Amicus Curiae Brief — American Chemistry Council v. Sierra Club

Supreme Court, U.S.

| 4 62, FILED

NOV 25 20039

No. 09-495 OFFICE OF THE CLERK

IN THE

Supreme Court of the Anite States

AMERICAN CHEMISTRY COUNCIL, AMERICAN FOREST

AND PAPER ASSOCIATION INC., AMERICAN PETROLEUM

INSTITUTE, NATIONAL PETROCHEMICAL & REFINERS

ASSOCIATION,

Petitioners,

a

SIERRA CLUB, e al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the District

of Columbia Circuit

BRIEF OF THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA AS

AMICUS CURIAE IN SUPPORT OF

PETITIONERS

OF COUNSEL: CHARLES H. KNAUSS

ROBIN S. CONRAD Counsel of Record

AMAR D. SARWAL MICHAEL B. WIGMORE

NATIONAL CHAMBER SANDRA P. FRANCO

LITIGATION CENTER, INC. BINGHAM MCCUTCHEN LLP

1615 H Street, N.W. 2020 K Street, NW

Washington, D.C. 20062 Washington, DC 20006

(202) 463-5337 (202) 373-6000

Counsel for Amicus Curiae Chamber of Commerce

of the United States of America

November 25, 2009

TABLE OF CONTENTS

| Page

TABLES OF AUTHOR 1 iGO svcsccscescsviescsvcsccssecocssescnve ili

TOT Rr CO Be viv cian vo vivcisssccsssccenssecescaesserassears 1

SUMMARY OF ARGUMENT. ................ccccccssscceeesseees 1

PTE esis didiskici eee 4

I. The D.C. Circuit’s Subjective Reopening

Test Disrupts the Orderly Administrative

Process and Eviscerates the Finality of

Regulations Relied on by Industry. ................. 4

A. Industries need the finality of

statutory time limits to protect the

substantial investment needed to

comply with regulations..........................-. 4

B. Under the subjective “reopening” test

adopted below, industry could rever

rely on the finality of administrative

actions, despite Congress’s express

limits on judicial review .................eceeeeceees 7

C. The’ decision below _ effectively

eliminates the Clean Air Act’s strict

time limits on judicial review and

reopens numerous, longstanding

POMURICOEY PUIG vs vicsis soso cesterscrcevisres 10

(1)

ii

TABLE OF CONTENTS - Continued

IT. By Reopening the Section 112 Standards

Without First Requiring Petitioners to

Seek Relief from EPA, the D.C. Circuit

has Required Industry to Comply with

Standards During SSM Periods Without

an Opportunity to be Heard on Whether

Compliance is Feasible. .................c.cesesesseeeees 20

ar raisrstiscccestonsevsesesseesovsscosesees 25

TABLE OF AUTHORITIES

Page

CASES

Blanco Oil Co. v. FERC, 598 F.2d 152.

ia nee IS cca tcc eee ene eee a ee 2

Eagle-Picher Industries, Inc. v. EPA,

Tee Be BO Sr, Gh, BG ance ccnsesesnscccassnseccssasecses 6

FMC Corp. v. Train, 539 F.2d 973

Ce Ar: Se orkedeehetnna asaiesenanventans ieee tee adee aeceaead Fay

ICC v. Jersey City, 322 U.S. 503 (1944) ...................... 5

JEM Broadcasting Co. v. FCC, 22 F.3d 320

CE Ge TD cass ckcccaseoaenscessaviseeanemmastaeiadeees 6

Kavanagh v. Noble, 332 U.S. 535 (1948)..................... 6

Kennecott Utah Copper v. DOI, 88 F.3d 1191

CS I aecbuncsvaceusuvevenessavacetectecas ratneaaiocinauneces 8

Marathon Oil Co. v. EPA, 564 F.2d 1253

CEE Cie. TOTTI) cin cecsseccexs See eee ea wee

Mountain States Telephone & Telegraph Co. v. FCC,

O39 F.2e LOSS C.C, Cie, TOBY) nics csesscssovsaseseccnccscsant 6

Natural Resources Defense Council v. EPA,

B71 F.3G T2865 COG. Car. BOS) nvccsesscsccscosscsasensces 8,9

(111)

1V

TABLE OF AUTHORITIES - Continued

Page

Natural Resources Defense Council v.

Nuclear Regulatory Commission,

Oe ee Oe i BOPED evstssceciasdenecccansatennsicccs 7

New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005)............ 7

Peabody Coal Co. v. Train, 518 F. 2d 940

IR an eae ates parecucisss te mareeehea sia coviadonees 10

Sierra Club v. Block, 576 F. Supp. 959

Cs OI sakncdcacecessavocsess Patt ae eas aaee sa peanan ewes 5

Sierra Club v. EPA, 551 F.3d 1019

eee ras eid Sareea cae Svnnestnniacsavanes 6, 8,9

Vermont Yankee Nuclear Power Corp. v.

