The Trial of Hazardous Air Pollution Regulation

Phillip D. Reed

Editors' Summary: The Environmental Protection Agency (EPA) has long been embroiled in controversy over its regulation of hazardous air pollutants under § 112 of the Clean Air Act. The Act requires rapid, stringent regulation of pollutants EPA lists as hazardous, but leaves it to EPA to decide what to list. In the 16 years since § 112's enactment, EPA has listed only a handful of pollutants and been slow to regulate those it has listed. The Act encourages caution in listing pollutants, since it can be read to require protection of public health at all costs and regulation must follow listing. Environmentalists have fought for expansive listing of likely carcinogens and other dangerous chemicals in exchange for accepting best available technology standards instead of zero risk standards. They have been unsuccessful in administrative proceedings and Congress alike. Now they are in court, attacking a new EPA approach that expands the coverage of § 112, but regulates only significant risks that can be controlled with technological ease and little economic disruption. The litigation could chart the future of § 112 and is a major test of the risk assessment policies adopted with great fanfare by former EPA Administrator William Ruckelshaus.

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In the absence of congressional action on long overdue Clean Air Act¹ Amendments,² environmentalists and the Environmental Protection Agency (EPA) are trying to rewrite the Act's hazardous air pollutant provisions in court. The current battle was presaged by a round of litigation in which environmentalist and state plaintiffs successfully sued EPA to force promulgation of § 112³ national emission standards for hazardous air pollutants (NESHAPs) for substances the agency earlier had listed as hazardous. Forced by these decisions to regulate pollution problems it did not believe serious, but also facing growing public concern over toxic emissions to the atmosphere, the agency developed a new approach for evaluating and regulating hazardous air pollutants. But EPA's new regulatory strategy, which extends the period for preliminary analysis and softens the harsh requirements apparent on the face of § 112 with risk assessment and analysis of economic impacts and technological feasibility, goes beyond the limited implementation compromises acceptable to environmentalist and state litigants. They went back to court. The United States Court of Appeals for the District of Columbia Circuit is preparing to hear arguments in three suits challenging EPA's new standard-setting approach. At the same time, environmentalists and EPA also are squaring off in the District Court for the District of Columbia over EPA's process for screening toxic air pollutants.

The current litigation goesto the core of the § 112 program. It places EPA between environmentalists and one state on the one side and industry groups on the other. Environmentalists argue that the Act expressly directs EPA to set NESHAPs that protect public health with a margin of safety regardless of cost. Industry petitioners counter that the Act requires EPA to protect only against significant risks, which, they argue, are not posed by the pollutants at issue. The decisions will determine the shape of the hazardous air pollution program at least until Congress finally passes the next round of amendments, and might provide the blueprint for eventual congressional action.

The Statutory Framework

When it drafted the 1970 Clean Air Act Amendments, Congress empowered EPA to be very tough on pollution that may be deadly to people, but is not emitted by numerous sources or present in the air over large areas of the country. Section 112 defines "hazardous air pollutant," directs EPA to make and update a list of hazardous pollutants that it intends to regulate and then, on a short time-table, to set NESHAPs that protect public health. This two-stage regulatory process seems orderly and rational, but is internally flawed. Section 112 also discusses the implementation and enforcement of NESHAPs,⁴ but it is the [16 ELR 10067] process by which EPA arrives at standards that has been the center of controversy.

The Definition

Hazardous air pollutants are those that pose a localized risk of severe harm to human health. Section 112(a) defines as hazardous, air pollutants other than criteria pollutants⁵ that "in the judgment of the Administrator cause] [ or contribute] [ to, air pollution that may reasonably be anticipated to result in an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness."⁶ Under this language, risk of harm is sufficient to render a pollutant hazardous; certainty of harm is not required. It does appear that the threat must be real; that is, there must be an exposed population. Otherwise, there would be no risk of increased mortality. The harm at risk must be serious, that is, death or grave illness, but the language does not indicate that the population at risk must be large. Determining whether these conditions are met is committed to the judgment of the EPA Administrator.

Listing

The first step in regulating hazardous air pollutants is listing. Section 112 (b)(1)(A) directs the Administrator to make and subsequently, "from time to time," revise "a list which includes each hazardous air pollutant for which he intends to establish an emission standard under this section."⁷ This passage appears to leave the Administrator discretion in deciding what to list. It does not say to list all pollutants believed hazardous, but only those he intends to regulate. In 1977 Congress nudged the agency to expand its listing efforts. A new § 122 required EPA to evaluate the health effects of airborne radionuclides, cadmium, arsenic, and polycyclic organic matter within fixed periods of time and, upon finding harmful impacts, to list the pollutants as hazardous or criteria pollutants, as appropriate.⁸

Regulatory Timetable

Once EPA has listed a pollutant as hazardous, it must regulate at top speed. The agency must propose "emission standards" for listed pollutants within 180 days of listing. Final standards are due within another 180 days unless EPA "finds, on the basis of information presented" at hearings on the proposed standards, that the pollutant "clearly is not" hazardous.⁹ Congress either did not think regulation of hazardous air pollutants required lengthy deliberation or it expected EPA to make basic regulatory choices before listing.

