S. 5363: New Source Review Permitting Improvement Act

This bill would change how the Clean Air Act applies to certain changes at factories, power plants, and other stationary pollution sources. Its main purpose is to narrow when a project at an existing facility is treated as a “modification” or “construction” that triggers New Source Review permitting requirements.

What changes would count as a “modification”

Under current law, some changes at an existing facility can trigger extra air permitting if they are considered a modification that increases pollution. The bill would clarify that a change only counts as increasing emissions if it raises the maximum hourly emission rate of a pollutant above what the source could have achieved in any hour during the prior 10 years.

The bill also says certain projects are not “modifications” if they are designed to:

• reduce pollution per unit of production, or
• restore, maintain, or improve reliability or safety at the source.

Even so, these projects could still be treated as modifications if they meet the bill’s emission-increase test and the EPA Administrator determines the resulting increase in hourly emissions would harm human health or the environment.

What counts as “construction” for major sources

The bill would narrow when preconstruction permitting is required for major emitting facilities. It says the permitting rules would apply only to physical construction of the discrete parts of an emissions unit. Other on-site activities would not by themselves trigger the same permitting requirements, even if they are:

• expensive,
• substantial enough to significantly change the site,
• permanent, or
• done to support installation of equipment.

In other words, the bill draws a distinction between building the actual emissions-producing equipment and other related site work.

Changes in nonattainment areas

For areas that do not meet federal air quality standards, the bill would similarly narrow the meaning of “modification” and “modified” so that routine or small changes that do not cause a significant increase in actual annual emissions would not be treated the same as larger projects.

It also revises the construction rules for major stationary sources in these areas so that only physical construction of the discrete parts of an emissions unit would trigger the relevant permit requirement, again excluding other on-site work that may be costly or substantial.

Overall effect

Overall, the bill would make it easier for existing industrial facilities to carry out certain upgrades, repairs, efficiency improvements, reliability work, and safety projects without triggering new source review permitting, so long as the projects do not cause the kinds of emissions increases defined in the bill. It would also more specifically define when construction activities at major sources require air permits.

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