 Coalition for
Responsible Waste Incineration
CRWI Update
October 31, 2007
HWC MACT
In the October 18, 2007, Federal
Register, EPA announced that the comment period for the “legal
analysis” would be extended until November 27, 2007. As a result, EPA
filed an unopposed motion with the court to move their next reporting
date from December 5, 2007, to February 29, 2008. At that time, EPA
will have made their final decisions on which standards to defend and
which to re-do.
In the September 27, 2007, notice, EPA made it clear that it was their
intention to remand any standards that are to be re-done. However, at
least one trade group will argue for vacating these standards. Whether
their arguments will convince EPA to change their minds has yet to be
seen. The other major decision that EPA will need to address in the
February 29, 2008, report to the court is whether to keep the
litigation together or split it into two parts. The way EPA has this
process currently structured, one group of standards will be revised
and the other left alone. For the standards that are to be revised, the
court will have no interest in reviewing these standards since they are
not “final decisions.” However, for the standards EPA is not planning
to change (including the incinerator standards and the health based
alternative standard for chlorine), the court may consider these as
“ripe” for review. The environmental groups will likely argue that the
litigation should be split and the litigation for the standards that
have not been changed should go forward and the only parts that should
be delayed are the ones that EPA is going to change. Other parties
(including EPA) may oppose this, arguing that the issues have a number
of things in common and should all be decided at one time. If the
latter view prevails, the second litigation of the HWC MACT rule may
not take place until 2012. If the former view prevails, parts of the
second HWC MACT litigation could go forward in 2008 and the other parts
may wait until 2012. It could certainly get interesting if the courts
were to remand/vacate one part of the rule while EPA is redoing another
part.
Plywood MACT
On June 19, 2007, the Appeals Court vacated two provisions of the
Plywood MACT. On October 29, 2007, EPA published a direct final rule
implementing the court mandate; changing the compliance date for this
rule from October 1, 2008 to October 1, 2007 and removed the regulatory
language creating and delisting the low risk subcategory. Since this
action was simply fulfilling the court’s mandate, EPA decided it was
not necessary to go through the proposal process. This action became
effective on the date it was published. It is interesting that EPA has
not published similar notices removing the vacated parts of the Brick
MACT or industrial boiler MACT regulations.
EPA Enforcement Priorities
In an October 12, 2007, Federal
Register notice, EPA announced their national enforcement and
compliance assurance priorities for fiscal years 2008, 2009, and 2010.
For air toxics, the office will focus on problem areas in leak
detection and repair (LDAR), industrial flares, and surface coatings.
The surface coating group has 14 MACT standards. During the 2005-2007
time period, EPA evaluated more than 40 MACT standards, identified
these three areas as national priorities because there were high levels
of non-compliance. This was attributed to a lack of understanding of
the regulatory requirements, failure to adhere to the requirements, and
failure to operate control devices according to manufacturer’s
specifications. Additional details can be found in the notice.
EPA Enforcement
EPA announced two large enforcement actions during October. On October
9, 2007, American Electric Power (AEP) agreed to reduce sulfur dioxide
and nitrogen oxide emissions by 813,000 tons, pay a $15 million
penalty, and spend an additional $60 million on projects to mitigate
the effects of past emissions. They estimated that the cost for the
equipment to reduce sulfur dioxide and nitrogen oxide emissions would
be $4.6 billion. This agreement covers 16 facilities in five states.
The settlement resolves a lawsuit filed against AEP in 1999 alleging
violations of the new source review provisions of the Clean Air Act.
On October 25, 2007, EPA announced an agreement with BP North America
that included criminal fines for violations in Texas and Alaska and an
agreement to spend $400 million on safety upgrades and improvements to
prevent future spills. The criminal fines included $50 million for the
explosion at their Texas City refinery that killed 15 people. In
addition, the company pleaded guilty to a felony violation of the Clean
Air Act and will serve three years on probation for the incident. They
will also be required to complete a facility wide study of their safety
valves and renovate their flare system to prevent excess emissions. In
Alaska, the company will pay a $12 million criminal fine for spilling
200,000 gallons of crude oil on the Alaska tundra. BP pleaded guilty to
one misdemeanor of the Clean Water Act and will serve three years
probation for this spill. In addition, BP will be required to replace
16 miles of pipeline.
