The American Sugar Cane League, on behalf of Louisiana sugar cane growers and processors, successfully petitioned the U.S. Environmental Protection Agency to create a "Seasonal Boiler" subcategory to the Area Source Boiler Rule to avoid a disproportionate burden on industries with short seasonal operations like Louisiana's sugarcane industry.
On June 6, 2010, the U.S. Environmental Protection Agency ("EPA”) proposed two regulations intended to control toxic air pollutants from industrial boilers.
One regulation, called the Major Source Rule, applied to boilers operating at industrial facilities permitted to emit significant amounts of air toxics (at least ten tons of a single air toxic or twenty-five tons of a combination of air toxics). The second regulation, called the Area Source Rule, applied to boilers at facilities with emission rates below the 10 ton/25 ton major sources threshold.
While bagasse-fired boilers located at sugar mills in Florida, Texas, and Hawaii are subject to the Major Source Rule, emissions from each of the eleven Louisiana sugar mills are far below the major source threshold. As a result, the bagasse-fired boilers located at Louisiana mills are unique within the sugarcane industry because that are subject to the Area Source Rule rather than the Major Source Rule.
According to EPA, the Area Source Rule is necessary to reduce air toxic emissions from the combustion of coal, oil, and wood. However, EPA broadened the scope of the regulation pertaining to wood combustion to include all forms of biomass fuel, including bagasse. Although wood and bagasse are both biomass fuels, wood combustion emissions are not representative of emissions resulting from bagasse combustion, and in fact wood combustion generates considerably more air toxic emissions than bagasse combustion.
The emission limitations proposed by EPA would have required Louisiana sugar mills operating bagasse-fired boilers to undergo significant boiler modifications, install additional emission controls, replace existing boilers, or shut down entirely. Estimated costs to Louisiana mills were between $192 – $282.5 million. Because bagasse-fired boilers contribute a minimal amount of air toxics to the atmosphere, these capital investments would result in little or no measurable reduction in the toxic air emissions, yet would have had a potentially devastating impact on the industry.
The proposed Area Source Rule also required all boilers subject to the regulation to undergo a tune-up process every two years, which includes the requirement to conduct emissions monitoring. Because Louisiana sugar mills typically operate for approximately three months a year, conducting biennial tune-ups would have required Louisiana mills to conduct tune-ups every six months of operation, which is four times more frequent than required for boilers operating year-round.
On behalf of its members, the American Sugar Cane League utilized EPA’s administrative mechanisms to request that the agency reconsider the Area Source Rule’s application to Louisiana’s unique sugarcane industry. The League’s purpose was not to avoid any obligation to protect and improve air quality. Rather, the League acted to ensure fair and proportionate treatment of its members under the regulation. The League requested that EPA take a more reasonable approach to the application of emission limitations by balancing the high cost of compliance with negligible potential air quality improvements. The League also petitioned EPA to create a "Seasonal Boiler” subcategory to avoid imposing a disproportionate burden on industries with short seasonal operations like Louisiana’s sugarcane industry.
On February 1, 2013, EPA finalized revisions to the Area Source Rule (entitled "National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers, 40 CFR Part 63, subpart JJJJJJ”). Due in large part to the League’s participation in the rulemaking process, the Area Source Rule was revised to include a "Seasonal Boiler” subcategory, defined as a boiler shut down for seven consecutive months within a twelve-month period. Seasonal Boilers now have a tune-up frequency of once every five years and are exempt from the originally proposed emission limits, thereby eliminating the need to make the capital investments referenced above. EPA determined that the Area Source Rule requirements regarding tune-up frequency, energy efficiency, and good combustion practices are sufficient to ensure that Seasonal Boiler operations are protective of public health and the environment.
Special thanks to Phelps Dunbar LLP, Dr. Harold Birkett, GEC, Inc. and Breazeale, Sachse & Wilson, LLP for their counsel and expertise during the rulemaking process.