Ten Steps to Avoid Air Fines

Bob Davis wrote an excellent article in the November 2009 issue of Pollution Engineering magazine. (Full disclosure: I write a column there every two months). It is called “10 steps to avoid air fines”. A few of his compliance tips (in italics) are worth repeating here followed by my own commentaries:

• When it comes to ensuring compliance, make everyone responsible. Hallelujah! Make someone responsible for reviewing the air permit – or any permit for that matter. It is amazing how many people spend oodles of money getting a permit and then just file it away in the desk draw without reading it. It is critical that you read and understand the requirements of your own permit. Don’t wait for an inspector to review it for you.
• Follow the EPA online and stay informed on regulatory actions. One good way to do that is to sign up for EPA (and state agency’s) mailing lists. They are FREE and will keep you posted on the latest regulatory requirements.
• Quiz vendors on potential problems that could lead to trouble. If a vendor tells you his equipment is the best thing since sliced bread, tell him to back it up with full indemnification in writing. In other words, if his wonderful machine causes a violation, he pays your fine.
• Practice vigilance when selecting a stack tester. That is excellent advice. Make sure the tester has good working relationship with the agency that will be reviewing the test results. Talk to the regulatory agency BEFORE hiring the tester. If the tester has a questionable reputation, the regulators will let you know in one way or another. They may not come right out and tell you. But you will sense it.
• Get to know the inspectors and do not hesitate to ask them for guidance. That is good advice up to a point. If you have a good working relationship with your inspector, he/she will offer you guidance unofficially. Many agencies specifically prohibit their inspectors from offering consulting advice to the regulated communities. Do not count on your inspectors as your free consultants. Back to the first point – you need to know your own permit conditions.

EPA finalizes SPCC rules…finally

On November 5, 2009, EPA Administrator signed off on the final amendments to the SPCC (Spill Prevention and Control Countermeasures) rules. These final revisions are made to the December 2008 amendments. The final rules modify the December 2008 rule by removing the provisions to: exclude farms and oil production facilities from the loading/unloading rack requirements; exempt produced water containers at an oil production facility; and provide alternative qualified facilities eligibility criteria for an oil production facility.

For details, click here for the full text of the final rules.

By the way, the fact that these latest revisions “remove” certain exclusions and exemptions previously provided in the 2008 amendments is another example of the reversal of Bush rules undertaken by the Obama Administration.

New directions from the Obama EPA

In less than a year into its new administration, the Obama White House and its EPA Administrator Lisa Jackson have already made quite an imprint on the environmental regulatory landscape.

During his first month in office, President Obama directed EPA to review the action taken by the previous administration in prohibiting California from regulating automobile carbon dioxide emissions. This directive followed the Supreme Court’s ruling under Massachusetts v EPA that carbon dioxide is an air pollutant under the Clean Air Act and that EPA must regulate it if it is found to cause harm to public health and welfare.

EPA promptly issued a draft endangerment study on April 14, 2009 proposing that CO2 and other greenhouse gases pose a threat to public health and welfare. On July 1, 2009, EPA reversed the Bush administration’s decision and allowed California to regulate CO2 from tail pipes.

The Obama EPA is tackling the greenhouse gas issues on two fronts. It is working with Congress to develop new cap-and-trade laws to reduce greenhouse gas while developing its own regulations under the Clean Air Act to regulate it.

On September 30, 2009, Lisa Jackson announced that EPA is proposing new regulation under the Clean Air Act to curb greenhouse gas from industries that emit more than 25,000 tons of CO2 per year. This would bring many plants under the new regulation if it becomes final.

The Obama EPA has also dropped a Bush plan to exempt some 3,500 facilities from reporting chemical releases under the Toxic release Inventory. You can expect to see a few more rule reversals in the future.

EPA gets ready to regulate greenhouse gas

On September 30, 2009, EPA announced a proposal that is focused on large facilities emitting over 25,000 tons of greenhouse gases a year. These facilities would be required to obtain permits that would demonstrate they are using the best practices and technologies to minimize GHG emissions.

The rule proposes new thresholds for greenhouse gas emissions (GHG) that define when Clean Air Act (CAA) permits under the New Source Review (NSR) and title V operating permits programs would be required for new or existing industrial facilities.  Click here for a copy of EPA’s fact sheet on this latest regulatory proposal.

The NSR will trigger the need for PSD (Prevention of Significant Deterioration) permits for new source or major modification in attainment areas.

