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Solid Waste Management Rule: WVDEP Responds to Comments on Proposed Revisions

Earlier this year, the West Virginia Department of Environmental Protection (WVDEP) proposed revisions to West Virginia’s Solid Waste Management Rule, 33 CSR 1. The proposed revisions include removing the requirement that Free Day tonnage count toward monthly/daily totals for landfills and defining the term pick-up truckload as the equivalent of 500 pounds. The definition of pick-up truckload is important because all solid waste facilities in West Virginia are required by W. Va. Code §22-15-7 (2009 Repl. Vol.), to provide one day a month when residential waste (up to one pick-up truck) may be disposed of free of charge. While Free Day discourages the improper, unlawful dumping of waste, it also results in lost revenue for the WVDEP and the county or regional Solid Waste Authorities (SWAs) because the tons are exempt from state and county assessment fees. The WVDEP recently responded to comments opposing the revisions by two of the fifty SWAs in West Virginia as well as comments supporting the revisions by the West Virginia Association of Waste Haulers & Recyclers and the West Virginia Landfill Managers Association. The WVDEP’s response to comments are important for owners and operators of commercial and municipal solid waste landfills and transfer stations, solid waste haulers and recyclers, and county and regional SWAs in West Virginia because they offer insight into the WVDEP’s interpretation of regulatory revisions that will likely be adopted by the West Virginia Legislature in 2010.  

Harrison County, which is the home of the Federal Bureau of Investigation Fingerprinting Center, is also the home of two landfills. The Harrison County SWA objected to the proposed regulatory language limiting a pick-up truckload to 500 pounds as contrary to legislative intent, citing the Legislature’s failure to pass S.B. 585 which attempted to make the same change to the statutory language. In addition, the Harrison County SWA explained that it had only one set of scales and expressed concerns pertaining to a backlog of vehicles onto the public highway and traffic safety issues on Free Day as well as increased illegal dumping. The WVDEP responded that the proposed change to limit a pick-up truckload to 500 pounds would not negatively affect the intent of Free Day, explaining that the intent behind defining a weight limit for the total amount of waste that could be brought to the landfill by one truck was to reduce or eliminate the occurrences of overloaded, overweight vehicles littering the highways and streets leading to the state’s landfills.  

The Berkeley County SWA also objected to the proposed definition to limit one pick-up truckload to 500 pounds. Relying upon data from the U.S. EPA that the average person generates 4.6 pounds of refuse per day, which works out to 552 pounds in 30 days for a family of four, the Berkeley County SWA contended that a weight limit would lead to illegal dumping or stock piling of waste in the back yard. In addition, the Berkeley County SWA expressed “fairness” concerns, stating that the Free Day was “close to being whittled down to no value”. In response, the WVDEP noted that the West Virginia State Plan estimates that a family of four generates 480 pounds of refuse in 30 days, and revised the definition of pick-up truckload or its equivalent to be no more than 516 pounds, the average of the U.S. EPA and West Virginia estimates and the equivalent of approximately 50 bags of trash per family of four per month.  

The Berkeley County SWA also objected to removing the requirement that Free Day tonnage count toward monthly/daily totals for landfills. It explained that the Berkeley County landfill is private and that the monthly and daily tonnage limits were “long-standing agreed upon concessions during the landfill’s initial siting”. The Berkeley County SWA expressed concern that the proposed revision would undermine its agreement as well as “place more tonnage into the facility, more traffic near the schools and more litter on the roads”.   The WVDEP acknowledged the negotiations involved in the siting of the Berkeley County landfill but concluded that the proposed change should not have a negative effect on its operations. The WVDEP reasoned that if Free Day tonnage were to count against a landfill’s monthly or daily total, a landfill could theoretically reach its limit before the end of the month, which would mean it could not accept any more waste that month. The WVDEP further reasoned that if the landfill could not accept waste, it would accumulate on curbs or in yards or garages, creating a greater chance that such waste would be illegally dumped or otherwise contribute to a public health risk.  

In contrast to the comments opposing the proposed revisions, the West Virginia Association of Waste Haulers & Recyclers supported the proposed revision of limiting one pick-up truckload or its equivalent to 500 pounds, finding that it provided clarity to the volume of waste permitted to be disposed of on Free Day, and agreed that the revision would help reduce litter from overloaded trucks. Like the West Virginia Association of Waste Haulers & Recyclers, the West Virginia Landfill Managers Association also supported the revision to limit Free Day disposal to 500 pounds per visit. The West Virginia Landfill Managers Association stated that the weight limit would reduce the unsafe storage of waste for long periods of time and “deter the practice of businesses or individuals charging for cleanup services, un-certificated hauling of trash from multiple households or businesses, and construction and demolition debris being disposed on ‘Free Day’.”  

Both the West Virginia Association of Waste Haulers & Recyclers and the West Virginia Landfill Managers Association supported the proposed revision that Free Day tonnage not count against the facility’s monthly or daily tonnage limit. They reasoned that the proposed revision would result in paying customers not being denied access to landfill space and would relieve the costs and burdens Free Day poses to rate-paying customers, the landfills, and the SWAs.  

In addition, the West Virginia Association of Waste Haulers & Recyclers suggested the rule be further revised to provide for designated areas at each landfill where Free Day customers could unload their vehicles without tying up traffic at the landfill face. The West Virginia Association of Waste Haulers & Recyclers also asked the WVDEP to require a prominent sign posted at each landfill to underscore the penalty for violating the mandatory disposal provisions of the West Virginia Code. The WVDEP declined to make these requested changes explaining that they were outside the scope of the proposed revisions, the purpose for the public notice, and the impetus for the revisions.   

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, see here.

USEPA Updates Chemical Export Notification Requirements Under TSCA

On September 3, 2009, the USEPA released an updated table that lists more than 200 chemicals that are or have been subject to final Toxic Substances Control Act (TSCA) Section 4 test rules and/or enforceable consent agreements (ECAs) issued by the USEPA under the TSCA Existing Chemicals Testing Program. The table, which is identified as the “Sunset Dates of Chemicals Subject to Final TSCA Section 4 and Related 12(b) Actions, Modified on September 1, 2009,” provides the following information:

·     Each chemical compound in ascending Chemical Abstract Service (CAS) Registry number order.

