Alabama v. EPA
State challenge to greenhouse gas tailoring rule
Various states have sued EPA over its tailoring rule, by which the agency is rolling out enforcement of greenhouse gas regulations to the largest facilities first, followed by smaller ones later. States must comply with EPA's new regulations. The NAM and 14 other business associations in our coalition have filed a motion to intervene in litigation filed by representatives of 8 states challenging EPA's authority. Their lawsuit seeks judicial review of EPA's plan to retroactively limit its previous approval of pollution thresholds in State Implementation Plans (SIPs). The states are likely to argue that EPA violated the Clean Air Act by its reinterpretation of existing regulations, which would result in significant additional costs to manufacturers regulated under state programs.
The NAM's intervention in this case is designed to assist the court in understanding the interaction between EPA's requirements, state implementation programs, and emissions permit requirements affecting manufacturers.
The NAM and other organizations have also filed a separate petition to review the EPA's tailoring rule. Motions to govern further proceedings in this case are due Sept. 30, 2014.
NAM motion to intervene
(August 30, 2010)
American Chemistry Council v. EPA
Challenging EPA regulation of boilers for area sources (boiler GACT)
The NAM and other industry organizations filed a petition with a federal appeals court to review a final rule on hazardous air pollutants issued by EPA on Feb. 1, 2013, entitled “National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers.” The rule was written to require "generally available control technologies" (GACT) or management practices to reduce emissions of hazardous air pollutants, taking into consideration the cost of achieving such reductions. Our petition, styled Council of Industrial Boiler Owners v. EPA, was consolidated by the court into the Louisiana Envtl. Action Network case and then into the American Chemistry Council v. EPA case.
Our group also filed a petition with EPA for administrative reconsideration of this regulation, along with two related rules involving air pollutants for major sources (boiler MACT, or maximum achievable control technologies) and commercial and solid waste incineration (CISWI) units.
On 4/17/2014, the NAM and others filed a reply brief in support of our motion that the court vacate all MACT standards that were developed using the Upper Prediction Limit (UPL) methodology in the Area Source Boiler Rules because all such standards were based on nine or fewer data points. The problem with EPA”s approach stems from the statutory requirement that it set emissions limits based on the best performing 12% of combustions units. EPA did not have sufficient data to property calculate an emissions standard based on this 12% requirement. Instead, it used the UPL methodology to estimate the emissions limits based on data gathered from only 9 units rather than a total of at least 26 units that it should have used to satisfy the 12% requirement. By asking for a voluntary remand, EPA is effectively conceding that the methodology used to calculate the UPL standards is flawed. EPA has conceded that its standards based on 9 or fewer data points are indefensible on the current record, and we argued that industry will be harmed if the standards are not vacated. We argued that pending EPA’s reconsideration, the rule should not remain in effect. Otherwise, companies will have to satisfy costly compliance obligations that may become obsolete at the conclusion of EPA’s reconsideration process.
On May 15, 2014, the D.C. Circuit denied our motion for affirmative relief but granted EPA’s motion to remand the emissions standards based on the UPL methodology. According to the remand, EPA had 60 days to provide further explanation of its use of the UPL methodology.
Full briefing in the case began with our main brief filed Aug. 26, 2014. In it, we argued that the EPA's energy assessment requirement is beyond the scope of its authority for several reasons. One is that the requirement reaches far beyond boilers to regulate virtually every piece of equipment at all affected facilities, including "process heating; compressed air systems; machine drive (motors, pumps, fans); process cooling; facility heating, ventilation, and air-conditioning systems; hot water systems; building envelope; and lighting; or other systems that use steam, hot water, process heat, or electricity provided by the affected boiler."
We also argued that EPA unlawfully failed to account for malfunctions when setting the rule's emission standards. The courts have repeatedly required EPA to account for malfunctions when setting technology-based standards, and EPA's standard is not reflective of what is achieved in practice by the best-performing existing sources.
We filed an additional brief 12/23/14 in support of some of EPA's decisions in this rulemaking. The agency appropriately set standards for certain sources, temporary boilers were properly excluded, it properly set generally available rather than maximum-achievable standards, and it reasonably exempted synthetic area sources with controls and federal limits.
