NCD980602163_2001201_Warren County PCB Landfill_SERB C_US-EPA Memorandum - Analysis of stutory and regulatory authorities-OCR

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY_ " ( ,, ,, t
WASHINGTON, o.c. 20460 ~J-,eh ~lvlS
DEC I 2000
MEMORA.\iDLJM Oi=i=ICE OF
GENE MAL COUNSEL
SuBJECT:
FROM:
TO:
EPA Statutory and Regulatory A.uthorities Cnder \Vhich Environmenw.l Justice
Issues M2y Be .-\ddressed in Pe:mitting
Gary S. Guzy /4 //,, ..
General Counsel
Office of General Counsel (23
Steven ,-\. Herman
Assistant Administrator
Office of :C:nforcement and Compliance Assistance (220 1 A)
Robert Perciasepe
Assistant .-\dministrator
Office of .-\ir and Radiation (6101.4--)
Timothy Fields, Jr.
Assistant .--\dministrator
Office of Solid Waste and Emergency Response (5101)
J. Charles Fox
.--\ssistant Administrator
Office of Water (4101)
t
This memorandum analyzes a significant number of statutory and regulatory authorities
under the Resource Conservation and Recovery Act, the Clean Water Act, the Safe Drinking
Water Act, the Marine Protection, Research, and Sanctuaries Act, and the Clean Air Act that the
Office of General Counsel believes are available to address environmental justice issues during
perrnining. The use of EPA's statutory authorities, as discussed herein, may in some cases involve
new legal and policy interpretations that could require further Agency regulatory or interpretive
action. Although the memorandum presents interpretations of EPA"s statutory authority and
regulations that we believe are legally permissible, it does not suggest that such actions would be
uniformly practical or fe~sible given policy or resource considerations or that there are not
important considerations of legal risk that \vould need to be evaluated. Nor do we assess the
relative priority among these various avenues for ;iddressing environmental justice concerns. We
look forvv·ard to \VOrking with all yo ur offices to exp lore these matters in greater detail.
Prinud 011 Ru:ycltd PiJptr
I. Resource Conservation and RccoYcry .-\ct (RCR...\.)
RCRA. authorizes EPA. to regulate the generation. tr:msport.1tion. tre::nment. storage. and
disposal of hazardous w2.stes and the m::magement and disposal of solid waste. EPA. issues
guidelines and recommendations to State solid waste permitting programs under RCR.-\ sections
l 008/_a). -+OO:. or 4004 and may employ this \·chicle to address environmental justice concerns.
The primary are:i where environmental justice issues have surfaced. ho\vever. is in the permitting
of haz:irdous \\ :iste treatment. stor:ige. and disposal facilities (e.g .. inc i ncrators. fue 1 blenders.
l:rndfills). Pursuant to RCR.-\ section 3005. EP.-\ is authorized to grant permits to such facilities if
they demonstrate compliance \Vith EPA regulai-i<Jns.
l"pon app [ic :1tion by a State. EPA may authorize a St:ite's haz:irdous waste program to
operate in [ieu of the Federal program. :ind to issue and enforce permits. The State·s program
must be equi valent to the Feder:i.l program to obtain and retain authorization. \Vhe:1 EP.-\ adopts
more stringent RCR.A regulations (i ncluding permit requirements), authorized States are required
to revise their programs within one year after the change in the Federal program or within t\VO
years if the ch:mge \vill necessitate a State statutory amendment. 40 CFR § 271.2.l (e). EP.-\ and
most authorized States have so-called "permit shield'" regulations_, providing that. oncf a facil ity
obtains a hazardous \v2.ste permit. it gener::illy c:innot be compelfed to comply \vith aoditional
requirements during the permit" s term.
The scope of EPA· s authori ty to address environmental justice issues in RCR..-\ hazardous
w2.ste pe:-mits was direcI!y addressed by the En\·i ronmental Appeals Board (EAB ) in Chemical
W2.ste \,bna£ement. Inc., 6 E..-\.D. 66. 1995 WL 395962 ( 1995)
<http:/1\vvvw.epa.gov/eab/diskl 1/cwmii.pdf>. The Board found .. that when the Region has a
basis to believe that operation of the facility may have a disproportionate impact on a minority or
low-income-se·gment of the affected communiry. the Region should. as a matter of policy. exercise
its discretion to assure early and ongoing opportunities for public involvement in the permitting
process:· liL at 73. It aiso found that RCR.'-\ ailows the Agency to "tak[e] a more refined look at
its health and environmental impacts assessment in light of allegations that operation of the facility
\Vould have a disproportionately adverse effect on the health or environment of lov.·-income or
minority populations." Id. at 7-+. Such a close evaluation could, in tum. justify permit conditions
or denials based on disproportionately high and adverse human health or environmental effects,
\Vhile "a broad analysis might mask the effects of the facility on a disparately affected minority or
lov.,·-income segment of the community." Id. How·ever. while acknowledging the relevance of
disparities in health and environmental impacts. the Board also cautioned that ·'there is no legal
basis for rejecting a RCR..'-\ permit application based solely upon alleged social or economic
impacts upon the community .. , Id. at 73.