Natural Resources Defense Council,

ee ee I dacinc coc sisceuiceiaes ob agerscnsi a tnvntice, 5

Western Nebraska Resources Council v. EPA,

TES FG TOR COR Cie, TOG) avers cceccccccncccsssccsscccocsseees 6

STATUTES

RULE Re BRM pss ti Bh tine titie itt tated is Mg ARENA Pek 5

bie ee 5

Vv

TABLE OF AUTHORITIES - Continued

Page

42 U.S.C. §7401(b) cocccsseccccsssesessessecessssucssssssecessuesessee 10

42 U.S.C. §74V2 cecceccccsscsesssssssesssssuessssssesssssssessssuesesesvees 1

42 U.S.C. §7412(d)(1) ceccsscccsscssescssessssseeesseseessveessesesveee 1d

42. U.S.C. §7412(d)(2) cescccccsssecessessecssessssecesssvesessuecesene 20

42 U.S.C. §7412(d)(3) coscecccsscecsccsssvecscssuescesssvecessuecessee 20

AD U.S.C. §7412(i)(3)(A) cecccocevcccccessessssssevssesesverevee 11

42. U.S.C. §7412(i)(3)(B) soecssssecescsssseseccesuesecerssesessseeen 11

42 U.S.C. §7502(a)(2) ceccececcsssssecsssssesecesssesssesssessesseveen 10

42 U.S.C. §7G607(b) .ececccccsceccccsssecccscescsccccssssssssscsersnecees 11

42 U.S.C. §7607(d) seeeesesseees- ee eee 5

AD U.S.C. §7607(4)(1) coscescccsssssessssscssssssecssssssecsessusesessee 5

ADMINISTRATIVE MATERIALS

40 C.F.R. §63.342(b)(1) ..cccccssseccccsssseccssseesssesseceseesseees 12

a NIE gocivuycpssyiaevastuacaccivvaysecnenavecioiases 12

vi

TABLE OF AUTHORITIES - Continued

Page

51 Fed. Reg. 27,956 (Aug. 4, 1986)..................:c0c-eeeee 21

58 Fed. Reg. 42,760 (Aug. 11, 1993)... eee 21

59 Fed. Reg. 12,408 (Mar. 16, 1994)...........0.. ee 11

59 Fed. Reg. 64,303 (Dec. 14, 1994) ................cceeseeees 17

60 Fed. Reg. 48,388 (Sept. 19, 1995) ............... eee 18

61 Fed. Reg. 27,132 (May 30, 1996) .....................0008. 17

62 Fed. Reg. 52,384 (Oct. 7, 1997).........sssssserccssserevess 18

63 Fed. Reg. 18,504 (Apr. 15, 1998) «0... eee 18

63 Fed. Reg. 53,980 (Oct. 7, 1998)...........0.:00:ccssese 18

OF POG. OR. TA Saw CIRC, 6, TOE) oc ccecciccccsccesesecsescnes 19

74 Fed. Reg. 51,368 (Oct. 6, 2009) ................0sccscereees 19

LEGISLATIVE HISTORY

S. Rep. No. 92-414 (1971), as reprinted in

ee er rate, PI vis chk s ckicecdedvannecenssvavavicicoacces ll

Vil

TABLE OF AUTHORITIES - Continued

Page

MISCELLANEOUS

Comments of the Council of Industrial Boiler

Owners on NESHAP from the Portland Cement

Manuf. Indus., Proposed Rule (Sept. 4, 2009)

(EPA-HQ-OAR-—2002-—0051-2846.1), available

GE WWW. TORUIREIODO.GOY on ccccscesvescscossvencesrsccesnsnnsdess 23

EPA Fact Sheet, Final Air Toxics Rule for

Gasoline Distribution Facilities (Nov. 23, 1994),

available at http://www.epa.gov/ttn/atw/gasdist/

SIE "coin cic ca sasaiouisiaiahcae: esos eacestasiaceetancueatent 17

EPA, How to Prepare a Startup, Shutdown,

Malfunction Plan for Collection and Control

Systems at Municipal Solid. Waste Landfills,

EPA-456/R-03-006 (Dec. 2003), available at

http://www.epa.gov/ttn/atw/landfill/lfssm12_03.

| RE RNR ao Pk AoA RES PD EERIE CNL Non a te OLA 23

EPA, National Emission Standards for Hazardous

Air Pollutants (NESHAP), available at

http://www.epa.gov/ttn/atw/mactfnlalph. html

(last updated Sept. 2, 2009) .................cceeeeeeeeeee es 13

Vill

TABLE OF AUTHORITIES - Continued

Page

EPA, Secondary Aluminum NESHAP 40 CFR

Part 63 Subpart RRR: Example Malfunction

Plan for Plant ABC (Apr. 3, 2003), available at

http://www.epa.gov/ttn/atw/alum2nd/malfunctio

TG, wvicenivisdancecsssssuesseciscicavarsaaivnintentarn

EPA, The Benefits and Costs of the Clean Air Act,

EPA 410-R-99-001 (1999), available at

http://www.epa.gov/oar/sect812/prospective1.ht

WOE yccsasedncsacsvsenapurcevnsealeatcdsruaaisene atone eae

Larry Altman, Wilmington refinery suffers

blackout, dailybreeze.com, Mar. 11, 2009,

http://www.dailybreeze.com/ci_11893024 ....... no

Letter to Counsel from Adam M. Kushner,

Director, Office of Civil Enforcement (July 22,

2009), available at _ http://www.epa.gov/

compliance/civil/caa/ssm-memo080409.pdf .........

Matt Scalian, Power outage causes flaring at

Norco plant, New Orleans Real-Time News,

Oct. 23, 2008, http://www.nola.com/news/

index.ssf/2008/10/power_outage_causes_flaring

ME MUU pick soceesubcckecticenn cusavatcateyoneaiiamaemeaaaemadaee

INTEREST OF AMICUS

The Chamber of Commerce of the United States

of America (the “Chamber”’) represents 300,000

direct members and indirectly represents an

underlying membership of three million businesses

of all sizes, sectors, and regions, as well as state and

local chambers and industry associations.4 Members

of the Chamber span numerous industries that

operate facilities throughout the United States.

Many of these facilities emit air pollutants regulated

under the Clean Air Act, including, but not limited

to, National Emission Standards for Hazardous Air

Pollutants (“NESHAPs”) promulgated by the U.S.