On 1/21/15, we filed a brief replying to EPA and environmental group arguments. We reiterated that the energy assessment requirement is unlawful and that EPA has a duty to account for malfunctions when determinng what the best performing sources can achieve. Its standards must apply to all phases of operation: startup, normal operations, shutdown, and malfunctions. Leaving malfunctions out of the analysis leads to unreasonably strict standards.
Additional briefing in the case will conclude on Feb. 18, 2015.
Reply Brief of Industry Petitioners
(January 21, 2015)Brief of Industry Intervenor-Respondents
(December 23, 2014)Opening Brief of Industry Petitioners (incl. NAM)
(August 26, 2014)NAM Reply Brief in support of motion for affirmative relief
(April 17, 2014)NAM motion for affirmative relief
(March 13, 2014)NAM Statement of Issues
(May 1, 2013)Petition for Review
(April 2, 2013)
American Forest & Paper Ass'n v. EPA
Challenging EPA's CISWI regulations
On April 29, 2011, the NAM joined with 10 other associations asking a federal court to review EPA's new regulations on commercial and industrial solid waste incineration (CISWI) units. The rules have the potential to impose additional costs on key industrial sectors. We filed formal petitions in federal court challenging the rules to ensure that, if EPA fails to reconsider its actions, an appeals court panel will have a chance to consider whether EPA acted within the law.
On the same day, we filed a suit challenging EPA's rules establishing stricter emissions limits on industrial, commercial and institutional boilers. For details, see U.S. Sugar Corp. v. EPA (D.C. Cir.).
On May 16, 2011, EPA announced that it was reconsidering and delaying the effective dates for the Boiler MACT and CISWI rules, and the court suspended the legal proceedings. EPA proposed a new rule on Dec. 23, 2011, and issued the final rule on Feb. 7, 2013.
The NAM and other groups challenged this new rule in a case styled Portland Cement Ass'n v. EPA. That case, along with other business and environmental group challenges, have been consolidated into this case. The NAM also intervened in challenges to the rule by environmental groups.
On 4/17/14, the NAM filed a reply brief in support of a motion that the court vacate all MACT standards that were developed using the Upper Prediction Limit (UPL) methodology and nine or fewer data points. The problem with EPA”s approach stems from the statutory requirement that it set emissions limits based on the best performing 12% of combustions units. EPA did not have sufficient data to property calculate an emissions standard based on this 12% requirement. Instead, it used the UPL methodology to estimate the emissions limits based on data gathered from only 9 units rather than a total of at least 26 units that it should have used to satisfy the 12% requirement. By asking for a voluntary remand, EPA is effectively conceding that the methodology used to calculate the UPL standards is flawed. We argued that pending EPA’s reconsideration, the rule should not remain in effect. Otherwise, companies will have to satisfy costly compliance obligations that may become obsolete at the conclusion of EPA’s reconsideration process. We also asked the court to order briefing on all the other issues remaining in this case.
On May 15, 2014, the D.C. Circuit denied our motion for affirmative relief but granted EPA’s motion to remand the emissions standards based on the UPL methodology. EPA completed its work in July. In September, the court assigned to another case claims relating to the affirmative defense provision of the CISWI rule and issues relating to fuel variability for solid fuels in the coal-fired energy recovery units subcategory.
We filed our main brief October 2 seeking review of emission standards for the small remote incinerator subcategory because EPA failed to account for variability in waste materials when classifying best-performing units, and EPA improperly tested on a pollutant-by-pollutant basis. We also argued that EPA should take into account emissions occuring during startups, shutdowns and malfunctions when determining whether emissions limits are achievable. We also urged allowance of emissions averaging, and argued that EPA could not impose recordkeeping requirements through the CISWI rule on operators that combust non-hazardous secondary materials that are not waste.
On Feb. 9, 2015, the industry coalition filed its main brief as intervenors opposing environmental group arguments against some of EPA's decisions. We supported EPA's decision to defer regulation of burn-off ovens, cyclonic burn barrels, foundry sand reclamation units, soil treatment units and space heaters. We also supported EPA's statistical techniques -- Upper Limit and Upper Prediction Limit -- to calculate emissions standards while taking into account variability. In addition, EPA's use of 30-day averaging for continuous monitoring systems takes into account variable conditions, and the agency properly decided not to impose stricter regulations for various categories of pollutants already regulated.
