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U.S. EPA Takes Exception to PADEP Air Quality Permitting Streamlining Provision

Posted: April 19th, 2012

Author: All4 Staff 

Back in 2008 the Pennsylvania Department of Environmental Protection (PADEP) adopted amendments to its “Plan Approval” regulations codified at 25 Pa. Code 127, Subchapter B, adding provisions intended to streamline the process for certain air permitting actions in Pennsylvania.  In Pennsylvania, a Plan Approval is a permit that authorizes construction, installation, or modification of any air pollution source and subsequent temporary operation to assure that equipment is operating properly (i.e., a “shakedown” period).  Notice of the adoption of these amendments was published by PADEP in the Pennsylvania Bulletin on May 24, 2008

These air quality permitting streamlining amendments adopted by PADEP included: (1) an increase to the duration of permissible extensions of the “shakedown” period; (2) stipulation of PADEP’s obligations with respect to determining whether a submitted application is administratively complete and notifying the applicant of that decision; and (3) a clarification of where notices of public hearings on applications are to be published.  More importantly, the amendments also included establishing separate and different public notice requirements for major and minor permitting actions, replacing the prior public notice requirements that were the same for both major and minor actions.  A key streamlining feature of the new public notice requirements for minor permitting actions is the provision for PADEP to publish a single “notice of receipt and intent to issue” in the Pennsylvania Bulletin upon receipt of a complete application.  Prior to the permitting streamlining amendments of 2008, PADEP would generally publish two notices for all Plan Approval actions; one upon receipt of an application, and one of intent to issue a proposed plan approval.  Each of these notices were followed by a comment period.  This has remained unchanged for major permitting actions.  But under the new requirements for minor actions, PADEP can now issue the Plan Approval after a single comment period that follows a “notice of receipt and intent to issue” without further notice, unless significant public comments are received.  This provides the real potential for significantly shortening the time an applicant has to wait to start construction of a project after submitting an application, allowing much quicker implementation of improvements and realization of the associated benefits.

Of course, any time a State makes changes to its air quality permitting program, the State is required to submit a State Implementation Plan (SIP) revision to U.S. EPA for approval.  U.S. EPA reviews such SIP revisions to assure that they meet related Federal requirements.  PADEP submitted a SIP revision pertaining to the 2008 air quality permitting streamlining amendments to U.S. EPA on April 14, 2009.  On April 12, 2012 (just shy of 3 years later) U.S. EPA published a notice in the Federal Register proposing a “limited” approval of PADEP’s SIP revision.  The proposed approval is “limited” because U.S. EPA is taking exception to a detail contained in PADEP’s new provision for publishing a single “notice of receipt and intent to issue” for minor permitting actions.  In adding the new single notice provision, PADEP stipulated that the information required to be included in a “notice of receipt and intent to issue” was: (1) the name and address of the applicant and the location of the source; (2) a brief discussion of the proposed action including a description of the source, the control technology, the conditions being placed in the permit, and the type and quantity of air contaminants being emitted, as well as a point of contact at PADEP; and (3) the statement that a person may oppose the proposed Plan Approval by filing a written protest with the appropriate PADEP Regional Office.  In the April 12, 2012 proposed action, U.S. EPA says that this isn’t good enough and therefore this portion of the SIP revision cannot be approved.  U.S. EPA cites the Federal requirements with regard to public availability of information at 40 CFR 51.161(a) which require that “[t]he public information must include the agency’s analysis of the effect of construction or modification on ambient air quality, including the agency’s proposed approval or disapproval.”  Since PADEP’s amendments do not explicitly require that the agency’s analysis be included in the “notice of receipt and intent to issue” or that it be made available for public inspection in at least one location in accordance with 40 CFR 51.161(b)(1), U.S. EPA is proposing to withhold its approval of this portion of PADEP’s SIP revision pertaining to the 2008 air quality permitting streamlining amendments.  To obtain full approval, U.S. EPA proposes that PADEP must adopt in its public notice requirements for minor permitting actions an explicit requirement that the agency’s analysis be included in the information provided to the public for comment as well as the requirement that the analysis be made available for public inspection, and then submit those changes to U.S. EPA in another SIP revision.

Logically, the streamlining provided by PADEP’s amendments that allow for publishing a single “notice of receipt and intent to issue” for a minor permitting action comes, in part, from PADEP being able to complete part of its analysis of an application while the public comment period is running.  Realistically, it may not be possible for PADEP to complete its analysis and make it available along with a “notice of receipt and intent to issue” published upon receipt of a complete application.  U.S. EPA’s exception to this particular streamlining provision is currently only proposed, and U.S. EPA is accepting comments on it until May 14, 2012.  However, if it becomes final as it is proposed, and PADEP must return to a longer timeline for issuing Plan Approval for minor actions in order to please U.S. EPA, then this well-intentioned streamlining that PADEP sought to provide sources in Pennsylvania could be lost.


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