Document 9902NwqQo8vLzr3K9vqEwEbMD

Agency inexplicably lumped the sources together in concluding that Fenceline Monitoring is appropriate. ,Sec infra Section Xl.A. It is impossible to reconcile EPA's current proposal to require Fenceline Monitoring of Be and HNR with EPA's long-standing recognition that the differences in fugitive emissions between the two arc so materially different. An agency's decision is arbitrary and capricious if"the agency has [] offered an explanation for its decision that runs counter to the evidence before the agency." EPA does not offer any meaningful basis for its decision to require IINR plants to conduct Fenceline Monitoring and its data makes clear that there is no credible basis for doing so. Sierra Club v. Pep 't of. the Interior, 899 F.3d 260, 293 (el Cir. 2018) (quoting Stale rartn, 463 U.S. at 43). EPA's conclusion suggests that it would have required Fenceline Monitoring regardless of the outcome of its analysis. 2. EPA's Reasons for Proposing Fenceline Monitoring Appear to be Unrelated to its Technology Review EPA is proposing that coke oven batteries "conduct fenceline monitoring for benzene and report these data electronically to the EPA so that it can be made public and provide fenceline communities with greater access to information about potential emissions impacts." 88 Fed. Reg. at 55903. In other words, EPA is using the Technology Review as a vehicle to implement Executive Order Number 12898, "Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations." 59 Fed. Reg. 7629 (February 16, 1994). But FO 12,898 does not augment EPA's authority under the CAA. See Youngstown Tube Co. v. ,S.cmyer, 343 U.S. 579, 588 (1952) ('The Constitution did not subject this law-making power of Congress to presidential or military supervision or control."). Rather, the Order directs EPA to adopt EJ requirements when "permitted by law," which the Agency is not in this case for the reasons described above. In addition to being unlawful, providing Fenceline Monitoring data to fenccline communities, as EPA has proposed, tells the public nothing useful about the potential emissions impacts from the facilities because the Proposed Rule "does not correlate to any particular metric related to risk," and because benzene is ubiquitous and the Proposed Rule does not ensure that emissions from offsite sources and non-source category emissions are excluded. 88 Fed. Reg. at 55886. The fugitive I IAP emissions monitoring data collected at SunCoke's I Iaverhill facility is publicly available on EPA's web site and provides more useful information concerning risk to fenceline communities than the proposed fenceline monitoring, demonstrating there is no impact on ambient HAP levels and that emissions arc below risk-based screening levels.'`' 3. The Proposed Rule Exceeds EPA's Authority Under CAA Section 112 Because It Does Not Ensure That Emissions From Offsite Sources Are Excluded Section 112 of the CAA does not authorize EPA to regulate ambient air. See W. Virginia v. IPA, 142 S. Ct. 2587, 2600 (2022) ("EPA, though, does not choose which sources must reduce Seelitl l cp:( Company, July 14, 2014) q-:ti r-qiu I ity-Liata: sec, a/sr) Attachment I-. (I.etter from Ohio EPA to I iaverhill Coke 39 Sierra Club FOIA 2025-EPA-04883 ED_018388_00000109-00040 SC_EVERSPLIT0005714