NAM intervenor brief
(February 9, 2015)NAM Reply Brief in support of motion for affirmative relief
(April 17, 2014)NAM motion for affirmative relief
(March 13, 2014)Shopfloor Blog
(May 9, 2011)NAM Petition for Review
(April 29, 2011)NAM Petition for Administrative Stay
(April 27, 2011)
American Petroleum Institute v. EPA
Challenging EPA greenhouse gas regulation (tailoring Step 3)
The NAM and other organizations filed another petition to review an EPA action that is part of its suite of regulations of greenhouse gases from stationary sources. One of our initial suits in this series challenged the EPA's effort to interpret its authority with its Tailoring Rule -- tailoring the impact of the rule to only hit the largest emitters of greenhouse gases. That rule was necessary to prevent absurd consequences from the EPA's earlier interpretations of its authority. The NAM has argued that EPA could have adopted a more reasonable interpretation of its power so as to avoid the absurdities it is now trying to ameliorate. This latest rule (the Tailoring Step 3 rule) was issued on July 12, 2012. The case has been held in abeyance while EPA and other parties sort out the requirements laid down by the Supreme Court in UARG v. EPA.
Coalition for Responsible Regulation, Inc. v. EPA
Greenhouse gas case after decision from Supreme Court
The NAM's successful challenge to EPA's authority to regulate virtually all manufacturers that emit greenhouse gases was sent back from the Supreme Court to the U.S. Court of Appeals for the D.C. Circuit to determine what to do with regulations that are still printed in the Code of Federal Regulations, but that exceed EPA's regulatory authority. All of the parties that challenged EPA's authority, including state governments, industry associations, and public interest groups, filed a motion with the court, as has EPA, recommending what to do next.
EPA's motion proposed that the court declare the "regulations under review are vacated to the extent they require a stationary source to obtain a PSD [or Title V] permit if greenhouse gases are the only pollutant [that would trigger construction or modification review." It also says the court should direct it to rescind or revise the regulations to reflect the Supreme Court's decision. The agency does not believe it should establish a de minimis threshold for greenhouse gas regulation, but instead wants to rely on the 75,000 tons per year threshold currently on the books.
Industry's motion, by contrast, argued that the Court invalidated EPA's regulations to the extent they "treat greenhouse gases as a pollutant for purposes of defining" PSD and Title V applicability. As a result, EPA must vacate those rules, namely the Tailoring Rule, the Timing/Triggering Rule (to the extent EPA relied on it), and other challenged rules it relied on. EPA's interpretation of its authority was neither compelled nor allowed by law, so in effect it must start over. It should also decide on a de minimis threshold for regulation.
Final briefs in response to each motion were filed November 21, 2014.
Industry response to motions to govern future proceedings
(November 21, 2014)Industry motion to govern future proceedings
(October 21, 2014)
JELD-WEN, Inc. v. EPA
Challenging EPA regulation of boilers and process heaters (boiler MACT)
The NAM and other industry organizations filed a petition with a federal appeals court to review a final rule on hazardous air pollutants issued by EPA on Jan. 31, 2013, entitled “National Emission Standards for Hazardous Air Pollutants for Major Sources: 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. Our challenge was consolidated with those of other industry and environmental groups, under the caption above. Details about the legal claims in this litigation were filed on May 2.
At the same time, these groups filed a petition with EPA for administrative reconsideration of this regulation, along with two related rules involving air pollutants for area sources (boiler GACT, or generally available control technology) and commercial and solid waste incineration (CISWI) units.
This petition to EPA identified several problems that make the rules burdensome and unsupported by the facts or the law. For example, there are concerns about the definition of startup and shutdown, and startup work practices were incorporated into the new rules without giving key stakeholders adequate opportunity to comment. Important safety considerations for the regulated community were overlooked in the definitions. Additionally, the new rules fail to take account of the importance of encouraging efficient and cost effective use of resources. The fuel requirements in the rules do not incorporate national goals of safeguarding fuel diversity and the list of clean fuels is unduly narrow. Particular parameters used to measure compliance with the new rules need further clarification to insure consistency across the operating parameters. The petition also points out that EPA does not have legal authority to impose the energy assessment requirement included in the rules and that, in any event, the requirement is not supported by the record.
