Western Business Roundtable | 14405 West Colfax Avenue, #159 | Lakewood, CO 80401 | 1-800-410-1050 

info@westernroundtable.com | www.westernroundtable.com

The opinions expressed in this letter represent the views of a majority of Roundtable Members, but not necessarily all of our members. 

 

 July 15, 2011

 

 

The Honorable Lisa P. Jackson, Administrator 

U.S. Environmental Protection Agency 

Ariel Rios Building 

1200 Pennsylvania Avenue, N.W. 

Mail Code: 1101A 

Washington, DC 20460 

RE: National Emission Standards for Hazardous Air Pollutants-- Reconsideration

Dear Administrator Jackson: 

On March 21, 2011, the Environmental Protection Agency (EPA) published a new rule under the Clean 

Air Act (CAA), entitled “National Emission Standards for Hazardous Air Pollutants for Major Sources: 

Industrial, Commercial, and Institutional Boilers and Process Heaters” (“Boiler MACT”)1

. At the same 

time, the Agency announced its intention to initiate reconsideration of the rule.

2

 

I am writing, on behalf of the multi-sector membership of the Western Business Roundtable, to thank the 

Agency for its reconsideration of the “Boiler MACT” rule. For all the reasons outlined in these 

comments, we strongly urge the Agency to rescind the rule and start over.

The Boiler MACT rule requires the use of Maximum Achievable Control Technology (“MACT”) for 

reducing hazardous air pollutant (“HAP”) emissions from institutional, commercial and industrial boilers. 

Boiler MACT will apply to boilers located at “major” sources of HAPs (those emitting 10 tons per year or 

more of a single HAP or 25 tons per year of any combination of HAPs). According to EPA, there are 

approximately 13,800 “major source” boilers, mostly located at large industrial facilities or manufacturing 

plants. 

EPA plans to use a companion rulemaking, the “Area Source Rule,” to regulate minor sources of HAPs. 

The Area Source Rule will affect a variety of facilities, both industrial and non-industrial. EPA estimates 

about 187,000 minor sources (including facilities such as restaurants, schools, churches, farms, etc.) 

currently exist.

Boiler MACT is terribly complex. It involves controls/monitoring standards for 11 subcategories of 

boilers and process heaters that vary in design and fuel type. Sources will be required to conduct 

emissions testing and comply with standards of control that vary by boiler size, feedstock and available 

technologies. For most major facilities pulled under Boiler MACT, compliance will require either 

switching fuels or installation of multiple emissions-control technologies. 

1 76 Fed. Reg. 15,554, March 21, 2011

2

 76 Fed. Reg. 15,266, March 21, 2011
Our comments focus on the triple set of flaws we find most troubling about Boiler MACT: it was crafted 

under a distorted regulatory process/timeline; it is technically flawed; left unchanged, the rule will be 

extremely costly to the nation’s industrial and manufacturing sectors and, ultimately, the U.S. economy. 

 

ABOUT THE ROUNDTABLE 

The Roundtable is a broad-based coalition of companies doing business in the Western United States. 

Our members are engaged in a wide array of enterprises including: engineering, construction, 

communications, manufacturing, retail sales, refining, iron and steel, mining, electric power generation, 

and oil and gas exploration, development and distribution. We work to defend the interests of the West 

and support policies that encourage economic growth and opportunity, freedom of enterprise and a sound 

approach to conservation and environmental preservation. 

The Boiler MACT rule poses very real challenges for Western industrial operations, many of which 

depend on the region’s abundant coal resources to fuel their boilers. 

REGULATORY PROCESS CONCERNS 

Boiler MACT is a cautionary tale for why the growing trend of using courts to dictate regulatory 

outcomes – which has come to be known as “regulation by consent order” – is so dangerous. Here, 

Agency actions have been driven by advocacy groups and federal courts, not good data. The process is so 

distorted that the Agency itself has been forced to distance itself from its own regulatory product. 

In filings with the D.C. District Court seeking an extension of time for the rulemaking process, EPA 

noted it “received over 4,800 individual comments” in response to the proposed standards that “raise[d] 

issues that EPA had not fully considered and also provided substantial additional data that raise 

questions about some of the Agency’s initial conclusions.”3

 EPA admitted that comments filed “may 

materially affect important decisions relating to source categorizations and coverage for the final 

emissions standards.”4

While EPA tried to get court approval to extend the deadline for issuance of the rule, the Court refused. 

Thus, EPA was forced to move forward with issuance of regulations it openly admitted are technically 

flawed. 

It is this kind of process distortion that has spurred the growing push for federal regulatory reform. As we 

detailed in our recent filing with EPA regarding its regulatory reform plan, we are very concerned by 

EPA’s overall approach to decision-making, which is indicative of a broader trend exhibited across the 

Obama Administration: the side-stepping of formal rulemaking processes set forth in the Administrative 

Procedures Act (“APA”) and various enabling statutes in favor of unilateral regulation through the use of 

Executive Orders, Secretarial Orders, agency guidance, interim rules, draft policies, reinterpretation 

policies and, yes, legal “consent agreements.”5

 

 

3 EPA Motion for Extension 2, Sierra Club v. Jackson, No. 1:01CV01537 (D.D.C Dec. 7, 2010) 4 Id. 5 Roundtable Comments, EPA Request for Comments on Improving EPA Regulations, Pursuant to Executive Order 13563, “Improving 

Regulation and Regulatory Review,” April 4, 2011 

http://www.westernroundtable.com/Portals/0/Docs/RegReform/WBRT_comments_EPA_RegReform_4-11_FINAL.pdf 
TECHNICAL CONCERNS 

The Boiler MACT rule includes emission standards for mercury, particulate matter (PM) as a surrogate 

for non-mercury metals, and carbon monoxide (CO) as a surrogate for organic HAP. Emissions of 

hydrogen chloride and dioxins and furans would also be regulated at major sources. 

