4 The record articles

2018 Look Ahead

Posted: January 10th, 2018

Authors: Dan D.  Kristin G.  Nick L.  Colin M.  John S.  Susie B.  Eric S.  All4 Staff 

Introduction to Annual Look Ahead 2018

Colin McCall

Portions of this 4 The Record article is available as a podcast episode on ALL4’s Air Quality Insider

At ALL4, before we make plans for the year ahead we always look backwards to get closure on the lessons learned from the year past.  So, when it came time to draft the introduction to our 2018 Look Ahead Article, naturally my starting point was John Egan’s introduction from January 2017.  The theme was “Changes in the Wind”.  At the time, there was a great deal of anticipation around major changes in the environmental arena under the then new Trump Administration.  Some of the uncertainty and anticipation that existed at that time has been replaced by limited clarity 12 months later.  While none of us can fully predict exactly what comes next in the air quality arena, there are some distinct things that we’ve learned about this U.S. EPA Administration over the past year:

  • The principle of Cooperative Federalism is back and is a point of emphasis at the highest levels of U.S. EPA.  The relationship between U.S. EPA and state regulatory agencies is changing.  The previous U.S. EPA administrations had become increasingly involved in “looking over the shoulder” on permitting decisions made by state regulatory agencies for modifications and new expansion projects.  We expect this oversight involvement to diminish with state regulators taking the primary role for permitting decisions as the Administration continues to evolve.
  • Air regulatory activity has been light relative to years past and will likely continue to be light.  U.S. EPA’s primary regulatory focus remains on Maximum Achievable Control Technology (MACT) standards for which court ordered deadlines have been established.  Likewise, the National Ambient Air Quality Standards (NAAQS) are unlikely to be tightened in the near term.  This period of relative calm presents an excellent opportunity for environmental managers to evaluate existing compliance obligations, required records, and reporting tools.  You may find opportunities to make improvements and develop consistency in compliance methodologies and reported information that will become part of the public record.
  • U.S. EPA has been assertive in reshaping major regulations that had already been proposed prior to the start of the Administration.  The Clean Power Plan (CPP) is proposed for repeal to be replaced by a regulation that is anticipated to focus at the facility-specific level.  U.S. EPA has proposed to rescind the previously proposed Waters of the U.S. (WOTUS) rule.  Changes are also anticipated to the rules regulating greenhouse gas emissions from oil and gas operations. Where there have been opportunities to reshape, streamline, or eliminate regulatory burden, U.S. EPA has done so.
  • Regulatory reform will occur, but we don’t know what the pace of changes will be.  For many industrial facilities, streamlining the New Source Review (NSR) construction permitting and corresponding air quality modeling process would reduce uncertainty thereby paving the way for more industrial expansion projects.  Streamlining the rules themselves, however, is time consuming and difficult to implement through formal rulemaking, challenges, and litigation.  We believe that U.S. EPA is committed to improving the NSR program and because much of the NSR program is based on guidance and policy, they will likely look for “low hanging fruit” in the form of policy changes to start making much needed improvements.

The end result of all of this is more certainty and clarity for facilities moving forward relative to U.S. EPA’s role and interaction in day to day permitting and compliance.  We see this clarity driving increased investment of capital dollars and believe that the trend will continue as the deregulatory climate becomes even more established over the coming year.  The removal of U.S. EPA “second guessing” alone is a major step in clearing the way for expansion projects to be permitted and implemented.  Long story short, these are exciting times for us, our clients, and the state regulatory agencies that we work with every day.  As the year progresses, we will keep you updated on developments as we get them, and we will look for every opportunity to help U.S. EPA as they evaluate opportunities to streamline and improve the current regulatory regime while still maintaining the environmental protections that we all expect.

 

2018 Action Items for Compliance with 40 CFR Part 63, Subpart MM Amendments

Susie Bowden

On October 11, 2017, U.S. EPA finalized revisions to 40 CFR Part 63, Subpart MM [National Emission Standards for Hazardous Air Pollutants for Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite, and Stand-Alone Semichemical Pulp Mills].  One of my colleagues recently published a blog on Subpart MM that included some of the more noteworthy revisions.  We won’t rehash those here.  Instead, we want to focus on the actions that mills need to be taking in 2018 to be in compliance with these revisions.

