EPA Says it Has Broad Discretion to Delay Boiler MACT

Date: September 1, 2011

Source: News Room

The EPA says it has "broad discretion" to delay rules under the Administrative Procedure Act (APA) as it is urging a federal court to dismiss environmentalists' lawsuit against its stay of rules for boilers and incinerators. The agency says its authority to issue the stay of the boiler and incinerator air rules means that the court should deny Sierra Club's motion for summary judgment and instead grant EPA's Aug. 25 cross-motion for summary judgment to dismiss the suit. In a separate Aug. 25 brief, Sierra Club urges the court to deny EPA's bid to dismiss the suit.

The litigation, originally filed in July, challenges the agency's May 18 notice in the Federal Register to use APA authority to stay implementation of its final boiler maximum achievable control technology (MACT) air toxics rule and an emissions rule for commercial and industrial solid waste incinerators (CISWI). EPA stayed the rules due to a rare self-imposed reconsideration aimed at addressing industry's claims of flaws in the rules that make them unachievable. Sierra Club's suit challenges EPA's authority for issuing the stay, and a win for activists scrapping the stay of the air rules could force the agency to implement the regulations even while the reconsideration continues.

In the more recent Aug. 25 motion, EPA focuses on attacking Sierra Club's claims that the stay is unlawful under APA. The agency says the environmentalists' challenge "falls short" because "the APA grants agencies broad discretion in deciding whether it is appropriate to delay the effective date of an agency action," among other reasons.

See also: "Court Denies EPA Bid to Delay Activist Lawsuit Over Boiler MACT," (www.wasteinfo.com/news/wbj20110823E.htm).

See also: "Activists Urge Court to Force EPA to Implement Boiler MACT," (www.wasteinfo.com/news/wbj20110816A.htm).

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