 Coalition for
Responsible Waste Incineration
CRWI Update
December 31, 2009
HMIWI Litigation
On December 7, 2009, the Medical Waste Institute and the Energy
Recovery Council filed a petition for review with the U.S. Court of
Appeals for the District of Columbia Circuit challenging the hospital,
medical, and infectious waste incineration (HMIWI) final rule (Case No.
09-1297). Motions (including petitions to intervene) and a statement of
issues to be raised are due on January 6, 2010. Petitioners intend to
raise three issues: MACT on MACT; the HAP by HAP approach to setting
standards; and the requirement that the facilities meet the standards
at all times including startup, shutdown, and malfunctions (SSM). It is
anticipated that EarthJustice will intervene supporting EPA and that
CRWI will intervene to support the petitioners. Other industry groups
anticipate requesting permission to submit an amicus brief.
There are early indications that the Agency may be willing to negotiate
the SSM challenge but anticipate that the other two will go to
briefing. The medical industry is not concerned about meeting the
standards during startup and shutdown because of the way these units
operate. In startup, these units use supplemental fuels (mostly natural
gas) to get up to their operating limits. Once there, the initial
charge of waste is introduced into the unit. For shutdown, the unit
must continue to operate on supplemental fuel for two hours after the
last charge has been introduced. As a result, most of the facilities
should be able to meet the standards while starting up and shutting
down. Malfunctions will be more problematic. Exactly how industry and
EPA will work this out has yet to be determined.
Unified Agenda
On December 7, 2009, EPA published their fall Unified Agenda and
Regulatory Plan. Although there are a few items in the Federal Register
notice, most of the information has been moved to an on-line data base.
The agenda gives the following schedules for rule of interest to
readers.
- The proposed definition of non-hazardous solid waste was
supposed to be published in December 2009 but it did not make it. It
has not yet been submitted to the Office of Management and Budget (OMB)
for review.
- The revisions to the General Provisions to address the
startup,
shutdown, and malfunction court ruling is scheduled for proposal in
November 2010.
- The proposed addition of the oil and gas sector to the
reporting
requirements for greenhouse gases is scheduled for February 2010. This
proposed rule went to OMB on December 14, 2009, so it should meet the
schedule.
- A final rule for registering waste energy facilities is
scheduled for
March 2010.
- Performance Specification 17 and Procedure 4 are scheduled
to be
re-proposed in June 2010 with a final rule scheduled for May 2011.
- The risk and technology review for Phase III Group 3
polymers was
scheduled for December 2009 but did not make it. It has not yet been
submitted to OMB for review.
- Proposals to redoing the municipal waste combustor MACT
standards in
light of the Brick MACT decision are scheduled for February 2010
(Large) and November 2010 (Small).
- EPA plans to finalize the Prevention of Significant
Deterioration
tailoring rule in April 2010.
- The rule to make coal ash a hazardous waste was scheduled
to be
proposed by December 2009. It was submitted to OMB on October 16, 2009,
and is still under review.
- Redoing the Brick MACT rule was included
in the schedule but the proposal date was listed as to be determined.
- Redoing the hazardous waste combustor MACT rule was not
included in
the schedule.
Additional information on each of these can be found at www.reginfo.gov.
IRIS
EPA announced two peer-review workshops and one listening session in
support of the Integrated Risk Information System (IRIS). A peer-review
workshop for ethyl tertiary butyl ether will be held on January 26,
2010 (December 22, 2009, Federal
Register notice). The workshop for 1,1,2,2-tetrachloroethane
will be held on January 27, 2010 (December 17, 2009, Federal Register notice). The
listening session for trichloroethylene was originally scheduled for
January 12, 2010 (December 11, 2009, Federal
Register notice) but was changed to January 26, 2010 on December
21, 2009.
EPA’s panel of experts is sharply divided on the classification of
trichloroacetic (TCA) acid, a metabolite of trichloroethylene and
tetrachloroethylene. EPA’s draft assessment for TCA describes the
chemical as a likely human carcinogen for all pathways of exposure.
