Below we look at some recent “Environmental Justice News,” including a new department, a denial to build a plastics plant, and enforcement.  We also provide information on a requested listing under the Toxic Substance Control Act (TSCA) that was denied.

Creation of New Environmental Justice Department

Updating our earlier blogs regarding Environmental Justice (EJ), the Biden Administration has announced the creation of the office of Environmental Justice and External Civil Rights.  There will be 200 employees in the new office.

According to Reuters, “The U.S. Environmental Protection Agency on Saturday (September 24, 2022) launched a new office that will be focused on the needs of minority communities overburdened by pollution and oversee the delivery of $3 billion in environmental justice grants created by the recent passage of new climate legislation.”

Defining “overburdened by pollution” is the core of the implementation of EJ.  It would seem that this layer of “regulation” (Executive Order) can be somewhat subjective and beyond what is regulated by permitted discharges under the law (purportedly set by risk assessment to exposure).  Adding 200 employees solely to staff this office of Environmental Justice is a sign that EJ will play a considerable role in the renewal of permits, facility expansions, and initial siting of facilities.

Environmental Justice Cited for Denial of a Plastics Plant

Judge Trudy White, 19^th Judicial District Court, East Baton Rouge Parish, Louisiana, has blocked a plan by Formosa Plastics Group to build a plant in Louisiana.  The planned project, a $9.4 billion plant, had received the necessary permits (14 in total) from the Louisiana Department of Environmental Quality.

The planned project was to be located in an industrial area that has been referred to in the pejorative as “Cancer Alley.”

According to the New York Times in referring to the Judge’s decision, “She said that when Louisiana state regulators granted 14 permits to FG LA L.L.C., an affiliate of the Taiwan-based giant Formosa Plastics, they had used ‘selective’ and ‘inconsistent’ data and had failed to consider the pollution effects on the predominantly Black community.”

In her decision, under the Environmental Justice section, Judge White wrote, “This court holds that, on the facts of this case, an environmental justice analysis was mandatory…” (emphasis in the court document).

Judge White in referring to the cost-benefit analysis in her decision wrote, “LDEQ must take special care to consider the impact of climate-driven disasters fueled by greenhouse gases on environmental justice communities and their ability to recover” (emphasis in the court document).

According to reports, Formosa intends to explore all the legal options to proceed with its plans to build the plant.

“Advancing Environmental Justice” Cited in Enforcement

On September 26, 2022, the EPA announced a settlement with Clean Harbors for “improper monitoring of hazardous waste.”

The EPA’s Press Release states in part, “Today, the U.S. Environmental Protection Agency (EPA) announced a settlement with Clean Harbors Wilmington LLC for claims of violations of the Resource Conservation and Recovery Act at the company’s Wilmington, California, facility.  Clean Harbors has certified that the facility has addressed the claims and agreed to pay a $99,500 civil penalty.”

The Clean Harbors Wilmington Facility is a commercial hazardous waste treatment, storage, and disposal facility.  The EPA said Clean Harbors violated the Resource Conservation and Recovery Act for failure to follow volatile organic air emission requirements.  This included failure to properly implement the facility’s leak detection and monitoring program and to maintain and monitor air pollution control equipment.

The Press Release also included, “This settlement with Clean Harbors reflects EPA’s commitment to advancing environmental justice through ensuring compliance with environmental laws in overburdened communities” (emphasis added).

GHGs as Toxic Denied

There was a recent attempt to classify carbon dioxide, methane, nitrous oxide, and other greenhouse gases as toxic substances under the Toxic Substance Control Act (TSCA).  Specifically, the notice states, “The petition seeks action regarding ‘subject chemical substances and mixtures,’ by which the petition collectively refers to ‘the GHG emissions from all anthropogenic sources, the fossil fuels, and those emissions associated with fossil fuels (GHGs and otherwise).’”

According to the notice in the Federal Register, former National Aeronautics and Space Administration (NASA) scientist James Hansen, among others petitioned the Environmental Protection Agency to “…determine that the manufacture, processing, distribution in commerce, use, or disposal of greenhouse gas emissions, fossil fuels, and fossil fuel emissions present an unreasonable risk of injury to health or the environment and initiate a proceeding for the issuance of a rule under TSCA section 6(a) to: (1) Phase out the manufacture (including import), processing, distribution in commerce, use, or disposal of ‘subject chemical substances and mixtures’; and (2) Remove and sequester, or—in the alternative—establish a pay-in fund for the purpose of removing, such ‘subject chemicals substances and mixtures’ from the environment.”

Tangentially, Federal Energy Regulator Commissioner (FERC), Mark Christie was quoted earlier this year saying, “We’re heading for a reliability crisis.”  It would seem that these types of actions would only amplify concerns for reliable energy.

While it appears the petitioners were sincere, the EPA denied the request to initiate a proceeding for the issuance of a rule under TSCA section 6(a).

This blog was drafted by Alan Hahn. Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management. He has worked in environmental management for 45 years and has written hundreds of blogs and articles. His published work includes Michigan Lawyers Weekly, Detroiter, Michigan Forward, GreenStone Partners, Manure Manager Magazine, Progressive Dairy, and HazMat Magazine.

The blog was reviewed by Jeffrey Bolin, M.S.  Jeff is a partner and senior scientist at Dragun Corporation.  He is a published author, frequent speaker, and expert witness.  His expertise in environmental due diligence, PFAS, vapor intrusion, and site assessments has led to projects in the US, Canada, and overseas. See Jeff’s Bio.  

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