Standard-Setting Criteria

Section 112 specifies only two reference points for those writing NESHAPs. They must be emission or work practice standards and they must protect public health with an ample margin or safety. Initially, Congress required NESHAPs to be "emission standards," which must limit "the quantity, rate, or concentration of emissions of air pollutants on a continuous basis."¹⁰ In 1977 Congress amended § 112 to allow EPA to set work practice standards, which are stated in terms of how the polluting activity is conducted, not how much pollution enters the ambient air, if EPA found emission standards impractical.¹¹ Whatever their nature, the standards must protect public health with "an ample margin of safety."¹² In contrast to the other national stationary source emission standards prescribed by the Act, the § 111 new source performance standards,¹³ § 112 does not direct EPA to consider economic or technological feasibility in setting the standards.¹⁴ In this regard, § 112 is more akin to § 109, which governs national ambient air quality standards.¹⁵

Implementation History

Section 112 has seen limited use, but plenty of controversy. Disputes have raged over the application of "emission standard" and over the scope of EPA's listing and standard-setting efforts. In fact, § 112 has proven so difficult to implement that some have written it off as unworkable.

The first problem to arise in carrying out the mandate of § 112 was in fashioning emission limits for some hazardous pollutants. One of the first standards set was for vinyl chloride, but since emissions of that chemical often result from leaks or other "fugitive" sources that are impossible [16 ELR 10068] to measure, EPA did not set a quantitative emission limitation. In 1976, the Supreme Court overturned EPA's standards as illegal work practice standards,¹⁶ prompting Congress to expressly authorize standards on work practices in 1977. The amendment has not eliminated litigation over this issue, since standards promulgated before the 1977 amendments must be emission limitations.¹⁷

The work-practice-standard controversy has been a side show compared to the debate over EPA's failure to list more than a handful of hazardous pollutants and not to regulate all those on the list. Section 112 can be read to require EPA to impose draconian controls to completely eliminate the risks whenever EPA concludes that an air pollutant may be hazardous at any level of emission.¹⁸ Concern over the severity of the regulatory requirements, and the belief that greater public health gains were to be won through attainment of the NAAQS, discouraged EPA from pulling the § 112 listing trigger very often.¹⁹

The NESHAPs program was a low priority at EPA throughout most of the 1970s. During the Carter Administration, pressure from environmental and public health groups pushed EPA slowly and painfully to the point of proposing and airborne carcinogen policy. The policy would have greatly expanded the scope of § 112 regulation, but also would have incorporated technological and economic concerns into standard setting.²⁰ The proposal called for expansive listing of carcinogens emitted to the atmosphere using risk assessment techniques, but eachewed zero-risk controls, requiring instead the installation of best available technology, augmented by "good housekeeping" measures to minimize risk. The proposal evoked intense opposition from industry²¹ and the Carter Administration delayed action. By 1980, EPA had listed only seven pollutants: asbestos (1971), benzene (1977), beryllium (1971), inorganic arsenic (1980), mercury (1971), radionuclides (1979), and vinyl chloride (1975) and regulated only four: asbestos, beryllium, mercury, and vinyl chloride. In addition, proposed revisions tightening the vinyl chloride standard had been pending since 1977.

The Reagan Administration allowed the air carcinogen proposal to die and did not show much interest in regulating the remaining substances on the § 112 list.²² Frustrated with EPA and congressional inaction, environmentalists and one state went to court to breathe life into § 112. They sued EPA over its failure to carry out a nondiscretionary duty to regulate the listed pollutants arsenic and radionuclides on schedule. Plaintiffs were successful in these deadline suits, although it took all the power of the judiciary to force EPA to complete the regulatory process for radionuclides.²³ By 1984 EPA had proposed standards for radionuclides, benzene, and arsenic. EPA's subsequent regulatory action proved no less controversial than its earlier inaction, however.

Recent Developments: The Rewriting of Section 112

In the last few years EPA not only has acceded to court orders to regulate listed hazardous air pollutants, it has become less reluctant to list additional pollutants, but it also has become more daring in its interpretation of the statute. The agency has incorporated controversial risk assessment techniques and cost/benefit balancing into the process.²⁴ The process works something like this: once the agency concludes that an air pollutant may be toxic, it studies the sources of the pollutant to determine the magnitude of the risk. If the risk posed by a pollutant or by emissions from a category of sources is not "significant," regulation is not proposed for the pollutant or category. For those pollutants and source categories deemed worthy of control, the agency identifies the level of control achievable with the "best available technology," determined with reference to the cost and feasibility of control options. The agency then considers whether the health costs attributable to any residual emissions warrant a more stringent level of control, given the added costs of those controls.

The result of this new approach was that EPA had greater flexibility in deciding whether and how to regulate pollutants acknowledged to be potentially hazardous. The agency applied this analysis to the proposed benzene and radionuclide standards and the long-dormant vinyl chloride revisions and decided to cut them back dramatically.²⁵ It also completed a preliminary review of over a dozen other chemicals.

