The US EPA Publishes Notice of Proposed Consent Decree Requiring Review of NSPS and NESHAP for Certain Source Categories

In the Federal Register published on March 5, 2019, the Environmental Protection Agency (EPA) published a notice of a proposed consent decree for a citizen suit brought in federal court alleging the EPA Administrator failed to perform non-discretionary duties required by the Clean Air Act (CAA). The complaint alleges the Administrator failed to take action to review, and if appropriate revise, the following New Source Performance Standards (NSPS) and National Emissions Standards for Hazardous Air Pollutants (NESHAP) source categories:

  • the NSPS for Bulk Gasoline Terminals (40 CFR 60 Subpart XX),
  • the NSPS for Electric Arc Furnaces and Argon-Oxygen Decarburization Vessels in Steel Plants (40 CFR 60 Subpart AA),
  • the NESHAP for Gasoline Distribution Facilities (Bulk Gasoline Terminals and Pipeline Breakout Stations) (i.e., the “Major Source Bulk Gasoline NESHAP”)  (40 CFR 63 Subpart R),
  • the NESHAP for Gasoline Distribution Bulk Terminals, Bulk Plants, and Pipeline Facilities (i.e., the “Area Source Bulk Gasoline NESHAP”) (40 CFR 63 Subpart BBBBBB),
  • the NESHAP for Iron and Steel Foundries Area Sources (40 CFR 63 Subpart ZZZZZ), and
  • the NESHAP for Wood Preserving Area Sources (40 CFR 63 Subpart QQQQQQ).

These proposed consent decree would establish deadlines for the EPA to review these source categories and require the EPA to provide status reports every 180 days as to whether progress is being made towards meeting those deadlines. Comments on the proposed consent decree will be accepted until April 4, 2019.

The suit, Our Children’s Earth Foundation v. Wheeler, was filed on August 7, 2018 in the US District Court for the Northern District of California.


EPA, Notice, “Proposed Consent Decree, Clean Air Act Citizen Suit,” 84 Fed. Reg. 7,895 (Mar. 3, 2019),