Affirmative Defense is Vacated for the Cement Industry

I wrote a blog back in February that was intended to raise the awareness level of the cement industry regarding new requirements for their MACT operations and maintenance (O&M) plans.  As part of addressing action items related to that blog, many owners/operators that are affected by 40 CFR Part 63, Subpart LLL – National Emission Standards for Hazardous Air Pollutants (NESHAP) From the Portland Cement Manufacturing Industry (Subpart LLL) may have already started the process of converting their startup, shutdown, and malfunction plan (SSMP) into an O&M Plan or a Malfunction Plan that specifically addresses affirmative defense. 

During our April 16, 2014 webinar titled “The Future of Startup, Shutdown, and Malfunction (SSM),” we further recommended that owners/operators start considering how to address affirmative defense as it relates to MACT plans, training, reporting, etc. If you participated in that webinar, you will also recall a segment that encouraged owner/operators affected by NESHAPs to follow rule development and promulgation.  Ironically, the D.C. Court of Appeals (Court) published a change for the Subpart LLL rules less than two days after our SSM webinar.  Fear not, this blog provides a summary of what you now need to know about the most recent Subpart LLL changes.

As a reminder, the U.S. Environmental Protection Agency (U.S. EPA) amended Subpart LLL in February 2013.  Subpart LLL was the first MACT standard to be issued without an exemption for malfunctions; instead it contained provisions allowing for an affirmative defense to penalties.  EPA created the affirmative defense language in response to the Court’s October 16, 2009 vacatur of the MACT SSM excess emissions exemption. 

So What Changed And Why?

On April 18, 2014 the Court unanimously ruled (Natural Resources Defense Council v. U.S. EPA) to vacate U.S. EPA’s “affirmative defense” in Subpart LLL.  The affirmative defense exempted excess emissions due to equipment malfunctions from Clean Air Act penalties.  The Court has determined that the affirmative defense protected emitters from private civil enforcement suits, which exceeds the U.S. EPA’s statutory authority.  Specifically, the Clean Air Act allows individuals to file federal citizen suits against facilities that violate emissions standards.  The affirmative defense restricted a court’s ability to assess penalties.  In rendering its decision, the court concluded that U.S. EPA cannot carve out a special legal defense for plant operators to cite if they are sued by members of the public in the event of a plant malfunction. This decision now gives the courts control in deciding whether penalties are appropriate in a given civil suit.

What Stayed The Same?

The Court upheld the Subpart LLL emissions standards and the 2015 compliance date in the amended rule.  The emission standards are less stringent than what the environmentalists believed to be appropriate and were challenged in the same suit.  This is considered an important victory for the cement industry. 

Now What?

U.S. EPA has been incorporating the affirmative defense to address the elimination of the SSM exemption provisions in other MACT rules and even in other regulations like revised New Source Performance Standards.  The Court’s April 18^th ruling means that any exceedance of an emission standard in Subpart LLL that results from a malfunction is a violation and subject to civil penalties.  When the change in Subpart LLL finds its way into other rules, the same will hold true and any relief from such penalties will involve courts and lawyers.  It will likely still be in your best interest to follow through and develop the data needed to support an affirmative defense against civil penalties but it will be even more important to maintain the highest level of effort around preventative maintenance activities to avoid malfunctions to the greatest extent possible.

If you still have unanswered questions or would like to learn how ALL4 can provide your organization with compliance assistance related to this and other air quality rules and regulations, please contact me at (610) 933-5246 x120 or at jkleinle@all4inc.com. If you were unable to attend our April 16, 2014 webinar on SSM and you would like a copy of the presentation materials, along with a recording of the session, please fill out the information here to download it.

