Environmental justice considerations in air permitting decisions are not new. Under Present Clinton’s 1994 Executive Order 12898 “Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations,” federal agencies are asked to “make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.” What makes environmental justice, or “EJ,” a growing interest in air permitting activities is the increased priority placed on it under the current U.S. Environmental Protection Administration (EPA). This increased prioritization is reflected in EPA’s “Plan EJ 2014,” a comprehensive strategy to guide EPA in developing stronger relationships with communities and increasing efforts to improve the environmental conditions and public health in specially designated communities.
A few definitions are in order to better understand EPA’s EJ initiative. First, “environmental justice” is defined as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” In using the term fair treatment, “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”
Furthermore, meaningful involvement means that:
- Potentially affected community members have an appropriate opportunity to participate in decisions about a proposed activity that will affect their
environment and/or health
- The public’s contribution can influence the regulatory agency’s decision
- The concerns of all participants involved will be considered in the decision-making process
- The decision makers seek out and facilitate the involvement of those potentially affected
So Why A Concern During Air Permitting?
As outlined in Plan EJ 2014, a key goal of EPA is the consideration of environmental justice in permitting procedures that affect “overburdened communities.” Overburdened communities are characterized as the minority, low-income, tribal, and indigenous populations or communities in the U.S. that potentially experience disproportionate environmental harms and risks as a result of greater vulnerability to environmental hazards. This increased vulnerability may be attributable to both an accumulation of negative and lack of positive environmental, health, economic, or social conditions within these populations or communities.
For several years, EPA Regional Offices or their delegates in the states have incorporated environmental justice considerations into their review of applications for air permits, and in particular, Prevention of Significant Deterioration (PSD) permit applications. In fact, EPA’s Environmental Appeals Board (EAB) has held, in a review of the appeal of a PSD permit issued to Prairie State Generating Company in Illinois, that EJ must be considered in connection with the issuance of PSD permits by EPA Regional Offices and states acting under delegations of federal authority. The EAB reinforced the importance of completing an EJ analysis in a 2010 PSD permit appeal decision involving Shell Gulf of Mexico, Inc. and Shell Offshore, Inc. (referred to as “Shell II”). In that case, the EAB concluded that in the context of an EJ analysis, compliance with a National Ambient Air Quality Analysis (NAAQS) is “emblematic” of achieving a level of public health protection that, based on the level of protection afforded by a primary NAAQS, demonstrates that minority or low-income populations will not experience disproportionately high and adverse human health or environmental effects due to exposure to relevant criteria pollutants. But, in remanding the PSD permit, the EAB went on to determine that the permitting agency offered no other information or evidence in the record that it considered anything beyond compliance with the NAAQS in preparing the environmental justice analysis.
Therefore, key for permit applicants facing possible EJ scrutiny is a well crafted, well documented analysis that provides evidence of no disproportionate impact.
Steps in Crafting an EJ Analysis
While Plan EJ 2014 includes a cross-agency focus area titled “Considering Environmental Justice in Permitting,” with the related strategy of developing tools to assist permitting authorities to meaningfully address environmental justice in permitting decisions, no recent tools have been developed. Instead, and until further tools are implemented by EPA and state permitting agencies, permit applicants can rely on past guidance to understand the steps in crafting an EJ Analysis.
The simplified flowchart below is one such guidance (adapted from EPA’s EJ Decision Making Tree in a 1999 EJ Recommendation Final report).
The flowchart is closely aligned with procedures provided in EPA Region II’s Interim Environmental Justice Policy (December 2000) requiring the identification of:
- Affected populations and the communities of concern (COC)
- Adverse environmental impacts associated with the new or modified source and evaluate the significance of the impact
- In the case of a significant adverse impact, determination of whether any environmental impacts would be disproportionate in their distribution, affecting minority and/or low-income populations within the COC to a greater extent than populations that do not have their characteristics
- In the case of a disproportionate impact, consideration of affected communities or populations identified as “overburdened” and mitigation of those impacts
Considerations in Developing an EJ Analysis
Identifying the Affected Population
A key, early step in an EJ analysis is the identification of any affected populations, or communities of concern. While many tools are available for identifying census tracts, not all web-based products are of equal usefulness. In fact, some of EPA’s census tract information relies on outdated, 2000 census information despite the availability of 2010 census information. Census tract information is necessary in order to determine whether any affected populations include minority, low-income, tribal, and indigenous populations or communities. Exceeding a threshold of 51.1% of any of these protected groups indicates the presence of a community of concern.
