New Source Review Clarification Adopted by EPA

In 2006 EPA proposed clarifying its approach to determining when air emissions increases trigger New Source Review (NSR). New Source Review is one of the most contentious aspects of air pollution regulation, because it can result in installation of expensive new air pollution control equipment. When an air pollution source modifies its operations and increases air emissions above certain levels, NSR is triggered. Often this is not an issue - when a new boiler is added to a power plant, NSR review is likely to be implicated. But what happens when several minor changes occur at a plant - are they to be aggregated? Or what about "debottlenecking" that might occur as a result of process changes, increasing emissions even though no new air source is added? These are frequent occurrences at manufacturing sites, and it has been difficult for industry and state regulators to know exactly how they are evaluated for purposes of NSR.

EPA has recently finalized its guidance on these subjects, which my colleague Anne Blankenship advises me can be found at EPA's website. While the final action has not been published in the Federal Register, you can see the original proposal at 71 Federal Register 54325 (Sept 14, 2006) (not all this proposal was adopted) and you can review the reasons for supporting the EPA proposal from comments of the National Association of Manufacturers filed in 2006. For those interested, this article from Thomas Clarke gives a legal background on what NSR is. For more on NSR in West Virginia, contact Anne Blankenship at acb@ramlaw.com.