• EPA Seeks to Delay Final Boiler, Ozone Rules
  • December 28, 2010
  • Law Firm: Barnes Thornburg LLP - Indianapolis Office
  • 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.