Toxic Emissions: New Boiler Rule Coming to a Boil

by Bill Chameides | December 9th, 2011
posted by Erica Rowell (Editor)

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Sigh. The politicization of yet another environmental rule takes center stage in the latest Congress-versus-the-president showdown.

The debate over regulations of toxic air emissions has been simmering for years. And right now it’s the fight over pollution from industrial and commercial boilers that is coming to a boil. At center stage in this fight is the fate of the so-called boiler MACT rule which mandates “maximum achievable control technology” (hence the MACT acronym) for emissions of toxics like mercury from commercial and industrial boilers.*

The Slow Burn of an Environmental Regulation

To follow the history of the not-quite-ready-for-prime-time boiler MACT rule, you have to go all the way back to 2000 when the Environmental Protection Agency first adopted standards and emission guidelines for commercial and industrial boilers, process heaters, incinerators and the like, requiring the use of maximum achievable control technology to control emissions, as directed by the Clean Air Act of 1990.

This rule was promptly challenged in 2001 for not including the full list of toxic emissions that should have been covered. The U.S. Court of Appeals for the District of Columbia Circuit ordered EPA to modify the rule, but the rule was also allowed to stand in the interim. In 2005 EPA reissued the rule, but in 2007 that rule was vacated by the DC Court and EPA was sent back to the drawing board. (More details here [pdf].)

In April 2010 EPA proposed new draft rules. which received such a hue and cry from industry that EPA decided to delay finalizing the rule and extended the public comment period. Some 4,800 comments later EPA issued its “final rule” on February 23, 2011 — but it had changed so significantly from its first iteration that the agency immediately acknowledged it would seek yet more review and “reconsider” the final [sic] rule.

That reconsideration period ended on December 2nd when EPA issued a new version of its final rule, one that was less stringent than the previous final rule and would require little action beyond routine maintenance for more than 99 percent of boilers. And yet even this was met with strong opposition and claims that the new rules would lead to job losses and “undermine competitiveness” — claims that have been challenged by others.

Not Enough for You? Congress Turns It Up Some More

As you can see, the writing of the boiler MACT rule has been a slow and arduous slog — and it’s far from over. It’s anticipated that the rule will not be finalized until the spring of 2012, and even that end date depends on what floats to the surface during the upcoming 60-day comment period.

But Congressional Republicans are hoping to short-circuit the whole process through the tried-and-true “add-a-rider-to-must-pass-legislation” gambit. In this case the must-pass bill is the extension of the payroll tax holiday.

This particular tax holiday has been a political football in the partisan fight for the voting public’s hearts and minds, with Democrats pushing for the extension and paying for it with additional taxes and Republicans unwilling to go along with any new taxes. How to finance the holiday is the main event in this very partisan bout, and while the specifics of this aspect of the tax-holiday debate could probably fill several posts, they are not really of relevance here. What is of relevance are the riders in the Republicans’ bill, namely the requirements that:

With the current holiday expiring at the end of the year, time is rapidly running down for Congress and the president to put the tax holiday in place. And that won’t happen without compromise — Democrats need Republican support, and House Republicans seem to be suggesting that the price of compromise may be torching even this latest, watered-down effort by EPA to control air toxic emissions from boilers.  


End Note

The boiler MACT rule should not be confused with the utility MACT rule (also known as the Mercury and Air Toxics Standards or MATS), which is expected to be finalized on December 16th.

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