ENVIRONMENTAL
LAW-INSTITUTE
ENVIRONMENTAL LAW INSTITUTE
RESEARCH REPORT
OPPORTUNITIES FOR
ADVANCING
ENVIRONMENTAL
JUSTICE:
An Analysis of U.S. EPA
Statutory Authorities
Environmental Law Institute
November 2001
-------
Acknowledgment
This research was supported by the Office of Environmental Justice and the Office of Civil Rights
of the U.S. Environmental Protection Agency under Assistance Agreement No. CR82675501.
The views expressed herein should not be attributed to EPA nor should any official endorsement
be inferred.
Opportunities For Advancing Environmental Justice: An Analysis of U.S. EPA Statutory Authorities
Copyright © 2001 Environmental Law Institute®, Washington, DC. All rights reserved.
ISBN No. 1-58576-031-5. ELI Project No. 981623.
An electronically retrievable copy (PDF file) of this report may be obtained for no cost from the Environmental Law
Institute web site . click on "Publications" then "2001 Research Reports" to locate the file. [Note: ELI
Terms of Use will apply and are available on site.]
(Environmental Law Institute®, The Environmental Forum®, and the Environmental Law Reporter® are registered
trademarks of the Environmental Law Institute.)
-------
Table of Contents
Introduction i
PART A: ENVIRONMENTAL JUSTICE OPPORTUNITIES
BY AGENCY FUNCTION
Chapter 1: The Sources and limits of Agency Discretion 1
Chapter 2: Standard Setting 5
Chapter 3: Permitting and Other Approvals 13
Chapter 4: Delegation of Programs to States and Tribes 21
Chapter 5: Enforcement 27
Chapter 6: Information Gathering 39
Chapter 7: Financial Assistance 47
Chapter 8: Public Participation 55
PART B: STATUTE-BY-STATUTE REVIEW OF POTENTIAL
ENVIRONMENTAL JUSTICE AUTHORITIES
Chapter 9: National Environmental Policy Act 67
Chapter 10: Federal Water Pollution Control Act 87
Chapter 11: Clean Air Act 105
Chapter 12: Resource Conservation and Recovery Act 131
Chapter 13: Comprehensive Environmental Response Compensationl49
and Liability Act 149
Chapter 14: Federal Insecticide, Fungicide, and Rodenticide Act; Federal Food,
Drug, and Cosmetic Act • 177
Chapter 15: Safe Drinking Water Act 201
Chapter 16: Toxic Substances Control Act 223
Chapter 17: Emergency Planning and Community Right-to-Know Act 237
-------
-------
INTRODUCTION
Over the past several years, the term "environmental justice" has become a part of our
national vocabulary. This outcome follows decades of efforts by individuals and grassroots groups
around the country to address a wide range of environmental and health threats to communities of
color and low-income communities, and to call attention to the disparate impacts of environmental
degradation on these communities. Environmental justice embodies a goal of achieving healthy,
sustainable communities for all people. As part of this goal, environmental justice calls for equal
protection for all people under the nation's environmental laws.
In light of these aims, a significant focus of environmental justice efforts have been the
activities of the Environmental Protection Agency (EPA), the central governmental office in the
U.S. charged with protecting public health and the environment. While there are numerous public
institutions whose activities bear directly on issues of environmental justice, EPA has jurisdiction
over many of the core issues, especially the prevention and control of industrial pollution, that have
given rise to the environmental justice movement.
In 1992, EPA created the Office of Environmental Justice to help integrate environmental
justice issues throughout its programs. A key event in ongoing efforts to integrate environmental
justice goals into EPA and other government agency programs occurred on February 11,1994, with
the signing of Executive Order 12898, "Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations." In addition to a number of specific directives
to federal agencies regarding research, data collection and public participation activities, the
Executive Order establishes generally that each federal agency must make environmental justice part
of its mission and address disproportionate health and environmental impacts throughout its
programs, policies and activities to the extent appropriate and permitted by law. Executive Order
12898 §1-101. The presidential memorandum accompanying the Order stated: "Application of...
existing statutory provisions is an important part of this Administration's efforts to prevent those
minority communities and low-income communities from being subject to disproportionately high
and adverse environmental effects."
In 1995, EPA adopted a Strategy that establishes for the agency the sweeping goal of
environmental justice, that "[n]o segment of the population, regardless of race, color, national origin,
or income, as a result of EPA's policies, programs, and activities, suffers disproportionately from
adverse human health or environmental effects, and all people live in clean, healthy and sustainable
communities." U.S. EPA, The Environmental Protection Agency's Environmental Justice Strategy
(April 3, 1995).
The EPA Administrator reaffirmed this commitment in August 2001. In an agency-wide
memorandum, Administrator Whitman stated that "environmental justice is the goal to be achieved
for all communities and persons across this Nation. Environmental justice is achieved when
everyone, regardless of race, culture, or income, enjoys the same degree of protection from
environmental and health hazards and equal access to the decision-making process to have a healthy
environment in which to live, learn, and work." Memorandum from Christine Todd Whitman,
Administrator, U.S. EPA, EPA's Commitment to Environmental Justice (August 9, 2001).
-------
Given the breadth and complexity of environmental and public health issues affecting
communities of color and low-income communities in all parts of the United States, the pursuit of
environmental justice at EPA involves a wide range of decisions made throughout the agency's
regulatory programs, both at agency headquarters and in the regional offices — decisions about how
to set standards and issue permits, as well as decisions about when to take enforcement action and
what type of research projects to support. This report seeks to contribute to public understanding
of the authorities and opportunities afforded by current federal environmental laws to address the
disproportionate environmental harms and risks faced by communities of color and low-income
communities.
SCOPE AND PURPOSE OF THIS REPORT
This report reviews the provisions contained in the principal federal environmental kws
administered by EPA, in order to identify authorities that potentially could be used to advance a
variety of environmental justice goals in the agency's programs. While there also are significant
opportunities for action to be taken by other federal, state, tribal and local agencies, this report
considers only EPA's authorities and actions.
The report aims to present an expansive view of the relevant statutory provisions, in order to
further public understanding of the range of actions that can be considered. The report does not
discuss all of the legal arguments that might be framed in support of or against the analysis
presented in the following chapters, nor does the report attempt to predict how these arguments
would be resolved in a particular case. Moreover, the report does not assess the practical viability of
using these statutory authorities to address environmental justice issues. Implementation of any of
the authorities discussed here will require consideration of a mix of scientific, political, financial and
other factors, depending on the program and type of action involved. It is hoped that the discussion
of authorities in this report can provide a starting point for such inquiry by individuals and groups,
both public and private, interested in advancing environmental justice goals in specific areas of EPA
regulatory activity.
Numerous existing EPA initiatives bear directly or indirectly on the goal of advancing
environmental justice. The report does not seek to review these initiatives, but rather to provide to
the public a foundation for further exploration of the extent to which EPA's current programs
capture the potential reflected in existing statutory authority.
This report is written for the public. A fuller understanding of EPA's authorities to
promote environmental justice is important because the public has a vital role to play in the effective
implementation of EPA's environmental protection programs. A companion document to be
published shortly by the Environmental Law Institute will seek to illuminate further the ways in
which interested individuals and groups can help shape how EPA programs use these statutory
authorities to promote environmental justice.
11
-------
RESEARCH METHODOLOGY
1. Defining Activities that Further Environmental Justice Goals
This report identifies statutory authorities for furthering environmental justice goals in
EPA's regulatory programs. Environmental justice is a broad term, encompassing far-reaching goals
and principles. The research conducted for this report focused on three general goals that have
been emphasized in the public discussion of EPA's role in advancing environmental justice: (1)
identifying fully the impacts of agency actions and decisions on communities of color and low-
income communities; (2) making agency decisions that are aimed at remedying and preventing
disproportionate impacts; and (3) ensuring that affected communities have meaningful input in
identifying impacts, making decisions and implementing environmental programs.
Identifyingfully the impacts of agency actions and decisions on communities of color and low-income
communities. One prominent issue in the national dialogue on environmental justice has been the
need for EPA to consider adequately the environmental and health impacts of its decisions on
communities that are already heavily burdened by polluting facilities and activities. Incinerators,
waste and wastewater treatment facilities, transfer stations, refineries and factories are often
disproportionately represented in these communities. As Richard Lazarus and Stephanie Tai have
noted: "One of the major lessons of environmental justice is that EPA's past failure to account for
aggregation of risks and cumulative impacts has caused EPA's existing standards to fail to protect
human health and the environment in certain communities." Richard Lazarus & Stephanie Tai,
Integrating Environmental Justice into EPA PermittingAutbority, 26 ECOLOGY L.Q. 617, 642 (1999).
Measuring the cumulative and synergistic impacts of multiple sources — and not simply the effects of
individual pollutants or individual facilities — involves a host of technological and scientific
complexities. A central goal of environmental justice has been to focus regulatory action on
preventing and addressing these impacts.
Another important factor in the discussion of impacts of polluting activities on communities
of color and low-income communities is the existence of sensitive populations that may be at
heightened risk from exposure to pollutants. For example, children of color are especially likely to
suffer from elevated blood lead levels, due in large part to their exposure to lead-based paint in
older, substandard housing. The current asthma epidemic in the U.S. particularly affects urban
communities of color, which are often exposed to numerous sources of air pollution. Low-income
families may be more susceptible to adverse health effects from pollution, as a result of inadequate
nutrition, limited access to health care, and other factors resulting in poorer general health.
Moreover, unique exposure pathways may result from cultural or social practices, or economic
circumstances — for example, exposure to pollutants through consumption of fish and other natural
resources, or exposure to pesticides through farm work.
In addition, communities that are overburdened by industrial and commercial activity also
potentially suffer a range of social and economic effects. Environmental justice advocates have
urged EPA and other agencies to consider quality of life impacts such as noise, odors and traffic, as
well as economic impacts including reduced property values, lost wages and medical bills.
Ill
-------
Making agency decisions that are aimed at remedying and preventing disproportionate impacts. The
reason for fuller consideration of impacts on communities of color and low-income communities is
to provide a basis for making decisions that aim to protect the public health and environment in
these communities. As reflected in EPA's Environmental Justice Strategy, implementing regulatory
programs so as to ensure environmental protection for all communities necessarily involves taking
action to both eliminate disproportionate impacts and prevent them in the future. Where there is
scientific or factual uncertainty regarding health and other impacts, environmental justice principles
call for adopting a precautionary approach generally in these regulatory decisions. The range of
EPA decisions that can further environmental justice includes setting standards that are protective
of health and the environment, establishing permit conditions, and taking enforcement actions, as
well as carrying out research, conducting monitoring and reporting, and providing financial
assistance.
Ensuring that affected communities have meaningful input in identifying impacts, making decisions and
implementing environmental programs. Even with the public participation reforms of recent decades, for
those outside of government and professional advocacy groups, navigating the regulatory process
remains a daunting task. For many communities of color and low-income communities, the
economic, cultural, linguistic and other barriers are often substantial. The importance of enhancing
participation in the regulatory process "early and often" has been a core element of discussions of
how to achieve environmental justice. Such participation is a central component of any agency
efforts to understand the full range of impacts on communities of color and to make regulatory
decisions aimed at addressing those impacts. This goal, too, is reflected in EPA's Environmental
Justice Strategy, which states: "Those who live with environmental decisions . . . must have every
opportunity for public participation in the making of those decisions."
2. Review of Federal Environmental Statutes and Other Materials
This report covers ten federal environmental statutes implemented by EPA:
• The National Environmental Policy Act, 42 U.S.C. §§ 4321-4347 ("NEPA");
The Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387 ("Clean Water
Act" or "CWA");
The Clean Air Act, 42 U.S.C. §§7401 -7671 q ("CAA");
• The Resource Conservation and Recovery Act, 42 U.S.C § 6901 ef seq ("RCRA");
• The Comprehensive Environmental Response, Compensation, and Liability Act, 42
U.S.C. §§ 9601-9675 ("CERCLA" or "Superfund");
• The Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§ 136-136y
("FIFRA);
The Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301-397 ("FFDCA");
The Safe Drinking Water Act, 42 U.S.C. §§ 300f - 300J-26 ("SDWA");
The Toxic Substances Control Act, 15 U.S.C. §§ 2601-2692 '("TSCA"); and
• The Emergency Planning and Community Right-to-Know Act, 42 U.S.C. §§ 11001-
11050 ("EPCRA").
Taken together, these statutes encompass most of EPA's mandate to protect public health
and the environment by controlling pollution and regulating the manufacture, use and disposal of
IV
-------
specific substances. ELI reviewed each of these statutes, in order to identify provisions that give
EPA authority to achieve environmental justice for all communities. While EPA's implementing
regulations are a source of authority as well, the focus of this report is the enabling legislation. In
certain areas, the report discusses regulations because of their particular importance in delineating
the substance of EPA's implementation of a specific statutory provision.
This research did not include a review of EPA's authorities under Tide VI of the Civil Rights
Act of 1964, which prohibits discrimination on the basis of race, color, or national origin in all
programs or activities receiving federal financial assistance. 42 U.S.C. §§2000d to 2000d-7; see also 40
C.F.R: Part 7. As noted in the following chapter, Tide VI provides an additional source of authority
for EPA to address environmental justice issues.
There is a rich literature on the subject of environmental justice, and numerous books,
articles and reports provided background for this research. In addition, the analysis presented in the
report has been informed by the work of previous authors who have examined the specific question
of EPA's legal authorities to promote environmental justice. The most recent such work was
produced by EPA's Office of General Counsel (OGC), in a December 2000 memorandum titled
"EPA Statutory and Regulatory Authorities Under Which Environmental Justice Issues May Be
Addressed in Permitting." This followed an earlier, less formal 1994 OGC memorandum tided ,
"Environmental Justice Law Survey." In 1999, Richard Lazarus and Stephanie Tai published an
influential law journal article on the subject, titled "Integrating Environmental Justice into EPA
Permitting Authority." In addition, the National Environmental Justice Advisory Council has
devoted considerable attention to the question of EPA's legal audiorities in this area, as reflected in
its July 2000 report, "Environmental Justice in the Permitting Process."
STRUCTURE OF THIS REPORT
This report is divided into two major sections. Section A highlights various EPA authorities
by function. The Section begins with a brief description of the sources and limits of EPA's general
discretion in implementing environmental laws. The remaining chapters in Section A address the
following agency functions: standard setting and rule-making generally; permitting and other types
of approvals; program delegation; enforcement; information gathering; financial assistance; and
public participation. Section A reviews how EPA could utilize some of the authorities discussed in
detail in Section B to advance specific environmental justice goals.
Section B provides a detailed statute-by-statute review of EPA's authorities that could
potentially be used to further environmental justice. The federal laws included in the report are
presented in nine chapters. Each chapter addresses the key statutory provisions, and is organized
into parts according to the various functions of the agency included in Section A. An exception
exists with respect to authorities to promote community participation, which are interwoven
throughout the discussions of agency functions.
-------
-------
CHAPTER 1
SOURCES AND LIMITS OF AGENCY DISCRETION
Like other federal agencies, EPA's legal authority is grounded not only in the specific
statutes entrusted to the agency to administer, but also in a thicket of general administrative laws and
doctrines, cross-cutting federal statutes, and executive orders and policies. Full discussion of these
authorities is beyond the scope of this report, but they form a backdrop to the analysis of individual
statutes presented here. Particularly relevant to the agency's environmental justice authority are the
National Environmental Policy Act (NFEPA), 42 U.S.C §§ 4321-4347; Title VI of the Civil Rights
Act of 1964, 42 U.S.C §§ 2000d et seq., which prohibits discrimination in all programs or activities
that receive federal financial assistance; and Executive Order 12898 on environmental justice, 59
Fed. Reg. 762 (Feb. 11, 1994). In addition, EPA possesses general discretionary authority to
interpret and implement the statutes that define its missions. Taken together with EPA's pollution
control statutes, these authorities define the scope of EPA's discretion and authorize the agency to
exercise its discretion to consider and address environmental justice issues, even where such
consideration is not directly compelled by the underlying statutes.
Indeed, NEPA — the original mission-expanding environmental law — speaks broadly to the
goals of environmental justice. Section 102(1) "authorizes and directs" that "to the fullest extent
possible" the "policies, regulations, and public laws of the United States shall be interpreted and
administered in accordance with the policies set forth in [NEPA]." 42 U.S.C § 4332(1). The statute's
policy objectives anticipate precisely the kind of concerns that are typically linked to environmental
justice, including providing safe, healthy, and pleasing surroundings "for all Americans," 42 U.S.C §
4331 (b)(2) (emphasis added); attaining a wide range of beneficial uses of the environment without
"undesirable and unintended consequences," 42 U.S.C. § 4331 (b)(3); maintaining an environment
that supports "diversity and variety of individual choice," 42 U.S.C. § 4331(b)(4); and achieving
patterns of development and resource use that allow a "wide sharing of life's amenities." 42 U.S.C. §
4331(b)(5). Current environmental justice efforts gain further support from NEPA's explicit
congressional recognition that "each person should enjoy a healthful environment." 42 U.S.C. §
4331 (c).
While most NEPA case law has focused on the statute's procedural aspects and its
requirement of environmental impact assessment, this does not diminish the force of its substantive
mandate. The statutory language obliges EPA to administer a//its programs in accordance with the
national environmental policy to the fullest extent possible, regardless of whether the agency does so
through environmental impact assessment or through other means. Expressly described as a policy
directive "supplementary to" the ones imposed by other laws, 42 U.S.C. § 4335, NEPA is an integral
part of EPA's mission. As the Environmental Law Institute noted six years ago, "[fjhe
understanding of NEPA as a grant of authority is liberating. It provides the discretion necessary to
consider a broad array of relevant factors in decisionmaking." Environmental Law Institute,
Rediscovering the National Environmental Policy Act: Back to the Future, at 11 (1995). The agency's
potential application of this discretion to environmental justice issues is discussed in detail in the
NEPA chapter of this report.
-------
Tide VI provides anodier potential source of audiority to promote environmental justice,
dirough its government-wide directive to eliminate discrimination on die basis of race, color, or
national origin in all programs or activities that receive federal financial assistance. 42 U.S.C. §§
2000d to 2000d-7; see also 40 C.F.R. Part 7. An examination of EPA's authorities under Tide VI is
beyond the scope of tiiis report, but die agency's responsibility to exercise ongoing oversight to
ensure that state programs and odier recipients of EPA financial assistance do not discriminate
against people of color provides an important context for many of die agency activities described in
diis report EPA has published two draft Tide VI guidance documents, die first for state and local
recipients of EPA financial assistance for environmental permitting programs, and die second
establishing a framework for EPA's own consideration of administrative complaints alleging
discrimination in environmental decisions. See 65 Fed. Reg. 39649 (June 27, 2000). It remains to be
seen how EPA will implement its Tide VI mandate, especially in light of the ongoing national
dialogue about what approach the agency should take. See generally NATIONAL ADVISORY COUNCIL
FOR ENVIRONMENTAL POLICY AND TECHNOLOGY, REPORT OF THE TITLE VI IMPLEMENTATION
ADVISORY COMMITTEE: NEXT STEPS FOR EPA STATE AND LOCAL ENVIRONMENTAL JUSTICE
PROGRAMS (U.S. Environmental Protection Agency, pub., EPA 100-R-99-004, April 1999).
Finally, aldiough not a statutory audiority, Executive Order 12898 directs each federal
agency to "make achieving environmental justice part of its mission by identifying and addressing, as
appropriate, disproportionately high and adverse human healdi or environmental effects of its
programs, policies, and activities on minority populations and low-income populations." Executive
Order 12898, "Federal Actions to Address Environmental Justice in Minority Populations and Low-
Income Populations" § 1-101 (Feb. 1994). Agencies must accomplish this goal "[t]o the greatest
extent practicable and permitted by law." Id. The Executive Order furdier requires each agency to
conduct its programs, policies, and activities in such a manner diat diey "do not have the effect of
discriminating against individuals or subpopulations based on their race, color, or national origin, id.
§ 2.2, and an accompanying memorandum directs federal agencies to assure that their programs do
not run afoul of die anti-discrimination requirements of Tide VI. The Executive Order represents a
broad commitment by the executive branch to environmental justice goals, and provides EPA with a
basis for expansive application of die agency's existing discretion to consider how die
implementation of policies and programs affect low-income communities and communities of color,
and to act accordingly.
Apart from these explicit sources of audiority, EPA also possesses general or implied
discretionary audiority, which administrative agencies commonly exercise in areas that are not
specifically addressed by Congress. See Daniel J. Gifford, Discretionary Decisionmaking in the Regulatory
Agencies: A. Conceptual Framework, 57 So. CAL. L. REV. 101 (1983). Such implied or general discretion
may provide EPA with some audiority to address environmental justice issues even where the
agency's actions are not founded on a particular statutory provision. In a series of cases challenging
Clean Air Act prevention of significant deterioration (PSD) permits, EPA's Environmental Appeals
Board (EAB) endorsed the agency's general discretion to promote environmental justice. Sheila R.
Foster, Meeting the Environmental Justice Challenge: Evolving Norms in Environmental Decisionmaking, 30
ELR 10992, nn. 32-33 and accompanying text (Nov. 2000). In each of diese cases, the EAB
reviewed environmental justice claims widiout directiy basing its audiority to do so on the text of
the Clean Ak Act, relying instead on die agency's general discretionary audiority. According to
Professor Foster, this was not for lack of authority under the Act, and indicated die extent to which
-------
"environmental justice is becoming part of the landscape of federal environmental law," Id at
10993-94.
Administrative agencies are said to have discretionary authority whenever they have the
freedom to choose among possible courses of action or inaction within the effective limits of their
power. Kenneth Gulp Davis, 2 ADMINISTRATIVE LAW TREATISE § 8:3 (1979). The Supreme
Court's landmark decision in Chevron U.SA., Inc. v. Natural'Resources Defense Council, 467 U.S. 837
(1984), is the starting place for discussion of the boundaries of agency discretion. In that case, the
Supreme Court created a two-part framework for reviewing agency interpretations of law. First, a
reviewing court must decide whether Congress has directly spoken on the precise question at issue.
If it has, the court "must give effect to the unambiguously expressed intent of Congress," and strike
down any conflicting agency interpretation. If the relevant statutory terms do not unambiguously
resolve the issue, however, courts must defer to the agency's interpretation as long as it is a
"reasonable" one. This principle of deference to agency interpretations of law - die second part of
the Chevron analysis - was at the time a controversial aspect of the case, because it seemed to
ckcumscribe the traditional judicial function of interpreting the law.
Chevron appeared to usher in a new era of judicial deference to agencies, especially in the first
years after it was handed down. See Peter Schuck & E. Donald Elliott, To the Chevron Station: An
Empirical Study of Federal Administrative ~Law, 1990 DUKE L.J. 984. But recent decisions have thrown
this assumption into doubt, as federal courts have shown a growing willingness to strike down
agency interpretations of law as contrary to the ordinary, linguistic meaning of legislative terms. See,
e.g., Solid Waste Agency ofN. Cook Co. v. U.S. Army Corps ofEng'rs, 121 S. Ct. 675 (2001); U.S. v. Mead
Corp., S. Ct. Slip Opinion (June 18, 2001). In other cases, courts have struck down regulations by
probing deeply into their basis in science and reason. See, e.g., Corrosion ProofFittings v. EPA, 947 F.2d
1201 (1991). This recent trend in case law has led agencies to be somewhat cautious in construing
their authorizing statutes, and is one of the factors that will have to be considered when evaluating
the specific arguments made in the statutory chapters of this report. Nevertheless, the basic
principle of Chevron deference to agency discretion still stands, and supports EPA's authority to
incorporate environmental justice concerns into its decision-making in appropriate cases.
All of EPA's sources of authority — environmental statutes, mission-expanding and cross-
cutting laws, and general discretion — give the agency substantial and wide-ranging powers to pursue
environmental justice. Akeady the agency has made significant strides in this direction in its
implementation of specific programs. See, e.g., U.S. EPA OFFICE OF SOLID WASTE AND
EMERGENCY RESPONSE, 1997-1998 WASTE PROGRAMS ENVIRONMENTAL JUSTICE
ACCOMPLISHMENTS REPORT (EPA-500-R-00-003, May 2000); U.S. EPA, RCRA Expanded Public
Participation Rule, 60 Fed. Reg. 63417 (Dec. 11, 1995). But opportunities for further progress
remain. As noted in the Introduction to this report, constraints on the agency's use of its authority
originate as much in resource considerations, political factors, and other matters both internal and
external to the agency as they do in the law itself.
-------
-------
CHAPTER 2
STANDARD SETTING
Like other federal agencies, EPA has quasi-legislative power to issue rules and regulations
that implement the statutory authority granted it by Congress. These rules add needed detail to
broad statutory mandates, establish day-to-day operating procedures for programs created or
authorized by statute, and otherwise interpret, reconcile, and fill gaps in die statutory language. In
the case of EPA's highly complex pollution control programs, agency rule-making often takes the
form of technical standards that govern the siting, design, and operation of regulated facilities, as
well as the manner and amount of their discharges into the environment. Throughout these
processes, EPA can promote environmental justice by ensuring that the agency takes account of the
impacts on low-income communities and communities of color as it sets standards and thus
determines acceptable thresholds of exposure and risk. This chapter highlights authorities for the
agency to further this goal by exercising its discretion both in the rule-making process generally and
in setting specific kinds of standards.
I.
RULE-MAKING IN GENERAL
Environmental statutes typically grant EPA broad powers to issue regulations "necessary" to
carry out its functions under the statutes. E.g., 1 U.S.C. § 136w(a)(l) (FIFRA); 33 U.S.C. § 1361 (a)
(Clean Water Act); 42 U.S.C. § 6912(a)(l) (RCRA); 42 U.S.C. § 9615 (CERCLA). The legislative
conferral of power in such provisions gives the agency substantial discretion in exercising its core
functions, particularly the protection of health and environmental quality; this discretion arguably
extends to actions that are specifically designed to promote health and environmental quality in
heavily burdened communities, low-income communities or communities of color. Thus, if the
agency deems a specific measure necessary to protect human health or the environment in these
communities, that decision likely will be upheld by courts.
For example, Section 2002(a)(l) of the Resource Conservation and Recovery Act (RCRA)
empowers the Administrator to issue regulations "necessary to carry out his functions" under the
Act. 42 U.S.C. § 6912(a)(l). Sections 3002 through 3004 direct EPA to issue such regulations
applicable to generation, transport, and storage of hazardous waste "as may be necessary to protect
human health and the environment," and courts generally have deferred to the agency's
interpretation of this authority. 42 U.S.C. §§ 6922-6924; see Chemical Manufacturers Ass'n v. U.S.
EPA, 919 F.2d 158, 164 (D.C. Cir. 1990). It has been argued that these sections provide the basis
for a broad range of measures tailored to the specific concerns of low-income communities and
communities of color that are affected by waste disposal activity, including reporting and record-
keeping, waste reduction practices, and design and maintenance standards. Richard J. Lazarus &
Stephanie Tai, Integrating Environmental Justice into EPA PemittingAuthority, 26 ECOL. L.Q. 617, 642-46
(1999). These measures are discussed further in Chapter 12 of this report
-------
In In re Chemical Waste Management of Indiana, Inc., 6 E.A.D. 66,1995 WL 395962 (June 29,
1995), the Environmental Appeals Board interpreted EPA's authority to address environmental
justice issues under the RCRA "omnibus clause," which likewise authorizes the agency to include in
RCRA permits "such terms and conditions as the Administrator (or State) determines necessary to
protect human health and the environment." 42 U.S.C. § 6925(c)(3). The Board held that the clause
does not require EPA to consider environmental justice issues in permitting, but that it is well within
the agency's discretion to do so, as long as it relates to the core function of protecting human health
and the environment. Id. Although the Chemical Waste Management decision arose from a challenge
to a permit, its analysis of language nearly identical to the language found in RCRA Sections 3002
through 3004 suggests that EPA possesses similar discretion to consider and address environmental
justice concerns when setting RCRA standards. It may also give an indication of how the Board or
courts would interpret the comparably broad grants of discretion found in EPA's other pollution
control statutes, if the agency can sufficiently link its actions to public health and environmental
quality.
At the same time, the Board noted that RCRA's omnibus clause, standing alone, might
preclude EPA from redressing "impacts that are unrelated or only tenuously related to human health
and the environment, such as disproportionate impacts on the economic well-being of a minority or
low-income community." 1995 WL 395962 at 7. While this language might at first glance appear to
constrain EPA in addressing environmental justice, the Board does not appear to be saying that
economic and social impacts are beyond the scope of the agency's legislative authority in general,
only that such impacts must remain linked to issues of health or environmental quality. Lazarus &
Tai at 663. In actuality, these linkages are not as remote as they might first appear; the real problem
is that the people pressing environmental justice claims before the agency rarely possess the
technical and legal resources necessary to establish such linkages. The Chemical Waste Management
decision suggests that the agency itself has discretion to investigate these linkages and act
accordingly.
II. PARTICULAR KINDS OF STANDARDS
The statutes EPA administers prescribe a wide array of standards, reflecting historically
different approaches to pollution control, different policy purposes, and different types of regulated
substances and discharges affecting different media. Four broad categories of standards authorized
by the statutes are: (1) technology-based performance standards, (2) design and practices standards,
(3) harm-based standards, and (4) standards for regulating substances. Each type of standards
presents opportunities for EPA to address environmental justice issues. The agency's ability to do
so depends heavily on the specific statutory language, as discussed in the chapters on the individual
statutes. Some common themes and highlights are discussed below.
A. Technology-Based Performance Standards
Technology-based performance standards limit the amount of pollution a source may emit
or discharge into the environment. They are "technology-based" insofar as they are set according to
the known capabilities of existing pollution control technologies; however, they differ from
technology-based design standards in that they do not require sources actually to use the particular
-------
technologies on which the standards are based. Unlike harm-based standards, they do not stem
from judgments about the ambient levels of pollution in the environment necessary to protect
public health and other values. Instead, they attempt to bring all sources in line with the best-
performing sources in each industrial sector. Over time, such standards can be tightened to reflect
advances in pollution control technology.
Technology-based effluent and emissions limitations under the Clean Water Act and the air
toxics program of the Clean Air Act are ckssic illustrations of technology-based performance
standards. EPA exercises considerable discretionary power at several stages of these programs, each
of which presents an opportunity to consider and address environmental justice concerns. These
include: (1) listing pollutants; (2) identifying pollution sources; (3) defining source.categories; (4)
setting standards; and (5) reviewing variances.
lasting Pollutants. Although the Clean Water Act specifically requires EPA to regulate certain
pollutants, the agency is authorized to add and regulate new pollutants of concern, whether
"conventional," toxic, or "nonconventional." See 33 U.S.C. § 1312(a)(4) (conventional pollutants
include, "but not limited to," BOD, suspended solids, fecal coliform, and pH); 33 U.S.C. §
1317(a)(l) (EPA authorized to add to specified list of toxic pollutants); 33 U.S.C. § 1311(b)(l)(F)
(EPA may regulate as nonconventional pollutants "all pollutants" not classified as conventional or
toxic). In the 1990 amendments to the Clean Air Act, Congress listed 189 hazardous ak pollutants
(HAPs) to be regulated under Section 112. EPA is authorized to add to this list pollutants that
present adverse public health and environmental effects through "ambient concentrations,
bioaccumulation, deposition, or otherwise." 42 U.S.C. § 7412(b)(2). The agency also must publish a
list of at least 30 HAPs emitted from area sources that pose the "greatest threat to public health in
the largest number of urban areas." 42 U.S.C. § 7412(k)(3)(B)(i).
Identifying Pollution Sources. Technology-based effluent limitations under the Clean Water Act
are applicable to "point sources," which are broadly defined to mean "any discernible, confined and
discrete conveyance." 33 U.S.C. § 1362(14). EPA can by regulation include or exempt sources from
coverage as point sources. Similarly, Section 112 of the Clean Ak Act establishes separate regulatory
programs for "major sources" and "area sources" of hazardous air pollutants. Although the statute
provides a definition of "major source" based on the yearly quantity of emissions, EPA may at any
time "establish a lesser quantity" for major source regulation based on such factors as persistence,
bioaccumulative potential, and "other relevant factors." 42 U.S.C. § 7412(a)(l).
Defining Source Categories. Under the Clean Water Act, EPA develops effluent limitation
guidelines for "classes and categories" of point sources. 33 U.S.C. § 1314. The classification
typically is done by standard industrial code or other large groupings, but the agency has discretion
to further refine the size and scope of these categories according to relevant factors. Likewise,
under the ak toxics program, EPA is requked to list categories and subcategories of major and area
sources emitting at least one HAP, and to revise the list at least once every eight years. 42 U.S.C §
7412(c)(l). EPA "may at any time" list additional categories and subcategories of sources. 42 U.S.C
§7412(c)(5).
Setting Standards. Under the Clean Water Act, EPA issues effluent limitations reflecting
varying degrees of pollution control depending on the type of pollutant. The limitations are based
-------
on regulatory guidelines that specify factors the agency will take into account, including "such
factors as the Administrator deems appropriate." 33 U.S.C. §§ 1314(b)(l)(B), 1314(b)(2)(B),
1314(b)(4)(B). EPA also can establish "any more stringent limitations, including those necessary to
meet water quality standards, treatment standards, or schedules of compliance, established pursuant
to any State law or regulations . . .or any other Federal law or regulation .. .." 33 U.S.C. §
1311(b)(l)(C). In the Clean Air Act toxics program, EPA must establish best technology
performance standards for each category of source that take into account, among other things,
"non-air quality health and environmental impacts." 42 U.S.C. § 7412(d)(l). In setting regulatory
priorities under the program, EPA must consider the "quantity and location" of emissions. 33
U.S.C. § 7412(e)(2)(B).
Revieiving Variances. Under the Clean Water Act, EPA may grant a "fundamentally different
factors" variance from certain effluent limitations provided that the source demonstrates "to the
satisfaction of the Administrator," that, among other things, "the alternative requirement will not
result in a non-water quality environmental impact which is markedly more adverse than the impact"
considered in the original effluent limitation. 33 U.S.C. § 1311(n)(l)(D). Variances from secondary
treatment standards for municipal waste treatment and from effluent limitations for dischargers of
nonconventional pollutants are governed by similar discretionary language. 33 U.S.C. § 1311(g),(h).
The Safe Drinking Water Act provides that EPA may only identify a variance technology if it "is
protective of public health," 42 U.S.C. § 300g-l(b)(15)(B), and any variance granted must "not result
in an unreasonable risk to health." 42 U.S.C. § 300g-4(a)(l)(A).
EPA can use its discretionary power to address impacts on communities of color and low-
income communities at any of these stages. For example, pollutant listings could take into account
cumulative and synergistic effects, impacts on sensitive populations, and other relevant concerns.
Clean Water Act effluent limitation guidelines can be revised to address environmental justice
considerations if EPA deems those considerations "appropriate," a term that confers substantial
discretion. The agency also can establish more stringent effluent limitations pursuant to "any" state
or federal law or regulation, which presumably includes NEPA and Tide VI of the Civil Rights Act.
Environmental justice impacts also might be taken into account in decisions to grant or deny
variances from technology-based standards.
The Clean Air Act toxics program likewise calls for EPA to make discretionary judgments in
numerous areas relevant to low-income communities.and communities of color. Similar
opportunities exist under other environmental programs that authorize technology-based
performance standards, such as New Source Performance Standards under the Clean Ak Act and
Maximum Contaminant Levels under the Safe Drinking Water Act. While each program has its
own nuances, these kinds of technological performance standards are quite amenable to
reconsideration and revision to address environmental justice issues.
B. Design and Practices Standards
A second class of standards actually requires the use of specified technologies or
management practices to control pollution. RCRA, for example, requires those who manage
hazardous waste to conform with a host of highly specific design and management standards for
waste generation, transport, and disposal. Mobile source controls under the Clean Ak Act are
-------
another example, enabling EPA to specify design standards for such things as fuel content and
vehicle refueling practices.
Here, too, the agency has wide latitude to address environmental justice issues. Under the
RCRA provisions discussed earlier, for instance, EPA is authorized to promulgate such generator,
transporter, and treatment, storage, and disposal facilities (TSDF) standards "as may be necessary to
protect human health and the environment." 42 U.S.C. §§ 6922(a), 6923(a), 6924(a). Of particular
interest to low-income communities and communities of color, RCRA empowers EPA to establish
specific design and management standards for "the location, design, and construction" of TSDFs.
42 U.S.C. § 6924(o)(7).
Similarly, Superfund's National Contingency Plan (NCP) can become another vehicle for
promoting environmental justice through design and management standards. Section 105(a) of the
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) requires the
NCP to include methods for discovering and investigating sites, evaluating and remedying releases,
and determining the nature and extent of removal and remedial actions. 42 U.S.C. § 9605(a). The
NCP also must include criteria for cleanup priorities that address the "relative risk or danger to the
public health or welfare or the environment," taking into account the "population at risk," and other
"appropriate factors." Id. .
C.
Harm-Based Standards
Harm-based standards establish the allowable concentrations of pollution in the
environment necessary to protect public health and environmental quality, typically with an "ample"
or "adequate" margin of safety. E.g., 42 U.S.C. § 7409(b)(l) (Clean Air Act); 33 U.S.C. § 1317(a)(4)
(Clean Water Act). Regulators extrapolate from these levels of pollution to particular control
measures for individual sources, within an area. Harm-based standards accomplish the goals of
environmental protection in a way that theoretically is the opposite of technology-based standards.
Technology-based standards start with the capabilities of the best-performing sources, which are
then applied universally in the hope that a healthy environment will result. Harm-based standards,
by contrast, start with a desired endpoint measure of environmental quality, which is then translated
into specific controls on pollution sources in the hope that such controls will produce the endpoint.
The difficulties inherent in creating and implementing harm-based standards led to an apparent
eclipse of this technique by technology-based standards from the mid-1970s through the early 1990s.
Regulation of toxic water pollution and toxic air pollution, for example, both have shifted from a
health-based system to a primarily technology-based regime. See 33 U.S.C. § 1317; 42 U.S.C. § 7412.
But as systems of technology-based control reach their effective limits, harm-based regulation has
returned as an essential component of second-generation environmental regulation.
For example, National Ambient Air Quality Standards (NAAQS) under the Clean Air Act
apply to pollutants that, in EPA's judgment, cause or contribute to air pollution that "may
reasonably be anticipated to endanger public health and welfare," and that are emitted "from
numerous or diverse mobile or stationary sources." 42 U.S.C § 7408(a)(l). EPA has established
NAAQS for six criteria air pollutants: particulate matter, sulfur dioxide, nitrogen oxides, carbon
monoxide, ozone and its precursors, and lead. The agency has the authority to add more pollutants
to this list. Id. For each such pollutant, EPA must establish primary and secondary NAAQS. 42
-------
U.S.C § 7409. Primary NAAQS are set at levels necessary to protect public health with "an
adequate margin of safety." Secondary NAAQS are set at levels necessary to protect the public
welfare from adverse effects of pollutants. Welfare effects are broadly defined to include, among
other things, effects on vegetation, man-made materials, economic values, and personal comfort and
well-being. 42 U.S.C § 7602(h).
The NAAQS program offers numerous opportunities to promote environmental justice.
EPA has discretion, for example, to craft NAAQS that would be protective of sensitive
subpopulations, such as urban children. In fact, the agency's failure to adequately explain its
decision not to issue a short-term sulfur dioxide NAAQS to protect asthmatic residents of urban
areas led to a remand va. American ~LungAss'n v. 'EPA, 134 F.3d 388, 389 (D.C. Cir. 1998). The court
held that the standards "must protect not only average healthy individuals, but also 'sensitive
citizens' — children, for example, or people with asthma, emphysema, or other conditions rendering
them particularly vulnerable to air pollution." The "margin of safety" language applicable to primary
NAAQS could support a decision to err on the side of caution when dealing with criteria pollutants
in low-income communities and communities of color. Likewise, secondary NAAQS could
potentially take into account economic impacts, as well as many of the less tangible impacts of ak
pollution on the "welfare" of these communities, such as noise, odors, and traffic.
The promulgation of water quality criteria and resulting effluent limitations under the Clean
Water Act gives EPA further opportunities to use harm-based rules to address environmental justice
issues. If, in EPA's judgment, application of technology-based effluent limits alone would not
assure attainment or'maintenance of at least the "fishable/swimmable" standard of water quality, the
agency must issue more stringent limitations to meet that standard. 33 U.S.C. § 1312(a). Although
EPA has yet to use this authority, it could do so in selected areas where fishing, for example, is an
essential source of food or the object of cultural practices. Similarly, states have the primary
authority to select designated uses for waters within their boundaries and to establish water quality
standards necessary to meet the designated uses. 33 U.S.C. § 1313. EPA retains considerable power
to guide, oversee, and if necessary, to take over these decisions. Federal water quality guidelines are
a primary source for state action in this area, and the guidelines could be revised to address
environmental justice concerns. EPA also has approval authority over state total maximum daily
load (TMDL) allocations for impaired waters, and the agency may issue its own TMDLs if it
disapproves a state's plan. As explained in greater detail in Chapter 10 of this report, the TMDL
program is especially well-suited to address the distributional consequences of water pollution.
D. Standards for Regulating Substances
Finally, EPA has considerable discretion to regulate certain chemical substances under its
pollution control authorities, even where the substances are not expressly designated in the statutes.
As noted above, the agency may bring additional pollutants under the technology-based
performance standards of the Clean Air Act and Clean Water Act. Similar authority for EPA to add
to the number of substances it regulates is found in RCRA, which contains an expansive definition
of "hazardous waste" and allows EPA to consider numerous factors in determining whether the
definition is met, 42 U.S.C. §§ 6903(5), 6921. In addition, CERCLA provides the agency with
authority to designate as hazardous any substances that "may present substantial danger to the
public health or welfare or the environment." 42 U.S.C. 9602 (a). Each of these provisions afford
10
-------
discretion for the agency to consider cumulative and synergistic effects, impacts on sensitive
populations, and other environmental justice issues when designating substances for regulation.
11
-------
12
-------
CHAPTERS
PERMITTING AND OTHER APPROVALS
Permits and permitting procedures are at the core of EPA's authority under most major
pollution control statutes. Siting permits or approvals help determine where industrial and waste
disposal facilities may be located, and under what circumstances. Operating permits translate
general environmental standards into specific discharge and emissions limitations, incorporate
monitoring, reporting, and other related requirements, and provide a basis for subsequent
enforcement actions. And "registrations" or "listings" of chemical substances regulate whether,
how, and in what quantities those substances may be manufactured, distributed, and used. In
addition, the various permit application and review processes offer perhaps the most important -
and certainly the most immediate — opportunity for communities to participate in decisions that
affect their health and environment.
For all these reasons, permitting has long been a focus of the environmental justice debate.
Activists, regulators, and industry all agree that "EPA needs to address the issue of incorporating
environmental justice considerations in permitting because communities increasingly are insisting
upon a broader view of permitting and because neither companies nor permit writers know what is
expected of them." NATIONAL ENVIRONMENTAL JUSTICE ADVISORY COUNCIL, ENVIRONMENTAL
JUSTICE IN THE PERMITTING PROCESS App. A, "Pre-Meeting Report," at 3 (U.S. Environmental
Protection Agency, pub., EPA 300-R-00-004, July 2000) [hereinafter "NEJAC Permitting Report"].
Previous studies have examined EPA's existing legal authority to incorporate environmental justice
concerns into the permitting process. See Richard J. Lazarus & Stephanie Tai, Integrating
Environmental Justice into EPA Permitting Authority, 26 ECOL. L.Q. 617 (1999) [hereinafter "Lazarus &
Tai"]; Memorandum from Gary S. Guzy, U.S. EPA Office of General Counsel, EPA Statutory and
Regulatory Authorities Under Which Environmental justice Issues May Be Addressed in Permitting
(Dec. 1, 2000) [hereinafter "OGC 2000 Memorandum"]. This report examines some of these ideas,
and also includes an analysis of statutory provisions that have not previously been analyzed in the
environmental justice context. The report makes it clear that ample opportunity exists for EPA to
exercise its discretion to incorporate environmental justice considerations in the permitting process.
Much of the discussion of EPA's permitting authority centers on two related questions: (1)
whether the agency may deny a permit on environmental justice grounds; and (2) whether it may
place conditions on a permit that specifically address issues of concern to low-income communities
and communities of color. Lazarus & Tai at 619. Arguments for taking such actions are based on
the full range of environmental justice issues, including disproportionate impacts, cumulative or
synergistic impacts, effects on sensitive populations, unique exposure pathways, and cultural and
socio-economic considerations. Along with outright denial of permits or bans on particular
substances or practices, the conditions that have been proposed as falling within EPA's authority
include site-specific mitigation measures, heightened monitoring requirements, advanced pollution
prevention and best management practices, specialized control technology, enhanced public
participation procedures, information disclosure, and community inspections. NEJAC Permitting
Report at 24-30.
13
-------
These environmental justice issues, and their potential remedies, are rarely mentioned
explicitly in the permitting provisions of a specific statute or regulation. Instead, EPA's authority to
consider them generally is based on its broader statutory authority to "protect human health and the
environment," or to take "appropriate" or "necessary" action to carry out a statute's purposes and
goals. Thus, EPA's exercise of its discretion to consider environmental justice in permitting is
subject to the same analysis as the permitting process generally - which in turn is similar to the
analysis undertaken when EPA invokes these general statutory provisions to set standards or to take
enforcement measures. As discussed in the preceding chapters of this report, EPA has great latitude
to take a broad range of actions, provided: (1) the agency's action is not contrary to Congress's
unambiguous intent, as expressed in the authorizing statute; and (2) the agency's interpretation of
the statute as allowing consideration of environmental justice issues is a "reasonable" one.
If these legal standards are met, courts generally review EPA's issuance or refusal to issue a
permit on a case-by-case basis using the "arbitrary, capricious, abuse of discretion, or otherwise not
in accordance with law" standard given in the Administrative Procedure Act, 5 U.S.C. § 706(2)(A).
Mueller v. EPA, 993 F.2d 1354,1356 (8th Cir. 1993). As long as EPA considers aU relevant factors
and its decision contains no clear error of judgment, the court cannot substitute its judgment for the
agency's. Id. (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971)). To
determine if the agency's decision is arbitrary and capricious or an abuse of discretion, the court
must look to the statute or regulations that EPA is attempting to implement, and much of the
analysis will be based on specific arguments surrounding the issuance or denial of the permit. For
example, in Sur Contra La Contamination v. EPA, 202 F.3d 443 (1st Cir. 2000), an environmental
group challenged EPA's issuance of a Clean Air Act "prevention of significant deterioration" (PSD)
permit to a power plant. Id. at 445. The court examined the regulations governing PSD permits
before determining that EPA had not abused its discretion in issuing the permit. Similarly, in
Defenders of Wildlife v. Browner, 191 F.3d 1159 (9th Cir. 1999), an environmental group challenged
EPA's decision to issue a Clean Water Act discharge permit to five municipalities, arguing that the
permit was required to include numeric effluent limitations rather than best management practices.
The court examined the statutory section at issue and found that it provided the agency with
discretion to determine appropriate control measures. Id. at 1166. Accordingly, if EPA stays within
the language of the statute and its regulations, courts will grant it broad discretion to fashion
appropriate permit conditions.
The EPA Environmental Appeals Board (EAB) has addressed the specific issue of the
agency's authority to consider environmental justice factors in the permitting process. As noted in
the preceding chapter, in In re Chemical Waste Management of Indiana, Inc., the Board interpreted the
Resource Conservation and Recovery Act's (RCRA) "omnibus clause," which provides that RCRA
permits "shall contain such terms and conditions as the Administrator (or the State) determines
necessary to protect human health and the environment." 6 E.A.D. 66 (June 29, 1995); 42 U.S.C. §
6925(c)(3). The Board rejected claims that the clause requires EPA to include environmental-justice-
related conditions in permits, but held that it is well within the agency's discretion to do so, as long
as the conditions are related to the statutory goal of protecting health or the environment. 6 E.A.D.
at 75. The Board concluded that the ckuse allows EPA to "tak[e] a more refined look" at adverse
health and environmental impacts where claims of disparate impact on minority or low-income
communities are present. Id.; Lazarus & Tai at 662-63. The EAB has reached similar results under
a regulatory omnibus provision in the Safe Drinking Water Act and the PSD permitting provision of
14
-------
the Clean Air Act. In re Envotech, L.P., 6 E.A.D. 260, 281,1996 WL 66307 (Feb. 15,1996); In reAES
Puerto Rzco,L.R, 8 E.A.D. , 1999 WL 345288 (May 27,1999). '
Using these cases as a starting point, this report analyzes these and other statutory and
regulatory provisions that provide EPA with similar discretion and opportunities to address
environmental justice issues in the permitting process. A detailed discussion of these provisions and
their environmental justice implications is found in the individual chapters for each statute that
contains permitting or permit-like provisions. Some cross-cutting themes, common language, and
highlights of these chapters are discussed here, under three broad headings that correspond to
different types of "permits": siting permits or assessments, operating permits, and registration or
listing of chemical substances.
I.
SITING PERMITS OR ASSESSMENTS
Siting of industrial facilities and other potentially polluting activities raises important
environmental justice questions. To the extent that claims of disproportionate impact rest upon the
concentration of sources within a geographic area or their proximity to sensitive populations, siting
decisions become crucial to ensuring that no single community bears more than its fair share of the
impacts. Since most land-use and zoning decisions are made at the state and local levels, EPA has
comparatively little opportunity to weigh in on siting issues generally. However, the agency has
considerable authority over a number of important issues carved out by the federal environmental
statutes. Specifically, the agency has authority to address siting decisions that involve: (1) geographic
areas where the federal government has specialized jurisdiction, such as wetlands and coastal zones;
(2) concentrations of pollutants, such as non-attainment areas under the Clean Air Act; (3) heavily
regulated facilities, such as waste disposal sites and incinerators; and (4) the federal government's
own activities that impact the environment. Within these realms, EPA has broad discretion and
numerous opportunities to consider and address environmental justice issues in siting decisions. Its
authority to do so often is based on language that requires an "assessment" of the health or
environmental impacts — which may include cumulative impacts — of siting an activity or facility, or
an analysis of "alternatives" to a proposed project, which may include alternative sites or forgoing
the project entirely.
A good example is federal dredge-and-fill permitting under Section 404 of the Clean Water
Act. Dredge-and-fill activity can have considerable impact on low-income communities and
communities of color, including health concerns from the disruption of toxic sediment, disturbance
or destruction of fisheries and hunting habitat, and flooding of Native American tribal lands or
cultural resources. See Barry E. Hill & Nicholas Targ, The Unk between Protecting Natural Resources and
the Issue of Environmental justice, 20 B.C. ENVTL. AFF. L. REV. 1, 33 (2000) [hereinafter "Hill & Targ"].
Although the Army Corps of Engineers has primary responsibility for administering the Section 404
permitting program, it must do so within environmental guidelines that are produced by EPA,' and
EPA retains veto authority over individual permits.
Through a detailed public notice-and-comment procedure, the Corps and EPA must
consider whether a project has "practicable alternatives" that would have less adverse ecological
impact; whether it would threaten water quality or endangered species, or cause "significant
15
-------
degradation" to drinking water supplies and fish and wildlife habitat; whether the proponent has
taken all "appropriate and practical "steps" to minimize and mitigate impacts at the proposed site;
and whether the project would contribute unacceptably to cumulative impacts in the surrounding
area. 40 C.F.R. §§ 230.10, 230.11. This Section 404 process provides ample opportunity for
considering and addressing disproportionate impacts and other environmental justice issues, as well
as a public forum in which the affected communities can express their concerns. Hill & Targ at 27-
36. Similar requirements govern EPA's and the Corps' determination of ocean dumping sites under
the Marine Protection, Research, and Sanctuaries Act. OGC 2000 Memorandum at 9-10.
Likewise, the National Environmental Policy Act (NEPA) requires an environmental impact
statement (EIS) or environmental assessment (EA) for "major federal actions significantly affecting
the quality of the human environment." 42 U.S.C. § 4332(2) (C). The EIS or EA usually is
conducted by the federal agency that is proposing a project, under the oversight of the Council on
Environmental Quality (CEQ). Where an EIS or EA is required, it must include an analysis of
environmental, socio-economic, demographic and cultural impacts, alternatives to the proposed
project (including the "no action" alternative), and minimization and mitigation measures. CEQ has
issued guidance to federal agencies on including environmental justice considerations in their NEPA
analyses, and EPA has issued its own guidance for the agency's participation in NEPA procedures.
U.S. EPA Office of Federal Activities, Final Guidance for Incorporating Environmental Justice
Concerns in EPA's NEPA Compliance Analyses (April 1998).
This participation takes three forms. First, like all federal agencies, EPA is required to
interpret its authorities and carry out its activities, including permitting decisions, in conformance
with NEPA goals "to the fullest extent possible," whether or not a formal EIS or EA is required. 42
U.S.C. § 4332(1). Second, as discussed in the NEPA chapter of this report, EPA could voluntarily
elect to submit more of its decisions to the EIS process, even decisions that might otherwise be
exempt from NEPA. Third, EPA has special responsibility for ensuring that other federal agencies
comply with NEPA. For example, under Section 309 of the Clean Air Act, the agency has authority
to review and comment on the EISs of other agencies, and to refer issues to the CEQ for resolution.
42 U.S.C. § 7609. Even when implemented to their fullest extent, these NEPA requirements are
largely procedural; they require review and discussion of potential environmental impacts, but do
not directly lead to the issuance or denial of a permit. Nevertheless, their outcomes and factual
findings can carry weight in substantive permitting decisions. They can lead to the redesign or
relocation of projects, and influence public opinion about a proposed decision. EPA can use its role
as the guardian of NEPA values to ensure that environmental justice issues are fully considered in
federal siting decisions.
The major pollution control statutes also provide EPA with authority to address siting issues
in heavily impacted areas. For example, in the Clean Air Act, new source review (NSR) permits
under Section 173(a)(5) may only be issued if an "analysis of alternative sites, sizes, production
processes, and environmental control techniques for the proposed sources demonstrates that the
source's benefits significantly outweigh the environmental and social costs imposed as a result of its
location, construction, or modification." 42 U.S.C. § 7503(a)(5). The analysis of "social costs" could
include a wide variety of impacts on affected communities, and lead to a determination that
alternative sites •would be preferable from an environmental justice perspective. OGC 2000
Memorandum at 11. Likewise, prevention of significant deterioration permits under Section
16
-------
165(a)(2) requke analysis of "the ak quality impact of the source, alternatives thereto, control
technology requirements, and other appropriate considerations." 42 U.S.C. § 7475(a)(2). Given the
broad wording of these provisions, EPA can exercise its discretion to consider environmental justice
claims, including the possibility of alternative sites, in instances where it is administering the NSR or
PSD program. E.g., In re AES Puerto Rico, 8 E.A.D. , 1999 WL 345288 (May 27, 1999). The
agency also can contribute its analysis of environmental justice issues where the programs have been
delegated to a state or tribal permitting agency.
Clean Water Act regulations provide that in impaired water basins, "no permit may be issued
to a new source or a new discharger, if the discharge from its construction or operation will cause or
contribute to the-violation of water quality standards." 40 C.F.R. § 122.4(i). At minimum, this
requirement shifts the burden to permit applicants to show that construction or operation of their
facility in a specific site will not further degrade water quality; carried further, the requirement could
lead to a moratorium on siting or constructing any new sources in basins that are already impaired
by multiple sources. Similarly, applications for RCRA land disposal permits must include detailed
information about potential releases and exposure pathways at the proposed site — information that
EPA can use to require a comprehensive health assessment if the agency determines that the
proposed facility "poses a substantial risk to human health" at the proposed site. 42 U.S.C. § 6939a.
II. OPERATING PERMITS
EPA exercises even more substantial discretion when administering the operating permit
programs that are at the heart of most major pollution control statutes. As discussed earlier, EPA's
grant of authority often takes the form of general or "omnibus" provisions that give the agency
discretion to decide what measures are "necessary" or "appropriate" to protect health and the
environment or otherwise to advance the purposes of a particular statute. In addition to the RCRA
omnibus clause, which has been extensively analyzed by the Environmental Appeals Board and is
discussed above, there are similar — and sometimes untested — provisions in each of EPA's media-
specific statutes. These provisions supply EPA with general authority to consider environmental
justice issues when deciding whether to deny or to place conditions on operating permits. In
addition, a number of specific statutory sections and regulations spell out in more detail the precise
types of conditions that EPA may wish to place on permits, many of which are amenable to
environmental justice goals.
RCRA's omnibus provision has its counterparts in Clean Ak Act Section 504(a), which
provides that Tide V operating permits "shall include . . . such other conditions as are necessary to
assure compliance with applicable requkements of this chapter," 42 U.S.C. § 7661 c(a); in Clean
Water Act Section 402(a)(l), which in certain ckcumstances allows EPA to impose on discharge
permits "such conditions as the Administrator determines are necessary to carry out the provisions
of [the Act]," 33 U.S.C. § 1342(a)(l); and in Safe Drinking Water Act regulations, which authorize
underground injection permit conditions "necessary to prevent the migration of fluids into
underground sources of drinking water," 40 C.F.R. § 144.52(a)(9); Envotech, 6 E.A.D. at 281.
Though similarly worded, each of these broad provisions must be interpreted in light of thek
respective statutory goals and framework, which are analyzed in the individual chapters. But as a
general matter, the statutes' common mandate for protecting human health and the environment,
17
-------
read with the discretion afforded by the Chemical Waste Management and Envotech decisions, gives EPA
ample authority to consider in the permitting process cumulative impacts, sensitive populations,
unique exposure pathways, and other environmental justice concerns where the agency is the
permitting authority.
Permitting provisions also give EPA broad authority to impose many different types of
conditions in order to further statutory purposes and assist with enforcement. Most of these are
routinely used in practice, and could be adapted to advance environmental justice goals. For
example, Section 504(c) of the Clean Air Act requires permits to include inspection, entry,
monitoring, compliance, certificationj and reporting requirements, 42 U.S.C. § 7661c(c); Section
402(a)(2) of the Glean Water Act authorizes the Administrator to prescribe conditions to assure
compliance with discharge permits, "including conditions on data and information collection,
reporting, and such other requirements as he deems appropriate," 33 U.S.C. § 1342(a)(2); any
variances from the Safe Drinking Water Act regulations for public water systems "shall be
conditioned on such monitoring and other requirements as the Administrator may prescribe," 42
U.S.C. § 300g-4(a)(l)(B); and RCRA land disposal permits must include information that is useful
for emergency planning and response, 42 U.S.C. § 6939a. Through careful case-by-case
consideration of the factual circumstances surrounding specific permitting decisions, the agency
could tailor each of these tools to improve the flow of information to low-income communities and
communities of color, to enhance those communities' capacity to ensure that facilities comply with
operating permits, and to address other environmental justice concerns. See Lazarus & Tai at 631-
648.
Operating permits also serve the function of translating general environmental standards
into specific, often numerical, discharge or emissions limitations. They are "where the rubber hits
the road" in implementing standards, and a crucial step in determining how the policy tradeoffs and
risk calculations that are implicit in those standards will be borne by various populations or sub-
populations. NEJAC Permitting Report, App. A, "Pre-Meeting Report," at 3. In particular,
ambient pollution standards, such as those found in the Clean Air and Clean Water Acts, present
EPA and other permitting agencies with a great deal of flexibility to distribute environmental
benefits and burdens across a given airshed, watershed, or political jurisdiction, or across different
categories of pollution sources. This flexibility can create both equities and inequities, depending on
how it is applied. For these same reasons, equity issues also are raised when implementing emissions
trading programs, such as those created by the Clean Air Act. Id. at 31-32. EPA's implementation
of these permitting processes and its oversight of state implementation present potential
opportunities for the agency to address environmental justice concerns.
For example, water quality standards established under Section 303 of the Clean Water Act
may require a "total maximum daily load" (TMDL) to be set for specific pollutants within an
impaired water body. 33 U.S.C. § 1313. This TMDL must then be allocated among all sources
contributing to pollution in the water body, which may include both point sources regulated by
discharge permits and presently unregulated nonpoint sources. See OLIVER A. HOUCK, THE CLEAN
WATER ACT TMDL PROGRAM: LAW, POLICY AND IMPLEMENTATION (l 999). Converting a TMDL
into specific permit limits and other kinds of enforceable measures requites "a series of judgments
with clearly distributional consequences," which EPA has authority to ensure do not fall unfairly on
low-income communities or communities of color. Lazarus & Tai at 640. Similarly, under the
18
-------
Clean Ak Act, national ambient air quality standards are met through state implementation plans
(SIPs) and federal implementation plans (FIPs) that allocate total pollutant loadings among
permitted sources. 42 U.S.C. § 7410. In areas where EPA administers the Act through a FIP, the
agency has authority to examine these allocations for their environmental justice implications,'and it
may also have some ability to review or to influence state-administered allocations under a SIP 42
U.S.C. § 7410(a)(2)(E); see Lazarus & Tai at 633.
III. REGISTRATION OR LISTING OF CHEMIGAL SUBSTANCES
A final type of permit targets potentially polluting substances rather than pollution sources or
releases into specific media. These "registrations" of pesticides under the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA), "tolerances" for pesticide residue under the Federal Food,
Drug, and Cosmetic Act (FFDCA), and approvals of new manufactured chemical substances under
the Toxic Substances Control Act (TSCA) govern the manufacture, processing, distribution, use,
and disposal of chemicals within their purview. Their procedures largely presume that use of a
substance will be approved unless EPA makes an affirmative finding that its use will adversely affect
health or the environment. Nevertheless, EPA's mandate under these statutes to collect
comprehensive data to assess a substance's health and environmental effects from a variety of
possible uses, and its ability to prohibit or to condition certain uses, provides a preventative
approach that the agency can use to address environmental justice concerns.
One such provision is Section 3(c) of FIFRA, which requires EPA to register a pesticide for
use unless it is shown to cause "unreasonable adverse effects on the environment," and to issue a
conditional registration if there is insufficient data to make this determination. 7 U.S.C. § 136a(c).
Similarly, TSCA Section 5 requires EPA to decide whether the proposed manufacture or use of a
new chemical substance on the TSCA chemical inventory may pose an "unreasonable risk of injury
to health or the environment," and if necessary to prohibit or condition this activity while data on
the substance's effects are developed. 15 U.S.C. § 2604(e). The analysis of "unreasonable" adverse
effects could include consideration of those effects on low-income communities and communities
of color. In the case of FIFRA, for example, it encompasses "any unreasonable risk to man or the
environment, taking into account the economic, social, and environmental costs and benefits of the
use of any pesticide." 7 U.S.C. § 136(bb).
In order to make these determinations, EPA is authorized to collect substantial amounts of
data from the parties proposing to manufacture or use a chemical substance or pesticide. FIFRA
applicants must supply detailed information about the pesticide's chemical makeup and effects, and
can be required to supplement this information even after registration through an EPA-initiated
"data call-in." 7 U.S.C. § 136a(c)(2)(B). TSCA pre-manufacture notices must be accompanied by any
test data the party knows about or could reasonably ascertain. 15 U.S.C. § 2604(d)(l). Under either
statute, EPA could consider the need to include data on a substance's persistence in the
environment and its cumulative and synergistic impacts, as well as demographic and other
information useful for determining its impacts on low-income communities and communities of
color. See Memorandum from Howard F. Corcoran, U.S. EPA Office of General Counsel,
Environmental Justice Law Survey (Feb. 25,1994) [hereinafter "OGC 1994 Memorandum"].
19
-------
Once EPA has made its determination as to a chemical's health and environmental effects,
the agency may place restrictions on how the chemical is used. Under TSCA, EPA may prohibit or
limit the manufacture, processing, distribution, use or disposal of a substance, or any combination of
those activities while health and environmental data are being developed. 15 U.S.C. § 2604(e)(l)(A).
Since these restrictions apply only to the party that submitted the notice, they may be tailored to the
particular circumstances of a manufacturer that may be located near low-income communities or
communities of color, or that is producing a chemical that is of speckl concern to those
communities. Similarly, under FIFRA, EPA may decide to classify a pesticide as "restricted use,"
and impose specific conditions on its user 7 U.S.C. § 136a(d). These conditions often include locale-
specific restrictions that typically relate to geography, climate, or the presence of an endangered
species. See OGC 1994 Memorandum. Similar restrictions could be imposed to take account of the
presence of sensitive populations or multiple pollution sources at a specific site.
20
-------
CHAPTER 4
DELEGATION OF PROGRAMS TO STATES AND TRIBES
Most major pollution control statutes authorize EPA to delegate significant programmatic
responsibility for permitting, monitoring, and enforcement to state and tribal governments.
Program delegation reflects a deliberate tension that is inherent in pur federal system of laws, and
the environmental laws are no exception. On the one hand, modern pollution control statutes are
specifically designed to establish national standards and to provide for uniformity in their
implementation and enforcement; in many cases, they were expressly enacted to supplant a
patchwork of inconsistent and ineffective state laws. On the other hand, the statutes also reserve a
large, and sometimes primary, role for state and tribal governments, for a variety of reasons: a policy
preference for "states' rights" and tribal sovereignty; the time-honored notion that diverse
approaches create a "laboratory" for improving both state and federal law; and recognition that
states and Tribes are more aware of, and better positioned to respond to, conditions in the field.
The purpose of delegating EPA's authority is to strike a balance between these two sets of goals, and
to ensure that federal and state expertise and resources are put to their most effective uses. At the
same time, federal kw continues to be the ultimate source of authority for implementing these
programs, and EPA retains an important oversight function in all of them.
Since many EPA programs have in fact been delegated to a large majority of the states, it is
impossible to examine EPA's authority for advancing environmental justice goals without also
examining the role of delegation. Delegation forms the backdrop for much of the discussion of the
standard setting, permitting, and enforcement provisions in this report, and it also raises
environmental justice issues in its own right. Numerous practical and political issues complicate the
exercise of federal oversight. This chapter discusses the statutory authorities that can potentially be
used to address environmental justice issues at several key points in the delegation process: approval
of delegated authority, ongoing oversight of state actions and review of state-issued permits, parallel
enforcement action, and partial or total revocation of delegated authority.
I.
APPROVAL OF DELEGATED AUTHORITY
With the exception of the Comprehensive Environmental Response Compensation and
Liability Act (CERCLA), which has no delegated programs, the delegation provisions of EPA's
major statutes are substantially similar. See 33 U.S.C. § 1342 (CWA National Pollutant Discharge
Elimination System); 33 U.S.C. § 1344 (CWA dredge-and-fill permits); 42 U.S.C. § 300g-2 (SDWA
public water systems regulation); 42 U.S.C. § 300h (SDWA underground injection control); 42
U.S.C. § 6926 (RCRA); 42 U.S.C. § 7410 (CAA state implementation plans (SIPs)); 15 U.S.C. § 2684
(TSCA lead programs); 7 U.S.C. § 136w (FIFRA pesticide use enforcement). Delegation generally
begins with a formal application by the state or tribal government for federal authorization, which is
reviewed by EPA through a public process. Most of the statutes require EPA to determine whether
the state's or Tribe's laws and proposed measures provide adequate personnel, funding, and
authority to carry out the federal program. Once these findings are made and other applicable
21
-------
requkements are met, EPA approves the program and cedes the appropriate elements of its
authority within that jurisdiction. Citizens generally will be given an opportunity to participate in
EPA's decision. For example, the Clean Water Act regulations require EPA to hold a public hearing
on the delegation decision "if interest is shown," and to consider and respond to comments
received. 40 C.F.R. §§ 123.1 (e), 123.61. Similarly, the Safe Drinking Water Act's Underground
Injection Control program requires a public hearing and a "reasonable opportunity for presentation
of views" before EPA may make a final decision on delegation. 42 U.S.C. §§ 300h(b)(2) & (4).
EPA has authority to consider environmental justice issues during this approval process.
To begin with, individual states and Tribes generally may not propose environmental standards or
requkements that are any less stringent than the federal requirements, though they may exceed
them. E.&, 33 U.S.C. § 1342(o)(l) (CWA); 42 U.S.C. § 300g-2(a) (SDWA); 42 U.S.C. § 6929
(RCRA). Thus, a broad EPA interpretation of the agency's own mandate to protect low-income
communities or communities of color in implementing its programs could translate into additional
requkements when those programs are delegated to the state or tribal level. Further, where the
agency is authorized to examine in detail the state's or Tribe's capacity to actually carry out a
program, that inquiry could include consideration of how the proposed allocation of budget, staff,
and other resources may affect these communities. In some cases, EPA also may issue a partial
approval of a state program, and requke revisions to the remaining portions. E.g., 42 U.S.C.
§7410(k) (CAA SIPs).
Additional EPA authority is provided by specific provisions of the individual statutes. The
Clean Ak Act requkes that states' proposals to carry out state implementation plans (SIPs) must not
be "prohibited by any provision of Federal or State law," 42 U.S.C. § 7410(a)(2)(E). Some have
argued that this condition includes the responsibility to ensure that SIPs comply with Title VI of the
Civil Rights Act or other relevant laws. Richard J. Lazarus & Stephanie Tai, Integrating Environmental
Justice into EPA. Permitting Authority, 26 ECOL. L.Q. 617, 633 (1999) [hereinafter "Lazarus & Tai"].
Clean Water Act regulations specifically requke state programs to provide for public participation,
including judicial review of permit approvals, citizen intervention in enforcement actions, and state
agency response to citizen complaints. 40 C.F.R. §§ 123.27(d), 123.30. These requkements could be
reviewed or revised with special attention to whether the state program meets the needs and builds
the capacity of low-income communities and communities of color. Section 4002 of the Resource
Conservation and Recovery Act (RCRA), which authorizes consideration of "political" factors, may
offer a similar opportunity for EPA to incorporate both substantive and procedural envkonmental
justice measures into its guidelines for approving state solid waste management plans. 42 U.S.C. §
6942(c) (9); Lazarus & Tai at 646-47.
II. EPA OVERSIGHT AND PERMIT REVIEW
Even after a program has been delegated, EPA often retains oversight of various state
actions and decisions. Since this oversight authority goes to the heart of federal-state relations, it
can be politically sensitive and difficult for EPA to exercise, and the agency historically has been
reluctant to do so. Nevertheless, it has an ample basis in the laws. For example, under the Clean
Ak Act, EPA has authority to impose discretionary sanctions against states, including withholding of
federal highway funds, "at any time .. . the Administrator makes a finding, disapproval, or
22
-------
determination" that it is necessary for ensuring that any SIP or portion of a SIP meets the
requirements of the Act. 42 U.S.C. 7410(m) (emphasis added). While drastic, such federal funding
sanctions provide a powerful lever that has been used in a variety of other contexts; EPA could
explore the possibility of applying them to ensure uniform implementation of standards, site-specific
permit conditions, or other policies that help promote environmental justice. Memorandum from
Howard F. Corcoran, U.S. EPA Office of General Counsel, Environmental Justice Law Survey
(Feb. 25,1994) [hereinafter "OGC 1994 Memorandum"]. Similarly, the Clean Water Act authorizes
EPA to make grants to assist states in administering programs, and requires the agency to withhold
grant monies from states that fail to conduct adequate water quality monitoring and reporting. 33
U.S.C. § 1256. Although the Clean Water Act lacks financial leverage of the magnitude of federal
highway funding under the Clean Air Act, this authority also could be directed to address
environmental justice issues. Other funding provisions are discussed in Chapter 7 of this report.
In addition, some statutes give EPA specific authority to review proposed state permits,
object to their issuance, and in some cases to exercise a veto. Under the Clean Air Act, EPA may
review, comment on, and take any other necessary actions to ensure that draft new source review
permits comply with EPA's rules, the SIPs, and the Act. 42 U.S.C. § 7503; see Memorandum from
Gary S. Guzy, U.S. EPA Office of General Counsel, EPA Statutory and Regulatory Authorities
Under Which Environmental Justice Issues May Be Addressed in Permitting, at 10 (Dec. 1, 2000).
Similarly, the Clean Water Act authorizes EPA to review state-issued discharge permits and dredge-
and-fill permits, and to object in writing to the issuance of any permit "as being outside the
guidelines and requirements of the Act; if the state fails to address EPA's objections following a
public hearing, the agency may issue its own, federal version of the permit. 33 U.S.C. §
1342(d)(2)(B); 33 U.S.C. § 1344®. Depending on the circumstances, such ongoing review processes
may provide an additional opportunity, and an additional forum, for incorporating environmental
justice concerns into operating permits.
Under RCRA, EPA is entitled to participate in the public notice-and-comment period on
proposed state-issued permits. 40 C.F.R. § 271.19(a). If the state has been delegated EPA's
"omnibus authority" to protect human health and the environment, but fails to address factors
identified by EPA as necessary for doing so, EPA can seek to enforce its comments and have the
state include appropriate permit conditions; if the state has not been delegated omnibus authority,
EPA can impose the conditions directly in the federal portion of the permit. 40 C.F.R. § 271.19(e);
see OGC 1994 Memorandum. This authority could be used to address several environmental justice
concerns in permitting, including the kind of disparate impact analysis expressly authorized by the
Chemical Waste Management decision. Finally, although the Safe Drinking Water Act has no
permitting program for public water systems, EPA is authorized to review state-issued variances
from national primary drinking water regulations, and can revoke the variances if they are an abuse
of discretion, or establish different schedules for compliance "or other requirements" as the agency
deems appropriate. 40 C.F.R. § 142.23. This review also could include environmental justice
considerations.
23
-------
III. EPA PARALLEL ENFORCEMENT
In. some statutes, even after enforcement authority has been delegated, EPA's power to
enforce permits and other requirements operates in parallel with the state or tribal government's.
Where parallel enforcement authority exists, it offers an independent basis for EPA to pursue
environmental justice goals, through the types of measures discussed in the "Enforcement" chapter
of this report. For example, the Clean Water Act expressly provides that nothing in its delegation
provisions "shall be construed to limit the authority of the Administrator" to take enforcement
action, 33 U.S.C. § 1342(z) (discharge permits); 33 U.S.C. § 1344(n) (dredge-and-fill permits).
Identical language appears in the Clean Air Act. 42 U.S.C. 7413(a)(2). Each of these statutes
provides EPA with authority either to "overfile" on state enforcement actions or to pursue an
independent enforcement agenda that could include remedying historical disparities in enforcement
and other environmental justice considerations.
In other statutes, EPA's handover of enforcement authority is more complete. Once a state
RCRA program has been approved, it operates "in lieu of the federal program, with state law
essentially displacing federal law, and EPA may not overfile on a state action or file its own action
without first giving notice to the state. 42 U.S.C. § 6926(b); see Harmon Industries, Inc. v. Browner, No.
98-3775 (8th Cir. 1999). Similarly, the pesticide use regime of the Federal Insecticide, Fungicide,
and Rodenticide Act (FIFRA) presumes that the states will have "primary enforcement authority"
once thek programs have been approved, essentially limiting EPA's role to monitoring the
program's implementation. 7 U.S.C. § 136w-l. However, the Safe Drinking Water Act's public
water system and underground injection control programs, which also give primary enforcement
authority to the states, grant EPA authority to take direct enforcement action against a violator if the
state or Tribe does not do so within 30 days after EPA gives notice. 42 U.S.C. §§ 300g-3(a)(l)(B),
300h-2(a)(2). This intermediate level of EPA enforcement authority provides another powerful tool
that the agency could use to redress disparate enforcement patterns that adversely affect low-income
communities and communities of color.
IV. REVOCATION OF DELEGATED AUTHORITY
Finally, most of the statutes that authorize delegation of EPA authority to the states and
Tribes also make some provision for its revocation and return to EPA if the authority is not being
properly used. In practice, given political considerations, the statutes' strong policy preference for
delegation, and EPA's scarce resources for assuming additional regulatory burdens, these provisions
are not often invoked. Nevertheless, they are highly relevant for delineating the boundaries of
EPA's relationship with states and Tribes, and remain a viable threat in extreme cases of state
inaction. See, e.g., Sierra Club v. Hankinson, 939 F. Supp. 865 (N.D. Ga. 1996) (citing with approval
EPA's authority to revoke a state program for failure to complete TMDLs). Further, the agency's
power to completely revoke delegated authority implies a variety of lesser-included powers and
sanctions, some of which are expressly granted by the statutory language. These include the ability
to review and object to state-issued permits or to place conditions on federal funding, as discussed
above; they also include other measures that fall short of total revocation of the delegated authority.
24
-------
For example, the Clean Air Act authorizes an entire range of discretionary sanctions, not
merely financial sanctions, where EPA finds that a permitting authority is not adequately
administering its program. 42 U.S.C. § 7509. FIFRA allows the agency, after it finds that a state's
program is inadequate and gives notice, to rescind primary enforcement responsibility "in whole or
in part." 7 U.S.C. § 136w-2(b). The Clean Water Act and Clean Air Act provide that if EPA finds
violations of state-issued permits that "are so widespread that such violations appear to result from a
failure of the State to enforce such permit conditions or limitations effectively," it must give the
state notice, and if the situation goes uncorrected, temporarily assume federal enforcement authority
until the state gives assurances that it will enforce its program. 33 U.S.C. § 1319(a)(2) (CWA); 42
U.S.C. .§ 7413(a)(2) (CAA). The Clean Water Act authorizes total revocation on a number of
grounds, including inadequate permitting, inadequate public participation, or inadequate
enforcement. 33 U.S.C. § 1342(c)(3); 40 C.F.R. §§ 123.63(a)(2) & (3). Similar revocation provisions
and authorities are found in, or have been read into, the other statutes and programs. See, e.g., 33
U.S.C. § 1344(*) (CWA dredge-and-fill permitting), 42 U.S.C. § 6926(e) (RCRA), 15 U.S.C. § 2684(c)
(TSCA); National Wildlife Federation v. El?A, 980 F.2d 765 (D.C. Ck. 1992) (SDWA). All these
authorities provide some leverage for EPA to ensure that envkonmental justice issues are
considered in state programs as well as in federal programs.
25
-------
26
-------
CHAPTERS
ENFORCEMENT
Enforcement is the process by which one party, usually a government agency, attempts to
bring another party into compliance with established norms and rules by imposing one or more
sanctions. Environmental norms and rules take many forms, from prescriptive, quantitative, or
qualitative standards for behavior to descriptions of conditions that pose a threat to the general
public health or welfare. Sanctions include any restrictions, limitations or requirements imposed on
the party against whom enforcement is brought. Enforcement is different from standard setting and
permitting, which attempt to regulate future behavior that may be expected to have adverse
environmental consequences before it occurs. In contrast, enforcement follows or responds to
behavior that has akeady failed to comply with prescribed standards. However, enforcement action
also can be forward-looking: by imposing sanctions against those who have akeady violated
established norms, enforcement also attempts to discourage and deter future violations by other
members of the regulated community that are subject to the same norms and rules.
Enforcement often is described as deterring undeskable behavior in two separate ways.
"Specific deterrence" acts to change the behavior of the party or facility that is the subject of the
enforcement action. The cost, or discomfort, of .the sanctions imposed is intended to be greater
than the benefit derived from noncompliance, so that the party subject to the sanctions eventually
returns to compliant behavior. "General deterrence" operates on the behavior of all other parties
who are subject to the same regulatory controls. Knowing of the sanctions imposed on the original
enforcement target, and imagining the impact of these sanctions on themselves, even parties not
immediately affected by the enforcement action choose to conform their behavior to the established
norms and rules.
The enforcement tools and discretion entrusted to the Environmental Protection Agency are
broad enough for innovative and imaginative application of the enforcement process to
envkonmental justice issues. This application can significantly advance the goal of ensuring fak and
equal treatment for people of all races, cultures, and incomes regarding the development,
implementation and enforcement of our envkonmental laws and policies.
I.
EPA'S AUTHORITY AND DISCRETION
As shown in the individual chapters of this report, EPA has authority to regulate activity and
safeguard the envkonment and human health across a breathtaking expanse of programs. Each of
these programs is guided by enabling legislation that establishes basic objectives for EPA and
provides tools for the agency to engage in enforcement activities. These tools include issuing an
administrative order, seeking an administrative fine, revoking or withholding a permit, bringing a
civil action in federal district court, or pursuing criminal charges through the U.S. Attorney's office.
The agency can take action against individuals, corporations, certain government entities, and other
27
-------
legal entities. While enforcement provisions vary from one environmental law to another, the
fundamental concepts appear in similar guise in the different statutes.
These statutory enforcement provisions invest EPA with broad discretion to select
enforcement cases in instances of violations of specific performance standards, permit conditions, or
regulations, and to decide the type of enforcement action to pursue. EPA can consider a variety of
factors in selecting which cases to bring, including geographic distribution, facility size and
organizational sophistication, type of discharge, impact on the environment, and consequences for
public health. Within the last of these factors, EPA can bring what might be regarded as traditional
enforcement actions for violations of standards, permit conditions, or regulations in a manner that
advances environmental justice goals. That is, EPA can give priority to actions that penalize, or halt,
conduct that has a disproportionate impact upon communities of color and low income
communities. Thus, EPA's traditional authorities provide opportunities for protecting public health
and the environment in communities of color and low-income communities.
The National Environmental Policy Act lends additional support for EPA exercising its
discretion to use these enforcement authorities to address environmental justice concerns. As
discussed in Chapter Nine, NEPA creates a broad national charter for protection of the
environment. Among other things, NEPA directs the federal government to use all practical means
to "assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing
surroundings" and to "attain the widest range of beneficial uses of the environment without
degradation, risk to health or safety, or other undeskable or unintended consequences." 42 U.S.C. §
4331 (b). NEPA requires federal agencies, including EPA, to carry out their functions in a manner
that implements the purposes of the Act, and charges the agencies with specific procedures and
considerations. For example, federal agencies are directed to use a "systematic, interdisciplinary
approach which will assure the use of the natural and social sciences and the environmental design
arts" in their decisions. 42 U.S.C. § 102(2)(A). Agencies also must "identify and develop methods
and procedures . . .which will insure that presently unquantified environmental amenities and
values" are considered in making decisions. 42 U.S.C. § 102(2)(B).
These directives to federal agencies apply to EPA as it decides which enforcement cases to
pursue, and what relief to seek in those that it pursues. For example, the NEPA language requiring
agencies to take "presently unquantified environmental amenities and values" into consideration
provides a basis for the agency to fully examine the cumulative impacts of emissions on low-income
communities and communities of color when prioritizing inspection and enforcement decisions.
