State of New Jersey v. EPA A Case Study in Politics v. Statutory Language. Mary Ellen Hogan Holme Roberts & Owen LLP Los Angeles, California. Road Map for Presentation. Summary of Case Statutory Framework under Clean Air Act Chronology of Events Key Issue(s) Before the Court
Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.
Mary Ellen Hogan
Holme Roberts & Owen LLP
Los Angeles, California
The issue that the D.C. Circuit decided was whether once EGUs were listed as a HAP source in December 2000, could EPA “delist” EGUs as a HAP source without following the steps required in Section 112(c)(9)?
Answer: Unanimous NO
To list a source category for HAP from EGUs, EPA must find that such regulation is “appropriate and necessary” after considering the results of a source-specific study.
Before listing EGUs as a HAP source under Section 112:
“...the Admin shall perform a study of hazards to public health... as a result of emissions by [EGUs] of [listed pollutants including mercury]...The Admin shall regulate [EGUs] under this section if the Admin finds such regulation is appropriate and necessary after considering the results of the study required by this subparagraph.”
EPA may delete any source category from the HAP source list only after determining that emissions do not exceed a level which is adequate to protect public health with an ample margin of safety and no adverse environmental effect will result from emissions from any source.
“The Admin may delete any source category from the [section 112(c)(1) list]... whenever the Admin...[determines] that emissions from no source in the category or subcategory concerned...exceed a level which is adequate to protect public health with an ample margin of safety and no adverse environmental effect will result from emissions from any source.”
Response: If EPA’s argument is correct, it renders section 112(c)(9) – which defines how to delete a source category - superflous because EPA could always delist the source by finding that the listing criteria (“appropriate” and “necessary”) were incorrect!
EPA’s Petition for Rehearing
was DENIED on May 20, 2008