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Republicans, Shale Gas Industry Oppose House Bill Requiring The Evaluation Of Cumulative Impacts Of Some New Pollution Sources On Communities Already Burdened By Pollution

On June 5, the House Environmental Resources and Energy Committee held a hearing on House Bill 652 (Bullock-D- Philadelphia) requiring an evaluation of the cumulative impacts of certain electric generation, waste management, sewage treatment facilities and major sources of air pollution proposed in communities already burdened by pollution.

The Committee heard a variety of perspectives on the legislation, including from the prime sponsor of similar legislation in New Jersey, the Department of Environmental Protection, the Marcellus Shale Coalition representing the unconventional shale gas industry and Clean Water Action.

Rep. Bullock Prime Sponsor

“For too long, environmental racism has plagued burdened communities. Incinerators, landfills, sewage plants and the like are often built in low-income areas because the residents of these areas typically lack the clout necessary to influence decision-makers,” said prime sponsor Rep. Donna Bullock (D-Philadelphia). “As a result, the people in these communities are powerless to stop facilities that pollute the local environment, drive down property values, and even poison the citizens as chemicals seep into the water they drink and air they breathe.”

“To help address this issue, the legislation would require a more transparent and open process before certain facilities are built or expanded within areas defined as “burdened communities,” said Rep. Bullock. “Builders of these facilities seeking permits would first have to prepare an environmental impact statement that includes any potential negative impacts a facility may have on the surrounding area.

“After the completion of this process, the Pennsylvania Department of Environmental Protection would have the power to deny a permit application if it finds that the cumulative impacts of the facility on the community would be too great to justify its approval.”

“The constitutional right to a clean environment is guaranteed to all, not only to those with the funding to lobby government officials. This legislation would be another step towards upholding that right,” said Rep. Bullock.

Rep. Causer, Republican Chair

Rep. Martin Causer (R-Cameron), Minority Chair of the Committee, said, “We've all heard very clearly from Governor Shapiro and also from the acting DEP Secretary that a top priority for them is reforming our permitting process and with the focus on promoting business and industry in the state and getting people back to work.

“And it appears, from my perspective, this bill does just the opposite. I actually think that this bill discriminates against poor communities by putting additional hurdles in place for jobs and opportunity. So I think that it's very problematic.”

“What's apparent to me is that our permitting system in the Commonwealth is broken, and I think that Gov. Shapiro has recognized that, the acting Secretary of DEP has recognized that with his public comments. It seems like the strategy for some is delay, delay, delay so that projects just don't happen,” said Rep. Causer.

“And there are numerous examples of that. Look at the US Steel Project in Western Pennsylvania [the permit issue was with Allegheny County]. Thousands of jobs, gone.”

“Look at the power plant project in Renova in Clinton County, a project that was strongly supported by the community. It's an economically depressed area, neighboring to my district,” said Rep. Causer. “[It] would have created many, many jobs, and also the energy that would have been produced there. But that's gone now.”

[Note: The delays were caused by an appeal of a DEP air permit that set emission limits too high. Read more here. Read more here.]

“And then the numerous pipeline projects across the state, communities that need this energy source but yet do everything they can to stop the pipelines from going in.”

[Note: DEP has issued permits for every major natural gas pipeline it received, in spite of the industry having the worst environmental compliance record of any in the state. Read more here. The opposition to stop some pipeline projects came in the neighboring New Jersey and New York.]

“And there again, delay, delay, delay. So I firmly believe that this legislation may actually make things worse, and that's why I plan to oppose it,” said Rep. Causer.

Shale Gas Industry

Patrick Henderson, representing the Marcellus Shale Coalition and the shale gas industry in Pennsylvania, said, “We believe the threshold question to answer is whether the proposed activity or facility can be undertaken in a manner that is compliant with the law while ensuring our natural resources and public health are protected.

“State Agency review of permits should be robust and consider all relevant information to inform the decision making process, and the agency should strive to do so in a manner that includes consistent criteria and predictable timeframes.”

“To suggest, however, that a one-size-fits-all approach which assumes the process associated with each of these environmental laws is inadequate, as this bill does, is unnecessary and injects additional delays, confusion and unpredictability into permitting processes while providing little if any tangible environmental benefit,” said Henderson.

Henderson said the bill as drafted has several issues--

-- Designation By Income: Using income as a measure of a burdened community, one-third of the U.S. Census tracts in the state would be included in the definition.

-- Difficult To Prepare Impacts Assessment: Preparing a Cumulative Impacts Assessment “is simply unrealistic as it requires the applicant to have knowledge of information which it could not reasonably possess.” He cited as an example public health and environmental risks from any pollution emitted or released routinely or accidentally be assessed based on past, present and reasonably foreseeable emissions and discharges.

