Case 1:22-cv-01457 Document 1 Filed 05/24/22 Page 1 of 19
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`
`
`)
`CALIFORNIA COMMUNITIES AGAINST
`)
`TOXICS
`)
`P.O. Box 845
`)
`Rosamond, CA 93560;
`)
`
`)
`CLEAN AIR COUNCIL
`)
`135 S. 19th Street, Suite 300
`)
`Philadelphia, PA, 19103;
`)
`
`)
`CLEAN POWER LAKE COUNTY
`)
`1245 St. John Avenue
`)
`Highland Park, IL 60035;
`)
`
`)
`DELAWARE CONCERNED RESIDENTS
`)
`FOR ENVIRONMENTAL JUSTICE
`)
`719 N. Shipley Street
`)
`Wilmington, DE 19801;
`)
`
`)
`GREATER-BIRMINGHAM ALLIANCE TO
`)
`STOP POLLUTION
`)
`2320 Highland Avenue S, Suite 270
`)
`Birmingham, AL 35205;
`)
`
`)
`KENTUCKY RESOURCES COUNCIL
`)
`P.O. Box 1070
`)
`Frankfort, KY 40602;
`
`)
`
`NEW CASTLE PREVENTION COALITION )
`19 Lambson Lane
`)
`New Castle, DE 19720;
`)
`
`)
`UNITED CONGREGATIONS OF METRO-
`)
`EAST
`)
`13 Vieux Carre Drive, Suite 2
`)
`East St. Louis, IL 62203; and
`)
`
`)
`SIERRA CLUB
`)
`2101 Webster Street, Suite 1300
`)
`Oakland, CA 94612,
`)
`
`
`
`
`)
`
`)
`
`)
`
`)
`
`Plaintiffs,
`
`v.
`
`Civil Action No. 1:22-cv-1457
`
`
`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`
`
`)
`CALIFORNIA COMMUNITIES AGAINST
`)
`TOXICS
`)
`P.O. Box 845
`)
`Rosamond, CA 93560;
`)
`
`)
`CLEAN AIR COUNCIL
`)
`135 S. 19th Street, Suite 300
`)
`Philadelphia, PA, 19103;
`)
`
`)
`CLEAN POWER LAKE COUNTY
`)
`1245 St. John Avenue
`)
`Highland Park, IL 60035;
`)
`
`)
`DELAWARE CONCERNED RESIDENTS
`)
`FOR ENVIRONMENTAL JUSTICE
`)
`719 N. Shipley Street
`)
`Wilmington, DE 19801;
`)
`
`)
`GREATER-BIRMINGHAM ALLIANCE TO
`)
`STOP POLLUTION
`)
`2320 Highland Avenue S, Suite 270
`)
`Birmingham, AL 35205;
`)
`
`)
`KENTUCKY RESOURCES COUNCIL
`)
`P.O. Box 1070
`)
`Frankfort, KY 40602;
`
`)
`
`NEW CASTLE PREVENTION COALITION )
`19 Lambson Lane
`)
`New Castle, DE 19720;
`)
`
`)
`UNITED CONGREGATIONS OF METRO-
`)
`EAST
`)
`13 Vieux Carre Drive, Suite 2
`)
`East St. Louis, IL 62203; and
`)
`
`)
`SIERRA CLUB
`)
`2101 Webster Street, Suite 1300
`)
`Oakland, CA 94612,
`)
`
`
`
`
`)
`
`)
`
`)
`
`)
`
`Plaintiffs,
`
`v.
`
`Civil Action No. 1:22-cv-1457
`
`
`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF
`
`
`
`Case 1:22-cv-01457 Document 1 Filed 05/24/22 Page 2 of 19
`
`MICHAEL S. REGAN, Administrator,
`U.S. Environmental Protection Agency, in
`his official capacity,
`1200 Pennsylvania Ave., NW
`Washington, DC 20460,
`
`
`
`
`
`
`Defendant.
`
`)
`)
`)
`)
`)
`)
`
`INTRODUCTION
`
`1.
`
`This is a suit to compel the Administrator of the U.S. Environmental
`
`Protection Agency (“EPA”) to take actions required by the Clean Air Act (“Act”). 42
`
`U.S.C. §§ 7401-7671. The Act requires that EPA limit emissions of toxic, cancer-causing
`
`chemicals by promulgating national emission standards for hazardous air pollutants
`
`(NESHAP). 42 U.S.C. § 7412(d). It also requires EPA to “review, and revise” these
`
`standards “no less often than every eight years.” Id. § 7412(d)(6).
