PFAS Significant New Use Rule (SNUR) – Finalization and “Safe Harbor” Removal

On June 22, 2020, U.S. Environmental Protection Agency (U.S. EPA) issued a final significant new use rule (SNUR) for a group of long-chain perfluoroalkyl carboxylate (LCPFAC) and perfluoroalkyl sulfonate chemical substances, which include per- and poly-fluoroalkyl substances (PFAS), under the Toxic Substances Control Act (TSCA).  The new SNUR addresses risks from products like carpets, furniture, electronics, and household appliances.  As with any SNUR, this rule excludes ongoing uses.  Specifically, the SNUR designates manufacturing (including importing) or processing of the following as a “significant new use”:

  • An identified subset of LCPFAC chemical substances for any use that was not ongoing as of December 15, 2015.
  • All other LCPFAC chemical substances for which there were no ongoing uses as of January 21, 2015.

There’s more background here than meets the eye, so let’s dig in.

The amendments to this SNUR were originally proposed on January 21, 2015 and the intention was to require manufacturers and processors of perfluorooctanoic acid (PFOA) and PFOA-related chemicals to notify U.S. EPA at least 90 days before starting or resuming new uses of these chemicals in any products.  The purpose of this was to prevent a resurgence in the usage of chemicals that were previously either no longer in use or were being phased out by manufacturers.  If notified, U.S. EPA would have the opportunity to evaluate, prohibit, or limit the proposed usage.

On March 3, 2020, U.S. EPA proposed a supplemental SNUR to require notification from anyone who began or resumed the import of long-chain PFAS chemical substances as part of surface coatings on articles.  However, this proposal also included controversial “de minimis” provisions.  The proposed provisions would have established a de minimis threshold for determining “reasonable potential for exposure.”  The de minimis thresholds were proposed to address concerns that article importers might not be aware of the SNUR regulations.  However, these provisions were met with heavy criticism that they would create a safe harbor from notification and review for certain importers.  The provisions would have allowed article importers to avoid enforcement action if they could demonstrate that their use was ongoing prior to the rule’s effective date.  U.S. EPA responded to comments on the de minimis provisions stating, “[a] safe harbor approach undermines the regulatory process for what uses are allowed by permitting a manufacturer to claim a use was ongoing at the time the SNUR was issued.”

The SNUR finalized on June 22, 2020 removed the proposed de minimis provisions and in general, strengthens Federal regulation of PFAS.  A summary of the final SNUR requirements is below:

  • Makes inapplicable the exemption for persons who import a subset of LCPFAC chemical substances as part of surface coatings on articles and in carpets, which was proposed on March 3, 2020.
  • Requires persons to notify U.S. EPA at least 90 days before commencing the manufacture (including import) or processing of these chemical substances for the significant new uses defined above.
  • Initiates U.S. EPA’s evaluation of the conditions of use associated with the significant new use. Manufacturing (including import) or processing for the significant new use are prohibited from commencing until U.S. EPA has conducted a review of the notice, made an appropriate determination on the notice, and taken such actions as are required in association with that determination.

The SNUR will take effect 60 days after official publication in the Federal Register.  If you are in an industry that may be impacted by this rule, consider conducting a review of your safety data sheets (SDS) or ensuring there is a change management procedure in place to evaluate new formulations using the chemicals covered by this rule.

If you have any comments or questions please reach out via email (kturney@all4inc.com) or phone (610-422-1143).

Aerosols as Universal Waste

U.S. Environmental Protection Agency (U.S. EPA) finalized the Aerosols as Universal Waste Rule in December 2019 with an effective date of February 7, 2020.  Seven states and territories have adopted the new rule as of June 2020, with approximately 11 states reporting that their adoption will occur in 2020-2021.  For those states that have adopted, facilities can evaluate and implement – if your state has not yet adopted, practical guidance for planning and checking the timeline for adoption is provided in our observations and recommendations below.

If your facility is a small or large quantity generator of hazardous waste, and you manage spent aerosol can waste, the new rule may provide both relief from regulatory burden and a financial benefit.  Here are key highlights from the rule:

  • The new rule uses the U.S. Department of Transportation (DOT) definition of “aerosol” from 49 CFR §171.8, “an article consisting of any non-refillable receptacle containing a gas compressed, liquefied, or dissolved under pressure, the sole purpose of which is to expel a liquid, paste, or powder and fitted with a self-closing release device allowing the contents to be ejected by the gas.” That choice aligns with the definition that states with existing aerosol can universal waste regulation used.
  • The new rule allows – but does not require – the handler facility to manage the hazardous, non-hazardous, and “empty” cans together in a single system. Aerosol can universal waste handlers can puncture and drain cans, with the rule providing flexibility for facilities to incorporate their “empty” cans, cans that would have been characterized as Resource Conservation and Recovery Act (RCRA) hazardous wastes, and cans that would be characterized as non-hazardous in a single management system.  The benefits of puncturing aerosol cans include:
    • Eliminating manifesting requirements for the punctured cans – the cans become scrap metal for recycling.
    • Reduced disposal cost of generated hazardous waste – most disposal vendors charge by the drum, and puncturing cans reduces the facility’s number of drums by consolidating the volume.

