Chemical Mfr. Assoc. v. Envt'l Protection Agency
| Decision Date | 25 July 2000 |
| Docket Number | 99-1514,No. 99-1236,99-1236 |
| Citation | 217 F.3d 861 |
| Parties | (D.C. Cir. 2000) Chemical Manufacturers Association and Cement Kiln Recycling Coalition,Petitioners v. Environmental Protection Agency,Respondent Environmental Technology Council, Inc.,Intervenor |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Petitions for Review of an Order of the Environmental Protection Agency
Richard G. Stoll argued the cause for petitioners. With him on the briefs were David F. Zoll, Ronald A. Shipley,
Michael W. Steinberg, Joshua D. Sarnoff and David P. Novello.
Christopher S. Vaden, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief were Peter D. Coppelman, Acting Assistant Attorney General, and Steven E. Silverman, Attorney, Environmental Protection Agency.
David R. Case was on the brief for intervenor Environmental Technology Council, Inc.
Before: Williams, Sentelle and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Petitioners challenge an Environmental Protection Agency rule establishing an unusual bifurcated schedule for hazardous waste combustors to comply with strict new emission standards. To meet the new standards, combustors must either modify existing facilities and processes to bring emission levels below the new limits or cease burning hazardous waste altogether. Combustors electing to make the necessary changes have three years to comply, but under EPA's "early cessation" program, combustors that find it not cost-effective to make the required modifications must cease burning hazardous waste within two years. Although we reject petitioners' argument that EPA lacks statutory authority to implement an early cessation program, we vacate the rule because, as the Agency concedes, it failed to establish that this particular early cessation program, which imposes substantial costs on hazardous waste combustors, will have any environmental or health benefits.
Three types of businesses burn hazardous waste. Professional hazardous waste treatment and disposal companies operate large commercial incinerators, charging fees to dispose of hazardous wastes generated by their customers. Some hazardous waste producers, such as chemical manufacturers, operate their own on-site incinerators to dispose of waste generated in the manufacturing process. Cement manufacturers operate kilns in which they occasionally supplement the fossil fuels they burn with hazardous waste to generate additional heat energy, to recover usable materials from treated waste, and to earn additional revenue from disposal fees. Petitioners Chemical Manufacturers Association and Cement Kiln Recycling Coalition represent the latter two types of hazardous waste combustors. Environmental Technology Council, intervenor in support of EPA's rule, represents commercial waste incinerators.
All three types of hazardous waste combustors are regulated by Subtitle C of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901 et seq., which "establishes a comprehensive 'cradle-to-grave' regulatory program for the treatment, storage, and disposal of hazardous waste." Horsehead Resource Dev. Co. v. Browner, 16 F.3d 1246, 1252 (D.C. Cir. 1994). Existing EPA standards, promulgated pursuant to RCRA and upheld for the most part in Horsehead, require hazardous waste combustors to operate under conditions sufficient "to protect human health and the environment." 42 U.S.C. § 6924(a).
The Clean Air Act ("CAA"), 42 U.S.C. §§ 7401 et seq., foregoing RCRA's risk-based approach in favor of technologybased regulation, directs EPA to establish emission standards for hazardous air pollutants based on the "maximum achievable control technology" known as MACT. 42 U.S.C. § 7412(g)(2). The EPA Administrator must list categories and subcategories of hazardous air pollutant emissions sources, then set MACT standards for each category at a level
requir[ing] the maximum degree of reduction in emissions of the hazardous air pollutants subject to this section (including a prohibition on such emissions, where achievable) that the Administrator, taking into consider-ation the cost of achieving such emission reduction, and any non-air quality health and environmental impact sand energy requirements, determines is achievable for new or existing sources in the category or subcategory to which such emission standard applies.
