National Association of Clean Water Agencies v. U.S. - EPA & Other Cases

Aug 20: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-1131. The Appeals Court explains that in March 2011, U.S. EPA issued a final rule establishing emission standards for sewage sludge incinerators under § 129 of the Clean Air Act, 42 U.S.C. § 7429. See Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Sewage Sludge Incineration Units, 76 Fed. Reg. 15,372 (Mar. 21, 2011). Determining that sewage sludge incinerators were "solid waste incineration unit[s]" as defined in § 129(g)(1), EPA promulgated "maximum achievable control technology" (MACT) standards for two subcategories of sewage sludge incinerators [See WIMS 1/21/11].

 

    The Appeals states, "The Clean Air Act cabins EPA's discretion in setting MACT standards, requiring EPA to base the standards on the emissions achieved by the best-performing existing incinerators. See 42 U.S.C. § 7429(a)(2). But acting under pressure of a court order to establish the MACT standards by a set deadline, EPA took a targeted approach to collecting emissions data and used several different methods to estimate the emissions levels achieved by existing incinerators. See 76 Fed. Reg. at 15,386.

 

    The petitioners challenge several different aspects of the rulemaking. Petitioners National Association of Clean Water Agencies and Hatfield Township Municipal Authority (collectively, NACWA) challenge EPA's authority to regulate sewage sludge incinerators under §129, asserting that sewage sludge incinerators do not fall within the scope of § 129(g)(1)'s definition of 'solid waste incineration unit.'"

 

    Petitioners NACWA and Sierra Club seek review of the sewage sludge incinerator emission standards, challenging several aspects of EPA's methodology for estimating the emission levels achieved by the best performing units. In addition to these petitioners, MaxWest Environmental Systems, developer of a proprietary biosolids management process, intervenes to challenge EPA's treatment of its

technology in the sewage sludge incinerator rule.

 

    The Appeals rules, ". . .we deny NACWA's petition for review as to EPA's authority to regulate sewage sludge incinerators under §129. As to the petitioners' challenges to EPA's methodology in setting emission standards, we agree that in some respects EPA has not adequately established that its estimations are reasonable, and so remand parts of the sewage sludge incinerator rule to EPA for further proceedings without vacating the current standards. We otherwise deny the petitions for review, and will not consider intervenor MaxWest's arguments as they are not within the scope of issues raised by the petitioners."

 

    The Appeals Court notes in the opinion that in the final rule, EPA candidly noted that its MACT floor methodology -- including the emissions testing dataset from less than 12 percent of incinerators -- was motivated in part by the impending court-ordered deadline to establish emission standards. EPA explained that "given the court-ordered deadline for EPA to issue the final [sewage sludge incinerator] rule, it was not possible to undertake the time-consuming process of sending an [information collection request] to all the affected [sewage sludge incinerators] consistent with the requirements of the [Paperwork Reduction Act]."

 

    The Appeals Court explains, "while both NACWA's and Sierra Club's arguments on this point share a similar element -- EPA's alleged failure to account for sewage sludge variability makes its MACT floor methodology arbitrary and capricious -- Sierra Club focuses on EPA's assumption about control technology installed on the incinerator, while NACWA focuses on EPA's assumptions about the effect of sewage sludge characteristics on emission levels." The Appeals Court addresses the concerns separately.

 

    The Appeals Court concludes, ". . .we remand to EPA portions of its rule for further explanation without vacating the current MACT standards. Specifically, we direct EPA to clarify why its Clean Water Act Part 503 regulations control for other non-technology factors. We also direct EPA to clarify issues related to its upper prediction limit and variability analysis. In particular, EPA should explain why the upper prediction

limit represents the "average emissions limitation achieved by the best performing 12 percent of" incinerators; why the upper prediction limit reasonably estimates the worst foreseeable operating conditions; and why the upper prediction limit can account for more than intra-unit variability, as EPA claimed it could on petition for review. Finally, we direct EPA to elaborate on how it can use a statistical method to determine whether a limited dataset is representative of incinerators for which it has no data, and to explain why it chose the variables it did for that statistical analysis.

 

    In all other respects, we uphold EPA's rule against the petitioners' challenges. Because the issues MaxWest raised in its intervenor brief are outside the scope raised by the petitioners, we do not consider its arguments."

 

    Access the complete opinion (click here). [#Air, #Water, #CADC]

 

Quick Summaries Of  Additional Cases During The Break

• Anderson Brothers, Inc. v. St. Paul Fire and Marine Insurance Co. - Aug 30: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-35454. Appealed from the United States District Court for the District of Oregon. The panel affirmed the district court's judgment in favor of an insured, holding that the insurer breached its duty to defend when it refused to provide a defense after the insured received letters from the Environmental Protection Agency, notifying the insured of its potential liability under the Comprehensive Environmental Response, Compensation, and Liability Act for environmental contamination of the Portland Harbor Superfund Site. Access the complete opinion (click here). [#Remed, #CA9]
  
  

• Northwest Environmental Defense Center v. Brown - Aug 30: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35266. On Remand From The United States Supreme Court [See WIMS 3/21/13]. The Appeals Court said, "The Court left intact our holding that "when stormwater runoff is collected in a system of ditches, culverts, and channels and is then discharged into a stream or river, there is a 'discernable, confined and discrete conveyance' of pollutants, and there is therefore a discharge from a point source" within the meaning of the Clean Water Act's basic definition of a point source in 33 U.S.C. § 1362(14). Brown, 640 F.3d at 1070–71; see Decker, 133 S. Ct. at 1338. . . We vacate the decision of the district court and remand to that court for proceedings consistent with the Supreme Court's opinion."  Access the complete opinion (click here). [#Water, #CA9]
  

• In Re: Deepwater Horizon - Aug 29: In the U.S. Court of Appeals, Firth Circuit, Case No. 12-30230. Appealed from the United States District Court for the Eastern District of Louisiana. The original opinion in this case was filed on March 1, 2013.1 Because this case involves important and determinative questions of Texas law as to which there is no controlling Texas Supreme Court precedent, the panel, upon the petition for rehearing, unanimously withdraws the previous opinion and substitutes the [specified] certified questions to the Supreme Court of Texas." Access the complete opinion (click here). [#Energy/OilSpill] 

• Land O'Lakes, Inc.  v.  Employers Insurance Company - Aug 29: In the U.S. Court of Appeals, Eighth Circuit, Case No. 12-1752. Appealed from the U.S. District Court for the District of Minnesota - Minneapolis. The Appeals Court ruled that the district court did not err in concluding that a letter the U.S. EPA sent the insured in 2011 informing it that the EPA considered it a Potentially Responsible Party in connection with an environmental cleanup constituted a suit for purposes of determining whether the insured's breach of contract action against the insurer was barred by the applicable statute of limitations; the insured's costs to remediate the site fall within the "owned-property" exclusion in the policy at issue. Access the complete opinion (click here). [#Remed] 

• Chinatown Neighborhood Association v. State of California - Aug 27: In the U.S. Court of Appeals, Ninth Circuit, Case No. 13-15188, unpublished opinion. Appealed from the United States District Court for the Northern District of California. The Appeals Court upheld the district court's denial of a preliminary injunction against the enforcement of sections 2021 and 2021.5 of the California Fish and Game Code (the Shark Fin Law). Subject to certain exceptions, the Shark Fin Law makes it "unlawful for any person to possess, sell, offer for sale, trade, or distribute a shark fin" in California. Access the complete opinion (click here). [#Wildlife]

• More Summaries - Subscribers Note: There were additional U.S. Appeals Court cases during the break. WIMS will include more summaries in tomorrow's report.