Appeals Court Vacates EPA Incinerator Rule

A panel of federal judges has reaffirmed that the Environmental Protection Agency violated the Clean Air Act by relaxing limits on emissions of smog-forming compounds from large power plants, factories, and other industrial sources.

As a result, chemical plants, refineries, and other industrial facilities that burn the waste they generate in on-site incinerators must comply with the law's most stringent rules governing hazardous air pollutants.

The June 8 decision by a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia reaffirmed a December 2006 ruling by the same court that struck down an attempt by EPA to exempt thousands of waste incinerators from emissions control standards that are designed to limit smog-forming pollution from industrial facilities.

EPA had argued that it could set less protective standards for these incinerators by treating them as though they were "boilers" or "process heaters" that burn only fossil fuels. The court rejected that argument, stating that facilities that burn waste are incinerators and therefore must meet the Clean Air Act's highly stringent incinerator standards.

The three-judge panel denied petitions by EPA and industry groups for a rehearing, and it directed the agency to "act promptly in promulgating a revised rule that effectuates the statutory mandate by implementing the eight-hour [ozone] standard, which was deemed necessary to protect the public health a decade ago." That standard specifies an allowable average ozone level over an eight-hour period.

"Once again, a court had to remind EPA that it cannot rewrite the Clean Air Act to suit this Administration's antienvironmental policies," says James Pew, an attorney with Earthjustice, the Oakland, Calif.-based law firm that challenged EPA's rule on behalf of a group of public health and environmental organizations.

EPA says the court "has vacated two important rules that would have significantly reduced air toxics emissions from industrial boilers." The agency is reviewing the decision to determine its next steps.