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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).
On May 20, 2008, the D.C. Circuit Court of Appeals denied the two petitions that were filed seeking rehearing en banc (all the judges of the Court) of the Court’s February 8th decision to vacate EPA’s Clean Air Mercury Rule (CAMR). While we may continue to be disappointed by the Court’s decisions, we never cease to be surprised. That is, the en banc rehearing petitions were before the Chief Judge and the nine Circuit Judges. Yet, for reasons we do not understand, the petitions were denied by five judges with five judges “not participating in the matter.” Go figure!
On
March 24, 2008,
two petitions were filed in the D.C. Circuit Court of Appeals seeking
rehearing
en banc (all the judges of the Court)
of the Court’s February 8th decision to vacate EPA’s Clean
Air
Mercury Rule (CAMR). The U.S. Government
filed on behalf of EPA, and UARG filed on behalf of its electric
utility member
companies. Both petitions pointed out a
series of mistakes made by the original panel in arriving at the
February 8th
decision. While the panel relied heavily
on Chevron U.S.A. v. NRDC, both
petitions chastised the panel for misapplying the statutory principles
of
interpretation set forth in Chevron.
In Chevron,
the Supreme Court explained the meaning of a “word” can only be
determined in
the context of the overall statute – not as a single word in isolation. Both petitions are concise, make for
interesting reading, and are posted in our FTP Library.
Keep checking back to our web site; RMB will
try to keep you informed as CAMR twists and turns in the Court.
It is difficult to decide which was worse: (1) the media’s reporting of the Court’s decision or (2) the decision itself. For example, a Washington Post article stated that the Court struck down Bush administration policy allowing some power plants to exceed mercury emission levels, ruling that the government failed to consider the effect on public health and the environment. First, EPA’s Clean Air Mercury Rule (CAMR) is a regulation – not a “Bush administration policy.” More importantly, the Court did not even consider public health or environmental issues – much less rule on them. A North Carolina paper wrote that the Court said the Bush administration ignored the law three years ago when it imposed less stringent requirements on power plants to reduce mercury pollution. In point of fact, the Court neither mentions the Bush administration nor does it deal with the stringency of CAMR. What did the Court really say? Basically, the Court agreed with the environmental Petitioners’ challenge, which was that EPA could not legally remove electric generating units (EGUs) from the section 112(c) list of source categories of hazardous air pollutants (HAPs) without following the delisting procedure described in section 112c(9). Since, in the opinion of this Court, EPA inappropriately removed EGUs from the section 112(c) list, CAMR must be vacated because it was developed under the provisions of section 111(d). The D.C. Circuit Court’s ruling was on a very narrow issue – clearly not the sweeping repudiation that the media has so zealously reported. EPA defended its action by explaining that the Agency reversed its December 2000 “appropriate and necessary” finding. That is, since EPA used the “appropriate and necessary” finding to put EGUs on the section 112 list in 2000, a negative “appropriate and necessary” finding in 2004 required the Agency to remove EGUs from the list. The Utility Air Regulatory Group (UARG) intervened and supported EPA’s defense. Moreover, UARG argued that the section 112(c) listing was not binding because of lack of notice and comment rulemaking, and thus EPA is not required to comply with the section 112(c)(9) delisting approach. In a most perplexing statement, the Court ruled it need not consider the intervener’s argument because EPA steadfastly refused to join it. The Court’s decision may raise more questions than it answers, especially with respect to what happens next. It is interesting to note how environmental groups have praised the Court’s decision on CAMR. It is interesting because this decision vacates the only nationwide control of mercury emissions from EGUs!
