SENATE DOCKET, NO. 1824        FILED ON: 1/18/2019

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 464

The Commonwealth of Massachusetts

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PRESENTED BY:

James B. Eldridge

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act relative to environmental justice and toxics reduction in the Commonwealth.

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PETITION OF:

SENATE DOCKET, NO. 1824        FILED ON: 1/18/2019

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 464

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-First General Court
(2019-2020)

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An Act relative to environmental justice and toxics reduction in the Commonwealth.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. Chapter 21 of the General Laws, as so appearing, is hereby amended by creating a new section 68 that is to follow section 67, and inserting Section 68a as  follows:-

SECTION 1.  This Act may be cited as the ‘Environmental Justice Act.’

The Environmental Justice Act is intended to promote environmental justice, eliminate disparities with respect to exposure to environmental toxins, ensure access to environmental benefits within the Commonwealth, and implement Article 97 of the Constitution of the Commonwealth, which provides that the "people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose."

SECTION 2. Chapter 21A, Section 3 of the General Laws, as so appearing, is hereby amended by inserting the following definitions, which in this chapter shall have the following meanings unless the context clearly requires otherwise:-

“Advisory Council,” the Massachusetts Environmental Justice Advisory Council.

“Department,” the Department of Environmental Protection.

“Environmental justice,” the right to be protected from environmental pollution and to live in and enjoy a clean and healthful environment regardless of race, income, national origin or English language proficiency. Environmental justice shall include the equal protection and meaningful involvement of all people with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies and the equitable distribution of environmental benefits.

"Environmental Benefits," access to funding, open space, enforcement, technical assistance, training, or other beneficial resources disbursed by the executive secretariats and their agencies and offices.

"Environmental Justice Population," a neighborhood in which the annual median household income is equal to or less than 65 percent of the statewide median or in which minorities comprise 25 percent or more of the population or in which 25 percent or more of households lack English language proficiency.  Where a neighborhood does not meet any of those criteria, but a geographic portion of that neighborhood meets at least one of those criteria, the Secretary may designate that geographic portion as an environmental justice population upon petition of at least 10 residents of that geographic portion.

"Equal Protection," that no group of people, because of race, ethnicity, class, gender, or disability bears an unfair share of environmental pollution from industrial, commercial, state and municipal operations or have limited access to natural resources, including waterfronts, parks and open space, and water resources.

“Executive Office of EEA,” the Executive Office of Energy and Environmental Affairs.

"Lacking English Language Proficiency" refers to households that, according to federal census forms, do not have an adult proficient in English.

“MEPA,” the Massachusetts Environmental Policy Act, M.G.L. Ch.30, Sections 61-62H.

"Neighborhood,” a census block group as defined by the U.S. Census Bureau but not including people who live in college dormitories or people under formally authorized, supervised care or custody such as federal or state prisons.

“Secretary of EEA,” the Secretary of Energy and Environmental Affairs.

“Secretariats,” the Executive Offices of the Commonwealth and their Secretaries, inclusive of but not limited to the Executive Offices and Secretaries of Energy and Environmental Affairs, Health and Human Services, and Transportation.

"Supplemental Environmental Project," environmentally beneficial projects, the implementation of which primarily benefits public health, safety and welfare, and the environment.

“Toxics Release Inventory,” the Toxics Release Inventory and Toxics Release Inventory Program of the United States Environmental Protection Agency.

“TRI Facility,” any industrial or commercial facility subject to the regulations, policies, or reporting requirements of the Toxics Release Inventory Program of the United States Environmental Protection Agency or comparable laws or regulations of the Commonwealth for the management and control of pollutants or toxins that pose a significant risk to public health or the environment.

SECTION 3. Chapter 21 of the General Laws, as so appearing, is further amended by inserting section 68b as follows:-

By no later than 180 days after the effective date of this Act, the Executive Office of EEA shall convene the Massachusetts Environmental Justice Advisory Council. The Advisory Council shall provide independent advice and recommendations to the Governor, the Secretary of EEA, and the other Secretariats about broad, cross-cutting issues related to environmental justice and on policies and practices and specific actions that the Commonwealth should implement to ensure that the objectives of this Act are accomplished.

