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Coalition for
Responsible Waste Incineration | Gas-fired | Coal-fired | Wood-fired | Oil-fired | |
| CO (ppmv) | 3 – 10 | 35 – 60 | 100 – 150 | 3 – 10 |
| PM (lb/MMBtu) | No control | 0.008 – 0.012 | 0.01 – 0.02 | 0.015 – 0.025 |
| HCl (lb/MMBtu) | No control | 0.015 – 0.030 | 0.006 – 0.012 | 0.0006 or 90-95%removal |
| Hg (lb/TBtu) | No control | 4.50 – 7.50 or 90% removal | 2.50 – 4.50 | No proposal |
From the publication, it is not immediately obvious what the averaging period for each of these standards would be but it appears to range from 3 hours for PM and HCl to 30 days for CO and mercury for at least one subcategory. It is also interesting to note that the model rule suggests no controls or has no proposal for certain HAPs. A copy of the model rule and the data base used to develop the standards listed above can be found at www.4cleanair.org.
Residual Risk
The Clean Air Act Amendments of 1990 set up a two tiered regulatory scheme. First, EPA is required to set technology-based standards and then is required to check these technology-based standards to ensure that they do not pose any additional risk to human health and the environment. This second step is called the residual risk program. In setting the parameters for the residual risk program, Congress gave EPA two, potentially conflicting, sets of instructions. One was based on a bright line risk of one-in-a-million and the other was based on the benzene NESHAP model. EPA chose the benzene NESHAP model, telling Congress of this decision in 1999. EPA then started promulgating residual risk rules based on this model. EPA promulgated the residual risk rule for the synthetic organic chemical manufacturing sector in December of 2006. The Natural Resources Defense Council and the Louisiana Environmental Action Network challenged this rule, arguing that EPA should have used the “bright line” of one-in-a-million approach instead of the benzene NESHAP model.
On June 6, 2008, the U.S. Court of Appeals for the District of Columbia Circuit upheld EPA’s use of the benzene NESHAP model. This gave EPA one of its first victories on Clean Air Act rules in a long time. In addition, the court ruled that EPA is not required to recalculate the MACT floor every eight years and that EPA does not have to have perfect scientific information on which to base a standard, only reasonable data. This is a major win for EPA and the regulated industry and will have significant ramifications. The most obvious one is that EPA can use either method in promulgating residual risk rules.
However, there are some less obvious ramifications of the ruling. The environmental groups have taken the ruling to mean that the use of the benzene NESHAP model is a policy judgment by the Bush Administration and this decision could be changed by a new administration. Thus, a more favorable (to them) administration under a Democrat may change that decisions and use the “bright line” approach to promulgate any future residual risk rules and, perhaps, redo any past residual risk rules.
An even less obvious ramification is that the environmental groups have been holding back petitions to re-open potentially unlawful MACT standards (based on the recent brick MACT, boiler MACT, and plywood MACT decisions) waiting on a ruling on the residual risk rule. If the court had told EPA that using the benzene NESHAP model was incorrect and they should have used the one-in-a-million “bright line,” the environmental groups would have been satisfied with using the residual risk program to catch any errors in the technology based standards. Now that the court has said that EPA can use the benzene NESHAP model, the environmental groups are now considering filing petitions on all of the previously promulgated MACT standards that use either no control floors, work practices instead of numerical standards, or any other illegal standard as defined by the most recent MACT rulings. This could create a large amount of work for the Agency in just responding to the petitions, let alone any efforts that might be needed to revise existing MACT rules that might now be suspect.
The Clean Air Act gives EPA a lot of discretion on how to write these rules. A different administration may interpret the statute differently. For example, the residual risk section appears to give EPA the option of using a “bright line” of one-in-a-million or the benzene NESHAP model. It does not tell them which one to use. Their current use of the benzene NESAHP model is based on policy decisions of the current administration. A new administration could change that policy and do all subsequent residual risk determinations on a “bright line” of one-in-a-million. They could even go back and redo all previous residual risk rules. There is nothing in the Act that prevents this. The only constraint is Agency resources. The same can be said about the methods used to select top performers. The statute does not tell EPA what methods to use. Thus, there could be a large number of changes depending upon who gets elected as President in November.
