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Year in Review: Clean Air Act

Year in Review: Clean Air Act. Things Are Getting Really Complicated. Presented by: Tom Wood Stoel Rives LLP October 8 , 2010. Clean Air Act & GHGs. That was this morning. Boiler MACT & CISWI. NESHAPs (aka MACT) = hazardous air pollutant (HAP) standards

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Year in Review: Clean Air Act

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  1. Year in Review: Clean Air Act Things Are Getting Really Complicated Presented by: Tom Wood Stoel Rives LLP October 8, 2010

  2. Clean Air Act & GHGs • That was this morning

  3. Boiler MACT & CISWI • NESHAPs (aka MACT) = hazardous air pollutant (HAP) standards • Typically apply to major sources of HAP (10/25) • Section 129 incinerator standards • Apply to sources regardless of emission rate • Regulate much more than just HAP • By statute, same unit cannot be subject to both 129 standard and NESHAP • Boiler MACT issued in 2005

  4. Boiler MACT & CISWI • Boiler MACT issued in 2005 • CISWI definitions rule also issued in 2005 • Sierra Club challenged both rules • Claimed that EPA exceeded authority when it defined solid waste as material combusted at a facility that does not recover thermal energy for a useful purpose • DC Circuit agreed that solid waste definition too narrow • Vacated both rules in 2007

  5. Boiler MACT & CISWI • June 4, 2010 EPA proposed new CISWI and Boiler MACT rules • Proposed boiler standards for area and major sources • Area source standards referred to as GACT • Sources burning any solid waste subject to CISWI • EPA also proposed definition of solid waste rule • Subcategorized by fuel/boiler type • MACT regulates five different pollutants • CISWI regulates nine pollutants • Some (e.g., CO) serve as surrogates

  6. Boiler MACT & CISWI • Bottom line: • Standards are extraordinarily strict • Will be very expensive to comply with • Particularly brutal to biomass industry • Many manufacturers cannot produce a unit that complies with standards • Makes small units cost-prohibitive • Huge amount of testing required • Sad Irony: Biomass boilers savaged by standards and yet biomass boilers emit low levels of HAPs

  7. Boiler MACT & CISWI • Lisa Jackson stated in September 28, 2010 letter to U.S. Senators concerned about impact on biomass: • “the final standards will most assuredly differ from the proposed ones” • EPA must sign final rules by January 16, 2011 • Typically published 3 to 6 weeks later • MACT/GACT compliance date: 3 years later • CISWI compliance date: Up to 5 years later

  8. Other NESHAPs • Portland Cement MACT • Issued September 9, 2010 • EPA anticipated that Hg standards in rule could close Durkee, OR plant even though it is acknowledged as the best controlled plant in world • Litigation to start in early November • Utility MACT • EPA had issued mercury trading program (CAMR) • D.C. Circuit struck down • EPA now developing HAP standard for utility boilers • Separate and distinct from Boiler MACT

  9. Other NESHAPs • Area Source NESHAPs • Huge proliferation over past 18 months • Very poorly written • Very confusing as to applicability • DEQ declining to adopt RICE NESHAP and returning RICE NSPS to EPA • Unprecedented move by DEQ • Will do nothing to help Oregon sources determine applicability • SSM provisions

  10. New NAAQS • NO2 • Issued February 9, 2010 • New standard: • 1 hour: 100 ppb • 3 year average of annual 98th percentile of 1-hour daily maximum concentrations • EPA retaining annual NO2 standard • 53 ppb • PM2.5

  11. New NAAQS • SO2 • Issued June 22, 2010 • New standard: • 1 hour: 75 ppb • 3 year average of annual 99th percentile of 1-hour daily maximum concentrations • EPA revoking: • 24 hour SO2 standard • Annual SO2standard

  12. New NAAQS • PM2.5 • 1997: EPA established annual and 24-hour NAAQS for PM2.5 for the first time • 2006: EPA revised the 24-hour NAAQS for PM2.5 • Very difficult to implement • EPA issued PM10 surrogate policy • Allowed states to regulate PM2.5 by regulating PM10 • EPA now indicating that it will withdraw surrogate policy • Will require formal evaluation of PM2.5 • Problematic due to lack of data and difficulty testing • EQC adopted temporary rules regulating PM2.5 at August meeting

  13. Regional Haze • Statutory mandate to decrease visibility impacts to natural conditions by 2064 • First phase: BART • Applies to sources that pre-dated PSD • Only source in state subject to BART is Boardman • Initial BART requirements established by rule on June 19, 2009 • Comment period just closed on DEQ rework of Boardman BART requirements

  14. Regional Haze After BART • Reasonable Progress Goals • Visibility conditions expected to be achieved at the required milestone dates • First key milestone date is 2018 • BART gets State to 2018 • More controls may be required beyond that • EPA guidance: control requirements extend beyond BART sources

  15. Hell’s Canyon Trend Analysis

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