33 Late Air Toxics Rules, 2 Court Decisions, Reduced U.S. EPA Resources, and 6 Things Industry Should Do

The subject of overdue air toxics rules, specifically the risk and technology review (RTR), has gotten its fair share of air time in federal district courts of late.  At the same time, it’s been nearly impossible not to hear about U.S. EPA budget and program cuts.  So what were the court cases and decisions?  When and how will U.S. EPA get the 33 overdue air toxics rules completed?  What does this mean for your facility’s operations if you’re subject to one (or more) of the overdue air toxics rules?  What can impacted facilities do?

The Cases

Judge Tanya Chutkan heard California Communities Against Toxics, et al, vs. Scott Pruitt (CCAT) in the United States District Court for the District of Columbia (DC Circuit Court).  The case addressed 20 overdue air toxics standards [i.e., National Emission Standards for Hazardous Air Pollutants (NESHAP), also referred to as Maximum Available Control Technology (MACT) Standards, found in 40 CFR Part 63] that were last promulgated between 2001 and 2004 and, per the Clean Air Act (CAA), were required to be updated via the RTR rulemaking process no later than eight years after prior promulgation (i.e., between 2009 and 2012).  The MACT Standards and their applicable subpart include:

• Solvent Extraction for Vegetable Oil Production (GGGG)
• Boat Manufacturing (VVVV)
• Surface Coating of Metal Coil (SSSS)
• Cellulose Products Manufacturing (UUUU)
• Ethylene Production (YY)
• Paper and Other Web Coating (JJJJ)
• Municipal Solid Waste Landfills (AAAA)
• Hydrochloric Acid Production (NNNNN)
• Reinforced Plastic Composites Production (WWWW)
• Asphalt Processing and Asphalt Roofing Manufacturing (LLLLL)
• Integrated Iron and Steel Manufacturing Facilities (FFFFF)
• Engine Test Cells/Stands (PPPPP)
• Site Remediation (GGGGG)
• Miscellaneous Organic Chemical Manufacturing (FFFF)
• Surface Coating of Metal Cans (KKKK)
• Surface Coating of Miscellaneous Metal Parts and Products (MMMM)
• Organic Liquids Distribution (Non-Gasoline) (EEEE)
• Stationary Combustion Turbines (YYYY)
• Surface Coating of Plastic Parts and Products (PPPP)
• Surface Coating of Automobiles and Light-Duty Trucks (IIII)

Similarly, in Blue Ridge Environmental Defense League, et al, vs. Scott Pruitt (Blue Ridge), Judge Christopher Cooper heard the case in the DC Circuit Court. This case addressed 13 (different) overdue MACT Standards that were last promulgated in the 2002 to 2004 range and were due to be updated via the RTR rulemaking process between 2010 and 2012. The MACT Standards and their applicable subpart include:

• Leather Finishing Operations (TTTT)
• Wet-Formed Fiberglass Mat Production (HHHH)
• Rubber Tire Manufacturing (XXXX)
• Surface Coating of Large Appliances (NNNN)
• Friction Materials Manufacturing Facilities (QQQQQ)
• Surface Coating of Metal Furniture (RRRR)
• Surface Coating of Wood Building Products (QQQQ)
• Printing, Coating, and Dyeing of Fabrics and Other Textiles (OOOO)
• Taconite Iron Ore Processing (RRRRR)
• Miscellaneous Coating Manufacturing (HHHHH)
• Lime Manufacturing Plants (AAAAA)
• Iron and Steel Foundries (EEEEE)
• Plywood and Composite Wood Products (DDDD)

The Decisions

Not surprisingly, in each case, plaintiffs argued for earlier deadlines for promulgation of the rules and defendants pushed for more relaxed deadlines.  Peter Tsirigotis, United States Environmental Protection Agency (U.S. EPA), Office of Air Quality Planning Standards (OAQPS) Director of the Sector Policies Programs Division (SPPD) testified about U.S. EPA staff availability, workload, responsibilities, etc.  In both cases, he also shared the nine-phase RTR rulemaking process and associated timelines.  Highlights of the nine-phase process and minimum duration include U.S. EPA:

1. Establishing a project team, determining whether it will need to hire contractors, and identifying potential stakeholders (2 months).
2. Compiling background information and data about the relevant source categories (3 months).
3. Compiling supplemental information from entities in each source category and sending request for supplemental information [information collection request (ICR)], as needed. If an ICR is sent to more than 10 entities in the source category, Office of Management and Budget (OMB) approval is needed. (0-28 months).
4. Developing detailed modeling files that provide required inputs to various risk models including emissions values for each pollutant (3-4 months).
5. Assessing residual risk and advancements in emission control technology (2-6 months).
6. Developing the proposed rule package, including technical memoranda and the rules, and reviewing the rule package with management and OMB, as needed (3 – 15 months).
7. Publishing the proposed rule in the Federal Register and commencing the public comment period (3 months).
8. Reviewing, summarizing, and responding to the public comments the proposed rule has received (3-5 months).
9. Developing the final rule package (3-8 months).

In review of the nine-phase rulemaking process, U.S. EPA appears to be stating an approximate two to six year time period for issuance of each of the 33 rules.  In both cases, the judges’ decisions on when the rules should be completed fell in between the plaintiff and defendant requests.  In a March 13, 2017 CCAT decision, Chutkan declared, “The court will order completion of all 20 source category RTRs within three years.”  Just over a week later, in a March 22, 2017 Blue Ridge decision, Cooper shares, “…the Court will order a remedial schedule that is more relaxed than that sought by Plaintiffs, but more expedited than that sought by the EPA. Because Plaintiffs demurred on the question of the relative importance of each source category…the Court will decline to order specific deadlines for each RTR and will defer to the EPA on which ones to prioritize. The Court will, however, order the EPA to complete RTRs for at least 7 overdue source categories by December 31, 2018, and to complete the remaining 6 RTRs by June 30, 2020.”  Both judges acknowledged the urgency of the rulemaking and also appeared to recognize the position that U.S. EPA faces with limited staff, budget cuts, etc.

So what does this mean?

From the court decisions, three primary dates and associated actions are established:

• By December 31, 2018, seven RTRs from Blue Ridge must be complete (U.S. EPA can use their discretion as to which seven).
• By March 13, 2020, the 20 RTRs from CCAT must be complete.
• By June 30, 2020, the remaining six RTRs from Blue Ridge must be complete.

The first seven RTRs are due to be completed in approximately 20 months. Reviewing Peter Tsirigotis’s rulemaking timeline, and considering his additional testimony about available resources for the rulemaking, it would be fair to assume that Vegas wouldn’t take the bet that U.S. EPA will meet the first deadline.   Even if they do, there’s no rest for the weary as the next 20 RTRs will be due approximately 14 months later, with the remaining six due a mere three and half months after that.  To say U.S. EPA has their work cut out for them is an understatement.  Can U.S. EPA get it done?  When will they get the RTRs completed? Only time will tell. And, it’s also fair to say that this may not be the last court action on the topic.  Stay tuned.

Six Things Affected Companies Should Do

We’ve focused on the end game (i.e., final rule issuance) up until now.  But what does it mean for you over the next three-plus years if your operations are subject to one or more of the MACT standards?  Let’s focus on six things you should do:

1. Be Aware. The court decisions focused on RTR completion dates rather than the interim steps (i.e., specific dates for notice of proposed rulemakings, proposed rules, etc).
   • Keep an eye on what seven rules are selected for the December 31, 2018 deadline.
   • Review U.S. EPA’s semiannual regulatory agenda for updates.
   • Keep checking in on ALL4’s website for updates, or just email or call us.
   • Know where “your rule(s)” falls in the process and the projected interim steps, as this information will be valuable and help you plan. (Some of the rules may be further along in the rulemaking process than you may have anticipated. For example, Integrated Iron and Steel and Ethylene Processes source categories have completed Phase 2 and Integrated Iron and Steel and Auto and Light Duty Trucks have begun Phase 4.)
2. Know Your Data. As shared in the RTR rulemaking process, Phase 2 includes reviewing data.
   • What data does U.S. EPA have about your source category(s) and/or your operations? Think emissions factors, emissions rates, pollutants, stack test data, Toxic Release Inventory (TRI), and continuous monitoring systems (CMS) data including continuous emissions monitoring systems (CEMS), continuous parametric monitoring systems (CPMS), and predictive emissions monitoring systems (PEMS).
   • Have you reviewed this data?
   • How has your data evolved over the last 13-16 years since the prior promulgation?
   • What corrections and updates should you make?
3. Educate. As Peter Tsirigotis shares, U.S. EPA is light on resources and often borrows from within U.S. EPA and/or utilizes contractors. These resources may not be familiar with your industry, operations, etc. They’re in a tough spot. Help them learn.
   • What can you do to educate your U.S. EPA rule writers?
   • Should you or your trade organization be sitting down with U.S. EPA?
   • Will you or a few representative industry sites be willing to host U.S. EPA to walk them through your process? (Hint: it might save you some time and pain in the long run.)
   • How can you develop relationships with and effectively work with the U.S. EPA staff?
     About eight years ago, a client, several industry groups, and ALL4 were involved in a series of in-person meetings and discussions with the rule writers for a Section 129 solid waste incineration rule that was in the rulemaking process. We were fortunate enough to get to meet with our rule writers and other members of the SPPD, including Peter Tsirigotis. We educated and discussed the process, shared our main concerns, and heard U.S. EPA’s concerns. Did we get everything we asked for? No. Did holding that meeting, developing those relationships, and working with U.S. EPA over the years result in a better rule? Yes, it did.
4. Anticipate Information Collection Requests. In Phase 3 of the rulemaking process, U.S. EPA will often ask for additional information to aid in the rulemaking should they determine they do not have sufficient information (as authorized by Section 114 of the CAA).
   • Haven’t been through an ICR? Clear your calendar now, prepare for a grueling exercise, and ask for help.
   • It’s not all bad news! Not all ICRs are created equal, not all companies in a given industry will receive one, and not all RTR processes result in an ICR request.
   • However, if your company does receive an ICR, expect to pull together a lot of data on processes, operating scenarios, pollutants and emissions profiles, and CMS. Additionally, you can expect to have to perform testing and/or sample select processes and operations. And yes, this is all on your dime. U.S. EPA will impose deadlines and no, it’s neither optional nor cheap.
   • As ICR responses can take substantial resources, plan ahead if you anticipate your rule(s) will include an ICR. Allocate money in your budget. Line up internal and external resources. Educate your internal team (environmental staff, management, etc.) on the ICR process.
5. Review and Comment. Phases 4-6 of the rulemaking process support the ultimate Federal Register publication of the proposed rule (Phase 7).
   • Review the proposed rule, as well as the accompanying preamble and support data that is included in the rulemaking docket (available at regulations.gov using the docket #). Typically, the proposed rule will be issued in an unofficial format followed by publication in the Federal Register a few weeks to a few months later. When it’s published in the Federal Register, that’s when the additional docket information typically becomes available.
   • Comment on the proposed rule in the allocated time period established (and keep an eye out for potential extensions that may be requested and/or granted). Provide tangible comments and solutions in your response. Also, tell U.S. EPA what does work for your facility, particularly if it’s a topic where you worked with them. Environmental groups will also be commenting and U.S. EPA, having support for portions of the rule, will only help them maintain that approach in the final rule. Finally, coordinate efforts with your trade groups, as applicable.
   • Don’t wait until the proposed rule to be involved. As mentioned in Educate above, get involved and influence the rule prior to its proposal.
6. Plan and Implement. It’s time to plan for the changes you’ll need to make to comply with the final rule.
   • What additional internal and external resources will you need to implement the rule (just as your friends in the refinery sector for their advice as they’re knee-deep in implementation of the refinery RTR)?
   • What capital projects will your facility need to undertake?
   • What permitting will need to be completed to support these capital projects?
   • What is your schedule for upcoming turnarounds? Can you accommodate these projects into a turnaround?