Similarly, the admonition to employ not only environmental sciences but also the social sciences in
decision-making gives EPA a clear basis to examine the effect of existing emissions on members of
identifiable groups and sub-populations, not just average healthy individuals. Going even further,
EPA could consider the impact of emissions on the continuing integrity and vitality of these very
groups, whose ability to survive as sustainable ethnic or cultural communities may be jeopardized by
discharges that threaten their subsistence or the health of their members to such an extent that
group identity and cohesion is lost. EPA can include all these factors as it decides the most effective
use of its enforcement powers.
28
-------
II.
EXERCISING DISCRETION
Enforcement is a process with several different stages, decision points and tools available to
EPA in addressing environmental justice issues. This Part presents an overview of how EPA can
exercise its enforcement discretion in the various stages of enforcement and then discusses specific
aspects of the process that have particular relevance for promoting environmental justice.
A. Generally
In most cases, the enforcement process begins with the identification of facilities to be subjected
to inspection or other forms of monitoring. This selection can be effective in two ways. First, a
higher frequency of inspections is itself seen by many facilities as undesirable and something to be
avoided, if only because it disrupts normal business activities, and this perception often encourages
greater attention to compliance. In addition, a higher inspection frequency is likely to detect actual
violations and to provide an initial basis for an enforcement response. For both these reasons, EPA
could target selected geographic areas or industrial sectors for inspection based on the agency's
reasonable belief that a high proportion of facilities in that area or sector create or exacerbate health
or environmental impacts for communities near their facilities. This approach can then be refined
to prioritize inspections toward those facilities in the selected area or sector that have the highest
probability of affecting low-income communities or communities of color.
The second phase of the enforcement process is conducting inspections. The manner in which
inspections are conducted, and the identity and affiliation of the person conducting them, also offer
opportunities to attain environmental justice goals. In carrying out targeted inspections, EPA might
consider consulting and coordinating with local officials with ties to the affected communities. In
some instances, local enforcement officials and agencies may have strong ties to the leaders of the
affected community, will have a good sense of a facility's impact upon the community, and can be
valuable allies in an EPA enforcement action. In other instances, local officials may simply be able
to offer important information from official files and inspection records. In either situation,
working with local officials as circumstances allow can enhance the effect, and perception, of EPA
inspections designed to gather information about the source of environmental justice problems.
Next, the selection and inspection of many facilities often yields a list of violators that may
be larger than agency resources can easily address through individual enforcement actions. This
.imbalance between targets and enforcement resources requires EPA or a state regulatory agency to
establish enforcement priorities for case selection, and these priorities can be informed by policies
designed to protect low-income communities and communities of color. For example, if faced with
a choice between bringing an enforcement action against a facility whose wastewater may affect the
water supply or food sources for a community versus bringing an action against a violator that
discharges to a water body without comparable uses, the enforcement agency can give greater
priority to the case with more immediate impacts on health and the environment.
Finally, the conduct and resolution of the enforcement action clearly raises environmental justice
issues. The assessed gravity of the offense, the size of the financial penalty, the possibility of
criminal penalties, and the nature of any additional compensatory or restorative sanctions all are
determined by an analysis that could reflect the impact of the violation on low-income communities
29
-------
and communities of color. Moreover, the process by which penalties and settlements are arrived at
is frequently a subject about which such communities may feel strongly and have valuable
suggestions or contributions to offer.
B.
Case Selection
The most flexible stage in the enforcement process is the selection of cases for which to
bring enforcement actions. While general deterrence presumes that future behavior of many actors
will be guided by an enforcement action against a single violator, it is the conduct of the
enforcement target itself that is most immediately and directly affected. It is the enforcement target
whose behavioral changes are most readily confirmed through continuing inspection. Thus, it is
changes in the behavior of the enforcement target that can have the most direct impact on activities
or conditions that can cause, or exacerbate, environmental inequities
Most environmental laws contain broad public health protection goals that are implemented
through specific standards and norms, as discussed in Chapter Two. Often these standards are
reflected in the terms of a permit or other agency action. As noted above, EPA has considerable
discretion in using its traditional enforcement authorities to ensure compliance with these standards
in communities of color and low-income communities. In addition, other elements of EPA
authority may give the agency additional opportunity to address environmental justice. For example,
EPA could take advantage of the flexibility inherent in such broad statutory constructs as "imminent
and substantial endangerment."
A number of environmental laws contain such a provision. For example Section 303 of the
Clean Air Act (CAA) authorizes EPA to bring suit or issue orders when it receives evidence that one
or more pollution sources are presenting an "imminent and substantial endangerment to public
health or the environment." 42 U.S.C. § 7603. The early legislative history of the CAA suggests that
a primary purpose of the Act was to ensure protection for those whose ability to resist the harmful
effects of ak pollution is already compromised. H. Rep. No. 728,1967 U.S.C.C.A.N. 1938, 1941-43
(1967). In American ~LungAssociation v. EPA, 134 F.3d 388 (D.C. Cir. 1998), the D.C. Circuit
endorsed the view that Congress meant to define "public health" in the CAA broadly, finding that
the National Ambient Ak Quality Standards required by the Act "must protect not only average
healthy individuals but also 'sensitive citizens' — children, for example, or people with asthma,
emphysema or other conditions rendering them particularly vulnerable to ak pollution." 134 F.3rd at
388-389. In light of this emphasis on protecting sensitive populations, the CAA Section 303
requkement for showing the existence of endangerment to public health can encompass risks to
vulnerable subsets of the general population.
Similar statutory language is found in several other statutes. For example, Section 504 of the
Clean Water Act provides that EPA can seek an injunction or pursue other appropriate action when
it receives evidence that "a pollution source or combination of sources is presenting an immediate
and substantial endangerment to the health of persons or to the welfare of persons where such
endangerment is to the livelihood of such persons." 33 U.S.C. § 1364. The Resource Conservation
and Recovery Act similarly authorizes EPA to bring legal action against any person whose handling,
storage, or disposal of hazardous waste presents an "imminent and substantial endangerment to
health or the envkonment," 42 U.S.C. § 6973, and EPA also may take "other actions necessary to
30
-------
protect public health and the environment," 42 U.S.C. § 6973(a). In addition, the Safe Drinking
Water Act provides that whenever EPA receives "information that a contaminant [that] is present in
or is likely to enter a public water system or an underground source of drinking water may present
an imminent and substantial endangerment to the health of persons," the Administrator is
authorized to "take such actions as he may deem necessary to protect the health of such persons,"
including issuing an order or bringing a civil action. 42 U.S.C. § 300i(a). -
EPA can use these various "imminent and substantial endangerment" provisions in a variety
of ways to advance environmental justice objectives. For example, in selecting from a large
inventory of cases where the required showing of harm or danger can easily be made, EPA and
other appropriate regulatory agencies could prioritize their enforcement choices based on those
situations where the brunt of the impacts are being borne by low-income communities or
communities of color.
Beyond the prioritizing of cases against known violators, it is also possible that EPA could
initiate enforcement action based primarily on environmental justice considerations. Low-income
communities and communities of color commonly include diverse segments with heightened risk
factors: Native Americans and others who subsist on fish they catch locally; asthmatics; women at
risk for low birthweight babies; children suffering from elevated blood lead levels; farmworkers
subject to high pesticide levels through occupational exposure; and others. Examination of the risks
presented to one or more of these sensitive groups by the emissions from a facility or from a
contaminant plume might establish the necessary proof for a "substantial endangerment" case that
would not exist if only the risks to an average healthy population were calculated. Targeting
enforcement based on concerns for sensitive populations may not only serve to benefit those
particular communities; it may also more generally enhance EPA's ability to develop sophisticated
evidence and advance the agency's deterrence goals.
Another central issue is the cumulative or synergistic effects of exposure to a number of
emissions from numerous facilities. EPA has authority to consider these cumulative effects in
enforcement. As discussed above, Section 504 of the Clean Water Act authorizes EPA to take
action "upon receipt of evidence that a pollution source or combination of sources is presenting an
imminent and substantial endangerment to public health or welfare." 33 U.S.C. § 1364 (emphasis
added); similarly, CAA Section 303 provides that EPA may bring suit to immediately restrain any
person causing or contributing to pollution that presents an imminent or substantial endangerment. 42
U.S.C. § 7603. This statutory authority to consider combined sources provides EPA with
considerable flexibility in evaluating cases for enforcement action. For example, there may be only
one or two facilities that are out of compliance but whose emissions, when added to those of
complying facilities, may create conditions of endangerment. EPA could place a greater priority on
bringing enforcement actions against the violators than would exist in the absence of cumulative
impacts. EPA also could consider bringing.action against a larger group of dischargers whose
aggregate impact on ambient conditions endangers public health, even though no single facility
exceeds regulatory standards. In such cases, EPA might seek a remedy that imposes requirements
more restrictive than the standards that obtain in the absence of cumulative effects.
Since the proof required in "substantial endangerment" cases is generally much more
difficult to obtain and more susceptible to challenge than the proof needed to demonstrate simple
31
-------
violations of standards, it is likely that EPA will resort to this approach only in unusual
circumstances. These might include instances where a particular population is put at risk despite the
absence of violations of standards at any contributing facilities. This approach might also be
preferable where the relief that EPA could obtain to address the harm might be broader and more
responsive under a "substantial endangerment" standard than for a case based on a violation of a
standard.
C.
Case Resolution
1.
Penalties
EPA has discretion to select what relief it will seek. This includes requiring or prohibiting
specific actions by the entity being sued and seeking administrative, civil or criminal penalties. Here
again, the broad sweep of much of EPA's enabling legislation provides statutory authority that the
agency can use when seeking penalties to address issues of concern to low-income communities and
communities of color. And here again, the relevant provisions vary somewhat from statute to
statute, but provide cross-cutting themes that can be applied in a number of different contexts.
For example, each statute authorizing imposition of penalties also contains provisions that
establish factors or criteria to be used in determining appropriate penalty levels. In a number of
statutes, the penalty provision contains what is sometimes called the "omnibus clause," a clause that
adds a more general and comprehensive basis for penalties in addition to the specific penalty
considerations enumerated. Section 309 (d) of the Clean Water Act requires that civil penalties be
calculated based upon "the seriousness of the violation or violations, the economic benefit (if any)
resulting from the violation, any history of such violations, any good-faith efforts to comply with the
appropriate requirements, the economic impact of the penalty on the violator, and such other matters as
justice may require." 33 U.S.C. § 1319(d) (emphasis added). In almost the same words, the Clean Air
Act omnibus clause authorizes EPA or a court to consider "such other factors as justice may
require." 42 U.S.C. § 7413.
The Toxic Substances Control Act likewise adds consideration of "such other matters as
justice may require" to the extent and gravity of the violation in prescribing penalty calculations. 15
U.S.C. § 2615(a). The Comprehensive Environmental Response, Compensation, and Liability Act
mandates consideration of the nature, circumstances, extent, and gravity of the violation as well as
such other matters as justice may require. 42 U.S.C. § 9609(a). Most other relevant penalty
provisions in EPA's statutes include at least a requirement that the "nature," "extent," or "gravity"
of the violation be considered in computing an appropriate financial sanction. See, e.g., 7 U.S.C. §
1361 (a)(4) (FIFRA); 42 U.S.C. § 6928(a)(3) (RCRA). EPA has developed penalty policies for most
statutes, which provide a matrix and other mechanisms to calculate penalties. See, e.g., RCRA Civil
Penalty Policy (Oct. 1990). Following the statutes, these formulas take into account the gravity and
duration of the violation, the violator's history of noncompliance, good or bad faith, economic
benefit gained by the violation, and ability to pay.
EPA's broad authority to tailor penalties to fit a specific factual situation has several
implications for incorporating environmental justice issues into penalty calculations. It is clear that
the agency in administrative penally actions, and the federal and state courts in formal civil penalty
32
-------
proceedings, have ample authority to define and consider the full cost of environmental violations to
a community in deciding a penalty. For this reason, the "gravity" factor for an unpermitted
wastewater discharge to a stream that does not support any human activities will be less substantial
than the gravity factor for the exact same discharge to a stream that supports subsistence fishing.
Similarly, hazardous waste storage or labeling violations may be subject to a lesser penalty for a
remote facility than for a facility located in an urban area where children playing are more likely to
come into contact with the wastes.
Enhancing an individual penalty based up a fuller appreciation of the gravity of the impacts
will not by itself lessen the consequences of the underlying violations on affected community
residents. But at the very least, a penalty calculation that includes appropriate consideration of the
gravity and severity factors will produce a truer, and therefore faker, sanction for the violations.
Beyond this benefit, imposition of the fuller penalty serves the essential function of providing for
general deterrence across the broader regulated community. Other facilities committing similar
violations - and imposing similar burdens on their surrounding communities - will discern that the
costs of their conduct are greater than they initially thought, and this knowledge alone may impel
them to alter their conduct. If penalties are calculated correctly, the cost of compliance will become
less expensive than the cost of continued noncompliance.
2. Supplemental Environmental Projects
Under the language of EPA's statutes, the agency's civil penalty authority is limited to
imposition of fines on a person or firm that has violated environmental laws or regulations. The
fines collected generally go into the government treasury rather than back into the affected
community. EPA also has broad authority under most of its statutes to compel facilities to take •
specific actions to comply with the law. These two forms of relief may not directly respond to the
needs of low-income communities or communities of color, especially communities that have
suffered from the accumulated impacts of a long-term or serious violation that has degraded the
local environment. However, the vast majority of enforcement actions are resolved through
settlement, which offers EPA greater latitude to fashion remedies. In the settlement context, EPA
has broad discretion to seek actions beyond payment of a penalty or cessation of illegal conduct,
actions that may more directly address the consequences of the original .illegal conduct. The agency
has developed a policy that promotes the incorporation of environmentally beneficial activities into
settlement discussions, and prescribes a method for selecting and using these so-called Supplemental
Environmental Projects (SEPs). See U.S. Environmental Protection Agency, Supplemental
Environmental Projects Policy (May 1, 1998).
EPA has recognized the potential that the SEP program offers for helping to attain a variety
of environmental justice goals. The agency's SEP policy expressly provides that "emphasizing
SEPs in communities where environmental justice concerns are present helps ensure that persons
who spend significant portions of their time in areas, or who depend on food and water sources
located near where the violations occur, would be protected." Id. The policy also notes that
promoting environmental justice is an overarching agency goal, not a specific kind of SEP.
According to the policy, EPA encourages SEPs in communities where environmental justice issues
have been raised in the course of an enforcement action.
33
-------
Typically, for a proposed project to qualify as a SEP and offset some portion of the
traditional penalty amount, it must be considered "environmentally beneficial." EPA defines
environmentally beneficial to mean a project that improves, protects, or reduces risks to public
health or to the environment at krge. Id. EPA also provides a list of seven specific categories of
projects that qualify as environmentally beneficial, two of which are of particular interest from an
environmental justice perspective. The first category is "public health projects," described as
projects that provide diagnostic, preventative, and/or remedial components of human health care
that are related to the actual or potential damage to human health caused by the violation. The
EPA policy notes that public health SEPs are only acceptable where the primary benefit is to the
population harmed or put at risk by the violations at issue. The second relevant category of SEPs is
"environmental restoration and protection efforts." The EPA policy explains that certain
improvements to man-made environments may qualify as beneficial projects; these might include
the removal or mitigation of dangerous materials, such as asbestos or lead paint in structures.
The flexibility inherent in the SEP program creates enormous opportunity for EPA
enforcement actions to yield settlements that directly address environmental justice concerns in the
affected community. For example, epidemiological studies could be conducted to evaluate whether
populations suspected of being at risk actually exhibit higher incidences of illness. Individual
screening and medical examinations for at-risk individuals could be mandated, along with follow-up
monitoring and appropriate care. Environmental SEP projects could remove or mitigate
contamination sources that would not otherwise be remedied in the near future. The agency could
continue to make a concerted effort to include these and other kinds of SEPs in settling actions
where environmental justice issues are present.
EPA also could use its authority to make the SEP program even more responsive to
environmental justice issues. For one thing, it is not clear that there is an effective mechanism by
which firms entering into settlement discussions can learn about possible SEPs, or by which affected
low-income communities and communities of color can learn of ongoing settlement negotiations. A
more recent EPA draft guidance document offers several suggestions that could be adopted to
address these issues, for example through the concept of SEP "banks." Draft EPA Guidance for
Community Involvement in Supplemental Environmental Projects, 65 Fed. Reg. 40639 (June 30,
2000). These banks would be local repositories of ideas, for environmentally beneficial projects,
identified and considered by EPA in anticipation of future settlement discussions. The availability
of projects in a SEP bank might help influence a defendant to consider a SEP as part of settlement
discussions. Potential projects might be even more attractive to settling defendants if it were clear
that they had already been evaluated, at least preliminarily. To test these concepts, the agency might
ask one or more EPA Regions to develop pilot SEP banks consisting of projects designed to redress
environmental injuries in low-income communities or communities of color. In developing these
pilot banks, EPA could employ focused outreach techniques to solicit ideas for potential future
projects directly from these communities. The experience of these Regions then could be used to
evaluate and refine the SEP bank idea for general application.
EPA also could revise its existing policy to make more environmental justice projects eligible
for consideration as SEPs and to make eligible projects more attractive for settling parties. For
example, the policy for public health SEPs presently requires a clear nexus between the showing of
harm from a violation and the population to be aided by the beneficial project. For communities
34
-------
facing a variety of environmental risks, identifying the harm from any individual violation may be
virtually impossible, which could eliminate consideration of a public health SEP that might
otherwise be funded. EPA could modify this policy to allow public health projects for low-income
communities and communities of color to be considered as SEPS by a settling polluter even where
the particular violation did not specifically contribute to general community conditions; under this
revision, it would suffice-to demonstrate that there were violations and that a community in the
same area is under general environmental stress and needs'preventive or responsive health care.
Finally, EPA also could revise its guidelines to allow SEPs that advance environmental justice
objectives to offset a greater portion of the underlying penalty amount than other environmentally
beneficial projects, which would have the effect of encouraging more environmental justice projects.
Since the existing SEP policy is a legitimate exercise of EPA's enforcement discretion, these
revisions also should be within the agency's authority.
3. Criminal Sanctions
Virtually every major environmental statute also provides criminal penalties for particularly
egregious violations of its substantive provisions and standards. The initiation of a criminal action is
perhaps the single most serious way in which government confronts one of its citizens. Thus, the
criminal charging power is wielded with great care and appropriate caution for the civil and
constitutional rights of those who might eventually be accused. In environmental cases, criminal
charges generally are only brought in instances of extreme damage to the environment or public
health (or serious threats of such damage), and in cases of intentional and knowing violation of well-
established standards. In deciding whether to bring criminal charges, a prosecutor's examination of
the harm caused or threatened by a particular incident can include evaluation of the harm inflicted
upon or threatened to a community that is uniquely exposed due to its location, or its
socioeconomic or racial composition. Recognizing these considerations is consistent with the
criminal provisions of EPA's statutes and the discretion typically afforded to prosecutorial decisions.
In addition to the charging of criminal cases, environmental justice issues also can influence
sentencing in criminal cases following a conviction. Most jurisdictions, including the federal
government, have sentencing guidelines that provide a framework for imposition of a sentence
within the bounds authorized by the criminal laws. Factual evaluation of the particular harm caused
or threatened is a fundamental component of these guidelines. Thus, environmental violations
whose harms are demonstrated to fall unequally on one particular group or class or community
could be the basis for an appropriate sanction under the criminal laws; indeed, harm to a more
sensitive or vulnerable group may be an enhancing factor in calculation of punishment. Federal and
state prosecutors can use the sentencing guidelines as a basis for linking punishment to actual harms
that are inflicted upon low-income communities and communities of color.
III. COMMUNITY INVOLVEMENT IN ENFORCEMENT
A. Community Involvement Throughout the Enforcement Process
Another concern for low-income communities and communities of color is how regulatory
agencies can ensure meaningful local involvement in key phases of the enforcement process. The
35
-------
National Environmental Justice Advisory Council held a Roundtable that examined ways to enhance
environmental enforcement efforts, and highlighted a number of continuing concerns. These
included communities' frustration over their inability to review inspection reports and results from
regulators; an accompanying desire to obtain raw analytical data as well as reports that summarize
inspection and analytical information; and a feeling that communities are not adequately notified
when enforcement actions are contemplated or commenced, and are not being afforded opportunity
to participate in the decision-making process to resolve actions once they are started. NATIONAL
ENVIRONMENTAL JUSTICE ADVISORY COUNCIL, REPORT OF THE ENVIRONMENTAL JUSTICE
ENFORCEMENT AND COMPLIANCE ASSISTANCE ROUNDTABLE (EPA pub., 1996).
These concerns present challenges for EPA and other environmental regulators. The easiest
to address appears to be the issue of access to inspection reports and results. These documents
generally are regarded as public records in many jurisdictions, and most EPA records are subject to
disclosure under the federal Freedom of Information Act and EPA's information regulations. 5
U.S.C. § 552; see 42 C.F.R. Part 2. Nonetheless, the procedures to gain access to these public
records are frequently cumbersome and lengthy. Delay in obtaining key documents may hinder the
ability of a group or community to participate effectively at a critical stage of the enforcement
process.
EPA may be able to develop expedited procedures for disclosing public information where
environmental justice issues are raised. The kinds of analysis and evidence gathering suggested
earlier — establishing the true gravity or severity of a violation on susceptible populations or
confirming immediate and substantial endangerment of low-income communities or communities of
color — would allow enforcement officials to recognize those cases where environmental justice
interests may be involved. Except where disclosure is prohibited by law or regulation, EPA should
have substantial latitude in identifying mechanisms to disseminate public information that are most
responsive to local information requirements in a given case. For example, EPA could create and
maintain a "shadow" case file at a local repository that is updated on a real-time basis with the
publicly available information that is placed in the official file.
Keeping communities current about the actual progress of enforcement actions and of
potential settlement discussions poses a more difficult challenge. Certain envkonmental statutes
require a thirty-day period for public notice and comment prior to finalizing settlements. E.g., 42
U.S.C. § 7413 (g) (CAA); 42 U.S.C. § 9622(d)(2) (CERCLA). The Department of Justice also has a
policy to provide public notice and comment for consent decrees with injunctive aspects for all
envkonmental statutes. '28 C.F.R. § 50.7.
However, such notice-and-comment opportunities are of limited utility in protecting
community interests; by thek terms, they only apply to actions resolved through a formal consent
decree in court. Many more cases are settled by EPA through administrative action that does not
result in a consent decree and does not trigger these provisions, and the proportion of state
enforcement actions resolved outside of court is even greater. Moreover, the thkty-day period is in
practice a very brief time for communities to obtain, analyze, and comment on complex settlements.
Most significantly, a notice-and-comment process that occurs immediately prior to finalization of a
settlement runs into the possibility that the government and violator will have akeady reached
agreement on all important issues before disclosing the proposed settlement to the public. This
36
-------
means that the community is largely precluded from influencing the overall shape and direction of
the settlement discussion.
EPA's authority to tailor this process for low-income communities and communities of
color comes as much from what the statutes do not prohibit as from what they expressly require.
For instance, the public notice requirements described above stipulate a thirty-day minimum
comment period, but do not prevent EPA from providing a longer period where an interested
community has been identified. Further, the statutes do not prevent EPA from arranging a
settlement strategy discussion with an affected community priorto the beginning of negotiations with
the violator. At such a discussion, the community could identify its key concerns and expectations,
and EPA could identify the general areas the settlement might address. EPA then could consider
giving some sense of the progress of the negotiations to the community at a point before complete
agreement is reached. Concerns about confidentiality could be minimized by the provision of
limited, and carefully worded, information; the agency also could identify the importance of
community involvement to the violator early in negotiations and require its consent to a limited
disclosure of information. Finally, EPA could preview the expected final settlement proposal to the
community before committing to it and submitting it for publication.
B.
Citizen Suits
Although enforcement traditionally is perceived as a government tool, Congress and most
state legislatures have long recognized that the scope of our environmental regulatory system
exceeds the governmental resources available to implement it. As a result, many environmental
statutes contain provisions that allow private citizens to act, in effect, as attorneys general in bringing
actions against violations of the environmental laws. E.g., 42 U.S.C. § 9659 (CERCLA) 33 U.S.C. §
1364 (CWA); 15 U.S.C. § 2619 (TSCA). In addition, provisions such as RCRA Section 3008(d)
allow the EPA Administrator to authorize "any person" to conduct monitoring, testing, analysis and
reporting of any facility at which the storage or release of hazardous wastes presents a substantial
hazard to human health or the environment and where the facility owner or operator fails to
perform these actions satisfactorily. 42 U.S.C. § 6934(d). Such monitoring efforts could include
appropriately qualified representatives of the affected community, and could yield information that
becomes the basis for agency or citizen enforcement.
Citizen suits can be an effective vehicle for community participation, as well as for
developing substantive legal theories of cumulative harm and protection of sensitive populations
that are important for addressing environmental justice issues. In addition, community control of
the legal action helps ensure that enforcement decisions, as well as settlement decisions, will be
reviewed fully by those presumed to be best able to reflect the community's goals and expectations.
On the other hand, technical requirements and the need for expert witnesses may prove difficult
challenges, and legal fees for long and hard-fought cases can be steep. EPA could support citizen
suits by developing a program to provide assistance for those suits that are designed to advance
issues of concern to low-income communities and communities of color. For example, EPA .can
support access to records and documents, access to its inspectors and experts and other litigation
support, or even direct financial support of citizen plaintiffs. In appropriate cases, the agency can
provide significant direct assistance by choosing to intervene in citizen suits using the authority
provided in its statutes.
37
-------
38
-------
CHAPTER 6
INFORMATION GATHERING
The federal environmental statutes authorize EPA to undertake a wide array of information
gathering activities. The scientific and technical nature of environmental regulation has led
Congress to provide the agency with substantial research authority to inform its decision-making,
both for broad pollution control activities and for specific health and environmental issues. The
agency's authority to set standards and to issue permits with site-specific discharge limitations
requires monitoring of actual emissions and discharges by regulated facilities, EPA, and the
surrounding community to ensure compliance and to track the status of human health and the
environment. EPA's ability to conduct enforcement and to continually evaluate and revise its
programs necessitates the reporting of monitoring data and other information about health and
environmental impacts of regulated entities. Statutory authorities and opportunities for making this
information available to the public are discussed in Chapter 8.
Reliable and accurate information about the impact of regulated activities oh communities of
color and low-income communities is critical for ensuring that EPA decisions protect the health and
environment of those communities. Environmental statutes provide broad authority for tailoring
EPA's information gathering activities to promote environmental justice. First, EPA research can
more clearly define the risks faced by communities of color and low-income communities and can
include those communities in carrying out the research. Second, the agency can establish
monitoring requirements for facilities in impacted communities, strengthen its own monitoring and
inspection, and build the capacity of community groups to monitor the compliance of facilities
within their communities. Finally, reporting requirements can be expanded to include information
relevant to environmental justice issues, and information derived through these reporting
requirements made readily available to the public.
This report analyzes statutory authorities that provide opportunities to address
environmental justice issues in EPA's information gathering activities. A detailed discussion of
these provisions and their potential environmental justice implications is found in the individual
chapters of Section B. Some cross-cutting themes, common language, and highlights of these
chapters are discussed below, under three broad headings: research, monitoring, and reporting.
I.
RESEARCH
The need for research into health and environmental issues of concern to people of color
and low-income communities has long been a focus of the national dialogue on environmental
justice. Discussion about research to promote environmental justice issues has centered on both the
substance of the research and the manner of conducting the research. It is widely believed that a
greater understanding is needed of how to gauge the health effects of pollution on overburdened
communities: cumulative and synergistic effects of pollutants, as well their effects on people who
may be particularly sensitive because of underlying medical conditions such as asthma, or socio-
39
-------
economic conditions such as limited access to health care, poor nutrition, etc. In addition, research
into medical conditions that are more prevalent in communities of color, such as asthma or lead
poisoning, can also further efforts to ensure environmental protection for those communities. The
process for conducting research from the development of research projects to the research itself and
the evaluation of the results has also been the subject of much discussion. Communities of color
and low-income communities, which historically have had limited input into the regulatory decision-
making process, have similarly been excluded from decisions about scientific and technical research
priorities. See generally, NATIONAL ENVIRONMENTAL JUSTICE ADVISORY COUNCIL,
ENVIRONMENTAL JUSTICE AND COMMUNITY-BASED HEALTH MODEL DISCUSSION (Meeting
Report, May 2000).
Improving scientific knowledge of how regulated activities affect communities of color and
low-income communities, and of how to make such determinations in the regulatory decision-
making context, is an important short- and long-term goal of efforts to promote envkonmental
justice. The federal envkonmental laws administered by EPA provide the agency with authority for
its considerable work in conducting and supporting scientific research. Those laws also provide the
agency with ample authority to pursue envkonmental justice goals in setting research agendas and
carrying out research.
A. Setting the Research Agenda
Most statutes grant EPA broad discretion to conduct research necessary to meet the goals of
the statute. EPA could use this discretionary authority to focus its research on envkonmental justice
issues. Section 10 of the Toxic Substances Control Act (TSCA), which requkes EPA to "conduct
such research, development and monitoring as is necessary to carry out the purposes of this chapter" typifies
these general grants of research authority. 15 U.S.C. § 2609 (emphasis added). See also 1 U.S.C. §
136r(a) (requiring EPA to undertake research "as may be necessary to carry out the purposes of [the
Federal Insecticide, Fungicide, and Rodenticide Act]"). The Clean Water Act requkes EPA to
"conduct and promote the coordination and acceleration of research . . . relating to the causes,
effects, extent, prevention, reduction and elimination of water pollution." 33 U.S.C. § 1254(a)(2).
See also 42 U.S.C. § 7403 (a) (1) (Clean Ak Act provision requiring EPA to "conduct and promote the
coordination and acceleration of research . . . relating to the causes, effects (including health and
welfare effects), extent, prevention and control of ak pollution"). Similarly, the Safe Drinking Water
Act (SDWA) broadly authorizes EPA to conduct research "relating to the causes, diagnoses,
treatment, control, and prevention of physical and mental diseases and other impakments of man
resulting dkectly or indirectly from contaminants in the water, or to the provision of a dependably
safe supply of drinking water." 42 U.S.C. § 300J-1 (a).
In addition to providing broad research authority, several statutes expressly authorize EPA
to research specific issues relevant to envkonmental justice. For example, the Clean Water Act
contains a number of provisions that authorize EPA to research health and envkonmental impacts
on farm workers and agricultural communities, in particular the effects of pesticides and agricultural
pollution. 33 U.S.C. § 1254(1) (requiring research on the health and welfare effects of pesticides); 33
U.S.C. § 1254(p) (requiring research on agricultural pollution, particularly on methods of
"preventing, reducing and eliminating pollution from agriculture, including the legal, economic and other .
implications of the use of such methods"} (emphasis added). In addition, the Clean Ak Act (CAA)
40
-------
authorizes EPA to research ak pollution issues particularly relevant to communities of color and
low-income communities, such as risks from combinations of ak pollutants, 42 U.S.C. § 7403(d)(2),
and urban ak toxics, 42 U.S.C. § 7412(p).
EPA also has authority to requke regulated entities to undertake research. Perhaps the most
prominent example is the chemical testing program under the Toxic Substances Control Act. 15
U.S.C. § 2603. EPA can take envkonmental justice concerns into account in determining which
existing chemicals will be subject to testing by chemical manufacturers and processors. In addition,
TSCA Section 4(b)(2), which sets out the types of effects for which EPA may prescribe testing
standards, specifically includes "cumulative or synergistic effects, and any other effect which may
present an unreasonable risk of injury to health or the environment," giving EPA broad authority to
research the types of health effects of concern to communities of color and low-income
communities. 15 U.S.C. § 2603 (b) (2).
The Clean Ak Act also authorizes EPA to impose research requkements upon regulated
entities. For example, CAA Section 211(b)(2) authorizes EPA to requke the manufacturer of any
fuel or fuel additive to research the potential health effects of the substance and provide ". . . such
other information as is reasonable and necessary to determine . . . the extent to which . . . emissions
[resulting from the use of the fuel additive] affect public health or welfare." 42 U.S.C. § 7545(b)(2).
This provides broad authority for EPA to research the health effects of fuel additives on
communities of color and low-income communities. In addition, the Comprehensive
Envkonmental Response, Compensation, and Liability Act (CERCLA) permits EPA to obtain
payment for the costs of certain research programs from regulated entities. 42 U.S.C. §
9604(i)(5)(D).
B. Community Involvement in Research
Federal envkonmental laws support EPA efforts to establish community participation in
agency research activities. A variety of provisions create mechanisms to facilitate this involvement.
For example, numerous statutes authorize EPA to provide funding to private organizations and
individuals. These provisions are described in the following chapter. A number of envkonmental
laws establish formal advisory bodies to inform EPA's research activities, and these can include
individuals with expertise in envkonmental justice issues. Chapter 8 reviews these provisions in
more detail. In addition, the Toxic Substances Control Act requkes public input in the issuance of
test rules. 15 U.S.C. § 2603 (b) (5). Regulations issued under the law provide that prior to making a
determination on the need for testing of a chemical, EPA will hold a public focus meeting to discuss
comments on testing recommendations of an inter-agency testing committee and that EPA will hold
a public meeting to announce preliminary testing determinations. 40 C.F.R. § 790.22(a).
EPA can also promote envkonmental justice by providing communities with research results
and information necessary to facilitate community involvement and participation. Certain statutes
explicitly authorize the sharing of research results with the public. For example, CERCLA Section
311(b)(8) requkes EPA to maintain a publicly-available library of information on treatment
technology. 42 U.S.C. § 9660(b)(8). CAA Section 103(b) authorizes the Administrator to collect
and make available research results, 42 U.S.C. § 7403 (b), and Section 112(1) (3) requkes EPA to
maintain a publicly-available ak toxics clearinghouse containing research on preventing and
41
-------
controlling health risks. 42 U.S.C. § 7412® (3). In addition, Section 1442 (b)(l) of the Safe Drinking
Water Act (SDWA) authorizes EPA to collect and make available information about the research,
demonstrations, and recommendations into providing a dependably safe supply of drinking water.
42 U.S.C. §300j-l(b)(l).
II. MONITORING
Monitoring is a central component of EPA's information gathering activities. Monitoring of
facility emissions and discharges is an important tool for ensuring compliance with permits and
other pollution control requirements. Monitoring of pollutant levels also provides data needed to
guide the development of agency standards and programs. National discussions on environmental
justice issues have emphasized the need for more extensive monitoring in communities of color and
low-income communities, both to improve understanding of the environmental and health
conditions in the communities, and to increase agency and citizen capacity to identify facilities that
are not in compliance with existing requirements. EPA has considerable statutory authority to tailor
its monitoring activities to achieve these goals and to assist communities in conducting monitoring
on their own.
A. Monitoring by Regulated Entities
EPA has extensive statutory authority to require monitoring and record-keeping by
regulated facilities. EPA's discretion may be couched in broad language, enabling the agency to
require monitoring "as reasonably required" to carry out the purposes of the particular statute. For
example, under Section 308 of the Clean Water Act, the Administrator may, "[wjhenever required to
carry out the objective of this chapter" require the owner or operator of any point source to keep records;
make reports; install, use and maintain monitoring equipment or methods; sample effluents; and
provide any other such information "as he may reasonably require" 33 U.S.C. § 1318 (emphasis added);
see also 42 U.S.C. § 7414(a)(l) (broad CAA authority to require monitoring, record-keeping and
reporting); 42 U.S.C. § 7414(a)(3) (broad CAA authority to require enhanced monitoring and
compliance certification submission); 42 U.S.C. § 9603(d) (broad CERCLA authority to require
record-keeping); 42 U.S.C. §§ 6992, 6923, 6924 (broad RCRA authority to require record-keeping);
and 7 U.S.C. § 136f (broad FIFRA authority to require record-keeping).
Certain statutes provide EPA with authority to require monitoring in specific circumstances,
authority which EPA could use to address environmental justice concerns. For example, under
RCRA Section 3013(a), EPA may require the owner or operator of a facility to conduct further
monitoring upon a finding by EPA that the presence or release of waste from the facility presents a
substantial hazard. 42 U.S.C. § 6932. See also 1 U.S.C. § 1361-1 (a) (1) (FIFRA requirement that
Secretary of Agriculture, in consultation with EPA, require pesticide applicators to maintain detailed
records); 42 U.S.C. § 7429 (CAA provision requiring EPA to promulgate rules requiring monitoring
and reporting by solid waste incineration units).
42
-------
B. Monitoring by EPA
- EPA's authority to require monitoring and record-keeping by regulated entities is often
coupled with EPA's authority to conduct its own monitoring and sampling as necessary. For
example, the Clean Water Act grants EPA the right of entry to access records, sample effluents, and
inspect monitoring equipment. 33 U.S.C. § 1318(a); see also 1 U.S.C. § 136r(a) (authorizing EPA to
conduct monitoring activities "as may be necessary" for the implementation of FIFRA); 42 U.S.C. §
6927(a) (providing that RCRA facilities must allow entry, inspection, and sampling by an agency
representative); 42 U.S.C. § 9604(b) (authorizing EPA under CERCLA to undertake investigations,
monitoring, surveys, testing and other information as deemed necessary and appropriate to identify
the release, source and nature of the hazardous substance and the extent of the danger). EPA can
promote environmental justice by using these authorities to target its monitoring and sampling
activities in affected communities.
C. Community Involvement in Monitoring
Some environmental laws contain provisions that could be invoked to support EPA's
authority" to enhance the community's capacity to monitor the compliance of the facilities within the
community. As discussed in Chapter 3, EPA can in many cases include conditions in permits that
enhance citizen monitoring capacity. In addition, some statutes may authorize EPA to designate
community residents as "authorized representatives" for conducting monitoring and inspection
activities. See 33 U.S.C.§ 1318(b) (CWA); 42 U.S.C. § 6934(d) (RCRA); see also, Richard Lazarus &
Stephanie Tai, Integrating Environmental Justice into EPA Permitting Authority, 26 ECOLOGY. L.Q. 617,
641 (1999) [hereinafter: "Lazarus & Tai"].
In addition, because some communities of color and low-income communities lack the
resources to engage in effective oversight, EPA can build community monitoring and enforcement
capacity by providing the public with as much of the monitoring data and records as possible.
Certain statutes designate material as publicly available absent any strong countervailing interest.
For example, under RCRA, all reports or information obtained through EPA's Section 3007(a)
monitoring and inspection powers must be available to the public, unless there is a showing of
business confidentiality. 42 U.S.C. § 6927(b). Similarly, under the Clean Air Act, monitoring
information must be publicly available, except where the material constitutes a trade secret. 42
U.S.C. § 7414(c). The Safe Drinking Water Act requires EPA to prepare and make available to the
public an annual report summarizing and evaluating the reports submitted by the states on violations
of national primary drinking water regulations, as well as notices of violations submitted by public
water systems serving Tribes. 42 U.S.C. § 300g-3(c)(3)(B). EPA could use its authority to ensure
that these materials are not just formally "available" but in fact meaningfully available — easily
accessible, understandable by a layperson, and presented in multiple languages where necessary. See
Lazarus & Tai at 645.
III. REPORTING
Federal environmental statutes typically require reporting of a wide array of information.
EPA.can use its authority to implement these reporting requirements to promote environmental
43
-------
justice. First, EPA plays a significant role in developing the nature and scope of these reporting
requirements, and can use this authority to expand their breadth and coverage to include
information relevant to environmental justice. Second, to the extent that disclosure is authorized
under the statutes, EPA can further environmental justice by making information from the reports
widely available and easily understandable to the public. This information will enable affected
communities to better safeguard their health and environment.
Reporting is often connected to monitoring, with statutes requiring facilities to provide
reports to EPA on the data monitored. Because these two functions are so integrated in most
statutes, these types of reporting requirements are discussed together with the monitoring
requirements in the section above. This section covers other reporting provisions that authorize
EPA to collect and to make readily available to communities information on toxic chemicals
emissions and health effects.
Facility reporting is at the core of the Emergency Planning and Community Right-to-Know
Act (EPCRA). One of EPCRA's central provisions is the requirement that facilities report the
annual amount of toxic chemicals released into the environment to both EPA and certain
designated state officials. 42 U.S.C. § 11023. EPA has substantial authority to shape the reporting
requirement under this program to advance environmental justice. Under Section 313(b), EPA can
add or delete Standard Industrial Classification codes, which determine in part the facilities that
must file reports. Moreover, EPA can apply the toxic chemical release reporting requirements to
any particular facility that uses a covered toxic chemical, when it finds that it is warranted based on
"the toxicity of the toxic chemical, proximity to other facilities that release the toxic chemical or to
population centers, the history of releases of such chemical at such facility or such other factors as EPA
deems appropriate." 42 U.S.C. § 11023(b)(2) (emphasis added). In addition, EPA has authority to
(1) increase the frequency of reporting; (2) add or delete chemicals from the list of covered toxic
chemicals; and (3) modify threshold amounts for the purposes of reporting toxic chemicals. All of
these authorities could be used to create more expansive reporting requirements for chemicals and
facilities disproportionately affecting some communities. See 42 U.S.C. § 11023(i),(d),(f). EPA
makes toxic chemical release reporting information available to the public in a variety of ways, and
can continue to assist communities in obtaining and using the data.
TSCA provides EPA with broad authority to require reporting of information about the
effects of chemicals on communities of color and low-income communities. TSCA Section 8(a)
authorizes the agency to promulgate rules under which chemical manufacturers and producers "shall
maintain such records, and shall submit to the Administrator such reports, as the Administrator shall
reasonably require" 15 U.S.C. § 2607(a) (emphasis added). TSCA Section 8(c) provides EPA with the
authority to promulgate rules requiring chemical manufacturers to maintain records of any
"significant adverse impacts to health or the environment alleged to have been caused by the
substance." 15 U.S.C. § 2607(c) (emphasis added). In addition, under Section 8(c), chemical
manufacturers, processors, and distributors are required to inform EPA if they obtain information
that EPA does not have indicating a substantial risk of injury from the substance.
FIFRA also contains broad reporting provisions which could be utilized to promote
environmental justice goals. FIFRA Section 6(a)(2) provides that if "after the registration of a
pesticide, the registrant has additional factual information regarding unreasonable adverse effects on
44
-------
the environment of the pesticide, the registrant must submit such information to the
Administrator." 7 U.S.C. § 136d(a)(2). In addition, the Administrator requires registrants to submit
information other than that explicitly set forth in the regulations "if the registrant knows, or
reasonably should know, that if the information should prove to be correct, EPA might regard the
information alone or in conjunction with other information about the pesticide as raising concerns."
40 C.F.R. § 159.195.
Other statutes require EPA to make regular reports to Congress on the status of the agency's
research and regulatory efforts. For example, Section 301 (h) of CERCLA requires EPA to submit
to Congress an annual report on progress achieved in implementing the statute during the preceding
year. 42 U.S.C. § 9651 (h). Likewise, CERCLA Section 311 requires the agency to submit an annual
progress report on the research, development, and demonstration programs authorized under that
section. 42 U.S.C. § 9660(e). See also, 33 U.S.C. § 1315(b)(l)(D)(iii) (CWA requirement that EPA
transmit to Congress an analysis of state biennial water quality reports, along with the reports
themselves).
Finally, EPA can promote environmental justice by making information derived through
statutory reporting requirements available and accessible to the public, to the extent permitted by law.
This information can be used by community groups to assess risks, promote public participation in
environmental decision-making, and to support enforcement actions where necessary. As discussed in
Chapter 8, the public can obtain much of this information through the Freedom of Information Act,
5 U.S.C. §552, and many statutes authorize or requke EPA to make specific types of information
publicly available.
45
-------
46
-------
CHAPTER 7
FINANCIAL ASSISTANCE
Each year, EPA awards hundreds of millions of dollars in grants, contracts, and cooperative
agreements. While state, tribal, and local governments account for most of the agency's assistance
dollars, a wide range of non-governmental organizations receives significant funding to carry out
activities to advance federal environmental protection goals. EPA has an important opportunity to
further environmental justice when deciding who are the recipients of its funds, what are the issues
addressed through funded activities, and how the benefits of funded activities reach affected
communities.
Financial assistance can provide a mechanism for enhancing community involvement in
EPA programs and decisions. EPA can actively seek to include in its financial assistance programs
those institutions and communities that historically have been excluded from participation in
governmental decisions, and those that are working directly on environmental justice issues. The
agency can take steps to make low-income communities and communities of color more aware of
these programs and to provide help in applying for assistance, where necessary.
Where EPA is in a position of selecting among various projects to fund, the agency can
choose to make environmental justice issues a priority in the selection process. In appropriate
circumstances, EPA also can further environmental justice goals by establishing conditions for the
receipt of financial assistance — for example, by requiring that environmental justice issues be
addressed in particular projects and programs or by ensuring that the activities and information
produced by federally funded projects and programs are accessible to people of color and low-
income communities. For example, EPA has taken steps to address the issue of accessibility to
those who speak languages other than English, through implementation of Executive Order 13166,
which, among other things, requires federal agencies to ensure that recipients of financial assistance
provide meaningful access to those with limited English proficiency. Executive Order 13166,
Improving Access to Services for Persons with Limited English Proficiency (August 11, 2000).
Moreover, federal financial assistance is the mechanism that triggers the requirements of
federal civil rights legislation. Tide VI of the Civil Rights Act of 1964 requires EPA to ensure that
financial assistance recipients serve and protect people equally without regard to race, color, or
national origin. As noted in the Introduction, a full discussion of EPA's authority under Tide VI is
outside the scope of this report; nevertheless, the statute provides an additional source of authority
for EPA to ensure that the programs it funds address relevant environmental justice issues.
EPA's general grant-making regulations provide the agency with recourse against
government agency recipients of federal funds who fail to comply with the terms of the awards. See
40 C.F.R. Part 31. Among the actions available to EPA are withholding payments, disallowing
costs, suspending or terminating awards, and withholding future awards. 40 C.F.R. § 31.43. EPA
regulations authorize similar sanctions against non-governmental recipients of federal funds. 40
C.F.R. § 30.62. In addition, EPA regulations provide for debarment and suspension of
47
-------
governmental or non-governmental recipients of federal funds. See 40 C.F.R. Part 32. Thus,
independent of any sanctions authorized under individual environmental statues, the enforcement
tools provided under EPA regulations can help the agency ensure compliance with terms or
conditions relating to environmental justice that are included in its financial assistance awards.
This discussion focuses on statutory authority to provide financial assistance to states and
Tribes for delegated programs, as well as financial assistance for research, community participation,
and certain local government emergency projects. EPA can use its authority to provide financial
assistance for these and other activities as a powerful tool in advancing the goals of environmental
justice.
I. FINANCIAL ASSISTANCE TO STATES AND TRIBES FOR
DELEGATED PROGRAMS
EPA authorizes states and Tribes to implement programs under a number of federal
environmental laws. Along with this delegation of authority, EPA typically makes grants or other
forms of payment to carry out the programs. As discussed in Chapter 4, EPA has authority to take
environmental justice issues into account when making the initial determination whether to
authorize state or tribal programs. EPA also has authority to impose conditions on the funding it
provides to carry out those programs. In Shanty Town Associates iJd. Partnership v. EPA, the Fourth
Circuit Court of Appeals found that EPA had authority under the Clean Water Act (CWA) to place
conditions on a grant for construction of a municipal sewage collection system, where the
conditions related to the stated purpose of the grant program. 843 F. 2d 782, 792 (1988). The
purpose of the CWA grant program at issue in Shanty Town is to encourage the construction of
treatment facilities that will carry out the goals of the Act, namely to protect water quality from
point and nonpoint sources of pollution. Id; see generally Memorandum from Howard F. Corcoran,
U.S. EPA Office of General Counsel, Environmental Justice Law Survey (Feb. 25, 1994).
EPA similarly can seek to advance the broad environmental and public health protection
goals of a number of state and tribal grant programs by establishing grant conditions aimed at
ensuring that delegated programs will adequately serve and protect communities of color and low-
income communities. For example, Section 1452 of the Safe Drinking Water Act (SDWA) directs
EPA to offer to enter into agreements with states to provide grants, including letters of credit, to the
states to capitalize revolving loan funds to further the health protection objectives of the Act. 42
U.S.C. § 300j-12(a)(l)(A). Public water systems are allowed to use the assistance only for types of
expenditures that EPA has determined through guidance will facilitate compliance with applicable
national primary drinking water regulations or otherwise significantly further the health protection
objectives of the Act. 42 U.S.C. § 300j-12(a)(2). This provision authorizes EPA to exercise
substantial discretion in establishing the rules and guidelines states must follow in their loan
programs using EPA grants, which EPA could use to promote environmental justice in a variety of
ways. See also 33 U.S.C. § 1256(a), (b) (Clean Water Act provision allowing EPA to make grants to
the states "to assist them in administering programs for the prevention, reduction, and elimination
of pollution"); 42 U.S.C. § 7405 (a) (Clean Air Act provision authorizing EPA to make grants to
state air pollution control agencies to "implement programs for the prevention and control of ak
pollution or implementation of [National Ambient Air Quality Standards]").
48
-------
A number of environmental statutes provide EPA with authority to establish priorities
relating to environmental justice in awarding state program funding. Some statutes provide very
broad discretion in this regard. Section 3011 of the Resource Conservation and Recovery Act
(RCRA), which authorizes annual grants to states to help cover the costs of program
implementation, establishes the factors for EPA to consider when allocating funds among states.
These factors include the extent to which hazardous waste is managed within the state, the extent of
human and environmental exposure in the state, and "such other factors as the Administrator deems
appropriate." 42 U.S.C. § 6931. Thus, EPA could give priority in allocating funds to states that
address key environmental justice issues and concerns. The Clean Water Act als'o gives EPA wide
lattitude in addressing environmental justice issues when making grants for nonpoint source
management programs, stating generally that EPA may give "priority to particularly serious
nonpoint source pollution problems." 33 U.S.C. § 1329(h)(5)(A).
The Toxic Substances Control Act (TSCA) is unusual in establishing directly a priority for
activities benefitting low-income communities in the award of financial assistance to states. TSCA
Subchapter III, which addresses radon exclusively, requires that state radon programs funded under
the Act "make every effort... .to give a preference to low income persons" in activities covered by
the grant, including the purchase of radon measurement devices and the payment of costs of radon
mitigation demonstration projects. 15 U.S.C. § 2666(c),(i). This provides EPA.with a-considerable
opportunity to ensure that federal funding to reduce risks from a known carcinogen reach those
least able to afford to take protective measures on their own.
Other statutes specifically authorize EPA to condition state and tribal program funds on the
inclusion of certain program elements related to environmental justice concerns. For example,
CWA Section 106 provides that program funding must be withheld from states that fail to create
adequate water quality monitoring and reporting procedures. 33 U.S.C. § 1256(e)(l). EPA could
define "adequate" monitoring and reporting to incorporate the generation and dissemination of
information addressing issues of concern to affected communities.
Similarly, Section 105 of the Clean Air Act (CAA) requires that before EPA approves a
planning grant to an air control agency, EPA must receive assurances that the recipient "has the
capability of developing a comprehensive air quality plan for the air quality control region, which
plan shall include (when appropriate) a recommended system of alerts to avert and reduce the risk of
situations in which there may be imminent and serious danger to the public health or welfare from
air pollutants and the various aspects relevant to the establishment of air quality standards for such
air quality control region, including the concentration of industries, other commercial
establishments, populations and naturally occurring factors which shall affect such standards." 42
U.S.C. § 7405(a)(3). This provision presents EPA with an opportunity to condition grant assistance
on the recipient agency's consideration, when developing its air quality plan, of the extent to which
communities of color and low-income communities are overburdened by industrial and commercial
facilities, as well as consideration of demographic factors in developing the recommended system of
alerts.
Under the Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), states and Tribes may apply to EPA to carry out certain actions authorized by the Act,
including removal and remedial actions, investigations, monitoring, and information gathering. 42
49
-------
U.S.C. § 9604(d). Prior to approving such actions, EPA must first determine whether the state or
Tribe has the capability to carry out related enforcement actions. The statute states generally that
contracts and cooperative agreements relating to such actions are subject to the terms and
conditions that EPA prescribes. Id. Thus, in determining whether to authorize and provide funding
for state actions, EPA has authority to consider whether the state has a record of enforcing its
environmental laws consistently among different communities. EPA could also consider whether a
state is likely to set cleanup priorities in a manner that takes into account environmental justice
concerns.
Finally, TSCA Section 28 authorizes EPA to make grants to states for programs that prevent
or eliminate unreasonable health and environmental risks relating to a chemical substance, where
EPA is "unable or not likely" to take such action itself. 15 U.S.C. § 2627(a). In considering whether
states have demonstrated a "priority need" warranting federal assistance, EPA must consider the
seriousness of the health effects, the extent of the exposure, and the extent to which chemicals
substances are manufactured, processed, used, and disposed of in the state.. 15 U.S.C. § 2627(b)(2).
EPA thus can potentially incorporate environmental justice considerations in its evaluation of state
grant proposals.
II. FINANCIAL ASSISTANCE FOR RESEARCH ACTIVITIES
The need for focused research activities has been a prominent part of the national-dialogue
on how EPA and other federal agencies can promote environmental justice. The National
Environmental Justice Advisory Council, and a number of federal science and health bodies have
contributed to identifying these needs. See, for example, NATIONAL ENVIRONMENTAL JUSTICE
ADVISORY COUNCIL, ENVIRONMENTAL JUSTICE AND COMMUNITY BASED HEALTH MODEL
DISCUSSION AND RECOMMENDATIONS REPORT (U.S. Environmental Protection Agency, pub.,
EPA 300-R-01-002, April 2001); INSTITUTE OF MEDICINE, TOWARD ENVIRONMENTAL JUSTICE:
RESEARCH, EDUCATION AND HEALTH POLICY NEEDS (1999). EPA has authority to direct its
considerable research funding to projects that will advance knowledge of health and environmental
impacts on communities of color and low-income communities — knowledge that can strengthen the
foundation for taking regulatory actions to improve envkonmental protection in those communities.
EPA can do this by identifying specific projects that can address the most pressing risks to heavily
impacted communities, and by ensuring that, where possible, basic research activities incorporate
environmental justice considerations. Moreover, EPA can promote envkonmental justice by
addressing the manner in which such research is carried out. Participation of affected communities,
both in carrying out research and in providing input to researchers, can be essential in ensuring that
a project will address core issues effectively.
Numerous federal envkonmental statutes give EPA authority to provide financial assistance
for research activities. For the most part, these laws contain provisions that afford ample discretion
for EPA to shape its research agenda in a way that will further envkonmental justice goals and to
include impacted communities in developing and implementing the research programs.
For example, CAA Section 103(b) authorizes EPA to make grants to public or non-profit
private agencies, institutions and organizations, and to individuals, to carry out research activities
50
-------
provided in the Act. 42 U.S.C. § 7403(b). Those activities include "research, investigations,
experiments, demonstrations, surveys, and studies relating to the causes, effects (including health
and welfare effects), extent, prevention, and control of ak pollution." 42 U.S.C. § 7403(a). See also, 7
U.S.C. § 136r(a) (EPA authority under the Federal Insecticide, Fungicide and Rodenticide Act to
provide grants and enter into contracts with federal agencies, universities, or others, "as may be
necessary to carry out the purposes" of the Act); 15 U.S.C. § 2609(a) (EPA authority under TSCA to
enter into contracts and make grants to conduct research "as is necessary to carry out the purposes
of the Act); 33 U.S.C. § 1255 (EPA authority under the Clean Water Act to make grants for
research and development, including grants for demonstration projects).
CERCLA provides authority to award grants and other forms of financial assistance to
address issues that have been of particular concern to environment justice communities. CERCLA
Section 311(c) authorizes EPA to support research concerning the effects on and risks to health and
environment of hazardous substances, as well as the detection of hazardous substances in the
environment. 42 U.S.C. 9660(c). In addition, CERCLA Section 311(d) requires EPA to make
grants to institutions of higher learning to establish and operate at least five hazardous substance
research centers in the United States. 42 U.S.C. 9660(d): The Act further requires that grant
recipients be located in an area that has experienced problems with hazardous substance
management.
Finally, EPA can use the broad research assistance authority provided under these and other
laws to fund community projects that will both advance understanding of environmental justice
issues and address critical local problems. Indeed, EPA created the Environmental Justice Grants to
Small Community Groups grant program based on general authority provided under several
environmental statutes, including the Clean Water Act, 33 U.S.C. § 1254(b)(3); the Clean Air Act, 42
U.S.C. § 7403(b)(3), and the Safe Drinking Water Act, 42 U.S.C. § 300j-l(b)(3). These and other
statutory provisions establish the basis for the agency's Environmental Justice Through Pollution
Prevention Grants program as well. EPA can use such general funding authorities to pursue the
creation of other community funding programs, as well as to fund specific community
environmental justice projects related to the goals of a particular statute.
III. GRANTS FOR COMMUNITY PARTICIPATION
•One of the principal impediments to meaningful community participation in regulatory
decision-making is the lack of resources. Federal environmental laws authorizing EPA to provide
financial assistance for communities to participate in specific regulatory actions and decisions offer
an important opportunity for achieving the goal of early and ongoing involvement of communities
of color and low-income communities in EPA activities.
CERCLA's technical assistance grants provide a well-known example. CERCLA Section
117(e) gives EPA authority to make f 50,000 grants available to any group of individuals that may be
affected by a release or threatened release at any facility listed on the National Priority List. 42
U.S.C. § 9617(e). The grants may be used to obtain technical assistance in interpreting information
with regard to the nature of a hazard, remedial investigation and feasibility study, record of decision,
remedial design, selection and construction of remedial action, operation and maintenance, or the
51
-------
removal action at any NPL site. Grants are limited to $50,000 for a single grant recipient but the
limitation can be waived in certain circumstances. Id.
The Toxic Substances Control Act also provides authority for EPA to fund community
participation in the regulatory process, albeit in the much less common Section 6 rule-making
process for restricting the use of certain chemical substances. Under TSCA Section 6(c), EPA may
compensate any "person" for expert witness fees, attorneys' fees, and other costs of participating, if
the person "represents an interest which would substantially contribute to a fait determination of the
issues to be resolved in the proceeding" and if they demonstrate that they lack sufficient resources
to participate adequately. 15 U.S.C. § 2605(c)(4)(A). Moreover, the Act provides that not more than
25 percent of the total amount paid under this section may be paid to the regulated community or its
representatives. 15 U.S.C. § 2605 (c) (4) (B). While EPA does not currently make frequent use of
rule-making under Section 6, this provision authorizes the agency to address directly a fundamental
problem in effective community participation in such proceedings in the future.
In addition, the Clean Air Act provides general authority to fund community groups that
could be used to further participation in EPA activities. CAA Section 103(a)(2) requites EPA to
"encourage, cooperate with, and render technical services and provide financial assistance to air
pollution control agencies and other appropriate public or private agencies, institutions, and
organizations, and individuals" in conducting activities for the prevention and control of air
pollution. 42 U.S.C. § 7403(a)(2). This section authorizes EPA to provide technical and financial
aid to affected community groups and individuals in any activity aimed at preventing and controlling
ak pollution, including participation in regulatory decision-making. Such assistance could be used
by community groups in many different way, including hiring independent technical experts.
IV. FINANCIAL ASSISTANCE FOR LOCAL INFRASTRUCTURE AND
EMERGENCY PROJECTS
One of EPA's largest financial assistance programs falls under the Safe Drinking Water Act,
which authorizes financial assistance to state drinking water treatment revolving loan funds; these
state funds, in turn, provide assistance to community water systems and non-profit non-community
water systems. 42 U.S.C. § 300j-12(a)(l)(B). Public water systems are allowed to use this assistance
only for those types of expenditures that EPA has determined will facilitate compliance with
applicable national primary drinking water regulations or otherwise significantly further the health
protection objectives of the program. EPA thus has a significant opportunity to ensure that local
public water systems address environmental justice concerns.
The Safe Drinking Water Act also provides EPA with authority to target financial assistance
for drinking water systems to specific communities. SDWA Section 1456 authorizes EPA and other
federal agencies to provide grants to the states of Arizona, California, New Mexico, and Texas for
assistance to low-income communities known as colonias, which are located along the U.S.-Mexico
border and lack a safe drinking water supply or adequate facilities for providing safe drinking water.
The grants, which may cover up to 50 percent of the costs of carrying out the funded project, are to
be used to facilitate compliance with national primary drinking water regulations or otherwise
significantly further the health protection objectives of the Act. The grants are also required to be
52
-------
used to provide assistance to such communities where the "residents are subject to a significant
health risk . . .attributable to the lack of access to an adequate and affordable drinking water supply."
42 U.S.C. § SOOj-16.
CERCLA authorizes a different type of financial assistance for local government
environmental activities. CERCLA Section 123 allows EPA to reimburse local community
authorities up to $25,000 for expenses incurred in carrying out temporary emergency measures
necessary to prevent or mitigate injury to human health or the environment associated with a release
or threatened release of a hazardous substance. 42 U.S.C. § 9623. Measures may include security
fencing to limit access, response to fires and explosions, and other measures which require
immediate response at the local level. This allows EPA to provide a potentially significant resource
for addressing threats posed by hazardous substances in affected communities.
Finally, the Toxic Substances Control Act authorizes a form of "in-kind" assistance where a
local government has failed to take appropriate action to protect public health. TSCA Section 208
provides EPA with authority to act to protect human health or the environment if the presence of
asbestos in a school poses "an imminent and substantial endangerment to human health or the
environment, and . . . .the local educational agency is not taking sufficient action ... ." 15 U.S.C. §
2648(a). EPA can use this provision to target its resources to address asbestos exposure in low-
income communities and other communities that lack resources to adequately maintain school
facilities.
53
-------
54
-------
CHAPTER 8
PUBLIC PARTICIPATION
Meaningful public involvement in EPA activities is essential to achieving environmental
justice goals. Participation by communities of color and by low-income communities helps ensure
that core environmental justice issues, such as disproportionate exposure to environmental harms
and risks, are raised and ultimately addressed. Indeed, some have suggested that the historic lack of
participation by these communities in EPA activities may account, in part, for some of the
substantive problems that environmental justice advocates are seeking to remedy. E.g., John C.
Duncan, Multicultural Participation in the Public Hearing Process, 24 COLUM. J. ENV'TLL. 169 (1999).
All of the major environmental statutes provide discretionary authority and, in many
situations, explicitly require EPA to involve the public in some manner when implementing their
mandates. The majority of the statutes rely on standard approaches to public involvement in
government decision-making that were developed in the 1970s and 1980s. See, e.g., U.S. EPA, Public
Participation in Programs Under the Resource Conservation and Recovery Act, the Safe Drinking
Water Act, and the Clean Water Act, 40 C.F.R. Part 25. These approaches focus primarily on
providing notice and an opportunity to comment on proposed policies and activities, and on
convening public meetings and hearings. In recent years, spurred in part by grassroots efforts,
advances in information technology and changing political, and cultural values in both the agency
and the general public, EPA's approach to involving the public in its activities has shifted to a more
participatory approach. These activities are represented in initiatives such as EPA's Stakeholder
Involvement Action Plan, the Community-Based Environmental Protection Program Initiative, and
the agency's revisions to its long-standing public participation policy, which reaffirms the notice-
and-comment approach while also expanding it and updating it to take account of new
developments and technologies. See Draft Public Involvement Policy, 65 Fed. Reg. 82335 (Dec. 28,
2000).
EPA has considerable legal authority to involve low-income communities and communities
of color in agency activities. In some cases, the statutes include specific tools for facilitating public
.involvement, such as financial assistance programs, citizen petitions, and information
clearinghouses. In other cases, the statutory provisions are more generic and simply require notice
and the opportunity for comment on certain EPA activities. In all of these cases, EPA has
considerable discretion in how it actually implements the provisions. The agency's exercise of this
discretion is crucial, because the same requirements can result in considerably different types of
public involvement depending on how they are implemented. Proactive efforts by EPA can result
in more meaningful public involvement, while perfunctory implementation may yield only
superficial participation.
In navigating the complex regulatory processes that often accompany EPA's activities,
communities of color and low-income communities not only face the same hurdles as all citizen
stakeholders, but they also may face additional challenges due to limited resources, language barriers,
and political or cultural differences in the way "participation" is defined in the first place. Both
55
-------
inside and outside of EPA, there have been a number of worthwhile efforts to identify these
challenges and propose possible solutions. See U.S. EPA, RCRA Expanded Public Participation
Rule, 60 Fed. Reg. 63417 (Dec. 11, 1995); National Environmental Justice Advisory Council, The
Model Plan for Public Participation (U.S. Environmental Protection Agency, pub., EPA-300-K-00-
001, Feb. 2000) [hereinafter "NEJAC Plan"]; Duncan, 24 COLUM. J. ENV'TLL. 169. The
approaches being discussed and tried include publishing documents in local languages in addition to
English, actively publicizing the availability of financial or technical assistance for community
participation, and providing training about how EPA procedures and programs work. Under many
of the statutory provisions, EPA akeady has the authority to take these and other steps to enhance
public participation, as discussed below and in the individual chapters of this report.
Above all, EPA has general discretionary authority under most of the statutes to involve
affected communities early in the decision-making process. When communities are brought in late
in the process, it reduces the likelihood that they can shape the proposals under consideration or
fundamentally influence EPA's or the project proponent's approach. The need for encouraging
early community involvement is intensified by the perception that the regulated community has
ample time and resources to influence EPA both early on and throughout the process.
Likewise, EPA has authority to implement the numerous existing notice-and-comment
provisions in a more proactive manner. Increasingly, communities are pointing out that the
traditional approach of posting notice in newspapers or the Federal Register is inadequate to prompt
participation. Providing notice through avenues such as local newsletters and direct mailings to
affected communities may be viewed as more effective; further, the use of non-technical, lay
language in notices and in. substantive background materials can be critical to fostering effective
public participation by low-income communities and communities of color. Some statutes actually
contain plain-language requirements for certain information that EPA makes available to the public,
but even without specific statutory authority EPA can, and often already does, exercise its
discretion to use plain language in public materials. And in implementing the many provisions that
require documents to be made available to the public, EPA can make such information available in
convenient locations and at convenient times, and also make information available on the Internet.
Such approaches are incorporated directly into EPA's Draft Public Involvement Policy, which
specifically aims to "improve involvement opportunities for minority, low-income and underserved
populations." 65 Fed. Reg. at 82336; see id. at 82338-43. They also are being converted into practical
checklists to sensitize agencies to the specific needs of these communities. E.g., NEJAC Plan at 15-
18.
In. addition, in order to meaningfully involve low-income communities and communities of
color in EPA activities, the agency has authority to foster approaches that allow for ongoing
substantive participation, such as federal advisory committees, site-specific community advisory
boards, and regulatory negotiations. Some of these approaches are provided for under specific
statutes, but in other cases EPA could rely on more general provisions to use these mechanisms.
Finally, some of the most powerful public participation tools for low-income communities
and communities of color are financial assistance programs. EPA has authority to implement its
numerous financial assistance programs in a manner that encourages low-income communities and
communities of color to seek funding and participate in EPA activities. For example, the agency
56
-------
can actively publicize these programs and explain them to potential community participants. Such
funding programs are covered more fully in Chapter 7.
The remainder of this chapter outlines the principal types" of statutory authorities for EPA to
promote environmental justice through increased community participation in the regulatory process.
While the approaches described above may be broader than specifically required by the statutes,
both long-standing EPA practice and judicial interpretation appear to support agency efforts that
could foster more meaningful and frequent involvement by low-income communities and
communities of color. In all cases, the optimal approach to fostering involvement of affected
communities in particular activities can best be determined by working with community residents to
determine their needs and preferences.
I.
GENERAL PUBLIC PARTICIPATION PROVISIONS
Several environmental statutes include broad policy statements that emphasize the
importance of public participation. In some cases, these provisions are declarations that do not
confer specific authority. For example, Section 101(e) of the Clean Water Act (CWA) contains
broad language favoring public participation in the development, revision, and enforcement of any
regulations, standards, effluent limitations, plans or programs established by EPA under the Act, and
requires EPA to develop and publish regulations specifying minimum guidelines for public
participation in such processes. 33 U.S.C. § 1251 (e).
In other cases, these provisions impose specific obligations on EPA. For example, Section
113(k)(2) of the Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) requires the agency to issue regulations establishing procedures for "appropriate
participation of interested persons" in developing the administrative records on which EPA bases its
selection of removal actions and on which judicial review of removal actions is based. 42 U.S.C. §
9613(k)(2). Similarly, CERCLA Section 113(k)(3) requires EPA to create procedures for
participation of interested persons in developing the administrative records for the selection of
remedial actions. The procedures must include, at a minimum: (1) notice to potentially affected
persons, accompanied by a brief analysis of the plan and alternative plans that were considered; (2) a
reasonable opportunity to comment and provide information regarding the plan; (3) an opportunity
for a public meeting in the affected area; (4) a response to each of the significant comments,
criticisms and new data submitted in written or oral presentations; and (5) a statement of the basis
and purpose of the selected action. 42 U.S.C. § 9613(k)(3). The pesticide laws likewise contain
broad public participation provisions. Section 21 (c) of the Federal Insecticide, Fungicide and
Rodenticide Act (FIFRA) provides that in connection with the suspension or cancellation of a
pesticide registration or any other actions authorized by the Act, EPA has discretion to solicit the
views of "all interested persons" either orally or in writing. 7 U.S.C. § 136s(c).
As discussed earlier in Chapters 1 and 2, EPA has substantial discretion to interpret and
implement such broad grants of statutory authority. Given consistently favorable policy statements
throughout the agency's statutes about the importance of public participation, the numerous
provisions requiring participation at key points in the decision-making process, and long-standing
agency practice, most types of agency initiative to expand public participation fall well within this
57
-------
discretionary authority. This likely would include most existing or proposed efforts to tailor
participatory processes to the specific needs of communities of color and low-income communities.
II. NOTICE-AND-COMMENT PROCEDURES
The most common public participation provisions in EPA's environmental statutes are those
that require notice to the public of proposed EPA actions and an opportunity for the public to
submit comments on the proposed actions. The statutes often specifically provide an opportunity
for a hearing in connection with notice-and-comment procedures. It should be noted that even
when a statute does not specifically require notice-and-comment procedures, such procedures may
be required under the Administrative Procedure Act (APA) if the EPA action constitutes an
"informal rule-making" within the meaning of that statute. 5 U.S.C. § 553. EPA also has
promulgated agency-wide public participation regulations that codify the requirements of both the
APA and media-specific environmental statutes. See 40 C.F.R. Part 25 (RCRA, Clean Water Act,
and Safe Drinking Water Act); 40 C.F.R. Part 124 (RCRA, SDWA UIC, CAA PSD and CWA
NPDES permitting programs).
Because notice-and-comment requirements typically are quite general even where the
statutes establish specific guidance, they provide considerable discretion to EPA in implementing
them. If EPA merely follows the letter of the statutes and regulations, it is less likely that
communities of color and low-income'communities will participate. However, if EPA takes the
initiative to notify affected communities of the opportunity to comment, uses non-technical
language in its notices, arranges for convenient hearing locations and times, and generally makes the
comment process understandable and accessible, it can facilitate more community involvement.
Such measures are reflected in the agency's Draft Public Involvement Policy, which would allow the
agency to:
(a) increase efforts to identify groups or individuals interested in or affected by an
issue and who represent a balance of views; (b) provide notices and outreach
materials in 'plain English,' and in other languages when appropriate; (c) listen to,
seek to understand, and involve stakeholders in issues of critical importance to them;
(d) select the most appropriate level of effort and mechanisms for public
involvement in any specific circumstance; (e) incorporate Environmental Justice (EJ)
considerations; (Ł) inform and involve the public earlier; and (g) evaluate EPA public
involvement policies and practices.
65 Fed. Reg. at 82335. Further, EPA in some cases already is using its discretion to involve low-
income communities and communities of color in discussing proposals prior to initiating formal
notice-and-comment procedures. RCRA Expanded Public Participation Rule, 60 Fed. Reg. 63417.
Most statutes authorize EPA to develop specific programs through regulations and, in doing
so, to seek comment from the public. For example, Clean Water Act Section 304 requires EPA to
promulgate detailed guidelines for the agency's adoption or revision of effluent limitations and to
specify the factors that it will use in determining technology standards. These guidelines must be
reviewed annually with public comment. 33 U.S.C. § 1314(m). Similarly, the Toxic Substances
58
-------
Control Act (TSCA) requires formal rule-making, including notice-and-comment requirements, for
most actions authorized under the Act. For example, TSCA Section 4(b)(5) requires that test rules
be issued in conformity with the Administrative Procedure Act, and specifies that EPA must
provide an opportunity for interested persons to make written and oral presentations of information.
15 U.S.C. § 2603(b)(5). TSCA also requires notice and comment for rule-making activities under
Section 6 of the Act that impose restrictions on chemical substances. 15 U.S.C. § 2605(c)(2)(C). In
place of formal hearing procedures under the APA, TSCA in such cases requires informal hearings
and provides guidelines for conducting them. Id.
The National Environmental Policy Act (NEPA) environmental impact statement (EIS)
process creates important opportunities for public participation. As discussed Chapter 10 of this
report, the Council on Environmental Quality's (CEQ) NEPA regulations require each federal
agency to make "diligent efforts" to include the public in EIS procedures, including notice, hearings,
and provision and solicitation of information, 40 C.F.R. § 1506.6, and the CEQ has produced
specific guidance for increasing participation by low-income communities and communities of color.
Council on Environmental Quality, Environmental Justice: Guidance under the National
Environmental Policy Act (Dec. 10, 1997). EPA likewise has acknowledged the importance of
addressing environmental justice issues both in the substance of an EIS and in the public procedures
that produce it. U.S. EPA Office of Federal Activities, Final Guidance for Incorporating
Environmental Justice Concerns in EPA's NEPA Compliance Analyses (April 1998). The agency
has set the goal of having procedures that encourage active community participation, recognize
community knowledge, and utilize cultural formats and exchanges. Id. at 4.2
Notice-and-comment procedures also are used for agency decisions in specific cases, such as
permit decisions and other fact-specific situations. For example, under the CWA permitting
programs, EPA is required to give an opportunity for public hearings before issuing permits for the
discharge of any pollutant or for dredge-and-fill activity. 33 U.S.C. § 1342(a)(l); 33 U.S.C. § 1344(a).
Similarly, FIFEA requires EPA to publish a notice of each application for registration of a pesticide,
and must provide a thirty-day period for interested persons to comment. 7 U.S.C. § 136a(c)(4). The
. Clean Air Act (CAA) regulations also require that permit proceedings and renewals must provide
adequate procedures for public notice, including opportunity for public comments and hearings on
draft permits. 40 C.F.R. § 70.7(h). CERCLA Section 117(a) requires fakly extensive public notice
and comment during the process of selecting remedial actions for the cleanup of Superfund sites.
42 U.S.C. § 9617(a). The Safe Drinking Water Act (SDWA) requires notice and an opportunity for a
public hearing before the grant of any exemption to a public water supply system from any
maximum contaminant level or treatment technique. 42 U.S.C. § 300g-5(i). TSCA Section 4(b)(5)
requires that EPA must provide an opportunity for interested persons to make written and oral
presentations of information on test rules, and related regulations require that prior to making a
determination of the need for testing, EPA will hold a public "focus meeting" to discuss and obtain
comments on the testing recommendation of the inter-agency testing committee. 15 U.S.C. §
2603(b)(5), 40 C.F.R. § 790.22(a).
Finally, notice-and-comment procedures also are used in settlements of enforcement actions.
For example, CAA Section 113(g) requires that at least 30 days before a consent order or settlement
agreement is final or filed in court, EPA must provide a "reasonable opportunity" by notice to
persons who are not parties or interveners in the action to comment in writing. 42 U.S.C. § 7413(g).
59
-------
EPA is requked to consider promptly any written comments, and may withdraw or withhold its
consent to the proposed order or agreement if the comments disclose facts or considerations that
indicate that consent is inappropriate, improper, inadequate or inconsistent with CAA requirements.
Id. CERCLA contains similar provisions that require notice and comment prior to finalizing de
minimis settlements and settlements of administrative orders for recovery of costs incurred by the
government. 42 U.S.C. § 9622(i). As discussed more fully in Chapter 5, settlement discussions
provide EPA with a great deal of flexibility to fashion remedies that are geared to a specific site and
nearby communities. By expanding the public proceedings associated with settlements, the agency
can ensure that these communities' needs are expressed and reflected in the final order or
agreement.
Some statutes provide very detailed direction as to the form of notice required and the type
of accompanying documents. For example, CERCLA Section 117(a) states that the notice and brief
analysis requked for a proposed remedial action plan must include sufficient information to provide
a reasonable explanation of the proposed plan and alternative proposals considered. 42 U.S.C. §
9617(a). CERCLA Section 117(b) requires that notice of a final remedial action plan must be
published and the plan made available, and that the plan must be accompanied by a discussion of
any significant changes and the reasons for such changes, including a response to each of the
significant comments, criticisms, and new data submitted in written or oral presentations. 42 U.S.C.
§ 9617(b). Section 117(d) of CERCLA explains that "publication" includes, at minimum,
publication in a major local newspaper of general ckculation. 42 U.S.C. § 9617(d). The Safe
Drinking Water Act likewise includes more detailed dkection, requiring EPA when setting drinking
water standards to present public health effects information to the public in a manner that is
"comprehensive, informative, and understandable." 42 U.S.C. § 300g-l(b)(3)(B). Each of these
provisions creates an opportunity for EPA to tailor documents and procedures to maximize
community participation.
III. CITIZEN ADVISORY GROUPS AND PARTICIPATORY MECHANISMS
Several statutes establish mechanisms for involving the public in a more dkect manner than
standard notice-and-comment procedures. For example, the SDWA establishes a National Drinking
Water Advisory Council, which includes members of the public who advise EPA about issues
related to the agency's activities, functions, and policies under the Act. 42 U.S.C. § 300J-5. Clean
Ak Act Section 117(b) requkes that EPA, "to the maximum extent practicable . , . consult with
appropriate advisory committees, independent experts," and others prior to issuing ak quality
criteria, hazardous ak pollutant lists, standards, or regulations. 42 U.S.C. § 7417(b). Section 117(a)
states that members of these EPA advisory committees "shall include, but not be limited to, persons
who are knowledgeable concerning ak quality from the standpoint of health, welfare, economics or
technology." 42 U.S.C. § 7416(a). The Act also requkes each state implementation plan to contain
requkements that any board or body that approves permits or enforcement orders must have at least
a majority of members who represent the public interest. 42 U.S.C. § 7428(a)(l):
Such advisory committee mechanisms have the potential to lead to more meaningful and
dkect involvement of low-income communities and communities of color in EPA activities. Again,
the agency's approach to implementing these mechanisms is crucial. EPA can use its discretion to
60
-------
actively recruit advisory committee members who are representative of these communities or well-
versed in their concerns, assist them in participating and understanding agency processes, and make
efforts to ensure that barriers to participation are reduced. The agency already has taken steps in
this direction. For example, in response to a request from the EPA Region 2 office, the agency's
Community Outreach and Involvement Office created a Spanish-language version of its "Superfund
Community Advisory Group" toolkit, which is intended to give Spanish-speaking communities in
Puerto Rico and throughout the United States a greater opportunity to participate in citizen advisory
groups under CERCLA. See U.S. EPA, 1998 Environmental Justice Biennial Report: Working
Towards Collaborative Problem-Solving (June 1999) at 2.7.
IV. CITIZEN PETITIONS
Several statutes provide authority for citizens to petition EPA to take specific action. These
provisions potentially are powerful mechanisms for involving low-income communities and
communities of color in policing facilities in their area and in other EPA activities. Moreover, the
statutes do not appear to preclude EPA from actively publicizing the availability of these tools and
assisting communities in how to use them.
For example, Section 313(e) of the Emergency Planning and Community Right-to-Know
Act (EPCRA) provides that any person may petition EPA to add or delete a chemical from the list
of toxic chemicals subject to the Act's release reporting requirements. 42 U.S.C. § 11023(e). Section
408(d) of the Federal Food and Drug Control Act (FFDCA) provides that any person may file with
EPA a petition proposing the issuance of a regulation that establishes, modifies, or revokes a
pesticide tolerance or an exemption, or to file objections to the issuance of a regulation or order
concerning pesticide tolerances or exemptions. 21 U.S.C. § 346a(d)(l); 21 U.S.C. § 346a(g)(2)(B).
EPA, on its own initiative or upon request of an interested person, after due notice, must hold a
public evidentiary hearing and receive factual evidence relevant to material issues of fact raised by
the objections. 21 U.S.C. § 346a(g)(2)(B).
Similarly, CERCLA Section 105(d) provides that any person who is affected by an actual or
threatened release of a hazardous substance may petition EPA for a preliminary assessment of the
hazard to public health and environment. The agency is required to perform the assessment within
twelve months or explain why such an assessment would not be appropriate. 42 U.S.C. § 9605(d).
TSCA Section 21 establishes a mechanism through which citizens may petition EPA to issue,
amend, or repeal a rule or to take a number of different types of regulatory actions relating to
chemical substances. 15 U.S.C, § 2620(b)(l). EPA may then hold a public hearing upon receipt of a
petition. A TSCA Section 21 petition filed by community groups in the U.S.-Mexico border region
led EPA in 1994 to issue subpoenas to U.S. companies for information concerning toxic chemical
releases to the New River.
61
-------
V. INFORMATION AVAILABILITY, CLEARINGHOUSES,
AND DATABASES
Accurate, timely generation and disclosure of information is essential for meaningful public
participation. A community's ability to engage in decision-making procedures depends directly on
the quality of information available to it. EPA has considerable authority to require information
from pollution sources, to disclose it to the public upon request, and to proactively interpret,
disseminate, and translate it into forms that will be most accessible to affected communities.
The Freedom of Information Act (FOIA) is the primary federal statute governing agency
information disclosure. 5 U.S.C. § 552. FOIA generally establishes categories of information that
must be disclosed and exemptions for information that can be shielded from disclosure. EPA's
FOIA regulations create general procedures to allow the agency to deal with the widest possible
range of information requests. 40 C.F.R. Part 2. Beyond these, it may be possible for EPA to create
special, accelerated procedures to assist in information disclosure where environmental justice
concerns are implicated. These mechanisms could include, for example, more rapid processing of
requests for information, automatic provision of new reports and data to previously identified
community leaders, or other procedures that allow local residents the opportunity to learn of new
developments promptly enough to absorb the information and make use of it in advancing
community viewpoints.
