Whats New with New Source Review? April 3, 2014 Prevention of - - PowerPoint PPT Presentation

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What’s New with New Source Review?

April 3, 2014

Prevention of Significant Deterioration

PSD: Where the action is… .

2

PSD: Background Basics

• CAA pre-construction permitting program – 42 U.S.C.

§7475

– Applies to the construction of new, or to “major modifications” of existing, “major stationary sources” of air pollutants – Applies in areas that meet the National Ambient Air Quality Standard (NAAQS) for the pollutant in question – Triggered by “physical change” or “change in the method of operation” that causes a “significant net emissions increase” of a NAAQS pollutant – Imposes significant, expensive, and time-consuming

• bligations, including installation of best available

control technology (BACT)

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PSD/NSR Enforcement History

• In the beginning …

.

– EPA brought suits in a number of industrial sectors (pulp & paper, petroleum, cement) – Hit its stride in 1999: EPA/ DOJ announced their Coal- Fired Power Plant PSD/ NSR Enforcement Initiative – Often, EPA asserts PSD/ NSR claims based on actions (alleged major modifications) that occurred decade(s) earlier – Has resulted in some of the largest fines and most costly corrective measures of any environmental enforcement program

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PSD: Recent Developments

• 2 lines of recent cases:

– Statute of Limitations (“SOL”) – NSR Reform Rules

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PSD SOL: Penalties

• CAA does not have its own SOL
• For Penalties:

– Widespread consensus among courts that general federal 5 year SOL applies

• 28 U.S.C. §2462: “Except as otherwise provided... An

action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date the claim first accrued … ” – Theory: violation is discrete, one-time failure to obtain preconstruction permit

• See, e.g., U.S. v. Illinois Power Co.: “[ P] reconstruction

permit violations do not constitute violations that continue past the completion of construction.” [ 245 F. Supp. 2d 951, 956 (S.D. Ill. 2003)]

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PSD SOL: Injunctive Relief – Historically

• For injunctive relief:

– Private plaintiffs:

• 5 year SOL bars injunctive relief
• Majority view: based on concurrent remedy doctrine
• Still holds true today; e.g.,
• Sierra Club v. Otter Tail Power Co., 615 F.3d 1008 (8th Cir. 2010)
• Nat’l Parks and Conservation Ass’n, Inc. v. Tennessee Valley Auth.,

502 F.3d 1316 (11th Cir. 2007)

• Sierra Club v. Duke Energy Indiana, Inc., 2010 WL 3667002 (S.D.

Ind., Sept. 14, 2010)

– Government plaintiffs:

• Courts split, but majority held §2462 did not preclude government from

seeking injunctive relief beyond 5 years – See, e.g., U.S. v. Murphy Oil, 143 F. Supp. 2d 1054, 1080 (W.D.

• Wis. 2001)

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PSD SOL: Injunctive Relief

Times, they are a-changin’… …

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PSD SOL: Latest Cases

• U.S. v. Midwest Generation (7th Cir. 2013)
• PDEP v. EME Homer City Generation, et. al (3rd Cir.

2013)

• Both bar government from seeking injunctive relief

for alleged violations accruing more than 5 years earlier

– But, in both, intervening transactions occurred

• Former owners undertook modifications

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SOL: Midwest Gen.

• 2009/ 2010: US and IL sued current and former
• wners of several coal-fired power plants alleging

PSD violations for modifications by former owner in 1990s without PSD permit*

* Agencies also asserted a claim for a project undertaken by current owner; it was not before the Court so we won’t be discussing it.

