AMSA Legal Alert (Leg02-3)

On February 12, 2002, the U.S. Environmental Protection Agency (EPA) took a long overdue action that finally removes sewage sludge incinerators (SSIs) from the scope of the Clean Air Act's (CAA) §112(d) technology-based maximum achievable control technology (MACT) program. See 67 Fed. Reg. 6521. EPA's action is the result of AMSA members' extensive efforts over the past several years to provide EPA with comments and data supporting the delisting action. EPA's Federal Register notice is available at http://www.amsa-cleanwater.org/private/legalalerts/leg02-3a.htm.

The MACT Program and SSIs
The MACT program applies to "major sources" of hazardous air pollutants (HAPs), which are those sources with the potential to emit 10 tons per year (tpy) or more of any one HAP, or 25 tpy or more of any combination of HAPs. In the Federal Register notice this week, EPA notes that in July 1992 it placed SSIs on the CAA §112(c)(6) list of source categories to be regulated by MACT standards. EPA states, however, that after evaluating available emissions information, the Agency "concluded that the Sewage Sludge Incineration source category does not have any sources with the potential to emit HAP at a level approaching major source levels." See 67 Fed. Reg. 6523. EPA's notice therefore delists SSIs from the source categories scheduled for MACT development under CAA §112(c)(6). EPA's states that the actions taken in the Federal Register notice are not subject to legal challenge or public comment.

In July 2001, the Sierra Club sued EPA for its failure to issue numerous MACT standards by the CAA November 15, 2000 deadline. Because EPA did not accomplish the SSI delisting before that date, Sierra Club included SSIs in the MACT suit. On October 26, 2001, AMSA moved to intervene in the case in the U.S. District Court for the District of Columbia. AMSA's motion explained that EPA was poised to delist SSIs from the MACT development schedule. On January 23, 2002, the Court granted AMSA's motion. AMSA attended a meeting on February 12, 2002 with the U.S. Department of Justice, EPA, and representatives of other industries captured in Sierra Club's MACT lawsuit. AMSA indicated that EPA's SSI delisting renders our inclusion in the MACT lawsuit moot. AMSA will proceed to file the appropriate papers with the court to conclude AMSA's participation in the case.

Related Clean Air Act Litigation
While EPA's action this week soon should bring AMSA's role in the MACT case to an end, AMSA is involved in two other Sierra Club lawsuits alleging EPA's failure to meet other CAA deadlines. One suit seeks performance standards and other requirements under CAA §129 for "other solid waste incinerators," including SSIs. AMSA moved to intervene in this case on October 26, 2001 and awaits the court's ruling on our motion. AMSA's long-standing position is that SSI regulation under CAA §129 is unsupported by the statute because sewage sludge is not a "solid waste" generated by "commercial or industrial sources" as required by the CAA.

The other case seeks overdue technology-based CAA standards for urban area sources of HAPs under CAA §112(k). Area sources are those emitting less than 10 tpy of any one HAP or less than 25 tpy of any combination of HAPs. POTWs are one of the area source categories EPA plans to regulate under the urban program. See 64 Fed. Reg. 38,721 (July 19, 1999). EPA also may regulate SSIs under the §112(k) program. Id. at 38,722. AMSA moved to intervene in the CAA §112(k) case on February 12, 2002. AMSA believes that POTWs and SSIs are not significant contributors of any of the HAPs of concern to EPA in urban areas, and that data EPA used to list POTWs as an area source category in 1999 do not reflect current emission rates. In addition, in late 2001 EPA contacted AMSA to obtain updated information on SSI emissions of cadmium compounds, one of the urban HAPs of concern. AMSA member agencies found EPA's SSI cadmium data incorrect by an order of magnitude, and that at least one agency identified by EPA no longer incinerates biosolids.

For More Information
We will continue to keep the membership informed of developments in these cases. AMSA members can follow active AMSA cases by visiting the Litigation Tracking section of the Member Pipeline where key documents from AMSA litigations are posted at http://www.amsa-cleanwater.org/private/littrack/littrack.cfm. And, as always, please feel free to contact AMSA's General Counsel Alexandra Dunn at 202/533-1803 or adunn@amsa-cleanwater.org with any questions on AMSA's legal activities.