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In re: Envotech, L.P. Milan, Michigan
Permit Nos. MI-161-1W-0002, MI-161-1W-0003
United States Environmental Protection Agency
February 15, 1996
Note: this file is an excerpt from the full Environmental Appeals Board (EAB) decision containing only those portions of the decision related to environmental justice. To view the complete EAB decisionon this case, please see the EAB UIC Permit Appeals web site.
HEADNOTE: [*1]
Syllabus
1. Thirty-six petitioners challenge U.S. EPA Region V's decision to issue two Class I Underground Injection Control (UIC) permits to Envotech Limited Partnership ("Envotech"), pursuant to Safe Drinking Water Act Sections 1421(b) and 1422(c), 42 U.S.C. § § 300h(b) and 300h-1(c). The permits authorize Envotech to drill, construct, test and operate two hazardous waste injection wells in Washtenaw County, Michigan. The purpose of the wells is to dispose of hazardous leachate from a landfill being remediated by Envotech pursuant to Michigan law. The petitions raise the following allegations as grounds for review of the Region's decision: underground injection is an "unsafe and unproven" technology; the local community strongly opposes the permits; Envotech allegedly has a poor history of environmental compliance; Envotech has not received all state and local approvals necessary to operate the wells; the wells will allegedly interfere with private property rights; considerations of "environmental justice" require denial of the permits; the Region's geological assessment of the proposed wells is allegedly flawed in several respects; the Region erred in characterizing the leachate [*2] as hazardous waste code "F006" under [Title] 40 of the [Code of Federal Regulations] C.F.R. 261.31(a); the permits, if issued, should include the wastestream from a new hazardous waste disposal facility proposed to be built by Envotech; the wells as permitted provide "excess capacity" in light of the volume of leachate to be disposed of in the wells; the pH limits in the permits are inadequate; and Envotech failed to provide the waste minimization certification required under 40 C.F.R. § 146.70(d)(1).
2. Held: The Board concludes that four of the petitions for review are untimely, and must be dismissed. The Board further concludes that six of the petitioners who filed timely petitions lack standing to pursue appeals, and their petitions for review must also be dismissed. In addition, four petitions are so lacking in specificity that they have provided the Board with no basis for considering them on their merits; review of those petitions is therefore denied. With respect to the issues raised in the remaining petitions, the Board finds that, except for one issue, the petitioners have not met the stringent standards necessary to invoke Board review of the Region's decision, and thus review must be denied. The Board does, however, [*3] find that the permits must be remanded for inclusion of the "waste minimization" certification required by 40 C.F.R. § 146.70(d)(1).
PANEL:
Before Environmental Appeals Judges Ronald L. McCallum and Edward E. Reich;
Opinion of the Board by Judge Reich
....
5. Environmental Justice Concerns
Various petitioners contend that considerations of "environmental justice," and in particular the President's Executive Order on Environmental Justice (Executive Order 12898), dictate that the permits should be denied because the area surrounding the site is already host to [*38] numerous burdensome land uses. Attachment B to the petition of the [A... Milan and York] AMY Group (No. 95-16) contends that:
The proper [environmental justice] inquiry is how burdened the area already is with existing undesirable land uses and with land uses which may not be viewed as undesirable now but which, over time, will place a burden on the community due to toxic air emissions or toxic leaks (such as industrial sites). People of this area have hosted more than their share of society's less attractive and healthful features: state and federal prisons, leaking toxic waste dumps, belching smokestacks, and seeping gas tanks.
* * * *
The proper definition of undesirable land uses is anything which currently places, or in the future is likely to place, an economic, sociological, or health burden on its neighbors[.]
AMY Group Petition, Attachment B. n24
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n24 Petitioners Auddie Shelby and John Blair (No. 95-21), on behalf of the United Auto Workers Region 1A Toxic Waste Squad, make similar arguments concerning the cumulative negative economic impact of waste disposal and industrial facilities on the region, which petitioners describe as being comprised of "lower level white collar workers and blue collar laborers" and "largely ethnic and racially based neighborhoods." Petition No. 95-21 at 1. Petitioners urge the Board to "deny this permit as an unwarranted burden on the people." Id. at 3.
