Mack McGuffey

Subscribe to Mack McGuffey's Posts
Contact: Read more about Mack McGuffey

Just before the inauguration of President Biden, the Trump administration surprised many by failing to revise the stringent CO2 standard for new coal-fired power plants. That standard, adopted by the Obama administration, is based on the use of carbon capture and sequestration — a technology only installed once in the U.S. at a facility that has now been mothballed. When the Trump administration proposed to repeal and replace that standard in 2018, the chance of it surviving in its current form seemed slim. However, as the clock ran out, the Trump EPA failed to finalize its 2018 proposal and instead issued a “significant contribution finding” that attempts to limit regulation of greenhouse gases from new sources to electric utilities alone. While likely to be reversed quickly by the Biden EPA, that determination erects one more barrier to broad regulation of greenhouse gas emissions under the Clean Air Act (Act).
…
Continue Reading Trump EPA’s Last-Minute Surprise on Climate Standards for New Coal-Fired Utilities Intended to Block Similar Standards for Other Sectors

The U.S. Environmental Protection Agency (EPA) has announced its decision to retain the current National Ambient Air Quality Standards (NAAQS) for fine particulate matter (PM2.5) and ozone (O3) under the Clean Air Act. However, the new Biden EPA is all but certain to reevaluate the standards and likely to reach different conclusions.

PM2.5 is a mixture of small liquid or solid particles found in the air that are less than 2.5 micrometers (μm) in aerodynamic diameter. O3 is a reactive gas that is formed through chemical reactions of nitrogen oxides and volatile organic compounds in the atmosphere. Under the CAA, EPA must ensure the ambient standards for both pollutants are established at a level “requisite to protect the public health” with “an adequate margin of safety,” and EPA must review the NAAQS every five years to determine whether the standards should be retained or revised.
…
Continue Reading EPA Declines to Revise Air Quality Standards for Particulate Matter and Ozone

The U.S. Environmental Protection Agency (EPA or Agency) issued final regulations governing cost-benefit analyses for Clean Air Act (CAA) rulemakings on December 23, 2020. The rule, titled “Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process,” imposes certain requirements on the Benefit-Cost Analysis (BCA) that EPA must conduct for “significant” CAA regulations and requires EPA to consider that analysis when promulgating the regulations, unless otherwise prohibited by law. The rule seeks to force EPA to focus more on the direct benefits of a rule rather than justifying a rule based on the indirect benefits, as EPA has done with certain controversial rules in the past. However, the rule is unlikely to survive long or have much effect under the Biden administration.
…
Continue Reading EPA Promulgates Final Cost-Benefit Analysis Rule for Clean Air Act Regulations

On December 23, the U.S. Environmental Protection Agency (EPA) published its annual civil monetary penalty adjustments in the Federal Register. The Federal Civil Penalties Inflation Adjustment Act of 2015 requires federal agencies to make annual inflation adjustments to federal statutory civil penalty amounts. The annual inflation adjustments are based on a cost-of-living multiplier determined by changes to the Consumer Price Index. This year’s inflation multiplier is 1.01182.
…
Continue Reading EPA Publishes Annual Inflation Adjustments to Civil Penalty Amounts

On October 29, EPA published a proposed revision to its Cross State Air Pollution Rule (CSAPR) Update in response to the remand of the rule by the D.C. Circuit. The CSAPR Update was promulgated under the Clean Air Act’s “Good Neighbor” provision, which requires states to ensure that pollution from sources within their borders does not significantly contribute to the ability of downwind states to attain or maintain the National Ambient Air Quality Standards (NAAQS). Under the Good Neighbor provision, if a State Implementation Plan (SIP) does not adequately address the interstate transport of pollutants, EPA must step in and issue its own rules through a Federal Implementation Plan (FIP). EPA issued the CSAPR Update in 2016, imposing FIPs on 22 states requiring ozone season NOx reductions from electric generating units (EGUs) to address the 2008 ozone NAAQS. In the 2018 CSAPR Closeout, EPA determined that no further emission reductions were required for all but two of the states covered by the CSAPR Update.
…
Continue Reading EPA Proposes Revised Cross-State Air Pollution Rule for the 2008 Ozone NAAQS

