 Coalition for
Responsible Waste Incineration
CRWI Update
March 31, 2010
Industrial Boiler Rules
EPA sent the proposed industrial boiler rule, the proposed area source
boiler rule, and the proposed changes to the definition of
non-hazardous solid waste to the Office of Management and Budget (OMB)
on March 18, 2010. The proposed commercial and industrial solid waste
incinerator rule was sent to OMB on March 22, 2010. EPA continues to
correct the data bases for the rules and released version 4 of the
boiler data and version 2 of the CISWI data. The updated versions can
be found at
www2.ergweb.com/projects/combustion/combustiontesting.html.
EPA has not shared any additional information on how they will
subcategorize or what method will be used to develop the standards.
Most believe that EPA will use straight emissions with a 99%
variability factor to set the floor standards. It is also not clear how
EPA will handle startup, shutdowns, or malfunctions but most expect EPA
to follow what was done in the recently promulgated reciprocal internal
combustion engine and hospital/medical/infectious waste incineration
rules. Since there are few parallels for startup and shutdown from
these rules, it is difficult to anticipate what EPA will do for these
two modes of operation. However, for malfunctions, EPA has consistently
stated that malfunctions are not a distinct operating mode and that
facilities must meet their standards during malfunctions. It is likely
that EPA will handle malfunctions for these rules the same way.
A number of industry groups have already met with OMB to express their
concerns about these proposed rules. Others have meetings scheduled for
early April. EPA still plans to sign these four proposed rules on April
15, 2010.
Case-by-Case MACT
On March 30, 2010, EPA published a proposed rule to clarify their
position on the use of case-by-case MACT. The rule specifically impacts
the PVC production industry, the brick industry, the clay ceramics
manufacturing industry, the commercial and industrial solid waste
incinerator facilities, and the industrial boiler facilities. All of
these rules have been promulgated by EPA and vacated by the courts. EPA
makes it clear that they believe the court vacatur of these rules makes
them subject to the case-by-case requirements in section 112(j) of the
Clean Air Act. The proposed rule sets up a streamlined case-by-case
permit application process and resets the deadline for submitting the
permit application at 90 days after the rule is finalized. The proposed
rule will also eliminate the ability for facilities to request an
applicability determination over whether case-by-case applies. EPA
estimates that this rule, if finalized, would impact 19 PVC facilities,
122 brick facilities, 8 clay facilities, and 15,500 boilers. The
comment period for this proposed rule ends on April 29, 2010.
SSM
On March 8, 2010, the Supreme Court declined to review the Appeals
Court decision that vacated the 1994 rule exempting emissions from
startup, shutdown, and malfunction (SSM) events from applicable air
toxics limitations. This ends any legal wrangling over the appeals
court decision. EPA, industry, and the environmental groups continue to
spar over what this means and how to cope with the decision. EPA stated
that this vacatur would immediately impact 35 National Emission
Standards for Hazardous Air Pollutant (NESHAP) rules because these rule
contained only a reference to the vacated rule. EPA has also stated
that NESHAP rules with explicit language exempting SSM events from
their emission standards will not be immediately impacted but that the
Agency plans to modify each of these rules to make them consistent with
the court ruling.
EPA has already started this process. EPA appears to have developed a
policy that startup and shutdown are distinct operational modes but
that malfunctions are not. So far, they have used this policy to set
different types of standards for startups and shutdowns while requiring
facilities to meet their standards during malfunctions. For example, in
the chemical source manufacturing area source rule, EPA allows a less
stringent standard (85% control) during startup and shutdown but
required facilities to meet the normal standard (95%) at all other
times including malfunctions. The reciprocal internal combustion engine
rule does not set separate standards during startup but restricts the
time in startup to 30 minutes. In this rule, EPA decided that sources
would not exceed the normal operating standards during shutdown or
malfunctions and would not need alternative standards. In the
hospital/medical/infectious waste incineration (HMIWI) rule, EPA
decided that since waste was not introduced into the unit until after
startup and the facility was required to continue operation for 2 hours
after the last batch was fed, facilities should be able to meet the
standards during these two events. They also required HMIWI facilities
to meet the standards during malfunctions. In the proposed Portland
Cement MACT rule, EPA proposed to have cement kilns meet the proposed
standards at all times, including SSM events. It is expected that EPA
will take a similar position when the commercial and industrial solid
waste incinerators and the industrial boiler rules are proposed in
mid-April.
