Legal & Regulatory

[UPDATED] EPA Sets Schedules for Long List of Power Plant Regulatory Actions 

The U.S. Environmental Protection Agency (EPA) will act on a spate of power plant rules over the next year, its newly released agenda of regulatory and deregulatory actions shows.

The May 23-released “Spring 2019 Agenda of Regulatory and Deregulatory Actions” lists 35 new actions, along with 57 actions that it considers “deregulatory.” The list includes new rules governing coal ash, new insights and timelines for final effluent limitations guidelines and mercury rules, action on “boiler MACT” rules, monitoring and record-keeping clarifications for the mercury and other rules, changes to New Source Review permitting, and an amendment to a rule governing stationary combustion turbines at power plants. 


First time on agenda

Proposed rule

Final rule

Effluent Limitations Guidelines (ELG) and Standards

June 2019

August 2020

Rules Governing Definition of “Waters of the U.S.”

July 2017 (supplemental in July 2018)/February 2019

August 2019/December 2019

Coal ash: Amendments to the National Minimum Criteria (Phase 2)

July 2019

December 2019

Coal ash: Federal Coal Combustion Residuals Permitting Program


July 2019

May 2020

Coal ash: Revision of cease receipt of waste deadline for CCR surface impoundments; response to court


July 2019

December 2019

Coal ash: Alternative demonstration for unlined surface impoundments/ request for comment on legacy units; response to court


July 2019

December 2019

MATS: Reconsideration of Supplemental Cost Finding and Residual Risk and Technology Review

February 2019

November 2019

MATS technical corrections, reporting revisions, clarifications

November 2019

NESHAP:Stationary Combustion Turbine Residual Risk and Technology Review

April 2019 (comment period ends on May 28)

January 2020

(Boiler MACT):NESHAP: Industrial, Commercial, and Institutional Boilers and Process Heaters Amendments 

September 2019

Review of the National Ambient Air Quality Standards for Particulate Matter 

March 2020

Project emissions accounting under PSD and non attainment NSR

July 2019

Standards of Performance for Stationary Compression Ignition (CI) Internal Combustion Engines Amendments

June 2019

Direct final rule, June 2019

Technical Revisions to the Greenhouse Gas Reporting Rule 

December 2019

December 2020

Clean Air Act Benefit-Cost Reforms 


December 2019

Revisions to the Petition Provisions of the Title V Permitting Program

August 2016

August 2019

Financial responsibility requirements for power sector

July 2019

December 2020

Accidental release prevention requirements

May 2018

August 2019

General revisions to emissions monitoring and reporting requirements for fossil generators

November 2019

April 2020

The agenda shows “continued progress in reducing regulatory burden” envisioned by President Trump’s proposed regulatory reforms, the agency said in a statement. The actions will be overseen by newly confirmed EPA administrator Andrew Wheeler, who has held the role in an acting capacity since July 5, after Scott Pruitt, the Trump administration’s first EPA head, resigned amid scrutiny for questionable ethical decisions involving his office. During his confirmation hearings, Wheeler said if he were confirmed as EPA administrator, he would continue to work to advance President Trump’s regulatory reform agenda.

“In 2018, EPA finalized 13 major deregulatory actions, saving Americans roughly $1.8 billion in regulatory costs. To date, under President Trump, EPA has finalized 33 major deregulatory actions saving Americans almost $2 billion,” he noted. 

Rules Affecting ELG, MATS, WOTUS, and Particulate Matter

Effluent Limitations Guidelines (ELG) and Standards for the Steam Electric Power Generating Point Source Category. The EPA could revise the 2015 Best Available Technology (BAT)  effluent limitations and pretreatment standards for bottom ash transport water and flue gas desulfurization wastewater at existing sources. The EPA will issue a notice of the proposed rule-making (NPRM) in June 2019, and a final rule by August 2020. The agency deems the rule “economically significant.” A federal court ruling that vacated key portions of the 2015 rule added a dramatic new element of uncertainty in timing of the rule, which the Trump administration had previously said it expected to finalize by December 2019. The power sector has been preparing to comply with the 2015 ELG rule, which sought to amend an ELG rule last updated in 1982 by setting the first federal limits on levels of toxic metals in wastewater that can be discharged from existing coal, gas, oil, and nuclear plants. 

