863 F.3d 834
D.C. Cir.2017Background
- Sierra Club and California Communities Against Toxics challenged EPA’s Final Determination that it had satisfied 42 U.S.C. § 7412(c)(6) by relying on previously promulgated MACT standards for surrogate pollutants rather than issuing specific standards for three listed HAPs: PCBs, POM, and HCB.
- § 7412(c)(6) requires EPA to list source categories accounting for at least 90% of each listed HAP’s aggregate emissions and to promulgate MACT standards for those sources; Congress set a statutory deadline of November 15, 2000.
- EPA previously issued MACT standards for other pollutants and, in its recent rulemaking, asserted those standards could serve as surrogates to satisfy the (c)(6) obligations for the three contested HAPs.
- Sierra Club submitted substantive comments during notice-and-comment, arguing EPA had not justified treating the pre-existing standards as surrogates and requested additional analysis and data supporting surrogacy relationships.
- EPA’s final rule largely declined to respond on the merits to those substantive comments, asserting the prior standards were not reopened and thus outside the scope of the rulemaking; Sierra Club petitioned for review and EPA moved to dismiss as untimely.
- The D.C. Circuit denied the timeliness motion, held EPA’s responses were inadequate regarding surrogacy explanations, and remanded for further proceedings without deciding the substantive correctness of EPA’s surrogacy determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of petition | Challenge is to EPA’s Determination repurposing pre-existing standards; could not be filed until Final Determination issued, so timely under § 7607(b)(1) | Petition actually attacks adequacy of the underlying pre-existing MACT standards and was filed late | Petition is timely; challenge concerns the Final Determination and was properly filed after it issued |
| Use of surrogates to satisfy § 7412(c)(6) | EPA arbitrarily relied on surrogate pollutants (pre-existing standards) for PCBs, POM, HCB without adequate justification or supporting analysis | EPA may rely on existing standards and need not reopen or relitigate the substance of prior rulemakings; comments mischaracterize the proposal | EPA may use surrogates, but here its explanations of new surrogacy relationships were insufficient and it failed to respond to substantive comments |
| Adequacy of EPA’s notice-and-comment responses | EPA failed to address major substantive comments challenging surrogacy; simply asserted timeliness/scope defenses | Prior standards are established and outside the scope; EPA’s explanations were only technical and did not require further response | Agency failed to adequately respond to substantive comments; remand required for further explanation and response |
| Standard for evaluating surrogacy | EPA must show surrogacy is reasonable under Nat’l Lime three-part test (presence, capture by controls, correlation) | EPA contends surrogates can be used and offered some explanations in the proposed and final determinations | Court applies established reasonableness framework and finds EPA did not sufficiently justify or explain the surrogacy relations here; remand ordered |
Key Cases Cited
- Sierra Club v. EPA, 699 F.3d 530 (D.C. Cir. 2012) (prior decision rejecting EPA timeliness argument and remanding for notice-and-comment)
- Sierra Club v. EPA, 353 F.3d 976 (D.C. Cir. 2004) (discussing (c)(6) duties and evaluating surrogate use)
- Nat'l Lime Ass'n v. EPA, 233 F.3d 625 (D.C. Cir. 2000) (establishing three-part reasonableness test for surrogates)
- U.S. Sugar Corp. v. EPA, 830 F.3d 579 (D.C. Cir. 2016) (surrogacy must show close relationship between surrogate and target HAP emissions)
- Mossville Envtl. Action Now v. EPA, 370 F.3d 1232 (D.C. Cir. 2004) (surrogacy requires correlation between surrogate and target HAPs)
- Pub. Citizen, Inc. v. FAA, 988 F.2d 186 (D.C. Cir. 1993) (agency must respond to major substantive comments)
- NRDC v. EPA, 859 F.2d 156 (D.C. Cir. 1988) (same: failure to address substantive comments can render action arbitrary)
- Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (U.S. 1984) (framework for judicial review of agency statutory interpretation)