Boilers, Solid Waste, and the CAA….Oh My!

U.S. EPA’s Core Four: DSW Rule, Major Source Boiler Rule, Area Source Boiler Rule, and CISWI Rule

While the regulated community is just coming to grips with the most recent changes to four of the National Ambient Air Quality Standards (NAAQS), U.S. EPA has unleashed the much anticipated Core Four:

• National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers (Area Source Boiler Rule)
• National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters (Major Source Boiler Rule)
• Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units (CISWI Rule)
• Identification of Non-Hazardous Secondary Materials That Are Solid Waste (Definition of Solid Waste or DSW Rule)

Nearly 200,000 sources are expected to be affected by the Core Four.  Did you know that based on the proposed rules, U.S. EPA estimates that industry will spend $4.1 billion in annualized costs to comply?  $2.9B will be absorbed by sources subject to the Major Source Boiler Rule, $1.0B by sources subject to the Area Source Boiler Rule, and $0.216B by sources subject to the CISWI Rule.  Capital costs will be significantly higher.  As a result of the number of affected sources, associated compliance costs, and interrelatedness of the rules, significant attention has rightfully been given to these proposed rules.   At ALL4, we’ve assembled a team to drill through the details of the rules, we have been educating the regulated community via a Boiler MACT/CISWI 4-part webinar series, and we are actively preparing comments on the rules.

If you’ve followed the rules, and perhaps attended our Boiler MACT/CISWI 4-part webinar series, you appreciate that the linchpin to these rules lies with the DSW Rule as it essentially determines which sources go the Boiler MACT (Clean Air Act (CAA) Section 112) route and which sources go the CISWI (CAA Section 129) route.  Seeing that quite a few sources are due to be introduced to CAA §129 regulations for the first time, it seemed like an appropriate time to provide an introduction to being regulated as a CAA §129 source and to provide an update on where all of the CAA §129 rules stand.

CAA §129 Background

CAA §129 “Solid Waste Combustion” requires U.S. EPA to develop and adopt standards for solid waste incineration pursuant to CAA §§111 and 129 for each category of solid waste incineration units.  The standards are to include emissions limitations and other requirements for “new” units and emission guidelines and other requirements applicable to “existing” units.  The five (5) categories detailed in §129(a)(1) are:

• Commercial/Industrial Solid Waste Incinerators (CISWI)
• Hospital Medical/Infectious Waste Incinerators (HMIWI)
• Municipal Waste Combustors – Large Units  (LMWC)
• Municipal Waste Combustors – Small Units  (SMWC)
• Other Solid Waste Incinerators (OSWI)

10 things you may not have known about being regulated as a CAA §129 source

Being regulated as a CAA §129 source is similar to being regulated as a CAA §112 source; however, there are quite a few differences.  Read on and learn 10 aspects of the CAA §129 rules that differ from CAA §112.

1. New units are regulated under Standards of Performance for New Stationary Sources (NSPS) whereas existing units are subject to Emission Guidelines (EG).  NSPS and EG each fall under 40 CFR Part 60.

2. Within the EG, U.S. EPA provides instruction to states (or other local jurisdictions) on how to develop a “State Plan” to regulate their existing sources.  State Plans must be submitted to U.S. EPA within one (1) year of promulgation of the EG.  The State Plan shall be at least as stringent as the EG and shall require each subject unit to be in compliance not later than three (3) years after the State Plan is approved by U.S. EPA but not later than five (5) years after the EG were promulgated.

3. U.S. EPA also develops a Federal Plan, which is codified at 40 CFR Part 62.  The Federal Plan applies to existing sources in states where an approved state plan does not exist or where a state requested (and received) delegation of the Federal Plan.

4. Numerical emission limitations are established for nine (9) pollutants: particulate matter (total and fine), opacity (as appropriate), sulfur dioxide, hydrogen chloride, oxides of nitrogen, carbon monoxide, lead, cadmium, mercury, and dioxins and dibenzofurans.

5. The emission limits are established in a floor setting exercise based on the top performing 12% for existing sources and the best performing similar unit for new sources.

6. Operator Training requirements, initial and continuing, are specifically defined.

7. Siting requirements are mandated for new units to minimize, on a site specific basis, to the maximum extent practicable, potential risks to public health or the environment.

8. Sources subject to §129(a) and §111 shall obtain and operate pursuant to a Title V Operating permit (regardless of prior operating permit status).

