Natural Resources Defense Council v. E.P.A.

Decision Date06 June 2008
Docket NumberNo. 07-1053.,07-1053.
Citation529 F.3d 1077
PartiesNATURAL RESOURCES DEFENSE COUNCIL and Louisiana Environmental Action Network, Petitioners v. ENVIRONMENTAL PROTECTION AGENCY, Respondent American Chemistry Council, Intervenor.
CourtU.S. Court of Appeals — District of Columbia Circuit

John D. Walke argued the cause for petitioners. With him on the briefs were Aaron S. Colangelo, Patrice Simms, Adam Babich, and Jill Witkowski.

David S. Gualtieri, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief were John C. Cruden, Deputy Assistant Attorney General, and Michael W. Thrift, Counsel. Kent E. Hanson, Attorney, U.S. Department of Justice, entered an appearance.

Leslie A. Hulse, Charles H. Knauss, Robert S. Taylor, and Robert V. Zener were on the brief for intervenor.

Before: GRIFFITH and KAVANAUGH, Circuit Judges, and SILBERMAN, Senior Circuit Judge.

Opinion for the court filed by Senior Circuit Judge SILBERMAN.

SILBERMAN, Senior Circuit Judge.

Synthetic organic chemicals have few direct consumer uses, but they often serve as raw materials in the production of plastics, rubbers, fibers, protective coatings, and detergents. Petitioners, the Natural Resources Defense Council and the Louisiana Environmental Action Network, challenge EPA's residual risk rulemaking under subsection 112(f) of the Clean Air Act for facilities that use or produce synthetic organic chemicals ("the industry"). Petitioners also challenge EPA's technology review under subsection 112(d)(6). In a rather unusual bit of rulemaking, the agency determined by rule not to change its previous rule, which gave rise to petitioners' challenge. We deny the petition.

I.

Section 112 of the Clean Air Act regulates hazardous air pollutants. When the Act was passed in 1970, hazardous air pollutant was defined as a substance "which may reasonably be anticipated to result in an increase in mortality or an increase in serious irreversible, or incapacitating irreversible, illness." Sierra Club v. EPA, 353 F.3d 976, 979 (D.C.Cir.2004) (citation omitted). The Administrator of the EPA was required to prepare a list of air pollutants that fell within this definition, then promulgate standards to protect the public health from these substances with an "ample margin of safety." Id.

As we have explained, this arrangement proved problematic. Id. In light of unrealistic time frames and scientific uncertainly over which substances posed a threat to public health, EPA only listed eight pollutants as hazardous between 1970 and 1990. Id. In 1990, Congress sought to hasten the process by adopting a new regulatory approach for hazardous air pollutants. Rather than have EPA list one-by-one those substances likely to be harmful, the amended version of section 112 provides a list of 191 substances that Congress deemed to be hazardous. 42 U.S.C. § 7412(b)(1). EPA could subsequently add to or subtract from this list. Id. § 7412(b)(2)-(3).

Instead of basing its regulations on health risks (the "ample margin of safety"), EPA was required by the 1990 amendments to adopt technology-based standards in the first instance. That is to say, in the first round of regulation, the agency was obliged to look to the best available control technology to control emissions for each category of major sources that emits one or more of the listed hazardous air pollutants.1 Id. § 7412(d)(2)-(3). (The control technology used to meet this standard is referred to as the "maximum achievable control technology" or "MACT.") Under this technology-based approach, standards for new sources may not be less stringent than "the emission control that is achieved in practice by the best controlled similar source." Id. § 7412(d)(3). And for existing sources, the emission standards may not be less stringent than "the average emission limitation achieved by the best performing 12 percent of the existing sources." Id. After setting the "floor"i.e., the minimum required reduction in emissions for a new or existing source — EPA has discretion to require an even greater reduction in emissions, taking into account costs, health effects, environmental effects, and energy requirements.2 Id. § 7412(d)(2).

