Environmental -- 2016

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 occurring 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.

On July 29, the court rejected all industry arguments, finding that the EPA's approach was reasonable. It agreed with several challenges raised by environmental groups, and ordered EPA to issue a regulation for cyclonic burn barrels and determine whether regulation is required for 4 other categories of incinerators. It also ordered the agency to provide further justification for some of its decisions.

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)


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