Meredith O. Graham, Esq. Babst, Calland, Clements and Zomnir, P.C.

Draft permit review is an important part of the air permitting process.  Careful evaluation of the draft permit enables the permittee to head off possible compliance issues and otherwise refine the permit before it becomes final.  As the permittee, you will typically have at least two chances to comment on a draft permit—once on a pre-draft version and again during the official public comment period.  Take advantage of these opportunities to craft an air permit that best suits your facility, and keep in mind the following tips as you prepare written comments for submission to the agency.

Establish an Internal Schedule:  The very first thing you should do upon receiving the draft permit is confirm how much time is available for the review.  Double check the comment deadline and plan to meet it.  You’ll need ample time to review the relevant documents, gather internal input and prepare written comments.  Make time to get feedback from the facility personnel who will actually implement the permit on a day-to-day basis.  Mark the calendar and establish interim deadlines to keep the ball rolling.  It may become necessary to request an extension, in which case you’ll want to show that a good faith effort was made to meet the original deadline.

Request the Draft Permit in a Writeable Format:  Ideally, your submission will include a “marked up” or redlined version of the draft permit which clearly shows the changes you are requesting.  This is much easier to do when the agency can provide the draft permit in a writeable format such as Microsoft Word.  In situations where an existing permit is in effect, it will be helpful to make a comparison document showing the differences between the existing permit and the draft permit.  Ask the permit writer to provide a list of the changes he or she made to the permit, but don’t rely on him or her to point out small changes that could have a big impact.  Do your own side-by-side comparison of the permits.

Ask for the Review Memo:  The permit writer will likely prepare an internal supporting memorandum in conjunction with the draft permit.  This document may be referred to as the “review memo” or “Statement of Basis.”  It can provide helpful clues about how the permit writer determined what requirements to include in the permit.  Surprised by something you see in the permit?  Consult the review memo for an explanation and confirm that the agency relied on accurate facts.

Check the Application and Other Permits:  The draft permit should conform to the information presented in the application.  To the extent that another air permit (e.g., construction approval) is being consolidated with the draft permit, confirm that they were appropriately combined.

Verify Rule Applicability:  Federal and state air pollution control rules like New Source Performance Standards will appear in the permit.  Some agencies will incorporate by reference only, whereas others will insist on including the relevant text of the regulation in the permit.  Are affected facilities such as stationary emergency engines properly characterized in the permit, in terms of regulatory status?  Consider documenting exemptions and non-applicability determinations in the permit to take advantage of a permit shield.

Do a Practice Run:  Some air permits (most notably Title V permits) require the permittee to certify compliance with each condition.  For this reason, it is recommended that you locate the compliance certification forms you will eventually need to submit and do a practice run using the draft permit.  Can you reasonably comply with each condition as written?

Speak with the Permit Writer:  For the sake of efficiency, before submitting your written comments, it may be helpful to have a preliminary call with the permit writer to clarify agency intent and focus on the list of issues.

Check for Typos:  It goes without saying that you should take a hard look at the entire permit.  Double check numerical limits, equipment specifications (e.g., throughput ratings), source descriptions and cross-references.  Is the right stuff in the right place?  All of this will become binding once the permit is finalized, at which point it may be difficult to make changes.

Establish a Basis for Appeal:  A permittee generally has the right to appeal any unsatisfactory conditions once the permit is issued as final. You should comment to provide a complete administrative record that will be beneficial to any appeal that may be filed.  This calls for vigilant review of the draft permit and a thoughtful presentation of the issues.

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