On May 16, 2011, the U.S. Environmental Protection Agency (“EPA”) postponed the effectiveness of new air emission rules for major source industrial boilers and solid waste incinerators that were set to go into effect May 20, 2011. EPA noted that it has received petitions seeking judicial review of both rules and cited its authority under the federal Administrative Procedure Act, and not the Clean Air Act, to postpone the effective date of the rules pending judicial review. Under this latest action, the new rules will not take effect until either the judicial review proceedings are complete or EPA completes its reconsideration of the rules, whichever is earlier.
EPA’s decision to postpone the effectiveness of these rules is the latest twist in EPA’s efforts to develop technology standards for boilers and solid waste incinerators. When EPA released its proposed rules in April 2010, the agency received over 4,800 public comments. EPA issued the final rules in February 2011, after a federal district court denied the agency’s request to postpone their issuance for an additional 15 months, and instead extended an existing court-imposed deadline (originally set at December 15, 2007, and subsequently extended multiple times) to February 21, 2011.
When EPA issued the final rules as discussed in our February 24, 2011 Client Alert, it simultaneously issued a reconsideration notice to address certain standards for which it felt the public did not have a sufficient opportunity to provide comment. While not specifically referenced in the May 16 announcement, a group of trade associations petitioned EPA on April 27, 2011, to stay the effectiveness of the two rules, citing EPA’s authority under both the Clean Air Act and the Administrative Procedure Act. The trade associations noted that the reasons EPA gave for its decision to reconsider the rules, as well as its justification for seeking a 15 month extension from the court, justify the issuance of a stay in order to allow EPA to resolve significant substantive and procedural flaws in the final rules. The associations also expressed grave concern that in the absence of a stay, numerous industrial facilities will undertake significant capital investments in order to comply with the final rules, which investments might be unnecessary to comply with the rules EPA establishes following its reconsideration. Finally, the associations noted that key elements of the final rules will be called into question once EPA reviews the comments and other data that it is likely to receive during the reconsideration process and it would be inappropriate to require industries to adhere to the final rules’ compliance deadlines.
On May 16, 2011, EPA again noted that it had received data before finalizing both rules that it was “unable to incorporate . . . into the final rules given the court deadline for issuing the rules” and, consistent with the associations’ petition, expressed concern that thousands of facilities across multiple industries would soon need to make significant capital investment to comply with the rules, which investment might not be necessary following EPA’s reconsideration of the rules. The agency set July 15, 2011 as the deadline for the public to provide any additional data or information for EPA to include in its reconsideration of the rules.
The postponed rules address hazardous air pollutant (“HAP”) emission standards for industrial, commercial and institutional boilers and process heaters at major source facilities – the Boiler Maximum Achievable Control Technology (“Boiler MACT”) rule - and commercial and industrial solid waste incineration units – the commercial and industrial solid waste incineration units (“CISWI”) rule. Industrial boilers and process heaters burn fuels such as natural gas, biomass, coal and oil to produce heat or electricity; CISWIs burn solid waste.
The postponed Boiler MACT rule has received a significant amount of attention from Congressional leaders, and there continues to be discussions of a legislative fix. This latest action by EPA will allow additional time for that dialogue to continue.
For more information about how these proposed rules may affect your business, please contact one of the authors.