Q:        What is the Clean Power Plan?

A:        The United States Environmental Protection Agency (USEPA) is proposing to regulate greenhouse gas (GHG) emissions from fossil fuel-fired electric generating units (EGUs) through a rule called the Clean Power Plan.  This rule does not purport to directly regulate EGUs.  Instead, USEPA is proposing statewide carbon dioxide (CO2) emission goals and guidelines, called the “state goals.”  States would develop plans to meet those state goals, using a flexible menu of programs and tools that USEPA discusses in the proposal.  Most of the details are left to the states and will be included in State Implementation Plans (SIPs).
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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.
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On June 2, 2014, the United States Environmental Protection Agency (USEPA) released the most sweeping component of President Obama’s Climate Change Action Plan.  USEPA’s 650-page proposed Clean Power Plan states that carbon dioxide (CO2) emissions from the combustion of fossil fuels at existing power plants is the single largest category of stationary source Greenhouse Gas (GHG) Emissions in the United States, accounting for about one-third of all GHGs emitted.
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On Monday, May 19, the United States Environmental Protection Agency (USEPA) issued final rules under Section 316(b) of the Clean Water Act for existing[1] facilities that (a) use cooling water intake structures designed to withdraw at least 2 million gallons of water per day from waters of the U.S.; (b) have or are required to have a National Pollutant Discharge Elimination System (NPDES) permit; and (c) use at least 25 percent of the water they withdraw exclusively for cooling purposes.  According to USEPA, the rules apply to more than 1,000 facilities in the following sectors:

  • Electric generating plants
  • Pulp and paper mills
  • Chemical manufacturing plants
  • Iron and steel manufacturing
  • Petroleum refineries
  • Food processing
  • Aluminum manufacturing


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On May 9th the United States Environmental Protection Agency (USEPA) initiated a process that may result in federal regulation of the fluids used in hydraulic fracturing (fracking).  In the past 10 years, United States production of oil and gas has skyrocketed, due in part to the increased use of fracking technologies that use highpressure injection of fluids, sand, and chemicals to stimulate the release of oil and gas from geological formations which were difficult to access with other techniques.  While fracking technologies have been in use for some time, environmentalists have argued that the public lacked adequate information to assess whether chemicals used in fracking posed represented threats to human health or the environment.
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A recent Seventh Circuit decision addressed the contours of the general statement that USEPA’s decisions in an “on-going” remediation may not be challenged under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).  CERCLA Section 113(h)(4) provides that “[n]o Federal court shall have jurisdiction . . . to review any challenges to removal or remedial action” except during a limited number of actions, none of which allow a plaintiff to challenge an ongoing response action.  42 U.S.C. § 9613(h)(4).  Generally, courts applying this provision have found that parties are prohibited from reviewing ongoing clean-up activities under CERCLA.
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For more than 10 years, the United States Environmental Protection Agency (“USEPA”) has attempted to develop a workable solution to address cross-state air pollution.  The Court of Appeals for the D.C. Circuit in 2012 had vacated USEPA’s Cross-State Air Pollution Rule or CSAPR, also known as the Transport Rule[1], for regulating upwind state emissions. On April 29, 2014, the United States Supreme Court reversed[2] the D.C. Circuit’s decision and remanded the rule back to that Court for further action consistent with the Supreme Court’s opinion.
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White Stallion Energy Center, LLC v. EPA, No. 12-1100 (D.C. Cir. Apr. 15, 2014).

The D.C. Circuit upheld the controversial Utility MACT Rule, also known as the Mercury and Air Toxics Standard or MATS, on April 15, 2014, with a 2-1 split, rejecting challenges from State, Industry, and Labor petitioners to the United States Environmental Protection Agency’s (USEPA) 2012 promulgation of emission standards for several listed hazardous air pollutants (HAPs) emitted by coal- and oil-fired electric utility steam generating units. White Stallion Energy Ctr., LLC v. EPA, No. 12-1100 (D.C. Cir. Apr. 15, 2014); see National Emission Standards for Hazardous Air Pollutants from Coal- and Oil-Fired Electric Utility Steam Generating Units and Standards of Performance for Fossil-Fuel Fired Electric Utility, Industrial-Commercial-Institutional, and Small Industrial-Commercial- Institutional Steam Generating Units, Final Rule, 77 Fed. Reg. 9304 (Feb. 16, 2012)(to be codified at 40 C.F.R. parts 60 and 63) (“Final Rule”).  The court’s long and detailed decision hinged on whether USEPA’s interpretation of the term “appropriate and necessary” from Section 112 of the Clean Air Act in the development of the Final Rule was permissible.  White Stallion Energy Ctr., LLC, No. 12-1100, 16.
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On January 29, 2014, the U.S. Environmental Protection Agency (US EPA) entered into a Consent Decree committing to take final action by December 19, 2014 on coal ash disposal regulations under the Resource Conservation and Recovery Act (RCRA). In 1993 and 2000 US EPA commenced and completed Bevill Amendment determinations regarding the regulation of the disposal of coal ash.  In both 1993 and 2000 US EPA determined that it would continue to assess whether increased regulation of coal ash is appropriate.  Some 10 years after its last determination, US EPA on June 21, 2010 announced that it was considering two alternative options to increase regulation of coal ash.  The first option was to revise the 1993 and 2000 Bevill Regulatory Determinations and regulate coal ash as a special waste subject to RCRA under Subtitle C.  The second option “would leave the Bevill determination in place and regulate disposal” under Subtitle D of RCRA.
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