WOTUS<\/b><\/h3>\n
(State of Georgia, et al. v. Andrew R. Wheeler et al.<\/i>\u00a0<\/span>No. 2:15-ev-00075)<\/p>\n On August 21, 2019, the District Court for the Southern District of Georgia, Brunswick Division, held that the Waters of the United States (WOTUS) Rule promulgated by the EPA and the U.S. Army Corps of Engineers in 2015 \u201cextends the Agencies\u2019 delegated authority beyond the limits of the CWA [Clean Water Act].\u201d The court determined that the rule was not a permissible construction of the phrase \u201cwaters of the United States\u201d within the statute and that the agencies\u2019 promulgation of the WOTUS Rule violates the procedural requirements of the Administrative Procedures Act.<\/p>\n The order granted the plaintiffs\u2019 (originally a group of states) motions for summary judgment, denied the intervenor defendants\u2019 (since the agencies declined to defend the rule, two environmental groups defended the substantive challenges) motion, denied the intervenor plaintiffs\u2019 motion (at this time), remanded the WOTUS Rule back to the agencies for further proceedings consistent with this order (in lieu of vacatur, since efforts to repeal and replace are already underway), and left in place the court\u2019s 2018 preliminary injunction enjoining enforcement of the rule in the states that were parties to the case pending the outcome of the ongoing administrative proceedings regarding the rule.<\/p>\n (Murray Energy Corporation, v. EPA<\/i>, No. 15-1385)<\/p>\n On August 23, 2019, the D.C. Circuit upheld the EPA\u2019s 2015 ozone standards, which lowered the primary National Ambient Air Quality Standards (NAAQS) ozone standard to 70 parts per billion, remanded the agency\u2019s secondary standard for reconsideration, and vacated the grandfathering provision for pre-construction applications completed (but for which the permit had not been issued) prior to the adoption of the 2015 rule. The court determined that the EPA had adequately explained its decision to retain the form of the primary standard by considering and examining exposure assessments and taking the Clean Air Scientific Advisory Committee\u2019s (CASAC) recommendations into account.<\/p>\n The court, however, found that the EPA had reviewed available new data in revising the secondary standard downward; had departed from CASAC\u2019s recommendations in setting the secondary standard and retaining the form and averaging time it had previously used without adequately explaining its decision to use a three-year average of the W126 index as the benchmark; and had arbitrarily failed to identify a level of air quality requisite to protect against adverse effects from visible leaf injury; but did not act unlawfully or arbitrarily and capriciously in setting the NAAQS without regard for background ozone. Finally, in examining the challenge to the grandfathering provision, the court determined that the EPA could not ignore statutory language \u201cthat emissions from construction or operation of such facility will not cause, or contribute to, air pollution in excess of any . . . national ambient air quality standard,\u201d finding that Congress has spoken and \u201cEPA cannot displace the statutory determinations simply because the agency\u2019s preferred approach [might] be better policy.\u201d<\/p>\n<\/section>\n<\/div>\n<\/div>\n [\/et_pb_cta][\/et_pb_column][\/et_pb_row][\/et_pb_section]<\/p>\n","protected":false},"excerpt":{"rendered":" In the last few days, both the regulated community and environmental groups each chalked up one win and one loss. By Karen Aldridge Crawford Share: \u00a0\u00a0\u00a0 In the last few days, both the regulated community and environmental groups each chalked up one win and one loss. The U.S. Environmental Protection Agency (EPA) as a result […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"on","_et_pb_old_content":"\n <\/p>\n\n\n\n Posted on March 21, 2013 by Karen Crawford<\/p>\n\n\n\n The EPA issued its long-awaited CISWI Rule in the Federal Register on February 7, 2013. 78 FR 9112. The final rule, entitled \u201cCommercial and Industrial Solid Waste Incineration Units;Ozone Standard<\/b><\/h3>\n
Reconsideration and Final Amendments; Non-Hazardous Secondary Materials That Are Solid
Waste,\u201d contains the provisions in EPA\u2019s 2011 rule, vacated in January 2012, that EPA agreed to
reconsider. The 2011 final rule in turn superseded EPA\u2019s 2000 CISWI rule. The new CISWI Rule
amends 40 CFR part 60 subparts CCCC and DDDD and part 241. The amendments to 40 CFR part 60 subpart DDDD, along with certain incorporations by reference, were effective on the
promulgation date; amendments to part 60 subpart CCCC are effective August 7, 2013, and those to 40 CFR part 241 are effective April 8, 2013.
In response to both the court\u2019s vacatur of a Notice of Delay issued in 2011 and the numerous petitions for reconsideration and comments submitted by the regulated community and the
public, the final rule includes three subcategories of ERUs (energy recovery units) and two
subcategories for waste-burning kilns based on design-type differences, with separate carbon
monoxide (CO) limits for the latter. Certain limits were also revised based on comments
regarding the CO span methodology and on incorporation of additional data. The rule establishes
stack testing and continuous monitoring requirements and allows for the use of continuous
emissions monitoring systems (CEMS), setting levels based on a 3 hour block or 30-day rolling
average (depending on the parameter and subcategory of CISWI).
The rule addresses and preserves a source\u2019s choice to cease or start combusting solid waste at
any time due to market conditions or other reasons, and to switch from one set of applicable
emission standards to another pursuant to CAA section 112, thereby amending the original \"once
in always in\" approach reflected in the earlier versions of this rule. This in turn will provide an
incentive to the regulated community to continue operating incinerators.
The deadline for compliance with the CISWI Rule by existing sources depends primarily on when the state implementation plan incorporating the final rule is approved, with such approval
required no later than five years after the February 7, 2013 Federal Register publication date. The effective date for new source compliance is August 7, 2013 or the date of startup, whichever date is later. New sources are defined as sources that began construction on or after June 4, 2010, or commenced reconstruction or modification after August 7, 2013.<\/p>\n","_et_gb_content_width":"793","footnotes":""},"categories":[1],"tags":[],"class_list":["post-52712","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"yoast_head":"\n