Tag Archives: Clean Air Act

Asbestos-Containing Materials: A Non-Scope Consideration Worth Investigating During Environmental Due Diligence

A common question that arises when performing environmental due diligence on commercial real estate is the degree to which the presence of asbestos-containing materials (ACMs) should be investigated.  In the case of ACMs, “what you don’t know can hurt you” and, therefore, the old axiom of “less is more” does not apply.  This is especially true regarding asbestos not only … Continue Reading

Ninth Circuit Rules Smelter Emissions Are Not a CERCLA Disposal

The Ninth Circuit’s recent opinion in Pakootas v. Teck Cominco Metals, Ltd., addressed whether, “[w]hen a smelter emits lead, arsenic, cadmium, and mercury compounds through a smokestack and those compounds contaminate land or water downwind, . . . the owner-operator of the smelter [can] be held liable for cleanup costs and natural resource damages under … Continue Reading

US EPA Finalizes Oil and Gas New Source Performance Standards With Potentially Broader New Source Review Impact

With US EPA’s regulation of greenhouse gas emissions from fossil fuel–fired electric generation still hotly contested in the D.C. Circuit, US EPA is proceeding with the next step in its implementation of the White House’s Climate Action Plan by moving forward with additional greenhouse gas regulations, this time of the nation’s oil and gas infrastructure.  … Continue Reading

The Air (Emissions) of Spring May Soon Give Rise to Unprecedented CERCLA Liability

iStock_000012328862_SmallAs 2015 came to a close, the Ninth Circuit Court of Appeals quietly notified the parties in a decades-long environmental dispute that, in April 2016, the court will hear arguments in a case that could reshape CERCLA liability forever.  The basis for the pending appeal is a district court order holding that air emissions could … Continue Reading

D.C. Circuit Leaves US EPA’s Mercury Rule in Place During Remand

On December 15, 2015, the United States Court of Appeals for the District of Columbia rejected challenges by energy industry groups and several states that are seeking to scrap US EPA’s Mercury and Air Toxics Standards (“MATS”) final rule.  White Stallion Energy Center, LLC v. EPA, Case No. 12-1100.  The Court remanded the rule to US EPA for … Continue Reading

US EPA Issues Final Rule to Clamp Down on Refinery Emissions

On September 29, 2015, US EPA issued a final rule for the regulation of emissions from the nation’s 142 petroleum refinery operations (the “Refinery Rule”).  The regulatory structure underlying the rule is complex, but essentially includes both a “residual risk review” to assess the risk to public health, and a “technology review” where, as the … Continue Reading

Environmental Groups Sue US EPA to Force Residual Risk and Technology Reviews

On April 8, 2015, a coalition of nine environmental organizations from California, Louisiana, Oregon and Ohio filed a Clean Air Act (CAA) citizen suit against US EPA in the District of Columbia alleging US EPA failed to “review, and revise as necessary” air toxics standards for 21 source categories under CAA § 112(d)(6).  The environmental organizations also allege US … Continue Reading

US EPA Greenhouse Gas Permitting Update

As we reported last summer, the US Supreme Court ruled that US EPA lacked authority to impose Prevention of Significant Deterioration (PSD) and Title V permitting requirements under the Clean Air Act (CAA) on facilities based solely on their emission of greenhouse gases (GHGs).  Since that decision there have been many questions about how sources of GHG … Continue Reading

US EPA Revises Emission Factors for Flaring

On April 20, 2015, EPA revised AP-42 emission factors for equipment found in refineries, chemical plants, and miscellaneous sources, substantially increasing the estimated emissions produced by equipment from these industry categories.  The emission factors, which were last updated in 1991, were revised as a result of litigation brought by environmental groups that asserted that EPA had … Continue Reading

US Chamber of Commerce Joins House of Representatives in Calls for Greater Regulatory Transparency From EPA

Recently, the US Chamber of Commerce (Chamber) published its report Truth In Regulating: Restoring Transparency to EPA Rulemaking, criticizing EPA for not providing critical details about the regulatory intent and true costs associated with significant Agency rulemakings.  The Chamber report follows on the heels of last week’s passage of H.R. 1029, the EPA Science Advisory Board Reform … Continue Reading

US Supreme Court Holds that Agencies Are Not Required to Comply With Notice and Comment Requirements When Revising Interpretative Rules

This month, in Perez v. Mortgage Bankers Association, the US Supreme Court overturned the D.C. Circuit’s Paralyzed Veteran doctrine, rejecting nearly 20 years of precedent requiring federal agencies to abide by notice-and-comment rulemaking procedures when they substantially alter an “interpretive” rule. However, the decision also hints that even broader changes may be afoot.  Writing in … Continue Reading

