Environmental Law And Policy

Environmental law and policy are constantly changing. New environmental regulations are issued almost every day. Court opinions regarding those regulations are issued almost as frequently. And on top of this, agencies continue to issue new guidance and policies interpreting the changing regulations. Keeping track of these changes and the potential implications is a formidable task. At Troutman Pepper, we have a large team of highly experienced environmental lawyers that specialize in a wide variety of environmental matters. We are tracking important environmental law and policy developments and posting about them here, along with our initial impressions as to what they could mean for the businesses to which they apply. Our mission is to help our clients, contacts, and friends stay current on the latest environmental laws and policies that will impact their businesses in the following areas:

Endangered Species

EPA Finalizes Clean Air Act Rule Allowing Some Major Sources to Re-Classify as Area Sources

On October 1, 2020, the Environmental Protection Agency (“EPA”) issued its final rule allowing for a source classified as a “major source” of hazardous air pollutants (“HAP”) under section 112(a) of the Clean Air Act to reclassify as an “area source.” A “major source” emits or has the “potential to emit” 10 tons per year or more of a single HAP or 25 tons per year or more of a combination of HAP. The EPA had long-followed the “once-in-always-in” policy, under which a facility that qualified as a major source of HAPs as of the “first substantive compliance date” of the applicable Maximum Achievable Control Technology (“MACT”) standard was permanently subject to that standard, even if the source was later able to reduce its emissions below major source applicability thresholds. With the final rule, branded as the “Major MACT to Area” (“MM2A”), EPA codified the withdrawal of the “once-in-always” policy and provided the requirements that apply to major sources choosing to reclassify, including reclassification that occurs after the first substantive compliance date of an applicable MACT standard.

EPA Releases New Guidance on Startup, Shutdown, and Malfunction Provisions in State Regulations

State strategies for regulating air emissions during periods of startup, shutdown, and malfunction (SSM) have been a controversial topic in recent years. Air emissions can be higher during periods of SSM because emitting units are not in steady-state operation and some pollution control devices cannot be operated effectively or safely during such events. Since most air emission limitations are not crafted to cover periods when emission units are not operating normally, many states have adopted regulations in their Clean Air Act-required State Implementation Plans (SIPs) to provide compliance flexibility for sources during periods of SSM. These regulations typically take the form of either automatic or discretionary exemptions for emissions that exceed otherwise applicable limitations, or affirmative defenses to liability or penalties for violations asserted by enforcement authorities or private citizens.

In 2015, the Obama-administration EPA issued guidance finding that exemptions and affirmative defense provisions for SSM-related exceedances were inconsistent with the Clean Air Act since these provisions prevented emission limitations from applying on a “continuous” basis. EPA grounded its guidance in two D.C. Circuit decisions addressing SSM-related issues arising under Section 112 of the Clean Air Act, extending the court’s reasoning to find that state SSM regulations adopted under Section 110 of the Act were impermissible. Based on the guidance, EPA issued a “SIP call” requiring dozens of states and local jurisdictions to revise their SIPs by either eliminating their SSM provisions or modifying them to be consistent with the Agency’s new policy. The 2015 SIP call was promptly challenged in the D.C. Circuit, but had not yet been decided when the Trump administration took office in 2017 and requested the court to put the case on hold while it reconsidered the SIP call.