EPA is stepping up its efforts to “promote meaningful engagement of overburdened communities in permitting activities.” In plain English, EPA has now put environmental justice considerations at the top of the list of the things you need to worry about the next time you seek an environmental permit.
Lisa Jackson, former EPA Administrator, made environmental justice one of her top priorities. In 2011, EPA published “Plan EJ 2014,” a strategy for “advancing” environmental justice. The Plan had three goals:
- Protect health and the environment in “overburdened” communities;
- Empower communities to take action to improve their health and the environment; and
- Establish partnerships with local, state, tribal and federal governments and organizations to further these goals.
Overburdened communities, according to EPA, are minority, low-income and tribal groups that potentially experience “disproportionate” risks from exposure to environmental hazards.
In early May 2013, EPA put part of this plan into effect, issuing “EPA Activities to Promote Environmental Justice in the Permit Application Process.” This release consists of two parts. The first is guidance to EPA’s Regional offices, directing them all to create plans to ensure “meaningful engagement” by overburdened communities in EPA permitting activities. Each EPA Regional office has since issued its implementation plan, which can be found here. If you have a project or facility that needs an EPA permit, it is well worth your time to examine these documents.
Although they differ in details, the regional plans contain common components and similarities, as recommended by EPA headquarters. After all, how many ways are there to engage with the public. The plans each define the categories of permits that will be prioritized for “enhanced” public involvement. Typically, the permits potentially subject to enhanced review include PSD/new source review air permits for new or modified major sources, “significant” underground injection well permits, industrial NPDES discharge permits for new sources/discharges or existing sources with major modifications, and RCRA permits for combustion facilities or corrective action sites. Some plans identify specific priority areas. For example, Region 3′s plan prioritizes all Washington, DC water discharge permits. Most plans then adopt screening approaches, using geospatial tools such as “EJSCREEN,” which includes demographic and environmental data at the census block group level, to perform initial screening of “priority” permits for environmental justice concerns and to highlight candidate permits for additional review and public outreach.
The regional plans generally contain the following elements:
- Internal Responsibilities – a description of the roles and responsibilities of the different permitting and and support programs within the Region, including the development of an outreach and communication plan and coordination with state and local authorities.
- A step-by-step process for conducting EJ outreach and analyses, including (1) planning and gathering information; (2) coordination within EPA; and (3) communicating with the affected community and the permit applicant
The second part of EPA’s announcement is a document entitled “Promising Practices for Permit Applicants Seeking EPA-Issued Permits: Ways to Engage Neighboring Communities.” As its title suggests, this document is intended to identify “best practices” for permit applicants to address EJ communities in the permit process. The overall thrust of the document is straightforward and obvious – Be a good neighbor, engage the community early and often and maintain a dialogue to gain trust and manage expectations. The document identifies five specific strategies for achieving this goal:
- Think Ahead: Consider what kind of community engagement is appropriate by understanding the community demographics, who in the community might be impacted, whether other facilities/pollution sources are nearby, what the existing exposure of the community is to pollution, whether risk assessments have been performed, whether the proposed activity is likely to cause concerns. Consider whether to conduct a community assessment and whether to develop a public participation plan.
- Engage Community Leaders: Identify and reach out to elected and unelected community leaders, including, as appropriate, tribal governments, grassroots organizations, faith community leaders, academic institutions, state, local and county governments, environmental groups and health organizations.
- Engage Effectively: Maintain and foster sustained outreach involvement by participants and seek community input. Consider providing status reports and updates and public education through information sessions.
- Communicate Effectively: Use appropriate outreach methods, including traditional and social media, fact sheets, brochures, postcards, websites, public and private meetings, and hotlines, all with the goal of establishing a dialogue with the affected community. Hold periodic meetings at convenient meeting times.
- Follow Up: Respond to comments and maintain engagement, including providing updates and performance records.
What do these documents mean for the permitting process, and what, if anything, should you do about them? First, note that the program only applies to EPA-issued permits. Where a state has been delegated authority to issue permits, the strategy does not apply. States, however, may adopt similar approaches, particularly if they don’t have any existing programs for addressing EJ. (Well, at least some states might).
Second, if you are expecting to apply for an EPA-issued permit, review that Region’s implementation plan to see if your permit is in a high-priority category. Consider using the screening tools to determine if the permit will face greater EJ emphasis. Sometimes, screening may not be needed, as EJ concerns will be evident from the outset. If so, develop a plan for addressing the EJ issues, including a solid plan for community involvement and communication. Coordinate this effort with the Region and consider adopting appropriate methods like those identified in EPA’s “Promising Practices.”
Addressing EJ concerns in the early stages of your planning will reduce the potential for unexpected problems to arise at critical junctures in the permitting process.