Last Friday, the DC Circuit Court vacated a key part of the boiler MACT rule that could affect 100s of biomass and coal boilers that recently came into compliance with the 2013 rule.

The court ruled thatwhen EPA creates a subcategory of boilers, under the MACT provisions of the CAA, EPA cannot exclude cleaner burning units just because they are not representative of the other units when establishing the limits.  Unfortunately, the court did not specify exactly what standards are vacated, so further analysis and outreach to EPA or the court will be necessary.

Fortunately, the court upheld most other provisions, including the methodology EPA uses in setting standards that considers performance variability and has led to more realistic limits. 

A few other parts of the rule were remanded to EPA for further justification, which the court signaled likely would suffice.

All industry issues were rejected by the court, including our challenge of the energy audit requirements and the lack of separate standards for periods of malfunction.

The American Wood Council (AWC), in which KCMA is a member, issued a July 29 statement describing the D.C. Circuit's decision as a “step back” for industry.

“It is unfortunate that the rule was partially vacated and remanded in several key areas by the D.C. Circuit,” Robert Glowinski, president and chief executive officer of the council, said. “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.”

The ruling does not become effective until the mandate is issued, which could occur within 52 days (mid-September) unless rehearing petitions are filed. Once the limits are vacated, the boilers again would have no or limited MACT obligations until EPA goes through notice and comment rulemaking, which could be quick if it involves only a few adjustments using the current database, or it could take several years.