Posted by: Lawyer Sanders | March 19, 2009

Kentucky environmental attorney Sanders says EPA is going to revisit NSR Aggregration Amendments pushed by Bush Administration.

On January 15, 2009, the EPA issued a final rule amending the PSD and nonattainment NSR regulations that implement the definition of “modification” in the Clean Air Act (CAA) section 111(a)(4). The new rule addressed when a source must combine (“aggregate”) nominally-separate physical changes and changes in the method of operation for the purpose of determining whether they are a single change under NSR and result in a significant emissions increase.

The amendments retained the existing rule language for aggregation but interpreted that rule text to mean that sources and permitting authorities should combine emissions when activities are “substantially related.”  This point is the apparently sticking point with the new Adminstrator of EPA and the folks in the air branch.

 

The new Rule adopted a rebuttable presumption that activities at a plant can be presumed not to be substantially related if they occur three or more years apart. The Rule is commonly known as the “NSR Aggregation Amendments.” For further information on the NSR Aggregation Amendments, see 74 FR 2376 (January 15, 2009).  The Federal Register from January 15, 2009 is at:  http://www.epa.gov/fedrgstr/EPA-AIR/2009/January/Day-15/a815.pdf

 

On January 30, 2009, the Natural Resources Defense Council submitted a petition for  reconsideration of the NSR Aggregation Amendments as provided for in CAA section 307(d)(7)(B). Under that provision of the CAA, EPA’s Administrator may commence a reconsideration proceeding if the petitioner raises an objection to a rule that was impracticable to raise during the comment period, or if the grounds for the objection arose after the comment period. In either case, the objection must be of central relevance to the outcome of the rule. The Administrator may stay the effectiveness of the rule for up to three months during such reconsideration.

 

On February 9, 2009, EPA issued a three-month (90-day) administrative stay of the effectiveness of the NSR Aggregation Amendments. EPA will follow the notice and comment procedures under CAA 307(d), including providing an opportunity for a hearing, and will take appropriate action thereafter. To implement this administrative stay, we are delaying the effective date of FR Doc. E9-815, published in the Federal Register on January 15, 2009 (74 FR 2376), to May 18, 2009.

I predict this new Rule will be revised by EPA to make it more difficult for certain facilities to avoid PSD review of certain air emission sources.  In short, another Bush-era EPA air regulation is going to bite the dust.

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