New Source Performance Standards

New Source Performance Standards in the United States

New Source Performance Standards(NSPS) in Environmental Law

Air pollution regulations that apply to new or modified stationary sources in approximately 65 specified categories, such as portland cement plants, fossil fuel steam generators, steelmaking facilities, petroleum refineries, glass manufacturers, incinerators, and many others.

The minimum level of technology to be used by these facilities in controlling their emissions is best demonstrated achievable technology (BDAT). The Environmental Protection Agency (EPA) sets emission limits in the regulations by considering how much control can be accomplished by the best system of demonstrated controls. If the EPA cannot determine emission limits, it is permitted by the Clean Air Act to require specified work practices, equipment, or design instead.

New Source Performance Standards also apply if an existing facility is undergoing significant reconstruction. The EPA generally looks at the amount of capital going into the project to determine whether the work is repair and maintenance or reconstruction. If the cost will equal 50 percent or more of the cost of a new facility, the EPA will require the source to meet the New Source Performance Standards.

In Wisconsin Electric Power v. Reilly (WEPCo), a court reviewed the issue of what types of modifications trigger the New Source Performance Standards and the Prevention of Significant Deterioration regulations. In this case, the company was engaging in a large project to extend the useful life of the equipment. It argued that it was simply repairing existing equipment, not modifying the plant. The court disagreed. The company was committing large amounts of money, totally overhauling the equipment, and extending its useful life. In the end, emissions would increase. The NSPS was, the court held, properly applied to the modified facility

The reason for requiring compliance with the NSPS when a major modification occurs is evident: the time to upgrade technology is when the source is being modified. If the work is truly in the nature of maintenance or repair, it will preserve the status quo.
Based on “Environment and the Law. A Dictionary”.


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