Ryan Whaley Coldiron Shandy

On December 19, 2008, the D.C. Circuit Court of Appeals vacated the startup, shutdown, and malfunction exemption to the “emissions standards” governed by Section 112 (generally referred to as the Maximum Achievable Control Technology or “MACT” standards). Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008). The court’s decision turned on Congress’ mandate that “emission standards” for hazardous air pollutants under Section 112 – in contrast to the emission limits for sources under Section 111 – required “continuous” limits on emissions. Please click here to find the federal court’s opinion: http://pacer.cadc.uscourts.gov/common/opinions/200812/02-1135-1154946.pdf.

How the removal of the SSM exemption under Section 112 plays out has yet to be decided. The vacatur has not yet taken effect, and will not until the federal court issues a mandate. But recent events indicate that changes are on their way. On July 22, 2009, EPA issued guidance explaining how the court’s decision will affect specific source categories. A link to the EPA Guidance Document is provided on this page.

On July 30, 2009, the federal court denied the petitions for rehearing. In response, EPA and intervenors filed motions asking the court to stay its mandate. The responses to the motions to stay the mandate are due August 20, 2009.