-- Community Representative: There is no mechanism for agreeing on one representative of the community-- a person or organization-- if there is more than one municipality involved. He said the bill-- “could potentially promote a cottage industry where well-funded, well-connected, non-governmental organizations work to become the designated representative from multiple communities across the Commonwealth and utilize that position to oppose or dissuade the permitting of essential facilities that otherwise would meet statutory requirements to be permitted, even in cases where the community at large may support the project.”

“Gov. Shapiro and acting Secretary of DEP Negrin have laid out aggressive proposals to revamp the way permitting is undertaken in Pennsylvania,” said Henderson. “We are optimistic about the stated goals of both the Governor and Secretary, and look forward to the forthcoming details and how they will implement these initiatives.

“It seems clear that both the Governor and Secretary are looking to increase the efficiencies of Pennsylvania's permitting system and introduce increased accountability and predictability to this process.

“We share their belief that these improvements can be made, while continuing to safeguard our environment, public health and the communities in which we live.”

[Note: Not mentioned is the fact that 40 percent of the well drilling permits issued to unconventional shale gas operators have gone unused. Read more here.]

“In contrast, House Bill 652 as drafted [would] layer additional permitting criteria and extend the timeline of the permit process, all while providing a mechanism for permits to be denied in large part on their popularity.

“Rather than enhancing our economic competitiveness and improving our process, as is the desire of the administration, House Bill 652 sends a signal to the investment community that Pennsylvania is not open for business, while frustrating permit applicants that depend upon a predictable, defined, and reasonable permitting process,” Henderson said.

“DEP is currently evaluating how specifically to define an environmental justice community, which when this bill is overlaid with the ill-defined definition of a burden community, as proffered in the bill will create additional confusion for all parties, the permit applicant, the department, and local communities,” said Henderson.

“We are encouraged by the initiatives outlined by Governor Shapiro and Secretary Negrin to improve the efficiency of the permitting process without sacrificing the importance of public input. These efforts will take some time to implement.

“We are committed to working in partnership with the administration on these goals and encourage this committee to do the same,” Henderson added.

Click Here for the Marcellus Shale Coalition written testimony.

DEP: New Tool To Use 32 Criteria To Define EJ Areas

Fernando Trevino, DEP Special Deputy for Environmental Justice, told the Committee the bill “codifies two important elements of our new EJ [Environmental Justice] policy, the designation of burden or EJ communities, but also the enhanced public participation guidance of the DEP internal permitting process.

“House Bill 652 stipulates that the methods to identify an EJ area shall be determined and reviewed by DEP. This will allow for the bill to remain relevant to the latest analysis of environmental justice without requiring amendments.”

Trevino said, “DEP is about to publish a Pennsylvania Environmental Justice mapping and screening tool called Penn EnviroScreen to standardize the assessment of EJ areas in a very accessible and easy manner.

“Backing this tool with legislation such as House Bill 652 will help strengthen its implementation. The purpose of this tool is to incorporate a variety of factors into one cumulative index.

“The new mapping tool will allow us to identify those [Environmental Justice] communities, including 32 different factors. Not only demographics, but also specific environmental impacts,” said Trevino.

The 32 indicators include--

-- Environmental Exposures: ozone, fine particulate, diesel particulate, toxic air emissions, toxic water emissions, pesticides, traffic density, compressor stations, children’s lead risk;

-- Environmental Effects: Conventional oil/natural gas wells, Unconventional oil/natural gas wells, proximity to railroads, land remediation, hazardous waste and storage sites, municipal waste sites, coal mining, impaired lakes and streams, abandoned mining concerns, flood risk;

-- Sensitive Populations: asthma, no health insurance, cancer, disability, heart disease;

-- Socioeconomic Population: low educational attainment, linguistic isolation, housing-burdened low-income households, poverty, unemployment, race, age over 64, age under 5.

Trevino said DEP believes, “If a community is more vulnerable, we need to have extra protections for that community. And that includes not only Black and Brown communities, that includes rural communities across Pennsylvania.

“DEP fully supports the requirements imposed by House Bill 652 on certain permits, as well as the new additional powers and duties imposed to DEP.

“DEP's updated EJ [Environmental Justice] policy expands the public participation elements covered by House Bill 652 to include outreach activities and other support for EJ communities. Our guidelines are intended to empower environmental justice communities to have a meaningful participation in the process,” explained Trevino.

“DEP has long worked with communities around Pennsylvania, large and small, rural and urban, to further environmental justice. DEP's work has included public engagement throughout the permitting process, and will continue to do so.

“But this policy outlines ways to increase proactive outreach and engagement across Pennsylvania, to build long-lasting relationships with communities outside of individual projects.

“This policy recommends that DEP increases the strategic community education, outreach, engagement, and capacity building trust through our intentional actions.

