EPA Agrees to Finally Regulate Emissions from PVC Plants under Settlement with Sierra Club

Environmentalists get timeframe for second set of MACT regulations in two weeks

Earthjustice, Sierra Club, and a coalition of gulf coast community groups announced a settlement today with the EPA in which the agency promised that it will issue regulations governing emissions from PVC manufacturing facilities by 2011. The groups' press release can be read here, and Houston Chronicle coverage of the settlement here. This is the second commitment by EPA in two weeks to issue long-delayed regulations for a source category under the hazardous air pollutants (HAPs) provisions of the Clean Air Act (CAA).

PVC plants emit several toxins classified as HAPs, and which are therefore subject to the maximum available control technology (MACT) requirements added to the Clean Air Act in 1992. See CAA § 112(d)(2), codified at 42 USC § 7412(d)(2). See also 65 Fed. Reg. 76,958, 76,960 (Dec. 8, 2000) (official finding on HAPs emitted by PVC plants). Under the MACT provisions, once the decision was made that PVC plants were a source category covered by the HAPs provisions, see 57 Fed. Reg. 31576, 31591 (July 16, 1992), EPA should have issued MACT standards for each HAP they emit. See National Lime Association v. EPA, 233 F.3d 625, 634 (D.C. Cir. 2000) (CAA § 112(d)(1) establishes a “clear statutory obligation to set emission standards for each listed HAP” the source category emits). But by the end of the Clinton administration, EPA had only gotten around to issuing a proposed standard on vinyl chloride, based on a standard that ante-dated the 1992 introduction of the MACT scheme. See 65 Fed. Reg. 76,958. And when the Bush Administration finally finalized MACT regulations for PVC plants in 2002, they still maintained that those old vinyl chloride standards were the "maximum achievable control technology" for the plants, using the argument that vinyl chloride served as a surrogate for all the other HAPs. See 67 Fed. Reg. 45886 (July 10, 2002). (The surrogacy argument, in the MACT context, is that controlling for pollutant X also incidentally controls for the remainder of covered pollutants.)

The same group of environmental plaintiffs that participated in today's settlement sued in the DC Circuit to prompt the EPA to issue a full suite of HAPs regulations for the plants. In Mossville Environmental Action Now v. Whitman, 370 F.3d 1232 (D.C. Cir. 2004), the DC Circuit ruled that EPA had not sufficiently supported its argument that vinyl chloride could serve as a surrogate for the other HAPs emitted by PVC plants, and "vacated and remanded [the vinyl chloride regulation] to the agency for it to reconsider or properly explain its methodology for regulating HAPs emitted in PVC production other than vinyl chloride by use of a surrogate." Id. But EPA took no further regulatory action.

[Disclosure: Mossville was considered by the D.C. Circuit the year I clerked on that court, but I was not involved in the case.]

Plaintiffs sued again in late October 2008, this time bringing a suit challenging impermissible agency inaction under the APA in the U.S. District Court for the District of Columbia. (The complaint can be read here.) In today's settlement, EPA agreed that it would finally issue the MACT regulations required for PVC plants. Specifically, it agreed that it would issue a proposed rule by October 29, 2010, and a final rule by July 29, 2011.

One might be tempted to say all's well that ends well, except for the fact that environmental groups have had to drag MACT regulations out of EPA by means of litigation for most of the major source categories covered by that section of the CAA. (See, for instance, this earlier post, for the story on how groups have dragged EPA into issuing MACT regulations for power plants--something it just committed to doing two weeks ago.) And those MACT provisions were put in place by Congress in the 1992 Clean Air Act Amendments in an unusually dictatorial scheme meant to give EPA no choice but to stringently regulate 189 specifically listed toxins, because EPA had been dragging its feet on regulating emissions of those pollutants under a prior version of the Act. To give the Obama Administration its due, however, it does seem intent on making up for a whole lot of past inaction, and has committed to drafting quite an ambitious slate of regulations in the next few years.