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DEP Publishes Interim Final Environmental Justice Policy Changing Permit Review Process; Opens Comment Period Setting 9 Public Hearings

On September 16, the Department of Environmental Protection published the Interim Final Environmental Justice Policy in the PA Bulletin that will now guide DEP’s permit application reviews and outreach efforts in environmental justice areas throughout the Commonwealth. (formal notice)

“A DEP permit applicant who files a permit application on or after September 16 must use the new PennEnviroScreen tool to determine if the permit’s facility is in an environmental justice area.”

The PennEnviroScreen will redefine environmental justice areas using 32 environmental, health and socioeconomic indicators that are spelled out in a 113-page PennEnviroScreen Methodology Document.

Publication will also begin a formal public comment period that is scheduled to end on October 29.

DEP published a second notice formally rescinding the previous 2004 Environmental Justice Public Participation Policy.

Public Meetings/Hearings

The Department is holding two virtual public comment meetings and seven in-person public comment meetings for the purpose of accepting comments on the interim-final EJ Policy and related PennEnviroScreen Methodology Documentation.

During the meeting portion of the event, the Department will describe the EJ Policy and PennEnviroScreen tool. The meeting will include time for public questions on the EJ Policy and PennEnviroScreen.

After the meeting portion, a public hearing will be held at the same location as the public information meeting. The hearing is intended to allow for public testimony on the EJ Policy and PennEnviroScreen tool.

Public meetings will be held--

-- October 11: Virtual, 5 p.m.—7 p.m. Click Here for registration information [when posted];

-- October 12: In-Person, 6 p.m.—8 p.m. Brady Fire Company (Banquet Hall), 700 Maple Street, Ranshaw, Northumberland County;

-- October 16: In-Person, 6 p.m.—8 p.m. University of Scranton Loyola Science Center, 100 Linden Street, Room 133, Scranton, Lackawanna County;

-- October 18: In-Person, 5 p.m.—8 p.m. Erie Center for Arts and Technology, Lawrence Community Room, 650 East Avenue, Erie, Erie County;

-- October 18: In-Person, 6 p.m.—7:30 p.m. North Side Institution GOGIC, Banquet Hall, 302 West North Avenue, Pittsburgh, Allegheny County;

-- October 19: In-Person, 6 p.m.—8 p.m. YMCA Camp Curtin, 2135 North Sixth Street, Harrisburg, Dauphin County;

-- October 21: In-Person, 10 a.m.—12 p.m., ACCESS Community Center, 701 Booth Street, Chester, Delaware County;

-- October 25: Virtual, 5 p.m.—7 p.m. Click Here for registration information [when posted];

-- October 26: In-Person, 5 p.m.—9 p.m. Drexel University, 3141 Chestnut Street, Philadelphia.

Persons wishing to reserve time to present testimony at a meeting must contact Jennifer McLuckie at (717) 772-5633 or RA-EPOEJ@pa.gov at least 24 hours in advance of the hearing.

Members of the public wishing to observe the public comment meetings without providing testimony are also encouraged to access the EJ webpage and register in advance to ensure there is adequate space for both the virtual and in-person comment meetings.

Visit the Environmental Justice Policy Revision webpage for more information [when posted]. Questions about the meetings should be directed to Jennifer McLuckie at RA-EPOEJ@pa.gov or (717) 772-5633.

Persons in need of language interpretation services must contact Jennifer McLuckie at RA-EPOEJ@pa.gov or (717) 772-5633.

Read the entire PA Bulletin notice for more information.

Covered Projects

The Interim Final EJ Policy designates both Public Participation Trigger Projects [permit applications] that are required to go through the enhanced process and Public Participation Opt-In Projects DEP may apply this policy to at its discretion. [Appendix C]

In addition to the project footprint itself, the Interim Policy defines an Area of Concern around the location of a Trigger or Opt-In Project as measuring one-half mile in all directions.

Public Participation Trigger Projects

These permit applications include--

-- NPDES industrial wastewater facilities of 50,000 gallons per day or more

-- Air Permits:

-- New major sources of hazardous air pollutants or criteria pollutants

-- Major modification of a major source

-- Waste Permits: Landfills or other disposal facilities; Transfer Stations; commercial incinerators and other waste processing facilities; Commercial hazardous waste treatment, storage, disposal facilities; Major modifications of these listed facilities

-- Mining Permits: Underground and Surface coal mines; Large industrial mineral surface and underground mines; Coal refuse disposal and reprocessing; Large coal preparation facilities; Revisions to these listed facilities; Using biosolids for reclamation

-- Individual Permits For Land Application of Biosolids

-- Concentrated Animal Feeding Operations: New or expanded more than 1,000 animal units; CAFOs of greater than 300 animal units in Special Protection Watersheds; CAFOs with direct discharge to surface waters

Public Participation Opt-In Projects

“DEP may exercise its discretion and expertise to apply this policy to additional projects and associated permits, authorizations, or approvals.”