9. NSPS and EG are to be reviewed and revised at five (5) year intervals.

10. “New” source requirements can be triggered by a “modification” as defined in 40 CFR Part 60, Subpart A.

What’s the regulatory status for each of the source categories in CAA §129?

As we’ve all become accustomed to, the courts have been playing a major role in the regulatory status of many regulations.  We’ve all become familiar with legal terms such as vacated, remanded, stayed, etc.  CAA §129 is no exception.  The following subsections identify the applicable category and provide a brief history and regulatory status update, taking into account legal activity:

Commercial/Industrial Solid Waste Incinerators (CISWI)

• Promulgated originally in 2000, with one (1) source category.
• Petitioned for reconsideration based on two (2) key definitions and was voluntarily remanded.
• Remained in effect, was not vacated and was fully implemented in 2005.
• New definitions were promulgated as the “definitions rule” in 2005; however, in 2007 the definitions rule was vacated and remanded.
• U.S. EPA’s June 4, 2010 proposed rule addresses (1) 2000 NSPS/EG Remand, (2) 2007 Remand and Vacatur of Definitions Rule, and (3) 5-year review. Proposed rule is more expansive in applicability and now covers five (5) source categories versus the original one (1).
• Court ordered deadline for promulgation: December 2010

Hospital/Medical/Infectious Waste Incinerators (HMIWI)

• Promulgated NSPS and EG originally in 1997.
• Voluntary Remand of 1997 rule; however, HMIWI was fully implemented in 2000.
• Proposed HMIWI rule in 2007 to address remand and 5-year review.
• U.S. EPA re-proposed HMIWI rule in 2008, taking into account recent court actions, and reset the MACT floor.
• HMIWI rule was promulgated in 2009, satisfied remand and 5-year review.
• State Plans currently being developed and are due in October 2010. HMIWI rule is being litigated. Federal Plan will be developed by U.S. EPA in the near future, likely in 2011.

Municipal Waste Combustors – Large Units (LMWC)

• Promulgated originally in 1995.
• Proposed LMWC revisions in 2005, and in 2006 promulgated revised rule.
• Various aspects of the standards were due to be litigated and a petition to reopen CAA §129(a)(2) standards was received.
• LMWC remanded in 2008.  Never implemented.
• U.S. EPA is currently working on revised LMWC rule.  No court ordered deadline.

Municipal Waste Combustors – Small Units (SMWC)

• Last promulgated in 2000.
• SMWC standards remanded by DC Circuit Court, including assessment of the MACT floors.
• Likely won’t see any action on SMWC until LMWC is proposed and promulgated.

Other Solid Waste Incinerators (OSWI)

• NSPS and EG promulgated in December 2005.
• Federal Plan proposed, never finalized.
• Never vacated nor remanded.
• States developed State Plans and submitted to U.S. EPA.  State Plans were never approved
• Petition for reconsideration regarding sewage sludge incineration subcategory (SSI).  SSI to be regulated as a separate category and is under court ordered deadline of December 2010.
• Units that will be ultimately subject to OSWI will be affected by the finalization of the DSW rule as well as the CISWI rule.

What can I do?

Being regulated as a source subject to CAA §129 instead of §112 has some similarities but certainly quite a few unique and significant differences.  It is important to recognize and understand the differences so you aren’t caught by surprise should a source you’re responsible for become subject to a CAA §129 based regulation.   Knowing the differences in light of the recent Core Four proposed rules is important.  It will become very important for those units that are teetering between being subject to Boiler MACT or CISWI to strategically evaluate all of the pros and cons, from both an environmental and business perspective.  At stake is the ability of certain sources to continue beneficially using alternative fuels (e.g., tire derived fuel (TDF), plastic derived fuel (PDF), etc.) due to compliance concerns with an entirely new regulatory regime.

Keep a pulse on the legal action surrounding the CAA §129 rules.  The outcomes will affect those units subject to CAA §129 and can also set precedence for other CAA regulations including CAA §112 standards.

Make your voice heard.  There’s a public process to get your comments to U.S. EPA.  Attend a public meeting or provide written comments.  All legitimate comments must be considered and really can have an impact on the final rule.   ALL4 was successful in assisting the HMIWI industry get relief from the extremely stringent 2008 proposed standards.  Recall that in order to litigate a particular element of a rule, you need to comment on the element and get your comments as part of the formal docket.