Under the new administration, EPA continues to blaze a new trail, as evidenced by these late-breaking developments:
- EPA signed the hospital/medical/infectious (HMI) rule on September 15, 2009. While technically an NSPS/Emission Guideline under Part 60, this rule is derived from Section 129 of the Clean Air Act and is a MACT-like regulation. As such, this rule represents the second MACT issued under the new EPA leadership (the first was the Portland Cement area source MACT) and provides a chance to assess the likely processes EPA may use in setting future standards under the Boiler MACT and other pending MACTs.
- On September 24, 2009, EPA received an early Christmas gift from the Environmental Appeals Board in the Desert Rock case regarding a coal-fired power plant located on an Indian reservation in EPA Region 9. A permit was issued in 2008, however, under new leadership EPA requested a remand of the entire proceeding for a new evaluation, an unprecedented request before the EAB. Multiple industry groups sought intervenor status and filed briefs on the impropriety of a remand under rules of administrative procedure. In its ruling, the EAB not only found voluntary remand appropriate and fully allowable, but separately opined that EPA Region 9 erred in excluding IGCC from consideration at Step 1 of the BACT analysis. The EAB's opinion on IGCC at Step 1 of BACT is at odds with a decision by the Georgia Court of Appeals in Longleaf which was upheld by the Georgia Supreme Court on September 28, 2009.
- EPA's draft PSD Tailoring rule was approved by the Office of Management and Budget on September 21, 2009. While details of the rule have not yet been released, it is widely expected to enact a 25,000 tpy major source threshold and significance level for stationary sources for GHG emissions. The legal community is in wide agreement that EPA’s intention to deviate from the statutory 100/250 tpy major source level by regulation is a weak position and not likely to survive an inevitable challenge.