Similarly, the National Environmental Policy Act provides that federal agencies must "make
available to States, counties, municipalities, institutions, and individuals, advice and information
useful in restoring, maintaining, and enhancing the quality of the environment." 42 U.S.C. §
102(2)(G). As the administering agency for most of the major federal environmental laws, EPA has
numerous opportunities to gather and disseminate environmental information to the public, both
within the context of environmental impact assessment and outside of it. This NEPA mandate
provides additional support for the agency's authority to supply information in order to enhance the
ability of low-income communities and communities of color to identify and address environmental
and health risks.
Another statute directly administered by EPA, the Emergency Planning and Community
Right-to-Know Act, is fundamentally a mechanism for providing to the public information about
toxic chemical releases from specific facilities. Data produced by facility reporting on chemical
releases and chemical inventories have been a powerful tool enabling community activities to
address chemical risks ever since the Act's passage in 1986. As discussed in detail in Chapter 17,
EPA has significant authority to set reporting requirements and to ensure that the information is
made available to the public, including to low-income communities and communities of color. E.g.,
42 U.S.C. § 11023; 42 U.S.C. § 11002(a).
In addition to FOIA, NEPA, and EPCRA, most of the pollution control statutes EPA
administers contain specific provisions that require the agency to make certain information or data
available to the public. Typical of these provisions is Section 3(c) of FIFRA, which requires EPA,
within thirty days after registration of a pesticide, to make available to the public the data given in
the registration statement, along with any other scientific information EPA deems relevant to its
decision whether to approve the registration. 7 U.S.C. § 136a(c)(2)(A). Similarly, CAA Section
62
-------
114(c) requires EPA to make "any records, reports, or information" pertaining to compliance
certifications arid monitoring data available to the public except where there is a showing that the
information at issue is entitled to protection as a trade secret. 42 U.S.C. § 114(c). CWA Section
308(b) requires the agency to disclose effluent data. 33 U.S.C. § 1318(b).
Similarly, CERCLA Section 113(k)(l) requires EPA to make the administrative record for
the selection of Superfund response actions available to the public at or near the Superfund facility,
and the agency may also place duplicates of the records at any location. 42 U.S.C. § 9613(k)(l).
CERCLA Section 117(a) requires that transcripts of all public meetings must be kept and made
available to the public. In addition, each item received, developed, published or made available to
the public must be made available for public inspection and copying at or near the facility, 42 U.S.C.
§ 9617(a), and CERCLA Section 117(b) requires that all final remedial action plans must be made
available to the public before remedial actions are commenced. 42 U.S.C. § 9617(b).
When EPA adopts regulations for contaminants in public water systems, the agency is
required under SDWA Section 1412(b)(3)(B) to present information on public health effects in a
manner that is "comprehensive, informative, and understandable." 42 U.S.C. § 300g-l(b)(3)(B).
The statute sets out requirements for health effects information that must be included in the
documents that EPA makes available to the public in support of the rule-making. The Clean Air
Act also provides direct authority for EPA to help make regulatory information more
understandable and useful to affected communities. CAA Section 103 (a) (2) requires EPA to
"encourage, cooperate with, and render technical services and provide financial assistance to air pollution
control agencies and other appropriate public or private agencies, institutions, and organizations,
and individuals" in carrying out activities to protect air quality. 42 U.S.C. § 7403 (a) (2) (emphasis
added). EPA therefore has authority to provide technical assistance to communities to facilitate
their involvement in the regulatory process and support local projects to improve air quality.
In some cases, the duty to make information available to the public is imposed on the
regulated community, and EPA is authorized to enforce this duty. CAA Section 129(c) requires
solid waste incineration units to perform emissions monitoring and to make their monitoring results
available for inspection and copying by interested members of the public. 42 U.S.C. § 7429(c).
Section 1414(c)(4)(A) of the SDWA requires community water systems to mail to each customer at
least annually a consumer confidence report on the level of contaminants in the system's drinking
water. 42 U.S.C. § 300g-3(c)(4)(A). Similarly, public water systems are required to provide notice of
any failures to comply with national primary drinking water regulations, and the frequency, form,
and content of these notices also is established by EPA. 42 U.S.C. § 300g-3(c)(l). The agency can
use such authorities to ensure that the materials are easy to understand, multilingual where
necessary, and include information on issues faced by low-income communities and communities of
color, such as pollutants to which they may be particularly vulnerable.
Several of the statutes require EPA to develop databases and clearinghouses that can provide
information to the public and help foster their involvement in EPA activities. EPCRA's Section
3130) requirement that EPA establish and maintain reported toxic chemical releases in a computer
database is central to the Act's information dissemination objectives. 42 U.S.C. § 11023(j). Section
405(e) of TSCA requires EPA to establish a National Clearinghouse on Childhood Lead Poisoning,
which in addition to performing information-dissemination functions specified in the Act, is
63
-------
required to "perform any other duty that the Administrator determines necessary to achieve the
purposes of this Act." 15 U.S.C. § 2685(e)(l). CAA Section 108(h) requires EPA to make
information regarding emissions control technology available to the general public though a central
database, including information derived from operating permits for existing sources. 42 U.S.C. §
7408(h). EPA can evaluate on an ongoing basis the extent to which these tools could be made
more useful to low-income communities and communities of color.
VI. PUBLIC EDUCATION
Several statutes require that EPA undertake activities to increase public awareness of
environmental and health issues addressed in the law, and EPA can ensure that these activities
address the needs of impacted communities. For example, Clean Air Act Section 127(a) requires
that each state implementation plan contain provisions to enhance public awareness of the measures
that can be taken to prevent air quality standards from being exceeded and of the ways in which the
public can participate in regulatory and other efforts to improve air quality. 42 U.S.C. § 127(a).
TSCA Subchapter IV, which addresses lead hazard reduction, contains a number of important
provisions. Section 405 (d) requires EPA to sponsor public education and outreach activities to
increase community awareness of potential exposures to lead, health impacts from exposure, and
measures to reduce the risk of exposure, 15 U.S.C. § 2685(d)(l); while Section 406 requires the
agency to publish, and periodically to revise, a lead hazard information pamphlet. 15 U.S.C. §
2686(a). The FFDCA directs EPA to publish and provide to large retail grocers for public display
certain pesticide-related information in a format understandable to lay people. 21 U.S.C. § 346a(o).
VII. PUBLIC PARTICIPATION RELATED TO STATE PROGRAMS
As discussed in Chapter 4 of this report, EPA has some discretion to consider
environmental justice issues when determining whether to delegate program authority to a state,
including whether the state has sufficient public participation requirements in place that could
involve traditionally disenfranchised communities.
For example, under the CAA Tide V operating permit program, EPA sets minimum
requirements for any permit program administered by a delegated state or local control agency.
These requirements include public participation and information sharing. 40 C.F.R. § 70.4(b). CAA
Section 110(a) requires each implementation plan submitted by a state to be adopted by the state
after reasonable notice and a public hearing. 42 U.S.C. § 110(a)(2)(B). In addition, prior to
redesignation of any "prevention of significant deterioration" areas in a state implementation plan,
Section 164(b) states that notice shall be given and a public hearing conducted in the areas proposed
to be redesignated and areas that may be affected by the proposed redesignation. 42 U.S.C. §
7474(b)(l)(A). Prior to the public hearing, a description and analysis of'the health, environmental,
economic, social and energy effects of the proposed redesignation must be prepared and made
available for public inspection. Id. Similarly under the Clean Water Act, state programs must
provide for public participation in their National Pollutant Discharge Elimination System permitting
programs, including citizen intervention in enforcement actions and state agency response to citizen
complaints. 40 C.F.R. §§ 123.30,123.27 (d). EPA could consider the effectiveness of these
64
-------
procedures in achieving community participation, when granting or reviewing its delegation of
program authority to a state.
65
-------
66
-------
CHAPTER 9
NATIONAL ENVIRONMENTAL POLICY ACT ("NEPA")
42 U.S.C. §§ 4321-4347, NEPA §§ 2-209
42 U.S.C. § 7609, Clean Air Act § 309
Enacted in 1969, the National Environmental Policy Act (NEPA) is "our basic national
charter for protection of the environment." 40 C.F.R. § 1500.1. The Act sets forth a national
environmental policy that is sweeping in scope, yet based on the achievement of clear objectives.
To implement this policy, NEPA establishes the environmental impact statement procedure and a
number of other administrative mechanisms.
NEPA creates opportunities for federal agencies to incorporate considerations of
environmental justice into a vast range of their decision-making processes. NEPA authorizes
agencies to analyze a very broad range of impacts on communities of color and low-income
communities that are likely to result from proposed agency actions. The statute also allows federal
agencies to ensure the meaningful involvement of affected communities, as well as state, local, and
tribal governments, in agency decisions.
This chapter provides an overview of NEPA, and then describes the principal ways in which
EPA could advance environmental justice goals using three areas of NEPA authority. First, EPA,
like other federal agencies, can incorporate environmental justice into its decision-making under
NEPA's process for examining significant environmental impacts. Second, EPA has a special duty
under Section 309 of the Clean Air Act to review the environmental impact statements of other
agencies and, in certain circumstances, to refer unsatisfactory matters to the White House Council
on Environmental Quality (CEQ). Through this power, EPA can ensure that other federal agencies
have addressed environmental justice concerns in their decision-making processes. Third, EPA has
authority to advance environmental justice in a wide variety of contexts pursuant to NEPA's other,
less well-known administrative mechanisms.
I. OVERVIEW OF NEPA
A. Statement of the National Environmental Policy
NEPA's purposes, as set forth in Section 2, are "[t]o declare a national policy which will
encourage productive and enjoyable harmony between man and his environment; to promote efforts
which will prevent or eliminate damage to the environment and biosphere and stimulate the health
and welfare of man; to enrich the understanding of the ecological systems and natural resources .
important to the Nation; and to establish a Council on Environmental Quality." 42 U.S.C. § 4321.
Section 101 directs the federal government "to use all practicable means and measures,
including financial and technical assistance, in a manner calculated to foster and promote the general
welfare, to create and maintain conditions under which man and nature can exist in productive
67
-------
harmony, and fulfillthe social, economic, and other requirements of present and future generations of
Americans." 42 U.S.C. § 4331 (a) (emphasis added). According to Section 101(b), "it is the
continuing responsibility of the Federal Government to use all practical means ... to improve and
coordinate Federal plans, functions, programs, and resources" so that the nation may accomplish six
specific goals:
• to "fulfill the responsibilities of each generation as trustee of the environment for
succeeding generations;"
• to "assurefor all Americans safe, healthful, productive, and aesthetically and culturally pleasing
surroundings'"
• to "attain the widest range of beneficial uses of the envkonment without degradation,
risk to health or safety, or other undesirable and unintended consequences-"
• to "preserve important historic, cultural, and natural aspects of our national heritage,
and maintain, wherever possible, an envkonment which supports diversity and variety of
individual choice-"
• to "achieve a balance between population and resource use which will permit high
standards of living and a wide sharing of life's amenities-" and
• to "enhance the quality of renewable resources and approach the maximum
attainable recycling of depletable resources."
42 U.S.C. § 433l(b) (emphases added). Moreover, Section 101(c) confkms the right of each person
to enjoy a healthful envkonment, as well as the responsibility of each person to contribute to the
preservation and enhancement of the envkonment. 42 U.S.C. § 4331 (c).
The national envkonmental policy articulated by NEPA, with its call for the government to
fulfill the "social, economic, and other requkements" of present and future generations, speaks
broadly to the goals of envkonmental justice. NEPA seeks to assure for "all Americans" a healthful
envkonment, as well as aesthetically and culturally pleasing surroundings and a wide sharing of life's
amenities. These goals mean that having certain communities suffer disproportionate exposure to
harmful envkonmental impacts is contrary to the national policy. NEPA requkes the envkonment
to be used "without risk to health or safety, or other undeskable consequences." NEPA commands
that the envkonment be maintained to support "diversity and a variety of individual choice."
Residents of communities of color and low-income communities may use thek envkonment in
certain ways, such as for subsistence hunting and fishing, that differ from the uses of other
communities. NEPA seeks to protect and preserve these uses.
NEPA's importance to the promotion of envkonmental justice was highlighted earlier this
year by the EPA Administrator in an agency-wide memorandum issued to reaffirm the agency's
commitment to envkonmental justice. The Administrator noted that "[i]n the National
Envkonmental Policy Act of 1969 (NEPA), Congress could not have been any clearer when it
stated that it shall be the continuing responsibility of the Federal government to assure for all
Americans 'safe, healthful, productive and aesthetically and culturally pleasing surroundings.'"
Memorandum from Christine Todd Whitman, Administrator, U.S. EPA, EPA's Commitment to
Envkonmental Justice (Aug. 9, 2001).
68
-------
B. Implementation of the National Environmental Policy
1. The Environmental Impact Statement (EIS) Process
NEPA Section 102(2) directs all federal government agencies to perform a number of
specific tasks. Of special significance is Section 102(2) (C), which requires each federal agency to
include in recommendations and reports on "proposals for legislation arid other major Federal
actions significantly affecting the quality of the human environment" a "detailed statement"
covering the following: the environmental impact of the proposed action; any adverse
environmental effects which cannot be avoided should the proposal be implemented; alternatives to
the proposed action; the relationship between local short-term uses of the environment and the
maintenance and enhancement of long-term productivity; and any irreversible and irretrievable
commitments of resources which would be involved in the proposed action should it be
implemented. 42 U.S.C. § 4332(2)(C). This "detailed statement" has come to be known as an
environmental impact statement, or EIS. 40 C.F.R. § 1508.11.
NEPA established the Council on Environmental Quality to carry out a variety of functions
under the statute, including oversight of federal compliance with the Act. 42 U.S.C. §§ 4321-4347.
In particular, CEQ has promulgated regulations that implement Section 102(2) of NEPA. See 40
C.F.R. Parts 1500-1508. These regulations are binding on federal agencies/including EPA. The
CEQ regulations require federal agencies to adopt their own NEPA procedures: 40 C.F.R. § 1507.3.
EPA's regulations are located at 40 C.F.R. Part 6.
The Council on Environmental Quality oversees not only the federal government's
compliance with NEPA, but also federal agencies' compliance with Executive Order 12898,
"Federal Actions to Address Environmental Justice in Minority Populations and Low-Income
Populations," issued on February 11,1994. As such, CEQ has issued a guidance document to assist
federal agencies with their NEPA procedures to ensure that environmental justice concerns are both
identified and addressed. See Council on Environmental Quality, Environmental Justice: Guidance
under the National Environmental Policy Act (Dec. 10, 1997) [hereinafter "CEQ EJ Guidance"],
available at http://ceq.eh.doe.gov/nepa/regs/ej/ej.pdf (last visited Nov. 13, 2001). In its guidance
document, the CEQ suggests that federal agencies consider six principles as they incorporate
environmental justice into the NEPA process.
(1) Agencies should consider the composition of the area affected by the proposed action to
ascertain whether low-income populations, people of color, or Tribes are present. If so, the
agency should determine whether the action might result in disproportionately high and
adverse human health or environmental effects on these populations.
(2) Agencies should consider relevant public health and industry data concerning the
potential for multiple exposures or cumulative exposure to human health or environmental
hazards in the affected population, as well as historical patterns of exposure to
environmental hazards, to the extent that such information is reasonably available.
(3) Agencies should recognize "the interrelated cultural, social, occupational, historical, or
economic factors that may amplify the natural and physical environmental effects of the
69
-------
proposed action." These factors should include the physical sensitivity of the community or
population to particular impacts, the effect of any disruption of the community structure
associated with the proposed action, and the nature and degree of the impact on the
community's physical and social structure.
(4) Agencies should develop effective public participation strategies.
(5) Agencies should assure meaningful community representation in the process, beginning .
at the earliest possible time, while remaining aware of diverse constituencies within any
community.
(6) Agencies should seek tribal representation in the process.
CEQ EJ Guidance at 9. EPA has issued its own guidance document to assist the agency in
incorporating environmental justice goals into the preparation of EISs and Environmental
Assessments (EAs) under NEPA. See U.S. EPA Office of Federal Activities, Final Guidance for
Incorporating Environmental Justice Concerns in EPA's NEPA Compliance Analyses (April 1998)
[hereinafter "EPA EJ Guidance"], available at http://es.epa.gov/oeca/ofa/ejepa.html (last visited
Nov. 9,2001).
Some administrative tribunals recently have incorporated environmental justice concerns
into their review of agency actions under NEPA. In In re Louisiana Energy Services, 47 N.R.C. 77
(1998), for example, the Nuclear Regulatory Commission reversed in part and affirmed in part a
determination by the Atomic Safety and Licensing Board that an EIS for a uranium enrichment
facility failed to adequately consider disproportionate socio-economic impacts on affected low-
income communities of color. In particular, the Commissioners noted the absence of discussion in
the EIS of how pedestrian traffic would be impacted by the closing of an important local road
connecting two African-American communities. The road represented a "vital and frequently used
pedestrian link" between the two communities for many residents who had "no choice but to travel
by foot." Id. See also Southern Utah Wilderness Alliance, 150 I.B.L.A. 158 (1999) (remanding
Bureau of Land Management decision for failure to consider in an Environmental Assessment
certain harm to natural and cultural resources resulting from construction of a visitor station).
EPA's statutory and regulatory authorities for addressing environmental justice concerns as a
federal agency subject to the EIS process are described in detail in Part II, below. That Part also
discusses the approach taken by the CEQ and EPA guidance documents for incorporating
environmental justice into the EIS process.
2.
Other Provisions in NEPA Section 102
Although most commentary and analysis of NEPA focuses on its EIS process, Section 102
contains a number of other directives to federal agencies in connection with the implementation of
the nation's environmental policy. For example, Section 102(1) provides that "to the fullest extent
possible" the "policies, regulations, and public laws of the United States shall be interpreted and
administered in accordance with the policies set forth in [NEPA]." 42 U.S.C. § 4332(1). Additional
70
-------
potential for EPA to promote environmental justice pursuant this and other provisions of NEPA
Section 102 is discussed in Part IV, below.
3.
Clean Air Act Section 309
Under Section 309 of the Clean Air Act (CAA), EPA must review and comment publicly on
the EISs of other federal agencies. 42 U.S.C. § 7609(a). Additionally, upon determining that the
proposed activity of another federal agency is "unsatisfactory from the standpoint of public health
or welfare or environmental quality," the EPA Administrator is directed to publish this
determination and refer the matter to CEQ. 42 U.S.C. § 7609(b). The memorandum accompanying
Executive Order 12898 charged EPA with ensuring that each federal agency whose proposed action
is under review has "fully analyzed environmental effects on minority communities and low income
communities, including human health, social, and economic effects." Memorandum for the Heads
of All Departments and Agencies, accompanying Exec. Ord. 12898 (Feb. 11,1994). Opportunities
for EPA to promote environmental justice under its Section 309 authority are discussed in Part III,
below.
II. OPPORTUNITIES FOR EPA TO PROMOTE ENVIRONMENTAL JUSTICE AS
A FEDERAL AGENCY SUBJECT TO THE EIS PROCESS
The authority of EPA to promote environmental justice pursuant to NEPA has been
discussed most often in the context of the administrative procedure established by Section
102(2)(C). Section 102(2)(C) directs each federal agency to include in recommendations and
reports on "proposals for legislation and other major Federal actions significantly affecting the
quality of the human environment" a "detailed statement" addressing the environmental impacts of
the activity and alternatives to it. 42 U.S.C. § 4332(2)(C).
Although EPA is subject to EIS requirements, as a practical matter, EPA files very few EISs.
For example, EPA filed seven total EISs in 1998, and only one each year in 1999 and 2000. See U.S.
EPA Office of Enforcement and Compliance Assurance, Number of Environmental Impact
Statements Filed by Selected Agencies for the Years 2000, 1999, and 1998, at
http://es.epa.gov/oeca/ofa/act2.html (last modified Sept. 17, 2001). This results, in part, from the
fact that Congress specifically exempts EPA from preparing EISs in certain instances. See, e.g., 33
U.S.C. § 1371(c) (exempting, pursuant to certain exceptions, EPA activities under the Clean Water
Act from NEPA EIS requirements).
The small number of EPA EISs also results, however, from application of the judicially
created "functional equivalence" doctrine. Under this doctrine, EPA is excused from complying
with NEPA "in performing its environmental protection functions under 'organic legislation [that]
mandates specific procedures for considering the environment that are functional equivalents of the
impact statement process."' Western Nebraska Resources Council v. EPA, 943 F.2d 867, 871 (8th Cir.
1991). In other words, the. procedures EPA must employ and the analysis it must undertake
pursuant to the organic legislation are interpreted as addressing the "core" NEPA concerns. Id. at
872. As a result of the functional equivalence doctrine, EPA typically need not prepare NEPA
documentation in connection with permitting or decision-making processes carried out under
71
-------
statutes such, as the Resource Conservation and Recovery Act, the Clean Air Act, or the Federal
Insecticide, Fungicide, and Rodenticide Act. See THE NEPA LITIGATION GUIDE 152-53 (Karin P.
Sheldon & Mark Squfflace, eds., 1999).
EPA possesses the authority, under the clear language of both NEPA and the CEQ
regulations, to subject to the rigors of NEPA analysis decision-making processes that currently are
excused from NEPA review by the functional equivalence doctrine. EPA can promote
environmental justice by increasing voluntary NEPA reviews, to ensure that more decisions benefit
from a rigorous review from an environmental justice perspective. See NATIONAL
ENVIRONMENTAL JUSTICE ADVISORY COUNCIL, ENVIRONMENTAL JUSTICE IN THE PERMITTING
PROCESS 1-293-297 (U.S. Environmental Protection Agency, pub. EPA 300-R-00-004, July 2000).
There is existing agency guidance for subjecting decisions to NEPA voluntarily. See U.S. EPA
Office of Federal Activities, Notice of Policies and Procedures for Voluntary Preparation of
National Environmental Policy Act (NEPA) Documents (1998).
Following is a brief discussion of EPA's authority to promote environmental justice
concerns in connection with various phases of the EIS process. Generally, these phases include (1)
deciding whether or not a proposed action requires the preparation of an environmental impact
statement; (2) conducting a scoping process; (3) preparing the draft environmental impact statement;
(4) allowing for public comment; and (5) preparing a final environmental impact statement and
issuing a decision. Because public involvement is not just critical to the success of the NEPA
administrative process, but absolutely essential in an environmental justice context, a discussion of
public involvement begins the analysis. Throughout this Part, a discussion of the relevant sections
of the statute and regulations is followed by a brief description of CEQ and EPA guidance on
incorporating environmental justice considerations in the EIS process.
A.
Public Involvement
Meaningful public participation, while not itself an individual step in the NEPA
administrative process, is important to the successful implementation of every step in the process.
The CEQ regulations require every federal agency to make diligent efforts to involve the public in
preparing and implementing their NEPA procedures. 40 C.F.R. § 1506.6(a). To this end, an agency
must take the following steps: (1) provide public notice of NEPA-related hearings, public meetings,
and the availability of environmental documents; (2) hold or sponsor public hearings or public
meetings whenever appropriate or in accordance with statutory requirements — one criterion in this
regard is the existence of substantial environmental controversy concerning the proposed action or
substantial interest in holding the hearing; (3) solicit appropriate information from the public; (4)
explain in its procedures where interested persons can obtain information or status reports; and (5)
make materials available to the public pursuant to the Freedom of Information Act, without charge
to the extent practicable (or at cost). 40 C.F.R § 1506.6. EPA's own regulations also recognize the
impprtance of public involvement in NEPA. 40 C.F.R. § 6.400.
Thus, EPA possesses ample authority under NEPA and its implementing regulations, as well
as the agency's own regulations, to involve affected communities throughout the NEPA process in a
meaningful manner. In its environmental justice guidance, EPA affirms public participation as one
of the hallmarks of NEPA. The guidance notes that public interaction, if it is to establish trust with
72
-------
all types of stakeholders, must encourage active community participation, recognize community
knowledge, and utilize cultural formats and exchanges. EPA EJ Guidance at 4.2. Additionally,
because involving affected communities can present unique challenges, the guidance catalogues a
number of these potential challenges (language and communication barriers, technically complex
issues, etc.) and offers potential solutions (use of local .translators, use of plain language in meetings
and printed material, etc.). Id. at Exh. 5. The CEQ environmental justice guidance similarly
recommends a number of specific steps to overcome potential barriers to participation. CEQ EJ
Guidance at 13.
Other possibilities exist for enhancing public participation under NEPA. For example, some
have argued that community members should be given the opportunity to educate themselves on
the technical aspects of a site or facility, as well as on the NEPA process, before the NEPA process
even begins. It also has been argued that a more systematic effort is needed to involve communities
in the EIS process, and that public hearings prior to the EIS should be mandatory. See NATIONAL
ENVIRONMENTAL JUSTICE ADVISORY COUNCIL, REPORT OF THE ENVIRONMENTAL JUSTICE
ENFORCEMENT AND COMPLIANCE ASSURANCE ROUNDTABLE 11 (U.S. Environmental Protection
Agency, pub., Oct. 1996). It has also been suggested that EPA maintain an up-to-date, user-friendly
guide on the NEPA process. Id. at 19.
The CEQ regulations also provide for the participation of Tribes, as well as state and local
government agencies, throughout the EIS process. Where the effects of a proposed action are on a
reservation, a Tribe may, by agreement with the lead agency, become a "cooperating agency;" state
and local agencies with special expertise in the environmental impacts at issue in the EIS may also
become cooperating agencies. 40 C.F.R. § 1508.5. The role of a cooperating agency may include
participating in the scoping process, as well as developing information and preparing environmental
analyses, including portions of the EIS. 40 C.F.R. § 1501.6. In a 1999 memorandum, CEQ "urges
agencies to more actively solicit in the future the participation of state, tribal, and local agencies" as
cooperating agencies in implementing NEPA's EIS process. Memorandum from George T.
Frampton, Jr., Council on Environmental Quality, Designation of Non-Federal Agencies to be
Cooperating Agencies in Implementing the Procedural Requirements of the National
Environmental Policy Act (July 28, 1999) [hereinafter "1999 CEQ Memorandum"].
B. Determining Whether to Prepare an Environmental Impact Statement
1. Generally
When a federal agency is considering a proposed action, it must determine whether the
action requires preparation of an EIS. 40 C.F.R. Part 1501. As noted above, NEPA requires
preparation of a "detailed statement," or EIS, in connection with "proposals for legislation and
other major Federal actions significantly affecting the quality of the human environment." 42 U.S.C.
§ 4332(2)(C). Major federal actions are "actions with effects that may be major and which are
potentially subject to Federal control and responsibility." 40 C.F.R. § 1508.18. Federal actions for
purposes of NEPA can generally be categorized as policies, plans, programs, or projects. 40 C.F.R.
§1508.18(b).
73
-------
The term "significantly" as used in NEPA requires an examination of both the context for
and the intensity, or severity, of the impacts. 40 C.F.R. § 1508.27. Human environment "shall be
interpreted comprehensively to include the natural and physical environment and the relationship of
people with that environment." 40 C.F.R. § 1508.14. When an EIS is prepared "and social and
economic or social and natural or physical environmental effects are interrelated," then the EIS
must discuss all of these effects on the human environment. Id. These definitions are discussed in
more detail in Part H.C.2.C., below.
Each federal agency is directed by the CEQ regulations to review its own regulations to
determine whether a proposed action is either one that normally requires an EIS, or one that
normally does not require either an EIS or an Environmental Assessment. 40 C.F.R. § 1501.4(a). If
the action falls within the former category, the agency should begin the process of preparing an EIS.
If the action falls within the set of categorical exclusions, the agency may simply proceed with the
action. 40 C.F.R. §§ 1507.3(b)(2)(ii), 1508.4. If the proposed action is neither one that normally
requires an EIS nor one that is normally excluded from NEPA review, the agency should prepare an
Environmental Assessment to determine whether an EIS is required. 40 C.F.R. § 1501.4(b). The
activities for which EPA typically prepares an EIS, as well as the categories of activity that are
generally excluded from EIS preparation, are set forth in EPA's NEPA regulations. See 40 C.F.R.
Part 6. As discussed earlier, EPA has authority to subject decisions to the EIS process voluntarily.
•2. Preparation of an Environmental Assessment
An Environmental Assessment is "a concise public document" that briefly provides
"sufficient evidence and analysis for determining whether to prepare an environmental impact
statement or a finding of no significant impact." 40 C.F.R. § 1508.9(a). Ultimately, the EA is used
to determine whether preparation of an EIS is required. 40 C.F.R. § 1501.4(c). An EA can aid in an
agency's compliance with NEPA when an EIS is not necessary, and an EA can also facilitate
preparation of an EIS when one is required. Id. The CEQ regulations provide that an agency may
prepare an HA. on any action at any time to assist agency planning and decision-making. 40 C.F.R. §
1501.3(b).
An EA must include brief discussions of the need for the proposed action, of alternatives,
and of the environmental impacts of the proposed action and alternatives, as well as a list of
agencies and persons consulted. 40 C.F.R. § 1508.9(b). If an agency determines on the basis of the
EA not to prepare an EIS, the agency must make a finding of no significant impact (FONSI). 40
C.F.R. § 1501.4(e). A FONSI briefly sets forth the reasons why an action not otherwise excluded
from NEPA substantive review will not have a significant effect on the human environment. The
FONSI must include the EA or a summary of it, and must note any other related environmental
documents. 40 C.F.R. § 1508.13. The FONSI must be made available to the affected public, and in
some instances it must be made available for public review before the agency makes a final
determination whether to prepare an EIS and before the action may begin. 40 C.F.R. § 1501.4(e);
40 C.F.R. § 6.400(d).
Because the EA must include a brief discussion of the environmental impacts of a proposed
action and its alternatives, preparation of an EA provides an early means of identifying affected
communities of color and low-income communities and potential disproportionate impacts on those
74
-------
communities resulting from the proposed action. EPA can use the F-A process to explore
environmental justice concerns, an analysis of which will inform the agency's decision on whether a
full EIS must be prepared. Also, because the EA process is simpler than the EIS process and can be
invoked at any time, EPA can use it as a flexible means of ascertaining possible environmental
justice implications of agency decisions.
EPA's environmental justice guidance recommends the use of an EA to analyze and record
potential environmental justice considerations. If the initial environmental justice screening analysis
identifies environmental justice concerns, then the agency is to conduct a small-scale scoping
analysis and to solicit community involvement and input, as well as to develop alternatives and
mitigation measures. EPA EJ Guidance at 3.2.3.1. Importantly, the guidance further indicates that
the EA should contain "a comparative socioeconomic analysis that is scaled and tailored" to
evaluate the potential effects to the community. Id. See also the CEQ EJ Guidance at 8-9. Socio-
economic analyses are discussed in Part H.C.2.C., below. Even if the agency's initial environmental
justice screening analysis results in no environmental justice concerns, the analysis is still to be
recorded, and the guidance recommends that the agency re-examine the screening conditions
throughout the NEPA process. EPA EJ Guidance at 3.2.3.1. EPA's guidance also provides that, to
the extent practicable, EIS-Hke public participation is to be pursued in connection with an EA when
social and economic impacts will be, or are perceived to be, substantial, even in the absence of
"significant" impacts. EPA EJ Guidance at 4.2.
C. Preparation of the Environmental Impact Statement
1. Scoping
Upon determining that a proposed action may significantly affect the environment, a federal
agency must prepare an EIS. This process begins with scoping — "an early and open process for
determining the scope of issues to be addressed and for identifying the significant issues related to a
proposed action." 40 C.F.R. § 1501.7. To determine the scope of an EIS, an agency must consider
three types of impacts: direct, indirect, and cumulative. 40 C.F.R. § 1508.25.
EPA, by way of the scoping process, can begin to engage affected communities in the
NEPA process if this has not already been done. It would be difficult to assess how a proposed
action might affect communities of color and low-income communities without communicating
directly with community residents. Both the CEQ and EPA environmental justice guidance
documents emphasize the importance of determining whether an area affected by the proposed
action may include people of color and low-income communities, and seeking the input of these
communities in the scoping process. Both guidances discuss in detail steps for enhancing traditional
public participation tools to involve affected communities. See CEQ EJ Guidance at 11-12; EPA EJ
Guidance at 3.2, 4.1.
2. Preparation of the Draft Environmental Impact Statement
An EIS must contain a "full and fair discussion of significant environmental impacts" and
inform both decision-makers and the public of the reasonable alternatives that would avoid or
minimize adverse impacts or enhance the quality of the human environment. 40 C.F.R. § 1502.1
75
-------
The EIS is an analytic document that discusses impacts in proportion to their significance. The EIS
must state how the alternatives it considers, as well as the decisions based upon the document, will
or will not achieve the requirements of NEPA. 40 C.F.R. § 1502.2.
The EIS for a proposed agency action is typically prepared in two stages, draft and final. 40
C.F.R. § 1502.9. An agency should begin preparation of an EIS as near as possible to the time that
the agency is developing or is presented with a proposal, and early enough so that the EIS can
contribute to the decision-making process, rather than be used to rationalize or justify decisions
already made. 40 C.F.R. § 1502.5. EISs are to be prepared using an interdisciplinary approach that
ensures the integrated use of the natural and social sciences and the natural design arts. 40 C.F.R. §
1502.6. EISs must also be prepared using plain language so that they can be easily understood. 40
C.F.R. § 1502.8. EPA requires at least one public meeting on all draft EISs. 40 C.F.R. § 6.400(c).
The portions of the EIS discussing alternatives to the proposed action, the affected
environment, and environmental consequences are of special importance to the NEPA process.
Moreover, as discussed below, each of these sections also has key environmental justice
implications.
a.
Alternatives
The section of the EIS discussing alternatives to the proposed action is the "heart" of the
EIS. 40 C.F.R. § 1502.14. This section presents the environmental impacts of the proposal and the
alternatives in comparative form, "sharply defining the issues and providing a clear basis for choice
among options by the decision maker and the public." Id. The discussion of alternatives must
include the proposed action, as well as the alternative of no action. Id. Appropriate mitigation
measures are to be included if they are not already included in the proposed action or the
alternatives. Id. The CEQ regulations define mitigation to include:
• avoiding the impact altogether by not taking a certain action or parts of an action;
• minimizing impacts by limiting the degree or magnitude of the action and its
implementation;
• rectifying the impact by repairing, rehabilitating, or restoring the affected
environment;
• reducing or eliminating the impact over time by preservation and maintenance
operations during the life of the action; and
• compensating for the impact by replacing or providing substitute resources or
environments.
40 C.F.R. § 1508.20.
EPA can advance environmental justice goals in the preparation of an EIS by (1) ensuring
that affected communities of color and low-income communities play a role in the development of
alternatives and possible mitigation measures, and (2) developing mitigation measures that address
significant adverse effects on these communities. EPA can also present alternatives and mitigation
measures in the EIS in a way that makes clear any disproportionately high and adverse effects likely
to result from a given alternative. Both the CEQ and EPA guidance documents discuss the
76
-------
importance of the participation of affected communities in developing and commenting on possible
alternatives to the proposed action and mitigation measures. CEQ EJ Guidance at 15-16; EPA EJ
Guidance at 3.2.5, 3.2.7. The EPA guidance lists examples of potential mitigation measures for
addressing disproportionately high and adverse effects and notes other steps to ensure that
mitigation measures are implemented, including establishing the mitigation measure as a permit
condition or requiring monitoring and reporting. EPA EJ Guidance at 3.2.7.
b.
Affected Environment
Another requirement of the EIS is that it "succinctly" describe the environment of the area
to be affected or created by the alternatives at issue. 40 C.F.R. § 1502.15. Identifying the affected
environment is crucial for environmental justice purposes. This requirement provides EPA with
authority to ascertain more precisely the communities of color and low-income communities that are
likely to be affected by the proposed action. EPA can seek to identify the particular ways in which
affected communities use resources and interact with the environment.
The CEQ environmental justice guidance notes that agencies should identify a geographic
scale for which demographic data on the potential impact area will be obtained. CEQ EJ Guidance
at 14. Geographic distribution by race, ethnicity, and income, as well as a delineation of tribal land
and resources, should be considered. Id. The CEQ guidance emphasizes the importance of
recognizing that communities of color, low-income communities, and Tribes may experience
different impacts than other communities — for example, from subsistence wildlife and plant
consumption or from use of well water in rural areas. Id.
Building upon the CEQ environmental justice guidance, EPA's environmental justice
guidance emphasizes the need, early in either the EA or EIS process, for the agency to identify the
physical environment and all natural resources that could be affected by the proposed action or by
alternative actions. EPA EJ Guidance at 3.2.4. The guidance states that the agency is to use "all
means available" to identify impacts on particular resources that will adversely and
disproportionately affect communities or color or low-income communities. The agency is to
provide affected communities with technical assistance to ensure a thorough understanding of the
proposed action and to allow for meaningful public participation and input. Id.
c. Environmental Consequences
The scientific and analytic basis for the alternatives section of the EIS is provided in the
section on environmental consequences. 40 C.F.R. § 1502.16. This section discusses the
environmental impacts of the alternatives, any adverse environmental effects that cannot be avoided
should the proposal be implemented, the relationship between short-term uses of man's
environment and the maintenance and enhancement of long-term productivity, and any kreversible
or irretrievable commitments of resources that would be involved in the proposal should it be
implemented. Id.
As noted earlier, the EIS process applies to "major Federal actions significantly affecting the
quality of the human environment." 42 U.S.C. § 4332(2)(C). Under the CEQ regulations, the
77
-------
environmental consequences discussion must address a number of specific factors. The following
have particular relevance to environmental justice concerns:
• direct effects and their significance;
• indirect effects and their significance;
• the environmental effects of alternatives;
• natural or depletable resource requirements and conservation potential of various
alternatives and mitigation measures;
• urban quality, historic and cultural resources, and the design of the built
environment, including the reuse and conservation potential of various alternatives
and mitigation measures; and
• means to mitigate adverse environmental impacts (if hot fully covered in the
alternatives section of the EIS).
40 C.F.R. § 1502.14.
The CEQ regulations define "direct" effects as those that are caused by the action and occur
at the same time and place. "Indirect" effects are also caused by the action and are later in time or
farther removed in distance, but remain reasonably foreseeable. 40 C.F.R. § 1508.8. Indirect effects
may include growth-inducing effects and other effects related to induced changes in land use
patterns, population density, increased tourist use of cultural resources, and growth rate. Id.
Indirect effects also include effects on air, water, and other natural systems — including ecosystems.
Id.
Cumulative Impacts. According to the CEQ regulations, "effects" can be "ecological. . .
aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative." 40
C.F.R. § 1508.8. The regulations define "cumulative impact" as "the impact on the envkonment
which results from the incremental impact of the action when added to other past, present, and
reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person
undertakes such other actions. Cumulative impacts can result from individually minor but
collectively significant actions taking place over a period of time." 40 C.F.R. § 1508.7. Thus, where
EPA does prepare an EIS, the agency has authority to consider fully the adverse environmental and
health impacts of a proposed activity on akeady overburdened communities. See generally DANIEL R.
MANDELKER, NEPA LAW AND LITIGATION 10.12 (1999) [hereinafter "Mandelker"] (discussion of
case law addressing consideration of cumulative impacts):
The Council on Environmental Quality has provided a guidance document on addressing
cumulative impacts that emphasizes the importance of analyzing such impacts during all phases of
the EIS process, from scoping through the development of alternatives and mitigation measures.
Council on Environmental Quality, Considering Cumulative Effects Under the National
Envkonmental Policy Act (January 1997), available at
http://ceq.eh.doe.gov/nepa/ccenepa/ccenepa.htm (last visited Nov. 13, 2001). The guidance states
the general principle that "additional effects contributed by actions unrelated to the proposed action
must be included in the analysis of cumulative effects." Id. at Table 1-2. The guidance also a lists a
number of examples of cumulative effects issues that could arise in a proposed activity, including:
social, economic or cultural effects on low-income communities or communities of color resulting
78
-------
from ongoing development; long-term containment or disposal of hazardous wastes; and air
emissions resulting in degradation of regional air quality. Id. at Table 2-1.
EPA's guidance underlines the importance of considering cumulative impacts, stating that
"analysts need to place special emphasis on other sources of environmental stress within the
region," including the number and concentration of permitted and non-permitted sources of
pollution, the presence of toxic pollutants with high exposure potential, and other factors. EPA EJ
Guidance at 2.2.2.
Social and Economic Impacts. Social and economic impacts also are included in the CEQ
regulatory definition of effects. 40 C.F.R. § 1508.8. While the regulations state that economic or
social effects alone are not intended to require an EIS, when an EIS is prepared and "economic or
social and natural or physical environmental effects are interrelated, then the [EIS] will discuss all of
these effects on the human environment." 40 C.F.R. § 1508.14. This provision, in conjunction with
the requirements to consider cumulative and indirect impacts, creates an opportunity for the EIS to
consider a broad range of impacts on overburdened communities, provided those impacts are
related to a proposed change in the physical environment. See generally Mandelker at 8.07[6]
(discussion of case law addressing consideration of cumulative impacts). As a result of NEPA's
broad public participation provisions, this analysis can be fully informed by the comments of the
affected communities.
The EPA environmental justice guidance discusses the possible need to use cultural or social
impact assessments as tools for analyzing specific socio-economic impacts to communities that
share a common cultural or spiritual environment. EPA EJ Guidance at 5.3. To assess accurately
the potential disproportionately high and adverse effects to communities of color and low-income
communities and account for these effects, the guidance notes that EIS analysts may be required to
move beyond standard socio-economic modeling and consider such issues as subsistence living,
treaty-protected resources, cultural use of natural resources, sacred sites, dependence on public
transportation, community cohesion, and a relatively unskilled labor base. Id.
3.
Public Comment Period
After completing the draft EIS, the agency must obtain comments from relevant federal
agencies. 40 C.F.R. § 1503.1. The agency must also request comments from relevant state or local
agencies and Tribes. As noted earlier, CEQ has urged federal agencies to seek out the participation
of state, local, and tribal governments as "cooperating agencies." 1999 CEQ Memorandum. CEQ
regulations also require public comment on the draft EIS; agencies must "affirmatively solicit"
comments from persons or organizations who may be interested or affected. 40 C.F.R. § 1503.1.
At least 45 days is usually provided for public comment. 40 C.F.R. § 1506.10(c). EPA thus has
explicit authority to ensure that it receives input from communities of color and low-income
communities affected by the action. ,
79
-------
4. Preparation of Final Environmental Impact Statement
and Issuance of Decision
An agency preparing a final EIS is required to assess and consider comments both
individually and collectively, and the agency must respond to them. 40 C.F.R. § 1503.4. Although it
is not required, an agency may request comments on a final EIS before issuing a final decision. 40
C.F.R. § 1503.1(b). Other agencies or persons are free to make comments, in any event. Id. When
the federal agency prepares a final EIS, it issues a record of decision (ROD). 40 C.F.R. § 1505.2.
The ROD must state die decision and identify the alternatives, specifying which were considered to
be environmentally preferable. The-agency also must state whether all practicable means to avoid or
minimize environmental harm from the alternative have been adopted, and if not, why. A
monitoring and enforcement program must be adopted and summarized where applicable for any
mitigation. 40 C.F.R. § 1505.2.
Final agency action that incorporates the nation's environmental policy is of course the goal
of the entire administrative process. The CEQ regulations explain that "NEPA's purpose is not to
generate paperwork — even excellent paperwork — but to foster excellent action." 40 C.F.R. §
1500.1(c). This is particularly so in the environmental justice context. The goal is not simply to
involve affected communities in the NEPA process and to conduct environmental justice analyses,
but to factor that involvement and those analyses into decision-making.
The CEQ guidance addresses this goal by stating that when disproportionately high and
adverse effects on communities of color, low-income communities, and Tribes have been identified
as a result of the proposed action or its alternatives, the distribution and magnitude of the
disproportionate impacts in these communities should be a factor in the agency's determination of
the environmentally preferable alternative. CEQ EJ Guidance at 15. When weighing this factor, the
agency should also consider the views of the affected communities. Id.
The CEQ guidance also states that disproportionately high and adverse effects should be
among the factors discussed by the agency in its ROD. Id. When the agency discusses whether all
practicable means to avoid or mitigate environmental and other interrelated effects were adopted,
the discussion should address these effects as well. Id. These factors should be linked to any
monitoring and enforcement program discussed in the ROD. Id.
EPA's guidance also provides that EISs and RODs should document the analyses used to
identify the presence or absence of disproportionately high and adverse effects and present the
results of those analyses. EPA EJ Guidance at 1.2. The ROD should specifically document
whether the proposed action will or will not have a disproportionately high and adverse effect on
communities of color or low-income communities and describe any mitigation that will be
undertaken to avoid or minimize such effects. Id. The ROD should also discuss all alternatives and
mitigation options that were analyzed and explain what role environmental justice considerations
pkyed in the decision. EPA EJ Guidance at 3.2.8.
80
-------
III. OPPORTUNITIES FOR EPA TO PROMOTE ENVIRONMENTAL JUSTICE
PURSUANT TO SECTION 309 OF THE CLEAN AIR ACT
Pursuant to Section 309 of the Clean Ak Act, EPA is charged with reviewing and
commenting publicly on the proposed actions of other federal agencies. 42 U.S.C. § 7609(a). If
EPA determines that the proposed action of another federal agency is "unsatisfactory from the
standpoint of public health or welfare or environmental quality," EPA is directed to publish this
determination and refer the matter to CEQ. 42 U.S.C. § 7609(b). These two tools - the power to
review and comment and the power to issue referrals to the CEQ - represent important
mechanisms by which EPA can promote environmental justice under NEPA. EPA has issued a ,
guidance document to help ensure that the Section 309 review and comment procedure fully
analyzes effects on communities of color and low-income communities. U.S. EPA Office of
Federal Activities, EPA Guidance for Consideration of Environmental Justice in Clean Ak Act
Section 309 Reviews (July 1999) [hereinafter "EPA Section 309 EJ Guidance"], available at
http://es.epa.gov/oeca/ofa/ej_nepa.html (last visited Nov. 13, 2001).
A. EPA Review and Comment
EPA is to review and comment publicly on the envkonmental impacts of federal activities,
including those actions for which EISs are prepared. 40 C.F.R. § 1504.1 (b).
EPA's Section 309 guidance emphasizes that the agency should participate in the NEPA
process "at the earliest stage of project development and to the fullest extent practicable." EPA
Section 309 EJ Guidance at 5. At the scoping stage, the guidance recommends that EPA's level of
involvement be decided on a case-by-case basis, depending on the degree of existing envkonmental
justice concerns. Id. at 6.
According to the guidance, all EISs filed with the agency should be reviewed for "adequate
envkonmental justice content." EPA Section 309 EJ Guidance at 6. Early in the review process, the
EPA review should identify potentially affected communities of color or low-income communities,
as well as the natural resources that are potentially affected. Id. at 8. The reviewer should determine
whether the EIS reflects a comprehensive assessment of the types of impacts that the proposed
action may impose upon human beings and natural resources. Id. If the potential for adverse
effects has been identified, the agency should analyze how health and envkonmental effects are
distributed within the affected community. Id. at 9. Before commenting on an agency proposal, the
EPA reviewer should determine how the agency determined whether an impact is or is not
disproportionately high, and the rationale behind the proposal. Id.
The EPA guidance also dkects the reviewer to evaluate the envkonmental justice issues
identified in the alternatives and develop mitigation measures to address potential disproportionately
high and adverse effects on communities of color and low-income communities. Id. at 10.
With regard to public participation, the EPA reviewer is dkected to note whether the draft
EIS reflects a concerted effort to elicit participation of communities of color and low-income
communities, and whether the draft EIS incorporated public input into analysis of
disproportionately high and adverse impacts, alternatives, and mitigation measures. EPA Section
81
-------
309 EJ Guidance at 7. EPA suggests that a federal agency may need to "initiate innovative
approaches to overcome linguistic, institutional, cultural, economic, historical or other potential
barriers" to participation, and cites to useful strategies contained in the CEQ EJ Guidance. Id.
EPA has established a system for rating the environmental impact of a proposed agency
action and the adequacy of the EIS. The EPA Section 309 guidance provides that environmental
justice should be considered when the EPA reviewer assigns ratings. Id. at 11. EPA's rating system
first rates the environmental impact of the proposed action. According to the EPA guidance, the
reviewer's rating should incorporate environmental justice concerns when (1) communities of color
or low-income populations, or Tribes, are present in the affected area; and (2) there may be
disproportionately high and adverse human health or environmental effects on these communities.
Id. at 11. The rating system next evaluates the adequacy of the EIS. According to the EPA
guidance, the reviewer's rating should incorporate environmental justice concerns when (1) the EIS
fails to provide sufficient information to address adequately whether people of .color or low-income
populations are disproportionately affected; or (2) the EIS fails to draw a conclusion regarding the
significance of a potential environmental justice impact. Id.
B. Referral to CEQ
The EPA Administrator must make a referral to CEQ of a matter that is "unsatisfactory
from the standpoint of public health or welfare or environmental quality." 40 C.F.R. § 1504/1.
Referrals are to be made only after concerted and timely, but ultimately unsuccessful, attempts to
resolve differences with the agency that has proposed the action. Id. A referral consists of a letter
to CEQ requesting that no action be taken to implement the matter until CEQ acts upon it, as well '
as "a statement supported by factual evidence leading to the conclusion that the matter is
unsatisfactory from the standpoint of public health or welfare or environmental quality." 40 C.F.R.
§ 1504.3. The CEQ regulations establish the process by which the federal agency proposing the
action can respond to the referral, as well the procedure by which CEQ must ultimately respond to
the referral. Id.
In determining what environmental objections to refer to CEQ, EPA should weigh potential
adverse environmental impacts, with consideration of the following:
• possible violation of national environmental standards or policies;
• severity;
• geographic scope;
• duration;
• importance as precedents; and
• availability of environmentally preferable alternatives.
40 C.F.R. § 1504.2. EPA's Section 309 Guidance provides no specific discussion of when
environmental concerns will require referral of a matter to the CEQ. Nevertheless, the broad
statutory language authorizing referral, together with the far-reaching goals of the Act, give EPA
ample room to consider environmental justice issues when making referral decisions.
82
-------
IV. BEYOND THE ENVIRONMENTAL IMPACT STATEMENT: ADDITIONAL
AUTHORITIES UNDER WHICH EPA CAN INCORPORATE
ENVIRONMENTAL JUSTICE INTO EPA DECISION-MAKING
NEPA provides authority for implementing the nation's environmental policy that reaches
far beyond the preparation of EISs and EAs. Although courts historically have refused to enforce
against federal agencies any NEPA requirements other than the EIS administrative procedure, the
statute makes clear that other opportunities exist for the agency to implement the national
environmental policy. See generally ENVIRONMENTAL LAW INSTITUTE, REDISCOVERING THE
NATIONAL ENVIRONMENTAL POLICY ACT: BACK TO THE FUTURE (1995). These textual provisions
have special importance for furthering environmental justice goals, as discussed below.
A. Interpreting and Administering the Laws in Accordance with NEPA
Section 102(1) of NEPA directs that "to the fullest extent possible" the "policies, regulations,
and public laws of the United States shaft b'e interpreted and administered in accordance with the
policies set forth in [NEPA]." 42 U.S.C. § 4332(1) (emphases added). Read in conjunction with
Section 105 of NEPA, which clarifies that NEPA's policies and goals are "supplementary to those
set forth in existing authorizations of Federal agencies," Section 102(1) establishes a substantive
grant of authority for EPA to interpret and administer the nation's environmental policy.
As discussed above, the presidential memorandum accompanying Executive Order 12898
instructs federal agencies to incorporate envkonmental justice concerns into their decision-making
under NEPA. This mandate is typically carried out by way of the EIS administrative procedure
established by Section 102(2)(C). However, the Section 102(1) directive to interpret and administer
the law in accordance with the policies of NEPA provides another mechanism by which EPA can
promote environmental justice under the Act. Indeed, unlike the EIS administrative procedure, the
use of Section 102(1) is not limited to actions likely to have a significant effect on the environment.
Instead, Section 102(1) applies to the fullest extent possible to the interpretation and administration
of all policies, regulations, and public laws.
Section 102(1) is critical to any analysis of EPA's authority to promote environmental justice
pursuant to NEPA, because it requires that those environmental justice goals inherent in the
national environmental policy be promoted through the laws and regulations for which the EPA
possesses implementing authority. Thus EPA at the very least possesses the authority to incorporate
environmental justice considerations into the administration of envkonmental laws in ckcumstances
where the EIS process is not triggered — for example, where the proposed action is not significant as
defined in NEPA, or where preparation of an EIS is excused by the functional equivalence doctrine,
a Congressional exemption, or otherwise.
As discussed throughout this report, federal envkonmental laws provide EPA considerable
authority to integrate envkonmental justice consideration into its decisions — authority derived from
both general statutory goals of protecting health and the envkonment and specific provisions
governing permitting, standard setting, and other agency activities. NEPA Section 102(1) provides
further support for interpreting and administering these statutes to reflect the envkonmental justice
aims inherent in the national envkonmental policy. In doing so, EPA can use the same tools — such
83
-------
as encouraging broad participation by affected communities and conducting full analyses of
disproportionate impacts — that inform environmental justice considerations under the NEPA
administrative process. Additionally, EPA can adopt guidelines or review procedures to ensure that
laws under the agency's jurisdiction are being implemented and administered in accordance with the
national environmental policy and its environmental justice components. EPA Region 2 has created
an "Interim Environmental Justice Policy" which incorporates environmental justice considerations
into the management decisions and actions of that office. U.S. EPA Region 2, Interim
Environmental Justice Policy (Dec. 2000).
B. Authority Deriving from Other Agency Responsibilities
Section 102(2) of NEPA requires federal agencies, to "the fullest extent possible," to
comply with a number of specific requirements in addition to the EIS requirement of Section
102(2)(C). This duty is also stated in the CEQ regulations. 40 C.F.R. § 1507.2. Most of these
requirements, as discussed below, provide additional mechanisms by which EPA can advance
environmental justice aims under the Act.
Section 102(2)(A) directs all federal agencies to "utilize a systematic, interdisciplinary
approach which will insure the integrated use of the natural and social sciences and the
environmental design arts in planning and in decision making which may have an impact on man's
environment." 42 U.S.C. § 102(2)(A). The use of an interdisciplinary approach and reference to the
social sciences are hallmarks of environmental justice analyses. This provision, then, provides EPA
with authority to use such tools in connection with all agency planning and decision-making that
may have an impact on the environment - a far broader scope of activity than that covered by
NEPA's EIS requirements.
Section 102(2) (B) requires federal agencies to "identify and develop methods and
procedures, in consultation with [CEQ], which will insure that presently unquantified environmental
amenities and values may be given appropriate consideration in decision making along with
economic and technical considerations." 42 U.S.C. § 102(2)(B). Certain "environmental amenities
and values" associated with communities of color, low-income communities, and Tribes — such as
fish relied upon for subsistence, sacred sites of great importance to Tribes, etc. — could benefit from
the identification of methods and procedures that would ensure that they are appropriately
considered in agency decision-making. This provision affords EPA an opportunity for doing so.
Section 102(2) (E) requires federal agencies to "study, develop, and describe appropriate
alternatives to recommended courses of action in any proposal which involves unresolved conflicts
concerning alternative uses of available resources." 42 U.S.C. § 102(2)(E). The CEQ regulations
state that Sectionl02(2)(E) "extends to all such proposals, not just the more limited scope of section
102(2)(C)(iii) where the discussion of alternatives is confined to impact statements." 40 C.F.R. §
1507.2(d).
This provision is important in that it expands consideration of alternatives to circumstances
in which an EIS or EA will not be prepared, but a disproportionately high and adverse human
health or environmental impact on communities of color or low-income communities may exist.
84
-------
Section 102(2) (G) provides that federal agencies must "make available to States, counties,
municipalities, institutions, and individuals, advice and information useful in restoring, maintaining,
and enhancing the quality of the environment." 42 U.S.C. § 102(2)(G). The federal environmental'
laws implemented by EPA provide considerable authority for the agency to disseminate information
to the public. This NEPA,provision bolsters the agency's authority to enhance community capacity
to identify and address environmental justice concerns.
Section 102(2)(H) requires federal agencies to "initiate and utilize ecological information in
the planning and development of resource-oriented projects." 42 U.S.C. § 102(2)(H). In light of the
broad policy goals of NEPA, read in conjunction with Executive Order 12898, this provision may
provide a means of incorporating a greater awareness of how communities of color and low-income
communities rely on natural resources in the planning and development of projects that could affect
those resources.
85
-------
86
-------
CHAPTER 10
FEDERAL WATER POLLUTION CONTROL ACT
("Clean Water Act" or «CWA")
33 U.S.C. ^ 1251-1387
The Federal Water Pollution Control Act (Clean Water Act or CWA) is the main federal
statute governing the quality of surface water — rivers and streams - throughout the United States.
It establishes national, technology-based standards for municipal waste treatment and many
categories of industrial "point source" discharges (discharges from fixed sources such as pipes and
ditches); requires states and, in some cases, Tribes to enact and implement water quality standards to
attain designated water-body uses; addresses toxic water pollutants; arid regulates dredge-and-fill
activity and wetlands. It also applies these requirements to federal facilities, such as military
installations or Department of Energy sites, which can have disproportionate impacts on the specific
communities where they are located.
The Act's broad scope brings a number of environmental justice issues within its reach, from
protection of drinking water supplies, to reducing toxic exposure, to protecting fisheries, wetlands,
and wildlife habitat. Further, the Act's stated goal of eliminating all pollutant discharges, its well-
established permitting programs, and its stringent enforcement provisions make it potentially a very
effective tool that EPA can employ to address environmental justice concerns. This chapter offers a
review of CWA statutory authorities for advancing environmental justice, and seeks to provide a
basis for further public discussion of the specific opportunities for regulatory action discussed here.
Part I of this chapter analyzes some of the Act's policy goals, including a national
"zero-discharge" goal for both conventional and toxic pollutants. Part II discusses EPA's standard
setting and rule-making authority under the Act, which includes technology-based effluent
limitations, water quality standards for receiving water bodies, toxic effluent controls, and design and
management standards for land-based application of sewage sludge. Part III discusses EPA's
permitting authority, focusing on discharge permits under the National Pollutant Discharge
Elimination System (NPDES) and dredge-and-fill permits under Section 404. Part IV addresses
EPA's delegation of CWA program authority to state and tribal governments, again focusing on
NPDES and Section 404. Finally, Part V discusses the Act's enforcement provisions; Part VI
addresses its information gathering provisions; and Part VII outlines financial assistance provisions.
I.
GENERAL PROVISIONS
The Clean Water Act reflects Congress' clear intent first to control and then to eliminate all
pollutant discharges into U.S. waters. Its very first provision, Section 101(a)(l), declares that "it is
the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985."
33 U.S.C. § 1251 (a)(l). This "zero-discharge" goal creates a strong presumption that affects
interpretation and implementation of all other sections of the Act, from setting of discharge
standards and permit limits to enforcement decisions. As a first step toward the zero-discharge goal,
87
-------
the Act establishes an "interim goal" of "water quality which provides for the protection and
propagation of fish, shellfish, and wildlife and provides for recreation in and on the water" — the so-
called "fishable/swimmable" standard that was to be attained by July 1, 1983. 33 U.S.C. §
1251(a)(2).
Similarly, Section 101(a)(3) states, in equally clear language, that "it is the national policy
that the discharge of toxic pollutants in toxic amounts be prohibited." 33 U.S.C. § 1251 (a)(3). Both
of these provisions are policy statements, and thus are subject to the complex framework established
by the rest of the Act and discussed below. But taken together, they suggest that in certain
circumstances, EPA may have substantial leeway to consider and to act upon environmental justice
issues. In particular, where there is scientific or factual uncertainty about a decision's impact on low-
income communities and communities of color, the agency could pursue the statutory goals by
exercising its discretion in favor of reducing or eliminating pollutant discharges wherever possible.
In conjunction with specific authorities under the Act, particularly its strict requirements for toxics,
the zero-discharge provisions could provide additional support for complete bans on the discharge
of specific substances or on discharges at specific sites.
The goals and policy section also contains broad language favoring public participation.
Section 101(e) provides that "[p]ublic participation in the development, revision, and enforcement
of any regulation, standard, effluent limitation, plan, or program established by the Administrator or
any State under this chapter shall be provided for, encouraged, and assisted by the Administrator
and the States." 33 U.S.C. § 1251(e). More than a simple declaration, the section goes on to provide
that "[t]he Administrator, in cooperation with the States, shall develop and publish regulations
specifying minimum guidelines for public participation in such processes." Id.; see 40 C.F.R. Part 25.
Thus, the Act provides EPA clear statutory authority to develop strong public participation
programs. As it has done with other statutes, such as the Resource Conservation and Recovery Act,
the agency can use this general authority to continue to tailor its existing public participation rule-
making and guidance efforts to the specific needs of low-income communities and communities of
color. This would be particularly useful during rule-making procedures, the permitting process, and
other key decision points in the CWA regime.
II. STANDARD SETTING/RULE-MAKING
Consistent with the zero-discharge goal, the Clean Water Act states simply that "the
discharge of any pollutant by any person shall be unlawful" unless it complies with the specific
requirements of the statute. 33 U.S.C. § 1311 (a). These requirements include multiple layers of
standards, primarily the technology-based standards mandated by Section 301 and developed by
EPA for specific categories of point source discharges. In addition, Sections 302 and 303 require
EPA and the states to develop water quality standards for discharges into specific water bodies
where technology standards alone are insufficient to preserve designated uses of the water body;
these standards specifically allow for consideration of health and environmental issues, including
issues highly relevant for low-income communities and communities of color. Section 307 provides
additional standards and requirements for toxic pollutants, and Section 405 regulates the disposal of
sewage sludge.
88
-------
A. Technology-Based Standards
Section 301(b)(l) of the Act initially set a minimum standard of "secondary treatment" for
municipal waste treatment plants and "best practicable control technology" (BPT) for other existing
point sources, especially specified categories of industrial sources. 33 U.S.C. § 1311(b)(l)(A)-(B).
Section 301(b)(2) then establishes a standard of "best available technology" (BAT), and all sources
eventually are to be ratcheted up to this level or to "best conventional pollutant control technology"
(BCT), depending on the type of pollutant. 33 U.S.C. § 1311 (b)(2). Section 301(b)(2) also states
that BAT standards should be set at a level "which will result in reasonable further progress toward
the national goal of eliminating the discharge of all pollutants," an additional restatement of the
zero-discharge goal. Id. The resulting effluent limitations are to be reviewed, and if appropriate,
revised every five years. 33 U.S.C. § 1311(d).
In addition to the BPT "floor" for categories of existing sources, Section 301(b)(l)(C)
provides that point source discharges also must meet "any more stringent limitations, including those
necessary to meet water quality standards, treatment standards, or schedules of compliance,
established pursuant to any State law or regulations. . .or any other Federal law or regulation, or
required to implement any applicable water quality standard established pursuant to this chapter."
33 U.S.C. § 1311(b)(l)(C) (emphasis added). This broad incorporation of other requirements into
the standard could potentially be used to impose stricter limitations on individual point sources
where necessary to meet other requirements of law, such as Title VI of the federal Civil Rights Act
or comparable state laws.
Section 304 requires EPA to promulgate regulations that contain detailed guidelines for the
agency's adoption or revision of effluent limitations under Section 301, and to specify the factors
that will be used in determining the BPT, BAT, and BCT standards for different categories of point
sources. 33 U.S.C. § 1314(b). The guidelines must be reviewed annually, with public review and
comment. 33 U.S.C. § 1314(m). In addition to technical issues and cost, the relevant considerations
incorporated into the guidelines may include "such other factors as the Administrator deems
appropriate." 33 U.S.C. § 1314(b)(l)(B), (2)(B), & (4)(B). EPA thus could use this broad authority
to consider environmental justice issues as a factor when setting appropriate levels of technology-
based standards. In particular, where such standards allow or require some consideration of the costs
and benefits of a particular technology, this analysis could give weight to the benefits to heavily
impacted communities or sensitive populations.
The Act allows for variances from technology-based standards under certain conditions. In
issuing such variances, EPA also could take environmental justice factors into account. For example,
Section 301(g) allows the agency to modify the BAT requirements for certain "nonconventional"
pollutants, such as ammonia, chlorine, and iron, as long as the lower BPT standard is still met and
such modification will not interfere with the attainment or maintenance of that water
quality which shall assure protection of public water supplies, and the protection and
propagation of a balanced population of shellfish, fish, and wildlife, and . . .such
modification will not result in the discharge of pollutants in quantities which may
reasonably be anticipated to pose an unacceptable risk to human health or the
environment because of bioaccumulation, persistency in the environment, acute
89
-------
toxicity, chronic toxicity (including carcinogenicity, mutagenicity or teratogenicity),
or synergistic propensities.
33 U.S.C. § 1311(g)(2)(C). In addition, Section 301(h) allows the agency to modify the secondary
treatment requirement for municipal waste treatment plants that discharge into marine waters if "the
discharge of pollutants in accordance with such modified requirements will not interfere, alone or in
combination with pollutants from other sources, with the attainment or maintenance of that water quality
which assures protection of public water supplies and the protection and propagation of a
balanced, indigenous population of shellfish, fish, and wildlife." 33 U.S.C. § 1311 (h)(2) (emphasis
added).
The Act thus directs EPA to consider carefully the public health and ecosystem risks prior to
granting any such variances, including issues such as bioaccumulation, synergistic effects, and
cumulative impacts.
B. Water Quality Standards
Section 302(a) provides that "[w]henever, in the judgment of the Administrator. . .,
discharges of pollutants from a point source or group of point sources, with the application of
[effluent limitations based on best available technology], would interfere with the attainment or
maintenance of that water quality in a specific portion of the navigable waters which shall assure
protection of public health, public water supplies, agricultural and industrial uses, and the protection and propagation
of a balanced population of shellfish, fish and wildlife, and allow recreational activities in and on the water,
effluent limitations (including alternative effluent control strategies) for such point source or sources
shall be established which can reasonably be expected to contribute to the attainment or
maintenance of such water quality." 33 U.S.C. § 1312(a) (emphasis added).
Like Section 303, below, this section explicitly allows consideration of health and
environmental impacts, and authorizes an additional tier of water-quality-based effluent limitations
to be applied where technology-based standards alone are insufficient to attain specific stream uses-
in this case, the fishable/swimmable standard. Unlike Section 303, which is implemented with the
involvement of the states to attain uses designated by the states, Section 302 operates at the EPA
Administrator's discretion, following notice and a public hearing and some consideration of the
economic and social costs and benefits. 33 U.S.C. § 1312(b). Perhaps because of the procedural
hurdles, the uncertainties of cost-benefit analysis, and the historical prominence of state water-
quality standards, the agency has never yet invoked this section. See Memorandum from Gary S.
Guzy, U.S. EPA Office of General Counsel, EPA Statutory and Regulatory Authorities Under
Which Environmental Justice Issues May Be Addressed in Permitting (Dec. 1, 2000) [hereinafter
"OGC 2000 Memorandum"]; Richard Lazarus & Stephanie Tai, Integrating Environmental justice into
EPA PermittingAuthority, 26 ECOLOGYL.Q. 617, 639 (1999) [hereinafter "Lazarus & Tai"].
Nevertheless, under appropriate conditions, Section 302's express deference to "the judgment of the
Administrator" and mandate for protection of public health, water supplies, and fisheries could
provide an independent basis for setting standards and permit levels that address health and
environmental concerns prevalent in low-income communities or communities of color.
90
-------
Similarly, Section 303 (c) requites the states to establish or revise water quality standards
(WQS) by: (1) designating categories of uses, such as "industrial," or "fishable/swirnmable," for the
water bodies within their jurisdiction; and (2) developing appropriate water quality criteria for these
water bodies, "such as to protect the public health or welfare. . . .taking into consideration their use
and value for public water supplies, propagation of fish and wildlife, recreational purposes, and
• agricultural, industrial, and other purposes." 33 U.S.C. § 1313(c)(2)(A). The standards must be
reviewed every three years through a public hearing process, and submitted to EPA for approval. 33
U.S.C.. § 1313(c)(l). If a state fails to submit water quality standards, or if EPA determines they are
inconsistent with the requirements of the Act, EPA must promulgate standards for the state, also
through a public procedure. 33 U.S.C. § 1313(c)(4).
By their very nature, water quality standards are designed to address health and
environmental concerns on a site-specific, stream-by-stream basis. In both its WQS regulations and
its oversight of state triennial reviews, EPA could require states to obtain, consider, and address data
on disproportionate impacts to heavily burdened communities, sensitive populations, or subsistence
and traditional fisherpersons. It also could ensure that the public review process includes the
affected communities in these deliberations.
Further, Section 303 (d) requires the states to identify waters for which technology-based
effluent limitations alone have proven insufficient to meet the water quality standards. The state
must then establish "total maximum daily loads" (TMDLs) for regulated pollutants for each
impaired water body, and set the TMDLs "at a level necessary to implement the applicable water
quality standards with seasonal variations and a margin of safety which takes into account any lack
of knowledge concerning the relationship between effluent limitations and water quality." 33 U.S.C.
§ 1313(d)(l)(C). TMDLs must be submitted to EPA for approval, and if it does not approve, the
agency is authorized to promulgate such TMDLs as it considers necessary to meet the water quality
standards. 33 U.S.C. § 1313(d)(2). Once a TMDL is established, the state must incorporate it into
its water quality planning, which includes the ability to set effluent limitations on specific sources
(presumably both point and non-point) in order to meet the water quality standards. 33 U.S.C. §
1313(e); see generally OLIVER A. HOUCK, THE CLEAN WATER ACT TMDL PROGRAM: LAW, POLICY
AND IMPLEMENTATION (1999) [hereinafter "Houck book"].
Since the designation of water body uses and allocation of pollutant loads among sources
has "clearly distributional consequences," Lazarus & Tai at 640, many consider the TMDL program
to be a prime opportunity to advance environmental justice goals:
• Fkst, the designated water body uses could be broadened to include subsistence
fishing or tribal customs, while Section 303(c)'s "public health" language could take
into account the bioaccumulation of certain contaminants and the need to protect
the health of subsistence fishers, Tribes, and other highly exposed populations.
Lazarus & Tai at 639-40; OGC 2000 Memorandum at 7; Barry E. Hill & Nicholas
Targ, The Unk Between Protecting Natural Resources and the Issue of Environmental Justice, 20
B.C. ENVTL. AFP. L. REV. 1, 13-14 (2000) [hereinafter "Hill & Targ"]. EPA could
require states to address this site- and population-specific data in establishing
TMDLs and pollutant allocations within a watershed.
91
-------
• Second, Section 303(d)'s insistence on a "margin of safety" means that scientific or
factual uncertainty about whether a specific TMDL level is sufficient to meet water
quality standards is to be resolved in favor of limiting discharges to protect public
health and fisheries. 33 U.S.C. § 1313(d)(l)(C). This authority could be used to lower
a TMDL throughout an entire watershed, rather than reassigning allocations within a
watershed.
• Third, many TMDLs are being developed in highly collaborative public processes
that include state and federal agencies, local watershed councils or advisory groups,
and industry and citizen stakeholders. See, e.g., Environmental Law Institute, Putting
the Pieces Together: State Nonpoint Source Enforceable Mechanisms in Context
(2000). These ad hoc procedures could become another important forum for
including low-income communities and communities of color and taking account of
their concerns.
• Fourth, incorporation of TMDL allocations into effluent limitations and nonpoint
source control measures also will provide an opportunity to implement other
relevant EPA policies at the state level. These include an already existing
requirement that state water-body uses must meet the "fishable/swimmable"
standard unless the state can show that it is not attainable, 40 C.F.R. §§ 131.6(a),
131.100); as well as EPA's non-degradation policy requiring protection of "existing
uses," which could include tribal or subsistence fishing. See 40 C.F.R. § 131.12(a);
Lazarus & Tai at 640.
Current caselaw suggests that while EPA may not have a statutory mandate to consider
environmental justice when setting TMDLs, it retains discretion to do so. .In Dioxin/' Organochlorine
Center v. Clarke, 57 F.3d 1517 (9th Ck. 1995), the agency issued a TMDL for dioxin discharges into
the Columbia River based on a national average fish consumption figure of 6.5 grams per day.
Environmental groups challenged this assumption, arguing that EPA should have used the 150
gram-per-day figure typical of Northwest tribal populations. The Ninth Circuit upheld the agency's
calculation, agreeing that EPA was not required to protect "sub-populations" to the same degree as
the general population, and finding that its decision to apply a "lower yet adequate" health standard
to Native American populations was reasonable. 57 F.3d at 1524; see also Natural Resources Defense
Council v. EPA, 16 F.3d 1395 (4th Ck. 1993); Catherine A. O'Neill, Variable Justice: Environmental
Standards, Contaminated Fish, and Acceptable Risk to Native Peoples, 19 STAN. ENVTL. L.J. 3 (2000)
[hereinafter "O'Neill"]. But by the same token, the courts' clear deference to EPA's expertise on
this issue means that the agency is free to increase protection for these populations if it chooses.
EPA has in fact proposed new draft water quality criteria methodology revisions that would
allow for bioaccumulation, raise the default average fish consumption rate to 17.8 grams per day, set
a default rate of 86.3 grams per day for "subsistence fishers/minority anglers," and allow even
higher rates in specific cases based on local data. See Notice, Draft Water Criteria Methodology
Revisions, 63 Fed. Reg. 43,756, 43,762 (Aug. 14,1998); Hill & Targ at 17-19. These measures have
been criticized for thek continued reliance on quantitative risk assessment, see O'Neill at 57-64, but
they demonstrate EPA's discretion to adjust its working assumptions to address environmental
justice concerns.
92
-------
c.
Toxic Effluent Standards
The Clean Water Act also establishes separate standards for toxic pollutants, and sets an
ultimate national goal that "the discharge of toxic pollutants in toxic amounts be prohibited." 33
U.S.C. § 1251 (a)(3). Section 502(13) of the Act defines "toxic pollutants" as "those pollutants, or
combinations of pollutants, including disease-causing agents, which after discharge and upon exposure,
ingestion, inhalation or assimilation into any organism, either directly from the environment or
indirectly by ingestion through food chains, will, on the basis of information available to the Administrator,
cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions
(including malfunctions in reproduction) or physical deformations, in such organisms or their
offspring." 33 U.S.C. § 1362(13) (emphasis added). This broadly-worded definition allows EPA
considerable leeway in determining what constitutes a toxic pollutant.. The highlighted language
would appear to allow the agency to consider the synergistic effects of multiple pollutants on heavily
burdened communities, as well as the effects of bioaccumulation and increased exposure through
high fish consumption.
like other pollutants, toxic pollutants are primarily regulated through the technology-based
standards discussed above. In addition, in Section 307, Congress designated a number of toxic
pollutants and required the Administrator "from time to time" to add to or subtract from the list,
taking into account "the toxicity of the pollutant, its persistence, degradability, the usual or potential
presence of the affected organisms in any waters, the importance of the affected organisms, and the
nature and extent of the effect of the toxic pollutant on such organisms." 33 U.S.C. § 1317(a)(l); see
40 C.F.R. § 401.15. Pollutants on the list are subject to the BAT requirement and corresponding
effluent limitations, "which may include a prohibition," 33 U.S.C. § 1317(a)(2); and Section
307 (a) (4) further requires the effluent limitations to "be at that level which the Administrator
determines provides an ample margin of safety." 33 U.S.C. § 1317(a)(4). Toxic effluent limitations
are promulgated through a public notice-and-comment procedure, and must be reviewed and, if
appropriate, revised every three years. 33 U.S.C. § 1317(a)(2)&(3).
Early in the Act's history, Section 307's "ample margin of safety" requirement was thought
to grant EPA sweeping authority to regulate toxic pollutants or combinations of pollutants through
health-based standards, including outright bans. See generally Oliver A. Houck, The Regulation of Toxic
Pollutants Under the Clean Water Act, 21 ELR 10528 (1991) [hereinafter "Houck article"]. That
authority was tested, and upheld, in a series of cases that had challenged EPA's decision to ban
PCBs and drastically reduce discharge limits for other toxics. Environmental Defense Fund v. EPA, 598
F.2d 62 (D.C. Cir. 1978) (PCBs); Hercules, Inc. v. EPA, 598 F.2d 91 p.C. Cir. 1978). These rulings
deferred to EPA's analysis of the available scientific data and its assumptions in favor of protecting
human health without consideration of economic factors. Houck article at 10533-34. However,
other litigation targeting the scope and timetable for EPA's toxics regulation resulted in a consent
decree that in effect abandoned this health-based approach in favor of the current technology-based
BAT requirement. Id. at 10535-36. Nevertheless, the Section 307 health-based authority "is still
valid law," and "remains a viable option for banning the discharge of toxic water pollutants."
Bradley C. Bobertz, The Tools of Prevention: OpportunitiesforPromotinglndustrialPollution Prevention Under
Federal Environmental Legislation, 12 Va. Envtl. L.J. 1 (1992) [hereinafter "Bobertz"], at 5. It could be
revived by EPA to address health risks to low-income communities and communities of color from
93
-------
specific toxic pollutants by listing those pollutants and establishing more stringent discharge
standards or bans.
In addition, Section 303(c)(2) requires states to include all EPA-listed toxic pollutants in
their review of impaired water bodies, and to develop "specific numerical criteria" for these
pollutants where their presence "could reasonably be expected to interfere with those designated
uses adopted by the State, as necessary to support such designated uses." 33 U.S.C. § 1313(c)(2)(B).
Absent such numerical criteria, the states must adopt criteria based on biological monitoring or
assessment methods. Id. This section effectively requires toxic pollutants to be included in the
TMDL calculations being made under Section 303(d), above. Thus, an EPA decision to expand the
toxics listings also would indirectly affect the stringency of water quality standards and TMDLs
being developed at the state level. In addition, the option to use biological criteria enables methods
like whole effluent testing, which has been called "the only [method] to date that even attempts to
measure the cumulative effects of what is actually being discharged." Houck article at 10558. This
in turn could yield empirical data and standards that are more specifically tailored to heavily
burdened communities.
Finally, Section 304(1) separately requires "individual control strategies" (ICSs) for toxic
pollutants in areas where technology-based effluent limitations are insufficient to meet either the
water quality standards or "that water quality which shall assure protection of public health, public
water supplies, agricultural and industrial uses, and the protection and propagation of a balanced
population of shellfish, fish and wildlife, and allow recreational activities in and on the water." 33
U.S.C. § 13140(1)(A). For each such toxic "hot spot," the state must determine which point
sources are discharging the toxic pollutants, develop specific toxic effluent limitations for those
sources, and incorporate them into discharge permits. 33 U.S.C. § 1314(/)(1)(C)&(D); 40 C.F.R. §
123.46. The individual control strategies must be approved by EPA, which retains authority to
promulgate them through a notice-and-comment procedure and to implement them if a state fails to
do so or if the state proposal is deemed inadequate. 33 U.S.C. § 1314(^(2)&(3). The control
strategies also were to be reviewed annually, and if appropriate revised or expanded to include
additional sources of pollution. 33 U.S.C. § 1314(m).
Here again, the ICS procedure for toxics — characterized as "a more focused process for
setting TMDLs," Houck article at 10548 - provides an opportunity to consider the concerns and
needs of those communities most affected by toxic pollution, and to set standards accordingly. In
practice, however, the ICSs have been criticized for their wide variability among the states, which
has led to a "regionalization" of toxics standards that may provide as much opportunity for
environmental inequity as for environmental equity. Id. at 10550-53. Since EPA retains oversight
authority over ICSs through the annual review process, it could use this process to promote
uniformity in their implementation.
D. Disposal of Sewage Sludge
Section 405 governs disposal of sewage sludge resulting from municipal waste treatment. 33
U.S.C. § 1345. Where use or disposal "would result in any pollutant from such sewage sludge
entering the navigable waters," it is subject to the standards and permit requirements of the Act. 33
U.S.C. § 1345(a)-(b). EPA must issue regulations that "specify factors to be taken into account in
94
-------
determining the measures and practices applicable to each such use or disposal." 33 U.S.C. §
1345(d); see 40 C.F.R. Part 503. In addition, the 1987 amendments to the Act mandated specific
regulations to address toxic pollutants found in sewage sludge.
Section 405 (d) (2) requires EPA to "identify those toxic pollutants which, on the basis of
available information on their toxicity, persistence, concentration, mobility, or potential for
exposure, may be present in sewage sludge in concentrations which may adversely affect public health or the
environment, and propose regulations specifying acceptable management practices for sewage sludge
containing each such toxic pollutant and establishing numerical limitations for each such pollutant
for each use identified," and to review and update the list at least every two years. 33 U.S.C. §
1345(d)(2) (emphasis added). The management practices and numerical limits "shall be adequate to
protect public health and the environment from any reasonably anticipated adverse effects of each
pollutant," and EPA also may promulgate design or operational standards where numerical limits are
not feasible. Id.
This health-based authority gives the agency extraordinary flexibility to address residual toxic
pollutants in sewage sludge. EPA could use this authority to ensure that sludge disposal does not
have a disproportionate impact on low-income communities or communities of color situated near
disposal sites, or on sub-populations (such as small children) who may be at higher risk of exposure
to disposed sludge or its runoff.
III. PERMITTING AND OTHER APPROVALS
As discussed in Part I above, the Clean Water Act establishes the ambitious goal of total
elimination of both "conventional" and toxic discharges into the navigable waters of the United
States. 33 U.S.C. § 1251(a)(l)&(3). The zero-discharge goal is directly reflected in the Act's
statutory presumption that all discharges are prohibited unless they meet the Act's standards and
obtain an appropriate permit. 33 U.S.C. § 1311 (a). Permitting for pollutant discharges is carried out
by EPA and authorized states and Tribes through the National Pollutant Discharge Elimination
System. 33 U.S.C. § 1342. Permitting for dredge-and-fill activities is carried out by the U.S. Army
Corps of Engineers, authorized states and Tribes, and EPA under Section 404 of the Act. 33 U.S.C.
§ 1344.
A. National Pollutant Discharge Elimination System
Under the National Pollutant Discharge Elimination System (NPDES), EPA and authorized
states or Tribes may issue permits for discharges that conform to the Act's multiple layers of
technology-based, water-quality-based, and toxic effluent standards. In reviewing NPDES permit
applications and issuing the permits, the agency has broad discretion to consider a variety of factors
and to impose site-specific conditions that are deemed necessary to meet the standards and the other
goals and requirements of the Act. The agency also has discretion to review, object to, and place
conditions on state-issued NPDES permits that fail to meet these requirements. These authorities
provide a variety of opportunities to further environmental justice.
