Bloomberg Law
Free Newsletter Sign Up
Bloomberg Law
Welcome
Go
Free Newsletter Sign Up

Dirtier Air Expected if EPA Lets More Companies Duck Permitting

Oct. 10, 2018, 10:31 AM

Air pollution could hike under an EPA plan that would let power plants, steel manufacturers, and a host of other industries avoid installing new emissions controls when seeking permits.

An Environmental Protection Agency proposal to end the practice of grouping large, widespread sources of air pollution such as oil and gas fields together as a single facility for permitting purposes would mean treating more small source of emissions separately.

Assessing smaller facilities individually, rather than as a whole, would lead to fewer classifications of large sources, which trigger the Clean Air Act permitting requirements and accompanying stricter pollution controls.

For permitting purposes, “I want my clients to avoid permitting if possible, or be deemed a minor source that requires less stringent controls,” said Gale Hoffnagle, senior vice president and technical director at TRC Environmental Corp. in Windsor, Conn., an engineering and consulting firm.

Environmental groups are concerned that the EPA is finding loopholes for the industries to release more pollution into the air. Industry lawyers don’t dispute that the guidance would allow more pollution to be released.

Latest Easing of Hurdles

The draft guidance is the EPA’s latest effort to ease permitting hurdles for refineries, power plants, and factories, especially those constructing or expanding in a way that increases emissions and triggers the need for new source review permits.

The agency earlier this year revised how facilities tally upgrade-related emissions that trigger new pollution controls under the program.

It is now about to release a proposal that allows a facility to aggregate or clump emissions increases from two separate yet related projects for permitting purposes. The EPA sought feedback on the guidance through Oct. 5.

Any facility emitting 100 tons or more of pollution annually is deemed a major source that must install the best available pollution controls to obtain a permit for operations, or a new source review permit for expansion or new construction.

Emissions Could Double Without Permits

Under this guidance, facilities can nearly double their allowable emissions and still be considered a minor source if they emit up to 99 tons, Eric Boyd, an attorney with the Chicago office of Thompson Coburn LLP, told Bloomberg Environment.

The agency said its change in direction is driven by the U.S. Court of Appeals for the Sixth Circuit’s 2012 decision in Summit Petroleum Corp. v. EPA.

In this case, the court held that the EPA unreasonably treated Summit Petroleum’s natural gas sweetening plant and its gas production wells as a single major source, although they were anywhere from 500 feet to eight miles apart from each other. Gas sweetening is a process using solutions to remove hydrogen sulfide from gases.

The court instructed the EPA to consider the plain meaning of adjacent when deciding how to lump together facilities for Clean Air Act permitting purposes.

In response, the EPA declared oil and gas facilities half a mile apart as separate sources for permitting purposes, but it stopped short of applying this interpretation to other manufacturing facilities, until now.

Bright Lines Needed

The EPA guidance isn’t as clear as industry would like. For instance, Hoffnagle said, the guidance leaves it up to agency to determine proximity on a case-by-case basis.

The National Association of Manufacturers told the EPA they would prefer a “bright line” distance for clarifying the meaning of “adjacent” based on proximity.

“The EPA is opening the door to essentially more gamesmanship that will produce more pollution,” Sierra Club managing attorney Sanjay Narayan told Bloomberg Environment.

The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Environment is operated by entities controlled by Michael Bloomberg.

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bloombergenvironment.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bloombergenvironment.com