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Region 5 Underground Injection Control and Environmental Justice
The Region 5 Underground Injection Control (UIC) program prepared two statements regarding the environmental justice (EJ) aspects of the Envotech permit decision. The first was a portion of the Response to Comments during the public comment period on the draft UIC permit. The second was a response submitted to the Environmental Appeals Board (EAB) following the appeals of the issuance of the Envotech permits.
Contents:
Citizen Comment and Response
Comment 19 - Several commentors stated that there are significant numbers of people in the area who are below the poverty level and that the community is already "burdened" with hazardous waste sites, prisons and other "undesirable land uses". Commentors have argued that the permits should be denied in accordance with Executive Order 12898, which directs federal agencies "To the extent practicable and permitted by law" to limit the "disproportionately high and adverse health and environmental effects of its programs..." that are borne by minority and low income populations.
Response - Although USEPA is developing an Agency-wide strategy pursuant to Executive Order 12898, there is currently no national guidance or criteria available to evaluate environmental justice (EJ) concerns. However, USEPA remains committed to ensuring, to the greatest extent practicable and permitted by law, that the implementation of its regulatory programs does not disproportionately impact minority and low-income communities. Hence, the UIC program has done its best to evaluate the EJ concerns raised by the public with regards to the Envotech permitting action.
While the underground injection regulations [most specifically Title 40 of the Code of Federal Regulations Section 144.31(e)] do not include an "environmental justice factor" among those factors which must be considered by USEPA, the UIC program has conducted public outreach and instituted monitoring requirements that, in part, respond to EJ concerns. The USEPA expanded the opportunity for public involvement in the Envotech permitting decision by holding an informal 2-day public meeting in August, 1993, in Milan, Michigan. Elected officials, environmental groups and the general public were invited to express their concerns and views regarding all aspects of the Envotech UIC applications, including EJ issues. The UIC program has also issued press releases and contacted the media in an effort to disseminate information regarding the Envotech UIC permits as widely as possible.
The UIC program has also instituted stringent monitoring requirements in the Envotech permits, including daily sampling of the wastestream during the first 90 days of operation and weekly sampling thereafter, expanded monthly and annual sample constituent lists and a full [Resource Conservation and Recovery Act] (RCRA) Appendix IX analysis prior to commencing injection.
In addition to providing expanded public involvement and instituting stringent monitoring requirements, the UIC program has conducted a demographic analysis for the area surrounding the well sites, utilizing 1990 U.S. Census Bureau data and information submitted by the public during the comment period. The demographic analysis revealed that 0-20% of the population within a two mile radius of the facility is minority. Also, 0-10% of the population are at or below the poverty level and 0-20% of the households are below $20,000 annual income within the two mile radius. There are no Federal or State Superfund sites other than the [Arkona Road Landfill] (ARL) within a two mile radius of the facility. The demographic analysis shows that the impact of the Envotech UIC permit decisions on minority or low income populations, if any, is minimal.
Based upon the information available at this time, the USEPA can find no basis to deny the Envotech UIC permits. USEPA will fully consider any concerns raised in any future UIC permit decisions regarding Envotech, including EJ concerns, based upon any additional information that may be available in the future, including any national EJ guidance and/or regulations.
Response to Environmental Appeals Board
Petitioners requested that the Board review the permit's issuance pursuant to 40 C.F.R. Section 124.19(a)(2), regarding whether or not Executive Order 12898 represents an important policy consideration which the Board should review. U.S. EPA agrees that the issue of environmental justice raises an important policy consideration. However, U.S. EPA's actions in responding to the environmental justice concerns raised by the citizens do not raise any issue warranting the Board's review.
Petitioners claim that permitting the facility will result in disproportionate risk to the populations highlighted in the Executive Order. Here, U.S. EPA has seriously considered this claim, and has concluded that no disproportionate risk will result from the issuance of the permit. These points are further set forth below.
U.S. EPA responded to the concerns raised during the public comment period in the Response to Comments which was issued along with the final permit. The Response to Comments included a response to the environmental justice concerns raised by the community based upon the information received during the public comment period, and described what U.S. EPA did in an attempt to respond to the environmental justice concerns.