·     The Federal Register (FR) and Code of Federal Regulations (CFR) citations.

·     Sunset date/status for export notification requirements.

USEPA states that subject chemical substances or mixtures will remain in the table for historical as well as information purposes, even when those chemical substances or mixtures have sunset and TSCA Section 4 final test rules and enforceable consent agreements/orders are no longer applicable.   Finally, the USEPA states that it plans to use the expanded information in the table to revise and update that table that is currently found at 40 CFR 799.18. Information regarding the specific TSCA Section 12(b) export notification requirements are found in 40 CFR 707 Subpart D. USEPA’s announcement and updated table are available at www.epa.gov/oppt/chemtest/pubs/sunset.html. 

 

This article was authored by Greg Tieman, Acacia Environmental Group LLC. For more information on the author see here. 

West Virginia’s Draft Sustainability and Environmental Excellence (SEE) Bill

On November 6, 2009, the West Virginia Department of Environmental Protection (WVDEP) released a draft bill titled “Sustainability and Environmental Excellence Program,” that the agency intends to brand as “SEE Change”. It is anticipated that the legislation, or a version of the legislation, will be introduced during the 2010 Legislative Session. The SEE Program is intended to replace the state Environmental Excellence Program, W. Va. Code §§ 22-25-1 et seq. (2009 Repl. Vol.), that was automatically repealed on June 30, 2009. To read the full text of the draft SEE bill, click here.  

With the repeal of the state Environmental Excellence Program, the WVDEP convened a task force to consider the future of the program in West Virginia in light of the U.S. Environmental Protection Agency’s termination of its National Performance Track Program which the state Environmental Excellence Program was intended to mirror. The task force consisted of representatives from industry, manufacturing, electric power generation, tourism, government, academic circles, and environmental and community groups.  

The SEE Program is broader in scope than the Environmental Excellence Program. The purpose of the SEE Program, as stated in the draft bill, is to “promote, inspire, and reward leadership and excellence in developing and implementing sustainable strategies that include an emphasis on integrating societal, environmental, and economic benefits.” Goals of the program would include setting “measurable and identifiable goals for reducing [participants’] environmental footprint,” “promoting strategies, technologies and programs that incentivize sustainability and environmental stewardship,” and “lowering the barriers to and the costs associated with sustainable operational processes and procedures”.  

The draft bill contemplates that the WVDEP Secretary would establish an executive committee to assist in the administration of the program. The committee would consist of the WVDEP Secretary, the Secretary of the Department of Commerce, the Secretary of the Department of Revenue, the Secretary of the Department of Administration, the Secretary of the Department of Education, the Chair of the Public Service Commission, at least one person who represents local governments, at least one person who represents industries regulated by the WVDEP or their trade associations, at least one person who represents organized labor, at least one person who represents organizations advocating environmental protection, and at least two persons who represent the public at large.  

The executive committee would be tasked with studying the issues, developing a long-term strategy, and issuing a report to the Legislature by July 1, 2011. The report to the Legislature would contain recommendations concerning appropriate methods to encourage the development of the SEE Program, any legislation to incentivize participation in the program, methods of facilitating the wide-spread implementation of companion sustainability and environmental excellence programs throughout West Virginia, methods of financing program operations, and the executive committee’s long-term strategy for the promotion of sustainability and environmental excellence in West Virginia. The executive committee would also assist the WVDEP in developing and promulgating legislative rules implementing the program.  

While the state Environmental Excellence Program was limited to incentives granted by the WVDEP, the draft SEE bill seeks to expand the scope of incentives by authorizing the WVDEP Secretary to negotiate with federal regulatory agencies and state and local agencies within West Virginia to obtain authority to grant incentives under federal and other state or local programs. Examples of incentive categories that the executive committee would be tasked with considering include: marketing support and recognition; capacity building; single points of contact, streamlined communication, and technical assistance at the WVDEP and any other interested agency; tax benefits; reduced energy or water rates based upon implemented facility-wide conservation measures; access to low cost capital in the form of state and private loans or state and federal grants or priority assistance for local economic development funds; “consideration” regarding monitoring, inspections, reporting, and permitting; membership discounts to trade associations and green business networks; and expedited consideration for zoning variations by local government entities. 

The draft bill would set minimum criteria for registration and for participation in the program and authorize the WVDEP Secretary to establish additional program elements. The minimum criteria are set forth in section 6 of the draft bill and extend well beyond traditional environmental matters. The minimum criteria for registration would include: “compliance with environmental laws,” “commitment[s] to develop a sustainability policy[,]…an environmental management system[, and] …a pollution prevention and conservation plan,” and “commitment[s] to transparency,… community involvement,…economic development,…and leadership development”. Minimum criteria for participation would include: “sustained compliance with environmental laws,” “well developed sustainability policy[,]…environmental management system,…[and] pollution prevention and conservation plan,” “transparency, openness, communication, and accountability in operations,” “active community involvement,” and “active participation in economic development…and…leadership development”.  

To implement the SEE Program, the WVDEP Secretary and participants would enter into a SEE performance agreement. Similarly, under the Environmental Excellence Program, the WVDEP Secretary and program participants entered into performance agreements. The contents of the performance agreements under the Environmental Excellence Program and the draft bill are very similar with one exception. The one exception is that the Environmental Excellence Program included a plan for integrating into the agreement any relevant regulations that are promulgated during the duration of the agreement. The draft SEE bill does not list a similar provision for the contents of the SEE performance agreement. 

Under both the former Environmental Excellence Program and the proposed SEE Program, any participant may elect to withdraw from membership in the program at any time upon written notice. Under the Environmental Excellence Program, the notice was given to the WVDEP Secretary, whereas under the SEE Program, the notice would be given to the executive committee. The executive committee would also have authority to continue, suspend, or terminate the membership of any participant in the program.  

Unlike the Environmental Excellence Program, the draft SEE bill does not include provisions for judicial review of the WVDEP’s decision on acceptance of applications to participate in the program. Nor does the draft SEE bill require the WVDEP Secretary to propose legislative rules establishing incentives to be granted to any participant that complies with all of the mandatory program elements.  

