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