Lakshmi Fjord, Ph.D. / 420 Altamont St., Charlottesville, VA / lakshmi.fjord@gmail.com

August 20, 2021

Public Participation Guidelines Public Comment, submitted by email to DEQ (melissa.porterfield@deq.virginia.gov) and to each Board at their separate Virginia Regulatory Town Hall sites.  

For the last seven years, I have worked as a fulltime volunteer anthropologist using my professional expertise to work with 5 environmental justice communities in Virginia starting with Union Hill in 2014, to do community participatory site-based evidence research. That should have been done under state and federal laws and statutes by VDEQ for Virginia toxic pollution site applications and FERC and Army Corps of Engineers for site environmental and EJ reviews for federal applications – as required public participatory engagement with site investigations.

DEQ persists in not doing site investigations as the First Step for all toxic polluting permit processes, which even if not mandated, would the most economical from a DEQ budgetary perspective to identify site issues immediately. Instead, DEQ spends thousands of collective staff days (3 years in Dominion’s Virginia ACP air permit case) paid by taxpayers to over and over revise toxic polluting permits to support developers’ odds of approval by the Citizen Boards. As evidence for Guidelines reforms:  

1. In Sept. 2015, right after ACP filed its application with FERC, Friends of Buckingham sent 51 letters to DEQ requesting a site visit to the 68.5-acre site ACP chose over their prior purchased 147-acre, sparsely populated, white majority site also on the Transo easement. DEQ ignored and never responded to these collective requests. Instead, DEQ’s required “site visit” to the ACP compressor station site was also their required presence at its air permit hearing at Buckingham Middle School and last day of public comments, Sept. 11, 2018.
2. At the small community meeting held before the hearing, Mike Dowd informed us that the ACP air permit had been “failed” by DEQ three times, and they revised it to become the permit they approved. He also informed us that any evidence related to environmental justice findings would not be read or summarized by DEQ comment readers for the Air Board as EJ data was not “technical” evidence.

Clearly, we ignored his erroneous restrictions as we were quite familiar with the Air Board’s statutory responsibilities to do site suitability review and to weigh the costs to the impacted people with the benefits of the toxic polluting operations. As the 4^th Circuit Court’s Opinion to overturn ACP air permit reveals, 3 years of DEQ staff time to revise Dominion’s air permit and to deny our community EJ evidence VS $0 spent for the site community facing the largest compressor station in the U.S., a metering and regulatory station, and ACP’s intersection with 3 existing Transco pipelines = a total loss to Virginia.  

I presently collaborate with Union Hill on nearby siting of open pit gold mining, Pine Grove Community and History Project on the Green Ridge Waste Recycling mega-landfill, with Brown Grove Preservation on the Wegman’s distribution center, with C5 Group in Charles City County on Waste Management 400% expansion to encompass the remains of US Colored Troops who fell at St. Mary Church Battlefield and Chickahominy gas plant and pipeline, and with the Pittsylvania County NAACP to stop the MVP-Southgate Lambert compressor station. I have made 44 expert technical comments in local, federal, and state permits for the ACP, MVP, on the other EJ community sites issues listed above; on FERC public participation, and today on DEQ and Citizen Boards public participation.

Guidelines Reforms

1. Public Participation is First Step in permit processes by DEQ

            In their role as toxic polluting permit reviewers, advisors about permit improvements, and technical specifications, permit writers and summarizers of public comments given in permit comment periods for the Citizen Boards who will deny or approve these permits, DEQ must prioritize as their first step, a site investigation that can only be accurate as the technical details of turbines used, for instance, if they are done in collaboration with the cultural experts with detailed knowledge of the impacted people, the site history and cultural practices related to land uses, topography, hydrogeological, air, water, and soil conditions, and economic uses of surrounding land for business, growing food, recreation and more.

Site investigations to be evidentiary and fruitful must then be primarily time by DEQ spent listening and recording the community site evidence related by most impacted community members, local religious and secular leaders, principals and teachers of public schools, academic and other cultural experts on the community and its history, local historic preservation groups and Dept. of Historic Resources regional field representatives, civic organizations, small business owners, for just a few examples. Every hour of time spend learning from the site community is time and money saving for DEQ in the long permit process run.

