7 Del. Admin. Code § 1102-12.0

Current through Register Vol. 27, No. 12, June 1, 2024

Section 1102-12.0 - Public Participation

12.1 Information obtained through the provisions of this regulation shall be made available for public inspection at any Department office except where such information is of confidential nature as defined in 7 Del.C. § 6014. The Department shall provide for public participation and comment in accordance with 12.2 through 12.6 of this regulation, as applicable.

12.2 Upon receipt of a source category permit application or a permit application, in proper form, the Department shall provide for public participation and comment by:

12.2.1 Making available in at least one location in the State of Delaware a public file containing a copy of all materials that the applicant has submitted (other than those granted confidential treatment).

12.2.2 Advertising in a newspaper of general circulation in the county in which the activity is proposed and in a daily newspaper of general circulation throughout the State:

12.2.2.1 The fact that the application has been received, the identity of the affected facility, and the city or town in which the facility is located;

12.2.2.2 A brief description of the nature of the application, to include the activity or activities involved in the permit action and the emissions or the change in emission involved; and

12.2.2.3 The name, address and telephone number of a Department representative with responsibility for the permitting action, the place at which a copy of the public file may be inspected, and a statement of procedures to request a hearing.

12.2.3 Sending notice of the information detailed in 12.2.2 of this regulation by mail to any person who has requested such notification from the Department by providing to the Department their name and mailing address.

12.2.4 Holding, if the Department receives a meritorious request for a hearing within 15 calendar days of the date of the advertisement described in 12.2.2 of this regulation, or if the Department deems it to be in the best interest of the State to do so, a public hearing on an application for interested persons to appear and submit written or oral comments on the air quality impact of the proposed action.

12.2.4.1 A public hearing request shall be deemed meritorious if it exhibits a familiarity with the application and a reasoned statement of the permit's probable impact.

12.2.4.2 Not less than 20 calendar days before the time of said hearing, notification that a public hearing will be held and the time and place of that hearing shall be:

12.2.4.2.1 Served upon the applicant as summonses are served or by registered or certified mail; and

12.2.4.2.2 Published in a newspaper of general circulation in the county in which the activity is proposed and in a daily newspaper of general circulation throughout the State.

12.2.5 Considering all comments submitted by the applicant and the public in reaching its final determination.

12.3 For each permit application requesting to make the terms and conditions in a permit to effectively limit potential to emit to avoid applicability of a federal standard, regulation, or other federal requirement, the Department shall provide for public participation and comment by:

12.3.1 Making available in at least one location in the State of Delaware a public file containing a copy of all materials that the applicant has submitted (other than those granted confidential treatment), a copy of the draft permit, and a copy or summary of other materials, if any, considered in making the preliminary determination.

12.3.2 Advertising in a newspaper of general circulation in the county in which the activity is proposed and in a daily newspaper of general circulation throughout the State:

1) the fact that the application has been received, the identity of the affected facility, and the city or town in which the facility is located,

2) a brief description of the nature of the application, to include the activity or activities involved in the permit action and the emissions or the change in emission involved, and

3) the name, address and telephone number of a Department representative with responsibility for the permitting action, the place at which a copy of the public file may be inspected, and the name, address, and telephone number of a person (or an email or Web site address) from whom interested persons may obtain additional information, and

4) the time and place of any hearing that may be held, including a statement of procedures to request a hearing (unless a hearing has already been scheduled).

12.3.3 On or before the date of the advertisement described in 12.3.2 of this regulation:

12.3.3.1 Sending notice of the information detailed in 12.3.2 of this regulation by mail to the Administrator of the EPA, through the Region III office, and to any person who has requested such notification from the Department by providing to the Department their name and mailing address.

12.3.3.2 Providing the Administrator of the EPA, through the Region III office, a copy of the draft permit.

12.3.4 Holding, if the Department receives a meritorious request for a hearing within 30 calendar days of the date of the advertisement described in 12.3.2 of this regulation, or if the Department deems it to be in the best interest of the State to do so, a public hearing on an application or the draft permit for interested persons to appear and submit written or oral comments on the air quality impact of the proposed action or on the specific terms and conditions of the draft permit.

12.3.4.1 A public hearing request shall be deemed meritorious if it exhibits a familiarity with the application and a reasoned statement of the permit's probable impact.

12.3.4.2 Not less than 30 calendar days before the time of said hearing, notification that a public hearing will be held and the time and place of that hearing shall be:

12.3.4.2.1 Served upon the applicant as summonses are served or by registered or certified mail; and

12.3.4.2.2 Published in a newspaper of general circulation in the county in which the activity is proposed and in a daily newspaper of general circulation throughout the State.

12.3.5 Affording the applicant an opportunity to submit, within 15 days following the close of the public comment period or the public hearing, whichever is later, a response to any comments made.

12.3.6 Considering all comments submitted by the applicant, the public, and the Administrator of the EPA in reaching its final determination.

12.3.7 Providing to the Administrator of the EPA, through the Region III office, a copy of the permit.

12.4 For each permit application requesting to allow the terms and conditions of a construction permit to transfer to a 7 DE Admin. Code 1130 permit via the administrative permit amendment process specified in 7 DE Admin. Code 1130, the Department shall provide for public participation and comment by:

12.4.1 Making available in at least one location in the State of Delaware a public file containing a copy of all materials that the applicant has submitted (other than those granted confidential treatment), a copy of the draft permit, and a copy or summary of other materials, if any, considered in making the preliminary determination.

