 Coalition for
Responsible Waste Incineration
CRWI Update
January 31, 2008
HWC MACT
EPA sent their final decisions on the eight reconsiderations granted in
2006 and the technical amendments proposed on September 6, 2006, to the
Office of Management and Budget (OMB) on December 21, 2007. EPA has
been finished with these for some time but has held them back while
they make their decision on which standards to redo and which to defend
(as a result of the Brick MACT decision). EPA has not indicated whether
they made any changes to the eight reconsiderations based on comments
received. In addition, it is thought that EPA will finalize all of the
technical amendments as proposed except one (changing the units of the
PM standard from gr/dscf to mg/dscm). EPA has also indicated that a
second package that addresses EPA’s responses to comments on the “legal
analysis” (proposed September 27, 2007) will go to OMB early in
February. It is EPA’s intent to have a signed rule for these actions by
February 29, 2008. While it is clear that EPA needs to publish final
decisions on the reconsiderations and to publish the technical
corrections, it is not clear that they need to publish any final
decisions on the comments from the “legal analysis.” These are to be
reported to the court and may not need a Federal Register notice. However,
they may feel the need to inform OMB of what they are doing.
On February 29, 2008, all parties are expected to report to the court
in a motion to govern further proceedings. EPA is expected to tell the
court that they plan to take a voluntary remand for the standards they
listed in the “legal analysis.” The only change from the list of
standards to be remanded (see the August 2007
Update) is that certain
Phase I standards (e.g., mercury and chlorine thermal standards for
cement kilns) will be vacated while the rest are merely remanded. EPA
is justifying this difference because cement kilns have a dual standard
for mercury and chlorine (one is concentration based, the other is
based on thermal units). EPA is not expected to add to or take away
from the list of standards to be redone. EPA will start the rulemaking
process to redo these standards in March. EPA expects this to be a 3
year process. Readers are cautioned that, in the past, nothing in this
rule has happened on time. One should not expect the next step to be
any different.
While it is clear that EPA will ask that certain standards be remanded,
it is not clear what will happen to the rest of the litigation. For the
standards to be revised, EPA will ask that any litigation on those
standards be held in abeyance until EPA finishes the revision process.
It is less clear how the rest of the litigation will be handled.
Update IV of SW-846
On January 3, 2008, EPA announced that final Update IV for SW-846 was
available. Unlike past updates, this notice is a guidance document
rather than a final rule. When EPA published their Methods Innovation
Rule, they removed from RCRA regulations the requirement to use
analytical methods found in SW-846, unless that method is the only one
capable of measuring that parameter. This rule also allows EPA to issue
final updates to SW-846 as guidance documents instead of final rules.
Update IV contains four tables. Table 2 provides a listing of 24
revised methods and seven revised chapters. Table 3 provides a list of
23 new analytical methods. Table 4 provides three air sampling methods
for which EPA is providing references. Table 5 identified 44 analytical
methods that are integrated into other methods or deleted. All but one
of the methods in Table 5 are individual flame or graphite furnace
atomic absorption techniques. The other is an obsolete headspace
screening method.
Definition of Solid Waste
Exclusion
Currently, certain oil-bearing secondary materials that are generated
at a petroleum refinery and are inserted back into the process (into
distillation, catalytic cracking, fractionation, or thermal cracking
units) are excluded from the definition of solid waste as long as these
materials are not placed on the land or speculatively accumulated.
These materials are hazardous either because they are listed in 40 CFR
261, Subpart D or because they exhibit a hazardous characteristic under
40 CFR 261, Subpart C. On January 2, 2008, EPA extended this exclusion
to include wastes that are fed into a gasification unit. The notice
also included a definition of gasification that applies only to this
provision. The notice contains regulatory changes to 40 CFR 260.10
(definitions) and 261.4 (exclusions). When proposed, EPA developed a
separate exclusion for materials that were taken to a gasification
unit. After the comment period, EPA decided that a separate exclusion
was not necessary and simply added gasification to the list of already
existing exclusions. This exclusion is not restricted to the refinery
where these materials were generated. It also allows them to be shipped
to other refineries. Any residuals from the gasification process will
be treated like any other refinery waste. In other words, it will be
classified as newly generated and would be considered as hazardous only
if it exhibits one or more characteristics of a hazardous waste. While
this new exclusion is fairly narrow and will not exclude a large amount
of materials, it does remove materials from regulations, something EPA
is often reluctant to do.
SAB Expert Panel
EPA’s Science Advisory Board (SAB) is forming an expert panel to review
and provide advice on draft risk assessments that evaluate the impacts
of industrial emissions of hazardous air pollutants on public health
and the environment. Nominations to the panel should be submitted by
February 21, 2008. Additional details can be found in the January 31,
2008, Federal Register
notice.
