Despite the waning days of the administration, EPA continues to promulgate significant regulations. On August 3, 2016, EPA published changes to the regional consistency rules at 40 CFR 56 that require EPA regulations and policies to be consistently applied nationwide. 81 Fed. Reg. 51102 (August 3, 2016). Pursuant to a finding by the D.C. Circuit, when EPA responded to an adverse federal court of appeals decision in one judicial circuit, it was required to apply the change nationwide. EPA has responded by revising its regulations to allow a “narrow exception” by which adverse decisions only from the U. S. Supreme Court and the United States Court of Appeals for the D.C. Circuit Court that arise from challenges to nationally applicable regulations or final actions will apply uniformly. Adverse decisions from other federal courts of appeals will apply only in the states where the deciding court has jurisdiction. Regional offices will no longer have to request concurrence from EPA headquarters to inconsistently apply EPA national policy if the inconsistent application is required to act in accordance with a federal court decision. The new EPA rule has been challenged in the U. S. Court of Appeals for the D.C. Circuit.
On August 24, 2016, EPA published a final rule setting requirements air agencies must meet to implement the current and future NAAQS for PM2.5, including specific SIP requirements for non-attainment areas. 81 Fed. Reg 58010 (August 24, 2016). On the same day, EPA published proposed revisions to the procedures for filing petitions for objections to Title V permits. According to EPA the proposed revisions would streamline and clarify the submission and review process in five ways: 1) clarify how petitions are to be submitted; 2) describe the expected format and content of petitions; 3) clarify that permitting authorities are required to respond to public comments during the public comment period and provide the comments and response to EPA for its 45-day review period; 4) provide recommended practices for stakeholders to assure EPA has a complete record; and 5) provide information and EPA’s interpretation of steps to be taken after an EPA objection is granted. Comments will be taken on the proposed rule until October 24, 2016. 81 Fed. Reg. 57822 (August 24, 2016).
On September 14, 2016, EPA issued a final decision regarding reconsideration of certain aspects of the NESHAP for area sources of industrial, commercial and institutional boilers. The decision includes retention of the subcategory for limited use boilers and technical corrections. Also included is removal of the affirmative defense for malfunction events. 81 Fed. Reg. 63112 (September 14, 2016). On the same day, EPA published notice of the availability of units eligible for allocation of emission allowances for the Cross State Air Pollution Rule (CSAPR). 81 Fed. Reg. 63156 (September 14, 2016).
On October 3, 2016, EPA released a final rule regarding the process states and EPA will use when determining whether to include or exclude air quality monitoring data influenced by an “exceptional event,” such as wildfires, in the data set used for regulatory decisions regarding the ozone NAAQS. 81 Fed. Reg. 68216 (October 3, 2016).
Along with the rule, EPA issued a guidance document entitled Guidance on the Preparation of Exceptional Events “Demonstrations for Wildfire Events that May Influence Ozone Concentrations.” The guidance document can be found at https://www.epa.gov/sites/production/files/2016-09/documents/exceptional_events_guidance_9-16-16_final.pdf.
EPA has said the new rule could be beneficial to states having difficulty meeting the new 70 ppb NAAQS ozone standard issued in October 2015 by streamlining the process for determining events that qualify. However, the rule has been criticized as too restrictive to adequately address contributions to background ozone that are outside of regulatory control, especially in western states.
Also on October 3, 2016, EPA published proposed revisions to the PSD and Title V GHG permitting regulations and established a significant emissions rate (SER) for GHG emissions under the PSD program. 81 Fed. Reg 68110 (October 3, 2016). The rule revisions include definition changes, changes to plant-wide applicability limitations and other changes necessary to ensure that neither the PSD or Title V rules would require a source to obtain a permit solely because the source emits or has the potential to emit GHGs above applicable thresholds. These changes are in response to the 2014 U. S. Supreme Court and United States Court of Appeals for the D. C. Circuit rulings vacating provisions of EPA’s tailoring rule.
In response to the recognition by the Supreme Court of EPA’s authority to set a de minimis levels when requiring BACT requirements in PSD permitting, EPA proposed a GHG SER of 75,000 tpy CO2e. Sources with emissions below this amount would not be required to perform a BACT analysis for GHGs. The public comment period on the proposed rule ends December 2, 2016.
Additional rules are expected through the final months of 2016:
- A final rule to streamline regional haze reduction requirements;
- An update to EPA’s “Guideline on Air Quality Models,” which was sent to the White House for Office of Management and Budget (OMB) review on September 2, 2016;
- Guidance on Title V program and state permit fees; and
- A rule to allow for public notice requirements to be met with online notices rather than printed newspaper notices.