Environmental Protection Agency (“EPA”) pursuant

to Section 112, 42 U.S.C. §7412. More generally, the

Chamber’s members have a strong interest in the

finality of administrative rules and regulations, an

interest severely undermined by the decision below.

SUMMARY OF ARGUMENT

For a business to operate, it must have some

degree of certainty to identify its ongoing and

upcoming obligations. Changes to manufacturing

facilities, in particular, often require substantial

amounts of capital investment to purchase and

install required equipment. When new regulations

1 Pursuant to Supreme Court Rule 37.6, counsel for

amicus represent that the brief was not authored in whole or in

part by counsel for a party and that none of the parties or their

counsel, nor any other person or entity other than amicus, its

members, or its counsel, made a monetary contribution

intended to fund the preparation or submission of this brief. All

parties have consented to the filing of this brief, and letters

reflecting their consent have been filed with the Clerk.

2

are promulgated, long-term planning is needed to

ensure that sufficient resources, labor and time are

available for a facility to come into compliance. To

these ends, procedural certainty and finality of

agency actions are vital.

Procedural certainty comes from a regular and

orderly administrative process. Congress and courts

have provided numerous procedural protections to

promote and maintain the integrity of the

administrative process, such as_ requiring all

interested parties to make their concerns known to

the agency during the rulemaking process. “Finality

ordinarily assures regularity of administrative

process and avoids unfairness to parties who have

relied on a final decision.” Blanco Oil Co. v. FERC,

598 F.2d 152, 163 (D.C. Cir. 1979). Congress has

recognized the importance of imparting finality into

the administrative process, imposing strict time

limits on the jurisdiction of courts to review agency

actions.

In this case, the D.C. Circuit eschewed a sixty-

day limitation on seeking judicial review imposed by

Congress under the Clean Air Act, choosing instead

to rely on claims by the petitioners below

(hereinafter referred to as “Sierra Club”) that

circumstances had changed since the time of

promulgation which the D.C. Circuit found made the

regulation now “worth” challenging many years

later. In so doing, the D.C. Circuit vacated a

regulation that was promulgated in 1994, and relied

on by EPA and regulated entities since that time,

based on a test that provides no clear, objective

standard to determine whether a regulation can

truly be considered “final.” Rather, it looked to the

3

subjective belief and concerns of the challenging

party. As a direct result of allowing this challenge to

be brought outside the normal review process, the

D.C. Circuit vacated these long-standing provisions

without a record on which to review, and without

giving the parties an opportunity to fully address the

merits. The D.C. Circuit’s decision below, therefore,

has circumvented and undermined the regular order

of the administrative process and has rendered

virtually impossible the finality sought by Congress. —

Moreover, the D.C. Circuit's expansive

application of its so-called “constructive reopening”

doctrine is not limited to the Clean Air Act, but

applies broadly to virtually all areas of

administrative actions.

As this case shows, the sudden judicial

“reopening” of a regulation long after the statutory

period for challenges has passed can have enormous

ripple effects on myriad other agency rules and

orders that have been relied on as apparently final

regulations for years. If it stands, for example, the

D.C. Circuit’s decision calls into doubt at least 35

standards that expressly incorporated the now-

vacated provisions. Many of these standards have

been in place for over a decade, and industry has

spent millions to ensure compliance with these

standards. The long-settled expectations and

investments of industry are now upset, with no clear

path for industry to ensure compliance with

standards that now may be applicable.

In promulgating the general provisions for

startup, shutdown and malfunctions (“SSM”), EPA

necessarily recognized that technology standards

4

may not be met at all times, often for reasons out of

the operator's control. Industry, after making

substantial investment in reliance on EPA's long-

standing regulation, is now subject to potential

enforcement actions or citizen suits for emissions

during events that EPA has long-recognized may be

impossible to control.

To protect the integrity of the administrative

process and remove incentives for parties to sit on

their rights only to upset long-standing investments,

Supreme Court review of the D.C. Circuit's decision

below is warranted.

ARGUMENT

I. The D.C. Circuit’s Subjective Reopening

Test Disrupts the Orderly Administrative

Process and Eviscerates the Finality of

Regulations Relied on by Industry.

A. Industries need the finality of statutory

time limits to protect the substantial

investment needed to comply’ with

regulations.

Industry relies on an orderly administrative

process to make the often significant investments

required to comply with new regulations. Final

resolution of administrative actions is essential to

this orderly process.

Congress and courts have long sought to protect

an orderly administrative process, including

consummation of that process. Both the

Administrative Procedure Act and the Clean Air Act

9)

seek to ensure adequate public participation so that

interested parties may make their case before the

agency, presenting information the agency needs to

understand the costs, benefits, and any potential

problems with proposed regulations. 5 U.S.C. §553;

42 U.S.C. §7607(d). Courts are then limited to the

administrative record in reviewing agency action;

that is, the information made available to the agency

during its deliberative process. 5 U.S.C. §706; 42

U.S.C. §7607(d)(7). This ensures that the

administrative process is fair prior to imposing

restrictions on regulated entities, and _ that

regulatory agencies have all the _ relevant

information before them.

This process also ensures there is a

consummation to agency action; “If upon the coming

down of the order litigants might demand rehearings

as a matter of law because some new circumstance

has arisen, some new trend has been observed, or

some new fact discovered, there would be little hope

that the administrative process could ever be

consummated in an order that would not be subject

to reopening.” Vt. Yankee Nuclear Power Corp. v.

Natural Res. Def. Council, 435 U.S. 519, 555 (1978)

(quoting ICC uv. Jersey City, 322 U.S. 503, 514

(1944)).2 See alse Sierra Club v. Block, 576 F. Supp.

