 Coalition for
Responsible Waste Incineration
CRWI Update
June 30, 2010
Boiler/CISWI proposed rules
The four proposed rules (boiler MACT, area source boiler, commercial
and industrial solid waste incinerator (CISWI), and the definition of
non-hazardous solid waste) were published in the Federal Register on
June 4, 2010. The original comment period was for 45 days and closed on
July 19, 2010. On June 9, 2010, EPA extended the comment period for
another 15 days. The new deadline for comments is August 3, 2010.
On June 23, 2010, 27 entities sent a letter to EPA Administrator Lisa
Jackson requesting a further extension of the comment period for the
four proposed rules. The 27 entities are mostly industry trade
organizations but also includes municipal electric generation
facilities in Ohio. The basis for the request is that 60 days is not
enough time to adequately develop comments on four major rules that
have an impact on a large segment of industry. The letter states that
even though EPA made the proposed rules available approximately a month
prior to the official publication date, most critical support documents
(including MACT floor analyses) were not put into the docket until the
proposed rule was actually published. In fact, some of the supporting
spreadsheets for the rule were not put in the docket until late June.
The letter points out several serious errors in the data base (e.g.,
using a conversion from total dioxin to toxic equivalents twice
resulting in significantly lower proposed standards, misclassification
of sources, etc.), the large number of regulated units being impacted
by this rule, and that other MACT rules have had longer comment
periods. The letter also points out that the “court ordered deadline”
is a deadline that EPA willingly accepted and can be re-negotiated. In
fact, EPA has already done that at least once for these rules. In sum,
the letter claims that industry cannot properly respond to all four
proposed rules in the time allotted and requests an additional 90 days.
EPA has not yet responded to the letter and it is difficult to predict
how they will respond. Given the volume of comments they are likely to
receive, the number of errors in the data base, and the number of
sources in the wrong categories, the Agency may have trouble getting
the data base corrected by the current December deadline, let alone
getting the final rule written.
PC MACT
The Portland cement (PC) MACT will be going to the Office of Management
and Budget (OMB) in the next couple of weeks for a final review before
being signed on August 6, 2010 (as now required under the court
deadline). The Portland Cement Association (PCA) is gearing up for one
final push to both the Agency and OMB. In addition to direct advocacy
to OMB, PCA is hoping to get other federal agencies (primarily the
Federal Highway Administration) to assist them based on the idea that
this rule will force an estimated 30 plants to close rather than
upgrade to meet the standards. This would reduce the domestic clinker
production by 27 million metric tons (approximately 20%) and
potentially increase imports of Portland cement. PCA is urging EPA to
add subcategories for high and low mercury content in the limestone
used, subcategories for whether the emissions of an in-line coal mill
are commingled or not, and urging EPA to allow the use of a
health-based alternative standard for hydrochloric acid. If EPA
finalized the rule as proposed, expect PCA to challenge the final rule
for using a HAP-by-HAP approach that results in no sources being able
to meet the standards, the failure to include provisions for startup,
shutdown, and malfunctions, requiring hydrochloric acid CEMs to show
compliance when the standards were developed from stack test data, and
developing a MACT-on-MACT standard for PM.
Formaldehyde
On June 2, 2010, EPA announced the availability of an external review
draft human health assessment entitled Toxicological Review of Formaldehyde
Inhalation Assessment: In Support of Summary Information on the
Integrated Risk Information System (IRIS) (EPA/635/R-10/002C).
This draft document finds a causal link between formaldehyde exposure
and several types of cancer and raised the upper bound lifetime unit
risk to 1.1 X10-4 per microgram per cubic meter for three
cancer types
(nasopharyngeal cancer, Hodgkin lymphoma, and leukemia) but
acknowledges that the mechanism for causing such cancers is unknown.
This revised estimate is about 10 times higher than the current upper
bound lifetime risk. In the press release for this document, EPA stated
that this change would make formaldehyde a “national risk driver.” Any
change in the cancer risk will have an immediate effect on the plywood
industry but it could quickly reach other industry sectors. EPA states
that this change will impact a number of industry sectors, including
motor vehicles, power plants, manufacturing facilities that use glues,
petroleum refineries, coking operations, incineration, and wood
burning. EPA recently required boilers and power plants to test for
formaldehyde emissions as a part of a Clean Air Act 114 request. While
they did not use this data to set proposed MACT standards for this
pollutant for boilers, they now have data on formaldehyde emissions
from various combustion sources. EPA will hold a listening session on
the draft assessment on July 27, 2010, in Arlington, VA. The comment
period will close on August 31, 2010.
