WATCH: In Senate EPW Hearing, Kelly Presses EPA Nominee on Data Center Pollution and Public Input

“The thing I hear most from communities in Arizona where these proposed data centers are built is ‘how can we have our voices heard? ’” Today, during a Senate Environment and Public Works (EPW) Committee hearing , Arizona Senator Mark Kelly pressed Justin Schwab, President Trump’s nominee to lead the Environmental Protection Agency’s (EPA) Office of Air and Radiation, on the agency’s proposal to eliminate longstanding public comment requirements for certain air pollution permits, including for data centers building their own power plants. Kelly also secured a commitment from Schwab to prioritize final approval of a Maricopa County air quality rule aimed at reducing air pollution from off-road equipment. Kelly raised concerns that EPA’s proposal to eliminate the 30-day public comment period for certain air pollution permits could leave communities without a say in new data center projects: “As you know, there’s a massive boom in data center development across the country. The thing I hear most from communities in Arizona where these proposed data centers are built is, ‘how can we have our voices heard?’ That’s especially true if a data center is proposing to build what’s called behind-the-meter generation. Or in other words, they’re going to build their own power plant. For decades, EPA has required at least 30 days for the public to review and comment on proposed permits. Seems rather reasonable.” Kelly questioned who pushed for the rollback after seven major data center developers responded to an October inquiry from Kelly, and none indicated they had requested the change: “Earlier this year, EPA proposed a new rule that would allow states to eliminate the public comment opportunity for any minor source facility that emits less than 100 tons of pollution per year. I think that’s unacceptable, and what I can’t understand is who asked for this.” Last month, Kelly and Whitehouse urged EPA Administrator Lee Zeldin to withdraw the proposal, arguing that faster permitting should not come at the expense of transparency or communities’ ability to shape decisions that affect them. During the hearing, Schwab committed to looking into the senators’ letter after Kelly pressed him to ensure EPA provides a response. Kelly also secured a commitment from Schwab to advance Maricopa County’s efforts to improve air quality: “Just last week, EPA formally approved the county’s Rule 205, which allows businesses to generate emissions credits by replacing older, higher-polluting vehicles with cleaner ones. I appreciate that progress, but Rule 204, which would establish a similar program for off-road equipment, still needs final approval.” When Kelly asked whether Schwab would prioritize EPA’s ongoing work with Maricopa County to move Rule 204 toward final approval as quickly as possible, Schwab responded, “Yes. If confirmed, I do commit to prioritize in that regard.” Sen. Kelly questions EPA nominees in EPW hearing. Click here to download a video of Kelly’s remarks. See the transcript below: Sen. Mark Kelly: Thank you, Madam Chair and thank you, Mr. Schwab, for being here today. I’d like to first ask you about Maricopa County’s efforts to improve air quality, which has spanned multiple administrations. Just last week, EPA formally approved the county’s rule 205, which allows businesses to generate emissions credits by replacing older, higher polluting vehicles with cleaner ones. I appreciate that progress, but rule 204, which would establish a similar program for off road equipment, still needs final approval. Mr. Schwab, if confirmed, will you commit to prioritizing EPA’s ongoing work with Maricopa County to move rule 204 toward final approval as quickly as possible? Justin Schwab, Nominee, Assistant Administrator for the Office of Air and Radiation: Thank you for the question, Senator. Yes. If confirmed, I do commit to prioritize in that regard. Kelly: Well, thank you. Mr. Schwab, next, I want to talk about data centers. As you know, there’s a massive boom in data center development across the country. The thing I hear most from communities in Arizona where these proposed data centers are built, is how can we have our voices heard? That’s especially true of a data center is proposing to build what’s called behind the meter generation. Or in other words, they’re going to build their own power plant. Right now, those facilities would need to get a minor new source review permit. And for decades, EPA has required at least 30 days for the public to review and comment on proposed permits. Seems rather reasonable. 30 days. It basically says to a developer, if you want to admit up to 100 tons of nitrous oxide or soot a year, you need to give the surrounding community opportunity to understand the impacts of a project and voice their concerns before construction begins. Mr. Schwab, let me ask you a question. So, would you be comfortable with a data center that admitted just less than the 100 tons of NOx or PPM 2.5 near your home, without a guaranteed opportunity to give your input? Schwab: Thank you for the question, senator. Matters of permitting are in the first instance, the responsibility of state or local governments. The Clean Air Act does provide certain minimum requirements. The Clean Air Act does expressly require state permitting programs in order to be approved by EPA to provide for public engagement when it comes to major new source, review sources, but does not contain any such requirement with respect to minor news source review sources and in that regard. Kelly: Well, that’s what I’m asking but from your personal life, would you be comfortable with a data center that admitted just less than, the cutoff is 100 tons, just less than the 100 tons of NOx or PPM 2.5 near your home without a guaranteed opportunity to give your own input. That’s the question. Schwab: Thank you for the question, senator. It would depend on the particular circumstances of the facility. Kelly: The circumstance is a data center is being built, and it’s going to admit, let’s say, a just under 100 tons of night nitrous oxide of NOx. Would you be comfortable with that without having an opportunity to give your own input on the issue? Schwab: Thank you for the question, senator. As I said, matters of permitting are appropriately where consistent with federal law, the prerogative of state and local governments. And those are the ones that know their communities best. Kelly: Yes, so you don’t think homeowners, people in the region of where the data center is being built should get a say if it’s just less than the 100 tons or you don’t think it’s up to them at all. Schwab: Senator, the Congress Enacting the Clean Air Act, has provided those areas in which federal law does require all state permitting process to engage, to include a public participation phase. And there are other areas in which federal law does not have that express requirement. And there is a pending proposal in that regard from. Kelly: Well, it sounds like your answer is no. I’m trying to understand where are you on this? If it’s less than 100 tons, you don’t think people should get an input. You keep coming back to the law, but I’m just asking you your opinion. Schwab: My opinion is that, as a general principle, state and local governments and agencies understand their communities and their concerns best. Kelly: Well, earlier this year, EPA proposed a new rule that would allow states to eliminate the public comment opportunity for any minor source facility that emits less than 100 tons of pollution per year. I think that’s unacceptable and what I can’t understand is who asked for this. So, I worked with Ranking Member Whitehouse to ask nine of the leading data center developers said seven of them responded, and none of them said they asked EPA to make this rule. So, Mr. Schwab, you’ve been at EPA since these rules were proposed and you’ve been in the Trump administration since the president took office. So maybe, you know, like who asked the EPA to roll back these common-sense protections? Schwab: Thank you for the question, senator. The proposal is not specific to data centers. The proposal addresses generally requirements for minor — Kelly: Who asked to roll them back? Because it wasn’t the data centers. So must have been somebody, unless it was just decided internally that you don’t think the community should have an input. Schwab: Senator, the policies of the United States is articulated by the president’s executive orders are where consistent with law, to reform permitting processes to ensure that they do not include non-statutory non legally required provisions that may hinder development. Having said that, it is the prerogative of state and local governments in the first instance where federal law is silent on a question to determine what level of public participation may be appropriate under their own — Kelly: It sounds like you’re saying it came from the White House. Well, what I’m going to ask you here is, will you commit to speaking with Administrator Zeldin and his team about the letter we sent to make sure we get an answer to our letter. Schwab: Thank you for the question, senator. I’m not familiar with this letter, but, yes, I do confirm the looking into the letter. Kelly: All right. Thank you. Thank you, Madam Chair.