EPA takes another crack at Clean Air Act boiler rules

"I've got to keep breathing. It'll be my worst business mistake if I don't." - Steve Martin 

In May 2011, EPA delayed plans to regulate emissions from boilers in response to pressure from industry, which thought that the rules as proposed were too tough.  It has since reconsidered the regulations and has indicated a new set of regulations that it believes meets the requirements of the Clean Air Act, but provides some relief on the potential costs of compliance.  EPA still needs to collect public comments on these new rules, issue a final rule and then see how the inevitable court challenges to the rules turn out.

The rules that EPA announced on December 2, 2011, are actually three rules: industrial, commercial, and institutional boilers - area sources; industrial, commercial, and institutional boilers and process heaters - major sources; and commercial and industrial solid waste incineration units.  Despite the outcry about these rules instil, it is interesting to note that most boilers (86 percent, which run on natural gas) are not covered by any of these rules.  The area source rules would apply to about 13 percent of all boilers, while the rule that has generated the most controversy relates to major sources - a mere 0.4 percent of boilers in service in the United States.

With respect to area boilers (i.e., those that emit amounts of hazardous air pollutants below the threshold for major sources), 98 percent of those boilers will not need to meet emissions limits.  They comply with the rule by ensuring routine maintenance and tune-ups, which will keep emissions from these boilers low.  Two percent of area source boilers will need to meet emission standards, which represents approximately 7,000 coal-fired boilers.

Major sources are defined as those that emit ten tons per year of a single hazardous air pollutant or 25 tons per year of any combination of hazardous air pollutants.  EPA changed its previously released rule in the following manner: creating subcategories for heavy and light industrial liquids used for fuel; establishing different particulate matter (PM) requirements for each fuel stock (e.g., wood, coal); setting new emission limits for carbon monoxide that reflect actual operational variability; allowing sources to regulate for specific metals, instead of using PM limits as a surrogate for metals (to allow for flexibility); allowing control for dioxin using work practices instead of numerical limits; and instituting other means to increase flexibility for operators.

The final rule applies to commercial and industrial solid waste incineration (CISWI) units.  These are facilities that burn solid waste either as a fuel, to reduce the amount of solid waste or to burn in kilns that produce products.  These facilities will need to either install controls or change their operations.  These rules also incorporate flexibility for sources to meet Clean Air Requirements.

In all, EPA dug through thousands of comments to the previous rules and reformulated the rules, making the costs of compliance lower.  Now, these rules will be subject to additional public comment before they become final.  Even with the changes, EPA estimates that the new rules will keep 8,100 people from dying prematurely, stop 5,100 heart attacks, and reduce the number of asthma attacks by 52,000 annually by 2015.

The author, Saulius Mikalonis, is an environmental attorney with over 25 years of experience in the Bloomfield Hills offices of Plunkett Cooney.  He is also the author of The Green Blawg, in which he writes about environmental law issues for the non-lawyer.  In addition to practicing law, Mr. Mikalonis is an adjunct professor at the Thomas M. Cooley Law School, Auburn Hills Campus, at which he teaches a course entitled "Sustainable Development Law & Policy" and a Board Member of the Detroit Regional Chapter of the United States Green Building Council (USGBC).
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