The 2022 Look Ahead is a multi-part series consisting of 20 articles to celebrate ALL4’s 20th anniversary.

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Looking Ahead to The Future of Air Quality Compliance // Roy Rakiewicz 

Those who have been involved with air quality compliance for the past 35 years as part of the regulated community, as regulators, or as environmental consultants have witnessed a monumental transformation in the very nature and meaning of compliance.  To understand the future of air quality compliance, it is helpful first to look at the past.

Prior to the 1990 clean air act amendments (CAAA), air quality compliance requirements were rule specific [e.g., Standards of Performance for New Stationary Sources (NSPS) or Reasonably Available Control Technology (RACT)] or as specified in a permit to construct [e.g., Best Available Control Technology (BACT) or Lowest Achievable Control Technology (LAER)].  With the exception of regulations that required a facility to install and operate continuous emissions monitoring systems (CEMS), continuous opacity monitoring systems (COMS), or certain air pollution control devices (e.g., thermal oxidizers), compliance with air quality requirements was passive.  In other words, compliance was assumed unless a facility failed a stack test or a compliance inspection by a regulator uncovered a violation.

Things changed drastically in the 1990s as the passage of the 1990 CAAA significantly altered the compliance landscape of the regulated community.  The newly created Title V operating permit program, which consolidated air quality requirements into a single permit, permanently changed air quality compliance at major facilities to an active program with the implementation of periodic compliance reporting (e.g., semi-annual reports) and annual compliance certifications for all applicable air quality requirements.  The annual certification requirement resulted in a new compliance focus at affected facilities because environmental staff now had to develop and provide compliance documentation to a responsible official (e.g., plant manager) to personally certify compliance with all applicable air quality requirements, at the risk of criminal fines.  On top of Title V, Title III of the 1990 CAAA identified a list of 189 toxic air pollutants that resulted in a suite of new National Emissions Standards for Hazardous Air Pollutants (NESHAP) under 40 CFR Part 63.  A common thread across the new Part 63 NESHAP was an enhanced compliance monitoring and reporting approach, including requirements for deviation reporting and compliance certification by a responsible official.

Air quality compliance obligations for the regulated community (and the regulators) continued to expand into the new millennium with the 40 CFR Part 64 Compliance Assurance Monitoring regulations, the need to develop “gap-filling” monitoring for regulations with no specific monitoring obligations, the continued development of Part 63 NESHAP regulations, and the evolution of compliance approaches including fence line and flare monitoring requirements.  The increased reliance of regulatory agencies on electronic compliance reporting and the expanding availability of facility’s air quality permits, applications, and compliance records on-line has led to a level of transparency that was previously unimaginable.  As a result, a facility’s air quality compliance history as well as other reported information (e.g., Toxics Release Inventory reports, Greenhouse Gas (GHG) reports) and related data are typically available to those who care to look or ask for it.

You may be wondering who, outside of a regulatory agency, would be interested in your facility’s air quality compliance information, which is a fair question.  The short list could include:

• Investors and Creditors – conscientious investors and lenders may be interested in facility sustainability practices or whether there is a robust Environmental, Social, and Governance (ESG) program, which is among the hottest topics in the environmental and investment worlds these days.
• Competitors – to benchmark their own environmental performance or to glean what they can from a facility’s reports and compliance data.
• Non-governmental Organizations (NGO) – to audit a facility’s environmental performance or to gather information for use to critique a proposed permitting action.
• Civil Rights Groups – to review Environmental Justice (EJ) concerns. EJ policies and the Civil Rights Act provide a means for interveners to critique a permit action as being deficient or to claim the permitting agency has not properly considered a facility’s impacts on the community and could be included as part of the grounds for permit denial when outside entities choose to oppose issuance of a construction permit.
• Local and National Press – to support an investigative news story concerning a local facility’s environmental performance or the cumulative impacts of co-located facilities on community health risk.
• Neighbors – local residents who fear they are being exposed to harmful emissions.  Note that U.S. EPA is now providing grant money to “to enhance ambient air monitoring in communities with health outcome disparities from pollution and the COVID-19 pandemic.”

