April Showers Bring…Proposed Modeling Updates for 2015!

If there’s one (1) thing that the regulated community can agree on, it’s their concern over the challenges related to air quality modeling.  Industry is all too familiar with the conservative modeling results for their proposed projects, which can trigger stricter emissions controls required for sources or otherwise limit, postpone, or cancel expansion plans.

U.S. EPA plans to update its air quality modeling requirements in spring 2015, which will include revisions to Appendix W, U.S. EPA’s air quality modeling guidelines.  As presented in an October 28, 2014 presentation to U.S. EPA’s Clean Air Act Advisory Committee (CAAAC), the proposed revisions include:

  • Incorporating new analytical techniques to address ozone and secondary PM2.5;
  • Updating how to conduct individual source and cumulative impact analysis for the new 1-hour NAAQS; and
  • Updating current U.S. EPA-preferred models to address input and science issues.

U.S. EPA has established working groups to tackle these revisions and consider both near-field impacts and long range transport.  The proposed revisions will be discussed at the 11th Conference on Air Quality Modeling in Raleigh, NC this spring, and U.S. EPA plans to issue the final rule in spring 2016.

In addition to updates to Appendix W, U.S. EPA plans to establish two (2) new rules addressing PM2.5 significant impact levels (SILs) and ozone prevention of significant deterioration (PSD) and nonattainment new source review (NNSR) requirements.  The PM2.5 SIL reconsideration rule will re-establish PM2.5 SILs for both the 24-hour and annual standards, as well as establish revised significant emission rates (SERs) for those PM2.5 precursors that trigger the requirement for air quality analysis.  The ozone PSD and NNSR requirements rule will address screening criteria associated with the measurement of ozone impacts, and will establish SILs for the ozone standard.  In addition, the SERs for VOC and NOX (ozone precursors) that trigger the requirement for air quality analysis will be revised.

ALL4 will be keeping an eye on the proposed air quality modeling revisions and rules presented by the U.S. EPA, so check back for updates that could impact you!

New U.S. EPA Clean Power Plan Guidance for Mass-Based Emission Rates

On November 6, 2014, U.S. Environmental Protection Agency (U.S. EPA) published a technical support document (TSD) that provides guidance on converting the Clean Power Plan (CPP) emission intensity-based goals in terms of pounds of carbon dioxide (CO2) per megawatt-hour (lb/MWh) to a mass-based equivalent in metric tons.  Specifically, the TSD provides two (2) illustrative approaches on how a state or local agency could convert its lb/MWh goal to total metric tons of CO2.  

Why is this important? Early indications are that many states will consider an interstate trading program as a compliance option for CPP.  Traditional trading programs are based on mass emission rates, and regulatory agencies desire a program under CPP that is consistent with existing programs.

Let’s take a quick look at the two (2) potential methodologies described in the TSD that are used to convert CO2 from a rate basis to a mass basis.

The first approach produces mass-based equivalents is limited to existing affected fossil fuel-fired sources, while the second approach includes both affected and new fossil fuel-fired sources.  Both methods of calculating the mass-based equivalents use the following simple form equation:

Now that the general equation is defined, let’s take a more detailed look at the first calculation approach.  In this approach, a mass equivalent generation level is calculated using data from the June 2014 and October 2014 proposal’s calculation appendices, which can be found here.  This approach begins by quantifying the historical generation from the affected fossil fuel fleet using the following calculation:

The historical affected mass generation rate is then used to calculate an adjusted affected fossil generation quantity as seen below:

From here, the existing and incremental non-fossil generation is included to obtain the mass equivalent generation level as detailed below:  

Now let’s take a look at the second calculation approach.  In this approach the mass generation rate includes new fossil fuel-fired sources and assumes that the new sources contribute an amount of incremental generation that is equal to projected demand growth.  This step uses an annual average growth rate based on regional demand projections to calculate projected sales for future years. An example equation can be seen below:

From here, the projected sales are converted to a generation increment, which accounts for transmission losses and generation from NGCC facilities that are under construction.  The conversion can be seen below.  The final incremental demand levels for new generation can also be obtained in Appendix 2 of the TSD. 

Finally, the incremental demand for new generation is added to the generation from existing affected sources, building block three (3) generation, and building block four (4) avoided generation.  The relationship is provided below:

Once the mass equivalent generation levels have been calculated for each approach, the mass equivalent in metric tons can now be calculated using the equation below:

The final mass-based equivalents for each state or local agency have been published in Appendix 4 and 5 of the TSD.

Through the use of these calculation methods, U.S. EPA continues to work toward a final rule that enables affected jurisdictions to develop their own course to meet targets for reducing carbon pollution.  However, one (1) prominent group has already provided some initial feedback on U.S. EPA’s proposal approach.  The National Association of State Energy Officials (NASEO), whose members represent energy officials from each U.S. state and territory, has expressed its dissatisfaction with the proposed approach, and has requested a “specific protocol” from U.S. EPA in the form of a new guidance document to convert the intensity goals to mass-based limits.

As a reminder, U.S. EPA is still accepting comments on the proposed CPP that was published on June 18, 2014.  The comments on the proposed CPP published on June 18, 2014 are due no later than December 1, 2014.  

More Proposed Changes to PC MACT

On November 4, 2014, the U.S. Environmental Protection Agency (U.S. EPA) published a proposal to amend two (2) rules issued in February 2013: the National Emission Standards for Hazardous Air Pollutants (NESHAP) from the Portland Cement Manufacturing Industry (40 CFR Part 63, Subpart LLL), and standards of performance for new stationary sources (NSPS) for new kilns (40 CFR Part 60, Subpart F).

