EPA Proposes Expansive Rule on Petroleum Refineries

Bracewell & Giuliani LLP
Richard Alonso and Grant B. MacIntyre USA

May 16, 2014

The U.S. Environmental Protection Agency has proposed an expansive rule that would impose additional requirements at petroleum refineries. The proposed rule (which spans 813 pages) is scheduled to be published in the Federal Register, and interested parties will have 60 days from publication to file public comments.

The proposal is a response to a lawsuit from environmental and public health groups alleging that EPA missed statutory deadlines to review the existing refinery Maximum Achievable Control Technology (MACT) rules. EPA settled the litigation, agreeing to either propose additional regulations or propose a determination that additional regulations are not necessary. EPA has decided to propose additional regulations and is required to take final action on the proposal by April 17, 2015.

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EPA Seeks Public Comment on Fracking Fluid Disclosure Rules

Baker & Hostetler LLP
Daniel M. Kavouras

May 14, 2014

On Friday, the Environmental Protection Agency took the first step toward requiring drillers to disclose the chemicals used in hydraulic fracturing operations, releasing an “advanced notice of proposed rulemaking” seeking public comment on the topic.

The EPA has not yet drafted a proposed regulation, but said in the notice that it will consider both mandatory and voluntary rules. The EPA explained that the “mechanism could be regulatory (under [Toxic Substances Control Act] Section 8(a) and/or Section 8(d)), voluntary, or a combination of both, and could include best management practices, third-party certification and collection, and incentives for disclosure of this information.”

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Judicial Review of a Superfund Clean-up Can Proceed in Stages

Schiff Hardin LLP
Ashley L. Thompson and J. Michael Showalter USA

May 8, 2014

A recent Seventh Circuit decision addressed the contours of the general statement that USEPA’s decisions in an “on-going” remediation may not be challenged under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). CERCLA Section 113(h)(4) provides that “[n]o Federal court shall have jurisdiction . . . to review any challenges to removal or remedial action” except during a limited number of actions, none of which allow a plaintiff to challenge an ongoing response action. 42 U.S.C. § 9613(h)(4). Generally, courts applying this provision have found that parties are prohibited from reviewing ongoing clean-up activities under CERCLA.

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Supreme Court Reinstates Cross-State Air Pollution Rule

Perkins Coie LLP
Tyler G. Welti, William (Bill) Pedersen and Alexandra Magill Bromer

May 2, 2014

On April 29, 2014, the Supreme Court by a 6-2 vote reversed the D.C. Circuit and upheld the Environmental Protection Agency’s Transport Rule, which imposed specific Clean Air Act limits on emissions in certain states to prevent them from “contribut[ing] significantly” to failure to attain air quality standards in other states. See EPA v. EME Homer City Generation, L.P., Case No. 12-1182, 2014 WL 1672044 (U.S. Apr. 29, 2014).

The Clean Air Act’s Cooperative Federalism Model

The case involves a portion of the Clean Air Act that follows a “cooperative federalism” model for reducing air pollution. It charges states in the first instance with establishing plans to achieve national ambient air quality standards (NAAQS) set by EPA. See 42 U.S.C. §§ 7408, 7409.

Once EPA sets such a standard, each state must submit to EPA a State Implementation Plan, or SIP, to EPA to attain it. Id. § 7410(a)(1). A SIP must also “contain adequate provisions . . . prohibiting . . . any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will . . . contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any [NAAQS].” Id. § 7410(a)(2)(D) (emphasis added). If EPA determines that a SIP is inadequate, EPA has two years to issue a superseding Federal Implementation Plan for the state. Id. § 7410(c)(1).

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