ECF rule withdrawn
On June 13, 2010, EPA officially withdrew the emissions comparable
fuels (ECF) rule. This rule was originally published in December 2008
in the last days of the Bush Administration. The environmental groups
sued, arguing that this rule illegally allows companies to avoid
stringent hazardous waste regulations. In May, 2009, the Obama
Administration announced that it would withdraw this rule in response
to the lawsuit. The official reason is that EPA has concluded that ECF
materials are more appropriately classified as discarded materials and
should be regulated as hazardous wastes. The exclusions for comparable
fuels and synthetic gases promulgated in 1998 are not impacted by this
action.
Coal combustion residual
proposed rule
On June 21, 2010, EPA proposed to regulate coal combustion residuals
from electric utilities and independent power producers. Comments will
be accepted until September 20, 2010. Additional details can be found
in the May 2010 Update.
Tank labeling withdrawn
In March, EPA published a direct final rule making a number of
technical changes to correct or clarify several RCRA regulations. CRWI
and others pointed out that some of these changes were not corrections
but made substantive changes in the way facilities complied with the
regulations. On June 4, 2010, EPA withdrew the following four changes:
- The change to 40 CFR 262.34(a) that related to the
hazardous waste
accumulation time for large quantity generators;
- The change to 40 CFR 262.34(a)(2) that related to the date
upon
which each period of accumulation begins must be clearly marked and
visible for each container and tank;
- The change to 40 CFR 262.34(a)(5) that related to the
closure
requirements for tanks, containers, drip pads, and containment
buildings; and
- The change to 40 CFR 266.20(b) related to recyclable
materials used in a manner constituting disposal.
Basically, all four
changes were removed and the rules revert back to where they were prior
to the March 18, 2010, direct final rule.
Audit program for Texas flexible
permits
On June 17, 2010, EPA Region 6 offered holders of Texas flexible air
permits the opportunity to participate in a voluntary compliance audit
program intended to identify federally enforceable Clean Air Act
emission limitations, operating parameter requirements, and monitoring,
reporting, and recordkeeping requirements for all units covered by
flexible permits. The program does not eliminate the possibility of
civil penalties as a result of the audits but hints at methods for
bringing the units into permanent compliance with the federal standards
and the appropriate resolution of any civil penalties. As a part of
this notice, EPA states: “It is important to emphasize that although
participation in this Audit Program is voluntary, participants who
successfully complete the program will receive appropriate covenants in
resolution of noncompliance.” In another place, they state: “Nothing in
this notice should be read to preclude EPA from taking enforcement
action where it determines such action is appropriate to address
non-compliance.” Environmental groups have expressed concern that the
program will allow facilities to avoid liability for past
responsibilities.
Meanwhile, the Texas Commission on Environmental Quality (TCEQ)
proposed changes in their flexible permits program to address EPA’s
concerns. The modifications would add a specific reference to federal
standards such as best available control technology, add a requirement
for applicants to determine federal new source review (NSR)
applicability, modify the language making it clear that facilities may
not use flexible permits to avoid NSR requirements, and adding a
requirement to demonstrate that any new permit or modification to an
old permit would not interfere with attainment of national ambient air
quality standards. TCEQ will take comments on these proposed changed
until August 2, 2010. Given the proposed changes in the flexible
permits program, it is difficult to see where many facilities will take
advantage of EPA’s audit program.
Six risk assessments to be
reviewed
EPA has relied upon a number of studies conducted by the Ramazzini
Institute (Bologna, Italy) as a part of their risk assessments for
certain chemicals. Industry groups have protested using these studies
stating that their protocols differ significantly from those used by
American laboratories. The Ramazzini Institute protocol exposes the
animals to the chemical in question for the life of that animal.
American laboratories tend to expose for a specific time period and
sacrifice the animal. As an animal ages and dies, there is a certain
amount of disintegration of the cells (especially after death) that may
not be related to the exposure to the chemical but is a natural part of
aging and death. When the National Toxicological Program (NTP) reviewed
slides from the Ramazzini Institute methanol study, they found a lower
incidence of lymphoma or leukemia than did the Ramazzini scientists.
Essentially, NTP scientists classified a number of the lesions as
inflammatory lesions rather than as cancer lesions. As a result, EPA is
putting a hold on the draft assessments for methanol, methyl tertiary
butyl ether, ethyl tert-butyl ether, and acrylonitrile until the
differences between the two interpretations can be resolved. In
addition, EPA will review their assessments for vinyl chloride and
1,1-dichloroethylene that were completed in 2000 and 2002,
respectively, because these assessments were based in part on Ramazzini
Institute data.
