 Coalition for
Responsible Waste Incineration
CRWI Update
May 31, 2010
Boiler/CISWI rules
The four proposed rules (industrial boiler and process heater,
commercial and solid waste incineration, area sources, and definition
of non-hazardous solid waste) are all scheduled for publication in the Federal Register for June 4, 2010.
It is not clear why these rules have taken over a month (signed on
April 29, 2010) to get published. It may simply be the logistics of
publishing four large proposed rules on the same day. The comment
periods for all four are currently 45 days. Industry groups are gearing
up to ask for additional time to develop comments. It is also rumored
that the environmental groups are also considering asking for
additional time based on their opposition to the proposed work practice
standards for gas fired boilers instead of numerical standards. EPA may
grant additional time but is likely to couple any extension with an
extension of the court ordered deadline for a final rule (now at
December 16, 2010). However the timing plays out, these proposed rules
will have a significant impact on the costs of industry to comply. As
such, the number of industries and industry groups cooperating to
oppose these proposed standards is unusual.
HMIWI amendment
On May 14, 2010, EPA proposed to change the existing source NOx
standards and the new source SO2 standards for the large subcategory of
the Hospital/Medical/Infectious Waste Incineration (HMIWI) rule. The
reason for these two changes is that EPA inadvertently used the
incorrect statistics. For both, EPA originally used a normal
distribution. After further examination, they determined that a
log-normal distribution should have been used. EPA recalculated the
standards and is proposing to revise the existing source NOx standard
for Large units from 130 ppmv to 140 ppmv and the SO2 standard for new
Large units from 1.6 ppmv to 8.1 ppmv. EPA is also proposing to correct
three cross-references to 60.56c(d), (h), and (j). The comment period
for this proposed amendment closes on June 28, 2010.
Dioxin
On May 21, 2010, EPA announced the availability of its draft report
entitled Reanalysis of Key Issues
Related to Dioxin Toxicity and Responses to NAS Comments. Even
though the draft report is almost 2000 pages long, it does not appear
to address all the 2003 comments made by the National Academy of
Sciences panel. In the draft report, the cancer slope factor (CSF)
increased from 1.5 E+05 mg/kg body weight/day to 1.0 E +06 mg/kg/day.
The new CSF is based on all cancer mortality from the NIOSH cohort. EPA
continues to use a linear method stating there is insufficient evidence
to support a non-linear (threshold) model. In addition, EPA will for
the first time establish an oral reference dose (RfD) of 0.7 pg/kg/day.
The value is based on two epidemiology studies on semen quality and
thyroid hormone levels in populations with significant exposure in
Seveso, Italy. This value incorporates a factor of 10 to convert from
lowest observed adverse effect level to no observed adverse effect
level and a factor of 3 to account for human variation. This level is
less than the 1-4 pg/kg/day established by the World Health
Organization.
If cancer slope factor remains at 1.0 E +06 in the final report, it
would mean increased estimated dioxin risks when doing human health
risk assessments (HHRA). Whether existing HHRAs would need to be redone
is not yet known. Adding the RfD will bring in the bigger question of
the safety of the world’s food supply. The Science Advisory Board will
hold a public meeting on July 13-15, 2010, to discuss this draft and
EPA will accept comments on the document until August 19, 2010.
CCR proposed rule
On May 4, 2010, EPA signed a proposed rule to regulate coal combustion
residues (CCR) under RCRA. EPA is proposing two options on managing
CCR. One would require reversing the Bevill determination for CCR
destined for disposal and to list it as a special waste under RCRA
Subtitle C. These materials would be regulated from the point of
generation to the point of final disposal. This would include generator
and transporter requirements and requirements for managing CCR
(including siting, liners, run-on and run-off control, groundwater
monitoring, fugitive dust control, financial assurance, corrective
action, and closure and post-closure care). Facilities that dispose of,
treat, or store CCR would be required to obtain a Subtitle C permit for
these units. The proposed rule would also regulate the disposal of CCR
in sand and gravel pits as landfills. Existing surface impoundments
will also require liners, with strong incentives to close impoundments
and transition to landfills that store coal ash in a dry form. The
proposed regulations will ensure stronger oversight of the structural
integrity of impoundments in order to prevent accidents. They are also
proposing to prohibit the disposal of CCR below the natural water
table.
The second option proposed would leave the Bevill determination in
place and would place CCR under RCRA Subtitle D with national criteria
for the surface impoundments or landfills. New units would be required
to install composite liners. Existing units would be required to be
retrofitted with liners within five years or close. Both new and
existing units would have groundwater monitoring and corrective action
requirements for releases from the units, closure and post closure
requirements, and requirements to address the stability of surface
impoundments. This option would also regulate disposal in sand and
gravel pits as landfills. EPA is asking for comments on financial
assurances needed under this option. This option would not require
permits nor would EPA be able to enforce the requirements. This would
be left to states and citizen suits. EPA proposes one modification of
this option where existing units would not have to retrofit but could
continue to operate through their useful life.