Despite this, Democrat leadership in Congress remains concerned that
EPA enforcement is still inadequate. Responding to a Washington Post article,
Representative John Dingell (D-MI) and Bart Stupak (D-MI) sent a letter
to EPA Administrator Steve Johnson asking why more was not being done.
The Washington Post article
alleged that the Agency failed to initiate criminal prosecutions in
other investigations even though they were clearly merited. Since Mr.
Dingell is the Chairman of the House Energy and Commerce Committee and
Mr. Stupak is the Chairman of the oversight subcommittee of that
committee, the Administrator will have to take these questions
seriously. In addition, Mr. Dingell and Mr. Stupak have questioned why
the settlements with AEP and BP were only fines and did not include
jail time for company executives.
TCEQ Adopts Phase II Standards
The Texas Commission on Environmental Quality (TCEQ) has announced the
intention to incorporate, by reference, all of the amendments to the
HWC MACT rule (subpart EEE) since 2005. This includes the replacement
standards and the Phase II standards promulgated on October 12, 2005,
the April 20, 2006 amendment revising compliance during startup,
shutdown, and malfunction events, and the October 26, 2006, amendment
suspending the new source PM standard for cement kilns. TCEQ expects
this rule to be published on November 23, 2007, with an effective date
of December 2, 2007. For additional information, visit TCEQ’s web site
(www.tceq.state.tx.us/rules/pendadopt.html).
Residual Risk Litigation
EPA promulgated their residual risk determination for organic hazardous
air pollutions from the synthetic organic chemical manufacturing sector
in December 2006. This rule is often called the HON (hazardous organic
NESHAP) rule. The Natural Resources Defense Council (NRDC) and the
Louisiana Environmental Action Network (LEAN) promptly challenged this
rule. In their opening briefs, submitted to the court on September 12,
2007, the environmental groups made three main arguments.
- EPA
failed to follow the plain language of the statute when they
failed to promulgate additional standards where the risks were greater
than 1-in-a-million.
- EPA
failed to review and revise all MACT
standards every 8 years as required under section 112(d)(6).
- EPA
used incomplete, unverified, and non-representative data when
conducting the risk assessments.
In
Section 112(f)(2)(A) of the Clean Air Act Amendments of 1990, the
statutory language states that if the original MACT standards do not
reduce the risk to below 1-in-a-million, EPA has to promulgate
additional standards for that category to further reduce the risks.
However, in the next section of the Clean Air Act (112(f)(2(B)),
Congress also indicated that EPA could use the Benzene NESHAP as a
model when promulgating residual risk rules. Under the Benzene NESHAP
model, if the risk is less than 1-in-a-million, no additional action is
needed. If the risk is greater than 100-in-a-million, some regulatory
action to reduce the risk is required. In between these two numbers,
the Agency can consider other factors (including cost) in deciding
whether to impose additional standards. Thus, Congress appears to have
given EPA conflicting instructions on how to do residual risk. EPA has
chosen to use the benzene NESHAP as a model rather than the plain
language of 112(f)(2)(A). In challenging this rule, the environmental
groups have asked the court to decide what Congress meant.
Section 112(d)(6) requires EPA to review and revise all MACT standards
“as necessary” every eight years “taking into account developments in
practices, processes, and control technologies.” In the final rule, EPA
stated that they found no significant developments in practices,
processes, or control technologies and as such, would not require any
additional standards under 112(d)(6). In their brief, the environmental
groups argue that this language requires EPA to redo the MACT floors
every eight years. Since EPA did not do this, they ask the court to
tell EPA to go back and reset the floor every eight years. If the court
agrees, this would require EPA to ratchet down MACT standards every
eight years.
Finally, the environmental groups argue that EPA should not have relied
upon data submitted by the industry to determine the residual risk.
