1. Peter Hsiao Kurt Wiese South Coast Air Quality Management District
Rediscovering the Clean Air Act ALI – ABA Environmental Litigation Course University of Colorado June 28, 2007
Peter Hsiao
Kurt Wiese
South Coast Air Quality Management District

2. Clean Air Act (CAA) Litigation
Challenges to EPA Rulemaking (or lack of rulemaking)
Enforcement Actions
New Source Review and Prevention of Significant Deterioration Program
Title V Operating Permit Program
Citizen’s Suits

3. Surprise Examination
What is the only pollutant regulated under the Clean Air Act that is not toxic?

4. Massachusetts v. EPA Standing
Special Rules For States
Injury in Fact
Redressability
Deference To The Agency v. Arbitrary and Capricious Decision-making

5. Alphabet Soup and the CAA
Title I – National Ambient Air Quality Standards
Delegated State Implementation Plans (SIP)
Attainment and Non-Attainment areas
New Source Review
Title V – Operating Permit Program
Permit Shield

6. New Source Review
1970 – New Source Performance Standards (NSPS)
1977 – New Source Review Program
Prevention of Significant Deterioration Program (PSD)
Best Available Control Technology
Non-Attainment New Source Review (NNSR)
Lowest Achievable Emission Rate (LAER)

7. Environmental Defense v. Duke Energy
Modification is “physical change or a change in its method of operation” that increases the amount or type of pollution.
NSPS – BACT when hourly emission changes
PSD by statute incorporates NSPS standard, by regulation incorporates “annual emission” standard

8. Statute of Limitations
Five year statute of limitations
PSD Preconstruction Permit
Continuing Violation

9. Title V – Operating Permits
State Gathers All Applicable Requirements
EPA Reviews and Objects
Permit Shield
Accurate disclosure
Compliance with permit is deemed compliance with applicable requirements
Determination that other requirements are not applicable

10. Piercing the Permit Shield?
Deficient Permit?
Continuous Violation
Statute of Limitations Extended