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That’s a wrap on Quarter 2 of 2023, and it was an eventful one for environmental law news. Updates included proposed rules to address both the disposal of CCR from legacy CCR surface impoundments and GHG standards and guidelines for fossil fuel-fired power plants, the new Sackett II decision on WOTUS, SSM Rulemaking in Illinois, and new legislation passed by the Illinois 103^rd General Assembly.[1]

Here’s a quick guide to the acronyms used in this post:

• ACE – Affordable Clean Energy
• BSER – best system of emission reduction
• CAA – Clean Air Act
• CCS – carbon capture and sequestration/ storage
• CCR – coal combustion residuals
• CCRMU - coal combustion residuals management unit
• CO₂ – carbon dioxide
• CWA – Clean Water Act
• EGU – electric generating unit
• GHG – greenhouse gas
• IEPA/ Agency – Illinois Environmental Protection Agency
• ICC – Illinois Commerce Commission
• IPCB/ Board – Illinois Pollution Control Board
• JCAR – Office of the Joint Committee on Administrative Rules
• NSPS – new source performance standards
• SCOTUS – Supreme Court of the United States
• SMB/SSM – startup, malfunction, and breakdown or startup, shutdown, or malfunction
• S. EPA – United States Environmental Protection Agency
• WOTUS – Waters of the United States

U.S. EPA Proposes Rule to Address Disposal of CCR from Legacy CCR Surface Impoundments

In May 2023, the U.S. EPA published a proposed rule that would amend the regulations governing the disposal of CCR in landfills and surface impoundments. These rules are codified at 40 Code of Federal Regulations Part 257, Subpart D. The proposed amendments establish regulatory requirements for inactive CCR surface impoundments at inactive utilities, also known as “legacy” CCR surface impoundments.

Background

In April 2015, U.S. EPA promulgated national minimum criteria for existing and new CCR landfills and existing and new CCR surface impoundments. However, these rules exempted legacy CCR surface impoundments. In August 2018, the U.S. Court of Appeals for the District of Columbia vacated the exemption for inactive surface impoundments at inactive facilities and remanded the issue to the U.S. EPA to take further action consistent with that opinion. Utility Solid Waste Activities Group, et al. v. EPA, 901 F.3d 414 (D.C. 2018). The recently proposed amendments are consistent with this D.C. Circuit opinion.

The Proposed Rule

The proposed rule includes a definition for legacy CCR surface impoundments and other relevant terms, proposes that legacy CCR surface impoundments must comply with certain existing CCR regulations with tailored compliance deadlines, and proposes to regulate CCRMUs. Also, it establishes requirements to address the risks from currently exempt solid waste management that involves the direct placement of CCR. Further, the proposed rule establishes groundwater monitoring, corrective action, closure, and post-closure care requirements for all CCR management units at regulated CCR facilities.[2]  

U.S. EPA Proposes Greenhouse Gas Standards and Guidelines for Fossil Fuel-Fired Power Plants

In May 2023, the U.S. EPA proposed rules that provide CAA emission limits and guidelines for CO₂ from fossil fuel-fired EGU in power plants based on cost-effective and available control technologies.

 Five Proposed Actions

There are five separate actions proposed by the U.S. EPA to address GHG emissions:

1. revise NSPS for GHG emissions from new fossil fuel-fired stationary combustion turbine EGUs, based upon the eight-year review required by the CAA
2. revise NSPS for GHG emissions from fossil fuel-fired steam generating units that undertake a large modification, also based upon the eight-year review required by the CAA
3. provide emission guidelines for GHG emissions from existing fossil fuel-fired steam generating EGUs, which include both coal-fired and oil/gas-fired steam generating EGUs
4. provide new emission guidelines for GHG emissions from the largest, most frequently operated existing stationary combustion turbines (while also soliciting comments on approaches for emission guidelines for GHG emissions for the remainder of the existing combustion turbine category)
5. repeal the ACE Rule

Reasoning for Proposed Actions

These proposed standards are based on technologies such as CCS, low-GHG hydrogen co-firing, and natural gas co-firing, which can be applied directly to power plants that use fossil fuels to generate electricity. Further, the standards and guidelines reflect the application of the BSER that when considering costs, energy requirements, and other statutory factors, has adequately demonstrated the ability to improve the emissions performance of the covered EGUs.[3]

Supreme Court of the United States Opinion in Sackett v. EPA (Sackett II)

In May 2023, the SCOTUS released an opinion in Sackett v. Environmental Protection Agency[4] that clarified the definition of WOTUS. Unlike Rapanos v. United States,[5] which decided a similar issue of whether wetlands should be considered WOTUS, this decision had a majority ruling.

New WOTUS Test

SCOTUS decided that for purposes of determining whether wetlands are WOTUS under the CWA, use of the term “waters” encompasses “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’”[6] Then, wetlands are considered WOTUS when they are “indistinguishably part of the body of water that itself constitutes ‘waters’ under the CWA,” or in other words, wetlands are considered WOTUS when they have a “continuous surface connection” to WOTUS.[7] Thus, the CWA extends only to those wetlands that are as a practical matter indistinguishable from WOTUS. Additionally, SCOTUS clarified that the CWA continues to protect the primary rights and responsibilities of the States to prevent, reduce, and eliminate pollution and to plan the development and use of land and water resources.

