358 F.3d 936 (D.C. Cir. 2004), 01-1053, Northeast Maryland Waste Disposal Authority v. E.P.A.

Docket Nº:01-1053 to 01-1055, 02-1280, 02-299, 03-1093.
Citation:358 F.3d 936
Party Name:NORTHEAST MARYLAND WASTE DISPOSAL AUTHORITY, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
Case Date:February 24, 2004
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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358 F.3d 936 (D.C. Cir. 2004)

NORTHEAST MARYLAND WASTE DISPOSAL AUTHORITY, Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

Nos. 01-1053 to 01-1055, 02-1280, 02-299, 03-1093.

United States Court of Appeals, District of Columbia Circuit

February 24, 2004

Argued Nov. 13, 2003.

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[Copyrighted Material Omitted]

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

Timothy R. Henderson argued the cause for petitioners Northeast Maryland Waste Disposal Authority, et al. With him on the briefs was Warren K. Rich.

James S. Pew argued the cause and filed the briefs for petitioners Sierra Club and New York Public Interest Research Group.

H. Michael Semler and Stephen E. Crowley, Attorneys, U.S. Department of Justice, argued the cause and filed the brief for respondents.

Before: SENTELLE, HENDERSON and GARLAND, Circuit Judges.

OPINION

PER CURIAM:

This action challenges the Emission Guidelines for Existing Small Municipal Waste Combustion Units, 65 Fed. Reg. 76,378 (Dec. 6, 2000), and the New Source Performance Standards for New Small Municipal Waste Combustion Units, 65 Fed. Reg. 76,350 (Dec. 6, 2000), promulgated

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by the United States Environmental Protection Agency (EPA, Agency) pursuant to § 129 of the Clean Air Act (CAA), 42 U.S.C. § 7429.1 The petitioners include three members of the municipal waste combustor industry (Industry Petitioners): Northeast Maryland Waste Disposal Authority (Northeast Maryland), which operates four municipal waste combustor (MWC) units in Harford County, Maryland;2 Dutchess County Resource Recovery Agency, which operates two MWC units at a facility in Poughkeepsie, New York and Islip Resource Recovery Agency, which operates two MWC units at a facility in Islip, New York. The petitioners also include two environmental organizations: the New York Public Interest Research Group (N.Y.PIRG) and the Sierra Club (collectively identified as Sierra Club). For the reasons set out below, we grant the petitions in part and deny the petitions in part.

I.

The challenged rulemaking is now in its third decade. In 1987 EPA issued an advance notice of a rulemaking to regulate pollutants produced by MWC emissions pursuant to § 111 of the CAA, 42 U.S.C. § 7411, which requires EPA to develop emission standards generally for each category of pollutant 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). See Assessment of Municipal Waste Combustor Emissions Under the Clean Air Act, 52 Fed. Reg. 25,399, 25,399 (July 7, 1987). In 1989 EPA issued proposed emission regulations imposing limits on the MWC emission levels for specific pollutants, based on the level of emissions achievable with the best pollution control technology, but did not prescribe specific control technologies to be used to achieve the limits. See Standards of Performance for New Stationary Sources; Municipal Waste Combustors, 54 Fed. Reg. 52,251 (Dec. 20, 1989).

In 1990 the Congress enacted CAA § 129, 42 U.S.C. § 7429, which expressly requires EPA to establish specific standards for each "solid waste incineration unit."3 The standards must "reflect the maximum degree of reduction in emissions of air pollutants listed under section (a)(4) that [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. § 7429(a)(2).4 These standards are known

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as "maximum achievable control technology" or "MACT" standards. The statute limits EPA's discretion to determine the stringency of MACT standards. MACT standards must be at least as stringent as the MACT floor set for each pollutant. The MACT floor for new units is defined as "the emissions control ... achieved in practice by the best controlled similar unit." Id. The MACT floor for existing units is defined as "the average emissions limitation achieved by the best performing 12 percent of units in the category." Id. The statute mandates two "categories" within both existing and new units (defined in terms of combustion capacity), with different deadlines for promulgating standards, id. § 7429(a)(1)(B)-(C), and further provides that EPA "may distinguish among classes, types, ... and sizes of units within a category in establishing [MACT] standards," id. § 7429(a)(2).

