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On February 14, 2018, the US Army Corps of Engineers (USACE) and U.S. EPA  published the latest installment in the Waters of the U.S. (WOTUS) groundhog day saga.  Promising regulatory certainty, the rule is notable for how similar it is to the 1986/1988 WOTUS definition.  However, many in the regulated community will note that the proposed rule excludes ephemeral streams from federal jurisdiction, which is a change from the joint EPA and USACE 2008 memorandum that asserted jurisdiction over ephemeral streams.

This proposed regulation comes at a time when two different WOTUS definitions are currently enforced throughout the country, as I’ve written previously.  If ever there was a need for regulatory certainty, it is now as permittees wrestle with a checkered regulatory landscape across state lines.  But if the 2015 Obama-era WOTUS rule is anything to go by, we can expect the judicial branch to decide the fate of the proposed 2019 WOTUS rule.

A promising sign for prospective permittees is a recent USACE directive memorandum which would require state agencies to complete 401 Water Quality Certification (WQC) permitting decisions within 60 days of receipt of an application, instead of the 1-year window that is currently “standard practice.”  Since USACE permits cannot be issued without 401 WQC permits, this memorandum could help expedite some federal permitting timelines.  While most states have pre-authorized general 401 WQC permits already, watch for changes to individual WQC applications which typically take longer to process.

I will be providing a presentation on this topic at the Kentucky Chamber of Commerce’s 17th Annual Kentucky Environmental Conference on March 14, 2019 in Lexington, Kentucky.  More information about this conference is on the Kentucky Chamber’s website.  If you have specific questions about potential stream and wetland permitting needs, please contact me at josiahf@smithmanage.com. Josiah is an Environmental Scientist at Smith Management Group.


January 23, 2019


January 16, 2019


January 11, 2019

OSHA’s Top 10 Most Cited Violations 2018




A permitted manufacturing facility in Kentucky had stopped using equipment and wanted to make operational changes which were not reflected on their air permit. Large old boilers which had not been used for several years were still active on the site’s air permit. Additionally, the facility wanted to increase operating hours for certain affected facilities.
The old boilers were the reason that the site had federally enforceable limits for sulfur dioxide in their permit and were subject to the National Emission Standard for Hazardous Air Pollutants for Industrial, Commercial, and Institutional Boilers Area Sources. This status resulted in additional requirements, higher monitoring and reporting costs, and higher fees to the regulatory agency. Changes to operations required a reevaluation of the site’s potential emissions.


Smith Management Group evaluated the permit requirements and operational data. SMG calculated the potential to emit without the large boilers and with the expanded hours. SMG’s assisted the facility in updating the correspondence and permit with the regulatory authority to change the facility status to minor source.


SMG helped the source update their air permit to represent current site conditions and allow for expanded operations. The source fully decommissioned the large oil boilers in place, successfully transitioned from a permit with federal limits (FEDOOP/FESOP) to a minor source permit and updated their potential-to-emit calculations to represent new operating parameters. These changes saved the facility money in monitoring, reporting, and fees and also allowed for expanded operations in compliance with air regulations.