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Obama’s EPA Part II – What Can the Regulated Community Expect?


The reelection of President Barack Obama means that EPA is expected to finalize a long list of high profile rules.  Some of these rules had been held up by the agency due to their political sensitivity while others have been in the development pipeline for months.  This article reviews some of the major rules EPA has issued since the November election and other rules EPA is expected to issue in 2013.

GHG Emissions from New Electric Generating Plants.  On March 27, 2012, EPA announced a proposed new rule setting greenhouse gas (GHG) standards for new electric generating plants.  The standards could be met by firing with natural gas, but could not be achieved by coal-fired power plants unless they are equipped with carbon capture and storage, a technology not yet commercially available.  EPA received many comments on the proposed rule and developers of new coal-fired power plants have filed lawsuits challenging the draft rule.  EPA plans to issue a final rule by April 12, 2013.

Boiler MACT.  Under the National Emissions Standards for Hazardous Air Pollutants (NESHAP) program, EPA issues Maximum Achievable Control (MACT) standards for various types of emissions sources.  EPA has been developing MACT standards for mercury and other emissions from industrial boilers and incinerators since 2003.  EPA issued a proposed rule in 2004, which was subsequently vacated by a court.  Under a court-ordered deadline, EPA issued a new rule in March 2011, but EPA quickly said it was reconsidering its own proposal.  EPA issued the final Boiler MACT rule on December 20, 2012.

Utility MACT.  In December 2011, EPA issued the “utility MACT” rule to reduce emissions of hazardous air pollutants (HAPs), including mercury, from new electric generating units.  This rule is also referred to as the Mercury Air Toxics Standard (MATS).  Utilities complained the new rule was too stringent, and EPA agreed to reconsider certain aspects of the rule.  EPA released a proposed revised rule on November 16, 2012 and has told a court it will issue the final revision by March 2013.  Other aspects of the rule are already in effect, and the rule is being challenged in litigation.

RICE MACT.  On January 14, 2013, Administrator Jackson signed a final rule amending the widely-applicable stationary internal combustion engine emission and performance standards set forth in 40 CFR Part 63, Subpart ZZZZ and 40 CFR Part 60, Subparts IIII and JJJJ to provide limited relief from certain requirements applicable to owners and operators facing upcoming 2013 compliance deadlines under the standards.  Of significance to many sources, EPA declined to finalize its May 2012 proposal that would have allowed existing emergency engines located at area sources of hazardous air pollutants to include peak shaving in the 50 hours of non-emergency operation allowed for such engines until April 2017.  However, in consideration of the short time between the final rule and the May/October 2013 compliance dates for those engines, the EPA did finalize an amendment allowing those engines to be used for limited peak shaving or non-emergency demand response until May 3, 2014 where certain conditions are met.

Ozone NAAQS.  In 2008, EPA set a National Ambient Air Quality Standard (NAAQS) for ozone of 75 parts per billion (ppb).  EPA launched a review of the standard when President Obama took office.  In 2011, EPA’s Clean Air Scientific Advisory Committee reported that the standard did not fully protect public health.  On September 2, 2011, EPA was on the verge of tightening the standard, but Obama directed EPA to conduct further studies before doing so, due largely to concerns about the economic impacts of tightening the standard.  EPA is conducting further studies and is scheduled to issue new standards in 2014.  Meanwhile, environmental and health groups and several states have challenged the 75 ppb standard in federal court arguing that it is too lenient to protect public health.  Oral argument has been heard in that case and a possible outcome is that EPA could be put under a schedule to issue a revised standard earlier than July 2014.

Particulate Matter NAAQS.  On December 14, 2012, EPA finalized an update to the NAAQS for fine particles (PM2.5) by setting the annual health standard (primary standard) at 12.0 µg/m3, replacing the existing annual standard (15.0 µg/m3,), which was set in 1997.  At the same time, EPA retained the existing 24-hour health standard (primary standard) for PM2.5 at 35 µg/m3.  EPA also retained the existing 24-hour standards for coarse particles (PM10) for health and environmental effects (primary and secondary standards) at a 150 ug/m3.

Cross State Air Pollution Rule.  The Cross State Air Pollution Rule (CSAPR) was issued in August 2011 to address sulfur dioxide and nitrogen oxide pollution from stationary sources in Eastern and Midwestern states.  The D.C. Circuit Court invalidated the rule in August 2012, leaving the Clean Air Interstate Rule (CAIR) in place.  The same court previously invalidated CAIR, but left it in place in 2008.  EPA is seeking en banc review of the new decision relating to CSAPR.  However, if EPA does not prevail, EPA will have to develop a replacement rule.

Coal Ash.  Since an embankment holding back coal ash at a TVA plant in Tennessee ruptured in 2008, EPA has been giving considerable attention to the regulation of coal ash.  In June 2010, EPA announced several possible regulatory approaches.  Under one approach, coal ash would become a “special waste” under the Resource Conservation and Recovery Act (RCRA), which would subject it to additional handling requirements.  EPA sent this proposal to the Office of Management and Budget for regulatory review in March 2012.  However, in October 2012, EPA announced that it would complete revisions of the toxicity characteristics and toxicity characteristic leaching procedure regulations due to the existence of new data.  A new regulation is expected in late 2013.

Wetlands.  After a series of Supreme Court decisions, most importantly Rapanos v. United States, there has been considerable confusion over the extent of federal authority regarding isolated waters, intermittent streams, and certain other wet areas.  EPA and the U.S. Army Corps of Engineers have been working on guidance to clarify which of these lands are federally regulated.  Guidance is expected to be issued in 2013.

Cooling Water Intake Structures.  EPA is required under a settlement with environmental organizations to issue a final rule under Section 316(b) of the Clean Water Act by June 27, 2013.

Hydraulic Fracturing.  EPA is conducting a major study on the potential impacts of hydraulic fracturing on drinking water resources.  EPA issued a progress report in December 2012.  A final draft report is expected in 2014.  This report could serve as the basis for possible future restrictions on hydraulic fracturing.

To view a complete PDF of the November/December 2012 issue of the Environmental Letter, click HERE.

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