 Coalition for
Responsible Waste Incineration
CRWI Update
December 31, 2007
HWC MACT
Although the official comment period on the “legal analysis” notice
ended on November 27, 2007, EPA expressly gave EarthJustice and the
Environmental Technology Council (ETC) additional time to submit
“timely” comments (see e-mail from Steve Silverman, dated 12/11/07,
docket ID EPA-HQ-OAR-2004-0022-0612). EarthJustice’s comments were
posted in the docket on December 14, 2007, and ETC’s comments were
posted on December 26, 2007. EarthJustice’s comments are extensive (26
pages), covering all standards, even the ones EPA is not currently
considering reopening. In their comments, EarthJustice took the
position that EPA must use the straight emissions approach for all
standards; for PM to be a reasonable surrogate for SVMs and LVMs, it
must be the only means by which the facility can reduce emissions of
those metals; EPA’s use of variability is not legal; EPA cannot
subcategorize based on the type of air pollution control devices used;
and EPA is not allowed to alter the record without proper notice and
comment. ETC restricted their comments to the incinerator standards and
supported EPA’s current position.
IRIS
On December 21, 2007, EPA announced their 2008 Integrated Risk
Information System (IRIS) program. This notice provides the public with
a list of IRIS assessments in progress, a list of new assessments
starting in 2008, and instructions on how the public can submit
pertinent scientific information. While EPA will conduct a complete
literature search on each compound in question, the public solicitation
allows unpublished analyses to be included in this assessment process.
The overall process of developing an assessment for a chemical is quite
lengthy, starting with an announcement that the compound is to be
considered, a comprehensive search of the scientific literature,
development of a draft IRIS assessment, multiple reviews (internal,
interagency, and external) of the draft assessment, and finally
incorporation of the final assessment into the IRIS database
(www.epa.gov/iris). As an
example, EPA announced a draft IRIS
toxicological review for acrylamide on December 28, 2007. A complete
listing of the current assessments and the new ones for 2008 can be
found in the Federal Register
notice.
Unified Agenda
Twice a year, all agencies of the federal government publish a list of
actions they plan to undertake in the coming year. Normally, this list
is published in the Federal Register.
However, this year, the Unified
Agenda has gone mostly paperless. While the Federal Register (December
10, 2007) still contains a notice that the Fall version of the Unified
Agenda is available, the majority of the entries are restricted to a
database (www.reginfo.gov/public/do/eAgendaMain)
run by the General
Services Administration and Office of Management and Budget. To get to
a particular agency’s list, scroll to the bottom of the web page,
select the agency from the list and click on “submit.”
Comparable Fuels Exclusion
On September 6, 2007, EarthJustice sent a Freedom of Information Act
request to EPA asking for the identity and location of all industrial
facilities that may use the proposed comparable fuels exclusion
(proposed on June 15, 2007) and the estimated quantity of emission
comparable fuels that may be used by these facilities. Also, they
pointed out that a copy of the American Chemistry Council survey that
EPA used as a primary data source for the proposed rule was not
included in the docket. In addition, 25 Congressmen (2 Republicans and
23 Democrats) sent a letter to EPA on November 26, 2007, requesting EPA
conduct a study similar to what was done during the definition of solid
waste proposed rule for the comparable fuels proposed rule. The letter
expressed concern that the facilities that will burn emission
comparable fuels are in highly populated areas and have not been in
full compliance with current RCRA regulations. The letter contends that
this greatly increased the risk for that population and should be
properly evaluated before the rule is finalized. EPA has not indicated
how they plan to respond to the letter.
Hydrogen Sulfide
Hydrogen sulfide (H2S) is often produced by anaerobic bacteria that use
sulfate to obtain their oxygen, giving off H2S as a by-product. This
occurs in oil fields (with crudes containing high amounts of sulfate),
construction and demolition landfills containing wallboard (calcium
sulfate), concentrated animal feeding operations, and paper mills. As a
part of the 1990 amendments to the Clean Air Act, Congress considered
including H2S as a hazardous air pollutant (HAP). Instead, they asked
EPA to study the health impacts of H2S and report their findings to
Congress. In 1993, EPA recommended that H2S be regulated when there is
the potential for large, accidental release but that it should not be
regulated as routine emissions from industry. In 1999, the
Galveston-Houston Association for Smog Prevention sent a letter to EPA
asking them to further their studies of the compound and then to list
and regulate H2S as a HAP. Reports from EPA staff give contradicting
version of where the Agency is currently at on this request. One
suggests that a working group recommended listing it as a HAP while
others suggest that the current scientific data does not support such a
listing. It appears unlikely that the Agency will act on this request
during the current Administration.
