RMB Consulting & Research, Inc. (RMB) specializes in providing consulting services to industrial clients and associated organizations. RMB's greatest asset is its technical consultants, which represent a wealth of experience in air pollution control and air pollution consulting that can be applied to meet your corporate environmental needs and regulatory challenges. Present clients include many individual electric utility companies, several major chemical and petroleum industry clients, the Electric Power Research Institute (EPRI) and the Utility Air Regulatory Group (UARG).
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Are you ready for MATS compliance? The MATS compliance and monitoring deadlines are rapidly approaching. With constantly evolving rule language and reporting requirements, how can an environmental professional know that they are ready to achieve, demonstrate, and report compliance status in the coming months? To help you assess your “MATS readiness,” RMB is conducting a one-day workshop in that will provide an overview of the monitoring and reporting requirements, will address often overlooked details, and will cover the many changes and technical corrections that have occurred since the final rule was published in 2012. The workshop will be held on June 2, 2015 in Richmond, Virginia in conjunction with the EPRI CEMS Users Group Meeting that starts the following day at the same location. The training topics will include:
On Friday, EPA published a proposed rulemaking that would require sources affected by many subparts under the Part 60 new source performance standards to begin reporting data electronically using CEDRI and the ERT. This rulemaking would affect many industries including waste combustors, cement plants, refineries, ore smelters, steel mills, fertilizer plants, paper mills, and many others including electric utilities. While EPA indicates that electronic reporting for Subparts D, Da, Db, and Dc would be addressed "under a separate and independent rulemaking," the proposed rule would require many of combustion turbines under Subparts GG and KKKK to start using CEDRI and the ERT. A copy of the proposed rule can be downloaded from the following link:
A copy the new final version of the transitional electronic reporting rule can be found in our FTP library.
The Administrator has signed the final version MATS rule revisions that will suspend the requirements to report data electronically using the ERT and/or CEDRI and instead allow sources to report the same type of information in PDF format using ECMPS. This rule was originally proposed as a direct final rule in November. While most comments favored of the rule, EPA did receive one adverse comment, which predicated the Agency's withdrawal of the original direct final rule and the promulgation of this new final version.
Although EPA discusses its response to the comments in some detail in the preamble to this new rule, the Agency generally found the adverse comment to be without substance. The new version of the rule mirrors the original proposed language with the exception of a minor addition stating that "each PDF version of a submitted report must include sufficient information to assess compliance and to demonstrate that the testing was done properly." As the preamble describes, these transitional reporting requirements are part of a broader effort to revise the reporting requirements to ultimately allow sources to report MATS data in a similar manner (and formats) to the way emissions data are reported under Part 75. Awaiting publication, the transitional reporting requirements will become effective immediately when it appears in the Federal Register.
A copy the new final version of the transitional electronic reporting rule can be found in our FTP library.
The proposed MATS "corrections and clarifications" that the Administrator signed late last year were finally published in the Federal Register today. While these proposed revisions are presented primarily as technical corrections, a number of the changes will have significant impact. The proposed changes include allowing 30- or 90-day mercury compliance averaging for most coal-fired sources, tightening the mercury CEMS RATA specifications, and revising to the recent additional reporting requirements that EPA imposed as part of its reconsideration of startup/shutdown issues. Comments on the proposed rule revisions will be due by April 3, 2015. A copy of the proposed MATS technical revisions can be found in our FTP library.
It is with much sorrow that I tell you that my business partner Russell Berry passed away on January 24, 2015. Russell joined RMB in 1997, although I have known him much longer. I worked with him and had fun with him for over 30 years, and it is difficult for me to put into words what a huge loss I am feeling. He was a leader within RMB, a wonderful friend, and will be greatly missed. We at RMB mourn the loss of our colleague and extend heartfelt sympathy to his wife Elena, their children Nick, Jamison and Olga, and his mother Ann. To Russell, my friend, I wish you eternal peace. -- Ralph L. Roberson
For more about the life and times of Russell Berry, please click on the following link: Russell Berry In Memoriam
On October 23, 2014, the U.S. Court of Appeals for the D.C. Circuit granted EPA’s motion to lift the stay on the Cross State Air Pollution Rule (CSAPR). On November 21, 2014, EPA published a ministerial rule which revises the dates in CSAPR to align them with the revised court-ordered schedule. EPA also published Notice of Data Availability (NODA) that aligns the final CSAPR default allowance allocation years with the court-ordered schedule. CSAPR is scheduled to go into effect January 1, 2015.
A copy of the CSAPR ministerial rule can be found in our FTP library.
EPA’s final Mercury and Air Toxics (MATS) rule was published in the Federal Register on February 16, 2012. On April 15, 2014, the D.C. Circuit Court of Appeals upheld EPA's MATS rule. However, Judge Kavanaugh wrote an interesting dissenting opinion in which he explained why he believed EPA erred in failing to consider cost as an integral part of the Agency’s “appropriate” decision.
On November 25, 2014, the U. S. Supreme Court granted a writ of certiorari to a group of petitioners regarding the MATS rule. The writ of certiorari granted by the Supreme Court is limited to the following specific question: did EPA unreasonably refuse to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.