Site investigations before proceeding with the analyzing the details of the application, prepare staff to consider the impacts on that community and its cultural and physical environment when they read the planned activities and operations at this site and the technical details about the sources of toxic pollution.

2. Inclusive Public Participation information meetings by DEQ

Because this section has been described in detail in the SKEO report and in numerous public comments to you all, the only thing I would add to requirements suggested is that DEQ permit budgetary funds be put aside for two consultant fees for site communities. One would be a local community consultant to write cultural appropriate, language consistent newsletters to be sent to all households within a 5-mile radius of the proposed site. If telephone or email addresses are available to follow up with contacts by these means.

To reiterate emphases given elsewhere: if DEQ uses inclusive design principles to guide its actions, then planning for certain populations’ needs will grant access to everyone: that is, plan for people with vision, hearing and speaking impairments, people who use signed languages and people for whom English is a 2^nd or 3^rd language; low-literacy populations, people living in internet deserts; who live without computers and smart phones; people living in areas of low-cell coverage; who have only one access route from homes; whose postal service is hampered by topography, flooding, and so on.

3. Community participatory action research as public participation  

All of the community-based research on household demographics, pre-existing health conditions, family heritage at proposed new source pollution sites, including family burials and unmarked burials, historic schools and churches, businesses, and recreation uses of land -- are in fact site investigations. This community evidence needs to be evaluated using the same scientific peer review for its methods and findings -- as must developer-generated data that has been solely privileged by DEQ to date.

The persistence of DEQ denying historic Free Black built or historic Appalachian community EJ data for every one of the infrastructure projects that I collaborate to provide in permit public comments must change. DEQ must no longer erase EJ data from its permit summaries. DEQ must no longer erase the PM2.5 emissions data for a project’s operational activities, such as for Wegman’s thousands of vehicular traffic roundtrips, if these operations are requirements for the project at this site. DEQ stated that this information was not “technical data” needed for the Wegman’s water permit. DEQ cherry-picking of operations evidence must stop.

ACP lost all 8 of its approved permits on appeals because the permit decision-makers DID NOT consider the expert technical data given in public comments that countered ACP-generated data that contained key omissions or misinformation.

DEQ needs to undertake major reform about how they and the Citizen Boards evaluate what constitutes “replicable scientific research methods and findings” and their almost complete lack of such research methods used in applicant-generated data about the site community, its history, its health impacts, and most especially, environmental scientific expertise from research studies of health impacts of its operational emissions on air, water, and soil shared with people, animals and drinking water sources for towns and regions.

4. DEQ staff must read the public comments for the toxic polluting project whose permit they are working on, to glean the public participatory evidence given about the site, such as the community evidence, and other data listed above – as part of scientific review of technical information needed for their permit writers.

Public comments are integral parts of public participation, yet DEQ does not read the ones made to federal regulatory agencies, such as FERC or Army Corps of Engineers that precede Virginia air, water, and waste permits. When these data and evidence have been granted great weight by US Courts of Appeal, DEQ must consider these as carefully as the latest turbine data.

5. DEQ's uses of EJ Screen and other software tools used to uncover demographic evidence based on census tract data must be peer-reviewed by outside evaluators and compared alongside demographic findings made through public participation.  

DEQ did not accept as credible the Union Hill community study evidence for the air permit. For their demographic information submitted for the site, DEQ used EJ SCREEN, a proprietary software tool that uses census tract data. We learned that DEQ excised key parts of the EJScreen findings which ultimately manipulated the demographic information DEQ gave to the Air Board about the site community. Dr. Ryan Emanuel, North Carolina State University environmental scientist, peer reviewed DEQ’s submission EJ Screen data for the compressor station site and did the same EJSCREEN himself. He found that DEQ had submitted data without all 11 summary pages of EJ indices of vulnerability. Which he found located between 10% and 30% of the highest vulnerability in the state for this site when compared to the state averages – even with extremely poor census tract data. 

