MOSSVILLE ENVIRONMENTAL ACTION NOW AND SIERRA CLUB, PETITIONERS v. ENVIRONMENTAL PROTECTION AGENCY AND CHRISTINE TODD WHITMAN, ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENTS
No. 02-1282
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 9, 2003 Decided June 18, 2004
VINYL INSTITUTE, INC., INTERVENOR
On Petition for Review of an Order of the Environmental Protection Agency
James S. Pew argued the cause and filed the briefs for petitioners.
Brian H. Lynk, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief were G. Scott Williams, Attorney, and Andrew G. Gordon, Attorney, Environmental Protection Agency. Christopher S.
Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.
Before: SENTELLE, RANDOLPH and ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge: Petitioners Mossville Environmental Action Now and Sierra Club seek review of an Environmental Protection Agency (“EPA“) rule styled “National Emission Standards for Hazardous Air Pollutants for Polyvinyl Chloride and Copolymers Production.” 67 Fed. Reg. 45,886 (July 10, 2002) (“the Part 63 NESHAP“). This rule, adopted pursuant to section 112 of the Clean Air Act (“CAA“), set emission standards for PVC and Copolymer production facilities that mirrored EPA‘s previous rule, articulated at 41 Fed. Reg. 46,560 (Oct. 21, 1976);
Petitioners contend that EPA has failed to meet the requirements of the CAA in setting various limits for vinyl chloride emission. They further contend that EPA erred in failing to set emission limits for all of the other hazardous air pollutants (“HAPs“) emitted during PVC production. Two of petitioners’ arguments regarding vinyl chloride emissions limits have been waived, and we do not find meritorious their remaining challenges to those limits. We do, however, hold that EPA has failed properly to set emissions limits on other HAPs, as required by the CAA. The petition is therefore granted in part and denied in part.
I. Background
A. Statutory Background
This is the latest in a series of challenges to rulemakings establishing emission standards for HAPs in various industries under the 1990 revisions to the CAA. See, e.g., Northeast Md. Waste Disposal Auth. v. EPA, 358 F.3d 936 (D.C. Cir. 2004) (per curiam)
Section 112 of the CAA was amended in 1990 to include a congressionally established list of HAPs.
The CAA establishes a minimum required reduction-known as the maximum achievable control technology floor (“MACT floor“). The MACT floor for new sources “shall not be less stringent than the emission control that is achieved in practice by the best controlled similar source, as determined by the Administrator.”
Emission standards . . . may be less stringent than standards for new sources in the same category or subcategory but shall not be less stringent, and may be more stringent than -
(B) the average emission limitation achieved by the best performing 5 sources (for which the Administrator has or could reasonably obtain emissions information) in the category or subcategory for categories with fewer than 30 sources.
Once floor standards are established, the EPA determines if standards more stringent than those actually achieved by
require the maximum degree of reduction in emissions of the hazardous air pollutants subject to this section (including a prohibition on such emissions, where achievable) that the Administrator, taking into consideration the cost of achieving such emission reduction, and any non-air quality health and environmental impacts and energy requirements, determines is achievable for new or existing sources in the category or subcategory to which such emission standard applies[.]
through application of measures, processes, methods, systems or techniques including, but not limited to, measures which -
(A) reduce the volume of, or eliminate emissions of, such pollutants through process changes, substitution of materials or other modifications,
(B) enclose systems or processes to eliminate emissions,
(C) collect, capture or treat such pollutants when released from a process, stack, storage or fugitive emissions point,
(D) are design, equipment, work practice, or operational standards (including requirements for operator training or certification) as provided in subsection (h) of this section, or
(E) are a combination of the above.
Additionally,
B. Regulatory Background
Vinyl chloride, a gas that is highly toxic and a known human carcinogen, is the starting point for PVC and copolymer production. It is first pressurized and agitated in a reactor, resulting in polymerization. Once polymerized, vinyl chloride can be transformed into many diverse products, from latex paints to PVC piping. Vinyl chloride can enter the atmosphere in several ways during PVC production. The gas can escape to the atmosphere when equipment is opened for routine maintenance, either through leaks in the production system, or by being present in such low concentrations that it escapes through recovery systems in exhaust streams. This form of pollution is often referred to as “stack emissions” or “exhaust gasses.” There is also some residual vinyl chloride in the PVC itself, know as residual vinyl chloride monomer (“RVCM“). RVCM is removed from the PVC through a process known as stripping. Stripping results in vinyl chloride emissions as well. Those emissions are often referred to as “process equipment emissions” or “RVCM emissions.”
