A Quarterly Publication of POWER Engineers Environmental SUMMER 2018
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CURRENTS
A Quarterly Publication of POWER Engineers Environmental SUMMER 2018
2 4
A CLEARER VIEW FROM THE TRENCHES
Understanding EPA’s new guidance Tracking sage-grouse calls for
for NSR air permitting “Dancing in the Dark”
CURRENTS
CURRENTS
SUMMER 2018
Volume 23, Issue 2
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Special thanks to former Zephyr president,
Joe Zupan, as he ends his tenure as longtime
Currents editor. Thank you for your guidance
and support over the years, Joe, and we wish
you all the best in your next adventures.
LEADERSHIP
INSIGHTS
Introducing POWER Engineers
Rob Reid | Environmental Division Manager
W
elcome to our first is- culture, openness, honesty, teamwork and POWER and Zephyr will be able to make
sue of Currents, now a pride in creating quality work. When you a big difference to the environmental
as POWER Engineers. put all those things together, it makes for challenges you face.
You’ve undoubtedly a successful merging of companies and,
noticed, Currents has undergone a few most importantly, it adds significant value Maria Gou, who had ably written this
changes to reflect the broader perspec- for you. section in the past, is now the Business
tives of the combined Unit Director for Air
POWER and Zephyr
Environmental Division Currents has been in circulation for Quality and Related
Environmental Services.
team. Currents has been
in circulation for more
more than 20 years at Zephyr and In the place of her usual
column, you’ll find a va-
than 20 years at Zephyr
and it has been our com-
it has been our commitment from riety of insights from the
POWER Environmental
mitment from the start to
continue providing this
the start to continue providing this and executive team, in-
cluding Maria herself.
informational and techni-
cal resource.
informational and technical resource. We are confident that you
will continue to receive
As many of you know, POWER acquired the same great personal service with your
Zephyr on January 7 and I can’t say enough I am the Environmental Division Manager at same contacts and we look forward to your
good things about our newest colleagues POWER. I have been in the environmental getting acquainted with other POWER staff
and how delighted we are to have them consulting business continuously for more and our expanded capabilities.
join our team. From the start, we knew than 40 years and I have had the privilege
we were a great fit, sharing many of the of working with a number of former Zephyr Sincerely,
same business philosophies and culture staff with prior companies. Environmental
characteristics: putting the client’s needs is what I know and love and I’m so excited
and success first, an employee-centric to see how the combined resources of
About POWER Engineers
POWER Engineers is a global consulting engineering firm specializing in the delivery of integrated solutions for energy, environmental,
food and beverage facilities and federal markets. POWER Engineers offers complete multidisciplinary engineering, environmental and
program management services. Founded in 1976, it is an employee-owned company with more than 2,500 employees and 45 offices
throughout the United States and abroad.
POWER ENGINEERS 1
EPA Clarifies Emissions
Accounting Procedures
for Determining NSR
Permitting Requirements
Lou Corio
Senior Air Quality Scientist
H
istorically, permitting under revisions and interpretive policy and guid-
the Clean Air Act (CAA) New ance from EPA. Historically, controversy
Source Review (NSR) pro- has followed the term “significant emis-
gram—either the Prevention sions increase,” especially regarding the
of Significant Deterioration (PSD) or the determination of future, post-construction
Nonattainment New Source Review (NNSR) emissions. A project showing a significant
rules—has been a challenge for most permit emissions increase is categorized as
applicants. EPA recently issued clarifying a “major modification,” triggering major
guidance for conducting NSR program NSR requirements.
applicability assessments that could
embolden more permit applicants to seek to In July 1996, EPA proposed revisions to
justify their projects as minor modifications, the NSR rules, including the procedure for
thereby avoiding the significant, potentially determining whether a proposed project
project-delaying requirements for obtaining at a major source results in a significant
a PSD or NNSR permit. emissions increase. In December 2002,
EPA finalized these revisions as part of
Want to know more about NSR? Historical Background a suite of NSR rule revisions, known as
Check out our helpful NSR glossary The NSR permitting process was formalized the “NSR Improvement Rules.” Under the
and timeline. www.powereng.com/nsr through regulations promulgated by EPA in NSR Improvement Rules, a source owner
August 1980, along with subsequent rule or operator (“source”) could evaluate
2 C u rren t s
A better process. EPA’s new clarifying guidance for NSR program applicability may prove to be a significant
time and cost savings for permit applicants.
