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The U.S. Environmental Protection Agency (EPA) has announced its decision to retain the current National Ambient Air Quality Standards (NAAQS) for fine particulate matter (PM2.5) and ozone (O3) under the Clean Air Act. However, the new Biden EPA is all but certain to reevaluate the standards and likely to reach different conclusions.

PM2.5 is a mixture of small liquid or solid particles found in the air that are less than 2.5 micrometers (μm) in aerodynamic diameter. O3 is a reactive gas that is formed through chemical reactions of nitrogen oxides and volatile organic compounds in the atmosphere. Under the CAA, EPA must ensure the ambient standards for both pollutants are established at a level “requisite to protect the public health” with “an adequate margin of safety,” and EPA must review the NAAQS every five years to determine whether the standards should be retained or revised.

The U.S. Environmental Protection Agency (EPA or Agency) issued final regulations governing cost-benefit analyses for Clean Air Act (CAA) rulemakings on December 23, 2020. The rule, titled “Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process,” imposes certain requirements on the Benefit-Cost Analysis (BCA) that EPA must conduct for “significant” CAA regulations and requires EPA to consider that analysis when promulgating the regulations, unless otherwise prohibited by law. The rule seeks to force EPA to focus more on the direct benefits of a rule rather than justifying a rule based on the indirect benefits, as EPA has done with certain controversial rules in the past. However, the rule is unlikely to survive long or have much effect under the Biden administration.

Ross Brings Unique Background of Federal, State and Private Sector Experience to Firm, Expanding Environmental and Natural Resources Practice

WASHINGTON (January 11, 2021) – Dave Ross, a longtime public servant who has held key leadership positions in federal and state environmental agencies, has joined Troutman Pepper as a partner in the firm’s Environmental and Natural Resources Practice Group in Washington, D.C. Ross’ policy background, along with a distinctive combination of federal, state and private sector experience, will significantly expand the capabilities of the firm’s 50-attorney national environmental practice, which serves clients in a variety of industries across the United States.

On December 8, the United States Environmental Protection Agency (EPA or the Agency) issued draft guidance to clarify the application of the “functional equivalent” test created by the United States Supreme Court in County of Maui v. Hawaii Wildlife Foundation, 140 S. Ct. 1462 (2020). The guidance is intended to help both members of the regulated community and permitting authorities determine when a National Pollutant Discharge Elimination System (NPDES) permit may be required for discharges from point sources that reach navigable waters through groundwater. Comments on the draft guidance are due 30 days after its publication in the Federal Register.

On the evening of November 30, United States Environmental Protection Agency (EPA) announced a new interim strategy to address per- and polyfluoroalkyl substances (PFAS) in the environment through EPA-issued wastewater discharge permits under the National Pollutant Discharge Elimination System (NPDES). While some states have already begun regulating PFAS in wastewater and stormwater discharges, this policy represents a shift by EPA from focusing solely on PFAS contamination of drinking water and standard setting under the Safe Drinking Water Act, to detailing an interim NPDES permitting strategy under the Clean Water Act to address PFAS. The new interim strategy’s primary recommendation is for permit writers to consider “phased-in monitoring” of PFAS compounds.

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.

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.

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.