percentage of the population in the State of all such individuals, or

(II) the percentage of the population in the United States of all such individuals; or

(ii)(I) twenty percent or more of the population consists of individuals who are living at or below the poverty line, or

(II) the area has a per capita income of 80 percent or less of the national average, for the most recent 12-month period for which statistics are available.

(B) The area contains one or more of the following:

(i) A facility for the management of hazardous waste that is in operation.

(ii) A facility for the management of hazardous waste that is no longer in operation but that formerly accepted hazardous waste.

(iii) A site at which a release or threatened release of hazardous substances (within the meaning of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980) has occurred.

(iv) A facility for the management of municipal solid waste.

(v) A facility whose owner or operator is required to submit a toxic chemical release form under section 313 of the Emergency Planning and Community Right-To-Know Act of 1986 (42 U.S.C. 11023), if the releases reported on such form are likely to adversely affect the human health of the community or portion of the community, as determined by the entity that would be appropriate under subsection (a)(2) if a petition were filed with respect to the facility.

We are providing this language for information purposes for the DEC Office of Environmental Justice. We established the 2-mile radius in the development of our proposed environmental justice legislation. (See Attachment 1)

Instead of a criterion or criteria that would trigger rejection of the application based on disproportionate impact, the Section 487.10 Evaluation of Significant and Adverse Disproportionate Environmental Impacts (d) states:

In the event that the applicant's evaluation indicates that the proposed facility is likely to result in or contribute to any significant and adverse disproportionate environmental impact in the Impact Study Area during its construction or operation, the applicant shall identify the specific measures it will take to avoid, offset or minimize each impact for the duration that the Certificate is issued to the maximum extent practicable using verifiable measures. The applicant shall include in its evaluation a discussion of the effect these measures would have on the applicant's conclusions about any significant and adverse disproportionate environmental impacts in the Impact Study Area. The applicant shall avoid any disproportionate impact to the maximum extent practicable, or, if the applicant cannot avoid the impact, the applicant shall minimize the impact to the maximum extent practicable. If the impact cannot be avoided or minimized, the applicant shall offset the impact, with priority given to offset measures that will benefit the area where the degree of significant and adverse disproportionate impact is greatest.

We understand that this is the legislative prescription, but clearly the legislative intent is to provide protection for vulnerable communities. These communities cannot be protected if they are already disproportionately impacted and other emitting facilities are sited and operated in the vulnerable area. The applicant is simply instructed to 'avoid, offset or minimize each impact.' If the applicant cannot do this then they are instructed to 'offset measures that will benefit the area.' The proposed regulation does not recommend the type of offset measures. How does the applicant offset criteria and non-criteria air pollutants? The applicant could propose just about anything if it is not prescribed in the regulation. We believe there is room in the statute to provide a provision in the regulation that if the applicant cannot avoid or minimize the impact and if there are no reasonable offsets, then the application should be denied. This is fundamental to the idea of protecting communities that are disproportionately impacted by pollution.

We are concerned that ozone is not included as part of the cumulative air impact analysis. Although the other five criteria pollutants are included, ozone is probably the most important pollutant in terms of health impacts as related to environmental justice. The proposed regulation states that, "The procedures identified in 6 NYCRR Part 231 for assessing ozone precursor emissions will satisfy the requirement of this section for the cumulative impact analysis." We disagree. We understand that the procedure is fine within the context of evaluation under the federal New Source Review Program, but it does not include a framework for considering environmental justice. Thus, by separating out this important pollutant, it could undermine the effectiveness of the cumulative impact analysis. Because ozone is excluded in the Article 10 law, we would suggest that the applicant utilize the ozone precursors of volatile organic compounds and oxides of nitrogen to assess equivalent effects.

AAEA is also concerned that the New Source Review Program has been plagued by litigation and we do not have confidence in this program. The regulations are also constantly shifting from administration to administration. One primary source of conflict has been whether a modification is a major modification. NSR is a permitting process that requires industry to undergo a pre-construction review to determine the appropriate air pollution controls. NSR consists of two components: attainment NSR (a.k.a. prevention of significant deterioration (PSD)) and non-attainment NSR.

