18 AAC 83.120 - Public notice and comment; hearing on permit; issuance of final permit

Current through September 28, 2021

(a) The department will give notice to the public that a draft permit has been prepared under 18 AAC 83.115, and whether a hearing is scheduled. A public notice may describe more than one permit or permit action.
(b) In a public notice, the department will allow at least 30 days for public comment on the draft permit, and will give at least 30 days notice before the hearing. Notice of the draft permit and the hearing may be combined and given at the same time.
(c) Public notice of the preparation of a draft permit and any hearing on the draft permit must be given by the following methods:
(1) by mailing a copy of the notice to the following persons, unless any person entitled to receive notice under this paragraph waives that person's right to receive notice for any classes and categories of permits:
(A) the applicant, unless there is no applicant for an APDES general permit;
(B) any other agency that the department knows has issued or is required to issue a permit for the same facility or activity under the following laws and programs:
(i) Resource Conservation and Recovery Act, 42 U.S.C. 6921 - 6939 e;
(ii) Underground Injection Control Program, 42 U.S.C. 300 f - 300j-26;
(iii) Clean Air Act, 42 U.S.C. 7401 - 7671 q;
(iv) National Pollutant Discharge Elimination System Program, 33 U.S.C. 1342;
(v) Sludge Management Program, 33 U.S.C. 1345;
(vi) Dredge and Fill Permit Program, 33 U.S.C. 1344; or
(vii) Ocean Dumping Permit Program under the Marine Research Protection and Sanctuaries Act, 33 U.S.C. 1412 - 1414(b);
(C) federal and state agencies with jurisdiction over fish, shellfish, and wildlife resources, the federal Advisory Council on Historic Preservation, state historic preservation officers, and any affected Indian tribe;
(D) any state agency responsible for plan development under 33 U.S.C. 1288(b)(2), 33 U.S.C. 1288(b)(4), or 33 U.S.C. 1313(e), and the United States Army Corps of Engineers, the United States Fish and Wildlife Service, and the National Marine Fisheries Service;
(E) any user identified in the permit application of a privately owned treatment works;
(F) persons on a mailing list developed by
(i) recording those who request in writing to be on the list;
(ii) soliciting persons for area lists from participants in past permit proceedings in that area; and
(iii) publishing notice on the department's website and through periodic publication in the local press and in regional and state-funded newsletters, environmental bulletins, state law journals or similar publications, of the opportunity to be on the mailing list; the department may update the mailing list from time to time by requesting written indication of continued interest from those listed, and may delete from the list the name of any person who fails to respond to the department's request;
(G) any unit of local government having jurisdiction over the area where the facility is proposed to be located; and
(H) each state agency having any authority under state law with respect to the construction or operation of the facility;
(2) for a major facility permit and a general permit, by publishing a notice in a daily or weekly newspaper within the area affected by the facility or activity;
(3) in a manner constituting legal notice to the public under state law; and
(4) by any other method reasonably calculated to give actual notice of the action in question to the persons potentially affected by it, including press releases or use of any other forum or media to elicit public participation.
(d) A public notice issued under this section must contain at least the following information:
(1) name and address of the office processing the permit action for which notice is being given and where comments may be submitted;
(2) name and address of the permittee or permit applicant and, if different, of the facility or activity regulated by the permit, except in the case of APDES draft general permits;
(3) a brief description of the business conducted at the facility or activity described in the permit application, or for general permits when there is no application, in the draft permit;
(4) name, address, and telephone number of a person from whom interested persons may obtain further information, including copies of the draft permit or draft general permit, fact sheet, and the application;
(5) a brief description of the comment and hearing procedures required by (h) and (l) of this section and the time and place of any hearing that will be held; if no hearing has already been scheduled, a statement of procedures to request a hearing and other procedures by which the public may participate in the final permit decision;
(6) a general description of the location of each existing or proposed discharge point and the name of the receiving water;
(7) a description of requirements applicable to cooling water intake structures under 33 U.S.C. 1326(b) in accordance with 40 C.F.R. Part 125, Subparts I, J, and N, adopt by reference in 18 AAC 83.010;
(8) any additional information considered necessary or proper.
(e) In addition to the information required by (d) of this section, the public notice for a draft permit for a discharge for which a request has been filed under 33 U.S.C. 1326(a) must include
(1) a statement that the thermal component of the discharge is subject to effluent limitations under 33 U.S.C. 1311 and 1316, and a brief description, including a quantitative statement, of the thermal effluent limitations proposed under 33 U.S.C. 1311 and 33 U.S.C. 1316;
(2) a statement that a request has been filed under 33 U.S.C. 1326(a), that alternative less stringent effluent limitations may be imposed on the thermal component of the discharge under 33 U.S.C. 1326(a), and a brief description, including a quantitative statement, of the alterative effluent limitations, if any, included in the request; and
(3) if the applicant has filed an early screening request under 40 C.F.R. 125.72, adopted by reference in 18 AAC 83.010, for a variance under 33 U.S.C. 1326(a), a statement that the applicant has submitted that early screening request.
