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.”
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.
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.
|CLASSIFICATION||THRESHOLD||MAXIMUM ATTAINMENT DATE|
|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
On January 25, 2018, EPA’s Assistant Administrator, William Wehrum, issued a memorandum addressing when a “major source” subject to a section 112 maximum achievable control technology (“MACT”) standard of the Clean Air Act (“CAA”) can be reclassified as an “area source,” and thus avoid any more stringent requirements that only apply to “major sources.” The memorandum departs from and supersedes EPA’s longstanding “Once in Always in” (“OIAI”) policy articulated in the May 1995 Seitz Memorandum. Under the OIAI policy, a major source of hazardous air pollutants (“HAPs”) was permanently subject to the MACT standard at the “first compliance date” of the standard even if the source was able to later limit its potential to emit (“PTE”) HAPs below the major source thresholds. EPA’s new policy explains that a major source will become an area source once it takes enforceable limits on its PTE to ensure emissions cannot exceed the applicable major source thresholds for HAPS.
This afternoon, EPA announced the details on the three anticipated “listening sessions” in connection with the Agency’s proposed repeal of the Clean Power Plan (CPP). At the same time, EPA noted that it would reopen the comment period on the proposal until April 26th. The comments are currently due to EPA by next Tuesday, January 16th. EPA’s Clean Power Plan webpage has been updated to reflect the effective extension of the comment period until late April. The listening sessions will be held in Kansas City, MO, San Francisco, CA and Gillette WY as follows:
Kansas City Listening Session
Date: Wednesday, February 21, 2018
Time: 10 a.m. until 8 p.m., Central Standard Time (CST)
Location: U.S. Department of Agriculture Beacon Complex, 6501 Beacon Drive, Kansas City, Missouri 64133
San Francisco Listening Session
Date: Wednesday, February 28, 2018
Time: 8:30 a.m. until 7:30 p.m., Pacific Standard Time (PST)
Location: San Francisco Main Library, Koret Auditorium, 30 Grove Street entrance, San Francisco, California 94102
Gillette Listening Session
Date: Tuesday, March 27, 2018
Time: 9 a.m. until 8 p.m., Mountain Daylight Time (MDT)
Location: Gillette College Technical Education Center, 3251 South 4-J Road, Gillette, Wyoming 82718
On January 9, 2018, the EPA published the third round of final area designations under the 2010 SO2 NAAQS. In this round, the EPA identified six (6) nonattainment areas located in Florida, Indiana, Louisiana, Puerto Rico and Guam. EPA designated 23 areas as unclassifiable and all other areas as attainment/unclassifiable. The primary focus in this round was on those areas electing to rely on ambient air quality modeling to assess attainment with the standard.
On January 8, the Supreme Court denied Murray Energy’s petition for appeal of a Fourth Circuit decision that had rejected its efforts to obtain judicial enforcement of Section 321 of the Clean Air Act (“CAA”). Section 321(a) requires EPA to evaluate the potential for plant closures and job losses resulting from regulation and/or enforcement under the Act. The decision marks the end of a legal challenge brought by Murray Energy and 15 states in October 2016, in which the Northern District of West Virginia strongly rebuked EPA’s failure to comply with the statute (as previously reported here). In a 27-page opinion, the district court took EPA to task, finding that the Agency’s longstanding failure to comply with § 321 evidenced a “continued hostility” to the provision. The district court required the Agency to establish a system by the end of 2017 for conducting the evaluations.
On January 9, 2018, EPA released the pre-publication copy of its annual civil monetary penalty adjustment. The final rule is scheduled to be published in the Federal Register on January 10, 2018. The adjustments are mandated by 2015 revisions to the Federal Civil Penalties Inflation Adjustment Act, which requires federal agencies to make annual inflation adjustments to federal statutory civil penalty amounts. In the past, EPA only adjusted penalty levels for inflation once every several years. Beginning in 2017, however, EPA and other federal agencies must adjust their penalty amounts every year. Continue Reading EPA Publishes Updated Civil Penalty Amounts
On December 20, 2017, EPA took the next step in completing the area designation process under the 2015 ozone standard. Specifically, the Agency issued “120-day letters” to the states proposing designations for all areas of the U.S. that were not designated as part of the Agency’s November 6, 2017 rulemaking designating 2,646 areas as either attainment or unclassifiable under the 2015 ozone standard. Under the Clean Air Act, states recommend area designations and if EPA intends to modify a state’s recommended designation, it must notify the state no later than 120 days prior to making the final designation and give the state an opportunity to respond.
The D.C. Circuit Court of Appeals has ordered EPA, in the context of ongoing litigation regarding the issuance of designations under the 2015 ozone standard, to present a timetable for designating the remaining areas of the country that were not addressed in the Agency’s November 16, 2017 final rule. In an order issued December 19, 2017, the court directed EPA to file a status report by January 12, 2018, “identifying with precision and specificity” when it plans to issue a final rule completing the designation process. Bill Wehrum, EPA’s Air Administrator, had already stated publicly that EPA expects to conclude the designation process, including issuance of 120-day letters to states in cases where the Agency disagrees with a state’s designation recommendations, by next spring.