884 F.3d 1185
D.C. Cir.2018Background
- EPA promulgated MACT standards for major-source industrial boilers regulating organic HAPs indirectly by using CO as a surrogate and also adopted work-practice standards for startup/shutdown periods where numeric limits were deemed infeasible.
- EPA’s rulemaking evolved from 2011 to 2013 and 2015; EPA raised the lowest CO-based MACT floors to a uniform 130 ppm threshold in 2013 and reaffirmed that in 2015 after reconsideration.
- Sierra Club and allied NGOs challenged (1) EPA’s substitution of a single 130 ppm CO limit for several lower CO floors (arguing EPA lacked justification that lower CO would not further reduce organic HAPs) and (2) EPA’s startup/shutdown work-practice standards (arguing they unlawfully permit excess emissions and are too permissive).
- The D.C. Circuit previously addressed related broad challenges to CO-as-surrogate in U.S. Sugar (830 F.3d 579) and remanded some issues; this petition focuses on the specific 130 ppm decision and the startup/shutdown standards following EPA’s reconsiderations.
- The court found EPA’s evidentiary basis inadequate for adopting the 130 ppm threshold (remanded that issue) but upheld EPA’s startup/shutdown work-practice framework as consistent with Section 112(h) and not arbitrary.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPA permissibly raised certain CO MACT floors to 130 ppm, effectively capping CO surrogate control at that level | Sierra Club: EPA lacked reasoned support showing CO below 130 ppm would not further reduce organic HAPs; EPA relied on unreliable formaldehyde data and failed to identify 130 ppm as an achievable MACT Floor | EPA: Data show no further organic HAP reduction below ~130 ppm; CO is a conservative surrogate and 130 ppm reflects when organic HAP destruction is essentially complete | Court: EPA acted arbitrarily and capriciously; remand the 130 ppm CO limits for further explanation/analysis (no vacatur) |
| Whether EPA permissibly used CO as a surrogate for organic HAPs generally | Sierra Club: Correlation breaks down at low CO; alternative post-combustion controls may achieve better HAP reductions | EPA: Scientific basis supports CO as surrogate because incomplete combustion produces both CO and organic HAPs | Court: U.S. Sugar already upheld CO surrogacy generally; this decision does not revisit that holding (remand in U.S. Sugar addressed other gaps) |
| Whether EPA permissibly adopted work-practice standards (rather than numeric limits) for startup/shutdown under Section 112(h) | Sierra Club: EPA gave operators unlawful discretion (e.g., "as expeditiously as possible"), improperly allowed a 4-hour startup window, and the practices are too lax | EPA: Numeric limits infeasible in volatile startup/shutdown; 4-hour window based on best-performing analogous units; recordkeeping, plans, and monitoring constrain discretion | Court: Work-practice standards are permissible and not arbitrary; EPA reasonably balanced safety, data limits, and MACT consistency |
| Whether specific startup/shutdown content (fuel use, equipment engagement, exemptions) is arbitrary | Sierra Club: EPA exempted certain controls and allowed some dirty-fuel use during shutdown contrary to rule intent | EPA: Exemptions and conditional fuel rules reflect safety/technical necessity and narrow practical realities of shutdown | Court: EPA’s targeted exemptions and conditional fuel requirement are reasonable and accurately characterized; upheld |
Key Cases Cited
- United States Sugar Corp. v. EPA, 830 F.3d 579 (D.C. Cir. 2016) (addressed CO-as-surrogate and remanded related issues)
- Sierra Club v. EPA, 863 F.3d 834 (D.C. Cir. 2017) (discusses surrogate use and standards review)
- Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008) (invalidated contentless general-duty work-practice standard)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary-and-capricious standard for agency rulemaking)
- SEC v. Chenery Corp., 332 U.S. 194 (1947) (agency must rely on grounds it actually invoked)
- Nat’l Lime Ass’n v. EPA, 233 F.3d 625 (D.C. Cir. 2000) (support for surrogate regulation when correlation is reliable)
- Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544 (D.C. Cir. 2015) (MACT and technology-forcing analysis)