GHG Reporting Rule Data Now Available to the Public

On January 11, 2012 U.S. EPA released to the public its greenhouse gas (GHG) reporting program data publication tool.  The web-based data publication tool provides access to 2010 GHG emission inventory data reported last year for the first time by over 6,700 facilities.  The reported data is presented from what U.S. EPA categorizes as the largest emitters of GHG, which represent facilities that emit more than 25,000 metric tons of carbon dioxide equivalent (CO₂e) per year.  The facility-level 2010 GHG emission data, available at http://ghgdata.epa.gov/ghgp/main.do, is searchable in a variety of ways, including by:

• Geographic region, state, and local community.
• Facility and industry type.
• Fuel type and GHG gas emitted.
• Individual facility name.

On a conference call to demonstrate the database, U.S. EPA Assistant Administrator Gina McCarthy noted that the available data represents approximately 80% of the total GHGs emitted in 2010, and after the next round of reporting that begins next month when some new industry sectors will report for the first time, the database should reflect 85% or more of the country’s total annual GHG emissions.  McCarthy also expressed U.S. EPA’s hope that the availability of this data will be a catalyst for GHG emission reductions, suggesting that the public, businesses, and even the investment community could use it to make comparisons and decisions that will encourage voluntary GHG reductions that will be in addition to any that result from coming U.S. EPA rules.

The website provides the user the ability to publicly distribute the data views that are generated over social media outlets such as Twitter and Facebook.  There is also the ability to download the data in a spreadsheet that will allow users to sort, analyze, and manipulate it on their own.  Several reporters allowed to ask questions during the introductory conference call were anxious to learn how the data could be used to identify facilities that are in violation of allowable emission limits.  Since there are currently no annual GHG tonnage limits in U.S. EPA rules or permits, the database will not provide an opportunity for such an evaluation, unless comparable limits expressed in CO₂e are promulgated in rules and written into permits.

ALL4’s: Is That Your Final Answer?

Last Month’s Answer and Winner:

On December 22, 2011 the final entrant in our 12 month “Is That Your Final Answer” series was determined.  Mark McGuffey correctly saw that the use of a proportional font in a U.S. EPA publically released document resulted in “corn busting” being regulated instead of ”combusting.”  So with our twelfth contestant identified and with the entire ALL4 staff witnessing (including our Columbus, GA staff via webcam), we held our drawing for the winner of a $500 gift card.  ALL4’s Lindsey Kroos, EnviroReview Project Manager, randomly selected the winning ticket of Darius Rogers – congratulations!

Question:

So with our 2011 duties completed we move on to our 2012 obligations and resolutions.  It seems like every year we resolve to read more.  But whether it is a fear of big words, too few pictures, or just finding an interesting book, we always seem to fall short of our goal.  Well this year we are starting with 1493 by Charles Mann, which describes the travels of Columbus and how the successive trips changed the ecological landscape of the Americas.  Traveling by ship got us thinking about how far towards the horizon someone could see.  We discovered that it really is not that far.  And thus here is our January 2012 “Is That Your Final Answer” question; on a clear day how far (in miles) would a sailor perched 25 ft up in the crow’s nest perceive the horizon to be? 

Answer: 

Please e-mail your answer to final.answer@all4inc.com.  Include in the e-mail your name, answer, and address (to receive your prize).

The final answer feature of 4 The Record is designed to test your knowledge across the environmental field, quiz you on the building blocks of air quality rules, stump you on ALL4 general trivia, and challenge you with brain teasers that have perplexed us.  The first correct answer e-mailed to us will qualify the respondent for free ALL4 gear and will enter the winner in our end-of-the year “Final Answer Championship.”  The subsequent month’s 4 The Record will identify the winner and the correct answer from the previous month’s question.  You must be an active subscriber of 4 The Record to win a monthly prize and be eligible for the championship prize.  ALL4 employees and family members are not eligible to compete.  Hope you enjoy this feature and good luck!

SO2 NAAQS Implementation Update

U.S. EPA is continuing to move forward with the sulfur dioxide (SO2) National Ambient Air Quality Standards (NAAQS) Implementation process. U.S. EPA released their “Guidance for 1-Hour SO2 NAAQS SIP Submissions” draft document on September 22, 2011. The public comment period, which was initially set to close on November 2, 2011, was extended by a month until December 2, 2011. U.S. EPA has not yet released a final version of the guidance document. As we summarized in ALL4’s October “NAAQS Happenings” article and September “What’s Going on With the 1-Hour SO2 NAAQS Implementation Process” article, most states are waiting for U.S. EPA to finalize the guidance document before they move forward with the implementation process. However, note that several states, including Maine, Michigan, and Alabama, are being more proactive and have at least begun the process of requesting information from stationary sources that will be needed to conduct the modeling.