“Community members or DEP staff may request projects not specified as Public Participation Trigger Projects, be designated as Opt-In Projects for which Enhanced Public Participation will be incorporated in the DEP application reviews.”

“Community members may utilize the Opt-In Project Request Form to request DEP designate a proposed project for Enhanced Public Participation in accordance with this policy.”

“When making a determination whether to designate a project as an Opt-In Project, DEP will utilize the PennEnviroScreen and consider identified community concerns, present or anticipated environmental impacts, and how those anticipated impacts relate to the existing community environmental burden.”

“Examples of projects that could warrant heightened consideration of Opt-In status include:

-- Plan approvals at a major source of air pollution

-- Resource recovery facility or incinerator

-- Sludge processing facility, combustor, or incinerator

-- Sewage treatment plant with a capacity of more than 50 million gallons per day

-- Transfer station or other solid waste facility, or recycling facility intending to receive at least 100 tons of recyclable material per day

-- Scrap metal facility

-- Landfill, including, but not limited to, a landfill that accepts ash, construction or demolition debris, or solid waste

-- Medical waste incinerator

-- Underground Injection Wells Associated with Oil and Gas development

-- Unconventional Oil and Gas Development (Drill & Operate permits, changes in use;

ESCGPs)

-- Other projects as identified by the community

“In addition, any permits not specified in this Policy as trigger permits or determined to be an Opt-In permit including but not limited to General Permits, renewals or revisions, may serve as Opt-In Permits if DEP determines they warrant special consideration.”

Inspections, Compliance & Enforcement

The Interim Final Policy also includes provisions establishing priorities, at DEP discretion, for inspections and compliance actions within environmental justice areas.

“The Department plans to form a Enforcement and Compliance Team to prioritize inspection and monitoring at sites which have multiple authorizations, multiple on record complaints, habitual violations, sites with high volume generation or unique permit conditions, EJ communities, and sites of significant geographic location and to ensure timely and appropriate responses to violations, implement an efficient criminal referral protocol, and ensure effective collaboration.”

With respect to calculating civil penalties, “DEP interprets impacts to the environment or the public health and safety at an EJ Area to be a relevant factor in the calculation of a penalty amount for a violation and may include a dollar figure in the penalty amount for such a violation provided there is adequate evidence to support a factual finding that the violation caused the harm and the penalty amount fits within the statutory limits.”

PennEnviroScreen

DEP’s Interim Final Environmental Justice Policy uses the online PennEnviroScreen tool to define environmental justice areas using 32 indicators. Those 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.

Click Here for the PennEnviroScreen Tool. Click Here for the Methodology Document.

Denial Of Permits

DEP staff have said in several forums the goal of the Interim Final Environmental Justice Policy is to can enhance opportunities for participation, share more information, provide information in appropriate languages, teach people how to effectively submit comments, hold a hearings or information sessions, but they recognize DEP can not deny a permit solely on environmental justice grounds without additional statutory authority. Read more here.

At a June 5 hearing by the House Environmental Resources and Energy Committee, Fernando Treviño, DEP Special Deputy for Environmental Justice and Justin Dula, Director DEP Office of Environmental Justice testified in support of House Bill 652 (Bullock-D- Philadelphia) requiring environmental impact reports on certain electric generation, waste management, sewage treatment and other facilities that are a major source of air pollution proposed in already burdened communities. Read more here.

House Bill 652 would give DEP the statutory authority to deny a permit application in any environmental justice area based on the “cumulative environmental impacts.”

On June 6, the House Committee amended and reported out House Bill 652 and it is now in the House Rules Committee. Read more here.

On August 16, Sen. Art Haywood (D-Philadelphia) introduced similar legislation in the Senate-- Senate Bill 888.

For more information on the Interim Policy and the PennEnviroScreen tool, visit DEP’s Environmental Justice Policy Revision webpage.

Reference Links:

-- DEP’s Environmental Justice Plan

-- DEP Expands Environmental Justice Protections With Updated Policy, Improved Mapping Tool; Enhanced Permit Reviews Start Sept. 16 [PaEN]

Related Articles - Environmental Justice:

-- House Budget Hearing: Acting DEP Secretary Outlines His Views On Environmental Justice, Announces Fernando Treviño As Special Deputy For Environmental Justice [PaEN]

-- House Committee Holds June 5 Hearing On Bill Requiring Environmental Impact Reports On Certain Electric Generation, Waste, Major Air Pollution Sources Locating In Already Burdened Communities [PaEN]

-- Citizens Advisory Council Presentations Highlight New Center Of Environmental Excellence At DEP To Improve Permitting Efficiency, Deliver Best In Class Service, Share Results; Environmental Justice; More [PaEN]

-- House Committee Reports Out Bill Requiring The Evaluation Of Cumulative Impacts Of Some New Pollution Sources On Communities Already Burdened By Pollution; And Other Bills [PaEN]

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