Ass'n of Battery Recyclers, Inc. v. Envtl. Prot. Agency

• Decision Date: 28 May 2013
• Docket Number: Nos. 12–1129,12–1130,12–1134,12–1135.,s. 12–1129
• Citation: 716 F.3d 667
• Parties: ASSOCIATION OF BATTERY RECYCLERS, INC., et al., Petitioners v. ENVIRONMENTAL PROTECTION AGENCY and Lisa Perez Jackson, Respondents. RSR Corporation, et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

716 F.3d 667

ASSOCIATION OF BATTERY RECYCLERS, INC., et al., Petitioners

v.ENVIRONMENTAL PROTECTION AGENCY and Lisa Perez Jackson, Respondents.

RSR Corporation, et al., Intervenors.

Nos. 12–1129, 12–1130, 12–1134, 12–1135.

United States Court of Appeals,

District of Columbia Circuit.

Argued April 12, 2013.

Decided May 28, 2013.

On Consolidated Petitions for Review of Final Action of the United States Environmental Protection Agency.

Mark W. DeLaquil argued the cause for Industry–Petitioners/Industry Respondent–Intervenors. With him on the briefs were Robert N. Steinwurtzel, Thomas E. Hogan, Timothy J. Fitzgibbon, Bernard F. Hawkins Jr., Clarence Davis, Newman Jackson Smith, and Dennis Lane.

Emma C. Cheuse argued the cause for Environmental Petitioners/Environmental Respondent–Intervenors. With her on the briefs were James S. Pew and Avinash Kar.

Timothy D. Backstrom argued the cause for intervenor RSR Corporation. With him on the brief was Lynn L. Bergeson.

Angeline Purdy, Attorney, U.S. Department of Justice, argued the cause for respondents. With her on the brief was Steven Silverman, Attorney, U.S. Environmental Protection Agency.

Before: TATEL, Circuit Judge, and SILBERMAN and SENTELLE, Senior Circuit Judges.

Opinion for the Court filed PER CURIAM.

Concurring opinion filed by Senior Circuit Judge SILBERMAN.

PER CURIAM:

In this case we consider challenges to EPA's revised emissions standards for secondary lead smelting facilities. Finding petitioners' claims unpersuasive, foreclosed by Circuit precedent, or otherwise barred from review, we deny in part and dismiss in part the petitions for review.

I.

Section 112 of the Clean Air Act requires EPA to promulgate emissions standards for major sources of hazardous air pollutants (“HAPs”). 42 U.S.C. § 7412(d)(1). To do so, EPA calculates the “maximum achievable control technology” or “MACT,” a process that occurs in two stages. First, under CAA section 112(d)(3), EPA sets what it calls the “MACT floor”—certain minimum stringency requirements based on the amount of emissions reduction achieved in practice by the best performing sources. Id. § 7412(d)(3). Second, under section 112(d)(2), EPA “determines whether stricter standards, known as ‘beyond-the-floor’ limits, are achievable in light of the factors listed in [that provision].” Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855, 858 (D.C.Cir.2001) (per curiam); see42 U.S.C. § 7412(d)(2).

Section 112(d)(6) requires EPA to “review, and revise as necessary (taking into account developments in practices, processes, and control technologies)” the emissions standards promulgated under section 112. 42 U.S.C. § 7412(d)(6). Section 112(f)(2) also requires EPA to review emissions standards to “consider whether residual risks [to public health or the environment] remain that warrant more stringent standards than achieved through MACT.” Sierra Club v. EPA, 353 F.3d 976, 980 (D.C.Cir.2004); see42 U.S.C. § 7412(f)(2)(A).

In 2012, acting pursuant to sections 112(d)(6) and 112(f)(2), EPA revised the 1995 emissions standards for secondary lead smelting facilities, reducing allowable emissions by 90%—from the 2.0 milligrams per dry standard cubic meter (mg/dscm) previously permitted to 0.2 mg/dscm—and requiring smelters to totally enclose certain “fugitive” emission sources. See National Emissions Standards for Hazardous Air Pollutants from Secondary Lead Smelting (“Secondary Lead Rule”), 77 Fed. Reg. 556, 559, 564 (Jan. 5, 2012). Several industry groups and environmental groups filed petitions for review. Environmental and industry petitioners intervened as respondents in one another's cases, and RSR Corporation intervened both as a petitioner and as a respondent.

II.

