EPA Finalizes Reconsideration of “Johnson Memo;” Addresses Stationary Sources and Greenhouse Gas Permitting


Source: SOCMA
Related Topics: Climate Change

On March 29, EPA released the prepublished version of its final action reconsidering the “Johnson Memo.”  This is the first of a series of greenhouse gas (GHG) rulemakings which should be finalized within the next 2-3 weeks. 

One practical implication of this action is that no stationary sources will be required to get Clean Air Act permits that cover GHG before January 2011. 

The ”Johnson Memo” refers to a memo issued in December 2008 by former EPA Administrator Stephen Johnson.  The memo addressed when the Clean Air Act’s Prevention of Significant Deterioration (PSD) program would cover a pollutant, including GHG such as carbon dioxide. 

The memo stated that:

  • the PSD program “…would apply to pollutants that are subject to either a provision of the CAA or a regulation adopted by EPA under the CAA that requires actual control of emissions of that pollutant” ; and that
  • pollutants for which EPA regulations only required monitoring or reporting – such as provisions for C02 in the Acid Rain Program – are not subject to PSD Permitting. 

Significantly, this interpretation meant PSD permitting would NOT be triggered for GHGs until a final nationwide rule required the actual control of emissions of the pollutant.   In October 2009, EPA proposed reconsidering this interpretation.

In the March 29, 2010 final action, EPA

  1. confirms its original interpretation that PSD permitting would NOT be triggered for GHGs until a final nationwide rule required the actual control of emissions of the pollutant.
  2. clarifies that these permitting requirements are triggered when the control requirement of the nationwide rule “takes effect” – rather than at signature, Federal Register publication, or effective date of the rule after publication in the Federal Register. 
  3. explains that, for GHGs, “takes effect” means when the first national rule controlling GHGs takes effect.
    That rule is expected to be the light-duty vehicle (LDV) GHG rule, which is expected to be finalized in the next couple of days.  That LDV rule  is also expected to trigger the PSD construction and operating permit requirements for the largest emitting facilities in January 2011.
  4. notes that this interpretation of “subject to regulation” applies for Title V permitting as well
  5. confirms that there is no grandfathering of pending permit applications.  

The final GHG “Tailoring Rule,” expected in the near future, will establish the threshold level of GHGs that facilities can emit before having to include limits for these emissions in their permits.  The limit in the proposed rule was 25,000 tons per year; the final rule is expected to have a higher threshold of 50,000 or 75,000 tons per year.

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