ORAL ARGUMENT SCHEDULED FOR APRIL UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Transcription

1 ORAL ARGUMENT SCHEDULED FOR APRIL UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT NATURAL RESOURCES DEFENSE COUNCIL, et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et ai., Respondents. Docket No (consolidated with Docket Nos , , and EP A'S MOTION FOR VOLUNT ARY PARTIAL VACATUR AND REMAND Respondent United States Environmental Protection Agency ("EP A" hereby moves for voluntary parial vacatu and remand of its challenged determinations under Section 1 12 of the Clean Air Act ("CAA" in the rule at issue in this case, referred to in our brief as the "2004 Rule,"11 that "no emission reduction" is the appropriate MAtT flooi. for certain process unit groups identified in the rule. EP A requests this relief so that it may reevaluate and revise those MACT floor determinations to conform to this Cour's interpretation of the CAA in its recent decision in Sierra Club v. EPA, No (D.C. Cir. March 13, "National Emission Standards for Hazardous Air Pollutants: Plywood and Composite Wood Products; Effuent Limitations Guidelines and Standards for the Timber Products Point Source Category; List of Hazardous Air Pollutants, Lesser Quantity Designations, Source Category List," 69 Fed. Reg. 45,944 (July 30, Y The contested limitations are so known because they are based on the Maximum Achievable Control Technology ("MACT" requirements in Clean Air Act ("CAA" Section 1 l2(d, 42 U.S.C. 7412(d.

2 EP A developed the challenged "no emissions reduction" MACT floors for the process unit groups specified in Table 1 of the preamble to the 2004 Rule, 69 Fed. Reg. at 45,949, based on substantially the same interpretation of Section 1 12 of the Clean Air Act that the Court determined to be impermissible in Sierra Club. Accordingly, EP A requests that the Court vacate and remand EP A's "no emission reduction" MACT floor determinations in the 2004 Rule to allow EP A to establish MACT floors with respect to the process unit groups at issue consistent with the Court's recent opinion. EP A is not requesting vacatur or remand of anything other than the challenged "no emissions reduction" MACT floor determinations for the above-mentioned process unit groupsß By vacating and remanding the MACT floors in question, the Court would not have to address the arguments raised in Argument Section I öfthe Environmental Petitioners' brief. However, EP A believes that it stil would be appropriate for the Court to address the two remaining issues raised by Environmental Petitioners, as well as the issues raised by industry petitioner Louisiana-Pacific Corp. ("L-P". These issues are not affected by the Court's interpretation of the CAA in Sierrà Club, wil be unaffected by whatever action that EP A may take on remand, and can be resolved now. Moreover, because these issues have already been fully briefed and the Cour has already set a date for oral argument (April 23, 2007, resolving these issues now would facilitate the efficient use of judicial resources. JI The MACT floors and MACT control requirements for the other process unit groups covered by the 2004 Rule are not challenged by the Environmental Petitioners and are not at issue in this case. See EP A Merits Br. at 30, n.26. Accordingly, EP A does not seek vacatur or remand of those unchallenged standards, nor is there a reason for doing so. " 2

3 ARGUMENT These consolidated cases challenge certain aspects of the 2004 Rule as well as one aspect of the revised and amended rule that EP A issued in 2006, after administratively reconsidering the 2004 Rule. See "National Emission Standards for Hazardous Air Pollutants: Plywood and Composite Wood Products; List of Hazardous Air Pollutants, Lesser Quantity Designations, Source Category List; Final Rule," 71 Fed. Reg (Feb. 16,2006 (hereinafter the "2006 Rule".1' The 2004 and 2006 Rules were promulgated under the authority of CAA Section 112 and require affected facilities that manufacture plywood and composite wood products ("PCWP" sources to reduce their emissions of hazardous air pollutants ("HAPs". Environmental Petitioners have challenged three aspects of the 2004 and 2006 Rules: (1. " EPA's authority under CAA Section 112 to identify "no emissions reduction" as the emission limitation achieved by the statutorily-defined best-performing sources within certain PCWP process unit groups (i.e., the MACT floor, Env. Br. at Arg. Sect. I; (2 EP A's authority to establish and "delist" pursuant to CAA Section 1 1 2( c (9 a subcategory of "low-risk" PCWP sources that emit levels of HAPs that pose very low risks to human health and the environment, Env. Br. at Arg. Sect. II; and (3 the existing source compliance deadline established in the 2006 Rule, Env. Br. at Arg. Sect. II. Petitioner L~P challenges EP A's decision to include certain hardboard presses that L-P operates in the group of "reconstituted wood product presses" regulated under the 2004 Rule and EPA's decision not to adopt a cost-based variance procedure. See generally L-P Br. l' The regulatory history of brief. the 2004 and 2006 Rules is addressed at pages 8-20 ofep A's merits 3

