ALL4’s: Is That Your Final Answer?

Last Month’s Answer and Winner:

There were many, many respondents who correctly identified the location of the terrible smog event in 1948 as Donora, Pennsylvania; however, Mike Huncik was the first and thus is the March “Is That Your Final Answer” winner.  Sometimes as we are stumbling through and puzzling over the most recent U.S. EPA rulemaking, it is probably a good idea to reflect back and consider the progress that we have made improving the environment over the past sixty plus years.

Question:

And progress is the key to our April “Is That Your Final Answer” question.  Over the past thirty years we have seen all sorts of improvements to how environmental measurements are made.  Whether the measurements are made to analyze pollutant concentration levels in a stack or to determine real-time ambient air fine particulate levels, we can now make better, faster, and more accurate environmental measurements.  So this month we will challenge you with the following picture of a measurement device that is now often replacing a robust and reliable measurement device.  Name this piece of equipment pictured to the right and tell us what it measures before anyone else and you will be the April “Is That Your Final Answer” winner.  Good luck!

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).

ALL4’s Final Answer is a monthly feature of our Blog Digest.  It 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 Final Answer will identify the winner and the correct answer from the previous month’s question.  You must be an active subscriber of ALL4’s Blog Digest 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!

Check Out the Ingredients For This Recipe

Any good cook is always a little fussy when preparing their favorite recipes, the ingredients need to be fresh and from a trusted source.  After all, the guest’s experience with the food reflects directly on the cook’s reputation.  Well it is no different in the industrial sector where, as an environmental manager, your knowledge and trust in your alternate fuel can have a significant impact on how well you can manage your environmental reputation with state and federal agencies.  Furthermore, you do not want to find yourself in a situation where you expected one set of regulations to apply to your facility only to find out that a different set of more stringent ones apply.  By now, you probably suspect that the “culinary” issues that we are discussing are really non-hazardous secondary materials (NHSM) determinations and applicability of the Industrial/Commercial/Institutional Boilers and Process Heaters (i.e., the Boiler MACT) or the Commercial/Industrial Solid Waste Incinerators (CISWI) regulations.  Just like a good chef relies on the quality of his ingredients, you will want to know the pedigree of any alternate fuels that are currently an important component of your operations. 

Currently, if you are using alternate fuels, you should be actively reviewing your obligations under the Boiler MACT or CISWI regulations.  Most likely your plan is to be regulated under the Boiler MACT, and thus, you need to be certain that your use of an alternate fuel meets the non-waste criteria under the NHSM rule.  If your alternate fuel is a traditional fuel as defined by U.S. EPA, then your confidence in Boiler MACT applicability should be high.  If your alternate fuel is not a traditional fuel, then you should really start to initiate a legitimacy demonstration.  As an example, suppose you are using a “green” engineered fuel prepared by a local supplier that contains a post-consumer plastics component.  Are you confident that the biomass component and the consumer plastic components of the green engineered fuel qualify as a non-waste?  As the end-user of the fuel, you will bear the final responsibility for how the fuels could re-classify your combustion unit.

So what do you need to consider as part of the process for demonstrating that your fuel is a legitimate fuel and not a solid waste?  Well first, you might consider who should prepare the legitimacy demonstration for your specific facility, you or your fuel supplier. You might also consider whether simply delaying the development of a legitimacy demonstration might be the best course of action, after all, a change in the regulations or taking advantage of someone else’s legitimacy demonstration might affect the amount of effort that you need to spend on your legitimacy demonstration.  Finally, if you do proceed with your own legitimacy demonstration, do you request regulatory (U.S. EPA regional) review of your demonstration even though it is not specifically required?  Here are our recommendations related to these three considerations.

Who should prepare the legitimacy demonstration? 

