The NAM is one member of a coalition of associations known as the NSR Manufacturers Roundtable which filed a motion 1/15/03 to intervene in a suit brought by NY, CT, ME, MD, MA, NH, NJ, RI and VT against the EPA's final regulation governing the procedures for companies to install stringent emission controls at their facilities under the Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR) provisions of the Clean Air Act. These states challenged the legality of EPA's rule, and the NSR Manufacturers Roundtable intervened to insure that the court considers the views of manufacturers and the effects of the rule on industry. The Roundtable includes the Alliance of Automobile Mfrs., the American Chemistry Council, the American Forest & Paper Assn., the American Iron and Steel Institute, American Petroleum Institute, the Council of Industrial Boiler Owners, National Mining Assn., the National Petrochemical & Refiners Assn., the Portland Cement Assn. and the NAM.
The NSR Manufacturers Roundtable’s first brief (filed 5/11/04) challenged EPA language in the rule’s preamble and argued that the statutory language, as well as the history of its enforcement, makes clear that the first step of the analysis of whether there is a change to an existing emissions unit at a stationary source is the requirement that the emitting capacity of the existing unit must be increased (i.e., that “new pollution” be created) by the change.
An 8/30/04 brief supported the EPA’s methodology for determining whether annual emissions have significantly increased.
The D.C. Circuit issued a mixed ruling on 6/24/05. It upheld some of the EPA’s decisions, vacated others, and rejected as not ripe industry’s challenge to the rule’s preamble language on the “actual-to-potential” methodology. The court’s main rulings are:
EPA may use past emissions and projected future actual emissions, rather than potential emissions, in measuring emissions increases;EPA may use a 10-year lookback period in selecting the 2-year baseline period for measuring past actual emissions from sources other than utilities;EPA may use a 5-year lookback period in certain circumstances for electric utilities;EPA may abandon a provision authorizing states to use source-specific allowable emissions in measuring baseline emissions;EPA may exclude increases due to unrelated demand growth from the measurement of projected future actual emissions;EPA may implement the Plantwide Applicability Limitations (“PAL”) program;EPA may not use the Clean Unit applicability test, which measures emissions increases by looking to whether “emissions limitations” have changed;EPA may not exempt certain pollution control projects that decrease emissions of some pollutants but that cause collateral increases of others;EPA may not waive recordkeeping requirements for sources making changes. EPA will have to justify or revise this waiver.