On April 8, 2015, a coalition of nine environmental organizations from California, Louisiana, Oregon and Ohio filed a Clean Air Act (CAA) citizen suit against US EPA in the District of Columbia alleging US EPA failed to “review, and revise as necessary” air toxics standards for 21 source categories under CAA § 112(d)(6).  The environmental organizations also allege US EPA failed to either promulgate residual risk standards for these same source categories or determine such standards are unnecessary under CAA § 112(f)(2).  Source standards identified in the complaint include: Ethylene Production (Subparts UU, XX, YY); Paper and Other Web Coating (Subpart JJJJ); Integrated Iron and Steel Manufacturing (Subpart FFFFF); and Miscellaneous Organic Chemical Manufacturing (Subpart FFFF), among others.

Section 112(d) of the CAA requires US EPA to establish emissions standards for each “category…of major sources and area sources of hazardous air pollutants….”  To date, US EPA has established national emission standards for hazardous air pollutants (NESHAPS) for over 130 source categories.  After promulgation of these standards, the CAA requires the Agency to “review, and revise as necessary (taking into account developments in practices, process, and control technologies), emission standards promulgated under [section 112] no less often than every 8 years.”

Section 112(f)(1) of the CAA requires US EPA to submit a report to Congress discussing the public health risks likely to remain after promulgation of the NESHAPs under CAA § 112(d).  The report must include recommendations for legislation to address any remaining risks.  US EPA submitted a report under this section in 1999, but the Complaint alleges Congress has not taken any action on the recommendations.  If Congress fails to act, CAA § 112(f)(2) requires US EPA to establish additional air toxics standards for each source category if they are necessary to “protect public health” “with an ample margin of safety” or “to prevent, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental effect.”  These are known as “residual risk” standards.  US EPA must promulgate such standards for any source category that emits a known, probable, or possible human carcinogen if the existing NESHAPs do not reduce lifetime excess cancer risks to the most exposed individuals to less than one in one million.  If the Agency determines that residual risk standards are necessary, it must promulgate them within 8 years of the NESHAP for that source category.

The environmental organizations have asked the district court for a declaration that US EPA’ duties under CAA § 112(d)(6) and § 112(f)(2) are nondiscretionary, and that US EPA’s failure to promulgate such standards to date for the 21 listed source categories is a violation of the CAA.  The environmental organizations are also seeking a deadline by which US EPA must either promulgate standards, or determine standards are not necessary, under both CAA § 112(d)(6) and § 112(f)(2).

The residual risk and technology review standards may have significant regulatory implications for the targeted source categories. US EPA is currently undertaking residual risk and technology reviews for six source categories not named in the citizen suit and is using this opportunity to eliminate the startup, shutdown, and malfunction (SSM) exemptions for these source categories.  See, e.g., 79 Fed. Reg. 68012, 68015-16 (Nov. 13, 2014).  US EPA has been grappling with the SSM issue since Sierra Club v. EPA, 479 F.3d 875, 876 (D.C. Cir. 2007), which US EPA views as barring the exemption.  If the citizen suit succeeds in forcing the Agency to promulgate standards on an expedited schedule, the listed source categories may not only be facing more stringent emission standards, but also the loss of existing SSM exemptions.