New Source Review Reform Vera S. Kornylak, Associate Regional Counsel EPA Region 4 Office of Regional Counsel and Gregg Worley, Chief, Air Permits Section,

New Source Review ReformNew Source Review Reform

Vera S. Kornylak, Associate Regional CounselEPA Region 4 Office of Regional CounselandGregg Worley, Chief, Air Permits Section, EPA Region 4 Air, Pesticides & Toxics Management Division

Vera S. Kornylak, Associate Regional CounselEPA Region 4 Office of Regional CounselandGregg Worley, Chief, Air Permits Section, EPA Region 4 Air, Pesticides & Toxics Management Division

Presented By:

Overview of NSR Reform: Major EPA Rulemakings


67 FR 80186, December 31, 2002 (“2002 NSR Reform Rules”): EPA finalized its new source review reform rules which included revisions to five major areas of the rules.

States must submit revisions implementing the minimum program requirements outlined in the Rule by January 2, 2006.

68 FR 61248, October 27, 2003: EPA finalized additional rules, called the “Equipment Replacement Rule,” pertaining to routine maintenance, repair, and replacement.

67 FR 80186, December 31, 2002 (“2002 NSR Reform Rules”): EPA finalized its new source review reform rules which included revisions to five major areas of the rules.

States must submit revisions implementing the minimum program requirements outlined in the Rule by January 2, 2006.

68 FR 61248, October 27, 2003: EPA finalized additional rules, called the “Equipment Replacement Rule,” pertaining to routine maintenance, repair, and replacement.



70 FR 61081, October 20, 2005: EPA published proposed rules to modify the emissions test for NSR purposes for existing electric generating units (EGUs).This proposal does not apply to

new EGUs.Comments are due by

December 19, 2005.

70 FR 61081, October 20, 2005: EPA published proposed rules to modify the emissions test for NSR purposes for existing electric generating units (EGUs).This proposal does not apply to

new EGUs.Comments are due by

December 19, 2005.

Summary of EGU Emissions Test Proposal (October 20, 2005)

Summary of EGU Emissions Test Proposal (October 20, 2005)

The proposed emissions test is the same as the New Source Performance Standards (NSPS) test in CAA Section 111(a)(4). This compares maximum hourly emissions achievable at a unit during the past five years to the maximum hourly emissions achievable at that unit after the change.

Alternatively, the proposal seeks comment on a test that would compare maximum hourly emissions achieved before and after the change.

The proposed emissions test is the same as the New Source Performance Standards (NSPS) test in CAA Section 111(a)(4). This compares maximum hourly emissions achievable at a unit during the past five years to the maximum hourly emissions achievable at that unit after the change.

Alternatively, the proposal seeks comment on a test that would compare maximum hourly emissions achieved before and after the change.

Summary of EGU Emissions Test Proposal (Continued)

Summary of EGU Emissions Test Proposal (Continued)

The proposal further seeks comment on an applicability test based on mass of emissions per unit of energy output.

With regards to the NSPS rules, the proposal seeks comment on whether to revise the NSPS regulations to include a maximum achieved emissions test or output test in lieu of or in addition to the maximum achievable hourly emissions test.

The proposal further seeks comment on an applicability test based on mass of emissions per unit of energy output.

With regards to the NSPS rules, the proposal seeks comment on whether to revise the NSPS regulations to include a maximum achieved emissions test or output test in lieu of or in addition to the maximum achievable hourly emissions test.

NSR Related LitigationNSR Related Litigation

New York et al. v. United States, 413 F. 3d 3 (DC Cir. 2005) - Challenge to NSR Reform

Rules

Decision published on June 24, 2005:vacated provisions for pollution control projects and clean units;

remanded provisions regarding recordkeeping (40 CFR 52.21(r)(6)) and “reasonable possibility;”

upheld the NSR applicability test generally;

New York et al. v. United States, 413 F. 3d 3 (DC Cir. 2005) - Challenge to NSR Reform

Rules

Decision published on June 24, 2005:vacated provisions for pollution control projects and clean units;

remanded provisions regarding recordkeeping (40 CFR 52.21(r)(6)) and “reasonable possibility;”

upheld the NSR applicability test generally;


New York et al. v. United States (continued):

EPA filed a petition for rehearing en banc re: applicability test for clean units and motion for clarification on the retroactivity of the PCP vacatur;

Other petitioners filed motions for reconsideration on other issues, including the baseline applicability test.

New York et al. v. United States (continued):

EPA filed a petition for rehearing en banc re: applicability test for clean units and motion for clarification on the retroactivity of the PCP vacatur;

Other petitioners filed motions for reconsideration on other issues, including the baseline applicability test.


ERP Litigation (New York et al. v. U.S., filed in D.C. Circuit)

69 FR 40274 (July 1, 2004) – ERP Rule stayed.

70 FR 33838 (June 10, 2005) – EPA final reconsideration on the ERP rule (no changes); Challenges filed to reconsideration.

