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Apr 2007
06
April 06, 2007

EPA's Discretion to Set Standards for Hazardous Air Pollutants
Severely Limited Federal Appellate Panel

The D.C. Circuit Court of Appeals' March 13, 2007 decision vacating the Maximum Achievable Control Technology ("MACT") standards for hazardous air pollutants promulgated by EPA under Section 112(d)(3) of the Clean Air Act for the Brick and Ceramic Kiln industry (Sierra Club v. EPA, No. 03-1202) ("Brick MACT decision") sends a clear signal that the Circuit, which has exclusive jurisdiction to hear cases challenging MACT rules, believes that EPA has been ignoring clear statutory mandates in adopting MACT standards. Relying upon what the Court considered to be established precedent in the Circuit, specifically Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855 (D.C. Cir. 2001) (per curiam), and National Lime Ass’n v. EPA, 233 F.3d 625 (D.C.Cir. 2000), the Court strongly rebuked EPA.

The Sierra Club argues that EPA's methodology in setting floors for brick and ceramics kilns violates the Clean Air Act's plain language as interpreted by Cement Kiln and National Lime II. We agree.

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If the Environmental Protection Agency disagrees with the Clean Air Act’s requirements for setting emissions standards, it should take its concerns to Congress. If EPA disagrees with this court’s interpretation of the Clean Air Act, it should seek rehearing en banc or file a petition for a writ of certiorari. In the meantime, it must obey the Clean Air Act as written by Congress and interpreted by this court.

The opinion criticized EPA's process of setting MACT standards in a variety of respects, but the most far-reaching impacts will stem from two central holdings. First, the Court clearly declared that EPA must set numeric emission standards for hazardous air pollutants based upon the statutory formula as applied to the "best performing" sources in an industry category. The standards should be applied even where it is recognized that many sources within the category may not be able to achieve the standard irrespective of the extent of control technology that could be applied. Second, the Court significantly limited those circumstances in which EPA can adopt so-called "work practices" in lieu of numeric emission limitations.

The opinion had immediate impact beyond the brick and ceramic kiln industry. In response to the opinion, EPA filed a motion in the D.C. Circuit to voluntarily vacate portions of the Boiler MACT (40 C.F.R. 63, Subpart DDDDD). Legal challenges to these rules had been already brief and argued to the Court. However, EPA acknowledged that in light of the decision in the Brick MACT case, its legal position in the Boiler MACT litigation was, in part, untenable.

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