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Environmental Justice in the Underground Injection Control (UIC) Program
UIC Excerpts from the December 1, 2000 Memorandum on Environmental Justice
UIC Envotech Permitting Decision
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UIC Excerpts From December 1, 2000 Memorandum on Environmental Justice
This memorandum titled "EPA Statutory and Regulatory Authorities Under Which Environmental Justice Issues May be Addressed in Permitting" details how the UIC program can address environmental justice issues in permitting decisions. The excerpts read as follows.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 |
MEMORANDUM
| SUBJECT: | EPA Statutory and Regulatory Authorities Under Which Environmental Justice Issues May be Addressed in Permitting |
| FROM: | Gary S. Guzy General Counsel Office of General Counsel (2310A) |
| TO: | Steven A. Herman Assistant Administrator Office of Enforcement and Compliance Assistance (2201A) Robert Perciasepe Timothy Fields, Jr. J. Charles Fox |
[Note: Only portions of this memorandum related to the Underground Injection Control program are included in this file.]
This memorandum analyzes a significant number of statutory and regulatory authorities under the Resource Conservation and Recovery Act, the Clean Water Act, the Safe Drinking Water Act, the Marine Protection, Research, and Sanctuaries Act, and the Clean Air Act that the Office of General Counsel believes are available to address environmental justice issues during permitting. The use of EPA's statutory authorities, as discussed herein, may in some cases involve new legal and policy interpretations that could require further Agency regulatory or interpretive action. Although the memorandum presents interpretations of EPA's statutory authority and regulations that we believe are legally permissible, it does not suggest that such actions would be uniformly practical or feasible given policy or resource considerations or that there are not important considerations of legal risk that would need to be evaluated. Nor do we assess the relative priority among these various avenues for addressing environmental justice concerns. We look forward to working with all your offices to explore these matters in greater detail.
I. Resource Conservation and Recovery Act (RCRA)
RCRA authorizes EPA to regulate the generation, transportation, treatment, storage, and disposal of hazardous wastes and the management and disposal of solid waste. EPA issues guidelines and recommendations to State solid waste permitting programs under RCRA sections 1008(a), 4002, or 4004 and may employ this vehicle to address environmental justice concerns. The primary area where environmental justice issues have surface, however, is in the permitting of hazardous waste treatment, storage, and disposal facilities (e.g., incinerators, fuel blenders, landfills[, injection wells]). Pursuant to RCRA section 3005, EPA is authorized to grant permits to such facilities if they demonstrate compliance with EPA regulations. [Exemptions to the Land Ban provisions of the 1984 Hazardous and Solid Waste Amendments are a component of the RCRA program and are administered by the Underground Injection Control program.]
Upon application by a State, EPA may authorize a State's hazardous waste program to operate in lieu of the Federal program, and to issue and enforce permits. The State's program must be equivalent to the Federal program to obtain and retain authorization. When EPA adopts more stringent RCRA regulations (including permit requirements), authorized States are required to revise their programs within one year after the change in the Federal program or within two years if the change will necessitate a State statutory amendment. [Title 40 of the Code of Federal Regulations] (40 CFR) § 271.2(e). EPA and most authorized States have so-called "permit shield" regulations, providing that, once a facility obtains a hazardous waste permit, it generally cannot be compelled to comply with additional requirements during the permit's term. The scope of EPA's authority to address environmental justice issues in RCRA hazardous waste permits was directly addressed by the Environmental Appeals Board (EAB) in Chemical Waste Management, Inc.,, 6 E.A.D. 66, 1995 WL 395962 (1995) http://www.epa.gov/eab/disk11/cwmii.pdf. The board found "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. at 73. It also found that RCRA allows the Agency to "tak[e] a more refined look at its health and environmental impacts assessment in light of allegations that operation of the facility would have a disproportionately adverse effect on the health or environment of low-income or minority populations." Id. at 74. Such a close evaluation could, in turn, justify permit conditions or denials based on disproportionately high and adverse human health or environmental effects, while "a broad analysis might mask the effects of the facility on a disparately affected minority or low-income segment of the community." Id. However, while acknowledging the relevance of disparities in health and environmental impacts, the Board also cautioned that "there is no legal basis for rejecting a RCRA permit application based solely upon alleged social or economic impacts upon the community." Id. at 73.
