What’s Next? EPA’s Air Agenda Highlights Priorities

Troutman Pepper
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Troutman Pepper

Now that we’re past July 4th and on the downhill side of summer, thoughts are turning to what EPA and the courts might do this fall with the many air quality and climate change issues before them. Here is a list of some of the most closely watched rulemakings on EPA’s recently released regulatory agenda and some key issues to watch for under the new Biden EPA. The ID numbers below for each agenda item contain links that will take you directly to the webpage tracking the status of the action.

Climate Change Rules

  • CO2 Standards for Existing Electric Generating Units Under Section 111(d) of the Clean Air Act; 2060-AV10. First, the Clean Power Plan was stayed by the Supreme Court, and then the Affordable Clean Energy (ACE) Rule was rejected by the D.C. Circuit, so EPA is back to the drawing board on its hotly contested CO2 standards for existing fossil fuel-fired power plants. Watch to see if EPA’s strategy is affected by the Supreme Court’s decision this fall on whether to review the D.C. Circuit’s vacatur of ACE and the Clean Power Plan repeal. Although EPA has consistently viewed Section 111(d) as a required and important tool for reducing greenhouse gas emissions from the power sector, there is no guarantee on when or how it will try again.
  • CO2 Standards for New Electric Generating Units Under Section 111(b) of the Clean Air Act; 2060-AV09. The Obama EPA wrote a rule requiring carbon capture and sequestration (CCS) for new coal units, which was challenged in court, but when the Trump EPA proposed to roll back the requirement, the lawsuit was temporarily halted. Now that the Biden EPA is in charge, the challenges to the Obama-era proposal may proceed.
  • Emission Guidelines for the Oil and Natural Gas Sector Under Section 111(d) of the Clean Air Act; 2060-AV15. Now that Congress has revived the methane standards for new oil and gas production, processing, transmission, and storage facilities by rejecting the Trump EPA’s rule to eliminate those standards, look for the Biden EPA to act quickly to propose similar standards at all existing facilities.
  • Phase Down of Hydrofluorocarbons Under the American Innovation and Manufacturing Act; 2060-AV17. Congress has also acted on greenhouse gases used as refrigerants by enacting the American Innovation and Manufacturing (AIM) Act to address hydrofluorocarbons (HFCs), which have for years been used as substitutes for ozone depleting refrigerants, such as chlorofluorocarbons (CFCs) and hydrofluorocarbons (HCFCs). EPA has proposed its first rule under the AIM Act, but it would not (yet) impose requirements for users of HFC-containing appliances. Watch for EPA to expand its new HFC program, and in doing so, it may also unravel a Trump EPA rule that exempted substitute HFC refrigerants from the existing leak repair program for refrigerant-containing appliances.

Ambient Air Quality and Permitting

  • Error Corrections to New Source Review Regulations; 2060-AU46. Originally proposed by the Trump EPA, this rule would clean things up in the notoriously cluttered rule implementing the New Source Review permitting program. Most of the proposed changes were noncontroversial and unlikely to have real-world impacts, but watch to see if the Biden EPA makes any substantive changes as it finalizes the proposal.
  • Revised Response to Clean Air Act Section 126(b) Petition from New York; 2060-AV04; and Maryland; 2060-AV05. In long-running battles over interstate air pollution, New York and Maryland have complained that upwind states are unfairly polluting their air and asked EPA to do something about it. The Biden EPA will have to respond to recent D.C. Circuit decisions on the issue of “interstate transport” in responding to the downwind states’ requests.

Hazardous Air Pollutant Rules

  • NESHAP: Coal- and Oil-Fired Electric Utility Steam Generating Units — Reconsideration of Supplemental Cost Finding and Residual Risk and Technology Review; 2060-AV12. Over the years, with each political swing, EPA has gone back and forth over whether it is “appropriate and necessary” to regulate electric generating units under Section 112 of the Clean Air Act via what is known as the “Mercury and Air Toxics Standards” (MATS). Under the Trump administration, EPA issued a rule in response to a Supreme Court decision, which directed EPA to consider costs, and in doing so, EPA found the costs of the MATS regulation to significantly outweigh its benefits. Under the Biden EPA, watch for EPA to flip again and perhaps seek to strengthen the standards imposed under MATS as well.
  • Petition to Delist Stationary Combustion Turbines from the List of Categories of Major Sources of Hazardous Air Pollutants; 2060-AU78. In the early 2000s, EPA wrote a formaldehyde emission standard for gas-fired combustion turbines (CTs), but because that standard was based on limited data, EPA immediately stayed the rule, and it never went into effect. In March 2020, EPA determined that even without the standard in place, risks associated with hazardous air pollutants emitted from CTs were acceptable. As a result, industry interests have asked EPA to remove CTs from the hazardous air pollutant program entirely, and EPA’s agenda indicates it will decide whether to grant or deny that request in February 2022.
  • Review of Final Rule Reclassification of Major Sources as Area Sources Under Section 112 of the Clean Air Act; 2060-AV20. For more than two decades, EPA refused to allow sources to avoid hazardous air pollutant standards written for “major” sources by reducing their emissions to below “major” levels after they had already become subject to those standards. This “once in always in” policy was rescinded by the Trump EPA as a way to encourage sources to voluntarily reduce emissions. The Biden EPA will likely return to the “once in always in” approach, which could leave in legal limbo any facilities that took limits to drop below the major source thresholds in reliance on the Trump EPA rule.
  • National Emission Standards for Hazardous Air Pollutants for Major Sources — Industrial, Commercial, and Institutional Boilers and Process Heaters — Amendments; 2060-AU20. The long saga of “boiler MACT” will continue under the Biden EPA, as the agency seeks to respond to yet another court decision remanding the rule. A proposal was issued under the Trump EPA to tighten the standards in accordance with that decision, but it will be up to the Biden EPA to finalize it.
  • Other “Risk and Technology Reviews.” EPA remains subject to court orders to review its hazardous air pollutant standards every eight years, as required by the Clean Air Act, to ensure any risks that remain following promulgation of initial source-category standards are acceptable, or that the standards are lowered to eliminate any “residual risk.” According to the regulatory agenda, next up will be the following industries:
    • oil and natural gas sector (2060-AS13),
    • primary copper smelting (2060-AU63),coke ovens (2060-AV19),
    • mercury cell chlor-alkali plants (2060-AU59),
    • cyanide chemicals manufacturing (2060-AU64),
    • primary magnesium refining (2060-AU65),
    • carbon black production (2060-AU66), and
    • refractory products manufacturing (2060-AU67).

Not (Yet) on the Regulatory Agenda

  • Particulate Matter National Ambient Air Quality Standards. In December 2020, the Trump EPA decided to retain the existing ambient standards for PM5, but the Biden EPA has already announced that it will reconsider that decision and may instead seek to tighten the standard. EPA’s decision on whether to once again move the goal posts on PM2.5 will be closely watched, as it could have significant ramifications nationwide.
  • Ozone National Ambient Air Quality Standard. The Trump EPA also chose to keep the current ozone standard in place, but the Biden EPA is expected to review the standard and may seek to tighten it. No announcement has been made yet, but that could change any day.

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