Our specific concern about the ozone exclusion in the regulation is the use of the phrase 'will satisfy' the requirement of this section for the cumulative impact analysis. Although the applicant will conduct an analysis under the procedures specified in 6 NYCRR Part 231, we are concerned that the analysis of smog will not be sufficient to adequately address disproportionate impact issues. Ozone, particulate matter less than 10 microns (PM-10), and particulate matter less than 2.5 microns (PM-2.5) are currently designated as non-attainment contaminants in New York State. Ozone is regulated by its precursors; volatile organic compounds (VOC) and oxides of nitrogen (NOx). The Department's Part 200 regulation defines the specific areas of the State that are designated as non-attainment for these contaminants.[4]

According to the Environmental Protection Agency (EPA), the metropolitan region of New York City has consistently failed to meet the clean air standards for smog-causing ozone. The DEC is required to create a plan for New York to meet the standards. Smog is a public health concern because it causes respiratory illness and aggravates asthma. Smog is formed on hot, sunny days, when sunlight causes nitrogen oxides (NOx) and volatile organic compounds (VOCs) to react and form ozone. These pollutants come from cars, trucks, diesel construction equipment, power plants, refineries, other large industrial facilities and from paints and some consumer products. When inhaled, ozone can make people more susceptible to respiratory infection, result in inflammation of lung tissue, aggravate existing respiratory diseases such as asthma, and lead to increased hospital admissions and emergency room visits. Ozone can cause significant decreases in lung function and increased respiratory symptoms.

Environmental justice areas are already disproportionately impacted by a large number of pollution sites. The elderly and children are particularly susceptible to exposure to smog. In April 2007, when announcing PlaNYC 2030, Mayor Michael Bloomberg referred to New York City's air quality and asthma problems:

"In parts of the Bronx, Brooklyn, and Harlem, children are hospitalized for asthma at near four times the national average. Four times! We cannot turn a blind eye to this outrage. All our children deserve a healthy start in life. Many people call that environmental justice; I simply call it the right thing to do."[5]

In May 2006, Council Member Jose Serrano spoke on behalf of the Asthma Task Force, stating, "Children in the South Bronx are five times more likely to be hospitalized because of respiratory ailments. Council Member Serrano added, "Fragile communities [such as Hunts Point] are at a greater risk because of pollution caused by power plants and other large emission sites."[6]

Our point is that, from an environmental justice perspective, major areas of certain boroughs would appear to be off limits for consideration of locating new power plants. Yet the proposed regulation allows location of such facilities if the applicant proposes to minimize or offset the impact to the maximum extent practicable. The point of mitigating environmental injustice is to prevent additional pollution sites from being located in the environmental justice area. This regulation appears to have a loophole for that consideration.

Negative health effects are central to the argument that disproportionate environmental impacts lead to disproportionate health impacts, which should be the primary concern of the siting board. For instance, the percentage of African American and Hispanics living in areas that do not meet national standards for air quality is considerably higher than that of whites. Correspondingly, respiratory ailments affect African Americans at rates significantly higher than whites. Asthma attacks, for example, send African Americans to the emergency room at three times the rate of whites (174.3 visits per 10,000 people for African Americans versus 59.4 visits per 10,000 people for whites), and African Americans are hospitalized for asthma at more than three times the rate of whites (35.6 admissions per 10,000 people for African Americans versus 10.6 admissions for every 10,000 people for whites). Similarly, the death rate from asthma for African Americans is almost three times that of whites (38.7 deaths per million versus 14.2 deaths per million).[7]

In New York City, it is estimated that there are 2,290 deaths, 1,580 hospitalizations, 546 asthma-related emergency rooms visits, 1,490 cases of chronic bronchitis, and 46,200 asthma attacks yearly attributable to power plant pollution[8] The New York City Area has also been ranked as one of the top five U.S. metropolitan areas for particulate air pollution. And again, these adverse effects disproportionately affect minority communities. In one study, nonwhites in New York City were found to be hospitalized twice as many times as whites on days when ozone levels were high. Another study found that, of the 23 counties in New York State that fail to meet Federal air pollution standards, 37.7% of them are populated by people of color.[9]

That African Americans and other minorities are disproportionately affected by air pollution in New York is not surprising when considering the fact that the majority of air polluting power plants in the New York metropolitan area are located in African American and other minority communities. Based on figures from the 2000 U.S. Census, only 12.3% of New York State is identified as being African American, and 29.4 % of the total population is classified as a minority. However, in communities that are predominantly minority, such as Queens, the Bronx, and Brooklyn, there are a disproportionate number of fossil-fuel power plants emitting criteria air pollutants. For example, there are approximately 1,563,400 people of color, 271,247 children living in poverty, and 40,248 children who suffer from pediatric asthma within 30 miles of a coal-fired power plant bordering the New York City metropolitan area. In the Bronx, which is 35.6% African American and 88% minority, there are two power plants. In Brooklyn, which is 36.4% African American and 64% minority, there are seven power plants. In Queens, which is 20% African American and 63.2% minority, there are six power plants. Queens is also ranked among the 10% of U.S. counties in terms of its exposure to criteria air pollutants, and is one of two city boroughs that violates federal standards. In total, there are 24 power plants in the New York Metropolitan area, only a handful of which are in areas where minorities do not comprise the majority of the population.[10]/[11]

AAEA concurs with the 6 miles radius for any major stationary source in the cumulative impact analysis of air quality. AAEA concurs with the comprehensive demographic, economic and physical descriptions. AAEA particularly likes including New York City as a whole being used as a third Comparison Area if the Impact Study Area is within the City of New York.