PAH assessments
In February, EPA proposed to use relative potency factors to estimate
the cancer risks for mixtures of polycyclic aromatic hydrocarbon (PAH)
mixtures. EPA’s Science Advisory Board convened a special panel on June
21-23, 2010, to examine this concept. The panel stated that the draft
document failed to demonstrate an adequate scientific basis for
choosing a relative potency factor approach for PAH’s. However, after a
lengthy debate, the panel agreed that the relative potency factor idea
was the most pragmatic short-term approach available but that EPA
should only use it in the interim while working on a more complex
mixture-driven approach. The panel also suggested developing 12 – 15
different mixtures most commonly found and using them in in vivo tumor
studies to check the accuracy of the approach. In addition, the panel
suggested additional cancer bioassay data was needed to validate the
approach. Finally, the panel agreed that benzo(a)pyrene was the most
logical choice as the index chemical because EPA has the most data for
this compound.
Dioxin
In May, EPA released its draft report entitled Reanalysis of Key Issues Related to Dioxin
Toxicity and Responses to NAS Comments. The comment period for
this report originally ended on August 19, 2010. In response to
request, EPA has extended the comment period another 30 days. The
comment period now ends on September 20, 2010. Details can be found in
the June 23, 2010, Federal Register
notice.
Climate change – legislation
On June 10, 2010, Senate Joint Resolution 26 failed on a 47-53 vote.
This resolution was authored by Senator Lisa Murkowski (R-AK) and, if
passed, would have disapproved the EPA rule finding that greenhouse
gases endanger human health and the environment. Getting this
resolution passed by both Houses of Congress and signed by the
President was a long shot, at best. However, opponents of the
endangerment finding were able to keep all Republicans and get six
Democrats to support the Resolution.
Meanwhile, the President held a bipartisan meeting with two dozen
Senators in an effort to move climate and energy legislation. Democrats
came out of the meeting indicating a willing to compromise on the
current Kerry-Lieberman draft but stopped short of endorsing an
energy-only approach. Republicans advocated taking any national energy
tax (cap-and-trade with a price on carbon emissions) off the table
during a recession. Others suggested that the carbon limit should only
apply to electric generations units. However, there does not seem to be
any consensus on what should be included or excluded. With Congress in
session for only a couple of weeks before the August recess and
mid-term elections looming in November, it may be difficult for them to
come to any resolution until after the election. Depending on how many
incumbents lose, anything is possible during the post-election
sessions.
Climate change – regulations
On June 28, 2010, EPA Administrator Lisa Jackson signed a final rule
expanding the greenhouse gas emissions reporting requirements to
include underground coal mines, magnesium production facilities,
industrial waste landfills, and industrial wastewater treatment plants.
These four new source categories will be required to start collecting
emissions data on January 1, 2011 with their first report due on March
31, 2011.
The greenhouse gas tailoring rule was published on June 3, 2010. On
June 4, 2010, the Southeastern Legal Foundation filed a petition for
review with the US Court of Appeals for the District of Columbia
Circuit challenging the legality of this rule. They were joined in the
suit by 14 House Republicans.
Case-by-Case MACT
Sierra Club has been trying to prevent EPA from issuing a Title V
operating permit for the Hugh L. Spurlock power plant in Maysville, KY
for a number of years. Their latest effort is a notification of intent
to sue unless the Agency responds to their petition that the current
permit is illegal because it does not contain a case-by-case
determination for reducing emissions of hazardous air pollutants.
Sierra Club claims that the MACT “hammer” provision of the Clean Air
Act requires EPA to set case-by-case emissions standards for a category
after a court has vacated the sector-wide MACT standards. Since the
court vacated the cap-and-trade mercury rule (Clean Air Mercury Rule),
the Sierra Club contends that EPA and Kentucky must now use the hammer
provisions to set site-specific emission standards for arsenic,
beryllium, cadmium, chromium, dioxins, hydrogen chloride, lead, and
mercury. Not only will the outcome of this litigation impact the rest
of the electric generation category, it could also apply to all other
MACT rules that have been vacated (industrial boilers, brick kilns, and
polyvinyl chloride production).
Clean Harbors – Kimball fine
Early in June, EPA Region 7 and Clean Harbors signed a consent
agreement and final order resolving allegations resulting from
inspections by EPA in 2007 and Nebraska in 2008. These inspections
found several open, unlabeled and leaking containers, storage of
different wastes in proximity that could cause a chemical reaction,
failure to minimize the potential of release of hazardous waste to the
environment, failure to make hazardous waste determination on two
containers, failure to ensure the integrity of a secondary containment
structure, failure to properly manage a container of received waste,
and improper emissions control for certain hazardous waste tanks. Clean
Harbors had already installed additional control devices on the
hazardous waste tanks. Clean Harbors also agreed to submit plans for
minimizing the potential release of hazardous wastes and for addressing
cracks and gaps in the secondary containment structure. In addition,
Clean Harbors agreed to pay a $150,000 civil penalty.
CRWI meeting
The next CRWI meeting will be in Elyria, Ohio on August 3-4, 2010. The
preliminary agenda will include discussions of the state of the art for
PM and mercury CEMs. For more information,
contact CRWI.
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