EPA Pollutant List Sent Back for Public Comment

WASHINGTON (CN) - The Environmental Protection Agency did not fulfill its duties under the Clean Air Act and violated notice-and-comment procedures, the D.C. Circuit ruled.

Congress tasked the EPA with identifying sources of hazardous air pollutants and creating regulation standards in 1990.

Section 112(c)(6) amended the Clean Air Act to name seven particularly potent hazardous air pollutants, or HAPs, that required application of strict maximum achievable control technology. With respect to those HAPs, the EPA administrator had until Nov. 15, 1995, to "list categories and subcategories of sources assuring that sources accounting for not less than 90 per centum of the aggregate emissions of each such pollutant are subject to standards under section (d)(2) or (d)(4) of this section."

The EPA was supposed to promulgate the standards by Nov. 15, 2000.

After that deadline passed, the Sierra Club filed suit in 2001. A federal judge repeatedly extended the deadline and ultimately ordered it to comply by Feb. 21, 2011.

In March 2011, the EPA issued a Notice of Determination announcing that "it had met the regulatory obligations imposed on it by § 112(c)(6) of the Clean Air Act."

The Sierra Club petitioned the federal appeals court for review. It said the EPA had improperly issued the determination before circulating it for public comment.

In response, the EPA claimed that the Sierra Club lacked standing and had filed an untimely challenge.

A three-judge panel of the D.C. Circuit disagreed last week.

Sierra Club has showed standing by alleging a "redressable concrete interest," in the proximity of its members to sources of the seven HAPs, according to the ruling.

The EPA also failed to show that the Sierra Club is using its current lawsuit "as a back door for attacking long past rulemakings."

"Sierra Club's challenge is not only timely but could not be brought at all until after EPA identified the rules that it believed satisfied its responsibilities under § 112(c)(6)," Judge Stephen Williams wrote for the court.

The EPA's Determination qualifies as a legislative rulemaking because "the whole purpose of the determination is to ring down the curtain on EPA's § 112(c)(6) activities," according to the ruling.

Notice-and-comment requirements therefore apply to the EPA's determination, but the court declined to comment on the conclusions of that filing.

"Because this conclusion forces a remand under which the parties can develop a record that will render EPA's legal and technical decisions more transparent and thereby facilitate substantive review (and perhaps moot some or all of the parties' dispute), we do not reach Sierra Club's arguments on the substance of the determination or express the slightest opinion as to their merit," Williams wrote (parentheses in original).

The EPA must fulfill public commenting requirements and refile the determination on remand.

In a concurring opinion, Judge Karen Henderson expressed doubt that the Sierra Club would find relief on remand.

"Because EPA's compliance with section § 112(c)(6) does not rest on the issuance of the determination, it is likely that, on remand, EPA will simply abandon the Determination rather than undertake the expensive and cumbersome notice-and-comment procedures imposed by section 553 of the APA," Henderson wrote.

She argued that the Sierra Club should instead petition the EPA to initiate new rulemaking, and then ask the D.C. Court review any denial issued by EPA.

"We have never, however, required a petitioner challenging agency action to show that the agency will not abandon the rulemaking after vacatur and remand - nor could we - and I would not seek t impose that requirement here. Accordingly, I concur in the judgment of the Court," Henderson concluded.

James Pew argued the case for Sierra Club. Justice Department attorney Madeline Fleisher argued for the EPA along with attorneys Norman Rave Jr. and Michael Thrift.

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