Comparable Fuels
On June 26, 2008, EPA sent the final rule expanding the comparable fuels exclusion to the Office of Management and Budget (OMB). OMB now has 90 days to review the rule. Expect the final rule to be published in October or November of 2008.
HW Delisting
On May 20, 2008, Louisiana Department of Environmental Quality published a notice of intent to delist Lyondell Chemical Company’s direct contact cooling water and their fire suppression automatic sprinkler system wastewater. Currently, the primary cooling wastewater is pH adjusted and discharged at an LPDES permitted outfall. After delisting, the effluent will continue to be discharged after treatment under their current LPDES permits. Routine operation will not change. Lyondell is seeking the delisting to reduce potential liability from an unplanned, non-recurring cooling system leak or a catastrophic fire. The Delisting Risk Assessment Software was one of the tools Louisiana used to justify granting this petition. A public hearing was held on June 24, 2008. A copy of the notice of intent can be found at www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/HW099Ppro.pdf
IRIS
EPA continues to update their Integrated Risk Information System (IRIS) data base with draft toxicological reviews for cerium oxide and cerium compounds (June 3, 2008), beryllium (June 4, 2008), carbon tetrachloride (June 24, 2008), and tetrachloroethylene (June 26, 2008). Additional information can be found in their respective Federal Register notices.
Toxicity Equivalence Methodology
On June 16, 2008, EPA announced the availability of the final Framework for Applicability of the Toxicity Equivalence Methodology for Polychlorinated Dioxins, Furans, and Biphenyls in Ecological Risk Assessment (EPA/100/R-08/004). This document is designed to assist anyone using the toxicity equivalence method to assess ecological risk from mixtures of dioxin-like chemicals. A copy can be found at www.epa.gov/osa/raf/tefframework.
Climate Change
On June 2, 2008, the Senate voted 74 – 14 to begin debate on the S. 3036. Senator Barbara Boxer (D-CA), the floor manager for the legislation, then introduced a 492 page substitute bill for the legislation that had passed the Committee. Angry with Democrats for refusing to consider President Bush’s judicial nominees, Republicans used Senate rules to require that all proposed amendments to the legislation be read aloud. This included the 492 page substitute bill. By the end of the week, Senate Leader Harry Reid (D-NV) called for a cloture vote to end debate on the bill. The vote was 48 – 36, well short of the 60 required to shut off debate. The bill was pulled from consideration, minimizing any hopes the Senate would pass climate change legislation in this Congress.
The House Energy and Commerce Committee held two hearings in June. One was on the current legislative proposals that have been introduced in the House of Representatives and the second was on the costs associated with inaction on the climate change issue. Even though the hearings continue, most observers do not believe that Chairman John Dingell (D-MI) will introduce his climate change legislation in this Congress. Meanwhile, Congressman Rick Boucher (D-VA) and 16 co-sponsors introduced H.R. 6258, a bill to set up an organization to issue grants and contracts to accelerate the commercial demonstration of carbon dioxide capture and sequestration techniques. The organization would obtain its funds with a tax on coal ($0.00043 per kilowatt hour), natural gas ($0.00022 per kilowatt hour), and oil ($0.00032 per kilowatt hour). No hearings for this bill have been scheduled. In addition, Congressman Lloyd Doggett (D-TX) and 87 co-sponsors introduced H.R. 6316, a cap-and-trade climate change bill that has been referred primarily to the House Ways and Means Committee. This is widely seen as an attempt to bypass Congressman Dingell’s Energy and Commerce Committee. A number of Democrats believe that Congressman Dingell’s close ties to the automotive industry is the cause for his deliberate approach on climate change legislation. Most observers do not expect H. R. 6316 to get very far in this Congress.
