NSR: An industry lawyer's perspective on the ongoing battle over who speaks for EPA

EM: Air and Waste Management Association's Magazine for Environmental Managers

Volumn , Issue JAN., 2004, Pages 27-29

  Elliott, E Donald ^a  

^a Willkie Farr and Gallagher LLP   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

AIR POLLUTION CONTROL EQUIPMENT; ENVIRONMENTAL PROTECTION; HEALTH CARE; INDUSTRIAL PLANTS; LAWS AND LEGISLATION; PUBLIC POLICY; SOCIETIES AND INSTITUTIONS; TECHNOLOGY;

CLEAN AIR ACT; HEALTH BASED STANDARDS; RULE OF LAW; TECHNICAL AMENDMENTS;

AIR POLLUTION CONTROL;

EID: 0742304103     PISSN: 10889981     EISSN: None     Source Type: Trade Journal    
DOI: None     Document Type: Article

References (19)

1. Drew, C.; Oppel Jr., R.A. Lawyers at EPA Say It Will Drop Pollution Cases; The New York Times, Nov. 6, 2003, p. A-1. More evidence of the rearguard actions by some EPA attorneys to undermine the President's policies was provided by recent leaks to The New York Times, criticizing the decision not to bring more NSR cases.
2. Ferullo, M. EPA's enforcement chief defends review of existing new source review investigations; BNA Daily Report for Executives Nov. 21, 2003. While EPA intends to drop cases that it has not yet filed "in light of the policy that is reflected in the new rule," quite inconsistently EPA maintains that it will nonetheless prosecute vigorously those cases it has already filed involving identical conduct and will not aggree to "fire sale" settlements. There is no rationale basis to distinguish exactly the same conduct depending on whether it was already under suit at the time the government announced the new rule, which merely restored the policy that was in effect at the time the conduct occurred.
3. 123 Cong. Rec. H36327-36334, S36250-36259 (Nov. 1, 1977). As enacted on August 7, 1977, the new Part C prevention of significant deterioration (PSD) program required preconstruction permitting only for entirely new sources classified as "major." However, three months later on November 1, 1977, in a "technical and conforming amendment," Congress expanded the PSD program to apply also to "modifications." The technical amendment added the following definition of "construction" in section 169(2)(C) of the CAA, 42 U.S.C. §7479(2)(C): "The term 'construction' when used in connection with any source or facility, includes the modification (as defined in section 111(a)) of any source or facility." (Emphasis added.)
4. Wisconsin Electric Power Co. (WEPCO) vs. Reilly, 893 F.2d 901 (7th Cir. 1990).
5. Wisconsin Electric Power Co. (WEPCO) vs. Reilly, 893 F.2d 901, 910, 915 (7th Cir. 1990).
6. United States vs. Mead Corp., 533 U.S. 218 (2001).
7. H.R. 3030; A Legislative History of the Clean Air Act Amendments of 1990; Public Law 101-549, 104 Stat. 2399; May 1990, LEXIS 1990 CAA Leg. Hist. 3021, 3685 (not a modification "if such change does not increase the potential emissions of any air pollutant from such source above the potential emissions before the change").
8. S. 1630; A Legislative History of the Clean Air Act Amendments of 1990; Public Law 101-549, 104 Stat. 2399; April 1990, LEXIS 1990 CAA Leg. Hist. 6946, 6951 (not a modification "if does not increase the maximum potential capacity of the unit").
9. Letter from Richard Schmalensee, Council of Economic Advisers, to Senator Wendall Ford, Chairman, Subcommittee on Energy Research and Development, Committee on Energy and Natural Resources (Sept. 11, 1990).
10. Conference Report; A Legislative History of the Clean Air Act Amendments of 1990; Public Law 101-549, 104 Stat. 2399; Oct. 26, 1990, LEXIS 1990 CAA Leg.Hist. 1451, 1794.
11. Remarks; A Legislative History of the Clean Air Act Amendments of 1990; Public Law 101-549, 104 Stat. 2399; Nov. 1990, LEXIS 1990 CAA Leg.Hist. 10726, 10763. One of the conferees further explained (without contradiction by any of the others) that it was the conferees intention to promote a prompt administrative fix of the problems created by WEPCO: "Shortly after passage of the House bill, the administration repudiated EPA's WEPCO policies and endorsed a comprehensive legislative resolution of the matter. The administraion also stated, in response to questions from the Senate Energy Committee, that EPA had ample authority under current law to reverse course on WEPCO. In view of these representations that legislation was not needed to deal with WEPCO, and because of concerns that the Senate WEPCO amendment could prevent EPA reversing course on WEPCO administratively, the conferees agreed to drop the limited WEPCO amendments in the bills. The conferees did not want todo anything that could be construed as restricting EPA's discretion to reconsider WEPCO."
12. Requirements for Preparation, Adoption, and Submittal of Implementation Plans; Approval and Promulgation of Implementation Plans; Standards of Performance for New Stationary Sources; Fed. Regist. 1992, 57, 32314.
13. Letter from William K. Reilly, EPA Administrator, to Congressman John D. Dingell, Chairman, Subcommittee on Oversight and Investigations, House Energy and Commerce Committee (April 19, 1989).
14. Notice of Availability; Alternatives for New Source Review (NSR) Applicability for Major Modifications; Solicitation of Comment; Fed. Regist. 1998, 63, 39860. EPA disavowed the exclusion of demand growth from predictions of utility units' future actual emissions. In 1998, EPA took the position that "the agency's promulgation of the WEPCO rule represented a departure from longstanding practice under which emissions increases that followed nonroutine and otherwise nonexempt changes at a source were presumed to result from the change."
15. Prevention of Significant Deterioration (PSD) and Non-Attainment New Source Review (NSR); Equipment Replacement Provision of the Routine Maintenace, Repair and Replacement Exclusion; Final Rule; Fed. Regist. 2003, 68, 61248.
16. Chevron vs. NRDC, 467 U.S. 837 (1984).
17. United States vs. Mead Corp., 533 U.S. 218 (2001).
18. United States vs. Duke Energy Corp., 2003 WL 22024780 (M.D.N.C. 2003).
19. United States vs. Ohio Edison Co., 2003 WL 21910738 (S.D. Ohio 2003).