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
DEP can only act within its statutorily authorized authority. The Draft EJ Policy, however, is a guidance document and not a law. 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 communities should prepare for increased public participation, heightened enforcement by DEP in EJ regions, and consider submitting comments to the draft EJ Policy before 11 May’s close.
The 2004 Environmental Justice Public Participation Policy
DEP’s first Environmental Justice Public Participation Policy was released in 2004 (Policy 2004).2The 2004 Policy will continue to be in effect until the Draft EJ Policy has been finalized and adopted. The 2004 Policy requires permit applicants follow heightened public participation requirements in certain EJ areas. This is defined by DEP as any census tract with a 30% or greater minority population, or a population at or below 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 permits can include wastewater discharge permits above 50,000 gallons per hour, major source air permits and mining permits, as well as permits for waste treatment/disposal plants. 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
DEP published a draft revision of the EJ policy in 2018, which included minor changes to the 2004 Policy. This draft policy was withdrawn by DEP in 2020 to make way for a more comprehensive policy. It was 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
1. Expanding upon existing EJ Policies
The revised Draft EJ Policy contains the following modifications to 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 can include, for instance, major sources or air pollution, resource recovery facility or incinerators, as well as transfer stations.
- It outlines opportunities for community members who wish to comment on permit applications before, during, after permit review. This updated framework requires that DEP assist community members in understanding proposed permits and work with community liaisons so that communities are kept informed about the status. This section refers to the Environmental Complaint Form, which can be used to file formal complaints about the operation of permitted facilities. This section does NOT impose additional requirements upon 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.
- It establishes the Office of Environmental Justice’s role and responsibilities, and requires that the office create an annual EJ Report. It also requires that the DEP Secretary reviews the Environmental Justice Policy at least every four years.
2. 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.6The Oil and Gas Public Engagement process is different from other requirements in Draft EJ Policy because it applies only to ongoing permitted oil and gaz operations. This is in contrast to the rest of the updated 2004 Policy which is largely restricted to new permit applications and 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. These operators would be invited to attend community meetings by the Oil and Gas program. Finally, the Oil and Gas Public Engagement Section instructs DEP that a webinar be created outlining the oil and natural gas permit process.
3. Increased enforcement in EJ areas
Section V of the Draft EJ Policy focuses on 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. DEP will also develop and report methods to prioritize compliance and enforcement.
DEP must comply with statutory limits when assessing civil penalties. In determining penalty amounts, DEP is usually guided by statutory provisions as well as program-specific civil penalty guidance documents. These documents require consideration of many factors, including but not limited to environmental damage, severity/duration, willfulness, cooperation and ability to pay. 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. It is not clear at this time how DEP intends to apply these EJ-area civil penalty standards in addition to those set forth in its existing civil penalties guidance documents. Also, what legal authority DEP will use 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 will hold virtual public hearings about the updated Draft EJ Policy at 5:00pm, 6:00pm and 12:00pm on April 5, 12, April and 28 April. Written comments will be accepted until May 2022. Information on how to access these virtual meetings and public comment can be found on DEP’s website.8These opportunities should be taken advantage of by members of the regulated community before DEP finalizes its Draft EJ Policy. Then, begin to think about how the proposed changes will impact their current operations and future developments in EJ area.
1https://www.governor.pa.gov/wp-content/uploads/2021/10/20211028_EO_2021-07_Final_Executed.pdf
22004 Environmental Justice Public Participation Policy
4Office of Environmental Justice
6 https://www.dep.pa.gov/PublicParticipation/OfficeofEnvironmentalJustice/Pages/Policy-Revision.aspx
7Policy for the Assessment of Civil Penalty in Conjunction to Community Environmental Projects
8 https://www.dep.pa.gov/PublicParticipation/OfficeofEnvironmentalJustice/Pages/Policy-Revision.aspx