Consistent with this interpretation, there are several RCRA. authorities under which EPA
could address environmental justice issues in permitting:
.--\.. H:izardous \Yaste Tre:itment, Storage and Disposal
I.· RCRA. section 3005(c)(3 ) provides th::it "(e]ach permit issued under this section shall
contain such terms and condi tions JS the A.dministrator (or the State) determ ines necessary
to protect human health and the environment." EPA. has interpreted this provision to
authorize denial of a permit to a facility if EPA determines that operation of the facility
would pose an unacceptable risk to human he::ilth and the environment and that there are
no additional permit terms or cond itions that would address such risk. This "omnibus "
authority may be applicable on a pennit-by-permit basis where appropriate to address the
fo llov,:ing health concerns in connectior1 wi th hazardous \.VJ.Ste management faciliti es that
mJy affect lo w-income communities or minority communities:
a. Cum ulative ris ks due to ex posure fro m pollu~io n sources in addition to the aoolicant
fac ili ty;
b. l :nique exposure pathways and scenario s ( e.g., subsistence:fishers. farming communities):
or
C.
-,
.,
.) .
-+.
Sensitive populations ( e.g .. chil dren \Vith leve ls of Ie:id iii ·the ir blood. individ~als with
poor diets).
RCRA. section 30 13 provides that if the .-\dministrator determines that "the presence of
anv hazardous waste at a facilitv or site at which hazardous waste is. or has heeo stared -< treated. or disposed of, or the release of anv such waste from such facility or site mav
present a substantial hazard to human health or the environment," she may order a faci liry
ov.-11er or operator to conduct reasonable monitoring, testing, analysis. and reporting to
ascert ain the nature and ex.tent of such hazard. EPA may require a perminee or an
applicant to submit information to establ ish permit conditions necessary to protect human
health and the environment. 40 CFR § 270 .1 0(k). In appropriate circumstances. EP A
could use the authority under section 3013 or 40 CFR § 270.1 0(k) to comoel a facilitv
O\.\.l1cr or operator to carry out necessarv studies. so that. oursuant to the "omnibus"
authority, EPA can establish permit terms or conditions necessary to protect human health
and the environment.
RCRA. provides EPA with authority to consider environmental justice issues in
establishing priorities for facilities under RCRA. section 3005(e), and for facilities engaged
in cleaning up contaminated areas under the RCRA. corrective action program, RCR.A.
sections 3004(u), 3004(v), and 3008(h). For example. EPA could consider fac tors such 2.s
cumulative risk. unique exoosure oath\\,.-;:ivs. or sensitive oopubtions in establishing -' ~-"-------_;_;___ . . ' permitting or clean-up priorities .
EPA. adopted the .. RCR.A. Expanded Public Participation" rule on December 11 , 1995 .
See 60 Fed. Reg. 63 4 17. RCR.A. authorizes EPA to explore further whether the RCR..\
perm it public participation process could better address envi ronmental justice concerns by
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expanding public participation in the permitting process (including at haz::irdous wast~
management facilities to be located in or ne::ir lovv-income communities or minority
communities) ..
::,_ In expanding the public participation procedures applicable to RCR.A. facilities. EP . ..\ also
\\Ould have authority to expand the applil.'.ation of those procedures to the permitting of:
(a) publicly owned treatment works. \.vhich are regulated under the Clean \Vater Act; (b)
underground injection \veils. which are regulated under the Safe Drinking \Vater . .\ct: and
(c) ocean disposal barges or vessels. \.vhich are regulated under the Marine Protection
Research and Sanctuaries Act. These fac ilities are subject to RCR.A.'s permit by rule
regu tions, -+0 CFR ~ 270 .60. and are di;med to have a RCR.A permit if they meet
;:-rain conditior.s set out in the regulo.tions. 40 CFR § 270.60.