`
`2.
`
`EPA finalized NESHAP for chemical manufacturing area sources in
`
`December 2012. 77 Fed. Reg. 75,740 (December 21, 2012); 40 C.F.R. Part 63, Subpart
`
`VVVVVV. Although more than eight years have passed since those standards were
`
`promulgated, EPA has not reviewed and revised those standards. EPA, therefore, has
`
`violated and is in ongoing violation of the Act.
`
`3.
`
`The chemical manufacturing industry is a significant source of pollution,
`
`including volatile organic compounds and hazardous air pollutants known to cause
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`cancer, among a host of other illnesses. EPA’s failure to review and revise the NESHAP
`
`for chemical manufacturing area sources allows these facilities to operate without
`
`requirements ensuring the use of current pollution control technology and without
`
`preventing the facilities from emitting excessive hazardous air pollution. EPA’s inaction
`
`harms Plaintiffs and their members, many of whom live, work, and recreate near these
`
`sources and who have no choice but to breathe the hazardous air pollutants they emit.
`
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`1
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`Case 1:22-cv-01457 Document 1 Filed 05/24/22 Page 3 of 19
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`4.
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`Some chemical manufacturing facilities also emit significant amounts of
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`ethylene oxide, a hazardous air pollutant that EPA classifies as a human carcinogen.
`
`EPA’s Office of Inspector General recently found that ethylene oxide emissions create an
`
`unacceptable risk of cancer in some communities where Plaintiffs’ members live, work,
`
`and recreate. The current chemical manufacturing area source standards do not set
`
`limits for ethylene oxide. Although a 2021 EPA Office of Inspector General report
`
`recommended that EPA develop NESHAP for chemical manufacturing area sources that
`
`emit ethylene oxide, EPA has yet to do so. As a result, EPA’s failure to review and revise
`
`the NESHAP for chemical manufacturing area sources harms Plaintiffs’ members who
`
`are exposed to unregulated emissions of ethylene oxide from these sources.
`
`5.
`
`To remedy EPA’s failure to comply with its statutory obligation, Plaintiffs
`
`seek declaratory and injunctive relief compelling EPA to review and, if necessary, revise
`
`the NESHAP for the chemical manufacturing area source category as expeditiously as
`
`possible.
`
`6.
`
`7.
`
`JURISDICTION, VENUE, AND NOTICE
`
`This action arises under the Clean Air Act. 42 U.S.C. § 7412(d)(6).
`
`This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331
`
`and 1361 and 42 U.S.C. § 7604(a)(2).
`
`8.
`
`This Court may grant the requested relief pursuant to the Declaratory
`
`Judgment Act, 28 U.S.C. §§ 2201-2202, as well as 28 U.S.C. § 1361 and 42 U.S.C. §
`
`7604(a)(2).
`
`9.
`
`Venue is vested in this Court under 28 U.S.C. § 1391(e) because the
`
`Defendant, EPA Administrator Michael S. Regan, resides in this district.
`
`
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`2
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`Case 1:22-cv-01457 Document 1 Filed 05/24/22 Page 4 of 19
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`10.
`
`By certified mail postmarked March 18, 2022, Plaintiffs gave notice of this
`
`action to the Administrator as required under 42 U.S.C. § 7604(b)(2) and 40 C.F.R. §§
`
`54.1-54.3.
`
`11.
`
`As more than sixty days have passed since that submission, Plaintiffs have
`
`satisfied the notice requirements of section 7604(b)(2).
`
`PARTIES
`
`12.
`
`Plaintiff California Communities Against Toxics (“CCAT”) is a nonprofit
`
`organization headquartered in Rosamond, California. CCAT is an environmental justice
`
`network of members and member groups that advocates for environmental justice and
`
`protection from toxic air pollution in the State of California and nationally. Through
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`public education, advocacy, and community organizing, CCAT aims to reduce
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`individuals’ exposure to pollution, to expand knowledge about the effects of toxic
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`chemicals on human health and the environment, and to protect the most vulnerable
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`people from harm.
`
`13.
`
`Plaintiff Clean Power Lake County (“CPLC”) is a nonprofit organization
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`headquartered in Highland Park, Illinois. CPLC is a community-driven coalition
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`committed to local action to secure environmental, economic, and racial justice. CPLC’s
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`mission is to ensure clean air, clean water, and healthy soil for every Lake County
`
`community member and to achieve the self-determination of those disproportionately
`
`impacted by environmental pollution.
