Dc Circuit

EM Feature DC Circuit Litigation Challenges HWC MACT Rules by Richard G. Stoll EPA established separate “source categories” for the three types of HWCs and imposed a different set of technologybased standards upon each type of HWC.6 The separate sets of standards are, in turn, supported by separate record documents, data, and responses to comments. For each type of HWC, EPA issued discrete standards for eight types of hazardous air pollutants (or surrogates for such pollutants): dioxins/furans (D/F), mercury, particulate matter (PM), semi-volatile metals (SVMs), low-volatile metals (LVMs), chlorine, carbon monoxide and hydrocarbons (CO/HC), and organic destruction and removal efficiency (DRE). Moreover, for each emission parameter, EPA set separate standards for new and existing facilities. Thus, the rules actually include 48 MACT standards, 16 for each HWC category. In addition to the MACT standards, EPA included implementation provisions such as detailed monitoring, testing, reporting, and record keeping requirements. In several significant respects, these provisions differ from the generally applicable implementation provisions EPA has issued for all other industry categories under the MACT program.7 In setting MACT standards for an industrial category under Section 112 of the CAA, EPA follows two basic steps. First, the agency determines a minimum stringency, or “floor” level, for new and existing sources in that category. For existing facilities, the floor level is generally set in reference to the “average emission limitations” already being achieved by a certain number of facilities in that category, while for new sources, the floor is based upon the “emission control that is achieved in practice” by the best controlled similar source.8 Second, EPA may go “beyond-the-floor” for an industrial category. That is, the agency may decide, based on certain factors specified in Section 112(d)(2) of the CAA, that the MACT standard should be more stringent than the floor level. Of the 48 separate MACT standards EPA established for HWCs, 44 are set at the “floor” and four are “beyond-the-floor.” EPA issued the HWC MACT rules in two stages. In 1998 in what it termed “Part 1” of the rules, the agency established certain notification requirements and devised a socalled “early cessation” requirement for facilities that opted to stop burning hazardous waste rather than comply with the new MACT standards.9 The “Part 2” provisions of the July 2001 Editors Note: This article and the article that follows on Page XX are based on presentations given at A&WMA’s Specialty Conference on Hazardous Waste Combustors, held March 28-30, 2001, in Kansas City, MO. Since EPA issued its final MACT rules for hazardous waste combustors in 1999, several industrial and environmnetal parties have filed judicial challenges in the DC Circuit Court. These challenges include fundamental, broadside attacks on EPA’s approaches to standard setting, as well as challenges to specific standards and to administrative/procedural provisions in the rules. Considering EPA’s track record in the DC Circuit over the past few years, the court’s decision could result in the nullification of significant provisions of the HWC MACT rules. This article examines the background to the DC Circuit litigation in order to identify the issues being raised and explain the potential impacts if the parties prevail in their judicial challenges. INTRODUCTION On September 30, 1999, the U.S. Environmental Protection Agency (EPA) issued a complex set of rules, entitled “NESHAPS: Final Standards for Hazardous Air Pollutants for Hazardous Waste Combustors.”1 In these rules, which are generally referred to as Maximum Achievable Control Technology (MACT) standards, EPA established emission standards for three types of hazardous waste combustors (HWCs): incinerators, cement kilns (CKs), and lightweight aggregate kilns (LWAKs). As explained by the U.S. Court of Appeals for the DC Circuit in Chemical Manufacturers Association, et al. vs. EPA,2 EPA has for years regulated emissions from all three types of HWCs through “health-based” standards under Subtitle C of the Resource Conservation and Recovery Act (RCRA).3 The RCRA standards already provide that HWCs will “operate under conditions ‘sufficient to protect human health and the environment.’”4 Therefore, EPA issued the MACT rules under the “technology-based” provisions of Section 112(d) of the Clean Air Act (CAA).5 EM 15 EM Feature rules were issued in 1999 and established the substantive emission standards and the monitoring and compliance measures outlined above. “PART 1” PROCEDURAL RULES ALREADY VACATED BY DC CIRCUIT EPA must set MACT compliance dates for each source category. Under CAA Section 112(i)(3)(A) of the CAA, affected sources must achieve compliance “as expeditiously as practicable,” but no later than three years after the effective date of the MACT standard.10 In the 10 years EPA has implemented its MACT authority, it has always established a uniform compliance date for each source category. In the 1998 “Part 1” HWC rule, however, EPA established an “early cessation” requirement under which not all sources