The new reality is that it may no longer good enough for a facility to merely be in compliance with permit terms and conditions given the risks associated with third party interests and potential actions (e.g., “community” monitoring using low cost sensors, third party objections to compliance monitoring permit terms, EJ claims, etc.).  Facilities with robust monitoring and reporting systems, consistently strong air quality compliance records, and a culture of continuous improvement should not fear the interests of others in their compliance performance.  Rather, such facilities should evaluate compliance in the context of third party risks and consider what, if any, additional “beyond compliance” actions may be appropriate.  For everyone else, now may be an opportune time to take a fresh look at facility baseline compliance monitoring and reporting systems and to make improvements, as applicable, to limit the risks associated with the future of air quality compliance.  For more information please reach out to Roy Rakiewicz or your ALL4 project manager.

Waste to Energy Air Regulatory Look Ahead //  Lindsey Kroos

Waste to Energy (WTE) is not a new concept, but it’s been garnering some attention recently such that we thought we’d explore what has taken place and look ahead to what may be in store for 2022. Two topics in particular that are at the forefront of the activity are municipal waste combustion regulations and pyrolysis and gasification regulations (or lack thereof). But before diving into the energy part, let’s first discuss the waste part; specifically, solid waste combustion.

Clean Air Act Section 129

Air emissions from combustion sources (e.g., boilers, engines, etc.) are regulated under Sections 111 and/or Section 112 of the Clean Air Act (CAA), unless those sources combust waste. Air emissions from solid waste combustion are regulated under Section 129 of the CAA, aptly titled Solid Waste Combustion. For example, a boiler that combusts coal may be regulated under CAA Section 112 by 40 CFR Part 63, Subpart DDDDD (National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters), commonly referred to as Boiler MACT. However, a boiler that combusts solid waste would instead be regulated under CAA Section 129 by 40 CFR Part 60, Subpart CCCC (Standards of Performance for Commercial and Industrial Solid Waste Incineration Units) or Subpart DDDD (Emissions Guidelines and Compliance Times for Commercial and Industrial Solid Waste Incineration Units), commonly referred to as the CISWI Rules.

The distinction between a fuel and a solid waste is not always straightforward. Whether a material is a fuel or a solid waste can be determined by consulting 40 CFR Part 241 (Solid Wastes Used as Fuels or Ingredients in Combustion Units). For sources like boilers firing non-traditional fuels that could potentially be considered solid waste, the determination carries a lot of weight, as CAA Section 129 is generally more stringent than CAA Section 112. For sources that clearly combust solid waste and are regulated by CAA Section 129, there are regulations under Part 60 that apply to specific types of solid waste combustors and incinerators: Sewage Sludge Incinerators (SSI), Hospital/Medical/Infectious Waste Incinerators (HMIWI), CISWI, Other Solid Waste Incinerators (OSWI), and Municipal Waste Combustors (MWC).

Municipal Waste Combustors

MWC may also be the most recognizable example of WTE. The concept behind WTE for MWCs is simple – combusting waste not only reduces the volume of waste that may otherwise go to a landfill, but also generates heat that can be recovered and utilized to generate steam and electricity. In theory this sounds like a win-win; however, MWC WTE facilities are also often subject to scrutiny due to the air emissions generated by the combustion of municipal solid waste (MSW).

MWC are regulated by various subparts under Part 60 depending on their size and when they commenced construction, reconstruction, or modification. 40 CFR Part 60, Subparts Cb, Ea, and Eb regulate large MWC, which have a combustion capacity greater than 250 tons per day (tpd) of MSW, and 40 CFR Part 60, Subparts AAAA and BBBB regulate small MWC, which have a combustion capacity less than or equal to 250 tpd of MSW. As described earlier, Section 129 standards are generally considered to be very stringent; however, the last amendment to any of the MWC rules was in May 2006, to Subparts Cb and Eb (which were then reconsidered in 2007 and remanded in 2008), even though U.S. EPA is required by CAA Section 129 to review and update these rules on a 5-year cycle.

The 2008 remand is the basis for recent legal action intended to make U.S. EPA act on the 2008 remand by updating the rules, and specifically lowering the emissions limits. The petition also stems from attention on WTE facilities because they tend to be near communities with Environmental Justice (EJ) concerns, and therefore aligns with U.S. EPA’s current EJ priorities.