EP.-\·s revie'-v of State-issued permits provides addition_al opportunities for consideration
of environmental justice concerns. \Vhere the process for a State-issued permit does not
adequately address sensitive population risks or other factors in violation of the authorized
State program. under the regulations EP.-\ could provide comments on these factors (in
appropriate cases) during the comment period on the State's proposed permit on a faciliry-
by-faciliry basis. -+0 CFR § 271.19(a). \Vhere the State it~elfis authorized fo{ RCR...\
"omnibus" authority and does not address factors identified in EPA comments as
necessary to' protect human heaith and the environment. EPA may seek to enforce the
authorized State program requirement. 40 CFR § 271. l 9(e) Alternatively, if the State is
not authorized for "omnibus" authority. EPA may superimpose any necessary additional
conditions under the "omnibus" authority in the federal portion of the permit. These
conditions become part of the faciliry·s RCR.A. permit and are enforceable by the United
States under RCR...;. section 3008 and citizens through RCR.A.. section 7002.
7. RCR...\ section 3019 provides EPA \Vith authority ta increase requirements for applicants
for land disposal permits to provide exposure information and to request that the Agency
for Toxic Substances and Dise:i.se Registry conduct health assessments at such land
disposal facilities.
8. RCR.A. section 3004(0)(7) provides EPA with authority to issue location standards as
necessary to protect human health and the environment. Using this authority. EPA could.
for example, establish minimum buffer zones between hazardous waste management
facilities and sensitive areas (e.g .. schools. areas already with several hazardous waste
management facilities. residential areas). Facilities seeking permits would need to comply
with these requirements to receive a permit.
9. RCR.A..-permined facilities are required under RCRA. section 3004(a) to maintain
··contingency plans for effective action to minimize unanticipated damage from :i.ny
treatment. storage. or disposal of ... hazardous waste." Under this authority, EPA could
require facilities to prepare and/or modi0'· their contingency plans to reflect the needs of
4
environmental justice communities th:1t haYe limited resources to prepare o.nd. or respond
to emergency situations.
I 0. RCR.A. addition::illy provides EPA with Juthoriry to :i.mend its regulations to incorporate
some of the options described in l throu~h 6 o.bove so they become p:i.rt of the more
stringent federal program tho.t authorized St::ites must adopt.
II. Clean \Yater Act (C\VA)
The C\VA. \vas adopted "to restore and ~aintain the chemic::il. physical. :i.nd jiological
integrity of the \'ation·s waters." To achie\·e this goal, Congress prohibited the disch::.rge from a
point source of any pollutant into a \Vater of th e United States unless that discharge co:npl ies 1,\ith
specific requirements of the Act. Compliance is achieved by obt1ining ::ind adhering to the terrr.s
of an :--i'POES permit issued by EPA. or an authorized State pursuant to section -J.02. or a dredge
l!ld fill permit issued by the A.rmy Corps of Engineers or an :i.urhorized State pursuant to section
-J.0-.J..
\'PDES permits must contain: (I) technology-based limit;tions that reflect th £ pollution
reduction achieved through particular equipment or process changes. without refe:-e:1ce to the
.,r·r--=-r-t on the -0 "0 1·v1"n o \\':Ot"'T" an d 1'') wh -"r"' n.,,...,,-,.,,..,, mor0 st-1"na<>nt 11·,,.,1·--.r1'ons -0 '"'-"'S"'"'t1'no tr -.--... -'-• J.,,_...,..., J.:= .... ._.. ,-. • ... ._ ·-----~uJ. .. ". lJ. 1,,,, 1 L.:.:='"' J. .. ,. L..i... L __ ...,;. -..... .1. :::, ..... :....l
k\·e l of control necessary w e::sure that the receiving waters achieve water quality s:2.::dards.
\Vater quality standards consist of ( l) designated uses of the water ( e.g .. public ware:-supply,
propagation of fish, or recreation): (2) criteria to protect those uses including criteria based on
protecting human health and aquatic life: and (3) an antidegradation policy. EPA requires that
States designate all waters for "fishable.'sv,,immable" uses unless such uses are not 2.nainable.
EP . .\ issueS -\V2.ter quality criteria guidance to the States pursuant to CWA section 304(a).
Permits issued under C\VA section ..J.0-.J. authorize the discharge of "dredged or rill
materi3.l" to wate:-s of the Cnited States. The types of activities regulated under section 404
include filling of wetlands to create dry land for development. construction of berms or dams to
create water impoundments. and discharges of material dredged from watef\,Vays to maintain or
improve navigation. Section 404 permits issued by the Corps of Engineers must satisfy two sers
of standards: the Corps' "public interest revie\'/' and the section 404(b)(l) guidelines promulgated
by EPA. The public interest review is a balancing test that requires the Corps to consider a
number of factors. including economics. fish and \vildlife values, safety, food and fiber production
and. public needs and \Velfare in general. 33 CFR § 320.4(a). The section 404(b)( l) guidelines
provide that no permit shall issue if: (I) there are practicable. environmentally less damaging
altenntives. (2) the discha~ge would violate \Vater quality standards or jeopardize threatened or
endangered species, (3) the discharge would cause significant degradation to the aquatic
ecosystem. or(-+) if all reasonable steps ha\·e not been taken to minimize adverse effects of the
discharge. 40 CFR § 230. I 0.
