On February 28, 2014, EPA filed two motions with the D.C. Circuit that further delayed briefing in the suit over EPA’s National Emissions Standards for Hazardous Air Pollutants for Major Sources:  Industrial, Commercial, and Institutional Boilers and Process Heaters (Boiler MACT).   EPA’s first motion sought a partial remand of the rule and its second motion sought a suspension of the briefing schedule until the Court ruled on the remand motion.  In response to EPA’s second motion, the D.C. Circuit issued an order on March 21, 2014 that suspended briefing until further notice.  This delays, for several weeks at minimum, briefing that was scheduled to commence on March 28, 2014.  The D.C. Circuit’s forthcoming ruling on remand issues will dictate the new briefing schedule, which could be delayed many additional months. 

In its remand motion, EPA sought 3 forms of relief:  (1) a 60-day remand of the record to provide further explanation of the upper prediction limit (UPL) variability analysis it used to set numeric emissions standards; (2) remand without vacatur of 30 numeric standards that used the UPL methodology and were based on small data sets; and (3) an adjustment to the briefing schedule that would delay all briefing until the completion of remand. 

Both industry petitioners and environmental petitioners supported some form of remand in their response to EPA’s motion, but neither agreed with EPA’s procedural approach.  Environmental petitioners opposed a remand of the record alone, citing procedural notice-and-comment concerns.  Environmental petitioners instead filed a cross-motion requesting remand without vacatur of all standards that were set using the UPL analysis.   

Some industry petitioners opposed remand of the numeric emissions standards requested by EPA, but requested that the Court vacate the numeric standards in question during remand.  These petitioners also asked that EPA’s remand of the record and vacatur of the numeric standards be addressed together in a new rulemaking that would be severed from the current litigation which would allow briefing to proceed on other issues. Other industry petitioners took no position on EPA’s request to remand certain numeric standards, but supported remand of the record.  All industry petitioners opposed any attempt by EPA to delay all briefing until after remand is complete, citing the looming January 31, 2016 compliance date for existing sources.   

Both EPA and industry petitioners opposed environmental petitioners’ cross-motion for remand of all emission standards.  Industry petitioners opposed any remand that would leave standards in place while EPA conducted a new rulemaking, while EPA argued there was no basis for the expansive relief sought by environmental petitioners. 

The D.C. Circuit’s decision on the full scope of remand and its impacts on the briefing schedule are expected in the coming weeks.  EPA requested a 90-day delay in briefing to complete the record remand, but noted that a new notice-and-comment rulemaking for numeric standards with limited data sets “will take far longer than 90 days.”  A remand of any numeric standards at this juncture could result in significant delays in the complete resolution of the Boiler MACT rule.