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EPA issues revisions to rule maligned by Trump's choice to lead agency

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EPA issues revisions to rule maligned by Trump's choice to lead agency

In the latest last-minute regulation to be issued by the U.S. EPA, the agency finalized revisions to the regional haze rule in an effort to encourage steady environmental progress and clarify the rule's goals.

But the revisions released Dec. 14 will face a new EPA administrator in 2017, and the man nominated for the job has been an outspoken foe of the regional haze rule in his capacity as attorney general of Oklahoma.

The final revisions cover the regional haze rule's second planning period and pushes back by three years the deadline for submission of state implementation plans, or SIPs. Plans were originally due July 31, 2018, but states now will have until July 31, 2021. The end date for the planning period will remain 2028, and the focus of the plans still will be on emission reduction measures that should be underway by that point, as required by the regional haze rule. Interim reports will be due in 2025, 2033 and every 10 years thereafter.

The first plans were due in 2007 for the 2008-2018 planning period. The new schedule was set to ensure that states have enough time to consider other federal regulations that may impact the same pollutants and therefore can be incorporated into states' plans as compliance measures. Those rules include the Mercury and Air Toxics Standards and the National Ambient Air Quality Standards for SO2 and fine particles.

In a proposal issued in April, the EPA said the Clean Power Plan could be used for compliance; however, the agency in its final revisions notably downplayed that option as a result of the stay currently barring enforcement of that rule. The EPA noted that states have no obligations to comply with the carbon-cutting rule for existing fossil fuel power plants while the stay is in place.

The final revisions also boosted the powers of federal land managers and their role in consultations with states developing their SIPs.

To aid in the development of states' second planning period SIPs, the EPA said it intends to issue further guidance. But the future of the regional haze rule itself may be in question with the news that President-elect Donald Trump has nominated Oklahoma Attorney General Scott Pruitt to succeed Gina McCarthy as administrator of the EPA.

Pruitt was among eight attorneys general who wrote the EPA during the public comment period in August to protest the agency's proposed alterations to the regional haze rule. The chief legal officers from Arkansas, Alabama, Colorado, Kansas, Michigan, North Dakota, Oklahoma and South Carolina specifically complained that the proposal would significantly alter existing definitions and "divest the states of their long-established role in determining what is a reasonably attributable visibility impairment source or set of sources." The attorneys general also objected to the expanded role proposed for federal land managers, saying the move would dramatically enlarge their authority. Moreover, Pruitt and his colleagues said the proposal would fail to accomplish the agency's goals in issuing the regional haze rule.

In the final revisions, the EPA said the changes to the managers' authority was an effort to ensure that any issues in a state's SIP are identified early on in the development process.

On behalf of Oklahoma, Pruitt launched a lawsuit against the EPA's regional haze rule in 2012 and has said the rule is "regressive" and "a tax on those that can least afford it." The U.S. Supreme Court declined to take up the regional haze suit in May 2014, ending Pruitt's attempt to have the burden of the rule lifted from his state and leaving the lower court's decision in place. The U.S. Court of Appeals for the 10th Circuit in July 2013 rejected Oklahoma's assertion that two large coal-fired power plants owned by OGE Energy Corp. subsidiary Oklahoma Gas and Electric Co. should be allowed to adhere to a state plan that would allow the facilities to emit more than the EPA's federal limits under the regional haze rule.