Daniel Bourgault
Associate Editor
Loyola University of Chicago School of Law, JD 2022
On October 13, 2020 Earthjustice filed a petition for review with the D.C. Circuit Court of Appeals on behalf of a coalition of environmental groups and scientists asserting that a Final Rule promulgated by the Environmental Protection Agency (“EPA”) failed to adequately regulate certain carcinogenic emissions as required by the Clean Air Act. The Miscellaneous Organic Chemical Manufacturing (“MON”) rule, effective as of August 12, 2020, regulates toxic emission of about 200 chemical plants which release dangerous carcinogens including ethylene oxide which have been shown to be contributing to cancer hotspots around the country. However, the petitioners contend that the final MON rule fails to properly regulate unacceptable levels of risk posed by ethylene oxide and the other carcinogens released by MON facilities.
EPA’s regulatory obligations under the CAA
The Clean Air Act (“CAA”) requires the EPA to regulate hazardous air pollutants released from MON facilities through a two phase approach in order to protect the public health. This two phase approach requires the EPA to: (A) identify “source categories”, or sources of toxic air emissions in an industry group, and develop initial maximum achievable control technology (“MACT”) standards for each source category; and (B) within (8) years of developing the initial MACTs, the EPA must perform a risk and technology review (“RTR”) to determine whether the MACT standards provide an ample margin of safety to protect the public health and protect against adverse environmental impacts, and whether there have been any new developments or improvements in emission controls/preventions. If phase two reveals unacceptable remaining health risks or new improvements in emission controls, the standards must be reviewed and revised as necessary.
EPA’s failure to meet its regulatory obligations
The EPA’s first failure to meet its obligations was a failure to timely perform an RTR of the MON rule. The EPA first promulgated the MACT standards for toxic emissions released by MON facilities in 2006. According to the rules set out by the CAA outlined above, this meant that the EPA was required to perform an RTR by 2014. However, the EPA did not perform an RTR on its regulatory standards of the MON rule until 2017 only after a group of environmental advocacy organizations brought suit to compel the EPA to perform is regulatory obligation. As a result, the EPA conducted a residual risk assessment in 2019 and determined that ethylene oxide released from MON facilities presented an unacceptable risk to communities neighboring the factories. Other studies conducted by the EPA and other regulatory agencies also affirmed the carcinogenic dangers ethylene oxide presented.
According to the latest National Air Toxics Assessment (“NATA”), conducted in 2014 and released in 2018, ethylene oxide presented a much higher risk of cancer to communities than previously believed. The CAA identifies levels of cancer risk exceeding 100-in-1-million as an unacceptable level, and the NATA identified levels of 200-in-1-million areas with high levels of ethylene oxide emissions from MON facilities. However, although the EPA did promulgate a final MON rule, it does not revise the standards to properly curb those unacceptable levels and leaves loopholes open which permit unmonitored ethylene oxide emissions in certain circumstances. Ultimately the rule fails to require further emission reductions to eliminate the unnecessary risk the emissions pose and attempts to justify this in that the higher levels of risk only affect a small number of people.
The EPA’s final MON rule fell further short of its regulatory obligations in failing to revise the standards to incorporate new technological emission control developments. Fenceline monitoring is a new emissions monitoring technology that allows a MON or other chemical producing facility to monitor the levels of toxic emissions at the boundary of the property, putting facilities on notice to any levels of carcinogenic emissions that might reach and affect neighboring communities. Although the EPA recognized fenceline monitoring as a relevant development, the final rule did not revise the standards to incorporate it. As argued in the Petition for Reconsideration of the final MON rule, the EPA’s failure to incorporate new emission control developments violated their regulatory duty under the CAA.
Ultimately, the petition seeks to compel the EPA to revise the final MON rule in order to require emission reductions of the unacceptable levels of cancer-causing pollutants such as ethylene oxide, and to incorporate the available emission control developments to more closely monitor carcinogenic emission levels. The CAA requires the EPA to implement the maximum achievable control technology to mitigate carcinogenic emissions the highest extent, and the EPA’s final MON rule does not meet that obligation. As long as we continue to see climate-change skeptics and fossil fuel lobbyists being placed in positions of power in agencies responsible for environmental regulation such as the EPA and the National Oceanic and Atmospheric Administration (“NOAA”), we will continue to rely more and more on private entities to enforce environmental and public health protections and regulations.