Some observations to consider in evaluating implementation the rule into the facility’s management system for spent aerosol cans:

  • Universal Waste Handlers – most hazardous waste generator facilities also operate as Small Quantity Handlers of Universal Waste – can accumulate universal waste onsite for one year. Many hazardous waste generators ship waste aerosol cans in containers that are 25 to 50 percent full because of the 90- or 180-day accumulation time limits that apply to Large and Small Quantity Generators, respectively.  Moving the waste aerosol cans  out of the hazardous waste system, with those accumulation time limits, will allow consolidation and less frequent shipments when using the 1-year accumulation time limit for Universal Waste Handlers.
  • Just as compressed gas cylinders should not be stored in the flammable liquid cabinet – don’t include compressed gas cylinders in your aerosol can universal wastes. The misclassification would be twofold, as the cylinders would be incorrectly profiled with the treatment storage and disposal facility (TSDF) and the DOT hazardous material labeling and shipping papers for the container would be incorrect.
  • Puncturing and draining cans will require high-quality puncturing equipment to meet the air, waste, and health/safety standards. In addition, puncturing cans requires additional labor beyond simply handling aerosols intact as universal waste.  Facilities should conduct a cost comparison that considers these factors:
    • Generation volume
    • Technician labor and training
    • Maintenance of the puncture device – including the filter
    • Disposal cost – collected residues versus intact aerosols
  • Some states will adopt the new Aerosols as Universal Waste rule by reference, while others may adopt more stringent or complicated versions. Exclusions and labeling differences could affect how aerosol universal wastes are managed in both the small quantity handler state and the disposal facility state.
  • The new rule also requires Handlers to prepare a written procedure in the event of a spill or release and a spill clean-up kit must be provided. Spills or leaks of the contents – more likely from puncturing cans, but still possible from storing universal waste aerosol cans that leak – must be cleaned up promptly.

Recommendations:

  • Monitor the status of adoption of the rule in your state.
  • Ask your disposal vendor for pricing – and how the rule adoption has affected their operations in their disposal facility states.
  • Once your state’s rule is finalized, perform a Return-On-Investment calculation using the factors presented. If your facility does not generate enough waste aerosol cans, puncturing and draining may cost more in the long run.
  • Review your facility’s spill cleanup procedure and confirm that the requirements of the new rule are covered, especially if the facility elects to puncture waste aerosol cans.
  • Finally, with the updated spill procedures, revised labeling requirements, and potentially guidance on using the puncturing device, providing training for the affected personnel and document. The universal waste training requirements are simpler than those for hazardous waste, but new universal waste streams and management procedures drive updates that inspectors may review.

If you have additional questions, please contact your ALL4 project manager.

Top Ten Air Permitting Tips for New or Expanding Data Centers in Oregon

 

 

 

 

  1. Get to Know the Regulators – This is new to them too!

In the fall of 2019, an ALL4 data center client began the process of applying for an air permit for a new facility.  Being new to Oregon, the company referred to the guidelines provided on the Oregon Department of Environmental Quality (ORDEQ) website and set up a pre-application meeting to discuss applicable permit requirements and forms. Much of the guidance provided by the agency in the pre-application meeting shifted in subsequent discussions during application preparation due to changes in direction from Cleaner Air Oregon (CAO).

Will sources be required to submit the same documentation a year from now?  It is unclear. Companies need to understand that this program is still in its infancy and still taking shape, so they will likely need to work closely with the ORDEQ to obtain a new permit.

  1. Know Your Location

CAO evaluates facility risk based on the type of activity that is occurring at a given location in the surrounding community.  The main types of exposures CAO considers are residential, child, and worker. A couple of questions facilities will need to ask for the CAO process:

  • How close is my facility to a school or childcare center?
  • How close is my facility to land zoned for residential use?

If the answer to these questions is extremely close, the risk analysis process is going to be difficult to pass without taking additional measures such as operational limits or add-on air pollution control devices. To avoid potential permitting difficulties, companies should look at zoning maps and try to choose a location for their new facility that is land zoned for industrial usage.

  1. Recognize That CAO Requirements are Unique –TAC Emissions Factors and Cold Start Emissions

CAO has unique requirements for determining source emissions from engine-generators.  Unlike other state agencies which allow facilities to reference U.S. EPA AP-42 for Hazardous Air Pollutant (HAP) emissions factors, CAO provides facilities with Toxic Air Contaminant (TAC) emissions factors from a combination of sources (e.g., South Coast Air Quality Management District, Ventura County Air Pollution Control District, National Council for Air and Stream Improvement) for a specific source category and fuel type.  According to the agency, these are conservative factors that should be applicable to all equipment in the given emissions source category (e.g., diesel-fired internal combustion engines).  However, these emissions factors don’t take into consideration unit size, manufacturer year, or other equipment specific factors.  Facilities should be aware that they will be held to these given emissions factors and could be required to source test for TAC to show compliance.

Another unique CAO requirement compared to many other state agencies is the need to account for cold startup emissions in the air toxics analysis for internal combustion engines.  The calculations required are extremely conservative and do not consider equipment specific factors unless a facility can support alternative numbers. New facilities should work with their engine manufacturers to see if other documentation can be used to support a more accurate and less conservative cold start emissions estimate.