It is given, as a first step, that mills need to determine what rule revisions affect their emissions sources.  Other actions, listed in no certain order, are:

  • Determine your state agency’s Title V Operating Permit (TVOP) strategy for incorporating the revised rule requirements;
  • Determine, what, if any, adjustments need to be made to your data acquisition system (DAS); and
  • Determine applicable reporting changes.

Some state agencies may require a mill to complete a TVOP modification to open its permit to incorporate the applicable Subpart MM revisions.  Other states may wait until the next TVOP renewal to make the necessary updates.  We have heard that some states may be expecting to see permit applications as early as third quarter of 2018.  If you don’t know your specific permitting agency’s position on this, we can help you check in with them to determine if permitting is needed in 2018.

Adjustments may be needed for the DAS to comply with the Subpart MM revisions.  These adjustments need to be vetted and planned for well in advance of the October 11, 2019 compliance date for existing sources.  The startup, shutdown, and malfunction (SSM) exemption was eliminated with the Subpart MM revisions.  If these types of events are currently being excluded within your DAS, then updates will be necessary to include these events as of the compliance date.  We suggest you begin working with your DAS vendor to plan for the upcoming changes, including the SSM event removal as well as other identified changes.

Continuing with the electronic reporting trend, Subpart MM revisions include an electronic reporting element for excess emissions reports as well as performance testing.  Subpart MM reporting frequency will change from quarterly to semi-annually.  This change will take effect one year after a Subpart MM reporting form becomes available in the Compliance and Emissions Data Reporting Interface (CEDRI).  Upon this change, the frequency and format of Subpart MM reporting will change. Note that your state agency may still require the current format (i.e., hard copy submittal) until they are also equipped to receive electronic reporting.  U.S. EPA has already provided the Excel-based excess emissions reporting spreadsheet template that can be used when Subpart MM reporting becomes available in CEDRI.  A mill should download this template in 2018 so that they are prepared when electronic reporting becomes available in CEDRI.

If you need help with any of the above-described action items, please reach out to us.  We are happy to help you determine which Subpart MM revisions are applicable at your mill and help you determine a 2018 plan of action.  Please call Susie Bowden at 334.855.3382 if you have any questions.

What is in Store for New Source Review (NSR)?

Nick Leone

The past year has included significant discussion around “regulatory reform” and the need to reduce the regulatory burden on domestic manufacturing industries.  The federal New Source Review (NSR) regulations are almost always mentioned in the same breath as regulatory reform. The NSR regulations include both the Prevention of Significant Deterioration (PSD) and the Nonattainment New Source Review (NNSR) regulations.  PSD applies to new major sources and to major modifications at existing major stationary sources located in areas deemed “in attainment” or “unclassifiable” with the National Ambient Air Quality Standards (NAAQS).  NNSR applies to new major sources and to major modifications at existing major stationary sources located in NAAQS nonattainment areas.  Historically, most facilities have taken steps (i.e., limited emissions increases) to avoid triggering major NSR requirements for facility modifications.  The fear of triggering a major modification is valid because the air permitting path for projects that are major NSR modifications can be complicated and uncertain.

The NSR reforms of 2002 addressed several issues associated with the NSR rules, primarily by allowing facilities (under certain circumstances) to properly identify and account for emissions associated with product demand, and not directly associated with the project, thereby reducing the number of projects that triggered major NSR permitting.   However, it has been 15 years since the reforms were promulgated, with subsequent policy and guidance somewhat “diluting” the benefits of the original NSR reform rule.  ALL4 has been keeping an eye on evolving air quality regulatory policy (see our January and March 2017 articles).  A relatively recent NSR memorandum signed by the U.S. EPA Administrator represents the first of several anticipated air quality regulatory policy revisions.  The basics of the policy are described below.

NSR is a pre-construction air permitting program which requires major stationary sources (i.e., dependent upon potential emissions and industry), to perform an assessment of emissions associated with changes at the facility (prior to implementing the project).   Those familiar with NSR permitting are likely aware of the option to perform the “actual-to-projected actual” applicability test (a provision from the 2002 NSR reforms), which involves looking at historic emissions during a baseline period and comparing those emissions to the projected actual facility emissions that are expected in any one of the five years (or 10 years in some cases) following the project.  When considering projected actual emissions, companies are expected to consider relevant information including but not limited to, historical operational data, the company’s own representations, the company’s expected business activity and the company’s highest projections of business activity, the company’s filings with the State or Federal regulatory authorities, and compliance plans.

