Davis County Solid Waste Management v. U.S. E.P.A., s. 95-1611

• Decision Date: 06 December 1996
• Docket Number: 96-1015,Nos. 95-1611,s. 95-1611
• Citation: 101 F.3d 1395
• Parties: , 322 U.S.App.D.C. 107, 65 USLW 2438, 27 Envtl. L. Rep. 20,476 DAVIS COUNTY SOLID WASTE MANAGEMENT and Energy Recovery Special Service District, a Utah political subdivision, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. & 96-1048.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1395

101 F.3d 1395

43 ERC 1673, 322 U.S.App.D.C. 107, 65

USLW 2438,

27 Envtl. L. Rep. 20,476

DAVIS COUNTY SOLID WASTE MANAGEMENT and Energy Recovery

Special Service District, a Utah political

subdivision, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

Nos. 95-1611, 96-1015 & 96-1048.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 3, 1996.

Decided Dec. 6, 1996.

On Petition for Review of an Order of the Environmental Protection Agency.

Mary Anne Q. Wood, David P. Novello, Washington, DC and Warren K. Rich, Annapolis, MD, argued the causes for petitioners, with whom Richard G. Wilkins, Larry S. Jenkins, Timothy R. Henderson and Jennifer L. Wurzbacher were on the joint briefs. William D. Evans, Jr. entered an appearance.

John A. Sheehan and Eileen T. McDonough, Attorneys, United States Department of Justice, Washington, DC, argued the causes for respondent, with whom Lois J. Schiffer, Assistant Attorney General, was on the brief.

Before: WALD, GINSBURG and RANDOLPH, Circuit Judges.

WALD, Circuit Judge:

Davis County Solid Waste Management and Energy Recovery Special Service District and Waste Energy Partners Limited Partnership (collectively "petitioners") challenge the final standards governing municipal solid waste ("MSW") combustion that were promulgated by the Environmental Protection Agency ("EPA" or "agency") on December 19, 1995. See Standards of Performance for Municipal Waste Combustors and Emission Guidelines for Existing Sources, 60 Fed.Reg. 65,387 (1995) ("1995 Standards"). These standards, which implement sections 111 and 129 of the Clean Air Act ("CAA"), 42 U.S.C. §§ 7411, 7429 (1994), include new source performance standards ("NSPS") and emissions guidelines for a variety of substances and mixtures. The NSPS apply to new municipal waste combustor ("MWC") units, while the emission guidelines apply to existing MWC units.

According to petitioners, the 1995 standards exceed the EPA's statutory authority under the CAA because they are based on the aggregate MSW combustion capacity ("MSW capacity") of the plant at which a MWC unit is located, rather than on the MSW capacity of the MWC unit. Petitioners also argue that as applied to them the 1995 standards are arbitrary and capricious and that the EPA failed to comply with the CAA's procedural requirements in issuing the standards. Cement Kiln Recycling Coalition ("CKRC") argues that the EPA exceeded its statutory authority, acted arbitrarily and capriciously, and failed to comply with the CAA's procedural requirements in applying the standards to cement kilns. Since we agree with petitioners that the 1995 standards violate the plain meaning of section 129 and therefore vacate the standards, we do not reach petitioners' additional challenges or those of CKRC.

I. BACKGROUND

MSW is the waste generated by household, commercial, institutional and industrial sources, such as appliances, newspapers, food wastes, boxes and office paper. MSW is disposed of in landfills or by incineration, also referred to as combustion. According to the EPA, approximately 16 percent of the MSW generated in the United States today is combusted. 1995 Standards, 60 Fed.Reg. at 65,390, 65,392. Combustion of MSW results in the emission of various air pollutants, such as acid gases, organics, metals, nitrogen oxides and ash, some of which are considered to be carcinogens or to have other adverse effects when inhaled. See Assessment of Municipal Waste Combustor Emissions Under the Clean Air Act, 52 Fed.Reg. 25,399, 25,403-06 (1987) ("1987 Assessment"). Prompted by growing awareness about the potential hazards of air emissions from MWC units, as well as a petition from several states and environmental groups, in 1987 the EPA issued an advance notice of its intention to regulate MWC units under section 111 of the CAA, which requires the EPA to propose emission standards for sources that the EPA determines "causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare." 42 U.S.C. § 7411(b)(1)(A); 1987 Assessment, 52 Fed.Reg. at 25,399 (1987).