  1. Expect to Model Your Facility’s Emissions

In order to meet CAO requirements, there are four possible CAO Risk Assessment scenarios that a facility may be required to complete. The basic Level 1 Risk Assessment is a conservative excel model that estimates the worst-case scenario of possible risk. For the most part only facilities that have low emissions rates, large stack heights, and large distances to property line (or at least 2 out of the 3) will be able to conduct a CAO Level 1 Risk Assessment.  The Level 2 and Level 3 Risk Assessments use modeling software and site-specific parameters to provide a more realistic estimate of the facility’s risk. These models tend to be more time-consuming but are often required for large facilities to meet CAO requirements. There is an extremely comprehensive modeling effort required for Level 4 Risk Assessments, but most facilities will not need complete a Level 4. New or expanding facilities should expect to spend additional time modeling TAC emissions to pass CAO requirements.

  1. Be Prepared – Modeling Gets Complicated Fast

To complete a Level 2 or 3 Risk Assessment, facilities need to develop a detailed list of model inputs including site-specific stack characteristics, building information (to account for building downwash), terrain data, specific exposure locations, and site-specific land use parameters. The quantity and complexity of parameters add up quickly and can easily become overwhelming.

What also gets complicated fast is the amount of data that needs to be managed.  On average facilities could be reporting anywhere from 10-50 TACs per emissions source.  Multiply that by the number of emissions sources, the number of exposure locations, and 43,824 hours (the number of hours in the required 5-year meteorological dataset), and very quickly your CAO Risk Assessment includes over a million datapoints.

Therefore, it’s not only necessary to have a trained air quality modeler involved, but you also need to be able to manage a large amount of data.  This becomes increasingly important when you need to start analyzing the modeling results to determine what sources and what TAC may be driving risks and therefore require refinement.

  1. Be Prepared to Evaluate Controls and/or Operational Limits

To pass CAO modeling requirements, facilities are required to meet CAO Risk Action Levels (RALs). RALs are low for new facilities, and thus tough to meet. RALs for existing facilities making changes are larger values so they offer the facility greater flexibility. RALs specify what level of action is needed in response to facility risk. The RALs can specify that no additional measures are required, permit conditions are required to manage risk, a community meeting is required to be held, risk reduction needs be taken (looking at add-on control devices and/or operational limits), or lastly the application is denied. Without any add-on controls, ALL4’s data center client was not able to meet the RALs. Therefore, the facility chose to install Miratech Low Temperature Regeneration control devices on the engine-generators to reduce the key organic and particulate-based TACs that exceeded the RALs.

If you are a new or expanding data center, do not order the generator engine before working through the modeling. To meet CAO requirements, there is a high probability additional measures will need to be taken.

  1. Anticipate That Permit Limits Will Be on a Daily and Annual Basis

For new data centers installing numerous emergency generators, fuel limits can be the ideal approach because they allow the generator engine more operational flexibility than hours limits, assuming the engines rarely operate at full engine load. However, this becomes tricky when modeling assumptions are incorporated into the air permit and the facility begins to look at limits on an hourly, daily and annual basis. Suddenly, the nice round annual amount of fuel gets divided up amongst units and then divided even smaller into daily quantities. Be prepared for this to be reflected in the permit. It does not mean that new facilities cannot use fuel usage to set emissions limits, but they should expect to see daily caps as well as annual caps which could result in less favorable operational flexibility for the facility.

  1. Plan for a Public Hearing – Not a Cause for Concern

CAO is a rulemaking process that was created in response to communities raising concerns about exposure to potentially harmful heavy metals and chemicals emitted as pollutants from manufacturing and other industrial sources. So, a new facility may be concerned that the public may be an obstacle to obtaining the required air permit.  However, during the public hearing for this ALL4 data center client, there were no comments from the public. That was also the case for an earlier public hearing for a different, smaller data center. These hearings were held virtually, so the atmosphere could change once businesses begin to open back up after COVID-19, but from our experience to date, public hearings should not be cause for concern for new facilities.

  1. Expect That Source Testing is Required for More Pollutants

CAO requires source testing for all limited pollutants including TAC. This could mean additional considerations for the stacks and ports themselves but also a significant increase in the level of effort and laboratory analysis (and therefore cost) required to evaluate pollutants beyond just nitrogen oxides (NOx), carbon monoxide (CO), and particulate matter (PM).  ORDEQ has specified that these testing requirements could change in the future but will likely be required for facilities starting out. New facilities should also know that the operating time and fuel usage for emissions testing are counted towards permit limitations, so they should budget additional hours and/or fuel for the tests below.

  1. Budget Enough Time; This is an Extensive Process

In August 2019, this ALL4 client in Oregon began air permitting efforts with the eventual goal to start a data center in the spring of 2020. Right away, ALL4 began researching permitting requirements and a preapplication meeting was held in October. Following this meeting, an initial submittal to ORDEQ was made. However, a lot more work was still required to get the client to a draft permit.

After preliminary modeling showed that the facility was unable to pass CAO requirements without add-on controls, ALL4 began modeling facility emissions in multiple scenarios (e.g., varying control efficiencies and operational limits) to find a passing scenario that met the needs of the client. Modeling took multiple months as the agency modified their guidance and model inputs required refinement. By the end of February, the client received the agency’s approval on their initial file submittal and could submit modeling files. Subsequent discussions with the agency and a design change by the client led to additional model modifications, and the model was finally approved in early April.

In addition, to working through the CAO process, the client also needed to work through the air permit application process. This meant discussing applicable forms, restrictions, and permit conditions. A draft permit was issued at the end of April, but ALL4 and the client had additional comments that the agency needed to review and incorporate into the document. On May 20th, the 30-day public notice was posted and a public hearing was set for June 11th. Since there were no public comments, the air permit was finalized quickly and issued in June.

