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

Aug 2, 2016

EPA, Greenhouse Gas from Aircraft Emissions Endanger Human Health

On July 25, 2016, pursuant to the authority of Section 231(a) of the Clean Air Act (“CAA”) the U.S. EPA declared that emissions of greenhouse gas from aircraft endanger human health and the environment. The endangerment finding, which can be found at RIN 2060-AS31 opens the door for the EPA to regulate greenhouse gas emissions from aircraft. According to the EPA’s top air official, Janet McCabe, “the EPA has already set effective greenhouse gas standards for cars and trucks, and any future aircraft engine standards will also provide important climate and public health benefits.” According to the agency, 89% of… Read more

Jun 27, 2016

U.S. EPA Prepares to Defend White House Clean Power Plan

Within hours of the U.S. Supreme Court’s decision halting the Carbon Dioxide Standards implementation under the Clean Air Act (the “Act”), the U.S. EPA began to prepare their public defense of the plan.  EPA Administrator Gina McCarthy said in a February e-mail to all staff, the day after the Supreme Court issued its stay, that “the rule fits squarely within the four corners of the Clean Air Act – a statute we have been successfully implementing for 45 years.”  Other internal e-mails from senior EPA officials have expressed surprise at the U.S. Supreme Court’s decision, but have quickly emphasized that… Read more

May 13, 2016

Opponents of Clean Power Plan Seek Two Days of Oral Argument

Oral arguments in the challenge to the Clean Power Plan are currently scheduled for June 2 and 3 before the US Court of Appeals for the District of Columbia. Opponents of the Clean Power Plan are seeking two days of oral arguments, with time divided between several topics. On the first day, the parties would address whether the Clean Power Plan impermissibly forces utilities to shift energy generation away from coal-fired power to renewable sources.  They would also address whether the U.S. Environmental Protection Agency (“U.S. EPA”) can regulate carbon dioxide from power plants under Section 111(d) of the Clean… Read more

May 3, 2016

States Challenge EPA’s Clean Power Plan

More than two dozen states, along with industry, utility and other groups, have joined a lawsuit challenging the EPA’s Clean Power Plan.  The challengers argue that Section 111(d) of the Clean Air Act does not authorize the EPA to implement the Clean Power Plan as currently written.  The plaintiffs assert that the EPA’s rule would fundamentally transform the domestic energy sector, and that the Clean Air Act does not authorize the agency to make such sweeping changes.  According to statements from Plaintiffs, the case is not about the wisdom of any particular policy; rather, it is about whether the EPA… Read more

Apr 19, 2016

Former EPA Administrators Defend Clean Power Plan

The U.S. EPA contends that shifting electricity generation away from coal-fired utilities as required by the Clean Power Plan (the “CPP”) constitutes a permissible system of emission reduction under the Clean Air Act (the “Act”).  Two former EPA administrators have expressed support for this interpretation, asserting that the Act was broadly worded to reflect Congress’s intent to allow EPA the flexibility to address emerging air pollution problems without having to seek revisions to the Act itself.  The current EPA administration has determined that the Act’s requirement that EPA determine the “best system” for cutting carbon dioxide emissions is broad enough… Read more