Pyrolysis & Gasification

Many of the Section 129 solid waste combustion regulations include references to pyrolysis and gasification. However, each rule addresses those terms slightly differently. Most rules do not consider pyrolysis and gasification, which take place in no- or low-oxygen environments, to be combustion, and therefore they are not generally regulated by those Section 129 standards. On the other hand, the OSWI rule includes pyrolysis in the definition of MWC, and therefore does regulate those operations. However, U.S. EPA proposed amendments to the OSWI rule in 2020 to remove pyrolysis from the MWC definition, which would reverse the rule’s previous applicability. The amendments have not been finalized. To add to the inconsistency, some state agencies do not regulate pyrolysis and gasification operations as incinerators, but some do.

Meanwhile, pyrolysis and gasification technologies have become more and more prevalent over the last several years. Indeed, due to their increasing prevalence, particularly to “convert waste into useful products or energy,” and the inconsistent interpretations of whether they are combustion units, U.S. EPA published an Advance Notice of Proposed Rulemaking (ANPR) in September 2021 to gather information on pyrolysis and gasification activities to determine whether and how they should be regulated. The ANPR was prompted in part by the comments received on the 2020 proposed amendments to the OSWI rule. In the ANPR, U.S. EPA states that pyrolysis and gasification are being used to “convert solid or semi-solid feedstocks, including solid waste (e.g., municipal solid waste, commercial and industrial waste, hospital/medical/infectious waste, sewage sludge, other solid waste), biomass, plastics, tires, and organic contaminants in soils and oily sludges to useful products such as energy, fuels and chemical commodities.”

Stay tuned for another article with more details about the ANPR, but suffice it to say that it received significant attention, with 170 public comments submitted in late 2021. Unsurprisingly, those industries currently conducting pyrolysis or gasification operations do not want to become subject to standards under CAA Section 129, whereas environmental groups are supporting that possibility, arguing that even in low-oxygen conditions, there is still combustion taking place and pollutants being emitted that should be regulated. While not the focus of this article, this topic is top of mind not only for WTE operations, but also product recycling and recovery operations. One of the arguments for regulating pyrolysis and gasification units, however, is similar for both recycling and energy recovery – that additional processing is needed in order for them to be effective, such as further refining plastic-based end products or mixing fuel-based end products with supplemental fuel.

Looking Ahead

WTE is seen by some as a positive alternative to landfilling or other waste treatment techniques, and by others as waste combustion that should be further regulated. Between updating regulations for MWCs and regulating pyrolysis and gasification technologies as solid waste combustion, the WTE industry has a lot to keep up with in 2022 and beyond. Please contact Lindsey Kroos or your ALL4 project manager with questions about WTE or CAA Section 129 regulations.

Looking Ahead to New Requirements for Air Quality Cumulative Impacts Assessments in Permitting // Dan Dix

If you haven’t completed, gotten a request, or heard of a cumulative impacts assessment (CIA) I would expect you to in 2022.  I’ve personally seen an increase in environmental groups requesting that cumulative impacts be considered before issuing an air permit as part of the public participation process that most air permitting programs have. In addition, some states are including a requirement for cumulative impacts to be evaluated for environmental permitting projects in or adjacent to environmental justice (EJ) communities.  On the federal level, in response to President Biden’s executive order on addressing climate change and EJ, U.S. EPA is revising 2003 guidance on cumulative risk assessments that we are expecting to be released any day now.  Looking ahead to 2022 I would expect more environmental agencies to update and add requirements to conduct CIA that are more similar to the multi-pathway air quality risk assessments discussed below.

So, what exactly is a CIA?  U.S. EPA defines a cumulative risk assessment as “an analysis, characterization, and possible quantification of the combined risks to health or the environment from multiple agents or stressors.”  A CIA and a cumulative risk assessment are mostly synonymous with the main difference being that a risk assessment quantifies the increased risk from cumulative impacts whereas a CIA is a broader definition where cumulative impacts can be compared to multiple criteria including but not limited to an ambient concentration threshold.  Many different types of CIA that vary in size and scope currently exist as part of federal and state air quality requirements.  New Jersey’s EJ For All Act defines cumulative impacts as “the disproportionate exposure of a community to public health or environmental hazards from one or multiple facilities including power plants, recycling facilities, sewage plants, incinerators, landfills, and others.”  California’s CalEnviroScreen tool evaluates cumulative impacts in terms of pollution burden.

