New Source Review

New Source Review in the United States

New Source Review in Environmental Law

A process for determining what type of air pollution control a new major stationary source must have to qualify for an installation and operation permit. New Source Review is also done for major modifications of existing sources.

Whether a source is considered a new source depends on when construction begins. If a regulation is proposed and the source begins construction after the proposal, it is considered new. If construction has already started and a new regulation is proposed, the source is considered an existing source. The consequence of being considered a new source is that the owner must follow the latest proposal, and invariably that requires more control of air emissions.

The New Source Review process begins with the owner or operator submitting information to the appropriate agency concerning the amount and type of emissions anticipated after construction. (Existing sources that are making modifications must go through the same procedure if the increase in emissions is considered significant.) In areas that have not attained the National Ambient Air Quality Standards, new sources must use technology that will result in the lowest achievable emission rate, called LAER, if they will contribute major amounts of a pollutant that the air district is having trouble controlling. For example: A can coating operation will emit 100 tons per year of volatile organic compounds in an area that is nonattainment for ozone [see nonattainment areas]. If the nonattainment is serious enough and the facility will discharge 25 tons per year, it may have to go through a preconstruction review.

Nonattainment areas have emission offset requirements as well. An emission offset is a mechanism to ensure that an air quality control region continues to make progress toward complying with the national standards. It means that the new source will have to obtain greater reductions from other sources than it intends to emit. The amount of the offset necessary will depend on how far the area is from meeting the national standards.

For example, a business wants to locate a new facility in a nonattainment area for carbon monoxide. If it meets the lowest achievable emission rate, it will release 100 tons per year. However, unless it takes certain steps, the business may not be allowed to build the facility because the air control district is already out of compliance. Adding 100 more tons per year of carbon monoxide would increase the problem. So, even if the business owner goes to other facilities in the air control region and gets them to agree to add controls to their operations that will cut the amount of carbon monoxide they emit by 100 tons per year, air quality will not improve. But if the new source owner can get them to agree to reduce the amount they discharge by more than 100 tons per year, the air control district may approve the new source, because overall, the quality of air in the area would improve.

Emission offsets are simpler when the source already exists and it wants to modify. It may go ahead with construction if it can reduce the pollution from its own operation. Suppose a company is located in a nonattainment area for ozone. It is a major facility, putting out 100 tons per year of volatile organic compounds. It wants to change its process so it can improve business. If it simply adds the equipment it wants to use, it will increase emissions by 50 tons per year. The owner decides to cut emissions from all of the company’s other units so the company can get permission from the state to make the changes. To qualify the source will have to meet the offset requirements, so it must cut existing pollution by more than 50 tons per year. Otherwise, it will have to go to other facilities in the area and get them to reduce their emissions.

New major sources and major modifications of existing sources in attainment areas (air quality control regions that meet the National Ambient Air Quality Standards) are also subject to review prior to construction. The program that applies in those areas is called Prevention of Significant Deterioration (PSD).

One of the differences between New Source Review in nonattainment versus attainment areas is the trigger for review. In nonattainment areas, a proposed facility may be considered major (and therefore subject to the permitting process) when it emits much less than the same proposed facility in an attainment area. Attainment areas have already met the requirements of the federal government for the pollutants, so their primary concern is keeping that status. They may allow growth of industry and therefore pollution, but only if they can maintain air quality good enough to meet the standards after the growth. They are not permitted to allow significant reductions in air quality, even if they have better air quality than the standards require. For that reason, in attainment areas, a source must either be capable of emitting 250 tons per year of a regulated pollutant or, if it falls into certain categories, 100 tons per year of a pollutant to be considered a major source.

Another distinction between New Source Review in nonattainment and attainment areas is the type of controls the sources must use. Again, the level of control in nonattainment areas is lowest achievable emission rate. In attainment areas, the source must use best available control technology (BACT). The difference is one of degree, with the lowest achievable emission rate being at least theoretically more desirable from the government’s perspective. Both types of technology are somewhat flexible, since cost, availability, and application in the particular situation are all considered by the state in deciding what measures are sufficient. However, neither best available control technology nor lowest achievable emission rate may require less control than definitive standards set elsewhere by the Environmental Protection Agency (EPA) [see New Source Performance Standards]. The EPA publishes information on available technology.

An evaluation of a new source could be required under the nonattainment review and under the Prevention of Significant Deterioration program. For example, an air quality district may be in compliance with the National Ambient Air Quality Standard for lead and particulate matter but in nonattainment for sulfur dioxide. In that case, a major new source that will discharge lead and sulfur dioxide in significant amounts will have to go through both types of review before construction.
Based on “Environment and the Law. A Dictionary”.

New Source Review: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about New Source Review. This part provides references, in relation to New Source Review, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about New Source Review by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about New Source Review and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about New Source Review or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to New Source Review and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting New Source Review. Finding these decisions can be challenging. In many cases, researchers about New Source Review should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to New Source Review when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

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