The 4 Rules: Summaries, Impacts, and Recommended Action
Posted: January 18th, 2012Authors: Roy R. Eric S. John E.
ALL4 presented a series of four (4) webinars over the past month that provided basic overviews of each of the following rules that were proposed simultaneously by U.S. EPA on June 4, 2010:
- Identification of Non-Hazardous Secondary Materials That Are Solid Waste (Definition of Solid Waste or DSW Rule)
- National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters (Major Source Boiler Rule)
- National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers (Area 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)
The following 4 The Record article is provided as a supplement to the webinar series and includes brief summaries of the proposed rules as well as anticipated impacts and recommended actions for potentially affected facilities. CD copies of the complete webinar series are available and can be purchased online at www.all4inc.com. From the Resources menu, select Training and click the “Boiler MACT/CISWI Training Webinar Series” link to order a CD.
Proposed Definition of Solid Waste Rule
On June 4, 2010, U.S. EPA published the Resource Conservation and Recovery Act (RCRA) proposed rule to define non-hazardous secondary materials that are solid waste when burned in combustion units (hereafter referred to as the proposed Definition of Solid Waste rule or DSW rule) in the Federal Register. The purpose of the proposed rule is to clarify which non-hazardous secondary materials are, or are not, RCRA Subtitle D solid wastes when burned as fuel or ingredients in combustion units. In the future, any non-hazardous material considered to be a solid waste can only be burned in units that comply with the proposed Commercial and Industrial Solid Waste (CISWI) rule. Conversely, combustion units regulated by the proposed Boiler MACT rule can only burn non-hazardous secondary materials that are not RCRA Subtitle D solid wastes.
As proposed in the DSW rule, non-hazardous secondary materials used as fuels or ingredients in combustion units would be considered solid waste, unless:
- The material remains under the control of the generator and meets the legitimacy criteria,
- Discarded material is sufficiently processed into fuel or ingredients that meet the legitimacy criteria, or
- Materials used as fuel that are transferred to a third party are considered solid waste unless a non-waste determination has been granted by U.S. EPA pursuant to a case-by-case petition process that is included in the proposed DSW rule.
In each of these non-waste determination options you must demonstrate that the fuel or ingredient meets certain legitimacy criteria defined in the proposed rule. To be considered a legitimate fuel the secondary material must:
- Be managed as a valuable commodity,
- Have meaningful heat value, and
- Contain contaminant levels comparable to or lower than traditional fuels which the combustion unit is designed to burn.
To be considered a legitimate ingredient the secondary material must:
- Be managed as a valuable commodity,
- Provide a useful contribution to the process,
- Be used to produce a valuable product or intermediate, and
- Result in products that contain contaminant levels comparable to or lower than traditional products.
Anticipated DSW Rule Impacts
U.S. EPA recognizes, and there is no doubt, that the proposed DSW rule will significantly narrow the current universe of non-hazardous fuels allowed to be burned in combustion units. This is because many materials currently being burned as alternate fuels and used as alternate ingredients will not meet the non-waste determination requirements of the proposed DSW rule. As a result, they will be reclassified as solid waste, and in accordance with Section 129 of the Clean Air Act (CAA), must be burned in a unit that is regulated under the CISWI rule.
As proposed, there is likely to be a dramatic decrease in alternate fuel use by facilities opting to switch to traditional fuels to avoid the requirements of the CISWI rule. Additionally, there will likely be an increase in newly regulated CISWI units, including many smaller previously unregulated combustion units, based on a reclassification of their current fuel to solid waste status. The reclassification of secondary materials as solid waste will also impact the marketability of certain alternate fuels commonly used today. For example, railroad ties, telephone poles, resinated wood products, and construction and demolition wood wastes that are sent to a processor to be shredded into fuel may not pass the non-waste determination of this rule and could be considered solid waste. Select combustion facilities may elect to discontinue the use of these fuels to avoid the requirements of the CISWI rule and thus lower the demand for these secondary fuel materials. Secondary material fuel processors and marketers will need to closely manage their process and products produced to properly classify their secondary materials as non-RCRA Subtitle D solid waste and limit the distribution to properly regulated units.
