Natural Resources Defense Council v. EPA

529 F.3d 1077 (2008)

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Nature of the Case

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Facts

The amended version of section 112 provides a list of 191 substances that Congress deemed to be hazardous. D could subsequently add to or subtract from this list. D was required to adopt technology-based standards by looking at the best available control technology to control emissions for each category of major sources that emits one or more of the listed hazardous air pollutants. Under 'maximum achievable control technology' or 'MACT,' standards for new sources may not be less stringent than 'the emission control that is achieved in practice by the best controlled similar source.' For existing sources, the emission standards may not be less stringent than 'the average emission limitation achieved by the best performing 12 percent of the existing sources.' After setting the minimum required reduction in emissions for a new or existing source-D has discretion to require an even greater reduction in emissions, taking into account costs, health effects, environmental effects, and energy requirements. D was obliged to review any residual health risks that had not been eliminated by the initial technology-based standards. D must set a standard based on a medical assessment of a given pollutant's health risks, rather than the current state of control technology. D promulgated technology-based emission standards. Those standards required the use of control technologies such as recovery devices, thermal oxidizers, carbon absorbers, and steam strippers. D then commenced residual risk rulemaking. D determined that under the existing technology-based standard, no individual would face an excess lifetime cancer risk of greater than 100-in-one million, which D regards as the 'presumptively acceptable' level under its precedents. D also sought to satisfy subsection 112(d)(6), which commands D to 'review, and revise as necessary' the technology-based standards in light of technological developments at least every eight years. D concluded there were no such developments. Ps contend that the statute obliged D, in the residual risk rulemaking, to tighten the standards for the industry so that the lifetime excess cancer risk to exposed persons would be no greater than one-in-one million.