First steps toward permitting of greenhouse gas emissions from stationary sources

Among arguments set forth in support of passage of a “cap and trade” bill to regulate emissions of carbon dioxide and other greenhouse gases from power plants, manufacturers and other stationary facilities is “if Congress doesn’t do it, the Administration will,” under rulemaking authority already granted via the Clean Air Act and its amendments.

Well, yes…

On September 30, the Environmental Protection Agency (EPA) announced two proposals that will advance control of greenhouse gas emissions through existing regulatory frameworks. The first of these will determine when regulatory action triggers applicability of the Prevention of Significant Deterioration (PSD) program to air pollutants, such as carbon dioxide and other greenhouse gases. The second proposal establishes “tailored” thresholds for applying New Source Review and Title V Operating Permit requirements to emissions of greenhouse gases from large facilities. 

The first proposal, since published in the October 7 Federal Register, reconsiders EPA’s December 18, 2008, memorandum interpreting how to determine when pollutants will be covered under the Prevention of Significant Deterioration (PSD) program. The current interpretation is that the PSD permitting requirements apply to a pollutant such as carbon dioxide only when it is subject to a provision in or regulation adopted under the Clean Air Act that requires control of emissions of that pollutant. Alternative interpretations to be considered include when pollutants become subject to monitoring or reporting requirements (e.g., provisions of the Acid Rain program that already apply to carbon dioxide and the Mandatory Reporting of Greenhouse Gases Rule issued on September 22); upon a Finding of Endangerment under the Act, as issued for greenhouse gases in April of this year; upon inclusion of regulatory requirements in an EPA-approved State Implementation Plan; or when a Clean Air Act Section 209 waiver has been granted (e.g., the “California Waiver”).

EPA states in the proposal that its preferred interpretation requires that a final, national rule that controls emissions of the pollutant be passed before triggering PSD applicability. Of course, this trigger will be met when the proposed rule (published on September 28) establishing new standards for greenhouse gas emissions from light-duty vehicles is finalized.

The second proposal would require certain large facilities with greenhouse gas emissions in excess of 25,000 tons per year (in carbon dioxide equivalents) to obtain permits under the New Source Review (including PSD) and Title V permitting programs. EPA describes the proposed rule as its “Greenhouse Gas Tailoring Rule” since the emission thresholds are substantially higher than the regulatory thresholds for other air pollutants covered by these permitting programs.

Under this proposed rulemaking, existing facilities with Title V operating permits would not need to revise their permits until the date of renewal, when estimates of greenhouse gas emissions will be included in the applications for permit renewal. New or modified facilities with greenhouse gas emissions that exceed the regulatory thresholds (i.e., those subject to New Source Review and Prevention of Significant Deterioration requirements) will need to apply for new or revised operating permits that incorporate best available control technologies and energy efficiency measures to minimize greenhouse gas emissions.

After an initial five-year phase, EPA will evaluate whether lowering the greenhouse gas emission thresholds for permitting is feasible given the capabilities of permitting authorities. EPA also will develop guidance to assist permitting authorities and affected sources in methods to estimate, monitor, and control emissions of greenhouse gases, and in determining appropriate “best available control technologies” as required for PSD permits.

The permitting requirements of the Greenhouse Gas Tailoring Rule will primarily affect large facilities such as power plants, refineries and cement production plants, as well as municipal solid waste landfills (due to production of methane).

More information on the proposed rulemaking can be found at

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