The Difficulties With Attaining Compliance With Environmental Regulations – An Ode to the Environmental Compliance Manager

If you are an environmental compliance manager today with college age children you are probably encouraging them to become dentists or orthodontists, and not to follow in your footsteps as an environmental compliance manager.  Arguably one of the toughest positions today is being responsible for managing environmental compliance at an industrial facility.  The primary element to managing the constantly expanding litany of environmental regulatory requirements is to be sure you have identified all of them.  Only then you can set about the task of planning.

I am primarily addressing the difficulties of dealing with environmental compliance with today’s air quality rules and regulations, because that is what I have done for the past 40 plus years.  However, most environmental compliance managers do not have the luxury of only working on a single medium (e.g., air, or water, or waste).  They wear multiple hats and may even have direct health and safety responsibilities to boot.

First if your facility burns coal in any way shape or form, you are either scrambling to figure out what your control strategies need to be to comply with new air quality regulations, or you are looking for alternative employment.  If you are an environmental compliance manager at a coal-fired utility, the hot topic of discussion used to be worrying about whether it would be the Clear Air Interstate Rule (CAIR) or the Cross State Air Pollution Rule (CSAPR) or yet a third variant of the CAIR/CSAPR acronym that might shutdown your units.  Not anymore, now it’s how are you possibly going to comply with the Mercury Air Toxics Standards (MATS) rule.  Even oil-fired utilities get in on the significant challenges of the MATS rule. On top of all of that, U.S. EPA has revised and strengthened the National Ambient Air Quality Standards (NAAQS) for both nitrogen dioxide (NO2) and sulfur dioxide (SO2) which will, in all likelihood, prohibit major modifications at utility units. Combine all of this with major vacillations in fuels pricing with unconventional natural gas development, electric rate-deregulation in some areas of the country, and unprecedented numbers of facilities shutting down; we have major uncertainty for an entire industry that has been a pillar for the U.S. economy.

For environmental compliance managers at industrial sites, small and large, there are two new rules that are getting your attention which were promulgated under the Maximum Achievable Control Technology (MACT) standards for emitters of hazardous air pollutants (HAPs).  Section 112(c) of the Clean Air Act (CAA) requires the U.S. EPA to publish a list of industry group (major source and area source) categories and subcategories that employ, manufacture, or emit HAPs.  The 1990 CAA Amendments added provisions that require the U.S. EPA to promulgate technology-based emission standards and allow for the possible supplementation of health based standards.  Prior to the1990 CAA Amendments, the regulatory standards for the HAP sources were health based standards.  Fine you say, but my company is not a major emitter of HAPs so I don’t have much to be concerned with.  Well, no matter how small your combustion source is, it does produce some level of HAP emissions.  Enter the U.S. EPA Boiler MACT and the Reciprocating Internal Combustion Engine (RICE) MACT rules that have applicable requirements that even apply to non-major HAP (area source) facilities.  Even if the specific emission standards are not difficult for compliance for your particular emission units, these rules come with a plethora of notifications, work practices, recordkeeping, and reporting requirements that are poised to possibly trigger deviations and even exceedances and violations.  Failure to follow work practices, testing, monitoring, recording the necessary information within certain timeframes, and filing the proper notices and reports on time are the leading cause of non-compliance violations, not violations for exceeding emission standards.

Unless you don’t have any engines outside of mobile sources and your boilers are very small and only burn natural gas, you now have something to worry about.  And not tomorrow, as today is too late in many instances.  The first worry is with determining which provisions apply to which of my boilers and engines.  There are decision tree charts and computer programs that have been written just to help you decide what applies to your facility because the rules are so complicated.  Companies are only now realizing that they have engines they never knew about that may need runtime meters installed.  In a similar vein, companies are scrambling to develop written maintenance protocols or are searching for manufacturers recommendations that may or may not exist to support maintenance related documentation requirements. Even if you know that the required maintenance has been performed, if you cannot prove when it was performed and that the work meets the rule or maintenance plan for the source, guess what – your facility is now in non-compliance.

The RICE rules and Area Source Boiler MACT rules know no bound for facility size or emission level.  Your MACT requirements are specific to the engine and boiler types at your facility, not the size of your facility.  The Boiler MACT rules even apply to school districts, universities, hospitals, small businesses, and many companies that currently do not even have air quality operating permits.  Just figuring out if your RICE’s compliance date is June 17, 2007; May 3, 2013; or October 19, 2013 can be very complicated depending upon your facility’s major source status and the engine specifications.  I know for a fact that there is a very large population of facilities that have no idea that they are already non-compliant with certain MACT requirements and will soon be in violation with other provisions.  Just take a walk around your facility and ask your maintenance staff to show you all of the engines that they use for welding, pumping fluids, and emergency electric generation.

