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Process Industries
ALERT! New Court Ruling
Important Court Action:
A December 19, 2008 ruling was made in the U.S. Court of Appeals, D.C. Circuit, Case No. 02-1135. The case was consolidated with Nos. 03-1219, 06-1215, 07-1201, and the American Chemistry Council intervened on behalf of EPA. Petitioners challenged the final rules promulgated by U.S. EPA exempting major sources of air pollution from normal emission standards during periods of "startups, shutdowns, and malfunctions" (SSM) and imposing alternative, and "arguably less onerous requirements in their place."
The 2-1 majority Appeals Court said, "Because the general duty that applies during SSM events is inconsistent with the plain text of section 112 of the Clean Air Act (CAA), even accepting that 'continuous' for purposes of the definition of 'emission standards' under CAA section 302(k) does not mean 'unchanging,' the SSM exemption violates the CAA's requirement that some section 112 standard apply continuously. Accordingly, we grant the petitions and vacate the SSM exemption."
In a final rule adopted in 2003, EPA "decided instead to adopt a less burdensome approach," to the SSM regulation requiring members of the public to make a "specific and reasonable request" of the permitting authority to request the SSM plan from the source and thus making it more difficult to access and obtain. The Sierra Club challenged the 2003 Rule in a petition for review. The Natural Resources Defense Council (NRDC) also filed a petition for reconsideration on the ground that any limitation on the public availability of the SSM plans was unlawful. EPA agreed to take comment on the new SSM provisions, and the consolidated cases were held in abeyance pending reconsideration.
In 2006, EPA retracted the requirement that sources implement their SSM plans during SSM periods; and instead comply with the "general duty to minimize emissions." EPA required a "post-event reporting" and eliminated the requirement that the Administrator obtain a copy of a source's SSM plan upon request from a member of the public and determined that the public may only access those SSM plans obtained by a permitting authority; but the permitting authority was not "required to do so" -- it was discretionary.
The petitioners, petitioned for reconsideration and contended that the exemption from compliance with emissions standards during SSM events is both unlawful and arbitrary, and that the 2002, 2003, and 2006 rules unlawfully and arbitrarily fail to 'assure compliance' with 'applicable requirements' under Title V.
The majority Appeals Court ruled, "In sum, petitioners' challenge to the exemption of major sources from normal emission standards during SSM is premised on a rejection of EPA's claim of retained discretion in the face of the plain text of section 112. 'Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of a contrary legislative intent'. NRDC, 489 F.3d at 1374 (quoting TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001)). The 1990 Amendments confined the Administrator's discretion, see New Jersey, 517 F.3d at 578, and Congress was explicit when and under what circumstances it wished to allow for such discretion, id. at 582. 'EPA may not construe [a] statute in a way that completely nullifies textually applicable provisions meant to limit its discretion.' New Jersey, 517 F.3d at 583 (quoting Whitman, 531 U.S. at 485). Accordingly, we grant the petitions without reaching petitioners' other contentions, and we vacate the SSM exemption. See New Jersey, 517 F.3d at 583 (citing Allied Signal, Inc. v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146, 150-51 (D.C. Cir. 1993)).
The minority, dissenting opinion indicated, "I do not agree that we have jurisdiction over Sierra Club's petition for judicial review. The original regulations at issue. . . exempt periods of startup, shutdown, and malfunction from opacity and non-opacity emission standards. When EPA promulgated these regulations in 1994, Sierra Club took no legal action. Yet under the Clean Air Act a petition for judicial review of an EPA regulation must be filed within 60 days of the regulation's publication in the Federal Register. . ."
To access the complete opinion and dissent (click here) .
What provisions did the Court vacate?
The Court references the following sections of the Part 63 General Provision regulations as being the SSM exemption that was appealed and vacated:
§ 63.6 Compliance with standards and maintenance requirements....
(e) Operation and maintenance requirements. (1)(i) At all times, including periods of startup, shutdown, and malfunction, the owner or operator must operate and maintain any affected source, including associated air pollution control equipment and monitoring equipment, in a manner consistent with safety and good air pollution control practices for minimizing emissions. During a period of startup, shutdown, or malfunction, this general duty to minimize emissions requires that the owner or operator reduce emissions from the affected source to the greatest extent which is consistent with safety and good air pollution control practices. The general duty to minimize emissions during a period of startup, shutdown, or malfunction does not require the owner or operator to achieve emission levels that would be required by the applicable standard at other times if this is not consistent with safety and good air pollution control practices, nor does it require the owner or operator to make any further efforts to reduce emissions if levels required by the applicable standard have been achieved. Determination of whether such operation and maintenance procedures are being used will be based on information available to the Administrator which may include, but is not limited to, monitoring results, review of operation and maintenance procedures (including the startup, shutdown, and malfunction plan required in paragraph (e)(3) of this section), review of operation and maintenance records, and inspection of the source.
(f) Compliance with nonopacity emission standards -(1) Applicability. The non-opacity emission standards set forth in this part shall apply at all times except during periods of startup, shutdown, and malfunction, and as otherwise specified in an applicable subpart. If a startup, shutdown, or malfunction of one portion of an affected source does not affect the ability of particular emission points within other portions of the affected source to comply with the non-opacity emission standards set forth in this part, then that emission point must still be required to comply with the non-opacity emission standards and other applicable requirements.
