This case involves the statutory obligations of the EPA to set maximum achievable control technology (MACT) standards for emissions under Clean Air Act Sec. 112(d)(6), specifically for chromium electroplating and anodizing operations. EPA is in the early stages of implementing that section, which applies when EPA reviews standards every 8 years. Because this review process applies to many other substances regulated by EPA, the decision in this case will extend far beyond chromium use.
At issue is what the statute requires of EPA when determining whether to tighten an existing standard. The NAM filed an amicus brief arguing that the statute specifically requires EPA to revise a standard, when conducting a technology review, only when "necessary (taking into account developments in practices, processes, and control technologies)." In this case, EPA's approach did not square with the plain statutory requirements, because it identified no "development" in emissions control measures that necessitates the new, more stringent standards it adopted.
We also oppose an effort by environmental groups to have EPA recalculate existing standards using procedures in Sec. 112(d)(2) and (3) for initial MACT standard-setting. Those procedures for new standards are not constrained in the same way that 8-year reviews are. As a result, EPA will lower emissions limits because companies complying with new standards try to build in a compliance margin when they buy new equipment, and that commendable over-performance raises the bar and leads EPA to lower the limits when the standard is reviewed. EPA's longstanding position is that it is not required to re-set the existing MACT standards each time it conducts a Sec. 112(d)(6) review, and that it is not required to use procedures under Sec. 112(d)(2) and (3) for periodic reviews, yet it did so in this case.
On July 21, 2015, a 3-judge panel rejected both industry and environmental group challenges to the review. It declined to require EPA to determine a new MACT floor each time it reviews a MACT rule, as environmental groups had wanted. But it also rejected industry arguments challenging the extent of technological developments that have occurred since the first rule was issued. It found that developments include improvements in performance of some technologies, which EPA found.