Contributed by Isaac Smith, Principal, PPM Consultants
On December 22, 2022, EPA’s Office of Air and Radiation issued 8 principles to guide consideration of environmental justice (EJ) in Clean Air Act (CAA) permitting decisions. According to EPA, the goal of the guidance is to provide a framework of principles and practices to assist each EPA region to promote EJ and equity through air permitting programs using existing CAA authorities and discretion, federal civil rights laws, as well as other federal and state laws that may help to mitigate potential adverse and disproportionate effects of a permitting action.
The 8 Principles for Addressing EJ Concerns in Air Permitting are as follows:
1.) Identify communities with potential EJ concerns using EJScreen or other suitable geographic information system (GIS) and mapping tools. EJScreen allows users the ability to screen for whether communities affected by an air permitting action are already affected by other pollution sources and may be vulnerable based on age, unemployment, or linguistic isolation, among other nonpollution stressors.
2.) Engage early in the permitting process to promote meaningful participation and fair treatment during the air permitting process. This practice creates the opportunity for the permitting authority, either independently or working with the permit applicant, to identify resources or any additional information that would facilitate understanding of the potential effects of a permitting action on the community and promote fair treatment and meaningful participation throughout the permitting process. It is important for the applicant and the permitting authority to meaningfully engage with the community in order to discuss and consider potential approaches to addressing concerns before, during, and after the air permitting process.
3.) Enhance public involvement throughout the permitting process, which could include training on how to make effective comments on permits; making the permit application and data easily and publicly available; notifying the public of the action through multiple communication methods; providing multiple methods for public comment; and holding formal public hearings and informal public meetings in or near the community.
4.) Conduct a “fit for purpose” EJ analysis when a permitting action has disproportionately adverse effects on a community to: 1) address the principle of fair treatment by further evaluating adverse and disproportionate impacts and identifying ways to prevent or mitigate such impacts; and 2) address the principle of meaningful involvement by fostering enhanced community engagement in the permitting decision.
5.) Minimize and mitigate disproportionately high and adverse effects associated with the permit action to promote fair treatment by fully examining all relevant statutory and regulatory authorities, including discretionary authorities, to develop permit terms and conditions to address or mitigate identified air quality impacts to the extent feasible.
6.) Provide federal support throughout the air permitting process which will include EPA assistance to collaborate with the permitting authority to provide technical support, guidance, and recommendations to address these effects on the community, including cumulative effects.
7.) Enhance transparency throughout the air permitting process by making the administrative record readily available in a format and location that is easily accessible to the affected community.
8.) Build capacity to enhance the consideration of EJ in the air permitting process. EPA supports peer-to-peer learning between our regulatory partners, stakeholders, and affected communities to identify best practices on how to address EJ concerns and collectively expand our positive impact in environmentally overburdened communities
According to the EPA, the principles are intended to promote consistent use of best practices that have been developed over time, including early identification of potential EJ concerns in specific locations, and early, ongoing engagement with affected communities throughout the permitting process. EPA Regions are also encouraged to share these principles with state, tribal and local agencies for feedback. EPA’s regional offices are expected to utilize the principles in Federal air permitting decisions.
Although this EPA guidance document is the latest action in a series of publications by the Agency, it should be noted that the document does not change or substitute any existing requirement under the CAA or its regulations, any EPA-approved CAA permitting program, or Title VI of the Civil Rights Act, nor are they a regulation themselves. The guidance document does not establish legally binding requirements and, to the extent there is any inconsistency between this document and any statute, regulation, or guidance, the latter takes precedence.
Additionally, the vast majority of air permitting programs are administered by individual state and/or local agencies, and as such, they are not required to follow EPA “guidance”. Those local and/or state agencies with primacy have the ability to address EJ concerns as they see fit. Some state and local agencies embrace stakeholders with industry and others not so much. These variations in local leadership and local politics distinctly impact how the “guidance” is incorporated into permitting, if at all. The overarching problem with national guidance is that there is no statutory provision – only guidance suggestion. The end result is that EPA’s guidance will be given regard in general accordance with the politics of that state.
EJ is a complex situation that lacks well-defined environmental regulations, thus making air permitting a battleground for environmental organizations and state agencies. If you have any air permitting needs or questions on how EJ can impact the permitting process, please give your local PPM office a call.
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