EPA won't regulate GHGs until 2011

By Kris Bevill | March 16, 2010
Posted March 30, 2010

The U.S. EPA officially declared today what Administrator Lisa Jackson has been reporting for weeks: the agency has no plans of regulating emissions from stationary sources until 2011. While not necessarily "new" news, the announcement was a necessary step in order to prevent facilities' GHG emissions from immediately becoming regulated under the Clean Air Act following the EPA's final rule on tailpipe emissions. The agency is expected to issue its final tailpipe rule later this week and is also scheduled to make its final decision on GHG emissions regulation soon.

The formal decision released today was part of the agency's reconsideration of a December 18, 2008, memo written by then-Administrator Stephen Johnson. The so-called Johnson Memo addressed when Prevention of Significant Deterioration permits would apply to GHGs and said that PSD permits would apply to pollutants that are subject to either the CAA or emissions regulation controlled by the EPA under the CAA authority. In October, the EPA requested comments as to when a pollutant becomes "subject to regulation" for the purpose of requiring a PSD permit. After reviewing submitted comments, it has concluded that GHGs will not be subject to the PSD permitting program until an emissions rule is finalized, allowing the EPA to issue its final rule on tailpipe emissions without automatically triggering stationary source regulations.

The reconsideration issued today also determined that PSD permitting requirements for GHG emissions will be triggered when the tailpipe rule "takes effect," which means that the earliest date at which stationary sources could be subject to regulation is Jan. 2, 2011. Pending permit applications that are finalized after that date will be subject to GHG emissions regulation, regardless of when the permit application was filed. The EPA stressed that today's reconsideration decision is meant only to provide a date as to when facilities could become regulated. The final tailoring rule will discuss the applicability of PSD requirements for facilities that are not already subject to PSD permitting.

The EPA also reiterated in the reconsideration that it intends to phase-in PSD permitting requirements for stationary sources. It reached this decision after reviewing public comments addressing the need for adequate time to prepare for GHG regulation. "These comments make clear that more time will be needed beyond Jan. 2, 2011, before permitting of many GHG stationary sources can begin," the reconsideration stated. "Thus, EPA will be taking additional action in the near future in the context of the Tailoring Rule to address GHG-specific circumstances that will exist beyond Jan. 2, 2011." Jackson has previously publicly stated that the final tailoring rule will likely raise the emissions threshold from 25,000 tons per year of carbon dioxide equivalent to 100,000 tons per year, which would leave only the largest sources of GHGs to be regulated in 2011.

The document issued today by the EPA also addressed the use of best available control technology (BACT) as a way to promote energy efficient technologies. The agency stated that the use of BACT could indirectly result in lower GHG emissions even though it doesn't currently apply to GHGs. Therefore, given the importance of its potential emissions benefits, the agency is developing BACT guidance for GHGs and will issue it "in the near future."

The EPA also posted its entire reconsideration online.