in a category would have the same compliance date. Rather, it established a phased notification scheme under which each source would be required within one and two years after the rule’s effective date either to (a) demonstrate sufficient progress toward compliance with the new MACT standards, or (b) declare its intent to stop burning hazardous waste. Sources declaring their intent not to comply with the new MACT standards would, under this early cessation rule, be required to cease burning hazardous waste no later than two years after the new MACT rule’s effective date, while sources that declared their intent to comply with the new MACT rule would be given three years to comply. EPA also created two new types of notification documents that had to be filed in connection with the early cessation requirement: the “notification of intent to comply” (NIC), which had to be filed by September 30, 2000, and the “progress report,” which had to be filed by September 30, 2001. Two trade associations—the American Chemistry Council (formerly the Chemical Manufacturers Association) and the Cement Kiln Recycling Coalition (CKRC)—challenged the early cessation rule in the DC Circuit Court. They challenged the rule primarily on “reasoned decision-making” grounds, arguing that while EPA concluded that the rule would produce “numerous benefits for human health and the environment,” the agency had offered no support for such a conclusion, and in fact, the rule would result in no benefits to human health and the environment. The associations argued that if a HWC ceased burning hazardous waste at the end of the second year, the waste that facility would have burned would in all likelihood be sent to another HWC for burning. Thus, during the third year, even though waste might be moved from one facility to another, there would be no overall reduction in emissions. The industrial parties also challenged the NIC and progress report requirements, claiming them to be unnecessary, arbitrary, and capricious. In an opinion by Judge David S. Tatel, the DC Circuit vacated all three provisions that the industrial petitioners had challenged: the early cessation requirement, NIC, and progress 16 report. The court summarized its views quite strongly: “[W]e think that the agency’s action represents a classic case of arbitrary and capricious rulemaking.”11 Agreeing with the petitioners’ arguments about the lack of any benefits, the court found that EPA had failed to “articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choice made.”12 The court noted that EPA’s assertion that there were “numerous” health and environmental benefits from its early cessation rule was not supported by any reasoning. In fact, the court pointed out that the possibility of environmental harm might be increased during the third year because an increase in the movement of wastes could increase the chances of leakage or spillage.11 The court said the CAA’s purpose was to protect and enhance air quality so as to promote the public health and welfare. But since EPA could not explain why there were any environmental benefits, the court held that it was “unreasonable for the agency to have interpreted the phrase ‘compliance as expeditiously as practicable’ as requiring it to impose costly obligations on regulated entities without regard to the Clean Air Act’s purpose.”13 STATUS OF CURRENT “PART 2” LITIGATION The Parties Fourteen parties are currently before the DC Circuit seeking to challenge the “Part 2” provisions of the MACT rules from various angles. In the broadest sense, the parties may be subdivided into three categories: (1) industry petitioners challenging various requirements as being overly stringent or unnecessary; (2) an industry petitioner—the Environmental Technology Council (ETC)—challenging a provision that gives certain relief to that petitioner’s competitors; and (3) a national environmental group—the Sierra Club (Sierra)—challenging the regulations for not being stringent enough. The first group may be further subdivided into parties who represent the three basic types of HWCs: CKs, LWAKs, and incinerators. These parties are: (CKs),CKRC, Ash Grove Cement Company, Continental Cement Company, Holnam Inc., and Lafarge Corporation; (LWAKs) Solite Corporation; (incinerators) American Chemistry Council, BASF Corporation, Coalition for Responsible Waste Incineration (CRWI), The Dow Chemical Company, LWD Inc., and Onyx Environmental Services. For convenience, I will collectively refer to the first group as “Industry Petitioners.” Severance, Settlement Track for Some Issues As is common when the DC Circuit is presented with multiparty challenges to complex EPA rules, the court directed the parties to present a joint proposal for the briefing format and schedule. In spring and summer 2000, the parties met frequently with EPA in an effort to determine whether and to what extent some of the many issues that had been identified as potential litigation issues could be “severed” from the litigation and placed on a so-called “settlement track.” The EM July 2001 parties ultimately agreed to sever 29 issues from the litigation (see “Severed Issues,” Page XX). Those