In other modeling related news, U.S. EPA’s Air Quality Modeling Group (AQMG) released a new version of the AERMOD air dispersion model on December 21, 2011. The updated version (11353) addressed a minor “bug” associated with updates to the previous version (11059) that incorporated options for modeling the new 1-hour nitrogen dioxide (NO2) and SO2 NAAQS. This new version of AERMOD (11353) will be used for all SO2 NAAQS SIP Implementation modeling.

MACT SSM Exemption is Vacated

What happened?

On December 19, 2008, the U.S. Court of Appeals for the D.C. Circuit (Court) issued a decision vacating the Startup, Shutdown, and Malfunction (SSM) exemption provisions of the Federal National Emission Standards for Hazardous Air Pollutants (NESHAP) for Source Categories.  These NESHAP regulations require the use of Maximum Achievable Control Technology (MACT) for minimizing hazardous air pollutant (HAP) emissions from regulated sources. The rules, including the SSM exemption provisions, are codified at 40 CFR Part 63 and were originally adopted by U.S. EPA in 1994.

The SSM exemption provisions included in the MACT rules were based on U.S. EPA’s consideration of a source’s “general duty” to minimize emissions during SSM events.  The general duty provision was previously established under the Standards of Performance for New Stationary Sources (NSPS) rules.  In vacating the exemption, the Court decided that the general duty to minimize emissions during an SSM event is inconsistent with Section 112 of the Clean Air Act (CAA) because the CAA requires that a Section 112 standard must apply continuously.

How does the SSM exemption work?

The SSM exemption provisions give sources that are subject to a MACT standard a conditional exemption from continuous compliance with the applicable emission standard during SSM events.  In order to utilize the exemption, sources are required to comply with the general duty to reduce emissions to the greatest extent possible consistent with safety and good air pollution control practices during an SSM event.

To satisfy the SSM exemption provisions, sources developed SSM plans that detailed possible SSM events, included procedures that would be followed to minimize emissions during such events, identified corrective measures for addressing malfunctions, and summarized the recordkeeping and reporting procedures that the sources would use to document compliance with the exemption provisions.  Sources that are subject to the SSM provisions are required to submit semi-annual reports of SSM events to permitting authorities.

What did the Court say?

The Court decision is relatively brief and can be viewed here.  Although the SSM provisions were not initially challenged by environmental groups when the rule was issued in 1994, the Court held that the changes that U.S. EPA made to the original rule in recent years effectively opened it to challenge.  The Court concluded that “the SSM exemption violates the CAA’s requirement that some Section 112 standards apply continuously” to affected sources and that “the general duty is not a Section 112-compliant standard.”

What is the immediate affect of the vacatur?

It is mid-January now and many facilities that are subject to MACT rules are in the process of preparing their semi-annual reports, including SSM reports.  As sources prepare these reports, a recurring question is how the Court’s decision to vacate the SSM exemption affects the recently ended reporting period.  For example: Is it necessary now to report exceedances during all events, including those where the SSM plan was followed, in my current report?  The answer is that the vacatur is not immediately effective and does not take effect until the date that the Court issues its mandate.

There is a minimum 45-day period beginning on the date the Court issued its decision (i.e., December 19, 2008) during which U.S. EPA or an intervenor can file for a rehearing.  If a rehearing is granted, the mandate can be stayed for an even longer period.  It is likely that U.S. EPA will request an extension to afford the new Administration time to get up to speed on the matter.  Therefore, for now it appears to make the most sense for sources to prepare any current SSM reports consistent with previous submittals.  Then it’s time to sit back and watch how this one will play out because if and when it does take effect, any exceedance of a MACT standard will be a violation, including those that occur during SSM events.

U.S. EPA’s Final Flexible Permit Rule

Introduction

On January 13, 2009, U.S. EPA finalized a flexible permitting rule that was initially proposed on September 12, 2007.  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 (SIP). Please note that this rule is currently being reviewed by U.S. EPA in response to the memo on regulatory review issued by the White House on January 20, 2009.  As a result, the effective date may be extended for 60 days and the notice-and-comment period reopened for 30 days to allow interested parties to provide comments on the rule.  U.S. EPA will then evaluate any comments received and will consider whether further amendment of the final rule is necessary.

What is a Flexible Air Permit?