No doubt, there’s uncertainty surrounding the rulemaking for these 33 MACT Standards.  Follow these six steps along the way and you’ll put your company in the best position to successfully influence these regulations.  Have other advice or ideas on what else affected companies can do? Leave a comment.  Have further questions about the cases?  Want to know what else you can do?  Need help?  Don’t hesitate to reach out to Kristin Gordon at kgordon@all4inc.com or 281.937.7553 x 301.

Sources:

• CALIFORNIA COMMUNITIES AGAINST TOXICS, et al., Plaintiffs, v. SCOTT PRUITT, Administrator,  United States Environmental Protection Agency, , Defendant. Civil Action No. 15-cv-512 (TSC), March 13, 2017, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA (CCAT)
• BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE, et al., Plaintiffs, v. SCOTT PRUITT, Defendant. Case No. 16-cv-00364 (CRC), March 22, 2017, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA (Blue Ridge)
• “Corrected Declaration of Panagiotis E. Tsirigotis” for CCAT and Blue Ridge, dated March 1, 2017.

U.S. EPA to Reconsider Certain Requirements of NSPS Subpart OOOOa and Stays Fugitive Emissions Monitoring Compliance Date

In an April 18, 2017 letter to oil and gas industry groups, the U.S. Environmental Protection Agency (U.S. EPA) announced that it is reconsidering the fugitive emissions monitoring requirements of the 40 CFR Part 60 Subpart OOOOa Standards of Performance for Crude Oil and Natural Gas Facilities (Subpart OOOOa).  U.S. EPA indicated that industry groups “raised at least one objection to the fugitive monitoring requirements (…) that arose after the comment period or was impracticable to raise during the comment period and that is of central relevance to the rule (…)”.  Two of the issues identified in the petitions that are being reconsidered relate to provisions for alternative means of compliance and the inclusion of low production wells in the final rule.

In connection with the reconsideration, U.S. EPA is issuing a 90-day stay of the compliance date for the fugitive monitoring requirements.  Under the current version of Subpart OOOOa, affected companies would be required to have a monitoring plan in place and perform an initial fugitive monitoring survey at affected well sites and compressor stations by June 3, 2017 or within 60 days of the startup.  With the stay, the compliance date is pushed back to at least September 1, 2017 assuming these requirements are not ultimately withdrawn.

If you would like to discuss all the recent changes and regulatory activity related to Subpart OOOOa, contact Roy Rakiewicz at 610.933.5246, extension 127, or rrakiewicz@all4inc.com.

U.S. EPA Task Force Seeks Public Input on Existing Regulations

On February 24, 2017, President Trump issued Executive Order (EO) 13777 entitled “Enforcing the Regulatory Agenda.”  In this EO, the President established a timeline to “evaluate existing regulations (as defined in section 4 of Executive Order 13771) and make recommendations to the agency head regarding their repeal, replacement, or modification, consistent with applicable law.”  In particular, the EO requires each Federal agency to establish a Regulatory Reform Task Force, including U.S. EPA.  The EO also directed each Task Force to “seek input and other assistance, as permitted by law, from entities significantly affected by Federal regulations, including State, local, and tribal governments, small businesses, consumers, non-governmental organizations, and trade associations.”

As announced on April 11, 2017, and published in the Federal Register on April 13, 2017, U.S. EPA’s Task Force is seeking public input for potential repeals, replacements, or modifications of existing regulations.  Written comments are due by May 15, 2017.