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During the last 12 months EPA has announced decisions on whether to regulate over a dozen substances, and seems to be moving in the direction of cautiously expanded regulation under § 112.²⁶ The agency announced its intention to list six additional substances in the last year.²⁷ By starting with a notice of its intention to list, rather than listing, EPA expects to avoid the post-listing deadlines, buying extra time to study the sources, receptors, and impacts of the pollution. On the other side of the ledger, in 1985 EPA ruled out listing eight substances.²⁸

The agency took a middle road with acrylonitrile, concluding that emissions of the chemical pose a health threat, but one so limited and localized as to justify leaving the matter to state and local agencies. EPA announced a pilot project in which it would engotiate with 14 state and local air pollution control agencies, within whose jurisdiction significant sources of acrylonitrile are found, to identify approaches for assessing and responding to the pollution threats.²⁹ EPA proposed this approach for adoption as a general policy for other localized air toxics problems later in the year, but the states have not welcomed the added regulatory opportunity.³⁰

The flurry of EPA regulatory activity is set against the backdrop of exploding public concern over toxics in the air. The tragic release of a toxic air pollutant at Bhopal, India, and the subsequent release of a toxic air pollutant from the same process at Institute, West Virginia,³¹ focused added attention on EPA's toxic air pollution program, even though the program is not intended or designed to address accidental releases.³² Motivated in part by Bhopal and in part by concern over EPA's incomplete regulation of air toxics, many states have developed their own programs in the last few years.³³ The state activity, along with the recent attention to accidental releases, signal the depth of concern over air toxics, concern that will energize the pending litigation over EPA's implementation of § 112.

Current Litigation

The basic decisionmaking approach underlying the flurry of recent NESHAPs activity is at issue in one district court and three court of appeals cases now pending in the federal courts of the District of Columbia. These cases squarely address the legality of EPA's more active, but less stringent air toxics program.³⁴

The District Court Case

In Natural Resources Defense Council, Inc. v. Thomas,³⁵ NRDC challenges EPA's new policy of announcing its intention to list substances it believes hazardous rather than immediately listing them. This step gives the agency more time to obtain and review public comment before it must promulgate rules. NRDC claims that the practice violates a nondiscretionary duty to list air pollutants the agency believes are hazardous within the terms of § 112. Since Federal Register notices for hexavalent chromium, acrylonitrile, carbontetrachloride, chloroform, ethylene oxide, 1,3 butadiene, cadmium, and ethylene dichloride³⁶ stated the agency's belief that each of these substances is a known to probable human carcinogen, NRDC argues, EPA has no choice but to list them immediately. EPA has stated that it will take two years after promulgation of a notice of intent to list to decide whether to list.³⁷ As a practical matter there is no enforceable deadline for action under this scheme and one of the primary objectives of environmentalists has been to force the pace of listing. The statute does not offer them strong support; it directs EPA to list those pollutants that it intends to regulate, not those it has reason to believe are hazardous.³⁸ On the other hand, Congress did not intend § 112 to be left idle and the suit will bring added pressure to bear on EPA to justify its listing process.³⁹

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Court of Appeals Cases

Three cases now pending in the D.C. Circuit squarely address the legality of EPA's significant-risk, cost-sensitive approach to regulating hazardous air pollutants. The cases arise from different EPA actions on the benzene, radionuclides, and vinyl chloride NESHAPs and each presents unique issues, but all challenge the basic components of the EPA program.⁴⁰ The key questions are whether the Act allows EPA to decide to regulate only "significant risks" under § 112 and whether the agency may take cost and technological feasibility into account in deciding whether to regulate and what standards to impose. The cases also raise a number of issues about the procedures followed by EPA in the individual rulemakings, what are emission limits and when may EPA substitute work practices for them, and whether certain standards were reasonable.⁴¹ Though the posture of the issues varies from case to case, the basic questions are fully presented in the radionuclides litigation.

The essence of the dispute can be seen in passages from the government's and environmentalists' briefs. The government asserts:

Congress in Section 112 of the Clean Air Act established a program to set standards for hazardous air pollutants. In so doing, however, Congress did not require the Administrator to regulate all risks, even insignificant ones, nor to issue standards that are unnecessary because current emission levels protect public health with an ample margin of safety. In deciding what level of emissions provides an ample margin or safety, the Administrator has concluded that, although he must give primary consideration to protection of health, he may also weigh such factors as the existence of other regulatory regimes that provide adequate protection, and the costs and feasibility of control technology. This interpretation is reasonable, consistent with the language of the Clean Air Act, and thus merits this Court's deference. More than that, it is supported by the CAA's legislative history, and by decisions of the Supreme Court and of this Court.⁴²

The environmentalists' position may be summarized more succinctly in the following passage:

This case presents the question whether the Administrator of the Environmental Protection Agency (EPA) may, in his own words, 'torture th[e] language' of § 112 of the Clean Air Act in order to pursue a policy for controlling hazardous air pollutants that he prefers to the policy adopted by Congress.⁴³

Significant Risk

In the radionuclides case, EPA decided not to regulate several source categories, or to set standards so loose as not to require adoption of any control measures, because EPA deemed the risks insignificant. EPA considered three variables in its significance test, aggregate risk, risk to the most highly exposed population, both stated in terms of likelihood of contracting fatal cancer, and the cost of control. For one source category, EPA estimated that the likely [16 ELR 10071] rate of fatal cancers among those most exposed to the emissions was too small, one in a million,⁴⁴ even though the exposure was large enough to result in an aggregate of two cancer deaths per year.⁴⁵ For another industry, the rate of likely fatal cancers was higher, one in a thousand, but EPA deemed the risk insignificant because so few people were exposed that no more than one cancer death every 13 years was likely.⁴⁶ In both instances, EAP considered the very high cost of controlling emissions from the industry in concluding that the risk was insignificant.⁴⁷

These judgments on significant risk are rather arbitrary. There are no statutory standards, and the science of risk assessment itself is too new to offer more than comparisons of different levels of risk from different activities as a basis for judging what is significant. Environmentalists oppose this reliance on relative risk estimates, arguing that the statute requires absolute protection.