Finally, from a clean air environmental justice perspective, AAEA is concerned about the potential closure of Indian Point nuclear power plant. If this plant is closed, there will be significant pressure to replace this emission free facility with fossil fuel power plants. This will only increase the burdens on environmental justice areas if replacement power is located in these areas.

 

 

Attachment 1

Environmental Justice Act of 2012 (Introduced in Senate/House)
S./H.R.________

112th CONGRESS

2nd Session

S./H.R. ________

To establish a program to ensure nondiscriminatory compliance with environmental, health, and safety laws, to ensure equal protection of the public health and to promote economic development in underdeveloped communities. To require Federal agencies to develop and implement policies and practices that promote environmental justice, and for other purposes.

IN THE SENATE OF THE UNITED STATES

November___ (legislative day, November___), 2012

Mr./Ms________________ (for himself, Ms./Mr__________________, and Mr./Ms.__________________________) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works/Committee on Energy and Commerce


A BILL

To establish a program to ensure nondiscriminatory compliance with environmental, health, and safety laws, to ensure equal protection of the public health and to promote economic development in underdeveloped communities. To require Federal agencies to develop and implement policies and practices that promote environmental justice, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Environmental Justice Act of 2012'.

SEC. 2. FINDINGS.

The Congress finds that--

      1. EPA does not have the authority to prevent the construction of a proposed polluting facility. EPA does not have the authority to approve the construction of a proposed nonpolluting facility. If subsequent to the issuance of an operating permit the EPA were to find a civil rights violation, the EPA would have no power to stop the operation or even to provide any other form of relief to the victimized community.
      2. EPA's only remedy against an environmental civil rights violating state is to attempt to cut off financial assistance to the violating state. EPA has never requested a cut-off of financial assistance to a state for such a violation. Moreover, the cut off of such funds can only occur if the U.S. Congress does not object.
      3. Courts have ruled that victims of environmental racial discrimination have no standing to privately enforce federal agency civil rights regulations.
      4. A community may file a civil rights complaint with the EPA only after a state has already issued a permit to operate the facility being opposed.
      5. Of the 130 environmental justice complaints filed by minority communities across the nation between 1992 and 2002, only four (4) have been fully investigated and EPA has ruled against all of those complainants. And even if EPA ruled in favor of such complainants for an environmental civil rights violation, the agency would be powerless to provide any relief to the complaining community.
      6. Although environmental and health data of toxic chemical releases are not routinely collected and analyzed by income and race, racial and ethnic minorities and lower income Americans may be disproportionately exposed to toxic chemicals in their residential and workplace environments.
      7. Victims of civil rights discrimination may file a complaint with the EPA. (40 C.F.R. 7.120)
      8. The EPA will accept environmental civil rights complaints but only after a State has granted an operating permit. (40 C.F.R. 7.120 (b)(2))
      9. The EPA does not investigate whether State departments of environment are complying with its civil rights obligation. (40 C.F.R. 7.80)
      10. The EPA cannot provide any effective relief to a civil rights complainant under its own regulations.
      11. The sole relief available for victims of environmental civil rights violations is through a private action against a state if the community can prove intentional discrimination. To date, no such action has been successful. [Examples]

SEC. 3. PURPOSES AND POLICIES.

The purposes of this Act are--

SEC. 4. DEFINITIONS.

For the purposes of this Act:

(1) The term 'Administrator' means the Administrator of the United States Environmental Protection Agency.

(2) The term 'Affected Area' means any area determined by EPA, pursuant to other provisions of this Act, that suffers disproportionately from negative health, environmental or economic impacts.

(3) The term 'Protected Area' means any Affected Area protected by local community designation and supported by EPA analysis.

(4) The term 'Brownfield' means any previously developed and currently polluted area selected by local community designation and supported by EPA analysis that is targeted for redevelopment.

(5) The term 'Pollution Releasing Facility' (PRF) means any facility that is permitted on the following list: Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), Resource Conservation Recovery Act (RCRA-Large), Clean Air Act, Clean Water Act, Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), Emergency Planning and Community Right-to-Know Act of 1986 or any dangerous undocumented source of pollution that is determined by the local community and confirmed by EPA. Specifically, any facility:

(A) subject to reporting requirements under the Emergency Planning and Community Right-to-Know Act of 1986;

(B) that generates, treats, stores or disposes of a hazardous waste as defined in section 3001 of the Solid Waste Disposal Act;

(C) subject to section 112 or 129 of the Clean Air Act;

(D) subject to sections 307 or 311 of the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.);

(E) subject to the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. 136 et seq.); or

(F) subject to the requirements concerning material safety data sheets for hazardous chemicals under the Occupational and Safety and Health Act of 1970 (15 U.S.C. 615 et seq.). For the purpose of this Act the term `toxic chemical facility' shall include any facility that releases a toxic chemical.

