The rule, which focuses on detecting and repairing methane leaks, would have required oil and gas well owners and operators to complete initial monitoring by June 3, 2017. Petitioners ague that EPA lacks the authority to issue a stay of finalized regulations under the Clean Air Act other than pursuant to 42 U.S.C. § 7607(d)(7)(B), which requires identification of an objection of central relevance to the rule that could not have been raised during the initial public comment period. The groups claim that these conditions are not satisfied, as all the issues relied on by EPA were extensively deliberated during the public comment period, or at least could have been, and in any event are not centrally relevant.

, and in a fairly stinging rebuke to EPA the Court of Appeals issued a per curiam decision on August 17, 2018 vacating the June 2017 rulemaking. The Court found that Section 307(d)(7)(B) of the Clean Air Act, 42 U.S.C. § 7607(d)(7)(B), unambiguously limited EPA to a maximum three-month delay of its own rule. …regardless whether EPA “believe[s] that three months [is] insufficient to complete the necessary steps in the reconsideration process,” … that is not EPA’s call.

“Final actions” of the EPA under the Clean Air Act are subject to direct review by a United States Court of Appeals. 42 U.S.C. § 7607(b)(1). In a decision issued on July 3, 2014, in Luminant Generation Company, LLC v. United States Environmental Protection Agency, No. 12-60694 (5th Cir. 2014), the United States Court of Appeals for the Fifth Circuit considered for the first time whether an EPA notice of violation issued under the Clean Air Act constituted an EPA final action.

fies six factors for EPA to use in evaluating the source’s intent:1. The amount of time the facility has been out of operation.2. The reason for the shutdown.3. Statements by the owner or operator regarding intent.4. Cost and time required to reactivate the facility.5. Status of permits.6. Ongoing maintenance and inspections conducted during the shutdown.The Final Determination for the Refinery goes a step beyond Monroe to document its comprehensive explanation and legal bases for the Reactivation Policy. An attachment to the Final Determination states that it is provided to serve as a “reaffirmation” of the Reactivation Policy. The Final Determination also engages in a lengthy discussion of the application of the Reactivation Policy to the Refinery, concluding, in laborious detail, that the Refinery had been completely shut down since 2012 and thus would be subject to new source PSD permitting.The Court’s DecisionThe Third Circuit Court of Appeals reviewed the Final Determination per 42 U.S.C. §7607(b)(1). This on-the-record review concluded that the Reactivation Policy does not apply to the Refinery based on the unambiguous language of the CAA. As a result, the Court determined that EPA exceeded its authority by requiring Port Hamilton to obtain a PSD Permit:The Clean Air Act unambiguously limits the PSD’s program’s application to newly constructed or modified facilities. The Refinery is not new and has not undergone a “modification” as the Act defines that term. The EPA therefore exceeded its authority by requiring Port Hamilton to obtain a PSD permit for the Refinery.The Court explained that the only facilities subject to PSD permitting are those major emitting facilities “constructed” (or modified) in an attainment area after August 7, 1977. As the Refinery was constructed prior to August 7, 1977, and EPA did not present any evidence of a “major modification,” EPA had no authority to apply PSD review.Further, the Court rejected conducting a Chevron analysis. The Court rejected EPA’

Several environmental groups challenged this decision in the US Court of Appeals for the DC Circuit. They also petitioned the EPA to reconsider its decision under Section 307(d) of the Clean Air Act (CAA) (42 U.S.C. § 7607(d)(7)(B)).On June 30, EPA Administrator Michael Regan announced that the EPA was, effectively immediately, “withdrawing, revoking and rescinding” its prior conditional approval.

February saw the usual array of significant environmental decisions and federal regulatory notices.THE FEDERAL COURTSU.S. Court of Appeals for the District of ColumbiaLuminant Generation v. EPA The court will be grappling with a difficult venue case governed by the Clean Air Act (42 USC Section 7607(b)). In 2013, the U.S. Court of Appeals for the Fifth Circuit decided the case of Luminant Generation v. EPA (714 F. 3d 841), in which the court upheld the affirmative defenses that were made part of the Texas State Implementation Plan (SIP) and which applied to certain unpermitted emissions from regulated sources during periods of startup, shutdown or malfunction.

One of the important issues the Court decided was whether it had jurisdiction under the CAA to hear that part of the case related to the Minnesota State Implementation Plan’s (SIP) reliance on the Transport Rule. Reviewing 42 U.S. C. § 7607(b), two of the three panel judges, held that the Eighth Circuit has jurisdiction because the SIP’s reliance on the Transport Rule was based on local issues and was not nationwide in scope and effect, which would have forced this case to the D.C. Circuit.Ninth CircuitCourt of AppealsStanding Found to Challenge Services’ Failure to Regulate Disposal of Spent Lead Ammunition in National Forest. On January 12, the Court, in Center for Biological Diversity, et al., v. U.S. Forest Serv., in an unpublished opinion, reversed the district court’s dismissal of a RCRA citizens suit filed against the Service which alleged that the Service violated the RCRA by failing to regulate the disposal of spent lead ammunition in a national forest.

[13]Murray Energy, et al. v. EPA, et al., No. 14-1112 (June 9, 2015).[14] Any challenges to the Clean Power Plan filed before the publication of the Final Rule in the Federal Register are likely to be rejected as premature under 42 U.S.C. § 7607(b)(1).[15] Application for Administrative Stay by the State of West Virginia and 15 Other States, at 1.[16]Id.

19, 2012); and Chemical Manufacturing Area Sources, 77 Fed. Reg. 75,740 (Dec. 21, 2012). Assuming that the Sierra Club can bypass the sixty day statute of limitations for challenging these rules by invoking the “grounds arising after” clause in 42 U.S.C. § 7607(b), there is a significant likelihood that they will be successful with their challenge. Given the number of industries that may be impacted by a remand of the above cited rule, this case will be important to monitor.

Citing decisions from the 7th, 8th and 9th Circuits, the court observed that Title V subjects permitting to administrative review procedures appealable exclusively to the courts of appeals. 42 U.S.C. §7607(b)(2). Collateral appeal of a permit in the context of enforcement actions before the district courts is not allowed.