Regulatory "Train Wreck" UpdatesNovember 29, 2011
The Environmental Protection Agency will develop and finalize multiple rules over the next several years that will dramatically impact the air, water, and energy regulatory climate. This unprecedented level of activity will be mirrored at the state level since each federal regulation will trigger the promulgation of state rules to implement the standards. Studies have shown these rules will have an impact on the overall economy, jobs, competitiveness, and energy costs.
Below is a brief summary of of the most recent action on the multitude of rules under promulgation as well as information on expected future actions.
On September 2, 2011 President Obama asked the EPA to withdraw its proposed Ozone standard revision. Later that month, the EPA released a memo announcing that it would begin implementing the 2008 8-hour ozone standard. The Sheboygan area is listed as a marginal nonattainment area in the EPA’s potential classification table.
Wisconsin is currently working on the state’s 1997 8-hour ozone standard redesignation request.
The EPA issued the proposed secondary air standard for sulfur oxides and nitrogen oxides on August 1, 2011. A Final rule will be issued by March 2012.
On July 6, 2011, the EPA finalized the Cross-State Air Pollution Rule (CSAPR). The rule is effective January 1, 2012. The EPA proposed modifications to CSAPR on October 6, 2011 that would increase Wisconsin's CSAPR allowances by a small amount. However, there is still concern that the new standards are unrealistic.
At the same time it released the final CSAPR rule, the EPA also issued a supplemental notice of proposed rulemaking that would require six states — Iowa, Kansas, Michigan, Missouri, Oklahoma, and Wisconsin — to make summertime NOX reductions under the Cross-State Air Pollution Rule ozone-season control program. The EPA expects to finalize the supplemental rule by late fall 2011.
The EPA has proposed standards under the CWA to follow through on a settlement agreement with environmental groups. EPA has agreed to issue regulations that reduce injury and death of aquatic life caused by cooling intake structures. The rule covers about 1,260 existing facilities that withdraw at least 2 million gallons per day of cooling water. The current proposal combines phases II and III into one rule.
On August 18, 2011, the EPA closed the comment period on a proposed rule that sets cooling water intake standards under section 316(b) of the Clean Water Act for all existing power generating facilities and existing manufacturing and industrial facilities. A final rule is expected in 2013.
Water Effluent Limits
In September 2009, EPA decided to proceed with rulemaking in the Steam Electric Power Generating Industry. Effluent guidelines have not been updated since 1982. Proposed rulemaking is expected in July 2012 and Final action by January 2014.
The EPA plans to review current effluent guidelines based on findings from an EPA multi-year study of the Steam Electric Power Generating industry. During the study, EPA reviewed wastewater discharges from power plants and concluded that the 1982 effluent guidelines were outdated and insufficient. EPA’s decision to review the effluent guidelines was announced on September 15, 2009. During the course of the study, EPA identified certain technologies that could significantly reduce pollutant discharge.
On May 18, 2011 the EPA announced it will delay the effective date for the final rules titled "National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters" and "Standards of Performance for New Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units" until the proceedings for judicial review of these rules are completed or the EPA completes its reconsideration of the rules, whichever is earlier.
As part of a filing with the US Court of Appeals for the DC Circuit, the EPA set a schedule for issuing updated air toxics standards for boilers and certain solid waste incinerators. The agency was set to propose standards by the end of October 2011 and issue final standards by the end of April 2012, however, as of November 2011, no new standards have been proposed.
On May 3, 2011 the EPA proposed the first ever standards limiting mercury, acid gases, and other toxic pollution from power plants. The EPA is required by court order to sign the final Utility MACT rule by December 16, 2011.
The Clean Air Act requires compliance with a MACT standard within three years of the promulgation of the standard. There is concern that his deadline will not be met. The rule is currently under OMB review.
On February 24, 2009, the United States Court of Appeals struck down the EPA’s PM2.5 primary annual standard of 15 micrograms per cubic meter (µg/m3) and remanded for reconsideration. The court ruled that the EPA “did not adequately explain why an annual level of 15µg/m3 is sufficient to protect public health while providing an adequate margin of safety from short-term exposures and from morbidity affecting vulnerable subpopulations.”
The OMB is reviewing a proposed rule that addresses the implementation of the 1997 ozone and fine particulate matter national ambient air quality standards (NAAQS).
Coal Combustion Residuals
The EPA is proposing the first-ever national rules regulating the disposal and management of coal combustion residuals (CCR), or coal ash, from coal-fired power plants. Two proposals that reflect different approaches to managing the disposal of coal ash under the Resource Conservation and Recovery Act (RCRA) are outlined in the proposed rule.
The EPA is only considering coal ash generated by electric utilities and independent power plants. The EPA is not proposing to change the May 2000 Regulatory Determination for beneficially used CCRs, or addressing the placement of CCRs in mines, or non-minefill uses of CCRs at coal mine sites. The EPA close the supplemental public comment period on November 14, 2011.
On May 13, 2010, the EPA issued its final rule establishing its approach to regulating GHG emissions from stationary sources under the CAA permitting programs. The final rule sets GHG emissions thresholds that define when permits under the New Source Review Prevention Significant Deterioration (PSD) and Title V Operating Permit programs are required for new and existing industrial facilities. The new rules “tailor” the requirements of these CAA permitting programs to initially limit which facilities will be required to obtain PSD and title V permits. The rule establishes a schedule that will initially focus on the largest sources of GHG emissions, and then expand to other sources. Wisconsin is working on incorporating the federal tailoring rules.
Additional information and studies concerning each of the "Train Wreck" of EPA regulations is available on the Great Lakes Legal Foundation's Regulatory Train Wreck resource page.
This post was authored by GLLF's intern, Lane Oling, a 2L at the University of Wisconsin Law School.