Cement Kiln Recycling Coalition v. E.P.A.

• Decision Date: 13 July 2007
• Docket Number: No. 06-1005.,06-1005.
• Citation: 493 F.3d 207
• Parties: CEMENT KILN RECYCLING COALITION, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY and Stephen L. Johnson, Administrator of the United States Environmental Protection Agency, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

493 F.3d 207

CEMENT KILN RECYCLING COALITION, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY and Stephen L. Johnson, Administrator of the United States Environmental Protection Agency, Respondents.

No. 06-1005.

United States Court of Appeals, District of Columbia Circuit.

Argued April 16, 2007.

Decided July 13, 2007.

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

Richard G. Stoll, Jr. argued the cause for petitioner. With him on the briefs was Katherine E. Lazarski.

David J. Kaplan, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief were John C. Cruden, Deputy Assistant Attorney General, and Laurel Celeste, Counsel, U.S. Environmental Protection Agency. Cynthia J. Morris, Attorney, U.S. Department of Justice, entered an appearance.

Before: HENDERSON, RANDOLPH, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

The Cement Kiln Recycling Coalition petitions for review of an Environmental Protection Agency regulation that governs the permitting process for facilities that burn hazardous waste as fuel. The Coalition also petitions for review of a guidance document, the Human Health Risk Assessment Protocol, that pertains to the same permitting process. For the reasons stated below, we deny the petition for review insofar as it challenges the regulation, and we dismiss the challenge to the guidance document as outside our jurisdiction.

I

Hazardous waste combustors (HWCs) are facilities — such as incinerators, boilers, and industrial furnaces (including cement kilns) — that burn hazardous waste as fuel for their operations. The Cement Kiln Recycling Coalition, the petitioner in this case, is a trade association that includes manufacturers of Portland cement that utilize hazardous waste as an alternative fuel in some of their kilns. The Environmental Protection Agency (EPA) has authority to regulate this activity under both the Resource Conservation and Recovery Act (RCRA), see 42 U.S.C. § 6924, and the Clean Air Act (CAA), see id. § 7412.

Subtitle C of RCRA, see 42 U.S.C. § 6921 et seq., "establishes a `cradle to grave' federal regulatory system for the treatment, storage, and disposal of hazardous wastes." American Portland Cement Alliance v. EPA, 101 F.3d 772, 774 (D.C.Cir.1996) (quoting Chemical Waste Mgmt., Inc. v. Hunt, 504 U.S. 334, 337 n. 1, 112 S.Ct. 2009, 119 L.Ed.2d 121 (1992)). This system operates through a combination of national standards established by EPA regulations, and a permit program in which permitting authorities — either EPA or states that have hazardous waste programs authorized by the agency — apply those national standards to particular facilities. See 42 U.S.C. §§ 6924-26.

The national standards applicable to the petitioner are authorized by RCRA § 3004, 42 U.S.C. § 6924, which governs "owners and operators of facilities for the treatment, storage, or disposal of hazardous waste," known as TSDs. 42 U.S.C. § 6924(a). For RCRA purposes, the burning of hazardous waste is considered "treatment," and thus falls within the statute. Id. § 6903(34); see Horsehead Res. Dev. Co. v. Browner, 16 F.3d 1246, 1252 & n. 2 (D.C.Cir.1994). Section 3004(a), which applies generally to all TSDs, directs EPA to "promulgate regulations establishing such performance standards, applicable to [TSDs], as may be necessary to protect human health and the environment." 42 U.S.C. § 6924(a). Section 3004(q) specifically applies to facilities that burn hazardous waste as fuel, including cement kilns and other types of HWCs. Id. § 6924(q)(1)(B). Like section 3004(a), this section directs EPA to promulgate such standards "as may be necessary to protect human health and the environment." Id. § 6924(q)(1).

In addition to the national standards authorized by section 3004, section 3005 of RCRA, 42 U.S.C. § 6925, establishes a case-by-case permitting process. Section 3005(a) directs EPA to "promulgate regulations requiring each person owning or operating an existing [TSD] or planning to construct a new [TSD] to have a permit issued pursuant to this section." Id. § 6925(a). Section 3005(b) mandates that "[e]ach application for a permit under this section shall contain such information as may be required under regulations promulgated by [EPA]." Id. § 6925(b). And section 3005(c)(3) — which EPA refers to as the "omnibus" provision — provides that "[e]ach permit issued under this section shall contain such terms and conditions as the [permitting authority] determines necessary to protect human health and the environment." Id. § 6925(c)(3).

