Portland Cement Ass'n v. Envtl. Prot. Agency
| Decision Date | 09 December 2011 |
| Docket Number | 10–1376,10–1366,10–1377,10–1364,10–1370,10–1372,11–1245.,10–1375,10–1374,10–1373,10–1363,11–1244,10–1368,10–1361,10–1369,10–1379,10–1365,11–1012,10–1367,Nos. 10–1358,10–1359,s. 10–1358 |
| Citation | 665 F.3d 177,398 U.S.App.D.C. 397,73 ERC 1801 |
| Parties | PORTLAND CEMENT ASSOCIATION, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY and Lisa Perez Jackson, RespondentsCape Fear River Watch, et al., Intervenors.Portland Cement Association, Petitioner v. Environmental Protection Agency And Lisa Perez Jackson, RespondentsUtility Solid Waste Activities Group, et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
OPINION TEXT STARTS HERE
On Petitions for Review of a Final Action of the Environmental Protection Agency.Carter G. Phillips argued the causes for Industry Petitioners on NSPS and NESHAP Issues. With him on the briefs were Roger R. Martella, Jr., Timothy K. Webster, Deborah E. Jennings, Richard G. Stoll, Beth S. Ginsberg, Jason T. Morgan, William M. Bumpers, Debra J. Jezouit, Ashley C. Parrish, Cynthia A.M. Stroman, and Chet M. Thompson. Howard L. Gilberg and Roger J. Marzulla entered appearances.
David D. Doniger argued the cause for Environmental Petitioners and State Intervenors on NSPS Issues. With him on the briefs were Meleah Geertsma, Timothy D. Ballo, Joanne Marie Spalding, and Craig Holt Segall.
Kamala D. Harris, Attorney General, Office of the Attorney General for the State of California, Thomas G. Heller, Deputy Attorney General, John Kroger, Attorney General, Office of the Attorney General for the State of Oregon, Paul Logan, Assistant Attorney in Charge, Oregon Department of Justice, Robert M. McKenna, Attorney General, Office of the Attorney General for the State of Washington, and Leslie R. Seffern, Assistant Attorney General, were on the brief for state intervenors California, et al. in support of Environmental Petitioners. Susan L. Durbin, Attorney, Office of the Attorney General for the State of California, entered an appearance.Julie A. Weis was on the brief for amici curiae Baker City and Baker County, Oregon, et al. in support of petitioners.Russell S. Frye was on the brief for amicus curiae SSM Coalition in support of petitioners.T. Monique Peoples and Daniel R. Dertke, Attorneys, U.S. Department of Justice, argued the causes for respondents on NSPS and NESHAP Issues. With them on the briefs were Steven Silverman and Elliott Zenick, Counsel, U.S. Environmental Protection Agency.Carter G. Phillips argued the cause for Industry Intervenors in support of respondents. With him on the briefs were Roger R. Martella, Jr., Timothy K. Webster, Deborah E. Jennings, Richard G. Stoll, Beth S. Ginsberg, Jason T. Morgan, William M. Bumpers, Debra J. Jezouit, Norman W. Fichthorn, Allison D. Wood, Ashley C. Parrish, Cynthia A.M. Stroman, and Chet M. Thompson. Douglas H. Green, Aaron J. Wallisch, and Willian R. Weissman entered appearances.Timothy D. Ballo, Geoffrey R. Gisler, James S. Pew, Seth L. Johnson, Avinash Kar, Meleah Geertsma, and John D. Walke were on the briefs of Environmental Intervenors in support of respondents. John T. Suttles, Jr. and David D. Doniger entered appearances.
Before: HENDERSON, TATEL and BROWN, Circuit Judges.
Opinion for the Court filed PER CURIAM.
Pursuant to the Clean Air Act (“CAA”), the Environmental Protection Agency enacted twin rules in 2010 setting emissions standards for portland cement facilities—one under a section called National Emission Standards for Hazardous Air Pollutants (NESHAP), 42 U.S.C. § 7412(a)(4), the second under a section called New Source Performance Standards (NSPS), id. § 7411. Petitioners, Portland Cement Association and other cement manufacturers (“PCA”), argue that both rules violate the CAA and are arbitrary and capricious. A consortium of environmental groups including the Sierra Club (“Environmental Petitioners”) filed their own petition, arguing that EPA abused its discretion by declining to include greenhouse gas emissions standards in its NSPS rule.
