Mack McGuffey

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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.

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.

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.

On March 31, 2020, the U.S. Environmental Protection Agency (“EPA”) and the National Highway Traffic Safety Administration (“NHTSA” and, collectively, the “Agencies”) released the pre-publication version of the final part to their joint Safer Affordable Fuel-Efficient (“SAFE”) Vehicles Rule. The new rule amends EPA’s greenhouse gas emission standards for passenger vehicles, light-duty trucks, and medium-duty passenger vehicles in model years 2021 and onward, and it simultaneously amends or creates NHTSA’s corporate average fuel economy standards for similar vehicles in model years (MY) 2021-2026. Under these harmonized regulations, each new model year will bring a 1.5% increase in stringency through MY 2026. Though a significant lessening of requirements from joint standards last set in 2012, this “steady ramp rate” is a notable change from the proposed version of the SAFE Vehicles Rule, which sought to maintain requirements as they applied in MY 2020. The new rule will take effect sixty days from its publication in the Federal Register.

On March 9, 2020, EPA published its final “risk and technology review” for the standards it adopted in 2004 to regulate emissions of hazardous air pollutant (HAP) from natural gas-fired combustion turbines. Like most other such reviews, EPA confirmed that the risks presented by HAP emissions from the source category are acceptable with an ample margin of safety. EPA also concluded that there are no new cost-effective controls for reducing those emissions.

Last week, EPA fulfilled a promise to reverse the expansion of its refrigerant management program during the Obama Administration. That expansion, which was finalized in 2016 and became effective in 2019, EPA extended the regulations for ozone depleting substances (ODS) to non-ODS “substitute” refrigerants, with the intent of reducing emissions of substitutes that consist of greenhouse gases (GHGs), including some with very high global warming potentials. Last week’s final rule returns the refrigerant management program to its original focus, at least with respect to appliance leak repair requirements, although some regulatory requirements for non-ODS substitute refrigerants will remain in place.

The Chemical Safety Board (“CSB”) recently issued a final rule that will add additional reporting obligations to certain releases, including those that previously did not require reporting. Last week, the CSB signed the pre-publication version of its final Accidental Release Reporting Rule. The Rule, which will become effective 30 days after its publication in the Federal Register, will require stationary source owners/operators to report to the CSB any “accidental release” resulting in:

On February 5, 2020, EPA issued a final rule revising the petition provisions of the Title V permitting program. Under the CAA Title V program, permitting authorities must submit proposed Title V permits to the EPA administrator for a 45-day review before issuing the final permit. If the administrator has no objections within this period, any person may petition the administrator within 60 days thereafter to ask EPA to object to the permit.

EPA’s New Source Review (NSR) reform efforts have been in full swing over the past month or so as the Agency released two final guidance documents, issued a pre-publication version of a proposed rule, took final action to end a years-old reconsideration of a 2007 rulemaking, and released its Fall Unified Agenda detailing dates for a number of upcoming NSR-related actions. While these actions may not have immediate consequences for many regulated sources, they are evidence that EPA continues to pursue its NSR reform agenda. 

Under the Obama Administration, the Environmental Protection Agency (EPA) issued a rule on January 13, 2017 amending parts of the Clean Air Act’s (CAA) Risk Management Plan (RMP) program, which regulates facilities that use hazardous substances.  Among other things, the Obama Administration’s 2017 RMP Rule implemented new requirements related to technology and alternatives analyses, third-party audits, disclosure requirements, and incident investigations.  Similarly to other areas of environmental law, the Trump Administration expressed its intention to repeal these requirements shortly after entering office.  After issuing a May 30, 2018 proposed rule and considering nearly 77,360 submitted comments, the EPA recently made good on its intention by releasing the pre-publication version of final RMP Reconsideration Rule that, among other things, repeals the Obama Administration regulations.

The final rule incorporates most of the substantive provisions in the proposed rule.  In addition to repealing much of the 2017 RMP Rule, the RMP Reconsideration Rule modifies the requirements related to local emergency coordination and compliance dates for some provisions.  The Reconsideration Rule will become immediately effective upon its publication in the Federal Register, which should occur soon.  Parties are also expected to challenge the RMP Reconsideration Rule in court, potentially resulting in the delay of the rule’s effective date or its reversal.  One potential challenger is a contingent of fourteen state attorney generals that submitted negative comments on the proposed rule.  More recently, the states submitted another comment listing chemical incidents that have occurred since the proposed rule, which they argue further evidences the need to keep the 2017 RMP Rule.