I AM SWANA Blog

SWANA Comments on EPA’s Tailoring Rule
Shannon Crawford, Manager of Legislative and Regulatory Programs

On Wednesday, December 23, 2009, SWANA submitted comments to EPA on their Prevention of Significant Deterioration (PSD) and Title V Greenhouse Gas Tailoring Rule. This proposal is targeted at facilities with emissions over 25,000 tons of CO2e annually and would require them to obtain permits that would demonstrate they are using the Best Available Control Technologies (BACT) to minimize GHG emissions.

Previously GHG were not subject to provisions of the Clean Air Act. However, EPA holds that GHG will be upon promulgation of the light duty vehicle rule, anticipated in the spring of this year, “regulated pollutants”, and as such would be subject to PSD and Title V requirements. We agree that if EPA were to move forward with this rulemaking, a “tailoring” of the thresholds for each of these programs must be performed to avoid the unintended consequence of subjecting a large number of small sources to the regimens of PSD and Title V.

In our letter we chose not to comment on EPA’s interpretation of their legal authority. We are aware that there are a number of challenges to this interpretation, which contain very convincing arguments that EPA may be over-stepping their legal boundaries. While we did not address this issue, our comments should not be misconstrued as acceptance of EPA’s interpretation of their legal authority.

We have a number of concerns with EPA’s proposal as currently written with our most significant being: 1) the alternative thresholds proposed by EPA for the first phase are too low and do not represent “major sources” and 2) the development of BACT must occur with the involvement of the solid waste industry.

We believe that the proposed threshold level of 25,000 tpy CO2e represents smaller sources and is not keeping with Congressional intent for PSD and Title V to be “major source” programs. There is no basis for such a low threshold and EPA has not presented enough rationale for choosing 25,000 tpy. EPA has chosen this threshold based on the number of facilities they believe will be impacted instead of using the Congressional intent of this provision to only regulate “major sources”.

Utilizing equivalent criteria pollutants from combustion sources yields CO2 emissions ranging from 100,000 to over 700,000 tpy CO2. Utilizing EPA’s existing PSD major source threshold for NMOCs, established for landfills, yields an equivalent CO2 level over 745,000 MTCO2e. Using these approaches as guidance, SWANA recommended that EPA provide an alternative threshold that truly represents a “major source”.

Workgroups are currently developing presumptive BACTs. BACT for CO2e are not well-established and therefore the solid waste industry must be represented on these workgroups. EPA themselves have said that landfills are one of the largest effected sectors, therefore it is inappropriate to not include representatives from this industry to participate in the development of BACT. This workgroup alone should not develop presumptive BACT; they should be promulgated as regulations with notice and opportunity for comment.

Additionally, there is the potential for unfair treatment of waste-to-energy under this ruling. Waste-to-energy operations would be affected during the second phase of the rule, the presumptive BACT implementation. Most plants operate with a Title V permit, so they would not need to apply for one during the initial phase of the rule. However these operations would be affected when EPA attempts to impose BACT on their GHG emissions. Waste-to-energy operations provide an essential public service and have been shown to be a net reducer of GHG on a life cycle basis. Additionally their emissions are largely biogenic. We strongly believe that raising the threshold and differentiating between anthropogenic and biogenic will help reduce the potential unfair treatment this proposed rule would have on this form of renewable energy.

To read our full letter to EPA please click here.

For more information on the Tailoring Rule, please see our previous memo dated October 7, 2009.

Please contact me directly with any questions.

Shannon Crawford
Manager of Legislative and Regulatory Programs
240.494.2241 - direct