EPA Moves to Re-Propose Boiler MACT Rules

December 8, 2010

EPA yesterday filed a motion with the D.C. Circuit Court of Appeals to re-propose its controversial set of Boiler MACT Rules. Citing its receipt of more than 4,800 individual comments in response to its proposal, EPA is asking the court in Sierra Club v. Jackson, Case No. 1:01CV01537, to allow it until June 2011 to re-propose the rules, and until April 13, 2012, to finalize the rules. EPA has a long history of difficulty in promulgating these far-reaching hazardous air pollutant regulations, including a 2006 judicial reversal of its initial regulations and court-ordered deadlines for re-promulgation.

EPA had previously been granted until Jan. 16, 2011, to finalize these rules. But EPA’s motion today for the first time acknowledges that the comments raise issues not fully considered by EPA, and also provide substantial new data that raise questions about some of the agency’s initial conclusions. Among those concerns was that EPA had established overly stringent emission limitations that are in some cases two orders of magnitude more stringent than similar European regulations and that are impossible to achieve even with expensive add-on pollution controls.

Industrial boiler manufacturers and boiler owner and operators complained that EPA based its low emission limits on a “franken-boiler” that doesn’t exist. Congress joined the fray, demanding as recently as last week that EPA reconsider the rules’ cost impacts. In what will be reassuring to many of these critics, EPA’s motion states “EPA’s preliminary assessment is that the comments may materially affect important decisions relating to source categorizations and coverage for final emission standards.”

The rules at issue were intended to regulate hazardous air pollutants from industrial, commercial and industrial boilers at “major” and “area” sources, and from commercial and industrial solid waste incinerators (CISWI). Significantly, EPA has not sought to delay finalizing a related rule which distinguishes materials considered “solid waste” which cannot be combusted in boilers, and rather are regulated under the more stringent CISWI rules. EPA also includes in this motion a request for an extension until July 15, 2011, to finalize its proposed “Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Sewage Sludge Incineration Units” known as the SSI rule.