Med. Waste Inst. v. Envtl. Prot. Agency

• Decision Date: 24 June 2011
• Docket Number: No. 09–1297.,09–1297.
• Citation: 645 F.3d 420
• Parties: MEDICAL WASTE INSTITUTE AND ENERGY RECOVERY COUNCIL, Petitionersv.ENVIRONMENTAL PROTECTION AGENCY, RespondentCoalition for Responsible Waste Incineration, et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

645 F.3d 420

MEDICAL WASTE INSTITUTE AND ENERGY RECOVERY COUNCIL, Petitioners

v.ENVIRONMENTAL PROTECTION AGENCY, RespondentCoalition for Responsible Waste Incineration, et al., Intervenors.

No. 09–1297.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 16, 2010.Decided June 24, 2011.

On Petition for Review of a Final Action of the Environmental Protection Agency.Michael B. Wigmore argued the cause for petitioners. With him on the briefs was Sandra P. Franco.

Ronald A. Shipley, William L. Wehrum, James W. Rubin, and Richard G. Stoll were on the briefs for intervenor Coalition for Responsible Waste Incineration and amici curiae Manufacturers' HMIWI Coalition and Cement Kiln Recycling Coalition in support of petitioners.Perry M. Rosen, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief was Michael W. Thrift, Counsel, U.S. Environmental Protection Agency. Daniel R. Dertke, Attorney, U.S. Department of Justice, entered an appearance.James S. Pew argued the cause for intervenors Natural Resources Defense Council and Sierra Club in support of respondent. With him on the brief were Colin C. O'Brien and John D. Walke.Before: SENTELLE, Chief Judge, and GINSBURG and KAVANAUGH, Circuit Judges.Opinion for the Court filed by Chief Judge SENTELLE.SENTELLE, Chief Judge:

Petitioners Medical Waste Institute and Energy Recovery Council, trade associations representing the medical waste and waste-to-energy industries, respectively, petition for review of a regulation promulgated by the Environmental Protection Agency (“EPA”) setting performance standards for new and existing hospital/medical/infectious waste incinerators (“HMIWI”). Petitioners argue that the data set EPA used to establish these standards was flawed, that the agency's pollutant-by-pollutant approach to setting target emissions levels was impermissible, and that the agency acted arbitrarily when it removed a provision exempting HMIWI from complying with the standards during periods of startup, shutdown, and malfunction. The EPA counters that this court lacks jurisdiction to review the two latter claims, and that the use of the data set was justifiable. We agree with the EPA and deny the petition for review.

I.

The challenged regulation, titled “Standards of Performance for New Stationary Sources and Emissions Guidelines for Existing Sources: Hospital/Medical/Infectious Waste Incinerators,” was issued pursuant to Section 129 of the Clean Air Act (“CAA”), 42 U.S.C. § 7429. The statute directs the EPA to set required levels of emissions reduction for nine listed air pollutants, as well as for opacity where appropriate. § 7429(a)(4). The statute sets forth the factors EPA is to consider in establishing the standards.

Standards applicable to solid waste incineration units ... shall reflect the maximum degree of reduction in emissions of air pollutants listed under section (a)(4) 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 units in each category. The Administrator may distinguish among classes, types ... and sizes of units within a category in establishing such standards. The degree of reduction in emissions that is deemed achievable for new units in a category shall not be less stringent than the emissions control that is achieved in practice by the best controlled similar unit, as determined by the Administrator. Emissions standards for existing units in a category may be less stringent than standards for new units in the same category but shall not be less stringent than the average emissions limitation achieved by the best performing 12 percent of units in the category....

§ 7429(a)(2). The level of emissions control identified by the Administrator pursuant to this provision is commonly known as a “maximum achievable control technology,” or “MACT,” standard. 74 Fed.Reg. 51,368, 51,370 (Oct. 6, 2009). The minimum levels of stringency that the EPA may require are referred to as the MACT “floors.” Id.; see Sierra Club v. EPA (“Sierra Club–HMIWI”), 167 F.3d 658, 660 (D.C.Cir.1999). Once the EPA establishes these floors, it is permitted to set more stringent MACT standards—that is, go “beyond the floor”—if, taking into account the factors identified in the statute, it determines that more stringent emissions limitations are achievable. 74 Fed.Reg. at 51,370. The statute also directs EPA to review and, if appropriate, revise the standards issued pursuant to this section every five years. § 7429(a)(5).