95
-------
Section 402(a)(l) of the Act provides that "the Administrator may, after opportunity for
public hearing issue a permit for the discharge of any pollutant, or combination of pollutants,
notwithstanding [the general discharge prohibition], upon condition that such discharge will meet
either (A) all applicable requirements under [the standard-setting and discharge reporting provisions
of the Act]. . .or (B) prior to the taking of necessary implementing actions relating to all such
requirements, such conditions as the Administrator determines are necessary to carry out the provisions of this
chapter" 33 U.S.C. § 1342(a)(l) (emphasis added). In other words, the NPDES permit is a key tool
that is to embody all the other requirements of the Act (Subsection (A)); and where those
requirements have not yet been "implemented" through rule-making or other formal action, the
Administrator retains discretion to apply them through case-by-case permit conditions (Subsection
(B)). This latter provisional grant of authority has been described as "very generous," Bobertz at 6,
leading to speculation that EPA could use it to "implement" certain provisions of the Act by
requiring permit conditions that address environmental justice concerns. Lazarus & Tai at 641-42;
OGC 2000 Memorandum at 7.
In particular, it has been suggested that the agency could use Section 402(a)(l)(B) to
fashion permit conditions based on its as-yet-unutilized Section 302(a) authority to impose
additional water-quality-related effluent limitations where necessary to protect public health, public
water supplies, and fisheries (see discussion in Part II, above). Lazarus & Tai at 642; OGC 2000
Memorandum at 7. These permit conditions could directly address envkonmental justice issues,
such as targeting water pollutants of specific concern to low-income communities and communities
of color, taking into account the higher fish consumption in certain areas, allowing for risk
aggregation, or building community enforcement capacity. Id.
In addition, Section 402(a)(2) of the Act separately requires the Administrator to "prescribe
conditions for such permits to assure compliance with the requirements of paragraph (1) of this
subsection, including conditions on data and information collection, reporting, and such other
requirements as he deems appropriate." 33 U.S.C. § 1342(a)(2) (emphasis added). This provision clearly
grants EPA discretion to place a wide array of reporting and disclosure conditions on NPDES
permits, which could be more closely tailored to information relevant to envkonmental justice
concerns.
Finally, even where EPA has delegated its permitting authority to the state or tribal level,
Section 402(d) specifically authorizes the agency to review state-issued NPDES permits and to
object in writing to the issuance of any permit "as being outside the guidelines and requkements of
the Act. 33 U.S.C. § 1342(d)(2)(B). Such an objection must detail "the reasons for such objection
and the effluent limitations and conditions which such permit would include if it were issued by the
Administrator," id., after which the state may request a public hearing on the objection and submit a
revised permit. 33 U.S.C. § 1342(d)(4). If the state fails to request a hearing or to resubmit the
permit, the Administrator may then issue the permit in accordance with the Act's requkements. Id.
EPA may waive its right of review at the time permitting authority is delegated to a state. 33 U.S.C.
§ 1342(e). Where it has not done so, this review process could provide an additional opportunity,
and an additional forum, for incorporating envkonmental justice considerations into NPDES
permits. (For a fuller discussion of delegated CWA authority, see Part TV, below.)
96
-------
Under the permitting regulations, EPA or the states also must deny the issuance of a permit
where necessary to enforce water-quality standards in impaired waters. The regulations provide that
"no permit may be issued to a new source or a new discharger, if the discharge from its construction
or operation will cause or contribute to the violation of water quality standards." 40 C.F.R. §
122.4(i). Under this regulation, any potential new source in an impaired basin must show both that
there is a remaining load allocation to accommodate the new discharge, and that all other
dischargers in the basin are in compliance or on track to be in compliance with die water quality
standards. Id. A similar provision governing interstate discharges was construed by the Supreme
Court to allow EPA to set an absolute prohibition on any discharge that "effected an 'actually
detectable or measurable' change in water quality." Arkansas v. Oklahoma, 503 U.S. 91 (1992); see
Houck book at 82 & 114 n. 66 ("the same result would seem to obtain for intrastate discharges.").
Enforcing this requirement, and shifting the burden of proof to permit applicants to show that their
discharges will not affect water quality, could prove a significant driver for banning new sources
from heavily impaired basins and for improving the existing conditions. See U.S. EPA, REPORT OF
THE FEDERAL ADVISORY COMMITTEE ON THE TOTAL MAXIMUM DAILY LOAD (TMDL) PROGRAM
31 (U.S. Environmental Protection Agency, pub., EPA 100-R-98-006, July 28, 1998). It could prove
particularly relevant to low-income communities or communities of color whose watersheds are
affected by multiple pollution sources.
In addition, under the regulations, even existing NPDES permits may be modified if there is
new information that was not available at the time of permit issuance that "would have justified the
application of different permit conditions at the time of issuance." 40 C.F.R. § 122.62(a)(2). Such
information could include new data demonstrating that a water body is in fact impaired and'failing
to meet water quality standards, or even the simple fact of a subsequent TMDL allocation. Houck
book at 82. Thus, this section provides additional authority for ensuring that water quality standards
in heavily impaired basins can be met.
B. Concentrated Animal Feeding Operations (CAFOs)
One subset of point sources under the NPDES program are concentrated animal feeding
operations (CAFOs). These sources have become increasingly important in recent years, as hog and
chicken feeding and processing operations have gotten ever larger and more concentrated. Houck
book at 89. Such operations, and their actual and potential discharges, are of particular concern to
the predominantly low-income, rural, and tribal communities where they tend to be situated. Under
Clean Water Act regulations, all CAFOs over a certain size are treated as point sources and required
to obtain a NPDES permit. 40 C.F.R. § 122.23 & app. B. Smaller operations can be included on a
case-by-case basis if EPA or the state agency conducts an on-site inspection and determines that the
operation "is a significant contributor of pollution to the waters of the United States." 40 C.F.R. §
122.23(c)(l). The CAFO effluent guidelines in 40 C.F.R. Part 412 theoretically establish a zero-
discharge requirement for permitted facilities, exempting only storm overflow and land application
of wastes. 40 C.F.R. §§ 412.12, 412.13.
In response to criticism, some highly publicized fish kills from CAFOs, and litigation, EPA
has issued a proposed rule to clarify and strengthen CAFO permitting requirements. Houck book at
89-91; see U.S. EPA Office of Wastewater Management, Animal Feeding Operations, at
http://cfpubl.epa:gov/npdes/home.cfm?program_id=7 (last visited Nov. 13,2001). But
97
-------
environmental justice advocates have long suggested that the agency could use its existing authority
to step up permitting of large facilities, include smaller facilities on a case-by-case basis, and increase
federal inspections that would trigger permitting and enforcement requirements at both the federal
and State level. NATIONAL ENVIRONMENTAL JUSTICE ADVISORY COUNCIL, ENVIRONMENTAL
JUSTICE IN THE PERMITTING PROCESS 30 (and transcript sections cited) (U.S. Environmental
Protection Agency, pub., EPA 300-R-00-004, July 2000). These steps would help address the impact
of CAFOs on low-income communities and communities of color.
C. Section 404 Dr edge-and-Fill Permitting
Like pollutant discharges, dredge-and-fill activities that affect navigable waters are presumed
illegal unless a permit is obtained under Section 404 of the Act: "material should not be discharged .
into the aquatic ecosystem, unless it can be demonstrated that such a discharge will not have an
unacceptable adverse impact either individually or in combination with known and/ or probable impacts of other
activities affecting the ecosystems of concern" 40 C.F.R. § 230. l(c) (emphasis added). Section 404 permits
are issued by the U.S. Army Corps of Engineers under guidelines developed jointly by the Corps and
EPA, but EPA retains veto power over permitting decisions. Section 404 and its accompanying
Corps and EPA regulations set out a detailed public notice-and-comment procedure, similar to
environmental impact assessment, that requires consideration of siting issues, alternatives to the
proposed project, and mitigation measures. See generally 33 C.F.R. Part 320, 40 C.F.R. Part 230.
Section 404(a) of the Act authorizes the Army Corps of Engineers to "issue permits, after
notice and opportunity for public hearings for the discharge of dredged or fill material into the
navigable waters at specified disposal sites." 33 U.S.C. § 1344(a). In considering a permit
application, the Corps first must conduct a "public interest review" that is "based on an evaluation
of the probable impacts, including cumulative impacts, of the proposed activity and its intended use on
the public interest." 33 C.F.R. 320.4(a)(l) (emphasis added). The review consists of a case-by- case
balancing of a long list of factors, which includes "conservation, economics, aesthetics, general
environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards,
floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and
conservation, water quality, energy needs, safety, food and fiber production, mineral needs,
considerations of property ownership and, in general, the needs and welfare of the people." Id.
Several of these factors touch on environmental justice concerns. For example, the
definition of "historic properties" expressly includes "Indian religious or cultural sites," 33 C.F.R. §
320.4(e), and it has been suggested that the general "needs and welfare of the people" factor allows
ample room for considering disproportionate impacts or other environmental justice issues. Hill &
Targ at 36. In addition, the express requirement that cumulative impacts be considered could be
especially important for communities whose watersheds are akeady severely impacted by dredge-
and-fill projects or other kinds of activity.
Even where the Corps concludes that granting a permit is in the public interest, it still must
meet EPA's Section 404(b)(l) permitting guidelines. These guidelines provide that the permit may
not be issued unless it can be shown -that: (1) there are no "practicable alternatives" that would have
less adverse ecological impact; (2) the discharge will not violate existing water quality or toxic
effluent standards, or jeopardize threatened or endangered species; (3) the discharge will not cause
, 98
-------
"significant degradation" to the surrounding aquatic ecosystem, especially drinking-water supplies,
fisheries, and fish and wildlife habitat; and (4) all "appropriate and practicable steps" have been
taken to minimize the discharge's adverse effects. 40 C.F.R. § 230.10(a)-(d).
Here again, each of these factors could be read to include health and environmental issues
relevant to low-income communities and communities of color. For example, the requirement that
alternatives be considered could lead to consideration of other possible sites that are not already
over-burdened or that akeady enjoy more environmental benefits. "Significant degradation" is
specifically defined in terms of human health concerns, including exposure through the food chain.
In addition, the minimization requirement appears to give broad authority to attach permit
conditions or to require the permittee to take action to address a wide variety of adverse impacts.
Cumulative impacts are specifically addressed in 40 C.F.R. § 230.11(g), which requires such impacts
to be "documented and considered during the decision-making process concerning the evaluation of
individual permit applications, the issuance of a General permit, and monitoring and enforcement of
existing permits."
Although the Corps of Engineers administers the Section 404 permitting program, EPA
retains discretionary oversight. Section 404(c) authorizes the Administrator to prohibit, veto, or
restrict the issuance of a permit "whenever he determines, after notice and opportunity for public
hearings, that the discharge of such materials into such area will have an unacceptable adverse effect
on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding
areas), wildlife, or recreational areas." 33 U.S.C. § 1344(c). EPA must consult with the Corps prior
to exercising this authority, and must set forth its findings and reasons in writing. Id. Thus, the
agency could apply the broad language of this provision to veto permits that may have a
disproportionately high public health or environmental impact on low-income communities and
communities of color, either directly or by contaminating local fisheries. OGC 2000 Memorandum
at 8. . '
Likewise, when Section 404 permitting authority has been delegated to the state level, EPA
still retains authority over permits. Section 404(j) authorizes the Administrator to review state-
issued dredge-and-fill permits and, after consulting with the Corps and the U.S. Department of Fish
and Wildlife, to object in writing to the issuance of any permit "as being outside the guidelines and
requirements of Section 404. 33 U.S.C. § 13440. Such an objection must "contain a statement of
the reasons for such objection and the conditions which such permit would include if it were issued
by the Administrator," after which the state may request a public hearing on the objection and
submit a revised permit. Id. If the state fails to request a hearing or resubmit the permit, the
Administrator may then issue the permit in accordance with the Act's guidelines and requirements.
Id. As with EPA review of state-issued NPDES permits, this process could provide an additional
opportunity for incorporating environmental justice considerations into Section 404 permits. (For a
fuller discussion of delegated Section 404 authority, see Part IV, below.)
IV. DELEGATION OF PROGRAMS TO STATES AND TRIBES
Like other major pollution control statutes, the Clean Water Act allows EPA to delegate
significant permitting, monitoring, and enforcement responsibility to the state or tribal level. This is
99
-------
consistent with the Act's general policy "to recognize, preserve, and protect the primary
responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the
development and use (including restoration, preservation, and enhancement) of land and water
resources, and to consult with the Administrator in the exercise of his authority under this chapter."
33 U.S.C. § 1251 (b). At the same time, the Act's zero-discharge goals are clearly stated in terms of a
"nationalpolicy," 33 U.S.C. § 1251(a)(l)&(3) (emphasis added); and another clear goal is to
"encourage the enactment of improved and, so far as practicable, uniform State laws relating to the
prevention, reduction, and elimination of pollution." 33 U.S.C. § 1253(a) (emphasis added).
Further, states are prohibited from adopting any standard, effluent limitation, or other requirement
that is less stringent than federal requirements. 33 U.S.C. § 1370. As a result, even though the vast
majority of states have received delegated authority, EPA'retains its authority to ensure strict and
uniform implementation and enforcement of its standards and programs — a key environmental
justice goal. This is reflected in the delegation provisions of the Act's two major permitting
programs, NPDES and Section 404.
A. National Pollutant Discharge Elimination System
Each state may request that EPA delegate authority to it to administer the NPDES program ,
upon a showing that the laws of the state provide "adequate authority" to carry out the program,
including authority to revoke permits, require inspections, monitoring, and reporting, and to assess
penalties for violations. 33 U.S.C. § 1342(b). State programs must also provide for public
participation, including judicial review of permit approvals, 40 C.F.R. § 123.30, citizen intervention
in enforcement actions, and state agency response to citizen complaints. 40 C.F.R. § 123.27(d).
Tribes also may request and receive delegated authority after making a similar showing, and after a
further EPA finding that the Tribe is "reasonably expected to be capable" of carrying out the Act.
33 U.S.C. § 1377(e).
EPA must conduct a public hearing on the delegation decision "if interest is shown," and
consider and respond to aiiy comments received during a notice-and-comment period. 40 C.F.R. §§
123.1 (e), 123.61. Unless it concludes that adequate authority does not exist, EPA must approve the
state's or Tribe's application, and must then suspend federal issuance of NPDES permits in that
jurisdiction. 33 U.S.C. § 1342(c)(l). While delegation of authority suspends EPA's issuance of
permits within the jurisdiction, the agency's enforcement authority continues to operate in parallel
with the state's or Tribe's. 33 U.S.C. § 1342(z). Moreover, any state renewals or modifications of
existing permits generally may not contain effluent limitations that are less stringent than those
issued by EPA. 33 U.S.C. § 1342(0)(1).
Once authority has been delegated, EPA still exercises oversight. Section 402(c)(3)
provides that "[wjhenever the Administrator determines after public hearing that a State is not
administering a program approved under this section in accordance with requirements of this
section, he shall so notify the State and, if appropriate corrective action is not taken within a
reasonable time, not to exceed ninety days, the Administrator shall withdraw approval of such
program." 33 U.S.C. § 1342(c)(3). Grounds for withdrawal include "[Repeated issuance of permits
which do not conform to the requirements" of the Act, "[fjailure to comply with the public
participation requirements," and failure to enforce the program adequately. 40 C.F.R. §§
123.63(a)(2)&(3). Similarly, 40 C.F.R. § 123.63(a)(5) authorizes EPA to revoke a state's delegated
100
-------
authority if the state fails to develop, implement, or enforce water quality standards under Section
303(c) and TMDLs under Section 303(d).
Though rarely invoked, this continuing oversight authority underscores that EPA retains at
least the threat of exercising its discretion to hold individual state permitting programs to a uniform
federal standard of water-quality protection, and potentially to implement other related federal
mandates and goals, such as Title VI of the Civil Rights Act or Executive Order 12898 on
environmental justice.
Equally important, EPA's power to completely revoke a state's delegated authority implies a
number of lesser-included powers and sanctions, some of which are expressly granted by the Act.
These include the ongoing authority to review, object to, and place conditions on state-issued
NPDES permits under Section 402(d) (discussed in Part III, above); the authority to assume a
state's enforcement responsibilities in case of a "widespread" failure to enforce under Section
309(a)(2) (discussed in Part V, below); and the possibility of withholding federal funding or
technical assistance under other sections of the Act to states whose permitting programs are not in
compliance with national standards (discussed in Part VII, below).
B. Section 404 DredgeTand-Fill Permitting
Like the NPDES program, the Section 404 dredge-and-fill permitting program may be
delegated to the state level, through a similar process and showing of "adequate authority" to issue,
implement, and enforce permits. One major difference is that EPA's decision whether to delegate
must be made in consultation with the Army Corps of Engineers and the Fish and Wildlife Service.
33 U.S.C. §§ 1344(g)&(h). As with NPDES delegation, EPA's Section 404 enforcement authority
continues to operate in parallel with the state's of Tribe's. 33 U.S.C. § 1344(n).
Section 404(/) provides that "[w]henever the Administrator determines after public hearing
that a State is not administering a program approved under.. .this section, in accordance with this
section. . .the Administrator shall so notify the State, and, if appropriate corrective action is not
taken within a reasonable time," EPA may withdraw approval of the state program and return
primary permitting authority to the Corps of Engineers. 33 U.S.C. § 1344(z). Here again, revocation
or even the threat of revocation is rarely used, but may provide leverage for ensuring that uniform
standards are implemented and enforced through state dredge-and-fill permitting programs. In
addition, as discussed in Part III, above, Section 404(j) authorizes EPA to conduct an ongoing
review of state- issued permits on a case-by-case basis, and to object to and impose conditions on .
the issuance of individual dredge-and-fill permits. 33 U.S.C. § 1344®.
V. ENFORCEMENT
Section 309 of the Clean Water Act grants EPA broad enforcement authority, including the
power to issue administrative orders, to bring civil actions against violators, and to assess stringent
criminal, civil, and administrative penalties. 33 U.S.C. § 1319(a)-(g). The Army Corps of Engineers
has primary enforcement authority over Section 404, but that does not exclude EPA from
undertaking enforcement action. 33 U.S.C. §§ 1344(n)&(s). Where primary enforcement authority
101
-------
under the Act has been delegated to a state, EPA must either take action against any violations it
discovers, or notify the state and pursue appropriate enforcement action if the state fails to do so.
33 U.S.C. § 1319(a)(l). If EPA finds permit violations that "are so widespread that such violations
appear to result from a failure of the State to enforce such permit conditions or limitations
effectively," it must notify the state, give public notice, and, if the situation is not corrected within
thirty days, assume federal enforcement responsibility until the state has satisfied EPA that it will
enforce the program. 33 U.S.C. § 1319(a)(2).
Section 309(d) requires that civil penalties be determined according to "the seriousness of
the violation or violations, the economic benefit (if any) resulting from the violation, any history of
such violations, any good-faith efforts to comply with the applicable requirements, the economic
impact of the penalty on the violator, and such other matters as justice may require" 33 U.S.C. § 1319(d)
(emphasis added). Section 309(g) contains similar language with regard to administrative penalties,
also including "such other matters as justice may require." 33 U.S.C. § I319(g)(3).
Section 504 allows EPA to bring a suit for injunction or to take other appropriate actions
"upon receipt of evidence that a pollution source or combination of sources is presenting an
imminent and substantial endangerment to the health of persons or to the welfare of persons where
such endangerment is to the livelihood of such persons." 33 U.S.C. § 1364. This authority could
allow the agency to take emergency actions in communities where a combination of pollutants, or a
specific incident, reaches the "imminent and substantial endangerment" threshhold, as defined by
EPA practice under the Act and other pollution statutes.
Section 505 of the Act authorizes citizen suits, with procedures comparable to those found
in the other main pollution control statutes. 33 U.S.C. § 1364.
For a fuller discussion of statutory enforcement authorities for advancing environmental
justice, see Chapter 5.
VI. INFORMATION GATHERING (RESEARCH, MONITORING,
AND REPORTING)
A. Research
Section 304 authorizes EPA to conduct a broad array of research programs to further the
purposes of the Act. Section 304(a) requires the Administrator to, "in cooperation with other
Federal, State, and local agencies, conduct and promote the coordination and acceleration of,
research, investigations, experiments, training, demonstrations, surveys, and studies relating to the
causes, effects, extent, prevention, reduction, and elimination of pollution." 33 U.S.C. § 1254(a)(l).
In doing so, the agency must "encourage, cooperate with, and render technical services to pollution
control agencies and other appropriate public or private agencies, institutions, and organizations,
and individuals, including the general public." 33 U.S.C. § 1254(a)(2). In addition to this general
research authority, EPA is specifically required to "conduct research on, and survey the results of
other scientific studies on, the harmful effects on the health or welfare of persons caused by
102
-------
pollutants." 33 U.S.C. § 1254(c). This authority could be used to study specific health impacts on
communities of color or low-income communities.
Further, Section 304(/) specifically requires EPA to develop "the latest scientific knowledge
available in indicating the kind and extent of effects on health and welfare which may be expected
from the presence of pesticides in the water in varying quantities," and to "revise and add to such
information whenever necessary to reflect developing scientific knowledge." 33 U.S.C. § 1254($.
Similarly, Section 304(p) mandates "a comprehensive study and research program to determine
new and improved methods and the better application of existing methods of preventing, reducing,
and eliminating pollution from agriculture, including the legal, economic, and other implications of the use of
such methods" 33 U.S.C. § 1254(p) (emphasis added). If these mandates have ongoing appropriations
authority in the EPA budget, they could be used to research pesticide and water pollution issues that
affect farmworkers and others living in agricultural communities.
Section 305 (b) requites the states to report to EPA on water quality within the state and the
progress being made toward water quality goals, including "the economic and social benefits of such
achievement." 33 U.S.C. § 1315(b)(l)(D)(iii). The reports are prepared biennially, and EPA then
must transmit them to Congress "together with an analysis thereof." 33 U.S.C. § 1315(b)(2). EPA's
guidelines for the reports could require states to collect and report data on disproportionate water
quality impacts within the state, and EPA's analysis could consider these issues on a national-scale.
B. Monitoring
Section 308(a) of the Act states that "[wjhenever required to carry out the objective of this
chapter. . . .the Administrator shall requite the owner or operator of any point source to (i) establish
and maintain such records, (ii) make such reports, (iii) install, use, and maintain such monitoring
equipment or methods (including where appropriate, biological monitoring methods), (iv) sample
such effluents (in accordance with such methods, at such locations, at such intervals, and in such
manner as the Administrator shall prescribe), and (v) provide such other information as he may
reasonably require." 33 U.S.C. § 1318(a)(A). The section also grants "the Administrator or his
authorized representative" a right of entry to the premises to access and copy the records, inspect
monitoring equipment, and take effluent samples, 33 U.S.C. § 1318(a)(B), and this authority also
may be delegated to the states. 33 U.S.C. § 1318(c). As discussed in Part III, above, monitoring and
reporting requirements may be incorporated as conditions on NPDES permits. 33 U.S.C. § 1342(a).
These broad grants of authority have been upheld in a wide variety of contexts, and allow EPA to
require production of information it deems necessary to further environmental justice goals.
C. Reporting
Section 308(b) requires that "any records, reports, or information obtained under this
section (1) shall, in the case of effluent data, be related to any applicable effluent limitations, toxic,
pretreatmerit, or new source performance standards, and (2) shall be available to the public." 33
U.S.C. § I318(b). There is an exception for information that can be demonstrated to be linked to
trade secrets, but that exception does not apply to effluent data, nor to information relevant to
enforcement of the Act. 33 U.S.C. § 1318(b)(2). Reporting, including reporting of monitoring data,
also may be incorporated as a condition on NPDES permits. 33 U.S.C. § 1342(a)(2). These
103
-------
disclosure requirements could be tailored to make such information accessible to affected low-
income communities and communities of color.
VII. FINANCIAL ASSISTANCE
Section 105 of the Act provides EPA general authority to make grants for research arid
development. 33 U.S.C. § 1255. These include grants for demonstration projects for improved
technologies to reduce storm water, municipal and industrial discharges, and agricultural pollution,
and each of these subsections establishes a goal of "preventing, reducing, and eliminating pollution."
Id. Assuming continuing appropriations, this authority could be used to target sources or
substances of concern to low-income communities and communities of color.
Section 106 allows EPA to make grants to the states "to assist them in administering
programs for the prevention, reduction, and elimination of pollution," 33 U.S.C. § 1256(a), and
requires such funding to be withheld from states that fail to create adequate water quality monitoring
and reporting procedures. 33 U.S.C. § 1256(e)(l). A portion of such funding could be earmarked
for the purpose of addressing environmental justice issues.
Similarly, Section 319 addresses nonpoint sources of water pollution, and requires the states
to prepare management plans that identify and outline measures for controlling nonpoint sources.
33 U.S.C. § 1329. Once these plans have been approved by EPA, Section 319(h) authorizes the
agency to make grants to the states to implement the plans. 33 U.S.C. § 1329(h). In deciding among
grant applicants, EPA may give priority to "particularly difficult or serious nonpoint source pollution
problems," which could include environmental justice issues such as low-income communities'
exposure to pesticides, nitrate contamination in rural areas, and so on. 33 U.S.C. § 1329(h)(5)(A).
Section 405(g) authorizes EPA to conduct or initiate research and demonstration projects
related to "safe and beneficial management and use" of sewage sludge, and to provide grants for this
purpose to state pollution control agencies, public and nonprofit organizations, and individuals. 33
U.S.C. § 1345(g). As discussed in the standard-setting section above, this authority could be used to
target the impacts of sludge disposal on low-income communities or communities of color, or other
heavily burdened or sensitive populations.
f
In addition, the Act creates a number of regional programs that provide financial and
technical assistance for research and demonstration projects in significant water bodies and other
areas. These include the Great Lakes (Sections 108 & 118), Alaskan villages (Section 113), Lake
Tahoe (Section 114), the Hudson River (Section 116), Chesapeake Bay (Section 117), Long Island
Sound (Section 119), and Lake Champlain (Section 120). 33 U.S.C. §§ 1258,1263,1264,1266-
1270. To the extent that EPA has continuing appropriations for these programs, the agency could
target research and funding to specific environmental justice issues in these regions.
104
-------
CHAPTER 11
CLEAN AIR ACT ("CAA")
42 U.S.C. § 7401-7671q
The Clean Ak Act (CAA) regulates air emissions from both stationary sources, such as
power plants, and mobile sources, such as automobiles, in order to protect public health and
decrease air pollution. As enacted in 1970, the CAA promoted emissions reductions through the
promulgation of air quality standards that set the levels of individual pollutants that could be emitted
to the air without endangering the public. The CAA required EPA to set these standards, known as
the national ambient air quality standards (NAAQS), for six criteria air pollutants. The CAA also
required EPA to list and regulate toxic pollutants. To help implement and enforce the standards,
EPA authorizes state-run implementation programs that meet certain minimum requirements. In
addition, although the NAAQS program is still a top priority, Congress has amended the CAA
several times to include new permitting and emissions trading programs and other CAA programs,
such as the acid rain and stratospheric ozone programs.
The healdi effects caused by air pollution and the maintenance of air quality that does not
endanger public health are important environmental justice issues. Disproportionate numbers of
people in low-income communities and communities of color Eve in urban environments with high
levels of air pollution. Exposure to air pollution may trigger or cause adverse health effects and may
explain why respiratory illnesses, such as asthma and bronchitis, particularly affect low-income
communities and communities of color. See U.S. EPA Region 7, Asthma, Ak Quality, and
Envkonmental Justice: EPA's Role in Asthma Education and Prevention, at
http://www.epa.gov/region07/programs/artd/ak/quaHty/asdima.htm (last visited Nov. 7, 2001);
see also U.S. EPA, ENVIRONMENTAL EQUITY: REDUCING RISKS TO ALL COMMUNITIES 14 (1992).
The Clean Ak Act contains authorities for addressing envkonmental justice issues through standard
setting, permitting, enforcement and, in some instances, delegation of authority to states. The
discussion of statutory authorities presented in this chapter is intended to provide the public with a
foundation for further inquiry into the political, technical, legal and other considerations involved in
pursuing action to address envkonmental justice issues under a particular area of authority.
Part I of this chapter examines the CAA goal of protecting public health and welfare and
how this goal could support efforts to address public health in low-income communities and
communities of color. Part II discusses EPA's standard setting and rule-making authority under the
Act, including national ambient ak quality standards, nonattainment designations, new performance
standards, national emission standards for hazardous ak pollutants, and mobile source standards.
Part III discusses EPA's permitting authority under the CAA, focusing on Tide V operating permits, •
new source review permits, prevention of significant deterioration permits, and the acid deposition
and sulfur dioxide allowance trading program. Part IV addresses EPA's delegation of CAA
regulatory authority to state governments, examining both the specific standards for delegated CAA
programs and EPA's oversight of delegated programs. Finally, Parts V-VII discuss opportunities for
advancing envkonmental justice through the CAA's enforcement, information gathering, and
financial assistance provisions.
105
-------
I. GENERAL PROVISIONS
A. Public Health and Welfare
Congress intended the CAA to "protect and enhance the quality of the Nation's air
resources so as to promote the public health and welfare and the productive capacity of its
populations." 42 U.S.C. § 7401 (b)(l). The legislative history of this provision, Section 101(b),
shows that Congress found public regulation of air resources to be necessary, since air pollution
contributes to many diseases affecting, millions of citizens. H. Rep. No. 728, 1967 U.S.C.C.A.N.
1938,1941-43 (1967) [hereinafter "H. Rep. No. 728"]. Moreover, Congress recognized that
thousands of different air pollutants are emitted every day, and exposure to this mix of pollutants
can produce more adverse health effects than exposure to each of the individual pollutants. S. Rep.
No. 101-228,1990 U.S.C.C.A.N. 3388 (1990) [hereinafter "S. Rep. No. 101-228"]. Concern for
public health is a recurring theme throughout the CAA, and this policy provision may provide some
general authority for EPA to use the Act to address the health impacts of air pollution on
communities that are disproportionately affected or subject to multiple sources and types of
pollution.
Congress recognized.that air pollution "causes, contributes to, or aggravates a long list of
diseases and dysfunction — chronic bronchitis, lung cancer, nervous disorders, and heart disease." S.
Rep. No. 101-228. Early legislative history contemplated the need to address the impact of air
pollution on individuals suffering from such diseases. H. Rep. No. 728. In recognizing the need to
protect such individuals, Congress intended the CAA's public health protection to include
protection of those citizens more prone to respiratory diseases. In American ~Lung Association v. EPA,
134 F.3d 388 (D.C. Cir. 1998), the D.C. Circuit recognized that the Act requires such protection,
holding that national ambient air quality standards "must protect not only average healthy
individuals, but also 'sensitive citizens' - children, for example, or people with asthma, emphysema,
or other conditions rendering them particularly vulnerable to air pollution." Id. at 388-89.
The effects of pollution on sensitive populations has been an ongoing concern of low-
income communities and communities of color, and it has been argued that the CAA's public health
and welfare provisions and the American Lang Association decision can be utilized to further
environmental justice objectives. See Barry E. Hill & Nicholas Targ, The Link between 'Protecting
Natural Resources and the Issue of Environmental Justice, 20 B.C. ENVTL. AFF. L. REV. 1 (2000). Although
the. American Lutig Association decision construes "public health" in the context of Section 109's
authority to set national ambient air quality standards, the decision and the Acf s legislative history
provide support for the argument that public health provisions found elsewhere in the CAA also
must contemplate sensitive communities. EPA could further environmental justice by attempting to
utilize the Act's various public health provisions to protect sensitive populations.
B. Advisory Committees
CAA Section 117(b) states that EPA shall, "to the maximum extent practicable within the
time provided, consult with appropriate advisory committees, independent experts, and Federal
departments and agencies" prior to issuing air quality criteria, hazardous air pollutant lists, standards,
or regulations. 42 U.S.C. § 7417(b). Section 117(a) states that "committee members shall include,
106
-------
but not be limited to, persons who are knowledgeable concerning ak quality from the standpoint of
health, welfare, economics or technology." 42 U.S.C. § 7416(a). This requirement to include
persons who are knowledgeable about public health can be interpreted as authority to appoint
committee members from low-income communities and communities of color with first-hand
knowledge of health impacts, or others who have public health backgrounds specifically focused on
cumulative impacts, synergistic effects, and other environmental justice issues.
II. STANDARD SETTING/RULE-MAKING
The CAA requires EPA to promulgate numerous standards to control or prohibit emissions
of pollutants into the air. These standards address various pollutants and multiple sources of such
emissions. For example, the CAA regulates particulate matter emitted from buses, wood smoke
emissions from home heating, sulfur dioxide emissions from electric utility plants, and carbon
monoxide emissions from automobiles. In setting many of these standards, the Act requires EPA to
protect the public health and welfare. As discussed above in Part I, these standard setting activities
provide EPA with an opportunity to consider and protect the health concerns of sensitive
populations. This Part discusses the key standard setting programs in the CAA and the authorities
they provide to promote environmental justice: (a) national ambient ak quality standards; (b)
nonattainment designation; (c) new source performance standards; (d) national emissions standards
for hazardous ak pollutants; (e) urban area source regulation; (f) mobile source standards; and (g)
hazardous substance accident prevention standards.
A. National Ambient Air Quality Standards (NAAQS)
The NAAQS establish levels of contamination from several pollutants that may not be
exceeded in the ambient ak. The NAAQS represent the levels of pollution in the ambient ak that
research indicates will not harm individuals who are particularly sensitive to pollutants. The Act
authorizes EPA to adopt both primary and secondary NAAQS based on ak quality criteria. The
existing NAAQS address particulate matter, sulfur dioxide, nitrogen oxides, carbon monoxide,
ozone, lead, and volatile organic compounds.
To establish NAAQS, Section 108(a) requkes EPA to publish and revise ak quality criteria
for an ak pollutant. 42 U.S.C. § 7408(a)(l)-(2). Ak quality criteria shall reflect the "latest scientific
knowledge useful in recognizing identifiable effects on public health or welfare that may be expected
from that pollutant's presence in the ambient ak in varying quantities." 42 U.S.C. § 7408(2). In
addition, the criteria for an ak pollutant, "to the extent practicable, must include: (1) variable factors
which of themselves or in combination may alter a pollutant's effects on public health and welfare;
(2) the types of ak pollutants which, when present in the atmosphere, may interact with such
pollutants to produce an adverse effect on public health or welfare; and (3) any known or
anticipated adverse effects on welfare." 42 U.S.C. § 7408(a)(2).
This broad statutory language provides EPA with authority to consider a range of
envkonmental justice concerns — risks to sensitive or vulnerable populations, unique exposure
pathways, etc. — in determining the effect of pollution levels on public health and welfare. See
Richard Lazarus & Stephanie Tai, Integrating Environmental Justice into EP/4 Permitting Authority, 26
107
-------
ECOL. L.Q. 617, 632 (1999) [hereinafter "Lazarus & Tai"]. Also, because a pollutant's effect on
public health and welfare can be altered by other pollutants in the atmosphere, EPA could
potentially use Section 108 authority to consider die synergistic effects of multiple pollutants on
public heakh and welfare.
Section 109 requires EPA to prescribe primary and secondary NAAQS. 42 U.S.C. § 7409.
Primary NAAQS are the "standards the attainment and maintenance of which in the judgment of
the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to
protect the public health." 42 U.S.C. § 7409 (b)(l). Secondary NAAQS are intended to protect die
public welfare from any known or anticipated adverse effects from the presence of the listed air
pollutants in the air. 42 U.S.C. § 7409(b)(2). At least every five years after 1980, EPA must
complete a review of the Section 108 air quality criteria and the NAAQS promulgated diereunder,
and must make such revisions or adopt new NAAQS, as appropriate. 42 U.S.C. § 7409(d)(l).
Under the regulations, states and Tribes can establish ambient ak quality standards that are more
stringent than the national standard. 40 C.F.R. § 50.2(d).
As noted in Part I, above, the American Lung Association decision held that NAAQS "must
protect not only average healthy individuals, but also 'sensitive citizens' — children, for example, or
people with asthma, emphysema, or other conditions rendering them particularly vulnerable to ak
pollution." 134 F.3d at 388-89. In promulgating NAAQS or in revising the ak quality criteria for the
NAAQS every five years, EPA can promote envkonmental justice by considering die impacts of ak
pollutants on diose who are more sensitive due to asthma or other illnesses, or due to factors such
as poor nutrition.
Moreover, Section 109 requkes that the NAAQS allow an "adequate margin of safety" to
protect public health. In Lead Industries Association v. Environmental Protection Agency, 647 F.2d 1130
(D.C. Ck. 1980), the B.C. Ckcuit held that in authorizing EPA to promulgate NAAQS, Congress
"specifically dkected the Administrator to allow an adequate margin of safety to protect against
effects which have not yet been uncovered by research and effects whose medical significance is a
matter of disagreement." 647 F.2d at 1154. Thus, "Congress dkected the Administrator to err on
the side of caution in making the necessary decisions" requked in setting NAAQS. Id. at 1155.
Although some studies have demonstrated connections between ak pollution and adverse heahh
effects in low-income communities and communities of color, all of the dkect, synergistic, and long-
term effects on such communities may not be known for many years. Considering this uncertainty,
the requkement for an adequate margin of safety gives EPA authority to err on the side of caution
by setting NAAQS to address risks to communities of color and low-income communities, even
where medical or scientific uncertainty exists.
In addition, Section 109(b)(2) requkes secondary NAAQS to protect the public welfare.
The Act states that "all language that refers to effects on welfare includes, but is not limited to
effects on soils, water, crops, vegetation, manmade materials/animals, wildlife, weather, visibility,
and climate, damage to and deterioration of property, and hazards to transportation, as well as
effects on economic values and on personal comfort and well being, whether caused by
transformation, conversion, or combination with other ak pollutants." 42 U.S.C. § 7602(h).
Residents of low-income communities and communities of color have stated that the
disproportionate amount of industrial and commercial facilities in diek communities overburdens
108
-------
resources and results in excess noise, traffic, and accompanying psychological .stress. All of these
factors impact the personal comfort and well being of the community. Thus, under Section 109(b),
EPA could potentially evaluate, address, and set secondary NAAQS intended to decrease these
effects in such communities.
Section 108(g) states that the "Administrator may assess the risks to ecosystems from
exposure to criteria air pollutants (as identified by the Administrator in the Administrator's sole
discretion)." 42 U.S.C. § 7408(g). Although the CAA apparently does not define "ecosystem," it
could conceivably extend to areas of impact on low-income communities and communities of color.
For instance, many in both rural and urban areas rely on subsistence fishing and hunting. This
provision authorizes EPA to assess ecosystems that support such practices and to set a NAAQS
based in part on information about exposure of these communities.
B. Nonattainment Designation
EPA designates states and areas as nonattainment, attainment, or unclassifiable areas for
each criteria pollutant. Each area designated nonattainment for ozone can be further classified as a
•marginal area, moderate area, serious area, severe area, or an extreme area. 42 U.S.C. § 7511 (a).
Likewise, carbon monoxide or particulate matter nonattainment areas can be classified as moderate
or serious areas, and each classification subjects the nonattainment area to required control
measures. Once EPA designates an area "nonattainment" with respect to any criteria pollutant, the
agency sets a date by which the area must reach attainment. The agency shall then determine
whether the area attains the NAAQS by that date. Areas that do not meet the NAAQS are subject
to more stringent provisions that must be incorporated within that area's state implementation plan
(SIP). (See the discussion of SIPs in Part V, below.) Within one year after EPA publishes the notice
of failure to reach attainment, each state containing a nonattainment area must submit a revision to
the SIP so that the relevant NAAQS will be met.
Section 182(a) requires each state in which a marginal area is located to submit a revised
inventory of actual emissions from all sources in the area every three years until the area is
redesignated "attainment" 42 U.S.C. § 7511a(a)(3). Section 182(b) requires moderate areas to
make the same submission. 42 U.S.C. § 7511a(b). Section 182(c) requires states in which all or part
of a serious area is located to include provisions within its SIP to adopt,and implement a program
"to improve monitoring for ambient concentrations of ozone, oxides of nitrogen, and volatile
organic compounds." 42 U.S.C. § 7511a(c)(l). Each SIP for the area "shall contain measures to
improve the ambient monitoring of such ak pollutants." 42 U.S.C. § 7511a(c)(l). Sections 182(d)
and (e) require a state with a severe or an extreme area to make the same revisions to its SIP. 42
U.S.C. § 7511a(d)-(e). These requirements could be used to generate and disseminate data of
interest to low-income communities and communities of color within these nonattainment areas.
C. New Source Performance Standards (NSPS)
The New Source Performance Standards set performance standards for new stationary
sources of ak pollution. EPA defines NSPS as "a standard for emission of ak pollutants which
reflects the degree of emission limitation achievable through application of the best system of
emission reduction which (taking into account the cost of achieving such reduction, any non-ak
109
-------
quality health and environmental impact and energy requirements) the Administrator determines has
been adequately demonstrated." 42 U.S.C. § 7411 (a)(1). The NSPS process begins when EPA
publishes a list of categories of stationary sources that cause or contribute significantly to air
pollution. EPA must then enact regulations establishing federal emissions limitations for the
industrial categories or subcategories of sources. EPA must review and revise these standards of
performance every eight years. States must submit to EPA a plan for implementing and .enforcing
the EPA-enacted standards of performance for new sources within their jurisdiction. A source is
subject to the NSPS if its construction or modification was commenced after the publication of the
proposed applicable NSPS.
1. Stationary Sources in General
Section lll(b) requires EPA to "list the categories of stationary sources that cause or
contribute significantly to air pollution that may be reasonably anticipated to endanger public health
or welfare." 42 U.S.C. § lll(b)(l)(A). Similarly, in determining priorities for promulgating
standards for major stationary sources, EPA must consider the extent to which, each pollutant may
reasonably be anticipated to endanger public health or welfare. 42 U.S.C. § lll(f)(2)(B). EPA can
promote environmental justice by considering whether certain stationary sources impact
communities of color or low-income communities in particular, and by considering fully the health
impacts of the emissions from those sources.
• Section lll(j) allows any person proposing to own or operate a new source to request an
EPA waiver from the new source performance standards with respect to any air pollutant, to
encourage the use of an innovative technological system or systems of continuous emission
reduction. 42 U.S.C. § 7411Q)(1)(A). A waiver will be granted if EPA determines that the owner or
operator of the proposed source has demonstrated that "the proposed system will not cause or
contribute to an unreasonable risk to public health, welfare, or safety .in its operation, function, or
malfunction." 42 U.S.C. § 7411®(l)(A)(iii). In addition to the reference to public health and
welfare, which allows consideration of a broad range of impacts on low-income communities and
communities of color, the provision states that the proposed system must not "contribute to"
unreasonable risk to public health and welfare. This language could allow EPA to consider
cumulative impacts when addressing the health risks to a community. See Lazarus & Tai at 634.
Under Section lll(g), a governor can petition EPA to add a category of stationary sources
to the list. 42 U.S.C. § lll(g)(2). If the category contributes significantly to air pollution that may
endanger public health or welfare, or if a new technology renders the current standard of
performance inadequate, EPA must list the category in the regulations. Id. Although states have
the authority and responsibility to petition EPA to add categories, EPA can consider whether the
category is of particular concern to low-income communities and communities of color when
granting or denying a petition.
2.
Solid Waste Incineration
Section 129 requires EPA to establish performance standards under Section.lll for each
category of solid waste incineration unit. 42 U.S.C. § 7429(a)(l). Section 129(a)(3) states that such
standards shall be based on "methods and technologies for removal or destruction of pollutants
110
-------
before, during, or after combustion, and shall incorporate for new units siting requirements that
minimize, on a site specific basis, to the maximum extent practicable, potential risks to public health
and the environment." 42 U.S.C. § 7429(a)(3) (emphasis added). This provision gives EPA
authority to establish a range of siting requirements designed to ensure that potential health risks to
low-income communities and communities of color from solid waste incinerator air emissions are
minimized, including consideration of cumulative impacts and meaningful community participation
procedures. See Lazarus & Tai at 632.
As part of the performance standards for solid waste incineration units, CAA Section 129(c)
requires EPA to promulgate regulations requiring the owner or operator of each unit to: (1) monitor
emissions "at a point at which such emissions are emitted into the ambient air . . . and at such other
points as necessary to protect public health and the environment;" (2) monitor "such other
parameters relating to the operation of the unit and its pollution control technology as the
Administrator determines are appropriate;" and (3) report the results of such monitoring. 42 U.S.C.
7429(c). The regulations must address the form and frequency of monitoring reports, and must
require that any monitoring reports or test results indicating the exceedance of any standard "be
reported separately and in a manner that facilitates review for purposes of enforcement actions." Id.
Copies of monitoring results must be maintained on file at the facility and be made available for
inspection and copying by interested members of the public during business hours. Id. These
provisions could be used to ensure that monitoring data is available to affected communities.
D. National Emission Standards for Hazardous Air Pollutants (NESHAPs)
The Clean Ak Act requires EPA to list the categories of sources of certain specified
hazardous air pollutants (HAPs). These categories are then divided into major sources and area
sources. Major sources are those stationary sources that emit up to ten tons per.year of any one
HAP or 25 tons per year of any combination of HAPs. Area sources are any stationary sources that
are not a major source or a motor vehicle. For the categories and subcategories that EPA lists, the
agency must establish emissions standards, known as NESHAPs, for each category of major source
and area source. Regulation of HAPs is especially important for protection of public health in
communities that are exposed to air pollution from multiple sources.
Section 112(c)(3) requires EPA to list each category or subcategory of area sources that the
agency "finds presents a threat of adverse effects to human health or the envkonment (by such
sources or in the aggregate) warranting regulation under this section." 42 U.S.C. § 7412(c)(3). Thus,
EPA could take into account aggregate impacts when identifying and listing area sources of
hazardous ak pollution emissions.
Section 112(d) requkes EPA to promulgate regulations establishing standards for each
category or subcategory of major sources and area sources of HAPs listed under CAA §112(c). 42
U.S.C. § 7412(d)(l). Such standards are known as maximum achievable control technology (MACT)
standards. MACT standards must requke the maximum degree of reduction in emissions of HAPs
that EPA determines is feasible for new or existing sources or for new categories, taking into
consideration the cost of such emissions reduction and any non-ak quality health and envkonmental
impacts and energy requkements,. 42 U.S.C. § 7412(d)(2). This provision gives EPA authority to
consider a potentially broad range of health and envkonmental impacts. The National
111
-------
Environmental Justice Advisory Council has suggested that the agency incorporate its Urban Ak
Strategy and related environmental justice goals (See Section II.E., below) into the MACT rule-
makings. See NATIONAL ENVIRONMENTAL JUSTICE ADVISORY COUNCIL, ENVIRONMENTAL
JUSTICE IN THE PERMITTING PROCESS, App. C (U.S. Environmental Protection Agency, pub., EPA
300-R-00-004, July 2000) [hereinafter "NEJAC Permitting Report"].
Section 112(f) requires EPA to investigate and report to Congress on (1) methods of
calculating the risk to public health from sources subject to NESHAP regulation, (2) the public
health significance of such risk and the methods and costs of reducing such risks, (3) the actual
health effects on persons living in the vicinity of sources, and (4) recommendations as to new
legislation regarding such risk. 42 U.S.C. § 7412(f)(l)-(2). If Congress does not act on any legislative
recommendation submitted in EPA's report, Section 112(f)(2) requires EPA to promulgate
standards for such categories of sources "if promulgation is required in order to provide an ample
margin of safety to protect public health or to prevent, taking into consideration costs, energy,
safety, and other relevant factors, an adverse environmental effect." 42 U.S.C. § 7412(f)(2).
EPA issued the Section 112(f)(2) report in 1999, but the report did not draw any conclusions
about the public health significance of residual risks. U.S. EPA, Residual Risk Report to Congress 3
(Mar. 1999). In addition, the agency made no legislative recommendations because it believes "the
legislative strategy embodied in the 1990 CAA Amendments provides the agency with the adequate
authority to address residual risks including those in urban environments." Id. EPA considers the
"adequate margin of safety" concept as an appropriate basis for determining the significance of and
managing any residual risks for individual source categories. Id. In setting the margin of safety
standard, the agency "strives to provide maximum feasible protection against risks to health from
hazardous air pollutants by . . .limiting to no higher than approximately 1 in 10,000 the estimated
risk that a person Living near a plant would have." Id. However, in making such determination,
"EPA has focused on cancer risks to humans," despite the recognition that "air toxics can cause
health effects other than cancer/' Id. The report stated that the agency is developing a policy
framework for management of non-cancer effects under the residual risk program. After
completing this policy, EPA could apply it to heavily impacted communities and thereby quantify
and eventually reduce the disproportionate risk levels in such communities.
Section I12(b)(2) requires EPA to review periodically the list of HAPs in order to add
"pollutants which present, or may present, through inhalation or other routes of exposure, a threat
of adverse human health effects . . .or adverse environmental effects whether through ambient
concentrations, bioaccumulation, deposition, or otherwise." 42 U.S.C. § 7412(b)(2). Likewise,
Section 112(b)(3) states that EPA must add a substance to the HAPs list on a showing by a
"petitioner or on the Administrator's own determination that the substance is an ak pollutant and
that emissions, ambient concentrations, bioaccumulation, or deposition of the substances are known
to cause adverse effects to human health or adverse envkonmental effects." 42 U.S.C. § 7412(b)(3).
The broad language contained in Section 112(b) gives EPA authority to consider a wide
range of health risks to communities of color and low-income communities.- In addition, the
provision allows EPA to review impacts on the envkonment that may be particularly important to
those communities that rely substantially on thek envkonment for food, fuel, and water.
112
-------
In determining priorities for promulgating NESHAPs, Section 112(e)(2) requires EPA to
consider "(A) the known or anticipated adverse effects of such pollutants on public health and the
environment; (B) the quantity and location of emissions or reasonably anticipated emissions of
[HAPs] that each category or subcategory will emit." 42 U.S.C. § 7412(e)(2). The broad language of
this provision - which requires consideration of "anticipated" health effects and the location of
emissions - gives EPA authority to consider health effects of particular concern to low-income
communities and communities of color in setting priorities for regulating HAPs.
E. Urban Area Source Program
The Urban Area Source Program, also referred to as the Urban Air Toxics Program or the
Urban Ak Strategy, is an EPA program to reduce hazardous air emissions in urban areas. Section
112(k) states that Congress finds that "hazardous air pollutants from area sources may individually,
or in the aggregate, present significant risks to public health in urban areas," and that ambient
concentrations in urban areas should be reduced, including a 75 percent reduction in cancer
attributable to these sources. 42 U.S.C. § 7412(k)(l).
This section of the Act directs EPA to conduct a research monitoring program of urban area
sources, focusing on the public health risks posed by hazardous air pollution and atmospheric
transformation. 42 U.S.C. § 7412(k)(2). After monitoring is complete, the section requires EPA to
submit to Congress a comprehensive strategy to control HAPs emissions in urban areas, and to
identify at least 30 pollutants that present the greatest risk to the public in the largest number of
urban areas, and the source categories emitting these pollutants. 42 U.S.C. § 112(k)(3). In addition,
the strategy must include a schedule of specific actions to substantially reduce the public health risks
posed by sources of hazardous air.pollutants in urban areas, must achieve a reduction in cancer
rates, must identify research needs in air monitoring and air modeling, and must make
recommendations for.changes in the law that would further these objectives. 42 U.S.C. §
7412(k)(3)(C)-(D).
EPA's report to Congress was completed in July 2000. U.S. EPA Office of Ak and
Radiation & U.S. EPA Office of Ak Quality Planning and Standards, National Ak Toxics Program:
The Integrated Urban Strategy (July 2000). The strategy explicitly sets a goal to "address
disproportionate impacts of ak toxics hazards across urban areas, such as those in areas known as
hot spots and low-income communities in urban areas." Id. at ES-2. The strategy has four
components: (1) standard setting at both the national and local levels; (2) initiatives at both the
national and local level to address specific pollutants and to identify and address specific community
risks; (3) ak toxics assessments to identify areas of concern, to prioritize efforts to reduce risks, and
to track progress; and (4) education and outreach efforts to inform stakeholders about the strategy
and to get input into designing programs to implement it. Id. at ES-3.
As required by Section 112, the strategy identifies 33 HAPs that pose the greatest threats to
public health in urban areas. Id. at ES-4. The strategy outlines a tiered standard setting process for
urban area sources that includes requiring maximum achievable control technology or generally
available control technology, and calls for greater reductions in HAPs from motor vehicles. Id. at 4-
3 to 4-11. To address disproportionate risks that may exist between different cities, neighborhoods,
or demographic or similarly exposed groups, the strategy states that "more refined modeling will
113
-------
generally be needed to evaluate localized disparities within any one urban area." Id. at 5-23. For
this reason, the ability of EPA or state and local authorities to assess localized risk disparities will
depend on the availability of detailed data on emissions and population distribution, local-scale
models, and sufficient resources. Id. at 5-23.
EPA's implementation of the Urban Air Toxics Program can aid in reducing risks to low-
income communities and communities of color from HAPs in urban areas. After EPA conducts the
assessments necessary to identify localized disparities, the agency could set standards specifically
targeted at reducing disproportionate health risks in affected communities. The program could
potentially provide states with a better understanding of public health impacts when making
permitting decisions. See generally NEJAC Permitting Report at 1-293-297 and App. C.
F.
Mobile Source Standards
Along with stationary sources and area sources, the CAA regulates emissions from mobile
sources. Title II of the Act authorizes EPA to regulate emissions from automobiles, trucks, buses,
aircraft, and nonroad engines, such as marine engines and handheld engines. The agency may also
regulate gasoline and other engine fuels under CAA Tide II. In addition, the Act sets standards for
the emissions of hydrocarbons, carbon monoxide, and nitrogen oxides from light-duty vehicles, and
grants EPA broad discretion to set standards for other pollutants from these and other mobile
sources. Generally, in setting mobile source standards, the criterion most relied upon is the
technological feasibility of achieving the promulgated emissions limit.
1. Motor Vehicle and Heavy-Duty Ttuck Emissions
Section 202(a)(l) states that EPA shall prescribe and revise "standards applicable to the
emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle
engines, which [in EPA's judgment] cause, or contribute to, air pollution which may reasonably be
anticipated to endanger public health or welfare." 42 U.S.C. § 7521 (a). Similarly, Section
202(a)(3)(B) states that on the basis of available information "concerning the effects of air
pollutants emitted from heavy-duty vehicles or engines and from other mobile source related
pollutants on the public health and welfare," EPA "may promulgate regulations . . . applicable to
classes or categories of heavy-duty engines." 42 U.S.C. § 7521(a)(3)(B). Studies demonstrate that
children living near highways in urban areas have poorer lung function than children living in
cleaner areas. See U.S. EPA, Public Hearings Regarding Control of Ak Pollution from New Motor
Vehicles 16 (2000). Since low-income communities and communities of color in urban areas are
often located next to highways and urban roads, EPA can promote environmental justice by
ensuring that emissions standards under Section 202 are designed to protect those living in close
proximity to roads.
2.
Mobile-Source-Related Air Toxics
Section 2020 requires EPA to promulgate and from time to time revise regulations
containing "reasonable requirements" to control HAPs emissions from motor vehicles and motor
vehicle fuels. 42 U.S.C. § 75210. These regulations must contain standards that reflect "the
greatest degree of emission reduction achievable through the application of technology" taking into
114
-------
consideration established standards, available technology, cost, noise, energy, and safety. Id. EPA
stated in the Urban Air Toxics Strategy that it wants to consider the disproportionate impacts of air
toxics in areas, known as hot spots, that have elevated pollutant levels that could be associated with
serious health risks. (See Section II.E., above.) In addition, states have identified such hot spots as
an issue of environmental justice. See U.S. EPA, Control of Emissions of Hazardous Ak Pollutants
from Mobile Sources; Proposed Rule, 65 Fed. Reg. 4.8057 (Aug. 4, 2000).
Mobile-source-related air toxics can play a significant role in the creation of hot spots in low-
income communities and communities of color. For instance, residents of the predominantly
African American and Latino neighborhoods of Harlem and Washington Heights in Manhattan
have stated that their health is profoundly affected by the numerous mobile sources in their
neighborhoods. The neighborhoods contain a marine transfer station that attracts 200 heavy duty
trucks daily, a port authority bus station, and a diesel fuel rail line. In addition, they border three
highways and the Triborough and George Washington Bridges, over which millions of cars pass
each year. To address such mobile-source-affected hot spots, EPA could use the Section 202(7)
authority to conduct risk characterizations of air toxics and develop approaches to address methods
of reducing mobile-source-related air toxics emissions in heavily impacted areas. U.S. EPA, Public
Hearings Regarding Control of Ak Pollution from New Motor Vehicles: Proposed Heavy-Duty
Engine and Vehicle Standards and Highway Diesel Fuel Sulfur Control Requkements (June 19,
2000).
3. Regulation of Fuels
CAA Section 211(c)(l) states that EPA may control or prohibit the manufacture,
introduction, or sale of any fuel or new fuel additive for use in a motor vehicle, motor vehicle
engine, or non-road engine or non-road vehicle if in EPA's' judgment "any emission product of such
fuel or fuel additive causes, or contributes, to ak pollution which may be reasonably anticipated to
endanger the public health or welfare." 42 LJ.S.C. § 7545(c)(l). Similarly, Section 211(i) regulates
diesel fuel, and Section 211(k) requkes EPA to promulgate regulations "establishing requkements
for reformulated gasoline to be used in gasoline fueled vehicles in specified nonattainment areas."
42 U.S.C. §§ 7545(i), 7545(k)(l). Such regulations requke "the greatest reduction in emissions of
ozone forming volatile organic compounds and emissions of toxic ak pollutants . . . achievable
through the reformulation of conventional gasoline, taking into consideration . . . any non-ak-quality
and other ak-quality related health and envkonmental impacts . . . ." Id. Section 211(b)(2)(A)
states that for the purpose of registration of fuels and fuel additives, "the Administrator may also
requke the manufacturer of any fuel or fuel additive ... to conduct tests to determine potential
public health effects of such fuel or additive (including, but not limited to, carcinogenic, teratogenic,
or mutagenic effects.)" 42 U.S.C. § 7545(b) (2) (B).
Many low-income communities and communities of color are surrounded by highways, close
to diesel fuel transportation centers, and home to numerous truck fleets. See U.S. EPA, Public
Hearings Regarding Control of Ak Pollution from New Motor Vehicles 16 (2000). CAA Section
211's fuel and fuel additive, diesel fuel, and reformulated gasoline provisions give EPA authority to
impose stricter standards on emissions from fuels, thereby reducing the harmful impacts within hot
spots. For example, EPA recently adopted new sulfur content requkements for diesel fuel designed
115
-------
to reduce significantly emissions of sulfur dioxide, nitrogen oxide, and other air toxics from diesel
engines. 66 Fed. Reg. 5002 ([an. 18, 2001), codified in 40 C.F.R. Parts 69, 80, & 86.
4.
Urban Bus Standards
Section 219(a) requires EPA to promulgate motor vehicle emission standards for urban
buses for the model year 1994 and thereafter. 42 U.S.C. § 7554(a). The standards would require
particulate matter emissions (PM) from urban buses not to exceed 50 percent of the emissions of
PM generally allowed under Section 202's standard. Id. If EPA determines that urban buses are not
complying with this standard, Section 219(c)(2) directs EPA to require (in addition to compliance
with the PM standards) that all new urban buses in metropolitan areas with a 1980 population of
750,000 or more operate on low-polluting fuels. 42 U.S.C. § 7554(c)(2). Section 219(c)(2)(C)
allows EPA to extend Section 219(c)'s PM and low-polluting fuel requirements to metropolitan
areas with a 1980 population of less than 750,000 if it would result in a significant public health
benefit. 42 U.S.C. § 219(c)(2)(C). EPA could promote environmental justice in part by considering
the health impacts of bus emissions on low-income communities and communities of color when
deciding whether to extend the urban bus PM and clean fuel requirements to the many large cities
that currently are not required to comply.
G.
Hazardous Substance Accident Prevention
Section 112(r)(7)(B)(ii) provides that the Section 112(r) regulations "shall require the owner
or operator of stationary sources at which a regulated substance is present in more than threshold
quantity to prepare and implement a risk management plan to detect and prevent or minimize
accidental releases of such substances from the stationary source, and to provide a prompt
emergency response to any such releases in order to protect human health and the environment."
42 U.S.C. § 7412(r)(7)(B)(ii). These regulations require the risk management plan to include a
description of the source's processes and an estimation of the population within a certain radius of
the source for accident and emergency purposes. 40 C.F.R. §§ 68.12(a), 68.22, 68.30. EPA can
require that these plans take into account the socio-economic and cultural identity of the
surrounding area in order to help ensure that the response plan will be effective. For example, a
plan should reflect whether the primary language of the surrounding community is a language other
than English.
III. PERMITTING AND OTHER APPROVALS
The Act's federal emissions standards and state implementation plans require the use of
permits to control the amount and type of air emissions from certain sources. The CAA provides
for several individual permit programs addressing specific types of pollutant emissions and sources.
The new source review (NSR) permit program requires the owner or operator of a new source to
show that the source will comply with the relevant SIP or federal implementation plan and will not
cause or contribute to any NAAQS violation. 42 U.S.C. § 7410(a)(2)(C). In addition, if EPA
designates an area as a nonattainment area for a particular criteria air pollutant, permits are required
for construction and operation of new or modified major stationary sources within the
nonattainment area. 42 U.S.C. § 7502(c)(5).
116
-------
Likewise, the prevention of significant deterioration (PSD) permit program requires a new or
modified major source to obtain a permit when it has the potential to emit a designated pollutant in
an attainment area for that pollutant and, consequently, would contribute to concentrations of the
pollutant in the area. 42 U.S.C. § 7470(1); 40 C.F.R. § 51.165(b). The acid deposition and control
program requires sources to comply with prescribed sulfur dioxide and nitrogen oxide emissions
limitations by specified deadlines. 42 U.S.C. §7651 (a). However, unlike other permit programs, the
acid deposition control program authorizes a sulfur dioxide allowance trading program under which
sulfur dioxide emissions limitations may be transferred between sources. 42 U.S.C. § 7651b.
Generally, permits are issued by the states. In the case of individual permitting programs
that have not been adopted in state implementation plans, or when states fail to carry out the CAA
satisfactorily, the permits are federal permits issued by EPA; EPA also has permitting authority over
tribal lands. To effectively manage the individual permit programs and other CAA requirements
applicable to a particular source, the CAA authorizes states or EPA to issue what is known as a Tide
V operating permit. Title V operating permits tie together the different requirements of the
individual CAA programs in a single permit issued to a source. 42 U.S.C. § 7661a. Thus, the Title V
operating permit serves as a tool for implementing the requirements of the SIP program and the
NSR, PSD, nonattainment, HAPs, and Subchapter IV acid rain programs. A Title V permit usually
specifies the pollutants to be released, how much may be released, and the control measures the
source owner must take to reduce pollution.
This Part discusses how the CAA authorizes EPA to promote environmental justice under
each of the key permit programs: (a) Title V operating permits; (b) new source review permits; (c)
prevention of significant deterioration permits; and (d) the acid deposition and sulfur dioxide
allowance trading program.
A. Title V Operating Permits
Title V of the Clean Air Act facilitates regulation of air emissions from significant stationary
sources by establishing a single comprehensive permit that includes all of a facility's applicable CAA
requirements. EPA sets minimum, requirements for any permit program administered by a delegated
state or local agency; those programs must be. consistent with CAA Title V and may establish
additional or more stringent requirements. These minimum elements include monitoring and
reporting; a permit fee system; adequate personnel and funding; authority to issue, enforce,
terminate, modify, revise, or revoke permits; authority to collect civil penalties; adequate application
procedures; and public participation and information sharing. 40 C.F.R. § 70.4(b). The state must
incorporate these elements into a SIP and submit it to EPA for review. (For a discussion of SIPs,
see Part IV, below).
Section 110 (c) states that EPA must promulgate a federal implementation plan (FIP) within
two years after the agency finds that a state has failed to make a required submission or finds that a
state plan or plan revision does not satisfy the minimum criteria, or when the agency disapproves a
SIP in whole or in part. 42 U.S.C. § 7410(c). In developing a FIP, EPA would have the discretion
to take environmental justice issues into account in developing the plan's control measures. This
would allow EPA to consider environmental justice in permitting, siting, and approval of emissions .
sources within the region governed by the FIP. See Memorandum from Howard F. Corcoran, U.S.
117
-------
EPA Office of General Counsel, Environmental Justice Law Survey (Feb. 25,1994) [hereinafter
"OGC 1994 Memorandum"]. The Environmental Appeals Board has noted that where EPA has
permitting authority, the agency may consider environmental justice issues on a case-by-case basis
without issuing a generally applicable rule or guidance document. In re Ecoelectrica, 7 E.A.D. 56, 1997
WL 160751 at 9 n. 15 (1997) citing In re Chemical Waste Management of Indiana, 6 EA.D. 66, 78 (E.A.B.
1995), In re Envotech, L.P., 6 E.A.D., 260, 283 n.27 (E.A.B. 1996).
Even where states administer approved programs, EPA retains oversight authority and may
veto the issuance of permits sought by emissions sources. When a source applies for a permit, the
state program must provide EPA with a copy of the application. 42 U.S.C. § 7661d(a). If EPA
objects to the permit, it must provide the permitting authority and the permit applicant with a
statement of reasons for the objection. 42 U.S.C. § 7661d(b). If a state or local program fails to
remedy EPA's objection within 90 days, EPA shall issue or deny the permit. Id. Once a permit has
been issued, EPA may modify, terminate, or revoke the permit under appropriate circumstances. 42
U.S.C. § 7661d(c). Taken together, these provisions give EPA ongoing oversight authority that the
agency could use to ensure that state programs address environmental justice concerns, particularly
those related to enforcement and public participation, in the permitting process.
Section 505 (b) states that if EPA does not object in writing to the issuance of a permit, any
person may petition the EPA to object to the permit within 60 days after the expiration of a 45-day
review period. 42 U.S.C. § 7661d. The petition shall be based only on objections to the permit that
were raised with reasonable specificity during the public comment period. Id; EPA shall grant or
deny such petition within 60 days after the petition is filed, and any denial of a petition is subject to
judicial review. Id. If the petitioner demonstrates that the permit is not in compliance with the
requirements of CAA Title V, EPA shall issue an objection to the permit. Id. This section provides
EPA with another tool for identifying and addressing environmental justice issues in the Tide V
operating permit program.
In addition to enforceable emission limitations, a compliance schedule, and monitoring and
reporting requirements, Section 504(a) requires that any permit issued under a Tide V permit
program include other conditions necessary to assure compliance with applicable requirements,
including the requkements,of an applicable SIP. 42 U.S.C. § 7661c(a). Similarly, Section 504(b)
audiorizes EPA to prescribe procedures and methods for determining compliance and for the
monitoring and analysis of pollutants, and Section 504(c) requires permits to include inspection,
entry, monitoring, compliance, certification, and reporting requkements to assure compliance with
the permit's terms and conditions. 42 U.S.C. § 7661c(b)-(c).
As noted by prior commentators, this language may authorize EPA to impose, either directly
or indirectly, permit conditions that enhance the affected community's ability to ensure that the
facility complies with the law, including by allowing communities access to a source. Lazarus & Tai
at 638. EPA could impose permit conditions that require a source to provide a community group or
a local enforcement authority, such as a fire department, with relevant information regarding
emissions during a set period. This would allow local communities to oversee the source and its
compliance with air permits. Id. .. ,,-..-...
118
-------
CAA Section 504(b) establishes EPA's authority to promulgate monitoring requirements
for state programs, and these are further elaborated in regulations. 40 C.F.R. § 70.6(a)(3). Where
the applicable requirement does not require periodic testing or monitoring, the permit must include
"periodic monitoring sufficient to yield reliable data from the relevant time period that are
representative of the source's compliance with the permit." 40 C.F.R. § 70.6(a)(3)(i)(B). The permit
must incorporate all applicable record-keeping requirements, including records of required
monitoring information. 40 C.F.R. § 70.6(a)(3)(ii). The permit also must incorporate all applicable
reporting requirements and require submission of reports of any required monitoring, prompt
reporting of deviations from permit requirements, including those attributable to upset conditions as
defined in the permit, the probable cause of such deviations, and corrective action or preventative
measures taken. 40 C.F.R. § 70.6(a)(3)(iii)(A)-(B). By requiring monitoring, record-keeping, and
reporting by permitted sources, these provisions allow low-income communities and communities
of color access to information that potentially could lead to enforcement actions or citizen suits to
protect the communities' health and well being. EPA could interpret, implement, and enforce these
regulations to ensure that the data generated is relevant to these communities' concerns and
accessible by community members.
B. New Source Review (NSR) Permits
Along with other requirements, each SIP or FIP must contain a basic program for the
preconstruction review of major new sources. The program applies to any new source or
modification of a source that would significantly contribute to concentrations of any pollutant for
which a NAAQS has been established. 42 U.S.C. § 7503(a)(l)(B); 42 U.S.C. § 7410(a)(2)(C). It
requires the owner or operator of the proposed source to show that the source will adhere to the
SIP or FIP, and will not cause or contribute to any NAAQS violation. In addition, if EPA
designates an area as a nonattainmerit area for a particular criteria air pollutant, permits are required
for construction and operation of new or modified major stationary sources within the
nonattainment area. 42 U.S.C. § 7502(c)(5).
Section 173(a)(5) allows EPA and the states to issue NSR permits for constructing and
operating a new or modified stationary source if, among other things, an "analysis of alternative
sites, sizes, production processes, and environmental control techniques for the proposed sources
demonstrates that the sources' benefits significantly outweigh the environmental and social costs
imposed as a result of its location, construction, or modification." 42 U.S.C. § 7503(a)(5). This
broad language authorizes EPA to consider the impacts of siting a facility in a community of color
or a low-income community in the NSR process. Although "social costs" are not defined, the term
potentially encompasses a broad range of impacts of a facility on an overburdened community.
OGC 1994 Memorandum; Memorandum from Gary S. Guzy, U.S. EPA Office of General Counsel,
EPA Statutory and Regulatory Authorities Under Which Environmental Justice Issues May Be
Addressed in Permitting (Dec. 1, 2000) (hereinafter "OGC 2000 Memorandum"], at 11.
C. Prevention of Significant Deterioration (PSD) Permits
- States also operate "prevention of significant deterioration" programs in attainment areas in
order to prevent increased pollution. In 14 states that have not incorporated the PSD program into
their SIPs, the programs are federal programs. One stated purpose of the PSD program is to protect
119
-------
public health and welfare from any actual or potential adverse effect that may reasonably be
anticipated to occur from air pollution, even where this is attainment and maintenance of all
NAAQS. 42 U.S.C. § 7470(1). Under PSD review, a permit is required for any new or modified
source that has the potential to emit a designated pollutant in an attainment or unclassified area for
that pollutant and that would contribute significantly to concentrations of the pollutant in that area.
40 C.F.R. § 51.165(b). To obtain a PSD permit, an applicant must show that the source would meet
the emissions limitation for each pollutant subject to PSD regulation and would not cause or
contribute to a violation of the applicable limits on ak quality deterioration. 42 U.S.C. §§
165(a)(3)&(5).
Section 165 (a) (2) states that a proposed PSD permit for the construction of a major
emitting facility must be reviewed according to EPA regulations and a public hearing must be held
with opportunity for interested persons "to appear and submit written or oral presentations on the
ak quality impact of the source, alternatives thereto, control technology requkements, and other
appropriate considerations." 42 U.S.C. § 7475(a)(2). Such public hearings on PSD permits could
address envkonmental justice issues as one of the "appropriate considerations" provided for in the
Act. EPA could help ensure that low-income communities and communities of color have a
meaningful opportunity to present thek concerns. OGC 2000 Memorandum at. 11.
Section 165(e)(l) states that before the PSD permit review, the applicant must conduct an
analysis of the ambient ak quality at the proposed site and in areas that may be affected by emissions
from the facility, for each pollutant subject to regulation that will be emitted. 42 U.S.C. § 7475(e)(l).
Similarly, under Section 165(a)(7), an applicant for a PSD preconstruction permit must agree to
conduct monitoring to determine the effect that emissions from the facility may have, or are having,
on ak quality in any area that may be affected by emissions from such a source. 42 U.S.C. §
7475(a)(7). These analyses must include continuous gathering of ak quality monitoring data to
determine whether the facility will exceed the maximum allowable pollutant concentrations. The
data must be gathered over one year preceding the date of the permit application, unless a state
allows a shorter period, and the results of the analysis must be available at the time of the public
hearing on the application for the permit. 42 U.S.C. § 7475(e)(2).
D. Acid Deposition and Sulfur Dioxide Allowance Trading Program
The CAA requkes EPA to seek ways to reduce acid deposition and its threat to natural
resources, ecosystems, materials, visibility, and public health. 42 U.S.C. § 7651 (a). To achieve such
reductions, affected sources will be requked to comply with prescribed emission limitations by
specified deadlines. 42 U.S.C. § 7651 (b). These limitations may be met through alternative
methods, including participation in an emission allocation and transfer system that aims to reduce
annual emissions of SO2 by ten million tons and to reduce annual emissions of nitrogen oxides by
approximately two million tons from 1980 emission levels. Id. Electric utilities are targeted for
about 85 percent of this reduction. U.S. ENVIRONMENTAL PROTECTION AGENCY, Do THE ACID
RAIN SO2 REGULATIONS APPLY TO YOU? (U.S. Envkonmental Protection Agency, pub., EPA 430-
R-94-002, Feb. 1994). In Phase I of the program, 110 large generation sources had to reduce SO2
emissions after January 1,1995; Phase II began in the year 2000, when all regulated units became
subject to a cap on total SO2 emissions. 42 U.S.C. §§ 7651c, 7651d. A major part of the program is
its market-based system of emission allowances to reduce SO2 emissions. Each "allowance"
; 120
-------
authorizes the emission of up to one ton of SO2 during or after a specified calendar year. 42 U.S.C.
§7651a(3).
Under Section 403(b), allowances "may be transferred among designated representatives of
the owners of affected sources . . .and any other person who holds such allowances, as provided by
the allowance system regulation." 42 U.S.C. § 7651b(b). These regulations establish the allowance
system, including requirements for the allocation, transfer, and use of allowances. Id. Section .
403(d) requires EPA to promulgate a "system for issuing, recording, and tracking allowances." 42
U.S.C. § 7651b(d). Section 403(a) requires EPA to publish a proposed and final list of the basic
allowance allocations. 42 U.S.C. § 1751b(a).
EPA has been reviewing the possibility of creating similar trading programs for other
pollutants under the CAA, including toxic pollutants. To date, the proposed programs have been
criticized for having the potential to create disproportionate health impacts or toxic "hot spots" in
low-income communities and communities of color. See NEJAC Permitting Report at App. C. In a
resolution addressed to EPA, NEJAC set forth a number of recommendations for amending the
EPA economic incentive program regulations to address potential disproportionate impacts in
communities of color and low-income communities. Summary of the Meeting of the National
Environmental Justice Advisory Council (Nov. 30 - Dec. 2, 1999) A-4, available at
http://es.epa.gov/oeca/main/ej/nejac/past_nmeet.html (last modified Jan. 5, 2001).
IV. DELEGATION OF PROGRAMS TO STATES AND TRIBES
As noted earlier, after EPA promulgates a primary or secondary NAAQS for a pollutant,
states must submit an implementation plan to control that pollutant and enforce the NAAQS. 42
U.S.C. § 7410. Within their SIPs, states also adopt programs addressing other CAA requirements,
such as the PSD and NSR programs. 42 U.S.C. §§ 7410(a)(2)(I)&(J). Each state implementation
plan is adopted after notice and public hearing, and must include enforceable emission limitations,
control measures, and compliance schedules and enforcement programs necessary or appropriate to
meet the applicable requirements. 42 U.S.C. § 7410(a)(2)(A). In addition, states that are designated
marginal, moderate, serious, severe, or extreme areas for ozone or moderate or serious areas for
carbon monoxide attainment must submit a SIP to EPA. 42 U.S.C. §§ 7511c-7511e, 7512-7512a.
Within a year after a state program is submitted, EPA must approve or disapprove it, in
whole or in part. 42 U.S.C. § 7410(k)(2). If it disapproves, EPA must notify the state of any
necessary revisions, and the state must resubmit the program. 42 U.S.C. §7410(k)(5). If EPA
provides a partial approval, the state is still required to submit a fully approvable program and may
be sanctioned for failure to do so. 42 U.S.C. §7410(k)(3). If a program is not submitted within 18
months after the submission deadline or 18 months have passed since disapproval of the program,
EPA must sanction the state. 42 U.S.C. § 7509. If the state has no approved program two years
after the date required for submission, EPA must promulgate, administer, and enforce a federal
permit program. 42 U.S.C. § 7410(c).
121
-------
A. State Implementation of Specific Standards
1. NAAQS
CAA Section 110(k)(3) allows EPA to approve or disapprove a submitted SIP in full or in
part. 42 U.S.C. § 7410(k)(3). EPA must approve the SIP if it meets all of the applicable
requirements of the chapter. Id. When EPA finds that a SIP is "substantially inadequate to attain or
maintain the relevant NAAQS ... or to otherwise comply with the chapter, EPA shall require the
state to revise the plan as necessary to correct the inadequacies." 42 U.S.C. § 7410(k)(4). Section
110(J) states that each revision to a SIP shall be adopted only after "reasonable notice and public
hearing." 42 U.S.C. § 7410(1). 'These provisions give EPA authority to incorporate environmental
justice considerations into the SIP development and review process, and to ensure that states
implement federal standards and requirements consistently. See OGC 1994 Memorandum.
2. PSD Requirements
Section 161 states that "each applicable implementation plan shall contain emission
limitations and such other measures as may be necessary ... to prevent significant deterioration of
air quality in each region" designated as an attainment area or unclassifiable. 42 U.S.C. § 7471.
Prior to state redesignation of any PSD area, Section 164(b) states that notice shall be
afforded and public hearings shall be conducted in the areas proposed to be redesignated and in
areas which may be affected by the proposed redesignation. 42 U.S.C. § 7474(b)(l)(A). Prior to any
such public hearing, a satisfactory description and analysis of the health, environmental, economic,
social, and energy effects of the proposed redesignations shall be prepared and made available for
public inspection. Id. This section provides authority to ensure that the full range of impacts on
affected communities is considered prior to redesignation, and that a meaningful forum for
identifying community concerns takes place.
B. EPA Oversight and Discretionary Sanctions
Section 110(a)(2)(E) requires the SIP to provide necessary assurances that a state will have
adequate personnel, funding, and authority under state law to carry out the SIP (and is not
prohibited by any provision of federal or state law from carrying out such an implementation plan or
portion thereof). 42 U.S.C. 7410(a)(2)(E). It has been noted that EPA can advance environmental
justice goals by using this authority to ensure that individual SIPs comply with federal standards, and
potentially by implementing other related federal mandates and goals, such as Tide VI of the Civil
Rights Act or Executive Order 12898 on environmental justice. See Lazarus & Tai at 633.
Section 110(m) allows EPA to "apply any of the sanctions listed in [Section 179] at any time
... the Administrator makes a finding, disapproval, or determination ... in relation to any [SIP] or
[SIP] item . .. with respect to any portion of the State that the Administrator determines reasonable
and appropriate, for the purpose of ensuring the requirements of [the chapter] relating to such [SIP]
or [SIP] item are met." 42 U.S.C. § 7410(m). Similarly, Section 502(i) provides that if EPA
determines that a permitting authority is not adequately administering a program or portion thereof,
the agency may impose Section 179 sanctions against the state. 42 U.S.C. § 7661a(i).
122
-------
Section 179 sanctions include both highway sanctions and offset sanctions. 42 U.S.C. §
7509. Under highway sanctions, states lose significant federal highway funding and project
approval. Offset sanctions require a state to impose an emissions reduction ratio of at least two to
one for increased emissions when applying the offset emissions requirements of Section 173. These
sanctions could be a tool to ensure that particular environmental justice issues are addressed under
specific CAA permit programs. Likewise, EPA could make environmental justice a factor in
deciding whether and when to impose these discretionary sanctions. OGC 1994 Memorandum.
C. General State Implementation Plan Provisions
1.
State Boards
Section 128(a) requires each SIP to contain requirements that "any board or body which
approves permits or enforcement orders under [the CAA] shall have at least a majority of members
who represent the public interest. . . . " 42 U.S.C. § 7428(a)(l). EPA could promote environmental
justice by requiring any such boards to include individuals concerned with environmental justice
issues or who represent low-income communities or communities of color. See Lazarus & Tai at
639.
2.
Public Notification
Under Section 127(a), each SIP shall contain measures to notify the public "on a regular
basis of instances of areas in which any JNAAQS] is exceeded or was exceeded during any portion
of the preceding calendar year, to advise the public of the health hazards associated with such
pollution, and to enhance public awareness of the measures which can be taken to prevent such
standards from being exceeded and the ways in which the public can participate in regulatory and
other efforts to improve air quality." 42 U.S.C. § 127(a). Such measures may include posting
warning signs on interstate highway access points to metropolitan areas or television, radio, or press
notices. Id. EPA has authority to ensure that the, public notification measures contained in SIPs are
designed to make information accessible to communities of color and low-income communities.
V. ENFORCEMENT
Whenever EPA finds that a person has violated any requirement of an applicable SIP or
permit, the agency must notify the person and the state of such a finding. At any time after 30 days
following the date of notice of the violation, EPA may issue an order requiring the person to comply
with the plan or permit, issue an administrative penalty, or bring a civil action. This Part describes
briefly the central CAA enforcement authorities. For a fuller discussion of statutory enforcement
authorities for advancing environmental justice, see Chapter 5.
Section 113(b)(l) states when EPA can bring an enforcement action. When the alleged
violator is "any person that is the owner or operator of an affected source" the agency "shall, as
appropriate" commence a civil action or assess a civil penalty. 42 U.S.C. § 7413(b)(l). However,
when the violator is "any other person" the agency "may" commence a civil action or assess a civil
123
-------
penalty. Id. In either case, EPA has broad discretion in choosing when and where to bring an
enforcement action.
