Status of Boiler MACT Up in the Air

Friday, January 13, 2012

EPA recently proposed changes to the Areas Source Boiler GACT, Boiler MACT, CISWI and Non-Hazardous Secondary Material (“NHSM”) rules.  All these rules were originally published last March under a deadline established by court order, and then stayed by EPA when the court refused to give EPA more time to develop the rules.  (For more information on these rules, see our March 4, 2011 Alert here.)  The recent publication of these proposed amendments to the rules coincides with yet another court decision, this time vacating EPA’s decision to stay them in the first place.

Before the EPA comment period on the amendments closes on February 21, 2012, boiler owners/operators should review the proposed changes to determine the potential impacts, identify any compliance challenges, and determine if your facility burns any materials that would no longer qualify as a fuel.  These rules have been highly controversial and contested, and therefore it is essential that affected facilities continue to provide feedback to EPA during the comment period.  

EPA’s proposed changes to the rules and the D.C. Circuit Court decision to vacate EPA’s stay are summarized below.

EPA Proposes Changes to Boiler GACT, Boiler MACT, CISWI and NHSM Rules

Area or Minor Source Boiler GACT Rule.  On December 23, 2011, EPA published in the Federal Register proposed amendments to the Area Source GACT rule as follows:

  • Create additional subcategories and require initial compliance tune-ups after 2 years instead of after the first year.
  • Require seasonal operators to conduct tune-ups every 5 years after the initial tune-up, instead of every other year.
  • Clarify on applicability and implementation issues. 

Boiler MACT Rule.  EPA also proposed changes to the Boiler MACT Rule, including:

  • Create new subcategories for light and heavy industrial liquids.
  • Establish new emission limits for particulate matter that are different for each solid fuel subcategory.
  • Establish new emission limits for carbon monoxide.
  • Allow alternative total selective metals emission limits instead of using PM as a surrogate.
  • Replace numeric dioxin emission limits with work practice standards.
  • Increase flexibility and compliance monitoring.

CISWI Rule.   EPA’s proposed changes to the CISWI Rule include:

  • Revise monitoring requirements.
  • Revise emission limits for waste burning kiln and energy recovery units.
  • Remove oxygen correction requirements for CO during startup and shutdown for energy recovery units.
  • Clarify of definitions and applicability.

NHSM Rule.   EPA proposed changes to the NHSM Rule, including:

  • Clarify the scope of materials considered “biomass” that are considered a traditional fuel.
  • Add a process for an owner or operator to petition EPA to categorically list a NHSM as being a non-waste when used as a fuel.
  • Specifically list resonated wood products and certain tire-derived fuel as non-wastes when used as a fuel.
  • Revise the legitimacy criteria to allow comparison of groups of contaminants and clarifying that contaminant comparisons may be made for any traditional fuel for which a combustion unit is designed to burn. 

Court Vacates EPA Stay of Boiler MACT and CISWI Rules

As noted above, EPA originally issued the Boiler MACT and CISWI Rules on March 21, 2011, pursuant to a court-ordered deadline.  Because the court had refused to grant EPA more time, shortly thereafter, EPA issued Administrative Stays of these two rules which, among other things, had the effect of staying the trigger for submission of initial notifications due under the rules and delayed start of the 3-year compliance clock for the rules.  The DC District Court, however, issued a new decision on January 9, 2012, to vacate EPA’s stay of the rules. 

The court’s latest action raises questions regarding whether facilities with affected boilers must now submit initial notifications and what the final compliance deadlines may be.  New or reconstructed facilities face the questions of whether the court’s decision means that immediate compliance with the rules is required.   EPA, for example, has stated it does not believe that the court’s action will affect any sources.  In Maine, however, Section 6(B) of Chapter 140 seems to require Part 70 facilities with at least three years before their next license renewal to file new applications with DEP within 6 months of the promulgation of any new HAP rule.  This means that facilities in Maine may be required to apply for coverage under the current Boiler MACT and CISWI rules, without having the benefit of EPA’s proposed amendments.  This obviously would create substantial practical problems, and should be considered carefully.

If you have any questions or need additional information about these developments, please do not hesitate to contact Dixon Pike (207-791-1374 or dpike@pierceatwood.com) or Brian Rayback (207-791-1188 or brayback@pierceatwood.com).