On October 24, 2014, the Environmental Protection Agency (“EPA”) published its final rule documenting the failure of the California Air Resources Board (“CARB”) to submit a State Implementation Plan (“SIP”) revision containing measures to control California’s significant contribution to the nonattainment, or interference with maintenance, of the 2006 24 hour fine particulate matter (“PM2.5”) National Ambient Air Quality Standards (“NAAQS”) in other states (“Interstate Transport SIP”).

More specifically, CARB’s failure to submit constitutes a violation of the general provisions of the Clean Air Act (“CAA”), § 110(a)(2)(D)(i)(I) which requires that CARB submit a SIP revision to comply with the implementation, maintenance and enforcement provisions related to new or revised NAAQS within three years after the promulgation of the revised NAAQS; and that such plan contain adequate provisions to prohibit emissions from the state that will contribute significantly to nonattainment of the NAAQS (“Prong 1”), or interference with maintenance of the NAAQS (“Prong 2”), in any other state.  The final rule implementing the “Finding of Failure” transfers to EPA the obligation to promulgate a Federal Implementation Plan (“FIP”) to address the interstate transport requirements, within 24 months.
 
The issue has come to prominence as a result of the federal/state partnership that is the foundation of the CAA, see 42 U.S.C. § 7401(a)(3) and (4), giving EPA the power of approval over locally developed plans.  


Continue Reading California Once Again Relinquishes Clean Air Act Enforcement Responsibility to the Federal Government

On August 21, 2012, in a highly unusual disagreement with a rulemaking action by a Federal agency, the D.C. Circuit Court of Appeals sent the Environmental Protection Agency’s (“EPA”) Cross-State Air Pollution, or Transport, Rule, governing sulfur dioxide (“SO2”) and oxides of nitrogen (“NOx”) emissions, back to the agency with firm instructions to try again, and, next time, do a better job.  What makes this decision somewhat unusual is that cross-state rules had previously been implemented by EPA for PM2.5 and ozone, and upheld by the D.C. Circuit, see, e.g., Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000) and North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008). 

In its decision in EME Homer City Generating, L.P., et al. v. EPA, et al., Case No. 11-1302, the D.C. Circuit took strong issue with EPA’s attempt to meet its responsibility under Clean Air Act § 110(a)(2)(D)(i)(I), 49 U.S.C. § 7410(a)(2)(D).  That section, the “good neighbor” provision, requires, in pertinent part, that, after EPA sets National Ambient Air Quality Standards (“NAAQS”), 42 U.S.C. § 7409, and designates areas within each state which exceed the NAAQS, 42 U.S.C. § 7407(d), or “nonattainment” areas, states must develop a state implementation plan (“SIP”), 42 U.S.C. § 7410, which includes provisions prohibiting any emissions source or activity “which will – contribute significantly to nonattainment in, or interfere with maintenance by, any other state with respect to any such national primary or secondary ambient air quality standard.”  The D.C. Circuit found major legal flaws in EPA’s Transport Rule. 
 


Continue Reading The D.C. Circuit Vacates EPA’s Cross-State Air Pollution Rule

On June 18, 2012, the Environmental Protection Agency (“EPA”) posted in the Federal Register, Vol. 77, No. 117, 36342, its Final Rule adopting several new aircraft engine emission standards for oxides of nitrogen (“NOx”) for aircraft turbofan or turbojet engines with rated thrusts greater than 26.7 kilonewtons (kN), or in common parlance, commercial passenger and freighter aircraft normally used at airports across the United States.  The rule applies only to the manufacture of new aircraft engines, not to retrofit of existing aircraft engines. 

The EPA’s stated purpose in enacting the new rule is two-fold.  First, NOx is strongly correlated with nitrogen dioxide (“NO2”) which is a “criteria pollutant” under the EPA’s National Ambient Air Quality Standards (“NAAQS”), and is an important precursor gas in the formation of ozone and secondary particulate matter (“PM2.5”) which are common air pollutants in urban areas where airports are often located.  Second, the new rule will bring United States’ emissions standards into consistency with those established by the International Civil Aviation Organization (“ICAO”), see ICAO Annex 16, Vol. II, 2010 that the U.S. helped to develop and supports as part of the international process. 

The rule contains six major provisions.
 


Continue Reading EPA Adopts Final Rule Further Restricting NOx Emissions from New Aircraft Engines

On Thursday, March 16, 2012, the Environmental Protection Agency (“EPA”) took the almost unprecedented step of publishing in the Federal Register a correction to its prior definition of “regulated new source review pollutant” (“Rule”) contained in two sets of Prevention of Significant Deterioration (“PSD”) regulations, 40 C.F.R. §§ 51.166 and 52.21, and in EPA’s Emissions Offset Interpretative Ruling, 40 C.F.R. Part 51, Appendix S, 77 Fed.Reg. 15,656. The purpose of the revision is to correct an “inadvertent error” dating back to the Rule’s promulgation in 2008 when the then-existing definition was changed to require that particulate matter emissions, both PM10 and PM2.5, representing three separate size ranges of particulates, must include “gaseous emissions, source or activity which condense to form particulate matter at ambient temperatures,” i.e., condensable particulate matter.  See, e.g., 40 C.F.R. § 51.166(b)(49)(vi).  Previously, EPA’s regulations only required the filterable fraction, not the condensable particulate matter, to be considered for new source review purposes.  The 2008 change therefore imposed an unintended new requirement on State and local agencies and the regulated community.


Continue Reading EPA Issues “Amendment” to Definition of Condensable Particulate Matter as Regulated New Source Review Pollutant

In National Resources Defense Council v. Southern California Air Quality Management District, 2011 W.L. 2557246 (C.A. 9 (Cal.)), the National Resources Defense Council (“NRDC”) sought to call the Southern California Air Quality Management District (“SCAQMD”) to account for purportedly using invalid “offsets” for emissions increases resulting from new stationary sources. A panel of the Federal Ninth Circuit Court of Appeals found, however, that: (1) the District Court’s decision refusing to hold SCAQMD to a validity standard for its internal “offsets” for emissions increases was correct because such a validity standard is not required by the Clean Air Act (“CAA”), 42 U.S.C. section 7503(c) (“Section 173(c)”); and (2) ironically, the District Court lacked jurisdiction to reach that decision where original jurisdiction lies in the Courts of Appeals pursuant to CAA section 7607.


Continue Reading The National Resources Defense Council Challenge to the Southern California Air Quality Management District Administration of Emissions Credits Rejected by Ninth Circuit Court of Appeals

On June 3, 2010, the U.S. Environmental Protection Agency [EPA] issued a final rule establishing lowered standards for acceptable levels of sulfur-dioxide [SO2] emissions. The new rule also changes the monitoring requirements for SO2. SO2 is one of six criteria pollutants which Federal agencies must evaluate under the EPA’s General Conformity Rule, to determine whether emissions from a proposed project would conform to an approved CAA implementation plan. If a conformity analysis and determination indicate that a proposed Federal project would not conform to an applicable implementation plan, the project cannot be funded, licensed, permitted or approved.
Continue Reading EPA Sets New Standards for Sulfur-Dioxide (SO2) Emissions and Monitoring

On September 10, 2008, Anne Milgram, the New Jersey Attorney General filed an amicus curiae brief in support of the Petitioners in the Airspace Redesign litigation currently pending in Court of Appeals for the District of Columbia Circuit.  In it, the New Jersey Attorney General emphasizes the impact that the Airspace Redesign will have on New