WASHINGTON, DC — The U.S. District Court has vacated the “Delay Notice” of the proposed Boiler MACT Rules. In announcing the decision against the Environmental Protection Agency, Judge Paul Friedman gave his opinion that the Delay Notice was "arbitrary and capricious."
In the Jan. 9 ruling in the case between the EPA and Sierra Club, Judge Friedman stated, “The Court acknowledges that vacating the Delay Notice likely will have an effect on industry facilities throughout the country: they will finally, more than 12 years after a clear congressional mandate, have to comply with overdue Clean Air Act emission standards…. Vacating the Delay Notice, therefore, will simply require industry facilities to comply with emission standards that EPA itself states are consistent with the Clean Air Act.”
Although the Court ruled in favor of the EPA on two of the three charges brought before it — whether EPA did in fact provide the public with notice and opportunity for comment before promulgation, and whether the EPA had the authority to issue the Delay Notice — it found in favor of the Sierra Club that "the Delay Notice is arbitrary and capricious," and vacated the stay.
This ruling also reinstates the March 21, 2014, compliance date for the Boiler MACT Rule.
In response to the judgement, American Forest & Paper Assn. President and CEO Donna Harman said in a statement, “Judge Friedman’s decision to invalidate EPA’s stay of the Boiler MACT and Incinerator rules jeopardizes jobs at a time when the economy can least afford it. This ruling reinforces the urgent need for prompt congressional passage of the EPA Regulatory Relief Act. The legislation will provide EPA with the time it needs to fully analyze and prepare a new rule. It will also provide the critically-needed legal and business certainty to avoid putting tens of thousands of manufacturing jobs at risk.”
The EPA has said it expects to complete its revision/reconsideration of the Boiler and Commercial and Industrial Incineration (CISWI) Rules by April 30. Revisions to the rule were announced in December and are open for public comment. Among the changes: the new standards are approximately 50 percent less costly than in the original proposal, and the definition of Non-Hazardous Secondary Material (NHSM) has been changed. In the new standard, resinated wood is now designated as “not a solid waste material when used as a fuel regardless of whether it remained within the control of the generator.”
Congress is also considering legislation, H.R. 2250 and S.B. 1392, which, if passed, would delay implementation of the MACT Rules at least 15 months. Known as the "EPA Regulatory Relief Act," the bills would also allow businesses up to five years to comply.
According to the Biomass Power Assn., biomass power is a $1 billion industry with 80 facilities in 20 states.
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