2023 -- H 6196

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LC002637

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2023

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A N   A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- ENVIRONMENTAL JUSTICE

ACT

     Introduced By: Representatives Alzate, Batista, Giraldo, Potter, Boylan, Speakman,
Henries, Felix, Morales, and Tanzi

     Date Introduced: March 24, 2023

     Referred To: House Environment and Natural Resources

     It is enacted by the General Assembly as follows:

     SECTION 1. Title 42 of the General Laws entitled "STATE AFFAIRS AND

GOVERNMENT" is hereby amended by adding thereto the following chapter:

CHAPTER 17.11

ENVIRONMENTAL JUSTICE ACT

     42-17.11-1. Short title.

     This chapter shall be known and may be cited as the "Environmental Justice Act".

     42-17.11-2. Definitions.

     As used in this chapter:

     (1) "Council" means the coastal resources management council.

     (2) "Cumulative impacts" means an exposure, public health or environmental risk, or other

effect occurring in a specific geographical area, including from any environmental pollution

emitted or released routinely, accidentally, or otherwise, from any source, and assessed based on

the combined past, present, and reasonably foreseeable future emissions and discharges affecting

the geographical area. "Cumulative impacts" shall be evaluated based on any applicable guidance

issued by the department.

     (3) "Department" means the department of environmental management (DEM).

     (4) "Director" means the director of the department of environmental management.

     (5) "Environmental justice" means the fair treatment and meaningful involvement of all

people regardless of race, color, national origin, English language proficiency, or income with

respect to the development, implementation, and enforcement of environmental laws, regulations,

and policies.

     (6) "Environmental justice focus area" means a neighborhood, community, census tract or

other geographically bounded region that meets one or more of the following criteria and has been

designated as such pursuant to § 42-17.11-3:

     (i) Annual median household income is not more that sixty-five percent (65%) of the

statewide annual median household income;

     (ii) Minority population is equal to or greater than forty percent (40%) of the population;

     (iii) Twenty-five percent (25%) or more of the households lack English language

proficiency; or

     (iv) Minorities comprise twenty-five percent (25%) or more of the population and the

annual median household income of the municipality in the proposed area does not exceed one

hundred fifty percent (150%) of the statewide annual median household income.

     (8) "Fair treatment" means no group of people should bear a disproportionate share of the

negative environmental consequences resulting from industrial, governmental, or commercial

operations or policies.

     (9) "Meaningful involvement" means:

     (i) People have an opportunity to participate in decisions about activities that may affect

their environment and/or health;

     (ii) The public's contribution can influence the regulatory agency's decision;

     (iii) Community concerns will be considered in the decision-making process; and

     (iv) Decision makers will seek out and facilitate the involvement of those potentially

affected.

     (10) "Permit" means any permit, registration, or license issued or renewed by the

department or the council establishing the regulatory and management requirements for a regulated

activity as authorized by federal law or state law where there is a possibility of cumulative impacts

in an environmental justice focus area, including any consistency determination made by the

council.

     (11) "Permitted activity" means permitting for any of the following facilities:

     (i) Electric generating facility;

     (ii) Resource recovery facility or incinerator;

     (iii) Sludge combustor facility or incinerator;

     (iv) Transfer station, recycling center, or other solid waste facility;

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     (v) Landfill, including, but not limited to, a landfill that accepts ash, construction or

demolition debris, or solid waste;

     (vi) Medical waste incinerator;

     (vii) Pyrolysis or gasification facility;

     (viii) Scrap metal facility;

     (ix) Auto salvage operations and/or facility;

     (x) Asphalt plant;

     (xi) Petroleum storage facility;

     (xii) Ethylene oxide manufacturing and/or storage facility;

     (xiii) Construction and/or demolition debris processing facility; or

     (xiv) The renewal of any permit listed in this definition.

     42-17.11-3. Establishment of environmental justice areas.

     (a) No later than nine (9) months after the effective date of this chapter, the department

shall propose the designation of environmental justice focus areas in the state. The department shall

periodically, upon the publication of either the federal decennial census or an update to the relevant

state or federal data, propose new designations or the removal thereof.

     (b) The director may propose additional designations of an environmental justice focus

area upon the petition of at least ten (10) residents of a geographically bounded area. In order to be

considered, the petition shall include a detailed statement explaining why the area was not initially

included and provide justification for its designation as an environmental justice area.

     (c) Within six (6) months of any proposed designation or removal of designation, the

department shall:

     (1) Prepare and publish a report establishing the justification for its designation or the

removal of its designation.

     (2) Transmit the report prepared pursuant to subsection (c)(1) of this section at least thirty

(30) days in advance of the public hearing required pursuant to subsection (c)(3) of this section to

the governing body and clerk of the municipality in which the environmental justice focus area

designation is being considered. The public shall be notified of the proposed change in designation

via publication through the council's and the department's websites and through a newspaper,

newsletters or other media that specifically focus on the community near the site.

     (3) Organize and conduct a public hearing that provides for the fair treatment and

meaningful participation of the public. The department shall publish public notices of the hearing

through the department's websites and through a newspaper, newsletter and other media that

specifically focus on the community near the site not less than twenty-one (21) days prior to the

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hearing. When appropriate, the notices shall be published in Spanish, Portuguese and other

languages. At least fourteen (14) days prior to the date set for such hearing, a copy of the public

notice shall be sent to the governing body and the clerk of the municipality in which the

environmental justice focus area designation is being made. At the public hearing, the department

shall present its report and take public comment regarding the designation at that time or by written

comment following the hearing until such time as a designation is made. The department shall make

available a transcript of the hearings to an interested party upon request.

