Environmental -- active

Sierra Club v. EPA   (D.C. Circuit)

Challenge to affirmative defense for equipment malfunctions

In June, 2014, the Sierra Club challenged 9 EPA Clean Air Act rules in court, alleging that provisions in each rule are no longer valid as a result of a decision in April by the U.S. Court of Appeals for the D.C. Circuit. The provisions at issue allows companies an affirmative defense to civil penalties for exceeding emissions limits that are caused by malfunctions. A company must prove that the malfunction was sudden, infrequent, not reasonably preventable and not caused by poor maintenance or careless operation, and that it took steps to correct the malfunction and minimize resulting emissions.

In April, the court decided in Natural Resources Defense Council v. EPA to vacate portions of a Portland cement industry rule pertaining to the affirmative defense, finding that the EPA lacked the authority to create a defense applicable in federal court. This Sierra Club suit attempts to remove the defense from 9 other rules in which it arises, involving various industries and kinds of equipment. Challenges to regulations must be brought within 60 days of their promulgation unless the petition "is based solely on grounds arising after such sixtieth day . . . ." The suit claims that the NRDC case decision constitutes grounds arising after the rules were promulgated.

In July, the NAM and 13 other business associations filed a motion to intervene in the suit. Manufacturers will be negatively impacted if the suit is successful, since it could make them liable for permit violations arising from unavoidable equipment malfunctions. That liability can arise both from EPA citations and from citizen suits around the country.

The rules at issue govern chemical manufacturing, pulp and paper mills, steel pickling, marine tank vessel loading operations, industrial steam-generating units, nitric acid plants and others.

On July 25, the court ordered the case held in abeyance while the EPA decided on a pending administrative petition from the Sierra Club to revise the rules. The EPA granted the petition, and on 12/17/14, the court held this case in abeyance until the EPA completes the rules revision process.

Related Documents:
NAM Motion to Intervene  (July 17, 2014)


Environmental -- 2018

Sierra Club v. EPA   (D.C. Circuit)

Boiler MACT reconsideration rule

The EPA granted a petition from the Sierra Club and others to reconsider parts of its rule for new and existing industrial, commercial, and institutional boilers and process heaters. The rule was written to require the maximum degree of reduction in emissions of hazardous air pollutants that is achievable, taking into consideration the cost of achieving such reductions. Thus, the rule requires “maximum achievable control technology” (MACT) for such equipment. However, the rule does not require a numerical standard during boiler startup and shutdown given the fact that is not “feasible” to determine pollution levels during these times.

The EPA issued final revisions in its 2015 Boiler Rule, and the Sierra Club sued. Manufacturers would bear a large burden and financial hardship if the Sierra Club prevails in its challenge to this rule.

The NAM was granted leave to intervene in support of the EPA and the 2015 Rule. There are two primary issues in the case: (1) whether the EPA properly established a minimum standard level of 130 parts per million (ppm) of carbon monoxide for certain boiler emissions, and (2) whether the EPA reasonably established work practice standards for periods of startup and shutdown where it is impracticable to determine compliance with numerical standards during those periods.

The court ruled on March 16, 2018. First, the court found that the limit of 130 ppm for carbon monoxide as a proxy for hazardous air pollutants is not reasonable because the EPA’s own data contradicts EPA’s conclusion that no further emissions reductions are possible below that amount. In support of the 130 ppm limit, EPA relied on data that it had previously criticized as inaccurate. Significantly, however, EPA remanded but did not vacate this aspect of the rule. EPA should be able to substantiate this limit on remand with better support.

Second, the court held that the rule’s flexibility on emissions during startup and shutdown of the boilers is reasonable and consistent with the Clean Air Act because there is significant variability in the time and emissions profiles of boilers during startup/shutdown and the rule still requires controls "as expeditiously as possible" during startup and shutdown.

The plaintiffs filed a petition for rehearing with the court, which the NAM opposed. On July 5, 2018, the court denied the rehearing request.

Related Documents:
NAM Petition  (June 5, 2018)
NAM intervenor brief  (November 16, 2016)
NAM motion to intervene  (February 18, 2016)


Environmental -- 2017

Sierra Club v. EPA   (D.C. Circuit)

Defending EPA's sulfur dioxide regulation against accelerated enforcement

The NAM is a member of the NAAQS Implementation Coalition, which joined in a motion to intervene in a suit brought by the Sierra Club and Natural Resources Defense Council against the EPA for its regulation on sulfur dioxide (SO2). The regulation, published August 5, 2013, designated 29 areas as "nonattainment" for SO2 based on recorded air quality monitoring data, and the EPA announced its intention to address the regulation of the rest of the country in separate regulations in the future. The Sierra Club sued, and is expected to argue that the EPA should use computer modeling to estimate which areas of the country are in "nonattainment" now, rather than waiting for actual monitoring data.