The referenced NSR memorandum discusses the current administration policy on NSR applicability as it relates to the projection of actual emissions.  Here are some highlights.

  1. U.S. EPA does not intend to review NSR applicability analyses and evaluate the basis for how projected actual emissions are developed.  Adequate enforcement capability is in place through actual emissions reporting.
  2. Regardless of the projected project emissions increase, the right to enforce remains in cases where the NSR applicability analysis was not performed, or was not performed following objective requirements of the rule.
  3. The policy has a forward focus, referring to “in such future cases”.
  4. U.S. EPA does intend to focus on post-project monitoring, recordkeeping, and reporting as a means of supporting (or refuting) the NSR applicability conclusion of pre-project projections.

So, what does this really mean?  Please note that this is only a policy document and no regulatory requirements have changed.  The NSR rules are the same as they were immediately preceding the release of this U.S. EPA guidance memo.  Major stationary sources are still required to perform NSR applicability analyses prior to projects implementing physical changes or changes in the method of operation.  It is anticipated that most state and local agencies responsible for implementing the major NSR programs will continue to require submittal of the applicability analyses if that is their current practice.  If submittal isn’t required, we still recommend that companies document the NSR applicability assessments in their records.  The new guidance clearly signals a shift in Federal policy on how projects will be evaluated for air permitting under this Administration.  U.S. EPA is stating in this policy that it is less likely to “second guess” an NSR applicability analysis and the validity of their emissions projections, because “other” enforcement mechanisms are in place.  Experience indicates that this has not always been the case and the process of reviewing these analyses by U.S. EPA (or implementation States) takes time before projects can begin.  ALL4’s John Egan was pretty insightful last January by predicting that projects complying with regulatory requirements will be less likely to be delayed over policy interpretations of regulatory requirements.  This NSR guidance document is one example of Federal policy changing course.  However, as you evaluate new projects keep in mind that Administrations and rule interpretations can change, but the technical basis for assessing rule applicability will live on.  Please contact Nick Leone at 610.933.5246, extension 121 or Roy Rakiewicz at 610.933.5246, extension 127.

Toxics Substances Control Act (TSCA) Inventory Notification due February 7, 2018

ALL4 Staff

Yes, we know!  You just fulfilled your four year TSCA Chemical Data Reporting (CDR) cycle in 2016.  However, did you know that you may also be subject to unique TSCA Inventory Notification requirements due as early as February 2018?  And for those of you less familiar with TSCA CDR, you may be wondering what it even is.  The CDR Rule requires manufacturers (including importers) to give U.S. EPA information on the chemicals they produce domestically or import into the United States once every four years.  U.S. EPA uses the data to help assess the potential human health and environmental effects of these chemicals and makes the non-confidential business information it receives available to the public.

U.S. EPA currently has a statutory obligation to designate chemical substances on the TSCA Chemical Substance Inventory as either “active” or “inactive.”  To do this, they recently finalized a rule requiring certain facilities to submit an electronic notification through the Chemical Data Exchange (CDX) so that they can prioritize appropriate chemicals for risk evaluation.  The reports are due February 7, 2018 for manufacturers (including importers) and are due October 5, 2018 for processors.

What types of facilities are we seeing subject to these 2018 reporting requirements?  Pulp and paper mills, chemical manufacturers, and petroleum and coal products manufacturers, to name a few – though that list is certainly not exhaustive.  Specifically, the following types of facilities are required to report in accordance with the rule:

  • Facilities that domestically manufactured, imported, or processed a chemical substance listed on the TSCA Chemical Substance Inventory for nonexempt commercial purpose during the 10-year period ending on June 21, 2016.
  • Facilities that intend to domestically manufacture, import, or process in the future a chemical substance listed on the TSCA Chemical Substance Inventory.