As we have been discussing in our recent blogs and in our October 2014 4 The Record article, the affirmative defense provisions in Subpart LLL have been formally removed. In addition, the proposed rule:

  • Clarifies the definition of rolling average, run average and operating day (both Subpart F and Subpart LLL).
  • Restores the table of emission limits that apply until the September 9, 2015 compliance date (Subpart LLL).    
  • Provides a scaling alternative for sources that have a wet scrubber, tray tower, or dry scrubber relative to the hydrogen chloride (HCl) compliance demonstration (Subpart LLL).  
  • Adds the parameter of temperature to the startup and shutdown requirements and clarifies that the requirement of 40 CFR §63.1346(g)(3) is related to HAP control devices (Subpart LLL).
  • Clarifies language related to span values for HCl and Hg (Subpart LLL).  
  • Makes technical corrections related to inadvertent typographical errors (both Subpart F and Subpart LLL).
  • Removes 40 CFR §60.64(c)(2), which applied when sources did not have valid 15-minute continuous emissions monitoring system data (Subpart F).  This provision allowed for inclusion of the average emission rate from the previous hour for which data were available.  This provision was inadvertently added to the final rule but this substitution is not an allowable action.

U.S. EPA will accept comment on the proposed changes for 60 days after the proposed rule is published in the Federal Register (Docket ID number: EPA‐HQ‐OAR‐2011‐0817). The agency will hold a public hearing if requested.  

More on RACT 2

On Friday, November 7, 2014, the Pennsylvania Air Quality Technical Advisory Committee (AQTAC) voted 11 to 5 to approve the proposed draft final “Additional RACT Requirements for Major Sources of NOX and VOCs” (RACT 2) regulations for consideration by the Pennsylvania Environmental Quality Board (EQB) for adoption.  The EQB is the government body that adopts all of the regulations developed and proposed by the Pennsylvania Department of Environmental Protection (PADEP).  The proposed RACT 2 regulations came under significant questioning from AQTAC members and several audience participants that had requested to speak at the AQTAC meeting.  

The proposed RACT 2 regulation attracted attention from the regulated community, non-governmental organizations, U.S. EPA, and adjoining states during rule development and during the public comment period.  As expected, PADEP had to consider hundreds of comments that it received on the regulation, including some significant comments from the U.S. EPA Region 3 Office.  The final form regulation presented to AQTAC includes aggressive RACT numeric emission limits where presumptive emission limits are specified.  PADEP felt that the presumptive limits that were finalized were fair and reasonably achievable for most of the affected emission units.  Units that are not able to meet the presumptive limits have a number of compliance options including averaging with their other units or even applying for a “case-by-case” RACT determination by PADEP.

It is interesting to note that no single interested party was thrilled by the final regulations; some felt that the rules were too restrictive while others believed the rules to be too lenient.  As indicated by the margin of approval by the 11 to 5 vote (which is a very high approval ratio for such a contentious regulation) the vast majority felt it was a reasonable regulation when considering the total package.

Stay tuned as ALL4 will be presenting more detailed analysis of some of the more complicated aspects of the final RACT 2 regulations that you really should consider before making your RACT Compliance Plan.  Please contact me at (717) 822-0009 if you have any questions regarding the AQTAC approved RACT 2 regulation.   

7 Important Details about TCEQ’s Expedited Air Permitting Program

Effective November 13, 2014, the Texas Commission on Environmental Quality (TCEQ) is rolling out a new Expedited Permitting Program under Title 30 of the Texas Administrative Code (TAC), Chapter 101, Subchapter J.  The regulated community can file a TAC Chapter 106, 116 or 122 air permit application and request expedited processing. While the program is subject to TCEQ resource availability, a surcharge, and demonstration that the purpose of the application will benefit the Texas or regional economy, only time will tell if the program will help the regulated community install, modify and construct air sources in an expedited manor.  Seven (7) important details you should note about the program are below:

  1. Application: Applicants must file a new “Expedited Permitting Request” form and cover letter with the application: “Form APD-EXP.” For companies that have pending applications that wish to take part in the expedited program, Form APD-EXP and a cover letter, should be submitted to the Air Permits Initial Review Team (APIRT).
  2. ePermits: Applicants must use TCEQ’s ePermits for permits by rule (PBRs) and standard permits that are not subject to public notice. [Stay tuned… ePermits is currently not available.  TCEQ will notify the public when it becomes available.]
  3. Acceptance/Denial: TCEQ will accept or deny the expedited request and will notify the entity via letter.  Those accepted into the program will have 10 days to submit the surcharge.  Form APD-APS should be utilized to submit the payment.
  4. Surcharge: Initial surcharges range from a flat rate non-refundable $500 for PBRs and Standard Permits (not requiring public notice) to $20,000 for Federal New Source Review (NSR) Permits – PSD including greenhouse gases (GHGs), Nonattainment NSR, Plantwide Applicability Limits (PAL).  Standard Permits and Title V General Operating Permits (GOP) are $3,000, while Title V Site Operating Permit (SOP) and case by case NSR permits are $10,000.  [Note: there is no additional fee for an NSR case-by-case permit, which accompanies a Federal NSR Permit; only the Federal NSR permit surcharge applies.]
  5. Refunds: TCEQ will issue refunds for projects with a remaining surcharge balance amount of $450 or more.  No refunds will be issued for PBRs and standard permits with no public notice.  Conversely, TCEQ will notify the applicant prior to the initial surcharge amount being depleted.  The applicant can choose to provide additional funding or if the applicant elects not to provide additional funding to continue with the expedited process, the application will revert to a non-expedited project and will be reviewed according to standard agency timeframes.  Essentially one could liken it to a budget that TCEQ has to work with and if they go over, the applicant has to pay a “change order” to remain in the expedited program.
  6. Timing: TCEQ qualifies the time to complete the air permit as dependent on many factors:  APD workload, staff availability, application complexity, public participation, application completeness and thoroughness (i.e., sufficient administrative and technical detail).  No specific timing has been provided by TCEQ to date.
  7. Recommendations: TCEQ suggests (and ALL4 agrees) several actions to speed up the process.  Hold a pre-application meeting to discuss the project, regulatory applicability including beset available control technology (BACT), air dispersion modeling, project timing, etc.  Submit a draft application for preliminary TCEQ review. As applicable, submit a draft modeling protocol for review by the TCEQ Air Dispersion Modeling Team (ADMT).