“We will continue to engage community based organizations, liaisons, stakeholders, and just communities in general that have experience working on environmental justice issues. But to bring new voices to the environmental justice conversation in Pennsylvania, this policy intentionally allows DEP to intentionally target those that have not formally been engaged by the Department in the past,” said Trevino.

In his closing, Trevenio offered to schedule follow up meetings with members of the Committee “to show them the new Penn environment screen and identify those local communities that will qualify as environmental justice injury districts, but also that will have the potential to qualify for the federal funding.”

In response to Rep. Causer’s concern about adding more time and hurdles to the permitting process, Trevenio said, “We don't see it that way. We believe that we can do both [the Impact Report and a hearing] within the timeline that is required, and we believe that adding the extra capacity of our [Regional Environmental Justice] Coordinators will compliment the work our permit reviewers are doing already, and we just are adding an extra component that will be done [during] the regular process.”

Click Here for DEP’s written testimony.

Visit DEP’s Environmental Justice webpage for more information.

Clean Water Action

Maurice Sampson, Eastern PA Director for Clean Water Action, said, “I interpret the intent of this legislation to even the playing field for low income and politically challenged residents by valuing health over wealth in denying facility permits.”

He pointed out over half the adults in Philadelphia are “functionally illiterate,” and other sources note 67 percent are low-literate reading at a sixth- to eighth-grade.

“Ultimately, the effectiveness of the bill will be how the DEP implements the provision for cumulative impact. The decision by department section provides the option to grant a permit despite potentially alarming cumulative impact assessment, if the applicant agrees to additional conditions or mitigating measures set by the department.”

“No one should consider legislation discussed today as being limited to black and brown people. Environmental law has traditionally been written to a standard that's based on cost and profitability.

“Environmental justice legislation reasons those standards should consider the health of the surrounding community.

“This standard, called for in House Bill 652, will make a difference to the black and brown communities of the residents and cities of Chester, Harrisburg, Pittsburgh, and Philadelphia in the neighborhoods of Nicetown, Strawberry Mansion, Eastwick.

“It will also apply to the silently white communities impacted by longwall mining in Green and Washington counties, coal mining and fracking fields in north Pennsylvania, and the more than 200 miles of communities violated by the Mariner East [Natural Gas Liquids] Pipeline.

“Environmental justice is about health and equity, and the full recognition of Article I, Section 27, of the Pennsylvania Constitution guaranteeing all Pennsylvania residents the right to clean air, pure water, the preservation of natural, scenic, historic, and [esthetic] values of the environment,” said Sampson.

Click Here for Clean Water Action’s written testimony.

Rep. Vitali, Committee Chair

“I could have chosen many bills to run today and have a public hearing on today, but I chose this, because frankly I was really surprised about the inability of the department to consider cumulative impact in issuing permits. And I just think that is essential,” said Rep. Greg Vitali (D-Delaware), Majority Chair of the Committee.

“Another point I think that was really poignant and telling here was that so many people in these communities can't even read. I mean, how are they going to protect themselves?” said Rep. Vitali. “How are they going to protect themselves from powerful corporate interests when not only can't they afford a lawyer, but they can't even read?”

“Listen, it's our job to do more to protect everyone. And by giving the Department of Environmental Protection the resources they need, [but] we don't do that,” said Rep. Vitali.

“To the contrary, we restrict them with resources, but to give them one more tool so that they can look at cumulative impact, they can put extra conditions on a permit to protect people. That they, in some instances yes, even deny permits to protect public health and the environment.

“I think this is a good thing.

“Is this legislation without any flaws? No, none is,” said Rep. Vitali. “But as you and Pat Henderson and others know, the legislative process allows for adjustments as legislation moves through the process, and allows legislation to be improved and sensitive to the various stakeholder interests, and that certainly can happen here.

“So with that I thoroughly support this legislation. We plan to run it tomorrow. We plan to move it out of Committee tomorrow, and I think it will be a good thing we're doing for the Commonwealth,” said Rep. Vitali.

Hearing Video/Other Testimony

Click Here to watch a video of the hearing.

Other written testimony presented to the Committee includes--

-- New Jersey State Senator Troy Singleton - Experience with a similar law in New Jersey

-- Institute Of Scrap Recycling Industries Mid-Atlantic, Pittsburgh Chapters

Rep. Greg Vitali (D-Delaware) serves as Majority Chair of the House Environmental Committee and can be contacted by calling 717-787-7647 or sending email to: gvitali@pahouse.net. Rep. Martin Causer (R-Cameron) serves as Minority Chair and can be contacted by calling 717-787-5075 or by sending email to: mcauser@pahousegop.com.

(Photos: Impacts of conventional oil and gas well and unconventional shale gas industries.)

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