Gold-Mining Emission Rules Withstand Query

     (CN) – Sierra Club cannot challenge Environmental Protection Agency statutes related to mercury emissions from the mining of gold, the D.C. Circuit ruled.
     The Sierra Club and Desert Citizens Against Pollution had argued that ambiguous language in the Clean Air Act and the so-called Gold Mines Rule should be interpreted as imposing broader restrictions on producers of mercury and other hazardous air pollutants, or HAPs, a known byproduct of gold mine ore processing and production.
     Section 112(c)(6) amended the Clean Air Act to name seven particularly potent HAPs that required application of strict maximum achievable control technology, or MACT, instead of generally achievable control technology, or GACT. Congress had previously identified 189 specific HAPs that would meet softer regulations.
     In its petition for review, the activist groups contended that “whenever the EPA creates MACT standards for § 112(c)(6) HAPs for a source, it must similarly impose MACT standards for emissions from that source of any HAP listed anywhere in § 112 … including the 189 HAPs listed in § 112(b)(1),” according to the court’s summary (emphasis in original).
     Though a three-judge panel found the EPA’s language “inelegant,” it nevertheless denied the petition for review last week.
     “Petitioners’ reading of the statute is linguistically possible,” Judge Stephen Williams wrote for the court. “But however linguistically possible petitioners’ interpretation, it is not unambiguously correct.”
     “Congress may have plausibly intended simply to set MACT as the standard for the seven § 112(c)(6) HAPs, as opposed to the less restrictive GACT standard specified in § 112(d)(5),” Williams added. “This reading makes particular sense given that the usual criterion for selecting MACT versus GACT standards – whether a source is ‘major’ or ‘area’ – is missing from the framework established by § 112(c)(6).”
     Reinterpreting the act could also cause other side effects, the court found.
     “We further note that petitioners’ view would seriously risk undercutting the priority that Congress obviously assigned the § 112(c)(6) HAPs,” the opinion states.
     The court also rejected the call to apply HAP regulations for gold mines equally to “fugitive emissions,” or emissions from post-industrial sources including “tailing ponds, leach fields, and waste rock piles.”
     The EPA “made clear that the rule would not address such emissions,” Williams wrote.
     The Sierra Club and Desert Citizens pointed to a particularly ambiguous clause in the Gold Mines Rule that holds “any industrial facility engaged in the processing of gold mine ore” to relevant emissions standards.”
     They “argued that such a broad mandate would cover all emissions, including fugitive emissions,” according to the court.
     But the panel noted that, “in another section, EPA appeared to narrow the rule’s scope.”
     That section identified “ore pretreatment processes,” “carbon processes with mercury retorts,” “carbon processes without mercury retorts” and “non-carbon concentrate processes” as the “affected sources” that are subject to EPA regulations, according to the ruling.
     Williams noted that “petitioners do not contend that any of the ‘affected sources’ listed encompasses fugitive emissions.”
     “In response to petitioners’ comments advocating the broader definition, EPA resolved any resulting ambiguity in favor of the narrower definition, making the exclusion of ‘fugitive emissions’ from ‘affected sources’ express rather than implicit,” the decision states.

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