Section 113(e) states that in determining the amount of any penalty under Section 113 and
Section 304(a), EPA or a court must take into consideration "(in addition to such other factors as
justice may require) the size of the business, the economic impact of the penalty on the business, the
violator's full compliance history and good faith efforts to comply, the duration of the violation as
established by any credible evidence.. ., payment by the violator of penalties previously assessed for
the same violation, the economic benefit of noncompliance, and the seriousness of the violation."
42 U.S.C. § 7413(e)(l). EPA could potentially incorporate environmental justice concerns into these
factors, in particular the "duration" and "seriousness" factor, as a basis for enhanced penalties.
Section 113(g) states that "at least 30 days before a consent order or settlement agreement
of any kind under [the CAA] to which the United States is party ... is final or filed with a court, the
Administrator shall provide a reasonable opportunity by notice in the Federal Register to persons
who are not named as parties or intervener in the action or matter to comment in writing." 42
U.S.C. § 7413(g). EPA shall "promptly consider any such written comments and may withdraw or
withhold consent to the proposed order or agreement if the comments disclose facts or
considerations which indicate that such consent is inappropriate, improper, inadequate, or
inconsistent with the requirements of [the CAA]." Id. EPA or the Justice Department could
actively seek comments on proposed settlements from affected communities, which may yield
information that could bear on the appropriateness of a settlement, such as facts about exposure
patterns.
Section 303 states that EPA, on receipt of evidence that a pollution source or combination
of sources presents an imminent and substantial endangerment to public health, welfare, or the
environment, may bring suit to stop the emission of ak pollutants causing or contributing to such
pollution or to take such other actions as may be necessary. 42 U.S.C. § 7603. If it is not practicable
to assure prompt protection by commencing such a civil action, "EPA may issue such orders as may
be necessary to protect public health or welfare or the environment." 42 U.S.C. § 7603. Any order
issued by EPA under this section shall be effective upon issuance and shall remain in effect fo± a
period of not more than 60 days. Id. This authority allows the agency to take emergency action in
communities where a combination of pollutants, or a specific incident, reaches the "imminent and
substantial endangerment" threshold.
VI. INFORMATION GATHERING (RESEARCH, MONITORING,
AND REPORTING)
A. Monitoring
Many low-income communities and communities of color historically have lacked the
resources necessary to effectively monitor pollution sources in their communities. As a result,
communities have been limited in their ability to advocate federal or state enforcement or to bring
their own citizen suit enforcement actions. By requiring sources to monitor emissions and to share
that monitoring information with affected communities, EPA can provide these communities with
124
-------
the information and the means necessary to safeguard thek health and environment. In addition to
the monitoring requirements discussed above in connection with permitting, the Act creates a
number of opportunities for generating monitoring data.
/. Generally
For the purpose of developing or assisting in the development of any implementation plan,
standard of performance, emission standard, any solid waste combustion regulation, or any other
provision, Section 114(a) states that EPA may require any person who owns or operates any
emission source or who is subject to any CAA requirement to (1) establish and maintain records; (2)
make reports; (3) install, use, and maintain such monitoring equipment, and use audit procedures, or
methods; (4) sample emissions; (5) keep records on control equipment parameters, production
variables or other indirect data when direct monitoring of emissions is impractical; (6) submit
compliance certifications; and (7) provide such other information as the EPA may reasonably
require. 42 U.S.C. § 7414(a)(l)(A)-(G). Moreover, Section 114(c) states that "any records, reports,
or information obtained under [Section 114(a)] shall be available to the public," except where there
is a showing that the information at issue is entitled to protection as a trade secret. 42 U.S.C. §
114(c). EPA could use this broad authority to ensure generation of information from facilities
located near low-income communities and communities of color and to ensure its effective
dissemination within those communities.
2. Accidental Release Monitoring
Section 112(r)(7) states that in order to prevent accidental releases of regulated substances,
EPA is authorized to promulgate release prevention, detection, and correction requirements, which
may include monitoring, record-keeping, reporting, training, equipment, etc. 42 U.S.C. §
7412(r)(7)(A). Such regulations must make distinctions between various types, classes, and kinds of
facilities, taking into consideration factors including the size and location of the facility. Id. EPA
thus has authority to consider whether a facility is located in a community of color or low-income
community, or other heavily impacted area, when establishing the types of monitoring requirements
that are needed to prevent and address accidental releases.
3. Enhanced Monitoring and Compliance Certifications
Section 114(a)(3) authorizes EPA to require enhanced monitoring and submission of
compliance certifications. 42 U.S.C. § 7414(a)(3). Compliance certifications .shall include: (A)
identification of the applicable requirement that is the basis of the certification, (B) the method used
for determining the compliance status of the sources, (C) the compliance status, (D) whether
compliance is continuous or intermittent, and (E) such other facts as EPA may require. Id.
Compliance certifications and monitoring data are subject to Section 114(c), which states that "any
records, reports, or information obtained under [Section 114(a)] shall be available to the public,"
except where there is a showing that the information at issue is entitled to protection as a trade
secret. 42 U.S.C. § 114(c). Here again, specific compliance data could be required from facilities
located near low-income communities and communities of color and disseminated widely in those
communities.
125
-------
4. State Implementation Plan Monitoring Requirements
Section 110(a)(2)(B) requites "each implementation plan submitted by a state" to "provide
for the establishment and operation of appropriate devices, methods, systems, and procedures
necessary to monitor, compile, and analyze data on ambient air quality." 42 U.S.C. § 110(a)(2)(B).
Likewise, Section 110(a)(2)(F) allows EPA to requite SIPs to include "the installation,
maintenance, replacement, and implementation of other necessary steps, by owners of operators of
stationary sources to monitor emissions from such sources," 42 U.S.C. § 110(a)(2)(F), and Section
110(a)(2)(K) requires SIPs to provide for air quality modeling. 42 U.S.C. § 7410(a)(2)(K). Each of
these monitoring and modeling requirements could be adjusted to consider cumulative exposures,
sensitive populations, and other issues of concern to communities of color and low-income
communities.
5. Great Lakes, Chesapeake Bay, and Lake Champlain Monitoring
Section 112(m) requires EPA to monitor and research the public health effect of acid
deposition in the Great Lakes, Chesapeake Bay, and Lake Champlain, and to submit to Congress a
biennial report on the results of the monitoring. 42 U.S.C. § 7412(m). The report must include an
assessment of "the environmental and public health effects," 42 U.S.C. § 7412(m)(5)(B), and EPA
must also determine whether other CAA provisions are adequate to prevent adverse public health
and environmental effects, including effects resulting from "indirect exposure pathways, associated
with atmospheric deposition," and take into consideration the tendency of pollutants to
bioaccumulate. 42 U.S.C. § 7412(m)(6). Based on the report, EPA must promulgate further
emission standards or control measures necessary to prevent such effects. Id. Section 112(m)(3)
requires EPA to establish a Great Lakes atmospheric deposition monitoring network, and also to
establish Chesapeake Bay and Lake Champlain monitoring stations. 42 U.S.C. § 7412(m)(3). Given
this broad authority, EPA can collect information relevant to the communities that depend on these
water resources for fishing and other uses.
B. Research and Development
1.
Generally
The CAA requites EPA to establish a national research and development program for
prevention and control of air pollution. As part of this program, Section 103 (a) (1) authorizes the
agency "to conduct and promote the coordination and acceleration of research, investigations,
experiments, demonstrations, surveys and studies relating to the causes, effects (including health and
welfare effects), extent, prevention, and control of ak pollution." 42 U.S.C. § 7403(a)(l). In
conducting such research, EPA could promote environmental justice by targeting program resources
to research the health and welfare effects of ak pollution on low-income communities and
communities of color.
Similarly, Section 103 (a) (3) requkes EPA "to conduct investigations and research and make
surveys concerning any specific problem of ak pollution" in cooperation with any state ak pollution
control agency if EPA is requested to do so or if in the agency's judgment such a problem may
affect communities in another state. 42 U.S.C. § 7403(a)(3). Under this provision, EPA could
126
-
-------
investigate, research, and survey problems of concern to communities of color and low-income
communities.
In carrying out the research and development authorized by Section 103(a), Section 103(b)
states that EPA is authorized to, among other things, collect and make available research results
including recommendations; cooperate with other federal departments and air pollution control
agencies, private agencies, institutions, organizations, and industries; make grants to air pollution
control agencies, institutions, organizations, and individuals for the purposes of research and
development for the prevention of air pollution; and collect and disseminate basic data on chemical,
physical, and biological effects of varying air quality and other information pertaining to air pollution
and the prevention and control thereof. 42 U.S.C. § 7403(b). This section authorizes EPA to work
with communities in carrying out research, and to ensure that the results of the research are
disseminated to affected communities.
Section 103(d) requires EPA, in consultation with the Department of Health and Human
Services, to conduct a research program on the short-term and long-term effects of air pollutants,
including wood smoke, on human health. 42 U.S.C. § 7403(d). In conducting such'research, the
agency "shall conduct studies, including epidemiological, clinical, and laboratory and field studies, as
necessary to identify and evaluate exposure to and effects of air pollution." 42 U.S.C. § 7403(d)(A).
In conducting this research, EPA must develop methods and techniques necessary to identify and
assess the risks to human health from both routine and accidental exposures to individual air
pollutants and combinations thereof. 42 U.S.C. § 7403(d)(3).
The research program must include an evaluation of each hazardous air pollutant to decide
its relative priority for preparation of environmental health assessments. These are based ori
reasonably anticipated toxicity to humans and exposure factors such as frequency of occurrence as
an air pollutant and volume of emissions in populated areas. 42 U.S.C. § 7403(d)(B). The
envkonmental health assessments "shall include: (1) an examination of the available toxicological
and epidemiological information for the pollutant to ascertain the levels of human exposure that
pose a significant threat to human health and the associated acute, subacute, and chronic adverse
health effects; (2) a determination of gaps in available information related to human health effects
and exposure levels; and (3) where appropriate, an identification of additional activities, including
toxicological and inhalation testing, needed to identify the type or levels of exposure that may
present a significant risk of adverse health effects in humans." 42 U.S.C. § 7403(d)(C)(i)-(iii). Since
many low-income communities and communities of color, especially rural communities, rely on
wood as a primary fuel for heating and cooking, EPA can use this study in part to quantify health
effects on such communities.
2. Ait Toxics Research
Section 1120(3) states that EPA "shall establish and maintain an ak toxics clearinghouse
and center to provide technical information and assistance to State and local agencies and, on a cost
recovery basis, to others on control technology, health and ecological risk assessment, risk analysis,
ambient monitoring and modeling, and emissions measurement and monitoring." 42 U.S.C. §
7412(^(3). EPA also must use the authority of Section 103 to examine methods for preventing,
measuring, and controlling emissions and evaluating associated health and ecological risks. Id.
127
-------
Where appropriate, such activity shall be conducted with not-for-profit organizations. Id. All
information collected under Section 112(/)(3) shall be available to the public. Id. Likewise, Section
112(p) requires EPA to oversee the establishment of a National Urban Air Toxics Research Center
"capable of undertaking and maintaining similar research capabilities in the areas of epidemiology,
oncology, toxicology, pulmonary medicine, pathology, and biostatistics." 42 U.S.C. § 7412(p).
These research efforts could be directed to specific toxic pollutants of concern to low-income
communities and communities of color.
VII. FINANCIAL ASSISTANCE
Section 103(a)(2) requires EPA to "encourage, cooperate with, and render technical
services and provide financial assistance to ak pollution control agencies and other appropriate
public or private agencies, institutions, and organizations, and individuals in the conduct of such
activities" for the prevention and control of ak pollution. 42 U.S.C. § 7403(a)(2). Thus, community
groups and individuals should be able to seek out and receive technical and financial aid from EPA
in activities aimed at preventing and controlling ak pollution. This type of aid could, for example,
help organizations and individuals in collecting information, clarifying test results, and/or
purchasing monitoring equipment.
Section 104(a) states that EPA must give special emphasis to research and development
into new and improved methods with industry-wide application for the prevention and control of ak
pollution resulting from combustion of fuels. 42 U.S.C. § 7404(a). "In furtherance of such research
and development [the Administrator] shall... provide for Federal grants to public or nonprofit
agencies, institutions, and organizations and to individuals, and contracts with public or private
agencies, institutions, or persons for payments of... part of the cost of acquking, constructing, or
otherwise securing for research and development purposes, new or improved devices or methods
having industry wide application of preventing or controlling discharges into the ak of various types
of pollutants." 42 U.S.C. § 7404(a)(2).
Under Section 105, EPA may make grants to state ak pollution control agencies for the
prevention and control of ak pollution or implementation of NAAQS. 42 U.S.C. § 7405. The
section requkes the agency
[bjefore approving any planning grant.. .to receive assurances that the [ak control
agency receiving the grant] has the capability of developing a comprehensive ak
quality plan for the ak quality control region, which plan shall include (when
appropriate) a recommended system of alerts to avert and reduce the risk of
situations in which there may be imminent and serious danger to the public health or
welfare from ak pollutants and the various aspects relevant to the establishment of
ak quality standards for such ak quality control region, including the concentration
of industries, other commercial establishments, populations and naturally occurring
factors which shall affect such standards.
128
-------
42 U.S.C. § 7405(a)(3). EPA could use this provision to condition grant assistance on consideration
of cumulative impacts in the planning process for establishing air quality standards, and on
considering demographic factors in developing the recommended system of alerts.
129
-------
130
-------
CHAPTER 12
RESOURCE CONSERVATION AND RECOVERY ACT ("RCRA")
42U.S.C.
The Resource Conservation and Recovery Act of 1976 (RCRA) is the primary federal law
regulating the management and disposal of solid waste. Among other things, it establishes a "cradle-
to-grave" system for regulating hazardous waste from its generation through its storage, transport,
and ultimate disposal (Subtitle C), and addresses non-hazardous solid waste, with primary
responsibility for implementation resting with the states (Subtitle D). The original 1976 Act was
enhanced and strengthened by the Hazardous and Solid Waste Amendments of 1984.
The siting of hazardous and solid waste facilities has long been an important environmental
justice issue. One of the first cases to focus national attention on these issues was the siting of a
PCB (polychlorinated biphenyl) landfill in a predominantly African-American community in Warren
County, North Carolina in 1982. See Paul Mohai & Bunyan Bryant, Race, Poverty and the Environment,
18 EPA JOURNAL 6 (March/April 1992); Robert Bullard, Environmental Justice in the 21st Century,
available at http://www.ejrc.cau.edu/ejinthe21 century.htm (last visited Nov. 9,. 2001). RCRA directly
addresses the health and environmental risks posed by waste disposal activities. Implementation of
specific RCRA provisions to address environmental justice issues necessarily requires consideration
of many political, technical, legal and other factors. This chapter seeks to provide a foundation for
such inquiry in the future by offering a review of key statutory authorities that provide potential
opportunities for incorporating environmental justice goals in EPA decision-making under the Act.
Part I of the chapter outlines RCRA policy goals and objectives that lend support to
environmental justice initiatives. Part II discusses EPA's standard setting and rule-making authority
under RCRA, concentrating on hazardous waste regulation; it focuses most closely on the agency's
authority to set standards for hazardous waste treatment, storage, and disposal facilities. Part III
discusses EPA's permitting authority under RCRA, again focusing primarily on requirements for
treatment, storage and disposal facilities. Part IV addresses EPA's delegation of RCRA regulatory
authority to state governments, examining both EPA's extensive authority to regulate hazardous
wastes through its approval of state hazardous waste management plans and the comparatively large
delegation of authority to the states to regulate non-hazardous solid wastes. Finally, Parts V-VII
discuss opportunities for advancing environmental justice through RCRA's enforcement,
information gathering, and financial assistance provisions.
I.
GENERAL PROVISIONS
RCRA contains a number of congressional findings, objectives, and policies related to
hazardous and non-hazardous waste. While these statements do not create binding obligations on
EPA, they can be useful in supporting the agency's environmental justice initiatives under other,
substantive provisions of the statute.
131
-------
Section 1001(a)(3) contains a congressional finding "that the continuing concentration of
our population in expanding metropolitan and other urban areas has presented these communities
with serious financial, management, intergovernmental, and technical problems in the disposal of
solid wastes resulting from the industrial, commercial, domestic, and other activities carried on in
such areas." 42 U.S.C. § 6901(a)(3). This recognition of the special problems of urban areas might
support EPA efforts to target pockets of higher environmental risk within urban areas.
Section 1001(a)(4) finds "that while the collection and disposal of solid wastes should
continue to be primarily the function of State, regional, and local agencies," federal leadership and
technical and financial assistance is necessary to promote "the development, demonstration, and
application of new and improved methods and processes to reduce the amount of waste and
unsalvageable materials and to provide for proper and economical solid waste disposal practices."
42 U.S.C. § 6901 (a)(4). This finding might support efforts to address a variety of environmental
justice issues, including the siting and regulation of solid waste management sites in communities of
color and low-income communities. These efforts could be based, at least in part, on the broad
language encouraging EPA to help develop and put into practice "new and improved methods and
processes ... to provide for proper and economical waste disposal practices."
Section 1001(b)(2) finds that "disposal of solid waste and hazardous waste in or on the land
without careful planning and management can present a danger to human health and the
environment." 42 U.S.C. § 6901 (b)(2). This emphasis on "careful planning" might encompass
front-end planning for the siting of hazardous waste sites, something that is important to safe
management of hazardous waste in general, and to heavily impacted communities in particular.
According to Section 1003(a), RCRA is designed "to promote the protection of health and
the environment and to conserve valuable material and energy resources." 42 U.S.C. § 6902(a). The
language "protection of health and the environment," which appears here and in various forms
throughout the statute, is flexible enough to support a wide range of initiatives. Envkonmental
justice issues, particularly those that directly impact the health of communities, would fit within this
language. Section 1003(a) also lists eleven types of actions that Congress expected EPA to take in
implementing RCRA, including technical and financial assistance, training, and waste minimization.
Id. These actions, which are augmented by additional authority throughout the Act, provide
opportunities for integrating environmental justice concerns into EPA's administration of the RCRA
program.
Finally, Section 1003(b) "declares it to be the national policy of the United States that,
wherever feasible, the generation of hazardous waste is to be reduced or eliminated as expeditiously
as possible." 42 U.S.C. § 6902(b). This call for pollution prevention in general adds weight to
EPA's more specific waste reduction efforts. Pollution prevention could be one component of a
larger slate of measures aimed at reducing risk in heavily impacted communities.
II. STANDARD SETTING/RULE-MAKING
RCRA and its implementing regulations create a two-tiered system of waste management.
Wastes deemed "hazardous" face a full array of EPA command-and-control regulation under
132
-------
Subtitle C of the Act, including standards applicable to waste generators, transporters, and
treatment, storage, and disposal facilities. Wastes that do not fit that definition receive more lenient
treatment under the solid waste provisions in Subtitle D, which is primarily implemented by the
states. Each of the subtitles is discussed below.
*A. EPA's General Authority to Issue Regulations Under RCRA
Section 2002(a)(l) empowers the EPA Administrator to issue regulations "necessary to
carry out his functions" under the Act. 42 U.S.C. § 6912(a)(l). This is a substantial conferral of
authority to EPA; courts have held that the agency has considerable discretion to deem what is
"necessary" for carrying out the Act. As discussed in Chapters One and Two, EPA generally has
broad discretion in determining what measures are "necessary" under, such open-ended grants of
authority. Thus, if EPA deems a specific measure necessary to protect human health or the
environment or to carry out its functions generally, courts likely will defer to the agency's judgement.
This legislative grant of power could support EPA's ability to take actions that include the
protection of health and environmental quality in low-income communities and communities of
color.
B. Hazardous Waste Regulation
1. Hazardous Waste Identification and Listing
RCRA Section 1004(5) defines the term "hazardous waste" expansively to include any solid
waste "which because of its quantity, concentration, or physical, chemical, or infectious
characteristics may: (A) cause, or significantly contribute to an increase in mortality or an increase in
serious irreversible, or incapacitating reversible, illness; or (B) pose a substantial present or potential
hazard to human health or the environment when improperly treated, stored, transported, or
disposed of, or otherwise managed." 42 U.S.C. § 6903(5).
Section 3001 instructs EPA to identify hazardous wastes subject to Subtitle C by using two
different methods: (1) according to its hazardous characteristics, or (2) by listing particular hazardous
wastes. A solid waste is classified as a hazardous waste and regulated under Subtitle C if it either
exhibits one of the defined hazardous characteristics or it is listed as a hazardous waste, unless it is
categorically exempted under the RCRA regulations. 42 U.S.C. § 6921. In promulgating its criteria
for hazardous characteristics and listed wastes, EPA is directed to take into account factors such as
toxicity, persistence, degradability in nature, potential for accumulation in tissue, flammability,
corrosiveness, and other hazardous characteristics. 42 U.S.C. §6921 (a).
This determination raises environmental justice issues, as it requires EPA to determine the
waste's health impact on humans — which inevitably involves a determination of which population
or sub-population of humans to base the standard upon. For example, in determining a waste's
"toxicity" or "potential for accumulation in tissue," EPA must determine whether its "standard"
human subject would be taken from the general population, a sensitive population, or a population
that faces disproportionate exposure to the waste or cumulative exposures to it and other kinds of
wastes. By including these types of factors in its determination, EPA can further environmental
133
-------
justice in its identification of hazardous wastes and their inclusion in the more restrictive Subtitle C
regime.
2.
Generator Standards
Section 3002(a) directs EPA to issue regulations applicable to generators of hazardo'us
waste "as may be necessary to protect human health and the environment." 42 U.S.C. § 6922(a).
This broad grant of authority is supplemented by congressional mandates for standards on record-
keeping practices, labels and containers, manifesting, and biennial reporting. 42 U.S.C. § 6922(a)(l)-
(6). EPA thus has authority under this section to provide targeted information to the public about
wastes generated in their communities through record-keeping and biennial reporting, and to
thereby assist communities in participating in decisions about waste generation and regulatory
activities in their neighborhoods.
Section 3002(b) requires generators to certify that they have "a program in place to reduce
the volume or quantity and toxicity" of their wastes. Generators also must certify that the proposed
method of treatment, storage, or disposal "minimizes the present and future threat to human health
and the environment." 42 U.S.C. § 6922(b). This health-based language supports consideration of
environmental justice concerns; for example, the process of certifying proposed methods of
treatment, storage, or disposal could include an examination of the surrounding community to
account for possible cumulative risks and synergistic effects.
3. Transporter Standards
Section 3003 (a) directs the agency to develop regulations applicable to hazardous waste
transporters "as may be necessary to protect human health and the environment." 42 U.S.C. §
6923 (a). These regulations must include, "but need not be limited to" requirements for record-keeping,
labeling, and manifesting. Id. (emphasis added). EPA must consult with the U.S. Department of
Transportation (DOT) before issuing transporter regulations, and under Section 3003(b), the
agency also may recommend that the DOT issue new rules under the Hazardous Materials
Transportation Act. 42 U.S.C. § 6923(b). EPA could use this section to address environmental
justice concerns about how hazardous wastes are transported through population centers, either by
issuing its own rules or by recommending that the DOT do so.
4. Treatment, Storage and Disposal Facilities Standards (TSDFs)
Section 3004(a) likewise authorizes EPA to issue standards for waste treatment, storage,
and disposal facilities "as may be necessary to protect human health and the environment." 42
U.S.C. § 6924(a). Paralleling the language of Section 3003, Section 3004(a) states that the particular
standards to be issued "need not be limited to" those listed in the section. Id. According to
Section 3004(a)(l)-(7), the TSDF standards must include requirements concerning:
• maintenance of records of all hazardous wastes treated, stored, or disposed of at the
TSDF;
• reporting, monitoring, and inspection and compliance with the manifest system;
• treatment, storage, or disposal practices satisfactory to EPA;
134
-------
• location, design, and construction of TSDFs;
• contingency pkns for responding to unanticipated damage from treatment, storage,
or disposal;
• maintenance of facilities and additional qualifications as to ownership, training of
personnel, and financial responsibility; and
permitting of TSDFs under RCRA Section 3005.
42 U.S.C. § 6924(a)(l)-(7). Here, too, the agency has been given wide latitude to address issues of
concern to low-income communities and communities of color.
Sections 3004(d)-(e) and (g) prohibit land disposal of specified hazardous wastes, including
liquid wastes and organic compounds, solvents and dioxins, and additional wastes specified by EPA.
42 U.S.C. § 6924(d)-(e),(g). These wastes may not be disposed of on land unless it is demonstrated
to EPA with a reasonable degree of certainty that there will be "no migration of hazardous
constituents ... for as long as the wastes remain hazardous." Id. Section 3004(d)(l)(A)-(C)
requires the agency to take a precautionary approach in setting its "no migration" standards, taking
into account "the long-term uncertainties associated with land disposal, the goal of managing hazardous
wastes in an appropriate manner in the first instance, and the persistence, toxicity, mobility and
propensity to bioaccumulate of such hazardous wastes and their hazardous constituents." 42 U.S.C.
§ 6924(d)(l)(A)-(C) (emphasis added). This precautionary approach can be used to promote
environmental justice by ensuring that the "no migration" standards are as strict as necessary to
protect health and the environment in affected communities.
For wastes subject to the land disposal prohibition, Section 3004(m) requires EPA to
promulgate regulations prescribing the "levels or methods of treatment, if any, which substantially
diminish the toxicity of the waste or substantially reduce the likelihood of migration of hazardous
constituents from the waste so that short-term and long-term threats to human health and
environment are minimized." 42 U.S.C. § 6924(m)(l). The waste can only be disposed of on land if
it is treated by the prescribed methods and to the prescribed levels. Id. Because many TSDFs are
located in communities of color and low-income communities, EPA has an opportunity to advance
environmental justice by considering the risks particular to these communities in setting the "no
migration" standard and the prescribed treatment standards. For example, in assessing the toxicity
of the waste and its "long-term threats to human health," EPA could consider the waste's impacts
on sensitive populations, as well as impacts through multiple or unique exposure pathways.
EPA also is authorized in Section 3004(n) to issue regulations for monitoring and
controlling air emissions at TSDFs "as may be necessary to protect human health and the
environment." 42 U.S.C. § 6924(n). If EPA finds that air emissions from TSDFs disproportionately
affect the health of communities of color and low-income communities, it can use its Section
3004(n) authority to address these problems.
Section 3004(a)(4) empowers EPA to issue standards for the "the location, design, and
construction" of treatment, storage, and disposal facilities. 42 U.S.C. § 6924(a)(4). Section
3004(o)(7) augments this authority by directing the agency to "specify [technological] criteria for the
acceptable location" of new and existing TSDFs "as necessary to protect human health and the
environment." 42 U.S.C. § 6924(o)(7). Existing location standards deal with seismic and
135
-------
hydrological considerations, 40 C.F.R. § 264.18, and with ecologically sensitive areas such as coastal
zones and endangered species habitats. 40 C.F.R. § 270.3. EPA could add environmental justice
considerations to this list, for example, by mandating the use of buffer zones between facilities and
community residents. See Memorandum from Gary S. Guzy, U.S. EPA Office of General Counsel,
EPA Statutory and Regulatory Authorities Under Which Environmental Justice Issues May Be
Addressed in Permitting (Dec. 1, 2000) [hereinafter "OGC 2000 Memorandum"]. EPA coulcl also
require consideration of the degree to which the health of a proposed community is already stressed
by environmental and other factors. Thus, in making siting decisions, facilities and regulators would
need to consider effects on sensitive populations, synergistic effects, and multiple or unique
exposure pathways to ensure that the facility would not have adverse health impacts on the
community.
Similarly, Section 1004(2) defines the term "construction" to include "preliminary planning
to determine the economic and engineering feasibility and the public health and safety aspects of the
project," as well as "economic investigations and studies " 42 U.S.C. § 6903(2). This definition
could add support for EPA actions to encourage consideration of health issues specific to low-
income communities and communities of color in the planning stages of a facility,
Training standards under Section 3004(a)(6) likewise could be designed to take
environmental justice concerns into account. 42 U.S.C. § 6924(a)(6). Current training standards
deal only with the technical demands of hazardous waste management. See 40 C.F.R. § 264.16.
EPA could expand the scope of this training to include environmental justice issues as well. As
Richard Lazarus and Stephanie Tai point out, such training could help "bridge the gap between the
community and a regulated facility within that community." Richard Lazarus & Stephanie Tai,
IntcgratingEnvzronmentalJustice into EPA PermittingAuthority, 26 ECOL. L.Q. 617, 644 (1999)
[hereinafter "Lazarus & Tai"].
Contingency planning criteria promulgated under Section 3004(a)(5) offer another
opportunity to promote environmental justice. 42 U.S.C. § 6924(a)(5). In some cases, generic
contingency planning might not adequately serve the needs of low-income communities and
communities of color. Under this provision, EPA can establish more specialized planning standards
that do a better job of addressing the particular circumstances of the affected communities.
C. Non-Hazardous Waste Regulation
The regulation of non-hazardous solid wastes is of critical importance, as non-hazardous
wastes represent by far the nation's largest volume of wastes and can, in many cases, result in threats
to human health and the environment as great as those of hazardous wastes. See Robert B.
McKinstry, Jr., & Mark A. Stevens, Regulation ofNonha^ardous Wastes Under-RCRA in THE RCRA
PRACTICE MANUAL 209 (Theodore L. Garrett, ed., 1994). In particular, some so-called non-
hazardous wastes that are excluded from regulation under Subtitle C - for example, household
hazardous waste and small generator hazardous waste — are indistinguishable from materials
regulated as hazardous wastes, and absent effective regulation, can cause the same adverse health
effects to surrounding communities. See id.
136
-------
Although RCRA is focused primarily on hazardous waste regulation, it also subjects non-
hazardous wastes to limited regulation under Subtitle D. 42 U.S.C. §§ 6941-6949a. Unlike Subtitle
C, which contemplates comprehensive federal regulation with a limited role for the states in the
implementation of permits, Subtitle D contemplates a much larger role for state and local agencies,
with technical and financial assistance from the federal government. However, EPA still plays a
significant role in non-hazardous waste regulation by providing technical guidelines for state solid
waste disposal facilities, reviewing and approving state solid waste management plans, and
prohibiting open dumping and providing criteria that define sanitary landfills.
1. EPA Guidelines for State Solid Waste Disposal Facilities
Section 1008 requires EPA to develop guidelines that, among other things, "provide a
technical and economic description of the level of performance that can be obtained by various
available solid waste management practices . . . which provide for the protection of public health and
the environment" and describe levels of performance, including appropriate methods and degrees of
control, that provide for "protection of public health and welfare" 42 U.S.C. § 6907 (emphasis added).
These performance guidelines are recommended for all solid waste facilities, but they are binding
only for federal agencies and contractors operating any federal property or facility. 42 U.S.C. § 6924.
Nevertheless, EPA can use this authority, which specifically focuses on public health protection, to
recommend and in some cases set standards for solid waste disposal facilities that will sufficiently
protect against adverse health effects in surrounding communities.
2. EPA Guidelines and Approval of State Solid Waste Plans
Under Section 4002(b), EPA must promulgate guidelines to assist in the development and
implementation of state solid waste management plans. These guidelines are to be reviewed at least
every three years, and revised as appropriate. 42 U.S.C. § 6942(b). Section 4002(c)(9) states that in
promulgating the guidelines, EPA must consider "the political, economic, organizational, financial,
and management problems affecting comprehensive solid waste management." 42 U.S.C. § 6942(b).
As Richard Lazarus and Stephanie Tai point out, "little dispute exists that environmental justice
presents a major 'political' problem affecting solid waste management." Lazarus & Tai at 647.
Thus, Section 4002 would authorize EPA to include in its guidelines for state solid waste
management plans recommendations for how a state might best address environmental justice
concerns related to solid waste management. Id.
3. Prohibition on Open Dumping
Section 1008 requires EPA to define methods of waste disposal that constitute "open
dumping." 42 U.S.C. § 6907. Section 4005(a) imposes the principal substantive requirement of
Subtitle D by prohibiting such dumping as defined by EPA. 42 U.S.C. § 6945(a). Section 4004(a) ,
grants EPA authority to promulgate regulations containing criteria for determining which facilities
are classified as open dumps and which as sanitary landfills, and provides that "[a]t a minimum, such
criteria shall provide that a facility may be classified as a sanitary landfill and not an open dump only
if there is no reasonable probability of adverse effects on health or the environment from disposal of solid waste
at such facility." 42 U.S.C. § 6944(a) (emphasis added). Thus, EPA has considerable discretion to
137
-------
consider health-related factors specific to low-income communities and communities of color when
defining acceptable methods of solid waste disposal.
III. PERMITTING AND OTHER APPROVALS
The RCRA permitting process offers visible and immediate opportunities for addressing
environmental justice. EPA has akeady begun investigating ways to improve its consideration of
environmental justice issues before and during RCRA permitting. See OGC 2000 Memorandum at
2-5. There is a rich literature on this subject, as well as a substantial body of experience at the
regional and state level, as the agency's own reports indicate. See U.S. EPA OFFICE OF SOLID
WASTE AND EMERGENCY RESPONSE, 1997-1998 WASTE PROGRAMS ENVIRONMENTAL JUSTICE
ACCOMPLISHMENTS REPORT (EPA-500-R-00-003, May 2000). This body of experience provides a
foundation for further action by EPA.
A. Permitting for Hazardous Waste Management Under Subtitle C
1.
TSDF Permit Conditions
RCRA Section 3005 requires any facility that is treating, storing, or disposing of hazardous
waste onsite to obtain a permit. 42 U.S.C. § 6925(a). Section 3005(c)(3) states that "[e]ach permit
issued under this section shall contain such terms and conditions as the Administrator (or the State)
determines necessary to protect human health and the environment." 42 U.S.C. § 6925(c)(3).
Permit writers can rely on this so-called "omnibus" authority to impose permit conditions related to
environmental justice, addressing such matters as the presence of sensitive sub-populations, unique
exposure pathways, and risk aggregation. Like the health-based language found in other sections of
RCRA, the section provides a legal foothold to consider a wide range of environmental justice
measures.
The Environmental Appeals Board addressed the scope of EPA's powers under Section
3005(c)(3) in In re Chemical Waste Management of Indiana, Inc., 6 E.A.D. 66,1995 WL 395962 (June 29,
1995). The case involved environmental justice challenges to EPA's issuance of the Hazardous and
Solid Waste Amendments portion of a RCRA permit. Although the Board held that EPA was not
required to include environmental justice considerations in RCRA permitting decisions, it strongly
endorsed the agency's authority to do so as a matter of policy under Section 3005(c)(3). "We
conclude," the Board held, "that there are areas where the Region has discretion to act within the
constraints of the RCRA regulations and, in such areas, as a matter of policy, the Region should
exercise that discretion to implement the Executive Order." 1995 WL 395962 at 5 (emphasis added).
While the Chemical Waste Management opinion encourages EPA to incorporate environmental
justice considerations into RCRA permitting, it also identifies one potentially significant limitation to
the agency's Section 3005(c)(3) power. By its own terms, the omnibus clause confines the reach of
EPA authority to "such terms and conditions as the Administrator (or State) determines necessary
to protect human health and the environment." According to the Board, this language deprives
EPA of the discretion "to redress impacts that are unrelated or only tenuously related to human
138
-------
health and the environment, such as disproportionate impacts on the economic well-being of a
minority or low-income community." 1995 WL 395962 at 7.
It is possible to read this portion of the Chemical Waste Management decision as erecting a
greater barrier to the agency's environmental justice powers than the Board might have intended.
The Board is not saying that economic and social impacts are beyond the scope of the agency's
regulatory authority. It is merely saying that EPA must link such impacts to health or environmental
quality. Lazarus & Tai at 663. In actuality, the linkages between socio-economic effects and human
health and environmental quality are not as remote as they might appear, and such links are
incorporated in environmental impact assessments, as discussed in the National Environmental
Policy Act chapter of this report. A significant problem is that those pressing environmental justice
claims before EPA and the Board rarely possess the technical and legal resources necessary to
establish these linkages. The Chemical Waste Management decision, the Executive Order, and EPA's
implementing actions all suggest that the agency itself could investigate these linkages, even if
environmental justice claimants do not have the resources to do so.
2. ' Land Disposal Permits
Section 3019 provides opportunities to incorporate environmental justice concerns in land
disposal permits. Under Section 3019(a), applicants for land disposal permits must include certain
information in their applications, including information about "reasonably foreseeable releases"
from normal operations and transportation accidents, and information about the potential pathways,
nature, and magnitude of human exposure to releases. 42 U.S.C. § 6939a(a)(l)-(3). In addition,
under Section 30l9(b), EPA may request the Agency for Toxic Substances and Disease Registry to
conduct a health assessment when, in EPA's judgment, a land disposal facility "poses a substantial
potential risk to human health." 42 U.S.C. § 6939a(b).
Section 3019(d) provides that priority is to be given to "those sites at which . . . potential
risk to human health appears to be highest, and for which . . .existing health assessment data is
inadequate to assess the potential risk to human health." 42 U.S.C. § 6939a(d). Section 3019(f)
defines"health assessments" in a way that encompasses a number of environmental justice concerns,
such as "the existence of potential for pathways of human exposure (including ground or surface
water contamination, air emissions and food chain contamination)," and the "potential susceptibility
of the community within the likely pathways of exposure." 42 U.S.C. § 6939a(f).
Such information about exposure pathways and cumulative risks are precisely the kind of
data environmental justice advocates often seek. Under the Section 3019 provisions, EPA has
authority to generate this information, at least with respect to land disposal facilities. In addition,
Section 3019(c) provides that "[a]ny member of the public may submit evidence of releases or of
exposure to hazardous constituents from such a facility, or as to the risks or health effects associated
with such releases or exposure." 42 U.S.C. § 6939a(c). This section provides an important
opportunity for public participation in the health assessment process.
139
-------
B. Permitting for Non-Hazatdous Waste Facilities Under Subtitle D
Although Subtitle D lacks the comprehensive federal permitting and enforcement schemes
established under Subtitle C, it does have a limited permitting system applicable to non-hazardous
waste management facilities that receive household hazardous waste and small quantity generator
waste that is exempted from regulation under Subtitle C. RCRA Section 4005 requires states to
implement a permit program for all solid waste management facilities that may receive household
hazardous wastes or small quantity generator waste. If a state fails to adopt an adequate permit
system, EPA may take enforcement action under the Act. 42 U.S.C. § 6945(c)(2).
C. Public Participation in Permitting
EPA also has ample authority to encourage public participation in RCRA permitting. For
example, Section 7004(b)(2) directs the EPA to publicize its intention to issue a permit to the
public and local government officials. If EPA receives written notice of opposition, "or if the
Administrator determines on his own initiative, he shall hold an informal public hearing." 42 U.S.C.
§ 6974(b)(2). Using this authority, the agency issued its RCRA Expanded Public Participation Rule,
which specifically addresses environmental justice concerns. 60 Fed. Reg. 63417 (Dec. 11, 1995).
The expanded participation rule requires, among other things, that permit applicants hold informal
public meetings with affected communities before submitting their applications to the permitting
authority.
The environmental justice arena offers an excellent forum for EPA to expand and refine
new ideas about public participation. Although mandatory environmental justice requirements were
dropped from the final Expanded Public Participation Rule, see 60 Fed. Reg. at 63420-21, the rule
provides ample guidance, and six years of experience under the rule may yet provide the basis for
reconsideration of whether to include mandatory public participation provisions.
IV. DELEGATION OF PROGRAMS TO STATES AND TRIBES
A. Hazardous Waste Regulation
RCRA places the primary burden of hazardous waste regulation on the federal government.
As discussed above, EPA is required to promulgate regulations to identify the characteristics of
hazardous waste; list particular hazardous wastes that are subject to regulation; and establish uniform
standards applicable to generators, transporters, and TSDFs.
However, RCRA does allow the states a significant role in administering hazardous waste
regulation. Section 3006 authorizes EPA to delegate significant implementation and enforcement
powers to the states. 42 U.S.C. § 6926. Such delegation is governed by federal guidelines developed
by EPA in consultation with the states. 42 U.S.C. § 6926(a). Much like the delegation process under
other environmental statutes, RCRA delegation begins with application by a state for federal
authorization. States may submit their applications only after notice and opportunity for a public
hearing. 42 U.S.C. § 6926(b). The EPA will authorize the state program unless it finds that the state
program "is not equivalent to" or "consistent with" the federal program, or does not provide
140
-------
adequate enforcement authority to implement the program. 42 U.S.C. § 6926(b). Further, EPA
cannot approve a state program unless the program provides for public availability of information
obtained by the state regarding facilities and sites of treatment, storage, and disposal of hazardous
wastes. 42 U.S.C. § 6926(f) Such information must be available to the public in the same manner
and to the same degree as would be the case if EPA were carrying out the program. Id.
Under Section 3009, state programs may not impose requirements less stringent than the
federal program, but they may impose requirements, including those for site selection, that are more
stringent than the federal program. 42 U.S.C. § 6929. Courts have held, however, that states may
not administer their RCRA programs in ways that burden interstate commerce. Hazardous Waste
Treatment Council v. South Carolina, 945 F.2d 781, 792 (4th Cir.1991) (RCRA does not reflect "an
unmistakable clear congressional intent to permit states to burden interstate commerce"); Chemical
Waste Management, Inc. v. Templet, 967 F.2d 1058 (5th Ck. 1992), cert, denied, 113 S. Ct. 1048 (1993)
(Louisiana statute barring importation of hazardous waste from foreign countries violates the
Commerce Clause). Thus, EPA could apply the "no less stringent" provision to help ensure that the
agency's environmental justice initiatives are included in state programs; states are free to adopt
further environmental justice measures as long as they do not unduly burden interstate commerce.
Once approved, the state RCRA program operates in lieu of the federal program, and EPA
may not enforce the federal program in that state. In such states, federal law has been displaced by
state law. 40 C.F.R. § 264.1 (f). Most states have received final authorization to administer the
RCRA base program — the RCRA hazardous waste program prior to the Hazardous and Solid Waste
Amendments of 1984. However, not all parts of the program have been delegated to all states, and
a smaller number of states have been authorized to administer the additional requirements imposed
by HSWA. EPA carries out the HSWA-driven permitting regulations in states that are not yet
authorized to do so. 42 U.S.C. § 6926(c)(4).
Thus, although RCRA authorizes significant delegation of administrative authority to the
states, EPA still retains oversight over state programs, through which it can ensure that
environmental justice measures are implemented. First, EPA can pursue environmental justice
strategies directly through administration and enforcement of HSWA requirements in states that are
not yet authorized to do so. Second, EPA can incorporate environmental justice measures into state
programs as they receive HSWA approval, as well as state programs that have akeady been
delegated. To do so, EPA could revise its state program guidelines under Section 3006(a). 42
U.S.C. § 6926(a). If a state-issued permit fails to incorporate the resulting environmental justice
aspects of the program, EPA may submit comments during the permit's public comment period. 40
C.F.R. § 271.19(a). The agency may then act to implement the steps outlined in its comments if the
state fails to implement its own program. 40 C.F.R. § 271.19(e). Third, in extreme cases, EPA can
withdraw authorization of a state program that is not administered "in accordance with the
requirements" of RCRA. 42 U.S.C. § 6926(e). Because Section 3009 requkes states to impose
requkements at least as stringent as federal requkements, EPA could potentially withdraw
authorization of a state program that failed to incorporate federal envkonmental justice
requkements. 42 U.S.C. § 6929.
141
-------
B. Non-Hazardous Waste Regulation
As discussed in Part II.C., above, Section 4006 requires states to identify agencies to
develop and implement die state solid waste management plan. 42 U.S.C. § 6946. Section 4003
oudines the minimum requirements a state plan must meet in order to obtain EPA approval,
including the prohibition on "open dumping." 42 U.S.C. § 6943. Section 4007 provides that if a
state plan meets these requirements and contains provisions for revision of such plans, EPA shall
approve the plan, 42 U.S.C. § 6947, and states with approved plans are entided to federal financial
assistance for solid waste management. 42 U.S.C. §§ 6947, 6948. The agency may withdraw
approval of a state plan, after notice and opportunity for public hearing, if die plan fails to comply
with minimum requirements. 42 U.S.C. §§ 6947. In addition, Section 4005 (c) delegates to the
states responsibility for implementing a permit program for all solid waste management facilities that
may receive household hazardous wastes or small quantity generator waste. 42 U.S.C. §6945(c).
These permits must comply widi the criteria for sanitary landfills adopted by EPA. Id.
These statutory provisions give EPA authority to provide guidelines and technical assistance
to the states in developing adequate solid waste management facilities and solid waste management
plans that address environmental justice concerns. EPA also can use the "carrot" of financial
assistance to encourage states to develop and submit for EPA approval solid waste management
plans that incorporate these concerns.
V.
ENFORCEMENT
RCRA provides EPA with extensive enforcement powers. The vast majority of EPA
enforcement activity falls into three general categories: administrative orders, civil actions, and
criminal prosecutions.' There also are special provisions allowing the agency to take direct action in
cases of "imminent and substantial endangerment," and to require corrective actions.
A. Administrative Orders, Civil Actions, and Citizen Suits
RCRA Section 3008 gives EPA the authority to issue compliance orders, suspend or revoke
permits, and assess penalties of up to $25,000 per day for any violation of die statute. 42 U.S.G. §
6928. Even though RCRA lacks a provision enabling the agency to base penalties on considerations
of "justice," in contrast to the Clean Ak and Clean Water Acts, it does require penalties to be
gauged by "die seriousness of the violation and any good faith efforts to comply with applicable
requirements." 42 U.S.C. § 6928(a)(3). The agency has established a formula for determining the
amount of the penalties, which takes into account die gravity and duration of die violation, die
economic benefit received by die violator, and factors such as the violator's history of
noncompliance, good or bad faidi, and ability to pay. See U.S. EPA, RCRA Civil Penalty Policy
(October 1990), available at http://www.es.epa.gov/oeca/ore/rcra/cmp/100090.pdf (last visited
Nov. 9,2001).
All of these factors are relevant to the healdi and environmental impacts on low-income
communities and communities of color. The seriousness or gravity of a violation depends not only
on its magnitude, but also on the context in which it occurs. A RCRA violation might well have
142
-------
more serious consequences in areas akeady overburdened with environmental risks than in less
intensely developed areas. Economic benefit and history of noncompliance also can be important
considerations in assessing penalties in communities of color and low-income communities.
Under Section 3008(g), after referral by EPA, the Department of Justice may commence a
civil lawsuit before a federal district court judge in the district where the violation occurred. The
court can assess civil penalties of up to $25,000 per day of violation, or grant injunctive relief
ordering particular actions. 42 U.S.C. § 6928(g). Judicially imposed penalties typically take into
account the same factors as those addressed in EPA's RCRA Civil Penalty Policy, and thus offer
similar opportunities to address environmental justice issues.
Section. 7002 provides for citizen suits "against any person .. .who is alleged to be in
violation of any permit, standard, regulation, condition, requirement, prohibition, or order" under
RCRA. 42 U.S.C. § 6972(a)(l)(A). Typical of citizen suit provisions, the section requires the
complainant to give notice to EPA and the alleged vioktor prior to filing suit in federal court. 42
U.S.C. § 6972(b)(l). If the agency then fails to commence and prosecute its own enforcement
action, the citizen suit may go forward. Id.
B.
Criminal Enforcement
Section 3008(d) makes available criminal penalties for certain "knowing" violations of the
statute. 42 U.S.C.,§ 6928(d). Included among these are knowing transportation to a facility without
a permit, and knowing treatment, storage, or disposal of hazardous wastes without a permit or
interim status coverage. The penalties for Section 3008(d) violations are fines up to $50,000 per day,
imprisonment of up to five years, or both. If a violator knows that he is placing "another person in
imminent danger of death or serious bodily injury," these penalties may be increased to $250,000
($1,000,000 for organizations), and fifteen years in prison. 42 U.S.C. § 6928(e). The ability to target
criminal enforcement efforts gives EPA another way to address environmental justice.
C. Imminent and Substantial Endangerment
RCRA Section 7003 provides an additional source of authority for responding to hazards
caused by the improper handling, storage, treatment, transportation, or disposal of hazardous waste.
42 U.S.C. § 6973. If any of these activities "may present an imminent and substantial endangerment
to health or the environment," EPA may file a lawsuit on behalf of the United States in federal
district court against any person who has contributed, or is contributing, to such activities. Id.
Section 7003 enables EPA to seek orders restraining defendants from continuing these activities,
directing defendants "to take such other actions as may be necessary," or both. After providing
notice to the affected state, the agency may also take other actions, "including, but not limited to,
issuing such orders as may be necessary to protect public health and the environment." 42 U.S.C. §
6973(a). Violations of imminent hazard orders are punishable by fines of up to $5,000 per day. 42
U.S.C. § 6973(b). This "as may be necessary" language represents a broad and flexible grant of
authority with which the agency can take action to further environmental justice goals.
143
-------
D.
Corrective Action
Even where a hazardous waste release does not present an "imminent and substantial
endnngerment," EPA can require remediation of releases through corrective action. Fkst, EPA has
the authority to impose corrective action requirements through its permitting authority under
Section 3004(u) for all releases from solid waste management units at any TSDF seeking a permit.
42 U.S.C. § 6924(u). In addition, Section 3004(v) requires EPA to mandate corrective action
beyond the facility boundary "where necessary to protect human health and the environment." 42
U.S.C. § 6924(v). This clearly authorizes EPA to consider health effects in the surrounding
community in imposing more stringent corrective action requirements. EPA also can include
corrective action requirements in a permit through its omnibus permitting authority under Section
3005(c)(3), which allows EPA to include any requirements "necessary to protect human health and
the environment." 42 U.S.C. § 6925(c)(3). Finally, under-Section 3008(h), EPA can impose
corrective action requirements for releases at interim status facilities (facilities authorized to treat,
store, or dispose of hazardous waste while awaiting a permit). 42 U.S.C. § 6928(h).
VI.
INFORMATION GATHERING (RESEARCH, MONITORING,
AND REPORTING)
A.
Research
EPA has substantial research capabilities under RCRA. Section 2002(a)(2) authorizes the
agency to consult and exchange information with other federal agencies doing research "relating to
solid waste " 42 U.S.C. § 6912(a)(2). Section 2002(a)(4) authorizes consultation with scientists
and other groups as EPA "deems advisable." 42 U.S.C. § 6912(a)(4). Under Section 2002(a)(5),
the agency may also use the resources of federal agencies, "including . . .the National Bureau of the
Census," to perform research related to resource recovery and conservation "and to otherwise carry
out the Administrator's functions" under RCRA. 42 U.S.C. § 6912(a)(5). Under this broad grant of
authority, EPA could undertake or fund research studies aimed specifically at environmental justice
issues. For example, EPA could use Geographic Information Systems to compile a geographically
specific inventory of environmental justice information. Such a database could provide a foundation
for future agency innovations.
Additional authority for research is provided by Section 8001(a). 42 U.S.C. § 6981 (a).
Under this provision, EPA must conduct research, or fund research by others, relating to "(1) any
adverse health and welfare effects of the release into the environment of material present in solid
waste, and methods to eliminate such effects. ... (5) the reduction of the amount of such waste and
unsalvageable waste materials. . . . [and] (13) any adverse effects on air quality (particularly with
regard to the emission of heavy metals) which result from solid waste which is burned (either alone
or in conjunction with other substances) for purposes of treatment, disposal or energy recovery."
Id. AE of these research activities could incorporate environmental justice issues.
Section 3012 requires states to undertake a continuing program to compile, publish, and
submit to EPA an inventory that describes the location of each hazardous waste site within the state,
including information on the amount, nature, and toxicity of waste, and techniques for waste
144
-------
treatment or disposal used ateach site. 42 U.S.C. § 6933. EPA must assist this effort by providing
information, and also may make grants to states to carry out the program. 42 U.S.C. § 6933(a),(c).
If a state fails to carry out the program adequately, EPA must assume responsibility for it. 42 U.S.C.
§ 6933 (b). Similarly, Section 3016 requires each federal agency to undertake a continuing program
to compile, publish, and submit to EPA an inventory of each site owned by the agency at which
hazardous waste is stored, treated, or disposed, and to make the inventory available to the public. 42
U.S.C. § 6937. If EPA determines that a federal agency is not providing adequate information, it
may notify the head of that agency; and if the deficiencies persist, EPA may carry out the inventory
program. 42 U.S.C. § 6937(b). Both of these programs compile research that can help assess
whether hazardous waste sites are disproportionately located in low-income communities or
communities of color.
B. Monitoring, Sampling, and Inspections
EPA enjoys extensive monitoring and inspection powers under RCRA. Section 3007(a)
applies to any person who generates, stores, treats, transports, disposes of, or "otherwise handles"
hazardous wastes. 42 U.S.C. § 6927(a). Upon the request of any agency representative, these parties
must provide information concerning hazardous wastes and allow entry, inspection, and sampling.
All records, reports, or information obtained through this authority must be made available to the
public, unless a showing of business confidentiality is made "satisfactory to the Administrator." 42
U.S.C. § 6927(b).
RCRA Section 3013 provides for further monitoring authority. 42 U.S.C. § 6934. If the
agency determines, "upon the receipt of any information," that the presence or release of any
hazardous waste from a facility "may present a substantial hazard to human health or the
environment," it can require the owner or operator of the facility to conduct "monitoring, testing,
analysis, and reporting" that the agency deems "reasonable to ascertain the nature and extent of such
hazard." 42 U.S.C. § 6934(a). Under Section 3013(d), if EPA determines that the owner or
operator cannot perform these actions in a manner "satisfactory to the Adrninistrator," it may carry
out the actions on its own, or authorize "any person" to do so, at the facility's expense. 42 U.S.C. §
6934(d).
These provisions could potentially support a range of additional information gathering
activities aimed at important issues affecting low-income communities and communities of color.
For example, EPA could seek new ways to involve community members in monitoring, inspection,
and enforcement. Agency representatives need not be full-time employees of EPA. Local residents,
for example, could be hired and trained by the agency to conduct environmental inspections at
facilities in their neighborhoods.
C. Reporting and Recotd-keeping
RCRA provides EPA with substantial authority to impose reporting and record-keeping
requirements for generators, transporters, and TSDFs. Section 3007 empowers EPA to require
generators, TSDFs, and those "otherwise handl[ing]" hazardous wastes to "furnish information
relating to such wastes" and to allow access for copying all records relating to the wastes. 42 U.S.C.
§ 6927(a). Under Section 3002, the agency must issue regulations on record-keeping and reporting
145
-------
for generators of hazardous wastes. 42 U.S.C. § 6922(a)(l). Section 3003 contains no explicit
reporting requirements for transporters, but does authorize the agency to promulgate standards
"necessary to protect human health and the environment." 42 U.S.C. § 6023(a). RCRA Section
3004 confers broad authority to promulgate regulations "as may be necessary to protect human
health and the environment," including but not limited to requirements for "maintaining all records
of hazardous wastes . . .and the manner in which such wastes were treated, stored or disposed of."
42 U.S.C. § 6024. These provisions authorize EPA to establish reporting requirements that provide
communities with information that can help them more effectively address health and
environmental risks.
VII. FINANCIAL ASSISTANCE
*
One of RCRA's objectives, stated in Section 2002(a)(3), is to "provide technical and
financial assistance to States or regional agencies in the development and implementation of solid
waste pkns and hazardous waste management programs." 42 U.S.C. § 6912(a)(3). Under RCRA
Section 3011, EPA makes annual grants to states to help cover the costs of implementation. 42
U.S.C. § 6931.* These funds are allocated among the states based on the extent to which hazardous
waste is managed within the state, the extent of human and environmental exposure in the state, and
"such other factors as the Administrator deems appropriate." 42 U.S.C. § 6931 (b). Factors deemed
appropriate by EPA could include the extent to which states have implemented, or are working to
implement, environmental justice measures into their programs.
Under Section 4008, certain state solid waste management plans are eligible for financial
assistance from EPA if the plans contain various factors related to resource recovery and
conservation. 42 U.S.C. § 6948. In order to obtain approval, the state plan must comply with
certain minimum requirements, including prohibiting the open dumping of solid waste. 42 U.S.C. §
6943(a)(2). If a plan is approved, then EPA must also approve the state's application for financial
assistance. 42 U.S.C. § 6947(b)(2). This financial assistance could be conditioned on state
furtherance of environmental justice goals, such as enhanced monitoring and reporting for landfills
located in low-income communities or communities of color.
Under Section 7007(b), EPA may make grants to states, educational institutions, and other
eligible organizations for the "training [ofj persons for occupations involving the management,
supervision, design, operation, or maintenance of solid waste management and resource recovery
equipment and facilities," or for the training of instructors for these programs. 42 U.S.C. § 6977 (b).
EPA could use its Section 7007 authority, alone or in combination with other authorities, to train
residents of low-income communities and communities of color for skilled positions at nearby solid
waste facilities.
Finally, 42 U.S.C. Section 6941a(6) - which is part of Subtitle D although it lacks a separate
RCRA section number — finds that "various communities throughout the nation have different
needs and different potentials for conserving resources and for utilizing techniques for the recovery
of energy and materials from waste, and Federal assistance in planning and implementing such
energy and materials conservation and recovery programs should be available to all such
communities on an equitable basis in relation to their needs and potential" 42 U.S.C. § 6941 a(6) (emphasis
146
-------
added). This section recognizes that issues of equity and fairness are a part of federal assistance
efforts to improve solid waste disposal, and could support generally EPA efforts to direct assistance
to low-income communities and communities of color.
147
-------
148
-------
CHAPTER 13
COMPREHENSIVE ENVIRONMENTAL RESPONSE,
COMPENSATION, AND LIABILITY ACT
("CERCLA"or "Superfund") 42 U.S.C. §§ 9601-9675
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA
or Superfund) was enacted in 1980 in response to growing public concern over inactive hazardous
waste sites, such as Love Canal in New York and Valley of the Drums in Kentucky. The statute
authorizes EPA to clean up and take actions to address and prevent releases of hazardous
substances. Superfund takes its name from the revolving fund set up to finance site cleanups. The
parties responsible for the releases or threat of releases of the hazardous substances may be required
to pay all the government's costs of responding to the problem. EPA may also require the parties
responsible for the release or threat of release to take the necessary cleanup actions. Except for
limited defenses, those responsible for hazardous substances at a site are jointly, severally, s.ttictly,
and retroactively liable for cleanup costs.
According to some estimates, as many as one in four people lives within a four-mile radius
of a Superfund site. See Statement by Carol Browner, Administrator, U.S. Environmental Protection
Agency, on the Administration's Proposal for Superfund Reform (Oct. 5,1994). Many of these
people live in low-income communities and communities of color. See, e.g., U.S. EPA, OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL JUSTICE TASK FORCE DRAFT
FINAL REPORT (U.S. Environmental Protection Agency, pub., EPA 540/R-94/003,1994) (citing
1983 General Accounting Office study that found three'of four hazardous waste sites investigated in
Southern U.S. were located in primarily African American communities); UNITED CHURCH OF
CHRIST COMMISSION FOR RACIAL JUSTICE, Toxic WASTES AND RACES IN THE UNITED STATES
(1987) (studying the demographic characteristics of communities with uncontrolled toxic waste sites,
and finding that African-Americans were heavily over-represented in the populations of
metropolitan areas with the largest number of such sites). Therefore, the effective and efficient
cleanup of Superfund sites is essential to protecting the health and environment of many
communities of color and low-income communities. A landmark 1992 study that raised awareness
of environmental justice concerns focused on the Superfund program. The study, published in the
National Law Journal, found that EPA took longer to address hazards in communities of color than
in largely white communities and that EPA accepted less stringent cleanup remedies in communities
of color. See Marianne Lavelle & Marcia Coyle, Unequal Protection, NATIONAL LAW JOURNAL (Sept.
21, 1992) [hereinafter "Lavelle & Coyle"].
This chapter offers the public a review of the CERCLA statutory authorities that could
potentially be used to address environmental justice concerns in EPA's regulatory activities under
the Act. Part I of the chapter discusses the broad authority granted to EPA under the Superfund
statute to respond directly to, or require that responsible parties respond to, releases or threats of
releases of hazardous substances. Part I also addresses the specific duties that CERCLA imposes on
the federal government with respect to the cleanup of contaminated facilities it owns. Part II
outlines the various standard setting provisions and EPA rule-making authorities granted under the
149
-------
Act that could potentially be used in a manner that takes into account environmental justice
concerns. Part IV outlines the provisions of the statute that address the role of the states and Tribes
in implementing the Superfund program and that could be used to advance environmental justice
goals. Part V outlines the various CERCLA enforcement authorities and penalty provisions. Part
VI discusses the wide range of information gathering and similar authorities that are granted to EPA
under CERCLA, including investigation and monitoring authorities, as well as authority to conduct
research. Part VI also outlines the numerous reporting requirements imposed on both EPA, :in
connection with its administration of the Superfund program, and federal government agencies, in
their capacity as owners of facilities contaminated with hazardous substances. Finally, Part VII
addresses the CERCLA provisions authorizing financial assistance mechanisms that can help
support environmental justice goals.
I.
GENERAL PROVISIONS
Unlike many environmental laws, CERCLA provides authority for and requires certain types
of direct actions by the federal government. Most notably, CERCLA grants EPA the authority to
respond directly to, or require that responsible parties respond to, releases or threats of releases of
hazardous substances. The statute also authorizes the use of monies in the Superfund for certain
EPA activities, including enforcement and abatement actions and hazardous substance research.
And, unlike many of the other environmental statutes, CERCLA imposes certain specific duti.es on
the federal government with respect to the cleanup of contaminated facilities it owns.
This Part discusses authorities under CERCLA in the following areas: (a) response actions;
(b) abatement actions; (c) use of Fund monies; (d) federal facility cleanup duties; (e) administrative
record public participation procedures; and (Ł) public participation in remedial action plans.
A. Response Actions
A core aspect of the Superfund program is EPA's authority to take action to ensure the
cleanup of facilities where a release or threat of a release of a hazardous substance is imminent or
has occurred.
Section 104 (a)(l) authorizes EPA to act whenever there has been a release (or a substantial
threat of release) of any hazardous substance, contaminant, or pollutant that may present an
"imminent and substantial danger to the public health or welfare." 42 U.S.C. § 9604(a)(l).
Specifically, EPA may "remove or arrange for removal of," "provide for remedial action," or "take
any other response measure" that EPA deems is necessary to protect the "public health or welfare
or the environment." Id.
Sections 101(23) and 101(24) define the terms "removal" and "remedial action." Removal
actions are typically snorter term, immediate cleanup activities, while remedial actions are longer
term, permanent actions. Both terms are defined broadly to include a wide range of activities. For
example, the term "remedial action" includes not only "repair and replacement of leaking
containers," but also "the costs of permanent relocation of residents, businesses and community
150
-------
facilities," under certain circumstances. 42 U.S.C. § 9601(23)&(24). The term "response" action
includes both removal and remedial actions. 42 U.S.C. § 9601(25).
Response measures must be consistent with the National Contingency Plan (NCP). As
discussed in more detail below, the NCP provides the organizational structure and procedures for
preparing for and responding to releases of hazardous substances, pollutants, and contaminants.
The statute directs EPA to give "primary attention" to releases which EPA deems may present a
"pubHc health threat." 42 U.S.C. § 9604(a)(l); see a/soAQ C.F.R. § 300.400(c) (regulations stating
certain requirements for EPA to follow in determining the need for, planning, or undertaking Fund-
financed response actions).
These general provisions grant EPA considerable authority to respond to releases and
threatened releases of hazardous substances. Given the broad statutory language, environmental
justice concerns, such as cumulative risk and vulnerability of sensitive populations, could presumably
be taken into account by EPA in defining "imminent and substantial danger" and determining
whether to use its response authority. The statute also provides that EPA actions may be taken to
protect "welfare," in addition to public health and the environment. This may provide a basis for
EPA to consider non-health impacts, such as social, cultural, and economic impacts, that might be
of particular concern to communities of color and low-income communities.
Section 104(a)(4) establishes exceptions to the limitations on EPA's removal and remedial
authority that are contained in Section 104(a)(3). The limitations prevent EPA from taking removal
or remedial action in response to releases or threats of releases from a naturally occurring substance
from a location where it is naturally found; from products that are part of the structure of, and result
in exposure within, residential buildings or business or community structures; or releases into public
or private drinking -water supplies due to deterioration of the system through ordinary use. Despite
these limitations, Section 104(a)(4) allows EPA to respond to these types of releases or threats of
releases of hazardous substances when it constitutes a "public health or environmental emergency"
and no other person with authority and capability to respond will do so in a timely manner. 42
U.S.C. § 9604(a)(4). EPA has issued regulations implementing these provisions. 40 C.F.R. §
300.400(b).
EPA has rarely used these exceptions to the limitations on its removal and remedial
authority. EPA could, however, rely on this section to address hazardous substance releases in low-
income communities and communities of color that may otherwise go unaddressed. This may
include releases from products, such as asbestos or lead paint, that are part of the structure of
buildings. They may also include releases into public or private drinking water supplies due to
deterioration of the-system through ordinary use, particularly in communities with limited financial
resources for maintaining buildings and water systems. In addition, such releases may pose
particular public health threats in many low-income communities and communities of color because
of factors such as sensitive populations and cumulative risks. Furthermore, because many low-
income communities and communities of color have limited resources, it may be likely that there are
no other authorities with capability to respond to the releases.
Section 104(c)(l) sets out several exceptions to the general rule that response actions
financed by the Fund may not continue after $2 million has been obligated or 12 months has
151
-------
elapsed from the date of the initial response to the release or threat of release of a hazardous
substance. A key exception to the $2 million/ 12-month cap on response actions is provided when:
(1) continued response actions are immediately required to prevent, limit, or mitigate an emergency;
(2) there is immediate risk to the public health, welfare, or environment; and (3) such assistance will
not otherwise be provided on a timely basis. While the statute uses the term "response action" in
imposing the cap, which includes both removal and remedial actions, EPA has interpreted the cap
to cover only "removal actions" and not remedial actions. See 40 C.F.R. § 300.415 (b)(5); 42 U.S.C.
§9604(c)(l).
The exception' to the cap on the amount and duration of removal actions funded by the
Superfund is a general rule that could potentially be applied, on a case-by-case basis or possibly
through guidance or regulations, to assist communities of color and low-income communities that
may be subject to immediate risks that would not otherwise be addressed in a timely manner.
B.
Abatement Actions
Section 106(a) provides specific authority to EPA to take enforcement-related actions when
there may be an imminent and substantial endangerment to the public health, welfare, or
environment because of an actual or threatened release of a hazardous substance. 42 U.S.C. §
9606(a). This section provides specific mechanisms for EPA to implement the authority granted in
Section 104(a). For example, this section authorizes the President to require the Attorney General
of the United States to secure such relief as may be necessary to abate the danger or threat. The
courts, in turn, are given jurisdiction to grant "such relief as the public interest and the equities may
require." Id. EPA is also authorized to take other actions including, but not limited to, issuing
orders as may be necessary to protect public health, welfare, and the environment. Id. EPA uses
this order authority as a means of requiring private parties to complete response actions.
This is a general provision that can be used to address releases in communities of color and
low-income communities. Given the broad statutory language, EPA could presumably take factors,
such as sensitive populations and cumulative risks, into account in determining whether there is an
"imminent and substantial endangerment." As discussed, the statute also provides that EPA actions
may be taken to protect "welfare," in addition to public health and the environment. This may
provide a basis for EPA to consider non-health impacts that might be of particular concern to
heavily impacted communities.
Section 106(c) requires EPA to establish guidelines for using the imminent hazard,
enforcement, and emergency response authorities granted under Section 106 of CERCLA, which
provides the authority for EPA to issue cleanup orders and to request that the Justice Department
assist it in securing necessary relief in court. 42 U.S.C. § 9606(c). Among the issues that must be
addressed by the guidelines are: the enforcement of standards and permits, the gathering of
information, and the imminent hazard and emergency powers authorized in other statutes
administered by EPA. Id. This section provides broad, general authority that arguably would allow
EPA to take environmental justice considerations into account in developing or amending guidelines
for using its emergency response and enforcement authorities.
152
-------
c.
Uses of Fund Monies
The statute specifies the permissible uses of monies appropriated to the Fund. Section
lll(b) authorizes claims against the Fund for injury to or loss of natural resources, including claims
asserted by Tribes or by the United States on behalf of any Tribe for injury to natural resources they
control. 42 U.S.C. § 961 l(b). This is a general provision that could be used by tribal communities
or by the United States on behalf of Tribes. Environmental justice goals could be forwarded by
making the claims process for Tribes as streamlined and efficient as possible, arid by providing
assistance and support throughout the claims process.
Section lll(c) authorizes additional uses of the Fund, some of which bear on
environmental justice concerns, including the following:
• costs of a Tribe's efforts with respect to restoration, rehabilitation, or replacement of
natural resources injured, destroyed, or lost as a result of a release of a hazardous
substance (Section lll(c)(2));
• costs to identify, investigate, and take enforcement and abatement actions against
releases of hazardous substances (Section lll(c)(3));
• costs incurred for epidemiologic and laboratory studies, health assessments,
preparation of lexicological profiles, development and maintenance of a registry of
persons exposed to hazardous substances to allow long-term heath effect studies,
and diagnostic services not otherwise available to determine whether persons in
populations exposed to hazardous substances in connection with a release or a
suspected release are suffering from long-latency diseases (Section lll(c)(4));
• costs incurred by EPA in evaluating facilities pursuant to petitions for environmental
assessments filed by parties affected by a release or threat of release of a hazardous
substance, as authorized under Section 105(d) of CERCLA (Section 111 (c)(7));
• the cost of carrying out the research, development, and demonstration program
established under Section 311of CERCLA (Section lll(c)(10)); and
• a percentage of the costs of reimbursing local governments for taking temporary
emergency measures necessary to prevent or mitigate injury to human health or the
environment under Section 123(b) of CERCLA (Section lll(c)(ll)).
These provisions authorize EPA use of Fund monies to conduct several activities that could forward
the protection of communities of color and low-income communities. These provisions are
discussed in more detail below. 42 U.S.C. § 9611(c)(2), (3), (4), (7), (10).
D. Federal Facility Cleanup Duties
CERCLA applies to federally owned facilities, as well as to privately owned facilities. 42
U.S.C. § 9620(a)(l). The statute sets out the specific requirements that apply to federal facilities and
153
-------
the procedures that EPA must follow with respect to addressing releases or threats of releases of
hazardous substances at federal facilities.
CERCLA Section 120(d) requires EPA to take steps to assure that a preliminary assessment
is conducted for each facility on the docket of federal facilities. Where appropriate, following this
preliminary assessment, EPA is also required to evaluate facilities in accordance with the NCP
criteria for prioritizing releases and listing federal sites on the National Priority List (NPL) that meet
the criteria. Section 120(d)(3) provides that evaluation and listing must be completed "in
accordance with a reasonable schedule established by the Administrator." 42 U.S.C. § 9620(d).
Section 120(e)(l)&(2) requires federal facilities, in consultation with EPA and appropriate
state authorities, to commence a remedial investigation and feasibility study not later than six
months after a facility is listed on the NPL. 42 U.S.C. § 9620(e)(l)&(2). EPA and the appropriate
state authorities must publish a timetable and deadlines for the"expeditious" completion of
investigations and studies. Id.
Under Section 120(e)(2), EPA is required to review the results of each investigation and
study conducted. Within 180 days, the federal facility must enter into an interagency agreement with
EPA for the "expeditious" completion of all necessary remedial action at the facility. Substantial
continuous physical onsite remedial action must be commenced at a facility not later than 15 months
after completion of the investigation and study, Interagency agreements, including the review of
alternative remedial action plans and selection of remedial actions, must comply with the public
participation requirements of Section 117, as discussed below. 42 U.S.C. § 9620(e)(2). Section
120(e)(3) provides that remedial actions at facilities subject to interagency agreements "shall be
completed as expeditiously as practicable." 42 U.S.C. § 9620(e)(3). Under Section 120(e)(4), each
interagency agreement must include: a review of alternative remedial actions; selection of a remedial
action by tihe head of the relevant department, agency, or instrumentality and the EPA; a schedule
for completion of each remedial action; and arrangements for long-term operation and maintenance
of the facility. 42 U.S.C. § 9620(e)(4).
These sections impose duties on federal facilities and EPA that are intended to ensure the
cleanup of contaminated federal facilities. EPA can promote environmental justice by implementing
these provisions efficiently and effectively at sites in or near communities of color and low-income
communities. For example, strict implementation of the duty to complete investigations and studies
in an "expeditious" manner and to complete remedial actions "expeditiously" would substantially
benefit communities of color and low-income communities where many federal facilities are located.
It is well-documented that many federal facility cleanups have not proceeded expeditiously and, in
fact, will take many more years to complete. See, e.g., Katherine Probst, Resources for the Future,
Long-Term Stewardship and the Nuclear Weapons Complex: The Challenge Ahead 1-3,14-16 (1988); Interim
Report of the Federal Facilities Environmental Restoration Dialogue Committee 6-8 (1993).
These statutory provisions also require EPA to follow CERCLA public participation
requirements at federal facilities. As discussed earlier, EPA has considerable discretion under
CERCLA to involve actively communities of color and low-income communities in the cleanup
process. The use of site-specific advisory boards at certain federal facilities has generally been
154
-------
viewed as a good mechanism for community involvement that could be used at more federal and
non-federal sites.
CERCLA Section 120 (h) provides EPA with another opportunity to enhance community
participation in federal facility cleanups. Section 120(h) provides an exception to the general rule
that all necessary remedial action must be taken before a federal facility is transferred or sold to any
person. In order to qualify for the exception, several conditions must be met. 42 U.S.C. § 9620(h).
For example, EPA must determine that the intended use of the property is consistent with
protection of human health and the environment and that the transfer will not substantially delay
necessary response actions. In addition, the federal agency must provide notice, by publication in a
newspaper of general circulation in the vicinity of the property, of the proposed transfer and of the
opportunity for the public to submit written comments on the suitability of the property for
transfer. Id.
This is a general provision that imposes only minimal public participation requirements. It
could be used, however, to help ensure that affected communities are informed of and have the
opportunity to participate in decisions that allow the transfer of federal facilities prior to the
completion of response work. In addition, the statute does not preclude more extensive public
participation efforts. For example, EPA could notify local residents of the proposed transfer
through direct mailings or public meetings.
E. Administrative Record Public Participation Procedures
Section 113(k)(l) requires EPA to establish an administrative record upon which to base
the selection of response actions. The administrative record must be available to the public at or
near the facility. EPA may also place duplicates of the records at any location. 42 U.S.C. §
9613(k)(l). EPA has issued regulations implementing this section. 40 C.F.R. Subpart 1.
Section 113(k)(2) requires EPA to issue regulations establishing procedures for
"appropriate participation of interested persons" in the development of the administrative record on
which EPA bases the selection of removal actions and on which judicial review of removal actions is
based. 42 U.S.C. § 9613(k)(2). Section 113(k)(3) requires EPA to provide for "participation of
interested persons" in the development of the administrative record on which EPA will base the
selection of remedial actions and on which judicial review of remedial actions is based. 42 U.S.C. §
9613(k)(3). The participation procedures developed must include "at a minimum": notice to
potentially affected persons accompanied by a brief analysis of the plan and alternative plans that
were considered; a reasonable opportunity to comment and provide information regarding the plan;
an opportunity for a public meeting in the affected area; a response to each of the significant
comments, criticisms, and new data submitted in written or oral presentations; and a statement of
the basis and purpose of the selected action. Id.; 40 C.F.R. Subpart 1.
These provisions require EPA to make administrative records available to the public at or
near each CERCLA facility and authorizes EPA to place duplicates of them at any location.
Therefore, the provisions could be used to distribute widely administrative records and to ensure
that affected communities have easy access to documents pertaining to nearby facilities. The statute
presumably would not preclude publicizing the availability of the administrative record and
155
-------
distributing explanatory materials to communities that could assist them in understanding and using
the record effectively.
The statute also gives EPA considerable discretion in developing public participation
procedures for the development of administrative records. Participation in the development of
administrative records can help affected communities have a more meaningful role in Superfund
cleanup decisions. The broad language of the statute should allow EPA to use proactive and
innovative approaches to foster such public involvement. For example, EPA could attend
community meetings to solicit input and could publicize site issues at local libraries. It has also been
suggested that convening community working groups could foster meaningful public involvement.
See Deeohn Ferris, Communities of Color and Hazardous Waste Cleanup: Expanding Public Participation in
tbe.Federal Superfund Program, 21 FORDHAM URBAN L.J. 671, 682 (Spring 1994) [hereinafter "Ferris"].
F. Public Participation Requirements for Remedial Action Plans
Section 117(a) requires that prior to the adoption of any plan for remedial action, "as
appropriate," EPA must publish notice and a brief analysis of the proposed plan and make the plan
available to the public. 42 U.S.C. § 9617(a). EPA must also provide a reasonable opportunity for
submission of comments and provide an opportunity for a public meeting at or near the facility
regarding the proposed plan and any proposed findings. Transcripts of meetings must be kept and
made available to the public. The statute also states that the notice and analysis required must
include sufficient information as necessary to provide a reasonable explanation of the proposed plan
and alternative proposals considered. Id. Section 117(d) explains that the term "publication,"
includes, at a minimum, publication in a major local newspaper of general circulation. 42 U.S.C. §
9617(d). In addition, each item received, developed, published, or made available to the public must
be available for public inspection and copying at or near the facility. 42 U.S.C. § 9617(a).
Section 117(b) requires that notice of a final remedial action plan must be published and the
plan made available to the public before a remedial action is commenced. 42 U.S.C. § 9617(b). The
final plan must be accompanied by a discussion of any significant changes and the reasons for such
changes in the proposed plan and a response to each of the significant comments, criticisms, and
new data submitted in written or oral presentations. Id.
Section 117(c) provides that if, after the adoption of a final remedial action plan, a remedial
or enforcement action is taken or a settlement is entered into that differs in any significant respect
from the final plan, EPA or the state must publish an explanation of the significant differences and
the reasons such changes were made. 42 U.S.C. § 9617(c). Notice must also be given to
communities of any changes to the remedial action plan.
The public participation provisions with respect to remedial action plans represent the core
of the CERCLA public participation program. In addition, EPA has issued regulations that provide
more detail on CERCLA public involvement procedures for remedial activities. See, e.g., 40 C.F.R.
§ 300.430(c). EPA also has developed regulations that address public involvement in removal
actions. See 40 C.F.R. § 300.415(n). The statutory language is specific in many cases with respect to
EPA's obligations but also provides considerable discretion. Thus, EPA can promote
environmental justice by integrally involving affected communities in the remedial selection process,
156
-------
both by proactively implementing the core statutory requkements and by using its discretion to
support involvement through increased use of other mechanisms, such as community advisory
groups at individual sites.
II. STANDARD SETTING/RULE-MAKING
Some of the rule-making authorities contained in CERCLA are broad in scope and provide
considerable discretion to EPA, while some authorities are more focused. For example, EPA is
granted broad rule-making authority with respect to establishing the procedures and standards for
responding to hazardous substance releases. The statute also provides considerable discretion to
EPA to develop guidelines for using a variety of its authorities, including its enforcement and
emergency response authorities. The statute also, however, directs EPA to take steps that are more
specific, such as completing assessments and evaluations of facilities by certain dates. The Act
contains rule-making authority for the release reporting requirements of the Act, including the
authority to designate hazardous substances and their reportable quantities. Finally, the Act contains
several provisions establishing the standards for EPA to use in selecting appropriate remedial
actions.
This Part discusses standard setting and rule-making authorities contained in CERCLA in
the following areas: (a) designation of hazardous substances and reportable quantities; (b) the
National Contingency Plan; (c) assessment and listing of facilities; and (d) remedy selection.
A. Designation of Hazardous Substances and Reportable Quantities
CERCLA includes a program that requires facilities to report releases of hazardous
substances. The releases covered by this program are typically sudden and accidental releases that
may require some type of emergency response. The information about such releases is reported to
the National Response Center established under the Clean Water Act. The Center then notifies the
appropriate federal and state entities. Federally permitted releases are not covered by these
provisions. The release reporting program is separate from the core Superfund program, which
covers the cleanup of facilities contaminated by prior releases of hazardous substances.
Section 102(a) provides broad authority to EPA to promulgate and revise, as appropriate,
the regulations that designate those hazardous substances that, when released into the environment,
"may present substantial danger to the public health or welfare or the environment." 42 U.S.C. §
9602 (a). EPA must also promulgate regulations establishing what quantity of release of any
hazardous substance must be reported. Id. Section 103(a) establishes the actual duty to report
releases.
This section provides general authority that arguably could allow EPA to take into account
environmental justice considerations in designating hazardous substances and their reportable
quantities. For example, EPA could consider, as appropriate, cumulative exposure scenarios,
sensitive populations, and consumption patterns in setting or revising threshold reporting quantities
in its regulations. See 40 C.F.R. Part 302.
157
-------
B. National Contingency Plan
The regulations and operating procedures for the Superfund program are contained in the
National Contingency Plan.. See 40 C.F.R. Part 300. Section 105(a) directs EPA to revise the NCP
to include a national hazardous substance response plan that establishes procedures and standards
for responding to releases of hazardous substances. 42 U.S.C. § 9605(a). The statute states that the
plan must include, among other things: methods for discovering and investigating facilities; methods
for evaluating and remedying releases; and methods and criteria for determining the appropriate
extent of removal and remedial actions. 42 U.S.C. § 9605(a)(l)-(3). In addition, the plan must
include criteria for determining priorities among releases or threatened releases throughout the U.S.
for the purpose of taking remedial and removal actions. Criteria and priorities must be based, in
part, on "relative risk or danger to the public health or welfare or the environment," taking into
account to the extent possible the "population at risk" and several other considerations set out in
the statute, as well as "other appropriate factors." 42 U.S.C. § 9605(a)(8)(A).
These provisions give EPA broad authority and, thus, allow EPA to consider environmental
justice concerns in developing and maintaining the basic components of the Superfund program.
These components include the methods for discovering and investigating facilities, evaluating and
remedying releases or threats of releases, and determining the appropriate extent of removal and
remedial work. The statute also specifically authorizes EPA to take into account the "population at
risk" in setting criteria and priorities, as well as other "appropriate factors." These provisions could
be used by EPA to take into account environmental justice concerns in setting priorities among
NPL and iion-NPL sites, as well as for determining whether sites should be listed on the NPL. See
Memorandum from Howard F. Corcoran, U.S. EPA Office of General Counsel, Environmental
Justice Law Survey (Feb. 25,1994) at 3 [hereinafter "OGC 1994 Memorandum"].
