Earlier this quarter, the Environmental Protection Agency (EPA) released an updated legal “toolbox” to further the Administration’s goal of achieving environmental justice (EJ) in historical “EJ Communities.”[1] The White House Environmental Justice Advisory Council defines “EJ Communities” as:

geographic location[s] with significant representation of persons of color, low-income persons, indigenous persons, or members of Tribal nations, where such persons experience, or are at risk of experiencing, higher or more adverse human health environmental outcomes.

While originally published in 2011, this is the toolbox’s first update since its publication. The updated toolbox is significantly longer than the original toolbox and includes a new chapter dedicated to civil rights in federal assistance programs. The toolbox reflects recent statutory changes, and evaluates how the EPA can use the framework of the existing major environmental laws—the Clean Air Act (CAA), Clean Water Act (CWA), Safe Drinking Water Act (SDWA), Resources Conservation and Recovery Act (RCRA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)—to address EJ.

This article examines which of the “EJ tools” the EPA likely will use when issuing new permits or permit renewals, as well as when monitoring facilities for compliance, and assessing facility siting. As businesses located in or near EJ communities prepare for heightened scrutiny from the EPA, they should address any environmental compliance issues and prepare for enhanced public participation in their permitting processes.

Permitting

The toolbox includes an in-depth discussion of how the EPA will use its permitting authorities under the CWA, CAA, and RCRA to address EJ. Under its CWA authority, the EPA may institute a new requirement that facility compliance history be included in public notice requirements for National Pollutant Discharge Elimination System (NPDES) permits.[2] Moreover, the EPA may request public comments on whether discharges from facilities with industrial NPDES permits disproportionately impact EJ communities. Likewise, the EPA may include conditions in permits covering underground injections to ensure that drinking water in EJ communities is protected. The EPA may also look to broaden its use of NPDES permits to cover additional storm-water point sources that impact EJ Communities.

Businesses with water discharge permits should evaluate their proximity to EJ communities, and evaluate the impacts of their discharges on those communities as they apply for new permits and permit renewals. Additionally, businesses with a negative compliance history should expect that EJ Communities will participate in the permitting process. Businesses that are undergoing enforcement now or in the future should consider impacts to their compliance history moving forward, when negotiating consent orders or challenging violations in administrative or judicial settings.

Under the CAA, the toolbox recommends that the EPA prioritize the review of permits for air emissions sources in EJ communities, and again allow more public participation in the review process. Likewise for construction of new sources in EJ Communities under the New Source Review program,[3] the toolbox recommends that the EPA consider EJ when running the cost-benefit analysis for new or modified stationary sources in nonattainment areas.[4] Businesses applying for these permits should anticipate public participation into their permitting process, and consider proactively including any nearby EJ communities in the process.

To further protect EJ communities, the EPA may add permit conditions that incorporate EJ concerns in RCRA permits. For example, the EPA may add permit conditions to require permit holders to consider the cumulative impact of multiple pollution sources on EJ communities, even if they are only one such source. Companies with RCRA permits should evaluate their proximity to EJ communities, their individual impacts to those communities, and whether other nearby facilities are likely also impacting the EJ community, causing a cumulative impact.

Monitoring

The toolbox provides multiple avenues for addressing EJ through pollutant monitoring under the CAA and RCRA. Under the CAA, the toolbox recommends that EPA revise nationwide ambient air monitoring criteria to encompass the concerns of disproportionately affected communities.[5] Additionally, the toolbox recommends that the EPA advise air agencies who are installing new air quality monitors to consider if the monitors will be able to evaluate exposures to vulnerable populations.

Under RCRA, the EPA can order a facility owner to conduct reasonable monitoring, testing, and analysis when the presence of hazardous waste at a facility would present a substantial hazard to human health and the environment if released.[6] The toolbox proposes that this data should be included in the permitting conditions for hazardous waste facilities. For these reasons, businesses with air permits and hazardous waste permits should prepare for more stringent monitoring requirements.

Siting

The toolbox also addresses siting requirements under the CAA and RCRA.[7] Under the CAA, the EPA has the authority to establish siting requirements for new solid waste incinerators.[8] The EPA proposes to use these siting requirements and determine whether new incinerators’ air emissions would disproportionately affect a specific demographic or community.

Under RCRA, the EPA has the authority to issue location standards for hazardous waste facilities, as is necessary to promote public health.[9] The toolbox recommends revising these standards to provide for buffers between hazardous waste facilities and community facilities and residential areas.

Civil Rights

The updated toolbox includes a new chapter on civil rights in federal assistance programs. In this chapter, the EPA highlights the existing anti-discrimination requirements imposed on recipients of federal funding.[10] The EPA may report grant recipients that violate this policy to the External Civil Rights Compliance Office (ECRCO). Companies that receive grant or other funding from the federal government should audit the programs funded by that money to ensure compliance with the federal nondiscrimination statutes and regulations.

Conclusion

In its updated toolbox, EPA outlines the existing statutes that the EPA and state environmental regulators may use to pursue EJ. One of the main tenants of the toolbox is increased public participation in permitting, standard-setting, and monitoring for pollutants. To avoid issues in the permit application process, businesses should consider proactively engaging EJ communities through public outreach. Companies should also evaluate their compliance with environmental regulations, and ensure that their business plans address the potential effects of their operations on disadvantaged communities.

Kelley Drye 2022 summer associate Sophia Miller contributed to this advisory.

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