Whether the public participation provisions are sufficiently informative and inclusive of the public, or whether more inclusive public participation models such as that used for RCRA TSD facilities, which include informal pre-application public meetings and local repositories of permitting files, should be employed.
KRC believes, after 23 years of advising citizen groups and community organizations on environmental matters, that early, continuous, and meaningful public involvement in permitting and compliance activities is the preferable to the classic “newspaper notice of draft permit – 30 day comment period” approach formerly embodied in so many regulatory programs.
Unfortunately, those most directly affected by decisions made regarding regulatory compliance under STAR do not have a timely opportunity to be heard concerning compliance demonstrations (including eligibility for de minimis exemption). Among the decisions that are not subject to public scrutiny are the acceptance by the agency of the accuracy and basis of an actual emissions inventory; the representation by a source that certain emissions fall within de minimis categories; and the review and approval of a demonstration of environmental acceptability.
It is only where a facility cannot by its own determination meet the environmental acceptability goal and seeks to exceed or modify that goal, or where multiple facilities exceed the 10 in a million goal, that public involvement occurs:
* Under Regulation 5.21, Section 2.3.1 if an owner/operator of a new or modified process requests to exceed one or more Environmental Acceptability goals; or 2.6.1 if modification to an EA goal is sought for a process or process equipment;
* Under 5.21, prior to approval of a compliance plan for sources requesting to modify an EA goal;
* Under 5.21 Section 5, for those requesting notice of the receipt of a request for modification of an EA goal and of the public involvement opportunities.
* Under 5.21 Section 4.8 for multiple facility emissions exceeding 10 in a million.
KRC believes that public participation in the review of facility compliance should be improved in order to build better working relationships and to increase trust between facilities and their host communities through better communication. Using the successful model of enhanced public participation for hazardous waste facilities under the Resource Conservation and Recovery Act, KRC suggests that these enhancements to public participation procedures:
* for filings by sources asserting that the emissions from the facility meet environmental acceptability requirements, the agency will at the time of receipt of an administratively complete filing, provide web-based notice (by posting and by email to those who have requested same) and by first-class mail notice to first, second and third-tier property owners (including commercial and industrial, and excluding highways and roads), of the receipt of the application for approval of a demonstration of environmental acceptability, and inviting a 30-day comment period with a with an informal public meeting scheduled in the evening at a convenient location, to be canceled unless requested within 5 days of the meeting. Comments received will be provided written statement of consideration.
* for those sources that make a filing seeking a determination of de minimis status, the agency shall maintain a web-based listing of those sources and the nature of the emissions and basis for claimed exemption, and the status of that claim.
KRC proposes one of two approaches to allowing public review and notice of de minimis claims –
a. Identification by the agency of those claims based on categorical exemptions, which shall be subject to web posting without advance public participation; and
b. Notification of first and second-tier property owners of the request for an agency determination of de minimis status, with opportunity for submittal of written comment and opportunity for hearing if requested by five first or second tier property owners; or
c. No advance opportunity for comment or hearing, but notice of issuance of a determination (which could be grouped for purposes of ease of notice) and mailed to first and second-tier property owners with opportunity to review the file and to request agency to reconsider determination of de minimis status.
These approaches are minimum public involvement provisions, less than what KRC believes are optimal, but providing at least a modicum of timely involvement. Early engagement of the facility with the surrounding neighborhood and community will result in early identification of particular issues of concern, better dialogue and understanding of plant processes and actions to reduce air toxics, and greater confidence in agency decisions concerning program compliance.
These suggestions are marginally consistent with the Final EPA Title VI Public Involvement Guidance for EPA Assistance recipients Administering Environmental Permitting Programs (Recipient Guidance), 71 FR 14207. As a recipient agency, APCD is obligated in all of its programs to comply with Title VI of the Civil Rights Act of 1964 and with EPA’s requirements with respect to environmental justice. The guidance offers suggestions on how to enhance public involvement, grounded in the core premise that “public involvement should be an integral part of the permit decisionmaking process to help the public understand and assess how issues affect the communities.” 71 FR 14210.
As noted by EPA, “[p]ublic involvement done early and often, is essential for the success of any permitting program” Likewise, the success of the STAR program and creation of a more healthy relationship, on many levels, between sources of air toxics and the community-at-large, would be greatly enhanced by providing for direct communication with the neighborhoods before the STAR compliance process begins, and for review and comment once the demonstrations are filed.