Air Regulations & Industry November 14, 2013 Peter Tomasi - - PDF document

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Air Regulations & Industry

November 14, 2013 Peter Tomasi Quarles & Brady LLP

Federal and Tribal Rulemakings

• Industrial Boiler MACT (Major and Area Source)
• NHSM Rule
• Urban Air Toxics Rules
• NAAQS Update
• Tribal AQRVs
• OSHA-Silica

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Strange Days

• Ambient air quality standards

usually are the primary driver for air regulations

• HAP requirements, Class I

protection, and seldom-used existing source standards are now significant drivers

• OSHA silica rule—potential broad

application

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CAA Section 112--Air Toxics

• 1990 Clean Air Act Amendments listed 187 Hazardous

Air Pollutants (HAP), i.e., chemicals known or suspected to cause cancer or other serious health effects

• Maximum Achievable Control Technology (MACT)

Regulations Required for source categories (i.e., pharmaceutical manufacturers)

• EPA has completed over 90 MACT regulations covering
• ver 170 industry categories for major sources

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Major and Area Sources

• Major sources—HAP

emissions greater than 10 tons individual HAP, 25 tons total HAP

• Area sources—HAP

emissions less than 10 tons individual, 25 tons total

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Industrial, Commercial, and Institutional (ICI) Boiler MACT

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Industrial/Commercial/Institutional (ICI) Boilers

• In 2004: EPA promulgated Subpart DDDDD,

establishing MACT for ICI Boilers – 69 Fed. Reg. 55,218 (Sept. 13, 2004).

• Applied to: boilers, hot water heaters, process heaters,

if located at a major source of HAPs, with two exemptions:

– New or reconstructed small gas-fired Boilers (< 10 MMBtu/hr) – Existing small boilers (<10 MMBtu/hr) solid fuel, liquid, & gas- fired

• In 2007: U.S. Court of Appeals vacated and remanded

Subpart DDDDD. NRDC v. EPA, 489 F.3d 1250 (D.C.

• Cir. 2007).
• Chapter NR 462, Wis. Admin. Code adopted, no longer

in effect.

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Reasons Rule Vacated

• Did not impose emission limits for all HAPs emitted by

boilers.

• Rule allowed alternatives to standard emission limits

and compliance tests, such as risk assessments for HCl emissions.

• Finally, court concerned regarding whether C&D

waste, sludge, or manure a fuel subject to Section 112, or incineration of a solid waste, subject to CAA Section 129 (boilers versus CISWIs).

• Court remanded rules for industrial boilers and for

CISWIs to address Section 112/129 overlap.

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Revised Boiler MACT & CISWI Rules

• EPA issues four rulemakings to address 2007

remand:

– Standards for new and existing major ICI boilers (MACT) – 78 Fed. Reg. 7186 (Jan. 31, 2013) – Standards for new and existing minor ICI boilers (i.e., area sources) (MACT/GACT) – 78 Fed. Reg. 7812 (Feb. 1, 2013) – Non-hazardous "Secondary Materials" considered subject to Section 112 – 78 Fed. Reg. 9112 (Feb. 7, 2013) – NSPS Standards under Section 129 for CISWIs – 78 Fed. Reg. 9112 (Feb. 7, 2013)

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Final Major Source Boiler MACT Rule

• On January 31, 2013, EPA finalized rules for Major

Sources – 78 Fed. Reg. 7186 (Jan. 31, 2013).

– Established numeric emission limits for all other new/existing boilers and process heaters at major sources – Huge regulatory driver for industry

• Revised numeric emission limits for mercury, dioxin,

PM (surrogate for non-Hg metals), HCl (surrogate for acid gases), and CO (surrogate for non-dioxin organic air toxics).

• Required combination of monitoring to assure

compliance with limits, and energy assessment.

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Revised Boiler MACT (Major)

• Compliance date: 3 years from publication (Jan. 31,

2016)

• Particulate matter (PM) emission limits for biomass

fueled boilers set by subcategory

• New carbon monoxide limits to address variability (CO

CEMS-based limits for most subcategories, CO limits for several subcategories revised to reflect a threshold level (130 ppm@ 3%O2)

• Allows metals emission limits as an alternative to using

PM limit as a surrogate for metallic air toxics

• Dioxin limit replaced with work practice standards

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Major Source Boiler MACT

• August 2013: EPA announces reconsideration
• n following issues:

– Startup and shutdown definitions, and applicable work practice standards – Applicable carbon monoxide (CO) limits – Parametric monitoring requirements and implications

• f exceeding required parameter

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Area Source Boiler MACT

• On February 1, 2013, EPA finalized Boiler MACT rules for Area Sources

78 Fed. Reg. 7812 (Feb. 1, 2013).

– Established standards addressing Hg, PM (surrogate for non-mercury metals), and CO (surrogate for organic air toxics).

• Initial notification deadline for existing area source boilers: no later

than January 20, 2014.

• Existing area source boilers will have until March 21, 2014 to

comply with these standards.

