In a case decided by the U.S. Court of Appeals for the D.C. Circuit, EPA’s residual risk standards to control emissions of hazardous air pollutants (HAPs) from secondary lead smelters (January 5, 2012, FR) withstood multiple legal attacks from both industry and environmental groups (Association of Battery Recyclers, Inc., et al. v. EPA). 

The industry claims involve the Agency’s use of a criteria air pollutant (elemental lead) in setting a HAP standard, requirements affecting fugitive air emissions, the imposition of a requirement for continuous emissions monitoring (CEM), a 2-year compliance deadline, and whether the Agency should have considered other regulations affecting the industry. 
The environmental petitioners claim that the EPA should have recalculated the maximum achievable control technology (MACT) floor used in the rulemaking, illegally considered cost in setting the residual risk standard, and also illegally failed to incorporate certain technologies into the rulemaking.

Industry claims

• Elemental lead.  Industry contended the rule impermissibly (1) specified a testing method that measures the mass of elemental lead (rather than the mass of lead compounds) in a source’s emissions and (2) set HAP emissions standards at levels designed to attain the primary lead National Ambient Air Quality Standards (NAAQS).  The D.C. Circuit ruled that the first claim was time-barred because the EPA used the same testing method in setting the original MACT for the sector in 1995.  The court also rejected the second argument because the rule in no way alters the lead NAAQS.
• Fugitive emissions.  Industry claimed the EPA erred in the methodology it used to calculate fugitive emissions and impose a total enclosure requirement.  The court noted that EPA’s methodology actually underestimated fugitive emissions; therefore, petitioners did not experience injury from the requirement, disqualifying the claim.
• CEMS.  The court denied industry’s attempt to find the CEMS requirement arbitrary and capricious because the EPA has not yet issued performance specifications for CEMS in the sector.  Therefore, any attack on the CEMS requirement is premature, said the court.  The court also gave credence to EPA’s explanation that the public would be allowed to comment on any upcoming proposal to activate a CEMS requirement. 
• Deadline.  The EPA refused to grant industry’s request for a 3-year compliance timeline.  The D.C. Circuit found that the EPA has the authority under the residual risk provisions in CAA Section 112(f) to compel compliance in no more than 2 years.
• Consideration of other controls.  The court stated that the CAA requires that the EPA revise the MACT based on developments in practices, processes, and control technologies and that consideration of public health objectives or risk reduction achieved by additional controls is not required.

Environmental claims

• Recalculating the MACT floor.  The “MACT floor” is defined as the emissions reductions achieved in practice by the best performing facilities in a sector.    The D.C. Circuit found that the CAA imposed no obligation on the EPA to recalculate the MACT floor developed for the 1995 rule when constructing a residual risk rule. 
• Cost.  The argument that the EPA illegally considered cost in setting residual risk standards was rejected by the court.  The panel pointed out that since the MACT was not recalculated, cost consideration was appropriate under the residual risk provisions.
• Technology.  Petitioners stated that the EPA should have considered certain technological developments, specifically high efficiency particulate air (HEPA) filters and wet electrostatic precipitators.  The D.C. Circuit responded:  “EPA reasonably explained that further reductions were unwarranted due to concerns about the feasibility, utility, cost-effectiveness, and adverse collateral environmental impacts associated with this technology, and petitioners point to no ‘clear error of judgment’ reflected in this reasoning.”

Click here for the D.C. Circuit’s opinion in Association of Battery Recyclers, Inc., et al. v. EPA.