Equity in Virginia Permitting: A Focus on Environmental Justice

The Commonwealth of Virginia (VA or Commonwealth) enacted the Virginia Environmental Justice (EJ) Act (Act) in 2020, making a VA policy to, “… promote environmental justice and ensure that it is carried out throughout the Commonwealth, with a focus on environmental justice and fence line communities.” Later in April 2021, VA Department of Environmental Quality (DEQ) established the Office of Environmental Justice (OEJ).

VA DEQ released a draft document titled “Guidance Memo No. 23-XXXX – Environmental Justice in the Permitting Process” (Guidance Memo) for informal comment period, which ended May 1, 2023. The Guidance Memo outlines how VA DEQ will ensure meaningful involvement and fair treatment in environmental permitting, considering the challenges posed by the Act’s requirements and the identification of a large portion of the Commonwealth as EJ Communities. The Guidance Memo aims to enhance transparency, economic development, and environmental protection, and it should be integrated into ongoing efforts to facilitate permit tracking and access to information for permit applicants, the public, and stakeholders.

Environmental Justice Communities in Virginia

All permit actions, including general permits and permits by rule, will be assessed to determine if they are situated within an EJ Community, and this information will be recorded in the VA DEQ database for tracking compliance and inventory purposes. Virginia EJ Communities are mapped (available online here) as census block groups (CBGs) where either 30% or more of the people have a low annual household income (based on the local area’s median income), where the population of people of color is higher than in the whole region, or where the community has special historical or cultural significance. In total, 53% of the total geographic area of Virginia, containing 59% of the population of the state is identified as in EJ communities.

Permits of Concern

The first step in determining if a permitting action is a “permit of concern” is evaluating if the proposed action is located within an EJ Community. Due to the extensive coverage of EJ Communities across the Commonwealth and the high volume of permit actions processed annually, if a proposed action is not located in an EJ Community, the information will be recorded, and no further evaluation will be conducted.

If the proposed action is in an EJ Community, permits of concern for air, water, and land are then identified based on the following criteria:

1. Air Permits of Concern: Construction of a new major source or major modification to an existing major source or to existing types of fossil fuel-fired facilities.
2. Water Permits of Concern: New or increased water withdrawals from the ground or surface, or affecting Virginia Water Protection wetlands; new or increased major municipal or expanded industrial discharges.
3. Land Permits of Concern: New or expanded solid waste landfills, hazardous waste facilities, or materials recovery/transfer facilities.

If a community is concerned about a proposed action that is not identified as a permit of concern by the above criteria, VA DEQ will consider meaningful involvement and fair treatment on a case-by-case basis.

Permits of concern in EJ Communities will undergo additional evaluations to better assess the impact of the proposed action on the already disproportionately affected communities. For air permits of concern, air modelling will be conducted to ensure compliance with the National Ambient Air Quality Standards (NAAQS). The Guidance Memo sets up Impact Thresholds for criteria pollutants and standards for disproportionate share of any negative environmental consequences.

For water permits of concern, a water quality statewide impairment evaluation was conducted. The DEQ Water Quality Assessment program identified the number of impaired waterbodies in every National Hydrography Dataset Hydrologic Unit Code 12 (NHD HUC12). The statewide evaluation intersected the number of impairments in watersheds to EJ Communities determined by the CBG and compared this number to non-EJ Community CBGs. A map of this intersection analysis is located online here. The results of this analysis showed that EJ Community CBGs fall within watersheds with five or more impairments compared to approximately 3.8 impairments for non-EJ Community CBGs.

For land permits of concern, an intersection analysis for EJ Community CBGs located within a 5-mile radius of active Municipal Solid Waste Permits and of active coal combustion residual (CCR) Solid Waste Permits was performed. The results showed a higher proportion of these permits in EJ Community CBGs, confirming that the EJ Communities in these locations may experience a potential disproportionate share of negative environmental consequences.

These evaluations allow VA DEQ to identify areas with a potential disproportionate share of any negative environmental consequence. Due to this, for any proposed permit of concern located in these defined areas, VA DEQ will address equitable consideration, which is consideration based on a moral, not legal, obligation.

Defining Meaningful Involvement and Fair Treatment

Meaningful involvement, in the context of the Guidance Memo, refers to providing opportunities for marginalized community residents to participate and have their concerns and perspectives considered in the decision-making process for practices that may affect their health and wellbeing.

OEJ Coordinators, in collaboration with VA DEQ regional and division directors, program managers, permit staff, and the Communications Office, will engage with community contacts to assess their interest and concerns regarding proposed permits of concern. Within the Guidance Memo is a process toolkit OEJ Coordinators will follow to achieve meaningful involvement. The toolkit shows the outreach opportunities OEJ Coordinators will make for each step in the permitting process. Outreach will be done through networking, informational meetings, social media, and ongoing communication with community contacts.

Fair treatment, in the context of the Guidance Memo, refers to equitable consideration so that no group suffers more from harmful environmental effects caused by industries, government actions, or businesses. VA DEQ will address fair treatment within its authority for any proposed permit of concern located in an EJ Community with a potential disproportionate share of negative environmental consequences. The goal is to actively engage with permit applicants, encouraging them to take additional measures and involve the community to minimize or mitigate potential impacts.

VA DEQ will document their engagement with applicants, the evaluation of potential disproportionate impacts, and meaningful involvement efforts in the permit record.

Additional information can be found at VADEQ’s Environmental Justice program on their website at  http://.deq.virginia.gov/our-programs/environmental-justice. If you would like to discuss the implications of Virginia’s Guidance Memo, please contact Abigail Frank at afrank@all4inc.com or (771) 208-2665.