perkins coie llp recent decisions and regulatory developments air & waste management association...

Perkins Coie LLP

RECENT DECISIONS ANDREGULATORY 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


CLEAN AIR ACTCOURT DECISIONS


Murray Energy Corp. v. EPANo. 14-1112 (D.C. Cir. June 9, 2015)

• Industry and state petitioners challenged EPA’s 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 EPA’s 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.


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


Michigan v. EPANo. 14-46 (U.S. oral argument Mar. 25, 2015)

• Industry and the state challenged EPA’s 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.


Utility Air Regulatory Group v. EPA 134 S.Ct. 418 (2014)

• Industry groups challenged EPA’s regulation of GHG emissions from stationary sources under the CAA’s 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.


Utility Air Regulatory Group v. EPA (cont.) 134 S.Ct. 418 (2014)

• The Supreme Court’s 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.


Luminant Generation Co. v. EPA757 F.3d 439 (5th 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 5th Circuit agreed with EPA and held that issuance of an NOV does not constitute “final action”


Delaware Dep’t. of Natural Res. v. EPANo. 13-1093 (D.C. Cir. May 1, 2015)

• State, industry, and environmental groups challenged EPA’s 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 rule’s

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.


Nat’l Ass’n of Mfrs. v. EPA750 F.3d 921 (D.C. Cir. 2014)

• Industry challenged EPA’s 2013 rule lowering the primary NAAQS for PM2.5 from 15.0 μg/m3 to 12.0 μg/m3 as arbitrary and capricious.

• The D.C. Circuit deferred to EPA’s analysis of the scientific basis for revising the NAAQS and upheld EPA’s rule as reasonable.


Wyoming Ref. Co. v. EPANo. 14-1016 (D.C. Cir. June 2, 2015)

• Company challenged EPA’s interpretation and application of the hardship provision under EPA’s 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 company’s arguments that EPA misinterpreted and misapplied the hardship provision and granted deference to EPA’s interpretation and application of the provision.


Nat’l Parks Conservation Ass’n v. EPA759 F.3d 969 (8th 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. 8th 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 company’s interests were not adequately

represented by EPA.


Sierra Club v. EPA762 F.3d 971 (9th 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.

• 9th Cir. disagrees and no deference to EPA.

• CAA requires EPA to apply the regulations in effect at the time of the permit decision.


CLEAN AIR ACTREGULATORY DEVELOPMENTS


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).


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 EPA’s completion of statutory obligation to promulgate emissions standards for source categories accounting for not less than 90% of emissions of specific hazardous air pollutants.


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.


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 EPA’s initiative to increase compliance through advances in monitoring and information technology and incorporate tools, such as advanced monitoring, into enforcement settlements.


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.


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.


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.


Proposed Rules (cont.)

National Ambient Air Quality Standards (NAAQS) for Ozone: 79 FR 75234 (Dec. 17, 2014)

Revises primary standard to a level within the range of 0.065 to 0.070 ppm, and the secondary standard to within the range of 0.065 to 0.070 ppm.

State Implementation Plans (SIP) for Fine Particulate Matter NAAQS: 80 FR 15340 (Mar. 23, 2015)

Set requirements to implement the PM 2.5 standards established in 2012 and presents options for air agencies to implement SIP requirements.


RCRA Recent Court Decisions


Overview

● Be careful how you manage animal waste

● Air emissions are subject to RCRA?

● Who needs a notice letter anyway

● I have a jury trial!

● What happened to § 261.4(a)(16)


Community Ass’n for Restoration of the Envt. v. Cow Palace, The Dolsen Companies, and Three D

No. 13-3016 (E.D. Wash. Jan. 14, 2015)

• Court granted summary judgment to environmental groups and found that RCRA applies to discarded manure so as to make it a solid waste under RCRA.

• Court found that diary over-applied manure to its fields in amounts higher the effective fertilizer rates, stored manure in unlined lagoons and placed manure on un-lined native soils.

• Court found that the dairy’s handling practices constituted open dumping and an imminent and substantial endangerment due to elevated nitrates in drinking water.

• Court left open two issues for trial: whether surface water was being contaminated and relief to which the plaintiffs are entitled.

• Dairy filed a motion to certify for interlocutory appeal.


Ctr. for Cmty. Action & Envtl. Justice v. BNSF R. Co. 764 F.3d 1019 (9th Cir. 2014)

• Plaintiffs claimed that diesel particulates constituted solid and hazardous waste and defendants had contributed to the disposal of such waste through operation of rail yard.

• Emissions of particulate matter from diesel locomotive exhaust is not “disposal” under RCRA.

