Clean Air Act Update Fall 2016 Summary Report
Overview of the latest Clean Air Act litigation updates including Clean Power Plan, Boiler MACT/GACT, and CISWI developments. Highlights include recent court decisions, industry challenges, and upcoming proceedings. Stay informed on key legal issues shaping environmental policy.
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CLEAN AIR ACT UPDATE ACCCI MESH Committee Meeting Fall 2016 Jeffrey Knight October 6, 2016 Attorney-Client Privileged Pillsbury Winthrop Shaw Pittman LLP
Overview CAA Litigation Updates o Clean Power Plan o Boiler MACT/GACT and CISWI o 112(c)(6) Source Categories o 112(d)(6) RTR Deadlines o SSM SIP Call 2 2 | Clean Air Act Update Fall 2016
Clean Power Plan Litigation Oral argument in West Virginia v. EPA held Sept 27 What next with the D.C. Circuit? o When to expect a decision o No en banc rehearing What next with the Supreme Court? o Will the Court grant cert? o When would the case be heard? 3 | Clean Air Act Update Fall 2016
Boiler MACT/GACT Litigation D.C. Circuit decision (U.S. Sugar Corp. v. EPA) announced July 29 Rejected all industry challenges: o Pollutant-by-pollutant approach to MACT floors upheld o Use of numeric standards for malfunction periods upheld o Energy assessment upheld o CISWI recordkeeping as applicability threshold upheld 4 | Clean Air Act Update Fall 2016
Boiler MACT/GACT Litigation Mixed result on ENGO challenges: o Selection of best performers and MACT floors (e.g., non-Gas 1 boilers) vacated and remanded (EPA has filed for rehearing on vacatur remedy) o Upper prediction limit (UPL) to account for variability upheld (ENGOs have filed for rehearing) o CO surrogate for organic HAP remanded o Area source boiler GACT v. MACT for non- mercury metals remanded o Area source boiler Title V exclusion remanded 5 | Clean Air Act Update Fall 2016
Boiler MACT Reconsideration Boiler MACT reconsideration case (NAM v. EPA) still pending All industry petitioners (incl. ACCCI) have voluntarily dismissed ENGO petitioners pursuing petitions but have not identified which issues will be briefed: o Definitions of startup and shutdown periods and work practices during these periods o Validity of emission limits based on UPL for small data sets (9 for existing units; 21 for new units) may be moot after U.S. Sugar Corp. decision 6 | Clean Air Act Update Fall 2016
112(c)(6) Litigation CAA 112(c)(6) sources responsible for 90% of the aggregate emissions of 7 PBA HAP subject to standards under CAA 112(d)(2) [MACT] or 112(d)(4) [risk-based for specified HAP] o alkylated lead o POM o HCB o Pb o PCBs o 2,3,7,8-tetrachlorodibenzofurans o 2,3,7,8-tetrachlorodibenzo-p-dioxin 7 | Clean Air Act Update Fall 2016
112(c)(6) Litigation June 2015 EPA issued a rule stating that it has satisfied 112(c)(6) by promulgating standards for numerous source categories, including NESHAPs for coke oven charging/topside/doors, by-product recovery plants, and PQBS ENGOs challenged EPA s determination (Sierra Club v. EPA) arguing, among other things, that COE is not an appropriate surrogate for POM ENGOs want EPA to promulgate new MACT standards for coke ovens directly regulating POM 8 | Clean Air Act Update Fall 2016
112(c)(6) Litigation Industry coalition comprised of 7 associations (ACCCI, ACC, ACA, AF&PA, AFPM, AISI, and NACWA) filed an amicus brief in support of EPA arguing: o ENGO claims are time barred o ENGO claims raised previously and not pursued o EPA developed an adequate factual basis for use of surrogates Oral argument anticipated early 2017 9 | Clean Air Act Update Fall 2016
112(d)(6) RTR Deadline Litigation CAA 112(d)(6) review and revise existing NESHAPs as necessary (taking into account developments in practices, processes, and control technologies) no less often than every 8 years Apr 3, 2015 ENGOs file lawsuit in D.D.C. (CCAT v. EPA) to set court-ordered deadlines to complete RTRs for 20 source categories PQBS not included Feb 24, 2016 ENGOs file a second lawsuit in D.D.C. (Blue Ridge Env. Def. Fund v. McCarthy) for 13 more source categories PQBS not included 10 | Clean Air Act Update Fall 2016
112(d)(6) RTR Deadline Litigation Next steps o Schedule for 20 source categories (CCAT v. EPA) likely to be set in the next 3-4 months o Schedule for 13 source categories (Blue Ridge v. EPA) likely to be set by late 2017 o EPA will likely focus resources on these 33 RTRs, potentially delaying those not subject to court-ordered deadlines o Monitor for deadline suits covering PQBS RTR 11 | Clean Air Act Update Fall 2016
SSM SIP Call Litigation State and industry challenges to EPA s SSM SIP call (Walter Coke v. EPA) to eliminate SSM and affirmative defense provisions in 38 SIPs o No demonstration that SIPs are substantially inadequate to attain or maintain NAAQS o General duty and work practices provide at all times controls o Ban on affirmative defense provisions contrary to CAA Briefing is essentially complete Oral argument anticipated early 2017 SIPs due Nov 2016 12 | Clean Air Act Update Fall 2016
Questions/Discussion Jeff Knight 202-663-9152 jeffrey.knight@pillsburylaw.com 13 | Clean Air Act Update Fall 2016
