Last month, the D.C. Circuit Court of Appeals rejected challenges to U.S. EPA's Tailoring Rule which establishes the permitting threshold for greenhouse gas (GHG) pollutants. On July 3rd, EPA issued a rulemaking that will maintain the current GHG thresholds for the immediate future. The question is how long before environmental groups push EPA to lower the thresholds?
Pursuant to the Clean Air Act, any facility that emits more the 100/250 tons per year of a pollutant regulated under the Act must go through EPA's New Source Review (NSR) program. As part of NSR, new sources or existing sources that are modified must demonstrate they have installed Best Available Control Technology (BACT) to reduce emissions of each regulated air permit.
Once EPA promulgated the Tailpipe Rule to control GHG emissions from vehicles, GHG's became a "regulated pollutant" for purpose of NSR. Once GHGs became a "regulated pollutant" any source that emits GHGs above applicable thresholds would trigger NSR.
Because GHGs are emitted in much greater quantities than typical Clean Air Act pollutants, EPA was concerned that application of the 100/250 ton per year threshold to GHGs would trigger thousands of permits. EPA and the States did not have the capacity to process that number of permits.
To address the situation, EPA promulgated the Tailoring Rule to temporarily raise the permitting thresholds. Under the first stage of the Tailoring Rule, new facilities that emit 100,000 tons per year of carbon dioxide-equivalent and existing facilities that increase their emissions by 75,000 tons per year of carbon dioxide-equivalent will trigger NSR.
EPA Must Eventually Lower GHG Thresholds
In the July 3rd action, EPA said that the States and EPA did not have the capacity to process additional NSR permit that would be required if it lowered the threshold. Therefore, it kept the trigger thresholds at 100,000 and 75,000 tons per year. EPA pointed to the economy's impacted on federal and state budgets as one reason that permitting authorities lacked additional capacity to process a greater number of permits.
EPA has announced that it will study the burdens associated with lowering GHG thresholds by April 30, 2015. EPA has said, following completion of the study, that it will review the permitting thresholds and determine if they should be lowered by April 30, 2016.
The EPA must eventually lower the thresholds. The 100/250 ton per year trigger threshold for NSR is in the Clean Air Act. EPA amend the trigger threshold through rulemaking (i.e. the Tailoring Rule). To support the Tailoring Rule, EPA relied on legal precedent that EPA says provides it authority to adjust the statutory thresholds through rulemaking temporarily.
How Long Before EPA is Pressured to Lower the Thresholds?
In their comments to EPA's proposed rule, environmental groups urged EPA to lower the permitting thresholds. In an article appearing in BNA, David Doniger, policy director for the Natural Resource Defense Council's (NRDC) Climate Center, indicated the organization would support EPA position...for now.
“Certainly, this holding things level knocks the legs out from under the feverish claims that EPA was on the march to get to hotdog stands,” Doniger said. “This signals that there's great reluctance on EPA's part to get beyond the largest sources.”
While the NRDC and other groups are willing to hold off for now, its clear that their expectation is EPA will lower the thresholds in 2016. It will be very difficult for EPA to maintain that there is no ability to process additional permits by that date.
EPA Applies Plantwide Applicability Limits (PALs) to GHGs
A PAL is a site-specific plantwide emission level for a pollutant that allows the source to make changes at the facility without triggering the requirements of the PSD program, provided emissions do not exceed the PAL level. Instead of a facility having to analyze each emission unit as a potential modification that may exceed NSR thresholds, the PAL says as long as overall plant emissions form all sources do not exceed the PAL, the facility will not trigger NSR.
In the July 3rd rulemaking, EPA is revising the PAL regulations to allow for GHG PALs to be established on a CO2e basis. This should provide more flexibility and reduce the number of permits that would otherwise be triggered through plant modifications.