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The Insider

Wehrum's Return To EPA Revives Years-Old Battles Over Reforming NSR

Long-time readers of Inside EPA could be forgiven for having a sense of déjà vu in recent days over the Clean Air Act new source review (NSR) permitting program, because the Trump administration is taking a host of steps that will revive years-old fights over NSR.

The major policy revisions are being led by EPA Office of Air & Radiation (OAR) Assistant Administrator William Wehrum, who held that position in an acting capacity under former President George W. Bush. His return to the agency isn't the only blast from the past, because he is continuing his push at overhauling the controversial permit program.

Only this time, Wehrum appears to have learned from past legal missteps when a federal appeals court scrapped some of the NSR policy rulemakings he oversaw (others were abandoned after he left the agency to return to his prior role as an industry lawyer). The air chief says that changes to the NSR permitting process will now take place through a mix of guidance documents and rulemakings, and he is indicating a preference -- for now -- to focus on the latter.

Pushing through changes to the NSR program through guidance could potentially shield them from legal attacks, because courts generally have found that guidance documents are non-binding and not subject to judicial review.

In order for environmentalists and other Trump administration critics to contest NSR changes in court, they'll have to show the agency made the change in a “final action,” which typically means a regulation published in the Federal Register.

Final EPA rules, while subject to judicial review, have the benefit over guidance of being more permanent. EPA Administrator Scott Pruitt's attempts to delay, reconsider or repeal various Clean Air Act rules -- including the Clean Power Plan greenhouse gas standards for existing utilities and updates to the air law's Risk Management Program facility safety mandates -- are lengthy processes, requiring an extensive body of data to justify undoing an existing rule.

That means any NSR reform rules that Wehrum is able to finalize could have a longer shelf life than guidance, because legal battles over the rules once final might take more than a year.

At the American Bar Association's Section of Energy, Environment and Resources spring conference in Orlando, FL, this week, Inside EPA's David LaRoss heard Wehrum give a keynote address about NSR and other policy changes -- and spoke to him about them on the sidelines.

For Now, EPA Plans NSR Guide To Define 'Maintenance,' Despite Rule Petition
ORLANDO, FL -- EPA is signaling that, for now, it plans to issue guidance to revise the new source review (NSR) program's definition of when facility changes are “routine maintenance” exempt from the requirements despite West Virginia's petition to adopt the change in a Clean Air Act rule -- a move that would revive a legal fight from 2006.

While Wehrum says, for now, he is planning to implement his NSR reforms through guidance, those could be easily rescinded by a future administration.

That may be why West Virginia Attorney General Patrick Morrissey (R), who is running to win the Republican nomination to take on Sen. Joe Manchin (D-WV) later this year, petitioned EPA earlier this week seeking a rulemaking to revise the NSR definition of when facilities' “routine maintenance” is exempted from permit requirements.

State's Petition For EPA NSR 'Maintenance' Rule Could Revive Legal Fight
West Virginia is petitioning EPA for a rulemaking to clarify and ease a Clean Air Act new source review (NSR) permitting exemption for facility “routine maintenance,” a move the agency has signaled it is likely to pursue but one that could revive a legal fight with environmentalists who won a court ruling in 2006 scrapping a similar rule.

But Wehrum's decision to pursue NSR reforms initially through guidance likely means that EPA will not quickly grant Morrissey's request.

Perhaps Wehrum wants states and industries to start following the guidance as soon as it's issued, because it would make it easier to tell a court that the approach has become standard practice. Or perhaps the air chief believes that implementing major changes to the NSR program through guidance is a more legally defensible route than doing so through rulemaking. Whether appellate judges will agree with that in expected lawsuits remains to be seen.

Regardless of his intentions, it's clear that Wehrum held on to his NSR reform to-do list from the early 2000s and plans to fully implement it one way or another now he's back at EPA.

Overhauling the program is a major goal of industry organizations like the U.S. Chamber of Commerce, who argue that NSR imposes costly mandates and harms the economy. They say that the risk of triggering NSR -- and the associated pollution control technology costs -- is a major reason why companies hold off on facility expansions or energy efficiency upgrades.

NSR applies in areas out of attainment with EPA's six national ambient air quality standards, and prevention of significant deterioration is the related permitting program for attainment areas. Facilities whose projected emissions exceed the threshold for NSR must obtain Clean Air Act permits that often include strict and expensive air pollution control mandates.

Inside EPA previously reported that Anna Marie Wood, director of the air quality policy division at OAR's Office of Air Quality Planning and Standards, told state air officials that NSR overhauls will be done with a mix of guidance and rulemaking.

EPA NSR Overhaul Will Target 'Aggregation,' 'Maintenance' Permit Policies
EPA's push to overhaul and ease Clean Air Act new source review (NSR) permitting mandates includes plans in the coming months to issue a mixture of guidance and regulation on key issues including “aggregating” emissions for permitting purposes, and revising a policy on what qualifies as facility “maintenance” exempt from NSR.

In an April 5 presentation to a recent meeting of the Association of Air Pollution Control Agencies (which represents several state and local air agencies) she said that the list of NSR “improvements” and “updates” includes steps Pruitt and Wehrum have already taken, such as deferring to industry calculations of whether a project's estimated emissions should trigger NSR.

Upcoming steps include a guidance change to “aggregating,” or combining, sources for air quality permitting. Combining emissions from several nearby sources could push facilities over the threshold for triggering NSR, so EPA's reform could make it easier for companies to keep sources separate and never trigger NSR permitting. Additional reforms include changes to the definition of “ambient air” that could change when permits are required for certain facilities, and the revision to the facility routine maintenance exemptions from NSR sought by West Virginia.

Inside EPA was here for the first attempt at these NSR changes in the Bush administration, and we'll have exclusive in-depth coverage of the agency's second bid for NSR reform. Keep reading us for our legal and regulatory tracking of the policy changes -- where the only certainty is that lawyers involved in litigating NSR issues are going to be busy for months to come.