EPA asks federal court for extension in industrial boiler final rule
WASHINGTON (Dec. 9, 2010)—The U.S. Environmental Protection Agency has filed a motion with the U.S. District Court for the District of Columbia, asking for an extension of a federal appeals court deadline to promulgate three final rules creating more stringent pollution controls on industrial boilers and solid waste incinerators.
The public interest would be better served if the deadlines for those standards are moved to April 13, 2012, from the current date of Jan. 16, 2011, the EPA argued in the brief filed Dec. 7. The 15-month extension is necessary if the agency is to ensure that the final rules, which are likely to contain significant changes from the proposals issued in April 2010, are a “logical outgrowth” of the proposals as required by legal procedure, the agency said.
The EPA would publish the revised proposals no later than June 1, 2011, according to the motion. The extension would give the agency adequate time to respond fully to all public comments on the proposed rules, it said.
“This is an achievable but very aggressive schedule for a re-proposal,” the EPA said. “These steps would significantly bolster the strength of the final rules and would enable the agency to obtain additional input from the public on three complex, interrelated rules.”
The District of Columbia court ordered the EPA to rewrite its industrial boiler and solid waste incinerator rules in 2006, and the D.C. federal appeals court affirmed that order the following year. The courts agreed with the Sierra Club, the original plaintiff in the case, that the agency violated the plain intent of the Clean Air Act when it regulated certain industrial facilities as industrial boilers that should have been regulated as solid waste incinerators.
This ruling has caused unease in the tire recycling industry, because it said the EPA erred in regulating facilities that burn tire-derived fuel and other alternative fuels as industrial boilers under Section 112 of the Clean Air Act. TDF and other such fuels should be regulated as solid waste under the more stringent Section 129, the courts ruled.
Under the April 2010 proposals, only shredded or otherwise processed TDF would be considered fuel, the industry said. Whole tires used as fuel by cement kilns would be redefined as solid waste, and the additional pollution control requirements would make their use cost-prohibitive, it said.
Charles A. Cannon, president of the Rubber Manufacturers Association, said the RMA is waiting to see how the district court rules and what the final rule looks like.