INTO THE VOID – U.S. EPA’s Recent Boiler MACT and CISWI Information Collection Request [All4 Inc.: June 23, 2009)
Background
On June 8, 2007, the United States Court of Appeals for the District of Columbia Circuit (court) vacated and remanded two (2) U.S. EPA rules promulgated under the Clean Air Act (CAA)—The Commercial and Industrial Solid Waste Incineration (CISWI) definitions rule (‘‘CISWI Definitions Rule’’), issued under CAA Section 129, and the Industrial Boilers Maximum Achievable Control Technology (MACT) standards rule (Boiler MACT), issued under CAA Section 112. The court concluded that the U.S. EPA erred by excluding units from the CISWI Definitions Rule that combust solid waste for the purposes of energy recovery and instead including such units in the Boiler MACT. In response to the court’s decision, U.S. EPA is preparing to establish new MACT standards under CAA Section 112 for boilers and Section 129 for CISWI units.
CAA Section 112 requires U.S. EPA to promulgate regulations to control emissions of hazardous air pollutants (HAP) from major sources in each source category listed by U.S. EPA under Section 112(c). The statute requires the regulations to reflect the maximum degree of reduction in emissions of HAP that is achievable taking into consideration the cost of achieving the emission reduction, any non-air quality health and environmental impacts, and energy requirements. As noted previously, this level of control is commonly referred to as MACT.
CAA Section 129 requires that emission standards be set for specific hazardous air pollutant (HAP) and certain other non-HAP pollutants. Specifically, CAA Section 129 requires numeric emission limits for the following ten (10) pollutants: cadmium, carbon monoxide (CO), dioxins/furans (D/F), hydrogen chloride (HCl), lead (Pb), mercury (Hg), nitrogen oxides (NOX), particulate matter (total and fine), opacity (as appropriate), and sulfur dioxide (SO2). The CAA Section 129 pollutants listed above represent the minimum that must be regulated; U.S. EPA has the discretion to establish standards for other pollutants as well.
In response to the vacated rules, the U.S. EPA has recently sent Information Collection Request (ICR) letters, pursuant to authority granted to them by Section 114 of the CAA, to a number of sources that operate boilers and potential CISWI units requiring that the sources perform emissions testing and fuel sampling. The results of all stack tests, fuel analyses and monitoring data required by the ICR must be submitted to the U.S. EPA by October 15, 2009. The U.S. EPA intends to use the data gathered in response to the ICR letters to establish new Boiler and CISWI MACT emission standards and to select the appropriate surrogates for demonstrating compliance in response to the court’s vacatur of the rules.
Process Heater and CISWI Test Methods and Data Reporting Q&A Session
In response to the numerous questions that were received by U.S. EPA in response to the ICR letters, on June 18, 2009, U.S. EPA hosted a Boiler, Process Heater and CISWI Test Methods and Data Reporting Q&A Session by webinar for affected sources and stakeholders. The intent of the webinar was for U.S. EPA to provide clarification on the test procedures, methods and reporting guidance that were included with each ICR. At the outset of the webinar, U.S. EPA stated that it would only respond to questions regarding testing and reporting, and directed that inquiries concerning all other topics (e.g., units selected to test, exemptions and extensions) be submitted by email to the appropriate contact listed in each ICR. There were numerous questions submitted by webinar participants and U.S. EPA was not able to respond to them all. U.S. EPA committed to posting a complete list of the webinar questions and their responses in the Guidelines Section of their website at www.epa.gov/ttn/emc by Friday, June 26, 2009. In addition, ICR recipients will be notified by email of any changes to the ICR guidance resulting from discussions during the webinar. Several highlights of the webinar included:
Selection of CISWI Units
In the introductory overview, U.S. EPA explained that units selected for CISWI testing were those identified as combusting materials considered to be solid waste based on the information provided in the Advanced Notice of Proposed Rulemaking (ANPR) regarding Identification of Non-Hazardous Materials That Are Solid Waste. This ANPR was published at 74 Fed. Reg. 41 on January 2, 2009.