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SOL: Midwest Gen. District Court Decision

694 F.Supp.2d 999 (N.D. Ill. 2010)

• Focuses on tolling of the 5 year SOL
• Former owner: Dismisses claims in their entirety

– Civil penalties: time-barred – Injunctive relief: former owner cannot be compelled to modify sources it no longer owns and has no right to access

• Current owner: Dismisses most claims*

– Civil penalties: time-barred – Injunctive relief: §7475 prohibits the construction of a major emitting facility without a permit; it does not prohibit subsequent operation of the facility

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SOL: Midwest Gen. Seventh Circuit Appellate Decision

720 F.3d 644 (7th Cir. 2013)

• Affirms District Court, but doesn’t explain its

reasoning

• Critical holdings/ findings:

– 5 year SOL applies for penalties and injunctive relief

• “By the time the suit commenced, between 10 and 15 years

passed since the modifications were finished, at least double the five-year period of limitations.” [ 720 F.3d at 646]

• Expiration of SOL cuts off liability and entitles defendant “to

proceed as if it possessed all required construction permits” [ 720 F.3d at 648]

• SOL not tolled by any time period involved in discovering the

alleged violations

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SOL: Midwest Gen. Seventh Circuit Appellate Decision

• Rejects “continuing violation” theory

– “The violation is complete when construction commences without a permit in hand. Nothing in the text of §7475 even hints at the possibility that a fresh violation occurs every day until the end of the universe if an owner that lacks a construction permit operates a completed facility.” [ 720 F.3d at 647]

• Rejects “continuing injury” theory

– “What these plants emit today is subject to ongoing regulation under rules other than §7475. Today’s emissions cannot be called unlawful just because of acts that occurred more than five years before the suit began.” [ 720 F.3d at 648]

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SOL: Homer City

• 2011: States sued current and former owners of

several power plants alleging PSD violations for modifications made by former owner in 1990s without PSD permit and without installing BACT

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SOL: Homer City Third Circuit Appellate Decision

727 F.3d 274 (3d Cir. 2013)

• Key holdings:

– PSD is a pre-construction program imposing one-time requirements – No continuing violation for operating post-construction

• “Nowhere do [ the PSD] provisions authorize enforcement

against a person who ‘operates’ a source without satisfying applicable PSD requirements.” [ 727 F.3d at 285]

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SOL: Homer City Third Circuit Appellate Decision

• Current owner:

– No relief available because did not violate anything

• Former owner:

– Penalties barred by 5 year SOL – No injunctive relief either

• Purpose of injunctive relief is to enjoin or prevent a

violation; here violation is complete so nothing to enjoin

• “CAA does not authorize an injunction against former owners or
• perators for a wholly past PSD violation, even if that violation

causes ongoing harm.” [ 727 F.3d at 291]

• Throughout: Discomfort with practical difficulties of
• rdering former owner to install BACT

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SOL: Open Questions

• How much did the fact that it was former owners who

undertook the modifications matter to the Courts?

• One-time versus on-going violation issue:

– Nat’l Parks and Conserv. Assoc. v. Tenn. Valley Auth., 480 F.3d 410 (6th Cir. 2007)

• Where state SIP requirements are worded differently so as

to impose on-going requirements in their PSD programs (i.e., “may not construct or operate without permit… ”), violation is continuing and enforcement is possible

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SOL: More Open Questions

• Are Courts just trying to grapple with older cases?
• How will agencies’ enforcement strategy change?

– Time constraints for pursuing actions

• What do these cases mean for other “one-time”

claims like failure to submit notices?

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NSR Reform

• 2002 NSR Reform Rules:

– Among other things, changed way sources can calculate “significant net emissions increases” – “Major modifications”: a change that causes an actual increase in emissions

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NSR Reform: U.S. v. Detroit Edison

• 2010: Utility undertook project; prior to construction,

calculated “projected actual emissions” post-project; concluded NSR was not triggered

• 2010: EPA sued utility alleging project was major

modification

– EPA disagreed with utility’s pre-project emissions projection and extent it relied on demand growth exclusion

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NSR Reform: Detroit Edison Sixth Circuit Appellate Decision

711 F.3d 643 (6th Cir. 2013)

• Key holdings:

– EPA cannot “second-guess” operator’s emissions projection – But, EPA is not categorically prevented from challenging violations

• Can evaluate whether operator’s pre-project projection

complied with the regulations “at a basic level” – Rejects EPA’s argument that operators may not control post- project emissions to avoid triggering NSR

• Remands to District Court to determine whether
• perator complied with requirements “at a basic

level”

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NSR Reform: Detroit Edison Further Proceedings

• District Court on Remand [ 2: 10-cv-13101 (E.D. Mich.

