In today's competitive environment, seeking out and leveraging available advantages may mean the difference between a thriving manufacturing complex and a shuttered, abandoned industrial property. Applied in an air permitting context, a flexibly constructed permit can offer an important advantage for your operations over those of your competitors. It may allow your facility to undertake process and product changes or introduce new technology, agilely responding to market trends, while your competition remains bogged down under one permitting or regulatory hurdle after another.
So how does a facility obtain a flexible permit? The following 10 strategies are gleaned from the authors' nearly 50 years of combined experience supporting hundreds of facilities in obtaining air permits that provide strategic advantage and operational flexibility.
- LOCATION, LOCATION, LOCATION. This oft-repeated mantra in the real-estate business applies equally in an air permitting context. While air permitting considerations in siting a project or facility often take a back seat to transportation, energy, supply chain and tax considerations, and of course political pressures, they should not be overlooked. A state air permitting agency's permitting approach can be the difference in a permit application process taking two years versus four months, depending upon the rigor of the state's air rules and the availability and experience of permit staff reviewing and processing the application. Furthermore, the complexity of the local air rules can significantly impact the associated permitting costs by up to hundreds of thousands of dollars in studies, consulting fees, and expenses.
Other location issues (outside of agency-related factors) can also weigh heavily on the permitting flexibility of a proposed project.
- Constructing and operating in an area designated as a nonattainment area, or formerly designated as a nonattainment area (and now identified as a "maintenance" area), often means having to consider additional State Implementation Plan (SIP) regulatory obligations, including Reasonably Available Control Technology (RACT).
- With respect to Prevention of Significant Deterioration (PSD) regulations, major sources or major modifications to major sources in the few remaining states and permitting jurisdictions that have delegated PSD programs (as seen in Figure 1) will trigger more prominent participation by U.S. EPA in the permitting process, including consideration of the Endangered Species Act (ESA) and National Historic Preservation Act (NHPA) obligations.
- Similarly, for major sources or major modifications to major sources near Class I areas (those within approximately 300 kilometers of the source), a more challenging air quality analysis may be required as a component of the application process. (Note that Class I areas can be federally designated [like those shown in Figure 2], or established by states or tribes.)
- An increasingly important factor in the permitting process applies to sources or projects locating in or near environmentally overburdened, underserved, and economically distressed communities (environmental justice [EJ] areas). Such projects may be subject to additional technical analysis and public outreach as part of the permitting process.
Faced with a construction project, the shrewd environmental manager will scour applicable state and local rules for the permit exemption, permit by rule (PBR), registration permit, general permit, construction waiver, or combination thereof that offers advantages in permit timing.
One cautionary note-avoiding PSD through the use of more complex procedures such as emissions netting, or the use of 2002-era New Source Review (NSR) reform techniques such as the demand growth exclusion, can add significant detail and documentation to the issued construction permit.
If a company's environmental resources are thin, and it relies on the agency to specify its applicable requirements, it may favor the latter. In this way it can more easily identify applicable requirements, and as importantly, the non-applicable requirements. On the other hand, if the facility wishes to have flexibility in its compliance demonstration methods, operating scenarios, or even fuels, and if it has the environmental resources to ensure compliance in the aftermath of changes in these areas, it may prefer the broad-brush approach. Regardless of the way the permit identifies applicable requirements, the source should have clarity regarding applicable provisions for a particular regulation in its permit (and the basis for determination of non-applicable provisions in supporting documentation).
The formula concept is not limited to surface coaters, but can be applied to any manufacturer that processes a range of raw materials, each with its own raw material-specific emissions signature (e.g., batch chemical manufacturers).
Startup, shutdown, and malfunction (SSM) events should be scrutinized, particularly when pollution control equipment is part of the facility design. Many agencies will consider and include an alternative SSM emissions limit in a permit to address known and anticipated events. In fact, the plywood and composite wood products NESHAP (40 CFR Part 63 Subpart DDDD) applies this concept with prescribed allowances for control device bakeouts, washouts, media replacement, and replacement of corroded parts. Facility-specific allowances in a construction permit will be more likely to provide operational flexibility. Be aware that EPA has announced its final SIP call rulemaking to 36 states/ permitting agencies that currently have "blanket" allowances for excess emissions during SSM events, so expect increased scrutiny of these requests in the permitting process.
It can be difficult to avoid a short-term emission limit even in a non-PSD permit. In the case of particulate matter (PM), for example, many SIPs have broad process weight rate rules that dictate a short-term (hourly) emission limit for PM. "The devil is in the details" regarding the associated compliance technique and determining the appropriate method to demonstrate compliance with an hourly emission limit. Other times, the limiting averaging period for a pollutant may be the annual limit restricting major source or major modification applicability. In these cases, EPA has published numerous guidance documents (including a foundational June 13, 1989 document, Guidance on Limiting Potential to Emit in New Source Permitting) that dictate the form and format of the appropriate emission limit, stating, "for limitations to be enforceable as a practical matter, the time over which they extend should be as short as possible and generally not exceed one month."1 An hourly limit may not be at all appropriate or necessary in these instances.
In the end, every emission limit (and operational limitation) in the construction permit should have a clear and concise method for compliance.
Next, what if a permit writer inserts into a draft construction permit a source testing condition that is not pursuant to an NSPS or a NESHAP? Scrutinize the language of the condition carefully. Strive for as broad of language as possible in the permit, and leave the testing methodology details to the testing protocol that will be required prior to the test.
Also, what if a constructed unit is not operating for an extended time period? The best way to avoid an unintended consequence from non-operation is to review each condition that applies during operation and ask yourself, "Would facility personnel grumble if they had to comply with this condition when the unit or facility is not operating?" Adding the italicized text to the following example condition can spell relief, allowing staff flexibility to spend time in more productive ways: "The permittee shall record the opacity of Boiler 3 once per day of boiler operation."
And finally, what if things go awry, as they nearly always do at some point? Nearly every construction permit will require deviation reporting to the agency when an emission limit or a term or condition of the permit is exceeded/violated. In the broadest sense of operating flexibility, fewer terms and conditions in a permit mean fewer opportunities to deviate.
While not all the above strategies will work for everyone, applying one or more of these strategies can make you a savvier permit negotiator and increase your ability to operate flexibly, with fewer permit-induced constraints.
1 For other pollutants, like GHGs subject to BACT, EPA goes even further, suggesting a long-term (annual) averaging period might be most appropriate.