Reconsideration of Mercury and Air Toxics Standards (MATS) Cost Finding and Residual Risk and Technology Review (RTR). In December 2018, the EPA determined that because compliance costs to coal- and oil-fired power plants for MATS—formally known as “NESHAP: Coal- and Oil-Fired Electric Utility Steam Generating Units”—far exceed quantifiable benefits to regulating hazardous air pollutant (HAP) emissions, the Trump administration proposed it is not “appropriate and necessary” to regulate HAP emissions from power plants under Section 112 of the Clean Air Act. This action will take final action related to two of the three distinct actions related to the proposal (which was published in February 2019, delayed by the month-long government shutdown). First, the EPA proposed to revise its response to the Supreme Court’s 2016 decision in Michigan v. EPA. The EPA also proposed results of the residual RTR; it concluded that residual risks due to emissions of HAPs from the coal- and oil-fired EGU source category are “acceptable” and that current standards provide an ample margin of safety to protect public health. Significantly, it didn’t identify new developments in HAP emission controls that could achieve additional cost-effective reductions—which is why it concluded no revisions to the MATS rule itself were needed. The final rule is expected in November 2019. 

Final action on another MATS rule governing acid gas standards for some Eastern bituminous coal refuse–fired units is expected sooner, by June 2019. “Specifically, this rulemaking will address EPA’s final decision regarding establishing such a subcategory and acid gas HAP emission standards after review of the public comments,” the EPA said. 

Mercury and Air Toxics Standards (MATS) for Power Plants Technical Corrections, Electronic Reporting Revisions, and Clarifications. The action proposes to revise the 2012 rule to clarify and provide flexibility to some monitoring, recordkeeping, and reporting provisions in the final rule. A proposed rule is expected in November 2019. 

Review of the National Ambient Air Quality Standards (NAAQS) for Particulate Matter. As required by the Clean Air Act, the EPA must set NAAQS for particulate matter (PM) and five other pollutants and periodically review the standards. In January 2013, the EPA published a final rule tightening the NAAQS for fine particulate matter (PM2.5) to 12.0 micrograms per cubic meter (μg/m3) but declared it would not finalize a proposal to update separate secondary PM2.5 standards. The EPA has since been preparing an integrated review plan and other documents, which it says will inform a “decision” as to whether it will retain or revise the standards. A proposed rule is expected in March 2020.

Definition of “Waters of the United States”—Recodification of Preexisting Rule. The Trump administration in February 2017 moved to rescind or replace the Obama administration’s 2015 definition of “waters of the U.S.” In December 2018, the EPA proposed a new definition that could exempt groundwater and ditches from regulation under the Clean Water Act (CWA). The EPA’s agenda suggests a final rule recodifiying the existing rule will come in August 2019. It will also formally issue a revised definition in December 2019. 

NESHAP for Combustion Turbines and Boiler MACT

National Emission Standards for Hazardous Air Pollutants (NESHAP): Stationary Combustion Turbine Residual Risk and Technology Review. The Stationary Combustion Turbine NESHAP, subpart YYYY, which the EPA promulgated in March 2004, establishes emission standards for hazardous air pollutants (HAPs) at stationary combustion turbines at power plants and other facilities based on maximum achievable control technology (MACT).  HAPs include: formaldehyde, toluene, benzene, and acetaldehyde. Under this action—which is long overdue, and the EPA is acting on a court order that requires it to complete final action by March 2020—the EPA will review risk requirements to determine whether they provide ample safety to protect public health. 

For years, industry has been working to get the EPA to delist natural gas subcategories based on low risk. This April, the EPA proposed to amend the rule, including to revise requirements for periods of startup, shutdown, and malfunction to be consistent with recent court decisions. The proposed rule also seeks to remove a stay for new gas-fired combustion turbines. The comment period will end on May 28, 2019 and the final rule could come in January 2020.

