 Coalition for
Responsible Waste Incineration
CRWI Update
February 29, 2008
HWC MACT
Before reading EarthJustice’s comments on the “legal analysis,” EPA
intended to finalize all decisions on the analysis, have a signed
technical amendment, and a signed final decision on the
reconsiderations by the February 29, 2008, court reporting date. After
reading their comments, EPA decided that they were not finished with
their analysis and would need additional time. As a result, EPA asked
for an additional four months to study the comments and make their
final decisions. The motion to the court requests that all litigation
continue to be held in abeyance and that the next reporting date should
be July 7, 2008. Since there were no objections from the parties, it is
likely that the court will grant this extension.
EarthJustice has argued from the beginning that the top performers are
the lowest emitters. EPA has rejected that position, pointing out that
the lowest emitter may be in that position simply because it feeds the
lowest amount of a particular hazardous air pollutant (HAP). EPA has
taken the position that simply feeding the least amount of a HAP does
not make one a top performer. EPA went through extensive discussions in
the preamble of both the 1999 and 2005 rules to explain why the top
performers may not be the lowest feeders. Neither the statute nor the
courts have defined what a “top performer” is until the Brick MACT
decision. In the Brick MACT decision, the court added a parenthetical
that seems to define “top performers” as “lowest emitters.” The exact
language of the ruling is as follows.
“But EPA cannot circumvent Cement Kiln’s holding that
section
7412(d)(3) requires floors based on the emission level actually
achieved by the best performers (those with the lowest emission
levels), not the emission level achievable by all sources, simply by
redefining “best performing” to mean those sources with emission levels
achievable by all sources.”
EarthJustice used this sentence in their comments to tell EPA that
whatever method was used to select the top performers, it must pass a
final test – does it select the lowest emitters? If not, EarthJustice
argues that the method is incorrect and EPA must find a different
method to select the top performers. This got EPA’s attention. They
decided to go back through all standards for all categories to find out
if their methods for selecting the top performers also selected the
lowest emitters. This is the primary reason EPA asked for the
additional time.
This delay has caused additional confusion over what is required of
facilities. It should be remembered that the Phase II standards that
are to be redone will be remanded. This means that they remain in the
regulations while EPA goes through a rulemaking process to revise them.
Thus, for all practical purposes, the compliance date and the standards
for Phase II sources remain the same as were published in 2005. The
only changes may be for Phase I sources. EPA has indicated that where
they plan to redo Phase I standards, they will vacate those standards,
reverting back to the interim standards. While there is little actual
difference in the revised standards and the interim standards, there
are different testing requirements for the revised standards than there
are for the interim standards. EPA has not indicated how subsequent
testing will be handled for vacated Phase I standards.
The other area where any additional delays could cause problems is with
the technical amendments. Some facilities need one or more of these
corrections to be finalized before they can submit their initial
comprehensive performance test plan. EPA is aware of this problem and
has started the process of separating the technical amendments from the
reconsideration decisions. EPA plans to publish the technical
amendments before the end of March. Initial comprehensive performance
test plans for Phase II sources are due to the permitting authorities
by April 14, 2008. EPA will not publish their decisions on the
reconsideration requests until they finish the entire review process.
E-Manifest Rule
EPA has received strong support for its efforts to build a national web
based electronic manifest system that is supported by user fees. During
the comment period for the 2006 notice, EPA received comments that
prompted them to rethink two areas: the mandatory use of electronic
manifests and how confidential business information could or should be
incorporated into any electronic system. Commenters expressed concerns
that a voluntary system that would allow the use of both electronic and
paper manifests would create a dual system that defeats the purposes of
the electronic system. To address this, EPA is proposing that the Page
1 of the paper manifests be submitted to the E-Manifest systems
operator by the final destination facility. The E-Manifest system
operator will then either scan in or type in the information on the
sheet into the electronic system. EPA proposes charging an extra fee
for this service. Commenters were also concerned that competitors may
be able to use the e-manifest system to “mine” data from the electronic
system to develop customer lists and details of the types of shipments
from each generator. To date, EPA has not received any requests to keep
the information in the paper manifests confidential. In fact, several
states will not accept any claims of confidentiality for information on
manifests. Thus, EPA believes that individual manifest records and the
data in them should not be subject to confidential business information
claims. Entities can now file Freedom of Information Act requests to
obtain the information in the current paper manifest systems. However,
the current system will only allow distribution of data from manifests
that are already complete. EPA understands that more real-time data may
be sensitive and proposes to allow access to the electronic version
only after the shipment has been completed and the 60-day period for
review and correction has passed. EPA will take comments on these
proposed changes until April 11, 2008. Additional details can be found
in the February 26, 2008, Federal
Register notice.