This would upgrade the current IRIS classification of possible human
carcinogen. The draft assessment would also set a cancer slope factor
of 0.2 mg/kg body weight/day. The current assessment does not have a
slope factor. During the review panel meetings on December 10, 2009,
some of the panel members agreed with the draft assessment while others
sharply disagreed with it. One suggested that they could only support
the oral and dermal pathways but could not support the claim that all
pathways of exposure cause cancer. Another suggested that the likely
human carcinogen rating was not warranted when the mode of action has
not yet been determined. Panelists supporting EPA’s draft assessment
stated that the agency must err on the side of caution and must assume
that humans are as sensitive as the most sensitive species. This
assessment is being closely watched because of the large number of
locations where these contaminations are found. It is not clear what
the final recommendation of the panel will be.
Industrial Wipes
EPA has extended the comment period on the Conditional Exclusion from Hazardous and
Solid Waste for Solvent-Contaminate Industrial Wipes document
until February 26, 2010. Details can be found in the December 15, 2009,
Federal Register notice.
ADI
On December 7, 2009, EPA announced a series of recent postings to the
Applicability Determination Index (ADI). None of the ones announced
were for EEE sources although there were several for other MACT rules.
Additional details can be found in the Federal Register notice. The
complete ADI list can be found at www.epa.gov/compliance/monitoring/programs/caa/adi.html.
Asphalt
Processing and Asphalt Roofing Manufacturing
EPA published their final area source rule for the asphalt processing
and roofing manufacturing sector on December 2, 2009. In this rule, EPA
set either PAH or PM emissions based on pounds of asphalt roofing
product produced. The standards established in the rule apply at all
times, including startup, shutdown, and malfunctions. Under normal
operations, facilities are required to meet these standards using a
3-hour average. However, during startups or shutdowns, a facility is
allowed to use a 24-hour average to show compliance. EPA appears to be
following a pattern that startups and shutdowns are defined periods of
operation where different standards can be set. EPA states that
malfunctions are not a distinct operational mode. As such, EPA reasons
that malfunction emissions do not need to be factored into the
development of 112(d) standards, which, when promulgated, apply at all
times. As such, the final rule does not establish a separate averaging
period for malfunctions. EPA goes on to state that if malfunctions were
to be considered a distinct operating mode, it would be impractical to
take these events into consideration when setting 112(d) standards
because the type, frequency, and duration of these events vary widely.
In addition, EPA reasoned that setting an emission standard that
allowed for all the different types of malfunctions that could occur
would allow a source to emit excess emissions under normal operations
and would not provide an incentive to minimize the occurrence of
malfunctions. While EPA did not include this as an option, all of the
reasons stated seem to point to using work practice standards for
malfunctions.
Delisting
On December 30, 2009, EPA published a direct final rule delisting up to
140 cubic yards of sludge per year generated from a waste water
treatment plant operated by Professional Plating, Inc of Brillion, WI.
EPA concluded that the petitioned waste was non-hazardous with respect
to the original listing criteria and there are no other factors that
would cause the waste to become hazardous when properly disposed of in
a Subtitle D landfill. Additional details can be found in the Federal Register notice.
OECD Import and Export Rule
On December 28, 2009, EPA Administrator Lisa Jackson signed a final
rule to modify the regulations governing the shipping of hazardous
waste to other countries for recycling. The revisions are meant to
increase the level of oversight, provide stricter control, and greater
transparency. This rule brings EPA regulations more in line with the
import/export requirements of the Organization for Economic Cooperation
and Development (OECD). Specifically, this rule revises:
- Existing RCRA regulation regarding the transboundary
movement of
hazardous wastes for recovery among countries belonging to the OECD;
- RCRA regulations for spent lead-acid batteries to add
export
notification and consent requirements;
- Hazardous waste import-related requirements for U.S.
hazardous waste
management facilities to confirm individual import shipments comply
with the terms of EPA’s consent; and
- The address to which export exception reports are to be
sent.
The final rule should be published in January. A copy of the signed
rule can be found at www.epa.gov/waste/hazard/international/oecd-slab-rule.htm.