an emission increase by subtracting to be included under Step 1 of a major provide guidance for sources that have
actual (i.e., recent past) annual emis- modification determination. However, EPA used or intend to use projected actual
sions from projected actual (i.e., future) never took final action on that proposal. emissions to determine if resulting
annual emissions, although the approach emissions increases are “significant.” EPA
for determining the latter seemed open Recent EPA Guidance clarified that when a source performs such
to interpretation. In 2017, EPA conducted a review of the a pre-project NSR applicability analysis
agency’s implementation of preconstruction in accordance with the calculation
The NSR Improvement Rules also further permitting requirements under the CAA procedures in the regulations, and
defined the major modification determi- NSR provisions in accordance with follows the applicable recordkeeping and
nation procedure as a two-step process, “presidential priorities for streamlining notification requirements, then the source
requiring a showing of 1) a significant regulatory permitting requirements.” has met the pre-project obligations of
emission increase of a regulated NSR Because of this review, EPA identified the regulations, unless there is a clear
pollutant, and 2) a significant net emission various elements of the NSR regulations and error (e.g., the source applies the wrong
increase of that pollutant for a proposed associated EPA policies, including those significance threshold). As stated by the
project that is considered a physical change for major modification determinations, agency, “The EPA does not intend to
or change in the method of operation of a that have created uncertainty and substitute its judgement for that of the
major source. EPA clarified that any other confusion for both permit applicants and owner or operator by second guessing the
emissions increases and decreases at the permitting agencies. To address these owner or operator’s emission projections.”
source that are contemporaneous with the findings, EPA issued memoranda on
proposed project be included in the “net December 7, 2017, and March 13, 2018, In its March 13, 2017, memorandum,
emissions increase” determination under clarifying their current understanding EPA provided clarification regarding the
Step 2. Contemporaneous is defined as of emissions accounting under the accounting of emissions decreases at a
being in the period between the date five NSR regulations for proposed projects source as part of the major modification
years before construction commences and at major sources. assessment process in determining if a
the date operation commences. project will result in a significant emissions
In noting ongoing disputes in the U.S. courts increase. EPA’s interpretation of NSR
In September 2006, EPA proposed to al- in recent NSR enforcement cases, and the regulations allow a source to “project net,”
low a source to “project net,” i.e., to allow resulting uncertainty regarding approaches provided the increase(s) and decrease(s)
emissions decreases, in addition to emis- to assessing NSR applicability, EPA issued are part of a single project. For a project
sions increases, associated with a project the December 7, 2017, memorandum to EPA Clarifies >>> continued on page 8
POWER ENGINEERS 3FROM THE
TRENCHES
Tracking Sage-Grouse Calls for “Dancing in the Dark”
Ben Bainbridge | Biologist
W
hat kind of music do conservation officers (i.e., game wardens)
sage-grouse like? The way at a BLM fire-crew bunkhouse to plan
the males are showing for the night ahead and grab supplies.
off, maybe a little club My wonderful wife made chocolate chip
music? Perhaps a two-stepping coun- cookies for the evening, making me a very
try song so they can grab the best hen popular volunteer.
for a dance? So, “What kind of music
do sage-grouse like?” is not actually the Then we piled into an IDFG truck and
question I was helping to answer at 3 headed off into the dark night on the sage-
a.m. while trapping greater sage-grouse brush sea. Did I mention how dark it is out
(Centrocercus urophasianus), but it made there? One unlucky biologist sat out in the
for good conversation. cold on a special elevated chair in the bed
of the truck while using binoculars and a
In the spring of 2014 and 2015, I was spotlight to see the eye reflection of a rest-
volunteering with a survey for the Idaho ing sage-grouse.
Department of Fish and Game (IDFG) with a Picture perfect. Biologist Ben Bainbridge takes advantage
goal to capture sage-grouse of a photo op with a willing sage-grouse participant.
in support of GPS tracking
studies. Sage-grouse, both
Apparently, the sound of a My moment of action arrived when
males and females, commonly
sleep on or close to their
truck approaching in the the biologist with the spotlight
signaled he had found a bird.
mating grounds during the
mating season.
dark scares grouse, but Garth Wait—scratch that, it’s just a
pronghorn. But not too much lon-
Captured birds were fitted
Brooks or Metallica does not. ger we were on a bird—a mature
male. So I hopped out of the truck,
with backpack style GPS grabbed my giant net, and held on
transmitters that provided feedback on an Upon finding a bird, the biologist with the to the jukebox on wheels while it drove off
individual bird’s movements. Biologists spotlight signaled for the truck to drive through the mature sagebrush toward the
with IDFG and the Bureau of Land straight at the bird while the other two bi- blissfully resting rooster.
