Text of Perkins Coie LLP RECENT DECISIONS AND REGULATORY DEVELOPMENTS AIR & WASTE MANAGEMENT ASSOCIATION...
Perkins Coie LLP RECENT DECISIONS AND REGULATORY DEVELOPMENTS AIR & WASTE MANAGEMENT ASSOCIATION ASSOCIATED OREGON INDUSTRIES June 16, 2015 Jeff Hunter, Perkins Coie LLP
Perkins Coie LLP | PerkinsCoie.com What We Will Cover CLEAN AIR ACT RCRA NEPA
Perkins Coie LLP | PerkinsCoie.com CLEAN AIR ACT COURT DECISIONS
Perkins Coie LLP | PerkinsCoie.com Murray Energy Corp. v. EPA No. 14-1112 (D.C. Cir. June 9, 2015) Industry and state petitioners challenged EPAs proposed regulations establishing carbon dioxide emissions limits on existing fossil-fuel fired power plants. Procedurally, petitioners argue that they have sufficient injury to establish standing because states have already begun to act on EPAs proposed rule Substantively, petitioners argue that EPA may not regulate these power plants under CAA 111(d) because they are already regulated under CAA 112.
Perkins Coie LLP | PerkinsCoie.com Murray Energy Corp. v. EPA (cont.) No. 14-1112 (D.C. Cir. June 9, 2015) The D.C. Circuit denied the industry and state petitions, finding that the Court does not have authority to review proposed agency regulations. The Court did not reach the substantive issue in the case
Perkins Coie LLP | PerkinsCoie.com Michigan v. EPA No. 14-46 (U.S. oral argument Mar. 25, 2015) Industry and the state challenged EPAs Mercury and Air Toxic Standards (the MATS rule) for fossil-fuel fired power plants. Petitioners argue that EPA unreasonably refused to consider costs in determining whether it was appropriate and necessary to regulate these sources. Petitioners rely on CAA provisions unique to electric utilities that, they say, require EPA to consider costs in regulating HAP emissions from these sources. The U.S. Supreme Court has not yet issued its decision in this case.
Perkins Coie LLP | PerkinsCoie.com Utility Air Regulatory Group v. EPA 134 S.Ct. 418 (2014) Industry groups challenged EPAs regulation of GHG emissions from stationary sources under the CAAs PSD program. U.S. Supreme Court granted cert on the narrow issue of: Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources. The Supreme Court, struck down the requirement that new sources qualifying as major sources solely because of their GHG emissions must get a preconstruction permit.
Perkins Coie LLP | PerkinsCoie.com Utility Air Regulatory Group v. EPA (cont.) 134 S.Ct. 418 (2014) The Supreme Courts decision leaves GHG permit requirements in place for stationary sources of GHGs (the great majority) that would also be subject to permit requirements because of their conventional pollutant emissions. Therefore, the practical impact of this decision is limited.
Perkins Coie LLP | PerkinsCoie.com Luminant Generation Co. v. EPA 757 F.3d 439 (5 th Cir. 2014) Operators of two coal-fired power plants, challenged the legal sufficiency of notices of violations (NOVs) issued by EPA. EPA argued that a court cannot hear a legal challenge to NOVs because NOVs are advisory, preliminary, and non- binding and thus not a final action. The 5 th Circuit agreed with EPA and held that issuance of an NOV does not constitute final action
Perkins Coie LLP | PerkinsCoie.com Delaware Dept. of Natural Res. v. EPA No. 13-1093 (D.C. Cir. May 1, 2015) State, industry, and environmental groups challenged EPAs NESHAP and NSPS standards for Reciprocating Internal Combustion Engines (RICE engines). The standards allowed those engines to operate without emissions controls for up to 100 hours per year under certain circumstances. The D.C. Circuit found that EPA acted arbitrarily and capriciously in issuing the 100 hour rule because it: Failed to properly respond to comments concerning the rules impact on grid reliability. Relied on faulty evidence in issuing the rule. Failed to consider limiting the geographic scope of the rule. Failed to consult with FERC and NERC on grid reliability concerns associated with the rule.
Perkins Coie LLP | PerkinsCoie.com Natl Assn of Mfrs. v. EPA 750 F.3d 921 (D.C. Cir. 2014) Industry challenged EPAs 2013 rule lowering the primary NAAQS for PM2.5 from 15.0 g/m 3 to 12.0 g/m 3 as arbitrary and capricious. The D.C. Circuit deferred to EPAs analysis of the scientific basis for revising the NAAQS and upheld EPAs rule as reasonable.
