A Time For Different Thinking Related to PSD Permitting

U.S. EPA recently issued a New Source Review (NSR) memo on October 15^th that clarifies the timeline that an applicant can expect for “timely and consistent permit processing” of a Prevention of Significant Deterioration (PSD) air permit application by U.S. EPA Regional staff or PSD-delegated air agency.  Now, the remainder of this discussion is not intended to be a critical analysis of the time and degree of notification and review associated with obtaining an NSR PSD air permit; but rather to initiate the thinking process that there is a better way to permit a project.

In the October 15^th memo, U.S. EPA states that the goal for issuing your PSD permit is 10 months from when U.S. EPA determines that your application contains “all of the information necessary for processing the application.”  Except that even after a “careful completeness determination has been made” by U.S. EPA, it may be necessary to request more information to complete the review, and this can extend the issuance time for your permit beyond the stated 10 month goal, past the 1-year statutory decision clock contained in the Clean Air Act (CAA), and into a multi-year process.  If there is an issue that requires a public hearing or brings the Environmental Appeals Board (EAB) into the process, you can also expect delays in the 10 month permit issuance cycle.

Be aware that U.S. EPA is prepared to have other agencies weigh in on your PSD application.  For example, depending on your facility location, U.S. EPA may notify Canada about your project.  If your project could impact minority, low-income, or tribal populations, expect that Environmental Justice could be an issue to be considered.  U.S. EPA will consult with Tribal parties to determine if their interests are being affected as a result of your project.  The Federal Land Manager will likely receive a copy of your PSD application if there are visibility or air quality related impacts that potentially affect a Class I area.  Are there endangered species that could be affected by your project, what about Coastal Zone Management Act (CZMA) issues, does your project have the potential to adversely affect properties covered under the National Historic Preservation Act, and what about the Magnuson-Stevens Fishery Conservation and Management Act (really?). 

Now, I have been assisting clients with NSR/PSD permitting for almost 30 years, so these timelines and most of these agency notifications are really not news to me (except for the fish conservation act).  But after reading this guidance memo from U.S. EPA, it is abundantly clear to me that an alternative to PSD permitting is something I am going to discuss with my clients.  There is simply too long a review cycle and too extensive a list of stakeholder parties that can completely derail any certainty regarding when a PSD permit can be issued and thus when a facility can commence their project. So if after reading this posting, you find yourself saying “What can I do to avoid this situation?”, I recommend that you contact one of us at ALL4 as we are ready to apply some new and different strategic suggestions related to current and future air permitting projects at your facility.