 Coalition for
Responsible Waste Incineration
CRWI Update
February 28, 2010
Boiler MACT
The boiler MACT, the commercial and industrial solid waste incinerator
MACT, the definition of non-hazardous solid waste, and the area source
boiler proposed rules are now scheduled to go to OMB on March 12, 2010.
EPA has indicated that several things have changed in these rules since
industry last met with them. EPA is still not giving any indications on
how the definition of non-hazardous solid waste will be modified. It
seems to be in flux because EPA staff has stated that every time it
changes, they have to recalculate the floor numbers for both rules. EPA
also seems to be moving away from total hydrocarbon as a surrogate for
non-dioxin organic HAPs and instead seems to now favor carbon monoxide.
Compliance with either will be on a 30-day average. It also appears
that carbon monoxide CEMs will be required for large units. EPA has
indicated that a total selected metals alternative standard will no
longer be included in the proposed rule. In addition, EPA seems to have
moved away from a minimum of 5 sources to set the existing source
standards, going back to the 12% of the total number of sources for
which they have data. This could mean that the existing source
standards for some categories may be based on a single source (like the
hospital/medical/infectious waste incinerator rule).
EPA is still using the straight emissions approach but appear to have
put a little different spin on it. The new spin is to treat each test
(set of three runs) as a separate entity, calculate the average of each
set of three runs (no matter how many sets an individual facility may
have), and rank them from lowest to highest. Once the top performers
are chosen, they go back to the original dataset to see if any of the
top performers have more than one data set. If so, they add that data
back in when setting the floor.
It is not clear how EPA will handle startup, shutdowns, and
malfunctions (SSM) in this proposed rule. The initial indications are
that facilities will be required to comply with the standards at all
times, including these events. EPA has still not come to grips with how
to reconcile the court order vacating the use of the general duty
clause for SSM events and the concept that all technology will fail.
One should expect a 45 day comment period for all four proposed rules
with no possibility for any extensions.
RICE Final Rule
On February 17, 2010, the EPA Administrator signed the reciprocating
internal combustion engine (RICE) final rule. EPA received a large
number of comments on the proposed startup, shutdown, and malfunction
provisions. EPA determined that emissions during startup of CI
(compression ignition) engines would be significantly different than
emissions during normal operations. They also determined that any
exhaust pipe treatment methods would also not work immediately since
they require a minimum threshold temperature to be effective. They also
reasoned that none of EPA’s methods could gather emissions information
during this period because it was too short and conditions are
constantly changing. As a result, they decided to set a work practice
standard under section 112 (h) of the Clean Air Act for this source
category. The final rule requires owners and operators of these engines
to limit startup time to 30 minutes or less. In this rule, startup is
defined as the time from initial ignition to when the applied load and
engine and associate equipment reaches normal operations. For engines
with catalytic converters, this includes the time for the catalyst to
come up to temperature. In addition, the owner/operator is required to
minimize the engine time spent at idle. Regarding shutdown, EPA
determined that it not necessary to set different standards for
shutdown since the shutdown period is only a matter of minutes and
commenters did not provide any information that emissions would be
significantly higher during shutdown. EPA determined that add-on
controls would likely continue to operate effectively as the engine was
shutting down since they would already be at effective temperatures.
At proposal, EPA provided two options for malfunctions. One was to set
the same standards as normal operations and the other was to set
numerical standards based on emissions during the warm up of catalytic
controls. EPA decided to require these engines to meet the normal
operating standard during malfunctions. EPA’s logic for this is as
follows. EPA agreed that startup, shutdown, and normal operations are
distinct modes that are predictable and routine aspects of operations.
By definition, malfunctions are sudden, infrequent, and not
predictable. EPA decided that malfunctions should not be viewed as a
distinct operating mode. EPA went on to explain that even if it were
considered to be a distinct operating mode, it would be impractical to
set standards during malfunctions because they are sudden and short
duration events and it would be difficult to set standards that would
take into account the many different possible malfunctions that could
occur. Finally, EPA decided that malfunctions would not cause
stationary CI engines to violate any standards that apply during normal
operations. They also reasoned that the current approach would
encourage shutdowns as soon as practicable when a malfunction that
impacts emissions occurs. In addition, EPA states that in the unlikely
event that a source fails to comply during a malfunction event, the
Agency would take appropriate responses based on good faith efforts by
the source to minimize emissions.
