01.11.2021 Virginia’s Air Pollution Control Board Implements Environmental Justice Initiative By: John M. "Jay" Holloway, III

The Virginia Department of Environmental Quality’s (DEQ’s) new Environmental Justice (EJ) Initiative announced October 16, 2020 is in motion and moving in parallel before the State Air Pollution Control Board (Air Board).  The EJ Initiative will involve the creation of an Office of Environmental Justice at DEQ and the development of an Environmental Justice Action Plan.  The Air Board, through its Committee on Public Engagement, took public comments in early December 2020 on those portions of DEQ’s EJ Initiative that relate to the work of the Air Board.  Shortly thereafter, the Air Board conducted a hearing approving the first Prevention of Significant Deterioration (PSD) permit subject to DEQ’s EJ review process.  This article discusses the new EJ program and how it is likely to be implemented going forward. 

EJ New Source Permitting

On December 3, 2020, the Air Board held a hearing to consider a Prevention of Significant Deterioration (PSD) permit for the U.S. Navy’s Norfolk Naval Shipyard (NNS) to construct a 17 MW state-of-the-art Combined Heat and Power (CHP) Plant to provide steam and electricity to the Shipyard.  The project will replace an aging CHP Plant and employ Best Available Control Technology (BACT) Selective Catalytic Reduction (SCR) to control emissions.

The hearing lasted more than 6.5 hours, with much of the hearing devoted to EJ issues.  Opponents argued the project would disproportionately impact a nearby minority, low-income community.  Weighing on the Board’s consideration of the permit was DEQ’s October 2020 EJ Initiative and the January 2020 court opinion that held the Board failed to adequately consider the disproportionate health effects of a natural gas compressor station in Buckingham County on a nearby minority and low-income community.  The Navy and DEQ made a series of presentations showing how EJ concerns had been and would be addressed. 

The Navy conducted a detailed environmental justice analysis of surrounding communities, including a public health assessment that focused on the health effects of the pollutants to be emitted.  The concentrations of these pollutants were shown to be well below health-based standards.  The Navy held three virtual information sessions in May, August and October 2020 and provided information by social media.  It also engaged in direct outreach to 71 organizations, 98 individuals, 9 civic organization, and 2 churches in the vicinity of the Shipyard, including clergy/faith leaders, non-profit, education, public housing, workforce development, and minority community representatives, civic leagues, minority/small businesses, and elected officials.  Finally, it attended a meeting organized by the Portsmouth NAACP in October 2020 to discuss the project.

In its presentation, DEQ noted that it used an EPA EJ screening tool called “EJSCREEN” that maps and screens a nationally consistent data set to identify minority and low-income populations where EJ concerns may be warranted.  Using that tool, it ran three EJSCREEN runs centered on the new CHP plant location using one, two, and five-mile radii.  For all runs, the minority population was above the Virginia average of 37%, and the low-income population was above the Virginia average of 27%.  The screen showed the population within one mile of the plant is 2,443 (86% minority, 68% low income), within two miles is 35,951 (70% minority, 50% low income), and within five miles is 231,870 (63% minority, 40% low income).  Based on these data, and the definitions of “environmental justice community,” “population of color,” “community of color,” “low income,” and “low income community” in the Virginia Environmental Justice Act, Va. Code Ann. 2.2-234, et seq. (EJ Act), DEQ concluded that one or more Environmental Justice communities existed at least within two miles of the project and possibly within five miles and beyond.  DEQ also looked to the EPA External Civil Rights Compliance Tool Kit which applies to Title VI civil rights investigations of existing facilities and as a check on state greenfield permits.

DEQ’s position at the hearing was that the public outreach, the pollution control requirements, and modeling and toxicology analyses ensured that the CHP plant will not have any disproportionate adverse environmental or health impacts on the surrounding area, including the environmental justice communities.  The Board ultimately agreed with DEQ’s position and voted to grant the permit.    

Future EJ Permitting

The EJ Act is very vague as to how EJ is to be addressed by state agencies.  It says only that “[i]t is the policy of the Commonwealth to promote environmental justice and ensure that it is carried out throughout the Commonwealth, with a focus on environmental justice communities and fence-line communities.”  VA Code Ann. 2.2-235.  DEQ’s EJ Initiative is intended to formalize an EJ process that will apply to all permitting.

Going forward, it is clear that permits before the Air Board will have a very steep hill to climb.  DEQ has already announced that it plans to identify potentially controversial permit applications with EJ implications early in the process.  These permits may not be limited to PSD permits.  Under Va. Code Ann. 10.1-1322.01, if 25 individual requests for a public hearing are made during the public comment period, DEQ’s Director must decide whether to grant a public hearing.  Among the criteria the Director is to consider is whether there is significant public interest in issuance of the permit and whether there are substantial disputed issues raised.  Considering DEQ’s focus on EJ, it seems unlikely the Director would decide not to grant a hearing if EJ objections are raised.

Those applying for an air permit of any type would be well advised to consider EJ concerns early in the application process and take appropriate steps to address them. 

Environmental Justice Initiative (DEQ Oct. 16, 2020).