Management (BLM) could then follow ologists got out of the cab and retrieved
these birds on seasonal migrations, or large hoop nets on 8- to 10-foot-long poles. As the truck got closer, I moved away from
monitor females for nesting habitat and That was my job in this endeavor. the truck, stumbled through the sagebrush
nesting success. and then rushed the formerly sleeping bird
Here’s where the music comes in—large with my net held out like Elmer Fudd! All
Sage-grouse tracking studies like this speakers were taped to the hood of the this was done with the music blaring into
provide crucial information for the con- truck and blasted our music into the night the night and never turning on the truck’s
servation and management of this iconic to mask the sound of the approaching truck. headlights or my own headlamp. Did I
western bird. On the other hand, sage- The music was left on all night, so we just mention how dark it is out there?
grouse trapping just makes for a very plugged in an iPhone and set it to shuffle for
interesting night. the night. Apparently, the sound of a truck Success! Once I netted the bird, I jumped
approaching in the dark scares grouse, but on it like a fumble back in my football days
I met up with a team of four biologists and Garth Brooks or Metallica does not. (but careful not to crush it). At this point,
4 C u rren t ssomeone killed the music so that the sci- grand finale like you see on the news
ence part of this expedition could begin when someone releases a bald eagle back
in earnest. into the wild. I carefully placed the bird An Iconic Western Bird
back on the ground and slowly tip-toed
Extricating seven pounds of angry, flapping, back to the truck hoping he wouldn’t take
fighting male sage-grouse from a giant net
is no small task, but the team persevered.
flight and fly into a rock, or worse, the side
of the truck. 13
states populated by sage-grouse at one
I held the bird like a football with the head
tucked back under my right arm, the feet It would be a pretty funny scene to anyone point, plus 3 Canadian provinces (now
in my right hand, and the wings held in watching from afar—a group of biologists occupy only 55% of that area)
place against my body and with my left driving and stumbling around in the
hand over the bird’s back. Once secured, dark with large nets, no headlights, no
the bird was fitted with a GPS tracker and
measurements such as weight, age, sex
discernable pattern, a spotlight moving
all around like that giant eye in “Lord 16
million population at their peak
and a blood sample from the toe were tak- of the Rings,” all while blaring random
en for future study. music on the hood of the truck. But hey, (now about 500,000)
it works. And the birds don’t seem to
Before release, this particular bird was care what kind of music we played,
nice enough to sit calmly in my arms for
a photo. Releasing this guy was not some
although there was better luck with good
ol’ country music! 2010
the year they were listed as a candidate
for protection under the Endangered
Species Act, now they are considered a
“sensitive species” by the Bureau of Land
Management and U.S. Forest Service
7
pound males (the largest North
American grouse species)
1/2
mile… how far away you can hear
their “booming”… when they inflate
large air sacks and expel them in a
loud popping noise. Males return to the
same “leks” every spring, a designated
Flocking around. Each spring, the sagebrush country of western North America fills with sage-grouse for area where they display for females to
compete for mating rights.
breeding season. The males proudly display their white chest and head feathers to attract a mate.
POWER ENGINEERS 5D.C. Circuit regarding: non-groundwater dictate decisions of the other that could
releases of CCR requiring remediation; affect the applicability of, or compliance
NEWS
allowing the use of CCR in constructing with, relevant air regulatory requirements.
final covers for CCR units; and allowing Control is established only when an entity
participating states and EPA to allow has the power to make decisions regarding
BRIEFS
alternative performance standards to air emissions-generating activities.
address releases to groundwater from CCR Contact: Lou Corio, (410) 312-7912
units. EPA anticipates taking action on lou.corio@powereng.com
the proposed rule changes in June 2019.
