RSD regulations: the final round?
Sanford E. Gaines E R T, Concord,M A
ict of Columbia t invalidates or
erit mention. Only
will substantially reduce the number of smaller sources needing permits. In the case of a modification to an existing facility, the court adopted a strict reading that a modification causing any net increase in emissions must be reviewed. The rigor of this requirement is softened by another part of the opinion stating that any reductions in emissions at other points in the source may be offset against the emissions from the modification in determining the nef increase in emissions. If there is no ner increase, no PSD review is needed. Although the court's decision reduces the number of sources subject to PSD review, it significantly broadens the scope of that review. In repeated statements, the court declared that the PSD review should embrace the emissions of any amount of any pollutant regulated by the Clean Air Act. This includes hazardous air pollutants ( e g , benzene) and pollutants that may be regulated in one or another new source performance standard (e.g., total reduced sulfur), as wet1 as the criteria pollutants. Two corollaries follow: Pre-application ambient air quality monitoring should be performed for all pollutants. The applicant must define best available technology (BACT) for all pollutants. On other issues of general significance, the court approved EPA's modeling guidelines, its rules on adjustments for tall stacks, and its interpretation of PSD increments as absolute ceilings. The court remanded EPA's definition of "source" but advised EPA that the new definition could legitimately include "common sense industrial groupings." The court also remanded the rules for applying the PSD program to surface mines and other sources of fugitive dust. but supported EPA's fundamental authority to regulate such sources.
EPA has the next move The constitutional limits on the authority of the judiciary compelled the court to remand the invalidated portions of the regulations to EPA to re0013-936X/79/091:3-1049$01.00/0 @ 1979 American Chemical Society
consider in the light of the court's opinion. Where the court's opinion is specific EPA has little choice, but many of the holdings will require new exercises of agency discretion. P r e - a p p I i ca t io n m on it o r i ng requirements are one example. The court says the Act requires monitoring of all pollutants. but EPA may find that there is no method for monitoring some pollutants, or that the amount of cmissions from some plants is so small that niofiitoring is meaningless. To sort out all these issues will take time. Some of them, like monitoring, present new policy choices calling for complex technical and policy judgments. Once EPA has formulated policy proposals internally. the important but time-consuming procedure of published proposal, hearings, comments, and final rule making ensues. It w ~ i l lbe late this year or early I980 at least before EPA will adopt final regulations in response to the court's decision.
Problems of transition At EPA's request, the court stayed the effect of its preliminary decision, leaving EPA's existing regulations in force. Until further notice, EPA will continue to process PSD applications under the existing regulations. However. because the court may decide to make some parts of its decision retroactively effective the PSD permits now contain a warning that they are subject to modification. A major area of uncertainty is how the court's decision will affect state PSD programs. ;Most states have already devised PSD review programs in keeping w i t h the existing regulations, and EPA uas prepared to turn over the PSD program to the states. Must the states now rewrite their rules, too'? May EPA approve state PSD programs that satisfy the existing regulations? No answers to these questions have yet emerged. To compound the confusion. most of these state programs are already in full force and effect as a matter of state law. Sources may thus be subject to both state and federal PSD reviews, which may inipose inconsistent requirements. Volume 13, Number 9, September 1979
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