(6) The term 'Nonpollution Releasing Facility' (NRF) means any facility that is not permitted on the following list: CERCLA, RCRA (Large), Clean Air Act, Clean Water Act, FIFRA, Emergency Planning and Community Right-to-Know Act of 1986 or is not an undocumented source of pollution as determined by the local and confirmed by EPA. An NRF does not include specific items listed under Section 4, Part 5.

(7) The term `toxic chemicals' means--

(A) all hazardous substances as defined in section 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. 9601(14);

(B) all materials registered pursuant to the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. 136 et seq.);

(C) all chemicals subject to section 313 of the Emergency Planning and Community Right-to-Know Act of 1986;

(D) all contaminants identified in the Safe Drinking Water Act (42 U.S.C. 300g-1);

(E) all chemicals listed by the National Toxicology Program as known or probable human carcinogens; and

(F) all materials subject to the requirements concerning material safety data sheets for hazardous chemicals under the Occupational and Safety and Health Act of 1970 (15 U.S.C. 615 et seq.).

(8) The term `release' shall have the same meaning as used in section 101(22) of the Comprehensive Environmental Response, Compensation and Liability Act of 1990 as amended by the Superfund Amendments and Reauthorization Act of 1986, and shall also include any release which results in exposure to persons within a workplace.

(9) The term `toxic chemical facility' means any facility means any facility listed under Pollution Releasing Facility as defined in Sec. 4 (5).

(10) The term 'environmental justice' means the fair treatment of people of all races, cultures, and socioeconomic groups with respect to the development, adoption, implementation, and enforcement of laws, regulations, and policies affecting the environment.

(11) The term `fair treatment' means policies and practices that will minimize the likelihood that a minority, low-income, or Native American community will bear a disproportionate share of the adverse environmental consequences, or be denied reasonable access to the environmental benefits, resulting from implementation of a Federal program or policy.

(12) The term `Federal agency' means-

(A) each Federal entity represented on the Working Group;

(B) any other entity that conducts any Federal program or activity that substantially affects human health or the environment; and

(C) each Federal agency that implements any program, policy, or activity applicable to Native Americans.

(13) The term `Working Group' means the interagency working group established by Section 11.

(14) The term `Advisory Committee' means the advisory committee established by Section 13.

(15) The term `environmentally disadvantaged community' means an area within 2 miles of the borders of a site on which a facility for the management of solid waste (including a facility for the management of hazardous waste) is proposed to be constructed and in which both of the following conditions are met, determined using the most recent data from the Bureau of the Census:

(A)(i) The percentage of the population consisting of all individuals who are of African, Hispanic, Asian, Native American Indian, Pacific Island, or Native Alaskan ancestry is greater than either--

(I) the percentage of the population in the State of all such individuals, or

(II) the percentage of the population in the United States of all such individuals; or

(ii)(I) twenty percent or more of the population consists of individuals who are living at or below the poverty line, or

(II) the area has a per capita income of 80 percent or less of the national average, for the most recent 12-month period for which statistics are available.

(B) The area contains one or more of the following:

(i) A facility for the management of hazardous waste that is in operation.

(ii) A facility for the management of hazardous waste that is no longer in operation but that formerly accepted hazardous waste.

(iii) A site at which a release or threatened release of hazardous substances (within the meaning of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980) has occurred.

(iv) A facility for the management of municipal solid waste.

(v) A facility whose owner or operator is required to submit a toxic chemical release form under section 313 of the Emergency Planning and Community Right-To-Know Act of 1986 (42 U.S.C. 11023), if the releases reported on such form are likely to adversely affect the human health of the community or portion of the community, as determined by the entity that would be appropriate under subsection (a)(2) if a petition were filed with respect to the facility.

(16) The term `management', when used in connection with solid waste (including hazardous waste), means treatment, storage, disposal, combustion, recycling, or other handling of solid waste, but does not include any activities that take place in a materials recovery facility or any other facility that prepares, transfers, or utilizes nonhazardous recyclable materials for purposes other than energy recovery.

(17) The terms `release' and `contaminant' have the meanings prescribed by the Administrator for purposes of this section.

