EPA recently proposed revisions to its Prevention of Significant Deterioration (“PSD”) and Title V regulations that will impact the permitting of greenhouse gases (“GHGs”). These regulatory changes are being proposed to conform with decisions by the U.S. Supreme Court and the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”).
In 2007, the U.S. Supreme Court in Massachusetts V EPA held that GHGs fall within the definition of the term “air pollutant” under the Clean Air Act. In response, EPA promulgated regulations that made GHGs subject to PSD and Title V permitting if emissions exceeded the applicability thresholds. EPA recognized that the regulation of GHGs under the PSD and Title V programs would radically increase the number of sources subject to permitting, so EPA promulgated the Greenhouse Gas Tailoring Rule which established a phase-in approach for PSD and Title V applicability based on the amount of GHGs emitted by various sources.
The Greenhouse Gas Tailoring Rule was challenged and upheld by the D.C. Circuit in Coalition for Responsible Regulation v. EPA, but was then appealed to the Supreme Court. In Utility Air Regulatory Group v. EPA, the Supreme Court held that EPA may not treat GHGs as an air pollutant solely for purposes of determining whether a source is required to obtain a PSD or Title V permit. In other words, a source is not subject to PSD and Title V permitting if it emits GHGs but no other regulated pollutant. The Court also held, however, that EPA could continue to regulate GHGs in PSD and Title V permits issued to sources that exceed applicable thresholds for non-GHG pollutants. The Court sent the case back to the D.C. Circuit to determine which parts of the Greenhouse Gas Tailoring Rule should be struck and which parts should be left in place. The D.C. Circuit then issued an Amended Judgement which, in turn, led to the currently proposed regulatory revisions.
The proposed regulatory changes will remove from the PSD and Title V regulations the requirement to obtain permits for sources based solely on the emission of GHGs. The specific changes being proposed include:
Comments on the proposed rule must be received by EPA on or before December 2, 2016.
81 Fed. Reg. 68110 (October 3, 2016).