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07.22.2021 Legal News

Top Five Potential Air Permitting Reforms: How Air Permitting in Virginia Is Poised for Change

The Virginia State Air Pollution Control Board (Air Board) took its first measurable step toward a change in air permitting by creating a Subcommittee on Public Participation Processes (the Subcommittee) on June 21, 2019.  The Subcommittee is composed of a subset of Air Board members.  At the time of formation, the precise agenda of the Subcommittee was not clear.  This changed.  The meetings, public comment, and discussion since the Subcommittee’s first meeting on September 13, 2019 have shaped their initiatives.  We discuss these areas and the possible impacts on air permitting in Virginia. 

Sources seeking to permit new sources or modify existing sources will be impacted if the reforms are finalized.  The Clean Air Act has always been the primary bar for sources looking at a facility change or when building a new source.  The Clean Air Act is designed to have standards in place (National Ambient Air Quality Standards (NAAQS)) to protect all populations, including the air quality for sensitive populations, through lengthy planning, scientific study, risk assessment, and development of policy.  State-specific stricter standards would overlay NAAQS and other Clean Air Act regulations, if current emissions regulations were found to be inadequate protection.  The Subcommittee’s action plan could change this historic balance. 

The following five areas are on our watch list:

  • Site Suitability.  The General Assembly directs the Air Board to consider the facts and circumstances relevant to “the reasonableness of the activity involved and the regulations proposed to control it.”  Va. Code § 10.1-1307(E)(3).  In that determination, the Air Board may consider “[t]he suitability of the activity to the area in which it is located.”  Id.  The statute is vague as to whether site suitability would be a determination for new source siting only.  For example, if an existing source wishes to expand its industrial facility and is able to comply with the applicable air emissions regulations to expand, can the Air Board reject the project solely on the basis of its location?  The Subcommittee has discussed site suitability as part of their agenda.

    The Virginia Department of Environmental Quality (DEQ) recently published a Notice of Intended Regulatory Rulemaking (NOIRA) on site suitability.  The NOIRA identifies the potential for revisions to either the regulations for permits for stationary sources or the regulation for general administration.  It would convert the site suitability determination from a case-by-case basis to a set of parameters for the Air Board and DEQ to use.  DEQ is currently assembling a Regulatory Advisory Panel (RAP) to assist in shaping the new regulation.  In addition, the Subcommittee may put a “gap-filling” guidance in place while the regulation is developed, which will take more than a year in the making. 
  • Environmental Justice.  The Subcommittee is shaping, with DEQ, the way in which environmental justice considerations will be folded into the air permitting process.  The General Assembly passed the Virginia Environmental Justice Act in 2020 (Act); however, the Act is simply a policy with definitions to promote environmental justice.  It does not tell Virginia state agencies how to implement environmental justice principles.  The Subcommittee and DEQ have been discussing how to define an environmental justice community.  DEQ has enhanced its community data and mapping capabilities to achieve this task.  Once these communities are defined, it is not clear how environmental justice considerations will be folded into the permitting process.  In other words, is this only an exercise in public notice and engagement at meetings?  Or will the presence of an environmental justice community near a pending permitting action stop a project?The Act does not provide any guidance as to whether environmental justice considerations are satisfied by communication alone.

Site suitability and environmental justice considerations are clearly the processes that could dramatically change the permitting process procedurally, as well as whether certain projects can even pass muster in the Commonwealth.  In addition, the following reforms are being considered:

  • Electronic Availability of Permitting and Air Board Documents.  The Subcommittee is encouraging improved public accessibility of environmental documents.  In particular, the Subcommittee would like a webpage to publish its materials, which would include numerous public comments.  In addition, there is interest in posting full air permitting applications.  Presently, DEQ updates a spreadsheet with outstanding permitting actions but does not post the applications. 
  • Expanded Outreach for permitting activities.  The Subcommittee is compiling ideas on how this expansion would occur.  Although the expansion could call for additional outreach for environmental justice communities, general obligations were discussed, such as additional signage at the site, use of social media, or additional public meetings.  The Subcommittee is developing a minimum baseline that would revamp the current process. 
  • Consideration of Cumulative Impacts.  The Subcommittee has expressed interest in considering the cumulative impacts of a project in addition to air impacts – such as water, waste or wildlife.  Cumulative impacts would be part of the equation when the Air Board votes to approve a permitting action.  This initiative is on hold for the moment.  The Subcommittee recognizes that there might not be legal authority for the Air Board to consider non-air-related environmental concerns.

In summary, air emission sources in Virginia will need to monitor the upcoming public comment processes and the Subcommittee’s activities.  Changes to the permitting process may have a significant impact and even restrict air permitting projects in Virginia. 

42 U.S.C. § 7409.

State Air Pollution Control Board Meeting Minutes, June 21, 2019 found here

Notices of Intended Regulatory Action, Virginia Register, Vol. 37, Issue 19 (May 10, 2021).

Virginia Environmental Justice Act, Va. Code § 2.2-234 et seq.