Representing the Interests of America’s Industrial Energy Users since 1978

May 20, 2011 

VIA E-DOCKET

The Honorable Lisa P. Jackson 

Administrator 

Room 3000 

U.S. Environmental Protection Agency 

1200 Pennsylvania Avenue, NW 

Washington, D.C. 20460 

Re: Petition for Administrative Stay of (1) the National Emission Standards for Hazardous 

Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers, 76 

Fed. Reg. 15,554 (Mar. 21, 2011) (Docket No. EPA-HQ-OAR-2006-0790) and (2) 

the Identification of Non-Hazardous Secondary Materials That Are Solid Waste, 76 

Fed. Reg. 15,456 (Mar. 21, 2011) (Docket No. EPA-HQ-RCRA-2008-0329). 

Dear Administrator Jackson: 

The Council for Industrial Boiler Owners (CIBO) respectfully requests a stay of (1) the National 

Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and 

Institutional Boilers, 76 Fed. Reg. 15,554 (Mar. 21, 2011) (Docket No. EPA-HQ-OAR-2006-0790) 

(the Area Source rule) and (2) the Identification of Non-Hazardous Secondary Materials That Are 

Solid Waste, 76 Fed. Reg. 15,456 (Mar. 21, 2011) (Docket No. EPA-HQ-RCRA-2008-0329) (the 

NHSM rule) pending reconsideration. CIBO joined the April 27, 2011 Joint Industry Petition to stay 

the Boiler MACT and CISWI rules,1

 which was granted by EPA May 16, 2011.2 Nevertheless, due to 

the interdependency of all four rules, and the harm imposed by the Area Source and NHSM rules, 

CIBO urges EPA to stay the Area Source and NHSM rules as well. 

CIBO is a broad-based association of industrial boiler owners, architect-engineers, related equipment 

manufacturers, and university affiliates with members representing 20 major industrial sectors. CIBO 

 

1

 76 Fed. Reg. 15,608 (Mar. 21, 2011) (Boiler rule); 76 Fed. Reg. 15,704 (Mar. 21, 2011) 

(CISWI rule). 

2

Industrial, Commercial, and Institutional Boilers and Process Heaters and Commercial and 

Industrial Solid Waste Incineration Units, Final rules; Delay of effective dates, --Fed. Reg.—(Web 

Release May 16, 2011). 
2

members have facilities in every region of the country and a representative distribution of almost 

every type of boiler and fuel combination currently in operation. CIBO was formed in 1978 to 

promote the exchange of information within the industry and between industry and government 

relating to energy and environmental equipment, technology, operations, policies, law and regulations 

affecting industrial boilers. Since its formation, CIBO has been active in the development of 

technically sound, reasonable, cost-effective energy and environmental regulations for industrial 

boilers. CIBO supports regulatory programs that provide industry with enough flexibility to 

modernize – effectively and without penalty – the nation's aging energy infrastructure, as 

modernization is the key to cost-effective environmental protection. 

SUMMARY OF PETITION 

On March 21, 2011, EPA promulgated four interrelated rules – the Boiler MACT, Area Source, 

CISWI and NHSM rule – that combined impose an unprecedentedly complex and costly set of 

requirements on boilers and process heaters. EPA recognized in promulgating these final rules that 

there were old issues that were not addressed and new issues the Agency failed to address, to such an 

extent that EPA announced in advance of publication of the rules that it would reconsider certain 

aspects of 3 of the 4 rules Clean Air Act (CAA) §307(d)(7)(B). 