The draft bill attempts to address funding. The WVDEP Secretary would be authorized to receive on behalf of the state for deposit into the state treasury any monies that state institutions of higher learning or state or federal agencies may be authorized to transfer to the Secretary, and all gifts, donations, or contributions that private entities or others may provide to defray the expense of administering program. Any amounts so received would be expended by the WVDEP solely for the purposes of the SEE Program. The bill tasks the Executive Committee with developing funding mechanisms for financing program operations, including the creation of a trust fund in the state treasury with the funds dedicated and appropriated to the WVDEP to administer the program. The Environmental Excellence Program included a similar funding concept. See W. Va. Code 22-25-11. However, the Environmental Excellence Program also authorized the WVDEP Secretary to establish by legislative rule reasonable application, renewal and administration fees to recover the cost to the agency in developing, negotiating and publicizing an environmental performance agreement. The draft SEE bill does not contain a similar cost recovery provision. 

The draft bill provides that the SEE Program would sunset June 30, 2015. Comments on the draft bill have been requested by November 20, 2009. Comments are to be submitted directly to the WVDEP’s contractor and addressed to adam.saslow@plexusli.com. The draft bill will be presented as a point of information to the Advisory Council on December 9, 2009.  

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.

EPA Working With Senators Cardin and Alexander to Draft Clean Water Act Amendment That Would Prohibit Excess Spoil Valley Fills Associated With Mountaintop Mining

In March 2009, Senators Cardin (D-Md.) and Alexander (R-Tn.) introduced Senate Bill S. 696, otherwise known as the Appalachian Restoration Act. S. 696 would have amended the Clean Water Act to define “fill material” as any pollutant that has the effect of filling or raising the bottom elevation of a water body “for any purpose,” but to exclude from the definition:  

(i) the disposal of excess spoil material as described in Section 515(b)22 of the Surface Mining Control and Reclamation Act (30 U.S.C. § 1265(b)(22)) in waters of the United States; or

(ii) trash or garbage.

The goal of the Senators was to prohibit the practice of “mountaintop removal mining” in Central Appalachia by prohibiting the Corps of Engineers from issuing the “fill” permits needed under Section 404 of the Clean Water Act (33 U.S.C. § 1344) to construct excess spoil valley fills.  

The Senators were subsequently advised that their amendment would affect virtually all surface mining (not just mountaintop mining) in Central Appalachia because all forms of surface mining generate excess spoil that must be placed in valley fills. In response to these comments, the Senators asked USEPA Administrator Lisa Jackson in a letter dated June 3, 2009 whether their amendment would be limited to mountaintop removal coal mining.  

By letter of July 31, 2009, USEPA first defined “mountaintop removal mining” by resort to OSM’s regulatory definition under the Surface Mining Control and Reclamation Act. That regulation, found at 30 C.F.R. § 785.14, defines mountaintop removal mines as operations that remove:

an entire coal seam . . . running through the upper fraction of a mountain, ridge or hill . . . by removing substantially all of the overburden off of the bench and creating a level plateau . . . capable of supporting post-mining land uses in accordance with . . . this section.  

This regulation generally describes those operations that remove all of a coal seam and that seek a variance from the general obligation under SMCRA to restore “approximate original contour” (“AOC”). The regulation does not include those operations that remove an entire coal seam, but which also restore AOC. In any event, USEPA informed the Senators that their original bill would not have excluded spoil generated at mountaintop removal mines from the definition of “fill material,” but would have excluded excess spoil “associated with any surface coal mining activity”—a result evidently broader than that envisioned by the Senators. 

The Senators then prepared a new draft bill to narrow the scope of the “fill” exclusion and submitted it to USEPA for further review. By letter of September 11, 2009, they asked USEPA whether the new bill’s prohibitory effects would be limited to mountaintop removal coal mining. The revised draft would exclude from the definition of “fill material” the disposal of excess spoil “generated through mountaintop removal mining. . . .” It would also define “mountaintop removal mining” as any surface mining activity that involves both “the removal of the upper portion of a mountain, ridge or hill to expose 1 or more coal seams” and “the disposal of excess spoil in heads of hollows, valleys or streams.”  

This language would not restrict the scope of the bill to mountaintop mines with AOC variances, but would also exclude from the definition of “fill material” excess spoil from mountaintop mines that also proposed to restore AOC. Unlike the existing regulatory definition of mountaintop removal mining, which restricts the definition to those mines that remove “an entire coal seam” by “removing substantially all of the overburden,” the Senators’ bill did not use the words “entire” or “substantially all” in describing the removal process. Rather, it would include any mining that involved “the removal of the upper portion of a mountain . . . to expose . . . coal seams.” 

In response, USEPA issued a letter of September 22, 2009 suggesting alternative language. USEPA’s suggested language would exclude from the definition of “fill material” “mining overburden generated from mountaintop removal mining.” It would define mountaintop removal mining as any surface mining that involves:

the removal of an entire coal seam from outcrop to outcrop or seams running through the upper fraction of a mountain, ridge or hill by removing substantially all of the overburden off the mine bench. 

In short, Senators Cardin and Alexander continue to work on a bill that would exclude valley fills associated with mountaintop mining from Section 404 of the Clean Water Act and thereby make them impossible to permit. 

This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.

Highlights from the Ozone Transport Commission Fall Meeting in Baltimore, Maryland

    The Ozone Transport Commission (“OTC”) held its fall meeting in Baltimore, Maryland on November 5, 2009. After a brief introduction by Sherri Wilson, Tad Aburn (Md) started with a short presentation on the ambient ozone data that is being collected in the OTC, noting the existence of the large upper level reservoir of ozone above the Mid-Atlantic and Northeast areas during the morning hours on bad ozone days. The reservoir historically contained measured levels of more than 100 ppb ozone even while ground levels were in the 60 ppb range. However, once the diurnal inversion breaks up, the reservoir mixes to ground level causing ozone exceedances. Aburn stated that the NOx SIP Call worked, because the reservoir used to contain levels of 100 ppb or more and now is usually in the 70 ppb range. However, on any given day, the transport portion of ambient ozone can be at least 50% of ground level measurements in the Ozone Transport Region (“OTR”). Aburn referred to the 17-state letter (on behalf of OTC and LADCO) to U.S. EPA that contains sweeping recommendations to help deal with transport issues. The OTC believes that it needs 500,000 tons of additional NOx reductions within the OTR in order to reach attainment. The OTC states are planning based on a 2017 attainment date for moderate ozone nonattainment areas so controls must be in place by 2014. Aburn concluded by saying that ozone and PM2.5 levels have never been lower, but tougher ozone and particulate matter (“PM2.5”) standards are on the horizon so more work is ahead.  

