Judge Unlikely to Make EPA Update Pollution Rules for Coke Ovens

SAN FRANCISCO (CN) — A federal judge signaled Thursday he will likely reject a bid to make the U.S. Environmental Protection Agency update pollution standards for coke ovens — coal-processing plants that emit dozens of hazardous air toxins — because the agency’s duty under the law is “ambiguous.”

PennFuture and three other environmental groups sued the EPA in April last year, 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 claim 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.

During a hearing on dueling motions for summary judgment Thursday, U.S. District Judge Vince Chhabria, a Barack Obama appointee, said he was inclined to side with the EPA because Ninth Circuit precedent commands him to rule in the agency’s favor when the law is unclear.

“My tentative view is that the statute is ambiguous on this question, and that therefore you lose,” Chhabria said.

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

The plaintiffs say “promulgation” includes a follow-up review and revision of standards after eight years. The EPA insists that “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 reviews of existing standards.

Defending the EPA’s position, Justice Department lawyer Sydney Menees said Congress specifically chose to distinguish “promulgation” and “risk and review” as separate terms in various sections of the Clean Air Act.

“It only says that EPA has to do it after a promulgation whereas other provisions of the Act define what is clearly required after a revision,” Menees said.

Plaintiffs’ attorney Tosh Sagar of Earthjustice replied that accepting the government’s interpretation would lead to an absurd result because the same language requires eight-year reviews after standards are set for newly identified hazardous air pollutants.

Adopting the EPA’s reading would mean the agency has no obligation to periodically review standards required to protect public health from harmful air toxins, Sagar said.

The review requirement for that section of the Clean Air Act has never been tested because the EPA has never identified a new hazardous air pollutant since the law was amended in 1990, Menees told the judge.

Chhabria voiced concern that such an interpretation could allow the EPA to avoid periodically reviewing the health effects of a newly identified air toxin.

“Over time we learn more about the adverse effects of a pollutant on human health, or over time things may change,” the judge said.

Menees replied that the law does not forbid the EPA from reviewing risks associated with a specific air toxin or source of air pollution when necessary.

“It’s illogical that EPA wouldn’t open a risk review if certain new issues with risk were presented,” Menees said.

She added that the environmental groups could also file a citizen petition asking the agency to review the standards. The EPA is required to render a decision on such petitions within 18 months.

The plaintiffs are asking the judge to order the EPA to conduct a risk review for air pollution from coke ovens within 12 to 16 months.

The EPA says such a timetable is “unreasonable.”

Coke ovens are an especially complex source of industrial pollution with “a ton of different emissions points, not just a single smokestack,” Menees said. The EPA would need to visit coke ovens and analyze where different types of air toxins escape from each facility, she added.

“No case has ever imposed a 16-month limit that the plaintiffs are asking for a source category so it would be incredibly difficult for EPA to do that here,” Menees said.

The EPA says it would likely take at least three years to conduct such a review.

Sagar countered that multiple courts have rejected those same arguments in cases where the EPA was ordered to perform a task required by law. He added that the EPA failed to identify how many employees it would assign to work on the project.

“They’re not telling you how many employees they are assigning or how sensitive the schedule is,” Sagar said. “Is it one employee? How much faster could it go if you had two or three employees?”

After 80 minutes of debate, Chhabria took the arguments under submission.

Sierra Club, Louisiana Bucket Brigade and Gasp, a Birmingham, Alabama-based environmental justice group, joined PennFuture as plaintiffs in the lawsuit.

Follow @NicholasIovino

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