Presidential Exemption for Certain Stationary Sources of Air Pollution
The Environmental Protection Agency (EPA) has opened an electronic mailbox to allow regulated sources to request a Presidential Exemption under section 112(i)(4) of the Clean Air Act (CAA) from nine National Emission Standards for Hazardous Air Pollutants (NESHAPs) that EPA is reconsidering (see table below) across the energy, manufacturing, and chemical sectors.
EPA Issues Final Rule for Major Source Reclassification Under Clean Air Act Section 112
On Tuesday, September 10, the U.S. Environmental Protection Agency (EPA) issued a final rule establishing requirements for major sources of hazardous air pollutants — sources that emit or have the potential to emit 10 tons per year of a single hazardous air pollutant or 25 tons per year of a combination of hazardous air pollutants — that reclassify as area sources below these thresholds. Reversing a rule adopted during the Trump administration, the rule provides that sources emitting any of the seven persistent and bioaccumulative hazardous air pollutants listed under Section 112(c)(6) of the Clean Air Act must continue to comply with major source standards even if otherwise reclassified as area sources. As a result, reclassified sources will still be subject to maximum achievable control technology standards rather than less stringent standards applicable to area sources. In so doing, EPA maintains that at least 90% of the cumulative emissions of these pollutants will be subject to National Emission Standards for Hazardous Air Pollutants (NESHAP) regardless of future source reclassifications.
U.S. EPA Proposes Revisions to Project Emissions Accounting Under New Source Review
The U.S. Environmental Protection Agency (EPA) is proposing revisions to the New Source Review (NSR) permitting program that would make it more difficult to net out of NSR requirements by changing how to calculate the net emissions resulting from a facility modification. EPA also proposes to define the term “project” more narrowly to prevent sources from aggregating changes to net out of major NSR requirements. The proposal would revise reforms adopted only four years earlier during the Trump administration that had provided additional flexibility to sources making changes to their operations.
U.S. EPA Publishes New Regulations Governing State Plans for Existing Sources of Emissions
On November 9, 2023, the U.S. Environmental Protection Agency (EPA) published implementing regulations that set timelines and other requirements for state plans to limit pollution from existing sources under Clean Air Act (CAA) Section 111. The amended provisions apply to all emissions guidelines published after July 8, 2019, and will affect the scope and pace of development of updated performance standards for existing facilities.
EPA Proposes Stricter Air Pollution Limits on Reclassified Area Sources
On September 21, 2023, the U.S. Environmental Protection Agency (EPA) published a notice of a proposed rule, “Review of Final Rule Reclassification of Major Sources as Area Sources Under Section 112.” The proposal adds requirements for regulated sources of hazardous air pollutants (HAPs) to reclassify from major source status to area source status under the National Emission Standards for Hazardous Air Pollutants (NESHAPs) program. Stakeholders who qualified under the revised policy adopted by the Trump administration should particularly take note of this further change by the Biden administration’s EPA. Comments are due by November 13, 2023.
Regulated Entities in California Communities May Face More Investigation and Enforcement by California Air Resources Board
Regulated entities in designated communities — compiled and termed the “Consistently Nominated AB 617 Communities list” — will want to pay close attention to updates from the California Air Resources Board (CARB) on its Community Protection Program Blueprint 2.0. Currently, communities in the Bay Area, Imperial, San Joaquin Valley, Sacramento Metropolitan, and South Coast air districts are on the list. As part of a mandate to reduce toxic air contaminant and criteria pollutant emissions in communities that have a high cumulative exposure burden, CARB is updating the Program Blueprint 2.0 as required under Assembly Bill 617, adopted by the California Legislature July 26, 2017. CARB’s present revisions may result in increased investigation and enforcement of regulated entities in these communities.
U.S. EPA Proposes New Risk Management Program Standards for Stationary Sources
On August 19, 2022, the U.S. Environmental Protection Agency (EPA) issued a proposed rule to revise Risk Management Program (RMP) standards for stationary sources using certain regulated substances under the Clean Air Act (CAA). EPA’s proposal marks the latest reconsideration of a rule issued under the prior administration, as directed by Executive Order 13990. The proposed changes include more stringent requirements for accident prevention, emergency preparedness, and public availability of information as well as regulatory clarifications, with climate change and environmental justice featured prominently as a basis for many proposed changes. Interested parties will have 60 days to comment on the proposed rule following publication in the Federal Register.