National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters Amendments. The so-called “boiler MACT” rules promulgated in January 2013 has been legally challenged. In July 2016, a court vacated the maximum achievable control technology (MACT) standards for all subcategories that would have been affected. The court remanded the rule to the EPA to adequately explain how carbon monoxide acts as a reasonable surrogate for organic hazardous air pollutants. In September 2016, the EPA petitioned the court asking that the MACT standards be remanded without vacatur, and in December 2016, the court granted the EPA’s request and remanded without vacating the MACT standards. In November 2015, the EPA finalized its decision on issues for which it granted reconsideration. Environmental groups filed for judicial review on the reconsideration issues. The court issued its decision on March 16, 2018, which remanded for further explanation the revised 130 parts per million carbon monoxide emission limits. “This proposal would address the issues that were remanded in the two court decisions and give an opportunity for public comment on the EPA’s responses,” the EPA said. A proposed rule is expected in September 2019. 

Standards of Performance for Stationary Compression Ignition (CI) Internal Combustion Engines Amendments. The EPA says this deregulatory action will amend rules affecting stationary compression ignition internal combustion engines—engines in which fuel is injected into the combustion chamber is ignited by the heat of compressed gases inside the cylinder (essentially diesel engines)—to provide regulatory relief for owners in remote areas in Alaska. In order to meet emissions requirements, generators must retrofit Tier 3 engines and retrofit them with a diesel particulate filter, the EPA says. A proposed rule and direct final rule will come in June 2019. 

EPA to Revamp Coal Ash Rule Through Multiple Rules

Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residues From Electric Utilities: Amendments to the National Minimum Criteria (Phase 2).  Since a final rule governing disposal of coal combustion residuals (CCR) from power plants was signed in April 2015, the EPA has grappled with legal challenges. In July 2016, the EPA extended compliance deadlines. In the Trump era, responding to utility petitions that urged the EPA to reconsider parts of the rule, the agency in July 2018 signed the first of two rules to overhaul the final 2015 rule and better align it to potential revisions to the ELGs.

The Phase 1 rule weakened requirements for managing coal ash storage areas, allows states to suspend groundwater monitoring if no leaks are detected, and it delays pond closure deadlines until October 2020—about 18 more months compared to the 2015 rule. As part of the second phase, the EPA will propose additional “targeted” changes to the 2015 CCR rule, including actions remanded back to the agency by the D.C. Circuit in August 2018. The court struck down the provisions of the 2015 rule that allowed unlined and clay-lined impoundments to receive coal ash and exempted inactive impoundments, finding that EPA’s approach “does not address the identified health and environmental harms documented in the record.” The EPA sent Phase 2 to the White House Office of Management and Budget (OMB) for review on May 7. The proposal should be issued in July 2019, the agenda says. A final rule will come in December 2019. 

Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals from Electric Utilities; Revision of Cease Receipt of Waste Deadline for CCR Surface Impoundments; Response to Court. Making its appearance in the agenda for the first time, this rule seeks to address issues stemming from the D.C. Circuit’s August 2018 court decision in  Utility Solid Waste Activities Group, et al v. EPA, which came a month after the EPA’s finalization of the Phase 1 CCR rule. Environmental groups challenged the Phase 1 rule, and in March 2019, the D.C. District Court allowed the EPA to voluntarily remand the rule without vacatur. Among issues the rule addresses is when owners and operators of CCR surface impoundments should cease the receipt of CCR and initiate closure. The new rule extends the  cease receipt deadline from October 2018 to October 2020. Abiding by a court deadline that forces the agency to finalize a new rule by December 2019, the EPA expects to propose a rule by July 2019, with final action in December. 

Federal Coal Combustion Residuals Permitting Program. After Congress passed the Water Infrastructure Improvements for the Nation (WIIN) Act in 2016—effectively giving the EPA new CCR enforcement authority under amendments to the Resource Conservation and Recovery Act (RCRA)—the EPA designed a new CCR regulatory structure under which states may seek approval from the agency to operate a permitting program that would regulate CCR facilities within their state. This rule will establish the permitting program. “The potentially regulated universe is limited to facilities with CCR disposal units subject to regulation under 40 CFR part 257 subpart D, which are located on tribal lands and in nonparticipating states. The remaining CCR facilities would be regulated by the approved state program and would not be subject to federal permitting requirements,” the EPA says. A proposed rule is expected in July 2019, and a final rule could come in May 2020. This is a new rule on the unified agenda. 