In advance of releasing the final rules and announcing a reconsideration, EPA formally expressed 

concerns that the judicial deadlines would restrict its ability to promulgate coherent, well-developed

rules. EPA received over 4,800 comments in response to the proposed rules, many of which raised 

issues that EPA had not fully considered and that provided substantial additional data. That data now

raises questions about some of the Agency's initial conclusions. In the lawsuit unrelated to the merits 

of the rules, in which EPA had joined with environmental plaintiffs to recommend deadlines for the 

rules’ completion, EPA sought from the D.C. District Court a 16-month extension so that it could 

more fully analyze and address the technical implications raised by the commenters. EPA cautioned 

the court that the un-reviewed data in the comments "may materially affect important decisions 

relating to source categories and coverage for the final emissions standards."3

 Unfortunately, the 

Court denied this request, although an extension would have best served the public interest and given 

EPA an opportunity to ensure that the final rules were logical outgrowths of the proposals and that the 

standards were attainable by covered sources. 

On March 21, 2011, EPA finalized the rules according to the timeline EPA had negotiated with 

environmental plaintiffs. However, EPA also issued a Notice of Reconsideration of certain issues of 

the Boiler MACT, Area Source, and CISWI rules. 76 Fed. Reg. 15,266. In announcing its decision 

to reconsider parts of the rules under §307(d)(7)(B) of the Clean Air Act, 42 U.S.C. §7607(d)(7)(B), 

EPA emphasized that it was seeking additional input on difficult technical issues identified during the 

public comment period, as well as comments on several centrally relevant issues in the final rules 

which arose after the public comment period had ended. EPA did not notice a reconsideration of the 

NHSM. 

 

3

Sierra Club v. Lisa P. Jackson, Adm'r, EPA, No. 01-1537 (D. D.C. filed Dec. 07, 2010) 

(EPA's Mem. in Supp't of Motion to Amend Order of March 31, 2006 at 2). 
3

The concurrent announcement of a final rule and its reconsideration is to our knowledge 

unprecedented in the history of EPA rulemaking. It is not unsual for EPA to delay deciding on 

reconsideration petitions until well into the litigation challenge of the rule. The recent Portland 

Cement MACT (PC MACT) rulemaking proceedings reflects that practice. On May 11, 2011, EPA 

released its decision granting reconsideration of certain provisions of the PC MACT rule, just days 

before the date on which Petitioners must file their opening brief in the case. Here, however, EPA 

was so certain of the procedural irregularities and lack of confidence in the substance of its rulemaking 

that it announced reconsideration sua sponte upon the signing of the rule. 

The final Area Source and NHSM rules will take effect May 20, 2011, triggering compliance 

obligations and a three-year period for all covered sources to come into compliance with the emission 

standards and only one year for Area Source units to comply with the tune-up requirement. The 

emission standards apply to new sources for which construction began after the June 4, 2010 proposal 

date of the rules. Notwithstanding that EPA itself determined a need for reconsideration of the rules

due to the existence of "certain issues of central relevance to these rules [that] arose after the period for 

public comment or [that] have been impracticable to comment upon,"4

 EPA did not stay the 

compliance period or new source applicability dates in conjunction with its notice of reconsideration. 

The continued running of this compliance period now and while the rules are being reconsidered will 

require CIBO members to take action and expend resources to comply with rules that EPA has 

already declared is subject to change. A stay will best advance the public interest by enabling covered 

sources to allocate resources toward complying with the actual standards, rather than potentially 

interim standards. Staying the effectiveness of the rules will not diminish the environmental 

protections that EPA aims to accomplish under either the current or the reconsidered rule. 

Considering this and for the reasons stated more fully below, EPA should use its authority under 

§301(a) and §307(d) of the Clean Air Act, and §705 of the Administrative Procedure Act to stay the 

Area Source rule and NHSM rule requirements for affected sources to allow the full three-year 

compliance period to begin only once a final decision on reconsideration is reached. 

I. EPA HAS AUTHORITY TO GRANT A STAY OF THE AREA SOURCE AND 

NHSM RULES. 

