EPA Provides for Rescission of Prevention of Significant Deterioration Permitting for Greenhouse Gas Sources [Final Rule]

On May 7, 2015, the U.S. Environmental Protection Agency (EPA) published a final rule that amends the federal Prevention of Significant Deterioration (PSD) program regulations.  The rulemaking will enable affected facilities to apply for a rescission of certain PSD permits issued by the EPA and delegated state authorities under Step 2 of the PSD and Title V Greenhouse Gas (GHG) Tailoring Rule (Tailoring Rule).  The rule becomes effective on July 6, 2015. 

Statutory threshold for GHG allowed to a much higher level than the threshold for traditional air pollutants

Previously, the EPA required new or modified stationary sources of GHG to obtain a permit and limit their emissions under the PSD program, even if these sources did not also emit one of the traditional air pollutants at triggering levels.

Because GHG are typically emitted in much higher concentrations than traditional air pollutants, the Tailoring Rule previously allowed the EPA to alter the statutory threshold for GHG to a much higher level than the threshold for traditional air pollutants.  In the U.S. Supreme Court case Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014) (UARG), the Court struck part of the EPA’s Tailoring Rule because it ruled that the agency could not alter statutory thresholds in this manner.

How to obtain a PSD permit rescission ?

In response to UARG, the EPA’s rulemaking allows sources that were required to obtain PSD permits solely based on their GHG emissions to apply for a rescission of these permits.

To obtain a PSD permit rescission, the source will need to demonstrate to the EPA or the delegated state environmental authority that it does not qualify as what is known as an “anyway source“, or a source that would be subject to PSD requirements anyway because it emits a traditional pollutant above the statutory threshold.  Unless the EPA receives adverse comment by June 8, 2015, this rulemaking will become effective on July 6, 2015.

Red-on-line EHS Legal expert

Sources:

Prevention of Significant Deterioration Permitting for Greenhouse Gases: Providing Option for Rescission of EPA-Issued Tailoring Rule Step 2 Prevention of Significant Deterioration Permits, Federal Register, 80 FR 26183, May 7, 2015.

40 CFR 52

Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014).