959, 965 (D. Or. 1983) (“The integrity of the

administrative process is threatened when agencies

2 This Court has warned against petitioners turning

administrative proceedings into “a game or a forum to engage

in unjustified obstructionism” by failing to provide meaningful

comment. Vt. Yankee Nuclear Power Corp., 435 U.S. at 553-54.

Here, Sierra Club did not comment on the legality of the

general SSM provision when proposed in 1993.

intentions and participants’ expectations as to the

finality of administrative decisions are not upheld in

the face of subsequent challenges.”). Indeed, the D.C.

Circuit rejected Sierra Club’s attempt to assert that

EPA “actually” reopened the issue in subsequent

rulemakings to restart the statutory time limit on

seeking review. Sierra Club v. EPA, 551 F.3d 1019,

1024-25 (D.C. Cir. 2008).

Statutory time limits on seeking judicial review

serve the important purpose of providing finality to

the administrative process. Statutes of limitation

established by the legislature are intended to “cut off

rights, justifiable or not,” in order to bring a final

resolution. Kavanagh v. Noble, 332 U.S. 535, 539

(1948). A jurisdictional time limit imposed by

Congress on seeking judicial review of agency action

‘is intended and in fact brings finality to the

administrative process and reflects ‘a deliberate

congressional choice to impose statutory finality on

agency [action], a choice [courts] may not second-

guess.” W. Neb. Res. Council v. EPA, 793 F.2d 194,

198 (8th Cir. 1986) (quoting Eagle-Picher Indus., Inc.

v. EPA, 759 F.2d 905, 911 (D.C. Cir. 1985)) (first

alteration in original). See also JEM Broad. Co. uv.

FCC, 22 F.3d 320, 325 (D.C. Cir. 1994) (quoting

Mountain States Tel. & Tel. Co. v. FCC, 939 F.2d

1035, 1040 (D.C. Cir. 1991)) (‘Congress has

‘determined that the agency’s interest generally lies

in prompt review of agency regulations,’ and ‘[wle

accord heavy weight to that view.””) (alteration in

original).

In addition to conserving administrative

resources, the finality brought about by statutory

time limits on review “protect[s] the reliance

7

interests of regulatees who conform their conduct to

the regulations.” Natural Res. Def. Council ov.

Nuclear Regulatory Comm'n, 666 F.2d 595, 602 (D.C.

Cir. 1981). By providing express statutory time

frames for implementation of new Clean Air Act

regulatory requirements, Congress recognized that

facilities need an appropriate time to come into

compliance. Plans must be developed, funding must

be established, capital investments must be made,

and equipment must be obtained and installed to

meet new requirements in the time period allowed.

EPA has recognized that “an appropriate time of

regulatory certainty” and “a sufficient period of time

for planning long-term capital improvements” is

required for industry to make investments and

address regulatory requirements. New York v. EPA,

413 F.3d 3, 37 (D.C. Cir. 2005) (upholding EPA’s use

of ten-year period for use of plantwide applicability

limits under Clean Air Act’s New Source Review

program). Similarly, public sector facilities subject to

new requirements must be able to raise public funds

to take the necessary actions, which can be time-

consuming. Judicial reopening of regulations

industry has long relied upon well beyond the

applicable limitations period, as the D.C. Circuit has

done in this case, throws this scheme into disarray.

B. Under the subjective “reopening” test

adopted below, industry could never rely

on the finality of administrative actions,

despite Congress’s express limits on

judicial review.

There is no dispute that the Sierra Club could

have challenged the legality of the SSM provision at

the time it was adopted. Instead, it raised its

8

challenge years later and contended that changes to

the SSM plan requirements “significantly altere[d]

the stakes of judicial review” compared to when the

SSM provision was issued in 1994. Corrected Final

Opening Br. and Addendum of Environmental

Petitioners, at 31, Sierra Club v. EPA, No. 02-1135

(D.C. Cir. filed Mar. 19, 2008) (quoting Kennecott

Utah Copper v. DOI, 88 F.3d 1191, 1226-27 (D.C.

Cir. 1996)). Neither the text of the regulation, nor

EPA’s interpretation of it, has changed in the many

intervening years since its adoption. Yet, the D.C.

Circuit found that “from the _ perspective of

environmental petitioners’ interests and allocation of

resources the general duty ‘may not have been worth

challenging in [1994], but the [revised] regulations

gave [that duty] a new significance” and allowed the

untimely claim to move forward because it found

that new circumstances “changed the calculus for

petitioners in seeking judicial review.” Sierra Club,

551 F.3d at 1026 (quoting Kennecott, 88 F.3d at

1227). The D.C. Circuit has created a subjective test

with no clearly defined parameters for the agency,

the public, or industry to determine when an agency

action is “final].”

Shortly after its decision below, the D.C. Circuit

again had occasion to utilize this subjective test for

constructive reopening, reaching the opposite

conclusion on similar facts. Natural Res. Def.

Council v. EPA, 571 F.3d 1245 (D.C. Cir. 2009). In

that case, the D.C. Circuit, in another 2-1 opinion,

declined to find constructive reopening to allow

untimely challenges to two provisions, finding, for

one, the “stakes” for review were not “quantitatively

different” from when the provision was issued in

1989, and, for the other, the provision “if unlawful,

9

seems worth challenging in its own right” when

issued in 1980. Jd. at 1266, 1270-71. There is no

appreciable difference in the factual circumstances of

these two cases, and the D.C. Circuit made no

findings distinguishing the two cases. But in one

case the court found the issue may not have been

“worth” challenging during the statutory limitations

period, and thus allowed review later, while in the

other case the court found the issue “seem[ed] worth

challenging” during the limitations period, and

disallowed later review. These inconsistent findings

highlight the difficulty in applying the ad hoc,

subjective test for jurisdiction fashioned by the D.C.

