Boiler MACT Status Update

The EPA’s Boiler MACT rules were reconsidered and stayed after their publication in March 2011. This article provides analysis of the federal court case that overturned the stay, and details on the EPA’s reconsidered rules which are now available for comment.

Background

In March of 2011, the EPA published final rules titled "National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters" and "Standards of Performance for New Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units," commonly known as the Boiler MACT and CISWI rules.

At the same time final rules were issued, the EPA announced that it would "reconsider" certain aspects of the boiler and commercial/industrial solid waste incinerator (CISWI) rules in order to fully address technical issues raised during the comment period.

On May 18, 2011 the EPA announced it would delay the effective date for the Boiler MACT and CISWI rules until the proceedings for judicial review of the rules are completed or the EPA completes its reconsideration of the rules, whichever is earlier.

Reconsideration

On December 2, 2011, the EPA proposed amendments to the standards regulating the emissions of hazardous air pollutants (HAPs) from new and existing boilers and process heaters, as well as Commercial and Industrial Solid Waste Incinerators (CISWI). The EPA also proposed revisions to the Non-Hazardous Secondary Material (NHSM) Rule. The proposal is a reconsideration of certain provisions of the final Boiler MACT rule and other final rules issued on March 21, 2011. The EPA announced its plans to reconsider the rules at the same time the final rules were issued.

The EPA is proposing the following changes, among others, in the reconsideration of the rule for boilers and process heaters at major sources: creating new subcategories; setting new limits for particulate matter (PM) and carbon monoxide (CO); replacing emission limits for dioxins/furans emissions with work practice standards; increasing compliance monitoring flexibility; revising standards for units outside the continental U.S.; and providing more flexibility and achievability for units burning clean gases.

Proposed revisions to the area source rule include, among others, the creation of a new subcategory for seasonally-operated boilers and an exemption for temporary boilers.

The EPA also issued proposed revisions to the New Source Performance Standards (NSPS) for Commercial and Industrial Solid Waste Incineration Units (CISWI rule) and the rule defining what is a non-hazardous secondary material (NHSM Final Rule) for purposes of determining whether a unit is covered by the CISWI rule or the Boiler rule.

Comments on the proposed rules are due by February 21, 2012. The EPA intends to finalize the rules this April.

Federal Court Vacates Boiler MACT Stay

The EPA was required by a court to finalize the Boiler MACT standards in 2011, but almost as soon as the new rules were released, the EPA began the reconsideration process discussed above. The EPA stayed the rule during the reconsideration, but the stay was challenged in the ongoing Sierra Club v. Jackson case.

On January 9th, the United States District Court for the District of Columbia vacated the EPA’s May 20, 2012 effective date of revised hazardous air pollution standards for boilers and incinerators while the agency undertakes a process of reconsideration of the final rule. Among other things, the court held that the EPA had used the wrong legal standard when it decided to issue the Delay Notice.

The court determined that the EPA should have used four-part test for determining whether the stay should have been issued. According to the court, the EPA should have considered: (1) whether there was a likelihood of success on the merits in challenging the Boiler MACT and CISWI Rules; (2) whether industry would be irreparably harmed if the stay were not issued; (3) whether a balancing of equities supported granting of the stay; and (4) whether the public’s interest would be served by a stay. The EPA instead relied on a finding that “justice so requires” issuing the stay since the rules were already being reconsidered.

The court’s vacatur of the stay means the original deadlines and requirements in the Boiler MACT and CISWI Rules apply immediately.

Implementation

Although the EPA’s stay of the Boiler MACT rules was vacated, the agency has stated it will not to enforce those standards immediately. In a letter to Sen. Ron Wyden (D-OR), EPA Administrator Lisa Jackson made clear that the EPA will not take actions to enforce the standards that the court reinstated.

"Regarding the impact of the recent court decision, we have carefully reviewed the effect that vacating the stay may have on new and existing sources and plan to address potential impacts. Specifically, using our enforcement discretion, the EPA will issue a no action assurance letter shortly, informing sources that EPA will not enforce any of the administrative notification requirements for new or existing boilers and incinerators in the 2011 Rules for a period of time while the EPA works to take final action on the proposal to reset these dates. For existing boilers and incinerators, these administrative notification requirements are the only obligations sources would otherwise have under the 2011 Rules prior to when the EPA intends to finalize the reconsideration process….

With respect to new boilers and incinerators, based on the information currently available, it appears that there are no sources that are subject to requirements other than administrative notifications under the 2011 standards that are being reconsidered. If, however, the EPA becomes aware of any such sources facing permitting or compliance challenges as a result of the stay being vacated, the EPA will issue a 90day stay of the rule under the Clean Air Act. Furthermore, if necessary, the EPA will issue a longer stay under the Administrative Procedures Act consistent with the court's opinion or take other such action as may be appropriate."

Additional information on the boiler rules is available on the Great Lakes Legal Foundation boiler rules webpage.

This post was authored by GLLF staff attorney Emily Kelchen.