Other likely impacts of the proposed DSW rule include an increase in materials sent for disposal in landfills instead of being beneficially used as fuel or ingredients, and in some circumstances, an overall net increase in air emissions from combustors as a result of the discontinued use of select alternate fuels and ingredients. For example: the cessation of burning tires and replacing them with coal in a rotary kiln to avoid the proposed CISWI requirements would likely yield a net increase of greenhouse gas (GHG) and nitrogen oxide (NOX) emissions. The typically avoided GHG emissions associated with burning scrap tires in place of coal is 0.019 metric tons of CO2 equivalent (CO2e) per MMBtu and mid kiln firing of tires is a proven process operating method to reduce NOX emissions in rotary kilns.
Based on ALL4’s review of the proposed DSW rule, we recommend the following prioritized actions that potentially affected facilities should consider:
1. Carefully review the preamble to the proposed DSW rule. Most of the definitions and explanations associated with the rule are contained in the preamble. The preamble to the rule provides the rationale behind the non-waste determination process, provides numerous examples, and specifically solicits public comment in multiple areas.
2. If you are a secondary fuel combustor, processor, or distributor, ALL4 strongly encourages you to participate in the rulemaking process by providing comments to U.S. EPA. This preserves your right to challenge the final rule and, more importantly, may alter the outcome of the final rule. Be specific with your comments and provide as much technical and economic detail as possible. The deadline for submitting public comment has been extended to August 3, 2010.
3. If you currently burn or are planning to burn secondary fuel(s) or ingredient(s) you will want to perform a non-waste determination to define the likely waste vs. non-waste status of your selected fuel according to the process proposed in the rule. U.S. EPA has published flowcharts to assist you through this determination process that can be found here. Once you know which fuels are traditional, non-waste, and solid wastes you will be in a position to determine if you need to consider compliance with the Boiler MACT rule or the CISWI rule and be in a better position to do your long range fuel planning.
4. In light of the newly proposed CAA Section 112 Boiler MACT and Section 129 CISWI standards, facilities will need to evaluate each fuel type currently used, or planned, and consider the facility impacts associated with each non-hazardous fuel or ingredient. Strategic planning needs to be initiated early to allow sufficient time for potential permit modifications, pollution control modifications, fuel switches, monitoring device installations, etc.
5. Finally, if you plan to use fuel from off-site that has not been discarded, ALL4 recommends that you be prepared to submit the requisite non-waste petition determination request to U.S. EPA as soon as practical once the final rule takes effect so that you will have adequate time to plan your permitting strategy and ultimate fuel mix.
Proposed Major and Area Source Boiler MACT Rules
On June 4, 2010, U.S. EPA proposed the major and area source Boiler MACT rules. Both proposed MACT rules regulate hazardous air pollutants (HAPs) from boilers and process heaters that combust traditional fuels. The proposed major source Boiler MACT establishes emission standards for boilers and process heaters located at a major source of HAPs for the following pollutants: mercury (Hg), non-Hg metallic HAP, non-metallic inorganic HAP, non-dioxin organic HAP, and dioxins/furans (D/F). The proposed area source Boiler MACT establishes emission standards for boilers and process heaters located at a non-major source of HAPs for the following pollutants: Hg, non-Hg metallic HAP, and organic HAP (including D/F). The emission standards are based on fuel type and boiler/process heater design and may require aggressive compliance strategies including control. The type of fuel combusted by a unit will directly impact the applicability of the Boiler MACT rules. If traditional fuels, such as fossil fuels, fossil fuel derivatives, and clean cellulosic biomass are combusted then the Boiler MACT would apply. All other non-traditional fuels are considered solid waste (potentially subject to CISWI) and must be evaluated under the provisions of the proposed DSW rule.