Petitioners allege social or economic impact to the community, unconnected to UIC goals of protecting human health and the environment. As explained in the Response to Comments, and as stated above, under the existing UIC regulations there is no legal basis for rejecting a UIC permit application based solely upon alleged social or economic impacts upon the community. As explained below, however, U.S. EPA conducted an independent analysis in response to the concerns voiced. The [Safe Drinking Water Act] (SDWA) and implementing UIC regulations do not include requirements for incorporating environmental justice into the permitting process. Accordingly, Section 6-608 of Executive Order 12898 states that "federal agencies shall implement the order consistent with, and to the extent permitted by, existing law." UIC does not authorize permitting decisions to be based on public comment that is unrelated to UIC's statutory or regulatory requirements or the protection of human health or the environment.
The Executive Order provides for federal agencies (e.g., U.S. EPA) to identify and address, as appropriate, disproportionately high and adverse human health or environmental effects In issuing a UIC permit, U.S. EPA interprets its responsibility as one of ensuring maximum protection of human health and the environment for all populations. Section 6-609 of the Executive Order states that the Executive Order does not create any right, substantive or procedural, enforceable at law or equity by a party against the United States or its agencies that may be exercised by private citizens. In other words, U.S. EPA's responsibility to address disproportionate risk must be accomplished within the statutory and regulatory structure of SDWA. U.S. EPA Has made every attempt to hear and respond to citizen concerns. U.S. EPA takes seriously the responsibility to address disproportionate risk. U.S. EPA reviewed this claim, and has ensured that disproportionate risk will not be borne by the community.
Section 1-101 of Executive Order 12898, "Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations," directs each federal agency "to the greatest extent practicable and permitted by law," to "make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations..." As stated previously, Section 6-608 of Executive Order 12898 states that this must be done consistent with, and to the extent permitted by, existing law. Although it is not required by regulation, U.S. EPA has attempted to evaluate the impact of issuance of this permit on the community near the well site to determine whether it will have a disproportionately high and adverse human health or environmental effect on the community.
Petitioners object to U.S. EPA's reliance on data relating to a two-mile radius around the deepwell as discussed in the Response to Comments. Here, Region 5 has chosen a two-mile radius for the demographic evaluation of disproportionately high and adverse human health or environmental impacts of UIC facilities upon minority populations and low-income populations, based upon the two-mile migration of deepwell injectate. It was not clearly erroneous for U.S. EPA to rely on the UIC regulation or this guidance in performing a wholly discretionary analysis during this permit proceeding.
In evaluating whether any disproportionate risk is borne by this community, U.S. EPA conducted a demographic analysis for the area surrounding the UIC well, utilizing information including 1990 U.S. Census Bureau data. Although USEPA is developing an Agency-wide strategy pursuant to Executive Order 12898, there is currently no national guidance or criteria available to evaluate environmental justice concerns. However, USEPA remains committed to ensuring, to the greatest extent practicable and permitted by law, that the implementation of its regulatory programs does not disproportionately impact minority and low-income communities. Hence, the UIC program has done its best to evaluate the environmental justice concerns raised by the public with regards to the Envotech permitting action.
In addition to providing expanded public involvement and instituting stringent monitoring requirements, the UIC program has conducted a demographic analysis for the area surrounding the well sites, utilizing 1990 U.S. Census Bureau data and information submitted by the public during the comment period. As stated above, there is currently no national guidance or criteria available to evaluate EJ concerns, therefore, in performing the demographic analysis, the USEPA chose to consider an area of two-mile radius from the proposed wells. A two-mile radius was chosen not because of the two-mile area of review proscribed in the regulations at 40 CFR 146.63, but because of the nature of injection well operations and the effect it has on the surrounding community. Assuming the proper operation of the injection wells will not contaminate underground sources of drinking water, as USEPA's evaluation of the Envotech UIC permit applications has determined, then the negative impacts of a hazardous waste facility on the community include; odors, pollution, noise and increased vehicular traffic.