To summarize, EPA set numerical standards for normal operations, a work
practice standard for startups, and decided that engines could easily
meet the numerical standards for normal operations during shutdown and
malfunctions. This rule should be published early in March.
Dioxin Draft PRGs Comment Period
Extended
On February 22, 2010, EPA extended the comment period for the draft
guidelines on recommended interim preliminary remediation goals (PRG)
for dioxin in soils until April 2, 2010.
RPF for PAH Mixtures
On February 26, 2010, EPA announced an external review draft document
entitled Development of a Relative
Potency Factor (RPF) Approach for Polycyclic Aromatic Hydrocarbons
(PAH) Mixtures (EPA/635/R-08/012A). EPA is looking to use this
as one approach to assess cancer risks for mixtures of PAHs. This is
not an assessment of the individual PAH carcinogenicity but an effort
to estimate cancer risk from mixtures by summing doses of components
after scaling relative potency to an index PAH (in this case
benzo[a]pyrene). Cancer risk is then estimated using the dose-response
curve for that index PAH. This appears similar to the toxic equivalency
factors currently used for dioxins and furans. EPA will hold a
listening session on April 7, 2010, and will accept comments until
April 27, 2010. Additional details can be found in the Federal Register notice and a copy
of the document can be found at www.epa.gov/ncea.
Hydrogen Sulfide Reporting
In 1993, EPA added hydrogen sulfide to the reporting requirements under
the Emergency Planning and Community Right-to-Know Act. In 1994, EPA
issued an administrative stay of the reporting requirements in order to
evaluate issues brought to the Agency’s attention after the rule was
finalized. That evaluation is now finished and EPA is proposing to lift
the stay (February 26, 2010, Federal
Register notice). Comments on whether EPA should lift the stay
will be accepted until April 27, 2010. After consideration of the
comments, EPA will issue another Federal
Register notice responding to comments and taking appropriate
action.
Broadly Applicable Alternative
Test Methods
On February 22, 2010, EPA published a list of broadly applicable
alternative test methods that have been approved between January 1,
2009, and December 31, 2009, for use in showing compliance with New
Source Performance Standards and National Emission Standards for
Hazardous Air Pollutants. This list includes alternatives to Methods
305, 23, 26A, and 29. A complete list of approved alternatives can be
found in the Federal Register
notice and at www.epa.gov/ttn/emc/approalt.html.
Arsenic
On February 19, 2010, EPA announced the availability of a draft
document entitled Toxicological
Review of Inorganic Arsenic: In Support of the Summary Information on
the Integrated Risk Information System (EPA/535/R-10/001). EPA
will take comments on the document until April 20, 2010. A copy can be
found at www.epa.gov/ncea.
Chromium 6
Chromium 6 has long been considered as a human carcinogen when inhaled
but the carcinogenicity when ingested has been widely debated. In 2007,
a National Toxicology Program study reported mouth and stomach cancers
in laboratory animals exposed to chromium 6 in their drinking water.
EPA continued to maintain their current program of regulating total
chromium in drinking water. Activists argue that this is not
appropriate since chromium 3 is an essential element in small doses.
Acting in a personal capacity, EPA scientists have submitted a paper to
Environmental and Molecular
Mutagenesis that makes the case for including ingestion as a
means of exposure for chromium 6. These individuals came to this
conclusion after running the exposure data through EPA’s draft
framework for assessing mutagens and determining that ingested chromium
6 would change gene structure. The paper recommends applying linear
modeling and appropriate safety factors in developing exposure
guidelines for ingested chromium 6. The paper should be published next
month.
EPA Rulemaking Gateway
EPA has set up a new website (www.epa.gov/rulemaking)
to improve
transparency in its rulemaking process. The information in this web
page appears to be similar to what is already in the semi-annual
regulatory agenda but may be updated more frequently.
Coal Ash Rule
On February 4, 2010, EPA released action plans for 43 surface
impoundments of combustion coal ash operated by 22 different companies.