In U.S. EPA’s own words, a FAP is a Title V permit that facilitates flexible, market responsive operations at a source through the use of one or more permitting approaches, while ensuring equal or greater environmental protection as achieved by conventional permits.  The flexibility provisions included in the final rule include Alternative Operating Scenarios (AOS) and Approved Replicable Methodologies (ARM). A key flexibility provision that is not included in the rule but is discussed in the preamble to the rule is the advanced approval of minor New Source Review (advanced approvals).  Each of these terms are discussed further below.

In plain language, a flexible permit generally means that the permitted facility is authorized to initiate modifications without the need to prepare, submit, and obtain permitting authority approval for the modifications, albeit within the “bounds” of the flexible permit. Such bounds include the flexible permitting concepts that are discussed and included in the flexible permit rulemaking. There are many examples of FAPs in practice including the permits that were the subject of a U.S. EPA Flexible Permit Pilot Program.  The results of the pilot program are presented in a report titled “Evaluation of the Implementation Experience with Innovative Air Permits”.  Other flexibility concepts are based on existing U.S. EPA guidance documents such as U.S. EPA’s White Paper No. 3 which became available in 2000.

How Does the Final Rule Differ from the Proposed Rule?

In the final rule, U.S. EPA decided not to develop a FAP rule with prescriptive approaches towards operational flexibility since the prescriptive route might prove counter-productive (i.e., in defining operational flexibility, U.S. EPA might actually constrain it).  The actual regulatory changes are somewhat minor and include revisions to the definitions and terms for use of AOSs and ARMs.  The most substantial change between the proposed rule and the final rule is the exclusion of the “green group” provisions from the final rule.  The green group provisions were originally proposed as changes under 40 CFR Parts 51 and 52 and were arguably the provisions in the rule that provided the most flexibility to facilities.  In the proposed rule, a green group was defined as “a group of new or existing emissions activities that is characterized by use of a common, dedicated air pollution control device and that has been designated as a green group by the administrator in a permit issued pursuant to this section (i.e., NSR).”  The green group would have been recognized as a single emissions unit and would have been authorized to include certain changes over the duration of the green group designation (i.e., 10 years).

How is the Final Rule Similar to the Proposed Rule?

The definitions and provisions for the use of AOSs and ARMs are retained in the final rule.  As in the proposed rule, the preamble to the final rule includes a detailed discussion of advanced approvals and how operating permits can be developed that incorporate and allow advanced approved changes.  However, as with the proposed rule, the final rule does not revise any Part 51 requirement to facilitate advanced approvals under minor NSR and allows permitting authorities to decide the merits of granting advanced approval of sources on a case-by-case basis. Inc.

What are Advance Approvals?

Advance approval is a flexibility tool that is available to stationary sources operating under a Title V permit.  Advance approval is typically an authorization for a source to make certain changes or certain categories of changes that would ordinarily require prior approval of the change through minor NSR.  While the final rule does not specifically include language related to advanced approval, the advanced approval concept is discussed in detail in the preamble to the rule and is supported by U.S. EPA.  Without advance approval for minor NSR changes, a permit application must be prepared by the source and be reviewed and approved by the permitting authority before a modification can be made. When using advance approvals, sources must incorporate changes authorized under minor NSR into their operating permits along with conditions that assure compliance with all associated applicable requirements. The changes can then be implemented at a future date under protection of the permit shield without further review or approval by the permitting authority. Several permitting authorities have authorized the use of “generic” advance approvals within a set of boundary conditions or have advance approved certain categories of changes common to a certain source type. These types of advance approvals have proven to be effective flexibility tools where they have been incorporated into Title V permits in combination with emission caps or plantwide applicability limits (PALs).

What are Alternative Operating Scenarios?

The term “alternative operating scenario” (AOS) is proposed to replace the term “operating scenario” as it currently exists in the Part 70 Title V operating permit rules. Both a definition and usage requirements associated with AOSs are proposed. The proposed rule included requirements for facilities to log and report the use of AOSs.  The logging and reporting provisions have been removed in the final rule. It has been ALL4’s experience that opportunities regarding AOSs under Title V would be primarily related to those situations where a change from one allowable operating scenario to another allowable operating scenario for a given emissions unit would result in a change in applicable requirements.  In most instances, Title V permit terms and conditions can be crafted to allow such operational changes without the need for an AOS. However, there may be opportunities for certain facilities to use AOSs to increase operating flexibility. For example, a facility with multiple spray booths, each of which were permitted and installed under minor NSR to paint a specific part with a particular type of coating may wish to use the booths more efficiently (i.e., remove booth-specific part and coating operating limitations).  One or more AOSs could be developed for the booths that allow each booth to be used to coat different parts using different coatings, so long as the regulatory requirements associated with the parts and coatings are recognized, tracked, and compliance is demonstrated.