OSWER Blog
EPA’s Office of Solid Waste and Emergency Response Assistant
Administrator Mathy Stanislaus is developing some interesting methods
of outreach to the public. On December 16, 2009, Mr. Stanislaus held a
web based video town hall meeting in which he discussed three Superfund
topics: community engagement; performance measures; and brownfield
flexibility and resources. The last part of the meeting was an open
forum for questions on Superfund. Questions could be sent to Mr.
Stanislaus via e-mail. In addition, the Office of Solid Waste and
Emergency Response set up an on-line discussion forum to allow parties
to discuss topics of interest with EPA personnel. December’s question
was “How can EPA better engage and prepare local communities,
especially economically disadvantaged communities, to meaningfully
participate in government decisions on land cleanup, emergency
response, and the management of hazardous materials and waste?” Each
month is expected to deal with a new topic. These discussions can be
found at blog.epa.gov/oswerforum.
Residual Risk
EPA currently evaluates the residual risk after MACT standards are
promulgated by using the actual emissions from the facilities after
they come into compliance with the technology based standards. A draft
Science Advisory Board report suggests that EPA should change the data
used to evaluate residual risk from actual emissions to potential
emissions. The report suggests a two step process. The first step
should use the MACT limits for each facility to assess the potential
residual risk at any point in the future. The second step would be to
use actual emissions to evaluate the current risk. It will be
interesting to see if the Agency uses the two step process in their
next residual risk review.
Dioxin
The Office of Management and Budget completed their review of EPA’s
Office of Solid Waste and Emergency Response’s Guidance on Developing an Interim
Preliminary Remediation Goal for Dioxin in Residential Soil at CERCLA
and RCRA Sites on December 30, 2009. A notice of data
availability for this document was signed by EPA Assistant
Administrator Mathy Stanislaus on the same day. EPA’s current
recommended preliminary remediation goals (PRG) are 1,000 ppt in
residential soils and 5,000 to 20,000 ppt in commercial/industrial
soils. EPA is proposing to change the PRGs to 72 ppt for residential
soils and 950 ppt for commercial/industrial soils. In developing these
changes, EPA re-evaluated the available toxicity data, the generic
exposure assumptions, and the cancer risk levels. In addition, the
draft RPGs includes potential absorption of dioxin through the skin.
There will be a 50 day comment period on the document once published in
the Federal Register
(expected early in January). EPA anticipates
issuing the final PRGs in June 2010. A copy can be found at www.epa.gov/superfund/policy/remedy/sfremedy/remedies/dioxinsoil.html.
Financial Assurance
On December 30, 2009, EPA Administrator Lisa Jackson signed an advanced
notice of proposed rulemaking (ANPRM) to consider adding the chemical
manufacturing industry, the petroleum and coal products manufacturing,
and the electric power generation, transmission, and distribution
industry to the classes of facilities where CERCLA section 108(b)
financial assurance may be required. The ANPRM will also identify
additional classes within waste management and remediation services,
wood products manufacturing industry, the fabricated metal products
manufacturing industry, the electrical equipment manufacturing
industry, and the hazardous material recycling industry where
additional data will be gathered for possible development of financial
responsibility requirements. The ANPRM should be published in January.
Meanwhile, a copy of the signed notice can be found at
www.epa.gov/superfund/policy/financialresponsibility/index.html.
Nominations
EPA agreed to conduct a revised economic analysis of the current
cap-and-trade legislation and Senator George Voinovich (R-OH) dropped
his hold on Robert Perciasepe’s nomination to be the next Deputy
Administrator for EPA. The Agency also promised to seek an expedited
National Academy of Science review of its risk assessment for
formaldehyde and Senator David Vitter (R-LA) dropped his hold on Paul
Anastas to be the next Assistant Administrator for the Office of
Research and Development. The nominations of both were approved by the
Senate on a voice vote on December 24, 2009.
Climate Change – Regulatory
EPA announced they would make an endangerment finding on December 7,
2009, prior to the international climate change meetings in Copenhagen.
The endangerment finding was formally published on December 15, 2009.
