ELR Citation: ELR 21306
No(s). s. 91-1168, -1170 (D.C. Cir. Jul 14, 1992)

The court holds that the U.S. Environmental Protection Agency (EPA) properly supported its decision not to promulgate a requirement mandating waste separation in its proposed rules regulating municipal incinerators under §111 of the Clean Air Act, but EPA did not adequately explain its reasons for omitting a ban on the burning of lead-acid batteries. When it promulgated its final rules, EPA abandoned two sections of its proposed rules covering materials separation and battery burning, which the Office of Management and Budget and the President's Council on Competitiveness (PCC) had disapproved. The court initially holds that EPA may exercise its discretion under the Clean Air Act to determine the best demonstrated technology (BDT) for limiting harmful emissions, because Congress did not specify the weight EPA should accord to air quality or other factors in determining BDT. The court then holds that EPA's decision to abandon the separation requirement for recoverable or recyclable materials is adequately supported. First, sufficient evidence supports EPA's conclusion that emissions reductions resulting from materials separation were difficult to quantify and relatively small. Second, while EPA initially forecast a likely benefit from requiring separation and recycling, the agency's changed position in the final rules was supported by comments that uncertainty over costs associated with separation and recycling might be even greater than EPA had originally believed. Third, EPA was not obliged to address the option of issuing combustion permits for incinerator operators unable to find a recycling market for recovered materials, because combustion permits would not have solved the problems that led EPA to change its position. Fourth, EPA's use of a worst-case scenario in making economic predictions was permissible, and several commentors supported the Agency's economic predictions. Finally, that EPA reevaluated its conclusions in light of the advice from the PCC does not mean that the Agency failed to exercise its own expertise in promulgating the final rules. The Clean Air Act allows EPA to balance costs and benefits both related and unrelated to air quality; thus, EPA's change of position on the materials separation requirement was not improper. The court next holds that EPA did not adequately discuss the economic benefits that would justify omitting from the final rules the provision banning the burning of lead-acid batteries. EPA originally proposed the ban as the best demonstrated technology for reducing emissions from batteries, and the Clean Air Act requires the Agency to explain why it changed its mind on this point. The mere existence of statutory authority in the Resource Conservation and Recovery Act that includes strict provisions against the burning of lead-acid batteries is insufficient to justify the omission of the battery ban.

Counsel for Petitioners
James A. Sevinsky, Joan L. Matthews, Ass't Attorneys General
New York State Attorney General's Office
120 Broadway, New York NY 10271
(212) 416-8000

Counsel for Respondents
Robert J. Martineau Jr.
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 260-2090

Before SILBERMAN, HENDERSON, and RANDOLPH, Circuit Judges.