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Cement Kiln Recycling Coalition v. EPA

ELR Citation: 37 ELR 20176
Nos. No. 06-1005, (D.C. Cir., 07/13/2007)

The D.C. Circuit denied petitions for review of a U.S. Environmental Protection Agency (EPA) regulation governing the permitting process for facilities that burn hazardous waste as fuel. In 2005, EPA issued maximum achievable control technology (MACT) standards for hazardous waste combustors. EPA also announced that the existing 1991 Resource Conservation and Recovery Act (RCRA) regulations would no longer apply to combustors demonstrating compliance with the new MACT standards. But because there will be instances where EPA cannot assure that emissions from each source will be "protective of human health and the environment" under RCRA, EPA issued a new regulation that authorizes permitting authorities to conduct site-specific risk assessments (SSRAs) on a case-by-case basis. Petitioners argued that the regulation, 40 C.F.R. §270.10(l), violates RCRA because it fails to spell out the information that is required in a permit application. But the regulation adequately guides both regulated parties and permitting authorities as to the types of information that may be required in a permit application. Although the challenged regulation may not provide as much detail as the petitioners wish, RCRA does not require more. Petitioners also argued that the regulation was impermissibly vague as to its trigger for requiring an SSRA—a conclusion by the permitting authority that compliance with the MACT standards alone may not be "protective of human health or the environment." Yet, the regulation does not merely define the triggers in terms of what is "protective of human health or the environment." It provides nine relatively specific factors to guide that determination. Again, RCRA does not require more. EPA also provided adequate notice as to its rationale for the SSRA program and responded to petitioners' comments. The court also denied review of an EPA guidance document, Challenge to Human Health Risk Assessment Protocol, for lack of jurisdiction because the document is not a final regulation or requirement.

[A related decision in this litigation can be found at 31 ELR 20834.]