`
`14.
`
`Plaintiff Delaware Concerned Residents for Environmental Justice
`
`(“DCR4EJ”) is a nonprofit organization headquartered in Wilmington, Delaware.
`
`DCR4EJ is an environmental justice collective where individuals, health advocates,
`
`
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`3
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`Case 1:22-cv-01457 Document 1 Filed 05/24/22 Page 5 of 19
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`native indigenous peoples, and organized groups are united around a shared
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`commitment to a bottom-up process rooted in principles to combat toxic chemicals,
`
`processes and pollution, the climate crisis, food access, and public health. DCR4EJ’s
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`mission is to inform and empower communities to take action to protect the
`
`fundamental rights to clean air, water, land, and food.
`
`15.
`
`Plaintiff Greater-Birmingham Alliance to Stop Pollution (“GASP”) is a
`
`nonprofit organization headquartered in Birmingham, Alabama. GASP’s mission is to
`
`advance healthy air & environmental justice in the greater-Birmingham area through
`
`education, advocacy, and collaboration. GASP envisions a healthy, just, and sustainable
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`Alabama for everyone who lives, works, learns, and worships there. GASP strives to
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`reduce air pollution, to educate the public on the health risks associated with poor air
`
`quality, and to encourage community leaders to serve as role models for clean air and
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`clean energy development.
`
`16.
`
`Plaintiff Kentucky Resources Council (“KRC”) is a nonprofit organization
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`headquartered in Frankfort, Kentucky. KRC’s mission is to protect built and natural
`
`communities from pollution and environmental damage. KRC combines policy and legal
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`advocacy to protect the Commonwealth's natural resources and ensure environmental
`
`justice for Kentucky's most vulnerable people and communities.
`
`17.
`
`Plaintiff New Castle Prevention Coalition (“NCPC”) is a nonprofit
`
`organization headquartered in New Castle, Delaware. NCPC works to build community
`
`resilience and strength by coalescing with residents and other stakeholders to address
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`the impacts and root causes of issues affecting the Route 9 Corridor communities,
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`including environmental injustice.
`
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`4
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`Case 1:22-cv-01457 Document 1 Filed 05/24/22 Page 6 of 19
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`18.
`
`Plaintiff United Congregations of Metro-East (“UCM”) is a nonprofit
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`organization headquartered in East St. Louis, Illinois. UCM is a group of pastors, church
`
`members, and other community organizations throughout the St. Louis Metro East who
`
`work together on social justice issues. UCM’s mission is to combat the root cause of
`
`systemic injustice in its region by uniting people of faith in transforming their
`
`communities. UCM works to achieve its mission by providing training and resources to
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`help people uncover their power and come together to change their circumstances.
`
`19.
`
`Plaintiff Sierra Club is a national nonprofit organization headquartered in
`
`Oakland, California, with 67 chapters and over 800,000 members dedicated to
`
`exploring, enjoying, and protecting the wild places of the earth; to practicing and
`
`promoting the responsible use of the earth’s ecosystems and resources; to educating and
`
`enlisting humanity to protect and restore the quality of the natural and human
`
`environment; and to using all lawful means to carry out these objectives. The Sierra
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`Club is committed to reducing pollution from industrial sources, including chemical
`
`manufacturing facilities.
`
`20. Defendant Michael S. Regan is the Administrator of the EPA. In that role,
`
`he is charged with the duty to uphold the Clean Air Act and to take required regulatory
`
`actions according to the schedules established therein. See 42 U.S.C. § 7601.
`
`LEGAL FRAMEWORK
`
`21.
`
`The Clean Air Act is designed “to protect and enhance the quality of the
`
`Nation’s air resources so as to promote the public health and welfare and the productive
`
`capacity of its population.” 42 U.S.C. § 7401(b)(1). A “primary goal” of the Clean Air Act
`
`is, therefore, “pollution prevention.” 42 U.S.C. § 7401(c). The statutory and regulatory
`
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`5
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`Case 1:22-cv-01457 Document 1 Filed 05/24/22 Page 7 of 19
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`framework of the Act is designed to prevent pollution by imposing emissions standards
`
`on various kinds of pollution, including hazardous air pollutants. Hazardous air
`
`pollutants especially harm public health and the environment by, for example,
`
`heightening the risk of cancer in nearby communities. 42 U.S.C. § 7412; 40 C.F.R. Parts
`
`61, 63.