Startup, Shutdown, and Malfunction (SSM) and Pressure Relief Devices Updates for Resin Manufacturers

Early this year, the U.S. Environmental Protection Agency (U.S. EPA) proposed several updates to the air toxics rule for manufacturers of amino/phenolic resins. On March 27, 2014, U.S. EPA incorporated changes into the following subparts of 40 CFR Part 63, National Emission Standards for Hazardous Air Pollutants (NESHAP, often referred to as Maximum Achievable Control Technology or MACT standards):  Subpart JJJ (Group IV Polymers and Resins); Subpart MMM (Pesticide Active Ingredient Production); and Subpart PPP (Polyether Polyols Production).  Both of these rulemaking activities include updates to emissions standards during periods of startup, shutdown, and malfunction (SSM), standards for previously unregulated hazardous air pollutant (HAP) emission sources, and revisions to require monitoring of releases from pressure relief devices (PRDs). The most impactful changes to these rules are the provisions that require affected facilities to operate control devices during SSM as they would during normal operation and to install devices to monitor the release of organic HAPs from PRDs.  A release from a PRD to the atmosphere would potentially be considered a violation. 

Industry groups submitted comments in response to these rules due to their potential to apply across entire industrial sectors nationwide.  Specifically, groups such as the American Petroleum Institute (API), the American Chemistry Council (ACC), and the National Environmental Development Association’s Clean Air Project (NEDA-CAP) commented on the rulemaking regarding the high costs of compliance, safety, and the technical difficulties associated with diverting PRD emissions to a control device such as a flare.  ACC described in its comments that not all control devices can operate at peak efficiency to meet the appropriate emission standards during SSM.  NEDA-CAP commented that U.S. EPA’s rules fail to distinguish between releases due to malfunctions and those that are caused by properly operating PRDs that avert the potential for catastrophic events.  Also, NEDA-CAP commented that there is not enough factual data behind the proposed rule to prove that HAP emissions from PRDs could cause significant environmental harm.

For decades, PRDs have been part of good process and safety engineering practices as a last line of defense in order to prevent equipment from exceeding maximum allowable working pressures in situations outside of the operators’ control.  Industry groups feel that by establishing a violation for a release from a PRD, U.S. EPA is forcing plant operators to choose between committing a violation by allowing the release to occur, or to attempt to stop the release, which could cause a catastrophic breach.

However, U.S. EPA has largely rejected industry’s complaints based on three (3) arguments. First, U.S. EPA maintains that industry’s complaints are not a sufficient basis for policy change due to the ruling of Sierra Club v. EPA, 551 F.3d1019 (D.C. Cir. 1008 or “Sierra Club”), which vacated the General MACT SSM requirements and set the precedent that the Leak Detection and Repair (LDAR) provisions allowing PRD releases are unacceptable since they prevent a source from being in continuous compliance with applicable MACT standards. Startup and shutdown periods remain subject to a MACT standard for normal operation under this ruling.  Second, U.S. EPA believes that releases from PRDs can potentially emit large quantities of HAPs to the atmosphere and are completely avoidable under proper operation of a plant.  Third, U.S. EPA assumes that a wide range of equipment can be used to measure HAP emissions from PRDs, and it is cost-effective for monitoring devices to be installed on individual PRDs.

U.S. EPA proposes that, based on the Sierra Club ruling, sources must still meet the same emission limits established for normal operation during a malfunction event, but give the source the opportunity to raise an “affirmative defense” to civil penalties for exceedances during a malfunction, such as a PRD release.  An affirmative defense allows facilities to demonstrate that the exceedance was caused by an unforeseeable and unpreventable malfunction.  This approach shifts much of the burden from U.S. EPA to the source in order to show that criteria are met in order to minimize financial penalties associated with the violation.  On a related note, please see a recent blog by ALL4’s JP Kleinle about changes to the affirmative defense provisions in the Portland Cement MACT standard. This legal action could impact the rules described in this blog, as well as others such as Boiler MACT. ALL4 will continue to provide updates on this ever-evolving topic.

After these two rule-making activities, it seems that U.S. EPA may be setting a precedent for subsequent revisions to similar provisions across industries nationwide.  Stay tuned to ALL4’s blog for more updates on SSM emission regulations as they continue to develop.  In addition, a recording of our April 16, 2014 webinar regarding the past, present, and future of SSM regulations and compliance strategies is available for download here.

