EPA Board Expands Use Of Environmental Justice Analysis

A recent decision by the EPA Environmental Appeals Board (EAB) has further roiled the environmental justice waters. The Shasta County, California, Air Quality Management District (AQMD) issued a Prevention of Significant Deterioration (PSD) permit¹ to Knauf Fiber Glass for the construction of a new fiberglass manufacturing plant. Eighteen parties filed petitions with the EAB for review of the permit. One petitioner, 98-8, asserted AQMD had failed to consider the facility’s impact on low-income persons in the immediate area prior to issuing the permit. EAB remanded the permit with a demand that AQMD supplement its decision record to include an environmental justice analysis.²

EAB’s order is troubling for two reasons. First, EAB does not appear to have jurisdiction to consider environmental justice issues. Second, and more significant, the decision appears to place an affirmative duty on state permitting bodies to complete an environmental justice review of each PSD permit (if not all federally delegated permits) issued.

EPA’s environmental justice interim guidance,³ based upon Executive Order 12,898, provides a mechanism whereby actions by a state environmental agency which receives federal funds and which result in disparate treatment to minority and low-income populations may be challenged. That mechanism was not used in the Knauf matter. Instead, Petitioner 98-8 relied on environmental justice concerns to appeal the issuance of the PSD permit and EAB apparently agreed that it has jurisdiction to consider those concerns during a permit appeal.

EAB based its jurisdiction solely on the fact that Petitioner raised environmental justice concerns in her pre-permit comments. It stated AQMD’s response to Petitioner’s comments was inadequate. EAB also explained that it needs to know the basis for AQMD’s determination that environmental justice concerns are not important in the context of the Knauf permit. In re: Knauf Fiber Glass, GmbH, PSD Appeal Nos. 98-3 through 98-20, p. 70, (EAB, Nov. 30, 1998). EAB’s opinion implies that any invocation of the environmental justice litany during the comment period for a permit will require a detailed response by the permitting agency. It also implies that EAB will review the adequacy of the environmental justice analysis.

Both AQMD and EPA have filed post-decision motions with EAB in this matter. AQMD’s Motion to Reconsider Remand Order (filed December 11, 1998) includes, in a footnote, the assertion that environmental justice issues have no bearing on whether a PSD permit is valid since those issues are not included in the permitting criteria listed at 40 CFR 52.21.

EPA’s Motion for Reconsideration and Clarification of EPA Region IX and EPA Office of Air and Radiation (filed December 14, 1998), however, makes no such argument. It merely asks for leave to supplement the environmental justice record before AQMD. This may indicate an unwillingness on the part of Region IX and the Office of Air an Radiation to enter the environmental justice fray or it may, rather, indicate U.S. EPA’s tacit approval of the EAB decision.

Even more troubling are questions raised by EAB in its Opinion as dicta. In addition to a requirement that federal agencies require Title VI compliance of state agencies receiving federal funds, Executive Order 12,898 places an affirmative duty on federal agencies to consider environmental justice impacts resulting from their actions. EAB opined that a state agency which issues permits under a federal delegation of authority may, in fact, be standing "in the shoes of the Regional Administrator." Id. at 69 (citing 45 Fed. Reg . 33290, 33413 (May 19, 1980)). It asked for clarification as to whether a state agency issuing permits under a federal delegation of authority must comply with Executive Order 12,898 as if it were a federal agency. Id. If the question is answered in the affirmative, each permit issued by a state agency under a federal delegation agreement (Title V, RCRA, NPDES) could require inclusion of an environmental justice analysis in the permitting record.

One thing clear from the EAB decision is that, for the immediate future, all PSD permitting decisions by state agencies will require an environmental justice analysis if the issue is raised during the public comment period. It will not take citizens’ groups long to realize this and to begin offering standardized environmental justice comments for each PSD permit under consideration.

Whether EPA and the EAB will determine that all permits issued pursuant to federally delegated authority require environmental justice analysis is anyone’s guess. This will likely be raised in a permit appeal in the near future.

1PSD permits are required by the federal Clean Air Act for major new or modified facilities located in attainment areas and which will emit specified air pollutants in quantities exceeding statutory thresholds. 42 U.S.C. 7475.

2U.S. EPA Region IX performed an environmental justice analysis which AQMD apparently relied upon in issuing the permit. The analysis did not appear in AQMD’s decision record.

3Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits, U.S. EPA, May 6, 1998.