Pursuant to CAA §307(d)(7)(B), Congress authorized EPA to stay the effectiveness of rules 

promulgated under the Clean Air Act for up to three months to accommodate the time needed for 

administrative reconsideration.5 In its March 21, 2011 Notice of Reconsideration, EPA specified 

deficiencies in the Boiler, the Area Source, and CISWI rules. Invoking CAA §307(d)(7)(B), EPA 

provided several justifications. EPA noted that “reconsideration and additional opportunity for public 

review and comment should be obtained” for some provisions and for others, “further revisions may 

be warranted because they involve issues of central relevance that arose after the period for public 

comment or may have been impracticable to comment on.” 76 Fed. Reg. 15,267. EPA also noted that 

some issues raise “difficult technical issues that we believe may benefit from additional public 

involvement.” Id. EPA has acknowledged that its sua sponte objections to the rules satisfy the CAA 

§307(d)(7)(B) standard for reconsideration. CIBO and other parties will petition EPA to reconsider 

 

4

 76 Fed. Reg. 15,267. 

5

 42 U.S.C. §7607(d)(7)(B). 
4

other aspects of these rules as well. Considering this, a stay is clearly warranted for the Area Source 

and NHSW rules. 

Congress granted EPA additional independent authority to grant a stay beyond 3 months. CAA 

§301(a)(1) authorizes EPA to "prescribe such regulations as are necessary to carry out his functions 

under the Act." A stay of the rule is necessary for EPA to conduct the reconsideration rulemakings for 

these 4 interrelated rules, without which the rules will impose compliance obligations that may not be

consistent with the final outcomes of the rules, assuming those outcomes are not pre-judged. 

Furthermore, under §705 of the Administrative Procedural Act (APA), EPA may "postpone the 

effective date of action taken by it, pending judicial review" when "justice so requires."6 The Boiler 

and CISWI rules are pending judicial review.7 With respect to the Area Source and NHSM rules, 

petitions for review, if not already filed, will be on file with the D.C. Circuit by the time EPA makes 

its decision on the stay of those rules. For the reasons stated below, justice requires that EPA stay the 

Area Source and NHSM rules. 

In considering whether to grant a stay of its rules, EPA has applied criteria used by courts to judge the 

appropriateness of a stay of a rule: likelihood of success on the merits, irreparable harm to petitioner if 

the stay is not granted, harm to other parties interested in the proceeding, and consideration of the 

public interest. These criteria are considered by courts when deciding whether to stay final action 

taken by and authorized by other branches of government (action by the executive branch 

implementing laws adopted by the legislature). The judicial standard for a stay is therefore 

appropriately restrictive. However, the CAA and APA do not impose this standard on decisions by 

agencies when determining whether to stay their own rulemakings, but provide broad discretion. The 

CAA authority is bounded only by an implicit standard of rationality; the APA requires only that the 

agency concludes that “justice so requires” the stay. In any event, the present circumstances meet 

both the CAA/APA discretionary and the more restrictive judicial standards for a stay. Justice 

requires a stay. In addition, CIBO members will be irreparably harmed absent a stay, other interested

parties will benefit by the stay and staying the rule is consistent with the public interest. EPA should 

base its decision whether to grant a stay on the standard Congress provided when deciding whether to 

stay its own regulatory decisions while undertaking further related regulatory action. 

II. JUSTICE REQUIRES EPA STAY THE RULE.

 

By its concurrent final rule/reconsideration notice, EPA acknowledges that it failed to meet its 

procedural obligations under CAA §307 in promulgating the rules. The EPA notice plainly states that 

issues of central relevance arose after the period for public comment. Among the issues EPA 

identified as central and arising after the period for public comment are elements as fundamental as 

standards and definitions, for example, the dioxin emission limit and testing requirement for major 

source boilers, PM standards for oil-fired area source boilers; the definition of “homogenous waste” 

under the CISWI rule, which is a key term to defining applicability of the rule to sources; and 

 

6

 5 U.S.C. §705. 

7

See United States Sugar Corp. v. EPA, D.C. Cir., No. 11-1108 (Apr. 4, 2011 ); American 

Forest & Paper Association, et. al. v. EPA, D.C. Cir., No. 11-1124 (Apr. 29, 2011); and American 

Forest & Paper Association, et. al. v. EPA, D.C. Cir., No. 11-1125 (Apr. 29, 2011). 
5

requiring sources to meet the criteria of affirmative defense for malfunction events for major and area 

source units and CISWI units. 76 Fed. Reg. 15,267. 

