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Court Lifts Stay of Boiler MACT rule

01/10/12

Source: SOCMA
Related Topics: Clean Air Act (as Amended)

Late yesterday, a D.C. District Court Judge issued a ruling which vacated EPA’s stays of the Boiler MACT and CISWI rules. 

(EPA had stayed the Boiler MACT rule in May 2011 through the end of the reconsideration process, but did not stay the Boiler GACT rule.  This court ruling overrules that earlier stay and means that the Boiler MACT rule is now back in effect.)

In its ruling, the D.C. District Court confirmed  that it had jurisdiction over the litigation challenging the stays, and then addressed the three claims raised by the Sierra Club:

  1. The Sierra Club had argued that section 307(d)(7)(B) of the Clean Air Act (which authorizes EPA to issue a three-month stay pending the reconsideration) precludes EPA from issuing a stay under the Administrative Procedure Act (APA) section 705.  The Court rejected that claim. 
     
  2. The Court also rejected Sierra Club’s claim that the stays are APA rules requiring notice and comment. (The Court found that the stays are not substantive rulemakings, essentially agreeing with EPA’s characterization of the stays as “temporary devices” designed to maintain the status quo.)
     
  3. However, the Court agreed with Sierra Club’s claim that the stays are arbitrary and capricious.  Additionally, the Court rejected EPA’s request to avoid the remedy of vacating the stays by simply remanding them to the agency.  (The Court expressed doubt that EPA would be able to justify a decision on remand to stay the Boiler MACT and Incinerator rules.)

While the Court acknowledged EPA’s point that thousands of industrial facilities may need to begin compliance investments soon, and those investments might not be reversible if the standards are revised, the Court focused on EPA’s statement that the final rules “reflect reasonable approaches consistent with the requirements of the Clean Air Act.”  The Court also noted that upholding the stays could have significant deleterious effects on the environment.   

It now appears that the requirement to notify EPA if you are operating a boiler or incinerator is back in place, and new sources (those build since June 4, 2010)  must be in compliance with the March 2011 limits (even though those limits are changing.)

This decision also seems very likely to reinvigorate the push for passage of a legislative stay on Capitol Hill.  (Legislation to stay the boiler rules passed the House last fall, but has not advanced in the Senate yet and was not included in final appropriations legislative language which passed last year.) 







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