Environmental Justice-Related Document Number 7
To Members of IERG’s Environmental Justice-Related Issues Workgroup:
On Thursday, October 31, 2013, IERG Staff and three of IERG’s Member Company representatives
met with the Illinois EPA to discuss its revised Environmental Justice (“EJ”) Public Participation Policy and how it is implementing this newly enhanced program. Meeting attendees included:
Alec Messina, Alec Davis, and Brenda Carter, IERG; Kathy Hodge, Hodge Dwyer &Driver; John Dent, Tate & Lyle; Jack Webster, Viscofan; Keith Bodger, Nicor; Director Lisa Bonnett, Chief Legal
Counsel John Kim, Julie Armitage, Scott Phillips, Sanjay Sofat, Kurt Neibergall, Ken Page, Dominic Saebler, Chris Pressnall, and Sherrie Elzinga, Illinois EPA. For those unfamiliar with some of those names, Kurt is head of the Agency’s Office of Community Relations, Ken is the Agency’s EJ Officer, Dominic is the Agency’s head of Information Technology, and Chris is the attorney
primarily responsible for EJ-related issues.
Director Bonnett opened the meeting with a few general comments that centered around the ongoing work the Agency is conducting to “smooth out some of the kinks” in the existing EJ program, and U.S. EPA’s interest in Illinois’ efforts, which are the primary factors in rolling this program out on the current schedule. Ken Page and Chris Pressnall then took over and walked through the process for determining when EJ outreach activities are appropriate. The process is initiated when clerical staff logs a permitting transaction into its Agency tracking program. When that transaction is entered – and the Agency explained this will happen for all permitting transactions that require a final agency decision (including renewals) – the Agency software compares the site location against its Agency EJ map to determine whether the site falls in a potential EJ area. If it does, the software flags the site, which is then noted for the permit analyst assigned to that permitting transaction. The assigned analyst then confirms that the location is within a potential EJ area, and prepares a document that details the nature of the permitting transaction, and provides other pertinent background information, such as whether there is an active community group or activist near the site. That document is then transmitted to the Agency’s internal EJ Workgroup – comprised of Ken Page, Chris Pressnall, a member of the Office of Community Relations, and a member of each Bureau’s permitting section – for its review and determination whether some kind of EJ outreach activity is appropriate.
In response to IERG’s questions, the Agency provided significant detail about this process. First, the Agency refers to its EJ software program as “EJ Start,” and they believe Illinois has the only state EJ mapping tool. Second, a community is identified as a potential EJ community if the population is either more than approximately 70% minority or more than approximately 60% below the poverty level. These numbers represent approximately twice the statewide minority/poverty averages, but the Provided by the Illinois Environmental Regulatory Group Agency acknowledged that it adjusted the numbers a bit so that its EJ Start map comports with U.S. EPA’s EJ View. Third, the population data is based on a 5-year rolling average from the census bureau, and is updated every year so that facilities can become “un-flagged” should the population around the facility change. Fourth, communities are reviewed at the census block level, which is obviously dependent on population density. Census blocks in the City of Chicago are clearly much smaller than census blocks in rural Illinois. Finally, the Agency uses a 1-mile buffer when considering air permitting transactions, and a 0.5 mile buffer when considering other transactions, so that if a facility is just outside a potential EJ area, but within the buffer area, it will still be considered for potential EJ-related outreach.
Every week, the Agency’s internal EJ Workgroup meets to review the list of permitting actions that have been flagged by EJ Start, to discuss the background material prepared by the permit analyst, and to decide if any EJ-related outreach is necessary. The Agency considers a number of factors in making this decision, including the nature of the permitting transaction, whether there is an increase in emissions, whether there is an active group of citizens in the area, whether the site or the activity being permitted is considered controversial, etc. If some kind of outreach is necessary, the Workgroup has a number of tools it may utilize, from notice letters to fact sheets to informal and formal meetings. The Agency maintains a “Master Outreach List,” by region of the State, of groups and/or individuals believed to be interested in environmental permitting activities. IERG Staff requested a copy of the list, as well as to be added to it.