What is involved with fulfilling the rule’s “retrospective reporting requirements” (that apply to chemical substances listed on the TSCA Inventory manufactured for nonexempt commercial purposes during the 10-year period ending on June 21, 2016) and “forward-looking reporting requirements” (that apply to chemical substances listed as inactive on the TSCA Inventory that are to be reintroduced into U.S. commerce for nonexempt purposes)?  Essentially, facilities subject to the rule should be reviewing their future business plans and previous Form U submittals during the 10-year period ending on June 21, 2016 against U.S. EPA’s “Interim List of Active Substances” to:

  • Confirm that all TSCA chemical substances that the facility intends to domestically manufacture, import, or process in the future are listed as “active.”  (No notification is needed if all chemical substances that were/are manufactured, imported, or processed for nonexempt commercial purposes are already listed by U.S. EPA.)
  • Confirm that all substances reported to U.S. EPA during the 10-year period ending on June 21, 2016 are listed as “active.”
  • Confirm that all TSCA chemical substances manufactured and/or imported by the facility during the 10-year period ending on June 21, 2016 but not reported to U.S. EPA due to the amount manufactured and/or imported being below the reporting threshold of 25,000 pounds per year (lbs/yr) (if any) are listed as “active.”
  • Determine whether the chemical substances reported to U.S. EPA during the 10-year period ending on June 21, 2016 are currently designated by U.S. EPA as “active” versus “inactive.”

Following this exercise, the facility should develop and submit the following notifications to U.S. EPA through the CDX by either February 7 or October 5, 2018 (as applicable):

  • A retrospective electronic notification indicating the TSCA Inventory chemical substances (if any) that were manufactured, imported, or processed for nonexempt commercial purposes during the 10-year period ending on June 21, 2016 and either (1) reported but not listed as “active” on U.S. EPA’s “Interim List of Active Substances” and/or (2) not reported to U.S. EPA due to the reporting threshold not being exceeded.
  • A forward-looking electronic notification indicating the TSCA Inventory chemical substances that are designated as inactive, and if and when the manufacturing or processing of such chemical substances for nonexempt commercial purposes is expected to resume.

If you are not familiar with TSCA reporting requirements this may all seem a bit overwhelming.  If you have questions regarding the TSCA rules, need help deciphering the new 2018 reporting requirements, or need assistance to make sure your report will be submitted on time, reach out to your ALL4 Project Manager or contact ALL4.

Prove It to Me – Do Not Overlook Your Future Compliance Demonstration

Eric Swisher

As we all “Look Ahead” into what 2018 may bring, I asked myself, What will be the future of compliance demonstrations using continuous monitoring systems (CMS)?  We are not anticipating any upcoming major Federal regulatory actions in 2018 that will require CMS to be installed (like the Portland Cement and Boiler MACT in recent years).  However, we do expect U.S. EPA to increase their reliance on capable state regulatory agencies for regulatory interpretations and enforcement resulting from compliance demonstrations.  What will state agencies do in reaction to the increased responsibly?  Could this shift in 2018 result in increased monitoring for regulated entities?

As mentioned in the NSR Look Ahead, if U.S. EPA opts to lessen the scrutiny of projections of future actual emissions as presented in NSR applicability evaluations by industry, states will likely fill this gap in a manner similar to U.S. EPA guidance or they may require increased monitoring as a compliance demonstration.  Facility expansion projects that avoid major NSR could be facing a “prove it to me” approach from state agencies.  Oh, do you say that your future actual emissions will be 39.9 tons in excess of your baseline actual emission? Okay, prove it to me.  Implementation of increased CMS is an easy option for state agencies to require as part of a facility’s compliance demonstration.  A “prove it to me” approach allows for the permit review and approval process to be completed more efficiently at both the Federal and state agency level with limited resources.  If you want your permit quickly, what monitoring will you be willing to commit to?

As the economy expands, capital expansion projects at manufacturing facilities could be a major story in 2018.  Will the corporate tax reform and surging economy lead to more expansion projects?  Some facilities have already positioned themselves effectively to capitalize on capital dollars by understanding their current and potential future compliance demonstrations.  What if old emission factors using stack testing are being used for your baseline emissions and compliance with your future actuals will be demonstrated continuously using CMS.  The means of demonstrating compliance can contribute to future compliance issues.  Contemplating your compliance demonstration methodology does not start when you get your final permit, it starts with your permit application and draft permit.  Be careful of what you choose accept in a construction permit, even if you needed your permit yesterday.  Please contact Eric Swisher at 610.933.5246, extension 117 with any questions.