RACT 2 In Pennsylvania is Now Proposed

The online version of the Pennsylvania Bulletin includes the long awaited proposed rulemaking “Additional RACT Requirements for Major Sources of NOx and VOC” (i.e., RACT 2).  The official publication date will be Saturday April 19, 2014.  The announcement and proposed rule can be viewed here.   There are three public hearings scheduled at the following dates and locations.  Each will start at 1:00 PM.  Comments are due on June 30, 2014. 

May 27, 2014
Department of Environmental Protection
Southwest Regional Office
Waterfront Conference Rooms A and B
400 Waterfront Drive
Pittsburgh, PA 15222

May 28, 2014
Department of Environmental Protection
Southeast Regional Office
Delaware and Schuylkill Conference Rooms
2 East Main Street
Norristown, PA 19401

May 29, 2014
Department of Environmental Protection
Rachel Carson State Office Building
Conference Room 105
400 Market Street
Harrisburg, PA 17105

Please refer back to ALL4’s blog next week for additional information.

New Ultra Fine Particulate NAAQS in the (Not So Distant) Future?

The U.S. Environmental Protection Agency (U.S. EPA) has expressed that a revisit of existing particulate matter (PM) National Ambient Air Quality Standards (NAAQS) may result in a first-time NAAQS for “ultrafine” particles (UFP).  UFP is defined as PM with a diameter of less than 0.1 µm.  UFP in and of itself is not currently a regulated pollutant (other than being a component of PM_2.5) since the contribution of UFP to ambient air levels generally is considered negligible, as PM compliance is typically based on particulate mass and total contribution.  However, U.S. EPA has begun to feel pressure to reconsider a NAAQS UFP from various environmental groups, despite the historical absence of regulations, on the basis of the “constituent toxicities or unique physical attributes of UFPs.”  New PM NAAQS are required by law to be finalized by late 2017.  A review of the NAAQS will include an integrated science assessment (ISA), which reviews all relevant scientific studies; a risk and exposure assessment using the ISA to detail the health risks to humans from PM exposure; and, a policy assessment to determine the policy options for revising the existing NAAQS.  A previous review of the PM NAAQS in 2012, found that the link between UFP exposure and adverse health effects was “suggestive,” but not conclusive.

Unlike larger PM particles (specifically, PM₁₀ and PM_2.5), research on the adverse health effects of UFP is still in the very early stages.  One of the largest known contributors of UFP is roadway air pollution.  Initial research suggests that UFP, specifically resulting from vehicle emissions, may lead to low birth weight and IQs in children, and cardiovascular and pulmonary repercussions in both children and adults.  Research also suggests that due to its much smaller size, UFP can be absorbed deeper into the body and persevere longer than larger PM particles.  U.S. EPA has warned that research is very preliminary and limited to only diesel exhaust. With this in mind, U.S. EPA is hesitant to create UFP regulations, as premature regulations may lead to improper control of the constituents that result in the greatest adverse health effects.  However, the upcoming review of the existing PM NAAQS could spark the additional research and monitoring that is needed to fully understand the effects of UFP on human health, and therefore lead to U.S. EPA’s first UFP NAAQS.

Kraft Pulp Mill NSPS (40 CFR Part 60 Subpart BBa) Has Been Finalized!

U.S. EPA has finalized their review of the Kraft Pulp Mill NSPS, codified at 40 CFR Part 60 Subpart BBa.  The final rule was published in the Federal Register on April 4, 2014.  The rule applies to affected facilities at Kraft pulp mills for which construction, modification, or reconstruction commences after May 23, 2013.  No other affected facilities have been identified by the new rule and the new rule does not replace Subpart BB which continues to apply to affected facilities constructed, modified, or reconstructed after the original Subpart BB applicability date September 24, 1976 but prior to the applicability date of Subpart BBa. The new rule only applies to the following affected facilities at Kraft pulp mills.

