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EPA Issues Stay of Boiler MACT rule

05/18/11

Source: SOCMA
Related Topics: US Environmental Protection Agency

On May 16, EPA announced that it was issuing a stay postponing the effective date of the Boiler MACT rule (as well as the solid waste incinerator – CISWI – rule).  More specifically, EPA wrote that it is delaying the effective date of those final rules “…until such time as judicial review is no longer pending or until the EPA completes its reconsideration of the rules, whichever is earlier.”(The Stay was published in the Federal Register on May 18.)

The rule had been set to go into effect May 20.  (The boiler rule for area sources still goes into effect on that date.) The agency has now stated that it will accept additional data  and information on these standards until July 15, 2011.

EPA’s Reasoning

The Agency noted that it was taking this action under the authority of the Administrative Procedures Act (APA), rather than under the Clean Air Act.  The relevant section of The APA states that “an agency ... may postpone the effective date of [an] action taken by it pending judicial review.” The provision requires that the Agency find that justice requires postponing the action, that the action has not gone into effect, and that litigation is pending.

  • Clearly, neither the Major Source Boiler MACT nor the CISWI Rule has gone into effect and petitions for judicial review of both rules have been filed, meeting those two conditions.
  • Regarding the justice requirement, EPA wrote

    We find that justice requires postponing the effectiveness of these rules. As explained in the March 21, 2011, [reconsideration] notice, EPA has identified several issues in the final rules which it intends to reconsider because we believe the public did not have a sufficient opportunity to comment on certain revisions EPA made to the proposed rules. … In addition, EPA received data before finalizing both rules but was unable to incorporate that data into the final rules given the court deadline for issuing the rules, which the Agency was unable to extend. EPA also notes thousands of facilities across multiple, diverse industries will need to begin to make major compliance investments soon, in light of the pressing compliance deadlines. These investments may not be reversible if the standards are in fact revised following reconsideration and full evaluation of all relevant data.

In contrast to the APA, the Clean Air Act “authorizes the EPA to stay the effectiveness of a rule for three months if the Administrator has convened a proceeding to reconsider the rule.”   The agency added that it “has the discretion to decide whether it is appropriate to delay the effective date of a rule under either provision, based on the specific facts and circumstances before the Agency. Since petitions for judicial review of both the Major Source Boiler MACT and the CISWI Rule have been filed, and…  justice requires a delay of the effective dates, it is reasonable for the EPA to exercise its authority to delay the effective dates of the Major Source Boiler MACT and the CISWI the CISWI Rule under the APA for a period that exceeds three months.”







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