On March 20th, the DC Circuit upheld EPA’s June 2012 “CSAPR = BART Rule,” establishing that compliance with EPA’s Cross State Air Pollution Rule (CSAPR) will satisfy the Best Available Retrofit Technology (BART) requirements for SO2 and/or NOx under the Regional Haze Rules for electric generating units (EGUs) subject to CSAPR.   Under the Regional Haze Program, EPA has issued regulations that allow the Agency to approve alternatives to BART if EPA finds that the controls are “better than BART.”

Continue Reading DC Circuit Upholds CSAPR as “Better than BART” under Regional Haze Program

EPA published a proposed rule (83 Fed. Reg. 11654) today that would ease the management standards for aerosol cans.  Stakeholders, particularly the retail sector, has pushed for this addition for some time.  Currently, once a waste, aerosol cans must often be managed as hazardous waste under the Resource Conservation and Recovery Act (RCRA), generally because of their ignitability, and thus often are subject to stringent regulations related to handling, transportation, and disposal.  Today’s proposal would add aerosol cans to the existing federal list of universal wastes.

Continue Reading EPA Proposes to Classify Aerosol Cans as Universal Waste

NSR—the program imposing onerous permitting requirements on the construction of new sources and “major modification” projects at existing sources—requires industrial sources of air emissions to determine whether the projects they propose will increase those emissions.  EPA adopted regulations in 2002 to provide a new structure for those critical emission calculations, which specifies that sources must calculate the “sum of the differences” between a baseline and a future projection for each existing emission unit.  That language is particularly important for individual projects that may cause emissions to go down at one unit but up at another.

Continue Reading EPA Decides Both “Increases” and “Decreases” Count in Determining NSR Applicability

On March 1, 2018, the U.S. Environmental Protection Agency’s (“EPA”) Administrator, E. Scott Pruitt, signed a notice seeking public comment on the proposed withdrawal of the control techniques guidelines (“CTG”) for the oil and natural gas industry.  The oil and natural gas CTGs make recommendations for reducing volatile organic compound emissions from oil and natural gas equipment and processes in ozone nonattainment areas classified as Moderate or higher and states in the Ozone Transport Region by addressing reasonably available control technology review requirements in their state implementation plans.

Continue Reading EPA Seeks Comments on its Proposed Withdrawal of the Oil and Natural Gas Control Technical Guidelines

On March 1, 2018, EPA released a final rule defining nonattainment area classifications under the 2015 ozone standard, along with attainment deadlines for each classification.  The rule finalizes the classifications and deadlines that were originally proposed by the Obama administration in a proposed rule issued on November 17, 2016. (81 Fed. Reg. 81,276).  According to Section 181(a)(1) of the Clean Air Act, nonattainment areas must be classified at the time of designation, so this rulemaking clears the way for EPA to issue final designations for the 2015 standard.  The air quality thresholds for each classification and the associated attainment deadlines are listed in the chart below.  The final rule has not yet been published in the Federal Register.

 Marginal  71 ppb up to 81 ppb  3 years
 Moderate  81 ppb up to 93 ppb  6 years
 Serious  93 ppb up to 105 ppb  9 years
 Severe  105 ppb up to 163 ppb  15 years (or 17 years)
 Extreme  163 ppb  20 years

* from effective date of designation

The Supreme Court has declined to review the U.S. Court of Appeals for the Second Circuit’s January 2017 decision in Catskill Mountains Chapter of Trout Unlimited, Inc. et al. v. U.S. EPA reinstating the U.S. Environmental Protection Agency’s (the “EPA”) Water Transfers Rule, meaning the Second Circuit’s decision reinstating the Rule will stand.  The Water Transfer Rule, issued by EPA in 2008, formalized EPA’s historic practice of excluding water transfers between water basins from the Clean Water Act’s (“CWA”) National Pollutant Discharge Elimination System (“NPDES”) permitting requirements after years of legal battles over EPA’s informal policies regarding interbasin transfers.

Continue Reading Supreme Court Declines Review of Second Circuit Decision Reinstating EPA Water Transfers Rule

Last week, the Center for Biological Diversity, Water Keeper Alliance, and a coalition of other organizations served a Notice of Intent to Sue the U.S. EPA and Army Corps of Engineers (the “Agencies”), alleging the Agencies’ delay in implementing the Obama-era Waters of the U.S. (“WOTUS”) Rule violated the Endangered Species Act.

Continue Reading Environmental Groups Set to Challenge WOTUS Rule Delay under Endangered Species Act

On Monday February 12, President Trump unveiled his long-awaited infrastructure plan.  According to President Trump, our country’s infrastructure “is in an unacceptable state of disrepair, which damages our country’s competitiveness and our citizens’ quality of life.”  While some view the plan as a step toward streamlining an environmental review process that could delay a project unnecessarily, others worry the proposal could curtail the authority federal agencies exercise over environmental reviews pursuant to the National Environmental Policy Act (NEPA).

The plan calls for $200 billion to be spent rebuilding roads, bridges, highways, railways, waterways, and other infrastructure over the next ten years.  That money will come from cuts to other programs (particularly within the Department of Transportation) and is not intended—at least as proposed—to come from new revenue streams.  According to President Trump, the proposed changes will generate approximately $1.5 trillion in new infrastructure investment.

Continue Reading Trump Administration Reveals Long-Awaited Infrastructure Plan

On February 14, 2018, the House Committee on Energy and Commerce held a hearing on the Environmental Protection Agency’s (“EPA”) New Source Review (“NSR”) permitting program as an initial step towards NSR reform.  See https://energycommerce.house.gov/hearings/new-source-review-permitting-challenges-manufacturing-infrastructure/.  Six witnesses presented testimony at the hearing, with four in favor of and two against reform.  There is wide anticipation that EPA will move to adopt some sort of reform of the NSR program, although exactly how and when is not known.  The EPA Administrator this past December issued a Memorandum to the EPA regional administrators providing guidance on “Enforceability and Use of the Actual-to-Projected-Actual Applicability Test in Determining Major Modification Applicability,” and it is expected that further guidance or rulemakings may be forthcoming.  In addition, it is expected that a new effort will be made to reform the program through legislation, with Rep. Morgan Griffith (R-Va.) having introduced two bills last June on that subject.

On February 1, 2018, the Ninth Circuit published Hawai’i Wildlife Fund v. County of Maui, which applied Clean Water Act (CWA) permitting requirements to well wastewater injections that migrate to the Pacific Ocean through groundwater.

Continue Reading Ninth Circuit Broadly Interprets Clean Water Act Jurisdiction