Law and the Environment : Environmental Lawyer & Attorney : Foley Hoag Law Firm : Boston, Washington D.C.

EPA held a public hearing this week on its proposed MACT standards for industrial boilers. The issue may not be as sexy as climate change, but it’s an important rule and not just for those operating industrial boilers. For example, the cement industry has burned 50 million tires – including steel belts – according to its own data. EPA wants to classify such tires as a solid waste, rather than a fuel, which would subject cement kilns to incinerators standards. This has the Rubber Manufacturers Association up in arms. (Query: Does the Michelin Man have arms?)

Industry representatives say that the standards simply can’t be met, arguing that EPA cherry-picked the best performance for different air contaminants across a range of facilities, but ignored data showing that no facilities can actually meet all of the standards. According to the Daily Environment Report, Matthew Todd of the American Petroleum Institute described the proposal as “Franken-MACT.”

I suspect that EPA is going to be very skeptical of these claims. Rightly or wrongly, EPA’s view is that industry tends to cry wolf regarding the feasibility of complying with new regulatory standards. In any case, EPA also tends to think of technology-forcing as part of its mission. Time will tell on this one, regarding both EPA’s willingness to meet industry at least part way and industry’s ability to comply with the standards.

The tire issue, which is merely one example, also calls to mind EPA’s current debate regarding regulation of coal combustion residuals. How does EPA balance what it regards as fidelity to statutory requirements with the need to encourage beneficial and economic reuse of what would otherwise be waste materials? At this point, EPA’s thumb appears to be on the regulatory side of the scale, rather than the reuse side. Not surprising, but not necessarily encouraging. 

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Coal has taken its lumps this week. Today, legislation was introduced in Congress to require EPA to promulgate MACT standards for mercury emissions from coal-fired power plants within one year of enactment of the legislation.

There has been some suggestion that the legislation was filed simply to prod EPA to drop its appeal of the decision by the D.C. Circuit Court of Appeals rejecting EPA’s Clean Air Mercury Rule (CAMR), which would have created a cap and trade program for mercury emissions. If so, it worked, if only by telepathy, because, in a separate announcement today, EPA withdrew that appeal.

One way or another, it is clear that EPA will be promulgating, as soon as it reasonably can manage, MACT standards for mercury emissions. What is also clear is that complying with those standards will be more expensive than compliance with the CAMR would have been. What’s not clear is whether EPA will figure out a way to harmonize the mercury rule with other air rules issued and to be issued, so that, while compliance will have to occur on a facility-specific basis, it can at least be achieved as cost-effectively as possible at each facility.

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As the sun sets on the Bush administration, it is at least maintaining its seemingly unmatched record for turning the notion of judicial deference to administrative action on its head, as the D.C. Circuit has rejected yet one more EPA Clean Air Act rule. This time, the Court struck down EPA’s rule exempting startups, shutdowns, and malfunctions (SSM) from emissions standards under § 112 of the CAA.

As with some of EPA’s other judicial defeats, this one was based largely on the Court’s reading of the plain language of the CAA. The Court concluded that “EPA’s decision to exempt major sources from compliance with section 112 emission standards during SSM events is contrary to the plain text of the statute and arbitrary and capricious in any event.” The Court noted that § 302(k) of the CAA defines an “emission standard” as a requirement to “assure continuous emission reduction.” Thus, the Court concluded, Congress required continuous standards under § 112.

Anyone who operates facilities subject to the CAA knows that SSM events pose special challenges. In this context, it is noteworthy that the Court emphasized that EPA had not purported to act under § 112(h) of the CAA, which provides that a standard may be relaxed “if it is not feasible in the judgment of the Administrator to prescribe or enforce an emission standard for control of a [HAP] (hazardous air pollutant).” 

It would be surprising if industry groups did not seek relief under § 112(h) at this point, though whether the Obama EPA will be interested is another matter.

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