4 As we establish below, the appropriate course for the Court at this juncture is to vacate and remand to EP A the challenged "no emission reduction" MACT floor determinations in the 2004 Rule and to decide the remaining issues in the case, as none of the latter is affected by the Sierra Club decision and none wil be affected by EPA's action on remand. i. Partial Vacatur and Remand Is Appropriate in Light of Sierra Club This Court's March 13,2007, decision in Sierra Club addresses EPA's establishment of MACT standards, including standards of "no emission reduction," for emissions of HAPs from brick and ceramic kilns ("Brick Rule". In its decision, the Court vacated those standards, holding that the methodology EP A used to establish the standards, including the "no emission reduction" MACT floors, was unlawfl. The methodology EP A used to establish the "no emission reduction" MACT standards in the Brick Rule is substantially the same as the methodology EP A used to determine the challenged "no emissions reduction" MACT floors for certain PCWP process unit groups in the 2004 Rule. Consequently, EP A recognizes that the "no emission reduction" MACT floors in the 2004 Rule derived using that methodology are inconsistent with the Cour's interpretation of the CAA in the Sierra Club decision, and thus should be vacated and remanded to EPA for revision consistent with the interpretation of the CAA set out in that opinion. EPA's "no emission reduction" MACT floor determinations in the 2004 Rule were not codified as par of the regulation, thus there are no regulatory provisions to be vacatedßln Sj As to MACT emission standards, the regulatory text addresses only those process unit groups for which EPA established MACT control requirements. For some process unit groups for which EPA determined that the MACT floor is "no emission reduction" (and one group for which EPA imposed MACT control requirements, the 2004 Rule and the regulatory text impose additional "work practice" requirements that apply independently ofmact and that have not been 4

5 certain circumstances, the fact that the regulation itself does not need to be set aside suggests that all that is required is a remand once the agency realizes it has erred in its decisionmaking. However, in this case, EP A made final determinations and took action regarding "no emission reduction" MACT floors for certain process units. Furthermore, EP A has already concluded that the methodology it utilized in making those determinations in the 2004 Rule is inconsistent with the Court's reading of the CAA in Sierra Club. Thus, on remand, there is "little or no prospect" of the challenged MACT floor determinations "being readopted upon the basis of a more adequate explanation of the agency's reasoning." Ilinois Public Telecommunications Ass 'n v. FCC, 123 F.3d 693, 693 (D.C. Cir In such cases, "the practice of the court is ordinarily to vacate" the challenged agency action. Id. In this case, the EP A actions to be vacated (i. e., the challenged "no emission reduction" MACT floor determinations are not reflected in the promulgated regulation, but rather in the preamble to the 2004 Rule. As we explained in our merits brief, at 11-15, EP A applied in the 2004 Rule a "process unit group" approach whereby it organized process units (i.e., equipment at a PCWP facilty classified according to its function, such as a blender, dryer, press, etc. into groups and determined the MACT floor for each process unit groupß Table 1 of the preamble to the final 2004 Rule identifies the process unit groups for which EP A determined that "no emission reduction" was the appropriate MACT floor. 69 Fed. Reg. at 45,949. EPA went on to describe its determinations and its rationale for ~etermining that "no emission reduction" is the challenged in this litigation. Accordingly, the work practice requirements need not be vacated or remanded and should remain in place. J EP A's "process unit group" approach is not challenged by any par and is not at issue in this litigation. 5

