HMIWI Final NSPS/EG: SSM Exemption Removed, Perceived MACT-on- MACT/Pollutant-by-Pollutant Approach

We posed the question in the March 2009 issue of 4 The Record as to why a rule about hospital, medical, and infectious waste incineration would get the attention of the American Forest & Paper Association (AF&PA), the American Chemistry Council (ACC), the Alliance of Automobile Manufacturers (AAM), the Cement Kiln Recycling Coalition (CKRC), the Brick Industry Association (BIA), the Utility Air Regulatory Group (UARG), the Portland Cement Association (PCA), and the Council of Industrial Boiler Owners (CIBO), among others? 

The Clean Air Act (CAA) Section 129 hospital, medical, and infectious waste incinerator (HMIWI) maximum achievable control technology (MACT) rules proposed in December 2008 included both a response to a court-ordered remand and a five-year review. There were a number of substantial objections to the proposed rules, which are viewed by the industry as being unachievable. However, the common objection amongst the various comments was the underlying argument that U.S. EPA used a “MACT-on-MACT” methodology for establishing the proposed new emission limitations for both new and existing HMIWI.

Commenters also believed that U.S. EPA selectively established MACT floors for each of the nine (9) regulated pollutants individually on a pollutant-by-pollutant basis using the best-performing units for each pollutant.  By establishing new individual MACT floors for each of the nine pollutants, U.S. EPA essentially created limitations that only a theoretical unit with the best control for each pollutant could meet.

On September 15, 2009, U.S. EPA signed the final HMIWI New Source Performance Standards (NSPS) and Emission Guidelines (EG) (published in the Federal Register on October 6, 2009).  The perceived MACT-on-MACT methodology was maintained and  U.S. EPA indicated that they believed that  their approach was not MACT-on-MACT.  Additionally, U.S. EPA maintained their pollutant-by-pollutant approach.  So what did U.S. EPA change?

  • U.S. EPA removed the Startup, Shutdown, and Malfunction (SSM) provisions from the rule.  Yes, you read that right.  For those following the SSM vacatur, you’re aware of the partial vacatur of portions of the General Provisions of 40 CFR Part 63 (i.e., Subpart A) for the CAA Section 112 MACT standards and that U.S. EPA is currently working through “what this means” for those affected under Subpart A of 40 CFR Part 63.  U.S. EPA currently has a 60-day stay on the mandate of vacatur. Needless to say, we were quite surprised that U.S. EPA took the next step and applied the CAA Section 112 SSM concerns and removed the SSM provisions  from the CAA Section 129 rule without final consideration of the vacatur on the CAA Section 112 standards.
  • U.S. EPA reconsidered their statistical approach to defining emission standards and made some changes.  Their changes resulted in final emission limits that are more stringent than the 2007 proposed emissions limits but less stringent than the 2008 proposed emission limits.  For those interested, U.S. EPA utilized a 99% upper confidence interval, considered data distribution (i.e., normal or log-normal), and utilized the student t-test.
  • U.S. EPA strengthened the Waste Management Plan requirements, specifically for commercial units.

Our opinion is that the potential implications of the rule and U.S. EPA’s approach to establishing MACT standards will be manifested in future regulatory developments that could impact the facilities behind the various industry organizations that commented on the proposed rule.  While these are the major highlights of the final rule, U.S. EPA did make other changes.

U.S. EPA Finalizes Flexible Permit Rule (Again)

On October 6, 2009, U.S. EPA finalized a flexible permitting rule that was initially proposed on September 12, 2007 (see our February 2008 4 The Record article for an analysis of the proposed rule).  The rule was previously finalized on January 13, 2009, but was subsequently reviewed by U.S. EPA in response to the memo on regulatory review issued by the White House on January 20, 2009 (see our February 2009 4 The Record article for an analysis of the final rule).  The rule revises the Title V regulations to allow for the development of flexible air permits (FAPs).  It should be noted that by U.S. EPA’s own assertion, the final rule is a reaffirmation of “existing regulatory provisions that currently afford reasonable opportunities for operational flexibility…”  In other words, there is really nothing new in the final rule.  On the bright side, U.S. EPA reiterates its support for FAPs and describes how FAPs can currently be obtained under existing individual State Implementation Plans (SIPs).  The flexibility provisions provided in the rule and described in its preamble have been tested and evaluated for over a decade through a pilot flexible air permitting program and have been previously described in U.S. EPA White Paper No. 3.

The final flexible permit rule retains the alternative operating scenario (AOS) and approved replicable methodology (ARM) provisions described in the proposed rule.  The now-defined AOS term will replace the term “operating scenario” in the Title V rules.  ARMs are envisioned to facilitate the implementation of advanced approvals and AOS under a Title V permit and to reduce the need for permit modifications consistent with the Title V regulations.  The originally proposed “Green Group” concept has been excluded from the final rule. Click here to read the final rule. 

The Green Group revisions that were included in the proposed flexible permitting rule were arguably the revisions with the most potential to provide operating flexibility to sources.  The flexible permitting policy discussions included in the preamble to the rule are consistent with the discussion in the proposed rule and affirm U.S. EPA’s support of advanced approvals and other flexible permit concepts that can be supported by SIPs.

The flexible permit rule builds upon U.S. EPA’s experience with flexible permits and the plantwide applicability limit (PAL) rules promulgated in December 2002. They also confirm U.S. EPA’s support of permitting flexibility mechanisms. The flexible permit rule provides several implementing tools that can facilitate flexible permit terms and conditions in accordance with existing U.S. EPA guidance. However, facilities that desire a flexible operating permit will likely need to continue to rely on existing regulatory programs (i.e., PALs), related U.S. EPA guidance (i.e., White Paper 3), past flexible permit precedence, and actual negotiation of flexible permit terms and conditions with permitting authorities where supported by SIPs.

U.S. EPA’s Final PM2.5 Designations

U.S. EPA has promulgated the final nonattainment area designations for the 24-hour National Ambient Air Quality Standard (NAAQS) for particulate matter with an aerodynamic diameter of less than 2.5 microns (PM2.5).  PM2.5 is a regulated air pollutant with annual and 24-hour NAAQS that were originally set at 15 and 65 micrograms per cubic meter (µg/m3), respectively, in 1997.  In September 2006, U.S. EPA promulgated a more stringent 24-hour NAAQS of 35 µg/m3.  In response to the more stringent 24-hour standards, states were required to establish revised PM2.5 nonattainment area boundaries.  After receiving nonattainment area recommendations from the states, U.S. EPA issued final nonattainment area recommendations on December 22, 2008 that resulted in 215 nonattainment counties.  However, these recommendations were never published in the Federal Register and therefore never finalized, resulting in a renewed U.S. EPA review of the nonattainment designations under the new U.S. EPA administration.   The updated review resulted in only 120 counties found to be nonattainment with the 24-hour NAAQS.  A summary of the final 24-hour nonattainment areas can be found here.

These 24-hour designations do not have an impact on the existing annual PM2.5 NAAQS or the annual nonattainment designations.  The November issue of 4 The Record will provide a detailed summary of the practical implications of the existing annual NAAQS and its relationship with the latest 24-hour designations.

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