The vast majority of states are moving full speed ahead to begin permitting emissions of greenhouse gases (GHGs) under the Clean Air Act and expect to complete revisions of state and/or local rules by, or within a few months after, Jan. 2, 2011, the date that GHG permitting under the Act’s Prevention of Significant Deterioration (PSD) and Title V programs begins.
According to a report dated September 15 from the National Association of Clean Air Agencies, nearly 80 percent of states indicated they will be ready to permit the largest sources of GHGs by the time permitting requirements take effect.
The U.S. Environmental Protection Agency (EPA) issued rules earlier this year regulating GHGs under the Clean Air Act, including rules that exempt smaller sources and subject only the largest GHG emitters to permit requirements. In response to calls from the states for more time to revise state and local regulations to exempt smaller sources, the agency delayed the start of GHG permitting until Jan. 2, 2011.
In December 2009, pursuant to the Supreme Court’s 2007 decision in Massachusetts v. EPA that GHGs are an air pollutant under the Clean Air Act, EPA determined that GHGs contribute to air pollution that endangers public health and welfare. Following that finding, EPA and the U.S. Department of Transportation issued a final rule controlling GHGs from new motor vehicles and engines on April 1, 2010. Once GHGs become subject to regulation under the Clean Air Act, permitting provisions under PSD and Title V were triggered, requiring the implementation of control technologies to abate GHG emissions.
The PSD and Title V Greenhouse Gas Tailoring Rule was promulgated in June 2010 to address concerns regarding the administrative burden expected to result from issuing millions of permits to sources emitting small amounts of GHGs. The Tailoring Rule raised the thresholds for GHG permitting to include only the largest sources and extended the onset of GHG permitting to give states time to revise their rules to include the Tailoring Rule requirements and exempt smaller sources. Most states are moving forward with legislative and/or regulatory processes to incorporate the Tailoring Rule provisions.
In the final Tailoring Rule, EPA asked states to send letters to the agency by Aug. 2, 2010 with information regarding how the state intends to implement the Tailoring Rule. EPA asked each state to respond by indicating whether or not the state needs to undertake a regulatory or legislative process to incorporate the provisions of the Tailoring Rule, as well as the timeline for completing any such process. States were also asked to notify EPA if they do not have any authority to permit GHGs and, if not, to indicate whether or not they intend to revise their rules to include GHGs.
The National Association of Clean Air Agencies reviewed letters from all applicable states. Its analysis shows the "vast majority" of states are working to prepare for GHG permitting and incorporate the provisions of the Tailoring Rule into applicable state and local rules and State Implementation Plans (SIPs) as soon as possible. Nearly 80 percent of states expect to have rules in place by Jan. 2, 2011 or shortly thereafter.
Of the minority of states that will not yet have rules in place, most are working to incorporate provisions of the Tailoring Rule, but will be delayed due to state legislative and/or regulatory requirements.
Three states – Nebraska, Nevada and the District of Columbia – have not submitted Tailoring Rule letters to EPA as of September 2010, though neither Nevada nor the District of Columbia currently has a SIP-approved PSD program. In California, local air pollution control agencies throughout the state are responsible for stationary source permitting and the PSD program in most of California is implemented by EPA under federal regulations.
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