    U.S. EPA Assistant Administrator, Gina McCarthy, spoke on behalf of the Obama administration about U.S. EPA’s priorities for Ozone and other regional air pollutants. For more information about her speech, please see the blog article “U.S. EPA Assistant Administrator Gina McCarthy Speaks Out.” 

    Leah Weiss and Gary Kleiman, both of NESCAUM, presented an integrated approach to criteria pollutants, mercury and greenhouse gases (“GHGs”).  Weiss opened the presentation noting that NESCAUM has developed an integrated multi-pollutant analysis tool and has been working with New York, Massachusetts, and Maryland to test it. The rationale for this tool is that single pollutant strategies are inconsistent and that multi-pollutant strategies are more cost effective and efficient.  

    NESCAUM believes that strategies should address SO2, NOx, CO2, PM, and Hg. To do so will require changing the planning paradigm by looking at longer term planning horizons. This is due to the fact energy and climate programs work better under longer term cycles, while the air quality agenda requires some short term schedules.  

    Kleiman then described the Multi-Pollutant Policy Analysis Framework (MPAF). The centerpiece is a MARKAL model tailored for the Northeast to evaluate energy systems. Outputs include expenditures and emissions data that serve as input to CMAQ and a 12 state REMI model.  

    Kleiman described the MARKAL model inputs and outputs. He showed an example using transportation policy, analyzing the sensitivity to an electric vehicle mandate. The model produced output showing the numbers of vehicles in each category that the policy affected and also allowed an analysis of the impact on the power sector from use of the additional electric vehicles, including impact on air emissions.  

    Kleiman said that the tool is valuable because, it allows monetized mortality and morbidity calculations for use in policy analysis. Advantages include being quick to run, inexpensive to use, transparent to review, detailed enough to assess a wide range of climate and air quality strategies, outputs can be linked to other models, is a multi-pollutant model, shows trade-offs, and is an energy model. Limitations include being unable to address consumer behaviors.  

    Weiss closed saying NESCAUM is recommending use of this model to inform air, climate, and energy policies. NESCAUM is looking for opportunities to work with EPA using the model. Aburn added that the model needs to be able to incorporate environmental justice considerations. 

    Barbara Kwetz, Massachusetts Department of Environmental Protection (“MA DEP”), addressed OTC’s modeling & inventory. Kwetz showed slides of ambient ozone measurements in the OTC. The results were optimistic, there was cleaner air in 2009 than in prior years. Only two sites in the OTC had values in excess of the 1997 standard. There were exceedances of the 75 ppb standard throughout the corridor and in western Pennsylvania. Kwetz noted that meteorology played a part in this result because; it was not conducive to formation of ozone in 2009. The economic downturn also impacted the data. The 2009 data continues a downward trend in ambient levels of ozone. Kwetz showed a slide and a statistical analysis that leads her to believe that the downard trend is not just based on weather and the economy, however, noting that the statistical analysis leads to a conclusion that controls are working. Kwetz did note that a new 70 or 65 ppb standard will be problematic based on these data. 

    Kwetz next described inventory plans and said that stakeholders are now reviewing the 2007 point source inventory. She showed a slide depicting the top 125 NOx sources in the OTC and Virginia as well as an emissions trend slide showing that more than half of the sources had reduced NOx emissions between 2007 and 2009. 

 

    Area sources are becoming a significant sector of the inventory and MARAMA has made a number of improvements in the OTC area source inventory. The U.S. EPA draft 2008 inventory is due out soon. Temporal allocations are being included to reflect variability in emissions that affect air quality on a seasonal, daily, and hourly basis. U.S. EPA is requiring use of the new MOVES model for mobile sources but, until the new model can be used, prior data will be used. The MOVES model continues to be problematic and, even though required by U.S. EPA, is thus far not able to be used. 

    Stakeholder comments on the point source inventory were due November 3. The schedule going forward is that in November 2009 the contractor will finalize the 2007 inventory and, by December 2009, U.S. EPA will finalize the MOVES model. Key inventory issues include U.S. EPA approval of alternative methods for forecasting EGU emissions. 

    The modeling platform is CMAQ, using update BEIS for biogenics, updated carbon bond chemistry, 2002 MM5 data, 2005 emissions, and the SMOKE preprocessor. Upgrades to the new platform result in all data points still being predicted to be less than 75 ppb, as was the case using the old platform. This is a screening model and is not SIP quality modeling and Kwetz acknowledged that point. Additional upgrades, including biogenics based on MEGAN, a new base year of 2007, temporalized EGU emissions from EPA/CAMD, and use of MOVES are planned. Kwetz next described the modeling preformed to analyze HEDD. The path forward includes projecting the impact of HEDD on air quality.  

    Chris Salmi made an added presentation describing a New Jersey screening model analysis. Salmi described several scenarios involving electric generating units (“EGU”) controls, including one with EGU NOx emission at 0.10 lbs/MMBtu throughout the OTR. Salmi stated that the modeled rate was 0.07 lbs/MMBtu during his presentation, but later appeared to say that it was 0.1 lbs/MMBtu in response to a question so it was not clear which rate was actually modeled. While there were no monitors projected to exceed 85 ppb, benefits from EGU controls and industrial, commercial and institutional (“ICI”) boilers appeared to amount to a reduction of no more than 6 or 7 ppb at any location. Salmi closed with the caveats that this analysis was performed using existing models, that it used only one month of emissions data, that HEDD was not included, and that the mobile model was MOBILE6. 

    When asked by a stakeholder whether Salmi had performed a similar analysis using a NOx limit of 0.15 lbs/MMBtu as recommended by the OTC and LADCO, Salmi said that he had not. 

Anna Garcia, Executive Director, OTC, described OTC accomplishments including the OTC/LADCO cooperative project culminating in the 17 state letter to the U.S. EPA mentioned previously. That activity resulted from the vacatur of the Clean Air Interstate Rule (“CAIR”). She characterized the effort as showing that a national program focused only on EGUs will not be enough so that a broader set of sectors must be analyzed. The project included technical work that recognized regional differences on “certain issues,” and calls for reductions in all sectors, large point sources, mobile sources, and area sources, to meet NAAQS.   The collaborative letter called for a timely and robust Federal program that requires substantial regional emissions reductions from mobile sources, area sources, and large point sources.  

