On December 11, 2018, the Environmental Protection Agency (“EPA”) and the Department of the Army (“DOA”) (“Agencies”) released their much-anticipated Notice of Proposed Rulemaking (“Proposed Rule”), which if adopted would scale back the jurisdictional reach of the Clean Water Act (“CWA”) by narrowing the definition of “Waters of the United States” (“WOTUS”) to include only those waters that are oceans, rivers, streams, lakes, ponds, and wetlands, and their “naturally occurring surface water channels.” The practical implications for project proponents of the Proposed Rule are that ephemeral streams and many ponds and ditches used in agricultural, industrial and construction activities would no longer be within the jurisdictional reach of the CWA, alleviating the requirement for and uncertainty surrounding permitting requirements and related mitigation measures. The next step in the Proposed Rule’s process is publication in the Federal Register, after which the Agencies will accept public comments on the proposal until 60 days after Federal Register publication.
Today U.S. EPA finalized new hazardous waste regulations in its final Management Standards for Hazardous Waste Pharmaceuticals rule. In brief, the rule creates a new Subpart P to 40 Code of Federal Regulations Part 266, which is specific to hazardous waste pharmaceuticals. The rule applies to all “healthcare facilities” (such as hospitals and retail pharmacies) and “reverse distributors.” The rule requires that all healthcare facilities and reverse distributors manage hazardous waste pharmaceuticals in accordance with the new subpart P regulations. We are carefully reviewing the final rule and implications to clients, as well as implications to state hazardous waste requirements.
The Trump administration is expected to announce a new proposed definition of “waters of the United States” (WOTUS) which would reverse the expansions adopted under the Obama administration’s controversial WOTUS rule, significantly narrowing the number of waterways and wetlands that fall within the jurisdictional scope of the Clean Water Act (CWA).
Continue Reading Trump Administration to Propose Narrowing “WOTUS”
This afternoon, EPA announced proposed revisions to performance standards governing CO2 emissions from new, reconstructed and modified coal-fired electric generating units. The proposal would drop carbon capture and storage (CCS) as the best system of emission reduction (BSER) for new units in favor of efficient supercritical steam design for large units and subcritical design for smaller units, both in combination with best operating practices. EPA proposes to increase the corresponding performance standards consistent with the change in the BSER. Given the change in new source standards, EPA is also proposing conforming revisions to the standards for modified and reconstructed units and will add a proposed new standard for new and reconstructed units that burn coal refuse.
Overview of Proposed Changes
|Current Performance Standard||Proposed New Performance Standard|
|New Coal-Fired Units||
1,400 lb CO2/MWh gross
1,900 lb CO2/MWh gross for large units1 2,000 lb CO2/MWh gross for smaller units2
|Reconstructed Coal-Fired Units||
1,800 lb CO2/MWh gross for large units
2,000 lb CO2/MWh gross for smaller units
1,900 lb CO2/MWh gross for large units
No change for smaller units
New & Reconstructed Coal-Refuse-Fired Units
No separate standard
|2,200 lb CO2/MWh-gross, regardless of the size of the unit|
|Modified Coal-Fired Units||
Unit-specific standards based on the unit’s best historical annual CO2 emission rate but no lower than 1,800 lb CO2/MWh gross for large units and 2,000 for smaller units
Same unit-specific approach but conforming the lower limit to the new source standards: 1,900 for large units, 2,000 for smaller units, and 2,200 for coal-refuse-fired units
1 Large units are defined as those having a base load rating of greater than 2000 MMBtu/hour.
2 Smaller units are defined as those having a base load rating of 2000 MMBtu/hour or less.
In addition to these changes, EPA is soliciting comment on the proper interpretation of the regulatory language providing the predicate for the regulations – the cause or contribute determination. Under Section 111 of the Act, before EPA can regulate, it must find that emissions from the source category “cause or contribute significantly to air pollution which may reasonably be anticipated to endanger public health or welfare.” EPA requests input on “the proper interpretation of this phrase, the agency’s historic approach to this requirement, and whether this requirement should apply differently in the context of greenhouse gases than for traditional pollutants.”
While EPA is not proposing revisions to the CO2 performance standards for natural gas fired units (simple cycle combustion turbines and combined cycle units), it does request comments on the current standard for new simple cycle aero-derivative turbines, including those used as back-up generation for wind and solar generation. Based on the feedback, EPA notes it might undertake separate action in the future on those standards.
This proposal responds to the Trump Administration’s Executive Order on Promoting Energy Independence and Economic Growth, which directed EPA and other agencies, to review existing regulations and revise or rescind “those that unduly burden the development of domestic energy resources beyond the degree necessary to protect the public interest or otherwise comply with the law.”
Comments on the proposed revisions will be due 60 days from the date of publication in the Federal Register. EPA’s proposal and supporting documentation are available here on EPA’s website.
