Wash. Admin. Code § 173-400-171

Current through Register Vol. 24-20, October 15, 2024

Section 173-400-171 - Public notice and opportunity for public comment

The purpose of this section is to specify the requirements for notifying the public about air quality actions and to provide opportunities for the public to participate in those actions. This section applies statewide except that the requirements of WAC 173-400-171(1) through (11) do not apply where the permitting authority has adopted its own public notice provisions.

(1)Applicability to prevention of significant deterioration, and relocation of portable sources.

This section does not apply to:

(a) A notice of construction application designated for integrated review with actions regulated by WAC 173-400-700 through 173-400-750. In such cases, compliance with the public notification requirements of WAC 173-400-740 is required.

(b) Portable source relocation notices as regulated by WAC 173-400-036, relocation of portable sources.

(2)Internet notice of application.

(a) For those applications and actions not subject to a mandatory public comment period per subsection (3) of this section, the permitting authority must post an announcement of the receipt of notice of construction applications and other proposed actions on the permitting authority's internet web site.

(b) The internet posting must remain on the permitting authority's web site for a minimum of fifteen consecutive days.

(c) The internet posting must include a notice of the receipt of the application, the type of proposed action, and a statement that the public may request a public comment period on the proposed action.

(d) Requests for a public comment period must be submitted to the permitting authority in writing via letter, or electronic means during the fifteen-day internet posting period.

(e) A public comment period must be provided for any application or proposed action that receives such a request. Any application or proposed action for which a public comment period is not requested may be processed without further public involvement at the end of the fifteen-day internet posting period.

(3)Actions subject to a mandatory public comment period. The permitting authority must provide public notice and a public comment period before approving or denying any of the following types of applications or other actions:

(a) Any application, order, or proposed action for which a public comment period is requested in compliance with subsection (2) of this section.

(b) Any notice of construction application for a new or modified source, including the initial application for operation of a portable source, if there is an increase in emissions of any air pollutant at a rate above the emission threshold rate (defined in WAC 173-400-030) or any increase in emissions of a toxic air pollutant above the acceptable source impact level for that toxic air pollutant as regulated under chapter 173-460 WAC; or

(c) Any use of a modified or substituted air quality model, other than a guideline model in Appendix W of 40 C.F.R. Part 51 (in effect on the date in WAC 173-400-025) as part of review under WAC 173-400-110, 173-400-113, or 173-400-117; or

(d) Any order to determine reasonably available control technology, RACT; or

(e) An order to establish a compliance schedule issued under WAC 173-400-161, or a variance issued under WAC 173-400-180; or

Note:

Mandatory notice is not required for compliance orders issued under WAC 173-400-230.

(f) An order to demonstrate the creditable height of a stack which exceeds the good engineering practice, GEP, formula height and sixty-five meters, by means of a fluid model or a field study, for the purposes of establishing an emission limit; or

(g) An order to authorize a bubble; or

(h) An action to discount the value of an emission reduction credit, ERC, issued to a source per WAC 173-400-136; or

(i) A regulatory order to establish best available retrofit technology, BART, for an existing stationary facility; or

(j) A notice of construction application or regulatory order used to establish a creditable emission reduction; or

(k) An order issued under WAC 173-400-091 that establishes limitations on a source's potential to emit; or

(l) The original issuance and the issuance of all revisions to a general order of approval issued under WAC 173-400-560 (this does not include coverage orders); or

(m) An extension of the deadline to begin actual construction of a "major stationary source" or "major modification" in a nonattainment area; or

(n) An application or other action for which the permitting authority determines that there is significant public interest; or

(o) An order issued under WAC 173-400-081(4) or 173-400-082 that establishes an emission limitation that exceeds a standard in the SIP.

(4)Advertising the mandatory public comment period.

(a) Public notice of all applications, orders, or actions listed in subsection (3) of this section must be posted on the permitting authority web site for the duration of the public comment period.

(i) The permitting authority may supplement this method of notification by advertising in a newspaper of general circulation in the area of the proposed action or by other methods appropriate to notify the local community. The applicant or other initiator of the action must pay the publishing cost for all supplemental noticing.

(ii) A permitting authority must publish a notice of the public comment period in a newspaper of general circulation in the area of the proposed action until June 30, 2019. We recommend that a permitting authority continue publishing a notice in a newspaper for a project with high interest. The applicant or other initiator of the action must pay this publishing cost.

(b) This public notice can be posted or given only after all of the information required by the permitting authority has been submitted and after the applicable preliminary determinations, if any, have been made.

(c) The notice must be posted or given before any of the applications or other actions listed in subsection (3) of this section are approved or denied.

(5)Information available for public review.

(a) Administrative record. The information submitted by the applicant, and any applicable preliminary determinations, including analyses of the effects on air quality, must be available for public inspection. A permitting authority may comply with this requirement by making these materials available on its web site or in at least one physical location near the proposed project.

(b) The permitting authority must post the following information on its web site for the duration of the public comment period:

(i) Public notice complying with subsection (6) of this section;

(ii) Draft permit, order, or action; and

(iii) Information on how to access the administrative record.

(c) Exemptions from this requirement include information protected from disclosure under any applicable law including, but not limited to, RCW 70.94.205 and chapter 173-03 WAC.

(6)Public notice components.

