118th CONGRESS 1st Session |
To establish a Federal program of cumulative impact assessments under the Clean Water Act and Clean Air Act, and for other purposes.
July 12, 2023
Ms. Tlaib introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committee on Transportation and Infrastructure, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
To establish a Federal program of cumulative impact assessments under the Clean Water Act and Clean Air Act, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
This Act may be cited as the “Cumulative Impacts Act of 2023”.
Congress finds the following:
(1) All Americans, regardless of income, race, ethnicity, color, national origin, gender, or sexual identity, deserve to live in clean and healthy communities free from the burdens of environmental pollution and degradation.
(2) Communities of color and lower-income communities have historically been subjected to disproportionate amounts of air, water, and soil pollution, including pollution from numerous and concentrated industrial, commercial, and governmental facilities located in those communities.
(3) As a result, residents of these overburdened communities have suffered from increased adverse health risks, including asthma, cancer, elevated blood lead levels, respiratory illnesses, cardiovascular disease, and developmental disorders. Children are most vulnerable to the effects of pollution and can suffer lifelong consequences. The adverse effects of pollution harm the well-being and stability of these communities and their residents.
(4) These disproportionate burdens have been the consequence of policy decisions at all levels of government over many years, and government now has the responsibility and moral imperative to correct these injustices.
(5) No community should bear a disproportionate share of the adverse environmental and public health impacts of pollution caused by economic or any other activity.
(6) Overburdened communities should be empowered legally and politically to participate in any decision to allow additional facilities which by their nature increase environmental and public health stressors to locate in their communities.
(7) It is in the public interest to limit the future placement and expansion of such facilities in overburdened communities.
(8) The burden of proof that a proposed action will not harm communities should fall on polluting industries and on the Federal Government in its regulatory role, not the communities themselves.
(9) Pollutants currently regulated by the Federal Government, including for example criteria air pollutants, may have additive and synergistic negative effects on human health and the environment when combined.
(10) Cumulative impacts are the public health and environmental risks and impacts caused by the combined past, present, and reasonably foreseeable future releases of environmental pollution in a specific geographic area. Cumulative impact assessment considers sensitive populations and other social factors that may heighten vulnerability to environmental pollution and associated health risks.
(11) Cumulative impact assessments built into permitting decisions are one critical tool for preventing increased environmental and public health degradation in overburdened communities. At its most basic, cumulative impact assessment requires studying the impacts of having multiple pollution sources and stressors combined together on public health and the environment. While the effects of a single pollutant from a single source may be less significant when analyzed in isolation, the cumulative impacts of multiple pollutants from multiple sources in combination with each other and with other social vulnerabilities degrade public health and the environment substantially. Cumulative impact assessments should be incorporated into pollution permitting decisions such that Federal regulators are required to deny permits that threaten public health and the environment.
(12) The general failure of the Federal Government to consider and regulate potential cumulative impacts in pollution permitting decisions has resulted in the inequitable distribution of pollution across regions and overburdening of certain communities.
(13) Federal Government inaction has forced some State and local governments to act on their own to regulate cumulative impacts, including California and New Jersey, creating a patchwork of cumulative impact regulations across the country.
(14) The Federal Government is aware of the importance of cumulative impact assessment in other types of environmental review, such as with environmental assessments conducted under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(15) The Federal Government should adopt and operationalize cumulative impact assessment in all pollution permitting decisions, especially in overburdened communities, and should deny permits that create a reasonable certainty of harm to communities.
SEC. 3. Consideration of cumulative impacts and persistent violations in certain permitting decisions.