EPA is carefully not to indicate which of the two options they prefer
(going so far as to label them co-options and not even listing them as
options A and B). The estimated costs to industry for the Subtitle C
option is higher than the Subtitle D option but the estimated benefits
are also much higher, resulting in a benefit/cost ratio for the two
options being about the same. A copy of the signed rule can be found at
www.epa.gov/epawaste/nonhaz/industrial/special/fossil/ccr-rule/index.htm.
The proposed rule will have a 90-day comment period once published in
the Federal
Register
(expected in mid-June).
GHG tailoring rule
On May 13, 2010, EPA Administrator Lisa Jackson signed the greenhouse
gas tailoring final rule. This rule was made necessary because of the
2009 finding that greenhouse gases are “reasonably anticipated to
endanger the public health and welfare of current and future
generations.” The endangerment finding set off a cascade of events to
regulate greenhouse gas emissions from mobile and stationary sources.
Without the tailoring rule, PSD (prevention of significant
deterioration) and Title V permitting requirements would apply to all
stationary sources that emit or have the potential to emit more than
100 or 250 tons of greenhouse gases per year starting on January 2,
2011. EPA determined that this would greatly increase the number of
required permits, impose an undue cost on small sources, overwhelm the
resources of the permitting authority, and severely impair the
functioning of the existing programs. The tailoring rule is designed to
relieve these burdens by phasing in the applicability of these
requirements over time, starting with the largest emitters. EPA is
basing this final rule on three legal doctrines: 1) the “absurd
results” doctrine which authorizes agencies to apply statutory
requirements different from a literal reading when a literal reading
would lead to absurd results; 2) the “administrative necessity”
doctrine which authorizes agencies a way to apply the requirements to
avoid impossible administrative burden; and 3) the “one-step-at-a-time”
doctrine that authorizes agencies to implement regulations in steps.
The final rule sets up a three step process. The first step will begin
on January 2, 2011 where PSD or Title V requirements will apply to a
source’s greenhouse gas emissions only if a source is already subject
to PSD or Title V due to non-greenhouse gas emissions. In this step,
the applicable requirements of PSD (best available control technology –
BACT, which has not yet been defined for greenhouse gases) will apply
to sources that increase net greenhouse gas emissions by at least
75,000 tons per year of carbon dioxide equivalents but only if the
project also significantly increases emissions of at least one
non-greenhouse gas pollutant. For the Title V program, only existing
sources with (or new sources applying for) Title V permits for
non-greenhouse gas pollutants will be required to address greenhouse
gas emissions. Step two will begin on July 1, 2011, and will phase in
additional large sources of greenhouse gas emissions. New or existing
sources not already subject to step one that emit or have the potential
to emit 100,000 tons per year of carbon dioxide equivalents will now
become subject to the PSD and Title V requirements for greenhouse gas
emissions. Step three will phase in additional sources by July 1, 2013.
EPA has not decided how to do this but has committed to rulemaking to
be completed by July 1, 2012, to describe this process.
It is very likely that the legal authority for this rule will be
challenged. In fact, the Southeast Legal Foundation has stated that
they plan to challenge the rule as soon as it is published. They will
base this challenge on the idea that EPA does not have the authority to
modify a statute, even if it is helpful to small businesses. It is
unclear if others will join them in this challenge once the rule is
published. This rule is scheduled for publication in the June 3, 2010, Federal Register.
Greenhouse gas BACT
Because the tailoring rule is final, EPA must develop guidance by
January 2, 2011, for the states on how to implement BACT for greenhouse
gases. Based on what was presented to their Clean Air Act Advisory
Committee, the soon-to-be-released draft guidance will offer advice but
not much in terms of concrete direction. There is currently a lot of
uncertainty as to what will be considered and what will be eliminated.
About the only general themes currently discussed are efficiency and
fuel switching. EPA has not come to terms with how to quantify
efficiency in stationary sources and has not made up their mind on
whether to use fuel switching as BACT. Industry proposed that biomass
fuels be exempt because they were “carbon neutral.” For the time, EPA
appears to have rejected this idea. The committee members have stated
that the short time allowed for the process will eliminate most of the
out-of-the-box ideas and will restrict them to what has already been
presented. EPA is developing a database on greenhouse gas mitigation
strategies starting with cement plants and electric generation units.
EPA plans to release a series of white papers summarizing technical
options on a sector specific basis. Sectors include cement
manufacturing, electric generation units, refining, iron and steel
making, pulp and paper mills, industrial boilers, and nitric acid
plants. In most cases, it appears that EPA’s advice will focus on the
existing top-down pattern for BACT review. At this stage, it appears
that EPA will offer little help while pushing the burdens to implement
this to the states.
Region 6 proposes to deny TCEQ
SSM provisions
In 2006, Texas Commission on Environmental Quality (TCEQ) proposed in
their state implementation plan to allow facilities an affirmative
defense for civil penalties for excess emissions during startup,
shutdown, and malfunction (SSM) events. EPA reviewed that request and
determined that the proposal was inconsistent with the Clean Air Act as
interpreted in EPA policy and guidance. As a result, EPA Region 6
proposed to deny that request on May 13, 2010. EPA will accept comments
on this proposed action until June 14, 2010.
