233 F.3d 625 (D.C. Cir. 2000), 99-1325, Nat'l Lime Assoc. v. Environmental Protection Agency

Docket Nº:99-1325 Consolidated with 99-1326
Citation:233 F.3d 625
Party Name:National Lime Association, Petitioner v. Environmental Protection Agency, Respondent
Case Date:December 15, 2000
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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233 F.3d 625 (D.C. Cir. 2000)

National Lime Association, Petitioner


Environmental Protection Agency, Respondent

No. 99-1325 Consolidated with 99-1326

United States Court of Appeals, District of Columbia Circuit

December 15, 2000

Argued September 5, 2000

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On Petitions for Review of An Order of the Environmental Protection Agency

Hunter L. Prillaman argued the cause for petitioner National Lime Association. With him on the briefs were Arline M. Seeger and Kenneth A. Rubin.

James S. Pew argued the cause for petitioner Sierra Club. With him on the briefs was Howard I. Fox.

Daniel M. Flores, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief were Lois J. Schiffer, Assistant Attorney General, Daniel R. Dertke, Attorney, and Steven E. Silverman, Attorney, Environmental Protection Agency. Christopher S. Vaden and H. Michael Semler, Attorneys, U.S. Department of Justice, entered appearances.

William M. Bumpers was on the brief for amicus curiae the American Portland Cement Alliance.

Before: Edwards, Chief Judge, Ginsburg and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judges Ginsburg and Tatel.[*]

Ginsburg and Tatel, Circuit Judges:

In this case we consider petitions by the Sierra Club and the National Lime Association challenging the Environmental Protection Agency's hazardous air pollutant emission regulations for cement manufacturing. With respect to the Sierra Club petition we (1) reject its challenge to the emission standards for hazardous metals and dioxin/furan; (2) find the Agency's failure to set standards for hydrogen chloride, mercury, and total hydrocarbons contrary to the Clean Air Act's plain language; (3) direct EPA to consider the health impacts of potentially stricter standards for hazardous metals; and (4) sustain the regulation's monitoring requirements. Concluding that the National Lime Association has associational standing, we (1) reject its argument that EPA's use of particulate matter as a surrogate for non-volatile metal hazardous air pollutants violates the Clean Air Act and is arbitrary and capricious; and (2) reject its challenge to the testing method EPA adopted for determining whether a manufacturer qualifies as a "major source" of hazardous air pollutants.

I. Background

The Clean Air Act requires the Environmental Protection Agency to establish emission standards for "major sources" of hazardous air pollutants listed in the statute. 42 U.S.C. § 7412(d)(1). The Act directs the Agency to review the list periodically, and, where appropriate, to revise it by rule. Id. § 7412(b)(2). Hazardous air pollutants are known as HAPs.

A "major source" is any stationary source that emits ten tons per year or more of any single HAP or twenty-five

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tons per year or more of any combination of HAPs. Id. § 7412(a)(1). Under section 7412(d)(2) of the statute, emission standards must require

the maximum degree of reduction in emissions [of HAPs] ... that the Administrator, taking into consideration the cost of achieving such emission reduction, and any nonair quality health and environmental impacts and energy requirements, determines is achievable ... through application of measures, processes, methods, systems or techniques including, but not limited to, ... process changes, substitution of materials or other modifications.

In addition to this general guidance, the statute includes minimum stringency requirements for emission standards that apply without regard to either costs or the other factors and methods listed in section 7412(d)(2). These stringency requirements differ depending on whether a source is "new" or "existing." New sources are defined as "stationary source[s], the construction or modification of which is commenced after the publication of regulations (or, if earlier, proposed regulations) prescribing" air pollution standards that will be applicable to such sources. Id. § 7411(a)(2). For new sources, the statute provides that "[t]he maximum degree of reduction in emissions that is deemed achievable for new sources ... shall not be less stringent than the emission control that is achieved in practice by the best controlled similar source, as determined by the Administrator." Id. § 7412(d)(3) (emphasis added). For existing sources, defined as all stationary sources other than new sources, id. § 7411(a)(6), the statute provides that standards shall not be less stringent than "the average emission limitation achieved by the best performing 12 percent of the existing sources (for which the Administrator has emissions information)." Id. § 7412(d)(3)(A).