SEC. 5. IDENTIFICATION OF AFFECTED AND NONAFFECTED AREAS

(a) DETERMINATION OF IMPACTED AND NONIMPACTED AREAS- Within six months after the date of enactment, the Administrator in consultation with the Agency for Toxic Substances and Disease Registry, Centers for Disease Control, the National Institute for Environmental Health Sciences, the National Center for Health Statistics and the Bureau of the Census, shall determine the most appropriate designation of health-related Affected and Nonaffected Areas, either census blocks, census tracks, neighborhoods, communities, cities, counties, States or other appropriate geographic unit. The Administrator shall determine the most appropriate designation of environmentally Affected and Nonaffected Areas, either census blocks, census tracks, neighborhoods, communities, cities, counties, States or other appropriate geographic unit. The Administrator in consultation with the Department of Commerce, Department of Labor, Department of Treasury and the Bureau of the Census, shall determine the most appropriate designation of economically Affected and Nonaffected areas, either census blocks, census tracks, neighborhoods, communities, cities, counties, States or other appropriate geographic unit.

(b) PUBLICATION OF LIST- Within twelve months after the date of enactment of this Act, the Administrator shall publish a list, in rank order, of the total demographic of illnesses, weight of toxic chemicals released in each county and level of economic development for the established geographic unit in the United States during the most recent five-year period for which data are available. If less than five years of data are available the Administrator shall use available data until further information is reported.

(c) COMPILATION OF LIST- (1) In compiling the list under subsection (a), the Administrator shall consider and utilize all appropriate and available data compiled pursuant to any health, environmental or economic regulatory authority and other sources, including available data on the presence of lead-based paint and toxic chemicals from mobile vehicles.

(2) For each appropriate geographic unit the Administrator shall calculate and compile in a data base--

(A) the total weight of toxic chemicals released into the ambient environment;

(B) the total weight of toxic chemicals released into each environmental media (air, water, land, workplace); and

(C) the total weight of each toxic chemical released into the ambient environment, and into each environmental media (air, water, land, workplace);

and whenever possible shall adjust the estimates of each of the items in subparagraphs (A) through (C) to account for the severity of health issues, toxicity of the toxic chemicals and level of economic development.

(3) Within six months after the date of enactment the Administrator shall review the methodology used to compile and summarize information collected under section 313 of the Emergency Planning and Community Right-to-Know Act, and publish for public comment any proposed changes to the methodology necessary to calculate and compile the information required in paragraph (1).

(4) The Administrator shall revise and republish the list described in subsection (c) by the date that is five years after the date of initial publication, and not less frequently than every five years thereafter, using data compiled during the preceding five-year period.

(d) AFFECTED AND NONAFFECTED AREAS- (1) Within twelve months after the date of enactment, and every five years thereafter, the Administrator shall publish a list of the one hundred counties or other appropriate geographic unit with the highest and lowest total illnesses, toxic chemical releases and economic development based on the list published in subsection (b). Such counties or other appropriate geographic unit shall be designated as `Affected or Nonaffected Areas'.

SEC. 6. TECHNICAL ASSISTANCE GRANTS.

(a) IN GENERAL- Subject to appropriations, and in accordance with rules promulgated by the Secretary of Health and Human Services in consultation with the Administrator, the Secretary may award a grant to any individual or group of individuals who may be affected by a release or threatened release of a toxic chemical from any toxic chemical facility in an environmental high impact area.

(b) GRANT REQUIREMENTS- (1) A grant awarded under this section shall--

(A) be designed to facilitate access by representatives of environmental high impact areas to the activities that involve public participation under this Act and any other related law.

(B) be used to obtain technical assistance; and

(C) be in an amount not to exceed $50,000.

(2) Each grant recipient shall be required, as a condition of the grant, to pay a non-Federal share equal to 20 percent of the grant amount. The Administrator may waive the 20 percent contribution requirement if the grant recipient demonstrates financial need to the satisfaction of the Administrator. Not more than one grant may be made with respect to each environmental high impact area for the period of a grant (as determined by the Administrator). At the end of the period, a grant may be renewed if the Administrator determines that the renewal is necessary to facilitate public participation.

(3) Grants under this subsection shall be considered to be grants under section 117(e) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 as amended by the Superfund Amendments and Reauthorization Act of 1986, and shall be funded in the same manner.

SEC. 7. PETITION RELATING TO ENVIRONMENTALLY DISADVANTAGED COMMUNITIES.

(a) RIGHT TO PETITION- (1) Any citizen residing in a State in which a new pollution releasing facility for the management of solid waste (including a new facility for the management of hazardous waste) is proposed to be constructed in an environmentally disadvantaged community may submit a petition to the appropriate entity (described in paragraph (2)) to prevent the proposed facility from being issued a permit to be constructed or to operate in that community.