2005 Cancer Guidelines Peer
Review
EPA will convene an external peer review meeting for the draft
“Framework for Determining a Mutagenic Mode of Action for
Carcinogenicity: Using EPA’s 2005 Cancer Guidelines and Supplemental
Guidance for Assessing Susceptibility From Early-Life Exposure to
Carcinogens” on April 4, 2008, in Arlington, VA. Details can be found
in the February 28, 2008, Federal
Register notice.
Thallium Review for IRIS
On February 15, 2008, EPA announced a draft toxicological review of
thallium in support of including this information in the Integrated
Risk Information System (IRIS). The comment period on this draft will
close on April 15, 2008. Additional details can be found in the Federal Register notice.
2006 TRI Data Released
On February 21, 2008, EPA released the 2006 TRI data. This data shows
that the total disposal or other releases in 2006 decreased by 2% (105
million pounds) from 2005 data. The total production related waste also
declined by 2% from 2005 while the quantity of production related waste
that was recycled increased by 2%, the quantity used for heat recovery
increased by 4%, and the quantity treated declined by 7%. Details and
copies of the reports can be found at
www.epa.gov/tri/tridata/tri06/index.htm.
Biosolid Incinerators
Another fall out of the court ruling on the Commercials and Industrial
Solid Waste Incinerator Rule (CISWI) is how biosolid incinerators are
to be regulated. Incineration is one method of treating sludge
(biosolid) from waste water treatment plants. Often theses sources do
not meet the definition of major sources under the Clean Air Act. As
such, the waste water industry had convinced EPA that biosolid
incinerators should be regulated under section 112(k), the area source
program. This section is less stringent than either sections 112(d) or
129. However, the recent court ruling that stated that all solid waste
incineration should be regulated under section 129 has caused the
Agency to rethink this decision. The court was pretty clear in its
interpretation that section 129 includes any facility that “combusts
any solid waste material from commercial or industrial establishments
or the general public...” The exclusions in the definition in section
129 do not include sewage sludge incinerators. It now seems likely that
EPA will regulate these units under section 129.
HON NESHAP Residual Risk
Litigation
The final brief for the HON NESHAP residual risk litigation is due to
the court on March 4, 2008. The oral arguments are scheduled for April
10, 2008, in front of Judges Kavanaugh, Griffith, and Silberman. Expect
a ruling some time in September.
CAMR Court Ruling
In 2000, EPA decided that it was appropriate to regulate mercury
emissions from coal and oil fired electric generating units (EGUs)
under section 112 of the Clean Air Act. As such, EGUs were listed as a
source category under 112 and EPA started the process of developing
MACT standards for this source category. When the regulations were
proposed in 2004, EPA proposed two options. One was to develop MACT
standards under 112 and the other was to regulate mercury emissions as
a cap-and-trade system under section 111. After reviewing public
comments, EPA choose to delist EGUs from section 112 and to finalize
control of mercury emissions from this source category as a
cap-and-trade program under section 111. EarthJustice and several
States filed suit, arguing that EPA did not have the statutory
authority under the Clean Air Act to delist this source category from
section 112 and that the cap-and-trade program was illegal. On February
8, 2008, the U. S. Appeals Court for the District of Columbia Circuit
agreed with the plaintiffs and ruled that EPA’s Clean Air Mercury Rule
(CAMR) was not legal and vacated the rule. The three judge panel
unanimously found that EPA lacked the statutory authority to delist
electric generation units as sources under section 112 of the Clean Air
Act. Implicitly this ruling suggests that EPA should have regulated
these sources under section 112. When the mandate is issued (45 days
after the ruling to allow for any appeals plus 7 days), the rule will
be vacated and these sources may now become subject to case-by-case
MACT. This will create a great deal of confusion on exactly what
regulations apply for these units. This will be especially critical for
the new units and the units undergoing permit modifications.
