The highlight of last week in regulatory practice was the massive court of appeals decision on boiler pollution – an anthology of more than 30 claims from nearly 50 different cases – vacating a small amount, and remanding without vacatur a good deal more, but generally finding no fault with the regulations. On the other hand, a long-term regulatory effort was set in motion by a finding that aircraft contribute to air pollution that may endanger the public health and welfare. Of much more immediate concern, an agency adopted a rule for on-time passenger 
train performance where the courts had invalidated other agencies’ regulations – and likely set in motion the next court case.
Boiler Alphabet Review: The United States Court of Appeals for the District of Columbia Circuit vacated and / or remanded provisions of three Environmental Protection Agency (EPA) “boiler” rules last Friday in a collage of cases called United States Sugar Corp. v. EPA, and even the court’s summary requires substantial translation. The court resolved approximately 30 challenges to the EPA’s
(1) National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters, or Major Boilers,
(2) National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers, or Area Boilers, and
(3) Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incinerator Units, or CISWI or Waste Boilers. (Don’t be fooled by the EPA’s use of the word “guidelines” – these are regulations).
The bottom line is that boilers or incinerators cause hazardous air pollutants (HAPs) and EPA therefore regulates these pollutants under the Clean Air Act (CAA) through such devices. To grossly oversimplify, EPA first identified HAPs and source categories and subcategories for new and existing sources, and then EPA sets numeric limits at the most stringent level allowed by generally available control technologies (GACT) and for major sources at a level ascertainable by maximum achievable control technology (MACT), which has a whole set of subparts. All of that leads to what the D.C. Circuit found less than satisfactory under the CAA version of the Administrative Procedure Act (APA) standards of arbitrary and capricious, abuse of discretion, or otherwise not in accordance with law.
The panel specifically vacated the Boiler MACT rule for all major boiler subcategories that would have been affected had the EPA considered all sources included in the subcategories, rather than EPA’s exclusion of certain high-performing units from its MACT-floor calculation. In short, EPA’s exclusion of the highest performers as unusual left out the standard that was supposed to be the floor – leaving the floor too low. This type of definitional problem simply could not be explained away.
The panel remanded to the EPA, without vacatur, several specific tasks. (1) EPA must adequately explain how carbon monoxide acts as a reasonable surrogate (or proxy) for a specific set of organic HAPs in combustion (although the D.C. Circuit accepted EPA’s explanation of how carbon monoxide was a proper surrogate for other HAPs).
The final CISWI Rule did not contain emission standards for burn-off ovens, cyclonic burn barrels, foundry sand reclamation units, soil treatment units, and space heaters. EPA must (2) set emission standards in the CISWI rule for cyclonic burn barrels because EPA has a statutory, non-discretionary duty to do so, including developing data it lacked and even if measurement data did not exist and might be impossible to develop. EPA must also (3) determine whether burn-off ovens, soil treatment units, and space heaters are CISWI units and, if so, to set standards for those types of units. EPA must also (4) adequately explain the exclusion of synthetic boilers from CAA permitting requirements; and (5) adequately explain the choice of GACT standards over MACT standards for non-mercury metals.
► These complicated, data based rules present unique challenges to courts conducting judicial review beyond the standard learning curve that every lawyer and judge faces in understanding a new subject matter. The CAA may appear to be complicated, but it is far less so than the industries and processes for which EPA is attempting to set standards to reduce pollution. The D.C. Circuit here reiterates an important standard: while it reviews EPA’s factual determinations for substantial evidence, it owes particular deference to EPA when a rulemakings rests upon scientific and statistical judgments within EPA’s sphere of special competence and statutory jurisdiction, but remains hesitant to rubber-stamp EPA’s statistics without some explanation of the underlying principles or reasons why its formulas would produce an accurate result. In short, EPA must show how the data works.