Some observers have noted that this EPA step is a strategic move to motivate industries to lobby the Senate for a Climate Change Bill. Many in industry would prefer to be regulated under a new Climate Change Bill than under the Clean Air Act.

Just exactly what is “used oil”?

Used oil is defined as any petroleum-based or synthetic oil that has been USED. When you use oil, impurities or contaminants such as dirt, metal scrapings, water or other chemicals can get mixed in with the oil. such impurities may make your oil less effective as a lubricant for example.

Some examples of used oil are engine oil, transmission fluid, refrigeration oil, compressor oils, metal working fluids and oils, laminating oils, electrical insulating oil, industrial process oils, etc. Waste oil is not used oil. Oil that has been spilled is not classified as used oil because it has not been used for its original purpose.

You should recycle your used oil by re-conditioning, re-refining or burning it for energy recovery. EPA has specific management standards that you should comply with if you handle used oil in your business. You should label all containers and tanks as “Used Oil”. Keep these containers in good condition. You are not permitted to store used oil in lagoons, pits or surface impoundment.

If your used oil is mixed with hazardous waste, you may have to dispose of the mixture as hazardous waste. So make sure you store your used oil away from other hazardous wastes.

Always check with your state agencies because they may have more stringent used oil regulations.

When do you need an air permit?

This is a question asked by many people in industry. In almost every state, you are required to obtain a state operating permit if you have an air emission source unlessthat source is specifically exempt by state regulations. An emission source would be any equipment or facility that is capable of emitting air contaminants to the atmosphere.

Different states have different exemptions. For example, in Illinois you are exempt from getting an air permit if your coating operation uses less than 5000 gallons of coating material including thinners (Illinois Title 35, subtitle B, chapter I, section 201.146(g)). If you have a print shop and you use less than 750 gallons of paint a year, you are exempt as well.

In southern California, the Air Quality Management District (AQMD)’s Rule 219 lists all the emission sources that are exempt from getting an air permit. For example, Rule 219(h) exempts printing operations that emit less than 3 lbs of VOC per day or 66 lbs of VOC per calendar month.

By the way, in every state and under the Clean Air Act, you must obtain a construction permit before you are allowed to install any air emission sources.  Sometime they call it a pre-construction permit. If you have purchased a new piece of equipment that is an emission source, you are not allowed to bolt it to the ground or wire it up. You can unwrap it and have it sit on the shop floor while you are waiting for your construction permit to be approved. Many companies have been fined by EPA for installing equipment without a construction permit. The agency may even order you to uninstall the emission source and pay a fine and apply for a construction permit.

This is often a bone of contention between the environmental staff (you) and production staff (them). The production folks may take 3 years to decide on a new piece of equipment. Once they have purchased it, they want to install it and run it right away. This is where you say to them: “No, you can’t do that. We have to apply for a construction permit first and that may take a month or two.”  If they were smart, they would have told you about the new equipment a month earlier before they take delivery of it so that you could start the permitting process.

That would be the ideal situation.

If you need the construction permit in a big hurry, you can pay the agency a fee to get on the “fast track”.

Returning a half-empty (pressurized) gas cylinder to the supplier

Let’s say you have some half-empty pressurized gas cylinders that you wish to return to the supplier. Do you need to manifest them as a hazardous waste because they are reactive (pressurized)?

The answer is: No.

EPA has determined that returning a compressed gas cylinder to the supplier does not constitute disposal on the part of the customer. For most parts, the cylinder itself is the property of the supplier and the customer has no control over what the supplier does with the cylinder and its content once the supplier receives it. So the pressurized cylinder you are returning to the supplier is NOT a RCRA solid waste, according to EPA and therefore it cannot be a hazardous waste.

EPA’s RCRA online document RO14760 states that “returning the cylinder to the supplier does not make the customer a hazardous waste generator.”

Please note that you may still need to ship the pressurized cylinder as a DOT hazardous material.

Global warming – is it a hoax?

Ever since I posted articles on the topic of greenhouse gas, I have been receiving some pretty interesting emails. I have responded to some here and I have also deleted some because they were more like rants than comments.

 One reader who used a manual typewriter and mailed in his letter (rant) to my editor at Pollution Engineering claimed that global warming is all but a hoax perpetuated by Al Gore and the liberals. Another said that the Supreme Court was made up of a “bunch of stupid lawyers” and that the scientists at EPA sold out to their political masters. I can go on but I won’t.

Here is the real scoop as I can best figure out. 