ERP Litigation (New York et al. v. U.S., filed in D.C. Circuit)

69 FR 40274 (July 1, 2004) – ERP Rule stayed.

70 FR 33838 (June 10, 2005) – EPA final reconsideration on the ERP rule (no changes); Challenges filed to reconsideration.


ERP Litigation (Continued)

Issue is EPA’s authority to exempt RMRR from regulation in general, as well as within the parameters of the ERP.

EPA brief due 11/17/05.Oral argument likely in early,

2006.

ERP Litigation (Continued)

Issue is EPA’s authority to exempt RMRR from regulation in general, as well as within the parameters of the ERP.

EPA brief due 11/17/05.Oral argument likely in early,

2006.


U.S. v. Duke Energy Corp., 411 F.3d 539 (4th Cir. 2005).

Complaint filed by EPA alleging NSR violations for modification at plants owned by Duke Energy.

Congress mandated that the PSD definition of “modification” be identical to the NSPS definition of “modification.”

U.S. v. Duke Energy Corp., 411 F.3d 539 (4th Cir. 2005).

Complaint filed by EPA alleging NSR violations for modification at plants owned by Duke Energy.

Congress mandated that the PSD definition of “modification” be identical to the NSPS definition of “modification.”


U.S. v. Duke Energy Corp. (Continued):

RMRR issue re: routine at a unit versus routine in the industry was not reached as part of decision.

Technically applies only to states within the 4th Circuit Court of Appeals – which includes North and South Carolina.

U.S. v. Duke Energy Corp. (Continued):

RMRR issue re: routine at a unit versus routine in the industry was not reached as part of decision.

Technically applies only to states within the 4th Circuit Court of Appeals – which includes North and South Carolina.

Region 4 Status Update on State Submittals of NSR

Reform Rules


Reform RulesEPA Region 4 States are farthest along

in the nation towards meeting the January, 2006 deadline.

State rules may be different, but must be equivalent to federal requirements. State rules may be more stringent.

EPA Region 4 staff working to provide draft/prehearing comments whenever possible, along with formal comments.

EPA Region 4 States are farthest along in the nation towards meeting the January, 2006 deadline.

State rules may be different, but must be equivalent to federal requirements. State rules may be more stringent.

EPA Region 4 staff working to provide draft/prehearing comments whenever possible, along with formal comments.

Region 4 Status Update on State Submittals of NSR Reform RulesRegion 4 Status Update on State Submittals of NSR Reform Rules

Alabama EPA provided prehearing comments

Florida EPA provided prehearing comments

Georgia EPA reviewing prehearing

Kentucky SIP submittal received 9/2004; rules are state effective

Mississippi SIP submittal received 8/2005; rules are state effective

North Carolina NNSR provisions are state effective; EPA provided comments

Mecklenburg Co., NC EPA received prehearing submittal


Reform Rules


Reform RulesSouth Carolina SIP Submittal received

7/2005; rules are state effective

Tennessee EPA provided prehearing comments

Nashville, TN EPA reviewing prehearing

Hamilton Co., TN EPA reviewing draft prehearing.

Chattanooga, TN EPA provided prehearing comments


Reform Rules


Reform RulesAreas not listed have not provided

any submittals to EPA.

General SIP Review Process:Regional review and evaluationPresentation to EPA HQ

(particularly focus on differences from federal rule)

Proposal in Federal RegisterPublic CommentFinal approval

Areas not listed have not provided any submittals to EPA.

General SIP Review Process:Regional review and evaluationPresentation to EPA HQ

(particularly focus on differences from federal rule)

Proposal in Federal RegisterPublic CommentFinal approval

Upcoming DevelopmentsUpcoming Developments

Reconsideration in D.C. Circuit.ERP Litigation.Congressional amendments to

CAA requiring more NSR Reform.Ongoing utilities litigation in

Region 4.

Reconsideration in D.C. Circuit.ERP Litigation.Congressional amendments to

CAA requiring more NSR Reform.Ongoing utilities litigation in

Region 4.

EPA Region 4 ContactsEPA Region 4 Contacts

Gregg Worley, ChiefAir Permits SectionEPA Region [email protected]

v

Kelly FortinAir Permits [email protected]

Gregg Worley, ChiefAir Permits SectionEPA Region [email protected]

v

Kelly FortinAir Permits [email protected]

Sean LakemanRegulatory Planning

Section (SIPs)[email protected]

v

Vera S. KornylakOffice of Regional

[email protected]

Sean LakemanRegulatory Planning

Section (SIPs)[email protected]

v

Vera S. KornylakOffice of Regional

[email protected]

Documents

New Source Review Reform Vera S. Kornylak, Associate Regional Counsel EPA Region 4 Office of Regional Counsel and Gregg Worley, Chief, Air Permits Section,