Texas Air Permitting Authority
Disapproval
EPA approved Texas’ clean air permitting program in 1992. Since then,
the Texas Commission on Environmental Quality has submitted over 30
modifications to that original plan. One of these was a Qualified
Facilities Program where facilities that had Texas issued air permits
would be exempted from certain federal air requirements (e.g., allowing
facilities to avoid public reviews of plant modifications). In
September 2009, EPA Region 6 proposed to disapprove this program and
invited public comments on this proposed action. On March 31, 2010, EPA
Regional Administrator Al Armendariz announced that EPA has decided to
disapprove this modification. Region 6 is currently considering two
additional changes (the flexible permits program and the new source
review reform program). EPA is expected to decide on these two programs
by the end of 2010.
OSWER Head Advocates
Precautionary Principle
Speaking at a symposium on strengthening environmental justice and
decision making, EPA Office of Solid Waste and Emergency Response
(OSWR) Assistant Administrator Mathy Stanislaus stated that EPA needs
to find a way to use the precautionary principle in such a manner that
will prevent disparate impact. He went on to state that the real
problem is how to “operationalize the precautionary principle.” After
the symposium, Mr. Stanislaus said that the Agency has not yet decided
how to incorporate the precautionary principle into official policy but
was asking for ideas on how this could be done.
The precautionary
principle was initiated at the Rio Conference in 1992 as Principle #15.
"In order to protect the environment, the
precautionary approach shall
be widely applied by States according to their capabilities. Where
there are threats of serious or irreversible damage, lack of full
scientific certainty shall not be used as a reason for postponing
cost-effective measures to prevent environmental degradation."
This definition is important for two reasons. First, it explains the
idea that scientific uncertainty should not preclude preventative
measures to protect the environment. Second, the use of
"cost-effective" measures indicates that costs should be considered.
This central idea has been modified a number of times but the basic
concept is that it allows policy makers to make discretionary decisions
in situations where there is evidence of potential harm but not
conclusive scientific proof. The second part of the idea (cost
effectiveness) is often forgotten. How these statements will influence
environmental justice policy or general policy from OSWER is not yet
known.
Environmental Justice
In 2003, the Rosemere Neighborhood Association filed a complaint with
EPA alleging that the City of Vancouver, WA violated Title VI of the
Civil Rights Act by failing to properly use EPA funds to make
improvements in its work areas and then retaliating against the
association for filing a dispute. When EPA failed to address the
complaint in a timely manner, the Association sued. Last September, a
federal appellate court held that the Agency had unlawfully used a
pattern of delays in addressing this complaint and several other
pending Title VI complaints. EPA’s Office of Civil Rights (OCR) has
been the center of a number of controversies mostly related to their
lack of response to petitions. After the court ruling, EPA
Administrator Lisa Jackson vowed to reform OCR and how it handles
complaints.
On March 19, 2010, EPA and the Association signed an agreement that
requires the Agency to meet regulatory deadlines for any future
complaints filed under Title VI. In the agreement, EPA acknowledged
that their failure to responds to this and many other Title VI
complaints violated the Administrative Procedures Act. The agreement
also requires EPA to provide quarterly updates to Rosemere on the
status of all complaints currently under review. The updates will be
publicized in an effort to put pressure on OCR to take action.
HW Technical Corrections
On March 18, 2010, EPA published a direct final rule making a number of
technical changes to correct or clarify several sections of RCRA
regulations. These changes were designed to correct existing errors and
typos that have accumulated for a number of years. The changes are also
designed to eliminate outdated citations. Direct final rules are
designed to be used where there are no significant changes in the
regulations. In this case, EPA appears to have made at least one
substantive change in how 90-day tanks will be labeled. The 1986 rule
required containers to be marked with a date that is use to show less
than 90 day accumulation. The original 1986 rule did not extend the
labeling requirement to tanks. In the 2010 direct final rule, EPA
decided that leaving this requirement out of 40 CFR 262.34(a)(2) was
inadvertent. By adding it in now, EPA will change the way most 90-day
tanks are labeled. Currently facilities do not put the accumulation
date on each of the tanks since these tanks stay in service for many
years. This would result in a large number of label changes over the
years and a loss of records on when the tank was emptied. As with all
direct final rules, this rule is accompanied by a proposed rule. The
direct final rule will go into effect on June 16, 2010, unless adverse
comment is received by May 3, 2010. It is expected that at least one
party will object to this “correction.” If filed, EPA will likely
publish a Federal Register
notice withdrawing part of the direct final rule. They may re-publish
the “correction” later but it must include a response to any comments
submitted.
