Cap-and-Trade, Fence Line Monitor Concerns Stall Justice Council Advice to EPA on Rules

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By Rachel Leven

March 19 — The National Environmental Justice Advisory Council couldn't agree March 19 on final advice to the Environmental Protection Agency regarding the agency's refinery and Clean Power Plan proposals.

The council did approve during a teleconference letters to be sent to EPA Administrator Gina McCarthy on its stance regarding the farmworker protection proposal and chemical safety issues. A senior agency official also announced on the call that the agency will be working with stakeholders starting in April on a five-year environmental justice plan.

“I think there are concerns as to whether fence line monitoring is absolutely needed as it is described here. It almost seems like a battle of the experts,” Stephanie Hall, a council member and a managing counsel for Valero Energy Corp., said. “I think it just raised a lot of controversy within.”

The council will further discuss what advice it should send to McCarthy on the Clean Power Plan, the refinery rule and Title VI (civil rights enforcement) during another public teleconference. Members requested that the call be scheduled prior to the council's in-person meeting in San Diego May 20-21.

The NEJAC is a council of appointed academics, industry members and representatives from community, non-profit and tribal groups that advises the administrator on environmental justice issues.

Fence Line Monitoring 

The council decided to take another look at the need for and accuracy of fence line monitoring technology for refineries at the next teleconference before sending its recommendations to McCarthy, issues largely raised by Hall.

The agency's proposed refinery rule (RIN 2060-AQ75) targets hazardous air pollutant emissions from petroleum refineries. Several officials have touted the fence line monitoring provisions as indicative of how the agency is considering community concerns in its rulemakings and programs.

Edith Pestana, council member and environmental justice program administrator at the Connecticut Department of Environmental Protection, said she is interested in hearing industry conversations, but emphasized that fence line monitoring gives communities “a little bit more security that at least those emissions are being looked at and being addressed.” If fence line monitoring technology isn't accurate enough, Pestana asked, what would be?

Hall brought up the idea of modeling, but said she would be interested in delving into industry comments submitted to the EPA on the fence line monitoring proposed rule. Members asked Hall to share those comments—and Hall agreed—to get a better sense for what is at the heart of the fence line monitoring issue and what the best solution would be.

The letter was drafted by council member Jill Witkowski.

Meanwhile, individuals not on the council who offered public comments urged the council to support more stringent fence line monitoring and other requirements in the refinery rule.

For example, Denny Larson, executive director of the Global Community Monitor, said active—not passive—monitoring is needed by refineries to most accurately document what emissions are leaving their facilities. Jane Williams, executive director of California Communities Against Toxics, called for the council to promote “near-miss reporting requirements” for inclusion in the refinery rule, a step Williams said would allow refinery employees to report anonymously “near-miss” incidents and improve safety.

Cap-and-Trade, Carbon Tax 

The council decided to take more time to research and consider the acceptability of cap-and-trade being included in states' power plans as it relates to the Clean Power Plan and the potential for a national carbon tax. Under the plan, the agency would set unique carbon dioxide emission rates for the utility sectors in each state, and the states would then be responsible for developing their own plans to meet those targets.

A draft letter that was written by council member Nicky Sheats advised McCarthy to explicitly prohibit “allow[ing] states to meet their obligations under the proposed rule through the use of carbon trading, carbon capture and sequestration or new nuclear electricity generation, or by extending the life of nuclear plants that are scheduled to close.”

Sheats maintained that cap-and-trade approaches would put environmental justice communities at risk of exposure to more pollution; however, council member Deidre Sanders said there are benefits to approaches similar to the one implemented in California under Senate Bill 535. The California legislation requires 25 percent of the proceeds from the state's greenhouse gas emissions cap-and-trade program to be allocated to disadvantaged communities.

“We don’t want to give the impression that we would allow carbon trading in exchange for funds from carbon trading,” Sheats responded.

Sanders, environmental justice program manager for Pacific Gas & Electric Co., questioned whether language stipulating that no mechanism or tool used in a state plan under Section 111(d) of the Clean Air Act could worsen pollution for disadvantaged communities would work. Sheats, director of the Center for the Urban Environment at Thomas Edison State College in Trenton, N.J., and other members agreed to discuss these issues further, potentially with EPA representatives, at a later meeting.

“There’s a lot of misunderstanding and lack of understanding on carbon taxes and cap-and-trade,” Michael Ellerbrock, a council member and a Virginia Polytechnic Institute and State University professor, said. “The more discussions we can have the better.”

Farmworker, Chemical Safety 

Members approved a separate letter drafted by Witkowski, of San Diego Coastkeeper, to the administrator on the farmworker protection proposal. The agency has delayed its final version of the rule that would set new standards to protect agricultural workers from pesticides exposure.

The letter urged the agency to prohibit children under 18 from working as pesticide applicators; to improve training and recordkeeping requirements; to ensure workers don't have to ask their bosses to obtain information regarding the pesticides they work with; to improve protections from pesticide drift for families, workers and nearby residents; and to improve safeguards for pesticide handlers.

A letter to Mathy Stanislaus, the assistant EPA administrator for solid waste and emergency response, that called for more stringent regulation of chemical facilities under Section 112(r) of the Clean Air Act was also approved.

The council also requested in the letter drafted by council member Vernice Miller-Travis that the agency follow up with the council and with environmental justice groups regarding other queries that have been sent to the agency on the Risk Management Plan issue.

Miller-Travis is vice chair for the Maryland State Commission on Environmental Justice and Sustainable Communities.

The council didn't discuss its Title VI draft letter during the teleconference.

EJ 2020 Action Agenda 

The EPA will begin its own outreach next month regarding its upcoming five-year environmental justice plan, Charles Lee, EPA deputy associate administrator for environmental justice, told the council.

The “EJ 2020 Action Agenda” will focus on deepening the incorporation of environmental justice practices into agency programs, collaborating with partners to help overburdened or disadvantaged communities and starting to demonstrate progress on outcomes in communities, Lee said.

These will include actions such as incorporating environmental justice concerns into rulemakings and working with federal agencies to leverage federal resources for communities, he said.

The plan will follow and build on Plan EJ 2014, Lee told the council. The agency will begin communicating with stakeholders on its upcoming 2020 agenda in April and will present additional details to the council at a later meeting, Lee said.

“It’s really about translating what we have accomplished and we have learned over the last several years to [help] overburdened or disadvantaged communities.” Lee said.

To contact the reporter on this story: Rachel Leven in Washington at

To contact the editor responsible for this story: Larry Pearl at

All of the draft council letters are available at