Nat'l Ass'n for Surface Finishing v. Envtl. Prot. Agency

• Decision Date: 21 July 2015
• Docket Number: Nos. 12–1459,12–1460,13–1147.,s. 12–1459
• Parties: NATIONAL ASSOCIATION FOR SURFACE FINISHING, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY and Gina McCarthy, Respondents California Communities Against Toxics, et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

795 F.3d 1

NATIONAL ASSOCIATION FOR SURFACE FINISHING, Petitioner

v. ENVIRONMENTAL PROTECTION AGENCY and Gina McCarthy, RespondentsCalifornia Communities Against Toxics, et al., Intervenors.

Nos. 12–1459

12–1460

13–1147.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 3, 2014.

Decided July 21, 2015.

Jerry Stouck, argued the cause, for petitioner, National Association, for Surface Finishing. With him on the briefs was Christopher L. Bell. Joel F. Visser and Roger R. Martella Jr. entered appearances.

Emma C. Cheuse, argued the cause, for petitioners Clean Air Council et al. With her on the briefs was James S. Pew. Khushi K. Desai entered an appearance.

Jonathan A. Wiener, Deputy Attorney General, Office of the Attorney General for the State of California, argued the cause for amici curiae California Air Resources Board, et al. With him on the brief were Kamala D. Harris, Attorney General, Robert W. Byrne, Senior Assistant Attorney General, Gavin G. McCabe, Supervising Deputy Attorney General, Ross H. Hirsch, Deputy Attorney General, Eric T. Schneidermann, Attorney General, Office of the Attorney General for the State of New York, Michael J. Myers, Assistant Attorney General, Kurt R. Wiese, and Barbara B. Baird.

William L. Wehrum, Elizabeth L. Horner, Leslie A. Hulse, and Quentin Riegel were on the brief for amicus curiae Chromium RTR Coalition in support of petitioner National Association for Surface Finishing.

John T. Suttles, Myra D. Blake, and Patrice L. Simms, were on the brief for American Lung Association, et al. as amici curiae in support of environmental petitioners.

Scott L. Nelson and Allison M. Zieve, were on the brief, for amicus curiae United States Representative Henry A. Waxman in support of environmental petitioners.

T. Monique Peoples, Attorney, U.S. Department of Justice, argued the cause for respondents. With her on the brief were Sam Hirsch, Acting Assistant Attorney General, Stephanie J. Talbert, Attorney, and Jan M. Tierney, Attorney, U.S. Environmental Protection Agency.

Robert G. Dreher and Jon M. Lipshultz, Attorneys, U.S. Department of Justice, entered appearances.

Jerry Stouck and Christopher L. Bell, were on the brief, for intervenor-respondent National Association of Surface Finishing.

Emma C. Cheuse and James S. Pew, were on the brief, for environmental respondents-intervenors Clean Air Act Council, et al.

Before GRIFFITH and PILLARD, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion

PILLARD, Circuit Judge:

In this case we consider a pair of challenges to a 2012 regulation promulgated by the U.S. Environmental Protection Agency (EPA), revising Clean Air Act standards for emissions of hexavalent chromium. Hexavalent chromium is a carcinogenic compound emitted into the air during various chrome-finishing processes at more than a thousand facilities across the country. The facilities regulated under the challenged rule provide final, shiny, corrosion-resistant coatings on the surfaces of products ranging from plumbing fixtures to airplane wings. The various finishing processes used at those facilities all have the unfortunate side effect of generating misty chromium emissions that, if not properly controlled, can cause cancer. Facilities limit those emissions through the use of devices that capture emissions from the finishing tanks, or with fume suppressants that inhibit chromium droplets from bursting from the tank surface into the air in the first place. The new rule imposes more stringent emissions limitations than its predecessor and mandates the phase-out of a category of fume suppressants containing the toxic compound perfluorooctyl sulfonate (PFOS).

Various environmental organizations and an industry association have filed petitions challenging EPA's revised rule. The environmental petitioners—the Clean Air Council, California Communities Against Toxics, and the Sierra Club—argue that the rule is too lax because EPA ignored relevant information and impermissibly considered costs in calculating revised emissions standards. The industry petitioner—the National Association for Surface Finishing (the Association)—argues that the rule is too stringent. The Association contends that EPA failed to make a determination of developments in practices, processes, or control technologies that the Association claims is a statutorily required precondition to rule revision, that the agency lacked adequate support in the record for phasing out the PFOS-based fume suppressants, and that EPA unreasonably assessed public health risk. The environmental petitioners and the Association intervened in each other's cases, and we consolidated the cases for review. We deny the petitions.

I.

