Proposed Air Toxic Limits 'Too Tight' For Some Boilers, EPA Official Says

Hazardous air pollutant emissions limits proposed for some industrial boilers are too stringent, the Environmental Protection Agency's top air pollution official said Dec. 2.

Gina McCarthy, EPA assistant administrator for air and radiation, told reporters that information provided in comments on the proposed emissions limits indicated that “numbers were too tight to be achievable” for industrial boilers in some sectors.

McCarthy, who was appearing at a clean air forum sponsored by the American Law Institute/American Bar Association, did not say which industrial sectors would be affected by the proposed standards that were too stringent.

She said EPA “had very little information” when the emissions limits were proposed in June, but that information received in comments on the proposal “changed the calculation entirely” (114 DEN A-7, 6/16/10)

McCarthy did not say that any emissions limits would be relaxed in the final rule, but Robert Bessette, president of the Council of Industrial Boiler Owners, told BNA that EPA now has “enough information to be able to come up with a standard that is reasonable.”

EPA received new data through the comment process and must “pay attention to the data,” McCarthy said.

EPA's proposed boiler and incinerator rules have drawn considerable attention from Congress, with senators and representatives raising concerns about the rules' potential impact on jobs during a down economy.

More than 100 members of Congress signed an Aug. 2 letter to EPA Administrator Lisa Jackson urging EPA to consider the economic impact of its proposed boiler rules when finalizing the emissions standards (150 DEN A-8, 8/6/10).

In a September letter, 41 senators, including 18 Democrats and 23 Republicans, also raised concerns about the potential job losses as a result of the proposed rules (187 DEN A-9, 9/29/10).

Three Rules Proposed.

EPA proposed two separate rules in June to set national emissions standards for hazardous air pollutants (NESHAP) for industrial, commercial, and institutional boilers and process heaters--one for major sources and one for smaller area sources. The proposed rules would require operators to control emissions of toxic pollutants such as mercury, hydrogen chloride, particulate matter, carbon monoxide, and dioxins and furans with emissions standards based on the boiler type and size (75 Fed. Reg. 31,896; 75 Fed. Reg. 32,006; (83 DEN A-10, 5/3/10).

In a third rule, EPA also proposed revised new source performance standards for commercial and industrial solid waste incinerators, requiring them to control emissions of nine pollutants, including air toxics (75 Fed. Reg. 31,938; 83 DEN A-12, 5/3/10).

The proposals responded to a decision in 2007 by the U.S. Court of Appeals for the District of Columbia Circuit striking down the previous air toxics standards for boilers. A three-judge panel ruled EPA had wrongly excluded many industrial boilers from the definition of solid waste incinerators, which have more stringent emissions limits under Section 129 of the Clean Air Act (NRDC v. EPA, D.C. Cir., No. 04-1385, 6/8/07; 112 DEN A-11, 6/12/07).

Industry groups argued in public hearings and in comments on the proposed rule that EPA's standards could not be achieved by boilers currently in operation, violating the Clean Air Act's requirement that the standards reflect the best pollution controls currently available (114 DEN A-7, 6/16/10; 170 DEN A-3, 9/3/10).

McCarthy said EPA is on track to meet the court-ordered deadline for finalizing the standards. EPA is under a court deadline to issue a final rule by Jan. 16.

More Time Needed, Industry Leader Says.

Bessette, with the Council of Industrial Boiler Owners, said that EPA needs more time to consider the comments and the information provided. “To do it right, they probably need six more months,” he said.

“They're finally coming to believe us that they're unachievable,” Bessette said of the proposed standards.

Bessette said that his organization met with EPA and said that only six of 1,500 existing industrial boilers can meet the proposed standards. No planned new units can meet the standards, he said.

EPA 'Should Look at the Data.'

James Pew, an attorney at Earthjustice who represented the Natural Resources Defense Council, told BNA: “The standards should be what the law requires. We're not trying to make them set more stringent standards; we just want them to do what the law requires.”

“This is what the process is for,” Pew said. “If they got more data, they should look at the data. One thing we don't have a problem with is more emissions data.”

Randy Rawson, president of the American Boiler Manufacturers Association, told BNA he had written EPA with his concerns about the proposed emissions standards and the agency indicated it would “substantially revise” its proposal.

“They didn't get all the data they needed for the proposal,” Rawson said. “When they came out with the rule everybody provided them with the data they should have provided them in the first place. Unless the technology is guaranteeable by a manufacturer, it's not doable under commercial laws because nobody is going to buy it.”

By Steven D. Cook and Andrew Childers