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.

Continue Reading EPA Proposes Revised Cross-State Air Pollution Rule for the 2008 Ozone NAAQS

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.

Continue Reading EPA Finalizes Clean Air Act Rule Allowing Some Major Sources to Re-Classify as Area Sources

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.

Continue Reading EPA Releases New Guidance on Startup, Shutdown, and Malfunction Provisions in State Regulations

The EPA has issued a rule requiring all significant agency guidance to undergo a public notice and comment process prior to issuance, modification or withdrawal (Rule). The new Rule was adopted pursuant to Executive Order 13891, which also required the agency to distinguish active guidance from inactive guidance, and to limit documents available through the official EPA guidance portal (Order). As of June 27, 2020 only guidance available through the official agency guidance portals qualifies as active guidance.

Continue Reading EPA Adopts Measures to Improve the Transparency of Significant Agency Guidance

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.

Continue Reading Illinois Finalizes Regulations for Direct Implementation of Prevention of Significant Deterioration (PSD) Permitting under the Clean Air Act

The Illinois Environmental Protection Agency (IEPA) released new proposed groundwater quality standards for select per- and polyfluoroalkyl substances (PFAS). The new standards were released as a discussion draft of proposed amendments to the groundwater quality rules under 35 Ill. Adm. Code Part 620, regulating the following PFAS types:


Continue Reading Illinois EPA Proposes PFAS Standards

On March 3, 2020, the Illinois Environmental Protection Agency (IEPA) filed with the Illinois Pollution Control Board (Board) proposed regulations establishing standards for coal combustion residue (CCR) surface impoundments, commonly referred to as coal ash ponds, at power generating facilities. The Board published the rules for First Notice on April 16, 2020. The first public hearing was on August 11, and continued on August 12, 13 and 25. Due to the COVID-19 pandemic, virtual participation in the hearings was allowed by WebEx or by telephone. The second public hearing, which will allow testimony from the regulated community and other interested parties, is set for 9 a.m. on September 29, and continue as necessary on September 30 and October 1. The hearings are planned to be held in-person at the Board’s offices in Chicago, with virtual participation again allowed via WebEx or telephone. The hearing officer’s order scheduling the hearing dates and providing access information can be found here.
Continue Reading Illinois Pollution Control Board Schedules Second Round of Public Hearings on Proposed Regulations for Coal Ash Ponds

In 2020, even the hand sanitizer is potentially suspect. Retailers, distributors and corporate purchasers are now grappling with the added problem of clearing their shelves of it and stopping employees from using the Food and Drug Administration (FDA) recalled product.

Earlier this year, to combat the novel coronavirus, the FDA issued temporary guidance to streamline regulatory processes for manufacturing alcohol-based hand sanitizer (typically ethanol or isopropyl alcohol) to get product quickly to market. Many manufacturers (generally foreign manufacturers), however, then distributed toxic or defective product to U.S.-based distributors. As such, the FDA issued a recall for certain hand sanitizer products beginning in June 2020. Over the following months, it has expanded this recall, citing risks that some products pose a risk of poisoning users with methanol and wood alcohol or leaving customers exposed to COVID-19 as a result of either adulteration or ineffective ingredients.. The FDA has advised importers, consignees, distributors, retailers and others not to distribute or sell certain hand sanitizers, even if the manufacturer of the product has not recalled it, due to the dangers of methanol contamination, including death.


Continue Reading Sanitizing Hand Sanitizer — Managing FDA-Recalled Hand Sanitizer

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.

Continue Reading Amicus Briefing Suggests Citizen Suits Are Unconstitutional

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).

Continue Reading Illinois Moves to Undertake Direct Implementation of Prevention of Significant Deterioration (PSD) Permitting under the Clean Air Act