Consistent with this interpretation, there are several RCRA authorities under which EPA could address environmental justice issues in permitting:
A. Hazardous Waste Treatment, Storage and Disposal
- RCRA section 3005(c)(3) provides that "[e]ach permit issued under this section shall contain
such terms and conditions as the Administrator (or the State) determines necessary to protect
human health and the environment." EPA has interpreted this provision to authorize denial of a
permit to a facility if EPA determines that operation of the facility would pose an unacceptable
risk to human health and the environment and that there are no additional permit terms or
conditions that would address such risk. This "omnibus" authority may be applicable on a
permit-by-permit basis where appropriate to address the following health concerns in connection
with hazardous waste management facilities that may affect low-income communities or
minority communities:
- Cumulative risks due to exposure from pollution sources in addition to the applicant facility
- Unique exposure pathways and scenarios (e.g., subsistence fishers, farming communities);
- Sensitive populations (e.g., children with levels of lead in their blood, individuals with poor diets
- RCRA section 3013 provides that if the Administrator determines that "the presence of any hazardous waste at a facility or site at which hazardous waste, is, or has been, stored, treated, or disposed of, or the release of any such waste from such facility or site may present a substantial hazard to human health or the environment," she may order a facility owner or operator to conduct reasonable monitoring, testing, analysis, and reporting to ascertain the nature and extent of such hazard. EPA may require a permittee or an applicant to submit information to establish permit conditions necessary to protect human health and the environment. 40 CFR § 270.10(k). In appropriate circumstances, EPA could use the authority under section 3013 or 40 CFR § 270.10(k) to compel a facility owner or operator to carry out necessary studies, so that, pursuant to the "omnibus" authority, EPA can establish permit terms or conditions necessary to protect human health and the environment.
- RCRA provides EPA with authority to consider environmental justice issues in establishing priorities for facilities under RCRA section 3005(e), and for facilities engaged in cleaning up contaminated areas under the RCRA corrective action program, RCRA sections 3004(u), 3004(v), and 3008(h). For example, EPA could consider factors such as cumulative risk, unique exposure pathways, or sensitive populations in establishing permitting or clean-up priorities.
- EPA adopted the "RCRA Expanded Public Participation" rule on December 11, 1995. See 60 Fed. Reg. 63417. RCRA authorizes EPA to explore further whether the RCRA permit public participation process could better address environmental justice concerns by expanding public participation in the permitting process (including at hazardous waste management facilities to be located in or near low-income communities or minority communities).
- In expanding the public participation procedures applicable to RCRA facilities, EPA also would have authority to expand the application of those procedures to the permitting of: (a) publicly owned treatment works, which are regulated under the Clean Water Act; (b) underground injection wells, which are regulated under the Safe Drinking Water Act; and (c) ocean disposal barges or vessels, which are regulated under the Marine Protection Research and Sanctuaries Act. These facilities are subject to RCRA's permit by rule regulations, 40 CFR § 270.60, and are deemed to have a RCRA permit if they meet certain conditions set out in the regulations. 40 CFR § 270.60.
- EPA's review of State-issued permits provides additional opportunities for consideration of environmental justice concerns. Where the process for a State-issued permit does not adequately address sensitive population risks or other factors in violation of the authorized State program, under the regulations EPA could provide comments on these factors (in appropriate cases) during the comment period on the State's proposed permit on a facility-by-facility basis. 40 CFR § 271.19(a). Where the State itself is authorized for RCRA "omnibus" authority and does not address factors identified in EPA comments as necessary to protect human health and the environment, EPA may see, to enforce the authorized State program requirement. 40 CFR § 271.19(e) Alternatively, if the State is not authorized for "omnibus" authority, EPA may superimpose any necessary additional conditions under the "omnibus" authority in the federal portion of the permit. These conditions become part of the facility's RCRA permit and are enforceable by the United States under RCRA section 3008 and citizens through RCRA section 7002.