The proposed major and area source Boiler MACT rules provide several compliance options including fuel sampling and/or emission testing. The major source Boiler MACT rule offers an emission average compliance option for similar existing subcategory boilers\process heaters. Emission averaging allows a facility to take advantage of over-control of an existing subcategory boiler\process heater. Demonstrating ongoing compliance with the proposed major and area source Boiler MACT rules will require a monitoring program. The monitoring program can include parametric or emission monitoring including requirements for CO/O2 and particulate matter (PM) continuous emissions monitoring systems CEMS. Similar to the vacated Boiler MACT rule, the proposed major and area source Boiler MACT rules require the development and submittal of plans such as an emission averaging plan, site-specific test plan, site-specific monitoring plan, fuel sampling/analysis plan, and potentially a startup, shutdown, and malfunction (SSM) plan.
A new regulatory requirement to the major source Boiler MACT rule is the requirement to complete an energy assessment. Both of the Boiler MACT rules will require facilities to develop and submit energy assessments that identify “cost effective energy conservation measures” which are defined as energy saving changes that have a payback period of two (2) years or less. Interestingly, neither rule contains language that actually requires facilities to implement any of the changes identified by the energy assessment. In addition, it is not clear what equipment must actually be assessed – in some places the rules refer to conducting the assessment on the boiler steam system, and in other places there are references to conducting the assessment on the entire facility. There is one difference between the two proposed rules: major sources must also develop an energy management program using the ENERGY STAR Guidelines for Energy Management.
Anticipated Boiler MACT Rule Impacts
The vacated major source Boiler MACT rule primarily required facilities to determine how to demonstrate compliance without significant capital expenditure. The proposed major and area source Boiler MACT rules will most likely require capital expenditures including additional monitoring systems and/or emission control devices. Complicating matters is the proposed DSW rule which will likely force facilities to re-evaluate their use of alternative fuels. Non-traditional fuels that have been successfully (and beneficially) used in the past may now be considered RCRA Subtitle D solid wastes and their continued use could classify the source as an incinerator subject to the proposed, more stringent CISWI emission regulations.
Based on ALL4’s review of the proposed Boiler MACT rules, we recommend the following prioritized actions that potentially affected facilities should consider:
Prepare and submit comments on the proposed major and area source Boiler MACT rules. On a parallel path, begin evaluating your Boiler MACT compliance strategy for your facility while comments are still being accepted by U.S. EPA. This will allow you to seek clarification on specific provisions that impact your operation through the comment.
2. Carefully evaluate any emission test and fuel sampling data that you may already have. Evaluating that data now will give you an idea of what compliance strategy you may want to utilize. This review will also lead to the engineering analyses of control devices for all or some of the affected units.
3. There are new monitoring requirements, specifically particulate matter (PM) continuous emissions monitoring systems (CEMS) that you may not be familiar with. Now is the time to start educating yourself regarding available systems and options. With the amount of capital that will be spent on PM CEMS if the PM provisions remain, you can bet that PM CEMS vendors will be contacting you soon. Listen to what they have to say and get involved at a technical level.
4. Carefully review and develop an understanding of the Energy Assessment requirements of the rules. Facilities may have already implemented improvements that offer a viable return on investment. Now is the time to comment, justify its applicability or non-applicability or to clarify the scope of the energy assessment (from facility to affected unit) to reduce the cost burden.
Proposed Commercial and Industrial Solid Waste Incinerator (CISWI) Rule
On June 4, 2010, U.S. EPA proposed revisions to the CISWI rule. There are several key changes in the proposed rule that will cause units that were not subject to the previous rule to become subject to the proposed CISWI rule. Previously, CISWI units that recovered thermal energy for useful purposes were not regulated as CISWI units. Under the proposed CISWI rule, units designed for energy recovery would be subject to the CISWI rule if the unit burns RCRA Subtitle D solid waste (as determined by the proposed DSW rule). The original CISWI rule, promulgated in 2000, regulated only incinerators. The proposed rule now regulates five (5) subcategories: incinerators, energy recovery units, waste-burning kilns, burn-off ovens, and small remote incinerators. U.S. EPA has established proposed emission limits for each of the CISWI subcategories.