_,
There are sever:il C\V . .\ authorities undc:r \,\,-hich EP . .\ could address environmental justice
issues in permitting:
A. State \Yater Quality Standards
7
States are required to revie'-V their water quality standards every three years and to submit
the results of their reviev,; to EPA. (\\ .. -\ section 303(c)(I). EPA. Regional offices must
appro\ e or disapprove all new or re\·ised State water quality standards pursuant to section
303(c)(3 ). EPA. will appro \e State standards if they are scientifically defe~sible and
protective of designated uses. 40 CFR J 131.11. If a State does not revise a disapprnved
standard. EPA is required to propose and promulgate a re\·ised stand:ird for the State.
Section 303(c )(-+)( . .\). The .-\dministr:itor is also required to propose and promulgate a
ne\v or revised standard for a Stare whenever she determines that such a standard is
necessary to meet the requirements of the Act and the State does not act to adopt an
appropriate standard. CW . .\ section 303(c)(4)(B).
State water quality standards currently are required to provide for the protection of
"existing uses." 40 CFR § I 3 l . l 2(a)( 1 ). These are defined as uses actually anained in the
\Vater body on or after November 28. 1975. 40 CFR § i3 ~.3(e). To the extent that
minority or lov,,·-income populations are. or at any time since 1975 have been. using the
waters for recreational or subsistence fis hi ng. E? . .\ could re interpret the cur.enc
regulations to require that such uses. if actually ,:mained. must be maintained and
protected. The C\VA provides EP . .\ with authority to require, through appropriate means.
that high rates of fish consumption by these populations be considered an "existing use" to
be protected by State water quality standards. Cnder the current regulations, existing
uses cannot be removed.
EPA regulations provide that all waters must be designated for the protection and
propagation of fish. shellfish. and wildlife and for recreation in and on the water
("fishable/sv ... ·immable") unless the State documents to EPA's satisfaction that such uses are
not attainable. 40 CFR §§ 13 l.6(a), 131.1 0(j).
EPA interprets "fishable'' uses under section l0l(a) of the CWA to include, at a
minimum, designated uses providing for the protection of aquatic communities
and human health related to consumption of fish and shellfish. In other words.
EPA views "fishable'· to mean that not only can fish and shellfish thrive in a
waterbody, but when caught. can also be safely e:i.ten by humans (stated in
10/24/00 "Dear Colleague·· letter from Geoffrey H. Grubbs. Director Office of
Science and Technology, and Robert H. \\·:iyl:rnd. III. Director Office of Wetiands,
Oceans and Watersheds). Therefore. EP.-\ currently recommends that in setting
criteria to protect "fishable .. uses, that the State.'Tribe adjust the fish consumption
values used to develop criteria to pro tec t the --tishable .. use, including fish
consumption by subsistence fishers ( L·s EP .-\ 2000 . \,[ethodology for Deriving
Ambient Water Quality Criteria for the Prot~c tio n of Human Health, EPA.-822-B-
00-00-+. ChJ.pter 2.1 ). For example. in dcri\·ing such criteriJ.. srntes or tribes could
select their fish consumption value based on site-specific information or a national
default value for subsistence fishing ( Chapter -+ ).
In the future. EPA. could reinterpret it regulJ.tions to mean that anv human health
use must have a criterion that would protect consumption by subsistence fishers
unless there is a showing that water is not used for subsistence fishing.
, The CW . ..\ provides EP...\ with authority to recommend that State CWA section ~03(c)( I)
triennial reviews of water quality stand~ds consider the extent to which Stare criteria
provide for protection of human health \\.here there exists subsistence fishing. EPA
Regional offices may disapprove a criterion that does not pro\·ide protection to highl:,.-·-
exposed populations. The . ..\dministrator funher has the discretionary authority to
determine that such criteria are necessary to meet the requirements of the C\V.-'\ and then
must promptly propose and promulgate such criteria. ·
-L Consistent with CWA section I0l(e), EP...\ could encourage States to improve public
panicipation processes in the development of State water quality standards through
greater outreach and by translating notices for limited English speaking popul~tions
consistent \Vith Executi\·e Order 12898 on environmental justice.
B. · Issuance of :\PDES Permits
I. Assuming EP . ..\ adopts the interpretation described in paragraph A. l ., above, '\'.PDES
permits issued for discharge to waters where a high level of fish consumption is an
"existing use" should contain limitations appropriate to protect that use. The C\V...\
provides EPA authority to t<lke this approach when it issues NPDES permits in States not
authorized to run the NPDES program. and to object to or ultimately veto State-issued
permits that are not based on these considerations. CW.A. section 402(d).
