Boiler MACT and CISWI: To Comment or Not to Comment?… that is the question.

To associate Shakespeare and the Boiler MACT/CISWI regulations is quite a stretch I know, but I believe that the decision “to comment or not to comment” is as metaphorically significant as Hamlet’s “to be or not to be” and certainly answers the question of what to do next. In ALL4’s recent Boiler MACT Webinar Series, we touched on the importance of commenting during each of our sessions. The ability to influence applicability determinations, emission standards, monitoring techniques, and compliance timelines all present themselves in the commenting process. Equally important, the act of submitting comments preserves the ability to challenge the regulations in the future. In most comment submittals, the comments contain a combination of legal and technical issues. Our discussions with members of the legal and the regulated manufacturing communities indicate that many believe that the legal merits of the proposed Boiler MACT and CISWI rules have already been addressed and challenged in the Hospital/Medical/Infectious Waste Incinerator (HMIWI) rules (60 CFR Part 60, Subparts Ce and Ec). Most legal and industry insiders believe that any decisions made on that HMIWI case will have an obvious “trickle down” effect on the other regulations. As such, many potential commenters are focusing on the technical issues in the comment process. 

ALL4 was part of the team that developed HMIWI rule comments on behalf of the Medical Waste Institute (MWI) and the Integrated Waste Services Association (IWSA) – now known as the Energy Recovery Council (ERC). The comments included over 90 pages of legal and technical arguments. While the legal arguments are still playing out, there was considerable progress on the technical comments. From a 50,000 foot level, ALL4 highlights the following lessons learned: 

1. The comments made a difference – emission limits were changed between the proposed rule and the final rule. All of the changes resulted in less stringent emission limits in the final rule. 
2. It takes a lot of time and money to develop meaningful comments – the effort involved to develop substantive comments in significant. The work involves the joint effort of environmental, operations, legal, and statistician personnel. 
3. U.S. EPA wanted to get the right data and develop the emission standards based on an approach currently in place – while there are still legal arguments around how the top 12% performing units should be selected (i.e., pollutant-by-pollutant vs. unit-by-unit overall performance), U.S. EPA was open to receiving additional data and applied statistical analyses to the data to develop the emission limits. 
4. U.S. EPA appears to be tied to the rulemaking schedule dictated to them – comments were considered in context with how they could be incorporated while still ensuring that the rule would be finalized consistent with the schedules laid out by the Court. 

Several of the issues around the HMIWI rule are very similar to the types of issues that are associated with the Boiler MACT and CISWI rules: 

• Concerns about the quality, accuracy, and completeness of the test data that was relied upon to develop the proposed emission limits. 
• Concerns about the operating conditions under which the emission test data (and resulting emission limits) were developed (i.e., steady state, optimum conditions vs. startup/shutdown/malfunction, variable operating conditions). 
• Rule development input from both the legal and technical arms of U.S. EPA. 

In the case of the HMIWI rules, comments led to emission limit revisions that benefited industry based on comments from interested parties. That result alone is pretty compelling when facing the question of “To comment or not to comment.”