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EPA Proposes to Revoke Clean Air Act Aggregation Rule
Alert
03.30.2010
Today, the U.S. Environmental Protection Agency announced that it is proposing to revoke the Bush Administration's so-called "Aggregation Rule" put in place under the New Source Review program of the Clean Air Act. The rule, set to become effective on May 18, 2010, would have a delayed effective date (until November 18, 2010) under this proposal. The Aggregation Rule would change the way existing industrial facilities and permitting authorities calculate air emissions from modifications to existing facilities and was an attempt to clarify whether a facility needed a Clean Air Act permit.
The Aggregation Rule would require facilities and permitting authorities to combine emissions from plant modifications when those activities are "substantially related." Under this rule there is a presumption that modifications that are separated by three or more years are not substantially related. Moreover, facilities would have to show that changes have more in common than their timing of construction and the fact that the changes both support the overall basic function of the plant.
EPA's proposal to revoke the rule was made in response to a January 30, 2009 petition made by Natural Resources Defense Council ("NRDC"). NRDC argued that the Aggregation Rule impermissibly narrowed the number and type of projects that would be considered for aggregation. Today, EPA stated that it is concerned that aggregation will make its New Source Review permitting program less effective by allowing facilities to increase emissions that may impact air quality without a thorough review.
EPA is proposing to go back to its original policy, which required combining projects based on a broader range of factors on a case-by-case basis. The agency has stated that "this would ensure that potential emissions increases that could harm air quality do not avoid review and the installation of state-of-the-art pollution controls."
EPA also is proposing to extend the effective date of the Aggregation Rule an additional six months (from May 18, 2010 to November 18, 2010) to give the agency time to complete its reconsideration. EPA will take comment on the proposal for 30 days after it is published in the Federal Register (expected shortly).
New Source Review (NSR) is a pre-construction permitting program that was established as part of the 1977 Clean Air Act Amendments and modified in the 1990 Amendments. Among other things, the NSR program requires that covered facilities install pollution control technology at new plants or existing plants that are undergoing a major modification.
Questions? If you have questions regarding this proposed rule, the impacts that it may have for your company, or would like assistance understanding the proposed changes and making public comment, please contact Jeff Talbert or Steve Hudson at 207-791-3000.