Lawsuits Filed Against the EPA Over Boiler Rules

April 9, 2013


Two lawsuits have been filed in the U.S. Court of Appeals for the District of Columbia Circuit over the U.S. Environmental Protection Agency’s (“EPA”) regulations governing toxic emissions from area source boilers. These lawsuits (now consolidated) are, in addition to others filed in the D.C. Circuit, challenging the EPA’s major source rule for boilers. Details regarding the regulations being challenged can be found in an earlier O’Melveny & Myers LLP Client Alert found here.

Major source boilers are those that emit toxic air contaminants in quantities greater than 10 tons per year for a single air toxic, or 25 tons per year for a combination of air toxics. Area source boilers are those that emit less than these quantities. Generally, major source boilers are utilized at larger industrial facilities, while area source boilers can be found at smaller facilities, such as colleges, hospitals, and larger hotels.

The area source rule is being challenged both by a coalition of environmental groups, (including the Louisiana Environmental Action Network, the Sierra Club, the Clean Air Council, the Partnership for Policy Integrity, and the Environmental Integrity Project), and by several industry groups, (including the Council of Industrial Boiler Owners, the American Chemistry Council, the American Wood Council, the American Forest and Paper Association, the Southeastern Lumber Manufacturers Association, the Corn Refiners Association, the National Association of Manufacturers, the Rubber Manufacturers Association, and the U.S. Chamber of Commerce). At this stage in the litigation process, the petitions are not required to set forth the specific provisions of the EPA’s rule that are being challenged.

At least eleven petitions have been filed in the D.C. Circuit challenging the major source rule for boilers. Environmental groups generally believe that the standards are too weak, while industry groups have raised concerns regarding stringency and clarity of the rules.

In addition to the D.C. Circuit challenges, several environmental and industry groups have filed administrative petitions for reconsideration of the final rule. In their petition, the Council of Industrial Boiler Owners and the American Chemistry Council are asking the EPA to revise the definition of the “start up period.” The petition claims that the EPA failed to provide notice and an opportunity to comment on the definition for “start up periods”, and that the definition and requirements pertaining to it are inconsistent with basic boiler operations. As a result, the petition claims that some sources will be unable to comply with the new requirements. A petition from the Sierra Club, Clean Air Council, Partnership for Policy Integrity, Louisiana Environmental Action Network, and Environmental Integrity Project seeks greater stringency in various emission limits.

It is expected to take at least several months for the court to resolve these challenges.

We will continue to provide additional updates as this litigation progresses.

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Bob Nicksin, an O'Melveny counsel licensed to practice law in California, Kelly McTigue, an O'Melveny partner licensed to practice law in California, and Eric Rothenberg, an O'Melveny partner licensed to practice law in New York and Missouri, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted..

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