By Maureen N. Harbourt and R. Lee Vail

On April 7, 2011, the U.S. Court of Appeals for the District of Columbia issued a per curiam opinion denying petitioners’ motion to stay EPA from implementing the new 75 ppb 1-hour sulfur dioxide (SO2) National Ambient Air Quality Standard. Nat’l Env. Development Assn. Clean Air Project v. EPA, No. 10-1252, (D.C. Cir., Apr. 7, 2011). That standard was published by EPA at 75 Fed.Reg. 35520 (June 22, 2010). A number of industrial parties and two states – Texas and North Dakota – challenged the standard by filing petitions for reconsideration with EPA and petitions for judicial review with the D.C. Circuit. The Louisiana Department of Environmental Quality (LDEQ) intervened in the case to challenge the standard while the American Lung Association and the Environmental Defense Fund intervened to support the standard. In January 2011, EPA denied the petitions for reconsideration, clearing the way for the court litigation to move forward. Some of the parties sought a stay of implementation of the new rule until there is a final decision on the merits. The D.C. Circuit opinion on April 7, 2011, indicated that petitioners did not meet the stringent burden of staying EPA’s implementation of the standard while the litigation progresses. The per curiam opinion did not address the merits of the case. The court ordered the parties to submit a proposal for a briefing schedule by May 12, 2011. It is likely that oral argument will not be held until the last quarter 2011 or first quarter 2012.

This result means that states must complete their recommendations for designations of nonattainment, attainment and unclassifiable areas by June 2, 2011 and EPA must take final action on those designation recommendations by June 2, 2012. It is anticipated that two Louisiana parishes will be proposed for nonattainment classification – West Baton Rouge and St. Bernard. LDEQ must submit to EPA revisions to its State Implementation Plan to address requirements for sources in attainment and unclassifiable parishes by June 2, 2013 and must submit revisions to its SIP by February 2014 (18 mos. from EPA nonattainment designation) to address sources in nonattainment parishes to bring them into attainment by August 2017 (5 yrs. from EPA nonattainment designation). The denial of the stay also means that certain new source review requirements, including Prevention of Significant Deterioration NAAQS compliance demonstrations for new sources and major modifications, remain applicable as of the effective date of the rule (August 23, 2010).