Washington, 10 January (Argus) — The DC Circuit Court of Appeals has thrown out the Environmental Protection Agency's (EPA) administrative stay on a rule that sets air toxics standards for boilers and commercial solid waste incinerators, a move that reinstates compliance obligations on the industry.
In a decision issued on 9 January, the court ruled that EPA's “delay notice” on the rules, issued on 18 May 2011, was unlawful. The agency published maximum achievable control technology standards for emissions of mercury and air toxics standards for boilers in March 2011 but voluntarily and immediately began a reconsideration of the rule. The Sierra Club in July petitioned the court for review of EPA's delay notice.
EPA had been under court order to promulgate the final rule after it was found to have missed a Clean Air Act deadline for setting MACT standards to control air toxics from the industry. But EPA said it received new data and other information from industry sources after the rule was proposed that led it to believe significant changes should be made to the standards. The agency aimed to put rules on hold while it undertook that reconsideration, in an effort to prevent industry sources from having to comply with rules that would likely be changed.
The court said EPA did not adequately prove that a stay on the rules was crucial to prevent irreparable harm to any party that could be affected, because it did not go through the “four-point test” for determining whether a stay is merited.
The same rules have been challenged in the same federal court, but EPA only mentioned the legal proceedings “in passing,” the court said. EPA's delay notice said it intended to put the rules on hold “until the proceedings for judicial review are completed or the EPA completes its reconsideration of the rules, whichever is earlier.”
But the court said EPA's delay notice needed to tie the stay directly to the ongoing court case and it did not. “The purpose and effect of the delay notice plainly are to stay the rules pending reconsideration, not litigation.”
EPA said that without a stay on the rules, investments made by industrial sources to comply with the standards as finalized may not be recoverable.
The court said while it acknowledges that “vacating the delay notice likely will have an effect on industry facilities throughout the country: they will finally, more than 12 years after a clear congressional mandate, have to comply with overdue Clean Air Act emission standards.” Upholding EPA's administrative stay “could have significant deleterious effects on the environment,” the court said.
The court's decision reinstates the compliance deadlines set in the final rule, which require owners and operators of existing sources to install MACT to meet the standards three years after the rule was published on 21 March 2011. Owners and operators of existing facilities that were required to meet best practice standards and perform tune-ups must comply with the rules by 21 March 2012.
EPA proposed changes to the rules in December 2011 that it said increases “the flexibility, consistency and achievability of these standards.” Public comments on that proposed rule are due on 21 February.
Industry sources have been lobbying Congress to legislatively overturn or put the boiler MACT rules on hold. Several bills attempting to do so have passed through the Republican-led House but did not reach the floor of the Senate.
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