Earlier this week, Illinois Chamber Energy Council members received an update on the Environmental justice-related settlement reached by the United States EPA and the Illinois EPA. Provided below is that summary. For further questions, please contact Executive Director Alec Messina.
USEPA and Illinois EPA have recently agreed to a settlement on the Title 6 Civil Rights complaint filed by environmental activists after Illinois EPA issued a construction permit for a scrap metal recycling facility in Chicago. That agreement, contained within an Informal Resolution Agreement (or “IRA”) signed by both parties, can be viewed here.
In short, the agreement is a mixed bag. There are some positives that we can take away from the agreement, but there are also some sizeable loopholes or vague language that will allow project opponents to request more from
Illinois EPA when permitting controversial projects. Those issues, which will be highlighted below, will likely lead to further challenges when Illinois EPA isn’t “sufficiently aggressive” in its approach to these projects. But the positives in the agreement aren’t insignificant, and it may provide a roadmap for state legislation that the business community might be wise to pursue this spring.
The first six pages of the linked agreement (please note, any page references here are meant to indicate the page number of the pdf, not the number of the IRA itself) are comprised of the transmittal letter from USEPA to Illinois EPA and a useful summary of the factual background that led up to the agreed resolution. Then, beginning on page 7, there is a very useful summary of Illinois EPA’s air permitting process. It is here that the first positive development is contained, beginning at the bottom of page 7, which states that the agreement applies only to certain air construction permits located in areas identified by Illinois EPA as areas of EJ concern. Those construction permits are limited to: 1) those sources that are new and will ultimately require a CAAPP or FESOP operating permit, 2) those existing sources that already have a CAAPP or FESOP operating permit and whose construction permit will result in an increase in annual permitted emissions, and 3) an existing source whose construction permit will result in an increase in annual permitted emissions and will for the first time require a CAAPP or FESOP operating permit.
Pages 13 through 21 include a host of enhancements to Illinois EPA’s existing EJ program. First, Illinois EPA agreed to a number of changes to how it implements EJ policy within its permit review process, including 1) revising the EJ Notification letter to better inform the public about its right to public participation, 2) authorizing the consideration prior adjudications when reviewing applications for construction permits, as well as adding permit conditions related to an applicant’s past compliance history, 3) requiring an EJ analysis to be conducted (which must be in writing and made available to the public along with the public notice), 4) should the EJ analysis indicate a disproportionate and adverse impact, then IEPA may make additional refinements to modeling or emissions inputs from the proposed project, prioritize future compliance inspections and related enforcement, prioritize grant funding in the affected community, and/or consult with USEPA on potential mitigation options, including fence-line monitoring.
Let me share a few observations about this first segment. First, there are currently certain industrial sectors where consideration of past non-compliance may be used as a consideration in the permitting process, but this language is clearly an expansion of that existing authority. Second, given the challenges in Illinois and other states to define what an EJ analysis should include, I think the language in the IRA is a positive development. With that said, however, that analysis is pretty broadly defined to include: 1) information related to other sources (which seems pretty vague), 2) information related to waste generation or emissions, 3) data identified within USEPA’s EJ Screen as either environmental, health, or socioeconomic indicators (which appears to allow for a pretty broad expansion of IEPA review), 4) the location of sensitive populations near the facility, 5) factors that may increase community exposure as compared to other populations (e.g., subsistence fishing), and 6) a consultation with USEPA, or other state or federal regulatory agencies, on other appropriate areas of study. Looking at this language from the perspective of how best to administer a permitting program, it appears on its face that permitting staff and/or Agency management will be asked to make some pretty difficult decisions.
Second, Illinois EPA agreed to a number of provisions in the IRA that address procedural safeguards as it implements its EJ policy. Those provisions include: 1) adding language requested by USEPA to its Notice of Nondiscrimination, 2) revising its Grievance Procedure to address issues with the filing and response to complaints, 3) IEPA Staff training to ensure compliance with these new procedures, and 4) an enhanced Public Participation plan. Those changes, found on pages 17 through 19, include small modifications to how hearings are scheduled and how comments may be presented, how “impacted communities” will be identified, a mechanism for IEPA’s community partners to provide input on how to determine how best to disseminate information, maintaining resources for obtaining translation services, and other steps to ensure that the public is informed of the totality of the process (added clarity, translation, etc).
It appears that much of the language contained in this segment is fairly straightforward and, frankly, aligns with the Illinois EPA’s mission to fully inform and educate the public. But there are still some concerns. It will be interesting to see how the Agency’s Grievance Procedure will be amended, but I’m more concerned with how “impacted communities” will be identified to ensure that public access is sufficient and effective. That term could be relatively subjective, and will an agency permitting decision survive a challenge if the Agency doesn’t take strong enough steps to ensure that they’ve identified who may be impacted? This may seem a little like nitpicking on my part, but it is with these undefined terms where challenges often arise out of.
Third, and finally, there are a handful of provisions to ensure meaningful access to 1) persons with limited English proficiency and 2) persons with disabilities.
Pages 21 through 25 include requirements for Illinois EPA staff training, as well as other general terms of the IRA, including a mechanism for modifying the agreement in the future.
There is a lot to unpack here, and it will be interesting to see how the Illinois EPA begins to implement these provisions and how environmental activists view these changes and use them to slow or derail certain projects deemed to be controversial.
Interested in joining the Illinois Chamber Energy Council? Contact Danielle Blake here.
-Article provided by the Illinois Chamber of Commerce