Greenhouse Gas Regulation Commences January 2, 2011 without Legislation
On May 13, 2010, EPA finalized its regulatory approach for control greenhouse gases (GHGs) from large stationary sources. As discussed in prior posts, the statutory thresholds for triggering EPA’s New Source Review program (NSR) are 100/250 tons per year of a regulated Clean Air Act pollutant.
As its name implies, EPA’s NSR program requires emission reductions from new or modified sources that emit pollutants above the 100/250 TPY threshold in the Clean Air Act. This trigger level works reasonably well for typical Clean Air Act pollutants, but not for CO2 which is emitted in much larger quantities. If the 100/250 threshold were applied for GHGs, EPA indicates thousands of sources would be required to obtain federal air permits under NSR.
To prevent what EPA calls would be an "absurd" result if the statutory thresholds were applied, EPA is proposing to phase the thresholds in over time. EPA claims they have the authority to temporarily raise the statutory thresholds based on seldom used legal doctrines known as the "absurd results" doctrine and "administrative necessity." Whether EPA truly has that authority remains to be seen.
However, the so called "Tailoring Rule" finalized on May 13th is the mechanism that raises the statutory thresholds thereby bringing in only the largest sources of GHGs. Here is how EPA is phasing in NSR requirements for sources of GHGs:
Phase 1: January 2, 2011 to June 30, 2011
New Sources (Construction Permits)- Only sources that trigger NSR due to their non-GHG emissions would be required to address GHG emissions in their permits if GHG emissions exceed 75,000 tons per year. If GHG’s exceed that threshold they must meet the Best Available Control Technology (BACT) standard to minimize GHG emissions.
Existing Sources-Must incorporate GHG related requirements into their operating permits (Title V). Right now those requirements are limited to the GHG reporting rules previously established by EPA (40 CFR Part 98- reporting rule fact sheet)
Phase 2: July 1, 2011 to June 30, 2013
New Sources (Construction Permits)- Expands beyond just those sources trigger NSR for other pollutants and with 75,000 tons per year of GHG emission. Any source that emits 100,000 tons per year of GHGs would trigger NSR permitting, even if they don’t require an NSR permit due to other pollutant emissions.
Existing Sources- Any modification to a source that would increase GHG emission by more than 75,000 tons per year triggers NSR. Also, existing sources with emission of 100,000 tons per year, even they have not modified their facility in any way, will be required to obtain an operating permit (Title V) based solely on their GHG emissions. (EPA estimates the universe of source covered is about 550- mostly landfills and industrial manufacturers.)
Phase 3 Second Rulemaking by July 1, 2012
EPA has stated it will complete a second phase of rulemaking by July 1, 2012 that will further reduce the trigger thresholds below those established in Phase 2. EPA states it will evaluate a possible threshold of 50,000 tons per year. Smaller sources would not be covered until April 30, 2016.
Continual Duty to Reduce the Thresholds
Legally, EPA is under a duty to reduce the trigger thresholds as soon as practicable to be in line with the statutory triggers of 100/250 tons per year. The key question is- How long will the courts allow them to delay implementing what is expressly stated in the Clean Air Act?
(Photo: everystockphoto- cjohnson7)