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 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.

Continue Reading EPA Issues Proposed Designations for Remaining Areas under the 2015 Ozone Standard

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.

In an October 16, 2017 order signed by EPA Administrator Scott Pruitt, EPA reversed a position it has held for many years — that the Agency has authority, in the context of Title V permitting, to review previous state-level decisions on the applicability of new source permitting requirements.  The new policy outlined in the October 16 order removes the Title V petition to object as an avenue for citizens to seek EPA review of state preconstruction permitting decisions.

Continue Reading EPA Changes Course on Authority to Revisit NSR Permits in Title V Context

EPA issued what the Agency is calling “Round 1” of final area designations under the 2015 ozone standard on November 6, 2017. The designations, which will be published in the Federal Register tomorrow, November 16, and become effective 60 days later, include only those counties, tribal areas, and territories that EPA has designated “attainment/unclassifiable” — totaling 2,646 counties. EPA also designated 3 counties in the state of Washington as “unclassifiable.” EPA did not designate any nonattainment areas as part of the final rule, but simply noted that it is “not yet prepared to issue designations” for the remaining areas of the U.S.

EPA is currently facing litigation over its June 2017 announcement extending the deadline for designating areas under the 2015 ozone NAAQS by one year, to October 2018, even though the Agency later reversed that decision. On July 12, 2017, a dozen environmental and public health groups sued EPA in the D.C. Circuit Court of Appeals, claiming the Agency did not have authority to extend the deadline for designating areas under the Clean Air Act. Fifteen states followed in their footsteps, filing their own lawsuit challenging the delay on August 1. EPA responded the following day by publicly announcing its intent to withdraw the deadline extension and published official notification of the withdrawal in the Federal Register on August 10. (82 Fed. Reg. 37,218.) Continue Reading EPA Issues Attainment Designations Under the 2015 Ozone Standard But Holds Nonattainment Designations

 

FERC released a policy statement on October 19, 2017, revising its longstanding approach to setting the license terms for hydroelectric projects.  The new policy establishes a default term of 40 years for non-federal projects, which can be shortened or extended in certain identified circumstances.  According to Section 6 of the Federal Power Act, the term of a license may not exceed 50 years — the Act sets no minimum license term.  It has been FERC’s policy to set a 50-year term for licenses issued to federal projects and to base the license term for non-federal projects on the level of redevelopment, new construction, or environmental mitigation and enhancement slated for the project.  For projects involving little to no activity, FERC has set a 30-year term, for a moderate amount of activity, a 40-year term, and for extensive activity, a 50-year term.

Continue Reading FERC Issues Policy Statement Extending License Terms for Hydro Projects

On August 22, 2017, EPA released its proposed area designations in the latest round of designations under the 2010 SO2 National Ambient Air Quality Standard (NAAQS).  The proposed designations largely track the states’ recommendations; however, EPA has identified a number of areas, recommended by states as “attainment,” that EPA believes “may be violating” the standard, including areas in Florida, Guam, Indiana, Louisiana, Minnesota, Ohio, Puerto Rico, and Wisconsin.  In addition, EPA has proposed to designate some areas as unclassifiable as opposed to unclassifiable/attainment.  EPA has published a table that compares its intended designations with the state recommended designations.  https://www.epa.gov/sulfur-dioxide-designations/intended-sulfur-dioxide-area-designations-august-2017

Continue Reading EPA Releases Proposal in the Third Round of Designations for the 2010 SO2 NAAQS

Yesterday, June 6, 2017, EPA Administrator Scott Pruitt announced a one-year delay of EPA’s final designation of areas under the 2015 ozone standard.  The 2015 standard was issued on October 26, 2015 and tightened the existing 2008 standard from 75 ppb to 70 ppb.  In general, EPA is required to issue designations within two years of publication of a new standard. Designations for the 2015 standard were originally due by this October, and EPA would have been required to preview for the states its intended designations at least 120 days in advance of the October deadline – by this August.    Continue Reading EPA Extends Deadline for Final Area Designations under the 2015 Ozone NAAQS

 

Yesterday, November 2, 2016, EPA released a pre-publication version of proposed regulations that spell out how the Agency’s 2015 ozone National Ambient Air Quality Standard (NAAQS) will be implemented. The proposed regulations apply to states with areas that are classified as nonattainment for the 2015 standard of 70 parts per billion (ppb), as well as to states in an Ozone Transport Region.

Continue Reading EPA Issues Proposed Implementation Rule for the 2015 Ozone Standard