Time is Not on EPA’s Side

The agency is allowed only a one-month extension to rework the final boiler MACT rule.
By Lisa Gibson | January 25, 2011

The U.S. District Court for the District of Columbia has granted the U.S. EPA an extension of only one month for the final release of the Maximum Achievable Control Technology rules, a thoroughly disappointing response to the agency’s request for a six- or 15-month extension.

The agency asked the court for the extra time in December, citing an overwhelming number of public comments on the proposed rules, released in April. The agency made clear that it favored a 15-month extension past the Jan. 16, 2011 deadline, allowing for a reproposal and another comment period. The court first granted an extra five days to mull over EPA’s request, then came back with the final denial and a Feb. 21 deadline.

The MACT rules include standards for area source and major source polluters, as well as commercial and institutional solid waste incinerators. The EPA has an obligation under the Clean Air Act to regulate hazardous air pollutants from those sources and promulgated a rule in 2004 that was later vacated by the U.S. Court of Appeals. Now, in re-issuing the rules, the EPA has been feeling pressure from numerous industries and stalled energy projects waiting for boiler standards.

“We are extremely disappointed with the court’s decision to not grant EPA the 15-month extension they requested,” said Donna Harman, president and CEO of the American Forest & Paper Association. “The extension of one month falls well short of the time requested by the agency to allow a sound rule to be put forth. Regulations such as the Boiler MACT rule have far-reaching implications for communities, workers and businesses across the country. The overriding mission should be to produce a sound rule that keeps Americans healthy and employed, and today’s decision by the court fails to give the agency what it said it needed. [The] decision invites more litigation, and ultimately everyone loses as a result of this short-sighted decision.”

Initially, the extension request brought hope for a new rule that would be less harmful to the biomass power industry. “What it indicates to us is EPA realized they didn’t understand our industry and that they want to take a step back and make sure they got the benefit of all the data that we have been sharing with them,” said Bob Cleaves, CEO and president of the Biomass Power Association, after the EPA announced that it was asking for an extension and before the court ruling. “I think it’s a positive thing that they didn’t just ram a rule through that wasn’t based on what’s going on out there in the real world. That’s a significant thing for us. It’s not just a procedural matter.”

The industry has been loud in its opposition to the proposed rule, which would recategorize a number of multifuel boilers as incinerators, subjecting them to strict standards limiting five hazardous air pollutants—mercury, hydrogen chloride, particulate matter, carbon monoxide and dioxin.

The proposal prompted almost 5,000 comments, some upwards of 300 pages long, expressing discontent and highlighting errors in the fundamental data used to develop it. It sets limits equal to the best-controlled units, but flawed data essentially creates a fictitious super boiler that no one unit can match. “They have to set the limit equal to the best controlled unit that’s in existence,” explains Brian Patterson, associate and senior consultant for Oregon-based Golder Associates Inc. “They don’t have a lot of flexibility on that, but if you’re using bad data, it’s based on half a detection limit instead of an actual detected value. There were just errors in the source tests and things like that.”

Besides updates in the numerical values, other changes Patterson had hoped to see in the final rules included a single set of emission limits, instead of categorizations by boiler type. The system essentially penalizes boiler owners for operating the most efficient and cleanest technology, says Chard Darby, another senior consultant for Golder Associates.

Patterson would liked to have seen a minimum size threshold for compliance for new boilers, much like the 10 million Btu threshold for existing boilers. “You could be a tiny water heater essentially and still be subject to these rules,” he says. “I will be amazed if EPA doesn’t consider that and say we really never intended to regulate these little, tiny boilers with these requirements.”

As of press time, it was unclear what the court’s decision would mean for the final rules, but without enough time for a reproposal, the EPA is limited on the extent of the changes it can make to the currently proposed rules. 

—Lisa Gibson