14 August 2019

Sidley Environmental Trends

Topics discussed this week include:

  • EPA issues first of three revisions to coal ash regulations
  • EPA supports request to formally end Clean Power Plan litigation
  • States sue NHTSA over rule reducing CAFE penalties
  • EPA proposes to revise New Source Review standards
  • EPA moves to dismiss claim seeking asbestos rulemaking under APA

EPA issues first of three revisions to coal ash regulations. On July 30, 2019, the Environmental Protection Agency (EPA) proposed the first of three planned revisions to the regulations governing the beneficial use and disposal of coal combustion residuals (CCR). The current regulations established in the April 17, 2015 final rule include a comprehensive set of requirements for CCRs, commonly known as coal ash, generated at coal-fired power plants.

The proposed rule includes five major revisions:

  • replace the 12,400-ton threshold that triggers an environmental demonstration for certain beneficial uses with specific location-based criteria
  • establish a single approach that would apply to all temporary placement of unencapsulated CCR on the land, regardless of whether the pile is stored on-site or off-site or is destined for beneficial use
  • revise the annual groundwater monitoring and corrective action report requirements
  • establish an alternative groundwater protection standard for boron using the same methodology used for other CCR constituents, assuming boron is added to the constituents monitored in assessment monitoring
  • revise the CCR website requirements to make relevant facility information required by the regulations immediately available to the public

The 60-day public comment period will start when the proposal is published in the Federal Register.

EPA supports request to formally end Clean Power Plan litigation. On July 31, the EPA filed a response in support of industry petitioners in West Virginia v. EPA to formally end litigation over the Obama administration’s Clean Power Plan (CPP). Industry and certain states had challenged the CPP, but the U.S. Court of Appeals for the District of Columbia has held the case in abeyance since 2017 while the Trump administration reconsidered the CPP. EPA stated that the court should dismiss all of the petitions challenging the CPP because the agency has repealed it. As we reported previously, EPA has also finalized a rule to replace the CPP, known as the Affordable Clean Energy rule, which has already been challenged.

States sue NHTSA over rule reducing CAFE penalties. On August 2, 12 states and the District of Columbia filed suit in the U.S. Court of Appeals for the Second Circuit challenging a July 26, 2019, National Highway Traffic Safety Administration (NHTSA) rule that would reduce civil penalties for violations of motor vehicle average fuel economy standards. In the petition, the petitioners challenge NHTSA’s action to nullify an earlier appellate ruling that reinstated the $14-per-tenth-of-a-mile inflation-adjusted penalty for automakers who fail to meet the corporate average fuel economy (CAFE) miles-per-gallon targets. In 2015, Congress increased the civil penalty from $5.50 to $14 due to inflation adjustments. However, in 2017 the Trump administration temporarily decreased the penalty to $5.50, pending a reevaluation of the inflation adjustment. The $14 penalty was reinstated on appeal only to be reduced again by NHTSA. Opponents to the rulemaking argue it would cause significant job losses due to lost opportunities to develop and use innovative technologies to comply with CAFE standards through 2025. Automakers have paid more than $890 million in CAFE civil penalties through model year 2014 vehicles.

EPA proposes to revise New Source Review regulations. On August 1, the EPA proposed formalizing a rule that would revise the EPA’s New Source Review (NSR) program to allow the agency to consider both increases and decreases in emissions during step one of the NSR process. EPA had previously issued guidance authorizing this approach, as we reported in a previous update. EPA stated that considering both increases and decreases in emissions at the first step will help the agency determine a project’s true effect on the environment and more accurately determine whether an NSR permit is required.

EPA moves to dismiss claim seeking asbestos rulemaking under APA. On July 26, EPA asked the United States District Court for the Northern District of California to dismiss the Administrative Procedures Act (APA) portion of a lawsuit filed by non-governmental organizations challenging EPA’s denial of their petition for rulemaking to require manufacturers, importers and processors of asbestos and asbestos-containing products to report the quantity of imported asbestos, the use of asbestos, the use of products that contain asbestos and the risk of exposure to workers and the public. The plaintiffs have asserted claims under both the Toxic Substances Control Act (TSCA) and the APA, but EPA has argued that the plaintiffs cannot have two bites at the apple by bringing both claims. EPA further urged that the APA provides for district court review of “final agency action for which there is no other adequate remedy in court,” but the plaintiffs have an “alternative adequate remedy” through TSCA, which provides procedures for district court review of petition denials. Plaintiffs contend that its remedy is not exclusive but is “in addition to, and not in lieu of, other remedies provided by law.”

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