11 Months. That is how long it took for this facility to obtain its air permit.  Each time the agency goes through this process, the timeline may decrease but this is a long, extensive process that may require multiple submittals and lots of discussion, even with a great team supporting the effort. Is it possible to get a permit under the new CAO requirements? Yes, but plan accordingly.

If you are a new or expanding data center don’t wait to get started! If you have questions or needs help with air permitting efforts please reach out to Renee Cheng at rcheng@all4inc.com or by phone at (571) 392-2593.

Update on Texas Legislative Session House Bill 2726 – Commencement of Construction

The term “commencement of construction” is very important within the context of facility modifications and the potential need to obtain a final permit to construct in advance of actual construction activities.  The provisions of House Bill 2726 (HB 2726) if finalized, would ease the requirement to have a final permit to construct in hand before beginning construction on certain projects at existing facilities.

In April 2019, ALL4 provided an update regarding commencement of construction as addressed in House HB 2726 of the 86th Texas Legislature.  HB 2726 specifically addresses commencement of construction of a project following the issuance of a draft permit for an amendment to a New Source Review (NSR) air quality permit (i.e., construction commencement before issuance of a final permit).

TCEQ is required to follow their rule making process to incorporate HB2726 into the TX Administrative Code. Under this process, on January 10, 2020 the proposed rulemaking was introduced via Docket No.: 2019-1588-RUL – Commission Approval for Proposed Rulemaking Chapter 116, Control of Air Pollution by Permits for New Construction or Modification was presented to Texas Commission of Environmental Quality (TCEQ) on January 10, 2020.

A summary of Docket No.: 2019-1588-RUL is presented below:

A.) Summary of what the rulemaking would do:

Chapter 116 would be amended to provide the framework and associated conditions to support the pre-permit construction activities allowed by Texas Health and Safety Code (THSC), §382.004. The new §116.118 rule would include requirements establishing the applicability and scope of the rules, as well as, restrictions and limitations. Additional existing sections in Chapter 116 would be revised to add cross references to new §116.118 to address construction and modifications.

B.) Scope required by federal regulations or state statutes:

Proposed new §116.118 would allow an applicant for a permit amendment to begin construction once the draft permit is issued, as provided for under THSC, §382.004. Construction is at the applicant’s own risk and the rule language reflects that the commission shall evaluate the permit application without considering construction initiated under this rule.  THSC, §382.004 also specifies that pre-permit construction is only allowed “to the extent permissible under federal law” and certain restrictions in proposed §116.118 relate to permit actions which, under federal law, are not eligible for pre-permit construction.  Therefore proposed 116.118 specifically excludes projects which trigger federal Prevention of Significant Deterioration (PSD) permitting, Nonattainment Review permitting and case-by-case Maximum Achievable Control Technology (MACT) determinations. These proposed conditions are included for consistency with federal law and to ensure the rules meet United States Environmental Protection Agency (U.S. EPA) criteria for approvability as a state implementation plan (SIP) revision.

Applicants for an air quality NSR permit would have more flexibility to commence construction when modifying an existing facility.  The proposed rule provides the option to begin construction before the final permit is issued by TCEQ and allows for a reduction in wait time for permit approval.  Thus, completing construction and beginning operation sooner than if applicants would have to wait for final permit issuance as opposed to issuance of the draft permit.  However, if the final permit issued by TCEQ includes differences from the draft permit, the applicant may incur additional costs to retrofit or modify the facility construction to meet the conditions of the final permit. These regulations are not applicable to greenfield applications.

TCEQ is acting as required by HB 2726 to establish new requirements for at-risk permitting and the commencement of construction process as related to NSR permitting.

The steps for final rule adoption include:

  • The public comment period ended March 7, 2020.
  • The commissioners discussed HB 2726 and voted to adopt on July 15, 2020.
  • Since the commissioners voted to adopt, the rule is sent to “adoptions” and then published in the Texas Register. Publication in the Texas Register is estimated to be on or about July 31, 2020.
  • The anticipated rulemaking effective date would be August 8, 2020, as that is 20 days after final publication in the Texas Registrar.

The future predicted dates are subject to the regulatory process of TCEQ and may be delayed.

Stay tuned for additional updates as HB 2726 makes its way through the rule making process over the next few weeks. Have questions? Reach out to Houston Project Manager, Meghan Skemp at mskemp@all4inc.com or 281.937.7553 x307.

How to Navigate Texas Emissions Banking and Trading (EBT) Programs in Houston

This is the fourth and final blog in a series where I discuss Texas Emissions Banking and Trading (EBT) Programs specifically in the Houston-Galveston-Brazoria (HGB) region.  In this edition, I will discuss different strategies companies can use to get the most out of the EBT system, focusing in on two circumstances:

 

 

  • What do I do if I need allowances; and
  • What do I do if I have excess allowances?

Many facilities that undergo process changes or expansion find that they don’t have enough emissions allowances to cover their annual emissions, and they are stuck with the reality that they must purchase additional allowances to cover the difference.  The cost of these allowances are often overlooked and should be included in the cost estimate of a project during its planning phase to avoid an unanticipated project cost overrun.  There are a few different types of allowances that can be used for compliance purposes.  Depending on the type of allowance purchased (as I will discuss later), the cost can be either a capital cost or an operating cost.