In Environmental Defense Fund v. Thomas⁴⁸ environmentalists argue that EPA may not ignore source categories whose emissions of listed hazardous air pollutants are likely to be lethal to anyone. They read "protect the public health with an ample margin of safety" to mean something akin to "make extra sure that no one will be killed or stricken with a grave illness." They search the statute and legislative history om vain for any indication that EPA may regulate only significant risks.⁴⁹ "Safety" connotes the absence of risk, not a situation in which a small number of people face death, they argue, referring to the D.C. Circuit's interpretation of parallel language in § 109(b)(1) on air quality standards.⁵⁰ EPA must regulate risks to the population in the aggregate as well as to sensitive populations — in this case those living near the sources of NESHAPs. Petitioners also argue that EPA's risk estimates are too low, because they look only at cancer deaths, not at serious illness, and because EPA has more recent data suggesting that the death rates may be higher.⁵¹ The environmentalists do not argue that EPA must eliminate all risks, but insist that it must minimize measurable risks within some undefined bounds of reasonableness.⁵²

The government tries to parry the environmentalists' thrust with the argument that regulating all risks, whether or not significant, would make the statute impossible to implement, an absurd result Congress could not have intended. The EPA brief does present arguments based on the language and sense of § 112.⁵³ It contends § 112 gives A broad discretion to find workable regulatory schemes; for example that the government argues that "ample margin of safety" is so general a term that Congress must have intended to leave its application to EPA's discretion.⁵⁴ The government points to legislative history and case law indicating the Congress intended the Administrator to be able to exercise judgment in regulating health-threatening pollutants under severl other Clean Air Act sections.⁵⁵ EPA cites the Supreme Court decision in Industrial Union Department, APL-CIO v. American Petroleum Institute for the proposition that "safe" can mean the absence of a significant risk of harm.⁵⁶ Capping the government's analysis is the argument that environmentalists' reading would produce absurd results. Since dozens of source categories emit radionuclides, EPA would have to regulate them all, and to control them to the zero-risk point. Such regulation would produce massive dislocation while saving few if any lives, a result that Congress could not have intended.⁵⁷

The environmentalists' legal arguments are stronger than those of the government, but have one flaw. Their analysis of the statutory language, legislative history, and case law is much more convincing than the government's. The language of § 112 does strongly suggest a "health-only" standard. Courts have read similar provisions literally. Some of the government's reasoning is internally flawed. To read into court decisions that extend protection beyond the bounds of scientific certainty, discretion to ignore people EPA believes are at risk is a neat exercise in mental gymnastics, but is self-contradictory. If the purpose of the statute is to protect health, discretion to overprotect does not logically imply discretion to underprotect. The problem with the environmentalists' position is that it gives the court no obvious legal basis for avoiding the absolute of total, zero-risk regulation. If, as they argue, there is not even an implied de minimis exception, there is no way of stopping the scope of the regulatory scheme short of the absurd. When it comes down to the specifics of the standards, the changes discussed by environmentalist petitioners are not extreme,⁵⁸ but they offer no legal formula for showing EPA how to get to that point in general.

Cost and Technological Feasibility

The second major issue is whether EPA may consider the cost and technological feasibility of controls in deciding whether to regulate source categories and what standards to impose. Environmentalist petitioners argue that since the statute tells EPA to base standards on public health criteria and does not mention cost or feasibility, the agency is precluded from considering anything but health impacts. They cite cases in which the Supreme Court and D.C. Circuit have held that similar provisions, § 109 of the Clean Air Act and § 307 of the Federal Water Pollution Control Act⁵⁹, bar consideration of cost and feasibility. The [16 ELR 10072] legislative history of the Senate bill that became § 112, indicates that Congress meant to exclude consideration of costs.⁶⁰ Under these circumstances, EPA violated basic principles of administrative law by considering factors outside the statute.⁶¹ They argue that where the statute is this clear, the courts have no obligation to defer to the agency's interpretation of the law.⁶²

The government's counterarguments rely heavily on its discretion to interpret the statutes it must implement. It contends that inherent in the discretion to determine how much risk to allow is the discretion to consider the costs of control.⁶³ Because the statutory language leaves it to the "Administrator's judgment how to regulate," the Act allows consideration of costs.⁶⁴ The government points to passages in the legislative history suggesting that Congress recognized that only feasible controls could be imposed and contends that the House version of the provision, which explicitly required consideration of cost and feasibility, was given implicit effect in the provision adopted by the conference committee.⁶⁵ Although the Senate report states that the standards might be set at zero emissions or require closure of emitting facilities, this does not mean that zero emissions or closure is required in all cases.⁶⁶ The brief goes on to argue that EPA has considered cost and feasibility in every NESHAP, starting in 1971, and that Congress was aware of this when it amended the Act in 1977, but left the provision intact.⁶⁷ It distinguishes the cases cited by petitioners, pointing out that in all instances courts upheld EPA judgments about the proper place for cost and feasibility analysis.⁶⁸ The courts refused to consider cost only where the statute listed specific factors to be considered⁶⁹ or concerned standards to be implemented in a later process in which costs and feasibility could be considered.⁷⁰ Finally, the government concludes that even if these cases were right when decided, the Supreme Court decreed expanded deference to agency interpretation of law in Chevron, U.S.A., Inc. v. Natural Resource Defense Council, Inc.⁷¹

Environmentalists' arguments on cost and feasibility are legally more persuasive than the government's, but do not explain how to avoid the irrational result of paying no attention whatsoever to the practical question of feasibility. The environmentalists' position is more consistent with statutory language, legislative history, and established case law.⁷² However, it also seems to push the agency to the extreme of shutting down industries to save at most a handful of lives over a period of decades. It was in part to avoid this dilemma that EPA left § 112 on the shelf in the first place; petitoners seem to be inviting the agency to put it back on the shelf. As a practical matter, petitioners do not argue for zero-emission standards, but only that EPA push industry harder by requiring additional controls on several source categories where there evidence that such controls are feasible. By implication, they would allow the agency to draw the line somewhere short of general shutdown, but they offer no concise legal basis for saying where. Perhaps their strategy is to win a remand that will require the agency to reopen the standards, giving the environmentalists a stronger voice in the decisions over where to draw the line in the individual standards.

