Energy Law

EPA Denied Extension to Promulgate Boiler MACT Rule

By Kelly Becker

By: Megan J. Spencer

EPA first issued its Boiler MACT Rule on September 13, 2004. However, these standards were vacated by the United States Court of Appeals for the District of Columbia Circuit after the Court found EPA's definition of 'commercial or industrial waste' conflicted with the language of the Clean Air Act in NRDC v. EPA, 489 F. 3d 1250 (D.C. Cir. 2007). The deadline for EPA to issue its Boiler MACT Rule was judicially imposed on EPA in Sierra Club v. Johnson, 444 F. Supp. 2d 46 (D.D.C. 2006), requiring EPA to fulfill its statutory duties of promulgating emissions standards by June 15, 2009. However, the United States District Court for the District of Columbia granted several unopposed motions to extend this deadline for the Boiler MACT Rule, resulting in an eventual deadline of January 21, 2011. EPA requested another extension of this deadline through April 13, 2012, but this request was opposed by the plaintiff, the Sierra Club.

EPA argued that it needed a fifteen-month, or alternatively a five-month, further extension of the January 21, 2011, deadline because: (1) in light of the comments received after the proposed rules, EPA must re-propose the rules to ensure that the final rules are a logical outgrowth of the proposed rules; and (2) in the alternative, EPA needs a five-month extension to fulfill its statutory duty of responding to all significant comments. However, the court agreed with the plaintiff that EPA had failed to satisfy the impossibility standard for the setting of emissions standards within the previous deadline set by the court. Thus, the court denied EPA's request for an extension until April 13, 2012 so that EPA could re-propose the rules before issuing the final rules. The Court also denied the five-month extension requested by EPA to respond to all comments and instead gave EPA one-month to promulgate its Boiler MACT Rule finding that EPA had not provided sufficient evidence on why it needed five months to respond to comments it had already began reviewing.   

Although EPA argued to the District Court that it wanted an extension to re-propose the rules including another round of public comment, EPA submitted the final rules to the White House Office of Management and Budget for review on January 21, 2011, the same day the court denied the request for an extension. www.nytimes.com/gwire/2011/01/21/21greenwire-with-extension-denied-epa-sends-boiler-rules-t-75622.html 

It is likely that EPA will use section 307(d)(7)(B) of the CAA for administrative reconsideration of the rules without postponing the effectiveness of the rules. 42 U.S.C. § 7607(d)(7)(B). Additionally, because of the far reaching nature of the Boiler MACT Rule, it is also possible that the rules could face judicial challenges. 

Congress has also indicated that it may get involved in EPA's deadline to promulgate its Boiler MACT Rule. At a January 26 hearing of the House Energy & Commerce Committee, Rep. Fred Upton (R-MI) offered to advance legislation that would provide EPA with more time to issue its final Boiler MACT Rule. 

See full opinion at: Sierra Club v. Jackson, No. 01-1537, 2011 U.S. Dist. LEXIS 5316 (D.D.C. Jan. 20, 2011). 

Full post as published by The Energy Law Blog on February 03, 2011 (boomark / email).