EPA released final revisions to the MATS Rule reflecting the Agency's reconsideration of startup and shutdown related issues. The revisions create a new optional definition of startup that would allow sources to exclude data for compliance purposes for a period of four hours after producing electricity or steam for commercial purposes. However, the rule includes many new requirements for sources that choose to use the new definition including the requirement to maximize the use of "clean fuels" during the startup period. New parametric monitoring and reporting requirements are imposed on sources that choose to demonstrate PM compliance using quarterly testing. The revisions also institute two approaches for monitoring startup and shutdown emissions using sorbent traps.
The Agency also released direct final revisions that would create interim reporting requirements as new electronic formats developed to replace the current ERT and CEDRI requirements. The direct final rule and parallel proposal are consistent with the approach that the Agency outlined at the recent stakeholders meeting in DC. Once the revisions becomes effective, the requirement to report data electronically using the ERT and/or CEDRI would be suspended. Instead, the same type of information would simply be reported in PDF format while EPA develops new alternative XML reporting formats to replace the ERT and CEDRI. Unless EPA receives adverse comments, the transitional reporting requirements will become effective 45 days after published in the Federal Register.
A copies of the startup/shutdown reconsideration revisions and the transitional electronic reporting rule can be found in our FTP library.
RMB's Spring 2015 CEMS Training Course has been scheduled for April 7-9, 2015. RMB is now accepting registration/reservations for our Spring 2015 CEMS Training Course. Visit our Training page for more information about the location and topics covered by the course. For a direct link to brochure and registration, click here: RMB CEMS Spring 2015 Training. Please contact Stacey Pierce firstname.lastname@example.org or Robert Bivens email@example.com for additional details.
On June 18, 2014, EPA's “Clean Power Plan,” which represents the much anticipated CO2 emission standards and guidelines for existing, modified and reconstructed power plants, was published in the Federal Register. A copy of the final Proposed regulations from the Federal Register can be found in our FTP library.
On June 2, 2014, EPA released the “Clean Power Plan,” which represents the much anticipated CO2 emission guidelines for existing power plants. At the same time, EPA also released proposed CO2 requirements for modified and reconstructed units. Both rules follow the proposed rule for new units that was published in the Federal Register on January 8, 2014.
Clean Power Plan for Existing Units
The Clean Power Plan represents the first-ever CO2 emissions standards for existing units in the power generation industry. Although the proposed rule primarily affects reductions in coal-fired emissions and generating capacity, the implementation of the rule will significantly impact the entire industry (i.e. natural gas, renewables, nuclear).
The rule includes two sets of output-based CO2 standards (lb-CO2/MWh net) for each state, representing a state-wide average of all power generating sources. The first is an interim set of standards for the period 2020 – 2029; compliance will be based on the 10-year period 2020 – 2029. The second set of emission standards represents long-term reduction goals (beyond 2030). EPA estimates that the proposed rule will reduce carbon emissions from the power generation sector in 2030 by 30% from 2005 levels.
The two proposals were developed under the authority of Section 111(d) of the Clean Air Act (CAA). Accordingly, all regulations that flow from EPA’s proposed guidelines must be implemented at the state level based on EPA-approved state implementation plans (SIPs). State must submit implementation plans no later than April 16, 2016 although this deadline may be extended up to three years if the implementation plan involves a multi-state program. Section 111(d) is an infrequently used section of the CAA. As described in more detail below, EPA’s compliance approach extends well beyond the power plant source category. This unprecedented use of Section 111(d) authority may well be challenged in court by every affected facility in the U.S.
The proposed target CO2 emission rates are based on the 2012 baseline emissions rates which are then reduced using a combination of strategies EPA refers to as “building blocks”. These building blocks include energy efficient improvements for existing coal-fired units (Block 1), shifting capacity from coal-fired units to existing natural gas combined cycle units (NGCC) based on available capacity (Block 2), increasing renewable generation sources and delaying retirement of existing nuclear sources (Block 3) and demand size reduction measures (Block 4). EPA applies the net effect of each building block to the 2012 emissions rate and generating data to determine a new weighted average representing the emissions target for each state. EPA’s assumptions used for the renewal capacity shifting (Block 3) and implementation of demand-side reductions (Block 4) appear incredibly optimistic. Although the assumptions are consistent between states for each building block, the effect on the target emission rate vary according to the distribution of generation and the other state-specific factors.
The proposed rule includes separate numeric CO2 emission standards for modified and reconstructed fossil-fuel fired electric utility steam generating units (including integrated gasification combined cycle (IGCC) units) and natural gas-fired combustion turbines.
For modified steam generating units, EPA is proposing two alternative standards. The first alternative is based on unit-specific numeric output-based emission standard ( lb-CO2/MW net) that is two percent lower than the unit’s best demonstrated annual performance during the years from 2002 to the year the modification occurs, which EPA claims can be achieved through a combination of best operating practices and equipment upgrades. These emissions limits would be limited 1,900 lb CO2/MWh net for units with a heat input rating greater than mmBtu/hr and 2,100 lb CO2/MWh net for units with a heat input rating of 2,000 mmBtu/hr or less. The second alternative is based on the timing of the modification. Sources that are modified prior to the effective date of the SIP would follow the procedure for establishing a unit-specific standard outlined in the first alternative. Sources that are modified after this date would be subject to a unit-specific standard determined by the delegated authority.