On Friday (02/08/08), the DC Circuit Court stuck down the Clean Air Mercury Rule (CAMR) in its entirety. The three judge panel vacated the CAMR regulations for both new and existing units. The decision remands the issue of how to regulate mercury emissions from electric generating units back to EPA for its reconsideration. How did we get here? Several states and environmental groups had sued the EPA over the CAMR regulations, which the court elected to consolidate in a single case. On the other side of the table and adding to the complexity of the case, a number of states and groups, including the Utility Air Regulatory Group (UARG), acted as interveners for the Agency (i.e., supported the defense). However, while the petitioners posed a number of challenges to CAMR, the court’s action hinged simply on the EPA’s decision to delist the electric generating units (EGUs) from Section 112(c) of the Clean Air Act (CAA). Section 112(n) of the CAA required the EPA to conduct a study of hazardous air pollutants from EGUs to determine whether it was “appropriate and necessary” to regulate the sources under Section 112, which would require prescriptive Maximum Achievable Control Technology (MACT) limitations. This study was completed in 1998. In December of 2000, EPA Administrator Carol Browner announced that it was “appropriate and necessary” to regulate coal- and oil-fired EGUs under Section 112. But, in 2005, EPA reconsidered its decision to list EGUs under Section 112 and determined that its original “finding lacked foundation” and that, for a variety of reasons, it was “not appropriate or necessary” to regulate the units under Section 112. Instead, the Agency decided it had the discretion to regulate mercury under Section 111 of the CAA and finalized the CAMR regulations based on this new approach. In Friday’s opinion, the DC Circuit Court stated that the Agency’s 2005 delisting action was without authority because it did not satisfy the requirements of Section 112 (c)(9), which states that the Agency may delist only after determining that the emissions from the sources do not “exceed a level which is adequate to protect public health with an ample margin of safety and no adverse environmental effect will result...” In the absence of this evidence, the court was highly critical of EPA’s determination, stating that the Agency “deployed the logic of the Queen of Hearts,” suggesting that EPA’s decision was based on nothing more than the whimsy of its desires. (While EPA’s actions regarding mercury have been rife with misstep and error, the author finds the court’s critical tone somewhat excessive.) Since the court found the delisting to be invalid, EGUs should have been regulated under Section 112 not Section 111, so the CAMR regulations “must fall.” Because the delisting was improper, there is no basis for either the CAMR-related NSPS mercury limits for new sources or CAMR established mercury budget/trading program for existing units. [Commentary: The Court’s finding would seem to be predicated on the assumption that the Agency’s December 2000 listing was a final, binding decision. But, some of the interveners argued that listing was not binding because Section 112(n)(1)(A) states that no listing action of the Administrator “shall be a final agency action” until “the Administrator issues the emission standards for such pollutant or category” (and is, thus, subject to notice and comment). In other words, the interveners argued that the listing action was not final since the Agency had not finalized the associated MACT standard. However, the court (which relegated this issue to a footnote) stated that it did not even consider this contention “because EPA has steadfastly refused to join it.” The Court’s decision to ignore the question of whether the listing actually represented a final decision seems disingenuous not only because the opinion cites the portion of the preamble to CAMR rule where the Agency states that “the December 2000 finding and associated listing are, therefore, not final agency actions” (Federal Register March 29, 2005, p. 16033) but because it was the same court that heard the industry’s initial objection to the listing action. In that case, the Agency appears to have stated the exactly what it supposedly was refused to join, indicating that “because the decision to add coal and oil fired electric utility steam generating units to the source category list is not yet final agency action, it will be among the matters subject to further comments in subsequent standards rulemakings” (EPA’s Motion to Dismiss UARG v. EPA, 2001). Is the court itself indulging in the logic of the Queen of Hearts or just in the simplicity of a selective memory?] Where do we go from here? It appears that the court’s decision leaves EPA with three options: 1) It can appeal the decision. 2) It can revisit the delisting by developing justification in accordance with Section 112(c)(9). 