Circuit. If the decision below is allowed to stand,

industry will never be able to predict what future

regulatory changes or rulings might be deemed to

affect sufficiently the “stakes” for judicial review in

the judgment of potential adverse parties and the

court. ,

The decision below further illustrates the

unfairness and havoc that results from adopting a

subjective test to determine the limits of a Court’s

jurisdiction. After finding it had jurisdiction, the

D.C. Circuit went on to invalidate the 14-year old

rule based on an issue that was not raised in the

subsequent actions by EPA, and thus had no record

for review, and that had not even been fully briefed

by the parties. Sierra Club, 551 F.3d at 1030 (QJ.

Randolph) (in dissent). As the Petitioners here point

out, and as EPA argued in its merits brief (Final Br.

of Resp’ts, at 27-30, Sterra Club v. EPA, No. 02-1135

(D.C. Cir. filed Mar. 14, 2008)), the proper procedure

should have been to require a petition for

rulemaking and establish a record for review. Pet. at

15-22. At least in those circumstances, the affected

10

parties and the public would have had an

opportunity to comment fully on the proposed

change, and the agency would have been required to

make the requisite findings before the SSM general

provision, which required facilities to minimize their

emissions during perieds of SSM, was replaced by

standards originally issued for steady-state

operation. Had the court below required these

procedures, a record would have been developed and

any briefing before the court would have been able to

address the false premise on which the D.C. Circuit

decided the case—i.e., that Section 112(d) does not

permit a standard for SSM periods that requires

sources to minimize emissions. Under the D.C.

Circuit’s decision, regulated entities will now be

forced to comply with standards during those periods

without any agency determination that those

standards are “achievable,” as Section 112(d)(2) of

the Act requires. See, infra, Part II.

C. The decision below effectively eliminates

the Clean Air Act’s strict time limits on

judicial review and reopens numerous,

longstanding regulatory rules.

The Clean Air Act is intended to address this

nation’s air pollution problems. 42 U.S.C. §7401(b).

In so doing, Congress included numerous, often

aggressive time frames for regulation and

compliance. See, eg., id. §7502(a)(2) (requiring

attainment with NAAQS within 5 years of

designation as nonattainment). This “sense of

urgency concerning environmental protection”

manifests itself in strict time limits Congress

imposed on seeking judicial review of agency actions

under the Act. Peabody Coal Co. v. Train, 518 F.2d

ll

940, 943 (6th Cir. 1975). See also S. Rep. No. 92-414,

at 83 (1971), as reprinted in 1972 U.S.C.C.A.N. 3668,

3756 (“In order to maintain the integrity of the time

sequences provided throughout the [Clean Water]

Act, the section would provide that any review

sought must be filed within 30 days of the date of the

challenged promulgation or other action.”). In the

Clean Air Act, Congress imposed a sixty-day limit on

judicial review of agency actions. 42 U.S.C. §7607(b).

Standards under Section 112(d) become effective

immediately for new sources, and existing sources

must comply with new standards within three years.

42 U.S.C. §7412(d)(1), G)(8)(A). EPA may provide an

extension of time up to one additional year “if such

additional period is necessary for the installation of

controls.” Id. §7412(i)(3)(B). With these strict time

frames, industry must rely on a_ regular

administrative process with an end in sight to

ensure sufficient time to design, fund, construct, and

install the controls necessary to meet these

requirements. Moreover, these standards require

substantial investment by regulated entities. EPA

estimated that annual costs in 2000 to meet the

requirements of Section 112, as amended in 1990,

were $780 million (1990$) ($840 million by 2010).

EPA, The Benefits and Costs of the Clean Air Act,

EPA 410-R-99-001, at 25-26 (1999), available at

http://www.epa.gov/oar/sect812/prospectivel.html.

When issuing’ subsequent source-specific

standards, EPA made a determination whether the

general provisions promulgated in 1994 were

applicable to that source category. 59 Fed. Reg.

12,408, 12,408/3-12,409/1, 12,412/1 (Mar. 16, 1994).

Based on the 1994 regulations, the SSM provision

12

was considered a default requirement that was

applicable. If EPA believed that the standard for

steady-state operations could be applied during SSM

events, in whole or in part, for a particular source

category, EPA proposed specific SSM provisions for

that source category. See, eg, 40 C.F.R.

§§63.342(b)(1) (Subpart N - Chromium

Electroplating and Chromium Anodizing Tanks),

§3.5320(a) (Subpart TTTT - Leather Finishing

Operations).

EPA has determined that standards for 35 source

categories are “immediately affected” by the D.C.

Circuit’s decision. See Letter to Counsel from Adam

M. Kushner, Director, Office of Civil Enforcement, at

2, Table 1 (July 22, 2009) (“Kushner Letter”),

available at http:/)www.epa.gov/compliance/civil/caa/

ssm-memo080409.pdf.3 Ten of these standards were

promulgated at least ten years prior to the D.C.

Circuit’s decision, including gasoline distribution,

pulp and paper, halogenated solvent cleaners,

secondary lead smelting, marine loading operations,

aerospace manufacturing, shipbuilding and ship

repair, printing and publishing, primary aluminum,

and flexible polyurethane foam production. Twenty-

two of these standards are at least five years old,

3 EPA also identified an additional 74 standards, which

include specific SSM provisions “that exempts or excuses

compliance during SSM events” and is “in addition to, or in lieu

of, a cross-reference to 40 C.F.R. §§63.6((1) amd (h)(1).”

