Greenhouse gas final rule leaves open how EPA will deal with ag-based emissions

By Jon H. Harsch

© Copyright Agri-Pulse Communications, Inc.

Washington, May 13 – A three-part Clean Air Act (CAA) final rule issued by the U.S. Environmental Protection Agency (EPA) May 13 makes it clear that farming and livestock operations will not be affected by step one, January 2011 or by step two, July 2011. But the rule leaves open the possibility that step 3, effective April 30, 2016, may impact large biofuels and agricultural operations since it could require CAA permits for any entity which emits 50,000 tons per year (tpy) of greenhouse gases (GHGs).

The 50,000 tpy level would combine emissions of these six GHGs: Carbon dioxide (CO2), Methane (CH4), Nitrous oxide (N2O), Hydrofluorocarbons (HFCs), Perfluorocarbons (PFCs), and Sulfur hexafluoride (SF6), calculated in terms of total carbon dioxide equivalent (CO2e).

The final rule sets high initial thresholds for determining which GHG emitters such as power plants, refineries, and cement production facilities will be required to obtain New Source Review Prevention of Significant Deterioration (PSD) and title V Operating permits. An EPA spokesperson confirmed to Agri-Pulse that the initial levels mean that no agricultural operations will be affected during steps one and two.

EPA notes that its final rule is deliberately “tailored” to avoid an administrative and regulatory nightmare: “The CAA permitting program emissions thresholds for criteria pollutants such as lead, sulfur dioxide and nitrogen dioxide, are 100 and 250 tons per year (tpy). While these thresholds are appropriate for criteria pollutants, they are not feasible for GHGs because GHGs are emitted in much higher volumes. Without this tailoring rule, the lower emissions thresholds would take effect automatically for GHGs on January 2, 2011. PSD and title V requirements at these thresholds would lead to dramatic increases in the number of required permits – tens of thousands of PSD permits and millions of title V permits.”

EPA points out that without the lower thresholds, the result would be “greatly increasing the number of required permits, imposing undue costs on small sources, overwhelming the resources of permitting authorities, and severely impairing the functioning of the programs.”

With tailoring, starting Jan 2, 2011, major industrial facilities already subject to permitting requirements for other pollutants will be required to obtain permits for any GHG emissions of 75,000 tpy or more from any new construction or major modifications. EPA notes that “During this time, no sources would be subject to Clean Air Act permitting requirements due solely to GHG emissions.”

Under step two, starting July 1, 2011, permitting will be required for all major facilities based on GHG emissions, at the 75,000 tpy level for plant modifications and the 100,000 ton level for new construction or existing facilities.

It remains possible that court challenges to EPA’s higher thresholds for GHGs could result in these thresholds being lowered at some point in the future.

There’s also uncertainty about what will happen with step three, set for April 30, 2016. EPA’s only guarantees are:

  • That the May 13 rule “excludes certain smaller sources from PSD and title V permitting for GHG emissions until at least April 30, 2016” and that,
  • “Step three, if established, will not require permitting for sources with greenhouse gas emissions below 50,000 tpy.”

So after considering some 450,000 comments on its proposed rule in drawing up its May 13 rule, EPA will have more comments to review before it decides on step three. To determine what will happen starting in 2016, the May 13 final rule states that:

  • “By the end of April 2015, EPA will complete a study on remaining GHG permitting burdens that would exist if we applied the program to smaller sources. We will consider the results of the study to complete a rule by April 30, 2016 further addressing Clean Air Act permitting for these facilities. In that rule we may decide that successful streamlining will allow us to phase in more sources, but we may also decide that certain smaller sources need to be permanently excluded from permitting.”

EPA notes that its PSD and title V permit programs currently treat GHG emissions from combusting biomass or from biogenic sources the same as other sources of GHG emissions. The May 13 tailoring rule did not change this, as pointed out by Agriculture Sec. Tom Vilsack. Commenting on EPA’s May 13 rule, he said that “As this process moves forward, USDA is committed to working with EPA to ensure that rules designed to reduce the buildup of greenhouse gases in the atmosphere also encourage the development and utilization of biomass energy resources and avoid unnecessary regulatory impediments and permitting requirements.”

Responding to the concerns raised by Vilsack, EPA states that “there is flexibility to apply BACT [Best Available Control Technology] to biomass sources in ways that recognize the beneficial and inherently lower emitting characteristics of biomass. We will take such characteristics into account when we develop guidance on BACT, which we hope to issue later this year. In addition, we plan to continue to explore and seek further comment on how we might address emissions of biogenic carbon dioxide under the PSD and title V programs.”

To read a five-page summary of EPA’s May 13 “Final Rule: Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule,” go to: To read the complete 515-page “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule,” go to:

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