EPA Proposes PSD Rule – and Issues a Direct Final Rule


Source: SOCMA
Related Topics: Clean Air Act (as Amended) Climate Change

Yesterday, EPA issued both proposed, and direct final rules “to amend the PSD program regulations to allow for rescission of certain PSD Permits issued by EPA and delegated reviewing authorities under Step 2 of the PSD and Title V Greenhouse Gas (GHG) Tailoring Rule.”  These actions are a direct response to the Supreme Court’s 2014 decision (Utility Air Regulatory Group v. EPA) which found that EPA may not treat GHG as an air pollutant when determining whether a source (or modification of a source) is required to obtain a PSD preconstruction permit or Title V operating permit.  The Court found that EPA regulations implementing that approach for determining whether a PSD or Title V permit is necessary (Step 2 of the Tailoring Rule) were invalid.

Based on the opinion, the DC Circuit Court vacated some provisions implementing Step 2 of the Tailoring Rule.  Now, Step 2 sources – those that triggered permitting requirements based solely on their GHG emissions, no longer are required to get a permit. 

This direct final rule provides the regulatory mechanism which EPA and delegated permitting authorities need  to rescind PSD Step 2 permits issued under the invalid regulations. 

Written comments on the proposal are due on June 8.  If the Agency receives no adverse comment on the proposal – and it does not expect to - it will not take any further action on the proposal and the direct final rule published simultaneously will take effect on July 6.  If there is adverse comment, EPA will publish a withdrawal which announces that the direct final rule will not take effect. 

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