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Davis County Solid Waste Management & Energy Recovery Special Serv. Dist. v. EPA

ELR Citation: 27 ELR 20729
Nos. 95-1611, 108 F.3d 1454/(D.C. Cir., 03/21/1997) on rehearing

The court amends its opinion that vacated the U.S. Environmental Protection Agency's (EPA's) 1995 municipal waste combustor (MWC) standards, and instead vacates the standards only as they apply to small MWC units and cement kilns. The court holds that the recategorization of MWC units required by its previous opinion will not meaningfully alter the new source performance standards (NSPS) and emission guidelines applicable to large MWC units, whereas vacating the large unit standards will have a significant deleterious effect. Under the court's prior opinion, EPA must recalculate the maximum achievable control technology (MACT) floor for certain pollutants. This recalculation will have only a nominal effect on the emission guidelines for several pollutants at levels that were more stringent than the MACT floor. If the standards for large units are vacated, however, it could have significant deleterious effects on MWC emissions controls because these units will be considered existing units and thus subject to less strict emission guidelines. Further, vacating the emission guidelines for existing large units would significantly delay the date on which compliance with the limits is required. Thus, it seems likely that vacating the 1995 NSPS and emission guidelines for large units will result in significantly greater pollution emissions than would occur if these emission standards were not vacated. In addition, leaving the NSPS and emission guidelines for large units other than cement kilns in place will have no prejudicial effect on MWC operators because these standards will change minimally as a result of the court's prior opinion. The court then holds that the standards for existing large MWC units are severable from the standards for small units and cement kilns. It is clear that EPA would have adopted the large unit standards even without the standards for small MWC units and cement kilns. The 1995 standards for large and small MWC units are not in any way "intertwined" and they operate entirely independently of one another. The court therefore leaves the NSPS and emission guidelines for large units other than cement kilns in place pending further action by EPA in response to its previous opinion on remand.

[The court's prior opinion is published at 27 ELR 20476.]

Counsel for Petitioners
Mary Anne Q. Wood
Wood, Quinn & Crapo
60 E. South Temple, Ste. 500, Salt Lake City UT 84111
(801) 366-6060

Counsel for Respondent
John A. Sheehan
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: WALD, GEINSBURG, and RANDOLPH, Circuit Judges.