Yesterday, Susan Bodine, EPA’s Assistant Administrator for the Office of Enforcement and Compliance Assurance (OECA), issued final guidance for EPA regions regarding interactions between the Agency and the states in civil enforcement and compliance assurance matters.  Under the new guidance, EPA will generally defer to a state as having primary jurisdiction over inspections and enforcement, but it also sets out a number of important exceptions where EPA may take direct action.  The final guidance replaces previous interim guidance issued in January 2018.

The guidance is split into three parts and expands upon the interim guidance by providing additional procedures and outlining various principles and approaches for coordination between EPA regions and states.  The changes are the result of input from EPA regional offices, states, and a workgroup on compliance assurance that EPA and the Environmental Council of States convened in September of 2017. Continue Reading EPA Issues Final Guidance on State Partnerships, Lays Out Deference to State Inspections and Enforcement

On June 25, 2019, EPA released a pre-publication draft of a proposed rule allowing sources subject to Maximum Achievable Control Technology (MACT) standards under Section 112 of the Clean Air Act to voluntarily limit their emissions and avoid MACT.  The proposed rule, which formalizes and expands on a January 2018 guidance document issued by former EPA Assistant Administrator Bill Wehrum, would allow “major sources” of hazardous air pollutants (HAPs) otherwise subject to MACT standards to take an enforceable limit on HAPs and thus reclassify as “area sources.”  The rulemaking, branded by the Agency as “Major MACT to Area” (MM2A), would eliminate the Agency’s longstanding “once-in-always-in” policy, under which a facility that qualified as a major source of HAPs as of the “first substantive compliance date” of the applicable MACT standard was permanently subject to that standard, even if the source was later able to reduce its emissions below major source applicability thresholds.  Continue Reading EPA Proposes Rulemaking Withdrawing “Once-In-Always-In” Policy for MACT

EPA fulfilled one of President Trump’s campaign promises this week with the publication of the final Affordable Clean Energy rule—ACE—to replace the Clean Power Plan.  Like the Clean Power Plan, ACE is an “emission guideline” issued under Section 111(d) of the Clean Air Act to regulate the emission of carbon dioxide (CO2) from the electric utility sector.  However, while the Clean Power Plan could only be achieved by shifting electricity generation away from energy resources that emit CO2, ACE only regulates sources of CO2 emissions directly by requiring efficiency improvements at coal-fired power plants.

The notice published on Monday actually contains three separate actions: (1) the repeal of the Clean Power Plan, (2) the adoption of ACE, and (3) revisions to the general regulations governing all “emission guidelines” adopted under Section 111(d).  EPA asserts that each of these components constitutes a separate rulemaking action, but at least the first two are grounded in the same fundamental idea—that Section 111(d) only authorizes EPA to select as a “best system of emission reduction” something that can be “applied” to an individual regulated “stationary source” of emissions.  Continue Reading Affordable Clean Energy Replaces the Clean Power Plan

In Kisor v. Wilkie, 588 U.S. __ (2019), a five Justice majority substantially narrowed, but did not wholly overturn, the embattled doctrines arising from Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945).  Under the Auer deference doctrine, courts must defer to reasonable agency interpretations of their own regulations.  Several Justices and prominent scholars had criticized Auer deference on statutory, constitutional, and practical grounds.  While Auer deference lives on after Kisor, the continuing practical relevance of the doctrine is doubtful for most cases.  Further, Kisor’s limitations on Auer deference may portend a similar fate for Chevron deference, in future cases. Continue Reading Kisor v. Wilkie: The Future of Auer Deference, With Implications For Chevron

On June 21, 2019, the White House Council on Environmental Quality (CEQ) released a new draft guidance redefining the process federal agencies will use to evaluate greenhouse gas (GHG) emissions under the National Environmental Policy Act (NEPA). In marked contrast to GHG guidance issued by CEQ under the Obama Administration in 2016, the draft guidance encourages federal agencies undertaking NEPA review to follow the “rule of reason” and use their “expertise and experience” to decide whether and to what degree the agency will analyze particular effects of GHG emissions. Therefore, the draft guidance moves to a more deferential approach to agency review under NEPA than the Obama Administration’s prescriptive guidance. The draft guidance will be published in the Federal Register for public review and comment. If finalized, it will replace the Obama Administration’s 2016 guidance, which was withdrawn effective April 5, 2017, after President Trump issued Executive Order (EO) 13783, “Promoting Energy Independence and Economic Growth.”  Continue Reading A Clear Shift in Policy: CEQ Issues Draft Guidance for Consideration of Greenhouse Gas Emissions Under NEPA

On June 28, EPA proposed to partially approve Georgia’s coal combustion residuals (CCR) state permit program.  If finalized, Georgia’s program will become the second to receive EPA’s approval and will operate in place of the federal CCR requirements.

