 Coalition for
Responsible Waste Incineration
CRWI Update
August 31, 2009
HWC MACT
On August 14, 2009, the court granted EPA’s motion to remand the entire
HWC MACT rule. The litigation on the 2005 rule has now officially
ended. EPA staff has not yet been asked to brief their Assistant
Administrator on the next rulemaking. No one seems to be in any hurry
to start.
SSM
On July 30, 2009, the court denied industry’s motion for rehearing on
the startup, shutdown, and malfunction (SSM) suit. On August 5, 2009,
EPA filed a motion with the court asking to delay issuing the mandate
for 60 days to give affected sources, regulatory agencies, and EPA time
to discuss and resolve potential compliance issues that may occur
during SSM events. Meanwhile, EPA published a Federal Register notice on August
26, 2009, making available the letter that outlines EPA’s
interpretation of the ruling. The contents of this letter were
discussed in the July Update. Copies of the letter and other documents
associated with the case can be found at www.epa.gov/compliance/civil/caa/ssm.html.
On August 6, 2009, industry parties also filed a motion to stay the
mandate. In their motion, the industry parties stated an intent to
petition the Supreme Court to review this decision. The industry
parties stated that they believe they have a reasonable chance of the
Supreme Court agreeing to review the decision and the affected parties
should not lose the ability to use SSM plans until the Supreme Court
makes that decision. The Supreme Court gets approximately 6000 requests
to review cases each year. They grant less than 150.
ECF Rule
EPA finalized the Emissions Comparable Fuel (ECF) exclusion from the
definition of solid waste on December 19, 2008. Sierra Club and the
Louisiana Environmental Action Network filed suit arguing that the rule
was illegal. In May 2009, the Obama Administration announced an
intention to withdraw the rule. On August 19, 2009, EPA sent a proposed
rule to the Office of Management and Budget (OMB) presumably to start
the process of withdrawing the exclusion. Recently, OMB has been taking
about 30 days to review a rule. If this trend continues, this rule
should clear OMB in mid-September and could be published by late
September.
Refinery Risk Rule
The refinery residual risk final rule was signed on January 16, 2009,
as required in the court order. However, it was never published in the Federal Register. This was one of
the rules that got caught up in the review of Bush Administration rules
by the new Obama Administration. This rule was opposed by a number of
groups, arguing that it was not stringent enough. The Obama
Administration has finished their review of the rule and resent it to
OMB. On August 27, 2009, OMB finished their review. While it is not
clear exactly how EPA has changed the rule, it appears that the Agency
revised the emission factors. Other changes will not be known until EPA
releases the signed rule.
AEGLs
The National Advisory Committee for Acute Exposure Guideline Levels for
Hazardous Substances will hold a meeting in Research Triangle Park, NC
on September 9-11, 2009, to address the development of Acute Exposure
Guideline Levels (AEGL) for 24 compounds. On the same day, the
Committee asked for comments on proposed AEGLs for 19 compounds.
Comments are due on September 18, 2009. Additional details can be found
on both notices in the August 19, 2009, Federal Register.
IRIS Review
On August 20, 2009, EPA announced an external review draft document
titled Toxicological Review of Ethyl
Tertiary Butyl Ether: In Support of Summary Information on the
Integrated Risk Information System (IRIS). EPA will accept
comments on this document until October 19, 2009.
Stack Gas Velocity Method
On August 19, 2009, EPA signed a proposed rule to modify Method 2H, the
method for determining the velocity drop-off near the stack or duct
wall. When published, the proposed rule will have a 60 day comment
period. A copy of the signed rule can be found at
www.epa.gov/ttn/oarpg/t1/fr_notices/method_2h_prop_fs_090820.pdf
Mercury
While other forms of mercury can create health problems, the most toxic
form of mercury in the environment is methylmercury. This form of
mercury is not excreted but builds up in tissues and organs. It is this
bio-concentration process that turns low levels of exposure to mercury
into much higher exposures. Although there has been a lot of work on
trying to understand how inorganic mercury gets converted into organic
mercury (methylmercury) in the natural environment, this process has
been somewhat of a mystery. Recently, researchers from Duke University
have discovered a potential method that could explain how this process
works. In relatively cold water that has little oxygen (anaerobic
conditions), mercury readily combines with sulfides to form soluble
mercury sulfide nanoparticles. If these soluble nanoparticles have the
opportunity to grow larger, they become insoluble and precipitate out.