Kushner Letter at 2, Table 2. Even in these cases, the general

acceptance of the policy behind the SSM decision made these

provisions, for the most part, uncontroversial (and

unchallenged by Sierra Club). Yet, they are all now called into

question by the D.C. Circuit’s decision.

13

including, in addition to those noted above:

combustion sources at pulp mills, steel pickling,

Portland Cement, wool fiberglass, secondary

aluminum, primary lead, publicly owned treatment

works, ferroalloy production, municipal solid waste

landfills, paper and other web coating, metal

furniture, and boat manufacturing. These standards,

and their promulgation dates, are a below.4

iisourcems ; Sele @isswem mheds Bee :

E ‘Caton. PY es rR ite ere goed

Halogenated iT 12/2/94 | 59 Fed. ie.

Solvent 61801

Cleaners

Gasoline R 12/14/94} 59 Fed. Reg. -

Distribution 64303

(Stage 1)

Secondary X 6/23/95 | 6O Fed. Reg.

Lead Smelters 32587

Aerospace GG 9/1/95 | 60 Fed. Reg.

Manufacturing 45948

Marine Vessel Y 9/19/95 | 60 Fed. Reg.

Loading 48388

Operations _ a eee 2

Shipbuilding & II 12/15/95| 60 Fed. Reg.

Ship Repair 64330

(surface

coating) -

4 See generally EPA, National Emission Standards for

Hazardous Air Pollutants (NESHAP), available at

http://www.epa.gov/ttn/atw/mactfnlalph htm! (last updated

Sept. 2, 2009).

BEST AVAILABLE COPY

CC.

Sou *yers

| BaOIae |

61 Fed. Ree.

Printing and

Publishing 27132

(surface

coating) -

Primary LL 10/7/97 | 62 Fed. Reg.

Aluminum ee 52384

Pulp and S 4/15/98 | 63 Fed. Reg.

Paper (non- 18504

combustion) _ see

Flexible ITI 10/7/98 | 63 Fed. Reg.

Polyurethane 53980

Foam

Production

Ferroalloys XXX 5/20/99 | 64 Fed. Reg.

Production _ 27450

Primary Lead TTT 6/4/99 | 64 Fed. Reg.

Smelting 7 : 30194

Portland LLL 6/14/99 | 64 Fed. Reg.

Cement 31898

Manufacturing

Wool NNN 6/14/99 | 64 Fed. Reg.

Fiberglass 31695

Manufacturing

Steel Pickling CCC 6/22/99 | 64 Fed. Reg.

33202

Publicly VVV 10/26/99 | 64 Fed. Reg.

Owned 57572

Treatment |

Works i= |

Secondary RRR 3/23/00 | 65 Fed. Reg.

Aluminum |__ 15689.

Peery see es vealE ort Wg,

Orys | 4. Le SP Syatetel ce fae

Pulp oa 1/12/01 | 66 Fed. Toe.

Paper 3180

(combustion)

Boat VVVV 8/22/01 | 66 Fed. Reg.

Manufacturing 44217

Paper and JJIS 12/4/02 | 67 Fed. Reg.

Other Web 72329

(surface

coating)

Municipal AAAA 1/16/03 | 68 Fed. Reg.

Solid Waste 2227

Landfills _ a

Metal RRRR 5/23/03 | 68 Fed. Reg.

Furniture 28605

(surface

coating)

Primary EEEEEE | 1/23/07 | 72 Fed. Reg.

Copper 2930

Smelting (area

sources) a a ; —

Secondary FFFFFF | 1/23/07 | 72 Fed. Reg.

Copper 2930

Smelting (area

sources)

Primary GGGGGG | 1/23/07 | 72 Fed. Reg.

Nonferrous 2930

Metals (area

sources) 2 ee .

Acrylic/ LLLLLL | 7/16/07 | 72 Fed. Reg.

Modacrylic 38864

Fiber (area

sources) a —

RIS Cun rCcew

‘33 subpatt u me

16

MLSS ocak:

ede eg yy:

LE Gatvtony Gia DES Ire hom

Chromium NNNNNN 7/16/07 | 72 Fed. Reg.

Compounds 38864

(area sources)

Flexible OOOOOO | 7/16/07 | 72 Fed. Reg.

Polyurethane 38864

Foam

Production and

Fabrication

(area sources)

Lead Acid PPPPPP | 7/16/07 | 72 Fed. Reg.

Battery 38864

Mfg.(area

sources)

Clay Ceramics | RRRRRR | 12/26/07) 72 Fed. Reg.

Manufacturing 73180

(area sources) |

Secondary TTTTTT | 12/26/07| 72 Fed. Reg.

Nonferrous 73180

Metals (area

sources) :

Electric Arc YYYYY | 12/28/07) 72 Fed. Reg.

Furnace 74088

Steelmaking

Facilities (area

sources) | ees eet

Iron and Steel ZZZZZ 1/2/08 | 73 Fed. Reg.

Foundries 225

(area sources) - 7a

Paint HHHHHH 1/9/08 | 73 Fed. Ser

Stripping and 1737

Miscellaneous

Surface

Coating

Operations

(area sources) - =

Ferroalloys YYYYYY | 12/23/08) 73 Fed. Reg.

Production 78637

(area sources)

Industry has expended substantial sums of

money over the years to comply with these Section

112 requirements, which have now been upset by the

D.C. Circuit’s decision. Some stark examples follow.

° Gasoline Distribution (Subpart R) (59 Fed.