If a company finds that they are short in emission allowances and need to purchase additional emissions allowances, there are a variety of options to choose from.  The first option is to buy “stream” allowances, or allowances that do not expire.  Since they do not expire, they do not have to be purchased each year and are considered a capital cost.  Another option is to purchase “current” allowances.  Current allowances are one-time-use allowances that are usable for the designated compliance period in which they are purchased for, and therefore are considered an operating cost.

For example, if Company X is allocated 100 tons of allowances each year, but only needs 90 tons of allowances for compliance in a year, they can sell 10 current allowances to another facility.  In the following year, Company X will get another 100 tons of allowances allocated to their facility.

The last option is to purchase “vintage” allowances.  Vintage allowances are also one-time-use allowances and are used the same way as current allowances.  Vintage allowances are unused allowances which can be used for compliance in the following compliance year.  However, the vintage allowances are only good for one year before they expire.  When using allowances for a control period, the Texas Commission on Environmental Quality (TCEQ) will deduct allowances with the most recently allocated allowances before deducting vintage allowances to prevent accumulation of unused allowances.

A facility may also find themselves in the position of having a surplus of allowances.  These surpluses usually come from process changes, the installation of air pollution control devices, or partial/total facility shutdowns.  These surplus allowances can be sold in the same way described above.

If a facility plans on needing the allowances in the future, they should consider keeping the stream allowances and selling their vintage and current allowances every year.  If a facility does not plan on needing the allowances or wants a large chunk of change to invest in another project, the stream allowances could be sold.

Facilities can purchase or sell emissions allowances directly to/from another facility, or through an emissions broker.  While the TCEQ keeps a list of historical allowance purchase prices, it is not the most up-to-date resource to find current allowance prices; therefore, many companies choose to use an emissions broker for selling and purchasing decisions.  The TCEQ keeps an up-to-date list of companies buying/selling emissions allowances on this website.

This concludes the EBT Programs blog series where I discussed how to navigate the cap and trade world in the HGB region.  If you missed any of the blogs in this series, be sure to read “Did you know there are 5 emissions trading programs in Texas?!”, “How Does the Texas Mass Emission Cap and Trade (MECT) Program Affect Houston?”, and “How does the Highly Reactive Volatile Organic Compound Emissions Cap and Trade (HECT) program affect Houston?”.  The first article gives a general overview of the programs, while the second and third dive into details of the MECT and HECT programs.  If you have any questions regarding any of these blogs, please reach out to me at thenson@all4inc.com and 281-937-7553 x308.

U.S. EPA Proposes Changes to Boiler MACT Emissions Limits

The National Emission Standards for Hazardous Air Pollutants (NESHAP) for Industrial, Commercial, and Institutional Boilers and Process Heaters (which implements Maximum Achievable Control Technology (MACT) standards and is therefore also known as Boiler MACT) was promulgated on March 21, 2011, and amended on January 31, 2013 and November 20, 2015.  Existing units have been in compliance for a few years now and have started to get used to complex monitoring requirements and electronic reporting.

On July 9, 2020, U.S. EPA signed a proposal that responds to multiple court decisions.  U.S. EPA is re-affirming its conclusion that carbon monoxide (CO) is a good surrogate for non-dioxin organic HAP and that a 130 ppm CO concentration threshold represents MACT for organic HAP for six subcategories (Pulverized Coal, Coal Fluidized Bed, Heavy Liquid Fuel, Light Liquid Fuel, Non-Continental Liquid, and Process Gas).  U.S. EPA has also reviewed subcategories with limited datasets (less than seven test runs) and has reviewed emissions data from multi-fuel units previously excluded from its emissions limits calculations and is proposing to revise 34 different emissions limits.  Of these 34 emission limits, 28 of the limits would become more stringent and six of the limits would become less stringent.  There are also a few technical corrections proposed to correct errors and improve clarity, and a discussion in the preamble about a possible change to incorporate procedures into the rule for using carbon dioxide (CO2) instead of oxygen (O2) as a diluent.

What Emissions Limits is U.S. EPA Proposing to Change?

Table 1 of the preamble lists the limits that U.S. EPA is proposing to change based on their re-analysis of the dataset used in the 2013 rulemaking.  For existing boilers, the changes to note are small reductions in the hydrogen chloride (HCl) and mercury limits for solid-fuel units and several changes to biomass-fired unit CO and particulate matter (PM) limits.  For new units, several proposed limits are significantly more stringent than current limits, such as the HCl limit for new solid-fuel units.  The table below, from the preamble of the pre-publication version of the proposed rule, lists the revised limits that U.S. EPA is proposing.

What Happens Now?

