Environmental Justice and Permitting Guidelines

Section 3

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Terry Wesley
Environmental Justice Coordinator
(212) 637-5027

Tasha Frazier
Environmental Justice Assistant
(212) 637-3861

3.0 Environmental Justice and Permitting Guidelines

3.1 Identification of Potential Environmental Justice Permitting Cases
3.2 Meaningful and Early Public Involvement
3.3 Community-Identified Environmental Justice Issues
3.4 Responding to Disproportionate Effects, Evaluations, and Community Concerns
Footnotes

3.0 Environmental Justice and Permitting Guidelines

The Environmental Justice and Permitting Guidelines provide permitting staff with guidance on how to consider environmental justice (EJ) in the context of permitting decisions. Permitting staff should apply these guidelines regarding permitting decisions that include new major permits, significant permit modifications, or major permit renewals. Following the steps outlined below will help to ensure that EPA, Region 2's permitting decisions are consistent with the EO. To expedite Region 2's evaluation of whether there are EJ implications to a proposed permit, permitting staff should work with applicants, as necessary, to obtain sufficient information to perform the following analyses¹².

3.1 Identification of Potential Environmental Justice Permitting Cases

Potential EJ concerns may be raised early in the permitting process either through the initial screening analysis or by the community. As appropriate, either before or at the time a permit application is submitted to Region 2, the boundaries of the COC and the preliminary burden analysis (Section 2.2.1) should be developed. Should the preliminary burden analysis indicate that there is a potential concern, appropriate action should be pursued to minimize and/or mitigate such concerns and the COC demographics should be compared to a statistical reference area (Section 2.2.2).

Should the demographic determination (Section 2.2.3) indicate that the COC is a potential EJ community, the environmental load profile analysis (Section 2.2.4) should be conducted and a determination made (Section 2.2.5) whether a disproportionately high and adverse human health or environmental burden is indicated. As appropriate, the results of the analysis should be summarized in a document, letter, or memorandum (Section 2.2.6).

Using the above-defined process, permitting staff should integrate EJ analyses with the permit review as follows:

i. Notify the community and interested stakeholders of upcoming permit applications, when known, or upon receipt of a permit application. This could be accomplished through the use of Region 2's Permit Complaint System.

ii. If the facility/source is an Indian nation's area of interest, notify the Region 2 Indian Program Coordinator who will notify the appropriate tribe. (The Region has initiated discussions with the Indian nations to define such areas.)

iii. Conduct a preliminary burden analysis upon the receipt of the permit application or upon potential EJ issues being raised by the community/citizen group.

iv. Should the preliminary burden analysis indicate potential environmental concerns, appropriate action should be pursued to minimize and/or mitigate such concerns. Proceed with conducting the EJ analysis (See Section 2.2).

v. Meet with the permit applicant if the community's demographic representation indicates that the facility is located within a potential EJ community. The permitting staff should coordinate with the permit applicant to explain the Region 2 EJ, analysis, and to develop a plan to address the findings.

vi. If the EJ analysis determines that the COC is an EJ community, coordinate with the permit applicant and the community to address appropriate action. However, if the EJ analysis determines that the COC is not an EJ community, the permitting staff should continue with the permit review process in step (viii).

vii. Generally, make the results of the demographic and environmental burden analysis publicly available no later than the Public Notice of the draft permit. If potential EJ concerns are raised during the public comment period on the draft permit, the results of the analysis would usually be incorporated as part of the responsiveness summary. In any event, staff should include the results in the Administrative Record.

viii. Develop the draft permit.

Where the COC does not meet the demographic and/or environmental burden requirements for an EJ area identification in accordance with the Region's Interim Policy, permitting staff should continue to be mindful of and, as appropriate, be responsive to the community's identified concerns.

3.2 Meaningful and Early Public Involvement

Where the demographic and environmental burden analysis indicates an EJ community, refer to Section 2.2 of these Guidelines and to the Environmental Justice and Community Involvement Guidelines (Section 5.0) to determine appropriate public involvement actions.

In some instances (e.g. involving air facilities) the impacted community may be different from or extend beyond the community where the facility or source is located. The permitting staff should determine the area of the demographic and the environmental load profile analysis based on its knowledge of the type and effect of the facility or source.