When must two different activities be grouped together to determine whether they trigger New Source Review permitting? That is the question EPA answered last month after many years of debate and uncertainty. Although the clarification remains only a policy statement (not a rule) and leaves significant discretions for states to apply in individual cases, the “final action” published on November 15th should finally provide some clarity to existing industrial facilities trying to decide whether to get an NSR permit for multiple activities that may, or may not, count as one “project.”
EPA’s efforts to clarify this issue began in 2006, when the Bush Administration attempted to craft regulatory language to codify what is typically referred to as EPA’s “project aggregation” policy. That proposal was tweaked and then finalized in 2009, just before the Obama Administration took office, albeit without adopting any of the proposed changes to the regulatory text. However, the Obama Administration granted a reconsideration of that action and issued an indefinite “stay”—procedural moves that are similar to those recently taken by the Trump Administration to reconsider a variety of environmental regulations. But whereas environmentalists have challenged the Trump Administration’s stays (often successfully), no one challenged the Obama Administrations stay of the “project aggregation” policy, so the issue has been under a stay for nearly a decade. Continue Reading EPA Re-Finalizes Clarification on When Two Projects Must Become One
EPA posted its final implementation rule for the 2015 ozone standard on its website November 8, 2018, the day after it was signed by Andrew Wheeler. The final rule, like the proposed rule published in November 2016, retains many of the provisions from the implementation rule for the 2008 ozone standard, including provisions related to SIP submittal deadlines, modeling and attainment demonstration requirements, Reasonable Further Progress (RFP), Reasonably Available Control Technology (RACT), and Reasonably Available Control Measure (RACM) requirements, and ambient monitoring requirements.
New provisions from the 2016 proposal that were retained in the final rule include allowing states to use inter-precursor emissions trading and requiring state agencies to consider the impacts of in-state emission sources located outside the nonattainment area and require control measures on those sources if necessary to achieve attainment by the deadline. EPA’s final rule also addresses state concerns about international transport impacts and makes clear that nonattainment areas do not have to adjoin international borders for states to make a claim under Section 179B of the Clean Air Act that international transport affects their ability to attain the 2015 ozone standard.
The final rule specifically sidesteps addressing a February 2018 ruling by the D.C. Circuit in South Coast Air Quality Management District v. EPA which stayed certain anti-backsliding requirements in the 2008 implementation rule that were also contained in the 2016 proposal. EPA has indicated that it will address any revocation of the 2008 ozone standard and related anti-backsliding requirements in a separate future rulemaking. The final implementation rule will become effective 60 days after its eventual publication in the Federal Register.
The U.S. Supreme Court kicked off its new term on Oct. 1 with oral arguments in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service. The case centers around whether and when the U.S. Fish and Wildlife Service (FWS) can designate land unoccupied by a threatened or endangered species as critical habitat for that species under the Endangered Species Act.
The comment period has now begun on EPA’s proposal for replacing the Clean Power Plan, named the “Affordable Clean Energy”—or “ACE”—rule. The rule was published in the Federal Register on August 31. And there is plenty to keep commenters busy over the next 60 days, given that EPA expressly identified 75 distinct requests for comment, not counting potential sub-issues and issues that EPA did not count. Comments are due by October 30th. Here are the top 10 key aspects of the rule that are likely to be the subject of the most fervent comments:
- Section 111(d) Authority. As previously set forth in its proposed repeal of the Clean Power Plan, EPA has decided to return to its historical interpretation of Section 111(d) of the Clean Air Act—that it only authorizes EPA to establish the best system of emission reduction based on measures that can be employed within the fenceline of a source subject to the rule. Conversely, EPA makes clear that its historical reading of Section 111(d) precludes the use of “generation-shifting,” “reduced utilization,” or “redefining the source” as part of a Section 111(d) emission guideline, all of which were relied upon heavily under the Clean Power Plan. In the ACE proposal, EPA also characterizes its authority as merely providing “information” to states, that then have the authority to establish the enforceable, pound per megawatt hour “performance standards” on a unit-by-unit or source-category basis. EPA also leaves to the states to determine the compliance deadlines associated with those performance standards.
- The Best System of Emission Reduction (BSER). EPA has determined that the best system for reducing greenhouse gas emission reductions from existing power plants (consistent with its reading of Section 111(d)) is to improve the efficiency of those power plants. Specifically, EPA listed six equipment upgrades and a seventh catch-all for improved operating practices that could be used to improve the efficiency with which power plants convert fuel into electricity. EPA expressly rejected carbon capture and sequestration as insufficiently demonstrated and co-firing with gas or biomass as insufficiently available and unnecessarily costly.
- Affected Sources Subject to the Rule. ACE, as proposed, would apply only to coal-fired power plants, not gas-fired plants (unlike the Clean Power Plan, which applied to both). EPA’s basis for excluding gas-fired units is that it does not have enough information to establish a similar efficiency-based emission guideline for them. However, ACE is likely to set a precedent that could be important if EPA later decides that a similar program might be appropriate for gas generators after all. Exclusion from ACE might also mean that gas-fired plants will be unable to take advantage of EPA’s New Source Review reforms, summarized below.
