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National Lime Ass'n v. EPA

Citation: 10 ELR 20366
No. No. 78-1385, 627 F.2d 416/14 ERC 1509/(D.C. Cir., 05/19/1980)

The court remands the new source performance standards (NSPS) for lime manufacturing plants issued by the Environmental Protection Agency (EPA) under § 111 of the Clean Air Act after finding inadequate support for them in the administrative record. The standards set numerical and opacity limitations on particulate emissions and identify baghouses, electrostatic precipitators, and scrubbers as the best control technology for rotary kilns, with only the latter being the best technology for lime hydrators. Section 111 specifically requires that the standards themselves be "achievable" and that the emissions control system, which the Agency considers able to meet it, be "adequately demonstrated." The court concludes on the basis of a cumulative assessment of industry objections that the record does not support the "achievability" of the NSPS for the lime industry as a whole. The primary deficiency is EPA's failure to consider whether the plants tested and the test conditions upon which it relied are truly representative of plants and operating conditions in the industry as a whole. The court acknowledges that the industry failed to respond to an Agency request for information regarding the representativeness of its data. This fact does not obviate the need for a remand, however, because EPA bears the burden of affirmatively showing that its standards reflect consideration of the range of relevant variables that may affect emissions in different plants. Emphasizing that it is applying a standard of review neither more rigorous nor more deferential than that applied in earlier NSPS cases, the court sets forth a number of specific doubts generated by its review of the record in light of the points raised by the industry. Finally, the court notes that it is for the Agency on remand to decide whether additional testing is appropriate to support the achievability of the standards.

Counsel for Petitioner
Henry W. Leeds
Mason, Fenwick & Lawrence
1730 Rhode Island Ave. NW, Washington DC 20036
(202) 293-2010

Counsel for Respondents
Earl Salo
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-0744

James W. Moorman, Ass't Attorney General; Angus Macbeth, Raymond W. Mushal
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2773

Before: TAMM and WALD, Circuit Judges; and GREENE*, United States District Judge for the District of Columbia.