ELR Citation: 41 ELR 20358
No(s). 10-1358, -1359 (D.C. Cir. Dec 9, 2011)

The D.C. Circuit remanded EPA's NESHAPs for portland cement facilities. While EPA was establishing the NESHAPs, it was simultaneously developing a definition of commercial and industrial solid waste incinerators (CISWI), which would create a separate category of pollutant sources subject to emissions standards distinct from NESHAP. The CISWI rulemaking process would impact the NESHAP rulemaking because certain cement kilns would be subject to standards under the CISWI rules rather than under the NESHAP rules. Despite the fact that EPA realized the CISWI definition could potentially impact the NESHAP rule, the Agency ignored the ongoing CISWI process when it issued the NESHAP standards. It was therefore arbitrary and capricious for EPA to have set the NESHAP standard on the premise that all kilns would be subject to NESHAP while at the same time modifying the dataset to change that premise. Basing its decision on a premise the Agency itself has already planned to disrupt is arbitrary and capricious. Instead of treating the two rules as truly interdependent efforts and acknowledging their close correlation, EPA let each run its own course regardless of the collateral impact. Because EPA's treatment of the CISWI-NESHAP interaction was arbitrary and capricious, the court remanded the rule for further action consistent with this decision. And while the court declined to stay the NESHAP rule in its entirety, it did enter a stay of the NESHAP standards applicable to clinker storage piles because the Agency failed to give sufficient notice of those standards. The court, however, denied the cement manufacturers' petition challenging EPA's new source performance standards (NSPS) for portland cement facilities. The court also held that it lacked jurisdiction over environmental petitioners' claims challenging EPA's failure to adopt greenhouse gas emissions standards as part of its portland cement NSPS.