March 3, 2014)] :

– EPA is only entitled to a “surface review” of operator’s pre-project projections – “Anything beyond this cursory examination would allow EPA to ‘second-guess’ a source operator’s calculations; an avenue which the Sixth Circuit explicitly foreclosed to regulators.” [ at 2-3] – Operator followed requirements

• Both Courts took EPA to task for pursuing case: by

time of litigation, existing data showed that actual emissions did not increase!

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NSR Reform: What Does This Mean?

• Are the following “major modifications”?

– Pre-project projections showing a significant net increase?

• What if the increase doesn’t actually happen?

– Pre-project projections showing no emissions increase, but an actual post-project increase occurs as a result of the project? – No pre-project projection is made?

• Recordkeeping/ reporting violation?
• Remedy – enjoin project?

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NSR: Moving Forward

• Harder for EPA to bring cases

– SOL concerns for injunctive relief in historical modification cases – Proof will be more difficult on post-2002 projects

• Wait and see how EPA responds to adverse case law

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WATER, WATER, every where…

April 3, 2014

“Waters of the United States”

• Clean Water Act: Applies to impacts on “waters of

the US”

– Limits and prohibitions on discharges – Permitting requirements (e.g., NPDES, stormwater, construction) – Release reporting

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In this corner…..

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…and in the other corner

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Then…

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… and Now

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Waters of the United States

• “Navigable waters”meaning anything but clear;

subject of intense litigation, guidance and rulemaking

• ver the years, including:

– Solid Waste Agency of Northern Cook County v. US Army Corps of Engineers (SWANCC), 531 U.S. 159 (2001) – Rapanos v. United States, 547 U.S. 715 (2006) – Draft Guidance in April 2011 - withdrawn

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Proposed Rule (Pre-publication draft: 3-25-14)

• Joint USEPA/ COE proposal
• Single definition for CWA
• Public comment period - at least 90

days after publication

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Proposed Rule: Nuts and Bolts

• “Waters of the US”: 2 groups

– “Jurisdictional”: categories automatically included without additional analysis required – “By determination”: “other waters” included following a case-by-case determination

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Proposed Rule: Nuts and Bolts

• Jurisdictional waters - The “Big Three”

– Traditional navigable waters – Interstate waters, including interstate wetlands – Territorial seas

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Proposed Rule: Nuts and Bolts

• Plus:

– Impoundments of traditional navigable waters, interstate waters (including interstate wetlands), territorial seas, and tributaries of such waters – Tributaries of other “waters of the US” – Adjacent waters, including adjacent wetlands

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Proposed Rule: Nuts and Bolts

• For “other waters” (i.e., non-jurisdictional)

– Case-by-case determination, showing: – Alone or in combination with other “similarly situated” waters in the region … – “Significant nexus” to the Big Three

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Expressly Excluded Waters

• Expressly excluded, even if within categorical

descriptions:

• Waste treatment systems
• Prior converted cropland
• Ditches excavated in uplands that drain only other

uplands with less than perennial flow

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Pop Quiz, Hotshots…

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Who Makes “WotUS” Policy?

A) USEPA B) USCOE C) Congress D) All of the above E) None of the above

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Answer: E) None of the Above

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Who Won?

• Peter Lehner, NRDC: “This is good news…

”

• Sen. James Inhofe: “This rule shows that …

President Obama is no friend of private property rights or Oklahoma’s economy.”

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Helpful Tips

• Be aware of potential impacts of your company’s

activities and proposed activities

• If planning construction or other changes to your

facility:

– Start early to allow necessary time to consider/ address potential impacts and issues – Allow time to get necessary determinations or permits – Document conclusions and bases for same

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Helpful Tips

• Develop an understanding of which water

bodies/ areas near your facilities are or may be “waters of the US” so you will know whether emergency reporting might be required in the event

• f a release

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Start-up, Shutdown and Malfunction Emissions: A Rocky Road Ahead

April 3, 2014

SSM Emissions: History Lesson

• Long and tortured history of rulemaking and guidance

– 1977 –

• SSM emissions excluded from NSPS compliance
• determination. 42 Fed. Reg. 57, 125 (Nov. 1, 1977)