- RCRA section 3019 provides EPA with authority to increase requirements for applicants for land disposal permits to provide exposure information and to request that the Agency for Toxic Substances and Disease Registry conduct health assessments at such land disposal facilities.
- RCRA section 3004(o)(7) provides EPA with authority to issue location standards as necessary to protect human health and the environment. Using this authority, EPA could, for example, establish minimum buffer zones between hazardous waste management facilities and sensitive areas (e.g., schools, areas already with several hazardous waste management facilities, residential areas). Facilities seeking permits would need to comply with these requirements to receive a permit.
- RCRA-permitted facilities are required under RCRA section 3004(a) to maintain "contingency plans for effective action to minimize unanticipated damage from any treatment, storage, or disposal of ... hazardous waste." Under this authority, EPA could require facilities to prepare and/or modify their contingency plans to reflect the needs of environmental justice communities that have limited resources to prepare and/or respond to emergency situations.
- RCRA additionally provides EPA with authority to amend its regulations to incorporate some of the options described in 1 through 6 above so they become part of the more stringent federal program that authorized States must adopt.
II. Clean Water Act (CWA)
[There are no sections here that apply to underground injection control operations.]
III. Safe Drinking Water Act (SDWA)
The SDWA includes to separate regulatory programs. The Public Water Supply program establishes requirements for the quality of drinking water supplied by public water systems. This program contains no federal permitting. The Underground Injection Control (UIC) program establishes controls on the underground injection of fluids to protect underground sources of drinking water.
Under the UIC program, the Administrator must establish requirements for State UIC programs that will prevent the endangerment of drinking water sources by underground injection. EPA has promulgated a series of such requirements beginning in 1980. The SDWA also provides that States may apply to EPA for primary responsibility to administer the UIC program. EPA must establish a UIC permitting program in States that do not seek this responsibility or that fail to meet the minimum requirements established by EPA.
There are several SDWA authorities under which EPA could address environmental justice issues in UIC permitting:
- EPA-issued Permits
Underground injection must be authorized by permit or rule. The SDWA provides that EPA can deny or establish permit limits where such injection may "endanger" public health. "Endangerment" is defined to include any injection that may result in the presence of a contaminant in a drinking water supply that "may ... adversely affect the health of persons." 40 CFR § 144.52(b)(1). As a result, in those States where EPA issues permits and an injection activity poses a special health risk to minority or low-income populations, the SDWA provides EPA with authority to establish special permit requirements to address the endangerment or deny the permit if the endangerment cannot otherwise be eliminated. As in its Chemical Waste Management RCRA permit appeal decision discussed in Part I above, the EAB has addressed EPA's authority to expand public participation and to consider disproportionate impacts in the UIC permitting program. Envotech, 6 E.A.D. 260, 281, 1996 WL 66307 (1996) http://www.epa.gov/eab/disk10/envotech.pdf. - Pending regulatory action
The Office of Water is currently revising the regulations under this program governing "Class V" injection wells (i.e., shallow wells where nonhazardous waste is injected). In determining which wells to regulate and the standards for those where EPA determines regulations are necessary to prevent "endangerment", the SDWA provides EPA with authority to take into account environmental justice issues such as cumulative risk and sensitive populations. - Other regulatory actions
Likewise, the SDWA provides EPA with authority to address environmental justice issues related to potential endangerment of drinking water supplies by injection for all types of wells. For example, EPA could revise its regulatory requirements for siting Class I (hazardous waste) wells to address cumulative risk and other risk-related environmental justice issues.
IV. Marine Protection, Research, and Sanctuaries Act (MPRSA)
[There are no sections here that apply to underground injection control operations.]
V. Clean Air Act (CAA)
[There are no sections here that apply to underground injection control operations.]