For more information on the TCEQ Expedited Air Permitting Program, reach out to ALL4’s Houston Office Director, Kristin Gordon at kgordon@all4inc.com or 281.937.7553.

So What’s in the Final Version of the Pennsylvania RACT 2 Rule? We are glad that you asked.

Okay folks, the Pennsylvania Department of Environmental Protection (PADEP) released the final form version of the RACT 2 rule to the Air Quality Technical Advisory Committee (AQTAC) in advance of the supplemental AQTAC RACT 2 meeting scheduled for November 7, 2014 in Harrisburg.  After several years of development, the final form version of the rule is now available and was posted on the AQTAC website on November 4, 2014. Understanding that most facilities will not be represented at the November 7th AQTAC meeting, I have taken a “quick” read through of the final form rule and noticed many clarifications, revisions, and several additions that are noteworthy and may be of interest to potentially affected facilities.  Please note that ALL4 will be at the meeting and will be available to discuss and answer questions regarding the final form RACT 2 rule and its potential impact on affected facilities.

Also note that that this blog post is intended to identify changes between the proposed RACT 2 rule and the final form version as of November 4, 2014.  Additional rule analyses will be presented in future ALL4 blog posts.  A summary of my line-by-line observations regarding the revisions to the proposed RACT 2 rule is provided below.  Here we go:

25 Pa. Code §121 – Definitions

The final form rule includes revisions to the definitions of Major NOX emission facility, Major VOC emitting facility, and stationary internal combustion engine.

The most curious revisions were to the definitions of Major NOX emission facility and Major VOC emitting facility, which included a clarification of the definitions for facilities located in Bucks, Chester, Delaware, Montgomery, or Philadelphia counties.  The clarification states that the lower 25 ton per year major source threshold for new source review (NSR) permitting does not apply to a facility that is subject to §§129.96-129.100 (i.e., the “original” RACT rule). Therefore, the NOX emission threshold of 100 tpy applies statewide for applicability to the new RACT regulations.

The stationary internal combustion engine definition excludes combustion turbines, certain nonroad engines, engines used to propel vehicles and aircraft, and engines associated with temporary sources such as compressors or generators.

Several new definitions were added to §121 as a result of them being used in RACT 2.  There are new definitions for process heater, regenerative cycle combustion turbine, simple cycle combustion turbine, and stationary combustion turbine (which includes turbines mounted on a vehicle for portability).

25 Pa. Code §129.96 – Applicability

The applicability provisions of §129.96(a) and (b) include minor clarifications.  §129.96(c) was added to exempt NOX and VOC sources with potential NOX and/or VOC emissions of less than one (1) ton per year that are located at major NOX and/or VOC emitting facilities from the RACT 2 rule.

§129.96 (k)(2)(v) – Provides for a compliance date of up to 3 years after approval of a petition for an alternate compliance schedule through issuance in a plan approval or operating permit.

25 Pa. Code §129.97 – Presumptive RACT requirements, RACT emission limitations and petition for alternative compliance schedule

Changes to §129.97 include minor clarifications to §129.97(a) and a revision to §129.97(b), changing the requirement for boilers to conduct an annual tune-up to a biennial tune-up and referencing the tune-up requirements specified at 40 CFR 63.11223 (i.e., area source boiler MACT).

§129.97(b)(2) is a new provision that covers combustion units equipped with oxygen trim systems (that would otherwise be subject to a biennial tune-up) and specifies that such units be inspected every five (5) years.  §129.97(b)(2)(i), (ii), and (ii) specify the nature of the inspections for such units.

§129.97(c) has been clarified and identifies presumptive RACT as “install, operate, and maintain the source in accordance with the manufacturer’s specifications and with good operating [vs. engineering in proposed rule] practices”.

The list of sources subject to presumptive RACT 2 requirements has been expanded in §129.97(c)(1) through (8) to include (c)(1) and (2) which identify “de-minimis” sources of NOX and VOC (e.g., less than 5 TPY NOX and/or less than 2.7 TPY VOC) as subject to presumptive RACT.

§129.97(c)(7) [formerly (c)(5)] covering fuel burning equipment, gas turbines, and internal combustion engines with an annual capacity factor of less than 5% has been revised to define an annual capacity factor for combustion unit and electric generating units.

§129.97(d) has been clarified to reflect the “install, operate, and maintain the source in accordance with the manufacturer’s specifications and with good operating [vs. engineering] practices” language discussed earlier.

§129.97(f) has been revised to reflect a new NOX RACT 2 standard of 180 ppmvd NOX @ 7% oxygen for municipal solid waste combustors and §129.97(f)(1) and (2) have been deleted.

Combustion Units, Process Heaters, and Combustion Sources

The numeric RACT 2 limit of §129.97(g)(1)(i) for natural gas fired combustion units or process heaters with a rated heat input of greater than or equal to 50 MMBtu/hr has been revised to 0.10 lb/MMBtu from the previous 0.08 lb/MMBtu standard.

§129.97(g)(1)(iii) for residual oil-fired combustion units or process heaters with a rated heat input of greater than or equal to 50 MMBtu/hr has been revised to include “other liquid fuel” (i.e., any liquid fuel that is not distillate oil because the term “other liquid fuel” is not defined).

§129.97(g)(1)(vi) covering coal-fired combustion units with a rated heat input of greater than 250 MMBtu/hr has been revised.  Specifically the numeric limit in §129.97(g)(1)(vi)(A) for circulating fluidized bed combustion units has been revised to 0.16 lb NOX /MMBtu from 0.20 lb NOX /MMBtu.

§129.97(g)(1)(vi)(C) has been clarified to cover “any other type of coal fired combustion unit.”

