Audit, Compliance and Risk Blog

The Environmental Protection Agency (EPA) has completed a long review, and reaffirmed the primary National Ambient Air Quality Standards (NAAQS) for particulate matter (PM), including those for PM-10 (particulates with an aerodynamic diameter less than or equal to 10 microns) and PM-2.5 (less than or equal to 2.5 microns; also call “fines”). On December 4, EPA announced it would retain the PM standards set in 2013, despite comments presenting recent scientific evidence – including evidence that higher pollution levels exacerbate harm from COVID-19 -- and seeking tighter standards.

During President Trump’s term, the Environmental Protection Agency (EPA) has taken a number of steps to narrow benefit-cost analyses (BCAs), reversing expansive approaches used during the Obama Administration and thereby reducing the calculated benefits of environmental and health regulations. EPA announced what will probably be the last such step on December 4, by adopting a new Part 83 in Title 40 of the Code of Federal Regulations (CFR) entitled “Increasing Consistency and Transparency in Considering Benefits and Costs in Clean Air Act Rulemaking Process.” (I wrote about less formal guidance in a May 2019 memorandum from EPA Administrator Wheeler to his Assistant Administrators HERE.)

The Clean Air Act (CAA) directs the Environmental Protection Agency (EPA) to define “hazardous air pollutants (HAPs)” that may pose acute health hazards, and to impose regulations to reduce those hazards. EPA requires permits for “major sources” of HAPs based on “Maximum Achievable Control Technologies (MACT),” and lesser controls for non-major “area sources.” During President Trump’s term, EPA has pursued several initiatives to make it easier for sources to reclassify from “major” to “area” in order to reduce their regulatory responsibilities.

When are changes to an existing system so extensive that they produce a “new” system? This question is conceptually important in any evolving organization, and can have important regulatory consequences if requirements for “existing” systems are substantially different than those for “new” systems. Emissions regulations under the Clean Air Act (CAA) contain many such situations, and on October 22 the US Environmental Protection Agency (EPA) adopted changes to the “project emissions accounting” it uses to decide whether modifications to an existing major source are so extensive as to trigger preconstruction New Source Review (NSR) requirements. This revision codifies into regulations a policy changed announced in 2018.

I’ve written numerous times in this space about specific efforts by the Trump administration to reduce environmental regulation and enforcement. A new study from the University of Michigan Law School quantifies reductions in the administration’s criminal enforcement levels. The report is part of the school’s “Environmental Crimes Project,” and includes the first two years of the Trump Administration as the latest in a 14-year series of federal environmental enforcement data. Readers should note that federal criminal environmental enforcement is brought by the US Department of Justice (DOJ) on behalf of the US Environmental Protection Agency (EPA); EPA and delegated state agencies bring their own civil cases, and most state criminal enforcement is brought by state prosecutors on behalf of state regulatory agencies (I summarized agency enforcement in the first year of the Trump administration HERE).

In 1987, California adopted the Air Toxics “Hot Spots” Information and Assessment Act, responding to increasing concern over toxics in the air (AB 2588 (Connelly, Sterling)).  This law complements California’s enforcement of national requirements governing stationary source emissions of air toxics. The federal Clean Air Act (CAA) required the U.S. Environmental Protection Agency (EPA) to establish and maintain a list of air toxics, named as Hazardous Air Pollutants (HAPs), and to set emissions standards (National Emissions Standards for Hazardous Air Pollutants (NESHAPs) for many HAP emission sources; California incorporates HAP/NESHAP requirements into the state’s Toxic Air Contaminant (TAC) / Airborne Toxic Control Measure (ATCM) program. (I discussed these requirements HERE).

The federal Clean Air Act (CAA) requires the U.S. Environmental Protection Agency (EPA) to establish and maintain a list of air toxics, named as Hazardous Air Pollutants (HAPs), and to set emissions standards for many sources of such pollutants. HAPs include heavy metals, organics, and other airborne pollutants that are not otherwise regulated as “criteria” air pollutants (such as carbon monoxide, particulate matter, and ground level ozone). This note summarizes requirements applicable to stationary sources.

Although a major focus of the Clean Air Act (CAA) is the definition, attainment and maintenance of national ambient air quality standards (NAAQSs), the statute doesn’t define the term “ambient air.” This gap leaves the Environmental Protection Agency (EPA) to develop regulatory and policy definitions that delimit the reach of CAA authority. Since 1971, EPA’s definition defines “ambient air” as “that portion of the atmosphere, external to buildings, to which the general public has access.” EPA also provides additional details in a series of policy documents, which have just been updated with a  memorandum from EPA Administrator Wheeler to expand the exclusions for onsite air.

The federal Chemical Safety and Hazard Investigation Board – which usually refers to itself as the Chemical Safety Board or CSB – began operations in 1998. CSB conducts independent investigations of major chemical accidents, issues accident-specific findings, and offers specific or general recommendations for improved chemical handling and regulation (I wrote about one set of proposals here). Since its authorization in the 1990 Clean Air Act (CAA) Amendments, CSB has also had authority to establish chemical accident reporting regulations.

On November 20, 2019, the Environmental Protection Agency (EPA) completed its latest review and revisions to the Accidental Release Prevention (ARP) program for toxic catastrophe prevention under the Clean Air Act (CAA). These changes complete the Trump Administration’s review and repeal of most changes enacted during the Obama Administration, returning ARP requirements to roughly the point they were at before 2016. The remainder of this note summarizes these changes.