Brick/Clay MACT: Environmentalists in a TKO Over Industry

Earlier this month, the D.C. Circuit Court of Appeals ruled on challenges to EPA’s National Emission Standards for Hazardous Air Pollutants from the brick and clay industries.  The Court granted the environmentalists’ petitions almost in their entirety and denied the industry petitions in their entirety.

The decision is not really surprising, because EPA had failed to justify a number of the decisions that it made.  Nonetheless, I don’t see the decision as a total loss for the regulated community.  Why not?  Chevron, that’s why!  The Court affirmed several of EPA’s interpretations of the statutory requirements that were favorable to the regulated community.  For example, the Court deferred to EPA’s interpretations of the statutory terms in section 112(d)(4) of the statute, providing that EPA may implement a health threshold-based emissions limit for “pollutants for which a health threshold has been established.”  The environmental plaintiffs still prevailed on their challenge, but only because, even under EPA’s interpretation of ambiguous statutory language, the record did not support EPA’s determination.

Even more significantly for future EPA decision-making, the Court affirmed EPA’s deference in determining how to include an “ample margin of safety” in setting health thresholds.  This is a critical issue in the Clean Air Act.  The question before the Court was whether EPA may comply with the requirement to provide an “ample margin of safety by including conservative assumptions in setting the threshold or whether, even after setting a conservative threshold, EPA must include “ample margin of safety” beyond the calculated threshold.  The Court agreed with EPA that it is a reasonable interpretation of the statutory requirement to make conservative assumptions in setting the threshold and that it did not need to provide an extra margin of safety beyond the calculated threshold.  (Once more, EPA lost on the merits, but only because the record indicated that EPA did not provide any margin of safety.)

I think that this is potentially a really important issue.  Those of us who represent regulated industries have complained for years about EPA’s tendency to pile conservative assumption on top of conservative assumption, leading to standards that seem to bear no real connection to any reasonable calculation of the risks actually posed by a compound or a situation.  The decision here seems to strike the perfect balance, requiring the agencies to comply with the statutory requirement to include an ample margin of safety, but not requiring the agencies to make every possible conservative assumption.

An ample margin of safety does not necessitate a risk-free world under the most conservative assumptions possible.

I just hope that this administration does not forget that it really does face statutory requirements to provide an ample margin of safety, even if it has some flexibility in how that margin is determined.

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