U.S. EPA Proposes Flexible Air Permitting Rule
By Jennifer Thompson, Attorney, Bingham Greenebaum Doll LLP
The United States Environmental Protection Agency (“U.S. EPA”) has proposed revisions to the Title V and New Source Review (NSR) Programs to make permits more flexible and seeks comment on its proposed modifications printed in the September 12, 2007 Federal Register. The revisions are to provide equal or greater environmental protection as achieved by conventional permitting while at the same time providing protection under the permit shield for certain physical and operational changes made without further permitting review or approval. The proposed revisions stem from a review of a pilot permit program regarding flexible air permits started in 1993. The proposed strategies include but are not limited to permitting of: (1) Alternative Operating Scenarios; (2) Approved Replicable Methodologies; (3) Advance Approved Changes; and (4) Green Groups, all of which are discussed in more detail below:
Alternative Operating Scenario (“AOS”) – Allows changes to existing emission units by including in the permit how the permittee would continue to assure compliance with the applicable Clean Air Act Requirements.
Approve Replicable Methodology (“ARM”) – A protocol for facilitating compliance with an applicable requirement in situations that could otherwise require a permit modification. An ARM may also be used to assure that a given requirement does not apply in a specific situation.
Advance Approved Changes – Authorize planned changes, including the addition of entirely new units, by including requirements for future changes in the permit.
Green Group – A group of designated emission units ducted to one common air pollution control device that are treated as a single emission unit as a result of a major NSR permit which requires the control device to meet BACT or LAER and limits future emissions’ growth over a 10-year period.
The proposed changes include revisions and clarifications to mandatory program elements. Although U.S. EPA does not believe many Part 70 Programs would have to be revised if the proposed rule is finalized, some states would likely revise their current Part 70 Program to include sufficient authority to implement the final rule or to clarify its authority on flexible air permits. Additionally, if the proposed rule is finalized, SIP revisions or a demonstration that adequate authority exists under a state’s NSR Program will be required.
Comments on the proposed revisions to the Title V and NSR Programs must be submitted to U.S. EPA as set forth in the Federal Register notice and must be received by November 13, 2007. The September 12, 2007 Federal Register notice can be viewed here.