-:i Consistent with C\VA section l0l(e). \,·here EPA issues NPDES permits. environmental
justice concerns can also be ttlen into account in setting permining priorities and
improving public participation in the permitting process (greater outreach to minority
communities and low-income communities including translating notices for limited English
speaking populations consistent \.Vith Executive Order 12898 on environmental justice).
3. CWA section 302 authorizes EPA to propose and adopt effluent limitations for one or
more point sources if the applicable technology-based or water quality-based requirements
will not assure protection of public heJl th and other concerns. This determination requires
findings of economic capability and a reJsonable relationship benveen costs and benefits.
The A2encv has never used this authorirv. but could evaluate whether this authoritv could -.,, .,. .,,
be used \vith respect to pollutants of concern to minorities or low-income communities.
Prior to adopting such limitations by regubtion, EPA could use its authority under CWA
section 402(a)( I) to incorporJ.te such limitJtions in specific NP DES permits issued by
EP.-\. The Clean Water Act does not ::ippe::ir to provide any genero.1 authority to impose
conditions on or deny permits based on environmental justice considerations that are
unconnected to \vater quality impacts or technology-based limitations.
-1-. Pursuant to CWA section I 04 and otha ::iuthorities. EP.-\ may provide tec hnico.l assis tance
to Indian Tribes, where appropriate. in the de\·elopment of v;ater quality standards and the
is suance of >iPDES permits.
C. CWA Section -rn➔
I. The broadest potential authority to consider environmental justice concerns in the C\V.-\
section -l-0-l-program res ts \Vith the Corps of Engineers, which conducts a broad ''pu bl ic
interest review" in determining 1,vhether to issue a section 404 permit. In evaluat in g the
"probable impacts ... of the proposed ::ictivity and its intended use on the public interest."
th e Corps is authorized to consider. among other things; aesthetics, general environmental
concerns. safety, and the needs and \ve!fare of the peop-Je. 33 CFR § 320 . ..J.(a). This
public interest rev iev.-could include em·ironmental justice concerns .
.., EPA has discretionary oversight authority over the Corps'administration of th~ section
...;.0--1-pro gram (i.e .. EPA comment s on permit appl ications. can elevate Co~s pe::-r:1it
decisions to ·the \V2.shingro n. D. C. le\ el. and c:rn "veto" Corps permit decis ior.s under
sect ion -.W4(c) that would have an unacceptable adve rse effect on "municipal 1,vater
supplies. shell fish beds and fishery areas. wildlife. or recreational areas"). The CW.-\ thus
authorizes EPA to use these authorities to prevent degradation of these public resources
that may have a disproportionately high and adverse health or environmental effect on a
minoritv communirv or low-income communirv. Such effects can be addressed \vhen thev -. ,• .. .. ..
result directly from a discharge of dredged or fill material (e.g .. the filling of a waterbody).
or are the indirect result of the permitted activity (e.g .. the fill will allow cor.struc rio n of an
ind ustrial fac ili ty that will cause water pollution due to runo ff).
III. Safe Drinking Water Act (SDWA)
The SDW.-\ includes two separate regulatory programs. The Public Water Supply
program establishes requirements for the quality of drinking water supplied by public water
systems. This program contains no federal permitting. The Underground Injection Control (CIC)
program establishes controls on the underground injection of fluids to protect underground
sources of drinking water.
Cnder the CIC program, the Administrator must establish requirements for State CIC
programs that 1,vill prevent the endangerment of drinking water sources by underground injection.
EPA has promulgated a se ries of such requirements beginning in 1980. The SOWA also provid~s
that States may apply to EPA for primary responsibility to administer the UIC program . EPA
3
must establish a liIC permitting program in St:1tes that do not seek this responsibility or that fail
to meet the minimum requirements established by EPA.
There are several SOWA authorities under ,\-hich EPA could address environmental
justice issues in UIC permitting:
...\. EP...\-issued Permits
Lnderground injection must be authorized by permit or rule. The SO\VA. provides that
EP . ..\ can deny or establish permit limit$ where such injection may '·endanger"· public
he:ilth. ··Endangerment" is defined to include any injection that may result in the presence
of :1 conr::iminant in :1 drinking w::iter supply that ··may ... adversely affect the he:1lth of
persons."· 40 CFR § 144 .52(6)(1). As a result. in those States where EPA issues permits
and an injection activity poses a special health risk to minority or low-income populations,
the SOW A provides EPA with authority to establish special-permit requirements to
address the endangerment or deny the permit if the endang~rment cannot otherwise be
eliminated. As in its Chemical \Vaste \fanaszement RCRA. permit appeal decision discussed
in Pan I above. the EAB has addressed EPA·s authori,cy to expand public panicipation and
to consider disproponionate impacts in the UIC permirring program. Envored, 6 E.A.O.