Several years ago, a number of states filed a lawsuit against the Bush EPA for failing to regulate CO2 emissions from cars. The Bush EPA’s position was that it did not have the authority to regulate CO2 under the Clean Air Act. The Appellate Court in Washington DC sided with EPA. The states appealed the case to the Supreme Court.

The landmark Supreme Court case (Massachusetts et al. v. Environmental Protection Agency et al. No. 05–1120) was decided on April 2, 2007.

Here is what the court said:

CO2 is an air pollutant under the Clean Air Act because §7602(g) of the Act defines “air pollutant” as “any air pollution agent or combination of such agents, including any physical, chemical . . . substance or matter which is emitted into or otherwise enters the ambient air . . . .”  The Court told EPA that since CO2 is a pollutant, the Clean Air Act requires EPA to regulate it IF it finds that CO2 impacts “public health and welfare”.

The Court reminded the Bush EPA that the purpose of the Clean Air Act as mandated by Congress is to “protect and enhance the quality of Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.” The law further defines the term “effects on welfare” to include “effects on soils, water, crops, vegetation, man-made materials, animals, wildlife, weather, visibility, and climate…..”

So EPA’s responsibility and obligation under the Act are quite clear.

For those inclined on conspiracies who claim that the Clean Air Act, the Supreme Court and EPA are part of a liberal conspiracy to dream up climate change as a hoax on humanity, I only need to remind them that the Clean Air Act was signed into law in 1990 by a Republican President – George H.W. Bush. He could have vetoed it but he didn’t. Majority of the justices on the Supreme Court that ruled on this case were appointed by Republican presidents. Even the Bush EPA admitted that CO2 is a greenhouse gas. It just didn’t want to regulate it.

So what is now before the EPA is very simple. If it finds that CO2 endangers “public health and welfare”, it has no choice but to regulate it. It is the law of the land as demanded by the Clean Air Act and reaffirmed by the Supreme Court.

By the way – for those of you who may be impressed by pedigree: The U.S. National Academy of Science believes in global warming too! It is asking for quicker response to deal with the problem. Perhaps it is part of the conspiracy too?

I seriously doubt it.

Why SPCC is not delegated to the states?

As we all know, many federal environmental programs are delegated to the state levels for implementation with oversight from EPA. Such is not the case with the Spill Prevention Control and Countermeasures (SPCC).

When Congress passed the Clean Water Act in 1972, it directed the President to develop a National Contingency Plan. Under Section 311(j)(1) of the Act, the President is directed to est”lish procedures, methods,a nd equipment and other requirements for equipment ot prevent discharge of oil and hazardous substances from vessels and from onshore facilities…”…..

The President is specifically authorized to delegate the administration of Section 311 of the Clean Water Act to “the heads of those Federal departments, agencies, and instrumentalities which he determines to be appropriate”.  There is no mention of any authority to delegate to state agencies.

Some state governments have enacted state laws that require their industries to have spill prevention plans that are the same as those spelled out in the SPCC regulations. California is one of these states. So if an inspector from one of the California state regional water quality control boards finds that you don’t have a SPCC plan, the agency can cite you  for violating the state law - but not the federal law.

Only an EPA inspector can cite you for SPCC violations.

Corporate view of safety program vs environmental protection

As someone who has seen up close and personal how senior management views its health and safety program and its environmental protection program, I would like to share some of my thoughts here with our readers.

Corporate health and safety program gets much higher level of management support for a number of reasons. Cost accounting is the main one. Performance of health and safety is monitored at the corporate level through workers compensation costs. A program that drives down the workers comp costs is viewed as an effective one. And rightly so. When the management board sees an 80% reduction in workers comp cost in a few years after implementation of a safety program, it is going to continue to support it with large budgets and manpower.

Safety performance can be reduced to dollar and cents.

Environmental performance, on the other hand, is much harder to track. Environmental protection budgets are often hidden in O&M. The benefits are even harder to quantify – as opposed to a workers comp cost. An environmental program that is working for the company means the company is not being fined. There isn’t a line item in the monthly budget to senior management that reflects that. On the other hand, senior management only knows that the environmental program has failed when it is hit with a big fine. In other words, senior management does not see a need to maintain or improve the environmental budget until something bad happens.

The key really lies in environmental cost accounting. If a company’s accounting system can show management the financial benefits it is getting from its environmental program, management will continue to support it in the same manner that it is supporting the safety program.

Unfortunately, not too many companies have such an accounting system.