In a matter of a few weeks, the US Environmental Protection Agency (EPA) has proposed several actions that could have dramatic impacts for facilities subject to Clean Air Act New Source Review (NSR) provisions (i.e., major sources of air pollutant emissions). These actions address the grandfathering provision for fine particulate emissions, the fugitive emissions rule and the aggregation rule. To wit:
- On February 4, EPA proposed to repeal the NSR “grandfathering provision” for emissions of particulate matter less than 2.5 microns, or micrometers, in diameter (PM2.5), commonly termed “fine particulates.” The rule had allowed permit applicants to rely on permitting requirements for “coarse particulates” – particulate matter 10 microns or less in diameter, or PM10 – as a surrogate for PM2.5 requirements if the application had been submitted prior to July 15, 2008. The EPA proposal also will end the “PM10 surrogate policy” by no later than May 2011, eliminating the use of PM10 as a substitute for PM2.5 analysis in State permitting programs.
- On March 24, the agency extended the stay of the December 19, 2008, “fugitive emissions rule.” This rule required fugitive emissions to be counted in determining whether a physical or operational change results in a “major modification” subject to NSR permitting requirements only for sources in designated industries. Other sources were not required to consider fugitive emissions in reaching this determination. The EPA originally granted a stay of the fugitive emissions rule in response to a petition for reconsideration filed by the National Resources Defense Council, and signaled its intent to reconsider the rule. Will this reconsideration result in withdrawal of the rule, and extension of the requirement to include fugitive emissions for major modification determinations in all industries?
- And on March 29, EPA proposed to revoke the “aggregation rule,” which required that permittees combine emissions from plant modifications to determine NSR “major modification” status only when those activities are “substantially related,” and have in common more than their timing and that they support the overall plant function. Further, modifications separated by three years or longer were presumed not to be substantially related. The EPA proposal will delay the effective date of the aggregation rule until November 2010 or later while it reconsiders the rule.
With these proposals, EPA appears intent on increasing its regulatory oversight of pollutant-emitting industries, and notably continues to modify or reverse its own actions dating from the previous administration. Is more environmental regulation now a good thing? Did the former administration go too far in relaxing controls over industry?
More information on these regulatory actions can be found at EPA’s New Source Review page.