For the reasons set forth below, we agree that EPA acted arbitrarily when it promulgated the final NESHAP rule and therefore grant PCA's petition for review with respect to EPA's denial of reconsideration on that issue. We also stay the NESHAP standards for clinker storage piles pending reconsideration by EPA. We deny PCA's petitions with respect to all other issues relating to NESHAP and NSPS, and dismiss Environmental Petitioners' petition for lack of jurisdiction.
Portland cement, a fine gray powder used to make construction-grade concrete, is produced by combining raw materials in a kiln and heating the mixture to produce a substance called “clinker,” which is then cooled and ground into powder. This kiln firing process causes the airborne emission of particulate matter (“PM”), as well as a number of other dangerous chemicals. Once produced, the clinker is stored in piles which may also continue to emit some hazardous chemicals.
There are three basic types of portland cement kilns. The first, called “long wet” or “long dry” process kilns, are the least efficient. These kilns, which tend to be older, simply heat raw materials as they pass through a large rotating cylinder. The second type of kiln, called a “preheater,” is more modern and efficient. Preheater kilns preheat the raw materials by first passing them through a tower filled with hot exhaust gases. Finally, the most modern and efficient kilns, preheater/precalciner kilns, are equipped with both preheater towers and a combustion vessel which heats raw materials at a high temperature before they reach the core of the kiln, removing moisture and undesirable compounds. Ultimately, the type of kiln directly affects the amount of uncontrolled pollutants emitted. For example, long wet and long dry process kilns emit between eight to ten times the amount of sulfur dioxide as preheater/precalciner kilns.
Two separate sections of the CAA, 42 U.S.C. § 7401 et seq., require EPA to promulgate emissions standards for “stationary sources” of pollution such as cement kilns. The first, NESHAP, requires EPA to set emissions standards for both new and existing sources. Id. § 7412(a)(4); (a)(10). The second, NSPS, requires EPA to set emissions standards for new and newly-modified sources. Id. § 7411. . Thus, although NESHAP and NSPS overlap as to regulation of new sources, NESHAP alone governs the regulation of existing sources, and NSPS alone governs the regulation of modified sources.
Pursuant to CAA Section 112, EPA sets NESHAP emissions limits in a two-stage process. First, EPA sets what it calls a “floor.” For new sources, the floor is equal to the amount of emissions reduction “achieved in practice by the best controlled similar source.” 42 U.S.C. § 7412(d)(3). For existing sources, the floor equals the amount of emissions reduction “achieved [on average] by the best performing 12 percent of the existing sources (for which the Administrator has emissions information)” in the source category. Id. If the category contains fewer than 30 sources, the floor is to be set based on the amount of emissions reduction achieved by the best performing five sources for which the Administrator has emissions information. Id. NESHAP emissions standards “shall not be less stringent than” this floor. Id. Second, EPA may go “beyond-the-floor” and set a more stringent standard if, taking cost and other factors into account, it determines that such a standard would be “achievable.” Id. § 7412(d)(2); see also Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855, 857–58 (D.C.Cir.2001) (). The promulgated NESHAP standard is known as the “maximum achievable control technology” or “MACT.”
Under NSPS, however, EPA is required to set standards for emissions that “reflect[ ] the degree of emission limitation achievable through the application of the best system of emission reduction.” 42 U.S.C. § 7411(a)(1). In contrast to NESHAP's two-stage process, under which EPA is prohibited from considering cost, achievability, or countervailing considerations at step one, NSPS requires EPA take into account the “cost of achieving” emissions reductions, as well as health, environmental, and energy considerations. Id. § 7411(a)(1).
In June 2008, EPA initiated two rulemaking procedures to revise emissions standards for the portland cement industry: one under NESHAP and one under NSPS. Following a comment period, these rules were finalized in September 2010. In the NESHAP rule, EPA set standards for new sources and existing sources for emissions of PM, mercury, hydrochloric acid, and hydrocarbons. EPA did not go “beyond-the-floor,” so these standards are instead equal to the respective floors. Because the rulemaking took place entirely at the first NESHAP step, EPA did not—because it could not at that step—take into account cost or other considerations.
In the NSPS rule, EPA, for the first time, set standards for both new and modified sources for emissions of nitrogen oxide and sulfur dioxide. In addition, EPA revised its existing NSPS emissions standard for PM, setting a limit of 0.01 pounds of PM emitted per ton of clinker produced. EPA concluded that this revised PM standard was achievable if kilns installed a particular type of pollution control technology: fabric filters with membrane bags.
EPA declined to include emissions standards for carbon dioxide or other greenhouse gases in its final NSPS rule. Explaining...
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