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.

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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.

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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.

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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.

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EPA Proposes “Good Neighbor” Plan Addressing Regional Ozone Transport for the 2015 Ozone National Ambient Air Quality Standard

On April 6, 2022, the U.S. Environmental Protection Agency (EPA) is scheduled to publish its proposed Federal Implementation Plan Addressing Ozone Transport for the 2015 Ozone National Ambient Air Quality Standards (NAAQS), otherwise known as the latest iteration of EPA’s Cross-State Air Pollution Rule or “Good Neighbor” Plan. The proposal would subject 26 upwind states to the “good neighbor” or “interstate transport” provision of the Clean Air Act because EPA is proposing to find that nitrogen oxide (NOx) emissions, which are a precursor to ozone formation, from the upwind states significantly contribute to downwind states’ attaining and maintaining the 2015 ozone NAAQS.

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D.C. Circuit Strikes Down ACE Rule

On January 19, 2021, the U.S. Court of Appeals for the District of Columbia Circuit struck down the Affordable Clean Energy Rule (ACE), which the Environmental Protection Agency (EPA) promulgated in 2019 to replace the Obama-era Clean Power Plan (CPP). The CPP had sought to reduce greenhouse gas (GHG) emissions from existing power plants, in part, by authorizing states to increase renewable generation. As explained in a previous post, EPA had reasoned that it had the discretion to define the best system of emission reduction (BSER) at a plant under Section 111 of the Clean Air Act (Act) to include measures employed outside the facility (such as new renewable resources) that were located “beyond the fenceline.” Stayed by the Supreme Court in 2016, the CPP never went into effect. Instead, the Trump administration repealed the CPP and replaced it with ACE. In ACE, EPA reasoned that Section 111 of the Act required EPA to only find BSER to be a technology that could be applied “inside the fenceline” on the facility.

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