Subject: RE: What stakeholders/citizens need to participate
In my mind, there are some key elements to effective public participation.
1. First, awareness of the opportunity. Public notice is notoriously bad, usually a small legal notice in a newspaper of general circulation in the area of the project. This could be a tiny publication near a facility that pollutes all the way from Ohio to the East Coast. Libraries might help with this problem, asuming the information is avaibable, by having a staff person who is adept at finding out about regulatory actions that affect the community, state, and region. There could also be displays and/or working area dedicated to informing the community about regulatory processes and opportunities for involvement. EPA could help this process by making sure necessary information is available in accessible form - permits and applications, notices that can be accessed by zip code, county or state, etc. - facilitate easy access.
2. There has to be an understanding of what are the issues that are pertinent, and access to the information that EPA will use in making its decision.
There have been some great strides here by EPA in the area of air pollution. The searchable databases available through TTN are very good and could be used as a model. The RACT/BACT/LAER clearinghouse is very good, though decisions about what constitutes an appropriate control device is constantly changing (Citizens should have information about what other sources of information, outside the agency, will be used in decisionmaking, like for instance the sources of information about control devices that agency permit reviewers go to). I use the searchable Title V and NSR guidance documents all the time. The NSR Workbook, though not written for citizens, is invaluable. At the regional level, Region 5 has their correspondence about air issues online.
I should add a caveat here that information about relevancy should be not be too restrictive. The agency should stress that any argument must end in some regulatory basis for action. Instead of saying "don't talk about water at an air hearing", the agency should say "a water issue would be relevant in to an air permit if you can show the air is causing a cross media impact". Case studies of where citizens used public participation opportunities to creatively challenge agency decisions would be helpful here. These should be available at libraries.
3. Early notice, access to information, and procedures for participations before the comment period starts are important. Citizens need hear about and have access to information as soon as there is an application deemed complete.
Every agency type and enviro I know who works on air permitting says that the time to start working and issue is before the comment period begins. The application contains valuable information that you can start working on right away. This is especially necessary when dealing with a large source. You just aren't going to get it done without a headstart - thirty days goes by in no time.
Citizens also need some means of input during the pre-draft phase. I've seen an instance where a citizens' group had to wait until the comment period was open to challenge a claim of confidential business information on the part of the permittee. This takes considerably longer than 30 days to be decided, so they were deprived of information that maybe they should have had available to them during the comment period.
I've also seen cases where someone reviewing an application could have saved everyone a lot of time and energy because the permit could not have been granted as applied for. For instance, I've seen a facility that was asking for a modification to be considered minor, based on credits for voluntery reductions that were too old to use. This was brought up during the comment period and the permit was withdrawn. More than a year was wasted by the company and the modification still has not taken place.
I'd also recommend that EPA develop rules that allow hearings before a comment period begins, so long as there is sufficient interest, or in case an issue raised is great enough to warrant some early action. The system should be more pro-active and more sensitive to providing opportunities for public input.
For instance, the last time I looked, EPA seemed to be suggesting that the appropriate time for raising an environmental justice issue is after the permit is issued. While I think it makes sense to allow permit issuance to be challenged after the fact on the basis of EJ, it makes sense to have the issue raised as early as possible.
There should probably be (perhaps there are and I am not aware of them) proceedures for EPA to have hearings or meetings outside the usual participation processes. Communities need some means of getting together with EPA and saying "here's the list of our concerns, what can you help us with". Industry has great access to decision makers. I even think that national environmental groups have some good access, but the front line communities have very little.
3. Citizens need to understand who are all the players and what their roles are. They also need to know who are the key decisionmakers and what are appeals processes.
I'm often contacted by a community group that is concentrating all their fire on a state agency that is ignoring federal rules. They might, for instance, have a problem with a major facility that is being restarted after years of being shutdown, with the state pretending that it has been in operation all along. The facility should be subject to federal prevention of significant deterioration rules. In this case, they should know that the U.S. EPA has some authority. They should know that they can ask the Region to apply pressure to the state, that tey might be able to appeal the decision to the Environmental Appeals Board, and that they might be able to petition the U.S. EPA to remove delegated authority for federal new source review.
I've had instances where best available control technology requirements were being ignored by the state, but a letter to the state agency, copied to the Region and followed up by phone calls, has caused a sudden reversal.
This is, again, an area where industry has better access. They have resources to find all the key pressure points and use them. Citizens deserve that same type of access.
4. I think that citizen participation can be greatly enhanced by good how-to information and check lists. There has been a lot of work done on this with regard to Title V. NYPIRG has a good citizens guide to reviewing Title V permits. Some Regional webpages also have good information available.
THe thing is to get beyond the simple "guide-to" and get to the "what to look for." With this information, citizens can do some useful participation in regulatory processes, even when constrained to a 30 day comment period.
Permits offer great examples of this. I'll give a few:
Vague language is something anyone can review a permit for. It the meaning of something is not clear, or is ill-defined, than it's a problem. I don't know what a permit means when it says that equipment should only be operated by "authorized" personnel. Does it mean "liscenced" or "certified". If it's not clear to me, how will a judge knwo what it means?
In some situations, there are key things to check. If a facility is claiming a change will be a minor modification, on the basis of credits for past voluntary reductions, you need to find out how long ago those reductions took place.
States operating under a delegated authority from EPA have to include some standard conditions that are to be in every permit. It's not unusual for one or two to be missing, or for changes to have been made to the language, altering the meaning.
Formulas in permits are usually taken from some reference document. It's scary to think about, but a common error I see in permits is that those formulas get changed in the process. If a permit gives a formula that it says is from some section of AP-42, my advice is go to AP-42 and check it.
look for contraditory language. A recent permit I looked at said violations would be determined based on a monthly rolling average. The next page said that, for the same pollutant and the same equipment, violations would be determined based on a daily rolling average.
5. Citizens need something to take home. No one is going to camp at the library. Costs of reproducing application and permits can be high. Some documents must be available to citizens for free.
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