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EPA Plans on Limited Further Reconsideration of Boiler and Incinerator Air Quality Regulations

Posted Thursday, August 29th, 2013

In three motions filed on August 6th with the U.S. Court of Appeals for the District of Columbia Circuit, the U.S. Environmental Protection Agency (EPA) stated that it plans to reconsider certain aspects of its Major Source Boiler MACT (40 CFR 63, Subpart DDDDD), Area Source Boiler MACT (40 CFR 63, Subpart JJJJJJ), and Commercial and Industrial Solid Waste Incineration Rule (CISWI) (40 CFR 60, Subparts CCCC and DDDD).  The three rules were previously issued on March 21, 2011, along with notices that EPA was reconsidering certain issues related to each rule.  EPA finalized reconsideration of all three rules in early 2013.  In each instance, both the original and the reconsidered rules were challenged, and EPA received a number of requests to further reconsider some of the issues addressed in the reconsidered rules.  EPA has now completed its initial review of the requests for further reconsideration of the rules and has identified certain issues for further reconsideration.  Those issues include:

• For the Major Source Boiler MACT: (1) the definitions of startup and shutdown periods and the work practice standards applicable to such periods; (2) a revised carbon monoxide (CO) limit based on a minimum CO level of 130 parts per million; and (3) the use of continuous parameter monitoring systems, including the consequences of exceeding the operating parameter.

• For the Area Source Boiler MACT: (1) the definitions of startup and shutdown periods; (2) an alternative particulate matter (PM) standard for new oil-fired boilers that combust low-sulfur oil; (3) the establishment of a subcategory for limited-use boilers; (4) a provision that eliminates further performance testing for PM for boilers when an initial compliance test shows that PM emissions are equal to or less than half of the PM emission limit; and (5) a provision that eliminates fuel sampling at coal-fired boilers that demonstrate compliance with the mercury emission limit by fuel analysis based on the results of the boiler’s initial compliance demonstration.

• For CISWI: (1) the definition of “CEMS data during startup and shutdown periods”; and (2) a PM limit for the waste-burning kiln subcategory.

In its August 6th motions, EPA asked the Court to hold challenges to the above issues in abeyance pending reconsideration.  Several industry groups supported EPA’s request; however, they also asked the Court to require EPA to finalize reconsideration before the end of 2013 and to grant the abeyance with an expiration date of December 31, 2013, reasoning that this will “ensure that EPA will expeditiously reconsider the issues and the case will move quickly to full and final resolution of all issues.”  On August 26th, EPA responded in opposition to the requested deadline, arguing that the Court lacked jurisdiction to impose such a deadline and that the requested deadline would not provide enough time for EPA to complete the reconsideration process.  The Court has yet to rule on the motions, but a decision is expected soon.

For additional information contact Andrew Holway.

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