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Court Vacates EPA Stay of Boiler Air Rules, Little Short-Term Effect

Last week the US District Court for the District of Columbia 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. The ruling is seen as a victory for activists, despite the fact that EPA is slated to amend the rules in April, well before they take effect as early as 2014.

The court’s ruling suggests EPA could issue such a stay in the future if it follows proper procedures.

Judge Paul Friedman ruled that the agency’s self-imposed stay of the air rules is unlawful because the agency did not meet a four-part test that it was bound to use. He 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 should have little short term effect given the 2014-2015 compliance date. EPA has announced plans to revise and delay those deadlines to 2015 or 2016.

The American Forest & Paper Association (AF&PA) 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.” House Energy and Commerce Committee Chairman Fred Upton (R-MI), said 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.

The Sierra Club and Earthjustice had 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.