 Coalition for
Responsible Waste Incineration
CRWI Update
May 31, 2008
Omnibus Authority
Last year, Region 5 issued a permit to PPG Industries Circleville, OH
facility in which they used omnibus authority to require temperature
and pressure gauges on their hazardous materials storage tanks. PPG
challenged these permit conditions in a request for review to EPA’s
Environmental Appeals Board (EAB). PPG cited a letter from then
Assistant Administrator Elliot Laws to Congressman David McIntosh
(R-IN) describing how omnibus authority was to be used. In addition,
Dow Chemical Company is challenging a Region 5 permit requirement for
their Ironton, OH facility to conduct a site-specific risk assessment.
Both companies are negotiating with Region 5 on these provisions. EPA
apparently wants to avoid an EAB ruling that may limit their ability to
use omnibus in future permits.
Definition of Solid Waste
The rule to modify the definition of solid waste was sent to the Office
of Management and Budget (OMB) on April 4, 2008. Since then, there have
been a steady stream of interested parties that have met with OMB staff
on this rule. Representatives from the Defense Department, World
Resources Company, the Synthetic Organic Chemical Manufacturing
Association, Fujifilm Imaging Colorants, the American Chemistry
Council, and the National Mining Association have met with OMB to share
their views on how the rule should be modified. Since this rule is so
controversial, one should expect the OMB review to take the full 90
days, making the likely publication date sometime in late July or early
August.
HW Delisting
On May 19, 2008, EPA proposed to grant three delisting petitions; one
from Bayer Material Sciences in Baytown, TX; a second from Lockheed
Martin Aeronautics Company in Ft. Worth, TX; and a third from
ConnocoPhillips Company Borger Refinery in Borger, TX. EPA evaluated
each petition using their Delisting Risk Assessment Software to
determine whether to grant or deny the petition. Bayer asked EPA to
delist the centrifuge and distillation residues from their toluene
diisocyanate production (K027). ConnocoPhillips asked EPA to delist the
residual solids from their thermal desorber used in processing
oil-bearing secondary materials (F037, F038, K048, K049, K050, and
K051). Lockheed asked EPA to delist the sludge from their wastewater
treatment plant (F019). EPA will accept comments on the petitions until
June 18, 2008. Additional details can be found in the Federal Register notice.
Lead NAAQS
On May 20, 2008, EPA proposed to strengthen the National Ambient Air
Quality Standards (NAAQS) from 1.5 ug/m3 to somewhere in the range of
0.10 to 0.30 ug/m3. EPA promulgated the 1.5 ug/m3 standard in 1978 and
it has not been revised since then. The comment period ends on July 21,
2008.
IRIS
EPA continues to publish draft toxicological reviews of chemical in
support of the Integrated Risk Information System (IRIS). EPA announced
a peer review meeting for propionaldehyde on May 2, 2008, a peer review
meeting and a public comment period for cerium oxide on May 6, 2008, a
peer review meeting and a public comment period for beryllium on May
12, 2008, and a public comment period for carbon tetrachloride on May
21, 2008. The public comment period for each is 60 days. Additional
information can be found in their respective Federal Register notices.
BLD
On May 30, 2008, EPA signed a proposed rule that amends the new source
standards for Portland cement kilns. One of the proposed changes is to
require that all new kilns and clinker coolers with baghouses would be
required to install bag leak detectors (BLD) or PM continuous
monitoring systems. In addition, facilities with electrostatic
precipitators would be required to use predictive emissions modeling.
This rule should be in the Federal
Register in mid June and will have a
60 day comment period. The signed version of the proposed rule can be
found at www.epa.gov/ttn/oarpg.
Click on the new additions to find the
link to the proposed rule.
SOCMI Stay
In November 2007, EPA promulgated revised new source performance
standards for the synthetic organic chemical manufacturing industry
(SOCMI) and for refineries. Several industry groups asked EPA to
reconsider parts of the final amendments. On March 4, 2008, EPA granted
those petitions and temporarily suspended the new requirements of the
November 2007 amendments. On May 15, 2008, EPA announced that the
suspension would remain in place until EPA reaches their final
decisions on the issues under reconsideration (Federal Register notice on June 2,
2008).