issues that were not severed would proceed to briefing and oral argument. In the meantime, the parties would meet and try to settle as many of the severed issues as possible over the next several months. In the future, as it becomes clear which issues will be satisfactorily resolved through settlement and which will not (this has not yet been determined), the parties would return to the court and move to dismiss the settled issues and move to brief and argue the unsettled ones. As for the issues to be briefed, the parties agreed to a schedule under which all briefs would be filed by January 18, 2001. The court then established April 24, 2001, as the date for oral argument, and oral arguments have now been held. The panel of three judges for the oral arguments consisted of Judges Randolph, Rogers, and Tatel. (Judge Tatel wrote the opinion in favor of CKRC and CMA in Chemical Manufacturers Association, et al. vs. EPA discussed above.) Based upon observations of the DC Circuit over the past few years, one might expect the final decision from the court on the currently litigated issues in late 2001 or early 2002. As is common in multiparty cases, EPA is getting directly hit from opposing sides on some major issues. For instance, on EPA’s basic methods and approaches to setting MACT standards, Sierra is making a broad-scale attack that EPA has misapplied the statute in a way that produces overly lenient standards. Industry Petitioners, on the other hand, are making directly contrary arguments, leaving EPA in the middle. On many other issues, however, Industry Petitioners and ETC are focusing on discrete parts of the MACT rules that they believe the court should vacate. Industry Petitioners Challenge EPA Rules Industry Petitioners are bringing the greatest number of discrete challenges. The following discussion identifies the specific challenges, briefly summarizes the position, and states what type of impact a victory on the issue would produce. EPA’s basic approach to setting MACT floor levels is illegal. For existing sources, the CAA specifies that the so-called “MACT floor” should be based upon “the average emission limitation achieved by the best performing 12% of the existing sources [emphasis added].”8 The CAA defines “emission limitation” to mean “a requirement established by the State or the Administrator, which limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis.”14 Industry Petitioners argued that for most of the MACT floor levels EPA established, the agency did not use true regulatory emission limitations as defined by the CAA, but instead used test data that showed limits that sources were actually achieving. For instance, assume that a regulatory emission limitation applicable to a particular source was 30x, but that test Severed Issues Standards Issue Severed from Industry Petitioners’ Opening Brief 1. Site-specific PM standard for when an incinerator uses carbon injection. Compliance, Implementation Issues Severed from Industry Petitioners’ Opening Brief 1. 2. 3. Operation and maintenance (O&M) requirements for baghouses at LWAKs. Operator training and certification requirements for LWAKs and incinerators are too broad. Issues related to location of CO/HC monitors at CKs, whether both CO/HC need to be continuously monitored, and how exceedances of monitor span values are to be averaged. Requirement that CO/HC monitoring be conducted in a cement kiln’s main stack if the kiln burns waste at locations other than the discharge end of the kiln. Use of “average of the average” values for implementation. Provisions that allow EPA or a state to specify additional or alternative requirements. Timing of replacement carbon beds in certain combustion units. Definition of hazardous waste residence time and related provisions. Requirement for CKs to maintain minimum combustion temperature. Requirement to conduct a comprehensive performance test (CPT) before EPA has completed its review of the facility’s test plan. Requirement to cease burning hazardous waste if a facility fails CPT, even if test is conducted before compliance date. Unnecessary restrictions in destruction removal efficiency “data in lieu o f ” provisions for CPT. Requirement to maintain instantaneous negative pressure. Baghouse monitoring issues for incinerators. Impossibility of demonstrating that extrapolation of metal feedrate limits is as accurate as spiking. Arbitrarily narrows the operating window for confirmatory testing, including confirmatory testing range for CO and other parameters. Improperly requires only Method 0023A to monitor D/F. Provisions regarding “ramping down waste feed” are arbitrarily inflexible. One-time notification of compliance with other MACT standards. Calibration of thermocouples and weight-measurement devices. Consistency once NIC is submitted. Rolling average restarts after automatic waste feed cutoffs. Requirement to set conflicting operating parameter limits during testing. Feedrate limits for nondetectable constituents. Definition of demonstration source for research, development, and demonstration source exemption. Requiring feedstream analysis for all organic HAPs in all circumstances. In-line raw mills performance testing (different modes of operation and establishing equilibrium). 