Conclusion

The four cases now pending in the federal courts of the District of Columbia will test an administrative compromise designed to make an impractical toxics program work in the absence of legislative revisions. The compromise is not the first; the same situation arose under the toxic water pollution program of the FWPCA.⁷³ Ten years have passed since the Water Act compromise. Environmentalists and EPA agreed on the FWPCA compromise that substituted universal, best-available-technology standards for health-based toxics standards — a solution that the courts and Congress subsequently endorsed.⁷⁴ Here EPA stands alone, though industry petitioners implicitly support the agency's use of the significant-risk test. EPA defends a regulatory scheme significantly more limited than that adopted for toxic water pollutants. Whether the court will defer to the agency's administrative creativity in this different context, and whether Congress will accept the EPA version of § 112 when the Clean Air Act finally gets its legislative overhaul remain to be seen.

1. 42 U.S.C. §§ 7401-7642, ELR STAT. 42201.

2. The Act should have been amended before the expiration of the December 31, 1982 attainment deadline. See Comment, Congress in 1983: Much Oversight, Little Legislation, 14 ELR 10005 (Jan. 1984).

3. 42 U.S.C. § 7412, ELR STAT. 42215.

4. Section 112(c), 42 U.S.C. § 7412(c), ELR STAT. 42215, makes it illegal to build new sources or operate existing sources that will violate promulgated NESHAPs. The section provides that standards take effect 90 days after promulgation and allows EPA to issue waivers for up to two years for existing sources to come into compliance, provided they do not create imminent threats to public health. Section 112(d), 42 U.S.C. § 7412(d), ELR STAT. 42216, authorizes EPA to delegate implementation of NESHAPs standards to states, but preserves EPA's right to enforce the standards. EPA includes violations of NESHAPs on its list of "significant violations," to which the agency requires its regional offices and states to give priority attention. See e.g., Memorandum from Joseph Cannon, Assistant Administrator for Air and Radiation, to Regional Administrators, Regions I-X, Guidance on "Timely and Appropriate" EPA/State Enforcement Response for Significant Air Violations (June 28, 1984). For an example of an EPA action to enforce a NESHAP, see, United States v. Ethyl Corp., 761 F.2d 1153, 15 ELR 20589 (5th Cir. 1985). Last year, EPA promulgated revisions to its regulations governing application and enforcement of NESHAPs, 50 Fed. Reg. 46284 (1985).

5. Criteria pollutants are those that the EPA Administrator determines "cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare," and the presence of which in the atmosphere "results from numerous or diverse mobile or stationary sources," § 108(a)(1), 42 U.S.C. § 7408(a)(1), ELR STAT. 42208. Criteria pollutants are the subject of national ambient air quality standards, § 109, 42 U.S.C. § 7409, ELR STAT. 42209, which must be attained and maintained by the states through state implementation plans, § 110, 42 U.S.C. § 7410, ELR STAT. 42210.

6. Section 112(a)(1), 42 U.S.C. § 7412(a)(1), ELR STAT. 42215.

7. 42 U.S.C. § 7412(b)(1)(A), ELR STAT. 42215.

8. 42 U.S.C. § 7422, ELR STAT. 42228.

9. Section 112(b)(1)(B), 42 U.S.C. § 7412(b)(1)(B), ELR STAT. 42215.

10. Section 302(k), 42 U.S.C. § 7602(k), ELR STAT. 42255.

11. Section 112(e), 42 U.S.C. § 7412(e), ELR STAT. 42216.

12. Section 112(b)(1)(B), 42 U.S.C. § 7412(b)(1)(B), ELR STAT. 42215.

13. 42 U.S.C. § 7411, ELR STAT. 42213.

14. Section 111 standards "shall reflect the degree of emission limitation and the percentage reduction achievable through application of the best technological system of continuous emission reduction which (taking into consideration the cost of achieving such emission reduction, any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated," § 111(a)(1), 42 U.S.C. § 7411(a)(1), ELR STAT. 42213.

15. Section 109 provides that national "primary ambient air quality standards … shall be … standards the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health," § 109(b)(1), 42 U.S.C. § 7409(b)(1), ELR STAT. 42210.

16. Adamo Wrecking Co. v. United States, 434 U.S. 275, 8 ELR 20171 (1978) (hazardous air pollutant standards promulgated prior to the 1977 amendments are void unless expressed as quantitative emission limits).

17. See, e.g., United States v. Ethyl Corp., 761 F.2d 1153, 15 ELR 20589 (5th Cir. 1985) (1976 zero-emission-standard for vinyl chloride is emission limitation, not work practice standard, and may not be challenged in civil enforcement action); Luckie v. Environmental Protection Agency, 752 F.2d 454, 15 ELR 20190 (9th Cir. 1985) (zero-visible-emission standard for asbestos is an emission limitation).

