Monday, June 9, 2008

Natural Resources Defense Council v. EPA

Jun 6: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-1053, Natural Resources Defense Council (NRDC) v. U.S. EPA, with American Chemistry Council intervenor. In short summary the Appeals Court explains that synthetic organic chemicals have few direct consumer uses, but they often serve as raw materials in the production of plastics, rubbers, fibers, protective coatings, and detergents. Petitioners, the NRDC and the Louisiana Environmental Action Network (LEAN), challenged EPA’s "residual risk" rulemaking under subsection 112(f) of the Clean Air Act for facilities that use or produce synthetic organic chemicals (the industry). Petitioners also challenged EPA’s technology review under subsection 112(d)(6). The Appeals Court said, "In a rather unusual bit of rulemaking, the agency determined by rule not to change its previous rule, which gave rise to petitioners’ challenge. We deny the petition."

Explaining further, after submitting a required report to Congress in 1999, EPA commenced residual risk rulemaking, apparently because it read the statute as requiring a rulemaking proceeding to consider whether to revise the technology-based standards, since the industry’s emissions pose lifetime excess cancer risks of "greater than one-in-one million."

In the notice of proposed rulemaking, EPA listed two options for the residual risk rulemaking, one of which would have imposed somewhat stricter standards. But the other, which EPA adopted in the final rule, was a reaffirmation of the existing rule. EPA determined that under the existing technology-based standard, no individual would face "an excess lifetime cancer risk of greater than 100-in-one million," which EPA regards as the “presumptively acceptable” level under its precedents.

In the same regulatory procedure, EPA sought to satisfy another statutory requirement, subsection 112(d)(6), which commands the Administrator to “review, and revise as necessary” the technology-based standards in light of technological developments at least every eight years. It concluded there were no such developments.

In conclusion, the Appeals Court said, "In sum, petitioners’ arguments boil down to one simple point: EPA could have used better data in conducting its risk analysis. Whether or not this is true, it misstates the inquiry under the arbitrary and capricious standard. . . In other words, the sole question before us is whether EPA has acted reasonably, not whether it has acted flawlessly. On the record before us, EPA explained why it chose to rely on industry-supplied data, and it reasonably responded to petitioners’ objections to its data analysis. . ."

In response, NRDC issued a release saying the court "upheld the Environmental Protection Agency’s refusal to protect American families from cancer risks posed by the chemical industry." NRDC said as a result it is launching a campaign "to force EPA to re-open scores of toxic air pollution regulations to correct public health and legal deficiencies identified by prior court rulings." NRDC said, “We are disappointed that the court sided with EPA’s refusal to protect the American people from cancer-causing toxic air pollution. While the Bush EPA will celebrate this perverse victory for polluters, today’s ruling is a loss for the American people and the fight against cancer.”

In the coming weeks, NRDC said it will submit a formal legal petition to the EPA Administrator demanding that EPA conduct rulemakings to strengthen the vast majority of existing toxic air pollution regulations that suffer from "common legal and health deficiencies. . . One such regulation is the 1994 rule governing the chemical industry that was part of the backdrop for today’s court decision." They said that previous lawsuits brought by NRDC and other environmental groups, have produced a series of court rulings from 2005-2007 that found the "EPA-created defects to be squarely in violation of the Clean Air Act."

The American Chemistry Council (ACC) applauded the decision. ACC President and CEO Jack Gerard said, “We are thrilled by the unanimous decision made by the panel judges. The business of chemistry represents the gold standard in responsible product management and is committed to continual emissions improvement. ACC helped defend EPA’s decision and we are pleased that the agency’s determination, based in sound science, was upheld.” ACC indicated that EPA’s 2006 residual risk and technology review rule was largely based on emissions data submitted by ACC member companies. ACC indicated that, "The rule affirmed that the application of maximum achievable control technology since 1994 has resulted in a substantial reduction of hazardous air pollutant emissions from the synthetic organic chemical manufacturing industry.

Access the complete 18-page opinion (
click here). Access a release from NRDC (click here). Access a release from ACC (click here).

Miami-Dade County v. EPA

Jun 6: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 06-10551, 10-574- 76, 10579, 10583. Miami-Dade County, four cities, and a regional wastewater treatment facility and the Sierra Club all petition for review a Final Rule promulgated by U.S. EPA that amended the current Federal underground injection control (UIC) requirements for Class I municipal disposal wells in Florida. The petitioners argued that the Final Rule conflicts with the plain language of the authorizing statute, that EPA’s approach to UIC regulation in South Florida is arbitrary and capricious, and that EPA gave insufficient notice of certain terms of the Final Rule in violation of the Administrative Procedure Act (APA). The Eleventh Circuit denied the petition.

Some of the many arguments raised by the petitioners include the following. The Sierra Club said EPA impermissibly considered the utility of underground injection of waste in comparison with other disposal options, and EPA failed to address the existence of several potential threats to human health posed by pathogens, nutrients, and other contaminants. The Municipalities and County complained that the Final Rule failed to take into account differences in Florida geology and hydrology. The County also argued that the Final Rule’s imposition of a high-level disinfection requirement, as opposed to some lower level of
disinfection, is arbitrary and capricious.

The Municipalities also argued that the Final Rule is not supported by the record due to four alleged flaws in the Risk Assessment’s methodology: (1) failure to consider the concentration of contaminants already present in the aquifers, (2) failure to employ a quantitative probabilistic risk analysis methodology, (3) failure to consider the results of a then-unpublished University of Miami study of well disposal practices, and (4) faulty assumptions about contaminant plumes. The criticisms were based on a review of the Risk Assessment performed by two scholars, a geologist, and a public utilities manager.

In a 49-page decision the Appeals Court said, "We conclude that the EPA afforded sufficient public notice of both the elimination of the non-endangerment demonstration requirement and the application of the Final Rule to new Class I wells as required by the APA. We further conclude that the petitioners have failed to show that the Final Rule is inconsistent with the statutory authority granted the EPA under the SDWA or that the Final Rule is unsupported by the record, or otherwise arbitrary and capricious."

Access the complete opinion (
click here).