1 Public Involvement, Access, and Petitions DJ Law EPA Region 8

2 Overview Where to find documents Opportunities to be involved ◦ Public comment period ◦ Public hearing Petitions

3 Records – What are they? Permit Record includes all documents used to create permit ◦ Application ◦ Additional Submissions / App. Modifications ◦ Emission Factor documents (Ap-42) ◦ Performance Test Data ◦ Substantial Communication

4 Records – How to Get Them Public Notice Permit Record on file State/Local/Federal Open Records Act ◦ FOIA Permitting Authority website ◦ Typically draft permit and statement of basis Visit Permit Authority

5 Being Involved – First Step Every permit will have public comment period ◦ Minor NSR permitting -30 days ◦ PSD and Non-NSR – 30 days ◦ Title V – 30 day public, 45 day EPA Public Comment Period must be published ◦ Typically in local newspaper ◦ Can be other methods…websites, radio

6 How to Comment Most Important Rule: “Do Not Be Late” ◦ If in doubt, call permit authority ◦ Send certified ◦ may not be accepted Second Most Important Rule “Maintain Focus” ◦ Point out Concern in Permit – use specific page/paragraph ◦ “One issue, One paragraph” ◦ Site underlying regulatory reason permit is in error ◦ Site supporting determinations if available Try to avoid “Not In My Backyard” arguments

7 Being Involved – Second Step Every Public Comment Period has opportunity to request Public Hearing Public Hearing requires Public Notice ◦ Typically 30 days from Public Notice ◦ Verbal and written comments taken Permitting Authority may publish permit notice and hearing notice at same time ◦ Typically done to save time

8 Being Involved – Backup Step Permitting Authority may republish Public Notice ◦ Second Notice usually only on parts of permit that were changed. ◦ Not always necessary ◦ Same chances to request a Hearing Permit typically goes final after this

9 Being Involved – Third Step Path Diverges for PSD/Non-NSR and Title V ◦ State PSD/Non-NSR enter state court system ◦ Federal PSD/Non-NSR go to Environmental Appeals Board (EAB) State Issued Title V permits can be appealed to EPA

10 Being Involved - Petitions What is a Petition? ◦ Formal request to EPA to rescind a Title V permit Petitions are submitted to EPA within 60 days of issuance of final permit

11 How to Petition Most Important Rule: “Do Not Be Late!” ◦ Once again, one day over is one day too many Second Most Important Rule: “Issues must have Standing” ◦ Issues raised in petition must have been raised in comment period. Maybe not by you, but by someone who commented ◦ State must have opportunity to comment on issue prior to entering into Petition process

12 How to Petition (cont.) Third Most Important Rule: “Maintain Focus” ◦ Point out Concern in Permit – use specific page/paragraph ◦ “One issue, One paragraph” ◦ Site underlying regulatory reason permit is in error ◦ Site supporting determinations if available, in particular site why state’s response is inadequate

13 How to Petition (cont.) Review previous Petitions and Orders to see if issue has been addressed before ◦ b/petitiondb.htm b/petitiondb.htm Document, Document, Document ◦ All records discussed before, plus any responses from permitting agency based on comments

14 Unique Tribal Opportunities Tribal Consultation Tribal Air Coordinator/Tribal Assistance Program Both useful during all phases of permitting, but can be much more useful during pre-construction phase, particularly with new industries

15 Key Points to Remember Learn the Process ◦ Doesn’t matter if it is construction, minor NSR, PSD, Non-NSR—process of commenting is more important Pay attention to time ◦ Whole process requires your involvement from beginning Be Precise and Concise ◦ Support the issues you raise. Five-page comment letter supporting one issue is better than one-page comment letter supporting five issues

16 Final Point The little guy can make a difference ◦ The public is a key component to permitting process ◦ There is zero requirement to have legal experience. (But it does help.) ◦ Learn from previous experience. A previous denial does not mean a denial every time