Although RCRA gives EPA comprehensive authority to regulate hazardous waste combustors, the fact that HWCs emit air pollutants also gives the agency jurisdiction under the Clean Air Act, 42 U.S.C. § 7401 et seq. Section 112 of the CAA, as amended in 1990, directs EPA to issue national emission standards for hazardous air pollutants. See id. § 7412. The statute requires EPA to "promulgate technology-based emission standards for categories of sources that emit [such pollutants]. These emission standards are to be based not on an assessment of the risks posed by [hazardous air pollutants], but instead on the maximum achievable control technology (MACT) for sources in each category." Sierra Club v. EPA, 353 F.3d 976, 980 (D.C.Cir.2004) (citations omitted); see 42 U.S.C. § 7412(d).¹ Thus, EPA's jurisdiction under RCRA § 3004 and § 3005 overlaps with its jurisdiction under CAA § 112 when the source of hazardous air pollutants is also a TSD.

Anticipating that EPA's jurisdiction under RCRA would overlap with its jurisdiction under other statutes, Congress enacted RCRA § 1006(b), 42 U.S.C. § 6905(b). This provision requires EPA to "integrate all provisions of [RCRA] for purposes of administration and enforcement and shall avoid duplication, to the maximum extent practicable, with the appropriate provisions of[, inter alia,] the Clean Air Act." Id. § 6905(b)(1).

In 1991, EPA promulgated RCRA regulations applicable to boilers and industrial furnaces (including cement kilns) that treat hazardous waste by burning it as fuel. See Burning of Hazardous Waste in Boilers and Industrial Furnaces, 56 Fed. Reg. 7,134 (Feb. 21, 1991). The 1991 RCRA rule was "principally designed to establish air emissions requirements" pursuant to RCRA § 3004(q). Horsehead, 16 F.3d at 1251.

Beginning in 1994, EPA began requiring every HWC that applied for a RCRA permit to undergo a site-specific risk assessment (SSRA). See Strategy for Hazardous Waste Minimization and Combustion (1994), available at http://www.epa. gov/epaoswer/hazwaste/combust/general/ strat-2.txt. EPA intended the SSRA program to give permitting authorities the ability to impose permit conditions beyond national standards in order "to limit emissions on a case-by-case basis as necessary to ensure protection of human health and the environment." Id. A human-health SSRA could include a "direct exposure" assessment designed to predict the health impact of breathing air in the vicinity of a facility; it could also include an "indirect" exposure assessment designed to focus on multi-pathway non-inhalation exposures such as the consumption of crops grown in soil upon which substances emitted into the air are deposited. EPA did not enshrine the SSRA program in specific regulations, maintaining that authority was provided by RCRA's "omnibus" provision, RCRA § 3005(c)(3). EPA did, however, issue guidance documents to assist permitting authorities in conducting SSRAs.

In 1999, pursuant to the Clean Air Act, EPA promulgated technology-based MACT standards to control hazardous pollutants emitted by facilities that burn hazardous waste, including incinerators and cement kilns. See Final Standards for Hazardous Air Pollutants for Hazardous Waste Combustors, 64 Fed.Reg. 52,828 (Sept. 30, 1999). This court vacated those standards in 2001, holding that EPA had not adequately demonstrated that they satisfied the requirements of CAA § 112(d). See Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855, 857 (D.C.Cir. 2001).

In 2005, following notice and comment, EPA promulgated revised MACT standards for HWCs. See National Emission Standards for Hazardous Air Pollutants: Final Standards for Hazardous Air Pollutants for Hazardous Waste Combustors, 70 Fed.Reg. 59,402 (Oct. 12, 2005) ("Final Rule"). At the same time, EPA announced that the 1991 RCRA standards would "no longer apply once a facility demonstrates compliance with" the relevant 2005 MACT standards. Id. at 59,523. EPA issued this "deferral" announcement pursuant to RCRA's integration provision, 42 U.S.C. § 6905(b), and the agency's finding that the new Clean Air Act MACT standards were generally "protective of human health and the environment," as required by RCRA. See Final Rule, 70 Fed.Reg. at 59,517, 59,536. Concluding, however, that "there may be instances where [the agency] cannot assure that emissions from each source will be protective of human health and the environment," id. at 59,504, EPA issued regulations that authorize permitting authorities to conduct SSRAs on a case-by-case basis, see 40 C.F.R. §§ 270.10(l), 270.32(b)(3).²

Those regulations, and particularly 40 C.F.R. § 270.10(l), which is set out in full in the appendix to this opinion, are the focus of the petition that is now before us. Section 270.10(l) expressly authorizes a permitting authority to conduct an SSRA — that is, to "require the additional information or assessment(s) necessary to determine whether additional controls are necessary to ensure protection of human health and the environment." Id. § 270.10(l). "This includes information necessary to evaluate the potential risk to human health and/or the environment resulting from both direct and indirect exposure pathways." Id. A permitting authority may require an SSRA only if it "concludes, based on one or more of the factors listed in paragraph (l)(1) o...