§129.97(g)(1)(vii) is new and specifies a limit of 0.25 lb NOX /MMBtu for “any other type of solid fuel fired combustion unit with a rated heat input equal to or greater than 50 MMBtu/hr.”

§129.97(g)(1)(viii) is new and limits NOX emissions from combustion units with selective catalytic reduction (SCR) systems, operating with an inlet temperature equal to or greater than 600° F, to 0.15 lb NOX /MMBtu.  It is noted that the limit applies during SCR system bypasses as well.

§129.97(g)(1)(ix) is new and requires combustion units with selective non catalytic reduction (SNCR) systems to operate said SNCR systems when the reagent injection area temperature is equal to or greater than 1,600° F.

Combustion Turbines

The numeric NOX limit in §129.97(g)(2)(i)(B) for fuel oil-fired combined cycle or combined heat and power combustion turbines with a rated output equal to or greater than 1,000 bhp and less than 180 MW has been revised to 96 ppmvd NOX @15% oxygen from 75 ppmvd @ 15% oxygen.

The numeric VOC limit in §129.97(g)(2)(i)(B) for natural gas or noncommercial gaseous fuel-fired combined cycle or combined heat and power combustion turbines with a rated output equal to or greater than 1,000 bhp and less than 180 MW has been revised to 9 ppmvd VOC as propane @15% oxygen from 2 ppmvd VOC as propane @ 15% oxygen.

§129.97(g)(2)(iii)(A) through (D) is new and applies to simple cycle or regenerative cycle combustion turbines with a rated output equal to or greater than 1,000 bhp and less than 6,000 bhp.

§129.97(g)(2)(iii)(A) applies to §129.97(g)(2)(iii) affected units that fire natural gas or noncommercial gaseous fuel and limits NOX emissions to 150 ppmvd  @ 15% oxygen.

§129.97(g)(2)(iii)(B) applies to §129.97(g)(2)(iii) affected units that fire fuel oil and limits NOX emissions to 150 ppmvd @ 15% oxygen.

§129.97(g)(2)(iii)(C) applies to §129.97(g)(2)(iii) affected units that fire natural gas or noncommercial gaseous fuel and limits VOC emissions to 9 ppmvd VOC as propane @ 15% oxygen.

§129.97(g)(2)(iii)(D) applies to §129.97(g)(2)(iii) affected units that fire fuel oil and limits VOC emissions to 9 ppmvd VOC as propane @ 15% oxygen.

§129.97(g)(2)(iv)(A) through (D) applies to simple cycle or regenerative cycle combustion turbines with a rated output of greater than 6,000 bhp.

The numeric emission limit specified by §129.97(g)(2)(iv)(B), which applies to §129.97(g)(2)(iv) affected units that fire fuel oil, has been revised to 96 ppmvd NOX @ 15% oxygen from 75 ppmvd  @ 15% oxygen.

Stationary Internal Combustion Engines

§129.97(g)(3)(i)(A) covering lean burn engines with a rating equal to or greater than 500 bhp has been revised to include non-commercial gaseous fuel.

§129.97(g)(3)(i)(B) covering lean burn engines with a rating equal to or greater than 500 bhp has been revised to include non-commercial gaseous fuel and the numeric VOC limit has been revised to 1.0 gram VOC/bhp-hr excluding formaldehyde from 0.4 gram VOC/bhp-hr.  The formaldehyde exclusion is new.

§129.97(g)(3)(iii)(A) and (B) regulating NOX and VOC emissions, respectively from rich burn engines with a rating equal to or greater than 500 bhp have been revised to include non-commercial gaseous fuel.

Schedule

§129.97(k)(2)(v) regarding final compliance dates for facilities that cannot meet a RACT 2 requirement without installation of an air cleaning device has been revised to allow the facility to petition the PADEP for an alternative compliance date up to three (3) years following written approval of the petition by PADEP.

25 Pa. Code §129.98 – Facility-wide or system-wide NOx emissions averaging

§129.98(a) detailing the averaging provisions of the rule has been revised to specify that “system wide emissions averaging must be among sources under common control of the same owner or operator within the same ozone nonattainment area” in Pennsylvania.

§129.98(b) has been revised to require that a written NOX emissions averaging plan must be submitted as part of an application for an operating permit modification or a plan approval.

§129.98(c) has been revised to include clarifying language.

§129.98(d) has been clarified and has been revised to remove the “90% clause” where the 30 day rolling average NOX emissions could not exceed 90% of the allowable NOX emissions associated with the group of sources.

The calculation procedures of §129.98(e) have been revised to remove the “90% clause” and have been clarified.  §129.98(f) through (m) has been revised to include clarifying language.

In addition, §129.98(m) has been revised to specify that the owner/operator of the air contamination sources included in a facility-wide or system-wide NOX emissions averaging plan shall be liable for a violation of an applicable NOX RACT requirement or NOX RACT emission limitation at each source included in the NOX emission averaging plan.

25 Pa. Code §129.99 – Alternative RACT proposal and petition for alternative compliance schedule

§129.98(a) was revised to remove references to facility-wide or system-wide NOX averaging plans.

§129.98(h) was revised to include clarifying language.

§129.98(h)(2)(v) was revised to specify a final compliance date as soon as possible, but not later than three (3) years after PADEP approval of a petition for an alternative compliance schedule and included case-by-case approval provisions in cases where the petition is for the replacement of an existing source.

25 Pa. Code §129.100 – Compliance demonstration and recordkeeping requirements

§129.100(a)(1), regarding air contamination sources equipped with CEMS, was revised to exclude Portland cement kilns and municipal waste combustors.

§129.100(a)(1)(i)(A) through (C) is new and was added to specify how a 30-day rolling average emission rate for a combustion unit shall be calculated and expressed.

§129.100(a)(1)(ii) is new and was added to specify that emissions shall be calculated for each consecutive day.