(f) In addition to the general public notice described in (d) of this section, the public notice of a hearing under this section must contain the following information:
(1) reference to the date of previous public notices relating to the permit;
(2) date, time, and place of the hearing;
(3) a brief description of the nature and purpose of the hearing, including the applicable rules and procedures.
(g) In addition to the general public notice described in (d) of this section, the department shall provide a copy of the draft permit and fact sheet and the permit application, if any, to all persons identified in (c)(1)(A), (B), (C), and (D) of this section. The department will provide a copy of the draft permit and fact sheet and the permit application, if any, to EPA at the same time public notice on the draft permit is published.
(h) During the public comment period, any interested person may submit written comments on the draft permit and may request a public hearing if no hearing has already been scheduled. A request for a public hearing must be in writing and must state the nature of the issues proposed to be raised in the hearing. The department will consider all comments in making the final decision and will answer the comments as provided in (o) of this section.
(i) If, during the comment period for an APDES draft permit, the district engineer of the United States Army Corps of Engineers advises the department in writing that anchorage and navigation of any of the waters of the United States would be substantially impaired by the granting of a permit, the department will deny the permit and notify the applicant of the denial. If the district engineer advises the department that imposing specified conditions upon the permit is necessary to avoid any substantial impairment of anchorage or navigation, the department will include the specified conditions in the permit. Review or appeal of denial of a permit or of conditions specified by the district engineer must be sought through the applicable procedures of the United States Army Corps of Engineers and not through the state procedures set out in 18 AAC 83.175. If a court of competent jurisdiction stays the conditions or if applicable procedures of the United States Army Corps of Engineers result in a stay of the conditions, those conditions must be considered stayed in the APDES permit for the duration of the stay.
(j) If, during the comment period for an APDES draft permit, the United States Fish and Wildlife Service, the National Marine Fisheries Service, or any other state or federal agency with jurisdiction over fish, wildlife, or public health advises the department in writing that the imposition of specified conditions upon the permit is necessary to avoid substantial impairment of fish, shellfish, or wildlife resources, the department may include the specified conditions in the permit to the extent the department determines they are necessary to comply with the provisions of applicable federal laws.
(k) In appropriate cases, the department may consult with one or more of the agencies referred to in (i) and (j) of this section before issuing a draft permit and may set out agency's view in the fact sheet or the draft permit.
(l) The department will hold a public hearing whenever the department finds, on the basis of requests, a significant degree of public interest in a draft permit. The department may also hold a public hearing if a hearing might clarify one or more issues involved in the permit decision or for other good reason in the department's discretion.
(m) Before issuing a final individual APDES permit, the department will provide a copy of the proposed final permit and draft response to comments to the permit applicant for review. The department will concurrently provide a copy of the proposed final permit and draft response to comments to EPA, unless EPA has previously waived its right to review the proposed final permit. The department will give the applicant at least five days, not including the weekend or state holidays, to review and discuss the proposed final permit with the department. The applicant may by written notice to the department waive the applicant's right to review and discuss the proposed final permit with the department or agree to a shortened period for that review and discussion. At the time the department provides a copy of the proposed final permit to the applicant under this subsection, the department will also make the proposed final permit available to the public.
(n) Before issuing a final general APDES permit, the department will post a copy of the general permit on the Alaska Online Public Notice System for at least five days, not including the weekend or state holidays, for potential permittees to review and discuss the proposed final permit with the department.
(o) The department will transmit to EPA a copy of any significant comments presented in writing in response to the public notice of a draft permit and a summary of any significant comments presented at any hearing on a draft permit in accordance with 40 C.F.R. 123.43(c). When the department issues a final permit, the department will issue a response to comments, which must be available to the public. The response must
(1) specify which provisions, if any, of the draft permit have been changed in the final permit decision, and the reasons for the change; and
(2) briefly describe and respond to all significant comments on the draft permit raised during the public comment period, or during any hearing.
(p) When a fact sheet has been prepared under 18 AAC 83.115(b), the department will issue a revised fact sheet for the final permit, which must include all of the requirements of 18 AAC 83.115(c), and be available to the public. The department will notify EPA that the final permit, revised fact sheet reflecting the final permit, and response to comments are available on the department's web page.

Notes

18 AAC 83.120
Eff. 7/29/2006, Register 179; am 11/10/2007, Register 184; am 10/23/2008, Register 188; am 4/8/2012, Register 202

Authority:AS 44.46.020

AS 46.03.010

AS 46.03.020

AS 46.03.050

AS 46.03.100

AS 46.03.110

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