Court Shuts Down Illegal EPA Incinerator Rule


Decision will require protective controls for toxic emissions from waste burners


James Pew, Earthjustice, (202) 667-4500

A federal court June 8 shut down the Environmental Protection Agency’s attempt to exempt tens of thousands of waste incinerators from the protective controls that the Clean Air Act requires. EPA’s rule would have allowed thousands of tons of toxic pollution to go completely uncontrolled. A copy of the court’s decision is available.

The case was brought by NRDC, Sierra Club, Louisiana Environmental Action Network, and Environmental Integrity Project. The parties were represented by Earthjustice and NRDC.

Many industrial facilities, including chemical plants, refineries, metal smelters, and paper mills, burn the waste they generate in on-site incinerators. Among the wastes they burn are chemicals, industrial sludges, plastics, agricultural waste treated with pesticides, chemically treated wood wastes, and used tires. Emissions from these incinerators include mercury, lead, arsenic, dioxins, polychlorinated biphenyls (PCBs), and other highly toxic pollutants.

EPA had argued that it could set far 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, making clear that facilities that burn waste are incinerators and must meet the Clean Air Act’s highly protective incinerator standards.

“EPA has been caught perpetrating a bait-&-switch operation by proposing incinerator rules while exempting nearly every incinerator from the rules,” said Marti Sinclair, Sierra Club’s National Air Committee chair. “EPA needs to quit trying to con the public and start protecting communities, human communities and natural communities, from the ongoing deluge of toxic emissions released by incinerators.”

“EPA’s illegal rules are being struck down in courts with the frequency of characters getting whacked on The Sopranos,” said John Walke, senior attorney for the Natural Resources Defense Council. “The agency should get back to enforcing the law against big polluters, not join their ranks.”

The court’s decision will also require EPA to completely redo its rules for thousands of industrial boilers and process heaters that burn fossil fuel. Among the provisions vacated by the ruling was a highly controversial decision by EPA to allow sources to completely avoid controlling their emissions of hydrochloric acid and several other air pollutants that Congress had listed as “hazardous” in the Clean Air Act.

Incinerators are by far some of the most pervasive sources of toxic air pollution in the country. Collectively, they emit a witches brew of hazardous pollutants that can cause cancer, birth defects, neurological problems in young children and babies, and lung and heart problems.

“This decision is only the latest in a series of defeats for industry lawyers and their political friends at EPA,” said Eric Schaeffer, director of Environmental Integrity Project. “Congress should investigate the number of times that courts have had to step in and stop EPA from drilling new loopholes in laws the Agency is supposed to enforce.”

“Once again, a court had to remind EPA that it cannot rewrite the Clean Air Act to suit this administration’s anti-environmental policies,” said James Pew, Earthjustice attorney. “Congress enacted very protective emission standards to protect Americans from incinerator pollution. EPA may not deprive us of that protection, no matter how badly it wants to help out the administration’s friends in industry.” 

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