The United States EPA’s recently released rule to control air toxics from cement plants includes a first-time notice of reconsideration that legal experts say may be unlawful because it could allow the agency to circumvent a court order that required the agency to issue the rule.

An environmentalist also notes that the Clean Air Act provides no authority for EPA to self-initiate a reconsideration of its rules.

If successful, EPA could employ the strategy in future rulemakings where it is required to meet court-ordered deadlines but wants to provide a way to give agency staff more time to review and possibly alter requirements contained in the final rule, these sources say.

In this case, EPA had to finalize a maximum achievable control technology (MACT) rule for Portland cement plants by Dec. 8, according to a consent decree imposed by the U.S. Court of Appeals for the District of Columbia Circuit. The rule has been subject to years of litigation, and the court remanded it back to the agency because it failed to include mercury requirements. The agency never acted on the remand, and environmentalists went back to court last year to impose the deadline.

In the final rule, published in the Federal Register Dec. 20, EPA set a numeric mercury limit for new cement kilns and is also requiring that existing facilities ban the use of fly ash as a feedstock if purchased from utilities that use sorbent to control for mercury, because that increases the mercury content in the fly ash. The cement industry suggested the partial fly ash ban at an 11th-hour meeting with White House and EPA officials, even though the ban was formally opposed by the coal waste industry in their comments on the rule. Relevant documents are available on InsideEPA.com.

But at the same time, the agency is proposing to reconsider both of those issues, as well as the limit it set for total hydrocarbons at new plants in the final rule (Clean Air Report, Dec. 14, p19).

The agency cites as its authority for the reconsideration Clean Air Act section 307(d)(7)(B), which lays out how the administration is supposed to address petitions for reconsideration received from outside the agency. "We ourselves are doing so because we believe that reconsideration is compelled [by this section] since information on which the standard is based arose after the period for public comment and (obviously) is of central relevance to the rulemaking," the notice says.

But the air act does not specifically authorize the agency to self-issue a reconsideration. The section says, "If the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within such time or if the grounds for such objections arose after the period for public comment . . . the Administrator shall convene a proceeding for reconsideration of the rule."

The environmentalist says, "What they did circumvented all of that entirely." The source says the idea was hatched by EPA political appointees and executed over the objections of career staff. "It was done in bad faith and is ill-advised," the source adds. "They finalize the rule in name and reconsider the issues industry wants. . . . So now they can soften or remove" those provisions.

A legal expert concurs with the environmentalists’ assessment, calling it "the perfect trick to play if faced with a deadline." The source says it is also a strategy "only a lawyer could love" and had also never heard of it being used before.

But a second legal expert cautions that it is a high-risk strategy because "it will not endear them to the court. There’s a good reason why this strategy has not been employed before. The court may well see this as evidence of agency recalcitration . . . and judges can be prickly when they think an agency is trying to circumvent their orders."

However, an EPA official defends the action, noting the agency does not have as much data on the effectiveness of wet scrubbers to control mercury at cement plants as it would like, even though the rule bases the mercury limit on that technology. The source says that five of 115 cement plants have wet scrubbers and that EPA only has data from three of those. "We want more data and we want to give the public the opportunity to comment." The same holds true for the hydrocarbon limit and fly ash ban, the source adds. The official declined to address any other claims about the reconsideration.

A source with the Portland Cement Association (PCA) agrees that EPA’s reconsideration is highly unusual and says the group had asked EPA to repropose the rule, rather than issue it as final and simultaneously reconsider it. But the source says the industry will participate in the process in whatever form it takes. "This is a very significant rulemaking and what they have is a notice-and-comment problem," the source notes.