Greenhouse Gas Permitting – You May Be Doing Too Much

U.S. EPA amended its Prevention of Significant Deterioration (PSD) and Title V regulations on August 19, 2015 in order to formally eliminate the regulatory provisions that were identified as vacated within the April 10, 2015 Coalition Amended Judgment. Specifically, the Tailoring Rule’s Step 2 PSD permitting requirements at 40 CFR §51.166(b)(48)(v) and 40 CFR §52.21(b)(49)(v) as well as the regulations that require U.S. EPA to consider further phasing-in GHG permitting requirements at lower GHG emission thresholds at 40 CFR §52.22, 40 CFR §70.12, and 40 CFR §71.13 were removed from the Code of Federal Regulations.

Pursuant to this action, a facility not yet considered a major source with respect to the PSD program cannot trigger major source status on the basis of GHG emissions alone. And, as was further outlined in the December 19, 2014 “No Action Assurance Memo” issued by the Office of Enforcement and Compliance Assurance (OECA), U.S. EPA is no longer authorized to enforce the terms and conditions of a PSD permit that was historically issued under these terms, or for related GHG terms and conditions that are contained in the source’s Title V permit. Pursuant to an earlier rulemaking finalized on May 7, 2015, applicants may apply to rescind an existing PSD permit if their regulated sources fall under Step 2 of the PSD permitting process on the basis of GHG alone, in which case the No Action Assurance Memo would no longer be applicable to that source once its Step 2 permit is rescinded.

The August 19, 2015 action does not change the applicability of 40 CFR §51.166(j), 40 CFR §51.166(b)(48)(iv), 40 CFR §52.21(j), or 40 CFR §52.21(b)(48)(iv). For sources that trigger PSD based on emissions of pollutants other than GHG (i.e., anyway sources), the PSD Best Available Control Technology (BACT) requirement continues to apply as is outlined in the August 19, 2015 Federal Register Notice.

While these changes bring PSD and Title V regulations closer to the ruling outlined in the Coalition Amended Judgment, U.S. EPA will continue to make changes to their PSD and Title V regulations to fully implement the Coalition Amended Judgment. Future rulemakings are expected to (1) revise additional definitions within the PSD regulations and (2) remove the remaining vacated portions of the Title V regulations which require a stationary source to obtain a Title V permit solely because the source emits or has the potential to emit GHGs above the applicable major source thresholds. Be on the lookout for updates concerning these future rulemakings on ALL4’s website, where you can expect to find the latest in regulatory news related to climate change!