EPA implements these statutory requirements through a two-step process. The Agency begins by setting the minimum stringency standards required by section 7412(d)(3) for new and existing sources. Adding confusion to this already complex statute, EPA calls these minimum stringency requirements "floors," even though they in fact establish maximum emission levels. See Sierra Club v. EPA, 167 F.3d 658, 660 (D.C. Cir. 1999) ("Sierra"). Once the Agency sets statutory floors, it then determines, considering cost and the other factors listed in section 7412(d)(2), whether stricter standards are "achievable." 42 U.S.C. § 7412(d)(2). The Agency calls such stricter requirements "beyond-the-floor" standards.

This case concerns emission standards for port land cement manufacturing plants. See National Emission Standards for Hazardous Air Pollutants from the Portland Cement Manufacturing Industry, 40 C.F.R. §§ 63.1340-.1359. Patented in 1824 by Joseph Aspdin and named for its resemblance to port land stone, limestone from the Isle of Portland, see 9 The New Encyclopedia Britannica 629 (15th ed. 1998), port land cement is a fine powder that serves as the key ingredient in the concrete used in most construction. See National Emission Standards for Hazardous Air Pollutants; Proposed Standards for Hazardous Air Pollutants Emissions for the Portland Cement Manufacturing Industry, 63 Fed. Reg. 14,182, 14,185 (Mar. 24, 1998). The cement manufacturing process begins by grinding together materials such as limestone, clay, shale, sand, iron ore, and flyash and heating the mixture in a kiln. See 40 C.F.R. § 63.1341; 63 Fed. Reg. at 14,194. Known as "clinker," the heated mixture is then cooled in a "clinker cooler" and ground to a fine powder in a mill. See 40 C.F.R. § 63.1341.

Prior to setting cement manufacturing emission standards, EPA estimated that port land cement plants throughout the country emitted a total of 290 tons of HAPs per year. 63 Fed. Reg. at 14,183. EPA found that most individual cement plants released over ten tons of hydrogen

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chloride ("HCl") annually, qualifying them as major sources of HAPs for which the Clean Air Act required the Agency to set emission standards. See id. at 14,192-93. In addition to HCl, EPA found that cement plants emitted significant levels of HAP metals, dioxin/furan, mercury, and organic HAPs other than dioxin/furan. See id. at 14,195-96. These HAPs were released by kilns, clinker coolers, and mills, as well as by storage and transportation of materials within cement plants. See id. at 14,183. According to EPA, the potential health effects of these pollutants include inflammation of the respiratory tract, reproductive problems, cancer, nausea, blood disorders, and damage to the immune system. See id. at 14,184.

Acting on this information, EPA began by considering emission "floors" for each of the five major categories of HAPs released by cement plants. For dioxin/furan, the Agency set emission floors for both new and existing sources. Considering particulate matter ("PM") to be an appropriate surrogate for non-volatile HAP metals--components of PM that are difficult to measure directly--EPA established emission floors for new and existing sources for PM as well. EPA set no floors--referred to as floors of "no control"--for the three remaining HAPs, HCl, mercury, and organic HAPs other than dioxin/furan.

The Agency took a technology-based approach to setting emission floors. For cement plants qualifying as new sources, EPA identified the emission control technology used by the best performing plant for which it had information and called this the MACT floor technology. MACT means "maximum achievable control technology." EPA then looked at emissions data for all plants using the MACT floor technology for which it had information, not just data from the best performing plant, and set the new source emission floor at the highest emission level reported by a plant using that technology. To set existing source emission floors, EPA followed a similar procedure. It identified the technology used by the median plant out of the best twelve percent of plants for which it had information and set the existing source emission floor at the emission level of the worst performing plant in its database using that technology. If, as in the case of HCl, mercury, and organic HAPs other than dioxin/furan, EPA found an insufficient number of plants in its database (one for new sources or twelve percent for existing sources) controlling a particular HAP with pollution control technology, it set no standard at all, i.e., it determined that the emission floor was "no control."

Proceeding to the next stage of the emission standard setting process, EPA declined (with one exception not relevant to this case) to set beyond-the-floor standards for either new or existing sources for any of the five HAPs.

In addition to requiring EPA to set emission standards, the Clean Air Act directs the Agency to require owners and operators of major sources to conduct "enhanced monitoring" of their emissions and to submit "compliance certifications" reporting compliance with the emission standards. 42 U.S.C. § 7414(a)(3)....

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