D.C. Circuit Largely Vacates EPA State Implementation Plan Call on Startup, Shutdown, and Malfunction Rules

In a 2–1 decision, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) largely vacated an Environmental Protection Agency (EPA) rule requiring 32 states to amend their Clean Air Act implementation plans (called State Implementation Plans, or SIPs) by removing provisions providing either exemptions or affirmative defenses to excess emissions from unit startups, shutdowns, or malfunctions (SSM) — times when pollution controls often cannot fully function as needed.[1] Sources in states that still have or revert to allowing an SSM defense may now have this important operational flexibility. However, stakeholders should track the actions of their individual states and keep close watch on whether EPA or environmental groups seek rehearing or appeal the ruling.

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California Air Resources Board Will Workshop Omnibus Regulation Amendments

The California Air Resources Board (CARB) announced that it will hold a public workshop to discuss amendments to its Heavy-Duty (HD) Engine and Vehicle Omnibus (Omnibus) Regulation. The amendments have been proposed following extensive discussion between CARB and the Engine Manufacturers Association (EMA) during 2023, which culminated in CARB agreeing to revise its heavy-duty vehicle emission standards to align more closely with U.S. Environmental Protection Agency standards.

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California Agencies Proceed With Revisions to Vapor Intrusion Guidance

California agencies issued a public notice that they will hold a workgroup to answer questions and engage with stakeholders on the agencies’ latest vapor intrusion guidance. The workgroup comes following years of confusion among stakeholders regarding the agencies’ application of draft guidance for addressing vapor intrusion, including during site cleanup and redevelopment.

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U.S. EPA Sets Stricter National Ambient Air Quality Standards for Particulate Matter

On February 7, 2024, the U.S. Environmental Protection Agency (EPA) issued a final rule under the Clean Air Act lowering the primary (health-based) annual National Ambient Air Quality Standard (NAAQS) for fine particulate matter 2.5 micrometers in diameter or smaller (PM2.5) from 12 to 9 micrograms per cubic meter (µg/m3). EPA asserts that the stricter standard is based on scientific evidence showing that the current PM2.5 standard (12 µg/m3), which was established in 2012 and retained in 2020, does not sufficiently protect human health. According to EPA, based on air monitoring data from 2020-22, 119 counties would not meet the new standard of 9 µg/m3.

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U.S. Army Corps of Engineers Proposes Broader Historic Preservation Review

On February 9, 2024, the U.S. Army Corps of Engineers (Corps) published a proposed rule that would amend the Corps permitting regulations to follow the National Historic Preservation Act (NHPA) implementing regulations as developed interpreted by the Advisory Council on Historic Preservation (ACHP). Specifically, the Corps proposes removing its own NHPA regulations, Appendix C from 33 CFR part 325, and replacing them with those promulgated by the ACHP at 36 CFR part 800. This change may lengthen the regulatory review process and expand the scope of the Corps’ NHPA review.

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U.S. EPA Proposes Nine PFAS Compounds as Resource Conservation and Recovery Act Hazardous Constituents

The Environmental Protection Agency (EPA or the Agency) is proposing to expand its authority under the Resource Conservation and Recovery Act (RCRA), including to extend its corrective action powers over an additional list of per- and polyfluoroalkyl substances (PFAS). Specifically, as part of the EPA PFAS Strategic Roadmap, EPA has prioritized development of a framework to regulate PFAS. In the June 2023 Spring Unified Agenda of Regulatory and Deregulatory Actions (Agenda), which lists federal agencies’ planned “short-term” and “long-term” regulatory actions, EPA included the short-term action of a proposed rule listing certain PFAS as hazardous constituents under RCRA.

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Challenge to Trump Administration Clean Water Act Rule Dismissed as Moot

On Wednesday, January 25, 2024, the U.S. District Court for the Northern District of California dismissed a challenge to a 2020 rule by the Environmental Protection Agency (EPA) revising regulatory requirements for water quality certification under Section 401 of the Clean Water Act. That rule came under challenge by environmental groups and Democratic-led states and was initially vacated by the district court but then reinstated by the Ninth Circuit in 2023 and remanded to the district court for additional review. However, on September 27, 2023, EPA promulgated a new rule that superseded the 2020 rule and replaced it with new Section 401 requirements, rendering challenges to the 2020 rule moot. Even as this 2023 rule is being challenged, the court stated that at present, there is no longer a pending controversy as to which effective relief can be granted. But because the 2020 rule was dismissed without prejudice, the court stated that if the 2023 rule is enjoined and the 2020 rule were to be resurrected, plaintiffs can reinitiate their challenge. Additional information on the issue is provided in prior posts on the vacatur here and 2023 rule here.

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Louisiana Federal Court Enjoins EPA’s Use of Disparate Impact Requirements in State Permitting Actions

On Tuesday, January 23, 2024, the U.S. District Court for the Western District of Louisiana granted a preliminary injunction filed by the State of Louisiana seeking to halt the efforts of the Environmental Protection Agency (EPA) in imposing disparate impact-based mandates under Title VI of the Civil Rights Act in permitting decisions. The state contends that Title VI prohibits only intentional discrimination and, as a result, EPA’s disparate-impact regulations in 40 C.F.R. §§ 7.10-180 are an unlawful attempt by EPA to impose its environmental justice policy goals in official permitting decisions. According to Louisiana, EPA’s efforts to advance disparate impact-based mandates without explicit statutory authorization runs afoul of the major questions doctrine, which requires agencies to act in accordance with explicit congressional mandate for matters of major political or economic significance.

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