On May 16, 2011, the Environmental Protection Agency (“EPA” or “Agency”) stayed indefinitely the effective date for the controversial final rules, “National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters” (the “Major Source Boiler MACT”) and “Standards of Performance for New Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incinerator Units” (the “CISWI Rule”).  Under Section 705 of the Administrative Procedure Act (“APA”), EPA has delayed the rules until either judicial challenges are completed or the Agency completes its ongoing reconsideration, whichever is earlier. 

EPA issued the Major Source Boiler MACT and CISWI Rule on March 21, 2011 pursuant to a court order.  EPA is required to limit toxic emissions from boilers under the 1990 amendments to the Clean Air Act, which ordered standards to be put in place by the year 2000.  The rules had an effective date of May 20, 2011 and a three-year window of compliance. 

On the same day the rules were issued, EPA also published a notice of reconsideration of certain aspects.  Several industry groups petitioned EPA to stay the rules under either the Clean Air Act, which allows for a three month delay during reconsideration, or the APA, which allows for an indefinite delay when there is a pending judicial challenge to a rule and “justice so requires.”  Some of these same industry groups filed judicial challenges to the rules. 

In issuing its notice to postpone the Major Source Boiler MACT and CISWI Rule, EPA noted that “thousands of facilities across multiple, diverse industries will need to begin to make major compliance investments soon . . . These investments may not be reversible if the standards are in fact revised” and found that “justice requires postponing the effectiveness of these rules.”  The Agency will issue a notice of proposed reconsideration of each rule identifying specific issues for reconsideration and will accept additional information and data from stakeholders until July 15, 2011.