     (d) No later than thirty (30) days after any public hearing held pursuant to subsection (c)(3)

of this section, the department shall either make final or rescind its designation of an environmental

justice focus area. Such determination shall contain the department’s findings and response to the

public comment received. The department, when evaluating the designation, shall assess the

community support for the designation, as demonstrated through the public hearing conducted

pursuant to subsection (c)(3) of this section, letters of support for, or opposition to, the proposed

new or expanded facility, and any ordinance or resolution adopted by the governing body of the

municipality in which the environmental justice focus area is located. The department shall rescind

the designation upon a finding of:

     (1) The annual median household income of the proposed area is greater than one hundred

twenty-five percent (125%) of the statewide median household income;

     (2) A majority of persons age twenty-five (25) years and older in the proposed area have a

college education;

     (3) The proposed area does not bear an unfair burden of environmental pollution; or

     (4) The designation is not supported by the community as demonstrated by the public

hearing held pursuant to subsection (c)(3) of this section.

     (e) Not later than sixty (60) days after making the designation of an environmental justice

focus area final, the governing body of the municipality in which the environmental justice focus

area is located, after providing for the fair treatment and meaningful participation of the public,

shall designate a representative of the environmental justice focus area.

     42-17.11-4. Permit requirements in an environmental justice focus area.

     (a) The department and the council shall not approve any permitted activity in an

environmental justice focus area or within one-half (1/2) mile of an environmental justice focus

area, unless the permit applicant first:

     (1) Prepares a report assessing the environmental impact of the proposed permitted activity,

including any cumulative impacts on the environmental justice focus area, any adverse

environmental effects that cannot be avoided should the permit be granted, and the public health

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impact on the environmental justice focus area of the proposed permitted activity;

     (2) Transmits the report required to be prepared pursuant to subsection (a)(1) of this section

at least thirty (30) days in advance of the public hearing required pursuant to subsection (a)(3) of

this section to the department or council, the governing body and the clerk of the municipality in

which the environmental justice focus area is located, and the designated representative of the

environmental justice focus area. The report shall be made available to the public at least thirty (30)

days prior to the public hearing required pursuant to subsection (a)(3) of this section; and

     (3) Organizes and conducts a public hearing that provides for the fair treatment and

meaningful involvement of the public. The permit applicant shall publish public notices of the

hearing through the council and/or department's website and through a newspaper, newsletters and

other media that specifically focus on the community near the site not less than twenty-one (21)

days prior to the hearing. When appropriate, the notices shall be published in Spanish, Portuguese

or other languages. At least fourteen (14) days prior to the date set for such hearing, a copy of the

public notice shall be sent to the department or the council, the governing body and the clerk of the

municipality in which the environmental justice focus area is located, and the designated

representative of the environmental justice focus area. At the public hearing, the permit applicant

shall provide clear, accurate, and complete information about the proposed permitted activity and

the potential environmental and health impacts of the permitted activity. The council and/or

department, in addition to receiving testimony during the public hearing, shall accept written

testimony or comments following the public hearing until such time as a decision on the permit is

issued. The applicant shall within seven (7) days provide a transcript of the public hearing to the

department, who shall make it available to an interested party upon request.

     (b) The department or council shall not issue a decision on the permit application until at

least forty-five (45) days after the public hearing held pursuant to subsection (a)(3) of this section.

Notwithstanding the provisions of any other law, or rule or regulation adopted pursuant thereto to

the contrary, the department or council may deny a permit application in an environmental justice

focus area upon a finding that the approval of the permit would, together with the cumulative

impacts posed by the existing conditions, including conditions resulting from already permitted

activities, in the environmental justice focus area, constitute an unreasonable risk to the health of

the residents of the environmental justice focus area or to the environment in the environmental

justice focus area.

     (c) The department or council, when evaluating an application for a permit pursuant to this

section, shall assess the community support for the proposed permitted activity, as demonstrated

through the public hearing conducted pursuant to subsection (a)(3) of this section, letters of support

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for, or opposition to, the proposed permitted activity, and any ordinance or resolution adopted by

the governing body of the municipality in which the environmental justice focus area is located.

Community support or opposition alone shall be insufficient grounds on which to approve or deny

a permit, though the department shall respond to any claim made by members of the public, their

representatives, and/or their experts that the proposed permit is inconsistent with an applicable law,

rule or regulation.

     (d) If a permit applicant is applying for more than one permit for a proposed permitted

activity, the permit applicant shall only be required to comply with the provisions of this section

once for the same facility in the same location, unless the department, in its discretion, determines

that more than one public hearing is necessary due to the complexity of the proposed permitted

activity. Nothing in this section shall be construed to limit the authority of the department to hold

or require additional public hearings.

     42-17.11-5. Implementation.

     (a) The department and council shall adopt rules and regulations to implement the

provisions of this chapter.

     (b) The department may issue guidance on how to evaluate cumulative impacts pursuant

to § 42-17.11-4(a)(1). The department shall publish the guidance document on its website.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- ENVIRONMENTAL JUSTICE

ACT

***

     This act would require the department of environmental management to create a list of

environmental justice areas. Upon adoption of the list of environmental justice areas, the act would

establish requirements which would have to be met by an applicant prior to the department of

environmental management (DEM) or the coastal resources management council (CRMC) issuing

permits for an activity that would have an environmental impact or would increase the cumulative

impacts on an environmental justice area.

     This act would take effect upon passage.

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