Delisting
EPA granted a delisting petition to Valero Refining Company for 2,700
cubic yards of storm water basin sediment (FO37). EPA concluded that
this material is not a hazardous waste. Details can be found in the
March 10, 2010, Federal Register
notice. EPA also proposed to delist
the sludge filter cake from a wastewater treatment plant owned by
Tokusen. Details can be found in the March 31, 2010, notice. The
comment period on this proposed rule ends on April 30, 2010.
AEGL Public Meeting
EPA will hold a meeting of the National Advisory Committee for Acute
Exposure Guideline Levels for Hazardous Substances on April 13-14,
2010, in San Francisco, CA. The committee will address the development
of Acute Exposure Guideline Levels (AEGLs) for a number of chemicals.
The list of chemicals being considered and additional details can be
found in the March 24, 2010, Federal
Register notice.
IRIS
On March 31, 2010, EPA announced an external review draft of the human
health assessment of dichloromethane in support of summary information
for the Integrated Risk Information System (IRIS). Comments on this
draft will be accepted until June 1, 2010. In addition, EPA will hold a
listening session on the draft assessment on May 11, 2010, in
Arlington, VA. Additional information can be founding the Federal Register notice.
DOJ Environmental Division
Ignacia Moreno was confirmed as the Assistant Attorney General for the
Environment and Natural Resources Division of the Department of Justice
(DOJ) in November 2009. Although she started work shortly after her
confirmation, her official installation ceremony was on March 5, 2010.
During this ceremony, Ms. Moreno stated that environmental justice
would be one of her top priorities. Other priorities include addressing
water pollution by reducing raw sewage releases, animal waste releases,
and polluted storm runoff; protecting drinking water supplies;
enforcing new source review programs for several industry sectors;
cleaning up the Chesapeake Bay; and making sure that the polluter pays
for Superfund site cleanup. She also announced her senior leadership
team for the Division. Robert Dreher will be her principal deputy
assistant in charge of the Natural Resources and Wildlife and Marine
Resources section. Mr. Dreher was previously the general counsel for
the Defenders of Wildlife. Natalia Soegente will be her chief of staff.
Ms. Soegente previously worked for the Alliance for Justice. Patrice
Simms will be a deputy assistant in charge of the Land Acquisition and
Environmental Defense section. Ms. Simms previously worked for the
Natural Resources Defense Council. Ethan Shenkman will head the
Appellate and Indian Resources sections. Mr. Shenkman previously worked
for the law firm of Wilmer, Cutlet, Pickering, Hale, and Dorr where he
specialized in appellate law. John Cruden will be the deputy assistant
for Environmental Enforcement and Environmental Crimes section. Mr.
Cruden has worked for DOJ in environmental enforcement since 1991.
Climate Change – Legislation
On March 3, 2010, Senator John Rockefeller IV (D-WV) introduced S.
3072, a bill that would delay Clean Air Act climate change rules for at
least two years. He has no co-sponsors for this bill. Although most
observers do not believe this bill will pass the Senate, environmental
groups are vigorously attacking this legislation. Meanwhile, Senator
Lisa Murkowski (R-AK) is delaying any pushes for her resolution to
overturn EPA’s endangerment finding until it is clear how the Senate
will react to S. 3072.
The Obama Administration and Senate Democrats are sending mixed
messages about fate of climate change legislation in this Congress. The
news media has reported that the President will not push for action on
this issue because of the potential to split Democrats in a tough
election year. However, on March 31, 2010, the President announced a
reversal of the ban on offshore drilling for oil and natural gas for
certain sections of the southern Atlantic coastline, the eastern Gulf
of Mexico, and parts of Alaska. This could be interpreted as a way to
ease passage of a compromise climate change bill. The reactions to this
are pretty much as would be expected. Republicans criticized the action
as not enough, leaving out the more promising offshore sections in
California, the Gulf of Mexico, and Alaska. The environmental groups
were equally opposed to this but their reason was that new sources of
renewal power needs to be developed, not opening up pristine coastal
areas to oil and gas exploration. To further confuse things, a group of
22 Democrat Senators sent a letter to Senate Majority Leader Harry Reid
(D-NV) asking that comprehensive clean energy and climate legislation
be considered by the Senate this session.
