Improve New Mexico's Air Quality-
Support the Health, Environment & Equity Impacts Regulation The Mountain View Coalition seeks your support for the proposed Health, Environment, and Equity Impacts Regulation.
The Mountain View Coalition has petitioned the Albuquerque-Bernalillo County Air Quality Control Board to adopt this draft regulation. Our purpose is to protect public health and the environment from air pollution. Mountain View Neighborhood, on the east bank of the Rio Grande in the far South Valley of Bernalillo County, is a residential and agricultural community. Our elementary school has been open for 100 years. We are predominantly Spanish-speaking, low-income, and working class. Since the 1970s, dirty industrial development has been dumped in our neighborhood. The Environmental Protection Agency has defined Mt. View as an environmental justice community, meaning our health is endangered due to the disproportionate amount of pollutants generated in our community. We have worked diligently for many years to counter the ongoing onslaught of industrial development.
Mountain View and other neighborhoods in the County that are at risk environmentally currently have no way to monitor the cumulative impacts of the disproportionate generation of air pollutants in their backyards. Pollution generated here in Mountain View contributes to the County's overall air pollution, causing the region to exceed federal limits on ozone. The new regulation will allow the City of Albuquerque Environmental Health Department (which oversees county-wide air quality) and the Air Quality Control Board to address the disparate impacts of air pollution by denying air pollution permits to new facilities proposed in communities that already bear a disproportionate burden. This new regulation will also contribute to better air quality county-wide. Our hope is that it will serve as a model for the State of New Mexico to establish a statewide cumulative impact law.
Please sign our petition to demonstrate the widespread support of this new regulation.
Here is the FAQ sheet on the proposed regulation:
Health, Environment & Equity Impacts Regulation FAQs
How will this regulation improve the lives of Bernalillo County Residents?
The new rule will allow the City of Albuquerque Environmental Health Department (EHD) and the Air Quality Control Board to address the disparate impacts of air pollution negatively impacting the health and quality of life of Bernalillo County residents by denying air pollution permits to facilities proposed in communities already bearing the disproportionate burden of air pollution. This will also contribute to better air quality county-wide and provide for a healthier Bernalillo County overall.
What does this regulation do and how does it do it?The regulation requires EHD to deny a permit application if it will be located in an overburdened community and negatively impact the health of residents in that community. Specifically, EHD and the permit applicant will work together to first identify whether the proposed polluting facility will be located in an overburdened community, meaning a community that is already facing the disparate impacts of existing air pollution.
If the facility is proposed to be located in an overburdened community, the applicant must perform a Disparate Impact Screening and evaluate nine identified Health Indicators.1 The permit application will be denied if any one of nine health indicators in the area already exceeds the county average for those indicators.
If the permit application is not denied based on the nine Health Indicators, but the facility will be located in an overburdened community, the permit applicant must provide a Health, Environment and Equity Impacts Analysis and Report (HEE Report) to EHD. If this HEE Report indicates that the proposed facility will violate certain conditions identified in the rule, the permit application will be denied. If the permit application is not denied by EHD, the EHD may issue the permit, subject to mitigation measures informed by the Health, Equity and Environment Report and the community.
How is the public able to participate in the process?
If EHD does not deny the permit application based on the Disparate Impacts Screening, the applicant will have to provide a Health, Environment and Equity Impacts Report to the Department. EHD must hold a public hearing on that Report in which the public will be able to
1 The nine identified Health Indicators are: 1) adult asthma rate, 2) child asthma rate, 3) the percentage of adults over age 65, 4) the percentage of children under age 18, 5) emergency department admission rate, 6) cancer rate or cancer mortality rate, 7) cardiovascular disease incidence or mortality rate, 8) autoimmune disease incidence or mortality rate, and 9) overall mortality rate.participate. Importantly, the new rule also allows for community testimony and community-based participatory research to be given the same weight as the technical expertise and testimony provided by the applicant and EHD. This testimony may influence whether EHD will deny a permit application and may be used to inform any mitigation measures included in an issued permit.
If EHD issues a permit to an applicant for a facility located in an overburdened community, EHD must also establish a Resident Advisory Committee, made up of self-selected residents from the community. This committee will meet twice per year with EHD to provide feedback on the facility’s compliance with permit conditions.
When will a permit application be denied?
There are two instances when EHD may deny a permit application based on this rule. The first occurs when the applicant performs a Disparate Impact Screening and any one of the nine health indicators listed exceeds the Bernalillo County average. If a permit is not denied based on the Disparate Impact Screening, EHD will deny a permit application if, based on the Health, Environment and Equity Impacts Report, the facility is shown to: 1) violate air quality standards, 2) result in the total emission of ten tons per year of Hazardous Air Pollutants in the overburdened community, or 3) the applicant has a facility that is not in compliance with existing permit conditions or is currently or in the last ten years has violated any environmental law of any state.