Operations During Testing
ICR recipients remain without clear guidance on how to operate the selected units during the required testing. The Boiler MACT ICR requires that testing be conducted at a load that reflects typical operations at the facility. In attempt to clarify this, U.S. EPA further stated that the units should be operated at "typical maximum" loads. For multi-fuel units, U.S. EPA said that separate testing was not required for each fuel, and that testing should be done using the primary fuel for the unit.
The CISWI ICR requires that testing be conducted at conditions (i.e., load and materials combusted) that also reflect typical operations for the unit. For units that combust materials identified as solid waste in small proportions mixed with other fuels, or that only introduce the solid waste material intermittently, U.S. EPA said it wants these units to combust as much of the solid waste material as possible during the testing. For both Boiler MACT and CISWI testing, it was confirmed that the requirement for typical operation also applies to all control devices on the unit.
Test Protocols
U.S. EPA encouraged all sources to develop a test protocol for quality assurance purposes. However, the ICR does not require submittal of test protocols to U.S. EPA or state and local air regulatory agencies/permitting authorities for approval prior to the testing. U.S. EPA will not be reviewing or approving test protocols unless specific alternative methodologies are being proposed.
Test Observation
U.S. EPA does not intend to observe the testing conducted pursuant to the ICR. However, state and local air regulatory agencies must be notified at least 21 calendar days before beginning testing, and it will be up to those agencies to decide whether they will observe the testing.
Alternative Test Methods
U.S. EPA provided clarification regarding the use of available alternative test methods in response to numerous questions posed by participants during the webinar. U.S. EPA also indicated that it will consider and may approve other specific alternative testing methods in addition to those listed in the ICR. Requests for approval of alternative methods should be submitted by email to the appropriate contact listed in the ICR. Responses to such requests will be posted on the U.S. EPA website at www.epa.gov/ttn/emc.
Fuel Sampling in Lieu of Testing
U.S. EPA said that fuel sampling may be used in lieu of stack sampling for certain sources, such as oil fired units without control devices.
Previously Collected Data
Previously collected test data may be used to satisfy the ICR, provided all the information requested in the ICR is available and submitted.
Small Emissions Units
Several small gas-fired units (e.g., hot water heaters less than 10 MMBtu/hr) with narrow discharge stack diameters received Section 114 Boiler MACT ICRs. U.S. EPA was asked how it expected simultaneous testing (or any testing, for that matter) for particulate matter (including PM2.5 and condensables) could be carried out on such units with stacks too small to accommodate the PM2.5 sampling apparatus and/or the simultaneous testing of PM and metals. U.S. EPA’s response was that this testing could be accommodated by using multiple sampling locations upstream or downstream of each other, separated by the necessary stack diameter distances. The response didn’t appear to consider the practicalities of testing these small units.
Extensions
U.S. EPA said it will consider requests for extension of the testing and reporting deadline in certain circumstances, such as seasonably operated units that will not be fired until after the October 15, 2009 deadline. Another alternative discussed by U.S. EPA would be to locate another similar unit to test in place of sources seeking extensions.
Despite U.S. EPA’s efforts during the two and a half hour webinar, many questions remain for ICR recipients regarding the completion of the required testing. Sources should continue to submit their questions and requests for answers via email to the appropriate U.S. EPA contact listed in each ICR.
MOVING FORWARD
The one point that is perfectly clear is that those facilities that were unlucky enough to receive an ICR will need to plan and schedule the test program, hire a qualified emission testing firm, conduct emission testing (and/or fuel analysis as applicable), and submit the results to U.S. EPA by October 15, 2009. Due to the extent of the testing and the limited time that was allocated by U.S. EPA for its completion, selected facilities must begin the planning process immediately to get the most of the ICR test program as well as provide U.S. EPA the data they need. ALL4 offers the following suggestions related to test program planning:
Review your ICR letter carefully to fully understand what U.S. EPA is requesting - your facility will need to meet the requirements of the Section 114 ICR request either by testing or potentially via previously collected data. Defining your test program may require direct input from U.S. EPA especially for multiple fuel fired units or multiple stack configurations. Designing your test program may require the use of alternative emission test methods and/or specialized fuel analyses procedures.
Emission testing resources are limited - as the deadline nears, the availability of qualified stack testing resources could become an issue. Define your program and procure testing services NOW!
