Cement Emission Rules Mostly Survive Challenge

(CN) - New federal standards on cement emissions pass muster, but polluters should not have been given an affirmative defense for "unavoidable" releases, the D.C. Circuit ruled.

Portland cement, the main ingredient in concrete, comes from superheating raw pulverized limestone and other minerals. The resulting substance, called clinker, is then ground into a fine powder and mixed with rocks, sand and water to form concrete.

The heating and grinding processes release numerous air pollutants like mercury, hydrochloric acid, hydrocarbons and particulate matter.

In 2010, the U.S. Environmental Protection Agency set emissions standards for these pollutants and required cement plants to comply with the new standards by September 2013.

The rule also included an affirmative defense for polluters that violated the standards because of "unavoidable' malfunctions."

A challenge by the cement industry led the D.C. Circuit to have the EPA reassess the way it calculates maximum emissions levels to establish statutory "floor" standards.

Among changes to the rule reissued last year, the EPA excluded commercial incinerators from its dataset; changed the statutory floor for particulate matter from 0.04 lb/ton to 0.07 lb/ton of clinker for existing kilns; and extended the compliance date to September 2015.

The EPA retained the affirmative defense for polluters, however, deeming it necessary because, as the court explained, "emission limits may sometimes be exceeded for reasons beyond the control of the source."

National Resources Defense Council and several other environmental groups petitioned for another court review, claiming the 2013 rule violates the Clean Air Act and the affirmative defense provision exceeds the EPA's authority.

A three-judge panel in Washington gave both sides some relief Friday.

Though the emission standards and compliance date for Portland cement kilns passed muster, the agency was "disappointed that the court held that the Clean Air Act did not provide authority for the affirmative defense at issue in the rule," EPA spokeswoman Enesta Jones said in an interview.

Since the EPA administers the Clean Air Act and is therefore the authority on interpreting its provisions, the panel rejected claims that it arbitrarily reduced the statutory floor for particulate matter fail.

The agency's consideration of cost-effectiveness in establishing "beyond-the-floor," or more restrictive, standards for particulate matter survived scrutiny for similar reasons, the court found.

The environmental groups also argued that the EPA unlawfully extended the compliance deadline for mercury, particulate matter, hydrochloric acid and hydrocarbon emissions standards beyond the three years afforded by the statute.

But the court noted that the 2013 rule created entirely new standards with regard to particulate matter.

Writing for the panel, Judge Brett Kavanaugh noted that the pushback of the compliance date for the other standards initially "present[s] a bit of a conundrum" because the 2013 rule did not alter their standards and the court did not vacate the earlier 2010 rule establishing their standards.

But the "conundrum is resolved when one realizes that it would be irrational and even absurd to have different compliance dates for the different pollutants," Kavanaugh added.

"Petitioner's argument for a 2013 compliance date would be inconsistent" with the court's previous decision that altering any pollutant's standard would push back compliance dates for the other pollutants' standards, the ruling states.

The affirmative defense that the rule provides polluters, however, means that "the district court may assess penalties only if violators 'fail to meet [their] burden of proving" that the emissions violations were "unavoidable' malfunctions," the ruling notes (brackets in original).

Kavaugh agreed with the petitioners that this provision exceeds the EPA's authority, as it should be left to the courts to decide if an affirmative defense is appropriate.

The Clean Air Act "clearly vests authority over private suits in the courts, not EPA," when determining if civil penalties are appropriate, Kavanaugh wrote (emphasis in original).

Earthjustice attorney Seth Johnson noted in a statement that this "decision rightly tells polluters they won't get a free pass when they spew uncontrolled toxic emissions into the air we breathe."

"The communities who have been burdened by excess mercury, particulate matter, and other hazardous air pollution that plants blame on 'malfunctions' can now rest assured that plants won't have a license to emit pollution at will," Johnson added.

Kavanaugh wrote that it is for the courts to decide, once a private suit is filed, if the defendant can fight penalties by pointing to "factors in Section 113(e)(1) such as the defendant's 'full compliance history and good faith efforts to comply.'"

"EPA can support that argument as intervenor or amicus, to the extent such status is deemed appropriate by the relevant court," Kavanaugh added.

The Clean Air Act does not permit the EPA to create an affirmative defense by enabling its administrator to enact any regulation necessary for compliance, according to the ruling.

Rather, the administrator's power to create ancillary regulations applies only if there is a regulatory "gap to fill," Kavanaugh wrote. One does not exist here.

The EPA likewise failed to show that the Clean Air Act does not expressly forbid the creation of an affirmative defense, and that such a defense is necessary to take into account malfunctions in control technology that can cause unintended but unavoidable emissions violations.

Though the court acknowledged the need to keep the administrative process flexible, "the suggestion implicit in EPA's argument - that we should 'presume a delegation of power absent an express withholding of such power' - is 'plainly out of keeping" with case precedent, the ruling states.

And though the need to balance "practical reality" with continuous emissions standards compliance is an excellent argument, it is one that must be made "in future civil cases when the issue arises," the court added. "But it does not suffice to give EPA authority to create an affirmative defense."

James Pew with the National Resources Defense Council and Seth Johnson with EarthJustice argued for the environmental groups.

Justice Department attorney Matthew Oakes argued for the EPA and other defendants, along with Acting Assistant Attorney General Robert Dreher and EPA attorney Steven Silverman.

Judge Sri Srinivasan and Senior Judge Harry Edwards joined Kavanaugh's ruling.

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