18. For example, it is generally accepted that there is no threshold level of safe exposure to airborne carcinogens. Therefore, protection of the public with a margin of safety would seem to require cutting out all exposure by eliminating all emissions. The option of moving people away from the risk seems foreclosed by the requirement in § 112 that EPA use emission or work practice standards. Completely eliminating emissions may be very costly or impossible, short of shutting down the source in some instances. Yet science cannot tell us with certainty whether most suspect substances are carcinogenic to humans. It can only make educated guesses. Thus § 112 forces EPA to face imposing large, measurable costs of compliance without knowing very clearly the magnitude of the risks it is removing. See generally, Wetstone, National Emission Standards for Hazardous Air Pollutants, in AIR AND WATER POLLUTION CONTROL LAW 187 (1982).

19. ENVTL. AND ENERGY STUDY INST., ENVTL. L. INST., Case Study 3.b. Hazardous Air Pollutant Listing, STATUTORY DEADLINES IN ENVIRONMENTAL LEGISLATION: THE CASE STUDIES 3 (1985).

20. 44 Fed Reg. 58642 (1979).

21. Wetstone, supra note 18, at 197 n.35.

22. Id. at 197.

23. New York v. Gorsuch, 554 F. Supp. 1060, 13 ELR 20248 (S.D.N.Y. 1983) (propose arsenic standards); Sierra Club v. Gorsuch, 551 F. Supp. 785, 13 ELR 20231 (N.D. Cal. 1982) (propose radionuclide standards); Sierra Club v. Ruckelshaus, 602 F. Supp. 892, 15 ELR 20080 (N.D. Cal. 1984) (promulgate radionuclide standards), 15 ELR 20082 (N.D. Cal. Sept. 17, 1984) (promulgate radionuclide standards or delist), 602 F. Supp. 892, 15 ELR 20101 (N.D. Cal. 1984) (Administrator held in contempt for failure to promulgate standards).

24. For a description of EPA's approach, see Brief for Respondent at 10-14, Natural Resources Defense Council, Inc. v. Thomas, Nos. 84-1387, -1391, 85-1567 (D.C. Cir. brief filed Dec. 23, 1985). For a general discussion of the role of risk assessment in EPA decision-making, see Ruckelshaus, Risk in a Free Society, 14 ELR 10190 (May 1984) and Doniger, The Gospel of Risk Management: Should We Be Converted?, 14 ELR 10222 (June 1984).

25. 50 Fed. Reg. 1182 (1985) (withdrawing the vinyl standard revisions, which were proposed at 42 Fed. Reg. 28154 (1977)); 49 Fed. Reg. 23492 (1984) (withdrawing proposed standards for benzene emissions from maleic anhydride plants, ethylbenzene/styrene plants, and benzene storage vessels and setting standards for fugitive emission sources); and 50 Fed. Reg. 5190 (1985) (issuing final radionuclide NESHAPs for DOE facilities, NRC-licensed facilities and non-DOE federal facilities, and elemental phosphorus plants requiring no emission controls).

26. EPA acknowledges that hazardous air pollutants pose a significant national health threat. It released a final report in 1985 estimating that selected air toxics cause 1300-1700 fatal cancers per year in this country, EPA, "The Magnitude and Nature of the Air Toxics Problem in the United States: Final Report," at 71 (1985). The draft analysis is discussed in Thompson, et al., The Air Toxic Problem in the United States: An Analysis of Cancer Risks Posed by Selected Air Toxics, 35 J. AIR POLLUTION CONTROL ASS'N 535 (May 1985). EPA also issued a final work practice for radionuclide emissions from underground uranium mines in early 1985, 50 Fed. Reg. 15386 (1985).

27. Either chromium or hexavalent chromium, 50 Fed. Reg. 24317 (1985), carbon tetrachloride, 50 Fed. Reg. 32621 (1985), chloroform, 50 Fed. Reg. 39626 (1985), ethylene oxide, 50 Fed. Reg. 40286 (1985), 1,3 butadiene, 50 Fed. Reg. 41466 (1985), ethylene dichloride, 50 Fed. Reg. 41994 (1985), and cadmium, 50 Fed. Reg. 42000 (1985). In addition, in 1984 EPA had listed coke oven emissions, 49 Fed. Reg. 36560 (1984).

28. It decided not to regulate chlorofluorocarbon-113, 50 Fed. Reg. 24313 (1985), methyl chloroform, 50 Fed. Reg. 24314 (1985), epichlorohydrin, 50 Fed. Reg. 24575 (1985), manganese, 50 Fed. Reg. 32627 (1985), chlorinated benzenes, 50 Fed. Reg. 32628 (1985), and vinylidene chloride, 50 Fed. Reg. 32632 (1985), and has announced its intent not to regulate chloroprene, 50 Fed. Reg. 39632 (1985) and hexachlorocyclopentadiene, 50 Fed. Reg. 40154 (1985). In 1984 the agency also ruled out regulation of polycyclic organic matter, 49 Fed. Reg. 31680 (1984) and toluene, 49 Fed. Reg. 22195 (1984).

29. 50 Fed. Reg. 24319 (1985).

30. See [Current Developments] ENVT. REP. 235 (BNA) (June 7, 1985). Organizations of state and local air pollution control officials adopted a resolution in response to the EPA proposal calling for EPA to limit the program to substances not presenting national problems and ensuring that the federal government would carry out the program in states not willing to shoulder the burden. [Current Developments] ENVT. REP. 1663 (BNA) (Dec. 27, 1985).

