Federal Court Rejects EPA Delay of Boiler Emissions Rules as Unlawful

Date: January 10, 2012

Source: News Room

A federal court has ruled that the US EPA acted unlawfully last year when it delayed the enforcement of air pollution rules for industrial boilers and incinerators. The decision by US District Court Judge Paul L. Friedman, who called the delay “arbitrary and capricious,” creates uncertainty for manufacturers, chemical plants, refiners, and other industrial facilities that use boilers to generate heat or electricity. The EPA had finalized the rules under court order last February, but then said it would delay them while it made changes. The Sierra Club filed suit (“Sierra Club v. EPA”) arguing that EPA lacks authority to issue an indefinite stay under the Clean Air Act since section 307(b) of the law limits stays to three months, and because the stay violates the Administrative Procedure Act (APA) since EPA did not seek notice and comment on the stay before issuing it earlier this year. The ruling also reinstates the March 21, 2014, compliance date for the rules.

The air pollution rules in question include national emission standards for hazardous air pollutants for major source boilers, new source performance standards for commercial and industrial solid waste incinerators (CISWI) and a non-hazardous secondary materials (NHSM) rule to determine whether facilities are subject to the boiler or stricter CISWI rules based on the material burned in the unit.

EPA later stayed the rules to give it more time to consider industry comments and address criticism that the rules were unachievable and based on faulty data, Last month, the agency promulgated proposals to soften the rules by providing greater flexibility for industry at a lower cost than the previously finalized versions. The agency said that under the revised rules, only 1 percent of all boilers, or about 5,500 boilers, would be affected and that the rest are already in compliance or could do so with routine maintenance.

The EPA has said it expects to complete its revision/reconsideration of the boiler and CISWI rules by April 30. Revisions to the rule are currently open for public comment.

American Forest & Paper Association President Donna Harman said the decision “jeopardizes jobs at a time when the economy can least afford it” and said it “reinforces the urgent need for prompt congressional passage of the EPA Regulatory Relief Act.” H.R. 2250 and S.B. 1392 would delay implementation of the boiler rules at least 15 months.

“I just can’t imagine Congress not now acting given what’s going on here,” said Robert Cleaves, president of the Biomass Power Association, referring to the legal wrangling over the rule. The association’s members use boilers to make electricity from wood waste and other materials. He said his trade group was “looking at all avenues of appeal” of the court decision. According to the Biomass Power Association, biomass power is a $ 1 billion industry with 80 facilities in 20 states.

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