The U.S. Department of the Army’s Assistant Secretary for Civil Works has issued a policy directive memorandum requiring the U.S. Army Corps of Engineers (USACE) to adhere to a “default time period” of 60 days for states to act on a request for water quality certification under Clean Water Act Section 401 with regard to USACE’s issuance of dredge and fill permits under CWA Section 404. The policy memorandum also requires USACE to “immediately draft guidance” to establish criteria for USACE District Engineers to identify circumstances that may warrant additional time for states to decide on an application for water quality certification.
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.
EPA posted its final implementation rule for the 2015 ozone standard on its website November 8, 2018, the day after it was signed by Andrew Wheeler. The final rule, like the proposed rule published in November 2016, retains many of the provisions from the implementation rule for the 2008 ozone standard, including provisions related to SIP submittal deadlines, modeling and attainment demonstration requirements, Reasonable Further Progress (RFP), Reasonably Available Control Technology (RACT), and Reasonably Available Control Measure (RACM) requirements, and ambient monitoring requirements.
New provisions from the 2016 proposal that were retained in the final rule include allowing states to use inter-precursor emissions trading and requiring state agencies to consider the impacts of in-state emission sources located outside the nonattainment area and require control measures on those sources if necessary to achieve attainment by the deadline. EPA’s final rule also addresses state concerns about international transport impacts and makes clear that nonattainment areas do not have to adjoin international borders for states to make a claim under Section 179B of the Clean Air Act that international transport affects their ability to attain the 2015 ozone standard.
The final rule specifically sidesteps addressing a February 2018 ruling by the D.C. Circuit in South Coast Air Quality Management District v. EPA which stayed certain anti-backsliding requirements in the 2008 implementation rule that were also contained in the 2016 proposal. EPA has indicated that it will address any revocation of the 2008 ozone standard and related anti-backsliding requirements in a separate future rulemaking. The final implementation rule will become effective 60 days after its eventual publication in the Federal Register.
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.
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.
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.
EPA’s proposed rulemaking to repeal the Clean Power Plan, signed by EPA Administrator Scott Pruitt on October 10, 2017, was published in today’s Federal Register (82 Fed.Reg. 48,035, Oct. 16, 2017). Comments will be accepted on the proposed rule through December 15, 2017. See our analysis of the proposal here.