Davis County Solid Waste Management v. U.S. E.P.A.
| Decision Date | 21 March 1997 |
| Docket Number | 96-1015 and 96-1048,Nos. 95-1611,s. 95-1611 |
| Citation | 108 F.3d 1454 |
| Parties | , 323 U.S.App.D.C. 425, 65 USLW 2663, 27 Envtl. L. Rep. 20,729 DAVIS COUNTY SOLID WASTE MANAGEMENT and Energy Recovery Special Service District, a Utah political subdivision, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Before: WALD, GINSBURG and RANDOLPH, Circuit Judges.
Upon consideration of respondent's petition for rehearing on remedy, filed February 4, 1997, the responses thereto and of the reply, it is
ORDERED that the petition be granted for the reasons set forth in the attached opinion of the Court.
Respondent, the Environmental Protection Agency ("EPA"), requests rehearing on the remedy portion of the opinion entered in Davis County Solid Waste Management v. EPA, 101 F.3d 1395 (D.C.Cir.1996) ("Davis"). In Davis we held that the EPA violated the plain meaning of section 129 of the Clean Air Act, 42 U.S.C. § 7429 (1994), in 1995 when it promulgated emission standards for municipal waste combustor ("MWC") units because the EPA created categories of MWC units based on the aggregate municipal solid waste ("MSW") capacity of the plant at which a MWC unit was located instead of the MSW capacity of the unit itself. At oral argument counsel for the EPA had stated that all of the 1995 standards would need to be vacated were we to hold that section 129 required categorization of MWC units based on unit capacity. We therefore vacated the standards in their entirety. The EPA now asks us to reconsider our decision to vacate the standards in their entirety and instead to vacate the 1995 municipal waste combustor emissions limits only as they apply to MWC units with unit capacities below 250 tons/day ("small MWC units") and cement kilns, thereby retaining the new source performance standards ("NSPS") for new units with unit capacities of 250 tons/day or more ("large MWC units") and the emission guidelines for existing large MWC units pending the EPA's amendment of these standards on remand. According to the EPA, the recategorization of MWC units required by our Davis opinion will not alter the NSPS applicable to new large MWC units and will have only a nominal effect on the emission guidelines applicable to existing large MWC units, whereas vacating these standards will have a serious adverse environmental impact even if the EPA quickly repromulgates the standards. Petitioner Waste Energy Partners Limited Partnership supports the EPA's rehearing petition in full, while petitioner Davis County Solid Waste Management District supports only the EPA's request that we retain the 1995 NSPS for new units. Petitioner Cement Kiln Recycling Coalition takes no position on the EPA's rehearing request.
We agree with the EPA's claim that the recategorization of MWC units in light of our Davis opinion will not meaningfully affect either the NSPS or the emission guidelines for large units. As described in our initial opinion, see id. at 1398-99, section 129 requires that the EPA set emission standards for different categories of MWC units on a pollutant-by-pollutant basis using the maximum achievable control technology ("MACT") methodology. Under the MACT methodology, the emissions standards for new units in a category must be at least as stringent as "the emission control ... achieved in practice by the best controlled similar unit," while the standards for existing units must be at least as stringent as "the average emissions limitation achieved by the best performing 12 percent of units in the category." 42 U.S.C. § 7429(a)(2). The 1995 standards included, in essence, four separate sets of emissions limits: NSPS for new units with aggregate plant MSW capacities above 250 tons/day, NSPS for new units with aggregate plant capacities of 250 tons/day or less, emission guidelines for existing units with aggregate plant MSW capacities above 250 tons/day, and emission guidelines for existing units with aggregate plant capacities of 250 tons/day or less. 1 Our conclusion that section 129 required MWC units to be grouped by their unit MSW capacity rather than aggregate plant capacity meant that 45 existing MWC units--hereinafter referred to as the "Davis class" units--would have to be recategorized. The Davis class units have unit MSW capacities of 250 tons/day or less but are located at plants with aggregate MSW capacities above 250 tons/day. These units had been categorized with large MWC units because of their aggregate plant capacities, but after Davis would be grouped with small MWC units.