Perkins Coie LLP | PerkinsCoie.com Wyoming Ref. Co. v. EPA No. 14-1016 (D.C. Cir. June 2, 2015) Company challenged EPAs interpretation and application of the hardship provision under EPAs CAA Renewable Fuel Standard (RFS) program The petitioner company argued that EPA misapplied the hardship provision in denying the company hardship relief under the RFS program. The D.C. Circuit remanded the denial to EPA because EPA had made a mathematical error in its analysis of the petition. The Court, however, rejected the companys arguments that EPA misinterpreted and misapplied the hardship provision and granted deference to EPAs interpretation and application of the provision.
Perkins Coie LLP | PerkinsCoie.com Natl Parks Conservation Assn v. EPA 759 F.3d 969 (8 th Cir. 2014) Six environmental groups sued EPA in an effort to impose emission control technology on power plant. Power company sought to intervene. The district court denied intervention. 8 th Circuit reversed. Power company had standing because: the risk of direct financial harm ($280 Million in pollution control equipment) was an injury in fact; Power companys interests were not adequately represented by EPA.
Perkins Coie LLP | PerkinsCoie.com Sierra Club v. EPA 762 F.3d 971 (9 th Cir., 2014) EPA issues PSD permit 2+ years after application is deemed complete. During intervening period, new NAAQS for SO2/NOX went into effect + BACT for CO2. EPA issues permit without new requirements permit was effectively grandfathered. 9 th Cir. disagrees and no deference to EPA. CAA requires EPA to apply the regulations in effect at the time of the permit decision.
Perkins Coie LLP | PerkinsCoie.com CLEAN AIR ACT REGULATORY DEVELOPMENTS
Perkins Coie LLP | PerkinsCoie.com Final Rules Amended NSPS for Residential Wood Heaters: 80 FR 13672 (Mar. 16, 2015) Phased in emissions standards over five years. Direct Final Rule for Rescission of EPA-Issued Tailoring Rule Step 2 Prevention of Significant Deterioration (PSD) Permits: 80 FR 26183 (May 7, 2015) Amends PSD regulations to allow for rescission of certain PSD permits in light of Utility Air Regulatory Group v. EPA, 134 S.Ct. 2427 (2014).
Perkins Coie LLP | PerkinsCoie.com Final Rules (cont.) Startup, Shutdown, Malfunction (SSM) SIP Call: Pre- publication released May 22, 2015 Rejects inclusion of SSM exemption in state air plans. Completion of Requirement to Promulgate Emission Standards: Pre-publication released May 22, 2015 Confirms EPAs completion of statutory obligation to promulgate emissions standards for source categories accounting for not less than 90% of emissions of specific hazardous air pollutants.
Perkins Coie LLP | PerkinsCoie.com Final Rules (cont.) Renewable Fuel Standard: Pre-publication released May 29, 2015 Reduces volume targets for 2014, 2015, and 2016 in recognition of constraints in fuel market to accommodate increased volumes of ethanol.
Perkins Coie LLP | PerkinsCoie.com Guidance and Publications GHG Permitting Guidance following UARG v. EPA, July 24, 2014 Establishes guidance for permitting authorities regarding pending permits and whether certain projects need to apply for PSD and Title V permits in light of decision. Next Generation Compliance Tools, Jan. 7, 2015 Describes EPAs initiative to increase compliance through advances in monitoring and information technology and incorporate tools, such as advanced monitoring, into enforcement settlements.
Perkins Coie LLP | PerkinsCoie.com Guidance and Publications (cont.) Revisions to AP-42 Emission Factors, April 20, 2015 Provides a new VOC emissions factor for flares, as well as emissions factors (or emissions estimation methodologies) for certain other operations and pollutants.
Perkins Coie LLP | PerkinsCoie.com Proposed Rules Petroleum Refinery Sector Risk and Technology Review and NSPS: 79 FR 36880 (June 30, 2014) Establishes additional emission control requirements for storage tanks, flares and coking units at petroleum refineries and monitoring of air concentrations at the fenceline of refinery facilities.
Perkins Coie LLP | PerkinsCoie.com Proposed Rules (cont.) Standards for Performance of Municipal Solid Waste (MSW) Landfills: 79 FR 41796 (July 17, 2014) Reduces non-methane organic compound emission threshold at which MSW landfills must install controls. Accidental Release Prevention Requirements Risk Management Program (RMP): 79 FR 44604 (July 31, 2014) Responding to an Executive Order, requests comment on potential revisions to RMP regulations and related programs, including updating list of RMP regulated substances and toxic endpoints.