NCD980602163_19981204_Warren County PCB Landfill_SERB C_Inside EPA - Appeals Board May Create Environmental Justice Duties for States-OCR

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"Mary Raguso" <[e-mail]>
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Fri, 4 Dec 1998 08:45:15 -0500
article
This appeared in the 12/4/98 edition of "Inside EPA."
APPEALS BOARD MAY CREATE NEW ENVIRONMENTAL JUSTICE DUTIES FOR
STATES
EPA's Environmental Appeals Board issued a decision Nov. 30 that
appears to
create a new requirement for
states with delegated environmental authority to evaluate potential
environmental justice impacts prior to issuing permits.
State officials, while unfamiliar with the decision at press time,
said the
case could set a precedent for a
significant new burden on state permit procedures.
But EPA sources caution that the case at hand only deals with states
that are delegated under the Clean Air Act to operate the federal
"prevention of significant deterioration" program, which limits its
impact to about a dozen states.
The case, In re: Knauf Fiber Glass, GmbH , deals with a prevention of
significant deterioration (PSD) permit issued by the Shasta County,
CA, Air Quality Management District (AQMD) to Knauf for construction
of a fiberglass manufacturing facility in the City of Shasta Lake.
During the permit review process, the AQMD asked EPA Region IX whether
the facility would raise any environmental justice issues, and EPA
replied that it would not. But the permit was challenged by a number
of petitioners, including one who argued that it did raise
environmental justice concerns because the facility is located in a
low-income area.
The appeals board remanded the permit to AQMD, arguing that there is
no documentation of an environmental justice analysis to support a
decision that the permit would not violate a White House executive
order requiring federal agencies to protect low-income communities
from "disproportionate" exposure to pollution. While the executive
order only applies to federal agencies, the appeals board contends
that since the state is delegated to carry out the federal program,
rather than being authorized to
run its own program, the state is
bound by the same rules that would apply to the federal agency. The
appeals
board ruling asks the AQMD to
"obtain the Region's environmental justice determination," insert it
into the administrative record, make it available for public comment,
and revise the permit if necessary based on the review of the
determination.
The board also remanded the permit for reconsideration of unrelated
issues dealing with AQMD's determination of what emissions control
technology should be required for the facility.
While few sources had seen the EAB ruling, several suggested that it
could have broad impacts on states, creating a new affirmative
requirement that delegated states develop an environmental justice
analysis for every permit before it is issued. These sources also
noted that this requirement could extend beyond the limits of the
Clean Air Act to other laws that states are delegated to run. "This
could have a major impact," one source says, and another suggests that
this case may be the first time that
the EAB has set an affirmative
requirement for states to include environmental justice determinations
in permits.