The Public Participation Process

• Author: Susan M. McMichael
• Pages: 117-150

Page 117

Chapter 5

The PublicParticipationProcess

5.0 Introduction

Given the contentious and emotionally charged environment in which many hazardous waste per-

mit proceedings take place, [public participation] is crucial.1

Rooted in the Due Process Clause of the U.S. Constitution, public participation in RCRA permit proceedings

has been described as serving “an essential cathartic and educational purpose, one which would be frustrated

if the public was not given an opportunity to comment.”2 e importance of public participation in RCRA

permitting cannot be overstated. RCRA is replete with references to public participation and provides EPA con-

siderable latitude and authority under RCRA §7004(b) to encourage, and assist in, public participation during

the permitting process. EPA and state-equivalent rules reect these goals by providing for public input at all

stages of RCRA permitting: before submission of the permit application; following receipt of new and renewal

permit applications; upon issuance of draft permits and most types of permit modications; and during the life

of the permit, including closure.

“Public participation is a dialogue.”3 A successful public participation program requires careful planning

and commitment in order to involve the public in the decisionmaking process. e process is intended to

result in an informed citizenry and demonstrate a rm commitment to the public by the permitting agency.

Open and honest lines of communication should empower interested persons to participate by explaining how

the agency decision can be inuenced. Environmental justice (EJ) concerns may especially require enhanced

public pa rticipation eorts. Minority and low-income communities located near hazardous waste facilities

may require targeted communication, multilingual notices, translation, and other eorts to promote full and

fair participation. A process that does not promote

these principles is not likely to result in meaning-

ful public participation. e activities discussed in

this chapter include: public notice (Section 5.1);

public meetings (Section 5.2); information reposi-

tories (Section 5.3); public comment, and how to

prepare public comment (Section 5.4); public hear-

ings (Section 5.5); nal permit decisions (Section

5.6); permit appeals (Section 5.7); and special top-

ics, including negotiated permits, EJ, and Title VI

(Section 5.8).

1. Envirotrol, Inc. v. Commonwealth of Pennsylvania Dept. of Envtl. Resources, Pa. Envtl. Hearing Bd., No. 91-388-W, at 5, 1993 EHB 1495, 1993

WL 393493 (Sept. 1993).

2. Id.

3. Id. at 2-3.

Image court esy o f Chr istopher Zappe.

Page 118 RCRA Permitting Deskbook

Figure 5.1

Public Parti cipation in the RCRA Permit Process

Image court esy o f Dawn Man ges.

The Public Participation Process Page 119

5.1 Public Notice

e public notice requirements [are] intended to confer important rights of participation on the

public, as well as aid the Agency in making its permit determinations.4

e public notice triggers public participation, and plays a vital role in RCR A permit decisions of all types.

Public notice is required throughout the RCRA permit process, from receipt of a new or renewal permit

application to closure or post-closure activities. For the most part, the permitting agency must prepare the

public notice. An exception, however, is that the facility is responsible for preparing notices for public meetings

and the establishment of an information repository. is section does not address the specic public notice

requirements for each agency action. Instead, specic public notice requirements are discussed in the appropri-

ate chapter. For example, public notice requirements for permit applications and draft permits are discussed,

respectively, in Chapter 4.4.1 and 4.7.1. Notably, state public participation requirements can vary, and impose

additional requirements.

e key objective of the public notice is to facilitate public participation and provide interested persons

with an opportunity to comment on the proposed permitting action.5 ere are t wo types of public notice:

(1)an individual notice (if required) protects the due process rights of individual property owners whose use

and enjoyment of their properties may be aected by the grant or denial of a permit application; and (2) a gen-

eral public notice to involve all interested persons in the permitting process. A defective public notice does not

accomplish those tasks and can bring a well-prepared application or draft permit to a grinding halt. e remedy

for a successful challenge depends upon the seriousness of the error and attributable harm. It can be harsh and

invalidate the subsequent permit process, including a public hearing. Fortunately, potential notice problems

can be avoided with minimal eort by paying careful attention to public notice requirements and to strategies

to provide the additional public process, if necessary.

5.1.1 Public Notice Issues

is section describes a host of public notice issues common for all types of

RCRA permit decisions. An administrative hearing ocer or judge faced with

a defective public notice may not hesitate to require the agency to draft a new

public notice that corrects the defect. is seemingly simple remedy is of no

small consequence if the result is a new public hea ring. e issues related to

public notice required for a RCRA permit decision are discussed below (see

Box 5.1).

Distribution and Publication

e public notice must appear, at a minimum, in the specic location(s) of the site a nd in the manner

required by EPA rule or state-equivalent law. e permitting agency may provide additional forms of notice

to inform t he public of a draft permit, modi cation, or ot her agency action. For example, notication by

e-mail is a relatively common and eective form of notice that may not be required by law. To ensure that

the public is notied of important permit-based actions, some agencies have required the facility to maintain

a web page link to notify the public about actions requiring e-ma il notications.6ere are several types of

public notice:

4. In the Matter of Waste Technologies, 1 E.A.D. 831 (EAB 1984).

5. See In the Matter of GSX Serv. of South Carolina, Inc. 4 E.A.D. 451, 462, A. M. 40110 (EAB 1992) (EPA required to reopen record

to publicly notice the location conditions for facility to allow public comment); NRDC v. EPA, 863 F.2d 1420, 1429, 19 ELR 20225 (9th Cir.

1988) (quoting American Iron and Steel Inst. v. EPA, 568 F.2d 284, 293, 7 ELR 20738 (3d Cir. 1977), cert. denied, 435 U.S. 914 (1978) (EPA

must provide notice sucient to fairly apprise interested persons in the subject and issue before the agency in NPDES permit)).

6. See, e.g., WIPP’s Hazardous Waste Facility Permit (Section I.H) (available on the New Mexico Environment Department’s web page, at www.

nmenv.state.nm.us/wipp/pdfpermit.html).

Box 5.1

Public Notic e Issu es

Distribution

Content

Recipients

Environm ental Justice