Opacity Still Matters: Court of Appeals Affirms EPA’s NSPS for Particulate Matter

Last week, in Utility Air Regulatory Group v. EPA, the D.C. Circuit Court of Appeals affirmed EPA’s 2012 New Source Performance Standards for particulate matter emissions from fossil-fuel-fired steam electric generating units.  The opinion is largely a plain vanilla administrative law decision, but does provide some useful guidance on the appeal of CAA regulations.  It is also a useful reminder of the extent of deference to EPA in an ordinary case.

First, the procedural issues.  Both petitioners, UARG and the State of Texas, filed petitions for reconsideration of EPA’s rule.  Indeed, perhaps the most important substantive question, whether EPA could require monitoring for condensable, as well as filterable, particulates, was first raised in UARG’s request for reconsideration.  The Court made clear that issues first raised in a request for reconsideration may not be raised in judicial review of the original rule – though they may of course be raised in a petition for review of EPA’s decision on the reconsideration request.

On the merits, the most significant issue may have been EPA’s decision to exempt facilities emitting less than 0.03 lb/MMBtu of PM from the opacity standard, but to continuing requiring all other facilities to meet the opacity standard.  To the Court, this was not a difficult issue.  EPA provided an explanation.  As the Court noted:

EPA explained that sources emitting 0.03 lb/MMBtu or less of particulate matter “will operate with little or no visible emissions,” and thus “an opacity standard is no longer necessary for these sources.” 2009 Rule, 74 Fed. Reg. at 5073. “At this emission rate,” the agency said, the existence of any “visible emissions may indicate that the [particulate matter] control device is not operating properly.” Id. at 5074. Hence, for a source that is meeting this emission standard, no opacity standard is needed because any visible opacity will indicate improper operation.

By contrast, units emitting more than 0.03 lb/MMBtu of particulate matter “may have some visible emissions” even if their particulate matter control devices are operating properly.

Because EPA’s explanation was not unreasonable, the challenge failed.

Finally, it is worth noting that the NSPS case was argued at the same time as the challenge to EPA’s air toxic rules for power plants.  That decision remains pending.  Stay tuned.

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