Portland Cement Ass'n v. Environmental Protection Agency
398 U.S. App. D.C. 397
| D.C. Cir. | 2011Background
- Portland Cement Association (PCA) challenged EPA's 2010 NESHAP and NSPS rules for portland cement kilns under the Clean Air Act (CAA).
- EPA set NESHAP floors using best-performing sources within the NESHAP category and beyond-the-floor options; NSPS required cost and other factors in setting standards.
- EPA concurrently pursued a CISWI rule defining solid waste incinerators, which could reclassify many kilns out of the NESHAP category after the NESHAP rule issued.
- EPA included kilns potentially subject to CISWI in the NESHAP data set, despite mutual exclusivity of CISWI and NESHAP standards.
- PCA sought reconsideration of both NESHAP and NSPS; EPA granted reconsideration on clinker storage piles and modified-source PM for NSPS but denied on other issues.
- Court held EPA acted arbitrarily in tying NESHAP data to a CISWI regime and remanded for reconsideration; stayed NESHAP clinker storage-pile standards; denied PCA’s NSPS challenge; dismissed Environmental Petitioners’ greenhouse gas challenge for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| NESHAP floor data tied to CISWI rulemaking | PCA: CISWI ongoing rulemaking meant many kilns would not stay in NESHAP; data used was inappropriate | EPA: no obligation to delay; data current under rulemaking | Arbitrary and remanded |
| Adequacy of agency response to CISWI interdependence | PCA: agency failed to acknowledge CISWI impact on NESHAP dataset | EPA: concurrent processes warranted the approach used | Arbitrary and remanded |
| NSPS PM standard derivation and cost considerations | PCA: cost and non-air factors improperly analyzed or duplicated | EPA: cost and other factors adequately considered; PM limit based on fabric-filter tech | Upheld; NSPS PM standard sustained |
| Environmental Petitioners’ greenhouse gas standard challenges jurisdiction | Environmental Petitioners: agency finality to defer GHG standards reviewable | Agent: no final agency action to review; ongoing data collection | Lack of jurisdiction; petition dismissed |
| Notice and finality regarding CEMS requirement | PCA: inadequate notice that NSPS would require continuous emissions monitoring | Agency: notice via related NESHAP rulemaking; harmless error | Harmless error; did not invalidate NSPS |
Key Cases Cited
- Sierra Club v. EPA, 479 F.3d 875 (D.C.Cir.2007) (data quality vs. input quality in setting emissions floors)
- National Lime Ass'n v. EPA, 233 F.3d 625 (D.C.Cir.2000) (emissions achieved must reflect actual control efforts, not incidental effects)
- North Carolina v. EPA, 531 F.3d 896 (D.C.Cir.2008) (arbitrary basing on irrelevant factors when setting standards)
- Bechtel v. FCC, 957 F.2d 873 (D.C.Cir.1992) (require reasonable examination of data and rationale)
- Panhandle E. Pipe Line Co. v. FERC, 890 F.2d 435 (D.C.Cir.1989) (need for reasoned decisionmaking in agency actions)