    The EGU point source strategy calls for federally enforceable CAIR Phase I controls, optimizing existing NOx and SO2 controls, federally enforceable low cost NOx controls, and statewide emissions caps (with no allowance bank) based on rates not to exceed 0.11 lbs/MMBtu NOx and .25 lbs/MMBtu SO2. The Non-EGU strategy is to identify priority categories and evaluate control options, evaluate potential for reductions from ICI boilers, new engine standards for mobile sources, and area source controls. 

    Garcia then said that the OTC recommends a hybrid approach calling for earlier statewide emissions caps (prior to 2017), early regional trading (no later than 2014), and consideration of strategies for other pollutants that are on the way, e.g., greenhouse gasses. Garcia also explained OTC recommendations on state lead planning for attainment, noting that U.S. EPA needs to ensure that models portray all types of transport accurately. Scott Mathias (EPA OAQPS) noted that EPA had received all of the recommendations, appreciates the work, and is considering the recommendations.    

Ali Mirzakhalili, DNREC & Chris Salmi, NJDEP jointly presented the SIP planning timeline. Mirzakhalili (MD) provided an update on Stationary & Area Source (SAS) Committee activities. The SAS Committee is analyzing costs of various control strategies for a number of pollutants including VOCs, NOx, and SO2.  

    Mirzakhalili then reported on the Committee measurement development process, including the work presented in September at the OTC meeting in Niagara Falls, New York, adding that the Committee had received many comments during the comment period and was also offering the opportunity for additional comments today. Mirzakhalili summarized the comments to date, including those from UARG, MOG, and the unions on EGUs and comments from others regarding other sectors. 

    Next steps include source sector discussions, calls with stakeholders, finalizing screening model inputs and which measures to include, holding a stakeholder meeting in the spring of 2010, and evaluating oil and gas EGU performance standards. Gene Trisko on behalf of the United Mine Workers of America, AFL-CIO, commented that there is a consent order on the utility Hazardous Air Pollutant (“HAP”) rule as well as other control measures under U.S. EPA action and suggested that the SAS Committee consider all of the recent U.S. EPA initiatives in its deliberations.  

    Chris Salmi (NJ) provided an update on OTC Mobile Source Committee activities, including lightering, non-road idling, and sea ports, as well as other initiatives including catalyst replacement. Next steps include recommendations for screening model analysis for lightering, idling programs, and sea port controls, and developing a program outline for catalyst replacement. A white paper will be developed for all strategies much like the SAS Committee white paper and posted for comment.  

With regard to formal motions, the Commission approved a resolution updating the coatings model rule resolving that “the OTC member states will pursue as necessary and appropriate state-specific rulemakings to update state rules in accordance with the OTC Model Rule for Motor Vehicles and Mobile Equipment Non-Assembly Line coatings Operations. 

    The Commission approved a charge to Committees to “jointly develop” a Memorandum of Understanding regarding the adoption of new local measures by the OTC states based on the analysis of potential control options currently underway by the Committees for attainment of the ozone NAAQS. The MOU is to be available for consideration by the Commission at its June 2010 meeting tentatively scheduled to be June 3 in Boston, Massachusetts. 

    The Commission approved a Statement on National Measures urging U.S. EPA to “promulgate Federal regulations based on successful regional and local control strategies and controls implemented by the OTC states.” Numerous sectors including large non-EGU point sources, consumer and commercial products, cement kilns, stationary reciprocating combustion engines and distributed generation, asphalt manufacturing and paving, glass manufacturing, mobile equipment repair and refinishing, and solvent cleaning operations should be subject to the recommended national standards. Finally, The Commission approved a statement requesting U.S. EPA to finalize the MOVES model for mobile sources.  

This article was authored by Laura G. Swingle, Jackson Kelly PLLC. For more information on the author see here.

EPA Releases CO NAAQS Review Document for Public Comment

On October 29, 2009 EPA announced the release for public comment of a draft risk assessment document titled “Risk and Exposure Assessment to Support the Review of the Carbon Monoxide (CO) Primary National Ambient Air Quality Standards--First External Review Draft. (74 Fed Reg 208, 55843). The report describes the quantitative analyses that are being conducted as part of the review of the National Ambient Air Quality Standards (NAAQS) for carbon monoxide (CO). 

Under Section 108(a) of the Clean Air Act (CAA), the EPA Administrator must identify and list pollutants that “cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.” EPA then issues air quality criteria for these listed pollutants, commonly called “criteria pollutants.” The air quality criteria are to “accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of [a] pollutant in the ambient air, in varying quantities.”  

Section 109 of the CAA requires EPA to establish primary (health-based) and secondary (welfare-based) NAAQS for pollutants for which air quality criteria are issued. Section 109(d) of the CAA requires periodic review and, if appropriate, revision of existing air quality criteria. The revised air quality criteria reflect advances in scientific knowledge on the effects of the pollutant on public health or welfare. EPA is also required to periodically review and revise the NAAQS, if appropriate, based on the revised criteria.

EPA is reviewing the air quality criteria and NAAQS for CO. EPA's overall plan and schedule for this review includes a draft of the integrated review plan which was released for public review and comment in March 2008 and was the subject of a consultation with the Clean Air Scientific Advisory Committee (CASAC) on April 8, 2008 (73 FR 12998). Comments received from that consultation and from the public were considered in finalizing the plan and in beginning the review of the air quality criteria. 

 

In reviewing the primary CO NAAQS, EPA says it is conducting qualitative and quantitative assessments characterizing the health risks associated with exposure to ambient CO. EPA's plans for conducting the assessments, including the proposed scope and methods of the analyses, were provided in April of 2009 (74 Fed Reg 15265) in a planning document titled “Carbon Monoxide National Ambient Air Quality Standards: Scope and Methods Plan for Health Risk and Exposure Assessment (Scope and Methods Plan)” that was the subject of a Clean Air Scientific Advisory Committee (CASAC) consultation. EPA states that comments received from the CASAC consultation, as well as public comments on the Scope and Methods Plan, have been considered in developing the draft assessment document being released at this time. 

