Court Denies EPA Extension for MACT Boiler Rules

A federal district court judge on Thursday sided with environmental groups in a suit against the Environmental Protection Agency (EPA) and gave the Obama administration only 30 extra days to issue Maximum Achievable Control Technology (MACT) rules for large and small boilers, and solid waste and sewage sludge incinerators—not a year, as the agency had sought.

The ruling by Washington-based District Judge Paul Friedman now legally obligates the agency to issue the rules for industrial boilers by Feb. 21. A legal agreement requires final standards on power plants by November. The ruling follows a motion filed by the EPA last month, as reported by POWERnews, in which it sought to have until April 2012 in the current court-ordered schedule to re-propose and finalize rules affecting the nation’s boilers and incinerators.

The agency had claimed that the additional time would have allowed it to address in a new proposal the “significant issues” raised in the 4,800 public comments it received, “including the scope and coverage of the rules and the way to categorize the various boiler types.” The extension would also have allowed it to “gain additional public comment and information, and finalize a rule that will be protective and legally defensible,” it said.

The motion was challenged by environmental group Earthjustice on behalf of the Sierra Club, which claimed, “Every day that industry succeeds in delaying these crucial protections equates to human suffering in the form of lives lost and worsened health.” Judge Friedman sided with the groups on Thursday, ruling that the agency had not demonstrated it would have been impossible to meet the court-imposed deadline of Jan. 16.

“The policy arguments EPA raises have no place in a case where Congress has mandated expedition, and its statutorily-mandated deadlines have long since passed,” Friedman wrote in his 26-page decision. “While EPA’s view on the importance of its rules and the preferable course of conduct may have merit, at this stage EPA’s … remedy lies with Congress, not the courts.”

The EPA—which last week, following the court ruling, sent the final rules to the White House Office of Management and Budget—said it was “disappointed  that the extension was not longer” but said it would work “diligently to issue [the] standards by this new deadline.” It noted, without elaboration, that the standards would be “significantly different” than what it had proposed in April 2010.

“The agency believes these changes still deserve further public review and comment and expects to solicit further comment through a reconsideration of the rules,” it said. “The agency is considering all other options for addressing these issues before the rules would become effective 60 days after publication in the Federal Register.”

The rule as currently proposed has particular implications for biomass boilers. Previously considered multifuel boilers, these would instead be classified as incinerators and be subject to new mercury, carbon monoxide, and carbon dioxide emission limits. The Biomass Power Association has said that, as they stand, the rules proposed last April could cripple the biomass power industry because they would require expensive retrofits at most existing facilities.

On Thursday, a number of industry groups issued strong reactions to court’s ruling. “The extension of one month falls well short of the time requested by the agency to allow a sound rule to be put forth,” said Donna Harman, president and CEO of the American Forest and Paper Association. “Regulations such as the boiler MACT rule have far reaching implications for communities, workers and businesses across the country. The overriding mission should be to produce a sound rule that keeps Americans healthy and employed, and today’s decision by the court fails to give the agency what it said it needed. Today’s decision invites more litigation, and ultimately everyone loses as a result of this short-sighted decision.”

The American Wood Council also released a statement: “It is disappointing that the court did not see fit to grant EPA’s request for a 15-month extension, forcing EPA to quickly put out a rule."

Sources: POWERnews, EPA, Earthjustice, Biomass Power Association, American Forest and Paper Association, American Wood Council

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