Cement Kiln Recycling Coalition v. Envtl. Protection Agency

• Decision Date: 24 July 2001
• Docket Number: 99-1486,99-1477,99-1490,99-1485,99-1480,99-1483,Nos. 99-1457,s. 99-1457
• Citation: 255 F.3d 855
• Parties: (D.C. Cir. 2001) Cement Kiln Recycling Coalition, et al., Petitioners v. Environmental Protection Agency and Christine Todd Whitman, Administrator, Respondents Dow Chemical Company, et al., Intervenors to 99-1498. United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 855

255 F.3d 855 (D.C. Cir. 2001)

Cement Kiln Recycling Coalition, et al., Petitioners v. Environmental Protection Agency and Christine Todd Whitman, Administrator, Respondents

Dow Chemical Company, et al., Intervenors

Nos. 99-1457, 99-1477, 99-1480, 99-1483, 99-1485, 99-1486, 99-1490 to 99-1498.

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 24, 2001

Decided July 24, 2001

No. 99-1457

On Petitions for Review of an Order of the Environmental Protection Agency

James S. Pew argued the cause for petitioner Sierra Club. With him on the briefs was Howard I. Fox.

Jeremiah J. Jewett, III, David P. Novello, Ronald A. Shipley, and Scott H. Segal argued the cause for Industry Petitioners. With them on the briefs were Richard G. Stoll, Michael W. Steinberg, Terry J. Satterlee, Alok Ahuja, Karl S. Bourdeau David M. Friedland, Aaron H. Goldberg, Lisa M. Jaeger, David R. Case, Thomas G. Echikson, James N. Cahan, William M. Bumpers, David A. Smart, and Douglas H. Green.

David R. Case argued the cause and filed the briefs for petitioner Environmental Technology Council.

Richard G. Stoll, David P. Novello, Michael W. Steinberg, Ronald A. Shipley, Karl S. Bourdeau, David M. Friedland, Aaron H. Goldberg, Scott H. Segal, Lisa M. Jaeger, David R. Case, William M. Bumpers, and Jeremiah J. Jewett, III were on the brief for industry intervenors. Joshua D. Sarnoff entered an appearance.

Lois Godfrey Wye and Norman L. Rave, Jr., Attorneys, U.S. Department of Justice, and Steven E. Silverman, Attorney, Environmental Protection Agency, argued the cause for respondents. With them on the brief was Lois J. Schiffer, Assistant Attorney General at the time the brief was filed, U.S. Department of Justice. Christopher S. Vaden, Attorney, U.S. Department of Justice, entered an appearance.

James S. Pew and Howard I. Fox were on the brief for intervenor Sierra Club.

David R. Case was on the brief for intervenor Environmental Technology Council.

Before: Randolph, Rogers and Tatel, Circuit Judges.

Opinion for the Court filed Per Curiam.^*

Per Curiam:

In this case, industry and environmental petitioners challenge EPA air pollution standards for hazardous waste combustors. Because the standards fail to reflect the emissions achieved in practice by the best-performing sources as required by the Clean Air Act, we remand to the Agency for further proceedings. In all other respects, we deny the petitions for review.

I

Until 1990, the Clean Air Act ("CAA"), 42 U.S.C. §§ 74017671q, required the Environmental Protection Agency to set risk-based air pollution standards that would provide an "ample margin of safety to protect the public health." Id. 7412(b)(1)(B) (1990); see also H.R. Rep. No. 101-490, at 151, 322 (1990). To address problems with the implementation of risk-based regulation, Congress amended the Act in 1990 to require EPA to set the most stringent standards achievable, 42 U.S.C. 7412(d)(2), that is, standards "based on the maximum reduction in emissions which can be achieved by application of [the] best available control technology." S. Rep. No. 101-228, at 133 (1989).

The 1990 amendments included the provision at issue in this case--42 U.S.C. 7412(d)--which directs EPA to set standards limiting emissions of listed hazardous air pollutants ("HAPs"), id. §§ 7412(b), (c)(1)-(2), from major stationary sources. Section 7412(d)(2) provides that:

Emission standards ... shall require the maximum degree of reduction in emissions of the hazardous air pollutants subject to this section ... that the Administrator, 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 sources....

