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A On June 8th, the DC Court of Appeals vacated the National Emissions Standards for Hazardous Air Pollutants for Industrial, Commercial, and Institutional Boilers and Process Heaters (40 CFR 63, Subpart DDDDD, aka "IB-MACT Rule").  This decision was not all that unexpected as EPA had already filed a motion on March 26, 2007 to partially vacate the rule because of issues associated with the establishment of the MACT emissions floor.  However, the rule was vacated not because of EPA's motion but because of a related decision pertaining to the New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units (aka "CISWI Definitions Rule").  In NRDC (et al) v. EPA and the Coalition for Responsible Waste Incineration, the court ruled that EPA's definition of "commerical or industrial waste" was inconsistent with the language in Section 129 of the Clean Air Act.  As a result, many of the boilers now affected by IB-MACT will be reclassified as CISWI units, which will substantially reduce the universe of boilers affected by IB-MACT.  Because IB-MACT will need to be significantly altered to address these changes, the court decided to vacate the rule in its entirety.  The court also indicated that this decision makes EPA's motion for partial vacatur and remand irrelevant.

Despite the court's decision, there may still be opportunity for the existing rule to remain in place.  To address the fact that the ruling would effectively leave both CISWI and industrial units without any federal HAP emissions standards, all involved parties have the opportunity to delay implementation of the ruling by filing a motion to request that the current standards remain in place or to request a reasonable deadline for EPA to establish new emissions standards.  It is almost certain that NRDC will file such a motion.

The situation is quite complicated and introduces significant uncertainty for many sources that are finalizing their compliance strategies before the September 13th deadline.  Given the possibility that the existing rule may remain in place, sources should continue to proceed as if the upcoming compliance deadline were to remain in effect at least until there is a more definitive outcome in this case.

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Last Revised: January 28, 2011