PA Set to Promulgate New Source Review Program Revisions

May 16, 2007
Client Alert Newsletter May 2007

Approximately three years ago, the U.S. Environmental Protection Agency ("EPA") promulgated significant revisions to the federal New Source Review ("NSR") permitting regulations, which have largely withstood judicial scrutiny. EPA required states to implement EPA's revised nonattainment-NSR program, or demonstrate that a state-specific program is "equivalent" to the federal program. In response, the Pennsylvania Department of Environmental Protection ("PADEP") published a final rule significantly revising its non-attainment NSR program in the May 19 Pennsylvania Bulletin.

Under its new non-attainment NSR program, PADEP adopted an actual-to-future-actual emission test to evaluate emission increases from modifications. Previously, PADEP evaluated emission increases from a modified source by comparing the source's potential to emit prior to and after the change. Under the former program, therefore, a modification that did not propose an increase in permitted emissions would not trigger NSR. In the new program, changes that would not increase emissions over current permit limits may trigger NSR. Further, the new regulation will provide less flexibility than the federal rule in determining the baseline actual emission rate used to calculate emission increases from modifications. While the federal NSR rule allows use of any 24-month period during the past 10 years, and selection of different periods for different pollutants, PADEP's new program will limit consideration to the most recent five years and require that the same 24-month period be used for all pollutants.

Also, PADEP will maintain its requirement that fugitive emissions be included for all sources. Further, sources must aggregate all emission increases and decreases during the last 10 years to determine whether the net emission increase exceeds NSR thresholds; the federal program allows such netting, but does not require it. Finally, PADEP's program will maintain and implement a 25 ton-per-year major source threshold for volatile organic compound and nitrogen oxides ("NOx") emissions in the five-county Philadelphia area, although the area has been reclassified to "moderate" non-attainment by EPA.