 Coalition for
Responsible Waste Incineration
CRWI Update
March 31, 2008
HWC MACT
On March 27, 2008, the technical amendment was signed and posted on
EPA’s hazardous waste combustor web site (www.epa.gov/hwcmact). Most of
the final rule was either exactly as proposed or very close to what was
proposed. EPA corrected a number of typographical and reference errors
as well as adding a test waivers section for those facilities that are
currently subject to thermal based emission standards. The only change
EPA did not make was the English units for the PM standard for
incinerators to SI units. Commenters showed EPA that the conversion,
when rounded to two significant digits (EPA’s current requirement),
would increase the stringency of the standard. As a result of these
comments, EPA decided not to change the units of this standard.
There was one surprise in the technical amendments. EPA decided to
change the startup, shutdown, and malfunction provisions of
63.1206(c)(2). The exact language change is as follows (strikeout
was
the original language and underline
is the new language).
63.1206(c)(2)(v)(A)(2) Although the automatic waste
feed cutoff
requirements continue to apply during a malfunction, an exceedance of
an emission standard monitored by a CEMS or COMS or operating limit
specified under §63.1209 is not a violation of this subpart EEE
if
you operate in accordance with § 63.6(e)(1) if you take the corrective
measures prescribed in the startup, shutdown, and malfunction plan.
A similar change made to 1206(c)(2)(v)(B)(4). In the preamble, EPA
refers to this as a ministerial error made when EPA amended the
startup, shutdown, and malfunction requirements of the General
Provisions (April 20, 2006). In the 2006 action, EPA made conforming
changes to a large number of individual MACT rules. In the 2008
amendment, EPA revised these two provisions so they read as they did
before the 2006 action. The ramifications of this change are not clear
at this time. This amendment should be published in the Federal Register early in April.
Comparable Fuels
In November of 2007, 25 Congressmen sent a letter to EPA urging them to
re-open the comment period for the comparable fuels rulemaking and to
conduct an assessment of the compliance history of the facilities that
would be affected by the rulemaking. In January of 2008, EPA Assistant
Administrator Susan Bodine sent a letter back to each of the
Congressmen saying that such an assessment was “unnecessary and not
relevant” to the rulemaking. On March 6, 2008, EarthJustice sent a
letter to each of these Congressmen expressing their disappointment in
EPA’s reply. This letter suggested that EPA’s response was “evasive,
irrelevant, and, in some cases, actually supportive” of their concerns.
Thus, the environmental groups continue to pressure EPA to discontinue
any rulemakings that remove material from RCRA regulation.
Case-by-Case MACT for Mercury
When the U.S. Court of Appeals for the District of Columbia vacated the
Clean Air Mercury Rule (CAMR), it declared EPA’s efforts to delist the
coal-fired power plant category as invalid. As a result, coal-fired
power plants are once again a source category under section 112 of the
Clean Air Act. Since EPA has not promulgated MACT standards for this
category, the case-by-case MACT requirements of section 112(j) of the
Clean Air Act now apply. On March 4, 2008, the Virginia Department of
Air Quality began seeking comments on a permit for a new power plant in
Wise County that includes a case-by-case determination for mercury. The
proposed air pollution controls would be limestone injection into the
boiler, post-combustion flue gas de-sulfurization and carbon injection.
Opponents of the plant argue that the case-by-case analysis was put
together in three weeks so it could not be comprehensive or detailed.
No matter what the starting point, if the case-by-case determination
continues for this permit, it may set the standard for all future
case-by-case determinations for power plants.
Meanwhile, on March 24, 2008, EPA filed a petition with the Appeals
Court seeking an en banc review of the February 8, 2008, ruling that
overturned EPA’s delisting of power plants as a section 112 source
category and vacated the CAMR rule. In doing this, EPA is asking the
entire panel of judges to overturn the three-judge panel that made the
ruling. EPA stated that they believe that the ruling has “significant
and important implications” to the regulation of power plants. Rumor
has it that the Department of Justice attorneys and mid-level staff in
EPA’s Office of General Counsel opposed this petition but were
overruled by high-level staff in EPA. These types of petition are
seldom granted and it is unlikely that this one will result in
reversing the three-judge panel ruling.