• RCRA not intended to regulate air emissions from locomotives.


Little Hocking Water Assoc. v. E.I. du PontNo. 2:09–cv–1081 (S.D. Ohio Mar. 10, 2015)

• Non-profit public water utility brought action against du Pont for contamination to well field.

• Source of contamination was emissions of particulate matter that fell onto the ground and then through leaching and stormwater runoff contaminated the soil and groundwater.

• Court declined to follow 9th Cir. and concluded that what constitutes disposal should be made on case-by-case basis.

• Court also rejected argument that the stormwater discharges were exempt under RCRA because they were permitted under CWA. Court held that the exclusion only applies to point source discharges not stormwater runoff from contaminated soil.

• Court also rejected argument that administrative order blocked suit.


• Landowners sued utility under CAA and RCRA for dust and ash omissions from a nearby power plant.

• Court dismissed RCRA imminent and substantial endangerment claim.

• Court held that the claims amounted to an improper collateral attack on the power plant’s permits which authorized emissions.

Little v. Louisville Gas and Elec. Co.33 F.Supp.3d 791 (W.D. Ky. 2014)


Ebert v. General Mills, Inc.48 F. Supp. 3d 1222 (D. Minn. 2014)

• Plaintiffs brought CERCLA cost recovery and RCRA claims against General Mills for past disposal of solution containing TCE.

• General Mills had previously entered into Consent Decree with MPCA under Minnesota’s clean-up statute.

• Court found that Plaintiff had standing under 3rd prong (likelihood that remedy sought will redress injury alleged) notwithstanding that General Mills was performing cleanup.

• No pre-enforcement bar under CERCLA since cleanup under Minnesota’s statute.

• For the same reasons, the Court found that none of the bars to a citizen suit under 6972(b)(2)(B) (diligent prosecution, on-going removal/remedial action under CERCLA) applied.


Citizens Coal Council v. Matt Cansetrale Contracting, Inc.40 F.Supp.3d 632 (W.D. Penn. 2014)

• Environmental groups brought citizen suit against owner storing coal combustion products and coal refuse. Alleged that storage created an imminent and substantial endangerment.

• Court denies Defendant’s Motion to Dismiss.

• Bevill Amendment inapplicable – materials were solid wastes under statute.

• Fact that Pennsylvania had determined materials constituted a beneficial use – inapplicable.


Leese v. Lockheed Martin Corp.6 F. Supp. 3d 546 (D.N.J. 2014)

• Imminent and substantial endangerment case.

• Contamination at or below screening levels insufficient to establish imminent and substantial endangerment claim.


Easler v. Hoechst Celanese Corp.No. 7:14–00048–TMC (D.S.C. August 5, 2014)

• Imminent and substantial endangerment case.

• Court denied motion to dismiss.

• While contamination had not yet migrated to plaintiff’s property, Court held that plaintiff had standing and met imminent and substantial endangerment standard.

• Court also held that medical monitoring may, be a type of injunctive relief allowed under RCRA.


City of Hurricane v. W.V. Disposal Service, Inc.36 F.Supp.3d 692 (S.D.W.V., 2014)

• Failure to provide adequate notice case.

• Plaintiff failed to provide 90 days' notice before filing imminent and substantial endangerment suit.

• There is an exception if suit concerns a violation of subchapter III (hazardous waste).

• Court held that there were factual issues of whether wastes were hazardous wastes and therefore motion to dismiss denied.

• Court held that if only one of the wastes was hazardous, the plaintiff would have a hybrid compliant exempt from the RCRA notice provision.


Schmucker v. Johnson Controls, Inc.No. 3:14–CV–1593 JD (N.D. Ind. Mar. 2, 2015)

• Failure to provide adequate notice case.

• Plaintiff failed to provide 60 and 90 days advanced notice before filing citizen suit under RCRA for both alleged violation of permit/standard and imminent and substantial endangerment suit.

• Court held that the subchapter III (hazardous waste) exception to the advanced notice requirement applies to citizen suits in RCRA authorized states just as suits claiming violation of the federal regulations.


North Carolina Environmental Justice Network v. TaylorNo. 4:12-cv-154 (E.D. N.C. Dec. 29, 2014)

• Holding that citizen plaintiffs are entitled to a jury trial on civil penalties for violations of CWA and RCRA.

• Court held that the claims for injunctive relief under the citizen suit provisions are not inextricably tied to the legal penalties.