In the second stage of regulation, EPA was obliged to review any residual health risks that had not been eliminated by the initial technology-based standards. Id. § 7412(f). This second stage is described as "risk-based" or "health-based" because it requires EPA to set a standard based on a medical assessment of a given pollutant's health risks (as was true of the pre-1990 statute), rather than the current state of control technology. See generally Percival, Schroeder, Miller & Leape, ENVIRONMENTAL REGULATION: LAW, SCIENCE & POLICY 126 (4th ed.2003). Within six years of promulgating the technology-based standards, EPA was required to prepare a report to Congress analyzing any residual health risks. If Congress did not act on the report, then EPA was to conduct residual risk analysis under subsection 112(f)(2).

* * *

EPA initially promulgated technology-based emission standards for the industry in 1994 (there are 238 facilities in the United States that produce or use synthetic organic chemicals).3 Those standards required the use of control technologies such as recovery devices, thermal oxidizers, carbon absorbers, and steam strippers. After submitting the required report to Congress in 1999, the agency commenced residual risk rulemaking, apparently because — as we discuss below — it read the statute as requiring a rulemaking proceeding to consider whether to revise the technology-based standards, since the industry's emissions pose lifetime excess cancer risks of greater than one-in-one million.

In the notice of proposed rulemaking, EPA listed two options for the residual risk rulemaking, one of which would have imposed somewhat stricter standards. 71 Fed.Reg. 34,422, 34,438 (2006). But the other, which EPA adopted in the final rule, 71 Fed Reg. 76,603 (2006), was a reaffirmation of the existing rule. EPA determined that under the existing technology-based standard, no individual would face an excess lifetime cancer risk of greater than 100-in-one million, which EPA regards as the "presumptively acceptable" level under its precedents. In the same regulatory procedure, EPA sought to satisfy another statutory requirement, subsection 112(d)(6), which commands the Administrator to "review, and revise as necessary" the technology-based standards in light of technological developments at least every eight years. 42 U.S.C. § 7412(d)(6). It concluded there were no such developments.

Petitioners challenge EPA's actions on several grounds. Their primary argument is one of statutory construction. They contend that the statute obliged EPA, in the residual risk rulemaking, to tighten the standards for the industry so that the lifetime excess cancer risk to exposed persons would be no greater than one-in-one million. It is also argued that in reviewing the technology-based standards, EPA violated subsection 112(d)(6) by taking costs into account. Alternatively, even if EPA complied with the statute, petitioners claim that the rulemaking violated the APA, as arbitrary and capricious, because it relied on faulty data and overlooked significant sources of emission.

II.
A.

Petitioners contend that subsection 112(f)(2)(A) obliged EPA to revise industry standards to reduce lifetime excess cancer risk to one-in-one million. Petitioners rely primarily on the last sentence of that subsection, whereas EPA looks to the whole subsection. That provision states in full:

If Congress does not act on any recommendation submitted under paragraph (1), the Administrator shall, within 8 years after promulgation of standards for each category or subcategory of sources pursuant to subsection (d) of this section, promulgate standards for such category or subcategory if promulgation of such standards is required in order to provide an ample margin of safety to protect public health in accordance with this section (as in effect before November 15, 1990) or to prevent, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental effect. Emissions standards promulgated under this subsection shall provide an ample margin of safety to protect public health in accordance with this section (as in effect before November 15, 1990), unless the Administrator determines that a more stringent standard is necessary to prevent, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental effect. If standards promulgated pursuant to subsection (d) of this section and applicable to a category or subcategory of sources emitting a pollutant (or pollutants) classified as a known, probable or possible human carcinogen do not reduce lifetime excess cancer risks to the individual most exposed to emissions from a source in the category or subcategory to less than one in one million, the Administrator shall promulgate standards under this subsection for such source category.

42 U.S.C. § 7412(f)(2)(A).

It is undisputed that facilities that produce or use synthetic organic chemicals emit carcinogens and are, therefore, within the reach of the last sentence. It is also undisputed that, in light of the fact that existing technology-based standards do not reduce the risk to less than one-in-one million, EPA was obliged to "promulgate standards" under subsection 112(f). Petitioners contend that the third sentence obviously means that residual risk standards must meet the threshold test — i.e., EPA must reduce such risks to one-in-one million. That may well be a possible interpretation, but the sentence contains a glaring omission; it does not say what petitioners would like us to infer. Rather, that sentence instructs the Administrator to ...

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