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 1 Compliance, Implementation Issue Severed from ETC’s Opening Brief 1. Any exceedance of an operator parameter limit with hazardous waste in the combustion chamber is deemed a permit violation, even though EPA admits that MACT emission limit is not necessarily exceeded July 2001 EM 17 EM Feature data showed the source to actually be achieving a level of 15x. For many of the standards, EPA used the 15x rather than the 30x in calculating floor levels. EPA used this test data approach for almost all the MACT standards. Prominent exceptions are the DRE standard for incinerators, the PM standard for CKs, and the CO/HC standard for LWAKs. EPA’s first line of defense is that Industry Petitioners did not make this argument before the agency in their rulemaking comments and are therefore now barred from making it before the court. EPA also contends that case law and legislative history indicate that the statute should not be read so literally. If Industry Petitioners prevail on this argument, presumably the court would vacate most of the MACT standards, and EPA would be forced to go through a new rulemaking and base all of its MACT floors on emission limitations as defined in the CAA. 2 The CK and LWAK mercury standards should be vacated. Industry Petitioners argued that in addition to the fundamental problem of using test data instead of emission limitations to set the floor levels, the data EPA used were not sufficiently representative of the foreseeable variability in the hazardous waste fuel. Since the DC Circuit has already ruled that MACT standards must account for a full range of variability,15 the standards are not “achievable” as required by the CAA. EPA countered that its approach accommodates a “reasonable” amount of variability. The agency argued, however, that it was not required to set MACT standards based upon the emission levels “that would result from burning the most contaminated hazardous wastes.” 3 4 Various LWAK standards should be vacated. Solite argued that various standards set for LWAKs—chlorine, D/F, and PM—should be vacated based largely onarguments similar to those mentioned above. EPA defended in a similar manner to parts 1 and 2. EPA’s beyond-the-floor SVM standard for CKs should be acated, and EPA cannot base MACT standards on “feedrate” controls. For SVM, EPA set the same numerical standard, 240 µg per dry standard cubic meter (dscm), for both incinerators and CKs. The incinerator standard was a floor level, while the CK standard went well beyond the floor level of 650 µg/dscm. CKRC and the cement kiln petitioners attacked the CK standard on several grounds. They argued that EPA did not have any basis in the statute to set the CK standard so low, and that the agency was illegally attempting to influence competitive market conditions in favor of commercial incinerators (as the 240 level would be far more costly for CKs to meet). They also argued that when the cost effectiveness and environmental benefits of going beyond the floor are examined, the beyond-the-floor standard is shown to be wholly irrational. 18 As EPA set the SVM (and other) standards by reference to plants using low “feedrates,” CKRC and the cement kiln petitioners also made a broad-scale challenge to EPA’s ability to use feedrates as a measure of the “best performing” facilities in establishing MACT standards. The petitioners argued that CKs had been controlling feedrates only as a method of measuring compliance with Boiler and Industrial Furnace Regulations (BIF) emission standards, and that the BIF standards were set on site-specific bases that account for topography and meteorology. In other words, the petitioners argued that it was arbitrary and capricious for EPA to equate lower feedrates with better performance under the terms of the statute. They argued that there is no logical endpoint if one assumes that lower feedrates equal better performance, as zero would then become the best. They stated that standards that had the effect of limiting the amount of hazardous waste combusted, where there was no health or environmental basis for doing so, would run counter to RCRA, which promotes recycling of hazardous wastes for energy recovery purposes and demands that many hazardous wastes be combusted prior to land disposal. EPA denied it had set the CK SVM standard in an attempt to manipulate market competition, arguing that the identical standards for incinerators and CKs met a “potential policy objective” of treating different types of HWCs equally. EPA also claimed that the statute authorized it to assure that there was no “gross disparity” in numerical standards among various types of HWCs, and that the 650 CK floor and the 240 incinerator floor would have constituted such a gross disparity. EPA argued that the petitioners’ points about no health and environmental benefits were irrelevant, since MACT standards are technological- and not risk-based. With respect to feedrates, EPA strongly defended its approach throughout several sections of its brief. EPA took the position that lower feedrates were equated with better “performance.” The agency stated that hazardous waste feedrate is a MACT technology, citing Section 112(d)(2)(A) of the CAA, which authorizes EPA to consider measures that “reduce the volume of such pollutants through process changes, substitution of materials, or other modifications.”16 If the cement kiln petitioners succeed with their feedrate arguments, presumably a large number of the MACT standards EPA has issued for all types of HWCs would be vacated. For each of the three basic types of HWCs, EPA based the standards for SVM, LVM, mercury, and chlorine on feedrate controls. 