260. 281, 1996 WL 66307 (1996) <hnp:·/vvv,w.epa.gov/e:ib/diskl0/envotech.pdf>.
B. Pending regulatory action
The Office of \Vater is currently revising the regulations under this program governing
"Class V" injection wells (i .e., shallow wells where nonhazardous waste is injected). In
determining ,vhich wells to regulate and the standards for those where EPA determines
regulafions are necessary to prevent "endangerment," the SOWA provides EPA with
authority to take into account environmental justice issues such as cumulative risk and
sensitive populations.
C. Other regulatory actions
Like,vise, the SOWA provides EPA with authority to address environmental justice issues
related to potential endangerment of drinking water supplies by injection for all types of
wells. For example, EPA could revise its regulatory requirements for siting Class 1
(hazardous waste) wells to address cumulative risk and other risk-related environmental
. . . J usuce issues.
IV. Marine Protection, Research, and Sanctuaries Act (MPRSA)
The MPRSA. commonly known as the Ocean Dumping Act. 33 USC§ 1-+0l ff..
establishes a permitting program that co\·ers the dumping of material into ocean \Vaters. The
oce:rn disposal of a variety of materials, including sewage sludge. industrial waste. chemical and
biologic:il warfare agents, and high level radio::ictive waste. is expressly prohibited.
EP.--\ issues permits for the dumping of:111 material other than dredged material. 33 U.S.C.
~ 1-1-1:(a). The Army Corps of Engineers issues permits for the dumping of dredged material.
subject to EPA. reviev.· and concurrence. 33 LS.C. ~ 1-1-l 3(a). (:-\.s a pr:ictical maner. EPA. issues
very few ocean dumping permits because the \·ast majority of material disposed of at sea is
dredged material.) EP.--\ also is charged \vith designating sites at which permitted disposal may
take place: these sites are to be located where\·er feasible beyond the edge of the Continental
Shelf. 33 U.S.C. § 141:::(c)(l). .
When issuing MPRSA permits and de:;igno.ting ocean dumping sites, EP . .\ is to determine
\vhether the proposed dumping vvill "unreasono.bly degrade or endanger human heo.lth. \velfare,
amenities. or the marine environment, ecologic:il systems, or economic potentialities." 33 LiSC §
1412(a), (c)(l). EPA also is to take into account .. the effect of... dumping on human he:ilth and
welfare, including economic. esthetic, and recreational values.:'33:U.S.C. § 1412(a)(B). (c)(l ).
Thus. in permining and site designation. EP . ..\ has ample authority to consider such factors as
impacts on minority or lov.·-income communities and on subsistence consumers of sea food that
would result from the proposed dumping. In addition. the :vIPRSA provides specific~lly that
EP . .\ is to consider land-based altemati\·es ,o ocean dumping and the probable impact of requiring
use or 1hese alte::-narives "upon cor.side:-:iti ons J.ffecting the public interest." 33 L; S.C. §
l-+12 (a)(G ). This authorizes EP . .\ to take imprrcts on minority populations or low-income
popul2.tior.s into account in evaluating alternative loc:nions and methods of disposal of the
material that is proposed to be dumped at sea.
V. Clean Air Act (CAA)
There are several CAA authorities under \vhich EPA could address environmental justice
issues in permitting:
A. :'\'ew Source Review (NSR)
NSR is a preconstruction permining program. If new construction or making a major
modification will incre~se emissions by an amount large enough to trigger :'JSR
requirements, then the source must obtain a permit before it can begin construction. The
~SR provisions are set forth in sections l 10(a)(2)(C). 165(a) (PSD permits). l 72(c)(5)
and 173 CNSR permits) of the Clean Air Act.
Lncier the Clean Air Act. states ha\·e primary responsibility for issuing permits, and they
can customize their NSR programs within the limits of EPA regulations. EPA ·s role is to
approve State programs, to review. comment on. and rake any other necessary actions on
draft permits. and to assure consistency with EPA 's rules, the state's implementation plan.
and the Cle.:i.n .-\ir :.\ct. Citizens also pl:..iy J role in the permitting decision. and must be
afforded an opportunity to comment on e::ich construction permit before it is issued.
The NSR permit program for major sources has two different components-one for are.:i.s
\vhere the air is dirty or unhealthy. and the other for are::is \vhere the air is cle::iner. L"nder
the Clean Air Act. geographic are::is (e.~ .. counties or metropolitan statistical are::is) are
designated as --anainment'. or '·nona.tt::iinment"· \Vith the r-iational Ambient Air Quality
St:mdards (:,;A.-\QS)-the ::iir quality st::ind::irds which :ire set to protect hum:rn health and
the :::nvironment. Permits for sources loc::ited in attainment (or unclassifiable) areas are
c::ilkd Prevention of Significant Deterioration (PSD) permits and those for sources loc:ned
in nonattainment areas are c::illed \:SR permits .