These plans outline what EPA thinks the companies can do to improve
safety and structural integrity of their coal ash waste ponds. A number
of companies whose ponds were rated as “poor for continued safe and
reliable operations” are trying to get EPA to change those
recommendations. While this is not a part of the current rulemaking on
whether coal ash should be regulated as a hazardous waste, some
observers see this as a way for EPA to show that problems may be
experienced at other sites and justify the current rulemaking. Others
see this as a way of addressing the current problems without declaring
coal ash as a hazardous waste. One thing these plans point out is the
difficulty in using federal programs to enforce safety at locations
currently regulated by states. The proposed rule to regulate coal ash
as a hazardous waste went to the Office of Management and Budget on
October 16, 2009. It is still under review. EPA recently announced that
they expected the proposed rule to be published sometime in April 2010.
Hale to Retire
On February 18, 2010, Matt Hale announced his decision to retire,
effective March 31, 2010. Mr. Hale is currently Director of EPA’s
Office of Resource Conservation and Recovery. Mr. Hale has been
involved with the HWC MACT rule since its inception. A replacement has
not yet been named.
Climate Change – Regulations
EPA has experienced considerable difficulties in developing consensus
on what would be best achievable control technology (BACT) for
greenhouse gas emissions. EPA has been using the climate change work
group of their Clean Air Act Advisory Committee to address this issue.
This group has been able to agree on some broad issues but remain
divided on others. For example, the group agreed that EPA should
consider the feasibility of capturing and sequestering carbon dioxide
in deciding whether this technique should be considered as BACT. They
also agreed that energy efficiency could be considered as part of BACT
and suggested that EPA consider energy efficiency on a sector-by-sector
basis. However, they had trouble agreeing on whether switching from
high greenhouse emitting fuels (coal) to lower emitting fuels (natural
gas) should be considered as BACT.
On February 4, 2010, California’s Bay Area Air Quality Management
District issued a permit to Calpine Corporation to build a natural gas
power plant. This permit includes the first BACT-based greenhouse gas
limits for a power plant. The facility will be required to use
efficiency measures including combined cycle technology and to ensure
that greenhouse gases are not emitted from their circuit breakers.
Calpine Corporation stated that getting the permit cost “north of seven
figures.”
On the same day, EPA Region 8 announced a consent decree with
ConocoPhillips that requires the company to install greenhouse gas
(methane) emissions controls on their natural gas compressor stations
and well heads in Colorado. This agreement was a part of a settlement
to resolve alleged Title V operating permit violations. In a separate
agreement with activist groups, EPA has agreed to review its permitting
requirements for all natural gas production sites.
On February 19, 2010, Senator Jay Rockefeller IV (D-WV) sent a letter
to EPA Administrator Lisa Jackson asking several questions on how EPA’s
current efforts to regulate greenhouse gases would impact industry. In
her reply, Administrator Jackson indicated that there would be no
greenhouse gas emission limitation in permits for stationary sources in
2010. She expects to start phasing in greenhouse gas permit limits for
stationary sources to begin in 2011. She indicated that process would
continue through 2013 working through greenhouse emitting sources
starting with the largest sources. She indicated in the letter that it
was unlikely that EPA would reach sources that emit less than 25,000
tons per year by 2013. She also indicated that EPA does not intend to
subject smaller sources of greenhouse gas emissions to permit
restriction prior to 2016. While the letter did not state this, it is
assumed that smaller sources means those emitting les than 25,000 tons
per year. Senator Rockefeller also asked whether Administrator Jackson
believes that the Prevention of Significant Deterioration tailoring
rule can be defended in court. Administrator Jackson responded that she
believed that it was lawful and would not propose a rule that she did
not believe would survive judicial review. Senator Rockefeller also
asked about BACT for greenhouse gases. Administrator Jackson responded
that EPA continues to review and analyze options in defining BACT
stating that EPA’s goal will be to identify practical, achievable, and
cost effective strategies for minimizing greenhouse gas emissions. She
went on to state that one of the factors would be commercial
availability of a given control technology and specifically mentioned
capture and sequestration.
