Date: January 17, 2012
Source: News Room
Last week a federal district court vacated and remanded EPA's indefinite stay of its controversial boiler and incinerator air rules after finding the agency failed to adequately justify the delay. It is a victory for activists since the rules are again in effect though EPA is slated to amend them in April, well before they take effect as early as 2014. Although the court found the stay of the combustion rule package to be unlawful in this case, the ruling suggests EPA could issue such a stay in the future if it follows the right procedures.
In his Jan. 9 opinion, Judge Paul Friedman of the U.S. District Court for the District of Columbia ruled that the agency's self-imposed stay of the air rules is unlawful because the agency did not meet a previously established four-part test for a stay that it was bound to use. He called EPA's stay "arbitrary and capricious" and said the agency erred in failing to base its stay on pending legal challenges to those rules, as required under section 705 of the Administrative Procedure Act (APA). The ruling means that EPA's boiler air toxics rule and a related emissions rule for commercial and industrial solid waste incinerators (CISWI) are once again in effect, though existing facilities do not have to comply with the rules until 2014 or 2015 at the earliest. As such, it is expected to have little short term effect given the 2014-2015 compliance date, and EPA has announced plans to revise and delay those deadlines to 2015 or 2016.
Activist group Earthjustice said the court rejected EPA's "attempt to suspend health protections against the toxic pollution from industrial boilers. . . . The health protections will save thousands of lives every year by reducing the major amounts of toxic air pollution such as mercury, lead, arsenic, and chromium that these plants emit." But the American Forest & Paper Association (AF&PA), suing over the merits of the rules in the U.S. Court of Appeals for the District of Columbia Circuit, issued a statement saying the ruling reinforces the need to pass legislation delaying the rules in order to give EPA time to "fully analyze and prepare a new rule." That view is shared by House Energy and Commerce Committee Chairman Fred Upton (R-MI), who said in a statement the same day that the Senate should pass the bill "so we can put an end to the uncertainty and finally get the EPA to move forward in a way that protects jobs."
EPA issued the final boiler and CISWI rules in February 2011, alongside an announcement it would reconsider several aspects of the rules to address industry concerns that the rules are unachievable. In May the agency then issued a stay that halted the rules' implementation pending the outcome of either the lawsuit, or the reconsideration, depending on which occurs first. EPA proposed revised versions of the combustion rules in December, and has told the district court in briefs that it intends to issue final versions by April 2012.
Sierra Club and Earthjustice sued over the stay in the district court, saying EPA lacked authority under APA to issue the stay, and also arguing that the Clean Air Act does not allow stays pending reconsideration longer than three months.
See also: "Federal Court Rejects EPA Delay of Boiler Emissions Rules as Unlawful," (www.wasteinfo.com/news/wbj20120110A.htm).
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