Pennsylvania Mercury Rule Struck Down – Or Is It?

On January 30, 2009, Commonwealth Court Judge Dan Pellegrini ruled that Pennsylvania’s regulations limiting mercury air emissions from coal-fired Electric Generating Units (EGUs) were unlawful, invalid, and unenforceable.  The primary basis for the ruling was the District of Columbia Circuit Court’s decision that U.S. EPA had improperly delisted EGUs from the Clean Air Act (CAA) Section 112 list of source categories that are subject to Maximum Achievable Control Technology (MACT) standards.  In the judge’s opinion, since EGUs were technically still regulated under Section 112, Pennsylvania had not properly promulgated its regulations.  

This decision is not a final action (pending appeal) and Pennsylvania has 30 days to respond to the decision.  The State could have sought a settlement of the case or could have requested a review of the decision by the full 3-judge panel of the Commonwealth Court.  However, on February 6, 2009, the State chose to appeal the Commonwealth Court’s decision to the Pennsylvania Supreme Court.  Considering the complexity of the inter-relationship between the Federal CAA and the State Air Pollution Control Act, the State Supreme Court may be a better venue for the Commonwealth’s arguments for the need to act in the absence of Federal rules. 

Now that the State has filed an appeal, it is up to the State Supreme Court to decide if it should hear the appeal.  If the State Supreme Court agrees to hear the appeal, this agreement will act as an automatic stay of the Commonwealth Court decision to vacate Pennsylvania’s mercury regulations.  This means that any company affected by the Pennsylvania mercury regulations should continue taking actions to be in compliance with the mercury regulations.  Stay tuned for updates.

Northeastern New Jersey Nonattainment Penalty Fees for Ozone

Facilities located in the northeastern counties of New Jersey, including Bergen, Essex, Hudson, Hunterdon, Middlesex, Monmouth, Morris, Ocean, Passaic, Somerset, Sussex, and Union will be affected by U.S. EPA’s Section 185 nonattainment penalty fees due to the region not meeting the 1-hour ozone National Ambient Air Quality Standard (NAAQS) by the attainment date in 2007.  Currently, U.S. EPA staff is developing guidance that may provide flexibility on how these fees are paid.

However, facilities in these counties should now calculate the facility baseline emissions for VOC and NOX and compare the baseline to the facility’s current emissions, as the fee will be assessed based on recent emissions and the baseline information.  Typically the baseline emissions are those recorded by the states in the attainment year, but U.S. EPA has also provided guidance for alternative methods for calculating the baseline emissions.  The nonattainment penalty fees are paid on VOC and NOX emissions in excess of 80 percent of the baseline at a rate of $5,000 per ton, which is based upon the 1990 fee set in the Clean Air Act and adjusted for inflation according to the Consumer Price Index.  This would result in a 2008 penalty fee of $7,951 per ton.  Keep in mind that the nonattainment penalty fees will be in effect until the region meets the 1-hour ozone NAAQS. 

This issue was discussed at the February 9, 2009 New Jersey Industrial Stakeholder Meeting. The New Jersey Department of the Environment (NJDEP) understands the nature of this issue and is working with U.S. EPA to understand the requirements and flexibility regarding the nonattainment penalty fees and expects to issue a guidance memorandum regarding how New Jersey will collect the penalty fee.

U.S. EPA Proposes Hazardous Air Pollutant Standards for Foundries

On February 9, 2009, U.S. EPA issued a proposed rule that would establish National Emission Standards for Hazardous Air Pollutants (NESHAPs) for aluminum, copper, and other nonferrous foundry area sources.  The proposed standards would apply to all new and existing foundries that pour molten aluminum, copper, and other nonferrous metals into molds to manufacture metal castings (except die castings).  U.S. EPA considers these foundries to be area sources of hazardous air pollutants (HAPs) because they can emit beryllium, cadmium, chromium, lead compounds, manganese, and nickel.  Most of the foundries that would be required to meet the proposed standards are small businesses, with about 70 percent employing less than 50 people.

If the proposed NESHAP for aluminum, copper, and other nonferrous area sources becomes a final rule, all affected facilities would be required to adhere to management practices such as: (1) covering or enclosing melting furnaces that are equipped with covers during the melting process except when access is needed for charging, alloying, or tapping; and (2) limiting the material charged into melting furnaces to scrap that has had HAP metals removed, except for metals that need to be added to the alloy.  Facilities would be required to develop and operate by a written management plan that describes how these management practices are implemented, and would have to keep detailed records to document compliance with their plan.  In addition, any existing copper or other nonferrous foundry that melts 6,000 tons per year (tpy) or more of metal would have to meet a particulate matter (PM) control efficiency of at least 95 percent and an outlet PM concentration of 0.015 grains per dry standard cubic feet (gr/dscf).  A new copper or other nonferrous foundry that melts 6,000 tpy or more of metal would have to meet a particulate matter (PM) control efficiency of at least 99 percent and an outlet PM concentration of 0.010 gr/dscf.

Other compliance requirements of the proposed rule include initial emissions performance testing by foundries subject to PM limits, daily observation and recording of visible emissions from fabric filters used to meet the standards or use of leak detection systems on the filters, and keeping records of  scrap purchases and quantity of metal melted.  The proposed NESHAP for aluminum, copper, and other nonferrous area sources has the potential to significantly impact a wide range of facilities, some of which may only have a few employees.  The public, including foundries that would be affected, can submit comments on the proposed rule until March 11, 2009.

