A federal appeals court rejected a challenge today to the toxic emissions limits that U.S. EPA chose for medical waste incinerators in 2009, turning away industry groups who say the rules were stricter than the law allows.
EPA may have "dithered" for a decade after the court found that a previous version of the rules was based on inadequate data, but when the agency finally acted, it made a reasonable attempt to base its emissions limits on the best data available, the U.S. Circuit Court of Appeals for the District of Columbia ruled.
"The delay imposed protracted regulatory uncertainty on the industry, which continued to be subject to the 1997 standards while the agency dithered," Chief Judge David Sentelle wrote in an opinion. "But neither the length of the delay nor the problems caused by that delay affect the ultimate validity of the EPA's product."
There are now 57 medical waste incinerators left, which is about 98 percent fewer than when the 1997 rules were put in place. It used to be that thousands of hospitals would burn their waste on-site, but today, most of them send it to specialized incinerators or make it safe to be sent to landfills.
Two industry groups, the Medical Waste Institute and the Energy Recovery Council, had challenged the 2009 rules.
Under the Clean Air Act, large sources of toxic emissions are supposed to be subject to pollution limits that are equivalent to the maximum achievable control technology, or MACT, for a given sector. It is calculated using a formula that requires existing plants to keep their emissions as low as the average of the 12 percent of facilities that release the least pollution.
When the rules were redone, prompted by a lawsuit from the environmental group Earthjustice, EPA used data from the medical waste incinerators that were still up and running. Most of them had already shut down, making it impossible to get reliable historical emissions data, the agency argued in court.
The industry groups argued that the new limits were a "MACT-on-MACT" standard -- essentially, the top 12 percent of the few incinerators that had survived the original rules (Greenwire, Nov. 16, 2010).
That made the rules stricter than before. And normally, when EPA wants to go beyond the requirements of MACT, it is supposed to show that the health and environmental benefits of the extra pollution cuts are worth the cost.
But the court sided with the administration, which borrowed the industry groups' lingo and argued that its rule was actually a "MACT-on-Unsupportable-Standards-Erroneously-Labeled-as-MACT" standard.
Because the agency found the original rules were based on shoddy data, it was working with a "blank slate" and could use the usual MACT formula, wrote Sentelle, whose opinion was joined by the other two judges on the panel.
Jim Pew, a staff attorney at Earthjustice whose lawsuit led the court to redo the original standards, said the 2009 rule was the first one that EPA did "largely right" on toxic emissions.
"They followed the law, and they provided much more protection," Pew said. "This is the first backlash to EPA actually doing rules the way the Clean Air Act requires, and it's pleasing to see that where the court reached the merits, it disagreed [with the challenges]."
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