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In its response to public comments, the Region stated that it responded to environmental justice concerns by expanding the opportunity for public input into the permitting decision by way of its two-day public hearing. The Region also stated that it imposed particularly stringent monitoring requirements on the 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." Response to Comments at 10. In addition, the Region conducted a demographic analysis for the two-mile radius surrounding the sites, and concluded that:
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 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 [*40] populations, if any, is minimal.
Id.
Petitioner AMY Group argues that the Region's response is inadequate, because the area analyzed (a two-mile radius) is too small to allow for proper evaluation of the sociological, health, and financial impacts. Petitioner argues for use of a ten-mile radius, and argues that impacts should be analyzed by census tracts, rather than for the area as a whole. Further, AMY Group contends that the permit decision should be stayed pending the Agency's adoption of a comprehensive plan to implement the Executive Order. Finally, petitioner states that "[EPA's] ability to ignore the applicant's hazardous waste compliance history in granting the permit is the ultimate environmental injustice." AMY Group Petition, Attachment B at 6.
Petitioner's concern regarding Envotech's environmental compliance history, while raised again as part of petitioner's environmental justice discussion, is not uniquely an issue of environmental justice. As explained above, Envotech's allegedly poor environmental compliance history must be rejected as a basis for reviewing the Region's permit decision. With respect to petitioner's remaining environmental justice arguments, [*41] we note that the Board recently addressed environmental justice issues at length in the permitting context in In re Chemical Waste Management of Indiana, Inc., 5 EAD RCRA Appeal Nos. 95-2 & 95-3 (EAB, June 29, 1995) (slip op.) (hereafter "CWM"). While that case involved a permit under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq., rather than the Safe Drinking Water Act, the principles articulated in CWM are nonetheless instructive here since both statutes use similar permitting processes.
In CWM, the Board described the effect of Executive Order 12898 on the permitting process as follows:
"Environmental Justice," at least as that term is used in the Executive Order, involves "identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of [Agency] programs, policies, and activities on minority populations and low-income populations * * *." 59 Fed. Reg. at 7629.
* * * * *
At the outset, it is important to determine how (if at all) the Executive Order changes the way a Region processes a permit application under RCRA. * * * We conclude that the Executive Order does not [*42] purport to, and does not have the effect of, changing the substantive requirements for issuance of a permit under RCRA and its implementing regulations. We conclude, nevertheless, that there are areas where the Region has discretion to act within the constraints of the RCRA regulations and, in such areas, as a matter of policy, the Region should exercise that discretion to implement the Executive Order to the greatest extent practicable.
CWM at 7-8. In its analysis, the Board first explained that there were "substantial limitations" on implementation of the Executive Order in the RCRA permitting context. The Executive Order by its express terms may be implemented only in a "manner that is consistent with existing law." Id. at 8. Under RCRA, the Agency is required to issue a permit to an applicant who meets the requirements of the statute and its implementing regulations. Id. (citing RCRA § 3005(c)(1)). Thus, the Board concluded that:
If a permit applicant meets the requirements of RCRA and its implementing regulations, the Agency must issue the permit, regardless of the racial or socio-economic composition of the surrounding community and regardless [*43] of the economic effect of the facility on the surrounding community.
Id. at 9 (emphasis in original). Despite this important constraint, the Board went on to identify two areas in the RCRA permitting process where the Region has the necessary discretionary authority within the constraints of RCRA to implement the mandates of the Executive Order: the "public participation" procedures of 40 C.F.R. Part 124, and the RCRA "omnibus clause," RCRA § 3005(c)(3), which gives the Regions broad authority to craft permit terms and conditions as necessary to protect human health and the environment. Id. at 9. With respect to public participation, the Board noted that the Agency's strategy for implementing the Executive Order expressly calls for "early and ongoing public participation in permitting and siting decisions.'" Id. (quoting EPA memorandum entitled "Environmental Justice Strategy: Executive Order 12898," EPA/200-R-95-002, at 8 (April 1995)). The Board stated that:
Part 124 already provides procedures for ensuring that the public is afforded an opportunity to participate in the processing of a permit application. The procedures required under part 124, however, do [*44] not preclude a Region from providing other opportunities for public involvement beyond those required under part 124. * * * We hold, therefore, that when the Region has a basis to believe that operation of the facility may have a disproportionate impact on a minority or low-income segment of the affected community, the Region should, as a matter of policy, exercise its discretion to assure early and ongoing opportunities for public involvement in the permitting process.
