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The U.S. Environmental Protection Agency (EPA) faces a mile-high backlog of Clean Air Act (CAA) Risk and Technology Reviews (RTRs) to complete, and quickly. RTRs are the checks EPA must conduct every eight years for every National Emission Standard for Hazardous Air Pollutants (NESHAP)1 it sets, to be sure that the standards are adjusted—if necessary—to address any residual risk and any developments in emission reduction techniques. Through easy victories in deadline lawsuits, environmental non-governmental organizations (ENGOs) have gotten EPA on aggressive court-ordered deadlines for completing the RTRs. Based on EPA’s website and a review of known pending deadline suits, we estimate that 40 RTRs are completed and six are in process.


Table 1 summarizes our projection of EPA’s schedule for proposing and finalizing RTRs.

EQ summer 2017 article 3 Table 1

In addition to RTRs yet to be done, EPA faces a backlog of work on final RTRs that are being challenged in petitions for administrative reconsideration and in the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit). At least nine cases challenging final RTRs are pending and in abeyance as EPA tries administratively to resolve issues in each case.5 Once they are squarely before the Court, judicial opinions in these cases will provide additional guidance and set expectations for future RTRs. For now, EPA’s interpretation of the statute is guided by only three DC Circuit opinions in challenges to RTR rules: the Hazardous Organic NESHAP (HON) RTR (NRDC v. EPA, 2008); the NESHAP from Secondary Lead Smelting (Secondary Lead) RTR (ABR v. EPA, 2013); and the Chromium RTR (NASF v. EPA, 2015). 6

The task of conducting an RTR as set out by Congress in the Clean Air Act is deceptively simple. For the one-time §112(f)(2) risk review, within eight years of issuing an emission standard under §112(d) EPA must re-issue standards if they are “required” (1) to protect public health with an ample margin of safety or (2) to prevent an adverse environmental effect, considering costs, energy, safety and other relevant factors. For the §112(d)(6) technology review (recurring every eight years), EPA must revise standards “as necessary,” considering “developments in practices, processes, and control technologies.” Yet, as with any element of the Clean Air Act, every statutory term presents differences of interpretation among regulated parties, ENGOs, states, and EPA that will be resolved only through litigation.

Guidance From RTR Cases as of July 2017

Discussed below are lessons from the three RTR cases to date, which demonstrate overall deference to EPA by the DC Circuit.EQ summer 2017 article 3 Img 2

  1. The statute does not require EPA to recalculate the MACT floor, and thereby does permit EPA to consider cost when revising the standards under §112(d)(6). Not everyone, however, considers this settled law.

    ENGOs have argued in each RTR case that when EPA conducts a technology review under §112(d)(6), the revised (or unrevised) standards are “promulgated” under §112(d), and EPA must re-calculate the MACT floor. ENGOs have also made the corresponding argument that EPA cannot consider the cost to industry of meeting the standards, because cost cannot be considered in setting MACT floors. Each time, the Court has disagreed and upheld EPA’s initial interpretation of §112(d)(6) that the statute does not require EPA to “start from scratch” and newly calculate the floor without considering costs, even where EPA has identified new practices or technology and revised the standards.7 In the most recent RTR case, ENGOs renewed their argument that EPA must reset floors. They also requested the extraordinary measure of review by the full Court on that issue, arguing that the Court had never addressed that particular statutory argument. Although the Court denied that request, Judge Pillard, writing for the Court, did hint in a footnote that if EPA had initially interpreted §112(d)(6) to require a new floor calculation, the Court may have found that interpretation valid.8 Thus, for now, the law does not require resetting floors when EPA revises standards in a §112(d)(6) technology review, but ENGOs will likely continue to pursue reversal of the precedent.

  2. What constitutes a “development” in practices, processes, or technology sufficient to support EPA’s “necessary” change to the standards under §112(d)(6) need not be much; however, by the same token, the mere identification of technological improvements does not compel EPA to change the standards.