For modified natural-gas fired combustion turbines, the proposed standard is based on natural gas combined cycle (NGCC) technology. The emission limits proposed for these sources are 1,000 lb CO2/MWh gross for facilities with heat input ratings greater than 850 mmBtu/hr, and 1,100 lb CO2/MWh gross for facilities with heat input ratings of 850 mmBtu/hr or less. EPA is also proposing an optional unit-specific standard based on energy efficiency improvements.
For reconstructed units, the proposed standards are based on the most efficient generating technology for each type of unit. For fossil fuel-fired boilers and IGCC units the emissions standard is 1,900 lb CO2/MWh net for units with a heat input rating greater than 2,000 mmBtu/hr and 2,100 lb CO2/MWh net for units with a heat input rating that is less than or equal to 2,000 mmBtu/hr. Reconstructed natural gas-fired stationary combustion turbines with a heat input rating greater than 850 mmBtu/hr would be required to meet a standard of 1,000 lb CO2/MWh gross. EPA is also taking comments on a range of potential emissions standards and whether the standards should be based on a gross or net output.
Pursuant to President Obama’s June 25, 2013 Memorandum, EPA is directed to finalize these proposed rules by June 1, 2015. The comment period will be at least 120 days, and will begin following publication in the Federal Register. EPA will hold four public hearings during the week of July 28 in Denver, Atlanta, Washington D.C., and Pittsburgh. Additional information can be found in our FTP library and the EPA's website.
RMB has added the Summary of Hg Monitoring Experiences and All Carbon All the Time - CO2 Regulatory and Measurement Bias Overview slides from the presentations that were recently given at the EPRI CEMS User Group Meeting under Papers and Presentations.
On May 16, 2014, EPA published Procedure 3, Quality Assurance Requirements for Continuous Opacity Monitoring Systems at Stationary Sources, as a final rule in the Federal Register. Procedure 3 establishes the ongoing QA/QC requirements for COMS. Affected sources must comply with Procedure 3 no later than November 12, 2014. Procedure 3 requires daily calibration drift tests; quarterly calibration error tests, optical alignment checks and zero compensation checks; and annual zero alignment audits. Procedure 3 also requires affected sources to develop written QA/QC procedures for conducting the required tests. Procedure 3 allows the use of a temporary COMS to replace the primary analyzer during repairs. Section 10.5 also requires affected sources to develop a corrective action program that addresses what diagnostic tests must be performed after certain preventive and corrective maintenance procedures to ensure that the COMS is collecting valid data. Along these lines, the final Procedure 3 excludes Table 17-1 from the proposed Procedure 3 (published in the Federal Register on February 14, 2012) which was more prescriptive in defining the required diagnostic and/or recertification tests. A copy of the final Procedure 3 can be found in our FTP library.
On May 14, 2014, EPA published proposed Performance Specification 18 (PS-18) and proposed Procedure 6 (Appendix F, 40 CFR Part 60) in the Federal Register. This new performance specification details the test procedures required to certify gaseous hydrogen chloride (HCl) continuous emissions monitoring systems (CEMS) at stationary sources. Procedure 6 specifies the proposed ongoing QA/QC requirements for HCl CEMS. Comments on the proposed rules must be received on or before June 13, 2014. A copy of the newly proposed PS-18 and Procedure 6 can be found in our FTP library.
As described in a recent EPA letter, the Agency is interested in working with the industry to pursue changes to the MATS electronic reporting requirements. The rule currently requires a complicated mix of reporting. Affected utilities must report certain data through the Emissions Collection and Monitoring Plan System (ECMPS) but also report data--sometimes redundantly--using the Electronic Reporting Tool (ERT) and/or the Compliance and Emissions Data Reporting Interface (CEDRI). While sources would still need to report information to demonstrate compliance, significant improvements could be made to reduce the burden of the reporting.
Based on our discussions with the Agency, RMB is forming an ad hoc workgroup to help utilities work with the EPA to improve, streamline and simplify the electronic reporting requirements under the MATS Rule. As described more fully in our MATS Reporting Workgroup Proposal, we intend develop alternative formats and reporting instructions following collaborative approach with the cooperation of both industry and EPA. Utilities need detailed reporting instructions/formats to develop the tools and software that will allow them to demonstrate compliance and perform required reporting and recordkeeping tasks. In contrast to entering data via the ERT or CEDRI, alternative formats could allow sources to automate the data collection more easily and to handle the emissions reporting more consistently. By developing the format and reporting instructions first, the industry and EPA can avoid ambiguity and allow the information to be reported in an efficient way. To facilitate this effort, EPRI will be holding a webinar on April 30, which will provide a forum for both EPA and RMB to discuss this effort and possible rule revisions. Details about the webinar can be found here. Please contact Steve Norfleet at (919) 791-3123 or firstname.lastname@example.org if you would like more information on how to support this effort and join the workgroup.
On April 15, 2014, the D.C. Circuit Court of Appeals upheld EPA's Mercury and Air Toxics (MATS) rule. The Court consolidated approximately 30 judicial petitions and captioned the case White Stallion Energy Center v. Environmental Protection Agency. The Court basically dismissed all of the judicial petitions (industry’s as well as the environmental groups’) and affirmed the MATS Rule.
