| What's on ALL4's Calendar? |
 At ALL4, we like to get out and about -- whether presenting or taking part in technical and regulatory conferences. Stop by and see us at these upcoming events.
COMING SOON...
- ALL4 Webinar Seires
- 4 The Record Survey | |
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| MACT SSM Exemption is Vacated |
 What happened?
On December 19, 2008, the U.S. Court of Appeals for the D.C. Circuit (Court) issued a decision vacating the Startup, Shutdown, and Malfunction (SSM) exemption provisions of the Federal National Emission Standards for Hazardous Air Pollutants (NESHAP) for Source Categories. These NESHAP regulations require the use of Maximum Achievable Control Technology (MACT) for minimizing hazardous air pollutant (HAP) emissions from regulated sources. The rules, including the SSM exemption provisions, are codified at 40 CFR Part 63 and were originally adopted by U.S. EPA in 1994.
The SSM exemption provisions included in the MACT rules were based on U.S. EPA's consideration of a source's "general duty" to minimize emissions during SSM events. The general duty provision was previously established under the Standards of Performance for New Stationary Sources (NSPS) rules. In vacating the exemption, the Court decided that the general duty to minimize emissions during an SSM event is inconsistent with Section 112 of the Clean Air Act (CAA) because the CAA requires that a Section 112 standard must apply continuously.
- How does the SSM exemption work?
- What did the Court say?
- What is the immediate affect of the vacatur?
Please contact ALL4's John Egan at 610.933.5246 x14 or jegan@all4inc.com should you have any questions regarding how the vacatur could affect your facility. |
| Pennsylvania Adopts Diesel Anti-Idling Rules |
 On October 9, 2008, Pennsylvania Governor Ed Rendell signed the Diesel-Powered Motor Vehicle Idling Act No. 124 which provides for idling restrictions on diesel-powered vehicles within the State. The provisions of the law will become effective on February 6, 2009. At about the same time that the Governor signed Act No. 124, the Pennsylvania Department of Environmental Protection (PADEP) was finalizing a separate anti-idling regulation which would have implemented similar requirements to those specified in Act No. 124. PADEP withdrew its idling restriction regulations through notice in the Pennsylvania Bulletin on November 15, 2008. PADEP has no intention of developing new regulations, but intends to enforce Act No. 124. Under Act No. 124, the owner or operator of the diesel-powered vehicle and the owner or operator of the location where the vehicle is loaded, unloaded, or parked are responsible for compliance with the requirements.
With the implementation of the restriction literally around the corner, it would be prudent for regulated entities to provide company-employed or contracted diesel vehicle operators with specific training and written guidance regarding the restrictions and how to comply with the law at a specific location. Of special note is the requirement for owners or operators of affected facilities to post signs where trucks park or wait to unload or load, informing the diesel vehicle operators about these idling restrictions. Sign specifications have been developed by the Pennsylvania Department of Transportation (PennDOT) in response to the rule. PennDOT also provides general specifications regarding the locations for posting the signs.
Please contact ALL4's John Slade at 610.933.5246 x36 or jslade@all4inc.com should you have any questions regarding the diesel idling restriction rule. | |
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| Introducing "Sladecast"
John Slade's Thoughts on CAIR, Anti-Idling Rule, and Fugitive Emissions in NSR |
At ALL4, we've highlighted the insights of our RegTech Experts in previous 4 The Record articles and our clients have reaped the strategic rewards of their experience - as consultants, regulators and regulated entities. Our RegTech Experts are quite knowledgeable and have a lot of "wisdom" to share. You've become accustomed to their "written word" in 4 The Record and now you can hear them share their expertise and regulatory insights with your very own ears - RegTech goes techno! ALL4's John Slade will host a 4 The Record podcast series entitled "Sladecast" where he'll discuss and/or interview ALL4 subject matter experts on hot and relevant environmental topics that affect the regulated community. 
Listen this month as John highlights three air topics that greeted the regulated community in early 2009: (1) reinstatement of the Clean Air Interstate Rule (CAIR), (2) Pennsylvania's anti-idling rule, and (3) U.S. EPA's NSR fugitive emissions directive.
Have a topic that you'd like to hear John discuss? Submit your ideas to sladecast@all4inc.com. |
| U.S. EPA Issues Final Flexible Permit Rule |
 On January 13, 2009, U.S. EPA finalized a flexible permitting rule that was initially proposed on September 12, 2007 (see our February 2008 4 The Record article for an analysis of the proposed rule). The rule revises the Title V regulations to allow for the development of flexible air permits (FAPs). In U.S. EPA's own words, a FAP is a Title V permit that facilitates flexible, market-responsive operations at a source through the use of one (1) or more permitting approaches, while ensuring equal or greater environmental protection as achieved by conventional permits. The flexibility provisions provided in the rule and described in the preamble have been tested and evaluated over a decade through a pilot flexible air permitting program and have been previously described in U.S. EPA White Paper No. 3.
