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Chemical Mfrs. Ass'n v. EPA

ELR Citation: 30 ELR 20782
Nos. No. 99-1236, 217 F.3d 861/50 ERC 1993/(D.C. Cir., 07/25/2000)

The court holds that a U.S. Environmental Protection Agency (EPA) rule establishing a bifurcated schedule for hazardous waste combustors to comply with strict new emission standards is arbitrary and capricious. The rule, promulgated under the Clean Air Act (CAA) and the Resource Conservation and Recovery Act (RCRA), required the combustors to either modify existing facilities and processes to bring emission levels below the new limits within three years, or notify EPA within one year that it would cease burning hazardous waste altogether. The court first holds that EPA's rulemaking was arbitrary and capricious. EPA failed to show how the early cessation program would benefit human health and the environment, which the rule claimed to provide. EPA has the authority under the CAA to set multiple compliance dates. However, EPA neither pointed out what the benefits to human health and the environment would be nor explained how any such benefits might result from the early cessation program. In issuing the rule, moreover, EPA expressly recognized that the early cessation program would result in hazardous waste being shifted away from kilns and on-site incinerators that comply with existing RCRA standards but elect to cease burning hazardous waste rather than meet the new standards. Duringthe year between the early cessation and compliance dates, hazardous waste will simply be redirected to other facilities to be burned under essentially the same conditions. The early cessation rule will not significantly reduce the amount of hazardous waste produced, the amount of hazardous waste burned, or the levels of hazardous air pollutant emissions. It will instead merely reallocate which combustion facilities process the same hazardous waste under the same conditions. The court next holds that the notification of intent to comply and the progress report requirements are also invalid because it is impossible for the court to determine that EPA would have promulgated them absent the early cessation rule.

Counsel for Petitioners
Richard G. Stoll
Chemical Manufacturers Association
2501 M St. NW, Washington DC 20037
(202) 887-1100

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

Before Williams, J., with Sentelle, J., dissenting