What are Approved Replicable Methodologies?

The term ARM is being proposed to facilitate the implementation of advanced approvals (described above) and AOSs under a Title V permit and to reduce the need for permit modifications consistent with the Title V regulations. Both a definition and usage requirements associated with ARMs are proposed. The best example of where an ARM could be useful is where parametric values for an air pollution control device are used as a means to demonstrate compliance with an applicable requirement.  In some situations, such parameters are defined directly in a permit term or condition.  If the parameter for the control device changes as a result of a compliance test, then the permit term or condition that specifies the parametric value would need to be formally revised prior to its use.  Under an ARM, the source could specify that parameter measurements recorded during a compliance test can be used to define a new parametric value that assures compliance with the applicable requirement and that the new parametric value replaces the value that was previously used to assure compliance. With an ARM in place, the facility has a defined method to obtain and update information consistent with an applicable requirement while avoiding the need to revise the permit to incorporate the new information.

Conclusions

The final flexible permit rule revisions build upon U.S. EPA’s experience with flexible permits and the PAL rules promulgated in December 2002. They also confirm U.S. EPA’s support of permitting flexibility mechanisms. The proposed revisions provide several implementing tools that can facilitate flexible permit terms and conditions in accordance with existing U.S. EPA guidance. 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 state implementation plans.

HWIMI Rule Revisions Get Attention from Many Industry Groups

You may think that your facility has little in common with Hospital, Medical, and Infectious Waste Incinerators (HMIWIs).   Consider this…is your facility subject to a Maximum Achievable Control Technology (MACT) standard?   If so, you may have more in common with the HMIWI industry than you think!

In December 2008, U.S. EPA proposed revisions to the New Source Performance Standards (NSPS) and Emission Guidelines (EGs) for HMIWI (73 FR 72962), originally promulgated in 1997.  These regulations, established under Section 129 of the Clean Air Act (CAA), serve as the MACT standards for this industry. The comment period for the proposed rules closed on February 17, 2009 and resulted in significant attention from industry, state agencies, environmental organizations, and particularly from other industry organizations and associations.   So why would a rule about hospital, medical, and infectious waste 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 HMIWI MACT rules proposed in December included both a five year review and a response to a court-ordered remand. 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.  So what is MACT-on-MACT?

In establishing the MACT standards for the original 1997 rule (which, by itself eliminated nearly 98% of the HMIWI industry), U.S. EPA was first required by Section 129(a) of the CAA to determine the MACT “floor.”  The floor is the “minimum stringency levels for new and existing [HMIWI], generally based on levels of emissions control achieved or required to be achieved” in practice. Once established, the MACT standard must be reviewed every five years based on circumstances within the previous five years to determine whether additional controls or limitations are necessary.  This review can consider costs and other factors, but does not require U.S. EPA to reset the floor; that is, establish a new floor based on any new data that has become available.  What’s more, if the new data is comprised of post-MACT emission rates (i.e., emission rates achieved after complying with the originally promulgated MACT standard by installing additional controls), resetting the floor in order to establish a new MACT standard would appear to constitute MACT-on-MACT.  While U.S EPA denied using a MACT-on-MACT approach in the preamble to the proposed rule, a close examination of the data and the methodologies that were used by U.S. EPA to address the five year review and, more so, the 1999 remand appear to contradict this position.

U.S. EPA also selectively established floors based on the best-performing units for each of the nine (9) regulated pollutants individually using what appears to be a MACT-on-MACT approach. By establishing new MACT floors for each pollutant, U.S. EPA essentially created limitations that only a theoretical unit with the best control for each pollutant could meet (i.e., a single HMIWI equipped with a wet scrubber for control of HCl and CO as well as a carbon adsorber for control of Pb, Cd, and NOX; a dry scrubber for control of PM, CDD/CDF, and SO2; and a fabric filter for control of Hg).  The concept of establishing a non-existent unit is based on what U.S. EPA believes might be achievable by using a combination of different control strategies rather than what has been “achieved in practice by the best controlled similar unit” for new units or “achieved by the best performing 12 percent of units” for existing units, as required by Section 129.

Why should I care?  If the revisions to the rule are approved as-proposed, the ability for U.S. EPA to use a MACT-on-MACT methodology for establishing new MACT floors on a pollutant-by-pollutant basis for HMIWI could set a precedent for establishing new MACT standards for other industries.  If your facility became subject to emission limits 10, 100, or 500 times more stringent than the standards it is subject to now it would likely get your attention!

