NPRA calls EPA's final GHG tailoring rule 'unlawful'

The US Environmental Protection Agency released its final rule aimed at controlling greenhouse gas (GHG) emissions from the largest stationary domestic sources while exempting millions of smaller facilities from GHG regulation under the Clean Air Act.

Nick Snow
OGJ Washington Editor

WASHINGTON, DC, May 14 -- The US Environmental Protection Agency released its final rule aimed at controlling greenhouse gas (GHG) emissions from the largest stationary domestic sources while exempting millions of smaller facilities from GHG regulation under the Clean Air Act. The National Petrochemical & Refiners Association immediately called this so-called “tailoring” regulation unlawful.

The regulation applies to refineries, electric power plants, and other major industrial facilities emitting at least 100,000 tons/year (tpy) of GHGs starting in July 2011. Best available control technologies will be required for new construction or significant modifications.

EPA said it would begin to apply in January 2011 to large facilities already obtaining CAA permits for other pollutants that would need to include GHGs if they increase these emissions by at least 75,000 tpy.

The regulation reflects an approach that will quickly regulate those facilities responsible for 70% of the GHGs from stationary sources in the US, according to EPA Administrator Lisa P. Jackson. “After extensive study, debate and hundreds of thousands of public comments, EPA has set common-sense thresholds for [GHGs] that will spark clean technology innovation and protect small businesses and farms,” she said on May 13.

But Gregory M. Scott, NPRA’s executive vice-president and general counsel, said the rule’s 100,000 tpy threshold differs from that of CAA, which is 250 tpy. “It’s the job of federal agencies like EPA to regulate, not legislate,” Scott said, adding, “If EPA wants changes in the [CAA], it should propose them to Congress, not unlawfully take on the role of Congress.”

Scott said EPA has adopted “a tortured and legally unsupportable interpretation of the plain wording of the [CAA] in an effort to escape a regulatory train wreck of its own creation. If EPA is allowed to get away with this, it sets a dangerous precedent for unelected officials in federal agencies to change laws approved by the elected representatives of the American people.”

The agency estimated that about 900 additional permitting actions covering new sources and modifications to existing sources would be subject to review each year under the new GHG emissions thresholds. In addition, 550 sources will need to obtain operating permits for the first time because of their GHG emissions, it said.

EPA said the final rule addresses six GHGs: carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride.

Contact Nick Snow at nicks@pennwell.com.

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