The most fundamental question before the Court was whether EPA reasonably established that it was appropriate and necessary to regulate utilities under Section 112 of the Clean Air Act. However, the case also included a variety of other challenges to the rule such as:
For all issues addressed, the Court showed significant deference to EPA and held that the Agency's positions or decisions were reasonably (or at least permissibly) established.
Judge Kavanaugh wrote an interesting dissenting opinion in which he explained why he believed EPA erred in failing to consider cost as an integral part of the Agency’s “appropriate” decision. Remember that § 112(n)(1)(A) of the Clean Air Act directs EPA to regulate electric utility generating units under this section (i.e., § 112) if the Administrator finds such regulation is “appropriate and necessary.” In sum, Judge Kavanaugh questioned how any government agency could ever decide a regulation was appropriate without understanding how much the rule would cost to implement.
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On February 27, 2014, EPA issued a Final Rule including revisions to Test Methods and Testing Regulations. EPA’s action promulgates technical and editorial corrections for source testing and includes some new alternatives in selected test methods found in Part 51, Part 60 Appendix A, and Part 63 Appendix A. The action also updates certain performance specifications found in Part 60, Appendix B and quality assurance procedures found in Part 60, Appendix F.
For example, Procedure 2, Quality Assurance Requirements for Particulate Matter Continuous Emission Monitoring Systems at Stationary Sources, modified the daily calibration drift test calculations so that the upscale and zero drift equations include the “FS – Full Scale Value” of the instrument in the denominator versus “Ru – Upscale Check Value.” This revision now makes the PM CEMS specifications consistent with other monitor calibration error criteria which is calculated as a percent of span. For sources currently operating PM CEMS, this Procedure 2 revision will, in most cases, necessitate a change to the data acquisition and handling system (DAHS) programming to ensure ongoing compliance. The sample volume audit calculation for applicable extractive PM CEMS was also updated. In addition, alternative breakthrough criteria were added to the mercury monitoring performance specification 12-B (i.e. the sorbent trap monitoring method, PS-12B) as well as changes to calibration procedures in Method 30B.
A copy of the promulgated test method revisions is available for download in our FTP library.
In late December 2013, EPA published draft revisions to the Emissions Collection and Monitoring Plan System (ECMPS) Monitoring Plan and QA/Certification Reporting Instructions. EPA also published draft ECMPS Emissions Reporting Instructions in Janary 2014. These revisions allow sources affected by the Utility MATS Rule to report Monitoring Plan, QA/Certification and emissions data for Hg CEMS, HCl CEMS and Hg sorbent trap systems. Currently, ECMPS does not include reporting procedures for PM CEMS. A copy of the draft ECMPS reporting instructions are available in our FTP library.
For many existing affected units, compliance with Subpart UUUUU to 40 CFR Part 63 (typically referred to as the Utility MATS Rule) rule begins on April 16, 2015, although the rule does include a provision for a one-year extension for sources that need more time to install emissions controls. While the units must be able to meet the applicable MATS emissions limits by April 16, 2015 (or April 16, 2016 if an extension applies), the rule allows sources to conduct the required compliance tests within 180 calendar days after the compliance date. A copy of the Utility MATS Rule is located in our FTP library.
RMB has provided regulatory and continuous emission monitoring system (CEMS) consulting services to electric utilities and industrial sources for over twenty years. Since the Utility MATS Rule was initially proposed, RMB assisted UARG in preparing comments on various technical issues with the rule and has helped numerous utilities to develop monitoring strategies and test programs to assess options for complying with the rule. With respect to the rule’s monitoring options, RMB has provided support to many sources using particulate matter (PM) CEMS, mercury (Hg) CEMS and Hg sorbent trap systems. RMB has managed several EPRI field demonstration projects for PM and Hg CEMS. Since 2013, RMB has also managed EPRI’s hydrogen chloride (HCl) CEMS field demonstration project. Click here for a copy of RMB’s recent Utility MATS Rule newsletter. Click the following link for a list of services RMB provides to assist with all aspects of MATS compliance: RMB MATS Services. Please feel free to contact one of RMB’s staff to discuss our services in more detail.
The MATS rule includes a provision that exempts sources with very low Hg emissions from the requirement of continuously monitoring vapor phase Hg emissions (i.e., no Hg CEMS or sorbent trap monitoring requirements. This provision is known as "LEE" (i.e., Low Emitting EGU) status. For Hg, qualifying for LEE status must be done each year and requires thirty (30) boiler operating days of Hg data collected using EPA Reference Method 30B. To qualify, the test data must demonstrate that the emissions are either less than 10% of the applicable emissions limit or that the maximum potential emissions of Hg are less than 29 lbs/yr. LEE Qualification testing can be performed up to 1 year prior to the MATS compliance date. As a result, Utilities that believe they can meet the requirements of this provision may perform the required testing starting this April!
After years of draft versions, EPA has finally released a "final" version of the “Part 75 Emissions Monitoring Policy Manual” that incorporates changes prompted by the January 24, 2008, March 28, 2011, and August 12, 2011 amendments to 40 CFR Part 75 and the conversion of the CAMD data systems to ECMPS. The new 2013 final revisions replace EPA's earlier October 28, 2003 version of the policy manual. A copy of the new version of the policy manual can be found in our FTP library.