§129.100(a)(1)(iii) is new and was added to specify that emission calculations shall include emissions associated with startup, shutdown and malfunction.

§129.100(a)(2), regarding air contamination sources not equipped with CEMS, was revised to specify that compliance emission tests must be conducted every five (5) years.

§129.100(a)(3) is new and specifies that for Portland cement kilns equipped with a CEMS, monitoring of clinker production in accordance with 40 CFR §63.1350(d) (Cement MACT) is required.

§129.100(a)(4) is new and specifies that for municipal waste combustors equipped with CEMS, monitoring and testing must be in accordance with Chapter 139 Subchapter C requirements.

§129.100(d)(3) regarding the five (5) year records retention requirement has been removed.

§129.100(e) and (f) have been revised to reference the beginning of the compliance date specified in §129.97(a).

§129.100(g) has been revised to remove the reference to a “permanently bound log book” language and replace a second reference of “log book” with the term “record.”

§129.100(j) has been added to reinstate the five (5) year record retention requirement and availability of such records for PADEP inspection.

Conclusion

As outlined above, PADEP has made numerous revisions, clarifications, and additions to the final form RACT 2 rule.  ALL4 is very familiar with the development and the content of the rule and will be attending the November 7, 2014 AQTAC meeting.  We are available to discuss potential RACT 2 applicability, schedule, impacts, and options for your facility.  Please contact Roy Rakiewicz at (610) 933-5246 ext. 127 or at rrakiewicz@all4inc.com.   Thanks for reading.

The Reality and Implications of SSM and NESHAPs

ALL4’s project experience often involves industrial clients that are subject to one (1) or more of the National Emission Standards for Hazardous Air Pollutants (NESHAPs) for source categories (40 CFR Part 63). NESHAPs regulate emissions of hazardous air pollutants (HAPs) either directly or through the use of a surrogate pollutant (e.g., carbon monoxide in lieu of regulating a vast number of organic HAPs that can be emitted from a combustion process). NESHAP-affected facilities must comply with a given numerical emission standard for the HAPs regulated by the applicable Part 63 subpart – no surprise there. However, determining the applicability of the numerical limits during atypical operating modes has been a complicated issue since the inception of NESHAP standards in the early 1990s. In this article, ALL4 looks at how the NESHAPs have presented an ever-evolving challenge that has raised serious questions about the compliance obligations of an affected facility. Specifically, this article addresses not what applies during “normal” operations, because that is typically well understood and black or white. Rather, we address what recent changes to the NESHAPs mean for compliance during operational periods outside of normal operations, namely periods of startup, shutdown, and malfunction (SSM).

How Did We Get Here?

The SSM provisions in the NESHAP rules originated in 1994, where 40 CFR Part 63, Subpart A specifies a “general duty to minimize emissions during startup, shutdown and malfunction events.” This provision provided NESHAP-affected sources with a conditional exemption from continuous compliance with the applicable emission standard during SSM events. To use the exemption, sources were required to comply with the general duty clause to reduce emissions to the “greatest extent possible,” consistent with safety and good air pollution control practices during SSM events. To satisfy the exemption provisions, sources were directed to develop a plan (SSM Plan) detailing possible SSM events, including procedures that would be followed to minimize emissions, identified corrective measures for addressing malfunctions, and summarizing the recordkeeping and reporting procedures that the sources would use to document compliance with the exemption provisions. The SSM Plan was also incorporated by reference into a facility’s Title V operating permit. Sources were required to submit semiannual reports of SSM events to their permitting authority.

In 2002, the U.S. Environmental Protection Agency (U.S. EPA) removed the requirement that a facility’s Title V operating permit incorporate the SSM Plan. Moving forward, the requirement was solely to develop and implement an SSM Plan. This action created an issue because the SSM Plan was no longer part of the Title V operating permit (and not eligible for a permit shield) and the plan could be changed without modifying the permit. Therefore, the SSM Plan was technically no longer subject to agency approval. Ultimately, facilities were required make their plans available for review upon request. Then, in 2006, the requirement to implement an SSM Plan was eliminated by U.S. EPA. It’s no wonder that confusion around SSM feels like it has been around forever.

The next major shift in the SSM provisions occurred in 2008 when the D.C. Circuit Court vacated the SSM exemption provisions for NESHAPs. In vacating the exemption, the court decided that the general duty to minimize emissions during SSM events was not consistent with Section 112(d) of the Clean Air Act (CAA) because the CAA requires that a Section 112 standard must apply continuously. Following the court’s findings, U.S. EPA issued guidance that is known as the “Kushner Guidance Letter” that was intended to clarify which SSM events are exempt from NESHAPs. The Kushner Guidance Letter stated that the vacatur of the SSM exemption was immediately effective upon issuance of the mandate (which occurred in October 2009) for only those NESHAPs that both incorporate the specific vacated exemption provisions by reference [40 CFR §63.6(f)(1) and (h)(1)] and contain no other text that provides SSM protections. It is interesting to note that these vacated SSM provisions remain in the electronic CFR today. However, U.S. EPA has repeatedly stated that these conditions are null and void. For example, see the first full paragraph on page 2 of the Kushner Guidance Letter. In addition, please refer to the October 16, 2014 Federal Register (Vol. 79, No. 200), pages 62137 and 62138 (1st column; 1st and 2nd paragraphs, and 1st paragraph, respectively).

 

The following table identifies some of the more common NESHAPs affected, and not affected, by the 2009 vacatur (at the time of the issuance of the mandate).

