Winston’s Environmental Law Update

The U.S. Environmental Protection Agency (EPA) recently proposed three key actions to further regulate ethylene oxide (EtO) under the Clean Air Act and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). EPA’s latest proposals include (1) stricter national emission standards for hazardous air pollutants (NESHAP) for commercial sterilization facilities, (2) new Clean Air Act rules for plants that make synthetic organic chemicals and plants that make a variety of polymers and resins, and (3) more stringent standards for workplaces handling EtO. We provide an overview of these proposed actions and what they may mean for your business.

The Biden Administration has started 2023 with a jammed pipeline of major regulatory actions relating to climate and other major environmental matters. For those interested in participating in the public comment processes, the clock is ticking. Here is a rundown of impending deadlines for public comment for some of the most significant rulemakings from the EPA and other federal agencies.

The Supreme Court held the Environmental Protection Agency cannot establish a standard of performance for existing electric generating sources under Section 111(d) of the Clean Air Act based on a system of generation shifting like that developed for the Clean Power Plan. As a result, EPA’s Affordable Clean Energy Rule of 2019 could come back in effect…for now.

EPA is proposing to impose stringent new “Good Neighbor” regulations under the Clean Air Act. These changes are proposed to help downwind states meet the 2015 Ozone National Ambient Air Quality Standards (“NAAQS”). These strengthened controls on nitrogen oxide (“NO_x”) emissions will apply to power plants as well as other large industrial facilities located in 26 states. Beyond fossil fuel-fired power plants, EPA is proposing NO_x emissions limitations for facilities in the following industries: pipeline transportation of natural gas; cement and cement product manufacturing; iron and steel mills; ferroalloy manufacturing; glass and glass product manufacturing; chemical manufacturing; petroleum and coal products manufacturing; and pulp, paper, and paperboard mills.

The chemical and health care industries know that more stringent EPA regulation of the manufacture and use of ethylene oxide (EtO) is coming.

On January 19, 2021, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit in a per curiam opinion vacated the Trump Administration’s Affordable Clean Energy Rule (ACE Rule).

Key takeaway: On December 28, 2020, EPA finalized its first greenhouse gas (“GHG”) emission standards that apply to certain new commercial airplanes, including all large passenger jets. The standards are effective on or after January 1, 2028.

On October 1, 2020, the United States Environmental Protection Agency (EPA) issued a final rule under Section 112(a) of the Clean Air Act, ending EPA’s “once-in-always-in” policy governing emissions of hazardous air pollutants (HAPs).

The D.C. Circuit has stayed the EPA’s rollback of methane emissions standards for the oil and gas industry.

On August 13, 2020 the U.S. Environmental Protection Agency (EPA) issued two final rules, completing the rollback of Obama-era methane emissions regulations in the New Source Performance Standards (NSPS) for the Oil and Gas Industry. Issued in response to the March 2017 Executive Order on Promoting Energy Independence and Economic Growth, the EPA’s new rules relax methane gas emissions requirements applicable to various segments of the oil and gas industry. Methane, the primary component of natural gas, is a greenhouse gas.

Under Section 211(v) of the Clean Air Act, EPA was required to complete “a study to determine whether the renewable fuel volumes required by [Section 211(o)] will adversely impact air quality as a result of changes in vehicle and engine emissions of air pollutants.” On May 29, 2020, EPA released its so-called anti-backsliding study, which evaluated two scenarios for calendar year 2016.