Comment submitted by C. Cole

Regarding: Docket ID No. EPA–HQ–OAR–2006–0534 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 60 [EPA–HQ–OAR–2006–0534; FRL–8743–1] Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Hospital/Medical/Infectious Waste Incinerators Comments: The HMIWI proposed rules maintain the current EPA position which exempts bypass or Startup, Shutdown and Malfunction (SSM) emissions from normal emission standards. In a bypass or SSM event, emissions bypass all pollution control devices. Pollutants vent directly into the air. Most of these bypass/SSM emissions events are permitted as part of normal operations. I believe that this EPA rule violates the intent of the Clean Air Act. The HMIWI proposed rules were issued on December 1, 2008. On December 19, 2008 the United States Court of Appeals for the District of Columbia Circuit vacated the SSM exemption for industries covered under Section 112 of the Clean Air Act. The court’s opinion is as follows: Opinion for the Court by Circuit Judge ROGERS. ROGERS, Circuit Judge: Petitioners challenge the final rules promulgated by the Environmental Protection Agency exempting major sources of air pollution from normal emission standards during periods of startups, shutdowns, and malfunctions (“SSM”) and imposing alternative, and arguably less onerous requirements in their place.1 Because the general duty that applies during SSM events is inconsistent with the plain text of section 112 of the Clean Air Act (“CAA”), even accepting that “continuous” for purposes of the definition of “emission standards” under CAA section 302(k) does not mean unchanging, the SSM exemption violates the CAA’s requirement that some section 112 standard apply continuously. Accordingly, we grant the petitions and vacate the SSM exemption. A copy of this decision can be found at: http://www.earthjustice.org/library/legal_docs/decision.pdf It is true that HMIWI are covered under Sections 111 and 129 of the Clean Air Act, not Section 112. However, I would argue that the reasoning provided in the court's decision still applies to HMIWI bypass/SSM emissions. The EPA should apply this court decision to HMIWI. Public health is being challenged by bypass/SSM emissions from HMIWI every year. Maintaining air quality through a continuous standard without exemption is in the public’s best interest. I urge the EPA to rescind the bypass/SSM exemption currently written into the proposed HMIWI rules and to formulate the final rules regarding bypass/SSM events as not exempt from the normal emissions standard. Sincerely, Carolyn Cole Chapel Hill, NC