One particular note about old fashioned burn barrels. EPA claimed to lack data for “cyclonic burn barrels” despite some generalized comments asserting that the CAA required regulation of them, and although the court never defines the term, it is what it sounds like – a burn barrel with a fan to increase efficiency. Oddly, if the EPA ever determines a numerical standard and then regulate it, the smart cyclonic burn barrel will return to being a dumb burn barrel, whether being used for non-hazardous (rag) or hazardous (oily) waste. Wherein lies common sense?
Endangering Aircraft: At the other end of the regulatory funnel, EPA released its expected Finding that Greenhouse Gas Emissions from Aircraft Cause or Contribute to Air Pollution that May Reasonably Be Anticipated to Endanger Public Health and Welfare last Monday. The bottom line is that the EPA finds, under the CAA, that certain classes of engines used in certain aircraft are contributing to the aggregate of greenhouse gases that endangers public health and welfare. At the end of its analysis, the EPA attempts to harmonize with recent International Civil Aviation Organization (ICAO) recommendations. The classification definition of covered aircraft (not pollutant-generating engines) may include jet aircraft with a maximum takeoff mass (MTOM) greater than 5,700 kilograms (just over 12,500 lbs, or close to consistent with FAA categories) and propeller-driven (e.g., turboprop) aircraft with a MTOM greater than 8,618 kilograms (19,000 lbs, consistent with FAA categories). The contribution finding sets in motion a new round of regulation that will be years in development and implementation.
► The Department of Transportation (DOT)’s Federal Aviation Administration (FAA) classifies aircraft by maximum take-off weight (MTOW), the domestic variant of MTOM. an aircraft MTOW is defined by the aircraft manufacturer and becomes part of the aircraft type certification based on structural or other limits; the FAA requires that an aircraft type meet all structural and performance requirements at MTOW. The EPA refers to an ICAO document for the analysis that bridges aircraft weight as a proxy for engine performance / pollution generation in a footnote. More clarity is needed than that. The process faces many other hurdles and limitations, and the EPA may be as limited in acting by international standards as it acquires leverage to act. Moreover, the emission standards are limited by safety standards.
Amtrak Priority, Again: On Thursday, DOT’s Surface Transportation Board (STB) took a number of actions in their role as railroad regulator. Of interest here is not the withdrawal of a propose policy statement that would have possibly permitted freight railroads to assert priority over passenger railroads that garnered general press attention, or any investigative report, but the final rule On-Time Performance under Section 213 of the Passenger Rail Investment and Improvement Act of 2008 (PRIIA). Shortly after the comment period closed on the STB’s proposed rule, the D.C. Circuit held, in Association of American Railroads v. Department of Transportation, that the joint rulemaking structure by Amtrak and DOT’s Federal Railroad Administration (FRA) in PRIIA violated the Due Process Clause of the United States Constitution because it authorized Amtrak, “an economically self-interested actor,” to “regulate its competitors” that is, the railroads that host Amtrak passenger trains outside the Northeast Corridor. Accordingly, the FRA and Amtrak metrics became invalid.
The STB is now finalizing a simplified standard for the very “on-time performance” requirement that was the disputed subject of the original and now invalid metrics: “An intercity passenger train’s arrival at, or departure from, a given station is on time if it occurs no later than 15 minutes after its scheduled time.” From this, STB might launch investigations if Amtrak fails to provide an 80% “on time” performance.
► The STB’s role and its authority to promulgate regulations under that role are subject to dispute and were disputed in the public comments. Expect litigation on that point anew.
Equally interesting is the self-defeating nature of this scheduling metric: Amtrak defines when it will arrive and notoriously schedules dead time at stations to ensure that its terminus arrival time is “on time.” (For those in the Washington, D.C. area, WMATA notoriously does the opposite – it holds local subway trains and passengers when a train actually gets ahead of schedule). No, trains can never satisfy by running on any artificial definition of “on time.”
The post Monday Morning Regulatory Review – 8/1/16: Boiler Alphabet Review; Endangering Aircraft & Amtrak Priority, Again appeared first on Federal Regulations Advisor.