Insights
The Environmental Protection Agency (EPA) Office of Land and Emergency Management (OLEM) oversees policy and guidance for the EPA’s hazard response and waste programs. [1] In October 2022, OLEM released its Environmental Justice (EJ) Action Plan as part of its efforts to implement the White House’s directives to federal agencies to proactively work toward environmental justice. Those directives, in the form of executive orders, are far reaching in scope, covering all federal agencies, establishing new offices, and creating new initiatives. With EPA’s expansive push in the form of its EJ Action Plan, potentially impacted corporations and their counsel need to be aware of the recent changes including the specific EPA programs covered by the initiative.
In 2021, President Biden issued two executive orders that touch on environmental justice efforts by federal agencies. On his first day in office, Biden signed Executive Order 13985 (Advancing Racial Equity and Support for Underserved Communities Through the Federal Government), which recognizes that some policies of the federal government have historically overburdened certain individuals and communities in the realm of economic, environmental, and health impacts. [2] Specifically, Executive Order (EO) 13985 calls on federal agencies to recognize and work to overcome inequities in their policies and programs that serve as systemic barriers to equal opportunity.
Shortly thereafter, President Biden issued EO 14008 (Tackling the Climate Crisis at Home and Abroad), which lays out ambitious goals to respond to the climate crisis through domestic and foreign policy. [3] EO 14008 builds on and amends EO 12898 of 1994 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations), which directed federal agencies to identify and address disproportionate health and environmental effects of federal agency actions on minority and low-income communities. [4] EO 14008, in addition to the amendments to EO 12898 mentioned above, advises federal agencies to consider climate issues and establishes the White House Office of Domestic Climate Policy to coordinate the policy-making process among agencies. [5]
EO 14008 also announced the Justice40 Initiative, which mandates federal agencies to direct 40% of federal investments in climate, clean energy, clean transit, affordable and sustainable housing, workforce development, remediation of legacy pollution, and the development of clean water and wastewater infrastructure programs into disadvantaged communities. [6] [7] Expectedly, the EPA is one of the key agencies in this initiative. As of June 2022, the EPA has identified 73 programs that are covered by the initiative, including those in the following list:
WATER
DRINKING WATER
UNDERGROUND STORAGE TANKS
SPILL PREVENTION CONTROL AND COUNTERMEASURE (CPCC)
AIR
RESOURCE CONSERVATION AND RECOVERY ACT (RCRA)
SUPERFUND/CONTAMINATION
FEDERAL INSECTICIDE, FUNGICIDE AND RODENTICIDE ACT (FIFRA)
POLLUTION PREVENTION
GENERAL
OLEM designed its EJ Action Plan to guide implementation of these directives into its programs. After publishing the draft Action Plan in January 2022, OLEM solicited and incorporated feedback from state and local governments, government agencies, and the general public. [9] The Action Plan’s 36 objectives are categorized into four sections, each focusing on a distinct aspect of EJ concerns for the EPA. The four sections outline EPA’s plans to:
The final EJ Action Plan will affect the EPA’s administration of some of its largest and most impactful programs, including the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Superfund Program, Underground Storage Tanks, solid waste management, and oil pollution prevention.
EJScreen and Emerging Technologies
The Action Plan establishes goals for the EPA to promote the use of its existing analytical tools and to expand these technologies. The EPA recently released EJScreen, a publicly-available mapping tool that allows users to combine environmental and demographic data. [10] EJScreen allows users, including community members, to see the proximity of a community to environmental hazards such as air pollution or hazardous waste. The EPA is continuing to incorporate additional data into this platform and has launched programs to educate EPA staff and community members about its potential uses.
The Action Plan also lays out a long-term objective for the EPA to utilize its Airborne Spectral Photometric Environmental Collection Technology (ASPECT) to characterize chemical pollutants in EJ communities. ASPECT currently consists of a single aircraft that is deployed over potential or known chemical releases such as refinery fires. [11] ASPECT’s existing technology includes infrared scanners to image and identify the composition of chemical plumes and a gamma ray spectrometer to identify radiation. [12] The EPA plans to use this data collected over EJ communities to direct resources toward compliance enforcement.