Important Definitions
● Overburdened Community: A census tract and all contiguous census tracts where the combined permitted emissions from all sources are 10 tons per year of Hazardous Air Pollutants or 25 tons per year of combined criteria pollutants and Hazardous Air Pollutants● Disparate Impact Screening: The process by which a permit applicant evaluates a census tract in which its operation is proposed and all contiguous census tracts to determine whether the proposed facility will impact an overburdened community.● Cumulative Impacts: The exposures, public health, and environmental effects from the combined emissions and discharges in a geographic area, including air emissions from all existing and reasonably foreseeable sources, routinely, accidentally or otherwise released and non-chemical stressors. Cumulative Impacts shall take into account sensitive populations and socio-economic factors.
For more information, contact: ejantz@nmelc.org or (505) 980-5239 HEEREG FAQs Nov 2022
Here is the legal petition submitted to the City of Albuquerque/Bernalillo County Air Quality Control Board:
ALBUQUERQUE-BERNALILLO COUNTY AIR QUALITY CONTROL BOARD
IN THE MATTER OF THE PETITION TO AMEND TITLE 20, CHAPTER 11 OF THE NEW MEXICO ADMINISTRATIVE CODE TO REQUIRE REVIEW AND CONSIDERATION OF HEALTH, ENVIRONMENT AND EQUITY IMPACTS
AQCB Petition No.
Mountain View Neighborhood Association, Mountain View Community Action. Friends of Valle de Oro,
Petitioners.The Mountain View Neighborhood Association, Mountain View Community Action and
Friends of Valle de Oro (collectively “Mountain View Coalition”), respectfully petition the Albuquerque-Bernalillo County Air Quality Control Board (“Board”) to hear and adopt the following proposed regulatory amendments to Title 20, Chapter 11 of the New Mexico Administrative Code, pursuant to its authority under the New Mexico Air Quality Control Act, NMSA 1978, §§ 74-2-1 et seq. (the “Act”), as amended, its implementing regulations, and NMAC 20.11.82.1 et seq. The proposed regulatory change is attached as Exhibit A.
The Mountain View Coalition submits this Petition and proposed rule change because public health and environmental impacts from air pollution in Albuquerque and Bernalillo County are heavily concentrated in low-income and neighborhoods of color causing increased risk of disease and lower life expectancy in those neighborhoods. In order to begin to address the profound inequalities in exposure to pollutants and attendant adverse health outcomes, the proposed rule requires that the Albuquerque Environmental Health Department, Air Quality Division (“Department”) consider the health, environmental and equity impacts of any new operation permitted under the Act and allow the Department to approve appropriate mitigation of those impacts. In support of its petition, the Mountain View Coalition STATES:1THE BOARD HAS THE LEGAL AUTHORITY TO ENACT THE PROPOSED RULE
1. The Board is authorized to adopt the proposed changes to the Board’s regulations pursuant to NMSA 1978, § 74-2-5(B)(1) and 20.11.82.1 et seq. NMAC.
2. Section 74-2-5(B)(1) specifically allows the Board to “adopt, promulgate ... and amend” regulations, consistent with the Act.
3. Further, the Act provides that Board regulations “shall prevent or abate air pollution.” NMSA 1978, § 74-2-5(B)(1).
4. The Act defines “air pollution” as emitting air contaminants into the outdoor atmosphere “in quantities and of a duration that may with reasonable probability injure human health or animal or plant life or as may unreasonably interfere with the public welfare ... or the reasonable use of property.” Id. at § 74-2-2(B).
5. Any regulation the Board promulgates must be consistent with the Act. § 74-2- 5(B)(1). See, Wylie Bros. Contracting Co. v. Albuquerque-Bernalillo County Air Quality Control Board, 1969-NMCA-089 ¶ 54, 80 N.M. 633, 644 (Local board regulations need not be identical to state regulations adopted by the state board, only consistent with statutory language).
6. The proposed regulation is consistent with the Act because it is intended to allow the Department and Board to evaluate the health and environmental equity impacts of air emissions from any proposed source on the environment, property and human health, assisting the Department and Board in preventing and abating air pollution.
7. Moreover, the proposed regulation is authorized by the Act. To achieve the goal of preventing and abating air pollution, the Act gives the Board the authority to require “any person” emitting “any air contaminant” to install, use and maintain emission monitoring devices,2sample emissions, and “provide ... reasonable information relating to the emission of air contaminants.” NMSA 1978, § 74-2-5(C)(6).
8. The Act also provides that the Board may adopt rules more stringent than the federal Clean Air Act or federal regulations or regulate areas, which are not regulated pursuant to the Clean Air Act or federal regulations, provided those rules will be more protective of public health and the environment. Id. at § 74-2-5(G).
