Air Strategic Permitting and Compliance; Srivastav, Piyush; NAQS-Environmental Experts; 2014 Mid-America Environmental Compliance Seminar in Overland Park, KS, April 3-4

Air Strategic Permittingand Compliance

Mid-America Environmental Compliance Conference

April 3, 2014

Presented by Piyush Srivastav, President

NAQS-Environmental Experts

ORGANIZATIONAL POSITION• Our Vision: The preeminent leader in air quality, water quality, risk

management plans, and climate change.

• Our Purpose: Partner with clients to provide value added environmental solutions that ensure:– Regulatory Compliance– Increased Operational Flexibility– Successful Project Planning– Liability Identification, Reduction

• Our Mission: Bridge the gap between industry and regulators by engaging employees with undisputable expertise, excellent critical thinking abilities, and strong communication skills.

SERVICES• Permitting –

– Applications– Strategies– Draft Permits– Permit Reviews

• Compliance Assistance• Regulatory Analysis• Emissions Inventories• Compliance Certifications• Deviation Reports• Stack Testing Assistance

• Litigation Support• Training• Audits• Compliance Management• Executive Training• Risk Management Planning• GHG Inventories and

Management• Strategic Project Planning• Dispersion Modeling

SELECT CLIENTSPartnering with a spectrum of clients ranging from small municipalities to Fortune 500 Companies

Cargill/Polyols

ABENGOA BIOENERGY

Air Strategic Permitting

Strategic Permitting• Why is Strategic Permitting Important?

– A permit is a legally binding document– Facilities can and do incur significant fines from

violating permit conditions– Regulatory agencies have made permits more

prescriptive by establishing more conditions and more stringent conditions

– Compliance process

Strategic Permitting• Getting Off to a Good Start

– Use the services of a firm with air permitting expertise during the permit application preparation process

– Be familiar with your existing permit– Allow enough time to prepare permit application– Schedule pre-application meeting with Agency– Think about potential future implications of permit

conditions– Determine if pre-application monitoring is required for

PSD sources– January 22, 2013

Strategic Permitting• Getting Off to a Good Start

– Submit a complete and timely application– Submit Draft Permit Documents/Comments

• Clearly explain the regulatory basis for proposed permit conditions

• Identify potential liabilities (i.e., stringent conditions that an agency may typically try to establish) and be prepared to address why there is no regulatory basis for such a condition

Strategic Permitting• Permit Condition Negotiation Process

– Request opportunity to review agency draft documents, including various iterations of the draft documents– Involve facility personnel in review of the draft

– Request meetings with regulatory agency– Provide comments in writing– Request responses in writing to agency conditions

that you disagree with and made comments on

Strategic Permitting• Permit Condition Negotiation Process

– Strategize which issues are worth sticking to, which are open to compromise

– Keep focus on underlying regulatory requirements– Use hypothetical scenarios during negotiation (can

help to get the point across)

Strategic Permitting• Permit Negotiation Stalemate

– For Prevention of Significant Deterioration (PSD) and Title V sources, involve and meet with EPA Regional Office if no progress is being made with local agency on important issues

– Comment during the formal public notice period– Comment on response summary– Consider appeal to the Environmental Appeals

Board (EAB)

Effective Permits

Effective Permits• Effective Permits Contain Permit Conditions

that:– Have a sound regulatory basis– Are attainable– Provide operational flexibility– Are clear– Are concise– Are enforceable

• Effective Permits Do NOT Contain Permit Conditions that are: – Unnecessary– More stringent than the regulations require– Unclear

• These Types of Conditions Inhibit Operational Flexibility and Increase Liability

Effective Permits

Effective Permits• Effective Permits Do NOT Contain

Unnecessary Permit Conditions:– Redundant limits

–Pound per hour (lb/hr) AND lb/MMBtu limits–Emission limits AND throughput limits (can be

exceptions) AND production limits– Conditions that are more prescriptive than the

regulations–Spare bags requirement for baghouses–Size/Brand/Model # of boiler or engine

Effective Permits• Effective Permits Do NOT Contain

Conditions that are More Stringent than the Regulations Require:– Short-term emission limits when the applicable

regulation is a long-term emission threshold– Exact specification of stack heights and

diameters and reference to the National Ambient Air Quality Standards (NAAQS)

– Emission limits where no limit is required

Effective Permits• Effective Permits Do NOT Contain

Unclear Permit Conditions:–Partial incorporation of New Source

Performance Standards (NSPS) requirements by reference–Vague or Open-ended permit conditions

Compliance

Compliance• Permitting Liability

– Facility may violate a permit condition that is unnecessary or more stringent than the regulations require

– Even though the facility does not violate an underlying regulatory requirement, significant fines can be incurred

– Unclear conditions lead to confusion and non-compliance

– Vast majority of construction permit conditions become applicable requirements of Title V or Class II Operating Permit

Compliance• Permitting Liability Example– Stringent or unnecessary permit condition– Notice of Violation (NOV) of condition occurs,

though no regulation is violated, and no enforcement action is taken

– Permit revised to remove/revise condition– A subsequent regulatory agency inspection finds

several issues that don’t warrant an NOV, and one issue that does – everything is included in NOV

Compliance• Permitting Liability (continued)– Even though no one item meets any of the specific

criteria for a high priority violation (HPV), there is a general HPV criteria for chronic and recalcitrant violators

– Regulatory agency characterizes one or more NOV items as HPVs as a result of current NOV in combination with previous NOV, considering the combination as a chronic violator

Compliance• Permitting Liability Example (continued)– Refers NOV to the Attorney General– Attorney General’s Office typically defers to

regulatory agency’s opinion– Other considerations

Summary

Strategic Permitting and Compliance

• Summary– Know your permit– Ensure that permit conditions are effective– Provide draft permit language for new projects– Evaluate existing permit language for possible

revisions– Spend time and resources negotiating effective

permit conditions with regulatory agency

NAQS-Environmental Experts

Contact Piyush Srivastav at: 402-310-5321 (cell)

Piyush Srivastav [email protected]

402-489-1111 (office)402-310-5321 (cell)

QUESTIONS?