• August 5, 2013 issues subject to reconsideration:

– Startup and shutdown – Limited use boiler subcategory – Elimination of certain PM performance testing

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Compliance Options

• Billion dollar compliance question

for industry: install advanced controls on solid fuel boilers, or convert to natural gas?

• Complicated where solid fuel

boilers major, but once on gas an area source

• Huge impacts to industry, no

consensus on “right path”

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Non-Hazardous Secondary Materials (NHSM) Rule

• 78 Fed. Reg. 9112 (Feb. 7, 2013)
• Issued under Subtitle D of Resource

Conservation & Recovery Act (RCRA)

• Determines whether sources are subject

to the industrial boiler MACT (CAA s. 112) or CISWI NSPS (CAA s. 129)

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RCRA Subpart D

• Solid Waste Under RCRA:

– Subpart C “cradle to grave” coverage for hazardous solid waste – Subpart D less restrictive requirements for non-hazardous solid wastes

• Subpart C detailed definition under Subpart C

(40 CFR s. 261.2) (proposed revisions at 76

• Fed. Reg. 44094 (July 22, 2011))
• NHSM rule EPA’s first detailed guidance

defining solid waste under Subpart D

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Need for NHSM

• For decades, industry has burned

secondary materials

– Biomass (shredded pallets) – Scrap tires – Waste plastics – Paper mill sludge

• Lower energy cost, lower tipping

fees

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Fuel vs. Waste

• If materials considered fuel, then s.

112 boiler MACT governs

• If materials are waste, then s. 129

standards apply

– CISWI standards more restrictive, difficult to comply with – Who wants to be an incinerator?

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Avoiding CISWI Status

• Materials determined to be treated as a fuel:
• Traditional fuels-40 CFR § 242.1

– Historically managed as fuel – Alternate fuels developed from virgin materials (coal waste, cellulosic biomass)

• Categorically determined non-waste

– Scrap tires (not discarded) – Resinated Wood – Coal refuse – Dewatered pulp and paper sludges (what if previously disposed of as waste)

• Prior practice?

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Other materials as fuel

• “Within control of the generator”

– Generated and combusted at facilities under common control

• Legitimacy criteria 40 CFR s.

241.3(d)(1)(i-iii)

– Valuable commodity (how stored, how long stored, how contained?) – Meaningful heating value (5,000 Btu/lb guideline) – Contaminates at comparable level to traditional fuels

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Implications for Industry

• If relying on second option, must

document how determined (40 CFR ss. 60.2175, 60.2740)

• Failure to do so may make unit a

CISWI (40 CFR ss. 60.2265, 60.2875)

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Urban Air Toxics

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Urban Air Toxics Strategy

• July 19, 1999 Urban Air Toxics Strategy

– EPA required to list 30 Hazardous Air Pollutants (HAPs) from area sources which pose the greatest potential public health threat in urban areas – EPA must regulate area sources categories accounting for 90 percent of the emissions of 30 listed HAPs – EPA developed rules for 68 area source categories (including Area Source Boiler Rule)

• Not limited to metropolitan areas

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Area Source Categories Include . . .

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Autobody Refinishing Institutional/Commercial Boilers Chromium Electroplating (decorative and hard) Miscellaneous Coatings Dry Cleaning Facilities

• Misc. Organic Chemical Manufacturing

(MON) Fabricated Metal Products (9 types) Pharmaceutical Production Foundries (Aluminum, Copper, Iron, Steel, Nonferrous) Plating & Polishing Gasoline Distribution Stage I Publicly Owned Treatment Works Industrial Boilers Stationary Internal Combustion Engines Industrial Chemical Manufacturing Wood Preserving

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Build it and they will come . . .

• EPA significantly increasingly

enforcement under area source NESHAPs

• Minor recordkeeping violations without

any emissions; exceedance still result in penalty

• Most resolved through CAFOs

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Area Source NESHAPs

• Impact to industry:

– Small and medium-size facilities at greatest risk of enforcement – Lean manufacturing-limited manpower to ensure recordkeeping always completed – No limit to size of source (one chrome or nickel tank triggers MACT applicability)

• Green Tier status irrelevant to EPA

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NAAQS Reviews

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NAAQS Review Timeline

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Pollutant

Final NAAQS Date (or Projection)

Infrastructure SIP Due Designations Effective Attainment Demonstration Due Attainment Date PM2.5 (2006) Oct 2006 Oct 2009 Dec 2009 Dec 2012 Dec 2014/2019 Pb Oct 2008 Oct 2011 Dec 2010/2011 June 2012/2013 Dec 2015/2016 NO2 (primary) Jan 2010 Jan 2013 Feb 2012 none none SO2 (primary) June 2010 June 2013 TBD TBD TBD Ozone (2008) Mar 2008 Mar 2011 July 2012 2015 2015/2032 PM

(current review)

Dec 2012 Dec 2015 Early 2015 2018 2020/2025 Ozone

(current review)

2014 2017 2016 2019 2019/2036

Credit: EPA September 2012.

