EPA’s New Proposed Air Emissions Reporting Rule: More Companies Covered, More Emissions to Report, More Often

Faegre Drinker Biddle & Reath LLP

Faegre Drinker Biddle & Reath LLP

At a Glance

  • EPA is proposing to annually collect new air emissions data and other information EPA never previously required to be collected, including potentially Per- and Polyfluoroalkyl Substances (PFAS).
  • This rule will impact over 120,000 facilities and state environmental agencies and cost over $3 billion.
  • EPA is collecting more information to develop regulations faster and provide more information to the public. In addition to new regulatory requirements, this could result in additional enforcement and lawsuits for companies.

On August 9, 2023, the U.S. Environmental Protection Agency (EPA) published its proposed updated Air Emissions Reporting Rule (Updated AERR).1 The comment period for the AERR closes on October 18, 2023, and EPA expects to finalize the AERR in Summer 2024.

According to EPA, the Updated AERR will cost over $3 billion over the next 10 years, impact over 120,000 facilities including approximately 43,000 small businesses. Reporting requirements begin in 2027, although companies and states will need to begin preparing before then.

The AERR was initially finalized in 2002 as a way to consolidate reporting requirements for various EPA Clean Air Act regulations – such as for National Ambient Air Quality Standards (NAAQS) and Regional Haze Program. Currently, the AERR requires state and local air agencies to collect criteria air pollutants and precursors (CAPs) emissions data from facilities within their area and report that information to EPA.

The Updated AERR would require facilities to additionally submit their actual emissions of hazardous air pollutants (HAPs) to EPA — either directly or indirectly — in addition to their CAPs emissions. HAPs have generally been collected on a voluntary basis through state environmental agencies. In addition, EPA is collecting information on generating units located at facilities.

Per- and Polyfluoroalkyl Substances (PFAS) are neither a CAP nor a HAP, but EPA nonetheless is taking comment on whether they should collect air emissions data on PFAS (and provides example regulatory text). EPA recognizes the issues with the lack of emissions monitoring techniques as well as a lack of toxicity or risk from PFAS; however, EPA proposes an actual emissions air emissions reporting threshold of 0.05 tons per year (TPY) based on Toxics Reporting Inventory (TRI) thresholds.

EPA’s justification for increased reporting requirements for HAPs is based on the EPA Office of Inspector General’s report that recommended EPA “establish requirements for State reporting of air toxics emissions data and compliance monitoring information.”2 In addition, EPA cites to Louisiana Environmental Action Network v. EPA, 955 F.3d 1088 (D.C. 2020), which required EPA to consider all HAPs emitted from all emissions points for each category when reviewing National Emission Standards for Hazardous Air Pollutants (NESHAPs).3 This means that companies that have facilities with unregulated HAPs or emission sources (such as fugitive emissions) can expect this information to be used to in future rulemakings to include those unregulated emissions.

In addition to collecting emissions information from sources around the country, EPA is also proposing to require companies to detail all state and federal air requirements to which the source is subject, thereby giving a roadmap for future enforcement actions or citizen suits.

What Does This Mean for Companies?

In the near term, companies covered by this rule will have to gather the required information for eventual reporting to the EPA. This also adds new reporting requirements that are subject to inspections by EPA. According to EPA, the required information for the AERR will be more detailed than currently provided under the TRI for many HAPs because the EPA says it needs this additional information to perform the appropriate modeling to assess risk and to establish new requirements. This continues EPA’s use of modeling to limit emissions from facilities and require additional control equipment.

EPA stated that they plan to allow for information that is submitted under the Updated AERR to be cross applied to other programs such as the TRI reporting program.

For large sources of emissions that already are required to submit air quality information to EPA or the state under their air permits, the increase in requirements will be fewer; however, the information reporting frequency will be significantly higher. For smaller sources of emissions that have traditionally either not had to report or reported significantly less information, those sources will be required to submit more information than previously.

The rule also proposes flexibility for small businesses (as defined by the U.S. Small Business Administration or Clean Air Act) that would not have to report as detailed information. However, that flexibility for a small business can be removed if modeling results show cancer risk from the facility greater than 20-in-one million.

EPA's stated objective is to use the information provided by companies to develop new regulations. According to EPA, this emissions data will not be confidential and will be made publicly available. With recent actions taken by EPA related to community monitoring and the increase in citizen suits, additional publicly available emissions data can increase potential liability for companies. In other words, this information will be used for enforcement purposes or in potential litigation from citizens, states and/or localities.

EPA specifically cites to additional information being used for regulatory actions such as: implementation of NAAQS and Regional Haze Program; National Emission Standard for HAPs (NESHAPs); and Integrated Risk Information System (IRIS) program analyses.


  1. 88 FR 54118 (Aug. 9, 2023).
  2. U.S. EPA Office of Inspector General, ‘‘Improvements in Air Toxics Emissions Data Needed to Conduct Residual Risk Assessments,’’ Report No. 08–P–0020, October 31. 2007, https://www.epa.gov/office-inspector-general/report-improvements-air-toxics-emissions-data-needed-conduct-residual-risk.
  3. 88 FR at 54127/1.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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