by Maureen N. Harbourt

In June, we reported that a three judge panel of the District of Columbia Court of Appeal had issued a decision in NRDC v. EPA, Docket 04-1385, to vacate both the Commercial and Industrial Solid Waste Incineration (“CISWI”) Unit Rule and the National Emission Standard for Hazardous Air Pollutants Rule for Industrial, Commercial, and Institutional Boilers and Process Heaters (the “Boiler MACT”).  That report indicated that the court’s decision could be stayed by a timely request for hearing or a stay order. 

The deadline to request a rehearing expired on July 23,2007, and the deadline to request a stay expired July 30, 2007. As no party requested a rehearing or a stay by those deadlines, the clerk of court issued the mandate to EPA on July 30, 2007. The mandate directs EPA to vacate the Boiler MACT and the CISWI Rule and to take further action consistent with the court’s opinion. EPA will publish a notice in the Federal Register, which will take a few weeks; but, that is a formality to notify the public that the rules are vacated.  As noted in the original opinion, the court both vacated and remanded the rules to EPA for further action. The court will control the schedule and review of EPA activities to correct the deficiencies in the rule. For now though, the Boiler MACT rule is gone.