In March 2017, the Department of Commerce (DOC) issued a request for information (RFI) from stakeholders on the most burdensome regulations and permitting requirements they face and how regulatory compliance and permitting could be simplified. In October 2017, the DOC summarized responses to the RFI in a 55-page document.
Not surprisingly, of the 20 most frequently cited regulatory and permitting issues that impact manufacturing and are in need of reform, 13 are related to statutes implemented by the EPA, mainly the Clean Air Act (CAA) and the Clean Water Act (CWA).
“Beyond the reforms to specific regulations and permitting processes called for in this report, there are two overarching problems that must be addressed throughout federal permitting,” said the DOC. “The first is overlap, duplication and lack of coordination among agencies, permitting processes, and reporting requirements. The second is uncertainty in the permitting processes.”
Agencies Doing the Same Job
Regarding overlap, duplication, and lack of coordination, the American Petroleum Institute (API) told the DOC that the EPA “second-guesses” state decisions.
“Even in cases where a state issues CAA permits under an EPA-approved [state implementation plan], there are instances when decisions made by the permitting authority are re- evaluated and revisited by EPA, duplicating the efforts of the agencies and adding uncertainty for the permittee,” said the API.
Respondents provided examples of “overlapping jurisdiction of federal agencies and programs”:
- “Aspects of RCRA [Resource Conservation and Recovery Act] and CAA permits”—Cement Kiln Recycling Coalition
- “CAA new source review (NSR) and Title V permits can have significant overlap”—Valero Companies
- “EPA and the U.S. Army Corps of Engineers: Water and wetlands”—National Association of Manufacturers
- “EPA’s Integrated Risk Information System, EPA’s risk evaluation programs under the Toxic Substances Control Act, the [Centers for Disease Control’s] Agency for Toxic Substances and Disease Registry Toxicological Profiles program, and [National Institutes of Health’s] National Toxicology Program Office of Report on Carcinogens have largely redundant missions”—American Composites Manufacturers Association
Several solutions were offered for mission overlap, including designating a lead agency to coordinate responsibilities among multiple agencies involved in project reviews and providing for concurrent reviews by agencies, rather than sequential reviews.
The problem of uncertainty with environmental permitting was summarized by the Steel Manufacturers Association:
“Environmental permitting has many sources of uncertainty, including … timing, procedures, the roles of various agencies in multi-agency review projects, and the data that the permitting authorities use and rely upon in making permitting decisions. Often, this variability is based on the views and expectations of a particular regional office or specific employee or office within EPA. Other times, the requirements can apply Agency-wide yet still create uncertainty. EPA, for example, is inconsistent in its data demands and the procedures by which it approves projects….”
Promise in FAST-41
The DOC notes that FAST-41 is often cited as a step in the right direction for permitting reform. Established under Title 41 of the Fixing America’s Surface Transportation (FAST) Act, FAST-41 was designed to improve the timeliness, predictability, and transparency of the federal environmental review and authorization process for “covered” infrastructure projects. FAST-41 created a new Federal Permitting Improvement Steering Council (FPISC), with representation from Deputy Secretary-level members and led by a presidentially appointed executive director. It also created agency chief environmental review and permitting officers (CERPOs). Covered projects voluntarily gain access to improved authorization and environmental review processes such as early consultation, coordinated projects plans, project timetables, public Permitting Dashboard tracking, and dispute resolution procedures.
Currently, the benefits of FAST-41 seem to be weighted toward infrastructure projects, notes the DOC. While manufacturing is a covered sector under FAST-41, given the short history of FAST-41 and the strict definition of covered projects, the manufacturing community has yet to share in its benefits. The U.S. Chamber of Commerce wrote that several of FAST-41’s key provisions would be extremely beneficial if they were to be applied to manufacturing industry permitting, including:
- Establishing a permitting timetable, including intermediate and final completion dates;
- Requiring that agencies involve themselves in the permitting review process early and comment early, avoiding eleventh-hour objections that can restart the entire review timetable; and
- Reducing the statute of limitations to challenge a project review from 6 years to 2 years.
DOC’s document is here.