The EPA issued the proposed standards for MWC emissions in 1989. See Standards of Performance for New Stationary Sources: Municipal Waste Combustors, 54 Fed.Reg. 52,251 (1989) ("1989 Proposed NSPS"); Emission Guidelines: Municipal Waste Combustors, 54 Fed.Reg. 52,209 (1989) ("1989 Proposed Guidelines"). The proposed standards did not require that any particular technology be installed in MWC units to control emissions; rather, they established limits on the levels of certain pollutants that MWC units could emit, and derived these limits from studying the level of emissions achievable with the best pollution control technology. In establishing these emission limits, the standards distinguished among MWC units based on whether the unit was built after or was already existing at the time the standards were proposed and on the aggregate MSW capacity of the plant at which a MWC unit was located. MSW capacity was defined as the maximum amount of MSW that could be combusted daily at a unit, and aggregate MSW plant capacity was defined as the sum of the MSW capacities of all of the MWC units at the same location. 1989 Proposed NSPS, 54 Fed.Reg. at 52,255, 52,261-62; 1989 Proposed Guidelines, 54 Fed Reg. at 52,213, 51,219-20.

The proposed standards for new units located at plants with an aggregate capacity greater than 250 tons per day ("tons/day") ("large new units"), and existing units located at plants with an aggregate MSW capacity above 2,200 tons/day ("regional existing units"), were based on the emissions control achievable with the highest efficiency scrubber system, a spray dryer/fabric filter system ("SD/FF"). The standards for new units located at plants with an aggregate capacity of 250 tons/day or less ("small new units") and existing units located at plants with an aggregate MSW capacity above 250 tons a day and up to 2,200 tons/day ("large existing units"), were based on the emissions control achievable with an intermediate scrubber system, such as dry sorbent injection/fabric filter ("DSI/FF") system or a dry sorbent injection/electrostatic precipitator ("DSI/ EPS") system. ¹ The standards for existing units located at plants with an aggregate MSW capacity of 250 tons/day or less ("small existing units"), on the other hand, did not necessitate the use of any scrubber technology because the EPA decided that its cost for these small plants would be unreasonable. Instead, the standards for small existing MWC units only required that these plants employ an ESP, the minimum control technology available to reduce emissions of particulate matter, and, like all MWC units, follow good combustion practices ("GCP") and meet certain material separation requirements. ² 1989 Proposed NSPS, 54 Fed.Reg. at 52,254, 52,272; 1989 Proposed Guidelines, 54 Fed.Reg. at 52,012-52,228-30.

Congress responded to the EPA's 1989 proposed standards by enacting section 129, specifically addressed to solid waste incineration units, as part of Title III of the 1990 CAA amendments. Section 129(a)(1) directs the EPA to establish emission standards for solid waste incineration units, including NSPS directly applicable to new units and emission guidelines applicable to existing units by way of state implementation plans. ³ 42 U.S.C. § 7429(a)(1). Congress defined a "solid waste incineration unit" as "a distinct operating unit of any facility which combusts any solid waste material from commercial or industrial establishments or the general public." 42 U.S.C. § 7429(g)(1). Certain incinerators, such as units requiring permits under the Solid Waste Disposal Act or materials recovery facilities, were excluded from the definition of a solid waste incineration unit. Id. MSW was defined as "refuse ... collected from the general public and from residential, commercial, institutional and industrial sources" and units combusting a fuel stream that is comprised of 30 percent or less of MSW were excluded from the definition of MWC units and from the standards applicable to MWC units. ⁴ Id. § 7429(g)(5).

Section 129(a)(2) lays out the methodology the EPA must use in setting the emissions standards, referred to as maximum achievable control technology ("MACT") standards, and requires that the standards "shall reflect the maximum degree of reduction in emissions of ... [certain listed air pollutants] that the [EPA], taking into consideration the cost of achieving such emission reduction, and any non-air quality health and environmental impacts and energy requirements, determines is achievable for new or existing units in each category." Id. § 129(a)(2). The EPA "may distinguish among classes, types, ... and sizes of units within a category in establishing [MACT] standards," but the EPA's discretion to determine the stringency of MACT standards is limited; the MACT standards must be at least as stringent as the MACT floor. The MACT floor is defined as either "the emissions control ... achieved in practice by the best controlled similar unit" for "new units in a category," or as "the average emissions limitation achieved by the best performing 12 percent of units in the category" for existing units. Id. This description of the MACT methodology demonstrates that the demarcation of the relevant categories of solid waste incineration units is central to the regulatory scheme established in section 129. The importance of how a category of units is defined is clearest in regard to existing units, whose MACT floor is the lowest level of emissions achieved by the best controlled 12 percent of units in a category; the MACT floor will obviously be lower if the category includes more units with advanced pollution control devices than if the category contains fewer units with such devices. But how the categories are defined proves important also with respect to...