9. In promulgating its regulations, the Board must give the weight it deems appropriate to all facts and circumstances including the “character and degree of injury to or interference with health, welfare, visibility and property,” “the public interest,” and the “technical practicability and economic reasonableness of reducing or eliminating air contaminants.” Id. at § 74-2-5(F).
10. Clean Air Act is the federal law that serves as the authority for the New Mexico Air Quality Control Act. Congress declared that the Clean Air Act was intended “to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population.” 42 U.S.C. § 7401(b)(1). As such, the rule also furthers the purposes of the Clean Air Act as it allows the Board to protect and promote public health.
OTHER JURISDICTIONS HAVE ENACTED HEALTH, ENVIRONMENTAL AND EQUITY IMPACTS ANALYSES
11. Other jurisdictions have acknowledged the health and environmental problems associated with the disparate impacts of pollution on low-income communities and communities of color, and have enacted rules to address those disparities.
12. In 2008, Minnesota’s legislature amended the Minnesota Environmental Policy Act to allow the Minnesota Pollution Control Agency (“MPCA”) to evaluate and address the3cumulative air impacts in a specific area of Minneapolis. Ellickson, Kristie, et al., Cumulative Risk Assessment and Environmental Equity in Air Permitting: Interpretation, Methods, Community Participation and Implementation of a Unique Statute, 8 Int. J. Environ. Res. Public Health 4140 (2011).
13. The amendment was enacted specifically to address the disproportionate impacts of air pollution in a low-income and minority area of Minneapolis that contained dense concentrations of polluting industry. Id. at 4142.
14. The statute requires not only that the MPCA consider the cumulative risks associated with sources of air pollution, but also environmental equity, i.e., the fairness of placing a polluting source in neighborhoods already burdened by air pollution.
15. The state of New Jersey has also enacted legislation, with implementing regulations pending, that is intended to remedy disproportionate air pollution impacts on communities of color. N.J. Rev. Stat. §§ 13:1d-157 – 161 (2021).
16. New Jersey’s statute requires that an applicant for certain permits, including air emission permits, in an overburdened community complete an “environmental justice impact statement” that discloses and evaluates the environmental stressors of the proposed facility and existing environmental stressors. Id. at §13:1d-160a.
17. New Jersey’s statute also requires the New Jersey Department of Environmental Quality to deny a permit application if it finds that the cumulative environmental stressors in an overburdened community are disproportionate compared to communities within the state that are not overburdened. Id. at § 13:1d-160c.4THE HEALTH, ENVIRONMENT AND EQUITY IMPACTS ANALYSIS RULE IS NECESSARY IN ALBUQUERQUE AND BERNALILLO COUNTY TO PREVENT AND ABATE AIR POLLUTION AND PROTECT PUBLIC HEALTH, THE ENVIRONMENT AND PROPERTY
18. This rule is necessary because the impacts of air pollution on low-income communities and communities of color in Bernalillo County are significant. The proposed regulation provides information necessary for the Department and Board to make decisions that better protect residents’ health, environment and property.
19. Air pollution is associated with a range of health problems, including cancer, heart disease and respiratory illnesses, among other diseases. See, e.g., Morello-Frosch, R. and Jesdale, B., Separate and Unequal: Residential Segregation and Estimated Cancer Risks Associated with Ambient Air Toxics in U.S. Metropolitan Areas, 114 Environmental Health Perspectives 386 (2006); Kampa, Marilena and Castanas, Elias, Human Health Effects of Air Pollution, 151 Environmental Pollution 362 (Jan. 2008); Straif, K., et al., eds., Air Pollution and Cancer, International Agency for Research on Cancer, Scientific Publication No. 161 (2013), available at: http://www.iarc.fr/en/publications/books/sp161/index.php; Danesh Yadzi, et al., Long-Term Association of Air Pollution and Hospital Admissions Among Medicare Participants Using a Doubly Robust Additive Model, 143 Circulation 1584 (April 20, 2021).
20. The health impacts of air pollution also negatively impact the economy, such that this rule promotes a robust and functional economy in Bernalillo County. See, e.g. Benjamin EJ, Virani SS, Callaway CW, et al., Heart disease and stroke statistics—2018 update: a report from the American Heart Association, 137 Circulation (2018); see also, Centers for Disease Control and Prevention, Health and Economic Costs of Chronic Diseases, available at: https://www.cdc.gov/chronicdisease/about/costs/index.htm#ref3521. Low-income and communities of color are particularly vulnerable to the effects of air pollution. See, e.g., Morello-Frosch, et al., Environmental Justice and Regional Inequality in Southern California: Implications for Future Research, 110 Environmental Health Perspectives 149 (2002); Stewart, John, et al., Environmental Justice and Health Effects of Urban Air Pollution, 107 J. of the Nat’l Med. Ass’n 50 (Feb. 2015); Pastor, Manuel, et al., The Air is Always Cleaner on the Other Side: Race, Space, and Ambient Air Toxics Exposures in California, 27 J. of Urban Affairs 127 (Dec. 2, 2016).