The final flexible permit rule retains the alternative operating scenario (AOS) and approved replicable methodology (ARM) provisions described in the proposed rule. The now-defined AOS term will replace the term "operating scenario" in the Title V rules. ARMs are envisioned to facilitate the implementation of advanced approvals and AOS under a Title V permit and to reduce the need for permit modifications consistent with the Title V regulations. The originally proposed "Green Group" concept has been excluded from the final rule. The Green Group revisions that were included in the proposed flexible permitting rule were arguably the revisions with the most potential to provide operating flexibility to sources. The flexible permitting policy discussions included in the preamble to the rule are consistent with the discussion in the proposed rule and affirm U.S. EPA's support of advanced approvals and other flexible permit concepts that can be supported by State Implementation Plans (SIPs).
Click here to read the final rule. A more complete analysis of the final flexible permitting rule will be available in ALL4's February 2009 issue of 4 The Record. Any questions can be directed to ALL4's Roy Rakiewicz at 610.933.5246 x27 or rrakiewicz@all4inc.com. |
| UPDATE: The Resurrection of CAIR |
 On December 23, 2008, the U.S. Court of Appeals for the District of Columbia Circuit (Court) reversed its earlier (July 11, 2008) decision to vacate the Federal Clean Air Interstate Rule (CAIR). The Federal court decided, after considering comments from the appellants to the rule, to allow CAIR to remain in effect while U.S. EPA "fixes" the rule. In the July 11, 2008 decision, the Court had identified where the rule was not consistent with the Clean Air Act (CAA). In its order for a rehearing the Court stated: "Here, we are convinced that, notwithstanding the relative flaws of CAIR, allowing CAIR to remain in effect until it is replaced by a rule consistent with our opinion would at least temporarily preserve the environmental values covered by CAIR."
On July 11, 2008, the Court had decided to vacate CAIR in its entirety and remand it to U.S. EPA declaring that the 2005 rule "had more than several fatal flaws." In September 2008, U.S. EPA petitioned the Court for a rehearing or as an alternative, a remand of CAIR without the Court's order vacating the rule. The Court, in its December order, stated that it had considered the appellant parties' positions in making its determination to remand CAIR to U.S. EPA without vacating it. The Court did not give U.S. EPA a specific deadline for revising CAIR as some petitioners had requested, but the court warned the Federal agency that it did "not intend to grant an indefinite stay of the effectiveness of this court's decision."
Most CAIR-affected sources and state air quality regulatory agencies believe that the recent Court decision is a good move that will benefit the environment and is in the best interest of industry. However, this action may have caught both regulators and CAIR-affected sources off guard because of the January 1, 2009 effective date of CAIR. U.S. EPA has indicated that it will issue guidance to address problems that may result from such a quick re-start of the program. Regardless, CAIR-affected sources now need to review their implementation plans to assure that they are doing everything in accordance with the rules.
The immediate future of CAIR has regained certainty, but now the owners and operators of CAIR-affected sources are left with making long-term decisions about the use of their allowances and construction of additional CAIR controls without the benefit of knowing what the revised final CAIR rule will ultimately look like. We suggest that CAIR-affected sources track the development of the Court-mandated CAIR revisions very closely. Considering its past history and the fact that we will now have a new U.S. EPA Administrator, the surprises may not be over.