 

The draft document announced October 29 conveys the approaches taken to assess exposures to ambient CO and to characterize associated health risks, as well as present the initial key results, observations, and related uncertainties associated with the quantitative analyses performed. Following receipt of input from a public meeting with the CASAC regarding this document, EPA says it will consider comments received from the CASAC and the public in preparing revisions to this assessment document. 

 

EPA notes that this draft document “does not represent and should not be construed to represent any final EPA policy, viewpoint, or determination,” and states that it “will consider any public comments submitted in response to this notice when revising the documents.”  

 

Comments on the latest draft are due no later than November 19, 2009 and may be submitted to Docket ID No. EPA-HQ-OAR-2008-0015 online at http://www.regulations.gov, by email to a-and-r-docket@epa.gov, Attention Docket ID No. EPA-HQ-OAR-2008-0015, by fax to 202-566-9744, Attention Docket ID. No. EPA-HQ-OAR-2008-0015, or by regular mail to Air and Radiation Docket and Information Center, Environmental Protection Agency, Mailcode: 2822T, 2200 Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. EPA-HQ-OAR-2008-0015. EPA said that its policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov. 

This article was authored by Skipp Kropp, Jackson Kelly PLLC. For more information on the author see here.

Proposed Covered Electronic Device Takeback Program: WVDEP Responds to Comments

The West Virginia Department of Environmental Protection (WVDEP) has responded to comments on the proposed Covered Electronic Device Takeback Program Rule, 33 CSR 11, that the agency proposed as required by S.B. 746 that took effect in June 2008. The 2010 Legislature will likely adopt a version of the proposed rule, and the WVDEP’s response to comments provides guidance for manufacturers selling or interested in selling computers, monitors, televisions, digital picture frames and other electronic devices in West Virginia as well as counties and municipalities interested in obtaining funding to stage electronic takeback events or establish long-term takeback/recycling programs for electronic devices. The WVDEP’s response to comments may also be of interest to retailers and consumers of electronic devices seeking access to the manufacturers authorized to sell or lease their products in West Virginia. 

Senate Bill 746 added six new sections to The A. James Manchin Rehabilitation Environmental Action Plan, which are codified at W. Va. Code §§22-15A-24 through 29, relating to implementing a takeback program for certain electronic devices with manufacturers. The proposed rule would establish procedures for manufacturers of covered electronic devices (CEDs) to register their brands with the state and pay the required annual registration fee. During the first year of the program, the initial registration fee is $10,000 per manufacturer that has not implemented a takeback program in West Virginia. The fee for all subsequent years for non-participating registered manufacturers is $5,000. A fee of $3,000 is required if an approved takeback or recycling program has been implemented in the prior year in West Virginia, and the fee for all subsequent years for participating manufacturers is $500. The proposed rule would also establish the Covered Electronic Device Grant Program, which would allow counties and municipalities to receive grants to stage electronic takeback events or establish long-term take back/recycling programs. Written comments were submitted by the Information Technology Industry Council (ITI), which represents manufacturers of computers, televisions, printers, and other electronic equipment, and two manufacturers, 3M Touch Systems, Inc. (3M) and Eastman Kodak Company (Kodak). 

 In response to a comment by ITI that the legislation did not make clear which manufacturers are supposed to pay registration fees to the state under the law, the WVDEP stated that the proposed rule specified that two primary criteria must be met before a manufacturer is required to register in West Virginia. Those criteria are: (1) the manufacturer must have manufactured an average of more than 1,000 CEDs per year in a three-year period immediately preceding the initial registration; and (2) the manufacturer desires to sell or lease CEDs in West Virginia. 

ITI also asserted that the legislation indicated that the legislature intended to include only CEDs from consumers and consequently only the manufacturers of devices sold to consumers. The WVDEP disagreed, explaining that manufacturers of CEDs ordinarily do not sell their products directly to the general public, but to distributors and retailers. The WVDEP further explained that as a result manufacturers could not control the ultimate destination of the CEDs manufactured. The WVDEP did agree, however, that there may be some confusion regarding the term “consumer” as it is applied in the statute with regard to the Covered Electronic Devices Takeback Program. Because the term “consumer” is used interchangeably with the term “person” throughout the statute, the WVDEP agreed to add a definition of “consumer” to the proposed legislative rule. The definition that the WVDEP agreed to add will provide that ,a consumer is “a natural person or resident, corporation, firm, partnership, agency, association, organization or society that resides in West Virginia and has legally purchased or is in legal possession of a CED.” 

ITI also requested clarification for the products covered by the “video display device” definition, asserting that the definition could include many devices other than computers, monitors, laptops, and televisions. The WVDEP responded that the rule defines a video display device as an electronic device with an output surface (a screen) that displays or is capable of displaying moving graphical images, regardless of the technology used to attain those images. The WVDEP explained that the definition is intended to accommodate future changes in technology and is not intended to be limited to a few specific products.

ITI along with 3M, a member company which manufactures touch screen monitors for business, industrial, medical, educational, and governmental usage, urged the WVDEP to clarify the exemption for “video display device that is part of a motor vehicle or that is contained within a household appliance or commercial, industrial or medical equipment” based on the design and intended use of the CED. Both ITI and 3M offered the following exemption language:

A covered electronic device that is functionally or physically a part of, or connected to, or integrated within a larger piece of equipment or system designed and intended for use in an industrial, governmental, commercial, research and development, or medical setting, including but not limited to diagnostic, monitoring, control or medical products (as defined under the Federal Food, Drug, and Cosmetic Act), or equipment used for security, sensing, monitoring, anti-terrorism, emergency services purposes or equipment designed and intended primarily for use by professional users.

 

The WVDEP declined to adopt the corrective language suggested by ITI and 3M. The WVDEP interprets the exemption in the definition of “covered electronic device” to be based on the physical characteristic of the CED, not the use of the CED. The WVDEP finds the words “contained within” in the statutory definition are sufficient to convey that the exemption applies only to those CEDs that are too bulky or cumbersome to be reasonably transported to a takeback center or mailed back to the manufacturer.

3M asked the WVDEP to add language to the proposal clarifying that the state website listing manufacturers authorized to sell or lease their products in West Virginia also reference the possibility that industrial/commercial equipments is exempt and therefore a manufacturer selling that equipment may not be listed. The WVDEP agreed to incorporate 3M’s suggestion and also stated that the website would provide that CED manufacturers that manufacture less than 1,000 units, on average, over a three-year period are exempt from the registration policy process. 