Our intervention is intended to allow us to argue that the modeling predictions urged by the Sierra Club will allow areas to be designated as nonattainment when in fact they are not. That will increase the number of such areas, and manufacturers will have to spend billions of dollars to achieve far greater emission reductions than would be required if designations were based on actual air quality monitoring data.

On 3/2/15, a federal judge approved a consent decree requiring the EPA to publish SO2 NAAQS within 16 months and take further action thereafter on all areas of the country that have not yet been designated for a primary SO2 NAAQS. The areas to be designated include any areas with stationary sources that emitted more than 16,000 tons of SO2 in 2012 or emitted more than 2,600 tons and had an annual average emission rate of 0.45 lbs. SO2/Mmbtu or higher in 2012.

The consent decree was appealed to the Ninth Circuit, which affirmed the district court's approval of it on August 28, 2017. The consent decree extends the timeline for the EPA to promulgate a new rule. The deadline is now December 31, 2020, and will allow for real-life modeling data to be used instead of the Sierra Club's recommendation of computer modeling. This is a favorable outcome for manufacturers.

Related Documents:
Motion to Intervene  (November 4, 2013)


Environmental -- 2014

Sierra Club v. EPA   (D.C. Circuit)

Whether carbon dioxide must be considered in EPA PSD permits

In the Deseret Power decision in 2008, the EPA Environmental Appeals Board rejected the Sierra Club's contention that preconstruction permits for new power plants must include "best available control technology" (BACT) for carbon dioxide, but sent the case back to the EPA to reconsider whether to impose the requirement under its discretionary authority, and to develop an adequate record for its decision. It encouraged the EPA to consider whether the issue in this case should be resolved "in the context of an action of nationwide scope, rather than through this specific permitting proceeding."

On Sept. 14, 2010, the court ordered the case held in abeyance pending the outcome of other greenhouse gas cases. Former EPA Administrator Stephen Johnson issued an interpretative guidance memorandum on Dec. 18, 2008, that concluded that PSD permits (for the Prevention of Significant Deterioration of air quality) do not need to include BACT limits for greenhouse gases. The Sierra Club challenged that guidance, while the NAM and other business organizations supported it.

Our motion to intervene, filed 2/13/09, outlined why this case will have a substantial impact on many manufacturers, and why the EPA, which represents the general public interest, will not adequately represent the interests of the business community.

On Feb. 17, 2009, EPA Administrator Lisa Jackson granted a Sierra Club petition for reconsideration of the Johnson memo, and permitted public comment on the matter. The D.C. Circuit stayed the litigation.

On April 2, 2010, EPA completed its reconsideration of the Johnson memo and published a new "Subject to Regulation" notice that made January 2, 2011 the date on which greenhouse gas emissions were regulated. On June 9, EPA asked the court to hold the case in abeyance while other litigation over its GHG regulation was resolved. The NAM opposed this motion, saying that the issues in this case are being addressed in other greenhouse gas cases, and the environmental groups here should not be allowed to have a second chance to litigate should they lose in those other cases. We also opposed an effort to allow the Center for Biological Diversity to switch its challenge from those cases into this one, as that could create competing panels of judges reviewing the same issues. Ultimately, the case was held in abeyance and finally dismissed in 2014 after the Supreme Court ruled in Utility Air Regulatory Group v. EPA, partially upholding EPA regulation of greenhouse gases, but limited its scope under the PSD program.

Related Documents:
NAM Opposition to EPA's Procedural Motion  (June 22, 2010)
NAM Motion to Intervene  (February 13, 2009)


Environmental -- 2013

Sierra Club v. County of Solano   (Cal. Ct. App.)

County restrictions on solid waste disposal

Solano County, California, voters passed Measure E in 1984, which obstructed regional waste management by drastically limiting the volume of solid waste that could be brought into the county for disposal or recycling. It sets a low limit on waste from other counties in California, and the county stopped enforcing it after receiving legal opinions that it violated the Commerce Clause because it discriminates against and excludes waste by place of origin.

The Sierra Club and other environmental groups sued to enforce Measure E as written. The trial judge rewrote the law to apply only to other California counties, but not to waste generated outside of the state. That ruling was appealed.

The NAM and other organizations filed an amicus brief arguing that protectionist barriers like these have been struck down for decades because they interfere with interstate commerce. Simply limiting the reach of the measure to other California counties does not eliminate this problem. Solano County and thousands of others throughout the nation cannot "stand alone as economic islands around which the free flow of commerce may be diverted. Building a virtual wall around [the county] has a profound impact on the market for solid waste as an article of interstate commerce."

