On August 19, 2022, the U.S. Environmental Protection Agency (EPA) issued a proposed rule to revise Risk Management Program (RMP) standards for stationary sources using certain regulated substances under the Clean Air Act (CAA). EPA’s proposal marks the latest reconsideration of a rule issued under the prior administration, as directed by Executive Order 13990. The proposed changes include more stringent requirements for accident prevention, emergency preparedness, and public availability of information as well as regulatory clarifications, with climate change and environmental justice featured prominently as a basis for many proposed changes. Interested parties will have 60 days to comment on the proposed rule following publication in the Federal Register.
On April 6, 2022, the U.S. Environmental Protection Agency (EPA) is scheduled to publish its proposed Federal Implementation Plan Addressing Ozone Transport for the 2015 Ozone National Ambient Air Quality Standards (NAAQS), otherwise known as the latest iteration of EPA’s Cross-State Air Pollution Rule or “Good Neighbor” Plan. The proposal would subject 26 upwind states to the “good neighbor” or “interstate transport” provision of the Clean Air Act because EPA is proposing to find that nitrogen oxide (NOx) emissions, which are a precursor to ozone formation, from the upwind states significantly contribute to downwind states’ attaining and maintaining the 2015 ozone NAAQS.
On January 19, 2021, the U.S. Court of Appeals for the District of Columbia Circuit struck down the Affordable Clean Energy Rule (ACE), which the Environmental Protection Agency (EPA) promulgated in 2019 to replace the Obama-era Clean Power Plan (CPP). The CPP had sought to reduce greenhouse gas (GHG) emissions from existing power plants, in part, by authorizing states to increase renewable generation. As explained in a previous post, EPA had reasoned that it had the discretion to define the best system of emission reduction (BSER) at a plant under Section 111 of the Clean Air Act (Act) to include measures employed outside the facility (such as new renewable resources) that were located “beyond the fenceline.” Stayed by the Supreme Court in 2016, the CPP never went into effect. Instead, the Trump administration repealed the CPP and replaced it with ACE. In ACE, EPA reasoned that Section 111 of the Act required EPA to only find BSER to be a technology that could be applied “inside the fenceline” on the facility.
On October 22, 2020, the U.S. Environmental Protection Agency (EPA) published a prepublication version of a final rule clarifying the process for existing air pollution sources to determine whether the New Source Review (NSR) permitting program applies to proposed projects. The new rule clarifies and confirms that project emissions accounting can be considered during Step 1 of the two-step NSR applicability test, meaning that both emissions increases and decreases from the proposed modification will be considered. The two steps of the NSR applicability test consist of a first step to determine whether a proposed project will cause a significant emission increase of a regulated NSR pollutant and, if it would, the second step determines if there will be a significant net emission increase of the same regulated NSR pollutant considering all other contemporaneous emissions increases and decreases.
On October 1, 2020, the U.S. Environmental Protection Agency (EPA) issued a prepublication version of a final rule under the Clean Air Act that will allow major sources of hazardous air pollutants (HAP) to reclassify as area sources if the source reduces its potential to emit HAPs below the major source threshold (10 tons per year of any single HAP or 25 tons per year of any combination of HAPs). EPA had previously applied a “once in, always in” interpretation through a May 1995 policy memorandum issued by John Seitz, then-Director of EPA’s Office of Air Quality Planning and Standards. Under that policy, a facility designated as a major source on the first substantive compliance date of an applicable major source National Emission Standards for Hazardous Air Pollutants rule had to retain its major source status regardless of whether the source subsequently reduced its potential to emit below major source thresholds. But on January 25, 2018, EPA withdrew the May 1995 policy, laying the groundwork for EPA’s action here.
On July 28, Judge John Koeltl of the U.S. District Court for the Southern District of New York ordered the U.S. Environmental Protection Agency (EPA) to issue Federal Implementation Plans for the 2008 ozone National Ambient Air Quality Standards (NAAQS) that fully address the “good neighbor” obligations under the Clean Air Act by March 2021. The plans will force upwind Northeastern states (Illinois, Indiana, Michigan, Ohio, Pennsylvania, Virginia, and West Virginia) to curb air emissions that otherwise impede the ability of neighboring downwind states (New York, Connecticut, New Jersey, and Massachusetts) from meeting the statutory July 20, 2021 attainment deadline set forth in the 2008 ozone NAAQS.