The EPA is currently defending its process for establishing standards for emissions of hazardous air pollutants from solid waste incinerators before the D.C. Court of Appeals.1
Historically, EPA takes a pollutant-by-pollutant approach when determining maximum achievable control technology (MACT) standards for commercial and industrial solid waste incineration units. Industry groups have attacked the EPA's approach which resulted in standards that cannot actually be achieved by existing industrial incinerators. These groups argue that the Clean Air Act requires EPA to set MACT standards based on average overall industry emissions, rather than selecting the best performing units for each individual pollutant. Conversely, environmental groups allege that EPA has violated the Clean Air Act by failing to set more stringent emissions standards that are achievable using widely available technology that most incinerator operators are already planning to install.
EPA has responded that the Clean Air Act is ambiguous with regard to how MACT standards should be set, and that the agency is entitled to "considerable deference" on its decision-making process. EPA has asserted that its approach was reasonable and that it had used a pollutant-by-pollutant approach in past rulemakings. Further, EPA claimed it had determined that stricter emissions standards were not achievable by the incinerator source category.
The outcome of this litigation could have a significant impact on the cost of compliance with EPA's MACT standards.
Footnotes
1. Am. Forest & Paper Ass'n v. EPA, D.C. Cir., No. 11-1125
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