 Coalition for
Responsible Waste Incineration
CRWI Update
October 31, 2009
HWC MACT
EPA staff has identified at least two areas where they need additional
data for the next HWC MACT rule. One is mercury emissions for cement
kilns. The current data base only contains mercury concentrations in
the hazardous waste fed to the units. The second data need pertains to
carbon monoxide (CO)/total hydrocarbon (THC) data. The current data
base contains either maximum hourly average CO or THC as measured
during that test. Since compliance with CO/THC is based on continuous
emissions monitors (CEMs), facilities have extensive continuous data
for either CO or THC. EPA has not yet decided whether to use the test
data (maximum hourly average) it already has or to request facilities
submit CEMs data. The Air Office used THC CEMs data to propose a
standard for the Portland cement MACT. The Air Office also asked the
300+ boilers to submit 30 days of continuous CO and THC data. It is
presumed that these data will be used to determine if there is a
relationship between CO and THC and will also be used to set either a
CO or THC standard for this source category.
The Office of Air and Radiation has not been reluctant to request data
from the industry. For example, EPA recently requested that 300+
industrial boilers develop a broad range of data to be used to develop
their next set of standards. The Office of Solid Waste and Emergency
Response (OSWER) may decide that since they need to fill certain data
gaps, they may as well develop a completely new data base for all
source categories. All Phase I sources have additional data from the
comprehensive performance tests to meet the 2002 interim standards. All
OSWER has to do is request this data. No new testing should be needed.
However, this may not be quite as straight forward as it seems.
Facilities were allowed to extrapolate upward for metals and chlorine
during these tests. Unless this is taken into account, the more recent
data may not be considered as “worst case” for certain HAPs.
EPA will need to collect some additional data to complete the next
rulemaking. The initial question will be whether EPA decided to fill
the current data gaps or if they want to redo the entire data base.
Should the Agency only fill the data gaps, the rulemaking could move
forward fairly quickly (proposed rule late in 2010). If they decide to
redo the entire database, it could take a couple of years just to
complete and correct the new database. EPA is expected to make this
decision in the next couple of months.
SSM
On September 23, 2009, the Appeals Court rejected industry’s request
for a re-hearing on the vacatur of the startup, shutdown, and
malfunction (SSM) provisions of the General Provisions. In response, on
October 22, 2009, the industry parties asked the Supreme Court to
review this decision. In a separate action, the court granted EPA’s
request to stay the mandate until October 6, 2009, to allow parties
sufficient time to determine how to address potential compliance issues
arising from the ruling.
On October 29, 2009, EPA published the final area source standards for
the chemical manufacturing sector. For these sources, the standards
apply at all times, including SSM events, except for continuous process
vents for nine source categories. During periods of startup and
shutdown, the standard for these process vents are 85% control instead
of the 95% control during normal operations. EPA made this decision
because filling and inerting of these vessels generally result in
significantly different emissions than from normal operations. EPA
declined to set different emission standards during malfunctions,
stating that they did not view malfunctions as a “distinct operating
mode” and as such, emissions during malfunctions do not need to be
incorporated into the development of normal operation standards. These
vents, like all other operations, are expected to meet the current
standards during malfunctions. There does not appear to be any
discussion of what action EPA would take when excess emissions occur
during malfunctions. Presumably, the facilities must continue to
develop and implement an SSM plan. What, if any, protection this plan
gives the facility is not known at this time.
In addition, EPA published a final MACT rule for heat exchange systems
in petroleum refineries on October 28, 2009. These requirements apply
at all times, including periods of startup, shutdown, and malfunction.
EPA reasoned that properly operated heat exchangers will not leak HAPs
into cooling waters during startup and shutdown. EPA concluded that
only during malfunctions are there potentials for HAP emissions. Again,
it is unclear what enforcement actions will be taken in response to
malfunctions.
PSD Tailoring Proposed Rule
EPA published the proposed Prevention of Significant Deterioration
(PSD) tailoring rule in October 27, 2009. This rule proposes to raise
the PSD threshold for greenhouse gases from 250 tons per year to 25,000
tons per year. Most observers believe that this proposal exceeds EPA’s
authority under the Clean Air Act. The U.S. Court of Appeals for the
District of Columbia Circuit has vacated or remanded a number of rules
where they believe EPA exceeded their authority. Judge David Tatel (an
Appeals Court Justice that has ruled on many of these cases) recently
told an Environmental Law Institute gathering that the court will
continue to strike down rules where agencies over step their
boundaries.
Once they make the endangerment finding, EPA will be forced to regulate
emissions of greenhouse gases from both mobile and stationary sources.
