On March 11, 2014, the U.S. Court of Appeals for the District of Columbia Circuit upheld the Environmental Protection Agency’s (EPA) 2012 amended new source performance standards (2012 NSPS) for steam generating units subject to 40 C.F.R. 60, Subparts D, Da, Db, and Dc. In a unanimous decision, the court denied two of the challenges on the merits and refused to consider the remaining challenges as not yet ripe for consideration. The 2012 NSPS finalized revisions upon reconsideration of NSPS amendments finalized in 2009 (2009 NSPS).
The court held that several of the challenges were not yet properly before it because they were not raised during the rule’s public comment period, but instead were raised for the first time in a petition for reconsideration. The court reasoned that such challenges are not subject to judicial review until EPA has acted on the petitions for reconsideration. The challenges improperly before the court related to: (1) the rule’s condensable particulate matter testing requirement for Subpart Da units, (2) the rule’s establishment of a different frequency for periodic visual opacity inspections under Subparts D, Db, and Dc than under Subpart Da, and (3) the agency’s suggestion that it would permit the use of state-law affirmative defenses in the context of 40 C.F.R. 63, Subpart UUUUU mercury and air toxics standards for coal- and oil-fired power plants, while not allowing such defenses in the context of the 2012 NSPS.
The two remaining challenges were initially raised during the rule’s public comment period and were properly before the court; however, the court denied these challenges on their merits. These challenges claimed: (1) that EPA had acted arbitrarily and capriciously in requiring that boilers emitting more than 0.03 lb/MMBtu of particulate matter be subject to an opacity standard and opacity monitoring requirements, while exempting boilers emitting that amount or less, and (2) that EPA did not provide any notice of the opacity standard and opacity monitoring requirements between the proposed and final versions of the 2009 NSPS. In denying the first challenge, the court concluded that EPA’s actions were not arbitrary and capricious as EPA had considered the relevant factors and articulated a rational connection between the facts found and the action taken. In denying the second challenge, the court concluded that even if EPA did “stumble procedurally” during the 2009 NSPS rulemaking, it made up for any procedural error by offering ample notice and opportunity to comment during the 2012 NSPS rulemaking on both the opacity standard and the opacity monitoring requirement.
Pursuant to the court’s decision, the 2012 NSPS remains in effect. For additional information, contact Andrew Holway.