Tag Archives: New Source Review

New US EPA Memorandum Suggests a Hand’s-Off Approach to NSR Applicability Determinations

On December 7, 2017, US EPA Administrator Scott Pruitt issued a memorandum to all Regional Administrators to offer guidance regarding the Agency’s interpretation of New Source Review (NSR) preconstruction permitting requirements in response to recent decisions from the Sixth Circuit in EPA v. DTE Energy Co.  Highlighting the lack of unanimity among the individual Sixth … 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

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 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

US Courts Continue to Shape the Clean Air Act New Source Review Routine Maintenance, Repair and Replacement Exclusion

Generally, any physical change in or change in method of operation of an existing major stationary source that significantly increases emissions of any regulated New Source Review (NSR) air pollutant emitted will trigger NSR permitting review under the Clean Air Act as a major modification.  However, air pollution control regulations also generally contain exclusions from the definition of major modification for … Continue Reading

Update on PSD/NSR Suits: EME Homer City Generation and Midwest Generation

United States v. EME Homer City Generation, L.P. A circuit court has once again rejected the government’s invitation to rehear whether a PSD violation is a one-time or continuous violation.  On December 12, 2013, the Third Circuit denied petitions from the United States, and the States of New York, New Jersey and the Commonwealth of Pennsylvania, … Continue Reading

Seventh Circuit Denies Government’s Petition for Rehearing in PSD/NSR Case

On Friday, in the United States v. Midwest Generation, LLC appeal, the Seventh Circuit denied the government’s petition for rehearing and rehearing en banc of the court’s July 8, 2013 decision affirming the dismissal of certain PSD / NSR claims.  The judges responded to the petition uniformly.  No judge in regular active service requested a … Continue Reading

Government Seeks Rehearing of 7th Circuit Decision that Failure to Obtain PSD Permit is One-Time Violation

On September 3, 2013, the United States filed a petition for en banc and panel rehearing of the Seventh Circuit’s July 8, 2013 opinion in United States v. Midwest Generation, LLC.  Resurrecting its prior arguments, the government asserts that the panel’s interpretation of the Clean Air Act’s Prevention of Significant Deterioration (PSD) requirements was “flawed” and … Continue Reading

3rd Circuit Enforces Five-Year Statute of Limitations in NSR/PSD Enforcement Suit

On August 21, 2013, the 3rd Circuit Court of Appeals became the fourth federal appellate court to definitively limit USEPA’s enforcement authority to five years after an alleged Prevention of Significant Deterioration (PSD) violation.  In U.S. v. EME Homer City Generation, L.P., the 3rd Circuit upheld the US District Court for the Western District of Pennsylvania’s decision to dismiss USEPA’s claims that … Continue Reading

US Court of Appeals for the Seventh Circuit Affirms Dismissal of NSR / PSD Claims on Statute of Limitations Grounds

On July 8, the landscape of new source review (NSR) / prevention of significant deterioration (PSD) case law received additional clarity when the Seventh Circuit issued its much anticipated decision in United States v. Midwest Generation LLC.  The decision, penned by Chief Judge Frank Easterbrook for a three judge panel, affirmed the lower court’s March … Continue Reading

Sixth Circuit: EPA Can Bring Early PSD Enforcement Action for Improper Emissions Projections; More PSD Decisions Pending

Under the Clean Air Act’s New Source Review (NSR) / Prevention of Significant Deterioration (PSD) program,  operators do not have to obtain a preconstruction permit before modifying an existing major source of air pollution as long as the modification does not result in a significant net emissions increase.  In determining whether the modification will require NSR … Continue Reading