The Council of Industrial Boiler Owners (CIBO) filed a petition for reconsideration of the Rule on May 

20, 2011. That document lays out, in detail, the full range of technical problems with the Boiler MACT 

rule. The Roundtable wishes to incorporate those concerns, by reference, into our comments here.6

We would like to emphasize several threshold problems with EPA’s approach under Boiler MACT: 

 EPA Set Unrealistic Standards Based on Theoretical Scenarios 

The biggest problem with Boiler MACT is the fact that EPA cherry-picked the so-called “best 

performing” sources upon which to base the standards. Worse yet, it set MACT based on 

unrealistic criteria. 

Under CAA, MACT standards for existing sources must be at least as stringent as the emissions 

achieved by the best-performing 12 percent of existing sources in the relevant category or 

subcategory. The standards for new sources cannot be less stringent than the controls achieved by 

the best-controlled similar source. 

Here, EPA did something different. It formulated the standards based on the “best performing” 

emissions levels for each pollutant—not emissions in the aggregate for the source. The result 

was a performance level no source can meet. In fact, EPA has had to admit that none of the best 

performers evaluated by the Agency can meet the new limits for all the regulated emissions. 

Clearly, EPA needs to go back to the drawing board. Any standard needs to reflect the “best of 

class” among actual boilers, not the hypothetical boiler used as a basis for the standards in this 

rule. 

 EPA Fails to Support Its Decision to Use PM as a Surrogate

EPA elected to use PM as a surrogate for the emissions of non-mercury metallic HAPs from 

industrial boilers and process heaters. However, as EPA acknowledges, metallic HAP emissions 

are “fuel-based pollutants” that are direct results of contaminants in the fuels that are combusted.7

 

Contaminants in a fuel do not establish a reasonable correlation between metallic HAPs and PM 

emissions, and in the absence of such a correlation the use of a surrogate is not justified. 

 EPA Applied a “No-Threshold” Standard 

EPA utilized a “no-threshold” standard to the regulation: emissions are treated as if they cause 

health effects at any level of exposure. That makes the emissions limits much more strict (and 

 

6 CIBO petition for EPA reconsideration: http://www.cibo.org/pubs/bmactpetition.pdf 7 76 Fed. Reg. 15612 
more costly) than they would have been under a “health-based” standard (i.e. a standard that 

recognizes some level below which exposure is not a health concern). EPA claims it lacks the 

information necessary to set health-based standards. If that is true, on what basis does the Agency 

calculate the health benefits of the rule? 

ECONOMIC CONCERNS 

A study by the economic forecasting firm IHS Global Insight, prepared for the Council of Industrial 

Boiler Owners, put the cost of Boiler MACT at $20 billion. 

The industrial and manufacturing sectors are major sources of domestic jobs and produce products crucial 

to the U.S. economy. This rule, especially when combined with a variety of other oppressive rules 

emanating from EPA and other agencies, are draining these sectors of the resources they need to survive. 

Particularly instructive on this point are analyses put together by a number of the industries that would be 

forced to comply. We ask that you give careful consideration to the following: 

 CIBO has done detailed analysis of what the compliance costs would be for various categories of 

boilers.8

 

 On April 27, 2011, a broad cross-section of industries impacted by the rule filed a petition for 

administrative stay, pending reconsideration with the Agency. As part of that filing, each 

industry provided an analysis of the impacts for its sector.9

 

The capital costs to install expansive new emissions controls come at the expense of investments in 

productivity. In many cases, the costs are prohibitive enough to such cause plant closures and job losses. 

To the extent the regulatory costs reduce output, suppliers would also be affected. The economic ripples 

would quickly extend to the broader economy...an economy that is already anemic at best. 

CONCLUSION 

For all the reasons outlined in these comments, we strongly urge the Agency to rescind the rule and start 

over. 

Thank you for your consideration of these comments. 

 

8

 Analysis of impacts on various types of boilers, Council of Industrial Boiler Owners: http://www.cibo.org/issues.htm

9

Petition of Administrative Stay Pending Reconsideration, April 27, 2011, Appendix 1 -- The American Forest & Paper Association, National 

Association of Manufacturers, American Chemistry Council, American Coke and Coal Chemicals Institute, American Home Furnishings

Alliance, American Iron and Steel Institute, American Municipal Power, Inc., American Petroleum Institute, American Wood Council, Biomass 

Power Association, U.S. Chamber of Commerce, Corn Refiners Association, Council of Industrial Boiler Owners, Florida Sugar Industry (joined 

by sugarcane processors in Texas and Hawaii), National Oilseed Processors Association, Rubber Manufacturers Association, Society of Chemical 

Manufacturers and Affiliates, Treated Wood Council 

http://www.chamberlitigation.com/sites/default/files/cases/files/2011/Petition%20for%20Administrative%20Stay%20Pending%20Reconsideratio

n%20of%20Boiler%20Rules%20%28NCLC%20Motion%29.pdf
Holly Propst 

Executive Director / General Counsel 

Western Business Roundtable 

14405 West Colfax Avenue, #159 

Lakewood, CO 80401 

1-800-410-1050