Beveridge & Diamond
Related Practices
Related Practices

EPA Amends Hazardous Air Pollutant Standards for Hazardous Waste Combustors

Beveridge & Diamond, P.C., October 31, 2008

On October 16, 2008, the Administrator of the Environmental Protection Agency (“EPA”) signed a final rule revising the National Emission Standards for Hazardous Air Pollutants (“NESHAP”) for hazardous waste combustors, 40 CFR Part 63, Subpart EEE (“Subpart EEE”).  The hazardous waste combustor rule has been controversial and has been subject to several challenges since it was first issued in 2005.

Section 112(d) of the Clean Air Act requires EPA to promulgate emission standards to control Hazardous Air Pollutants (“HAP”) from new and existing major sources reflecting the maximum achievable degree of reduction in HAP emissions.  The hazardous waste combustor rule affects an estimated 267 major sources of HAP, including hazardous waste incinerators, cement manufacturers, clay products manufacturers, boilers and process heaters, and hydrochloric acid production furnaces. 

Following initial promulgation of a final hazardous waste combustor rule in 2005, 70 Fed. Reg. 59402, EPA received four separate petitions for reconsideration.  In March and October of 2006, the agency agreed to reconsider a total of eight of the roughly twenty issues raised by these petitions.   Shortly thereafter, the United States Court of Appeals for the D.C. Circuit issued an opinion that required EPA to adjust the methodology it had been using to establish the minimum stringency requirements for emissions control in its Section 112(d) rulemakings (known as the “MACT Floor”).  See Sierra Club v. EPA, 479 F.3d 875 (D.C. Cir. 2007).  In response to the decision in Sierra Club, EPA issued a notice in September 2007 discussing which of the hazardous waste combustor standards it believed were consistent with the legal standard for establishing the MACT Floor, and which of those standards it believed needed to be reexamined through subsequent rulemaking in light of the Sierra Club decision. See 72 Fed. Reg. 54875.

The recent amendment to Subpart EEE addresses the eight issues identified for reconsideration in 2006, and responds to comments on the MACT Floor analysis solicited through the September 2007 notice.  The amended rule was published in the Federal Register on October 28, 2008, and is effective immediately — leaving unchanged the October 14, 2008 compliance deadline originally established in the 2005 rule.  See 73 Fed. Reg. 64067.     

Minor Revisions

The amended rule makes minor changes to four provisions that were contained in the 2005 rule. 

1.  Revised new source Particulate Matter (“PM”) standards for cement kilns and hazardous waste incinerators: 

EPA granted reconsideration of the PM standard for new cement kilns in part because industrial petitioners argued the PM standard was derived from faulty test data from the best performing source.  EPA proposed the 2005 standard was overly stringent because even the best performing source, on which the standards were based, could not achieve the emission limit.  In the final amended rule, EPA increased allowable PM emissions to more accurately reflect the actual emission levels achieved by the best performing cement kilns.  Another revision establishes a small increase in allowable PM emissions for new incinerators.  New cement kilns and incinerators (those that commenced construction or reconstruction after April 20, 2004) must comply with the amended standards by October 28, 2008, or the date the source begins operation (whichever is later). 

2.  Amendments to Particulate Matter Detection System (“PMDS”) provisions:

In response to petitions for reconsideration, the amended rule makes a number of technical revisions to the particulate matter detection system provisions.  Of note, the amended rule requires sources to establish site-specific quality assurance measures rather than comply with the Relative Response Audit (“RRA”) provisions of “Procedure 2,” which was required under the 2005 rule. 

3.  Minor revisions to health-based compliance alternative provisions for total chlorine:

The 2005 rule allowed hazardous waste combustors, other than hydrochloric acid production furnaces, to establish and comply with health-based compliance alternatives in lieu of technology based emission standards.  The final amended rule affirms this health based compliance alternative, while adding minor revisions for clarification purposes.

4.  Elimination of sub-categorization scheme for liquid fuel boilers:

The amended rule abandons the sub-categorization scheme that set different emission standards for liquid fuel boilers depending on the heating value of the hazardous waste burned at the facility.  EPA intends to amend these standards in subsequent rulemaking.  

Other Issues Reconsidered but not Revised

EPA ultimately decided not to modify the 2005 rule with respect to the other four issues for which reconsideration was granted.  EPA defended its total chlorine measuring system as accurate, and affirmed its tie-breaking procedures for new source standards in the event multiple sources achieve the same best performance scores.  Likewise, EPA made no changes to the “beyond the floor” analysis to consider multiple HAPs that are controlled by a single mechanism.  Finally, EPA retained the dioxin/furan standards as promulgated in the 2005 rule.  

Other Actions

EPA also took the opportunity to make several clerical clarifications and corrections to various provisions of the 2005 rule.  Additionally, EPA used the rule-making to gather input on its rationale for identifying those emission standards it intends to defend on the basis of the original MACT Floor determinations, and those standards that it intends to re-examine.  EPA noted that all commenters but one supported EPA’s analysis of the standards.

More information on the standards for hazardous air pollutants for hazardous waste combustors can be found at:  For more information on this topic, please contact Stephen Richmond at, or Graham St. Michel at