Regulating clean air: a modern morality play.

Once upon a time, there was a Congress that loved the Earth and the Air. The Congress decided that presidential appointees to the Environmental Protection Agency (EPA) could not be trusted to do a good job protecting the Earth and the Air from the polluters of American industry. Every few years, the Congress wrote a new Clean Air Act that gave fewer options to the EPA and provided more details on what the EPA had to do.

In 1990, the Congress passed a Clean Air Act with a special clause, known as Section 129, that required the EPA to regulate air pollution emissions from solid waste incinerators - the kind used, for example, by some nursing homes to dispose of medical waste. Medical waste incinerators are among the most important source of two pollutant chemicals - dioxin and air-borne mercury - that can cause serious health problems. Section 129 ordered the EPA to apply a standard known as Maximum Achievable Control Technology, or MACT, to medical waste incinerators, thus modifying them to be as effective as the most pollutant-free incinerators now on the market. It also required the EPA to insist that all new incinerators reduce emissions to the level now available from the best (and most expensive) existing equipment.

What ensued might come as a surprise to today's "bureaucrat busters": The EPA did not comply with the 1990 Clean Air Act. Aware that imposing such standards on the small incinerators used for medical waste could be very costly, and that the requirements could force hospitals and nursing homes to abandon the use of incineration in favor of dumping medical waste in commercial landfills, the experts dragged their heels. Since no one had studied whether the tiny amounts of dioxin, mercury, and other pollutants released from medical waste incinerators represent a truly significant health hazard, it was not clear that the new regulations would make a measurable difference in air quality. And so it happened that the EPA let a congressional deadline of November 15, 1992 pass, without even issuing draft regulations on medical waste incinerators.

Agencies cannot simply ignore federal laws. The EPA was sued for failing to comply with the 1990 Clean Air Act, and a federal judge ordered the agency to propose standards for medical waste incinerators by February 1, 1995, with final standards in place by April 1, 1996.

The EPA technically failed to meet this timetable - but only by one day. On February 2nd, the EPA proposed draft guidelines that would eventually require medical waste incinerators to emit only one percent of the dioxin emissions that escape from current incinerators. The draft guidelines propose similar standards for eight other pollutants, including cadmium, mercury, lead, carbon monoxide, and hydrogen chloride. Public comments are now being invited that will be considered in preparing the 1996 final guidelines. These guidelines will, in turn, form the basis for state government regulations that will enforce the application of the standards to approximately 4,400 medical waste incinerators throughout the United States. Effected nursing homes may not be required to comply with the new standard until 1998 or later.

According to Fred Porter of EPA's Office of Air Quality Planning and Standards, the lengthy delay between the publication of draft standards this spring and final requirements for incinerator compliance gives nursing homes the time to reconsider how they handle medical waste. "It's like a great big snowball rolling down a mountain; if you ignore the snowball, it's going to run right over you. It's not too early to start thinking about your options and what your options are in the worst case."

Following this line of thinking, large nursing homes and nursing homes that share a campus with a hospital might use the time to compare the costs of commercial waste management versus purchase and operation of an EPA-approved incinerator. Meanwhile, the public comment period offers them a chance to modify the new proposals. The EPA particularly wants to hear about the possibility of establishing separate regulations for very small medical waste incinerators that are usually located in rural areas, and would appreciate information on the availability, cost, and performance of alternative methods of waste disposal.(*)

But what about - "the Republican Revolution"? The environmentalist majority that passed the Clean Air Act of 1990 is gone from Capitol Hill, along with the Bush Administration that agreed to the legislation. The new Republican majority in Congress is far more concerned about the short-term costs of regulation to business, and has served notice that it will prevent enforcement of environmental standards that hurt profitability. The Clean Air Act of 1990 is often used by Republican freshmen as an example of the kind of unnecessary restrictions that cost far more than the value of their benefits.

It's possible, therefore, that the EPA's action against medical waste incinerators, forced on the reluctant agency by an activist Congress, will be blocked by another activist (or counteractivist) Congress, with proposals that will tie up regulatory action in legal tangles beyond the most rebellious EPA bureaucrat's dreams.

Welcome to the new Washington.

* Technical information on the proposed Section 129 medical waste incinerator standards can be obtained by calling Rick Copeland of the EPA at 919-541-5265.