On November 7, 2016, EPA issued a final rule easing the ability to rescind some air pollution permits that regulators deem no longer necessary. Prior to this final rule, 40 CFR 52.21(w) authorized the owner or operator of a stationary source that held a Prevention of Significant Deterioration (PSD) permit based on rules in effect on or before July 30, 1987 to request a full or partial rescission of their permit. In this final rule, EPA is removing the July 30, 1987 date restriction from 40 CFR 52.21(w).

EPA issued this rule because experience had shown that there were circumstances where a permit based on rules in effect after July 30, 1987 may qualify for rescission under 40 CFR 52.21(w). For example, EPA recently determined a need for rescission authority after the Supreme Court determined that PSD permits were not required for new sources or modifications to existing sources that only emit greenhouse gases. However, because of the July 30, 1987 date restriction, EPA had to revise the regulation in order to enable permits to be rescinded consistent with the Supreme Court’s ruling. EPA expects future similar instances under which PSD permits based on rules issued after July 30, 1987 would be appropriate under 40 CFR 52.21(w). EPA also stated that circumstances not previously considered by EPA could lead a source to qualify for a rescission under this section though EPA did not elaborate on what these circumstances might be.

EPA is not changing the criteria under which an owner or operator may qualify for rescission under 40 CFR 52.21(w). An owner or operator still must make an adequate demonstration that the requirements of 40 CFR 52.21 “would not apply to the source or modification” in order to obtain a rescission. EPA stated that review of a rescission request typically involves an in-depth evaluation of the source, the rules in place at the time, and the court decisions or other events affecting the source. The final rule clarifies that a permit rescission requires an exercise of discretion by the reviewing authority, and the rule does not create a mandatory duty to grant a rescission request.

The scope of the rule only addresses the revision or rescission of permits that are major New Source Review permits. The rule is also only applicable to the EPA Regions and reviewing authorities that are delegated by EPA to issue PSD permits and to reviewing authorities that have their own PSD rules approved by the EPA in a State Implementation Plan that incorporates CFR 52.21(w) by reference.