Industry petitioners first argue that the Secondary Lead Rule impermissibly regulates elemental lead as a HAP. Although EPA must regulate lead compounds as a HAP, see42 U.S.C. § 7412(b)(1), the Clean Air Act prohibits EPA from listing or “in effect treat[ing]” elemental lead—or any criteria pollutant for which national ambient air quality standards (“NAAQS”) are promulgated—as a HAP under section 112, National Lime Association v. EPA, 233 F.3d 625, 638 (D.C.Cir.2000); see also42 U.S.C. § 7412(b)(2) ( “No [criteria pollutant] may be added to the list under this section ....”); id. § 7412(b)(7) (“The Administrator may not list elemental lead as a hazardous air pollutant under this subsection.”). Petitioners claim that the Rule violates this prohibition by (1) specifying a testing method that measures the mass of elemental lead (rather than the mass of lead compounds) in a source's emissions; and (2) setting HAP emissions standards at levels designed to attain the primary lead NAAQS. As counsel for industry petitioners conceded at oral argument, see Oral Arg. Rec. 1:07:17–1:07:53, the first contention is time-barred because the 1995 emissions standards employed an identical testing method (Method 12) and that approach was not challenged in court at that time. See National Emission Standards for Hazardous Air Pollutants from Secondary Lead Smelting, 60 Fed. Reg. 32,587, 32,589 (June 23, 1995); 42 U.S.C. § 7607(b)(1) (requiring that any petition for review be filed within sixty days of publication in the Federal Register). The second contention also fails because the Rule sets HAP emissions standards at levels designed to attain the primary lead NAAQS, not the converse. The Rule in no way alters the NAAQS itself: it does not change the NAAQS level, impose an earlier NAAQS attainment date, or modify state implementation plans.

Industry petitioners next make a related argument that because the Secondary Lead Rule “measure[s] lead compounds by reference to their elemental lead content and toxicity”—the same methodology they claim is used to measure elemental lead in the prevention of significant deterioration (“PSD”) program—regulation of these substances under the PSD program is duplicative and unlawful. Industry Petitioners' Br. 30; see42 U.S.C. § 7412(b)(6) (providing that PSD program shall not apply to HAPs listed under section 112). But we lack jurisdiction to consider this argument because EPA took no action with respect to the PSD program in this rulemaking.

Next, industry petitioners challenge EPA's methodology for estimating fugitive emissions at secondary lead smelting facilities and EPA's reliance on these estimates to conclude that total enclosure of fugitive emission sources was warranted. As EPA points out, however, industry petitioners “suggested in comments that any error in EPA's methodology resulted in an underestimation of emissions from completely unenclosed facilities.” Respondents' Br. 52. Thus, even if industry petitioners were correct, given that emissions from such facilities drove EPA's finding of unacceptable risk, they would “have done no more than show that the record even more fully supports the enclosure standard.” Respondents' Br. 53. Accordingly, petitioners lack standing to press this claim because they have failed to show that, absent the alleged methodological error, “ ‘there is a substantial probability that they would not be injured and that, if the court affords the relief requested, the injury will be removed.’ ” Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d 102, 146 (D.C.Cir.2012) (per curiam) (quoting Chamber of Commerce v. EPA, 642 F.3d 192, 201 (D.C.Cir.2011)).

Industry petitioners' challenge to the Rule's requirement of lead continuous emissions monitoring systems (“CEMS”) fares no better. To begin with, any claim that the CEMS requirement is arbitrary and capricious is premature. EPA has yet to promulgate performance specifications for CEMS and, until it does, smelters have no obligation to install CEMS. See40 C.F.R. § 63.548( l )(1) (requiring sources to install a lead CEMS “within 180 days” of promulgation of performance specifications). As petitioners themselves recognize, “without a [performance] specification it is impossible to determine whether lead CEMS will function appropriately in secondary lead smelters” or to ascertain “accurate cost information for the installation and operation of lead CEMS.” Industry Petitioners' Br. 22, 23. This court would thus clearly “benefit from further factual development of the issues” in connection with the performance specification rulemaking. Ohio Forestry Association, Inc. v. Sierra Club, 523 U.S. 726, 733, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998). With respect to petitioners' procedural claim that the proposed rule referred to no “data in the record supporting the feasibility and cost-effectiveness of lead CEMS that would allow for meaningful public comment,” Industry Petitioners' Br. 23; see42 U.S.C. § 7607(d)(3), EPA counsel assured us at oral argument that stakeholders will have the opportunity to challenge—and that EPA will reconsider imposing—the CEMS requirement itself in connection with the performance specification rulemaking, and counsel for industry petitioners agreed that this resolves their concern, see Oral Arg. Rec. 47:41–48:48, 1:06:45–1:06:55.

We also reject industry petitioners' contention that EPA's refusal to consider granting existing sources up to three years to comply with the revised emissions standards under CAA section 112(i)(3) was arbitrary and capricious. See42 U.S.C. § 7412(i)(3) (authorizing the Administrator to grant existing sources up to three years for compliance with emissions standards). EPA concluded that section 112(f)(4), which permits it to grant a waiver of no more than two years for compliance, see id. § 7412(f)(4), instead provided the governing framework for emissions standards promulgated under section 112(f), like those at issue here. This interpretation comports with the statute's unambiguous language. Although section 112(i)(3)'s three-year maximum compliance period applies generally to “any emissions standard ... promulgated under [section 112],” id. § 7412(i)(3), section 112(f)(4)'s two-year maximum...