IRIS Peer Review Panel
EPA announced that the panel to review the draft toxicological review
of 1,2,3-trichloropropane for inclusion in the Integrated Risk
Information System (IRIS) will meet on February 20, 2008. Additional
details can be found in the January 18, 2008, Federal Register notice.
DOT List of Hazardous Substances
and Reportable Quantities
Although the Department of Transportation (DOT) does not have any
authority to decide what is hazardous or what amounts of the hazardous
material are reportable, they do have a responsibility to create and
maintain a list for transporters that is compatible with EPA’s list. In
a January 7, 2008, Federal Register
notice, DOT revised Table 1 of Appendix A to §172.101 (List of
Hazardous Substances and Reportable Quantities) to be consistent with
EPA’s List of Hazardous Substances and Reportable Quantities in 40 CFR
302.4 (Table 302.4). The effective date for this new list is March 31,
2008. Voluntary compliance may begin February 29, 2008. Additional
details can be found in the notice.
Executive Order
On January 29, 2008, President Bush issued Executive Order 13457. This
directs all Executive Branch agencies not to “commit, obligate, or
expend funds on the basis of earmarks from any non-statutory source,
including requests included in congressional committee reports or other
congressional documents, or communications from or on behalf of Members
of Congress, or any other non-statutory sources.” This order will
eliminate the common practice of hiding earmarks in report language
from House and Senate committees. If a Congressman and Senator want to
earmark funds for certain projects, they now must be included in the
statutory language of the appropriations bill, a much harder task and
presumably one where more people will get a chance observe the process.
The order does not apply to the current fiscal year but will apply to
all future appropriations laws. Some observers believe that it will not
make any real difference depending upon when the FY 09 appropriations
bills are enacted. The new President may choose to rescind the order
rather than fight with Congress over it.
PM Non-Attainment
Critics of tighter fine particulate matter (PM 2.5) standards argue
that there is little they can do about meeting current or tighter
future standards because the majority of the PM 2.5 comes from sources
outside the United States. To address this question, the National
Aeronautics and Space Administration, the National Oceanic and
Atmospheric Administration, the National Parks Service, and the
University of Maryland conducted a study, using 2001 emissions data, to
determine the source of fine particulates in the United States. The
study found that between 65 and 70 percent of the PM 2.5 in the Eastern
United States comes from domestic sources. In the Western United
States, only about 30 to 40 percent comes from domestic sources. The
report, entitled Intercontinental
Transport of Air Pollutions & Dust Aerosols: Implications for
Regional Air Quality, does not seem to be posted on the web yet.
Data Quality Act Challenge
The Data Quality Act was passed as a part of the 2001 Treasury
Department appropriations. It is widely seen as a tool for obstruction
and delay which industry groups have used to challenge federal agency
actions. In the past, environmental groups have avoided using this tool
for fear that any use by them would lend credence to the legislation.
This changed with the refinery residual risk proposed rule. In this
proposed rule, EPA used industry provided data to calculate the
residual risk from refinery emissions. In their comments on this
proposed rule, the Environmental Integrity Project objected to the use
of the “incomplete and unreliable data” used to make the estimates of
residual risk for this category. They stated that the current data does
not meet the requirements of the Data Quality Act and should not be
used to make a residual risk determination for this category. In their
response to comments, EPA will be forced to respond to these challenges
or leave themselves open for the final rule to be overturned by the
appeals court. This may create a situation for future rules where all
data, both EPA gathered data and data submitted by interest groups,
will have to meet the Data Quality Act requirements before it can be
used in agency actions. This could significantly slow already slow
agency actions.
Clinton Introduces Environmental
Justice Legislation
On January 23, 2008, Senator Hillary Clinton (D-NY) introduced S. 2549,
a bill that seeks to ensure that the development and implementation of
federal policies does not result in a “disproportionate burden” on
minorities. Congresswoman Hilda Solis (D-CA) introduced a companion
bill in the House (H.R. 5132). The House bill has one co-sponsor and
the Senate bill has none. Given the lack of co-sponsors and the
lateness for getting these bills introduced, it is unlikely that either
will see much action before the end of this session. The only reason
this legislation may see much activity may be if Senator Clinton uses
it as a tool in her primary race against Senator Barak Obama (D-IL).
Climate Change
The House Energy and Commerce Committee has released their second white
paper in preparation for developing legislation on climate change. The
premise of this paper is that the United States cannot act alone in the
regulation of greenhouse gases. To do so would put U.S. industry at a
competitive disadvantage and may result in the relocation of jobs to
countries that do not attempt to control greenhouse gas emissions. The
paper tries to address the question of how should the U.S. try to
reduce our greenhouse gas emissions without harming our economy and how
to entice Third World countries to also control their emissions while
still growing their economies. It acknowledges that the U.S. cannot
compel other countries to reduce greenhouse gas emissions and that any
trade barriers may conflict with World Trade Organization agreements.
