Two recent court decisions have clouded the future of NSR reform and enforcement. The first case, U.S. v. Duke Energy Corporation, handed down on June 15, 2005 by the 4th Circuit Court of Appeals could potentially affect the way in which a modification under NSR is defined. The Court found that EPA must use a consistent definition and emission comparison to define a source modification. The Court held that the definition of modification under the New Source Performance Standards (NSPS) program (i.e., covering only those physical or process or operational changes that increase hourly emissions) was the more appropriate applicability test and that the Clean Air Act does not support the NSR definition that is based on comparison of annual emissions. Although the decision only directly affects states in the 4th Circuit (West Virginia, Virginia, Maryland, North and South Carolina), it is doubtful that EPA will quietly accept the decision. They are expected to appeal and seek a rehearing.
The second case, New York, et al. v. U.S. EPA, handed down on June 24, 2005 by the D.C. Circuit Court of Appeals ruled on a challenge to EPA’s NSR Reform rules. The Court upheld main elements of the rule’s actual-to-projected-actual emission test, and accepted the 10-year look-back period to establish 24-month baseline actual emission levels, the demand growth exclusion from post-change emission determinations, and the use of the Plantwide Applicability Limit (PAL). The Court remanded to EPA for reconsideration and revision elements of recordkeeping for post-change (projected) emissions. The Court vacated the reform rules’ exclusions from NSR review for Clean Units and Pollution Control Projects. These provisions will be stricken from the rule and not be available for State NSR rules. Clean Air Act legislation is thought to be required before these provisions could be brought back into the NSR program.
In a related development, EPA concluded in a June 6, 2005 Federal Register notice that no substantive changes were needed to its Routine Maintenance, Repair and Replacement (RMRR) rule. The D.C. Circuit Court currently stays this provision of the NSR reform package. EPA’s final RMRR rule reconsideration now allows the Court to begin its review and consideration of the suits brought over this rule.
For more information regarding these rulings, contact Jeff Slayback at (800) 229-7495, or refer to U.S. EPA’s NSR website www.epa.gov/nsr/.
In 1996, the Chemical Manufacturer’s Association (CMA) petitioned U.S. EPA to remove MEK from the list of chemicals reportable under Emergency Planning and Community Right-to-Know Act (EPCRA) Section 313. EPA issued a denial of this request on March 30, 1998 based on the fact that MEK contributes to the formation of ground-level ozone, and therefore meets the criteria for consideration as toxic. The American Chemical Council (ACC, formerly CMA) filed suit, but the lower court upheld the ruling. The ACC appealed. The Appeals court agreed with ACC’s argument that the intention of the TRI rules was to include chemicals which are themselves toxic, rather than those that can form toxic products in the environment. Therefore, effective June 30, 2005, MEK has been removed from the list of chemicals subject to TRI reporting. This ruling has substantial impact on the pending petition to delist MEK as a Hazardous Air Pollutant (HAP). A final ruling on that petition is expected within the next several months. For more information, contact Sheri Bussard at (800) 229-7495 or review the Federal Register Notice.
On July 12, 2005, U.S. EPA published a rule simplifying the TRI reporting requirements of the Emergency Planning and Community Right-to-Know Act (see the Federal Register Notice). This rule removes certain general fields (facility latitude and longitude, and RCRA, NPDES, and UIC Permit Numbers) from both the Form R and the Form A. The 64 codes used in Part II, Section 7A of the Form R to describe waste treatment methods are being reduced to 18 hazardous waste treatment codes, which are a modified version of those currently used in EPA’s Biennial Hazardous Waste Reports, and 7 air emissions treatment codes. This rule modifies Section 7A further by removing the field for the inlet concentration of a reportable chemical in a treated waste stream, and allowing the use of range codes for reporting the treatment control efficiency for the reportable chemical. There were several additional minor changes. Modified forms will be available for reporting year 2005 (report due by July 1, 2006). A second rulemaking, expected to be proposed later in 2005, will investigate the possibility of additional rule changes aimed at reducing the reporting burden. For more information, contact Sheri Bussard at (800) 229-7495.
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