D.C. Circuit Court Issues Remand and Vacatur of Certain Boiler MACT and CISWI Provisions

On July 29, 2016, the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit Court) issued a decision regarding three rules for boilers, process heaters, and incinerators:

• Major Source Boiler MACT – 40 CFR Part 63, Subpart DDDDD (National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters)
• Area Source Boiler MACT – 40 CFR Part 63, Subpart JJJJJJ (National Emission Standards for Hazardous Air Pollutants for Industrial, Commercial, and Institutional Boilers Area Sources)
• CISWI Rules – 40 CFR Part 60, Subparts CCCC (Standards of Performance for Commercial and Industrial Solid Waste Incineration Units) and DDDD (Emissions Guidelines and Compliance Times for Commercial and Industrial Solid Waste Incineration Units)

The decision was in response to petitions submitted by the United States Sugar Corporation, American Forest & Paper Association, and American Chemical Council. In its decision, the D.C. Circuit Court remanded several items to U.S. EPA for further explanation, including their use of carbon monoxide (CO) as a surrogate for non-dioxin/furan organic hazardous air pollutants (HAPs) (more on that in a separate post). However, perhaps the most significant piece of the decision was the vacatur of emissions standards for certain subcategories under Major Source Boiler MACT, particularly for solid fuels. The D.C. Circuit Court stated that their decision to vacate the standards was based on U.S. EPA’s failure to consider all sources included in those subcategories to establish the standards.

We, as well as industry, trade organizations, regulatory agencies, and environmental groups, have been processing this court decision over the last few days. It seems that for every day of processing, the impacts of this decision, particularly the vacatur, become greater and at the same time more unclear. As we know, the only constant in life is change, and the only thing clear about this decision is that it brings more uncertainty to an already complicated set of rules.

Although we are not attorneys, a literal interpretation of the vacatur means that the CO, particulate matter (PM), hydrogen chloride (HCl), and mercury (Hg) emissions standards for certain subcategories will no longer be effective. What that means from a practical perspective for affected facilities is something else entirely. Questions are plentiful. Will new emissions standards be established? When? New standards will likely be more stringent, but by how much? Is a facility that has already demonstrated compliance obligated to continue operating according to the operating parameter limits they established? How can a facility that received a one-year extension continue pursuing controls to comply with limits that do not exist?

ALL4 is following this action closely. Stay tuned for updates and a separate post summarizing the details of the decision. In the meantime, feel free to reach out to me with questions or input at 610.933.5246 x122 or lkroos@all4inc.com.