Don’t forget the portable units.  I do not know of any environmental compliance manager that has not found previously unknown engines for which they had no record.  And if you think just because those engines are portable that they qualify as non-road engines not subject to the RICE MACT, think again.  If you cannot prove that the use(s) of your nonroad engines requires that they must be portable and that you have used them in different locations within the last 12 months, they are no longer classified as nonroad engines under the RICE rule.  If they are no longer nonroad engines, they should be reflected in your operating permit, as applicable, as a stationary engine and as such are now subject to “new” requirements such as the RICE rules.  If you don’t think that the U.S. EPA is enforcing this interpretation, just look at the U.S. EPA Applicability Determination Index (http://cfpub.epa.gov/adi/) of decisions.  And if you ask the U.S. EPA if you can rely upon one of their “favorable” decisions for your company, you will be told that you cannot.  The only way to really be certain that the engines at your facility that your company had originally purchased as nonroad engines, are still in fact qualified as nonroad engines, is to get your very own Applicability Determination from the U.S. EPA.

While there are many complicated Standards of Performance for New Stationary Sources (NSPS) and MACT rules for certain source categories, I know of no other rules like the RICE and Boiler MACT rules that are as complicated for such a large population of companies as these (except maybe Subpart OOOO, the NSPS for oil and gas operations).  Environmental compliance managers like, and need to have, all of their source compliance requirements nailed down and their emission sources on defined compliance plans.  The totality of all compliance requirements for the RICE and Boiler MACT rules almost guarantees your facility’s compliance will not be 100%.

Is the bad news over yet?  Just when you were about to relax in your lounge chair and take off your hats, news that the designations for nonattainment areas for the most recently issued NAAQS, especially for SO2 and NO2, are happening right now.  Is your facility location possibly already designated or about to be designated as nonattainment with a NAAQS?  Not only are the new SO2 and NO2 NAAQS one hour emission standards very tight standards for which the ambient background is a large percentage of the NAAQS, but the U.S. EPA originally planned to implement them, even for existing facilities, using conservative air quality computer modeling.  Previously this type of conservative air quality assessment was only used for proposed new emission sources or major modifications under Major Source Prevention of Deterioration (PSD) permitting rules.

Initially, the U.S. EPA said that they fully intended to use complex and conservative computer modeling of source emissions to determine the attainment status of all areas in the U.S.  Then they back-tracked, as that was turning out to be too complicated for the state agencies (who actually must implement these new NAAQS standards) or maybe they have just deferred the modeling approach for the moment.  And if your area is designated by actual measured ambient air quality monitoring as nonattainment, even though the monitor of record might not be near your plant, you can be sure that computer modeling will be involved in deciding what emission reductions you need to make to bring the area back into attainment.  Combine this with added assurances that the area will remain in attainment for at least the next 10 years while considering future emissions from all sorts of sources such as automobiles.  Environmental compliance managers need to be ahead of the curve on how the state and the U.S. EPA are deciding if your facility location will be designated as attainment or nonattainment with each of the NAAQS.  Don’t forget ozone and particulate matter less than 2.5 micron in size (PM2.5).  These pollutants are already troublesome for some companies to permit new sources and will likely be even more troublesome as the newer, lower NAAQS for these pollutants are implemented.

All of these new rules result in more air quality permitting to install either new complying emission units or installing control equipment on existing emission units.  And even if you are required to install controls (ANY physical change or change in the method of operation), you still need to get air quality permits and possibly go through complicated New Source Review (NSR) permitting and offset the “calculated” emission increases as a result of being required to install controls.  This doesn’t quite seem fair.  Also with the economy being very challenging for industry, many plants are initiating changes to become more efficient, to adapt more quickly to changing product demand and price-points, and even installing their own electric generation capability to counter the uncertainty of regulations and the more frequent loss of electric supply for various economic and weather related reasons.  All this adds up to more air quality permitting, more complicated air quality permitting, and lots more regulatory requirements.

The last few years have had unprecedented activity in new air quality rules and regulations; more than in any similar time period going back to the origin of the Clean Air Act.  For environmental compliance managers there are also multiple new water and waste regulations to worry about.  It is indeed a very complicated task to coordinate operational changes needed at your facility with the new regulatory changes, which makes planning not something you should do, but something you absolutely must do.  My hat is off to environmental compliance managers everywhere who are doing a very important and complicated, but often unappreciated job.