It is important to note that the legitimacy demonstration is your facility’s documentation and that it resides in your facility’s files.  You will want to make certain that you can stand behind it.  Therefore, we recommend that the primary responsibility for initiating the legitimacy demonstration be yours.  Where your fuel supplier can contribute valuable information, request that they do so.  If analytical data are required, ask your fuel supplier to develop the data, but be prepared to undertake your own sampling/analytical program to achieve your comfort level that the fuel is a non-waste.

Can I just wait awhile before beginning the legitimacy demonstration? 

The NHSM, Boiler MACT, and CISWI regulations all have revisions pending and the potential for litigation is high, so it would be disingenuous to deny that playing the waiting game could be a valid course of action.  However, the proposed revisions to the NHSM rule do not substantially alter the legitimacy demonstration process other than to offer a process for proposing categorical exemptions for alternate fuels.  Whether a particular alternate fuel could qualify for a categorical exemption and who would champion the exemption process is unknown.  So the decision regarding when to begin the legitimacy demonstration boils down to the question of how comfortable you are relying on outside forces to define your course of action or whether you prefer to initiate a process where you are in control.

Do I need regulatory sign-off on my legitimacy demonstration?

For a legitimacy demonstration required under 40 CFR Part 241.3(b)(4), no federal agency review or approval is required.  However, there are companies that have requested that U.S. EPA confirm the findings of their legitimacy demonstration.  To date only a handful of findings have been issued by U.S. EPA regional offices, and each of the findings has included a caveat stating that different information could result in different determinations made regarding the non-waste status.  If you feel that your alternate fuel consists of components that are different from other components that you have encountered or if your corporate environmental policy routinely seeks agency approval for projects, then the effort to obtain agency review is worthwhile.  However, when submitting your legitimacy demonstration for agency review, remember to be careful about the level of detail associated with your legitimacy demonstration.  For example, describing an extensive sampling program as part of your legitimacy program can set a precedent that the regulatory agency could come to expect.  It is probably better to provide a generic description about a component associated with your legitimacy demonstration even though you intend to institute a very detailed program for ensuring the non-waste status of your alternate fuel. 

Read this blog next month for additional insight regarding legitimacy demonstrations and what they should include.  And if you need more information about the NHSM rule, be certain to contact any of the following individuals; Ron Harding or Dan Holland.

A Fundamental Major NSR Applicability Question

Here’s a question that we hear all the time related to changes at existing major stationary sources…Why do I have to do a New Source Review (NSR) applicability evaluation when my modification project will result in emissions that are less than my current permit limits?  This is a good question and many plant managers as well as environmental professionals may find the answer a bit confusing.  The answer resides in how U.S. EPA defines the procedure for calculating whether a significant emissions increase will occur as a result of the project.  For a modification of an existing emission unit an “Actual-to-projected-actual” or “Actual-to-potential” applicability test is required.  The critical parameter is not the emissions that the unit is allowed to produce, but the emissions that the unit has actually historically produced.  So, if you have historically run the unit to be modified well below its permitted limit and you want to run that unit, after the modification, close to the permit limit, the change could result in a significant emission increase thereby triggering major NSR even though the unit, after the change, would be operating under the existing limits established in your permit.  The takeaway is that any physical change or change in the method of operation at an existing major source can be a modification and is a “trigger” for the NSR applicability test.  The NSR applicability test will determine if the change results in a significant emissions increase based on a comparison of the historic “baseline” emissions to the projected future actual or the potential emissions.  Failure to recognize the NSR applicability test trigger can have serious air permitting and compliance implications.  This example illustrates how inflated permit limits (well above what you can actually reach) are meaningless when evaluating NSR applicability.