Finally, 3M requested that the WVDEP add a small volume exclusion to the proposed rule. To illustrate, 3M explained that a small volume exclusion would allow items such as specialty devices for the impaired to enable them to use computers or view screens on monitors. 3M suggested a graduated fee scale based on estimated market share, rather than the large initial fee, with no graduated fee scale, that WVDEP used for the proposal. 3M also suggested that the regulatory section on manufacturer registration be clarified to refer to 1,000 units sold in West Virginia. The WVDEP missed the point of 3M’s concerns and summarily responded that the statute and the proposed rule currently allow for a small volume exclusion, noting that the registration requirements do not apply to manufacturers that manufacture an average of less than 1,001 CEDs per year in a three year period immediately preceding the initial registration. 

In its comments, Kodak, which manufactures digital picture frames as well as cameras, printers, and other consumer equipment, requested clarification of the products covered by the “video display device” definition that is included within the regulatory definition of CED. While the primary function of the digital picture frames manufactured by Kodak is to display still photographic images, some of its devices have the capability to display video images. Kodak commented that the regulatory definition suggests any “video-enabled” product could also be considered a CED. Kodak maintained that such an interpretation would “broaden the scope of products beyond what other states are regulating as [CEDs]”. Kodak asserted that the Legislature intended “to cover those products that are most prevalent in the waste stream and are already covered by other state electronic recycling laws,” i.e., computers, monitors, and televisions. Disagreeing with Kodak’s view, the WVDEP stated that a digital picture frame meets the criteria of a CED if it has a screen greater than four inches, measured diagonally, and displays or is capable of displaying moving graphical images. The manufacturer of a digital picture frame meets the criteria of a CED and is subject to the registration requirements if the quantity threshold is satisfied and the product is sold in West Virginia. 

 

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, see here.

U.S. EPA Assistant Administrator Gina McCarthy Speaks Out

On November 5, 2009, Gina McCarthy, Assistant Administrator Office of Air and Radiation U.S. EPA, spoke out about U.S. EPA’s priorities for Ozone and other regional air pollutants at the fall meeting of the Ozone Transport Commission in Baltimore, Maryland. McCarthy attended along with several of her staff. She started her presentation by noting that we need to continue working together as a partnership to make air cleaner. McCarthy stated that her job is to think about how to move forward consistent with President Obama’s commitment to clean energy, reduction of greenhouse gases (“GHGs”), and climate change issues, regardless of whether legislation moves forward. She noted that the states must do the planning for attainment and that EPA has to help with implementation, all the while recognizing the resource constraints we are all under.  

McCarthy indicated that the Administrator is absolutely committed to environmental justice and will work to ensure that every community shares in the work load. Through her presentation, McCarthy described U.S. EPA’s status on the Clean Air Interstate Rule (“CAIR”) replacement, the maximum achievable control technology (“MACT”) standard for mercury, new rules for Industrial, Commercial and Institutional (“ICI”) boilers, and the regulation of GHGs. 

McCarthy said that U.S. EPA must replace CAIR, tackle mercury, tackle greenhouse gases, and noted that U.S. EPA is under an ambitious schedule to review all six NAAQS. With respect to ozone and particulate matter (“PM”), McCarthy said that we still have an incredible need to look at the public health implications of poor air quality. McCarthy declared people are still dying because of breathing poor quality air. According to McCarthy, PM and ozone (in that order) are the most significant challenges. U.S. EPA is currently reviewing the existing data. McCarthy declared, “We already know the science and now need to reconsider the standard.” 

With regard to the CAIR, McCarthy indicated the U.S. EPA will move forward with the CAIR replacement in March or April 2010. Both the modeling and the technical analysis are moving forward in an effort to meet the rapidly approaching deadline.  

In addition to CAIR replacement, U.S. EPA is working closely on a unit by unit electric generating unit (“EGU”) mercury (“Hg”) MACT standard. The MACT standard will be aligned with the CAIR actions. U.S. EPA understands it needs to be doing a multi-pollutant analysis in order to allow decisions to be made.  

Another area under consideration is ICI Boilers. U.S. EPA expects there will be a combined rule for all hazardous pollutants for ICI boilers. The proposal is expected in April 2010 with a final rule by December 2010. 

Currently, there are several GHG rules in play. McCarthy indicated that while the federal government was not previously moving on these, U.S. EPA appreciates the efforts the states have made on GHG regulation. U.S. EPA will continue to push GHG legislation. In the meantime, EPA has made the proposed endangerment finding GHG emissions from light duty vehicles may contribute to air pollution that may endanger public health or welfare - in April 2009 and will finalize it in the next few months. So far, U.S. EPA has received 380,000 comments on the endangerment finding. If the endangerment decision becomes “yes,” the light duty vehicle law will move forward in March 2010, which will mean GHGs will be regulated under the Clean Air Act (“CAA”). Such action will trigger CAA permitting requirements under both the Prevention of Significant Deterioration (PSD) and Operating Permit (Title V) programs for GHG emissions. This will be the first time GHGs would be subject to these CAA permitting programs. In order to ease into this regulation, U.S. EPA proposes the Proposed Rule: “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule” that will tailor the major source applicability thresholds for GHG emissions under the Prevention of Significant Deterioration (PSD) and Title V programs of the CAA and set a PSD significance level for GHG emissions. U.S. EPA thinks it is a common sense approach and is legally defensible. U.S. EPA wants to hear comments about the trigger emission level. McCarthy said that the Agency would not use all of its deadlines as an “excuse to cut off public comment and input.” 

McCarthy also noted that Janet McCabe is joining her team next week as her principle deputy. McCarthy wanted to have someone who is knowledgeable about implementation of the CAA on her team and McCabe is that person. McCarthy closed saying “If we can’t get the state/federal relationship working in this Administration, we might as well hang it up because, we understand what we’re asking states to do.” 

This article was co-authored by Laura G. Swingle and Skipp Kropp, Jackson Kelly PLLC. For more information on the authors see (Swingle) here and (Kropp) here.

