Looks Like EPA Will Stymie Hard-Won Cement Plant Rules On Friday
We don't this very often, but because many of you spent so much time helping us get the first new cement plant emissions rules in 20 years, we thought it was important to reprint the entirety of a Subscription-Only INSIDE EPA article from Tuesday that puts the fate of those rules very much in question:
Activists Warn Possible EPA Weakening Of Cement MACT Likely Unlawful
EPA appears poised to soften particulate matter (PM) limits in its pending revised air toxics rule for cement plants while separately pursuing an extended compliance deadline for the rule, moves that are major concessions to industry groups that sought a weaker rule but are riling environmentalists who say such changes would be unlawful.
According to an industry source, EPA will propose to soften the rule's PM limits on smokestacks for existing cement plants. New data submitted to EPA by industry shows that the limit of 0.04 pounds per ton of clinker (lbs/ton) set by the final rule prior to reconsideration is not realistically attainable, the source says.
Instead, EPA will probably revert to a higher number, closer to the 0.085 lb/ton limit it offered in its original proposal, the source adds, saying, “it is likely going to be a little less stringent” in the revised rule.
However, environmentalists oppose softening the air toxics rule and recently warned the agency in written comment that “any changes diminishing or replacing the existing standards would be flatly unlawful.”
The likely changes to the rule follow a series of 11th-hour meetings that industry officials and others have held with EPA and White House Office of Management & Budget (OMB) staff seeking to the shape the proposal.
EPA faces a June 15 proposed consent decree deadline with industry to propose a revised maximum achievable control technology (MACT) standard for the cement sector. EPA issued a final rule in 2010 that industry challenged in the U.S. Court of Appeals for the District of Columbia Circuit. The court remanded the rule to EPA over the agency's failure to reconsider how a related incinerator air rule may potentially alter the cement rule's emission limits.
Ahead of this week's deadline for a proposal, the Portland Cement Association (PCA) and cement firms Lafarge, Ash Grove Cement Co. and Cemex met with OMB and EPA staff May 22, pushing a weaker PM limit. Industry representatives submitted documents to EPA demonstrating that there is considerable variability in the emissions of cement plants over time and this variation makes the existing 0.04 lbs/ton limit impossible to meet.
“PCA has examined the available data on PM emissions and the variability of PM emissions for the best performing cement plants and believes that the correct PM limit will be in the range of 0.06 to 0.08 lbs/ton of clinker or higher,” the industry group argues in a paper dated April 9 that was presented at the meeting. “Further, in discussion with EPA, PCA has received no information to the contrary,” according to the industry paper.
“The current PM limit of 0.04 lbs/ton of clinker is very stringent. . . . [V]ery few facilities can comply with the 0.04 lbs/ton clinker limit without major investments in new and upgraded PM controls,” the paper says. The industry source says these investments would “come at what is the worst time in this industry in decades,” still striving to recover from the recent crash in the construction sector that depressed demand for cement.
The source says EPA is also likely to help the cement sector through pending revisions to a related emissions rule for commercial and industrial solid waste incinerators (CISWI) and a rule defining what qualifies as “solid waste” that falls under the CISWI regulation. EPA agreed to revise those rules and a MACT for boilers to address industry concerns that the existing versions are unachievable, with final versions of the rules expected soon.
Overlap between the cement MACT and CISWI is a major concern for the cement industry. PCA has long argued that the agency's definition of some cement kilns as CISWI units — those that burn “alternative ingredients” — undermines the agency's process for setting limits in the MACT rule. In MACT rules, the air law largely requires that EPA take the best performing 12 percent of facilities and set standards based on them.
PCA successfully argued to the D.C. Circuit in its lawsuit challenging the cement MACT, PCA v. EPA, that removing plants from that data set would undercut the standards setting process.
“Our first desire is to avoid being labeled an incinerator in the first place,” the industry source says, because the incinerator rule sets tougher controls than the cement rule. The problem of reclassification as an incinerator arises because some cement plants burn items, such as tires, for fuel which fall under the CISWI rule.
Although PCA has made “some progress” in talks with EPA, and fewer cement plants will now fall under the CISWI rule, “a number of plants will still qualify as incinerators,” the source says.
Despite the likely reduction in the number of plants covered by the CISWI rule, the source predicts this will have little impact on the actual MACT floors set in the forthcoming cement proposal.
Rather, the altered PM limits will be more beneficial to industry. Despite the apparent concessions to industry, the source says that the MACT rule will still prove “very costly,” noting that a final reconsidered cement rule is not due until Dec. 20 and industry will reserve its final judgment on the regulation until then.
Compliance Deadline
EPA could also extend the compliance deadline for the revised cement MACT, which would be another win for industry. In the proposed consent decree setting the June 15 deadline for issued proposed changes to the rule, the agency also floated the option of extending the compliance deadline in the MACT for existing cement plants from Sept. 10, 2013 to Sept. 9, 2015, in return for industry's vow not to seek rehearing of the D.C. Circuit's decision in the PCA case. The agency took comment on the proposed consent decree through June 7.
Industry groups including the American Road and Transportation Builders Association, International Brotherhood of Boilermakers and individual cement firms in their comments welcomed the suggested extension.
PCA in its April 9 paper said even with a less stringent PM limit, compliance with the cement MACT will take until at least September 2014, or September 2015 for plants that have to make more extensive retrofits.
Environmentalists, however, strongly criticized the proposed consent decree in their comments, while wondering that an extension or other measures to weaken the MACT would likely be unlawful.
In comments on the proposed consent decree, a coalition of environmentalists including the law firm Earthjustice, Natural Resources Defense Council, Sierra Club and nine other groups take aim at EPA's concessions to industry. They note that the cement MACT under reconsideration stems originally from a D.C. Circuit remand of air toxics standards for cement plants in 2000, underscoring the lengthy delay for the rule.
“One especially troublesome aspect of the proposed settlement is EPA's commitment to either propose a two-year compliance delay or take comment on such a delay,” the groups say.
The Clean Air Act says that EPA cannot allow more than three years for compliance, “Thus, any delay of the compliance date is presumably premised on a plan by EPA — a plan not mentioned in the settlement or discussed in the proposal — to change the standards” from those issued in 2010, they argue.
“Given that EPA proposes to enter this settlement with industry, it is likely that any such change would weaken the standards,” the groups say, and this would be illegal under the act unless the result of a court order.
The D.C. Circuit granted its remand of the MACT purely on the grounds that industry was not given the required time to comment on the relationship between the CISWI rule and the MACT, they argue. Therefore, “unless EPA finds in responding to the remand in PCA that its standards must be changed to reflect changed CISWI and cement kiln populations, any changes diminishing or replacing the existing standards would be flatly unlawful,” they say.
The groups further argue that EPA has rushed its reconsideration of the rule, undertaken in only six months. They say that in the absence of final rules on CISWI and the definition of solid waste, EPA cannot be any more certain of the number of cement plants that fall under the CISWI rule now, compared to when it issued its final rule in 2010, or submitted its briefs to the D.C. Circuit in litigation on the issue last year. — Stuart Parker