Urgent – SO2 Implementation Update

U.S. EPA has recently provided state air quality regulatory agencies with an update of the sulfur dioxide (SO₂) 1-hour National Ambient Air Quality Standard (NAAQS) designation process.  The significant news is that U.S. EPA will no longer require that air dispersion modeling for individual facilities be included in the June 2013 Maintenance State Implementation Plan (SIP) submittal from states.  In its originally recommended form, the dispersion modeling requirement (as articulated in the preamble to the final rule) would have likely resulted in new emission limits for specific emission units at major facilities and would have placed a significant burden on states to complete a very complicated modeling effort.  Now that the dispersion modeling requirement has been removed, the June 2013 Maintenance SIPs will be consistent with plans for previous NAAQS efforts and will likely focus on existing monitoring data only. U.S. EPA has also stated in their update that approval and/or comments on the initial state recommendations will be released soon.

While the dispersion modeling requirement has been tabled relative to the June 2013 deadline, U.S. EPA did not entirely close the door on SO₂ dispersion modeling.  They now intend on coordinating a series of stakeholder workgroup meetings in the near future to solicit comments on the most appropriate way to implement the SO₂ NAAQS and to arrive at designations, particularly for currently unclassifiable areas within which no ambient monitoring data is currently available.  We strongly encourage impacted industries to be involved in the stakeholder meetings.  ALL4 will provide periodic updates related to meeting dates and venues.  More information about U.S. EPA’s SO₂ NAAQS Implementation can be found here.

Don’t Get Caught Sleeping – The RICE MACT Compliance Date Will Be Here Before You Know It

Are you subject to the RICE MACT?  No?  Are you sure?  The term “RICE MACT” refers to the National Emission Standards for Stationary Reciprocating Internal Combustion Engines (RICE), codified at 40 CFR Part 63, Subpart ZZZZ.  The RICE MACT rules apply to any piece of equipment driven by a stationary RICE located at a major source or area source of hazardous air pollutants (HAP).  The rule was originally promulgated on June 15, 2004, and applied only to RICE rated at over 500 brake horsepower (bhp) that were located at major sources of HAP emissions.  Since then, the RICE MACT has been revised two (2) times:  Once in January 2008, and again in March 2010.  With each revision, the U.S. EPA has cast their net a little bit wider, capturing more and more RICE units.  Now, the RICE MACT potentially applies to any stationary reciprocating internal combustion engine, regardless of size, located at both major and area sources of HAP emissions.  There are some exemptions, of course.

First of all, the RICE MACT only applies to stationary RICE.  Stationary RICE differ from mobile RICE because a stationary RICE is not a non-road engine as defined at 40 CFR §1063.30, and it is not used to propel a motor vehicle.  Stationary RICE are used in association with generators, fire pumps, water pumps, black start motors, compressors, etc.

The RICE MACT is a rule that takes time for even an expert to navigate.  There is nothing cut-and-dry about it.  But before you even sit down with this rule to try to steer through its many twists and turns, you will need to know some things about your facility and your RICE:

• Major Source Status
• New, Reconstructed, or Existing RICE
• Manufacture Date, Construction Date, Rated Capacity
• Fuel Type and Engine Type

Is your facility a major source or area source of HAP emissions?  A major source is a plant site that emits or has the potential to emit any single HAP at a rate of 10 tons per year or any combination of HAP at a rate of 25 tons per year or more.  An area source is any plant site that is not classified as a major source of HAP.  When determining your major source status, it is important to keep in mind that major source status is determined based on your plant’s potential to emit, a term that is defined by U.S. EPA.  Unless otherwise restricted by one or more federally enforceable permit conditions, you must assume that your plant operates 8,760 hr/yr at maximum capacity while processing your worst-case HAP-emitting material and/or while firing your worst-case HAP emitting fuel when determining your potential to emit.  Even though your facility may actually emit very small amounts of HAP, your facility’s potential to emit HAP could be above major source thresholds.

