SEPA
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Enwironnt«nui Protection
Agency
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Solid Wi»n
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DIRECTIVE NUMBER: 9521.02(84)
TITLE: Public Participation in Permit Issuance
APPROVAL DATE: 2-22-84; 5-7-84
EFFECTIVE DATE: 2-22-34, 5-7-84
ORIGINATING OFFICE: office of solid waste
S FINAL
D DRAFT
STATUS:
A- Pending OMB approval
B- Pending AA-OSWER approval
C- For review &/or comment
D- In development or circulating
REFERENCE (other document*): headquarters
DIRECTIVE DIRECTIVE D
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PART 124 SUBPART A — GENERAL REQUIREMENTS DOC: 9521.02(84)
Key Words: Public Participation
Regulations: RCRA §7004(b)
Subject: Public Participation in Permit Issuance
Addressee: Robert Bernstein, Commissioner, Texas Department of Health,
1100 West 49th Street, Austin, TX 78756
Originator: Lee M. Thomas, Assistant Administrator
SourceDoc: 1 /9521.02(84)
Date: 2—22—84; 5—7—84
Summary:
RCRA requires EPA and authorized States to publicly notice their intention
to issue a permit prior to holding a hearing [ RCRA §7004(b)]. This allows the
public to comment on the specific conditions the Agency intends to apply in the
draft permit.
However, present regulations and program guidance do not specifically
address the question of who is entitled to an informal hearing under §7004(b).
Based on review of the statute, legislative history, and general principles of
standing that bear on the issue, the General Council’s Office, Solid Waste and
Emergency Response Division, recommended the following approach in determining
who may request a hearing. The State should presume that all notices of
opposition and requests for a hearing are received from individuals within the
geographic area where the facility is planned to be located unless specific
information indicates they are outside the local area. If such an indication
exists, then a State would have the authority to inquire further and, when
warranted, request that the individual provide the allegations requested under
the “injury in fact” test. [ The individual her/himself suffers economic or
other injury and the alleged injury was to an interest “arguably within the
zone of interests to be protected or regulated by the statute ... in question.”
(Supreme Court Decision — Data Processing Service v. Camp , 397 U.S. 150 (1970).]
Since the 0CC recommendation represents only the minimum required under
RCRA, States may go beyond the minimum and provide for more extensive public
notice, hold additional.public hearings, and allow broader access to the hearing
process.
RCRA or the EPA regulations do not preclude a State from holding a public
hearing or meeting prior to issuance of the draft permit, as long as an additional
opportunity for a hearing is provided following issuance of the draft permit.
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MAY 11984
Dr. Robert Bernstein, Co igaioner
Texas Department of Health
1100 West 49th Street
Austin, Texas 78756
‘1
Dear Dr. Bernsteinz —
Thank you for your letter of April 4 expressing your
concern about EPA’s requirement that authorized States hold
a public hearing after issuance of a draft hazardous waste
permit. I understand that the Texas Department of Health is
couniuitted to an •ffective public participation program in
permit issuance, and I appreciate your concern about the - u
regulatory agency appearing to have made up its mind at the
time of the permit hearing.
Section 7004(b) of PCRA requires EPA and authorized
States to publish notice of the Agency’s intention to issue
a permit andq to hold a hearing if written notice of opposition
is received. EPA and authorized States are thu8 required by
RCRA to publicly notice their intention to issue a permit
prior to holding a hearing. The statute requires this approach
in order to allow the public opportunity to review and provide
co iments on the specific conditions which the Agency intends
to apply in the draft permit.
Nothing in RCRA or the EPP regulations precludes a State
from holding a public hearing or meeting prior to issuance of
the draft permit, as long as an additional opportunity for a
hearing is provided following issuance of the draft perrit.
we do, in fact, recognize the value and iinportanco of early
public involvement in the permit process. In our draft National
Permits Strategy we include Regional Office preparation of
facility—specific public participation plans and suggest that
a public r eeting be held prior to issuance of t e aratt permit,
in additior’ to the hearing which is subsequently held.
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I wish to co end the Stat. of Texas for its co ithent to
develop a Sound hasardous vast. management progrea. Texas has
been in the forefront in pursuit of int.ris and final author-
ization. please let i e know if I ay be of further assistance,
Sincerely yours,
/s/ Jack W.. McGr w
Lee M. Thomas
Assistant Ad inLstr.tor
cci Dick Whittington, P.E., legion VI
Charles g• Ne,ir, Texas part ent of Water Resources
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