`
`22.
`
`The 1990 Clean Air Act Amendments introduced the current framework
`
`under which hazardous air pollutants are regulated. With the 1990 Amendments,
`
`Congress created an initial list of hazardous air pollutants subject to regulation under
`
`the Act, 42 U.S.C. § 7412(b)(1), which include chemicals that are carcinogenic,
`
`neurotoxic, or cause other kinds of serious harm to human health. Congress also
`
`provided that EPA should add further chemicals to this list “upon a showing . . . that the
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`substance is an air pollutant,” which is “known to cause or may be reasonably
`
`anticipated to cause adverse effects to human health or adverse environmental effects.”
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`42 U.S.C. § 7412(b)(3)(B).
`
`23. Under the Act’s air toxics framework, a source which emits or has the
`
`potential to emit at least 10 tons per year of a listed hazardous air pollutant or at least 25
`
`tons per year of any combination of hazardous air pollutants is a “major source.” 42
`
`U.S.C. § 7412(a)(1). The Act requires EPA to create a list of categories of major sources,
`
`and to promulgate emissions standards for each of these major source categories. 42
`
`U.S.C. § 7412(c)(1), (d). Major source emissions standards—often referred to as
`
`“maximum achievable control technology” or “MACT” standards—require “the
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`maximum degree of reduction in emissions of . . . hazardous air pollutants . . . [that] is
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`achievable.” 42 U.S.C. § 7412(d)(2). The minimum stringency required of such
`
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`6
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`Case 1:22-cv-01457 Document 1 Filed 05/24/22 Page 8 of 19
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`standards—or MACT “floor”—must reflect what the best controlled source or sources
`
`have “achieved.” 42 U.S.C. § 7412(d)(3).
`
`24.
`
`Sources that emit (or have the potential to emit) less than 10 tons per year
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`of any hazardous air pollutant and less than 25 tons per year of any combination of
`
`hazardous air pollutants are referred to as “area sources.” 42 U.S.C. § 7412(a)(2). As
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`with major sources, the Act requires EPA to list categories of area sources, 42 U.S.C.
`
`§ 7412(c)(3), and to promulgate emission standards for each area source category. EPA
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`has the discretion to issue MACT standards for area sources. The Act also allows EPA to
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`issue alternative standards for area sources based instead on “generally available control
`
`technologies” (GACT). 42 U.S.C. § 7412(d)(5).
`
`25.
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`For all source categories under the NESHAP program, whether major
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`source or area source, EPA is required to “review, and revise as necessary (taking into
`
`account developments in practices, processes, and control technologies), emissions
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`standards . . . no less often than every eight years.” 42 U.S.C. § 7412(d)(6).
`
`26.
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`In addition to strengthening preexisting emissions standards for a given
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`source category, EPA’s duty during the review and revise process includes making any
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`other changes “necessary” to comply with the Act, such as “add[ing] limits . . . for any air
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`toxics that the existing standard does not address.” Louisiana Envtl. Action Network v.
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`EPA, 955 F.3d 1088, 1096 (D.C. Cir. 2020).
`
`27.
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`Standards that EPA promulgates under section 112 of the Act become
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`effective “upon promulgation.” 42 U.S.C. § 7412(d)(10).
`
`28. When promulgating new or revised standards, EPA must follow the Act’s
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`rulemaking procedures, including public notice-and-comment. See 42 U.S.C. §
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`7607(d)(1)(C).
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`Case 1:22-cv-01457 Document 1 Filed 05/24/22 Page 9 of 19
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`FACTS
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`Failure to Review and Revise the
`Chemical Manufacturing Area Source NESHAP
`
`29.
`
`In 1999, as part of its Urban Air Toxics Strategy, EPA listed Cyclic Crude
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`and Intermediate Production, Industrial Inorganic Chemical Manufacturing, Industrial
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`Organic Manufacturing, Plastic Materials and Resins Manufacturing, and Synthetic
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`Rubber Manufacturing as area source categories under 42 U.S.C. § 7412(c)(3). See
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`National Air Toxics Program: The Integrated Urban Strategy, 64 Fed. Reg. 38,706 (July
`
`19, 1999).
`
`30.
