OEHHA’s Cumulative Impacts Efforts Likely to Affect Agricultural Communities
Food & Agriculture Law Update
Recent interest in environmental justice issues has resulted in a push by the California Environmental Protection Agency (“Cal/EPA”) to address the cumulative impacts of multiple sources of pollution in specific communities in California. On October 16, 2012, the Office of Environmental Health Hazard Assessment’s (“OEHHA”) closed the public comment period on its Draft California Communities Environmental Health Screening Tool (“CalEnviroScreen”). The screening tool uses existing environmental, health, and socioeconomic data to create cumulative impacts scores for communities across California. Cal/EPA will ultimately use the screening tool in environmental decision-making and the current scoring methodology applied in the draft tool could have a negative impact on agricultural areas throughout the state.
Between 1999 and 2001, California adopted laws requiring Cal/EPA to address environmental justice, which is broadly defined as “the fair treatment of people of all races, cultures, and incomes with respect to the development, adoption, implementation, and enforcement of environmental laws, regulations, and policies.” Under those laws, Cal/EPA must conduct its programs, policies, and activities, and promote enforcement of all health and environmental statutes, so as to ensure the fair treatment of people of all races, cultures and income levels.
In response, Cal/EPA drafted an Environmental Action Plan directing Cal/EPA Boards and Departments to develop guidance on assessing, preventing, and reducing disparities in cumulative impacts. Cal/EPA designated OEHHA to lead the development of guidance on those impacts.
OEHHA’s Efforts at Addressing Cumulative Impacts
According to Cal/EPA’s working definition, “cumulative impacts” means “exposures, public health or environmental effects from the combined emissions and discharges, in a geographic area, including environmental pollution from all sources, whether single or multi-media, routinely, accidentally, or otherwise released. Impacts will take into account sensitive populations and socioeconomic factors, where applicable and to the extent data are available.”
In an effort to develop guidance on cumulative impacts, OEHHA has collaborated with the Cumulative Impacts and Precautionary Approaches (CIPA) Workgroup, an external stakeholder group formed by Cal/EPA. Members of the group include agricultural related parties, such as the Director of Environmental and Regulatory Affairs at the Western Plant Health Association (WPHA) focusing on the implications of crop protection products and an industrial hygienist with California Rural Legal Assistance Foundation in Sacramento focusing on environmental health issues affecting farm workers. In December 2010, OEHHA prepared a report entitled “Cumulative Impacts: Building a Scientific Foundation,” which established a preliminary screening methodology for assessing cumulative impacts on communities. Building upon this general methodology, OEHHA developed the Draft California Communities Environmental Health Screening Tool, releasing it for public review on July 30, 2012. Comments were received from a variety of groups, including California Rural Legal Assistance Foundation (CRLAF) and the California Farm Bureau Federation.
CRLAF commented that it was critical that the tool be finalized soon and put into use in order to reduce cumulative impacts in communities “facing high levels of vulnerabilities and exposure to toxics.” More specifically, the comments urged OEHHA to develop a drinking water quality indicator that recognizes rural Californians who rely on private wells and incorporates measurement of a community’s proximity to dairies and other Confined Animal Feeding Facilities (CAFOs). Additionally, the comments included a request that OEHHA maintain pesticide use as an indicator, characterizing such an indicator as “vital” to an accurate assessment of exposures in rural areas. Further, CRLAF commented that it would like to see incorporation of an indicator on job categories that it considers likely to give rise to occupational exposures, such as agriculture.
The California Farm Bureau’s comments, on the other hand, evidenced a desire for a more limited use of the screening tool, seeking clarification that it only be used to enhance communities and not to impede economic growth and environmental improvement. The comments included a request that OEHHA clarify that the screening tool only be used to “advance the use of incentive programs for job creation and economic investment” and not be used “for any type of regulatory permitting, mitigation, evaluation or siting decisions.” The Bureau also commented that the application of pesticide use reporting (PUR) in assigning cumulative impact scores is misleading because it implies that all uses of pesticides leads to exposure. Finally, the Bureau commented that the public review process must be improved to allow more time for public comment on the screening tool.
The draft screening tool uses existing data to assign cumulative impact scores to ZIP codes to paint a “broad picture” of the burdens and vulnerabilities that different areas face from environmental pollution. The formula used to assign cumulative impacts scores considers factors associated with the pollution burden for the area (exposures, environmental effects, and potential public health effects) and the population characteristics (sensitive populations, such as elderly or young children, and socioeconomic factors).
The draft screening tool is described by OEHHA as a “work in progress” which will continue to be refined and improved as OEHHA works with the public and a wide range of groups. However, OEHHA has not released a specific work plan for refining or improving the tool, aside from holding public workshops throughout October. OEHHA states that “no regulatory or policy decisions should be made based on the preliminary results” in the draft document. At this time, Cal/EPA and OEHHA are considering the public comments received. The final California Communities Environmental Health Screening Tool is expected to be released later this year.
Conclusions and Implications
Cal/EPA’s goal is to incorporate cumulative impact considerations into environmental decision-making. Thus, while the current Draft California Communities Environmental Health Screening Tool may not be used in decision-making, at least formally, the reality is that cumulative impact assessments will play a role in the development, implementation, and enforcement of environmental laws, regulations, and policies in the future.
In its 2010 report, OEHHA discusses the potential uses of cumulative impact assessments in environmental decision-making. OEHHA expects that the assessments could be used to identify opportunities for sustainable economic development. For example, the cumulative impacts scores could be used to prioritize highly impacted communities when providing financial assistance through Cal/EPA loan and grant programs. However, not all potential uses would necessarily have beneficial impacts on economic development. For instance, Cal/EPA could use the screening methodology to target enforcement efforts based on the relative ranking of pollution within a particular community, or use the tool to identify priority areas for environmental monitoring.
Agricultural communities in particular could be affected by the use of cumulative impact scores in environmental decision-making. Areas where agriculture is predominant are likely to be assigned higher cumulative impact scores based on the methodology proposed in the draft screening tool. For example, in calculating the exposure component, the draft tool measures indicators which the report suggests have higher incidence in agricultural areas, including pesticide use, elevated ozone, and small particle pollution. Composting facilities are specifically identified by the tool as potentially having negative community impacts. Additionally, the draft tool’s socioeconomic factor component, which considers such indicators as educational attainment, income, and race/ethnicity, may disproportionately affect the cumulative impacts scores assigned to agricultural communities.
A second working draft of the CalEnviroScreen tool, which incorporates slight changes to the methodology used, was distributed in early January 2013. The public comment period closes January 25, 2013, but CalEPA has indicated they may extend the deadline to February 1, 2013. The first version of the tool is expected to be released on March 1, 2013. We will keep you informed of any updates as they develop.