On a related note, opponents of a new North Carolina power plant filed
a petition on March 5, 2008, with the Division of Air Quality asking
them re-open a permit issued in late January because the mercury
controls were not stringent enough and because the permit does not
require control of 66 other hazardous air pollutants. The owner of the
facility has declined to re-open the permit and says that construction
is moving forward.
NRDA
The Comprehensive Environmental Response, Compensation, and Liability
Act requires regulations on how to conduct a Natural Resources Damage
Assessment (NRDA). The Act also requires that these regulations be
updated every two years. An NRDA is an evaluation of the need for
restoring public natural resources following the release of hazardous
substances or oil into the environment. On February 29, 2008, the
Department of the Interior proposed to make several changes to the
current regulations. These changes would not change the basic framework
of the process but would encourage faster, more efficient and more
cost-effective resolution of claims. The current regulations would also
be modified to further emphasize restoration over economic damages and
to respond to two court decisions (State
of Ohio v. U.S. Department of the Interior, 880 F.2d 432 (D.C.
Cir. 1989) and Kennecott Utah Copper
Corp. v. U.S. Department of the Interior, 88 F.3d 1191(D.C. Cir.
1996)). Comments are due on May 29, 2008. Additional details can be
found in the Federal Register notice.
Dioxin
EPA has been struggling with developing a risk assessment for dioxin
since 1991. They have created a number of draft reports, all of which
did not “pass” the peer review process. The most recent set back was at
the hands of a National Academy of Sciences panel that told EPA they
had not adequately characterized the uncertainties associated with
determining the cancer risks from dioxin. The report also recommended
that EPA use both a linear and a non-linear model to estimate the risks
at low levels of exposure. Industry has long argued that a linear model
over estimates the risk at low levels of exposure and the environmental
groups have argued that there is no threshold below which there is no
harm. EPA has developed their next draft of ideas on how to address
this uncertainty and has asked their Science Advisory Board to form a
panel to conduct the next review. As more information becomes
available, it will be passed on.
Climate Change
The battle lines in the Senate over S. 2191 are starting to form. On
March 12th and the 13th, industry groups (U.S. Chamber of Commerce,
National Association of Manufacturers, and the Alliance for Energy and
Economic Growth) started a multi-state effort to point out the “severe
economic costs” of the legislation. The idea of this is to convince
lawmakers from key states to weaken the emission control requirements
of the legislation. To counter this, Senator Barbara Boxer (D-CA)
stated in a press conference, also on March 12th, that she would pull
the legislation rather than allow a weaken bill to pass the Senate. She
also suggested that the bill should be strengthened in several areas.
Some of these are: stronger provisions for auctioning allowances;
reduce the 2050 allowances from 70% to 80%; provisions to lessen the
burdens on consumers; and more funding to help cities with their
transportation needs. Senator Boxer indicated that the measure would be
brought to the Senate Floor for debate some time after the May Recess
(May 24 until June 1) but did not give an exact timetable. Senator
Boxer will be the Floor manager for the Democrats during the debate.
Meanwhile, Congressman Rick Boucher (D-VA), the chairman of the Energy
and Air Quality Subcommittee of the Energy and Commerce Committee,
stated that work on climate change legislation in the House of
Representatives would follow the normal committee process and that it
would not be speeded up. Congressman Boucher described the chances of
climate change legislation this year as “better than 50-50” and added
that the chances are “80% or better” under a new administration and
Congress.
Approximately a year ago, the Supreme Court ruled that the Clean Air
Act allows EPA to regulate carbon dioxide as an air pollutant. How EPA
responds to this finding will have very large implications on the
regulations of emissions from both mobile and stationary sources. All
sides have been pushing EPA to respond. Environmental groups have
submitted at least seven petitions to regulate carbon dioxide emissions
from both mobile and stationary sources. Industry has tried to find
ways to slow the process. In fact, the stakes are quite high and any
decisions that the Agency makes will have significant economic
ramifications. On March 27, 2008, EPA Administrator Stephen Johnson
announced his decision to solicit public input through an Advanced
Notice of Proposed Rulemaking (ANPRM) on any decisions to regulate
greenhouse gas emissions. In his letter to Congressman Edward Markey
(D-MA) announcing the decision, Administrator Johnson states that such
a process makes sense because any regulations of greenhouse gases for
mobile sources could automatically result in regulations applying
stationary sources and may extend to small sources never before
regulated under the Clean Air Act. Administrator Johnson stated that
the ANPRM would seek comments on:
- How to use the best available science to make an
endangerment
finding;
- What are the implications of an endangerment finding on the
regulation of mobile and stationary sources;
- How EPA should respond to petitions to regulate mobile
sources
(on-road, non-road, marine, and aviation) and stationary sources
(petroleum refineries, Portland cement, Power plants, and industrial
boilers);
- How should this impact the New Source Review program;
- What should be the emission thresholds used to determine if
a source
is regulated; and
- How to define best available control technologies.