Superfund
The EPA’s Superfund program is uniquely ripe for EJ considerations—70% of Superfund sites are within one mile of low-income housing. [13] In fact, the Superfund program has been on the ground floor of EJ initiatives for decades. [14] Since the National Environmental Justice Advisory Council (NEJAC) was established in 1993 as an independent advisory committee to the EPA, it has provided analyses of the Superfund and other contamination cleanup projects. [15] NEJAC issued its most recent Superfund report in May of 2021, and OLEM incorporated its recommendations into the EJ Action Plan.
OLEM identified ten aspects of the Superfund program in which to incorporate EJ. First, the EPA plans to incorporate more site-specific data to provide a better perspective of EJ factors in the initial screening and site assessment prioritization processes for Superfund sites.
OLEM set the goal to issue guidance in January 2023 to EPA Regional offices to incorporate community and EJ concerns as part of remedial and long-term removal action plans. OLEM also plans to develop tools over the next year to help Remedial Project Managers consider the implication of EJ factors throughout the Superfund process.
To increase the effectiveness of the Superfund program, OLEM set goals to enhance redevelopment efforts at Superfund sites by increasing collaboration with other EPA programs, state and local governments, and government agencies. OLEM will also continue researching and developing best practices for site reuse. Specifically, EPA and the Department of Housing and Urban Development will collaborate to identify HUD-assisted housing facilities located on Superfund sites and address exposure risks. The EPA has also provided special funding to four EPA Regions to address EJ considerations at Superfund sites with per- and polyfluoroalkyl substances (PFAS) contamination. This funding’s contingency on EJ considerations is likely a precursor to how the EPA will direct its funding in the future.
The EJ Action Plan also lays out an objective for the EPA to strengthen its relationship with communities affected by hazardous contamination. The EPA’s Office of Superfund Remediation and Technology Innovation (OSRTI) has developed a community workshop program designed to engage with communities early on and throughout the remediation process. These relationships will allow communities to have a hand in the decision-making process and proactively plan for redevelopment that will best serve the community.
Underground Storage Tanks (UST)
In 2021, the EPA fully rolled out its UST Finder project, where the public can locate any closed or active Underground Storage Tank (UST) site or Leaking Underground Storage Tank (LUST) release in the US. [16] UST Finder also allows users to compare UST and LUST locations to nearby water sources and weather data. Over the past year, the EPA’s Office of Underground Storage Tanks (OUST) worked to identify all UST sites and LUST releases that are impacted by potential EJ concerns. In the future, OUST will incorporate EJScreen data directly into UST Finder so that stakeholders can better understand the impacts of storage tanks on disadvantaged communities. In the meantime, UST and LUST location data has been incorporated into EJScreen.
OUST is also launching a program to develop facility-specific compliance assistance for facility owners on tribal lands within the US. OUST acknowledges that UST facilities such as gas stations provide economic benefits and necessary resources to their communities, and targeted compliance assistance will reduce the risk of chemical leaks that would otherwise further burden these communities. Because the EPA has direct implementation authority in tribal lands, it is a natural choice for this type of pilot program that the EPA could expand in the future. [17]
Resource Conservation and Recovery Act (RCRA)
The Office of Resource Conservation and Recovery (ORCR) is currently working to map all RCRA Corrective Action cleanup sites and Treatment Storage and Disposal Facilities (TSDF)-permitted sites. The EPA will then analyze this data with EJ tools to identify potentially overburdened communities and areas that would benefit from additional funding.
The EJ Action Plan also encourages rule makers to consider EJ factors while finalizing the Coal Combustion Residual (CCR) federal permitting program and its legacy unit proposed rule. The Plan also asks EPA rule makers to add EJ priorities to the conditions required for states to receive RCRA hazardous waste grants.
In response to EO 14008, the ORCR established the RCRA Community of Practice for EJ, a network of professionals who want to incorporate EJ concerns into RCRA administration. This group hosts monthly forums for the EPA, states, and other interested parties to discuss the status and best practices of EJ in RCRA implementation.