On November 30, 2012, EPA published a Reconsideration Notice in the Federal Register, proposing to revise certain new source emission limits that are contained in the Mercury and Air Toxics Standards (MATS) rule. EPA proposed to revise the filterable PM limit from 7.0E-3 to 9.0E-2 lb/MWh; the mercury limit from 2.0E-4 to 3.0E-3 lb/GWh; and the HCl limit from 4.0E-4 to 2.0E-2 lb/MWh. On March 28, 2013, EPA Acting Administrator, Bob Perciasepe, signed a rule finalizing the new-unit emission limits identical to the values contained in the Agency’s proposal. According to EPA’s Fact Sheet, new units “will use the same types of state of the art control technologies to meet these standards as they would have used under the previously finalized standards.” RMB generally concurs with the following EPA statement: “We project that these updates will result in no significant change in costs, emission reductions or health benefits from MATS.”
In the final reconsideration rule, EPA did not take final action on a number of start-up/shutdown technical issues. EPA acknowledged receiving considerable input regarding the start-up and shutdown provisions in the MATS rule and decided to take additional time to consider and evaluate the comments and data received.
On January 31, the final major source IB-MACT rule was published in the Federal Register, immediately followed by the publication of the final area source rule on February 1, 2013. These actions reset the compliance date for existing major sources and clarified the deadline for those sources subject to initial boiler tune-ups under the area source rule. The compliance dates for the major source rule are January 31, 2016, for existing sources and, January 31, 2013, or upon startup, whichever is later, for new sources. New major sources are defined as sources that began operation on or after June 4, 2010.
The final area source rule revises the compliance date for existing boilers subject to a tune-up from March 21, 2012, to March 21, 2014. Note that the compliance dates for existing sources remain the same. The compliance date for existing sources is March 21, 2014. The compliance date for new area sources that began operations on or before May 20, 2011 is May 20, 2011. For new sources that start up after May 20, 2011, the compliance date is the date of startup. New area sources are defined as sources that began operation after June 4, 2010.
The deadlines for Initial Notification, which provides EPA or the delegated state agency notice that a source is subject to a particular standard, have also been revised. The deadline for major sources is May 31, 2013 and for area sources is January 20, 2014. Any source that that is affected by these rules and seeks to qualify one or more units under the area source rule should complete an area source determination as soon as possible in order to meet the initial notification deadline for major sources, if necessary. Under EPA’s “once in, always in” policy, once a source is designated as a major source it must remain subject to major source requirements. Copies of the rulemaking can be found in our FTP library.
On December 20, 2012, EPA finalized revisions to both the major source and area source IB-MACT Rules, the CISWI Rule, and the Non-Hazardous Secondary Materials (NHSM) Rule. EPA had proposed reconsideration of a number of issues in December 2011 based on extensive petitions received after the final rules were issued earlier that year. The final rules incorporate many of these proposed revisions including some additional revisions not included in the proposals.
For sources under the major source IB-MACT Rule, most existing coal- and biomass-fired units will now be subject to less stringent emissions standards. The final rule replaces the dioxin/furan emission limit with a work practice standard based on a boiler tune-up. The rule also includes two carbon monoxide (CO) emission standards for each boiler and fuel type combination including one based on periodic reference method testing and another based on continuous emissions monitoring. The continuous monitoring standard is now based on a 10-day or 30-day rolling average depending on the subcategory. In most cases these revised limits are more consistent and represent an achievable level of emissions for many units. EPA also modified the emissions standards for PM to include separate standards for different biomass fuels, a single PM standard for all solid fossil fuels and an alternative limit for total selected metals (TSM). The hydrogen chloride (HCl) standard remains unchanged in the final rule and, although it represents an achievable level of emissions for many biomass-fired units, most coal units and some biomass units will require sorbent injection in order to comply. Other changes include revised output-based standards for fuel-based pollutants, the elimination of continuous PM monitoring for biomass units, a revised definition of limited use boilers based on capacity factor, and reduced tune-up frequencies for many subcategories.
Perhaps the most significant revision is the change in the compliance dates for new and existing units. EPA also revised the definition of a new unit to include any new or reconstructed source that commenced construction or reconstruction prior to June 10, 2010. For existing units, the compliance date has been reset to three years from the date of publication of the final rule in the Federal Register. The compliance date for new units is the publication date or the date of unit startup, whichever is later. The final rule will become effective 60 days following publication in the Federal Register. Copies of the rulemaking can be found in our FTP library.
Following publication of the rule EPA refers to as the Mercury and Air Toxics Standards (MATS) on February 16, 2012, the Agency received a number of petitions for reconsideration pursuant to § 307(d)(7)(B) of the Clean Air Act. One of the petitions was filed by a group of utility developers, all of whom are proposing to construct new electric generating units (EGUs) that are subject to the new-unit emission limits set forth in the MATS rule. The petitioners argued that EPA’s new-unit emission limits were flawed because of measurement issues with the mercury data and because the Agency failed to use all of the available data in setting the filterable particulate matter (PM) and HCl emission limits.