This ANPRM is expected in the Spring. EPA will receive a large number
of comments on this notice. This will create a significant delay in any
endangerment finding required by the Supreme Court ruling from last
year. It will also almost guarantee that any endangerment finding will
not be made under the current Administration. While environmental
groups are concerned about the delays and industry is pleased to have a
chance to impact the decision, one should always remember that this
coin has two sides. By putting off the decisions until the next
administration, industry may end up with much more stringent
regulations. All three Presidential candidates have expressed their
support for efforts to reduce greenhouse gas emissions. In addition,
the comment period can be used by both sides to build the record on
which EPA will make all subsequent decisions. While this may seem like
a short-term gain for industry, it may end up being a long-term loss.
The converse may well be true for the environmental groups.
The Office of Water continues to move ahead with a strategy on how to
respond to climate change. In a memo sent to Water Division Directors
of the 10 EPA Regions and Office Directors of the Office of Water, EPA
Assistant Administrator Ben Grumbles announced National Water Program
Climate Change Workgroup. This was followed by a public announcement on
March 28, 2008, asking for comments on their draft National Water
Program Strategy: Response to Climate Change. EPA says this is an
initial effort to identify potential impacts of climate change on
surface and drinking water resources and to define how EPA should
respond to these changes. A copy of the document can be found at
www.epa.gov/water/climatechange.
Comments will be accepted until May
27, 2008.
The Office of Underground Injection Control continues to
work on regulations to govern sequestration of carbon dioxide by
injecting it into underground aquifers. Some of the water utility
companies have expressed concern about how this technique may impact
underground sources of drinking water. Other have pointed out the
problems generated by EPA mandating the use of MTBE (methyl tertiary
butyl ether) as a fuel additive and urged caution before creating large
underground “reservoirs” of carbon dioxide. There are many
technological hurdles to overcome in this program.
While environmental groups have used the court to stop permits from
being issues on new coal-fired power plants, industry has recently
taken the unusual step of filing a suit to force EPA to issue a permit.
Sithe Global Power and the Navajo Nation’s Dini Power Authority are the
backers of a planned 1500-megawatt power plant in northwestern New
Mexico. Environmental groups filed comments challenging the permit
based on the global warming impacts of the plant’s projected carbon
dioxide emissions. These comments were filed approximately one year
after the comment period for the permit closed. On March 18, 2008, the
backers filed suit in federal court in Texas (where they are
headquartered) arguing that EPA has violated their nondiscretionary
duty to issue a permit decision within a year of receiving a completed
application. EPA acknowledged that they had received a completed
application in 2004. This ruling will be closely watched to see if the
courts tell EPA that they must issue this permit.
Finally, former Vice President Al Gore announced on March 31, 2008, a
three-year, $300 million advertising campaign to mobilize Americans to
push for aggressive reduction in greenhouse gas emissions. The ad
campaign will be run by the Alliance for Climate Protection. This group
was founded by Mr. Gore partially from the proceeds of the film “An
Inconvenient Truth” and from his share of the Nobel Peace Prize. The
goal of the campaign is to educate Americans that the climate crisis is
both urgent and solvable. It will include newspaper and television ads.
The idea behind this campaign is that while it is important to change
light bulbs, it is more important to change laws. It is being called
the “We” campaign because the central theme is that “we can solve the
problem if we take action now...” Mr. Gore has indicated that donations
or pledges have already been received to cover more than half of the
campaign. Additional details can be found at www.wecansolveit.org.
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.
|