Court weighs challenge to EPA action on hazardous emissions

A federal appeals court today tackled a Sierra Club claim that U.S. EPA hasn't done enough to set emissions standards for three hazardous air pollutants.

At issue in the U.S. Court of Appeals for the District of Columbia Circuit is EPA's 2011 issuance of what is known as the "90 percent notice," in which the agency says it has done its duty under the Clean Air Act to set standards for seven hazardous air pollutants.

Although the three-judge panel indicated it was unlikely to reach the merits of the Sierra Club's claim, there is some indication the court could rule that EPA should at least be required to seek public notice and comment before the notice can be finalized.

Under the Clean Air Act, EPA is required to assure that sources accounting for "not less than" 90 percent of the aggregate emissions of each pollutant are subject to emissions standards.

The section of the statute in question addressed seven pollutants: alkylated lead compounds, polycyclic organic matter, hexachlorobenzene, mercury, polychlorinated biphenyls, 2,3,7,8-tetrachlorodibenzofurans and 2,3,7,8-tetrachlorodibenzo-p-dioxin.

The Sierra Club focused its petition on polychlorinated biphenyls (PCBs), polycyclic organic matter (POM) and hexachlorobenzene, which attorney James Pew of Earthjustice described as "especially harmful to human health" in one of his briefs.

Pew argues that EPA's rules for different pollution sources did not include emissions standards for the three pollutants. Prior to issuing the 90 percent notice, the agency had never claimed to have met the statutory requirements, he said.

EPA lawyers maintain that the Sierra Club's claims are off the mark, saying there is "no valid factual dispute" over whether EPA has carried out its Clean Air Act obligations. Emission standards do not need to "contain a numerical emission limit specifically naming" each of the pollutants in order to address emissions of that pollutant, EPA says in one of its briefs.

EPA also contends that the Sierra Club can only challenge individual rulemakings for each of the sources.

Citing the poor written record in the case, the judges appeared unwilling to reach the merits of Pew's argument.

Judge Stephen Williams noted that the "simpler route" for Pew was to pursue the argument that notice and comment was required.

Williams described the case as one of "mind-boggling complexity" that suffered as a result of the poor record.

He focused on the fact that EPA has tweaked the list of regulated sources that it says account for the bulk of the emissions from the hazardous pollutants at issue since its original list was published in 1998. EPA maintains that its individual regulations for those sources meet all Clean Air Act requirements, including for the hazardous pollutants. It has conceded that it has updated the list.

Notice and comment would help establish what exactly that list includes at this point, Williams noted.

The 90 percent notice, he told Justice Department attorney Madeline Fleisher, "is the first final determination of sources that EPA says meet the 90 percent requirement" and therefore could be deemed subject to notice and comment.

Judge David Tatel appeared to agree with Williams' view that the case could more easily be decided on the notice and comment point, although he seemed less certain that any updates to the 1998 list made much difference to the Sierra Club's case because the modifications did not modify the emissions standards themselves.

"What's the substantive change?" he asked Pew at one point. Unless there is a substantive change, "it doesn't require notice and comment," he added.

Tatel also challenged EPA's assertion that the Sierra Club could only challenge the individual emissions standards.

"I think you're right to the extent this issue can be raised in a rulemaking," he told Fleisher. "But I don't see why that precludes them from arguing in this proceeding."

Fleisher told the court that the Sierra Club was only making the challenge because it realized it should have made the same arguments earlier during the individual rulemakings.

"Sierra Club is trying to make up for the fact that they haven't always raised it," she said.