EPA responds to court decision ending stay on MACT rules

By Luke Geiver | January 19, 2012

The U.S. EPA has responded to a recent court ruling that vacated the agency's stay on its Maximum Achievable Control Technology rules.

“After an initial review of the court’s decision, EPA is not aware of any sources that might be adversely affected,” said Gina McCarthy, assistant administrator for the EPA Office of Air and Radiation, in a statement.

While the EPA will continue to work with permitting authorities and industry members on the boiler MACT rule, initially issued in March 2011 and later halted through a stay provision issued by the EPA in May 2011, McCarthy also said the agency will soon issue a no action assurance letter to those affected by the MACT rules. EPA will not enforce any of the administrative notification requirements in the old rules for a period of time, while it works to finalize the rules by the spring of this year, according to McCarthy. The most recent revisions were issued Dec. 23.

In a letter to Senator Ron Wyden, D-Ore., EPA Administrator Lisa Jackson expanded on the explanation provided by McCarthy. “To the extent sources may be concerned about civil action by parties other than the EPA, please note that noncompliance with notice provisions that we have proposed to amend would be unlikely to warrant such action,” Jackson wrote. “In the event that a party does seek to bring such an action they must give the EPA and the source 60 days advance notice of their intent to do so, which would give the EPA sufficient time to take more definitive steps to address any such impacts from the lifting of the stay.”

McCarthy said the EPA still looks forward to finalizing the rules later this year, noting that the agency intends to keep the health benefits of the original rules, while reducing the cost of compliance to industry. “The standards would focus on the less than one percent of boilers that emit the majority of pollution from this sector,” McCarthy said.

Jackson said there is no reason to believe the EPA will face additional court actions prior to finalizing the rule, and the  agency has the tools to address any possible actions. Those tools include the no action notice letters, or the issuance of a 90 day stay made possible through the Clean Air Act if a source faces compliance issues. The EPA could also issue a longer stay under the Administrative Procedures Act, consistent with the court’s opinion.

The EPA Regulatory Relief Act, HR 2250, which would provide the EPA with additional time to fully analyze and prepare a new set of MACT rules and provisions, is still making its way through Congress.