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HWIMI Rule Revisions Get Attention from Many Industry Groups

Posted: January 19th, 2012

Authors: Lindsey K. 

You may think that your facility has little in common with Hospital, Medical, and Infectious Waste Incinerators (HMIWIs).   Consider this…is your facility subject to a Maximum Achievable Control Technology (MACT) standard?   If so, you may have more in common with the HMIWI industry than you think!

In December 2008, U.S. EPA proposed revisions to the New Source Performance Standards (NSPS) and Emission Guidelines (EGs) for HMIWI (73 FR 72962), originally promulgated in 1997.  These regulations, established under Section 129 of the Clean Air Act (CAA), serve as the MACT standards for this industry. The comment period for the proposed rules closed on February 17, 2009 and resulted in significant attention from industry, state agencies, environmental organizations, and particularly from other industry organizations and associations.   So why would a rule about hospital, medical, and infectious waste get the attention of the American Forest & Paper Association (AF&PA), the American Chemistry Council (ACC), the Alliance of Automobile Manufacturers (AAM), the Cement Kiln Recycling Coalition (CKRC), the Brick Industry Association (BIA), the Utility Air Regulatory Group (UARG), the Portland Cement Association (PCA), and the Council of Industrial Boiler Owners (CIBO), among others?

The HMIWI MACT rules proposed in December included both a five year review and a response to a court-ordered remand. There were a number of substantial objections to the proposed rules, which are viewed by the industry as being unachievable.  However, the common objection amongst the various comments was the underlying argument that U.S. EPA used a “MACT-on-MACT” methodology for establishing the proposed new emission limitations for both new and existing HMIWI.  So what is MACT-on-MACT?

In establishing the MACT standards for the original 1997 rule (which, by itself eliminated nearly 98% of the HMIWI industry), U.S. EPA was first required by Section 129(a) of the CAA to determine the MACT “floor.”  The floor is the “minimum stringency levels for new and existing [HMIWI], generally based on levels of emissions control achieved or required to be achieved” in practice. Once established, the MACT standard must be reviewed every five years based on circumstances within the previous five years to determine whether additional controls or limitations are necessary.  This review can consider costs and other factors, but does not require U.S. EPA to reset the floor; that is, establish a new floor based on any new data that has become available.  What’s more, if the new data is comprised of post-MACT emission rates (i.e., emission rates achieved after complying with the originally promulgated MACT standard by installing additional controls), resetting the floor in order to establish a new MACT standard would appear to constitute MACT-on-MACT.  While U.S EPA denied using a MACT-on-MACT approach in the preamble to the proposed rule, a close examination of the data and the methodologies that were used by U.S. EPA to address the five year review and, more so, the 1999 remand appear to contradict this position.

U.S. EPA also selectively established floors based on the best-performing units for each of the nine (9) regulated pollutants individually using what appears to be a MACT-on-MACT approach. By establishing new MACT floors for each pollutant, U.S. EPA essentially created limitations that only a theoretical unit with the best control for each pollutant could meet (i.e., a single HMIWI equipped with a wet scrubber for control of HCl and CO as well as a carbon adsorber for control of Pb, Cd, and NOX; a dry scrubber for control of PM, CDD/CDF, and SO2; and a fabric filter for control of Hg).  The concept of establishing a non-existent unit is based on what U.S. EPA believes might be achievable by using a combination of different control strategies rather than what has been “achieved in practice by the best controlled similar unit” for new units or “achieved by the best performing 12 percent of units” for existing units, as required by Section 129.

Why should I care?  If the revisions to the rule are approved as-proposed, the ability for U.S. EPA to use a MACT-on-MACT methodology for establishing new MACT floors on a pollutant-by-pollutant basis for HMIWI could set a precedent for establishing new MACT standards for other industries.  If your facility became subject to emission limits 10, 100, or 500 times more stringent than the standards it is subject to now it would likely get your attention!


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