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On October 29, EPA published a proposed revision to its Cross State Air Pollution Rule (CSAPR) Update in response to the remand of the rule by the D.C. Circuit. The CSAPR Update was promulgated under the Clean Air Act’s “Good Neighbor” provision, which requires states to ensure that pollution from sources within their borders does not significantly contribute to the ability of downwind states to attain or maintain the National Ambient Air Quality Standards (NAAQS). Under the Good Neighbor provision, if a State Implementation Plan (SIP) does not adequately address the interstate transport of pollutants, EPA must step in and issue its own rules through a Federal Implementation Plan (FIP). EPA issued the CSAPR Update in 2016, imposing FIPs on 22 states requiring ozone season NOx reductions from electric generating units (EGUs) to address the 2008 ozone NAAQS. In the 2018 CSAPR Closeout, EPA determined that no further emission reductions were required for all but two of the states covered by the CSAPR Update.

On October 1, 2020, the Environmental Protection Agency (“EPA”) issued its final rule allowing for a source classified as a “major source” of hazardous air pollutants (“HAP”) under section 112(a) of the Clean Air Act to reclassify as an “area source.”  A “major source” emits or has the “potential to emit” 10 tons per year or more of a single HAP or 25 tons per year or more of a combination of HAP.  The EPA had long-followed the “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 Maximum Achievable Control Technology (“MACT”) standard was permanently subject to that standard, even if the source was later able to reduce its emissions below major source applicability thresholds.  With the final rule, branded as the “Major MACT to Area” (“MM2A”), EPA codified the withdrawal of the “once-in-always” policy and provided the requirements that apply to major sources choosing to reclassify, including reclassification that occurs after the first substantive compliance date of an applicable MACT standard.

State strategies for regulating air emissions during periods of startup, shutdown, and malfunction (SSM) have been a controversial topic in recent years. Air emissions can be higher during periods of SSM because emitting units are not in steady-state operation and some pollution control devices cannot be operated effectively or safely during such events. Since most air emission limitations are not crafted to cover periods when emission units are not operating normally, many states have adopted regulations in their Clean Air Act-required State Implementation Plans (SIPs) to provide compliance flexibility for sources during periods of SSM. These regulations typically take the form of either automatic or discretionary exemptions for emissions that exceed otherwise applicable limitations, or affirmative defenses to liability or penalties for violations asserted by enforcement authorities or private citizens.

As of September 4, 2020, Illinois has responsibility for direct administration of the Prevention of Significant Deterioration (PSD) permitting program under state regulations, including federal Clean Air Act (CAA) requirements under authority delegated by the U.S. Environmental Protection Agency (EPA). In doing so, Illinois joins 46 other states that have elected to administer the PSD program directly.  State PSD regulations, added as Part 204 of the Illinois air quality pollution rules, 35 Ill. Adm. Code Part 204, were published in the Illinois Register on September 19, 2020.

Environmental justice has received greater attention in 2020, both because it is an election year, but also because of the increased focus on racial inequality since the killing of George Floyd in May 2020. Many states are considering legislation on this topic, but on August 27, 2020, New Jersey passed a significant environmental justice bill, the first to require denial of a permit on environmental justice ground.

A recent amicus curiae filing in a high-profile Michigan Clean Air Act case targets an important aspect of environmental law — citizen suit provisions — and whether they run afoul of constitutional principles. In U.S. v. DTE Energy et al.,[1] a Michigan district court is considering arguments of two law professors who question whether citizen suits invade executive powers.

Illinois is taking the final steps toward adopting an authorized state program for direct administration of the Prevention of Significant Deterioration (PSD) permitting program under proposed state regulations, taking responsibility for federal Clean Air Act (CAA) requirements previously administered under delegated authority from the U.S. Environmental Protection Agency (EPA).

On July 8, 2020, EPA pre-published a proposed rule to amend the NESHAP for Industrial, Commercial, and Institutional Boilers and Process Heaters (Boiler MACT) in response to three remands issued by the D.C. Circuit—two in 2016 in U.S. Sugar Corp. v. EPA, 830 F.3d 579 (D.C. Cir. 2016) and one in 2018 in Sierra Club, et al. v. EPA, 884 F.3d 1185 (D.C. Cir. 2018). Based on the proposal, EPA’s effort to comply with those decisions will make 28 emission limits more stringent than they were before, many only marginally so, but some by more than an order of magnitude.

On May 5, 2020, the Illinois Attorney General filed a complaint against a developer and its contractors responsible for demolishing the smokestack of a former coal-fired power plant in Chicago. The suit provides a good reminder that careful planning for the control of fugitive dust emissions is critical during decommissioning activities—and that state legal offices and regulators will keep their eyes on potential environmental issues at coal-fired plants until the last brick comes down.

Under the Clean Air Act, a facility that emits air pollutants may not be constructed unless an air permit has been issued to the facility.  For decades, EPA has interpreted the statute to prohibit almost any construction or modification activities until a permitting authority issues a final permit.  But on March 25, 2020, EPA proposed new guidance to clarify that, according regulations adopted 40 years ago, the only construction prohibited prior to issuance of an air permit is construction on the emitting unit itself.