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The Environmental Protection Agency (EPA) issued a new guidance memorandum on Thursday, January 25, 2018 that addresses the question of when – and whether – a major source of hazardous air pollutants (HAPs, such as lead, mercury, and benzene) can be reclassified as an “area source” under Section 112 of the Clean Air Act, and thereafter avoid major source permitting requirements. The new guidance allows major sources to become area sources at any time, by agreeing to federally enforceable limits on their potential to emit HAPs. This replaces the EPA’s previous “once in, always in” policy, whereby any major source of HAPs remained a major source regardless of later reductions in its potential to emit HAPs.

Continue Reading EPA Revises Guidance Allowing Reclassification of Major Sources of Hazardous Air Pollutants as Area Sources Under the Clean Air Act

Natural Gas Fired Electrical Power Plant

The U.S. Court of Appeals for the District of Columbia recently denied the Environmental Protection Agency’s (EPA) proposed delay of an Obama-era rule that limits methane emissions from new oil and gas equipment, sending oil and gas companies scrambling to immediately ensure compliance with the rule to avoid any enforcement actions. Continue Reading Methane Rule Litigation Creates Uncertainty for Oil and Gas Companies

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Under a recent summary judgment decision from a federal district judge, the EPA must continuously examine the effects that certain Clean Air Act (CAA) regulations have on employment in the coal industry specifically and other industries more broadly. This means the EPA will be subject to increased requirements before taking action under the CAA. The ruling also suggests that additional requirements could be imposed on the EPA under similar provisions in other environmental statutes, such as the Clean Water Act, the Toxic Substances Control Act, the Solid Waste Disposal Act, and CERCLA. Continue Reading EPA Must Examine Effects of Clean Air Act Regulations on Jobs

Oil Refinery at dusk

Environmental groups continue their attack on long-standing rule provisions under the Clean Air Act that limit or exclude liability related to “startup, shutdown, and malfunction” events. Historically, USEPA has acknowledged that it may be impracticable, if not impossible, for industry to meet emissions standards during certain periods, including during startup, shutdown or malfunction events, when emissions are typically higher than during normal operation. However, in May 2015, in response to prior challenges, USEPA instructed 36 states to revise their implementation plans with regard to SSM events. Continue Reading Environmental Groups Challenge EPA Refinery Rule

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On January 6, 2016, the Third Circuit held that the Clean Air Act’s diligent prosecution bar cannot be the basis for a motion to dismiss for lack of subject matter jurisdiction.  Instead, the bar requires citizen suits under the Act to be dismissed for failure to state a claim. Group Against Smog & Pollution v. Shenango, Inc., Case No. 15-2041 (Jan. 6, 2016). Several federal environmental laws bar citizen suits where regulators are “diligently prosecuting” a civil action against the alleged violator. With this case, the Third Circuit became the third appellate court to break with past precedent and hold that a diligent prosecution bar is not jurisdictional. This change will require defendants filing motions to dismiss based on the diligent prosecution bar to do so before they answer a complaint. Additionally, it will require courts to accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Industry defendants should be aware of these procedural changes as they prepare to respond to citizen suits. Continue Reading Third Circuit Holds Diligent Prosecution Bar Does Not Preclude Jurisdiction for Citizen Suit

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On November 2, 2015, the Sixth Circuit held that the Clean Air Act does not preempt state law nuisance, trespass, and negligence claims.  Little, et al. v. Louisville Gas & Electric Co., PPL Corp., Case No. 14-6499 (Nov. 2, 2015); Merrick v. Diageo Americas Supply Inc., Case No. 14-6198 (Nov. 2, 2015).  In a class action lawsuit, the plaintiffs in Little v. LG&E alleged that dust from Louisville Gas and Electric Co.’s (LGE) Cane Run power plant contaminated their property and caused health problems.  Defendant LGE argued that the Clean Air Act (CAA) preempted the plaintiffs’ nuisance, trespass, and negligence claims.  LGE argued that the CAA preempts state common law air pollution claims because it gives the EPA the authority to set uniform air quality control standards across the country.  LGE further argued that the state common law claims conflict with the CAA’s methods for regulating emissions and that allowing those claims to proceed would disturb the balance among federal and state interests.  The district court disagreed.  LGE petitioned for interlocutory appeal and the district court certified the order for appeal. Continue Reading Sixth Circuit Holds the CAA Does Not Preempt State Common Law Claims

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On October 1, 2015, EPA lowered the National Ambient Air Quality Standards (NAAQS) for ground-level ozone to 70 parts per billion (ppb).  The new standard will replace the 2008 standard of 75 ppb, which EPA found inadequate to protect public health with an adequate margin of safety, as required under the Clean Air Act, and likely will result in changes in ozone attainment designations in a number of areas. Continue Reading New Ozone Standards Expected to Push Many Areas Out of Attainment

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On September 4, 2015, the United States Court of Appeals for the Fifth Circuit overturned Citgo Petroleum Corporation’s two convictions under the Clean Air Act (CAA) and three convictions under the Migratory Bird Treaty Act (MBTA).  The court held that the district court had erred in allowing improper jury instructions and had misinterpreted the MBTA’s “take” provision.   Continue Reading Fifth Circuit Lets Citgo Fly Free

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EPA has proposed to resolve an issue that has vexed the oil and gas industry for years—how to determine which operations compose a single “source” for permitting decisions.  Unfortunately, the proposed resolution introduces new ambiguities.  The proposal comes as part of President Obama’s Climate Action Plan, but in reality is the latest chapter in EPA’s storied history[1] of attempting to establish a clear policy to determine when emissions from physically separate sources should be aggregated for purposes of determining permitting obligations under the Clean Air Act. Continue Reading EPA’s Newest Attempt at Aggregating Emission Sources in the Oil & Gas Industry

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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