Peter G. Mayberry11.07.16
The U.S. Court of Appeals for the DC Circuit issued a decision on July 29 regarding U.S. Environmental Protection Agency’s (EPA) national emission standards for industrial boilers under the Maximum Achievable Control Technology (MACT) provisions contained in the Clean Air Act. These standards – collectively known as the “Boiler MACT” – were finalized in 2013 and the court’s decision allows for their continued implantation.
Boiler MACT standards apply to nearly 25,000 existing facilities in the U.S. that use regulated boilers and could cost industry about $1.6 billion annually to comply with fully-implemented standards. The Court’s opinion sides with environmental groups and holds that EPA wrongly excluded high-performing boilers when calculating emission standards for various subcategories of industrial boilers. The court also found fault with some of the agency’s justifications for several aspects of the rule – including EPA’s choice to use carbon monoxide as a surrogate for various hazardous air pollutants.
The impacts of all this on nonwovens producers are not immediately obvious but, if nothing else, this decision could add further delay to the anticipated increases in utility costs that are predicted to follow full implementation (note EPA estimates that more than 22,000 power plants could be impacted). Beyond that, any nonwovens producer or converter that uses an industrial boiler in their U.S. operations should get up to speed on this issue quickly if they haven’t done so already.
As to the consequences of Boiler MACT standards, Donna Harman, president and CEO of the American Forest and Paper Association, said, “We are disappointed that after years of back-and-forth the D.C. Circuit Court has ruled against reason in vacating certain key standards and remanding other portions of rules that, by most accounts, are reasonable and achievable despite the extensive technically sound information and test data provided to and relied upon by the EPA. We will continue to provide sound information and data to the EPA as it responds to the remanded and vacated portions of the rule.”
In a posting on lexicon.com entitled “Where Do We Go From Here? D.C. Circuit Decision in the Industrial Boiler MACT/Incinerator Rule Challenges takes Boiler Operators Down an Uncertain Road,” the authors note: “It remains to be seen whether any of the parties to the challenges will seek reconsideration, but in several instances, including the court’s decision to vacate a yet unknown number of emission limitations, there are good arguments that the court has improperly substituted its judgment for U.S. EPA’s technical expertise.”
At Issue
EPA initially finalized the current Boiler MACT standards on March 21, 2011. After finalization, the Agency received 13 petitions seeking reconsideration of specific provisions. EPA reviewed these petitions and published notice in January 2013 outlining how it planned to address issues of concern raised in the petitions and called for comment on its proposed response.
After reviewing comment, EPA published a “final action on reconsideration” in November 2015. It was this notice which sparked the lawsuit that was recently decided in Federal Court.
One area of reconsideration addressed in 2015 was Boiler MACT provisions for low-sulfur, liquid-burning boilers as well as the definition of low-sulfur liquid fuel curtained on: 1) the extent to which burning low-sulfur liquid fuels, as defined under the final rule, would control the urban metal HAP for which the category of sources was listed and for which PM serves as a surrogate (i.e., Hg, arsenic, beryllium, cadmium, lead, chromium, manganese, nickel); and 2) whether the final rule’s definition of low-sulfur would allow emissions to exceed the final rule’s emission limit for PM.
After reconsideration, EPA finalized an alternative PM standard for new oil-fired boilers that combust ultra-low-sulfur liquid fuel that was part of the 2015 proposal. This was one of the issues that EPA has modified with its September 14, 2016, notice which took effect immediately.
With regard to the establishment of Subcategory and Separate Requirements for limited-use boilers, EPA was petitioned to reconsider its decision to adopt a subcategory that includes any boiler that burns any amount of solid or liquid fuels and has a federally-enforceable average annual capacity factor of no more than 10%. Separate requirements for this subcategory – boilers that operate on a limited basis—were also established.
EPA requested comment on whether separate requirements for a limited-use boiler subcategory are necessary or appropriate. Based on comments received, however, EPA is retaining the limited-use boiler subcategory and its separate requirements.
Another area of reconsideration – establishment of a provision that eliminates further performance testing for PM for certain boilers based on their initial compliance test – was based on a Boiler MACT provision that specifies that further PM emissions testing does not need to be conducted if, when demonstrating initial compliance with the PM emission limit, the performance test results show that the PM emissions from the affected boiler are equal to or less than half of the applicable PM emission limit.
Performance testing for PM for certain boilers based on their initial compliance test was another area of the Boiler MACT that EPA is reconsidered. In its call for comment on the issue, EPA specifically solicited supporting information for the magnitude and range of variability in PM and urban metal HAP emissions from individual boilers among other issues.
After considering these comments, EPA finalized an alternative provision that requires further PM performance testing every five years for certain boilers based on their initial compliance test or if the owner/operator decides to use a fuel type, other than ultra-low-sulfur liquid fuel or gaseous fuels, that was not used when demonstrating that the PM emissions from their boiler were equal to or less than half of the PM emission limit.
The final area of final reconsideration has to do with the establishment of a provision that eliminates further fuel sampling for mercury for certain coal-fired boilers based on their initial compliance demonstration.
More information: Mary Johnson in the Energy Strategies Group of EPA’s Sector Policies and Programs Division; 919-541-5025; johnson.mary@epa.gov; or www.regulations.gov (searching docket number EPA-HQ-OAR-2002-0058).