Spill Prevention Control and Countermeasures (SPCC) and Federal Response Plans (FRP)
To introduce EJ into oil pollution prevention efforts, the Plan directs EPA staff to analyze historical SPCC and FRP compliance in EJ-impacted communities. The EPA will then use this data to potentially increase inspection and implementation activities in those communities. The EPA will also train on-scene coordinators (OSCs) on EJ issues, which will help the EPA’s Emergency Response and Removal Program to better address EJ concerns.
Because the EPA considers EJ factors in permitting and enforcement decisions, regulated entities would be wise to consider the EPA’s priorities when developing compliance programs. EJ impacts will continue to direct EPA’s compliance focus, as well as funding, for many (perhaps most) cleanup programs. Owners and operators should incorporate environmental justice strategy into the overall corporate compliance efforts to reduce environmental impacts and lessen the risk presented by EPA’s focus on EJ factors.
We would like to thank John Peiserich and Jessica Edens for providing insight and expertise that greatly assisted this research.
John Peiserich is an Executive Vice President and Practice Lead in J.S. Held’s Environmental, Health & Safety practice. With over 30 years of experience, John provides consulting and expert services for heavy industry and law firms throughout the country with a focus on Oil & Gas, Energy, and Public Utilities, including serving as an expert witness in arbitration proceedings and in state and federal courts. He has extensive experience evaluating risk associated with potential and ongoing compliance obligations, developing strategies around those obligations, and working to implement a client-focused compliance strategy. Mr. Peiserich has appointments as an Independent Monitor through EPA’s Suspension and Debarment Program. John routinely supports clients in a forward-facing role for rulemaking and legislative issues involving energy, environmental, Oil & Gas, and related issues.
John can be reached at [email protected] or +1 504 360 8373.
[1] EPA, About the Office of Land and Emergency Management, (https://www.epa.gov/aboutepa/about-office-land-and-emergency-management).
[2] 86 FR 7009 (Jan. 20, 2021), available at https://www.federalregister.gov/documents/2021/01/25/2021-01753/advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government.
[3] 86 FR 7619 (Jan. 27, 2021), available at https://www.federalregister.gov/documents/2021/02/01/2021-02177/tackling-the-climate-crisis-at-home-and-abroad.
[4] 59 FR 32 (Feb. 16, 1994), available at https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf.
[5] EO 14008 at § 202
[6] EO 14008 at § 223.
[7] OFFICE OF MANAGEMENT AND BUDGET, Interim Implementation Guidance for the Justice40 Initiative (July 20, 2021), available at https://www.whitehouse.gov/wp-content/uploads/2021/07/M-21-28.pdf.
[8] EPA, Justice40 Initiative Covered Programs List for the Environmental Protection Agency (June 24, 2022), available at https://www.epa.gov/system/files/documents/2022-07/Justice40%20Initiative%20Covered%20Programs%20List%20for%20EPA.pdf.
[9] EPA OLEM, EJ Action Plan, (EPA 502/P-21/001) (Sept. 2022) at p. 4, available at https://www.epa.gov/system/files/documents/2022-09/OLEM-EJ-Action-Plan_9.2022_FINAL-508.pdf.
[10] EPA, What is EJScreen? (2022), available at https://www.epa.gov/ejscreen/what-ejscreen.
[11] EPA, ASPECT (2022), available at https://www.epa.gov/emergency-response/aspect#past%20flights.
[12] EPA, ASPECT Fact Sheet (2021), available at https://www.epa.gov/system/files/documents/2021-11/aspect-fact-sheet-2021.pdf.
[13] Sylvia Carignan, Majority of Superfund Sites Near Low-Income Housing, BLOOMBERG LAW (May 8, 2017), available at https://news.bloomberglaw.com/environment-and-energy/majority-of-superfund-sites-near-low-income-housing.
[14] NEJAC, Superfund Remediation and Redevelopment for Environmental Justice Communities (May 2021), available at https://www.epa.gov/sites/default/files/2021-06/documents/superfund_remediation_and_redevelopment_for_environmental_justice_communities_may_2021_report.pdf.
[15] NEJAC at p. 17.
[16] EPA, UST Finder, available at https://www.epa.gov/ust/ust-finder.
[17] OLEM EJ Action Plan at p. 47.
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