A Scrivener's Error or Greater Protection of the Public: Does the Epa Have the Authority to Delist 'Low-Risk' Sources of Carcinogens from Section 112's Maximum Available Control Technology Requirements?

Section 112 of the Clean Air Act requires the EPA to establish national emission standards for hazardous air pollutants. It regulates sources, such as factories and power plants, that emit listed air toxics. The EPA is required to issue emissions standards based on the maximum available control technology (MACT) for each category of major sources of air toxics. The article focuses on the scope of the EPA's authority to delist categories or subcategories of sources, especially those emitting carcinogens, from the MACT standard. In its plywood and composite wood industries (PCWP) rule, the EPA contended that it has the authority to exempt a subcategory of low-risk sources releasing carcinogenic chemicals because it assumed that Congress had made a drafting error in subsection 112(c)(9)(B)(i) by using only the term category but not the term subcategory. This argument for the PCWP sources could be expanded to many other industrial MACT categories, potentially exempting thousands of other sources. In rare cases, courts have recognized the doctrine of scrivener's error to correct obvious errors in a statute, but there is a heavy burden on an agency to demonstrate that a statute contains a scrivener's error. The article concludes that the EPA's creation of a low-risk subcategory of PCWP sources is improper because the plain language of the statute's subsection limits the Agency's delisting authority to whole categories of carcinogenic sources.