EPA’s update to the Cross State Air Pollution Rule is designed to address interstate transport issues under the 2008 ozone standard. The rule establishes Federal Implementation Plans (FIPs) for 22 states in the eastern half of the U.S. (see map below) and requires ozone season NOx reductions directly from fossil fuel fired Electric Generating Units (EGUs) in those states. The rule is styled as an “update” to the Cross State Air Pollution Rule because it uses the same regulatory frameworks, with some updates, as EPA’s original Cross State Air Pollution Rule, which was finalized in 2011, vacated by the DC Circuit but ultimately upheld by the Supreme Court. Most of the states subject to the CSAPR Update rule were also subject to the original CSAPR rule with the exception of Kansas, which will be new to the ozone season NOx program under the CSAPR Update Rule. The rule establishes new, more stringent ozone season NOx emissions budgets for each state subject to the rule, and those budgets take effect in May 2017. While the rule was signed and posted on EPA’s website on September 7, 2016, the final rule was published in the Federal Register today and a copy of the Federal Register version can be found here. EPA has also separately published the unit-specific allowance allocations for the affected EGUs under the rule. The allowance allocations were issued in final form, without public review and comment, in a NODA published in the Federal Register on September 30, 2016.
On October 19, the Northern District of West Virginia handed a victory to Murray Energy by requiring EPA to conduct continuous economic evaluations of its regulatory implementation of the Clean Air Act.
On Friday, October 7, 2016, several industry trade organizations and associations, as respondents, filed a brief requesting that the U.S. Supreme Court review the fractured decision of the Sixth Circuit to exercise jurisdiction over various challenges to the EPA-Army Corps issued Waters of the United States (”WOTUS”) Rule under the Clean Water Act (“CWA”).
On October 3, 2016, EPA published a proposed rule that would establish significant thresholds for greenhouse gases (“GHGs”) under the Prevention of Significant Deterioration (“PSD”) and Title V permit programs.
The proposed revisions respond to recent Supreme Court and D.C. Circuit decisions striking down the portion of EPA’s Tailoring Rule that would have required millions of sources to become subject to EPA’s PSD construction permitting program and Title V operating permit program solely on the basis of their GHG emissions. Continue Reading EPA’s Proposed PSD Significance Thresholds for Greenhouse Gases
On September 27, 2016, the United States Fish and Wildlife Service and the National Marine Fisheries Service (collectively, “the Services”) published a final rule finalizing changes to the regulations concerning listing and de-listing petitions under the Endangered Species Act (“ESA”). The revisions clarify and enhance the procedures by which the Services evaluate these petitions under section 4(b)(3) of the ESA. The Services initially proposed revisions to the petitions process in May 2015, but narrowed the revisions in a re-proposal issued in April 2016. The rule becomes effective October 27, 2016. Continue Reading Federal Agencies Revise Endangered Species Act Listing Petition Process
On September 27, 2016, the U.S. Court of Appeals for the D.C. Circuit heard oral argument over the Obama Administration’s signature plan for addressing climate change: the Clean Power Plan, which relies on “generation shifting” to reduce power sector emissions 32 percent by 2030. In a highly unusual move, the court held the argument en banc—that is, before all active judges (except recusals). Thus, with the recusal of Supreme Court nominee Judge Garland, the case was heard before a ten judge panel of Judges Henderson, Tatel, Rogers, Griffith, Kavanaugh, Brown, Srinivasan, Pillard, Millett, and Wilkins (4 Republican-appointed and 6 Democrat-appointed, four of whom were appointed by President Obama). Continue Reading D.C. Circuit Hears Arguments on Legality of the Clean Power Plan
On September 22, the United States Fish and Wildlife Service (“FWS”) proposed the rusty patched bumble bee for listing as an endangered species under the Endangered Species Act (“ESA”). This action results from a 2013 petition and subsequent lawsuit filed by The Xerces Society for Invertebrate Conservation to list the rusty patched bumble bee as an endangered species. Continue Reading Fish and Wildlife Proposes to Add Rusty Patched Bumble Bee to Endangered Species List
From recent discussions with the U.S. EPA, all indications are that the Hazardous Waste Generator Improvements Rule will be finalized any day now. Troutman Sanders’ Greg Blount and Karlie Webb will present a webinar update on the final rule shortly after publication. Please stay tuned!
The EPA published a final rule on September 14, 2016 to once again revise its maximum achievable control technology (MACT) standard for boilers. In this latest revision, EPA responded to various requests for reconsideration of its “area source” boilers rule, the rule that applies only to boilers located at relatively minor emission sources. The most significant revision in this latest rulemaking involves changes to the definitions of “startup” and “shutdown” to mirror the similar revisions made in EPA’s other MACT rules. That is, the area source boiler rule will now define startup in two different ways, one of which allows a 4 hour window during which only work practice standards will apply in lieu of the otherwise applicable numeric emission limits. Continue Reading EPA Publishes MACT Revisions for Boilers
On September 19, 2016, EPA extended the Chemical Data Reporting (CDR) rule report deadline from September 30, 2016 until October 31, 2016. As a reminder, the Toxic Substances Control Act (TSCA) requires manufacturers of chemical substances to periodically report their manufacturing, processing, and use of chemicals listed on the TSCA Inventory. EPA granted the extension in response to the regulated community’s concerns about delays in CDR Reporting resulting from issues associated with electronic reporting. This is a one-time extension that does not apply to subsequent submission periods, the next being in 2020. Continue Reading EPA Extends TSCA CDR Reporting Deadline until October 31, 2016