`
`In 2002, EPA listed Agricultural Chemicals and Pesticides Manufacturing,
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`Miscellaneous Organic Chemical Manufacturing, and Pharmaceutical Production as
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`area source categories under 42 U.S.C. § 7412(c)(3). See National Emission Standards
`
`for Hazardous Air Pollutants: Revision of Area Source Category List Under Section
`
`112(c)(3) and 112(k)(3)(B)(ii) of the Clean Air Act, 67 Fed. Reg. 43,112 (June 26, 2002).
`
`31.
`
`Also, in 2002, EPA listed Inorganic Pigments Manufacturing as an area
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`source category under 42 U.S.C. § 7412(c)(3). See National Emission Standards for
`
`Hazardous Air Pollutants: Revision of Area Source Category List Under Section
`
`112(c)(3) and 112(k)(3)(B)(ii) of the Clean Air Act, 67 Fed. Reg. 70,427 (Nov. 22, 2002).
`
`32. On October 29, 2009, EPA promulgated emissions standards for these
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`nine area source categories collectively, as “chemical manufacturing area sources,”
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`through a single set of emission standards codified at 40 C.F.R. Part 63, Subpart
`
`VVVVVV. See National Emission Standards for Hazardous Air Pollutants for Chemical
`
`Manufacturing Area Sources, 74 Fed. Reg. 56,008 (Oct. 29, 2009) (2009 Final Rule).
`
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`33.
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`Following reconsideration and stay of the 2009 Final Rule by EPA, the
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`chemical manufacturing area source standards did not become effective until December
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`21, 2012. See National Emission Standards for Hazardous Air Pollutants for Chemical
`
`Manufacturing Area Sources, 77 Fed. Reg. 75,740 (Dec. 21, 2012).
`
`34.
`
`The Act requires EPA to “review, and revise as necessary” the chemical
`
`manufacturing area source standards within eight years of promulgation. 42 U.S.C.
`
`§ 7412(d)(6).
`
`35.
`
`The Act also requires EPA to “review, and revise as necessary” the
`
`chemical manufacturing area source standards within eight years of every subsequent
`
`revision. 42 U.S.C. § 7412(d)(6).
`
`36.
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`The Act required EPA to “review, and revise as necessary” the chemical
`
`manufacturing area source emission standards no later than October 29, 2017.
`
`37. More than eight years have passed since the promulgation of standards for
`
`chemical manufacturing area sources (October 29, 2009).
`
`38.
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`In addition, more than eight years have passed since the date the
`
`standards became effective (December 21, 2012).
`
`39.
`
`EPA has failed to review and revise the chemical manufacturing area
`
`source standards as required by the Act. 42 U.S.C. § 7412(d)(6).
`
`Health Effects of Chemical Manufacturing Area Source Pollution
`
`40. Chemical manufacturing area sources emit a “substantial portion” of the
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`hazardous air pollutants which EPA has “judged to pose the greatest potential threat to
`
`public health in the largest number of urban areas.” National Air Toxics Program: The
`
`Integrated Urban Strategy, 64 Fed. Reg. at 38,706, 38,721.
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`41.
`
`Chemical manufacturing area sources emit hazardous air pollutants,
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`including metal compounds such as arsenic, cadmium, chromium, lead, manganese,
`
`and nickel compounds; organic chemicals such as 1,3-butadiene, 1,3-dichloropropene,
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`acetaldehyde, chloroform, ethylene dichloride, hexachlorobenzene, methylene chloride,
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`quinoline, and ethylene oxide, among other pollutants. 40 C.F.R. Part 63, Subpart
`
`VVVVVV, Table 1. Many of these pollutants are carcinogenic, or have other negative
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`health effects, including respiratory, neurological, developmental, and reproductive
`
`harm.
`
`42.
`
`For example, exposure to lead can cause severe brain and kidney damage
`
`in children, as well as anemia in both children and adults. Lead also causes significant
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`neurological harm to developing fetuses.
`
`43.
`
`EPA classifies arsenic as carcinogenic, and chronic inhalation can also lead
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`to skin conditions, including chronic dermatitis, conjunctivitis, and pharyngitis.
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`44. Arsenic and other metals also persist in the human body and in the
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`environment and can cause harm from both inhalation and other pathways of exposure.
`
`45.
`
`As an example of some of the serious effects of some of the other
`
`hazardous air pollutants, exposure to 1,3-butadiene is known to be particularly harmful.