We urged an appeals court in California to reject laws like this that can create a patchwork of discriminatory and protectionist solid waste bans from cities and counties across the country. Allowing bans like this could lead to similar restrictions against many other goods and services, not merely solid waste, and would allow local entities to achieve what the states are prohibited from doing. The impact would be to dramatically undermine a national market of solid waste management and disposal, and could expose billions of dollars of other economic activity to discrimination by thousands of local governments.

On 7/31/2013, the court of appeal reversed the trial court's ruling and dismissed the case as moot, because California had enacted a new law (AB 845) that prohibits restrictions on the importation of solid waste based on the place of origin of the waste.

Related Documents:
NAM brief  (September 6, 2011)


Sierra Club v. EPA   (N.D. Cal.)

Intervention in suit that would force EPA to act on ozone

The NAM and 12 other groups moved to intervene in this suit brought by the Sierra Club over EPA's regulation of ozone. The Sierra Club and other environmental groups filed the suit to force EPA to complete its review and revision of the national ambient air quality standards (NAAQS) for ozone. EPA lowered the standard to 75 ppb in March of 2008, and now the environmental groups are trying to force EPA to take steps to finalize an additional lowering of the standard by September, 2014. The Clean Air Act requires EPA to review NAAQS every 5 years and make revisions "as may be appropriate . . . ."

The NAM group moved to intervene to help prevent the adoption of more stringent NAAQS demanded by the environmental groups. Any lowering of the standard will result in additional costly and burdensome control requirements, new emission reduction requirements, and fees, and manufacturers need to have adequate time to develop and present information to EPA concerning the present standard and a possible revision. Forcing EPA to act hurriedly "would frustrate the development of sound scientific support on the need for NAAQS revisions." The proposed timetable would make EPA "finalize its risk assessment and policy analysis, complete its consultation with CASAC [an advisory committee], publish a proposed rule in the Federal Register, solicit comments, review those comments and respond to them as necessary, send its final rule to the Office of Management and Budget for mandatory review, and publish the final rule in the Federal Register, all in the span of one year or less." This would require EPA to truncate the public comment period, to the detriment of the public and the regulated community.

Joining the NAM in the motion to intervene were the American Forest & Paper Association (“AF&PA”), American Fuel and Petrochemical Manufacturers (“AFPM”), American Iron and Steel Institute (“AISI”), American Petroleum Institute (“API”), American Wood Council (“AWC”), Automotive Aftermarket Industry Association (“AAIA”), Brick Industry Association (“BIA”), Council of Industrial Boiler Owners (“CIBO”), Independent Petroleum Association of America (“IPAA”), National Mining Association (“NMA”), Treated Wood Council (“TWC”), and Utility Air Regulatory Group (“UARG”).

On 8/20/13, the environmental groups and EPA jointly asked the court to delay further filings for 3 months while they engage in settlement discussions.

On 10/9/13, the court denied our motion to intervene, concluding "that EPA will represent adequately any interests that Proposed Intervenors might have in setting a rulemaking schedule." The judge declined to recognize that we had a "significant protectable interest" in the litigation because the rulemaking deadlines are statutory and non-discretionary. We continue to be concerned that EPA will be forced to settle its way into a rushed timeline for this regulation.

On April 29, 2014, the court ordered EPA to propose a new standard by December 1, 2014 and to finalize it by October 1, 2015. EPA had wanted an extra 45 days, but that request was denied.

Related Documents:
NAM Reply Motion  (September 6, 2013)
NAM Motion to Intervene  (August 16, 2013)


Environmental -- 2012

Sierra Club v. EPA   (D.C. Circuit)

Environmental group's challenge of EPA's delay of the effective dates of its boiler rule and incinerator rule

The NAM and other groups moved to intervene in a law suit brought by the Sierra Club against EPA over the agency's decision to delay the effective date of new regulations on boilers and incinerators. The rules, issued on March 21, 2011, concern major source industrial boilers and commercial and industrial solid waste incinerators. When it published the rules, EPA announced that it would initiate administrative reconsideration of them, and later delayed the effective dates during the reconsideration period. Our intervention in this case was intended to support the EPA's decision to delay implementation.

At the same time, the NAM challenged the boiler MACT and incinerator rules themselves. The rules have the potential to dramatically impact the U.S. economy and impose enormous costs on key industrial sectors, and they force companies to make compliance investment decisions well in advance of their effective dates.

This suit by the Sierra Club was voluntarily dismissed on March 29, 2012. A similar suit brought in federal district court ended when the court invalidated EPA's delay notice.

Related Documents:
NAM Motion to Intervene  (August 15, 2011)


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