Proposed Emissions Factors Program Improvements

On October 14, 2009 US EPA published an advanced notice of proposed rulemaking on Emissions Factors Program Improvements. This proposed rulemaking is a result of a stakeholder process on the EPA’s emission factors program.  

EPA is seeking to develop a self-sustaining emission factors program that procedures high quality, timely emissions factors, better indicates the precision and accuracy of emissions factors, encourages the appropriate used of emissions factors, and ultimately improves emissions quantification.  

An emissions factor is a representative value that attempts to relate the quantity of a pollutant released to the atmosphere with an activity associated with the release of that pollutant. Emission factors have long been a fundamental tool in developing national, regional, state, and local emission inventories for air quality management decisions and in developing emissions control strategies. More recently, emissions factors have been applied in determining site specific applicability and emissions limitations in operating permits by agencies, consultants and industry.  

The EPA approved emissions factors are contained in an online document called the “AP-42 Compliance of air Pollutant Emissions Factors.” The emissions factors were originally established only for use in estimating emissions for developing national emissions inventories.

As part of a reevaluation of the emissions factor program, EPA interviewed and surveyed various emissions factors users and held a series of workshops in 2003 and 2004 with stakeholders to solicit their input on what is needed to update and improve the emissions factor program. The stakeholders agreed that EPA needed to maintain the AP-42 factors information compilation and retrieval system. In addition, the stakeholders indicated that it takes EPA too long to develop emissions factors that data submitted for regulatory development have not been used to develop new emissions factors, and that EPA is not developing new emissions factors. The stakeholders said EPA should develop criteria to address the development and uses of emissions factors for purposes other than just emissions inventory development, such as for uses as screening tools for compliance determinations, applicability purposes, and preparing air program permit application. The stakeholders believed that EPA should be developing and updating emissions factors regularly.  

Overview of the Emissions Factors Improvement Program 

Based on the results of the emissions factors reevaluation process EPA has identified four focus areas for improvement:  

1.    Designing a process for developing and improving emissions factors to allow easier and more effective participation by interested parties. 

2.   Improving methods for compiling and providing emissions factors data and other pertinent information to users, including complete and easy access to all available test data.

3.   Updating existing emissions factors and developing more factors where gaps currently exist.

4.   Developing guidance on the application of EPA’s default emissions factor or the selection of a more appropriate emissions factor for specific applications, calculating emissions factors form available test data or other information, conducting emissions tests to facilitate the development of emissions factors, and evaluating and considering data quality.  

Emissions Factors Development Process and Tools 

   Currently the following steps are undertaken when emissions factors are developed:  

Step 1: Collect test and process data

Step 2: Evaluate the test data and documentation

Step 3: Assign data quality rating

Step 4: Group the emissions data by processes and operating parameters

Step 5: Develop candidate emissions factors

Step 6: Are there adverse comments from public review?

Step 7: Publish new or revised factors in AP-42 

EPA proposes to move from this subjective resource intensive system where EPA relies on a relatively open-ended set of criteria to make decisions such as the test data and factor quality ratings to one that is objective (more science based) and designed to reduce the variability associated with manual emissions factor development the new system will provide an objective evaluation scheme for grading the quality of each emissions test, as well.  

Under the proposed system, source test data would be compiled electronically via the Electric Reporting Tool (ERT) by the source submitting the data. The ERT provides a format and a process that: (1) Documents the key information and procedures required by the existing EPA Federal Test Methods; (2) facilitates coordination among the source, the test contractor, and the regulatory agency in planning and preparing for the emissions test; (3) provides for consistent criteria to characterize quantitatively the quality of the data collected during the emissions test; (4) standardizes the form and content of test reports; and (4) calculates the emissions factor, and exports the emissions factor, and exports the emissions factor and associated data to WebFIRE. 

Theoretically WebFIRE could be structured to calculate a new or revised emissions factor whenever a qualified test is submitted.   EPA understands that updating emissions factors very frequently may be disruptive to emissions factors users because it could create a rapidly moving target that could add significant uncertainty to users. EPA thinks a better approach would be to schedule periodic updates.  

This approach could still be problematic for sources with permit limits based on EPA emissions factors. Would an existing permit need to be modified each time a new emissions factors was changed? 

EPA is seeking comment on the following: 

·     Is it appropriate to amend the reporting provisions of the 40 CFR parts 60, 61, and 63 General Provisions to require electronic submittal of performance tests that are already required by standards in these parts?

·     Is it appropriate to use emissions factors for other purposes (i.e. permits, emission calculations)? Should there be any other requirements for these emission factors such as only using high rated emission factors for permitting?

·     Are third party reviews of performance tests needed and, if so, then how could we encourage third party reviews of test reports and what weight should we give reviews in assigning a quality rating?

·     Should EPA require electronic submittal of performance tests via the ERT or some similar electronic submittal software?

·     Would a different format for the ratings of test data be useful?

·     If needed, should additional information be required as part of ERT to enhance the emissions factors development process?

·     What tests should EPA use to develop the emissions factors and what criteria should we consider to select the performance tests?

·     At what frequency or schedule should emissions factors in WebFIRE be updated?

·     What steps could enhance public review of the emissions factors development process and outcome and contribute to the timely development of new and revised factors? 

Comments must be received on or before November 13, 2009. 

This article was excerpted from publically available information, and was authored by Joyce Gentry, Acacia Environmental Group LLC.  For more information on the author see here.

EPA to Reconsider GHG Reporting for Suppliers of Coal in 2010

On October 28, 2009, the EPA Clean Air Act Advisory Committee raised the possibility that coal mines which were excluded from the final greenhouse gas reporting rule will get a second look when the agency revisits the rule in early 2010.  EPA decided to exempt suppliers of coal from the reporting requirement based on opposition from commenting parties concerned  over the potential for duplicate reporting, given the fact that electric utilities and industrial plants, which are supplied the coal, are already required to report the GHG’s produced from the combustion of the supplied coal.  Although coal suppliers were (quite rationally) excluded from the reporting requirement, EPA is reconsidering the decision to exclude coal suppliers from the rule, citing its own 2006 estimates that suppliers of coal accounted for 29% of the total U.S. GHG emissions.  The current GHG reporting rule takes effect January 1, 2010.  EPA will revisit the rule in early 2010.

This article was authored by Chris M. Hunter, Jackson Kelly PLLC. For more information on the author see here.