EPA Moves to Rescind Some Greenhouse Gas Permits Following Supreme Court Decision

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By Andrew Childers

April 30 — The Environmental Protection Agency in a direct final rule detailed steps that states may take to rescind some greenhouse gas permits in accordance with a U.S. Supreme Court decision limiting the scope of the permitting program.

The final rule (RIN 2060-AS57), released April 30, does not rescind any prevention of significant deterioration (PSD) permits by itself. Rather, it provides a mechanism for state officials to rescind greenhouse gas permits that are no longer required.

The rule would allow industrial sources that were required to obtain PSD permits based solely on their greenhouse gas emissions once the EPA implemented the second phase of its permitting program July 1, 2011, to petition state or federal officials to rescind that permit. The recision authority also would allow permitting officials to revise Title V operating permits to reflect that change.

The permitting provisions at 40 C.F.R. Part 52.21 currently allow the EPA and states to rescind only those permits issued on or before July 30, 1987. The EPA direct final rule would amend that recision authority to include those greenhouse gas permits no longer allowed following a 2014 Supreme Court decision limiting the scope of the permitting requirements.

The rule doesn't quantify how many industrial sources could be affected, but the EPA said that “several sources” could seek to have their permits rescinded. The EPA and states have issued 196 prevention of significant deterioration permits with greenhouse gas requirements as of August 2014, according to agency data.

Bill Becker, executive director of the National Association of Clean Air Agencies, told Bloomberg BNA in an April 30 e-mail that he did not believe that many permits would be affected.

Court Limited Permitting 

As part of the first step of its greenhouse gas permitting program, only those sources already subject to permitting requirements for other pollutants were initially required to obtain permits for greenhouse gases as well. The second step, which took effect July 1, 2011, expanded the program to include those sources that would trigger permitting requirements based solely on their greenhouse gases.

Those permits are no longer applicable since the Supreme Court held that only those sources that would be subject to permitting requirements for conventional pollutants must also permit their greenhouse gas emissions (Util. Air Regulatory Grp. v. EPA, 134 S.Ct. 2427, 78 ERC 1585, 2014 BL 172973 (S.C. 2014) ).

The U.S. Court of Appeals for the District of Columbia Circuit on April 10 vacated portions of the EPA's tailoring rule in accordance with the Supreme Court decision (Coal. for Responsible Regulation v. EPA, D.C. Cir., No. 09-01322, 4/10/15).

The EPA also plans to issue the direct final rule as a proposed rule.. If it receives any adverse comments on the direct final rule, the agency will proceed through the proposed rule process.

The direct final rule will take effect 60 days after publication in the Federal Register.

To contact the reporter on this story: Andrew Childers in Washington at achilders@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

The EPA direct final rule is available at http://www.epa.gov/airquality/permits/actions/20150430df.pdf.

For more information, contact Jessica Montañez in the EPA's Office of Air Quality Planning and Standards at (919) 541-3407 or at montanez.jessica@epa.gov.