A Fine Particulate Series: A Practical Guide to PM2.5

A Fine Particulate Series: PM2.5 Nonattainment – What You Need to Know

In the March 2009 4 The Record article “A Practical Guide to PM2.5,” ALL4’s PM2.5 Team discussed the technical basics of PM2.5 and the specific steps that you can take to assess your position with regard to the challenging regulatory landscape that lies ahead.  This month’s article aims to fill in a few technical details regarding PM2.5 nonattainment areas, including a discussion on PM2.5 attainment designations, emission reduction credit (ERC) requirements, ERC air quality modeling requirements, and timing and cost considerations when planning for nonattainment area projects where PM2.5 emissions may be a factor.

Attainment or Nonattainment: That is the Question

U.S. EPA strengthened the 24-hour PM2.5 National Ambient Air Quality Standard (NAAQS) in September 2006 by lowering it from 65 ug/m3 to 35 ug/m3.  U.S. EPA’s recommendations for attainment designations associated with the revised 24-hour PM2.5 NAAQS were released on December 22, 2008. That action is currently under review in accordance with the “Memorandum for the Executive Departments and Agencies” published in the Federal Register on January 26, 2009.  Therefore, any “new” nonattainment areas created by the revised 24-hour NAAQS are not yet considered nonattainment areas.  However, we expect that counties previously recommended for nonattainment designation by U.S. EPA will continue to be considered as nonattainment areas when U.S. EPA publishes final recommendations in the Federal Register.  In fact, it is likely that the number of nonattainment areas will only increase with upcoming published designations.  For facilities located in an area that is currently classified as being in attainment, future planning should include consideration of whether that county may be reclassified as nonattainment by conferring with local regulatory agencies and U.S. EPA.

Absent from the strengthening of the 24-hour PM2.5 NAAQS was a concurrent reduction in the annual PM2.5 NAAQS.  On February 24, 2009, the U.S. Court of Appeals – D.C. Circuit remanded the annual PM2.5 NAAQS back to U.S. EPA for re-evaluation.  Therefore, the future number of nonattainment areas associated with the annual PM2.5 NAAQS is also likely to increase.  As with the 24-hour PM2.5 attainment designations, it would be prudent to gauge whether your county’s attainment status will be affected by a more stringent annual PM2.5 NAAQS.

By planning for potential nonattainment area obstacles now, you may offset future headaches.  Speaking of offsets…

PM2.5 Nonattainment Area Requirements

Major modifications to facilities that result in an increase of PM2.5 emissions (and PM2.5 precursors) and that are located in areas designated as being nonattainment with the PM2.5 NAAQS could face significant air permitting hurdles, some of which could threaten the viability of projects.  Such hurdles are due primarily to the requirement to “offset” emissions increases of PM2.5 and/or PM2.5 precursors that exceed major modification criteria.

Appendix S to 40 CFR Part 51, aptly titled “Emission Offset Interpretative Ruling,” requires that major modifications subject to New Source Review (NSR) permitting involving direct PM2.5 emissions or SO2 emissions (a PM2.5 precursor) “offset” the direct PM2.5 or precursor emissions increase on a 1 to 1 basis.  That is, for every ton of PM2.5 or PM2.5 precursor emissions increase associated with a new major source or major modification, the source must demonstrate that an equivalent reduction has occurred within the nonattainment area (either at the same facility or at other local emission sources).  Such reductions are commonly referred to as emission reduction credits (ERCs) and must typically be purchased by the facility initiating the major modification.  Note that in nonattainment areas, major NSR applicability is evaluated on a pollutant-by-pollutant basis. Therefore, in a PM2.5 nonattainment area, modifications will need to be evaluated for NSR applicability for direct PM2.5 and for each precursor.  Even if a source is considered minor for direct PM2.5 emissions, but major for one or more precursors, NSR applicability will need to be evaluated for those precursors, resulting in LAER and ERC requirements.

The precursor requirements established a scenario that is new to many of us: a pollutant that has always been considered an attainment pollutant (SO2, for example) will now be subject to nonattainment pollutant requirements as a precursor to PM2.5 in PM2.5 nonattainment areas.  This means that SO2 will be a prevention of significant deterioration (PSD) pollutant (subject to air quality modeling and best available control technology (BACT) requirements) and a nonattainment NSR pollutant (subject to LAER and ERC requirements).  NOX emissions will fall under the same category as SO2 in PM2.5 nonattainment areas once states finalize their nonattainment NSR rules, as described below.