2018 Air Quality Modeling Look Ahead

Dan Dix

2018 will mark the first full year that the 40 CFR Part 51 Appendix W (Guideline on Air Quality Models or Guideline) amendments will be in place for potential permittees to take advantage of.  Really, 2017 was supposed to be the first full year since the amendments were set to go effective January 17, 2017.  However, the Guideline amendments were caught up in delays caused by the White House executive directive during the administration change, and, after two delays, didn’t become effective until May 22, 2017.  As we continue to evaluate capital projects in 2018, I’ll summarize my personal top three amendments of the Guideline that should make air quality modeling permitting requirements a little bit easier and quicker.

First off, a note of clarity.  The Guideline amendments included a 1-year grace period during which permit applicants could still utilize the previous Guideline (circa 2005).  Due to the delays, there has been some confusion about when this grace period started.  As heard directly from the United States Environmental Protection Agency (U.S. EPA) at the recent Air and Waste Management Association (AWMA) modeling conference, the grace period will end by the time you read this on January 18, 2018.  That is, the delay in the effective date of the Guideline amendments did not affect the grace period.  Here are three advantages of the Guideline amendments that should facilitate a quicker and less-conservative air quality modeling analysis to support your next permit application:

1. Less conservative nitrogen dioxide (NO2) modeling options that don’t require additional U.S. EPA Regional review.

The Guideline amendments now allow for the use of Tier 2 and Tier 3 NO2 chemistry options without U.S. EPA Regional review and acceptance, which should mean less review time and more use of a less-conservative modeling technique.  However, the Guideline includes a conservative default NO2 to nitrogen oxides (NOX) in-stack ratio (ISR) of 50% (which is utilized for the Tier 2 and 3 NO2 chemistry options) when actual data supporting a lower ISR is not available.  Therefore, it continues to be important to collect ISR information during stack testing or with your NOX continuous emissions monitoring system (CEMS).

2. Updates to the AERMOD air dispersion model to better predict concentration during low wind speed events.

It was a long time coming.  However, the 2010 1-hour National Ambient Air Quality Standards (NAAQS) for NO2 and sulfur dioxide (SO2) highlighted AERMOD’s tendency to overpredict concentrations during low wind speed events.  After a great deal of work was completed and funded by stakeholders, we now have enhancements to AERMOD through ADJ_U* (U* is the variable for surface friction velocity in dispersion calculations which was identified as needing adjustment during low wind speed events to avoid overprediction) which is now a default option to better predict low wind speed events.  It’s important to point out that from draft to final Guideline amendments, the LOWWIND options, as well as ADJ_U* with use of onsite standard deviation of the vertical wind speed (sigma W) data, remain non-default.

3. Inclusion of a prognostic model to generate a site-specific meteorological AERMET dataset with the use of U.S. EPA’s mesoscale model interface program (MMIF).

Because the other half of my trade involves installing and maintaining meteorological monitoring systems (and that I’m a self-processed weather data nerd), I have mixed feelings about the use of MMIF.  However, I do believe in certain situations, as U.S. EPA has caveated, “where on-site monitoring is prohibitive or infeasible, and where representative monitored data are not available or the best choice” the use of MMIF will help make permitting applications less expensive and quicker.  In addition, MMIF can be used as a component of a meteorological data representativeness analysis to evaluate the representativeness of existing meteorological datasets that historically would have been hard to demonstrate as representative.

There are additional Guideline amendments that have improved the air quality modeling process, as well as some amendments that have added requirements [i.e., evaluation of ozone and particulate matter less than 2.5 microns in diameter (PM2.5) precursors. However, I’ve decided to focus on the positives going into 2018.  Should you want to discuss any of the Guideline amendments (for better or worse), contact Dan Dix at ddix@all4inc.com or 610.422.1118.

