ARCHIVE SITE - Last updated Jan. 19, 2017. Please visit www.NACWA.org for the latest NACWA information.
Center for Biological Diversity, et al., v. EPA
On July 12, 2013, a federal court ruled in the Center for Biological Diversity, et al. v EPA case that EPA failed to provide legal justification to support deferral of greenhouse gas (GHG) permitting requirements for biogenic emissions. The U.S. Court of Appeals for the District of Columbia (D.C. Circuit) vacated EPA’s three-year Deferral Rule thereby creating uncertainty regarding the permitting requirements for biogenic sources, which include emissions from wastewater treatment processes and the combustion of biogas and biosolids – as well as to combustion of other biomass, such as agricultural and forest products.
However, in a separate consolidated federal lawsuit - Utility Air Regulatory Group (UARG) v. EPA - the U.S. Supreme Court ruled on June 23, 2014 that EPA is prohibited under the Clean Air Act (CAA) from regulating stationary sources via the Title V and Prevention of Significant Deterioration (PSD) programs based solely on GHG pollutants. Publicly owned treatment works (POTWs) will benefit from this decision because the vast majority are considered non-major sources under the CAA and potentially faced future Title V and PSD permitting due to GHG emissions generated onsite by burning of biogas and/or biosolids, process emissions, or other sources of GHG emissions. The Court’s decision will keep many POTWs out of the Title V and PSD programs altogether and allow others to narrow the scope of their Title V obligations.
NACWA has long advocated to exempt POTWs from CAA permitting requirements based solely on GHG emissions, both in separate federal litigation and with EPA. NACWA is a member of the Biogenic CO2 Coalition whose objective is exclusion of short cycle carbon dioxide (CO2) emissions from CAA permitting programs. The Supreme Court ruling is consistent with NACWA’s advocacy to avoid GHG permitting for POTWs, and the Association is pleased with the outcome.
Although the D.C. Circuit struck down EPA’s biogenic exemption in its July 2013 decision in the Center for Biological Diversity decision, the ruling did not take immediate effect. Because a number of separate legal challenges had been filed to EPA’s underlying efforts to regulate GHG emissions from stationary sources – all of which were ultimately consolidated into the UARG case -- the D.C. Circuit stayed its decision on the biogenic exemption pending resolution by the Supreme Court of the UARG case. It is likely that, because of the Supreme Court’s ruling in UARG, the decision in Center for Biological Diversity will now be moot and there will be no further proceedings.
In the UARG decision, the Supreme Court reviewed the Tailoring Rule and how EPA sought to regulate GHG emissions for stationary sources under the CAA. The Court affirmed EPA’s authority to regulate GHGs from stationary sources but rejected the way EPA proposed to implement that authority. The Court held that EPA cannot impose Title V or PSD permitting requirements on stationary sources based only on emissions of GHGs. At the same time, the Court ruled that sources already subject to PSD permitting requirements (so-called “anyway” sources because they are required to undergo PSD permitting “anyway” for conventional, non-GHG emissions) could be required to include greenhouse gas emissions in their best achievable control technology (BACT) analyses.
POTW Title V Permit Determinations
The Court’s decision may also affect the scope of Title V permitting for the POTWs required to obtain a Title V permit due to the Sewage Sludge Incinerator (SSI) rule. POTWs that operate incinerators for biosolids management have been required to apply for a Title V permit as one of their new obligations under the SSI rule. For POTWs that did not previously have a Title V permit, the SSI rule allows the permitting authority to issue a Title V permit that covers only the SSI unit. Prior to the UARG decision, GHG emissions in excess of the major source threshold would have been a justification for issuing a facility-wide Title V permit. After the Court’s decision, these POTWs would be justified in asking the permit authority to limit the scope of the Title V permit to their SSI units as allowed under the SSI rule. Note, however, that some states may choose to proceed with facility-wide Title V permitting on the basis that they have the discretion to be more stringent than what federal rules require.
POTW Prevention of Significant Deterioration (PSD) Permitting
Very few POTWs in the country are major PSD sources based on non-GHG emissions. Fewer still will undergo modifications that trigger PSD based on a significant net emission increase of non-GHG pollutants. However, to the extent a POTW triggers PSD anyway based on its non-GHG emissions, the Court found that EPA could require the source to apply BACT to GHG emissions resulting from the PSD project. But the Court also affirmed EPA’s discretion to set a de minimis level for GHGs below which a project would not be required to apply GHG BACT. More agency rulemaking on this issue is expected in the future to establish this necessary justification. NACWA will work closely with EPA to set a de minimis level that would further exclude POTWs from PSD requirements for GHGs.
State Regulations May Be More Stringent