Bill Summary – FastDemocracy

H-2894.2
                           SUBSTITUTE HOUSE BILL 2070
     State of Washington         68th Legislature       2024 Regular Session
     By   House    Environment   &   Energy   (originally sponsored  by
     Representatives Mena, Pollet, Fitzgibbon, Berry, Simmons, Reed,
     Ormsby, Ramel, Fey, Street, Slatter, Ortiz-Self, Alvarado, Doglio,
     Cortes, Riccelli, Santos, Reeves, and Macri)
     READ FIRST TIME 01/31/24.
      AN   ACT    Relating   to   integrating    environmental  justice
  considerations into certain project decisions; adding new sections to
  chapter 43.21C RCW; and creating a new section.
 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
     NEW SECTION. Sec. 1. The purpose of this act is to reduce the
 disparities in cumulative environmental and health impacts in
 Washington and improve the health of all Washington residents.
     NEW SECTION. Sec. 2. A new section is added to chapter 43.21C
 RCW to read as follows:
     The definitions in this section apply throughout sections 3
 through 6 of this act unless the context clearly requires otherwise.
     (1) "Adverse cumulative stressors" means that the combined
 stressor total of the pollution burdened community is higher than the
 pollution burdened community's geographic point of comparison or
 would be made higher than the pollution burdened community's
 geographic point of comparison as a result of a potentially impactful
 project's contribution.
     (2) "Adverse environmental and public health stressor" means a
 stressor in the pollution burdened community that is higher than a
 pollution burdened community's geographic point of comparison or
                                       p. 1                         SHB 2070
 would be made higher than a pollution burdened community's geographic
 point of comparison as a result of a potentially impactful project's
 contribution.
     (3) "Change in use" means a change in the type of operation of an
 existing potentially impactful project that significantly increases
 the potentially impactful project's contribution to any environmental
 and public health stressor in a pollution burdened community.
     (4) "Combined stressor total" means the sum of adverse
 environmental and public health stressors in a pollution burdened
 community.
     (5)(a) "Compelling public interest" means a demonstration by a
 proponent of a proposed new potentially impactful project that the
 potentially   impactful   project  primarily   serves   an   essential
 environmental, health, or safety need of the individuals in a
 pollution burdened community, is necessary to serve the essential
 environmental health or safety need, and that there are no other
 means reasonably available to meet the essential environmental,
 health, or safety need.
     (b) "Compelling public interest" does not include consideration
 of the economic benefits of a proposed new potentially impactful
 project or the expansion of an existing potentially impactful
 project.
     (6)(a) "Disproportionate impact" means the potentially impactful
 project cannot avoid either:
     (i) Creating adverse cumulative stressors in a pollution burdened
 community as a result of the potentially impactful project's
 contribution; or
     (ii) Contributing to an adverse environmental and public health
 stressor in a pollution burdened community that is already subject to
 adverse cumulative stressors.
     (b) A potentially impactful project located either in whole or in
 part in a pollution burdened community is capable of having a
 disproportionate impact on that community.
     (7) "Environmental justice impact statement" means a systematic,
 interdisciplinary, and integrated assessment of environmental and
 public health conditions in a pollution burdened community that
 identifies and analyzes:
     (a) Existing environmental and public health stressors;
     (b) Any adverse environmental and public health stressors;
     (c) The presence or absence of adverse cumulative stressors;
                                     p. 2                         SHB 2070
     (d)   Potential   environmental  and   public  health   stressors
 associated with a potentially impactful project;
     (e) Whether the potentially impactful project can avoid causing
 or contributing to a disproportionate impact;
     (f) Alternative locations where the potentially impactful project
 could be located;
     (g) The measures the potentially impactful project proposes to
 implement to avoid or mitigate causing or contributing to any
 disproportionate impact; and
     (h) Where applicable, how the new potentially impactful project
 serves a compelling public interest in a pollution burdened
 community.
