Business Roundtable Comments in Response to EPA Request for Comments on Federal Permitting Improvement Steering Council Report

Introduction/Summary
 
These comments are submitted on behalf of Business Roundtable, an association of chief executive officers of leading U.S. companies.  Business Roundtable member companies produce more than $7 trillion in annual revenues and employ nearly 16 million employees. Business Roundtable is focused on growing the economy and accelerating the creation of high quality jobs for the American people. Title 41 of the Fixing America’s Surface Transportation Act (FAST-41) provides a mechanism for comprehensive reform of the process of permitting major infrastructure that can make significant progress toward achieving those critical objectives.
 
Business Roundtable urges EPA to condition a state’s assumption of delegated responsibilities under EPA-administered permitting statutes on the State’s adherence to the same best practices that would be applicable to EPA if it were to perform the permitting responsibilities directly. Applying best practices to delegated authorities would be an important step in effectuating both FAST-41 and Executive Order 13807, “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects.”
 
Discussion
 
EPA’s Request for Public Comment (Request for Comments) fulfills the agency’s obligation under Section 41006(a)(1) of FAST-41, 42 U.S.C. § 4370m-5(a)(1), to initiate a national process, with public participation, to determine whether and the extent to which any of the best practices recommended in the annual report of the Federal Permitting Improvement Steering Council (the Best Practices Report) are generally applicable on a delegation- or authorization-wide basis to permitting under statutes that enable a Federal agency to delegate authority to, or otherwise authorize, a State to issue or administer a permit program in lieu of the Federal agency. Numerous EPA-administered statutes provide for delegations of permitting responsibilities to the States, including the Clean Air Act, the Clean Water Act, and the Resource Recovery and Conservation Act (RCRA). The vast majority of permits under these statutes are issued by States.
 
The Best Practices Report notes that many of the practices described in the report are widely used by Federal agencies today, and that some of the best practices described in the report are legally required for projects covered under FAST-41 and certain other projects. Best practices are offered to enable Federal agencies to “execute their authorizations and environmental reviews in the most efficient and effective manner.” Where States have taken over the responsibility for executing Federal authorizations and environmental reviews, the obligation to utilize best practices likewise should transfer to the State along with the permitting authority. Failing to do so could diminish the efficiency and effectiveness of the delegated authorization process.
 
Federal involvement in the permitting process does not end with the delegation of permitting authority. Rather, as the Request for Comments indicates, EPA has established minimum program requirements for authorized and delegated programs, and also has communicated regularly with delegated and authorized programs regarding program implementation and oversight. In 2016, EPA identified the sharing of best practices with all permitting authorities as one of the tools to be considered in order to establish and maintain a strong collaborative environment between EPA and State permitting programs.
 
It is time to go further and establish a clear linkage between the exercise by States of delegated Federal authorities and the adoption of best practices. Congress set the stage for this in FAST-41, which identified best practices for permitting programs, and recognized that modifications to permitting programs for States acting under delegated authority should be considered. Section 41006(a)(2) of FAST-41 requires EPA to “make model recommendations for State modifications of the applicable permit program to reflect the best practices.” Those recommendations are due by December 4, 2017 (the date two years after the enactment of FAST-41). 
 
Business Roundtable recommends that EPA should not only issue model recommendations, but also should explore the extent to which the relevant statutes authorize the agency to require States, as a condition of maintaining delegations or authorizations of authority, to incorporate the recommended best practices into their permitting programs. Where consistent with existing law, EPA should require as a condition of a delegation of authority that States apply the best practices identified in FAST-41 and the annual reports of the Federal Permitting Improvement Steering Council in their permitting programs.
 
We believe that EPA has this authority under its principal permitting statutes. For example, Title V of the Clean Air Act authorizes EPA to promulgate “regulations establishing the minimum elements of a permit program to be administered by any air pollution control agency.” The law specifies that such elements shall include “[a]dequate, streamlined, and reasonable procedures for expeditiously determining when such applications are complete, for processing such applications, for public notice . . ., and for expeditious review of permit actions, including applications, renewals, or revisions . . . .”  The requirements for expedition and streamlining are reflected in other required Title V elements as well.  The provisions of the Clean Water Act and RCRA authorizing EPA to delegate permitting programs under those laws contain similarly broad authority.   
 
Conclusion
 
Business Roundtable commends EPA for moving the FAST-41 implementation process forward, and encourages the agency to act as expeditiously as possible to provide model recommendations and, where consistent with existing law, require that States acting under delegated authority implement identified best practices to streamline permitting authorities. 
 
For further information about these comments, please contact:
 
Maria Ghazal
Senior Vice President & Counsel
Business Roundtable
300 New Jersey Avenue, NW
Suite 800
Washington, DC  20001
Phone: (202) 496-3268
Fax: (202) 466-3509