Yesterday, the D.C. Circuit Court of Appeals remanded EPA’s MACT standards for PCBs, polycyclic organic matter, and hexachlorobenzene to EPA. Rather than setting specific MACT standards for these compounds, EPA regulated them through “surrogates,” commonly particulate matter. The Sierra Club and others argued that EPA did not adequately justify the use of surrogates.
The three-part test for the adequacy of a surrogate is clear and worth repeating:
(1) the relevant hazardous air pollutant is invariably present in the proposed surrogate;
(2) control technologies for the proposed surrogate indiscriminately capture the relevant HAP along with other pollutants; and
(3) the control of the surrogate is the only means by which facilities achieve reductions in emissions of the hazardous air pollutant.
Here, while EPA provided some explanation for its basis in utilizing surrogates, it failed to respond to any of the comments it received on its proposed determination. Instead, EPA basically interpreted the attack on the surrogates as an attack on the original underlying standards, and concluded that it did not need to respond to such comments. Not so fast, said the Court.
EPA cannot hide behind the established nature of the standards it uses when it applies new surrogacy relationships.
The lesson from this one may be basic, but it’s still important. EPA really does have to respond to comments as a regulation may move from proposal to final rule. Failing to do so provides an easy argument by a plaintiff that the final rule was arbitrary and capricious.
One final note. Don’t try to blame Donald Trump or Scott Pruitt for this one. The decision to rely on surrogates and the proposed and final determinations were all performed under the prior administration.