Many U.S. EPA offices have also scheduled various forms of public outreach – of particular interest is a public meeting (teleconference) hosted by the Office of Air and Radiation (OAR) on April 24, 2017 from 11:00 am to 2:00 pm EDT.  Opening remarks by U.S. EPA will begin approximately 10 minutes prior to the meeting start time.  Attendees will be able to provide a 3-minute statement on a first come, first served basis as determined by an operator.  ALL4 will be attending this meeting and will provide additional insight on our blog shortly thereafter.

A list of the public meetings we believe may be of interest to our clients is provided below – the full list of U.S. EPA public outreach efforts can be found here.

• April 24, 2017 – Office of Air and Radiation (OAR) public meeting
• May 1, 2017 – Office of Chemical Safety and Pollution Prevention (OCSPP) public meeting (covering TSCA Subchapters I, II and VI and EPCRA Subchapter II § 11023)
• May 1, 2017 – OCSPP public meeting (covering TSCA Subchapter IV)
• May 2, 2017 – Office of Water (OW) virtual listening session

Stay tuned for additional updates on U.S. EPA’s Regulatory Reform efforts.  If you are subject to an air quality or other environmental rule with burdensome recordkeeping, reporting, or other compliance obligations, now is your opportunity to provide comments to U.S. EPA.  Reach out to me at 610.933.5246 x122 or lkroos@all4inc.com to discuss how we can help you prepare and submit these comments, and remember that they are due by May 15, 2017.

Continuous Monitoring System Data – The Risk of Being Isolated

Annalise recently wrote an article called “What-If Island,” where the “island” represented “creating a story,” usually about something that is not as scary as we make it out to be in our heads.  “Being on an island” can also refer to being isolated, which is something I think many of us have experienced in two distinct ways.  First, when I’m struggling with something by myself, “spinning my wheels” so to say, I can many times find myself going to What-If Island.  But once I engage someone for input, the solution often becomes clear and I can move forward.  That independent input acts as a lifeboat that I can use to get back to the mainland.  The other type of isolation is of the “ignorance is bliss” variety.  Without input from others, it’s easy to believe everything is fine.  But once someone else does provide input, it may become clear that everything is not fine and I never would have known.  At ALL4, we work as a team to help prevent those two types of isolation from occurring.

Have you experienced isolation around your facility’s continuous monitoring system (CMS) data?  We’ve been stressing the importance of being confident in your CMS data now that electronic data reporting is becoming the norm.  Even though U.S. EPA is experiencing a shift in administration, their Compliance and Emissions Data Reporting Interface (CEDRI) allows anyone to access and scrutinize your facility’s data.  Here are a few reasons you may want to seek independent input:

• Is there something about your CMS data that you’re unsure about and don’t know who to ask?
• Is there only one person looking at your CMS data?  Are your CMS resources approaching retirement?
• Have you been submitting the same reports for years even though rules and guidance may have changed?
• Are your CMS data validation and calculations occurring in a “black box” that no one understands?

We can be a resource to look at your CMS data, management procedures, and reporting from an independent perspective.  We have a strong CMS team with experience in multiple states across multiple industries to facilitate sharing information and preventing isolation.  We’ve already been supporting many of our clients with their CMS data and have identified several vulnerabilities that they didn’t know existed, and that we have successfully resolved.

Don’t get stuck on What-If Island when it comes to your facility’s CMS data.  Reach out to me at 610.933.5246 x122 or lkroos@all4inc.com to schedule a call with our CMS team, and don’t be surprised if we contact you directly.  ALL4 has been actively reaching out to our clients and other contacts to share our perspective and experiences with CMS and other environmental data management practices.

Want to read more about this topic?  Check out these related articles:

• Is Your Continuous Monitoring Data Leaving You Vulnerable and Exposed?
• What’s in Your Dirty Laundry? Delving into the Importance of Your Facility’s Emissions Data
• Time to Upgrade Your Facility’s Data Management System?

