PA DEP Environmental Justice Listening Tour: A Guide to Current EJ Rules and Potential Changes

A Guide to Current EJ Rules and Potential Changes

by Kirk Jalbert, Manager of Community-Based Research & Engagement, FracTracker Alliance
and Veronica Coptis, Executive Director, Center for Coalfield Justice

The Pennsylvania Department of Environmental Protection (DEP) will be hosting a nine-stop “listening tour” to hear residents’ perspectives on environmental justice (EJ). These sessions begin in the western part of the state on April 12th and 13th. The complete list of dates and locations of these meetings can be found here. The DEP will also be accepting written comments, which can be either mailed or emailed to DEP-OEJ@pa.gov.

The EJ listening tour follows on the heels of events in May 2016, when environmental advocacy groups questioned the well pad siting practices of oil and gas drilling company Range Resources, causing the DEP to announce it would revisit its EJ policies. Such changes would include reassessing how EJ zones are designated and what kinds of development triggers additional scrutiny by the DEP’s Office of Environmental Justice. We wrote about this story, and detailed how present EJ rules fail to account for oil and gas development in June 2016.

The following guide is meant to provide helpful information to residents in preparing for the listening tour. We first offer a summary of PA’s present EJ policies, followed by a commentary on what gaps we believe exist in those policies, and conclude with some reflections on EJ policies in other U.S. states and what we might learn from them in reassessing our own state’s EJ laws.

Listening Sessions Format

Each environmental justice listening tour will include opening remarks from Acting Secretary McDonnell, followed by a brief presentation from the Office of Environmental Justice, and then will open to receive testimony from the public. Verbal testimony is limited to 3 minutes for each witness. Organizations are asked to designate one witness to present testimony on their behalf. Verbal comments will be recorded by a court stenographer, and transcripts will be made available to the public at a later date.

The DEP Office of Environmental Justice has offered a set of eight questions to guide comments in the listening tour sessions. They are as follows:

What environmental justice concerns are most pressing in your community?
Do you feel that the current definition of an environmental justice community (20% poverty and/or 30% minority) properly represents the needs of your community and the Commonwealth at large?
Do you feel the DEP is engaged with marginalized communities to ensure that they have a voice in the decision making process? How can the DEP be more engaged with these communities?
What tools have you used to find out information on DEP permitting/enforcement actions?
What ways can the DEP be more effective at sharing information with the public?
How can the DEP be more effective at receiving public input?
What resource(s) is your community lacking that the DEP can provide that would assist in efforts to ensure environmental equity?
What additional steps can be taken by the Department to effectively reach out to these vulnerable communities to ensure that their concerns are taken into consideration?

Summary of Existing EJ Policies

According to the U.S. Environmental Protection Agency, environmental justice is “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.” This same definition is used by the DEP.

In 2004, the DEP codified this EJ definition in the Environmental Justice Public Participation Policy. EJ designations are defined by the DEP as any census tract where 20% or more of the population lives in poverty and/or 30% or more of the population identifies as a minority. Designations are based on the U.S. Census Bureau and by the federal poverty guidelines.

Below is a map of current EJ designated census tracts in PA that also shows the counties where listening tour sessions will be held. When zoomed in to regional scale, EJ areas can be clicked to see their current poverty and minority percentages. The locations of oil and gas wells and permits are also visible at the regional scale.

Map of current EJ areas (based on 2015 census data) shown in teal, with listening tour counties outlined in red

View map fullscreen | How FracTracker maps work

Of note in the 2004 policy are the kinds of permits that trigger a potential EJ review – specifically: industrial wastewater facilities, air permits for new major source of hazardous air pollution, waste permits for landfills and incinerators, coal mining permits and coal refuse facilities, and/or concentrated animal feeding operations. The policy also allows for review of “opt-in permits” the DEP believes warrant special consideration, but we have found no evidence to suggest that this option has been historically used.

When a project triggers EJ review, the DEP “strongly encourages” the applicant meets with community stakeholders prior to submitting their permit, with the idea that additional public outreach makes project details more apparent. The applicant is also encouraged to produce “plain language” information sheets, online and in print form, regarding the proposed activity.

Issues with Existing PA EJ Policies

A complete list of what may occur when a project triggers EJ review can be found here. The following table is a breakdown of where we see deficiencies in PA EJ policies that need to be addressed:

Existing Policy	Issue	Possible Solutions
EJ Definition EJ areas defined by 20% poverty/30% minority indicators.EJ ensures meaningful involvement of all people regardless of race, color, national origin, or income.	Many communities are just outside poverty/minority thresholds, or are spread across multiple census tracts experiencing concentrated industrial activities. Disproportionate exist due to other factors besides poverty and race.	DEP should go beyond the census tracts, as well as account for other factors such as the “working poor”, homeownership rates, assisted school lunches rate, disability and elderly populations, and language barriers. Reviews should factor in “cumulative impacts” of more developing relative to existing industrial burdens. Regardless of “age and gender” should be added to EJ protection language.
Trigger Permits Limited kinds of “trigger” permit types are listed in the Public Participation Policy as eligible for EJ review.	Permits outside of these categories are also degrading the communities and being targeted to environmental justice communities. Oil and gas extractions, pipelines, and other infrastructure are not currently considered trigger permits but are impacting many environmental justice areas.	DEP should oil and gas permits to the trigger list. All permits, even of seemingly lesser severity, should trigger review to see if they contribute to cumulative impacts to already burdened community.
Permit Notifications DEP program staff must notify the Office of EJ when a permit “trigger” EJ review and report the details of the proposed activity.	Currently not all DEP program staff are alerting the EJ office of trigger permits, and many are not education on EJ policies.	More training and funding needs to be allocated to make sure that trigger permits are not overlooked or mishandled.
Public Education Requiring the distribution of “plain language” information sheets regarding the proposed activity and permit conditions. Public notices are to be placed in widely read publications in print and online.	Does not always happen or the information produced is inadequately written or poorly distributed. Public notices are put in the legal sections of paper, often initial meetings are not even publicly noticed if the company is the only one organizing the meeting.	Enforce this requirement and include real infographics as much as possible. Consult with local community groups to determine what communication tools work best. Publish additional notice outside of newspaper in widely read publications, flyers in local businesses, community centers, and church bulletins. Require applicants to do direct mailing. Updated the “eFacts notification system to include more information and send email notices to interested parties when updates in non-technical language.
Applicant Public Meetings DEP “strongly suggests” applicants meet with all stakeholders, before applying for permit, as well as throughout the permitting process.	Not all stakeholders are being brought into conversations and often DEP allows the applicant to decide who these people should be. Applicants are often not transparent about their plans. Meetings do not occur at all stages of the process.	It should not be up to the applicant to control the process and do outreach. DEP should ensure that all interested parties are engaged in the permitting process. Meeting should be held during the entire permitting process. This should be required, not “strongly suggested.” A meeting should occur after a permit is administratively complete and again after technical review is done but before a decision is made. Many changes happened during technical review and this gives communities the opportunity to weigh in on the final project and understand its timeline. DEP should always participate in these meetings and make themselves available to answer questions from the community.
DEP Public Meetings DEP holds an informal public conference within 30 days of receiving the application to inform residents of EJ area designation and the nature of project.	These meetings frequently are not able to answer people questions and residents are told to wait for additional information. The format of these meetings do not allow for dialogue, which prevents the community from learning from each other.	The DEP needs to hold the informal public conferences in discussion formats so residents can ask questions together and receive answers in person, not just take notes and tell residents they will receive a written response. DEP staff responsible for reviewing the proposal must be present at the meetings to answer questions.
Public Comments DEP accepts comments from EJ communities.	These comments are often not taken into consideration, or given very little weight during the permitting process. Instead, the comments are merely noted for the record.	Create a formal process for integrating comments from community experts who are often best able to provide information about how a project will impact their community.
DEP Availability DEP will maintain presence and be availability to residents throughout permitting process.	DEP staff are available during public meetings but are otherwise unavailable until there is a permit decision. Inadequate continuing public oversight of how EJ policies are administered across the state.	Actively provide updates on the permitting process and changes to the application. The burden should not be on an EJ community to stay up date on the permit, but should be the DEP and applicant’s responsibility. DEP staff responsible for reviewing the proposal must be available to the community to answer questions. DEP should also prioritize filling its regional Environmental Advocate staff positions currently vacant in many of its districts. Convert the DEP Citizen Environmental Justice Advisory Board (EJAB) to a full committee, with the power to oversee EJ permits under review and influence state EJ policies. Hold quarterly EJAB meetings in different DEP regions on a rotating basis.

Reflections on other states’ EJ policies

States that use poverty and race indicators differently:

Connecticut: Uses income below 200% of the federal poverty level (“working poor”).
Illinois: indicates low-income and/or minority population as being “greater than twice the statewide average.”
Massachusetts: Defines by census “block group” rather than census tract, which can identify pocket EJ areas that might be lost in larger census tracts.
Texas: For income indicator, uses census block group and income below 200% of the federal poverty level.

States that go beyond poverty and race indicators:

California: Considers existing disproportionate environmental burden. Also, demographics include “low levels of homeownership, high rent burden…or low levels of educational attainment.”
Connecticut: includes a “distressed community” indicator, defined as whether it is eligible for HUD grants, or experienced layoffs/tax loss due to a major plant closing.
Georgia: includes language for elderly and disabled populations “The Americans with Disabilities Act (ADA) encourages the involvement of people with disabilities in the development and improvement of transportation and paratransit plans and services.”
Massachusetts: Uses linguistic isolation, defined as “25% or more of households having no one over the age of 14 who speaks English only, or very well.”
New Jersey: Communities can file a petition to be recognized as a vulnerable.

Example of better public participation affordances:

New Jersey: When a community is designated EJ, a task force is formed to develop a unique “Action Plan” after consultation with residents, local, and county government, that will address environmental, social and economic factors affecting their health or environment. This task force monitors Action Plan implementation, and advises development projects to reduce impacts.

Conclusions

Environmental justice rules came into existence in order to deal with the burdens of large polluting facilities like landfills, incinerators, and coal mines. Race and poverty measures are, without question, two very important indicators that have provided for the fair treatment of people of all races, income, and cultures in these instances. However, if we are to properly assess how residents are disproportionately impacted across a range of environmental burdens in the state, other indicators of marginalization should be included. The Center for Coalfield Justice suggests a few in a report titled Community Indicators of Environmental Justice: A Baseline Report Focusing on Greene and Washington Counties, Pennsylvania.

Fair treatment in EJ communities should also mean offering mechanisms for meaningful input that allow residents to shape the ultimate direction of proposed projects, as well. Finally, current EJ policies are very limited in only addressing future projects, whereas issues such as how disadvantaged communities, struggling with legacy problems such water, air, and soil pollution, are left to other agencies to deal with.

We encourage residents of Pennsylvania to attend an environmental justice listening tour session to share their perspectives, and how the DEP can better fulfill its mandates to protect vulnerable communities.

Photo: Clairton Coke Works, by Mark Dixon, Blue Lens, LLC.