In its proposal, EPA determined that—with the exception of four provisions—Georgia’s program meets the standard for EPA approval.  EPA proposed to partially approve Georgia’s program since it does not incorporate certain endangered species provisions and because it includes now-vacated provisions that exclude inactive surface impoundments at inactive facilities from regulation, allow unlined surface impoundments to continue receiving CCR unless they leak, and classify clay-lined surface impoundments as lined.  Georgia’s CCR rule has not been revised to reflect the vacatur of these provisions because EPA has not yet finalized those changes at the federal level.  EPA plans to issue proposals to address these topics in 2019.  Once finalized, Georgia EPD can amend its regulations to align with EPA’s changes and then apply for approval of those amendments at a later date. Continue Reading EPA Proposes Approval of Georgia’s CCR Permit Program

On June 26, 2019, EPA published a Notice of Proposed Rulemaking requesting comment on a proposed Maximum Contaminant Level (MCL) for perchlorate under the Safe Drinking Water Act (SDWA). Perchlorate is both a man-made and naturally-occurring chemical, most commonly found in industrial operations associated with the use or manufacture of rocket fuel, missiles and fireworks. Perchlorate inhibits the uptake of iodide to the thyroid and has been detected in certain public water supply systems, primarily in the western United States. In its Notice, EPA proposes an MCL of 56 µg/L, but at the same time requests public comment on whether the MCL should be set at a higher or lower standard, or whether the agency should re-evaluate its decision to regulate perchlorate based on updated data. This rule, if finalized, could affect thousands of public water systems that would be required to comply with the new standard, as well as state and tribal agencies responsible for drinking water regulatory development and enforcement. Continue Reading EPA Proposes Perchlorate MCL under the Safe Drinking Water Act

On June 13, 2019, EPA published a final rule that revises its release notification requirements under the Emergency Planning and Community Right-to-Know Act (EPCRA).  Specifically, the revision exempts from EPCRA reporting air emissions from animal waste at farms.  While these air emissions are now exempt from reporting requirements, releases from animal waste to other water and land must still be reported. Continue Reading EPA Excludes Farm Animal Waste from EPCRA Air Emissions Reporting Obligations

The US EPA Office of Enforcement and Compliance Assurance (OECA) has recently published its final National Compliance Initiatives (NCIs) for FY 2020-2023, setting out its new enforcement and compliance areas of focus.  Formerly known as the National Enforcement Initiatives (NEIs), the newly-renamed NCIs reflect OECA’s shift toward compliance assurance.  EPA believes the name change helps better convey the goal of the NCIs, which is to reduce the average time from violation identification to correction. In doing so, the Agency seeks to use a collaborative approach, working with other federal, state, and local actors to help resolve violations and provide compliance resources.  In its notice, EPA endorses the use of a “full range of compliance tools,” including informal actions, state-led guidance, and the use of federal civil or criminal enforcement where necessary. Continue Reading EPA Announces National Compliance Initiatives

On the heels of similar proposal last month by EPA Region 6 for Texas , EPA Region 4 has now proposed to withdraw the startup, shutdown, and malfunction (SSM) “SIP Call” for North Carolina.  Both of these two actions represent EPA’s latest answer to a vexing question:  what should an industrial source of air emissions do when unavoidable and abnormal circumstances cause emissions to exceed a limit designed only for normal operations?  EPA’s SIP Call in 2015 reinforced policies intended to make those circumstances into a violation of the Clean Air Act and force states to adopt rules implementing those policies.  The recently proposed withdrawals of the SIP Call confirm that EPA, at least in Regions 4 and 6, is planning to allow states more latitude in deciding how to handle SSM events.

Continue Reading EPA Region 4 Proposes New Startup, Shutdown, and Malfunction Policy