321 Manufacturers of lumber and wood products
11 Agriculture operations and greenhouses
311 Food manufacturing operations
327 Nonmetallic mineral product manufacturing
424 Wholesale trade, nondurable goods operations
531 Real estate firms
611 Educational service providers
813 Religious, civic, professional, and similar organizations
92 Public administration operations
722 Food services and drinking places
62 Health care and social assistance operations
22,111 Facilities involved in the generation of electric power
Boiler MACT standards apply to nearly 25,000 existing facilities in the U.S. that use regulated boilers and could cost industry about $1.6 billion annually to comply with fully-implemented standards. The Court’s opinion sides with environmental groups and holds that EPA wrongly excluded high-performing boilers when calculating emission standards for various subcategories of industrial boilers. The court also found fault with some of the agency’s justifications for several aspects of the rule – including EPA’s choice to use carbon monoxide as a surrogate for various hazardous air pollutants.
The impacts of all this on nonwovens producers are not immediately obvious but, if nothing else, this decision could add further delay to the anticipated increases in utility costs that are predicted to follow full implementation (note EPA estimates that more than 22,000 power plants could be impacted). Beyond that, any nonwovens producer or converter that uses an industrial boiler in their U.S. operations should get up to speed on this issue quickly if they haven’t done so already.
As to the consequences of Boiler MACT standards, Donna Harman, president and CEO of the American Forest and Paper Association, said, “We are disappointed that after years of back-and-forth the D.C. Circuit Court has ruled against reason in vacating certain key standards and remanding other portions of rules that, by most accounts, are reasonable and achievable despite the extensive technically sound information and test data provided to and relied upon by the EPA. We will continue to provide sound information and data to the EPA as it responds to the remanded and vacated portions of the rule.”
In a posting on lexicon.com entitled “Where Do We Go From Here? D.C. Circuit Decision in the Industrial Boiler MACT/Incinerator Rule Challenges takes Boiler Operators Down an Uncertain Road,” the authors note: “It remains to be seen whether any of the parties to the challenges will seek reconsideration, but in several instances, including the court’s decision to vacate a yet unknown number of emission limitations, there are good arguments that the court has improperly substituted its judgment for U.S. EPA’s technical expertise.”
At Issue
EPA initially finalized the current Boiler MACT standards on March 21, 2011. After finalization, the Agency received 13 petitions seeking reconsideration of specific provisions. EPA reviewed these petitions and published notice in January 2013 outlining how it planned to address issues of concern raised in the petitions and called for comment on its proposed response.
After reviewing comment, EPA published a “final action on reconsideration” in November 2015. It was this notice which sparked the lawsuit that was recently decided in Federal Court.
One area of reconsideration addressed in 2015 was Boiler MACT provisions for low-sulfur, liquid-burning boilers as well as the definition of low-sulfur liquid fuel curtained on: 1) the extent to which burning low-sulfur liquid fuels, as defined under the final rule, would control the urban metal HAP for which the category of sources was listed and for which PM serves as a surrogate (i.e., Hg, arsenic, beryllium, cadmium, lead, chromium, manganese, nickel); and 2) whether the final rule’s definition of low-sulfur would allow emissions to exceed the final rule’s emission limit for PM.
After reconsideration, EPA finalized an alternative PM standard for new oil-fired boilers that combust ultra-low-sulfur liquid fuel that was part of the 2015 proposal. This was one of the issues that EPA has modified with its September 14, 2016, notice which took effect immediately.
With regard to the establishment of Subcategory and Separate Requirements for limited-use boilers, EPA was petitioned to reconsider its decision to adopt a subcategory that includes any boiler that burns any amount of solid or liquid fuels and has a federally-enforceable average annual capacity factor of no more than 10%. Separate requirements for this subcategory – boilers that operate on a limited basis—were also established.
EPA requested comment on whether separate requirements for a limited-use boiler subcategory are necessary or appropriate. Based on comments received, however, EPA is retaining the limited-use boiler subcategory and its separate requirements.
Another area of reconsideration – establishment of a provision that eliminates further performance testing for PM for certain boilers based on their initial compliance test – was based on a Boiler MACT provision that specifies that further PM emissions testing does not need to be conducted if, when demonstrating initial compliance with the PM emission limit, the performance test results show that the PM emissions from the affected boiler are equal to or less than half of the applicable PM emission limit.
Performance testing for PM for certain boilers based on their initial compliance test was another area of the Boiler MACT that EPA is reconsidered. In its call for comment on the issue, EPA specifically solicited supporting information for the magnitude and range of variability in PM and urban metal HAP emissions from individual boilers among other issues.
After considering these comments, EPA finalized an alternative provision that requires further PM performance testing every five years for certain boilers based on their initial compliance test or if the owner/operator decides to use a fuel type, other than ultra-low-sulfur liquid fuel or gaseous fuels, that was not used when demonstrating that the PM emissions from their boiler were equal to or less than half of the PM emission limit.
The final area of final reconsideration has to do with the establishment of a provision that eliminates further fuel sampling for mercury for certain coal-fired boilers based on their initial compliance demonstration.
More information: Mary Johnson in the Energy Strategies Group of EPA’s Sector Policies and Programs Division; 919-541-5025; johnson.mary@epa.gov; or www.regulations.gov (searching docket number EPA-HQ-OAR-2002-0058).
321 Manufacturers of lumber and wood products
11 Agriculture operations and greenhouses
311 Food manufacturing operations
327 Nonmetallic mineral product manufacturing
424 Wholesale trade, nondurable goods operations
531 Real estate firms
611 Educational service providers
813 Religious, civic, professional, and similar organizations
92 Public administration operations
722 Food services and drinking places
62 Health care and social assistance operations
22,111 Facilities involved in the generation of electric power
