U.S. v. Homer City U.S. v. Midwest Generation, LLC U.S. v.
United States Steel CAA Enforcement Cases
Slide 3
PSD VIOLATIONS: One Time or Continuing? Is failure to obtain a
PSD permit a one time violation that occurs at the time of the
construction/modification, or a is it a continuing violation for
every day the facility operates without a PSD permit in place?
Slide 4
Statue of Limitation for PSD Claims The five year SOL at 28
U.S.C. 2462 applies to PSD claims : Except as otherwise provided by
Act of Congress, an action, suit or proceeding for the enforcement
of any civil fine, penalty, or forfeiture, pecuniary or otherwise
shall not be entertained unless commenced within five years from
the date when the claim first accrued if, within the same period,
the offender or the property, is found within the United States in
order that proper service may be made thereon.
Slide 5
Different Standard Depending on Status of Owner/Operator Past
owner/operator that performed modifications Current owner/operator
that did not perform modification Current owner/operator that
performed modification
Slide 6
United States v. Homer City 2013 U.S. App. LEXIS 17477 (3rd
Cir. Aug. 21, 2013) Court dismissed PSD claims against: current
owner (that did not perform the modification),and former owners
(that performed the modification without a PSD permit)
Slide 7
United States v. Homer City Court held: PSD claims are not
continuing in nature PSD imposes pre-construction obligations only
Pennsylvania SIP did not help with imposing continuing operational
PSD obligations
Slide 8
United States v. Homer City Current owners who did not perform
the modification: No penalties No injunctive relief Clean Air Act
protects their reasonable investment backed expectations [of a new
owner].
Slide 9
United States v. Homer City Current owners that perform
modification: If current owners had performed modifications, Homer
City Court would have allowed US to seek injunctive relief but not
penalties (since the SOL had run).
Slide 10
United States v. Homer City Former Owners who performed
modification: No injunctive relief because former owners are not
currently violating the CAA. US did not bring a claim for penalties
against former owner.
Slide 11
United States v. Midwest Generation, LLC, 720 F.3d 644 (7th
Cir. 2013) The Court dismissed PSD claims against: The current
owner, Midwest Generation, who did not perform the modification,
and The former owner, Commonwealth Edison, who performed the
modification without a PSD permit.
Slide 12
United States v. United States Steel, 2013 U.S. Dist. LEXIS
118513 (N. Dist. Ind. 2013) Liability of current owner who
performed modification : Penalty claims barred by SOL Injunctive
relief not barred by SOL
Slide 13
Mississippi v. EPA Center for Biological Diversity v. EPA Texas
v. EPA Association of Battery Recyclers v. EPA National Association
of Clean Water Agencies v. EPA Supreme Court Developments Recent
CAA Cases: Non- Enforcement
Slide 14
2008 Ozone NAAQS Challenge Mississippi v. EPA (D.C. Cir., July
23, 2013) Upheld EPAs 2008 primary National Ambient Air Quality
Standard for ozone of 0.075 ppm as reasonable. Remanded EPAs 2008
secondary ozone standard for reconsideration.
Slide 15
Biogenic CO 2 Deferral Challenge Center for Biological
Diversity v. EPA (D.C. Cir., July 12, 2013) Biogenic CO 2 Deferral
Rule deferred regulating biogenic CO 2 for 3 years while EPA
furthered studied the science. Rule vacated as arbitrary &
capricious.
Slide 16
Greenhouse Gas SIP Rule Challenges Texas v. EPA, No. 10-1425
(D.C. Cir., July 26, 2013) Rejected challenges to EPA actions
requiring all states to have a state or federal implementation plan
in place that provides for issuance of preconstruction permits for
greenhouse gases.
Slide 17
Secondary Lead Smelter MACT Association of Battery Recyclers v.
EPA, 716 F.3d 667 (D.C. Cir. May 28, 2013) Upheld rule. Rejected
industry claim that EPA impermissibly regulated elemental lead.
Held that EPA could consider cost & did not need to recalculate
the MACT when revising standard.
Slide 18
Sewage Sludge Incinerator MACT: National Association of Clean
Water Agencies v. EPA (D.C. Cir. August 20, 2013) Remanded (without
vacating) rule establishing emissions standards for sewage sludge
incinerators back to EPA for further explanation regarding the
basis for its selection of emission standards.
Slide 19
Significant Litigation Developments On October 5, the Supreme
Court granted review of EPAs GHG permitting Rules in Utility Air
Regulatory Group v. EPA. On December 10, the Supreme Court will
hear oral argument addressing EPAs Cross State Air Pollution Rule
in EPA v. EME Homer City. On December 10, the D.C. Circuit will
hear oral argument on EPAs mercury & Air Toxics Standard for
coal and oil fired power plants in White Stallion v. EPA and
Utility Air Regulatory Group v. EPA