Given the failure of the Senate to get closure on S. 3036 and the House Energy and Commerce Committee’s pace for introducing climate change legislation, it now appears very unlikely that any significant legislation limiting emissions of greenhouse gases will be passed in this Congress.
EPA currently has two rules pertaining to greenhouse gases under review by the Office of Management and Budget (OMB). One is the minimum requirements for underground injection of carbon dioxide. This proposed rule was sent to OMB on June 4, 2008. The other is the advanced notice of proposed rulemaking on whether EPA should make an endangerment finding that carbon dioxide is a pollutant under the Clean Air Act. This was sent to OMB on June 18, 2004. EPA has indicated that they will release this rule to the public the week of July 7, 2008. Since OMB review will not be completed by that time, EPA must be planning on releasing the draft that was sent to OMB. EPA seldom does this because they do not want outside parties to know how to lobby OMB. Under normal circumstances, OMB would take a full 90 days to review each of these actions. Given all the controversy over the endangerment finding and the interest in the Bush Administration on this topic, there is no telling how long this review will last.
On June 26, 2008, the U. S. Court of Appeals for the District of Columbia Circuit rejected a request from 17 petitioners to force EPA to respond to the Supreme Court ruling that carbon dioxide is a pollutant under the Clean Air Act (Massachusetts v. EPA). It seems that taking a year to respond to the court is not considered as excessive delays. Meanwhile, a Georgia state superior court ruled on June 30, 2008, that the state department of the environment should conduct a best available control technology review for carbon dioxide as a part of a prevention of significant deterioration permit for a planned 1,200 megawatt power plant (Friends of the Chattahoochee Inc. v. Georgia Department of Natural Resources). Observers are concerned that this ruling may open the door for regulating carbon dioxide under the Clean Air Act on a state-by-state basis.
On a similar note, last year Washington State passed legislation that requires power plants to develop greenhouse gas mitigation plans. Fossil fuel power plants must calculate the maximum potential for carbon emissions and then provide for mitigation of those emissions. This can be done through mitigation projects or by purchasing credits. The legislation also required the Washington Department of Ecology to develop guidelines for sequestering carbon dioxide by June 30, 2008. They met that deadline.
Finally, on April 15, 2008, EPA released their Inventory of U. S. Greenhouse Gas Emissions and Sinks: 1990 – 2006 (EPA 430-R-08-005). Copies can be found at www.epa.gov/climatechange/emissions/usinventoryreport.html.
E-Manifest Legislation
Senator John Thune (R-SD) introduced a bill (S. 3109) to authorize EPA to adopt an electronic manifest system for tracking hazardous waste shipments. This legislation is similar to what was introduced in the last Congress but has been modified to address some of the concerns of the states and the Chairman of the Senate Environment and Public Works Committee, Senator Barbara Boxer (D-CA). The bill currently has two co-sponsors and has been referred to the Environment and Public Works Committee. There have been no indications of when hearing will be set for this bill. Unless something happens soon, passage in this Congress will be unlikely.
PCB Import
In 2006, Veolia petitioned EPA for an exemption to import up to 20,000 tons of PCB waste from Mexico. On March 6, 2008, EPA proposed to grant that exemption and asked for public comments on that decision. The comment period closed on June 5, 2008, and an informal public hearing was held on June 19, 2008. Industry commenters supported the decision and environmental groups, primarily the Lone Star chapter of the Sierra Club, opposed the decision. Sierra Club argued in their comments that the Port Arthur facility has a long history of non-compliance and is in a community already suffering from environmental justice issues. In the original petition, Veolia stated that they have a “very good compliance record.” A transcript of the public hearing should be in the docket (EPA-HQ-RCRA-2008-0123) early in July.
CRWI Meeting
The next CRWI meeting will be held on August 20-21, 2008, in Chantilly, VA. The major topic for discussion will be final decisions on which standards are to be redone and how we will respond. In addition, we will discuss a number of implementation issues. For more information, contact CRWI.
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