    Where EPA concludes that developments in practices or technologies warrant revised, tighter standards, “developments” may include improved facility performance, even where no new technology is identified. In the Chromium RTR, for example, EPA tightened the standards not on the basis of new technology but on the basis of data showing some facilities were achieving lower HAP emissions. Industry argued that the emission reductions were simply due to the application of the controls that were installed to meet the initial MACT standards. The Court validated EPA’s approach of justifying tighter standards based on the “collective impact” of all improvements, stating that EPA need not show a nexus between each “development” and revisions to the standards.9

    On the other hand, even where technological improvements are identified, EPA can demonstrate that they do not necessitate revisions to the standards. In the Secondary Lead RTR, EPA considered whether standards should be revised to reflect the adaptation of two technologies: high-efficiency particulate air filters and wet electrostatic precipitators. After considering cost, environmental benefit and adverse impacts, and other factors, EPA determined that the technologies were not appropriate and revisions to the standards were not needed. ENGOs challenged EPA’s decision as arbitrary, but the Court found EPA’s explanation and decision not to revise the standards reasonable.10

  3. Where EPA concludes in a §112(f)(2) review that an ample margin of safety to protect public health “requires” tighter standards, EPA’s conclusion is not a threshold finding based only on public health. Rather, whether there is an “ample margin of safety” is a “context-based determination” and EPA may consider all of the statutory factors—public health, cost, economic impact, technological feasibility and other relevant factors.11 Both the plain text of the statute and EPA’s explanation of what §112(f)(2) requires have led to the understanding that EPA must make two distinct findings12. First, EPA must find, based only on public health concerns, that a revision of the standards is necessary. And second, EPA must determine what the revisions should be, considering costs, energy, safety, and other relevant factors. However, courts considering the lawfulness of EPA’s §112(f)(2) conclusions have not demanded this bifurcated approach.

    EPA had proposed in 2010 not to revise the standards in the Chromium RTR, finding that the existing standards amply protected public health; however, in a supplemental proposal and in the final rule in 2012, EPA reversed its finding and tightened the standards by 80%. Industry objected to EPA’s changed position, because the record showed public health risks in 2012 were the same or lower than in 2010.13 The Court rejected industry’s argument that EPA had skipped the first step in §112(f)(2) of determining that tighter standards were “required” to protect public health. The Court first pointed out record evidence that EPA understood it must revise standards where “required” to protect public health. Then the Court reasoned that what triggered EPA’s obligation was the agency’s “further consideration and context-based determination that additional risk reductions can be achieved cost-effectively and in light of other statutorily relevant factors.”14 Here, the Court endorsed EPA’s blurring the line between two apparently distinct analyses: 1) what is safe for public health, and 2) what emission reductions can be accomplished in light of cost, energy, safety, and other factors. The Court found support for this approach in the earlier HON RTR case NRDC v. EPA, which permitted EPA’s analysis of “ample margin of safety” to include consideration of other factors including cost, economic impact, and feasibility.15 These cases indicate that, for now, when analyzing the safety of public health under §112(f)(2), EPA can consider any relevant factors to support its decision to revise standards (Chromium RTR) or not to revise standards (HON RTR).

  4. Where EPA relies jointly on technology §112(d)(6) and risk §112(f)(2) reviews as bases for revised standards, a party must successfully challenge both aspects of EPA’s rationale to have the standards overturned. This point was made at oral argument in the Chromium RTR case, and was referenced by the Court in its opinion.16 Because EPA invoked both §112(d)(6) and §112(f)(2) to support the revised standards, even if the Court had found fault with either the risk or the technology review, the revised standards would have been upheld. Given this, EPA is likely to build a risk/technology fortress around all forthcoming RTR rules by supporting them with rationales under both statutory provisions.


