The D.C. Circuit Court of Appeals has denied an industry challenge to EPA’s emissions standards for new and existing hospital, medical and infectious waste incinerators. Med. Waste Inst. v. EPA, No. 09-1297 (D.C. Cir. 6/24/11). Petitioners argued 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 [these incinerators] from complying with the standards during periods of startup, shutdown, and malfunction.”
Issued in 2009, the standards set the level of emissions control—based on maximum achievable control technology (MACT)—that must be used in new or reconstructed medical incinerators. EPA first issued the standards in 1997, but the appeals court remanded them to the agency for further explanation after finding that “EPA’s method looks hopelessly irrational.” Sierra Club v. EPA, 167 F.3d 658 (D.C. Cir. 1999). The court did not vacate the standards at the plaintiff’s request, thus they remained in force until the current standards were issued.
The appellate court criticized the 10-year delay in issuing the standards, but held that neither the length of the delay nor the “protracted regulatory uncertainty imposed on the industry” affects the rules’ ultimate validity. The court dismissed the petition for review, in part, for lack of jurisdiction because petitioners failed to follow procedural rules necessary to preserve their objections. The court concluded that EPA acted lawfully in “resetting the MACT floors based on post-compliance emissions data” after concluding that such data were “the most reliable” available.