Reg. 64,303 (Dec. 14, 1994)): EPA estimated

the required capital investment was on the

order of $117 million, and estimated annual

costs of $16 million. See EPA Fact Sheet,

Final Air Toxics Rule for Gasoline

Distribution Facilities, at 4 (Nov. 23, 1994),

available at http://www.epa.gov/ttn/atw/

gasdist/gdifact.pdf.

. Printing and Publishing (Subpart KK) (61

Fed. Reg. 27,132 (May 30, _1996)):

Implementation of the regulation was

estimated to cost $40 million annually

(including capital recovery over a ten-year

period). 61 Fed. Reg. at 27,135.

18

. Pulp, Paper, and Paperboard (Subpart S) (63

Fed. Reg. 18,504 (Apr. 15, 1998)): EPA

estimated that industry would expend $496

million in capital costs for this standard, and

$125 million in annual costs. 63 Fed. Reg. at

18,582.

* Marine ‘lank Vessel Loading Operations

(Subpart Y) (60 Fed. Reg. 48,388 (Sept. 19,

1995))5: EPA estimated capital costs expected

to result from the regulations’ of

approximately $266 million to $440 million,

and annual costs of $60 million to $100

million. 60 Fed. Reg. at 48,390.

. Primary Aluminum (Subpart LL) (62 Fed.

Reg. 52,384 (Oct. 7, 1997)): EPA estimated the

total capital costs of $160 million, with a total

annualized cost of $40 million. 62 Fed. Reg. at

52,391. Industry asserted these costs were

substantially higher. Jd. at 52,396.

. Flexible Polyurethane Foam Production

(Subpart III) (63 Fed. Reg. 53,980 (Oct. 7,

1998)): EPA estimated the total capital costs

of $74 million, with a total annualized cost of

$8.1 million. 63 Fed. Reg. at 53,988.

5 EPA provided a staggered compliance schedule for

certain control requirements under this standard, but the final

rule included an automatic extension for these sources based on

comments that more time would be needed due to a limited

number of experienced contractors available and potential

permitting delays. 60 Fed. Reg. at 48,392-48,393.

19

Paper and Other Web Coating (Subpart JJJJ)

(67 Fed. Reg. 72,329 (Dec. 4, 2002)): EPA

estimated the total capital costs of $222

million. 67 Fed. Reg. at 72,338. Estimated

total annualized costs were $69 million. Jd.

With the D.C. Circuit’s overturning of these

standards, which have been in place for years and .

with which industry has long complied, industry

must now scramble to ensure their facilities are not

in violation of the newly applicable standards

developed for steady-state operations. This may

require additional controls, new work practices, and

a myriad of actions, which require time to plan and

raise capital. All the while, facilities may face

enforcement risk because, as noted above, when the

SSM general provisions were incorporated into

subsequent standards SSM was not at issue during

development of virtually all of those rules.

Also, EPA is now applying the D.C. Circuit’s

ruling in this case to other industries outside Section

112, without notice and comment. For example,

despite the fact that EPA failed to provide any notice

of its action in the proposed rule, EPA has

determined that the D.C. Circuit’s ruling applies to

waste incinerators regulated under Section 129 of

the Clean Air Act. 74 Fed. Reg. 51,368, 51,375 (Oct.

6, 2009). Without seeking any data or comment, EPA

simply removed an exemption for SSM that had been

in place since 1997 for hospital, medical and

infectious waste incinerators.

20

il. By Reopening the Section 112 Standards

Without First Requiring Petitioners to

Seek Relief from EPA, the D.C. Circuit

has Required Industry to Comply with

Standards During SSM Periods Without

an Opportunity to be Heard on Whether

Compliance is Feasible.

Section 112(d)(2) provides that standards for

hazardous air pollutants must require the maximum

reduction of emissions that EPA, “taking into

consideration the cost of achieving such emission

reduction, and any non-air quality health and

environmental impacts and energy requirements,

determines is achievable. ...” 42 U.S.C. §7412(d)(2).

Section 112(d)(3) provides that the maximum

reduction that is “deemed achievable” for new

sources shall not be less stringent that the emission

control “achieved in practice by the best controlled

similar source.” Jd. For existing sources, the

emission control deemed achievable shall not be less

stringent than “the average emission limitation

achieved by the best performing 12 percent of the

existing sources.” Jd. at §7412(d)(3).

In the Section 112 emission standards containing

SSM exemptions, EPA did not make a finding that

compliance with otherwise applicable limits during

SSM events was “achievable,” nor that such

compliance had in fact been “achieved in practice” by

the best controlled similar source or best performing

12 percent of existing sources. That is so because the

SSM exemptions relieved industry from compliance

with regular emission standards during such SSM

events.

21

Indeed, the basic premise of the SSM exemptions

was that compliance was not “achievable” during

SSM events. In proposing the SSM provision in

1993, EPA recognized that special situations may

occur “such as _ unpredicted and_ reasonably

unavoidable failures of air pollution control systems,

when it ts technically tmpossible to properly operate

these systems.” 58 Fed. Reg. 42,760, 42,777/3 (Aug.

11, 1993) (emphasis added). For example, in the

hazardous pollutant standard for arsenic, EPA found

process upsets and equipment malfunctions can

result in increased emissions. 51 Fed. Reg. 27,956,

27,973 (Aug. 4, 1986) (“These monitoring data [from

the ASARCO-Tacoma smelter] have shown that

arsenic concentrations dramatically increased when

increased fugitive emissions were released during

upsets of the copper converters and when

malfunctions of control equipment resulted in an

increase in emissions.”). While EPA has found that

many malfunctions could be addressed by taking

reasonable measures, EPA also recognized that

malfunctions can result from actions out of the

facility's control, such as: unexpected failure of

monitoring system components (for example,

monitoring equipment, data acquisition equipment);

catastrophic events (for example, fire, lightening,

extreme weather/storms, flood, earthquake, meteors,

and other acts of God); loss of utilities (for example,

power, gas, water, as applicable to equipment); and

sudden and unavoidable failure of control or process

equipment, not due to poor. operation or

maintenance. See EPA, Secondary Aluminum

NESHAP 40 CFR Part 63 Subpart RRR: Example

Malfunction Plan for Plant ABC, at 7 (Apr. 3, 2003),

22

available at http://www.epa.gov/ttn/atw/alum2nd/

malfunctionplanver-6.pdf.& .