Equally important for identifying a community of concern in a nearby affected population is the distance from the new or modified source. Although EPA’s guidance generally suggests a review of populations within a one mile radius around the new or modified source, an expanded radius of consideration should be considered if the PSD permit air quality assessment modeling indicates that maximum ground level impacts occur at a further distance.
Determination of Adverse Impacts
A PSD permit application for a new or modified source typically requires an ambient air quality analysis to assess the impact of the emissions from the proposed project. In order to obtain a PSD permit, such analyses must show that the proposed new / modified source will not cause or contribute to a violation of any applicable air quality standard.
While the EAB has concluded that compliance with the NAAQS is “emblematic” of achieving a level of public health protection that demonstrates a community of concern will not experience disproportionate environmental effects, it is advantageous to show that maximum predicted concentrations (even lower than the NAAQS) from the project will not occur in the communities of concern. This representation illustrates a more conclusive argument in an EJ analysis, taken from a recent air permitting effort in Illinois. The figure on the top shows a two mile radius circle, centered on the proposed new / modified source, with the communities of concern highlighted in red to the north, northeast, and southeast of the source. The figure on the bottom shows the location of predicted maximum concentrations (based on air dispersion modeling), in micrograms per cubic meter, for several regulated pollutants of concern. While the new/modified source in this illustration was able to show conclusively that the source would not cause or contribute to any NAAQS exceedence, and thus supporting no adverse impact, it was further able to demonstrate that maximum impacts from the source alone would not be predicted to occur in any of the nearby communities of concern. As such, no additional disparate impact analysis was required as part of the EJ analysis.
Determination of Disproportionate Impacts
EAB provides further guidance suggesting that a well crafted, well-documented analysis that the permitting agency can rely upon is important for a determination. In a related denial to a petition for appeal of PSD permit issued to Avenal Power Center, LLP in California in 2011, the EAB noted:
“...the Agency in this instance provided a thirty-one page environmental justice analysis coupled with a reasoned explanation for why it concluded that the limited information available prevented it from making a determination regarding potential disproportionate impacts caused by short-term NO emissions. The Board did not address in Shell II whether a permit issuer must make a determinative conclusion after analyzing available, valid data in response to an environmental justice concern. Here, however, the Board finds the Agency’s inability to whether short-term NO emissions have a disproportionate impact on the populations surrounding the proposed facility is permissible, particularly in light of the facts of this case and the discretion afforded to federal agencies under the Executive Order. The Executive Order does not mandate that the Agency reach a determinative outcome when it conducts an environmental justice analysis, especially when the available valid data is not sufficient to support a determinative outcome…Where, as here, the Agency conducts a substantive environmental justice analysis that endeavors to include and analyze data that is germane to the environmental justice issue raised during the comment period, and the permit issuer demonstrates that it exercised its considered judgment when determining that it could not reach a determinative conclusion due to the insufficiency of available valid data, the Board will decline to grant review of the environmental justice analysis.”
Just As Important – Community Outreach
Plan EJ 2014 has an expressed goal of enhancing the ability of overburdened communities to participate fully and meaningfully in the permitting process. Unfortunately, these tools are not yet available. But, even with a well-crafted, well-documented EJ analysis that shows no adverse and disproportionate impact on minority, low-income, tribal, and indigenous populations or communities, a source should proactively engage the local community in the overall permitting process. In a recent responsiveness summary to comments to a late December 2011 PSD permit, the Illinois Environmental Protection Agency noted that the source had included, as a supplement to its EJ analysis, references to numerous public outreach activities, including many meetings with and telephones calls to members of the community, community organizations, local officials, the local community college, regional and national environmental groups, and members of the Illinois EPA Environmental Justice Advisory Committee regarding the proposed source in the months prior to the public hearing for the proposed PSD permit drafted for the new source. Such activities demonstrate a substantial effort by the source to fully inform the public of its proposed facility and to gather information on community concerns prior to generating its EJ Analysis.
To assure meaningful participation in the permitting process, especially in this era of cash-strapped public permitting agencies, the source should consider making available courtesy copies of the complete permit record to representatives of community organizations. Equally important, depending on the demographic research obtained in identifying the affected communities, the applicant may need to translate the proposed permit and associated permit materials, into languages prevalent in the affected communities surrounding the new / modified source. Finally, the source should ensure that appropriate translators are also made available at any public hearings and/or meetings associated with information exchange concerning the new / modified source. Plan EJ 2014 can add a new, and possibly resource-intensive step to an already analytically intensive, time sensitive air permitting process, however, it should not be feared. Success stories found in the administrative record and the industrial community, indicate that a new / modified source can demonstrate that obligations of environmental justice are met without derailing the permitting process.