Appendix S currently applies in all PM2.5 nonattainment areas across the country, with the possible exception of New York State, and only addresses SO2 as a PM2.5 precursor.  Appendix S will continue to apply during the 3-year transition period during which SIP-approved state NSR programs will be revised to reflect the Federal PM2.5 nonattainment rules.  States are required to include NOX as a PM2.5 precursor in their nonattainment rules unless they can demonstrate that NOX does not contribute to PM2.5 formation.  States may also elect to regulate ammonia and/or VOC as PM2.5 precursors, but will need to demonstrate that ammonia and/or VOC emissions do contribute to PM2.5 formation.

ERC Requirement Challenges

There are several issues associated with finding, validating, purchasing, and executing ERCs for direct PM2.5 emissions as detailed below.

• Of primary concern is a general lack of such ERCs.  While relatively large portions of the country have been living with ozone nonattainment for well over 15 years, PM2.5 nonattainment from an NSR perspective is a relatively recent phenomenon.  As such, PM2.5 emission inventories are not well defined and facilities that have reduced PM2.5 emissions or that have shut down within the last few years likely do not have adequate records of PM2.5 emissions and reductions.
• There are spatial requirements for the use of any direct PM2.5 ERCs that may be available.  Unlike ozone, PM2.5 nonattainment is more local in nature and ERCs must typically be generated within the nonattainment area (i.e., county) in which they will be applied or be from a nearby nonattainment area with a demonstrated impact.  In fact, air quality modeling requirements exist for ERCs purchased outside of the project county, as described in the next section.
• The lack of ERC registries in many states can make finding ERCs a challenging ordeal. While some states, such as Pennsylvania, have well defined ERC “registry” systems that set standards for defining and registering ERCs, others do not have such programs. In these instances, sources are generally on their own with regard to finding, documenting, purchasing, and executing ERCs as emission offsets, often with little or no guidance from state regulatory agencies.
• The costs for direct PM2.5 ERCs will likely become an issue based on supply and demand.  For example, the cost of direct PM2.5 ERCs in Pennsylvania could start at $10,000 per ton or more.

Fortunately, U.S. EPA has included provisions in the PM2.5 NSR rules that allow sources to use PM2.5 precursor ERCs (i.e., SO2 and eventually NOX) to offset emissions increases of direct PM2.5 emissions associated with a major modification, with a stipulation.  The use of PM2.5 precursor ERCs to offset direct PM2.5 emissions increases will be subject to the following offset ratios:

• 40 tons of SO2 ERCs per ton of direct PM2.5 emissions.
• 200 tons of NOX ERCs per ton of direct PM2.5 emissions.

While the use of precursors to offset direct PM2.5 emissions increases will help on the supply side, the spatial issues associated with the use of PM2.5 ERCs and the cost concerns based on the required offset ratios will remain as hurdles.  Also note that the use of direct PM2.5 ERCs to offset increases in PM2.5 precursors is not permitted.

What is “Ambient Equivalency”?

As described in the previous section, any search for direct PM2.5 or PM2.5 precursor ERCs is required to start in your own nonattainment area.  ERCs purchased outside of your nonattainment area must be demonstrated as having “ambient equivalence” to your project-related emissions increase.  Since nonattainment areas are typically defined as individual counties, the ambient equivalency demonstration will be a common requirement for nonattainment area projects.  The ambient equivalency demonstration is performed using air dispersion modeling.  Although no clear guidance for demonstrating ambient equivalency exists, ALL4’s work with local agencies and U.S. EPA on permitting projects to date defines the demonstration as a three step process:

1. Model the project-related emissions increase from the proposed modification or new emission unit at your facility and define the geographic extent of resulting “significant concentrations.”

2. Model the emissions decrease associated with the ERCs that have been identified for purchase and define the geographic extent of resulting significant concentrations.

3. Compare the resulting ambient concentrations from your project and from the generated ERCs, and demonstrate that the significant concentrations resulting from both spatially overlap in the county that your project is located in.

A “significant concentration” of direct PM2.5 is presumably defined as the 24-hour and annual significant impact levels (SILs) that are currently proposed by U.S. EPA, although lower concentration increments could be proposed to the local agency, if required.  Significant concentrations for the purpose of modeling PM2.5 precursor emissions to demonstrate ambient equivalency are also not defined, and should be reviewed with the local agency and U.S. EPA prior to securing PM2.5 precursor ERCs.  Since the geographic extent of significant concentrations is not typically extensive (i.e., less than 10 kilometers), the spatial extent for potential ERC purchases will be limited.  In many cases, ERCs that are located farther away than the adjacent counties will not satisfy ambient equivalency requirements.  The air quality modeling evaluation is performed using the AERMOD air dispersion model, and requires the submittal of an air quality modeling protocol outlining the technical approach and information that will be used to conduct the modeling.  The protocol review process will typically extend the timeline for preparing a complete construction permit application.  Further, representative meteorological data is required for the air quality modeling evaluation (i.e., nearby National Weather Service data).

