Monday, June 27, 2011

Medical Waste Institute v. U.S. EPA

Jun 24: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1297. Petitioners Medical Waste Institute and Energy Recovery Council, trade associations representing the medical waste and waste-to-energy industries, respectively, petition for review of a regulation promulgated by U.S. EPA setting performance standards for new and existing hospital/medical/infectious waste incinerators (HMIWI). Petitioners argue that the data set EPA used to establish these standards was flawed, that the Agency's pollutant-by-pollutant approach to setting target emissions levels was impermissible, and that the Agency acted arbitrarily when it removed a provision exempting HMIWI from complying with the standards during periods of startup, shutdown, and malfunction. The EPA counters that the Appeals Court lacks jurisdiction to review the two latter claims, and that the use of the data set was justifiable. The Appeals Court said, "We agree with the EPA and deny the petition for review."
    The challenged regulation, titled "Standards of Performance for New Stationary Sources and Emissions Guidelines for Existing Sources: Hospital/Medical/Infectious Waste Incinerators," was issued pursuant to Section 129 of the Clean Air Act (CAA), 42 U.S.C. § 7429. The statute directs the EPA to set required levels of emissions reduction for nine listed air pollutants, as well as for opacity where appropriate. § 7429(a)(4). The statute sets forth the factors EPA is to consider in establishing the standards.
    The Appeals Court concluded, "We hold that the EPA's decision to use emissions data from the HMIWI units remaining in operation after the implementation of the 1997 standards, once it determined that the data set upon which it had relied in 1997 was flawed, was reasonable. We do not have jurisdiction to review the challenges to the EPA's long-standing practice of setting emissions floors based on emissions levels achieved by the best performing unit or units for each individual pollutant, and to the agency's removal of an exemption from compliance with emissions limitations during periods of startup, shutdown, and malfunction. The petition is dismissed in part and denied in part."
    Access the complete opinion (click here). [*Haz/Medical, *CADC]

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