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| Climate Change News and Notes |
 The Western Climate Initiative (WCI) released a report that contains the proposed approach for addressing the calculation and reporting of greenhouse gas (GHG) emissions as part of the WCI Regional Cap and Trade Program. The tracking of GHG emissions will begin in 2010 and reporting will begin in 2011. Combustion and non-combustion emissions from electrical generation, large industrial facilities, and gas and oil production will be part of the program. Participation in the allowance portion of the WCI Regional Cap and Trade Program will be phased in by having larger GHG sources begin to participate in January 2012 and smaller GHG sources participating at a later date. If a facility emits more than 25,000 metric tons of carbon dioxide equivalent (CO2e), it will be included in the WCI Regional Cap and Trade Program. If a facility emits more than 10,000 metric tons CO2e then the facility will have to report and verify its GHG emissions. The Climate Registry (TCR) will manage the WCI information and will use a variation of the Climate Registry Information System (CRIS). The WCI is preparing GHG quantification procedures for more than 30 key industrial sectors using the Climate Leaders Intergovernmental Panel on Climate Change (IPCC) guidance. Arizona, California, Montana, New Mexico, Oregon, Washington, and Utah participate in the WCI. Alaska, Colorado, Idaho, Kansas, Nevada, and Wyoming are observing the WCI. Please contact ALL4's Cara Fox at 610.933.5246 x23 or cfox@all4inc.com should you have any questions related to the WCI or Climate Change. |
| Revised Rule on Fugitive Emissions for NSR Permitting |
 U.S. EPA has revised its long-standing policy regarding which existing major stationary sources are required to include fugitive emissions when determining whether emission increases from physical or operational changes result in a major modification under New Source Review (NSR). U.S. EPA currently requires all source categories to consider fugitive emissions when determining whether an emission increase from a source modification triggers major NSR permitting requirements. U.S. EPA will now require only those 26 "listed" 100-ton source categories designated through rulemaking pursuant to Section 302(j) of the Clean Air Act (CAA) (i.e., Section 302(j) sources) to consider fugitive emissions when making applicability determinations under NSR. However, U.S. EPA intends to preserve its existing treatment of fugitive emissions for Plantwide Applicability Limit (PAL) permits. To implement its new approach to fugitive emissions, U.S. EPA revised four (4) main portions of the major NSR program regulations: 40 CFR §§51.165, 51.166, 52.21, and Appendix S to Part 51. The revisions are nearly identical for the existing regulations because they contain nearly identical provisions related to major modifications. In addition, U.S. EPA is also finalizing the following:
- A minor change in the provisions for PALs to preserve their existing treatment of fugitive emissions.
- A modification to the paragraph in each section that explains how to calculate whether a significant emissions increase will occur as the result of a physical or operational change.
- A minor revision in the provisions on monitoring and reporting for physical and operational changes that are found not to be major modifications.
- A revision to the definitions of ''baseline actual emissions'' and ''projected actual emissions" for NSR permitting.
A number of states will continue to include fugitive emissions in their applicability determinations as specified in their state-specific NSR regulations. However, for PM2.5 Nonattainment NSR (NNSR) rules, the Federal Appendix S provisions control all determinations until states adopt new rules. This means that fugitive PM2.5 emissions will only be included in an NNSR applicability determination if they are from a Section 302(j) source or category facility. This could be beneficial for certain NNSR permit applications, but will also limit which fugitive emission reductions can be used for netting or offsetting purposes.
Please contact ALL4's John Slade at 610.933.5246 x36 or jslade@all4inc.com should you have any questions about how fugitive emissions relate to NSR. |
| PA CEMS Revision 8 Implementation - It's Official! |
 As detailed in ALL4's 4 The Record Extra! earlier this month, the Pennsylvania Department of Enviromental Protection (PADEP) Bureau of Air Quality (BAQ) has announced that the new Continuous Emission Monitoring Data Processing System (CEMDPS) is functional and that the owners/operators of affected facilities must implement the requirements of Revision 8 of the Continuous Source Monitoring Manual (CSMM) by July 1, 2009.
Affected facilities include all sources that must comply with the monitoring requirements of 25 Pa. Code §139.102(3). In other words, if your facility currently submits quarterly reports to PADEP in accordance with older versions of the CSMM, then Revision 8 applies to your facility and you must meet the following deadlines:
- February 15, 2009 -- Submit notification to BAQ of the date by which your facility intends to comply with Revision 8.
- March 31, 2009 -- Submit a Revision 8 implementation plan if your facility is not able to meet the July 1, 2009 compliance date.
- June 1, 2009 -- Submit demonstration of compliance with the Revision 8 recordkeeping, reporting, and certification activities.
- July 1, 2009 -- Start the collection of continuous emission monitoring systems (CEMS) data using the new Revision 8 data validation scheme and implement any new or updated QA/QC activities.
- October 30, 2009 -- Submit newly formatted 3Q2009 quarterly report.
The time for planning for Revision 8 of the CSMM is over. It's time to implement! Your facility should already be working on data aquisition and handling system (DAHS) upgrades, GreenPort Access, QA/QC Plan revisions, additional certification tests, implementation plans, Phase I monitoring plan, and related changes to your facility's monitoring protocol and procedures.