On July 20, 2012, EPA signed a letter, stating the Agency intended to grant the petitions for reconsideration on certain issues related to the emission standards set for new EGUs. EPA formally stayed the new unit emission limits in a Federal Register notice published on August 2, 2012. On November 16, 2012, EPA signed a Reconsideration Notice, proposing to revise certain new source emission limits that are contained in the MATS rule. EPA proposes to revise the filterable PM limit from 7.0E-3 to 9.0E-2 lb/MWh; the mercury limit from 2.0E-4 to 3.0E-3 lb/GWh; and the HCl limit from 4.0E-4 to 2.0E-2 lb/MWh. While the numerical increases may appear rather large, the proposed new-unit emission limits remain quite stringent, and all will require the installation of a full suite of state-of-the-art control technology in order to comply with these new-unit emission limits. RMB concurs with the following EPA statement in its notice, “we expect that source owners and operators will install and operate the same or similar control technologies to meet the proposed revised standards in this notice as they would have chosen to comply with the standards in the February 2012 final rule.”
The deadline for submitting Initial Notification for existing sources (initial startup date prior to April 16, 2012) subject to MATS is August 14, 2012. Initial Notification is a requirement in the Part 63 General Provisions (§63.9(b)) and specifies that all existing sources subject to a new MACT standard must notify the Administrator and delegated authority that they are subject to the new standard within 120 calendar days after the source becomes subject to the standard. Affected sources must provide the following information in the Initial Notification:
EPA has provided an example Initial Notification Report, which is available in our FTP library. The form also contains additional information on where to submit the report.
On July 20, 2012, EPA issued a letter stating that the Agency intends to reconsider portions of the Mercury and Air Toxics Rule (MATS), also known as the “EGU MACT Rule” for new units. EPA’s action is in response to several administrative petitions received pertaining to the emission standards for new units. The letter identifies mercury measurement issues and computational issues associated with the dataset used to establish the hydrochloric acid (HCl) and filterable particulate matter (FPM) emission standards. EPA plans to expedite the reconsideration with a final rule expected in March, 2013. EPA also indicated that it will stay the standards for new units for three months. An official notice is expected to be published shortly in the Federal Register. This latest action does not affect the standards or compliance dates for existing units. Note, however, the EPA letter is silent with respect to a host of other reconsiderations topics relevant to existing units. A copy of the letter can be found in our FTP library.
On July 18, 2012, EPA issued a “No Action Assurance” letter delaying another of the compliance deadlines in the Area Source IB MACT Rule. The rule requires that sources submit a Notification of Compliance Status regarding the initial tune-up no later than 120 days after the compliance date of March 21, 2012, which suggests a deadline of July 19, 2012. In the latest action, EPA is extending this deadline until December 31, 2012 or until the rule is finalized. Since a finalized rule has not yet been issued, this action circumvents potential compliance issues for affected area source units. Earlier this year, EPA issued a No Action Assurance letter that delayed the deadline for conducting the initial tune-up until October 1, 2012 although EPA did not also extend the deadline for the Notification of Compliance Status at that time.
EPA’s latest action highlights the recent speculation on the release date of the final reconsidered IB-MACT rules. The final rules were submitted to OMB on May 17, 2012. The end of the 90-day OMB review period (August 15, 2012) is quickly approaching. If OMB seeks to extend the review period in the next few weeks then we can speculate this may be an early indicator that the final rules could be delayed until after the election.
On June 29, 2012, on the heels of the recent DC Circuit Court decision that reaffirmed the Greenhouse Gas (GHG) Tailoring Rule, EPA finalized additional regulations to continue phasing in GHG permitting requirements under the Prevention of Significant Deterioration (PSD) and Title V programs. The latest rule, “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule Step 3 and GHG Plant-wide Applicability Limits” (a.k.a. the “Step 3” Rule), leaves the current PSD and Title V applicability thresholds established under the Tailoring Rule intact, thus maintaining the status quo for GHG permitting applicability. The rule also provides guidelines for developing plant-wide applicability limits (PALs) for GHG emissions.
Under the Tailoring Rule (2010), EPA requires major sources of GHG emissions to obtain a PSD or Title V permit using a “phased” approach. PSD applicability in the first phase (“Step 1”) applies to unit modifications that result in a net GHG emissions increase of 75,000 tpy CO2e if the project also significantly increases emissions of at least one non-GHG pollutant. Under Step 1, which took effect January 2, 2011, Title V applicability applies only to those existing sources with a Title V permit. Under the second phase (“Step 2”), which took effect on July 1, 2011, new sources as well as existing sources not already subject to the Title V program that emit, or have the potential to emit at least 100,000 tpy CO2e (“major source”) will become subject to the PSD and Title V requirements. In addition, major sources that conduct a modification with a net GHG emissions increase of at least 75,000 tpy CO2e will also be subject to PSD requirements. In the third phase (“Step 3”) or the original rule, EPA committed to an evaluation of whether expansion of PSD and Title V applicability is warranted for smaller sources. The current action is a direct result of this commitment. In the “Step 3” rule, EPA concludes that further lowering of the PSD/Title V applicability thresholds is not warranted at this time because permitting agencies have not had sufficient time to implement the existing GHG requirements and increasing the number of affected facilities will only reduce the efficiency of permit implementation.
In this final rule, EPA is also updating the requirements for establishing PALs for GHG emissions. A ‘PAL’ is a facility-wide emission limit for a pollutant that enables the facility to avoid the New Source Review (NSR) permitting process as long as emissions are maintained below the PAL. The final rule allows PALs to be established on an individual mass basis (tons per year) or in terms of CO2e (tons per year) for a CO2e emissions limitation. The rule is allowing sources with GHG emissions above 100,000 tpy CO2e that are also a minor source of other regulated pollutants to apply for a GHG PAL and retain minor source status. A copy of the final rule is available in our FTP library.