This is the start of the process that will require regulations of
greenhouse gases under the Clean Air Act, starting with emissions from
mobile sources and quickly moving to new and reconstructed stationary
sources.
Meanwhile, EPA seems to be moving closer to requiring integrated
gasification combined cycle (IGCC) as best available control technology
(BACT) for new coal fired power plants – maybe. In a December 15, 2009,
order in response to a petition, EPA asked Arkansas to better justify
why they rejected IGCC as BACT. In a different December 15, 2009,
order, EPA responded to a different petition by agreeing with the
petitioners that a Kentucky permit is flawed because the state failed
to consider natural gas as an alternative to IGCC. However, in this
order, EPA was careful to state that this question did not constitute a
policy preference of natural gas fired plants over IGCC facilities.
Finally, in a third response to a Title V petition, EPA indicated a
willingness to require regulators to consider cleaner sources of coal
as a method of controlling emissions for a different Kentucky facility.
It should be noted that Kentucky does not have local sources of
low-sulfur coal.
Southeast Idaho Energy Inc., Sierra Club, and the Idaho Conservation
League have reached an agreement over the air permit for a fertilizer
plant where the plant will be required to reduce their nitrous oxide
and carbon dioxide emissions. The agreement requires the plant to begin
capturing and sequestering carbon dioxide within five years of startup.
If sequestration is not available, the plant must purchase an
equivalent amount of offsets. This plant is designed to gasify coal and
use the syngas to make fertilizer.
Just prior to the Copenhagen meetings, Dr. Phil Jones temporarily
stepped down as the head of the Climate Research Unit of the University
of East Anglia. Dr. Jones had figured prominently in the hacked e-mails
involving what appeared to be an effort to squelch the research of
scientists who were skeptical of climate change. The University of East
Anglia has initiated an internal probe of his activities. In addition,
Penn State University has confirmed that Dr. Michael Mann, a climate
scientist who also was prominent in the released e-mails, is under an
inquiry by the university. “Climategate” seems to have claimed its
first victim.
Copenhagen
As the United Nations Climate Conference in Copenhagen approached,
President Obama revised his travel plans to attend on the last day
instead of early in the conference. He used this time to talk with
several other world leaders hoping to develop a consensus on how to
address climate change. Up to the last couple of days, very little
progress had been made in getting some of the developing countries
(particularly China and India) to make any commitments to reduce
greenhouse gas emissions. While President Obama’s meetings did seem to
move everyone to a more central theme, there were no commitments made
as a result of these meetings. About the only thing agreed to was a
goal to keep the global temperature from increasing more than 2 ºC
above pre-industrial levels. There also seems to be an agreement to
create a fund with $30 billion total over the next three years to aid
developing nations in dealing with climate change. This fund would
eventually reach $100 billion per year by 2020. The United States
portion of this fund is expected to be $10 billion per year in 2020.
There were also commitments to continue working on greenhouse gas
emission goals between now and the next meeting of the parties in
Mexico City. While the United Nations and the developed nations tried
to put a positive spin on the outcome, a number of environmental groups
denounced the agreement as a sham that fails to resolve key issues such
as China and India’s refusal to accept binding emissions reduction
targets. Senate Republicans criticized the fund as a transfer of $10
billion in taxpayer’s money for a hollow political victory.
Climate Change – Legislation
Most observers believe that the Senate has until June to get a climate
change bill passed. After that, many Senators will be reluctant to take
a tough vote before facing voters in November. Many believed that a
strong agreement in Copenhagen would push the Senate to act. The
relatively weak agreement may make it more difficult. Observers see
several issues that must be addressed before this legislation can move
forward. Some of them are sensitivity of a cap-and-trade process on
market mechanisms, the provisions for the coal and nuclear industries,
fear of increased energy costs, skepticism for using allowances to aid
foreign countries, and feared lower competitiveness in the world
market.
CRWI Meeting
The next CRWI meeting will be held on March 2-3, 2010, in Victoria, TX.
The meetings will include a tour of INVISTA’s combustions operations.
For more information,
contact CRWI.
|