Jump to Navigation
Jump to Content

Cement Kiln Recycling Coalition v. EPA

ELR Citation: 31 ELR 20834
Nos. Nos. 99-1457 et al., 255 F.3d 855/(D.C. Cir., 07/24/2001)

The court remands the U.S. Environmental Protection Agency's (EPA's) hazardous air pollutant emission standards for hazardous waste combustors to the Agency because the standards fail to reflect the emissions achieved in practice by the best performing sources as required by the Clean Air Act (CAA). The court first rejects petitioners' argument that EPA violated CAA §112(d)(3) by basing existing source standards on emissions data rather than Resource Conservation and Recovery Act (RCRA) or other permit limits. The petitioners failed to present this argument to the Agency during the rulemaking.

The court then holds, however, that EPA violated CAA §112(d)(3) by setting emission floors for new and existing sources using maximum achievable control technology (MACT). While standards achievable by all sources using the MACT control might also ultimately reflect what the statutorily relevant sources achieve in practice, EPA may not deviate from §112(d)(3)'s requirement that floors reflect what the best performers actually achieve by claiming that floors must be achievable by all sources using MACT standards. Additionally, the MACT approach does not measure what the best performing sources actually achieve. Because factors other than MACT standards influence emissions, EPA has not demonstrated that floors based on the worst performing MACT sources' emissions represent a reasonable estimate of the performance of the best performing units. The court, therefore, vacates and remands the challenged regulations.

The court then holds that EPA did not violate the CAA by relying on worst-case data generated during trial burn tests and RCRA compliance testing to derive the hazardous waste combustor standards. The statute permits EPA to use available information to identify the best performing sources, and because RCRA data are available information, EPA reasonably relied on RCRA test results. Likewise, EPA did not violate the Regulatory Flexibility Act. The Act does not require EPA to assess the impact on all of the nation's small businesses possibly affected by the rule. Last, the court rejects an association's claim that EPA procedures that permit sources to petition the Agency for alternative requirements if they cannot meet MACT standards due to raw material contributions to emissions are arbitrary and capricious because the association lacks prudential standing.

Counsel for Petitioners
David P. Novello
Freedman, Levy, Kroll & Simonds
1050 Connecticut Ave. NW, Ste. 825, Washington DC 20036
(202) 457-5151

Counsel for Respondents
Steven E. Silverman
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Randolph, Rogers, and Tatel, JJ.