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
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,
This Act may be cited as the
`Environmental Justice Act of 2012'.
The Congress finds that--
The purposes of this Act are--
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'.
(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.
(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.
(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).
(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.
(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
[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.