Dropping air pollution permitting as an EPA enforcement priority is a measure of the 20-year-old program’s success and not a capitulation to polluters, as some critics are suggesting, former agency attorneys said.
The Environmental Protection Agency is weighing whether to drop new source review air pollution permits from the list of enforcement priorities after nearly 21 years. The agency said it has reached dozens of settlements over permitting violations since it made permits a priority in 1998 and that regional offices are capable of handling any needed oversight.
“Now it’s ready to declare the enforcement initiative a success and move on to other concerns like drinking water utility compliance,” Andrew Stewart, who served in the EPA Office of Enforcement and Compliance Assurance under both President George W. Bush and President Barack Obama—from 2003 to 2015—including as a division director in the civil enforcement office, told Bloomberg Environment.
The EPA is in the process of deciding which environmental violations should get the most scrutiny during the 2020 through 2023 time period. With limited resources and pressing concerns like lead exposure through tap water, some former enforcement officials told Bloomberg Environment it makes sense the agency would drop one of its oldest targets.
“I think it’s more a question of where the agency will deploy its limited enforcement resources on a national level,” said Stewart, who now is a counsel in the Washington, D.C., office of Sidley Austin LLP.
Under the Clean Air Act, new source review permits are required for any construction or expansion of industrial facilities like power plants or refineries that cause air pollution to increase significantly. The permits require the facilities to install best available pollution controls in a process companies often complain is costly and takes too much time.
There is general agreement among EPA’s former cops that it isn’t unusual for an administration to remove some areas previously included in the priority enforcement list in favor of new initiatives as part of the periodic review.
New Rules Mean New Priorities
The EPA under the Trump administration has vowed to streamline the permitting process to address industry concerns. Areas where the agency has updated its regulations haven’t typically been viewed as primary enforcement targets, Kevin Minoli, a partner with Alston & Bird LLP’s Washington, D.C., office who previously was the EPA’s acting general counsel, told Bloomberg Environment.
“When the agency is actively changing how those rules apply, it is often not an effective use of limited enforcement resources to hold companies accountable,” he said.
Changes to the permitting program include guidance on how industrial facilities can tally emissions from upgrades to determine whether they triggered the permitting review. The agency also has revived a 2009 rule that will allow power plants, factories, and refineries to treat multiple changes at their facilities as a single project for the purpose of getting air pollution permits.
‘Core’ Enforcement Continues
Though air pollution permitting may no longer be a national priority, the EPA said enforcement will continue through its “core programs,” which represent all the work the agency does when it isn’t pursuing national priorities.
“When they return a program to the ‘core,’ it doesn’t mean the regions won’t do investigations,” Stewart said. “Rather, it means they will have more autonomy to look into complaints.”
But the agency’s resources have shrunk, also leaving less room for core program work.
And the core enforcement program is usually focused on overseeing state programs, which traditionally have been “very soft” in pursuing new source review violations, said Eric Schaeffer, executive director of the Environmental Integrity Project. Schaeffer worked in the EPA enforcement office from 1990 to 2002, including as director of civil enforcement, where he oversaw new source review cases.
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