5 The new source SVM standard for incinerators should be vacated. The American Chemistry Council and other incinerator interests argued that the new source SVM standard for incinerators should be vacated because EPA had improperly relied on feedrate control in establishing the standard. They did not argue the more fundamental point that EPA could never use feedrate controls in establishing MACT EM July 2001 standards (see part 4). Rather, they argued that the particular database EPA had used with respect to incinerators was limited, that the feedrates examined were based more on “happenstance” than true control, and that EPA’s actions in this particular rulemaking were arbitrary and capricious. They also argued that EPA had not sufficiently accounted for variability in wastes fed. EPA once again characterized the petitioners’ arguments as a plea to be allowed to burn “the most contaminated waste they might ever burn.” EPA argued that it was well within the incinerators’ capability to control the rate at which hazardous constituents are fed to the incinerator by burning at a slower rate and/or by blending, and that it was within EPA’s authority to force compliance with such measures. EPA also argued that its standard provided sufficient flexibility. The one-hour averaging period for temperature to control D/F from CKs should be vacated. As an interim measure to demonstrate compliance with the CK D/F standards between actual compliance tests, the rule requires CKs to meet a limit based on an hourly rolling average even though the limit is based on the average temperature achieved during a nine-hour test (three three-hour tests). The cement kiln petitioners argued that this was “patently arbitrary and capricious” as judicial precedents have long held that use of a test method to demonstrate compliance that is more stringent than the standard itself is in effect changing the standard. They also argued that EPA had been more lenient in the MACT rule for nonhazardous waste-burning CKs, and that the record demonstrated that there was no basis to treat hazardous wasteburning CKs any differently with regard to D/F. EPA defended its rules by saying that dioxin increases associated with temperature increases occur in a nonlinear, exponential fashion, and that it needed to be conservative with regard to dioxins. The one-hour average requirement would accordingly “better assure compliance.” EPA also argued that its more stringent approach was based on authority in Section 114(a)(3) of the CAA for “enhanced monitoring,” even though EPA had never relied on this authority when issuing the standard.17 As to the inconsistency between hazardous waste-burning and nonhazardous waste-burning CKs, EPA said the latter were “somewhat less well-equipped to comply” with a one-hour average requirement. EPA’s requirements regarding startup, shutdown, and malfunction plans (SSMPs) and emergency safety vents (ESVs) should be vacated in part. The MACT rules require that emission standards be met at all times when hazardous waste is in the combustion chamber, and do not provide an exception during times when a SSMP plan has kicked in (for all HWCs) or for when ESVs must be used (for incinerators). With respect to SSMPs, this is inconsistent with the “general provisions” for every other MACT standard EPA has issued. 6 Industry Petitioners argued that the narrow escape mechanisms provided by SSMPs and ESVs were critical to ensure that violations not be created when technical/engineering factors made compliance impossible due to factors beyond the reasonable control of the owner-operator. They also argued it was arbitrary and capricious for EPA to deviate from the allowances provided in every other MACT standard, and that demanding compliance even when compliance was technologically impossible rendered the standards “unachievable” in violation of the statute. EPA defended on the grounds that the RCRA standards that had preceded the MACT standards had contained no such exceptions, and therefore, the agency was not required to include them in MACT standards. EPA also stated that incinerators could take steps to avoid the use of ESVs, so it was not unreasonable to hold incinerators in violation of the law should an ESV need to be used. ETC, Sierra Raise Separate Challenges ETC brought a separate challenge to the provision in the MACT rules that allow CKs to seek an “alternative standard” for SVM, LVM, mercury, or chlorine. EPA’s “alternative” procedure allows a CK to apply for a different numerical standard and attempt to demonstrate that