Under CAA §307(7)(B), where it can be demonstrated that the standard for reconsideration is met, the 

Administrator “shall convene a proceeding for reconsideration of the rule.” The law goes on to 

require that the Administrator “provide the same procedural rights as would have been afforded had 

the information been available at the time the rule was proposed.” Procedural rights include the 

opportunity to review the agency’s proposal and underlying data and analysis, submit comment on the 

proposal, an agency decision based on information submitted during the comment period. Implicit in 

these rights is an administrative process whose outcome is not pre-judged. CAA §307. Once the rule 

is promulgated and effective, the rule affects the rights and obligations of sources to which it applies. 

Sources must comply with the rule “[a]fter the effective date of any emissions standard. . . 

promulgated under this section. . .” CAA §112(i)(3). 

Therefore, procedural rights ensure that affected parties have the opportunity to participate in the 

rulemaking process prior to taking on the compliance obligations of the final rule, which permanently 

alter their legal obligations and liabilities. Here, EPA admittedly failed to meet its CAA obligations, 

finalized the rules, announced reconsideration, but thus far has failed to provide any remedy for the 

sources subject to the compliance obligations and liabilities imposed by the rule. If the highly unusual 

circumstances of these rulemakings do not meet the CAA deferential standard and the APA standard 

of “as justice so requires,” what circumstances would? 

EPA’s failure to protect the procedural rights of sources relate to foundational elements of the rule. 

For example, for small power production and cogeneration qualifying facilities that burn homogenous 

waste that are now expressly exempt from CISWI §129 standards (pursuant to CAA §129(g)(1)), EPA 

failed to protect their procedural rights in defining “homogenous waste” in the final rule. The result is 

dramatic, because those sources are now not certain whether they remain under the statutory 

exemption of §129. If indeed the outcome of EPA’s reconsideration proceeding is not pre-judged, and 

there is a possibility that the definition of homogenous waste will be amended to provide certainty that 

sources will remain exempt from §129, then consistent with its protection of procedural rights, EPA 

should ensure that the improperly promulgated rules will not be effective and require those sources to

comply with §129 in advance of a truly final decision on its applicability to those sources. 

Another dramatic outcome that EPA should address fully before sources must comply is the 

possibility that existing major and area source boilers now subject to §112 standards could become 

subject to §129 standards immediately upon the effectiveness of the NHSM rule. A CISWI unit is 

defined as a unit that “combusts. . . any solid waste.” 76 Fed. Reg. 15,762. Both the CISWI and 

NHSM rules take effect on May 20, 2011. In the ordinary course, a boiler operator would make the 

decision to burn a solid waste with knowledge that the unit would subsequently be classified as a 

CISWI unit and there would be some planned-for transition period into that source category. 

However, sources are legitimately concerned that under a plain reading of the rules, major and area 

source boilers that combust a material being newly classified as "solid waste" as of May 20, 2011 

could be considered CISWI units as of that date. Further, even with EPA's May 16, 2011 stay of the 

effective date of the CISWI Rule, it remains unclear whether units making the boiler MACT to 

CISWI unit transition would immediately be subject to the CISWI standards promulgated in 2000, 

subsequently implemented by the states or other regulatory authorities, and currently in effect prior to 

SIP revisions which will include the revised CISWI requirements. 
6

In addition to these and other foundational elements of the rules such as the dioxin/furan emission 

limits for major source boilers already identified by EPA, are many that have been and will be 

identified by affected sources in petitions for reconsideration. EPA will review these petitions and 

carefully discern which issues are appropriate for reconsideration. In the meantime, however, the 

rules continue to apply to new sources and existing sources that have no choice but to plan for 

compliance with flawed rules while EPA first decides which issues should be reconsidered and then 

undertakes that process. Covered sources are not in a state of suspension while EPA rewrites portions

of the rules, but must adapt to new compliance obligations or risk rule violation. 