. -\ r;-;ajor diffrrence in the ,\VO progr::ims is that the control technology requirement is more
stringent in nonanainment are.1s J.nd is called the Lowe~r Achievable Emission Rate
(L-\ER). On the other han1. in attainment or PSD areas. a source must apply Best
An.ilable Control Technology (B.-.\CT) :ind the statute-allo\,vs the consideration of cost in
weighing BA.CT options. Also. in keeping \vith the goal of progress to'vvard anaining the
national air quality standards, sources in nonattainmer1t areas must always provide or
pur:h2.se .. offsets"'-decreases in emissions which compen~,1te for the increase£ from the
ne'.v source or modification. In att.:i.inment are.:i.s. PSD sources typically do not need to
obt2.in offsets. However. PSD does require an air quality modeling analysis of pollution
:i:.r exceeds allowable le\·els: this impact must be mitig,ned. Sometimes, these mitigation
me2.sures can include offsets in PSD are:is.
1. L"nder the Cle:rn A.ir Act. section l 73(a)(5) provides that a nonattainment NSR permit
may oe issued only if: "an analysis of alternative sites. sizes. production processes, and
envir-onrnental control techniques for such proposed source demonstrates that benefits of
the proposed source signific::intly oun\·eigh the environmental and social costs imposed as
a result of its location, construction. or moditicJ.tion." For example. this provision
authorizes consideration of siting issues. Section ! 65(a)(2) provides that a ?SD permit
may be issued only after an opponuniry for a public hearing at 'vv"hich the public can appear
and provide comment on the proposed source. including "alternatives thereto" and "other
appropriate considerations." This authority could al!O\V EPA to take action to address the
proper role of environmental justice considerations in PSD/NSR permitting.
2. In addition to these statutory provisions. EPA directly issues PSD/NSR permits in certain
situations ( e.g., in Indian country and Outer Continental Shelf areas) and, through the
EAB. adjudicates appeals of PSD permits issued by States and local districts with
delegated federal progrJ.ms. In such permit and appeal decisions, it is possible to consider
en\·ironmenrn.l justice issues on a case-by-case basis. \Vithout waiting to issue a generally
applicable rule or guidance document. EPA. already considers environmental justice issues
on a case-by-case basis in issuing PSD permits consistent \Vith its legal authority.
3. The EPA. Environmental Appeals Board (EAB) has addressed environmental justice issues
in connection with PSD permit appeals on several occasions. The EAB first addressed
environmental justice issues under the CA .. .\ in the ori2inal decision in Genessee Po'-ver
(September 8. 1993 ). In that decision the EAB stated that the C..\A did not allow for
consideration of environmental justice :ind siting issues in air permitting decisions. In
response. the Office of General Counsel tiled a motion for clarification on beh.:ilf of the
Office of Air and Radiation (OAR) and Region V. OGC pointed out. among other things.
that the C..\ . .\ requirement to consider .1lternatives to the proposed source. and the broad
statutory definition of .. best available control technology·· (BACT). provided ample
opportunity for consideration of en\·ironmental justice in PSD permitting: In .:in amended
opinion crnd order issued on October 22. ·i993, the EAB deleted the controversi:d
language but did not decide whether it is permissible to address environmental just ice
concerns under the PSD program. -+ E .. ..\.D. 832. 1993 \VL -1-8-1-880,
<hnp://\.V\.Vw.epa.gov/eabidisk-1-/genesee.pdf>. However, in subsequent decisions.
Ecoelectrica, 7 E.A.D. 56, 1997 WL 160751 ( 1997) ·
<http://v,,vw.epa.gov/eab/disk 11/ecoelect.pdf.>, and Puerto, Rico Electric Power
Authoritv, 6 E .. ..\.D. 253, 1995 WL 79-1--l-66 ( 1995)
<http://'vvv..w.epa.gov/eab/disk9/prepa.pdf.>, the EAB stated that notwithstanding the lack
of formal rules or guidance on en\·ironmental justice, EP;:\; could address envitonmental
j ustice issues. In 1999 in Knauf Fiber Glass, 8 E.A.D. PSD Appeal Nos. 98-3 through 98-
20, 1999 \VL 642~5 (Feb.-+. 1999 ) <hnp ://v,lv .. w.epa.govieab/diskl 1/knauf.pdf>. the E . ..\B
remanded a PSD permit ro the delegated permitting authority (the Shasta Counr:,· . .\ir
Quality Management District) for failure to provide an environmental justice 2.nalysis in
the administrative record in response ro comments raising the issue.
