On January 5, 2022, the United States Environmental Protection Agency (EPA) issued its Draft Environmental Justice Action Plan (Draft EJ Action Plan), which identifies Environmental Justice (EJ) measures that have been or will be implemented by EPA’s Office of Land and Emergency Management (OLEM).  Among other things, OLEM  oversees the Comprehensive Response Compensation and Liability Act (CERCLA or Superfund), the Clean Water Act’s Spill Control and Countermeasures Planning, the Resource Conservation and Recovery Act (RCRA), including  the Underground Storage Tank Program, and the Clean Air Act’s Risk Management programs.  EPA will provide opportunities for public input at several upcoming virtual and in-person engagement events in 2022 and will release another draft of the Action Plan after it has received feedback.

The Draft EJ Action Plan sets out four very broad goals:

1. Strengthening compliance with cornerstone environmental statutes and civil rights laws.
2. Incorporating environmental justice considerations during the regulatory development process.
3. Improving community engagement in rulemakings, permitting decisions, and policies.
4. Implementing President Biden’s Justice40 Initiative.
   

Within these broad goals, EPA identifies specific actions and goals for OLEM programs that, to date, have not received as much EJ scrutiny as more high-profile issues such as safe drinking water and impacts from air emissions.

The primary concern of the Draft EJ Action Plan (as well as all EJ policies as announced by the current and past administrations) appears to be that overburdened communities are being exposed to hazardous substances, chemicals, toxic wastes, etc.(EJ Pollutants) via direct or fugitive releases, spills, discharges at levels that would not be approved or tolerated in communities that are not “overburdened.”  The Draft EJ Action Plan is designed to address the question of whether such potential exposures to EJ Pollutants result from a lack of enforcement or insufficient resources in the overburdened communities.  It will respond to the question through a focus on information and data-gathering regarding a number of programs implemented under the OLEM umbrella, several of which have not been subject to EJ scrutiny previously.  This focus on data-gathering will help shed light on whether there is sufficient and appropriate evaluation and enforcement of these regulatory programs in overburdened communities.  Flagging those regulatory policies might be worthwhile as focused federal attention on those existing programs may go a long way toward protection of the heath and general environmental well-being of overburdened communities.[1] 

Risk Management Plans.  The Risk Management Plan (RMP) regulations implement Section 112(r) of the Clean Air Act.  The RMP Rule requires facilities that use extremely hazardous substances to develop a RMP that identifies the potential effects of a chemical accident; the steps the facility takes to prevent an accident and the emergency procedures should an accident occur.  RMPs are revised and submitted every five years. The Draft EJ Action Plan sets out a goal to strengthen RMP prevention and emergency response requirements in overburdened communities (EJ Communities) with the goal to reduce the frequency and severity of accidental releases in such communities where harms may be more impactful than in rural or less-populated areas.  As a result, those facilities subject to the RMP regulations should anticipate greater scrutiny of their plans, especially where there are “fenceline” EJ Communities that may be impacted by a chemical accident.

Spill Control and Countermeasures Plan.  Facilities that have an aboveground aggregate oil storage capacity greater than 1,320 gallons or a belowground aggregate oil storage capacity greater than 42,000 gallons must prepare a Spill Control and Countermeasures Plan (SPCC Plan).  An SPCC Plan identifies measures that facilities must undertake to prevent and respond to oil spills that could impact navigable waters or adjoining shorelines. The Draft EJ Action Plan indicates that OLEM will analyze past inspection data and compliance patterns in EJ Communities.  OLEM will use the results of these analyses to identify sectors or locations that are more likely to be non-compliant and to focus future inspections and compliance efforts on these areas. As a result,  identified facilities should consider taking a closer look at what is often prepared according to a standard, off-the-shelf template and refine the SPCC Plan to address particular concerns of any nearby EJ Community.

Resource Conservation and Recovery Act (RCRA).  The Office of Resource Conservation and Recovery (ORCR), located within OLEM, will undertake a thorough review to gain a better understanding of the status and locations of  RCRA Treatment, Storage and Disposal Facilities (TSDF) that are permitted and/or undergoing RCRA Corrective Action.  This analysis will include demographic and environmental indicators as well as community characteristics such as economic performance and access to decision-makers. This review will include an analysis and mapping of  approximately 8,000 RCRA facilities, with robust data regarding proximity to EJ Communities.  Although RCRA Corrective Action is known to move at a snail’s pace, additional scrutiny on those locations near EJ Communities could cause the pace of and scrutiny over corrective action to increase.  Further, TSDFs with a history of noncompliance may find themselves subject to increased enforcement.

Superfund.  OLEM focuses both on immediate and long term goals in the Draft EJ Action Plan.  First, EPA OLEM plans to update and issue a policy memorandum that clarifies that EJ should be considered and documented as part of remedy and non-time-critical removal action selection.  Second, EPA plans to focus on the concept of “equitable development” when evaluating Superfund Redevelopment projects. “Equitable Development” has been identified as a concern and goal for EPA; however, other than a focus on gentrification and increased community involvement, its other priorities remain amorphous.  Further, although not directly part of the Draft EJ Action Plan, its goals will be strengthened by EPA’s recent announcement of a $1 billion investment under the Infrastructure Law to  address the backlog of 49 previously unfunded Superfund sites and the speed up remediation at many other active sites across the United States.

Underground Storage Tanks.  The majority of the Underground Storage Tank (UST) Program is delegated to the states and thus does not lend itself to a robust analysis of EJ and UST data. The Draft EJ Action Plan notes that there are nearly 200,000 USTs and 60,000 Leaking Underground Storage Tank (LUST) sites nationwide and nearly 900 USTs and 200 LUSTs on tribal land. EPA will try to determine the impacts of USTs and LUSTs on EJ Communities by undertaking a direct review in Indian communities, where it has jurisdiction, and two to three “pilot” projects in delegated states.  RCRA’s Office of Underground Storage Tanks (OUST) will use the state database information to locate USTs and LUSTs and then use EJSREEN tool to identify EJ Communities.  OUST will work with state UST programs to better understand implications of USTs and LUSTs on these communities, with the potential to recommend programmatic changes and develop a future guidance document that tries to tackle how to integrate EJ into decision-making more broadly with regard to the UST/LUST program. Finally, EPA also plans to migrate UST and LUST data into EJSCREEN, which is not currently included in the eleven environmental indicators.

The Draft EJ Action Plan is already being implemented by EPA, including gathering  data related to many of the programs overseen by OLEM.  However, as with the numerous other broad and wide-ranging EJ goals, the actual impact is unclear.  Further, it is possible that the mid-term elections could have a damper on actual implementation of EPA priorities if both the House and Senate are flipped.  EPA’s successful implementation of these wide-ranging EJ policies and programs requires significant funding and it will be a herculean task to accomplish all of EPA’s EJ goals.  Any change in resources could slow implementation efforts   However, although the actual impacts are unknown, there is always a danger of increased enforcement and scrutiny when a regulatory agency puts a microscope on a regulatory program, especially one that has escaped in-depth scrutiny in the past.  As a result, it is advisable (as always) to review programs and plans to ensure conformance with regulatory requirements, with specific emphasis on confirming that any potential impacts upon sensitive communities have been considered.

Footnotes