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`Like many of the other HAPs, this pollutant is known to cause cancer and a range of
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`cardiovascular diseases, and can also cause acute health impacts such as trouble
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`breathing and other serious harm from short-term exposure.
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`46. Hazardous air pollutants are also particularly harmful to children,
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`pregnant women, and the developing fetus due to a combination of increased
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`vulnerability and exposure.
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`Unregulated Ethylene Oxide Emissions from
`Chemical Manufacturing Area Sources
`
`47.
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`EPA classifies ethylene oxide as a known human carcinogen.
`
`48. According to EPA, ethylene oxide exposure can cause lymphoid cancers in
`
`males and breast cancer in females. Ethylene oxide emissions also cause other negative
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`health effects, including damage to eyes, skin, respiration, and the nervous system.
`
`49.
`
`In 2016, EPA reevaluated the extent of the risk from human exposure to
`
`ethylene oxide emissions and determined that ethylene oxide is far more harmful than
`
`previously understood – including about 60 times more carcinogenic to children.
`
`50.
`
`In 2016, EPA’s toxicology program established a new cancer risk value for
`
`ethylene oxide, that EPA’s air office then used to assess the national cancer risk from
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`hazardous air pollution in the 2014 National Air Toxics Assessment.
`
`51.
`
`The results of the 2014 National Air Toxics Assessment showed that
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`ethylene oxide contributed to a risk of cancer equal to or greater than 100-in-one
`
`million—EPA’s benchmark for “unacceptable risk”1—in 58 census tracts across the
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`United States. Among these are census tracts where chemical manufacturing area
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`sources are located and where Plaintiffs’ members live, work, and recreate.
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`52.
`
`In 2020 and 2021, EPA’s Office of Inspector General urged EPA on
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`multiple occasions to take action to address the unregulated ethylene oxide emissions
`
`from chemical manufacturing area sources.
`
`
`1 Plaintiffs have indicated in comments to the agency that its 1989 benchmark for
`unacceptability is long outdated and that strengthening EPA’s unacceptability policy
`benchmark is necessary to take into account the sensitivity of children and cumulative
`harm to people exposed to multiple sources of pollution.
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`53.
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`In its reports, the Office of Inspector General identified at least 25 facilities
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`in 17 major metropolitan areas across the United States that are significant risk drivers
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`for cancer based on their ethylene oxide emissions. For the census tracts closest to these
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`facilities, cancer risks are equal to or greater than 100-in-one million. Moreover, at least
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`14 of these plants are in the chemical manufacturing industry, and at least 5 of those 14
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`plants are chemical manufacturing area sources.
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`54.
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`The EPA Office of Inspector General's 2021 report highlighted that the
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`emission standards for these chemical manufacturing area sources do not currently
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`regulate ethylene oxide emissions.
`
`55.
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`The 2021 Inspector General report also urged EPA to promptly review and
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`strengthen the chemical manufacturing area source standards, including by regulating
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`ethylene oxide and conducting a residual risk review to ensure that the public is not
`
`exposed to unacceptable risks.
`
`56.
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`A 2022 Inspector General report also exposed EPA’s longstanding failures
`
`to fulfill section 7412(d)(6) deadlines and to prioritize section 7412 review rulemakings.
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`57. Despite strong new evidence of the dangers of ethylene oxide, including
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`EPA’s 2016 cancer risk value and its national air toxics assessment, and despite the fact
`
`that chemical manufacturing sources emit significant quantities of ethylene oxide, EPA
`
`has thus far failed to regulate ethylene oxide emissions from chemical manufacturing
`
`area sources.
`
`58.
`
`Chemical manufacturing area sources are therefore currently permitted to
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`emit unregulated amounts of ethylene oxide.
`
`
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`Case 1:22-cv-01457 Document 1 Filed 05/24/22 Page 14 of 19
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`ALLEGATIONS OF INJURY
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`59.
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`EPA’s failure to review, and if necessary revise chemical manufacturing
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`area source standards, as 42 U.S.C. § 7412(d)(6) requires, is harming and will continue
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`to harm Plaintiffs and their members.
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`60. Chemical manufacturing area sources emit hazardous air pollutants and
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`volatile organic compounds that are known to cause respiratory, neurological,
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`developmental, and reproductive harm, as well as cancer.
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`61.
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`In addition, EPA currently allows chemical manufacturing area sources to
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`emit ethylene oxide without implementing pollution controls. Ethylene oxide is a highly
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`carcinogenic chemical which also causes damage to the brain and the nervous system.
