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U.S. Court of Appeals Litigation Schedule Could Derail Boiler MACT Compliance

Posted: February 13th, 2014

Author: All4 Staff 

The ongoing litigation around the Major Source Boiler MACT could potentially put facilities trying to comply with the rule in a very difficult position.  The U.S. Court of Appeals for the District of Columbia (Court) announced the court schedule for litigation on January 31, 2014.  For the Major Source Boiler MACT litigation, the Court has ordered industry and environmentalists to file opening briefs on March 28, 2014.  Final briefs from all plaintiffs and U.S. EPA are due September 9, 2014, which is later than previously requested by interested parties.  After the completion of opening and final briefs, the court will hold oral arguments and issue a final judgment.  This process can take more than a year.  In addition to the Major Source Boiler MACT, the Court also issued the litigation schedule for the Area Source Boiler MACT, Commercial and Industrial Solid Waste Incinerator (CISWI) Rule, and the Non-Hazardous Secondary Materials (NHSM) Rule.

With a decision not expected potentially until mid-2015, facilities that may have chosen to wait until the legal issues were sorted out to implement a compliance strategy will have very little time to comply with the Major Source Boiler MACT requirements by the current compliance date of January 31, 2016.  On the other hand, facilities that are already taking the necessary steps to comply with the Boiler MACT requirements, such as investing millions of dollars to update existing or install new control devices, replacing aging boilers, and converting boilers to natural gas or other “lower polluting” fuels, may find themselves frustrated with the judgment come 2015.  If the Court rules that the rule was not stringent enough or even that the rule was too stringent, facilities will have invested millions of dollars to comply with a rule and emission limits that will no longer be the measure of compliance.

All of this compounds with the fact that U.S. EPA is currently reconsidering the Boiler MACT and CISWI rules. The reconsideration is related to how the emission limits were established.  U.S. EPA expects the reconsideration to be completed by September 2015 at the latest.

All in all, the ongoing Boiler MACT litigation puts facilities that are trying to comply with this rule in a very difficult position.  It adds to the uncertainty around the rule and prolongs the waiting game for a final decision.  Keep checking ALL4’s blog for the latest news on the Boiler MACT legal proceedings.

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