02 July 2020

District Court: Risk Assessment Not Required Every Time EPA Revises Clean Air Act Technology-Based Standard

On June 26, 2020, a federal district court ruled that the U.S. Environmental Protection Agency (EPA) is not required to perform a risk assessment every time it revises its technology-based standards for a hazardous pollution source. Rather, the EPA is required to conduct a risk assessment only in connection with its initial adoption.

EPA is required to set emissions standards based on the best-performing sources in each category and to review and potentially update those technology-based standards every eight years. Clean Air Act (CAA) Section 7412(f) mandates that EPA address residual risks “within 8 years after promulgation of standards.”

Environmental groups sued EPA alleging four CAA violations related to two source categories: Coke Ovens: Pushing, Quenching, and Battery Stacks, and Coke Oven: Batteries. For the first source category, plaintiffs claimed that EPA failed to perform an initial technology review and subsequent risk review. For the second source category, plaintiffs alleged that EPA failed to perform a technology review and a second risk review. EPA conceded that a follow-up technology review was overdue under the recurring eight-year deadline. However, EPA contended that the statute did not require a second risk review because this type of review is mandatory only in connection with the initial technology review.

In determining whether EPA violated a nondiscretionary duty by failing to perform a second risk review, the court sided with EPA. The court rejected plaintiffs’ interpretation that “promulgation” includes a follow-up review and revision of standards after eight years and accepted EPA’s interpretation that “promulgation” refers only to the initial rollout of new standards. In siding with the agency, the court noted that “Courts may not interpret statutes as imposing mandatory duties on agencies unless the mandate is clear and unequivocal.”