Continuous Instrumental Test
Methods
On May 22, 2008, EPA published final amendments updating four
continuous instrumental test methods. These methods are 3A, 6C, 7E, and
20. Additional details can be found in the Federal Register notice.
Boiler MACT Hammer
After the court vacated the industrial boiler and process heater MACT,
there has been considerable controversy over whether section 112(j) of
the Clean Air Act (case-by-case MACT) applies to this category.
Industry contends that this provision only kicks in when EPA fails to
issue a MACT rule. Since EPA issued a rule, the case-by-case provisions
of 112(j) are not applicable even though the court vacated those rules.
EPA and the National Association of Clean Air Agencies (NACAA) have the
opposite opinion. They believe that the court vacature of the standards
leaves the category with no MACT standards and that case-by-case MACT
is now required for this category. To help this process, NACAA is in
the process of developing a model rule to be used by the states to set
case-by-case MACT standards for these sources. This model rule was
discussed at NACAA’s annual meetings in early May. The guidance will be
published in early June on their web site (www.4cleanair.org).
Mercury Ruling
On February 8, 2008, the U.S. Appeals Court for the District of
Columbia Circuit struck down EPA’s Clean Air Mercury Rule (CAMR) saying
that EPA illegally delisted electric utility boilers from the list of
source categories under Section 112 of the Clean Air Act. On March 24,
2008, EPA and the Utility Air Regulatory Group asked the court to
rehear the case en blanc
(rehearing before all of the judges in the circuit). The court then
asked the petitioners why the full court should not review the case.
The petitioners responded that an en
blanc review is only warranted if it is necessary to maintain
the uniformity of the court’s decision or if it involves an
exceptionally important question. On May 20, 2008, the court denied EPA
request for a rehearing. EPA now has two options: appeal the case to
the Supreme Court or to redo the rule. It does not appear that this
case is important enough to be appealed to the Supreme Court so it is
likely that EPA will redo the rule. However, predicting what EPA will
do is not an exact science.
Region 5
Dow Chemical Company and EPA have been negotiating over how to clean up
the dioxin contamination near their Midland, MI facility for a number
of years. Last summer, Mary Gade, the Regional Administrator for Region
5 invoked emergency powers to force Dow to clean up three highly
contaminated sites. In November, she suggested more dredging after
tests found dioxin levels of 1.6 million parts per trillion in a
Saginaw, MI park. Dow and EPA entered into negotiations on a broad
cleanup plan for the entire area. The day before Dow was to respond to
EPA’s proposed cleanup plan, EPA canceled the negotiations. EPA did not
specify why the negotiations were terminated. Dow told the media that
Ms. Gade’s office had asked Dow to do things that were not consistent
with the national guidelines for dioxin cleanup. Dow took this dispute
to EPA headquarters. On May 1, 2008, Ms. Gade was placed on
administrative leave and told to resign before the leave was over (June
1) or be fired. She resigned and took her story to the Chicago Tribune. She blamed the
termination on her dispute with Dow over cleanup plans. Dow denied that
they had requested her removal. EPA does not discuss personnel issues
so they have not made any statements about the reasons for the actions.
Deputy Regional Administrator Bharat Mathur is currently acting as the
head of Region 5. Since Regional Administrators require confirmation by
the Senate, it is unlikely that President Bush will nominate anyone to
fill this slot. It is likely that Mr. Mathur will continue to fill the
slot as acting Region 5 Administrator until the next President can
decide who they want to run the Region.
Climate Change
Senator Barbara Boxer (D-CA), Chairperson of the Senate Environment and
Public Works Committee, has re-written S. 2191 and submitted a new bill
(S.3036) to replace it. S. 2191 would initiate the cap-and-trade scheme
in 2012 but did not require imports from countries that do not control
carbon emissions to provide offsets for their products until 2020. This
left U.S. industry at a disadvantage when trying to compete with
industry in countries that are not required to control greenhouse gas
emissions. S. 3036 moves that date from 2020 to 2015, shortening the
time when the competition would not be fair. The new version also
contains a “safety valve” where industry could borrow from future
allowances under certain economic conditions. In addition, the new
version contains tax relief to assist consumers with higher energy
costs. S. 3036 has been placed on the Senate calendar for June 2, 2008.
