Mack McGuffey

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On December 15, 2016, EPA issued a pre-publication version of new regional haze regulations. The Agency’s regional haze program regulates emissions affecting visibility in national parks, or “Class I” areas. EPA promulgated the regulations in 1999 with the goal of achieving natural visibility conditions by 2064. Under the program, states must create plans to control visibility-impairing emissions, and must update these plans every “planning period” of ten years.  The new regulations are intended to apply to the second planning period, but will become effective 30 days after the recently released rule is published in the Federal Register, which is scheduled for January 10th.

On October 3, 2016, EPA published a proposed rule that would establish significant thresholds for greenhouse gases (“GHGs”) under the Prevention of Significant Deterioration (“PSD”) and Title V permit programs.

The proposed revisions respond to recent Supreme Court and D.C. Circuit decisions striking down the portion of EPA’s Tailoring Rule that would have required millions of sources to become subject to EPA’s PSD construction permitting program and Title V operating permit program solely on the basis of their GHG emissions.

The EPA published a final rule on September 14, 2016 to once again revise its maximum achievable control technology (MACT) standard for boilers. In this latest revision, EPA responded to various requests for reconsideration of its “area source” boilers rule, the rule that applies only to boilers located at relatively minor emission sources.  The most significant revision in this latest rulemaking involves changes to the definitions of “startup” and “shutdown” to mirror the similar revisions made in EPA’s other MACT rules.  That is, the area source boiler rule will now define startup in two different ways, one of which allows a 4 hour window during which only work practice standards will apply in lieu of the otherwise applicable numeric emission limits. 

In 2015, Congress amended the Federal Civil Penalties Inflation Adjustment Act of 1990 to require agencies like EPA to change the way that they adjust maximum civil penalty levels to account for inflation. In the past, EPA has only adjusted penalty levels for inflation once every several years, but the new law requires EPA to apply two new adjustments—an initial “catch-up” adjustment, and then annual adjustments beginning January 15, 2017. The Act mandates federal agencies, including EPA, to publish notice of the initial adjustments in the form of “interim final rules” by July 1, 2016.

In its last published opinion of the term, the United States Supreme Court held that EPA should not have ignored costs in deciding whether to regulate mercury and other hazardous air emissions from coal- and oil-fired power plants.  In that regulation, known as EPA’s Mercury and Air Toxics Standards (MATS), EPA had attempted to demonstrate that such regulation was “appropriate and necessary” without considering cost.  Although four justices found EPA’s actions to be reasonable based on the theory that EPA considered costs later in the process of setting specific emission limits, a five-justice majority held that EPA had acted unreasonably in ignoring costs in its threshold “appropriate and necessary” finding.