The Advisory Council shall consist of at least nine, but not more than 15 persons, including a chair designated by the Council and approved by the Governor. No less than two persons shall be appointed by the Senate President and no less than two persons by the Speaker of the House of Representatives, with the remainder appointed by the Governor. The Advisory Council shall be comprised of environmental justice stakeholders including: scientific or other experts in environmental or public health matters holding academic position in colleges, universities or other research institutions and who work regularly in, or conduct substantial research regarding environmental justice concerns;  representatives of the environmental nonprofit sector;  representatives of conservation commissions or boards of health; residents or elected officials of Environmental Justice Population neighborhoods. No fewer than four of the persons appointed to the Advisory Council shall be residents of Environmental Justice Population neighborhoods within the Commonwealth.

A majority of the serving members of the Advisory Council shall be deemed a quorum. The Advisory Council shall establish such rules for conducting its activities and may amend such rules as it deems reasonable, subject to the Governor’s approval and consistent with the provisions and purposes of this Act.

The Advisory Council shall meet at such times and places as determined by the Advisory Council and its chair and shall submit an initial report to the Governor within six months following the appointment of the Council’s members. Thereafter the Advisory Council shall meet at least semi-annually and submit supplemental reports giving advice and recommendations to the Governor and Secretary of EEA no less often than once per year.

The Advisory Council may hold public meetings, at its discretion or at the request of the Governor or the Secretary of EEA, for the purpose of fact-finding, receiving public comments, and conducting inquiries concerning environmental justice, and shall prepare for public review and include in its reports a summary of the comments and recommendations made at the public meetings.

The Governor and Secretary EEA shall provide the Advisory Council with staffing and administrative support sufficient to accomplish the goals set out in this section.

SECTION 4. Chapter 21 of the General Laws, as so appearing, is further amended by inserting section 68c as follows:-

By no later than 180 days after the effective date of this Act, the Department of Environmental Protection (Department) shall develop and implement a strategy prioritizing enforcement in neighborhoods with environmental justice populations. The Department shall compile an annual report due at the end of each calendar year, detailing the number and types of enforcement actions in neighborhoods with environmental justice populations.

The strategy shall also address ensuring equal compliance and enforcement for facilities subject to environmental regulatory programs or permitting requirements and located in or near Environmental Justice Population neighborhoods; establishing a process for reviewing which MEPA thresholds apply for enhanced public participation and substantive review; ensuring brownfield remediation in or near Environmental Justice Population neighborhoods; and creating an online Environmental Justice repository of information about the Commonwealth’s environmental justice initiatives for the general public and project proponents.

SECTION 5. Said section 68 of Chapter 21, is further amended by inserting the following section 68d:-

The Department shall establish and maintain a Supplemental Environmental Project (SEP) bank. Such bank shall maintain an inventory of environmentally beneficial projects in communities with environmental justice populations that may be funded by violators in addition to paying penalties associated with the settlement of enforcement actions. SEPs shall conform to the Department’s policy on Supplemental Environmental Projects, ENF-07.001, as amended. The Department shall establish and maintain a website portal where the public and potential SEP recipients may submit potential SEP projects to be considered for future settlements. 

SECTION 6. Said section 68 of Chapter 21, is further amended by inserting the following section 68e:-

The Secretary of EEA shall, in consultation with the other Secretariats  and no less often than every five years, publish a progress report on environmental justice, incorporating the recommendations of the Advisory Council as appropriate, incorporating enforcement and SEP activities undertaken, reporting metrics on reduction of pollution in neighborhoods with environmental justice populations, and outlining further policy actions. The report shall be filed with the clerk of the House of Representatives, the clerk of the senate, the chairs of the joint committee on environment, natural resources and agriculture, the chairs of the joint committee on public health, and the chairs of the joint committee of telecommunications, utilities, and energy.

SECTION 7. Said section 68 of Chapter 21, is further amended by inserting the following section 68f:-

The Department shall work with the Department of Public Health to establish health risk assessment guidelines (using the best available science and established EPA health risk assessment parameters); develop an on-line mapping tool that is accessible by the public and identifies Environmental Justice populations by census tract, sources of pollution according to the health risk assessment guidelines in each EJ census tracts, and identify harmful effects to human health or to ecological systems resulting from exposure to each pollution source. The Department of Public Health shall prioritize census tracts with the worst health risk outcomes and develop strategies for reducing public health threats.