Instead, EPA should have issued a Clean Air Act section 114 information
request to gather the data necessary to calculate residual risk for
every facility in the category.
EPA will file their brief in November, defending their actions. It is
too early in the process to guess which side will win. However, the
stakes for industry are quite high. This ruling will set the precedent
for all subsequent residual risk rules (including the HWC MACT rule).
Dioxin
In July 2006, the National Academy of Sciences (NAS) released a highly
critical review of EPA’s 2003 draft risk assessment of dioxin. The
report listed a series of alternative approaches to assessing cancer
risk and suggested downgrading EPA’s classification from ”carcinogenic
to humans” to “likely to be carcinogenic to humans.” In addition, the
NAS panel suggested setting a non-cancer exposure limit (reference
dose) and to examine the overall assessment’s uncertainty. EPA is
planning to release a work plan in November that will describe how the
Agency will respond to the NAS review. Observers expect that the
responses will come out piecemeal and will not be available in any form
for at least a year. EPA is currently looking for expertise outside the
Agency to do part of the work. It looks like the process that was
started in 1991 will take a few more years to complete.
Non-Linear Risk Models
EPA’s cancer risk guidelines, revised in 2005, recommend the use of a
linear model to extrapolate risk from the last know value to zero.
However, the guidelines also allow the use of a non-linear model if the
data shows that a non-linear response is more appropriate. Both ways
can be used to estimate the risk of exposure for the areas between the
lowest measured exposure and zero exposure. Some members of the
scientific community believe that “one molecule can result in cancer”
but others believe that there is no scientific evidence to support that
belief. Ethylene oxide is the first compound to be evaluated under the
new guidelines. The draft assessment proposes to tighten the 1985
exposure threshold of 3.6 ppb to 0.06 ppt, based on a linear model.
Preliminary reports from a Science Advisory Board panel reviewing the
draft indicate that the panel will recommend that the agency should use
both a linear and a non-linear model to assess the risks at low doses.
Several panel members believe a non-linear model would be more
appropriate because carcinogens that are mutagenic do not have a linear
relationship with exposure. It is unclear how EPA will respond to these
suggestions by the panel. It is quite interesting that both the
National Academy of Sciences and the Science Advisory Board are pushing
the Agency to consider the use of non-linear models to estimate risks
at low exposures.
PCB Program Transferred
On October 9, 2007, EPA published a final rule that moved the
management of the PCB cleanup program and most of the PCB disposal
program from the Office of Prevention, Pesticides, and Toxic Substances
to the Office of Solid Waste and Emergency Response (OSWER). This will
not change the cleanup and disposal programs within the Agency. It
simply changes the office that is overseeing the program. Any current
agreements remain in place but all new agreements must be submitted to
OSWER. The notice also amends 40 CFR parts 750 and 761 to account for
this change in responsibility.
Climate Change
Early in October, Congressmen John Dingell (D-MI) and Rick Boucher
(D-VA) released the first of a series of climate change white papers.
This paper contains a mixture of recommendations and a list of issues
for further discussions centered on a cap-and-trade program. The paper
concludes that the United States should reduce greenhouse gas emissions
by 60 to 80 percent by 2050. To do this, the United States should adopt
an economy wide, mandatory program. While the white paper argues that
the program should cover all facilities that emit greenhouse gases, it
goes on to outline exemptions for such small sources as residential use
of natural gas, heating oil or coal. While more than 350,000 facilities
emit carbon dioxide from burning fossil fuel, 47,000 emit more than
1,000 tons of carbon dioxide per year, and about 8,000 of these sources
emit more than 10,000 tons of carbon dioxide per year. This information
will be used to help decide the threshold for which facilities are
covered. Alternatively, the paper discusses whether the point of
regulation should be the fossil fuel itself, rather than the stack of
the impacted facilities. This paper and the ones to be released in the
future will be the basis for legislation in the House of
Representatives. While there are several other climate change bills
that have already been introduced in the House, the Dingell-Boucher
bill will be the one that will be moved though the House Energy and
Commence Committee and on to the floor of the House. A copy of this
paper can be found on the committee web site
(energycommerce.house.gov).
