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PROPOSAL:

Request to Provide Supplemental Comments on Title VI Implementation

SYNOPSIS:

The Board's Local Government & Small Business Assistance Advisory Group has been evaluating U. S. EPA Guidance on Title VI Implementation. The Advisory Group has prepared comments to supplement the document originally provided by AQMD. In addition, staff recommends that the Board's Administrative Committee develop a process for consideration of comments from Advisory Groups that are intended for submittal to parties other than the Governing Board.

COMMITTEE:

Not applicable.

RECOMMENDED ACTION:

1. Direct the Acting Executive Officer to submit to EPA the AQMD's Supplemental Comments on Title VI (Attachment A);

2. Request the Administrative Committee to review existing procedures regarding
   advisory group comments and develop a process for consideration of same.

Barry R. Wallerstein, D.Env.
Acting Executive Officer

Background

At the April 10, 1998 meeting, the Governing Board approved AQMD comments regarding EPA's Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits and directed the Acting Executive Officer to submit AQMD's comments to U. S. EPA prior to the May 6, 1998, deadline for public comments.

The Board's Local Government & Small Business Assistance Advisory Group (LG&SBAAG) has reviewed issues relating to Title VI and recommends supplemental comments be submitted to EPA. The LG&SBAAG would like Vice Chairman Norma Glover to sign the letter transmitting comments to EPA; however, since the original comments were by Board action, it seems appropriate that the supplemental comments also be from the Board and pursuant to Board action.

Proposal

The LG&SBAAG has prepared a draft letter with their comments. Staff concurs with the substance of those comments. For the Board's consideration, staff has made slight edits to the letter to frame the comments as agency comments. The revised version is Attachment "A." Staff recommends that the Board direct the Executive Officer to submit AQMD's comments to EPA, as set forth in Attachment A.

In addition, staff recommends that the Board request the Administrative Committee to review existing procedures regarding advisory group comments and return to the Board with a recommendation regarding a process for consideration of such comments.

Fiscal Impacts
None.

Attachments
A - Letter submitting AQMD comments to EPA

ATTACHMENT "A"
Letter submitting AQMD comments to EPA

United States Environmental Protection Agency
Attention: Title VI compliance
Office of Civil Rights
Mail Code 1201
Washington, D.C. 20460

Attention: Anne E. Goode, Director of the Office of Civil Rights

Dear Ms. Goode:

Title VI and Local Governments and Small Businesses

The South Coast Air Quality Management District (AQMD) Governing Board has established Advisory Groups as one of several mechanisms to provide public input to the Governing Board. One of these, the Local Government and Small Business Assistance Advisory Group (LG&SBAAG), consists of several Board members, local government elected officials, small business representatives and owners, and staff. The group provides advice and recommendations to the Board including but not limited to air quality management plan implementation input and solving problems of small businesses and local governments on issues of concern to them. The practical implementation of the Title VI Interim Guidance is of considerable importance to local governments and small businesses. The LG&SBAAG's review of the Title VI Interim Guidance form the basis of these comments.

Public Review and Comment

The AQMD acknowledges the good work of the Title VI Implementation Federal Advisory Committee Act (FACA) Committee, but still believes that it is imperative that a formal public input and comment process be initiated before the implementation guidelines are finalized and set in motion. EPA, as a result of general agency policies, is to be commended on their historical formal and aggressive outreach programs and, given the impact of these guidelines on local land use and planning, an outreach specifically directed toward local governments certainly seems appropriate. AQMD has formally requested that EPA Region IX facilitate discussions between the AQMD through its LG&SBAAG Group and EPA headquarters staff and we are pleased with their positive response.

AQMD recommends that EPA host formal training sessions with local government and private land use planners and small businesses once the guidance is finalized. These training sessions should revolve around explaining the simple protocols that hopefully EPA will create so that these key planning staff and decision makers can be educated in ways to avoid any potential disparate impacts and therefore administrative challenges rather than reacting to complaints after they are filed.

Delegated Programmatic Approach

AQMD also believes that a delegated programmatic approach to environmental justice issues is very much needed. AQMD realizes that the ultimate appeal process should reside with EPA. However, a local program containing adequate up-front public review of projects and enforceable, consistent and predictable rules and laws should establish a framework in which at least the "mechanics" of the disparate impact analysis in the permitting process can be handled locally. Perhaps EPA’s review of an appeal in this programmatic approach context could then be limited to those defined areas of concern and could assist in evaluating the merits of the administrative complaints.

The minimum requirements of a delegated program might be

• Enforceable provisions in the state law ensuring the public’s right to review and comment early, up front in the process.

• A toxics new source review rule similar to AQMD Rule 1401 that requires modeling and analysis and installation of lowest achievable emission rate technology for toxics over a de minimis risk level, e.g. one in a million. Included in this same rule is a proviso that no permit can be issued over 10 in a million risk, irrespective of all mitigations or control technologies applied.

• A rule or regulation reducing risk from existing facilities and operations similar to AQMD Rule 1402.

• A direct assessment of emission inventories in the air by source testing similar to the California AB2588 Air Toxics "Hot Spots" Assessment and Information Act. A law such as AB2588 is important not only for inventory purposes but, more importantly, because of the public noticing requirements that, in effect, has caused very substantial voluntary reductions in toxic air emissions in California.

• A rule mandating that the federal list of Section 112 toxic air contaminants be considered in any analysis.

  Other components could include notification of sensitive receptor rules, specific industry toxics control rules, and a mechanism for the quick delegation of federal MACT standards. EPA should also consider the stringency of the local new source review regulations in considering the effectiveness of the program in reducing toxics.