Qualifying small power producers and qualifying cogeneration units are not CISWI units as they are expressly exempted from the definition of a solid waste incinerator in CAA Section 129. Small power producers are defined as units that produce < 80 MW at the site and use solely biomass, waste, renewable resources, geothermal resources, or any combination thereof. Wastes include anthracite refuse containing < 6,000 Btu per pound heat content, bituminous coal refuse containing < 9,500 Btu per pound heat content, used tires, plastic materials, and petroleum coke. Qualifying cogeneration units are facilities that produce electric energy and steam or heat which is used for industrial, commercial, heating, or cooling purposes. A qualifying cogeneration unit must meet minimum useful thermal energy output requirements based on the type of unit. Metals recovery facilities, such as primary or secondary smelters, which combust waste for the primary purpose of recovering metals are also excluded as they are Hazardous Waste Combustion units that are permitted under the Solid Waste Disposal Act.
The key linchpin for applicability to the proposed CISWI rule lies with the DSW rule. A unit burning a solid waste as an alternate fuel under the proposed DSW rule would be subject to the new CISWI rule unless through the case-by-case waste petition process (included in the proposed DSW rule) a facility can demonstrate that its alternate fuel is not a solid waste. If the unit is burning a solid waste as defined under the proposed DSW rule, it must comply with the new CISWI rules, or discontinue the use of the alternate fuels (which then may subject the unit to the new Boiler MACT standards).
Should a unit qualify as a CISWI unit and fall under Section 129 of the Clean Air Act, it will be required to comply with the CISWI rule regardless of the size of the unit. The more stringent requirements of Section 129 trump the standards developed under the Section 112 requirements. The unit would be required to comply with the CISWI numerical emission limitations for opacity and nine (9) pollutants including particulate matter (PM), sulfur dioxide (SO2), hydrogen chloride (HCl), nitrogen oxides (NOX), carbon monoxide (CO), lead (Pb), cadmium (Cd), mercury (Hg), and dioxins/furans (PCDD/PCDF). The facility would also be required to comply with other stringent CISWI standards such as operator training, additional Continuous Emission Monitoring Systems (CEMs), additional stack testing criteria and frequency, and bag leak detection systems.
Anticipated CISWI Rule Impacts
The proposed rule may have several significant impacts:
1. Some facilities may choose to discontinue the use of non-traditional fuels that qualify as solid wastes. This could result in an increased number of units subject to Boiler MACT.
2. Significant additional capital expenditures could be required for the additional CEMS, stack testing, training, and pollution control equipment that may be required to meet the more stringent limits.
3. The number of outlets available for burning alternate fuels may be reduced, and in some cases, eliminated. This may have economic impacts on the supply and demand for non-traditional fuels.
Based on ALL4’s review of the proposed CISWI rule, we recommend the following prioritized actions that potentially affected facilities should consider:
1. Take a long, hard look at your fuels.
a. Is it feasible to burn only traditional fuels?
b. Do your non-traditional fuels potentially qualify as solid wastes?
c. Could your fuels pass the DSW legitimacy criteria?
d. Is a case-by-case solid waste petition warranted for your non-traditional fuels?
2. Read and understand the proposed rule and the related DSW and Boiler MACT rules.
3. Review the emissions limits that would be required for your subcategory and compare those limits to existing limits.
4. Review your current pollution control and emissions monitoring equipment and understand what new equipment may be required. Determine the capital and operating costs associated with new control and monitoring equipment.
If you operate a unit that may be a CISWI unit under the proposed rule consider providing specific and detailed comments to U.S. EPA. This preserves your right to challenge the final rule and, more importantly, may alter the outcome of the final rule.
If you have any questions regarding the proposed rules or if you wish to discuss any specific applications of the proposed rules relative to your facility, please contact the appropriate ALL4 personnel identified below.