After the proposal is published in the Federal Register, the rulemaking docket will open and there will be a 60-day public comment period.  Stakeholders will review the justification for CO as a surrogate for non-dioxin organic HAPs and the 130 ppm limits and will examine U.S. EPA’s development of the proposed revisions to the various emissions limits.  Facilities subject to the Boiler MACT should review the emissions limits that are proposed to change and determine if compliance strategies may need to be adjusted.  The rule will likely be finalized some time in 2021 and U.S. EPA proposes to give three years for facilities to demonstrate compliance with the revised limits.  Affected facilities should realize that there is a chance that the final limits will look different than the proposed limits, but should plan for the possibility that adjustments in fuel mix or operating limits may be needed to comply.  Although we’ve seen several iterations of a Boiler MACT in the past two decades, even this change is not the last.  U.S. EPA is also obligated to conduct a risk and technology review of the rule, and that review could lead to more stringent requirements as well.  ALL4 staff are keeping on top of the developments and will be assisting industry in reviewing the technical information in the docket once the proposal is published.  Reach out to Amy Marshall for more information.
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U.S. EPA Will Add 1-Bromopropane (1–BP) to the List of Hazardous Air Pollutants

On June 18, 2020 the U.S. Environmental Protection Agency (U.S. EPA) announced that they are granting petitions to add 1-bromopropane (1-BP, Chemical Abstract Services Registry Number [CASRN] 106-94-5) to the HAP list in Section 112(b)(1) of the CAA.  This is the first time U.S. EPA has granted petitions for the addition of a pollutant to the HAP list.  1-BP, also known as n-propyl bromide (nPB), is a solvent primarily used in industrial applications such as adhesive sprays, metal and plastic degreasers, electronic components, and in dry cleaning operations.

View Federal Register Notice

On October 28, 2010 and November 24, 2011, the Halogenated Solvents Industry Alliance (HSIA) and New York State Department of Environmental Conservation (NYSDEC) submitted petitions to add 1-BP to the Section 112(b)(1) HAP list in accordance with CAA section 112(b)(3).  The U.S. EPA independently added 1-BP to the Community Right-to-Know Toxic Chemical Release Reporting requirements and has incorporated the pollutant into the U.S. EPA Substance Registry Services after the petitions were submitted.  1-BP is also undergoing a Toxic Substances Control Act (TSCA) risk evaluation.

On February 6, 2015, U.S. EPA published receipt of a complete petition from HISA in the Federal Register and opened the petition for public comment and technical review.  On January 9, 2017, the U.S. EPA published a draft response document in the Federal Register providing their rationale for granting the petition to add 1-BP to the HAP list.  In this draft, the U.S. EPA stated that emissions of 1-BP and associated ambient air concentrations “…may reasonably be anticipated to cause adverse effects to human health”.  The primary risk driver in the HSIA analysis was associated with an industrial degreasing operation where modeled 1-BP emissions resulted in unacceptable health risks.  U.S. EPA determined the risk assessment provided by HSIA to be a reasonable assessment of the risk posed by 1-BP and concluded that information provided by petitioners was sufficient to define 1-BP as a HAP.  This action by U.S. EPA by itself does not impose any immediate regulatory or statutory obligations on area or major sources of 1-BP emissions.

Although there are no immediate regulatory obligations that result from adding 1-BP to the HAP list, area sources of HAPs that emit 1-BP should determine if they will become a major HAP source.  Facilities can consider limiting individual and/or total HAP emissions through a federally enforceable restriction to remain an area source.  If a facility becomes a major HAP source, they will need to be aware of the possible applicability of major source national emission standards for hazardous air pollutants (NESHAP) requirements and the possibility of becoming a major source under Title V.

When a pollutant is added to the HAP list, the process of bringing the air pollutant into consideration for regulation under the NESHAP program under CAA section 112(d) is initiated.  Now that U.S. EPA has granted the petitions, the next step is a Federal Register notice formally announcing the addition of 1-BP to the HAP list.  U.S. EPA will then likely begin to establish regulatory requirements for 1-BP under 40 CFR part 63 Subpart T – National Emission Standards for Halogenated Solvent Cleaning. U.S. EPA can several years to review a NESHAP and propose changes.  The schedule will depend in part on how much additional information is needed and whether an information collection request (ICR) is issued to industry.  A public comment period (typically 60 days) will be provided for any proposed regulatory changes, and a final rule will likely be established about one year after the proposed rule.  Any new final standards for 1-BP would likely have a 3-year compliance timeline.

In addition to likely regulatory changes for halogenated solvent cleaning, U.S. EPA is also evaluating regulation of 1-BP emissions from dry cleaning operations.  Currently, the only pollutants covered under the dry-cleaning source category are perchloroethylene (PERC), methylene chloride, and trichloroethylene (TCE).  Under CAA section 112(c)(5) the EPA can modify CAA section 112(c)(1) to regulate 1-BP from area sources.  The regulatory and compliance timeline for any changes to the dry cleaning emissions standards will be several years.  ALL4 will be tracking these regulatory developments and can keep you up to date and help you strategize.  If you have any questions, please contact your ALL4 project manager or Tom Timms at TTimms@all4inc.com.

North Carolina Division of Air Quality Proposes Changes to Title V Program Fee Structure

On July 8, 2020, in a presentation to the North Carolina Air Quality Committee, the North Carolina Division of Air Quality (NCDAQ) presented proposed revisions to its existing Title V program fee structure.  The concept presentation provided the motivation for creating a Stakeholder Workgroup, comprised of representatives of North Carolina Title V facilities, lawyers, conservationists, and consultants, to explore projected Title V program funding gaps, beginning in fiscal year 2020-2021, and provide recommendations to remedy the deficit.

