Appeals Court Reinstates EPA’s Boiler Clean Air Rule

WASHINGTON, DC, January 10, 2012 (ENS) – The DC Circuit Court of Appeals has rejected the U.S. Environmental Protection Agency’s administrative stay on a rule that sets air toxics standards for boilers and commercial solid waste incinerators.

In March 2011, the EPA published maximum achievable control technology, MACT, standards for emissions of mercury and air toxics standards for boilers. The final rule was issued on May 18, 2011. But almost immediately, the agency issued a notice of delay and began to reconsider the rule after affected industries complained that the standards were too onerous and would hurt their competitiveness.

The Sierra Club in July petitioned the appellate court for review of EPA’s delay notice.

Judge Paul Friedman ruled Monday that the EPA’s “delay notice” on the rules was “arbitrary and capricious,” and vacated the delay.

The ruling reinstates the industry’s obligation to comply with the so-called Boiler MACT rules.

The EPA had been under court order to issue the final rule after the agency was found to have missed a Clean Air Act deadline for setting MACT standards to control air toxics from the industry.

But EPA officials said the agency had received new information from industry sources after the rule was proposed that indicated the standards should be changed.

Hoppers feed biomass fuel into the furnace boiler at Avista Utilities’ 25-year-old Kettle Falls Generating Station in Kettle Falls, Washington. (Photo courtesy Avista Utilities)

On December 2, 2011, the EPA issued a revised rule that agency officials said is 50 percent less costly for industry than the original proposal, while still meeting the requirements laid out in the 1990 Clean Air Act amendments.

EPA’s revised changes for boilers include additional subcategories, new emission limits and increased flexibility in compliance monitoring for meeting particle pollution and carbon monoxide limits. The agency also revised emission limits on incinerators, including those for dioxin and mercury.

The EPA said it would finalize the reconsideration in spring 2012, following 60 days for public comment.

However, Judge Friedman’s ruling reinstates the compliance deadlines set in the final rule, which require owners and operators of boilers and incinerators to install maximum achievable control technology to meet the standards three years after the rule was published on March 21, 2011.

Owners and operators of existing facilities required to meet the best practice standards must comply with the rule by March 21, 2012.

In response to the decision, National Association of Manufacturers Vice President for Energy and Resources Policy Chip Yost said, “The court’s ruling to revoke the stay of the boiler MACT and incinerator rules will severely harm manufacturers’ competitiveness, add to their uncertainty and cost vital jobs.”

“It is already 20 percent more expensive to manufacture in the U.S. compared to our trade partners, and regulations such as Boiler MACT continue to set us back,” said Yost.

American Forest & Paper Association President and CEO Donna Harman said in a statement, “Judge Friedman’s decision to invalidate EPA’s stay of the boiler MACT and incinerator rules jeopardizes jobs at a time when the economy can least afford it.”

Both industry associations have been lobbying Congress to pass legislation that would overturn or put the boiler MACT rules on hold. Several bills attempting to do so have passed through the Republican-dominated House but did not reach the floor of the Senate.

“This ruling reinforces the urgent need for prompt congressional passage of the EPA Regulatory Relief Act,” said Harman. “The legislation will provide EPA with the time it needs to fully analyze and prepare a new rule. It will also provide the critically-needed legal and business certainty to avoid putting tens of thousands of manufacturing jobs at risk.”

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