Clean Air Act: New Source Review Revisions Could Affect Utility Enforcement Cases and Public Access to Emissions Data

GAO-04-58 Published: Oct 21, 2003. Publicly Released: Oct 21, 2003.
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Highlights

Recent Environmental Protection Agency (EPA) revisions to the New Source Review (NSR) program--a key component of the federal government's plan to limit harmful industrial emissions--have been under scrutiny by the Congress, environmental groups, state and local air quality agencies, the courts, and several industry groups. The revisions more explicitly define when companies can modify their facilities without needing to obtain an NSR permit or install costly pollution controls, as NSR requires. GAO was asked to determine (1) whether EPA and the Department of Justice (DOJ) assessed the potential impact of the revisions on the ongoing enforcement cases against coal-fired utilities and, if so, what the assessments indicated; and (2) what effect, if any, the revisions might have on public access to information about facility changes and their resulting emissions.

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Recommendations

Recommendations for Executive Action

Agency Affected Recommendation Status
Environmental Protection Agency To better ensure the ability of federal, state, local, and public entities to monitor facility emissions and NSR compliance, the EPA Administrator should better define what constitutes a "reasonable possibility" that emissions after a facility change will trigger NSR requirements.
Closed – Not Implemented
EPA has considered GAO's recommendation and solicited public comment on changes to the definition of what constitutes a "reasonable possibility" that emissions after a facility change will trigger NSR requirements. However, the agency has opted not to implement this recommendation.
Environmental Protection Agency To better ensure the ability of federal, state, local, and public entities to monitor facility emissions and NSR compliance, the EPA Administrator shuld require that companies maintain documentation on all "reasonable possibility" determinations.
Closed – Not Implemented
After soliciting and reviewing public comment on issues related to this recommendation, the agency has determined that it will not implement this recommendation.
Environmental Protection Agency To better ensure the ability of federal, state, local, and public entities to monitor facility emissions and NSR compliance, the EPA Administrator should determine, with state and local air quality agencies, how to ensure public access to company's on-site information on facility changes and emissions.
Closed – Implemented
As a result of EPA's December 2002 revisions to the New Source Review Program, GAO found that the public may have less assurance that they can access documentation on company plans to modify facilities in ways that affect emissions. To help address this concern, on December 21, 2007, EPA finalized a rulemaking entitled "Prevention of Significant Deterioration and Nonattainment New Source Review: Reasonable Possibility in Recordkeeping (72 Fed. Reg. 72607 (2007)). EPA received comments from state and local air quality agencies on the proposed version of this rule and altered the rule between proposal and promulgation to address some of these comments. Under the final rule, a facility does not have to keep records for small projects with emissions well below major source/modification size, but for large projects that approach the major source/modification size and those that use the "demand growth exclusion" (exclusion for emissions that could be achieved in the future and also those emissions capable of being achieved during the 24-month period selected to establish a facility's emissions baseline) a facility would be required to keep records and, in some cases, to report this information.

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