III. CIBO MEMBERS WILL BE IRREPARABLY HARMED ABSENT A STAY DUE TO 

UNCERTAINTY AND THE INTERDEPENDENCY OF THE BOILER MACT, 

AREA SOURCE, CISWI AND NHSM RULES. 

A. Changed Contained Gas Definition Upends Current Source Category 

Applicability. 

CIBO members will be irreparably harmed pending EPA’s resolution of the definition of "contained 

gas." In the final CISWI rule, and without any indication of this significant change in agency 

interpretation during the rulemaking process, EPA removed a key definition from existing CISWI 

regulations that defines how EPA views “solid waste” with respect to contained gases. In addition, in

its Response to Comments (RTC) on the NHSM Rule, EPA suggests that gases in pipelines are solid 

wastes under RCRA unless specifically exempted. This contradicts EPA’s longstanding position that 

gases in pipelines are not “contained” gases that are solid waste under RCRA. 

This change in interpretation effectively redefines boilers, process heaters, and other combustion 

devices (e.g., thermal oxidizers, vapor incinerators, and other devices) that combust process vent 

streams and other gases as CISWI units (as opposed to Boiler MACT units) if the gas that is 

combusted does not meet the legitimacy and generator control criteria. This interpretation was not in

the proposed rules and EPA provided no notice of this change during the rulemaking process. 

Industries planning to start up new sources would have to expend significant, unplanned effort and 

capital to meet CISWI requirements because of an unprecedented interpretation of the definition of 

solid waste. Affected industries must have certainty that this interpretation of the regulation will not 

change before having to make additional steps to comply with requirements of a different CAA 

provision. 

On May 13, 2011, EPA released a letter addressing this issue and apparently indicating that it did not

intend to alter its longstanding definition of contained gas and the treatment of uncontained gas 

streams under RCRA. This interpretive letter apparently signals EPA’s intended resolution of this 

issue, and CIBO appreciates EPA’s swift response to this concern. However, EPA must still address 

the issue in a revised final rule, to ensure consistent regulatory treatment of contained gas and remove 

any possible doubt about EPA’s interpretation. More importantly, this issue could be raised in judicial 

challenges to the rules, and EPA’s interpretation should be made formal final agency action for that 

purpose. 
7

B. Sources May Be Redefined Into Standards That May Change During 

Reconsideration. 

When effective, the NHSM rule will define the boundaries for many categories of units subject to 

standards found in the Boiler, Area Source, and CISWI rules. It is not clear whether or how the 

underlying standards will change post-reconsideration. As pointed out in the Joint Industry Petition to 

Stay the Boiler and CISWI rules, certain major sources will become CISWI units depending on the 

final definition of solid waste. While many of these are boilers and indirect-fired process heaters that 

otherwise would be subject to the Boiler rule, others are currently subject to existing MACT standards

such as direct-fired process heaters subject to the PCWP MACT, and have made investments to and 

are complying with those MACTs. Certain area sources could also be forced into the CISWI category 

based on the final definition of solid waste. These units should not be forced to make capital 

expenditure decisions based on a solid waste definition that will not be truly final until after 

reconsideration. It is unreasonable for EPA to put the owners of all industrial, commercial and 

institutional boilers nationwide in a situation of compelled decision-making in the face of such 

extreme uncertainty. 