Clean Air Act (CAA) Section 502(b)(3) requires each state air agency to collect fees from Title V facilities that are “sufficient to cover all reasonable (direct and indirect) costs required to develop and administer the permit program”, with failure to comply potentially resulting in the EPA partially, or fully, withdrawing approval of the state Title V permit program.  Administration of the permit program includes implementation and enforcement of regulations, permit review, emissions and ambient monitoring, and modeling analyses.  The current North Carolina fee structure in 15A NCAC 02Q .0203 that went into effect on March 1, 2008, applies fees based on annual tonnage of regulated CAA pollutants, for issued permits, permit modifications, and for nonattainment area fees (if applicable).   Since 2011, tonnage fee rates and permit application fees have been allowed to adjust annually, based on the Consumer Price Index.

An internal review of the Title V program revealed that expenditures have exceeded income over the past 5 years, despite a reduction in costs primarily achieved through a reduction in NCDAQ staff (from 303 in 2006 to 209 in 2020).   The recent revenue reduction (27% decrease in annual funding over the past 10 years) can be attributed to a 13% decrease in North Carolina Title V facilities, combined with a 17% increase in inflation.   Although tonnage fees account for a slightly lower percentage of revenue (64% of total funding in 2020 compared to 75% in 2009) than in previous years, a 57% decrease in tons billed has been realized since 2008, primarily as a result of better air quality.

NCDAQ currently projects a $1.6 million funding gap in FY 2020-2021.  In addition to a reduction in fee receipts, part of the basis of the projection is an internal determination that NCDAQ staff under-charged time to the Title V program.  NCDAQ is cognizant of the importance of retaining talent and recruiting new employees to fulfill its mission to the public in protecting ambient air quality and to maintain the level of service currently provided to regulated facilities.   As the majority of the current staff have salaries below the Market Salary Index (MSI), NCDAQ proposes establishing a, “single, objective, and transparent salary structure” to move salaries closer to the MSI, and has included this initiative in funding projections.

The Stakeholder Workgroup reviewed the fee structures enacted in other Southeastern states and found that each state uses a different combination of tonnage fees, base annual fees, application fees, hourly review fees, and various “a la carte” fees.  NCDAQ tonnage fees and minor modification application fees are lower that the majority of other Southeastern states, and it was noted that several neighboring states (South Carolina, Tennessee) are also pursuing increases in facility fees of various forms.  Although increasing tonnage fees to better align with neighboring states is an option, the reliance on emissions, a source with declining trends, was acknowledged as a risky and insufficient long-term funding solution on its own.   As such, other options were reviewed, including:

  • Per-ton fees for Hazardous Air Pollutants (HAP)
  • Introduction of a “Complexity Fee”
  • Introduction of “A la Carte” compliance fees
  • Hourly review fees

The “Complexity Fee,” currently utilized in Virginia, assigns fees based on the complexity of the facility and partially addresses the increased workload facing NCDAQ staff, despite emissions reductions, due to federal regulations implemented since the last fee change.   Although complexity of individual rules varies, quantifying the number of federal programs applicable to a facility (NSPS, MACT, PSD, NESHAP, etc.) provides an objective evaluation metric used to establish complexity tiers for a fee structure.   “A la Carte” fees would establish a relationship between the level of effort required to conduct the service, such as ambient monitor maintenance and observations of stack tests.   Hourly review fees, not currently common in Southeastern states, would provide a revenue stream similar to consulting firms.

NCDAQ tasked the Stakeholder Workgroup to provide recommendations for a revised fee structure that is simple, has long-term viability, and could initiate the rule-making process.  The recommendations included an increase in (but reduced reliance on) tonnage fees, introduction of a “Complexity Fee,” and phasing in NCDAQ salary initiatives over a 3-year period.   Based on the recommendations, NCDAQ is proposing the following revisions to its Title V fee structure, which, if enacted, are projected to result in an increase of approximately $2.0 million per year over the current 2020 budget, eliminate the projected funding gap, and meet CAA requirements:

  • Annual fee increases from $7,423 to $10,000 per facility
  • Tonnage fee increases from $34.25/ton to $40.00/ton
  • Minor modification fee increases from $988 to $3,000
  • Significant modification fee increases from $988 to $7,000
  • A three-tiered Complexity Fee ($0 for facilities with less than 2 federally applicable programs; $2,500 for facilities with 3-6 federally applicable programs; and $7,500 for facilities with 7 or more federally-applicable programs)

NCDAQ is currently engaging the regulated community regarding its comprehensive rule concept with the intent to request to proceed to public hearing in late 2020 and for the rule to become effective in Spring 2021.  Although the final fee changes could be different than those presented here, facilities in North Carolina should plan for additional fees related to air emissions and air permitting starting in 2021.

Contact Ryan Cleary at rcleary@all4inc.com for more information.

 

ALL4 at the Virtual Air Seminar Hosted by the Environmental Federation of Oklahoma (EFO)

On June 17, 2020 ALL4 attended the Environmental Federation of Oklahoma (EFO) Virtual Air Seminar.  There were approximately 140 people that attended the webinar.  Listed below are the important topics discussed:

 

 

  • Oklahoma Department of Environmental Quality (ODEQ) Air Quality Division Updates
  • Tank Air Emissions Updates in United States Environmental Protection Agency’s (U.S. EPA) Compilation of Air Pollutant Emissions Factors (AP-42)
  • Accidental Air Release Reporting Rule

ODEQ Air Quality Division Updates

During the seminar, Madison Miller, Supervising Attorney for the Air Quality Division took the virtual stage and discussed relevant matters at ODEQ.  These matters included the following:

  • Penalty Guidance Document
  • COVID-19 Enforcement Discretion
  • Oklahoma Permitting, Rules and Planning

Effective January 2020, ODEQ issued a revision to its Air Quality Division Penalty Guidance Document.  The current guidance document is located here.  The revisions to the guidance document focus on high priority violation (HPV) criteria and HPV calculations.  Specifically, HPV 4 and 5 criteria has been updated to include recordkeeping requirements that were previously omitted, and HPV 1, 2, 3 and 4 penalty calculations have been updated.  In addition, State Criteria Level 1 violations have been updated along with state calculations.