  BRBA (Basic Relative Burden Analysis) and ERBA (Enhanced Relative Burden Analysis) Methodologies

  AQMD also has reviewed the supporting documentation that the Title VI Implementation FACA Committee recently forwarded to the Science Advisory Board for its review and comment. AQMD realizes that the opportunity for comment is officially closed but believes the key concerns summarized below should be included and offers the following comments in the spirit of helping EPA and local governments better explain to project proponents and opponents alike the theory and practical considerations that go into determining if a disproportionate impact exists. A more detailed discussion of our comments on this subject has been attached as an appendix. Additional information may also be forwarded later as we are still evaluating the detailed methodologies.

  Science must be introduced into the disparate impact determination process – not in terms of more and more sophisticated mathematical models but through the use of real-time empirical data such as the current AQMD's MATES II (Multiple Air Toxics Exposure Study) that collects cumulative stationary and mobile source gaseous and particulate data simultaneously. This will provide an actual quantifiable picture of any localized impact and be the basis upon which avoidance or reduction or mitigation can be determined and implemented. AQMD also believes that environmental exposure burdens across other media and not just air, e.g., as groundwater, somehow need to be addressed since these may be greater risk exposure pathways.

  Pilot Study

  AQMD is ready and willing to work with EPA to pursue a joint pilot program combining a MATES approach and programmatic approach to address potential environmental justice, Title VI concerns and administrative challenges.

  We are available at your convenience to discuss these issues further and we look forward to your reply.

  	Sincerely,
  	Barry R. Wallerstein Acting Executive Officer

  CKR
  cc: Norma Glover, Chair, LG&SBAAG

  Appendix

  PRELIMINARY METHODOLOGY COMMENTS

  1. Both the Basic Relative Burden Analysis (BRBA) methodology and the Enhanced Relative Burden Analysis (ERBA) methodology address only estimated air-related emissions and chronic health effects from stationary sources. AQMD believes that estimated emissions either from the Toxics Release Inventory (TRI) or state databases could be problematic in that these inventories are compiled only for limited stationary sources can be incomplete or out of date and which, when coupled with conservative mathematical models, may not adequately reflect true exposures.
     
     For example, in the implementing regulations for TRI reporting, 40 CFR Part 372, an operator is to report the upper bound concentration of a toxic chemical if the operator does not know the specific concentration at which the compound was released. EPA has conducted limited TRI data quality surveys that reveal that facilities may over or underestimate their releases significantly. An EPA survey of the first year’s data (1987) indicated that greater than 75% of the facility estimates were within a factor of 100% of the EPA engineer’s best estimates.

     The conservative nature of the inventories coupled with the use of mathematical models also adds to the perception that a person’s business is being taken away by a bureaucratic government and places local governments between a rock and a hard place based on circumstantial evidence. AQMD advocates that a more empirical approach to air quality impacts be considered such as encouraging the use of real-time ambient monitors that will capture all contributions to air quality effects including mobile sources which is one obvious deficiency of the TRI database.

     This program could be modeled after the MATES II (Multiple Air Toxics Exposure Study) currently underway at the AQMD. Ten permanent monitoring sites and 14 microscale sites are currently being evaluated for thirty toxic pollutants, both gaseous and particulate in form. While we appreciate that placement of these monitors and even portable monitors is not without cost, perhaps funding should be considered by EPA to install such mobile monitors in those highly industrialized corridors of the United States. An appropriately instrumented mobile "platform" costs on the order of $80,000.
     

     Also regulations might be considered whereby, similar to PSD requirements, a year’s worth of data must be collected by a state or a proposed facility in impacted areas as baseline data against which a facility’s added contribution can be ascertained when it is up and running. The major advantage of the monitoring stations is the direct evidence, cumulative air contribution data, both gaseous and particulate in form, that each station would collect both from stationary and mobile sources.

     At a minimum, the BRBA and ERBA methodologies should be validated in a test industrial corridor by confirming exposures taken with ambient monitors and adjusting the BRBA/ERBA models accordingly.

  2. Other aspects of environmental exposure, including burdens placed on groundwater, wastewater water disposal, soil, noise and traffic etc., generated by a facility are not addressed. The simple availability of air quality models should not be the primary reason why attention is focused in that area. If impact models need to be developed to ascertain impacts to other environmental media, then EPA should undertake this effort.

  3. Relative analyses, whether BRBA or ERBA, are still relative comparisons. While one relative analysis may show a burden to a specific population group twice that of another group if the actual burden is negligible, for example, not measurable, of what value is the relative analysis? Twice nothing is still nothing. There should be established de minimis burden levels below which no further analysis is required. This could take the form of 40 CFR part 68 regulations where program level requirements become increasingly more stringent depending upon where a facility’s potential emissions are with respect to the de minimis level and prior history of exposing the population to dangerous chemicals.

  4. While AQMD appreciates the reasoning and desire to simplify the computational process, we are concerned about integrating all toxic chemicals into one pseudo-chemical and then modeling that simple compound. Many toxic air contaminants are associated with particulate matter that can have radically different dispersion characteristics compared to gaseous compounds. It might be more representative if EPA were to divide all air emissions into two groups, gaseous pollutants and particulate matter.

  5. Finally, AQMD questions truncating the dispersion models at 2,4 or 6 miles in the ERBA methodology and believes that the radius of the affected population should be determined by back-calculating for example, from a MICR of one in a million, within the risk models.

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