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`62.
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`Plaintiffs’ members live, work, recreate, and engage in a variety of other
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`activities near chemical manufacturing area sources. Plaintiffs’ members have no choice
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`but to breathe the hazardous air pollutants emitted by chemical manufacturing area
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`sources.
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`63.
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`Plaintiffs’ members are concerned about the presence of hazardous air
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`pollutants in the communities where they live, work, recreate, and engage in other
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`activities. As a result of these reasonable concerns about harms stemming from
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`increased exposure to toxic air pollutants, Plaintiffs’ members’ enjoyment in the
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`activities which they previously enjoyed is significantly diminished. Plaintiffs’ members’
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`recreational and aesthetic interests are therefore harmed.2
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`2 Plaintiffs have many members who live, work, or recreate near and who are
`experiencing current and ongoing injuries due to EPA’s failure to complete the overdue
`rulemaking as alleged here, for example: an 80-year-old woman who lives within one
`mile of three chemical manufacturing plants regulated under the Chemical
`Manufacturing Area Source NESHAP; and a 73-year-old woman who lives less than a
`mile away from an ethylene oxide chemical manufacturing plant.
`13
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`Case 1:22-cv-01457 Document 1 Filed 05/24/22 Page 15 of 19
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`64.
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`Further, chemical manufacturing area sources emit air pollutants that can
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`harm surrounding wildlife, plants, waters, land, communities, and ecosystems. For
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`example, chemical manufacturing area sources emit volatile organic compounds, which
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`contribute to the build-up of ambient ozone. Ozone harms plant species and causes
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`wildlife avoidance and harm to biodiversity. The harms caused to surrounding
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`ecosystems by emissions from chemical manufacturing area sources also impair
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`Plaintiffs’ members’ recreational and aesthetic interests.
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`65.
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`The Administrator’s failure to take the actions for chemical manufacturing
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`area sources required by § 7412(d)(6) deprive Plaintiffs’ members of the cleaner air that
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`would result from those actions. EPA’s inaction prolongs and increases Plaintiffs’
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`members’ exposure to higher levels of hazardous air pollutants and volatile organic
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`compounds that harm Plaintiffs’ members’ health, recreational, and aesthetic interests,
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`as described above. Performing the overdue rulemaking and assuring emission
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`reductions required under § 7412(d)(6) would reduce these exposures, and would
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`reduce the related health, recreational, aesthetic, and other harms suffered by Plaintiffs’
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`members.
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`66. Additionally, in performing the overdue rulemaking, the Administrator
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`would be required to eliminate an unlawful provision that creates an “affirmative
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`defense to a claim for civil penalties for violations of [the standards] that are caused by
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`malfunction.”40 C.F.R. § 63.11501(e). Removing this provision is required by section
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`7412(d)(6) and a 2014 decision of the U.S. Court of Appeals for the D.C. Circuit, which
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`held that affirmative defense provisions such as this are unlawful because it exceeds
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`EPA’s authority under the Clean Air Act. Nat. Res. Def. Council v. E.P.A., 749 F.3d 1055,
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`1062 (D.C. Cir. 2014). Removal of this unlawful affirmative defense provision would
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`14
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`Case 1:22-cv-01457 Document 1 Filed 05/24/22 Page 16 of 19
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`help ensure that facilities take steps to control emissions at all times. This would reduce
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`Plaintiffs’ members’ pollution exposures, and would reduce the related health,
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`recreational, aesthetic, and other harms.
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`67.
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`Plaintiffs and their members suffer harm because they are denied the
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`opportunity to present written comments, data, documentary information, views, and
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`arguments to EPA and have them considered by the agency and responded to as part of
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`the overdue § 7412(d)(6) rulemaking. The Administrator’s failure to conduct the
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`overdue rulemaking has thus denied Plaintiffs and their members the opportunity to
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`seek greater health protections and emissions reductions and to have EPA consider and
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`respond to such comments in taking the final actions required by § 7412(d)(6). This
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`deprivation of the opportunity to present comments and arguments and have them
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`considered and addressed by EPA impairs Plaintiffs’ and their members’ ability to serve
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`and protect their interests and fulfill their organizational missions.
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`68.