These larger, insoluble mercury sulfide particles do not enter the food
chain and are not considered a serious health hazard. However, if the
soluble mercury sulfide nanoparticles encounter organic matter, they
form an attachment and do not grow into larger inorganic particles. The
organic matter-mercury sulfide nanoparticles can now be taken up by
bacteria that convert the mercury sulfide to methylmercury. As
postulated by the Duke researchers, the process occurs in an aqueous
environment under anaerobic conditions where there is an abundance of
organic matter. This seems to describe most marshes. While it is
important to understand the process, it is unclear how this
understanding can help in reducing the amounts of organic mercury in
the environment. One possible outcome is that local emission sources of
mercury that are near swamps or marshes could have different control
levels.
Hexavalent Chromium
On August 20, 2009, the California Office of Environmental Health
Hazard Assessment proposed a 6 ppt public health goal for hexavalent
chromium. The current drinking water standard for California is 50 ppb.
EPA’s current drinking water standards are 100 ppb. However, a direct
comparison of the proposed standards and existing standards is not
appropriate. The current California and EPA standards are based on
total chromium and not just the hexavalent form. If finalized,
environmental groups hope that this change will put pressure on EPA to
strengthen its assessment and regulation of hexavalent chromium.
Nitrous Oxide
Although it has been known for some time that nitrous oxide plays a
role in upper atmosphere ozone depletion, the National Oceanic and
Atmospheric Administration recently announced the results of new
calculations that show nitrous oxide plays a much larger role than
previously believed. Nitrous oxide is stable as it is released at
ground level but when it reaches the upper atmosphere, it degrades to
nitrogen oxides and reacts with ozone. The major sources of nitrous
oxides are fertilizers, livestock manure, sewage treatment plans,
nitric acid production, and combustion. Nitrous oxide is also
considered to be a potent greenhouse gas. In fact, it is included in
the recently proposed rule as one of the greenhouse gases on which
combustion sources will be required to report emissions. The
combination of being a greenhouse gas and causing the depletion of the
ozone layer may lead EPA to consider regulations on nitrous oxide
emissions.
Environmental Justice
Since being confirmed as EPA Administrator, Lisa Jackson has made it
clear that environmental justice would be a significant part of her
work at EPA. At a meeting of the Blacks in Government, she announced a
new position (Associate Assistant Administrator for Outreach,
Diversity, and Collaboration) to oversee all EPA diversity efforts. The
person will report directly to the Assistant Administrator for
Administration and Resource Management. It is expected that this
position will take more of a role in all EPA activities, including
rulemaking. She did not indicate who would be put in this new position.
One of the first places where this new emphasis may show up is the
definition of solid waste (DSW) rule. The Bush Administration finalized
this rule as a way to promote recycling. Environmental groups would
like the Obama Administration to revoke this rule because they see it
letting hazardous waste out of the RCRA process. Environmental justice
concerns may be the tool that these groups use to convince the Obama
Administration to revise the rule. An example of this effort is a
Linden, NJ, recycling facility owned by Safety-Kleen. This facility has
taken advantage of the revised DSW rule to change the way certain
petroleum based solvents are managed and reported. Activist state that
this facility is located in an area where people of color are
over-represented. They are actively opposing these changes.
Safety-Kleen has responded that their recycling operations are done in
a “safe and environmentally sound manner.” EPA has not yet announced
any decision on how to respond to these requests.
In addition, Mathy Stanislaus, EPA Assistant Administrator for the
Office of Solid Waste and Emergency Response, recently sent an e-mail
to the Agency’s environmental justice mailing list introducing himself.
He gave out his e-mail address and encouraged individuals to contact
him. He invited recipients of the letter to send him comments on how
EPA should be developing and issuing policy, guidance, and rules. He
also stated that he would be holding a number of video town halls and
intended to meet with as many of the environmental justice advocates as
possible.
