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Public Participation in Air Permitting

Air Emissions
by Kelly Lagana
"Recently, the U.S. EPA announced that it was nearing closure on a remarkably complicated 15-year effort to reach agreement with Texas on the state’s procedures for public notification and participation in the issuance of most air quality permits needed by sources of air pollution. Under the Clean Air Act, such procedures must be included in state implementation plans (SIPs) and approved by the EPA."

There have been many challenges confronting the EPA and Texas–challenges that are also faced by other large states–in reaching common ground regarding the level of public participation in the air permitting process and how that level is to be achieved.

For example, air permitting can cover a wide range of both major actions that require public participation and minor actions or revisions that may not; public notices about permits and changes to permits must be provided in specific time frames; the permitting authority and sometimes the permit applicant must hold public meetings for certain permit activities; the state agency must solicit public response on certain elements of proposed permits; and the state must publicly respond to substantive public comments.

The point is that establishing a complete public participation program that meets EPA’s approval is no small matter for state and local air agencies. This is particularly true for states such as Texas that traditionally extend themselves to a great degree to accommodate the wishes of industry, such as expedited permitting.


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To provide a clearer picture of what public participation programs must include, we summarize the requirements for public participation states must comply with in their air quality permitting as specified at 40 CFR 51.161 (Review of New Sources and Modifications) and 40 CFR 1.166(q) (Prevention of Significant Deterioration of Air Quality).

Review of New Sources and Modifications

• The state or local agency must provide opportunity for public comment on information submitted by permit applicants. The public information must include the agency’s analysis of the effect of construction or modification on ambient air quality as well as the agency’s proposed approval or disapproval.

• Opportunity for public comment must include availability for public inspection in at least one location in the area affected of the information submitted by the applicant and the state/local agency’s analysis of the effect on air quality; a 30-day period for submittal of public comment; and a notice by prominent advertisement in the affected area of the location of the source information and the analysis.
• Alternative comment periods must be allowed when regulatory conflicts exist under the standard 30-day comment period.

• The state/local agency must provide copies of the public notice to the EPA and regulatory bodies with jurisdiction in the region where the new or modified installation will be located.


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Prevention of Significant Deterioration of Air Quality

• The reviewing authority must notify all applicants within a specified time period as to the completeness of the permit application or any deficiency.

• Within 1 year after receipt of a complete application, the reviewing authority must:

-Make a preliminary determination about whether construction should be approved, approved with conditions, or disapproved.

-Make available in at least one location in each region in which the proposed source would be constructed a copy of all materials the applicant submitted, a copy of the preliminary determination, and a copy or summary of any other materials considered in making the preliminary determination.

-Notify the public by advertisement in a newspaper of general circulation in each region in which the proposed source would be constructed of the application, the preliminary determination, the degree of increment consumption that is expected from the source or modification, and of the opportunity for comment at a public hearing as well as written public comment.

-Send a copy of the notice of public comment to the applicant, the EPA, and officials and agencies having cognizance over the location where the proposed construction would occur.

-Provide opportunity for a public hearing for interested persons to appear, and submit written or oral comments on the air quality impact of the proposed installation.

-Consider all written comments submitted within a time specified in the notice of public comment and all comments received at any public hearing(s) in making a final decision on the approvability of the application. All comments must be made available for public inspection.

-Make a final determination on whether construction should be approved, approved with conditions, or disapproved.

-Notify the applicant in writing of the final determination and make such notification available for public inspection.

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