(a) Federal Water Pollution Control Act.—Section 402 of the Federal Water Pollution Control Act (33 U.S.C. 1342) is amended—
(1) by striking the section designation and heading and all that follows through “Except as” in subsection (a)(1) and inserting the following:
(i) by striking “upon condition that such discharge will meet either (A) all” and inserting the following: “subject to the conditions that—
“(A) the discharge will achieve compliance with, as applicable—
“(i) all”;
(ii) by striking “403 of this Act, or (B) prior” and inserting the following: “403; or
“(ii) prior”; and
(iii) by striking “this Act.” and inserting the following: “this Act; and
“(B) with respect to the issuance or renewal of the permit—
“(i) based on an analysis by the Administrator of existing water quality and the potential cumulative impacts (as defined in section 501 of the Clean Air Act (42 U.S.C. 7661)) of the discharge, considered in conjunction with the designated and actual uses of the impacted navigable water, there exists a reasonable certainty of no harm to the health of the general population, or to any potentially exposed or susceptible subpopulation; or
“(ii) if the Administrator determines that, due to those potential cumulative impacts, there does not exist a reasonable certainty of no harm to the health of the general population, or to any potentially exposed or susceptible subpopulation, the permit or renewal includes such terms and conditions as the Administrator determines to be necessary to ensure a reasonable certainty of no harm.”; and
(B) in paragraph (2), by striking “assure compliance with the requirements of paragraph (1) of this subsection, including conditions on data and information collection, reporting, and such other requirements as he deems appropriate.” and inserting the following: “ensure compliance with the requirements of paragraph (1), including—
“(i) data and information collection;
“(ii) reporting; and
“(iii) such other requirements as the Administrator determines to be appropriate; and
“(B) additional controls or pollution prevention requirements.”; and
(A) in each of paragraphs (1)(D), (2)(B), and (3) through (7), by striking the semicolon at the end and inserting a period;
(B) in paragraph (8), by striking “; and” at the end and inserting a period; and
(C) by adding at the end the following:
“(10) To ensure that no permit will be issued or renewed if, with respect to an application for the permit, the State determines, based on an analysis by the State of existing water quality and the potential cumulative impacts (as defined in section 501 of the Clean Air Act (42 U.S.C. 7661)) of the discharge, considered in conjunction with the designated and actual uses of the impacted navigable water, that the terms and conditions of the permit or renewal would not be sufficient to ensure a reasonable certainty of no harm to the health of the general population, or to any potentially exposed or susceptible subpopulation.”.
(1) DEFINITIONS.—Section 501 of the Clean Air Act (42 U.S.C. 7661) is amended—
(A) in the matter preceding paragraph (1), by striking “As used in this title—” and inserting “In this title:”;
(B) by redesignating paragraphs (2), (3), and (4) as paragraphs (3), (5), and (4), respectively, and moving the paragraphs so as to appear in numerical order; and
(C) by inserting after paragraph (1) the following:
“(2) CUMULATIVE IMPACTS.—The term ‘cumulative impacts’ means any exposure to a public health or environmental risk, or other effect occurring in a specific geographical area, including from an emission, discharge, or release—
“(i) environmental pollution released—
“(bb) accidentally; or
“(cc) otherwise; and
“(II) from any source, whether single or multiple; and
“(ii) as assessed based on the combined past, present, and reasonably foreseeable emissions and discharges affecting the geographical area; and
“(B) evaluated taking into account sensitive populations and other factors that may heighten vulnerability to environmental pollution and associated health risks, including socioeconomic characteristics.”.