Even with the changes, most observers believe the Democrats do not have
sufficient votes to shut off debate.
On the House of Representatives side, Congressmen John Dingell (D-MI)
and Rick Boucher (D-VA) continue their methodical approach to writing
climate change legislation with the release of the fourth white paper
on getting the most greenhouse gas reductions for the money. This white
paper starts with the premise that a cap-and-trade mechanism for
controlling greenhouse gas emissions is the most economical and looks
at ways to make that method more cost effective. The paper states that
allowing participants to bank allowances for future use and to use
offsets (biological or geological sequestration) can reduce costs. In
addition, the committee should consider whether participants are
sufficiently credit worthy to borrow against future allowances, whether
compliances periods of longer than a year should be considered, whether
legislation should allow for the cap to be raised if the price of
allowances becomes too high, and should the committee set a minimum
floor price for allowances. A copy of this white paper can be found on
the House Energy and Commerce Committee web site
(energycommerce.house.gov).
It is unlikely that the approach being taken by Congressman Dingell
will result in a bill introduced in this Congress but it certainly is
laying the ground work for the next Congress. Congressman Dingell is a
careful and thorough legislator. He understands how to get legislation
through both houses of Congress and to get the President to sign it.
When he introduces climate change legislation, one should expect that
it will have a good chance of being enacted.
At a campaign stop in Oregon, Presidential candidate John McCain
announced his plan to control greenhouse gas emissions. The basic idea
is a cap-and-trade program that would require a return to 2005 levels
by 2012 and would reduce greenhouse gas emissions to 66% below 2005
levels by 2050. It will include a section to encourage development of
advanced technologies including nuclear energy, carbon capture and
sequestration, and battery technology. His program would also include
methods to reduce greenhouse gas emissions in developing countries.
Both of the Democrat candidates have criticized the plan as being too
weak. What is most important is that all three of the potential
presidential candidates have supported some type of greenhouse gas
emission reductions. Thus, the probabilities of passing some type of
legislation regulating the emissions of greenhouse gas in the next
Congress is high.
On April 2, 2008, the states and environmental groups requested that
the U.S. Appeals Court for the District of Columbia Circuit force EPA
to issue their endangerment finding for carbon dioxide within 60 days.
On May 12, 2008, the Department of Justice responded, arguing that the
petitioners had not met the legal tests for demonstrating unreasonable
delay by EPA. However, all parties seem to be open to negotiating a
timetable for EPA to act.
EPA is also getting pressure from one of their advisory committees
(National Advisory Council for Environmental Policy and Technology -
NACEPT) to begin regulating greenhouse gases. On May 14, 2008, NACEPT
approved a draft report that outlines ways EPA can speed up the
commercialization of clean technologies. The committee said that
venture capitalists will not invest in new technologies to reduce
greenhouse gas emissions until they have certainty that the emissions
will be regulated and they know the price for carbon emissions.
The Natural Resources Defense Council commissioned a study from the
Tufts University to estimate the costs of inaction on climate change.
The report concluded that doing nothing would cost $3.8 trillion per
year or 3.6% of the GDP by 2100. This report was based on a warming of
13 degrees F in the United States and 18 degrees F in Alaska. It
includes detailed costs based on hurricane damages, real estate loses,
increased energy costs, and water costs. A copy of the report can be
found at www.nrdc.org/globalwarming/cost/contents.asp.
Senator Dick Durbin (D-IL) and several Illinois House of Representative
members sent a letter to Region 5 on May 30, 2008, urging them to
reject a construction permit approved by Indiana to allow BP to expand
the capacity of their Whiting, IN refinery. The objection appears to be
based on concerns that the expansion is to process tar sand fuels that
have higher carbon dioxide emissions as compared to conventional
crudes.
Finally, ExxonMobil has announced that they will develop an improved
natural gas treatment technology to make carbon capture more
economical. They plan to build a demonstration plant near LaBarge, WY
where they will use their Controlled Freeze Zone technology to treat
sour natural gas. This process uses cryogenic separation techniques
that first freezes out and then melts carbon dioxide and hydrogen
sulfide, producing a high pressure liquid stream that can be injected
into underground storage or used for enhanced oil production.
Construction will begin this summer with a late 2009 startup.
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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