The Role of Outside Legal Counsel in Clean Air Act
January 1, 2005
As seen in the May 1997 issue of “Environmental Corporate Counsel Report” published monthly by Business Development Association, Inc.
The Clean Air Act Amendments of 1990 required EPA and the state regulators to issue a new form of operating permit to a large number of facilities. These programs are beginning to take effect, and many companies already are working to prepare applications. At Spencer Fane Britt & Browne (SFB&B) our clients often ask whether and to what extent they should use legal services in connection with that process. The principal questions, and basic answers, are set out below. What can my lawyer bring to the permitting process? At SFB&B, we begin with the proposition that a permit is “good” only if it both adequately describes the technical issues, such as emission points and applicable regulations, and gives the permittee maximum flexibility and protection. We bring the advocate’s perspective to the permitting process. We identify ways to maximize our clients’ chances of getting a good permit, without interfering with the technical personnel’s work. When is legal assistance appropriate in the process? Especially for complex permits, keeping counsel involved throughout the process significantly increases the opportunities to obtain a good result at the lowest overall cost in time and money. For many clients or facilities, however, legal counsel’s involvement can be limited to one or more of the four principal points in the permitting process:
1. Initial planning.2. Review of draft application.3. Review of and commenting on draft permit.4. Permit appeal and negotiations.
Isn’t the lawyer’s job in a permit appeal essentially to make sure we follow the correct procedures, and help make a presentation at the hearing? Actually, some of the best value SFB&B lawyers can add is outside of the procedural aspects of the permit appeal. We learn from our clients their “must-have” appeal results and their “desired extras” Then we help develop an appeal strategy calculated to maximize the chances of obtaining the best possible overall result promptly and efficiently. It also is important, of course, to follow the correct procedures. Because many appeals are resolved through negotiation, your written appeal must make the agency pay serious attention to your position on important issues. In negotiations, we emphasize practical resolutions of differences between the agency and the permittee. We understand the needs and desires of the agency players, too, which helps us identify “win-win” resolutions to difficult disagreements. Using a lawyer for an appeal makes sense, but can’t I adequately comment on my draft permit without legal assistance? We can add significant value to comments on an unacceptable draft permit. Your comments give you the maximum benefit if they are written in light of an overall strategy calculated to maximize chances for efficient success in each step of the process, including appeal and hearing, if necessary. One of our principal goals always is to bring this overall strategic view to our clients’ comments. In addition, we sometimes find that while permittees and their consultants develop very good comments on the technical conditions in the permit, they may not identify traps for the unwary in other “boilerplate” portions of the permit. You should not accept blindly permit terms that exceed the agency’s powers. It is important to keep in mind that, while the permit is “out for comment,” the entire permit is subject to change. If, for example, you do not comment on a reporting or record keeping provision that appears merely annoying in the draft permit, you may not be able to appeal it when a change to the related technical requirements makes it intolerable. You should remember, as well, that sometimes the failure to comment on unacceptable permit terms can waive your rights to appeal those terms. What can legal review of my draft permit application do for me? After technical personnel have prepared a draft permit application, it should be reviewed by the permittee’s management, and by legal counsel. In this stage of the process we seek to do two things: First, to help ensure the application implements the appropriate strategy and second, to identify any “smoking guns” the draft application contains. For example, we help assess whether the application describes best-case operations in a way that could result in the permitting agency imposing “perfect operation” as an inviolable operating condition. A better application strategy is to describe in the application the level of operation necessary to meet the applicable emission limits. Otherwise, unanticipated difficulties that do not result in violations of the underlying regulatory limit may constitute permit violations, and subject the permittee to fines. The “smoking guns” we see often involve inappropriate uses of terms that carry special meanings in some regulatory program. Examples include description of an upkeep operation as a “modification” without explaining that it is not a modification in the NSPS or PSD sense, or use of terms like “hazardous waste” or “waste oil” without ensuring the permit does not imply that the plant is out of compliance with some RCRA requirement. Your application must include a certification that the facility is in compliance with all applicable requirements, or identify any non-compliance. We hope that your permit application will not have to identify non-compliance with any regulatory program. If it does, before submitting the application, you should develop a carefully considered strategy to deal with them. The last thing you want, however, is to cause the agency to have the inaccurate impression that there is a compliance problem where none really exists. What can a lawyer do for me during the early planning for a permit application? Obtaining legal counsel during the planning stages of the process can help both the permittee and the consultant ensure that everyone is working together toward the common goals and the strategies to be implemented in the permit application. Often, a little legal input in the planning stages helps the permittee and technical consultant identify better application strategies in the initial draft, shortening the process of getting the application from the draft stage to finality. How much time (and expense) does this involve? Often, surprisingly little. Much of the work in the permitting process is technical, and we can provide valuable assistance without covering the technical ground again. Thus, fullest legal review typically is a very small part of the overall effort that goes into the process. We also understand that not everybody wants or needs our maximum involvement in each step. We are comfortable working with our clients to identify the best points at which to involve our lawyers in the process, so the client can get the greatest value possible from our efforts. We are happy to talk to clients about the best approach for them, to assess the likely level of effort necessary, and to control costs and eliminate any delays from the legal involvement.