Most companies have limited supplies of capital available for each budget cycle. Capital investment 

decisions are made in different ways by different entities. Generally, however, industrial decisionmaking comes down to individual facility and product economics, and whether continuing operation 

can support such investment or whether other alternatives (including shutdown) are in order. With 

each emission standard EPA promulgates, businesses need to decide, in accordance with their 

resource allocation schedule, whether to install emissions controls, whether to shutdown units for 

which controls will be too expensive, or whether to replace units determined to be unable to meet the 

emissions limits with new combustion units and emissions control devices. These decisions require 

significant lead-time (especially if new units must be procured) and will result in higher capital costs 

than installing control technology. Companies will be forced to expend significant investments to 

design and secure the equipment, permits, and infrastructure necessary to meet the final rule. For 

example, companies switching to natural gas may need to secure permits for a pipeline corridor to 

transmit natural gas to the facility through a newly constructed pipeline, may need to secure 

transportation on interstate pipelines. For those interstate natural gas pipelines that lack sufficient 

capacity, the process whereby capacity may be offered or constructed is regulated by FERC to protect 

residential and other critical consumers and is indifferent to the deadlines established by the CAA. 

This takes significant capital, and also significant time to secure permits and construct the new 

pipeline. If the standards or key elements of the final rules are adjusted on reconsideration, these 

excess costs/expenditures may well have been rendered unnecessary, and may not even result in 

compliance. At that point, because of the unnecessary capital expenditures already made, companies 

will have even fewer resources to apply toward compliance. 

C. EPA’s CISWI And NHSM Rules And “Other Gas 1” Fuel Category. 

In the preamble to the NHSM rule, EPA discusses burning of manure and digester gas and concluded 

that “if manure is processed into biofuels (for example, by anaerobic digesters), such biofuels would 

be considered a legitimate non-waste fuel that has been processed from a non-hazardous secondary 

material provided ‘‘the biofuel’’ meets the legitimacy criteria”. 76 Fed. Reg. 15,479. EPA’s response 

to comment 3a-B2-1 states that “Biofuels that are produced from non-hazardous secondary materials 

can have contaminants that are somewhat higher than the traditional fuel that otherwise would be 
8

burned and still qualify as being comparable, and would not be considered a solid waste.” How does 

one determine when the contaminants are too high that the biofuel no longer meets the legitimacy 

criteria?

The use of biofuels produced from other organic materials such as wastewater is not specifically 

addressed in EPA’s responses in the rule, therefore it is surmised that these type fuels might also need 

to meet the legitimacy criteria.

In the NHSM rule, EPA clarifies that it is defining the term ‘‘contaminant,’’ as constituents that will 

result in emissions of the air pollutants identified in CAA §112(b) and the nine pollutants listed under 

CAA §129(a)(4) when such non-hazardous secondary materials are burned as a fuel or used as 

ingredients, including those constituents that could generate products of incomplete combustion. 76 

Fed. Reg. 15,524. The air pollutant SO2 is one of the nine pollutants listed in CAA §129(a)(4). 

Therefore, H2S as a contaminant in the non-hazardous secondary materials being burned presumably 

would need to be considered in the legitimacy criteria. This requirement is extremely restrictive since 

the rule could be interpreted to require that the H2S level of biogas would need to be compared to the

H2S level in the traditional fuel, natural gas. Many owners of existing units fueled by biogas will face 

adding expensive equipment necessary to clean the biofuels to natural gas levels which is 

economically infeasible and will force many owners to cease firing the units with the renewable 

biofuel. 

In the Boiler rule, EPA has determined that to the extent that process gases are comparable to natural

gas and refinery gas, combustion of those gases in boilers and process heaters should be subject to the 

same standards as combustion of natural gas and refinery gas (Other Gas 1 rather than Gas 2). (76 

Fed. Reg. 15,639). EPA then defined the concentration levels for “Other Gas 1” fuel as 4 parts per 

million (ppm) H2S and 40 micrograms per cubic meter (ug/m3) of mercury notwithstanding the fact 

that refinery gas is known to contain concentrations of H2S up to 160 ppm.8

Literature indicates that the typical range of anaerobic digester gas is 200 to 3000 ppm of H2S. An 

EPA Best Available Control Technology (BACT) determination identified that digester gas meeting a 

concentration of 200 ppm is BACT. The EPA Boiler MACT database indicates the average biogas 

sulfur level to be 2100 ppm. Therefore a very large number of fuels from anaerobic digesters will not

meet the legitimacy criteria in the NHSM rule or Other Gas1 category under the Boiler rule. 

