On January 5, EPA added 1-bromopropane (1-BP), which is also called n-propyl bromide, to the list of Hazardous Air Pollutants (HAP) under the federal Clean Air Act. 1-BP is used as a substitute for other HAPs in dry cleaning and other industries. This marks the first addition to the list since it was established as part of the 1990 Clean Air Act Amendments. The addition was prompted by petitions to list 1-BP by the Halogenated Solvents Industry Alliance and the New York State Department of Environmental Conservation.

EPA is expected to issue additional guidance and regulation under the National Emission Standards for Hazardous Air Pollutants (NESHAP) that will further govern the emission of the 1-BP; in the interim, companies that emit 1-BP need to consider how the addition of 1-BP to the list of HAPs will affect their permitting, emissions reporting, and regulatory compliance.
Continue Reading EPA Expands the List of Clean Air Act Hazardous Air Pollutants

The top U.S. Department of Justice (DOJ) Environmental official has put corporate employees on notice that DOJ is increasing its focus on prosecuting individuals for environmental crimes, including the threat of jail time. In a pre-recorded keynote address to the American Bar Association (ABA) National Environmental Enforcement Conference on December 14, 2021, Assistant Attorney General for the Environment and Natural Resources Division (ENRD) Todd Kim stated, “Only individuals can go to jail, and we have found that criminal corporate accountability starts with accountability for individuals responsible for criminal conduct.”
Continue Reading DOJ Targeting Employees for Criminal Environmental Prosecution: Tips for Minimizing Exposure

On August 9, 2019, the EPA plans to publish a proposed rule to codify the current interpretation of New Source Review (NSR) Project Emissions Accounting. The rule would explicitly allow consideration of emissions decreases from a project, alongside any emissions increases, when determining whether the project causes a significant emissions increase from the source. Historically, many state regulators, and even certain EPA applicability determinations, have suggested that only emissions increases (and not decreases) should be considered. Considering emissions decreases in this analysis allows more projects to avoid triggering NSR.

Continue Reading Emission Decreases Count: EPA Proposes Rule to Codify Approach to NSR Project Emissions Accounting

Last week, the U.S. Environmental Protection Agency (EPA) completed its reconsideration of a January 2009 final action on “project aggregation.” Project aggregation is the concept that addresses when to combine nominally separate physical or operational changes at a stationary source to determine whether the changes trigger New Source Review (NSR) permitting requirements under the Clean Air Act (CAA). The 2009 final action (74 FR 2376) (the “2009 Aggregation Action”) sets forth the EPA’s desired interpretation and policy concerning when to aggregate such activities into a single project. The EPA has submitted the final action reconsidering the 2009 Aggregation Action for publication in the Federal Register (the “2018 Reconsideration”). After the 2018 Reconsideration is published, the 2009 Aggregation Action will go into effect
Continue Reading EPA Completes Reconsideration of “Project Aggregation” Final Action

On September 7, 2016, the United States Environmental Protection Agency (EPA) issued a final rule updating the Cross-State Air Pollution Rule (CSAPR) ozone season trading program.  The rule promulgates more stringent ozone season NOx budgets in several states.  CSAPR was promulgated to implement the “good neighbor” provision of the Clean Air Act, which requires states to address the transport of pollution across state lines.
Continue Reading EPA Updates Cross-State Air Pollution Rule for the 2008 Ozone NAAQS

On November 16, 2015, the United States EPA proposed updates to the Cross State Air Pollution Rule. These updates would require more stringent nitrogen oxide reductions from power plants in 23 states. EPA also proposes to address nitrogen oxide and sulfur dioxide requirements for 11 states whose original reduction requirements were remanded to EPA following recent court actions.