31. See [Current Developments] ENVT. REP. 194 (BNA) (May 31, 1985).

32. EPA, Chemical Emergency Preparedness Program (Nov. 1985).

33. A recent Maryland proposal for an air toxics program charted key features of programs in ten other states. These programs cover either all "hazardous pollutants" or list specific pollutants of concern. Some limit potential exposure levels at facility property lines based on occupational health exposure standards, others require installation of control technology. Air Management Administration, Office of Envtl. Programs, Maryland Dep't of Health and Mental Hygiene, Background and Overview of Proposed Air Toxics Control Program 10 (Nov. 15, 1985).

34. All four cases will be tracked in ELR PENDING LITIGATION.

35. No. 86 Civ. 0603(CSH), ELR PEND. LIT. 65890 (D.D.C. complaint filed Jan. 21, 1986).

36. See supra notes 27, 29.

37. 50 Fed. Reg. 39626, 39628 (1985) (review of controls and risk assessment for chloroform needed prior to decision on listing and formal decisionmaking on standards each likely to take two years).

38. See supra text accompanying note 7.

39. The suit might also be viewed in the context of the pending court of appeals litigation, in which the environmentalists are arguing that EPA violated § 112 by cutting back on proposals to regulate benzene, vinyl chloride, and radionuclides. The recent notices of intent do convey the impression of broad regulatory activity, without committing EPA to do any more regulating. The agency comes into the D.C. Circuit riding the crest of an unprecedented flood of § 112 activity. The environmentalists' suit might take some of the bloom off that rosy picture.

40. Natural Resources Defense Council, Inc. v. Thomas, Nos. 84-1387, -1391, 85-1567 (D.C. Cir.); Natural Resources Defense Council, Inc. v. U.S. Environmental Protection Agency, No. 85-1150, (D.C. Cir.); and Environmental Defense Fund, Inc. v. Thomas, Nos. 84-1524, et al. (D.C. Cir.).

41. In Natural Resources Defense Council, Inc. v. Thomas, Nos. 84-1387, -1391, 85-1567 (D.C. Cir.) (hereinafter cited as NRDC v. Thomas), NRDC and industry groups are challenging EPA's benzene NESHAPs. NRDC argues that EPA violated the Act by (1) using cost and technological feasibility tests in setting an equipment leaks standard; (2) using a significant-risk test to determine whether to regulate categories of benzene sources; and (3) denying NRDC's petition for reconsideration to take account of new data on benzene's toxicity, on the basis of a risk assessment document never made public, Brief for Natural Resources Defense Council, NRDC v. Thomas (filed Nov. 4, 1985). Industry petitioners claim that EPA violated the Clean Air Act's affirmative duty to regulate only on the basis of realistic risk assessments, because the models and assumptions used by EPA to support its decision to regulate fugitive emissions greatly exaggerate the real risk, Brief for Petitioners American Petroleum Institute, et al., NRDC v. Thomas (filed Nov. 4, 1985). EPA counters that (1) § 112 permits EPA not to regulate source categories that pose insignificant risks in light of the Supreme Court's decision on benzene regulation by OSHA; (2) statutory language, legislative history, and precedent all support reference to cost and technological feasibility in setting hazardous air pollutant standards; (3) EPA did not violate the Act's procedural requirements; and (4) the decision to regulate fugitive emissions was reasonable, Brief for Respondents, NRDC v. Thomas (filed Dec. 23, 1985).

In Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency, No. 85-1150, (D.C. Cir.) (hereinafter cited as NRDC v. U.S. EPA), NRDC challenged EPA's withdrawal of 1977 proposed amendments to the 1976 vinyl chloride standards. NRDC alleges that in withdrawing the proposed amendments last year, 50 Fed. Reg. 1182 (1985), EPA reneged on a 1977 settlement agreement and violated § 112 by giving economic and technological feasibility concerns priority over health protection as a result of watering down the best available technology test it had earlier agreed upon, Brief for Petitioner, NRDC v. U.S. EPA (filed June 17, 1985). The government responds with essentially the same arguments it made in the benzene case, which is that the statute, legislative history, and precedent allow the agency to consider costs and technology, Brief For Respondents, NRDC v. U.S. EPA (filed July 25, 1985). Intervenor-Respondent Vinyl Institute argues that NRDC lacks standing; the court lacks jurisdiction under § 307, because NRDC really is challenging the 1976 standards long past the deadline for such challenges; and EPA's withdrawal of the amendments was reasonable, Brief for Intervenor-Respondent Vinyl Institute, NRDC v. U.S. EPA (filed Oct. 3, 1985). See also Joint Brief of the American Petroleum Institute and the Chemical Manufacturers Association as Amicus Curiae, NRDC v. U.S. EPA (filed Aug. 19, 1985).