(2) A petition under paragraph (1) shall be submitted in accordance with the following subparagraphs:

(A) In the case of a facility for the management of hazardous waste, the petition shall be submitted to the Administrator or, in the case of a State with an authorized program under section 3006, to the State.

(B) In the case of a facility for the management of municipal solid waste, the petition shall be submitted to the Administrator or, in appropriate cases, as determined under regulations implementing this section, to the State.

(2) Subject to paragraph (3), the EPA shall approve the petition if it is established that--

(A) the proposed facility will be located in a health, environmental or economically disadvantaged community; and

(B) the proposed facility may adversely affect--

(i) the human health of such community or a portion of such community; or

(ii) the air, soil, water, or other elements of the environment of such community or a portion of such community.

(3) After the petitioner has satisfied the requirement of paragraph (2), the EPA shall approve the petition only if the proponent(s) of the proposed facility establishes that --(A) there is no alternative location within the State for the proposed facility that poses fewer risks to human health and the environment than the proposed facility (according to standards for comparing the degree of risk to human health and the environment promulgated in regulations by the Administrator for purposes of this section); and(B) the proposed facility--

(i) will not release contaminants; or

(ii) will not engage in any activity that is likely to increase the cumulative impact of contaminants on any residents of the environmentally disadvantaged community; and

(iii) the project represents clear economic benefit to the community.

(4) ENDORSEMENT. If EPA has determined that there are no significant adverse impacts of environmental pollution on human health in a proposed area, and if a petitioner requests an advance designation of a proposed area, there shall be an endorsement on the siting or permitting of any new facility. A new facility may still be placed on the moratorium list if--

(1) the activity, due to its nature, and as determined by EPA, could negatively affect health at some future date;

The endorsement shall continue in effect in such an area until the Administrator determines, upon petition of any interested party, that the health-based levels identified pursuant to Section 8 have not been maintained at the area due to the activities of the covered facility.

(5) If more than one petition relating to the same facility is submitted, the petitions may be consolidated by the appropriate official to promote the efficient resolution and disposition of the petitions.

SEC. 8. MORATORIUM.

If the report under Section 8 finds significant adverse impacts of environmental pollution on human health, environment or economy in Affected Area, there shall be a moratorium on the siting or permitting of any new toxic chemical facility in any Affected Area shown to emit toxic chemicals in quantities found to cause significant adverse impacts on human health. Such area shall be designated as a Protected Area. A new toxic chemical facility may be cited or permitted in such an Affected Area during this period only if--

(1) the need for the activity is approved by appropriate governing entity;

(2) the owner or operator of the facility demonstrates to EPA that the facility will develop a plan and maintain a comprehensive pollution prevention program; and

(3) the facility demonstrates to the appropriate governing entity that it will minimize uncontrolled releases into the environment.

The moratorium shall continue in effect in such a Protected Area until the Administrator determines, upon petition of any interested party, that the health-based levels identified pursuant to section 401(5) have been attained at the Affected Area.

SEC. 9. INTERAGENCY ENVIRONMENTAL JUSTICE WORKING GROUP.

(a) CREATION AND COMPOSITION- There is hereby established the Interagency Working Group on Environmental Justice, comprising the heads of the following executive agencies and offices, or their designees:

(1) The Department of Defense.

(2) The Department of Health and Human Services.

(3) The Department of Housing and Urban Development.

(4) The Department of Labor.

(5) The Department of Agriculture.

(6) The Department of Transportation.

(7) The Department of Justice;

(8) The Department of the Interior.

(9) The Department of Commerce.

(10) The Department of Energy.

(11) The Environmental Protection Agency.

(12) The Office of Management and Budget.

(13) The Office of Science and Technology Policy.

(14) The Office of the Deputy Assistant to the President for Environmental Policy.

(15) The Office of the Assistant to the President for Domestic Policy.

(16) The National Economic Council.

(17) The Council of Economic Advisers.

(18) Any other official of the United States that the President may designate.

(b) FUNCTIONS- The Working Group shall--

(1) provide guidance to Federal agencies on criteria for identifying disproportionately high and adverse human health or environmental effects on minority populations and low-income populations;

(2) coordinate with, provide guidance to, and serve as a clearinghouse for, each Federal agency as it develops or revises an environmental justice strategy as required by this Act, in order to ensure that the administration, interpretation and enforcement of programs, activities, and policies are undertaken in a consistent manner;

(3) assist in coordinating research by, and stimulating cooperation among, the Environmental Protection Agency, the Department of Health and Human Services, the Department of Housing and Urban Development, and other Federal agencies conducting research or other activities in accordance with section 7;

(4) assist in coordinating data collection, maintenance, and analysis required by this Act;

(5) examine existing data and studies on environmental justice;

(6) hold public meetings and otherwise solicit public participation and consider complaints as required under subsection (c);

(7) develop interagency model projects on environmental justice that evidence cooperation among Federal agencies; and

(8) in coordination with the Department of the Interior and after consultation with tribal leaders, coordinate steps to be taken pursuant to this Act that affect or involve federally-recognized Indian Tribes.

