{"id":35456,"date":"2008-03-26T16:35:41","date_gmt":"2008-03-26T21:35:41","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/uncategorized\/new-source-review-s-clean-unit-provision.html"},"modified":"2008-03-26T16:35:41","modified_gmt":"2008-03-26T21:35:41","slug":"new-source-review-s-clean-unit-provision","status":"publish","type":"corporate","link":"https:\/\/corporate.findlaw.com\/law-library\/new-source-review-s-clean-unit-provision.html","title":{"rendered":"New Source Review’s Clean Unit Provision"},"content":{"rendered":"
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In June, Kentucky's Environmental and Public Protection Cabinet (Cabinet) amended its regulations to include the Environmental Protection Agency's (EPA) new Clean Unit provision. Kentucky is one of the first states to adopt EPA's December 31, 2002 New Source Review (NSR) reforms. As part of those reforms, EPA created the Clean Unit provision which will give certain technologically advanced facilities flexibility in the future if they continue to operate within permitted limits. This flexibility is an incentive for plants to voluntarily install the best available pollution controls. While the Clean Unit provision may be adopted and effective as a matter of State law, to take advantage of this unique provision, facilities must wait until EPA incorporates the regulation into their State's Implementation Plan (SIP); unless, of course, the facility is located in a state governed by the federal rules. The period between a state's adoption of the reforms, and that adoption's incorporation into the SIP, could be a long wait for certain facilities wishing to benefit from this cost-saving provision. Fortunately for facilities, states must adopt the reforms by March 3, 2006.<\/p>

The Clean Unit provision has the potential to substantial alter the New Source Review process. NSR is a pre-construction permitting process that generally requires advanced air pollution controls for new major stationary sources or existing major stationary sources that significantly modify their facilities. NSR is required for major sources whether they are located in attainment or nonattainment areas. The review required in attainment areas is referred to as Prevention of Significant Deterioration or PSD; and in nonattainment areas, the review is generally referred to as nonattainment NSR. Companies seeking NSR permits typically spend twelve to eighteen months to obtain a permit. This extended length of time, coupled with the extensive cost of obtaining a permit, led to EPA's adoption of the Clean Unit provision.<\/p>

What is the Clean Unit provision?<\/strong><\/p>

The Clean Unit provision reduces PSD and nonattainment NSR review requirements for changes to units that are currently using the latest technology. In addition, it encourages major stationary sources to implement advanced air pollution control technology when adding or modifying units – either the Best Available Control Technology (BACT) or Lowest Achievable Emissions Rate (LAER) controls – by reducing review requirements for later changes to those units. After installation, the new or refurbished unit may be changed without triggering review for up to ten years (the EPA is going to propose extending this time limit to 15 years).<\/p>

Because facilities will be able to make changes to these technologically advanced units without triggering NSR, facilities will have increased flexibility in maintaining the unit's effective operation. Facilities also can avoid the legal and administrative costs associated with trying to determine whether a modification of a unit is significant enough to trigger PSD or nonattainment NSR review. Furthermore, if a facility adds an emissions unit at its plant that goes through NSR, for ten years after the unit is built, the facility does not have to seek significant revision of its permit, so long as it maintains BACT or LAER controls and meets the limits set during the NSR process. Overall, the Clean Unit provision should add both clarity and flexibility to the NSR process, while simultaneously encouraging plants to install the latest technology.<\/p>

How does an emissions unit qualify?<\/strong><\/p>

Certain emissions units at facilities automatically qualify, while others must first go through a SIP approved permitting process for determining whether they meet the Clean Unit criteria. If an emissions unit has gone through a major NSR permitting review and is complying with BACT or LAER, the unit automatically qualifies. On the other hand, if an emissions unit has not gone through a major NSR permitting review, the unit does not automatically qualify and must meet a two-part test. Using a SIP approved permitting process:<\/p>

(1) The unit must demonstrate that it is using air pollution control technology (including pollution prevention and work practices) comparable to BACT or LAER; and<\/p>

(2) The owner or operator must demonstrate that the allowable emissions will not cause or contribute to certain increment violations or adversely impact visibility in certain protected areas.<\/p><\/blockquote>

This SIP approved permitting process must include a public notice and comment period.<\/p>

What is required to maintain Clean Unit status?<\/strong><\/p>

To maintain its Clean Unit status, the unit must comply with all emissions limitations or work practice requirements in its NSR and Title V permit adopted in conjunction with the BACT or LAER determination, and the owner or operator must not make a physical change or change in the method of operation causing emissions inconsistent with the BACT or LAER determination. Also, the unit must be using the same control technology that was the basis for its Clean Unit designation. If the unit loses its Clean Unit status, it may be forced to begin the qualification process anew and re-qualify in order to regain Clean Unit status.<\/p>

When does the Clean Unit period expire?<\/strong><\/p>

For most units, the Clean Unit period expires ten-years after the date the equipment went into service. However, the Clean Unit period cannot be longer than thirteen-years from the issuance of the NSR determination. This thirteen-year cap will only occur when a unit's control technology does not begin service within three years of the issuance date of the major NSR determination. For those units already using the latest technology, the Clean Unit period will be less than ten years because the period expires from the technology's start-up date.<\/p>

Are there any requirements or filings necessary for automatically qualified units?<\/strong><\/p>

If your unit automatically qualifies, there are a few procedures that must be followed. The facility must report the effective and expiration dates as soon as they are known and must incorporate Clean Unit status and other terms and conditions into its Title V permit at the first opportunity (such as revision, reopening or renewal).<\/p>

The effective date is the date the emission unit's air pollution control technology begins service, or three-years after the issuance date of the major NSR determination – whichever is sooner. However, the effective date can be no sooner than when the EPA approves a state's regulation thereby incorporating the regulation into its SIP. The expiration date is ten-years after the effective date, or the date the equipment went into service – whichever is sooner.<\/p>

Again, once the facility knows the effective and expiration date, it must report these dates to the applicable state permitting agency. For example, most Kentucky facilities that have already been through a major NSR permitting review, must report their effective and expiration dates to Kentucky's Environmental and Public Protection Cabinet soon after Kentucky's regulation is incorporated into its SIP. Once Kentucky's Clean Unit regulation is incorporated into its SIP and the facility has met its reporting requirement, the facility is free to take advantage of this cost-saving provision. Remember, though, when the first opportunity arises, the facility must incorporate its Clean Unit status into its Title V permit.<\/p><\/div>","protected":false},"excerpt":{"rendered":"

In June, Kentucky’s Environmental and Public Protection Cabinet (Cabinet) amended its regulations to include the Environmental Protection Agency’s (EPA) new Clean Unit provision. Kentucky is one of the first states to adopt EPA’s December 31, 2002 …<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_categories":[6506,6497],"class_list":["post-35456","corporate","type-corporate","status-publish","hentry","corporate_categories-law-library__environmental-law","corporate_categories-law-library"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate\/35456","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=35456"}],"wp:term":[{"taxonomy":"corporate_categories","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_categories?post=35456"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}