Other potential revisions, should the EPA New SNURs Requirements Considered for
act on them, will be proposed in a Phase Asbestos Regulation
II rulemaking by September 2018 and On June 11, EPA published proposed
Stay informed on finalized by December 2019. requirements under the Toxic Substances
Contact: Betty Moore, P.G. Control Act’s (TSCA) Significant New Use
environmental regulatory (512) 879-6622 Rule (SNUR) regulating manufacturing
betty.moore@powereng.com (including importing) or processing
news and updates asbestos for certain uses that the EPA has
Additional Air Quality Designations for the identified as no longer “ongoing.” This
2015 Ozone NAAQS Completed proposed SNUR would require entities
EPA completed additional 2015 ozone that intend to manufacture or process
NATIONAL NEWS national ambient air quality standards any form of asbestos to notify EPA at
EPA Proposes Cost-Benefit Analysis Reform (NAAQS) area designations on April 30, least 90 days before commencing such
On June 13, EPA issued an Advance Notice 2018. Approximately 85 percent of the manufacturing (including importing) or
of Proposed Rulemaking (ANPRM) seeking country had previously been designated (as processing and obtain approval for such
public comment on whether and how to attainment/unclassifiable or unclassifiable) activities. The proposed rule will allow
increase consistency and transparency on November 6, 2017. Initial air quality EPA to receive advanced notice of any
in considering costs and benefits in the designations have now been completed for future manufacturing or processing that
rulemaking process. EPA promulgates most of the United States. The final rule may produce changes in human and
regulations under federal environmental does not include eight counties in the San environmental exposures, and to ensure
statutes such as the Clean Air Act (CAA) Antonio, Texas, metropolitan area. EPA that an appropriate determination has
and Clean Water Act (CWA). These statues will complete the designations for these been issued prior to the commencement of
typically allow considerations for the counties by July 17, 2018. The initial such activities. Comments on the proposed
financial costs when setting pollution designations are summarized in 40 CFR rulemaking are due on August 10, 2018.
standards, but in past rulemaking Part 81 for each state. Contact: Michele Foss, REM
proceedings these cost analyses have been Contact: David Castro, (512) 579-3820 (281) 668-7342
perceived as inconsistent. EPA is requesting david.castro@powereng.com michele.foss@powereng.com
comments regarding these perceived
inconsistencies in the rulemaking process, EPA Issues New Policy on “Common NGOs Challenge DOI’s New Interpretation
and on how to create a regulatory approach Control” for NSR and Title V Permitting of “Incidental Take” Migratory Bird
to fix these issues. Public comments were In a letter dated April 30 to the Pennsylvania Treaty Act
due July 13. Department of Environmental Protection On May 24, multiple environmental orga-
Contact: Steven Babler, (913) 402-4215 (PADEP), EPA outlined its new policy on nizations collectively filed two complaints
steven.babler@powereng.com determining which facilities or entities in the U. S. District Court for the Southern
should be considered part of the same District of New York seeking to overturn
New Rules and Alternative Standards source for the purposes of New Source recent legal and policy guidance issued
Proposed for Addressing Coal Review (NSR) and Title V permits. One by the U.S. Department of the Interior
Combustion Residuals of the criteria in the NSR rules stipulates (DOI) and U.S. Fish and Wildlife Service
Earlier this year, EPA proposed Phase I that entities may be considered part of the (USFWS). On December 22, 2017, the
revisions to the Coal Combustion Residual same source if they are under common DOI issued a Memorandum regarding the
(CCR) rules (40 CFR Part 257). The three control. EPA clarified that the “common Migratory Bird Treaty Act (MBTA) and its
main goals of the proposed revisions control” criteria should be based on applicability to “incidental takings” of
are to address items repealed by the the power or authority of one entity to migratory birds that could occur during
6 C u rren t sthe development, construction, or oper- bulbs, mercury vapor bulbs, and batteries grant recipients cannot be parties that are
ation of otherwise lawful activities. The that are currently covered under the uni- potentially liable for the contamination at
Memorandum establishes that criminal versal waste program. The universal waste a brownfield site.
liability under the MBTA should not be program eases the regulatory burden of Contact: Dave Sorrells, P.E.
applicable to incidental takes but only managing certain hazardous wastes to (512) 879-6626
apply to actions whose primary purpose reduce the quantity of these wastes going dave.sorrells@powereng.com
is the taking or killing of migratory birds, to municipal solid waste landfills.