When the D.C. Circuit in this case reopened and

invalidated the SSM exemption, the achievability of

otherwise applicable emission standards during SSM

periods became relevant for the first time. And yet,

because petitioners had not first filed a petition with

EPA to request reopening, industry is now being

required to comply during SSM periods without ever

having had the opportunity to submit evidence to the

agency concerning achievability, and without EPA

ever having made the achievability finding the

statute requires. In short, the D.C. Circuit’s belated

reopening of these standards, without first requiring

an agency petition, has not only upset long-settled

expectations, but has also resulted in a process

denying the regulated industry the basic procedural

rights guaranteed by the Clean Air Act.

8 EPA’s recognition of the difficulty of achieving

standards during SSM periods has been supported by the

courts, which have long held that EPA must account for

malfunctions in developing technology-based standards, such

as those under the Clean Water Act. Marathon Oil Co. v. EPA,

564 F.2d 1253, 1257, 1272-73 (9th Cir. 1977) (finding “upset

provision” was necessary for Clean Water Act discharge limit

based on what is “achievable” because exceedances occur that

are “beyond the control of the permit holder” and because it is

“impossible and impracticable to set a standard that could be

met 100 percent of the time”); FMC Corp. v. Train, 539 F.2d

973, 986 (4th Cir. 1976) (“Plant owners should not be subject to

sanctions when they are operating a proper treatment facility.

Such excursions are provided for by the ambient air standards

established under the Clean Air Act, 40 C.F.R. ss 50.4-50.10,

and this Court sees no reason why appropriate excursion

provisions should not be incorporated in these water pollution

regulations.”).

23

And it is far from clear that such compliance is,

in fact, achievable. Startup and shutdown of units,

for example, may require different emission

standards, simply because the equipment operates

differently during those times. It may take time for

units to heat up and cool down before reaching the

optimum operational efficiency. It also may be

difficult to measure emissions during these periods,

because emissions are below the detection limit or

the control system takes time to become fully

operational. That is why EPA exempted such periods

from the emission limits applicable during periods of

steady-state operation, and instead applied a duty to

minimize emissions.

If the D.C. Circuit had required Sierra Club to

follow the regular order of the administrative

process and file a petition for rulemaking, it would

have had a record before it showing, for example,

that in many cases during periods of malfunction,

bypassing emission controls may be required to

avoid an explosion or serious harm to the public or

workers. “For some combustion units, malfunctions

are by their nature unsafe conditions which can lead

to excessive combustible mixtures in a furnace that

can result in explosions, equipment damage and

personnel hazards.” Comments of the Council of

Industrial Boiler Owners on NESHAP from the

Portland Cement Manuf. Indus., Proposed Rule, at

10 (Sept. 4, 2009) (EPA-HQ-OAR-2002-—0051-

2846.1), available at www.regulations.gov. EPA also

has recognized that power failures at municipal

landfills may require flaring for safe operation. EPA,

How to Prepare a Startup, Shutdown, Malfunction

Plan for Collection and Control Systems at

Municipal Solid Waste Landfills, EPA-456/R-03-006,

24

at A-3 to A-5 (ec. 2003), available at

ttp://www.epa.gov/ttn/atw/landfill/lfssm12_03.pdf.

Other cases have been reported of power failures

that have required facilities to use a flare system to

bring units to a safe operating state. See, e.g., Larry

Altman, Wilmington refinery suffers blackout,

dailybreeze.com, Mar. 11, 2009, http:/Awww.daily

breeze.com/ci_11893024; Matt Scalian, Power outage

causes flaring at Norco plant, New Orleans Metro

Real-Time News, Oct. 23, 2008, http://www.nola.com/

news/index.ssf/2008/10/power_outage_causes_flaring

_at.html. These power failures are more often

outside the control of the facility, and the operator

must make a fast decision how to address such

malfunctions to ensure the safety and well-being of

the workers and the public. The D.C. Circuit’s

decision places these operators in an untenable

position of potentially violating the Clean Air Act or

potentially causing serious injuries to workers and

the public.

The potential for such events was the impetus of

the SSM provision now vacated by the D.C. Circuit.

EPA made a legitimate policy decision with respect

to standards issued under Section 112, and the

Sierra Club should have been required to petition

EPA to reassess this policy, not circumvent the strict

time limits imposed by Congress for review. This

Court, therefore, should grant the petition for a writ

of certiorari to bring back order to the

administrative process, which has been undermined

by the D.C. Circuit’s decision.

25

CONCLUSION

The petition for a writ of certiorari should be

granted. |

Respectfully submitted,

Charles H. Knauss

(Counsel of Record)

Michael B. Wigmore

Sandra P. Franco

Bingham McCutchen LLP

2020 K Street, NW

Washington, DC 20006

(202) 373-6000

Counsel for Amicus Curiae

Chamber of Commerce

of the United States of

America

Of Counsel:

Robin S. Conrad

Amar D. Sarwal

National Chamber Litigation

Center, Inc.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

Dated: November 25, 2009