On June 26th, the DC Circuit Court settled a series of lawsuits against EPA, essentially supporting some of EPA’s recent greenhouse gas (GHG) regulations. The plaintiffs, including various state agencies and environmental and industrial groups, filed petitions for review of the recent EPA actions, including the GHG Endangerment Finding, the Tailpipe Rule and the Timing and Tailoring Rules. Although not involved in this case, the court decision also reaffirms EPA’s recent GHG regulations under the New Source Performance Standards.
Central to this decision was EPA’s Endangerment Finding (2009), which found that CO 2 and other GHGs were considered an endangerment to public health. Although the Endangerment Finding was a consequence of the 2008 Supreme Court decision regarding legality of GHG regulation for motor vehicles, it essentially clarified the definition of an “air pollutant” under the CAA and established the basis for GHG regulations for stationary sources under the Prevention of Significant Deterioration (PSD) and the Title V permitting programs. The first of these regulations, known as the “Timing Rule” clarified that major sources of GHGs would be subject to PSD and Title V requirements beginning on January 2, 2011. The second of these regulations, known as the “Tailoring Rule” limited the initial scope of the regulations to the larger emitters with the intent of reducing the permitting burden.
In their petitions, state and industry petitioners rejected the Endangerment Finding, citing several issues such as inadequate supporting data, failure to quantify public health risks, and a fundamental misinterpretation of the CAA §202(a)(1), which provides the statutory link between GHG regulation and the Endangerment Finding. In the ruling, the DC Circuit Court rejected all of these arguments and found that the Endangerment Finding was wholly consistent with the requirements of the 2008 Supreme Court directive and CAA. On the key issue of the supporting scientific data, the Court rejected industry arguments that there is too much uncertainty in the correlations between GHG emissions and indicators of global climate change to support GHG regulation. Instead, the Court found that such uncertainty is overruled by the need to protect public health, particularly if the supporting evidence is “difficult to come by, uncertain, or conflicting because it is on the frontiers of scientific knowledge.”
The Court also agreed with EPA’s interpretation of the PSD and Title V permitting trigger. Following the Endangerment Finding, EPA issued the “Tailpipe Rule”, which set first-ever emissions standards for cars and trucks. Because this action caused GHGs to be considered a “regulated pollutant” under the CAA, EPA interpreted this to trigger GHG permitting actions for stationary sources under the PSD and Title V permitting programs since these programs also rely on the same statutory definition of an “air pollutant”.
Finally, the Court dismissed all challenges to the Tailoring Rule, which clarifies the statutory threshold for GHG permitting actions, on the basis of the legal standing of the petitions without further consideration of the merits of the case. The Court stated that petitioners did not adequately demonstrate that they would have been harmed by the rule and, therefore, could not challenge the constitutionality of the rule.
The Court’s ruling is a significant blow to those attempts to undercut the foundation of existing and future GHG regulations. Petitioners will likely take the case to the Supreme seek or request to have the case heard en banc from the full panel of DC Circuit Court judges. However, a rehearing is unlikely given the unanimous ruling. Without further action, this decision suggests that the future of GHG regulations will ultimately be determined through litigation on rule-by-rule basis. A copy of the ruling can be found in our FTP library.
Undoubtedly a prodigious occurrence – EPA’s controversial proposed new source performance standards (NSPS) for greenhouse gas (GHG) emissions for electric generating units was published in the Federal Register on Friday, April 13th. The proposed rule would establish a CO2 emission limit of 1,000 lb/MWh based on a rolling 12-month average. Typically, NSPS applies to sources that commence construction after the date the rule is proposed. However, in ensuring that the proposed rule contained something to offend everyone, EPA conjured up a new twist to the “applicability date” of the proposed NSPS. In a move that surely has the environmental groups beside themselves, EPA has exempted from NSPS requirements a newly defined group of sources – “transitional sources.” According to the proposed rule, a “transitional source” is (1) an electric utility generating unit that (2) has received a complete permit that meets the requirements of the Prevention of Significant Deterioration Program and (3) commences construction prior to April 13, 2013. On the other hand, the electric utility industry is absolutely apoplectic over EPA’s combining of fossil-fuel-fired steam generating (Subpart Da) units with stationary combustion turbines (Subpart KKKK unit). Of course, this is the only pretense the Agency can offer with respect to the proposed CO2 limit being “adequately demonstrated.” It’s a shame that all parties will have to wait a year or so until EPA finalizes the rule before litigation can begin!
A copy of the proposed rulemaking as published in the Federal Register can be found in our FTP library.
Last week, the EPA Administrator signed a final rule addressing various technical corrections to the EGU MACT rule (which EPA has dubbed the Mercury and Air Toxics Standards "MATS" rule) that was originally published in the Federal Register on February 16, 2012. The changes generally only correct typographical errors and acknowledge some errors in the preamble. A copy of the signed technical corrections can be found in our FTP library.