it cannot comply with the normal standard because of metal or chlorine concentrations in its raw materials (as opposed to the hazardous waste). In a separate brief, Sierra launched a broad-scale attack against the most fundamental precepts of EPA’s MACT standard-setting approach. Sierra argued that EPA was ignoring the plain words of the statute, which Sierra believes impose rigid requirements upon EPA simply to base MACT floors on the average of the lowest 12% of the emission points in the database. As EPA characterizes the Sierra challenge, the agency would not be allowed to account for variability, and thus, the “achievability” called for by the statute could not be secured. EPA also argues that the DC Circuit has already rejected the main thrust of Sierra’s argument in an earlier case and has stressed that the CAA requires the standards must be achievable by the best performing sources under conditions of expected variability (under the “most adverse circumstances which can reasonably be expected to recur”).18 If Sierra were to succeed in its challenge, EPA would be forced to re-write virtually all of its standards—and as a result, the rules would be dramatically more stringent. EPA included a table in its brief to dramatize this point. For example, EPA argued that the current beyond-the-floor SVM standard for existing CKs of 240 µg/dscm would become a floor standard of 12.8 µg/dscm. [Author: Is 12.8 µg/dscm correct? Not 128 ?] Issues Settled Early in Litigation Process Industry Petitioners had briefed two additional issues that they settled with EPA before the agency filed its brief: 1. “Cell-by-cell” and “field-by-field” — EPA’s final rules required that PM monitoring be accomplished in July 2001 7 EM 19 EM Feature “each cell” in a baghouse and “each field” of an electrostatic precipitator (ESP), even though the proposed rule had merely provided for monitoring “across the baghouse” and “in the ESP.” Industry Petitioners showed how EPA had never proposed “each cell” and “each field” requirements and no one had sought them in written comments. EPA, therefore, had absolutely no legal defense, and voluntarily moved that the court vacate the offending provisions. 2. “Affected source” definition for incinerators — By not supplying a specific definition of “affected source” that applied to incinerators, EPA had left totally unclear which facilities might be deemed “new” and which might be deemed “existing.” After the incinerator parties had demonstrated how this was arbitrary and capricious in their opening brief, EPA agreed to settle the matter and has since undertaken to provide an appropriate definition. Potential Impact of New National Lime Opinion In 1999, EPA issued MACT standards for CKs that do not burn hazardous waste, and Sierra and other petitioners immediately brought challenges in the DC Circuit. The cases were consolidated under the name National Lime Association vs. EPA. On December 15, 2000, the DC Circuit issued its opinion in National Lime and on certain issues ruled in favor of the Sierra in ways that could potentially affect the outcome of the currently pending HWC MACT challenges.19 First, the court upheld EPA’s approach of setting MACT standards by examining performance under a control method that is used by the best performing sources and then examining a fuller database of plants using that control method to assure that variability will be accounted for. That is, EPA often identifies its “best performing” sources before it identifies what kind of technology those sources are using. Then, using an expanded database that examines all sources that use the particular technology so that it can fully account for variability, EPA sets its standards. National Lime reaffirms the prior Sierra Club ruling18 that the MACT standards must account for variability within the class of best performing sources recognizing the “most adverse circumstances, which can reasonably be expected to recur.” In language that may not bode so well for Industry Petitioners (and for industry in general), however, the court agreed with Sierra that EPA had erred when it had focused only on technology in deciding which hazardous air pollutants (HAPs) to regulate. Moreover, EPA had declined to set MACT standards for hydrochloric acid, mercury, and total hydrocarbons because the agency had found there was no pollution control device, or “technology,” currently being employed in the industry to control such HAPs. (EPA had set MACT standards for hazardous waste-burning CKs for these HAPs based upon feedrate controls rather than pollution control technology.) 