The EPA published a final rule on September 14, 2016 to once
again revise its maximum achievable control technology (MACT)
standard for boilers. In this latest revision, EPA responded to
various requests for reconsideration of its "area source"
boilers rule, the rule that applies only to boilers located at
relatively minor emission sources. The most significant
revision in this latest rulemaking involves changes to the
definitions of "startup" and "shutdown" to
mirror the similar revisions made in EPA's other MACT
rules. That is, the area source boiler rule will now define
startup in two different ways, one of which allows a 4 hour window
during which only work practice standards will apply in lieu of the
otherwise applicable numeric emission limits. EPA also
eliminated the affirmative defense provision for unavoidable
malfunctions, which, until 2014, was the central component of
EPA's policy for addressing emissions resulting from
malfunctions. However, in light of a recent D.C. Circuit
decision rejecting the malfunction affirmative defense in another
MACT standard, EPA has begun removing those provisions from its
rules, so the decision to eliminate it from the area source boiler
MACT is no surprise. The lack of an affirmative defense or
any other provision to address malfunctions will now leave boiler
owners vulnerable to penalties for emission exceedances even if due
to unforeseeable and unpreventable malfunctions. As important
as what the agency revised, however, is what the agency did not
revise—most notably its decision to maintain a separate
subcategory for "limited use units" subject only to a
5-year tune-up requirement. In its proposed rule, EPA had
sought comment on whether that subcategory should be eliminated,
raising the concern among industry representatives that EPA could
decide to regulate limited use units—those that only operate
for less than 10 percent of their annual capacity—just like
units that operate far more often. In comments, industry
representatives supported the limited use subcategory for a variety
of reasons, including the fact that limited use units would still
be required to tune-up after less total operating time compared to
other units, and the agency agreed. The text of the final
rule may be found here.
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