Id.
With respect to analysis of environmental justice concerns under the RCRA omnibus clause, the Board emphasized that the Executive Order and the omnibus clause limit the Region's analysis to issues implicating health and environmental considerations. The Board stated that "the Region would not have discretion to redress impacts that are unrelated or only tenuously related to human health and the environment, such as disproportionate impacts on the economic well-being of a minority or low-income community." Id. at 11 (emphasis added). With that qualification, the Board held that:
When a commenter submits at least a superficially plausible claim that operation of the facility will have a disproportionate [*45] impact on a minority or low-income segment of the affected community, the Region should, as a matter of policy, exercise its discretion under section 3005(c)(3) to include within its health and environmental impacts assessment an analysis focusing particularly on the minority or low-income community whose health or environment is alleged to be threatened by the facility. In this fashion, the Region may implement the Executive Order within the constraints of RCRA and its implementing regulations.
Id.
Both the opportunities for, and limitations on, implementation of the Executive Order in the UIC permitting context are essentially the same as we articulated in CWM. We have consistently interpreted the Agency's permitting role under the UIC program as being limited to implementing the requirements of the SDWA and the UIC regulations promulgated under the SDWA. Thus, the Agency has no authority to deny or condition a permit where the permittee has demonstrated full compliance with the statutory and regulatory requirements. See Beckman at 34 ("EPA's inquiry in issuing a UIC permit is limited solely to whether the permit applicant has demonstrated that it has complied [*46] with the federal regulatory standards for issuance of the permit."); Brine Disposal Well, at 742 ("'A permit condition or denial is appropriate only as necessary to implement these statutory and regulatory requirements * * *.'") (quoting Terra Energy at 161, n.6). Accordingly, if a UIC permit applicant meets the requirements of the SDWA and UIC regulations, the "Agency must issue the permit, regardless of the racial or socio-economic composition of the surrounding community and regardless of the economic effect of the facility on the surrounding community." CWM at 9 (emphasis in original).
However, as in CWM, there are two areas in the UIC permitting scheme in which the Region has the necessary discretion to implement the mandates of the Executive Order. See CWM at 9. The first area is public participation. Because the public participation requirements of Part 124 apply to UIC permits as well as RCRA permits, the reasoning of CWM with respect to expanded public participation under the Executive Order applies with equal force in the UIC program. We therefore hold that if a Region has a basis to believe that a proposed underground injection well may somehow [*47] pose a disproportionately adverse effect on the drinking water of a minority or low-income population, the Region should, as a matter of policy, exercise its discretion to assure early and ongoing opportunities for public involvement in the permitting process. See CWM at 9.
The second area is the UIC regulatory "omnibus authority" contained in 40 C.F.R. § 144.52(a)(9). Under that section, the Agency has the broad authority under the UIC program to impose, on a case-by-case basis, permit conditions "necessary to prevent migration of fluids into underground sources of drinking water." Id. n25 The SDWA proscribes all "underground injection which endangers drinking water sources," regardless of the composition of the community surrounding the proposed injection site. SDWA § 1421(b)(1). Thus, the UIC omnibus authority applies even where no disparate impact has been alleged. Nevertheless, there is nothing in the omnibus authority that prevents a Region from performing a disparate impacts analysis when there is an allegation that the drinking water of minority or low-income communities may be particularly threatened by a proposed underground injection well. See CWM at 10. [*48] However, as with the RCRA omnibus clause, any exercise of discretion under the UIC omnibus authority is "limited by the constraints that are inherent in the language" of the authority. CWM at 11. Thus, in response to an environmental justice claim, the Region is limited to ensuring the protection of the USDWs upon which the minority or low-income community may rely. Id. The Region would not have the authority to redress impacts unrelated to the protection of underground sources of drinking water, such as alleged negative economic impacts on the community, diminution in property values, or alleged proliferation of local undesirable land uses. With that important qualification, we hold that when a commenter submits at least a superficially plausible claim that a proposed underground injection well will disproportionately impact the drinking water of a minority or low-income segment of the community in which the well is located, the Region should, as a matter of policy, exercise its discretion under 40 C.F.R. § 144.52(a)(9) to include within its assessment of the proposed well an analysis focusing particularly on the minority or low-income community whose drinking water is alleged [*49] to be threatened. In this way, the Region may implement the Executive Order within the constraints of the SDWA and the UIC regulations. See CWM at 11.