4. In the 1990 CAA Amendments. Congress provided that the PSD provisions of the Act do
not apply to hazardous air pollutants (H . ..\Ps), see CAA section l l 2(b)(6), so the role of
hazardous air pollutant impacts as en\'ironmental justice issues in PSD permining is not
straightforvvard. Thus. BA.CT limits are not required to be set for HAPs in PSD per.nits.
However, the Administrator ruled prior to the 1990 Amendments that in establishing
BACT for criteria pollutants. alternative technologies for criteria pollutants could be
analyzed based on their relative ability to control emissions of pollutants not directly
regulated under PSD. EPA believes that the 1990 Amendments did not change this
limited authority, and EPA believes it could be a basis for addressing environmental justice
concerns. In addition, EPA may ha\·e authority to take into account -and to require
States to do so in their PSD permitting -effects of HAPs that are also criteria pollutants.
such as VOCs.
B. Title V
Title V of the CAA requires operating permits for stationary sources of air pollutants and
prescribes public participation procedures for the issuance. significant modification. and
renewal of Title V operating permits. L:nlike PSD/NSR permitting. Title V generally does
not impose substantive emission control requirements, but rather requires all applicable
!.
requirements to be included in the Titk V operating pennit. Other permining programs
may co-exist under the authority of the CA.-\. such as those in State implementation plans
(SIPs) approved by EPA.
Because Title V does not directly impose substantive emission control requirements. it is
not clear \vhether or hov,; EPA could rake environmental justice issues into account in
Title V permitting -other than to allow public participation to serve as a motivating factor
for applying closer scrutiny to a Title V permit's compliance with applicable C.-\A.
requirements. EPA. belie\·es. however. that in this indirect way, Title V can. by providing
significant public participation opportuµities. serve as a vehicle by \vhich citizens can
address environmental jus,ice concerns that arise under other provisions of the C.-\.-\.
L:nder the ~O CFR Pan 70 i71 perwining process. EPA. h:is exercised its CA.-\ authority to
require extensive opportunities for public participation in permitting actions. State
permining authorities also have the flexibility to provide additional public participation.
3. Other permitting processes under the C.-\.-\ such as SIP permitting programs can include
appropriate public panici;:,ation me2.sures. and these can be used to promote consideration
of environmental justice issues . For example. EPA regulations require that ·'r/iinor ;\J"SR
programs .. in SIPs provide an oppor:t:niry for public comment prior to issuance of a
per771it (-+0 CFK § 51.161 (:;;(:2 )). i"\:ot e. ho \vever. that many state progr211:s do ::1ot a,
present meet this requirerr.e:2t.)
C. Solid \Vaste Incinerator Siting Requirements
The CAA provides specific authority to EPA to establish siting requirements for solid
waste incinerators that could include consideration of environmental justice issues. C...\.A.
section 129(a)(3) provides that standards for new solid waste incinerators include. "siting
requirements that minimize. on a site specific basis. to the maximum extent practic:ible,
potential risks to public he:::.lth or th~ environment." These would be applicabl-=
requirements for Title V purposes. The new source performance standards (NSPS) for
large municipal waste combustors (-+0 CFR pan 60, subpan Eb) and
hospital/medical/infectious waste incinerators ( 40 CFR part 60, subpart Ee) both currently
contain such requirements. In the large municipal waste combustor NSPS, the specific
requirement in section l 29(a)(3) w2.s incorporated and requirements for public notice, a
public meeting and consideration of J.nd response to public comments were added.
However. to reduce the burden on the much smaller entities which typically O\vn and
operate hospital/medical/infectious waste incinerators, that NSPS only incorporates the
specific section 129(a)(3) requirement. EPA is subject to a court ordered deadline for
taking final action on NSPS for commercial/industrial waste incinerators, and h2.s
proposed to follow the approach to the siting analysis adopted in the
hospiw.1/medical/infectious waste >iSPS in that rule.
13
D. 40 CFR Part 71 Tribal Air Rule
The Part 71 federal operating permit rule establishes EPA ·s Title V operating permits
program in Indian country. Where sources are operating within Indian country, and
Tribes do not seek authorization to implement Title V programs. the Part 71 rule clarifies
that EPA will continue to implement federal operating permit programs. These Title V
permit programs are limited to Title V and other applicable federal CA.-\ requirements and
are not comprehensive air pollution control programs. Thus. the opportunities fo r
addressing em·ironmental justice issues may be similar to those discussed in section B
above. ,
cc: .\m:hael McCabe
vBarry Hill
Lisa Friedman
Susan Lepow
Alan Eckert
James Nelson
, :
l