The Cross State Air Pollution Rule, better known as CSAPR, was originally promulgated in 2011 to force certain states to reduce emissions of nitrogen oxide (NOx) and sulfur dioxide (SO2) from power plants. EPA now proposes to update CSAPR to require 23 upwind states to further reduce ozone season NOx emissions, beginning in 2017, to ensure that downwind states can comply with the 2008 National Ambient Air Quality Standards (NAAQS) for ground-level ozone of 75 parts per billion (ppb).
Continue Reading EPA Proposes CSAPR Update Rule Requiring Additional NOx Reductions in 23 States

On July 28, 2015, the U.S. Court of Appeals for the District of Columbia Circuit remanded without vacatur several states’ maximum emission allowances, or “emissions budgets,” for sulfur dioxide (SO2) and nitrogen oxides (NOx) under the Cross-State Air Pollution Rule (CSAPR) back to the Environmental Protection Agency (EPA). EME Homer City Generation, L.P., v. EPA, No. 11-1302 (D.C. Cir.). CSAPR is EPA’s emissions trading program to curb interstate air pollution from power plants under the Clean Air Act’s good neighbor provision.
Continue Reading D.C. Circuit Remands Several Upwind States’ SO2 Emissions Budgets But Sides with EPA on all other Challenges to Cross-State Air Pollution Rule

In a major reversal for the United States Environmental Protection Agency (USEPA), the Supreme Court on June 23, 2014, limited USEPA’s authority to regulate greenhouse gases (GHGs), holding that USEPA did not have the authority to change a statutory applicability term of the Clean Air Act (Act).  Utility Air Regulatory Group v. Environmental Protection Agency, et al. (UARG), No. 12-1146, slip op. (June 23, 2014).  “Were we to recognize the authority claimed by EPA in the Tailoring Rule, we would deal a severe blow to the Constitution’s separation of powers.”  Id. at 23.  As a result, the Court concluded that USEPA cannot require a Title V or Prevention of Significant Deterioration (PSD) permit solely on the basis of a source’s GHG emissions.
Continue Reading Supreme Court Limits USEPA’s Greenhouse Gas Regulations, Refuses to “Wave Goodbye” to Separation of Power Principles

On May 30, 2014, the U.S. Court of Appeals for the D.C. Circuit issued a decision in National Environmental Development Assoc.’s Clean Air Project v. EPA (NEDA)[1] that limits the ability of the United States Environmental Protection Agency (USEPA or the Agency) to apply different interpretations of its Clean Air Act (the Act) regulations in different areas of the country.  At issue was a USEPA policy concerning the interpretation of the word “adjacent” in its regulations under the Act.  An earlier decision by the Sixth Circuit held that USEPA’s interpretation was unreasonable.  In response, USEPA issued a directive to its regions, instructing them to continue applying USEPA’s historic interpretation of “adjacent” for permitting decisions outside the Sixth Circuit.  The D.C. Circuit held that USEPA’s directive violated its own Clean Air Act regulations, which require national uniformity.
Continue Reading USEPA’s Piecemeal Approach to Aggregation Under the Clean Air Act Falls to Pieces

Natural Resources Defense Council v. USEPA: Court Rejects USEPA’S Approach to PM2.5 NAAQS Implementation

Recently, the Circuit Court for the District of Columbia rejected the United States Environmental Protection Agency’s (USEPA’s) 2007 and 2008 rules implementing the 1997 national ambient air quality standard (NAAQS) for fine particulate matter having a diameter equal or less than 2.5 micrometers (PM2.5). The court held that USEPA erred by promulgating the PM2.5 implementation rules pursuant to the general nonattainment area implementation provisions for NAAQS found in Title 1, Part D, Subpart 1 of the Clean Air Act, rather than the stricter particulate matter-specific nonattainment area implementation provisions for NAAQS found in Subpart 4. The two rules were remanded back to USEPA for promulgation consistent with Subpart 4. The decision results in uncertainty for sources located in PM2.5 nonattainment areas.
Continue Reading Recent Developments in PM2.5, SO2 and CSAPR Rule Challenges