EPA based their endangerment finding in part on the Intergovernmental
Panel of Climate Change (IPCC) reports. Several errors in these reports
have recently emerged, creating a certain level of doubt in the
accuracy of the entire report. As a result, several companies and
groups have petitioned EPA to reconsider its endangerment findings. For
example, Peabody Energy Company submitted a 238 page petition on
February 11, 2010, arguing that EPA relied almost exclusively on the
flawed IPCC reports and that the finding was not based on reliable and
accurate scientific conclusions. On February 12, 2010, the Competitive
Enterprise Institute also filed a petition for reconsideration of the
finding citing the new information that the IPCC reports contain
errors. EPA has not responded to these petitions.
Climate Change – Courts
The list of groups challenging and defending EPA on their endangerment
finding continues to grow. The first industry group filed a petition to
review the endangerment finding on December 23, 2009. A group of 16
states filed a petition to intervene on behalf of EPA on January 22,
2010. On February 9, 2010, 12 Republican Congressmen and several
business groups filed a petition to review. On February 12, 2010, the
U.S. Chamber of Commerce filed a petition to review and on February 16,
2010, the Competitive Enterprise Institute filed a petition to review.
In addition, the State of Texas filed a petition for reconsideration
and a petition to review on February 16, 2010. At this stage of the
process, petitioners do not file a statement of issues or indicate what
they will be challenging. However, most are expected to use the
recently discovered errors in the IPCC report as a basis for the
challenge. Some observers believe that a challenge to the endangerment
finding is premature since EPA has not yet issued any regulations based
on the finding. Others differ, stating that if you don’t file now, you
lose the right to challenge subsequent regulations.
Climate Change – Legislation
There has been no additional action on Senate Joint Resolution 26, a
measure introduced in January by Senator Lisa Murkowski (R-AK)
disapproving EPA’s endangerment finding. However, the level of rhetoric
has been high. Senator Barbara Boxer (D-CA) introduced into the
Congressional Record a letter from 195 scientists opposing the
resolution. Environmental groups have attacked the resolution as an
unprecedented attempt by Congress to overturn and undermine
peer-reviewed scientific findings. Senator Murkowski responded that at
least 41 Senators are already on the record as supporting this
resolution, noting that this was about the same number of Senators that
support the current Senate climate change bill. Senator Murkowski
expects a vote on the resolution in March and suggests she has the 51
votes needed to get it passed. Even if it passes the Senate, it is not
expected to pass the House nor is it expected that President Obama
would sign the resolution.
Senators John Kerry (D-MA), Joe Lieberman (I-CT), and Lindsey Graham
(R-SC) continue to work on developing an alternative to the currently
stalled Senate climate change legislation. Several different drafts
have been circulated. Most see them as trial balloons, checking to see
which ideas generate the most support. Ideas that have been floated
include delaying the imposition of limits until 2014 or even as far as
2020. Others include language to expand offshore oils and gas drilling
and putting nuclear energy on par with wind and solar energy. At this
time, no one believes that any legislation has close to the 60 votes
needed in the Senate.
Meanwhile, MoveOn.org has started an ad campaign against three Democrat
Senators that have co-sponsored Senate Joint Resolution 26. These ads
target Senators Ben Nelsen (D-NE), Mary Landrieu (D-LA), and Blanche
Lincoln (D-AR). All three are up for re-election this fall and are
considered vulnerable based on their support of health care reform
legislation. The ads will attempt to link the climate debate with the
push for tobacco regulations in the 1990s. Senators Landrieu and
Lincoln describe the ads as deceptive.
Climate Change – Science
The University of East Anglia has initiated an independent review of
their Climate Research Unit. The University has asked the Royal
Society, England’s national science academy, to find independent
scientists to staff the inquiry. The Intergovernmental Panel for
Climate Change (IPCC) is also in the process of setting up an
independent review of their reports. One of the problems for both of
these organizations is finding scientist that are independent of the
process because the majority of climate scientists are already a part
of the IPCC process.
CRWI Meeting
The next CRWI meeting will be held on May 17, 2010, in conjunction with
the IT3 conference (San Francisco, CA). For more information,
contact CRWI.
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