On March 30, 2020, ODEQ issued a guidance document detailing the enforcement discretion policy related to COVID-19.  The policy document is located here.  In summary, ODEQ will work with Facilities on a case-by-case basis to determine the most effective approach to determine compliance.  Most enforcement requests have been related to the postponement of sampling and training programs.  Currently there is no published guidance indicating the end of this policy.  It is important to be in communication with ODEQ if your facility may experience a noncompliance event as a result of COVID-19.

ODEQ is proposing to amend the air quality portions of Chapter 4 to better align the with the public participation procedures for Part 70 source construction, New Source Review (NSR) permit requirements and Title V operating permit requirements issued by U.S. EPA.  The proposed rulemaking, with strikethroughs and text additions, is located here.  ODEQ will now post most Tier II and Tier III application public notices on their website.  Written public comment were accepted until June 17, 2020 and oral comments can be made at a September 17, 2020 Environmental Quality Board Meeting.  ODEQ intends to finalize updates later in 2020.

Tank Air Emissions Updates in AP-42

The U.S. EPA has updated Chapter 7.1 (Organic Liquid Storage Tanks) of its AP-42.  The updates were published in November 2019 and March 2020.  As a result, TANKS 4.09D emissions estimation software contains incorrect assumptions.  TANKS 4.09D has not been a supported software for quite some time and is not an acceptable method to quantify tank emissions.  Therefore, ODEQ requires tanks emissions calculations in permit applications and compliance demonstrations to use this most recent estimation approach as issued by U.S. EPA, starting April 9, 2020.  Software packages, process simulators, Microsoft Excel-based solutions and direct measurements are acceptable ways to quantify emissions in permitting and compliance contexts.  ODEQ is currently working on their own calculation tool to calculate tanks emissions.  The tool is not yet complete and is anticipated to be finished by the end of the year.

Based on the Chapter 7.1 updates, the questions a Facility needs to consider are:

  • Do the AP-42 updates impact my existing tank permitted emissions rates?
  • Will I have to update the air emissions inventory (EI) information or toxic release inventory (TRI) air release calculations for next year’s reports?

Accidental Air Release Reporting Rule

Starting on March 23, 2020, facilities are required to report extra chemical releases information associated with stationary sources.  Each Facility must report information to the Chemical Safety and Hazard Investigation Board (CSB) regarding any accidental release of regulated substance or extremely hazardous substance that resulted in a fatality, serious injury, or substantial property damage within eight hours of the release.  The rule is codified in 40 Code of Federal Regulations (CFR) Part 1604 and was published in 85 Federal Register (FR) 10074, pages 10074-10095, located here.  Under the Accidental Release Reporting Rule, reports can be sent via email to report@csb.gov or can be called in using the phone number of 202-261-7600.  Information included in the initial report can be updated within 30 days of the original report.  The CSB will refer suspected violations to U.S. EPA, for those Facilities that fail to report properly.  U.S. EPA may then take enforcement action.  Be sure your Facility employees are aware of this new rule and are equipped with the training needed to report releases properly to the CSB.

Reminder: Environmental, Health, And Safety

Audit Privilege Act

As a reminder, Oklahoma’s Environmental, Health, And Safety Audit Privilege Act (Act) became effective November 1, 2019.  Now is a good time to consider a compliance audit under the Act to identify any potential compliance gaps at your Facility.  The Act is a good resource for you to evaluate your facility’s environmental compliance to uncover potential unknown environmental liabilities without the concern for enforcement actions.

Upcoming EFO Fall Conference

The 29th EFO Annual Meeting and Trade Show is tentatively scheduled for October 12-14 in Tulsa, OK.  My most recent blog for last year’s event is located here.  ALL4 plans to attend the conference whether that be virtually or in-person.  In the meantime be sure to reach out to me if you have any additional questions or comments about our work within Oklahoma at fdougherty@all4inc.com or 281-937-7553 x302.

PA Climate Policy Roadmap

Pennsylvania ranks as one of the top five energy-producing states in the nation, and yet is simultaneously proactive when it comes to promoting clean energy generation, reducing energy consumption, achieving phased greenhouse gas (GHG) reduction goals, and encouraging the adoption of climate change adaptation and reduction strategies across multiple sectors. In this article, we will discuss the various factions at the state level that are shaping Pennsylvania’s climate future and the formal actions that have been taken to date by those parties; the Pennsylvania Climate Action Plan and the state’s GHG emissions reduction goals; the eight sectors within Pennsylvania that are currently targeted within the Climate Action Plan as contributing to the state’s GHG emissions profile, and the various strategies and actions (both sector-specific and cross-cutting) those sectors are encouraged to take to reduce the state’s overall GHG emissions; and the role of the regulated and voluntary carbon markets with respect to Pennsylvania facilities.

Read Article 

This article appears in the July 2020 issue of EM Magazine, a copyrighted publication of the Air & Waste Management Association (A&WMA; www.awma.org).

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