Climate Change
While it does not seem like there is a lot of activity on S. 2191,
there are a considerable amount of discussions occurring behind the
scenes in an effort to remove roadblocks for the legislation. Senator
Barbara Boxer (D-CA) briefed the Senate Democratic Caucus on the
legislation in February. Two issues have emerged that are creating
concerns for the current draft. The current legislation would impose
cap-and-trade controls on domestic sources in 2012 but would not impose
an emissions allowance fee on imports from countries that do not have
similar controls until 2020. Both union and industry representatives
are arguing that this eight year gap in the time lines would hurt U.S.
businesses. Some gap between U.S. carbon controls and import fees may
be necessary to avoid conflicts with World Trade Organization rules.
Staff is working to find compromises such as narrowing the time gap or
finding alternatives to import fees (such as border taxes). The other
issue that has concerned Senators is the cost for the program. This
issue includes the cost to administer the program, the cost for
allowances, and the cost to U.S. industry during these gap years. These
issues will have to be addressed to the satisfaction of most Democrat
before the legislation will move. The Environment and Public Works
Staff have indicated that they hope to have this bill on the Senate
Floor in the May-June time frame.
Meanwhile, Congressmen John Dingell (D-MI) and Rick Boucher (D-VA)
released their third white paper on potential options for climate
change legislation. This paper focuses on the appropriate roles for
different levels of government. On one hand, the paper suggests that
since the problem is global, it should be addressed at the highest
levels possible (national level). On the other hand, it notes that the
committee does plan to change the current system for states seeking
waivers from federal air pollution rules. Copies of the paper can be
found on the House Energy and Commerce web site
(energycommerce.house.gov/Climate_Change/index.shtml).
In addition, the
Committee has scheduled a hearing on the second white paper
(competitiveness issues with developing nations) for March 5, 2008.
EPA continues to work on developing regulations for underground
injection of carbon dioxide. The Agency held a meeting on the issue on
February 26-27, 2008. While EPA has not made any decisions, some of the
topics of discussion were well construction standards to prevent
corrosion, extra secondary containment to prevent leakage into
groundwater aquifers, periodic evaluation of the surrounding geologic
structures, earlier and more frequent public participation, and what
financial assurances and post-closure care is needed. EPA is expected
to propose a rule in July of 2008 with final promulgation in 2011.
The Department of Energy (DOE) has set up a test program to determine
how different geological structures can be used to store carbon
dioxide. On February 21, 2008, DOE initiated pumping carbon dioxide
into the first of these test wells in Gaylord, MI. This well will pump
carbon dioxide into a saline aquifer approximately 3,500 feet below the
surface. The carbon dioxide for this test is a by-product of a nearby
natural gas plant. DOE plans to continue the test through March and
eventually store 10,000 tons of carbon dioxide in this formation. DOE
will begin tests in the other 19 locations at a later date.
The concept of biofuels as a solution to climate change is starting to
lose some of its luster. When researchers added in the carbon costs to
clear additional land to grow the crops for biofuels, they found that
the initial releases of carbon from the clearing process often created
a large deficient to be overcome. For example, it would take 17 years
to overcome the carbon loss from converting undeveloped land to
sugarcane ethanol production in Brazil. Clearing areas in Malaysia to
grow palm oil would emit so much carbon that it would take 420 years of
burning biodiesel from these fields to overcome the initial carbon
releases. In addition, the report estimates that it would require 48
years to counter the effects of disturbing abandoned croplands in the
U.S. to grow corn for ethanol. Given the initial costs, converting
abandoned land to biofuel production appears to be more expensive than
originally thought. This study was published in the February 29, 2008,
issue of Science Magazine.
BASF has become the first major industrial firm to establish a Climate
Protection Officer. This position will be a part of BASF’s
Sustainability Council and will coordinate all global activities on
greenhouse gas emissions and disposal.
CRWI Meeting
The next CRWI meeting will be held on May 12, 2008, in Montreal,
Canada, in conjunction with the IT3 conference. The major topic for
discussion will be EPA’s progress on final decisions on which standards
are to be redone. For more information, contact CRWI.
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