The result of the NHSM rule and the Other Gas1 category under the Boiler rule is to discourage the 

development of biogas technology and other clean carbon-neutral fuels as viable renewable fuels 

which is counter to the Agency’s policy to encourage the use of renewable fuels. 

The CO limit established for the Gas 2 (other) subcategory whether new (3 ppmvd) or existing (9 

ppmvd) is much too low, as are the CO limits under CISWI (36 ppmvd @ 7% O2, or 36 ppmvd @ 

3% O2 for liquid/gas ERUs). A facility had an indirect-fired process heater combusting biogas and 

was tested under the EPA’s §114 Request for additional information where the CO was tested at about 

90 ppm. It will be uneconomical to control the CO emissions to the above CO emission limits. The 

facility will have to either flare the biogas or discontinue the use of that renewable fuel. The EPA 

 

8

 CIBO addresses the H2S limit in its Petition for Reconsideration and does not take a position 

in this Stay Request on the appropriateness of the limit. 
9

should be encouraging the use of biogas and other renewable fuels without placing in doubt the 

regulatory viability of the continued use of these fuels. The net effect of these rules will strongly

discourage the use of renewable fuels such as biogas, landfill gas, and other resources where the clear 

policy direction from Congress in RCRA, EPA's own programs such as the Landfill Methane 

Outreach Program, and policy commitment of this Administration is to encourage the use of 

renewable fuels. 

D. Some CIBO Members Will Be Subject To The 2000 CISWI Rules If The Solid 

Waste Definition Becomes Effective. 

Certain CIBO members burn process emissions waste gas and other materials without energy 

recovery and, although unclear, it appears that upon the effective date of the NHSM rule they may be 

subject to regulation under the CISWI 2000 standard requirements prior to state or other delegated 

authority implementation of the revised CISWI rules. Considering this dilemma, unless EPA stays the 

effective date of the NHSM rule, without allowing for time for reconsideration before it takes effect,

and for some allowance for the inherent delay in state regulatory changes, many sources will be forced

to comply with different standards than those to which they are presently subject or to which they will 

eventually be subject.9

 This would be the case even though the standards and definitions could 

change through the reconsideration process. EPA undertook coordinated drafting for all four of the 

rules referenced in this document. The record does not reflect that EPA anticipated units newly 

subject to CISWI would be subject to the 2000 CISWI rule. 

E. The Uncertainty Surrounding the Rules Could Result in Covered Sources 

Making Contractual Obligations With Unintended Consequences. 

CIBO members must plan expenditures, contracts, and business relationships in advance. Many 

CIBO members must make relatively long-term contracts for the supply of fuel materials to be burned 

in their boilers. With the uncertainty surrounding the four rules, some members may unknowingly 

contract for, depending on the outcome of reconsideration and litigation petitions, what could 

eventually be considered any of 3 fuel material classifications –(1) non-hazardous secondary materials

that are solid wastes, (2) non-hazardous secondary materials that are fuels , or (3) "traditional fuels." 

Some members could wind up subject to CISWI rules when they thought they were contracting for 

traditional fuels simply because aspects of the rules changed during the interim period. The 

compliance preparation and implementation activities, such as engineering costs, testing and 

equipment capital costs, will vary widely depending on which of those fuel material classifications a 

company ends up with, since the fuel material classification largely determines which air emission 

regulation –a MACT or CISWI- will have to be met. This is far too much uncertainty with significant 

potential for stranded and lost cost implications for companies to reasonably bear. This kind of 

situation can cause irreparable harm to the contracting entities which could be prevented with a 

coordinated stay of all four rules. 