their nests, or their eggs. Contact: Bonnie Blam, CSP U.S. Fish and Wildlife Service Delisting
Contact: Lance Gillaspie, (281) 668-7343 (512) 579-3817 the Black-Capped Vireo
lance.gillaspie@powereng.com bonnie.blam@powereng.com The USFWS is removing the black-capped
vireo from the Federal List of Endangered
EPA Proposes to Rescind RMP Provisions OSHA Delays Enforcement of Parts of and Threatened Wildlife because it has
Amended Under Obama Administration Beryllium Standard recovered and no longer meets the defini-
On May 30, EPA announced that it is On May 9, the Occupational Safety and tion of endangered under the Endangered
proposing to rescind several key Risk Health Administration (OSHA) confirmed Species Act. The black-capped vireo was
Management Program (RMP) amendments they will begin enforcing certain require- listed endangered by USFWS in 1987 due
previously adopted on January 13, 2017, ments of the final rule on occupational to habitat loss and nest parasitism. At
as well as modifying provisions related exposure to beryllium in general industry, the time it was listed, there were only an
to local emergency coordination and construction, and shipyards. Specifically, estimated 350 adult birds reported within
emergency exercises. Most of the provisions enforcement has begun for the permissible the known breeding range located within
the EPA is proposing to rescind with this exposure limits in the general industry, Texas, Oklahoma, and Mexico. Through
rulemaking focus on requirements for construction, and shipyard standards; and conservation efforts by state and federal
third-party compliance audits, technology for general industry only, the exposure agencies alongside private landowners,
and alternatives analyses for Program 3 assessment, respiratory protection, medical the black-capped vireo has made a full
processes, and scopes of hazard reviews. surveillance, and medical removal provisions. recovery with a healthy population and
Other modifications to the rule under However, OSHA will not enforce any provided habitat.
consideration involve adding flexibility for other ancillary provisions of the beryllium Contact: Bob Fisher, (281) 668-7349
facilities to meet exercise requirements standards for general industry (29 CFR robert.fisher@powereng.com
and enhancing security measures. 1910.1024) until June 25, which OSHA
Facilities will be required to provide plans to extend to December 12, 2018. EPA Proposes Petroleum Refinery
local response organization(s) with their Note that OSHA previously proposed Rule Changes
emergency plan and contact information, removing the ancillary requirements from On April 10, EPA proposed amendments
and to request an opportunity to meet with the beryllium standards for the construc- to Refinery MACT 1 and 2 and NSPS
the response organization to discuss these tion and shipyard industries. Subpart Ja for petroleum refineries. The
materials. Comments on the proposed rule Contact: Molly McKenna amendments to Refinery MACT 1 included
are due on or before July 30. (512) 579-3837 new requirements for maintenance vents,
Contact: Natasha Halageri molly.mckenna@powereng.com pressure relief devices (PRDs), delayed
(281) 668-7345 coking units (DCUs), fence line monitoring,
natasha.halageri@powereng.com EPA Announces $15.7M in Supplement and flares. The amendments to Refinery
Funds for Contaminated Brownfield Site MACT 2 addressed continuous compliance
Aerosol Cans Proposed for Universal Cleanups Across the U.S. alternatives for catalytic cracking units
Waste Regulations On June 7, EPA announced the selection and startup and shutdown provisions for
In March, EPA proposed adding hazardous of 33 high-performing Revolving Loan catalytic cracking units and sulfur recovery
waste aerosol cans to the universal waste Fund (RLF) grantees located in 20 plants. The NSPS Ja amendments included
program. Universal waste is regulated different states. These states will receive corrections and clarifications to provisions
under the Resource Conservation and approximately $15.7 million in supple- for sulfur recovery plants, performance
Recovery Act (RCRA). If the proposal is mental funding to help their communities testing, and control device operating pa-
finalized, managing spent and discarded continue the work to carry out cleanup and rameters. Comments were due on May 25.
aerosol cans will be much simpler for all redevelopment projects on contaminated Contact: Tiffany Dillow, REM
industries, including the retail sector. The brownfield properties. States receiving the (410) 312-7903
collection and recycling of aerosol cans highest funding are Maine, Connecticut, tiffany.dillow@powereng.com
will be encouraged, similar to fluorescent New York, Georgia, and Wisconsin. RLF News Briefs >>> continued on page 8
POWER ENGINEERS 7News Briefs >>> continued from page 7
STATE NEWS Texas metropolitan area. In the EPA’s emission levels) by 2025.
