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National Lime Ass'n v. EPA

ELR Citation: 31 ELR 20375
Nos. No. 99-1325, 233 F.3d 625/(D.C. Cir., 12/15/2000) HAP regs. for Portland cement

The court affirms in part and reverses in part the U.S. Environmental Protection Agency's (EPA's) hazardous air pollutant (HAP) emission regulations for Portland cement manufacturing. The regulations were challenged by an environmental group and an industry association. The court first dismisses the environmental group's petition to review the emissions floors that EPA set for particulate matter (PM) and dioxon/furan by using a technology-based approach. The group argued that Clean Air Act (CAA) §112(d)(3) requires EPA to set new source floors at the lowest recorded emission level for which it has data and existing source floors at the average of the lowest 12% of the recorded emission levels for which it has data. However, CAA §112 says only that standards must be based on the best performing sources. Following this directive, EPA set standards for PM and dioxon/furan at the average emission levels it estimated the best 12% achieve. In doing so, EPA did not limit itself to consideration of data from the best 12% of plants. Instead it used data it had from other plants that use the same technology as the best 12% to estimate the performance of the best 12%. The CAA does not unambiguously forbid this approach. Moreover, because the group's brief does not explain its argument that EPA's method of setting emission floors must reasonably estimate the performance of the relevant best performing plants, the court is precluded from reviewing the argument. The court next holds that EPA erred in failing to set emission standards for hydrogen chloride (HCL), mercury, and total hydrocarbons. EPA set emissions floors of no control for these HAPs because the Agency found no cement plants using control technologies for them. However, nothing in the statute even suggests that EPA may set emission levels only for these listed HAPs controlled with technology. The court also holds that EPA's refusal to set general beyond-the-floor emission standards for HAP metals violated the CAA. EPA failed to consider non-air quality health and environmental impacts of potential beyond-the-floor standards for HAP metals, and it relied on a factually incorrect assertion in rejecting such standards.

The court then holds that the industry association has standing to object to the portland cement rule. The association has at least one member that could have raised the same claims in its own rights, and those claims are germane to the organizational purpose of the association. The court next holds that EPA properly limited PM emissions from cement kilns as a surrogate to regulating emissions of HAP metals individually. EPA may use a surrogate to regulate HAPs if it is reasonable to do so. The CAA prohibition of adding any criteria pollutant, which PM is, to the list of HAPs does not prohibit EPA from using PM as a surrogate. The Portland cement rule does not treat PM as a HAP metal, the emissions of which determine whether a cement plant is a major source of emissions. The rule regulates only PM that is emitted from cement kilns. Moreover, because PM control technology indiscriminately captures HAP metals along with other particulates, it is a reasonable surrogate for metals even if the ratio of metals to PM is small and variable. In addition, the court holds that EPA was not required to consider material submitted outside the administrative record by the industry association in determining a method to be used by a cement kiln when it is attempting to establish it is not a major source of HCL emissions. However, the court holds that EPA failed to consider the association's properly submitted comments on the method to be used in testing cement kilns. Therefore, the matter is remanded to EPA so that it may respond to the association's comments.

Counsel for Petitioner
Hunter L. Prillaman
Morgan, Lewis & Bockius
1800 M St. NW, Washington DC 20036
(202) 467-7000

Counsel for Respondent
Daniel M. Flores
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Edwards, J.