US EPA’s Duty to Revise PSD Rules When It Amends a NAAQS Is Not Mandatory

Earlier this month, the Ninth Circuit affirmed the dismissal of environmental groups’ Clean Air Act (CAA) citizen-suit actions against US EPA.  The court held that US EPA does not have a nondiscretionary duty to promulgate revised Prevention of Significant Deterioration (PSD) regulations when it revises a National Ambient Air Quality Standard (NAAQS). The Plaintiffs – … Continue Reading

US EPA Releases Proposed 8-hr Ozone Standards

On November 25, 2014, US EPA released its long-awaited proposal to tighten the 8-hr ground-level ozone standard. The impacts of this rule are difficult to overstate. Unless changed, it will push much of the country into non-attainment, forcing state regulators to pursue emissions reductions while making permitting more difficult and restricting growth. A Smoggy Past: … Continue Reading

RCRA “Disposal” Does Not Extend to Emissions Directly into the Air Per US Court of Appeals for the Ninth Circuit

On August 20, 2014, the US Court of Appeals for the Ninth Circuit affirmed the dismissal of a suit brought by environmental groups against Union Pacific Corp. and BNSF Railway Co., holding that the Resource Conservation and Recovery Act (RCRA) does not authorize a citizen suit to enjoin the emission of diesel particulate matter as it … Continue Reading

US EPA’s Failure to Timely Issue Permit Does Not Authorize Grandfathering PSD Permit Application Under Former Air Quality Standards

On August 12, 2014, the Ninth Circuit, in Sierra Club v. EPA, vacated US EPA’s decision to issue a Prevention of Significant Deterioration (PSD) permit to construct a power plant under outdated – and less stringent – air quality standards in place when the permit application was submitted.  The Court held that the Clean Air … Continue Reading

Update: Comment Period Open for US EPA’s Proposed Carbon Pollution Emission Guidelines for Existing Sources

As discussed in our recent blog post and client alert, the  proposed Carbon Pollution Emission Guidelines for Existing Stationary Sources  (ESPS) has now been published in the Federal Register.   This publication commences the 120 day comment period.  Comments on the proposed rule must be received by US EPA on or before October 16, 2014.… Continue Reading

US EPA Issues Final PM2.5 Implementation Rule Following Remand

On June 2, US EPA published a final rule that outlines the regulatory framework states must follow to implement the 1997 and 2006 standards for fine particulate matter, or PM2.5.  The Rule was issued in response to a remand from the D.C. Circuit Court of Appeals in January 2013, which returned for correction a pair of rules … Continue Reading

Will US EPA’s “Building Blocks” Really Allow States Flexibility to Craft Power Plant Emission Reductions in Their Own Way?

As detailed in our recent Client Alert, the Obama Administration, in an effort to curb carbon dioxide (CO2) emissions, has released a proposed rule that, if finalized, will require 30% reductions of CO2 emissions from 2005 emission levels from existing power plants by the year 2030.  The proposed existing source performance standard (ESPS) purports to … Continue Reading

D.C. Circuit Upholds US EPA’s Revised PM2.5 Standard Despite Serious Concerns Raised

On May 9, the Court of Appeals for the D.C. Circuit upheld US EPA’s rule revising the annual National Ambient Air Quality Standard (NAAQS) for fine particulate matter (PM2.5) despite serious concerns regarding how states and regulated entities are to proceed under new rules.  The January 2013 final rule lowers the annual allowable limit for PM2.5, eliminates the option of “spatial … Continue Reading

US EPA’s 2013 Proposed Power Plant New Source Performance Standards Continue to Raise Concerns

US EPA has its work cut out for it as the Agency begins to review over 10,000 comments submitted concerning its proposed 2013 Clean Air Act New Source Performance Standards (NSPS) for new power plants through the close of the comment period on May 9, 2014.  US EPA’s work begins just as it plans to release its proposed … Continue Reading

US Power Companies Face Billions in Compliance Costs as D.C. Circuit Upholds MATS Rule

On April 15, 2014, in White Stallion Energy Center v. EPA, the US Court of Appeals for the D.C. Circuit upheld the Mercury and Air Toxics Standards (MATS) promulgated by US EPA on February 16, 2012, which sets new emissions standards for new and existing coal- and oil-fired power plants. EPA estimates that 1,400 power plants will be affected by the … Continue Reading

Impact of U.S. Supreme Court Decision to Reinstate Cross-State Air Pollution Rule

On April 29, 2014, the U.S. Supreme Court issued a 6-2 opinion reversing the D.C. Circuit Court of Appeals and reinstating the U.S. EPA’s promulgation of the Cross-State Air Pollution Rule (“CSAPR”), which regulates the inter-state transport of NOx and SO2 emissions in implementing the “Good Neighbor Provision” in the Clean Air Act.  A centerpiece … Continue Reading
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