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American Chemistry Council v. EPA   (D.C. Circuit)

Risk Management Program litigation

The NAM joined with the American Chemistry Council, American Forest & Paper Association, American Fuel & Petrochemical Manufacturers, American Petroleum Institute and the Chamber of Commerce in asking a federal appeals court to review the EPA's new rule on Risk Management Programs under the Clean Air Act. The rule, published on Jan. 13, 2017, revises an existing rule that is designed to reduce chemical hazards and related accidental releases. The court will determine the validity of the new rule.

While the case is pending, EPA will be considering the associations' Petition for Reconsideration of the rule. Our Feb. 28 petition and request for a 90-day stay argues that the final rule raises significant security concerns and compliance issues that will cause irreparable harm to manufacturers, requring them to make available sensitive information that could expose plant vulnerabilities. The rule also imposes costly audit requirements for "each covered process" without justification, and the agency failed to conduct an adequate assessment of the costs and benefits.

On March 13, in response to our petition for reconsideration, EPA granted a stay of the rule until June 19, 2017. This will give the agency time to review our concerns and will temporarily suspend the compliance burden.

Related Documents:
Petition for review  (March 13, 2017)
Petition to EPA for reconsideration  (February 28, 2017)


American Petroleum Institute v. EPA   (D.C. Circuit)

Challenging EPA's new rules on definition of solid waste

This case again calls for clear statutory limits on EPA’s Resource Conservation and Recovery Act (RCRA) jurisdiction to regulate “solid waste,” a term Congress defined to mean “discarded” material. The statute defines “hazardous waste” as “solid waste” that may pose a danger to human health or the environment. Hazardous waste is subject to a range of stringent regulatory obligations, governing generation, treatment, storage, disposal, and permitting. Because by statute hazardous waste is a subset of solid waste, EPA’s jurisdiction is limited to those materials that constitute solid waste.

The NAM and the American Chemistry Council filed a petition in federal court 4/13/15 to review new rules that define hazardous solid waste. The definition is important to manufacturers that reuse materials in the manufacturing process, as well as for disposal and recycling procedures. Hazardous solid waste is regulated with stricter requirements, and EPA imposes new documentation and certification requirements on facilities that reclaim hazardous secondary materials for reuse.

Our suit was consolidated with one filed in 2009 by the American Petroleum Institute. On 5/11/15, we moved to intervene in a challenge to the solid waste rule by California Communities Against Toxics, which was also consolidated into this case.

The NAM filed its main brief on the merits in December. The rule exceeds the agency's authority, and our principal concerns relate to new affirmative duties and conditions on in-process materials that are not discarded. RCRA allows the EPA to regulate solid waste, but it is trying to regulate materials that are not yet waste; that is, they are not disposed of, abandoned, or thrown away. The rule affects the primary metals sector, recycling, petroleum production, chemicals and many other sectors.

On April 18, we filed a brief responding to a challenge by environmental groups to some of EPA's decisions. They argued that the Verified Recycler Exclusion is unlawful because it was made without notice-and-comment and because it violates the RCRA and APA because it excludes certain materials from the definition of solid waste. We argued that the VRE fit the definition of a logical outgrowth of the earlier 2011 plan the EPA put out, the petitioners engaged in the notice-and-comment process at that time, and that any new challenges must be waived because they were not addressed to the EPA during rulemaking.

Our reply to EPA's defense was filed on May 19. The case was argued on November 3.

Related Documents:
NAM reply brief  (May 19, 2016)
Opening brief of industry petitioners  (December 9, 2015)


Murray Energy Corp. v. EPA   (D.C. Circuit)

Challenging 2015 ozone standard

The NAM and other associations filed a petition to review EPA's final rule lowering the ozone National Ambient Air Quality Standard (NAAQS) from 75 to 70 parts per billion. The rule could be one of the most expensive in history, and is overly burdensome for manufacturers. Further incremental improvements in ozone levels in many areas will be very difficult and expensive to achieve, since ozone levels are down more than 30 percent since 1980 and the previous standard is already stringent.

Joining in the petition for review with the NAM are the Chamber of Commerce, American Coke & Coal Chemicals Institute, American Fuel & Petrochemical Manufacturers, American Petroleum Institute, Independent Petroleum Association of America, National Oilseed Processors Association, Portland Cement Association, and Utility Air Regulatory Group. The case will be briefed in 2016, with oral arguments coming possibly in the fall.