22. Low-income communities and communities of color are also particularly vulnerable to adverse health impacts of air pollution because polluting industries disproportionally locate in those communities. Environmental Justice and Regional Inequality in Southern California: Implications for Future Research, at 151-152.
23. In addition to being overburdened by polluting industry, low-income and communities of color have less access to health care and nutritious food than more advantaged communities. See, e.g., Riley, Wayne J., Health Disparities: Gaps in Access, Quality and Affordability of Medical Care, 123 Transactions of the Am. Clinical and Climatological Ass’n 167 (2012); Bower, Kelly M., et al., The Intersection of Neighborhood Racial Segregation, Poverty and Urbanicity and its Impact on Food Store Availability in the United States, 58 Preventative Medicine 33 (Jan. 2014).
24. These “social determinants of health,” or the conditions in places where people live, work and play that affect health, collectively amplify the health impacts of concentrated air emissions on overburdened communities. See, e.g., Cook, Quindelyn, et al., The Impact of Environmental Injustice and Social Determinants of Health on the Role of Air Pollution in6Asthma and Allergic Diseases in the United States, 148 J. of Allergy and Clinical Immunology 1089 (Nov. 2021).
25. As a result, public health professionals have recommended analyzing the cumulative health effects of multiple air contaminants from multiple sources. Environmental Justice and Regional Inequality in Southern California: Implications for Future Research at 149.
26. Like similar communities elsewhere in the United States, low-income communities and communities of color in Albuquerque and Bernalillo County are disproportionately impacted by air pollution and suffer disproportionate health problems because of those impacts.
27. A 2012 study on public health, pollution exposure, poverty and race demonstrates that low-income and minority communities in Bernalillo County have a greater risk than more affluent and non-minority communities to being exposed to environmental pollutants. Joint Center for Political and Economic Studies, Place Matters for Health in Bernalillo County: Ensuring Opportunities for Good Health for All (Sept. 2012) at 17-18 (“Good Health for All Study”). A copy of that study is attached as Exhibit B.
28. The Good Health for All Study examined the racial and economic data for census tracts in Bernalillo County and compared those data to data about life expectancy and sources of environmental pollution in the census tracts studied. Id. at 2.
29. The Good Health for All Study found that neighborhoods with higher populations of Latinos and recent immigrants with high levels of poverty are more likely to contain dense concentrations of polluting facilities. Id. at 16; Map 11.
30. These neighborhoods are located primarily in Downtown, the Southeast Heights, the South Valley and the North Valley. Id.731. Further, people in these “high risk neighborhoods” have an elevated risk for adverse health impacts and a shorter life expectancy. Id. at 17-19; 18, Figs. 6, 7.
32. Conversely, neighborhoods with higher proportions of White and wealthy residents have a lower concentration of toxic facilities and a longer life expectancy, and are considered “low risk neighborhoods”. Id.
33. Indeed, the difference in life expectancy between high risk neighborhoods and low risk neighborhoods is dramatic. The residents of high risk neighborhoods can expect to live an average of 5.2 fewer years than residents living in low risk neighborhoods. Id. at 1,13, Fig. 5.
34. The Good Health for All Study recommends several kinds of impact analyses as ways to address increased pollution risks in low-income and minority communities. Id. at 19-20. 35. Both the recommended impact assessments include evaluating the cumulative and
combined impacts of multiple pollution sources. Id.36. The Good Health for All Study recommendations echo those of the 2007
Environmental Justice Task Force (“Task Force”) that the Board created to review and evaluate the Board’s air quality permitting policies and practices.
37. The Task Force found that the Board’s policies, procedures and regulations, which are still in effect today, do not adequately address environmental and public health issues in communities disproportionately burdened by air pollution. Environmental Justice Task Force, Final Report Submitted to Albuquerque-Bernalillo County Air Quality Control Board at 5 (2008).
38. The Task Force recommended that the Board adopt cumulative environmental impact assessment provisions. Id.839. For all the above reasons, the Mountain View Coalition requests that the Board hear and adopt the proposed health, environmental and equity impact regulation because the regulation will allow the Board to address the cumulative and disparate burden of air pollution on Bernalillo County residents living in lower income communities of color. Petitioners anticipate a hearing on this Petition will take approximately five (5) days.
Respectfully submitted this 21st day of November, 2022.
NEW MEXICO ENVIRONMENTAL LAW CENTER
By: _________________________________ Eric Jantz
Maslyn Locke722 Isleta Boulevard SE Albuquerque, New Mexico 87105 (505) 989-9022 ejantz@nmelc.org mlocke@nmelc.org
Attorneys for Petitioners
