Ideal permitting process

[Glenn Landers <glanders@stratos.net>]

I were to try to design an ideal permitting process for significant actions,  the elements that I think I would look for would be these:

1. Proactive education of the public about permitting processes and the issues that can be dealt with through permits. A model for this would be the Title V trainings that EPA has done across the country. I think having basic trainings that prepare citizens in a general way leads to higher quality participation on when specific permits of interest come up.

2. Early notice and availability of documents. There should be public notice as soon as there is a complete application, with a copy of the application (and later the draft permit) available to the public for free and the facility file locally available for public inspection. Copies of documents not provided free should be available for a reasonabe cost, including an option to bring your own copier the agency office. Applications, and permits, should also be available electronically on the internet.

3. Citizens should be able to challange a confidentiality claim as soon as it is made. Whether a challenge is made prior to the comment period or during it, everything should stop until the claim is ruled on by the permitting authority. 

4. Notice should be complete, with the name of the facility, location (not just a mailing address), an agency contact person who can provide information about the permit, the type of permit and the issues involved, information about submitting comments, how to call for a hearing, the end of the comment period, information about how to ask for an extension of the comment period, and the necessity of submitting comments to establish standing for appeals. 

5. The permitting agency should attempt to notify all parties that might be interested, including those who have requested notice and those who have complained about the facility or environmental quality in the area. Local government entities, like city and township hall and health districts, should be notified and requested to provide names of interested parties they might be aware of.

6. The permitting authority should provide for a hearing if requested. The agency should not require an explanation of why the hearing is requested, nor should there be a minimum number of requests necessary before a hearing is scheduled. The comment period should remain open at least a week after the hearing, to allow attendees to evaluate the information at the hearing and to develop further comments.

7. Failure to provide information in a timely manner (such as delaying access to files more than two days during a comment period) or failure of any other public participation requirements should cause the comment period to be extended. If a state agency with delegated authority fails to extend a comment period where there was a defect in public participation, the U.S. EPA should require a reopenning.

8. Any permit that goes through changes after the comment period ends which significantly alters the permit in a manner that the public could not reasonably anticipate should be resubmitted to the public for comment.

9. The state should respond to all comments in writing, as well as provide information about appeal processes to citizens.

10. The facility should not have a sperate comment period of their own after the public comment period ends. Ohio, and I believe some other states, provide such a period for Title V air pollution permit.  This creates a possibility that a facility can ask for and get changes that weaken the permit after the public comment period has ended. While citizens may be able to appeal this decision, it creates an large burden for the public.

11. Agencies should not be allowed to unreasonably delay action without providing a new comment period. A Title V air operating permit, for instance, that has not been acted on for two years after the comment period ended may have monitoring requirements that are no longer appropriate, as technology for monitoring may have changed. U.S. EPA should object to any permit that has languished at the permitting authority for an unreasonable amount of time after the comment ended.

12. All rules applicable to the permit should be identified in the permit and those rules should be locally available to citizens. 

13. If the permitting authority used information sources outside the agency to develop the permit, like for instance information on a control manufacturer's web page, this information should be provided with the draft permit. Hardcopies of the information should be placed in the file.

14. There would be a pro-active provision for environmental justice claims made during the permitting process. My understanding is that the way things currently work, an EJ claim is supposed to be made after the permit is issued and it will not stay the permit. It makes better sense to me to raise and deal with those concerns as early as possible and before the permit is issued if possible.