PADEP Set to Finalize Environmental Justice Policy and Mapping Tool

September 15, 2023
Jessica D. Hunt, Esq. and Michael C. Nines, P.E., LEED AP
MGKF Special Alert

NOTE: The comment deadline on the Interim-Final EJ Policy and PennEnviroScreen mapping tool has been extended to November 30, 2023.

The Pennsylvania Department of Environmental Protection (PADEP) has 
released its Interim-Final Environmental Justice Policy (EJ Policy) that will take effect upon publication in the Pennsylvania Bulletin, which is expected to occur on September 16, 2023. PADEP has also updated to its environmental justice mapping tool (PennEnviroScreen), which PADEP will use to determine whether a community is located in an environmental justice area. The EJ Policy provides guidance on how PADEP will address environmental justice in its decision-making process through proactive community outreach and engagement, enhanced public participation for certain projects, inspections, compliance and enforcement, community development investments, and climate change initiatives. 

Updating PADEP’s current near 20-year old EJ Policy (originally published in 2004), has been a priority for the Shapiro Administration and one of Secretary Richard Negrin’s top four priorities since joining PADEP. To further the development of the EJ Policy, PADEP has been working with various stakeholders, including the Environmental Justice Advisory Board (EJAB), which is charged with making written recommendations to the Secretary concerning policies, practices, and actions that PADEP may implement to advance the goals of Environmental Justice. PADEP has published two prior drafts of the EJ Policy in 2018 and March 2022. The interim final EJ Policy is the result of PADEP’s consideration of the extensive public comment and stakeholder feedback gained during the 2022 Policy revision process.

Key portions of the EJ Policy are discussed below.  

Public Participation Requirements
The EJ Policy establishes enhanced public participation procedures for “trigger” or “opt-in” projects for facilities located or proposed to be located in an environmental justice area (i.e., census block groups with a PennEnviroScreen score above 80) or within 0.5 miles of an environmental justice area (i.e., an Area of Concern). Under prior iterations, an EJ Area was defined based on poverty levels and minority population percentages. The interim final EJ Policy’s methodologies to define an EJ area are much more complex and are modeled after the California EJ Screening Tool, known as CalEnviroScreen 4.0, which employs a weighted index of Environmental indicators including exposures in the categories of climate, land, water, and air quality, as well as population indicators including socioeconomic characteristics, community health, and other population characteristics.

“Trigger projects” are those projects identified by PADEP that may lead to significant public concern due to potential impacts to human health and the environment which touches an environmental justice area. “Trigger projects” include, but are not limited to, NPDES permits for large industrial waste facilities (at or above 50,000 gallons per day), air permits for new major sources or major modifications of a major source, and waste permits (and major modifications that result in an increase in capacity or facility expansion) for landfills and other disposal facilities, transfer stations, commercial incinerators and other waste processing facilities, and commercial hazardous waste treatment, storage, and/or disposal facilities. See Appendix C of the EJ Policy for a complete list of “trigger projects.” 

Even if a project is not considered a “trigger project,” it may still be subject to enhanced public participation if PADEP designates the project as an “opt-in project.” While this can be any type of facility, the EJ Policy provides the following examples: plan approvals at a major source of air pollution, transfer stations or other solid waste facilities intending to receive at least 100 tons of recyclable material per day, and scrap metal facilities. See Appendix C of the EJ Policy for a complete list of examples of “opt-in projects.”

Once PADEP has determined a “trigger” or “opt-in” project permit application is complete, a project-specific public participation strategy will be developed by PADEP’s Office of Environmental Justice (OEJ) in coordination with the regional or district office program, Regional Communications Managers, and Local Government Liaisons. Public participation may include public meetings or hearings, and opportunities for additional public comment. PADEP encourages all applicants to have a pre-application meeting to discuss the project and enhanced public participation that may be required.  

Compliance and Enforcement Initiatives
PADEP will prioritize inspections in EJ areas and plans to establish an Enforcement and Compliance Team to prioritize inspection and monitoring at sites with multiple authorizations, a history of complaints, habitual violations, and sites that have a high-volume generation or unique permit conditions, are located in an environmental justice community, or are in a significant geographic location. 

PADEP will also prioritize taking enforcement actions for violations that occur in an environmental justice area and will use this as an “other relevant” factor when calculating a civil penalty under the substantive environmental statutes. In addition, the EJ Policy reaffirms the use of Community Environmental Projects in lieu of civil penalties. PADEP will develop and maintain a list of community-based projects for which a violator may propose to undertake in satisfaction of a final penalty assessment. 

Office of Environmental Justice Leadership Team
PADEP appointed Fernando Treviño as its special deputy secretary for OEJ, which is a new leadership position. Treviño will shepherd along the finalization and subsequent implementation of the EJ Policy. Regional OEJ staff were also recently introduced to the EJAB on August 15 and will consist of Jordi Comas (Northcentral Regional Coordinator), Amelia Benson (Southwest Regional Coordinator), Elspeth Koehle (Northwest Regional Coordinator), and Dong Yoon Kim (Southeast Regional Office, Special Projects Coordinator).

Additional Comment Period
While the interim final EJ Policy is set to become the new de-facto EJ Policy expected to be adopted on September 16, 2023, PADEP is providing for an additional public comment period due to the substantive revisions to the EJ Policy. Comments will be accepted on the interim final EJ Policy and PennEnviroScreen mapping tool until October 29, 2023. Additional information on how interested parties can submit comments will be provided in the Pennsylvania Bulletin notice. PADEP intends to finalize its EJ Policy in 2024.

For questions regarding the Interim-Final EJ Policy and PennEnviroScreen mapping tool, please contact Jessica Hunt or Michael Nines