(h) Compliance with opacity and visible emission standards -(1) Applicability. The opacity and visible emission standards set forth in this part must apply at all times except during periods of startup, shutdown, and malfunction, and as otherwise specified in an applicable subpart. If a startup, shutdown, or malfunction of one portion of an affected source does not affect the ability of particular emission points within other portions of the affected source to comply with the opacity and visible emission standards set forth in this part, then that emission point shall still be required to comply with the opacity and visible emission standards and other applicable requirements.
What does this mean to MON-affected facilities?
It is not yet known how EPA will respond, but there is a 45 day period for the filing of an appeal. It would seem that if not appealed and action taken by the Court, that facilities will need to comply with the standard, including numerical limitations, even during periods of SSM.
In terms of Subpart FFFF, the vacated provision was referenced in Table 12 of the rule as applicable, so this would also apply to MON affected sources. MON regulations §63.2520(e)(4) and (5) specify the SSM reporting requirements:
(4) For each SSM during which excess emissions occur, the compliance report must include records that the procedures specified in your startup, shutdown, and malfunction plan (SSMP) were followed or documentation of actions taken that are not consistent with the SSMP, and include a brief description of each malfunction.
(5) The compliance report must contain the information on deviations, as defined in §63.2550, according to paragraphs (e)(5)(i), (ii), (iii), and (iv) of this section....
It is believed that the reporting requirements would stay the same, except that facilities will need to report deviations, including those from a numerical limitation, during periods of SSM. We will have to examine this more closely and will be looking to EPA to clarify what it expects in terms of the semi-annual report which is due in February 2009.
Exxon to expand, modify 3 refineries.
Exxon Mobil Corp., has plans to invest more than $1 billion to expand and modify three refineries to increase the company's supply of cleaner burning diesel. Read Article
Obama's green agenda raises concerns for some.
Throughout his campaign, Obama pledged to reduce carbon dioxide emissions by 80 percent over the next four decades and invest $150 billion in alternative energy sources. Read Article
EPA Finalizes Rule Reconsidering Inclusion of Fugitive Emissions
On December 10, 2008, EPA finalized revisions to the December 31, 2002 New Source Review (NSR) Improvement rules to change the requirements of the major NSR programs regarding the treatment of fugitive emissions.
"The final rule requires that fugitive emissions be included in determining whether a physical or operational change results in a major modification only for sources in industries that have been designated through rulemaking under section 302(j) of the Clean Air Act."
Spill Prevention, Control and Countermeasure (SPCC) Rule Amendments - Finalized November 2008
The Oil Pollution Prevention regulation (40 CFR part 112) "SPCC rule" outlines requirements for the Prevention, Preparedness, and Response to oil discharges. The November Amendments incorporate new exemptions, provided options for flexibility, and opportunities for streamlining the plan development process.
Highlights include:
- A plan template for certain qualified facilities to complete and self-certify;
- Extends "qualified facility" status to certain smaller oil production facilities;
- Amends the general secondary containment requirement;
- Amends the facility security requirements to allow for tailoring security measures to the facility's specific characteristics and location
Subject facilities include owners or operators of non-transportation related facilities that:
- Drill, produce, store, process refine, transfer, distribute use or consume oil or oil products; and
- Could reasonably be expected to discharge oil to U.S. navigable waters or adjoining shorelines.
AND Meet at least one of the following capacity thresholds:
- Above ground oil storage capacity greater than 1,320 gallons, or
- Completely buried oil storage capacity greater than 42,000 gallons.
Additional information is available on the EPA website. The EPA Fact Sheet is available here - Download SPCCFactsheet_FinalAmendments_Nov08
Chemical Manufacturing Area Source NESHAP (CMAS) proposed.
On October 6th, EPA proposed the National Emissions Standards for Hazardous Air Pollutants (NESHAP) for Chemical Manufacturing Area Sources –denoted as the CMAS Rule (40 Part 63 Subpart VVVVVV) in the Federal Register. The rule is likely to affect facilities operating below major source thresholds for the following MACT / NESHAP standards.
- Hazardous Organic NESHAP (HON) Rule – Subpart F
- Pharmaceuticals Production – Subpart GGG
- Pesticide Active Ingredient Production – Subpart MMM
- Polymers & Resins Rules – Parts I, II, III & IV
- Miscellaneous Organic NESHAP (MON) Rule – Subpart FFFF
Energy and Renewable Resources
Obama pick of Carol Browner as energy czar will put focus on alternative energy.
Obama has promised to pump $150 billion in federal money over the next decade into development of new and alternative energy sources. Read Article
Unlikely coalition to steer debate over gas emissions.
AEP, Honda and others provide guidance to EPA on GHG emissions. Read Article
High cost, inconsistent permitting processes slow solar energy use.
A lack of consistency between local government agencies regarding the permitting process penalizes those who try to go green. Read Article
Food Processing
Food Company Executives Remain Optimistic.
Fitch 2009 U.S. Commodity Food Outlook: Liquidity and Leverage Will Be the Focus.
2009 Food Trends
Information Technology
Microsoft Blog:
Preview the Gen4 Modular Data Center. Read Article
Simplifying Master Data Management Deployments.
Compared to the myriad group of "integrated" systems that most companies are managing today, master data management (MDM) solutions are much simpler to manage and maintain, and provide companies with more business benefits. Read Article
Reducing Oil Fouling to save HVAC Costs.
By reducing oil fouling most products note that they improve heat coil transfer by up to 73%, and to produce cold air faster. Read Article