New, Reconstructed, or Existing RICE

Remember the days when determining whether your emissions unit was “new” or “existing” was as simple as knowing only one calendar date?  As stated earlier, there is nothing simple about the RICE MACT.  Welcome to the entrance of the RICE MACT maze:

• Existing Stationary RICE means the following:
  • A stationary RICE with a site rating of more than 500 brake horsepower located at a major source of HAP emissions if construction or reconstruction commenced before December 19, 2002.
  • A stationary RICE with a site rating of less than or equal to 500 brake horsepower located at a major source of HAP emissions and any stationary RICE located at an area source of HAP emissions if construction or reconstruction commenced before June 12, 2006.
• New Stationary RICE means the following:
  • A stationary RICE with a site rating of more than 500 brake horsepower located at a major source of HAP emissions if construction was commenced on or after December 19, 2002.
  • A stationary RICE with a site rating of equal to or less than 500 brake horsepower located at a major source of HAP emissions and any stationary RICE located at an area source of HAP emissions if construction commenced on or after June 12, 2006.
• Reconstructed Stationary RICE means the following:
  • A stationary RICE with a site rating of more than 500 brake horsepower located at a major source of HAP emissions if it meets the definition of reconstruction in §63.2 and reconstruction commenced on or after December 19, 2002.
  • A stationary RICE with a site rating of equal to or less than 500 brake horsepower located at a major source of HAP emissions and any stationary RICE located at an area source of HAP emissions if it meets the definition of reconstruction in §63.2 and reconstruction commenced on or after June 12, 2006.

The month and year in which the engine was produced in the factory is the engine’s Manufacture Date.  The date that the engine was purchased and/or installed at your facility is the engine’s Construction Date.  The Rated Capacity of the engine refers to its maximum brake horsepower output (bhp).  Determining an engine’s rated capacity could be as simple as reading a number off of a name plate, or it could require some investigation on your part using manufacturer literature that you have onsite or obtained from the manufacturer’s website.  Many times, a call to the manufacturer may yield the answers you seek.

Fuel Type and Engine Type

Many engines are designed to fire gasoline, diesel, propane, or natural gas. But there are other, less traditional fuels that are fired in some engines.  For example, some engines are designed to fire landfill gas, or a combination of fuels such as landfill gas and natural gas.  Knowing which fuel(s) your engine is capable of firing is an important clue to understanding how your engine fires its fuel.  Is your engine a compression ignition (CI) or spark ignition (SI) engine?  If it is an SI engine, is the engine a four (4) stroke rich burn (4SRB) engine, four (4) stroke lean burn engine (4SLB), or a two (2) stroke lean burn (2SLB) engine?  Each of these terms (4SRB, 4SLB, and 2SLB) is defined in the rule.  Determining whether an SI engine is 4SRB, 4SLB, or 2SLB oftentimes can be determined from manufacturer literature. However, you may end up having to contact the engine manufacturer.

Once you know all there is to know about your RICE, you can finally sit down, crack open the rule, and begin to work your way through this regulation.  If you determine that you do have an existing RICE that is subject to an emission limitation and/or work practice standard, your RICE’s compliance date could be June 17, 2007, May 3, 2013, or October 19, 2013, depending upon your major source status and the engine information.

Are you completely confused yet?  Don’t worry, you are not alone.  ALL4 will be conducting a webinar on June 6, 2012 to help shed some more light on this rule.  Stay tuned to our website for information on how to sign up for the RICE webinar.

U.S. EPA Takes Exception to PADEP Air Quality Permitting Streamlining Provision

Back in 2008 the Pennsylvania Department of Environmental Protection (PADEP) adopted amendments to its “Plan Approval” regulations codified at 25 Pa. Code 127, Subchapter B, adding provisions intended to streamline the process for certain air permitting actions in Pennsylvania.  In Pennsylvania, a Plan Approval is a permit that authorizes construction, installation, or modification of any air pollution source and subsequent temporary operation to assure that equipment is operating properly (i.e., a “shakedown” period).  Notice of the adoption of these amendments was published by PADEP in the Pennsylvania Bulletin on May 24, 2008. 