In addition, EPA Region 6 has decided to bar the use of a TCEQ flexible
permit for the Flint Hills East refinery in Corpus Christi, TX because
they believe that the flexible permit would violate the Clean Air Act.
Region 6 will now write the permit for this refinery and potentially
several others unless TCEQ changes their program.
PBDE exposure assessment
On May 24, 2010, EPA announced the availability of the final report
entitled An Exposure Assessment of
Polybrominated Diphenyl Ethers (EPA/600/R-08/086F). The report
provides an estimate of the exposure of Americans to polybrominated
diphenyl ethers (PBDE). A copy of the report can be found at www.epa.gov/ncea.
IRIS - hexachloroethane
On May 13, 2010, EPA announced a 60-day comment period and a public
listening session for the draft document entitled Toxicological Review of Hexachloroethane:
In Support of Summary Information on the Integrated Risk Information
System (IRIS) (EPA/635/R-09/007). The listening session will be
held on June 16, 2010, in Arlington, VA. The comment period closes on
July 12, 2010.
DQA petitions
The Data Quality Act (DQA) was passed as a rider on the 2001
consolidated appropriations bill. It instructed the Office of
Management and Budget (OMB) to create guidelines under the Paperwork
Reduction Act to develop information resource management procedures for
reviewing and substantiating the quality of any agency’s information
before it is disseminated. The Act requires that the guidelines
“ensuring and maximizing the quality, objectivity, utility and
integrity of information (including statistical information)
disseminated by the agency.” The Act also requires that OMB develop a
mechanism where affected persons can seek and obtain correction for
information disseminated by an agency that does not comply with these
guidelines. On February 22, 2002, OMB published those guidelines.
Basically, the guidelines require all federal agencies to ensure that
data used to develop policy are objective, reproducible, and
peer-reviewed and that petitions to correct allegedly flawed data are
accepted and responded to. Environmental groups have opposed the
implementation of these requirements, stating that they are simply ways
to delay agency actions. These guidelines were not extensively used
until recently. Industry has argued that data incorporated into the
recent IRIS draft assessments for the risks of trichloroethylene in
drinking water were not properly peer reviewed. On the proposed targets
for cleaning up dioxin contaminated soils, industry submitted comments
that the data used to develop the clean-up levels do not follow DQA
guidelines. It is expected that industry will continue to use this tool
in challenging data used for setting new policies and standards.
RICE rule challenge
A coalition of energy companies has filed a petition in the U.S. Court
of Appeals for the District of Columbia Circuit (May 3, 2010) asking
for a judicial review of the reciprocating internal combustion engine
(RICE) rule. The coalition has not yet announced what issues they will
be challenging. When the RICE rule was published (March 3, 2010),
environmental groups expressed concern that the rule used carbon
monoxide as a surrogate for organic hazardous air pollutants and that
it did not set numerical emission standards during startup. It is not
clear whether any of the environmental groups also filed petitions.
Climate change – Legislation
Senators John Kerry (D-MA) and Joseph Lieberman (I-CT) released their
climate change bill on May 12, 2010. As released, the bill would set up
a mechanism for EPA and the National Highway Traffic Safety
Administration to work with California and the auto industry to set
future fuel economy rules, would exempt states that already have
cap-and-trade programs, would prevent EPA from regulating greenhouse
gases under the several Clean Air Act provisions, would setup a
sector-by-sector cap-and-trade program, and would require a 50% cut in
emissions from new coal-fired power plants contingent on the deployment
of capture and sequestration capacity. Overall, the draft would cut
greenhouse gas emissions by 17% in 2020 and more than 80% by 2050. It
would set a minimum and a maximum price for carbon emissions at $12 and
$25, respectively. This bill has not yet been formally introduced.
Doing so would have formally sent the bill to almost all of the
committees in the Senate, each would have held hearings and markups,
delaying floor consideration until the Fall. Instead, the draft bill
was informally sent to each committee that would have jurisdiction and
the committee was asked to make their suggested changes. These
suggested changes would be made and then the bill would be formally
introduced. The Leadership is hoping to save time by taking the bill
directly to the floor, avoiding the formal committee markup process.
Even with this unorthodox strategy, it is not clear whether it has the
votes to pass or not. President Obama has encouraged passage during a
speech at a California solar energy facility and during a campaign stop
to support Senator Barbara Boxer (D-CA). Early versions of the bill
contained compromises that expanded off-shore drilling. Whether those
will remain in the bill as a result of the current oil spill remains to
be seen. Senate Majority Leader Harry Reed (D-NV) has indicated the
bill will move forward in June. However, a number of Democrat Senators
are now much more opposed to any bill that would expand off-shore
drilling. While it is too early to declare either victory or defeat,
the task of passing this legislation in this Congress certainly got
harder based on the Gulf oil spill.
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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