On April 26, 2018, the U.S. Fish and Wildlife Service (“FWS”) issued a memorandum addressing the need for an incidental take permit (“ITP”) under the Endangered Species Act (ESA) for the modification of listed species’ habitat (“ITP Memo”). As background, under the ESA, the “take” of an endangered species is prohibited. This prohibition has been extended to threatened species through a blanket 4(d) rule. In certain circumstances, take that is not purposeful and occurs incidental to some other action can be authorized through the issuance of an ITP.
On April 17, 2010 EPA issued a guidance document on the implementation of significant impact levels (“SIL”) for ozone and fine particles. Under EPA’s air pollution permitting regime known as “New Source Review,” SIL values are one way to demonstrate that a new facility or modification of an existing facility will not cause a violation of the National Ambient Air Quality Standards (“NAAQS”) or Prevention of Significant Deterioration (“PSD”) increments for a regulated pollutant. In short, if a source’s “projected impact on air quality” is below the “SIL,” the source is deemed to have no significant impact on air quality. If a source’s impacts are above the SIL, far more extensive modeling analyses are needed to demonstrate compliance, so the SIL helps streamline the permitting process for projects that can meet it.
On March 31, 2018, the District Court for the District of Columbia ordered the Environmental Protection Agency (“EPA”) to complete a residual risk and technology review (“RTR”) by October 1, 2021 for nine source categories of hazardous air pollutants (“HAPs”). The specific source categories at the center of this challenge were:
• Primary Copper Smelting
• Carbon Black Production
• Cyanide Chemicals Manufacturing
• Spandex Production
• Flexible Polyurethane Foam Fabrication Operations
• Refractory Products Manufacturing
• Semiconductor Manufacturing
• Primary Magnesium Manufacturing
• Mercury Cell Chlor-Alkali Plants
Section 112 of the Clean Air Act establishes a two-stage process for regulating HAPs from stationary sources. In the first stage, EPA is required to develop technology-based standards, known as MACT standards, for specified industrial source categories. In the second stage, EPA must reassess those standards eight years after they are promulgated. This second stage is itself divided into two distinct processes: a one-time residual risk review and a technology review to be conducted every eight years.
The deadlines for these sources were seven to eight years past due. Thus, plaintiff environmental groups claimed that EPA violated the CAA because it failed to timely issue the RTRs, and they proposed an intense schedule for EPA to complete the rulemakings. Plaintiffs proposed that EPA promulgate final rules for five source categories by March 31, 2019, and for the remaining four source categories by March 31, 2020. While EPA did not disagree that the rulemakings were past due, the Agency argued that the proposed timeline was impossible to meet because of the limited resources at the Agency’s disposal and the complexities involved in these types of rulemakings. Because of these restraints, EPA requested seven years to complete the nine rulemakings, proposing nine specific dates with the earliest rule due by July 22, 2022 and the latest due by January 16, 2025.
The court held that EPA failed to demonstrate that it was impossible to issue the rulemakings in a timely manner. However, it found that the plaintiffs’ timeline was “much too draconian.” Therefore, the court set its own timeline, requiring EPA to begin the rulemakings by January 1, 2019 and issue final rules for all nine source categories no later than October 1, 2021, in less than four years. Importantly, the court gave EPA some flexibility by allowing the Agency to “move for an extension of the deadlines” if it needs more time.
On April 2, 2018, the U.S. Fish and Wildlife Service (“USFWS”) submitted three proposed rules to the Office of Management and Budget (“OMB”), which is charged with reviewing every final and proposed federal agency rule before its publication in the Federal Register. These proposals, if implemented, will significantly change USFWS’ implementation of the Endangered Species Act (“ESA”).
On March 16, 2018, the D.C. Circuit Court of Appeals partially upheld and partially rejected an EPA rule known as the “Boiler MACT.” Officially named the “National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters,” it regulates the emissions of certain types of air pollutants known as “hazardous air pollutants” from boilers located at “major sources” of those pollutants. EPA issued the rule in several different rulemakings, due to the fact that the agency decided to reconsider a few provisions several times along the way. As a result, the litigation over the rule became very complicated. Sierra Club challenged numerous provisions of the rule, claiming that they failed to comply with the Clean Air Act. Most of those challenges were resolved in a 2016 decision, but the court had reserved two issues that were finally decided this week—namely Sierra Club’s challenges to EPA’s carbon monoxide (CO) limits for certain boilers and the startup and shutdown work practices. Specifically, Sierra Club alleged that (1) EPA failed to adequately justify its decision to make CO limit less stringent (130 ppm), and (2) EPA’s qualitative “work practice” standards during startup and shutdown are unlawful.
On March 20th, the DC Circuit upheld EPA’s June 2012 “CSAPR = BART Rule,” establishing that compliance with EPA’s Cross State Air Pollution Rule (CSAPR) will satisfy the Best Available Retrofit Technology (BART) requirements for SO2 and/or NOx under the Regional Haze Rules for electric generating units (EGUs) subject to CSAPR. Under the Regional Haze Program, EPA has issued regulations that allow the Agency to approve alternatives to BART if EPA finds that the controls are “better than BART.”
EPA published a proposed rule (83 Fed. Reg. 11654) today that would ease the management standards for aerosol cans. Stakeholders, particularly the retail sector, has pushed for this addition for some time. Currently, once a waste, aerosol cans must often be managed as hazardous waste under the Resource Conservation and Recovery Act (RCRA), generally because of their ignitability, and thus often are subject to stringent regulations related to handling, transportation, and disposal. Today’s proposal would add aerosol cans to the existing federal list of universal wastes.
NSR—the program imposing onerous permitting requirements on the construction of new sources and “major modification” projects at existing sources—requires industrial sources of air emissions to determine whether the projects they propose will increase those emissions. EPA adopted regulations in 2002 to provide a new structure for those critical emission calculations, which specifies that sources must calculate the “sum of the differences” between a baseline and a future projection for each existing emission unit. That language is particularly important for individual projects that may cause emissions to go down at one unit but up at another.
On March 1, 2018, the U.S. Environmental Protection Agency’s (“EPA”) Administrator, E. Scott Pruitt, signed a notice seeking public comment on the proposed withdrawal of the control techniques guidelines (“CTG”) for the oil and natural gas industry. The oil and natural gas CTGs make recommendations for reducing volatile organic compound emissions from oil and natural gas equipment and processes in ozone nonattainment areas classified as Moderate or higher and states in the Ozone Transport Region by addressing reasonably available control technology review requirements in their state implementation plans.
On March 1, 2018, EPA released a final rule defining nonattainment area classifications under the 2015 ozone standard, along with attainment deadlines for each classification. The rule finalizes the classifications and deadlines that were originally proposed by the Obama administration in a proposed rule issued on November 17, 2016. (81 Fed. Reg. 81,276). According to Section 181(a)(1) of the Clean Air Act, nonattainment areas must be classified at the time of designation, so this rulemaking clears the way for EPA to issue final designations for the 2015 standard. The air quality thresholds for each classification and the associated attainment deadlines are listed in the chart below. The final rule has not yet been published in the Federal Register.
|CLASSIFICATION||THRESHOLD||MAXIMUM ATTAINMENT DATE|
|Marginal||71 ppb up to 81 ppb||3 years|
|Moderate||81 ppb up to 93 ppb||6 years|
|Serious||93 ppb up to 105 ppb||9 years|
|Severe||105 ppb up to 163 ppb||15 years (or 17 years)|
|Extreme||163 ppb||20 years|
* from effective date of designation