Judge: EPA Has No Duty to Periodically Review Industrial Pollution Risks

(AP Photo/David J. Phillip)

SAN FRANCISCO (CN) — The U.S. Environmental Protection Agency has no duty to review risks associated with major sources of industrial pollution on an ongoing basis — but it must update emissions-control technology for coke ovens and other sources of pollution every eight years, a federal judge ruled Friday.

In a dispute over whether 1990 amendments to the Clean Air Act require the EPA to conduct risk reviews within eight years every time pollution standards are updated, or only after standards are initially rolled out, U.S. District Judge Vince Chhabria sided with the government’s interpretation.

Citing the Ninth Circuit’s 2014 decision in WildEarth Guardians v. McCarthy, Chhabria found that when a law’s text is ambiguous he must defer to the government’s interpretation unless there is a “specific, unequivocal command” in the language of the statute.

“Both parties have put forward plausible interpretations of the statute, and when the statute could reasonably be read either way, the clear-statement rule dictates the outcome of the case,” Chhabria wrote in his 20-page ruling.

However, because the EPA acknowledged it was required to conduct an initial risk review for coke oven battery stacks and technology reviews for coke over batteries and battery stacks, Chhabria ordered the agency to complete those reviews within 30 months.

Citizens for Pennsylvania’s Future and three other environmental groups sued the EPA in April 2019, claiming the agency shirked its duty to update emission standards for coke ovens every eight years.

Coke ovens heat coal at high temperatures to create coke, a carbon-based fuel used for making steel and melting scrap iron.

The ovens, many of which are used in Pennsylvania steel mills, spew more than 40 different types of air pollutants, including benzene, lead and mercury. The toxins are known to cause cancer, lung problems, blood disorders, skin and eye irritation, and damage the central nervous system.

The environmental groups claimed that when Congress amended the Clean Air Act in 1990, it created a mandatory duty for the EPA to update standards for coke ovens and other major sources of air pollution every eight years. The EPA contends it only must conduct risk reviews eight years after standards are first put in place with no obligation for further action.

The dispute came down to what “promulgation” means. The law requires risk reviews eight years after new standards are promulgated or implemented.

According to the plaintiffs, “promulgation” includes a follow-up review and revision of standards after eight years. The EPA maintains “promulgation” only refers to the initial rollout of new standards.

For coke ovens, the EPA introduced new air pollution standards in 1993 and performed its follow-up risk review well past the eight-year deadline in 2005. The agency maintains that it no longer has a legal obligation to conduct further risk reviews for those existing standards.

Chhabria acknowledged the plaintiffs presented a sound policy argument as to why the EPA should be required to conduct risk reviews on an ongoing basis.

During oral arguments in February, the judge said requiring periodic reviews makes sense because researchers can learn more about the adverse effects of a pollutant on human health over time.

But despite finding the plaintiffs presented strong legal and policy arguments, the judge concluded the law denies him the flexibility to defer to their interpretation.

“Courts may not interpret statutes as imposing mandatory duties on agencies unless the mandate is clear and unequivocal,” Chhabria wrote.

Regarding other claims in the lawsuit, the EPA acknowledged the 1990 Clean Air Act amendments require it to review the best technology for controlling industrial emissions of hazardous air pollution every eight years.

In determining a timeline for those required reviews, Chhabria found a 30-month deadline is reasonable given the complexity of coke ovens and the agency’s staffing and budgetary constraints.

Sierra Club, Louisiana Bucket Brigade and Gasp, a Birmingham, Alabama-based environmental justice group, joined Citizens For Pennsylvania’s Future as plaintiffs in the lawsuit.

An EPA spokesperson said the agency is reviewing the decision.

Plaintiffs’ attorney Tosh Sagar of Earthjustice did not immediately respond to a request for comment Friday.

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