     (8) "Environmental or public health stressors" means sources of
 environmental pollution or conditions that may cause potential public
 health impacts such as, but not limited to, asthma, cancer, elevated
 blood lead levels, cardiovascular disease, developmental problems,
 and low birth weight in the overburdened communities, including, but
 not limited to:
     (a) Concentrated areas of air pollution and mobile sources of air
 pollution:
     (i) Criteria pollutants including particulate matter 2.5 (PM
 2.5), particulate matter 10 (PM 10), sulfur dioxide (SO2), nitrogen
 dioxide (Nox), lead, carbon dioxide (CO), and ozone;
     (ii) Wildfire smoke;
     (iii) Ozone concentration;
     (iv) Diesel exhaust PM2.5 emissions;
     (v) Cancer risk from air toxics excluding diesel particulate
 matter;
     (vi) Noncancer risk from air toxics;
     (vii) Hazardous air pollutants;
     (viii) Toxic releases from facilities into air; and
     (ix) Proximity to heavy traffic roadways;
     (b) Water pollution:
     (i) Drinking water quality;
     (ii) Marine water quality;
     (iii) Fish and shellfish health advisories;
     (iv) Wastewater discharge;
     (v) Surface water quality;
     (vi) Groundwater quality; and
     (vii) Combined sewer overflows;
                                     p. 3                         SHB 2070
     (c) Environmental hazards in communities or contaminated sites:
     (i) Railways, airports, or ports;
     (ii) Lead risk from housing;
     (iii) Use of leaded fuels;
     (iv) Density of or proximity to known contaminated sites and
 clean-up sites:
     (A) Hazardous waste treatment, storage, and disposal sites;
     (B) Superfund sites;
     (C) Risk management plan sites;
     (D) Confirmed and suspected contaminated sites; and
     (E) Formerly used defense sites; and
     (v) Environmental covenants registry; and
     (d) Social determinants of health:
     (i) Unemployment;
     (ii) Educational attainment;
     (iii) People living in poverty;
     (iv) Percent of children eligible for free or reduced-priced
 lunch; and
     (v) Limited English-speaking households.
     (9) "Existing potentially impactful project" means a potentially
 impactful project, or any portion thereof, which, as of the effective
 date of this section, possesses a valid approved registration or
 permit from a lead agency for its operation or construction and is in
 operation.
     (10)(a) "Expansion" means a modification or expansion of an
 existing potentially impactful project's operations or footprint
 where the development could increase any environmental and public
 health stressor in a pollution burdened community.
     (b) "Expansion" does not include any activity that decreases or
 does not otherwise result in an increase in stressor contributions.
     (11) "Geographic point of comparison" means the comparison area
 and value used to determine whether a pollution burdened community is
 subject to one or more adverse environmental and public health
 stressors. A geographic point of comparison is determined by
 selecting the lower value of the 50th percentile of the state or
 county in which the pollution burdened community is located,
 calculated   excluding  the   values  of   other   pollution  burdened
 communities.
     (12) "Net environmental benefit" means a reduction of baseline
 environmental and public health stressors in a pollution burdened
                                     p. 4                         SHB 2070
 community or other action that improves environmental or public
 health stressors in a pollution burdened community, as determined by
 the lead agency.
     (13) "New potentially impactful project" means any potentially
 impactful project for which review under this chapter has not been
 initiated as of the effective date of this section or a change in use
 of an existing potentially impactful project. For the purposes of
 this chapter, an existing potentially impactful project that has
 operated without a valid approved registration or permit required by
 the department of ecology prior to the effective date of this section
 must be considered a new potentially impactful project.
     (14) "Pollution burdened community" means a community:
     (a) Ranked as a seven or higher on the environmental health
 disparities map developed under RCW 43.70.815;
     (b) Identified as disadvantaged using the climate and economic
 justice screening tool developed by the United States council on
 environmental quality, as that tool existed as of January 1, 2024; or
     (c) Identified as disadvantaged, or an analogous designation,
 using a successor to the climate and economic justice screening tool
 developed by the United States council on environmental quality, if
 adopted by rule by the department of ecology under section 7(3) of
 this act.
     (15)(a)   Except  as   provided  in   (b)   of   this  subsection,
 "potentially impactful project" means projects that are:
     (i) A major source of air pollution regulated and required to
 obtain an operating permit under chapter 70A.15 RCW;
     (ii) A source regulated and required to obtain a notice of
 construction permit under chapter 70A.15 RCW;
     (iii) A source regulated and required to obtain a prevention of
 significant deterioration permit under chapter 70A.15 RCW;
     (iv) A source regulated and required to obtain a general order
 permit under chapter 70A.15 RCW;
     (v) A significant source of air pollution from transportation
 impacts associated with the project;
     (vi) An incinerator, as defined in RCW 70A.216.010;
     (vii) A processing facility, combustor, or incinerator of
 municipal sewage sludge, as defined in RCW 70A.226.010;
     (viii) A sewage treatment plant;
                                     p. 5                         SHB 2070
     (ix) A transfer station, landfill, scrap metal facility, or other
 solid waste facility required to obtain a solid waste handling permit
 under chapter 70A.205 RCW;
     (x) A medical waste incinerator; or
     (xi) A project covered by a permit under chapter 90.48 RCW other
 than:
     (A) A construction general permit;
     (B) An industrial stormwater general permit;
     (C) A municipal stormwater general permit;
     (D) A fresh fruit packing general permit;
     (E) A boatyard general permit;
     (F) An environmental protection agency vessel general permit;
     (G) A winery general permit; and
     (H) A bridge and ferry terminal washing permit.