3) Or, it can develop a MACT standard for EGUs based on Section 112. While EPA (or the interveners) could appeal, some suggest that this is “a bit of a long shot.” [Quote by Jeffrey R. Holmstead (the former EPA Assistant Administrator for Office of Air and Radiation who is generally credited as the architect of the Section 111-based CAMR approach) cited in a February 9, 2008 article in the Los Angeles Times.] The next step in the judicial process would be a hearing by the full DC Circuit Court, which, given the unanimous nature of the decision by the three judge panel, might be difficult to obtain. This would leave only an appeal to the US Supreme Court, which may also be less disposed to hear the case for the same reason. Beyond an appeal, EPA could choose to salvage CAMR by developing Section 112(C)(9) justification for the delisting. However, baring the aforementioned argument that a listing action is not final until the standard is developed (and subject to notice and comment) that the court elected to ignore, Section 112(C)(9) creates a hole that is much easier to fall into than it is to climb out of. Under the court’s decision, the pages of discussion that EPA included in the preamble to the “Delisting Rule” describing the reasons its initial finding was a mistake count for nothing. The Agency must show that the emissions do not “exceed a level which is adequate to protect public health with an ample margin of safety and no adverse environmental effect will result...” If EPA must fall back to developing a MACT standard, will the Agency simply be able to dust off the MACT standard that it initially proposed in parallel with the cap-and-trade-based CAMR proposal back in 2004, or will it need to go completely through the MACT standard development process based upon new utility control and performance data? In accordance with the CAA, the MACT limit for new sources shall be no less than the “best controlled similar source, as determined by the Administrator.” For existing sources, MACT standards must be no less stringent than the average of the best performing 12% of existing sources. Either way the impact of a MACT standard on industry would be great. All units would need to comply with the mercury limits. There would be no trading and, thus, no chance to balance out one unit by “over-controlling” another. Based on the court’s decision for National Lime Association v. EPA (December 2000), some would also argue that listing EGUs under Section 112 subjects the units not only to mercury limits but potential monitoring and limitation requirements with each of the 189 hazardous air pollutants listed under Section 112. What does this mean for mercury monitoring? While the ruling did not explicitly touch on the subject, it is logical to infer that if CAMR is dead then any monitoring required in conjunction with the program is likewise dead. 40 CFR §75.80(a) states that sources must comply with the mercury monitoring requirements only “to the extent that compliance is required by an applicable State or Federal Hg mass emission reduction program that incorporates by reference, or otherwise adopts the provisions of, this subpart.” Vacating the CAMR program would seem to remove the applicability of the Part 75 mercury requirements for the states that adopted EPA’s model CAMR trading rule although some states may need to revisit their specific regulations. For states that chose to implement mercury regulations that were more stringent than CAMR, those requirements (and any associated monitoring) would still stand. At present, EGUs are in limbo. The court has not issued the mandate for the decision so the monitoring provisions are technically still in effect. Obviously, however, there remains considerable uncertainty around what EPA’s response to this decision will be and whether CAMR is actually down for the count. If an appeal is successful, the court’s action will, presumably, have no impact on the impending Part 75 monitoring deadline. Even if CAMR is out for good, the monitoring hiatus will likely be (excluding some political force majeure) only a temporary one since any mercury MACT standard will presumably include continuous monitoring requirements. While no trading would be involved, the importance such data, in terms of the total cost and scope of the associated emission reduction, would only increase. [Some had suggested that even if the court vacated the CAMR, that the monitoring provisions could still stand. It had been suggested that the Agency would petition (and perhaps it still will) that the CEMS data would be necessary to establish the MACT standard and that the court might specifically stay the mandate on certain CAMR monitoring related provisions. This author, however, finds such a position difficult to justify.] How similar any MACT monitoring requirements would be to the current Part 75 requirements is a serious question since the MACT standard and any associated monitoring requirements would fall under the jurisdiction of EPA’s Office of Air Quality and Planning Standard (OAQPS) rather than the Clean Air Markets Division (CAMD). For example, would OAQPS entertain a periodic testing approach for a mercury MACT standard similar to the Part 75 provision for low mass emission units and how might the QA requirements differ? In general, the OAQPS regulations tend to be more straightforward than Part 75 with fewer monitoring options. Under a MACT standard, the reporting provisions would likely be more similar to Part 60 excess emissions rather than the highly prescriptive, data intensive requirements of Part 75. Enjoy your CAMR “vacation” – things may get interesting. [This article was written by Steve Norfleet who acknowledges that he is not a lawyer and that the opinions expressed in this article are solely his own.]
The final revisions to Part 75 were published in the Federal Register today (page 4312 of the January 24 issue). A copy of the promulgated revisions from the Federal Register including the preamble has been posted on our FTP library.
The final revisions to Part 75 were signed on December 19, 2007. While the revisions have not yet appeared in the Federal Register, EPA has release an unofficial consolidated version of Part 75 incorporating the new changes. A copy of the redline/strikeout version has been posted on our FTP library.
