Return of the Short-Term NSR Test?

The October 27, 2008 edition of the Wall Street Journal reported that the current administration was moving to adopt a short-term (hourly) New Source Review (NSR) applicability test for electric generating units (EGUs) at power plants by November 1, 2008.  The article speculated that the November 1, 2008 deadline was set to make it difficult for the incoming administration to “undo” the rules. The short-term test was originally proposed by U.S. EPA on October 13, 2005 as a result of a June 15, 2005 decision by the Fourth Circuit Court of Appeals (U.S. v. Duke Energy Corporation).  That decision (temporarily) changed the NSR applicability test in the Fourth Circuit states from an annual emissions basis to an hourly emissions basis, making it uniform with the NSPS applicability test for modifications.  On April 2, 2007, the Fourth Circuit decision was vacated by the Supreme Court, thereby retaining the annual NSR applicability test.  On April 25, 2007, U.S. EPA proposed further options to change the NSR applicability test for EGUs at power plants. The proposed April 25, 2007 revisions included a “2-step” option for EGUs where the existing annual emissions NSR test would be applied to EGUs that first exhibited an hourly emissions increase.   Stay tuned for updates in future issues of 4 the Record.

Pennsylvania Finalizes Water Resources Planning Regulations

On November 15, 2008, the Pennsylvania Environmental Quality Board published the final Water Resources Planning regulations under Act 220.  These regulations amend the reporting requirements for water suppliers in Chapter 109 (Safe Drinking Water) and add a new Chapter 110 (Water Resources Planning) to the Pennsylvania regulations in 25 Pa. Code.  The information collected under the regulations will be used in the development of the State Water Plan, which is mandated by Act 220. 

New Chapter 110 specifies registration, monitoring, recordkeeping, and reporting requirements that are applicable to water users in the Commonwealth.  Registration requirements apply to any person (i.e., individual, partnership, association, company, corporation, municipal authority, or Federal or Commonwealth agency) that engages in any of the following activities: 

• Withdraws more than 10,000 gallons of water per day from surface water or groundwater in any 30-day period.
• Obtains more than 100,000 gallons of water per day from an interconnection (such as a public water supply) in any 30-day period.
• Obtains more than 10,000 gallons of water per day from an interconnection (such as a public water supply) in a critical water planning area in any 30-day period.

All persons that are required to register must submit annual reports to the Pennsylvania Department of Environmental Protection (PADEP) by March 31 for public water supply agencies and June 30 for other water users.  The reports must include the amount of water withdrawn or obtained through an interconnection, the location of each withdrawal or interconnection, the amount of water consumptively and non-consumptively used, the location(s) and amount of water returned or discharged, and the amount of water transferred between public water supply agencies through interconnections.  Additional recordkeeping requirements are specified for the following specific types of water users: public water supply agencies; power generation facilities; the manufacturing industry; the mineral industry; the bulk, vended, retail, and bottled water industry; golf courses; and ski resorts.

Records of all registration and report information, including supporting data, must be kept for at least five (5) years.  Monitoring requirements are applicable to public water supply agencies, hydropower facilities, persons with a total withdrawal of 50,000 gallons of water per day (average during any 30-day period), and persons that obtain 100,000 gallons of water per day through an interconnection (average during any 30-day period).  Monitoring must be accurate to within 5% or 10% of actual flow depending upon the specific water user.  Chapter 110 also contains provisions for the voluntary registration of water conservation projects with PADEP. 

Proposed Revisions to Pennsylvania Air Quality Permit Exemption Policy

The Pennsylvania Department of Environmental Protection (PADEP) is seeking comments on proposed revisions to Technical Guidance Document Number 275-2101-003 – Air Quality Permit Exemptions.  The public comment period opened on November 22, 2008 and will close on December 22, 2008.  The proposed major revisions pertain to changes to the list of determinations that have been made by PADEP regarding air permitting exemptions.

Under the proposed revisions, facility owners or operators must now submit RFD forms for certain categories of sources that were previously exempt from air quality permitting (e.g., all internal combustion engines, site-wide, with combined NOx emissions of <100 lb/hr, <1,000 lb/day, and <2.75 tons/ozone season and excluding peak shaving generators; bulk material storage bins; certain research and development activities; certain powder metal sintering furnaces; and remediation of gasoline or fuel oil contaminated soil, groundwater or surface water).  In addition, several sources that were previously exempt from air permitting requirements have been removed from the exemption list including sources controlled using baghouses that vent inside of buildings.

Will the CAIR Vacatur be Overturned?

On September 24, 2008, U.S. EPA petitioned the U.S. Court of Appeals for the D.C. Circuit for a Panel rehearing or en banc rehearing of the Court’s July 11, 2008 decision to vacate the Clean Air Interstate Rule (CAIR). Intervenors in the case (Environmental Defense Fund, National Resources Defense Council, U.S. Public Interest Research Group, Utility Air Regulatory Group, and the National Mining Association) also petitioned for a Panel or en banc rehearing of the decision. 

In response to the petitions, on October 21, 2008 the Court ordered the Petitioners in the case to respond to U.S. EPA’s petition for a Panel or en banc rehearing.  Specifically, the Court requested that the Petitioners address 1) whether they were seeking vacature of CAIR and 2) whether the mandate vacating CAIR should be stayed until U.S. EPA issues a revised CAIR regulation. 

The November 5, 2008 Petitioner’s responses to the Court’s order were varied, and each Petitioner focused on the aspects of the case that were of importance to his or her interests.  The Petitioner’s responses to the Court’s specific requests regarding the granting of a rehearing and stay of the mandate were as follows:

• North Carolina opposed a rehearing, but supported a stay of the mandate with a short deadline for U.S. EPA to re-promulgate CAIR.
• 22 Eastern States (amici states) supported both the petition for rehearing and stay of the mandate.
• The SO2 Petitioners, with the exception of Duke Energy, opposed both a rehearing and a stay of the mandate.  Duke Energy opposed a rehearing, but supported a stay of portions of the mandate (they believe the SO2 portions of CAIR should be vacated).
• Entergy and FPL Group opposed a stay, but although they did not seek vacatur of the rule, believe it is the only appropriate remedy.
• The Florida Association of Utilities (one of the NOx Petitioners) opposed both a rehearing and a stay of the mandate.

Clean Air Act Felony Charges

The Hershey Creamery Company, located in Central Pennsylvania, pled guilty to a Clean Air Act (CAA) felony charge involving its failure to develop and implement a Risk Management Program (RMP) for two (2) of its Pennsylvania facilities. The CAA charge was a result of the company’s apparent failure to develop and implement an RMP for the storage and use of a refrigerant (anhydrous ammonia) after certifying to U.S. EPA that it had developed an RMP plan.   The company was sentenced to pay a $100,000 fine and was placed on one (1) year of probation. Each facility has been subsequently inspected by U.S. EPA and found to be operating in compliance with the RMP requirements.