6 appropriate MACT floor for certain process unit groups. Id. at 45, EP A seeks vacatur and remand exclusively with respect to the challenged "no emission reduction" MACT floor determinations described in the above-cited portions of the 2004 Rule. The Court's evaluation of whether remand is appropriate also includes consideration of "the seriousness of the order's deficiencies (and thus the extent of doubt whether the agency chose correctly and the disruptive consequences of an interim change that may itself be changed." Alled-Signal; Inc. v. United States Nuclear Regùlatory Comm 'n, 988 F.2d 146, (D.C. Cir (internal citations omitted. In that it conflicts with this Court's reading of the CAA in Sierra Club, the 2004 Rule has a deficiency that must be addressed to conform to the Cour's reading of the CAA in Sierra Club. Moreover, EPA does not anticipate that any unnecessary disruption or potential prejudice to any par wil result from vacatur and remand of the challenged MACT floors as compared to a remand without vacatur. As we explain, the challenged MACT floors do not require sources to install control technology or undertake any other affrmative measures-and are distinct from the other unchallenged standards and requirements of the 2004 Rule. II. The Court Should Decide the Remaining Issues jn the Case as They Are Unaffected by Sierra Club and Wil Not Be Affected by Action EP A May Take on Remand The challenged "no emission reduction" MACT floor determinations for which EP A seeks vacatur and remand are distinct and can be severed from the other aspects of the 2004 and 2006 Rules thatare challenged in these petitions for review. Those issues have already been briefed and are scheduled to be argued shortly. EPA believes that the Court should resolve those issues now. 6

7 First, Environmental Petitioners' challenge to the 2004 Rule's establishment and delisting of the low-risk PCWP subcategory raises novel and fundamental issues of statutory interpretation that EP A believes would be appropriate for the Cour to resolve at this time. EP A established and delisted that subcategory under a different statutory provision (i.e., CAA Section 112(c(9 and procedure than was at issue in Sierra Club. Moreover, a source's eligibility for the low-risk subcategory and EP A's consideration of a low-risk demonstration submitted by a source wil be unaffected by vacatu and remand of the "no emission reduction" MACT floors or by any emission limitation that EP A may subsequently establish. This is because the procedure to determine whether a PCWP source is "low-risk" considers the actual HAP emissions from the entire PCWP affected source, regardless of whether those HAP emissions are from process units that would be subject to MACT control requirements. Accordingly, EP A is not requesting that provisions of the rules pertaining to the low-risk subcategory - i. e., Appendix B to Part 63 Subpar DDDD and EPA's designation of eightlow-risk affected sources, 69 Fed. Reg. at 45,954/1 - be vacated, and those issues are ripe for a decision by the Court. Lastly, given the impending October 2008 compliance deadline, resolution of this issue now wil be of substantial benefit to,ep A, States that implement tle rules through their CAA Title V programs, and the regulated community. Second, because no compliance obligations or deadlines currently apply with regard to the challenged "no emission reduction" MACT floor determinations, Environmental Petitioners' challenge to the 2006 Rule's establishment of an October 1,2008, compliance deadline for the other MACT control requirements that EP A promulgated is also unaffected by the requested parial vacatu and remand. Moreover, Sierra Club does not address the issue ofepa's authority 7

