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Powered by the attorneys of Bracewell & Giuliani, Energy Legal Blog® is your resource for updates and analysis on national and global energy issues.
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  1. 9th Circuit Appeals Court: Clean Air Act Permits Must Address Latest EPA Requirements

    Wednesday, August 13, 2014 2:58 pm by , , and

    On August 12, 2014, the 9th Circuit Court of Appeals overturned a Prevention of Significant Deterioration (PSD) permit issued under the Clean Air Act (CAA) by EPA to the Avenal Power Center.  Sierra Club v. EPA, No. 11-73342 (9th Cir. Aug. 12, 2014).  The PSD permit authorized the construction of a 600 MW natural gas-fired plant located in California’s San Joaquin Valley.  The plant was required to install state-of-the-art pollution controls for all traditionally regulated pollutants, such as nitrogen oxides, particulate matter, and carbon monoxide.  The Court vacated the PSD permit because it found it was improper for EPA to issue a PSD permit that did not address new CAA requirements that were promulgated by EPA after the application was submitted.

    Although EPA has the authority to grandfather pending applications, it must exercise that authority through regulation by setting an effective date for the new regulation which would make the regulation applicable to permit applications submitted after a given date.  When EPA does not address grandfathering in its regulations, the court stated that all PSD permits that are not final prior to the effective date of the new rule must be revised to address any new regulatory requirement, even if the permit had already been through the public comment process.  The Court implied that any new assessment would likely need to go through a separate public comment process.  (more…)


  2. EPA Considering Major Changes to Risk Management Program

    Monday, August 11, 2014 12:49 pm by and

    Spurred by several recent industrial incidents, both onshore and offshore, the U.S. Environmental Protection Agency has announced several potential revisions to its Clean Air Act Risk Management Program (RMP) regulations.  The RMP program Request for Information (2014 RMP RFI) contemplates a vast array of changes that could, on the one hand, increase the number of sources regulated, e.g., the addition of ammonium nitrate as a regulated substance; and on the other, increase the costs of those sources currently regulated, e.g., mandatory third-party audits, installation of automated detection and monitoring systems.

    Other proposed changes could be controversial or simply difficult for sources to integrate, e.g., mandatory root cause investigations, siting requirements, mandatory disclosure of chemicals and accident history for the facility.  At this time, EPA indicates that it is not committed to undertaking a rulemaking and that it is engaged only in information gathering to assess whether changes to the RMP are necessary.  Comments on the RFI must be received by October 29, 2014.  (more…)


  3. INFOGRAPHIC: EPA’s Regulatory Timeline for Disclosure and Reporting of Hydraulic Fracturing Chemicals

    Monday, July 28, 2014 9:18 am by

    In May 2014, the U.S. Environmental Protection Agency published an Advanced Notice of Proposed Rulemaking (ANPR) seeking comments on its proposed rule regarding disclosure and reporting requirements for chemicals used in hydraulic fracturing. Comments for this proposed rule for the upstream shale industry are due September 18, 2014.

    For a printable version of this infographic, please click here.


  4. DOT Proposes Crude-by-Rail Safety Changes

    Wednesday, July 23, 2014 1:46 pm by

    Earlier today, the Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) released two proposals designed to enhance the safety of the transportation of crude by rail. The first, short proposal seeks comments on a potential rulemaking which would increase the oil-spill planning required for crude by rail transport. The second, more lengthy proposal seeks comments on a suite of enhancements intended to enhance the safety of rail transportation itself. (more…)


  5. EPA Adopts Quality Assurance Program to Reduce RIN Fraud

    Friday, July 18, 2014 9:13 am by

    To address past issues associated with invalid Renewable Identification Numbers (RINs) generated for compliance with the renewable fuels standard (RFS), EPA has established a voluntary quality-assurance program (QAP).  79 Fed. Reg. 42,078 (July 18, 2014).

    Types of RINs Available

    Under the voluntary QAP, independent third-party auditors can certify the validity of various types of RINs.  Three of the four types of RINs available to establish compliance under the RFS program are verified RINs: (more…)


  6. Supreme Court Limits EPA’s GHG Permitting Authority and Creates Questions Regarding Implementation

    Monday, June 30, 2014 3:24 pm by , , and

    On Monday, June 23, the U.S. Supreme Court issued its long awaited decision in UARG v. EPA, the case that questioned EPA’s authority to require stationary sources to obtain Prevention of Significant Deterioration (PSD) and Title V air permits for greenhouse gases (GHGs).  Specifically, the Court considered:  (1) whether a stationary source can be required to obtain a PSD or Title V air permit based solely on its potential to emit GHGs and (2) whether sources that have to obtain PSD and Title V permits based on their potential to emit traditional criteria pollutants (so called “anyway sources”) must also obtain a permit limit based on the Best Available Control Technology (BACT) for controlling GHG emissions.  Ultimately, the Court held that GHG emissions alone cannot trigger an obligation to obtain a PSD or Title V permit, but that EPA can require a source to have a BACT limit for GHGs in its PSD permit if the source is required to obtain a PSD permit for any other pollutant. (more…)


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