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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Environmental

Date & Time
  • event Date

    Tuesday, October 17, 2023

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE webinar will discuss the history of the Clean Air Act's (CAA) affirmative defenses (ADs) and notable court decisions leading to the EPA's gradual elimination of ADs available to defendants including the new rule eliminating the AD for Title V violations in emergency situations. The panel will describe the effect on state programs and current legal challenges that may affect the new rule. The panel will address key issues and best practices for compliance and defense of enforcement actions.

Faculty

Joshua Wilson
Attorney
BakerHostetler

Mr. Wilson’s environmental practice includes bringing and defending litigation to advance client interests, successfully resolving administrative enforcement actions, navigating permitting and compliance obligations involved in business expansions, and holistically assessing and managing legal risks presented by expansions, acquisitions or new regulatory developments. He focuses on federal and state programs under the Clean Air Act, but his experience also involves a wide variety of regulations related to hazardous materials, waste, water, and human health and safety.

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Michael S. McDonough
Partner
Pillsbury Winthrop Shaw Pittman LLP

Mr. McDonough focuses on defending enforcement actions, bringing regulatory challenges, and litigating with regulatory agencies, including the EPA, the DOJ, and the California ARB, among others. He represents companies from a variety of industries, including energy production and importing, petroleum refining, freight transportation, consumer products, chemical manufacturing, and electronics manufacturing.

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Description

On July 21, 2023, the EPA issued a final rule eliminating AD provisions under Title V of the CAA for violations caused by emergency circumstances. The agency claims the AD is inconsistent with the enforcement structure of the CAA in light of prior court decisions such as Natural Resources Defense Council v. EPA, 749 F.3d 1055 (D.C. Cir. 2014). The rule is effective as of Aug. 21, 2023. And the EPA has instructed any states that have adopted similar AD provisions to remove those from their programs by Aug. 21, 2024.

This action signals the EPA's intent to rely on case-by-case enforcement decisions rather than categorical relief to impose liability for air permit violations as further demonstrated by the EPA's eliminating or omitting ADs for other areas covered under the CAA: e.g. New Source Performance Standards (81 FR 40956), Emission Guidelines for Major Sources (80 FR 72789), and the HESHAP for the Portland Cement Manufacturing Industry.

Yet, the EPA's position is currently being challenged in Env’t Comm. of the Florida Elec. Power Coordinating Grp. Inc. v. EPA, Case No. 15-1239 (D.C. Cir.) where a core issue is whether the EPA's interpretation that the NRDC holding on ADs extends beyond CAA Section 112 to other sections of the Act.

Listen as our expert panel describes the history of CAA affirmative defenses and notable court decisions leading to the EPA's current stance. The panel will discuss the current rule eliminating the Title V emergency AD and other similar actions taken by the EPA involving ADs. The panel will address legal challenges that may affect the new rule and best practices for compliance and defense of enforcement actions.

Outline

  1. Introduction
    1. History of CAA affirmative defenses
    2. Case law leading to EPA's removal/omission of ADs
      1. Natural Resources Defense Council v. EPA
      2. U.S. Sugar Corp. v. EPA
      3. Sierra Club v. EPA
  2. EPA's recent history of action involving ADs
    1. New source performance standards (81 FR 40956)
    2. Emission guidelines for major sources (80 FR 72789)
    3. NESHAP for the Portland Cement Manufacturing Industry
  3. The new rule eliminating the Title V emergency AD
  4. Legal challenges against the EPA that may affect the new rule
  5. Best practices for compliance and defending enforcement actions

Benefits

The panel will review these and other important issues:

  • What has led to the EPA's removal or omissions of ADs under the CAA?
  • How are state programs affected?
  • What challenges face defense counsel with the elimination of the emergency AD?
  • How may current legal challenges affect the new rule?
  • What are best practices for compliance and defending enforcement actions given the limited ADs available?