By Robynn Andracsek, P.E., Burns & McDonnell and Contributing Editor

In March 2011, the Environmental Protection Agency released with much fanfare a guidance document to provide “the basic information that permit writers and applicants need to address greenhouse gas (GHG) emissions in permits.” However, the document came with a significant disclaimer:

“The fundamental aspects of the [Prevention of Significant Deterioration] PSD and title V permitting programs are generally not affected by the integration of GHGs into these programs. Therefore, this document does not elaborate on topics such as public notice requirements, aggregation of related physical or operational changes, the definition of a stationary source, debottlenecking, treatment of fugitive emissions, determining creditable emissions reductions, or routine maintenance, repair and replacement. Readers [who] are interested in understanding these aspects of the federal program should rely on current Agency rules and guidance when permitting GHGs.” [emphasis added]

What the states and the regulated community needed, probably more than they needed a GHG PSD guidance, was exactly what this paragraph said will not be coming after 20 years of waiting: clear and concise instructions on New Source Review (NSR) permitting.

EPA has several repositories of guidance documents including the Applicability Determination Index, the RACT/BACT/LAER Clearinghouse and the Policy and Guidance Database. Most of these address specific situations and are difficult to reapply or generalize. The only general guidance document is the draft New Source Review Workshop Manual, which is two decades old and still not finalized. The main problem with these guidance sources is that they can be contradictory. It’s not enough to find an applicable precedent; you must make sure that no more recent document supersedes it.

In 2002, the EPA under President George W. Bush had the right idea with its attempt to “reform” NSR, but went about it in the wrong way. The problem was that the reforms were planned in secret and moved beyond what the Clean Air Act allowed, according to the courts. The current EPA is still in the process of rolling back Bush-era reforms covering fugitive emissions, aggregation and grandfathering.

Misunderstandings and erroneous interpretations of NSR issues have costly outcomes. The issue of defining “routine maintenance” alone has led to dozens of lawsuits against coal-fired power plants with settlements resulting in the expenditure of billions of dollars for air pollution control equipment retrofits, supplemental environmental projects and civil penalties. To this day, the exemption for “routine maintenance, repair and replacement” is not defined in the regulations. EPA guidance directs plant operators to conduct a highly subjective analysis based on the four-factor test of the 1990 WEPCo court case: nature and extent, purpose, frequency and cost.

The EPA’s March 2011 GHG guidance isn’t even all-inclusive on the topic of greenhouse gas permitting. There are separate repositories of comment letters on proposed GHG permitting actions, a “frequently asked questions” document and a separate question-and-answer web page, with yet another significant declaimer:

“The question and answer documents (Q&A) on this page explain the requirements of EPA regulations, describe EPA policies, and recommend procedures for permitting authorities to use to ensure that permitting decisions are consistent with applicable regulations. These Q&A are not a rule or regulation, and the guidance they contain may not apply to a particular situation based upon the individual facts and circumstances. These Q&A do not change or substitute for any law, regulation, or any other legally binding requirement and are not legally enforceable.”

The only way to be reasonably confident of a regulatory interpretation is to make a formal, written applicability determination request to EPA. If you find a regulator at EPA who gives good informal guidance (and I know of a few such people) save their phone number because the “current Agency rules and guidance” are not much help.

EPA constantly refers to the GHG Tailoring Rule as establishing a “common sense approach.” But if EPA can’t clearly explain its own rules, how is industry supposed to comply?