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Final Revised PM2.5 Standards

• D.C. Circuit remanded 2006 PM2.5

standard to EPA in American Farm Bureau Federation v. EPA, 559 F. 3d

• 512. (D.C. Cir. 2009)
• EPA revised to address this remand in
• January. (78 Fed. Reg. 3086 (Jan. 15,

2013))

– Annual – 12 ug/m3 – 24-hour – 35 ug/m3

• Most areas attain new annual standard.

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PM2.5 Implementation

• PM2.5 implementation rules remanded in

NRDC v. EPA, No. 08-1250 (Jan. 4, 2013)

• PM2.5 SIL and SMC remanded Sierra Club
• v. EPA, No. 10-1413 (Jan. 22, 2013)
• We read § 165(e)(2) of the Act as an

“extraordinarily rigid” mandate that a PSD permit applicant undertake preconstruction monitoring.

• Do all PSD sources need to conduct 1

year of monitoring before applying for a permit?

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1 hour SO2

• New 1-hr SO2 NAAQS finalized on June 3,

2010, at 75 ppb on a 1-hour average.

• Compliance determined through a 3-year

average of the 99th percentile of daily maximum 1-hour average concentrations at each monitor.

• EPA initially proposed modeling to determine

compliance with standard: now preparing guidance to consider monitoring.

• Industry challenge rejected: still awaiting EPA

guidance.

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1 hour NO2

• In 2010, primary NO2 NAAQS revised to 100

ppb on a 1-hour average (was 53 ppb annual average).

• Primary focus on roadways: urban areas with

a population greater than 500,000 must install monitors.

• Entire country unclassifiable/attainment.

Industry challenges not successful. Pursuant to March 31, 2013 rule, monitors will be phased in between 2014 and 2017.

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Tribal Air Quality Related Values

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Tribal Class I Air Quality Regions

• Tribes and states can request

redesignation to Class I status, under CAA Section 164.

• In addition to compliance with the NAAQS

and visibility, Class I areas protected from impacts to "air quality-related values" (AQRVs).

• AQRVs are resources that the Class I area

manager wishes to protect and that may be impacted by air emissions.

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AQRVs

• AQRVs can include limits designed to protect visibility,

standards for acid deposition or airborne concentrations, protection of vegetation, or other standards determined by a land manager to be protective of an area.

• New Source Review Workshop Manual page E.12,

"When a proposed major source's or major modification's modeled emissions may affect a Class I area, the applicant analyzes the source's anticipated impact on visibility and provides the information needed to determine its effect on the area's other AQRVs."

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FCPC Class I Area

• Forest County Potawatomi Community (FCPC)

entered into agreements with WDNR in 1999 and 2010.

– In 1999, FCPC adopted Water Quality and Aquatic Systems as AQRVs. – In 2010, FCPC and WDNR agreed that FCPC could update the 1999 AQRVs. – In 2012, developed Threshold Exposure Levels (TELs) for the 1999 AQRVs, and two new AQRVs – Vegetation and Visibility.

• Bad River Community currently seeking its own

Class I authority.

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FCPC AQRV

• The new AQRVs and TELs became effective at the end
• f the review period, without need for DNR or EPA

approval.

• While the AQRV/TEL development documentation does

not describe the practical impacts of the standards, development documents suggest that current deposition levels may exceed TELs.

• Reach of review unclear under NR 405.19(1), Wis.
• Admin. Code.

OSHA--Revised Silica Standard

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OSHA Proposed Silica Rule

• Occupational Safety and Health

Administration (OSHA) establishes limits for worker exposure to airborne substances.

• OSHA has proposed a revised

Personal Exposure Limit (PEL) for silica for the first time since 1974.

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What is silica?

• SiO2 is the most abundant mineral on

earth.

• Regulated by U.S. EPA and DNR as a

component of PM10 and PM2.5.

• Most likely sources of occupational

exposure:

– Construction – Aggregate/nonmetallic processing – Foundry operations

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What would the proposed rule require?

• PEL of 50 μg/m3, averaged over an 8-hour

day.

• The proposed rule also includes:

– Framework for measurements of worker exposure, – access limitations to areas above PEL, – required controls to minimize silica exposure, – medical exams for workers with high silica exposures, and – hazard training.

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Impacts of Rule

• Foundries, construction facilities, and

nonmetallic transfer facilities face significant challenges to meet rule

• Nonmetallic mines likely not impacted

– MHSA has exclusive jurisdiction within active mine areas, not OSHA. – Fugitive controls already required by air permits.

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Status of Rulemaking

• At request of industry, comment period

extended to January 27.

• Deadline for filing a request to appear at

“informal hearing” on rule extended to December 16.

• Small foundries, construction workers

highest initial impacts from rule.

• Potential significant new source of

enforcement going forward.

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Questions?

Peter Tomasi Quarles & Brady LLP peter.tomasi@quarles.com 414-232-8911

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