On Jan. 25, the NAM, our coalition partners, and several additional new coalition partners moved to intervene in a suit brought by the Sierra Club and other environmental groups that want to lower the standard even further. All of these cases have been consolidated.

On April 22, we filed our opening brief. In our brief, we argue that EPA failed to take adequate account of the impact of uncontrollable background levels of ozone in preventing achievement of the new standards; that the defects cannot be cured by EPA’s reliance on alternative regulatory mechanisms; EPA failed to take into account relevant contextual factors, including the adverse economic, social, and energy impacts of adopting these stricter standards; and EPA did not provide a reasoned explanation for changing its conclusions drawn from the same basic underlying scientific evidence considered in the prior ozone standard revision.

On August 17, we filed our intervenor brief arguing that the environmental groups’ arguments that EPA was required to make the ozone standard even more stringent do not have merit. EPA is not required to set ozone levels that would prevent all adverse effects, but it must consider multiple factors in determining the correct level to protect public health. EPA justified its decision not to make the ozone standard even stricter, and the environmental groups’ arguments that the standard should be stricter are inconsistent with EPA’s actions. In addition, EPA’s action concerning ozone permitting represented a reasonable exercise of its discretion to interpret the statute and should be upheld.

On Sept. 14, we filed our reply brief responding to EPA's defenses to our challenges. We reaffirmed arguments made earlier in this case, focusing on EPA's failure to account for the impact of background ozone on the ability of states to meet the requirements of the standard, its failure to consider the overall impact of the standard in the context of the public's risk tolerance, and its failure to provide adequate explanations for changing some of its conclusions regarding acceptable levels of ozone.

Oral argument, originally scheduled for April 19, 2017, was indefinitely suspented on April 11 while the Trump Administration reviews the 2015 ozone standard.

Related Documents:
Industry Reply Brief  (September 14, 2016)
Intervenor Brief  (August 17, 2016)
Opening Brief  (April 22, 2016)
Statement of Issues  (January 25, 2016)
Motion to intervene in Sierra Club challenge  (January 22, 2016)
Shopfloor blog  (December 23, 2015)


North Dakota v. EPA   (D.C. Circuit)

Challenge to EPA's New Source Performance Standards (NSPS) for greenhouse gases from electric utilities

The Environmental Protection Agency issued a set of regulations in October, 2015, governing greenhouse gas emissions from electric power plants. One covered existing units, and is the subject of separate litigation here. The other sets carbon pollution standards for new, modified and reconstructed power plants.

On December 18, the NAM and other associations in our coalition filed a petition for review in a federal appeals court. Our case was consolidated into 13 cases previously filed by North Dakota and other states and petitioners.

We are concerned that EPA's new rules will eliminate coal-fired power plants from the mix of energy sources available to manufacturers, raising costs and threatening the reliability of the electric grid. As consumers of one-third of our nation's energy, manufacturers are put at a competitive disadvantage by this regulation.

The NAM and a variety of other industry groups, power companies and unions filed our main brief on the merits on Oct. 13, 2016. In our brief, we argue that EPA exceeded its authority by determining that the best system of emission reduction for new coal-fired power plants is to require carbon capture and storage in deep underground saline formations. This process will require pipelines and the construction of deep new wells at locations with suitable geologic formations, involving costly and energy-intensive work. EPA cannot establish that such formations are available throughout the country.

We also said that EPA has not met the requirement that it show that the new emissions standard is achievable, because the technology required to achieve it is not demonstrated or available for full-scale application on a widespread scale. Instead, the regulation is based on Department of Energy engineering estimates of a hypothetical power plant.

EPA’s analysis of the best system of emission reduction for modified and reconstructed steam generating units was minimal, and insufficient to satisfy the statutory requirements for imposing new regulatory requirements. It admitted that it did not have information regarding design factors and operation and maintenance practices that must form the basis for determining that a performance standard is achievable.

On March 28, 2017, EPA moved to hold this case in abeyance pending EPA's review of the rule pursuant to an Executive Order from President Trump. Our coalition filed a brief in support, and on March 28, the court agreed. Status reports will be filed every 30 days, and the court ordered supplemental briefing by May 15 on whether the case should be remanded to the EPA rather than held in abeyance.