Residual Risk Proposed Rule
On December 12, 2007, EPA requested comments on their decision not to
impose additional requirements on eight source categories based on
either residual risk review (Section 112(f) of the Clean Air Act) or on
technology review (section 112(d)(6) of the Clean Air Act). The eight
source categories are: butyl rubber production; ethylene-propylene
rubber production; polysulfide rubber production; neoprene production;
epoxy resins production; non-nylon polyamides production; acetal resins
production; and hydrogen fluoride production. EPA followed the same
Benzene NESHAP model that they have used for all other residual risk
rules. In this case, five of the eight source categories did not emit
carcinogenic HAPs and for the other three, the maximum individual risk
for all facilities modeled in the category was below one-in-a-million.
For all facilities modeled for non-cancer risks, the hazard indices
were all below 1.0. For the technology review, EPA concluded that
reducing the HAP emissions for seven of the eight categories (excluding
hydrogen fluoride production) would reduce the cancer incidences by
less than 0.0002 cases per year. The maximum hazard index for the
hydrogen fluoride production category was 0.01. EPA decided that
further reductions would not result in any health benefits. EPA will
accept comments on these proposed actions until February 11, 2008.
On a different note, EPA appears to have dropped the total facility low
risk determination (TFLRD) concept. It was not included in the Fall
Unified Agenda (published on December 10, 2007). When asked, EPA staff
confirmed that the concept would not be pursued in any future residual
risk rules.
Residual Risk Litigation
In the HON NESHAP litigation, NRDC submitted their initial brief
September 12, 2007 (see the September 2007 Update
for details). EPA
submitted their response brief on December 12, 2007. In their brief,
EPA pointed out that in their report to Congress in 1999, they clearly
outlined their plans to use the Benzene NESHAP as a model for all
residual risk determinations. They point out that because Congress took
no action on the report, they activated the residual risk program (as
prescribed in the section 112(f)(2) of the Clean Air Act) and started
developing rules based on the Benzene NESHAP model. EPA argues that
section 112(f)(2)(B) is not a “savings provision” but explicit
instructions by Congress to use the Benzene NESHAP as a model for all
future residual risk assessments. They point to the legislative history
of the statute as proof that this is what Congress intended. They also
argue that the one-in-a-million requirement is 112(f)(2)(A) is not a
“bright line” but is referring to an ample margin of safety
determination. They also argue that there is nothing in section
112(d)(6) that requires them or even suggests that they need to redo
the MACT floor determinations every eight years. EPA argues that this
section requires the Agency to review the standards and make
discretionary revisions, as necessary. EPA contends that they did that
in the HON residual risk rule and decided that additional restrictions
were not necessary, well within the discretion given to them by
Congress. In addition, EPA defended the data used to develop the
assessments, pointing out that the statute does not require them to
obtain data directly from the facilities nor does it preclude them from
using data supplied by the facilities in developing residual risk
determinations. Intervener’s briefs are due on January 12, 2007 and the
final briefs are due on March 4, 2008. Oral arguments will then be
scheduled. The court should render their decision by the end of 2008.
While one should never try to anticipate what the court will do, it
appears that NRDC’s arguments on the validity of the data and whether
EPA is required to re-establish a MACT floor every eight years appear
fairly weak. It is much more difficult to handicap the apparent
contradiction between the “bright line” of one-in-a-million requirement
in section112(f)(2)(A) with the “instructions” to use the Benzene
NESHAP rule as a model in section 112(f)(2)(B).
RCRA Waste from a Hydroelectric
Dam
Environmental activist have used a number of different tools to stop or
dismantle hydroelectric dams. The dams along the Klamath River in
Northern California and Southern Oregon have been particularly
controversial. Klamath Riverkeeper has been at odds with PacifiCorp
(dam owners and operators) for a number of years. On December 6, 2007,
the controversy took an unusual turn when the activist filed suit in U.
S. District Court in San Francisco, alleging that PacifiCorp was
producing and releasing a hazardous waste as a result of the algal
blooms in the reservoirs behind the dams. The group alleges that the
algae and its associated toxic waste are solid wastes under RCRA and
PacifiCorp is improperly handling that waste. The group has presented
evidence that the operation of the dam is linked to algae growth and
the subsequent toxins releases. Industry observers have suggested that
the courts have consistently ruled that dam operation (including algae
growth) does not meet the Clean Water Act criteria for discharge of a
pollutant, thus removing it from consideration as a RCRA waste. Once
again, one should always be careful in predicting how a court will
rule.
