ELR Citation: 45 ELR 20059
No(s). 13-3105, 14-3479 (6th Cir. Mar 24, 2015)

The Sixth Circuit denied a cement company's petition to vacate an EPA rule requiring it to add more stringent air pollution controls at one of its portland-cement plants. The Michigan Department of Natural Resources and Environment had previously deemed the plant's pollution controls sufficient and excused it from any retrofitting requirement, but EPA disagreed and denied the company's request to reconsider. The company argued that if EPA had used a “case-by-case” analysis for assessing best available retrofit technology (BART), it would have learned that the plant's unique characteristics make the new technology ineffective. But EPA did engage in case-by-case review, and the final rule addresses the company's site-specific objections fairly and in detail. The company also argued that the plant was never BART-eligible in the first place and therefore cannot be subject to the new technology or any other retrofit emissions controls. But the company forfeited that argument by failing to raise it during the public comment period.