Multipollutant Rules: What’s In Store?

There is significant discussion in the regulatory and regulated community regarding the trend towards “multipollutant” rules. U.S. EPA’s current focus on “multipollutant” rules can be traced to a publication entitled “Air Quality Management in the United States,” prepared as a result of a study conducted by the National Academy of Sciences (NAS) that was published in 2005.  The United States Congress directed U.S. EPA to arrange for the NAS study to evaluate the effectiveness of the Clean Air Act (CAA) and its implementation and to develop recommendations to improve identification and incorporation of sources of human/ecosystem exposure and integration of human/ecosystem risk understanding.  The NAS study presented several sweeping recommendations intended to evolve the current air quality management practices in the United States to effectively address air quality on an ecosystem basis in the future.  A key component of their recommendations is an “…integrated, multipollutant approach to address the most significant exposures and risks.”

Remember the “Clear Skies” legislation from 2003?  It addressed emissions of sulfur dioxide (SO2), nitrogen oxides (NOX), and mercury from power plants by setting a nationwide cap on such emissions.  It was both sector-based and multipollutant.  The Clear Skies legislation never made it to rulemaking and ended in 2005.  While the Clean Air Mercury Rule (CAMR) was not a multipollutant rule, it was a sector-based rule aimed at power plants that included cap and trade provisions for mercury emissions.  CAMR was vacated by the D.C. Circuit court in 2008.  Mercury and other hazardous air pollutants (HAPs) will now be addressed by a “Utility MACT” rule under Section 112 of the CAA.

How about the Clean Air Interstate Rule, or “CAIR” as it is more commonly known?  CAIR, a multipollutant rule that addressed SO2 and NOX emissions mostly from power plants located in 28 “eastern” states, was finalized in 2005.  It was a “cap and trade” based program that “budgeted” emission allocations to participating states.  The U.S. Court of Appeals for the D.C. Circuit vacated and remanded the CAIR rule in July 2008.  In December 2008, the court granted rehearing and remanded the rules without vacating them.   U.S. EPA has been working on a CAIR replacement multipollutant rule ever since.

This brings us to the Transport Rule, another multipollutant rule that is currently under development by U.S. EPA that targets power plant SO2 and NOX emissions in 30 states and the District of Columbia.  A final Transport Rule (addressing the shortcomings of CAIR) is expected sometime in 2012.  Each of the above multipollutant regulatory actions targeted the power sector, addressed emissions of SO2 and NOX, and was based on emissions caps or applications.

Based on the fate of the above referenced legislative and regulatory actions, one would think that the multipollutant approach has, to date, not been one of U.S. EPA’s most successful regulatory strategies.  Think again – U.S. EPA has taken the multipollutant sector approach to another level by using a derivation of this approach on targeted sectors.  A prime example of U.S. EPA’s multipollutant sector-based approach is the cement industry.  In 2010, U.S. EPA promulgated a combined Standard of Performance for New Stationary Sources (NSPS) and National Emission Standard for Hazardous Air Pollutants (NESHAP) in a single regulatory package.  U.S. EPA’s sector-based multipollutant approach for the cement industry is described in some detail in the preamble to the proposed rule [FR Vol. 74, No. 86] and in the preamble to the final rule [FR Vol. 75, No. 174].  However, the approach has a different look and feel than the regulatory initiatives described above.

Unlike Clear Skies, CAIR, and the Transport Rule, the multipollutant approach used for the cement industry was neither a new nor a single rulemaking.  It also did not include any cap and trade provisions or any pollutant “allocations.”   The sector-based, multipollutant approach used for the cement industry essentially incorporated a simultaneous reconsideration of the cement NESHAP (40 CFR Part 63, Subpart LLL) and revisions to the cement NSPS (40 CFR Part 60, Subpart F).  Changes to each rule were proposed, published for comment, and finalized as a single regulatory action.  The preamble to the rule proposal included a detailed discussion that described U.S. EPA’s cement sector-based approach (i.e., inter-relatedness of NESHAP and NSPS requirements) and identified the impacts of the cement NESHAP and NSPS rule changes on New Source Review (NSR), the National Ambient Air Quality Standards (NAAQS), regional haze requirements, and anticipated health benefits.  Much of the discussion was predicated on a NESHAP-affected cement plant utilizing add-on alkaline wet scrubber technology to meet the restrictive mercury (Hg) and hydrogen chloride (HCl) limits of the NESHAP rule.  U.S. EPA identified a collateral benefit of the use of alkaline wet scrubbers as surplus reductions of direct sulfur dioxide (SO2) emissions and as reductions in fine particulate matter (PM2.5) precursor emissions for use in netting exercises and as emission offsets.  Those potential reductions in SO2 and PM2.5 emissions were also mentioned as possible emission reductions for states that are required to have attainment plans.  Reductions in SO2 and PM2.5 emissions from cement plants through the application of wet scrubbing technology (to meet NESHAP Hg and HCl limits) were identified as a means to satisfy Best Available Retrofit Technology (BART) requirements under regional haze programs.

The results of the cement sector multipollutant approach were not dramatic.  Both rules now have a provision stating that the most stringent particulate matter (PM) standard applies when differing standards apply to the same pollutant.  The PM emissions standards for new and reconstructed kilns and clinker coolers under NESHAP and new, reconstructed, or modified kilns and clinker coolers under NSPS are now identical under both rules (i.e., 0.01 lb/ton clinker).  In addition, the monitoring, recordkeeping, and reporting requirements of both rules have been streamlined to reduce dual rule compliance complexities.  The collateral benefits described in the rule preamble are based on the use of one (1) of several NESHAP compliance strategies (alkaline wet scrubber) and therefore may be overstated. In the end, the cement sector multipollutant approach was not really a multipollutant rulemaking because the changes encompassed two (2) separate regulations (i.e., 40 CFR Part 60 and 40 CFR Part 63), differing CAA statutory origins (i.e., Section 111 and Section 112), and differing pollutants (i.e., hazardous air pollutants and criteria pollutants).    While there may very well be benefits associated with such an approach to sector-based rulemaking, it is not consistent with the multipollutant approach used in Clear Skies, CAIR, and the Transport Rule and is not consistent with the broad multipollutant recommendations described in the NAS report, “Air Quality Management in the United States.”

We expect U.S. EPA to continue to use the multipollutant label in similar future sector specific rulemaking endeavors.  From a consistency perspective, a simultaneous review of multiple regulatory packages (with similar requirements) is welcomed to ease any confusion regarding differing compliance responsibilities.  However, all such proposals should be thoroughly reviewed and scrutinized to ensure that no overly burdensome “synergistic” effects result from future sector-based multipollutant rulemakings.

Please contact ALL4’s Roy Rakiewicz at 610.933.5246 x27 (rrakiewicz@all4inc.com) should you have any questions regarding mulltipollutant rules.