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PADEP’s New Permit Decision Guarantee Offers Opportunities Among Challenges

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On November 3, 2012, PADEP published notice of final new guidance for its revamped Permit Decision Guarantee Policy, which restructures the environmental permitting process. Last week, Joel highlighted the way the new Permit Decision Guarantee Policy interacts with the Pennsylvania Natural Diversity Inventory review; this week, I’m going to discuss how the Permit Decision Guarantee Policy interacts with the Department’s existing Environmental Justice Public Participation Policy.  I’ve worked extensively with the Environmental Justice ("EJ") policy in my past experience representing residents and community groups, and as an appointee to the Department’s Environmental Justice Advisory Board. Though currently undergoing some modernizing revisions, the EJ Public Participation Policy, which was published in 2004, received unqualified support from Department officials at the most recent Advisory Board meeting in early November.

 

Among other things, the new Permit Decision Guarantee guidance puts the onus on applicants to submit an administratively complete and technically sound application before the Department’s obligation to provide a timely review kicks in. As a result, the applicant’s pre-application strategy will be more critical than ever to an efficient and prompt permitting decision. The Department has scheduled a series of webinars to provide information to various sectors of the regulated community about the new permitting guidance.

 

The Permit Decision Guarantee Policy, including its specific timeframes for rendering decisions on complete applications, does nothing to alter the process set forth in the EJ Public Participation Policy, under which certain permit applications trigger additional public outreach if the project is located within an Environmental Justice area (“EJ Area”). “Environmental Justice” generally reflects the idea that disadvantaged communities ought not bear a disproportionate level of environmental burdens as compared to other communities. After submission of a trigger permit, the Department determines whether the project implicates an EJ Area – broadly stated, the Department identifies an “area of concern” around the project area and looks to see if any census tract within the area of concern has a minority population of 30% or greater, or 20% or more of its population at or below the federal poverty level. If so, the Department will invoke its enhanced public participation provisions. The Department then circulates a plain language description of the proposed project to residents of the EJ Area and schedules a public information session at which the applicant may voluntarily participate. Residents may also seek a public hearing before the Department to offer testimony about their concerns with the proposed project and its potential impacts.

 

Although cooperation under the EJ Public Participation Policy is not a box that the applicant must check off to achieve administrative completeness under the Permit Decision Guarantee policy, the Department still – with or without the applicant’s cooperation – must undertake the EJ Area analysis and offer enhanced public participation opportunities to the community when applicable. In addition, the time limits that the Permit Decision Guarantee Policy now imposes on the Department once an administratively complete application is in hand will not trump the existing public participation process. The applicant that is out in front with the community is less likely to see that permitting clock grind to a halt while an enhanced public participation process plays out.  As a result, it makes a lot of sense for a permit applicant to determine whether the EJ Public Participation Policy will apply and, if so, to approach community engagement thoughtfully.

 

The applicant that takes the time to think through a community engagement strategy during the pre-application phase will be well prepared for the enhanced public participation process. The public information meeting conducted under the EJ policy is often the first time that the applicant engages directly with the community about its project. For better, and often for worse, this presentation can have a significant impact on the applicant’s relationship with the community going forward. In my experience representing community groups, I saw applicants who did this well, and others who ignored or attempted to outmaneuver the local community and wound up alienating residents and forfeiting credibility – which only makes it harder for the Department and elected representatives to support the applicant through the process. 

 

Simply put, it makes the Department’s job easier when applicants seize the chance for early community engagement.  In turn, this gives applicants the ability to affect better results for their projects.  

 

Community outreach involves a complex set of interactions, and it is critical as an applicant to know your intended host community and its concerns. Know your project too, and how it might affect the neighboring community. This is wise with respect to any project in any community.  But take the time in the pre-application phase to determine whether your project is in, or close enough to impact, an EJ community by using the Department’s eMap PA tool. Note that the mapping application currently relies on 2000 U.S. Census data, but the Department is in the process of updating to the 2010 Census data set, which may affect the applicability of the policy to your project.

 

The importance that the Department’s new permitting structure places on the pre-application period presents an opportunity for applicants who seek trigger permits in EJ Areas to work together with community stakeholders – not only to resolve residents’ issues before the application is submitted and community concerns harden into opposition at public meetings and hearings, but also to identify avenues for positive collaboration that can enhance the applicant’s business interests, improve local environmental conditions, and promote further economic development in the community. The applicant who does not take advantage of this opportunity risks delay, uncertainty, and negative media attention, not to mention its own credibility with the Department and elected officials.