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EPA “Next Steps” Document Addresses Supreme Court’s Ruling on GHG PSD Permitting

Posted Monday, August 25th, 2014

In response to the U.S. Supreme Court’s recent decision in Utility Air Regulatory Group v. EPA, the U.S. Environmental Protection Agency (EPA) has issued a “Next Steps” document discussing the applicability of federal prevention of significant deterioration (PSD) and Title V permitting requirements to greenhouse gases (GHG).  These permitting requirements are generally referred to as the “Tailoring Rule.”  The Court’s decision invalidated the Tailoring Rule’s “GHG-only” PSD permitting requirements, which required some sources to obtain a PSD or Title V permit based solely on their GHG emissions.  A more detailed discussion of the Court’s decision can be found here.

Pursuant to the Court’s decision, EPA states that it will no longer enforce or apply the Tailoring Rule provisions that require GHG-only PSD and Title V permits.  EPA states that it will, however, continue to apply PSD Best Available Control Technology (BACT) requirements to GHGs from “PSD-anyway” sources—those sources that trigger PSD permitting requirements for other pollutants—if their GHG emissions exceed a 75,000 tons per year carbon dioxide threshold.  EPA indicates that it will issue further guidance regarding sources that have already received GHG-only PSD or Title V permits, but suggests that removing the GHG BACT determinations from such permits and converting them into minor source permits may be appropriate.

EPA also states that it anticipates revising its GHG PSD and Title V regulations, as well as revising many SIPs and approved Title V programs, but that the timing and content of these revisions will depend on further legal process before the U.S. Court of Appeals for the D.C. Circuit.  EPA further states that even though it will not enforce or apply GHG-only PSD and Title V permitting requirements, such permits may still be required under state laws.  EPA indicates that its regional offices will confer with state permitting authorities and permit applicants on this issue.

EPA also briefly discusses the establishment of a de minimis emission threshold, below which BACT would not apply to GHGs, stating that “further EPA action will consider whether to promulgate a de minimis level and what level would be appropriate.”

For additional information contact Andrew Holway.

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