If representative meteorological data is not available, then a year of on-site meteorological monitoring may be required, further extending the permitting timeline.  These traditionally PSD-related technical issues will now become nonattainment area challenges as well.

Recommendations and Conclusions

At least in the short-term, many facilities will have difficulty in obtaining ERCs for direct PM2.5 emissions because there simply aren’t many direct PM2.5 ERCs that are registered and available for purchase.  Further complicating the search for direct PM2.5 ERCs is the fact that the ERCs must have been generated in the same nonattainment area (i.e., the same county) in which the proposed project or expansion is located.  ERCs from neighboring counties can be purchased to offset a project if the facility satisfies an equivalency demonstration through modeling, as previously explained.  The scarcity of direct PM2.5 ERCs will leave few options for most facilities.  In light of these challenges associated with an already complicated set of regulations, it is extremely important that facilities planning modifications in PM2.5 nonattainment areas be aware of the issues and begin planning to address them well in advance of a modification.  The following list identifies some ways in which a facility can plan for and address PM2.5 ERC requirements:

• Evaluate any recent changes made on-site that may have resulted in a reduction of PM2.5 or PM2.5 precursor emissions.
• Generate direct PM2.5 offsets internally by installing new controls or upgrading existing controls to reduce direct PM2.5 emissions from an existing source on site.
• Enter into an agreement to generate and purchase direct PM2.5 ERCs from a neighboring facility.  It may be cost-effective to purchase and install new controls or upgrade the existing controls at a neighboring facility to generate the ERCs needed to offset your project.
• Start searching for ERCs by checking the facility’s state ERC registry, as applicable.
• Offset the project by purchasing ERCs for precursor compounds such as SO2 and/or NOX.  This could be expensive because of the very large offset ratios involved.
• If local ERCs are not available, look to adjoining nonattainment areas, as applicable.
• If non-local ERCs are available, ensure that adequate meteorological data is available for use in the ambient equivalency analysis.
• Make sure that you thoroughly review and understand any applicable state nonattainment rules.  State-specific nuances can turn out to be unpleasant surprises.
• These items are a good starting point to plan for PM2.5 nonattainment requirements.  Stay tuned for additional articles and PM2.5 information from ALL4’s PM2.5 Team.

U.S. EPA Rescinds the TRI Burden Reduction Rule

On April 27, 2009, U.S. EPA issued a final rule to amend the Toxics Release Inventory (TRI) reporting regulations eligibility criteria for submitting a Form A Certification Statement (Form A) in lieu of the more detailed Form R.  When using Form R, facilities must provide details about releases of chemicals and other waste management practices (i.e., total quantity of releases to air, water, and land; and on- and off-site recycling, treatment, and combustion for energy recovery), while Form A only requires the name of the chemical and facility identification information.  This new rule returns the eligibility for use of Form A to the thresholds and eligibility requirements that were in effect prior to the TRI Burden Reduction Rule that was promulgated in December 2006.  U.S. EPA took this action to comply with the Omnibus Appropriations Act of 2009 enacted on March 11, 2009.

The TRI Burden Reduction Rule had allowed facilities to use Form A in lieu of Form R for TRI-listed persistent bioaccumulative toxic (PBT) chemicals (except dioxin and dioxin-like compounds) when there were no annual releases of the PBT chemical; the facility’s total annual amount of the chemical recycled, combusted for energy recovery, and/or treated for destruction did not exceed 500 pounds; and the facility did not manufacture, process, or otherwise use more than one million pounds of the PBT chemical.  The December 2006 rule also allowed facilities to use Form A in lieu of Form R for a non-PBT chemical when the facility’s total annual reportable amount of the chemical released, recycled, combusted for energy recovery, and/or treated for destruction did not exceed 5,000 pounds; the facility’s total annual releases of the chemical did not exceed 2,000 pounds; and the facility did not manufacture, process, or otherwise use more than one million pounds of the non-PBT chemical.

On March 11, 2009, the Omnibus Appropriations Act of 2009 (Act) was enacted. The pertinent part of the Act reads as follows:

“(1) None of the funds made available by this or any other Act may, hereafter, be used to implement the final rule promulgated by the Administrator of the Environmental Protection Agency entitled ‘Toxics Release Inventory Burden Reduction Final Rule’ (71 Fed. Reg. 76932); and (2) the final rule described in paragraph (1) shall have no force or effect. The affected regulatory text shall revert to what it was before the final rule described in paragraph (1) became effective, until any future action taken by the Administrator.”