These air quality permitting streamlining amendments adopted by PADEP included: (1) an increase to the duration of permissible extensions of the “shakedown” period; (2) stipulation of PADEP’s obligations with respect to determining whether a submitted application is administratively complete and notifying the applicant of that decision; and (3) a clarification of where notices of public hearings on applications are to be published.  More importantly, the amendments also included establishing separate and different public notice requirements for major and minor permitting actions, replacing the prior public notice requirements that were the same for both major and minor actions.  A key streamlining feature of the new public notice requirements for minor permitting actions is the provision for PADEP to publish a single “notice of receipt and intent to issue” in the Pennsylvania Bulletin upon receipt of a complete application.  Prior to the permitting streamlining amendments of 2008, PADEP would generally publish two notices for all Plan Approval actions; one upon receipt of an application, and one of intent to issue a proposed plan approval.  Each of these notices were followed by a comment period.  This has remained unchanged for major permitting actions.  But under the new requirements for minor actions, PADEP can now issue the Plan Approval after a single comment period that follows a “notice of receipt and intent to issue” without further notice, unless significant public comments are received.  This provides the real potential for significantly shortening the time an applicant has to wait to start construction of a project after submitting an application, allowing much quicker implementation of improvements and realization of the associated benefits.

Of course, any time a State makes changes to its air quality permitting program, the State is required to submit a State Implementation Plan (SIP) revision to U.S. EPA for approval.  U.S. EPA reviews such SIP revisions to assure that they meet related Federal requirements.  PADEP submitted a SIP revision pertaining to the 2008 air quality permitting streamlining amendments to U.S. EPA on April 14, 2009.  On April 12, 2012 (just shy of 3 years later) U.S. EPA published a notice in the Federal Register proposing a “limited” approval of PADEP’s SIP revision.  The proposed approval is “limited” because U.S. EPA is taking exception to a detail contained in PADEP’s new provision for publishing a single “notice of receipt and intent to issue” for minor permitting actions.  In adding the new single notice provision, PADEP stipulated that the information required to be included in a “notice of receipt and intent to issue” was: (1) the name and address of the applicant and the location of the source; (2) a brief discussion of the proposed action including a description of the source, the control technology, the conditions being placed in the permit, and the type and quantity of air contaminants being emitted, as well as a point of contact at PADEP; and (3) the statement that a person may oppose the proposed Plan Approval by filing a written protest with the appropriate PADEP Regional Office.  In the April 12, 2012 proposed action, U.S. EPA says that this isn’t good enough and therefore this portion of the SIP revision cannot be approved.  U.S. EPA cites the Federal requirements with regard to public availability of information at 40 CFR 51.161(a) which require that “[t]he public information must include the agency’s analysis of the effect of construction or modification on ambient air quality, including the agency’s proposed approval or disapproval.”  Since PADEP’s amendments do not explicitly require that the agency’s analysis be included in the “notice of receipt and intent to issue” or that it be made available for public inspection in at least one location in accordance with 40 CFR 51.161(b)(1), U.S. EPA is proposing to withhold its approval of this portion of PADEP’s SIP revision pertaining to the 2008 air quality permitting streamlining amendments.  To obtain full approval, U.S. EPA proposes that PADEP must adopt in its public notice requirements for minor permitting actions an explicit requirement that the agency’s analysis be included in the information provided to the public for comment as well as the requirement that the analysis be made available for public inspection, and then submit those changes to U.S. EPA in another SIP revision.

Logically, the streamlining provided by PADEP’s amendments that allow for publishing a single “notice of receipt and intent to issue” for a minor permitting action comes, in part, from PADEP being able to complete part of its analysis of an application while the public comment period is running.  Realistically, it may not be possible for PADEP to complete its analysis and make it available along with a “notice of receipt and intent to issue” published upon receipt of a complete application.  U.S. EPA’s exception to this particular streamlining provision is currently only proposed, and U.S. EPA is accepting comments on it until May 14, 2012.  However, if it becomes final as it is proposed, and PADEP must return to a longer timeline for issuing Plan Approval for minor actions in order to please U.S. EPA, then this well-intentioned streamlining that PADEP sought to provide sources in Pennsylvania could be lost.

