EPA Memo Signals Plant Improvement Opportunities

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