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Utility Air Regulatory Group v. Environmental Protection Agency

ELR Citation: 44 ELR 20048
Nos. 12-1166, (D.C. Cir., 03/11/2014)

The D.C. Circuit denied an electric utility association's petition for review challenging EPA's new source performance standards for steam generating units. The standards—issued via final rules in 2009 and again in 2012—exempt all units using particulate matter continuous emissions monitoring systems (CEMS) from all opacity standards and monitoring requirements, conditioned on their compliance with an emission standard for filterable particulate matter of 0.03 pounds per million British thermal units (lb/MMBtu) or less. But if such a boiler emits more than 0.03 lb/MMBtu of particulate matter, it remains subject to the opacity standard and must install a continuous opacity monitoring system (COMS) or perform periodic visual opacity inspections. The association argued that continuing to subject boilers emitting more than 0.03 lb/MMBtu of particulate matter to an opacity standard and opacity monitoring requirements, while exempting boilers emitting that amount or less, was arbitrary and capricious. But EPA articulated a reasonable explanation for requiring opacity monitoring under such circumstances. The association also argued that EPA violated the CAA's rulemaking provisions when it promulgated the 2009 rule. But even if this is true, it made up for any procedural error during the rulemaking for the 2012 rule. The association's remaining challenges were dismissed because they were first raised in petitions for reconsideration that remain pending before the Agency. Similarly, the court dismissed the state of Texas' petition for review challenges EPA's refusal to allow state-law affirmative defenses against the enforcement of new source performance standards. The state did not bring this alleged inconsistency to EPA's attention until its petition for reconsideration. As a consequence, it may not raise this objection for judicial review until that petition is resolved.