On the Senate side, Senators John Warner (R-VA) and Joe Lieberman
(I-CT) introduced the America Climate Security Act (S 2191). It is
co-sponsored by five Democrats and 4 Republicans. This bill is designed
to reduce greenhouse gas emissions in the United States by 70 percent
by 2050. It covers any source that emits more than 10,000 tons of
carbon dioxide equivalents per year. Residential and commercial boilers
and space heaters are not covered by the bill. The bill will set up a
cap-and-trade program and set the number of tons of carbon dioxide
equivalents that can be released per year (one allowance is 1 metric
ton of carbon dioxide equivalents). The number of allowances is set at
5.2 billion in 2012 and will reduce by 1.8 percent per year until 2050
when the number of allowances will be 1.56 billion. The Climate Change
Credit Corporation will auction 18 percent of the allowances in 2012.
The percentage will increase to 73 percent in 2050. The rest will be
distributed to the industrial sectors based on a fixed percentage
outlined in the legislation. The bill also starts a series of
rulemakings, surveys, and technical reviews for developing a national
infrastructure for geological sequestration. It also contains
provisions for biological sequestration. The Chairwoman of the Senate
Environment and Public Works Committee, Senator Barbara Boxer (D-CA),
has indicated that she plans a markup of this bill in subcommittee in
early November. She hopes to have it out of the full committee by the
end of this year.
Activists continue to push for carbon dioxide limits on power plants.
Sierra Club filed a petition with EPA’s Environmental Appeals Board
asking that the permit for a Utah coal fired power plant be sent back
to the Agency because it does not include carbon dioxide emission
limits. There have also been challenges to existing and pending permits
for coal-fired power plants in New Mexico, Illinois, and Nevada. All of
these challenges are a direct result of the Supreme Court decision that
carbon dioxide is a pollutant under the Clean Air Act. Once that
designation is made, these groups argue that each permit must include a
section on what is the best available control technology (BACT) for
that pollutant when applying for a permit. Since none of these permits
did this, they should be returned to the Agency for additional work. In
addition, the Kansas Department of Health and Environment rejected an
air permit for a proposed coal-fired generating plant because its
carbon dioxide emissions would harm the environment. EPA continues to
have the position that it must first develop regulations for mobile
sources before they can address carbon dioxide emissions from
stationary sources. They also point out that putting permit limits on
carbon dioxide emissions prior to developing regulations would violate
the Administrative Procedures Act and would not be legal.
EPA announced that they plan to propose regulations in the summer of
2008 to govern the geological sequestration of carbon dioxide. The
regulations will be written under the authority of the Safe Drinking
Water Act by the underground injection control program. This program
currently regulates how fluids can be injected into underground
formations.
Phthalates
Governor Arnold Schwarzenegger has signed legislation that will ban in
California the use of phthalates in toys and other products designed
for children under the age of three. The ban will take effect in 2009.
Senator Dianne Feinstein (D-CA) has indicated she will pursue a similar
federal ban but has not provided any details or timetables.
Dow Corning Gasification Unit
On October 1, 2007, Dow Corning broke ground on a gasification unit
that will take 660 tons of liquid chlorinated organic waste per year
and convert it to aqueous hydrochloric acid and synthetic natural gas.
Dow expects the unit to produce about 200 pounds per hour of HCl and
10.5 MBtu/hr of syngas. The unit will also produce about a third of the
facility’s steam needs. The HCl will be re-used in the manufacturing
process and the syngas will be used to replace about 400 billion Btu
per year of natural gas. Dow Corning states that this will be the first
plasma-based processing system used to recycle chemical wastes in the
United States. Veolia Environmental Services has a 10-year contract to
operate the facility. Operations are expected to begin by the end of
2008.
CRWI Meeting
The next CRWI meeting will be held on November 8-9, 2007, in Chantilly,
VA. The major item on the agenda will be how to respond to EPA’s
decisions on the HWC
MACT rule. For additional information, please contact CRWI.
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