– 1978 – Policy

• Automatic exemptions for SSM events disallowed
• All periods of excess emissions treated as violations of the

applicable standard

– EPA spends next decades refining position via guidance

• 1982, 1983, 1999, 2001

– Attempts to reconcile CAA requirement that sources “continuously” meet emissions limitations with operational realities

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SSM Emissions: History Lesson

• Major points from 1982 – 2001 guidance:

– Affirmative defenses available – Agencies can use enforcement discretion – Guidances did not alter existing approved SIP provisions

• r existing permit conditions regarding excess emissions

during SSM events(2001 clarification)

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New(est) Proposed SSM Rule

• February 22, 2013 – Proposed Rule (78 Fed. Reg.

12459)

– In response to 2011 Sierra Club petition

• Petition argues that many states’ SIP provisions violate

CAA mandate that emissions limitations be continuously met

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2013 SSM Proposed Rule: Basics

• Startup/ Shutdown Events

– All excess emissions during startup/ shutdown violate the CAA – Startup/ shutdown: planned events

• “Phases of normal plant operation”

– No Affirmative Defense Available – No Enforcement Discretion Permitted – Subject to Both Monetary Penalties and Injunctive Relief

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2013 SSM Proposed Rule: Basics

• Alternative Permit Limits or Regulatory Requirements

(for S/ S events)

– CAA allows “special emission limitations or other control measures or control techniques that are designed to minimize excess emissions” during startup/ shutdown periods – 7 specific criteria for states to consider in creating special SIP provisions for S/ S:

1. Should be limited to specific, narrowly defined source categories using specific control strategies;

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2013 SSM Proposed Rule: Basics

• Recommended criteria, con’t.:

2. Use of a control strategy must be technically infeasible during startup or shutdown periods; 3. Frequency and duration of operation in startup or shutdown mode must be minimized; 4. Should analyze the worse-case emissions that could occur during startup or shutdown; 5. All possible steps to minimize impact of emissions during startup and shutdown must be taken;

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2013 SSM Proposed Rule: Basics

• Recommended criteria, con’t.

6. At all times, the facility must be operated in a manner consistent with good practice for minimizing emissions, and source must have used best efforts regarding planning, design, and operating procedures to meet

• therwise applicable emission limitation; and

7. Actions taken during startup and shutdown periods must be documented by properly signed, contemporaneous

• perating logs or other relevant evidence.

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2013 SSM Proposed Rule: Basics

• Malfunction Events

– Malfunction: unplanned event – Affirmative Defense Remains Available

• 10 specific criteria for states to consider in developing a

special affirmative defense in SIP for malfunction events:

• 1. Excess emissions were caused by sudden, unavoidable

breakdown of technology, beyond control of owner or

• perator;
• 2. Excess emissions (a) did not stem from any activity or event

that could have been foreseen and avoided, or planned for, and (b) could not have been avoided by better operation and maintenance practices;

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2013 SSM Proposed Rule: Basics

• Recommended criteria, con’t.:
• 3. Air pollution control equipment or processes were maintained and
• perated in a matter consistent with good practice for minimizing

emissions;

• 4. Repairs were made in an expeditious fashion when operator knew
• r should have known that applicable emission limitations were

exceeded;

• 5. Amount and duration of excess emissions were minimized to

maximum extent practicable;

• 6. All possible steps were taken to minimize impact of excess

emissions on ambient air quality;

• 7. All emission monitoring systems were kept in operation if at all

possible;

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2013 SSM Proposed Rule: Basics

• Recommended criteria, con’t.:
• 8. Owner or operator’s actions in response to excess emissions were

documented by properly signed, other relevant evidence;

• 9. Excess emissions were not part of recurring pattern indicative of

inadequate design, operation, or maintenance; and

• 10. Owner or operator properly and promptly notified appropriate

regulatory authority

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2013 SSM Proposed Rule: Basics

• Affirmative defense only shields facility from

monetary penalties

– Injunctive relief still available

• I.e., requirement to install additional emissions controls,

modify operations

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2013 SSM Proposed Rule: Basics

