370 F.3d 1232 (D.C. Cir. 2004), 02-1282, Mossville Environmental Action Now v. E.P.A.

Docket Nº:02-1282.
Citation:370 F.3d 1232
Party Name:MOSSVILLE ENVIRONMENTAL ACTION NOW and Sierra Club, Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY and Christine Todd Whitman, Administrator, U.S. Environmental Protection Agency, Respondents. Vinyl Institute, Inc., Intervenor.
Case Date:June 18, 2004
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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370 F.3d 1232 (D.C. Cir. 2004)

MOSSVILLE ENVIRONMENTAL ACTION NOW and Sierra Club, Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY and Christine Todd Whitman, Administrator, U.S. Environmental Protection Agency, Respondents.

Vinyl Institute, Inc., Intervenor.

No. 02-1282.

United States Court of Appeals, District of Columbia Circuit

June 18, 2004

Argued Oct. 9, 2003.

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[Copyrighted Material Omitted]

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On Petition for Review of an Order of the Environmental Protection Agency.

James S. Pew argued the cause and filed the briefs for petitioners.

Brian H. Lynk, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief were G. Scott Williams, Attorney, and Andrew G. Gordon, Attorney, Environmental Protection Agency. Christopher S. Vaden, Attorney, U.S. Department of Justice, entered an appearance.

Before: SENTELLE, RANDOLPH and ROGERS, Circuit Judges.

OPINION

SENTELLE, Circuit Judge:

Petitioners Mossville Environmental Action Now and Sierra Club seek review of an Environmental Protection Agency ("EPA") rule styled "National Emission Standards for Hazardous Air Pollutants for Polyvinyl Chloride and Copolymers Production." 67 Fed.Reg. 45,886 (July 10, 2002) ("the Part 63 NESHAP"). This rule, adopted pursuant to section 112 of the Clean Air Act ("CAA"), set emission standards for PVC and Copolymer production facilities that mirrored EPA's previous rule, articulated at 41 Fed.Reg. 46,560 (Oct. 21, 1976); 40 C.F.R. Subpart F (§§ 61.60 - 61.71) ("the Part 61 NESHAP" or "the Part 61 standard"), because the EPA determined that the Part 61 NESHAP were the most stringent controls in the industry.

Petitioners contend that EPA has failed to meet the requirements of the CAA in setting various limits for vinyl chloride emission. They further contend that EPA erred in failing to set emission limits for all

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of the other hazardous air pollutants ("HAPs") emitted during PVC production. Two of petitioners' arguments regarding vinyl chloride emissions limits have been waived, and we do not find meritorious their remaining challenges to those limits. We do, however, hold that EPA has failed properly to set emissions limits on other HAPs, as required by the CAA. The petition is therefore granted in part and denied in part.

I. Background

A. Statutory Background

This is the latest in a series of challenges to rulemakings establishing emission standards for HAPs in various industries under the 1990 revisions to the CAA. See, e.g., Northeast Md. Waste Disposal Auth. v. EPA, 358 F.3d 936 (D.C.Cir. 2004) (per curiam) (municipal waste combustors); Sierra Club v. EPA, 353 F.3d 976 (D.C.Cir. 2004) (copper smelters); Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855 (D.C.Cir. 2001) (hazardous waste combustors); Nat'l Lime Ass'n v. EPA, 233 F.3d 625 (D.C.Cir. 2000) (portland cement manufacturing facilities); Sierra Club v. EPA, 167 F.3d 658 (D.C.Cir. 1999) (medical waste incinerators); Appalachian Power Co. v. EPA, 135 F.3d 791 (D.C.Cir. 1998) (per curiam) (electric utility boilers).

Section 112 of the CAA was amended in 1990 to include a congressionally established list of HAPs. 42 U.S.C. § 7412(b)(1). Vinyl chloride is included on that list. Id. The CAA directs the EPA to establish categories and subcategories of major sources that emit one or more of the enumerated HAPs. Id. § 7412(c). The statute further requires the EPA to issue technology-based emission standards, known as National Emission Standards for Hazardous Air Pollutants ("NESHAP"), for those sources. There are essentially two steps in this process.

The CAA establishes a minimum required reduction-known as the maximum achievable control technology floor ("MACT floor"). The MACT floor 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). For existing sources:

Emission standards ... may be less stringent than standards for new sources in the same category or subcategory but shall not be less stringent, and may be more stringent than--

(B) the average emission limitation achieved by the best performing 5 sources (for which the Administrator has or could reasonably obtain emissions information) in the category or subcategory for categories with fewer than 30 sources.

Id.

Once floor standards are established, the EPA determines if standards more stringent than those actually achieved by the best performing sources are possible. These standards must

require the maximum degree of reduction in emissions of the hazardous air pollutants subject to this section (including a prohibition on such emissions, where achievable) that the Administrator, taking into consideration the cost of achieving such emission reduction, and any non-air quality health and environmental impacts and energy requirements, determines is achievable for new or existing sources in the category or subcategory to which such emission standard applies[.]

Id. § 7412(d)(2). These are known as "beyond-the-floor" standards. In setting beyond-the-floor standards, the EPA is to "require the maximum degree of reduction

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in emission of the hazardous air pollutant" that is achievable

through application of measures, processes, methods, systems or techniques including, but not limited to, measures which--

(A) reduce the volume of, or eliminate emissions of, such pollutants through process changes, substitution of materials or other modifications,

(B) enclose systems or processes to eliminate emissions,

(C) collect, capture or treat such pollutants when released from a process, stack, storage or fugitive emissions point,

(D) are design, equipment, work practice, or operational standards (including requirements for operator training or certification) as provided in subsection (h) of this section, or

(E) are a combination of the above.

Id. The EPA must balance these considerations with other factors such as cost, non-air-quality health and environmental concerns, and energy implications. Id. This technology-based regime replaced an earlier risk-based regime that required EPA to regulate at a level that provided an ample margin of safety to protect the public.

Additionally, section 112(d)(1) requires the EPA to set emission standards for every HAP emitted from each category or subcategory of major sources. Id. § 7412(d)(1); see also Nat'l Lime Ass'n v. EPA, 233 F.3d 625, 634 (D.C.Cir. 2000) (" National Lime") (stating EPA has "the clear statutory obligation to set emission standards for each listed HAP").

B. Regulatory Background

Vinyl chloride, a gas that is highly toxic and a known human carcinogen, is the starting point for PVC and copolymer production. It is first pressurized and agitated in a reactor, resulting in polymerization. Once polymerized, vinyl chloride can be transformed into many diverse products, from latex paints to PVC piping. Vinyl chloride can enter the atmosphere in several ways during PVC production. The gas can escape to the atmosphere when equipment is opened for routine maintenance, either through leaks in the production system, or by being present in such low concentrations that it escapes through recovery systems in exhaust streams. This form of pollution is often referred to as "stack emissions" or "exhaust gasses." There is also some residual vinyl chloride in the PVC itself, know as residual vinyl chloride monomer ("RVCM"). RVCM is removed from the PVC through a process known as stripping. Stripping results in vinyl chloride emissions as well. Those emissions are often referred to as "process equipment emissions" or "RVCM...

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