Accordingly, the new rule issued on April 27, 2009 modifies 40 CFR §372.27 by eliminating Form A eligibility for PBT chemicals listed at 40 CFR §372.28, and reinstating non-PBT chemical Form A eligibility levels at the 500-pound annual reporting amount and the one million pounds manufactured, processed, or otherwise used threshold that were in effect prior to the December 2006 rule.   All amounts of releases and waste management activities are counted against the 500 pound threshold criterion.

Because the Omnibus Appropriations Act prohibits U.S. EPA from expending any funds to implement the former reporting requirements and mandated that the regulations revert to the prior version, the new rule became effective April 27, 2009, without notice and comment, and affects reports filed for Reporting Year 2008 (due July 1, 2009) and forward.

If a facility submitted a TRI Form A for Reporting Year 2008 on or after March 11, 2009, and still used the 2006 TRI Burden Reduction Final Rule to determine its eligibility for Form A, then the facility must determine whether it is still eligible to file Form A.  If the facility determines that it is no longer eligible to file Form A, then U. S. EPA requires the facility to revise and resubmit its Reporting Year 2008 report on Form R.  Facilities are not permitted to submit a Form A for PBT chemicals.

Proposed Portland Cement MACT Rule Amendments and Performance Specifications for Mercury CEMS

U.S. EPA is proposing to amend the National Emission Standard for Hazardous Air Pollutants (NESHAP) rule that established Maximum Achievable Control Technology (MACT) for the Portland cement (PC) manufacturing industry.  These regulations are codified at 40 CFR Part 63, Subpart LLL and are referred to as the PC MACT rules.  The proposed amendments, published on May 6, 2009, will affect both major and area PC MACT sources.  Included are proposed new limits for particulate matter, mercury, and total hydrocarbons (THC) from major and area HAP sources, and hydrochloric acid (HCl) limits for major HAP sources only.  An important note for other MACT source categories is the inclusion in the proposal of performance specifications for the use of mercury continuous emission monitors (CEMS).  Amendments and additions to Appendix B of 40 CFR Part 60 that address the mercury CEMS are part of the proposed rulemaking package.

The proposed new PC MACT particulate matter standards for cement kilns are based on the tons of clinker produced rather than the kiln system dry feed rate as currently promulgated, and are established at 0.085 lb/ton for existing cement kilns and 0.080 lb/ton for new kilns.  The mercury limits are also based on clinker production but are specified as 30-day averages.  The proposed mercury limit for existing kilns is 43 lb/million tons of clinker produced and the proposed limit for new kilns is 14 lb/million tons of clinker produced.  The proposed THC limits are concentration-based and are also specified as 30-day averages with the existing kiln limit set at 7 ppmv and the new kiln limit set at 6 ppmv.  While all of these limits would apply to kilns at both major and area HAP sources, the proposed new HCl limit would only apply to kilns at major HAP sources. The proposed HCl limits are also specified as 30-day averages and are set at 2 ppmv for existing sources and 0.1 ppmv for new sources.

In addition to the new limits for cement kilns, the proposed amendments include new limits for clinker coolers and raw material dryers.  New particulate matter limits identical to the kiln limits are proposed for clinker coolers: 0.085 lb/ton for existing coolers and 0.080 lb/ton for new coolers.  Note that these limits would also be based on clinker produced rather than on the kiln system dry feed rate as for the current limits.  For raw material dryers, new THC limits are specified for both major and area sources.

In addition to the proposed new emission limits for each of the identified PC MACT sources, the proposed rule includes new performance testing and monitoring requirements.  As noted above, many of the new limits are now production-based.  The proposed rule will require that permanent weigh scale systems be installed to directly measure clinker production rates.  As a result of the proposed new mercury limits, the ban on the use of fly ash from utility boilers that is included in the current rule will also be eliminated.

The compliance date for the new PC MACT limits for existing sources would be three years from the effective date that the proposed amendments become final, which U.S. EPA envisions as sometime in 2013.  Compliance dates for new sources are tied to the effective date of the final amendments.  Note that the requirement to install a weigh scale system for measuring clinker production at existing kilns would be effective 30 days following the effective date of the final rule.  U.S. EPA is accepting comments for a 60-day period that ends July 6, 2009. The Portland Cement Association and other groups are actively involved in this rulemaking process.  However, given the stringency of some of the proposed new limits, regulated facilities would be wise to evaluate the potential impact of the revised PC MACT Rule on their existing operations and take the opportunity to comment on the proposal.  Details can be found on U.S. EPA’s website at http://www.epa.gov/ttn/oarpg/new.html.