• EPA Announces Clean Air Act Rules for Permitting Greenhouse Gas Emissions
  • September 9, 2010 | Authors: Steven A. Hudson; Jeffrey D. Talbert; David B. Van Slyke
  • Law Firm: Preti, Flaherty, Beliveau & Pachios, LLP - Portland Office
  • Yesterday, EPA announced two proposed rules that it stated were meant to "ensure that businesses planning to build new, large facilities or make major expansions to existing ones will be able to obtain Clean Air Act permits that address their greenhouse gas (GHG) emissions."

    Under the Tailoring Rule, which was finalized in May of 2010, large new industrial facilities that significantly increase their greenhouse gas emissions will need New Source Review (NSR) permits under the Clean Air Act's Prevention of Significant Deterioration (PSD) program. Covered facilities will have to comply with the Tailoring Rule starting in January 2011. The two proposed rules issued by EPA require all facilities covered by the Tailoring Rule to obtain Clean Air Act permits for GHG emissions, regardless of whether their states have adopted rules regulating GHG emissions.

    The first proposed rule requires 13 states to make changes to their state implementation plan ("SIP") to ensure that GHG emissions are covered. The Clean Air Act requires states to develop EPA-approved implementation plans that include requirements for issuing air permits. When federal permitting requirements change, as they did after EPA finalized the GHG Tailoring Rule, states often need to modify their SIP. EPA plans to issue a "SIP call" that requires these 13 states to revise their plans.

    Of the 13 states impacted by the first proposed rule, Connecticut is the only New England state that will have to revise its sip due to this proposal, while Massachusetts, Maine, New Hampshire and the other New England states will be required to review their programs and statutory authority to determine if they can impose GHG requirements.

    If these states conclude that they lack such authority they will either have to adopt such authority or their sources will have to comply EPA's second proposed rule, which establishes a federal implementation plan (FIP) that would apply to facilities in states that do not formulate a SIP that meets the Tailoring Rule requirements. Only the states with SIPs that are deemed by EPA to be inadequate would have to comply with the federal plan.

    All facilities with Title V permits under the Clean Air Act could be affected and should consider working with their respective state agencies to minimize compliance and reporting burdens. Preti's Climate Strategy Group has experience in assisting industrial facilities with both state and federal GHG compliance and is available to help sources evaluate their options.