C. Assessment and Listing of Facilities
• A key aspect of the Superfund program is determining which sites pose the greatest risk to
human health and the environment. The sites that pose the greatest risks are listed on the NPL.
EPA uses the hazard ranking system (HRS), 40 C.F.R. Part 300, app. A, to determine whether a site
should be placed on the NPL. The Comprehensive, Environmental Response, Compensation, and
Liability Information System (CERCLIS) is the database containing all sites where releases of
hazardous substances have occurred and that EPA may consider for inclusion in the Superfund
program. CERCLIS is available on EPA's web site online. U.S. EPA Office of Solid Waste and
Emergency Response, CERCLIS Hazardous Waste Sites, available at
www.epa.gov/superfund/sites/cursites (last modified Oct. 16, 2001).
CERCLA Sections 116 (a) and (b) set out the time frames for EPA to accomplish "to the
maximum extent practicable" completion of preliminary assessments of facilities that were on
CERCLIS as of October 17,1986 and completion of any necessary inspections of such sites. 42
U.S.C. § 9616(a), (b). The section also sets time frames for evaluating CERCLIS facilities when
EPA determines that evaluations are warranted based on site inspections and preliminary
assessments. CERCLIS facilities listed after October 17, 1986 must be evaluated by EPA within
four years after the date of the listing, if EPA determines that such an evaluation is needed. Id.
Evaluations must be carried out according to the criteria established in the NCP for determining
which releases will be included on the National Priority List, See 42 U.S.C. § 105(a)(8).
158
-------
This provision could possibly be used to require EPA to meet its statutory obligation to
evaluate facilities in communities of color and low-income communities, if such evaluations have
not been completed within the appropriate time frames. This section does not address the factors
that EPA should take into account in determining priorities among assessments or determining
whether evaluations are warranted on the basis of site inspections or preliminary assessments.
Because the statute is silent on these points and Section 105(a) gives EPA broad general authority to
determine methods for investigating and evaluating facilities, it is arguable that EPA could consider
environmental justice concerns, such as the cumulative exposures suffered by a particular
community, in determining whether a site should be evaluated. In addition, the statute provides
considerable discretion to EPA to develop the criteria used in site evaluations. As discussed above,
the criteria for evaluations and for determining priorities among releases for inclusion on the NPL
must be based, in part> on "relative risk or danger to the public health or welfare or the
environment," taking into account to the extent possible the "population at risk" and several other
considerations set out in the statute, as well as "other appropriate factors." 42 U.S.C. §
9605(a)(8)(A).
Section 105 (d) provides that any person who is affected by a release or threatened release of
a hazardous substance may petition for a preliminary assessment of the hazard to public health and
the environment. 42 U.S.C. § 9605(d). EPA must perform the assessment within 12 months or
explain why the assessment is not appropriate, if an assessment has not akeady been conducted. If
the assessment indicates a threat to health or the environment, EPA must promptly evaluate the
release in accordance with the HRS. Id.
This section provides a generic tool that could be used by communities to help ensure that
EPA takes note of and addresses the potential risks caused by hazardous substance releases or
threats of releases in their communities. EPA could increase its responsiveness to petitions,
publicize the availability of this mechanism to communities of color and low-income communities,
and assist communities in using this tool in an effective manner. In addition, because the statutory
language does not provide guidance as to how or whether EPA should conduct a preliminary
assessment in response to a petition, EPA presumably could use its discretion to take environmental
justice concerns into account in making such determinations. See also Section 105(a) (granting
authority to EPA to establish methods for evaluating and setting priorities among releases); 40
C.F.R. § 300.420(b)(5) (regulations describing petition requirements).
CERCLA Section 118 directs EPA in taking response actions, bringing enforcement
proceedings, and listing sites on the NPL to place a high priority on facilities where the release of
hazardous substances has resulted in the closing of drinking water wells or has contaminated a
principal drinking water supply. 42 U.S.C. § 9618. This is a general provision that could be used to
help ensure that communities of color and low-income communities with contaminated drinking
water are given priority in terms of allocating Fund resources, as well as enforcement resources.
Finally, Section 104(i)(ll) provides that if a health assessment or other study contains a
finding that the exposure concerned presents significant risk to public health, the President must
take steps to reduce exposure and eliminate or substantially mitigate the risk. Steps include, but are
not limited to providing alternative water supplies and permanent or temporary re-location of
individuals. The President may also take steps to reduce the exposure of any person to hazardous
substances to such level as the President deems necessary to protect human health when
159
-------
information is insufficient to determine a significant human exposure level with respect to a
hazardous substance. 42 U.S.C. § 9604® (11). (See also Part VI, discussing Section 104(i)(6)(H),
which requires prompt evaluation of sites for placement on the NPL when health assessments show
a serious threat).
This is a general provision that could be used by EPA to protect public health in.
communities of color and low-income communities. The statute requires EPA to take steps to
respond to health assessments and provides powerful tools, including alternative water supplies and ,
relocations. Notably, the statute also gives EPA the authority to take steps to reduce exposures even
when information may be insufficient. See U.S. EPA, Interim Policy on the Use of Permanent
Relocation As Part of Superfund Remedial Actions (U.S. Environmental Protection Agency, pub.,
EPA 540F-98-033, June 30,1999).
D. Remedy Selection
The statute sets out the basic framework and standards for EPA to work with in selecting a
remedial action for a site. The NCP builds on these statutory requirements. See 40 C.F.R. § 300.430.
Section 121(b) establishes the general rules or core approach that EPA uses for selecting
remedial actions. The statute states a preference for permanent treatment remedies over other types
of remedies: "Remedial actions in which treatment which permanently and significantly reduces the
volume, toxicity or mobility of the ha2ardous substances, pollutants and contaminants . . . are to be
preferred over remedial actions not involving such treatment." 42 U.S.C. § 9621 (b). In addition, the
statute provides that the offsite transport and disposal of hazardous substances or contaminated
materials without such treatment should be the least favored alternative remedial action where
practicable treatment technologies are available. Id.
This section also requires EPA to conduct an assessment of permanent solutions and
alternative treatment technologies or resource recovery technologies that, in whole or in part, will
result in a "permanent and significant decrease in the toxicity, mobility, or volume of the hazardous
substance, pollutant or contaminant." Id. The statute directs that in making such assessments, EPA
must specifically address the long-term effectiveness of various alternatives. Furthermore, in
assessing alternative remedial actions, EPA must, at a minimum, take into account the following
factors: (1) long-term uncertainties associated with land disposal; (2) the goals, objectives, and
requirements of the Solid Waste Disposal Act; (3) the persistence, toxicity, mobility, and propensity
to bioaccumulate of hazardous substances and their constituents; (4) short- and long-term potential
for adverse health effects; (5) long-term maintenance costs; (6) potential for future remedial action
costs, if the alternative remedial action were to fail; and (7) the potential threat to human health and
the environment associated with excavation, transportation, and redisposal or containment. 42
U.S.C. § 9621 (b)(l)(A)-(G).
Finally, EPA is required under Section 121(b) to select a remedial action that is protective of
human health and the environment, that is cost-effectives and that utilizes permanent solutions and
alternative treatment technologies or resource recovery technologies to the maximum extent
practicable. If EPA selects a remedial action that does not follow the preferences established under
the remedy selection provisions of the Act, EPA must publish an explanation. This section also
states that EPA may select an alternative remedial action meeting the objectives of the statute
160
-------
whether or not such action has been achieved in practice at any other facility that has similar
characteristics. However, in making such a selection EPA may take into account the degree of
support for the remedial action by parties interested in the site. 42 U.S.C. § 9621(b)(2).
The CERCLA cleanup provisions state a strong preference for cleanups that are
permanently protective of public health. This preference, along with other stated goals, is consistent
with ensuring that protective remedies are selected for sites in communities of color and low-income
communities. Therefore, EPA should be able to consider environmental justice factors in
developing and implementing remedy selection procedures. In addition to the general authority
granted under this section, the statute specifically requires EPA to take into account in selecting
among alternative remedies "the propensity to bioaccumulate" of hazardous substances. See 42
U.S.C. § 9621 (b)(l)(C). .
The statute also attempts to hold EPA accountable in circumstances in which it does not
select permanent treatment remedies by requiring an explanation. This provision, in particular,
could benefit communities of color if used proactively, in light of studies that have indicated that
EPA is more likely to select non-treatment remedies for sites in communities of color than for sites
in white communities. See Ferris at 673 (citing Lavelle & Coyle).
The NCP builds upon the statutory requirements by directing that EPA analyze various
remedial alternatives on the basis of nine evaluation criteria that are divided into three categories.
The first category is "threshold criteria" which includes overall protection of human health and the
environment and compliance with any legally applicable or relevant and appropriate standards,
requirements, criteria, or limitations under federal environmental law, or under more stringent state
environmental or facility siting laws. The second category is "balancing criteria" which includes:
long-term effectiveness and permanence; reduction in toxicity, mobility, or volume through
treatment; short-term effectiveness; implementability; and costs. The third category is "modifying
criteria" which includes state acceptance and community acceptance. 40 C.F.R. § 300.430(e)(9)&(Ł).
The nine regulatory criteria do not specifically address environmental justice factors but like
the statutory provisions, seem to allow for consideration of such factors. Overall protection of
human health and the environment and long-term effectiveness of remedial alternatives, for
example, are criteria that could allow EPA to include consideration of environmental justice factors,
such as sensitive populations.
In addition to the NCP regulatory provisions, EPA has issued memoranda and guidance that
address remedy selection issues. Some of these documents specifically address environmental justice
concerns. For example, a May 1995 memorandum titled "Land Use in the CERCLA Remedy
Selection Process" references environmental justice issues several times. The memorandum notes
that the type of information that may aid EPA in determining the reasonably anticipated future land
use for a site, and consequently the appropriate type of remedy, includes "environmental justice
issues." See U.S. EPA, Office of Solid Waste and Emergency Response Directive No. 9355.7-04 at
2, 5, and 6 (May 25 1995).
Section 121(c) provides that if EPA selects a remedial action that results in any hazardous
substance, pollutant, or contaminant remaining at a site, EPA must review the remedial action no
less often than every five years after the initiation of the remedial action to assure that human health
161
-------
and the environment are being protected. 42 U.S.C. § 9621 (c). In addition, if EPA determines after
die five-year review that cleanup action is appropriate, EPA must take or require such action. Id.
This is an important statutory provision for purposes of protecting communities of color
and low-income communities. EPA's failure to conduct five-year reviews in a timely manner has
been well-documented. See, e.g., KATHERINE PROBST, SUPERFUND'S FUTURE: WHAT WILL IT COST,
A REPORT TO CONGRESS 63 (2001). EPA has taken steps to meet its five-year review obligations,
but it remains to be seen whether it can adequately address the back log and keep up with current
demands. Meeting the five-year review requirements is particularly important for communities of
color to the extent that EPA is more likely to select containment remedies for sites in those
communities than in white communities. See Ferris at 673. In addition, remedies that allow
contaminants to remain onsite may pose a greater risk to communities of color and low-income
communities than other communities because of cumulative exposures, consumption patterns, and
the presence of sensitive populations. Low-income communities may also have limited resources
for taking steps to ensure that EPA meets its review obligations. Thus, this provision could be used
to protect these communities from risks posed by contaminants that remain after site cleanups are
completed.
Section 121(d) includes general language about the level of cleanup that must be achieved
by a remedial action. Specifically, the statute requires EPA to select and require remedial actions
that "shall attain a degree of cleanup of hazardous substances, pollutants, and contaminants released
into the environment and of control of further release at a minimum which assures protection of
human health and the environment." 42 U.S.C. § 9621 (d). The provision also states the general rule
that remedial actions must require at their completion a level or standard of control for hazardous-
substances, pollutants, or contaminants onsite that at least attains any legally applicable or relevant
and appropriate standards, requirements, criteria, or limitations under federal environmental law, or
under more stringent state environmental or facility siting laws (ARARs). Section 121(d)(4) sets out
certain exceptions to the requirement that cleanups meet ARARs.
These are general provisions that apply to all cleanups. Arguably, EPA could consider
environmental justice factors in determining the degree of cleanup, even if ARARs do not, because
of the general standard established ("protection of human health and the environment") and the
requirement that cleanups at a minimum ("at least") attain ARARs. It should be noted that state
environmental justice laws can be considered ARARs for cleanups in those states.
E. Assessment of Natural Resource Damages Regulations
CERCLA Section 301(c) requires EPA to publish regulations for the assessment of
damages for injury to, destruction of, or loss of natural resources resulting from a release of oil or a
hazardous substance. 42 U.S.C. § 9651 (c). Section 107(a)(4)(C) provides that responsible parties
may be liable for damages for injury to, destruction of, or loss of natural resources, including the
reasonable costs of assessing such injury, destruction, or loss resulting from such a release. 42 U.S.C.
§ 9607(a)(4)(c). Section 107 (f) provides that only natural resources owned; controlled, or held in
trust by a government entity, such as the federal government, state governments and Tribes are
covered. 42 U.S.C. § 9607(f).
162
-------
Section 301 (c) requkes that the regulations specify standard procedures for simplified
assessments requiting minimal field observation. 42 U.S.C. § 965 l(c). The regulations must also
include alternative protocols for conducting assessments in individual cases to determine the type
and extent of short- and long-term injury, destruction, or loss. The regulations must identify the
best available procedures to determine such damages, including both direct and indirect injury,
destruction, or loss and must take into consideration factors including, but not limited to,
replacement value, use value, and ability of the ecosystem or resource to recover. The statute
specifies that the regulations must be reviewed and revised as appropriate every two years. Id.
These provisions grant EPA broad authority to develop an approach to assessing natural
resource damages. The regulations could be reviewed and revised, as appropriate, to take into
account environmental justice issues, such as efficiently and effectively assessing damages to natural
resources that low-income and communities of color may rely on for subsistence.
III. PERMITTING AND OTHER APPROVALS
CERCLA does not contain permitting provisions.
IV. DELEGATION OF PROGRAMS TO STATES AND TRIBES
CERCLA is one of the few major programs EPA administers that is not delegated to the
states or Tribes to implement. The statute does, however, provide for a state and tribal role in
program implementation.
A. Consultation Requirements
CERCLA Section 103(c)(2) requires EPA to consult with affected states before determining
any appropriate remedial action at a Superfund site. 42 U.S.C. § 9603(c)(2). Section 126(a)
provides that the governing body of a Tribe must be afforded substantially the same treatment as a
state with respect to the key provisions of the statute. 42 U.S.C. § 9626(a). For example, Tribes
must be consulted with and given the opportunity to submit priorities for remedial actions.
B.
State Assurances
CERCLA Section 104 (c)(3) requkes certain assurances from the state in which a release of
a hazardous substance or threat of release occurs, before EPA can perform a remedial action. 42
U.S.C. § 9604(c)(3). These assurances are provided in a contract or cooperative agreement between
EPA and the state. A key assurance required is that the state will, among other things, assure all
future maintenance of removal and remedial actions. See 40 C.F.R. § 300.520.
The requkement that states provide assurances with respect to future maintenance of
removal and remedial actions is potentially important for advancing envkonmental justice goals.
Particularly at sites where contaminants remain after cleanup, but at other sites as well, it is critical
that the response action taken at the site remains effective. This may requke a range of activities by
a state, such as maintaining the integrity of a fence or clay cap, or ensuring the proper functioning of
163
-------
a groundwater pump and treatment system. Effective operation and maintenance (O&M) is
fundamental to ensuring that communities are protected by the remedy that was completed at a site.
Ensuring effective O&M at sites in low-income communities can be a particular challenge because
O&M is typically the responsibility of state and local authorities, many of which have limited
resources. In addition, communities of color and low-income communities may be particularly
vulnerable to the potential negative health effects of failed O&M. Accordingly, EPA could use this
provision to ensure that states and local governments have adequate resources and actually meet
their obligations to maintain removal and remedial work provided by EPA.
C. Cooperative Agreements and Contracts with States and Tribes
Section 104(d) allows states and Tribes to apply to EPA to carry out actions authorized by
Section 104 of CERCLA, including removal and remedial actions, investigations, monitoring, and
information gathering. 42 U.S.C. § 9604(d). EPA must determine if the state or Tribe has the
capability to carry out any or all such actions in accordance with the criteria for determining
priorities among releases or threatened releases that EPA is required to establish in the NCP. Id; see
also 42 U.S.C. § 105(a)(8). EPA also must determine if the state or Tribe has the capability to carry
out related enforcement actions. 42 U.S.C. § 9604(d). If the state or Tribe meets EPA's
requirements, EPA may enter into a contract or cooperative agreement with the state or Tribe to
carry out response actions. The statute states that contracts and cooperative agreements are subject
to the terms and conditions that EPA prescribes. Contracts and cooperative agreements may cover
a specific facility or facilities. Id.; 40 C.F.R. Part 300, Subpart F; 40 C.F.R. Part 35, Subpart C.
This provision grants broad authority to EPA to impose terms and conditions on
cooperative agreements that presumably could be used to forward environmental justice goals. In
assessing a state's capability to carry out actions under the Act, EPA could also promote
environmental justice goals. For example, EPA could assess whether the state has a record of
enforcing its environmental laws consistently in communities of color and white communities. EPA
could also consider whether a state is likely to set cleanup priorities in a manner that takes into
account environmental justice concerns.
V. ENFORCEMENT
CERCLA contains a variety of enforcement authorities and penalty provisions. The
following is a brief outline of the key provisions. Because they are generic provisions, no analysis is
provided and the same considerations with respect to environmental justice would apply to these
provisions, as apply to most penally provisions in environmental laws. For example, EPA
enforcement authorities should be applied consistently and aggressively in all situations in which
private parties or federal facilities fail to comply with administrative orders. This may be particularly
important with respect to Superfund sites, given the research that indicates that EPA has tended to
enforce more aggressively in white communities. See Lavelle & Coyle. In addition, CERCLA and
other statutes' enforcement provisions which allow for punitive damages or fines in excess of
general caps could be implemented in a manner that takes into account the special harm that
noncompliance can cause to members of communities of color and low-income communities
because of cumulative exposures and consumption patterns. Similarly, statutory provisions that
allow for consideration of the "gravity" of the violation or allow for consideration of odier "factors
164
-------
as justice may requke" may allow EPA to include environmental justice considerations in bringing
enforcement actions. For a fuller discussion of statutory enforcement authorities for advancing
environmental justice, see Chapter 5.
In addition to the standard enforcement provisions, CERCLA contains a provision, Section
118, discussed in Part II of this chapter, that directs EPA in bringing enforcement proceedings to
place a high priority on facilities where the release of hazardous substances has resulted in the
closing of drinking water wells or has contaminated a principal drinking water supply. 42 U.S.C. §
9618.
A.
Fines and Penalties
Section 109(a) provides for Class I administrative penalties for violations of certain
provisions of and orders issued under CERCLA. Factors to consider in determining the amount of
administrative penalties include the nature, circumstances, extent, and gravity of the violation and
"such other matters as justice may require." 42 U.S.C. § 9609(a). Section 109(b) provides for Class
II administrative penalties for violations of certain provisions of and orders issued under the Act.
Penalties are assessed and collected in the same manner and subject to the provisions of Section 554
of Title 5 (Administrative Procedures Act). 42 U.S.C. § 9609(b). Section 109(c) authorizes actions
in U.S. District Court for the assessment and collection of penalties of not more than $25,000 per
day in a variety of situations including, but not limited to, violations of administrative orders,
consent decrees, and agreements. 42 U.S.C. § 9609(c).
CERCLA also contains a number of other provisions authorizing fines and penalties for
specific violations of the Act. Section 103 (b) provides for fines and imprisonment for failure to
comply with the hazardous substance release reporting requirements of CERCLA. 42 U.S.C. §
9603(b). Section 106(b) provides that in an action brought in U.S. District Court to enforce an
abatement order, a person who violates an order may be fined not more than $25,000 for each day
in which the violation occurs or failure to comply continues. 42 U.S.C. § 9606(b). Section 122(7)
provides that a potentially responsible party that fails to comply with a term or condition of an
administrative order, consent decree, or agreement may be subject to a civil penalty. 42 U.S.C. §
96220. Section 104(e)(5)(B) provides that EPA may request the Attorney General to bring a civil
action to compel compliance with an EPA order requiring access to information, entry to a facility,
or inspection and sampling. This section also authorizes courts to assess civil penalties not to
exceed $25,000 for each day of noncompHance. 42 U.S.C. § 9604(e)(5)(B).
B. Determination of Amounts of Liability
Section 107 (c) (2) establishes certain exceptions to the (rarely used) general limitations on
CERCLA liability that are set out in Section 107(c)(l). An owner or operator of a facility or other
responsible person is liable for the full and total costs of response and damages, and does not
benefit from the cap on liability provided in Subsection 107(c)(l) if an exception applies. The
exceptions set out in Section 107(c)(l) include: willful misconduct, willful negligence, or if the
primary cause of a release was a violation of applicable safety, construction, or operating standards
or regulations. 42 U.S.C. § 9607(c)(2).
165
-------
Section 107(c) (3) provides that any person liable for a release who fails without sufficient
cause to properly provide removal or remedial action in response to an EPA order may be liable for
punitive damages in an amount at least equal to and not more than three times the amount of any
costs incurred by the Superfund as a result of such failure. 42 U.S.C. § 9607(c)(3).
C.
State Enforcement
Section 121(e)(2) provides that a state may enforce any federal or state standard,
requirement, criteria, or limitation applicable to a remedial action in the U.S. District Court in the
district in which the facility is located. This section also authorizes consent decrees with stipulated
penalties. 42 U.S.C. § 9621 (e)(2).
D. Public Participation Requirements for Cleanup Agreements, Consent
Decrees, and Cost Recovery and De Minimis Settlements
Section 122(d)(2) provides that at least 30 days before a final judgment is entered into
between EPA and parties responsible for the performance of a remedial action, the Attorney
General must provide an opportunity for persons not named as parties to the action to comment on
the proposed judgment before its entry by the court as a final judgment. 42 U.S.C. § 9622(d)(2).
The Attorney General is required to consider and file with the court any written comments, views or
allegations relating to the proposed judgment. The Attorney General may withdraw or withhold
consent to the proposed judgment if the comments, views, and allegations concerning the judgment
disclose facts or considerations that indicate that the proposed judgment is inappropriate, improper,
or inadequate. Id. The statute gives EPA the authority to grant covenants not to sue to responsible
parties in certain ckcumstances, and the appropriateness of such covenants when included in
consent decrees would also be subject to public comment. Id.; see also 42 U.S.C. § 9622(f).
Section 122(i) provides that at least 30 days prior to finali2ing a settlement with a de minimis
party or a settlement of an administrative order for recovery of costs incurred by the government,
notice of the proposed settlement must be published in the Federal'Register by the head of the
department or agency that has jurisdiction over the settlement. 42 U.S.C. § 9622(i). The notice
must identify the facility concerned and the parties to the proposed settlement. Persons who are not
parties to the proposed settlement must be given a thirty-day period to file written comments
relating to the proposed settlement. The head of the department or agency must consider any
comments filed in determining whether or not to consent to the proposed settlement, if such
comments disclose facts or consideration which indicate the proposed settlement is inappropriate,
improper, or inadequate. Id.
These provisions are rarely used by members of the public as a means of participating in.
enforcement settlements for the cleanup of sites in their communities. The statute does not
preclude EPA or the Justice Department from more proactively disseminating proposed settlements
to communities and seeking their comments. Nor does it preclude EPA from providing explanatory
materials or enlarging the period of time for comments. In fact, communities may have information
that could bear on the appropriateness of a settlement, such as facts about exposure patterns or past
practices of site owners.
166
-------
E.
Citizen Suits
Section 310 provides authority for any person to commence a civil action on his own behalf
against any person, including the United States, who is in violation of any standard, regulation,
condition, requirement, or order that has become effective under the statute. It also authorizes
actions against the EPA or any other officer of the U.S. where there is alleged failure to perform any
act or duty which is not discretionary, including duties under the federal facility cleanup provisions ,
of CERCLA. However, citizen suits may not be brought to enforce the research, development, and
demonstration duties set out in Section 311. 42 U.S.C. § 9660. These provisions also set out
limitations on and procedures for citizen suits that are common to many of the environmental laws.
42 U.S.C. § 9659.
Citizen suits can be brought to enforce a wide range of CERCLA-related requirements. For
example, citizen suits can be brought against private parties for failure to comply with the terms of
an administrative consent order or settlement that requires them to cleanup a site. Citizen suits can
also be brought against EPA for failure to meet its statutory obligations. For example, citizens could
sue to require EPA to act upon a Agency for Toxic Substances and Disease Registry health
assessment, if such action is required by statute. It may be difficult, however, for a citizen suit to
succeed in challenging an EPA remedy selection decision. Based on the statutory language in
Section 113(f) of CERCLA, courts typically bar judicial review of selected remedial actions until the
cleanup work has been completed. See Larry Schnapf, Cleaning Up Abandoned or Inactive Contaminated
Sites in THE LAW OF ENVIRONMENTAL JUSTICE: THEORIES AND PROCEDURES TO ADDRESS
DISPROPORTIONATE RISKS 537-40 (Michael B. Gerrard, ed., 1999).
VI. INFORMATION GATHERING (RESEARCH, MONITORING,
AND REPORTING)
CERCLA contains a wide range of information gathering and related authorities. EPA is
given considerable discretion to conduct investigations and monitoring, and to requite record-
keeping. Numerous reporting requirements are also imposed on EPA in connection with its
administration of the Superfund program. In addition, various reporting requirements are imposed
on federal government agencies in their capacity as owners of facilities contaminated with hazardous
substances. CERCLA also establishes several hazardous substance research programs.
A. Monitoring
Section 104(b) gives EPA broad authority to undertake "investigations, monitoring, surveys,
testing, and other information gathering" as necessary or appropriate to identify the release, source,
and nature of a hazardous substance and the extent of the danger to the public health, welfare, or
the environment. EPA may use this authority whenever it determines a response action is necessary,
when it has reason to believe that a release has occurred or is about to occur, or when it has reason
to believe that illness, disease, or complaints of illness may be attributable to exposure to a
hazardous substance and that a release may have occurred. 42 U.S.C. § 9604(b).
Section 104(e) grants EPA broad authority to request information, gain access to facilities
and documents, enter facilities, and inspect and take samples when there is a reasonable basis to
167
-------
believe there may be a release or a threat of release of a hazardous substance. The authority is
granted for purposes of determining the need for, or choice of, response action or for enforcing the
Act. 42 U.S.C. § 9604(e).
These provisions give EPA broad authority and substantial discretion and, therefore, could
be used to benefit affected communities by ensuring that EPA and the communities have the
information they need to address health and environmental problems caused by hazardous
substances. The statute specifically authorizes EPA to respond to complaints from communities
through investigations, monitoring, surveys, testing, and other information gathering activities.
B. Reporting and Record-Keeping
In general, CERCLA's record-keeping provisions help ensure that information is available to
regulators and, as appropriate, to communities about the hazardous substances that are used by
regulated entities. Section 103(d) provides broad authority to EPA to require record-keeping with
respect to location, title, or condition of a facility and the identity, characteristics, quantity, origin, or
condition of hazardous substances. 42 U.S.C. § 9603(d). This is a broad provision of general
applicability. EPA could examine, and amend as appropriate, its record-keeping requirements under
CERCLA to ensure that they are adequate for providing EPA, health agencies, and the public with
sufficient information about hazardous substances and the risks they pose to communities of color
and low-income communities.
1. Federal Facility Reporting Requirements
Section 120(b) provides that each department, agency, and instrumentality of the United
States must add information on contamination from each facility that it owns or operates to die
inventory of federal agency hazardous waste facilities required under the Solid Waste Disposal Act,
if such contamination affects contiguous or adjacent property. 42 U.S.C. § 9620(b). A description
of monitoring data obtained must be included. Id.
Section 120(c) requires EPA to establish a special Federal Agency Hazardous Waste
Compliance Docket that contains information about contaminated federal facilities including, for
example, information submitted by federal facilities pursuant to the Solid Waste Disposal Act and
information about releases of hazardous substances required to be reported under Sectionl03 of
CERCLA. 42 U.S.C. § 9620(c). The docket must be available for public inspection at reasonable
times. EPA is required to publish in the Federal Register every six months the list of federal
facilities that have been included in the docket during the immediately preceding six-month period.
The publication also must indicate where in the appropriate EPA regional office additional
information may be obtained about any facility on the docket. The statute further directs EPA to
establish a program to provide information to the public about facilities included in the docket. Id.
Section 120(e)(3) provides that each federal agency is required to include in its annual
budget submissions to Congress a review of alternative agency funding which could be used to
provide for the costs of remedial action. 42 U.S.C. § 9620(e)(3). The budget submission must also
include a statement of the hazard posed by the facility to human health, welfare, and the
environment and identify specific consequences of failure to begin and complete remedial action.
Id.
168
-------
Section 120(e)(5) requkes each agency responsible for compliance with CERCLA to
furnish annual progress reports to Congress. The reports must include, but are not limited to: (1)
the progress in reaching interagency agreements with EPA for the cleanup of facilities; (2) the
specific cost estimates and budgetary proposals involved in each interagency agreement; (3) a brief
summary of the public comments regarding each proposed interagency agreement; (4) a description
of the instances in which no agreement was reached the reasons why; (5) a report on progress in
conducting investigations, studies, and remedial actions; and (6) a report on progress in conducting
remedial actions at facilities not listed on the NPL. 42 U.S.C. § 9620(e)(5). The report must also
include a detailed description of the hazard presented by each facility, plans and schedules for
initiating and completing response actions, enforcement status, and an explanation of any
postponements or failure to complete response actions. Reports must be given to the affected
states. Id.
All of these federal facility reporting requirements can help inform communities of health
and environmental threats. The reports can also provide information that enables communities to ,
hold EPA and federal facilities accountable for addressing hazardous substance releases and meeting
their obligations under Section 120. Implementation of these provisions could be improved by, at a
minimum, further publicizing and making reports available to affected communities. Sectionl20(c)
in particular gives EPA considerable discretion with respect to the substance of and process for
dissemination of information about federal facilities by authorizing a program for providing
information to the public.
2. EPA Reporting Requirements
Section 121(c) provides that EPA must report to Congress a list of facilities for which a
five-year review is required because a selected remedial action has resulted in hazardous substances
remaining onsite. 42 U.S.C. § 9621 (c). The results of the reviews and any actions taken as a result
of such reviews must be included in the reports to Congress. Id.
Section 301(h) requkes EPA to submit to Congress an annual report on progress achieved
each year in implementing the statute during the preceding year. 42 U.S.C. § 9651 (h). The report
must include the following: (1) detailed descriptions of each feasibility study carried out at a facility;
(2) the status and estimated date of completion of each study; (3) notice of each study that will not
meet a previously published schedule for completion and the new estimated date for completion; (4)
an evaluation of newly developed feasible and achievable permanent treatment technologies; (5)
progress made in reducing the number of facilities subject to review under the five-year review
provisions for cleanups that result in hazardous substances remaining onsite; (6) a report on the
status of all remedial and enforcement actions; and (7) an estimate of the amount of resources
necessary for each department carrying out the activities under the program to complete the
implementation of all of thek duties. Id.
Section 311(e) requkes EPA to submit to Congress at the time of the annual budget a
progress report on the research, development, and demonstration program authorized under
CERCLA Section 311, including an evaluation of each demonstration project completed in the
preceding fiscal year, findings with respect to the efficacy of demonstrated technologies in achieving
permanent and significant reductions in risks from hazardous wastes, the costs of such demon-
. 169
-------
stration projects, and the potential applicability of, and projected costs for, such technologies at
other hazardous substance sites. 42 U.S.C. § 9660(e).
The reports required under these provisions, similar to the federal facility reports, can assist
communities in tracking Superfund progress, increasing EPA's accountability, identifying issues of
concern, and highlighting potential resources that may be available. EPA could focus on how to
make its reports more accessible, understandable, and helpful to affected communities.
3. Repotting to Potential Injured Parties
Section lll(g) requires EPA to issue regulations with respect to the notice to be provided
to potential injured parties by an owner and operator of any vessel or facility that has released a
hazardous substance. 42 U.S.C. § 961 l(g). This section could provide a powerful mechanism for
alerting communities to threats posed by releases of hazardous substances. EPA could issue
regulations, or amend any current regulations, for example, in a manner that requires proactive
outreach to communities through mechanisms such as direct mailings and the use of lay person
language in notices.
C. Research, Development, and Demonstration
CERCLA establishes a substantial hazardous substances research agenda and set of
programs. The Agency for Toxic Substances and Disease Registry (ATSDR) and the Department of
Health and Human Services (HHS) are charged with implementing some of the programs, but EPA
also has considerable research responsibilities.
1. EPA Research Programs
Section 311(b) authorizes and directs EPA to carry out a program of research, evaluation,
development, and demonstration of alternative or innovative treatment technologies that may be
used in response actions to achieve more permanent protection of human health, welfare, and the
environment 42 U.S.C. § 9660(b). The statute also provides for a demonstration assistance
program that includes selection of sites through a public process and the evaluation of applications
for demonstration projects that use alternative or innovative treatment technologies. Id. The
statute requires that "within 90 days after October 17,1986, and no less often than once every 12
months, thereafter, the Administrator shall publish a solicitation for innovative or alternative
technologies at a state of development suitable for full-scale demonstrations at sites at which a
response action may be undertaken " 42 U.S.C. § 9660(b)(5)(B). The statute provides that in
selecting technologies to be demonstrated EPA must, consistent with the "protection of human
health and the environment," consider several criteria. Among the criteria is die potential for
contributing to solutions to waste problems that pose the greatest threat to human health and which
cannot be adequately controlled under present technologies. 42 U.S.C. § 9660(b).
This section also requires EPA to conduct a technology transfer program including the
development, collection, evaluation, coordination, and dissemination of information relating to the
use of alterative or innovative treatment technologies for response actions. 42 U.S.C. § 9660(b).
EPA is further required to establish and maintain a central reference library for such information
and make it available to the public. 42 U.S.C. § 9660(b)(8).
170
-------
The technology transfer program has the potential to benefit affected communities by
facilitating the development of innovative technologies that could provide more protective cleanups
than are currently available. It also can provide important information through the technology
transfer program that could help communities determine and suggest appropriate remedial actions at
nearby sites. See Ferris at 684 (recommending the establishment of a technologies clearinghouse so
that community groups can locate and advocate a variety of alternative cleanup methods).
Section 311(c) authorizes EPA to conduct and support through grants, cooperative
agreements and contracts, research with respect to detection, assessment, and evaluation of the
effects on and risks to health and environment of hazardous substances and detection of hazardous
substances in the environment. 42 U.S.C. § 9660(c). This provision gives EPA considerable
discretion to design and implement a research program that forwards the study of many issues of
importance to communities of color and low-income communities.
2.
HHS Programs
Section 311(a) requires the Secretary of HHS, in consultation with EPA, to establish and
support a basic research and training program through grants, cooperative agreements, and
contracts. 42 U.S.C. § 9660(a). The basic research (including epidemiological and ecologic studies)
may include, by way of example: research on advanced techniques for detecting and evaluating the
effects on human health of hazardous substances; methods to assess risks to human health
presented by hazardous substances; and methods and technologies to detect hazardous substances
in the environment and to reduce the amount and toxicity of hazardous substances. Id. The
research and training programs established under this section have the potential to provide
considerable benefits to communities of color and low-income communities. EPA could use its
consultative role to help promote an environmental justice research agenda with HHS.
3. Agency for Toxic Substances and Disease Registry Programs
The statute establishes the Agency for Toxic Substances and Disease Registry and sets out its
responsibilities and duties. Its authority is broad in scope but also includes several specific
functions. In general, ATSDR is charged with implementing the health-related authorities of the
Superfund statute, in cooperation with EPA and numerous other agencies. By way of example only,
ATSDR is charged with: (1) establishing a national registry of serious diseases and a registry of
persons exposed to toxic substances; (2) maintaining an inventory of research and studies on health
effects of toxic substances; (3) providing medical care and testing in cases of pubic health
emergencies; (4) performing health assessments for each facility on the NPL; and (5) assembling,
developing, and distributing to the states educational materials on medical surveillance screening and
methods of diagnoses and treatment of injury or disease related to exposure to hazardous
substances.
Because the focus of this analysis is on EPA's authority, the provisions that pertain primarily
to ATSDR and that do not involve EPA or implicate its authority are not discussed. Rather, the
chapter focuses on aspects of the ATSDR provisions that relate directly to EPA. Accordingly, the
provisions outlined below contain specific duties that EPA shares with ATSDR or that ATSDR
must perform in consultation with EPA.
171
-------
Section 104(i)(2) provides that EPA and ATSDR are requked to prepare a list, in order of
priority, of the most commonly found hazardous substances at NPL facilities that are posing the
most significant potential threat to human health. 42 U.S.C. § 9604(i)(2). The agencies are requked
to revise the list at least once a year. Id. Section 104(i) (3) requires ATSDR to prepare toxicological
profiles of each hazardous substance on this list, in accordance with guidelines developed by
ATSDR and EPA. 42 U.S.C. § 9604(i)(3). The statute includes detailed provisions on the
substance, procedures, and time frames for the profiles. Profiles must be provided to the states and
made available to "other interested parties." Id. Section 104(i)(5) requires ATSDR to consult with
EPA for purposes of determining whether adequate information on the health effects of each
substance on the list is available, and to initiate a research program if adequate information is not
available about a substance. 42 U.S.C. § 9604(i)(5).
Section 104(i)(4) requkes ATSDR to provide consultations upon request to EPA and to
state and local officials on health issues relating to exposure to hazardous substances. 42 U.S.C. §
9604(i)(4).
Section 104(i)(5)(D) dkects EPA to issue regulations which provide, where appropriate, for
the payment of the costs of the research programs established under Section 104(i) by
manufacturers and processors under the Toxic Substances Control Act, registrants under the Federal
Insecticide, Fungicide, and Rodenticide Act, and from recovery from responsible parties under the
Superfund program. 42 U.S.C. § 9604©(5)(D).
Section 104(i)(6)(C) provides that ATSDR consult with EPA in establishing priorities for
purposes of performing health assessments. 42 U.S.C. § 9604(i)(6)(C). Priority must be given to
facilities at which there is documented evidence of the release of a hazardous substance, at which
the potential risk to human health appears highest, and for which health assessment data are
inadequate to assess the potential risks. ATSDR is also dkected to consider the NPL schedules and
the needs of EPA pursuant to schedules for remedial investigations and feasibility studies. Id.
Section 104(i)(6)(E) requkes states carrying out health assessments to report the results of the
assessment to ATSDR and EPA and to include recommendations with respect to further activities.
42 U.S.C. § 9604(i)(6)(E).
Section 104(i)(6)(F) states that the term "health assessment" includes preliminary
assessments of the potential risk to human health posed by individual sites and facilities, based on
such factors as the nature and extent of contamination, the existence of potential pathways of
human exposure (including ground or surface water contamination, ak emissions, and food chain
contamination), the size and potential susceptibility of the community within the likely pathways of
exposure, the comparison of expected human exposure levels to the short-term and long-term
health effects associated with identified hazardous substances and any available recommended
exposure or tolerance limits for such hazardous substances, and the comparison of existing
morbidity data on diseases that may be associated with the observed levels of exposure. 42 U.S.C. §
9604(i)(6)(F). ATSDR is requked to use appropriate data, risk assessments, risk evaluations, and
studies available from EPA. Id.
Section 104(i)(6)(G) explains that the purpose of the health assessments requked by the
statute is to assist in determining whether actions should be taken to reduce human exposure to
hazardous substances from a facility and whether additional information is needed and should be
172
-------
acquired by conducting epidemic-logical studies, establishing a registry, or establishing a health
surveillance program - all provided for under Section 104(i). 42 U.S.C. § 9604(ij(6)(G). In using the
results of health assessments for determining what action to take, ATSDR may consider additional
information on the risks to the potentially affected population from all sources of such hazardous
substances including known point or nonpoint sources other than those from the facility in
question. Id.
Section 104(i)(6)(H) requires ATSDR to provide EPA and the appropriate state with the
results of each health assessment and any recommendations for further actions. 42 U.S.C. §
9604(i)(6)(H). If a health assessment indicates that the release or threatened release may pose a
serious threat, ATSDR must notify EPA. EPA must then promptly evaluate the release or
threatened release to determine whether the site must be placed on the NPL or if the site should be
given higher priority if it is already on the NPL. Id.
Many of the duties of ATSDR and EPA under this section could forward an environmental
justice research agenda, as well as protect specific communities of color and low-income
communities. Some provisions address environmental justice concerns directly. For example, the
definition of "health assessments" in Section 104(i)(6)(F) includes preliminary assessments of
potential risk to human health posed by individual sites based on factors that include the size and
potential susceptibility of the community within the likely pathways of exposure. Other provisions
allow environmental justice concerns to be taken into account even though they are not directly
addressed. The guidelines that EPA helps develop for toxicological profiles and the hazardous
substance priority list developed under Section 104(i)(2) could incorporate environmental justice
considerations by, for example, focusing on particular kinds of risks to low-income communities and
communities of color or by looking for particular susceptibility in such communities.
In its various consultative roles, EPA could advance environmental justice goals by, for.
example, ensuring that ATSDR places appropriate priority on performing health assessments at sites
in communities of color and low-income communities. EPA can also act directly, pursuant to
Section 104(i)(6)(H), when health assessments indicate that serious threats to communities of color
and low-income communities are present. As discussed in Part I, the statute also directs EPA to act
when a health assessment finds that the exposure concerned presents significant risks to public
health, including providing alternative water supplies and permanent or temporary relocation of
individuals. See 42 U.S.C. § 9604(i)(ll). In addition, the statute gives EPA the authority to collect
funding for the research programs established in this section, and EPA can ensure that costs are in
fact recovered from the regulated community.
VII. FINANCIAL ASSISTANCE
CERCLA contains a number of financial assistance mechanisms that can help support
environmental justice goals. First, EPA makes grants to state cleanup programs. Second, EPA
provides assistance to local governments for carrying out temporary emergency measures to protect
communities from releases or threatened releases of hazardous substances. Third, EPA provides
technical assistance grants directly to community members to help them participate in the cleanup of
sites in their communities. Fourth, EPA funds institutions of higher education to carry out research.
173
-------
A. Grants to State Programs
CERCLA Section 104(d) allows states and Tribes to apply to EPA to carry out actions
authorized by Section 104 of CERCLA, including removal and remedial actions, investigations,
monitoring, and information gathering. As discussed earlier, if the state or Tribe meets certain ;
requirements, EPA may enter into a contract or cooperative agreement with the state or Tribe to
carry out response actions. The statute states that contracts and cooperative agreements are subject
to the terms and conditions that EPA prescribes. Under this provision, EPA has provided financial
assistance to the states to carry out CERCLA responsibilities and to help develop their own state
Superfund programs. EPA could use this general authority to ensure that state programs using
federal funds further environmental justice goals. 42 U.S.C. § 9604(d); 40 C.F.R. § 300.51-5; see also
40 C.F.R. § 31.43 (remedies for noncompliance with terms of an award, include temporarily
withholding cash payments pending correction of deficiency by grantee or wholly or partially
suspending or terminating award).
B. Reimbursement to Local Governments For Temporary Emergency Measures
CERCLA Section 123 authorizes EPA to reimburse local community authorities for
expenses incurred in carrying out temporary emergency measures necessary to prevent or mitigate
injury to human health or the environment associated with the release or threatened release of a
hazardous substance. 42 U.S.C. § 9623. Measures may include security fencing to limit access,
response to fires and explosions, and other measures which require immediate response at the local
level. The amount of reimbursement is limited to $25,000 per single response. Id.; see also 40 C.F.R.
Part 310. This provision provides a potentially powerful tool for addressing threats posed by
hazardous substances in low-income communities. EPA could promote the use of this provision by
local governments in these communities by, for example, publicizing its availability.
C. Technical Assistance Grants (TAGs)
CERCLA Section 117(e) provides authority to EPA to make grants available to any group
of individuals that may be affected by a release or threatened release at any facility listed on the
NPL. 42 U.S.C. § 9617(e). The grants may be used to obtain technical assistance in interpreting
information with regard to the nature of a hazard, the remedial investigation and feasibility study,
the record of decision, the remedial design, the selection and construction of a remedial action, the
operation and maintenance, or the removal action at any NPL facility. Grants are limited to $50,000
for a single grant recipient, but the limitation can be waived under certain circumstances. Grant
recipients are required to contribute at least 20 percent of the total costs of the technical assistance
for which the grant is made, but the requirement may be waived in certain circumstances. Only a
single grant may be made per facility but the grants can be renewed to facilitate public participation
at all stages of a remedial action. Id.
TAGs are a key aspect of the CERCLA public participation program and provide a
potentially powerful tool to communities of color and low-income communities. Over the years,
the program has received considerable attention and has been criticized on several grounds. For
example, the cap on the amount of funds available, the matching requirements, and the paperwork
associated with applying for and using grant monies have all been cited as problems with the
program. EPA recently amended the TAG program to address some of these concerns. 65 Fed.
174
-------
Reg. 58849 (October 2, 2000); 40 C.F.R. Part 35, Subpart M. Although the statute includes specific
limits on the use of TAGs, it may be possible to increase the use of and availability of TAGs in
communities of color and low-income communities through EPA's implementation of the program.
D.
Research Grants
CERCLA Section 311(d) requires EPA to make grants to institutions of higher learning to
establish and operate at least five hazardous substance research centers in the U.S. In carrying out
the program, EPA should seek to have established and operated ten such centers. The centers'
responsibilities must include, but are not limited to, the conduct of research and training related to
the manufacture, use, transportation, disposal, and management of hazardous substances. Grant
recipients must be located in an area which has experienced problems with hazardous substance
management. The centers are also required to disseminate their research results. 42 U.S.C. §
9660(d).
This general provision could benefit communities of color and low-income communities by
facilitating and supporting research on hazardous substances. EPA could use its grantmaking
authority to ensure that the centers established under this provision develop research agendas that
are consistent with and forward environmental justice goals, and that their research is being
disseminated effectively.
175
-------
176
-------
CHAPTER 14
FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT
("FIFRA")
7 U.S.C. §§ 136-136y
and
FEDERAL FOOD, DRUG, AND COSMETIC ACT ("FFDCA")
21 U.S.C. §§ 301-397
AS AMENDED BY THE FOOD QUALITY PROTECTION ACT OF 1996
("FQPA")
Pesticides are intended to kill or adversely affect living organisms. As a result, pesticide use
inevitably poses risks to non-target organisms, including humans, fish, and other wildlife, as well as
to the broader environment. Pesticide use is an important issue in addressing environmental justice
for a variety of reasons. First, farmworker communities, comprised krgely of people of color and
low-income families, are usually subjected to more frequent pesticide exposures from more sources
than other communities. Second, some low-income communities and communities of color may, as
a result of inadequate nutrition or other medical factors, be more susceptible to the harmful effects
of pesticides. Third, many communities of color and low-income communities already bear a
disproportionate share of environmental burdens flowing from other kinds of pollution, waste
disposal, and facility siting.
The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Federal Food,
Drug, and Cosmetic Act (FFDCA) together provide the framework for pesticide regulation in the
United States. Under FIFRA, EPA regulates the manufacture, labeling, sale, and use of pesticides.
Under the FFDCA, the agency regulates tolerances for pesticide residue in food. Both FIFRA and
the FFDCA were significantly amended in 1996 following enactment of the Food Quality
Protection Act (FQPA). The FQPA enacted into law a-number of measures that may prove to be
significant tools for promoting environmental justice. This chapter examines the authorities under
FIFRA and the FFDCA, as amended, to incorporate environmental justice concerns into pesticide
decision-making. The review is intended to provide the basis for further public inquiry and
discussion about the opportunities discussed here for pursuing environmental justice in a broad
range of EPA's regulatory activities under the Act.
Part I of the chapter discusses health protection and public participation provisions that
apply broadly in implementing the statutes. Part II highlights EPA's role in addressing
environmental justice issues through the Worker Protection Standard regulatory process. The focus
of Part III is EPA's authority to advance environmental justice goals when it considers registering
pesticides, setting tolerances, reregistering pesticides, and granting experimental use permits. Part IV
describes EPA's oversight of state regulatory and enforcement authority under FIFRA, while Part V
outlines EPA's authority to take enforcement action. Part VI describes a variety of opportunities in
the statutes for collecting information relevant to environmental justice concerns. Finally, Part VII
177
-------
notes EPA authority to promote environmental justice when it provides financial assistance to states
and Tribes.
I. GENERAL PROVISIONS
A. Duty to Prevent Unreasonable Adverse Effects on the Environment
EPA's authority under FIFRA is guided by the Congressional mandate to prevent
"unreasonable adverse effects on the environment." This standard appears throughout the FIFRA
statutory scheme in a variety of contexts. Pursuant to Section 2, "unreasonable adverse effects on
the environment" typically means "any unreasonable risk to man or the environment, taking into
account the economic, social, and environmental costs and benefits of the use of any pesticide...." 1 U.S.C. §
136(bb) (emphasis added). It also means "a human dietary risk from residues that result from, a use
of a pesticide in or on any food inconsistent with" the "reasonable certainty of no harm" safety
standard. Id.
Thus, in considering whether an action under FIFRA might result in an unreasonable
adverse effect, EPA needs only to determine whether the action could result in an unreasonable risk.
Id. Additionally, the term "environment" is expansively defined to include "water, air, land, and all
plants and man and other animals living therein, and the interrelationships which exist among
these." 7 U.S.C. § 1360). So in ascertaining whether risks exist, the agency must consider risks to
either people or the environment, or to the interrelationships between people and their natural
world. The environmental factor, of course, allows EPA to consider the risks of pesticides to
people and to wildlife. Consideration of "social" factors provides a further basis for addressing
whether particular communities or populations face heightened risks from pesticides.
B. Public Participation
Both FIFRA and the FFDCA contain broad public participation provisions. FIFRA
Section 21(c) provides that in connection with suspension or cancellation of a pesticide registration,
"or any other actions" authorized by FIFRA, the Administrator has the discretion to solicit the views of
all interested persons either orally or in writing. In particular, the statute expressly provides that
EPA may seek such advice from "scientists, farmers, farm organizations, and other qualified persons."
1 U.S.C. § 136s(c) (emphasis added). The agency could rely upon this provision to ensure that
environmental justice expertise is incorporated into decision-making under FIFRA in any context.
II. STANDARD SETTING/RULE-MAKING
The Administrator is authorized generally to prescribe regulations to carry out the provisions
of FIFRA. 7 U.S.C. § 136w(a)(l). FIFRA also provides for a notice and comment procedure. 7
U.S.C. § 136w(a)(2). Additionally, several aspects of standard setting and rule-making under FIFRA
are of relevance for environmental justice purposes. EPA's comprehensive Worker Protection
Standard is particularly important, and is the subject of current calls for reform.
178
-------
In 1992, EPA issued regulations known as the Worker Protection Standard (WPS). 40
C.F.R. Part 170; see also 40 C.F.R. Part 156 (containing worker protection statements that must
appear on labels for agricultural pesticides). The WPS, which became effective in 1995, was
developed "to reduce the risk of illness or injury resulting from workers' and handlers' occupational
exposures to pesticides .. .and also from the accidental exposure of workers and other persons to
such pesticides." 40 C.F.R. § 170.1. The WPS is based on Section 12(a) of FIFRA, which makes it
unlawful to use a registered pesticide in a manner inconsistent with its labeling. 7 U.S.C. §
136j(a)(2)(G); 40 C.F.R. § 170.9. Enforcement authority is also based in part on Section 14(b),
which states that a person is liable for a penalty under FIFRA if another person employed by or
acting for that person violates a provision of FIFRA. 7 U.S.C. § 136/(b)(4); 40 C.F.R. § 170.9.
The WPS provides an array of protections to agricultural workers and to pesticide handlers.
These protections include mandatory pesticide safety training, notice of pesticide applications, and
restricted entry intervals (REIs) that must be observed following such applications; posting of
information about pesticide hazards; availability of decontamination supplies and emergency medical
assistance; and availability of personal protective equipment. See generally 40 C.F.R Part 170.
Employers may not retaliate against workers attempting to comply with the WPS, nor may
employers prevent or discourage compliance with the WPS. 40 C.F.R. § 170.7(b).
Since the mid-1990s, EPA has been evaluating the implementation and enforcement of the
WPS. In 1996, the agency convened a National Dialogue on the WPS to assess its effectiveness. See
U.S. EPA Office of Pesticide Programs, National Dialogue on the Worker Protection Standard,
available at http://www.epa.gov/oppfeadl/safety/workers/dialogue.htm (last modified July 30,
1999). Beginning in June 2000, the agency launched a National Assessment of the Worker
Protection Program, which represents a comprehensive review of the WPS and its implementation
and enforcement. See U.S. EPA Office of Pesticide Programs, New and Noteworthy, at
http://www.epa.gov/oppfeadl/safety/newnote.htm (last modified July 20, 2001). Stakeholder
comments from the National Dialogue and the ongoing National Assessment suggest that EPA
could improve implementation and enforcement of the WPS in many ways. Particularly prominent
are issues of employer compliance with the WPS, and the related issue of enforcement by EPA and
the states^ including: (1) inadequate safety training by employers; (2) failure to provide workers with
necessary information about pesticides and pesticide applications; (3) an absence of decontamination
facilities; and (4) the inaccessibility of medical care in emergencies.
Attempts to improve enforcement of the existing WPS, as well as attempts to amend the
rule, are relevant to environmental justice. A disproportionately high percentage of agricultural
workers belong to low-income communities of color, particularly Latino communities. They may
lack the financial resources, language skills, or political clout to ensure that the standards work
properly to protect them. Accordingly, the changes suggested and currently being considered by
EPA include: (1) all aspects of pesticide safety training; (2) improved communication with and
notice to workers which take into account language and cultural differences; (3) improved training
of medical professionals to recognize, diagnose, and manage injuries resulting from pesticide
exposure, and a national .system of reporting pesticide-related injuries; (4) improved inspections,
including interviews with workers as well as employers; and (5) whistleblower provisions that would
enable workers to report violations without fear of retaliation.
179
-------
Another area for WPS reform that has attracted special attention is children's health issues.
It is well-established that children are at increased risk from pesticides because of greater exposure
on a body-weight basis. See NATURAL RESOURCES DEFENSE COUNCIL, TROUBLE ON THE FARM:
GROWING UP WITH PESTICIDES IN AGRICULTURAL COMMUNITIES Chapter 2 (Oct. 1998). Children
are also more susceptible than adults to the effects of pesticides, because they are more likely to
suffer long-term neurotoxic effects and are less able to eliminate toxins from their bodies. Id. The
children of agricultural workers are at even higher risk from pesticides than children in the general
population. The FQPA amendments to the FFDCA establish as a new priority the protection of
children and infants from pesticides. (See the discussion in Part III.B., below.)
Consistent with this approach, EPA could amend the WPS to provide strong new
protections for the children of agricultural workers. For example, although restricted entry intervals
are used to restrict entry into fields for a prescribed period of time after the application of pesticides,
REIs are not developed with reference to the small children who are often in the fields. As a result,
children accompanying their parents into recently sprayed areas may be at particularly high risk of
adverse effects. Id., ch. 3. The agency also could impose label restrictions to bar children entirely
from working in fields where the most dangerous pesticides are in use.
III. PERMITTING AND OTHER APPROVALS
As discussed in Part LA. above, EPA's obligation to avoid "unreasonable adverse effects on
the environment" informs all of the agency's decision-making under FIFRA. Nowhere is this
obligation, or its implications for promoting environmental justice, more evident than in the
provisions governing pesticide registration. 7 U.S.C. § 136a. The registration process, which forms
the core of the FIFRA regulatory regime, affords EPA an opportunity to collect and review data on
a pesticide, as well as a means of refusing or conditioning registration to protect public health and
the environment. Various aspects of the registration process bear on environmental justice.
EPA's responsibility under the FFDCA for establishing tolerances for pesticide residues, or
exemptions from such tolerances, is also a key component in pesticide regulation. 21 U.S.C. § 346a.
Tolerance assessment — and reassessment — is typically carried out in connection with the pesticide
registration and reregistration processes, and so is discussed here. The regulation of tolerances is a
powerful tool for implementing environmental justice considerations, particularly in light of the
1996 FQPA amendments to the FFDCA.
The periodic review of existing pesticide registrations - known as reregistration — ensures
that environmental justice concerns arising subsequent to initial pesticide registration will ultimately
be addressed as a matter of course. 7 U.S.C. § 136a-l. Finally, FIFRA and FFDCA provide for the
issuance of experimental use permits, which have minor environmental justice implications. 7
U.S.C. § 136c.
180
-------
Pesticide Registration
1.
Generally
Section 3(c) of FIFRA directs EPA to register a pesticide if, among other things, the
pesticide "will perform its intended function without unreasonable adverse effects on the
environment," and if the pesticide, "when used in accordance with widespread and commonly
recognized practice," will "not generally cause unreasonable adverse effects on the environment" 7
U.S.C. § 3(c)(5)(C)-(D).
The requirement that EPA avoid unreasonable adverse effects on the environment applies
not only to unconditional registrations under Section 3(c)(5), but also to conditional registrations. A
conditional registration decision typically is made when EPA kcks sufficient information to render
an unconditional registration decision. 7 U.S.C. .§ 136a(c)(7). For example, conditional registration
can be used to expedite registration for pesticides that are identical or substantially similar to
previously registered pesticides - so called "me-too" pesticides. 7 U.S.C. § 136a(c)(7)(A); 7 U.S.C. §
136a(c)(3)(B)(i)(I). Conditional registration can also be used when additional time is needed to
generate the required data for an unconditional decision on a new active ingredient. For this type of
conditional registration, the agency must further determine that use of the pesticide is in the public
interest. 7 U.S.C. § 136a(c)(7)(C). Finally, conditional registration can be used to permit additional
uses of a pesticide. 7 U.S.C. § 136a(c)(7)(B).
In the case of a pesticide with an existing registration, EPA has authority to amend (or
conditionally amend) the registration. An amended registration generally is sought when a registrant
wants to make significant changes to the formulation or use of a pesticide. See, e.g., 7 U.S.C. §
136a(c)(7)(B) (amending registration to add new pesticide uses). In this instance, a finding by the
agency that the amendment "would not significantly increase the risk of any unreasonable adverse
effect on the environment" is required. Id.
Thus, EPA must incorporate a determination of unreasonable adverse effects on the
environment into any ultimate decision to approve or deny a pesticide registration — unconditional
or conditional, new or amended. As discussed in Part LA., above, this standard allows the agency to
assess the risks posed to communities of color and low-income communities by a pesticide's use.
Where a pesticide presents an unacceptable risk to particular communities, EPA has authority to
refuse registration of the pesticide.
Pesticide labeling is central to the FIFRA regulatory process. Once a pesticide is registered,
the directions appearing on a pesticide label represent the means by which EPA regulates its use.
Under Section 12(a) of FIFRA, it is unlawful to sell or distribute a "misbranded" pesticide. 7
U.S.C. § 136j(a)(l)(E). A pesticide is misbranded if its labeling does not contain certain required
categories of information, including directions for use. 7 U.S.C. § 136(q)(l)(F); see 40 C.F.R. §
156..10. Additionally, it is unlawful to use any pesticide in a manner inconsistent with its labeling. 7
U.S.C. § 136j(a)(2)(G). Labeling is also important as a means of conveying pesticide hazard
information. All label text must appear in English; however, EPA may propose additional text in
.other languages "as is considered necessary to protect the public." 40 C.F.R. § 156.10(a)(3). EPA
181
-------
thus has authority to require translation of label information into languages used in communiti.es
that may be particularly at risk from pesticide exposure.
2. Use Classification
A key element of the registration process is classification of the pesticide. Pursuant to
Section 3(d) of FIFRA, if EPA determines that a pesticide, when properly applied and absent:
additional regulatory conditions, may generally cause unreasonable adverse effects on the
environment — including injury to the applicator — the agency must classify the pesticide, or a
particular use, as "restricted use." This assumes, of course, that the pesticide would otherwise be
subject to registration. 7 U.S.C. § 136a(d)(l)(C). If, however, EPA determines that a pesticide,
when properly applied, will not generally cause unreasonable adverse effects on the environment,
the agency will classify the pesticide, or a particular use, as general use. 7 U.S.C. § 136a(d)(l)(B). As
a practical matter, EPA normally does not classify for general use; products that are unrestricted
remain "unclassified." 40 C.F.R. §152.160. The "no unreasonable adverse effects on the
environment" standard also applies to any decision by the Administrator to change a pesticide's
classification subsequent to its initial classification. See 1 U.S.C. § 136a(d)(2)-(3).
Pesticide classification is of great importance to registrants, because a restricted-use
designation results in the imposition of additional safeguards on use. FIFRA requires that the
application of restricted-use pesticides be carried out only by or under the direct supervision of a
certified applicator, or subject to other restrictions. 7 U.S.C. § 136a(d)(l)(C)(i)-(ii). EPA can further
environmental justice goals by ensuring that pesticides that raise environmental justice concerns -
but not at a level sufficient to deny registration altogether — are classified as restricted-use and that
appropriate protections are required in connection with their use.
In addition, the power to fashion locale-specific restrictions on pesticide use represents
another possible mechanism for protecting communities that bear disproportionate pesticide risk.
Such restrictions are frequently based on concerns about a particular climate, geographical area, or
the presence of endangered species. Memorandum from Howard F. Corcoran, U.S. EPA Office of
General Counsel, Environmental Justice Law Survey (Feb. 25,1994) [hereinafter "OGC 1994
Memorandum"]. The agency could build on its existing practices to shape locale-specific restrictions
to avoid pesticide impacts in communities that face disproportionate risks. Similarly, the agency
could use such restrictions to protect food chains - especially fish - upon which some communities
rely.
3. Data Collection
Pursuant to Section 3(c) of FIFRA, EPA must publish and maintain guidelines specifying
the kinds of information that will be required to support the registration of a pesticide. 7 U.S.C. §
136a(c)(2)(A). Detailed descriptions of the types of data that must be submitted have been
established by regulation. 40 C.F.R. Part 158. FIFRA's data requirements "are intended to generate
data and information necessary to address concerns pertaining to the identity, composition, potential
adverse effects and environmental fate of each pesticide." See 40 C.F.R. § 158.202(a). EPA relies
on this data to make regulatory judgments about the risks and benefits of a pesticide. 40 C.F.R. §
158.20(b)(l).
182
-------
In the case of pesticides with an existing registration, EPA may at any time determine that
additional data are required to support continued registration and initiate what is known as a "data
call-in." When this occurs, the agency notifies affected registrants of the new data requirement, and
the registrants must demonstrate within 90 days of notice that they are taking appropriate steps to
comply. 7 U.S.C. § 136a(c)(2)(B)(i)-(ii). Failure to comply can result in suspension of a pesticide's
registration. 7 U.S.C. § 136a(c)(2)(B)(iv).
EPA's broad data collection authority enables the agency to require submission of data that
will assist in the determination of whether a pesticide's use is likely to cause, or in the case of an
existing pesticide, is already causing unreasonable risks in communities of color or low-income
communities. The authority to conduct data call-ins further ensures that if new environmental
justice concerns arise subsequent to registration of a pesticide, EPA has a means of collecting
information necessary to assess the new threat.
4. Preferential Registration of Certain Pesticides
The FQPA amendments to FIFRA added definitions and new procedures regarding three
categories of pesticides: minor-use pesticides, antimicrobial pesticides, and public health pesticides.
A "minor use" of a pesticide, generally speaking, is a use for which sales of the pesticide do not
justify the expenditure required by the registrant to maintain a registration under FIFRA. 7 U.S.C. §
136(11). Antimicrobial pesticides are those that disinfect or sanitize, or otherwise affect the growth
or development of microorganisms such as bacteria and viruses. The category also includes
pesticides used to protect inanimate objects, industrial processes, or other substances from
microorganisms. 7 U.S.C. § 136(mm). Public health pesticides refer to minor-use pesticides used
predominantly in public health programs for vector control or other recognized health protection
uses. 7 U.S.C. § 136(nn).
As a result of their perceived benefits, these categories of pesticides receive preferential
treatment in the registration process. Similarly, pesticides that present reduced risks to human health
and non-target organisms are subject to expedited registration procedures. 7 U.S.C. § 136a(c)(10); see
U.S. EPA Office of Pesticide Programs, Guidelines for Expedited Review of Conventional
Pesticides under the Reduced-Risk Initiative and for Biological Pesticides PR Notice 97-3 (Sept. 4,
1997). Nevertheless, FIFRA's requirement to avoid unreasonable adverse effects on the
environment still comes into play. For example, pursuant to Section 3(c), EPA may waive data
requirements in the registration of a minor-use pesticide, but only if this will not prevent a
determination of the incremental risk presented by the minor use and if the risk would not amount
to an unreasonable adverse effect on the environment. 7 U1S.C. § 136a(c)(2)(E). In providing
preferential treatment to certain pesticides in the registration process, as FIFRA now requires, the
agency can nevertheless ensure that an assessment of environmental justice impacts accompanies
any decision-making in connection with these pesticides.
5. Public Participation in the Registration Context
Section 3 (c) of FIFRA sets out the notice-and-comment procedures for the registration
process. 7 U.S.C. § 136a(c)(4). In addition, within 30 days after registration of a pesticide, EPA
must make available to the public the data called for in the registration statement, along with any
183
-------
other scientific information the agency deems relevant to the decision. 7 U.S.C. § 136a(c)(2)(A). In
fulfilling this requirement, the agency could highlight data of importance to communities of color
and low-income communities. •
6. Cancellation or Suspension of Pesticide Registration
Proceedings under Section 6 of FIFRA provide a way for EPA to reclassify a pesticide or
terminate its use altogether in the event that, subsequent to its registration, it poses unreasonable
risks, which could include risks to communities of color and to low-income communities. If
unacceptable effects on either people or wildlife in these communities can be traced to a pesticide
that is being appropriately used, the agency has a clear means of resolving the problem by
eliminating the use of the pesticide or removing the pesticide from the market altogether.
Pursuant to Section 6(b) of FIFRA, if EPA determines that a pesticide, "when used in
accordance with widespread and commonly recognized practice, generally causes unreasonable
adverse effects on the environment," the agency may issue notice of an intent either to cancel its
registration or change its classification, or to hold a hearing to determine whether these actions
should be taken. Such notice is given to the registrant and made public, and FIFRA mandates
consultation between EPA and the Department of Agriculture. 7 U.S.C. § 136d(b)(l)-(2).
Additionally, the Scientific Advisory Panel (discussed below) must be consulted. 7 U.S.C. §
136\v(d)(l). When a public health use is affected, the Secretary of Health and Human Services must
also be consulted. 7 U.S.C. § 136d(b)(2).
Under Section 6(c) of FIFRA, if EPA determines that action is necessary to prevent an
"imminent hazard" during the time that is required for cancellation or change in classification
proceedings, the agency may issue an order suspending registration of the pesticide immediately. 7
U.S.C. § 136d(c)(l). An imminent hazard exists when the continued use of a pesticide during the
time required for a cancellation proceeding "would be likely to result in unreasonable adverse effects
on the environment " 7 U.S.C. § 136(1).
Pursuant to Section 6(d) of FIFRA, if a hearing on cancellation or change of classification is
either required by EPA or requested by an adversely affected individual, the hearing shall be held
after due notice, "for the purpose of receiving evidence relevant and material to the objections filed
by the applicant or other interested parties, or to the issues stated by the Administrator . . .." 7
U.S.C. § 136d(d); see also 7 U.S.C. § 136d(e) (providing for hearing on notice of intent to cancel a
conditional registration). The agency's statutory obligation to receive relevant and material evidence
is broad enough to permit full consideration of environmental justice concerns about the pesticide at
issue.
EPA has broad authority to determine the disposition of existing stocks of pesticides whose
registration has been suspended or canceled under FIFRA. Pursuant to Section 6(a), the agency
may permit the continued sale and use of such stocks "to such extent, under such conditions, and
for such uses as the Administrator determines that such sale or use is not inconsistent with the
purposes of [FIFRA]." 7 U.S.C. § 136d(a)(l); see also 1 U.S.C. § 136d(e)(l). Accordingly, when EPA
has canceled or suspended a registration — particularly when such action was based on
184
-------
environmental justice issues - this section provides authority for the agency to factor environmental
justice cosiderations into the decision on how to dispose of existing stocks.
Similarly, Section 19(b) of FIFRA provides that when registration of a pesticide has been
canceled or suspended, EPA must order a recall of the pesticide when doing so is "necessary to
protect health or the environment." 7 U.S.C. § 136q(b)(l). However, when the agency determines
that a voluntary recall will be as safe and effective as a mandatory recall, it must request the pesticide
registrant to submit a plan for such recall within 60 days of the request. EPA must approve the plan
unless it determines, after informal hearing, that the plan is inadequate to protect health or the
environment. 7 U.S.C. § 136q(b)(2). To "protect health and the environment" means to protect
against any unreasonable adverse effects on the environment. 7 U.S.C. § 136(x). In the event of a
mandatory recall of a pesticide — and when EPA does not request a voluntary plan or the one
submitted is inadequate - the agency must issue a regulation describing a plan for the recall 7
U.S.C. § 136q(b)(3).
These provisions provide a two-fold means of promoting environmental justice. Fkst, EPA
may take environmental justice concerns into account in determining whether a recall is warranted.
Second, when a recall is ordered, the agency could incorporate into die decision of whether a recall
plan is adequate a consideration of how communities of color and low-income communities will be
affected and how likely the plan is to communicate the recall to these communities in an effective
manner.
B. Setting Tolerances and Granting Exemptions
1. Generally
The shipment in interstate commerce of adulterated or misbranded food is prohibited by the
FFDCA. See 21 U.S.C. § 331(a)^(c). In the pesticide context, food is deemed adulterated "if it bears
or contains a pesticide chemical residue that is unsafe. . . ." 21 U.S.C. § 342(a)(2)(B). A pesticide
chemical residue is deemed "unsafe" for purposes of the FFDCA unless either a tolerance is in
effect and the residue quantity is within the limits of such tolerance, or an exemption from the
requirement for a tolerance is in effect. 21 U.S.C. § 346a(a)(l).
Section 408(b) of the FFDCA authorizes EPA, either in response to a petition or on the
agency's own initiative, to issue regulations establishing, modifying, or revoking a tolerance for a
pesticide chemical residue on or in food. 21 U.S.C. § 346a(b)(l); 40 C.F.R. Part 180. A tolerance
may be established or continued only if EPA determines that the tolerance is safe. 21 U.S.C. §
346a(b)(2)(A)(i). "Safe" means that EPA "has determined that there is a reasonable certainty that no
harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated
dietary exposures and all other exposures for which there is reliable information." 21 U.S.C. §
346a(b)(2)(A)(ii). If the agency sets a tolerance that varies from an existing international tolerance
for that pesticide, it must give reasons for doing so. 21 U.S.C. § 346a(b)(4). EPA may also issue a
regulation establishing, modifying, or revoking an exemption from the requirement for a tolerance.
21 U.S.C. § 346a(c)(l). The agency's decision to establish an exemption from the requirement of
obtaining a residue tolerance is guided by essentially the same safety standard - and the same factors
- that govern establishment of tolerances. 21 U.S.C. § 346a(c).
185
-------
An important exception to when a residue is deemed unsafe arises in connection with the
FFDCA's "pass-through" provision for processed foods. If a tolerance is in effect for a residue in
or on a raw agricultural commodity, a residue present in or on processed food made from the raw
agricultural commodity will not be considered unsafe if (1) the pesticide was used in or on the raw
agricultural commodity in conformity with a tolerance; (2) the residue was removed to the extent
possible by good manufacturing practice; and (3) the concentration of the residue in the processed
food is not greater than the tolerance prescribed for the residue in the raw agricultural commodity.
21 U.S.C. § 346a(a)(2). Additionally, the tolerance fixed for a parent compound generally applies to
metabolites and degradation products, except when EPA determines that the degradation product
poses a new dietary risk or that the combined residues from the parent product and the degradation
product exceed accepted tolerance levels. 21 U.S.C. § 346a(a)(3); see ELIZABETH C. BROWN, HTAL.,
PESTICIDE REGULATION DESKBOOK 44 (EnvkonmentaLLaw Institute, 2000) [hereinafter
"Deskbook"].
The issue of establishing tolerances and exemptions is crucial for pesticide registrants,
because EPA will not register a pesticide under FIFRA that will be used on food, animal feed, or
food or feed crops until the registrant has obtained either a tolerance or an exemption under the
FFDCA. 40 C.F.R. § 152.112®. Additionally, as a result of the 1996 FQPA amendments, EPA
must determine, pursuant to a statutory timetable, whether existing pesticide residue tolerances or
exemptions satisfy the new FQPA safety standard; if they do not, the agency must issue a regulation
modifying or revoking the tolerance or exemption. 21 U.S.C. § 346a(q)(l). Tolerance reassessment
must be concluded by August 3, 2006. EPA is carrying out the tolerance reassessment process in
connection with its pesticide reregistratipn program, discussed below.
In making determinations on tolerances and exemptions, EPA must consider aggregate
exposure to pesticide residue from both dietary sources and other non-occupational sources. The
aggregate exposure analysis under FFDCA works by analogy to a so-called "risk cup." Id. Each
pesticide has a risk cup, which corresponds to the reference dose (RfD) for a pesticide. A reference
dose represents the total allowable level of daily exposure to a given pesticide that a person could
receive every day for 70 years without significant risk of a long-term or chronic non-cancer health
effect. Thus, EPA must consider pesticide exposure that results not just from eating food, but also
from drinking water, using swimming pools, and performing lawn care. As long as the risk cup for a
specific pesticide is not full, the agency can register additional pesticide uses and set new tolerances.
Once the risk cup overflows, however, no new uses are permitted until either the risk level has been
lowered or new data are generated to alter the baseline assumptions used to establish the RfD. See
U.S. EPA Office of Pesticide Programs, Agency Actions Under the Requirements of the Food
Quality Protection Act PR Notice 97-1 (Jan. 31,1997); Deskbook at 47.
One of the core concerns of environmental justice is that multiple exposures to
environmental harms from different routes need to be acknowledged and addressed. The broad
new FQPA safety standard for pesticide residue tolerances, with its mandate to consider aggregate
risks from various sources of exposure to pesticides, creates a powerful tool with which EPA can
ensure that environmental justice concerns are incorporated into pesticide regulation. As will be
discussed below, the agency also possesses the authority to examine these exposures with reference
to particular communities, including communities of color and low-income communities.
186
-------
2. Factors Considered in Establishing Tolerances of Exemptions
In establishing tolerances or exemptions pursuant to Section 408 (b) of the FFDCA, EPA
must consider nine specific factors, "among other relevant factors." 21 U.S.C. § 346a(b)(2)(D). As
discussed below, some of these factors are of particular importance from an environmental justice
perspective.
One important factor that EPA must consider is "available information concerning the
dietary consumption patterns of consumers (and major identifiable subgroups of consumers)." 21
U.S.C. § 346a(b)(2)(D)(iv). Thus, the agency can examine the extent to which dietary consumption
patterns in communities of color and low-income communities differ from patterns in the general
population. For example, some low-income or Native American communities rely on subsistence
fishing and hunting, and the animals they consume can contain unsafe levels of pesticide residue as a
result of runoff and drift. Low-income communities may also have less adequate diets and lower
levels of health generally, which could combine to increase susceptibility to the harmful effects of
pesticides. Similarly, agricultural worker communities often consume fresh fruits and vegetables that
contain higher levels of pesticide residue than fruits and vegetables that take longer to reach the
table.
Another factor that EPA must consider is "available information concerning the aggregate
exposure levels of consumers (and major identifiable subgroups of consumers) to the pesticide
chemical residue and to other related substances, including dietary exposure under the tolerance and
all other tolerances in effect for the pesticide chemical residue, and exposure from other non-
occupational sources." 21 U.S.C. § 346a(b)(2)(D)(vi). Thus, EPA can consider whether
communities of color and low-income communities are exposed to more pesticides from more
sources than other communities.
Additionally, EPA is directed to consider "available information concerning the variability of
the sensitivities of major identifiable subgroups of consumers." 21 U.S.C. § 346a(b)(2)(D)(vii). This
factor gives the agency a means of determining whether members of low-income communities or
communities of color may be particularly sensitive to the effects of pesticides.
Taken together, these three statutory factors are significant because they refer expressly to
the need to consider "major identifiable subgroups of consumers." A fundamental concern about
pesticide risk assessment has been that it fails to capture the disproportionate risks borne by
population subgroups — particularly communities of color and low-income communities — that
suffer higher exposure levels and may have increased susceptibility to health risks. See Scott Bauer,
The 7oodQuality Protection A.ct of 1996: Replacing Oldlmpracticalities with New Uncertainties in Pesticide
Regulation, 75 N.C. L. Rev. 1398 note at 1405-06 (1997). The FQPA has focused attention on major
identifiable subgroups, thereby giving EPA a clear means of examining how pesticide residues
impact communities of color and low-income communities. In fact, in 1998 the NaturalJResources
Defense Council and others filed a petition with the agency to designate farm children as a "major
identifiable subgroup and population at special risk" to be protected under the FQPA pursuant to
these three factors. Petition for a Directive that the Agency Designate Farm Children as a Major
Identifiable Subgroup and Population at Special Risk to Be Protected Under the Food Quality
187
-------
Protection Act 4, In the Matter of Natural Resources Defense Council, et al., Petition to the Administrator
(Oct. 1998), available at http://ecologic-ipm.com/farmkids.PDF (last visited Nov. 14,2001).
Other factors to be weighed in connection with tolerance setting are also important to
environmental justice. EPA is required to consider "available information concerning the
cumulative effects of such residues and other substances that have a common mechanism of
toxicity." 21 U.S.C. § 346a(b)(2)(D)(v). This provision is a directive to consider how similar
chemicals — which may be present in pesticide residues as well as "other substances" — work
together to create harmful effects. Here again, because communities of color and low-income
communities are more likely than the general population to face multiple exposures from multiple
toxic substances, the issue of cumulative effects from common mechanisms of toxicity is highly
relevant.
Finally, it is important to note that the factors listed in the statute represent only a starting
point, as EPA may also consider "other relevant factors." 21 U.S.C. § 346a(b)(2)(D). This provides
an opportunity for the agency to obtain and review any other demographic and geographical data
that might assist in the identification and delineation of specific affected communities. Other
factors might also include morbidity in communities of color and low-income communities, as well
as susceptibility of such communities to harm from particular toxins. Taken together, all of these
factors provide a set of tools not only for obtaining and examining, but also for acting on this
information in establishing pesticide residue tolerances and exemptions.
3. Exposute of Infants and Children
Section 408 (b) of the FFDCA requires that in the process of establishing a tolerance or
exemption for a pesticide residue, EPA must assess the risk of the residue based on certain
categories of available information involving infants and children. The agency must consider:
• "available information about consumption patterns among infants and children that
are likely to result in disproportionately high consumption of foods containing or
bearing such residue among infants and children in comparison to the general
population;"
• "available information concerning the special susceptibility of infants and childcen to
the pesticide chemical residues, including neurological differences between infants
and children and adults, and effects of in utero exposure to pesticide chemicals;" and
• "available information concerning the cumulative effects on infants and children of
such residues and other, substances that have a common mechanism of toxicity."
21 U.S.C. § 346a(b)(2)(C)(i). The agency must also ensure a "reasonable certainty that no harm will
result to infants and children from aggregate exposure" to the residue, and publish a specific finding
regarding the residue's safety for infants and children. 21 U.S.C. § 346a(b)(2)(C)(ii).
With regard to threshold effects, an additional ten-fold margin of safety for the residue and
other sources of exposure must be applied for infants and children. This additional safety factor
188
-------
accounts for "potential pre- and post-natal toxicity and completeness of the data with respect to
exposure and toxicity to infants and children." 21 U.S.C. § 346a(b)(2)(C). However, the agency may
use a different margin of safety if, on the basis of reliable data, such margin will be safe for infants
and children. Id.
The FFDCA's new focus on infants and children as a result of the FQPA amendments
creates a powerful mechanism through which EPA can address the effects of pesticides on infants,
children and pregnant women in communities of color and low-income communities, and in
particular agricultural worker communities.
4.
Data Collection
In setting or revoking a tolerance for a pesticide chemical residue under Section 408(b) of
the FFDCA, EPA may consider "available data and information" on the anticipated residue levels of
the pesticide in or on food, as well as the actual levels that have been measured. 21 U.S.C. §
346a(b)(2)(E)(i). Section 408 (f) provides that if EPA determines that additional data or information
are "reasonably required" to support the continuation of a tolerance or exemption in effect, the
agency may require submission of such by way of notice, rule, or order. 21 U.S.C. § 346a(f)(a)(A)-
(C). EPA may issue an order modifying or revoking a tolerance or exemption if the required
submission is not made in the time specified. 21 U.S.C. § 346a(f)(a)(2). As in the pesticide
registration process, the agency can use data collection provisions to consider a broad range of data
and information that might bear on environmental justice concerns.
When assessing chronic dietary risks in connection with the establishment of a tolerance,
EPA may consider available data and information on the percentage of food actually treated —
including aggregate pesticide use data from the Department of Agriculture — if four conditions are
met. First, the data must be reliable. Second, the exposure estimate must not understate exposure
for any "significant subpopulation group." Third, if data are available on pesticide use and food
consumption in a particular area, the population in that area must not through its diet be exposed to
residues above those estimated by EPA. Fourth, the estimate for anticipated dietary exposure must
be periodically reevaluated. 21 U.S.C. § 346a(b)(2)(F). When the agency chooses to rely upon data
indicating the percentage of food actually treated, it thus has the authority to ensure that the
exposure estimate does not understate exposure to communities of color and low-income
communities.
5. Mechanisms for Agency Action on a Tolerance ot Exemption
Petitions to establish pesticide tolerances or exemptions typically accompany applications for
registration. However, the petition procedure actually is much broader in scope. Under Section
408(d) of the FFDCA, "any person" may file a petition proposing the issuance of a regulation that
establishes, modifies, or revokes a tolerance or an exemption. 21 U.S.C. § 346a(d)(l). After
considering the petition and "any other information available to the Administrator," EPA must (1)
issue a final regulation establishing, modifying, or revoking a tolerance or an exemption; (2) issue a
proposed regulation; or (3) issue an order denying the petition. 21 U.S.C. § 346a(d)(4)(A). The
agency also may act on its own initiative to issue a regulation establishing, modifying, suspending, or
189
-------
revoking a tolerance or an exemption, or establishing general procedures and requirements to
implement this section. 21 U.S.C. § 346a(e)(l).