NESHAPs Immediately Affected by Vacatur NESHAPs Not Immediately Affected by Vacatur
Subparts S & MM: Pulp & Paper Subparts F, G, H, I: HON for SOCMI
Subpart T: Halogenated Solvent Cleaners Subpart GGG: Pharmaceutical Manufacturing
Subpart X: Secondary Lead Smelting Subparts CC and UUU: Petroleum Refineries
Subpart GG: Aerospace Manufacturing Subpart DDDD: Plywood & Composite Wood Products
Subpart KK: Printing & Publishing Subpart FFFF: MON
Subpart LLL: Portland Cement Subpart YYYY: Combustion Turbines
Subpart RRR: Secondary Aluminum Subpart ZZZZ: RICE
Subpart JJJJ: Paper & Other Web Coating Subpart DDDDD: Major Source Boilers
Several area source NESHAPs in the metals, chemicals, and coating subcategories Subpart JJJJJJ: Area Source Boilers

At this point, you might be asking yourself…did the mandate affect any NESHAP that I’m subject to? To answer that question, consider the following as an illustrative example. Table 1 of Subpart MM (NESHAP for Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite, and Stand-Alone Semichemical Pulp Mills) indicates that 40 CFR §63.6(f)(1) and (h)(1) are applicable to the affected sources. Furthermore, Subpart MM does not contain explicit language exempting emissions during SSM events. Therefore, barring any other considerations the Subpart MM affected sources are required to be in compliance with emission limits at all times, even during SSM events.

By contrast, Subpart YYYY (NESHAP for Stationary Combustion Turbines) is an example of a subpart that was not immediately affected by the mandate. Subpart YYYY also contains a table (Table 7) that identifies each part of the general provisions that are applicable. The table shows that the vacated SSM general provision of 40 CFR §63.6(f)(1) applies [the rule does not have an opacity standard so 40 CFR §63.6(h)(1) is not applicable]. However, 40 CFR §63.6105(a) states “You must be in compliance with the emission limitations and operating limitations which apply to you at all times except during startup, shutdown, and malfunctions.” Therefore, the fact that the SSM exemption in the general provisions was made null and void does not impact SSM exemptions for Subpart YYYY (until if and when it gets updated) because the SSM exemption is explicit in the rule language. As a result of the litigation surrounding the SSM vacatur, U.S. EPA is, in general, addressing the SSM vacatur by revising individual NESHAPs that include explicit SSM exemption provisions during rule revisions associated with the required CAA Section 112(d)(6) eight-year residual risk and technology (RTR) review process.

For those NESHAP subparts that were apparently immediately affected by the 2009 SSM mandate, there may be a valid argument to support that a facility was not immediately affected. The argument is based on the premise that the vacated SSM exemption provisions remained in effect during the term of an affected facility’s Title V operating permit, if the permit specified SSM exemption language itself (i.e., not just the same reference), and a Part 70 permit shield is in place. We’ll continue exploring these implications later in the article.

Affirmative Defense

A separate, but related concept to SSM for consideration is affirmative defense. In 1999, U.S. EPA issued a policy document related to excess emissions in state implementation plans (SIPs) in which it discussed if, and how, a state may go beyond its enforcement discretion approach and include a provision in its SIP that would excuse a source from penalties if the source could demonstrate that it met certain objective criteria (referred to as an affirmative defense). Affirmative defense has become a hot topic lately, particularly with respect to NESHAP, but first let’s continue with a review of this history behind affirmative defense.

The 1999 policy clarified that states have the discretion to provide a defense to actions for penalties brought for excess emissions that arise during certain SSM events. An affirmative defense provision may only apply to actions for penalties, but not to actions for injunctive relief. An affirmative defense does not remove responsibility from an incident, but it protects the responsible party from administrative or monetary penalties. This restriction ensures that authorities remain able to protect ambient air quality standards and Prevention of Significant Deterioration (PSD) increments.

In the past several years, U.S. EPA has included affirmative defense provisions in several NESHAPs. From a cursory search of 40 CFR Part 63, we identified at least 11 NESHAPs with affirmative defense provisions included as a distinct subsection in a given subpart. However, in 2014, the D.C. Circuit Court vacated the affirmative defense provisions in the NESHAP for the Portland Cement Manufacturing Industry (40 CFR Part 63, Subpart LLL). The court found that U.S. EPA lacked authority to establish affirmative defense for private civil suits. The D.C. Circuit Court’s ruling does not eliminate the use of affirmative defense in private civil suits in which plaintiffs seek to have violators pay monetary penalties. The ruling shifted the authority to allow an affirmative defense from the U.S. EPA to the courts. This action has set a precedent for recently proposed updates to NESHAPs (e.g., NESHAP for Mineral Wool Production and Wool Fiberglass Manufacturing; NESHAP for Petroleum Refineries), for which previous versions of the rules included affirmative defense provisions that have since been removed as part of RTR reviews. U.S. EPA has indicated that this process will continue as subsequent NESHAPs are updated.

Affirmative defense continues to make news, as U.S. EPA has recently issued a supplemental notice of proposed rulemaking that means states will not only be prohibited from allowing excess emissions during SSM events, as spelled out in its February 2013 SSM-related SIP call, they will also be prohibited from allowing regulated facilities to use the affirmative defense to avoid civil penalties for such emissions. Therefore, the importance of knowing the implications of SSM regulatory actions becomes critical to environmental managers. We’ll explore the details in the following section of the article.

Operating Permit SSM Implications

Pursuant to §70.6(a)(1), Title V operating permits must include “emission limitations and standards, including those operational requirements and limitations that assure compliance with all applicable requirements at the time of permit issuance” or “all applicable requirements”. As we know, applicable requirements under the Clean Air Act (CAA) for a given facility typically originate from a state or local implementation plan (SIP), from a federal regulation such as NESHAP, or from a federal enforceable permit condition associated with a construction permit. Applicable requirements can include emission limits, work practice standards and the associated monitoring, testing, recordkeeping, and reporting provisions associated with the limits or work practice standards. SSM provisions are often associated with NESHAP, New Source Performance Standards (NSPS), and SIP requirements, and the SSM provisions may exempt the source from compliance with numeric standards during SSM events. Therefore SSM provisions may be included in Title V operating permits as source specific “stand alone” conditions, facility-wide general requirements, or included within specific monitoring, recordkeeping or reporting requirements. Needless to say, reconciling the various court decisions, mandates, and U.S. EPA guidance memoranda with a given facility’s operating permit is not exactly a straight forward proposition. Furthermore, the timing of the 2009 SSM mandate occurred when many facilities were in the midst of renewing their Title V operating permits. Clear guidance regarding how to address the 2009 SSM mandate in a renewal application was not issued by U.S. EPA or state or local permitting agencies, which further complicated the matter as time has passed with no specific action to address the issue.

