Environment Reporter™ keeps you fully up to date on rapidly changing developments in courts, Congress, federal agencies, state legislatures, industry, and environmental organizations.
The Environmental Protection Agency said June 24 it will propose updated air pollution standards for major source boilers, area source boilers, and solid waste incinerators by October and will finalize the standards by April 2012.
In its announcement, EPA said the schedule will ensure the public has time to comment and the standards will be based on the best available data.
“This is the best approach to put in place technically and legally sound standards that will bring significant health benefits to the American public,” EPA said.
Following EPA's announcement, industry groups questioned whether the agency is giving itself enough time to issue the proposals, which are intended to address deficiencies in final standards the agency published in March. An attorney representing the Sierra Club, which sued to force EPA to issue those standards, said the agency does not have the authority to keep delaying the rules.
EPA submitted the dates to the U.S. Court of Appeals for the District of Columbia Circuit in support of its motion to hold in abeyance cases challenging the solid waste incinerator rule (American Forest & Paper Ass'n v. EPA, D.C. Cir., No. 11-1125, 6/24/11).
In March, EPA published final rules setting national emissions standards for hazardous air pollutants for major source and area source boilers. The agency also finalized new source performance standards for solid waste incinerators and sewage sludge incinerators (76 Fed. Reg. 15,608; 76 Fed. Reg. 15,554; 76 Fed. Reg. 15,704; 76 Fed. Reg. 15,372; 42 ER 614, 3/25/11).
The agency immediately announced its intent to reconsider portions of the standards for major source boilers, area source boilers, and solid waste incinerators, and the new rulemaking is intended address those issues (76 Fed. Reg. 15,266).
Then in May, EPA said it would stay the effective date for the major source boiler and solid waste incinerator standards until EPA completes its reconsideration process or until legal challenges are resolved (76 Fed. Reg. 28,662; 42 ER 1101, 5/20/11).
James Pew, an Earthjustice attorney representing the Sierra Club, told BNA June 24 that EPA has no authority to delay the rules. EPA was under a court order to finalize the rules by February (Sierra Club v. Jackson, D.D.C., No. 01-1537).
“Delaying it for a year is somewhat better than delaying it indefinitely, but delaying it all is illegal,” Pew said. He also said he has no confidence EPA will meet the October and April deadlines, given EPA's bad track record at keeping to schedules.
Pew pointed to EPA statistics that said the major source boiler rule would prevent 2,500 to 6,500 premature deaths per year. Delaying the rules from their March publication until April 2012 would cost that many lives, he said.
“The agency is choosing to kill people, rather than deal with adverse political pressure from industry lobbyists,” Pew said.
The Sierra Club is weighing its legal options, he said.
EPA may not be giving itself enough time to propose the updates, Howard Feldman, director of regulatory and scientific affairs for the American Petroleum Institute, told BNA June 24.
“We think they're unnecessarily imposing a schedule on themselves when they should take the right amount of time to do the correct analysis,” Feldman said. “It seems like EPA is unnecessarily putting themselves into a box on this when they're jammed up with a bunch of other rules at the same time.”
He said EPA will be collecting data from industry through July, and the agency will not have much time to analyze the data before early September, when it would need to send the rules to the White House Office of Management and Budget for regulatory review.
Donna Harman, president and chief executive officer of the American Forest and Paper Association, said in a June 24 statement that some of the testing data EPA has requested may not be done by October, so she encouraged Congress to pass H.R. 2250, which would give EPA an additional 15 months to propose emissions standards for boilers and incinerators.
The proposed EPA Regulatory Relief Act was introduced June 21. It would extend the industry compliance date from three years to at least five years after the rules are finalized (42 ER 1379, 6/24/11).
Robert Bessette, president of the Council of Industrial Boiler Owners, told BNA June 24 that EPA's deadline announcement could be an attempt to preempt H.R. 2250.
He said EPA appears to be pushing forward a rule that is “tenuously defendable in court” because of the changes the agency made between the proposed and final versions of the rule.
“It's a strategic, political move,” Bessette said.
Rep. Fred Upton (R-Mich.), the chairman of the House Energy and Commerce Committee, said in a statement June 24 that EPA's short timeframe “will prevent the agency from revising the rules in their entirety and addressing all the difficult technical issues that have been raised. . . . The only way to truly stave off the economic and jobs threat of these rules is for Congress to pass legislation giving EPA the time to develop these rules and industry the time to adopt them.”
EPA proposed the boiler and incinerator rules in 2010, and the agency said it revised the regulations significantly in their final versions, based on public comments it received.
The revisions required more public comment, EPA said, and the agency sought additional time to re-propose portions of the standards. A federal judge denied the request and ordered EPA to issue the final rules by February (42 ER 93, 1/21/11).
When the agency issued the rules, it also announced its intent to reconsider portions of the standards for major source boilers, area source boilers, and solid waste incinerators, including additional subcategories for major source boilers, work practice standards for major source boilers that have limited use, limits on fuel-switching for incinerators, revisions to carbon monoxide monitoring requirements for both incinerators and boilers, and particulate matter emissions limits under less stringent generally available control technology standards for oil-fired area source boilers.
The rules require boilers to control emissions of mercury, dioxins, particulate matter, hydrogen chloride, and carbon monoxide.
The 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 has been working on the boiler rules for years. In 2004, EPA issued a rule that would have required boilers to reduce emissions of toxic pollutants, but it was overturned by the U.S. Court of Appeals for the District of Columbia Circuit (38 ER 1317, 6/15/07).
By Jessica Coomes
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