U.S. EPA Proposes the Long Awaited Amended HMIWI Federal Plan and Makes a Few Tweaks to the HMIWI NSPS

Federal Plan Amendments Proposed by U.S. EPA

UPDATED (04/26/12):  EPA has published the proposal in the Federal Register.  April 23, 2012 starts the public comment period.  Comments will be accepted until June 7, 2012 and if a public hearing is requested by May 3, 2012, EPA will hold a public hearing on May 8, 2012.

(04/16/12): A bit behind the Clean Air Act (CAA) established schedule, U.S. EPA proposed amendments on March 28, 2012 to the Federal Plan (40 CFR Part 62 Subpart HHH).  Per the CAA, amendments to the Federal Plan were to be promulgated by October 6, 2011.  The Federal Plan implements emission guidelines for existing hospital, medical and infectious waste incinerators (HMIWI).  The amended Federal Plan will implement the revised emission guidelines (EG, 40 CFR Part 60 Subpart Ce) issued on October 6, 2009.

So, who does this apply to? 

• HMIWI where construction began on or before December 1, 2008, or where modifications began on or before April 6, 2010, AND
• HMIWI located in states that have not submitted an acceptable revised/new state plan to U.S. EPA and had it approved.  The amended federal plan would apply until individual states have approved revised/new plans of their own in effect.

The number of HMIWIs operating in the U.S. has greatly diminished since the original 1997 rulemaking but for those HMIWIs that operate today, where do the states stand?  Below is a table of U.S. EPA’s Understanding of what the states are up to:

With the majority of states/local jurisdictions somewhere in the process of either developing a state plan or submitting a negative declaration to U.S. EPA, it’s important for environmental professionals responsible for HMIWI air quality compliance to know where each jurisdiction stands.  It’s quite possible that there will be a period of time where an HMIWI may need to operate pursuant to both a state plan and the Federal Plan.  Two examples come to mind.  (1) The state plan may be state approved but not yet approved by U.S. EPA and (2) there may be cases where a state had previously developed a state plan for the original 1997 HMIWI rule but has elected to “punt” this time around making HMIWI sources potentially subject to a historic state plan as well as the Federal Plan.

When do HMIWI have to be in compliance? 

The Federal Plan establishes a final compliance date of October 6, 2014 for HMIWI and established a handful of increments of progress to demonstrate that progress is being made toward final compliance.  The first increment of progress, Submit Final Control Plan, has been proposed to be due this October. 

What are the major changes in the proposed Federal Plan amendments?

• Additional delegation of authority provisions
• Additional testing, monitoring, recordkeeping and reporting requirements
• Annual inspections of emissions control devices
• One-time visible emissions test of ash handling operations
• Procedures for test data submittal
• Revised applicability provisions
• Revised Title V permit provisions
• Revised waste management plan provisions
• Revised/new definitions
• Schedule for compliance with amended federal plan
• Tighter emissions limits for all regulated pollutants
• Visible emissions limit for ash handling operations

NSPS/EG Proposed Amendments

U.S. EPA is also proposing amendments to the New Source Performance Standards (NSPS), 40 CFR Part 60 Subpart Ec. The proposed amendments would eliminate a remaining startup, shutdown, and malfunction (SSM) exemption to emission limits and standards (U.S. EPA overlooked this in their 2009 final rule) to ensure the standards are consistent with the DC Circuit Court’s SSM vacatur.

Public Participation/Promulgation Timeline

The proposal has not yet been published in the Federal Register.  Upon publication in the Federal Register (likely sometime in April 2012), written comments will be accepted for 45 days.  Additionally there is an option to request a public meeting.   As discussed earlier, U.S. EPA is already behind schedule, so they do not expect to extend the public participation timeline. 

