Down the Rabbit Hole: The Curious Case of the Hazardous Waste Combustion MACT

摘要

The United States Environmental Protection Agency's rule regulating emissions from hazardous waste combustors - commonly called the Hazardous Waste Combustor MACT - was promulgated on October 12, 2005. It is the final source category to receive technology-based regulations under the Agency's National Emission Standards for Hazardous Air Pollutants (NESHAP) program that started 16 years ago. During the past 10 years, the rule has been developed and debated, proposed and promulgated, challenged and vacated, resurrected by negotiation, re-proposed, and re-promulgated. After all this study, discussion, debate, review, and drafting, it should be authoritative and definitive. However, significant questions regarding the rule's legitimacy and legality still swirl around it. These issues arise from a steady barrage of court cases challenging many different MACT standards over the past 10 years. These cases resulted in court decisions invalidating the vast majority of the disputed rules, including the first promulgation of the HWC MACT. Due to ambiguity in the Agency's authority, the atypical nature of the hazardous waste combustor source category, and the court's difficulty understanding the Agency's complicated MACT setting process, fresh judicial challenges pose real threats to the viability of the new rules despite all of these efforts. The most troubling aspect of this curious circumstance is that any court decision regarding the newest MACT challenge may come after facilities have already upgraded units to comply with new standards, thereby forcing facilities to undertake additional upgrades in the near future. This will only be the latest chapter of an extraordinary rulemaking adventure.