The most common type of CIA that many major sources may be familiar with is a National Ambient Air Quality Standards (NAAQS) air quality modeling demonstration that is required when the Prevention of Significant Deterioration (PSD) permitting program is triggered.  In a NAAQS air quality modeling demonstration, after it has been determined that a project will result in a significant impact, the applicant is required to evaluate a proposed project or modification’s air pollutant impacts combined with existing facility-wide air pollutant impacts, other nearby facilities’ air pollutant impacts, and air pollutant background concentrations as measured by ambient monitors.  A NAAQS air quality modeling demonstration is cumulative in that it evaluates air pollutant impacts from multiple sources in a modeling domain.  It is not cumulative in that each NAAQS pollutant is evaluated independently and that only inhalation is evaluated.

Some state air toxics programs include air quality inhalation risk assessment requirements to evaluate the cumulative health impacts that multiple pollutants can have on the environment and human health.  In a cumulative inhalation risk assessment model-predicted ambient concentrations are compared to each individual pollutant’s inhalation unit risk factor (URF) for carcinogenic pollutants and reference concentrations (RfC) for noncarcinogenic pollutants.  Each individual pollutant’s URF or RfC are then added and compared to a combined risk threshold (typically expressed as the increased chance in a million) for carcinogenic impacts evaluation, and a hazard quotient (HQ) for noncarcinogenic impacts evaluation.  An HQ is defined as the ratio of potential exposure to a pollutant to the level at which no adverse effects are expected.  Depending on the type of inhalation risk assessment being performed or required, an acceptable level of risk or HQ is established as a threshold by the environmental agency.  An inhalation risk assessment is cumulative in that it evaluates the impacts of multiple pollutants on environment and human health.  However, again, only one pathway (inhalation) is evaluated in this type of assessment.

Some state air toxic programs (most notably California air jurisdictions) require multiple pathways (multi-pathway) to be included in an air quality risk assessment.  A multi-pathway air quality risk assessment evaluates additional pathways beyond inhalation.  In a multi-pathway air quality risk assessment, the modeling includes both a prediction of ambient air concentrations as well as soil and water deposition.  The deposition impacts are used to evaluate the potential for soil ingestion and dermal exposure.  The soil and water deposition results can also be used to quantify uptake of pollutants through eating vegetables from a home garden or farm animals and eating fish caught in waterways included in the evaluation area.  In a multi-pathway air quality risk assessment, multiple pollutants, multiple pathways, and multiple sources are considered.

Another input to keep in mind when considering what impact your facility may have on the local community is exposure type and duration.  As part of a risk assessment, different exposure types and durations can be accounted for in the analysis.  To determine duration, local zoning maps are often reviewed to identify residential, commercial, and industrial areas in the modeling domain.  For residential areas, risk assessments account for the potential for as much as 70 years of exposure, versus industrial areas which assume a work exposure duration of a typical 40-hour work week for 25 years.  Typically, sensitive populations present at schools, hospitals, and nursing homes are also identified in a modeling domain for this type of assessment.  Risk thresholds are typically lower to ensure the protection of these sensitive populations.

As you can see by the examples provided above these are many different types of CIA that vary in size and scope.  We mentioned in our Environmental Justice Look Ahead that we expect additional policy and regulatory activity this year, which could include the requirement to address cumulative impacts of your facility as part of your next permit renewal or construction permit application if you are in or near an EJ community.  Our Air Toxics Look Ahead also mentioned that U.S. EPA is being pressured to incorporate cumulative risk assessments into its regulatory activities and that environmental groups are pressuring state agencies to investigate cumulative impacts in areas where there are multiple facilities with air emissions near a community.  If you have any questions about CIA or interested in conducting one for your facility, please contact Dan Dix at ddix@all4inc.com or at 610.422.1118.

Why You Should Consider Implementing a Digital Solution in 2022 // Julie Taccino

As you are starting this year, you may be planning for changes that will make your organization’s EHS processes run more smoothly.  A digital solution is something to consider for your organization as it can increase transparency and visibility as well as reduce administrative tasks. A new or expanded tool can increase data quality and allow more flexible data analysis and reporting.