Three options of how U.S. legislation can impact greenhouse gas
emissions from other countries are discussed. The first option is to
require that to be able to import certain “greenhouse gas intensive
goods” into the United States, the importer must submit sufficient
allowances to cover the emissions produced during the manufacturing of
that good. The second option would be to establish a limit on the
amount of carbon that can be emitted during the production of all
energy intensive materials to be sold in the United States, whether it
is of domestic or foreign origin. The third option is a combination of
the previous two with added incentives for Third World countries to
reduce carbon emissions. The paper also asks for comments on how these
ideas can avoid conflicts with current or future World Trade
Organization agreements. The Committee plans to hold a hearing on these
ideas on February 28, 2008.
The Senate Environment and Public Works Committee has still not
released the report on S. 2191, as passed by the Committee in December.
It is not clear why the report is being delayed. Floor debate on the
bill will not be scheduled until the report is issued.
The National Governors Association is looking at combining three
regional cap-and-trade plans (Regional Greenhouse Gas Initiative, the
Western Climate Initiative, and the Midwest Greenhouse Gas Reduction
Accord) into a single plan. The pact would have 35 states and the
District of Columbia as participants. While the concept seems easy on
the surface, significant problems would exist in combining the three
plans. For example, the Regional plan only governs the power sector and
starts selling credits in July 2008 while the other two cover all
sectors and have not set a date for auctioning credits.
Developing methods to properly sequester carbon dioxide is likely to
prove difficult to do. EPA’s Underground Injection Control (UIC) office
currently allows for the injection of certain types of hazardous waste
where it can be shown that the waste will not migrate out of the
injection zone for 10,000 years. Carbon dioxide does not act like a
liquid waste under these conditions. In fact, the Lawrence Berkley
National Laboratories ran a simulation on injecting carbon dioxide into
a saline aquifer that is 7000 feet below the surface near Katy, TX.
This is the type of aquifer that the UIC program would consider for the
injection of liquid waste. The simulation showed that the carbon
dioxide would migrate up to 1.5 miles in approximately 30 years,
probably encountering another well within 25 years. While the amount of
carbon dioxide released would be small, it does show the problems with
containment of a gas in underground aquifers. In part to address some
of these concerns, EPA has scheduled the next workshop on underground
injection of carbon dioxide for February 26-27, 2008, in Arlington, VA.
Details of the meeting can be found in the January 30, 2008, Federal Register notice.
EPA’s Environmental Appeals Board rejected the challenge by Sierra Club
on the Christian County power plant in Illinois on procedural grounds
(Sierra Club failed to bring up their concerns about carbon dioxide
emissions during the comment period). However, they did not rule on
whether EPA is required to regulate carbon dioxide emissions in
facility’s permits before the Agency develops regulations for new
stationary sources. This leaves the door open for appeals on other
power plant permit applications by activist groups that all air permits
for power plants must contain emission limitation for carbon dioxide.
There continues to be considerable controversy over how EPA should
respond to last year’s Supreme Court decision that EPA must regulate
greenhouse gases for mobile sources. The major questions seem to be
that if EPA makes an “endangerment” finding, the wording of certain
sections of the Clean Air Act will force EPA to write regulations
governing greenhouse gas emissions from stationary sources either
through the new source performance standards section or the prevention
of significant deterioration permits program. In addition, it may
require the development of a National Ambient Air Quality Standard for
carbon dioxide. Activist from all sides have been pushing EPA in the
direction they want them to go. Industry sent a letter to the White
House, urging them to stop the current process of writing standards for
mobile sources because of the “grave consequences” for industry sectors
beyond mobile sources. Others have argued that EPA does not have to
make an “endangerment” finding to carry out the requirements of the
Supreme Court decision. Other groups are arguing that EPA should
regulate stationary sources under Section 112 (air toxics) rather than
the more restrictive new source review program. As expected, the
environmental groups and Democrats in Congress are pushing the Agency
to make an endangerment finding for both human health and the
environment and to follow up regulation of mobile source with
regulations for stationary sources. Perhaps the largest concern from
industry is how will EPA require reductions in greenhouse gas
emissions? The technical aspects of scrubbing carbon dioxide from stack
gas emissions are difficult and costly. Once the carbon dioxide is
captured, it is even more unclear what will be done with it. There are
no clear technical answers at this point in time.
Finally, the California Climate Action Registry has announced that it
will begin working on a protocol to allocate greenhouse gas reduction
credits for recycling activities. In a January 12, 2008, subgroup
meeting, the staff said that it will begin a scoping program within the
next few months to find recycling projects where greenhouse gas
emission reductions can be measured. Development of such a protocol
would be the first step in estimating greenhouse gas credits for the
recycling industry.
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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