Recent New Source Review Updates for Consideration

Recent New Source Review Updates for Consideration

Last week, NCMA Air Quality Group 6 Rules Review Ad hoc Committee Chair, Joe Sullivan (AECOM) shared three (3) recent updates from US Environmental Protection Agency (EPA) Air Quality New Source Review (NSR) Permitting Program. In addition to Joe's observations, some of the text provided here is from EPA's NSR Website News and Announcements.

Adjacent Guidance

On Tuesday, November 26, 2019, EPA came out with a final non-binding guidance that revises the agency’s interpretation of when multiple air pollution-emitting activities are located on sufficiently “adjacent” properties to one another that they should be considered a single source for the purposes of permitting. To determine what activities comprise a single source under the NSR and Title V air permitting programs, three factors must be satisfied:

  1. the activities must be under common control;
  2. they must be located on contiguous or adjacent properties; and
  3. they must fall under the same major group standard industrial classification (SIC) code.

In this guidance, for all industries other than oil and natural gas production and processing (for which there is a separate set of rules and to which this guidance does not apply), EPA adopts an interpretation of “adjacent” that is based on physical proximity only. The concept of “functional interrelatedness” would not be considered by EPA when determining whether activities are located on adjacent properties.

The November 26 memorandum represents EPA's interpretation, but agencies have latitude as to how they should apply this guidance.

Proposed NSR Error Corrections Rule

Also on November 26, 2019, EPA posted a proposed rule to correct certain typographical and grammatical errors and more importantly to correct inadvertent errors due to not making the appropriate changes to the rule that should have already been made due to previous agency actions. The most significant items include:

  • Removing certain equipment replacement provisions that should have already been removed when the ERP rule was vacated more than a decade ago.
  • Changing the definition of the listed source category for municipal waste combustors as 250 tons per day of refuse instead of 50 tons per day.
  • Removing the portable source exemption.

EPA's NSR website stated that EPA is proposing to address minor errors that have accumulated over time in four NSR regulations. While these minor errors, such as outdated cross references and typographical errors, have not materially impeded the effective operation of the NSR program, EPA believes that it is important to remove such errors from the regulations in order to provide regulatory certainty and clarity.  The proposed corrections are all considered to be non-substantive and are intended to provide clarity and precision to the NSR regulations without altering any NSR policy or changing the NSR program as a whole. EPA is also proposing to remove from the NSR regulations various provisions, such as certain “grandfathering” provisions, that, with the passage of time, no longer serve any practical function or purpose.

Reasonable Possibility Rule Reconsideration

On November 5, 2019, EPA Administrator Andrew Wheeler sent a letter to New Jersey's Attorney General to inform them that EPA has determined it is not necessary to reconsider its 2007 final rule “Prevention of Significant Deterioration and Nonattainment New Source Review: Reasonable Possibility in Recordkeeping.”  In February 2008, New Jersey petitioned EPA to reconsider the rule and EPA responded on April 24, 2009 that the agency had made a discretionary decision to grant New Jersey's petition and begin reconsideration proceedings. EPA's most recent November 5, 2019 letter reaffirmed that the Clean Air Act (CAA) does not mandate reconsideration of the 2007 rule and EPA has further concluded that additional public comment is neither necessary nor warranted. The letter specified that the discretionary reconsideration proceeding has ended and that EPA is not considering any changes to the 2007 rule.

EPA’s 2007 Reasonable Possibility Rule defines when there is a “reasonable possibility” that a project may result in a significant emissions increase even though it was determined not to be a major modification and associated recordkeeping, monitoring and reporting requirements.  The purpose of this provision is to hold sources accountable for the projected emissions calculations they make prior to undertaking projects that they determine, based on those calculations, are not subject to major NSR permitting.

EPA's final determination to no longer reconsider the reasonable possibility test could be a significant issue for certain states like North Carolina that have taken a stance to go beyond the federal rule and are barred from being more stringent than a federal law.


SOURCE: Joe Sullivan, AECOM, November 27, 2019
SOURCE: EPA NSR Permitting Program, New Source Review Group, Research Triangle Park, NC



Adjacent Guidance 
EPA Memorandum, 11/26/2019 | Ann L. Idsal, Acting Assistant Administrator | Interpreting "Adjacent" for New Source Review and Title V Source Determinations in All Industries Other than Oil and Gas

NSR Error Corrections Proposed Rule
Error Corrections to New Source Review Regulations | Proposed Rule Pre-Publication | Signed November 22, 2019 by Andrew Wheeler, EPA Administrator

Reasonable Possibility Rule Reconsideration - Response to New Jersey
EPA Letter to New Jersey Attorney General, 11/5/2019