PA Dept. of Environmental Protection Updates Justice Policy

Tad J. Macfarlan

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David J. Raphael

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PADEP Releases Updated Environmental Justice Policy for Public Comment

by: Tad J. Macfarlan, David J. Raphael, Samuel R. Boden of K&L Gates - K&L Gates HUB

Tuesday, March 15, 2022

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On 11 March 2022, the Pennsylvania Department of Environmental Protection (DEP) released for public comment a draft updated Environmental Justice Policy (Draft EJ Policy), which would significantly expand the scope of DEP’s EJ initiatives with respect to permitting, enforcement, climate change, grant funding and oil and gas development. The Draft EJ Policy, which has been under development for several years, reflects Governor Wolf’s focus on environmental justice (EJ), which he defines as “[t]he fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the Commonwealth’s development, implementation, and enforcement of environmental laws, regulations, and policies.”¹

Ultimately, DEP can only act within the limits of its statutorily provided authority, and the Draft EJ Policy is a guidance document, not a law or regulation. However, the Draft EJ Policy reflects DEP’s desire to deploy existing laws to protect minority- and low-income communities from negative environmental impacts. As such, the regulated community should prepare for increased public participation and heightened enforcement from DEP in EJ areas, and consider submitting comments on the draft EJ Policy before the end of the public comment period on 11 May.

THE 2004 ENVIRONMENTAL JUSTICE PUBLIC PARTICIPATION POLICY

In 2004, DEP released its first Environmental Justice Public Participation Policy (2004 Policy).² The 2004 Policy will remain in effect until the Draft EJ Policy is finalized and adopted. The 2004 Policy requires permit applicants to follow heightened public participation requirements for certain permits in EJ areas, which DEP defines as any census tract with 30% or greater minority population or 20% or greater population at or below the poverty level. Permit applicants and permit holders can determine if they operate within such an area using DEP’s EJ Viewer map.³

Under the 2004 Policy, DEP strongly advises applicants who are seeking certain individual permits—known as “trigger permits”—to meet with community stakeholders, provide community members with clear information about proposed projects, and conduct public informational meetings. These trigger permits include, for example, wastewater discharge permits at or above 50,000 gallons per day, major source air permits, mining permits, and permits for waste treatment/disposal facilities. Additionally, DEP can apply the 2004 Policy to “opt-in permits” that are not permit types on the trigger permit list if DEP identifies community concerns, present or anticipated environmental impacts, or reasonably anticipated significant adverse cumulative impacts from the proposed action. DEP’s Office of Environmental Justice facilitates coordination between DEP, EJ communities, and permit applicants.⁴

In 2018, DEP released a draft revised EJ policy that included minor modifications to the 2004 Policy. It withdrew this draft policy in 2020 in order to develop a more comprehensive policy, which it released on 11 March 2022.

THE DRAFT EJ POLICY

DEP’s Draft EJ Policy includes significant revisions and additions to the 2004 Policy that fall into three categories: (1) expanding upon the existing 2004 EJ Policy; (2) creating new public engagement rules for oil and gas projects; and (3) increasing enforcement in EJ areas.⁵

Expanding Upon Existing EJ Policy

The updated Draft EJ Policy includes the following modifications to existing elements of the 2004 policy:

Updates the definition of “Environmental Justice Area” to “the geographic location where DEP’s EJ Policy applies.” Although the current low-income and minority percentage thresholds still apply, the updated Draft EJ Policy says that DEP will provide the methods for identifying EJ Areas in a separate supplement and can be updated “using the most recent data available.”
Enumerates a list of facility types, the permits for which may warrant treatment as “Opt-In Permits,” to guide DEP in applying the EJ Policy to non-trigger permits. These facilities include, for example, major sources of air pollution, resource recovery facilities or incinerators, and transfer stations.
Outlines opportunities for community members to comment on a permit application before, during, and after permit review. Under this updated framework, DEP must assist community members in understanding the proposed permits and work with community liaisons to keep communities informed about the status of a permit. This section includes reference to the Environmental Complaint Form for formal complaints concerning the operation of permitted facilities. This section does not place additional requirements on permit applicants.
Expands the EJ Policy to include DEP’s climate initiatives, brownfields redevelopment, and grant-making, to ensure that disproportionate impacts are considered for DEP actions beyond permitting decisions.
Formalizes the role and responsibilities of the Office of Environmental Justice, requiring the office to create an annual EJ Report and EJ Strategic Plan. It also requires the DEP Secretary to review the Environmental Justice Policy every four years.

Oil and Gas Public Engagement

Significantly, the Draft EJ Policy adds a new section requiring unconventional oil and gas operators to comply with new “public engagement” requirements. According to the Office of Environmental Justice’s website, this was a need identified by community members.⁶ The Oil and Gas Public Engagement process differs from other requirements in the Draft EJ Policy because it applies to ongoing permitted oil and gas operations, unlike the rest of the updated 2004 Policy, which is largely limited to new permit applications or violations.

The Oil and Gas Public Engagement process recommends that DEP’s Oil and Gas program identify, on an annual basis, unconventional oil and gas well operators within EJ areas and request that each operator in those areas provide an overview of their projects in understandable terms. The Oil and Gas program would also invite these operators to participate in community meetings. Finally, the Oil and Gas Public Engagement section instructs DEP to develop a webinar outlining the oil and gas permit process.

Increased Enforcement in EJ Areas

Finally, Section V of the Draft EJ Policy discusses inspections, compliance, and enforcement in EJ areas. According to the Draft EJ Policy, DEP will prioritize inspections and compliance in EJ areas, as well as other “areas where environmental and public health conditions, warrant increased attention.” DEP will further prioritize inspections and compliance based on facility type, compliance history, and other factors to minimize violations in EJ Areas. Additionally, DEP will develop and report methods for prioritizing compliance and enforcement.

When assessing civil penalties, DEP must act within statutory limits, and in determining penalty amounts DEP is typically guided by statutory provisions and program-specific civil penalty guidance documents that require consideration of a number of factors (including but not limited to environmental harm, seriousness/duration of the violation, willfulness, cooperation, ability to pay, and other factors). However, DEP indicates in the Draft EJ Policy that it will “enforce compliance to the greatest degree consistent with applicable law” for violations in EJ areas. Moreover, the updated Draft EJ Policy includes “deterrence of disproportionate negative impacts to human health and the environment in EJ areas” as a relevant factor for the assessment of civil penalties, and provides that DEP may add reasonable enhancements to civil penalties at its discretion. At this point, it is unclear how DEP would intend to apply these special EJ-area civil penalty criteria in addition to the standards set forth in its existing civil penalty guidance documents or what legal authority DEP will be using to do so. Further, as an alternative to civil penalties, the Draft EJ Policy indicates that DEP will consider payment to community-based mitigation projects in EJ areas through prioritization of DEP’s Policy for the Consideration of Community Environmental Projects in Conjunction with Assessment of Civil Penalty.⁷

DEP is holding virtual public hearings on the updated Draft EJ Policy on 5 April at 5:00pm, 12 April at 6:00pm, and 28 April at 12:00pm, and will be accepting written comments until 11 May 2022. Information on how to access these virtual meetings and public comment can be found on DEP’s website.⁸ Members of the regulated community should take advantage of these opportunities before DEP finalizes the Draft EJ Policy, and begin to consider how the proposed changes would impact their existing operations and future developments in EJ areas.