(2) PERMIT PROGRAMS.—Section 502(b) of the Clean Air Act (42 U.S.C. 7661a(b)) is amended—
(i) in subparagraphs (A) and (C), by striking “assure” each place it appears and inserting “ensure”; and
(ii) by striking subparagraph (F) and inserting the following:
“(F) ensure that no permit will be issued or renewed, as applicable, if—
“(i) with respect to an application for a permit or renewal of a permit for a major source, the permitting authority determines under paragraph (9)(A)(i)(II)(bb) that the terms and conditions of the permit or renewal would not be sufficient to ensure a reasonable certainty of no harm to the health of the general population, or to any potentially exposed or susceptible subpopulation, of the applicable census block groups or Tribal census block groups (as those terms are defined by the Director of the Bureau of the Census); or
“(ii) the Administrator objects to the issuance of the permit in a timely manner under this title.”; and
(B) by striking paragraph (9) and inserting the following:
“(A) IN GENERAL.—With respect to any permit or renewal of a permit, as applicable, for a major source, a requirement that the permitting authority shall—
“(i) in determining whether to issue or renew the permit—
“(I) evaluate the potential cumulative impacts of the major source, as described in the applicable cumulative impacts analysis submitted under section 503(b)(3), taking into consideration other pollution sources and risk factors within a community;
“(II) if, due to those potential cumulative impacts, the permitting authority cannot determine that there exists a reasonable certainty of no harm to the health of the general population, or to any potentially exposed or susceptible subpopulation, of any census block groups or Tribal census block groups (as those terms are defined by the Director of the Bureau of the Census) located in, or immediately adjacent to, the area in which the major source is, or is proposed to be, located—
“(aa) include in the permit or renewal such standards and requirements (including additional controls or pollution prevention requirements) as the permitting authority determines to be necessary to ensure a reasonable certainty of no such harm; or
“(bb) if the permitting authority determines that standards and requirements described in item (aa) would not be sufficient to ensure a reasonable certainty of no such harm, deny the issuance or renewal of the permit;
“(III) determine whether the applicant is a persistent violator, based on such criteria relating to the history of compliance by an applicant with this Act as the Administrator shall establish by not later than 180 days after the date of enactment of the Cumulative Impacts Act of 2023;
“(IV) if the permitting authority determines under subclause (III) that the applicant is a persistent violator and the permitting authority does not deny the issuance or renewal of the permit pursuant to subclause (II)(bb)—
“(aa) require the applicant to submit a plan that describes—
“(AA) if the applicant is not in compliance with this Act, measures the applicant will carry out to achieve that compliance, together with an approximate deadline for that achievement;
“(BB) measures the applicant will carry out, or has carried out to ensure the applicant will remain in compliance with this Act, and to mitigate the environmental and health effects of noncompliance; and
“(CC) the measures the applicant has carried out in preparing the plan to consult or negotiate with the communities affected by each persistent violation addressed in the plan; and
“(bb) once such a plan is submitted, determine whether the plan is adequate to ensuring that the applicant—
“(AA) will achieve compliance with this Act expeditiously;
“(BB) will remain in compliance with this Act;
“(CC) will mitigate the environmental and health effects of noncompliance; and
“(DD) has solicited and responded to community input regarding the plan; and
“(V) deny the issuance or renewal of the permit if the permitting authority determines that—
“(aa) the plan submitted under subclause (IV)(aa) is inadequate; or
“(bb)(AA) the applicant has submitted a plan on a prior occasion, but continues to be a persistent violator; and
“(BB) no indication exists of extremely exigent circumstances excusing the persistent violations; and
“(ii) in the case of such a permit with a term of 3 years or longer, require permit revisions in accordance with subparagraph (B).
“(i) DEADLINE.—A revision described in subparagraph (A)(ii) shall occur as expeditiously as practicable and consistent with the procedures established under paragraph (6) but not later than 18 months after the promulgation of such standards and regulations.
“(ii) EXCEPTION.—A revision under this paragraph shall not be required if the effective date of the standards or regulations is a date after the expiration of the permit term.
“(iii) TREATMENT AS RENEWAL.—A permit revision under this paragraph shall be treated as a permit renewal if it complies with the requirements of this title regarding renewals.”.
(3) PERMIT APPLICATIONS.—Section 503(b) of the Clean Air Act (42 U.S.C. 7661b(b)) is amended by adding at the end the following:
“(3) Major source analyses.—The regulations required by section 502(b) shall include a requirement that an applicant for a permit or renewal of a permit for a major source shall submit, together with the compliance plan required under this subsection, a cumulative impacts analysis for each census block group or Tribal census block group (as those terms are defined by the Director of the Bureau of the Census) located in, or immediately adjacent to, the area in which the major source is, or is proposed to be, located that analyzes—
“(A) community demographics and locations of community exposure points, such as schools, day care centers, nursing homes, hospitals, health clinics, places of religious worship, parks, playgrounds, and community centers;
“(B) air quality and the potential effect on that air quality of emissions of air pollutants (including pollutants listed under section 108 or 112) from the major source, including in combination with existing sources of pollutants;
“(C) the potential effects on soil quality and water quality of emissions of lead and other air pollutants that could contaminate soil or water from the major source, including in combination with existing sources of pollutants; and
“(D) public health and any potential effects on public health from the major source.”.