Environmental -- 2018

Sierra Club v. EPA   (D.C. Circuit)

Boiler MACT reconsideration rule

The EPA granted a petition from the Sierra Club and others to reconsider parts of its rule for new and existing industrial, commercial, and institutional boilers and process heaters. The rule was written to require the maximum degree of reduction in emissions of hazardous air pollutants that is achievable, taking into consideration the cost of achieving such reductions. Thus, the rule requires “maximum achievable control technology” (MACT) for such equipment. However, the rule does not require a numerical standard during boiler startup and shutdown given the fact that is not “feasible” to determine pollution levels during these times.

The EPA issued final revisions in its 2015 Boiler Rule, and the Sierra Club sued. Manufacturers would bear a large burden and financial hardship if the Sierra Club prevails in its challenge to this rule.

The NAM was granted leave to intervene in support of the EPA and the 2015 Rule. There are two primary issues in the case: (1) whether the EPA properly established a minimum standard level of 130 parts per million (ppm) of carbon monoxide for certain boiler emissions, and (2) whether the EPA reasonably established work practice standards for periods of startup and shutdown where it is impracticable to determine compliance with numerical standards during those periods.

The court ruled on March 16, 2018. First, the court found that the limit of 130 ppm for carbon monoxide as a proxy for hazardous air pollutants is not reasonable because the EPA’s own data contradicts EPA’s conclusion that no further emissions reductions are possible below that amount. In support of the 130 ppm limit, EPA relied on data that it had previously criticized as inaccurate. Significantly, however, EPA remanded but did not vacate this aspect of the rule. EPA should be able to substantiate this limit on remand with better support.

Second, the court held that the rule’s flexibility on emissions during startup and shutdown of the boilers is reasonable and consistent with the Clean Air Act because there is significant variability in the time and emissions profiles of boilers during startup/shutdown and the rule still requires controls "as expeditiously as possible" during startup and shutdown.

The plaintiffs filed a petition for rehearing with the court, which the NAM opposed. On July 5, 2018, the court denied the rehearing request.

Related Documents:
NAM Petition  (June 5, 2018)
NAM intervenor brief  (November 16, 2016)
NAM motion to intervene  (February 18, 2016)


© 2019 National Association of Manufacturers