Will EPA's Medwaste Rule Burn Up Incineration?

The U.S. Environmental Protection Agency (EPA), Washington, D.C., estimates that its medwaste incineration rule could close 50 percent to 80 percent of the nation's estimated 2,400 medical waste incineration units. And while the rule has its supporters and its adversaries, there is no doubt in the waste industry's mind that it will forever change the way medwaste is disposed.

However, more than two years after it was signed by EPA Administrator Carol M. Browner, the rule still hovers in limbo. In March, the U.S. Court of Appeals for the District of Columbia Circuit remanded the rule back to the EPA for further explanation, answering a lawsuit filed by Earthjustice Legal Defense Fund (EJLDF), Washington, D.C.

The rule places emissions limits on nine key pollutants from new and existing medwaste burners - everything from dioxins and furans to particulates and acid-gases such as hydrogen chloride and sulfur dioxide. The other categories are carbon monoxide, nitrogen oxides and three heavy metals: mercury, lead and cadmium.

The rule requires incinerator owners and operators to determine whether to retrofit their existing incinerator or shut down the incinerator in favor of another medwaste disposal option - new incinerator, autoclave or alternative technology, says Alice Jacobsohn, manager of waste programs for the National Solid Wastes Management Association (NSWMA), Washington, D.C.

Jacobsohn predicts big changes once the rule finally is implemented. "I suspect over the next 10 years you will find fewer medical waste treatment companies remaining in business. Between pollution prevention, waste minimization, changing regulations, new methods in healthcare management and consolidation of businesses, it's very hard to make marketing decisions about dealing with medwaste material," she says.

The rule's ultimate effect on waste hauling is difficult to predict. Solid waste companies could haul more medwaste if healthcare facilities turn to outside sources for handling disposal. "Or it could be a wash if healthcare facilities can increase their waste minimization significantly or use onsite alternative equipment," Jacobsohn says.

No one really knows how much outsourcing will take place and how much equipment will be changed, she says, pointing out that factors other than cost are involved in deciding on appropriate medwaste disposal. Companies must consider the community and its acceptance of disposal methods, she says. Some communities may not want increased hauler traffic, while other communities may object to particular alternative disposal options.

Meanwhile, at a November 1998 hearing, EJLDF argued that in writing the rule, the EPA incorrectly interpreted the Clean Air Act's minimum mandatory stringency for existing incinerators. The Clean Air Act requires that emissions limits reflect what can be achieved through the best-performing 12 percent of incinerators in the country. EJLDF says the EPA inappropriately based some emissions limits, referred to as a maximum achievable control technology (MACT) floor, on permit data, rather than on actual emissions data.

EJLDF argued that EPA failed to sample enough incinerator units to produce a figure that is equal to the best performing 12 percent of incinerators. EPA countered that it sampled enough units of different capacities to predict a MACT floor that complies with the Clean Air Act.

James Hemby, analyst for EPA's Office of Air Quality Planning and Standards, Research Triangle Park, N.C., says the EPA currently is working to address the court's request for further explanation. "We don't have a good sense of the time it will take to do so," he says. The court did not set a deadline for the EPA.

The EPA must review the extensive database of emissions limits and permit records it used to draft the rule, Hemby says, adding, "We have to do a reevaluation of what got us to our first position on the rule. We recognize the regulated community's need to know [the rule's details] with some certainty."

EJLDF attorney Jim Pew says the court's ruling means that the EPA now must ensure the MACT floor reflects the best performing units. He praised the court's ruling, calling it outstanding. "This was a very conservative panel [of judges]."

Jacobsohn noted that the lack of resolution is particularly a problem because there is no deadline for the explanation, she says. "What happens if a state comes up with an implementation plan and it has to be changed? If a hospital or company has a very old incinerator, the easy answer may be to get rid of it. But what do they do next?" she asks.

"How can you leave a rule in place and send it back for explanation?" she continues. "The rule is sort of there and sort of not there. I don't think the resulting uncertainty is in anyone's interest, including the environment, which EJLDF claims to support."

Deadlines Remain Meanwhile, the lawsuit is not affecting the rule, which remains in place and takes effect Sept. 15, 1999, Hemby says. States are supposed to complete plans for compliance with the rule and submit the plan to the EPA by that date. If a state misses that deadline, it must use EPA's federal plan, which is due the same day.

But there's yet another hitch.

As of June 1, the EPA's federal plan for rule compliance had not been signed, making it unlikely that the final federal plan will be published in the Federal Register by the Sept. 15 date. A proposed plan was published in July with the comment period closing on Sept. 7.

Such unfinished business, however, means little for states and the 1999 deadline they are facing. According to Valerie Broadwell, an environmental protection specialist with EPA in Research Triangle Park, N.C., and an author of the federal plan, the outcome of the lawsuit has no effect on deadlines prescribed in the rule.

Broadwell says it would be a mistake for state agencies to delay compliance plans. State plans must be approved by the EPA to square with the Clean Air Act's final deadline of Sept. 15, 2002. "Say a state dragged its feet and didn't get a plan in until 2001. By 2002, non-compliant emission sources will have to be shut down," she says.

Technically, states should have plans completed by Sept. 15. Failure to do so will not bring any repercussions, however it may cause them problems when the Sept. 15, 2002 date rolls around, particularly if they do not have EPA approved state plans and must adopt the federal plan, whether they want to or not.

Broadwell says it's to a state's advantage to set up a plan and tailor it to local preferences, rather than to take the federal plan verbatim. In addition, such a move will give emission sources - incinerators - more time and flexibility to comply.

The basic elements of the federal plan do not differ from what EPA requires of a state plan, Broadwell says. A state plan must be at least as strict as the EPA's federal plan, although the state can require more stringent limits on emission sources than the EPA, she says. Both plans have basic requisites: A listing of waste sources; emissions from those sources; emission limits; a method of enforcing emission limits; public hearings; operator training and qualifications requirements; emissions reporting; and emissions record keeping.

"Whenever my federal plan goes into effect, they have to follow it. We have a one-size-fits all plan," Broadwell says. Although schedules and due dates remain in place, Broadwell declined to comment on whether the lawsuit's outcome would change anything in the federal plan.