As mentioned above, the 2009 SSM mandate immediately affected the 40 CFR Part 63 subparts that included references to the SSM exemptions of 40 CFR Part 63, Subpart A at 40 CFR §63.6(f)(1) and §63.6(h)(1), making those provisions null and void, even though those provisions remain in the online version of the rules. Conceptually, affected NESHAP sources were required to be in compliance with emission limits at all times including SSM events following the mandate. However, if a Title V operating permit included specific SSM exemption language for a NESHAP source affected by the SSM mandate and a Part 70 permit shield pursuant to 40 CFR §70.6(a)(1), a strong argument could be made that the SSM provisions of the Title V permit for the NESHAP source would remain in effect for the term of the permit. Many Title V operating permits were reopened and revised to reflect the SSM mandate for affected NESHAP sources because state regulatory authorities are obligated to reopen Title V operating permits for cause [40 CFR §70.7(f)(1)(i)] to reflect new applicable requirements. However, in many other instances, this just does not happen.

Of more concern, particularly given the fact that many times the state regulatory authorities do not reopen Title V operating permits just to add in new applicable requirements, is the fact that 40 CFR §70.5(b) obligates owners and operators to supplement or to correct information as necessary to address requirements that become applicable to a source after the date that a complete application was filed, but prior to the issuance of a draft permit. This provision could affect facilities with sources impacted by the SSM mandate that are operating for extended periods under an application shield due to somewhat common delays in the regulatory agency review/issuance of operating permit renewals. In such instances, the owner/operator may be obligated to supplement or correct their Title V operating permit application to remove the SSM provisions associated with an affected NESHAP source.

Similarly, incorporating a construction permit for a significant modification into a Title V operating permit (even for a project unrelated to a NESHAP) can also trigger the need to revise the permit to reflect the impact that the SSM mandate had on affected NESHAP sources at the facility. Therefore, if you have not yet updated or supplemented your Title V operating permit application, the next construction permit project at your facility may be an opportunity to address the potential lingering issue.

The 40 CFR Part 63 subparts that were not immediately affected by the SSM mandate each included specific language that exempted sources from complying with numerical standards during SSM events and those standards were not immediately affected by the mandate. However, note that the mandate will eventually impact all NESHAPS as U.S. EPA is addressing the SSM vacatur in each of the 40 CFR Part 63 subparts that were not immediately impacted as part of their RTR review process. In essence, the specific SSM provisions remain applicable to such sources until the subpart has been revised. Upon promulgation, the revised NESHAP subparts will apply to affected sources regardless of how such sources are reflected in the Title V permit.

What options does U.S. EPA have when developing new or reevaluating current rules if emissions that exceed a numerical emission limitation during periods of SSM can no longer be considered exempt? First, in some instances U.S. EPA has established distinct modes of operations for evaluation. These modes of operation have included periods of startup, shutdown, and normal operation. Note that U.S. EPA did not define the term “malfunction” as a distinct operating mode resulting in no special considerations for periods of excess emissions that are a result of malfunctions. Consistent with the process for developing numerical emission standards for periods of normal operation, U.S. EPA could establish different numerical emission standards for periods of startup and shutdown. However the emission data for most regulated pollutants are not available during periods of startup and shutdown and virtually impossible to obtain.

In response, U.S. EPA has created work practice standards that sources must comply with during periods of startups and shutdowns in lieu of numerical limits. For example, 40 CFR Part 63, Subpart UUUUU (NESHAP for Coal- and Oil-Fired Electric Utility Steam Generating Units, also referred to as “Utility MATS”) requires the use of clean fuels (i.e., natural gas, distillate oil, or a combination of natural gas and distillate oil) during periods of startup of an affected unit. In addition, an affected emissions unit must first engage all of the applicable control technologies (except dry scrubber and selective catalytic reduction) when converting to firing coal, residual oil, or solid oil-derived fuel. Using the example above, many affected facilities may not have sufficient natural gas (i.e., clean fuel) capacity to bring affected units to the temperatures necessary to engage certain air pollution control devices (APCDs) such as electrostatic precipitators (ESPs), which when operated at temperatures less than the temperatures recommended by the manufacturer, could create a safety risk. Thus, an affected unit may not be able to reach the temperatures necessary to engage certain APCDs without the combustion of the primary fuel (i.e., coal).

Another important aspect of the work practice standard requirements for periods of startup and shutdown is how U.S. EPA defines the boundaries of startup and shutdown. For example, 40 CFR Part 63, Subpart DDDDD (NESHAP for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters; also known as “Boiler MACT”) defines the end of startup “when any of the steam or heat from the boiler or process heater is supplied for heating, and/or producing electricity, or for any other purpose.” Thus, the startup period could end and normal operation could begin well before an affected facility may consider themselves as in normal operations. This could mean that an affected unit will be transitioning to a primary fuel after startup (by definition) has ended and the numerical emission limitation of normal operation is in effect.

In the past, U.S. EPA allowed facilities to define periods when startup begins, when startup ends and normal operation begins, when normal operation ends and shutdown begins, and when shutdown ends in their SSM Plan. U.S. EPA has now defined periods of startup and shutdown in new or revised rules with the introduction of the work practice standard requirements. These definitions can be restrictive and even not applicable for affected units. In response to the proposed Utility MATS rule, U.S. EPA received significant comments concerning startup and shutdown definitions causing U.S. EPA to reconsider these definitions. Keep in mind that many facilities may also have startup and shutdown definitions in their Title V Operating Permit that will most likely be different then the definition ultimately proposed by U.S. EPA.

