On December 7, 2017, the U.S. Environmental Protection Agency ("EPA") released a policy memorandum entitled New Source Review Preconstruction Permitting Requirements: Use of the Actual-to-Projected-Actual Applicability Test in Determining Major Modification Applicability ("NSR Memo"). The stated purpose of the NSR Memo is to clarify how EPA intends to apply and enforce certain aspects of the NSR regulations in light of two recent opinions of the U.S. Court of Appeals for the Sixth Circuit—U.S. v. DTE Energy Co., 711 F.3d 643 (6th Cir. 2013) and U.S. v. DTE Energy Co., 845 F.3d 735 (6th Cir. 2017).
The policies announced in the NSR Memo offer existing major stationary sources a significant opportunity to increase efficiency or improve operations without triggering the lengthy process for obtaining major air permits and installing additional pollution control technology. To take advantage of this opportunity, sources must develop records showing the projected increase in actual emissions resulting from the efficiency or improvement project, file any applicable notices of those projections before construction begins, and be prepared to operate the modified facility consistent with the projections. In many cases, emissions increases that the source was already capable of achieving before the project will be excluded in determining the emissions increase caused by the project.
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