• SIP Call

– 36 States must revise SIPs consistent with proposed rule

• States affected within Region 5 – Illinois, Indiana,

Michigan, Minnesota, Ohio

• Other states affected: Maine, New Hampshire, Rhode

Island, New Jersey, Delaware, Virginia, West Virginia, Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee, Arkansas, Louisiana, New Mexico, Oklahoma, Iowa, Kansas, Missouri, Colorado, Montana, North Dakota, South Dakota, Wyoming, Arizona, Alaska, Washington and the District of Columbia

• Revision timeframe – 18 months from date Final Rule is

published Federal Register

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Current Status of Proposed SSM Rule

• Deadline for Final Rule: May 15, 2014

– By agreement with Sierra Club – Second (and last) extension

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Challenges to Proposed Rule

• Everyone’s joining the party…

– Industries’ criticism:

• Doesn’t appropriately account for and address technical

issues associated with different emissions characteristics during SSM event

– Environmentalists’ criticism:

• Affirmative defense for malfunction events –

– Harms citizens’ suits. Affirmative defense makes it more difficult, if not impossible, for citizen suits under the clean air act to proceed. – No penalty jurisdiction. Jurisdiction over assessing CAA penalties lies with the courts not EPA.

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SSM Case Law Developments

• Luminant Generation Co. v. EPA, 714 F.3d 841 (5th
• Cir. Mar. 25, 2013.)

– Suit brought by electricity generator challenging EPA’s partial disapproval of a Texas rule that allowed an “affirmative defense” against civil liability for excess air emissions caused by SSM events – Holding

• Fifth Circuit defers to USEPA interpretations/ policies

regarding SSM treatment in EPA-approved SIP:

– For unplanned SSM events: EPA may allow affirmative defense in SIP. – For planned SS events: EPA may disallow affirmative defense in SIP

59

SSM Case Law Developments

• Natural Resources Defense Council v. EPA (D.C. Cir.,

Oral Argument Oct. 24, 2013)

– Suit challenges EPA’s inclusion of affirmative defense in maximum achievable control technology air toxics rule for Portland cement plants

• Alleges EPA exceeded statutory authority

– Oral Argument Panel: Raised doubts over legality of affirmative defense

• “I don’t see how EPA can create this affirmative defense.” –

Judge Harry

• Air law gives jurisdiction over civil penalties for air rule

violations to the courts and “this authority wasn’t given to EPA” – Judge Sri Srinivasan

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Implications of Rule, If Finalized

• Inconsistencies with other existing rules:

– NSPS: “emissions in excess of the applicable level of the applicable emissions limit during periods of startup, shutdown and malfunction [ shall not] be considered a violation of the applicable emission limit unless

• therwise specified in the applicable standard.” 40

C.F.R. §60.8(c).

• Additional litigation likely

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Implications of Rule, If Finalized

• Increased Enforcement Actions:

– Against sources that have relied on previously available affirmative defenses (SIP-based or permit-based) – Increased enforcement could require installation of (additional) pollution controls

• Revision of State/ Local Regulations or Permits:

– SIPs, state regulations, and permit conditions intertwined

• Source-specific emission limits are based on state rules,

including the state’s SSM rules; any revisions to the SIPs may trigger need to also change state/ local permits or regulations

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What Can You Do?

• Even before rule is finalized, know your potential risk.

– Permit and emission limit review:

• Are there situations where your facility exceeds limits

during routine startups or shutdowns?

• Identify changes to the permit terms or underlying

regulations that would be needed to maintain compliance (e.g., longer averaging times or different emission limits during startups).

• If/ when rule is finalized:

– Work with state on SIP revisions. – Be persistent with state about fixing/ revising permit terms to reduce exposure.

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In Case You Were Wondering

April 3, 2014

You can’t always get what you want…

• Bernstein v. Bankert (7th Cir. 2013)

– if you think you have CERCLA contribution rights, think again

• Luminant Gen Co. v. EPA (5th Cir.

