the Clean Air Act, Congress and the courts have consistently recognized the public's right to notice and an opportunity to comment before the level of allowable emissions was increased in See, ways that are potentially environmentally significant. e.g., Section 307(d); Buckeye Power v. EPA, 481 F.2d 162, 170-71 (6th Cir. 1973). Moreover, EPA has interpreted the permitting provisions of the Clean Water Act, which are generally similar to those under the Clean Air Act, as requiring public notice and an opportunity to participate in modifications as well as initial issuance." F. Conclusion. For all of these reasons, we conclude that without additional safeguards appropriate to the circumstances, the "minor permits amendment" provisions in proposed Sec. 70.7(2), if interpreted to allow changes to the emissions allowable under a permit based merely upon 7 days notice to the permitting authority, are unlikely to be upheld in court. require notice and hearing before revocation of UDAG agreement). In a ruling issued under the Clean Water Act, this office has previously concluded that the phrase "opportunity for public hearing" applies to modifications even when the statute explicitly applies that requirement only to actions that "issue a permit." Seg Cosple v. Pacific Legal Foundation, 445 U.S 198, 209 n. 9 (1980). In its opinion in the same matter, the Supreme Court concluded that on the particular facts presented, the Agency had adequately met its statutory obligation to provide an opportunity for public hearing on a permit modification that extended the permit's expiration date. Id. at 213–216. Court's willingness to read the hearing requirement as applying to modifications when the statute applied it only to "permit issuance" strongly points toward the conclusion that the courts would apply the requirement to modifications when a natural reading of the text would support such a reading. The This conclusion is consistent with the general presumption in the law that appropriate procedures for public participation apply to modifications as well as to initial issuance of a permit. See, siger 4 STEIN et al., ADMINISTRATIVE LAW Sec.41.06. Similarly, constitutional due process analysis turns on the nature of the interests affected, not on whether initial issuance or subsequent modification is involved. see, a.g., Matthews v. Eldridge, 424 U.S. 319 (1976). kewriting the Book on Wetlands Scientists Wash Hands of White House's Definition of Protected Areas All it took a year ago to draw yawns from the most dedicated bureaucrat was a mention of the name of the Federal Interagency Committee for Wetland Delineation. It was viewed then as just another obscure government panel, working on another obscure regulation. Now that panel is center stage in the environmental cauer celebre of Washington-a political dispute that tests President Bush's campaign pledge to preserve the nation's wetlands and underlines the painful tradeoffs of his administration whenever prime conservation and business interests collide. At issue is a technical manual drafted by the eight-member committee of scientists in 1989 to identify the kind of swamps, marshes and bogs worthy of protection from developers, timber companies and oil drillers. Known as the wetlands' "bible," the manual-uffed enough industry feathers that the four federal agencies with members on the panel agreed to refine it after taking public comment. But what was expected to be a technical exercise by scientists turned political earlier this year, after a White House policy group saw the revision of ther manual as a way to narrow the definition of wetlands and began to circulate various proposals that would have the effect of opening more swampy land to development. So far, different drafts of the manual circulated by the Environmental Protection Agency led to the resignation of one longtime committee member, prompted another panelist to "disassociate" himself from the process and caused the head of the U.S. Fish and Wildlife Service to issue a letter in which he formally refused to con cur. EPA Administrator William K. Reilly views the manual as too broad to enforce, guarding acres of wetlands that are rarely wet. He said he wants to tighten qualifications for a wetland, so that his agency can focus its resources on the Important ones. Yet Reilly represents a moderate Voice on the White House wetlands task force, a policy group chaired by Teresa Gorman, a special assistant to the president known for her probusiness stance. The White Hot body is a cu forum for the discussion of wetland restrict it was created ostensibly to implement Bush's "no. net loss of wetlands pledge. During the 1950s and 1960s, the nation lost 450,000 acres a year of wetlands-which help to filter water as it flows from land into bays and riv ers, moderate floods and serve as a resting and nesting habitat for many migratory birds. The current debate within the administration is said to be spiced with such colorful language as "the splash test" and the Uncle Dennis test." But it turns on dry, biological terms to determine how wet for how long a wetland must be. In the 1989 technical manual, wetlands were broadly defined as containing watery .vegetation, watery soils and surface or underground water for prolonged periods. The most conservative proposals by White House policy makers would open millions of wetlands to development, gording to environmentalists. The would extend protections only to acres. watery enough for ducks to splash in, inundated for at least 30 consecutive days a year and supporting plants able to survive in the wettest environment. Clinging to a more restrictive definition, the committee scientists see a wetland if it contains water 6 to 12 inches below the surface for 7 to 14 consecutive days and support vegetation able to survive half the time on dry land. It was an EPA proposal on vegetation that led William Sipple to quit the committee in February. Chief ecologist for the EPA's office of wetlands, Sipple said he would have engaged in "unethical behav ior" if he agreed to such changes in the manual without first getting input from the public. Last week, EPA ecologist Charles Rhodes jr. asked to have his name removed from any changes to the manual, complaining of "external pressures" and redrafting of techni cal provisions by "others with limited wetland experience." And Bruce Blanchard, acting director of the fish and wildlife service, sent a letter to the EPA, refusing to accept its proposal for a 14-day inundation threshold. He called it "confusing and technically indefensible." Assistant EPA Administrator La Juana S. Wilcher said the agency is pushing for a manual understandable to ordinary people who own land that is regulated as a wetland. She calls it "the Uncle Denmis test," named for her uncle in rural Kentucky. "We're trying to come up with something that everyone can live with," she said. I am responding to your letter of March 25, 1992, in which you and Senator Levin posed questions about my letter of March 10, 1992 to Department of Labor (DOL) Assistant Secretary for Policy Nancy Risque Rohrbach, and my March 19th testimony before your committee. 1. In replying to the different points of question one, I note that the Office of Information and Regulatory Affairs (OIRA) staff held conversations with some of the listed parties after media representatives obtained copies of my suspension letter to Ms. Nancy Risque Rohrbach on or about March 10th. Numerous members of the media, Congressional and Executive branches, and the public, including academics sought background information and comment on the issues raised in my March 10th letter and my March 19th testimony before your Committee. Therefore, my response to your questions includes communications that occurred only for the period between January 1, 1991 and March 10, 1992 the period before the issuance of the suspension letter. 1.a. Concerning communications regarding the proposed Occupational Safety and Health Administration (OSHA) rule entitled "Air Contaminants Standard in the Construction, Maritime, Agriculture, and General Industries" between OIRA staff and the following parties: (1) As I testified on March 19th, I recall informing White House counsel staff that I was preparing to send a letter to DOL suspending review of this rule. As I stated in my testimony, I can recall informing Jeffrey Holmstead, Associate Counsel to the President, that I was sending this letter. (2) I am informed that a conversation regarding this rule was held between OIRA staff and OSHA personnel during the period in question. The conversation, between an OIRA desk officer and an OSHA official, concerned the review process and not the substantive matters of the PEL rulemaking. |