On March 11, 2022, the Pennsylvania Department of Environmental Protection (DEP) released for public comment an updated Draft Environmental Justice Policy (Draft EJ Policy), which would significantly expand the scope of the Environmental Justice Initiatives of the DEP with regards to permitting, enforcement, climate change, subsidies and oil and gas development. The draft EJ policy, which has been in the works for several years, reflects Governor Wolf’s emphasis on environmental justice (EJ), which he defines as “[t]The equitable treatment and meaningful participation of all people, regardless of race, color, national origin, or income, in the development, implementation, and enforcement of environmental laws, regulations, and policies of the Commonwealth.1
Ultimately, the DEP can only act within the limits of its statutory authority, and the Draft EJ Policy is a guidance document, not a law or regulation. However, the draft EJ Policy reflects the 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 enhanced enforcement of the DEP in EJ areas, and consider submitting comments on the draft EJ Policy before the end of the public comment period on May 11.
THE 2004 ENVIRONMENTAL JUSTICE PUBLIC PARTICIPATION POLICY
In 2004, the DEP released its first Public Participation Policy on Environmental Justice (2004 Policy).2 The 2004 policy will remain in effect until the draft CY policy is finalized and adopted. The 2004 policy requires permit applicants to meet increased public participation requirements for certain permits in EJ areas, which the DEP defines as any census tract with 30% or more minority population or 20% or more population at or below the poverty line. Permit applicants and permit holders can determine if they are operating in such an area using the DEP’s EJ Viewer map.3
Under the 2004 policy, DEP strongly advises applicants applying for certain individual permits – known as “trigger permits” – to meet with community stakeholders, provide community members with clear information about proposed projects, and hold meetings. public information meetings. These trigger permits include, for example, sewage discharge permits of at least 50,000 gallons per day, major source air permits, mining permits, and permits for treatment/disposal facilities. garbage. Additionally, the DEP may apply the 2004 policy to “opt-in permits” that are not permit types on the trigger permit list if the DEP identifies community concerns, current or anticipated environmental impacts, or reasonably anticipated significant adverse cumulative impacts of the proposed action. DEP’s Office of Environmental Justice facilitates coordination between DEP, EJ communities and permit applicants.4
In 2018, DEP released a revised draft EJ policy that included minor changes to the 2004 policy. It withdrew that draft policy in 2020 to develop a more comprehensive policy, which it released on March 11. 2022.
THE DRAFT POLICY I
DEP’s draft CY policy includes significant revisions and additions to the 2004 policy that fall into three categories: (1) expanding on the existing 2004 CY policy; (2) create new rules of public engagement for oil and gas projects; and (3) strengthen law enforcement in EJ areas.5
Extension of the existing EJ policy
The updated draft CY Policy includes the following changes to existing elements of the 2004 policy:
Updates the definition of “Environmental Justice Zone” 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 indicates that the DEP will provide methods for identifying EJ areas in a separate supplement and may be updated” using the most recent data available”.
Lists types of facilities, whose permits may warrant treatment as an “opt-in permit,” to guide the 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.
Describes opportunities for community members to comment on a permit application before, during, and after permit review. Within this updated framework, the DEP should help community members understand proposed permits and work with Community Liaison Officers to keep communities informed of the status of a permit. This section includes a reference to the Environmental Complaint Form for formal complaints regarding the operation of licensed facilities. This section does not impose any additional requirements on permit applicants.
Expands EJ policy to include DEP climate initiatives, brownfield redevelopment, and grantmaking, to ensure 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 an EJ strategic plan. It also requires the DEP Secretary to review the Environmental Justice Policy every four years.
Public engagement in the oil and gas sector
Significantly, the draft EJ policy adds a new section requiring unconventional oil and gas operators to comply with the new “public engagement” requirements. According to the Office of Environmental Justice website, this was a need identified by community members.6 The public engagement process in the oil and gas sector differs from the other requirements of the draft EJ policy because it applies to ongoing licensed oil and gas operations, unlike the rest of the 2004 updated policy, which largely limited to new license applications or violations.
The Oil and Gas Public Engagement Process recommends that DEP’s Oil and Gas Program identify, on an annual basis, operators of unconventional oil and gas wells in EJ areas and ask each operator to these 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 asks the DEP to develop a webinar outlining the oil and gas permitting process.
Increased enforcement in EJ areas
Finally, Section V of the draft EJ Policy addresses inspections, compliance and enforcement in EJ areas. According to the draft EJ policy, the DEP will prioritize inspections and compliance in EJ areas, as well as other “areas where environmental and public health conditions require 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, the DEP will develop and report on methods for prioritizing compliance and enforcement.
When evaluating civil penalties, the DEP must act within legal limits, and in determining the amount of penalties, the 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 damage, severity/duration of breach, willingness, cooperation, ability to pay and other factors). However, the DEP states in the draft EJ Policy that it “will enforce compliance to the greatest extent consistent with applicable law” for violations in EJ areas. Additionally, the updated draft EJ Policy includes “the deterrence of disproportionate adverse impacts on human health and the environment in EJ Areas” as a relevant factor in assessing civil penalties, and provides that the DEP may add reasonable enhancements to civil penalties at its discretion. At this point, it is unclear how the DEP would intend to apply these special civil penalty criteria in the EJ Area in addition to the standards set forth in its existing civil penalty guidance documents or what legal authority the DEP will use to do so. Additionally, as an alternative to civil penalties, the draft EJ policy indicates that the DEP will consider payment to community-based mitigation projects in EJ areas by prioritizing the DEP’s policy for reviewing community-based environmental projects in conjunction with assessment of civil penalties.7
The DEP is holding virtual public hearings on the updated draft CY Policy on April 5 at 5:00 p.m., April 12 at 6:00 p.m., and April 28 at 12:00 p.m., and will accept written comments until May 11, 2022. Information on how Access to these virtual meetings and public comments can be found on the DEP website.8 Members of the regulated community should take advantage of these opportunities before the DEP finalizes the draft EJ Policy and begin to consider the impact of the proposed changes on their existing operations and future developments in EJ areas.
2 Public Participation in Environmental Justice Policy of 2004
3 EJ Viewer
4 Office of Environmental Justice
5 Draft CY Policy
7 Community Environmental Project Review Policy in Conjunction with Civil Penalty Assessment