EPA Issues Environmental Justice Guidance For Clean Air Act Permits – Clean Air / Pollution

At the end of 2022, the U.S. Environmental Protection Agency
(EPA)’s Office of Air and Radiation released guidance entitled “Principles for
Addressing Environmental Justice in Air Permitting.” Issued
as an attachment to a memorandum directed to all EPA Regional
Air and Radiation Division Directors, the guidance provides an
“interim operating framework” for evaluating
environmental justice (EJ) issues during the Clean Air Act
permitting process while EPA examines additional ways to advance
EJ.

The guidance sets forth eight principles that regional air
permitting staff should apply to permitting decisions. Companies
seeking air permits or permit amendments should familiarize
themselves with these principles and, where appropriate, consider
strategies for proactively incorporating them into permit
applications to mitigate the risk of adverse permit decisions or
extensive delays.

Although the guidance is theoretically non-binding, based on
experience, industry should anticipate that EPA will evaluate
permit applications and draft preconstruction and Title V permits
against these eight principles, likely in a checklist fashion.
Documenting efforts to meet each of these principles – even
if not required by law or as part of a formal EJ permitting
strategy – will likely help streamline the permit review
process and prevent undue delays in permit issuance. For
significant permitting actions and projects for which the timing of
issuance is critical, companies should consider a more robust
approach (for example, a stand-alone permit application
supplement). To the extent that a permit is denied or challenged on
appeal, one can use the same documentation to defeat the
challenge.

The eight principles are as follows:

1. Identify communities with potential EJ
   concerns. EPA encourages permitting authorities to
   use EPA
   EJSCREEN or other mapping tools to identify EJ communities
   to engage with during the permitting process.




2. Engage early in the permitting process to promote
   meaningful participation and treatment. EPA encourages
   permitting authorities to engage with impacted communities early,
   preferably before the relevant authority submits a permit. EPA
   recommends that permit applicants work with permitting authorities
   to provide opportunities for meaningful participation and fair
   treatment throughout the permitting process.




3. Enhance public involvement throughout the permitting
   process. EPA recommends that both permitting authorities
   and permit applicants take community engagement a step further by
   providing adversely affected communities with the tools to properly
   engage in the permitting process, such as training on how to
   comment, access public data, and receive translation and
   interpretive services.




4. Conduct a “fit for purpose” EJ
   analysis. EPA encourages permitting authorities to conduct
   an EJ analysis to achieve two policy objectives: (1) to address the
   fair treatment principle by evaluating potential impacts; and (2)
   to encourage meaningful community involvement. EPA provides a
   non-exhaustive list of elements that such analyses may contain,
   including but not limited to, an evaluation of the facility’s
   compliance record, and an evaluation of the facility’s air
   monitoring and modeling data.




5. Minimize and mitigate disproportionally high and
   adverse effects associated with the permit action. EPA
   recommends that permitting authorities use all legal authority,
   including discretionary authority, to advance EJ. EPA also states
   its intention to submit formal comments on permits to identify
   available discretionary authority under federal, state, or local
   law that may apply to the permit.




6. Provide federal support throughout the air permitting
   process. EPA states that it plans to collaborate with
   permitting authorities to provide technical support, guidance, and
   recommendations on addressing EJ concerns as necessary.




7. Enhance transparency throughout the air permitting
   process. EPA reiterates the importance of permitting
   authorities providing transparency throughout the permitting
   process, including making the supporting administrative record
   readily available and clearly documenting concerns raised by an
   impacted community.




8. Build capacity to enhance the consideration of EJ in
   the air permitting process. EPA stresses the importance of
   collaboration among regulatory authorities, stakeholders, and
   affected communities to share best practices for addressing EJ
   concerns.

EPA’s guidance is largely consistent with the recent
agency guidance on EJ best practices, such as its recent FAQ on considering EJ in permitting.
However, the targeted focus on considering EJ in the context of air
permitting and the direction to EPA Regions to share this guidance
when collaborating with state and local regulators signal a shift
in tone from prior guidance, with a sharper and more determined
call to action. This is consistent with the Biden EPA’s
stated commitment to hold state and local authorities accountable
through its oversight authority to ensure that they holistically
consider EJ concerns in air permit applications

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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