Jul 24, 2019

EPA Expected to Release Proposal to Modify New Source Review

The EPA is expected to release a proposed rule or policy for public comment regarding changes to the Clean Air Act’s pollution permitting program known as New Source Review. On July 17, the White House Office of Management and Budget completed its review of the proposed rule (RIN:2060-AT89), which is typically the final step before EPA releases a proposal. Under the current permitting program, power plants, refineries, and other large industrial sites must implement updated pollution controls in the event a new facility is built or an existing one is amended in a way that increases emissions. Under the proposed… Read more


Mar 13, 2019

California Moves to Block U.S. EPA Air Pollution Standards for Auto Emissions

California Pollution Standards: Low Emission Zone

Representatives for the California Air Resources Board have stated that they will take all legal measures necessary to block the Trump administration’s efforts to freeze fuel economy limits at nationwide 2020 levels. Under the Clean Air Act (“Act”), California has special authority to enact stricter pollution standards for motor vehicles than the nationwide standards set by the federal government. Under the same provisions of the Act, other states may adopt the more stringent California standards if they find them to be more protective of public health.  Under the Trump administration, the EPA sought to impose more lenient emission requirements in… Read more


Jan 16, 2019

No Time Bar for Injunctive Relief for New Source Review Violations, 5th Circuit Rules

Clean Air Act: Smog vs. Clear Day

On October 1, the U.S. Court of Appeals for the 5th Circuit held that there is no statute of limitations applicable to an EPA enforcement action for injunctive relief for violations of the  New Source Review (NSR) requirements in the Clean Air Act. United States v. Luminant Generation Co., No. 17-10235, (5th Cir., October 1, 2018). Injunctive relief could include forcing emissions cuts from the air emission sources involved. Even though financial penalties are precluded by the 5-year statute of limitations in enforcement actions for NSR violations that occurred more than 5 years before suit was filed, the Court ruled that… Read more


Aug 22, 2018

“Exceptional Events” Exemption Under the Clean Air Act Upheld by D.C. Circuit

Clean Air Act and Man Made Pollution

EPA’s “exceptional events” rule allows air pollution caused by “exceptional events” to be discounted by States in determining their compliance with National Ambient Air Quality Standards (“NAAQS”).  Environmental groups challenged the rule as overbroad, contending that it would allow an exemption for man-made pollution.  The three-judge panel of the U.S. Circuit Court for the District of Columbia Circuit disagreed on July 20 and upheld the rule.  Natural Resources Defense Council (NRDC) v. EPA, D.C. Cir., July 20, 2018.  Applying Chevron deference, the Court held that EPA’s interpretation of the Clean Air Act as allowing pollution from its definition of “exceptional… Read more


Aug 15, 2018

U.S. EPA Sued Over Missed Air Pollution Reviews

Air Pollution

A nonprofit foundation has sued the U.S. EPA for missing deadlines to review and potentially revise air pollution limits for toxic air and emissions from a variety of air emission sources. Those sources include furnaces used in steel plants and large terminals to store and transport gasoline. Under the Clean Air Act, the EPA is required to periodically review standards applicable to hazardous and toxic air pollutants. The EPA has missed the deadlines for reviewing the limits and standards for new sources for a number of categories including those that are applicable to electric arc furnaces and bulk petroleum storage… Read more


Jul 11, 2018

Pace of Review of Industrial Expansion Permits to Continue Under Acting EPA Administrator

Clean Air Act: Wind Farm

The pace of changes to the Clean Air Act permitting program for new major sources or expanded major source facilities is expected to continue under the leadership of acting EPA Administrator Andrew Wheeler. Outgoing EPA Administrator Scott Pruitt was at odds with the agency’s Air Chief Bill Wehrum over how the new source review permitting should proceed. Pruitt favored a comprehensive overhaul of the permitting program while Wehrum preferred incremental program changes achieved through a combination of guidance and rulemaking.  With Pruitt’s departure, Wheeler is widely expected to allow for the continuation of the incremental changes to the program rather… Read more


Feb 21, 2018

EPA Reverses Toxic Pollutant Policy under Clean Air Act

On January 25, the EPA issued a memorandum reversing the “once-in-always-in” policy under the Clean Air Act (“Act”) which prevented major sources of toxic air pollutants from removing pollution control devices at their facilities once actual emissions fell below major source thresholds.  The new policy will allow these facilities to be reclassified as smaller “area” sources subject to less stringent requirements.  The policy originated in a 1995 memorandum which clarified when major sources (defined as facilities that released at least 10 tons per year of single toxic air pollutant or 25 tons of any combined toxic pollutants each year) can… Read more


Nov 1, 2017

EPA Enforcement Action Signals Heightened RMP Oversight

Chemical Storage Sign

In August, EPA announced a Consent Order with ChemArt Company of Lincoln, Rhode Island to correct alleged violations of EPA’s Risk Management Program (RMP) under the Clean Air Act.  The Consent Order included a civil penalty of $221,326 and a supplemental environmental project (SEP) requiring ChemArt to reduce its stockpile of hazardous materials, including chlorine, and to update manufacturing equipment to reduce the likelihood and consequences of a release. In the waning days of the Obama Administration, EPA issued a final rule updating the RMP and imposing new requirements.  On June 14, the Trump Administration EPA issued a final rule… Read more


Jan 18, 2017

U.S. EPA has determined Clean Air Act permit granted to Georgia Cellulosic Biomass Plant to be Inadequate

Boilers & Clean Biomass

The Environmental Protection Agency (“EPA”) has concluded that the Clean Air Act (“Act”) operating permit for the Piedmont Green Power facility issued by the Georgia EPD in 2015 is inadequate for failure to include sufficient monitoring, record keeping, and reporting requirements to ensure that biomass burned in the plant’s boiler qualifies as clean, cellulosic biomass. Title V operating permits are issued by state and local permitting authorities, which must submit the permits to the EPA for review and approval. The operating permit includes annual hazardous air pollution remnants that the EPA determined are legally and practically unenforceable. Based on this… Read more


Dec 19, 2016

EPA Raises Defense of Power Plant Carbon Rule in Federal Court

Smoke Stacks and Coal Ash

The US EPA has argued that carbon dioxide limits for newly constructed power plants fall squarely within the EPA’s Clean Air Act authority, thereby making arguments in a Federal Court which President-Elect Donald Trump’s Administrator nominee has already rejected.  The incoming Trump Administration will be tasked with defending the new source performance standards for new and modified power plants which the President-Elect has vowed to repeal. The case is set for argument before the U.S. Court of Appeals for the District of Columbia on April 17th unless the Administration chooses to seek an abeyance of the lawsuit or possibly a… Read more