This case has been consolidated with U.S. Sugar Corp. v. EPA, a similar challenge to EPA's boiler MACT regulations pending since 2011. Click here to follow developments in this case since the consolidation.
Statement of Issues
(May 2, 2013)NAM Petition for Review
(April 1, 2013)
Murray Energy Corp. v. EPA
Challenge to EPA's proposed existing power plant GHG regulation
The NAM and 8 other business associations filed an amicus brief supporting Murray Energy's challenge to EPA's proposed rule to substantially regulate greenhouse gas emissions from existing power plants. According to the EPA, the rule's annual compliance costs will reach at least $7.3 billion by 2030, and manufacturers will see dramatic electricity cost increases and less reliable service as a result.
The NAM amicus brief argued that Section 111(d)(1) of the Clean Air Act prohibits EPA from setting performance standards for sources that are already regulated under Section 112. EPA's interpretation would create double regulation, making power plant operation more expensive and conflicting with the purpose of Section 111(d). The statutory language is not ambiguous, and EPA's interpretation should not be given deference by the courts.
NAM amicus brief
(December 22, 2014)
National Association for Surface Finishing v. EPA
EPA recalculation of MACT standards
This case involves the statutory obligations of the EPA to set maximum achievable control technology (MACT) standards for emissions under Clean Air Act Sec. 112(d)(6), specifically for chromium electroplating and anodizing operations. EPA is in the early stages of implementing that section, which applies when EPA reviews standards every 8 years. Because this review process applies to many other substances regulated by EPA, the decision in this case will extend far beyond chromium use.
At issue is what the statute requires of EPA when determining whether to tighten an existing standard. The NAM filed an amicus brief arguing that the statute specifically requires EPA to revise a standard, when conducting a technology review, only when "necessary (taking into account developments in practices, processes, and control technologies)." In this case, EPA's approach did not square with the plain statutory requirements, because it identified no "development" in emissions control measures that necessitates the new, more stringent standards it adopted.
We also oppose an effort by environmental groups to have EPA recalculate existing standards using procedures in Sec. 112(d)(2) and (3) for initial MACT standard-setting. Those procedures for new standards are not constrained in the same way that 8-year reviews are. As a result, EPA will lower emissions limits because companies complying with new standards try to build in a compliance margin when they buy new equipment, and that commendable over-performance raises the bar and leads EPA to lower the limits when the standard is reviewed. EPA's longstanding position is that it is not required to re-set the existing MACT standards each time it conducts a Sec. 112(d)(6) review, and that it is not required to use procedures under Sec. 112(d)(2) and (3) for periodic reviews, yet it did so in this case.
NAM amicus brief
(June 9, 2014)
National Association of Clean Water Agencies v. EPA
Challenging EPA's Non-Hazardous Secondary Materials Rule
The NAM and other industry organizations filed a petition with a federal appeals court to review a final rule on non-hazardous secondary materials (NHSM) issued by the EPA on February 7, 2013, entitled “Commercial and Industrial Solid Waste Incineration Units: Reconsideration and Final Amendments; Non-Hazardous Secondary Materials That Are Solid Waste, Final Rule”. The rule was written to identify whether NHSMs are solid waste under the Resource Conservation and Recovery Act when used as fuels or ingredients in combustion units. Further details about the legal claims in this litigation will be filed with the court shortly.
This case was consolidated on June 7, 2013. For more information click here.
Petition for Review
(May 7, 2013)
Portland Cement Ass'n v. EPA
Challenging EPA regulation of CISWI
The NAM and other industry organizations filed a petition with a federal appeals court to review a final rule, issued by EPA on Feb. 7, 2013, on Commercial and Industrial Solid Waste Incineration (CISWI) units. The rule amends rules issued in 2011 relating to restrictions on materials that are used as fuels or ingredients in combustion units. Our petition, styled American Wood Council v. EPA, was consolidated by the court into the Portland Cement Association case.