ALL4 can help you with each aspect of your conversion to Revision 8. Please contact ALL4's Eric Swisher at 610.933.5246 x17 or eswisher@all4inc.com should you have any questions about Revision 8 and how your facility can comply. |
| EnviroReview Extract |
 EnviroReview is ALL4's regulatory update product which summarizes multimedia environmental changes at the Federal, state, and local level. Being on top of the regulatory development process is paramount to continued environmental compliance. "EnviroReview Extract" is a monthly feature sharing several highlights of the previous month's EnviroReview. This month's highlights include:
Federal News
U.S. EPA has simultaneously issued an interim final rule, a direct final rule, and a proposed rule to reaffirm the 2006 promulgation of certain revisions to the Acid Rain Program rules. The rule revisions of interest were finalized in the Federal Register notices that also finalized the Clean Air Interstate Rule (CAIR) and the Federal Implementation Plans (FIPs) for CAIR (CAIR FIPs). Since the U.S. Court of Appeals for the D. C. Circuit issued a ruling vacating CAIR and the CAIR FIPs in July 2008, U.S. EPA believes it is necessary to clarify the legal status of the non-CAIR and non-CAIR-FIP-related Acid Rain Program rule revisions. Therefore, U.S. EPA is reaffirming the promulgation of these Acid Rain Program revisions, which have been in effect since mid-2006. U.S. EPA believes that most of the revisions are crucial to the ongoing operation of the Acid Rain Program, and the rest of the revisions streamline and clarify requirements of the program. The interim final rule was effective December 15, 2008 and will continue to be in effect until December 15, 2009 unless it is withdrawn prior to that date. The interim final rule will automatically be withdrawn upon the effective date of a final rulemaking (final rule or direct final rule). If U.S. EPA does not receive any adverse comment by January 29, 2009, (1) the direct final rule will become effective on April 14, 2009, (2) the interim final rule will be withdrawn on April 14, 2009, and (3) U.S. EPA will take no further action on the proposed rule. If U.S. EPA does receive adverse comment by January 29, 2009, U.S. EPA will publish a separate notice withdrawing the direct final rule and proceed with the rulemaking process based on the proposed rule. Upon consideration of the comments, U.S. EPA will publish a final rule, which is expected no later than December 15, 2009.
Massachusetts News
The Massachusetts Department of Environmental Protection (MassDEP) issued an emergency regulation regarding mandatory greenhouse gas emissions reporting on December 29, 2008. The regulation identifies the types of facilities that are required to report greenhouse gas emissions, requires them to register with MassDEP by April 15, 2009, and requires reporters to use the calculation methodologies specified in the Climate Registry General Reporting Protocol. MassDEP will hold two (2) stakeholder meetings regarding the emergency regulation. The first stakeholder meeting, which took place on January 16, 2009, is for reporting by electricity sellers regarding emissions associated with generating the electricity that they sell. The second stakeholder meeting, which took place on January 22, 2009, is for all other aspects of the comprehensive regulation, including verification, voluntary reporting, and reporting to the regional registry. MassDEP intends to propose amendments to address statutory requirements that are not included in the emergency regulation. A public hearing on the emergency regulations will take place on February 11, 2009. Comments are due by February 23, 2009.
New Jersey NewsThe New Jersey Department of Environmental Protection (NJDEP) has adopted new rules and amendments at N.J.A.C. 7:27-24 (Prevention of Air Pollution from Consumer Products), which regulates chemically formulated consumer products and portable fuel containers. NJDEP has also adopted new N.J.A.C. 7:27-26, which regulates adhesives and sealants, and N.J.A.C. 7:27-34, which establishes reporting requirements for the emission of tertiary butyl acetate (TBAC) and an amended definition of volatile organic compound (VOC). The effective date of these rules was December 1, 2008.
Pennsylvania NewsThe Pennsylvania Department of Environmental Protection (PADEP) has provided notice of revision to Technical Guidance Document No. 274-0300-006 (Technical Guidance Pertaining to Continuous Source Monitoring Systems for Mercury). This technical guidance document contains requirements relative to monitoring system design and performance, testing, recordkeeping, reporting, and quality assurance for the owners and operators of affected industrial and utility sources that are required to continuously monitor the emission of mercury. The owners of approximately 30 companies may be affected by this guidance document. PADEP published this guidance as Interim Final with a 30-day public comment period on September 27, 2008 (38 Pa.B. 5367). The comment period closed on October 27, 2008. Comments were considered and addressed in the Comment and Response document; however, no substantive changes were made to the guidance document as a result of the comments received. The effective date of the guidance document was December 27, 2008.
California News
The California Air Resources Board (CARB) has adopted amendments to Title 17 requiring mandatory reporting of greenhouse gas emissions. The revisions are pursuant to the California Global Warming Solutions Act of 2006. The effective date of this rule was January 1, 2009. | |
