EPA Proposes Changes to Its Reviews Of New Source Performance Standards

Key Development: EPA proposes forgoing reviews of new source performance standards in certain circumstances, including when no new or modified sources are expected in the next eight years.

Potential Impact: EPA has identified 14 source categories that would not be subject to reviews.

Next Step: Comments are due Nov. 23.

By Jessica Coomes 

The Environmental Protection Agency is proposing to change the way it conducts its eight-year reviews of new source performance standards, aiming to comply with an executive order intended to improve the regulatory system.

Under the proposal, EPA would forgo reviews of the standards if it finds the current level of control is appropriate, no new or modified sources are expected in the next eight years, or more stringent Clean Air Act standards exist for the sources, according to a Federal Register notice to be published Oct. 24.

EPA identified 14 source categories that would not be subject to reviews based on the three criteria, including primary zinc smelters and magnetic tape coating facilities, although the agency said the review process would not change for the vast majority of sources.

New source performance standards are technology-based standards issued under Section 111 of the Clean Air Act that apply when a new source is constructed or an existing source is modified.

The law requires EPA to review the standards every eight years and revise them if necessary, although it says a review may not be “appropriate in light of readily available information on the efficacy of such standard.”

EPA will accept comments on the advance notice of proposed rulemaking through Nov. 23.

Executive Order Addressed.

“[T]his proposed approach will provide a streamlined process to ensure that public and private resources are focused on the rules that provide the greatest public health protection and are most likely to warrant revision to include current technology and eliminate obsolete or unnecessary requirements,” EPA said in the Federal Register notice.

The rulemaking addresses Executive Order No. 13,563, “Improving Regulation and Regulatory Review,” which President Obama issued Jan. 18.

The executive order requires an agency to “periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.”

EPA Outlines Three Criteria.

EPA identified three criteria that, if they exist for a source, would mean a review is unnecessary.

First, a review would not be appropriate if information about control technology suggests the review would not lead to more stringent emissions limits, a greater level of control, or environmental and health benefits.

Second, EPA would forgo a review if it does not anticipate any sources in a category would be modified or newly constructed in the next eight years.

Third, no review would be conducted if the agency determines there is another air pollution regulatory program under the Clean Air Act—such as national emissions standards for hazardous air pollutants—that is applicable to the same pollutants or surrogates from the same sources. The other program would have to be at least as stringent as the new source performance standards (NSPS).

“The intent of this criterion is to avoid reviewing NSPS to adopt more stringent emission limitations that are already being achieved by another regulation, and, thus, providing no or limited actual additional health and welfare benefit while redirecting resources from revision of standards where there are potential significant emission decreases,” EPA said.

Even if one or more of the criteria are met, a review still may be appropriate under certain circumstances, EPA said. For example, a review may be necessary if environmental justice concerns exist.

Comments may be filed at http://www.regulations.gov under Docket No. EPA-HQ-OAR-2010-0223.

By Jessica Coomes 

For more information from EPA, contact Janice Godfrey in the Policy and Strategies Group of the Office of Air Quality Planning and Standards at (919) 541-3391 or godfrey.janice@epa.gov.