- No Presumptive Limits or Cumulative Targets: Unlike the Clean Power Plan, which focused on national and interconnection-level emission reduction targets to establish mandatory emission budgets for each state, ACE is not based on a cumulative emission reduction target, nor does it provide any presumptive limits or a prescriptive methodology for states to follow in setting performance standards. That approach provides states maximum flexibility and authority, but it may also lead to significant variability from state-to-state, as plans are developed and submitted to EPA for approval. EPA did provide a range of expected efficiency improvement levels for each one of the seven measures proposed, which states must consider, but exactly how states are expected to incorporate those ranges into the process of establishing standards of performance remains unclear.
- Some Averaging, But No Trading: In describing the requirements for states, EPA made clear that averaging between affected units within a single facility will be allowed, but averaging or trading of emission reductions between facilities will be out of bounds. This aspect of the rule is likely to be trouble to states that have already sought to reduce greenhouse gas emissions via a trading program, such as the states participating in the Regional Greenhouse Gas Initiative.
- Cost Implications: ACE expressly allows states to decide which measures are cost-effective, and therefore a valid basis for establishing a performance standard, and which measures might be too costly. As noted above, that evaluation can be case-by-case, so states will need to conduct a detailed assessment of each covered facility’s economic characteristics. EPA has also indicated a preference for including in that analysis the costs associated with any additional permitting or control requirements that could be triggered by the measures required—something EPA has not typically considered in the past.
- New Source Review (NSR) Reform: EPA has resurrected a 2007 proposal for NSR reform that would add to the current NSR permitting applicability test a preliminary hourly emissions check. In short, if maximum hourly emissions are not expected to increase, NSR will not apply. The concept could be highly beneficial in simplifying and clarifying the controversial NSR program, and the hourly test squares nicely with the new 1-hour national ambient air quality standards. However, the exact form of EPA’s proposed preliminary hourly test leaves much to be desired, in that it relies on either a single highest hour or a flawed statistical analysis that must be compared to every single hour of emissions in the future. It also fails to implement the statutory requirement for evaluating only those emissions increases caused by a project.
- State Plan Deadlines: EPA has proposed to significantly extend the deadline for state plans and for EPA action to approve those plans or issue federal plans for states that failed to submit an approvable one. This timeline will give states much more time to work with EPA and make sure their plan is approvable, but it also means that the deadline for approving plans will not arrive until the next presidential administration.
- Adopting Standards Less (or More) Stringent than Guidelines: EPA’s ACE proposal confirms that a state’s standards of performance may be less stringent than the “information” comprising EPA’s emission guidelines. However, for a less-stringent state plan to be approvable, states must demonstrate the reasonableness of their decisions. How much or little deference EPA will pay to the state’s demonstrations will be, as noted above, up to the next presidential administration.
- Rule Benefits and Costs: In evaluating the potential impacts of its proposal—its costs and benefits—EPA compared its ACE proposal to two baselines, one with the Clean Power Plan in place, and one without it, which reflects the current state of the law in light of the Supreme Court’s stay of the Clean Power Plan. EPA also relied on the social cost of carbon (but only domestic benefits) and co-benefits of particulate matter reductions (but noting that it has low confidence in the vast majority of the health benefits calculated). All told, the rule predictably provides fewer benefits and imposes lower costs than the Clean Power Plan, but greater benefits and costs than doing nothing.
This morning, the Environmental Protection Agency (EPA) released its proposed replacement for the Clean Power Plan (CPP) titled the “Affordable Clean Energy Rule,” which would regulate greenhouse gas emissions at existing coal-fired power plants. The proposed rule gives discretion to states for determining the greenhouse gas performance standards achievable for existing coal-fired power plants within their state. Specifically, the proposed rule would require states to evaluate a menu of heat rate improvement options and, taking into account the unit’s remaining useful life and other factors, determine the lb/MWh CO2 emission rate achievable at each affected unit. While the rule proposes to allow for emissions averaging among affected units at an individual source, it does not provide for broader averaging or emissions trading. To facilitate the heat rate improvement projects, EPA also has proposed an option for states to adopt a new emissions test under the New Source Review program for EGUs that is based on both hourly and annual emissions.
On July 20, 2018, President Trump signed into law two pieces of legislation alleviating complex federal land use issues for two FERC-licensed hydropower projects in Alaska. Strongly supported by the entire Alaska congressional delegation, Public Law No: 115-200 and Public Law No: 115-201 respectively allow the Swan Lake Hydroelectric Project (“Swan Lake”) and Terror Lake Hydroelectric Project (“Terror Lake”) to pursue needed and scheduled updates to their operations to maintain sufficient electric capacity for their customers in the Last Frontier.