On October 1, 2020, the Environmental Protection Agency (“EPA”) issued its final rule allowing for a source classified as a “major source” of hazardous air pollutants (“HAP”) under section 112(a) of the Clean Air Act to reclassify as an “area source.”  A “major source” emits or has the “potential to emit” 10 tons per year or more of a single HAP or 25 tons per year or more of a combination of HAP.  The EPA had long-followed the “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 Maximum Achievable Control Technology (“MACT”) standard was permanently subject to that standard, even if the source was later able to reduce its emissions below major source applicability thresholds.  With the final rule, branded as the “Major MACT to Area” (“MM2A”), EPA codified the withdrawal of the “once-in-always” policy and provided the requirements that apply to major sources choosing to reclassify, including reclassification that occurs after the first substantive compliance date of an applicable MACT standard.
…
Continue Reading EPA Finalizes Clean Air Act Rule Allowing Some Major Sources to Re-Classify as Area Sources

State strategies for regulating air emissions during periods of startup, shutdown, and malfunction (SSM) have been a controversial topic in recent years. Air emissions can be higher during periods of SSM because emitting units are not in steady-state operation and some pollution control devices cannot be operated effectively or safely during such events. Since most air emission limitations are not crafted to cover periods when emission units are not operating normally, many states have adopted regulations in their Clean Air Act-required State Implementation Plans (SIPs) to provide compliance flexibility for sources during periods of SSM. These regulations typically take the form of either automatic or discretionary exemptions for emissions that exceed otherwise applicable limitations, or affirmative defenses to liability or penalties for violations asserted by enforcement authorities or private citizens.
…
Continue Reading EPA Releases New Guidance on Startup, Shutdown, and Malfunction Provisions in State Regulations

On July 8, 2020, EPA pre-published a proposed rule to amend the NESHAP for Industrial, Commercial, and Institutional Boilers and Process Heaters (Boiler MACT) in response to three remands issued by the D.C. Circuit—two in 2016 in U.S. Sugar Corp. v. EPA, 830 F.3d 579 (D.C. Cir. 2016) and one in 2018 in Sierra Club, et al. v. EPA, 884 F.3d 1185 (D.C. Cir. 2018). Based on the proposal, EPA’s effort to comply with those decisions will make 28 emission limits more stringent than they were before, many only marginally so, but some by more than an order of magnitude.
Continue Reading EPA Proposes to Amend the Boiler MACT Standards

On April 22, 2020, EPA published an interim final rule providing relief to sources that are subject to the quality assurance testing and reporting under 40 CFR Part 75. The initial summary of the rule indicates the policy applies to sources that monitor and report emissions under the Acid Rain Program, the Cross-State Air Pollution Rule (CSAPR), and/or the NOX SIP Call. However, the rule itself indicates that relief is available to any source that reports emissions to EPA under 40 CFR part 75. EPA expects the rule will provide relief for hundreds of facilities that would otherwise be required to conduct over a thousand quality assurance tests combined during the next three months in the midst of the ongoing pandemic.
Continue Reading EPA Provides Relief for Sources Subject to Part 75 Quality Assurance Testing in Response to COVID-19

Under the Clean Air Act, a facility that emits air pollutants may not be constructed unless an air permit has been issued to the facility.  For decades, EPA has interpreted the statute to prohibit almost any construction or modification activities until a permitting authority issues a final permit.  But on March 25, 2020, EPA proposed new guidance to clarify that, according regulations adopted 40 years ago, the only construction prohibited prior to issuance of an air permit is construction on the emitting unit itself.
…
Continue Reading EPA Shifts Policy on Construction Prior to an Air Permit