I am submitting these comments on the above-referenced Guidance Memo. While I’m pleased to see that the Guidance Memo acknowledges the Director’s responsibilities to comply with the EJ Act, the guidance memo falls short of what the EJ Act requires the Director to do when reviewing landfill permits. Similarly, the Guidance Memo falls short of the responsibility of the Director under DEQ’s enabling statute “to carry out the purposes” of DEQ, VA Code §10.1-1186(10), including the purposes to “further environmental justice and enhance public participation in the regulatory and permitting processes” and “[t]o ensure the fair treatment and meaningful involvement of all people regardless of race, color, national origin, faith, disability, or income with respect to the administration of environmental laws, regulations, and policies.” VA Code §10.1-1183(B)(4, 13). 

The Guidance memo is silent on how the Director will determine whether the applicant has provided “meaningful involvement” in the permitting process, and what measures DEQ will take to ensure “meaningful involvement” in the permitting process has taken place. The Guidance Memo merely states that DEQ is “currently working to improve its public outreach” and “is currently exploring additional notification methods.” However, “meaningful involvement” means more than just outreach and notification. As set forth in the EJ Act, “meaningful involvement means the requirements that (i) affected and vulnerable community residents have access and opportunities to participate in the full cycle of the decision-making process about a proposed activity that will affect their environment or health and (ii) decision makers will seek out and consider such participation, allowing the views and perspectives of community residents to shape and influence the decision.” VA Code §2.2-234. The guidance document needs to include steps to ensure that the public has “opportunities to participate in the full cycle of the decision-making process”, including the drafting of any permit once DEQ determines the application is complete. Otherwise, the public hearing becomes nothing but an exercise in “announce and defend,” which is the antithesis of “meaningful involvement.” Moreover, the Director’s decision should include a description of the number of meetings with affected residents, what kind of information was shared and how it was shared, as well as how the input from the affected community influenced the outcome during the whole process

Also, the Guidance Memo makes no mention of how non-English speaking populations will be notified and “meaningfully involve[d]” in the permitting process.  DEQ should require the permit applicant to provide notification in languages other than English where a landfill is sited in an environmental justice community. Lastly, DEQ should consult EPA’s Public Participation Guide, available at https://www.epa.gov/international-cooperation/public-participation-guide. This Guide provides a detailed explanation of how communities should be engaged and how “meaningful involvement” can be achieved. 

The guidance is also silent on how the Director will ensure compliance with the “fair treatment” requirements of the EJ Act and DEQ’s enabling statute. The term “fair treatment” is defined as “the equitable consideration of all people whereby no group of people bears a disproportionate share of any negative environmental consequence resulting from an industrial, governmental, or commercial operation, program, or policy.” VA Code §2.2-234. The Guidance should explicitly state that the Director will investigate and make a finding as to whether the permit will result in any “disproportionate share of any negative environmental consequence” from the activity sought to be permitted, and that the Director will deny a permit where such disproportionate negative environmental consequences are present. Such a finding involves more than determining whether the proposed facility complies with the requirements of the VSWMR. See, Friends of Buckingham v. State Air Pollution Control Bd., 947 F.3d 68, 93 (4th Cir. 2020) (“blindly relying on ambient air standards is not a sufficiently searching analysis of air quality standards for an EJ community.”) DEQ should require the applicant to demonstrate the permitted activity both complies with the VSWMR and that the activity sought to be permitted does not cause any disproportionate share of negative environmental consequences for landfills affecting environmental justice or fenceline communities.

Regarding the need for additional capacity, the Guidance should require the applicant to provide information on any cost-effective diversion approaches in the area to be served by the proposed landfill, since there is a need to prove an adequate demonstration of need and public interest. It would be good to know what are the practices that the permit applicant is putting in place to divert waste from the landfill. A few examples of these practices: diverting organic waste from landscaping companies and other large producers to composting or mulching operations could reduce landfilling by 20-40%. These practices are often cheaper and less environmentally harmful than expanding a landfill.

Virginia has approached the environmental review process for landfills, along with all other permits, by dividing up impactful decisions into categories such as "air," "water," and "waste." This implies that somehow a landfill permit can be assessed as if it has no impact on air and water, or that the emissions from a gas plant don't compound with emissions from a landfill right up the street (for an example, Chickahominy Power being permitted less than two miles from the WM landfill facility in Charles City).  Individual permits are approved (almost always) without investigating whether they have broader implications--decision making at the DEQ is outrageously siloed, as if we could make decisions about the impacts of a single permit review (for example, the Ingenco facility in Charles City applying for a leachate concentrator) without looking at the broader implications of that particular permit, or measuring the compounding impacts of a series of permit decisions. Further, it is clear that the DEQ spends significant amounts of time and energy addressing concerns and needs of applicants, when the environmentally just thing to do would be to ensure that the needs and concerns of community members receive equal attention. In order to meet the expectation of the Environmental Justice Act, it is essential that the DEQ begin to approach permit decisions in a more comprehensive manner, and consult with communities as equal partners in decision making as they do industry.