MassDEP Proposes Significant Streamlining of Air Permitting

Beveridge & Diamond, P.C. - Massachusetts Environmental, Land Use and Real Estate Alert, 2008

The Massachusetts Department of Environmental Protection (“MassDEP”) has for years administered one of the most stringent air permitting programs in the country, requiring permits for emissions that in many states are authorized without any agency involvement, and requiring permit modifications for many relatively simple process modifications where these would not be necessary in other states.  Reflecting a priority announced by Governor Deval Patrick, MassDEP has now proposed to modify its air permitting rules to increase permitting thresholds and simplify the permit amendment process.

The proposed amendments follow a streamlining study that the agency conducted in 2007, which examined the technical review process for permit applications and included consultation with an advisory group comprised of consultants, lawyers and interest groups.  The study included a review of opportunities to adopt performance standards to replace some permitting for certain categories of emission units, an examination of the different approaches used within MassDEP to determine Best Available Control Technology (“BACT”) (required in Massachusetts for virtually all air permits), and an evaluation of concerns that the permitting process lacked transparency for the regulated community.

The study culminated in a series of recommendations on how to improve the air permitting process in Massachusetts, including suggestions that MassDEP issue more written guidance, simplify its application forms, publish its BACT determinations, clarify its permit amendment process, and implement a standard permit approval format and standard recordkeeping and reporting provisions in permits. 

The proposed regulatory amendments arise from some of the recommendations made in the study, and include the following changes to the current permitting process:

• Increase the threshold for non-major comprehensive plan approvals from 5 tons per year (“TPY”) to 10 TPY.  This would still require permitting for these emission sources, but using the reduced application requirements and faster permitting process allowed for limited plan approvals. 
  
  
• Clarify that BACT determinations may include top-down BACT, case-by-case BACT, BACT as previously defined by the agency through BACT determinations which will be accessible through a new state BACT Registry/Clearinghouse, and BACT as a cap on emissions of less than 18 tons of VOCs/HOCs and total HAPs, and/or 10 TPY of individual HAPs.
  
  
• Clarify the control technology requirements necessary for meeting the current catch-all regulatory standard for abating “a condition of air pollution.”
  
  
• Create a process for consolidating multiple permits to eliminate the confusion experienced at many facilities that hold many different plan approvals issued over time to address modifications.
  
  
• Define a process for making administrative amendments to existing permits to correct the ambiguity that currently exists from the lack of a formal process.
  
  

The proposed changes reflect a significant improvement of components of the current complex air permitting system administered by MassDEP, although the exact language and methodologies proposed could in several respects be clarified and further improved.  Public hearings on the amendments have been scheduled during the month of October, 2008, and written comments are due to MassDEP no later than October 20, 2008.

For further information on the proposed amendments, or to discuss the drafting of comments, please contact Stephen Richmond at 781-416-5700 or srichmond@bdlaw.com.