In accordance with §75.63(a)(1), sources that will be certifying mercury (Hg) CEMS equipment in 2008 must submit the certification data no more than 45 days after the tests are completed. Sources must also provide electronic monitoring plan information at least 21 days (proposed) prior to starting the certification tests. Since there is no way to report Hg data using the existing EDR format, which EPA has expressed that it will not revise for Hg, the predicament could potentially force many sources to use the new XML format prior to the anticipated date of 2009 when the Agency has stated that XML will be required for all sources. A similar situation also exists for newly affected SO2 sources under CAIR, which cannot be completely addressed by the existing EDR format. Complicating matters further, CAMD has stated that sources cannot report using both formats during the 2008 transition. So, if a source has to report an Hg monitoring plan and certification data, presumably, it would also have to report all its regular emissions data using the new format too. Furthermore, while 2008 has been slated as a transition year where sources could opt into XML reporting, EPA is somewhat behind its initial schedule so a production version of CAMD’s ECMPS client tool (which will be required to evaluate XML formatted data and facilitate submission of that data to EPA's host database) will not be available for some potential certifications in early 2008. In recognition of this situation, EPA has indicated that it will accept (and grant) petitions to extend the deadline and give sources up to the 90 calendar days following the official release of the ECMPS client tool software to submit their monitoring plan and certification data. The extension would apply to both the electronic records submitted to CAMD as well as the hardcopy portions of the monitoring plan that are submitted to the applicable state and region. Although CAMD first indicated an email request would be sufficient, it has since reversed that decision. To ask for an extension, sources should send a written request in the form of a petition under §75.66. It is recommended that the request should be submitted before certification testing is completed. For more information, including a sample petition, click here.
While it is our understanding that a rulemaking package has been signed by the Administrator to take final action the Part 75 revisions that were proposed last year, EPA has not yet released the final rule revisions. The Agency has, however, released a copy of the associated Response to Comments document, which sheds light on many of the apparent changes in the final version from the original proposal. A copy of the document has been posted to our FTP Library. RMB has also prepared a summary highlighting some of the apparent changes in the final revisions based on the Response to Comments document.
EPA has released the Direct Final Rule including the "official" versions of Methods 30A and 30B as they will appear in the Federal Register. The Direct Final should be published in the Federal Register in about 3 weeks. When published, there will be a 30-day comment period. If no adverse comments are received by EPA, (please do not send in adverse comments) the rule will be effective in an additional 30-days. A copy of the rule has been posted to our FTP Library.
Its final--the IB-MACT Rule was officially vacated on Monday with the issuance of the court's mandate for the June 8, 2007 ruling. It was expected that the court would issue the mandate by July 30th. Court procedures allowed a 45-day period following the original ruling for parties to submit any petition for further review and an additional seven days at the expiration of this period before officially issuing the mandate. Vacature of the IB-MACT Rule activates the case-by-case MACT requirements provided for in Section 112(j) of the Clean Air Act. While the timing of this is less than clear, we believe case-by-case MACT will be implemented in a two-phase approach as described in 40 CFR 63.52.
EPA has released "work-in-progress" versions of a draft mercury instrumental reference method (Method 30A "Determination of Total Vapor Phase Mercury Emissions from Stationary Sources") and a draft mercury sorbent trap reference method (Method 30B "Determination of Total Vapor Phase Mercury Emissions from Coal-Fired Combustion Sources Using Carbon Sorbent Traps"). The draft methods have been posted to our FTP Library. Later this year, EPA plans to take direct final action to approve the two reference methods. With a direct final action, EPA issues a notice of a final rule that will take effect if there is no adverse public comment. The Agency will also simultaneously publish a notice of proposed rulemaking to facilitate such comment. Ostensibly, EPA has released the draft methods to help sources and testing firms plan for upcoming mercury CEMS RATAs. An additional benefit of the release is that it allows others the opportunity to review the methods prior to their publication in the Federal Register, which is especially valuable given the final direct ruling approach and the need of the industry to have a viable reference method in place shortly. While the methods have not been formally released for public comment, any questions or concerns regarding the draft reference methods should be brought to the EPA's attention so that the issues can be addressed before the methods are finalized.