42 U.S.C. § 7412(d)(2). Once EPA sets the emission standards, the Act, in language central to this case, requires the Agency to establish a "compliance date or dates for each category or subcategory of existing sources, which shall provide for compliance as expeditiously as practicable, but in no event later than 3 years after the effective date of such standard." 42 U.S.C. § 7412(i)(3)(A). Sources demonstrating a need for additional time to complete installation of pollution control equipment qualify for a one-year extension.42 U.S.C. § 7412(i)(3)(B).
Acting pursuant to RCRA and the Clean Air Act, EPA promulgated revised emission standards for hazardous waste combustors. See Revised Standards for Hazardous Waste Combustors, 61 Fed. Reg. 17,358 (1996). In the original notice of proposed rule making, EPA predicted that most affected combustors would have to make substantial modifications to their equipment in order to reduce emissions to levels mandated by the new standards. In order to allow sufficient time for combustors to implement necessary modifications, EPA proposed its usual three-year compliance period. Id. at 17,416.
The Agency recognized that because certain combustors, namely kilns and on-site incinerators, burn hazardous waste as an adjunct to their primary business, they might find it more feasible to stop burning hazardous waste altogether rather than invest in new pollution controls. Cement kilns could switch to non-hazardous fuels, and operators of on-site incinerators might find it more cost-effective to contract with commercial hazardous waste incinerators. To "ensure that only those facilities that plan to comply with the new regulations are allowed to burn hazardous waste during the [threeyear] compliance period," id., EPA proposed an early cessation program under which kilns and on-site incinerators that decide against making the improvements necessary to continue burning hazardous waste under the new standards would be required to "immediately stop burning hazardous waste when the owner or operator first determines that [compliance will not be achieved] by the applicable date." Id.
After considering public comment, EPA adopted a final rule requiring owners and operators of hazardous waste combustion facilities to submit a Notification of Intent to Comply, known as a "NIC," within a year of the new standards' effective date. See Hazardous Waste Combustors; Revised Standards; Final Rule, 63 Fed. Reg. 33,782, 33,80609 (1998). Each combustor must indicate in the NIC whether it plans to comply, i.e., whether it plans to continue burning hazardous wastes under the new standards, and if so, what emission-control measures it will take to ensure timely compliance. Combustors indicating an intent to comply must file a two-year Progress Report describing in detail all compliance modifications planned and undertaken; they must comply with the new standards within three years. Id. at 33,806.Kilns and on-site incinerators that indicate an "intent not to comply"--the focus of this case--must cease burning hazardous waste within two years of the effective date. The Agency explained the process as follows:
The source can use the NIC to notify either the source's intent to come into compliance with the new standards, or the source's intent not to come into compliance with the new standards. The NIC must be submitted to the permitting agency within a year of the final standards being promulgated, and the Progress Report within two years
.....
The NIC will not serve as a basis for requiring facilities to cease burning hazardous waste if they intend to comply with the emission standards of this Subpart....EPA would like to clarify that its intent has never been to shut a source down completely. The source might be required to cease burning hazardous waste; however, it would not be precluded from burning non-hazardous waste or other alternative fuels. However, those source who indicate in the NIC their intent not to comply with the applicable emission control requirements of this Sub-part will be required to stop burning hazardous waste within two years of the effective date of the emission control requirements.
Until this rule making, EPA had always set a single compliance date for each category of emission source; never before had it required emission sources to choose between complying or ceasing the regulated activity. Several commenters objected to the early cessation program, arguing that EPA lacks statutory authority to impose such an unprecedented requirement. The Agency responded:
EPA believes that compliance as expeditiously as practicable will have numerous benefits for human health and the environment. In particular, for those sources that do not intend to ultimately come into compliance with the emission standards of this Subpart, expeditious compliance would be achieved by ceasing to burn hazardous waste. The Agency anticipates that numerous sources will choose not to come into compliance with the requirements of this rule, and will cease burning hazardous waste prior to issuance of the rule or at some later date, but prior to the compliance date. This section is intend-ed to expeditiously limit the burning of hazardous waste by those sources who do not intend to come into compliance with the requirements of the emission standards of this Subpart, but continue to burn hazardous waste after the effective date of...
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