EPA Faces Comeuppance on Clay & Brick Pollution

WASHINGTON (CN) - The Environmental Protection Agency cannot dismiss claims that it has ignored a 12-year-old order to regulate brick and clay manufacturers under the Clean Air Act.

The Sierra Club's lawsuit claims that the EPA violated a statutory obligation to promulgate by Nov. 15, 2000, regulations to reduce emissions of hazardous air pollutants created during the manufacturing of brick and structural clay products.

Noting that it issued regulations in 2003, the EPA said the claims were mooted and the court should dismiss for lack of jurisdiction. Those regulations, however, were quickly vacated by an appeals court.

U.S. District Judge Richard W. Roberts refused to dismiss Tuesday.

"The EPA's 2003 regulations do not discharge the EPA's duty to promulgate emission standards for new and existing sources at brick and structural clay products manufacturing facilities and clay ceramics manufacturing facilities, and the EPA remains in violation of its non-discretionary duty to issue those regulations by November 15, 2000," Roberts wrote.

Though the EPA says the Sierra Club failed to file suit within the six-year statute of limitations, as required by 28 U.S.C. § 2401, Roberts relied precedent to say that finding "would be error."

"In a case where the government failed to take prescribed actions by deadlines set in four environmental statutes, the D.C. Circuit opined that it was likely error for the district court to have dismissed as time-barred under § 2401 claims seeking to compel agency action under the APA," Roberts wrote.

Congress revised the Clean Air Act in 1990 as it applied to the regulation of approximately 189 specified hazardous air pollutants. It directed the EPA to identify the sources of those pollutants and to promulgate regulations governing the emission of hazardous air pollutants from those sources.

A section of the Clean Air Act required the agency to promulgate emissions standards for major sources of hazardous air pollutants by November 15, 2000.

Thoguh the EPA listed brick kilns and clay products manufacturing as a major source of hazardous air pollutants, it waited until 2003 to issue a final rule creating a category containing both brick and structural clay products manufacturing and clay ceramics manufacturing, and promulgating national emission standards for hazardous air pollutants for new and existing sources at brick and structural clay products manufacturing facilities and clay ceramics manufacturing facilities.

The D.C. Circuit vacated those standards in 2007 and remanded the issue back to the EPA, but the agency has not yet promulgated new standards.

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