6. Water and Air Control Board hearings must be entirely reformed

I waited for seven hours online to make my technical comment for the Wegman’s Water Permit, only to be told that in order to spare the all-volunteer Water Board members, I needed to give up my comment time. As a volunteer expert myself, that sort of circumstance must no longer take place.

The stress this invented time pressure causes is entirely DEQ-created and must stop. These are constructed barriers to the public participation needed to get decision-makers the evidence they need to deny or approve permits:

• DEQ must not take hours to read to participants and the Boards their summary of comments at the beginning of the hearing. It is unlikely that Board members have not read these.
• Commenters have read them in order to change our comments to fight back against DEQ’s restrictions on what is summarized or what we are allowed to comment on.  

DEQ dictating what evidence is allowed or not led to why DEQ lost our lawsuit, BUT only because we did give evidence they said we could not.

• Therefore, the public comment hearing must be scheduled based on the number of commenters who made written comments. Each must be allowed their allotted time.  
• It was stated erroneously that the Water Board does not have the authority to extend their hearing or public comment periods: PROOF: THE AIR BOARD DID FOR ACP AIR PERMIT, when they first scheduled the air permit hearing for two days, Nov. 8-9, 2018, when a Board member asked for and they voted on a postponement until Dec. 18, when they approved 3 more weeks of public comments on my Union Hill Community Research Report and DEQ’s EJ Screen and Dominion’s EJ Screen demographics. Then, made their decision on Jan. 8, 2019 to approve. Overturned on Jan. 7, 2020. 

7. DEQ must be transparent and give accounting for staff time given to public participation activities directly compared with staff time given applicant activities staff time.

All DEQ staff time on permits needs to be accounted for and made transparent in order to reform the inequity between taxpayer time spent to support applicants and staff time spent on public participatory engagement activities. Both sets of time are required information needed for permit analyses and writing. Thus, under public participation engagement is project site investigation, public comment reading to give evidence to permit analyzers and writers, and to include all site-related evidence in all permit comment summaries as “technical information needed for permits.” This then would be compared -- as ledger-style accounting -- with staff time spent with the developer, its staff and consultants, DEQ’s research on all project technical aspects; including research on operational activities that will impact the community and environment, and writing.

Conclusion

We, the concerned citizens of Virginia, hope DEQ and all the Citizen Boards will embrace the statutory responsibilities given DEQ and Air Board, as adjudicated by the US Court of Appeals 4^th Circuit, to conduct your own site suitability, site-specific environmental impact and environmental justice reviews and not rely on industry manipulated data peer reviewed and found inaccurate.

In the final permit analysis, signed by DEQ officials on January 9, 2019, the only issues that DEQ considered as relevant to “Site Suitability” of the compressor station in Union Hill were: (1) an October 2017 site evaluation, which ignored the local residential population; (2) the SUP issued by Buckingham County; and (3) projected compliance with ambient air quality standards.  J.A. 2993. This evidence was incomplete, improper, and rendered unreasonable by-subsequent evidence…[4^th Ct. Decision, P, 45-46].

We consider it imperative toward shared goals of racial equity and environmental justice, to quickly act against climate change -- in which the siting of toxic polluting sources in EJ communities is a root driver -- and an end to the disproportionate health disparities experienced by Black and Brown populations because of the persistence in siting choices near or in their communities. The reform of DEQ and Citizen Boards public participation guidelines, if made into daily practice and budgetary realities, will shift that needle toward treating Virginia citizens, their lands and communities, their knowledge and cultures, with respect equal to that now shown as deference toward toxic polluting corporate developers projects and public relations claims about jobs and economic growth.  

Respectfully submitted,

Lakshmi Fjord

Scholar-in-Residence, Dept. of Anthropology, University of Virginia

Union Hill Freedmen Family Research Group/Friends of Buckingham

Pine Grove Community and History Project

Brown Grove Preservation Group

Climate Ambassador, Physicians for Social Responsibility

Founder, convener, Cvlle Peoples’ Tribunal on the Environmental Justice

  Impacts of Fracked Gas – ACP and MVP