CDPHE Working with Industry to Reduce March 19 response to Texas’ designation Contact: Lou Corio, (410) 312-7912
Hydrocarbon Emissions in Colorado recommendations, EPA stated their intent lou.corio@powereng.com
In June, discussions began on developing to designate the San Antonio area counties
statewide emission reduction strategies in of Atascosa, Bandera, Comal, Guadalupe, PADEP Issues New and Modified General
an effort led by the Colorado Department Kendall, Medina and Wilson as attainment/ Air Permits for Oil & Gas Facilities
of Public Health and Environment unclassifiable. Additionally, EPA intends to On June 9, PADEP published a notice
(CDPHE). The CDPHE is seeking to reduce designate all or portions of Bexar County of issuance in the Pennsylvania Bulletin
hydrocarbon emissions in the Denver as, at best, unclassifiable. EPA will consider for the modified GP-5 for Natural Gas
Metropolitan, Northern Front Range Ozone any additional information submitted by Compression Stations, Processing Plants,
Non-Attainment Area (DMNFR) to avoid Texas before completing the designations for and Transmission Stations and the new GP-
it being reclassified from “moderate” to this area. As required by a March 12 District 5A for Unconventional Natural Gas Well Site
“serious,” which would drastically reduce Court order, the eight San Antonio area Operations and Remote Pigging Stations.
major source and major modification counties are to be designated by July 17. The effective date for both permits is
permitting thresholds. The resulting Contact: David Castro, (512) 579-3820 August 8, 2018. Modifications to the GP-5
CDPHE-driven “Statewide Hydrocarbon david.castro@powereng.com include electronic submission of certain
Emission Reduction” or “SHER” team has notifications, reporting requirements for
members joining forces from the oil and Maryland to Join the U.S. blowdown and venting events, and revised
gas industry, NGOs, and local governments Climate Alliance emission limits for stationary natural gas-
with a goal to develop statewide emission In April, the Maryland General Assembly fired internal combustion engines. The new
reduction strategies, including potential passed a bill requiring Maryland to join the GP-5A applies to well site facilities that
additional controls in the DMNFR. The U.S. Climate Alliance. At the start of this are newly installed or modified after the
SHER team will provide a progress update year’s legislative session, Governor Larry effective date, and the PADEP Exemption
in January 2019 and present its final Hogan had expressed interest in having Category No. 38 for such facilities is revised
recommendations in January 2020. Maryland join the Alliance, so he is expect- to include a more restrictive site-wide
Contact: Pete Stevenson ed to sign the bill into law this summer. volatile organic compound (VOC) emission
(512) 579-3805 Maryland will join 14 other states and limit and a new individual source methane
peter.stevenson@powereng.com Puerto Rico as Alliance members, agreeing emission limit. The modified GP-5 and new
to implement policies that advance the GP-5A permits and supporting documents
Ozone Designation for San Antonio goals of the 2015 Paris Climate Change are available on PADEP’s website.
Expected July 2018 Agreement. Maryland, on track to meet its Contact: John Schmelzle
On April 30, EPA completed the 2015 own goal of reducing greenhouse gas emis- (717) 942-1203
ozone NAAQS area designations for most of sions 20 percent by 2020, is in a strong john.schmelzle@powereng.com
the United States. The final rule does not position to meet the Alliance’s goal of a
designate eight counties in the San Antonio, 26 to 28 percent reduction (below 2005
EPA Clarifies >>> continued from page 5
involving both existing and new units, this example, in determining if a decrease can modifications at major sources, assuming
emissions accounting is to be done on a be included in Step 1, EPA stated that they the local regulatory agencies and/or affected
unit type-by-unit type basis. will not preclude a source from reasonably public don’t challenge the interpretation
defining its proposed project broadly, to and use of this guidance. Regarding the
Potential Implications reflect multiple activities. Also, EPA said potential for challenges, EPA reminds
The recent EPA guidance is intended to that they do not interpret the existing applicants that the guidance “does not
reduce confusion regarding the proper regulations as requiring that a decrease change or substitute for any law, regulation
approach for conducting NSR applicability be creditable or enforceable as a practical or other legally binding requirement and
assessments, while appearing to provide matter to be considered in Step 1. is not legally enforceable.” Also, EPA still
more flexibility to permit applicants in intends to review each permitting project
the accounting of emissions changes Ultimately, the recent guidance should re- on a case-by-case basis.
associated with a proposed project. For duce permit review/approval timeframes for
8 C u rren t sAN ATTORNEY’S
PERSPECTIVE
Important Federal NSR Guidance and Its Impact on State Run
Preconstruction Permitting Programs
Scott R. Dismukes | Eckert Seamans Cherin & Mellott, LLC
T
wo recent Environmental if such increases are significant, thus the project were caused by the project, and
Protection Agency (EPA) triggering NSR permitting. Historically, they do not intend to initiate enforcement
interpretive memos regarding EPA has pursued enforcement based on unless post-project emissions data indicates
New Source Review (NSR) its evaluation of a project’s predicted that a significant net increase occurred.
