What is the U.S. EPA Air Office Working on These Days?

Update: On June 26, 2019, U.S. EPA Assistant Administrator Bill Wehrum has stepped down from his role in the Office of Air and Radiation.  The regulated community may see delays in rulemaking until a permanent replacement is named.  Please check ALL4’s website for regular updates.

In the early days of the current U.S. EPA administration, we began hearing that U.S. EPA was going to reform the New Source Review (NSR) air construction permitting process.  U.S. EPA gathered thousands of comments on how to streamline the air construction permitting process and what their air regulatory reform priorities should be.  These priorities, particularly around NSR permitting, were widely anticipated because the NSR permitting process impacts the most strategic, capital intensive, and time sensitive projects that facilities undertake.  We heard promises of small NSR changes via memo, guidance, and rulemakings that would come out at a frequency of one per month.  The assistant administrator for the U.S. EPA Office of air and Radiation, Bill Wehrum, used a baseball analogy to promise a series of “singles and doubles” but no home runs. In other words, small-scale changes that could be implemented quickly rather than sweeping reforms that would take years to complete.

For a while we did see actions about once per month, including projected actual emissions, project emissions accounting, source reactivation, and a few items related to aggregation. The following NSR highlights occurred in 2018:

• Ten items were added to U.S. EPA’s NSR Policy and Guidance Document Index,
• U.S. EPA finalized the 2010 project aggregation reconsideration action,
• U.S. EPA released a draft guidance document that proposed a small revision to its ambient air policy for comment, and
• U.S. EPA released a draft guidance on adjacency for comment.

However, in 2019 we seem to be in a rain delay in terms of permitting reform actions.  We are waiting on the Office of Management and Budget (OMB) to finish its review of a proposed project emissions accounting rulemaking and a rulemaking to repeal the once-in always-in MACT policy, and we are waiting on U.S. EPA to release final ambient air and adjacency guidance memos.  Those items may be the only further permitting-related actions we see until the fall of 2019.

Why the rain delay?  U.S. EPA is likely learning from environmental groups’ legal pushback to previous policy changes (e.g., the legal challenge to the project emissions accounting guidance) and taking their time to think through the appropriate mechanisms to effect change and also to bolster the record supporting their reforms. There have been some leadership changes within the agency that may have slowed progress or re-ordered priorities. Finally, U.S. EPA has realized that for some actions they would like to take, rulemaking is preferable to guidance.  Although a rulemaking action takes longer to complete than issuance of a guidance document, it results in more consistent implementation across state and local agencies.

What NSR reform related actions are we likely to see next?  U.S. EPA has indicated to multiple audiences that the next items we should see are:  guidance on “begin actual construction” (e.g., to allow additional site preparation activities prior to issuance of a PSD permit); guidance related to routine maintenance, repair, and replacement (such as clarification that routine means routine within the industry, not just at the plant or within a company); guidance on Plantwide Applicability Limits (PALs) (anticipated to include language to lessen the chance of an agency automatically reducing PAL levels closer to recent actual emission levels upon renewal of the PAL); and guidance on properly estimating demand growth associated emissions and emissions that could have been accommodated during the baseline period for PSD applicability.  It could be football season before we see these next NSR reform items.

What else is U.S. EPA working on?  They are hard at work on 26 Maximum Achievable Control Technology (MACT) risk and technology review (RTR) rules that are under a court ordered deadline to go final in 2020, and another 9 that must be finalized in 2021.  This year we will see quite a few RTR rule proposals that will impact the chemical industry, such as the organic liquids distribution (OLD) MACT, the Miscellaneous Organic National Emission Standards for Hazardous Air Pollutants [(NESHAP) MON], the Ethylene MACT, and Miscellaneous Coatings Manufacturing.  We can anticipate several changes to these rules based on the recent work U.S. EPA did to revise the Refinery MACT (e.g., for flares, pressure relief devices, leaks, and startup/shutdown), but there will also be some tightening of requirements for processes in ethylene oxide (EO) service, due to heightened concern about risk from emissions of that compound.  U.S. EPA has established a website dedicated to providing the latest information on its work to address risk from EO emissions, and has committed to re-examining the RTR for ethylene oxide sterilizers that it completed in 2006 prior to the revision of the risk factor for EO. We also know from the most recent regulatory agenda that U.S. EPA is also working on several other items, such as a reconsideration of the polyvinyl chloride (PVC) MACT rule, revisions to the Boiler MACT rule (based on the outcome of litigation), and several National Ambient Air Quality Standards (NAAQS)-related obligations.  The World Series will likely have been decided before we see some of these items.

It could be that all the other regulatory items that U.S. EPA must complete for upper management approval are contributing to the NSR reform rain delay.  Although we may be in an early-summer lull, rest assured, there will be plenty of reading to do during the second half of the year.  For updates, you can contact Amy Marshall at 984-777-3073 or amarshall@all4inc.com or Colin McCall at 678-460-0324 x206 or cmccall@all4inc.com.