When will U.S. EPA get the Federal Plan promulgated?  It’s anyone’s guess but hopefully before any affected HMIWI sources need to meet the first increment of progress.  (Hint:  we don’t anticipate this date changing drastically, if at all, so if you haven’t started to plan for compliance with the new requirements, namely the more stringent emission limits, now would be a fine time to get started!)

U.S. EPA Proposes First NSPS For Greenhouse Gas Emissions

A major event in the Climate Change arena occurred on March 27, 2012 when, for the first time, U.S. EPA proposed New Source Performance Standards (NSPS) for emissions of carbon dioxide (CO2).  The recent proposal, which was published in the Federal Register on April 13, 2012, specifically applies to new affected fossil fuel-fired electric utility generating units (EGUs). However, it is a true regulatory milestone in that it marks the very first time an actual greenhouse (GHG) emission standard has been proposed by U.S. EPA for a stationary source.

The proposed standards are the direct result of two (2) settlement agreements proposed concurrently by U.S. EPA on December 30, 2010 [Federal Register Notice Volume 75, No. 250].  The settlement agreements were proposed in order to resolve threatened litigation filed by numerous states concerning the February 2006 amendments to 40 CFR Part 60, Subpart Da (Standards of Performance for Electric Utility Steam Generating Units, Industrial-Commercial-Institutional Steam Generating Units, and Small Industrial-Commercial-Institutional Steam Generating Units) and the June 2008 final rule entitled “Standards of Performance for Petroleum Refineries.”  In their originally filed petitions, the states made the claim that neither of the cited rules established standards of performance for GHG emissions, and further pointed out that U.S. EPA has a statutory obligation to issue NSPS for all pollutants it regulates.

Under the terms of the consent decree, U.S. EPA committed to proposing standards of performance for GHG for new and modified EGUs subject to Subpart Da by July 26, 2011, with final action no later than May 26, 2012, and also committed to proposing standards of performance for GHG for new and modified petroleum refineries subject to Subparts J and Ja (Petroleum Refineries, and Petroleum Refineries for Which Construction, Reconstruction, or Modification Commenced After May 14, 2007, respectively), Subpart Db (Industrial-Commercial-Institutional Steam Generating Units), Subpart Dc (Small Industrial-Commercial-Institutional Steam Generating Units), Subpart GGG (Equipment Leaks of VOC in Petroleum Refineries for Which Construction, Reconstruction, or Modification Commenced After November 7, 2006), and Subpart QQQ (VOC Emissions from Petroleum Refinery Wastewater Systems) by December 10, 2011, with final action no later than November 10, 2012.

At this point in time, U.S. EPA has only addressed the states’ requests for standards of performance for new EGUs; however, as committed to in the December 30, 2010 settlement agreements, U.S. EPA will likely demonstrate more activity in this area – first for existing EGUs, then for new and existing petroleum refineries – although U.S. EPA Administrator, Lisa Jackson, told reporters on a March 27 conference call that the proposal would “never apply” to existing plants “and we don’t have plans to address existing plants.”

As presented in U.S. EPA’s Regulatory Impact Analysis for the proposed rule, energy industry modeling forecasts uniformly predict that few, if any, new coal-fired power plants will be built in the near future, due to the increased availability of, and lower cost for, natural gas as compared to other types of fossil fuel.  Therefore, U.S. EPA proposed its new standard specifically based upon the demonstrated performance of natural gas combined cycle (NGCC) units.  Since NGCC units are already very prevalent throughout this country and anticipated to be the predominant fossil fuel-fired technology in the future, U.S. EPA anticipates that “the proposed EGU GHG NSPS will result in negligible CO₂ emission changes, energy impacts, quantified benefits, costs, and economic impacts by 2020…and does not anticipate this rule will have any impacts on the price of electricity, employment or labor markets, or the U.S. economy.”  In drafting the rule, U.S. EPA evaluated a wide range of electricity market conditions and performed multiple sensitivity analyses, which caused them to believe that industry will choose to construct new units that already meet these standards, regardless of the new proposal. 

