NEGOTIATING ENVIRONMENTAL PERMITS Steven Lacoste Lee, Futrell & Perles, LLP September 2014 – University of New Orleans

What Kinds of Environmental Permits Exist and What They Regulate  Air – air emissions and/or the equipment or processes used to control them  Water – water discharges and/or the equipment or processes used to control them  Demolition/Renovation – asbestos removal/encapsulation; NOI if over 5 acres  Transportation – transport of waste  Disposal – ultimate disposition/destruction of waste

Why Would You Need Environmental Permits  Opening a New Facility  Starting a New Operation  Making Changes to an Existing Facility or Operation  Physical Facility Changes  Raw Material Changes  Operational Changes  Procedural Changes

Agencies That Issue Environmental Permits  Federal  Environmental Protection Agency  Army Corps of Engineers  Coast Guard  State  Louisiana Department of Environmental Quality  Louisiana Department of Health and Hospitals  Local  Parish Emergency Planning  Environmental Affairs

Types of Permits  Title V Operating Permit – for all major sources and some minor sources of air pollution (comprehensive)  New Source Review Permit – preconstr. permit for new major source or major mod of existing source  PSD Permit – for new and modified major sources re pollutants (criteria pollutants) that don’t exceed NAAQS in the area (28 listed sources: petroleum refineries, chemical process plants, petroleum storage and transfer units with >300k barrels ; glass fiber processing plants– 100 tpy limit; non-listed sources – 250 tpy limit) ex. NOx, VOCs, SO 2, CO, lead, ozone and fine particulate and other pollutants that don’t have an NAAQS  NPDES Permit – for point source discharges to surface waters, for non-process wastewater discharges, process wastewater or treated sanitary wastewater; to a publicly owned treatment works  Waste Transporter Permit – transport of regulated waste generated or disposed in the state

Provisions in Permits  Emissions Limits  BACT – control level required for sources subject to PSD (most stringent level of control taking into account other costs)  LAER – required in nonattainment areas (most stringent level of control)  Monitoring Frequency  Record Keeping  Reporting

Negotiating Knowledge  Basis for enacting a statute  Enabling statute  Basis for creating a regulation  Regulation  Exceptions  Exclusions  Holdings  Regulators in the agency writing your permit  Consultants writing your permit applications Trade  Later for sooner  Unnecessary for required

Examples of Issues to Negotiate  Stream-based water quality limits (Non- enforcement of biomonitoring provision)  Lowering of water permit limits (COD limit decrease - backsliding)  Allowable Soil contamination limits (exceedances allowed)  Air permit pollutant emissions (calculations used)

Other Environmental Negotiations  Penalty Notices  Compliance Orders  Notice of Violation contents (split)  Procedures  Any provision that can be interpreted in more than one way