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Alabama v. EPA   (D.C. Circuit)

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. For a complete listing of NAM cases against EPA, click here.


Related Documents:
NAM motion to intervene  (August 30, 2010)

 

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

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, fanc); process cooling; facility heating, ventiolation, 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.

Additional briefing in the case will conclude on Feb. 18, 2015.


Related Documents:
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   (D.C. Circuit)

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.

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. According to the remand, EPA has 60 days to provide further explanation of its use of the UPL methodology.


Related Documents:
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   (D.C. Circuit)

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.

 

Center for Biological Diversity v. EPA   (D.C. Circuit)

When greenhouse gases become subject to regulation under the Clean Air Act

The NAM and 17 other business associations moved to intervene in a lawsuit brought by the Center for Biological Diversity (CBD) against the EPA over the agency's interpretation of when greenhouse gases become "subject to regulation" (STR) under the Clean Air Act. CBD is expected to argue that greenhouse gases were already subject to regulation before EPA issued the "Johnson memo" in 2008 and a subsequent STR rule in April, 2010. If such a claim is accepted by a federal court, thousands of members of the business associations could be forced to obtain permits for new or existing facilities and to install costly control technology to try to reduce greenhouse gas emissions.


Related Documents:
NAM motion to intervene  (June 28, 2010)

 

JELD-WEN, Inc. v. EPA   (D.C. Circuit)

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.


Related Documents:
Statement of Issues  (May 2, 2013)
NAM Petition for Review  (April 1, 2013)

 

National Association for Surface Finishing v. EPA   (D.C. Circuit)

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.


Related Documents:
NAM amicus brief  (June 9, 2014)

 

National Association of Clean Water Agencies v. EPA   (D.C. Circuit)

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.


Related Documents:
Petition for Review  (May 7, 2013)

 

Portland Cement Ass'n v. EPA   (D.C. Circuit)

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.


Related Documents:
NAM Petition for Review  (April 1, 2013)

 

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 redutions than would be required if designations were based on actual air quality monitoring data.


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 affirmate 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 until October 24, presumably while EPA decides on a pending administrative petition from the Sierra Club to revise the rules.


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

 

Solvay USA Inc. v. EPA   (D.C. Circuit)

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 transfering 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.


Related Documents:
NAM brief on the merits  (April 28, 2014)
Statement of Issues  (July 8, 2011)
NAM petition  (June 16, 2011)

 

U.S. Sugar Corp. v. EPA   (D.C. Circuit)

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 filed to justify its reversal of previously established health-based limits for hydrogen chloride.

EPA will reply to our briefing later this year. Briefing in this case will conclude on Feb. 11, 2015.


Related Documents:
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)

 

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 brief  (August 3, 2012)

 


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