A On June 8th, the DC Court of Appeals vacated the National
Emissions Standards for Hazardous Air Pollutants for Industrial,
Commercial, and Institutional Boilers and Process Heaters (40 CFR 63,
Subpart DDDDD, aka "IB-MACT Rule"). This decision was not all
that unexpected as EPA had already filed a motion on March 26, 2007 to
partially vacate the rule because of issues associated with the
establishment of the MACT emissions floor. However, the rule was
vacated not because of EPA's motion but because of a related decision
pertaining to the New Stationary Sources and Emission Guidelines for
Existing Sources: Commercial and Industrial Solid Waste Incineration
Units (aka "CISWI Definitions Rule"). In NRDC (et al) v. EPA and
the Coalition for Responsible Waste Incineration, the court ruled that
EPA's definition of "commerical or industrial waste" was inconsistent
with the language in Section 129 of the Clean Air Act. As a
result, many of the boilers now affected by IB-MACT will be
reclassified as CISWI units, which will substantially reduce the
universe of boilers affected by IB-MACT. Because IB-MACT will
need to be significantly altered to address these changes, the court
decided to vacate the rule in its entirety. The court also
indicated that this decision makes EPA's motion for partial vacatur and
remand irrelevant.
A copy of Steve Norfleet's paper summarizing state mercury regulations and a copy of Richard McRanie's presentation highlighting Mercury CEMS technical issues and recent results that was presented at the EPRI Mercury Measurements Workshop (held after the 2007 Electric Utilities Environmental Conference in Tucson, Arizona) have been posted to RMB's new Technical Papers and Presentations section.
On August 4, 2006, EPA posted to its website proposed revisions to 40 CFR Part 75. EPA posted the proposed revision and also an “unofficial” redline/strikeout version of the Rule as Volumes 1 & 2. The proposed revisions were formally published in the Federal Register on August 22, 2006. Highlights of the proposed revisions are listed below.
Comments on the proposed 40 CFR Part 75 revisions are due no later than October 23, 2006. Copies of the redline/strike version as well as the Federal Register version of the proposed 40 CFR Part 75 revisions are available in our FTP Library. For more information, please contact Ralph Roberson at (919) 791-3121.
On May 15, 2006, EPA published “Updates of Continuous Instrumental Test Methods” in the Federal Register as a final rule. The final rule revises Reference Methods 3A, 6C, 7E, 10 and 20. Highlights of the changes are listed below. These new methods must be used on any RATA or compliance test after August 14, 2006. RMB suggests that you contact your testing company immediately to make sure that it has a plan for implementing these Reference Methods.
A copy of the final instrumental test method rule is available in our FTP Library.
On May 31, 2006, EPA announced its final decision with respect to reconsidering several aspects of the Agency’s March 29, 2005 Electric Utility Delisting Rule (Section 112(n) Revision Rule). EPA also announced its final decision with respect to reconsidering certain issues in the May 18, 2005 Clean Air Mercury Rule (CAMR). After considering petitions for reconsideration, EPA decided not to revise its final Section 112(n) Revision Rule other than explaining, in more detail, what the Agency meant by the effectiveness element in the term “necessary.” EPA made two substantive changes in CAMR: (1) revised some State mercury allocations and (2) revised the new source performance standards (NSPS). Several commenters provided data indicating EPA erred in the mercury allocations for Alaska because it failed to include a coal-fired unit located in that State. EPA agreed, added the heat input for that unit, and made the appropriate adjustment to the Alaska budget. However, because of the relatively small adjustment required coupled with the significant figures in the State budgets, EPA had to revise only six other State mercury budgets. Many commenters expressed concern over the statistical analysis EPA used to develop NSPS mercury emission limits. EPA did not find it necessary to revise its statistical approach, although the Agency did correct some mathematical errors in the original statistical analysis. EPA’s final NSPS mercury emission limits are as follows. (Note that compliance with the NSPS limits is based on continuous monitoring data and determined on a 12-month rolling average basis.)
EPA’s final reconsideration decision somewhat takes on the characteristics of a “good news” and “bad news” story. The good news is that if you have read and comprehended the requirements of CAMR, then you will not need much remedial training. The bad news is that now that EPA has completed its reconsideration process, mountainous litigation can and undoubtedly will begin. Moreover, we probably cannot reasonably expect a decision from the D. C. Court of Appeals before the end of 2007. Generally speaking, electric utilities do not have the luxury of waiting for the Court’s decision and still be able to meet the CAMR monitoring deadlines! | News | CAM | Training | FTP Library | Projects | Links | Services | Contact | Feedback | RMB Consulting &
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