Since May 2013 Select Clean Air Act Cases

U.S. v. Homer City U.S. v. Midwest Generation, LLC U.S. v. United States Steel CAA Enforcement Cases

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?

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.

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

United States v. Homer City 2013 U.S. App. LEXIS (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)

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

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].“

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).

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.

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.

United States v. United States Steel, 2013 U.S. Dist. LEXIS (N. Dist. Ind. 2013) Liability of current owner who performed modification : Penalty claims barred by SOL Injunctive relief not barred by SOL

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

2008 Ozone NAAQS Challenge Mississippi v. EPA (D.C. Cir., July 23, 2013) Upheld EPA’s 2008 primary National Ambient Air Quality Standard for ozone of ppm as reasonable. Remanded EPA’s 2008 secondary ozone standard for reconsideration.

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.

Greenhouse Gas SIP Rule Challenges Texas v. EPA, No (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.

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.

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.

Significant Litigation Developments On October 5, the Supreme Court granted review of EPA’s GHG permitting Rules in Utility Air Regulatory Group v. EPA. On December 10, the Supreme Court will hear oral argument addressing EPA’s Cross State Air Pollution Rule in EPA v. EME Homer City. On December 10, the D.C. Circuit will hear oral argument on EPA’s mercury & Air Toxics Standard for coal and oil fired power plants in White Stallion v. EPA and Utility Air Regulatory Group v. EPA