In response to multiple lawsuits, the U.S. courts periodically order the EPA to complete its rulemaking obligations under Clean Air Act (CAA) Section 112 (Hazardous Air Pollutants).
In the latest case, a U.S. District Court judge gave the Agency 31/2 years to complete residual risk and technology reviews (RTRs) for nine National Emissions Standards for Hazardous Air Pollutants (NESHAP). Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia selected this period of time as a “middle ground” between the time the EPA said it needed to complete the rules and the much shorter time frame requested by several environmental groups.
Eight Years Are Statutory
CAA Section 112 RTRs comprise two components. First, every 8 years, the EPA must complete a technology review to determine whether the Agency should modify current emissions standards for a Section 112 source category in light of improvements in pollution control technology. Second, the Agency must consider any risks to public health or the environment that remain despite the agency’s previously implemented NESHAPs and develop additional standards to mitigate any residual risks within 8 years after promulgation of a NESHAP.
Deadlines Requested
The EPA has been chronically late in promulgating both the baseline NESHAPs and the RTRs for the 174 source categories regulated under Section 112. In this case, the plaintiffs petitioned the court to have the EPA complete the RTRs for the following NESHAPs: Mercury Emissions from Mercury Cell Chlor-Alkali Plants; Semiconductor Manufacturing; Generic MACT II—Spandex Production; Generic MACT II—Carbon Black Production; Primary Copper Smelting; Flexible Polyurethane Foam Fabrication Operations; Refractory Products Manufacturing; and Primary Magnesium Refinery.
The plaintiffs requested that the court order the Agency to complete the RTRs and issue final amendments to five unspecified NESHAPs within 1 year and complete the RTRs for the remaining, also unspecified, NESHAPs, within 2 years. The EPA countered by proposing to complete four rulemakings in mid- to late 2022; one in February 2023; one in February 2024; two in the autumn of 2024; and the final one in January 2025.
Staff Not There
The EPA offered two primary arguments in support of its proposed schedule. First, the Agency pointed to staff shortage, saying that all available resources to perform the nine RTRs at issue are already “fully utilized” because the Agency is in the process of completing several dozen RTRs for other source categories within schedules mandated by other court orders and consent decrees. Second, the EPA asserted that the plaintiffs’ schedule fails to acknowledge the complexity of the rulemakings at issue and that the RTR rulemaking process involves nine distinct phases that must be completed for each individual source category.
Plaintiffs responded that there was no validity to the staff shortage claim because the Agency offered no evidence that it could not hire contractors to supplement existing staff or that it could not assign other air office staff who were involved in EPA discretionary activities to the RTR work.
Difficult but Not Impossible
In response to these conflicting arguments, Jackson noted that district judges have broad discretion to set deadlines for the EPA, but it may not order the Agency to do the “impossible.” But Jackson adds that the Agency bears a “heavy burden” to substantiate a claim that it cannot meet CAA statutory deadlines. She noted that the D.C. Circuit described two situations that might validate a significant delay in meeting a statutory deadline. The first is an insufficient budget; the second is difficulty in evaluating the available control technologies for specific sectors.
Jackson concludes that the EPA simply did not produce evidence that persuaded her that the Agency could not bring in additional staff engaged in discretionary CAA activities, including enforcement, to assist in completing the RTRs. The EPA itself conceded that no more than three full-time equivalent (FTE) staff members were needed to complete any RTR rulemaking and that the majority required only one or two FTEs. Jackson also pointed out that the EPA “has indicated publicly that it has no need for additional resources with respect to its Clean Air Act responsibilities, and the extended schedule it proposes for the overdue RTRs at issue here includes time for work that may be unnecessary and thus may never occur.”
Regarding EPA’s contention that forcing completion of the rules any faster than what the Agency requested would compromise the quality of the final rules, Jackson cited a prior circuit court ruling that cautioned courts to be wary of agency arguments “that additional time is needed simply to improve the quality or soundness of the regulations to be enacted.
Accordingly, the judge ordered the EPA to begin rulemakings for the nine NESHAPs no later than January 1, 2019, after completing its RTR reviews, and complete all nine overdue rulemakings no later than October 1, 2021.
Jackson’s opinion in Community In-Power and Development Association et al. v. E. Scott Pruitt is here.