In a March 17, 2010, meeting with industry representatives, Senators
John Kerry (D-MA), Lindsey Graham (R-SC), and Joe Lieberman (I-CT)
released an eight page outline of their compromise climate change bill.
The outline contains some of the core goals of the House passed
legislation but tried to add enough incentives to get the 60 votes
needed to pass the bill. The outline kept the 17% reduction in 2005
levels of greenhouse as emissions by 2020 but adds incentives for
increased oil and gas production and nuclear power. The three Senators
hope to have legislative language by the end of April with debate in
the Senate in May and June.
Climate Change – Regulation
In addition to the 31 industry sectors already covered by the
greenhouse gas reporting rule, EPA signed a proposed rule on March 22,
2010, to collect methane emissions data from oil and natural gas
operations. A separate proposed rule to add sources of fluorinated
gases to the registry was also signed the same day. A third proposal
was also signed to collect data from carbon dioxide underground
injection facilities. This will allow EPA to track the amount of carbon
dioxide injected and may help in developing a monitoring strategy for
detecting potential leaks to the atmosphere. Under these proposals, all
three would start collecting data on January 1, 2011. All three
proposed rules should be in the Federal
Register in April.
During their meetings in California, the Environmental Council of the
States (a national association of state and territorial agency leaders)
approved a resolution calling for a national approach to reducing
greenhouse gas emissions. Five states (Oklahoma, Texas, North Dakota,
Nevada, and Indiana) opposed the resolution.
Climate Change – Courts
Last month, we reported that 16 states have filed to intervene on the
behalf of EPA on the pending greenhouse gas endangerment findings. This
month, twelve states (Florida, Hawaii, Indiana, Kentucky, Louisiana,
Mississippi, North Dakota, Oklahoma, South Carolina, South Dakota, and
Utah) filed as interveners supporting the industry petitioners. In
addition, the Southern Environmental Law Center filed a petition to
intervene on behalf of EPA.
Sierra Club Opposition to
Coal-fired Power Plants
Michael Brune became the new Executive Director for the Sierra Club on
March 15, 2010. In his opening remarks, he stated that Sierra Club was
responsible for stopping the construction of more than 115 coal-fired
power plants. He also stated that in the next 20 years, Sierra Club
would work to retire more than 500 “dirty coal plants” and replace them
with ones that efficiently use “clean, renewable energy sources.”
Another goal for the organization is to have all buildings be energy
self-sufficient and carbon neutral by 2030 and to push for increasing
the renewable energy to 25% of the US energy supply in the next 10 to
15 years.
Plasma Unit Planned
Waste Management and InEnTec have announced plans to build a
waste-to-fuel unit at Waste Management’s landfill in Arlington, OR. The
unit will use the PEM system to convert the waste to a syngas. The PEM
system is a two stage process. In the initial stage, about 80% of the
organic materials are converted into syngas. In the second stage a
plasma arc converts the rest of the organics into syngas and the
inorganic portion into molten glass. The system has the capability to
pull off and recycle metals and glass during the processing. Waste
Management expects construction to begin in the summer and to be
completed by the end of 2010.
IT3
This years IT3 conference will be held in San Francisco, CA. on May
18-20, 2010. While there are no hazardous waste regulations pending,
there are several other MACT standards in play that will have an impact
on how the Office of Solid Waste will develop the next hazardous waste
combustor MACT rule. The hospital/medical/infectious incinerator rule
is currently being litigated. The Portland cement rule has been
proposed and should be final in June. The commercial and solid waste
incinerator rule, the industrial boiler rule, and the definition of
non-hazardous waste should be proposed in mid-April. A session has been
developed to discuss the methods EPA is currently using to develop
these standards, the resulting standards, and how EPA is handling
startup, shutdown, and malfunction plans. These topics should generate
some spirited discussion. Additional information can be found at www.awma.org/IT32010.
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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