On February 14, 2012, EPA published Procedure 3 in the Federal Register both as a direct final rule and parallel proposed rule. Procedure 3 is intended to define ongoing QA/QC for continuous opacity monitoring systems (COMS) that are used for compliance. Comments on the proposed procedure are due by March 15, 2012. This rulemaking effort has caught many off guard. Even though the Agency first proposed QA/QC for COMS twenty years ago in 1992, the revised proposal that it subsequently published in 2003 languished. EPA never finalized that proposal after receiving comments. Now nine years later, EPA is suggesting the potential of a direct final rule that would become would effective on April 16, 2012 if no adverse comments are received.
In addition to the daily calibration requirements, the Procedure 3 proposal includes quarterly optical alignment checks, filter audit checks and zero compensation assessments as well as annual zero alignment checks. These proposed core QA/QC specifications may, in general, be reasonable but there are a number of details the proposal, such as the 95% data capture requirement that that pose problems and are inappropriate for such a procedure. There are still references to Performance Specification 1 that could be problematic for COMS installed prior to 2001 as well concerns that the applicability language may not be specific enough keep sources with blanket references to Appendix F in their permits or state regulations from being required to comply with Procedure 3.
A copy of the Procedure 3 proposal can be found in our FTP library.
On February 16, 2012, EPA’s final rule -- National Emission Standards for Hazardous Air Pollutants (NESHAP) from Coal- and Oil-fired Electric Utility Steam Generating Units (“EGU MACT”) was published in the Federal Register. Within the same volume, EPA also issued its final rule on revisions to the New Source Performance Standards (NSPS) for Fossil-Fuel-Fired Electric Utility Steam Generating Units (NSPS Subpart Da), Industrial, Commercial, and Institutional Steam Generating Units (NSPS Subpart Db), and Small Industrial, Commercial, and Institutional Steam Generating Units (NSPS Subpart Dc).
While RMB has discovered no discernible differences between the document Administrator Jackson signed on or about December 16, 2011 and the February 16th version appearing in the Federal Register, the significance of the publication date is that the “regulatory clock” has now begun to tick. For example, the effective date of the EGU MACT rule is 60 days from publication or April 16, 2012. If an affected unit is unable to obtain any compliance extensions, then the 3-year compliance deadline is April 16, 2015. Also, Section 307(b)(1) of the Clean Air Act states that any petitions seeking either administrative or judicial review of a final EPA rule must be filed with 60 days after the rule is published in Federal Register.
A copy of the final rulemaking as published in the Federal Register can be found in our FTP library.
On December 30, 2011, the DC Circuit Court of Appeals granted a motion to stay EPA’s Cross-State Air Pollution Rule (CSAPR). The court’s “last minute” order stops the Agency from implementing the rule just days before it was set to take effect on January 1, 2012. The brief two-page order does not pose an opinion on the merits of the rule but instead holds that the “petitioners have satisfied the standards required for a stay pending court review.”While the state of Texas has been the most vocal opponent, CSAPR has been legally challenged by several states (Alabama, Florida, Georgia, Indiana, Kansas, Louisiana, Michigan, Mississippi, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Virginia and Wisconsin) as well as private companies in over forty different federal cases, which the court has consolidated under this action. The court’s order stays any action on CSAPR until the resolution of the case and suggests a potential April 2012 hearing. In the interim, the ruling requires EPA to continue to administer the Clean Air Interstate Rule.
On Wednesday, EPA released the final National Emission Standards for Hazardous Air Pollutants (NESHAP) from Coal- and Oil-fired Electric Utility Steam Generating Units (a.k.a. “EGU MACT”) and final revisions to the New Source Performance Standards (NSPS) in Subpart Da (as well as some similar changes in Subparts D, Db and DC). The Administrator signed the final Utility MACT Rule and NSPS changes late last week. EPA was subject to a Consent Decree that originally required the standards to be finalized by November 16, 2011. Shortly before the deadline, EPA was granted a one-month extension (December 16, 2011) based on a motion filed by the Department of Justice on behalf of EPA.
The Utility MACT rule affects all coal-fired, coke and oil-fired boilers that generated greater than 25 MW and will impose significant emission reduction requirements and compliance costs for many units. Unlike the Industrial Boiler MACT Rule that affects similar non-Utility sources but which is still being evaluated under “reconsideration,” EPA is treating the Utility MACT Rule as a final rule. Compliance will be required within 60 days of publication in the Federal Register for new units and within three years (and 60 days) after publication for existing units.
Copies of the proposed and rulemaking can be found in our FTP library. For additional information, please contact Ralph Roberson at (919) 510-0376.
On December 2, 2011, EPA proposed changes to both the major source and area source IB-MACT Rules, the CISWI Rule, and the Non-Hazardous Secondary Materials (NHSM) Rule. EPA was expected to issue further revisions of these interrelated rules by October 31, 2011, according to an EPA announcement earlier this year. The rules contain a number of significant revisions based on additional comments and data received following publication and the simultaneous notice of reconsideration on March 3, 2011. EPA intends to finalize this reconsideration by spring 2012 although this self-imposed deadline could change based on further legal action in the pending case before the United States District Court for the District of Columbia.
EPA will take public comment on this rulemaking for 60 days following publication in the Federal Register. EPA intends to hold a public hearing on these proposed rules although further details will be provided by EPA in the near future. Copies of the proposed rulemaking can be found in our FTP library.
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