EPA Is Quickly Checking Off President Biden’s Executive Order Action Items

January 14, 2022
Michael Dillon, Esq. and Jessica D. Hunt, Esq.
MGKF Special Alert - Federal Forecast 2022

Upon taking office, President Biden ordered executive agencies to perform sweeping reviews of existing regulations promulgated during President Trump’s tenure and, for certain regulations, imposed deadlines for the proposal of new regulations. EPA has been making progress implementing President Biden’s executive orders, with additional actions expected to continue into 2022. Some of the more notable EPA actions are summarized below.

New NSPS Requirements Proposed on the Oil and Gas Sector
Among EPA’s earliest required actions was to address emissions from the Oil and Gas Sector.   On November 15, 2021, EPA published notice in the Federal Register of three proposed actions that are collectively intended to significantly reduce emissions of greenhouse gases (GHGs) and other harmful air pollutants from the Crude Oil and Natural Gas source category. First, EPA is proposing to revise the new source performance standards (NSPS) for GHGs and volatile organic compounds a new subpart OOOOb, which will include standards for emission sources constructed after November 15, 2021. Second, EPA is proposing emission guidelines for states to follow in developing, submitting, and implementing state plans to establish performance standards to limit GHGs from existing sources in the Oil and Gas Sector. Third, EPA is proposing amendments to 40 CFR Part 60 Subpart OOOOa to address inconsistencies between the VOC and methane standards, and to make changes to fugitive emission monitoring at low production well sites and gathering and boosting stations. The comment period for the proposed rulemaking is scheduled to close on January 31, 2022.

Reconsideration of Mercury Air Toxic Standards for Coal- and Oil-Fired EGUs
EPA is required to reconsider the National Emission Standards for Hazardous Air Pollutants for Coal- and Oil-Fired Electric Utility Steam Generating Units, commonly known as the Mercury and Air Toxic Standards. In response to the Supreme Court’s decision in Michigan v. EPA, 135 S. Ct. 2699 (2015), the Trump Administration determined that it was not appropriate and necessary to regulate hazardous air pollutants from coal- and oil-fired electric generating units. On August 3, 2021, EPA submitted a notice of proposed rulemaking to the Office of Management and Budget but did not identify a timeline for the promulgation of a final rule. On reconsideration, Biden’s EPA is likely to again find that regulating hazardous air pollutants from coal- and oil-fired electric generating units is appropriate and necessary, while addressing the Supreme Court’s concerns raised in Michigan v. EPA. While such a finding itself would not change existing regulations or standards, it may serve as a predicate for the eventual strengthening of emission standards.

Rescission of the Benefit-Cost Rule
On May 13, 2021, EPA issued an interim final rule to rescind the Benefit-Cost Rule. The Benefit-Cost Rule required EPA to conduct a benefit-cost analysis for all “significant” regulations issued under the CAA, and, in conducting the analysis, required EPA to disaggregate economic benefits from other co-benefits and constrained EPA’s ability to consider human health benefits. The interim final rule reverts back to the pre-existing administrative process in which EPA will publish notice in the Federal Register and allow for public comment regarding the benefits and costs of an action, the policy considerations, and any other concerns regarding the action. This interim final rule became effective on June 14, 2021 and will remain in effect until it is replaced by the final rule that responds to any public comments.

Reversion of Startup, Shutdown, and Malfunction Exemptions
On September 30, 2021, EPA issued a guidance memorandum withdrawing a prior Trump Administration memorandum that allowed states to incorporate provisions in their state implementation plans for startup, shutdown and malfunctions (SSM). The September 30, 2021 memorandum reverts to a prior position under the Obama Administration that state implementation plan provisions that provide exemptions from air emission limits during periods of SSM are inconsistent with the CAA. EPA’s reversion in policy could impact facilities relying on SSM exemptions to comply with permitted emission limits.

The Biden Administration has been busy promulgating new regulations and guidance reversing the Trump Administration’s environmental decisions and is expected to continue to review and revise actions taken by the prior administration throughout the course of 2022.