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