Court Throws Out EPA's Self-Imposed Stay of Boiler MACT

On February 11, 2011, EPA issued two rules regulating hazardous air pollutants (HAPs) from thousands of industrial sources.  First, the "Boiler MACT" imposed standards on industrial, commercial and institutional boilers and process heaters.  Second, the "CISWI" imposed standards on commercial and industrial solid waste incinerators.   

Both rules were very controversial due to their wide coverage and cost of compliance.  Industry complained that EPA, on prior versions of the rules, failed to analyze real world data regarding standards.  Their failure resulted in standards that industry charged no facility had actually achieved in practice.

Environmental groups alleged that the rules were long overdue and EPA was simply delaying the rules due to pressure from industry.  When the rules were issued in February 2011, the Sierra Club filed challenged in the Court of Appeals.  EPA also announced that it was reconsidering the rules to take more time to analyze the data provided by industry during the comment period.

On May 18, 2011, two days before the rules were to take effect, EPA self-imposed a stay on the effectiveness of both rules.  EPA's stay was referred to as its "Delay Notice."  In the federal register announcement regarding the Delay Notice, EPA said the stay would be effective until judicial review proceedings were over or it completed its reconsideration of the rules, whichever occurred earlier.

EPA said the Delay Notice was necessary in order to avoid requiring thousands of facilities to comply with standards that soon may change.  EPA argued that once facilities began making investments to meet the standards, those investments would be irreversible.

The Court did not find any of EPA's justifications for the Delay Notice valid.  The Court even denied EPA's request to remand the Delay Notice so that EPA could provide better justification for the action.  The Court threw out the stay and issued an order requiring EPA to take immediate action to comply with its order. (Click here for Court's decision throwing out the stay of the Boiler MACT)

EPA had indicated it was going to complete is reconsideration by April 2012.  Therefore, it was able to delay the rules for most of the period it originally intended to complete its reconsideration.  However, now EPA will have no choice but to issue both rules.  More importantly, thousands of faculties across the country will likely be facing compliance deadlines with the clock beginning to tick this Spring.

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