Regardless of whether it is a rational approach, EPA is continuing down the path of regulating greenhouse gas (GHG) emissions under the Clean Air Act (CAA). In what is couched largely as a procedural move, EPA is proposing to add a major source GHG applicability threshold of 25,000 tpy CO2e under both the Title V and Prevention of Significant Deterioration (PSD) permit programs. For PSD, the Agency also is proposing a significance level between 10,000 and 25,000 tpy CO2e and is seeking comments on what that value should be. (The “significance level” is the amount of emissions increase associated with a modification that would require a source to obtain a PSD permit.) After five years, the Agency is proposing to complete a study to determine whether it is feasible to administer PSD and Title V permitting programs at lower GHG thresholds.
Under the proposal, new or modified facilities emitting over 25,000 tpy CO2e of GHGs “would need to apply for a revision to their operating permits to incorporate the best available control technologies (BACT) and energy efficiency measures to minimize GHG emissions.” BACT would be determined on a case-by-case basis during the PSD process. Facilities with less than 25,000 tpy CO2e of GHG would not be required to obtain a permit. Existing sources would need to include GHG emissions estimates in their permit applications during the five year renewal cycle.
Ostensibly, EPA is proposing the new thresholds to avoid an “absurd result” associated with other GHG related regulations that it has proposed. The Agency believes that finalizing the GHG rule for light duty vehicles (proposal signed 9/15/09) will trigger CAA permitting requirements since such action would classify GHG emissions as a pollutant under the CAA. The current thresholds for criteria pollutants (e.g., SO2 or NOX) are 100 and 250 tpy. Without the proposed tailoring, EPA suggests that these lower thresholds would take effect automatically for GHGs if it were to adoption any rule limiting GHG emissions. Without creating the new GHG thresholds, EPA estimates that about 40,000 PSD permit applications would be required each year (currently permit authorities receive about 300 PSD permits per year). Title V permits would be required for six million sources (in contrast to the current inventory of 15,000 sources). Under the proposed thresholds, EPA estimates 400 sources would be subject to PSD review each year for GHG emissions and approximately 14,000 sources would need Title V permits for GHG emissions.EPA is apparently relying on the Massachusetts v. EPA decision as legal grounds to proceed with regulating GHG emissions under the CAA. Notwithstanding the Supreme Court’s narrow 5-4 decision in Massachusetts v. EPA, the CAA was neither intended nor designed to address GHG emissions. The constructs that this Administration are trying to read into the CAA are simply not there. As then-EPA Administrator Johnson stated in July 2008 when the Agency released the Advanced Notice of Public Rulemaking, “the CAA is ill-suited for the task of regulating global greenhouse gases” and regulating GHG emissions through the CAA “could result in an unprecedented expansion of EPA authority that would have a profound effect on virtually every sector of the economy” (not to mention the years of litigation likely to follow).
A copy of the proposed rule is available on our FTP library. Comments on the proposed rule are due within 60 days after publication in the Federal Register.
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