On April 1, 2013, we joined other business groups in a petition to EPA for administrative reconsideration of this regulation, along with two related rules involving air pollutants for area sources (boiler GACT, or generally available control technology) and major sources (boiler MACT, or maximum achievable control technologies).
The court consolidated this case into a challenge to the 2011 rule on CISWI units, styled American Forest & Paper Ass'n v. EPA. Click here for further details on this combined litigation.
NAM Petition for Review
(April 1, 2013)
Sierra Club v. EPA
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.
NAM Motion to Intervene
(July 17, 2014)
Solvay USA Inc. v. EPA
Challenging EPA's Non-Hazardous Secondary Materials rule
On June 16, 2011, the NAM filed a petition for review of the EPA’s Non-Hazardous Secondary Materials (NHSM) rule under the suite of Boiler MACT rules. The NHSM rule will classify as solid waste certain “secondary” materials that are currently used as a source of energy, such as coal ash or biomass residues from lumber. Solid waste must be burned in boilers regulated under more onerous rules than apply to fuels. The NAM is concerned with several aspects of the rule, including its effect on the use of non-hazardous materials, its presumption that all non-hazardous secondary materials are solid waste, and other provisions.
A list of legal issues in the case was filed, including challenging EPA's presumption that all non-hazardous secondary materials are solid waste, and its definition of "contaminants," "traditional fuels," and "contained gaseous material." Also at issue, among other things, is whether EPA violated the Regulatory Flexibility Act by failing to consider the economic impacts of the rule on small businesses.
In 2013, National Ass'n of Clean Water Agencies v. EPA was consolidated with the NAM suit into Solvay USA Inc. v. EPA. Our main brief on the merits, filed 4/28/2014, raised 4 key challenges to EPA's rule: (1) that EPA improperly decided that transferring alternative fuels to third parties for combustion is a discard and therefore such fuels are solid wastes, (2) that EPA improperly classified as solid waste alternative fuels such as those made from construction and demolition wood, railroad ties, and other treated woods that have heating value, are managed as valuable fuel, and are processed to create new fuel products, (3) that EPA improperly classified as solid waste alternative fuels such as paper recycling residuals, even though the record demonstrates no discard has occurred and the combustion is an integral part of an industrial process or functionally equivalent to a traditional fuel, and (4) that EPA improperly classified as solid waste sewage sludge when combusted even though the Resource Conservation and Recovery Act (RCRA) prohibits such a classification.
The practical effect of EPA's rule is that alternative fuel that could have been productively combusted will be managed as a waste and can only be combusted in a solid waste incinerator under much more expensive rules, leading to an enormous increase in landfill disposal, which has its own set of environmental harms.
Our brief as intervenors was filed Aug. 29, 2014, and emphasized that EPA could find under RCRA that discarded material could be recovered and processed into a non-waste fuel product, and that it could properly classify as non-wastes scrap tires, used oil, pulp and paper residuals, construction and demolition debris and other traditional fuels.
Joint Reply Brief of Industry Petitioners
(September 29, 2014)Joint Brief of Industry Intervenor-Respondents (incl. NAM)
(August 29, 2014)NAM brief on the merits
(April 28, 2014)Statement of Issues
(July 8, 2011)NAM petition
(June 16, 2011)
Texas v. EPA
Challenging EPA's partial takeover of PSD permit authority in Texas
The NAM and four other business organizations filed an amicus brief supporting the State of Texas in its lawsuit seeking an emergency stay of EPA’s decision partially revoking the State’s permitting authority under its Clean Air Act implementation plan. EPA took over the Texas permitting authority without notice-and-comment rulemaking on the premise that without intervention many stationary sources of greenhouse gas emissions in Texas would have to forgo construction and modification in 2011. But there was no construction ban in Texas, and EPA's intervention was not needed to prevent one.
