Sep 28, 2023

Third Circuit Reverses EPA “Reactivation” Policy for PSD

A three-judge panel for the U.S. Court of Appeals for the Third Circuit has held that the Clean Air Act (“CAA”) bars the EPA from requiring facilities that are restarting after being shuttered to undergo to strict, Prevention of Significant Deterioration (“PSD”) permitting. In the Opinion, Port Hamilton Refining & Transportation LLP v. EPA, the three-judge panel vacated the EPA’s 2022 decision requiring a refinery to obtain a PSD permit when the shuttered facility reopened. According to the panel, the CAA “unambiguously limits the PSD Program’s application to newly constructed or modified facilities. The refinery is not new and has… Read more

Sep 20, 2023

EPA Eliminates “Emergency” Defenses to CAA Violations

On July 21, the EPA finalized a rule barring “affirmative defense” emission waivers for “emergency” scenarios under Clean Air Act (“CAA”) Title V Permits.  The proposed rule would remove an enforcement defense that allowed facilities to avoid liability for permit violations occurring during qualified emergency circumstances such as unavoidable emission control device malfunctions, or emergency start-up or shutdowns. Under the previous waiver provisions, industry permit holders were shielded from civil liability during a malfunction or other emergency that resulted in excess releases of air pollution. The proposed rule will require states to amend their State Implementation Plans (“SIPs”) to eliminate… Read more

Feb 14, 2022

EPA to List New Hazardous Air Pollutant

The Environmental Protection Agency has added a new chemical to the list of Hazardous Air Pollutants (HAPs) for the first time since the list was created in 1990. The chemical, 1 bromopropane (1-BP), is used as a commercial degreaser and in dry cleaning operations. Now that 1-BP is added to the list of HAPs, the EPA will begin the process of proposing final regulations governing emission limitations which could take several years. Companies emitting 1-BP should begin the process of accessing their emission potentials, and to consider alternative products to eliminate the use of 1-BP altogether. Specifically, facilities that are… Read more

Apr 14, 2021

Challenge to Trump Rule Relaxing Clean Car Standards Put on Hold by D.C. Circuit

A D.C. Circuit has put on hold a challenge to a Trump administration decision to scale back standards for fuel efficiency and greenhouse gas emission for vehicles.  The Trump era rule lowered federal fuel efficiency standard reduction requirements from 5% to 1.5% annually through 2026.  A coalition of mostly democratic lead states sued to overturn the Trump rollback, and the Biden administration argued successfully before the D.C. Circuit to halt the proceedings while the EPA and the National Highway Traffic Safety Administration review the regulations. For more information, please contact Phillip Hoover.

Mar 17, 2021

“Diesel Brothers” Clean Air Act Lawsuit Threatens to Greatly Expand Standing Under Citizen Suits

Truck Pollution

A Federal District Court in Utah ruled that a group of physicians had standing to sue the host of a popular television show, “Diesel Brothers,” for alleged violations of the Clean Air Act resulting from modifications to pollution control devices installed on trucks.  At issue on appeal, is whether the Utah physicians for a healthy environment (UPHE”) group can allege a justiciable harm and demonstrate “redressability and causation” both of which are required elements to establish standing.  The Diesel Brothers argue on appeal that the UPHE cannot demonstrate that they were injured by the excess emissions caused by the vehicle… Read more

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