The past six months have seen significant developments in the regulation of air quality and emissions. What follows is a summary of those developments, as they affect Florida and companies doing business in the state.

Greenhouse gases

In early January, the Florida Department of Environmental Protection adopted U.S. Environmental Protection Agency (EPA) rules limiting greenhouse gases from new or modified sources of greenhouse gases under Prevention of Significant Deterioration (PSD) rules. The EPA approved Florida’s rules in May, and delegated to Florida federal and state permitting of projects requiring PSD review.

The delegation of permitting by the EPA to Florida is significant. An application to the state for a PSD project will now not require preparation of an Environmental Impact Statement or consultation with federal agencies on issues such as endangered species. It also shortens the time required for processing permits.

In early June, the EPA proposed greenhouse gas rules for existing air sources emitting carbon dioxide, a principal greenhouse gas. The rule would apply to coal, oil and gas power plants but does not cover sources other than power plants (stay tuned for more on this). Flexibility is accorded states in implementing the proposed regulation. The public comment period for this rule is open through October 16, 2014.

In late June, the U.S. Supreme Court sustained parts and invalidated other parts of the EPA PSD rule.

The portion of the rule invalidated by the court is known as the “tailoring rule.” The tailoring rule established levels of pollutant impact for greenhouse gases different from those set in the Clean Air Act. Greenhouse gas emitters above those levels would have been required to use advanced technology, known as Best Available Control Technology, to limit greenhouse gas emissions.

The court allowed the EPA to require Best Available Control Technology for greenhouse gases only when PSD review was required for other pollutants, applying to larger emission sources. It may not require PSD review of smaller sources of greenhouse gases not otherwise subject to PSD review.

Although much of the EPA’s greenhouse gas rule was upheld, the court used strong language to express its concern with the EPA’s failure to follow statutory directives in formulating its rule. This may presage closer review of future EPA rules coming before the court, including likely appeals of the rules on greenhouse gases for new and existing sources, once finalized.

The court’s ruling affects PSD permitting in Florida because Florida adopted the EPA rule, as discussed above.

Ozone ambient standard

The EPA is reevaluating the ambient air standard for ozone. It will likely propose lowering the standard from the current 75 parts per million (ppm) to 60-70 ppm. Setting the level at 60 or 65 ppm may lead to several areas in Florida being listed as “non-attainment” areas, including Orlando, Tampa, Pensacola and Panama City. Areas classified as non-attainment face requirements to reduce emissions of ozone and additional difficulty in securing permits for air sources.

Cross-state air pollution rule

The U.S. Supreme Court in April overturned a lower court decision and reinstated the Cross State Air Pollution Rule. This rule regulates interstate pollution from two air pollutants, sulfur dioxide (SO2) and nitrogen oxide, but not greenhouse gases. It will primarily impact coal plants. Because of Florida’s geography and prevailing winds, the reinstated rule is not expected to have a major effect on most Florida facilities.

SO2 ambient air attainment status

Florida has recently had two areas exceed an ambient air standard for sulfur dioxide: one in Nassau County and the other in the Tampa Bay area. Both have been addressed by the state with a plan to reach attainment of the standard.

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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.

Gunster, Florida’s law firm for business, provides full-service legal counsel to leading organizations and individuals from its 11 offices statewide. Established in 1925, the firm has expanded, diversified and evolved, but always with a singular focus: Florida and its clients’ stake in it. A magnet for business-savvy attorneys who embrace collaboration for the greatest advantage of clients, Gunster’s growth has not been at the expense of personalized service but because of it. The firm serves clients from its offices in Fort Lauderdale, Jacksonville, Miami, Orlando, Palm Beach, Stuart, Tallahassee, Tampa, The Florida Keys, Vero Beach and its headquarters in West Palm Beach. With more than 160 attorneys and 200 committed support staff, Gunster is ranked among the National Law Journal’s list of the 350 largest law firms. More information about its practice areas, offices and insider’s view newsletters is available at www.gunster.com.

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