12.4.2 Advertising in a newspaper of general circulation in the county in which the activity is proposed and in a daily newspaper of general circulation throughout the State:

1) the fact that the application has been received, the identity of the affected facility, and the city or town in which the facility is located,

2) a brief description of the nature of the application, to include the activity or activities involved in the permit action and the emissions or the change in emission involved, and

3) the name, address and telephone number of a Department representative with responsibility for the permitting action, the place at which a copy of the public file may be inspected, and the name, address, and telephone number of a person (or an email or Web site address) from whom interested persons may obtain additional information, and

4) the time and place of any hearing that may be held, including a statement of procedures to request a hearing (unless a hearing has already been scheduled).

12.4.3 On or before the date of the advertisement described in 12.4.2 of this regulation:

12.4.3.1 Sending notice of the information detailed in 12.4.2 of this regulation by mail to any person who has requested such notification from the Department by providing to the Department their name and mailing address, and to the representative of any affected states designated by those states to receive such notices. The term "affected states" retains the meaning accorded to it in 7 DE Admin. Code 1130.

12.4.3.2 Providing the Administrator of the EPA, through the Region III office, affected states, any person who requests it, and the applicant a statement that sets forth the legal and factual basis for the draft permit conditions (including references to the applicable statutory or regulatory provisions).

12.4.3.3 Providing the Administrator of the EPA, through the Region III office, a copy of the permit application unless the Administrator waives the requirement.

12.4.4 Holding, if the Department receives a meritorious request for a hearing within 30 calendar days of the date of the advertisement described in 12.4.2 of this regulation, or if the Department deems it to be in the best interest of the State to do so, a public hearing on an application or the draft permit for interested persons to appear and submit written or oral comments on the air quality impact of the proposed action or on the specific terms and conditions of the draft permit.

12.4.4.1 A public hearing request shall be deemed meritorious if it exhibits a familiarity with the application and a reasoned statement of the permit's probable impact.

12.4.4.2 Not less than 30 calendar days before the time of said hearing, notification that a public hearing will be held and the time and place of that hearing shall be:

12.4.4.2.1 Served upon the applicant as summonses are served or by registered or certified mail; and

12.4.4.2.2 Published in a newspaper of general circulation in the county in which the activity is proposed and in a daily newspaper of general circulation throughout the State.

12.4.5 Affording the applicant an opportunity to submit, within 15 days following the close of the public comment period or the public hearing, whichever is later, a response to any comments made.

12.4.6 Considering all comments submitted by the applicant, the public, and any affected state in reaching its final determination. The Department shall maintain a list of all commenters and a summary of the issues raised and shall make that information available in the public file and supply it to EPA upon request.

12.4.7 After meeting the requirements of 12.4.1 through 12.4.6 of this regulation, providing the Administrator of the EPA, through the Region III office, a copy of the proposed permit [i.e., the version of the permit that represents the Departments final determination under 12.4.6 of this regulation], all necessary supporting information, and providing a notice to the Administrator and to any affected state of any refusal by the Department to accept all recommendations for the proposed permit that the affected state submitted during the public review period. The notice shall include the Department's reasons for not accepting any such recommendation. The Department is not required to accept recommendations that are not based on applicable requirements. The term "applicable requirement" retains the meaning accorded to it in 7 DE Admin. Code 1130.

12.4.8 On or before the date that the Department provides the proposed permit to EPA for review under 12.4.7 of this regulation), issuing a written response to all comments submitted by affected states and all significant comments submitted by the applicant and the public.

12.5 The Department shall not issue the permit if the Administrator objects to its issuance in writing within 45 days of receipt of all of the information provided to the Administrator pursuant to 12.4.7 of this regulation. Any EPA objection under this paragraph shall include a statement of the Administrator's reasons for objection and a description of the terms and conditions that must be revised to respond to the objection. The Administrator will provide the applicant a copy of the objection. The Department may thereafter issue only a revised permit that satisfies EPA's objection.

12.6 If the Administrator does not object in writing under 12.5 of this regulation, any person may petition the Administrator within 60 days after the expiration of the Administrator's 45-day review period to make such objection. Any such petition shall be based only on objections to the permit raised with reasonable specificity during the public comment period provided for in 12.4 of this regulation, unless the petitioner demonstrates that it was impracticable to raise such objections within such period, or unless the grounds for such objection arose after such period. If the Administrator objects to the permit as a result of a petition filed under this paragraph, the Department shall not amend the 7 DE Admin. Code 1130 permit until EPA's objection has been resolved, except that a petition for review does not stay the effectiveness of the construction permit or the amended 7 DE Admin. Code 1130 permit or its requirements if the construction permit or the amended 7 DE Admin. Code 1130 permit was issued after the end of the 45-day review period and prior to an EPA objection. If the Department has issued an amended the 7 DE Admin. Code 1130 permit prior to receipt of an EPA objection under this paragraph, the Administrator will modify, terminate, or revoke such permit, and shall do so consistent with the time limits established in 40 CFR 70.7(g)(4) or (5)(i) and (ii), except in emergencies, and the Department may thereafter issue only a revised permit that satisfies EPA's objection. In any case, the source will not be in violation of the requirement to have submitted a timely and complete application under 7 DE Admin. Code 1130.

06/01/1997

7 Del. Admin. Code § 1102-12.0

26 DE Reg. 118 (8/1/2022) (Final)