EPA took the action in late December, 2010, after the Texas Clear Air Act implementation plan had been on the books for 18 years. EPA believes that its new greenhouse gas rules require large stationary sources of GHG emissions to obtain PSD (Prevention of Significant Deterioration) permits before beginning construction or undertaking modifications of their facilities. Most states automatically incorporate new EPA pollutants in their state plans, but Texas does not, and EPA believes Texas will not act promptly to do so. Our brief, however, argued that PSD permit requirements are not automatically incorporated into a state's implementation plan. Thus, a court may stay EPA's latest regulatory control tactic without interfering with the continuing process by which Texas issues construction and modification permits for stationary sources of emissions.
On Jan. 12, 2011, the Court granted our motion to file an amicus brief, but denied the motion for a stay. EPA's regulatory action continued in force during the litigation.
On June 18, 2012 the NAM, as part of the SIP/FIP Advocacy Group, filed its main brief to support Texas’ State Implementation Plan (SIP) against the EPA’s actions to deny it. Our brief argued that EPA cannot override the Texas SIP any time it finds fault or shifts its policy direction. EPA should not expand its powers by using legislation that was intended merely to correct clerical or technical errors in prior laws. In addition, the EPA should not have reviewed the SIP, as it was compliant with the Clean Air Act when it was implemented. Finally, we argued that EPA ignored the requirement to give notice and an opportunity to comment on rule changes.
These steps by EPA are causing harm to Texas and manufacturers, as they require businesses to obtain permitting from both the state and the federal government, and have effectively destabilized investments in Texas businesses affected by the standards.
On July 26, 2013, the D.C. Circuit ruled 2 to 1 that no party had standing to challenge EPA's actions because any harm was caused by the Clean Air Act and not by EPA's actions. It found that the Act's permitting requirements are self-executing and require permits for each pollutant subject to regulation under the Act even when the applicable SIP has not been updated to include requirements for newly regulated pollutants. The petitioners did not have standing, according to the majority, because a victory for them would leave them worse off than with the rules, because there would be a construction ban in those states without a SIP for greenhouse gases.
On Sept. 22, 2014, we petitioned the court to rehear this case, arguing that its decision directly conflicted with the Supreme Court's recent decision in UARG v. EPA. The Supreme Court ruled that the Clean Air Act cannot be interpreted to automatically require a source to obtain a PSD permit on the sole basis of its potential greenhouse gas emissions when those emissions became regulated pollutants. Because the requirements are not self-executing, the D.C. Circuit's decision based on that finding are insupportable. EPA could not reject state implementation plans that did not regulate major sources of greenhouse gases because its own regulations were not authorized.
The court ordered responses to the petition for rehearing, which were filed on November 4.
SIP/FIP Advocacy Group petition for rehearing
(September 22, 2014)SIP/FIP Advocacy Group reply brief
(September 21, 2012)SIP/FIP Advocacy Group brief
(June 18, 2012)NAM amicus brief
(January 6, 2011)
U.S. Sugar Corp. v. EPA
Challenging EPA's boiler MACT regulations
On April 29, 2011, the NAM joined with 12 other associations asking a federal court to review EPA's Boiler MACT (Maximum Achievable Control Technology) standard. These rules regulate emissions of hazardous air pollutants generated by boilers. They have the potential to dramatically impact the U.S. economy and impose enormous costs on key industrial sectors. We challenged the rules to ensure that, if EPA fails to reconsider its actions, a court can review its actions. The lawsuit, filed by a coalition of associations including the NAM, was consolidated with U.S. Sugar Corp. v. EPA (D.C. Cir.). A statement of legal issues in the case were filed on July 8. On August 3, the D.C. Circuit ordered this case to be held in abeyance indefinitely.
We also filed a suit challenging EPA's rule establishing stricter emissions limits on commercial and industrial solid waste incineration (CISWI) units. For details, see American Forest & Paper Ass'n v. EPA (D.C. Cir.).
On May 18, 2011, EPA announced that it was reconsidering and delaying the effective dates for the Boiler MACT and CISWI rules. It published its final rule on Jan. 31, 2013, effective as of April 1, 2013, which prompted further lawsuits from both the business and environmental communities. Those suits were consolidated into this one.