Still Standing – 2018 Revised Mandatory Greenhouse Gas Reporting

ALL4 Staff

Through the Mandatory Greenhouse Gas (GHG) Reporting Rule, U.S. EPA collects and publishes emissions data from individual facilities that are subject to one or more of the 43 individual subparts of 40 CFR Part 98.  Since its initial promulgation in 2009, Part 98 has already been amended around 30 times to add new source categories and to make both clarifying and technical amendments.  U.S. EPA was once again active at the end of 2016 when it finalized sweeping amendments across the rule, specifically to the following subparts:

  • Subpart A (General Provisions)
  • Subpart C (General Stationary Fuel Combustion Sources)
  • Subpart E (Adipic Acid Production)
  • Subpart F (Aluminum Production)
  • Subpart G (Ammonia Manufacturing)
  • Subpart I (Electronics Manufacturing)
  • Subpart N (Glass Production)
  • Subpart O (HCFC-22 Production and HFC-23 Destruction)
  • Subpart Q (Iron and Steel Production)
  • Subpart S (Lime Manufacturing)
  • Subpart V (Nitric Acid Production)
  • Subpart W (Petroleum and Natural Gas Systems)
  • Subpart X (Petrochemical Production)
  • Subpart Y (Petroleum Refineries)
  • Subpart Z (Phosphoric Acid Production)
  • Subpart AA (Pulp and Paper Manufacturing)
  • Subpart CC (Soda Ash Manufacturing)
  • Subpart DD (Use of Electric Transmission and Distribution Equipment)
  • Subpart FF (Underground Coal Mines)
  • Subpart HH (Municipal Solid Waste Landfills)
  • Subpart II (Industrial Wastewater Treatment)
  • Subpart LL (Suppliers of Coal-Based Liquid Fuels)
  • Subpart NN (Suppliers of Natural Gas and Natural Gas Liquids)
  • Subpart OO (Suppliers of Industrial Greenhouse Gases)
  • Subpart PP (Suppliers of Carbon Dioxide)
  • Subpart RR (Geologic Sequestration of Carbon Dioxide)
  • Subpart TT (Industrial Waste Landfills)

Does your facility fall into one of the above source categories?  If so, is your GHG monitoring plan up to date with the amended provisions and are you prepared to calculate and report your GHG emissions in accordance with the amended provisions by April 2, 2018?  If you are responsible for monitoring and reporting GHG emissions, we encourage you to review these amendments with your ALL4 Project Manager to ensure you understand how you will be impacted during the current reporting season and beyond.

If you have questions regarding your facility’s status with regard to GHG reporting, permitting, or regulation, please contact ALL4.

Chemical Facility Anti-Terrorism Standards: Tips for 2018

Kristin Gordon

As we flip the calendar from 2017 to 2018, we’ve just recently hit the 10-year mark since the Department of Homeland Security (DHS) Chemical Facility Anti-Terrorism Standards (CFATS) rule was finalized.  However, in late 2016, we saw DHS roll out an updated Chemical Security Assessment Tool (CSAT) 2.0 along with a new refined risk model which is used to tier facilities.  As a result, chemical facilities were required to resubmit Top-Screens in 2017 for chemicals used in quantities and concentrations as identified in Appendix A of 6 CFR 27.

From the over 20,000 Top-Screens received, DHS issued tiering determination letters.  Facilities were identified as a non-tiered facility or from Tier 1 to Tier 4, with Tier 1 representing the highest risk of the four tiers.  Some facilities tiered in for one or more chemical of interest (COI), others changed a tier, some tiered out and some continued not to be tiered for the COI.  The CFATS program currently covers approximately tiered 3,500 facilities.

Tiered facilities must address 18 risk based performance standards (RBPS) in a security vulnerability assessment (SVA) and either a Site Security Plan (SSP) or an Alternative Security Program (ASP).  RBPSs range from cyber to personal surety to screen and control access to restrict area perimeter and secure site assets.  Facilities assess their existing measures and identify planned measures that they will implement.

With a change in tiering or initial tiering for a COI, subject facilities found themselves either updating or developing new SVA and SSP/ASPs and submitting them in the new CSAT 2.0.  Today we find facilities wrapping up these submittals which were due anywhere from mid-2017 to early 2018, although some facilities were fortunate enough to receive extensions.

The next steps after submission of the SVA and SSP/ASP includes analyst review of the documents followed by site inspection by DHS, either of which may be iterative and require communication with DHS.  Upon approval of the SSP/ASP, facilities must then implement the planned measures, abide by training and recordkeeping requirements, etc.

