EPA eliminates mandatory notice for Clean Air Act permits

Nov 1, 2016

By Richard Karpel
NNA | Public Policy

WASHINGTON—The Environmental Protection Agency recently announced it was eliminating the mandatory requirement to provide newspaper notice of permitting and implementation actions under the Clean Air Act. The rule, which will take effect 30 days after it is published in the Federal Register, requires electronic notice (e-notice) for EPA actions. It also permits e-notice for CAA permits issued by other agencies that implement EPA-approved programs.

The rule doesn’t prevent permitting authorities from supplementing e-notice with newspaper notice in situations where they feel it may be warranted. In addition, it doesn’t override state laws requiring state and local environmental agencies to use newspapers to notify the public about EPA-approved permitting actions under the CAA. In those states, new legislation would have to be signed into law to eliminate the newspaper-notice requirement.

Earlier this year, the National Newspaper Association signed onto comments submitted by the Public Notice Resource Center in response to EPA’s original proposal. The agency responded at length to the comments in its final rule. EPA appears to have been most sensitive to PNRC’s argument that eliminating newspaper notice would disadvantage rural, elderly and low-income Americans without Internet access. But the agency swept aside those concerns by citing a 2010 study that showed 44 percent of citizens “living below the poverty line” use library computers.

EPA also disagreed with PNRC’s contention that public notices should be published by an independent third party, not the government agencies whose actions are subject to notification. But rather than address this “fox guarding the henhouse” argument, EPA noted instead that “(PNRC) has not demonstrated that newspapers generally exercise independent editorial control over the content of legal notices or … otherwise seek to check the veracity of what the newspaper company is paid to print in these sections of its publication.”

Perhaps the most surprising aspect of the new rule was EPA’s announcement that since mid-1995 it has been developing a “National Public Notices website for publishing public notices for all EPA actions subject to such notice requirements.” The agency expects the website to be completed and implemented by the end of the year, and it welcomed other permitting authorities to review the site for best practices. The announcement tells us, of course, that EPA began developing the site about six months before it issued its proposal to eliminate newspaper notice, but decided not to mention it.

The new rule follows the Obama administration’s 2011 executive order requiring federal agencies to “end unnecessary printing” by “making information available online for the public.”