Mobile Applications

Does your organization have business processes that involve completing a checklist or inspection form on paper and then transferring that data into an electronic system such as a spreadsheet or database? A digital tool with a mobile application can allow users to complete an inspection or safety observation via a portable electronic device such as a tablet or phone. Other users may use a digital tool to capture events such as safety incidents, environmental events, or other information in the field.

Data capture via a mobile application reduces the administrative burden of recording the data into a paper document or isolated spreadsheet which then must be transferred to a final electronic storage location. It can also be easy to include a photo taken by the electronic device as part of the checklist or observation.

Environmental, Social and Governance (ESG) Reporting

ESG reporting involves data and metrics related to environmental, social and governance key performance indicators (KPIs). Various data sources are needed in order to produce these KPIs. The more manual manipulation needed to produce an ESG report, the more potential for a manual input error and less time is put into understanding the data.

Reports that must be produced every year require time and resources to complete and review for quality. If the process can be supported by a robust tool, time can be focused on data analysis and quality review rather than basic data manipulation. Automating this process as much as possible can improve data quality and transparency as well as reducing the time and resources needed to produce these recurring reports.

For those organizations that currently have a digital tool it can be possible to leverage that existing tool and add on the KPIs associated with ESG reporting. For example, if there is an existing system that calculates air emissions and site greenhouse gas (GHG) emissions, Scope 2 and Scope 3 GHG emissions could be added to support ESG reporting.  See our recent ESG blog to learn more about the topic and what we see for 2022.

Analyzing and Reporting Digital Data

What use is collecting data if you don’t use it to improve your processes? Potential data-driven process improvements include:

• Can track against KPIs/limits in real time
• Can identify sources of incidents and address root causes
• Can track data to feed into other reports/data models
• Can easily change rollups or scope of data
• Can help allocate resources based on data (people or training or equipment)

Storing information in a common digital tool can allow for more flexible data analysis and reporting which can support data-driven improvements. It can be:

• easier to see trends or compare individual sites or groups of assets;
• easier to compare across different business lines or business units within a company;
• included in dashboards for easy reference or to highlight items of interest;
• sent to data visualization tools such as PowerBI or Tableau; or
• more efficient to conduct remote audits of that data by third party auditors, internal auditors or interested agencies.

Summary

A digital tool is something to consider for your organization because it can allow focus on data analysis over data entry, increase data quality, and allow more flexible data analysis and reporting. Organizations that have an existing digital tool can experience additional benefits by expanding or enhancing their systems.

This blog has provided a brief discussion of the potential benefits of digital solution tool implementation.  ALL4’s Digital Solutions Practice has extensive experience helping clients to scope, select, implement, maintain, and upgrade various types of digital tools. If you would like to discuss a digital solution for your company, please contact Julie Taccino at jtaccino@all4inc.com or 281-201-1247.

Preparing for PFAS in 2022 // Kayla Turney

State agencies and the U.S. Environmental Protection Agency (U.S. EPA) are continuing to move forward with per- and polyfluoroalkyl substances (PFAS) regulations across all media, and that’s a trend that we aren’t expecting to slow down in 2022.  In fact, as detailed in U.S. EPA’s “PFAS Strategic Roadmap” document, there are several key federal actions that we expect U.S. EPA to make this year.  It’s also expected that state agencies will follow suit when met with increased federal action.

So, what items should be on your preparatory short list for PFAS this year?

1. Toxics Release Inventory (TRI): Prepare for Removal of the “De Minimis” Exemption

U.S. EPA is expected to propose rulemaking in Spring 2022 that would classify the TRI-listed PFAS as “chemicals of special concern,” which means that the TRI de minimis exemption would no longer apply.  If promulgated, facilities that use (i.e., “manufacture,” “process,” or “otherwise use” as defined under TRI) materials containing TRI-listed PFAS will no longer be able to rely upon supplier certifications exempting them from TRI reporting requirements based on “de minimis” levels.  For example, let’s say you have aqueous film forming foam (AFFF) on-site and the safety data sheet (SDS) says something arbitrary like “Proprietary Perfluoro Chemicals.”  Let’s also say that there was an emergency last year that required the use of the AFFF, so you reach out to the AFFF supplier to determine if the “proprietary perfluoro chemicals” is one of the TRI-listed PFAS.  Currently, their response could be that there are simply no PFAS greater than de minimis levels, without actually giving you the specifics, and that would be enough to close out the item for TRI reporting.  But if the de minimis exemption is removed, it will be critical for facilities to know exactly what PFAS, and in exactly what quantities, are in all of their materials on-site.

