For years, EPA embraced its obligation to ensure that polluters estimated potential future emissions increases accurately, since those estimates are the cornerstone of a Clean Air Act program aimed at limiting local air pollution increases. Now, the agency has stepped away from that obligation.
The New Source Review (NSR) program is a long-established set of Clean Air Act rules that safeguard local airsheds against additional pollution when a facility makes changes that might cause pollution increases. The rules are first applied to determine whether a facility needs a Clean Air Act permit and then to determine which pollution control measures that permit requires.
In the first step to determine if a permit is needed, a facility estimates what its air pollution emissions levels will be after the modification, and EPA reviews those estimates to ensure they are accurate. EPA’s review task is essential to ensuring that the air quality objectives of the NSR program are achieved. The U.S. Court of Appeals for the Sixth Circuit recently upheld EPA’s process. When EPA brought an enforcement action for non-compliance with the NSR program against a power plant owned by DTE Energy in Michigan, the company defended itself by saying that EPA had no right to review its emissions estimates to determine if they were accurate. The Sixth Circuit rejected that argument. Notably, William Wehrum, who currently runs EPA’s Office of Air and Radiation, represented DTE in the enforcement action.
At the end of last year, EPA issued a memorandum essentially embracing DTE’s unlawful position and stating that the agency would no longer scrutinize a company’s estimates of its own pollution. Going forward, polluters will enjoy the license DTE tried to claim for itself: the ability to avoid both accountability for emissions estimates that prove to be inaccurate and responsibility for controlling pollution increases. This new policy eliminates any assurance that EPA will use the NSR program to deliver the pollution control and cleaner air it is intended to provide.
For more information on other changes to compliance monitoring and enforcement at EPA, please see:
- Centralizing EPA’s Compliance Information Requests
- CleanLaw Podcast discussing Enforcement of Oil & Gas
This post was edited for clarity on Jan. 17, 2020.