NJDEP Publishes Presumptive MACT Proposal for ICI Boilers

September 22, 2009
MGKF News Flash

EPA had promulgated federal regulations establishing maximum achievable control technology ("MACT") requirements for certain industrial, commercial and institutional boilers and process heaters (collectively "ICI Boilers") located at major stationary sources of hazardous air pollutants ("HAPs") (the "Boiler MACT"). In response to a challenge by certain environmental and government organizations, the United States Court of Appeals for the District of Columbia Circuit vacated the Boiler MACT in June 2007.

The federal Clean Air Act provides, in Section 112(j), that a source included within a category identified by EPA for MACT regulation (like ICI Boilers), but for which EPA has not finally promulgated regulations, must undergo a case-by-case MACT determination by the state permitting authority (the so-called "MACT Hammer"). Although ICI Boilers located at major HAP sources became subject to the MACT Hammer shortly following the Court's opinion, virtually all states had determined not to proceed with state-specific MACT determinations, anticipating that EPA would publish a revised federal rule.

Although EPA has made some progress in its development of a revised Boiler MACT, states have initiated efforts to satisfy their statutory obligations under the MACT Hammer. New Jersey has taken a step to be among the more aggressive of these states. In particular, on September 21, 2009, the New Jersey Department of Environmental Protection ("NJDEP") published a proposed presumptive MACT standard for affected ICI Boilers. The proposed standard is interesting in several respects.

First, based on the proposed standard, NJDEP would extend the Boiler MACT requirements to all ICI Boilers, regardless of size, if located at a major HAP facility. Some have argued that application of the MACT Hammer should be limited to ICI Boilers which themselves are major sources of HAPs.

Second, in developing the presumptive MACT approach, NJDEP relied upon guidance developed by the National Association of Clean Air Agencies ("NACAA"). The NACAA Guidance, published more than one year ago, is generally regarded as substantially more stringent than the original Boiler MACT promulgated by EPA. NJDEP's presumptive MACT proposal would impose emission limitations for carbon monoxide for ICI Boilers combusting natural gas, No. 2 fuel oil or similar fuels. Sources combusting fuels heavier than No. 2 fuel oil would also be subject to emission standards for particulates. The presumptive MACT standard would also impose recurrent stack testing or continuous emission monitoring system ("CEMS") requirements for all but the smallest boilers which would instead be subject to annual combustion process adjustments.

The NJDEP publication also preserves to sources the ability to propose a different case-by-case MACT standard. However, a source owner would face a significant burden in demonstrating that case-specific factors justify less stringent HAP control requirements than those included within NJDEP's presumptive MACT standard.

NJDEP will accept comment on the draft presumptive MACT standard through October 21, 2009.