Related Documents:
Brief on the merits  (October 13, 2016)
Preliminary statement of issues  (January 25, 2016)


North Dakota v. EPA   (D.C. Circuit)

Challenging EPA's denial of reconsideration of Clean Power Plan

On 2/16/17, the NAM and other associations moved to intervene is a case brought by North Dakota challenging EPA's latest action on its Clean Power Plan (CPP). The agency rejected a petition to reconsider the rule, and that decision is now being challenged in court. The case is likely to be affected by the court's soon-to-be-issued ruling in our main challenge to the CPP rule, since the procedural and substantive defects in the petition for reconsideration overlap significantly with the issues raised in the case already before the court. A motion to hold the case in abeyance pending EPA reconsideration has been filed.

Related Documents:
Motion to Intervene  (February 16, 2017)


Sierra Club v. EPA   (D.C. Circuit)

Boiler MACT reconsideration rule

This is another in a series of cases challenging emissions limits. 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.

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 EPA and the 2015 Rule. There are two primary issues in the case: (1) whether EPA properly established a minimum standard level of 130 parts per million of carbon monoxide for certain boiler emissions, and (2) whether 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.

Briefing was completed on Feb. 6, 2017.

Related Documents:
NAM motion to intervene  (February 18, 2016)


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 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 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 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 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 that 16,000 tons of SO2 in 2012 or emitted more that 2,600 tons and had an annual average emission rate of 0.45 lbs. SO2/Mmbtu or higher in 2012. The consent decree has been appealed to the Ninth Circuit, and proceedings here are held in abeyance pending the outcome of that appeal.

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


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

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


Walter Coke, Inc. v. EPA   (D.C. Circuit)

Challenging EPA's effort to amend state plans regarding emissions during startups, shutdowns and malfunctions

On June 12, 2015, EPA published a rule entitled "State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Finding of Substantial Inadequacy; and SIP Calls for Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction." That's a complicated way of saying they responded to a Sierra Club petition by ordering state environmental enforcement plans to conform to their policies relating to excess emissions into the air when plant equipment is started up, shut down, or when it malfunctions (SSM events). The agency found that provisions in 36 state implementation plans (SIPs) are inadequate, in part because they contain provisions that provide an affirmative defense to emissions violations during SSM events.

The NAM is a member of the SSM Litigation Group, which filed a petition to review EPA's final rule. 18 states filed similar challenges, as have various companies and business organizations. On March 16, 2016, the NAM and all the other industry petitioners joined in our main brief on the merits, arguing: (1) EPA failed to justify its SIP call, (2) its prohibition on so-called "exemptions" from emission limitations are not supported, and (3) its prohibition of affirmative defenses by industry is not supported by the Clean Air Act or case law.

On March 25, 2017, proceedings in the case were suspended while EPA reviews the rule. The agency will submit reports on the status of this review to the court every 90 days.

Related Documents:
Industry reply brief  (September 26, 2016)
Industry brief  (March 16, 2016)


West Virginia v. EPA   (D.C. Circuit)

Challenging EPA's Clean Power Plan

On the day that EPA's Clean Power Plan regulations were published in the Federal Register, twenty-six states and filed suit. The suits are expected to repeat many of the arguments made in similar suits filed by various states and coal companies earlier this year. Those cases are summarized here, and were dismissed by the court as premature.

The NAM and a coalition of other national trade associations filed suit later that day, along with a motion asking the court to stay, or suspend implementation of, the rule until the legal issues are resolved in court.

The NAM filed extensive comments during the development of the rule, but they were largely ignored. Instead, EPA came out with a rule that will lead to a tremendous change in the power industry and beyond, restricting fuel resources and reducing the reliability of the electric grid.

Manufacturers are committed to reducing greenhouse gases and have helped bring about a more than 10% reduction in them since 2005. EPA's approach will drive up energy rates and make it increasingly difficult for manufacturers to make things and create jobs in the United States. We believe that we have a strong case that the regulation exceeds EPA's authority under the Clean Air Act and that the courts will step in to restrain the agency.

On Jan. 21, 2016, the D.C. Circuit denied motions to stay the regulation pending the outcome of the litigation, but granted expedited briefing with oral arguments scheduled for June 2, 2016. West Virginia and 28 other states and state agencies filed an application for a stay in the U.S. Supreme Court on Jan. 26. In an unprecedented ruling, the Supreme Court granted the stay on Feb. 9. Click here for details.