Climate Change – Legislation
Typically, little gets done by Congress during the month of August
primarily because they spend most of the month in recess. Often they
use this time to float ideas to see how other parties react. One idea
that has been floated by various Senators is to strip the Senate bill
of the cap-and-trade portions and simply pass an energy efficiency
bill. Congressman Henry Waxman (D-CA) has suggested a similar concept
with the idea that when the Senate and House form a conference to
reconcile the differences, most of the cap-and-trade concepts could be
restored. Senators John Kerry (D-MA) and Barbara Boxer (D-CA) announced
that their climate change bill would be not be introduced on September
8 but would be delayed until the later in September.
Meanwhile, various industry groups have copied a page from the health
care rallies to host targeted rallies voicing anger over congressional
efforts to regulate greenhouse gases. Part of the information used in
these rallies is an economic analysis of the House climate bill
released by the National Association of Manufacturers and the American
Council for Capital Formation. This report states that the current
legislation, if passed, would cause the gross domestic product to fall
by 1.8 to 2.4 percent by 2030. They also claim it would lower the
domestic industrial output by 5.3 to 6.5 percent and lead to an overall
loss of 1.8 to 2.4 million jobs. The environmental groups have
responded by calling the report “just a repeat of the same old
scare-tactics and misinformation.”
Climate Change – Regulations
EPA has been very active during August. On August 18, 2009, EPA sent
the final greenhouse gas reporting rule to the OMB for their review. On
August 25, 2009, they sent a proposed rule setting greenhouse gas
limits for mobile sources to OMB. On August 31, 2009, EPA sent a
proposed rule to regulate greenhouse gas emissions from stationary
sources under the prevention of significant deterioration program to
OMB. The stationary source rule is expected to include sources that
emit 25,000 tons or greater of greenhouse gases per year. Based on
OMB’s recent record, one should expect these actions to be final in mid
to late September. On August 31, 2009, EPA published a notice of data
availability on new data gathered during the original comment period
for their proposed regulations for carbon sequestration in deep wells.
Comments on these new data will be accepted until October 15, 2009.
Meanwhile, the U.S. Chamber of Commerce continues to gear up for a
court fight once the endangerment ruling is finalized. The Chamber
submitted additional statements supporting the initial position that
EPA is not following the proper procedure in making this finding. This
petition calls for a neutral party to make a determination of the
scientific basis for the finding that greenhouse gases endanger public
health and the environment.
In a proposed consent decree, EPA and an Ohio Edison power plant have
agreed to reduce greenhouse gas emissions by 1.3 million tons per year.
This action is a modification of a 2005 consent order that gave the
company three options: shut down, install a scrubber, or re-power with
natural gas. The revise order will give Ohio Edison until 2012 to use
mostly biomass fuels with no more than 20% low sulfur coal to achieve
the goals.
New calculations of the impacts of geo-engineering to slow the impacts
of global warming are suggesting that the ideas may do more harm than
good. New information suggests that seeding the upper atmosphere with
sulfur could also increase the rate of destruction of the ozone layer.
It has also been suggested that fertilization of the ocean to create
large plankton blooms will result in large areas of the ocean with
depleted oxygen concentrations (dead zones). One researcher stated:
“Playing with Earth’s climate is a dangerous game with unclear rules.”
Nominations
On August 7, 2009, the Senate approved by the nomination of Colin
Fulton to be EPA’s General Counsel and Craig Hooks to be the Assistant
Administrator for the Office of Administration and Resource Management.
This completes most of the Senate confirmed positions within EPA. Still
stalled is the nomination of Robert Perciasepe to be the Deputy
Administrator for EPA. Also stalled is the nomination of Cass Sunstein
to head the Office of Information and Regulatory Affairs. On August 6,
2009, the Senate Environment and Public Works favorable reported the
nomination of Gary Guzy to be the next Deputy Director of the Office of
Environmental Quality. Mr. Guzy’s nomination does not appear to be
controversial. President Obama has not yet appointed any Regional
Administrators.
CRWI Meeting
The next CRWI meeting will be held on November 4-5, in Baton Rouge, LA.
The major topics for discussion will be implementation issues for the
2005 rule and the next HWC MACT rulemaking. For more information,
contact CRWI.
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