Initial briefs have been filed in regard to a motion by NAM and other business groups to vacate EPA's MACT standards developed using the Upper Prediction Limit (UPL) methodology and nine or fewer data points. The problem with EPA's approach stems from the statutory requirement that it set emissions limits based on the best performing 12% of combustion units. EPA did not have sufficient data to properly calculate an emissions standard based on this 12% requirement. Instead, it used the UPL methodology to estimate the emissions limits based on data gathered from only 9 units rather than a total of at least 26 units that it should have used to satisfy the 12% requirement. By asking for a voluntary remand, EPA is effectively conceding that the methodology used to calculate the UPL standards is flawed. We argued that pending EPA's reconsideration, the rule should not remain in effect. Otherwise, companies will have to satisfy costly compliance obligations that may become obsolete at the conclusion of EPA's reconsideration process.
We also asked that EPA supplement the record regarding this methodology, and that we proceed to briefing on the remaining issues in this case. On May 15, 2014, the D.C. Circuit denied our motion for affirmative relief but granted EPA’s motion to remand the MACT standards based on the UPL methodology. According to the remand, EPA has 60 days to provide further explanation of its use of the UPL methodology.
On August 12, the NAM and other industry petitioners filed our main brief on the merits of the remaining issues in the case. We challenged 5 flaws in the rule: (1) that EPA exceeded its authority in imposing an energy assessment requirement on portions of the facility that are not part of the defined source category (boilers and process heaters), (2) the emissions limitations are unlawful because they have not been achieved in practice, (3) the standards are not achievable because they were set without accounting for malfunctions, (4) EPA improperly established a numeric emission limitation for organic pollutants rather than a work practice as it has done in a comparable rule, and (5) EPA failed to justify its reversal of previously established health-based limits for hydrogen chloride.
On Dec. 17, the NAM joined in an industry brief with 24 other organizations in support of EPA's defense of its rules against 3 issues raised by environmental groups. First, we supported EPA's "Upper Prediction Limit" methodology to determine the proper value for best performing sources to meet over the full range of foreseeable operating conditions. Second, we supported the use of carbon monoxide as an appropriate surrogate for organic HAP emissions to determine combustion efficiency. Third, EPA appropriately subcategorized units based on the type of fuel burned and corresponding differences in boiler operation
Briefing in this case will conclude on Feb. 11, 2015.
NAM Brief in Response to Environmental Petitioners
(December 17, 2014)Opening Brief of Industry Petitioners
(August 12, 2014)NAM Reply Brief in Support of Affirmative Relief
(April 17, 2014)Shopfloor Blog
(May 9, 2011)NAM Petition for Review
(April 29, 2011)NAM ManuFACT
(April 29, 2011)NAM Petition for Administrative Stay
(April 27, 2011)Press Release
(February 23, 2011)
West Virginia v. EPA
Challenging EPA's new round of greenhouse gas regulations for utilities
The NAM and 9 other groups filed an amicus brief in a case brought by a coalition of 12 states seeking to hold unlawful a 2011 settlement agreement between the EPA and some environmental groups which committed the agency to propose rules to regulate greenhouse gases from power plants. EPA proposed the rules in 2014, and this challenge began in July. Although the agency has not finalized its rules, this suit challenges the underlying settlement agreement.
The EPA rules impose new compliance costs on utilities that already must bear $9.6 billion per year in costs under the 2012 rule on hazardous air pollutants. Manufacturers of energy inputs will see sales decline precipitously as power plants cut costs or shut down. Manufacturers of all kinds, as purchasers of electricity, will see dramatic cost increases and electric service will become less reliable.
In our amicus brief, we argue that EPA may not regulate power plants under Section 111(d) of the Clean Air Act because power plants are already regulated under Section 112, and the law specifically prohibits dual regulation under both sections. EPA tried to manufacture ambiguity by relying on an acknowledged congressional drafting error. EPA should not be entitled to judicial deference when the statutory language itself is clear.
A similar case, Murray Energy Corp. v. EPA, is also pending in the D.C. Circuit, involving the same questions but challenging the proposed rules directly. We filed an amicus brief in that case on December 22.
NAM amicus brief
(December 10, 2014)
White Stallion Energy Center, LLC v. EPA
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).
NAM amicus brief
(August 3, 2012)