On May 9, the White House released its Spring 2018 update to EPA’s regulatory agenda. Agency watchers quickly dove into the document to check the status and timelines for high-profile rulemakings and gain insights on the Trump administration’s priorities. But aside from any revelations about the administration’s own initiatives, this latest document was also notable for showing just how much EPA’s regulatory agenda can be driven by forces outside of the executive branch. Continue Reading Setting the Agenda from the Outside: EPA’s Latest Regulatory Plan Demonstrates the Power of Deadline Suits

The New Source Review (NSR) Program of the Clean Air Act (CAA) requires large new plants (in the parlance of the Act “major” “stationary sources”) to go through an extensive, time consuming and expensive review and permitting process prior to construction. Such sources are required through these permits, among other requirements, to install the best available control technologies (BACT) to reduce levels of specific regulated pollutants. The NSR program also applies to existing facilities if they are modified in substantial ways and if, as a result, emissions increase by significant amounts (these are known as “major modifications”). Continue Reading Will the Fifth Circuit Put Another Nail in the Coffin of NSR Enforcement for Ancient Projects?

As we have noted previously (An Opportunity for a New Federal-State Relationship Under the Regional Haze Program, July 17, 2017; A New Perspective on Regional Haze Regulation?, February 14, 2017), the US Environmental Protection Agency (EPA) recently signaled a new openness to recognizing state prerogatives and flexibility in implementing the regional haze program under the Clean Air Act (CAA). That program addresses impairment of visibility in the skies over protected national parks and wilderness areas that is attributed to widespread haze resulting from emissions to the air from varied sources. Continue Reading Recent Developments in Regional Haze Policy: EPA and Environmental Groups Battle Over a New Program for Texas

We are serious.  And don’t call us Shirley.

So EPA sent your company a dreaded Request for Information (“RFI”).  What do you do now?  If you’ve never been through this process before, you likely have a lot running through your head:

  • Did our company do something wrong?  Is my company under investigation?
  • Is this EPA’s way of asking for my help to improve its regulations?
  • Do I have to answer this?
  • How can I possibly compile all this information in 30 days?
  • Do we need a lawyer to help us respond?
  • What about confidential information?  EPA is asking for customer or supplier information.  Isn’t that private?

Continue Reading An RFI? Surely You Can’t Be Serious.

The US EPA released its draft strategic plan for 2018-2022 on October 5, 2017.[1] Not surprisingly, the draft plan differs greatly from the Obama EPA’s last strategic plan. The change in administrations has produced innumerable shifts in the policies, goals and operations of the federal government. EPA’s draft strategic plan is emblematic of these shifts. Continue Reading Core Functions and Cooperative Federalism: EPA’s Draft Strategic Plan

In October 2015, EPA reduced the level of the National Ambient Air Quality Standards (“NAAQS”) for ozone from 75 parts per billion (“ppb”) to 70 ppb. What is happening concerning implementation of those NAAQS?

Although litigation over EPA’s decision to lower the ozone NAAQS remains in abeyance as the Trump Administration continues to consider whether the Agency should reconsider the rule or some part of it, the 2015 standard itself has not been stayed. Thus, the Clean Air Act requires that implementation of the standard proceed. One key step in implementation is promulgation by EPA of a list of areas where the standard is violated, including areas that contribute to standard violations in nearby areas. EPA’s identification of these “nonattainment” areas is a trigger for many of the Act’s control requirements. Continue Reading What’s Up with Air Quality Standards for Ozone?

As is almost always the case following a change in administration, many EPA policies and interpretations are being reviewed and, depending on your point of view, either appropriately reconsidered or “rolled back.” Front and center in this debate is the practical reality that such reviews take time, including in some cases the time necessary to comply with procedural requirements for notice and comment rulemaking. The extent to which the EPA can take the time it believes is necessary is currently playing out in courts across the country, which are grappling with questions of the degree to which the EPA can postpone regulatory compliance deadlines or delay statutorily required actions while it conducts that review.

Continue Reading Limits on the Timing of Administrative Review/Reconsideration: A Review of Several Recent Cases

Since President Trump’s inauguration and the beginning of Scott Pruitt’s tenure as administrator of the U.S. Environmental Protection Agency (EPA), much of the focus of Clean Air Act activity in the new administration has been on global climate change issues. As more time passes, however, EPA is beginning to address other areas of Clean Air Act regulatory policy, and, in some respects at least, charting a new course that departs from the record of the Obama administration. One of the areas to which EPA has started to give renewed attention is the regional haze program. Continue Reading An Opportunity for a New Federal-State Relationship Under the Regional Haze Program

Earlier this week, July 4, 2017, was the nation’s 241st birthday. In Washington, DC, and in countless other places across the country, the event was celebrated with dazzling fireworks displays. My childhood days are long behind me. But, a good fireworks display still evokes awe and gives me goose bumps. Although fireworks are synonymous with the 4th of July, Americans are not alone in their appreciation of fireworks. All across the globe—from Europe, to Asia, to South America and back again—fireworks are a universal symbol of celebration. Continue Reading The Rockets’ Red Glare…

The New Source Review (NSR) Program of the Clean Air Act requires large new plants (in the parlance of the act, “major” “stationary sources”) to go through an extensive, time-consuming and expensive review and permitting process prior to construction. Such sources are required through these permits, among other requirements, to install the best available control technologies (BACT) to reduce levels of specific regulated pollutants. The NSR program also applies to existing facilities if they are modified in substantial ways and if, as a result, emissions increase by significant amounts (these are known as “major modifications”).

For the first two decades of the NSR program, existing sources rarely triggered it. That is because EPA applied it in a way to be triggered only by unusual projects that would expand the capacity of the source. It is also because NSR is so time-consuming and expensive that sources generally avoided activities that would expand their capacities because they could trigger NSR.

That all changed drastically in the late 1990s. Continue Reading New Source Review for Existing Sources: Reform Is Needed–Will the New Administration Do It?