BOILER MACT UPDATE

Background

After a long illness, the Boiler MACT, and her sister, the Solid Waste Incineration Rule, died on June 8, 2007. A three-judge panel of the District of Columbia Court of Appeal issued a decision in NRDC v. EPA, vacating both the National Emission Standard for Hazardous Air Pollutants Rule for Industrial, Commercial, and Institutional Boilers and Process Heaters (the “Boiler MACT”) and the Commercial and Industrial Solid Waste Incineration (“CISWI”) Unit Rule.

The two rules were addressed in the same appeal, because they are, by statute, mutually exclusive. The CISWI rule was enacted pursuant to Section 129 of the Clean Air Act. Section 129 indicates that any unit regulated under 129 is not to be regulated under Section 112 (i.e., not under the Hazardous Air Pollutant “MACT” rules). Section 129 requires EPA to develop rules for CISWI units using a similar approach as the MACT rules, except that the CISWI Rule applies to any CISWI unit as defined in the rule - not just to units located at major source of HAPs.  In addition, the CISWI regulates criteria pollutant as well as HAPs.  So the CISWI Rule potentially affects a larger set of facilities under Section 129 than it would if developed under Section 112.

At issue in the case was EPA's definition of what constitutes a regulated "CISWI unit." As defined in the rule, a CISWI excludes those units that burn solid waste for any type of energy recovery. That meant thousands of units were excluded from the CISWI rule but would therefore be regulated under the Boiler MACT instead, unless they were not located at a major source of HAP, in which case they would be exempt from regulation altogether. 

A mandate ordering both rules to be vacated was issued on July 30^th, 2007.  After nearly three years of promulgation of the Boiler MACT, many facilities have included these provisions in their Title V Operating Permits.  Despite the vacatur, EPA has suggested that these facilities will remain subject to the MACT requirements under the Title V Operating Permits.  A link to the decision is available at http://www.earthjustice.org/library/legal_docs/court-shuts-down-illegal-epa-incinerator-rule.pdf.

EPA Action Update

EPA sent “Section 114” letters to individual facilities in August of 2008 as part of a broader Information Collection Request to gather data for a new Boiler MACT standard.  EPA is asking facilities which receive the letter and which still have boilers, process heaters, other combustion units, or incinerators in operation to complete a Boilers, Process Heaters, Incinerators and Other Combustion Units Survey.

Documents for the 2008 U.S. EPA Combustion Survey can be found using this attached link http://survey.erg.com/ss/wsb.dll/s/7g8d.  Responses to these surveys are due by October 4, 2008, although because this date falls on a Saturday, the true due date should be October 6, 2008.  Only facilities which receive a Section 114 letter are required to complete the survey.

Other Initiatives

Because the EPA failed to meet its deadline for establishing limits under section 112 of the CAA (or, as is the case with the Boiler MACT, where the Court vacates a rule), state and local permitting authorities are required under section 112 (j) – the “hammer provisions” – to set the limits for the affected facilities on a case-by-case basis. These limits must be based on the use of the Maximum Achievable Control Technology (“MACT”) and may not be less stringent than the MACT floor, defined as the average of the best performing 12 percent of sources in the industrial category.

Because of the potentially significant workload associated with developing MACT limits on a case-by-case basis for the large number of affected sources, and the short deadlines imposed by the CAA for state and local actions, the NACAA Board of Directors authorized the development of this Permit Guidance.  In June 2008, NACAA published Reducing Hazardous Air Pollutants from Industrial Boilers: Model Permit Guidance.   The NACAA guidance document proposes significantly lower emission limits than those established in the now vacated Boiler Mact rule.  Details regarding the guidance can be found on www.4cleanair.org (under “Our Projects”).

Perhaps EPA should consider sending one of those Section 114 letters to NACAA.