On August 23, 2013, environmental groups represented by Earthjustice alerted USEPA in a 60 day notice letter that the groups intend to sue the Agency for its alleged failure to comply with Clean Air Act (CAA) §112(d) and §112(f) by failing to revise maximum achievable control technology (MACT) standards for 46 source categories within eight years of rule promulgation as required by CAA §112(d)(6).  The environmental groups also alleged that USEPA failed to conduct risk assessments and determine if additional standards are needed to reduce residual risks for the same 46 sources as required by CAA §112(f)(2).

Industrial sources that may be impacted include:  (1) Chemical Combustion Sources at Kraft, Soda, Sulfite, and Stand-Alone Semichemical Pulp Mills; (2) Cyanide Chemicals Manufacturing; (3) Paper and Other Web Coating; (4) Coke Ovens – Pushing, Quenching and Battery Stacks; (5) Hydrochloric Acid Production; (6) Integrated Iron & Steel Manufacturing; (7) Iron and Steel Foundries; (8) Taconite Iron Ore Processing; (9) Miscellaneous Organic Chemical Manufacturing; (10) Surface Coating of Plastic Parts and Products; and (11) Boat Manufacturing.  The complete list of potentially affected sources/standards can be found in the group’s 60 day notice letter.

As we previously reported, such 60 day notice letters often result in “sue and settle” rulemaking through which the Agency agrees to new deadlines in court-ordered consent decrees.  These consent decrees often establish constrained rulemaking schedules that artificially limit the time for public comments and have been used by USEPA to discourage the gathering of new information and interested party input on the basis that they cannot be achieved by the settled deadline in the court-enforced order.  Although Congress and state officials have been pressuring USEPA to avoid this practice, companies subject to USEPA regulation continue to find that there is insufficient time and information available to develop rational and thoughtful rulemaking.

For example, the first industry source listed in the August 23 notice letter – Publicly Owned Treatment Works (POTWs) – is already the subject of litigation.  Sierra Club filed a complaint in the US District Court for the District of Columbia on October 24, 2013, asking the court to require USEPA to “review and either revise the emission standards or issue a final determination that such revision is not necessary for POTWs pursuant to [§112(d)(6)] in accordance with expeditious deadlines specified by this Court.”  Sierra Club is seeking identical Agency action under §112(f) as well. It may only be a coincidence that the first case to be filed correlates with the first industry listed in the environmental groups’ notice letter, but then again, the list of 46 sources could also be a list of the environmental groups’ litigation plan for the foreseeable future.  Seeking intervenor status to the extent allowed by courts and commenting on proposed settlements are ways to seize opportunities to protect business and regulatory interests in these “sue and settle” situations.