Therefore, U.S. EPA further claims the proposed new rule is “practical, flexible, and achievable.”  Only time will tell as to whether future NSPS rulemakings for GHG will be so achievable – but they certainly appear to be so at the onset, with new fossil fuel-fired EGU sources greater than 25 megawatt electric (MWe) being required to meet an output-based standard of 1,000 pounds of CO2 per megawatt-hour (lb CO₂/MWh), but also being offered alternative compliance options like output-based standards to be averaged over a lengthy 30-year period.   For the time being, the proposed rule serves as a model from which to speculate what these future rules might look like, resolving some of the longstanding mystery that’s surrounded this category of emissions.  Comments on the proposed rule will be accepted through June 12, 2012.

Environmental Aspects of Shale Gas Development

On March 27, 2012, the Mid Atlantic States Section (MASS) of the Air and Waste Management Association (AWMA) hosted a conference titled “Environmental Aspects of Shale Gas Development” at the Rutgers Eco-Complex in Bordentown, New Jersey.  Carol Collier, the Executive Director of the Delaware River Basin Commission provided the Keynote Address.  A diverse group of speakers including John Slade of ALL4, Terry Bossert of Chief Oil and Gas LLC, Dennis Risser of the USGS, Lou Vittorio of EarthRes Group, and Tracy Carluccio of the Delaware Riverkeeper Network covered a range of topics. Roy Rakiewicz of ALL4 served as the Technical Chairperson.  The presentations addressed the geology of shale formations, drilling and hydraulic fracturing techniques, groundwater quality, surface water quality, waste generation, air quality, regulatory issues, and the industry’s perspective.  The conference was well attended with approximately 30 attendees on site and another 60 or so participating via webinar.  The presentations prompted many pertinent questions and some spirited discussion among the speakers.  ALL4’s John Slade provided insight on air emissions and air permitting concerns associated with shale gas development operations.  Contrary to popular belief, the oil and gas industry is highly regulated with regard to air quality and several new final federal standards are currently pending. John’s presentation can be accessed here.  The entire set of presentations can be viewed here.  Additional information regarding the conference and on AWMA in general can be found on the MASS website.

U.S. EPA Classifies Fracking Equipment as Non-Intermittent

U.S. EPA has determined that emissions from drilling and well completion equipment at high-volume hydraulic fracturing (fracking) operations should not be considered intermittent emissions sources in relation to dispersion modeling for short-term National Ambient Air Quality Standards (NAAQS).  The U.S. EPA determination means that fracking operations that are required to conduct NAAQS dispersion modeling because they trigger major source permitting requirements or because they receive a request to perform modeling at a state’s discretion will be required to model their short-term maximum emission rates just as any other “full-time” emission source would be required to do.  Industry had argued that although fracking operations occur over a period of months they are intermittent over a 24 hour period and therefore should be exempt from short-term NAAQS modeling requirements. 

The New York State Department of Environmental Conservation (NYSDEC) was originally concerned with short-term modeling requirements for fracking operations because they had prepared a draft Supplemental Generic Environmental Impact Statement (SGEIS) which employed short term nitrogen dioxide (NO₂) NAAQS emissions modeling to develop emissions control guidelines and an environmental impact analysis for fracking equipment.  It is ALL4’s experience that inexact and ultimately conservative dispersion modeling is not an appropriate tool to develop and implement prescriptive and specific control requirements.  The Independent Oil and Gas Association of New York (IOGA) argues that fracking equipment should not be included in a dispersion modeling analysis since the engines meet the non-road sources definition, and instead a “performance-based” regulatory approach should be developed.  Modeling well completion and drilling equipment as stationary sources at unrealistic operating hours ultimately results in exceedingly worst-case modeled concentrations, potentially causing the requirement of impractical emission controls.  Industry fears overestimating the environmental impacts of fracking could specifically cause the shale-gas development in New York State to lose its competitive edge compared to other states oil and gas markets.