Climate Change
S. 2191 was amended by the full committee and was favorably reported by
an 11-8 vote. Senator John Warner (R-VA) was the only Republican in the
committee to vote in favor of the amended bill. The Republicans offered
a number of amendments (added incentives for the nuclear industry, to
preempt state climate programs, off ramps, etc.) but most were either
withdrawn or rejected. Other amendments brought up but not agreed to
addressed additional emission allowances for small refiners and
allowing for the allocation of allowances for the cement industry to be
based on efficiency. For some reason there has been a delay in
publishing the Committee report. This report will make it clear what
amendments were accepted and which were denied. It will also show the
exact language of the bill that will be reported to the Floor for
consideration by the full Senate. Supporters of the bill will push for
consideration as quickly as possible. The opponents of the bill have
describe the legislation as “fatally flawed” and plan to offer
significant amendments when brought up for consideration by the full
Senate. This will make for a long and convoluted floor fight before the
bill will be voted upon. Unless there are significant changes in the
current bill, it is not clear that the supporters have the votes to get
it passed by the Senate.
As is often the case in large spending legislation, Congress has
“earmarked” $3.5 million for EPA to develop a greenhouse gas registry
within 18 months. Senators Amy Klobuchar (D-MN) and Dianne Feinstein
(D-CA) inserted language requiring EPA to “use its existing authority
under the Clean Air Act to develop and publish a rule requiring
mandatory reporting of GHGs above appropriate thresholds in all sectors
of the economy.” Some observers contend that mandatory reporting of
greenhouse gas emissions is a necessary pre-requisite for a future
cap-and-trade program. Others are downplaying the impacts, citing the
lack of statutory authority to develop such a registry. Others do not
think this requirement will have a significant impact since certain
industry sectors already have to report greenhouse gas emissions. EPA
has said they are examining the language but have not decided how to
react to it.
The energy bill, H.R. 6, was passed by Congress and signed by the
President on December 19, 2007. In addition to raising the fuel economy
requirements, it also has a fairly extensive section on carbon
sequestration. Title VII of the statute requires the Department of
Energy to conduct at least seven large scale tests (greater than 1
million tons of carbon dioxide), other than the current FuturGen
project, for the geological containment of carbon dioxide. The statute
appropriates $240 million per year until 2011 to fund this endeavor.
Title VII also contains requirements to develop a carbon sequestration
atlas of the United States and Canada that contains an estimate of
national capacity for sequestering carbon dioxide.
The current international agreement (Kyoto Protocol) to reduce the
emissions of greenhouse gases is set to expire in 2012. The 13th
meeting of the parties to the United Nations Framework Convention on
Climate Change was held on December 3 -14, 2007, in Bali, Indonesia. It
was attended by delegates from 187 countries. One of the major agenda
items for this conference was to develop how the international
community plans to address greenhouse gas emissions after the Kyoto
Protocol expires. At the end of the meeting, all parties (including the
United States) agreed on a two-year process to develop a replacement
for the Kyoto Protocol. More information on the Bali meeting and the
process can be found at unfccc.int/meetings/cop_13/items/4049.php
Also during December, Australia signed the Kyoto Protocol. This leaves
the United States as the only major industrialized country that has not
signed the Kyoto Protocol. President Bush has steadfastly refused to
commit the United States to specific targets for reducing greenhouse
gas emissions, preferring to rely upon voluntary actions.
Waste-to-Energy Plants
Allied Waste Industries announced the commencement of operations of two
landfill gas-to-energy facilities, both in Virginia. The Brunswick
County Landfill in Lawrenceville is an 8-megawatt facility and the King
& Queen County landfill in Little Plymouth is a 12-megawatt
facility. Allied Waste now has 52 landfill gas-to-energy projects
underway. CH Energy Group has entered into a 15-year contract with the
Auburn, NY to build and operate a 3-megawatt facility using gas from
the municipal landfill and the wastewater treatment plant. Construction
should begin in the Spring and should become operational by the end of
2008.
CRWI Meeting
The next CRWI meeting will be held on March 6-7, 2008, in
Chantilly, VA. The major topic for discussion will be how to respond to
EPA’s final decisions on which standards are to be redone. For more
information, contact CRWI.
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