Date: August 19, 2011
Source: News Room
A federal district court has denied EPA's request to delay proceedings of a lawsuit challenging the agency's stay of its contested boiler and incinerator air rules. The Aug. 15 decision by the U.S. District Court for the District of Columbia also orders EPA to file a motion by Aug. 25 outlining its reasons for opposing Sierra Club's motion for summary judgment in the suit, with Sierra Club's response to EPA's motion to dismiss the suit due the same day.
Sierra Club filed suit in July (Sierra Club v. EPA) over EPA's decision to use Administrative Procedure Act (APA) authority to indefinitely stay implementation of its final boiler maximum achievable control technology (MACT) air toxics rule and a related rule for commercial and industrial solid waste incinerators (CISWI) issued in February. EPA stayed the rule pending an ongoing rare self-initiated reconsideration of the rule to address industry's concerns that the rules are unachievable and based on incomplete and potentially flawed information.
Sierra Club argues that the self-imposed stay is unlawful. Industry groups and others have filed lawsuits in the U.S. Court of Appeals for the DC Circuit challenging the boiler rules, consolidated in the case U.S. Sugar Corporation v. EPA. The appeals court has put that litigation on hold pending the outcome of the agency's boiler rule reconsideration process. The appeals court is also weighing a similar request from EPA to stay consolidated litigation, American Forest & Paper Association, et al. v. EPA, over the CISWI units issued alongside the boiler MACT that EPA is also reconsidering.
Sierra Club says EPA's decision to stay the rules and then have lawsuits over the rules put on hold pending reconsideration "has completely deprived both rules of effect for an indefinite period of time." The district court earlier this year rejected EPA's request to extend by 15 months a Feb. 21 deadline for issuing the final rules package. Sierra Club argues that the stay is "an ongoing affront to this Court's authority," given that the court "unequivocally denied" EPA's request to extend the deadline for the final rules until April 2012.
In a series of Aug. 11 motions, EPA countered that the district court should dismiss Sierra Club's suit, arguing in its motion to dismiss that the appeals court and not the district court is the proper venue for the challenge as the stay of the rules is "not an independent, discrete action, but is an outgrowth of the boilers and CISWI rulemakings." To bolster its case, EPA also argues that Congress through the Clean Air Act said review of such EPA rules is the authority of the appeals court.
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