Legal Terrain

Massachusetts Provides Extra Protection to Environmental Justice Communities from Air Pollution

June 13, 2024

   

In a groundbreaking move, effective July 1, the Massachusetts Department of Environmental Protection will tighten the permitting requirement for certain existing and new sources of air pollution located near an environmental justice population. Environmental justice populations are those with elevated numbers of minorities, non-English speakers, or low-income households. Much of the greater Boston area, Worcester, and the gateway cities are mapped as environmental justice communities, which will receive this additional protection.

The Executive Office of Energy and Environment Affairs has had an Environmental Justice Policy since 2002, which requires enhanced analysis of air pollution and other impacts and public participation for environmental justice populations in the environmental review process of projects near such populations. Yet, it was not until the Climate Roadmap Act of 2021 that the law required the MassDEP to adopt regulations requiring “Cumulative Impact Analysis” for certain permits and approvals. In its March 2024 amendments to the Air Pollution Control regulations and accompanying guidance, the Department has made its first foray into creating a different permitting process for projects in or near an environmental justice population.

In addition to enhanced public engagement with the environmental justice community, the regulations and guidance require an applicant for permits subject to the regulations to (i) assess existing conditions by collecting and summarizing data on the existing “environmental, public health, and socio-economic” indicators listed in the regulations; and (ii) “document relevant comments received regarding air quality and public health made by municipal officials, organizations, representative and residents in nearby environmental justice populations.” The indicators include data on the proximity of nearby regulated facilities such as toxics dischargers or users, hazardous or solid waste facilities, hazardous waste generators, other air pollution sources, wastewater treatment plants, airports, rail freight yards, and ports. Health indicators include asthma prevalence in schools, elevated blood lead levels, low birth weight, premature deaths, COPD, and coronary heart disease. Nearby sensitive receptor indicators are schools, long-term care residences, public housing, childcare facilities, and prisons. Socio-economic indicators are median household income, minority population percentage, English language isolation, and percent of the young and older populations. Finally, the air quality and climate indicators include particulate matter levels, ozone during the summer season, traffic proximity, diesel particulate levels, Air Toxic Cancer Risk, Air Toxic Respiratory Hazard Index (i.e., toxicity), and impervious surfaces.

The regulations require air dispersion modeling for criteria air pollutants. The modeling must account for “existing criteria pollutant actual emissions from nearby significant sources, as appropriate” and “background levels of priority pollutants based upon data from ambient air monitoring stations.” The modeled concentrations of priority pollutants will be compared to the state and national Ambient Air Quality Standards. From our experience, this does not create a more stringent permitting standard for criteria air emissions that would exist outside of an environmental justice area.

The regulations also require the characterization of the health risks from air toxics. An applicant can use certain default dispersion factor values built into the Department’s “air toxics spreadsheet tool” or conduct air toxics dispersion modeling to derive modeled concentrations and enter them into the spreadsheet tool. As with the priority pollutants, an applicant must account for air toxics from the source itself and those from “nearby significant sources, as appropriate and where information is available.”  (It appears that questions from practitioners questioning the availability of such “nearby significant source” air toxics emissions data may have resulted in the addition of the qualifier “where the information is available”). As an alternative to using the Department’s air toxics spreadsheet tool, an applicant may perform its own “refined air toxics risk characterization based upon air dispersion modeling.” Cumulative cancer risks shall be compared to an excess lifetime cancer risk of ten in one million. Cumulative non-cancer risks are to be compared to a hazard index of one. These risk standards are equivalent to the risk levels deemed acceptable under other MassDEP programs, such as the Massachusetts Contingency Plan for hazardous material and oil remediation and the EPA’s superfund program, which apply generally regardless of proximity to an environmental justice population.

Notably, unlike modeling of criteria pollutants, the regulation does not explicitly require that the air toxics modeling account for “background concentrations of air toxics.” Presumably, this is to avoid the potential – pointed out to me by one air quality expert – that the risk standard could be exceeded before factoring in project emissions. Existing EPA toxics inventory data shows that for some locales and air toxics, existing levels of air toxics already exceed the MassDEP’s risk standard.

Applicants shall “evaluate and describe how criteria air pollutant and air toxic emissions from the proposed project could affect existing environmental and public health conditions in nearby environmental justice populations . . . and any mitigation measures it will implement to minimize the cumulative impact of the proposed project.”

In a somewhat subtle but perhaps significant change, the regulations now provide that in issuing a plan approval, the Department may impose reasonable conditions “to reduce, minimize or mitigate cumulative impacts pursuant to 310 CMR 7.02 (14).” Contrast the Department’s relatively open-ended authority to condition a permit to the more explicit new section at 7.02 (14)(h)(2) that “the Department shall not propose to approve” a project unless:

  • The requirements of 310 CMR 7.02(3)(j) (requiring compliance with National Ambient Air Quality Standards and other air quality standards) and 310 CMR 7.02(14)(b)-(g) (the Cumulative Impact regulations) are met;
  • Any excess lifetime cumulative cancer risk does not exceed the standard of ten in one million;
  • Any cumulative non-cancer risk does not exceed a hazard index of one.

While the Department has made significant strides in addressing the concerns outlined in the Climate Roadmap Act and by environmental justice and protection advocates and raised the bar significantly for project proponents, it remains to be seen whether actual implementation will result in a more stringent permitting standard for projects located in the vicinity of an environmental justice community. In our July 2023 blog post, we discussed the implications of recent Supreme Court decisions on Massachusetts’ environmental justice law and policy that make distinctions based on race. Assuming that the Department will apply the familiar air quality and risk standards outlined above, the question nevertheless remains whether the Department could outright deny or impose conditions that would practically deny a permit based upon the health, environmental, or socio-economic conditions of a nearby environmental justice community and whether such a decision would survive a legal challenge.

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