Ryan Whaley Coldiron Shandy

On May 13, 2010, EPA issued a final rule regarding the “Prevention of Significant Deterioration and Title V Operating Permit” programs under the Clean Air Act. (CAA). According to EPA’s Fact Sheet, the new rule addresses greenhouse gas (GHG) emissions from a “common sense approach,” and “tailors” permitting requirements to limit which facilities need PSD and Title V permits. The final rule covers the following pollutants: carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. At present, the new rule will not cover GHG emissions from “all but the very largest commercial facilities,” including restaurants and small farms. EPA plans to “phase in” the new requirements in a two-step format. The first step, lasting from January 2, 2011-June 30, 2011, requires sources that are currently subject to a PSD permitting program with increases of 75,000 tons per year or more need to determine the Best Available Control Technology (BACT) for their GHG emissions. During Step 1, GHG emissions alone would not bring sources within the realm of the CAA permitting requirements. Step 2 will be implemented between July 1, 2011 and June 30, 2013 and effectively “builds on Step 1.” In this step, GHG emissions alone can bring a new source within the permitting requirements of the CAA. If a source emits more than 100,000 tons per year of GHG, it will be subject to the requirements, even if it does not exceed threshold requirements for any other pollutant. Significantly, this is the first time that CAA permitting requirements apply to sources based on GHG emissions alone. EPA also states in the rule that it plans to undertake another rulemaking in 2011 to include an additional permitting phase. Likely, this phase would discuss the exclusion of smaller sources from permitting requirements, and will not require permitting for sources with GHG emissions below 50,000 tons per year.

For more information, please see: http://www.epa.gov/nsr/documents/20100413fs.pdf
For full text of the rule, please see: http://www.epa.gov/nsr/documents/20100413final.pdf