ELR Citation: 42 ELR 20233
No(s). 11-1113 (D.C. Cir. Nov 9, 2012)

The D.C. Circuit upheld an EPA rule that added the gold mine ore processing and production area source category to the list of source categories to be regulated under CAA §112(c)(6). CAA §112(c)(6) requires action by EPA on seven bioaccumulative hazardous air pollutants (HAPs), including mercury, the pollutant at issue here. CAA §112(c)(6) further requires EPA to list each pollutant's sources and to assure that sources accounting for not less than 90% of the aggregate emissions of each such pollutant are subject to standards under §112(d)(2) or §112(d)(4). Environmental groups argued that EPA erred in limiting the gold mine rule to mercury. They argued that CAA §112(c)(6)'s cross-reference to §112(d)(2) requires that EPA subject all HAPs emitted by a §112(c)(6) source—even those not enumerated in §112(c)(6)—to standards at the stringency level specified by §112(d)(2). But EPA reasonably determined that CAA §112(c)(6) does not require it to impose the same stringency levels in standards for non-§112(c)(6) HAPs occurring at §112(c)(6) sources that it does for §112(c)(6) HAPs. In addition, EPA's decision not to include fugitive emissions in the gold mine rule was not arbitrary or capricious. EPA reasonably concluded that the record before it provided insufficient information about the quantity of fugitive emissions or available methods of controlling them.