Environmental Justice: Fair Treatment, Meaningful Involvement, and Impacts on Air Quality Permitting

Environmental Justice (EJ) is cited as a top priority of the current U.S. EPA administration.  U.S. EPA defines EJ as “the fair treatment and meaningful involvement of all regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”  Put more simply, EJ is a U.S. EPA program designed to make sure that minority and/or low income individuals are not excluded from the environmental regulatory process because they are not in a position to influence the process as a result of their ethnicity or income.

The stated goals of U.S. EPA’s EJ program are broad and difficult to tie directly to the process of obtaining air quality construction permits.  Accordingly, EJ policies have not often been required to be addressed during the air quality permitting process, but are sometimes raised in the context of the air quality requirements to ensure adequate public notice and comment.  Only projects located directly adjacent to an “EJ area” (i.e., a census tract with greater than 30% of the population representing minority and/or low income individuals) and in states that enforce their own EJ policies would trigger an EJ evaluation concurrent with preparing an air quality construction permit application.  The U.S. EPA Environmental Appeals Board (EAB) has addressed EJ issues in connection with PSD permit appeals on several occasions. In one of these actions, EAB actually remanded a PSD permit to the delegated permitting authority for failure to provide an EJ analysis in the administrative record in response to public comments raising the issue.

The impact of the EJ policy on air quality permitting projects is likely to increase commensurate with U.S. EPA’s recent emphasis on EJ as a top priority.  This article examines the EJ policy currently in place and administered by the Pennsylvania Department of Environmental Protection (PADEP).  PADEP’s EJ policy is highlighted because of its prescriptive process for (1) defining which air quality projects should address EJ issues and (2) the requirements that need to be addressed to satisfy the goals of the EJ program.  Pennsylvania’s EJ process can be a critical driver in the overall schedule for permitting a project.  Additionally, the mechanism that is used to determine which projects trigger EJ requirements in Pennsylvania will likely result in more frequent EJ-affected projects due to new, more stringent National Ambient Air Quality Standards (NAAQS).  PADEP’s policy is significant as it is a harbinger of similar state programs that are likely to be installed as U.S. EPA places a greater emphasis on the EJ program.

 When Do EJ Requirements Apply to an Air Permitting Project?

In addition to hosting public meetings to discuss the EJ program, U.S. EPA has published a guidance document tool to assist states in identifying and defining EJ projects. In the EJ guidance document, U.S. EPA defines three (3) general criteria for determining if a project will result in an “EJ concern,” namely if the project:

• Creates new disproportionate impacts on minority, low income, or indigenous populations.
• Exacerbates existing disproportionate impacts on minority, low income, or indigenous populations.
• Presents opportunities to address existing disproportionate impacts on minority, low income, or indigenous populations that are addressable through the action under development.

These criteria are nebulous and difficult to assess when being applied to real-world air quality permitting situations.  PADEP has attempted to remove some of the complexity of deciding which projects trigger EJ requirements by linking EJ requirements directly to a project’s impacts relative to ambient pollutant concentration thresholds.  Specifically, a project in Pennsylvania is required to address EJ requirements if it meets the following criteria:

• Triggers major New Source Review (NSR) air quality permitting requirements and is located immediately adjacent to an EJ area; AND/OR
• Triggers Prevention of Significant Deterioration (PSD) air quality permitting requirements and results in an exceedance of the ambient significant impact levels (SILs) for each PSD triggering pollutant.

Evaluating the SILs is done through air dispersion modeling that is required as part of the PSD permitting program.  The emissions increases associated with the proposed project are modeled, and the predicted ambient pollutant concentrations are compared to the SILs. SILs are screening ambient pollutant concentration thresholds that are a fraction of the National Ambient Air Quality Standards (NAAQS).  If the predicted ambient pollutant impacts are greater than the SILs within any nearby EJ area, then the requirements of PADEP’s EJ policy apply to that project.  Since the SILs associated with the recently promulgated nitrogen dioxide (NO2) and sulfur dioxide (SO2) NAAQS are extremely stringent, it is not uncommon for the SIL levels to be exceeded at distances of 5 kilometers or greater from the proposed project.  The extent of SIL exceedances in Pennsylvania based on the new NAAQS levels coupled with the prevalence of EJ areas will result in projects triggering EJ requirements locales where EJ would not have previously been a concern. Similar policies implemented in other states under the recent EJ push by U.S. EPA will result in similar far reaching impacts of EJ requirements on major permitting projects.

What Are the Requirements of an EJ Project?

PADEP policy prescribes that a public participation strategy should be developed for the EJ area that is being impacted by the project (i.e., an area where there is an exceedance of one of more SILs).  As part of the EJ policy requirements, a public “Information” meeting must be scheduled within 30 days of submittal of an air quality construction permit application.  While PADEP is responsible for many of the specific EJ policy requirements, the following steps often become the burden of the facility to ensure that the permitting process is completed in an efficient manner:

1. Develop a written discussion with air quality impact maps to describe the specific modeled ambient impact that is projected to affect the EJ area as a result of the proposed project.

2. Meet with PADEP air quality staff and the applicable PADEP Regional Office EJ Coordinator to discuss what is necessary to meet the requirements of PADEP’s EJ policy for the construction permit application.

3. Identify community leaders for the impacted EJ area and schedule pre-application meetings with these leaders to discuss the proposed project.

4. Develop a public notice, with input from PADEP, that explains the proposed project in a manner that can be understood by the general public including the use of community appropriate languages in addition to English.  With this notice, provide for a public “Information” meeting to be scheduled within 30 days after submittal of the notice .  The “Information” meeting must include participation by the applicant, PADEP, community officials responsible for the affected EJ area, and the general public.  This notice should be distributed in a manner that will reach the majority of the EJ community including through local newspapers and newsletters, community organizations, or local radio and television, as appropriate.

5. Develop information on the proposed project to be distributed to the EJ community and provide easy EJ community access to the air quality construction permit application documents (e.g., copies at such locations as a local library or local government offices).

6. Hold the scheduled “Information” meeting with the EJ community to discuss the proposed project and the modeled ambient air quality impact in the area, and to take public comments.  This meeting is to be held at a location within the EJ community and at hours that would encourage the maximum participation of the general community members.

7. Prepare a “Comment Response Document” that addresses any comments received from the public or from PADEP relative to EJ issues.  Submit this Comment Response Document to PADEP as a formal revision to the submitted construction permit application.

Summary and Recommendations

As described in the previous section, addressing EJ requirements could require extensive time and effort associated with communicating the project to the EJ community and responding to any comments that are received.  Given U.S. EPA’s new emphasis on EJ requirements, the possibility exists that EJ requirements could be applied to projects that are considered minor and do not trigger major NSR permitting requirements, depending on their location relative to EJ areas.  During your preliminary planning for a proposed project, be prepared to consider the potential for EJ requirements, and what they would mean for the timing of the project and the expense associated with preparing the application.  The time spent for meeting with community leaders, outreach (i.e., advertising), conducting a public meeting, and preparing a detailed Comment Response Document can be extensive and can add months to the permit preparation process.