2022 was a busy year for air quality and climate change policy, and 2023 promises to be no different. See below for a list of high-profile actions expected from EPA this year, along with a few you might not have on your radar screen.
- High Profile
- New Climate Rules for Electric Utilities: EPA has promised new climate rules for electric utilities in March 2023. Paving the way for that proposal were two actions in 2022: (1) EPA’s request for comment in a nonregulatory docket, and (2) proposed new deadlines for states to adopt standards for existing units that could apply to the next GHG rules for utilities. Key Question: What is the “best system of emission reduction” for GHGs from utilities now that the Supreme Court has confirmed in West Virginia that “generation shifting” is impermissible? Without many other options available, efficiency, co-firing, and carbon capture are likely to be the focus of EPA’s analysis.
- Fine Particulate Matter (PM5) Standards: Perhaps the most across-the-board impactful change EPA will make in 2023 will be to strengthen the PM2.5 National Ambient Air Quality Standards (NAAQS). The moment new standards are adopted, new permitting complications will arise, and the new standards will kick off a years-long effort for states to identify new nonattainment areas and the measures needed to reach attainment in those areas. Key Question: Will EPA lower the standard to 10 ug/m3 or drop it all the way to 8 ug/m3? The difference in impact could be dramatic.
- Regional Haze: The Clean Air Act program for improving visibility in national parks may have a limited focus, but its impacts on regulated industries has often been far-reaching. EPA will soon begin its second round of actions, responding to new plans that states submitted in 2022. EPA will likely disapprove many of them and impose federal plans with more aggressive control requirements for a wide variety of industrial sources. Since EPA must act on each state individually, developments in this program may be difficult to track, but trends are sure to emerge once EPA releases a few proposals in 2023. Key Question: Will EPA approve many state plans that concluded no additional pollution controls are needed because visibility improvements are ahead of schedule and those controls would not provide additional cost-effective visibility improvements?
- Mercury and Air Toxics Standards (MATS) Review: EPA’s mercury rules for utilities have been hotly contested for decades, with EPA going back and forth on whether such standards are even appropriate or necessary in light of other regulations. In March 2023, EPA is expected to release its required eight-year review of those standards to determine whether they need to be strengthened in any way. Key Question: Will EPA tighten the current emission limits and/or propose limits on additional pollutants that could require installation of new pollution controls?
- Easy to Miss
- Minor Source Permitting Rule: In recent years, EPA has faced criticism over its oversight of state minor source air permitting programs. EPA has promised to address that issue with new guidance and perhaps new rules in 2023 that may make the process of getting minor permits more difficult and complicated. Key Question: What will EPA say about whether minor sources must complete dispersion modeling to obtain a permit?
- Startup, Shutdown, and Malfunction (SSM): EPA has long sought to cement its SSM policy by forcing states to eliminate regulations providing exemptions and affirmative defenses to penalties for excess emissions caused by those unavoidable events. EPA recently proposed to disapprove two state plans attempting to implement EPA’s SSM policy (Georgia and West Virginia), and the D.C. Circuit is poised to issue an opinion following March 2022 oral argument in a case challenging the legality of EPA’s interpretation of the Clean Air Act. Key Question: Can EPA lawfully disapprove state rules that substitute work practices for exemptions and defenses for SSM?
- Ethylene Oxide Standard Review: Now behind the schedule it promised, EPA still has not issued new standards for sterilizers of medical equipment that utilize ethylene oxide (EtO), which EPA determined in 2016 to be more carcinogenic than previously thought. Key Question: What new limits and monitoring might EPA propose?
- Clarification of Title V “Applicable Requirements”: EPA’s regulatory agenda also indicates EPA is working on clarifying the scope of its authority under Title V to regulate major sources of emissions. Key Question: How much authority will EPA seek to award itself to override state NSR permitting determinations?