NEWS OF THE WEEK
CLEAN AIR
August 6, 2001

Volume 79, Number 32
CENEAR 79 32 p. 7
ISSN 0009-2347
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COURT DECISION SOWS CONFUSION
Ruling on incinerator emissions sends chemical company plans into chaos

JEFF JOHNSON

Chemical companies with on-site hazardous waste incinerators got a jolt in late July when a federal appeals court ruled that EPA erred in the way it went about setting new incinerator air pollution limits.

7932Incinerator
ABOVE THE FRAY
This Waste Industries Technologies' hazardous waste incinerator is said to meet European emission standards, which are stricter than any proposed by EPA.
ZUMA PRESS/SAM KITTNER
The court, agreeing with a suit filed by the Sierra Club, tossed out emissions requirements, finalized in 1999, that had been under discussion since 1993 and were mandated in 1990 amendments to the Clean Air Act.

Chemical companies had been installing new equipment to meet a compliance date of September 2002, say industry officials, and both Dow Chemical and the American Chemistry Council (ACC) had filed briefs supporting EPA's standard.

In all, 17 parties filed suit over the regulation; all but the Sierra Club were covered industries. Most of the litigants were companies that use hazardous waste as fuel for other processes. They said the standards were too strong. However, companies such as Waste Industries Technologies that burn hazardous waste for profit said it was too weak.

Under the Clean Air Act, EPA must set an emissions standard that is not less than the average emissions level achieved by the best performing 12% of existing hazardous air pollution sources. The Sierra Club argued that EPA had incorrectly set the standard based on the worst emissions levels achieved by sources using the best performing technology--the so-called worst of the best. The court agreed.

However, the court also said that some of the industry challenges potentially had merit but would not be considered in its ruling since EPA's basic method was flawed. Consequently, although the Sierra Club wanted the rule to remain in place while EPA developed new standards, the court said no.

Instead, it decided to vacate the rule, returning to old standards that were in place before EPA set the new ones. But the court pointedly told EPA and other parties that they could file motions to establish an interim standard or argue for another approach during a 45-day period before the rule is formally vacated.

But as of last week, representatives of EPA, ACC, and other industries, as well as James S. Pew, who argued the case for the Sierra Club, had made no decision on the next step.

Despite the possibility that air quality might worsen owing to the court decision, Pew defended the suit. "We had to take a stand," he said. "This is a huge issue. EPA has been setting its air toxics rules wrong from the beginning."

The decision, he said, will have a ripple effect on other toxics emission rules, such as the standard for medical waste incinerators, which is being challenged on similar grounds. Meanwhile, he urged chemical companies to continue installing new equipment.

"There are plenty of good reasons to do everything you can to reduce air pollution even if there isn't a federal requirement," Pew said.

Industry officials, however, aren't so sure. Since it is unclear what the eventual standards will be, they worry that capital investments made now in new pollution control equipment may prove to be the wrong choice once standards are finalized.

EPA estimates that the rule would have prevented emission of more than 11,000 tons of hazardous pollutants each year. In all, about 170 facilities that house 232 combustors were covered by the rule. About 160 of the burners are on-site incinerators operated by manufacturers, the majority of which are chemical companies.

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