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.
Continue Reading

On June 25, 2019, EPA released a pre-publication draft of a proposed rule allowing sources subject to Maximum Achievable Control Technology (MACT) standards under Section 112 of the Clean Air Act to voluntarily limit their emissions and avoid MACT.  The proposed rule, which formalizes and expands on a January 2018 guidance document issued by former EPA Assistant Administrator Bill Wehrum, would allow “major sources” of hazardous air pollutants (HAPs) otherwise subject to MACT standards to take an enforceable limit on HAPs and thus reclassify as “area sources.”  The rulemaking, branded by the Agency as “Major MACT to Area” (MM2A), would eliminate the Agency’s longstanding “once-in-always-in” policy, under which a facility that qualified as a major source of HAPs as of the “first substantive compliance date” of the applicable MACT standard was permanently subject to that standard, even if the source was later able to reduce its emissions below major source applicability thresholds. 
Continue Reading

EPA fulfilled one of President Trump’s campaign promises this week with the publication of the final Affordable Clean Energy rule—ACE—to replace the Clean Power Plan.  Like the Clean Power Plan, ACE is an “emission guideline” issued under Section 111(d) of the Clean Air Act to regulate the emission of carbon dioxide (CO2) from the electric utility sector.  However, while the Clean Power Plan could only be achieved by shifting electricity generation away from energy resources that emit CO2, ACE only regulates sources of CO2 emissions directly by requiring efficiency improvements at coal-fired power plants.

The notice published on Monday actually contains three separate actions: (1) the repeal of the Clean Power Plan, (2) the adoption of ACE, and (3) revisions to the general regulations governing all “emission guidelines” adopted under Section 111(d).  EPA asserts that each of these components constitutes a separate rulemaking action, but at least the first two are grounded in the same fundamental idea—that Section 111(d) only authorizes EPA to select as a “best system of emission reduction” something that can be “applied” to an individual regulated “stationary source” of emissions. 
Continue Reading

On June 21, 2019, the White House Council on Environmental Quality (CEQ) released a new draft guidance redefining the process federal agencies will use to evaluate greenhouse gas (GHG) emissions under the National Environmental Policy Act (NEPA). In marked contrast to GHG guidance issued by CEQ under the Obama Administration in 2016, the draft guidance encourages federal agencies undertaking NEPA review to follow the “rule of reason” and use their “expertise and experience” to decide whether and to what degree the agency will analyze particular effects of GHG emissions. Therefore, the draft guidance moves to a more deferential approach to agency review under NEPA than the Obama Administration’s prescriptive guidance. The draft guidance will be published in the Federal Register for public review and comment. If finalized, it will replace the Obama Administration’s 2016 guidance, which was withdrawn effective April 5, 2017, after President Trump issued Executive Order (EO) 13783, “Promoting Energy Independence and Economic Growth.” 
Continue Reading

On the heels of similar proposal last month by EPA Region 6 for Texas , EPA Region 4 has now proposed to withdraw the startup, shutdown, and malfunction (SSM) “SIP Call” for North Carolina.  Both of these two actions represent EPA’s latest answer to a vexing question:  what should an industrial source of air emissions do when unavoidable and abnormal circumstances cause emissions to exceed a limit designed only for normal operations?  EPA’s SIP Call in 2015 reinforced policies intended to make those circumstances into a violation of the Clean Air Act and force states to adopt rules implementing those policies.  The recently proposed withdrawals of the SIP Call confirm that EPA, at least in Regions 4 and 6, is planning to allow states more latitude in deciding how to handle SSM events.

Continue Reading