Successful emission test programs entail much more than just testing - maximize the likelihood of success and usability of the emission test results by recognizing that there is much more going on than the act of emission testing. Specifying and using the appropriate methods, properly collecting the fuel samples, working with the laboratories to ensure that they are using the appropriate methodologies to minimize bias, identifying and collecting operating parameters, developing emission factors, and operating the emissions units and air pollution control devices appropriately to get the most representative data will all contribute significantly to a successful test program that provides accurate and useful data to the facility.
Consider how your facility can get the most out this test program - CISWI sources today could be Boiler MACT sources tomorrow (and vice-versa). Subpart LLL (Portland Cement MACT) sources could become CISWI sources. Your facility may opt to discontinue solid waste firing (however U.S. EPA eventually defines it) which may impact the applicability of existing, proposed, or vacated rules. There may be benefit in conducting fuel sampling for future compliance strategies.
FINAL THOUGHTS – Confusion, Litigation, Missed Opportunity, and the MACT Hammer
Confusion: U.S. EPA must establish emission standards for CISWI units and boilers and they’ve made it clear that the required testing will be used to fill data gaps. Everyone understands that the U.S. EPA already has a voluminous database containing test results for both types of units. Until the definition of solid waste (DSW) rule (Subtitle C of RCRA, 40 CFR Parts 260 and 261) is finalized, it is not even clear which category certain units will belong in. The integration of the new data that will be derived from the required testing, and the development of standards from the combined data sets, will be a complex and time consuming process.
Litigation: The standards that result from the process will, without doubt, be controversial. Given the undisputed differences in how units will be operated under different test programs, what test methods will be used, what fuels will be fired, etc., the standards that result from the data developed during the test programs will be ripe for litigation.
Missed Opportunity: Given the limited guidance on how to operate the units during the required testing and U.S. EPA’s stated position that test protocols are not required and won’t be approved, the ability to use the resulting test data for other purposes will be limited. For example, it would be comforting to know that the results of a $50,000 test program conducted this summer could be used for compliance demonstration purposes at some time in the future when the standard is established. Based on what we’ve learned so far from U.S. EPA, that ability apparently won’t exist. A key question facing the facilities burdened with these test programs is what, if any, additional value may be gained from the testing as we’ve outlined above.
The MACT Hammer: One other important aspect of this whole process that many are overlooking is the CAA Section 112j MACT "hammer" provisions. As the process for establishing the CISWI and Boiler MACT rules drags on, the question of the applicability of the MACT hammer provisions that require "case-by-case" MACT continues to rise to the surface. If you work within the air quality permitting arena, you have observed the abrupt change within the U.S. EPA under the Obama Administration. The U.S. EPA clearly has a renewed vigor with respect to enforcement of the federal air regulations. While almost everyone has struggled with understanding the implementation of 112j since the Boiler MACT rule was vacated, it is clear that a growing number of key individuals will argue that the deadlines for both the Part 1 and the Part 2 applications required under the implementing regulations for case-by-case MACT (40 CFR Part 63, Subpart B) have long passed. In fact just last week, at least one state sent out MACT hammer letters, with Part 1 and Part 2 application deadlines. If your facility hasn’t submitted these applications and even if your state agency hasn’t required them, you need to look hard at the 112j requirements and be prepared to address them or to defend your stance. While Part 1 applications require minimal effort, Part 2 applications may be quite time consuming and require additional resources.
ALL4 is an environmental consulting firm that specializes in air quality. We assist our clients with air quality permitting; air quality compliance; air dispersion modeling; ambient, meteorological, and continuous monitoring; environmental program management; environmental regulatory analysis and climate change. Our clients industries are diverse; from power, cement, refining and pulp & paper manufacturing to chemical, pharmaceuticals, food manufacturing, etc. Our clients are located in over 30 states and as diverse as their industries are, so is their size. We work with small single site operations to F500 multinationals with numerous facilities throughout the country. For more information on ALL4 or to sign up to receive ALL4's e-newsletter, 4 The Record, visit our website at http://www.all4inc.com.
For specific questions on this ICR, designing an appropriate test program, Boiler MACT or CISWI, please contact ALL4's John Egan or Eric Swisher at 610-933-5246 x 14 or 17, respectively or jegan@all4inc.com or eswisher@all4inc.com.