While the Agency went to great lengths to explain that it believes the use of this enhanced outreach will minimize delay by resolving potential issues with locals, and that the Agency intends to characterize the work being done in the notices in a positive fashion, or at the very least in a nonthreatening fashion, IERG Staff still has some concerns with the program. First, the Agency indicated that a facility does not necessarily need to be located in a potential EJ community or within an associated buffer area for EJ-related outreach to be considered. More specifically, the Agency indicated that, under certain circumstances, the Director will exercise her discretion to determine that some kind of outreach is appropriate. IERG Staff did not learn exactly what facts would need to be present for this discretion to be exercised, but we suspect it depends on what kind of facility is involved, whether that site has been the subject of media or activist scrutiny, or whether there is substantial political interest. Second, IERG also learned that EJ-related activities could also occur during enforcement. In those instances where permitting and enforcement at a site are occurring concurrently, the Agency indicated that it might determine that EJ-related outreach is appropriate. This might occur when an interim or final order is entered, or to solicit advice from local groups when the parties are trying to identify possible Supplemental Environmental Projects. The Agency is mindful that opening up enforcement actions to potential EJ-related outreach is a slippery slope, and indicated that it would try to utilize this tool very carefully. Third, the Agency also indicated that the EJ Policy would also play a role in the LUST and SRP programs. When questioned by IERG Staff on the issue of when such outreach might occur, Scott Phillips suggested it might be appropriate to engage in EJ-related outreach when a corrective action plan is submitted to the Agency, or in advance of when remedial work is being done at a site. Staff is hopeful, however, that many of these concerns will be addressed as the program continues to evolve.
The Agency shared a number of other thoughts on the program in which our Members might be interested. For instance, the Director made it clear that its mapping tool, EJ Start, would not be made public or uploaded onto the Agency’s website; however, in the near future, an interested citizen will be able to access the Agency’s permit portal on its website, and will be able to see whether a facility is in a potential EJ community and whether any EJ-related activities have occurred with regards to that site. Also, IERG Staff pressed the Agency to be more proactive in providing advanced notice to the facility of EJ-related outreach – whether it’s in the form of a notice or a fact sheet – so that the facility can be prepared for calls from interested citizens, media, or local officials. Staff also suggested that a facility should have an opportunity to review fact sheets before they are published for factual errors; while this was initially met with stiff resistance, the Director agreed to consider it. The Agency too encouraged facilities to conduct their own outreach activities regarding significant projects, and indicated in some cases, the Agency may find such facility outreach to be sufficient so as to preclude Agency outreach. Finally, the Agency indicated that it has not yet added a “cumulative impact” component to its EJ program, but that it intends to follow U.S. EPA’s lead on the issue and is awaiting future guidance on the subject.
IERG Staff has an update on our effort to determine which of our Members’ facilities have been flagged by the Agency. As you may recall, IERG Staff put together a list of sites, submitted to IERG Staff by some of our Members, and asked the Agency to review and respond by noting which of the listed sites were flagged. Other Members were uncomfortable submitting street addresses to the Agency, because of a concern that this would bring additional scrutiny to the site, and requested IERG Staff to obtain a list of the flagged sites. At the time of this request, no such list existed, but we have recently obtained such a list. A few words of caution, however, the list is approximately 1250 pages, and contains a number of duplicates, triplicates, and inactive sites. In addition, there are a number of sites that clearly fall in EJ areas and have been omitted from the list given to us by the Agency. The Agency has committed to taking another look at the document in the hopes of giving us a more accurate list in the near future. The Agency’s EJ Officer has also agreed to take another look at the list we submitted to personally check each street address. Further, if you would like to request the information from Ken Page directly, he asks that you email him with the street addresses (and city, of course) at his email address, Ken.Page@Illinois.gov. IERG Staff hopes to have answers for those Members who submitted information to us as quickly as possible.
IERG will continue to monitor the Agency’s efforts and offer suggestions to the Agency on implementation. To do so, however, IERG Staff asks that you continue to keep us informed of your
experiences with the program. Further, IERG Staff also asks for your input on being more aggressive in urging IEPA to seek legislative authority and/or promulgate rules so that everyone will
know how the program will work. Staff is still very troubled by the Agency’s implementation of a program like this pursuant to an agreed administrative order, but without statutory authority, and
without notice and comment rulemaking. If you have any questions, please email Alec Messina at amessina@ierg.org, or call him at 217-522-5512, extension 289.