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Boiler MACT Update: PADEP to Implement "MACT Hammer" for Industrial, Commercial and Institutional Boilers and Process Heaters

On June 8, 2007, the D.C. Circuit Court of Appeals vacated the National Emission Standards for Hazardous Air Pollutants for Industrial, Commercial and Institutional Boilers and Process Heaters, 40 CFR Part 63, Subpart DDDDD ("Boiler MACT"), and remanded the rule to the Environmental Protection Agency ("EPA"). The Boiler MACT, which set a September 13, 2007 compliance deadline for existing sources, established hydrogen chloride, particulate matter, mercury, and carbon monoxide emission limits for various new and existing affected units located at major sources of hazardous air pollutants ("HAPs"). EPA has not yet promulgated a revised version of the Boiler MACT.

Section 112(j) of the Clean Air Act, also known as the "MACT Hammer," establishes a mechanism for states and local agencies to regulate emissions of HAPs, through the development of source-specific MACT standards, in the event EPA fails to promulgate MACT standards for regulated source categories by the applicable deadlines. This mechanism is implemented through the submission by affected facilities of two separate permit applications: a Part 1 MACT application, which is a simple notification providing basic information about the affected source, and a Part 2 MACT application, which requires more detailed, comprehensive source-specific information. The permitting authority has up to 18 months after the submittal of a complete Part 2 application to develop specific MACT standards for the affected source and incorporate such standards into the source’s Title V permit.

The Pennsylvania Department of Environmental Protection ("PADEP") previously stated that it, like many other state agencies, intended to delay implementation of the MACT Hammer for Boiler MACT sources until EPA releases guidance for developing standards for this source category. However, a representative from PADEP recently announced informally that PADEP plans to begin implementation of the MACT Hammer for Boiler MACT sources shortly. Part 1 applications will be due within 30 days following notification by PADEP. Part 2 applications will be due within 60 days following the Part 1 application deadline. Although PADEP has not yet issued a formal notification addressing the submission of Part 1 applications, we are continuing to track available information on this issue. Separately, EPA has reported that it will propose a revised Boiler MACT by August 2009; however, it is presently unclear how this rulemaking process will affect PADEP's current plan to initiate implementation of the MACT Hammer for Boiler MACT sources.