Nat. Res. Def. Council v. EPA755 F.3d 1010 (D.C. Cir., 2014)

• Challenge to EPA 1998 Comparable Fuels Exclusion Rule which excluded from regulations fuels made from RCRA hazardous waste so long as the fuels were comparable to commercial fossil fuels. 40 CFR § 261.4(a)(16).

• D.C. Circuit held that EPA had no discretion under § 6924(q) of RCRA to exempt fuels derived from hazardous waste.

• Ruling is important since because the regulations have been in place for a long time and have been relied upon by fuel recovery and recycling industry.


Sierra Club v. EPA755 F.3d 968 (D.C. Cir., 2014)

• Challenge to EPA 2008 Gasification Exclusion Rule which excluded from RCRA certain hazardous residuals when the residuals are inserted into gasification units located at petroleum refineries to produce synthetic gas which is burned for energy recovery. 40 CFR § 261.4(a)(12).

• D.C. Circuit held that the rule violates the plain language of RCRA § 6924(q).

• Less impact than the Comparable Fuels Exclusion Rule.


RCRA Regulatory Developments


Definition of Solid Waste (DSW) Final Rule: 80 FR 1694 (January 13, 2015)

• Effective July 13, 2015.

• Overall purpose is to tighten up recycling requirements for both on-site recycling (generator-controlled) as well as off-site recycling.

• For generators, new requirements for: the storage of hazardous secondary materials, notification, documenting legitimate recycling or send HSM to permitted/verified reclamation facility, emergency preparedness and response and recordkeeping.

• Off-site recyclers will be required to either have a permit or obtain a verified recycler variance. To obtain a variance, recycler must: demonstrate legitimacy, have financial assurance and no RCRA violations for previous 3 years or must provide credible evidence that facility will properly manage HSM, have proper equipment, manage the residuals and address risk to nearly communities.


Definition of Solid Waste (DSW) (cont.)

• Explicitly prohibits sham recycling and re-affirms the 4 legitimacy factors under 40 CFR § 260.43:• HSM must provide a useful contribution to the recycling process• Recycling must produce a valuable product or intermediate• HSM must be managed as valuable commodities• Product of recycling must be comparable to a legitimate product or

intermediate

• Remanufacturing exclusion for certain higher-value spent solvents.

• Strengthening existing variance and non-waste determination provisions.


Disposal of Coal Combustion Residuals From Electric Utilities Final Rule: 80 FR 21302 (April 17, 2015)

• CCRs are to be managed as solid wastes

• Criteria that facilities will need to evaluate:• Structural integrity requirements including periodic

structural stability assessments by a qualified engineer• Groundwater monitoring and corrective action• Location restrictions• Operating criteria• Notification and Record Keeping• Closure• Beneficial use


NEPADecisions


Delaware Riverkeeper v. FERC753 F.3d 1304 (D.C. Cir. 2014)

• Tennessee Gas submits 4 separate project proposals to FERC to upgrade approx. 200 miles of gas pipeline.

• FERC issues FONSI on second project without considering cumulative impacts of other projects.

• FERC violated NEPA when it segmented its review giving no consideration to the three other connected, contemporaneous, closely related and interdependent projects.

• FERC’s EA was deficient in its failure to include any meaningful analysis of the cumulative impacts of the four projects.


Sierra Club v. Bureau of Land Management2015 WL 3388865 (9th Cir. 2015)

• BLM grants a right-of-way permit over federal land for a wind energy project on private land.

• BLM had no duty under the ESA to consult with FWS on direct/indirect effects of wind project. No agency action or funding with respect to wind energy project.

• BLM was not required under NEPA to prepare an EIS under NEPA for the wind energy project.

• The road project and wind energy project were not connected, cumulative or similar action. Each project had independent utility.


High Country Conserv. Advs. v. U.S. Forest Service52 F. Supp. 3d 1174 (D. Colo. 2014)

• Environmental petitioners challenged a U.S. Forest Service decision approving mining exploration activities in western Colorado.

• Petitioners argued that the Forest Service failed to adequately consider the effects of methane emissions from the proposed mining activities in its NEPA analysis.

• In its EIS, the Forest Service quantified the estimated methane emissions but did not thoroughly discuss the impacts of these emissions.


High Country Conserv. Advs. v. U.S. Forest Service (cont.)52 F. Supp. 3d 1174 (D. Colo. 2014)

• The Court found that the Forest Service acted arbitrarily and capriciously in not discussing the impacts of methane emissions in the EIS and enjoined the exploration activities.


Questions?

Jeffrey L. HunterPerkins Coie LLP1120 N.W. Couch Street, 10th FloorPortland, OR 97209(503) [email protected]

mailto:[email protected]



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