Similarly, pursuant to Section 408(g) of the FFDCA, any person may file objections within
60 days after issuance of a regulation or order concerning pesticide tolerances or exemptions. 21
U.S.C. § 346a(g)(2)(A). EPA, upon the agency's own initiative or upon the request of an interested
person and after due notice, must hold a public evidentiary hearing if necessary and receive factual
evidence relevant to material issues of fact raised by the objections. 21 U.S.C. § 346a(g)(2)(B).
These provisions establish a means to seek modification or revocation of tolerances for the
residue of pesticides that are having severe adverse impacts on low-income communities or
communities of color. EPA is required to consider the contents of the petition, as well as "any
other information available," which provides broad latitude as to information the agency may
examine. Moreover, even absent a petition from the public, the agency may act on its own initiative
to address a tolerance or exemption for a pesticide that has come to present unacceptable harms.
C. Pesticide Reregisttation
Section 4 of FIFRA, added in 1988, requires EPA to reregister all pesticides containing an
active ingredient that was a component of any pesticide initially registered prior to November 1,
1984, with limited exceptions. 7 U.S.C. § 136a-l(a). The purpose of reregistration is to ensure that
previously registered pesticides continue to satisfy current data, scientific, and regulatory standards.
The agency also is using the pesticide reregistration process to carry out the reassessment of existing
pesticide residue tolerances as mandated by the FQPA and described in Part III.B., above.
Although the FIFRA reregistration process was initially directed only to certain older pesticides,
FIFRA has set a goal of reviewing the registration of each pesticide at least once every 15 years. 7
U.S.C. § 136a(g)(l)(A). The reregistration process has functionally (although not entirely) replaced
FIFRA's more costly and time-consuming Special Review process for evaluating pesticide safety. See
7 U.S.C. § 136a(c)(8); 40 C.F.R. Part 154.
FIFRA mandates a five-phase process for reregistering all covered pesticides and establishes
time frames for compliance and responsibilities for both EPA and registrants. To date, Phases I, II,
III, and IV of the statutory reregistration process have been completed. 7 U.S.C. §§ 136a-l(c)-(f).
Phase V, which requires the agency to review all of the data for each active ingredient and take
appropriate action, is underway. 7 U.S.C. §§ 136a-l(g). In connection with Phase V of the
reregistration process, EPA must review all of the data submitted in connection with each active
ingredient, as well as " all other available data found by 'the Administrator to be relevant" 1 U.S.C. § 136a-
l(g)(l) (emphasis added). Upon completion of the Phase V review for each active ingredient of a
pesticide, EPA must determine whether to reregister the pesticide under the criteria of FIFRA §
3(c)(5) (discussed above). 7 U.S.C. § 136a-l(g)(2)(C).
Reregistration is important from an environmental justice perspective, because it requires
that the safety of every pesticide will be reviewed periodically by EPA. Thus, even if a pesticide was
initially registered or provided with a tolerance without reference to impacts on communities of
color and low-income communities, these concerns can be accounted for during the reregistration
process.
190
-------
D. Experimental Use Permits
For an applicant to generate sufficient data on a pesticide to seek registration, the applicant
may need to test — and therefore distribute in limited fashion — an unregistered substance. This can
be done pursuant to a Section 5 experimental use permit, or EUP, See 7 U.S.C. § 136c; 40 C.F.R.
Part 172. EPA fixes the terms and conditions for use under the permit. 7 U.S.C. § 136c(c). The
agency may revoke an EUP at any time upon a finding that its terms and conditions are inadequate
to avoid unreasonable adverse effects on the environment 7 U.S.C. § 136c(e). The agency is
authorized to establish a temporary tolerance or exemption for a pesticide under an EUP. 7 U.S.C.
§ 136c(b); 21 U.S.C. § 346a(r). When an EUP is issued for a pesticide containing a chemical or
combination of chemicals that has not been included in any previously registered pesticide, the
agency may. require that studies be conducted to detect whether use of the pesticide under the
permit may cause unreasonable adverse effects on the environment. 7 U.S.C. § 136c(d).
Thus, EPA can incorporate environmental justice concerns into the granting and oversight
of an EUP to the same degree as they are addressed in connection with pesticide registrations. In
some cases, pesticides covered by EUPs may pose a more serious concern than other pesticides
because of the absence of important data at the time the EUP is issued.
IV. DELEGATION OF PROGRAMS TO STATES AND TRIBES
Although primary responsibility for pesticide regulation rests with EPA, states possess
limited authority under FIFRA to regulate the use and distribution of pesticides. 7 U.S.C. § 136v.
Additionally, FIFRA places primary enforcement authority for pesticide use violations with the
states. 7 U.S.C. § 136w-l. States also can obtain approval from EPA to certify pesticide applicators.
7 U.S.C. § 136i. Moreover, a state may seek an exemption from complying with any provision of
FIFRA under narrow circumstances. 7 U.S.C. § 136p. Finally, states are authorized to issue
experimental use permits. 7 U:S.C. § 136c(f). In each instance where pesticide regulatory or
enforcement authority is granted to the states, however, FIFRA also provides for EPA oversight.
As discussed below, EPA has ample authority to ensure that state pesticide decision-making
appropriately incorporates environmental justice concerns.
A. State Regulatory Authority
A state may regulate the sale or use of any federally registered pesticide or device as long as
the state allows no sale or use that is prohibited by FIFRA. Nor may a state impose packaging or
labeling requirements that vary from those required by FIFRA. 7 U.S.C. § 136v(a)-(b). Additionally,
in the event of a "special local need," states are authorized by FIFRA to register additional uses for
federally registered pesticides, or to register new end-use pesticides that are closely related to
federally registered pesticides. Set 1 U.S.C. § 136v(c)(l); 40 C.F.R. § 162.152(b)(2). A special local
need is an existing or imminent intrastate pest problem for which an appropriate federally registered
pesticide is not sufficiently available. 40 C.F.R. § 162.151 (i).
A state registration generally is considered a federal registration, except that a state
registration authorizes use and distribution only within that state. State registration must be
191
-------
consistent with the purposes of FIFRA and is not allowed if registration for the use has been denied,
disapproved, or canceled by EPA. Id. The process by which a state issues a registration largely
parallels the federal regulation process. See 40 C.F.R. § 162.153.
Pursuant to Section 24(c) of FIFRA, EPA reviews state registrations and may disapprove a
state registration for a variety of reasons. 7 U.S.C. § 136v(c)(2)-(3); 40 C.F.R. § 162.154. Of
particular importance is the agency's ability to disapprove any state registration at any time upon
determining that use of the pesticide under the state registration would constitute an imminent
hazard. 7 U.S.C. § 136v(c)(3); 40 C.F.R. § 162.154(b)(l)(i). Moreover, if EPA determines that a
state "is not capable of exercising adequate controls to assure that State registration under this
section will be in accord with the purposes of [FIFRA] or has failed to exercise adequate controls,
the Administrator may suspend the authority of the State to register pesticides until such time as the
Administrator is satisfied that the State can and will exercise adequate controls." 7 U.S.C. §
136v(c)(4); 40 C.F.R. § 162.155.
State authority to register new pesticide uses, and in some instances even new pesticides,
raises the concern that a state might register a pesticide without considering relevant environmental
justice concerns. However, FIFRA provides a mechanism for EPA to ensure that states consider
potential impacts on communities of color and low-income communities. First, the agency is
authorized to disapprove any state registration at any time if use of the pesticide presents an
imminent hazard — that is, if continued use of the pesticide would be likely to result in unreasonable
adverse effects on the environment. See 7 U.S.C. § 136(1). Second, the agency possesses the power
to suspend a state's registration authority altogether when a state continues to make registration
decisions that are inconsistent with FIFRA's purpose of avoiding unreasonable adverse effects to
man and the environment. As discussed elsewhere in this chapter, this obligation to prevent
unreasonable adverse effects on the environment provides authority for addressing environmental
justice concerns.
B. State Enforcement Authority
A state has primary enforcement responsibility for pesticide use violations during any period
for which EPA determines that the state: "(1) has adopted adequate pesticide use laws and
regulations . . . ; (2) has adopted and is implementing adequate procedures for the enforcement of
such State laws and regulations; and (3) will keep such records and make such reports showing
compliance" with the first two requirements as EPA may require. 7 U.S.C. § 136w-l(a). A state also
may have primary enforcement authority for pesticide use violations as a result of entering into a
cooperative agreement with the agency, or by virtue of having in place an approved pesticide
applicator certification plan. 7 U.S.C. § 136w-l(b). EPA has primary enforcement responsibility for
those states that do not have primary enforcement responsibility under FIFRA. 7 U.S.C. § 136w-
Under FIFRA Section 27 (a), complaints or other information conveyed to EPA alleging
pesticide use violations under the Act are referred to the appropriate state officials. However, if the
state has not begun appropriate enforcement action within 30 days, EPA may act on the complaint
or information. 7 U.S.C. § 136w-2(a).
192
-------
Section 27(b) dkects EPA, upon determining that a state with primary enforcement
responsibility for pesticide use violations is not carrying out or cannot carry out its responsibility, to
give notice to the state and provide 90 days for the state to cure any inadequacies. If EPA then
determines that the state program remains inadequate, the agency may rescind, in whole or in part,
the state's primary enforcement responsibility. 7 U.S.C. § 136w-2(b); 40 C.F.R. Part 173.
Notwithstanding this provision, the agency remains free to enforce the pesticide laws upon
determining that emergency conditions exist that require immediate action, and that the state is
unwilling or unable to respond adequately. 7 U.S.C. § 136w-2(c).
Given the states' primary role in enforcing pesticide use requirements under FIFRA, EPA's
authority to respond to state shortcomings is significant for environmental justice purposes. Section
27 ensures that the agency, upon learning that a state with primary enforcement authority is not
acting on a complaint from an affected community, can take swift action. Moreover, if a state
consistently fails to carry out its enforcement authority on behalf of communities of color and low-
income communities, the agency can potentially rescind the state's authority altogether, or use the
threat of recission to change state practices.
C. State Certification of Pesticide Applicators
Pursuant to Section ll(a) of FIFRA, states are authorized to certify pesticide applicators
after having received EPA's approval of their certification plans. 7 U.S.C. § 136i(a)(2). Tribes may
also establish certification plans. 40 C.F.R. § 171.10. The state's or Tribe's plan must, in EPA's
judgment, provide that the agency responsible for administering the plan "will make such reports to
the Administrator in such form and containing such information as the Administrator may from
time to time require." 7 U.S.C. § 136i(a)(2)(D). When EPA determines that a state or Tribe is not
administering the certification program pursuant to the approved plan, the agency may, after notice
and hearing and if appropriate corrective action is not taken, withdraw approval of the plan. 7
U.S.C. § 136i(b). Here again, in the event that a state or Tribe is conducting its certification program
in a manner that does not appropriately address, or that aggravates, environmental justice concerns,
the agency can rely upon its statutory oversight authority to raise these concerns with the state or
Tribe and, if necessary, withdraw the authority.
D. Emergency Exemption of State and Federal Agencies from FIFRA
Pursuant to Section 18 of FIFRA, EPA possesses discretion to exempt any federal or state
agency from any provision of FIFRA if the agency determines that conditions exist that require the
exemption. 7 U.S.C. § 136p; 40 C.F.R. Part 166. In the event that EPA grants such an exemption
for a pesticide chemical, the agency must also establish a time-limited tolerance or exemption for the
pesticide chemical residue. 21 U.S.C. § 4080(6); 40 C.F.R. Part 176. Section 18 is primarily a
vehicle for allowing states to use a pesticide for an unregistered use for a limited time if the agency
makes a determination that emergency conditions exist. By regulation, the agency may revoke or
modify a Section 18 exemption for a number of reasons, including when use of the pesticide under
the exemption may cause unreasonable adverse effects on the environment. 40 C.F.R. § 166.35.
Thus, EPA retains a means of controlling potentially hazardous state activity under Section 18 in the
event that communities of color and low-income communities are disproportionately bearing the
burden of the unregistered pesticide use.
193
-------
E. State Authority to Issue Experimental Use Permits
FIFRA authorizes states to issue experimental use permits, or EUPs, pursuant to regulations
prescribed by EPA. 7 U.S.C. § 136c(f); 40 C.F.R. §§ 172.20-172.26. The agency reviews state-issued
EUPs and may revoke an EUP for various reasons, including if "its terms and conditions are
inadequate to avoid unreasonable adverse effects on die environment." 40 C.F.R. § 172.25. EPA's
review of state-issued EUPs can be used to ensure that environmental justice concerns widi an
EUP, if any, have been incorporated at the state level.
V.
ENFORCEMENT
The general rule under FIFRA is that "no person in any State may distribute or sell to any
person any pesticide that is not registered." 7 U.S.C. § 136a(a). Unless otherwise authorized, it is
unlawful to distribute or sell any unregistered pesticide, or any pesticide whose registration has been
canceled or suspended. 7 U.S.C. §,136j(a)(l)(A); 7 U.S.C. § 136a(a). It is unlawful to distribute or
sell any pesticide that is adulterated or misbranded. 7 U.S.C. § 136j(a)(l)(E). It is also unlawful to
use any pesticide in a manner inconsistent with its labeling. 7 U.S.C. § 136j(a)(2)(G). The Secretary
of Health and Human Services, via the Food and Drug Administration, possesses enforcement
authority under the FFDCA. As discussed above, states have primary enforcement responsibility
for pesticide use violations under FIFRA, but the Act gives EPA an active role in overseeing state
enforcement, and provides EPA with a number of enforcement tools. For a fuller discussion of
statutory enforcement authorities for promoting environmental justice, see Chapter 5. •
Section 9(a) of FIFRA authorizes EPA, at reasonable times, to enter and inspect
establishments or places where pesticides are located for purposes of inspection, taking of samples,
and compliance assurance. See 1 U.S.C. § 136g(a).
Section 13(b) of FIFRA authorizes EPA to seek seizure through in rem condemnation
proceedings of any pesticide or device if, when used in accordance with the requirements of FIFRA
and as directed by its labeling, the pesticide or device "nevertheless causes unreasonable adverse
effects on the environment." 7 U.S.C. § 136k(b)(3). Thus the agency may take immediate action
against a pesticide, even one that may be in technical compliance with FIFRA, if use of the pesticide
is resulting in harmful impacts to communities of color and low-income communities.
Section 14(a) of FIFRA authorizes EPA to assess a civil penalty of not more than $5,000
per offense against any registrant, commercial applicator, wholesaler, dealer, retailer, or other
distributor for violations of FIFRA. 7 U.S.C. § 136/(a)(l). Private applicators and others violating
these laws are subject to lesser civil penalties. 7 U.S.C. § 136/(a)(2). Persons charged must be given
notice and an opportunity for a hearing. 7 U.S.C. § 1361(a)(3). In determining the amount of the
penalty, one factor EPA must consider is "the gravity of the violation." 7 U.S.C. § 1361(a)(4). In
assessing gravity, EPA could consider whether the harm is disproportionately suffered by
communities of color or low-income communities, particularly agricultural worker communities,
which often lack the information, financial resources, and political power necessary to prevent or
address violations of the pesticide laws.
194
-------
Section 19(d) of FIFRA authorizes EPA to pursue a broad array of remedies upon a
person's failure to comply substantially with a recall, or with a regulation or order dealing with the
storage, transportation, or disposal of pesticides whose registration has been suspended or canceled.
These include issuance of a stop sale, use, or removal order; seizure; assessment of civil penalties;
initiation of criminal proceedings; and requests for injunctive relief. 7 U.S.C. § 136q(d)(4). This
section provides the agency with a wide range of options for addressing harmful impacts on
communities of color and low-income communities that may result from the improper disposition
of the dangerous subset of pesticides whose registration has been suspended or canceled, or which
are the subject of recall orders.
VI. INFORMATION GATHERING (RESEARCH, MONITORING,
AND REPORTING)
In order to incorporate environmental justice into decision-making under FIFRA and the
FFDCA, it is important that EPA possess relevant, reliable, extensive, and timely information. As
set forth below, these statutes supply the agency with many means of gathering many different types
of information. These tools complement the various pesticide data submission requirements
authorized in connection with the establishment of pesticide tolerances and the registration of
pesticides, discussed in Part III, above.
A.
Research
Section 20(a) of FIFRA requires EPA to undertake research, including research by grant or
contract with other federal agencies, universities, or others, "as may be necessary to carry out the
purposes of [FIFRA]." 7 U.S.C. § 136r(a). Given the unambiguous statutory purpose of preventing
unreasonable adverse effects on the environment, the agency enjoys broad discretion in determining
the nature of the research to be carried out pursuant to this section. EPA thus could promote
environmental justice by conducting research that will help prevent and address the most pressing
pesticide risks to communities of color and low-income communities.
EPA is further directed by Section 20(a) to conduct research into integrated pest
management (IPM) in coordination with the Department of Agriculture. 7 U.S.C. § 136r(a). IPM is
a sustainable approach to pest management that combines "biological,* cultural, physical, and
chemical tools in a way that minimizes economic, health, and environmental risks." 7 U.S.C. § 136r-
1. FIFRA further directs the Department of Agriculture, in cooperation with EPA, to implement
research, demonstration, and education programs to support the adoption of IPM. 7 U.S.C. § 136r-
1. This section, which was added by the FQPA, also provides that the two agencies shall make
information on IPM widely available to pesticide users. Id. Section ll(c) of FIFRA provides that
all state and federal programs for the certification of pesticide applicators shall include provisions for
making instructional materials on.IPM techniques available to interested individuals upon request,
and shall notify all such individuals of the availability of these materials. 7 U.S.C. § 136i(c).
FIFRA's mandate that federal agencies embrace and promote IPM is of great importance to
environmental justice. Integrated pest management techniques rely on chemical pesticides as merely
one tool among many to be used for pest control and eradication, so by definition less pesticide is
195
-------
applied. EPA could conduct research that continues to link IPM and reduced pesticide impacts in
communities of color and low-income communities.
Section 23 (c) of FIFRA provides that EPA, in cooperation with the Secretary of
Agriculture, shall use the cooperative state extension services to inform and educate pesticide users
about accepted uses and FIFRA regulations. 7 U.S.C. § 136u(c). This section provides a tool for
ensuring that affected communities are aware of their rights under FIFRA. For example, this
provision creates a mechanism for disseminating information directly to agricultural workers about
the protections afforded to them by the Worker Protection Standard.
B. Monitoring and Data Collection
Section 20(b) of FIFRA provides that EPA, in cooperation with other federal, state, and
local agencies, shall formulate and periodically revise a national plan for monitoring pesticides.
Additionally, under Section 20(c) of FIFRA, EPA must undertake
such monitoring activities, including, but not limited to monitoring in air, soil, water,
man, plants, and animals, as may be necessary for the implementation of [FIFRA]
and of the national pesticide monitoring plan. The Administrator shall establish
procedures for the monitoring of man and animals and their environment for
[incidental] pesticide exposure, including, but not limited to, the quantification of
incidental human and environmental pesticide pollution and the secular trends
thereof, and identification of the sources of contamination and their relationship to
human and environmental effects. Such activities shall be carried out in cooperation
with other Federal, State, and local agencies.
7 U.S.C. § 136r(c). These provisions grant EPA extensive authority to monitor the direct and
indirect effects of pesticides. EPA can prioritize and carry out monitoring that accounts not only
for exposures to the general population, but also to particular communities — defined, for example,
by geography, income level, or racial composition. Moreover, under the authority to monitor "man
and animals and their environment" for incidental pesticide exposures, EPA could address the
reliance by some communities on fish and other wildlife for sustenance by conducting biological
monitoring of specific ecosystems and food chains. OGC 1994 Memorandum.
*
The Department of Agriculture, in consultation with EPA, must require all certified
applicators of restricted-use pesticides to maintain detailed application records. 7 U.S.C. § 136i-
l(a)(l). These records are to be available upon request to any federal or state agency that deals with
pesticide use or related health or environmental issues. 7 U.S.C. § 136i-l(b). Each such agency is
further directed to conduct surveys and record data from individual applicators to facilitate statistical
analysis for environmental and agronomic purposes. Id. Although enforcement of these provisions
is left to the Department of Agriculture, 7 U.S.C. § 136i-l(d), EPA could use its consultative role to
ensure that records kept by applicators of restricted-use pesticides contain sufficient detail to
ascertain the extent to -which these pesticides are applied in communities of color and low-income
communities. The tvvo agencies also must survey the records maintained under this section to
develop and maintain a database sufficient to enable them to publish annual comprehensive reports
concerning agricultural and nonagricultural pesticide use. These provisions allow EPA to play a role
196
-------
in organizing the database and the required reports in such a way as to incorporate geographic and
demographic information that expands our understanding of pesticide exposures in communities of
color and low-income communities.
FIFRA requires the.Department of Agriculture to collect "data of statewide or regional
significance on the use of pesticides to control pests and diseases of major crops and crops of
dietary significance, including fruits and vegetables." 7 U.S.C. § 136i-2(a). Data is to be collected by
surveys of farmers "or from other sources offering statistically reliable data." 7 U.S.C. § 136i-2(b)
The Department must, as appropriate, coordinate with EPA in the design of the surveys and make
the aggregate result of such surveys available to EPA. 7 U.S.C. § 136i-2(c). This section which was
enacted pursuant to the FQPA, could provide a tool for examining state and regional data
concerning the impacts of pesticides on communities of color and low-income communities.
Although the provisions are directed primarily to the Department of Agriculture, EPA plays an
important role in participating in the design of the surveys and receives the results. Additionally this
provision would seem to allow environmental justice experts and advocates to provide survey data
as appropriate, so long as the data is statistically reliable.
Section 25(d)(l) of FIFRA directs EPA to submit to a scientific advisory panel for review
notices of the proposed and final form of regulations, as well as notices of intent to cancel a
pesticide's registration or change its classification. The panel's task is to "comment as to the impact
on health and the environment of the action proposed." 7 U.S.C. § 136w(d)(l). The agency must
also solicit from the advisory panel "comments, evaluations, and recommendations for operating
guidelines to improve the effectiveness and quality of scientific analyses" made by EPA personnel
that lead to decisions under FIFRA. Id. The chairman of the advisory panel may, after consultation
with EPA, create temporary subpanels with regard to specific projects to assist the full panel. The
advisory panel consists of seven members appointed by EPA from a list of 12 nominees - six
nominated by the National Institutes of Health, and six nominated by the National Science
Foundation. Members are selected "on the basis of their professionalqualification* to assess the effects of the
impact of pesticides on health and the environment. To the extent feasible to ensure multidisciplinary
representation, the panel membership shall include representation from the disciplines of toxicology,
pathology, environmental biology, and related sciences." 7 U.S.C. § 136w(d)(l) (emphasis added).
FIFRA also mandates establishment of a science review board, consisting of 60 scientists, to be
available to assist in reviews conducted by the advisory panel. 7 U.S.C. § 136w(d)(2).
Section 25 (e) directs EPA, through written procedures, to provide for peer review "with
respect to the design, protocols, and conduct of major scientific studies" conducted under FIFRA
by EPA and other federal agencies, states, or individuals or other entities working under a grant,
contract, or cooperative agreement from or with EPA. The agency must use the advisory panel'
discussed above, to provide for peer review with respect to the results of scientific studies relied'
upon by EPA in connection with cancellation or suspension of a pesticide registration, or change in
classification of a pesticide. The term "peer review" means "an independent evaluation by scientific
experts, either within or outside the [EPA], in the appropriate disciplines." 7 U.S.C. § 136w(e).
The Scientific Advisory Panel, as well as any subpanels, the science review board, and other
sources of peer review, present an excellent vehicle for incorporating environmental justice concerns
into the FIFRA scientific peer review processes. For example, given the multidisciplinary nature of
197
-------
the panel, and the fact that the list of disciplines to be represented on the panel is not exclusive,
EPA possesses the authority to ensure that at least one panel appointee possesses expertise or
experience on pesticide issues affecting communities of color and low-income communities. The
panel's broad mandate to comment on an action's likely impact on health and the environment
allows a means by which the panel can, in appropriate instances, factor environmental justice
considerations into its assessment.
Section 408(p) of the FFDCA, which was added by the FQPA, requires EPA, in
consultation with the Department of Health and Human Services, to develop a screening program
to determine whether certain substances may have an effect in humans similar to an effect produced
by naturally occurring estrogen, or such other endocrine effect as EPA may designate. 21 U.S.C. §
346a(p). Both in carrying out the this mandate and in reporting on its results, the agency has the
opportunity to promote environmental justice by incorporating concerns about how endocrine
disruption affects residents communities of color and low-income communities, such as the children
of agricultural workers.
Section 301 of the FQPA requires the Department of Agriculture, in consultation with EPA
and the Department of Health and Human Services, to coordinate the development and
implementation of survey procedures to ensure that adequate data on food consumption patterns of
infants and children are collected. The Department of Agriculture furthermore must ensure that the
three agencies' residue data collection activities provide for "the improved data collection of
pesticide residues, including guidelines for the use of comparable analytical and standardized
reporting methods, and the increased sampling of foods most likely consumed by infants and
children." FQPA Section 301, 21 U.S.C. § 346a note. The Department of Agriculture has
incorporated the FQPA mandate to improve data collection on pesticide residues with regard to
infants and children into its pre-existing Pesticide Data Program.
EPA could use its consultative role in part to ensure that survey and data collection
techniques fully account for children in communities of color and low-income communities, who
are likely to have different food consumption patterns or face increased exposure to pesticide
residues compared to children in other communities. Survey procedures and data collection with
regard to infants and children can take these disparities into account.
Under Section 408(b) of the FFDCA, the three agencies must conduct surveys to document
dietary exposure to pesticides among infants and children. 21 U.S.C. § 346a(b)(2)(C). EPA can use
its consultative role to ensure that these surveys target dietary exposure information for infants and
children in low-income communities and communities of color. As has been mentioned, this is
particularly important with respect to agricultural worker communities.
C. Reporting
Section 6(a) of FIFRA provides that "[i]f at any time after the registration of a pesticide the
registrant has additional factual information regarding unreasonable adverse effects on the
environment of the pesticide, the registrant shall submit such information to the Administrator." 7
U.S.C. § 136d(a)(2); 40 C.F.R. § 152.125. EPA interprets this reporting provision broadly. See 40
C.F.R. Part 159. For example, the agency requires registrants to submit information other than that
198
-------
explicitly set forth in the regulations "if the registrant knows, or reasonably should know, that if the
information should prove to be correct, EPA might regard the information alone or in conjunction
with other information about the pesticide as raising concerns about the continued registration of a
product or about the appropriate terms and conditions of registration of a product." 40 C.F.R. §
159.195. This provision gives EPA broad authority to collect information about a pesticide's
adverse effects and to use that information in agency decision-making.
Pursuant to Section ll(a) of FIFRA, states and Tribes are authorized to certify pesticide ,
applicators after having received EPA approval of their certification plans. 7 U.S.C. § 136i(a)(2); see
discussion of EPA's oversight authority in Part IV.C., above. The plan must provide that the state
or Tribe "will make such reports to the Administrator in such form and containing such information
as the Administrator may from time to time require." 7 U.S.C. § 136i(a)(2)(D); 40 C.F.R. § 171.7. In
states for which a plan has not been approved, EPA conducts a certification program in
consultation with the state governor, and may require regulated persons "to maintain such records
and submit such reports concerning the commercial application, sale, or distribution of such
pesticide as the Administrator may by regulation prescribe." 7 U.S.C. § 136i(a)(l). Thus, whether
certification of pesticide applicators takes place under an approved state plan or EPA's own
program, FIFRA provides for broad reporting that can assist EPA in determining where and to what
extent pesticide application is occurring in communities of color and low-income communities.
Section 8(a) of FIFRA authorizes EPA to prescribe regulations "requiring producers,
registrants, and applicants for registration to maintain such records with respect to their operations
and the pesticides and devices produced as the Administrator determines are necessary for the
effective enforcement of [FIFRA] and to make the records available for inspection and copying...
." 7 U.S.C. § 136f(a); 40 C.F.R. Part 169. Under the regulations, one important category of records
that must be provided addresses pesticide disposal. Producers must keep records on the method
and date of disposal, the location of disposal sites, and the types and amounts of pesticides pr active
ingredients disposed of. Compliance with related rules under RCRA excuses compliance from these
record-keeping requirements. See 40 C.F.R. § 169.2(i). Review of disposal records by EPA can be
important in identifying the extent to which communities of color or low-income communities bear
a disproportionate burden in this regard.
Section 408(o) of the FFDCA directs EPA, in consultation with the Departments of
Agriculture and Health and Human Services, to publish and provide to large retail grocers for public
display, "in a format understandable to a lay person," a document that (1) discusses the risks and
benefits of chemical residues in or on food, (2) lists pesticides for which there are benefit-based
tolerances and the foods that may contain these residues, and (3) makes recommendations for
reducing dietary exposures to pesticide residues consistent with maintaining a healthy diet. This
must be done annually. 21 U.S.C. § 346a(o). This section gives EPA a practical vehicle for
disseminating pesticide information. The agency can promote environmental justice by
supplementing the brochure to address pesticide issues of particular concern to low-income
communities and communities of color and by making it available in multiple languages.
199
-------
VII. FINANCIAL ASSISTANCE
Pursuant to Section 23 (b) of FIFRA, EPA is authorized to enter into cooperative
agreements with states and Tribes for purposes of delegating enforcement authority to them, and of
assisting them to train and certify pesticide applicators. 7 U.S.C. § 136u(a). The agency may also
provide funding through cooperative agreements, id., or enter into contracts with federal, state, or
tribal agencies to encourage the training of certified applicators. 7 U.S.C. § 136u(b). Through the
vehicle of cooperative agreements, EPA has a means of encouraging and assisting delegated
programs to address and respond to environmental justice issues.
200
-------
CHAPTER 15
SAFE DRINKING WATER ACT ("SDWA")
42 U.S.C. §§ 300f to 300J-26
The Safe Drinking Water Act (SDWA) was enacted in 1974 and amended in 1986 andl996.
The Act has two principal programs: (1) regulating public water systems and die quality of water
they provide for human consumption; and (2) protecting underground sources of drinking water
from contamination. Environmental justice goals present an important challenge in implementing
the public health protection provisions of the Act. Many people in the United States - including
residents of colonias along die U.S.-Mexico border and farmworker communities — still live widiout
access to safe drinking water. Contaminated drinking water supplies may present particularly high
risks to children and other sensitive populations. In addition, public drinking water systems in small,
low-income communities are least able to meet stringent health-based standards for drinking water
and to afford to fix problems with drinking water quality.
This chapter describes the key provisions of the Act authorizing EPA to advance
environmental justice goals when carrying out its regulatory functions to protect drinking water
quality. The discussion of statutory audiorities presented in diis chapter is intended to provide die
public with a foundation for further inquiry into the political, technical, legal and other
considerations involved in pursuing action to address environmental justice issues under a particular
area of authority. Following Part I, which highlights specific mechanisms under the Act for EPA to
respond to environmental justice concerns, Part II discusses EPA's audiority to set the standards
that underlie EPA and state drinking water programs - standards for drinking water quality that
must be met by public water systems, as well as standards governing underground injection of
contaminants. Parts III through V describe permitting audiorities under the Act, opportunities for
advancing environmental justice goals in EPA's oversight of state programs, and enforcement
authorities. Part VI discusses SDWA's extensive information gathering authorities, such as the
requirement of a "consumer confidence report,"and research focusing on vulnerable
subpopulations. The chapter concludes widi a review of the agency's authority to promote
environmental justice through its provision of financial assistance to states and Tribes.
I.
GENERAL PROVISIONS
Unlike the Clean Water Act and odier federal environmental statutes, die Safe Drinking
Water Act has no provisions setting out overall goals or policies. In passing the Act in 1974,
Congress included no findings about die conditions establishing the need for the statute nor any
codified statement of goals and purposes to provide direction in interpreting die provisions of die
statute. Aldiough it has no overall statement of goals, the SDWA is, nonedieless, clearly focused on
protecting public healdi from contaminated drinking water.
As discussed throughout tiiis chapter, EPA has authority to protect public health through its
standard setting, permitting, enforcement, information gathering, and financial assistance activities
201
-------
under SDWA. In addition, the following provisions create specific mechanisms for EPA to respond
to community public health needs and concerns.
A. Imminent and Substantial Health Threats
SDWA Section 1431(a) provides that whenever the agency receives "information that a
contaminant [that] is present in or is likely to enter a public water system or an underground source
of drinking water may present an imminent and substantial endangerment to the health of persons,"
EPA is authorized to "take such actions as he may deem necessary to protect the health of such
persons." 42 U.S.C. § 300i(a). This provision gives EPA broad authority to promote one of the
principal goals of environmental justice, protection of public health, by taking whatever action is
necessary to protect anyone whose health is in imminent and substantial danger due to a
contaminant in drinking water.
B. National Drinking Water Advisory Council
SDWA Section 1446 establishes a National Drinking Water Advisory Council. 42 U.S.C. §
300J-5. The Council is composed of 15 members, five of which "shall be appointed from the
general public," five from state and local agencies concerned with water hygiene and public water
supply, and five from private organizations or groups with an active interest in water hygiene and
public water supply. The purpose of the Council is to advise EPA about matters relating to the
"activities, functions, and policies of the Agency" under the Act. 42 U.S.C. § 300j-5(b). Thus, the
provision gives EPA authority to involve communities of color and low-income communities in
decision-making under SDWA, through membership in the Advisory Council.
II. STANDARD SETTING/RULE-MAKING
A. Public Water Systems
1. National Primacy Drinking Water Regulations
Under the Safe Drinking Water Act, EPA adopts national primary drinking water regulations
for public water systems. Section 1412 requires EPA to promulgate these regulations for any
contaminants that EPA determines: "may have an adverse effect on the health of persons;" are
known to occur, or there is a substantial likelihood that they will occur, in public water systems with
a frequency and at levels of public health concern; and present a meaningful opportunity for health
risk reduction through regulation. 42 U.S.C. §§ 300g-l(b)(l)(A). For each contaminant, the primary
drinking water regulation either sets a "maximum contaminant level" (MCL) or specifies each
treatment technique that reduces the level of the contaminant so that it satisfies Section 1412. 42
U.S.C. § 300f(l). The regulation also contains criteria and procedures - for example, quality control,
testing, and operations and maintenance procedures - to assure a supply of drinking water that
dependably complies with the MCL. Id.
202
-------
At the same time that EPA publishes a national primary drinking water regulation for a
contaminant, the agency must also publish a maximum contaminant level goal (MCLG), set at the
level "at which no known or anticipated adverse effects on the health of persons occur and which
allows an adequate margin of safety." 42 U.S..C. §§ 300g-l(b)(4)(A). A national primary drinking
water regulation must specify an MCL that is "as close to the maximum contaminant level goal as is
feasible." 42 U.S,C. §§ 300g-l(b)(4)(B). The Act defines the term "feasible" for this purpose as
"feasible [sic] with the use of the best technology, treatment techniques and other means which the
Administrator finds, after examination for efficacy under field conditions. ... are available (taking
cost into consideration)." 42 U.S.C. § 300g-l(b)(4)(D).
Thus, MCLGs set contaminant levels that protect against all known or anticipated health
effects with an adequate margin of safety, while the MCLs included in primary drinking water
regulations establish contaminant levels that factor in technological and financial considerations.
These SDWA standard setting provisions give EPA authority to act in two important ways. First,
the agency can identify any drinking water contaminants that may adversely affect the health of
communities of color and low-income communities and ensure that MCLs and MCLGs are adopted
to reduce those risks. Second, EPA can ensure that MCLGs reflect health risks that may be of
particular concern to communities of color and low-income communities, due to cumulative
impacts of pollutants, or due to the effects of drinking water pollutants on sensitive populations.
Under Section 1412(b)(5), exceptions from the feasible level are allowed for MCLs if the
means used to determine the feasible level would increase the concentration of other contaminants
in drinking water or interfere with techniques or processes used to comply with other primary
drinking water regulations. In these cases the MCL or alternative treatment technique(s) required
must "minimize the overall risk of adverse health effects by balancing the risk from the contaminant
and the risk from other contaminants" that would have been affected by the feasible level. 42
U.S.C. § 300g-l(b)(5). Provisions such as this one allowing exceptions from health-based standards
can raise environmental justice concerns because they might allow communities of color and low-
income communities to be subject to less-protective standards. In this case, however, EPA could
use its mandate to "minimize the overall risk of adverse health effects" to reduce environmental
justice concerns that might otherwise arise.
Under Section 1412(b)(l)(D), EPA is authorized to adopt an interim national primary
drinking water regulation to "address an urgent threat to public health as determined by the
Administrator" after consultation with the Centers for Disease Control and Prevention or the
National Institutes of Health. 42 U.S.C. § 300g-l(b)(l)(D) (emphasis added). In adopting the
interim regulation, EPA is not required to complete the benefit/cost analysis or make the
determination that the benefits justify the costs of the regulation as described below. Id. That
benefit/cost analysis and determination must be made within three years of the issuance of the
interim regulation, and the regulation must be repromulgated or revised no later than five years after
that date. Id. Under this provision, EPA can promote environmental justice by responding
expeditiously to an urgent threat to public health in low-income communities or communities of
color due to contaminants in their drinking water.
When EPA adopts regulations for contaminants in public water systems, the agency i
required under Section 1412(b)(3)(B) to present information on public health effects in
is
a manner
203
-------
that is "comprehensive, informative, and understandable." 42 U.S.C. § 300g-l(b)(3)(B). In the
documents that EPA makes available to the public in support of national drinking water regulations,
the agency must to the extent practicable specify: (1) each population addressed by any estimate of
public health effects, (2) the expected risk for the specific populations, (3) each appropriate upper or
lower-bound estimate of risk, (4) each significant uncertainty identified in assessing the public health
effects and studies that would help resolve the uncertainties, and (5) peer-reviewed studies that are
directly relevant to or support or fail to support any estimate of public health effects. Id.
When read together with later paragraphs of Section 1412 (discussed below), the term
"population" refers to groups or subpopulations within the general population that are likely to be at
greater risk than the general population. Thus, if communities of color or low-income communities
are likely to be at greater risk from certain pollutants than the general public, this provision requires
EPA to provide information about those risks. In light of the mandate to provide the information
in an "understandable" way, EPA has broad discretion to make sure that this information is
disseminated in a way that is meaningful to the affected communities.
2. Cost/Benefit Analyses
Section 1412(b)(3)(C) requires EPA to use cost/benefit analyses when proposing a national
primary drinking water regulation. 42 U.S.C. § 300g-l(b)(3)(C). An unusual provision, however,
requires those analyses to consider the health risks to groups that are likely to be at greater risk than
the general population. Any proposal for a primary drinking water regulation that includes an MCL
must publish, seek public comment on, and use analyses of, among other things, "the effects of the
contaminant on the general population and on groups within the general population such as infants,
children, pregnant women, the elderly, individuals with a history of serious illness, or other
sabpopulations that are identified as likely to be at greater risk of adverse health effects due to exposure to
contaminants in drinking water than the general population" 42 U.S.C. § 300g-l(b)(3)(C)(i) (emphasis
added). Proposals for primary drinking water regulations that include treatment techniques in place
of MCLs must also include analyses of the health risk reduction benefits and costs likely to result
from compliance with the treatment technique, taking the above factors into account. 42 U.S.C. §
300g-l(b)(3)(C)(ii).
Therefore, for each EPA regulation setting a standard for a contaminant in public water
systems, the agency is required to study, publish, seek comment on, and consider the effects of the
contaminant on the health of groups that are likely to face greater risks than the general public.
EPA can further environmental justice by specifically considering the adverse health effects of
contaminants on low-income communities or communities of color when proposing MCLs.
In addition to being required to "use" the above analyses, when proposing a primary
drinking water regulation EPA is required by Section 1412(b)(4)(C) to publish a determination that
the benefits of the MCL justify or do not justify the costs based on the above analyses. 42 U.S.C. §
300g-l(b)(4)(C). If EPA determines that the benefits do not justify the costs, then the agency is
authorized to promulgate an MCL that maximizes the health risk reduction benefits at a cost that is
justified by the benefits. 42 U.S.C. § 300g-l(b)(6)(A). This provision authorizes EPA to establish
MCLs that protect health to a lesser degree than would be required by this section if the benefits do
not "justify the costs of complying with the level."
204
-------
The Act's requirement to consider the effects of a contaminant on subpopulations allows
EPA to incorporate specifically the environmental and health benefits to communities of color and
low-income communities in considering whether the benefits of a more protective level justify the
costs of compliance. EPA can promote environmental justice by assuring that these benefits are
fully considered.
3. Variances
a. Variance technologies
Section 1412(b)(15) requires EPA to issue guidance describing the best treatment
technologies, treatment techniques, or other means ("variance technologies") for each contaminant
for which it issues a primary drinking water regulation, at the same time that it promulgates the
regulation. 42 U.S.C. § 300g-l (b)(15)(A). EPA must find, after consulting with the states, that the
technologies are available, effective under field conditions, and affordable for public water systems
of varying sizes. If, considering the quality of the source water, no treatment technology is included
in the agency's list of technologies for small systems, EPA also must identify variance technologies
for systems serving populations of: 1) 10,000 or fewer but more than 3,300; 2) 3,300 or fewer but
more than 500; and 3) 500 or fewer but more than 25. Id.
These variance technologies are allowed to not achieve compliance with the MCL or
treatment technique required by the regulation, but must achieve the maximum reduction in the
contaminant that is affordable considering the size of the system. Id. However, no variance
technology may be identified unless it "is protective of public health." 42 U.S.C. § 300g-l(b)(15)(B)
(emphasis added). Thus, the Act raises environmental justice concerns because it potentially allows
variances from health-based MCL standards in those communities that cannot afford to further
reduce contaminant levels. EPA can address this concern through its strict implementation of the
requirement that any variance technology be "protective of public health." Additionally, this
requirement gives EPA authority to identify and consider fully any potential health impacts on small,
low-income communities connected with use of the technology — for example, impacts of drinking
water contaminants on populations that are more likely to suffer from poor nutrition and other
health-related conditions, and to have limited access to health care.
b. Variances from primary drinking -water regulations
for small systems
As discussed below in Part IV, some states have primary responsibility for enforcing SDWA
requirements for public water systems. Section 1415(e) establishes the requirements for such states
to grant variances from MCLs and treatment techniques to systems that serve fewer than 10,000
persons. 42 U.S.C. § 300g-4(e). Variances under this section use the variance technologies
described by EPA under Section 1412(b)(15), and are available to a small system only if it cannot
afford to comply with a primary drinking water regulation and the state or EPA (whichever is
applicable) determines that the terms of the variance ensure "adequate protection of human health" 42
U.S.C. § 300g-4(e)(2)&(3) (emphasis added). The statute thus mandates that even small public water
systems serving fewer than 10,000 persons must at a minimum protect public health.
205
-------
EPA must separately approve any variance proposed by a state for a system that serves more
than 3,300 but fewer than 10,000 persons. Therefore, EPA can further environmental justice by
using its oversight role to ensure that variances are not issued to small systems serving low-income
communities or communities of color if the variance would not assure the protection of public
health.
Section 1415(e) (10) (A) also authorizes EPA to "review and object to any variance proposed
to be granted by a State" to a small water system if the objection is made within 90 days of the
proposal. 42 U.S.C. § 300g-4(e)(10)(A). If it objects to the variance, EPA is required to propose
modifications to resolve its concerns and the state is required to either adopt the modifications or
explain its reasons for not doing so. EPA also is authorized to overturn a variance if the state does
not resolve the concerns and EPA determines that the state did not comply with the statute. Id.
Moreover, any person served by a system for which a variance has been proposed may petition EPA
to object to the variance, and EPA is required to respond and decide whether to object within the
90-day period. 42 U.S.C. § 300g-4(e)(10)(B).
This section of the Act provides EPA with authority to promote environmental justice by
objecting to any variance proposed by a state that would not protect the health of the affected
community. The citizen petition provision is an important mechanism for ensuring that EPA
reviews variances that raise environmental justice concerns.
SDWA Section 1415 (e)(8) (A) requires EPA to "periodically review the program of each
State that has primary enforcement responsibility for public water systems . . .with respect to
variances to determine whether the variances granted by the state comply with the requirements of
this subsection" 42 U.S.C. § 300g-4(e)(8)(A) (emphasis added). This statutory authorization for EPA
to review state-issued variances is limited to variances for small systems. If EPA determines that
variances granted by a state to small systems do not comply with the requirements of the provision
and the affordability criteria established by the state, it must notify the state of the deficiencies and
make its determination public. 42 U.S.C. § 300g-4(e)(8)(B); see also 40 C.F.R. § 142.313(b). EPA
can further environmental justice by implementing this provision to oversee state programs to
ensure that variances issued by states to small public water systems protect the health of low-income
communities and communities of color.
c. Variances from primary drinking water regulations generally
In general, SDWA Section 1415 (a) (1) authorizes states with primary enforcement
responsibility to grant variances from national primary drinking water regulations under specific
circumstances if the state follows procedures including providing notice and opportunity for public
hearing on the proposed variance. 42 U.S.C. § 300g-4(a)(l). A variance is allowed where a public
water system cannot meet the MCL due to the characteristics of the raw water sources that are
reasonably available to the system. 42 U.S.C. § 300g-4(a)(l)(A).
A state may issue a variance to a public water system on condition that it install the best
technology, treatment techniques, or other means that EPA finds are available taking costs into
consideration, but the state must first find that the variance "will not result in an unreasonable risk to
health" Id. (emphasis added). A state also may issue a variance from a required treatment technique
206
-------
for a contaminant if a system shows that such treatment technique "is not necessary to protect the health of
persons because of the nature of the raw water source of such system." 42 U.S.C. § 300g-4(a)(l)(B).
The same standards for issuing variances apply to EPA. 42 U.S.C. § 300g-4(a)(2)&(3). In states
where EPA has primary enforcement responsibility, the Act again provides EPA with authority to
fully evaluate the potential health effects associated with the variance and to ensure that the resulting
standard or treatment technique will protect the health of low-income communities and
communities of color in accordance with the Act.
Where states have primary enforcement responsibility, SDWA provides a check on the
broad authority to grant variances from the standards protecting human health. Section
1415(a)(l)(F) requires EPA to conduct a "comprehensive review of the variances granted ... by the
States" beginning 18 months after the effective date of interim national primary drinking water
regulations and then as necessary, but at least within three years following the previous review. 42
U.S.C. § 300g-4(a)(l)(F). The review of state-issued variances is subject to procedural requirements
including publishing notice in the Federal Register and allowing for public comment. Id. If EPA
finds that a state has abused its discretion in granting variances in a substantial number of instances,
EPA may, after notifying the state and holding a public hearing, revoke specific variances or
prescribe revised schedules for specific public water systems. 42 U.S.C. § 300g-4(a)(l)(G). EPA
thus has authority to ensure that states have not.issued variances that pose an unreasonable risk to
the health of communities of color and low-income communities, as required by the Act.
Moreover, the Act's requirement for public comment during the variance review process provides a
potentially significant mechanism for EPA to identify and address environmental justice issues.
4. Exemptions
Section 1416 authorizes a state to exempt any public water system in that state from any
MCL or treatment technique if it finds that:
(1) due to compelling factors . . . [the system] is unable to comply ... or ... to
develop an alternative source of water supply, (2) [the system] was in operation on
the effective date of such . . . requirement, or, for a system that was not in operation .
by that date, only if no reasonable alternative source of drinking water is available to
such new system, (3) the granting of the exemption mil not result in an unreasonable risk'
to health, and (4) management or restructuring changes (or both) cannot reasonably
be made that will result in compliance ... or, if compliance cannot be achieved,
improve the quality of the drinking water.
42 U.S.C. § 300g-5(a) (emphasis added).
The "compelling factors" may include economic factors, such as the fact that the system
serves a "disadvantagedcommunity". 42 U.S.C. § 300g-5(a)(l) (emphasis added). A "disadvantaged
community" is one that is eligible for loan forgiveness under Section 1452(d), as described below.
Whenever a state grants an exemption, it must also prescribe, after notice and opportunity for a
public hearing, a schedule for the system to comply and interim control measures as determined by
the state. 42 U.S.C. § 300g-5(b)(l). The same standards and procedures for granting exemptions
207
-------
apply to EPA if a state does not have primary enforcement responsibility for public water systems.
42"U.S.C. §300g-5(f).
This section allows a state or EPA to exempt any system from the basic standards protecting
public health, subject to the fallback standard that the exemption not result in, an unreasonable risk
to health. The exemption authority itself raises environmental justice concerns that exemptions will
be granted that result in lower standards being applied to low-income communities or communities
of color. EPA has authority under the Act to address these concerns by applying a higher standard
of assuring protection of human health when it grants exemptions rather than granting them if they
"will not result in an unreasonable risk to health." EPA also can address environmental justice
concerns when it does grant exemptions in "disadvantaged communities," other low-income
communities, and communities of color by prescribing strict schedules for compliance and other
measures to protect public health in the interim.
As a check on this broad authority to states to exempt systems from the standards protecting
human health, Section 1416(d) requires EPA to conduct a "comprehensive review of the
exemptions granted .. .by the States" beginning 18 months after the effective date of interim
national primary drinking water regulations and then as necessary, but at least within three years
following the previous review. 42 U.S.C. § 300g-5(d)(l). The review of state-issued exemptions is
subject to the same procedural requirements as EPA review of state-issued variances under Section
1415(a), and EPA has promulgated a single set of regulations governing reviews of both variances
and exemptions. 40 C.F.R. §§ 142.22-142.24. EPA can promote environmental justice by
implementing these exemption oversight procedures to assure that states do not exempt public
water systems that serve communities of color and low-income communities from regulations in a
manner that subjects those communities to greater risks of adverse health effects than the general
population.
B. Protection of Underground Sources of Drinking Water
SDWA Sections 1421 through 1429 address protection of underground sources of drinking
water. The Act is oriented toward state implementation of programs to control underground
injection of contaminants, requiring EPA to promulgate regulations for such state programs. 42
U.S.C. § 300h (a)(l). Those regulations must include "minimum requirements for effective
programs to prevent underground injection which endangers drinking water sources" 42 U.S.C. § 300h (b)(l)
(emphasis added). Section 1421(d)(2) provides that underground injection endangers drinking
water sources if it "may result'in the presence in underground water which supplies or can reasonably
be expected to supply any public water system of any contaminant, and if the presence of such
contaminant may result in such system's not complying with any national primary drinking water regulation or may
otherwise adversely affect the health of persons" 42 U.S. C. § 300h(d)(2) (emphasis added).
Thus, EPA is charged with setting the minimum standards for states to meet in order for
their programs to prevent underground injection that (1) may result in contaminants being present
in underground water that may cause a public water system that uses that water to violate a national
primary drinking water regulation or (2) may adversely affect the health of people who use that
water. EPA regulations reiterate this standard, stating that no underground injection activity may be
carried out
208
-------
in a manner that allows the movement of fluid containing any contaminant into
underground sources of drinking water, if the presence of that contaminant may cause a
violation of any primary drinking water regulation.. .or may otherwise adversely affect the health of
persons. The applicant for a permit shall have the burden of showing that the requirements of
this paragraph are met.
40 C.F.R. § 144.12 (emphasis added). The regulations create five classes of underground injection
wells, which are each subject to regulation depending on their potential to endanger sources of
drinking water. 40 C.F.R. §
The standard set out in the Act and the regulations provides EPA with broad authority to
adopt regulations designed to ensure that state programs do not allow underground injection that
may result in adverse effects on human health in communities of color and low-income
communities. For example, the regulations could include provisions aimed at addressing situations
in which underground injection wells might contribute to cumulative health effects from multiple
sources of hazardous substances.
III. PERMITTING AND OTHER APPROVALS
The only permitting program created by the SDWA is the underground injection control
(UIC) program. Section 1421(b)(l) provides that the regulations governing state programs must
prohibit any underground injection in a state after the date a UIC program becomes effective in that
state unless that injection is authorized by a permit. 42 U.S.C. § 300h (b)(l)(A). EPA also may
allow states to authorize underground injection by rule. Id. The permit applicant must satisfy the
state that the injection will not endanger drinking water sources. 42 U.S.C. § 300h (b)(l)(B).
Similarly, no authorization by rule may allow any injection that endangers drinking water sources.
Id.
Unlike some other federal environmental .statutes, the SDWA provides no authority for EPA
to review, comment, or object to state-issued UIC permits. However, under Section 1422(c), EPA
may issue UIC permits in a state that has not received approval of its UIC program (or part of its
program), or not submitted a UIC program (or part of a program). 42 U.S.C. § 300h-(c). EPA
regulations apply the same requirements to UIC programs whether implemented by a state or EPA.
40 C.F.R. § 144.1(b)(2)&(f). EPA thus has an opportunity in its own permitting decisions to ensure
that concerns about health impacts on communities of color and low-income communities are
addressed.
The Environmental Appeals Board (EAB) considered environmental justice claims in one
challenge to a UIC permit approval decision by EPA. In re Envotech L.P., 6 E.A.D. 260 (Feb. 15,
1996). Local residents argued that the permits for two hazardous waste injection wells should be
denied under Executive Order 12898 because the area surrounding the site was already host to a
number of other burdensome land uses. Id. at 276. The residents raised a variety of reasons for
denying the permit, including the company's compliance history, strong community opposition, and
errors in technical assessments underlying the issuance of the permit. Id. at 283-299.
209
-------
The EAB rejected the challenge to the permit, rinding that "the agency has no authority to
deny or condition a permit where the permittee has demonstrated full compliance with the federal
regulatory standards for issuance of the permit." Id. at 280. However, the EAB interpreted the UIC
scheme as including two areas under which EPA could implement the Executive Order. In this
respect, Envotech followed closely an earlier EAB decision, In re Chemical Waste Management of Indiana,
Inc., 6 EAD 66 (EAB 1995), which considered application of the Executive Order in the issuance of
a RCRA permit. In Envotech, the EAB found that the first area for implementing the Executive
Order was in providing an opportunity for public participation in permit decisions:
We therefore hold that if a Region has a basis to believe that a proposed
underground injection well may somehow pose a disproportionately adverse effect
on the drinking water of a minority or low-income population, the Region should as
a matter of policy, exercise its discretion to assure early and ongoing opportunities
for public involvement in the permitting process.
Id. at281.
Second, the EAB referred to the "omnibus authority" contained in EPA regulations that
direct EPA to "impose, on a case-by-case basis such additional conditions as are necessary to
prevent the migration of fluids into underground sources of drinking water." 40 C.F.R. § 144.52
(a)(9). The Board found that under this provision, EPA could exercise its discretion to include in its
assessment of the proposed well, an analysis focusing on whether the well threatens the health of
communities of color or low-income communities. Envotech at 282. In rejecting the residents'
challenge to the permit, the Board determined that EPA had taken adequate steps to ensure public
participation and to analyze the impacts of the wells on affected communities.
Previous commentators have suggested that the EAB's decision in Envotech shows its
"willingness to find that the Agency can ground discretionary authority to promote environmental
justice in the Agency's regulations." Richard Lazarus & Stephanie Tai, Integrating Environmental Justice
into EPA PerrmttingAuthority, 26 ECOLOGY L.Q. 617 (1999) at 667. These commentators further
argue that the EAB's decision opens the possibility that similar omnibus authority can be found in
other statutes and regulations because the regulatory language relied on by the Board was general.
Id. at 668. In the context of the Safe Drinking Water Act, Envotech demonstrates that EPA has
considerable discretion to address adverse health impacts on communities of color and low-income
communities in implementing its statutory and regulatory authority.
IV. DELEGATION OF PROGRAMS TO STATES AND TRIBES
Like other federal environmental statutes, the Safe Drinking Water Act provides for states to
take over primary responsibility for implementing and enforcing the Act's requirements. SDWA
Section 1451 authorizes EPA to "treat Indian Tribes as States" under the Act, including delegating
to Tribes primary enforcement authority for either SDWA program. 42 U.S.C. § 300J-11. As
discussed in Part II, states or Tribes with primary enforcement responsibility are authorized to issue
variances under certain circumstances; nevertheless, SDWA provides EPA with oversight authorities
to ensure that state-issued variances comply with the Act.
210
-------
A. Public Water Systems
Section 1413 (a) provides that a state has "primary enforcement responsibility for public
water systems during any period for which" EPA determines that the state:
• has adopted drinking water regulations that are no less stringent than the national
primary drinking water regulations;
• has adopted, and is implementing, adequate procedures for the enforcement of such
state regulations, including monitoring and inspections;
• will keep records and make reports on its activities as required by EPA;
• if it permits variances or exemptions, does so under conditions and in a manner that
is not less stringent than provided by the Act;
• has adopted and can implement an adequate plan for providing safe drinking water
in an emergency; and
• has adopted authority for administrative penalties (unless the constitution of the state
prohibits this) in a maximum amount not less than $1,000 per day per violation for a
system serving more than 10,000 people, and, for any other system, that is adequate
to ensure compliance as determined by the state.
42 U.S.C. § 300g-2(a).
, Under Section 1413(b)(l), EPA is required to promulgate regulations establishing
procedures for states to apply for a determination that the first four requirements are met, including
providing an opportunity for a public hearing. 42 U.S.C. § 300g-2(b)(l). Section 1413(a)(2)
requires states with primary enforcement responsibility to adopt and implement adequate
procedures for enforcing the state's drinking water regulations, including conducting monitoring and
making inspections as required by EPA's regulations. 42 U.S.C. § 300g-2(a)(2).
The U.S. Court of Appeals for the D.C. Circuit has held that Section 1413(a) envisioned that
EPA also is authorized to monitor a state's implementation of its primary enforcement
responsibility. National Wildlife Federation v. EPA, 980 F.2d 765, 771 (D.C. Ck. 1992). Although
EPA retains substantial discretion in making the determination that a state meets or does not meet
the criteria, the court held that Section 1413 (a) requires EPA to withdraw a state's primary
enforcement responsibility once the agency determines the state no longer meets the criteria. Id. at
767-68,771.
EPA thus has authority to review the key aspects of a state's public water system program—
for example, its standard setting, monitoring, inspection, and enforcement activities, as well as its
approval of variances — to ensure that the state is implementing its program in a manner that
protects the health of communities of color and low-income communities, as well as other
211
-------
communities. Moreover, EPA has authority under Section 1412 to require the states to maintain
records and submit reports that will facilitate EPA oversight.
B. Protection of Drinking Water Sources
1. Underground Injection Control
The structure of the SDWA suggests that Congress had a particularly strong intention that
the UIC program be administered by the states. The first section in this part of the Act, Section
1421(a), requires EPA to promulgate regulations for state UIC programs. 42 U.S.C. § 300h(a). EPA
also was required to list the states that the agency determined might need a UIC program. 42 U.S.C.
§ 300h-l(a); see 40 C.F.R. § 144.1(e) (noting that EPA listed all of the states). Further, the statute
seems to require states to apply for approval of a UIC program if EPA determines they need one, as
it provides that each listed state "shall .. .submit to the Administrator an application." 42 U.S.C. §
300h-l(b)(l)(A) (emphasis added). Section 1422(c) provides EPA residual authority to implement a
UIC program in a state if EPA disapproves the state's program, if EPA determines the state no
longer meets the requirements for an approved program, or if the state does not submit a program.
42U.S.C. §300h-l(c).
Pursuant to Section 1422(b), a state's application must show that the state "has adopted
after reasonable notice and public hearings, and will implement, an underground injection control
program [that meets the requirements of EPA's regulations for state programs]; and will keep such
records and make such reports with respect to its activities under [this program] as the
Administrator may require." 42 U.S.C. § 300h-l(b)(l)(A). If a state's UIC program is approved, it
has "primary enforcement responsibility for underground water sources until such time as the
Administrator determines, by rule, that such State no longer meets the requirements [for approval of
the program]." 42 U.S.C. § 300h-l(b)(3).
EPA has promulgated regulations that list some of the circumstances of non-compliance in
which the agency may withdraw state UIC approval. These include failure of the state UIC program
to:
• issue permits or repeated issuance of permits that do not conform to the
requirements of the regulations;
• comply with the public participation requirements of the regulations;
• act on violations of permits or other program requirements;
• ' seek adequate enforcement penalties or to collect administrative fines when imposed;
and
• inspect and monitor activities subject to regulation.
40 C.F.R. § 145.33. The regulations set forth the minimum required elements for these and other
program functions. See 40 C.F.R. Part 144. Thus, the statute and the regulations provide EPA with
212
-------
-------
State wellhead protection programs provide an important vehicle for protecting
underground sources of drinking water by preventing pollution and by controlling contaminants that
threaten water supplies. EPA has approved all but two state programs, and the agency notes that
the programs vary widely. U.S. EPA Office of Water, Summary of State Biennial Reports of
Wellhead Protection Program Progress, at
http://www.epa.gov/safewater/protect/gwr/biennial.html (last modified Nov. 2, 2000). While the
Act does not mandate the content of these state programs, EPA has a role to play in providing
guidance and technical support to states and local governments in carrying out their programs. EPA
can promote environmental justice by targeting this assistance to, for example, state and local efforts
to control contaminants affecting the drinking water supplies of communities of color and low-
income communities. EPA also can further such efforts through its financial assistance programs,
discussed in Part VII, below.
3. Source Water Quality Assessment
SDWA Section 1453 requires EPA to develop guidance for states with primary enforcement
responsibility to carry out a source water assessment program. 42 U.S.C. § 300J-13. The purpose of
such programs is to identify areas that supply drinking water within the state and determine the
extent to which the public water systems in those delinked areas are susceptible to contaminants.
42 U.S.C. § 300j-13(a)(2). The Act requires states to submit their programs to EPA for approval. 42
U.S.C. § 300j-13(a)(3). The Act also requires, "to the maximum extent possible," that states
establish technical and citizens' advisory committees and other procedures "to encourage the public
to participate in developing" the program. 42 U.S.C. § 300h-7(b). EPA published its guidance in
1997 and has approved programs for all states, as well as Puerto Rico and the District of Columbia.
See U.S. EPA Office of Water, Source Water Assessment Program, available at
http://www.epa.gov/safewater/protect/swap.html (last modified July 23, 2001).
The state source water assessment programs provide an important mechanism for
identifying and addressing pollutants that threaten drinking water supplies in low-income
communities and communities of color — for example, through detailed delineation of the areas that
contribute to contamination and full consideration of potential sources of contamination.
Participation in the programs by residents of affected communities can help ensure that relevant
information is incorporated into the assessments. While EPA has already approved state programs,
the agency can advance environmental justice goals by continuing to provide guidance and
assistance to states and to citizens to ensure that the assessments identify significant threats to
drinking water systems serving communities of color and low-income communities.
4. Sole Source Aquifer Protection
SDWA Section 1424(e) provides that: "If the Administrator determines, on his own
initiative or upon petition, that an area has an aquifer which is the sole or principal drinking water
source for the area and which, if contaminated, would create a significant hazard to public health, he
shall publish notice of that determination in the Federal Register." 42 U.S. C. § 300h-3(e). Once an
aquifer is so designated, no federal financial assistance may be provided for any project which EPA
determines may contaminate the aquifer through a recharge zone, thereby creating a "significant
hazard to public health." Id. The sole source aquifer designation thus provides a potentially
214
-------
ample authority to ensure generally that all state UIC programs are implemented consistently with
federal standards, and to review individual programs to address concerns about protection of public
health in communities of color and low-income communities.
In addition, EPA is required to approve, disapprove, or approve in part and disapprove in
part the state's UIC program after "reasonable opportunity for presentation of views" and within ninety days
after the state submits its application. 42 U.S.C. § 300h(b)(2) (emphasis added). The wording of this
requirement is unusual, and presumably intended to mean something other than the typical
requirement of public notice and opportunity for comment. The same provision also specifies that
EPA make this decision "by rule," and a later section requires the agency to provide an opportunity
for a public hearing on the decision to approve or disapprove a state UIC program. 42 U.S.C. §
300h(b)(2)&(4). This section provides EPA broad authority to seek and consider views and
comments regarding environmental justice issues when EPA is deciding whether to approve a state's
program.
2. Wellhead Protection Program
Under SDWA Section 1428, states are required to submit to EPA for approval a program to
protect wellhead areas from contaminants that might adversely affect human health. 42 U.S.C. §
300h-7(a). The Act defines "wellhead protection area" as "the surface and subsurface area
surrounding a water well or wellfield, supplying a public water system, through which contaminants
are reasonably likely to move toward and reach such water well or wellfield." 42 U.S.C. § 300h-7(e).
The Act sets out the minimum requirements for state programs, including:
• specifying the responsibilities of state and local governments, as well as public water
supply systems, in developing and carrying out wellhead protection programs;
• determining the wellhead protection area for each wellhead;
• identifying all potential man-made sources of contaminants within each wellhead
protection area that may adversely affect human health;
• establishing appropriate measures (such as technical and financial assistance,
education, control measures, and demonstration projects) to protect the water supply
within wellhead protection areas from contaminants;
• developing contingency plans for providing alternate drinking water supplies in the
event of well or wellfield contamination; and
• establishing a requirement to consider all potential sources of contaminants within
the expected wellhead area of a new water well serving a public water supply system.
42 U.S.C. § 300h-7(a). SDWA further directs states, to "make every reasonable effort to implement
the State wellhead area protection program" within two years of submitting the program to EPA,
and to submit to EPA a biennial status report describing progress in implementing the program. 42
U.S.C. § 300h-7(g).
213
-------
State wellhead protection programs provide an important vehicle for protecting
underground sources of drinking water by preventing pollution and by controlling contaminants that
threaten water supplies. EPA has approved all but two state programs, and the agency notes that
the programs vary widely. U.S. EPA Office of Water, Summary of State Biennial Reports of
Wellhead Protection Program Progress, at
http://www.epa.gov/safewater/protect/gwr/biennial.html (last modified Nov. 2, 2000). While the
Act does not mandate the content of these state programs, EPA has a role to play in providing
guidance and technical support to states and local governments in carrying out their programs. EPA
can promote environmental justice by targeting this assistance to, for example, state and local efforts
to control contaminants affecting the drinking water supplies of communities of color and low-
income communities. EPA also can further such efforts through its financial assistance programs,
discussed in Part VII, below.
3. Source Water Quality Assessment
SDWA Section 1453 requires EPA to develop guidance for states with primary enforcement
responsibility to carry out a source water assessment program. 42 U.S.C. § 300J-13. The purpose of
such programs is to identify areas that supply drinking water within the state and determine the
extent to which the public water systems in those delin%ted areas are susceptible to contaminants.
42 U.S.C. § 300j-13(a)(2). The Act requires states to submit their programs to EPA for approval. 42
U.S.C. § 300j-13(a)(3). The Act also requires, "to the maximum extent possible," that states
establish technical and citizens' advisory committees and other procedures "to encourage the public
to participate in developing" the program. 42 U.S.C. § 300h-7(b). EPA published its guidance in
1997 and has approved programs for all states, as well as Puerto Rico and the District of Columbia.
See U.S. EPA Office of Water, Source Water Assessment Program, available at
http://www.epa.gov/safewater/protect/swap.html (last modified July 23, 2001)'.
The state source water assessment programs provide an important mechanism for
identifying and addressing pollutants that threaten drinking water supplies in low-income
communities and communities of color — for example, through detailed delineation of the areas that
contribute to contamination and full consideration of potential sources of contamination.
Participation in the programs by residents of affected communities can help ensure that relevant
information is incorporated into the assessments. While EPA has already approved state programs,
the agency can advance environmental justice goals by continuing to provide guidance and
assistance to states and to citizens to ensure that the assessments identify significant threats to
drinking water systems serving communities of color and low-income communities.
4. Sole Source Aquifer Protection
SDWA Section 1424(e) provides that: "If the Administrator determines, on his own
initiative or upon petition, that an area has an aquifer which is the sole or principal drinking water
source for the area and which, if contaminated, would create a significant hazard to public health, he
shall publish notice of that determination in the Federal Register." 42 U.S. C. § 300h-3(e). Once an
aquifer is so designated, no federal financial assistance may be provided for any project which EPA
determines may contaminate the aquifer through a recharge zone, thereby creating a "significant
hazard to public health." Id. The sole source aquifer designation thus provides a potentially
214
-------
powerful tool for EPA to protect critical drinking water sources. EPA can facilitate community
input into both the designation process and the subsequent review of federally assisted projects in
designated areas.
V. ENFORCEMENT
The Safe Drinking Water Act is based on the presumption that states will have primary
enforcement responsibility for public water systems and for underground injection control. The
federal government nevertheless exercises an important role as a backstop to state enforcement. In
addition, EPA is authorized to take direct enforcement action in states that do not have primary
enforcement responsibility for public water systems or for underground injection control. For a
fuller discussion of statutory enforcement authorities for promoting environmental justice, see
Chapter 5.
A. Public Water Systems
SDWA Section 1414 authorizes EPA to issue orders or to bring a civil action in federal
district court to compel compliance with any requirement of the public water systems program after
meeting certain notification requirements. In a state that has primary enforcement responsibility,
EPA must notify the state and die noncomplying public water system whenever it finds that a
system is not in compliance with a requirement. If the state does not begin appropriate enforcement
action within 30 days of the notice, EPA is required to issue an order or bring a civil action
compelling the system to comply. 42 U.S.C. § 300g-3(a)(l)(B). In a state that does not have primary
enforcement responsibility, EPA is required to notify "an appropriate local elected official, if any,
with jurisdiction over the public water system" prior to taking enforcement action. 42 U.S.C. §
300g-3(a)(2)(B).
B. Underground Injection Control
SDWA Section 1423(a) provides EPA with similar enforcement authority for protection of
underground sources of drinking water as is provided for public water systems. 42 U.S.C. § 300h- •
2(a). In addition to these civil enforcement provisions, a person who wilfully violates a UIC
requirement or order may be imprisoned for not more than three years and fined under federal
criminal sanction authority. 42 U.S.C. § 300h-2(b). EPA also is authorized under Section 1423(c)
to issue administrative orders and assess civil penalties of not more than $10,000 per day of
violation. 42 U.S.C. § 300h-2(c). -
C. Citizen Suits
The SDWA has a relatively broad citizen suit provision. Section 1449(a) authorizes any
person to bring an action against any other person, including the United States, who is alleged to be
in violation of any requirement under the Act. 42 U.S.C. § 300j-8(a). Such citizen suits are subject
to requirements of 'prior notice to the EPA, the alleged violator, and to the state in which the .
violation occurs. 42 U.S.C. § 300J-8 (b).
215
-------
VI. INFORMATION GATHERING (RESEARCH, MONITORING,
AND REPORTING)
The Safe Drinking Water Act has extensive information and reporting requirements,
particularly under the Public Water System program. Additionally, the statute's general provisions
include several that authorize research, studies, and information collection and dissemination.
A, Monitoring
SDWA Section 1445 includes several general record-keeping, monitoring, and reporting
requirements. First, "every person who is subject to any requirement of [the SDWA] or who is a grantee,
shall establish and maintain such records, make such reports, conduct such monitoring, and provide
such information as the Administrator may reasonably require." 42 U.S.C. § 300j-4(a)(l)(A)
(emphasis added). EPA may use the above information in rule-making, determining compliance,
administering financial assistance, "evaluating the health risks of unregulated contaminants, or in advising the
public of such risks." Id. (emphasis added). Thus, EPA has a powerful tool enabling it to gather
information that it could use to address environmental justice concerns, including violations in low-
income communities or communities of color and health risks of unregulated contaminants in those
communities, and informing community residents about risks from contaminants in their public
water system.
Section 1445 (a) (2) also requires EPA to promulgate regulations establishing criteria for
monitoring programs that public water systems must implement for unregulated contaminants,
varying the frequency and schedule based on the number of persons served, the source of supply,
and the contaminants likely to be found. 42 U.S.C. § 300j-4(a)(2)(A). EPA must ensure that such
monitoring is required only of a representative sampling of systems that serve 10,000 persons or
fewer. Id. The people served by a system that conducts monitoring under this section are required
to be notified of the availability of monitoring results. 42 U.S.C. § 300j-4(a)(2)(E). This section
provides EPA authority to require public water systems to monitor for contaminants that are not
regulated but that might cause health risks, including those that might cause greater risks in
communities of color and low-income communities.
In addition, under Section 1445 (g), EPA is required to establish a national database of the
occurrence of regulated and unregulated contaminants in public water systems as determined from
the required monitoring and from other reliable sources of information. 42 U.S.C. § 300j-4(g)(l).
EPA is required to use the data in determining whether a contaminant occurs in drinking water at a
level of public concern, which would require EPA to promulgate a national primary drinking water
regulation under Section 1412(b)(l). 42 U.S.C. § 300j-4(g)(3). The information in the database must
be available to the public in readily accessible form. 42 U.S.C. § 300j-4(g)(5). This database could
allow EPA to collect and analyze information about contaminants of concern to communities of
color and low-income communities and to determine whether those contaminants should be
regulated under the SDWA.
216
-------
B. Repotting
Section 1414(c)(4)(A) requires community water systems to mail to each customer of the
system at least annually a report on the level of contaminants in the drinking water supplied by the
system. 42 U.S.C. § 300g-3(c)(4)(A). A community water system is defined as any public water
system that serves at least 15 service connections used by year-round residents or regularly serves at
least 25 year-round residents. 42 U.S.C. § 300f(15). The contents of this report, called a "consumer
confidence report," are to be established by EPA by regulation after consultation with public water •
systems, environmental groups, public interest groups, risk communication experts, the states, and
other interested parties. 42 U.S.C. § 300g-3(c)(4)(A). The consumer confidence reports must
contain:
• information about .the source of the water supplied by the system;
• plain language definitions of MCL, MCLG, variance, and exemption, as
provided in the EPA regulations;
• if any regulated contaminant is detected in the water supplied by the system, the
MCLG, the MCL, the level of the contaminant in the water system, and, for any
contaminant for which there has been a violation of the MCL during that year, a
brief statement of the health concerns that resulted in regulation of that contaminant
as provided in the EPA regulations;
• information on compliance with primary drinking water regulations, and notice if the
system is operating under a variance or exemption and the basis on which it was
granted;
• information on the levels of unregulated contaminants for which monitoring is
required, including cryptosporidium and radon, where a state determines they may
be found; and
• a statement that the presence of contaminants in drinking water does not necessarily
indicate that the drinking water poses a health risk.
42 U.S.C. § 300g-3(c)(4)(B).
A brief, plainly worded explanation is also required of the contaminants that reasonably may
be expected to be present in drinking water, including bottled water. 42 U.S.C. § 300g-3(c)(4)(A).
Through its regulations governing the consumer confidence reports, EPA has an opportunity to
require virtually all public water systems to provide easily understood information to their users
about contaminants in their water, the risks from those contaminants, the compliance record of the
system, and whether it is subject to less stringent regulation due to a variance or exemption.
Through review and implementation of its regulations, EPA can ensure that this information, which
is important for assessing environmental justice concerns, is accessible to communities of color and
low-income communities, including having it translated so that every user can understand the
"plainly worded" information in their language.
217
-------
SDWA Section 1414(c) requires public water systems, states, and EPA to prepare and make
available to the public annual reports on any violations of the SDWA within their service areas or
jurisdictions. 42 U.S.C. §§ 300g-3(c)(2)(D)&(c)(3). In addition, Section 1414(c)(l) requires public
water systems to notify persons served by their system of failures to comply with requirements of a
national primary drinking water regulation, of variances and exemptions, and of the concentration of
any unregulated contaminant for which EPA has required public notice. 42 U.S.C. § 300g-3(c)(l).
Regulations establishing the manner, frequency, form, and content of these notices must
provide for different frequencies of notice based on whether the violations are intermittent or
infrequent or are continuous or frequent. These regulations also must "take into account the
seriousness of 'anypotential adverse health effectsthat may be involved." 42 U.S.C. § 300g-3(c)(2)(A)
(emphasis added). For each violation that has the potential to have serious adverse health effects as
a result of short-term exposure, notice must be distributed as soon as practicable after the violation
occurs, but not later than 24 hours after the occurrence, and provide a clear and readily
understandable explanation of the violation, the potential adverse effects on human health, the steps
the system is taking to correct the violation, and the necessity of seeking alternative water supplies
until the violation is corrected. 42 U.S.C. § 300g-3(c)(2)(C). The notice must be provided to the
head of the agency with primary enforcement responsibility in the state, and be provided to
appropriate broadcast media, be prominently published in a newspaper of general circulation serving
the area, or be provided by posting or door-to-door notification. Id.
According to Section 1414(c)(3), each state that has primary enforcement responsibility
must "prepare, make readily available to the public, and submit to the Administrator an annual report
on violations of national primary drinking water regulations by public water systems in the State."
42 U.S.C. § 300g-3(c)(3)(A) (emphasis added). EPA likewise is required to prepare and make
available to the public an annual report summarizing and evaluating the reports submitted by the
states and notices of violations submitted by public water systems serving Tribes, The agency's
report is to include recommendations about resources needed to improve compliance with public
water system requirements. 42 U.S.C. § 300g-3(c)(3)(B).
EPA can use reports submitted to it by the states to investigate and determine whether
communities of color and low-income communities are subject to greater risks than the general
population because the public water systems serving those communities are violating primary
drinking water regulations. These reports provide EPA with detailed information that it could use
to determine whether communities are being adversely affected by violations of drinking water
regulations. Finally, EPA could use its report to make recommendations about how to improve
compliance in communities of color and low-income communities, along with recommendations
applicable to the general population.
C.
Research
SDWA Section 1442(a) authorizes EPA to conduct research into various aspects of public
health and drinking water. 42 U.S.C. § 300j-l(a). EPA is authorized to "conduct research, studies,
and demonstrations relating to the causes, diagnoses, treatment, control, and prevention of physical
and mental diseases and other impairments of man [sic] resulting directly or indirectly from
contaminants in water, or to the provision of a dependably safe supply of drinking water." 42
218
-------
U.S.C. § 300j-l(a)(l). EPA also is authorized to collect and make available information about the
research, demonstrations, and recommendations on providing a dependably safe supply of drinking
water. 42 U.S.C. § 300j-l(a)(2)(A). EPA could use this broad research authority to investigate
environmental justice concerns with respect to contaminants in drinking water and to research and
demonstrate methods of preventing diseases caused by contaminants in drinking water that
adversely affect communities of color and low-income communities. This section also could be
used by EPA to enable it to demonstrate methods of providing safe drinking water in these
communities.
Section 1458 requires EPA to "conduct a continuing program of studies to identify groups
within the general population that may be at greater risk than the general population of adverse
health effects from exposure to contaminants in drinking water." 42 U.S.C. § 300j- 18(a)(l). In
these studies, the agency is required to examine "whether and to what degree ... subpapulations that can
be identified and characterised are likely to experience elevated health risks, including risks of cancer,
from contaminants in drinking water." Id. (emphasis added). In addition, EPA is required to
conduct biomedical studies of "the variations in the effects among humans [of contaminants],
especially subpopulations at Beater risk of adverse effects" 42 U.S.C. § 300j-18(b)(2) (emphasis added).
These biomedical studies are also required to "develop new approaches to the study of complex
mixtures, such as mixtures found in drinking water .. .to examine .. .susceptible individuals and
subpopulations." 42 U.S.C. § 300j-18(b)(3) (emphasis added).
These provisions mandate that EPA conduct research that specifically addresses
environmental justice concerns. These include identifying what groups may be at greater risk from
exposure to contaminants in drinking water, understanding the variations in effects among higher
risk groups, and studying the effect of mixtures of chemicals found in drinking water on susceptible
groups.
VII. FINANCIAL ASSISTANCE
SDWA Section 1443(a) authorizes EPA to make grants to states and Tribes to implement
public water system supervision programs, which include everything required for a state to have
primary enforcement responsibility except the provision of safe drinking water during emergencies.
To be eligible for a grant, a state must have both a public water system supervision program and
primary enforcement responsibility for public water systems, or expect to have both within one year
of the date of the grant. These restrictions do not apply to Tribes. 42 U.S.C. § 300j-2(a)(l)&(2).
EPA is required to allot funds appropriated for these grants each year among the states on the basis
of regulations that take into account population, geographical area, number of public water systems,
and "other relevant factors," with no state receiving less than one percent of the total. 42 U.S.C. §
300j-2(a)(4). The grants may cover as much as 75 percent of a state's costs for implementing its
public water system supervision program. 42 U.S.C. § 300j-2(a)(3). Given this broad statutory
language, a portion of these funds could be earmarked for addressing environmental justice issues,
and for grants to assist Tribes in implementing public water system programs..
Similarly, Section 1443(b) authorizes EPA to make grants to states to implement
underground water supply protection programs. A state is eligible for such a grant if it has primary
219
-------
enforcement responsibility, but this does not apply to Tribes. As with public water systems, EPA is
required to promulgate regulations for allotting appropriated funds among the states according to
population, geographical area, and other relevant factors, but a state is not guaranteed a minimum
amount under this section. These grants also may cover as much as 75 percent of a state's costs for
its underground water supply protection program. 42 U.S.C. § 300j-2(b)(3). EPA could require a
state to use a portion of its grant funds to address environmental justice issues. EPA also can
provide grants to Tribes to develop and implement UIC programs.
Section 1452 directs EPA to offer to enter into agreements with states to provide grants,
including letters of credit, to the states to capitalize revolving loan funds to further the health
protection objectives of the Act. 42 U.S.C. § 300j-12(a)(l)(A). In order to be eligible for a
capitalization grant, a state must establish a drinking water treatment revolving loan fund and keep it
separate from other grant funds. 42 U.S.C. § 300j-12(a)(l)(B). State revolving loan funds are
required to include loan repayments and interest, and are required to be used only for loans, loan
guarantees, security for leveraged loans, or other financial assistance authorized under-this section to
community water systems and non-profit, non-community water systems.
Public water systems are allowed to use the financial assistance provided under this section
only for types of expenditures that EPA has determined through guidance will facilitate compliance
with applicable national primary drinking water regulations or otherwise significantly further the
health protection objectives of the program. Fifteen percent of the amount credited to a state
revolving loan fund in any fiscal year is required to be available solely for loans to small public water
systems that regularly serve fewer than 10,000 persons. 42 U.S.C. § 300j-12(a)(2).