source permitting have spurred great emission increases rather than actual post-
interest because they address the scope construction emissions and regardless Projections must consider relevant informa-
of information considered in conducting of the permitee’s reasonable projections. tion such as historical operating data and
NSR applicability analysis. A December EPA’s December 12, 2017, memo now company’s representations, projections
12, 2017, memo expresses the EPA’s defers to the permitee’s projections of activities and filings with regulatory
intent to restrict enforcement efforts when and expands their allowable content. agencies. Historically, EPA has asserted
assessing post-project actual emissions, Historically, the “Projection” compared NSR permitting can be required based
rather than presuming causation or second- past actual emissions (average of 24 on EPA’s own projections, regardless of
guessing a permittee’s own pre-project consecutive months over prior 10 years) the reasonableness of permitee’s projec-
applicability projections. tions; and, that the permittee
This memo stands in cannot consider an intent to
contrast to a recent Federal Currently, we anticipate a manage emissions post-proj-
Appeals Court decision ect. Significantly, the December
upholding EPA’s authority meaningful reduction in federal 12th memo indicates that a
enforcement actions against
to take enforcement action permittee can now consider
with respect to pre-project as “relevant information” their in-
preconstruction projections and
applicability analysis. Next, tent to manage actual emissions
EPA’s March 13, 2018, post-project to avoid triggering a
memo impacts “emissions
netting” with respect a similar reduction in scrutiny significant increase.
to project emissions
accounting. While State
of post-project emissions. EPA’s March 13, 2018, memo
regarding Project Emissions
agency receptivity to Accounting further impacts the
these developments remains to be seen, with projected future actual emissions NSR applicability analysis. Projects not
these memos create an opportunity to following the modification. Since 2002 otherwise excluded from NSR applicability
strategically consider or reconsider the the NSR regulations have provided that (e.g., routine maintenance and repair or
viability of potential projects. when the projection does not show a an increase in hours of operation not oth-
significant emission increase, it does not erwise limited) are required to conduct a
The CAA establishes the NSR permitting require a permitting action and does not two-step analysis to determine whether
program for new major stationary sources need to be enforceable or receive permit there is a significant emissions increase.
and major modifications of existing major authority review. Step 1 analyzes whether there is a sig-
sources by requiring permitting prior to nificant increase in actual emissions
commencing construction. This program EPA’s December 12th memo indicates that associated with the individual project it-
requires facilities undertaking a physical EPA will not second guess a permitee’s self. Historically, “step 1 analysis” only
change or change in the method of projections and, provided they comport considered emission increases and not
operation to estimate expected emission with regulatory requirements, they will not associated emission decreases. If step 1
increases from the project to determine presume that emission increases following Perspective >>> continued on page 10
POWER ENGINEERS 9PRSRT STD
U.S.
POSTAGE PAID
AUSTIN,TEXAS
Corporate Headquarters PERMIT NO.
3940 Glenbrook Dr 1718
Hailey, ID 83333
CURRENTS
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Perspective >>> continued from page 9
suggested a significant increase, then step Currently, we anticipate a meaningful
2 evaluated whether there would be an reduction in federal enforcement actions
associated significant increase for the against preconstruction projections and a
whole facility. similar reduction in scrutiny of post-project
emissions, given the potential to consider
Only at step 2 could a facility consider emission reductions in step 1 and to
creditable decreases of emissions by en- manage post-construction emissions.
gaging in netting analysis. The March 13th Whether state permitting agencies adopt
memo indicates that decreases may be these approaches remains to be seen. In
considered in step 1 and are not required that regard, knowing the state program
to be enforceable or creditable. is critical for a facility contemplating a
significant project, as is working with
Most states require preconstruction a team familiar with the permit writing
permits for both minor and major sources. process and developing a reasoned, well-
These memos may significantly change documented approach to projecting
the approach a facility takes in conducting future actual emissions. Permittees should
its projections and provides fodder for be mindful to not overreach, to avoid
significant discussion points with the state risks associated with future changes
permitting agency. However, states with in administration, and potential
EPA approved implementation plans are subsequent post-project permit challenges
not required to follow federal guidance. by citizen groups.
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