Regulating greenhouse gas emissions from mobile sources can be
administratively as simple as changing fuel economy standards. However,
regulating greenhouse gas emissions from stationary sources is more
complicated. Section 111 of the Clean Air Act defines major sources as
any source that emits more than 250 tons of a pollutant per year. This
threshold works for most traditional pollutants but for greenhouse
gases, this would mean a huge number of sources would now have to
obtain PSD permits for greenhouse gas emissions. In an attempt to limit
this to larger sources, EPA is proposing to raise this limit to 25,000
tons per year for greenhouse gas emissions. However, if this attempt
does not withstand a challenge (assuming some one challenges it), EPA
will be forced to regulate every stationary source of greater than 250
tons per year of greenhouse gas emissions. EPA will accept comments on
this proposed rule until December 28, 2009.
When EPA finalizes the endangerment finding in April of 2010, the Clean
Air Act requires EPA to determine Best Available Control Technology
(BACT) for greenhouse gases. EPA is addressing this for mobile sources
by increasing energy efficiency (increased miles per gallon fuel).
Energy efficiency methods will work for some stationary sources (e.g.,
electric power generation) but will not work for others. The more
traditional approach has been to require add-on air pollution control
devices as BACT. EPA acknowledges that add on controls may not work
very well for greenhouse gas emissions. Determining BACT for the
sources that cannot use energy efficiency will be challenging.
Greenhouse Gas Reporting Rule
EPA published the final greenhouse gas reporting rule on October 30,
2009. Hazardous waste combustors that already have monitors in place to
quantify carbon dioxide mass emissions must report emissions if they
meet the 25,000 tons per year threshold. Hazardous waste combustors
that do not have monitors in place report only the fossil fuel use but
only if the facility meets the 25,000 tons per year threshold.
Industrial Wipes
On October 27, 2009, EPA published a notice of data availability and
requested comments on a revised risk analysis to support proposed
revision to the regulations governing the management of solvent
contaminated wipes. These revisions are in response to public comments
on the 2003 proposed exclusions from the definition of solid and
hazardous waste. Comments will be accepted until December 28, 2009.
IRIS Update
On October 21, 2009, EPA established an Integrated Risk Information
System (IRIS) Update Project. The purpose of this project is to revisit
a number of dose-response assessment values that are more than 10 years
old. While EPA is not expressly requesting comments, they will take
comments until December 21, 2009. The list of chemicals in question can
be found in the Federal Register
notice.
Flexible Permits Rule
On October 6, 2009, EPA published the flexible air permits rule. This
rule was initiated during the Bush Administration and was held up by
subsequent review by the Obama Administration. After the review, the
rule was published without revision.
Refinery Residual Risk Rule
On October 28, 2009, EPA proposed to formally withdraw the residual
risk and technology review portion of the petroleum refinery MACT rule.
This rule was signed by then Administrator Stephen Johnson on January
16, 2009. The new Administration reviewed this rule and determined that
the residual risk and technology review may not accurately characterize
the risk posed by the current MACT standards. EPA would like to collect
additional data and redo the analyses. Comments on the proposed
withdrawal will be accepted until November 27, 2009.
Title V Permits
The Obama Administration has revived a Clinton Administration process
of using Title V permits to impose broader policy changes. For example,
on October 16, 2009, EPA ordered the Indiana Department of
Environmental Management to redo their emissions analysis of the BP
Whiting refinery. The previous analysis allowed the refinery to proceed
with projects under less stringent minor source rules rather than as a
major source subject to new source review requirements. Other examples
include a September 14, 2009, order to Kentucky to justify their use of
coarse particulate as a surrogate for fine particulate in a prevention
of significant deterioration permit issued to Louisville Gas &
Electric Company, a similar July 13, 2009, order to Tennessee Valley
Authority, and an October 8, 2009, order to a Colorado natural gas
compressor station on aggregation. Industry observers point out that
the Title V permit is not intended to implement new requirements but
only to serve as a place to hold all Federal requirements. As such,
they contend that EPA is over-stepping their authority.
RCRA Enforcement
On October 1, 2009, EPA announced a proposed enforcement and compliance
action against Frontier Refining, Inc. in Cheyenne, WY. The Agency
alleges that Frontier violated RCRA by storing waste in ponds that were
neither constructed nor operated properly. In addition, EPA alleged
there were other violations related to closing the pond and providing
financial assurances for closure. The proposed order requires Frontier
to take the pond out of service and complete closure. EPA is also
seeking a $7 million penalty.
Climate Change Legislation
Since the release of the Senate version of a climate change bill (S
1733), the posturing on both sides of the aisle has been interesting.