Hazardous and Solid Waste Management System; Disposal of CCR; Alternative Demonstration for Unlined Surface Impoundments / Request for Comment on Legacy Units; Response to Court Part B. Responding to the August 2018 D.C. Circuit decision, this rule—also making a first appearance in the agenda—would address a provision in that court decision and provide a mechanism where unlined surface impoundments meeting strict criteria would be allowed to continue to operate. This rule will also address a necessary modification to the timeline of closure by removal, and it requests comments on inactive units at inactive facilities also known as “legacy units.” A proposed rule is expected in July 2019, with a final rule in December 2019. 

Rules for New Project Permitting, General Emissions Monitoring and Reporting, Financial Requirements, Accidental Releases

Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR): Project Emissions Accounting. Under the current NSR pre-construction permitting program, sources undergoing modifications must determine whether their modification is considered a major modification, which would make them subject to NSR pre-construction permitting—a factor that prolongs project timelines and introduces uncertainty. A source owner determines if its source is undergoing a major modification under NSR using a two-step applicability test. In the first step, they determine if there is a “significant emission increase” of a regulated NSR pollutant from the proposed modification. In the second step, they determine if there is a “significant net emission increase” of that pollutant. “In this action, we are proposing the consideration of emissions increases and decreases from a modification in Step 1 of the NSR major modification applicability test for all unit types (i.e., new, existing, and hybrid units),” the EPA says. A proposed rule is expected in July 2019.  In a separate rule, due in June 2019, the EPA will also seek public comment on correction of “inadvertent errors” to NSR rules. 

General Revisions to Emissions Monitoring and Reporting Requirements for Fossil Fuel-Fired Electric Generating Units. This proposed rule would revise the definitions, monitoring, record-keeping, and reporting requirements associated with the allowance trading programs—the Acid Rain and Cross State Air Pollution Rule, for example. The proposed rule would also update or remove other provisions of the Acid Rain Program that applied only in earlier phases of the program. A proposed rule will be issued in November 2019, with a final rule in April 2020.

Financial Responsibility Requirements Under CERCLA Section 108(b) for the Electric Power Generation, Transmission, and Distribution Industry. Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, establishes certain authorities concerning financial responsibility requirements. The EPA in January 2010 identified classes of facilities, including those in the power generation, transmission, and distribution sector, as those for which could develop, as necessary, financial responsibility requirements under CERCLA 108(b) to cover costs associated with releases or threatened releases of hazardous substances from their facilities. In January 2017, the EPA made a determination to proceed with these rulemakings. A proposed rule for the power sector will come in July 2019, and a final rule in December 2020. 

Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Reconsideration of Amendments. The agency will reconsider a January 2017 rule that amends the risk management program rules under the Clean Air Act. Changes proposed in May 2018 will rescind almost all requirements added to accident prevention provisions programs, including for third-party compliance audits, safer technology, and alternative analysis. It also scraps requirements that hazard reviews includes findings from incident investigations, as well as employee training requirements. A final rule is expected in August 2019. 

Other Significant Reforms

Clean Air Act Benefit-Cost Reforms. Another new rule that the EPA will proposed in December 2019 seeks to provide the public with a better understanding on how the EPA evaluates benefits and costs when developing Clean Air Act regulatory actions. While details of the rule are sparse, the EPA notes it has conducted four major studies about benefits and costs of the Clean Air Act. 

Revisions to the Petition Provisions of the Title V Permitting Program. A final rule, expected in August 2019, will identify requirements for and provide guidance on the substance and format of petitions submitted to the agency under the Title V of the Clean Air Act. The national permit program seeks to unify various control requirements in a comprehensive document, but as the EPA noted in an August 2016 proposed rule, it is often complex. The rule aims to increase stakeholder access to and understanding of the petition process, as well as increase the efficiency of the agency’s response to petitions received. 

Sonal Patel is a POWER associate editor (@sonalcpatel, @POWERmagazine)

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