PSD and Title V Greenhouse Gas Tailoring Rule

On September 30, 2009, EPA announced that it is proposing a greenhouse gas emissions regulatory program that will require large industrial facilities that emit at least 25,000 tons of GHGs a year to obtain construction and operating permits covering these emissions. The prepublication version of the rule can be found at the attached link http://www.epa.gov/nsr/documents/GHGTailoringProposal.pdf. These permits must demonstrate the use of best available control technologies and energy efficiency measures to minimize GHG emissions when facilities are constructed or significantly modified. EPA is proposing a two phase program. The first phase will be a five year program tailored to address the most significant emitters of GHGs. At the end of that five years, there would be a study and proposal as to how best to refine and expand the regulation. 

The large facilities impacted by the first phase would include power plants, refineries, and factories. Small businesses such as farms and restaurants, and many other types of small facilities, would not be included in this round of requirements. 

This proposal follows immediately after the Federal Register publication of the proposed fuel-economy rule to regulate GHGs from cars and trucks is finalized. As you may recall, the U.S. Supreme Court Case, Masssachusetts v. EPA, 549 U.S. 479 (2007), held that GHGs are air pollutants covered by the Clean Air Act. The Supreme Court ruled that EPA must determine whether or not emissions of GHGs from new motor vehicles or motog engines cause of contribute to air pollution wich may reasonably be anticipated to endanger public health or welfare, or whether the science is too uncertain to make a reasoned decision. When the light-duty vehicle rule takes effect in the spring of 2010, (see proposal of September 28, 2009, 74 Fed. Reg. 49454 (http://frwebgate6.access.gpo.gov/cgi-bin/PDFgate.cgi?WAISdocID=093894486446+31+2+0&WAISaction=retrieve ), Clean Air Act permits would automatically be required for stationary sources emitting GHGs. This proposed rule focuses these permitting programs on the largest facilities, responsible for nearly 70 percent of U.S. stationary source greenhouse gas emissions. With the proposed emissions thresholds, EPA estimates that 400 new sources and modifications to existing sources would be subject to review each year for GHG emissions. In total, approximately 14,000 large sources would need to obtain operating permits that include GHG emissions. Most of these sources are already subject to clean air permitting requirements because they emit other pollutants.

The proposed tailoring rule addresses a group of six greenhouse gases: carbon dioxide (CO₂), methane (CH₄), nitrous oxide (N₂O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF₆). In addition, EPA is requesting public comment on its previous interpretation of when certain pollutants, including CO2 and other GHGs, would be covered under the permitting provisions of the Clean Air Act. A different interpretation could mean that large facilities would need to obtain permits prior to the finalization of a rule regulating greenhouse gas emissions. 

This article was authored by Kathy G. Beckett, Jackson Kelly PLLC, (304) 340-1019 or kbeckett@jacksonkelly.com. For more information on the author see here.