In 1976, prior to the 1990 implementation of technology-based standards, the EPA promulgated emission standards for vinyl chloride under the risk-based standard then in effect. 41 Fed. Reg. 46,560 (Oct. 21, 1976);
When Congress amended the CAA in 1990, it required the EPA within ten years to review its emission standards to ensure compliance with the amended CAA.
To set the Part 63 standards, the EPA first determined that twenty-eight sources in the United States produce PVC and all are subject to the Part 61 NESHAP. 65 Fed. Reg. at 76,962/1. The EPA then considered state emission requirements and determined that the Part 61 NESHAP requirements, not state requirements, had the greatest influence on emission controls. The EPA further determined that no better technology was available than the Part 61 standard already required. Looking specifically at RVCM emission from PVC resins, the EPA recognized that while some states had more stringent standards in place, those standards were based on quarterly averages, while the Part 61 standard was based on daily limits. Id. The EPA found that comparing these standards was difficult because of the different measuring periods. In addition, the EPA found that the amount of RVCM emission is primarily dependent on what type of PVC resins each plant manufactures. There is thus a wide variation of RVCM emission during normal operation, and EPA found that the daily limits ensure that operators keep average RVCM emission low so that the spikes do not cause the
In sum, the EPA concluded that the Part 61 NESHAP satisfied all of the requirements set forth in the 1990 amendments, and adopted almost all of the old Part 61 NESHAP standards as the new Part 63 NESHAP standards. Thus, the Part 61 standards became the “floor” for existing sources pursuant to
Additionally, the EPA determined that it was unnecessary to set separate individual emission standards for all other HAPs that result from PVC production, as required by
II. Analysis
This Court sets aside final EPA action under the CAA if that action is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
A. Waiver
We first deal with whether certain of petitioners’ claims are properly before us. The EPA contends that two of petitioners’ challenges - that EPA erred in setting the floor for exhaust gasses and erred in failing to establish beyond-the-floor standards - were waived as they were not properly raised before the agency below. We turn first to EPA‘s establishment of a floor for exhaust gasses.
In its rulemaking, the EPA determined that no more stringent limits applied to vinyl chloride exhaust gas streams than the ten ppm limit in the Part 61 NESHAP, and established that limit as the floor. 65 Fed. Reg. at 76,962/2. Petitioners claim that their concerns regarding this issue were sufficiently raised in two letters submitted to the EPA by parties not involved in this case. The question is whether these letters were sufficiently specific to raise the issue before the EPA.
The first is a February 8, 2001 letter from the State and Territorial Air Pollution Programs Administrators (“STAPPA“) and the Association of Local Air Pollution Control Officials (“ALAPCO“) to the EPA (“STAPPA Letter“). That letter addresses different aspects of the rule, but with respect to the setting of MACT floors it specifically addresses the 400 ppm standard for “residual vinyl chloride in the PVC slurry.” Indeed, it mentions the 400 ppm standard, which applies to RVCM emissions, four times in the six paragraphs that address the MACT floor. It does not, however, ever mention the ten ppm standard that applies to exhaust emissions. Nor do those paragraphs ever mention “gasses” or “exhaust.” The letter thus did not specifically challenge the ten ppm exhaust gas limit.
In an effort to avoid the lack of a specific challenge, petitioners argue that nothing in the letter directly limits the fact that “their objection is a general one to EPA‘s floor approach.” This will not do. “Only an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review.”
