AIR POLLUTION:

Court admits blame for med-waste incinerator confusion

Judges on a federal appeals court in Washington, D.C., admitted today that the main reason for the legal confusion over U.S. EPA regulations setting emissions standards for medical waste incinerators was a previous court ruling on the matter.

The admission could be good news for EPA, which is defending the validity of its 2009 regulation that set new maximum achievable control technology (MACT) standards for medical incinerator emissions under the Clean Air Act. MACT standards are determined using a baseline derived from the best performing incinerators in use.

Hearing arguments on the regulations for the second time, the three judges on the U.S. Court of Appeals for the District of Columbia seemed in agreement that the court made a mistake in 1999 by failing to throw out -- or in legal terminology, vacate -- a 1997 regulation on the same issue. That would have made it clear that EPA had to start the rulemaking process again.

Instead, the court remanded the issue back to EPA, faulting the data used to calculate the baseline standards but not invalidating the regulation. EPA decided to start from scratch and eventually enacted a new regulation in 2009 that the Medical Waste Institute and Energy Recovery Council are now challenging.

They and EPA differ over whether the 1999 court ruling gave EPA the authority take into account more recent data in calculating the new standards.

The industry groups objected to the 2009 rule because EPA used data drawn from sites that have been in operation only since the 1997 regulations were enacted. There are now only 57 units currently operating, a 98 percent reduction since the 1997 regulation initially went into effect.

The challengers say the agency should have included older data from before the 1997 rule went into effect. By using new data, EPA unlawfully set new baseline standards, which the industry groups' attorney, Michael Wigmore of the Bingham McCutchen law firm, described as "MACT-on-MACT standards."

At today's argument, the judges generally seemed sympathetic to the argument made by Justice Department attorney Perry Rosen, who represents EPA, that the agency was effectively given a green light to recalculate the standards and was within its rights to include more up-to-date data in doing so.

Judge Brett Kavanaugh said the "fundamental problem" was that the 1997 regulation should have been vacated. That remark prompted Chief Judge David Sentelle to note that it wasn't EPA's fault that the 1999 ruling was not clear.

Both he and the third member of the panel, Judge Douglas Ginsburg, nevertheless agreed that EPA hadn't needed to wait almost a decade before finalizing a new rule.

"That was the agency's fault," Sentelle said.

In revisiting the 1999 decision, Sentelle said the court had concluded that EPA "had not validly set the floor" for calculating the new standards.

Wigmore attempted to counter by arguing that a ruling in favor of EPA would set a bad precedent.

"If the agency can do it here, it can do it to any industry," he said in reference to using more recent data to revise a rule.

When promulgating rules, EPA is not allowed to recalculate MACT standards as part of a regulation that has been in use for a decade, he added.

In response, Rosen was dismissive of his opponent's "MACT-on-MACT" argument.

"It's a cute term, but it's not accurate," he said.

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