NSR Reform: EPA’s Missed Opportunity

By Robynn Andracsek, P.E., Burns & McDonnell and contributing editor

THE NEW SOURCE REVIEW (NSR) program of the Clean Air Act needs reform. In 2002, the Bush EPA attempted to reform the NSR program with common-sense changes such as exemptions for pollution control projects, routine maintenance, and clean unit tests.

All of these exemptions were later vacated by the courts. Likewise, several reforms from 2006 (debottlenecking, aggregation, and project netting) were withdrawn or delayed indefinitely. Ultimately, these reforms died due to EPA’s attempt to regulate through memos and policies and not through changing the Clean Air Act itself, allowing subsequent administrations to reverse the reforms.

History repeats itself with the Trump EPA’s efforts to again reform NSR, focusing on the actual-to-projected-actual applicability test, project emissions accounting, aggregation, and routine maintenance, repair and replacement (RMRR). However, by again focusing on a memo/guidance (not regulatory) methodology, these reforms are likely to be reversed by the next Democratic president.

I propose that EPA consider the following in the next Clean Air Act Amendments:

1. Define “routine” maintenance. An exception without definition hinders both industry and environmental groups. Regardless of the new regulatory meaning, the existence of a definition would add clarity and decrease risk for industry. If the WEPCO four-factor test (nature and extent, purpose, frequency, cost) is the standard, then EPA should codify it. Alternately, make the definition match the New Source Performance program.

2. Create a de minimis level for a BACT analysis. If a group of similar equipment in a project subject to PSD is below 2 tpy (or some other threshold) of each PSD pollutant, that group of equipment doesn’t have to be analyzed for BACT. For example, there is little value in analyzing storage pile fugitives if the potential to emit is 0.9 tons per year of particulate matter and there is little to no impact on air quality as shown through dispersion modeling.

3. Create a list of Best Available Control Technology (BACT) insignificant modifications and equipment, such as exists for the Title V program. The emissions would still count towards the Prevention of Significant Deterioration (PSD) applicability thresholds, but a BACT analysis would not be required. Examples include emergency diesel generators subject to NSPS limits, natural gas fired heaters and boilers under 10 million British thermal units per hour (MMBtu/hr), and cooling towers with 0.005 percent drift elimination. Another good source for equipment to consider for insignificance is the Texas Commission on Environmental Quality’s Permit by Rule (PBR) list.

“It’s time to retackle this important issue and actually help industry generate electricity while protecting our air.”

4. Codify BACT for common, simple equipment. BACT for NOx emissions from natural gas-fired heaters and boilers between 10 and 50 MMBtu/hr should be low nitrogen oxide (NOx) burners, low sulfur fuel, and good combustion practices. BACT for VOC emissions from diesel storage tanks (a low volatility material) should be submerged loading. Preparing, analyzing and defending a BACT analysis for trivial equipment wastes time and effort that could be better spent on protecting the air by driving innovation to control the larger emission units.

5. Reattempt a pollution control project PSD exclusion but write it into a Clean Air Act Amendment passed by Congress instead of a rule in the Code of Federal Regulations where it can be overturned. An equilibrium can be found that allows efficiency improvements without triggering expensive add-on controls. Encourage utilities to run the most efficient equipment instead of penalizing them for not maximizing emissions in the “past actual” period.

A PSD permit takes 9-18 months for issuance and hinders industry unnecessarily. By focusing on the significant emission units and by providing the definitions that are missing, EPA, state agencies, applicants, and intervenors can concentrate on balancing their different perspectives and safeguard our natural resources. No, it won’t be easy, but it is worth doing right.

Inertia exists in the Clean Air Act. One administration’s memos get reversed by the next administration. Likewise, regulations which get ensnared in the court system hurt, not help, utilities. How much effort has the industry wasted on the Clean Air Mercury Rule, Clean Power Plan, or Clean Air Interstate Rule (CAIR)/Cross State Air Pollution Rule (CSAPR)? The Clean Air Act was last amended in 1990. It’s time to retackle this important issue and actually help industry generate electricity while protecting our air.