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Note: EPA no longer updates this information, but it may be useful as a reference or resource.

Please see www.epa.gov/nsr for the latest information on EPA's New Source Review program.

The United States Court of Appeals for the Seventh Circuit in Wisconsin Electric Power Co. v. Reilly, Nos. 88-3264 and 89-1339 4.48

This letter is EPA's revised PSD applicability determination in response to the remand by the US Court of Appeals of one issue advanced by EPA in the NSPS and PSD determinations for WEPCO. Traditionally, EPA has used an "actual-to- potential" method to calculate emissions increased for PSD purposes. The court instructed EPA to consider past operating conditions at a plant when addressing modifications that involve "like-kind replacement". This instruction, in essence, causes EPA to recognize a new subcategory of "like-kind replacements" under the "major modification" definition of EPA's NSR provisions. In these cases, EPA will use an "actual to actual" method, which involves projections based on historical capacity utilization, to calculate emission increases.
Notebook Entries: 2.35

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