This provision authorizes EPA to exercise substantial discretion in establishing the rules and
guidelines states must follow in their loan programs using EPA grants, which EPA could use to
promote environmental justice in several ways. First, EPA could ask states to demonstrate how they
will use their loan funds to promote environmental justice as part of the initial agreement between
EPA and the state making the grant. Second, in its guidance about how state loans may be used,
EPA could make environmental justice one of the ways a state could meet the statutory standard to
significantly further the health objectives of the SDWA. In addition, EPA's guidance could deal
with the potential environmental justice issue that small systems are allowed to comply with national
primary drinking water regulations at later dates than larger systems. The specific requirement for
financial assistance to such systems could be used to address environmental justice concerns in
communities served by such systems, for example, by meeting MCLs before the date required under
the law.
Under SDWA Section 1452(d), a state is allowed to provide additional subsidies, including
forgiveness of the principal, when it makes a loan to a "disadvantaged community" or to a
community that the state expects to become disadvantaged as a result of a proposed project.
Disadvantaged communities are to be defined by the state based on affordability criteria after public
review and comment. 42 U.S.C. § 300j-12(d). This section allows states to focus a portion of their
capitalization grants on projects in low-income communities, with substantial discretion for states to
choose projects that address environmental justice concerns. EPA could use its guidance issued
under Section 1452(a)(2) to promote environmental justice by emphasizing to states the importance
of using their grant funds to provide additional financial assistance to disadvantaged communities.
220
-------
States are requited by Section 1452(b) to prepare a plan, after allowing public review and
comment, that identifies the intended uses of the state revolving loan fund. The plan must include a
list of the projects to be assisted, descriptions of the projects, the terms of assistance provided, the
sizes of the communities served by the projects, the criteria and methods for distributing funds, the
financial status of the fund, and the short- and long-term goals of the fund. Priority under the plan
must, to the maximum extent practicable, be given to projects that address the most serious risks to
human health, are necessary to ensure compliance with the requirements of the public water system
program, and assist systems most in need on a per-household basis according to state affordability
criteria. 42 U.S.C. § 300j-12(b). This section directs states to give priority to projects that address
the most serious health risks and to assist the most needy systems, both of which may correlate
closely with environmental justice issues. EPA can promote environmental justice by using its
authority to oversee use of federal grants, which provide the capital for state loan funds, to assure
that state plans assign appropriate priorities to projects in communities of color and low-income
communities.
Section 1452(i) authorizes EPA to set aside 1.5 percent of the annual appropriation for
capitalization grants for grants to "Indian Tribes and Alaska Native villages that have not otherwise
received grants from the Administrator under this section or assistance from State loan funds
established under this section." The grants may only be used for the types of expenditures
established by EPA for state revolving loan funds. 42 U.S.C. § 300j-12(i)(l). In addition, such
grants must be used "to address the most significant threats to public health associated with public
water systems that serve Indian Tribes, as determined by the Administrator in consultation with the
nii-^rfr.1- nf the Indian Health Service and Indian Tribes." 42 U.S.C. § 300i-12(i)(2).
Section 1456 authorizes EPA and other federal agencies to provide grants to the states of
Arizona, California, New Mexico, and Texas for assistance to low-income communities known as
colonias, which are located along the U.S.-Mexico border and lack a safe drinking water supply or
adequate facilities for providing safe drinking water. The grants are required to facilitate compliance
with national primary drinking water regulations or otherwise significantly further the health
protection objectives of the SDWA. The grants are also required to be used to provide assistance to
such communities where the "residents are subject to a significant health risk . . .attributable to the
lack of access to an adequate and affordable drinking water supply." 42 U.S.C. § 300J-16. This
section authorizes EPA and other federal agencies to provide grant funds, but does not set aside
particular amounts or portions of appropriations, to border states specifically to assist low-income,
communities of color with serious drinking water contamination problems.
221
-------
222
-------
CHAPTER 16
TOXIC SUBSTANCES CONTROL ACT ("TSCA")
15 U.S.C. «« 2601-2692
The Toxic Substances Control Act (TSCA) addresses the risks to health and the
environment from existing and new chemical substances. TSCA establishes a framework for
identifying potentially harmful chemical substances and regulating their use. This framework
includes a variety of regulatory tools, such as screening of new chemical substances, testing of
existing substances, and placing restrictions on activities involving substances that present
"unreasonable" health or environmental risks
Implementing the broad, prevention-oriented framework of TSCA has been a challenge in
light of the volume of manufactured chemicals akeady in use, the number of new chemicals entering
commerce, and the fairly complex process established in the Act for regulating those substances.
There are over 80,000 substances on EPA's inventory of chemicals manufactured or processed in
the United States. Through 1997, EPA had required testing of about 550 of these existing
chemicals. See U.S. EPA OFFICE OF POLLUTION PREVENTION AND TOXICS, FISCAL YEAR 1997
ANNUAL REPORT 31 (1998). Through 1998, the agency also had reviewed "pre-manufacture
notices" for over 31,000 new chemicalsubstances and had taken some form of regulatory action to
control risks for about ten percent of those. See U.S. EPA OFFICE OF POLLUTION PREVENTION
AND Toxics, STRATEGIC AGENDA-. 1999 - 2005 at 13 (Draft, August 1998).
These numbers underscore the fact that implementation of TSCA since its enactment in
1976 has involved setting priorities to address health and environmental risks. This chapter
discusses the potential for addressing environmental justice in establishing priorities in the principal
areas of regulatory authority under TSCA, including Subchapters II, III and IV, which address
asbestos, radon and lead, respectively. This discussion is intended to assist the public in future
examination of .the political, technical, legal and other context for taking action in any of the areas
outlined here. .
Part I of the chapter describes the policies and goals of TSCA that emphasize the. Act's
focus on protecting health and the environment, as well as certain authorities that can be used to
provide information and assistance to communities concerning chemical substances regulated under
the Act. Part II discusses authorities under TSCA to advance environmental justice through
regulation of existing chemical substances that pose an "unreasonable risk" to health or the
environment. Part II also addresses EPA's rule-making authorities with respect to polychlorinated
biphenyls (PCBs) and lead hazards specifically.
Part III of this chapter discusses opportunities for advancing environmental justice through
EPA's review of new chemicals or new uses of existing chemicals prior to their manufacture or use.
Although TSCA does not establish a general framework for authorizing state programs, Part IV
addresses EPA approval and oversight of state lead certification and lead hazard information
programs. EPA's enforcement authorities under TSCA are highlighted in Part V. Part VI discusses
223
-------
EPA's extensive authorities to gather information about chemical substances, including its authority
to promulgate regulations for the testing of existing chemicals. Finally, Part VII includes a number
of financial assistance programs authorized under TSCA that provide an opportunity for promoting
environmental justice goals.
I. GENERAL PROVISIONS
A. Policy and Goals of the Act
It is the stated policy of the Toxic Substances Control Act that there be "adequate authority"
to regulate chemical substances that present an "unreasonable risk of injury to health or the
environment." 15 U.S.C. § 2601 (b)(2). While this authority "should be exercised in such a manner
as not to impede unduly or create unnecessary economic barriers to technological innovation.," it is
clear that the "primary purpose" of the Act is to "assure that such innovation and commerce . . .does
not present an unreasonable risk of injury to health or the environment." 15 U.S.C. § 2601 (b) (3)
(emphasis added). While TSCA establishes specific requirements for the various regulatory actions
described in the Act, the statute's broad goal provides support for efforts to ensure that health and
environmental risks to communities of color and low-income communities are addressed in
implementing the Act.
TSCA Section 2(c) also states explicitly the intent of Congress that EPA "shall consider the
environmental, economic and social impact of any action" taken to implement the Act. 15 U.S.C. •
2601 (c) (emphasis added). The equitable distribution of environmental problems and benefits has
become an increasingly important social issue over the past several years. This provision provides
general support for EPA to consider fully the impacts of decisions taken under the Act on
communities of color and low-income communities.
B. Public Information and Assistance Provisions
TSCA contains a number of different provisions that provide EPA with authority and.
opportunities to provide information and assistance to communities of color and low-income
communities to facilitate their involvement in the regulatory process.
TSCA Section 21 establishes a mechanism through which citizens may petition EPA to
issue, amend, or repeal a rule. Citizens may petition EPA with respect to a number of different
types of regulatory actions relating to chemical substances. 15 U.S.C. § 2620(b)(l). EPA thus has
authority to pursue specific concerns of communities of color and low-income communities when
raised through the petition process. This mechanism was used in 1994, for example, when a citizen
petition led to EPA issuance of subpoenas to a number of U.S. companies requesting information
on chemical discharges to the New River in the U.S.-Mexico border region. Section 21 gives EPA
the authority to hold a public hearing upon receipt of a petition; use of such authority can further
increase participation of affected communities in the TSCA regulatory process.
TSCA Subchapter II, which was enacted as the Asbestos Hazard Emergency Response Act
(AHERA), contains another mechanism for responding to citizen concerns. Section 212 establishes
224
-------
an Asbestos Ombudsman to receive and provide assistance regarding "complaints, grievances and
requests for information submitted by any person with respect to any aspect" of AHERA. 15
U.S.C. § 2652. An ombudsman can potentially be a tool for greater citizen involvement in the
decision-making process, and can help ensure that EPA takes action when communities raise
environmental justice concerns in matters that fall within the scope of AHERA.
TSCA Subchapter IV, "Lead Exposure Reduction," also contains a number of public
information and assistance provisions. For example, Section 405(d) requires EPA to sponsor
public education and outreach activities to increase awareness of potential exposures to lead, health
impacts from exposure, and measures to reduce the risk of exposure. 15 U.S.C. § 2685(d)(l). This
section establishes an ongoing program that provides EPA with an opportunity to promote
environmental justice by ensuring that appropriate information about lead poisoning is accessible to
those most affected by the problem. TSCA Section 402(c) provides for the development of
information about lead hazards relating to renovation and remodeling practices, and requires
dissemination through a variety of channels and through "other appropriate means." 15 U.S.C. §
2682(c)(l). In addition, Section 406 requires EPA to publish, and to revise periodically, a lead
hazard information pamphlet. 15 U.S.C. § 2686(a). Children in communities of color and low-
income communities suffer disproportionately from elevated blood lead levels. See e.g., U.S. EPA,
ENVIRONMENTAL EQUITY: REDUCING RISKS TO ALL COMMUNITIES (1992). EPA can help
promote environmental justice in revising or updating these materials to ensure that they are serving
communities most affected by lead-based paint exposures.
Finally, Section 405 (e) requires EPA to establish a National Clearinghouse on Childhood
Lead Poisoning which, in addition to performing certain information dissemination functions
specified in the Act, is required to "perform any other duty that the Administrator determines
necessary to achieve the purposes of this Act." 15 U.S.C. § 2685(e)(l). This section gives EPA
broad authority to develop public information and assistance programs to assist communities of
color and low-income communities in participating in regulatory decisions relating to lead-based
paint activities under the Act, and in taking steps to reduce risks from lead-based paint generally.
II. STANDARD SETTING/RULE-MAKING
Most actions that EPA is authorized to take under the Toxic Substances Control Act must
be carried out through formal rule-making. Rule-making activities that relate directly to one of the
other Parts of this chapter — e.g., permitting/approvals, information gathering, etc. — are discussed
elsewhere. The rule-making activities included here are those provided by TSCA for the regulation
of existing chemicals generally, and for the regulation of PCBs and lead hazard activities.
A. Regulation of Existing Chemicals Generally
Under TSCA Section 6, if EPA finds that there is a "reasonable basis to conclude" that a
chemical substance will present an unreasonable risk of injury to health or the environment, EPA
must impose one or more of the requirements listed in the Act. -15 U.S.C. § 2605(a). These
requirements include: (1) prohibiting or limiting the manufacture, processing, or distribution of the
substance in general or for a particular use; (2) requiring warnings, instructions, or public notice
225
-------
regarding the substance; (3) imposing record-keeping, monitoring, and testing requirements relating
to the substance; (4) restricting commercial use of a substance; and (5) regulating the method of
disposal of a substance. Id.
The Act includes a number of important factors that must be considered by EPA in
determining whether to regulate a chemical. First, the Act specifies the costs and benefits that EPA
must consider, including: the health and environmental effects and exposures; the benefits of the
substance and availability of substitutes; and the "reasonably ascertainable economic consequences
of the rule." 15 U.S.C. § 2605(c). Second, EPA is directed to use the "least burdensome
requirements" necessary to protect adequately against the risks to health or environment. 15 U.S.C.
§ 2605(a). Finally, TSCA states that if EPA determines that the risk could be sufficiently reduced or
eliminated by action taken under a different EPA-administered law, then EPA "may not" isstie a
rule under Section 6 unless EPA makes a finding that such action would be in the public interest. 15
U.S.C. § 2605(c). . .
EPA has not used this rule-making authority to a great extent. In the wake of a Fifth Circuit
decision that struck down a Section 6 rule banning certain asbestos-containing products, EPA has
"deemphasized but not eliminated" use of TSCA Section 6 rules. ELIZABETH C. BROWN, ETAL.,
TSCA DESKBOOK 58 (Environmental Law Institute 1998); see Corrosion Proof Fittings v. U.S.
Environmental Protection Agency, 947 F. 2d 1201 (5th Cir. 1991). Nevertheless, Section 6 does provide
EPA with authority to incorporate environmental justice concerns into any such regulatory actions
in the future.
For example, Section 6(a) states that any of the requirements EPA imposes on the activities
involving a chemical substance "may be limited in application to specified geographic areas." 15
U.S.C. § 2605(a). Thus, if there is a reasonable basis for EPA to conclude that a chemical substance
is posing or will pose an unreasonable risk of injury to health or the environment in a particular low-
income community or community of color, EPA could — within the constraints of the Act noted
above — issue a rule tailoring restrictions to activities in that specified geographic area.
Section 6(c)(l), directs EPA to consider the "magnitude of the exposure of human beings"
to the substance in weighing the costs and benefits of any regulation under this section. 15 U.S.C. §
2605(c)(l). EPA could potentially promote envkonmental justice in undertaking this cost-benefit
analysis by considering more fully the exposure of communities of color and low-income
communities to the substance in question, through collection of demographic information,
consideration of unique exposure pathways, etc.
Section 6(c)(2) sets out notice and comment requirements for rule-making activities under
Section 6. 15 U.S.C. § 2605(c)(2)(C). In place of formal hearing procedures contained in the
Administrative Procedure Act, 5 U.S.C. § 553, this section of the Act requires an informal hearing.
Id. Section 6(c)(3) establishes guidelines for conducting the informal hearing, and provides that
interested parties are entitled to present their views orally, but authorizes EPA to establish
procedures to avoid "unnecessary costs or delay," including rules to place "reasonable time limits"
on oral presentations. 15 U.S.C. § 2605(c) (3) (B). EPA can promote envkonmental justice by
ensuring that implementation of this provision does not result in restricting participation of those
who traditionally have lacked access to the regulatory decision-making process.
226
-------
In addition, Section 6(c)(4) authorizes EPA to take action to assist affected communities in
participating in the Section 6 rule-making process. According to this provision, EPA may
compensate individuals for expert witness fees, attorney's fees, and other costs of participating if
they "represent an interest which would substantially contribute to a fair determination of the issues
to be resolved in the proceeding" and if they demonstrate that they lack sufficient resources
adequately to participate. 15 U.S.C. § 2605(c)(4)(A). The Act directs EPA to consider the financial
burden of participation and the need for a "fair balance of interests." Id. Furthermore, not more
than 25 percent of the total amount paid under this Section may by paid to the regulated community
or its representatives. 15 U.S.C. § 2605(c)(4)(B). This TSCA provision is unusual in addressing
directly a fundamental problem in effective community participation in the regulatory process.
TSCA Section 6(b) provides authority to regulate the manufacture or processing of
chemicals at particular facilities. EPA can take action if the agency "has a reasonable basis to
conclude that a particular manufacturer or processor is manufacturing or processing a chemical•., .in
a manner which unintentionally causes the chemical. . .to present or which will cause it to present
an unreasonable risk of injury to health or the environment." 15 U.S.C. § 2605(b) (emphasis added).
In such cases, the agency may issue an order requiring the party to submit information about its
quality control procedures; if EPA finds such procedures inadequate to prevent the risks, it may
order the party to revise its quality control procedures.
This provision authorizes EPA to respond to situations in which a manufacturer or
processor located in a community of color or low-income community is operating in an unsafe
manner. In addition, if EPA obtains information that the inadequate quality control procedures
have resulted in distribution of a chemical that may present a health or environmental risk, EPA is
authorized to order the party to give notice of that risk to the public and to any other person "in
possession of or exposed to" the substance. 15 U.S.C. § 2605(b) (2) (B).
v
TSCA Section 7 authorizes EPA to take action if a chemical substance presents an
"imminent and unreasonable risk of serious or widespread injury to health or the environment" that
is likely to occur before a final rule to regulate the substance can be issued under Section 6. 15
U.S.C. § 2606(f). In such cases, EPA may bring a court action for seizure of such substances and/or
relief against the party who manufactures, processes, distributes, uses, or disposes of the substance.
15 U.S.C. § 2606(a). The statute! provides that EPA must take Such action if the agency has not
made a rule under Section 6 effective immediately. Id.
Action under Section 6 can also be triggered by a provision contained in TSCA Section 4.
Section 4(f) provides that if EPA receives test data or other information that indicates there may be
a "reasonable basis to conclude that a chemical substance presents or will present a significant
risk of serious or widespread harm to human beings from cancer, gene mutations or birth defects,"
EPA must initiate action under the relevant section of the Act - including regulation of existing
chemicals under Section 6 -within 180 days. 15 U.S.C. § 2603(f). Thus, for chemicals presenting
these specific health risks, Section 4(f) serves as a trigger for the Section 6 regulatory mechanisms
described above. In addition, Section 4(f) may trigger action under other sections of TSCA, such as
those involving new chemicals and new uses of chemicals (described in Part III, below) or those
involving imminent hazards.
227
-------
B. Polychlorinated Biphenyls (PCBs)
TSCA Section 6 regulates polychlorinated biphenyls, mixtures of synthetic organic
chemicals that have been categorized by EPA as persistent, bioaccumulative and toxic. According
to the agency, more than 1.5 billion pounds of PCBs were manufactured in the United States prior
to 1977 when TSCA was enacted. See U.S. EPA Office of Pollution Prevention and Toxics, PCB
Homepage, ff/http://www.epa.gov/opptintr/pcb/ftBACKROUND INFORMATION (last
modified Oct. 16, 2001).
TSCA Section 6(e) prohibits the manufacture, processing, and distribution of PCBs and
prohibits the use of PCBs other than in a totally enclosed manner. 15 U.S.C. § 2605(e)(2),(3). The
Act does, however, provide for certain exemptions from these prohibitions. Section 6(e)(2)(B)
allows EPA to authorize the use of PCBs other than in a totally enclosed manner if the agency finds
that such use "will not present an unreasonable risk of injury to health or the environment." 15
U.S.C. § 2605(e)(2)(B). Additionally, Section 6(e)(3)(B) establishes a petition procedure through
which any person may seek an exemption from the ban on manufacture, processing, and
distribution of PCBs; EPA may by rule grant such an exemption if the agency finds that there have
been good faith efforts to develop a substitute chemical, and that "an unreasonable risk of injury to
health or environment would not result " 15 U.S.C. § 2605(e)(3)(B).
EPA can promote environmental justice by considering fully the potential risks to affected
communities from the proposed activity involving PCBs before granting any exemptions to the
TSCA prohibitions. For example, EPA could consider whether the activity presents unreasonable
risks due to unique exposure pathways, such as fish consumption, or due to the cumulative and
synergistic effects of numerous sources of chemical exposure in the affected communities.
TSCA Section 6(e) requires EPA to promulgate regulations prescribing methods for
disposal of PCBs. 15 U.S.C. § 2605(e)(l). EPA has issued detailed regulations governing PCB
storage and disposal. See 63 Fed. Reg. 35384 (June 29,1998), codified at 40 C.F.R. Part 761. For
example, the regulations pkce limits on storage of PCBs prior to disposal and establish a variety of
restrictions and prohibitions on the manner in which PCBs may be disposed. 40 C.F.R. §§ 761.65,
761.50, 761.60. In light of Section 6(e)'s very general mandate to EPA, the agency has considerable
authority to consider the types of risks of concern to communities of color and low-income
communities in its review and implementation of these standards.
EPA also has an opportunity to further environmental justice goals in its approval of PCB
disposal activities. While EPA does not directly regulate the siting of waste disposal facilities under
TSCA Section 6(e), EPA's regulations do require certain approvals from EPA Regional
Administrators. For example, such approval is required prior to disposing of PCBs in a chemical
waste landfill. 40 C.F.R. § 761.75(c). EPA may include in its approval "any other requirements or
provisions that the Regional Administrator finds are necessary to ensure that operation of the
chemical waste landfill does not present an unreasonable risk of injury to health or the environment
from PCBs." 40 C.F.R. § 761.75(c)(3)(ii). EPA thus has wide discretion to establish conditions -
for example, monitoring or emergency preparedness conditions — to protect public health and the
environment where such landfills are located in already overburdened communities. See also 40
C.F.R. § 761.70 (approval to incinerate PCBs).
228
-------
In addition, EPA can ensure public input into approval decisions, particular in cases where
applicants seek a waiver of any requirements set forth in the regulations. See 40 C.F.R. §§
761.75(c)(4), 761.70(d)(5) (governing waivers in applications for approval for PCB chemical landfills
and incineration). Iri some cases, EPA may also be authorized to require applicants to submit
demographic and other information necessary to assess adequately die risks to health and the
environment prior to issuing an approval. See, e.g., 40 C.F.R. § 761.70(d)(3) (governing applications
for approval for PCB incineration).
C.
Lead Hazards
Under Section 403 of TSCA, which falls within Subchapter IV on lead exposure reduction,
EPA must promulgate regulations that identify "lead-based paint hazards, lead contaminated dust,
and lead contaminated soil." 15 U.S.C. § 2683. EPA promulgated these regulations in January,
2001. See 66 Fed. Reg. 1206 (January 5, 2001), codified at 40 C.F.R. Part 745. While TSCA Section
403 does not require regulations to mandate specific lead exposure reduction activities, this standard
setting provision is important because it establishes national guidance for lead hazard reduction
activities that occur in a variety of federal, state, and local programs. Because lead poisoning is a
serious health threat to children of color in particular, EPA can promote environmental justice by
continuing to ensure that the standards reflect current scientific understanding of the relationship
between elevated blood lead levels and lead levels in paint, dust, and soil.
III. PERMITTING AND OTHER APPROVALS
TSCA establishes a scheme for EPA review of new chemicals or new uses of existing
chemicals prior to their manufacture or use. While not a formal permitting program, this
mechanism does enable EPA to prohibit or condition activity involving a chemical substance before
it occurs. This "approval" process for new chemicals and significant new uses thus provides an
opportunity for preventing unreasonable health and environmental risks from chemical substances.
Under TSCA Section 5, it is unlawful to manufacture a chemical substance that is listed on
the TSCA chemical inventory without submitting to EPA a "pre-manufacture notice" (PMN) 90
days in advance. 15 U.S.C. § 2604(a). This section also requires a "significant new use notice" when
any person seeks to manufacture or process a chemical substance if EPA has, by rule, determined
that such a use would constitute a significant new use. In general, these notices must be
accompanied by any test data the party already has, knows about, or could reasonably ascertain. 15
U.S.C. § 2604 (d)(10)(B). EPA reviews die notice to determine whether regulatory action is needed
to prevent unreasonable risk of injury to health or the environment from the chemical substance.
At the end of EPA's 90-day review period the party may begin the manufacture or new use of the
substance unless EPA takes action to restrict use of the substance.
Section 5(e) establishes EPA's authority to prohibit or place conditions on activities
involving new chemical substances or the significant new uses of chemicals while sufficient data
about health and environmental effects are being developed. The Act provides that EPA must take
action to "prohibit or limit the manufacture, processing, distribution . . .use or disposal" of a
substance or any combination of those activities, if EPA makes a finding as specified in the Act. 15
229
-------
U.S.C. § 2604(e)(l)(A). EPA must find that there is insufficient data to evaluate the health and
environmental impacts, and the agency must also find either (1) that the substance may present an
unreasonable risk of injury to health or the environment, or (2) that substantial quantities of the
substance will be produced and enter the environment or create significant exposure. Id.
The prohibition or restrictions authorized under Section 5(e) are applicable only to the party
submitting the PMN. Thus, in certain circumstances EPA has authority to prohibit or place
restrictions on the use of a new chemical at a facility located in a particular community — including
communities of color and low-income communities — if the chemical may present unreasonable
risks, until sufficient data is produced to evaluate the health and environmental effects, This section
also authorizes EPA to focus attention in .the PMN review process on chemicals or types of
chemicals that may be of concern to communities of color and low-income communities generally,
and to ensure adequate testing to identify risks that require regulatory controls.
In reviewing a PMN, EPA may consider whether certain uses other than those proposed
might raise concerns about environmental or health impacts. This is particularly important in light
of the fact that restrictions on new chemicals under Section 5(e) only apply to the party submitting
the notice. Section 5 (a) authorizes EPA to develop rules that specify the uses of a chemical
substance that would constitute significant new uses requiring pre-notification through a significant
new use notice (SNUN). 15 U.S.C. § 2604(a)(2). The determination of what constitutes a significant
new use is important, since review of a SNUN provides EPA with another mechanism for
restricting chemical use until sufficient environmental and health data are in hand. In deciding
whether to promulgate a significant new use rule, EPA must consider how much of the chemical
would be manufactured or processed, as well as changes in the type, magnitude, and duration of
exposure to people or the environment. Id. EPA could thus promote environmental justice by
considering whether the substance is more likely to be used by communities of color or low-income
communities or whether new uses might present different types of exposures for sensitive
populations.
Section 5(b) gives EPA authority to develop a list of substances "with respect to which the
Administrator finds that the manufacture, processing, distribution in commerce, use or disposal, or
any combination of such activities, presents or may present an unreasonable risk of injury to health or
the environment," including uses of substances that would constitute a significant new use. 15
U.S.C. § 2604(b)(4) (emphasis added). Placement on this list is significant because it triggers a
requirement that a party submit data showing that the manufacture, processing, distribution, use or
disposal of the chemical, or any combination of those activities (or the intended significant new use
of the substance, in the case of a SNUN), will not present an unreasonable risk of injury to health or
the environment. 15 U.S.C. § 2604(b)(2)(B). EPA's authority to list a chemical substance if the
various activities associated with the substance (individually or in the aggregate) may present an
unreasonable risk potentially enables the agency to take action if it has information that communities
of color or low-income communities are likely to be disproportionately exposed to or impacted by
such substances.
230
-------
IV. DELEGATION OF PROGRAMS TO STATES AND TRIBES
TSCA does not provide for delegation to states or Tribes of authority for implementing the
general statutory schenie for regulating chemical substances. However, TSCA Subchapter IV, which
addresses risks from lead exposure, provides for approval of certain state programs established in
that portion of the Act. TSCA Section 404 allows states to operate two types of programs in pkce
of the federal programs set up in the Act: (1) training and certification of those involved in lead-
based paint activities under Section 402, and (2) preparation of lead hazard information under
Section 406. 15 U.S.C. § 2684(a).
Within 180 days after receiving a state application for authorization, EPA must approve or
disapprove the application; approval is contingent on a finding that the state program (1) is at least
as protective of human health as the federal program, and (2) provides for adequate enforcement.
15 U.S.C. § 2684(b). Along with its application, a state may also certify to EPA that its program
meets these two requirements; in such a case, the statute provides that the state program is deemed
to be authorized until EPA disapproves the application or withdraws the authorization. Withdrawal
of authorization is required if, after being given an opportunity to take corrective action, a state
program is not administering and enforcing the program in compliance with the provision of the
Act. 15 U.S.C. § 2684(c). EPA can promote environmental justice by ensuring adequate review of
state certifications and applications for authorization, and by taking steps to identify state programs
not in compliance with the federal requirements.
V. ENFORCEMENT
TSCA Section 15 sets forth the actions that are prohibited under the Act and that trigger
EPA's enforcement authorities. Prohibited acts include failure or refusal to comply with test rules,
or with statutory requirements, rules, and orders relating to: (1) new chemical pre-manufacture
notification; regulation of existing chemicals; or asbestos hazard control. 15 U.S.C. § 2614(1).
Section 15 also prohibits non-compliance with record-keeping and reporting requirements, as well as
the refusal to grant access for inspections authorized under the Act. 15 U.S.C. § 2614(3).
TSCA Section 16(a) provides for a civil penalty of up to $25,000 per violation, per day, for
violations' of the Act as specified in Section 15. Among the factors that EPA must consider in
determining the amount of the penalty, are: "extent and gravity" of the violation; history of prior
violations; and "such other matters as justice may require." 15 U.S.C. § 2615(a). The statute thus
provides EPA with considerable discretion to take into account factors of particular concern to
communities of color and low-income communities, including economic benefit and compliance
history. In 1980, EPA issued Guidelines for Assessment of Civil Penalties under Section 16 of
TSCA. See 45 Fed. Reg. 59770 (Sept. 10,1980).
TSCA Section 11 authorizes EPA to conduct inspections to ensure compliance with the
Act. The EPA Administrator, or her "duly designated representative" may inspect any premises in
which chemical substances are manufactured, stored, processed, or held. 15 U.S.C. § 2610(a). EPA
can use this authority to promote environmental justice by targeting inspectipn resources to
231
-------
communities with high-risk populations and to those that have not been the focus of enforcement
resources in the past.
TSCA Section 20 authorizes citizens' suits to enforce provisions of the Act. 15 U.S.C. §
2619.
For a fuller discussion of statutory enforcement authorities for promoting environmental
justice, see Chapter 5.
VI. INFORMATION GATHERING (RESEARCH, MONITORING,
AND REPORTING)
Among the Toxic Substances Control Act's most significant provisions are those relating to
the generation and collection of information about new and existing chemical substances.
A. Testing Chemical Substances
A central component of TSCA's regulatory scheme is the requirement that manufacturers
and processors of certain existing chemical substances undertake testing of those substances and
report the test data to EPA. These data may trigger the use of other regulatory tools available under
TSCA for addressing risks to health and the environment, and could be useful to regulatory
programs under other environmental laws as well.
Given the number of chemical substances akeady in use, the question arises which chemicals
should get priority consideration for the promulgation of testing requirements. TSCA appears to
give EPA broad discretion in adopting such priorities consistent with the purposes of the Act.
Section 4(e) provides one mechanism for priority setting through the creation of an Interagency
Testing Committee (ITC), consisting of eight members drawn from EPA and other specified federal
offices, which is to make recommendations of specific substances for EPA action. The
recommendations take the form of a list of chemicals ranked in order of priority and reviewed every
six months, with the committee designating up to 50 chemicals for which EPA should initiate rule-
making within a 12-month period. Once a chemical substance has been designated, EPA has 12
months to either initiate rule-making for testing or publish its reasons for not doing so. 15 U.S.C. §
2603(e)(l)(A).
Section 4(e) does not limit EPA development of test rules to those substances designated by
the ITC. Indeed, EPA has recently undertaken initiatives aimed at persistent, bioaccumulative and
toxic (PBT) chemicals; endocrine disrupting chemicals; chemicals that particularly affect children;
and high production volume chemicals. EPA thus has authority to establish additional priorities for
testing of those chemical substances or categories of chemical substances that may be of particular
concern to communities of color and low-income communities.
TSCA Section 4(a) provides that EPA must, by rule, require health and environmental
effects testing of chemical substances if the agency makes one of two findings outlined in the Act.
EPA must find either: (1) that the substance may present an unreasonable risk of injury to health or
232
-------
the environment or (2) that the substance will be produced in substantial quantities and either may
enter the environment in substantial quantities or will involve substantial human exposure. 15
U.S.C. § 2603(a)(l). In either case, EPA must also find that there are insufficient data.for predicting
the health and environmental effects and that testing is necessary to develop the data. The testing
required by EPA may relate only to those effects for which there is insufficient data. Id.
In determining whether to require testing, TSCA directs EPA to consider whether
"manufacture, distribution in commerce, processing, use or disposal of a chemical substance or
mixture, or . . .any combination of such activities" may present unreasonable health risks. 15 U.S.C. §
2603(a)(l) (emphasis added). In determining whether a chemical may pose an unreasonable risk,
EPA can promote environmental justice by considering fully the potential health and environmental
risks to communities of color and low-income communities - for example, by considering whether
unique exposure pathways exist, whether multiple sources of exposure may produce cumulative and
synergistic effects, or whether sensitive populations are exposed.
Section 4(b) establishes the requirements for promulgating test rules once EPA has made
the necessary findings under Section 4(a). Section 4(b)(2) sets out the types of health and
environmental effects for which EPA may prescribe standards on developing test data. The Act
specifically includes "cumulative or synergistic effects, and any other effect which may present an
unreasonable risk of injury to health or the environment." 15 U.S.C. § 2603(b)(2)(A). The law thus
gives EPA explicit authority to require testing to obtain information on the types of health effects
that are of particular concern to heavily impacted communities. .
Section 4(b)(5) requires that test rules be issued in conformity with the Administrative
Procedure Act and establishes specifically that EPA must provide an opportunity for interested
persons to make written and oral presentations of information. 15 U.S.C. § 2603(b)(5). EPA
regulations also state that prior to making a determination of the need for testing, EPA will hold a
public "focus meeting" to discuss and obtain comments on the testing recommendations of the
ITC. 40 C.F.R. § 790.22(a). The agency will then hold a public meeting to announce its preliminary
testing determinations. These provisions potentially give affected communities an opportunity for
input into the scope of a test rule and the type of information that will be developed.
Another opportunity for community participation in decisions about chemical testing exists
in an area of EPA activity that has been created wholly through regulation - the negotiation of
testing consent agreements. See 40 C.F.R. § 790. While all negotiating meetings are open to the
public and the documents pertaining to the meetings are placed in the agency's public file, the
regulations only require EPA to send notice of negotiating meetings and copies of key documents to
those "interested parties" who responded to EPA's initial Federal Register notice about the
Interagency Testing Committee's testing recommendations. 40 C.F.R. § 790.22(b). EPA could
promote environmental justice by taking steps to identify interested parties from communities that
traditionally have been excluded from the decision-making process.
B. Reporting and Record-keeping
TSCA provides EPA with broad authority to require manufacturers and processors of
chemical substances to report information about those substances. This authority is important
233
-------
because such information can provide a foundation for taking action to reduce or eliminate risks for
chemical substances in all agency programs, and can also assist community members in taking action
to address risks.
Section 8(a) requires EPA to promulgate rules under which chemical manufacturers and
processors "shall maintain such records, and shall submit to the Administrator such reports, as the
Administrator may reasonably require . ..-." 15 U.S.C. § 2607(a)(1)(A). This provision, which
exempts small manufacturers or processors, authorizes EPA to require information that is known or
reasonably ascertainable, including: (1) how the chemical is used; (2) how much is manufactured or
processed; (3) the by-products created; (4) health and environmental effects data; (5) the number of
people exposed in the workplace; and (6) the methods of disposal of the chemical. 15 U.S C
-------
TSCA Section 8(e) contains another requirement for submitting information to EPA
regarding health effects of chemicals. This provision is self-enforcing, and requires chemical
manufacturers, processors, and distributors to inform EPA immediately if that person obtains
"information which reasonably supports the conclusion that such substance or mixture presents a
substantial risk of injury to health or the environment ...» 15 U.S.C. § 2607(e). This requirement,
which does not include information that the person knows that EPA already has, covers all
chemicals regulated under TSCA and all those who process, manufacture, and distribute those
chemicals The requirement is important to EPA's ability to assess risks posed by chemicals, and
EPA can promote environmental justice by ensuring that appropriate enforcement action is taken
when parties fail or refuse to report information about health or environmental risks affecting
communities of color and low-income communities.
FinaEy Section 11 gives EPA authority to subpoena the testimony of witnesses and the
production of information such as reports, papers, documents, and answers to questions 15 U.S.C.
S 2610 This section provides EPA with authority to obtain information on possible health or
environmental risks in communities of color and low-income communities. As mentioned earlier,
EPA used such authority in 1994 to subpoena answers to questions from 95 companies about
chemicals released into the New River.
C. Research
TSCA grants broad research authority to EPA. Section 10 states that EPA shall "conduct
such research, development, and monitoring as is necessary to carry out the purposes of this
chapter" 15 U.S.C. § 2609(a). According to TSCA Section 2(b), the "primary purpose oftheAct
is to ensure that the development of and commerce in chemical substances "do not present an
unreasonable risk of injury to health or the environment." Thus EPA is given considerable
discretion in carrying out research and monitoring activities aimed at gaining a fuller understanding
of me health ris2 posed by chemical substances. This could include research and monitoring that
relate to chemicals of particular concern to communities of color and low-income communities, or
that are aimed at defining more clearly the risks to these communities posed by exposure to
chemical substances _ for example, by looking at different exposure pathways or considering
sensitive populations. - .
VII. FINANCIAL ASSISTANCE
TSCA Section 28 authorizes EPA to make grants to states to implement prograimthat
prevent or eliminate unreasonable health and environmental risks relating to a chemical substance
whTrTEPA is "unable or not likely" to take such action itself. 15 U.S.C. § 2627(a) States may only
±ve* grant if they have demonstrated a "priority need." EPA establishes by rule the ^rs to be
considered in making this determination, which must incorporate those set out in the Act includmg.
r±usness of th? health effects; the extent oT ^^^.^^S^SS)
substances are manufactured, processed, used, and disposed of in the state. 15 U.S.C. § 26270>)(2 .
ThL section provides EPA with an opportunity to incorporate environmental justice issues into its
evaluation of state grant proposals.
235
-------
/IUUCN addition>TSCA Section 27 authorizes the Department of Health and Human Services
(HHS) to make grants to non-profit organizations to develop inexpensive and efficient methods for
determining and evaluating health and environmental impacts of chemical substances that can be
used in developing test data. 15 U.S.C. § 2626. While EPA does not administer the grant program
EPA is given a consultative role in making the grants and could therefore bring to the attention of'
HHS those community research opportunities that might strengthen the chemical testing program.
TSCA Subchapter III, which addresses Indoor Radon Abatement, contains a number of
provisions that target resources to low-income communities. For example, TSCA Section 305
authorizes EPA to provide technical assistance to states to carry out radon-related activities
including demonstration projects for mitigating high radon levels in homes. This section states
explicitly that such projects should involve the homes of low-income persons "to the maximum
extent practicable." 15 U.S.C. § 2665(a). Similarly, Section 306 authorizes EPA to provide grants
to states to implement radon programs. That section lists as eligible state activities the purchase of
radon measurement devices and the payment of costs of radon mitigation demonstration projects
and directs states to "make every effort... .to give a preference to low income persons" in carrying
out those activities. 15 U.S.C. § 2666(c),(i). Section 306 also provides that one of the activities
eligible for state grant assistance is the "survey of radon levels, including special surveys of
geographic areas or classes of buildings ...» 15 U.S.C. § 2666(c). Additionally, EPA's authority to
establish priorities for state radon program activities as "the Administrator deems necessary to
promote the goals of the grant program ....'»gives the agency another opportunity to target
resources for addressing radon to low-income communities. 15 U.S.C. § 2666(e).
Finally, one provision that involves indirect financial assistance falls under TSCA Subchapter
II, the Asbestos Hazard Emergency Removal Act. The purpose of AHERA is to "provide for the
establishment of Federal regulations which require inspection for asbestos-containing material and
implementation of appropriate response actions .. .in the Nation's schools." 15 U.S.C. § 2641 (b).
Section 208 provides EPA with authority to act to protect human health or the environment if the
presence of asbestos in a school poses "an imminent and substantial endangerment to human health
or the environment, and the local educational agency is not taking sufficient action " 15
U.S.C. § 2648(a). This provision gives EPA authority to target its resources to addressing asbestos
exposure in low-income communities that lack resources to adequately maintain school facilities.
236
-------
CHAPTER 17
EMERGENCY PLANNING AND COMMUNITY
RIGHT-TO-KNOW ACT ("EPCRA")
42 U.S.C. §§ 11001-11050
The Emergency Planning and Community Right-to-Knpw Act (EPCRA) was enacted as
Title III of the Superfund Amendments and Reauthorization Act of 1986. The law was passed in
response to growing public concern about accidental releases of toxic chemicals. In December
1984, an accidental release of toxic chemicals from a Union Carbide pesticide plant in Bhopal, India
killed more than 2,000 people and injured over 200,000 more. Following the Bhopal disaster, in
August 1985, a Union Carbide plant in Institute, West Virginia released a different type of pesticide
into the air, requiring nearly 150 residents to seek medical care.
These chemical release accidents highlighted the need for improved emergency
preparedness, including the need for providing information about chemical use and storage to
communities and emergency personnel, prior to chemical release accidents. EPCRA was enacted in
an effort to address these concerns. See JOHN APPLEGATE, ET. AL, THE REGULATION OF TOXIC
SUBSTANCES AND HAZARDOUS WASTES 1139-1141 (2000). EPCRA requires state and local entities
to take certain steps to prepare for chemical release emergencies, such as preparing emergency plans.
EPCRA also seeks to increase the amount of information available to the public about chemicals in
their communities by requiring certain businesses to report information about their use, storage, and
release of specific chemicals. This chapter highlights the statutory provisions of EPCRA that
provide EPA with authority to advance environmental justice goals. This information provides the
public with a foundation for considering the scientific, technological, political and legal factors that
will influence future EPA efforts to use individual statutory authorities discussed here to promote
environmental justice.
Many provisions of EPCRA grant authority to state and local entities, as opposed to EPA.
A brief overview of the state and local entities that are established by the statute is included in this
introduction, in an effort to provide background on the EPCRA framework and specific statutory
provisions that are discussed. It is important to note, however, that this chapter focuses primarily
on the authorities granted to EPA. EPCRA requires the Governor of each state to designate a State
Emergency Response Commission (SERC) that in turn is required to designate emergency planning
districts within each state. The purpose of the planning districts is to facilitate preparation and
implementation of emergency plans. 42 U.S.C. § 11001(a)-(b). In addition, each SERC is required
to appoint a local emergency planning committee (LEPC) in each planning district. Each LEPC is
responsible for reviewing the information submitted by facilities covered by the emergency planning
requirements of the Act, discussed below, and developing a plan to respond to local chemical
emergency releases. 42 U.S.C. § 11003. The statute requires thatLEPCs include representatives
from a wide range of groups including, but not limited to, state and local officials, local
environmental groups, and broadcast and media groups. 42 U.S.C. § 11001(c). SERCs are charged
with supervising and coordinating the activities of the LEPCs. 42 U.S.C. §§ 11001 (a), 11003(e).
237
-------
EPCRA does not contain any general'provisions that state the intent or goals of Congress in
enacting the legislation, as noted in Part I of this chapter. Part II discusses the standard setting and
rule-making authority EPCRA grants to EPA that could be used to forward environmental justice
goals. For example, EPA determines the list of extremely hazardous substances that are subject to
the emergency planning and notification requirements of the Act. EPA also develops guidance
documents to assist local entities in preparing and implementing emergency plans. EPCRA also
grants authority to EPA to develop some of the key reporting obligations for businesses, such as the
toxic release inventory reporting requirements of the Act. Part IV of the chapter discusses some of
the duties imposed on state and. local entities and highlights how EPA could help guide their efforts
in a manner that takes into account environmental justice issues.
Part V of the chapter addresses the enforcement provisions of EPCRA and how they could
be used to promote environmental justice, including special enforcement provisions for health
professionals and citizen suits by community groups. Part VI outlines the information gathering
provisions in EPCRA, including the numerous reporting requirements that are imposed on
businesses with respect to the chemicals they use, store, and release in communities across the
country. Part VI also discusses the provisions of the Act that require EPA, states, and localities to
make reported information available to the public. EPCRA places a strong emphasis on ensuring
that the information collected from businesses is available to communities. Part VII addresses the
provisions of EPCRA that authorize federal training and education programs for federal, state, and
local personnel on emergency preparedness, disaster response, and related areas.
I. GENERAL PROVISIONS
EPCRA does not contain any general provisions that state the intent or goals of Congress in
enacting the legislation.
II. STANDARD SETTING/RULE-MAKING
EPCRA establishes programs that impose reporting obligations on owners and operators of
certain facilities. The Act includes several specific grants of authority to EPA to develop some of
the major components of these reporting programs. The statutory reporting requirements
themselves are address in Part VI. This Part discusses EPA's rule-making and standard setting role
in those programs. In addition, EPCRA requires local and state authorities to develop plans for
responding to chemical release emergencies, as discussed in Part IV. The statute directs EPA and
other agencies to establish guidance to assist states and local authorities in implementing such pkns.
A. Emergency Planning For Extremely Hazardous Substances
EPCRA Section 302(a) requires EPA to publish a list of extremely hazardous substances
and to initiate a rule-making establishing a threshold quantity for each substance on the list, taking
into account certain criteria. The substances on the list are subject to the emergency planning
notification requirements of the Act. EPA may revise the list and thresholds "from time to time."
Any revisions to the list must consider the toxicity, reactivity, volatility, dispersability,
238
-------
combustability, or flammability of a substance. The statute explains that the term "toxicity" includes
"any short- or long-term health effect which may result from a short-term exposure to the
substance." 42 U.S.C. § 11002(a).
This section provides general authority to EPA that could be used to promote
environmental justice goals. EPA could review and revise, as appropriate, its list of hazardous
substances and their threshold quantities, if additional substances or lowering the threshold amount
would help ensure that adequate emergency planning notification requirements are imposed around
low-income communities and communities of color.
B. National Response Team Emergency Plan Guidance
Section 303 (f) requires the national response team (NRT) to publish guidance documents
by March 1987 for the preparation and implementation of emergency plans. 42 U.S.C. § 11003(f).
This section provides authority for the development of guidance documents that could take into
account environmental justice concerns. The NRT, comprised of EPA and 14 other federal
agencies, has issued several documents pursuant to this section. The primary document, "NRT-1,"
also known as the "orange book," was issued in March 1997. This document, titled "Hazardous
Materials Emergency Planning Guide," provides unified guidance for hazardous materials
emergency planning and is intended to serve as a consensus on which future guidance, technical
assistance, and training will be based. The document states that it reflects comments received from
states and local governments, industry, environmental organizations, and members of public. The
document covers a wide range of issues including: planning team tasks, emergency plan
development, plan elements, plan appraisals, and plan updates.
The NRT has also issued two other documents: "NRT-2," which was issued in 1990, is
tided "Developing A Hazardous Materials Exercise Program: A Handbook for State and Local
Officials; and "NRT-1 A," which was issued in 1988, is titled "Criteria for Review of Hazardous
Emergency Plans." The latter document provides guidance to regional response teams that review
local emergency plans.
This statutory authority provides considerable opportunity for EPA to incorporate
environmental justice concerns in guidance for state and local entities responsible for emergency
planning and response. For example, guidance documents could assist localities in determining
whether low-income communities and communities of color may require special medical attention
in the event of a chemical release, because of cumulative exposures, consumption patterns, or
sensitive populations. Guidance documents could also provide suggestions as to how to include and
recruit representatives from low-income communities and communities of color on emergency
planning teams.
C. Hazardous Chemicals Threshold Quantity Regulations
The statutory sections outlined below relate to two principal reporting obligations on owners
and operators of certain facilities. First, facilities required to prepare material safety data sheets
under the Occupational Safety and Health Act (OSHA) and its regulations must submit or make
239
-------
available the sheets to SERCs, LEPCs, and local fke departments. Second, certain facilities must
submit emergency and hazardous chemical inventory forms to the same authorities.
Section 311(b) provides that EPA may establish threshold quantities for hazardous
chemicals, below which no facility is subject to the material safety data sheet reporting requirements
of Section 311. The threshold quantities may, in EPA's discretion, be based on classes of chemicals
or categories of facilities. 42 U.S.C. § 11021(b). Section 312(b) provides that EPA may also
establish threshold quantities for hazardous chemicals, below which no facility is subject to the
emergency and hazardous chemical inventory form reporting requirements of Section 312. 42
U.S.C. § 11022(b). Under both provisions, the threshold quantities may, in EPA's discretion, be
based on classes of chemicals or categories of facilities. 42 U.S.C. § 11021(b), 11022(b). These
general provisions provide substantial discretion to EPA and, therefore, presumably could be used
by EPA to consider environmental justice concerns, such as cumulative exposures, in establishing
threshold quantities for hazardous chemicals under two key reporting requirements in the Act.
D. Toxic Chemical Release Reporting Authorities
The authorities outlined in this section pertain to the toxic release inventory reporting
requirements of the Act, which require owners and operators of certain facilities to submit annual
reports on the amounts of toxic chemicals their facilities release into the environment. The
substantive reporting requirements are discussed in more detail in Part VI of this chapter. This Part
addresses EPA's authority and role with respect to establishing and implementing the reporting
program.
Section 313 (b) provides authority to EPA to add or delete standard industrial classification
(SIC) codes from the list that determines, in part, the facilities that must file toxic chemical release
forms. 42 U.S.C. § 11023(b). Additions or deletions to the list are only authorized to the extent
necessary to provide that each SIC to which the requirements apply is "relevant for the purposes of
this section." Id.
Section 313(b)(2) provides that EPA may on its own motion or at the request of a state
governor apply the toxic chemical release reporting requirements of Section 313 to the owners and
operators of any particular facility that manufactures, processes, or otherwise uses a toxic chemical
covered under Section 313(c) of the Act. 42 U.S.C. § 11023(b)(2). EPA may use this authority
when it determines that it is warranted on the basis of toxicity of the chemical, proximity to other
facilities that release the toxic chemical or to population centers, the history of releases of the
chemical at the facility, or "such other factors as the EPA deems appropriate." Id.
Section 313 (d) provides that EPA may by rule add or delete a chemical from the list of
chemicals established by Congress that are subject to the toxic chemical release reporting
requirements of EPCRA. 42 U.S.C. § 11023(c)-(d). The statute sets out several circumstances in
which a chemical may be added including, but not limited to, when EPA determines there is
sufficient evidence to establish that the chemical is known to cause or can reasonably be anticipated
to cause significant adverse acute human health effects at concentration levels that are reasonably
likely to exist beyond the facility site boundaries as a result of continuous or frequently recurring
releases. 42 U.S.C. § 11023(d)(2). The statute states that a determination under this provision must
240
-------
be based on generally accepted scientific principles or laboratory tests, or appropriately designed and
conducted epidemiological or other population studies available to EPA. Id.
Section 313(f) provides that EPA may establish a threshold amount for purposes of
reporting toxic chemicals .that is different from the amount established in the statute. 42 U.S.C. §
11023(f). The revised threshold must obtain reporting of a substantial majority of total releases of
the chemical at all facilities subject to the reporting requirement. The statute provides that the
amounts established may be based on classes of chemicals or categories of facilities. Id.
These provisions grant EPA substantial authority to shape the toxic chemical release
reporting program. Environmental justice considerations could be taken into account by EPA in
using this authority. EPA has used this authority in recent years to add chemicals to the list of
chemicals that are subject to release reporting and to amend the SIC code list that determines which
facilities must report. See, e.g., 62 Fed. Reg. 23834 (May 1, 1997) (addition of industry sectors,
including metal mining, coal mining, and electric utilities); 59 Fed. Reg, 61432 (November 30, 1994)
(addition of 286 chemicals to reporting list). EPA could consider whether any additional changes to
the chemical and SIC code lists would be appropriate, in an effort to forward environmental justice
goals. Such additions could be based on, for example, epidemiological studies of low-income
communities and communities of color. EPA could also apply the toxic chemical release reporting
requirements to the owners and operators of particular facilities that use toxic chemicals covered
under Section 313, if such facilities pose risks to low-income communities and communities of
color. EPA could also use its authority to make additional amendments to threshold reporting
amounts. See, e.g., 66 Fed. Reg. 4499 (January 13, 2001) (lowering reporting thresholds for lead and
lead compounds .because they are persistent, bioaccumulative, and toxic chemicals), codified at 40
C.F.R. Part 372. .
E. Regulations on Provision of Information to Health Care Professionals
EPCRA Section 323 requires owners and operators of facilities to provide information to
health professionals, doctors, and nurses for purposes of diagnosis and treatment, response to
medical emergencies, and preventative measures. Specifically, Section 323(a) requires owners and
operators of certain facilities to provide chemical identity information (if known) of hazardous
chemicals, extremely hazardous substances, or toxic chemicals to any health professional who
requests the information in writing. 42 U.S.C. § 11043(a). The health professional must provide
both a written statement that the information is needed for purposes of diagnosis and treatment,
and a written confidentiality statement. Id.
Section 323 (b) requires owners and operators to provide copies of material safely data
sheets, inventory forms, or toxic chemical release forms, including specific chemical identities, to
any treating physician or nurse who requests such information in a medical emergency. 42 U.S.C. §
11043(b). Section 323 (c) requires owners and operators to provide the specific chemical identity, if
known, of a hazardous chemical, extremely hazardous substance, or a toxic chemical to any health
professional that works for the local government or is under contract with the local government. 42
U.S.C. § il043(c). The statute contains the procedures that must be followed and the contents of -
the statement of need provided by the health professional. Needs outlined in the statute include use
of the information for purposes of conducting or assessing sampling to determine exposure levels of
' 241
-------
various population groups. Id. In addition, EPA is required to issue regulations that describe the
criteria and parameters for the "statements of need" and confidentiality agreements that must be
provided by health professionals in order to obtain information from owners and operators of
facilities. U.S.C. § 11043(e).
The information that health professionals are authorized to seek under this section, whether
for treatment and diagnosis or for conducting activities such as sampling, can be vital to health
protection in low-income communities and communities of color. Accordingly, EPA's regulations
could help ensure that the procedures that health professionals are required to follow are as
streamlined as possible, in order to facilitate their use.
F. Petitions for Deletions and Additions to List of Toxic Chemicals Subject to
Toxic Chemical Release Form Reporting Requirements
Section 313(e) provides that any person may petition EPA to add or delete a chemical from
the list of chemicals subject to the toxic chemical release form reporting requirements. 42 U.S.C. §
11023(e). The petition must be based on the same criteria that the statute directs EPA to use in
making deletions and additions to the list. 42 U.S.C. § 11023(e),(d)(2). Within 180 days after receipt
of a petition, EPA must either initiate a rule-making to add or delete the chemical from the list or
publish an explanation of why the petition is denied. 42 U.S.C. § 11023(e).
This is a general tool that has been used by industry and environmental groups. It could be
used specifically to promote environmental justice, because it authorizes petitions to EPA to list
chemicals that may present particular threats to low-income communities and communities of color,
due to cumulative exposures, sensitive populations, or consumption patterns.
III. PERMITTING AND OTHER APPROVALS
EPCRA does not contain permitting provisions.
IV. DELEGATION OF PROGRAMS TO STATES AND TRIBES
EPCRA imposes several responsibilities directly on state and local authorities. Because these
obligations are imposed directly and are not delegated, EPA's oversight authority is somewhat
limited. EPA plays an important role, however, in providing guidance to SERCs and LEPCs. EPA
provides this advice through statutorily required guidance, such as the NRT guidance documents
required under Section 303 (f) and through more informal guidance documents and responses to
inquiries. Many of these guidance documents are issued through EPA's Chemical Emergency
Preparedness and Prevention Office (CEPPO). The mission of CEPPO is, in part, to provide
leadership, build partnerships, and offer technical assistance to LEPCs, SERCs, and communities on
the implementation of EPCRA requirements.
EPA could, as needed and appropriate, provide guidance on how to implement effectively
the following provisions that are the responsibility of SERCs and LEPCs and which could be used
242
-------
to promote environmental justice. In some cases, EPA has akeady issued relevant guidance and
could review the guidance for possible amendments. See, e.g., NRT-1A Criteria for Review of
Hazardous Emergency Plans (1988) [hereinafter "NRT-1A"] (guidance to regional response teams
for the review of LEPC emergency plans). In addition, CEPPO has provided grants to 47 states and
21 Tribes since 1990 for specific projects in chemical emergency planning and accident prevention.
See U.S. EPA Chemical Emergency Preparedness and Prevention Office, EPA's Chemical
Emergency Preparedness and Prevention Tribal Grants: Grant Products You Can Use, available at
http://www.epa.gov/swercepp/pubs/product.html (last modified April 23,1999). It may also be
possible for EPA to consider environmental justice factors in determining grant awards or to
condition grants in a manner that would further promote environmental justice goals and support
low-income communities and communities of color.
A. SERC Procedures for Public Requests
Section 301(a) requires SERCs to establish procedures for receiving and processing
certain types of requests for information from the public. The procedures must include the
designation of an official to serve as a coordinator for such information. 42 U.S.C. § 11001 (a).
B. LEPC Appointments
Section 301(b) requires SERCs to appoint members to LEPCs for each emergency planning
district. Each committee must have a range of interests represented, including community groups.
Committee rules must include provisions for public notification of committee responses to public
comments and distribution of emergency plans. 42 U.S.C. § 11001(b). The LEPC must also
establish procedures for receiving and processing requests from the public for information under
specific sections of the Act, including Section 304 (emergency notification requirements) and
Section 312 (emergency and hazardous chemical inventory form tier II information requirements).
42 U.S.C. §11001(c).
C. LEPC Emergency Plans
Section 303 requires LEPCs to complete emergency plans and review the pkns every year
or more frequently. 42 U.S.C. § 11003. This section contains a list of the required contents of local
pkns, and requires LEPCs to evaluate resource needs with respect to plans and to recommend
additional resources needed. 42 U.S.C. § 11003(b)-(c). The section also provides for SERCs to
review the LEPC plans, and provides that regional response teams may review and comment on
emergency plans or other issues related to the preparation, implementation, or exercise of such plans
upon request of LEPCs. 42 U.S.C. § 11003(e)-(g). See also NRT-1 A.
D. Petitions to Modify SERCs
Section 301(d) provides that SERCs may revise their designations of emergency planning
districts and appointments to LEPCs, as they deem appropriate. Interested persons may apply to
SERCs to modify the membership of a LEPC. 42 U.S.C. § 11001 (d).
243
-------
V. ENFORCEMENT
EPCRA contains several enforcement and penalty.provisions. For the most part, these are
typical environmental enforcement statutory provisions and, therefore, the same considerations
apply with respect to taking environmental justice into account in enforcing EPCRA as apply to
most of the environmental statutes. EPCRA does include provisions not commonly found in the
environmental statutes that allows health professionals to take enforcement measures in certain
circumstances. EPCRA also includes citizen suit provisions that allow citizens to bring legal actions
against regulated entities and EPA. For a fuller discussion of enforcement authorities for promoting
environmental justice, see Chapter 5.
A.
Penalties
EPCRA Section 325 (a) authorizes EPA to order a facility owner or operator to comply
with certain provisions of the Act and to collect civil penalties in United States District Court of not
more than $25,000 for each day in which a violation occurs or failure to comply continues. 42
U.S.C. § 11045(a).
Section 325(b) authorizes civil penalties of not more than $25,000 per violation to be
assessed by EPA for violations of the emergency planning notification provisions of the Act
(Section 304). 42 U.S,C. § 11045(b). In determining penalty amounts, EPA must take into account
the nature, circumstances, extent, and gravity of the violations. With respect to the violator, EPA
must consider the ability to pay, any prior history of violations, the degree of culpability, economic
benefit or savings resulting from the violation, and such other matters as justice may require. Id.
This subsection also authorizes Class II administrative penalties, actions in United States District
Court to assess and collect penalties, and criminal penalties for violations of the emergency
notification provisions of the Act. Id.
Section 325 (c) authorizes civil penalties in an amount not to exceed $25,000 for each
violation against any person, other than a governmental entity, for violations of reporting
requirements under Section 312 (emergency notification reporting requirements) or Section 313
(toxic chemical release form reporting requirements). 42 U.S.C. § 11045(c). This section also
authorizes penalties in an amount not to exceed $10,000 for violations of any requirement of Section
311 (material safety data sheet reporting requirements) and Section 323(b) (provision of information
to doctors and nurses) and for failure to furnish to EPA information required under Section
322(a)(2) (trade secret claim information). EPA may assess penalties by administrative order or by
bringing an action in United States District Court. Id.
B. Special Enforcement Provisions for Health Professionals
Section 325 (e) provides for procedures by health professionals whenever any facility owner
or operator required to provide information under Section 323 (provision of information to health
professionals, doctors, and nurses), with respect to the specific identity of a chemical, fails or refuses
to provide such information. Health professionals may bring an action in United States District
Court to require an owner or operator to provide the information. 42 U.S.C. § 11045(e).
244
-------
c.
Citizen Suits
Section 326 authorizes any person to commence a civil action on his own behalf to enforce
certain provisions of the Act. The statute is specific about the provisions that can be enforced
through citizen suits. Actions may be brought against owners and operators of facilities for failure
to submit follow-up emergency notices, material safety data sheets, inventory forms containing tier I
information, or toxic chemical release forms. 42 U.S.C. § 11046.
Citizen suits may be brought against EPA for failure to: (1) publish an inventory form to be
used by owners and operators; (2) respond to a petition to add or delete a chemical under the toxic
chemical release form reporting provisions; (3) publish a toxic chemical release form; (4) establish
the national toxic inventory computer database required under section 3130; (5) promulgate trade
secret regulations; (6) or render a decision in response to a petition for disclosure of a specific
chemical identity that has been claimed as a trade secret. 42 U.S.C. § 11046. Actions may also be
brought against state governors, SERCs, or EPA for failure to provide a mechanism for public
availability of information. This section also provides authority for state and local governments,
SERCs, and LEPCs to bring civil actions against owners and operators of facilities for certain
violations of the Act. The statute contains venue, notice, diligent prosecution, and other standard
citizen suit provisions. Id.
VI. INFORMATION GATHERING (RESEARCH, MONITORING,
AND REPORTING)
EPCRA imposes several types of reporting requirements on owners and operators of certain
facilities. Some of the reporting requirements are focused on emergency planning and require
facility owners and operators to notify local authorities prior to an emergency that they produce, use,
or store certain types of chemicals. Similar provisions require facilities to submit detailed
information to local and state authorities about the chemicals they produce, use, or store, including
material safety data sheets, chemical lists, and hazardous chemical inventory forms. EPCRA also
contains reporting provisions for accidental releases of certain chemicals. Finally, EPCRA requires
facilities to report to EPA the annual amount of toxic chemicals they release into the environment,
either routinely or as a result of accidental releases. This information comprises the toxic release
inventory which is available to the public in an EPA database that can be accessed on the EPA web
site. See U.S. EPA, Toxic Release Inventory: Community Right to Know, at http://www.epa.gov/tri
(last modified Oct. 19, 2001). The current Toxic Release Inventory toxic chemical list includes 582
listed chemicals and 340 chemical categories.
Some of the reporting programs require information to be submitted directly to state and
local authorities. Accordingly, EPA's ability to promote environmental justice goals in
implementing such provisions is more limited than if the information were reported directly to the
agency. EPA plays an important role, however, in several of these reporting programs through
issuing implementing regulations that outline reporting requirements and carry penalties for failure
to comply and through guidance and implementation tools. See, e.g., NRT-2, Developing A
Hazardous Materials Exercise Program: A Handbook for State and Local Officials (1987); NRT-1A;
Annual Letter from CEPPO to SERCs (Sept. 1*1997); the Computer-Aided Management of
245
-------
Emergency Operations (CAMEO) (computer software that gives first responders tools to better
plan and prepare for chemical accidents).
Some of these guidance and implementation tools akeady consider environmental justice,
such as the CAMEO software program, which EPA promotes for use with LandView software to
display EPA environmental databases and demographic information to support analysis of
environmental justice issues. See U.S. EPA Chemical Emergency Preparedness and Prevention
Office, Compter-Aided Mangement of Emergency Operations, available at
http://www.epa.gov/ceppo/cameo (last modified Oct. 9, 2001). In addition, EPA has conducted
EPCRA compliance assistance and enforcement initiatives relating to the Act's reporting
requirements. See, e.g., U.S. EPA, ENFORCEMENT AND COMPLIANCE ASSISTANCE, FY98
ACCOMPLISHMENTS REPORT (U.S. Environmental Protection Agency, pub., EPA 200-R-99-003,
June 1999) at 53-54 (describing two-year initiative to address EPCRA Section 311, 312, and 313
reporting violations in industrial organic chemical industry).
A. Emergency Planning Notification Requirements
EPCRA Section 302(c) requires owners and operators of facilities with extremely hazardous
substances that meet threshold quantities established by EPA to notify SERCs, and in some cases
LEPCs, by May 1986, that their facilities are subject to the emergency planning notification
requirements of EPCRA. 42 U.S.C. § 11002(c). This section also requires facilities to provide
certain updates after the initial notification. Section 302(d) requires SERCs to notify EPA of
facilities subject to the emergency planning .notification requirements. 42 U.S.C. § 11002(d). EPA
has issued regulations implementing these reporting requirements. 40 C.F.R. § 355.30.
These are general provisions that could serve to assist low-income communities and
communities of color, because they seek to ensure that EPA and local and state authorities are aware
of facilities that use extremely hazardous chemicals that could pose a public health or environmental
threat to surrounding communities if released. Although EPA does not receive the information
directly, EPA could presumably take steps to ensure that SERCs meet their obligations to report to
EPA the information they receive from facilities. EPA could also make available to the public in an
easily accessible, electronic format, the information that it receives from SERCs, in an effort to
increase the availability of emergency planning information to the public, including low-income
communities and communities of color.
B. Emergency Notification Release Reporting Requirements
Section 304(a) requires owners and operators of facilities at which hazardous chemicals are
produced, used, or stored to report releases of certain chemicals to appropriate local and state
authorities. Reporting is required for releases of substances on EPA's list of extremely hazardous
substances that are also required to be reported under the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) Section 103. 42 U.S.C. § 11004(a)(l). Under certain
circumstances, EPCRA also requires reporting of releases of extremely hazardous substances on
EPA's list even when those releases are not subject to CERCLA notification requirements. 42
U.S.C. § 11004(a)(2). This section also requires reporting of certain releases that do not involve
chemicals on EPA's list of extremely hazardous chemicals when the release requires notification
246
-------
under CERCLA. 42 U.S.C. § 11004(a)(3). EPA has issued regulations implementing these reporting
provisions that include penalty provisions for failure to comply. 40 C.F.R. § 355.40.
Section 304(b) sets out the content of and recipients of the notice required when the
emergency notification release reporting provisions apply. The owner or operator of the facility
must notify the LEPC community emergency coordinator for any area likely to be affected by a
release and the state emergency planning commission of any state likely to be affected by a release.
With respect to transportation of a substance or storage incident to transportation, the notice
requirements are met by dialing 911. The statute lists the contents of the required notice, including
the following: (1) chemical name or identity of any substance involved; (2) an indication of whether
the substance is on the EPCRA hazardous substances list; (3) an estimate of the quantity of the
substances released; (4) any known or anticipated acute or chronic health risks associated with the
emergency; and, (5) where appropriate, advice regarding medical attention necessary for exposed
individuals, and proper precautions to take as a result of the release, such as evacuation. 42 U.S.C. §
11004 (b); 40 C.F.R. § 355.40.
Section 304(c) requires follow-up reporting after a release. As soon as practicable, the
owner or operator must provide written follow-up emergency notice setting forth and updating the
information required under section 304(b), including any information with respect to actions taken
to respond to and contain the release, any known or anticipated acute or chronic health risks
associated with the release, and> where appropriate, advice regarding medical attention necessary to
exposed individuals. 42 U.S.C. § 11004(c); 40 C.F.R. § 355.40.
These general provisions can help protect low-income communities and communities of
color, because they aim to ensure that chemical releases that may threaten public health and the
environment are reported appropriately and that related information that could help protect
communities, such as known or anticipated acute or. chronic health risks associated with the
emergency, is communicated to appropriate authorities.
This information is reported directly to state and local authorities. However, EPA could
provide guidance and, as appropriate, include in its implementing regulations, provisions that direct
or encourage state and local authorities to promote environmental justice goals. For example,
guidance or regulations could suggest using proactive approaches to disseminating information to
low-income communities and communities of color, and making information that is collected easily
accessible through electronic and paper copies and telephone hot lines. In addition, EPA is
responsible for setting many of the substantive standards (under EPCRA and CERCLA) that
determine whether reporting to state and local authorities is required, and the agency has authority
to bring enforcement actions for failure to meet reporting requirements.
C. Material Safety Data Sheets
Section 311(a) requires owners and operators of any facility required to prepare or have
available a material safety data sheet for a hazardous chemical under OSHA and its regulations to
submit a material safety data sheet for each such chemical or a list of such chemicals to the
appropriate LEPC, SERC, and local fire department. 42 U.S.C. § 11021 (a). This section also
includes the requirements that apply to reporting the list of chemicals that may be submitted by
247
-------
owners and operators instead of material safety data sheets. Section 311(d) sets out the time frames
for providing material safety data sheets and imposes reporting duties when new information is
discovered concerning an aspect of a hazardous chemical for which a material safety data sheet was
previously submitted. 42 U.S.C. § 11021(d). EPA has issued regulations implementing these
provisions. 40 C.F.R. § 370.21.
These provisions can serve to help protect low-income communities and communities of
color, because they assist local authorities in preparing for chemical release emergencies. These
provisions may also help make available to communities information about the chemicals tha.t are
used at local facilities. This information can be used for a variety of purposes and may help increase
facilities' accountability.
As is the case with chemical release reporting requirements, material safety data are reported
directly to state and local authorities. Here, too, EPA could provide guidance and, as appropriate,
include in its implementing regulations, provisions that direct or encourage state and local
authorities to promote environmental justice goals. The statute also provides authority to EPA to
modify certain reporting requirements under these provisions. See Section 311(a)(2)(B) (providing
authority to EPA to modify the categories of health and physical hazards under OSHA by requiring
information to be reported in terms of groups of hazardous chemicals which present similar hazards
in an emergency). In addition, EPA has the authority to bring enforcement actions to ensure
compliance by facilities in low-income communities and communities of color.
D. Emergency and Hazardous Chemical Inventory Forms
Sections 312(a)-(d) require owners and operators of any facility that is required to prepare
or have available a material safety data sheet for a hazardous chemical under OSHA to prepare and
submit an emergency and hazardous chemical inventory form to the appropriate LEPC, SERC, and
fire department. 42 U.S.C. § 11022(a)-(d). The Act sets out time frames for the various types of
submissions and establishes the required content of the forms. 42 U.S.C. § 11022(a),(d).
Inventory forms are required to provide information in aggregate for hazardous chemicals in
the categories of health and physical hazards as set forth under OSHA. Required information
includes: (1) an estimate of the maximum amount of hazardous chemicals in each category present
at the facility at any time during the preceding calendar year, (2) an estimate of the average daily
amount of hazardous chemicals in each category present at the facility during the preceding calendar
year, and (3) the general location of hazardous chemicals in each category. 42 U.S.C. § 11022(d).
The statute gives EPA authority to modify the categories of health and physical hazards set forth
under OSHA and its regulations by requiring information to be reported in terms of groups of
hazardous chemicals that present similar hazards in an emergency or by requiring reporting on
individual hazardous chemicals of special concern to emergency response personnel. Id.
Section 312(d)(2) provides for the reporting of additional information on each hazardous
chemical present at die facility ("tier II information") upon request of state and local authorities. 42
U.S.C. § 11022(d)(2). Tier II information may include a description of the manner of storage of the
hazardous chemical and an indication of whether the owner elects to withhold location information
248
-------
of a specific hazardous chemical from disclosure to the public. Id. EPA has issued implementing
regulations for these reporting requirements. 40 C.F.R. §370.25.
These provisions are important for environmental justice purposes because they help local
authorities prepare to respond to chemical release emergencies. These provisions also help make
available to communities information about the chemicals that are used at local facilities. This
information can be used for a variety of purposes and may help increase facilities' accountability.
The statute addresses whether and how certain submissions by facilities under these provisions must
be made available to the public. Although EPA does not receive and disseminate the information,
the agency can encourage and assist in actions to further increase the availability and accessibility of
information to low-income communities and communities of color. As discussed earlier, EPA may
also establish the threshold quantities for hazardous chemicals below which no facility is subject to
the reporting provisions of this section, and the agency may bring enforcement actions to ensure
that facilities in low-income communities and communities of color comply.
E.
Toxic Chemical Release Forms
Section 313 requires owners or operators of certain facilities to complete a toxic chemical
release form. The forms are submitted to EPA and to state officials annually on July 1, for releases
during the preceding calendar year. The reporting requirements apply to owners and operators of
facilities that have ten or more full-time employees; are in certain SIC codes; and manufactured,
processed, or otherwise used a toxic chemical listed under the statute in excess of the established
threshold quantities. 42 U.S.C. § 11023(a),(b). The statute sets out the specific information required
on the forms, including (1) the name and location of the principal business activities of the facility,
(2) an estimate of the maximum amounts, in ranges, of the toxic chemical present at the facility at
any time during the preceding calendar year, and (3) the disposal methods or waste treatment
employed for each waste stream and the treatment efficiency typically achieved. 42 U.S.C. §
11023(g). See also, Section 313(f) (threshold for reporting); Section 313(c) (establishing chemicals
subject to reporting requirements); Section 313(b)(2) (providing authority to EPA to apply the
requirements to owners and operators of specific facilities).
According to EPCRA Section 313(h), the toxic chemical release form reporting
requirements are intended, in part, to provide information to the public, including the communities
surrounding covered facilities. 42 U.S.C. § 11023(h). The release forms must be available to inform
persons about releases of toxic chemicals to the environment, to assist governmental agencies,
researchers, and other persons in the conduct of research and data gathering and to aid in the
development of appropriate regulations, guidelines, and standards. Id. Section 313(j) requires EPA
to establish and maintain in a computer database a national toxic chemical inventory based on data
submitted to EPA under the toxic chemical release reporting provisions of the Act. 42 U.S.C. §
11023Q).
The information reported under these provisions, which EPA compiles as the Toxic Release
Inventory (TRI), has been credited with substantial reductions in chemical releases. Environmental
justice goals could be further advanced to the extent that EPA can use its authorities to facilitate the
availability of TRI information. The database required under this section provides a powerful
mechanism for making information available to the public. The statute gives EPA broad authority
249
-------
that presumably could be used to design and maintain the database in a manner that facilitates its use
by residents of heavily impacted communities. While new search tools, such as "TRI Explorer,"
have been developed in recent years, additional opportunities for increasing user friendliness and
proactively disseminating information could be considered. In addition, EPA could consider
addressing the lack of Internet access in some low-income communities. The statute's general
statements about the importance of making information available to the public provides additional
support for EPA's efforts to make reported information available to low-income communities and
communities of color in such a proactive manner.
F. Public Information Regarding Material Safety Data Sheets
EPCRA Section 311(c)(2) requires LEPCs to make available material safety data sheets
upon request of any person. 42 U.S.C. § 11021 (c)(2). If the LEPC does not have the material safety
data sheet requested, the LEPC must request the sheet from the facility owner or operator and then
make the sheet available to the person in accordance with Section 324 which states that documents
must be made available during normal working hours at the location designated by the EPA, state
governor, SERC, or LEPC. Id. EPA has issued regulations implementing this provision. See 40
C.F.R. § 370.30. This provision provides a general tool tha.t could be used by low-income
communities and communities of color to obtain information about hazardous chemicals in their
communities. EPA also has a direct role in implementing this provision by designating the location
of certain documents and can use this authority to ensure that low-income communities and
communities of color can easily review documents at convenient locations.
G. Provision of Emergency and Hazardous Chemical Inventory Forms Tier II
Information
Sections 312(e)(3)(A)&(B) provide that any person may submit a written request to a
SERC or LEPC for tier II information relating to the preceding calendar year with respect to a
particular facility. 42 U.S.C. § 11022(e)(3)(A)&(B). Any tier II information which a SERC or LEPC
has must be made available to a person making a request. If the information is not available, the
SERC or LEPC must request the information from the facility, if the facility stored a hazardous
chemical in excess of 10,000 pounds at any time during the preceding calendar year. If the facility
has not stored a hazardous chemical in excess of 10,000 pounds, the request for information must
include a statement of need. The SERC or LEPC may then request the information from the
facility, but is not required to make such a request. SERCs and LEPCs must respond within 45 days
to requests for tier II information. Id. EPA has issued regulations implementing this provision. 40
C.F.R. § 370.30.
This provision can assist communities by making available detailed information about
specific chemicals at specific facilities. This mechanism is particularly useful if well-publicized to
communities and if assistance is provided in making requests, particularly when a statement of need
is required. In addition, EPA could encourage SERCs and LEPCs, through guidance or regulations,
to make information more readily available through electronic and other means.
250
-------
H; Availability of Material Safety Data Sheets j Forms, and Follow-Up Notices
Section 324(a) states that each emergency response plan, material safety data sheet, list of
chemicals for which material safety data sheets are required under OSHA, inventory form, toxic
chemical release form, and follow-up emergency notice must be made available to the general public
during normal working hours at the location or locations designated by EPA or by the appropriate
governor, SERC, or LEPC. 42 U.S.C. § 11044(a)&(d). Upon request by an owner or operator of a
facility, the SERC and LEPC must withhold from disclosure the location of any specific chemicals
required to be contained in an inventory form as tier II information. Id. EPA has issued
implementing regulations for these provisions. 40 C.F.R. § 370.31.
These are general provisions that facilitate the availability of information about chemicals to
affected communities. EPA could encourage, through guidance or regulations, pro-active
implementation of the provisions by, for example, publicizing the availability of documents and
designating numerous locations for review. For the documents it must make available to the public,
EPA could take the same approach. Notably, the citizen suit provisions of the Act authorize actions
against EPA "for failure to provide a mechanism for public availability of information" in
accordance with this section. 42 U.S.C. § 11046.
I. Notice of Document Availability
Section 324(b) requires that LEPCs must annually publish a notice in local newspapers that
emergency response plans, material safety data sheets, and inventory forms have been submitted.
The notice must state that follow-up emergency notices may subsequently be issued. 42 U.S.C. §
11044(b). The notice must also announce that members of the public who wish to review any plan,
sheet, form, or follow-up notice may do so at the locations designated.
This is a general provision that can promote effective information dissemination to
community residents. EPA's direct role in implementing these provisions may be limited to those
situations in which the agency designates the location of documents, but EPA could use guidance
and regulations, as appropriate, to promote proactive use of this provision by LEPCs.
J. Petitions for Disclosure of Specific Chemical Identity
Under certain circumstances, facility owners and operators are authorized by EPCRA to
withhold certain limited information that would otherwise be required to be reported, if such
withholding is necessary to protect trade secrets. Section 322(c) requires EPA to issue regulations
to implement the provisions of the Act that allow persons submitting information under various
provisions to withhold from their submissions specific chemical identities. 42 U.S.C. § 11042(c).
Section 322(d)&(e) provides that any person may petition EPA for the disclosure of the specific
chemical identity of a hazardous chemical, an extremely hazardous substance, or a chemical claimed
as a trade secret under Section 322. 42 U.S.C. § 11042(d)&(e). Notably, this section states that
nothing in the trade secret provisions of the Act or EPA's accompanying regulations authorizes any
person to withhold information that is required to be provided to a health professional, a doctor, or
a nurse under Section 323. Id.
251
-------
In addition, Section 322(h)(l) requires the appropriate state governor or SERC to identify
the adverse health effects associated with a hazardous chemical or extremely hazardous substance
whose identity is claimed as a trade secret. 42 U.S.C. § 11042(h)(l). The state governor or SERC
must assure that such information is provided to any person requesting it. Section 322(h)(2)
imposes the same duties on EPA with respect to toxic chemicals the identities of which have been
claimed as trade secrets. 42 U.S.C. § 11042(h)(2). EPA must also assure that the information is
included in the national toxic chemical inventory computer database required under Section 313(j).
Id. -
These provisions are relevant for purposes of environmental justice, because it is important
that trade secret claims do not result in the withholding of information about chemicals that could
pose threats in affected communities. The petition authority could be used to help ensure that
specific chemical identity information is not withheld inappropriately from such communities. The
provisions give EPA broad authority in issuing regulations and, therefore, presumably allow it to
consider environmental justice concerns in developing or amending trade secret regulations.
VII. FINANCIAL ASSISTANCE
EPCRA Section 305 (a) provides that United States government officials carrying out
federal programs for emergency response are authorized to provide training and education programs
for federal, state, and local personnel in hazard mitigation, emergency preparedness, fire prevention
and control, disaster response, long-term disaster recovery, national security, technological and
natural hazards, and emergency processes. 42 U.S.C. § 11005(a). Section 305(a)(2) provides that
monies are specifically authorized to be appropriated to the Federal Emergency Management
Agency (FEMA) for grants through 1990 to support state and local government programs and to
support university-sponsored programs that are designed to improve emergency planning,
preparedness, mitigation, response, and recovery capabilities. 42 U.S.C. § 11005(a)(2).
These training programs could be used to help ensure that local and state governments,
particularly resource-limited local governments in low-income communities, receive adequate
training in emergency response. In addition, grants could be provided to universities in low-income
communities and communities of color to support programs designed to improve emergency
planning. Although the statute only specifically authorizes funding for FEMA, the general language
of the statute that refers to Unites States government officials does not seem to preclude EPA
providing such grants. In fact, as discussed earlier, EPA does provide grants to SERCs and Tribes
for EPCRA-related projects and issues training and education documents.
252
-------
-------
THE ENVIRONMENTAL LAW INSTITUTE
For over three decades, the Environmental Law
Institute has played a pivotal role in shaping the
fields of environmental law, management, and
policy domestically and abroad. Today, ELI is an
internationally recognized, independent research
and education center.
Through its information services, training courses
and seminars, research programs, and policy
recommendations, the Institute activates a broad
constituency of environmental professionals in
government, industry, the private bar, public
interest groups, and academia. Central to ELI's
mission is convening this diverse constituency to
work cooperatively in developing effective
solutions to pressing environmental problems.
The Institute is governed by a board of directors
who represent a balanced mix of leaders within
the environmental profession. Support for the
Institute comes from individuals, foundations,
goverment, corporations, law firms, and other
sources.
ENVIRONMENTAL
LAW-INSTITUTE"
1616 P Street, N.W., Suite 200
Washington, D.C. 20036
Telephone: (202) 939-3800
Fax: (202) 939-3868
E-mail: law@eli.org • Web site: www.eli.org
------- |