Biomass Confusion at the EPA

By Bob Cleaves | January 25, 2012

The saga of the U.S. EPA’s Boiler Maximum Achievable Control Technology and related rules continues. With the District Court’s decision on Jan. 9, invalidating the EPA’s previous stay of the original rules, the need for Congressional action has now become critically important.

Some background: In March 2011, the U.S. EPA issued final rules for, among other things, Boiler MACT and Commercial and Industrial Solid Waste Incinerators. These rules were flawed in many respects and, by EPA’s own admission, were in need of further work based on lack of data and feasibility, among other reasons. As a result of the flaws in the March rules, on May 18, the EPA announced that it was delaying the date the rules would go into effect until the agency completed its reconsideration (76 Federal Register 28662).

In accordance with the May 18 decision, the EPA issued revised Boiler MACT and CISWI rules based on the agency’s findings after studying the potential effects of its original rules. The revised rules officially appeared in the Federal Register on Dec. 23, and the EPA has given the industry until Feb. 21 to respond. Presumably, the plan was for the new set of rules to be finalized this spring.

However, this plan was disrupted on Jan. 9, when the U.S. District Court threw a wrench into the revised rules by essentially deciding that the May reconsideration was unlawful. The Court ruled that the EPA’s original March 2011 rules already went into effect on May 20.

While it would appear that the ruling does not affect the Non-Hazardous Secondary Materials rule that was also published on March 21, there are many unanswered questions. Which compliance dates apply, the March 2011 rules or the recently promulgated rules? Will litigants seek to invalidate the recent rules now that the court has determined that the EPA did not have the authority to stay them in March 2011?  Most important, what does all this mean for the biomass industry caught in the crossfire? How many hard-earned dollars and jobs could be lost as a result of the confusion?

All of this highlights a fundamental point: EPA rulemaking should not be done in the courts. For Congressional “fence sitters” who were reluctant to support legislation on the assumption that the EPA would “get it right” through the revised rules, the issue is now clear. Only legislation can cure the uncertainty that has been created by litigation. Congress needs to take action now to give the EPA the time it needs to collect and confirm all the facts, and craft rules that are reasonable, achievable, and protective of the public health and the environment.

Author: Bob Cleaves
President and CEO, Biomass Power Association