Section 112 of the Clean Air Act requires EPA to promulgate, and periodically revise as appropriate, national emissions standards for hazardous air pollutants. See 42 U.S.C. § 7412(d). When Congress enacted that emissions standards program in 1970, it directed EPA to identify and regulate hazardous air pollutants. Dissatisfied with EPA's progress in identifying hazardous air pollutants, Congress amended the Act in 1990 to name nearly 200 such pollutants, including chromium compounds, and charged EPA with identifying sources of those pollutants and setting emissions standards for them. See 42 U.S.C. § 7412(b)(1), (c), (d) ; see also, e.g., Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544, 549–50 (D.C.Cir.2015) ; Natural Res. Def. Council v. EPA (“NRDC ”), 529 F.3d 1077, 1079 (D.C.Cir.2008). EPA undertakes two basic regulatory tasks under section 112 that are relevant to this case: initial promulgation, followed by periodic review and potential revision, of emissions standards.

EPA promulgates an emissions standard for a given pollutant by first determining the average emissions already achieved by the top tier of least polluting emitters, then considering whether a more demanding standard might be practicable and cost effective, and, if so, setting a standard that pushes beyond current practice. For starters, the agency identifies the 12% of facilities that emit the pollutant at the lowest levels, and then calculates the average level of emissions achieved by those facilities. 42 U.S.C. § 7412(d)(3). That calculation is dubbed the “MACT floor” because it is based on “maximum achievable control technology,” and the standard EPA promulgates must not be less stringent than that performance “floor.” See Mexichem, 787 F.3d at 549–50 & n. 2 ; Nat'l Lime Ass'n v. EPA, 233 F.3d 625, 629 (D.C.Cir.2000). EPA then considers whether, taking into account costs, certain health and environmental effects, and energy requirements, a standard might be practicable that would go beyond the emissions reductions those existing facilities already achieve.See 42 U.S.C. § 7412(d)(2) ; Nat'l Lime, 233 F.3d at 629. If a more stringent standard is practicable in view of those factors, EPA promulgates a “beyond-the-floor” standard at that more stringent level; otherwise the agency sets the standard at the performance-based MACT floor. See Mexichem, 787 F.3d at 549–50.

EPA then periodically reviews and, if appropriate, revises the promulgated emissions standard, starting within eight years of the initial promulgation. That entails two distinct, parallel analyses: a recurring “technology review” under section 112(d)(6) and a one-time “risk review” under section 112(f)(2). In the technology review, EPA periodically assesses, no less often than every eight years, whether standards should be tightened in view of developments in technologies and practices since the standard's promulgation or last revision, and, in particular, the cost and feasibility of developments and corresponding emissions savings. See 42 U.S.C. § 7412(d)(6) ; see also Ass'n of Battery Recyclers, Inc. v. EPA (“ABR ”), 716 F.3d 667, 673–74 (D.C.Cir.2013).

Separately, in the one-time risk review, EPA addresses, within eight years of a standard's promulgation, lingering public health risk that the initial standard did not eliminate. See 42 U.S.C. § 7412(f)(2). To that end, EPA first considers whether the residual health risk is “acceptable,” a threshold EPA generally interprets as carrying cancer incidence no greater than 100 in one million. 75 Fed.Reg. 65,068, 65,07172 (Oct. 21, 2010) ; see NRDC, 529 F.3d at 1082. If the risk is not acceptable, EPA sets a more stringent standard regardless of cost to bring the risk down to an acceptable level. Even if a risk would be deemed acceptable because it is under that threshold, however, EPA considers whether a more stringent standard is “required in order to provide an ample margin of safety to public health.” 42 U.S.C. § 7412(f)(2)(A). What determines whether a more stringent standard providing an ample margin of safety is statutorily required is the agency's consideration of health information as well as costs, economic impact, feasibility, and other relevant factors. See id.; see also NRDC, 529 F.3d at 1083 ; 75 Fed.Reg. at 65,072. If, taking those relevant considerations into account, further risk reductions are attainable beyond the “acceptable” threshold, they are required.

II.

Two decades ago, EPA promulgated standards restricting emissions of hexavalent chromium from the types of chromium electroplating and anodizing facilities regulated under the rule challenged in this case.¹ 60 Fed.Reg. 4,948 (Jan. 25, 1995). The agency has reviewed and revised those standards over the years. At issue here is the 2012 Final Rule that most recently updated them. See Final Rule, National Emissions Standards for Hazardous Air Pollutant Emissions: Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks; and Steel Pickling—HCl Process Facilities and Hydrochloric Acid Regeneration Plants, 77 Fed.Reg. 58,220 (Sept. 19, 2012).

The initial, 1995 rule set emissions limits and allowed facilities to demonstrate compliance with them either by directly measuring chromium emissions or by gauging the surface tension of the chemical...