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Air Quality Program

Commenting on a Prevention of Significant Deterioration (PSD) Proposed Determination

Anyone can comment on a proposed determination to deny or approve the PSD application and any conditions of approval proposed.  However while Ecology approves and denies PSD permits under the terms of a Delegation Agreement with the EPA, all comments received must meet the federal criteria on comment content and timeliness.  By following the EPA comment requirements, the ability of a commenter to appeal an unfavorable determination to the EPA’s Environmental Appeals Board can be preserved.

A person who believes any condition of a proposed determination is inappropriate, must:

  • Raise all reasonably ascertainable issues to the agency and
  • Submit all reasonably available arguments supporting their position
  • Submit those comments and supporting arguments by the end of the public comment period (which includes any additional time to include an optional public hearing).

Any supporting materials referenced in the comments must be included in full unless the material is already part of the administrative record for this preliminary determination, are state or federal laws and regulations, or other documents generally available to Ecology, EPA and the public. (see 40 CFR 124.13 for additional details).

A “reasonably ascertainable issue” is:

Request for Extension of Public Comment Period

When a person or group determines a need for additional time to generate comments on the proposed determination, they may submit a written request for Ecology to extend the public comment period. The person requesting an extension of the comment period needs to explain why the request is warranted and an estimate of how long it will take to prepare and submit comments.  Ecology will respond to the request before the end of the original public comment period.

Request for Public Hearing

Holding a Public Hearing on a PSD Preliminary Determination is not a requirement, but is an option available at the discretion of Ecology. When a person or group believes that the issues surrounding a particular PSD Preliminary Determination are significant, that person can request that a Public Hearing be held. The request must be submitted during the 30 day comment period. The request must indicate the interest of the person requesting that a hearing be held and why the person believes a hearing is warranted.

Ecology may hold a public hearing if it determines significant public interest in the PSD Preliminary Determination exists. With a Public Notice (and individual contact to persons that requested a hearing), Ecology will indicate the location, date, and time of any public hearing held on the Preliminary Determination.

When a public hearing is held, the comment period is extended to include the hearing within the comment period. This allows any comments given at the hearing to become part of the administrative record for the PSD Final Determination.

§ 124.13 Obligation to raise issues and provide information during the public comment period.

All persons, including applicants, who believe any condition of a draft permit is inappropriate or that the Director’s tentative decision to deny an application, terminate a permit, or prepare a draft permit is inappropriate, must raise all reasonably ascertainable issues and submit all reasonably available arguments supporting their position by the close of the public comment period (including any public hearing) under § 124.10.

Any supporting materials which are submitted shall be included in full and may not be incorporated by reference, unless they are already part of the administrative record in the same proceeding, or consist of State or Federal statutes and regulations, EPA documents of general applicability, or other generally available reference materials. Commenters shall make supporting materials not already included in the administrative record available to EPA as directed by the Regional Administrator.  (A comment period longer than 30 days may be necessary to give commenters a reasonable opportunity to comply with the requirements of this section. Additional time shall be granted under § 124.10 to the extent that a commenter who requests additional time demonstrates the need for such time.)

[49 FR 38051, Sept. 26, 1984 ]

§ 124.19 Appeal of RCRA, UIC, NPDES, and PSD Permits.

(a) Within 30 days after a RCRA, UIC, NPDES, or PSD final permit decision (or a decision under 270.29 of this chapter to deny a permit for the active life of a RCRA hazardous waste management facility or unit) has been issued under § 124.15 of this part, any person who filed comments on that draft permit or participated in the public hearing may petition the Environmental Appeals Board to review any condition of the permit decision. Persons affected by an NPDES general permit may not file a petition under this section or otherwise challenge the conditions of the general permit in further Agency proceedings. They may, instead, either challenge the general permit in court, or apply for an individual NPDES permit under §122.21 as authorized in § 122.28 and then petition the Board for review as provided by this section. As provided in § 122.28(b)(3), any interested person may also petition the Director to require an individual NPDES permit for any discharger eligible for authorization to discharge under an NPDES general permit. Any person who failed to file comments or failed to participate in the public hearing on the draft permit may petition for administrative review only to the extent of the changes from the draft to the final permit decision. The 30-day period within which a person may request review under this section begins with the service of notice of the Regional Administrator’s action unless a later date is specified in that notice. The petition shall include a statement of the reasons supporting that review, including a demonstration that any issues being raised were raised during the public comment period (including any public hearing) to the extent required by these regulations and when appropriate, a showing that the condition in question is based on:

(1) A finding of fact or conclusion of law which is clearly erroneous, or

(2) An exercise of discretion or an important policy consideration which the Environmental Appeals Board should, in its discretion, review.

(b) The Environmental Appeals Board may also decide on its own initiative to review any condition of any RCRA, UIC, NPDES, or PSD permit decision issued under this part for which review is available under paragraph (a) of this section. The Environmental Appeals Board must act under this paragraph within 30 days of the service date of notice of the Regional Administrator’s action.

[ARN1] Reasonable doubt An accused person is entitled to acquittal if, in the minds of the jury, his or her guilt has not been proved beyond a "reasonable doubt;" that state of minds of jurors in which they cannot say they feel an abiding conviction as to the truth of the charge.

Reasonable person: A phrase used to denote a hypothetical person who exercises qualities of attention, knowledge; intelligence, and judgment that society requires of its members for the protection of their own interest and the interests of others. Thus, the test of negligence is based on either a failure to do something that a reasonable person, guided by considerations that ordinarily regulate conduct, would do, or on the doing of something that a reasonable and prudent (wise) person would not do.

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