AIR POLLUTION

Court tosses part of contentious EPA boiler rule

A federal court today threw out part of U.S. EPA's air pollution standards for boilers and rejected all industry challenges against the rules in a win for environmentalists.

In a unanimous ruling, the U.S. Court of Appeals for the District of Columbia Circuit agreed with environmentalists who faulted EPA's analysis of which emission sources should be used to set standards for certain types of major boilers.

The court sided with environmentalists in other areas, directing EPA to improve how it explains its decisions. But the three-judge panel rejected all industry claims against the rules, including an argument that EPA shouldn't hold facilities accountable for emissions released during unexpected malfunctions.

The 162-page decision was issued by Judges Karen LeCraft Henderson, Janice Rogers Brown and Thomas Griffith, all Republican appointees.

At issue were about 30 challenges to the 2011 rules for curbing toxic air emissions from large industrial boilers, process heaters and smaller boilers.

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The agency set rules for boilers deemed "major sources" of air toxics and for smaller "area source" boilers that burn natural gas, coal, biomass or other fuels to produce steam for electricity or heat. Also involved in the case was EPA's emission rule for solid waste incineration.

Major industry groups challenged the rules, arguing that they were too stringent and that EPA failed to account for what emission reductions are achievable. They also argued EPA didn't properly account for malfunctions that can cause emission spikes.

On the other hand, environmental groups represented by Earthjustice argued that the rules were too weak and that EPA failed to crack down on certain hazardous pollutants. Environmentalists also said EPA had watered down the rules by creating too many categories of sources.

Today, judges agreed with environmentalists' contention that EPA wrongly excluded some existing boilers that were among the best-performing in certain subcategories. Had they been included, EPA's standards would have been more stringent.

"An unusually high-performing source should be considered," the court said. "Indeed its performance suggests that a more stringent ... standard is appropriate."

The court vacated standards for all major boiler subcategories that would have been affected had EPA considered all the sources in the subcategories.

While it left the rest of the standards intact, the court sided with environmentalists by remanding other parts of the rule back to EPA.

Judges directed EPA to better explain why it decided to exclude synthetic boilers from obtaining Clean Air Act operating permits.

Judges also demanded a better explanation for why EPA established technology standards for mercury and polycyclic organic matter from some coal-fired boilers but didn't regulate other types of pollutants from the same boilers.

They also agreed with environmentalists that EPA hadn't thoroughly explained its decision to use carbon monoxide as a proxy to regulate several other hazardous air pollutants that are often difficult to measure.

Specifically, the judges found EPA hadn't explained how it could still accomplish Clean Air Act requirements for reducing hazardous emissions based on what best performers in the industry can achieve.

But the decision rejected industry claims that EPA had failed to explain why it chose carbon monoxide and had relied on faulty data sets. The D.C. Circuit noted that the court has previously approved the use of surrogates for regulating hazardous air pollutants.

Industry claims rejected

The D.C. Circuit rejected all industry claims that EPA had failed to take into account emissions violations that occur during unexpected malfunctions in its boiler rules. Industry had also argued that EPA failed to take startup and shutdown events into account in its solid waste incinerator rule.

EPA's rule says the agency would address exceedances of pollution limits caused by malfunctions "on a case-by-case basis."

Courts have previously ruled that EPA can't issue a blanket exemption from air pollution standards for malfunctions, the D.C. Circuit noted.

"Because the EPA had no option to exclude these unpredictable periods," the D.C. Circuit found, "its approach is reasonable."

The court also disagreed with industry that EPA was required to set a work-practice standard during those malfunction periods.

In another loss for industry challengers, the D.C. Circuit upheld EPA's "pollutant-by-pollutant" approach in the three rules. Instead of setting control technology that best controlled all hazardous pollutants in the aggregate, EPA set different standards for different pollutants.

Industry had objected to that approach, arguing that it resulted in emissions standards that no single unit in a subcategory in the rule could attain. The court, however, today said EPA's method was a "reasonable interpretation and application of the statute."

The court further rejected industry challenges to EPA's requirement that sources with existing boilers perform an energy assessment that identifies measures facilities can take to reduce energy demand.

Industry had claimed the assessment exceeded EPA's authority, but the court today ruled that EPA adequately explained its reasoning in requiring the analysis.

"Industry petitioners misapprehend both the scope of the assessment and the [Clean Air Act]," the decision says.

The court also rejected industry claims that EPA should have created more lenient emission standards for hydrogen chloride based on health. Industry had contended that EPA's decision to not set weaker standards for the pollutant was incorrectly based on cumulative effects from sources and co-benefits.

The court also upheld EPA's record-keeping requirements under the solid waste incinerator rule and its requirements for units that operate in cold climates, typically in Alaska. Judges rejected some industry arguments that EPA should have allowed facilities to average hazardous air pollutant emissions under the incinerator rule.

Twitter: @apeterka Email: areilly@eenews.net

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