All of the petitioners, including the NAM, numerous states, electric utilities and other business groups, filed a joint brief on Feb. 19 detailing the legal arguments against EPA’s rule. First, we argued that the Clean Air Act does not authorize EPA to restructure the power sector, invading a traditional state regulatory domain without clear congressional authorization. In addition, the regulation mandates emissions reductions that go beyond what any stationary source of emissions can achieve, and mandates that the owners and operators of those sources reduce or cease work and shift the generation of electricity to another power plant.

Second, the Clean Air Act expressly prohibits EPA from imposing regulations under Sec. 111 on facilities that are already regulated under Sec. 112, which is the case here. This provision was designed to prevent duplicative or otherwise inefficient regulation.

Third, the regulation bars the authority granted to states to consider the remaining useful life of a source when establishing its standards, thus taking into account the tremendous costs associated with switching fuel sources away from fossil fuels.

Finally, we argued that the regulation violates states’ rights by commandeering their authority over intrastate generation and transmission of electricity and leaving them to bear the brunt of citizen complaints about increased costs and lost jobs.

We filed a reply brief on 4/22/16 reiterating and expanding on these arguments. Oral arguments, originally scheduled before a 3-judge panel for June 2, were held on September 27 before the entire (en banc) court (10 judges). This is a sign of the importance of the case to the D.C. Circuit judges, and of the need for a quicker resolution of this case than most. The arguments, scheduled to last under 4 hours, turned out to take 6 hours and 45 minutes because of the many issues and active questioning from the judges.

In March, 2017, EPA moved to hold this case in abeyance in light of its announcement that it had started a review of the rule pursuant to an order from President Trump. Our coalition filed a supporting response brief, and the court agreed, suspending the case on March 28, 2017. Periodic reports from EPA will be filed, and the parties have been asked to brief whether the case should be sent back to the agency rather than held in abeyance. Those briefs are due May 15.

Related Documents:
NAM response in support of abeyance  (April 6, 2017)
NAM reply brief  (April 22, 2016)
NAM merits brief on core legal issues  (February 19, 2016)
NAM Motion for Stay  (October 23, 2015)
NAM Petition  (October 23, 2015)
NAM press release  (October 23, 2015)


White Stallion Energy Center, LLC v. EPA   (D.C. Circuit)

Challenging EPA Maximum Achievable Control Technology regulation

This case is about how the EPA establishes standards for maximum achievable control technology (MACT) which is used to minimize the emission of pollutants into the air. It arose in the context of a new regulation on emissions of hazardous air pollutants from electric utillities, as well as industrial-commercial-institutional steam generating units. The 2012 "Utility MACT" regulation adopts a methodology that has broad implications for industries subject to existing MACT standards that may be revised, or new standards yet to be developed.

The NAM filed an amicus brief arguing that the EPA erred in adopting a "pollutant-by-pollutant" approach. Under that approach, EPA cherry-picks emissions data from multiple sources and sets a MACT floor based on whatever source is deemed the "best" for each individual pollutant. This often means there is a different best performer for each pollutant, and no single source of emissions will be able to achieve the regulatory requirement. The NAM believes that these measurements need to be made from producers operating under practical conditions -- not individually measuring pollutants and not from sources ideally positioned to limit their pollution, as the EPA argues. The EPA's approach is like asking a decathlon champion to be able to win not only the overall decathlon, but all of the individual events as well.

In addition, we argued that EPA must give meaningful consideration to costs in determining whether a particular standard is achievable. The Clean Air Act requires that the level of pollution reduction that EPA specifies be achievable, and its methodology will severely curtail or eliminate operations. Some vendors are unwilling to offer guarantees that their pollution control technology will meet the new standards, and financing of new projects is jeopardized.

On 9/12/2012, the court ordered this case to be held in abeyance pending reconsideration of the new source standards now under way at EPA. The agency stated that it intends to complete the reconsideration by March 2013. It said it would reconsider "measurement issues related to mercury and the data set to which the variability calculation was applied when establishing the new source standards for particulate matter and hydrochloric acid." It also said that it would stay the effectiveness of the current new source standards for three months, until November 2. See 77 Fed. Reg. 45968 (Aug. 2, 2012).

Related Documents:
NAM amicus brief  (August 3, 2012)


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