8 to establish MACT compliance deadlines. Accordingly, there is no reason the Court should not address that issue now. Third, the issues raised by petitioner L-P are unaffected by Sierra Club and wil not be affected by EPA's determinations on remand because the process unit groups at issue in L-P's petition for review are not among those for which EP A determined that "no emission reduction" is the appropriate MACT floor. L-P complains that its hardboard presses were included in an improper process unit group, and therefore that the emissions limitations are based on a MACT technology that is riot appropriate for its presses. L-P's petition for review do,es not raise the question of whether any particular emissions limit is appropriate, but only whether EP A properly exercised its discretion to place certain equipment at L-P's facility into a paricular process unit group. Sierra Club does not address this issue; however, we note that Judge Wiliams in his concurrence acknowledged EP A's discretion to "distinguish among classes, tyes and sizes of sources within a category or subcategory." In sum, Sierra Club does not addresses the specific issues raised by L-P, and EPA's determinations in the 2004 Rule as they pertain to L-P presses would not be altered by EPA's review of the "no emission reduction" MACT floors on remand. L-P's issues are ripe for consideration and the Court should address them now. CONCLUSION EPA's motion for a voluntar parial vacatur and remand of the 2004 Rule's challenged "no emission reduction" MACT floors should be gr"anted, and the Court should resolve all other pending issues. 8

9 Respectfully submitted, Of Counsel: MICHAL W. THRIFT Offce of General Counsel (2344-A U.S. Environmental Protection Agency 1200 Pennsylvana Ave., NW Washington, DC Dated: April 2, 2007 MATTHEW J. MCKEOWN Acting Assistant Attorney General Environment and Natural Resources Division c1j~(auj ~ DAVID S. GUALTIERI /. DAVID GUNTER United States Deparent of Justice Environment and Natural Resources Division Environmental Defense Section P.O. Box Washington, D.C (

10 CERTIFICATE OF SERVICE I hereby certify that on the date below I caused the foregoing EP A'S MOTION FOR VOLUNTARY PARTIAL VACATUR AND REMAND to be delivered by hand to the U.S. Court of Appeals for the District of Columbia Circuit and served by (.pdf attachment in accordance with Fed. R. App. P. 25(c(1(D, on the following counsel of record: James S. Pew Earhjustice 1625 Massachusetts Ave., NW Suite 702 Washington, DC jpewêearthjustice.org Counsel for Petitioner Sierra Club John D. Walke Natual Resources Defense CounèIl.1200 New York Ave., NW Suite 400 Washington, DC jwalke(inrdc.org Counsel for Petitioners NRDC and Environmental Integrity Project Russell S. Frye FryeLaw PLLC 3050 K Street, NW Suite 400 Washington, DC rfreêfryelaw.com. Counsel for Petitioner Louisiana-Pacific Corp. Brock Russell Landry Venable LLP 575 7th Street, NW Washington, DC brlandryêvenable.com Counsel for Intervenor the Composite Panel Assoc. Claudia Margaret O'Brien Cassandra Sturkie Latham & Watkins 555 Eleventh Street, NW Suite 1000 Washington, DC claudia.o'brienêlw.com Cassandra.Sturkie(iL W.com Counsel for Intervenors American Forest and Paper Assoc., Inc. and AP A - The Engineered Wood Assoc. Guy J. Sternal Eisenhower & Carlson, PLLC 1201 Pacific Ave., Suite 1200 Tacoma, W A gsternal(ieisenhowerlaw.com Counsel for Intervenor AP A - The. Engineered Wood Assoc.

11 Paul H. Amundsen Amundsen & Smith 502 East Park Avenue (32301 Post Office Drawer 1759 Tallahassee, Florida pamundsen(iamolaw.com Counsel for Intervenors Scotch Plywood Co., Coastal Industrial Products Co., and Hood Industries, Inc. Thomas E. Stares L. Eden Burgess Andrews Kurh LLP 1350 I Street NW Suite Washington, DC thomasstares(iandrewskurh.com edenburgess(iandrewskurh.com Counsel for Amicus Curiae National Association of Clean Air Agencies Dated: April 2, 2007 Peter Lawrence de la Cruz Keller & Heckman 1001 G Street, NW Suite 500 West Washington, DC delacru(ikhlaw.com Counsel for Amicus Curiae the Formaldehyde Council, Inc. Alan Holmes McConnell William F. Lane Kilpatrick Stockton LLP 3737 Glenwood Avenue Suite 400 Raleigh, NC BLane(iKilpatrickStockton. com Counsel for Intervenor the American Home Furnishings Allance l.t~u;~' - David. Gualtieri I. Counsel for Respondent 2