EPA Puts Boiler, Incinerator Rules on Hold During Reconsideration, Legal Challenges

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The Environmental Protection Agency announced May 16 it will postpone implementing new air pollution limits for large industrial boilers and solid waste incinerators indefinitely while it reconsiders portions of the rules and addresses legal challenges.

In a notice announcing delays in the effective dates of the Clean Air Act rules, EPA said the additional time will allow it to solicit public comments and compile additional emissions data.

The rules issued in March set national emissions standards for hazardous air pollutants for major source industrial, commercial, and institutional boilers and process heaters (40 C.F.R. Part 63) and revise new source performance standards for commercial and industrial solid waste incinerators (40 C.F.R. Part 60).

EPA had set an effective date of May 20 for both rules, but now says it will delay implementation until it either completes its reconsideration process or until legal challenges to the standards have been resolved, whichever is earlier. The stay would not apply to EPA's hazardous air pollutant rule for smaller area source boilers, which it also is reconsidering.

EPA will accept additional data on boiler and incinerator emissions until July 15. Comments can be sent to combustionsurvey@erg.com.

The stay will take effect once the notice is published in the Federal Register.

Petroleum Group 'Very Pleased.'

“We are very pleased they recognize the need for this stay and to modify parts of this rule,” Howard Feldman, director of regulatory and scientific affairs at the American Petroleum Institute, told BNA.

API was one of 18 industry groups that petitioned the agency April 27 to put the rules on hold during the reconsideration process (82 DER A-18, 4/28/11).

According to the Sierra Club, which had sued EPA over its failure to issue the rules, the required controls would prevent 4,000 nonfatal heart attacks and 4,300 hospital visits each year.

“Two years ago, the Obama administration took office vowing to protect public health and respect the law,” James Pew, the Earthjustice attorney who represented the Sierra Club in the lawsuits, said in a statement. “Today's action disserves both of these principles. By the EPA's own calculations, the health protections it has elected to delay would save up to 6,500 lives each year.”

Reconsideration Announced in March.

EPA issued the boiler and incinerator rules March 21 but immediately announced it planned to reconsider portions of the standards (76 Fed. Reg. 15,608; 76 Fed. Reg. 15,704; 54 DER A-2, 3/21/11).

The rules require boilers to control emissions of mercury, dioxins, particulate matter, hydrogen chloride, and carbon monoxide. The new source performance standards for solid waste incinerators set emissions limits on mercury, lead, cadmium, hydrogen chloride, particulate matter, carbon monoxide, dioxins and furans, nitrogen oxides, and sulfur dioxide.

EPA said it intended to begin a reconsideration process for portions of the requirements, including additional subcategories for large industrial boilers, work practice standards for major source boilers that have limited use, limits on fuel-switching for industrial incinerators, revisions to the carbon monoxide monitoring requirements for both incinerators and boilers, and particulate matter emissions limits under less stringent, generally available control technology standards for small oil-fired boilers.

Industries Challenge Rules.

Although the stay gives EPA more time to review the rules, industry groups said they are still pursuing legal challenges to the standards.

“We're still looking at reviewing the rule on its merits as well,” Alicia Meads, director for energy and resources policy at the National Association of Manufacturers, told BNA.

API filed a lawsuit May 12 in the U.S. Court of Appeals for the District of Columbia Circuit challenging the hazardous air pollutant standards for both major source and area source boilers (American Petroleum Institute v. EPA, D.C. Cir., No. 11-1134, 5/12/11).

The petroleum group also filed a petition May 7 asking EPA to reconsider the boiler rules, particularly emissions limits for oil-fired boilers and process heaters located at oil refineries on islands.

Other industries have lodged their own challenges to the rules as well.

Two lawsuits were filed April 29, one challenging the boiler rule for major sources of pollution and the other challenging the solid waste incinerator rule. Thirteen industry groups signed on to each lawsuit (American Forest & Paper Ass'n v. EPA, D.C. Cir., No. 11-1124, 4/29/11; American Forest & Paper Ass'n v. EPA, D.C. Cir., No. 11-1125, 4/29/11; 89 DER A-6, 5/9/11).

The United States Sugar Corp. filed a lawsuit, also in the D.C. Circuit on April 14 challenging EPA emissions standards for the largest industrial boilers (United States Sugar Corp. v. EPA, D.C. Cir., No. 11-1108, 4/14/11; 75 DER A-9, 4/19/11).

By Andrew Childers

EPA's notice staying implementation of the Clean Air Act rules and a related fact sheet are available at http://www.epa.gov/airquality/combustion/actions.html#may11.

For more information on the boiler rule, contact Brian Shrager in EPA's Office of Air Quality Planning and Standards at (919) 541-7689 or shrager.brian@epa.gov.

For more information on the incinerator rule, contact Toni Jones in EPA's Office of Air Quality Planning and Standards at (919) 541-0316 or jones.toni@epa.gov.