Environmental Justice Concerns in Air Permitting

The U.S. Environmental Protection Agency (U.S. EPA) Office of Air and Radiation identified eight principles addressing environmental justice in Clean Air Act (CAA) permitting decisions in a December 22, 2022 Memorandum authored by Principal Deputy Assistant Administrator Joseph Goffman. U.S. EPA’s stated purpose for promulgating these eight principles is to improve and practice meaningful stakeholder involvement and fair treatment at all stages of the permitting process, as well as increase transparency in the permitting process. Summarized below are the eight principles to promote use of best practices, address local environmental justice concerns, and engage with affected groups throughout the air permitting process for permitting actions that may result in disproportionately high and adverse human health or environmental effects on a community.

1. Identify communities with potential environmental justice concerns: In order to promote fair treatment and meaningful involvement of affected communities when taking air permitting actions, consider using EJScreen or other suitable geographic information systems to identify communities with potential environmental justice concerns. The use of screening tools will help identify if affected communities are already affected by other pollution sources and may be vulnerable based on age, unemployment, or linguistic isolation.

2. Engage early in the permitting process to promote meaningful participation and fair treatment: Permitting actions with potential environmental justice concerns should be identified by permitting authorities before the permit application is submitted. It is encouraged that air permit applicants collaborate with the permitting authority to identify resources that facilitate understanding of potential effects of a permitting action on the affected community for meaningful participation and fair treatment before, during, and after the air permitting process. Early engagement is recommended to identify siting alternatives, if appropriate, or mitigation measures the applicant can take to address potential adverse and disproportionate effects of the permitting action.

3. Enhance public involvement throughout the permitting process: It is important for the permitting authority and the permit applicant to provide the affected community meaningful input on significant permitting actions. Recommended enhancements include training the public on how to effectively comment on permits; make all relevant permitting documents publicly available; communicate the action through mail, social media, and going door-to-door; holding formal and informal public hearings/meetings; providing translation and interpretive services; and providing easily understandable support documents.

4. Conduct a “fit for purpose” environmental justice analysis: Permitting authorities are encouraged to conduct an environmental justice analysis of appropriate scope to inform the permitting decision. The primary policy objective is to address the principle of fair treatment by further evaluating adverse and disproportionate impacts and how to prevent or mitigate those impacts. The secondary policy objective is to address the principle of meaningful involvement by fostering enhanced community engagement in permitting decisions. It is recommended that the results of the analysis are included in the administrative record and the permit shows how it may affect a community. It might be necessary for the permitting authority to conduct an analysis of disparate impacts under federal non-discrimination laws.

5. Minimize and mitigate disproportionately high and adverse effects with the permit action to promote fair treatment: Fair treatment can be promoted by examining relevant statutory and regulatory authorities (including discretionary authorities) to develop permit terms and conditions that address or mitigate identified air quality impacts. U.S. EPA may submit formal comments to identify available discretion under federal, state, or local authorities that may be applied to mitigate or address the effects of an air permitting action on the community.

6. Provide federal support throughout the air permitting process: S. EPA will be available to collaborate with the permitting authority to provide technical support, guidance, and recommendations to address the cumulative effects of a permitting action on the community.

7. Enhance transparency throughout the air permitting process: The administrative record for the permitting action should be readily available in a format and location that is easily accessible to the affected community to provide transparency in decision making throughout the air permitting process. Community concerns and addressing/responding to community concerns should be clearly documented in the administrative record. The permitting authority and applicant can consider ways to make compliance monitoring, test results, records, and reports required by the permit publicly available to the community in an understandable and readily accessible manner.

8. Build capacity to enhance the consideration of environmental justice in the air permitting process: S. EPA recognizes the importance of building the collective capacity of federal, state, tribal, and local co-regulators to promote the fair treatment and meaningful involvement of communities with environmental justice concerns in the air permitting process. U.S. EPA supports peer learning between regulatory partners, stakeholders, and affected communities to identify best practices on how to address environmental justice concerns and expand the positive impact in environmentally overburdened communities.

Regulated stationary sources should thoughtfully consider these principles when planning a significant permitting action and act in a proactive manner to address them. U.S. EPA plans further refinement of these principles in the months ahead and setup a mailbox at ejinairpermitting@epa.gov for its implementation partners (state, tribal, and local air agencies) to provide feedback. It is reasonable to expect that implementation of these principles will vary across jurisdictions and applicants should partner with the permitting agency to best understand implementation practices well before submitting an air permit application. If you need help or want to know about how this might impact your facility contact me at vspring@all4inc.com or your ALL4 project manager.