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Regulatory: Numerous EPA regulations coming after election

Some of the most important EPA regulations are about to come down the pike

The Environmental Protection Agency (EPA) did not issue many major new regulations during the year prior to the November 2012, perhaps out of concern that this would give campaign fodder to Republican opponents of stronger environmental regulations. Now that the election is over and President Obama has another four years in office, the EPA is on the verge of issuing or proposing a long list of new regulations.

This column summarizes some of the most important regulations that are expected.

 

Air Pollution

GHG emissions from new electric generating plants: On March 27, the EPA announced proposed new regulations setting GHG standards for new electric generating plants. The standards could be met by modern natural gas-fired plants but not by coal-fired power plants using current technology. EPA plans to issue the final rule by April 2013.

GHG emissions from existing electric generating plants: The EPA has the authority to regulate GHGs from existing plants but has not announced what these standards will look like or when they will be announced. A proposal is likely in the coming year.

Boiler and Utility MACTs: The EPA issues standards for the Maximum Achievable Control Technology (MACT) for various sources of hazardous air pollutants. EPA will shortly issue new MACT standards for mercury and other emissions from industrial boilers and incinerators, and separate standards for new electric generating units.

NAAQS: The EPA is preparing to issue or propose new, tighter National Ambient Air Quality Standards (NAAQS) for ground-level ozone and for fine particulate matter (PM 2.5).

Tier 3 Vehicle and Sulfur Rules: The EPA is considering a set of rules, called the Tier 3 rules, that would reduce the permissible content of sulfur and certain other pollutants in gasoline, and regulate emissions of these pollutants from new motor vehicles and engines.

Cross-State Air Pollution Rule: This was a major rule issued in August 2011 regarding sulfur dioxide and nitrogen oxides pollution from stationary sources in the eastern and Midwestern states. The D.C. Circuit invalidated the rule in August, leaving in effect the Clean Air Interstate Rule, which that court had ruled invalid (but left in place) in 2008. EPA is seeking en banc review of the new decision; if EPA does not prevail here, it will need to go back to the drawing board with these rules.

New Source Performance Standards: The EPA is developing or revising NSPSs for several industrial sectors.


Water

Hydraulic fracturing: The EPA is conducting a major study of the practice of hydraulic fracturing, in view of the concerns that have been expressed over its impacts on water pollution, air pollution, and other areas. A draft report is expected in 2013; if the report finds that hydraulic fracturing leads to significant methane emissions, the EPA restrictions on those emissions could follow. During the campaign President Obama repeatedly expressed his support for this practice, but the EPA is preparing rules that will regulate it.

Cooling Water Intake Structures: The EPA will take final action on this proposed rule under Section 316(b) of the Clean Water Act by July 2013.

Concentrated Animal Feeding Operations (CAFOs): The EPA is revising its rules to expand the universe of regulated CAFOs and to provide more stringent permitting requirements for applications of waste and produced water. The revision is expected in May 2013.

Wetlands: Recent Supreme Court decisions have led to great confusion about the extent of federal authority over isolated waters, intermittent streams and certain other areas. The EPA and the Corps of Engineers have been working on guidance to clarify what land and are not federally regulated.


Hazardous and Solid Waste

Coal ash: Coal-fired power plants generate large quantities of coal ash. For many years there has been ambiguity about the status of this ash under the Resource Conservation and Recovery Act (RCRA). In June 2010, the EPA proposed several possible approaches; under one of them, coal ash would become a “special waste” under RCRA, which would subject it to extremely expensive handling requirements. This became quite controversial. The EPA sent the new coal ash standard to the Office of Management and Budget for regulatory review in March. In October the EPA announced that due to new data and the subsequent need to complete revisions of toxicity characteristics and toxicity characteristic leaching procedure regulations, October 2013 is the earliest the standards will be ready. 

Contributing Author

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Michael Gerrard

Michael B. Gerrard is Andrew Sabin Professor of Professional Practice and Director of the Center for Climate Change Law at Columbia Law School, and Senior...

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