Last week, EPA issued guidance to its Regional Administrators that addresses some of the questions raised by the decision in Utility Air Regulatory Group  v. United States Environmental Protection Agency, 134 S.Ct. 2427 (U.S. June 23, 2014) (“UARG”) As discussed in our posts of June 23rd and July 14th, that decision raised several issues that must be clarified, including how to treat requirements in states that have adopted the Tailoring Rule approach and how to apply the prevention of significant deterioration (“PSD”) permitting provisions to modifications of major sources of emissions.   For example, several states have adopted EPA’s Tailoring Rule approach into their state implementation plans (“SIPS’) and EPA has approved many of those SIP provisions.  Although EPA notes that it will no longer apply or enforce federal provisions, including EPA approved SIP provisions, that require a source to obtain permits if GHGs are the only pollutant involved.  Many state level requirements, however, remain in effect until further actions are taken and may trigger permitting requirements under state law despite the UARG decision.  In light of this, EPA noted the need for Regional personnel to confer with local, state, and tribal permitting authorities and with applicants to explore plans to respond to the UARG decision.  The document notes that while some state laws might automatically be modified based on the Supreme Court decision, EPA does not read the UARG decision as precluding states that have adopted GHG permit requirements into their SIPs from retaining those requirements. This makes it critical for facilities undergoing any permitting actions now, or in the near future, to coordinate closely with state, local, and tribal agencies and with EPA. In addition, EPA has always recognized the PSD permitting program should not be triggered by de minimis increases in emissions of PSD pollutants, and it developed significance levels for purposes of determining when net emissions increases are more than de minimis. The Court in UARG expressly stated EPA may require “anyway sources” to comply with GHG BACT “only if the source emits more than a de minimis amount” of GHGs. The Court noted the 75,000 tons per year (“TPY”) threshold of the Tailoring Rule might be considered a de minimis threshold if EPA justifies that level.  In the July 24th guidance memorandum, EPA states that it intends to continue applying BACT to GHG at “anyway sources” and, pending further developments, to process PSD permit applications for “anyway sources” using a 75,000 tpy C02e (and greater than zero on a mass basis) threshold to determine whether a permit must include a BACT limitation for greenhouse gases.

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Photo of Michael Cooke Michael Cooke

Board Certified in State & Federal Government and Administrative Practice, Michael G. Cooke concentrates his practice in administrative law, including environmental, utility, and land use law. He represents industrial, agricultural, banking, government, and developer clients on matters involving clean air, climate change, electric…

Board Certified in State & Federal Government and Administrative Practice, Michael G. Cooke concentrates his practice in administrative law, including environmental, utility, and land use law. He represents industrial, agricultural, banking, government, and developer clients on matters involving clean air, climate change, electric generating facilities, renewable energy, telecommunications, utility plant and transmission line siting, water, and wastewater issues and permitting and zoning matters.

From 2003 to 2006, Michael was the Director of the Division of Air Resource Management for the Florida Department of Environmental Protection. In this position, he managed the air quality program for the State of Florida, interacting with federal and local agencies and over-seeing permitting and enforcement matters and the development of state air regulations. Michael also served as General Counsel for the Florida Public Service Commission in Tallahassee from 2006 through 2008. His responsibilities at the Public Service Commission included conduct of rate cases, rulemaking, enforcement proceedings, and decision-making involved with policy issues regarding nuclear facility site cost recovery and renewable energy.

Michael has represented clients in connection with numerous environmental regulatory matters, particularly in air permitting and compliance issues. He has represented electric utilities, manufacturing, and agricultural entities in connection with various Title V and New Source Review matters. He is well versed in CERCLA, RCRA, TSCA, water, and solid waste matters.