In a 5-4 vote, Cincinnati City Council adopted a new Environmental Justice Ordinance on June 24, 2009 over the objections of the Cincinnati Regional Chamber. The ordinance, which adds Chapter 1401 to Title X of the Cincinnati Municipal Code, creates an air toxics risk assessment review and air permitting process that will be administered by the Cincinnati Office of Environmental Quality.
Industrial facilities in Cincinnati planning a "Proposed Project" that meets any one of eight ambiguous and broadly defined applicability criteria (related to air emissions) would be subject to the risk assessment requirements. These criteria include the need to obtain a new or modified Title V, New Source Review, or synthetic minor air permit (excluding renewals), although until additional policy guidance is issued, several questions remain unanswered about the applicability distinctions for new versus existing facilities. If subject, facilities will need to submit a detailed risk assessment report to the "EJ Examiner" addressing chronic carcinogenic impacts and acute health impacts within a 1 mile radius surrounding their facility, along with an assessment of risks of chemical releases due to "accidents". Through an air dispersion modeling analysis, a facility would need to demonstrate that emissions do not cause impacts associated with an excess cancer risk greater than one in one million, or an acute health impact hazard quotient greater than 1.0. Chronic non-carcinogenic impacts are not covered by the Ordinance.
The EJ Examiner, who will be employed by the Cincinnati Office of Environmental Quality, will have broad discretion in determining what is required for a given project and what will be approved, as the Ordinance is open-ended about the specific methodologies to be followed. Also, the Ordinance provides no timeline within which the EJ Examiner's review must be completed. Following a 30-day public notice period, the Examiner will be able to grant, conditionally grant (by imposing new limitations or terms on the project), or deny a permit for the project.
Trinity's opinion is that there are technical and procedural flaws with the Ordinance that, if not addressed through revisions or policy clarifications, will lead to significant uncertainty, costs, and compliance liabilities for potentially affected facilities. For example, there are no defined list of air toxics compounds to be covered or de minimis thresholds. Further, there are no defined measures to address situations in which risks above the target thresholds are revealed.
At the request of the Cincinnati Regional Chamber of Commerce, Trinity prepared a detailed set of comments on the draft EJ Ordinance in May 2009 laying out many of the perceived technical and procedural flaws. Trinity also participated with Chamber representatives in meetings with City Council members to educate them on these issues so that revisions to the Ordinance would be pursued. Although this was helpful in garnering nay votes from some Council members, the political momentum behind this initiative was too great to stave off passage.
The new Ordinance will take effect in 180 days. Legal action against the Ordinance is expected, likely exploring the question of whether a super majority vote of Council was required and/or the legality of an Ordinance that is duplicative to and potentially inconsistent with existing state programs. Trinity will continue to track developments with this Ordinance and provide updates to our clients over the next 6 months.