20 The court ruled that this was no reason for EPA not to regulate these HAPs, and remanded the matter to EPA to develop standards. The court stated: “Contrary to EPA’s argument, nothing in Sierra relieves it of the clear statutory obligation to set emission standards for each listed HAP. Although Sierra permits the agency to look at technological controls to set emission standards, see 167 F.3d at 665, it does not say that EPA may avoid setting standards for HAPs not controlled with technology.... “Section 112(d)(2)(A) directs the agency, in determining the maximum degree of achievable emission reductions, to consider pollution-reducing measures, including “process changes, substitution of materials, or other modifications.” By focusing only on technology, EPA has ignored this directive. The Clean Air Act’s legislative history confirms that Congress wanted the agency to consider more than just pollution control technology: The technologies, practices, or strategies, which are to be considered in setting emission standards under this subsection, go beyond the traditional end-of-the-stack treatment or abatement system. The Administrator is to give priority to technologies or strategies that reduce the amount of pollution generated through process changes or the substitution of materials less hazardous. Pollution prevention is to be the preferred strategy wherever possible.”20 One could argue that the National Lime opinion tends to be inconsistent with the feedrate arguments made by the cement kiln petitioners in the HWC MACT litigation (see part 4 above). This may be especially troublesome, one could argue, because this part of the National Lime opinion was authored by Judge Tatel, one of the judges assigned to the HWC MACT case. The cement kiln petitioners do not believe the logic of the opinion should apply to hazardous waste-burning CKs and other HWCs, however. They believe that RCRA operates as an independent legal basis to impose restraints on EPA’s ability to require feedrate reductions. First, the entire RCRA land disposal restrictions (LDR), or “land ban,” program is built upon the assumption of adequate capacity for combustion of many hazardous wastes. Second, RCRA affirmatively encourages the beneficial recycling of many hazardous wastes through energy recovery programs. Imposing restraints on hazardous waste combustion going beyond technology considerations and health and environmental protection levels, the cement kiln petitioners believe, would simply run afoul of EPA’s obligations to administer RCRA as Congress intended. Moreover, the petitioners believe the position on “emission limitations” being a pivotal part of the MACT floor determination (the first issue discussed above under the challenges made by Industry Petitioners) should be convincing to the court. If it is, this would substantially undercut the force of the potentially troublesome language cited above from National Lime. EM July 2001 CONCLUSION Over the past few years, EPA has been losing major cases in the DC Circuit Court with increasing frequency, and the DC Circuit has already ruled that major aspects of the HWC MACT rules “represent a classic case of arbitrary and capricious rulemaking.” These EPA losses have not always favored industry groups, however, as the recent National Lime opinion shows. Parties interested in the HWC MACT rules should pay close attention to the upcoming litigation on the “Part 2” HWC MACT rules, as many fundamental provisions are truly up for grabs. Just as the court nullified three key provisions of the rules in its Chemical Manufacturers Association, et al. vs. EPA opinion,2 the court could nullify additional provisions of the regulations when it renders its new opinion in the next few months. A significant win by Sierra could produce much more stringent provisions, and wins by Industry Petitioners on various issues could force EPA back to the drawing board and produce more palatable provisions for affected facilities. Moreover, if the industry position prevails on the need to focus on emission limitations in setting the MACT floor, EPA could have to change the way it sets MACT standards for all industries in the future. 0.5 Page Ad REFERENCES 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 40 CFR, Part 63, §§ 1200-1213, 1999. Chemical Manufacturers Association, et al. vs. EPA, 217 F.3d 861, 862 (DC Cir. 2000). Horsehead Resource Development Co. vs. Browner, 16 F.3d 1246 (DC Cir. 1994). Chemical Manufacturers Association, et al. vs. EPA, 217 F.3d 862 (DC Cir. 2000). Clean Air Act; Section 112(d), 1990. Compare 40 CFR, §§ 63.1203 (incinerator standards), 63.1204 (cement kiln standards), and 63.1205 (lightweight aggregate kilns standards). See, for example, 40 CFR, Part 63, Subpart A (general implementation provisions for MACT standards). Clean Air Act; Section 112(d)(3). Hazardous Waste Combustors. Fed. Regist. 1998, 63 (118), 33782 et seq. Clean Air Act; Section 112(i)(3)(A). Chemical Manufacturers Association, et al. vs. EPA, 217 F.3d 865 (DC Cir. 2000). Ibid. at 866. Ibid. at 867. Clean Air Act; Section 302(k). Sierra Club vs. EPA, 167 F.3d 658 (DC Cir. 1999). Clean Air Act; Section 112(d)(2)(A). Clean Air Act; Section 114(a)(3). Sierra Club vs. EPA, 167 F.3d 658, 665 (DC Cir. 1999). National Lime Association vs. EPA, 233 F.3d 625 (DC Cir. 2000). Ibid. at 634. About the Author Richard G. Stoll is a partner in the Washington, DC, law office of Foley & Lardner, focusing on federal administrative law and judicial review of federal agency rules, as well as environmental law. He is past chair of the American Bar Association’s Section on Environment, Energy, and Resources, and has been listed in each edition of The Best Lawyers in America since 1988. July 2001 EM 21