For most federal rules, you don’t need a map to figure out in which states they’re the current law.  But you do for the 2015 “Clean Water Rule,” which significantly expanded the reach of the Clean Water Act by redefining the term “waters of the United States.”  That’s one reason why, on September 12, 2019, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers released a new rule to repeal the Clean Water Rule and restore prior regulations.  This “repeal rule” will take formal effect 60 days after its publication in the Federal Register.

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EPA published a proposed rule in the Federal Register on August 9, 2019 that addresses how facilities undertaking a project involving multiple air emission units are to account for emission increases and decreases associated with the project. The proposed rule incorporates an interpretation of EPA’s New Source Review (NSR) regulations originally advanced in a March 2018 guidance document from Administrator Scott Pruitt entitled “Project Emissions Accounting Under the New Source Review Preconstruction Permitting Program.”

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On Friday, August 9, the Environmental Protection Agency (“EPA”) unveiled a pre-publication version of a notice of proposed rulemaking (“NOPR”) to clarify state water quality certification (“certification”) procedures under Section 401 of the Clean Water Act (“CWA”) to allow for increased regulatory certainty in federal licensing and permitting activities, and particularly authorization of infrastructure projects.  EPA Administrator Andrew Wheeler announced on Friday that the “proposal is intended to help ensure that states adhere to the statutory language and intent of Clean Water Act.”  The NOPR proposes substantive changes to the scope of state water quality certification authority under the CWA and the procedures governing these certifications, focusing on the plain language of the statute and at times departing from prior case law precedent.

Significant components of the NOPR are summarized below.  EPA has established a 60-day period for public comment on the proposed rule, from the date of publication in the Federal Register.  In light of the substantial modifications to the scope, substance and procedures related to state water quality certification, the NOPR presents a unique opportunity for utilities, manufacturers, developers, and other regulated business entities to help shape a significant regulatory program. 
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On July 29, EPA Administrator Andrew Wheeler signed a long-anticipated proposal to amend EPA’s 2015 Coal Combustion Residuals (CCR) rule.

EPA’s proposal includes a number of changes, including the establishment of an alternate risk-based groundwater protection standard for boron, revisions to the annual groundwater monitoring and corrective action report requirements, and revisions to the CCR website requirements. The proposal also includes changes in response to the U.S. Court of Appeals for the D.C. Circuit’s August 21, 2018 remand of certain CCR rule provisions. These amendments address the “beneficial use” definition and CCR pile requirements.
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Troutman Sanders attorneys Randy Brogdon and Rich Pepper  authored an article published in Law360 titled “Workplace Safety’s Little-Known Hammer: The Clean Air Act” which examines the workplace safety requirements of the Clean Air Act and the potential consequences of exclusively relying on similar, but not identical, requirements under the Occupational Safety and Health Act. They

Yesterday, Susan Bodine, EPA’s Assistant Administrator for the Office of Enforcement and Compliance Assurance (OECA), issued final guidance for EPA regions regarding interactions between the Agency and the states in civil enforcement and compliance assurance matters.  Under the new guidance, EPA will generally defer to a state as having primary jurisdiction over inspections and enforcement, but it also sets out a number of important exceptions where EPA may take direct action.  The final guidance replaces previous interim guidance issued in January 2018.

The guidance is split into three parts and expands upon the interim guidance by providing additional procedures and outlining various principles and approaches for coordination between EPA regions and states.  The changes are the result of input from EPA regional offices, states, and a workgroup on compliance assurance that EPA and the Environmental Council of States convened in September of 2017.
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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. 
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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. 
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On June 28, EPA proposed to partially approve Georgia’s coal combustion residuals (CCR) state permit program.  If finalized, Georgia’s program will become the second to receive EPA’s approval and will operate in place of the federal CCR requirements.

In its proposal, EPA determined that—with the exception of four provisions—Georgia’s program meets the standard for EPA approval.  EPA proposed to partially approve Georgia’s program since it does not incorporate certain endangered species provisions and because it includes now-vacated provisions that exclude inactive surface impoundments at inactive facilities from regulation, allow unlined surface impoundments to continue receiving CCR unless they leak, and classify clay-lined surface impoundments as lined.  Georgia’s CCR rule has not been revised to reflect the vacatur of these provisions because EPA has not yet finalized those changes at the federal level.  EPA plans to issue proposals to address these topics in 2019.  Once finalized, Georgia EPD can amend its regulations to align with EPA’s changes and then apply for approval of those amendments at a later date.
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On June 26, 2019, EPA published a Notice of Proposed Rulemaking requesting comment on a proposed Maximum Contaminant Level (MCL) for perchlorate under the Safe Drinking Water Act (SDWA). Perchlorate is both a man-made and naturally-occurring chemical, most commonly found in industrial operations associated with the use or manufacture of rocket fuel, missiles and fireworks. Perchlorate inhibits the uptake of iodide to the thyroid and has been detected in certain public water supply systems, primarily in the western United States. In its Notice, EPA proposes an MCL of 56 µg/L, but at the same time requests public comment on whether the MCL should be set at a higher or lower standard, or whether the agency should re-evaluate its decision to regulate perchlorate based on updated data. This rule, if finalized, could affect thousands of public water systems that would be required to comply with the new standard, as well as state and tribal agencies responsible for drinking water regulatory development and enforcement.
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