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On July 12, 2013, the US Court of Appeals for the District of Columbia (DC Circuit) vacated the 2011 EPA temporary deferral that exempted biogenic CO2 sources from requirements to obtain a permit for those CO2 emissions under the Clean Air Act (CAA).  The DC Circuit ruled that EPA did not have authority under the Act to treat biogenic CO2 emissions differently than other pollutant emissions for Prevention of Significant Deterioration (PSD) and Title V permitting.  The EPA deferral had the two-part effect of a) delaying Title V permitting requirements for biogenic CO2 emissions, and b) exempting sources from PSD permitting requirements for biogenic CO2 emissions, until July 21, 2014. 

This vacatur leaves facilities that had been exempted during the deferral period open to permit requirements, upon a mandate from the court.  Facilities who previously avoided PSD requirements because their CO2 emissions were not included will likely have to obtain retroactive PSD permits.  Similarly, facilities that used the deferral to determine that they were not subject to Title V permitting requirements may need to revisit their emission calculations and determine if a Title V permit is required.

The decision to vacate the deferral does not address whether EPA has CAA authority to permanently exempt biogenic GHG emission sources from permitting at a later date. 

For more details on the recent ruling and other associated requirements, register for
Permitting for Biomass Energy and Combined Heat and Power Projects (Sept. 26, 2013 in New Orleans, LA).  This course focuses on air quality permitting for Biomass Projects. It will also address any aspects of concern in wake of the vacatur; sections of the course will be instructed by an experienced PSD attorney to address legal ramifications.