• Digester system
• Brownstock washer system
• Multiple-effect evaporator system
• Recovery furnace
• Smelt dissolving tank
• Lime kiln; and
• Condensate stripper system

The rule focuses on particulate matter (PM) and total reduced sulfur (TRS).  The emission limits are in terms of filterable PM; however, the rule requires a condensable PM performance test when conducting the initial and repeat performance testing for filterable PM.  The condensable PM test must be conducted using Method 202 of Appendix M of 40 CFR Part 51.  Table 1 summarizes the PM emission limits of Subpart BBa.

The TRS Emission Standards are summarized in Table 2 below.

The final rule contains the affirmative defense language that we’ve seen in many other new and revised regulations.  Also in line with other previous rule revisions is the removal of startup, shutdown, and malfunction (SSM) exemptions.  The rule states that the emission standards apply at all times. 

As expected, there is an initial and repeat performance testing requirement for PM and TRS.  The repeat testing will be required every five (5) years.  The performance test reports must be submitted using the U.S. EPA’s Electronic Reporting Tool (ERT).  Subpart BBa requires semiannual reporting of excess emissions.

The proposed rule was not consistent with Subpart S language.  The final rule has incorporated language consistent with 40 CFR Part 63 Subpart S in regards to requirements for closed-vent collection systems to correct this.  U.S. EPA also provided clarity regarding how excess emissions are defined.  Excess emissions are defined in §60.284(d) and (e) of the new rule along with specified averaging times (e.g. 12-hour block averages for TRS, 3-hour block average for combustion temperature, and % allowable for venting).  The original Subpart BB rules do not give this level of clarification.

When evaluating projects around your Kraft pulp mill, be sure to review this new rule to determine its potential applicability to your project.  This regulation is already effective as of April 4^th and applies to units that commenced construction, reconstruction, or modification after May 23, 2013.

ALL4’s Employee Spotlight: Hailey Sykes

Each quarter ALL4 interviews one of our employees, highlighting some of his or her career and thoughts about ALL4.  This month’s employee spotlight is on Staff Engineer Hailey Sykes.

What piece of advice would you give to college students looking for a position in the consulting business?

My advice is to stop being afraid to ask questions!  No one graduates from college knowing how to be a consultant, so ask every question you can think of throughout the interview process.

What are your roles at ALL4?

My biggest role as a Staff Engineer is to support the Project Managers and Leaders.  I have developed spreadsheets, filled out forms, worked on applications and permits, and done some modeling in the few months that I have been here.

What do you like best about your career?

Definitely the people I work with.  Everyone, even those I haven’t met up in Kimberton, are so willing to go out of their way to help me out when I am stuck on a problem.

Keeping it real, what do you not like about your career here?

The closest chipotle is 10 minutes away, so that’s a bummer.

What has been your biggest challenge since joining ALL4?

I have had a hard time remembering that in consulting you can’t just know something; you have to become an expert in it.  It’s definitely a different way of thinking from college when you are just trying to do the best you can in several different classes. 

What was your biggest surprise since joining ALL4?

My biggest surprise was that I started getting involved in projects on day one!  It was great to start contributing right at the beginning and having full, busy days.

Which ALL4 employee is most likely to make you laugh?

Definitely Maggie.  She has some hilarious stories about her first few months in Atlanta. 

Give me an example of an event, system, or person that best represents the ALL4 culture?

I think “dinners on the go” is a really good example of the ALL4 culture.  On nights when you are stuck at the office late and won’t have time to make dinner at home, you can grab a gift card to a local restaurant on your way out the door.  I think it really shows how much the hard work we put in is appreciated.

It has certainly been an atypical winter here in Georgia.  What are you most looking forward to about the warm summer months?

I’m looking forward to spending weekends at the beach or the lake!

For those ALL4 employees visiting from the Kimberton, PA office, what’s the number one thing that they should experience when they visit the Southeast Regional Office?

I think everyone should experience one of the bizarre things Georgia has to offer.  My personal favorite weird Georgia thing is Stone Mountain. You can hike to the top for a great view of the city then watch a laser show on a carving of Confederate soldiers.