ALL4 assisted clients with Top-Screens, site visits, pilot programs, DHS compliance assistance visits, and development of SVA and ASPs in 2017.  We’ve also been fortunate to get to know industry and trade group security experts who were instrumental in shaping the new tiering approach and CSAT 2.0.  From these experiences, we share the following tips as facilities continue to abide by CFATS in 2018:

  1. Remember that “Planned Measures” that are documented in an ASP or SSP must be implemented.  They are not just measures you think you might want to implement someday.  Craft your planned measure language carefully as well as the timeline that you commit to.  Where appropriate, add several increments to demonstrate progress to DHS for those measures that will take longer to implement.
  2. Work with your DHS inspector(s) but also push back as needed.  If you don’t understand where a request is coming from, ask for the regulatory basis.  Ask how implementation of such a measure would impact your facilities security posture.
  3. Develop the procedures and policies necessary for CFATS compliance (training, inspection, recordkeeping, policies, etc.).  Decide which items are to be developed at the facility level and which ones at the corporate level.
  4. Expect DHS to visit after approval of your SSP/ASP and expect that they’ll be focusing their visit on the planned measures you’ve committed to.
  5. Routinely evaluate any changes in use of Appendix A chemicals at your facility in accordance with 6 CFR 27, which identifies specifically when facilities must perform a new Top-Screen.
  6. Keep an eye out for changes regarding the CFATS program.  What impact might the National Academies of Sciences, Engineering, and Medicine report on Improvised Explosive Devices have on Appendix A in the future?  What will DHS’s reauthorization look like?

Have additional questions about compliance with CFATS, reach out to ALL4’s Kristin Gordon (kgordon@all4inc.com or 281.937.7553 x301).

A Brave New World?

John Slade

There is no doubt that the Clean Air Act (CAA) has resulted in substantial improvements in air quality since its inception in 1970.  As our air quality has improved, it has become increasingly difficult for domestic industry to install new sources and to improve the efficiency of existing sources.  Certain people may say that is a good thing, but is it?  New emissions units typically are replacing (directly or indirectly) older and more polluting sources, such as we have seen for electric generating units (EGUs) in recent times.  The harder it is to permit new, more efficient EGUs, the economics associated with extending the life of older, more polluting units become more favorable.

There are way too many reasons to describe why air quality permitting is difficult for large stationary sources, but it basically boils down to complex set of rules stemming from the CAA which act to drive emissions control to tighter and tighter levels, and to also require that emissions decreases be greater than emissions increases (i.e., emissions offsets) in areas of the country that are determined to be nonattainment with the national ambient air quality standards (NAAQS). This emissions offset mechanism is driven by the generation and use of Emission Reduction Credits (ERCs).  ERCs can be generated by facilities by over-controlling emissions or by shutting down and the reductions must be permanent (among other requirements). The emissions offset process has worked surprisingly well, and has contributed to significant air quality improvements.  In the early days of my career in air quality, there were many old, high-polluting sources, and finding ERCs to document and use in permitting projects was fairly easy.  However, after over 20 years, we are now getting to the point that there are fewer and fewer ERCs being generated because all of the older sources are shutdown and ERCs in certain areas are becoming scarce.  In parts of California, Texas and the Northeast U.S., these ERCs, if available, are becoming very expensive to purchase. Of particular concern, ERCs for volatile organic compounds (VOC) and fine particulate matter (PM2.5) are in very short supply.

The rules associated with the need for emissions offsets and ERCs have resulted in unanticipated consequences.  Areas of “clean” air quality (i.e., attainment areas) that do not require emissions offsets and ERCs may become more polluted, and areas of “dirty” air quality (i.e., nonattainment areas) may not get cleaned up simply because new cleaner and more efficient sources cannot be built there due to the significant permitting burden (and the possible need for ERCs). The federal CAA needs many revisions for reasons that could not have been realized in 1990, the last time it was revised, and as we all know, today’s U.S. Congress could not possibly agree to change something as complex as the CAA.  Regardless of the goals of the administration to reduce the regulatory burden on domestic industries, there is legal certainty in the CAA that are not likely to change in the short term.  Long story short, many of the difficulties associated with permitting new and modified major stationary sources in nonattainment areas will remain over the short term and will contribute to difficult air quality permitting in such areas.  Please contact John Slade at 610.933.5246, extension 136 with any ERC related questions.

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