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Numerous industry groups, business associations, environmental advocacy groups and public interest organizations have petitioned the U.S. Court of Appeals for the District of Columbia Circuit to review EPA’s reconsideration of the so-called “Johnson Memorandum.”  In its reconsideration, EPA determined that greenhouse gases (“GHGs”) would be subject to regulation under the Prevention of Significant Deterioration (“PSD”) and Title V permit programs as of January 2, 2011.  In the related tailoring rule, which was published in the Federal Register on Thursday, EPA established a process for phasing in PSD and Title V requirements, including the requirement to do Best Available Control Technology for GHGs, beginning on January 2, 2011.

After months of anticipation, EPA finally issued its greenhouse gas “Tailoring Rule” on Thursday, May 13, 2010.  According to EPA, the rule is necessary to “tailor” the applicability of two Clean Air Act programs – the Prevention of Significant Deterioration (PSD) and Title V Operating Permit programs – to avoid impacting millions of small greenhouse gas (GHG) emitters once the first-ever GHG standards for motor vehicles take effect in 2011.  The final rule differs significantly from EPA’s original proposal (the thresholds are much higher than proposed), but the controversy remains the same:  Can EPA, via regulation, alter the definition of a term defined by statute?

After months of anticipation, the United States Environmental Protection Agency (“EPA”) released its 563-page proposal for regulating the disposal and management of coal combustion byproducts (“CCBs”) from coal-fired power plants.  Instead of offering a single approach, EPA requested comments on two options for regulating CCBs.  The first would regulate CCBs as a new “special waste” subject to many of the requirements for hazardous waste, while the second would regulate CCBs in a manner similar to typical solid waste, subject to far fewer and less stringent environmental requirements.  EPA would lead the first approach, the various States the second.  Either of EPA’s proposed options represents a seismic shift toward more comprehensive and expensive requirements for CCBs disposal and management.  And for certain utilities, EPA’s regulatory proposal effectively signals the end of ash pond disposal for CCBs.