Making Effective Comments About Proposed Permits and Licenses

If an application meets all legal requirements, DEQ is required to issue a license or permit. For that reason, most effective comments have one of two primary elements in common:

  • they request actions the agency has the legal authority to make; or,
  • they provide new information the agency has not yet considered.

A review of the statutes and rules that apply will often help the commenter develop his or her comments. (See Information about Utah Environmental Law and Standards for more information.) A hypothetical case may help to explain why.

Hypothetical Permit Application for XYZ Corporation

Legal Requirement to Receive PermitInformation Submitted by XYZ Corporation
  1. Pollutants discharged from the facility may not exceed specific concentrations listed in the rule. Utah Admin. Code Sec. R.1-2-3.
The permit application includes an engineering analysis that indicates that, given the type of pollutant and the type of equipment and barriers being used, all pollutants will be discharged at concentrations less than the specific concentrations listed in the rule.
  1. Financial assurance submitted must be large enough to close the facility in the event of bankruptcy. Utah Admin. Code Sec. R.4-5-6.
The permit application refers to a surety bond on file with the agency.
  1. Permitting the facility will not threaten human health or the environment. Utah Code Annotated Sec. A-B-C.
The permit application does not specifically address this provision.

Utah environmental statutes may be found on the Utah State Legislature’s Website.

Following are some examples of possible comments based on these hypothetical facts.

Comment 1

I don’t want any more sources of pollution in my neighborhood.

The agency has no authority to deny a permit based on a project’s popularity. These kinds of concerns are better directed to local zoning authorities or your legislative representative.

Comment 2

We need more jobs in our neighborhood so this permit should be approved.

Although the agency may, or in rare cases, is required to, consider the economic impact of a project, it usually doesn’t have authority to do so. If the agency doesn’t have authority to consider economic benefit, this kind of comment cannot affect the agency’s decision.

Comment 3

The application does not address human health and the environment, as required by Utah Code Annotated Sec. A-B-C; therefore, the permit should be denied.

Usually, the agency will consider general environmental standards to have been met if there are more specific regulatory standards that also address health and safety. This comment would probably not affect the agency’s decision for that reason.

Comment 4

There are four facilities already in the neighborhood that discharge pollutant z, and another would be harmful.

The agency may think only about the specific requirement in the rules in reviewing a comment like this; see comment No. 3.

Comment 5

There are four facilities already in the neighborhood that discharge pollutant z. Adding more pollutant z from a new facility will threaten human health and the environment in violation of Utah Code Annotated Sec. A-B-C so this permit application should be rejected.

This provides the agency with a possible legal framework for rejecting an application, but for the agency the analysis cannot end there. For example, is the specific standard for pollutant z intended to ensure that the more general human health and environment protection standard will be met? Or are the two standards completely separate? What do we know about the likelihood that the different sources of pollutant z will meet? Can we predict what the combined concentrations will be? Is there any evidence that a combined concentration poses a risk? A commenter is obviously not required to provide additional information about these kinds of questions, but any additional information would be helpful.

Comment 6

There are four facilities already in the neighborhood that discharge pollutant z. Since 5 parts per million is already at the top end of what is safe (according to whatever source the commenter provides) and since environmental sampling in our neighborhood has already revealed concentrations greater than that, adding new sources will endanger public health and the environment in violation of Utah Code Annotated Sec. A-B-C so this permit application should be rejected.

This kind of comment will almost certainly result in the agency taking a hard new look. It may not end up agreeing with the commenter’s technical analysis, but the information provided will be carefully analyzed and considered.

Comment 7

I found the following information showing facilities with similar equipment that discharge more than the specific concentrations in the rule.

This is new information that can help the agency make its decision.

Comment 8

The bond provided for financial assurance isn’t large enough.

The agency would probably not be able to use this comment since the commenter has provided opinion but no supporting information.

Comment 9

There is no documentation of closing costs for the facility.

This should be an effective comment, but not as effective as Comment No. 10.

Comment 10

A requirement that financial assurance be “sufficient,” as required by Utah Admin. Code R. 4-5-6, means that the applicant must provide detailed information about closure costs. No information has been provided with this application, therefore it should be denied.

This would be an effective comment that the agency would carefully consider. Please note however, that in some cases the agency performs its own evaluation of these costs. That evaluation would be part of the public record.

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