The third case, Environmental Defense Fund, Inc. v. Thomas, Nos. 84-1524, et al. (D.C. Cir.) revisits many of the same issues in the context of radionuclide emissions. Environmentalists petitioners claim that EPA used impermissible cost and technological-feasibility tests both in deciding whether to regulate emissions from coal-fired power plants and in setting standards for uranium mines, phosphorus plants, and Department of Energy facilities. They argue that an emission limitation would be feasible for uranium mine sources; therefore EPA violated the Act by promulgating a work-practice standard. They further argue that EPA's approach deprives some Americans of protection against toxic air pollution that Congress intended to extend to all. Brief of Petitioners Environmental Defense Fund, Natural Resources Defense Council, and Sierra Club, EDF v. Thomas (filed Oct. 9, 1985) (hereinafter cited as Environmentalists' Radionuclides Brief). A state petitioner echoes the environmentalists' arguments and attacks the federal agency's reliance on regulation under other statutes and establishment of alternative emission limits. Brief for Petitioner State of Ohio, EDF v. Thomas (filed Oct. 8, 1985). An industry petitioner argues that the standards EPA did promulgate should be set aside, because EPA did not satisfy the Clean Air Act requirement that it make a finding of significant risk and because the underground uranium mining standards are arbitrary and capricious, Brief for Petitioner American Mining Congress, EDF v. Thomas (filed Oct. 8, 1985). The federal government again argues that the Act authorizes use of significant-risk, economic-impact, and technological-feasibility tests in setting NESHAPs. It asks the court to overturn the decision of the district court, 602 F. Supp. 892, 900, 15 ELR 20101 (N.D. Cal. 1984), forcing EPA to regulate categories of sources for which EPA originally proposed standards and generally asserts the reasonableness of its actions. Brief for Respondents, EDF v. Thomas (filed Dec. 19, 1985) (hereinafter cited as EPA Radionuclides Brief). See also Brief for Intervenor Chemical Manufacturers Association, EDF v. Thomas (filed Jan. 13, 1986) and Brief Amicus Curiae of Scientists and Engineers for Secure Energy, Inc., EDF v. Thomas (filed Dec. 16, 1985).

42. EPA Radionuclides Brief, supra note 41, at 30.

43. Environmentalists' Radionuclides Brief, supra note 41, at 3 (footnote omitted).

44. The category is coal-fired boilers, EAP Radionuclides Brief, supra note 41, at 2o.

45. Id.

46. The category is elemental phosphorus plants, id. at 22, Table 1, Addendum 1.

47. Supra notes 45, 46. EAP also considered other factors, such as the likelihood that regulation under other statutes or the independent interests of the industry would create incentives to reduce emissions.

48. Nos. 84-1524, et al. (D.C. Cir.).

49. Environmentalists' Radionuclides Brief, supra note 41, at 65.

50. Environmentalists' Radionuclides Brief, supra note 41, at 40, citing Lead Industries Association v. EPA, 647 F.2d 1130, 10 ELR 20643 (D.C. Cir. 1980).

51. See, e.g., Environmentalists' Radionuclides Brief, supra note 41, at 49-50.

52. For example, in criticizing EPA's decision not to require controls for open pit uranium mines, environmentalists argued that EPA should have considered available controls such as covering exposed ore surfaces with dirt, id. at 27.

53. EPA Radionulcides Brief, supra note 41, at 32-33.

54. Id. at 33-39.

55. 448 U.S. 607, 10 ELR 20489 (1980).

56. EPA Radionuclides Brief, supra note 41, at 39-40.

57. Id. at 41-42.

58. See e.g., Environmentalists' Radionuclides Brief, supra note 41, at 26 (emissions from open pit uranium mines might be controlled by covering exposed ore surfaces not being worked with dirt).

59. 33 U.S.C. § 1317, ELR STAT. 42129.

60. Environmentalists' Radionuclides Brief, supra note 41, at 31-32.

61. Id. at 30.

62. Id. at 41.

63. EPA Radionuclides Brief, supra note 41, at 44.

64. Id.

65. Id. at 45.

66. Id. at 46.

67. Id. at 51.

68. Id. at 57.

69. Id. at 59.

70. Id. at 60.

71. 467 U.S. 837, 14 ELR 20507 (1984).

72. The environmentalists argue by analogy from decisions interpreting similar statutory language; the government attempts to distinguish those decisions with arguments that on occasion seem to suggest that statutory language is irrelevant to legislative intent. For example, environmentalists argue that the decision in Lead Industries Association v. EPA, 647 F.2d 1130, 10 ELR 20643 (D.C. Cir. 1980) that costs may not be taken into account in setting national ambient air quality standards, which are to protect public health with an adequate margin of safety, is relevant. The government argues that it is not, because Congress allowed costs to be taken into account in the state plans that implement the air quality standards, while there is no separate implementation step for NESHAPs. But the court ruling on the air quality standards did not rely on the existence of another step in the process, it relied on the statutory language ("nothing" … in § 109(b)'s "language suggests that the Administrator is to consider economic or technological feasibility in setting ambient air quality standards." 647 F.2d at 1148, 10 ELR at 20651) and legislative history (the "legislative history of the Act also shows the Administrator may not consider economic and technological feasibility in setting air quality standards; the absence of any provision requiring consideration of these factors was no accident; it was the result of a deliberate decision by Congress to subordinate such concerns to the achievement of health goals." 647 F.2d at 1149, 10 ELR at 20652). And in the new source performance standards, which like NESHAPs have no subsequent implementation phase, Congress specified that costs and feasibility be taken into account. The government's argument is further undercut by the fact that there is indeed a later implementation step for NESHAPS: the imposition and enforcement of the standards, in which Congress expressly gave some consideration to cost by allowing waivers for up to two years.

73. See Comment, Industrial Effluent Limitations Program in Disarray as Congress Prepares for Debate on Water Act Amendments, 12 ELR 10033 (Apr. 1982) for a discussion of the history of this parallel case.

74. Id. Also, EPA simply moved toxics control from one FWPCA section to another, but the Clean Air Act includes no alternate program for toxics control.