Senator Barbara Boxer (D-CA) held a series of hearing the week of
October 21 on the new bill. Republicans seem to have lined up firmly
against it and Democrats are sharply divided. However, one Republican,
Senator Lindsey Graham (R-SC), seems to be seeking compromises,
especially on nuclear energy, that will allow sufficient Republicans to
support the legislation. The environmental groups are strongly opposed
to anything that will promote nuclear energy as an alternative. Based
on discussions with other Senators, Senator Boxer introduced a revised
bill during the hearings in an attempt to gain additional support. To
further confuse things, she introduced a second revised bill a couple
of days later. Mark up in Committee is scheduled for early November. It
is not clear whether she will be able to get enough Republicans to show
up for the hearing to get a quorum (need at least two minority party
members present to establish a quorum). Should the Republicans decide
to show up, it is clear Senator Boxer has the votes to get the bill out
of committee. It is not at all clear whether she has the votes to get
it passed the Senate.
Riders always show up in budget bills. In this years (FY 10) EPA
appropriation bill, a rider was included that prevents EPA from
requiring concentrated animal feeding operations to report greenhouse
gas emissions in 2010. This restriction only lasts for FY 10. It also
includes language exempting 13 older steam ships operating on the Great
Lakes from EPA’s proposed emission standards for ships. Both were from
with Democrat sponsors.
Climate Change – Regulations
On October 6, 2009, Public Citizen filed suit in the District Court of
Travis County, Texas asking the court to force the Texas Commission on
Environmental Quality to issue regulations on carbon dioxide emissions.
The suit outlines “scientific proof” that carbon dioxide is an air
contaminant under the Texas Clean Air Act. Public Citizen contends that
under Texas law, any gas created by a non-natural process (including
carbon dioxide generated by a power plant) is an air contaminant under
a plain language reading of the Texas Clean Air Act.
EPA is expected to finalize their greenhouse gas emission standards for
light-duty mobile sources in April 2010. EPA is currently in the
process of developing a proposed rule for heavy-duty mobile sources. On
October 6, 2009, EPA staff told the Clean Air Act Advisory Committee
that the Agency plans to propose greenhouse gas standards for a number
of other mobile sources within the next year. These could include
marine vessels, aircraft, outdoor power equipment, recreational
vehicles, farm and construction equipment, lawn and garden equipment,
and logging industry operations. Implementation of greenhouse gas
emission standards for stationary sources may take a little longer
while EPA and the courts work out the legal uncertainties of exempting
smaller sources (those emitting between 250 and 25,000 tons per year).
On October 5, 2009, President Obama issued an Executive Order requiring
federal agencies to set greenhouse gas emission targets. The agencies
will have 90 days to provide the Council on Environmental Quality (CEQ)
a “Strategic Sustainability Performance Plan” that will establish
greenhouse gas emission reductions to be achieved by 2020 from a 2008
baseline. The Executive Order does not set specific targets but lets
each agency set their own. In addition, the Executive Order requires:
- A 30% reduction in vehicle fleet petroleum use by 2020;
- A 26% improvement in water efficiency by 2020;
- A 50% recycling and waste diversion by 2015;
- That 95% of all applicable contracts meet sustainability
requirements; and
- All agencies implement the 2030 net-zero-energy building
requirements.
CEQ will have 120 days to compile the reports and provide the President
with government-wide targets to reduce direct greenhouse gas emissions
from federal agencies. In addition, CEQ is to provide a report to the
President within 270 days on indirect ways federal agencies can reduce
greenhouse gasses through such activities as vendor supply chains,
delivery services, employee travel and commuting.
Dioxin Clean Up
EPA Region 5 has reached a proposed settlement agreement with Dow
Chemical Company on cleaning up dioxin-contaminated sites around their
Midland, Michigan facility. Stakeholders will have until November 17 to
comment on the proposed settlement agreement. Additional details can be
found at www.epa.gov/region5/sites/dowchemical.
Dow had given the University of Michigan an unrestricted grant to study
the health impacts of the current contamination on local residents. On
September 30, 2009, EPA released their review of that study. EPA
downplayed any significance of the study saying that since the study
did not take into account children’s exposure to dioxin, did not focus
on areas of highest contamination, and did not include activities
(e.g., eating local fish and game) that could lead to higher dioxin
exposure, the study would have a minimal impact on their decision
regarding the clean up. University of Michigan researchers responded
that it would have been infeasible and unethical to take sufficient
blood from children to be able to detect the low levels of dioxin
congeners present. The researchers also pointed out that the study
looked at 23 different properties and found no relation between soil
contamination and blood dioxin levels. One of the drivers for EPA’s
concern may be the theoretical model used to predict impacts from a
lifetime of exposure. University of Michigan staff pointed out that
results from the theoretical model does not seem to match real world
data.
CRWI Meeting
The next CRWI meeting will be held on March 2-3, 2010, in Victoria, TX.
The meetings will include a tour of INVISTA’s combustions operations.
For more information,
contact CRWI.
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