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Maine DEP To Require Air Licenses for Greenhouse Gas Emissions
Alert
10.29.2010
Yesterday, the Maine Department of Environmental Protection ("Maine DEP") issued a notice that it is proposing to amend Maine's air regulations to add a definition of greenhouse gases ("GHGs") and CO2 equivalent emissions ("CO2e") that will allow Maine DEP to issue air licenses for GHG emissions. This proposal, if adopted, will affect all new air licenses and those of virtually all existing major sources in Maine.
Maine DEP's Proposed Amendments are designed to implement EPA's May 13, 2010 "Tailoring Rule" that set thresholds for GHG emissions that define when permits under the Clean Air Act's New Source Review Prevention of Significant Deterioration ("PSD") and Title V Operating Permit programs are required for new and existing industrial facilities. The Maine DEP's Proposed Amendments add GHGs to the list of pollutants that would be regulated under Maine's air licensing requirements for new major sources and major modifications to existing sources. The Proposed Amendments appear to exempt facilities from obtaining an air license for CO2e for minor sources and minor modifications.
Maine DEP's Proposed Amendments to its Chapter 100 air regulations are similar in many respects to the requirements in EPA's Tailoring Rule. For example, the definition of GHGs and CO2e is the same, the threshold limits are also same, and the threshold limits in both Maine DEP's Proposal and EPA's Tailoring Rule apply regardless of the source of the emissions.
There are differences, however, between EPA's Tailoring Rule and Maine DEP's proposal. Notably, unlike the federal Tailoring Rule, Maine DEP's Proposed Amendments do not include a phase-in period. For example, under Maine's proposal, as soon as the Amendments become effective new facilities that have the potential to emit CO2e greater than 100,000 tons per year ("tpy") or facilities that make modifications that result in an increase of 75,000 tpy of CO2e will have to obtain an air emissions license.
Under EPA's Tailoring Rule, however, the threshold requirements are phased in over time. For example, Clean Air Act permitting requirements will not be expanded to cover all new facilities with CO2e of at least 100,000 tpy and modifications at existing facilities that would increase CO2e by at least 75,000 tpy until July 2011.
There are also several aspects of Maine DEP's Proposed Amendments that are currently unclear. For example, it is unclear whether Best Available Control Technology analyses for new minor sources or Best Practical Treatment analyses for minor modifications must consider GHGs after the amendments become effective.
Maine DEP will hold a public hearing regarding the Proposed Amendments on November 18, 2010 at the Elks Lodge in Augusta. The deadline for making comments on the proposed amendments is November 29, 2010.
If you have questions regarding this Proposed Amendment or would like assistance making formal comments on the proposed rule, please contact Jeff Talbert or Steven Hudson with Preti Flaherty's Climate Strategy Group at jtalbert@preti.com or shudson@preti.com.