Kavanaugh’s Concurrence

Justice Kavanaugh agreed with the overall decision but did not agree with this new test. Instead of the lead opinion’s definition of “adjacent” wetlands meaning only wetlands contiguous to or bordering a covered water, Kavanaugh would define “adjacent” wetlands to include “both (i) those wetlands contiguous to or bordering a covered water, and (ii) wetlands separate from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like.”[8]

Startup, Malfunction, and Breakdown Rulemaking Update in Illinois

In April 2023, the Illinois Pollution Control Board issued its Second Notice Opinion and Order in the SMB Rulemaking in PCB R 23-18. The Board proposed to adopt at Second Notice the IEPA proposed amendments to Parts 201, 202, and 212 of the Board’s regulations that remove the SMB provisions. The Board found that such amendments are technically feasible and economically reasonable, but it did not include much discussion of stakeholder participation or objection to the amendments. The Board declined to consider the separate alternative emission limits proposals filed by the Illinois Environmental Regulatory (and supported by the American Petroleum Institute), Dynegy, and Midwest Generation and instead directed the clerk to open a sub-docket rulemaking to address the alternative proposals.[9]

Later in April 2023, the JCAR rejected the Board’s Second Notice submittal in the SSM rulemaking because the Board did not include all the information required by 1 Ill. Adm. Code 220.600. Specifically, the Second Notice filing was missing “[a]n evaluation of all comments received by the agency concerning the proposed rulemaking during the first notice period pursuant to Section 5-100(e)(2) of the [Illinois Administrative Procedure] Act….The evaluation must include the following information … a list of specific criticisms, suggestions and comments raised by interested persons, and the agency’s analysis of each of these criticisms, suggestions and comments.” 1 Ill. Adm. Code 220.600(a)(9).[10]

In May 2023, the Board submitted requested documents to JCAR for Second Notice review, which included the State Mandates Act Questionnaire, an analysis of economic and budget effects, and responses to public comments. JCAR had a few follow-up questions, which the Board responded to via email on May 4 and May 5. IPCB stated that the SSM provisions are necessary to prevent the State from facing mandatory sanctions and, even though the amendments would not provide IEPA with enforcement discretion regarding SSM provisions, the Board opened a sub-docket to consider this.

A few days later, JCAR issued a Memorandum stating that JCAR had accepted Second Notice, and the Second Notice was published on May 19, 2023. The Second Notice period ran from May 4, 2023, through June 17, 2023. On June 13, 2023, JCAR decided to extend its consideration of the rulemaking for 45 days—until its next meeting on July 18, 2023. On July 20, 2023, over an objection by JCAR, the Board adopted the amendments proposed by IEPA, which finalized removing the SMB provisions from the Illinois Administrative Code.

Illinois 103^rd General Assembly Update

Governor Pritzker signed these bills into law after the 2023 Legislative Session:

• Senate Bill 46 creates the Illinois Waterway Ports Commission. This Commission will:
  • coordinate and synchronize common efforts and initiatives to enhance the reporting of and benefits of statistical data
  • make recommendations on regional issues that impact multimodal transportation, economic development, environmental sustainability, and climate resiliency
  • coordinate and synchronize common efforts and initiatives with the Mid-America Port Commission and the Joliet Regional Port District
  • coordinate and synchronize federal activities associated with the nonfederal sponsorship of the M-55 Illinois-Gulf Marine Highway
  • request and assist in requesting funding for the Commission area and surrounding areas
• Senate Bill 1563 added a new section on microplastics to the Environmental Protection Act. The new section directs the IEPA to make publicly available on its website a description of microplastics and their effects on aquatic life and human health, federal and state regulatory actions taken to address microplastics, contact information for an IEPA employee available to address questions on this matter, and additional resources on the subject.
• House Bill 1190 amended the Illinois Underground Natural Gas Storage Safety Act to define “verified facility release.” The bill further adds a new section regarding the responsibilities of the owner/operator with respect to a verified facility release at an underground natural gas storage facility, including the owner/operator creating procedures for suspected natural gas leaks or suspected unintentional releases from an underground natural gas storage facility that is identified by either the Department of Natural Resources or the owner or operator.
• House Bill 1105 added language to the Illinois Municipal Code and the Eminent Domain Act regarding property that belongs to a public utility that provides water or sewer service that is subject to the jurisdiction of the ICC. Under the new law, this property may not be taken or damaged by eminent domain without prior approval of the ICC. The law applies only to actions that commence after the bill was signed into law.
• House Bill 1629 amends the Wildlife Code to include new protected species. The bill excludes the Eurasian Collard Dove and Ringed Turtle-Dove from the list of wildlife protected by the Code. The bill classifies the Virginia Rail, the Sora Rail, the Wilson’s Snipe, the Woodcock, the Mourning Dove, and the White-winged Dove as migratory game birds for purposes of the Code.

[1] Check out our Quarter 1 environmental law news update here: https://www.heplerbroom.com/blog/wotus-and-pm-naaqs-and-pfas-oh-my-environmental-highlights-in-first-quarter-2023

[2] More information on the proposed rule can be found here: https://www.govinfo.gov/content/pkg/FR-2023-05-18/pdf/2023-10048.pdf

[3] More information on the proposed rule can be found at: https://www.epa.gov/stationary-sources-air-pollution/greenhouse-gas-standards-and-guidelines-fossil-fuel-fired-power.

[4] Sackett v. Environmental Protection Agency, 143 S. Ct. 1322 (2023).

[5] Rapanos v. United States, 547 U.S. 715 (2006).

[6] Sackett, 143 S. Ct. at 1324 (citing Rapanos, 547 U.S., at 739 (plurality opinion)).

[7] Id. at 1339.

[8] Id. at 1362. The full SCOTUS Opinion can be found here: https://www.supremecourt.gov/opinions/22pdf/21-454_4g15.pdf.

[9] The Board’s Second Notice Opinion can be found here: https://pcb.illinois.gov/documents/dsweb/Get/Document-107932.

[10] The Memorandum from JCAR can be found here: https://pcb.illinois.gov/documents/dsweb/Get/Document-108040.