SECTION 8.  Section 62 of Chapter 30 of the General Laws is hereby amended by inserting the following definitions after the definition of “Agency”

“Environmental Justice,” the right to be protected from environmental pollution and to live in and enjoy a clean and healthful environment regardless of race, income, national origin or English language proficiency. Environmental justice shall include the equal protection and meaningful involvement of all people with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies and the equitable distribution of environmental benefits.

"Environmental Benefits," access to funding, open space, enforcement, technical assistance, training, or other beneficial resources disbursed by the executive secretariats and their agencies and offices.

"Environmental Justice Population," a neighborhood in which the annual median household income is equal to or less than 65 percent of the statewide median or in which minorities comprise 25 percent or more of the population or in which 25 percent or more of households lack English language proficiency  Where a neighborhood does not meet any of those criteria, but a geographic portion of that neighborhood meets at least one of those criteria, the Secretary may designate that geographic portion as an environmental justice population upon petition of at least 10 residents of that geographic portion.

"Equal Protection," that no group of people, because of race, ethnicity, class, gender, or handicap bears an unfair share of environmental pollution from industrial, commercial, state and municipal operations or have limited access to natural resources, including waterfronts, parks and open space, and water resources.

"Lacking English Language Proficiency" refers to households that, according to federal census forms, do not have an adult proficient in English.

"Neighborhood,” a census block group as defined by the U.S. Census Bureau but not including people who live in college dormitories or people under formally authorized, supervised care or custody such as federal or state prisons.

SECTION 9. Section 62B of Chapter 30 of the General Laws is hereby amended by inserting the following paragraph after the last paragraph:

An environmental impact report shall include an enhanced analysis of impacts and mitigation for any project located in or within one mile of an environmental justice population, and within five miles of an environmental justice population for a project that exceeds an Environmental Notification Form threshold for air. An enhanced analysis shall include, at a minimum, analysis of multiple air impacts; data on baseline public health conditions within the affected environmental justice population; analysis of technological, site planning, and operational alternatives to reduce or eliminate impacts; and proposed on-site and off-site mitigation measures to reduce multiple impacts and increase environmental benefits for the affected environmental justice population and to further environmental justice and equal protection for that population.

SECTION 10.   Section 62C of chapter 30 of the General Laws is hereby amended by inserting after the first paragraph, following the word “documents” the following paragraph:

To enable the public to participate in decisions that affect their health and safety and the environment, the Secretary shall maximize opportunities for public involvement. Such opportunities shall encourage consultation with the public early in the application processes to foster a robust  analysis and the active involvement of the interested or affected persons. In cases where the proposed project has the potential to impact a neighborhood with an environmental justice population lacking English language proficiency,  said environmental impact report shall be in English and in any other language spoken by the environmental justice population, describing the proposed facility and its location, the range of potential environmental and health impacts of each pollutant, the application and review process, and a contact person, with phone number and address, from whom information will be available as the application proceeds.There shall be enhanced public participation for any project located in or within one mile of an environmental justice population, and within five miles of an environmental justice population for a project that exceeds a mandatory Environmental Impact Report threshold for air. Enhanced public participation may include use of alternative media such as community and ethnic newspapers and other media, use of alternative information repositories, and translation of materials or interpretation services prior to and during public meetings where a significant portion of the relevant environmental justice population uses a primary language other than English in their home. When scheduling public meetings, the Secretary shall recommend and may require that project proponents consider the time of the meeting, availability of public transportation, and whether the locations are child-friendly and culturally appropriate. To the extent feasible, meetings should be held in places that community members already routinely use and feel comfortable visiting. Additionally, the Secretary shall recommend that project proponents consider whether outreach efforts should include an educational component to ensure that community members have the information necessary to evaluate a project’s potential impacts.

SECTION 11.  Section 62E of Chapter 30 of the General Laws is hereby amended by adding, after the first paragraph, the following paragraph:

However, no agency shall exempt any project located in an Environmental Justice Population and reasonably likely to cause damage to the environment, as defined in section 61, from the provisions of sections 62 to 62H, inclusive. This paragraph shall not apply to emergency actions essential to avoid or eliminate a threat to public health or safety, or a threat to any natural resources, undertaken in compliance with section 62F.

