DC Circuit OKs Limits|for PVC Emissions

(CN) - Makers of PVC pipe can't challenge the EPA's first established limits on pollutants and carcinogens emitted during the manufacturing process, the D.C. Circuit ruled.

Polyvinyl chloride is a common synthetic plastic commonly used to make water and sewage pipes, but also used for bottles, window frames, packaging, and credit cards.

"As is true of the making of so many good things, the less one knows, the better one sleeps," Circuit Judge Nina Pillard began the panel's 29-page opinion issued May 29. "PVC production results in the emission of more than a dozen known or suspected carcinogens and other hazardous air pollutants, a miasma that includes the known carcinogens 1,3-butadiene, benzene, and vinyl chloride."

The Environmental Protection Agency issued its first limits on emissions of air pollutants from PVC production in 2012.

The rules limit the concentration of organic hazardous air pollutants in process wastewater, in air emitted through process vents, and establish monitoring provisions.

Last week, the D.C. Circuit upheld the limits against a challenge brought by PVC manufacturers that claimed the agency did not follow proper rulemaking procedures and used faulty data to make its decision.

"Several of petitioners' challenges to the rule are barred because they were not raised during the notice and comment period," Pillard wrote.

The manufacturers also failed to show that the EPA has unreasonably delayed its decision on petitioners' request for reconsideration.

"The agency is actively gathering additional data to inform its action on reconsideration, anticipates holding open a new notice and comment period, and predicts that it will complete reconsideration by a date certain (April 2016)," the opinion stated. "There is thus neither a functional denial nor any suggestion in this record that the agency has finished reconsideration but refused to acknowledge it."

There is no evidence that the EPA's limit on wastewater pollutants will materially change, which matters because the manufacturers will be unable to show they were injured by a delay if the costs to comply with the EPA's ultimate rule remain the same, the panel held.

Circuit Judge Brett Kavanaugh dissented in part, and said that petitioners should be granted a stay since the EPA did not oppose one.

But the majority said that the dissent "oversimplifies EPA's position and does not account for the interests of other stakeholders who supported the rule and who themselves stand to suffer harm from EPA inaction."

Pillard continued: "The risk is that an agency could circumvent the rulemaking process through litigation concessions, thereby denying interested parties the opportunity to oppose or otherwise comment on significant changes in regulatory policy. If an agency could engage in rescission by concession, the doctrine requiring agencies to give reasons before they rescind rules would be a dead letter."

Circuit Judge Judith Rogers joined Pillard's opinion in full.

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