A Sign of Change?

First, U.S. EPA decides to reverse decades of past practice and experience of using a policy that the Prevention of Significant Deterioration (PSD) permit application date was the cut-off for new applicable requirements for the source. Then they add new, more stringent short-term SO2 and NOX National Ambient Air Quality Standards (NAAQS). To top things off, new Best Available Control Technology (BACT) requirements for Greenhouse Gas (GHG) emissions are added to the mix. Shake well and what do you get?

Financially viable and good clean construction projects – going nowhere fast.
While faced with a court appeal, Avenal Power LLC v. EPA, in the U.S. District Court for the District of Columbia, U.S. EPA has decided that maybe, just maybe, they may not have made all the right decisions. Hours before a Federal judge was scheduled to hear the case, U.S. EPA announced that they are planning to adopt a “new” policy that exempts permits that have yet to be “issued” from complying with air quality limits that took effect after the permits were first sought. U.S. EPA declares in the court filing that the new policy will apply to an as “yet unspecified number of other permits in a similar situation.”

U.S. EPA Air Chief Gina McCarthy stated that “EPA has determined that it is appropriate, under certain narrow circumstances, to grandfather certain [permit] applications from the requirements to demonstrate that the proposed facility will not cause or contribute to a violation of the hourly NO2 standard. In addition, EPA believes the factors that justify such an approach for the hourly NO2 standard also provide a basis not to subject these same permit applications to additional permitting requirements that have taken effect during the period of time these permit applications have been pending.”

Even if the lawyers for Avenal Power had to twist U.S. EPA’s arm, we will take this turn to a more practical, real world solution as a good sign. What is not apparent is whether U.S. EPA truly understands how disruptive their changing requirements are to securing the financial support to permit a project, much less to build it. Hopefully we will see more of these realistic decisions by U.S. EPA. One can always hope.