Pittsburgh, PA and Washington, DC
Legal Intelligencer
(by Sean McGovern and Amanda Brosy)
The Shapiro administration recently released its Interim Final Environmental Justice Policy DEP ID: 015-0501-002 (“Interim Final Policy”) (http://www.depgreenport.state.pa.us/elibrary/GetFolder?FolderID=4556 (follow link to “Environmental Justice Policy.PDF”) (last visited Sept. 23, 2023)), along with a link to the latest Environmental Justice Mapping and Screening Tool (“PennEnviroScreen”) (available online at https://gis.dep.pa.gov/PennEnviroScreen/ (last visited Sept. 23, 2023)). The Policy took effect on September 16, 2023, when official notice of the interim final rulemaking was published in the Pennsylvania Bulletin. See 53 Pa. Bull. 5854 (September 16, 2023).
Pennsylvania’s Environmental Justice Policy
The Commonwealth first adopted an Environmental Justice Policy (EJ Policy) in 2004 to provide citizens in EJ communities enhanced public participation opportunities during certain DEP permit application processes. In 2018, DEP circulated a draft revised policy for public comment, but ultimately withdrew the proposed revisions in 2020 following receipt of public comments. After conducting further outreach in 2021, DEP proposed an updated policy that would refine and expand the scope of the withdrawn 2018 revisions. On March 12, 2022, DEP released a draft of the EJ Policy for public comment, and subsequently received more than 1,200 comments during the comment period. The Interim Final Policy is the latest version of the EJ Policy to have been released by DEP since the comment period closed last spring. Although DEP had previously indicated that it was working to prepare a Comment Response Document in tandem with the Interim Final Policy, it has yet to release such a Document.
Important Features of the Interim Final Policy
The Interim Final Policy will likely have a tangible impact on permitting and enforcement processes for various industries going forward. Below are some important provisions to be aware of:
- The Pennsylvania EJ Mapping and Screening Tool – PennEnviroScreen
The Interim Final Policy requires use of the PennEnviroScreen tool, which will replace DEP’s current EJ Areas Viewer tool. PennEnviroScreen is currently live and fully accessible to the public. DEP began using the tool on September 16th to determine whether facilities are located in EJ areas based on 32 environmental, health, socioeconomic, and demographic indicators. According to DEP’s recently revised Environmental Justice Policy Revision webpage, permit applicants planning to file a permit application on or after September 16, 2023 “should consider using the new PennEnviroScreen tool to determine if the permit’s facility is in an environmental justice area.” (Emphasis added). See https://www.dep.pa.gov/PublicParticipation/OfficeofEnvironmentalJustice/Pages/Policy-Revision.aspx) (note that shortly after the Interim Final Policy’s release, this webpage had indicated that applicants “must use” the new tool on/after September 16th). A 113-page “Methodology Document,” (DEP ID: 015-0501-003) which is intended to explain the rationale behind the PennEnviroScreen tool, is also available (http://www.depgreenport.state.pa.us/elibrary/GetFolder?FolderID=4556 (follow link to “Pennsylvania Environmental Justice Mapping and Screening Tool (PennEnviroScreen) Methodology Documentation 2023.PDF”) (last visited Sept. 23, 2023)). Industry should be aware that DEP plans to regularly update the criteria used to evaluate areas where the Interim Final Policy applies (EJ areas). To allow for a level of certainty, however, the Interim Final Policy states that “the EJ Areas in effect at the key decision point of the project will follow that project.” Interim Final Policy at Section III; see also Appendix B, “Environmental Justice Area Criteria”.
- Trigger Projects v. Opt-In Projects
DEP regulated activities that are listed as “Trigger Projects” in Appendix C automatically require application of the Interim Final Policy’s provisions. Examples in the Interim Final Policy include various mining permits (bituminous and anthracite underground and surface mines), waste permits (landfills, transfer stations, commercial incinerators), and air permits (new major source of hazardous pollutants or criteria pollutants). Id. at Appendix C, “Public Participation Trigger Projects”. While the 2022 Draft Policy had classified Oil and Gas unconventional well permits as Trigger Projects, the Interim Final Policy does not; however, various types of unconventional oil and gas projects are listed as “Opt-In Projects.” Other Opt-In Projects include resource recovery facilities, scrap metal facilities, and “other projects as identified by the community.” Id. After receiving a request from the community or a DEP staff member to apply the Interim Final Policy to Opt-In Projects, DEP may decide to do so using its “discretion and expertise.” Id. at Section V(A)(2).
- Inspections, Compliance, and Enforcement
In the event there are comparable inspection and enforcement scenarios, and DEP does not have the resources to take all the necessary actions at the same time, DEP may exercise its discretion and prioritize an EJ Area. Further, DEP plans to form an “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.” Id. at Section VI(B)(1).
- Civil Penalties
The Interim Final Policy also indicates that 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 penalties for violations, 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 harm and the penalty amount fits within the statutory limits.” Id. at Section VI(B)(2).
What’s Next?
The Interim Final Policy’s publication date was also the start of a formal public comment period that will run until October 29, 2023. During the comment period, DEP will accept both written and verbal comments on both the Interim Final Policy and the Methodology Document. Starting on October 11, 2023, DEP will hold two virtual public comment meetings and seven in-person public comment meetings to gather public feedback (the full Community Public Meeting Schedule is available online at https://www.dep.pa.gov/PublicParticipation/OfficeofEnvironmentalJustice/Pages/Policy-Revision.aspx (last visited Sept. 23, 2023)). These meetings will include time for DEP to describe the Interim Final Policy and PennEnviroScreen and take questions, as well as a public hearing portion where DEP will accept public testimony.
Receipt and review of public comments on the Interim Final Policy will be yet another “critical benchmark towards the final EJ Policy,” which is due from DEP in 2024. DEP Newsroom, Shapiro Administration Expands Environmental Justice Protections with Updated Policy and Improved Mapping Tool (Aug. 29, 2023), https://www.ahs.dep.pa.gov/NewsRoomPublic/articleviewer.aspx?id=22337&typeid=1.
Babst Calland’s energy and environmental attorneys will be tracking the EJ Policy as DEP responds to comments and moves to finalize the policy next year. If you have any questions about the environmental justice developments described in this article, please contact Sean McGovern at 412-394-5439 or smcgovern@babstcalland.com or Amanda Brosy at 202-853-3465 or abrosy@babstcalland.com.
Sean McGovern is a shareholder in the Environmental and Energy and Natural Resources practices of Babst Calland. His practice involves counseling clients on a variety of federal, state, and local regulatory and compliance issues related to mining, renewable, oil and natural gas well development, production, midstream, storage, plugging and restoration in the Appalachian Basin. He also has experience with environmental transactions, including due diligence activities; environmental justice considerations and requirements; and river basin commissions.
Amanda Brosy is an associate in the Environmental practice of Babst Calland. Her practice involves client counseling on compliance with federal and state environmental laws and regulations, resolving liabilities under federal and state remediation programs, and advising clients on significant environmental liability and compliance issues arising in various types of transactions.
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Reprinted with permission from the October 5, 2023 edition of The Legal Intelligencer© 2023 ALM Media Properties, LLC. All rights reserved.
