Petition for Review of Final Administrative Action of the United States Environmental Protection Agency
*Online at

SIERRA CLUB,et al., Petitioners,


Petitioners seek review of the final action taken by EPA at 80 Fed. Reg. 65,470 (Oct. 26, 2015) and entitled “NESHAP [National Emission Standards for Hazardous Air Pollutants] for Brick and Structural Clay Products Manufacturing; and NESHAP for Clay Ceramics Manufacturing.”

Petitioner Brick Industry Association also seeks review of the final action taken by EPA at 81 Fed. Reg. 31,234 (May 18, 2016) and entitled “NESHAP for Brick and Structural Clay Products Manufacturing; and NESHAP for Clay Ceramics Manufacturing.”


  1. Whether EPA violated the Clean Air Act or acted arbitrarily by setting standards under a provision reserved only for threshold pollutants, 42 U.S.C. § 7412(d)(4), without meeting that subsection’s requirements that a “health threshold has been established” and that the standards include “an ample margin of safety.”
  2. Whether EPA acted arbitrarily by setting minimum stringency emission standards (“floors”) for kilns for which EPA had “limited” emissions data at levels that do not reflect the emissions levels achieved by the relevant best-performing kiln or kilns. Id. § 7412(d)(3).
  3. Whether EPA violated the Clean Air Act or acted arbitrarily by setting not one, but three “alternative” emissi on floors under 42 U.S.C. § 7412(d)(2), and allowing kilns to choose which floor to meet.



Brick and ceramics kilns emit extremely hazardous air pollutants. The Clean Air Act requires EPA to set standards that control such pollution. The last time EPA issued standards for these industries, this Court found them unlawful and vacated them in their entirety. Sierra Club v. EPA, 479 F.3d 875 (D.C. Cir. 2007).

After extended delay, and only when ordered to act by a district court, EPA adopted the rules challenged here to replace those invalidated nearly a decade ago.

Unfortunately, EPA has yet again disr egarded the plain requirements of the Clean Air Act and set standards far weaker than the Act mandates. As a consequence of EPA’s unwillingness to follow the law, people living near brick and ceramics kilns continue to be deprived of the needed health protections the Act guarantees them. Environmental Petitioners seek an order that EPA correct the unlawful aspects of its rules and finally issue lawful standards.

  1. FACTUAL BACKGROUND Each year, according to EPA, brick and ceramics kilns located across the country release thousands of tons of hazardous air pollutants, including highly corrosive acid gases and dangerous heavy metals such as arsenic, lead, and mercury. 80 Fed. Reg. at 65,473/2-3, 65,504/2, JA____, ____; EPA-HQ-OAR-2013-0291-0665 at 4-27, JA____ (“Regulatory Impact Analysis”); EPA-HQ-OAR-2013-0291-0664 at A-16 to A-19, JA____-__ (“Cost Memo”). The acid gases include hydrogen chloride (also called hydrochloric acid or HCl), hydrogen fluoride (HF), and chlorine (Cl2), and account for more than 99 percent of hazardous air pollutants released by kilns. 80 Fed. Reg. at 65,473/2, JA____.

… Hydrogen fluoride is a highly corrosive systemic poison that can burn skin or lungs on contact and, when inhaled, can cause coughing and narrowing of bronchi in the lungs, low blood pressure, skeletal damage, and, in severe cases, lung collapse or death. Id. at 4-29 to 4-30, JA____-__; 79 Fed. Reg. 75,622, 75,640/2 (Dec. 18, 2014), JA____;

… For hydrogen fluoride, EPA did not even consider a classification. Instead, EPA found that “[t]here are a limited number of studies” on its potential to cause cancer, and that those few studies “are unreliable on the issue of possible carcinogenicity of HF and/or fluorides.” 80 Fed. Reg. at 65,488/3, JA____; see also id. at 65,493/1-2 & n.52, JA____ (“Carcinogenicity studies, in which HF has been tested, are not available.”). Elaborating on this finding, EPA noted that the ATSDR identified studies showing “elevated cancer rates,” but those studies suffered from design flaws. Id. at 65,493/1-2 & n.52, JA____. EPA also noted that the IARC “determined that the carcinogenicity of fluoride to humans is not classifiable.” Id. In summary, EPA determined that the overall evidence as to carcinogenicity of hydrogen fluoride is “limited/equivocal.” 79 Fed. Reg. at 75,641, JA____; 80 Fed. Reg. at 65,488/3, JA____. 4

… For hydrogen fluoride and chlorine, EPA could not locate an EPA-derived risk level, and instead chose a CalEPA level for hydrogen fluoride and an Agency for Toxic Substances and Disease Registry level for chlorine. 79 Fed. Reg. at 75,643, JA____.