     (b) "Potentially impactful project" does not include:
     (i) A clean energy project, as that term is defined in RCW
 43.158.010;
     (ii) Projects related to facilities with North American industry
 classification system code 92811 (national security) or similar
 national security facilities administered by the United States
 government;
     (iii) Fish hatchery projects;
     (iv) Nonproject actions of a lead agency;
     (v)   Department  of   transportation   projects  of  less  than
 $15,000,000; or
     (vi) Project actions that propose to develop residential housing
 units only, such as affordable housing projects.
     (16) "Renewal" means the continuation of existing permitted
 operations at a major facility without change. A lead agency must
 treat as a renewal all modifications or changes of operations that
 decrease or do not otherwise increase a facility's contributions to
 stressors.
     NEW SECTION. Sec. 3. A new section is added to chapter 43.21C
 RCW to read as follows:
     (1) As a supplemental component of the analysis required under
 RCW 43.21C.030 for any proposed action associated with a new or
 expanding potentially impactful project or the renewal of an existing
 potentially impactful project's permit located or proposed to be
 located in whole or in part in a pollution burdened community, a lead
                                     p. 6                         SHB 2070
 agency must complete an environmental justice impact statement
 consistent with the requirements of this section. This section
 applies only to proposed actions associated with a new potentially
 impactful project, expansion of an existing potentially impactful
 project, or renewal of an existing potentially impactful project's
 permit for which review under this chapter had not been initiated as
 of the effective date of this section and is completed on or after
 January 1, 2027.
     (2) An environmental justice impact statement prepared by a lead
 agency under this section must assess:
     (a) The potential environmental and public health stressors
 associated with the proposed new or expanding potentially impactful
 project, or with the existing potentially impactful project, as
 applicable;
     (b) Any adverse environmental or public health stressors that
 cannot be avoided if the permit is granted; and
     (c) The environmental or public health stressors already borne by
 the pollution burdened community as a result of existing conditions
 located in or affecting the pollution burdened community.
     (3)(a) The lead agency must complete the environmental justice
 impact statement at or before the time that a proposed action
 receives a determination of significance, a determination of
 nonsignificance, or a determination of mitigated nonsignificance. The
 lead agency must complete the environmental justice impact statement
 if a proposed action may cause a disproportionate impact on an
 overburdened community and without regard to the type of threshold
 determination under this chapter that the project receives related to
 the environmental impacts of the proposed action other than its
 environmental justice impacts.
     (b)   Upon  completion   of  the   environmental  justice  impact
 statement, the lead agency must transmit the environmental justice
 impact statement to the office of financial management, and the
 office of financial management must publish the environmental justice
 impact statement on the website established under RCW 70A.02.090. The
 office of financial management's website list of environmental
 justice impact statements must include a brief description of the
 agency action undergoing review under this section, a brief summary
 of the findings of the environmental justice impact statement, and
 the methods for providing public comment under subsection (4) of this
 section for lead agency consideration as part of the environmental
                                     p. 7                         SHB 2070
 justice impact assessment. The environmental justice impact statement
 must be published by the office of financial management at least 30
 days in advance of the public hearing required under subsection (4)
 of this section, and must be published in a manner that meets
 community engagement rules adopted by the department of ecology that
 apply: (i) Best practices for outreach and communication to overcome
 barriers to engagement with highly impacted communities; (ii)
 processes that facilitate and support the inclusion of members of
 communities affected by agency decision making; and (iii) methods for
 outreach and communication with those who face barriers, language or
 otherwise, to participation.
     (4)(a) No sooner than 60 days after the publication by the office
 of financial management of the environmental justice impact statement
 under subsection (3) of this section, the lead agency must organize
 and conduct a public hearing in the pollution burdened community on
 the environmental justice impact statement. This hearing may be held
 coincident with other hearings required under this chapter or under
 other applicable laws, but only if the minimum public notice and
 community engagement requirements of this section and any similar
 requirements applicable to the coincident hearing are individually
 met. The notice of the public hearing published by the lead agency
 and the office of financial management must be mailed to each
 residence located in the pollution burdened community to notify
 residents that their residence is located in a pollution burdened
 community and must include the date, time, and location of the public
 hearing, a description of the proposed potentially impactful project,
 a brief summary of the environmental justice impact statemen