Saturday, September 20, 2014

EPA Defends Revised Combustion Air Rules From Equity Advocates' Attacks

Posted: February 6, 2013

EPA officials are defending the agency's decision to revise a package of combustion air rules from environmental justice advocates' criticisms that EPA weakened the rules at the expense of public health, with the agency countering that the rules will still provide major health benefits by cutting air toxics from boilers, incinerators and cement plants.

Equity advocates outlined their attacks on the revised combustion rules on a Feb. 6 community conference call with staff from EPA's Office of Air Quality Planning and Standards (OAQPS). The package includes a boiler maximum achievable control technology (MACT) air toxics and area source rule, a commercial and solid waste incinerator (CISWI) air rule and non-hazardous secondary materials (NHSM) rule to determine whether units are subject to the MACT or CISWI rule.

EPA revised the rules from earlier versions in response to industry concerns that the original emissions regulations were unnecessarily strict and impossible to achieve. EPA issued the final revised rules Dec. 20, alongside a related Portland cement MACT that environmentalists have also criticized as inadequate to protect health.

EPA has already published the boiler MACT and area source rule in the Federal Register, while the CISWI and NHSM rules are slated for publication Feb. 7 and the cement MACT on Feb. 12. Publication of the rules triggers a 60-day window for groups to file legal challenges to the air rules and 90 days for the NHSM.

The cement industry might ask EPA to reconsider the final combustion air rules package that significantly strengthened particulate matter (PM) limits for incinerators, warning that cement plants classified as incinerators because they burn waste material for fuel may be unable to meet the stricter limit.

Environmental groups also signaled they were likely to challenge some provisions of the new package.

Further complicating the fate of EPA's revised combustion rules, environmental justice advocates are now raising concerns over the policies that make changes they say dramatically weaken the controls -- such as extended compliance deadlines and allowing technical adjustments that make it less costly for industries to comply.

On the Feb. 6 conference call to discuss the revised combustion rule package, New York environmentalist Jim Travers asked OAQPS officials, "How could you do this to us? Quite honestly, the [compliance deadline] delay is going to cause deaths and illnesses. . . . You're the EPA and I'm depending on you."

Montana environmentalist Jennifer Swearingen objected to changes to monitoring rules that remove requirements for continuous emission monitors (CEMs) for PM at cement plants and instead use milliamps -- a unit of electrical current -- as part of "parametric" monitoring. EPA said the revised monitoring approach was necessary because the CEMs did not operate correctly at the low level of PM now allowed in the rule. The agency also said the parametric monitoring would be just as effective as CEMS -- a claim Swearingen questioned.

Not using CEMs could make it harder to monitor whether units are complying with the regulations, she said. "I have grave concerns" regarding the parametric monitoring requirements, Swearingen noted on the call. Measuring milliamps has "no correlation to a PM amount that relates to the standard. It seems irresponsible," she added.

In response, EPA said that it will include a detailed memo explaining the issue when it publishes the cement MACT in the Register next week.

"To be clear, there is still a monitoring requirement," EPA's Toni Jones said on the call. "Instead of having a monitor that actually reads the emissions on a regular basis, we are monitoring how the source is operating."

Additionally, the rule allows four exceedances of MACT emissions limits per year before a cement facility is considered in non compliance with the standard, and the rule exempts emissions associated with startup, shutdowns and malfunctions (SSM) from the standard -- but Swearingen said SSM is when most violations occur.

Those revisions to the cement MACT, plus changes to the NHSM rule that make it easier to burn materials such as old tires that emit toxics when burned, mean, "What we're going to have is dirtier and dirtier fuel with no new controls and weaker limits. I do not see how this protects public health," Swearingen said.

EPA Defends Rules

EPA officials on the call pushed back against the environmental justice advocates' concerns, noting that the new PM limit in the cement MACT of .07 pound per klinker is an "enormous reduction." They also said the compliance delay is vital to allow time for units subject to the rules to install new control technology.

EPA did not have any representatives from its Office of Environmental Justice on the call, but OAQPS officials told the equity advocates that they discussed the changes to the combustion rules with management level environmental justice staff, including Lisa Garcia who advises outgoing EPA Administrator Lisa Jackson on the issue.

Equity advocates also wanted to know how the rules will impact already overburdened environmental justice communities and what air quality improvements the reconsidered package would bring to those areas.

For example, Stephanie Madden of Earthjustice complained that the presentation from OAQPS officials outlining the changes seemed like it was targeted to industry "because we keep hearing about the flexibilities provided. Are there any changes beneficial to environmental justice communities and tribal communities?"

In response, one EPA air official noted it is important to remember that the rules reconsider earlier policies. As they are "adjustments . . . you are not seeing very big changes in emission limits. Most are tweaks around the edges of the rules that came out. I think to show huge benefits to the environmental justice communities is going to be really hard to do because what the reconsideration was was to address the issues that were in the original rule."

Madden then asked if EPA considered potential detriments to equity communities in the reconsideration, particularly in the NHSM, which includes for the first-time categories of materials including tires that are not wastes.

EPA's George Faison noted that the new rule does not make something that was a waste now a non-waste. What the agency did, he said, was to list categories of materials as non-waste that had not previously been considered waste.

Swearingen added she had "serious concerns" with legitimacy criteria included in the NHSM, criteria she said was "so vague as to allow practically any waste" to become a non-waste, in particular because it only allows a comparison of the constituents of materials, not the emissions.

"For example, we know tires have a great deal of chlorine in them" as does some coal, so a comparison between the two would allow the tires to meet the legitimacy criteria as NHSM. But tires when burned also emit dioxin. "Yet the way the rule is written, we cannot consider emissions of these hazardous air pollutants in making these comparisons." She warned the NHSM combined with the cement MACT will mean the facilities will operate like they did before there was a CISWI rule "when cement kilns could burn practically anything."

But Faison defended the NHSM, noting the whole purpose of the legitimacy criteria is to determine whether material prior to combustion is a waste or not by comparing only pre-combustion levels of contaminants. He also noted the facility would still have to meet emissions limits.

However, he did admit that the example of dioxin from burning tires would not be considered in the legitimacy test because the dioxin was formed through combustion.

"That's exactly the problem," Swearingen said, calling the test "absurd," especially since the dioxin would only be measured every two-and-a-half years under the compliance provisions – a frequency, she said, that does not protect public health. -- Dawn Reeves (This e-mail address is being protected from spambots. You need JavaScript enabled to view it )


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