In response to a recent decision by a federal court judge that reinstates rules stayed by the Environmental Protection Agency (EPA) in early 2011 and that govern hazardous air pollutant standards for industrial boilers and commercial and industrial solid waste incinerators—so-called Boiler MACT rules—EPA Administrator Lisa Jackson said the agency was committed not to enforce those standards until April, when a new revised suite of boiler standards will be finalized.
“Regarding the impact of the recent court decision, we have carefully reviewed the effect that vacating the stay may have on new and existing sources and plan to address potential impacts. Specifically, using our enforcement discretion, the EPA will issue a no action assurance letter shortly, informing sources that EPA will not enforce any of the administrative notification requirements for new or existing boilers and incinerators in the 2011 Rules for a period of time while the EPA works to take final action on the proposal to reset these dates,” Jackson wrote in a Jan. 18 letter to Sen. Ron Wyden (D-Ore.).
Ruling in a case brought by environmental groups against the EPA, the U.S. District Court for the District of Columbia had last February 2011 ordered the EPA to promulgate overdue Boiler MACT rules. To abide by that ruling, the EPA on March 21 published its final rules. However, on that same day, the EPA stayed the rules, issuing a Delay Notice, and promised to reconsider them because “certain issues of central relevance” arose after the period of public comment.
But later, in July, the Sierra Club filed a petition in the D.C. District Court challenging the validity of the Delay Notice. And on Jan. 10 this year, Judge Paul Friedman vacated the EPA’s stay of the Boiler MACT rules, holding that the agency had unlawfully issued the Delay Notice. The court ruled, among other things, that the EPA had used the wrong legal standard in determining whether the stay should have been issued.
“The Court’s vacatur order creates legal uncertainties for stationary sources which operate these types of emission units; however, the practical impact of the decision remains unclear and may be short lived,” Todd E. Palmer, an attorney for law firm Michael Best & Friedrich LLP opined in the National Law Review.
“The D.C. District Court’s decision leaves open the possibility that EPA could still stay the Boiler MACT and CISWI Rules, but the agency must use different legal and factual criteria. Furthermore, EPA is already on pace to issue a revised version of the Boiler MACT and CISWI Rule in April 2012 which could provide for a delayed compliance extension date as far out as 2015,” he said.
Palmer pointed out that the court’s decision rejected the Sierra Club’s argument that the EPA is restricted to staying Clean Air Act rules for no more than three months. “The Court held that EPA has the power to stay rules for much longer periods of time under section 705 of the Administrative Procedure Act,” he said.
Sources: POWERnews, EPA, National Law Review, VanNess Feldman LLP