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Environmental Justice & UIC Envotech Decision

On this page:
  1. Overview of Environmental Justice in the UIC Program
  2. Envotech Case Highlights & Background
  3. Excerpts From Environmental Appeals Board Decision Regarding Environmental Justice
  4. EPA Response to Envotech Environmental Justice Issues
  5. Demographic Maps Supporting Envotech Environmental Justice Decision
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Overview of Environmental Justice in the UIC Program

We screen facilities in Indiana, Michigan and Minnesota to determine if they are potentially located in an environmental justice area. Facilities that are potentially located in such areas receive priority attention. Actions may include early and ongoing public participation in permit, siting, and enforcement decisions; priority for enforcement; supplemental environmental projects where possible; as well as crafting permit terms and conditions as necessary to protect human health and the environment.

Envotech Case Highlights & Background

In 1991, Envotech, L.P. submitted applications for two Class I non-hazardous waste disposal wells to be sited in southeast Michigan. Envotech proposed to use the wells to both remediate an existing closed State Superfund landfill and to dispose of leachate and wastewaters from a hazardous waste landfill and incinerator that they were proposing to construct on the site. Envotech has since withdrawn the incinerator application but is continuing with the new hazardous waste landfill. The public is strongly opposed to Envotech's plans.

After reviewing the UIC applications, USEPA determined that the leachate from the abandoned landfill contained a listed hazardous waste (electroplating sludge) and as such required Envotech to change its applications to Class I hazardous wells. On August 15, 1994, USEPA held a public hearing on the draft permits. Approximately 1600 people, including elected officials and environmental groups, attended the meeting. After the public comment period ended, USEPA finalized the permits on March 30, 1995. The public filed 36 appeals on this action--the most ever filed on a single Agency decision. On February 15, 1996, the EAB ruled that the UIC program did not err in either legal or technical decisions made in issuing the permits. In response to this ruling that the UIC program had acted properly in issuing the permits, USEPA, on March 28, 1996, finalized permits to Envotech, L.P. for the construction and operation of two deep hazardous waste injection wells.

Environmental Justice Issues

The Appeals Board ruled that the actions taken by the UIC program were sufficient to address environmental justice concerns. These actions included: public meetings in advance of the draft decision; sending copies of the permit applications to local libraries to afford greater public access; more stringent monitoring requirements in the permits such as a full Appendix IX analysis of the wastestream and daily analyses of key parameters for 90 days thereafter; and finally, the UIC program conducted a demographic analysis of the of the area and determined that it did not qualify as an EJ site. All of these actions, conducted prior to the issuance of a national EJ strategy, conform to the suggested actions contained in the national EJ strategy.

Other Issues

Another issue under appeal was the characterization of the proposed waste stream. Spurred by information provided by the public, the UIC program conducted an investigation that lead to the determination that the proposed wastestream, leachate from an abandoned landfill, should be characterized as hazardous waste, Resource Conservation and Recovery Act (RCRA) code F006. This countered an earlier determination by the Michigan Department of Natural Resources (MDNR) that the leachate was non-hazardous. In a controversial decision, the UIC and RCRA programs overrode the MDNR's waste determination. This decision resulted in more stringent hazardous waste permits issued to Envotech. It also caused the leachate to be handled as a hazardous waste during the remediation of the landfill. The Appeals Board backed the UIC/RCRA action when it ruled that "the Region properly undertook its own investigation and made its own determination of waste characterization."

Other issues brought before the EAB included that underground injection is unsafe; Envotech has a poor compliance history; the wells will infringe on property rights through subsurface trespass; Envotech has not received all State and local approvals for the wells; strong community opposition; possible induced seismicity; improper geologic characterization of the site; and other technical issues.

The Board did remand the permits to the UIC program so that waste minimization certification language can be added. Upon receipt of the certification from Envotech, the UIC Branch issued final permits on March 28, 1996.

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Excerpts From Environmental Appeals Board Decision Regarding Environmental Justice

UIC Envotech Decision

In re: Envotech, L.P. Milan, Michigan

Permit Nos. MI-161-1W-0002, MI-161-1W-0003

UIC Appeal Nos. 95-2 through 95-37

United States Environmental Protection Agency

1996 UIC LEXIS 1

February 15, 1996

Note: The following is an excerpt from the full Environmental Appeals Board (EAB) decision and contains only those aspects of the decision that are related to environmental justice. View the complete EAB decision on this case at the EAB UIC Permit Appeals web site. You may also choose to contact Allen Melcer at melcer.allen@epa.gov for more information about this project. Mr. Melcer was the permit writer at the time of the decision.

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. &sect &sect 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. &sect 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. &sect 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. &sect 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 &sect 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 &sect 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. &sect 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 &sect 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. &sect 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. &sect 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.

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Demographic Maps Supporting Envotech Environmental Justice Decision

Map of Population Density

Environmental justice map for the Envotech site showing population density
- Click image to see larger veiw -

Map of Low Income Population

Environmental justice map for the Envotech site showing distribution of low income population
- Click image to see larger veiw -

Map of Minority Population

Environmental justice map for the Envotech site showing distribution of minority population
- Click image to see larger veiw -

 

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USEPA Response to Envotech Environmental Justice Issues

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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.

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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.

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