In our initial opinion, we noted that, given the MACT methodology, this recategorization of the 45 Davis class units would clearly affect the emissions guidelines applicable to existing small MWC units. The influx of Davis class units substantially increased the size of the small MWC unit category, thus at a minimum entailing that additional units would have to be considered in determining the best performing 12 percent of units; moreover, it appeared likely that many of the Davis class units had more advanced emission control systems than many other small MWC units, so that, unless the EPA subcategorized among small MWC units, the standards applicable to small MWC units would become significantly more stringent. See Davis, 101 F.3d at 1401, 1407-08, 1411. But we also acknowledged that the impact of the Davis decision on the other MWC emission standards was not clear, commenting that "it [was] not immediately apparent to us ... that all of the 1995 standards must be vacated," id. at 1411, because, given the MACT methodology, it seemed unlikely that the practical effect of the other standards would change. Although the 1995 standards did not mandate implementation of any specific air pollution control technology, in practice MWC operators would have to install specific pollution control systems to meet the emission limits contained in the standards, with the type of system being required varying with the type of MWC unit. Davis, 101 F.3d at 1397-1400. For example, the standards for new large units could only be met through use of, at a minimum, a spray dryer ("SD")/fabric filter ("FF")/carbon injection ("CI")/selective noncatalytic reduction ("SNCR") system. 2 We noted that the standards for new large units would change only if the shift of the Davis class units meant that there were no longer any large units employing the SD/FF/CI/SNCR technology, since the MACT methodology required that emission standards for new units be at least as stringent as the level of control achieved by the best controlled similar unit. Similarly, the 1995 emission guidelines for existing large units in practice required the use of a SD/FF or electrostatic precipitator ("ESP")/CI/SNCR system and would only be affected if the shift of the Davis units meant that the emission control achieved by 12 percent of the MWC units remaining in the large unit category required use of a different pollution control technology. 3
We nonetheless decided to vacate the 1995 standards in their entirety, despite our doubts about the need to do so, because of the difficulty in determining what effect the shift of the Davis class units would have on these standards for large units based on the record then before us and because at oral argument "counsel for the EPA stated that he believed the 1995 standards would need to be vacated in their entirety if we were to decide that MWC units had to be recategorized by unit capacity." Id. In its rehearing petition, the EPA now indicates that in fact recategorizing by unit capacity and the resultant shift of the Davis class units will not have any meaningful effect on the emission standards for new and existing large units and has supplied us with a detailed declaration by Walter H. Stevenson, senior EPA engineer and team leader on the MWC Project for the development of the 1995 standards, to explain why this is the case. According to the Stevenson Declaration, none of the Davis class units were used in determining the NSPS for new large units, and therefore none of the NSPS emission limits and other requirements will be affected by the shift of the Davis units. In particular, new units will still have to install SD/FF/CI/SNCR air pollution control technology. Stevenson Decl. p 4. Meanwhile, the shift of the 45 Davis units has reduced the pool of existing large MWC units to 164 units from 209 units, so that 12 percent of the units in the category now equals 20 units instead of the 25 units, and some of the Davis units had been used to determine the emission limits for certain pollutants in the 1995 emission guidelines. Hence, the EPA must now recalculate the MACT floor for each pollutant--the minimum emission standard allowed under section 129's MACT methodology--based on the average emission limitation achieved by the best performing 20 units of the units that remain in the large MWC unit category. Id. pp 7-8. But the Stevenson Declaration states that the recalculation will have only a nominal effect on the emission guidelines for existing large units. Since the EPA set the 1995 emission guidelines for several pollutants at levels that were more stringent than the MACT floors, the emission limits for all but four pollutants will remain the same and the changes in the limits for these four pollutants are slight. In only one instance will the recalculation result in an emission limit less stringent than that included in the 1995 emission guidelines. 4 Id. p 8. Moreover, large MWC units will need to employ the same emissions control technology, SD/FF or ESP/CI/SNCR, to comply with the limits in the revised guidelines as they would to comply with the limits in the 1995 emissions guidelines. Id. p 9. 5
On the other hand, the Stevenson Declaration makes clear that vacating the standards for large units could have significant...
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