Date: August 12, 2011
Source: News Room
Environmental groups including the Sierra Club are urging a federal district court to grant summary judgment to vacate EPA's stay of its air rules for boilers and incinerators which could force the EPA to implement them despite a stay on the lawsuits issued by a federal appeals court. EPA earlier this year used Administrative Procedure Act (APA) authority to delay implementation of the air rules until it completes a rare self-initiated review of the regulations. The agency said it needed more time to address industry and other critics' concerns about major flaws in the rules that make them unachievable, among other problems. The appeals court in an Aug. 3 order put on hold, or in abeyance, the various consolidated lawsuits over the agency's boiler maximum achievable control technology (MACT) air toxics rule until EPA completes its reconsideration. As a result, Sierra Club recently filed a lawsuit in the U.S. District Court for the District of Columbia challenging EPA's stay, saying it exceeds the agency's authority under APA and the Clean Air Act. If the district court agrees, EPA would be forced to implement the rules even as it reconsiders them.
EPA likely will ask the district court to dismiss the suit by claiming that the correct venue for hearing a challenge is in the appeals court, though environmentalists also reject that argument. The agency has said in its appeals court filings that it intends to issue proposed revised rules by Oct. 31, with final rules following in April 30, 2012. The final boiler and CISWI rules would have taken effect May 21, 2011, though that date is no longer applicable pending the agency's indefinite reconsideration of the rules. Vacating the stay would effectively put the rules back in effect as they were finalized in March. Industry would then face a March 21, 2014 deadline to install pollution controls to meet the emissions limits, with the risk of enforcement actions if it fails to do so.