The second letter that petitioners claim raised the issue is dated February 12, 2001 and is from the State of Louisiana to the EPA (“the Louisiana Letter“). This two-page letter also does not mention the ten ppm standard, but again directly addresses RVCM emissions. It does, however, have an attached table, which the letter claims proves that state limits are more stringent than the Part 61 standards. One of the eight columns in the table is labeled “Misc. Process Vents,” and includes data that could be exhaust limits. Again, and for the reasons stated above, this does not meet the standard of reasonable specificity. The letter does not directly address the ten ppm standard, and attaching a table that cryptically refers to miscellaneous process vents does not automatically put the EPA on notice of a challenge to every piece of information contained in the table. In sum, petitioners’ challenge to the floor on exhaust gasses is waived because it was not raised with reasonable specificity to the agency below.
The Louisiana letter consists of four numbered paragraphs. The first paragraph, by its own language, addresses the “MACT Floor.” The fourth deals with EPA‘s failure to regulate other HAPs. The second and third paragraph present petitioners’ best argument that Louisiana raised the issue, but they are simply not specific enough. The second paragraph states that Louisiana permits are “more stringent than the currently proposed MACT requirements.” The third paragraph describes the Part 61 standard as “old,” and asserts that better technology is available. While these two paragraphs could imply not only a challenge to the setting of the MACT floor, but also a challenge to EPA‘s failure to set beyond-the-floor standards, that is all it does - potentially imply a challenge. There is no mention of beyond-the-floor standards.
It is just not clear that the State of Louisiana, in a letter that contained specific and clear challenges to the setting of the RVCM MACT floor, was also challenging the beyond-the-floor standards. While petitioners may argue that it is obvious that if one challenges the floor, one is also implicitly challenging the failure to set beyond-the-floor standards, that is not the way the regulatory system is structured. Such a standard would require agencies to review perpetually all of the “implied” challenges in any challenge they receive. We will not impose such a burden on the agency. All that Louisiana had to do was draft one sentence that specifically challenged EPA‘s decision. It did not, and that specific challenge is thus not preserved.
The same is true of the STAPPA letter. It specifically addresses STAPPA‘s concern that EPA‘s proposed standard
B. The RVCM Floor
Petitioners also contend that the EPA violated its statutory duty by failing to identify the five best performing PVC plants in setting the RVCM floor. Indeed, the EPA readily admits that it did not identify the best five performing plants, even though the CAA specifically requires the EPA to set floors that
shall not be less stringent, and may be more stringent than -
(B) the average emission limitation achieved by the best performing 5 sources (for which the Administrator has or could reasonably obtain emissions information) in the category or subcategory for categories with fewer than 30 sources.
The EPA argues that in this case, determining the best five sources was impossible. This is because of the great variability in RVCM emissions, and the fact that that variability is a result of the type of resin being produced, not the technology or processes applied to control emission. 67 Fed. Reg. at 45,889/2-3. According to the EPA, there can even be great variability in RVCM emission at the same PVC plant, which would obviously employ the same technology and processes on a day-to-day basis, if that plant produces a variety of resins, which most do. Id. at 45,887/2. With comparisons between plants impossible, and emission variations not related to technological performance, the EPA claims it was unable to select the best five sources. Therefore, after considering other alternatives, it determined that since all twenty-eight PVC plants were subject to the Part 61 NESHAP, those standards estimated the best five performing sources.
In testing the EPA‘s reliance on the Part 61 NESHAP, we look to our earlier in-depth treatment of this and similar provisions of the CAA. In Sierra Club v. EPA, the Sierra Club challenged the EPA‘s methodology when it “ranked . . . incinerators by the stringency of the control provisions to which they were subject” and then “selected the 12 percent of the incinerator population subject to the strictest controls and set the floor . . . by averaging the emissions limitations governing those incinerators.” 167 F.3d at 661. Sierra Club challenged the use of regulatory data for determining floors because the statute in that case required, almost exactly as the statute presently before us required, that “[e]missions standards . . . shall not be less stringent than the average emissions limitation achieved by the best performing 12 percent of units in the category.”
