Sierra Club v. EPA

Sierra Club v. EPA

Opinion

 [*1021]  [**98]   On Petitions for Review of a Final Action of the Environmental Protection Agency

ROGERS, Circuit Judge: Petitioners challenge the final rules promulgated by the Environmental Protection Agency exempting major sources of air pollution from normal emission standards during periods of startups, shutdowns, and malfunctions  [***2] ("SSM") and imposing alternative, and arguably less onerous requirements in their place. ¹ Because the general duty that applies during SSM events is inconsistent with the plain text of section 112 of the Clean Air Act ("CAA"), even accepting that "continuous" for purposes of the definition of "emission standards" under CAA section 302(k) does not mean unchanging, the SSM exemption violates the CAA's requirement that some section 112 standard apply continuously. Accordingly, we grant the petitions and vacate the SSM exemption.

] CAA section 112 designates over one hundred pollutants as "hazardous," 42 U.S.C. § 7412(b)(1), and directs the Administrator of EPA to list all categories of "major sources" of hazardous air pollutants ("HAPs"), id. § 7412(c)(1), and to establish for each "emissions standards" requiring "the maximum degree of reduction in emissions," id. § 7412(d)(2). These controls are referred to as maximum achievable control technology ("MACT") standards. See Natural Resources Def. Council v. EPA, 376 U.S. App. D.C. 528, 489 F.3d 1364, 1368 (D.C. Cir. 2007). Section 112 also sets a "MACT floor," id., requiring that standards "shall not be less stringent  [***3] than the emission control that is achieved in practice by the best controlled similar source," 42 U.S.C. § 7412(d)(3). After eight years, under section 112(f), EPA is to revisit and potentially revise the emissions standards for each source category to ensure that they "provide an ample margin of safety to protect public health," id. § 7412(f)(2)(A). ] "Emission standard" is defined in section 302(k) as "a requirement established by the State or the Administrator which limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis, including any requirement relating to the operation or maintenance of a source to assure continuous emission reduction, and any design, equipment, work practice or operational standard promulgated under this chapter." 42 U.S.C. § 7602(k).

 [*1022]  [**99]   In addition to revising section 112, the 1990 Amendments also added ] Title V, which establishes a permit program to better monitor compliance with emissions standards. "Each permit . . . shall include enforceable emission limitations and standards, a schedule of compliance, . . . and such other conditions as are necessary to assure compliance with applicable requirements of this chapter." Id.  [***4] § 7661c(a). Sources are required to certify that they are in compliance with the applicable requirements of the permit "and to promptly report any deviations from permit requirements to the permitting authority." Id. § 7661b(b)(2). Title V further creates a "permit shield" for sources, ensuring that compliance with the permit is "deemed compliance with other applicable provisions" of the CAA. Id. § 7661c(f). "Any permit application, compliance plan, permit, and monitoring or compliance report" under Title V must be "ma[d]e available to the public." Id. § 7661a(b)(8).

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