EPAs Cement Kiln Ruling May Trigger Larger Debate on Agency's Authority to Self-Initiate a Reconsideration of Its Rules

From InsideEPA.com (subscription required) Excerpt follows;

EPA's recently released rule to control air toxics from cement plants includes a first-time notice of reconsideration that legal experts say may be unlawful because it could allow the agency to circumvent a court order that required the agency to issue the rule.

An environmentalist also notes that the Clean Air Act provides no authority for EPA to self-initiate a reconsideration of its rules.

If successful, EPA could employ the strategy in future rulemakings where it is required to meet court-ordered deadlines but wants to provide a way to give agency staff more time to review -- and possibly alter -- requirements contained in the final rule, these sources say.

In this case, EPA had to finalize a maximum achievable control technology (MACT) rule for Portland cement plants by Dec. 8, according to a consent decree imposed by the U.S. Court of Appeals for the District of Columbia Circuit. The rule has been subject to years of litigation, and the court remanded it back to the agency because it failed to include mercury requirements. The agency never acted on the remand, and environmentalists went back to court last year to impose the deadline.

In the final rule, EPA set a numeric mercury limit for new cement kilns and is also requiring that existing facilities ban the use of fly ash as a feedstock if purchased from utilities that use sorbent to control for mercury, because that increases the mercury content in the fly ash. The partial fly ash ban was suggested by the cement industry at an 11th-hour meeting with White House and EPA officials, even though the ban was formally opposed by the coal waste industry in their comments on the rule.

But at the same time, the agency is proposing to reconsider both of those issues, as well as the limit it set for total hydrocarbons at new plants in the final rule.

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