A federal appeals court has yet to indicate whether it will
grant a petition from the U.S. Environmental Protection Agency
(EPA) for deadline extensions for issuing final rules regarding the
achievable control technology (MACT) standard for commercial
boilers and incinerators, as well as the new national ambient air
quality standards (NAAQS) for ozone. Deadlines to finalize the MACT
and ozone rules are fast approaching under court orders issued in
litigation related to both rules.
On Dec. 7, the EPA petitioned the U.S. Court of Appeals for the
District of Columbia Circuit for a 15 month extension to finalize
the Boiler MACT rules for commercial boilers and incinerators that
are "major" or "area" sources of hazardous air
pollutants. The petition requests the Court extend the deadline for
issuing final rules from Jan. 16, 2011 to April 13, 2012 because
comments received on the proposed rule calls into question the
accuracy of data relied on by the Agency in establishing the new
emission standards. The EPA also cited concerns about the economic
impact of the proposed regulation on approximately 200,000 boilers
and 175 incinerators that would be subject to the new requirements.
If the Court grants the extension, the EPA is expected to consider
both the breadth of the rules in terms of number of covered sources
as well as whether the proposed emission limits are realistically
"achievable" by commercial boilers and incinerators. It
is expected a portion of the extension period will be used to
provide notice and comment on a new proposed rule. Otherwise, the
agency runs the risk that a significantly revised final rule
promulgated without notice and comment would be vulnerable to
judicial appeal because it would not be the "logical
outgrowth" of an earlier proposed rule.
The EPA also requested an extension to finalize the new Ozone NAAQS
from a December 31, 2010 deadline to July 29, 2011, citing a need
to consult with the Clean Air Scientific Advisory Committee (CASAC)
to address technical questions. In its current form, the EPA's
proposed rule would lower the Ozone NAAQS from 0.75 parts per
billion (ppb) established in 2008 to a range between .60 and .70
ppb. The National Association for Manufacturers claims that the
proposed NAAQS could cost 7.3 million jobs by 2020 and add $1
trillion in new regulatory costs between 2020 and 2030.
Although environmentalist groups including Earth Justice and Sierra
Club have opposed any delay in issuing Boiler MACT rules, it is not
clear yet whether the 14 state coalition that sued EPA to implement
the new ozone NAAQS will object to EPA's request for more time
to issue a final rule. The 14 state coalition, however, has
petitioned the D.C. Circuit Court for an extension of time until
Jan. 10, 2011 to file a response to EPA's request for an
extension of the ozone rule deadline.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.