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. 
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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. 
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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.

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EPA Region 6 has proposed to withdraw a 2015 finding that Texas’s State Implementation Plan (SIP) is substantially inadequate to comply with the Clean Air Act (CAA) because of state rules that provide an affirmative defense for excess air emissions that occur during upsets and unplanned maintenance, startup, and shutdown activities. 82 Fed. Reg. 17,986 (Apr. 29. 2019). Region 6 is now proposing to find that Texas’s affirmative defense provisions for so-called “startup, shutdown, and malfunction” or “SSM” events are “narrowly tailored and limited to ensure protection of the National Ambient Air Quality Standards (NAAQS),” as required by EPA guidance. Accordingly, Region 6 is proposing to withdraw EPA’s 2015 “SSM” SIP call issued to Texas based on the finding of substantial inadequacy.
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EPA has reset the public hearing date on its proposed revisions to the New Source Performance Standards governing CO2 emissions from new, modified and reconstructed Electric Generating Units (EGUs).  The hearing, originally scheduled for January 8th and then postponed until January 30th, is now scheduled for February 14th in Washington, D.C.  Under the Clean Air

In the last month of 2018, EPA released two proposals that it claims will have no immediate effect—revised CO2 standards for new coal-fired power plants that EPA does not expect anyone to build, and a determination that it is not “appropriate and necessary” to have a mercury rule that it nevertheless plans to keep on the books.  The question many may be asking is why EPA would issue two highly controversial rules if they won’t have any practical effect?  The answer may lie in the precedent they will set.

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On December 28, 2018, the U.S. Environmental Protection Agency (“EPA”) released a pre-publication version of a proposal revisiting the cost analysis underlying the Mercury and Air Toxics Standards (“MATS Rule”) for coal- and oil-fired electric generating units (EGUs) and conducting the residual risk and technology review required by the Clean Air Act (“Proposal”).  The Proposal would reverse a previous finding, issued by EPA under the Obama Administration, that regulation of hazardous air pollutant (“HAP”) emissions from EGUs under the MATS Rule was “appropriate and necessary” but would nonetheless leave the rule in effect.  The Proposal also concludes that more stringent HAP emission limits are not warranted by the required risk and technology reviews.

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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

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.
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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,