While at present there is scant judicial guidance on EPA’s interpretation of the NESHAP §112(d)(6) technology and §112(f)(2) risk review provisions, what guidance there is heavily favors judicial deference to EPA. The DC Circuit has denied or dismissed for lack of standing all petitions in the three cases involving challenges to RTR rules. The Court has also issued opinions that give EPA a wide berth for determining whether revisions to the standards are “required” or “necessary,” defining what constitutes an ample margin of safety for public health and defining what constitute “developments” to justify decisions to revise or not revise standards. For now, the Court also appears to be solid on not requiring EPA to re-set floors and thereby on permitting EPA to consider cost in setting or re-issuing MACT standards in RTR rules. Future RTRs will likely be supported by joint technology and risk rationales, almost by invitation from the Court, which greatly enhances their defensibility. If this judicial inclination holds, EPA may be able to meet the grueling Court-ordered deadlines for completing the remaining RTRs.

Yet, the DC Circuit could become more taxing on EPA in the next wave of RTR challenges now pending before the Court. If the Court begins to vacate or remand specific elements of forthcoming RTRs, EPA could be forced to take voluntary remands of other RTRs in the pipeline that include the elements vacated or questioned by the Court. If that happens, EPA could face a backlog of not only RTRs but also re-dos of RTRs and may need to seek extensions of deadlines.

