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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, 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.

Briefing has concluded and oral arguments were held Dec. 3, 2015, in this and two companion cases involving boiler MACT and CISWI standards. A significant portion of the argument concerned EPA's failure to provide for malfunctions in the MACT and GACT rules. We anticipate a decision in the case in the first half of 2016.


Related Documents:
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   (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. 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.

Briefing has concluded and oral arguments were held Dec. 3, 2015, in this and two companion cases involving boiler MACT and GACT standards. A significant portion of the argument concerned EPA's failure to provide for malfunctions in the MACT and GACT rules. We anticipate a decision in the case in the first half of 2016.


Related Documents:
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   (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.

 

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 is awaiting an oral argument date.


Related Documents:
Opening brief of industry petitioners  (December 9, 2015)

 

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)

 

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.


Related Documents:
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)

 

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)

 

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.

Briefing will be scheduled for the first half of 2016.


Related Documents:
Preliminary statement of issues  (January 25, 2016)

 

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

This case was held in abeyance pending resolution of a similar suit in California brought by the Sierra Club, and 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)

 

Sierra Club v. EPA   (D.C. Circuit)

Boiler MACT reconsideration rule

This is another in a series of cases challenging overly burdensome emissions limits. EPA granted reconsideration and issued a proposed rule to amend parts of the Boiler Rule, which issued final standards 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. The 2015 Boiler Rule, the final version of this proposed rule, was challenged by the Sierra Club. Manufacturers would bear a large burden and financial hardship if the Sierra Club prevails in its challenge to the 2015 Boiler Rule.

The NAM filed a motion to intervene in support of EPA and the 2015 Rule. On March 24, 2016, the court granted our motion, and set a briefing schedule that concludes on December 27.


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

 

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

On Dec. 17, 2014, 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 and design.

Briefing has concluded and oral arguments were held Dec. 3, 2015, in this and two companion cases involving boiler MACT and CISWI standards. A significant portion of the argument concerned EPA's failure to provide for malfunctions in the MACT and GACT rules. We anticipate a decision in the case in the first half of 2016.


Related Documents:
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 Petition for Administrative Stay  (April 27, 2011)
Press Release  (February 23, 2011)

 

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.


Related Documents:
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, have been rescheduled for September 27 before the entire (en banc) court. 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.


Related Documents:
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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