Circuit Nixes Challenge To Chemical Emission Rules

     WASHINGTON (CN) – The Environmental Protection Agency’s process of regulating factories that use or produce synthetic organic chemicals does not violate the Clean Air Act, the D.C. Circuit ruled.

     The agency currently uses technology-based controls to regulate the carcinogenic emissions from 238 facilities in the United States that make the synthetic chemicals, which are used to make plastic, rubber, fiber, protective coating and detergent.
     Environmentalists said federal law requires the government to undertake a rulemaking process to determine if it should revise its technology-based standards to include risk-based standards, because the industry’s emissions post a lifetime excess cancer risks of more than one in 1 million.
     In its notice of proposed rulemaking, the EPA listed two options for risk rulemaking, one of which would have simply reaffirmed the existing rule.
     The Natural Resources Defense Council and the Louisiana Environmental Action Network argued the agency must start from scratch. The appeals court disagreed, ruling that the agency may readopt existing standards after examining residual risks.
     Judge Laurence Silberman clarified that the EPA administrator is only required to adhere to an “ample margin of safety to protect public health,” and that Congress would have outlined specific standards in the act if it wanted to. He pointed out that the act allows for a maximum excess risk of one in 10,000, while aiming for one in 1 million.
     Petitioners complained that the EPA’s proposition to not use expensive leakless components in curbing emissions “tainted” the technology review, but the court found that the EPA is only barred from considering costs when it initially sets technology standards, and neither the EPA nor the petitioners found major technological developments since the last adoption of standards.
     The D.C. Circuit also found the government’s reliance on industry risk-assessment data sufficient, rejecting petitioners’ claims that the data were faulty and left out huge emission sources. Though only 44 percent of emitting sources responded to the agency-approved questionnaire, the EPA used environmentally protective defaults to fill in the gaps, the court determined.
     The three-judge panel rejected petitioners’ motion for review, affirming the government’s finding that existing controls sufficiently reduce cancer risks from synthetic organic chemical emissions.

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