(c) PUBLIC PARTICIPATION- The Working Group shall--

(1) hold public meetings and otherwise solicit public participation, as appropriate, for the purpose of fact-finding with regard to implementation of this Act, and prepare for public review a summary of the comments and recommendations provided; and

(2) receive, consider, and in appropriate instances conduct inquiries concerning complaints regarding environmental justice and the implementation of this Act by Federal agencies.

(d) ANNUAL REPORTS- (1) Each fiscal year following enactment of this Act, the Working Group shall submit to the President, through the Office of the Deputy Assistant to the President for Environmental Policy and the Office of the Assistant to the President for Domestic Policy, a report that describes the implementation of this Act, including, but not limited to, a report of the final environmental justice strategies described in section 6 of this Act and annual progress made in implementing those strategies.

(2) The President shall transmit to the Speaker of the House of Representatives and the President of the Senate a copy of each report submitted to the President pursuant to paragraph (1).

(e) CONFORMING CHANGE- The Interagency Working Group on Environmental Justice established under Executive Order No. 12898, dated February 11, 1994, is abolished.

SEC. 10. FEDERAL AGENCY STRATEGIES.

(a) AGENCY-WIDE STRATEGIES- Each Federal agency shall develop an agency-wide environmental justice strategy that identifies and addresses disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.

(b) REVISIONS- Each strategy developed pursuant to subsection (a) shall identify programs, policies, planning, and public participation processes, rulemaking, and enforcement activities related to human health or the environment that should be revised to--

(1) promote enforcement of all health and environmental statutes in areas with minority populations, low-income populations, or Native American populations;

(2) ensure greater public participation;

(3) improve research and data collection relating to the health of and environment of minority populations, low-income populations, and Native American populations; and

(4) identify differential patterns of use of natural resources among minority populations, low-income populations, and Native American populations.

(c) TIMETABLES- Each strategy developed pursuant to subsection (a) shall include, where appropriate, a timetable for undertaking revisions identified pursuant to subsection (b).

SEC. 11. FEDERAL ENVIRONMENTAL JUSTICE ADVISORY COMMITTEE.

(a) ESTABLISHMENT- There is established a committee to be known as the `Federal Environmental Justice Advisory Committee'.

(b) DUTIES- The Advisory Committee shall provide independent advice and recommendations to the Environmental Protection Agency and the Working Group on areas relating to environmental justice, which may include any of the following:

(1) Advice on Federal agencies' framework development for integrating socioeconomic programs into strategic planning, annual planning, and management accountability for achieving environmental justice results agency-wide.

(2) Advice on measuring and evaluating agencies' progress, quality, and adequacy in planning, developing, and implementing environmental justice strategies, projects, and programs.

(3) Advice on agencies' existing and future information management systems, technologies, and data collection, and the conduct of analyses that support and strengthen environmental justice programs in administrative and scientific areas.

(4) Advice to help develop, facilitate, and conduct reviews of the direction, criteria, scope, and adequacy of the Federal agencies' scientific research and demonstration projects relating to environmental justice.

(5) Advice for improving how the Environmental Protection Agency and others participate, cooperate, and communicate within that Agency and between other Federal agencies, State or local governments, federally recognized Tribes, environmental justice leaders, interest groups, and the public.

(6) Advice regarding the Environmental Protection Agency's administration of grant programs relating to environmental justice assistance (not to include the review or recommendations of individual grant proposals or awards).

(7) Advice regarding agencies' awareness, education, training, and other outreach activities involving environmental justice.

(c) ADVISORY COMMITTEE- The Advisory Committee shall be considered an advisory committee within the meaning of the Federal Advisory Committee Act (5 U.S.C. App.).

(d) MEMBERSHIP- The Advisory Committee shall be composed of at least 25 members appointed by the President. Members shall include representatives of--

(1) community-based groups;

(2) industry and business;

(3) academic and educational institutions;

(4) State and local governments, federally recognized tribes, and indigenous groups; and

(5) nongovernmental and environmental groups.