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`Plaintiffs and their members are also harmed because the Administrator’s
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`failure to conduct the overdue rulemaking deprives them of information, including
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`determinations from the Administrator pursuant to section 7412(d)(6) and underlying
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`evidence related to such determinations, such as information regarding the emission
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`limitations existing sources have achieved, the current pollution control methods,
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`practices, and technologies that could be or are being used to achieve emission
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`reductions, the health and environmental risks that remain under the existing
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`standards, and other information EPA would consider and make public during the
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`overdue rulemaking that is relevant to the review and need for stronger emission
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`standards—information to which Plaintiffs and their members are entitled by law. See,
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`15
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`Case 1:22-cv-01457 Document 1 Filed 05/24/22 Page 17 of 19
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`e.g., 42 U.S.C. § 7607(d)(3)-(6) (describing documents that must be made “open to
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`public inspection” as part of § 7412 rulemakings).
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`69.
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`Plaintiffs need this information to advance their organizational purposes,
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`including educating their members and constituents, and working to assure stronger
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`health and environmental protections. Plaintiffs’ members need this information to
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`better understand the operations of and dangers posed by chemical manufacturing
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`facilities near their homes, to take self-protective measures to minimize their exposure
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`to pollutants emitted by chemical manufacturing facilities, and to work for stronger
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`health and environmental protections.
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`70.
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`For all of the foregoing reasons, the failures complained of herein cause
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`Plaintiffs and their members injuries for which they have no adequate remedy at law.
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`Granting the requested relief and ordering the overdue rulemaking would redress these
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`injuries.
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`CLAIM FOR RELIEF
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`71.
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`The allegations of all foregoing paragraphs are hereby incorporated as if
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`set forth fully herein.
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`Violation of § 7412(d)(6) of the Clean Air Act
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`72.
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`The Administrator’s failure to review and revise National Emission
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`Standards for Hazardous Air Pollutants for the chemical manufacturing area source
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`category under 40 C.F.R. Part 63, Subpart VVVVVV, within the timeframe required by
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`42 U.S.C. § 7412(d)(6) constitutes a “failure of the Administrator to perform any act or
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`duty under this chapter which is not discretionary” within the meaning of § 7604(a)(2)
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`of the Clean Air Act.
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`16
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`Case 1:22-cv-01457 Document 1 Filed 05/24/22 Page 18 of 19
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`73.
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`Each day the Administrator fails to take these legally required actions,
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`Defendant commits new, additional, and ongoing violations of his (EPA’s) duties under
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`§ 7412(d)(6).
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`
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`WHEREFORE, Plaintiffs respectfully ask that the Court:
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`PRAYER FOR RELIEF
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`(1)
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`Declare that EPA’s failure to timely review the national emission standards
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`for chemical manufacturing area sources, 40 C.F.R. Part 63, Subpart VVVVVV, and
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`either to revise those standards as necessary, or issue a final determination that such
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`revision is not necessary, as required by section 7412(d)(6) of the Act, constitutes a
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`“failure of the Administrator to perform any act or duty under this chapter which is not
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`discretionary with the Administrator” within the meaning of APA section 7604(a)(2);
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`(2) Order the Defendant Administrator to review the national emission
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`standards for chemical manufacturing area sources, 40 C.F.R. Part 63, Subpart
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`VVVVVV, and either to revise the chemical manufacturing area source National
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`Emission Standards for Hazardous Air Pollutants as necessary, or issue a determination
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`that revision is not necessary, in accordance with section 112(d)(6) and pursuant to an
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`expeditious deadline set by this Court;
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`Retain jurisdiction to ensure compliance with this Court’s decree;
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`Award Plaintiffs the cost of this action, including reasonable attorney fees;
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`(3)
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`(4)
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`and
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`(5)
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`Grant such other relief as the Court deems just and proper.
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`17
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`Case 1:22-cv-01457 Document 1 Filed 05/24/22 Page 19 of 19
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`DATED: May 24, 2022
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`Respectfully submitted,
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`/s/ Gonzalo Rodriguez
`Gonzalo Rodriguez (D.C. Bar No. 1765051)
`Emma Cheuse (D.C. Bar No. 488201)
`EARTHJUSTICE
`1001 G Street NW, Suite 1000
`Washington, D.C. 20001
`(202) 667-4500
`grodriguez@earthjustice.org
`echeuse@earthjustice.org
`
`Counsel for Plaintiffs California
`Communities Against Toxics, Clean Air
`Council, Clean Power Lake County,
`Delaware Concerned Residents for
`Environmental Justice, Greater-
`Birmin
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