2013) – Chevron deference alive and well; US EPA trumps state agency

• Mingo Logan v. EPA (D.C. Cir. 2013)

– that COE permit and a nickel will get you …

65

Bernstein v. Bankert

• Key take-aways

– Plaintiff cannot pursue cost recovery claim when contribution claim is available – Statutes of limitations run separately for separate AOCs/ Decrees

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Bernstein v. Bankert

• Key take-aways

– Novel interpretation of “resolution of liability” may discourage settlement – Plaintiffs have cost recovery claim if contribution claim has not yet matured – Suggestion that “liability” must be determined

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Bernstein v. Bankert

• The puzzles …

– Contribution protection – Effect on cost recovery claim when contribution claim matures – Can you draft around Bankert? Will EPA cooperate?

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Luminant Gen. Co v. USEPA

• Reaffirms Chevron deference to EPA

– Reasoned basis for determination – Not arbitrary or capricious – Consistent interpretation over time

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Mingo Logan v. USEPA

• Upon further review…

– Holding: USEPA has post-permit withdrawal authority to withdraw the specification of streams for the disposal of mountaintop mining wastes years after the Corps of Engineers has issued a permit based on the initial specification – Rationale: Based on Chevron analysis

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Federal Environmental Update: Th Th T M th The Three Top Myths

Robert A. Kaplan Regional Counsel g U.S. EPA Region 5 April 3, 2014

1

Top Myths Top Myths

Federal environmental regulation/enforcement g is:

• Less Effective because of budget cuts/streamlining
• Barred by recent court decisions
• Carried out by “sue and settle” lawsuits.

2

M h 1 L ff i f Myth 1: Less effective enforcement

3

4

• National Enforcement Initiatives:

– Every Three Years – Focus on problems where noncompliance is a

• cus o

p ob e s e e

• co

p a ce s a significant factor – Open and Transparent

• Public comment Jan. 28 Fed. Reg.

– Current set of 2011-13 NEIs will continue for 2014-2016 2014 2016

National Enforcement Initiatives for National Enforcement Initiatives for Fiscal Years 2014 - 2016

1. Keeping raw sewage and contaminated storm water out p g g

• f our nation’s waters

2. Preventing animal waste from contaminating surface and ground waters 3. Cutting toxic air pollution that affects communities’ health 4. Reducing widespread air pollution from the largest sources (e.g., coal-fired utility, cement, glass, and acid sectors) sectors) 5. Reducing pollution from mineral processing operations 6. Assuring energy extraction sector compliance with environmental laws environmental laws

Clean Air Initiative Results – NSR Outcomes – Coal Fired Utilities

• Injunctive Relief: >$16 6 billion
• Injunctive Relief: >$16.6 billion
• Tons Reduced: > 2.4 million annually
• Health Benefits: >$35 billion annually
• Health Benefits: >$35 billion annually
• Civil Penalties: >$80 million

S pplemental En ironmental Project $30 million

• Supplemental Environmental Project: ~$30 million
• Mitigation Projects: >$618 million

Progress

8

April 18, 2013 Chicago Locks & Navy Pier April 18, 2013 Chicago Locks & Navy Pier Photo: Lloyd

Photo: Lloyd Degrane Degrane/Alliance for the Great Lakes /Alliance for the Great Lakes

9

April 18, 2013 Lake Michigan April 18, 2013 Lake Michigan Photo: Lloyd

Photo: Lloyd Degrane Degrane/Alliance for the Great Lakes /Alliance for the Great Lakes

Progress

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Criminal Enforcement: Example Criminal Enforcement: Example

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Myth 2: Recent Caselaw Bars Enforcement

• NSR Statute of Limitation

cases cases

• DTE
• Sackett v. EPA

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Myth 3: “Sue and Settle” y

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Th R d Ah d The Road Ahead

U.S. Supreme Court Decision

GHG Endangerment Finding First GHG Standards for Passenger Clean Air Act Process for Stationary S Finding Passenger Vehicles Sources

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LIGHT-DUTY VEHICLE FUEL ECONOMY STANDARDS, 1978-2025

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Spills

E b id K l S ill L t il Enbridge Kalamazoo Spill: Largest oil spill into inland waters July 26, 2010

Contact Information: Contact Information: Robert Kaplan Robert Kaplan Regional Counsel kaplan robert@epa gov kaplan.robert@epa.gov 312-886-1499