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); 40 C.F.R. Subpart F (§§ 61.60 - 61.71) (“the Part 61 NESHAP” or “the Part 61 standard”), because the EPA determined that the Part 61 NESH-AP were the most stringent controls in the industry.
Petitioners contend that EPA has failed to meet thе 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
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,
Section 112 of the CAA was amended in 1990 to include a congressionally established list of HAPs. 42 U.S.C. § 7412(b)(1). Vinyl chloride is included on that list. Id. The CAA directs the EPA to establish categories and subcategories of major sources that emit one or more of the enumerated HAPs. Id. § 7412(c). The statute further requires the EPA to issue technology-based emission standards, known as National Emission Standards for Hazardous Air Pollutants (“NESHAP”), for those sources. There are essentially two steps in this process.
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.” Id. § 7412(d)(3). For existing sources:
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 cаtegory or subcategory for categories with fewer than 30 sources.
Id.
Once floor standards are established, the EPA determines if standards more stringent than those actually achieved by the best performing sources are possible. These standards must
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[.]
Id. § 7412(d)(2). These are known as “beyond-the-floor” standards. In setting beyond-the-floor standards, the EPA is to “require the maximum degree of reduction
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.
Id. The EPA must balance these considerations with other factors such as cost, non-air-quality health and environmental concerns, and energy implications. Id. This technology-based regime replaced an earlier risk-based regime that required EPA to regulate at a level that provided an ample margin of safety to protect the public.
Additionally, section 112(d)(1) requires the EPA to set emission standards for every HAP emitted from each category or subcategory of major sources. Id. § 7412(d)(1); see also Nat’l Lime Ass’n v. EPA,
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 polymеrization. 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 alsо 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); 40 C.F.R. Subpart F (§§ 61.60 - 61.71) (“the Part 61 NESH-AP”). Pertinent to this case, under the Part 61 standard EPA regulated exhaust gasses from the reactors of polyvinyl chloride plants аt ten parts per million (“ppm”) averaged over a three-hour period. See, e.g., 40 C.F.R. § 61.64(a)(1). RVCM emissions were regulated at 2000 ppm per plant for PVC dispersion resins, excluding latex resins, 40 C.F.R. § 61.64(e)(l)(i), and 400 ppm per plant for all other PVC resins, averaged daily. Id. at § 61.64(e)(1)(h).
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. 42
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.
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 section 112 of the CAA. The EPA then declined to adopt beyond-the-floor measures, citing, inter alia, the possibility that certain PVC production would be prohibited if more stringent standards were adopted.
Additionally, the EPA determined that it was unnecessary to sеt separate individual emission standards for all other HAPs that result from PVC production, as required by section 112(d)(1), because it could simply use vinyl chloride as a surrogate for those other HAPs. This, according to the EPA, was because the stripping, scrubbing, incineration, or combination thereof, that is required under the Part 61 standard limits emission of all HAPs, not just vinyl chloride. Unsatisfied with these standards, petitioners have sought review of the Part 63 NESHAP here.
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. 42
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 flоor 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.
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.” 42 U.S.C. § 7607(d)(7)(B). We “strictly” enforce this requirement. Motor & Equip. Mfrs. Ass’n v. Nichols,
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 “Mise. Process Vents,” аnd 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 reasonаble specificity to the agency below.
We now turn to petitioners’ claim that EPA erred in failing to establish beyond-the-floor standards pursuant to CAA section 112(d)(2). 42 U.S.C. § 7412(d)(2). EPA again claims that this argument is waived. For their part, petitioners again point to the STAPPA and Louisiana letters as bringing the beyond-the-floor concerns to the attention of the EPA. In our view, both the STAPPA and Louisiana letters fail to raise the beyond-the-floor issue with reasonable specificity.
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 fаilure 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 requirе 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 “does not meet the MACT floor requirements of Section 112(d).” In closing the
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 limitаtion 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.
42 U.S.C. § 7412(d)(3)(B). Petitioners further point to Cement Kiln Recycling Coalition v. EPA, where we held that “EPA may not deviate from section 7412(d)(3)’s requirement that floors reflect what the best performers actually achieve.... ”
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.
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.”
In National Lime, we heard another challenge to EPA’s methodology, that time with respect to the statute presently before us, CAA section 112. Relying heavily on Sierra Club, we rejected a petitioner’s claim that textual differences in CAA sections 129 and 112 mandated a different analysis. National Lime,
In CKRC, we again reiterated our earlier position, enunciated in our Sierra Club and National Lime decisiоns, that EPA could use estimates if reasonable, but in a different context. There, EPA took the position that section 112 required it to set a standard that could be achieved by the worst performing plant that utilized MACT control technology. CKRC,
Most recently, in Northeast Maryland Waste Disposal Authority v. EPA, we rejected EPA’s efforts to use state permit limits as the MACT floor for pollutants from small municipal waste combustion units.
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 tо require a lower average limit.
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 CAA section 112(d)(1), establishes a “clear statutory obligation to set emission standards for each listed HAP” that the source catеgory emits. Nat’l Lime,
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 betwеen [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 ah* 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,
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
III. Conclusion
The petition is denied in part and granted in part. The Part 63 NESHAP is vacated and remanded to the agency for it to reconsider or properly explain its methodology for regulating HAPs emitted in PVC production other than vinyl chloride by use of a surrogate. All of petitioners’ remaining claims are either not properly before us, or are not meritorious.
Notes
. Petitioners also point to a sentence in the letter requesting the EPA to use "all readily available data, including the data provided under Subpart F." Petitioners' argument that, because Subpart F contains data for both the ten and 400 ppm standards, the EPA was on notice fails for the same reasons as articulated above.