In 1994 EPA proposed new standards governing MWC units pursuant to § 129. See Standards of Performance for New Stationary Sources: Municipal Waste Combustors, 59 Fed. Reg. 48,198 (Sept. 20, 1994). The Agency proposed distinct sets of standards for new and for existing sources, as the statute contemplates, and broke down both source types into two categories based on the aggregate plant capacity for municipal solid waste (MSW), that is, based on the sum of the maximum amount of waste each MWC unit located at a particular site is designed to combust daily. Thus, within both existing and new source types, EPA created a large unit category -- consisting of units located at plants with an aggregate MSW capacity greater than 250 tons per day (tpd) -- and a small unit category -- consisting of units located at plants with an aggregate MSW capacity of 250 tpd or less (but greater than 35 tpd).

In 1995 EPA issued its final standards, which generally tracked the proposed ones. See Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Municipal Waste Combustors, 60 Fed. Reg. 65,387 (Dec. 19, 1995) (1995 Rule). Two MWC facility operators petitioned this court to review the 1995 Rule, asserting that EPA violated § 129's unambiguous language when it defined large and small units based on the aggregate MSW combustion capacity of the plant at which a MWC unit is located rather than on the combustion capacity of the individual MWC unit itself. We agreed with the petitioners and vacated the standards, holding that "the EPA's use of aggregate plant MSW capacity rather than unit MSW capacity in the 1995 standards to create categories of MWC units for MACT purposes violates the plain meaning of section 129 and exceeds the EPA's statutory authority." Davis County Solid Waste Mgmt. v. EPA, 101 F.3d 1395, 1411 (D.C.Cir. 1996). Subsequently, on EPA's motion for rehearing, the court modified the remedy to vacate only the small unit standards because it concluded "the Davis opinion will not meaningfully alter the [new source performance standards] or the emission guidelines applicable to [existing] large units and that vacating the large unit standards will have a significant deleterious

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effect." Davis County Solid Waste Mgmt. v. EPA, 108 F.3d 1454, 1460 (D.C.Cir. 1997) (rehearing).

In August 1999 EPA proposed new standards for the category of small MWC units, which it defined as units "with a combustion design capacity of 35 to 250 tons per day." Emission Guidelines for Existing Stationary Sources: Small Municipal Waste Combustion Units, 64 Fed. Reg. 47,234, 47,236 (Aug. 30, 1999).5 Existing small units were further divided into three subcategories according to type and aggregate plant capacity: Class A, consisting of "nonrefractory-type small MWC units located at plants with an aggregate plant capacity greater than 250 tons per day of MSW"; Class B, consisting of "refractory-type small MWC units located at plants with an aggregate plant capacity greater than 250 tons per day of MSW";6 and Class C, consisting of all "small MWC units located at plants with an aggregate plant capacity less than or equal to 250 tons per day of MSW." Id. New small units were divided into only two subcategories, strictly by aggregate plant capacity: Class I, consisting of small units located at plants with aggregate plant capacities greater than 250 tons of MSW per day, and Class II, consisting of small units located at plants with aggregate plant capacities less than or equal to 250 tons of MSW per day. New Source Performance Standards for New Small Municipal Waste Combustion Units, 64 Fed. Reg. 47,276, 47,279 (Aug. 30, 1999).

Following comment and hearing, in December 2000 EPA issued its final standards, which established subcategories by aggregate plant capacity alone both for existing units, 65 Fed. Reg. 76,378, and for new units, 65 Fed. Reg. 76,350, (collectively, the 2000 Rule). For both existing and new units, Class I consists of small MWC units located at plants with aggregate plant capacities greater than 250 tons of MSW per day, while Class II comprises small MWC units located at plants with aggregate plant capacities equal to or less than 250 tons of MSW per day. 65 Fed. Reg. at 76,379 (existing small units); 65 Fed. Reg. at 76,351 (new small units). Within each subcategory EPA calculated a MACT floor for each pollutant and set a standard at or beyond the floor.

On February 2, 2001 Waste Energy Partners, together with other parties to the administrative proceeding, petitioned EPA for reconsideration, and all Industry Petitioners filed petitions for review of the final standards with the court. On February 5, 2001 NYPIRG filed a petition for administrative reconsideration, and on February 6, 2001 Sierra Club filed a petition for judicial review of the standards. EPA denied WEP's petition for reconsideration on August 7, 2002, J.A. 2317, and denied NYPIRG's petition on August 14, 2002, J.A. 2319.

II.

Under § 307(d)(9) of the CAA, the court reviews EPA action as follows:

In the case of review of any action of the Administrator to which this subsection

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applies, the court may reverse any such action found to be --

(A) arbitrary, capricious...

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