3.3 Community-Identified Environmental Justice Issues

EPA normally provides enhanced public participation where it is aware of, or a community raises, potential EJ concerns. If a citizen or community group identifies EJ concerns in an area potentially impacted by EPA's permit decision, the permitting staff should consider the community-identified EJ concerns, proceed as instructed in Section 3.1.1 above, and initiate the EJ analysis provided for in Section 2.2 of the Interim Policy.

3.4 Responding to Disproportionate Effects, Evaluations, and Community Concerns

This Section identifies specific responses which may be appropriate, based on the Region's Interim Policy, permitting staff's evaluation, as well as input from the permit applicant, state/local government officials and the public . As noted in Section 2.0, an identification of a disproportionately high and adverse human health or environmental effect on a minority population, or low-income population, does not preclude the proposed agency action from going forward. However, since every EJ permitting situation is unique, the permitting staff should exercise its best judgment. The appropriate response to a finding of disproportionately high and adverse health effect will be factored into the permit decision-making process; and this should be clearly explained to the permit applicant and the public as the Region works with our stakeholders to address and resolve EJ concerns. (See Appendix 1 for a suggested process for factoring EJ into permit decision-making)

The Environmental Appeals Board (EAB) has identified two broad areas in which EPA should exercise its discretion to achieve an effective response to EJ issues in the permitting process. These areas are: (1) public participation, and (2) the omnibus authority - i.e., EPA's authority under various statutory and regulatory provisions to set conditions as it determines necessary in order to protect human health and the environment.

Enhanced public participation. The EAB has held that "when the Region has a basis to believe that operation of the facility may have a disproportionate effect on a minority or low-income segment of the affected community, the Region should, as a matter of policy, exercise its discretion to assure early and ongoing opportunities for public involvement in the permitting process." Early and ongoing public participation helps achieve EJ by ensuring that citizens' concerns and information about the affected community have been factored in to EPA's decision-making process.

Public participation is a two-way process. EPA receives information, comments and advice, but it also disseminates information, analyses, and decisions. Nevertheless, routine public participation procedures are not always adequate in minority or low-income communities, where there may be additional barriers to communication.

In general, as mentioned above, the permitting staff should provide opportunities for meaningful public participation that go beyond the routine public participation procedures (e.g., holding public information sessions, establishing an information repository.) For additional guidance on enhancing public participation, refer to the Environmental Justice and Community Involvement Guidelines (Section 5.0), and the NEJAC's "Model Plan for Public Participation." ¹³

Authority to set permit conditions. The omnibus authority, as provided for in various statutes and regulations, gives EPA the discretion to take disproportionate effects into account in reaching permit decisions. Permitting personnel may consider the following as additional measures, as appropriate under applicable statutes, when developing permit conditions:

i. Monitoring. It may be appropriate to include permit conditions that set additional monitoring requirements, or require the permitted facility to make monitoring data more readily accessible to the impacted community.

ii Risk reduction. Additional steps which will reduce risk from a permitted activity are appropriate, where the impacted population already faces a related disproportionately high and adverse health effect. The permitting staff may consider improved or more stringent standard operating procedures (SOPs) to reduce releases, and therefore exposures. For example, SOPs may include material handling procedures to reduce air emissions. The Agency may require toxic use reduction plans and pollution prevention practices and prioritize technical assistance for facilities in EJ areas.

iii. Prevention and preparedness of accidental releases. Additional requirements for emergency preparedness may be appropriate (e.g., increase testing and maintenance of equipment and communication/alarm systems) to reduce the risk from an accidental or unpermitted release. Permitting staff should ensure that the Community-Right-to-Know requirements are being met, the Local Emergency Planning Commission's are notified as appropriate, and that Response Plans are updated accordingly.

Encourage Stakeholder Agreements. EPA can also play an important role in encouraging the parties to reach agreements outside the scope of the agency's permitting authority. For example, the permit applicant and community members may be able to negotiate 'Good Neighbor Agreements' such as truck routes or operating hours to mitigate the impact of a facility on that community.

Footnotes
12. See EPA's Office of General Counsel memorandum, dated December 1, 2000, titled "EPA Statutory and Regulatory Authorities Under Which Environmental Justice Issues May Be Addressed in Permitting."
13. The NEJAC Model Plan for Public Participation [PDF 464 KB, 20 pp] (February, 2000) was developed in November 1996 by the National Environmental Justice Advisory Council (NEJAC) (EPA's federal advisory committee on Environmental Justice matters) in order to provide the Agency with guidance on enhancing public participation.

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