SCS Engineers Technical Bulletin: Understanding EPA’s Proposal to Provide States Greater Flexibility in Minor New Source Review (NSR) Public Participation Requirements
Executive Brief
This bulletin discusses EPA’s proposed changes to the federal minimum public participation requirements for minor NSR permitting programs and, more importantly, what those changes could mean for future project planning, permitting strategy, and plant or facility operations.
Why Should Management Care?
When I first reviewed EPA’s proposed rule, my initial reaction was that it appeared to be a relatively minor procedural change. The proposal does not change emission limits, modify permitting thresholds, or expand the applicability of the minor NSR program.
The more I thought about it, however, the more I realized this proposal is not really about public notice. It is about project planning. One lesson I have learned over the years is that permitting often becomes part of the project’s critical path. Delays in obtaining a permit can affect equipment procurement, construction schedules, startup dates, and ultimately project costs. That is why this proposal caught my attention; recognizing this helps management be in control and reassured about project timelines.
If EPA finalizes the rule, states and local air agencies—not EPA—will decide whether public notice and comment remain part of their minor NSR permitting programs. Some states may choose not to revise their permitting programs if their existing requirements already meet or exceed EPA’s minimum requirements.
The proposal itself does not shorten permitting schedules. Whether permitting becomes more efficient will depend on how individual states respond. For now, management should continue planning projects in accordance with today’s permitting requirements while monitoring future developments.
Questions Management Should Be Asking
Rather than asking whether EPA is changing the rule, I think management should be asking different questions.
Those are the questions and aims that will determine whether this proposal has any practical business value.
Plant Environmental and Compliance Perspective
From the perspective of the plant environmental manager, very little has changed today.
Permit applications currently being prepared should continue following existing state and local permitting requirements. Existing project schedules should not be modified in response to a proposed federal rule. However, environmental managers have an opportunity to begin discussing with plant management how this proposal could affect future projects. For example, if their state ultimately revises its permitting program, eliminating or reducing public notice requirements for certain minor NSR permits could shorten one step in the permitting process. Whether this ultimately saves a few days or several weeks will depend on how each state implements the final rule and how much time public participation currently adds to its permitting process.
One question I would expect from management is: “If EPA finalizes this proposal, could our next project move through permitting more quickly?”
Today, the honest answer is, “We do not know yet.”
That answer will depend on whether your state decides to revise its own permitting program. Environmental managers should continue to monitor the EPA’s rulemaking and future actions by their state or local permitting authority. They should also begin evaluating how any changes could affect their facility’s or plant’s permitting strategy, project schedules, and coordination with the permitting agency. As with many permitting issues, the most effective strategy will vary by state and by project.
Background
Current federal regulations require approved state minor NSR programs to include minimum public participation procedures before certain permitting actions are finalized. EPA is proposing to remove that federal minimum requirement. Importantly, EPA is not proposing to eliminate public participation nationwide. Instead, EPA is proposing to allow each state or local permitting authority to determine whether public notice and comment remain appropriate for its own permitting program.
This distinction is important because the proposal does not automatically change permitting procedures nationwide.
Strategic Considerations
The more interesting question is not whether the EPA finalizes this proposal. The more interesting question is what the states do next. Some states may conclude that their current permitting process works well and decide not to make any changes. Others may view this proposal as an opportunity to streamline routine permitting actions.
As someone who has worked with state permitting agencies for many years, I expect there will be a variety of responses rather than a single nationwide approach. Companies operating in multiple states already know that permitting requirements vary from state to state. If EPA finalizes this proposal, public participation could become another area where those differences exist. That is why facilities should continue to work closely with their permitting professionals and plan projects based on each state’s requirements rather than assuming a common national approach.
The SCS Engineers Perspective
One mistake I occasionally see is companies assuming that a proposed federal rule immediately changes how permits are issued. That is rarely the case. Even if EPA finalizes this proposal, many states would still need to determine whether changes to their own regulations are appropriate. Some may revise their permitting programs, while others may not.
From my perspective, facilities should continue planning projects in accordance with today’s permitting requirements. The proposal is worth watching—not because it changes permitting today—but because it may influence how permitting is administered several years from now. That is where the real business impact may occur.
For more information about EPA’s proposed rule, visit https://www.epa.gov/nsr.
For specific guidance or questions, please get in touch with SCS Engineers for an expert in your state, or the Author, John Tsun. John Tsun is a Project Director and SCS’s National Practice Leader for Industrial Clean Air Act (CAA) Services, with more than 35 years of experience leading complex environmental compliance projects. His background spans a wide range of industrial sectors, including petroleum, pharmaceutical, chemical, power generation, manufacturing, and government agencies.
