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"Duking" It Out

Law360 (April 30, 2007, 12:00 AM EDT) -- On April 2, 2007, the U.S. Supreme Court addressed what constitutes a “modification” at a facility that will trigger new source review (NSR) under the Clean Air Act (CAA). Environmental Defense v. Duke Energy Corp., No.05-848.

The decision is “round one” on the modification question, with the case remanded to the lower court for additional proceedings.

A final decision will affect all industrial plants subject to NSR and air permitting under prevention of significant deterioration (PSD) regulations.

Under NSR, major modifications—large emission increases resulting from physical...
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