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Will the Current EPA be Able to Effect Lasting Air Permitting Reforms?

Wednesday, January 16, 2019

Amy M. Marshall

Vice President, Americas Air Quality Practice Director, AECOM

The regulations, guidance documents, and policy memos that implement the Clean Air Act (CAA) have gotten longer and more complicated over the decades. This increased complexity has created greater compliance burdens for the regulated community, and the argument persists that it has stifled economic growth and not produced health benefits that equal or surpass the burdens imposed. Air quality has dramatically improved over the past 40 years, yet many current air quality standards are now at levels approaching the ambient background.

As emission sources have become better understood, emissions inventories have expanded and improved. But emission standards based on the lowest emitters in a source category can approach the practical limits of detection when improvements in measurement and monitoring are considered. Today, we have better information and analytical tools, and so the simple and conservative modeling and permitting approaches of a generation ago are outdated and no longer necessary to protect public health and welfare.

Smokestack

The current Administration has undertaken a series of actions to alter conservative policies related to the CAA’s new source review (NSR) permitting and air quality modeling programs. Some of these actions have been in the form of new memos that set out policy changes—the actual to projected actual memo, the project emissions accounting memo, the NAAQS back to basics memo, the revocation of the HAP major source once in, always in policy, and the draft ambient air guidance. Some have been determinations specific to a particular situation that serve to outline policy change, such as the Meadowbrook common control memo and the Limetree Bay memo on source reactivation and project aggregation. Only one action was made via rulemaking—the lifting of the project aggregation rule stay—and even this did not involve a regulatory change; rather, it was a preamble discussion about when projects should be aggregated for purposes of NSR permitting. These actions have been challenged at every step, and certain states have determined that they cannot (due to state-specific rules) or will not (due to their own interpretations) implement some of these new policies. However, some policy memos have been helpful to the regulated community because they allowed projects to move forward in the approval process more quickly than they normally would have by providing flexible permitting approaches.

Will the current EPA be able to effect lasting air permitting reforms now that we are two years into the current Administration and with only one rulemaking having been finalized? EPA is moving in this direction. The Agency has indicated they plan to undertake rulemakings to codify the revocation of the “once in, always in” policy and the project emissions accounting policy change. Legal challenges to these can be expected, so the final outcome remains uncertain. Nonetheless, there are so many gray areas involving air permitting and modeling that regulations can’t address every conceivable scenario.

The CAA’s implementation on a practical level will always involve policy and guidance documents, and there will always be new situations requiring regulatory determination to guide the permitting path. Future changes in administrations will create changes in priorities and in interpretations. Because many states have their own permitting rules and regulatory interpretations, it seems likely that we will never have a level playing field when it comes to EPA guidance and implementation.

Many studies have identified substantial improvements in air quality since the CAA was promulgated. Better emissions information, improved dispersion models, and more robust monitoring techniques all mean that the conservative permitting approaches used decades ago are no longer necessary to balance facility expansions and economic growth against preserving and improving public health and welfare. We should attempt to make useful changes permanent by supporting EPA with helpful technical and legal comments as they issue draft guidance documents and proposed rules. We should support communications with EPA on what regulatory and policy changes would be most helpful and still protect the environment. By focusing advocacy on the types of changes that remove layers of conservatism but do not allow for actions that significantly deteriorate air quality, we can create permanent policies that make sense and fit within the current regulatory and technical landscape.