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Litigation and petitions update

Litigation and petitions update. Presented by Vera Kornylak October 25, 2012. Recent D.C. Circuit Activity. American Petroleum Institute v. EPA Decided July 17, 2012 Upheld NO2 NAAQS promulgated in Feb 2010 Nat’l Environmental Development Association’s Clean Air Project v. EPA

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Litigation and petitions update

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  1. Litigation and petitions update Presented by Vera Kornylak October 25, 2012

  2. Recent D.C. Circuit Activity • American Petroleum Institute v. EPA • Decided July 17, 2012 • Upheld NO2 NAAQS promulgated in Feb 2010 • Nat’l Environmental Development Association’s Clean Air Project v. EPA • Decided July 20, 2012 • Upheld SO2 NAAQS promulgated in June 2010 • EME Homer City Generation v. EPA • Decided Aug. 21, 2012 • Oct. 5, 2012 EPA filed a petition for rehearing en banc – additional briefing ordered by Court • UARG v. EPA – GHG/PSD SIPs litigation - ongoing • Briefing ongoing (EPA filed a brief in mid-June) • Responses were filed

  3. Recent Circuit Court Opinions • US Magnesium v. EPA • Decided Aug. 6, 2012 – 10th Circuit Court of Appeals • Upheld EPA’s SIP-call on the Utah SIP for its “Unavoidable Breakdown Rule.” • Provision did not treat all exceedances as violations • Provision included director’s discretion potentially impacting enforcement authorities of parties other than State • Provision allowed for exemption to apply to federal technology-based standards (e.g., NSPS and NESHAPs) due to delegation status of Utah

  4. Recent Circuit Court Opinions • Luminant Generation Co. v. EPA • Revised Decision issued Oct. 12, 2012 – 5th Circuit Court of Appeals • Reviewed Jan. 2011 final rulemaking by EPA partially approving and partially disapproving a TX SIP revision establishing an affirmative defense for emissions associated with SSM events – EPA’s disapproval focused on excuses for “planned” SSM events. • Petitions for review filed by both environmental groups (regarding partial approval) and industry groups (regarding partial disapproval).

  5. SSM Petition for SIP Call Update • Petition dated June 2011 by Sierra Club seeking SIP-call for 39 states including all Region 4 states and some local areas (Jefferson Co., KY; Forsyth Co., NC; Knox Co., TN; and Memphis/Shelby Co., TN) • EPA was sued for failure to respond to SIP call (Sierra Club v. Jackson, N. Dist. Calif.) • Settlement agreement recently modified • Dec. 14, 2012 – date for EPA to propose action to grant/deny petition • Will include opportunity for public comment • June 28, 2013 – date for EPA to take final action granting/denying petition • If EPA grants petition, EPA will either issue final SIP-call or correction notice by June 28, 2013

  6. Other Region 4 Litigation Developments • Court order issued by N. D. of Calif. in WildEarth Guardians v. Jackson – case involving EPA’s failure to take action on certain infrastructure SIPs for the 2008 ozone NAAQS including: • NC – EPA failed to find that NC did not submit a SIP • TN and KY – EPA failed to take final action on submitted SIPs • Court granted motions for summary judgment while case was stayed and after it was informed that a settlement had been reached. • Court ordered EPA to take action on NC finding of failure to submit by Jan. 4, 2013 and final action on TN and KY SIPs by Jan. 4, 2013. • EPA/DOJ planning to seek amendment to order to make it consistent with actual facts and seek revised deadlines consistent with settlement agreement.

  7. Recent CAA Title V Petitions Issued in Region 4 • In Region 4 States • June 22, 2012 – two orders granting in part and denying in part petitions regarding two facilities in Kentucky (Cash Creek Generation and Kentucky Syngas LLC). • Orders responded to wide range of issues including PSD/BACT, public process, sourcewide/synthetic minor limits, monitoring, and ozone modeling, among others. • Aug. 31, 2012 – Order denying petition for TVA Shawnee facility

  8. Recent CAA Title V Petitions Issued for Non-Region 4 States • CF&I Steel (a/k/a Rocky Mountain Steel) (R8 state) • Order granting in part/denying in part dated May 31, 2012. • Georgia Pacific Consumer Products (R5 state) • Order denying petition issued July 23, 2012. • Cheyenne Light Fuel & Power (Wygen) (R8 state), • Order denying petition issued Aug. 23, 2012.

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