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Court Rejects U.S. EPA’s Request to Delay Boiler MACT and CISWI NSPS Rules

02.01.2011

By Jennifer Thompson, Attorney, Bingham Greenebaum Doll LLP

On January 20, 2011, the D.C. Circuit Court of Appeals rejected the United States Environmental Protection Agency’s (“U.S. EPA’s”) request to extend the court-ordered deadline to issue the final National Emission Standards for Hazardous Air Pollutants for Industrial, Commercial, and Institutional Boilers and Process Heaters (“Boiler MACT”) and the New Source Performance Standards for Commercial and Industrial Solid Waste Incineration Units (“CISWI NSPS”) from January 16, 2011 to April 2012. Instead the Court ruled that the standards shall be made final by February 21, 2011.

U.S. EPA requested the extensions because it: (1) received new emissions data that identify inaccuracies used in setting the baseline emissions limits and other sub-categorization options; (2) wanted to be in a position to respond to the more than 4,800 comments it received on the proposed Boiler MACT and the complex comments challenging the MACT floors for the CISWI NSPS; and (3) believed an additional public-notice period was necessary because it plans to make significant changes to the rules as originally proposed.

Although U.S. EPA reports that it plans to meet the court-ordered deadline, it has announced that it will immediately undertake an administrative reconsideration of the rules. The reconsideration will give the public an opportunity to comment on the standards and U.S. EPA the opportunity to address any logical outgrowth issues or other substantive issues raised during the public comment period.

As expected, the Boiler MACT standards are a popular subject with several members of Congress. Many believe that the Boiler MACT rule puts thousands of jobs at risk because it is impossible for many facilities to meet and it is prohibitively expensive. Some are also looking at the bigger issue of whether promulgating rules by consent order really works, noting that U.S. EPA faces similar issues on several other rulemakings.

As it stands, industry will be forced to comply with regulations which require significant capital expenditures with the knowledge that there is a strong possibility the regulations will be changed substantially in the near future. Boiler owners have been put in a similar dilemma only three years ago. In 2007 a court invalidated the previous Boiler MACT standard just three months prior to its effective date. That ruling came after many facilities had already undertaken the upgrades necessary to comply with the new requirements and after many states had already incorporated the requirements into their state rules.

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