(e) MEETINGS- The Advisory Committee shall meet at least twice annually. Meetings shall occur as needed and approved by the Director of the Office of Environmental Justice of the Environmental Protection Agency, who shall serve as the officer required to be appointed under section 10(e) of the Federal Advisory Committee Act (5 U.S.C. App.) with respect to the Committee (in this subsection referred to as the `Designated Federal Officer'). The Administrator of the Environmental Protection Agency may pay travel and per diem expenses of members of the Advisory Committee when determined necessary and appropriate. The Designated Federal Officer or a designee of such Officer shall be present at all meetings, and each meeting will be conducted in accordance with an agenda approved in advance by such Officer. The Designated Federal Officer may adjourn any meeting when the Designated Federal Officer determines it is in the public interest to do so. As required by the Federal Advisory Committee Act, meetings of the Advisory Committee shall be open to the public unless the President determines that a meeting or a portion of a meeting may be closed to the public in accordance with subsection (c) of section 552b of title 5, United States Code. Unless a meeting or portion thereof is closed to the public, the Designated Federal Officer shall provide an opportunity for interested persons to file comments before or after such meeting or to make statements to the extent that time permits.

(f) DURATION- The Advisory Committee shall remain in existence until otherwise provided by law.

SEC. 12. HUMAN HEALTH AND ENVIRONMENTAL RESEARCH, DATA COLLECTION AND ANALYSIS.

(a) DISPROPORTIONATE IMPACT- To the extent permitted by other applicable law, including section 552a of title 5, United States Code, popularly known as the Privacy Act of 1974, the Administrator of the Environmental Protection Agency, or the head of such other Federal agency as the President may direct, shall collect, maintain, and analyze information assessing and comparing environmental and human health risks borne by populations identified by race, national origin, or income. To the extent practical and appropriate, Federal agencies shall use this information to determine whether their programs, policies, and activities have disproportionately high and adverse human health, environmental or economic effects on minority populations and low-income populations.

(b) INFORMATION RELATED TO NON-FEDERAL FACILITIES- In connection with the development and implementation of agency strategies in section 4, the Administrator of the Environmental Protection Agency, or the head of such other Federal agency as the President may direct, shall collect, maintain, and analyze information on the race, national origin, and income level, and other readily accessible and appropriate information, for areas surrounding facilities or sites expected to have a substantial environmental, human health, or economic effect on the surrounding populations, if such facilities or sites become the subject of a substantial Federal environmental administrative or judicial action.

(c) IMPACT FROM FEDERAL FACILITIES- The Administrator of the Environmental Protection Agency, or the head of such other Federal agency as the President may direct, shall collect, maintain, and analyze information on the race, national origin, and income level, and other readily accessible and appropriate information, for areas surrounding Federal facilities that are--

(1) subject to the reporting requirements under the Emergency Planning and Community Right-to-Know Act (42 U.S.C. 11001 et seq.) as mandated in Executive Order No. 12856; and

(2) expected to have a substantial environmental, human health, or economic effect on surrounding populations.

(d) INFORMATION SHARING- (1) In carrying out the responsibilities in this section, each Federal agency, to the extent practicable and appropriate, shall share information and eliminate unnecessary duplication of efforts through the use of existing data systems and cooperative agreements among Federal agencies and with State, local, and tribal governments.

(2) Except as prohibited by other applicable law, information collected or maintained pursuant to this section shall be made available to the public.

(e) PUBLIC COMMENT- Federal agencies shall provide minority populations and low-income populations the opportunity to participate in the development, design, and conduct of activities undertaken pursuant to this section.

 



[1] CP-29. http://www.dec.ny.gov/regulations/36951.html

[2] Written Comments of Norris McDonald Submitted To DEC on the Final Report of the New York State DEC Disproportionate Adverse Environmental Impact Analysis Work Group (August 2004), January 3, 2005

[3] Environmental Justice Coalition website: http://ejcoalition.multiply.com

[4] DEC, Part 231, New Source Review.

[5] "Mayor Bloomberg Delivers PlaNYC: A Greener, Greater New York," April 22, 2007, http://www.mikebloomberg.com/en/issues/environment_sustainability/mayor_michael_bloomberg_delivers_planyc_a_greener_greater_new_york

[6] "Members Announce Asthma Task Force," May 6, 2003, The Council of the City of New York, http://www.nyccouncil.info/pdf_files/newswire/asthma.pdf

[7] Martha H. Keating, Air Injustice, (October 2002)

[8] Death, Disease & Dirty Power: Mortality and Health Damage Due to Air Pollution from Power Plants, Clean Air Task Froce (October 2000) (Exhibit C)(available at http://cta.policy.net/fact/mortality/mortalitylowres.pdf).

[9] Clear the Air: People of Color in Non-Attainment Counties (available at http://cta.policy.net/fact/injustice/injustice_non-attainment.pdf).

[10] All population data compiled from 2,000 U.S. Census.

[11] Clear the Air: People Color in Non-Attainment Counties.