Action Items

Now that you have an appreciation of the sordid history of SSM regulations, and the understanding of the potential compliance and permitting implications with respect to your facility’s permit and affected NESHAP sources, the following provides a summary of recommended actions that you (and likely, your corporate counsel) should consider.

The first action item may seem obvious, but without establishing a solid foundation, you cannot expect to build a successful compliance approach.

1. Identify and understand the NESHAPs that are applicable to your facility.

Determine if those NESHAPs incorporate the vacated SSM General Provisions by reference only or if they contain a similar exemption directly within the NESHAP (refer to the illustrative example above, as well as to the Kushner Letter). Remember that the SSM vacatur occurred five (5) years ago; therefore, review the current version of your applicable NESHAPs [40 CFR Part 63, which is organized in subsections due to the size of 40 CFR Part 63; by knowing the numerical citation of your NESHAPs (e.g., §63.741 for Aerospace Manufacturing and Rework Facilities), you can select the proper subsection for SSM-related requirements.

2. Identify the SSM standards for each NESHAP that applies to your facility and develop answers for the following questions:

  • Are the SSM standards still in effect?
  • Are they numerical emission limits specifically for startup/shutdown, with different limits for normal operation or are they work practice standards such as using certain fuels during periods of startup?
  • Can you actually use these fuels during start-up?
  • Do you understand what startup and shutdown procedures are required of you? You may have previously defined these procedures in your SSM Plan, but the contents of your SSM Plan may no longer be relevant.
  • Does the NESHAP now contain an explicit definition of startup and shutdown, which may not be consistent with current operating procedures?
  • Do your operators understand these new requirements?
  • Do you need to conduct additional training?
  • Are operating procedures and related plans up to date?

3. Review your operating permit for SSM related conditions in light of the discussion in the Operating Permit SSM Implications section above:

  • Compare the SSM related operating permit conditions to the current NESHAP language.
  • Understand if the vacatur has created new applicable requirements for your facility.
  • Evaluate if changes to your operating permit are warranted.
  • Understand when and how these permit changes need (or needed) to happen.
  • Conduct an audit of your operating permit as it relates to applicable NESHAPs and their SSM requirements.  Consider using a third-party and counsel for liability protection, if necessary.
  • If a Title V application (e.g., renewal application or a modification application) was submitted after the vacatur, did the application address the impact of the SSM vacatur?

4. If you still maintain and implement an SSM Plan (despite the 2006 action that eliminated the need for implementing a plan), Consider converting that SSM Plan to a Malfunction Plan that specifically addresses affirmative defense (until such time those provisions are removed from your NESHAP).

  • Regardless, it is a good practice to have standard operating procedures for SSM events as part of a compliance management program.

5. Evaluate your practices regarding the aforementioned NESHAP reporting requirements.

  • Have you continued to prepare and submit your semi-annual NESHAP reports as if nothing has changed since the vacatur? If so, you may want to revisit your semi-annual NESHAP reporting requirements and procedures to verify SSM events are correctly addressed, if necessary at all.

6. Maintain an awareness of SSM-related changes in NESHAPs, NSPS, and SIPs.

  • Follow our blogs and 4 The Record articles. Talk to colleagues in your industry sector. Attend trade group or professional society meetings. But whatever you do, take advantage of the regulatory process, which allows the regulated community to review and comment on proposed rulemakings at various stages in the process.

Parting Thoughts

SSM continues to be a challenging topic for environmental managers and the regulated community as a whole. Because of the considerable amount of litigation and delays in implementing and issuing regulatory changes and updates [remember, 40 CFR §63.6(f)(1) and (h)(1) are still in the CFR despite being vacated five (5) years ago], the inner workings of SSM to a facility’s compliance approach has never been more complicated. We’ve identified several technical SSM issues that we have experienced in our projects. We also suspect there are many other layers that we have not uncovered, and some of you may have different opinions on the actions and considerations presented in this article. We encourage you to share your experiences with us so we all can learn from each other, including by posting questions and comments directly on our website. In addition, please do not hesitate to contact one (1) of the authors of this article.

U.S. EPA’s Area Source Boiler MACT Tool

On October 14, 2014, U.S. EPA released an Area Source Boiler MACT Regulation Navigation Tool to help guide owners and operators of area source boilers through their regulatory requirements under 40 CFR Part 63, Subpart JJJJJJ (National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers). The interactive tool leads the user through a series of questions that ultimately direct the user to a PDF of the boiler’s regulatory requirements.  

As a member of the 4 Rules/Boiler MACT team at ALL4, I gave the tool a try to see if U.S. EPA simplified the process of determining a boiler’s Area Source Boiler MACT regulatory requirements. 

The tool begins by defining important terms [i.e., boiler, categories (oil, gas, biomass, limited-use, seasonal), hot water heater, and residential] and then questions the user on their facility and boiler. Next, the tool tries to decipher if the boiler falls into one of the many Area Source Boiler MACT exemptions. At any step, if the user’s boiler is determined to be exempt from Area Source Boiler MACT, the program will inform the user that the boiler is exempt from Area Source Boiler MACT requirements and prompt the user to exit the tool. If there are no exemptions that apply to the user’s boiler, the tool will request additional information regarding the boiler’s size, construction date, and category. After the user has made it through all of the questions, the user is directed to a webpage that contains a PDF of the boiler’s Area Source Boiler MACT requirements. 

I thought the tool was extremely easy to use and helpful. Unfortunately, the resulting PDF was very lengthy, which could make it difficult for a user to easily interpret their results. 

ALL4’s thoughts? Give the tool a try! Feel free to give us a call if you need help using the tool or deciphering your results.

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