H.R. 161 — New Source Review Permitting Improvement Act

This section revises the definition of "modification" in Clean Air Act section 111(a)(4), which determines when changes to existing stationary sources trigger new source performance standards (NSPS) (i.e., technology-based emission limits reflecting the best adequately demonstrated system of emission reduction). Specifically, it (1) specifies that a physical or operational change increases emissions only if the maximum hourly emission rate achievable afterward exceeds the maximum hourly rate achievable during any hour in the prior 10-year period; and (2) excludes from the definition of modification any change designed to reduce emissions per unit of production or to restore, maintain, or improve operational reliability or safety, unless the change meets the emission rate test in (1) and the EPA determines that the resulting increase adversely affects human health or the environment. (Thus, pollution control, efficiency, reliability, and safety projects at existing sources are generally exempt from NSPS requirements.)

This section adds a new subsection (f) to Section 165 of the Clean Air Act (42 U.S.C. 7475) limiting the applicability of prevention of significant deterioration (PSD) preconstruction requirements—which generally require permits, best available control technology, air quality analysis, and public review for major emitting facilities in areas attaining national ambient air quality standards—to physical construction of discrete parts of an emissions unit, regardless of other physical on-site activities (e.g., costly, site-altering, permanent, or installation-accommodating work). It defines an emissions unit as any part of a stationary source that emits or has the potential to emit regulated air pollutants. (Thus, PSD review is not triggered by preparatory or ancillary site work.) The section further revises the definition of "construction" for major emitting facilities in Section 169(2)(C) of the Clean Air Act (42 U.S.C. 7479(2)(C)) to include modifications (as defined in Section 111(a)) except for changes that do not result in a significant emissions increase or significant net emissions increase in annual actual emissions.

This section revises the Clean Air Act definition of "modifications" and "modified" in nonattainment areas (42 U.S.C. 7501(4)) to mean a modification as defined in CAA section 111(a)(4), excluding a change at a major emitting facility that does not result in a significant emissions increase or significant net emissions increase in annual actual emissions. It further amends section 172(c)(5) (42 U.S.C. 7502(c)(5)) to specify that construction requiring a permit at a major stationary source in a nonattainment area means physical construction of discrete parts of an emissions unit, regardless of other physical on-site activities (e.g., those that are costly, significantly alter the site, permanent in nature, or to accommodate an emissions unit).

This section establishes a rule of construction clarifying that no change made by this Act or its amendments constitutes a modification under the Clean Air Act unless such change would have been treated as a modification prior to the Act's enactment. (Thus, the changes do not trigger additional Clean Air Act permitting or other requirements applicable to facility modifications.)