The US EPA plans to propose a new regulatory backstop requiring States to issue
case-by-case maximum achievable control technology (MACT) limits at facilities should a federal court vacate an EPA sector-based MACT, which could strengthen the EPA's position on when the so-called MACT "hammer" applies. The pending rule, which received White House Office of Management and Budget approval without change, is intended to prevent confusion on when the MACT hammer applies following a legal loss for EPA on an air toxics rule. The MACT hammer requires states to establish individual toxic limits at facilities in the absence of a federal standard.
EPA believes that the rule is necessary because the MACT hammer process is poorly understood by States, which have largely been slow to implement it after courts vacate EPA MACTs. Historically, courts have held a strict interpretation of the Clean Air Act section 112, which states that MACT rules must impose technology-based requirements for each sector representing the average of the best 12 percent of sources.
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