  1. NESHAPs are also commonly referred to as MACT (maximum achievable control technology) standards.
  2. Community In-Power and Development Assoc. v. EPA, No. 16-1074 (D.D.C.). The 9 RTRs are Mercury Emissions from Mercury Cell Chlor-Alkali Plants, IIIII; Semiconductor Manufacturing, BBBBB; Generic MACT II – Cyanide Chemicals, YY; Generic MACT II – Spandex Production, YY; Generic MACT II – Carbon Black Production, YY; Primary Copper Smelting, QQQ; Flexible Polyurethane Foam Fabrication Operations, MMMMM; Refractory Products Manufacturing, SSSSS; and Primary Magnesium Refining, TTTTT.
  3. California Communities Against Toxics v. EPA, No. 15-0512 (March 13, 2017 D.D.C.). The 20 RTRs are Solvent Extraction for Vegetable Oil Production, GGGG; Boat Manufacturing, VVVV; Surface Coating of Metal Coil, SSSS; Cellulose Products Manufacturing, UUUU; Generic MACT II - Ethylene Production, YY, XX, UU; Paper and Other Web Coating, JJJJ; Municipal Solid Waste Landfills, AAAA; Hydrochloric Acid Production, NNNNN; Reinforced Plastic Composites Production, WWWW; Asphalt Processing and Asphalt Roofing Manufacturing, LLLLL; Integrated Iron & Steel Manufacturing, FFFFF; Engine Test Cells/Stands, PPPPP; Site Remediation, GGGGG; Miscellaneous Organic Chemical Manufacturing, FFFF; Surface Coating of Metal Cans, KKKK; Surface Coating of Miscellaneous Metal Parts and Products, MMMM; Organic Liquids Distribution (Non-Gasoline), EEEE; Stationary Combustion Turbines, YYYY; Surface Coating of Plastic Parts and Products, PPPP; and Surface Coating of Automobiles and Light-Duty Trucks, IIII.
  4. Blue Ridge Environmental Defense League v. EPA, No. 16-0364 (D.D.C.). The 13 RTRs are Leather Finishing Operations, TTTT; Wet-Formed Fiberglass Mat Production, HHHH; Rubber Tire Manufacturing, XXXX; Surface Coating of Large Appliances, NNNN; Friction Materials Manufacturing Facilities, QQQQQ; Surface Coating of Metal Furniture, RRRR; Surface Coating of Wood Building Products, QQQQ; Printing, Coating, and Dyeing of Fabrics and Other Textiles, OOOO; Taconite Iron Ore Processing, RRRRR; Miscellaneous Coating Manufacturing, HHHHH; Lime Manufacturing Plants, AAAAA; Iron and Steel Foundries, EEEEE; and Plywood and Composite Wood Products, DDDD.
  5. American Petroleum Institute (API) v. EPA, No. 12-1405 (DC Cir.) (Oil and Natural Gas sector) (abeyance until August 18, 2017); American Chemistry Council (ACC) v. EPA, No. 14-1083 (DC Cir.) (Group IV Polymers and Resins; Pesticide Active Ingredient Production; Polyether Polyols Production) (abeyance pending administrative reconsideration); Georgia-Pacific LLC v. EPA, No. 14-1267 (DC Cir.) (Generic MACT Standards; Manufacture of Amino/Phenolic Resins RTR) (abeyance pending administrative reconsideration); ACC v. EPA, No. 15-1146 (DC Cir.) (Off-Site Waste and Recovery Operations (OSWRO) RTR) (abeyance pending fulfillment of settlement requirements; if given enough information by petitioner, EPA must issue a proposed rule on pressure relief devices July 20, 2017 and a final rule January 18, 2018); Eramet Marietta Inc. v. EPA, No. 17-1090 (DC Cir.) (Ferroalloys Production RTR) (petitions for administrative reconsideration filed; parties discussing administrative options for resolving remaining claims); The Fertilizer Institute v. EPA, No. 15-1352 (DC Cir.) (Phosphoric Acid Manufacturing and Phosphate Fertilizer Production RTR) (abeyance pending administrative reconsideration); Kaiser Alum. Fabricated v. EPA, No. 15-1423 (DC Cir.) (Secondary Aluminum RTR) (stayed for mediation); American Fuel and Petrochemical Manufacturers (AFPM) v. EPA, No. 16-1033 (DC Cir.) (Petroleum Refinery Sector RTR) (abeyance pending administrative reconsideration); Aero MACT Group v. EPA, 16-1040 (DC Cir.) (Aerospace Manufacturing and Rework Facilities RTR) (abeyance pending administrative reconsideration).
  6. Nat’l Resources Defense Council (NRDC) v. EPA, 529 F.3d 1077, 1084 (DC Cir. 2008) (HON RTR) (standards not revised by RTR; statute cannot be “construed reasonably” as requiring EPA to recalculate the floor); Assoc. of Battery Recyclers, Inc. (ABR) v. EPA, 716 F.3d 667 (DC Cir. 2013) (Secondary Lead RTR) (standards revised based on §112(d)(6) technology review); Nat’l Assoc. for Surface Finishing (NASF) v. EPA, 795 F.3d 1 (DC Cir. 2015) (Chromium MACT) (standards revised based on §112(d)(6) technology and §112(f)(2) risk reviews).
  7. NRDC v. EPA, 529 F.3d 1077, 1084 (DC Cir. 2008) (HON RTR) (standards not revised by RTR; statute cannot be “construed reasonably” as requiring EPA to recalculate the floor); ABR v. EPA, 716 F.3d 667 (DC Cir. 2013) (Secondary Lead RTR) (standards tightened in RTR; EPA not obligated to recalculate floor, citing binding precedent of NRDC v. EPA); NASF v. EPA, 795 F.3d 1 (DC Cir. 2015) (Chromium RTR) (standards tightened by RTR; floor recalculation not compelled, citing EPA’s original interpretation and binding precedent).
  8. NASF v. EPA, 795 F.3d at n. 3 (DC Cir. 2015) (Chromium RTR).
  9. NASF v. EPA, 795 F.3d at 11.
  10. ABR v. EPA, 716 F.3d at 673.
  11. NASF v. EPA, 795 F.3d at 16 (citing NRDC v. EPA).
  12. See e.g., National Emissions Standards for Hazardous Air Pollutants for Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite, and Stand-Alone Semichemical Pulp Mills, 81 FR 97046 at 97050 (Dec. 30, 2016) (proposed RTR rule).
  13. NASF v. EPA, 795 F.3d at 16.
  14. NASF v. EPA, 795 F.3d at 16.
  15. NASF v. EPA, 795 F.3d at 16 (citing NRDC v. EPA at 1083).
  16. NASF v. EPA, 795 F.3d at n. 8.