US EPA plans to regulate factories’ emissions

30 September 2009 22:52  [Source: ICIS news]

WASHINGTON (ICIS news)--The US Environmental Protection Agency (EPA) said on Wednesday it will seek to regulate greenhouse gas (GHG) emissions by power plants and manufacturing facilities, but industry officials immediately challenged the agency action.

The agency said that under authority of the Clean Air Act (CAA) it soon will propose rules requiring large industrial facilities that emit 25,000 tonnes or more of GHG annually to obtain construction and operating permits from EPA.

In order to obtain those permits to proceed with new construction or major improvements, facilities such as electric power stations, factories and refineries would have to demonstrate to EPA that they were installing the best available emissions control and energy efficiency technologies.

Presumably, if the agency did not approve a permit application, new facility construction or improvements would not be allowed to proceed.

The EPA said it estimates that its anticipated rulemaking on GHG emissions by stationary objects that generate 25,000 tonnes or more of pollutants annually would cover approximately 14,000 US power stations, refineries and factories.

The agency said it would set the emissions threshold at 25,000 tonnes annually in order to exempt from regulation farms, restaurants, other small businesses and facilities such as hospitals and schools from the planned regulation.

However, the National Petrochemical & Refiners Association (NPRA) was quick to challenge the agency on Wednesday, saying that EPA lacked the legal authority to decide which facilities should be regulated and which should be exempted.

“The Clean Air Act stipulates unequivocally that the threshold to permit major sources is 250 tonnes for criteria pollutants,” said NPRA President Charlie Drevna.

“EPA lacks the legal authority to categorically exempt sources that exceed the Clean Air Act’s major source threshold from permitting requirements,” Drevna added.

Jeff Holmstead, an air quality attorney with the Washington, DC, law firm of Bracewell & Giuliani and a former top official at EPA, said the agency’s plans to regulate GHG emissions at fixed facilities are an effort to “fit a square peg into a round hole”.

Holmstead suggested that the Obama administration was using proposed EPA regulation of facility emissions to pressure Congress into passing comprehensive climate change and emissions legislation before the end of this year.

“The Clean Air Act was not designed or intended to regulate CO2, but the Obama administration has already announced that it plans to start using the Act to regulate CO2 early next year unless Congress passes climate change legislation before then,” he said.

Holmstead noted that the Clean Air Act specifically states that any facility emitting more than 250 tonnes annually of a regulated pollutant is a “major source” subject to EPA action.

If EPA is to regulate GHG emissions of fixed facilities, Holmstead said, the 250-tonne threshold should apply, meaning that “more than a million buildings, including schools, churches and hospitals” would have to be regulated.

“EPA is trying to fix this problem simply by changing the 250 tonnes number to 25,000 tonnes,” he said, adding: “Normally, it takes an act of Congress to change the words of a statute enacted by Congress”.

The agency said it expects to put the stationary facility emissions rule in place by the second quarter of 2010.

Some business groups, notably the US Chamber of Commerce, have said they will file suit in federal court to block the EPA’s plans to regulate greenhouse gas emissions by fixed facilities.

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By: Joe Kamalick
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