There’s More than Just Climate: People Need Protection Against Air Toxics, Too

By Seth Johnson — November 13 at 10:39 a.m.

file0001225592472(1)Seth Johnson is a Senior Associate Attorney with Earthjustice and a graduate of Harvard Law School, where he served as Editor-in-Chief of the Harvard Environmental Law Review.

Climate change is the environmental issue of the day and it, deservedly, is the focus of great attention. But many domestic air pollution issues remain, and millions of Americans await long-overdue protections against toxic and cancer-causing air pollutants like dioxins, mercury, cadmium, chromium, lead and benzene. These issues are often in the shadow of climate change discussions, even though the legal fights over how to regulate these pollutants have been going on for decades and will continue.

One issue that is now the subject of litigation consists of four cases, all relating to how much protection people will receive against hazardous air pollution emitted from industrial boilers—power and heat plants for industrial facilities—and facilities that burn nonhazardous commercial or industrial waste (“waste-burners”). Millions of Americans live, work, pray, and play near these air pollution sources. EPA was required to establish emission standards for the waste-burners in 1994 and for all the industrial boilers by 2000, but it still has not issued lawful versions of these rules.

Per the Clean Air Act (and the D.C. Circuit), a waste-burner is any facility that burns for any reason any nonhazardous commercial or industrial “solid waste,” and EPA defines “solid waste” under the Resource Conservation and Recovery Act (RCRA). If a facility is a waste-burner, it must meet very protective “MACT”-level standards, which must reflect what the best-performing sources actually achieve, under Clean Air Act § 129. Such facilities also must have an operating permit that gives the public information about what the facility burns and emits, and makes it easier for the public to hold the facility accountable.

If a facility is not a waste-burner, but is a conventionally fueled industrial boiler, cement plant, or power plant, it may be subject to less restrictive regulation under Clean Air Act § 112. Though some of these facilities are “major sources” under Clean Air Act § 112 and thus also subject to very protective “MACT”-level standards, most are “area sources” that EPA can regulate under the less-protective regime known as “generally available control technology” (GACT). Area sources also do not need to obtain the same operating permits as major sources and waste-burners. So, there is more protection against emissions from waste-burners than there is against emissions from area sources.

The four rules being challenged (1) define nonhazardous solid waste, (2) set standards for waste-burners, (3) set standards for major source industrial boilers, and (4) set standards for area source industrial boilers. The nonhazardous solid waste definition is the key regulatory switching provision for the other three rules.

For defining solid waste under RCRA, everything hinges on the meaning of the word “discarded.” EPA has decided that tires people dispose of at the tire shop, used motor oil people get rid of at the service station, wooden debris from when people tear down houses, and anything that is thrown out—even just household garbage—that eventually gets processed and burned for energy are not discarded and thus are not solid waste. As a result, facilities can burn these materials without being considered a waste-burner and are not subject to protective standards limiting emissions of noxious pollutants.

Environmental groups challenge EPA’s determination of what constitutes solid waste, since “discarded” unambiguously has its plain meaning—abandoned, thrown away, or disposed of—and would encompass many materials that EPA determined are not solid waste. Environmental groups also challenge the other three rules as unlawfully under-protective (some of these arguments are summarized here and here). Unsurprisingly, some industry groups challenge all the rules as forcing them to reduce emissions too much. Briefing in the solid waste definition case has ended; briefing in the three other cases will wrap up in March 2015. Oral arguments have not been scheduled yet, but the same D.C. Circuit panel will hear all the cases.

These cases are important not only because of their ramifications for the health of millions of Americans, but also as pure legal issues. The case concerning the definition of solid waste may clarify some rather confusing D.C. Circuit precedent on RCRA. The other cases come after EPA’s approach to air toxics was repeatedly weighed and found wanting, both for how EPA set standards and for EPA’s efforts to allow “malfunctions” to escape control. EPA adjusted, and the D.C. Circuit has upheld EPA’s standard-setting methodology in many—though not all—of EPA’s more recent air toxics rules.

EPA’s approach to regulating air toxics has thus been changing as EPA, environmental groups, and industry groups press their readings of the Clean Air Act in light of judicial decisions. Thanks in part to the colossus of climate change, that ongoing story is playing out, as the first volume did, in some shadow. But the story is interesting, and extremely important.