The proposed injection wells will have dedicated pipelines bringing injectate to the wellhead and there will be no open settling ponds associated with the injection wells that could contribute to odors or air pollution. The leachate is not very volatile so that should a line rupture, the spilled leachate will not cause odor or air pollution problems over an area greater than two miles. The injection wells will not produce an effluent wastestream so release into nearby lakes or streams will not occur. The noise associated with the wells is generated by the injection pumps and will not be heard at a distance of two miles. The wells are for leachate from the ARL and the new landfill if it is constructed, so that vehicular traffic, such as trucks bringing waste to the site are not associated with the injection wells but with the new landfill. Thus, the effect of injection wells on odors, pollution, noise and truck traffic in the community does not exceed two miles from the site. EJ concerns regarding these issues are more correctly addressed during the permitting of the proposed new landfill.
The demographic analysis revealed that no more than 20% of the population within a two mile radius of the facility is minority. Also, less than 11% of the population are at or below the poverty level and less than 21% of the households are below $20,000 annual income within the two mile radius. There are no Federal or State Superfund sites other than the ARL within a two mile radius of the facility. The demographic analysis shows that the impact of the Envotech UIC permit decisions on minority or low income populations, if any, is minimal. This determinination deserves deference from the Board because it is "precisely the kind of issue that the Region, with its technical expertise and experience, is best suited to decide." In re: Chemical Waste Management RCRA Appeals Nos. 95-2 and 95-3 at 17 (EAB, June 29, 1995.) Therefore, U.S. EPA's technical determination was reasonable and thus the demographic analysis should not be the subject of review by the Board.
Should the Board agree with the Petitioner that the area to be reviewed for EJ concerns associated with the injection wells should not be two miles, but rather 10 miles, the USEPA believes that this site still does not qualify as an EJ site. Based on data submitted by the Petitioner, within 10 miles of the site 8% of the population are below the poverty level and 25% of the households are below $20,000 annual income. Within 10 miles of the site there are 10 sites which the Petitioner has labeled "undesirable". These sites include State and Federal prisons, State and Federal Superfund sites and sand and gravel mining operations. The term "undesirable" is qualitative and, lacking national guidance, the U.S. EPA Region 5 UIC program has determined that based upon the information submitted by the Petitioner, the U.S. EPA can find no environmental justice basis to deny the Envotech UIC permits. U.S. EPA will fully consider any concerns raised in any future UIC permit decisions regarding Envotech, including environmental justice concerns, based upon any additional information that may be available in the future, including any national environmental justice guidance and/or regulations. The USEPA expanded the opportunity for public involvement in the Envotech permitting decision by holding an informal 2-day public meeting in August, 1993, in Milan, Michigan. Elected officials, environmental groups and the general public were invited to express their concerns and views regarding all aspects of the Envotech UIC applications, including environmental justice issues. The Board has found, in the only decision to thus far touch on this issue, that affording additional public participation is the only way that U.S. EPA can incorporate the Executive Order in the UIC context. (UIC regulations do not contain the omnibus clause found in RCRA regulations.) See In re Chemical Waste Management RCRA Appeals Nos. 95-2 and 95-3 EAB, June 29, 1995) at 9-10. However, this additional public participation should be added if the Agency finds that environmental justice communities are impacted. In the instant case, U.S. EPA found that environmental justice communities were impacted minimally, if at all. Therefore, the added public participation requirements imposed by the Board would not apply to this permitting action.
However, in an attempt to inform the public, the UIC program has also issued press releases and contacted the media in an effort to disseminate information regarding the Envotech UIC permits as widely as possible. The UIC program has also instituted stringent monitoring requirements in the Envotech permits, including daily sampling of the wastestream during the first 90 days of operation and weekly sampling thereafter, expanded monthly and annual sample constituent lists and a full RCRA Appendix IX analysis prior to commencing injection. These requirements exceed those in any Region 5 UIC permit issued thus far.
In sum, the Petitioners have failed to establish that, U.S. EPA's issuance of a UIC permit to Envotech was based on findings of fact or conclusions of law which are clearly erroneous or on exercises of discretion or important policy decisions that the EAB should review.
Other Documents Relating to the Envotech Decision
- Highlights/Background on Envotech permit decision, environmental justice issues
- Environmental Appeals Board decision on the appeals of the Envotech decision, specifically responding to environmental justice issues