PA Dept. Environmental Protection Updates Justice Policy

The Pennsylvania Department of Environmental Protection (DEP), published a draft updated Environmental Justice Policy (Draft EJ Policy), for public comment, on March 11, 2022. This would significantly expand DEPs EJ initiatives regarding permitting, enforcement, climate changes, grant funding, oil and gas development, and permits. The Draft EJ Policy has been in development for many years and reflects Governor Wolf’s focus on environmental justice (EJ), as he defines it. [t]The fair treatment and meaningful participation of all people, regardless of race, color, income, in the development, implementation, enforcement, and enforcement of environmental laws and regulations by the Commonwealth.¹

The DEP cannot act beyond its statutorily granted authority. The Draft EJ Policy is not a law nor regulation, but a guidance document. The Draft EJ Policy is a reflection of DEPs desire for existing laws to protect low- and minority-income communities from adverse environmental impacts. As such, the regulated communities should prepare for increased public participation as well as heightened enforcement by DEP in EJ regions. Also, consider submitting comments to the draft EJ Policy before 11 May’s end.

THE 2004 ENVIRONMENTAL JUSTICE POLICY PUBLIC PARTICIPATION POLICY

2004 was the year that DEP published its first Environmental Justice Public Participation Policy (2004 Policy).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 permits in EJ zones. This is defined by DEP as any census tract with a 30% or greater minority population, or a population at or below poverty level of 20%. Use DEPs EJViewer map to determine if you operate in an EJ area.³

The 2004 Policy states that DEP strongly encourages applicants seeking certain permits (called trigger permits) to meet with community stakeholders and provide clear information to them about their proposed projects. These permit types include wastewater discharge permits at or over 50,000 gallons/day, major source air permits (mining permits), permits for waste treatment/disposal facility permits, and permits for wastewater treatment/disposal. If DEP has identified community concerns, anticipated or actual environmental impacts or reasonably anticipated adverse cumulative effects from the proposed action, DEP may apply the 2004 Policy for opt-in permits. The DEP’s Office of Environmental Justice facilitates coordination among 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. In 2020, it withdrew the draft policy to create a more comprehensive policy. The policy was released on March 11, 2022.

THE DRAFT EJ POLICY

DEPs Draft EJ Policy for 2004 includes significant revisions to and additions that extend the 2004 Policy. These include (1) an expansion of the existing 2004 EJ Policy, (2) new rules for public engagement for oil and gas projects, and (3) increased enforcement in EJ area.⁵

Expanding upon existing EJ Policies

The following modifications have been made to the 2004 policy’s Draft EJ Policy:

Updates the definitions of Environmental Justice Area and the geographic location where DEPs EJ Policy is applicable. The current thresholds for low income and minority percentages are still in effect, but the Draft EJ Policy states that DEP will provide methods to identify EJ Areas in a separate Supplement. This supplement can be updated with the most recent data.
The following list contains information about the types of facilities that could be considered for Opt In Permits. This is to help DEP apply the EJ Policy in 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 provides opportunities for community members, both before, during, as well as 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 also refers to the Environmental Complaint Form which is used to make formal complaints about the operation and maintenance of permitted facilities. This section does not impose additional requirements on permit applicants.
Expands the EJ Policy in order to include DEPs climate initiative, brownfields rehabilitation, and grant making. This will ensure that DEP actions go beyond permits decisions to account for disproportionate impacts.
The Office of Environmental Justice is required to establish the roles and responsibilities of the Office. This requires the office to prepare an annual EJ Report as well as an EJ Strategic Plan. It also requires that the DEP Secretary reviews the Environmental Justice Policy at least every four years.

Oil and Gas Public Engagement

The Draft EJ Policy includes a new section that requires unconventional oil and gas operators comply with new public involvement requirements. This was a community need, according to the Office of Environmental Justices site.⁶The Oil and Gas Public Engagement process is distinct from other requirements of the Draft EJ Policy. It applies to ongoing allowed oil and gas operations, unlike most of the updated 2004 Policy, which is limited to new permits or violations.

The Oil and Gas Public Engagement process recommends the DEPs Oil and Gas program identify on an annual basis unconventional oil and gas well operator within EJ areas and request that each operator provide a clear overview of their projects. 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.

Enforcement in EJ areas increased

Section V of this Draft EJ Policy addresses inspections, compliance, enforcement and enforcement in EJ area. The Draft EJ Policy states that DEP will prioritize inspections in EJ areas and ensure compliance in all other areas. DEP will also prioritize compliance and inspections based on facility type, compliance record, and other factors in order to minimize violations within EJ Areas. DEP will also develop and report methods to prioritize compliance and enforcement.

DEP must assess civil penalties within the statutory limits. DEP is often guided by program-specific guidance documents and statutory provisions when determining penalty amounts. This guideline includes consideration of several factors (including, but not only, environmental harm, severity/duration of violation, willfulness and cooperation, ability and willingness to pay, and other factors). The Draft EJ Policy states that DEP will enforce compliance to the maximum extent permitted by law in EJ areas. The updated Draft EJ Policy also includes deterrence for disproportionately negative impacts to human health or the environment in EJ area as a relevant factor in the assessment of civil penalties. It also allows DEP to add reasonable enhancements of civil penalties at its own discretion. It is unclear at this stage how DEP would apply these EJ-area special civil penalty criteria, in addition to the standards established in its existing civil penalties guidance documents. Or what legal authority DEP might use to do so. The Draft EJ Policy also indicates that DEP will consider paying community-based mitigation projects in EJ regions as an alternative to civil sanctions. This is done by prioritizing DEPs Policy to the Consideration of Community Environmental Projects with Assessment of Civil Penalty.⁷

DEP will hold virtual public hearings about the updated Draft EJ Policy at 5:00pm, 6:00pm and 28 April at 12:01pm. Written comments will be accepted until 11 May 2022. You can find information on how to access these virtual meetings as well as public comment on the DEPs website.⁸Members of the regulated communities should take advantage of these opportunities, before DEP finalizes their Draft EJ Policy. They should also begin to consider how the proposed changes might impact their operations and future developments within EJ areas.