Special Topics in Environmental Management

Industry Struck Out on NESHAP Petitions

Industry struck out swinging on all five parts of its petitions to the U.S. Court of Appeals for the D.C. Circuit to invalidate requirements in the EPA’s National Emissions Standards for Hazardous Air Pollutants (NESHAP) for Brick and Structural Clay Products Manufacturing; and the NESHAP for Clay Ceramics Manufacturing (October 26, 2015, Federal Register (FR)). Conversely, environmental petitioners persuaded the court to remand to the EPA five of six parts of the NESHAPs. The specific challenges in the consolidated petitions are listed below, along with the court’s ruling on each.

Affected products

The Brick and Structural Clay Products rule covers the manufacture of face brick, structural brick, brick pavers, other brick products, clay pipe, roof tile, extruded floor and wall tile, and other extruded dimensional clay products. The Ceramics rule covers the production of pressed floor tile, pressed wall tile, and other pressed tile and sanitary ware (e.g., sinks and toilets).

While the standards differed based on the best performing sources in the two sectors, the primary requirements set maximum achievable control technology (MACT) emissions limits mainly on acid gases, such as hydrogen fluoride (HF) and hydrogen chloride (HCl), for the Brick and Structural Clay Products NESHAP and mercury and other metals emitted by both categories.

Environmental group petitions

  • Petitioners contended that the EPA violated the Clean Air Act (CAA) by concluding that acid gas pollutants do not pose a cancer risk. The EPA had pointed to a lack of evidence that HF, HCl, and chlorine cause cancer. Petitioners argued that the EPA acted unreasonably in concluding that it was “established” that the acid gases present no cancer risk.
    • The D.C. Circuit found that the Agency did not provide a sufficient record to determine that there is no cancer risk from these hazardous air pollutants (HAPs).
  • Petitioners argued that the EPA erred by relying on low-confidence evidence for the health risks of HCl; by declining to use California EPA’s reference concentrations for HCl; and by not shielding the public from acute exposure to HF.
    • The court found that the EPA’s statement that “low-confidence” reference concentrations of HCl are suitable for regulatory purposes lacked supporting reasoning. The court added that the Agency did not explain how the health threshold could be established if low-confidence reference concentrations are subject to change.
    • Regarding the HF health threshold, the court found that the EPA failed to explain why it would be appropriate to use a less conservative standard than the California EPA level.
  • Petitioners argued that the EPA violated the CAA by failing to include an ample margin of safety in the rules. The EPA responded that it is entitled to deference in determining how to provide the ample margin of safety because the statute does not provide unambiguous direction.
    • The court agreed that the EPA is entitled to deference in determining how to include an ample margin of safety in the health threshold but had doubts as to whether the Agency provided any margin of safety at all. Consequently, the court could not conclude that the standards adequately mitigated carcinogenic risk.
  • The EPA used a method called upper prediction limit, a statistical tool that allows estimation of the best performing source from a limited data set and accounts for variability inherent in emissions and emissions testing.
    • Petitioners argued that the EPA’s application of the upper prediction limit to limited data sets was unreasonable and inadequately explained.
    • The court said the groups did not back up its contentions with evidence but still concluded that the Agency failed to adequately explain adjustments it made to five of the upper prediction limit results. The court did deny the petition as to the other applications of the upper prediction limit to limited data sets.
  • Petitioners argued that the EPA’s decision to allow brick tunnel kilns to comply with alternative emissions floors violated the CAA’s plain language requiring the MACT floor to be set based on “the best” performing sources in a category.
    • The court stated that the Agency does have some discretion to “distinguish among classes, types, and sizes” of emissions sources and set separate MACT floors for each. However, the court added, that discretion does not extend to defining different “best” metrics within the same category and allowing emitters to comply with the most favorable standard.

Industry petitions

  • The Brick Industry Association (BIA) contended that the EPA violated the CAA because it used synthetic minor sources to set the MACT floor for brick plant major sources.
    • The court deferred to the EPA’s reasonable interpretation that the category should be defined as major brick sources, including those with the potential to emit to that level, such as synthetic minor sources.
  • The BIA argued that the EPA acted arbitrarily and capriciously because it did not correct, supplement, or reconcile “suspicious data” and used that data to set the MACT floor for particulate matter and nonmercury hazardous metal emissions from brick plants.
    • The court replied that the Agency has wide latitude in determining the extent of data gathering necessary to solve a problem and added that the EPA’s explanation of why it discarded some data and relied on others was sufficiently reasoned and entitled to deference.
  • The BIA argued that the EPA violated congressional intent by setting mercury emissions standards that require that the industry make raw material substitutions.
    • The court found that the argument was misplaced mainly because the NESHAP did not mandate a raw material substitution. Additionally, the EPA considered the existence of potential control technology that would allow the industry to achieve the MACT floor without a raw material substitution. Accordingly, the Agency reasoned that some brick kilns could use an activated-carbon injection control device to achieve the MACT floor without a raw material substitution.
  • Kohler Company contended that the Agency improperly used emissions data from a scrubber the company had deactivated and then reactivated at the EPA’s request to gather data. According to the company, data from the scrubber was artificial because the equipment was not “in practice.”
    • The court found that the CAA does not specify when emissions achieved “in practice” occur. Also, the statute requires that the EPA consider the average emissions achieved, which contemplates that the performance could have occurred in the past.
  • Finally, the Tile Council of North America said the EPA violated the CAA by listing the sector as a major source because there are no longer any major source tile kilns. The Council also contended that the EPA erred by failing to perform a beyond-the-floor MACT analysis for dioxin/furan emissions.
    • The court did not address these issues because the Council did not have standing in the case.

The D.C. Circuit’s ruling is here.