March 15, 2022
Zachary J. Koslap and Carol F. McCabe
MGKF Special Alert
On March 12, 2022, the Pennsylvania Department of Environmental Protection (PADEP) published in draft its proposed Environmental Justice Policy (Policy) for comment. As drafted, the Policy clarifies the role of the PADEP’s Office of Environmental Justice (OEJ), the PADEP’s priorities for inspections, compliance and enforcement in Environmental Justice areas (EJ Areas), and principles for community development and investment. Most importantly, the Policy sets new procedures for permit applications subject to the Policy. The release of the draft Policy follows a lengthy stakeholder process dating back to October 2020, when the PADEP renewed its efforts to develop a draft environmental justice policy that would integrate environmental justice into a range of PADEP functions in addition to its permitting processes. The recent release of the draft Policy tracks closely with a working draft presented to the Environmental Justice Advisory Board in August 2021.
For owners and operators of industrial facilities, the most immediate impacts from the Policy, once finalized, will be the imposition of additional public participation and outreach requirements for certain permit applications. Although the Policy clearly applies to projects located in EJ Areas seeking certain “Trigger Permits,” the Policy also gives the PADEP broad discretion to apply the Policy beyond EJ Areas to “Opt-In Permits,” where community concerns or environmental impacts warrant special consideration. The Policy also establishes additional public participation requirements for certain oil and gas activities, requiring community meetings with local government officials and community stakeholders to review a well operator’s planned activities for the year. Notably, the Policy does not expressly suggest that the PADEP’s existing statutory and regulatory authority is expanded, or that it may deny permits or impose permit conditions based solely on environmental justice considerations. However, the potential scope of the PADEP’s actions under Policy may be better understood once the Policy is made final and is subject to implementation.
Scope of the Policy
The Policy applies to certain permit applications for projects with an “Area of Concern” that fall within an EJ Area. The Policy does not define EJ Area, but instead points to a separate document supplementing the Policy that has not yet been issued. However, the Policy provides clarity on what it considers to be the Area of Concern for a proposed project, which is 0.5 miles in all directions from the location of the proposed permit activity with potential impact to the environment or community. Thus, in determining whether a proposed project will impact an EJ Area, applicants must consider all areas 0.5 miles outward of its proposed permitted activities. Applicants can use the PADEP’s mapping tool for this purpose.
The Policy provides a list of Trigger Permits which includes individual applications meeting certain threshold criteria for air, water, waste, mining, land application of biosolids and Concentrated Animal Feed Operations permits. The Policy also gives the PADEP discretion to consider permits not on the Permit Trigger list as Opt-in Permits subject to the Policy if they warrant special consideration and are among certain identified facility types (such as major sources of air pollution, solid waste facilities, landfills, transfer stations, and scrap metal facilities). Additionally, any permit not specified in the Policy as either a Trigger Permit or determined to be an Opt-in Permit, including general permits, renewals, or revisions, may be designated as Opt-in Permits if the PADEP believes they warrant special consideration, even if the Area of Concern for a project is not located within an EJ Area. When making such a determination, the PADEP is to consider any identified community concerns, present or anticipated environmental impacts, and anticipated cumulative impacts to the extent they can be reasonably quantified. Thus, the Policy gives the PADEP broad discretion in determining which projects may be subject to the Policy.
Permit Application and Review Requirements
The Policy encourages applicants for Trigger Permits and potential Opt-In permits to schedule a pre-application conference with the PADEP and to meet with community stakeholders prior to submitting the application. Within 30 days of the PADEP determining that an application is subject to the Policy, the PADEP will develop a public participation strategy in coordination with the OEJ, community relations coordinators and local government liaisons. The public participation strategy is intended to facilitate the participation of residents within the EJ Area in the application process.
During the PADEP’s review of an application, the applicant must develop a project summary and then post it in high visibility areas within the EJ Area, including disseminating it electronically and placing it in publications widely read in the area. The Policy emphasizes that application materials should be made available to community members, and encourages the creation of supporting materials such as traffic analyses and cost/benefit analyses which otherwise would not be part of the permit application process. The PADEP also will schedule a public meeting within 30 days of accepting an application as administratively complete and technically adequate. The purpose of the meeting is to provide information to the community regarding the proposed application and to provide context for residents developing official comments. All application reviews under the Policy must include a 30-day comment period. In addition to these procedures, the Policy encourages enhanced public participation and access to information via translation of materials or interpretation services where appropriate, interaction with DEP staff, and digital access to information.
The PADEP must make a comment-response document publicly available when it makes a decision on the application, or sooner if feasible. The Policy encourages the PADEP to remain engaged with the community after the permitting decision, including keeping the community updated with respect to any changes made to the permit or any reports, findings, or enforcement actions regarding the project.
Separate Requirements for Oil and Gas Projects
The Policy maps out a separate public engagement process for unconventional oil and gas well projects. Unlike the requirements for projects discussed above, which are triggered through certain permit applications, the Policy requires annual public engagement regarding current or anticipated well operations. In particular, the PADEP is required to conduct annual assessments of all operators with anticipated or current well permit operations where the Area of Concern is in an EJ Area. Once identified, operators must develop an overview of projects that address the purpose and location of proposed activities, the timing of operations, and anticipated impacts. The PADEP also will convene local government officials, community stakeholders, and identified operators for a community meeting, where the operator’s planned activities for the year will be discussed.
Increased Compliance Enforcement Focus in EJ Areas
Pursuant to the Policy, the PADEP will prioritize inspections and compliance enforcement in EJ Areas. The Policy also encourages the PADEP to add enhancements to civil penalties associated with compliance violations in EJ Areas, noting that deterrence of impacts to human health and the environment in EJ Areas is considered a relevant factor by the PADEP in calculating civil penalty assessments.
Other Changes Enacted Under the Policy
The Policy outlines the role and responsibilities for the PADEP’s OEJ in coordinating and facilitating outreach between the PADEP, communities, and regulated entities. The Policy notes that OEJ has developed the EJ Viewer website to identify populations served by the Policy and will update or reassess maps at least every two years. The OEJ also will issue an annual report that details the progress of the Policy and federal, state, and local advancements in EJ policy. Additionally, the Policy includes certain climate-related initiatives that prioritize communities disproportionately impacted by climate change and acknowledges the PADEP’s support and prioritization of brownfield redevelopment in EJ Areas.
The PADEP will be holding three virtual public hearings in April to accept comments on the Policy and will be accepting written comments through May 11, 2022. If you have any questions about the Policy or the public comment period, please contact Zach Koslap or Carol McCabe at (484) 430-5700.