EPA’s Office of Land and Emergency Management Publishes New Environmental Justice Action Plan

The EPA’s Office of Land and Emergency Management published a sweeping environmental justice action plan. The plan includes a diverse array of new measures and studies by the EPA to assess how the agency can better serve communities and increase the agency’s commitment to environmental justice through the Justice40 initiative.

Regulatory Background

• The EPA’s Office of Land and Environmental Management (OLEM) handles the policy and guidance for EPA hazard response and waste programs. These include developing brownfield and hazardous waste policies, responses to hazardous waste sites under the Superfund Program (CERCLA), as well as several other programs.
• In early 2021, President Biden issued two Executive Orders (EOs 13985 and 14008) which provided new grounds for federal agencies to work towards environmental justice concerns.
• The EPA recently also created the Office of Environmental Justice and External Civil Rights, which focuses on the agency’s environmental justice and external civil rights priorities (such as enforcing prohibitions against discrimination against applicants for and recipients of federal financial assistance from EPA). The EPA has defined “environmental justice” as the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. The office has multiple sub-offices focusing on resource management and communications, community support, policy and partnerships, and external civil rights compliance.
• One of the new programs initiated by the Biden Administration has been the Justice40 Initiative, which requires federal agencies to demonstrate that at least 40% of the benefits from federal investments in climate and clean energy flow to disadvantaged communities.
• OLEM has collaborated with the new environmental justice office to finalize the EJ Action Plan: Building Up Environmental Justice in EPA’s Land Protection and Cleanup Programs, which focuses on projects, tools, and practices to use for pollution prevention and clean-up programs. The EJ Action Plan is a “key component” of OLEM’s strategy to achieve Justice40 and other Administration initiatives.

EJ Action Plan

• The EJ Action Plan is split into four main parts, each focusing on a different aspect of environmental justice considerations for the EPA. The four categories task the EPA to: strengthen compliance, incorporate environmental justice concerns, improve community engagement, and conform to Justice40 requirements.
• The “Strengthen Compliance” section of the plan focuses on good governance as well as updates to the Spill Prevention Control and Countermeasure (SPCC) Plan and Facility Response Plan (FRP). The SPCC was created to provide requirements for oil producers and storage facilities to prepare plans in the event of an oil discharge at their facilities.
• The FRP rule requires those facilities to submit the plans to the EPA. The regulations are aimed at reducing the chance that an oil spill damages navigable waters or shoreline communities. Future inspections under the SPCC and FRP will focus on environmental justice communities and analyze SPCC and FRP implementation activities relative to those communities.
• In addition, the EPA plans to use Airborne Spectral Photometric Environmental Collection Technology (ASPECT), an aerial surveillance program for detecting chemical, radiological, and nuclear sources in continuous elevation missions (CEMs) for disadvantaged communities. The EPA plans to use ASPECT to collect data on air quality in disadvantaged communities to support data on state or federal air quality standard violations, improve facility compliance with EPA and state regulations, and improve air quality.
• “Incorporate Environmental Justice Concerns” is the largest section of the EJ Action Plan. The new plan includes sections on Resource Conservation and Recovery Act-regulated (RCRA) treatment, storage, and disposal facilities for coal combustion residuals (CCRs), per-and polyfluoroalkyl substances (PFAS) projects at National Priorities List (NPL) sites. RCRA creates a policy framework for hazardous and non-hazardous solid waste in the country, and forms the basis of much of the solid waste control in the U.S.
• The new RCRA environmental justice action plan will create a map of RCRA Corrective Action and permitted Treatment Storage and Disposal Facilities (TSDFs) to develop a new methodology for conducting an environmental justice analysis on the sites. TSDFs is a cradle-to-grave concept by the EPA to follow waste generators and transporters in waste management activities. The analysis is planned to finish in October 2022.
• The CCR section of the EJ Action Plan focuses on the operation, closure, and cleanup of CCR disposal units around the country. According to the plan, there are over 700 CCR units across over 300 sites, with the potential for intersection with many communities with environmental justice concerns. The EPA is currently in the process of developing a Federal Permitting Final Rule and Legacy Unit Proposed Rule, with completion targeted for fiscal year 2023.
• The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund, established a system to clean up and assign liability for hazardous waste sites around the U.S. The EJ Action Plan targets CERCLA for new plans to increase equitable redevelopment and community-wide revitalization in communities near Superfund sites around the country.
• The EJ Action Plan also provides additional funding to EPA Regions to address environmental justice related to EPA PFAS projects at federal NPL sites. The new funding will focus on promoting environmental justice in these projects through the use of EPA remedial project managers.
• The EPA’s third section is “Improve Community Engagement,” which focuses on matters such as community engagement and technical assistance, where the EPA will attempt to increase technical support to environmental justice communities through additional information about risk communication and effective stakeholder communication.
• One of the pieces of the third section is the Pilot Superfund Community Workshop. The EPA has developed a framework for workshops at Superfund sites and has been running preliminary community workshops at two Superfund sites, since in 2022. In addition, the agency hosted public discussions in July 2022 to get community feedback on the workshop aspect.
• The fourth section of the EJ Action Plan focuses on the Justice40 initiative. One of the major sections includes adding environmental justice criteria to grant programs focused on developing new anaerobic digestion capacity for food waste in the U.S. In addition, there is additional set-aside money in President Biden’s executive orders for these programs in counties experiencing persistent poverty.
• The EPA will also explore the potential of revising RCRA state grant terms and conditions to better focus on environmental justice in communities. As states are the primary implementing agency for most RCRA permitting, enforcement, and corrective action activities, changing state grant terms may better serve the environmental justice concerns that the agency envisions.

Future Developments

• Many of the items in the EJ Action Plan are already in progress and are planned to conclude within the next several years. The increased focus on environmental justice during the Biden Administration through the Justice40 initiative and this EJ Action Plan makes it clear that the EPA’s focus on environmental justice will continue to increase over the next few years.
• Although most of the plan does not include specific regulatory action, the increased focus on environmental justice as well as the results of some of the research focused sections of the plan could lead to additional regulation from the EPA in the coming years.

To contact the author of this piece, please email Walker Livingston ( [email protected]).
To contact the editor of this piece, please email Patricia Iscaro ( [email protected]).

Key Documents and Dates

• • EPA Office of Land and Emergency Management site
  • Justice40 at the EPA
  • White House National Climate Task Force
  • Justice40 Covered Programs List at the EPA (as of June 24, 2022)