On October 12, 2022, the U.S. Environmental Protection Agency’s (EPA) Office of Environmental Justice and External Civil Rights released a letter of concern outlining its initial analysis and recommendations in response to three administrative complaints from NGO alleging that the Louisiana Quality Department of Environment (LDEQ) and the Louisiana Department of Health (LDH) violated Title VI of the Civil Rights Act of 1964 (Title VI) and regulations EPA’s Non-Discrimination Policy at 40 CFR Parts 5 and 7. Title VI prohibits intentional discrimination and acts that have a disparate impact. impact on the basis of race, color or national origin.
The EPA investigation found “significant evidence” that the actions and inactions of LDEQ and LDH resulted in “disparate negative impacts” on black residents of St. John the Baptist Parish, St. James and the so-called Industrial Corridor, sometimes also referred to as “Cancer Alley”. The EPA further raised concerns that LDEQ and LDH programs related to air pollution control and health risk mitigation and communication could have a negative and disparate impact on Black residents who live or attend school near a Denka facility, a proposed facility in Formosa, and in the Industrial Corridor. . To address these issues, the EPA recommended that LDEQ and LDH conduct several cumulative impact analyses, implement a formal Environmental Justice (EJ) process, and set limits for future Industrial Corridor air permits.
Although the letter of concern was preliminary and not a final action by the agency, its impacts will likely be significant for the industry. Some of the main takeaways are:
- Title VI will serve as a powerful mechanism to challenge state environmental agency permitting decisions and the implementation of environmental programs in the future – even when they are basic, these programs and permits implement federal standards and have been authorized by the EPA for decades. To date, EPA’s focus on EE and civil rights has focused on issuing agency guidance in memoranda, provisional permit FAQs, and “toolkits.” legal. This decision, along with recent proposals to deny a SIP, shows that the EPA is serious about its enforcement of these guidelines. Industry should now be ready to complete their permit applications taking into account Title VI considerations.
- New tools, guidance, and scientific findings from the EPA will be used to assess EJ permits and risks. Throughout the letter, the EPA refers to EJSCREEN, NATA, several controversial IRIS hazard values for ethylene oxide and chloroprene, and its recent interim permitting guidelines as a basis. of its findings – although none of them have been subject to judicial review and all are non-binding advice.1Industry should familiarize themselves with these tools and guidance and consider how the EPA and NGOs can assess their permits and projects.
- The EPA’s view on EJ mitigation is open.The EPA’s recommendations are significant in scope and involve relocating a school, hiring a professional risk communicator, holding public meetings about extra-regulatory risks, and extensive impact assessments. aggregation of pollutants, and the development of “regional” pollutant standards for carcinogens. When assessing facility-specific risks, industry should consider a wide range of opportunities to offer as potential solutions.
The legal basis for the EPA’s letter and its recommendations are questionable and will no doubt be challenged, but the new clearance standard under the Biden administration has been clarified. Industry, especially those with pending air permit applications, renewals or new projects, should consider EJ considerations and impacts well in advance and as an integral aspect of their technical analysis. substance and deadlines for implementation. Find additional details about the letter of concern here.
B&D’s environmental justice practice has been at the forefront of EE issues for decades, drawing on the specialized experience of the private sector and government. We represent multinational corporations and municipal clients in complex litigation and large-scale project development, ethics and corporate governance, environmental compliance and investigations related to EJ law and title enforcement. VI of the Civil Rights Act of 1964. For more information, please contact the authors.
1 EJScreen is an Environmental Justice Mapping and Screening Tool that provides EPA with a nationally consistent data set of environmental and demographic indicators that the agency uses as a preliminary step when reviewing environmental justice. ‘EJ in certain situations. The National Air Toxic Substances Assessments (NATA) or AirToxScreen are designed by the EPA as a screening tool for state and local governments to identify pollutants, emission sources, and potential health risks . The EPA’s Integrated Hazard Information System (IRIS) develops human health assessments on certain chemicals to provide information about a chemical’s hazards and quantitative toxicity values for carcinogenic effects. and not cancerous on health.
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