Supplementing this general guidance, Congress imposed minimum stringency requirements--EPA calls them "emission floors"--which "apply without regard to either costs or the other factors and methods listed in section 7412(d)(2)." Nat'l Lime Ass'n v. EPA, 233 F.3d 625, 629 (D.C. Cir. 2000) ("National Lime II"). For "new sources"--factories or other sources on which construction begins after EPA publishes emission standards, 42 U.S.C. 7411(a)(2)--"[t]he maximum degree of reduction in emissions that is deemed achievable ... shall not be less stringent than the emission control that is achieved in practice by the best controlled similar source...." Id. 7412(d)(3). For existing sources, what EPA deems achievable "shall not be less stringent than[ ] the average emission limitation achieved by the best performing 12 percent of the existing sources (for which the Administrator has emissions information)...." Id. As we explained in National Lime II, EPA implements these requirements through a two-step process: the Agency first sets emission floors for each pollutant and source category and then determines whether stricter standards, known as "beyond-thefloor" limits, are achievable in light of the factors listed in section 7412(d)(2). 233 F.3d at 629.

Hazardous waste combustors ("HWCs"), the focus of this case, are also subject to regulation under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 69016992k, which "establishes a comprehensive 'cradle to grave' regulatory program for the treatment, storage, and disposal of hazardous waste." Horsehead Res. Dev. Co. v. Browner, 16 F.3d 1246, 1252 (D.C. Cir. 1994). A pre-1990 risk-based statute, RCRA directs EPA to set standards for hazardous waste-burning facilities that "protect human health and the environment." 42 U.S.C. 6924(q)(1). Both Congress and EPA have acknowledged the overlap between RCRA and the CAA. Indeed, the CAA itself directs the Administrator to "take into account any regulations of such emissions which are promulgated under [RCRA] and ... to the maximum extent practicable ... ensure that the requirements of [RCRA] and [section 7412] are consistent." Id. 7412(n)(7). Hazardous waste combustors must have RCRA permits for stack air emissions until they can demonstrate compliance with CAA standards through required tests; once a source complies with the CAA, it no longer needs a separate RCRA permit. Final Standards for Hazardous Air Pollutants for Hazardous Waste Combustors, 64 Fed. Reg. 52,828, 52,833 (Sept. 30, 1999).

In 1999, acting pursuant to CAA section 7412(d) and following notice and comment, EPA issued standards limiting emissions from three types of HWCs: incinerators that destroy hazardous waste; cement kilns that use hazardous waste as fuel in the cement-manufacturing process; and lightweight aggregate kilns that use hazardous waste as fuel to produce lightweight aggregate concrete, a building material used for structural purposes and thermal insulation. These HWCs burn approximately 80% of the hazardous waste combusted each year in the United States, id. at 52,832, emitting more than 11,000 metric tons of HAPs.

For each type of HWC, i.e., each "source category," EPA set standards for the following HAPs: dioxins; mercury; the semi-volatile metals lead and cadmium; the low-volatility metals chromium, arsenic, and beryllium; particulate matter; chlorine; carbon monoxide; and hydrocarbons. All of these HAPs can have serious health effects. Dioxin, mercury, and semi-volatile metal emissions are of particular concern; exposure can cause effects such as cancer, neurological and organ damage, and impaired child development. See id. at 53,002-03.

To set these standards, EPA, acting pursuant to section 7412(d)(3), began by setting emission floors for new and existing sources--EPA calls them "MACT (maximum achievable control technology) floors." After assembling a database of sources and their emission levels recorded primarily during RCRA compliance tests, the Agency went through the following steps for each HAP in each source category. For existing sources, EPA identified the best-performing 12 percent of sources, creating what it calls the "MACT pool." EPA then identified the primary emission control technology used by sources in the MACT pool with emission levels equivalent to or lower than the pool's median. It labeled that technology the "MACT control." For some HAPs, EPA chose end-ofstack pollution control technology as the MACT control; for other HAPs, the Agency chose the technique of "feedrate"-the rate at which source operators feed hazardous waste into combustors. EPA next expanded the MACT pool to include all sources using the MACT control (provided the control was well-designed and properly operated) and set the MACT floor at the worst emission level achieved by any source in that expanded pool. For new sources, EPA used the same methodology but chose as the MACT control the technology used by the best-performing source for which it had information.

After setting forty-nine floors, EPA considered, as required by section 7412(d)(2), whether stricter limits--"beyond-thefloor" standards--would be achievable. Taking into account cost, energy requirements, and certain non-air quality health and environmental impacts, EPA ultimately set five beyondthe-floor standards.

Environmental and industry petitioners now challenge the HWC emission standards. The Sierra Club argues that: (1) the MACT approach results in emission standards that violate section 7412(d)(3) because they fail to reflect the emissions achieved in practice by the best-performing sources; (2) the Agency violated the Act by basing standards on RCRA test data, which are generated under worst-case conditions; and (3) in making beyond-the-floor determinations, the Agency failed to consider certain "non-air quality health and environmental impacts" as required by section 7412(d)(2) and arbitrarily and capriciously refused to consider tougher standards based on additional controls for some HAPs. Industry petitioners contend that EPA violated section 7412(d)(3)(A) by basing existing-source floors on actual emissions data rather than on...