Understanding the New Air Pollution Rules

• Date: 01 February 2011

2-2011 NEWS & ANALYSIS 41 ELR 10079

D I A L O G U E

Understanding the New

Air Pollution Rules

Editors’ Summary

e U.S. Environmental Protection Agency embarked

on an ambitious schedule of air pollution rulemaking

following the vacatur of several Bush Administration

rulemakings. e “transport rule” seeks to cap inter-

state emissions of sulfur dioxide (SO2) and nitrogen

oxides (NOx) from power plants to replace the Clean

Air Interstate Rule (CAIR). Also scheduled are: a plan

to review and update hazardous air pollution rules

covering 28 types of industrial facilities; rules limiting

mercury and other toxic emissions, including arsenic,

dioxins, and hydrochloric acid; national health stan-

dards for ozone; and BACT standards that will likely

address greenhouse gases. On October 20, 2010, at

ELI’s Fall Practice Update, panelists discussed how

these various rules interrelate and how they might t

with legislative developments in the next two years.

Panelists:

Chuck Knauss, Partner, Bing ham McCutchen LLP

(moderator)

Michael J. Bradley, President, M.J. Bradley & Associates

Robert D. Brenner, Director, Oce of Policy Analysis

and Review, Oce of Air and Radiation, U.S. EPA

John Walke, Clean Air Director/Senior Attorney, Natural

Resources Defense Council

Rebecca Leamon: Our moderator is Chuck Knauss. He

is a partner at Bingham McCutchen in Washington, D.C.,

where he represents companies and trade associations in

environmental permitting, rulemak ing, litigation, com-

mercial, and legislative matters. He is nationally recog-

nized as an authority on the Clean Air Act (CAA).1 He has

25 years of experience addressing all aspects of this federal

statute, including several years as counsel to the U.S. House

of Representatives Committee on Energy and Commerce,

where he was named in the ea rly 1990s as a Senior GOP

Aide handling the Comprehensive 1990 CAA Amend-

ments. Richard Cohen’s history of the 1990 Amendments,

Washington at Work: Back Rooms and Clean Air, noted that

Chuck “was probably the most inuential Republican on

the legislation.” Chuck founded and is counsel to the Air

1. 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618.

Permitting Forum, a group of Fortune 50 companies that

develops practical and eective advice for all aspects of the

permit process, including applications, negotiations, per-

mit terms, certications, appeals, revisions, and remedies.

I. Introductions and Overview

Chuck Knauss: ank you, Rebecca, for those kind words.

I hope everybody was able to attend last night. I’ve been to

many of these functions over the last 20 years or so, and I

thought last night’s was particularly good. It was well run

and it got people to the bar in time to watch the Yankees

get pummeled. But I thought Administrator [Lisa] Jack-

son’s remarks preceded by former Administrator [William

K.] Reilly’s remarks were really quite good.

I’m really delighted to be on t his stage today with the

panel we have. It’s a terric group, a nd it’s very timely. I

think, Rebecca, you noted 25 years. Unfortunately, I think

it’s now 30 years. e thing is a little bit out of date. irty

years I’ve been at t his, and in those 30 years, I have never

seen a period with so much going on. is is a result of not

only t his Administration reconsidering a lot of the prior

Administration’s decisions, but also because the statute

requires a number of things to get done on certain time-

tables, and the Agency is being held to those timetables by

interested parties through citizen suits and the like.

So, just NAAQS [national ambient air quality stan-

dards] are really almost a microcosm of it, but we are

going to be seeing ve NAAQS within three years, and

those NAAQS, of course, each come with designations and

implementation rules and all the rest. Put that on top of

§202 tailpipe regulations…and the Tailoring Rule. Couple

that with t he §112 technology reviews and §112(f)(2) risk

reviews, a s well as EPA's position that it has to look back

again at a few §112(d) underlying standards. ere is just

an awf ul lot that has happened, and there is an awful lot

more that is going to happen.

Our rst speaker today is going to talk a little bit about

how the Agency is trying to grapple with this snowball of

regulations that are aecting the reg ulated community,

but also the states. Timelines for states are being truncated

dramatically, looking at their SIPs [state implementation

plans] in light of the new requirements.

Rob Brenner joined t he Agency in 1979, so it wa s two

years after the 1977 Amendments, so he was there during

the rollout of the 1977 Amendments all during the 1980s.

He was a primary Agency participant in the 1990 Amend-

Copyright © 2011 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.