In National Lime, we heard another challenge to EPA‘s methodology, that time with respect to the statute presently before us,
In CKRC, we again reiterated our earlier position, enunciated in our Sierra Club and National Lime decisions, that EPA could use estimates if reasonable, but in a different context. There, EPA took the position that
Most recently, in Northeast Maryland Waste Disposal Authority v. EPA, we rejected EPA‘s efforts to use state
Turning to the present case, EPA again cites the variability of emission, which EPA claims makes the lower state limits inappropriate. This, EPA explained, is because the state permit levels are tailored to the specific products at each plant, and typically use a longer averaging time in order to require a lower average limit. More importantly, however, instead of simply claiming that it believes its Part 61 standards estimate what the best five plants actually achieve, EPA points to some evidence. In its response to comments, EPA cited its analysis of three years of data, and showed that even “the facility that had the lowest overall long term RVCM experienced significant variation in daily averages including one daily (three hour) average of 397 ppm.” EPA Response to Comments at 6, April 2002. Thus, the 400 ppm daily standard contained in the Part 61 standard is just barely satisfied by the plant with the lowest overall long term RVCM. EPA has thus pointed to factual data that the Part 61 standard reasonably estimates the performance of the top performers, because even the best performing sources occasionally have spikes, and under the standard, each facility must meet the 400 ppm standard every day and under all operating conditions. The EPA has met it burden of establishing that its standards reasonably estimate the performance of the best five performing sources. Having cited the great variability of emission levels, even within the same plants, and the inherent difficulty in other standards it considered, the EPA‘s selection of the Part 61 standards as the MACT floor is reasonable because it has supported its deci-
C. Use of Vinyl Chloride as a Surrogate
Petitioners also challenge the EPA‘s failure to establish emission standards for every HAP that PVC plants emit. We have held that this requirement, spelled out in
For its part, EPA contends that it simply utilized vinyl chloride as a surrogate for the other HAPs. EPA makes several attempts to defend this effort, none of which can save it. First, in EPA‘s view, National Lime merely requires “that there [be] a correlation between [the surrogate and the other HAPs]; it need not quantify that correlation or assess its variability.” Id. at 639. In EPA‘s own words, “if [it] can demonstrate that the necessary correlation exists, the agency may use a surrogate and avoid full-blown application of Section 112 for each hazardous air pollutant emitted from an industry.” EPA‘s problem is that, assuming, without deciding, this is all that is required, it completely failed to do so.
We have clearly held that “EPA may use a surrogate to regulate hazardous pollutants if it is reasonable to do so.” Nat‘l Lime, 233 F.3d at 637. In assessing the reasonableness of EPA‘s use of a surrogate in that case, we held that because EPA had demonstrated that there are always HAP metals in particulate matter (the surrogate), and thus that the removal of the particulate matter removed the HAP metals, EPA had satisfied its burden. Id. at 639; see also Sierra Club v. EPA, 353 F.3d 976 (D.C. Cir. 2004). The EPA found no such correlation here.
The EPA asserts that it “is aware of no statutory or regulatory provision or any case law imposing” the requirement that “EPA must identify each and every pollutant controlled through a surrogate under Section 112(d).” The EPA reads the requirement that it establish a correlation between the surrogate and the HAP it is attempting to regulate as not requiring identification of the HAP it is attempting to regulate. To clarify EPA‘s position, it contends that “[p]rovided EPA reasonably determined . . . a link existed between vinyl chloride controls and other hazardous air pollutants, it should make no difference whether EPA has identified each of the other hazardous air pollutants emitted by the industry.” While EPA may be able to know that a correlation exists between one known pollutant and some other unknown pollutants, it has not memorialized that knowledge in such a fashion that commenters, interested members of the public, regulated entities, or most importantly, a reviewing court, can assess. We cannot review under any standard the adequacy of the EPA‘s correlation determination if we do not know what correlation the EPA found to exist. The closest the EPA comes to supplying record support for its determination is a reference to tables included in the administrative record showing what other hazardous air pollutants were emitted by various plants at various locations. These charts take up several pages of the joint appendix, and we have no way of knowing what EPA‘s claims are as to which of the HAPs are represented by surrogacy or to what degree. In short, we do not find EPA‘s explanation persuasive, and hold that its determination that vinyl chloride is a surrogate for all other HAPs emitted from PVC production facilities is arbitrary and capricious and not supported in the record. Therefore, EPA‘s use of vinyl chloride as a surrogate for other HAPs emitted from PVC plants is remanded to the agency for more a adequate explanation.
III. Conclusion
The petition is denied in part and granted in part. The Part 63 NESHAP is vacated and remanded to the agency for