This would leave Justice Kennedy casting the deciding vote one way or another.As important as the Court's ultimate ruling is whether it narrowly tackles MATS or more sweepingly speaks to EPA's authority under the Clean Air Act. Case BackgroundMichigan v. EPA turns on EPA's interpretation of Section 112(n)(1)(A) of the Clean Air Act, 42 U.S.C. § 7412(n)(1)(A). Congress enacted the provision as part of the 1990 Clean Air Act Amendments to address HAPs from power plants.

The Reconsideration will take effect upon its publication in the Federal Register.Background As recounted by the D. C. Circuit in its August 2018 decision in the case of Air Alliance Houston, et al. v. EPA, in 1990, the Congress amended the Clean Air Act to force the regulation of hazardous air pollutants (see 42 USC Section 7412). An initial list of these hazardous air pollutants was also published, at Section 7412 (b).

If the D.C. Circuit ultimately vacates the rule, as may be likely given the breadth of the majority opinion, then electric utilities would no longer be regulated under section 112 for HAP. This result, in turn, could affect pending and future arguments for challenging the CPP. Indeed, a major challenge to the CPP has been based on whether EPA lacks legal authority to regulate power plants for carbon dioxide emissions if they are already regulated for HAP under section 112. BackgroundMichigan v. EPA turns on EPA's interpretation of section 112(n)(1)(A) of the CAA, 42 U.S.C. § 7412(n)(1)(A). Congress enacted the provision as part of the 1990 Clean Air Act Amendments to address HAP from power plants.

Recent EPA enforcement trends suggests the agency believes the Act’s General Duty Clause requires plants storing or processing unlisted chemicals to have an RMP if a catastrophic release of those chemicals could pose a significant risk to human health or the environment.Scope of RMPThe RMP program generally requires a facility to “prevent the accidental release and to minimize the consequences of release of any substance listed [as a regulated substance] or extremely hazardous substance.” §112(r)(1) CAA, 42 U.S.C.A 7412(r)(1). EPA promulgated an elaborate regulatory scheme to implement RMPs in 2004, 40 CFR Part 68, and published the list of “regulated substances” at 40 CFR 68.130.

Once effective, the CSB intends to issue periodic compliance guidance for the rule and recommends submitting comments to address unusual circumstances, including circumstances involving small operations or limited employees. Covered businesses should consider revising their incident report procedures so timely reports are completed should a reporting requirement be triggered.1 CSB News Release, Statement from CSB Interim Executive Dr. Kristen Kulinowski on the Chemical Incident Reporting Rule, CSB (Feb. 5, 2020), available at https://www.csb.gov/statement-from-csb-interim-executive-dr-kristen-kulinowski-on-the-chemical-incident-reporting-rule/.2 Prepublication Copy Notice, CSB (Feb. 3, 2020), available at https://www.csb.gov/assets/1/6/prepublicationcopy2-3-20.pdf [the “Final Reporting Rule”].3 42 U.S.C. § 7412(r)(6)(C)(iii).4Air All. Hous. v. U.S. Chemical & Safety Hazard Investigation Bd., 365 F. Supp. 3d 118, 132 (D.D.C. Feb. 4, 2019).5See 42 U.S.C. § 7412(r)(3).

at 2354, 2356.43 42 U.S.C. § 7412(b)(3)(B).44 Id. § 7412(b)(3)(A).45Id.46See, e.g., Am. Forest & Paper Ass’n v. EPA, 294 F.3d 113, 116-17 (D.C. Cir. 2002) (reviewing a decision to deny a delisting petition).47See 42 U.S.C. § 7412(a)(1) (tying major source status to 10 tons per year of a single HAP or 25 tons per year to any combination of HAPs); see also id.

Delivering a sharp blow to President Obama’s efforts to regulate coal plants, the U.S. Supreme Court invalidated the Environmental Protection Agency’s (EPA’s) 2012 Mercury and Air Toxics Standards (MATS) rule, finding that the agency improperly failed to consider compliance costs in determining that the regulation of coal- and oil-fired power plants was “appropriate and necessary” under the Section 112 of the Clean Air Act, 42 U.S.C. § 7412(n)(1)(A). In a 5-4 opinion by Justice Scalia, the Supreme Court held in Michigan v. EPA, No. 14-46 (June 29, 2015), that the EPA’s decision not to consider costs when determining that regulation of power plants under the hazardous-air-pollutants program was “appropriate and necessary” was an unreasonable interpretation of those statutory terms.

The environmental groups allege that toxic pollutants emitted by these operations present health risks and that such health risks are increasing as fracking operations move closer to urbanized communities. Due to the alleged risk to public health, the environmental groups: urgently request[] EPA to exercise its authority under the Clean Air Act to list oil and gas wells (and associated equipment) located in the appropriate geographical areas as area sources, and set limits on hazardous air pollutant emissions from oil and gas wells and associated equipment in accordance with 42 U.S.C. §§ 7412(c), (d), (k), and (n)(4)(B). The Petition also argues that EPA “has a responsibility under the Clean Air Act to protect people from the toxic air emissions [from oil and gas operations] nationwide, and under section 112(n)(4)B) it must do so.”

The revisions require owners and operators of subject facilities to achieve compliance with most of the substantive requirements within three years (i.e., by May 10, 2027). RMP plans must be updated to reflect new applicable requirements and resubmitted to EPA within four years (i.e., by May 10, 2028). For certain other requirements (regarding emergency response field exercises), the compliance deadline is potentially shorter or longer than these three- and four-year periods, depending on the date of the facility’s most recent field exercise.Once the rule takes effect, court challenges by both business interests and environmental groups are expected. However, given the unknown outcome of such challenges and the breadth and potential costs of the new requirements, potentially impacted facilities should begin assessing the applicability of the revisions now.BackgroundThe RMP regulations implement Section 112(r) of the 1990 Clean Air Act Amendments (42 U.S.C. 7412(r)), which direct EPA to develop regulations to improve the prevention of chemical accidents at stationary facilities or activities (for brevity, referred to here simply as “facilities”) that use or store “regulated substances” that EPA has identified as presenting the greatest risk of harm from accidental releases. In particular, the owner and operator of a facility with one or more “processes” that manufactures, uses, stores, or handles such a regulated substance in excess of substance-specific threshold quantities must develop and implement a risk management program for all such processes, and document that program in a risk management plan submitted to EPA.RMP requirements are generally similar to, and in some respects will overlap with, requirements under the Process Safety Management (PSM) program administered by the Occupational Safety and Health Administration (OSHA). However, while OSHA’s PSM regulations focus on workplace safety, the RMP regulations focus primarily on minimizin

1 The plaintiff requested US$21 million in compensatory damages and $325 million in punitive damages; the jury awarded all of the punitive damages along with a $38 million in compensatory damages.2See 42 U.S.C. § 7412(b)(1).3See David A. Fusco et al., Ethylene Oxide: The Litigation Risks And Regulatory Issues Ahead, K&L GATES HUB (July 26, 2021), https://www.klgates.com/Ethylene-Oxide-The-Litigation-Risks-and-Regulatory-Issues-Ahead-7-26-2021.4 U.S. ENV’T PROT. AGENCY, EPA/635/R-16/350FA, EVALUATION OF THE INHALATION CARCINOGENICITY OF ETHYLENE OXIDE (2016).