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n25 The Board has stated that this authority could, for example, arguably extend to the imposition of more-stringent financial responsibility requirements than are generally prescribed for UIC permittees. Brine Disposal Well at 743, n.8.
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With this as a framework, we now turn to the actions the Region took in this permit proceeding. As discussed below, we conclude that the Region took adequate steps to implement the Executive Order by ensuring the participation of the community in the permitting process, and by conducting an analysis of any impact of the proposed wells on the minority and low-income segments of the community in which the wells are located.
In recognition of the significant public interest in these permits, the Region convened a two-day informal hearing in order to ensure that the views of the communities surrounding the sites were received and [*50] considered. The Region has explained that:
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. Further, 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.
Region's Response to Petitions at 58.
As to the merits of petitioners' contentions, the Region's demographic analysis of a two-mile area surrounding the sites showed that minority or low-income populations were only minimally, if at all, affected by the permits. Response to Petitions at 56-57. We reject petitioner's assertion that the two-mile area in which the Region conducted its demographic analysis was too small. n26 As we explained in CWM:
The proper scope of a demographic study to consider such impacts is an issue calling for a highly technical judgment as to the probable dispersion of pollutants through various media into the surrounding community. This is precisely the kind of issue that the Region, [*51] with its technical expertise and experience, is best suited to decide.
Id. at 17 (citations omitted). Petitioner has made no showing that the permit will not protect the drinking water sources of populations within two miles of the well sites, or that citizens at a distance greater than two miles will not be protected. Accordingly, review on the basis of this issue must be denied. n27
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n26 The Region has explained that the two-mile area was chosen not because of the two-mile "area of review" required in evaluating a proposed underground injection well, see 40 C.F.R. § 146.63 (as the AMY Group had supposed), but because of "the nature of injection well operations and the effect it has on the surrounding community." Response to Petitions at 55. More particularly, the potential effects considered by the Region (apart from effect on USDWs) included odors, pollution, noise and increased vehicular traffic. The Region determined that the proposed wells (being non-commercial, with dedicated pipelines and a dedicated wastestream) had little potential to generate any such effects in the area immediately surrounding the wells, let alone greater than two miles from the well. See Response to Petitions at 56. [*52]
n27 As explained above, to the extent that the petitions for review seek redress for such impacts that are unrelated to the protection of USDWs, review must be denied. See, e.g., Petition of AMY Group (No. 95-16), Attachment B (alleging that wells will have negative effect on region, in light of cumulative impact of existing heavy industry, state and federal prisons, waste disposal facilities, and similar "undesirable land uses").We also reject the AMY Group's contention that the Region's decision should have been stayed pending adoption by the Agency of a comprehensive environmental justice plan. Petition of AMY Group (No. 95-16), Attachment B. We previously rejected a similar argument in CWM because the petitioners did not demonstrate how the absence of such a strategy led to an erroneous permit decision. CWM at 15. No such demonstration has been made here. Further, the Agency issued its environmental justice strategy in April 1995. See "Environmental Justice Strategy: Executive Order 12898" EPA/200-R-95-002 (April 1995). There is no inconsistency between the strategy and the Region's decision in this case, let alone one that warrants review.
End of excerpt of EAB decision dealing with environmental justice issues.