Court vacates portion of EPA’s MACT rule

By Erin Voegele | August 02, 2016

On July 29, the U.S. Court of Appeals for the D.C. Circuit issued an opinion on a lawsuit regarding the U.S. EPA’s Boiler Maximum Achievable Control Technology (MACT rule), vacating certain elements of the rule.

Court documents indicate the lawsuit consolidated approximately 30 challenges to three regulations promulgated by the EPA, including the Major Boilers Rule, the Area Boilers Rule and the Commercial/Industrial Solid Waste Incinerators Rule, which set emissions limits on certain combustion machinery. The court noted roughly half of the challenges were brought by industry petitioners, described as entities that own and operate boilers, process heaters, and incinerators. The other half were brought by environmental groups.

Information released by the court explains the Major Boilers Rule and Area Boilers Rule govern emissions from boilers and process heaters. For simplicity, the court refers to both types of equipment as boilers. The two rules also divide machinery into three categories, including industrial, commercial, and institutional. The third rule, the CISWI Rule, governs solid waste incinerator units located in commercial or industrial facilities that combust solid waste as defined in the Resource Conservation Recovery Act.

Within its more than 150-page opinion, the court said it is vacating “the MACT standards for all major boiler subcategories that would have been effected had the EPA considered all sources included in the subcategories.” The court also said it is remanding, without vacatur, to the EAP to “(1) adequately explain how CO acts as a reasonable surrogate for nondioxin/furan organic HAPs; (2) set emission standards for cyclonic burn barrels; (3) determine whether burn-off ovens, soil treatment units, and space heaters are CISWI units and, if so, to set standards for those types of units; (4) adequately explain the exclusion of synthetic boilers from Title V’s permitting requirements; and (5) adequately explain the choice of GACT standards over MACT standards for non-Hg metals.”

The American Wood Council issued a statement following release of the court’s decision. “It is unfortunate that the rule was partially vacated and remanded in several key areas by the D.C. Circuit. AWC worked long and hard with EPA to develop a rule that was protective of health and the environment, yet pragmatic and well tailored for safely burning carbon neutral biomass residuals in our boilers. We remain committed to these objectives going forward,” said AWC President and CEO Robert Glowinski. “We appreciate EPA’s willingness to work with us during the development of these rules and for addressing our major concerns in the final Boiler MACT rules. We also thank members of Congress and governors for their past work to bring attention to these important issues and whose help may be needed to reestablish workable rules.”

The American Forest & Paper Association has also weighed in on the court’s action, noting boiler operations are crucial to paper and wood manufacturers’ ability to generate energy. “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 provide 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,” said AF&PA President and CEO Donna Harman. “Unfortunately, this continues the atmosphere of regulatory uncertainty that is harming U.S. competiveness on a global scale. Americans deserve a smarter, more cost-effective regulatory process that ensures agencies do more good than harm. We urge the Congress to act on regulatory reforms that will prevent this type situation from occurring in the future.”

A full copy of the court’s opinion can be downloaded on the U.S. Court of Appeals for the D.C. Circuit website