SECTION 12. Said section 68 of Chapter 21, is further amended by inserting the following section 68g:-

By no later than 30 days after the effective date of this Act, the Secretary of EEA shall direct each Department, Board, or other agency or program in the Secretariat with jurisdiction over the permitting of any TRI Facility to issue recommendations for ways to substantially decrease the further siting or expansion of TRI Facilities within Environmental Justice Population neighborhoods.

By no later than 180 days after the effective date of this Act, the Secretary of EEA shall initiate a rule-making process that shall establish a cap on the total number of TRI Facilities that may be sited or expanded within any Environmental Justice Population neighborhood. That rule-making process shall prioritize and give substantial weight to achieving a substantial reduction of the risk of the exposure of residents of the neighborhood to toxins listed in the TRI Inventory and shall prioritize and give substantial weight to providing and preserving the access of the residents of the neighborhood to a clean and healthful environment regardless of race, income, national origin or English language proficiency.

SECTION 13. Said section 68 of Chapter 21, is further amended by inserting the following section 68h:-

By no later than 30 days of the effective date of this Act, the Secretary of EEA shall appoint a Director of Environmental Justice for the secretariat. The Director of Environmental Justice shall have such duties and authority as the Secretary of EEA deems reasonable to ensure that the purposes of this Act are carried out. The Director shall liaise with the Advisory Council and other Secretariats and may have any other duties that the Secretary deems necessary to secure environmental justice. The Secretary shall not permit the position of Director of Environmental Justice to be vacant for more than sixty days.

SECTION 14. Said section 68 of Chapter 21, is further amended by inserting the following section 68h 1/4:-

By no later than 30 days after the effective date of this Act, all  Secretariats, other than EEA, shall designate an environmental justice coordinator for each Secretariat. The environmental justice coordinator shall be the main point of contact regarding environmental justice matters within that Secretariat, shall liaise with the Director of Environmental Justice within EEA, and shall be responsible for developing and implementing the environmental justice policy or strategy of that Secretariat, as created pursuant to this Act or any other law, regulation, or order.

SECTION 15. Said section 68 of Chapter 21, is further amended by inserting the following section 68h 1/2:-

No later than 180 days after the effective date of this Act, and except where already provided for elsewhere in this Act, each Secretariat shall develop a specific policy or strategy to promote environmental justice in ways that are tailored to the specific authority, mission, and programs under their jurisdiction. Secretariat strategies shall include, but not be limited to: i) identification of permitting or other applicable regulatory authority over development projects, brownfield remediation, industrial operations, and commercial facilities, which may impact Environmental Justice Populations and description of any mechanism to ensure that Environmental Justice Populations are protected in the review process; ii) identification of economic development opportunities, environmental benefits, and other discretionary funding programs that do, or appropriately should, consider the needs of an Environmental Justice Population in the award process; and iii) an enhanced public participation plan for Environmental Justice Populations potentially affected by development projects, brownfield remediation, industrial operations, and commercial facilities that focuses secretariat resources on outreach activities that enhance public participation opportunities in Environmental Justice Populations, including a plan for communicating in multiple languages and scheduling public meetings at locations and times convenient for neighborhood stakeholders. In determining whether a program protects and/or considers the needs of an Environmental Justice Population, the policy or strategy may use an existing definition of protected or priority population that varies from the definition under this Act so long as the intent of this Act is substantially met. Secretariat policies or strategies shall be reviewed every five years, and updated as needed.

SECTION 16. Said section 68 of Chapter 21, is further amended by inserting the following section 68i:-

An Interagency Environmental Justice Working Group shall be established to maximize state resources, research, and technical assistance to further the purposes of this Act and of environmental justice in the Commonwealth. The Environmental Justice Coordinators shall serves as their Secretariat representatives to the Interagency Environmental Working Group. The Director of Environmental Justice of the Executive Office of Energy and Environmental Affairs shall convene meetings of the Interagency Environmental Justice Working Group and serve as Chair. By no later than 90 days from the effective date of this Act, the Interagency Environmental Justice Working Group shall hold at least one meeting and develop a schedule for subsequent meetings, which shall take place no less than once a year.