Document Type

Article

Publication Date

2005

Abstract

This article will focus on the scope of the EPA's authority to delist categories and subcategories of sources, especially those emitting carcinogens.

This article concludes that the EPA's creation of a low-risk subcategory of PCWP sources is improper because the plain language of subsection 112(c)(9)(B)(i) limits the Agency's delisting authority to whole categories of carcinogenic sources. The EPA has failed to meet its heavy burden in attempting to demonstrate that Congress made a drafting error when it omitted the term "subcategory" in subsection 112(c)(9)(B)(i) for carcinogenic chemicals. The doctrine of scrivener's error is inapplicable to the plain language of subsection 112(c)(9)(B)(i). There are plausible reasons why Congress would have used the term "subcategory" in subsection 112(c)(9)(B)(ii) for non-carcinogenic chemicals that were assumed to have a safe threshold but deliberately omitted the term "subcategory" in subsection 112(c)(9)(B)(i) for carcinogenic chemicals that were assumed in 1990 to have no safe threshold other than zero emissions.

Part II examines the differences between "non-threshold" carcinogens and "threshold" non-carcinogens and the difficulties that the EPA had in regulating air toxics under the 1970 Amendments to section 112. Part III explains the 1990 Amendments to section 112, which shifted the statute to a largely technology-based focus. Part IV examines two provisions in Section 112-subsections 112(d)(4) and 112(c)(9)(B)-that treat non-threshold carcinogens differently than threshold non-carcinogens. Part V introduces the PCWP Rule's process for delisting a "low-risk" subcategory of carcinogenic sources under subsection 112(c)(9)(B)(i). Finally, Part VI examines the EPA's argument that the omission of the term "subcategories" in subsection 112(c)(9)(B)(i) is a drafting error. It concludes that the EPA has failed to meet its burden of proving a scrivener's error because there are plausible reasons why Congress might have allowed the delisting of subcategories of non-carcinogenic sources, but limited the delisting of carcinogens to entire source categories.

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