EPA first promulgated MACT standards pursuant to the CAA in September of 1997. 62 Fed.Reg. 48,348 (Sept. 15, 1997). EPA divided the HMIWI population into three subcategories (small-, medium-, and large-capacity units) and set standards for the nine listed pollutants in each category, which resulted in 27 separate floor determinations. See 167 F.3d at 660. Because it did not have enough data to calculate MACT floors for existing units based on emissions limitations actually achieved by best performing units, it used surrogate data—specifically, emissions limitations set by state regulations and permit requirements—to make its calculations. See 167 F.3d at 660–61; 62 Fed.Reg. at 48,352; 72 Fed.Reg. 5510, 5513 (Feb. 6, 2007). But for 17 of the 27 floor determinations, the share of the HMIWI population covered by the applicable regulations was less than 12 percent. 167 F.3d at 661. In order to meet the statutory requirement that the MACT floor in each category be set at the level of the average emissions limitation achieved by the top-performing 12 percent of units, the EPA supplemented its data set yet again, this time using “uncontrolled” data—that is, data from incinerators with no pollution controls in place. Id.

The Sierra Club petitioned for review of the 1997 MACT standards. This court concluded that “EPA's method looks hopelessly irrational.” Sierra Club–HMIWI, 167 F.3d at 664. We did not vacate the standards altogether, however, because “[i]t is possible that EPA may be able to explain [the standards], and the Sierra Club has expressly requested that we leave the current regulations in place during any remand, rather than eliminate any federal control at all.” Id. We remanded the case to the EPA for further explanation.

The 1997 regulations that remained in place after the Sierra Club–HMIWI decision were fully implemented by September 2002. 72 Fed.Reg. at 5510. In the wake of the implementation of these standards, approximately 94% of HMIWI shut down and an additional 3% obtained exemptions from the regulations. Id. at 5518.

In February 2007, EPA finally issued a proposed rule in response to the 1999 remand. 72 Fed.Reg. at 5510. In this proposal, EPA offered a detailed rationale for its approach to determining the MACT floors. It identified and corrected errors in its previous methodology, which resulted in revised MACT floor determinations. The new floor determinations were based on much of the same data upon which EPA had relied in 1997, but the adjusted methodology “result[ed] in proposed emission limits that in many cases are more stringent than the limits promulgated in 1997.” In addition to undertaking revisions in response to this court's remand, the EPA made further revisions in fulfillment of its obligation under the CAA to conduct a review of emissions standards every five years and revise the standards as necessary to keep them aligned with the statutory requirements. 72 Fed.Reg. at 5518; see §§ 7411(a)(1), 7429(a)(5). Specifically, in performing its five-year review it revised some of the emissions limitations “to reflect the actual performance of the MACT technologies” under the 1997 standards. 72 Fed.Reg. at 5533.

On December 1, 2008, the EPA issued a new proposed rule, declaring that “following recent court decisions and receipt of public comments regarding [the February 2007] proposal, we chose to re-assess our response to the Court's remand.” 73 Fed.Reg. 72,962, 72,962 (Dec. 1, 2008). The EPA explained it no longer was confident that state regulatory limits were reasonable substitutes for actual emissions data. Because of this uncertainty combined with the unavailability of emissions data from the many units that had shut down in the wake of the 1997 requirements, EPA concluded that “the best course of action is to re-propose a response to the remand based on data from the 57 currently operating HMIWI.” Id. at 72,970. Although the EPA stated that this new proposed rule discharged its duty to perform a five-year review, it maintained that its recalculation of MACT floors was done pursuant to its duty to set emissions limitations in the first instance, not solely in fulfillment of its review duty under § 7429(a)(5).

The EPA issued its final rule on October 6, 2009. 74 Fed.Reg. at 51,368. The final rule used the same basic methodological approach as the 2008 proposal, with a few statistical adjustments that resulted in generally more stringent limits than had been previously proposed. In the final rule, the EPA for the first time removed the “startup, shutdown, and malfunction exemption” (“SSM exemption”), which had provided that no waste was counted against a unit during an SSM period.

This challenge followed the publication of the final rule. The Clean Air Act empowers us to reverse the Administrator's action in rulemaking if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” § 7607(d)(9)(A); see Bluewater Network v. EPA, 370 F.3d 1, 11 (D.C.Cir.2004) (noting that review under the CAA's “arbitrary and capricious” standard is the same as review under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A)).

II.

A.

The petitioners contend that the EPA exceeded its authority under the Clean Air Act when it revised the HMIWI MACT floors based on data...