ALL4 Air Quality Modeling Update

U.S. EPA Proposed New Categorical Non-Waste Fuels in Non-Hazardous Secondary Materials Rule

On February 7, 2013, the U.S. Environmental Protection Agency (U.S. EPA) issued final revisions to 40 CFR Part 241 (Solids Wastes Used as Fuels or Ingredients in Combustion Units), which, among other things, added a list of categorical non-waste fuels to the Non-Hazardous Secondary Materials (NHSM) regulation under the Resource Conservation and Recovery Act (RCRA). This list, codified in 40 CFR §241.4(a) (Non-Waste Determinations for Specific Non-Hazardous Secondary Materials When Used as a Fuel), consists of scrap tires, resinated wood, coal refuse, and dewatered pulp and paper sludges. In addition, the February 2013 rulemaking created an opportunity for anyone to submit a rulemaking petition to seek determination for additional NHSM to be listed in 40 CFR §241.4(a) as non-waste fuels. U.S. EPA indicated at the time that, based on preliminary data that had been submitted to U.S. EPA, paper recycling residuals (PRR), construction and demolition (C&D) debris, and creosote treated railroad ties (CTRT) would be good candidates for future proposals.

Since the February 2013 rulemaking, U.S. EPA has received supplemental information from stakeholders regarding the three (3) aforementioned NHSM in support of their candidacy as non-waste fuels. After almost one (1) year of review, proposed amendments to Part 241 (a pre-publication version) were signed by U.S. EPA’s Administrator on March 25, 2014. Specifically, the proposed rule identifies the following as NHSM when used as fuel:

1. C&D wood processed from C&D debris according to best management practices (which are detailed in the proposed rule text);
2. PRR generated from the recycling of recovered paper and paperboard products [which includes old corrugated cardboard (OCC) rejects] and burned on-site by paper recycling mills whose boilers are designed to burn solid fuels; and
3. CTRT that are processed and combusted in units designed to burn biomass and fuel oil. For the purposes of the proposed rule, fuel oil combustion is limited to those units that use fuel oil as part of normal operations and not exclusively for start-up and shut down. It is noted that U.S. EPA is considering an approach that would include a “secondary” categorical non-waste determination for CTRT that are: 1) combusted as part of normal operations in existing units that are designed to burn both CTRT and fuel oil; and, 2) combusted in units at pulp and paper mills where the combustion units are being modified in order to use natural gas instead of fuel oil. This second categorical exemption is under consideration, and if adopted, is in addition to the proposed categorical listing CTRT combustion in units designed to burn biomass and fuel oil. It is not an alternative approach or replacement for that current proposed listing.

ALL4 and one of its clients, M.A. Energy Resources, LLC (MAER), were extremely involved in working to obtain the categorical exemption for CTRT. On behalf of MAER, ALL4 prepared a categorical exemption petition, met with U.S. EPA, and provided multiple submittals to help support the petitioning process.

Facilities burning NHSM listed as categorical non-waste fuels are not required to make additional determinations that the material meets the legitimacy criteria or to provide further information to demonstrate their non-waste status. As long as the facility meets the conditions of the categorical listing (of which there are sometimes several), the NHSM does not have to be evaluated on the general case-by-case basis applicable to other NHSM regulated under the RCRA. For example, tire-derived fuel (TDF) is a categorically exempt non-waste provided it is produced from spent tires collected as part of a managed tire collection program. TDF produced from scrap tires that are not part of a managed reclamation collection program would not be a categorically exempt non-waste NHSM. Sources that combust a categorically exempt non-waste NHSM must document that the NHSM is categorically exempt as part of the record keeping requirements in the major source and area source Boiler Maximum Achievable Control Technology (MACT) regulations at 40 CFR Part 63 Subpart DDDDD and JJJJJJ, respectively.

The pre-publication of the proposed rulemaking has been submitted for publication in the Federal Register. We expect a public comment period to be defined in the publication.