How can you prepare?  Review your list of materials on-site and flag any that contain, or may potentially contain, PFAS.  If you relied on any supplier notifications historically claiming de minimis levels, it’s recommended that you flag those materials to note that you will need to get an updated SDS or chemical listing from your suppliers if the rule is changed.  It is also expected that U.S. EPA will continue to add more PFAS to the list subject to TRI reporting, so having a short list on-hand of any flagged materials will help as these rules continue to evolve.  For reference, there are currently thousands of identified PFAS, but there are only 175 on the TRI list.

Note that this rulemaking is not expected to impact the reporting year 2021 TRI report (due July 1, 2022) but may impact future year reporting so you should begin gathering information in 2022.

2. Drinking Water: Prepare for Additional Enforceable Standards and Health Advisory Levels

There are several Federal drinking water actions anticipated in 2022 that may also lead to more state agency actions.  For example, U.S. EPA is proposing to publish an enforceable drinking water standard for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) under the Safe Drinking Water Act (SDWA).  The proposed rule is expected to be issued in Fall 2022, with a final regulation expected in Fall 2023.  Additionally, U.S. EPA is planning to finalize toxicity assessments and issue new water quality health advisory levels for several PFAS [e.g., perfluorobutane sulfonic acid (PFBS) and hexafluoropropylene oxide dimer acid and its ammonium salt (Gen X Chemicals)] in Spring 2022.  Although health advisory levels are not enforceable limits, we’ve seen in the case of PFOA and PFOS that Federally-issued health advisory levels give state agencies necessary data and information to set state-enforceable limits.

How can you prepare? Consider identifying whether your facility may be a potential source of the regulated PFAS through internal document reviews.  If you have an upcoming National Pollutant Discharge Elimination System (NPDES) permit renewal, meet with your state agency to determine if PFAS monitoring will be required as part of the new permit.  U.S. EPA is also expected to issue new guidance to state permitting authorities in 2022 to recommend addressing PFAS in NPDES permits.  Although there may not be quantitative effluent limits built into permits, there may still be new monitoring requirements.

3. Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and Resource Conservation and Recovery Act (RCRA): Prepare for “Hazardous Substance” and “Hazardous Waste” Designations

U.S. EPA is proposing rulemaking to designate PFOA and PFOS as “hazardous substances” under CERCLA.  The proposed rule is expected in Spring 2022, with a final rule expected in Summer 2023.  This designation would require facilities with PFOA- and/or PFOS-containing materials on-site to report certain releases of these materials to the environment.  Additionally, U.S. EPA Administrator Michael Regan issued a response to a petition by Governor Michelle Luan Grisham of New Mexico calling for PFAS regulation under RCRA.  In Administrator Regan’s response, he outlined U.S. EPA’s plans to initiate rulemaking to designate PFOA, PFOS, PFBS, and Gen X Chemicals as RCRA Hazardous Constituents under Appendix VIII, which is the building block for eventual designation of certain materials containing these compounds as “hazardous waste.”

How can you prepare?  Similar to other preparation steps, the most prudent thing you can do is review your list of materials on-site and flag any that contain, or may potentially contain, these PFAS.  Develop a qualitative approach to meet any quantification, reporting, or recordkeeping requirements under CERCLA and RCRA.  Be able to answer the question of hypothetically, if these PFAS were designated as hazardous substances and/or hazardous wastes, how would your facility meet the regulatory obligations if there was a release of PFAS off-site, or if certain waste or sludge could be designated as hazardous waste in the future.

The list above is certainly not exhaustive but details some of the potential items that could impact a large swath of industries.  PFAS regulations are continually evolving, including numerous state-based actions, and we’ll be paying close attention to the changes 2022 brings.  While this article is limited to expected actions in 2022, there are many more on the horizon for 2023 as well.  If you have any questions or would like further information, please reach out to me at kturney@all4inc.com.