 

9

 For example, the final emissions from combustion-based control devices used to meet the 

PCWP MACT process emissions standards. 
10

IV. A STAY IS IN THE INTERESTS OF OTHER PARTIES AND THE PUBLIC 

Other parties interested in the outcome of these rulemakings will benefit from a rational process for 

first completing the reconsideration of these rules and then making the rules effective. As EPA has 

already noticed that it will reconsider certain provisions of the rules and potentially others that are the 

subject of petitions, a stay will ensure that compliance timeframes across the sources covered by the 

rules are coordinated in time and can be monitored in an orderly fashion, including early rule 

requirements and the 3- or 4-year emissions standard compliance requirement, and single facility 

compliance deadlines for major sources and co-located area sources. An orderly, comprehensive 

reconsideration process should also permit EPA to focus on completing the rulemaking process before 

focusing resources on compliance-related issues, which will inevitably arise across every affected 

sector, and will require EPA to respond to sector- and source-specific questions, develop interpretive

guidance, and interpret aspects of its final rules that do not arise until the practical implementation of 

new emission limits and regulatory requirements. An orderly allocation of EPA resources will 

increase the ability of interested parties to stay informed about interpretive developments and increase 

EPA accountability in how the final rules are implemented. 

The public will also be served by a stay. The public has an interest in adherence by agencies to CAA,

APA or other applicable laws governing their administrative processes, especially regarding the 

public’s procedural right to participate in rulemaking and other agency decision-making. Where an 

agency, as EPA did here, announces at the same time as a final rule, that the agency failed to protect

basic right of the public to participate, on very fundamental aspects of the rulemaking, the public has 

an interest in an appropriate remedy and avoidance of deprivation of their rights in the future. Under 

these highly unusual circumstances, an appropriate remedy is to stay the rule until EPA conducts a 

reconsideration process that includes full participation by the public. Given its commitment to 

environmental protection, EPA unquestionably will be committed to conducting a procedurally sound, 

efficient reconsideration process. The increased environmental protections from the revised rule will

be delayed only a short time over the longer term as sources come into compliance over the course of 

3-4 years. Some sources will undoubtedly comply in advance of that timeframe, and some will shut 

down, as EPA has predicted, both of which would yield earlier emissions reductions. 

It is also in the public’s interest that facilities coming into compliance with the rule wisely allocate 

resources, and not be forced to divert scarce resources to compliance planning, procurement 

contracting and other commitments, until they have certainty regarding their compliance obligations. 

These rules are national in scope of coverage as well as in economic impact. EPA estimates there to 

be 13,000 affected sources, and that sources will spend $5.1 billion in capital and $1.8 billion in 

annual costs to comply with the Boiler MACT rule alone.10 EPA estimates there are almost 183,000 

existing affected Area Source boilers that will be required to spend $435 million in annualized costs to 

comply with the Area Source Rule.11 EPA estimates there are 100 existing CISWI sources that would 

be required to spend $706 million in capital and $280 million per year in annual costs to comply with 

 

10 CIBO has carefully reviewed EPA’s cost analysis and inventory data of sources and 

controls required for compliance, and estimates the capital costs of the Boiler rule to be at least $10 

billion, at least two times greater than what EPA estimates. 

11 76 Fed. Reg. 15,579 (Mar. 21, 2011). 
11

the CISWI rule.12 “Sources” are workplaces across the nation’s cities and towns and rural areas. 

Capital used for regulatory compliance is capital not allocated to product development and growth of 

publicly traded companies. When EPA writes regulations that directly mandate capital outlays of this 

magnitude, it is certainly in the public’s interest that the regulatory process be transparent with full 

public participation before facilities nationwide must begin to allocate those resources. 

CONCLUSION 

For all the foregoing reasons, CIBO respectfully requests EPA stay, in addition to the Boiler MACT 

and CISWI rules, the Area Source and the NHSM rules. 

Sincerely yours, 

/s/ Robert D. Bessette 

Robert D. Bessette 

President 

 

12 U.S. EPA, Regulatory Impact Analysis: Standards of Perfomance for New Stationary 

Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste 

Incineration Units, at 2-2, February 2011.