… 3. Failure To Set § 7412(d)(4) Standards With An Ample Margin Of Safety.

After picking chronic risk values for hydrogen chloride, hydrogen fluoride, and chlorine gas with respect to non-cancer health effects, EPA asserted those numbers are “thresholds” for each of these pollutants. EPA then adopted standards that permit a facility to release any combination of these pollutants right up to the supposed threshold level. 80 Fed. Reg. at 65,500/3-01/1; 79 Fed. Reg. at 75,643-44, JA____-__; Sierra Club Comments at 27-28, JA____-__. EPA did not increase the level of the standards to provide a margin of safety beyond the alleged threshold. Sierra Club Comments at 27-44, JA____-__.

Because EPA calculated the standards using chronic risk levels, they do not account for threats to people from acute (i.e., short-term) exposures. Brick Risk Assessment at 2, JA____; EPA-HQ-OAR-2013-0290-0213 at 2, JA____ (“Ceramics Risk Assessment”). EPA found that at multiple kilns, people (including children) face acute health risks when exposed to hydrogen fluoride at the level allowed by the standards. Brick Risk Assessment at 16-17, JA____-__; Ceramics Risk Assessment at 12-13, JA____-__. Nevertheless, EPA did not tighten the standards to guard against the health risks it found.


Emission standards under § 7412(d)(4). EPA contravened the Clean Air Act and acted arbitrarily by setting do-nothing standards for emissions of hydrogen chloride, hydrogen fluoride, and chlorine under § 7412(d)(4) without meeting this provision’s requirement for an established health threshold. 42 U.S.C.§ 7412(d)(4). The record shows that EPA does not know whether the pollutants present a cancer risk, and the agency’s claim that the absence of available health evidence authorizes such standards is unlawful under Chevron analysis and arbitrary. Further, EPA unlawfully and arbitrarily relied on a hydrogen chloride risk value and study in which it has “low confidence” while ignoring a more recent and health protective risk determination, and ignored its own finding that the standards allow harmful short-term exposures to hydrogen fluoride. Finally, EPA did not include the “ample margin of safety” that the Clean Air Act mandates. Id.

…EPA takes the position that it can set § 7412(d)(4) standards for hydrogen chloride, hydrogen fluoride, and chlorine because it does not know whether these pollutants cause cancer. EPA asserts the lack of any expert classification of the pollutants as carcinogenic or potentially carcinogenic as “sufficient” to

demonstrate safety from cancer. 80 Fed. Reg. at 65,488/1-89/3, JA____-__. Similarly EPA asserts that the absence of evidence that hydrogen chloride and chlorine cause cancer “is sufficient.” 80 Fed. Reg. at 65,489/3, 65,494/3, JA____, ____; 79 Fed. Reg. at 75,639/1-41/1, JA____-__

… EPA relied on the ATSDR’s cancer assessment of hydrogen fluoride, 80 Fed. Reg. at 65,493/1-2 & n.52, JA____, but ATSDR’s finding that it is “not classifiable” as to carcinogenicity only confirms that EPA does not know if it causes cancer. ATSDR, ToxFAQS for Fluorides, Hydrogen Fluoride, and Fluorine at 8, JA____.

Not only is the information on cancer risk “very limited,” it is also “equivocal,” as EPA found for hydrogen fluoride. 79 Fed. Reg. at 75,641/1,JA____; see also id. at 75,640/2-41/1, JA____-__ (twice citing the Agency for Toxic Substances and Disease Registry observation that researchers disagree as to hydrogen fluoride’s potential to cause cancer). Indeed, the National Research Council of the National Academies found the “overall evidence” of fluoride’s potential for cancer “is mixed.” National Research Council Report at 93, JA____. Thus, EPA’s claim that evidence of cancer risk is “absen[t]” is not only insufficient to justify its decision, see supra, 26-28, but at odds with EPA’s own findings in the record. State Farm, 463 U.S. at 43.

  1. By Ignoring The Alleged Threshold For Acute Health Risks For Hydrogen Fluoride When Setting § 7412(d)(4) Standards, And Expressly Allowing Pollution That Poses Health Risks, EPA Violated § 7412(d)(4) And Acted Arbitrarily.
  2. The Standards For Hydrogen Chloride, Hydrogen Fluoride, And Chlorine Violate § 7412(d)(4) And Are Unreasonable Because It Has Not Already Been Established That They Do Not Cause Cancer.

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