(a) The notice must include:

(i) The date the notice is posted;

(ii) The name and address of the owner or operator and the facility;

(iii) A brief description of the proposal and the type of facility, including a description of the facility's processes subject to the permit;

(iv) A description of the air contaminant emissions including the type of pollutants and quantity of emissions that would increase under the proposal;

(v) The location where those documents made available for public inspection may be reviewed;

(vi) Start date and end date for a public comment period consistent with subsection (7) of this section;

(vii) A statement that a public hearing will be held if the permitting authority determines that there is significant public interest;

(viii) The name, address, and telephone number and email address of a person at the permitting authority from whom interested persons may obtain additional information, including copies of the permit draft, the application, all relevant supporting materials, including any compliance plan, permit, and monitoring and compliance certification report, and all other materials available to the permitting authority that are relevant to the permit decision, unless the information is exempt from disclosure;

(b) For projects subject to special protection requirements for federal Class I areas, as required by WAC 173-400-117, public notice must include an explanation of the permitting authority's draft decision or state that an explanation of the draft decision appears in the support document for the proposed order of approval.

(7)Length of the public comment period.

(a) The public comment period must consist of a minimum of thirty days and start at least thirty days prior to any hearing. The first day of the public comment period begins on the next calendar day after the permitting authority posts the public notice on their web site.

(b) If a public hearing is held, the public comment period must extend through the hearing date.

(c) The final decision cannot be issued until the public comment period has ended and any comments received during the public comment period have been considered.

(8)Requesting a public hearing. The applicant, any interested governmental entity, any group, or any person may request a public hearing within the public comment period. All hearing requests must be submitted to the permitting authority in writing via letter, or electronic means. A request must indicate the interest of the entity filing it and why a hearing is warranted.

(9)Setting the hearing date and providing hearing notice. If the permitting authority determines that significant public interest exists, then it will hold a public hearing. The permitting authority will determine the location, date, and time of the public hearing.

(10)Notice of public hearing.

(a) At least thirty days prior to the hearing the permitting authority must provide notice of the hearing as follows:

(i) Post the public hearing notice on the permitting authority web site as directed by subsection (4) and (7) of this section;

(ii) The permitting authority may supplement the web posting by advertising in a newspaper of general circulation in the area of the proposed source or action, or by other methods appropriate to notify the local community; and

(iii) Distribute by electronic means or via the United States postal service the notice of public hearing to any person who submitted written comments on the application or requested a public hearing and in the case of a permit action, to the applicant.

(b) This notice must include the date, time and location of the public hearing and the information described in subsection (6) of this section.

(c) In the case of a permit action, the applicant must pay all supplemental notice costs when the permitting authority determines a supplemental notice is appropriate. Supplemental notice may include, but is not limited to, publication in a newspaper of general circulation in the area of the proposed project.

(11)Notifying the EPA. The permitting authority must distribute by electronic means or via the United States postal service a copy of the notice for all actions subject to a mandatory public comment period to the EPA Region 10 regional administrator.

(12)Special requirements for ecology only actions.

(a) This subsection applies to ecology only actions including:

(i) A Washington state recommendation to EPA for the designation of an area as attainment, nonattainment or unclassifiable after EPA promulgation of a new or revised ambient air quality standard or for the redesignation of an unclassifiable or attainment area to nonattainment;

(ii) A Washington state submittal of a SIP revision to EPA for approval including plans for attainment and maintenance of ambient air quality standards, plans for visibility protection, requests for revision to the boundaries of attainment and maintenance areas, requests for redesignation of Class I, II, or III areas under WAC 173-400-118, and rules to strengthen the SIP.

(b) Ecology must provide a public hearing or an opportunity for requesting a public hearing on an ecology only action. The notice providing the opportunity for a public hearing must specify the manner and date by which a person may request the public hearing and either provide the date, time and place of the proposed hearing or specify that ecology will publish a notice specifying the date, time and place of the hearing at least thirty days prior to the hearing. When ecology provides the opportunity for requesting a public hearing, the hearing must be held if requested by any person. Ecology may cancel the hearing if no request is received.

(c) The public notice for ecology only actions must comply with the requirements of 40 C.F.R. 51.102 (in effect on the date in WAC 173-400-025).

(13)Other requirements of law. Whenever procedures permitted or mandated by law will accomplish the objectives of public notice and opportunity for comment, those procedures may be used in lieu of the provisions of this section.

Wash. Admin. Code § 173-400-171

Amended by WSR 16-12-099, Filed 5/31/2016, effective 7/1/2016

Amended by WSR 18-17-111, Filed 8/16/2018, effective 9/16/2018

Statutory Authority: Chapter 70.94 RCW. 12-24-027 (Order 11-10), § 173-400-171, filed 11/28/12, effective 12/29/12; 11-06-060 (Order 09-01), § 173-400-171, filed 3/1/11, effective 4/1/11. Statutory Authority: RCW 70.94.395 and 70.94.331. 07-11-039 (Order 06-03), § 173-400-171, filed 5/8/07, effective 6/8/07. Statutory Authority: RCW 70.94.152. 05-03-033 (Order 03-07), § 173-400-171, filed 1/10/05, effective 2/10/05. Statutory Authority: Chapter 70.94 RCW, RCW 70.94.141, [70.94.]152, [70.94.]331,[70.94.]510 and 43.21A.080. 01-17-062 (Order 99-06), § 173-400-171, filed 8/15/01, effective 9/15/01. Statutory Authority: Chapter 70.94 RCW. 95-07-126 (Order 93-40), § 173-400-171, filed 3/22/95, effective 4/22/95; 93-18-007 (Order 93-03), § 173-400-171, filed 8/20/93, effective 9/20/93; 91-05-064 (Order 90-06), § 173-400-171, filed 2/19/91, effective 3/22/91.