US: A federal appeals court has scheduled oral arguments for 11 October 2011 in pending litigation challenging EPA's air toxics and criteria pollutant rules for the Portland cement industry, giving activists a chance to argue for the inclusion of greenhouse gas (GHG) limits in the criteria pollutant rule and for industry to highlight what it says are major flaws in both rules.

The US Court of Appeals for the District of Columbia Circuit has scheduled oral arguments for the suits challenging EPA's new source performance standards (NSPS) for criteria pollutants and a maximum achievable control technology (MACT) standards for air toxin emissions.

The court recently granted the cement industry's request to sever and hold in abeyance several aspects of its pending lawsuits challenging key provisions of the two rules, following an agency decision to issue a partial denial and partial granting of several petitions for administrative reconsideration of the rules. The oral arguments will focus on suits challenging other provisions of the two rules. For example, the Portland Cement Association (PCA) and other industry petitioners will likely ask the court to vacate both rules due to what they say are numerous faults and errors in the final versions.

In the fight over the NSPS rule, industry filed a brief on 16 May 2011 taking issue with, among other things, the rule's new limits on particulate matter (PM) emissions, particularly its limit of 4.5g (0.01lb) of PM per tonne of clinker. Producers argue that the EPA 'simply adopted' the same PM limit that it set for the air toxins rule, at odds with Clean Air Act requirements for setting NSPS.

In their brief in the MACT suit (16 May 2011), the producers argue that the EPA failed to address the overlap between the cement rule and a recent EPA emissions rule for commercial and industrial solid waste incinerators (CISWI). On 21 March 2011 the EPA issued a memo trying to clarify the number of cement facilities that would be subject to the final CISWI rule but the producers said that the memo did not resolve their concerns and sought to have the question addressed through an administrative reconsideration of the rule. This request was subsequently denied by the EPA.

The PCA and others in the industry have also continued to express concerns over whether some cement kilns burning alternative fuels that may fall under a recent final EPA rule defining non-hazardous solid waste would fall under the cement MACT or under the CISWI rule issued in February 2011 and how that would impact on the MACT baseline emissions limits that the agency used when it developed the cement air toxins regulation.

The rules were amendments to existing NSPS and MACT standards for the sector and industry only wants the court to vacate the 2010 amendments and not the rules that were in place prior to the new rules. If the court vacates the amendments, the rules could revert to the older regulations, a cement NSPS set in 1988 and the MACT rules from 2006.

Environmentalists meanwhile will likely use the oral arguments to push their legal fight that is trying to have the court force the EPA to... ...include GHG limits in the cement NSPS. Environmentalists have filed briefs in the cement litigation arguing that GHGs meet the EPA's two-part criteria for determining whether to regulate new pollutants under NSPS. When the EPA issued the cement NSPS alongside an air toxins rule for the sector in September 2011 it said that CO2 standards 'may be appropriate' for the sector, but chose not to include GHG limits in the final rules, because it had not included GHG limits in the proposed version of the rule. The agency said that it needed, "additional information on site-specific factors that affect performance of these controls, where they are currently applied, and control costs," for reducing CO2 from the Portland cement industry. This is a point that environmentalists are disputing.

In a brief issued on 16 May 2011 Sierra Club, the Natural Resources Defense Council and others argue that the EPA's decision not to include GHG limits in the NSPS while saying such limits 'may be appropriate' for future action 'is particularly egregious' given that the EPA's findings in the proposed and final versions of the rule point toward inclusion of CO2 standards and that the agency has already determined that CO2 negatively affects public health.