New Source Review Rule Update

In September 2006, U.S. EPA proposed three (3) separate revisions to the Federal New Source Review (NSR) air permitting rules.  The proposed revisions were intended to address and clarify some of the more detailed aspects of implementing the major NSR program.  The proposed changes addressed:

  • Debottlenecking – the undefined concept of accounting for emissions changes at emission units upstream and downstream of a new or modified emissions unit.
  • Project Netting – the ability to include emissions decreases that occur as part of a project in the first step of the NSR applicability determination.
  • Aggregation – the procedure for combining emissions increases from separate but related projects when determining NSR applicability.

 On January 12, 2009, U.S. EPA took final action related to the three (3) proposals.  First, in response to comments received on the 2006 notice, it withdrew the proposed debottlenecking rule changes.  Any clarity that the regulated community had hoped for on this lingering NSR issue is gone.  With regard to project netting, U.S. EPA announced that they would not be taking any action at this time. However, U.S. EPA is still considering the proposal.  They were careful to note that any statements made in the 2006 notice about project netting do not change U.S. EPA’s interpretation of the current rules.  This is not helpful since the regulatory language of the actual rule can be interpreted (and is interpreted by several state regulatory authorities) to allow project netting.  The good news is that the proposal was not withdrawn, so there is still hope.

The bulk of the recent action centered on the aggregation issue.  Simply put, U.S. EPA’s position on aggregation as stated in the January 12, 2009 notice is that “multiple nominally-separate activities that are sufficiently interrelated should be grouped together and considered a single project for the purpose of Step 1 in the NSR applicability test.”  This basic position has evolved over time as U.S. EPA policy.  In the 2006 proposal, U.S. EPA proposed regulatory changes that were intended to codify this policy.  Specifically, the definition of the term “project” was expanded to require that multiple projects that are dependent on each other to be economically or technically viable must be considered as a single project.  In this recent action, U.S. EPA withdrew the proposed rule changes and instead clarified the existing policy in the language of the notice. 

One item of note with respect to the U.S. EPA’s position on aggregation is explained in the January 2009 notice.  They stated that they “believe that if a previous physical or operational change has operated for a period of three or more years, permitting authorities may presume that the newly constructed change is not substantially related to the earlier change.”  They then went on to state that this is a rebuttable presumption paving the way for decisions to the contrary if an agency deems it appropriate.  They avoided specifying that projects occurring with that same time frame, or a lesser one, were presumed to be interrelated. 

The bottom line is that when evaluating NSR applicability to proposed projects at your facility, debottlenecked units will still need to be considered.  In addition, U.S. EPA’s position regarding “project netting” has not changed (i.e., emissions decreases that result from your project can only be included in the Step 2 netting analysis).  Finally, when your facility is planning multiple projects you must consider U.S. EPA’s position on aggregation.  Are the projects technically or economically dependent?  Is one project viable without the other?  You will want to know the answers before you do the permitting, not when you receive a Section 114 letter from U.S. EPA.  

One final note as we go to press: on February 9, 2009, U.S. EPA announced that the Agency’s final action on aggregation discussed above was being stayed until May 18, 2009.  This was done in response to the memo on regulatory review issued by the White House on January 20, 2009.  The stay will allow the new administration more time for review and reconsideration of comments previously received regarding the rule. 

U.S. EPA Amends New Source Performance Standards for Steam Generating Units

On January 28, 2009, U.S. EPA issued a final rule amending the Standards of Performance for New Stationary Sources (NSPS) for electric utility steam generating units and industrial-commercial-institutional steam generating units.  In this action U.S. EPA amended subparts D, Da, Db, and Dc of 40 CFR Part 60 to add compliance alternatives for owners and operators of certain affected units, to eliminate the opacity standard for certain facilities voluntarily using particulate matter (PM) continuous emission monitors (CEMS), and to correct technical and editorial errors.  The final rule became effective on January 28, 2009.

The amended final rule includes an alternate sulfur dioxide (SO2) limit during SO2 control system maintenance and allows for parametric monitoring of nitrogen oxide (NOX) emissions for coke oven gas-fired steam generating units.  In addition, the new rule specifies the opacity monitoring requirements for all affected facilities that are subject to opacity limits.  The opacity standard and all opacity monitoring requirements have been eliminated for units that choose to install and operate a PM CEMS to demonstrate continuous compliance and are complying with a PM limit of 0.030 lb/MMBtu or less.  Facilities that elect to install PM CEMS will be required to perform condensable PM testing and report results to U.S. EPA.  The condensable PM testing and reporting requirements of the final rule do not become effective until after July 1, 2010, when U.S. EPA anticipates its proposed method for measuring condensable PM (Method 202) will be finalized and when U.S. EPA’s WebFIRE Electronic Reporting Tool becomes fully operational. 

    4 THE RECORD EMAIL SUBSCRIPTIONS

    Sign up to receive 4 THE RECORD articles here. You'll get timely articles on current environmental, health, and safety regulatory topics as well as updates on webinars and training events.
    First Name: *
    Last Name: *
    Location: *
    Email: *

    Skip to content