PC MACT HCl CEMS – Does July 25, 2017 Sound Familiar?

July 25^th, 2017 is the expiration date for the 1-year additional compliance alternative for sources required to use a hydrogen chloride (HCl) continuous emission monitoring system (CEMS) to demonstrate compliance with the Portland Cement MACT (i.e., PC MACT or 40 CFR Part 63, Subpart LLL) HCl emission limit.

It’s now April…what is your compliance strategy after July 25^th, 2017?

Before I talk strategy, let us first revisit the issue that triggered the 1-year additional compliance alternative.

• The monitoring and compliance provisions of the PC MACT require sources subject to limitations on HCl emissions to conduct performance testing by using HCl CEMS that meets the requirements of Performance Specification 15 (PS-15), PS-18, or any other PS for HCl CEMS promulgated in 40 CFR Part 60, Appendix B.
  • I acknowledge that there are alternatives to using HCl CEMS if the kiln emissions are controlled, but those alternatives are NOT the focus of this blog.
• The quality assurance procedures for HCl CEMS require the use of National Institute of Standards and Technology (NIST)-traceable calibration gases for HCl.
• The full range of HCl calibration gases required to support HCl CEMS were not widely (commercially) available prior to the September 2016 PC MACT compliance date.
• Due to NIST-traceable calibration gas availability issues, the U.S. Environmental Protection Agency (U.S. EPA) amended the PC MACT (direct final rule) prior to the September 2016 compliance date to provide a 1-year additional compliance alternative for sources using HCl CEMS.
• U.S. EPA anticipated that NIST-traceable calibration gases for HCl would be available in sufficient quantities prior to the expiration date (July 25^th, 2017) of the temporary alternative.

The obvious compliance strategy is to purchase NIST-traceable calibration gases and certify an existing HCl CEMS in accordance with a PS for HCl CEMS in 40 CFR Part 60, Appendix B and operate the CEMS in accordance with the original PC MACT requirements by July 25^th, 2017.  We are nearing [already possibly into] the typical lead-time needed to obtain NIST-traceable HCL calibration gas.  With that being said…

Did you order your NIST-traceable HCl calibration gas yet?

Assuming you haven’t had success procuring sufficient quantities of the HCl NIST-traceable calibration gas needed for long term operation, what does your HCl compliance demonstration look like after July 25^th, 2017?  Are you hoping that U.S. EPA extends the expiration date for the additional compliance alternative?  Will you continue operating an HCl CEM as a continuous parametric monitoring system (CPMS)? Will you conduct another stack test?  Will your site-specific monitoring plans require updating?  Will your employees require training or tools for new compliance methodologies?  Is your data acquisition and handling system (DAHS) properly configured to evaluate compliance with the HCl emission standard using HCl CEMS?  Are you documenting decisions, making notifications or submittals concerning this matter?

My next statement might bum you out — this blog isn’t going to provide a blanket compliance strategy recommendation nor do I have a top secret solution.  In many cases, compliance strategies need to be site-specific, and the details of your situation may vary from the next.  I strongly recommend you do not “bury your head in the sand” and place your compliance on the hopes of what others may do (e.g., request another extension and that U.S. EPA will approve it).  The window for determining your options is closing.  U.S. EPA is clear in the direct final rule that owners/operators must have HCl CEMS that meets the requirements of a PS for HCl CEMS in 40 CFR Part 60, Appendix B in place and operational by the July 25^th, 2017 expiration date.

My ALL4 colleagues and I have been enjoying helping folks with PC MACT compliance.  We are proud of our ability to “become our client” in our approach to managing and executing projects.  If you find yourself working through this issue or any other PC MACT related matters, help is only a phone call or email away.  My contact information is (610) 933-5246, extension 120 or jkleinle@all4inc.com.